Products liability : problems and process James A. Henderson, Jr.

Contents
Machine generated contents note: ch. One Product Distributor's Strict Liability for Defect-Caused Harm
A.The Role of Negligence in the Formative Period
1.Negligence from First-Year Torts
2.The Fall of the Privity Rule
3.The Rise of Res Ipsa Loquitur
Escola v. Coca-Cola Bottling Co.
B.The Modern Rule of Strict Liability in Tort
1.Implied Warranty as a Bridge to Strict Liability in the 1950s and Early 1960s
2.Adoption of [&​#x00A7;]402A of the Restatement (Second) of Torts in 1965
3.Codification of the Strict Liability Rule in the Restatement (Third) of Torts in 1998
Problem One
4.Policy Objectives Supporting Strict Liability in Tort
Problem Two
C.Defect as the Linchpin of Strict Products Liability
1.What Makes a Product Defective? (The Conceptual Dimension)
Cronin v. J.B.E. Olson Corp.
2.How Does the Plaintiff Prove Original Defect? (The Practical Dimension)
Speller v. Sears, Roebuck &​ Co.
Problem Three
Contents note continued: D.The Boundaries of Strict Products Liability
1.What Are (and What Are Not) Products?
Winter v. G.P. Putnam's Sons
Problem Four
Postscript on Blood and Other Human Tissue
2.Which Activities Constitute "Selling or Otherwise Distributing" in a Commercial Context?
Magrine v. Krasnica
3.When Is a Product Seller or Other Distributor "In the Business of Selling or Distributing"?
E.Allocating Responsibility Inside and Outside the Commercial Chain of Distribution
1.Allocating Responsibility Between Product Distributors and Other Defendants and Among Members of the Distributive Chain
a.Joint and Several Liability
b.Letting Retailers and Wholesalers Out of the Litigation
Problem Five
c.Contribution Among Members of the Distributive Chain
d.Indemnity Rights Up the Distributive Chain
e.Settlement and Release Between the Plaintiff and Members of the Distributive Chain
Contents note continued: F.Assigning Responsibility Collectively to the Distributive Chain
G.Assigning Responsibility for Product-Related Workplace Accidents
1.Direct Attack by the Employee Against the Employer
Laidlow v. Hariton Machinery Co.
2.Allocating Responsibility Between the Worker Compensation System and the Products Liability System
Kotecki v. Cyclops Welding Corp.
ch. Two Causation
A.Did the Product Actually Cause the Plaintiff's Harm?
1.But-For Causation in General
2.Special Problems of Proof: Reliance on Experts
Rider v. Sandoz Pharmaceutical Corp.
Milward v. Acuity Specialty Products Group, Inc.
Problem Six
B.Did the Defendant Supply the Product?
Problem Seven
C.Did the Defect in the Defendant's Product Contribute to Harming the Plaintiff?
1.The Traditional Burden In Proving Causation
Midwestern V.W. Corp. v. Ringley
Problem Eight
2.Enhanced Injury
3.Loss-of-a-Chance
Problem Nine
Contents note continued: D.Did the Defective Product Proximately Cause the Plaintiff's Harm?
Union Pump Co. v. Allbritton
Problem Ten
Problem Eleven
ch. Three Affirmative Defenses
A.Conduct-Based Defenses: Background Principles
1.Introduction
2.Contributory Negligence
3.Comparative Fault
B.Application of Comparative Fault in Products Liability
1.Can Fault and Defect Be Compared?
a.Manufacturing Defects: Comparing Apples and Oranges
b.Generic Defects: Comparing Fault Under Risk-Utility Balancing
c.Should Fault and Defect Be Compared?
Webb v. Navistar International Transportation Corp.
Social Control of Product-Related Accidents: The Seat Belt Defense and Governmental Control of Drivers' Behavior
d.The Crashworthiness Imbroglio: Should Fault Be Compared with Enhanced Injury
Wolf v. Toyota Motor Corporation
e.Should Plaintiffs Fault Be Compared with Defendant's Breach of Express or Implied Warranty?
Contents note continued: f.No Duty/​Primary Assumption of Risk: Reintroducing Plaintiff's Conduct as a Total Bar
Green v. Allendale Planting Co. &​ the KBH Corp.
