Strategies Identify elements and match them to facts

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just a causal question (burn must be cause of cancer)

Collateral Source Rule: Jury can’t know if Π has insurance that will cover the injury.

Insofar as P gets tort award for med. Expenses, insurer has right of subrogation to go after ∆ for payment of med. Bills  loss lies w/ tortfeasor as opposed to insurance
Some jurisdictions have abolished collateral source rule
1. Why should P get a windfall?
2. Problematic nature: NOT reducing any costs in society, just shifting loss onto insurance company: Raise insurance rates, Bad incentive properties, Bad distributive properties

“Eggshell skull rule”  Take the victim as I find him. Appropraite in either foreseeability or directness jurisdiction

Calculating Damages and Judicial Review
1. Pain and suffering  hard to put figure on it (“guestimate”)
2. Remittitur: When jury award shocks the conscience Judge offers P choice of lower award or new trial. Eliminating Remittitur would make judge sit through new trial; no easy way out
3. Additur: Corollary: judges offers D to pay higher damages or new trial
  1. USSC  this is against Amend VII re-examination cause, but remittitur is OK
  2. From P’s perspective, new trial may mean not getting anything

Wrongful Death Cases
1. Common Law Rule  personal cause dies with the person
2. Worst possibility injury has no liability whatsoever, but serious injury in compensable.
3. Survivorship  damages up to death (brought on behalf of decedent, damages paid to estate),
  1. Example  decedent lives after accident and incurs expenses, pain and suffering up until the point of death.
  2. Cases in which there was a brief period of time when decedent knew of impending injury, and was distressed because of this, e.g. airplane crashes
4. Wrongful Death
  1. economic loss  Loss of financial support
  2. Loss of consortium:
    1. Early on  husband has rights to wife’s services. Economic damages when he can’t have access anymore.
    2. Today  broader view of damages: love, companionship,etc.
    3. Body of law reflects confusion in tort law about damages. Ambivalence leads to odd formulations of rules, e.g. love is an economic loss
5. Actions are derivative of decedent’s actions against ∆.
6. Defenses will also apply to wrongful death claim.
7. Wrongful Death and Survivorship are Legislative remedies: no action at CL

Punitive Damages
1. Factor in assigning punitive damages:Malice
  1. Actual malice
  2. Wanton disregard
  3. Reckless disregard
  4. NOT gross negligence (in this jurisdiction)
2. Justification: force P to respect D’s rights
  1. Deterrence  connection trespass cases
  2. Forces moving B
  3. Compensation of extra safety for non-compensable injuries
  4. circumstances in which compensatory will be insufficient to protect the right

Products Liability

In General
1. Rationale: best protection of consumer interests; no Interpersonal conflicts of interest
2. Cost Benefit Reasoning
  1. Fairness corresponds to efficiency
  2. Both costs and benefits are internalized by consumer
    1. B  higher product price (cost to consumer)
    2. PL  Greater industry (consumer pays for injuries
  3. B >PL  consumer would prefer less costly risk
  4. B < PL  Consumer prefers safer product at higher price
3. Prod Liability is a fairly new field of law (created in 1960’s) and has become most important form of regulation to business created by tort law

Escola (Coke bottle case) concurrence and Strict Liability
1. McPhaerson eliminated need for privity
2. Notion of implied warranty - product fit for ordinary use
  1. not expressly written in contract
  2. implied by transaction itself  putting food onto market place is making a representation that food is fit for consumption
3. Tort rather than contract doctrine
  1. Buyer not in a position to off-set danger of risk
  2. Security interest  relying on work of seller; foreseeable that someone besides initial buyer would use/be harmed by product
  3. Fact that defect causes physical injury is what creates the tort problem (reliance interest)
4. Strict Liability/evidentiary rationale
  1. Quality control process across the board – not a particular precaution across the board  system problem
  2. evidentiary burden  if we require seller to prove negligence on these grounds, he will never win.
5. Entire court adopts Traynor’s logic in Greenman (power tool case).

Restatement Second §402A
1. P has to show:
  1. that there is a defect
  2. Defendant sold product
  3. Defect had to have been present at time D sold it  no substantial change since
  4. question about “unreasonably dangerous
2. Originally drafted for food products, but extended in light of Greenman

Cronin  Hasp breaks on bread truck. Does away with unreasonably dangerous requirement.
1. Don’t want clever lawyers making distinctions between design and manufacturing defects
2. “unreasonably dangerous” happens regardless of care exercised
3. If you stick with “unreasonably dangerous” requirement, then you’ve turned back to a negligence standard – there is no separate meaning for SL
4. Attempt to focus more on consumer expectations
Strict Liability won’t do the trick for certain products cases (e.g. airbags). Hard to show that a care w/o airbag is malfunctioning
Justification for Strict Products Liability
1. make manufacturer internalize the costs, then it’s on manufacturer to determine whether or not it will take risks.
2. Once we move liability outside of foreseeable risks, we will no longer be influencing safety decisions  liability becomes form of providing insurance
  1. Consumer would prefer insurance from other sources
    1. Developed insurance markets today
    2. High costs, long time, and uncertainty of litigations

