RUTGERS LAW SCHOOL

Products Liability -- Fall Semester, 2011

Professor Howard A. Latin

I am leaving the 2007 assignments, the most recent year I taught this course, on this web page to serve as a general syllabus describing
most products liability topics we are likely to cover this semester.  There are many core concepts and basic treatments that must be
addressed every year.  But there are also topics that are changing quite rapidly, such as regulatory preemption and the admissibility
of scientific evidence,  because of recent U.S. Supreme Court decisions or recent shifts in fundamental political positions.  I vary the
PL materials each time I teach the course to reflect recent legislation and judicial cases, current events, and student interests. 

Instead of using an expensive casebook that may not be frequently updated, I assign a wide range of materials that can be downloaded
from this website page.  Students who do not have their own computers can use the ones in the Law School's computer lab to retrieve
the assigned materials.

Tuesday, August 23, 2011:

Download the file excerpts.pdf or excerpts.doc by clicking on one of these links.  Please download the Adobe Acrobat Reader
for PDF-formatted documents from www.adobe.com if you cannot read .pdf  files now. I do not intend to provide MSWord
alternative versions in the future.

The assignment for the first class is to read and think about the issues raised by this short file, which contains partial introductions to
two of my PL articles -- on product warnings and SUV design and safety characteristics. You will be reading more from these
articles and other scholarly essays later in the semester.

The purpose of the "excerpts" file is to introduce some of the underlying political, behavioral, and ethical issues that are critically
important and sharply debated in the Products Liability field.

Should we attempt to maximize consumer safety or consumer autonomy and choice?  Should an auto manufacturer, for example,
be able to sell a very risky paper machè vehicle for a very low price as long as the dangers are clearly disclosed?

Should we hold manufacturers liable for not making products as safe as reasonably possible although the consumers may be in a
better position to use those products in a safe manner?  Consider what you know about the MacFat and MacCoffee cases
involving McDonald food products, for example.

Should consumers have to bear the injury losses when they do not follow clear product warnings, such as the Cue-Tip manufacturer's
warning never to put a Cue-Tip in your ear and the common warning on hammers not to strike any hard surfaces?

Should consumers or manufacturers bear the losses from product risks that were unknown or unknowable when the product was
marketed?  Examples include Vioxx and Phen-Fen, among many other drugs and drug combinations that arguably have produced
unexpected harmful consequences.

Should courts take the existence of product safety regulation and a variety of insurance practices into account in assigning, or not
assigning, products liability damages?

Thursday, August 25, 2011:

Download the file plbackground.zip, which contains the course materials for the next three classes, unzip the 10 cases and
documents into a folder where you can find them, and read the first 3 cases for today: Winterbottom, MacPherson, and Escola.

Please make a list of the specific arguments Justice Traynor uses to support strict liability in his concurring opinion in Escola,
and compare them against Judge Cardozo's arguments and doctrinal requirements in MacPherson.  These two cases are
among the most famous and influential judicial decisions in the history of Products Liability (and Tort) law.

Tuesday, August 30th, and Thursday, September 1st:

Read the next 5 cases in the zip file, which reflect the concurrent evolution of contract/warranty-based products liability and
Torts-based products liability indicating the evolution of tort doctrines after MacPherson, and leading to Greenman, the first
self-identified strict products liability judicial decision.

Then read Section 402A of the Restatement Second of Torts, including comments (a) to (i), and Section 2 of the Restatement
Third of Torts.  Section 402A provided the most influential early guidelines for strict products liability, though many states accepted
only parts of the recommended treatment and rejected some of its other provisions. We will frequently be referring to Section 402A
throughout the semester, so keep it readily available.

Tuesday, September 6th:  Second and Third Restatements of Torts

Read Section 402A of the Restatement Second of Torts, including comments (a) to (i), and Section 2 of the
Restatement Third of Torts.  Section 402A provided the most influential early guidelines for strict products
liability, though many states accepted part of the recommended treatment and rejected some of its other
provisions. We will be referring back to Section 402A frequently during the course of the semester, so keep
it available.

Thursday, September 8th:  Manufacturing or Construction Defects

Download plmanufacturing.zip using this link.  We will try to get through all 5 of the cases included in this
zip file on  Thursday, though the discussion of manufacturing defects will spill over into part of next Tuesday's
class.

