Products Liability

by Henderson, James A.; Twerski, Aaron D.

• ISBN13: 9780735540316
• ISBN10: 0735540314
• Edition: 5th
• Format: Hardcover
• Copyright: 2004-03-01
• Publisher: Wolters Kluwer

Summary

This newly revised book draw on the expertise of its authors, The reporters For The Restatement (Third) of Torts: Products Liability, To provide a solid introduction in a compact format. in addition to its outstanding authorship, Product Liability: Problems and Process, Fifth Edition, offers: Full integrations of the Restatement rules and comments in the text. A problem-based approach that applies the law to real life situations. A student friendly mix of cases, notes, and problems to introduce black letter law and its underlying policies. A manageable length without sacrificing important coverage. Changes For The Fifth Edition respond to developments in the field: Author's Dialogues -- informal, highly engaging discussions and debates between the authors that raise interesting and provocative points about important issues. Material from the Restatement, General Principles, incorporated in the coverage of proximate cause. Expanded treatment of design defects relocated to Chapter 4, with discussion of special problems of proof of defect. A separate chapter on Federal Preemption. New cases, including Speller v. Sears, Roebuck, Laidlaw v. Hariton, Rider v. Sandoz Pharmaceuticals, D'Amario v. Ford Motor Company, and Metro-North Commuter R.R. v. Buuckley. New hypotheticals and problems Unmatched in authority, quality, and currency, Products Liability: Problems and Process, Fifth Edition, deserves your careful consideration for adoption.

Table of Contents

Preface to the Fifth Edition	xxi
Acknowledgments	xxiii
PART I Liability for Manufacturing Defects	1	(158)
CHAPTER ONE Manufacturers' Strict Liability for Defect-Caused Harm	3	(64)
A. The Role of Negligence in the Formative Period	4	(10)
1. Negligence from First-Year Torts	4	(2)
2. The Fall of the Privity Rule	6	(2)
3. The Rise of Res Ipsa Loquitur	8	(6)
Escola v. Coca Cola Bottling Co.	9	(4)
Authors' Dialogue 1	13	(1)
B. The Modern Rule of Strict Liability in Tort	14	(19)
1. Implied Warranty as a Bridge to Strict Liability in the 1950's and Early 1960's	14	(5)
Greenman v. Yuba Power Products, Inc.	16	(3)
2. Adoption of §402A of the Restatement (Second) of Torts in 1965	19	(6)
Pulley v. Pacific Coca-Cola Bottling Co.	21	(2)
Practical Implications: What Does Strict Liability Actually Accomplish?	23	(1)
Problem One	24	(1)
3. Policy Objectives Supporting Strict Liability in Tort	25	(5)
James A. Henderson, Jr., Coping with the Time Dimension in Products Liability	26	(2)
Problem Two	28	(2)
4. Why Strict Liability for Manufacturing Defects Is Workable	30	(3)
James A. Henderson, Jr., Why Negligence Dominates Tort	30	(3)
C. Defect as the Linchpin of Strict Products Liability	33	(12)
1. What Makes a Product Defective? (The Conceptual Dimension)	33	(6)
Cronin v. J.B.E. Olson Corp.	33	(5)
Problem Three	38	(1)
2. How Does the Plaintiff Prove Original Defect? (The Practical Dimension)	39	(6)
Speller v. Sears, Roebuck & Co.	41	(3)
Problem Four	44	(1)
D. The Boundaries of Strict Products Liability	45	(22)
1. What Are (and What Are Not) Products?	45	(10)
Winter v. G.P. Putnam's Sons	49	(4)
Problem Five	53	(1)
Postscript on Blood and Other Human Tissue	53	(2)
2. Which Commercial Activities Constitute "Selling or Otherwise Distributing"?	55	(9)
Magrine v. Krasnica	59	(5)
3. When Is a Product Seller or Other Distributor "In the Business of Selling or Distributing"?	64	(3)
Authors' Dialogue 2	65	(2)
CHAPTER TWO Assigning Responsibility Inside and Outside the Commercial Chain of Distribution	67	(50)
