TortsProf Blog

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.

PA: Suit Filed Over Failure to Properly Restrain 9-Year-Old on Roller Coaster

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.

Is Amazon a Seller for Purposes of Products Liability? Issue Certified to PA Supreme Court

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?

We shall retain jurisdiction over the appeal pending resolution of this certification.

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.

J&J Loses Daubert Motion in Talc Powder Cases

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.

Bernard Chazen, the Attorney Who Won Henningsen v. Bloomfield Motors, Passes Away at 96

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:

BERNARD CHAZEN
 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”.

Tort Immunity for COVID-19 Countermeasures

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.

Bell on the Model Uniform Products Liability Act

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.

Bellwether Opioid Trial Settles; Talks Resume on $48B Larger Resolution

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. 

Busch on a European Perspective on Oberdorf

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.

Janger & Twerski on Amazon as a Seller

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.

$8 Billion Punies Verdict Against J&J

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.

PA: Wawa Settles Claim for Defective Coffee Cup

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.

3d Circuit Agrees to En Banc Review of Case Holding Amazon Is a Seller of Third-Party Products

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.

OK: J&J Liable for Opioid Abuse; Must Pay $572M

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.

Gentry & McMichael on Tort Incentives

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.

6th Cir.: Amazon Can Be a "Seller" of Products of Third Party

A week after a similar holding in the Third Circuit, the Sixth Circuit ruled that, under Tennessee law, Amazon can be a "seller" of products owned by a third party and advertised on its website.  The case involved a hoverboard fire that destroyed the plaintiffs' home.  The court further held plaintiffs had not actually proven Amazon was a seller on these specific facts, but sent the case back to the district court on the theory that Amazon assumed a duty to warn when it sent an email about the dangers of the product.  The district court must decide if Amazon's warning was negligent.  ABC News has the story.

PA: J&J Subsidiary Loses Motion to Move Mesh Mass Tort Cases from Philly

Citing media coverage, Ethicon, a subsidiary of Johnson & Johnson, filed a motion to move consolidated pelvic mesh cases outside of Philadelphia and the five counties surrounding it.  In the past few months, several large verdicts have been returned against Ethicon in Philly.  Court of Common Pleas Judge Arnold New denied the motion in a one-page order that did not provide reasoning.  The Legal Intelligencer has the story.

Faure on an Economic Analysis of Product Liability

Michael Faure has posted to SSRN An Economic Analysis of Product Liability.  The abstract provides:

This chapter in a book on European product liability provides a summary of the economic approach to product liability. The economic theory of product liability based on the Coase Theorem is explained. Next, product liability when damage is suffered by third parties is analyzed. Specific attention is paid to the EU Product Liability Directive and to more recent literature.

USSC Clarifies "Clear Evidence" for Preemption

Yesterday, in Merck Sharpe & Dohme v. Albrecht, the Court held that judges, not juries, should decide whether FDA actions preempt state tort suit alleging failure to warn.  The opinion explained that Wyeth v. Levine's "clear evidence" standard contemplates an irreconcilable conflict between federal and state law, rather than a heightened standard of evidentiary proof:

This point of procedural clarity has enormous strategic value for products-liability defendants because it confirms that courts may conclusively rule on the pre-emption defense as early as a pre-answer motion, though the factual complexity of FDA communications likely will push the issue in many drug-pre-emption cases to summary judgment. 

Elizabeth McCuskey at SCOTUSblog has details.

Davis on Pharmaceutical Products Liability

Mary Davis has posted to SSRN Time For a Fresh Look at Strict Liability for Pharmaceuticals.  The abstract provides:

Over the ensuing 50 years from the promulgation of § 402A, products liability in general has seen a retrenchment from strict liability. The Restatement (Third) of Torts: Products Liability openly adopted negligence principles for design and warning claims, and created an entirely new provision to protect pharmaceutical manufacturers even more robust than 402A's comment k. Regarding pharmaceutical liability, the trend away from any liability at all has been remarkable. In the face of this legal history, and in spite of it, this Article proposes taking a fresh look at strict liability for pharmaceutical injuries. What has changed since the adoption of the Products Liability Restatement, which endorsed a virtual immunity from liability for pharmaceuticals? Such a suggestion is likely to be met with cries of “absolute liability” and concern for a chilling effect on innovation for much needed therapeutic treatments. There are three primary reasons this Article proposes a reassessment for strict tort liability in this context. First, the expansive federal preemption doctrine that the United States Supreme Court has fashioned in the last decade defeats almost all state tort liability for pharmaceuticals, particularly for generic pharmaceuticals which comprise over 85 percent of the prescriptions in this country. Second, both the pre-marketing approval process and the post-marketing risk assessment regulatory structures fundamentally cannot adequately identify, communicate, and reduce adverse drug events and, consequently, those events are increasing and likely to continue to do so. Third, the structure of pharmaceutical marketing, increasingly unregulated, has influenced prescribing practices in ways that compound the likelihood and severity of adverse drug events.

These trends in pharmaceutical marketing practices, coupled with the systemic limitations on information-gathering and response in the regulatory system, has created a demand for pharmaceuticals that increases the likelihood of adverse drug events with no meaningful mechanism to identify and reduce the risks presented. While the legal landscape has become barren to the use of tort liability to compensate for the inevitable risk of adverse drug effects, the medical care landscape has become more fertile for those side effects to occur. The convergence of these trends supports a reevaluation of the use of strict, non-fault liability on producers of pharmaceuticals for the harms their products cause.