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Welcome to Products Liability!

I strongly recommend that you create case briefs in the format specified.

Products Liability Generally

Class 01 (Thursday, January 7)

Class 02 (Monday, January 11)

1. Silivanch v. Celebrity Cruises, Inc., 171 F. Supp. 2d 241 (S.D.N.Y. 2001)

Class 03 (Tuesday, January 12)

1. Products liability theories
2. After you have read this introduction, (a) carefully organize what you have already learned, in your other courses, about these theories and (b) briefly research any concepts that are still unfamiliar.

The Development of Strict Products Liability

Class 04 (Thursday, January 14)

1. Albert L. Clough, The Question of Axles, The Horseless Age (November 6, 1901) [1]
2. MacPherson v. Buick Motor Co., 111 N.E. 1050 (N.Y. 1916)
3. Gregory Travis, How the Boeing 737 Max Disaster Looks to a Software Developer, IEEE Spectrum (April 18, 2019) [2]

Class 05 (Tuesday, January 19)

1. Escola v. Coca Cola Bottling Co., 140 P.2d 107 (Cal. Ct. App. 1943)
2. Escola v. Coca Cola Bottling Co., 150 P.2d 436 (Cal. 1944)
3. Henningsen v. Bloomfield Motors, Inc., 161 A.2d 69 (N.J. 1960)
4. Greenman v. Yuba Power Prod., Inc., 377 P.2d 897 (Cal. 1963)

Class 06 (Thursday, January 21)

1. Restatement (Second) of Torts § 402A (1965) (including the comment)
2. Restatement (Second) of Torts § 402B (1965) (including the comment)
3. Restatement (Third) of Torts: Products Liability § 1 (1998) (including the comment)
4. Restatement (Third) of Torts: Products Liability § 2 (1998) (excluding the comment)

The Scope of Strict Products Liability

NEXT YEAR ADD THE DISTRICT COURT OPINION AND ANY RECENT SUBSEQUENT OPINIONS!!!! Class 07 (Monday, January 25)

1. Oberdorf v. Amazon.com Inc., 930 F.3d 136 (3d Cir. 2019)
2. Oberdorf v. Amazon.com Inc., 936 F.3d 182 (3d Cir. 2019)
3. Oberdorf v. Amazon.com Inc., 818 F. App'x 138 (3d Cir. 2020)
4. Oberdorf v. Amazon.com, Inc., 237 A.3d 394 (Pa. 2020)
5. Amazon.com Conditions of Use (May 21, 2018) [3]

Class 08 (Tuesday, January 26)

1. Recall Restatement (Second) of Torts § 402A comment f (1965)
2. Iowa Code Ann. § 613.18
3. Council Directive 85/374/EEC [4]
4. Prepare arguments

Class 09 (Thursday, January 28)

1. Torres v. City of Madera, No. CIVFF02-6385AWILJO, 2005 WL 1683736 (E.D. Cal. July 11, 2005)
2. Torres v. Taser Int'l, Inc., 277 F. App'x 684 (9th Cir. 2008)
3. Menkes v. 3M Co., No. CV 17-0573, 2018 WL 2298620 (E.D. Pa. May 21, 2018)

Class 10 (Monday, February 1)

1. Devin N. Perkins et al., E-Waste: A Global Hazard, Annals of Global Hazard, Annals of Global Health (2014) [5]
2. European Commission, Ship recycling: Reducing human and environmental impacts (2016) [6]
3. In re Old Carco LLC, 587 B.R. 809 (Bankr. S.D.N.Y. 2018)
4. Timothy B. Lee, The Heartbleed Bug, Explained, Vox (May 14, 2015) [7]

NEXT YEAR ADD R3D SECTION 8 (SELLERS OF USED PRODUCTS)

Manufacturing Defects

Class 11 (Tuesday, February 2)

1. Welge v. Planters Lifesavers Co., 17 F.3d 209 (7th Cir. 1994)
2. Recall Restatement (Second) of Torts § 402A comment f (1965)
3. Recall Restatement (Third) of Torts: Products Liability § 2(a) (1998)
4. Restatement (Third) of Torts: Products Liability § 3 (1998)
5. Restatement (Third) of Torts: Products Liability § 7 (1998)
6. McKenzie v. S K Hand Tool Corp., 650 N.E.2d 612 (Ill. 1995)
7. Bureau of Transportation Statistics, Average Age of Automobiles and Trucks in Operation in the United States [8]

