Lamar Graham lamar graham brooklaw edu The Role of

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					Lamar Graham

          I. The Role of Negligence in the Formative Period;
                  The Modern Rule of Strict Liability

A. Basic Tort Principles.

      1. Granddaddy of all products liability rules: privity between P and D.
         Rule lasted ‘til about 1918 (MacPherson). Why did the privity rule last so

             a) Courts’ fear that mere foreseeability would open floodgates of

             b) Privity restricted the types of claims that could be brought. Courts
                didn’t have to review quality control.

      2. Negligence regime favored mfrs. Up through the ‘60s, the majority
         of PL cases were about mfr defects. To prove liability under N, it was not
         sufficient to prove that the product was deficient—you had to
         prove that the D was N. Assuming defects were reducible through
         better quality control, how much QC did a D have to engage in: at what
         point did the lack of QC become N? You would apply the Hand Forumula:
         B < PL. Under such a regime, D absolved of liability where the cost of QC
         significantly outweighed the liability for accidents. Upshot: The product
         could be defective, but if the mfr had used reasonable QC, he could
         still dodge liability.

B. Liability for Manufacturing Defects

      1. The bridge between N and SL.
         Escola v. Coca-Cola Bottling Co. (Calif. 1944)
         (Coke bottle explodes in waitress’s hand.)

          Rule: “In an action against a bottling company for injuries sustained by a
          restaurant employee when a bottle of beverage broke or exploded in her
          hand, plaintiff was entitled to rely on the doctrine of res ipsa loquitur to
          supply an inference of defendant's negligence, where the method used by
          the bottle maker for testing bottles for defects not apparent to the eye
          was almost infallible, where used bottles were filled and distributed by
          defendant without again being subjected to the same tests, and where,
          regardless of whether the explosion in question was caused by an
          excessive charge or a defect in the glass, there was a sufficient showing
          that neither cause would ordinarily have been present if due care had
          been used, defendant having had exclusive control over both the charging
          and inspection of the bottles.”

          Traynor concurrence (real upshot of case): “I concur in the
          judgment, but I believe the manufacturer's negligence should no longer be

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               Lamar Graham / Products Liability (Prof. Twerski), S05

          singled out as the basis of a plaintiff's right to recover in cases like the
          present one. In my opinion it should now be recognized that a
          manufacturer incurs an absolute liability when an article that he
          has placed on the market, knowing that it is to be used without
          inspection, proves to have a defect that causes injury to human
          beings…. Even if there is no negligence…public policy demands
          that responsibility be fixed wherever it will most effectively reduce
          the hazards to life and health inherent in defective products that
          reach the market. It is evident that the manufacturer can
          anticipate some hazards and guard against the recurrence of
          others, as the public cannot. Those who suffer injury from defective
          products are unprepared to meet its consequences. The cost of an injury
          and the loss of time or health may be an overwhelming misfortune to the
          person injured, and a needless one, for the risk of injury can be insured
          by the manufacturer and distributed among the public as a cost of doing
          business. It is to the public interest to discourage the marketing of
          products having defects that are a menace to the public. If such
          products nevertheless find their way into the market it is to the
          public interest to place the responsibility for whatever injury they
          may cause upon the manufacturer, who, even if he is not negligent
          in the manufacture of the product, is responsible for its reaching
          the market. However intermittently such injuries may occur and
          however haphazardly they may strike, the risk of their occurrence is a
          constant risk and a general one. Against such a risk there should be
          general and constant protection and the manufacturer is best situated to
          afford such protection….”

