Law Commons^™

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 In Rem/In Personam Distinction And Partitioning For Persistence, Shyamkrishna Balganesh, Leo Katz

Faculty Scholarship

In the second of his two famous articles, Hohfeld seeks to do for the in rem/in personam distinction what he did so persuasively in his first for the terminology of rights, claims, duties, privileges, powers, immunities, and disabilities, which was to identify their essence, and to thereby describe the “natural kind” (in more modern parlance) lurking beneath the thicket of confused juristic rhetoric. The thesis in this second article, however, is a simpler and in some way more beguiling one than in his first. He claims that what the distinction between in rem and in personam jural relations comes down …

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 …

Nothing Generic About It: Promoting Therapeutic Access By Overcoming Regulatory And Legal Barriers To A Robust Generic Medical Device Market, Megan S. Wright, Zachary Shapiro, Adam Pan, Keturah James, Joseph Fins

Journal Articles

This Article addresses a paradox in American healthcare technology: a thriving market for generic drugs but a paucity of generic medical devices. Despite the success of generic pharmaceuticals in reducing healthcare costs, no analogous market exists for generic medical devices. This plays a part in keeping prices high while limiting access to affordable therapies. In this Article, we highlight the regulatory and legal barriers currently impeding the development of a generic medical device market in the United States. We explore differences between generic drugs and generic devices in FDA regulation, products liability, and patentability, all of which contribute to the …

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 …

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 …

Economic Rationality And Ethical Values In Design-Defect Analysis: The Trolley Problem And Autonomous Vehicles, W. Bradley Wendel

Cornell Law Faculty Publications

The trolley problem is a well-known thought experiment in moral philosophy, used to explore issues such as rights, deontological reasons, and intention and the doctrine of double effect. Recently it has featured prominently in popular discussions of decision making by autonomous vehicle systems. For example, a Mercedes-Benz executive stated that, if faced with the choice between running over a child that had unexpectedly darted into the road and steering suddenly, causing a rollover accident that would kill the driver, an automated Mercedes would opt to kill the child. This paper considers not the ethical issues raised by such dilemmas, but …

The Computer Made Me Do It: Is There A Future For False Claims Act Liability Against Electronic Health Record Vendors?, Deborah R. Farringer

Law Faculty Scholarship

Since the advent of the movement toward the use of electronic medical records, an axiom in the promotion of electronic health records (EHRs) has been the idea that the use of EHRs will reduce medical errors. Certainly, there are countless examples of how technology can improve the health care experience and aid providers in reducing medical errors, including errors of medication administration, medication management, access to decision support tools, telemedicine, immediate access to diagnostic tests and other clinical information and treatment results—just to name a few. Even with such improvements, however, EHRs have not entirely eliminated medical errors and new …

The Second Amendment & Private Law, Cody Jacobs

Faculty Scholarship

The Second Amendment, like other federal constitutional rights, is a restriction on government power. But what role does the Second Amendment have to play—if any—when a private party seeks to limit the exercise of Second Amendment rights by invoking private law causes of action? Private law—specifically, the law of torts, contracts, and property—has often been impacted by constitutional considerations, though in seemingly inconsistent ways. The First Amendment places limitations on defamation actions and other related torts, and also prevents courts from entering injunctions that could be classified as prior restraints. On the other hand, the First Amendment plays almost no …

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 …

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 …

“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 …

Proximity-Driven Liability, Bryant Walker Smith

Faculty Publications

This working paper argues that commercial sellers’ growing information about, access to, and control over their products, product users, and product uses could significantly expand their point-of-sale and post-sale obligations toward people endangered by these products. The paper first describes how companies are embracing new technologies that expand their information, access, and control, with primary reference to the increasingly automated and connected motor vehicle. It next analyzes how this proximity to product, user, and use could impact product-related claims for breach of implied warranty, defect in design or information, post-sale failure to warn or update, and negligent enabling of a …

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

Faculty Publications

This article offers four different perspectives on the strict products-liability "revolution" that climaxed a half-century ago. One of these narratives relates the prevailing assessment of how this innovation coalesced and spread across the states. The three alternative histories introduced by this article both challenge and complement the standard account by viewing 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 certain types of once-common products cases forged a practical argument for …

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 …

Technology Drives The Law: A Foreword To Trends And Issues In Techology & The Law, Ralph D. Clifford

Faculty Publications

Technology has always been a motivating force of change in the law. The creation of new machines and development of novel methods of achieving goals force the law to adapt with new and responsive rules. This is particularly true whenever a new technology transforms society. Whether it is increasing industrialization or computerization, pre-existing legal concepts rarely survive the transition unaltered - new prescriptions are announced while old ones disappear.

