Monday, June 20, 2022
Alex Lemann has posted to SSRN The Duty to Warn in the Age of Automation. The abstract provides:
Autonomous vehicles are expected to drive far more safely than humans do, and yet they create novel risks of their own. This Article explores how the risks of autonomous vehicles should be communicated to those who buy and use them.
In low-level automation systems, where drivers are required to monitor their cars’ driving, instructions provide the information drivers need to understand their role and perform it safely. The fatal crashes involving low-level automation that have already occurred show that instructions alone are not sufficient, and that cars must be designed to account for humans’ tendency to lose focus when engaged in “passive vigilance.”
High-level automation, in which the only driver is an algorithm and there is nothing for the human passenger to do, presents a thornier problem. What form disclosure of the risks of highly autonomous vehicles should take depends on what we expect disclosure to accomplish.
One model of disclosure is utilitarian. Here the goal is to nudge people in the direction of better choices, and disclosures are tailored to encourage optimal behavior. Implicitly adopting this framework, scholars who have addressed this issue argue that the risks of autonomous driving should be presented numerically: disclose to consumers a price, like a risk-rated insurance premium, as an indication of how well the autonomous vehicle they are about to buy performs on the roadways.
Another model of disclosure, however, is deontological. Built on ideas like consent and autonomy, this view of disclosure aims to provide people with salient notice of the risks they might choose to encounter, so that they are not subjected to risk involuntarily. This account has deep roots in our legal culture and, I argue, counsels against disclosing the risks of autonomous vehicles solely in the form of a price. Instead or perhaps in addition, customers should be given a qualitative sense of the hazards they face in driverless cars.
Friday, April 22, 2022
Cathy Sharkey has posted to SSRN Products Liability in the Digital Age: Online Platforms as 'Cheapest Cost Avoiders'. The abstract provides:
Products liability in the digital age entails reckoning with the transformative shift away from in-person purchases from brick-and-mortar stores toward digital purchases from e-commerce platforms. The epochal rise of the online storefront has vastly expanded the prevalence of direct-to-consumer sales, implicating a panoply of potential harms to consumers and raising the question of how liability rules should respond, especially in light of the development of international e-commerce and cross-border sales.
Consideration of liability for online platforms as “cheapest cost avoiders” reveals the mechanism by which courts’ decision to impose liability on new entities derives from the regulatory needs of society, and hence the desire to pin responsibility on entities in the best position to have readily avoided harm arising from the imposition of excessive risks. Products liability is a microcosm of how the common law evolves over times, specifically, here, to respond to new societal risks—posed by the automobile, mass-produced goods, and now, digital e-commerce. At each juncture in its development, judges relied explicitly on deterrence, prevention of harm, or CCA rationales to address new forms of risks and prevent them from materializing into harms, and in doing so, recognized new harms and/or expanded tort liability.
Tuesday, December 7, 2021
Phil Goldberg discusses two cases before the New Jersey Supreme Court on the issue of 510(k) evidence, i.e., whether courts should allow juries to hear evidence regarding the FDA's review of medical devices when determining whether those devices are defective. The lede:
The New Jersey Supreme Court has agreed to hear a pair of cases that will have a major impact on medical
device liability and, in turn, the availability of important new devices that offer technological advances over
previous products. The issue is over the admissibility of evidence that the manufacturer received the U.S. Food
and Drug Administration’s (FDA) clearance before bringing the device to market. Plaintiffs’ lawyers want juries
to decide core liability issues—whether a medical device is defective or its manufacturer should be subject to
punitive damages for how it brought the device to market—as if the FDA did not exist.
The piece is here: Download Goldberg 510(k) Article for WLF
Wednesday, October 7, 2020
Last week, the Supreme Court of Ohio ruled that Amazon is not a supplier for purposes of the Ohio Products Liability Act, and therefore not liable for the death of a teenage boy killed by an overdose of caffeine powder sold on the website. Marianna Bettman has details at Legally Speaking Ohio.
