Law Commons^™

Lending A Hand: The Use Of The Mississippi Products Liability Act And Mississippi's Blood Shield Statute In Palermo V. Lifelink Found., Inc., Taylor Price

Mississippi College Law Review

The experience of undergoing a surgical procedure is one of the most vulnerable positions an average individual finds themselves in during his or her lifetime. The overall risk associated with this process is even greater when the surgery involves the removal or transfer of one or more of the body's organs or tissues. The principal event that concerned Palermo v. LifeLink Found., Inc. was a botched surgical operation featuring a human tissue implant performed in March 2005 on Richard Palermo. The tissue implant surgically inserted into Palermo's knee became bacterially infected shortly after the operation and required further injury, causing …

A Revisionist History Of Products Liability, Alexandra D. Lahav

Michigan Law Review

Increasingly courts, including the Supreme Court, rely on ossified versions of the common law to decide cases. This Article demonstrates the risks of this use of the common law. The main contribution of the Article is to demonstrate that the traditional narrative about early products law—that manufacturers were not liable for injuries caused by their products because the doctrine of privity granted producers immunity from suit by the ultimate consumers of their goods—is incorrect. Instead, the doctrinal rule was negligence liability for producers of injurious goods across the United States in the nineteenth century. Courts routinely ignored or rejected privity …

Differentiating Strict Products Liability’S Cost-Benefit Analysis From Negligence, Paul F. Rothstein, Ronald J. Coleman

Georgetown Law Faculty Publications and Other Works

Dangerous products may give rise to colossal liability for commercial actors. Indeed, in 2021, the U.S. Supreme Court denied certiorari in Johnson & Johnson v. Ingham, permitting a more than two billion dollar products liability damages award to stand. In his dissenting opinion in another recent products liability case, Air and Liquid Systems Corp. v. DeVries, Justice Gorsuch declared that “[t]ort law is supposed to be about aligning liability with responsibility.” However, in the products liability context, there have been ongoing debates concerning how best to set legal rules and standards on tort liability. Are general principles of …

The Unidentified Wrongdoer, Ronen Perry

Georgia Law Review

This Article addresses the untheorized and under-researched problem of strong unidentifiability in tort law, namely the victim’s occasional inability to identify the direct wrongdoer, or even an ascertainable group to which the wrongdoer belongs, and bring an action against him or her. This Article offers a systematic analysis and a general theoretical framework for the appraisal of possible solutions to strong unidentifiability problems, which undermine liability and frustrate its goals.

Part I presents the main legal models developed and used to overcome these problems in different contexts and various legal systems: adherence to direct liability with creative procedural identification tools, …

The New "Web-Stream" Of Commerce: Amazon And The Necessity Of Strict Products Liability For Online Marketplaces, Margaret E. Dillaway

Vanderbilt Law Review

Technology company Amazon has actively transformed into an e-commerce giant over the last two decades. Once a simple online bookstore, Amazon now boasts an ever-expanding identity as global cloud computing provider, major player in artificial intelligence, brick-and-mortar grocery store, and producer of original video content. At its roots, the company remains focused on e-commerce—its multibillion-dollar online marketplace hosts a massive digital space for commerce worldwide where customers can order “anything, with a capital A.”

Amazon derives many of its sales from third-party vendors who list products on the company’s website, Amazon.com. In this broadening chain of distribution for online retail, …

Choice Of Law And The Preponderantly Multistate Rule: The Example Of Successor Corporation Products Liability, Diana Sclar

Dickinson Law Review (2017-Present)

Most state rules of substantive law, whether legislative or judicial, ordinarily adjust rights and obligations among local parties with respect to local events. Conventional choice of law methodologies for adjudicating disputes with multistate connections all start from an explicit or implicit assumption of a choice between such locally oriented substantive rules. This article reveals, for the first time, that some state rules of substantive law ordinarily adjust rights and obligations with respect to parties and events connected to more than one state and only occasionally apply to wholly local matters. For these rules I use the term “nominally domestic rules …

From Liability Shields To Democratic Theory: What We Need From Tort Theory Now, Heidi Li Feldman

Georgetown Law Faculty Publications and Other Works

Among possible legal responses to a pandemic, quashing tort liability might seem startling. Common sense indicates that a deadly and debilitating disease would call for possible tort liability, to enable recovery for losses by those subjected to the disease because of others’ carelessness while also discouraging careless conduct that could lead to preventable cases illness in the first place. Yet, when faced with SARS-CoV-2 and COVID-19, the life-threatening disease caused by the virus, the first response of many American lawmakers was to enact, or attempt to enact, COVID-19 “liability shield” statutes. These laws introduced doctrine to eliminate or narrow grounds …

The Opioid Litigation: The Fda Is Mia, Catherine M. Sharkey

Dickinson Law Review (2017-Present)

