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Full-Text Articles in Law
A Scholarly Life In Vistas: Marshall Shapo's Products Liability, Mary J. Davis
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 …
Gun Control Through Tort Law, Richard C. Ausness
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 …
“Danger Is My Business”: The Right To Manufacture Unsafe Products, Richard C. Ausness
“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 …
The Role Of Litigation In The Fight Against Prescription Drug Abuse, Richard C. Ausness
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 …
"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 …
Risky Business: Liability Of Product Sellers Who Offer Safety Devices As Optional Equipment, Richard C. Ausness
Risky Business: Liability Of Product Sellers Who Offer Safety Devices As Optional Equipment, Richard C. Ausness
Law Faculty Scholarly Articles
This Article examines the question of whether (or when) product sellers should be allowed to offer optional safety equipment without fear of being held strictly liable for selling a defectively designed product. Part II of this Article examines several approaches to risk-bearing. At one end of the spectrum, the principle of personal autonomy dictates that consumers should decide how much risk they wish to accept. On the other hand, products liability law assumes that if consumers are allowed to subject themselves to greater risk, producers will be quick to take advantage of their inability to make rational decisions about what …
The Case Against Preemption: Vaccines & Uncertainty, Mary J. Davis
The Case Against Preemption: Vaccines & Uncertainty, Mary J. Davis
Law Faculty Scholarly Articles
This article begins with a brief recap of the state of current preemption doctrine and how it governs the interaction of federal regulation of product manufacturers and state tort actions related to the actions of those manufacturers. Second, the article provides observations on how that doctrine might apply to vaccine injury litigation. Bruesewitz v. Wyeth, Inc. involves the preemptive scope of the Vaccine Act and the unique compensation system Congress created to respond to vaccine injuries. Bruesewitz was decided on February 22, 2011, and held that design defect claims are expressly preempted by the Vaccine Act. This article endeavors …
On Restating Products Liability Preemption, Mary J. Davis
On Restating Products Liability Preemption, Mary J. Davis
Law Faculty Scholarly Articles
This Article provides a brief explanation of the state of preemption doctrine and explains how the Court altered, quite dramatically, its treatment of preemption of common law tort actions in the last two decades. The Court's almost exclusive focus on the interpretation of express preemption provisions, which never specifically address common law tort claims one way or the other, turned "traditional" preemption analysis of common law tort claims on its head. The Court then, almost as suddenly, signaled a retreat from the emphasis on express preemption analysis and returned, awkwardly, to implied preemption doctrine. The Court has only recently begun …
Product Liability's Parallel Universe: Fault-Based Liability Theories And Modern Products Liability Law, Richard C. Ausness
Product Liability's Parallel Universe: Fault-Based Liability Theories And Modern Products Liability Law, Richard C. Ausness
Law Faculty Scholarly Articles
Strict liability has always been the heart and soul of American products liability law. As early as 1963, Justice Roger Traynor in Greenman v. Yuba Power Products, Inc. stated that "[a] manufacturer is strictly liable in tort when an article he places on the market, knowing that it will be used without inspection for defects, proves to have a defect that causes injury to a human being." Shortly thereafter, the drafters of section 402A of the Restatement (Second) of Torts made it clear that the exercise of due care would not shield sellers from liability when their products caused injury. …
The Pending Farmers' Market Fiasco: Small-Time Farmers, Part-Time Shoppers, And A Big-Time Problem, Brandon Baird
The Pending Farmers' Market Fiasco: Small-Time Farmers, Part-Time Shoppers, And A Big-Time Problem, Brandon Baird
Kentucky Journal of Equine, Agriculture, & Natural Resources Law
No abstract provided.