Thursday, October 1, 2020
On Monday, the Pennsylvania Superior Court held that the Protection of Lawful Commerce in Arms Act (PLCAA) was unconstitutional. In March 2016, J.R. Gustafson was killed when his 14-year-old friend accidentally shot him with a semi-automatic handgun that he thought was unloaded. Gustafson's parents sued both the manufacturer of the weapon and the store that sold it. Both defended themselves by invoking the PLCAA, a federal law passed in 2005 that provides businesses cannot "be liable for the harm caused by those who criminally or unlawfully misuse firearm products or ammunition products that function as designed and intended." The trial court dismissed the case in January, but the appellate court held that PLCAA violates the Tenth Amendment and principles of federalism. This is the first court to hold the law is unconstitutional in its entirety. CNN has the story. The opinion, thanks to Tim Lytton, is here: Download Gustafson-opinion (002)
Monday, September 14, 2020
Mark Geistfeld has posted to SSRN two chapters from Principles of Products Liability (3rd ed.). The abstract provides:
Two chapters from the third edition of Principles of Products Liability (Foundation Press 2020), a state-of-the-art study of products liability. The book shows how ancient laws have evolved into liability rules capable of solving the safety questions raised by new or emerging technologies, ranging from autonomous vehicles to the Amazon online marketplace. Identifying a development that has been largely ignored by scholars, the book shows how the rule of strict products liability from the last century has been transformed into a more comprehensive liability regime — “strict products liability 2.0” — that incorporates the risk-utility test into the consumer-expectations framework of strict products liability. Across the important issues, this more comprehensive formulation of the implied warranty sharpens the inquiry about what’s at stake, supplying strong rationales for a host of otherwise contentious doctrines — from federal preemption to the relevance of scientific evidence in toxic-tort cases. The analysis throughout relies on extended discussion of the black-letter rules and associated controversies in the case law, providing a solid foundation for understanding and incisively analyzing this vitally important area of the law.
Monday, July 6, 2020
A father has sued the owner of Hershey Park and the designer and builder of the Storm Runner roller coaster over an incident from June 2018. The suit alleges that his 9-year-old son was not able to pull the harness down and secure it, and that park employees did not come and help or check that he was securely fastened. The boy was able to leap off the ride as it was starting. The suit includes allegations of design defect; plaintiff claims the roller coaster should not be able to move unless all of the harnesses are securely fastened. Although no physical injuries resulted, plaintiff alleges negligent infliction of emotional distress on behalf of both himself and his son. PennLive has the story. Thanks to Shannon Costa for the tip.
Wednesday, July 1, 2020
A year ago, the Third Circuit held that Amazon was a seller for purposes of Pennsylvania products liability, even if the goods were owned by third parties. (Coverage here) Then the Third Circuit decided to revisit the case en banc. Last month, the Third Circuit certified the issue to the Pennsylvania Supreme Court:
This is an issue of first impression and substantial public importance, yet we cannot discern if and how 402A applies to Amazon. We are,as a result, unable to predict how the Pennsylvania Supreme Court would rule in this dispute. NOW THEREFORE, the following question of law is certified to the Supreme Court of Pennsylvania for disposition according to the rules of that Court:
Under Pennsylvania law, is an e-commerce business, like Amazon, strictly liable for a defective product that was purchased on its platform from a third-party vendor, which product was neither possessed nor owned by the e-commerce business?
Oberdorf v. Amazon.com, Inc., No 18-1041, 2020 U.S. App. LEXIS 17974 (3d Cir. June 2, 2020)
Thanks to Shannon Costa for the tip.
Tuesday, April 28, 2020
J&J is facing thousands of suits alleging the talc in its baby powder causes cancer. A district judge in New Jersey, overseeing the MDL, just handed down a Daubert ruling allowing plaintiffs' experts to testify. George Conk has details at Otherwise.
