RUTGERS LAW SCHOOL

Products Liability -- Fall, 2007

Professor Latin

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:  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 11th and Thursday, September 13th:

 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 18th and Thursday, September 20th:

  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, September 25th:

  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.

  Thursday, September 27th:

  Download Professor Latin's article on SUVs (by clicking this link) and read the first half, through
  page 194.  Focus on the "duty" and legal treatment issues described in this half of the article.

   Tuesday, October 2d and Thursday, October 4th:

   These classes will cover the material in 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 9th and Thursday, October 11th:

   Design Defect in New Jersey after the 1987 Products Liability statute:  Please download the statute and later cases
   from this link.  The sequence of the materials is numbered in the order we will discuss them, and we will spend the
   most class time on the statutory provisions (up to the design defect section) and the Roberts case.

   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 13th and Thursday, November 15th:

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

       Tuesday, November 27th and Thursday, November 29th:

       Tort Reform:  Please download and read two tort reform articles and one newspaper story for next Tuesday's class.
      

       On Thursday, the last class of the semester, we will have a review session in which students must ask specific questions
       about the issues and materials we covered during the semester.  The student questions will be covered in the same order
       as the assignments presented in the syllabus.