“There's Danger Here, Cherie!”: Liability For The Promotion And Marketing Of Drugs And Medical Devices For Off-Label Uses, Richard C. Ausness
“There's Danger Here, Cherie!”: Liability For The Promotion And Marketing Of Drugs And Medical Devices For Off-Label Uses, Richard C. Ausness
Law Faculty Scholarly Articles
Physicians often prescribe prescription drugs and other medications for uses that are not approved by the Food and Drug Administration ("FDA"), and such "off label" prescription is widely accepted within the medical community as a legitimate form of treatment. However, the federal government discourages off-label prescription and use in various ways. For example, the FDA restricts the dissemination of information by drug companies about potential off-label therapies. In addition, federally funded health insurance programs such as Medicaid do not reimburse health care providers for off-label uses. Because drug companies make large profits from off-label prescriptions, they are often tempted to …
The Battle Over Implied Preemption: Products Liability And The Fda, Mary J. Davis
The Battle Over Implied Preemption: Products Liability And The Fda, Mary J. Davis
Law Faculty Scholarly Articles
A mere five years ago, the Food and Drug Administration (the "FDA") began, for the first time in its 100-year history, to take the position that its prescription drug labeling regulations defeated the ability of injured plaintiffs to pursue common law tort claims based on the adequacy of the labeling. This position, radical to many and rational to others, places federal preemption of prescription drug labeling actions directly in the center of the debate over the proper roles of federal regulation and state tort laws in promoting product safety. The U.S. Supreme Court has contributed to this debate with several …
The Welding Fume Case And The Preemptive Effect Of Osha’S Hazcom Standard On Common Law Failure-To-Warn Claims, Richard C. Ausness
The Welding Fume Case And The Preemptive Effect Of Osha’S Hazcom Standard On Common Law Failure-To-Warn Claims, Richard C. Ausness
Law Faculty Scholarly Articles
The Occupational Health and Safety Act (the OSH Act) affects more than ninety million workers in the United States. The OSH Act is administered by the Occupational Health and Safety Administration (OSHA), which promulgates health and safety standards for the workplace. Although OSHA standards do not regulate product manufacturers directly, they may affect liability when manufacturers are sued by workers who are injured by allegedly defective products provided by their employers. With increasing frequency, manufacturers are contending that the OSH Act or OSHA standards preempt these claims. In particular, manufacturers argue that the Hazard Communication Standard (HazCom Standard) should preempt …
Proof Of Product Defect, David G. Owen
Inherent Product Hazards, David G. Owen
On Preemption, Congressional Intent, And Conflict Of Laws, Mary J. Davis
On Preemption, Congressional Intent, And Conflict Of Laws, Mary J. Davis
Law Faculty Scholarly Articles
Conflicts scholars and jurists for centuries have sought an answer to the question of "what law controls?" by balancing a number of considerations. Chief among those considerations are the legitimate political and policy concerns of conflicting sovereigns. This article analyzes the Supreme Court's recent preemption decisions with an understanding of these theories and their underlying considerations. That analysis reveals that the Court's recent preemption decisions incorporate two modem conflict of laws theories: Governmental Interest Analysis and its corollary, Comparative Impairment. Each of these theories builds on the notion that a choice of law analysis should be motivated by selecting the …
Unmasking The Presumption In Favor Of Preemption, Mary J. Davis
Unmasking The Presumption In Favor Of Preemption, Mary J. Davis
Law Faculty Scholarly Articles
It is inescapable: there is a presumption in favor of preemption. Historically, the Supreme Court has said differently-that, rather, there is a presumption against preemption. There is no such presumption any longer, if, indeed, there ever really was one. Preemption doctrine has been exceedingly puzzling in the last decade, but when one recognizes that the Court's doctrine not only favors preemption, but presumes it, preemption doctrine is not a puzzle at all.
This Article argues that the Supreme Court's recent preemption decisions compel the conclusion that the Court's preemption analysis has, in effect, created a presumption in favor of preemption, …
Will More Aggressive Marketing Practices Lead To Greater Tort Liability For Prescription Drug Manufacturers?, Richard C. Ausness
Will More Aggressive Marketing Practices Lead To Greater Tort Liability For Prescription Drug Manufacturers?, Richard C. Ausness
Law Faculty Scholarly Articles
Manufacturers of prescription drugs have begun to market their products more aggressively than they did in the past. These marketing efforts are not confined to health care professionals alone; pharmaceutical companies now engage in extensive direct-to-consumer advertising on radio and television, in the print media, and even on the Internet. While these promotional efforts no doubt increase sales, they may also lead to greater tort liability for drug-related injuries. The most likely theories of liability are failure to warn and negligent marketing. Liability for inadequate warnings will almost certainly increase if courts abandon the learned intermediary rule and require drug …
Preemption Analysis After Geier V. American Honda Motor Co., Susan D. Hall
Preemption Analysis After Geier V. American Honda Motor Co., Susan D. Hall
Kentucky Law Journal
No abstract provided.