Design Defects

NEXT YEAR: DEGRADATION AND DETERIORATION; GRACEFUL DEGRADATION; FAIL-SAFE; DO NOT FAIL CATASTROPHICALLY -- IN BOTH DESIGN AND WARNING

Class 12 (Monday, February 8)

1. Calles v. Scripto-Tokai Corp., 864 N.E.2d 249 (Ill. 2007)
2. Gen. Motors Corp. v. Farnsworth, 965 P.2d 1209 (Alaska 1998)

Class 13 (Tuesday, February 9)

1. Batts v. Tow-Motor Forklift Co., 978 F.2d 1386 (5th Cir. 1992)
2. Sperry-New Holland, a Div. of Sperry Corp. v. Prestage, 617 So. 2d 248 (Miss. 1993)
3. Miss. Code. Ann. § 11-1-63
4. Smith v. Mack Trucks, Inc., 819 So. 2d 1258 (Miss. 2002)

THIS IMPLICATES OPEN AND OBVIOUS DANGERS

Class 14 (Thursday, February 11)

1. Barker v. Lull Eng'g Co., 573 P.2d 443 (Cal. 1978)
2. Soule v. Gen. Motors Corp., 882 P.2d 298 (Cal. 1994)

Class 15 (Monday, February 15) SKIPPED: Leichtamer v. Am. Motors Corp., 424 N.E.2d 568 (Ohio 1981) -- SKIP THIS CASE??? It's about consumer expectations

1. Nesselrode v. Exec. Beechcraft, Inc., 707 S.W.2d 371 (Mo. 1986)
2. What does South Carolina do?
3. What does another state of your choice do?
4. IDENTIFY FACTS FOR WHICH THE CHOICE OF APPROACH IS OUTCOME-DETERMINATIVE
5. David G. Owen, Design Defects, 73 Mo. L. Rev. 291 (2008) [9] (excluding footnotes)

USE SOME HYPOS TO MAKE THESE DIFFERENCES CONCRETE!! USING THESE FACTS, ARGUE FOR THE PLAINTIFF / FOR THE DEFENDANT. NOW CHANGE THE FACTS.... INCLUDE THIS IN MY SLIDES: "We hold today that the exclusive test in a products liability design case is the risk-utility test with its requirement of showing a feasible alternative design. In doing so, we recognize our Legislature’s presence in the area of strict liability for products liability. In 1974, our Legislature adopted the Restatement (Second) of Torts § 402A (1965), and identified its comments as legislative intent. S.C.Code Ann. §§ 15–73–10–30 (2005). The comments in section 402A are pointed to as the basis for the consumer expectations test. Since the adoption of section 402A, the American Law Institute published the Restatement (Third) of Torts: Products Liability (1998). The third edition effectively moved away from the consumer expectations test for design defects, and towards a risk-utility test. We believe the Legislature’s foresight in looking to the American Law Institute for guidance in this area is instructive. The Legislature has expressed no intention to foreclose court consideration of developments in products liability law. For example, this Court’s approval of the risk-utility test in [a previous case] yielded no legislative response. We thus believe the adoption of the risk-utility test in design defect cases in no manner infringes on the Legislature’s presence in this area. Branham v. Ford Motor Co., 390 S.C. 203, 220 (S.C. 2010)." What should a state do?

USE ALL THREE TERMS TO REFER TO THE WADE-KEETON / HINDSIGHT / IMPUTED KNOWLEDGE TEST

Class 16 (Tuesday, February 16) For each of our cases to date:

1. Consider which party would benefit from an examination of alternative designs
2. Identify at least one alternative design
3. Argue that this alternative design (a) would have prevented or lessened the plaintiff's harm and (b) would not have prevented or lessened the plaintiff's harm
4. Argue that this alternative design (a) is reasonable and (b) is not reasonable

including subsequent remedial measures

Class 17 (Thursday, February 18) Risk, foreseeability, Wade-Keeton, time, and state of the art

1. Recall Gen. Motors Corp. v. Farnsworth, 965 P.2d 1209 (Alaska 1998)
2. Andrew Sheldon, A Seat Belt History Timeline (November 13, 2020) [10]
3. Grover v. Eli Lilly & Co., 591 N.E.2d 696 (Ohio 1992)

ADD ANOTHER LACK-OF-FORESEEABILITY CASE??? OR A CASE THAT EXPRESSLY REJECTS THE HINDSIGHT/WADE-KEETON RULE???