Problem Twelve
g.Is Comparative Fault a Defense that Only Defendants Can Raise, or Can Plaintiffs Use It as an Affirmative Gambit?
C.Non-Conduct-Based Defenses
1.Time-Based Defenses
a.Open-Ended Time Bars
b.Fixed-Period Time Bars
Problem Thirteen
Note: Constitutionality of Statutes of Repose
ch. Four Liability for Defective Design
A.Preliminary Puzzlements
1.Do We Need Governmental Review of Product Designs? Why Not Leave Responsibility for Design Safety Entirely to the Market?
2.If We Need Governmental Review of Product Designs, Why Not Rely Exclusively on Nonjudicial Regulatory Agencies? Why Rely on Tort?
3.If We Must Rely on the Tort System, Why Limit Liability to Defect-Caused Harm? Why Not Adopt Broad-Based Enterprise Liability?
Contents note continued: B.When the Fact of the Accident Speaks For Itself-Inferring Defect From Product Malfunction
C.Risk-Utility: The Reasonable Alternative Design Standard For Determining Design Defect
1.Defining the Standard for Determining Design Defect
Smith v. Louisville Ladder Co.
Bourne v. Marty Gilman, Inc.
Problem Fourteen
Problem Fifteen
2.The Time Dimension: Post-Distribution Increases in Knowledge of Risks
3.The Time Dimension: Post-Distribution Improvements in Risk- Avoidance Techniques
a.State of the Art
Boatland of Houston, Inc. v. Bailey
b.Admissibility of Evidence of Subsequent Remedial Measures
4.How Do Negligence and Strict Liability Theories Differ? Should Design Claims Be Submitted to Juries on Both Theories?
Lecy v. Bayliner Marine Corp.
5.Can a Warning Substitute for a Reasonable Alternative Design?
Uniroyal Goodrich Tire Co. v. Martinez
D.Risk-Utility: Product Category Liability
Contents note continued: James A. Henderson, Jr. &​ Aaron D. Twerski, Closing the American Products Liability Frontier: The Rejection of Liability Without Defect
Ellen Wertheimer, The Smoke Gets in Their Eyes: Product Category Liability and Alternative Feasible Designs in the Third Restatement
Parish v. Jumpking, Inc.
Dawson v. Chrysler Corp.
Note: Crashworthiness Litigation
E.The Consumer Expectations Standard For Determining Design Defect
1.Consumer Expectations as a Sword to Impose Liability
Heaton v. Ford Motor Co.
Potter v. Chicago Pneumatic Tool Co.
Problem Sixteen
The Uniform Commercial Code and the Consumer Expectations Test
2.Consumer Expectations as a Shield Against Liability
F.The Two-Prong Standard For Determining Design Defect
Soule v. General Motors Corp.
Mikolajczyk v. Ford Motor Co.
Problem Seventeen
G.Special Duty Problems in Design Litigation
Contents note continued: 1.Whether and to What Extent Should Courts Explicitly Defer to Markets on a Case-by-Case Basis?
Linegar v. Armour of America, Inc.
Scarangella v. Thomas Built Buses, Inc.
2.Whether and to What Extent Should Courts Defer to Safety Statutes or Administrative Regulations?
3.Beyond the Pale: High Profile No-Duty Cases
Hamilton v. Beretta U.S.A. Corp.
In re September 11 Litigation
H.Special Problems of Misuse, Alteration, and Modification
I.Federal Preemption of Design Defect Claims
Mutual Pharmaceutical Co., Inc. v. Bartlett
ch. Five Liability for Failure to Warn
A.The Basic Duty to Warn at Time of Sale
1.The General Rule Governing Failure to Warn
Olson v. Prosoco, Inc.
2.No Duty to Warn of Unknowable Risks
Liability Insurance and Long-Tail, Unknowable Risks
3.No Duty to Warn of Obvious or Generally Known Risks
Jamieson v. Woodward &​ Lothrop
Greene v. A.P. Products, Ltd.
Problem Eighteen
Contents note continued: To Speak or Not To Speak; "Digging Your Own Grave With the Best of Intentions"
Problem Nineteen
4.Informed-Choice Warnings
Problem Twenty
Liriano v. Hobart Corp.