C. The modern rule of strict liability in tort.

      1. Breach of implied warrant of merchantability.

             a) UCC §2-314(2)(c). Accompanying every sale of goods (unless
                disclaimed) is a warranty that the produce is reasonably fit
                for the ordinary purposes for which such goods are used.

             b) Privity requirement. Breach of implied warrant req’d only that P
                establish defect, not fault. BUT: Had to be brought as a contract
                claim, therefore necessitating privity. Rule remained in effect until
                Henningsen v. Bloomfield Motors, wherein a woman was injured
                when new car spun out of control. Court acknowledged that there
                was no privity of contract between the manufacturer and the
                injured party, but stated that modern conditions do not
                allow such privity to occur. Thus, the obligation of the
                manufacturer should rest upon the demands of social

             c) Tort replaces breach of implied warrant.
                Greenman v. Yuba Power Products, Inc.
                (P gets power tool for Xmas; 2 yrs later buys attachment that flies
                off and hits him in the head, causing serious injury. P sues for
                breach of implied warrant of merch. D, mfr, claims P didn’t give
                notice of breach in “reasonable” time, as required by Uniform Sales
                Act §1769.)

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 Rule: The implied warrant of merchantability should not control
 actions by injured consumers against manufacturers with whom
 they have not dealt. Tort law, not contract law, should govern
 in products liability. Rules defining and governing warranties
 that were developed to meet the needs of commercial transactions
 cannot properly be invoked to govern the manufacturer’s liability to
 those injured by its defective products unless those rules also
 serve the purposes for which such liability is imposed.

     (1) Strict Liability and Breach of Implied Warrant of
         Merchantability should NEVER be submitted together
         to a jury on a manufacturing defect case. Instead,
         insist that the jury instruction state that no N can be found
         without finding defect.

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        Lamar Graham / Products Liability (Prof. Twerski), S05

2. Restatement (Second) of Torts (1965), §402A: Special Liability of
   Seller of Product for Physical Harm to User or Consumer.

   1 – One who sells any product in a defective condition unreasonably
   dangerous to the user or consumer or to his property is subject to liability
   for physical harm thereby caused to the ultimate user or consumer, or to
   his property, if
     A – the seller is engaged in the business of selling such a product, and
     B – it is expected to and does reach the user or consumer without
   substantial change in the condition in which it was sold.

   2 – The rule stated in subsection (1) applies although
     A – the seller has exercised all possible care in the preparation and sale
   of his product, and
     B – the user or consumer has not bought the product from or entered
   into any contractual relation with the seller.

       a) Part 2A gets rid of negligence.

       b) Part 2B gets rid of privity.

3. Reasonable care irrelevant vis-à-vis mfr defect.
   Pulley v. Pacific Coca-Cola Bottling Co.
   (P finds cig butt in her Coke. Can Coke intro evidence that such a find was
   extremely unlikely?)

   Rule: In a products liability action brought under a theory of strict
   liability, a court may exclude testimony by the manufacturer re QC during
   manufacture. While such evidence would be admissible in a N action, QC
   evidence is irrelevant to S/L for mfr defect. Here, D distributed a
   product not fit for human consumption; fault doesn’t matter.

4. Policy objectives supporting strict liability in tort. (James A.
   Henderson, Jr., “Coping with the Time Dimension in Products Liability”

       a) Strict Liability satisfies 4 major objectives:

              (1) Encouraging investment in product safety

              (2) Discouraging consumption of hazardous products

              (3) Reducing transaction costs

              (4) Promoting loss spreading

       b) Strict Liability is fairest solution.

              (1) Consumer expectations. The product that contains a
                  hidden manufacturing defect that causes harm and
                  disappoints the consumer’s or user’s reasonable
                  expectations with regard to safety; consumer has paid
                  money, therefore he expects it will not fail.

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     (2) Who bears the burden? In an N regime, a mfr is
         deliberately taking chances with the physical well-being of
         those who buy his product. Whatever the mfr chooses as
         QC will give him the number of expected accidents he is
         liable for—i.e. the higher the quality, the fewer accidents.
         Causes the financial burden of accidents to be borne by
         those who use, and therefore benefit directly from, the
         product. SL reverses that.

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          II. Defect as the Linchpin of Strict Products Liability

A. What Makes a Product Defective? RST §402A: Defect = any product in a
   defective condition unreasonably dangerous to the user or consumer.

