Torts Commons^™

Foreword: Fault In American Contract Law, Omri Ben-Shahar, Ariel Porat

Michigan Law Review

The basic rule of liability in tort law is fault. The basic rule of liability in contract law is no fault. This is perhaps one of the most striking divides within private law, the most important difference between the law of voluntary and nonvoluntary obligations. It is this fault line (speaking equivocally) that the present Symposium explores. Is it a real divide-two opposite branches of liability within private law-or is it merely a rhetorical myth? How can it be justified? As law-and-economics scholars, this fault/no-fault divide between contract and tort is all the more puzzling. In law and economics, legal …

Working Without A Net: The Third Circuit Juggles Skepticism And Deference Inside The Ring Of Products Liability Experts After The Daubert Trilogy In Pineda V. Ford Motor Co. & (And) Calhoun V. Yamaha Corp., Jennifer E. Burke

Villanova Law Review (1956 - )

No abstract provided.

Are Artificial Tans The New Cigarette? How Plaintiffs Can Use The Lessons Of Tobacco Litigation In Bringing Claims Against The Indoor Tanning Industry, Andrea Y. Loh

Michigan Law Review

Indoor tanning salons have grown significantly in popularity during recent years. Scientific research has revealed a strong link between skin cancer and ultraviolet light exposure from indoor tanning lamps. Despite such dangers, federal regulations place minimal restrictions on the labeling of indoor tanning lamps. Indoor tanning salons work vigorously to dispel notions of a link to skin cancer, often falsely promoting various health benefits of indoor tanning. The first lawsuit for injuries resulting from indoor tanning was recently filed against an indoor tanning salon, and other such litigation is poised to follow. This Note examines three potential tort claims against …

Torts And Innovation, Gideon Parchomovsky, Alex Stein

Michigan Law Review

This Essay exposes and analyzes a hitherto overlooked cost of tort law: its adverse effect on innovation. Tort liability for negligence, defective products, and medical malpractice is determined by reference to custom. We demonstrate that courts' reliance on custom and conventional technologies as the benchmark of liability chills innovation and distorts its path. Specifically, recourse to custom taxes innovators and subsidizes replicators of conventional technologies. We explore the causes and consequences of this phenomenon and propose two possible ways to modify tort law in order to make it more welcoming to innovation.

Brief Of Amicus Curiae Aarp In Support Of Respondents, Warner-Lambert Company Llc V. Kent, No. 06-1498 (U.S. Jan. 18, 2008), Kathryn A. Sabbeth, David C. Vladeck

U.S. Supreme Court Briefs

No abstract provided.

Secrecy In The Courts: At The Tipping Point, Joseph F. Anderson Jr.

Villanova Law Review (1956 - )

No abstract provided.

Brief Of Consumers Union Of United States, Inc., As Amicus Curiae In Support Of Petitioners, Riegel & Riegel V. Medtronic, Inc., No. 06-179 (U.S. Aug. 27, 2007), Lisa Heinzerling

U.S. Supreme Court Briefs

No abstract provided.

Conspiracy Theories: Is There A Place For Civil Conspiracy In Products Liability Litigation?, Richard C. Ausness

Law Faculty Scholarly Articles

A civil conspiracy is a group of two or more persons acting together to achieve an unlawful objective or to achieve a lawful objective by unlawful or criminal means. During the past two decades, plaintiffs have brought numerous civil conspiracy claims against product manufacturers. The defendants in these cases have included manufacturers or producers of tobacco products, asbestos, pharmaceuticals, lead-based paint, multi-rim truck wheels, and gasoline additives. Surprisingly, less than half of the civil conspiracy claims have made it to trial. This unimpressive success rate suggests that courts are not very receptive to civil conspiracy claims even when there is …

Fattening Food: Should Purveyors Of Fast Food Be Required To Warn? A Call For A New Tort, Charles E. Cantu

Journal of Food Law & Policy

Being overweight continues to be an important issue for many Americans. The latest diet fad is likely to include at least one title on the current bestseller list, and newspapers carry daily articles on the most recent study regarding risks related to obesity. Heeding these concerns, the federal government has added its own impetus by requiring the packaged food industry to list, not only nutritional information, but also calories. Individuals alleging injury and seeking recourse have made an attempt to place fault upon purveyors of fast food. To date, American jurisprudence has not helped. The courts have suggested that, from …

Products Liability In The Twenty-First Century: A Review Of Owen’S Products Liability Law, Richard C. Ausness

Law Faculty Scholarly Articles

Professor Richard C. Ausness reviews Products Liability Law, a treatise by David Owen.