Class 18 (Monday, February 22) Contrast with the preemption we saw in Oberdorf (and will discuss in the affirmative defenses) Regulatory and private standards The T.J. Hooper, 60 F.2d 737 (2d Cir. 1932) Ruffiner v. Material Serv. Corp., 116 Ill. 2d 53 (1987) Kim v. Toyota Motor Corp., 424 P.3d 290 (2018) https://www.alec.org/model-policy/regulatory-compliance-congruity-with-liability-act/

Class 19 (Thursday, February 25) Cost-benefit analysis -Pinto, Pinto Madness -Why rulemaking is inadequate and slow (Policy Integrity reading?) -value of life FIND MY PREVIOUS ASSIGNMENT ON ALL THIS!!! IN TECH LAW VALUE-OF-LIFE? TRANSP LAW? INCLUDE ANDERSON V. GM!!! Ivey memo INCLUDE PINTO VIDEOS - THE HORSE AD AND THE EXPLOSION

Information Defects

Class 20 (Monday, March 1)

1. Olson v. Prosoco, Inc., 522 N.W.2d 284 (Iowa 1994)
2. Nowak By & Through Nowak v. Faberge, U.S.A., Inc., 812 F. Supp. 492 (M.D. Pa. 1992)
3. Mason v. SmithKline Beecham Corp., 596 F.3d 387 (7th Cir. 2010)

Class 21 (Tuesday, March 2) Foreseeability of Risks

1. Beshada v. Johns-Manville Prod. Corp., 447 A.2d 539 (N.J. 1982)
2. Feldman v. Lederle Labs., 97 N.J. 429, 479 A.2d 374 (1984)

Class 22 (Thursday, March 4) Form

1. Roman v. Sprint Nextel Corp., No. 12-CV-276 VEC, 2014 WL 5870743 (S.D.N.Y. Nov. 13, 2014)
2. Amanda J. Pooley et al., Social Referencing “Mr. Yuk”: The Use of Emotion in a Poison Prevention Program, Journal of Pediatric Psychology (2010) [11]
3. Ramirez v. Plough, Inc., 6 Cal. 4th 539 P.2d 167 (1993)

Moved to cause-in-fact: Henry v. Gen. Motors Corp., 60 F.3d 1545 (11th Cir. 1995)

1. 40 C.F.R. § 191.14(c)

[nuclear semiotics]

Class 23 Bulk Suppliers, Crowdsourcing, and the Communications Decency Act

1. Macrie v. SDS Biotech Corp., 267 N.J. Super. 34, 630 A.2d 805 (App. Div. 1993)
2. Christopher Henry, Death by Dicta: The Life of The Sophisticated User Doctrine in South Carolina Products Liability Law, 69 S.C. L. Rev. 1039

NEXT TIME - INCLUDE DUPONT (SEE 2019 NOTES - CLASS13 OUTLINE)??? move this to cause-in-fact? ....

Post-Sale Obligations

Class 24

1. Lovick v. Wil-Rich, 588 N.W.2d 688 (Iowa 1999)
2. Bryant Walker Smith, Proximity-Driven Liability ....

Tesla OTA updates

Cause-in-Fact

Class 25

1. Johnson v. Am. Standard, Inc., 43 Cal. 4th 56, 179 P.3d 905 (2008)
2. Maia Szalavitz, 10 Ways We Get the Odds Wrong, Psychology Today (January 1, 2008), psychologytoday.com/us/articles/200801/10-ways-we-get-the-odds-wrong
3. Eric Horowitz, Why Are People Bad at Evaluating Risks?, Psychology Today (March 1, 2013), psychologytoday.com/us/blog/the-inertia-trap/201303/why-are-people-bad-evaluating-risks
4. Recall Henry, Death by Dicta
5. Analyze cause-in-fact for each claim in case you have read so far (with particular focus on reasonable alternative design).....