B. Defect => unreasonable danger.
   Cronin v. J. B. E. Olson Crop.
   (Bread-truck driver thrown through windshield after being hit by from behind by
   runaway bread trays.

   Rule: P need not establish both that a product contained a defect which
   proximately caused his injuries and that such defective condition made the
   product unreasonably dangerous to the user or consumer. RST §402A states that
   a “defective condition” is one not contemplated by the ultimate consumer, which
   will be unreasonably dangerous to him. While a literal reading would require
   fact finder to find (1) defect and (2) unreasonable dangerousness, in
   reality, req’ing P to that a defect made a product “unreasonably
   dangerous” places upon P a significantly increased burden and
   represents a step backward in products liability law. The seller of the
   product is protected from being the insurer of his own products because of the
   necessity of P in proving that there was a defect in the manufacture or design of
   the product and that such defect was a proximate cause of the injuries. The seller
   therefore should be liable for all injuries proximately caused by any of its
   products which are adjudged defective.

      1. “Unreasonably dangerous”: Innocuous products such as sugar and
         butter, unless contaminated, would not give rise to a SL claim merely
         because the former may be harmful to a diabetic or the latter may
         aggravate the blood cholesterol level of a person with heart disease.
         Presumably, such dangers are squarely within the contemplation of the
         ordinary consumer. Prosser suggests that the “unreasonably dangerous”
         qualification was added to foreclose the possibility that the manufacturer
         of a product with inherent possibilities for harm (sugar, butter, whiskey)
         would become “automatically responsible for all the harm that such things
         to in the world.”

C. RTT:PL §1: Liability of Commercial Seller or Distributor for Harm Caused
   by Defective Products

   One engaged in the business of selling or otherwise distributing products who
   sells or distributes a defective product is subject to liability for harm to persons or
   property caused by the defect.

D. RTT:PL §2: Categories of Product Defect

   A product is defective when, at the time of sale or distribution, it contains a
   manufacturing defect, is defective in design, or is defective because of
   inadequate instructions or warnings. A product:
      (a) Manufacturing Defect: the product departs from its intended design even
   though all possible care was exercised in the preparation and marketing of the

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       (b) Design Defect: the foreseeable risks of harm posed by the product could
   have been reduced or avoided by the adoption of a reasonable alternative design
   by the seller or other distributor, or a predecessor in the commercial chain of
   distribution, and the omission of the alternative design renders the product not
   reasonably safe;
       (c) Defective because of Inadequate Instructions or Warnings: the foreseeable
   risks of harm posed by the product could have been reduced or avoided by the
   provision of reasonable instructions or warnings by the seller or other distributor,
   or a predecessor in the commercial chain of distribution, and the omission of the
   instructions or warnings renders the product not reasonably safe.

E. How does D prove original defect (the practical dimension)?

      1. Expert Testimony. Expert who has examined the product and is able to
         opine that a defect at the time of sale caused the accident.

      2. Circumstantial proof of defect (res ipsa loquitur). When the product
         malfunctions under circumstances that support an inference of original

             a) RTT:PL §3.

                 It may be inferred that the harm sustained by P was caused by a
                 product defect existing at the time of sale or distribution, without
                 proof of a specific defect, when the incident that harmed P:
                     (a) was of a kind that ordinarily occurs as a result of product
                     (b) was not, in the particular case, solely the result of causes
                 other than product defect existing at the time of sale or distribution

             b) RIL: No shifting BOP to P; leave it to the jury.
                Speller v. Sears, Roebuck & Co.
                (Woman killed in kitchen fire. P blames fridge wiring. D, fridge
                maker, blames stove. Kitchen was destroyed, so there’s no way to
                definitely prove either. So: Where D asserts an alternative theory,
                does BOP shift to P to disprove?)

                 Holding/Rule: NY has long recognized the viability of the
                 circumstantial approach in products liability cases. P is not required
                 to prove the specific defect; proof of necessary facts may be
                 circumstantial. P must prove that the product did not perform
                 as intended and exclude all other causes for the product’s
                 failure that are not attributable to defendants. (This is
                 consistent with Restatement.) In so doing P is required only
                 to present competent evidence that the fire was not caused by
                 the grease-fire as claimed by D. Testimony by 3 experts qualifies
                 as competent evidence. So it goes to the jury.