Wednesday, April 15, 2020
At Torts Today, George Conk is reporting the death of the attorney who won Henningsen v. Bloomfield Motors in 1960. Here is the family's obituary:
Englewood, NJ Bernard Chazen - Englewood, NJ – age 96 on April 11, 2020
Born to Nathan and Esther Chazen in New York, New York.
Beloved husband of Bernice Chazen for 56 years who predeceased him in 2010. A wonderful father to David, Jonathan (his wife Cynthia) and Sarah (her husband Martin). He raised his family in Englewood and served on the Englewood Board of Education (1965-1969, President 1968-1969). General Counsel to the Englewood Redevelopment Agency (1970-1973).
A loving grandfather to grandsons Sam, Max, Ben, Daniel and Jacob. A first generation American citizen. Worked in his parent’s millinery shop as a child.
As a member of America’s greatest generation he enlisted in the Navy during World War II and served as a lieutenant aboard an LST in the Pacific Theater. Upon his return he attended Middlebury College, Columbia University (JD) and Rutgers University (LLM) thanks to the GI Bill. He continued to serve in the Navy reserves as a JAG officer and retired with the rank of Captain.
In 1949 he began to practice law in New Jersey. His contributions to American jurisprudence in the field of product liability improved the lives of all Americans. He believed that manufacturers have a responsibility to make their products safe for use. There was a time that manufacturers of a defective products were not legally responsible to the consumer because the consumer did not purchase the product directly from the manufacturer and lacked privity of contract. He searched for the right case to take up on appeal and change the law. He found it and argued the landmark 1960 case, Henningsen v. Bloomfield Motors, and pioneered modern product liability law into what became the law of the land.
Manufacturers are now incentivized to make safe products and avoid liability for defective products that injure consumers. He argued cases before the US Supreme Court.
He was an Associate Editor of the New Jersey Law Journal from 1967 until his retirement in 2008 and a prolific writer of editorials. He often lectured to other lawyers on a variety of legal topics for continuing legal education programs run by ICLE and Inns of Court. He was appointed to numerous committees by the New Jersey Supreme Court. He was appointed to numerous commissions by the Governor and served on the New Jersey Law Revision Commission. He was a Certified Civil Trial Attorney. He was considered a “lawyer’s lawyer”.
Thursday, April 2, 2020
At JD Supra, a team from King & Spalding discusses tort immunity under the PREP Act and COVID-19 Response Declaration. The basics:
Pursuant to the Public Readiness and Emergency Preparedness Act (“PREP Act”), on March 17, 2020, the Secretary of Health and Human Services (“HHS”) published the Declaration Under the Public Readiness and Emergency Preparedness Act for Medical Countermeasures Against COVID-19. The COVID-19 Declaration immunizes broadly certain entities from “suit and liability under federal and state law with respect to all claims of loss” related to the manufacture, testing, development, distribution, administration and use of certain countermeasures to COVID-19.
Wednesday, October 30, 2019
At Notice & Comment, Bernard Bell has posted "Fortieth Anniversary: The Commerce Department’s Foray Into Re-Writing Products Liability Law," which describes the history of the Model Uniform Products Liability Act.
Tuesday, October 22, 2019
Behind an aggressive approach by Judge Polster of the Northern District of Ohio, the bellwether trial of Cuyahoga and Summitt (Ohio) counties against various manufacturers, distributors, and retailers of opioids has settled for $260M. The settlement has increased momentum for a grand resolution of all opioid claims at $48B, with talks to resume as early as today. Reuters has coverage here.
Monday, October 21, 2019
Christoph Busch has posted to SSRN When Product Liability Meets the Platform Economy: A European Perspective on Oberdorf v. Amazon. The abstract provides:
On 3 July 2019 the United States Court of Appeals for the Third Circuit handed down a ruling in the case Oberdorf v. Amazon which could have a seismic effect for online marketplaces on both sides of the Atlantic. The case not only puts a spotlight on how product liability law is applicable in the platform economy. It could also influence the broader transatlantic debate about the future of platform liability. This editorial for the Journal of European Consumer and Market law offers some European reflections on the Oberdorf case and its potential ramifications for the EU policy debate.