 Tuesday, September 13th and Thursday, September 15th:  Design Defects, Foreseeable Uses/Misuses, and CET

 The cases and materials on design defect issues are much more complex than for manufacturing defects.  The first
 group of cases should be downloaded by clicking here: designcases.zip   The cases have numbers at the beginning
 that reflect the general order in which we will begin to read them.  We will consider these distinctive issues and the
 accompanying cases:

 Intended Use and Foreseeable Use including Foreseeable Misuse:  Volkswagon, Barker & Cepeda   The latter two
 cases deal with many other issues, which means you should first read them specifically for the positions they take
 on intended use or misuse.

 Consumer Expectations Test: Linegar, excerpt on safer bulletproof vests, Potter & Barker

 Risk-Utility Balancing (RUB): Cepeda, Suter, Barker & Potter

 Imputation of Knowledge or the Hindsight Test: Cepeda & Barker

 State of the Art Defense: O'Brien

 This material will take a minimum of 3 classes to cover, and likely 4 or 5.  The cases included represent several
 different design defect treatments, and you need to understand the reasons and dimensions of the conflicts among
 different state courts and PL positions.

 Tuesday, September 20th and Thursday, September 22th:  Risk-Utility Balancing and Imputation

 The central topic for this week is a continuing discussion of Risk-Utility Balancing.  Make sure you carefully read
 the 7 "Wade" Factors in the Cepeda case and the five similar factors in Barker.

 We will also discuss "imputation" or the "hindsight test," which are part of how the RUB is conducted in a product
 liability case.  The best explanation for imputation is contained in the 3 pages in Cepeda just before the Wade factors.

 Tuesday, September 27th and Thursday, September 29th:  RUB and the State of the Art Defense

 Review of the RUB Process, followed by a discussion of the "State of the Art" defense featuring the O'Brien case
 at the end of the previously assigned materials. Also, read section 2 of the Restatement 3d again.

 Tuesday, October 4th and Thursday, October 6th:  SUV Discussion -- Presenting a Design Defect Case

 Download Professor Latin's article on SUVs.  The topics will be covered in roughly the same order as they appear
 in the essay--sources of products liability "duty," crashworthiness, bystander liability, legal custom, and admissibility
 of evidence on design defects and reasonable alternative designs.

 Tuesday, October 11th and Thursday, October 13th:  Modifications & NJ Products Liability "Reform" Statute

We will begin with a discussion of two cases that involved modifications or alterations (synonyms) of the product design
after the product has been marketed, and how these cases fit into the RUB process.  Then we will devote most of these
two classes to the 1987 NJ Products Liability Statute.  Please download the NJ statute and subsequent cases from
this link.  The sequence of the materials is numbered in the order we will discuss them, and we will spend most of the
class time on the NJ statutory provisions (up to the design defect section) and on the Roberts case.

Tuesday, October 18th:  Warning Defect Cases and Materials

Download and read the materials in PLWarnings.zip  These materials are sequentially numbered--the first 3 deal with
"garden variety" warnings cases in which the defendant did know or should have known about the product risks.

Tuesday, October 25th:  Warning Defect Cases in which the Risks are Unknown

Read the Beshada and Feldman cases and my short article excerpt.  These materials deal with controversial cases
in which the defendants contend that they did not know, and could not have known, about the risks presented by
their products after they were put into the stream of commerce.

Thursday, October 27th:  Warning Defects, Causation, and Comparative Negligence

Read the section in  the 1987 NJ PL Act that deals with product warnings and the last two cases from the previous
warnings handout. These cases deal with the interplay between warning defects and proof of causation requirements.
Then, we will address the relatively easy subject of contributory and comparative negligence in products liability
law.  Download and read the cases in CompNegl.zip.  Contrast the Daly and Suter opinions carefully and also read
Comment N of the Restatement 2d.

Tuesday, November 1st:  Causation and Post-Sale Duty to Warn

Read the Coffman and Wyeth cases on the Heeding Presumption.  Read the NJ PL Statute on warnings and
specifically on the post-sale duty to warn.  Also read the last part of the Feldman decision in the warnings
handout and read the Dixon case on the post-sale duty.
 

Thursday, November 3d:  Contributory and Comparative Negligence

Read Comment N in Section 402A of the the Restatement of Torts Second.  Then download and read the cases
in CompNegl.zip.

Tuesday, November 8th and Thursday, November 10th:  The Admissibility of Scientific Evidence

This is one of the most important topics in Tort Law and Products Liability Law because the great majority
of products-related cases require scientific or technical evidence, and its admissibility has become a major
hurdle for the great majority of plaintiffs' cases.  Carefully examine the recent federal court requirements
and then compare the standards in the three federal cases with the admissibility treatments in the two New
Jersey Supreme Court cases.  These cases are in the handout .
 