                     (1) Rebuttable presumption of defect. P does not have to
                         prove it was the wiring or a lightbulb shorting or a bad
                         freezer motor. P can allege that there was a defect without
                         assigning specific defect, where the harm was of the sort

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        that would injure someone and was extant at the time of
        sale/distribution. If there is a rival hypothesis that is not
        refuted, you can’t make this claim. Here, D offered
        alternative hypothesis—and thought it constituted
        refutation. Court said no: Rival hypothesis—that it was the
        stove—was refuted: Experts who said it wasn’t the stove, it
        was the fridge. Upshot: P can come in with RIL case, but it’s
        a rebuttable presumption. D can counter, and if P leaves it
        alone, P loses. If P refutes with competent evidence, there’s
        an issue for a jury.

     (2) Physical Facts Rule. P says he was going 45mph; W says
         P was going at least 65; skid marks say P couldn’t have
         been going more than 40. P wins—physical evidence
         (backed up by experts) trumps W.

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           III.      The Boundaries of Strict Products Liability

A. What are—and what are not—products?

     1. What is and is not a product is impt mostly in mfr defect cases. Not
        an issue in N cases—products and services are measured by the same
        yardstick: negligence. But where S/L is available, it’s critical: if product,
        S/L applies; if not, it’s an N case.

     2. Product v. services. You go to mechanic and have him replace brakes:
        He sells you brakes and then installs them. If the brakes are defective,
        that’s a sale, and he’s strictly liable (retailer as part of distrib chain). But if
        the installation was defective, it’s N.

     3. RTT:PL (1998), Sec. 19—definition of “product”.

             a) “A product is tangible personal property distributed
                commercially for use or consumption….” Although RTT:PL
                focuses on personal, not real, property, most jurisdictions now
                cover prefab and standardized housing units.

             b) “Services, even when provided commercially, are not
                products.” When there’s a mix of goods and services, court will
                make the decision on which predominates. If the court determines
                that service predominates, P must prove N.

             c) “Human blood and human tissue, even when provided
                commercially are not subject to the rules of this Restatement.”

                       (1) Statutory exemptions. Some states underline human
                           blood/tissue exception by statute.

                       (2) Standard of care. Adherence to professional standards
                           creates rebuttable presumption of due care.

     4.    “Tangible” requirement.
          Winter v. GP Putnam’s Sons (9C 1991)
          (“Mushroom Encyclopedia” error leads to liver transplants.)

          Rule: The content of a book is not a product giving rise to strict liability in
          tort stemming from errors therein. Strict products liability applies only
          to tangible products, not words and ideas.

     5. Twerski on defective blood cases. In early cases, blood was defective,
        but the blood bank wasn’t N (assuming that it did what tests it could),
        because there was no effective test for hepatitis and HIV. SL was new
        when these cases came out, and courts and legislatures didn’t want blood
        banks held to SL standard. So 48 states passed laws to the effect that
        blood/tissues are not products; or that they’re not sales; or that they’re
        not subject to SL. So no cause of action in products liability; though N still

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         would apply. In reality, most of these cases failed because Ps couldn’t
         prove N—the blood banks were following accepted procedures of the time.

B. Which commercial activities constitute “selling or otherwise

      1. RTT:PL (1998), § 20 Definition of "One Who Sells or Otherwise

         For purposes of this Restatement:

         (a) One sells a product when, in a commercial context, one transfers
         ownership thereto either for use or consumption or for resale leading to
         ultimate use or consumption. Commercial product sellers include, but are
         not limited to, manufacturers, wholesalers, and retailers.

