TortsProf Blog

Editor: Christopher J. Robinette
Southwestern Law School

Monday, April 22, 2024

Sharkey on Platform Liability and Deterrence

Cathy Sharkey has posted to SSRN The Irresistible Simplicity of Preventing Harm.  The abstract provides:

In Loomis v., the California Court of Appeal confronts the most pressing products liability issue of our time: the extent to which an online marketplace is liable for injuries caused by defective products sold on its platform. In a trailblazing concurrence destined to enter the torts canon, Justice John Wiley highlights Amazon’s ability to influence the safety of the products it makes available for sale, and uses the case to remind us that the “deep structure of modern tort law” is built to “minimize the social costs of accidents.” Similarly, Justice Wiley cuts a clear path through the thicket of the economic loss rule, institutional (or vicarious) liability and punitive damages cases by following the torts lodestar: the irresistible simplicity of preventing harm.

April 22, 2024 in Products Liability, Scholarship | Permalink | Comments (0)

Friday, April 5, 2024

Sharkey on Products Liability and AI

Cathy Sharkey has posted to SSRN A Products Liability Framework for AI.  The abstract provides:

A products liability framework, drawing inspiration from the regulation of FDA-approved medical products—which includes federal regulation as well as products liability—holds great promise for tackling many of the challenges artificial intelligence (AI) poses. Notwithstanding the new challenges that sophisticated AI technologies pose, products liability provides a conceptual framework capable of responding to the learning and iterative aspects of these technologies. Moreover, this framework provides a robust model of the feedback loop between tort liability and regulation.

The regulation of medical products provides an instructive point of departure. The FDA has recognized the need to revise its traditional paradigm for medical device regulation to fit adaptive AI/Machine Learning (ML) technologies, which enable continuous improvements and modifications to devices based on information gathered during use. AI/ML technologies should hasten an even more significant regulatory paradigm shift at the FDA away from a model that puts most of its emphasis (and resources) on ex ante premarket approval to one that highlights ongoing postmarket surveillance. As such a model takes form, tort (products) liability should continue to play a significant information-production and deterrence role, especially during the transition period before a new ex post regulatory framework is established.

April 5, 2024 in Products Liability, Scholarship | Permalink | Comments (0)

Tuesday, January 30, 2024

$2.25 Billion Verdict Against Bayer for Roundup

A Pennsylvania man has been awarded $250,000 in compensatory damages and $2 billion in punies as a jury determined his non-Hodgkins lymphoma was caused by using Roundup in his yard for several years.  This is one of 6 recent plaintiff wins in Roundup trials, though the company has won 10 of the last 16.  In 2020, Bayer settled most of the then-existing cases for $9.6 billion, but was unable to obtain a settlement for future cases.  Over 50,000 claims are currently pending.  

U.S. News has the story.

January 30, 2024 in Current Affairs, Products Liability | Permalink | Comments (0)

Thursday, December 14, 2023

TN: Economic Loss Doctrine Restricted to Products Liability

The Supreme Court of Tennessee recently restricted the economic loss doctrine to products liability cases.  Commercial Painting Co. v. Weitz Co. LLC, 676 S.W.3d 527, 540  (Tenn. 2023) (“[T]he economic loss doctrine should only apply in products liability cases. We decline to extend the doctrine to services contracts.”).

December 14, 2023 in Current Affairs, Damages, Products Liability | Permalink | Comments (0)

Monday, December 11, 2023

Products Liability as a Capstone Course, Again

I just finished teaching Products Liability for the fifth time; it is a very fun course to teach.  I recall thinking that it made a great capstone course years ago, and I wanted to revisit my thoughts on the issue.  After re-reading my post from July 2016, I find my view is exactly the same.  Here is what I said then:

As I wrote last month, I am teaching Products Liability this summer.  It has been over 4 years since I last taught it; the last time through, the course was a 2-credit, paper course.  I am now teaching a 3-credit, exam course.

Perhaps I wasn't thinking in these terms in 2012, but I am struck this time through by how well Products could serve as a capstone course, roughly understood as a culminating course that integrates multiple subject areas.  Obviously, Products is heavily tort-oriented.  One of the common causes of action for an injury by product is negligence, and that is covered (again), including duty, breach, causation, damages, and defenses.  Of course, the sales concept of warranty is thoroughly covered.  But there is more.  A lot of evidence concepts are reviewed, such as Daubert, subsequent remedial measures, admissibility for injuries in the same or similar circumstances, and the burden of proof.  Administrative law is covered because of the regulations passed by agencies and their effect on private litigation (including preemption, which has a connection to constitutional law).  Civil procedure is also touched upon in the form of statutes of limitations, statutes of repose, and the discovery rule. 

As a whole, the course requires students to connect areas of practice to one another, which I think is extremely beneficial.  That is, of course, how they will function in practice.  The course also reviews a number of concepts they will soon face on the bar, including the specific MBE questions about products liability, often given little to no attention in the basic Torts course due to time constraints.   