A. Allocating Responsibility Between Product Distributors and Other Defendants and Among Members of the Distributive Chain	67	(13)
1. Joint and Several Liability	67	(3)
2. Letting Retailers and Wholesalers Out of the Litigation	70	(4)
Authors' Dialogue 3	72	(2)
Problem Six	74	(1)
3. Contribution Among Members of the Distributive Chain	74	(2)
4. Indemnity Rights up the Distributive Chain	76	(2)
5. Settlement and Release Between the Plaintiff and Members of the Distributive Chain	78	(2)
B. Assigning Responsibility Collectively to the Distributive Chain	80	(15)
1. Holding Members of the Distributive Chain Liable Collectively in the Normal Course of Events	81	(1)
2. Special Circumstances that May Justify a More Aggressive Approach to Shifting Responsibility to the Entire Chain	82	(13)
Anderson v. Somberg	82	(6)
Problem Seven	88	(5)
Charles W Wolfram, Modern Legal Ethics	93	(2)
C. Assigning Responsibility for Product-Related Workplace Accidents	95	(22)
1. Direct Attack by the Employee Against the Employer	95	(14)
a. The Worker Compensation Bar to Employer Tort Liability	95	(1)
b. The Intentional Tort Exception to the Worker Compensation Bar	95	(1)
Laidlow v. Hariton Machinery Co., Inc.	99	(8)
c. The Dual Capacity Doctrine	107	(2)
2. Allocating Responsibility Between the Employer (the Worker Compensation System) and the Product Manufacturer (the Products Liability System)	109	(9)
Kotecki v. Cyclops Welding Corp.	109	(5)
Authors' Dialogue 4	114	(3)
CHAPTER THREE Causation	117	(42)
A. Did the Product Actually Cause the Plaintiff's Harm?	118	(13)
1. But-For Causation in General	118	(1)
2. Special Problems of Proof: Reliance on Experts	119	(12)
Rider v. Sandoz Pharmaceutical Corp.	123	(5)
Authors' Dialogue 5	128	(2)
Problem Eight	130	(1)
B. Did the Defendant Supply the Product?	131	(6)
1. Defendant Identification in General	131	(1)
2. Creative Attempts to Solve a Unique Problem: Market Share	131	(6)
Problem Nine	136	(1)
C. Did the Defect in the Defendant's Product Contribute to Harming the Plaintiff?	137	(12)
1. All-or-Nothing Causation	137	(3)
Midwestern V W Corp. v. Ringley	137	(2)
Problem Ten	139	(1)
Authors' Dialogue 6	140	(1)
2. Enhanced Injury	140	(7)
Lahocki v. Contee Sand & Gravel Co., Inc.	140	(6)
Authors' Dialogue 7	146	(1)
3. Loss-of-a-Chance	147	(2)
Problem Eleven	148	(1)
D. Did the Defective Product Proximately Cause the Plaintiff's Harm?	149	(12)
Union Pump Co. v. Allbritton	149	(4)
Authors' Dialogue 8	153	(4)
Problem Twelve	157	(2)
PART II Liability for Generic Product Risks	159	(344)
CHAPTER FOUR Liability for Defective Design	161	(154)
A. Do We Need Judicial Review of Product Designs?	163	(1)
B. Do We Need the Defect Requirement? What About Broad Enterprise Liability?	164	(3)
James A. Henderson, Jr., Why Negligence Dominates Tort	165	(2)
C. Do We Need an External Standard to Determine Design Defect? Inferring Defect from Product Malfunction	167	(2)
D. Risk-Utility Standards for Determining Design Defect	169	(74)
1. The Reasonable Alternative Design Standard for Determining Design Defect	169	(44)
a. Defining the Standard for Determining Design Defect	172	(1)
Smith v. Louisville Ladder Co.	172	(1)
Problem Thirteen	181	(1)
Authors' Dialogue 9	182	(1)
Problem Fourteen	182	(2)
b. From Which Perspective Should the Product Be Judged? Time of Sale or Time of Trial?	184	(1)
(1) Manufacturers' Responsibility for Post-Sale Increases in Knowledge of Risk	186	(1)
(2) Manufacturers' Responsibility for Post-Sale Improvements in Risk-Avoidance Techniques	187	(1)
(a) State of the Art as a Defense	187	(1)
Boatland of Houston, Inc. v. Bailey	188	(7)
(b) Subsequent Remedial Measures	195	(4)
(3) Manufacturers' Responsibility for Post-Sale Shifts in Public Attitudes Toward Risk	199	(2)