Tuesday, November 15th and Thursday, November 17th:  Preemption of State Products Liability Actions

We are first going to discuss the Bessemer case and compare the admissibility of scientific and technical evidence
under the Federal Rules of Evidence in contrast to their admissibility under NJ law.  In addition to the NJ case, read
the short essay at the end of the handout.

The remainder of the Tuesday class and all of Thursday's and next Tuesday's classes will be devoted to the crucial
topic of federal preemption.   Download the first preemption zip file from here and read the cases and materials in the
order they are numbered.  The issue of federal regulations preempting state tort actions has been especially important
under current FDA warnings approval requirements that apply to all prescription drugs and medical devices.


Tuesday, November 22d:  Recent U.S. Supreme Court Preemption Cases

The second preemption download contains four recent U.S. Supreme Court decisions.  These cases will demonstrate
how confused, ambiguous, and important this doctrine is, and how heavily affected it is by the incompatible ideologies
of the nine Justices.

Tuesday, November 29th:  Punitive Damages

Read the several cases & N.J. statute in this zip file and pay particular attention to the U.S. Supreme Court's State
Farm and BMW decisions.  The BMW excerpt does not include several concurring and/or dissenting opinions in order
to limit the length of the text.

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************************The following assignments are from 2007**********************************
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Thursday, August 23, 2007:

Download the file excerpts.pdf or excerpts.doc by clicking on one of these links.  Please download the Adobe Acrobat Reader for PDF formatted documents from www.adobe.com if you cannot read .pdf files now.  I do not intend to provide MSWord alternative versions in the future.

The assignment for the first class is to print, read, and think about the issues raised by this short file, which contains partial introductions to two of Professor Latin’s articles–on product warnings and SUV design characteristics. You will be reading more from these articles and others later in the semester.

The purpose of the "excerpts" file is to introduce some of the underlying political, behavioral, and ethical issues that are critically important and sharply debated in the Products Liability field.

Should we attempt to maximize consumer safety or consumer autonomy and choice?  Should an auto manufacturer, for example, be able to sell a very risky paper machè vehicle for a very low price as long as the dangers are clearly disclosed?

Should we hold manufacturers liable for not making products as safe as reasonably possible although consumers may be in a better position to use those products in a safe manner?  Consider what you know about the MacFat and MacCoffee cases, for example.

Should consumers or manufacturers bear the losses from product risks that were unknown or unknowable when the product was marketed?  Examples include Vioxx and Phen-Fen, among many drugs and drug combinations that arguably have produced unexpected harmful consequences.

Should courts take the existence of product safety regulation and a variety of insurance practices into account in assigning (or not assigning) products liability?

Tuesday, August 28th:

Download the file plbackground.zip, which contains the course materials for the next three classes, unzip the 10 cases and documents into a folder where you can find them, and read the first 3 cases for today:  Winterbottom, MacPherson, and Escola.

Please make a list of the specific arguments Justice Traynor uses to support strict liability in his concurring opinion in Escola, and compare them against Judge Cardozo's arguments and doctrinal requirements in MacPherson.  These two cases are among the most famous and influential in Products Liability (and Tort) law.

Thursday, August 30th:

Read the next 5 cases in the zip file, which reflect the concurrent evolution of contract/warranty-based products liability and products liability based on the evolution of tort doctrines after MacPherson, leading to Greenman, the first self-identified strict products liability case.

Tuesday, September 4th:

Read Section 402A of the Restatement Second of Torts, including comments (a) to (i), and Section 2 of the Restatement Third of Torts.  Section 402A provided the most influential early guidelines for strict products liability, though many states accepted part of the recommended treatment and rejected some of its other provisions. We will be referring back to Section 402A frequently during the course of the semester, so keep it available.

Thursday, September 6th and September 8th:  Manufacturing and Construction Defects

Download plmanufacturing.zip using this link.  We will try to get through all 5 of the cases included in this zip file on
Thursday, though the discussion of manufacturing defects will spill over into part of next Tuesday's class.