December 11, 2023 in Products Liability, Teaching Torts | Permalink | Comments (0)

Monday, October 30, 2023

Geistfeld on Bystanders in Strict Products Liability

Mark Geistfeld has posted to SSRN Situating Bystanders within Strict Products Liability.  The abstract provides:

The largely neglected role of bystanders within products liability is reflected in the extensive scholarship of Professor Aaron Twerski—the rightly celebrated honoree of this symposium. Within Twerski’s vast body of impressive publications, his limited discussions of bystanders align with the widely held assumption that aside from the problems they pose for the consumer expectations test, bystanders do not merit much attention within the context of products liability.

Bystander injuries are much more important than is commonly recognized; one must focus on them to adequately identify the conditions under which consumer-choice doctrines properly limit tort liability. Because the varied rules of strict products liability are designed to protect consumer expectations, recovery is barred when consumers make informed risk-utility choices concerning a product attribute and consequently do not have frustrated expectations about how the product will perform in this regard. The resultant consumerist version of the assumed-risk rule bars recovery for bystanders who do not voluntarily consent to the risk exposure. This limitation of liability is problematic only when the product choice pits the interests of consumers against bystanders, with consumers protecting themselves by selecting products that shift the risk of injury onto bystanders. In cases involving these types of risk-risk tradeoffs, the consumerist orientation of strict products liability is incapable of addressing a bystander’s claim that consumers should not be given the choice in question. According to critics, this inherent limitation of the consumer expectations test merits the wholesale rejection of strict products liability. However, strict products liability complements and does not displace the default rule of negligence liability, which provides the normatively appropriate rule for adjudicating these bystander claims. By clearly demarcating the role of consumer-choice doctrines, bystander injuries help to establish the important boundary between strict products liability and negligence liability.

By contrast, the negligence-based framework of the Restatement (Third) of Torts: Products Liability erases the differences between consumers and bystanders, yielding a normatively confused liability inquiry that erroneously specifies the conditions under which consumer-choice doctrines should limit liability. Rather than providing a reason to reject the consumer expectations test, bystander injuries help show why the consumerist orientation of strict products liability makes it a normatively distinct body of tort law that the Third Restatement mistakenly lumps together with ordinary negligence liability.

October 30, 2023 in Products Liability, Scholarship | Permalink | Comments (0)

Monday, July 17, 2023

Borghetti on the EU Product Liability Directive and Consumer Safety

The 1985 Product Liability Directive (PLD) is currently being revised, with a view to adapting European Union product liability rules to the digital economy and new technologies. The ongoing discussion focuses on technical issues and apparently takes it for granted that the PLD as it stands adequately achieves the policy goals that were initially assigned to it, namely the establishment of a common market and consumer protection. However, a closer analysis shows that harmonising product liability is not needed to create a truly common market and, more importantly, that the PLD is not an effective instrument for consumer protection. A particular cause for concern is that almost no cross-border claims seem to be brought under the Directive, meaning that those injured by defective products are in effect left without a remedy when the producer is not located in the same country as they are. If the new PLD is to be more than mere poster legislation and to contribute effectively to consumer protection, more drastic changes to the current regime are needed than those that are currently being contemplated. The range of potential defendants should be broadened to include suppliers and online marketing platforms as a matter of principle, and the development risk defence as well as the application of a long-stop period in case of bodily injuries should be reconsidered.

July 17, 2023 in Products Liability, Scholarship | Permalink | Comments (0)

Monday, June 19, 2023

Goldberg, Gramling & O'Rourke on Pharmaceutical Preemption

Phil Goldberg, Christopher Gramling & Sarah O'Rourke have published A Prescription for Pharmaceutical Preemption.  The abstract provides:

Determining liability over prescription drugs is a balancing act.  For some people, medicine can save their lives or enhance their well-being.  But, as medicines can also come with side effects, some people will have unavoidable and perhaps serious adverse reactions.  The United States Food and Drug Administration (FDA) works with manufacturers of prescription drugs to manage known public risks.  The FDA assesses the benefit-risk analysis for each drug and must approve the design and warnings before the drug can be made, marketed and sold.  Once on the market, the FDA continues to work with the manufacturers to identify risks and assure the warnings that accompany the drugs continue to provide adequate information about these risks.  Physicians then manage a patient’s personal risk by deciding, often through informed consent by the patient or responsible person, whether a drug’s benefit-risk profile is appropriate for that patient.