c. Should Reasonable Alternative Design Claims Be Submitted to Juries on Both Negligence and Strict Liability Grounds?	201	(1)
Lecy v. Bayliner Marine Corporation	201	(5)
d. Can a Warning Substitute for a Reasonable Alternative Design?	206	(1)
Uniroyal Goodrich Tire Company v. Martinez	206	(7)
2. Risk-Utility Balancing Without Requiring a Reasonable Alternative Design	213	(5)
Vautour v. Body Masters Sports Industries, Inc.	213	(5)
3. Product Category Liability	218	(25)
O'Brien v. Muskin Corp.	219	(8)
James A. Henderson, Jr. & Aaron D. Twerski, Closing the American Products Liability Frontier: The Rejection of Liability Without Defect	227	(3)
Ellen Wertheimer, The Smoke Gets in Their Eyes: Product Category Liability and Alternative Feasible Designs in the Third Restatement	230	(3)
Carl T. Bogus, War on the Common Law: The Struggle at the Center of Products Liability	233	(1)
Dawson v. Chrysler Corp.	234	(6)
Authors' Dialogue 10	240	(3)
E. The Consumer Expectations Standard for Determining Design Defect	243	(26)
1. Consumer Expectations as a Sword to Impose Liability	244	(15)
Heaton v. Ford Motor Co.	244	(4)
Potter v. Chicago Pneumatic Tool Company	248	(7)
Problem Fifteen	255	(1)
The Uniform Commercial Code and the Consumer Expectations Test	256	(3)
2. Consumer Expectations as a Shield Against Liability	259	(10)
Halliday v. Strum, Ruger & Co., Inc.	259	(7)
Authors' Dialogue 11	266	(3)
F. The Two-Prong Standard for Determining Design Defect	269	(11)
Soule v. General Motors Corporation	269	(10)
Authors' Dialogue 12	279	(1)
Problem Sixteen	280	(1)
G. Idiosyncratic Standards for Determining Design Defect	280	(2)
H. Special Duty Problems in Design Litigation	282	(22)
1. Whether and to What Extent Should Courts Defer to Markets?	282	(8)
Linegar v. Armour of America, Inc.	282	(3)
Scarangella v. Thomas Built Buses, Inc.	285	(5)
2. Whether and to What Extent Should Courts Defer to Safety Statutes or Administrative Regulations?	290	(4)
Authors' Dialogue 13	292	(2)
3. Beyond the Pale: High Profile No-Duty Cases	294	(11)
Hamilton v. Beretta U.S.A. Corp.	295	(5)
In re September 11 Litigation	300	(4)
I Relying on Expert Testimony to Prove Design Defect: Daubert Revisited	304	(1)
J. Special Problems of Misuse, Alteration, and Modification	305	(10)
Morguson v. 3M Co.	307	(8)
CHAPTER FIVE Liability for Failure to Warn	315	(82)
A. The Basic Duty to Warn at Time of Sale	316	(33)
1. The General Rule	316	(2)
2. No Duty to Warn of Obvious, Generally Known Risks	318	(11)
Jamieson v. Woodward & Lothrop	319	(8)
Problem Seventeen	327	(1)
To Speak or Not to Speak; Or, "Digging Your Own Grave with the Best of Intentions"	328	(1)
Problem Eighteen	329	(1)
3. No Duty to Warn of Unknowable Risks	329	(11)
Anderson v. Owens-Corning Fiberglas Corp.	329	(8)
Liability Insurance and Long-Tail, Unknowable Risks	337	(1)
Olson v. Prosoco, Inc.	338	(2)
4. Informed Choice Warnings	340	(9)
Problem Nineteen	342	(1)
Liriano v. Hobart Corp.	343	(5)
Authors' Dialogue 14	348	(1)
B. Who Must Warn Whom?	349	(6)
Persons v. Salomon North America, Inc.	349	(6)
C. The Sufficiency of the Defendant's Warning	355	(17)
Tesmer v. Rich Ladder Co.	355	(4)
Problem Twenty	359	(2)
Lewis v. Sea Ray Boats, Inc.	361	(4)
James A. Henderson, Jr. & Aaron D. Twerski, Doctrinal Collapse in Products Liability: The Empty Shell of Failure to Warn	365	(3)
Broussard v. Continental Oil Co.	368	(4)
D. Post-Sale Warnings	372	(7)
Lovick v. Wil-Rich	373	(6)
E. Special Problems with Proximate Cause	379	(14)
1. Would the Plaintiff Have Heeded an Adequate Warning?	379	(8)
Golonka v. General Motors Corp.	382	(5)
2. When the Defendant's Failure to Warn Causes Plaintiff to Suffer Harm from Another Product	387	(5)
Powell v. Standard Brands Paint Co.	387	(1)
Authors' Dialogue 15	388	(4)