         (b) One otherwise distributes a product when, in a commercial transaction
         other than a sale, one provides the product to another either for use or
         consumption or as a preliminary step leading to ultimate use or
         consumption. Commercial nonsale product distributors include, but are not
         limited to, lessors, bailors, and those who provide products to others as a
         means of promoting either the use or consumption of such products or
         some other commercial activity.

         (c) One also sells or otherwise distributes a product when, in a commercial
         transaction, one provides a combination of products and services and
         either the transaction taken as a whole, or the product component
         thereof, satisfies the criteria in Subsection (a) or (b).

             a) Free samples. Such gifts fit the definition of Sec. 20

             b) Sale v. commercial lease. No diff vis-à-vis S/L. Thus, rental cars
                are “sales.”

             c) Bailors. Specifically covered by Sec. 20.

             d) Harm before sale. Defective products that cause injury prior to
                sale still covered by Sec. 20. (Think test-driving a dealer demo.)

             e) Facilitation. Good Housekeeping/Underwriters Labs seals of
                approval do not constitute facilitation provided the endorsement
                doesn’t overreach: Negligent Undertaking Doctrine.

      2. Professional (medical) services.
         Magrine v. Krasnica (NJ 1969)
         (Is dentist S/L when needle breaks off in patient’s jaw?)

         Rule: A doctor or dentist is not strictly liable for latent manufacturing
         defects in medical instruments.

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             IV. Assigning Responsibility Inside and Outside
                   the Commercial Chain of Distribution

A. Allocating responsibility btw product distributors and other Ds and
   among members of the distributive chain.

       1. Joint and several liability. Two types at common law:

              a) Where Ds acted in concert; and

              b) Where Ds acted independently but caused indivisible harm.

       2. Letting retailers and wholesalers out of the litigation.

              a) Implied right of indemnity for retailers, wholesalers?

              b) Sealed-Container Doctrine.

              c) Model Uniform P/L Act, Sec. 105: N for sellers other than mfrs?

B. Twerski on comparative fault. Hypo: P is a passenger in a GM car with
   defective brakes. Driver was either drunk or speeding. If brakes had worked, car
   would have stopped; if driver was sober or driving speed limit, car would have
   stopped. But together, bad brakes and bad driver led to P’s harm…

       1. At common law, D1 and D2 were both 100% liable—jointly or severally
          liable. P could collect for either, and Ds could fight it out amongst
          themselves for contribution. But in last 20 years, most states have
          abrogated C/L joint TF doctrine in part or in full. Took place over years,
          starting with the introduction of comparative fault (obviating C/N as a
          complete bar to action), and led logically to the notion that if we can
          apportion fault btw P and D, why not between two Ds?

       2. GM may be 30% at fault here; but they’re 100% liable: But For the bad
          brakes…. So apportionment of fault does not necessarily kick out J/S
          liability. But the reality is a large number of states have done away with
          J/S liability, the consequences of which are enormous.

       3. Problem: Say GM is 30% at fault here; so only owes $300K of $1M
          verdict; P must collect $700K from other party. And what if he’s
          judgment-proof? So: abolition of J/S liability is the ultimate cap: caps a D
          at his level of fault. Devastating for Ps.

              a) Some states have done away with J/S for pain/suffering but not for
                 economic harms (lost wages, etc.). But most awards are primarily
                 for pain/suffering.

              b) Some states have adopted thresholds: If D1 is 25% or more, you
                 can collect 100%; if under 25%, D pays only his share.

                     (1) NJ threshold is 60%.

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                    (2) NY is 50%.

      4. Where there’s a basic distributive chain—maker, wholesaler, retailer,
         buyer—all you have to do is prove there’s a defect. In the mid-70s,
         though, retailers and wholesalers began crying to legislatures: You’re
         really after makers, not those who passed it along; we want out of these
         cases in S/L. So we started getting statutes that took wholesalers and
         retailers—non-mfr sellers—out of SL; you’re only liable in N unless there’s
         no way to get at the mfr (foreign, insolvent, etc.). Destroys the
         distributive chain, which was the beauty of products liability.