June 19, 2023 in Products Liability, Scholarship | Permalink | Comments (0)

Wednesday, May 10, 2023

Lahav on Products and the Crime/Tort Distinction

Alexi Lahav has posted to SSRN Crime and Tort:  Reflections on Legal Categories.  The abstract provides:

This Essay investigates how a particular category of torts—suits for injuries caused by dangerous products—has been seen alternatively as based in contact or criminal law—in addition to, or sometimes instead of, an independent doctrine sounding in tort that arises from a duty not to harm others. This category problem has plagued courts even though, since the 1850s, courts have held that manufacturers had a duty enforceable by private suit not to sell harmful products. The Essay tells the story of regulation of one very dangerous product, milk, in the late nineteenth century as a window into the meaning of how conduct is categorized, with reflections on the significance of putting torts at the periphery rather than the center. The meanings of legal categories map on to conceptions about how society should be governed that continue to be at the heart of many doctrinal and policy debates today.

May 10, 2023 in Products Liability, Scholarship | Permalink | Comments (0)

Saturday, April 22, 2023

CA: Tesla Wins Case Over Autopilot Crash

A California woman injured while using Tesla's Autopilot mode sued Tesla for a design defect in Autopilot and the car's air bags.  Tesla defended its product, stating that the user manual warned the plaintiff about using Autopilot on city streets, which is where the accident occurred.  A jury awarded the plaintiff $0 in damages, found that the air bags were not defective, and found that Tesla did not intentionally fail to disclose facts.  Reuters has the story.  Thanks to Nima Bencohen for the tip.

April 22, 2023 in Current Affairs, Products Liability | Permalink | Comments (0)

Monday, December 19, 2022

Lytton on Private Third-Party Verification of Product Claims

Tim Lytton has posted to SSRN Private Third-Party Verification of Product Claims:  Lessons from Kosher Certification.  The abstract provides:

Food consumers often desire products with attributes that are not discernable from a product’s appearance. Unscrupulous sellers may be tempted to misrepresent the presence of these “credence qualities.” In response, reputable sellers wishing to distinguish truthful product claims from spurious ones can provide verification using third-party certification. Third-party certification marks on product labels attesting to a wide variety of credence qualities are now commonplace. This chapter analyzes the global system of kosher food certification to develop a general model of reliable third-party verification of credence qualities.

December 19, 2022 in Food and Drink, Products Liability, Scholarship | Permalink | Comments (0)

Sunday, October 16, 2022

Seattle Jury Awards $275M Against Monsanto in PCB Trial

Last Thursday, a Seattle jury awarded $275 million to six adults and seven children who alleged they suffered brain damage due to exposure to PCB (polychlorinated biphenyls) manufactured by Monsanto.  This was the fifth case against Monsanto over exposure to PCB at Sky Valley Education Center in Washington.  Juries awarded damages in three of the other cases, but a fourth case ended in a mistrial.  Monsanto plans to appeal the verdict.  Amanda Bronstad at has the story (behind a paywall).  Thanks to Leslie Rowan for the tip.

October 16, 2022 in Current Affairs, Products Liability | Permalink | Comments (0)

Monday, October 3, 2022

Meier on Achieving True Strict Products Liability

Luke Meier has posted to SSRN Achieving True Strict Products Liability (But Not for Plaintiffs with Fault).  The abstract provides:

Under modern tort law, the strict product liability cause of action does not impose true strict liability. This Article suggests that this development can be traced to an analytical difficulty: How to prevent a plaintiff with fault from being able to take advantage of the strict liability standard? Courts have not developed a satisfactory doctrine that both imposes true strict product liability on manufacturers while simultaneously preventing plaintiffs with fault from recovery on this claim. In the absence of a better idea, courts have (mostly) retreated from a true strict product liability standard. This Article offers a solution to this analytical riddle: A simple change to the current comparative fault jury instructions would allow jurisdictions to impose strict product liability on manufacturers while simultaneously preventing plaintiffs with fault from recovering on a strict product liability claim. This is all that is necessary for jurisdictions that are inclined to put the “strict” back in the strict product liability cause of action.

October 3, 2022 in Products Liability, Scholarship | Permalink | Comments (0)

Wednesday, September 28, 2022

JOTWELL Torts: Keating on Geistfeld on Strict Products Liability

Monday, June 20, 2022

Lemann on the Duty to Warn and Automation

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.

June 20, 2022 in Products Liability, Scholarship | Permalink | Comments (0)

Friday, April 22, 2022

Sharkey on Online Platforms as Cheapest Cost Avoiders

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.

April 22, 2022 in Products Liability, Scholarship, Web/Tech | Permalink | Comments (0)

Tuesday, December 7, 2021

Goldberg on 510(k) Evidence

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

December 7, 2021 in Products Liability | Permalink | Comments (0)

Wednesday, October 7, 2020

OH: Amazon is Not a Supplier for Purposes of Products Liability

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.

October 7, 2020 in Current Affairs, Products Liability | Permalink | Comments (0)

Thursday, October 1, 2020

PA: Appeals Court Holds PLCAA Unconstitutional

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)

October 1, 2020 in Current Affairs, Products Liability | Permalink | Comments (0)

Monday, September 14, 2020

Geistfeld: Principles of Products Liability, Third Edition

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.

September 14, 2020 in Books, Products Liability | Permalink | Comments (0)