The Application Of Product Liability Principles To Publishers Of Violent Or Sexually Explicit Material, Richard C. Ausness
The Application Of Product Liability Principles To Publishers Of Violent Or Sexually Explicit Material, Richard C. Ausness
Law Faculty Scholarly Articles
There have been a number of tragic incidents during the past few years in which mentally unstable teenagers have carried guns into school and shot teachers and fellow students. These schoolyard killings have generated an intense debate about the problem of violence in our society. Some social commentators have attributed teenage violence to the widespread availability of firearms, while others blame parental neglect, lack of discipline in the schools, or the declining influence of religion and morality in contemporary culture. However, another source of concern is the popular media, which stands accused of purveying sex and violence on a massive …
“Waive” Goodbye To Tort Liability: A Proposal To Remove Paternalism From Product Sales Transactions, Richard C. Ausness
“Waive” Goodbye To Tort Liability: A Proposal To Remove Paternalism From Product Sales Transactions, Richard C. Ausness
Law Faculty Scholarly Articles
This Article argues that waivers of tort liability should be permitted in connection with product sales. Currently, sellers cannot limit their liability under tort law for personal injuries caused by defective products even though such waivers are allowed, albeit reluctantly, under principles of negligence and warranty law. Existing principles of products liability law should be modified, either by legislation or by court action, to allow at least limited use of these waivers.
When Warnings Alone Won’T Do: A Reply To Professor Phillips, Richard C. Ausness
When Warnings Alone Won’T Do: A Reply To Professor Phillips, Richard C. Ausness
Law Faculty Scholarly Articles
In his paper, Professor Phillips contends that questions about the adequacy of a product's design should be resolved by the use of a risk-utility test and that the existence of an adequate warning should merely be one factor for the jury to take into account. This is essentially the position espoused by the Restatement (Third) of Torts: Products Liability (hereinafter Third Restatement), section 2, comment l. On the other hand, Professor PhiIlips is very critical of subsections 6(c) and 6(d). These provisions establish liability for the sellers of prescription drugs and medical devices. Section 6(c), which is concerned …
Toward Justice In Tobacco Policymaking: A Critique Of Hanson And Logue And An Alternative Approach To The Costs Of Cigarettes, Richard C. Ausness, Paul A. Lebel
Toward Justice In Tobacco Policymaking: A Critique Of Hanson And Logue And An Alternative Approach To The Costs Of Cigarettes, Richard C. Ausness, Paul A. Lebel
Law Faculty Scholarly Articles
Much of tobacco policymaking has been driven by economic and political forces. Professors LeBel and Ausness offer an alternative approach to tobacco policymaking that places justice concerns at the center of the analysis. Their article presents a detailed critique of a significant recent work by Professors Hanson and Logue advocating extensive tobacco industry liability on economic efficiency grounds. Asserting that a “fresh start” is necessary, LeBel and Ausness identify the interests at play in the tobacco policy arena. Instead of an ambiguous "interest balancing" approach, they construct a policy model that grounds those interests in justice considerations, demonstrating how claims …
Paying For The Health Costs Of Smoking: Loss Shifting And Loss Bearers, Richard C. Ausness
Paying For The Health Costs Of Smoking: Loss Shifting And Loss Bearers, Richard C. Ausness
Law Faculty Scholarly Articles
Cigarette smoking is known to cause cancer, heart disease, and respiratory problems. These health costs are enormous, amounting to more than $50 billion per year. Although some of these costs are borne by smokers, many of them are externalized to nonsmokers. Recently, a number of states have sued tobacco companies in or- der to recover the costs of treating smoking-related diseases through their Medicaid programs. At the present time, the parties have agreed to a settlement that obligates the tobacco companies to pay billions of dollars to the states over the next twenty-five years. In other words, some of the …
Product Category Liability: A Critical Analysis, Richard C. Ausness
Product Category Liability: A Critical Analysis, Richard C. Ausness
Law Faculty Scholarly Articles
Professor Wertheimer has proposed that courts be allowed to hold producers strictly liable for product-related injuries, even though their products are not otherwise defective, as long as the overall risks associated with such products outweigh their benefits. However, this would subject the sellers of inherently dangerous products, such as cigarettes, to potentially devastating liability since their products cannot be made less dangerous. There are better ways to control the consumption of hazardous products if society wishes to do so.