Taking A Bite Out Of The Harmful Effects Of Mercury In Dental Fillings: Advocating For National Legislation For Mercury Amalgams, Kimberly M. Baga

Journal of Law and Health

Mary Stephenson, a fifty-nine-year-old grandmother, visited dozens of counselors and experienced with an array of antidepressants but nothing worked to curb her suicidal feelings. Janie McDowell, a fifty-six-year-old housewife, suffered from hand tremors, leg-muscle spasms, recurring nausea, chronic bladder and kidney infections, severe depression, short-term memory loss, and slurred speech. Freya Koss, a former event planner, experienced dizziness and double vision. Physicians misdiagnosed Koss with lupus, multiple sclerosis, and, finally myasthenia gravis. The common theme among these medical tragedies is that the above victims all returned to being healthy, active adults after the removal of their mercury amalgam dental fillings. …

The (Legal) Pains Of Vioxx: Why Product Liability Can Make Products More Dangerous, Omri Ben-Shahar

Articles

Comparing the experience of Vioxx and Celebrex leads Omri Ben-Shahar to think that stiff product liability has the perverse effect of inducing manufacturers of defective products to leave these products on the market, rather than withdraw them.

The Challenge To The Individual Causation Requirement In Mass Products Torts, Donald G. Gifford

Faculty Scholarship

This article uses the example of mass products torts to test the traditional principle that requires a specific victim to prove that a particular injurer caused her harm in order to establish tort liability. Proponents of the instrumentalist conception of torts, notably those identified with law and economics such as Calabresi and Posner, view any requirement of individualized causation as “old-fashioned” and inconsistent with their goals of achieving loss minimization and loss distribution or wealth maximization. In contrast, corrective justice theorists, such as Ernest Weinrib, argue that particularized causation is intrinsic to the entire notion of tort liability. The judicial …

Tell Me What You Eat, And I Will Tell Whom To Sue: Big Trouble Ahead For “Big Food"?, Richard C. Ausness

Law Faculty Scholarly Articles

Overweight consumers are seeking damages from purveyors of fast food for obesity-related health problems. Plaintiffs claim that products that are high in fat, sugar, salt and cholesterol are defective. Other potential liability theories include product category liability, failure to warn, failure to disclose nutritional information, deceptive advertising, and negligent marketing. However, in order to prevail at trial, plaintiffs must overcome problems with causation, duty and proximate cause, shifting responsibility, federal preemption, comparative fault, and assumption of risk. If such litigation is successful, it may induce fast-food companies to produce healthier products. Nevertheless, this Article concludes that the problem of obesity, …

Public Tort Litigation: Public Benefit Or Public Nuisance?, Richard C. Ausness

Law Faculty Scholarly Articles

One of the latest developments in products liability law is "public tort" litigation. Public tort or government-sponsored lawsuits are actions by federal, state, or local government entities to recover the cost of public services provided to persons who have been injured as the result of a defendant's alleged misconduct. The best known example is the tobacco litigation of the mid-1990s in which more than forty states brought suit against the leading tobacco companies to recoup the cost of providing health care services to indigent smokers. Eventually, the tobacco companies agreed to pay the states more than $200 billion and also …

Not So Peaceful Coexistence: Inherent Tensions In Addressing Tort Law Reform, Jeffrey W. Stempel

Scholarly Works

As Professor Michael Green's comments trenchantly remind us, all of this has a familiar ring: insurers and tort defendants claim unfairly escalating liability, plaintiffs' lawyers and consumer groups counterattack, and (for the most part), insurers and defendants obtain some of the relief they seek. The tort reform victories are not so overwhelming as to completely unravel the historical rights of victims or the power of courts generally, but some constriction of rights inevitably occurs. During periods of quiescence, plaintiffs and consumers take back some lost territory through common law victories expanding claimant rights, or through specific legislation. Statutes that permitted …

Constructing Products Liability: Reforms In Theory And Procedure, Frank J. Vandall

Villanova Law Review (1956 - )

No abstract provided.