It is readily agreed that federal preemption of state tort law alters the balance between federal and state power. Federal preemption is a high-profile defense in almost all modern products liability cases. It is thus surprising to see how little attention has been given to federal preemption by courts and commentators in the opioid litigation. Opioid litigation provides a lens through which I explore the role of state and federal courts and the Food and Drug Administration (FDA) in striking the right balance of power. My purpose here is not to resolve the divide among the few courts that have …

The Specific Consumer Expectations Test For Product Defects, W. Kip Viscusi, Clayton J. Masterman

Vanderbilt Law School Faculty Publications

The consumer expectations test in products liability law holds firms liable for producing goods that are more dangerous than the reasonable consumer would anticipate. But judicial experience in the majority of states that have utilized the consumer expectations test demonstrates that it is ambiguous and impossible to apply predictably. The test is ill-suited for regulating complex products or markets with heterogeneous consumers; moreover, the test requires courts to expend significant resources to identify consumers' ex ante beliefs about product risks, even when consumers lacked tangible beliefs about products at the time of purchase. The other major test that courts apply …

A Scholarly Life In Vistas: Marshall Shapo's Products Liability, Mary J. Davis

Law Faculty Scholarly Articles

To read and reread Professor Marshall Shapo’s products liability scholarship is to learn the important lesson of how to build a body of work that continually sees the same landscape from fresh vistas. Like watching the same landscape from different angles, during different seasons, and over several years, Professor Shapo’s vistas provide us with a remarkably vivid view of the products liability landscape over the past fifty years and beyond. In doing so, he has constructed a vision of the richness and promise of products liability law while continually reminding us to be aware of the vista from which we …

A Conceptual And Comparative Analysis Of The Obligations Of Third-Party Certifiers, Jan De Bruyne

Ohio Northern University Law Review

No abstract provided.

Let’S Be Reasonable: The Consumer Expectations Test Is Simply Not Viable To Determine Design Defect For Complex Autonomous Vehicle Technology, Emily Frascaroli, John Isaac Southerland, Elizabeth Davis, Woods Parker

Journal of Law and Mobility

Although highly automated vehicles (“HAVs”) have potential to reduce deaths and injuries from traffic crashes, product liability litigation for design defects in vehicles incorporating autonomous technology is inevitable. During the early stages of implementation, courts and juries will be forced to grapple with the application of traditional product liability principles to a never before experienced category of highly technical products. Recent decisions limiting the use of the consumer expectations test in cases involving complex products prompted the authors to examine more closely the history behind and the future viability of the consumer expectations test in HAV litigation.

Nudges And Norms In Multidistrict Litigation: A Response To Engstrom, Elizabeth Chamblee Burch

Scholarly Works

On paper, the Federal Rules of Civil Procedure apply equally to billion-dollar opioid allegations and small-stakes claims for $75,000.01. In practice, however, judges and attorneys in high-stakes multidistrict proceedings like those over opioids have invented a smattering of procedures that you’ll never find indexed in the Federal Rules: plaintiff fact sheets, short form complaints, science days, bellwether trials, census orders, inactive dockets, and Lone Pine orders to name but a few. In a world where settlement is the prevailing currency, norms take root. But as norms blossom, the stabilizing features of the federal rules—balance, predictability, and structural protections—can wither. As …

The Deterrence Case For Comprehensive Automaker Enterprise Liability, Kyle D. Logue

Journal of Law and Mobility

This Article lays out the potential (at this point purely theoretical) deterrence benefits of replacing our current auto tort regime (including auto products liability law, driver-based negligence claims, and auto no-fault regimes) with a single, comprehensive automaker enterprise liability system. This new regime would apply not only to Level 5 vehicles, but to all automobiles made and sold to be driven on public roads. Because such a system would make automakers unconditionally responsible for the economic losses resulting from any crashes of their vehicles, it would in effect make automakers into auto insurers as well, although such a change will …

Duty, Foreseeability, And Montemayor V. Sebright Products, Inc., Mike Steenson

Mitchell Hamline Law Journal of Public Policy and Practice

No abstract provided.

Products Liability And The Internet Of (Insecure) Things: Should Manufacturers Be Liable For Damage Caused By Hacked Devices?, Alan Butler

University of Michigan Journal of Law Reform

While the application of products liability to insecure software is a frequently-discussed concept in academic literature, many commentators have been skeptical of the viability of such claims for several reasons. First, the economic loss doctrine bars recovery for productivity loss, business disruption, and other common damages caused by software defects. Second, the application of design defects principles to software is difficult given the complexity of the devices and recent tort reform trends that have limited liability. Third, the intervening cause of damage from insecure software is typically a criminal or tortious act by a third party, so principles of causation …

Gun Control Through Tort Law, Richard C. Ausness

Law Faculty Scholarly Articles

I have been asked to respond to an article by Professor Andrew Jay McClurg that recently appeared in the Florida Law Review. In this article, the author, a longtime advocate of firearms regulation, argues that owners and commercial sellers of firearms who negligently fail to secure them against theft should be held liable when persons are killed or injured by firearms used in the commission of a crime.