Part I of this article discusses the scope and purpose of the defect requirement in section 402A and in the proposed …
Mass Tort Litigation: Congress's Silent, But Deadly, Reform Effort, Mary J. Davis
Mass Tort Litigation: Congress's Silent, But Deadly, Reform Effort, Mary J. Davis
Law Faculty Scholarly Articles
This article explores the ways in which The Common Sense Product Liability and Legal
Reform Act (“Act”) treats mass tort litigation issues. The Act does so both directly and indirectly. The direct methods of reform are mostly industry-specific and, thus, almost inconsequential in contrast to the indirect treatment. The indirect, almost clandestine, methods of reform are the most insidious and provide the most cause for concern as Congress once again attempts to "reform" products liability by reintroducing the Act in 1997. Given the President's early indication that a reform measure could meet with his approval, but that this one in …
An Insurance-Based Compensation System For Product-Related Injuries, Richard C. Ausness
An Insurance-Based Compensation System For Product-Related Injuries, Richard C. Ausness
Law Faculty Scholarly Articles
In recent years, an increasing number of commentators have begun to express doubts about the effectiveness of the tort system. According to these critics, tort law does not deter accidents, nor does it spread accident costs efficiently. Worst of all, the tort system is extremely expensive to operate. Some of this criticism has spilled over into the products liability area. Products liability law has been condemned as expensive, ineffective, and regressive; in addition, it has been blamed for higher product prices, foreign competition, problems within the liability insurance industry, corporate bankruptcies, lack of product development, and the removal of useful …
The Supreme Court And Our Culture Of Irresponsibility, Mary J. Davis
The Supreme Court And Our Culture Of Irresponsibility, Mary J. Davis
Law Faculty Scholarly Articles
This article chronicles the Supreme Court's expansion of the “culture of irresponsibility,” where institutional defendants are freed from tort liability with no check on the abuse of such immunity. Professor Davis describes the Court's progression toward immunity in products liability decisions of the past decade including East River Steamship, Boyle, Cipollone, and Lohr. Noting the effect of the Court's decisions in promoting institutional irresponsibility, Professor Davis encourages the Court to use its “cultural influence” and reconsider its broad extension of immunity which has spread to situations and institutional defendants the Court never imagined.
Reflections On Current Limits On Component And Raw Material Supplier Liability And The Proposed Third Restatement, Edward M. Mansfield
Reflections On Current Limits On Component And Raw Material Supplier Liability And The Proposed Third Restatement, Edward M. Mansfield
Kentucky Law Journal
No abstract provided.
Individual And Institutional Responsibility: A Vision For Comparative Fault In Products Liability, Mary J. Davis
Individual And Institutional Responsibility: A Vision For Comparative Fault In Products Liability, Mary J. Davis
Law Faculty Scholarly Articles
Since the adoption of strict products liability over the last thirty years, two problems of scope have received the most attention: how to define product defectiveness to which the liability attaches, and how to limit the potentially limitless liability through defenses. Much like the industries of the nineteenth century, product liability defendants of the twentieth century turned to the plaintiff's conduct as a main line of defense. Blaming the victim has historically been a powerful tool for tort defendants to evade responsibility for their conduct. This Article proposes that the defenses based on victim fault that have evolved in our …