3. Did the Plaintiff Suffer the Sort of Harm that an Adequate Warning Would Have Aimed at Preventing?	392	(5)
Problem Twenty-One	392	(1)
F. Other Forms of Defective Marketing	393	(4)
CHAPTER SIX Express Warranty and Misrepresentation	397	(26)
A. Express Warranty	397	(16)
1. What Is Warranted	397	(4)
Baxter v. Ford Motor Co.	398	(2)
Problem Twenty-Two	400	(1)
2. Basis of the Bargain-The Reliance Controversy	401	(12)
Cipollone v. Liggett Group, Inc.	401	(7)
Yarusso v. International Sport Marketing, Inc.	408	(4)
Note: The Implied Warranty of Fitness for Particular Purpose	412	(1)
B. Misrepresentation	413	(10)
Crocker v. Winthrop Laboratories	415	(6)
Authors' Dialogue 16	421	(1)
Note: Representations as the Mood Music for Determining Product Defect Under Existing Law	422	(1)
CHAPTER SEVEN Federal Preemption	423	(30)
A. Federal Preemption of Warning Claims	424	(13)
Cipollone v. Liggett Group, Inc.	425	(10)
Note: Drugs and Pesticides: Preemption or Not?	435	(1)
Authors' Dialogue 17	436	(1)
B. Federal Preemption of Design Defect Claims	437	(16)
Geier v. American Honda Motor Company, Inc.	439	(14)
CHAPTER EIGHT Affirmative Defenses	453	(50)
A. Conduct-Based Defenses	453	(36)
1. Background Principles	453	(9)
a. Introduction	453	(1)
b. Contributory Negligence	454	(1)
c. Comparative Fault	455	(1)
(1) Multiple Defendants	456	(1)
(a) Unit Rule	456	(1)
(b) Modified Unit Rule	456	(1)
(c) Individual Rule	457	(1)
(2) Assumption of the Risk and Last Clear Chance	457	(1)
(3) Superseding Cause	457	(1)
Barry v. Quality Steel Products, Inc., et al.	457	(5)
2. Application of Comparative Fault in Products Liability	462	(27)
a. Can Fault and Defect Be Compared?	463	(1)
(1) Manufacturing Defects: Comparing Apples and Oranges	463	(1)
(2) Generic Defects: Comparing Fault Under Risk-Utility Balancing	464	(1)
b. Should Fault and Defect Be Compared?	464	(1)
(1) Are Products Liability Cases Different?	464	(1)
Webb v. Navistar Int'l 1994 Transportation Corp.	464	(1)
Social Control of Product-Related Accidents: The Seat Belt Defense and Governmental Control of Drivers' Behavior	476	(1)
(2) The Crashworthiness Imbroglio: Should Fault Be Compared with Enhanced Injury?	477	(1)
D'Amario v. Ford Motor Company	477	(6)
(3) Should Plaintiff's Fault Be Compared with Defendant's Breach of Express Warranty?	483	(1)
(4) No Duty/Primary Assumption of Risk: Reintroducing Plaintiff's Conduct as a Total Bar	484	(1)
Andren v. White-Rodgers Co.	485	(1)
Problem Twenty-Three	488	(1)
B. Non-Conduct-Based Defenses	489	(16)
1. Time-Based Defenses	489	(9)
a. Open-Ended Time Bars	489	(1)
Authors' Dialogue 18	490	(1)
(1) Knowledge of Injury as a Trigger	491	(1)
(2) Knowledge of the Causal Connection Between the Injury and the Product as a Trigger	492	(1)
(3) Knowledge of the Defendant's Identity as a Trigger	493	(1)
b. Fixed-Period Time Bars	494	(1)
Problem Twenty-Four	495	(1)
Note: Constitutionality of Statutes of Repose	496	(2)
2. Contract-Based Defenses	498	(1)
3. Worker Compensation Barriers	498	(1)
4. Governmental Immunity	498	(1)
5. Government Contractor Defense	499	(4)
PART III Special Problem Areas	503	(146)
CHAPTER NINE Special Products and Product Markets	505	(72)
A. Component Parts and Raw Materials	505	(9)
Zaza v. Marquess & Nell, Inc.	505	(9)
Authors' Dialogue 19	513	(1)
B. Prescription Drugs and Medical Devices	514	(42)
1. Liability Based on Failure to Warn	514	(20)
a. Warning the Health Care Provider	514	(1)
Sterling Drug, Inc. v. Yarrow	516	(6)
b. Warning the Patient Directly	522	(1)
Perez v. Wyeth Laboratories Inc.	524	(10)
2. Liability for Defective Drug Designs	534	(19)
Brown v. Superior Court (Abbott Laboratories)	534	(1)
Authors' Dialogue 20	535	(9)
James A. Henderson, Jr. & Aaron D. Twerski, Drug Designs Are Different	544	(6)