In the past, believing that existing federal and state laws were inadequate to halt the spread of gun-related deaths and injuries, proponents of stricter gun control measures proposed a number of tort …

Preface To The Gateway Thread, Deborah Post

Touro Law Review

No abstract provided.

Where's The Sense In Hill V. Gateway 2000?: Reflections On The Visible Hand Of Norm Creation, Shubha Ghosh

Touro Law Review

No abstract provided.

Cognition And Common Sense In Contract Law, Beverly Horsburgh, Andrew Cappel

Touro Law Review

No abstract provided.

Common Sense And Contract Law: Fear Of A Normative Planet?, Thomas Joo

Touro Law Review

No abstract provided.

Driverless Cars And The Much Delayed Tort Law Revolution, Andrzej Rapaczynski

Faculty Scholarship

The most striking development in the American tort law of the last century was the quick rise and fall of strict manufacturers’ liability for the huge social losses associated with the use of industrial products. The most important factor in this process has been the inability of the courts and academic commentators to develop a workable theory of design defects, resulting in a wholesale return of negligence as the basis of products liability jurisprudence. This article explains the reasons for this failure and argues that the development of digital technology, and the advent of self-driving cars in particular, is likely …

The Products Liability Crisis: Modest Proposals For Legislative Reform, William P. Bivins Jr.

Akron Law Review

This article will attempt to identify some of the sources of the problems which are adversely affecting the system of products liability litigation and will offer proposals for reform within the framework of the law of products liability.

Products Liability: Toward Balancing The Scales, Donald M. Jenkins

Akron Law Review

The evolution and application of products liability law continues to be one of the most dynamic developments in the law. This issue of the Akron Law Review is dedicated to presenting and exploring recent significant developments.

What Types Of Losses Are Recoverable Under Arkansas' Products Liability Law, Rodney A. Smolla

Rod Smolla

Not available.

Legal And Social Implications Of The 3d Printing Revolution, Alexander J. Mendoza

CMC Senior Theses

ABSTRACT

Emerging 3D printing technologies bring with it the potential to transform everyday consumers into manufacturers of every product imaginable. However, this impending wave of newfound technological capability is bound to crash against our present conventional system of laws and regulations. In this paper, the strengths and weaknesses of our current intellectual property framework are examined, and its ability to tackle the future 3D printing market is assessed. Particular attention is paid to our modern formation of copyright and patent law, including an analysis of the Digital Millennium Copyright Act (DMCA), the Repair-Reconstruction Doctrine and other substantial legal protocol. The …

“Danger Is My Business”: The Right To Manufacture Unsafe Products, Richard C. Ausness

Law Faculty Scholarly Articles

While no one would dispute that safety is a desirable objective, it may not always be an absolute priority. Rather, in some cases, other societal interests such as personal autonomy, consumer choice, product cost, and performance may trump legitimate safety goals. This is reflected in some of the doctrines and defenses that have evolved to protect the producers of unsafe products against tort liability. Some of these doctrines, such as those determining liability for the producers of optional safety equipment, inherently dangerous products, products with obvious hazards, and prescription drugs and medical devices, are part of the law of products …

Not Just For Products Liability: Applying The Economic Loss Rule Beyond Its Origins, Danielle Sawaya

Fordham Law Review

Most litigants, if given the chance, prefer to assert tort theories to recover their economic losses, rather than rely on the remedies provided under contract law. This is primarily because plaintiffs have the potential to recover more damages under tort law than contract law. However, most courts have adopted a doctrine known as the economic loss rule to bar plaintiffs from asserting certain tort theories to recover for their economic loss. Although the economic loss rule may seem like an easy way to maintain the boundary between tort law and contract law, confusion abounds when courts attempt to determine the …

The Role Of Litigation In The Fight Against Prescription Drug Abuse, Richard C. Ausness

Law Faculty Scholarly Articles

Prescription drug abuse problems have prompted a number of responses by both drug users (and abusers) and by various federal and state government agencies.

Part I of this Article examines the impressive array of liability theories that individual litigants have relied upon in their lawsuits against Purdue. These theories include: negligence; strict products liability, including design defect and inadequate warning claims; breach of the implied warranty of merchantability; violation of state consumer protection statutes; negligent marketing; fraudulent misrepresentation; civil conspiracy; and "malicious conduct." Purdue, the company that developed OxyContin, has pursued an aggressive "no settlement" policy and has chosen to …

Strict Products Liability At 50: Four Histories, Kyle Graham

Marquette Law Review

This Article offers four different perspectives on the strict products- liability “revolution” of a half-century ago. One of these narratives relates the predominant assessment of how this movement coalesced and spread across the states. The three alternative histories introduced by this Article view the shift toward strict products liability through populist, practical, and contingent lenses, respectively. The first of these narratives considers the contributions that plaintiffs and their counsel made toward this change in the law. The second focuses upon how a formerly common, but now moribund, type of products-liability lawsuit framed the argument for strict liability as a superior …