An Economic Perspective On Preemption, Keith N. Hylton

Faculty Scholarship

This Essay has two goals. The first is to present an economic theory of preemption as a choice among regulatory regimes. The optimal regime choice model is used to generate specific implications for the court decisions on preemption of products liability claims. The second objective is to extrapolate from the regime choice model to consider its implications for broader controversies about preemption.

"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

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 …

When The Restatement Is Not A Restatement: The Curious Case Of The "Flagrant Trespasser", David Logan

Law Faculty Scholarship

No abstract provided.

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 …

An Essay On Torts: States Of Argument, Marshall S. Shapo

Faculty Working Papers

This essay summarizes high points in torts scholarship and case law over a period of two generations, highlighting the "states of argument" that have characterized tort law over that period. It intertwines doctrine and policy. Its doctrinal features include the tradtional spectrum of tort liability, the duty question, problems of proof, and the relative incoherency of damages rules. Noting the cross-doctrinal role of tort as a solver of functional problems, it focuses on major issues in products liability and medical malpractice. The essay discusses such elements of policy as the role of power in tort law, the tension between communitarianism …

Privacy As Product Safety, James Grimmelmann

Cornell Law Faculty Publications

Online social media confound many of our familiar expectations about privacy. Contrary to popular myth, users of social software like Facebook do care about privacy, deserve it, and have trouble securing it for themselves. Moreover, traditional database-focused privacy regulations on the Fair Information Practices model, while often worthwhile, fail to engage with the distinctively social aspects of these online services.

Instead, online privacy law should take inspiration from a perhaps surprising quarter: product-safety law. A web site that directs users' personal information in ways they don't expect is a defectively designed product, and many concepts from products liability law could …

Thoughts On Preemption In The Wake Of The Levine Decision, Erika Lietzan, Sarah E. Pitlyk

Faculty Publications

This article discusses the prospects for preemption doctrine in the wake of the Supreme Court’s decision in Wyeth v. Levine. Part I describes the Levine decision. Part II examines the majority’s holding as it relates to impossibility preemption and considers the future of the doctrine in failure-to-warn suits after Levine. We argue that the announced standard for impossibility preemption — the clear evidence standard — should be interpreted reasonably and not in a manner that effectively eviscerates the doctrine. We also describe other instances of impossibility in the food and drug regulatory context that were not presented to the Court. …

The Relation Between Regulation And Class Actions: Evidence From The Insurance Industry, Eric Helland, Jonathan Klick

All Faculty Scholarship

Standard law and economics models imply that regulation and litigation serve as substitutes. We test this by looking at the incidence of insurance class actions as a function of measures of regulatory enforcement. We also look specifically at whether states with clear regulatory standards regarding the use of OEM parts experience less litigation over this issue. We find no evidence of substitution between regulation and litigation. We also examine the possibility that litigation is more frequent in states where regulators are more likely to be captured by industry interests, finding no support for this hypothesis either. Instead, litigation is more …

Does Anyone Get Stopped At The Gate? An Empirical Assessment Of The Daubert Trilogy In The States, Eric Helland, Jonathan Klick

All Faculty Scholarship

The Supreme Court’s trilogy of evidence cases, Daubert, Joiner, and Kumho Tire appear to mark a significant departure in the way scientific and expert evidence is handled in federal court. By focusing on the underlying methods used to generate the experts’ conclusions, Daubert has the potential to impose a more rigorous standard on experts. Given this potential, some individuals have called for states to adopt the Daubert standards to purge “junk science” from state courts. However, there is relatively little empirical support for the notion that Daubert affects the quality of expert evidence. Using a large dataset of state court …

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. …

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 …