Wednesday, October 16, 2019
Edward Janger & Aaron Twerski have posted to SSRN The Heavy Hand of Amazon: A Seller Not a Neutral Platform. The abstract provides:
Since the adoption of Section 402A of the Second Restatement of Torts, every party in a product’s distribution chain has been potentially liable for injuries caused by product defects. Consumers who buy from reputable sellers are almost always guaranteed that they will have a solvent defendant if injured by a product defect. Amazon, though responsible for a vast number of retail sales, has sought to avoid liability by claiming that it is not a seller but a neutral platform that merely facilitates third-party sales to consumers. With the exception of one court most courts have sided with Amazon and left injured consumers without a remedy against insolvent third-party sellers. All of the decided cases have failed to examine the nuances and complexity of how Amazon does business. This essay puts the lie to Amazon’s claim that it is not a seller by demonstrating how Amazon controls third-party sales and hides its true role from consumers.
Tuesday, October 15, 2019
I'm a bit late reporting this, but last week a Philadelphia jury awarded $8 billion in punitive damages to a man who alleged a drug manufactured by J&J caused him to grow breasts. The lawsuit claimed J&J was aware of the risk, but failed to warn physicians. In 2015, the plaintiff was awarded $680,000 in compensatory damages. Undoubtedly a challenge based on the ratio is forthcoming. America Now has details.
Thursday, September 5, 2019
A Philadelphia man alleged Wawa knowingly sold coffee in defective cups, leading to his scalding injury:
The main thrust of the litigation is that the defendants allegedly knew the model cup manufactured by RPC Letica and used by Wawa, the Model 24 HDC Cup, was defective, but took no action to correct the cup’s design and make it safe for consumers.
The suit stated on Feb. 25, 2017, Hall purchased coffee from a Wawa store and when holding the cup in his hand, the sides of the cup buckled, causing the cup's contents of scalding hot coffee to spill onto his lap, resulting in severe injuries.
The case settled for an undisclosed amount of money. The plaintiff was seeking damages in excess of $50,000, plus punitive damages, costs and interest. Pennsylvania Record has the story.
Thursday, August 29, 2019
Back in July, I reported the Third Circuit had held that, under Pennsylvania law, for products liability purposes, Amazon is a seller of items appearing on its website, even if they are owned by third parties. The Third Circuit has agreed to take up the issue en banc. Law 360 has the story.
Tuesday, August 27, 2019
In the first trial against an opioid manufacturer, a judge in Oklahoma found Johnson & Johnson liable for a public nuisance and ordered it to pay $572 million to the state of Oklahoma. The court found J&J played down the dangers and oversold the benefits of opioids, forcing the state to pay addiction treatment costs. The state had sought $17 billion. J&J promises to appeal. NYT has the story.
Monday, July 22, 2019
Elissa Philip Gentry and Benjamin McMichael have posted to SSRN Responses to Liability Immunization: Evidence from Medical Devices. The abstract provides:
The Supreme Court's decision in Riegel v. Medtronic unexpectedly and immediately immunized medical device manufacturers from certain types of state tort liability. Riegel immunized manufacturers from liability if their devices had been approved through the Food and Drug Administration's most rigorous|and costly|review process, premarket approval ("PMA"). Exploiting this unanticipated decision, we examine whether manufacturers strategically respond to this new immunity. We find evidence that, following the Riegel decision, device manufacturers file more PMA applications for high risk product categories (relative to the comparable change for low risk categories), suggesting that firms are sensitive to the newly immunized risk. We additionally find evidence that physician treatment patterns with respect to medical devices also change, consistent with Riegel shifting liability away from device manufacturers and towards physicians. The analysis provides evidence that sophisticated actors respond to changes in their expected legal liability and that technical legal decisions have important ramifications for the provision of health care.