Henry v. General Motors Corp., 60 F.3d 1545 (11th Cir. 1995)

next time: maybe add Kovach v. Caligor Midwest, 913 N.E.2d 193, 198 (Ind. 2009) (heeding presumption -- although it arose well in conjunction with discussion of illiteracy and causation)

Scope of Liability

Class 26 (finish up cause-in-fact and do scope of liability -- see PL draft chapter) NEED TO FULLY ADDRESS MISUSE SOMEWHERE -- AND EXPLORE HOW IT CONNECTS TO THE EXISTENCE OF A DEFECT, TO SCOPE OF LIABILITY, AND TO THE AFFIRMATIVE DEFENSES

Kearney v. Philip Morris, Inc., 916 F. Supp. 61 (D. Mass. 1996) Control Techniques, Inc. v. Johnson, 762 N.E.2d 104 (Ind. 2002) Litowsky v. Asco Power Techs., L.P., 4 F. Supp. 3d 328 (D. Mass. 2014)

Nesselrode v. Exec. Beechcraft, Inc., 707 S.W.2d 371 (Mo. 1986)

an occasional catch-22

• danger isn't foreseeable --> outside scope?
• danger is foreseeable --> open and obvious?

Defenses

contrast affirmative defenses with "negating defenses" Class 28 Conduct-Based: REOTT V. ASIA TREND, INC., 618 Pa. 228 (Penn. 2012) ILIADES V. DIEFFENBACHER NORTH AMERICA 501 Mich. 326 (Mich. 2018) (South Carolina case on comparative fault vis-a-vis SPL) -- or else WHITEHEAD V. TOYOTA MOTOR CORP. 897 S.W.2d 684 (Tenn. 1995) -- debate this in the next class? Also discuss crashworthiness here!!! STANDARD HAVENS PRODS. V. BENITEZ 648 So.2d 1192 (Florida 1995)

NEXT TIME: INCLUDE ***ALL*** WICKERSHAM OPINIONS (I.E., ALSO 2019 WL 3311057 AND Wickersham v. Ford Motor Co., No. 9:13-CV-1192-DCN, 2017 WL 3783122 (D.S.C. Aug. 30, 2017) AND Wickersham v. Ford Motor Co., 738 F. App'x 127, 136 (4th Cir. 2018) -- this helps clarify the proximate cause discussion

Class 29 (finish conduct-based)

Class 30

Preemption

- SEE OUR PREVIOUS CASES DISCUSSING PREEMPTION!

- NEXT YEAR ASSIGN THE TWO US SUPREME COURT FMVSS PREEMPTION CASES (WILLIAMSON AND GEIER)

- LECTURE ON THIS. Note firearms immunity!

- ALSO ASSIGN: “medical countermeasures” under the CARES Act, PREP Act Declaration, Families First Coronavirus Response Act firearms immunity

Class 31 other affirmative defenses: statutes of repose, government contractor, and all the torts affirmative defenses, etc.

Damages

Class 2

1. East River Steamship Corp. v. Transamerica Delaval, 476 U.S. 858 (1986)
2. Dean v. Barrett Homes, Inc., 8 A.3d 766 (N.J. 2010)
3. Khan v. Shiley Inc., 217 Cal. App. 3d 848 (Ct. App. 1990)

DISCUSS PUNITIVE DAMAGES!!!

Summary

Class 31

1. Restatement (Third) of Torts: Products Liability § 2 (1998) (including the comment)
2. Restatement (Third) of Torts: Products Liability (1998) in its entirety (comments optional)

Class 33 Prescription drugs and medical countermeasures - generic label case?

Covid litigation? medical countermeasures” under the CARES Act, PREP Act Declaration, Families First Coronavirus Response Act

Class 34 automated driving and artificial intelligence IF TIME: DEGRADATION AND DETERIORATION; GRACEFUL DEGRADATION; FAIL-SAFE; DO NOT FAIL CATASTROPHICALLY -- IN BOTH DESIGN AND WARNING

Class 35 Confidentiality and arbitration

Class 36 Mass torts

1. (opioids, tobacco/ETS, guns, etc.)
2. Think about products liability generally rather than just products liability specifically
3. Find and read a court opinion
4. Prepare a 1-minute summary accompanied by a single slide that you are ready and able to share in class

Class 37 - 40: 3M case study (plus conclusion)

Class 37

Class 38

Class 39

Class 40

Other topics