Law Commons^™

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 …

The Law And Economics Of Products Liability, Keith N. Hylton

Faculty Scholarship

This paper presents a largely positive analysis of products liability law, in the sense that it aims to predict the incentive effects and the welfare consequences of the law, with close regard to its specific legal tests and the real-world constraints that impinge on these tests. The other major part of this paper is a normative assessment of the parts of products liability law that should be reformed. In contrast with the prevailing law and economics literature suggesting that products liability law reduces social welfare, I argue that the law probably improves social welfare, though it is in need of …

"Fasten Your Seat Belt, Orville!": Exploring The Relationship Between State-Of-The-Art, Technological And Commercial Feasibility, And The Restatement'S Reasonable Alternative Design Requirement, Richard C. Ausness

Law Faculty Scholarly Articles

This Article begins by examining some of the case law involving the state-of-the-art concept and finds that it is principally concerned with technological feasibility. It also concludes that most cases do not treat state-of-the-art as conclusive on the design defect issue; rather, they merely consider it one of several factors that the fact finder may take into account when deciding whether a product's design is defective or not. Part II is concerned with technological development. This part examines two basic patterns of technological development and provides a number of historical examples for each. The first is a linear pattern, exemplified …

Promoting, Prescribing, And Pushing Pills: Understanding The Lessons Of Antipsychotic Drug Litigation, Douglas Mossman Md, Jill L. Steinberg

Faculty Articles and Other Publications

Ineffectiveness of prescription drugs, hidden drug hazards, and advertising violations have led to several drug recalls and numerous lawsuits against pharmaceutical companies in recent years. These suits have involved several varieties of medications, but psychoactive medications have figured especially prominently. A recent $1.4 billion settlement by Eli Lilly & Company related to improper promotion of its top-selling drug olanzapine included the largest individual corporate criminal fine in U.S. history.

Improper promotion is far from the sole reason why olanzapine and other “second-generation” antipsychotic (SGA) drugs have become so successful. Rather, the widespread adoption of SGAs represents a collective judgment error …

Preemption And Products Liability: A Positive Theory, Keith N. Hylton

Faculty Scholarship

In a large number of products liability lawsuits, sellers assert that plaintiffs' claims should be rejected because their products fall under some federal regulatory regime, and that the regulatory statute takes precedence over or preempts state tort law. This paper is an attempt to set out a positive theory of the doctrine on preemption of products liability claims. The federal case law is largely consistent with an approach that seeks to minimize the costs of erroneous decisions to preempt tort lawsuits. In particular, two factors explain many of the outcomes of the preemption cases in federal courts: agency independence and …

Product Design Liability In Orgeon And The New Restatement, James A. Henderson Jr., Aaron Twerski

Cornell Law Faculty Publications

No abstract provided.

Arriving At Reasonable Alternative Design: The Reporters' Travelogue, James A. Henderson Jr., Aaron Twerski

Cornell Law Faculty Publications

Substantial commentary and controversy have been generated by the requirement in the new Restatement (Third) of Torts: Products Liability that plaintiffs in most (but not all) cases involving claims of defective product design show that a reasonable alternative design was available and that failure to adopt the alternative rendered the defendant's design not reasonably safe. Henderson and Twerski explain the origins of that requirement and show that it is not only the majority position but also comports with widely shared views regarding the proper objectives of our liability system. Although consumer expectations cannot serve as a workable, stand-alone test for …

Limits On Preemption And Punitive Damages: Can They Be Related?, Peter Zablotsky

Scholarly Works

No abstract provided.

Comments To The Reporters And Selected Members Of The Consultative Group, Restatement Of Torts (Third): Products Liability, Howard C. Klemme

Publications

No abstract provided.

Revising Section 402a: The Limits Of Tort As Social Insurance, James A. Henderson Jr.

Cornell Law Faculty Publications

No abstract provided.

Design Defect Liability: In Search Of A Standard Of Responsibility, Mary J. Davis

Law Faculty Scholarly Articles

Responsibility for the consequences of our own actions and occasionally for the actions of others seems to have been largely forgotten as a foundation for governing conduct. This Article advocates re-emphasizing responsibility in one important area, that of manufacturer liability for product design. To that end, the author proposes the highest standard of conduct by which to judge product manufacturers' design decisions. The standard proposed in this Article is higher than merely reasonable, prudent conduct and is not the allegedly "strict" liability frequently imposed. The standard this Article proposes reflects an emphasis on responsible conduct in light of the special …

The Appropriate Role Of Plaintiff Misuse In Products Liability Causes Of Action, Peter Zablotsky

Scholarly Works

No abstract provided.

A Proposed Revision Of Section 402a Of The Restatement (Second) Of Torts, James A. Henderson Jr., Aaron Twerski

Cornell Law Faculty Publications

No abstract provided.

Stargazing: The Future Of American Products Liability Law, James A. Henderson Jr., Aaron Twerski

Cornell Law Faculty Publications

No abstract provided.

Why Creative Judging Won't Save The Products Liability System, James A. Henderson Jr.

Cornell Law Faculty Publications

No abstract provided.

Design Defect Litigation Revisited, James A. Henderson Jr.

Cornell Law Faculty Publications

No abstract provided.