      5. Problem 6…exploding champagne from self-service liquor mart. State has
         law barring SL from retailer except where mfr unavailable; N only. So P
         goes up the chain to Shangri-la. Shangri-la blames the retailer. Blaming
         up and down the distrib chain…and P left out in the cold.

C. Worker’s Comp. Biggest class of immune Ds in this country is employers.
   Particularly in the area of pain/suffering—employers pay scale and nothing more.

      1. Limits on employers’ immunity: intentional torts.
         Laidlow v. Hariton Machinery Co. (NJ 2002)
         (Worker’s fingers bit off by rolling mill from which employer had removed
         safety guard.)

          Rule: “…When an employee sues an employer for an intentional tort and
          the employer moves for summary judgment based on the workers'
          compensation bar, the trial court must make two separate inquiries.
          The first is whether, when viewed in a light most favorable to the
          employee, the evidence could lead a jury to conclude that the
          employer acted with knowledge that it was substantially certain
          that a worker would suffer injury. If that question is answered
          affirmatively, the trial court must then determine whether, if the
          employee's allegations are proved, they constitute a simple fact of
          industrial life or are outside the purview of the conditions the
          legislature could have intended to immunize under the workers'
          compensation bar. Resolving whether the context prong of Millison
          is met is solely a judicial function. Thus, if the substantial certainty
          standard presents a jury question and if the court concludes that the
          employee's allegations, if proved, would meet the context prong, the
          employer's motion for summary judgment should be denied; if not, it
          should be granted.”

             a) Knowledge or substantial certainty is all that’s required (not
                subjective intent).

      2. Contribution and Workers Comp.

             a) Hypo: W (worker) is using a punch press. It malfunctions,
                punching twice, and injures W. It may have a design defect, or it
                may have an mfr defect. E (employer) knows but does nothing (but
                it’s not an intentional tort). Say mfr (M) is 20% responsible,
                employer is 80% responsible. No tort liability against E, because

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  he’s insulated by W/C; thus, he can’t be a joint tortfeasor.
  Possibilities? Four:

      (1) No contribution. Overwhelming majority. So P sues M for
          $1M and wins, and M is on the hook for the whole thing.
          Moreover, E, who paid $100K in W/C, puts a subrogation
          lien on M to recover his $100K…because M is liable for all of
          W’s harm. Pretty bad scene for mfrs.

      (2) Total contribution. Formerly the law in NY. Problem:
          Destroys W/C immunity. Employers have no incentive to

      (3) Limited contribution. E should liable for the W/C portion
          of W’s injury. Incentivizes E to run a tighter shop; some
          relief for M; and W still gets compensated for full value of
          his injury. Preserves immunity of W/C.

      (4) Abolition of joint T/F liability. 36 states, to one degree
          or another. Each party liable only for his proportion of fault.
          Say M is 20% responsible, E is 80%. In a $1M case, W gets
          $200K from M and $100K from W/C…and sucks up the rest.

b) Workers Comp in NY…

      (1) NY used to have a rule of total contribution—Dole v.
          Dow. P can’t sue E, but he can sue M; M, in turn, can seek
          contribution from E to full extent of E’s fault. Bad for the
          W/C system.

      (2) NY now bars contribution—except if P suffers severe
          injuries specifically enumerated in the statute. P still can’t
          sue E, but M can get total contribution from E.

      (3) NY law ending joint TF liability. For economic loss—lost
          wages, etc.—there is still joint T/F liability in NY (100%
          liability for, say 5% fault). For non-econ loss (pain/suffer),
          you pay only your share so long as it doesn’t exceed 50%;
          if over 50%, you’re liable for 100%. Exception: where other
          D is covered by W/C, mfr is 100% liable…unless there’s a
          grave, statutorily enumerated injury allowing

      (4) In NY, bar on TF liability does not apply to drivers in
          car accidents. Hypo: P is passenger in car of D1, who is
          speeding; the car is a Ford (D2) with bad breaks. D1 is 80%
          at fault (and 100% liable); D2 is 20% at fault. Case is worth
          $1M. Say D1 has a $100K insurance policy. P will get his
          $100K from D1 and his $200K from Ford…and suck up the
          rest. Reason? D1 is 100% liable as the driver…but Ford isn’t
          the driver…so it’s still covered by the joint TF rule, which
          requires them only to pay their percentage, so long as it’s
          below 50%. Argh! Review pp109-115.

