Law Commons^™

The Perfect Storm? International Trade In American-Style Tort Litigation, David L. Wallace

David L. Wallace

No abstract provided.

Green Medicine: Using Lessons From Tort Law And Environmental Law To Hold Pharmaceutical Manufacturers And Authorized Distributors Liable For Injuries Caused By Counterfeit Drugs, Stephanie Feldman Aleong

Stephanie Feldman Aleong

Counterfeit and adulterated prescription drugs have caused serious harm to consumers when these tainted products have easily permeated the legitimate marketplace over the last decades. Criminals and other actors introduce fake, adulterated, expired and foreign drugs into the drug distribution network which puts unsafe medicine into the hands of innocent consumers.

Due to the FDA’s identification of the dramatic rise in counterfeit drug investigations, in June of 2006, the FDA finally lifted the nearly twenty-year-old stay on requiring pedigree documentation, an actual history of the distribution transactions of a medicine before reaching a dispensing pharmacy, only to find that a …

If The Glove Don’T Fit, Try Newer Gloves: The Unplanned Obsolescence Of The Substantial Similarity Standard For Experimental Evidence, Jonathan M. Hoffman

Jonathan M Hoffman

In the context of a recent Fifth Circuit decision, this article reviews the law concerning the admissibility of “experimental” and demonstrative evidence. The standards used to determine the admissibility of both categories of evidence predate the Federal Rules of Evidence. These standards for admission of such evidence are obsolete and at odds with the Federal Rules. The issue is particularly important in the wake of the Kumho Tire decision and the 2000 amendments to Federal Rule of Evidence 702, as engineers and other technical experts are increasingly called upon to test their hypotheses, even as the courts’ continued use of …

Disparities Between Asbestosis And Silicosis Claims Generated By Litigation Screenings And Clinical Studies, Lester Brickman

Lester Brickman

In 2005, U.S. District Court Judge Janis Jack, presiding over an MDL proceeding involving 10,000 claims of silicosis emanating from litigation screenings, issued a 264 page opinion rejecting the reliability of thousands of medical reports generated by those screenings. Before issuing her opinion, she ordered a Daubert hearing to assess the reliability of these medical reports which had been issued by a handful of doctors. In furtherance of this unprecedented use of a Daubert hearing in a mass tort proceeding, she compelled the production of a large volume of evidence, under threat of contempt, that the screening companies and doctors …

Disparities Between Asbestosis And Silicosis Claims Generated By Litigation Screenings And Clinical Studies, Lester Brickman

Lester Brickman

In 2005, U.S. District Court Judge Janis Jack, presiding over an MDL proceeding involving 10,000 claims of silicosis emanating from litigation screenings, issued a 264 page opinion rejecting the reliability of thousands of medical reports generated by those screenings. Before issuing her opinion, she ordered a Daubert hearing to assess the reliability of these medical reports which had been issued by a handful of doctors. In furtherance of this unprecedented use of a Daubert hearing in a mass tort proceeding, she compelled the production of a large volume of evidence, under threat of contempt, that the screening companies and doctors …

Somebody Has To Pay: Products Liability For Spyware, Jacob R. Kreutzer

Jacob R Kreutzer

It can be unsettling to discover that you have spyware (software that tracks user behavior and displays advertisements) installed on your computer. The signs of its presence can vary: a new toolbar may appear in your browser, or you may experience a proliferation of pop up advertisements. Whatever the symptoms, the cause is the same: a piece of software that was inconspicuous (or invisible) at the time of its installation is now dedicating itself to disrupting your use of your computer. A persistent consumer will likely be able to identify spyware that is present on his computer, whether through technological …

Who Knew? Admissibility Of Subsequent Remedial Measures When Defendants Are Without Knowledge Of The Injuries, Mark Boyko, Ryan Vacca

Mark Boyko

Federal Rule of Evidence 407 prohibits the introduction of subsequent remedial measures for the purposes of demonstrating negligence, culpable conduct, or product defect. But the rule breaks down when a defendant undertakes the new safety measure after the plaintiff's injury, but before the defendant had knowledge of the loss. This situation is not uncommon. Toxic exposure cases represent a prime example where defendants are likely to have improvements before learning of a plaintiff's injury. Should evidence of these improvements be admissible? The literal text of Rule 407 suggests not. Yet admitting this evidence may not have the same chilling effect …

Punitive Damages And Valuing Harm, Alexandra B. Klass

Alexandra B. Klass

In 2003, the Supreme Court created a presumption that only single-digit ratios of punitive damages to compensatory damages would satisfy substantive due process limits. The exception to this presumption is when the defendant’s misconduct results in only a small amount of compensatory damages or when harm is difficult to value. This Article proposes that while lower courts have properly departed from single-digit ratios where the compensatory damage are small, they have had more difficulty doing so when harm is difficult to value. As a result, lower courts are mechanically applying a single-digit ratio in cases where the Court’s current framework …

Sample Prescription Drugs And The "Learned Intermediary": Liability Without Preemption, Susan Poser

Susan Poser

Alchemy In The Courtroom? The Transmutation Of Public Nuisance Litigation, Richard O. Faulk, John S. Gray

Richard Faulk

This Article continues our study of the public nuisance controversy regarding lead paint. Although lead paint cases are certainly not the only claims where public nuisance principles are being advocated, they are the most conspicuous claims, and they have attracted the most attention from advocates, courts, and commentators. For that reason, we have focused on the lead paint paradigm. Moreover, as will be seen, the allegations asserted in these claims are not unique to lead paint but can be applied generically by ingenious counsel to virtually any product or conduct imaginable. Hence, examining the lead paint controversy provides insight into …

Jackpot Justice: Verdict Variability And The Mass Tort Class Action, Byron G. Stier

Byron G. Stier

Mass tort scholars, practitioners, and judges struggle with determining the most efficient approach to adjudicate sometimes tens of thousands of cases. Favoring class actions, mass tort scholars and judges have assumed that litigating any issue once is best. But while litigating any one issue could conceivably save attorneys’ fees and court resources, a single adjudication of thousands of mass tort claims is unlikely to further tort goals of corrective justice, efficiency, or compensation in a reliable way. That is because, as recent empirical research on jury behavior shows, any one jury’s verdict may be an outlier on a potential bell …

Who Knew? The Admissibility Of Subsequent Remedial Measures When Defendants Are Without Knowledge Of The Injuries, Ryan G. Vacca

Ryan G. Vacca

Federal Rule of Evidence 407 and equivalent state court rules prohibit the introduction of subsequent remedial measures for the purpose of demonstrating negligence, culpable conduct, or product defect. The rule breaks down, however, in application and purpose, when a defendant undertakes a new safety measure after the plaintiff's injury but before the defendant had knowledge of the loss. Such a situation is not uncommon. Would-be defendants frequently improve their products and product safety, whether in response to injuries incurred by other users, business pressures, or simply advances in the state of the art and scientific knowledge. Toxic exposure cases, where …

2007 Cumulative Supplement To Oklahoma Product Liability Law, Vicki Macdougall

Vicki Lawrence MacDougall

No abstract provided.