George W. Conk, The True Test: Alternative Safer Designs for Drugs and Medical Devices in a Patent-Constrained Market	550	(3)
3. Pharmacists' Liability for Prescription Products	553	(3)
C. Used Products	556	(12)
1. The Tort Rules Governing Liability	556	(5)
Crandell v. Larkin and Jones Appliance Co.	556	(3)
Note: Tort and Contract-Something Old, Something New	559	(2)
2. The Role of Disclaimers in Determining Liability for Used Products	561	(7)
Problem Twenty-Five	566	(1)
Authors' Dialogue 21	567	(1)
D. Food, Nonprescription Drugs, and Cosmetics	568	(9)
1. Food Products	568	(4)
2. Nonprescription Drugs and Cosmetics	572	(5)
CHAPTER TEN Special Elements of the Plaintiff's Recovery	577	(72)
A. Recovery of Compensatory Damages	577	(2)
1. Limitations on Noneconomic Damage Awards	577	(1)
2. Modifications of the Collateral Source Rule	578	(1)
3. Reforms Allowing Periodic Payment of Damages	579	(1)
B. Recovery for Pure Emotional Upset	579	(7)
Kennedy v. McKesson Co.	581	(5)
C. Recovery for Pure Economic Loss	586	(19)
East River Steamship Corp. v. Transamerica Delaval, Inc.	587	(8)
Jimenez v. The Superior Court	595	(8)
Problem Twenty-Six	603	(1)
C. Wolfram, Modern Legal Ethics	604	(1)
D. Special Problems in Toxic Torts Litigation	605	(22)
1. Increased Risk of Future Injury	605	(5)
Mauro v. Raymark Industries, Inc.	606	(4)
2. Recovery for Emotional Upset	610	(6)
Metro-North Commuter R.R. Co. v. Buckley	610	(6)
3. Medical Monitoring	616	(11)
Bower v. Westinghouse Elec. Corp.	617	(9)
Authors' Dialogue 22	626	(1)
E. Recovery of Punitive Damages	627	(24)
1. Standard Limitations Imposed by the States	627	(9)
Wangen v. Ford Motor Co.	627	(9)
2. Federal Constitutional Control of Punitive Damages	636	(15)
State Farm Mutual Automobile Ins. Co. v. Campbell	636	(10)
Authors' Dialogue 23	646	(3)
PART IV Institutional Perspectives	649	(72)
CHAPTER ELEVEN Special Features Reflecting the Fact That Most Products Defendants Are Corporations	651	(26)
A. The General Rule of Limited Shareholder Liability (and Exceptions Thereto)	651	(17)
Nelson v. International Paint Co., Inc.	654	(7)
Problem Twenty-Seven	661	(7)
B. A Special Extension of Liability: Successor Corporations	668	(9)
Martin v. Abbott Laboratories	668	(9)
CHAPTER TWELVE Adjusting the Liability System to the Demands of a National Economy	677	(22)
A. The Patchwork Quilt of Existing State Law	677	(2)
B. Uniform Laws Approach	679	(2)
C. The New Restatement (Third) of Torts: Products Liability	681	(1)
D. Federal Legislative Solutions	681	(1)
1. Substantive Law Reform	681	(1)
2. Insurance Availability: The Risk Retention Act	682	(1)
E. Are Judicial Solutions Viable?	682	(9)
1. Federal Common Law	683	(6)
In re "Agent Orange" Product Liability Litigation	683	(6)
2. Federal Preemption of State Law	689	(1)
3. National Management of Mass Tort Litigation	689	(2)
F. Areas of Special Federal Competence	691	(8)
1. The Federal Bankruptcy System	691	(5)
Note, The Manville Bankruptcy: Treating Mass Tort Claims in Chapter 11 Proceedings	692	(4)
2. Admiralty	696	(3)
CHAPTER THIRTEEN International Perspectives on Products Liability	699	(22)
A. Foreign Products Liability Law	699	(14)
Gary T. Schwartz, Product Liability and Medical Malpractice in Comparative Context, in The Liability Maze	699	(8)
Hideyuki Kobayashi & Yoshimasa Furuta, Products Liability Act and Transnational Litigation in Japan	707	(6)
B. Does the American Liability System Put American Firms at a Competitive Disadvantage?	713	(8)
1. Effects of the American Liability System on Costs and Prices of American Products	713	(4)
2. Effects of the American Products Liability System on Product Innovation	717	(4)
Table of Cases	721	(12)
Table of Statutes and Other Authorities	733	(6)
Index	739