Manufacturing defect 
1. defect in construction - compare with prototype/product spec
2. deviation from intended design makes seller strictly liable
3. Manufacturing defects and circumstantial evidence

Must prove:

kind of injury that would ordinarily occur as a result of defect; and
was not, solely the result of causes other than product defect
probability of defect causation >50%
Link defect to defendant
(compare to Res Ipsa)

Evidence is often destroyed (evidentiary problem and SL)

Design defects
1. existing system wasn’t as good as alternative system proposed as plaintiff
2. IF P can prove that alternative design is reasonable, then manufacturer should have adopted this design instead of existing design
  1. existing design imposes unreasonable risk
  2. P will propose alternative design and prove design is reasonable
3. Often involve complex engineering decisions – is the jury a competent decision maker?
4. Scope of liability expands dramatically  Design defect applies to entire product line
5. Much greater stakes coupled with harder inquiry
6. Majority approach (NOT California) Rely on risk/utility test
  1. Unreasonably dangerous sticks and matters for design defect cases
  2. Risk utility ends up being a laundry list of factors
    1. Safety of alternative designs
    2. Feasibility of alternative designs
    3. Other products adopted
    4. Cost-effectiveness of current design
  3. Captured in B
    (e.g. airbags)
    
    B - -increased costs of including airbags (fixed and marginal costs); additional risks created by airbags (children hurt); decreased functionality (guard on machine makes it harder, causes jams)
    
    PL = reduction in risk given air bags
  4. Burden shifting - ∆ must prove that design is not defective in risk/utility test – not followed by most courts
    
    move in direction of SL
    
    No practical effect on Π w/ good evidence: Π with good evidence would not want to save evidence for rebuttal. Doesn’t want to allow ∆ to set the agenda and anchor the jury where it wants to
  5. Shortcomings: juries don’t like to hear about companies trying to save money – should be framed in terms of consumer expectations: consumers desire cost/benefit

Consumer expectation test

foundations in implied warranty

departure from what ordinary consumer would expect

Develops as minimum standard in later cases

Shortcomings 

Information gap Consumer may not know how safe the product could be/should be – expectations not always as demanding as they should be

Reliance on expectations will not lead to safe products (manufacturers won’t add safety features unless consumers are willing to pay for it)

Confusion of Duty and defect: To say “ordinary consumer expectations” completely ignores that it’s those expectations which make for duty in the first place. If those expectations are satisfied, no duty exists. When frustrated, there is duty. Can’t say duty and defect (breach) are defined by same element.

CA Rule: Consumer expectation test when jury is able to identify defect without expert testimony

Reasonable expectations  lead us back to risk/utility

NOTE: Both tests focus on nature of product, not conduct of ∆

Comment K in Restatement

Addresses unavoidably unsafe products

Don’t SL for a certain category of construction/manufacturing defects:

Modern example is contaminated blood

A lot of people got AIDS because of contaminated blood

Would result in SL for sellers

Blood banks would close

Some products are essential to public health and safety. Due to common defects, SL will disrupt products market. The world will be less safe. We’ll fall back on negligence liability

Warning Defect

manufacturer failed to warn consumer of the dangers of product

Based on lack on knowledge  ordinary consumer doesn’t know about the risk

Remedy for informational problem is to force maker to provide the information; analog of informed consent

Turns on Causation:

Π was unaware of risk

Π would have heeded warning

Requirement s for warning:

Foreseeable risks

Not commonly known

Would reduce the risk of harm to consumer

Warning must be adequately designed (most significant warning must be up front)

Will lead to better decision-making by consumers

Limited by information costs associated with too much warning 

If we require warning for everything, people will stop reading warnings altogether

Crowding out effect – each warning makes warnings less effective over all

Duty to warn: Does obligation to warn depend on knowledge at time of injury or at time of trial? Should there be SL or negligence?

Rule: Π has to show that manufacturer knows about risk, and if risk wasn’t known, manufacturer should have known about it!

Effect of strict liability  liable for failure to warn even if manufacturer didn’t know about side effects.

evidentiary problem  Consumer can’t prove what’s a reasonable risk

Once you learn about risks, you can warn and reduce liability costs

Chain of events set off by SL: Strong incentive to test  Testing discovers carcinogens  Warnings/don’t release drugs  Safer world

Insurance problem

Risks are unknown and therefore uninsurable

It will be prohibitively costly to get this safety effect (will increase product prices by so much that it’s not worth it)

Learned intermediary Doctrine  Any time that decision maker is somebody besides Π, we focus on warning’s effect of behavior of decision maker (medical context

Motus v. Pfizer - Π loses because warning wouldn’t have affected doctor’s behavior

Hot issue: Will advertising overwhelm the learned intermediary rule?

Drug advertising to consumer leads patients to ask doctor for specific drugs

Doctors are now getting request from patients for specific drugs.

Over-promoting the drug implies that consumers are active participants in the process, so you have to warn them, too.

Heeding Presumption  Court presumes that Π would have read and heeded the warning.

shifts burden of proof to ∆

Presumption doesn’t mean that Π wins (not SL)

In Motuss,, heeding presumption wouldn’t work  ∆ could prove that Π woldn’t have acted differently. ∆ would just get evidence that Π would not have read warning.

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