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c) Allocating responsibility btw employer and mfr.
   Kotecki v. Cyclops Welding (IL 1991)
   (Contribution action against employer by mfr: In a P/L action, is
   employer liable for more than his statutory W/C share?)

   Rule: Limited contribution. Equity demands a cap on
   employer’s liability at the statutory W/C level. “We find that
   the Minnesota rule provides the fairest and most equitable balance
   between the competing interests of the employer and the third-
   party defendant…. Limiting the amount of contribution of an
   employer to its liability under workers compensation ‘allows the
   third party to obtain limited contribution, but substantially
   preserves the employer’s interest in not paying more than workers
   compensation liability. While this approach may not allow full
   contribution recover to the third party in all cases, it is the solution
   we consider most consistent with fairness and the various statutory
   schemes before us’.”

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                                V. Causation

A. Four steps in causation analysis:

      1. Did the product harm the P?

      2. Did the D supply the product?

      3. Did the defect in D’s product contribute to P’s harm?

      4. Did the defective product proximately cause P’s harm?

B. Did the product actually cause the P’s harm?

      1. Generally, causation is not a problem in P/L cases. E.g., you’re
         driving a Ford, you have a wreck. There may be a question whether the
         Ford was defective, but not whether a Ford product was involved.

      2. Toxic torts: The first question may be the killer (as it were). Hypo:
         P suffers heart attack/stroke/birth defect—all of which have background
         risks. (People have heart attacks all the time, not associated with drugs.)
         P sues Rx; Rx says go sue Hershey’s—your heart attack had nothing to do
         with our drug.

      3. But-For causation in general. Divorcing the product from the defect
         (for now).

             a) Generic: Is it possible for this kind of product to do this kind of

             b) Specific: Did this particular product cause the P’s harm.

      4. Special problems of proof: Reliance on experts.

             a)    “General acceptance” test for admissible science.
                  Frye v. US (DCC 1923)
                  (Systolic BP test not admissible as evidence of lying.)

                  Rule: >>[T]he thing from which the deduction is made must be
                  sufficiently established to have gained general acceptance
                  in the particular field in which it belongs.<<

                     (1) Frye gave control to scientists.

             b) FRE 702, more permissive, supercedes Frye.
                Daubert v. Merrill Dow Pharmaceuticals (US 1993)
                (Birth defects from Bendectin?)

                  Rule: A court has a “gatekeeper” function re the admission of
                  expert testimony. Expert evidence or testimony must “assist the
                  trier of fact to understand the evidence or to determine a fact in

                                     Page 15 of 57
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   issue.” Four factors to consider in making such a determination [as
   subsequently summarized in Kumho]:
      -- Whether a "theory or technique . . . can be (and has
   been) tested";
      -- Whether it "has been subjected to peer review and
      -- Whether, in respect to a particular technique, there is a
   high "known or potential rate of error" and whether there
   are "standards controlling the technique's operation"; and
     -- Whether the theory or technique enjoys "general
   acceptance" within a "relevant scientific community."

      (1) First step of Daubert inquiry: Judge as gatekeeper. Must
          conduct a Daubert hearing. Which can go on forever.

c) Daubert standard for experts: Courts are in charge.
   Rider v. Sandoz Pharma Corp (11C 2002)
   (Weak evidence in Parlodel birth-defects case.)

   Rule/Holding: “In the absence of epidemiology, Ps may still prove
   medical causation by other evidence. In the instant case,
   however…to admit the P’s evidence, the Court would have to make
   several scientifically unsupported ‘leaps of faith’ in the causal
   chain. The Daubert rule requires more. Given time, information,
   and resources, courts may only admit the state of science as it is.
   Courts are cautioned not to admit speculation, conjecture, or
   inference that cannot be supported by sound scientific principles.
   ‘The courtroom is not the place for scientific guesswork, even of
   the inspired sort. Law lags science; it does not lead it.’ Rosen v.