 Tuesday, September 13th and Thursday, September 15th: Design Defect and Foreseeable Uses/Misuses

 The cases and materials on design defect issues are much more complex than for manufacturing defects.  The first group
 of cases should be downloaded by clicking here: designcases.zip   The cases have numbers at the beginning that reflect
 the general order in which we will begin to read them.  We will consider these distinctive issues and the accompanying
 cases:

 Intended Use and Foreseeable Use including Foreseeable Misuse:  Volkswagon, Barker & Cepeda   The latter two cases
 deal with many other issues, which means you should first read them specifically for the positions they take on intended
 use or misuse.

 Consumer Expectations Test: Linegar, excerpt on safer bulletproof vests, Potter & Barker

 Risk-Utility Balancing (RUB): Cepeda, Suter, Barker & Potter

 Imputation of Knowledge or the Hindsight Test: Cepeda & Barker

 State of the Art Defense: O'Brien

 This material will take a minimum of 3 classes to cover, and likely 4 or 5.  I am not going to list each class separately,
 at least until I see how much we achieve in Tuesday's class.  The cases included represent several different design
 defect treatments, and you need to understand the reasons and dimensions of the conflicts among courts and PL
 decisions.

 Tuesday, September 20th and Thursday, September 22d:  The Risk-Utility Balancing Process

 The central topic for this week is Risk-Utility Balancing.  Make sure you carefully read the 7 "Wade" Factors in the
 Cepeda case and the five similar factors in Barker.

 We will also discuss "imputation" or the "hindsight test," which are part of how the RUB is conducted in a product
 liability case.  The best explanation for imputation is contained in the 3 pages in Cepeda just before the Wade factors.

   Tuesday, October 16th and Thursday, October 18th:

    Warning Defect Cases and Materials:  Download and read the materials in PLWarnings.zip  These materials are
   sequentially numbered--the first 3 deal with "garden variety" warnings cases in which the defendant did know or
   should have known about the product risks.

   The next three entries in PLWarnings.zip focus on the legal treatments of product risks that were arguably unknown
   at the time the products were marketed.  Also read the Restatement of Torts Second, Section 402A, Comment J;
   the Restatement of Torts Third, Section 2 on Warning Defects; and the 1987 NJ Products Liability Statute provision
   on Product Warnings--all of which have been previously distributed.

   The final two cases in the zip file deal with the interplay between warning defect and proof of causation requirements
   in Products Liability law.  We probably will not reach these cases and the 1987 New Jersey PL Statute until the
   following week.

    Tuesday, October 23d and Thursday, October 25th:

    Treatment of Unknown Risks:  We will continue discussing Warning Defect cases, with a focus on instances in
    which the product risks were arguably unknown at the time the manufacturer marketed the product.  Please read
    the Beshada and Feldman cases very carefully and then my short discussion of the "Tragedy of Beshada."  Also,
    bring the 1987 NJ Statute to class after reading the "warning defect" provision--we will go over it in detail to see
    what changes it makes in previous NJ common law and how important those changes may be.  Then read the
    Dixon warning case, which was decided after the statute was adopted, by downloading the file from here.

    Proof of Causation in Warning Defect Cases:  Read the last two cases in the warnings handout previously
    distributed.

    Tuesday, October 30th and Thursday, November 1st:
 

     Heeding Presumption:  First read the Coffman & Wyeth cases distributed at the end of the previous zip file
     handout.  We will spend only a little time on this warning causation treatment.  Does it make sense to you?

     Admissibility of Scientific Evidence on Causation Issues:  Download the materials on scientific evidence from
     this web site link.  There are 3 U.S. Supreme Court cases (Daubert, Kumho & Joiner), and three contrasting New
     Jersey Supreme Court cases (Rubanick & Bessemer).  Please read them in the same order they appear in the file.

     Tuesday, November 6th and Thursday, November 8th:

       On Tuesday we will go through the two New Jersey Supreme Court cases previously assigned on the admissibility
      of scientific evidence.  On Thursday, we will address the relatively easy subject of contributory and comparative
      negligence in products liability law. Download and read the cases in CompNegl.zip  Please contrast the Daly and
      Suter opinions carefully and also read Comment N of the Restatement 2d.

      Tuesday, November 15th and Thursday, November 17th:  Recent Preemption Cases

      Download the preemption zip file from here and read the cases and materials in the order they are numbered.  The
      issue of federal regulations preempting state Tort actions has been especially important under Bush Administration
      who want to prevent or impede as many suits against businesses as possible.

        Tuesday, November 20th:  Punitive Damages

       Punitive Damages:  Read the cases & statute in this zip file and pay particular attention to the Supreme Court's
       State Farm decision.