5.Who Must Warn Whom?
B.The Sufficiency of the Defendant's Warning
Moore v. Ford Motor Company
Problem Twenty-One
James A. Henderson, Jr. &​ Aaron D. Twerski, Doctrinal Collapse in Products Liability: The Empty Shell of Failure to Warn
Broussard v. Continental Oil Co.
C.Post-Sale Warnings
Lovick v. Wil-Rich
D.Special Problems With Causation
1.Would the Product User/​Consumer Have Heeded an Adequate Warning?
2.If the User/​Consumer Had Heeded the Warning, Would the Plaintiff's Harm Have Been Reduced/​Avoided?
3.What If the Defendant's Failure to Warn Causes Plaintiff to Suffer Harm from Another Product?
Powell v. Standard Brands Paint Co.
4.Did the Plaintiff Suffer the Sort of Harm that an Adequate Warning Would Have Aimed at Preventing?
Contents note continued: Problem Twenty-Two
E.Federal Preemption of Product Warning Claims
Note: FDA-Approved Warnings
Wyeth v. Levine
ch. Six Express Warranty and Misrepresentation
A.Express Warranty
1.What Is Warranted
Baxter v. Ford Motor Co.
Problem Twenty-Three
2.Basis of the Bargain-The Reliance Controversy
Cipollone v. Liggett Group, Inc.
Note: The Implied Warranty of Fitness For Particular Purpose
B.Misrepresentation
Crocker v. Winthrop Laboratories
C.Other Marketing-Based Approaches To Liability
Problem Twenty-Four
ch. Seven Special Products and Product Markets
A.Component Parts and Raw Materials
Zaza v. Marquess &​ Nell, Inc.
B.Prescription Drugs and Medical Devices
1.Liability Based on Failure to Warn
a.Warning the Health Care Provider
Sterling Drug, Inc. v. Yarrow
b.Warning the Patient Directly
Perez v. Wyeth Laboratories Inc.
2.Liability for Defective Drug Designs
Contents note continued: Brown v. Superior Court (Abbott Laboratories)
3.Pharmacists' Liability for Prescription Products
C.Used Products
1.The Tort Rules Governing Liability
Crandell v. Larkin and Jones Appliance Co.
Note: Tort and Contract-Something Old, Something New
2.The Role of Disclaimers in Determining Liability for Used Products
Problem Twenty-Five
D.Food, Nonprescription Drugs, and Cosmetics
1.Food Products
2.Nonprescription Drugs and Cosmetics
ch. Eight Special Elements of the Products Liability Plaintiff's Recovery
A.Recovery For Pure Emotional Upset
Kennedy v. McKesson Co.
B.Recovery For Pure Economic Loss
East River Steamship Corp. v. Transamerica Delaval, Inc.
Problem Twenty-Six
Charles W. Wolfram, Modern Legal Ethics
C.Recovery in Toxic Torts Litigation: Special Problems
1.Increased Risk of Future Injury
Mauro v. Raymark Industries, Inc.
2.Recovery for Emotional Upset
Contents note continued: Metro-North Commuter R.R. Co. v. Buckley
3.Medical Monitoring
Caronia v. Philip Morris USA, Inc.
D.Recovery of Punitive Damages
1.Legal Standards and Limits Under State Law
2.Federal Constitutional Control of Punitive Damages
State Farm Mutual Automobile Insurance Co. v. Campbell
Philip Morris USA v. Williams
ch. Nine Products Liability in a Global Context
A.Products Liability Law Beyond the United States
Mathias Reimann, Liability for Defective Products at the Beginning of the Twenty-First Century: Emergence of a Worldwide Standard?
J.Mark, Ramseyer, Liability for Defective Products: Comparative Hypotheses and Evidence from Japan
B.Policy Challenges Posed By a Globally Integrated Product Marketplace
1.The Impact of Products Liability Law on the Competiveness of Firms
2.Effects of Products Liability Law on Product Innovation
3.Does the Global Marketplace Need a Global Regulator?
Problem Twenty-Seven
Contents note continued: Problem Twenty-Eight.