Panel Remarks On Liability: Liability For Refusing To Use Agricultural Biotechnology, Drew Kershen

Richmond Journal of Law & Technology

Good afternoon. I’m very pleased to be here. I appreciate the offer and the invitation from the Richmond Journal of Law & Technology to speak at this conference. This final panel is really about liability issues related to genetically modified foods or transgenic crops. Now I just want to quickly introduce these three people, and I’m going to start on my far side with Rachel Lattimore. Rachel Lattimore is a lawyer with the firm of Arent Fox in Washington D.C., and she is going to focus her talk – and we’ve sort of agreed among ourselves so we don’t step …

Tort Liability For The Sale Of Non-Defective Products: An Analysis And Critique Of The Concept Of Negligent Marketing, Richard C. Ausness

Law Faculty Scholarly Articles

This Article will evaluate the concept of negligent marketing to see whether it ought to become a part of our legal jurisprudence or whether it should be discarded as doctrinally unsound, possibly harmful to important social and economic interests.

Part II of this Article provides an overview of the negligent marketing theory. Negligent marketing can be divided into three categories: (1) product designs that make the product more attractive to criminals; (2) advertising and promotional activities that target inappropriate users; and (3) product distribution practices that facilitate retail sales of dangerous products to vulnerable or unsuitable users. The first category …

Product Liability: A Commentary On The Liability Of Suppliers Of Component Parts And Raw Materials, David A. Fischer

Faculty Publications

The liability of suppliers of raw materials and component parts for harm caused by the product into which the materials have been incorporated poses difficult questions. When the raw material or component part is clearly defective, there is no question that the supplier is liable. Thus, where an ingredient in processed food is contaminated or where a truck tire has a flaw that causes a blowout, the supplier of the ingredient or the tire is liable. The difficult questions arise where the components are not inherently defective, but the finished product is defective because it lacks a safety feature or …

Tort Reform 1999: A Building Without A Foundation, Robert S. Peck, Richard Marshall, Kenneth D. Kranz

Florida State University Law Review

No abstract provided.

Information Liability: The Possible Chilling Effect Of Tort Claims Against Producers Of Geographic Information Systems Data, Jennifer L. Phillips

Florida State University Law Review

No abstract provided.

Product Liability Issues In Mass Torts - View From The Bench, Hon. Helen E. Freedman

Touro Law Review

No abstract provided.

The Restatement Third, Torts: Products Liability: Progress Or A Radical Departure For West Virginia, J. Zachary Zatezalo

West Virginia Law Review

No abstract provided.

Replacing Strict Liability With A Contract-Based Products Liability Regime, Richard C. Ausness

Law Faculty Scholarly Articles

When strict products liability first appeared on the scene some thirty-five years ago, it was heralded as a boon to consumers whose claims to compensation had hitherto been frustrated by the law of sales. Warranty law, it was said, worked fairly well in purely "commercial" transactions, but tort law did a better job in cases where ordinary consumers suffered personal injuries or property damage from defective products. To be sure, defenders of warranty law pointed out that the newly-drafted Uniform Commercial Code (the "Code" or "U.C.C.") was much more consumer friendly than the old Uniform Sales Act. Nevertheless, the proponents …

Kentucky Law Survey: Torts, Ronald L. Green

Kentucky Law Journal

No abstract provided.

A National Product Liability Statute Of Repose - Let's Not, Stephen J. Werber

Law Faculty Articles and Essays

Despite the failure of the 104th Congress to override President Clinton's veto and enact the Common Sense Product Liability Legal Reform Act, there is little doubt that such an Act will be passed by the 105th Congress. Uniform national laws concerning product liability are necessary, can be enacted consistent with Congressional authority, and should be enacted at the earliest possible time. A balanced Act, recognizing the need to protect injured consumers while providing necessary protection to product manufacturers and distributors, can be drafted. Such an Act could include provisions that abolish the consumer expectancy test for design defect litigation, reject …

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

Scholarly Works

No abstract provided.

Does Fifra Label State Tort Claims For Inadequate Warning Preempted - Welchert V. American Cyanamid, Inc., Ian M. Hughes

Villanova Environmental Law Journal (1991 - )

No abstract provided.

Learned Intermediaries And Sophisticated Users: Encouraging The Use Of Intermediaries To Transmit Product Safety Information, Richard C. Ausness

Law Faculty Scholarly Articles

The general rule, under both negligence principles and strict products liability, is that a producer or supplier is required to warn users or consumers of its products. In most cases, this duty can be satisfied by placing a warning label on the product itself or by providing safety information in an owner's manual or in other literature attached to or enclosed with the product. However, there are some situations where it is difficult or impracticable to provide a direct warning to the ultimate user or consumer. In such cases, producers and suppliers should be able to satisfy their duty to …