      (1) Parlodel was taken as anti-lactation drug for post-partum
          women. P’s argued that it caused hemorrhagic stroke.

             (a) Epidemiology—the typical gold standard—was weak

             (b) Adverse drug reports—but no control group.

             (c) Dechallenge/Rechallenge data. Form of controlled
                 study—but only of one person: Give ‘em the drug,
                 problem; take it away, no problem.

             (d) Animal studies. Too hard to extrapolate.

             (e) Chemical analogies. There are lots of similar drugs,
                 chemically speaking; some cause problems, some

             (f) FDA findings. Not sufficient. Erring on the side of
                 caution in w/drawing drug. (FDA concluded that

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              Lamar Graham / Products Liability (Prof. Twerski), S05

                              Parlodel was no better than Tylenol and a bra…so
                              why take the risk if there are questions?)

                   (2) Prof. Berger wrote brief for this case and thought court had
                       it all wrong. Sure, any element alone is not sufficient to
                       prove P’s case, but altogether they might be. Rather than
                       an issue of admissibility, the evidence ought to have come
                       in and gone to weight.

                   (3) Twerski thinks something smells here. Sure, there’s no hard
                       proof of causation, but there’s still a tort issue: Women
                       weren’t informed of the risks…or they wouldn’t have taken
                       them. The Rx companies had better access to risk data…and
                       didn’t share it with patients. This should have been an
                       Informed Consent case. Daubert masks informed-choice
                       cases. If you can’t prove hard causation, you can’t prove
                       damages. But what about damages for lack of informed
                       consent? Twerski thinks it should be a form of compensable
                       mental distress—because people spend their whole lives
                       wondering if they could have saved their kid by not taking

                          (a) Look at Vioxx cases. Mfrs bet wrong: Evil but not
                              stupid. Thought they’d never get caught on
                              causation. They knew about risks, but though no one
                              would be able to prove link—too remote. Only when
                              it turned out that they were very wrong—that the
                              risk was doubled or tripled—that they pulled it; these
                              are cognizable harms. P’s lawyers are only taking
                              cases where stroke was close to prescription.

C. Did the D supply the product?

      1. Defendant ID in general. Circumstantial proof—logo, TM, appearance,
         etc.—is kosher.

      2. Market-share liability. DES, asbestos.

            a) DES cases. Where a young woman develops rare repro cancer and
               her mom took DES, DES almost certainly caused it. That wasn’t the
               problem. Rather, whose made the DES? All the difft mfrs point to
               one another—not me, him. Thus, CA court in Sindell said it’s not
               fair that these victims get stiffed: All these Ds were negligent, and
               all their negligence caused harm…so we’ll apportion liability based
               on market share.

                   (1) Problem: How do you define market? Drugstore? Nabe?
                       State? National? World?

                          (a) NY, in Hymowitz, said the market was the US.

                          (b) And: No mfr can prove himself out (as in other

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              Lamar Graham / Products Liability (Prof. Twerski), S05

                           (c) And: 50% of mkt is out of biz. Fine. You’re still liable
                               for your share.

             b) Asbestos cases. Most of the mfrs are out of biz now, so you go
                after secondary Ds—the users of asbestos. Big target: auto
                makers…because their brake linings contained asbestos…and that
                makes ‘em defective products.

                    (1) Problem: Lotsa difft kinds of brake linings (unlike DES,
                        where there was one dose for all), with lots of difft levels of
                        exposure. How can you do market share analysis?

D. Did the defect in D’s product contribute to P’s harm?

      1. This is the classic Causation question. Same as in N: But For D’s
         product, would the harm have occurred anyway? Courts often use
         the term proximate cause. You have to look closely to see whether the
         court is talking cause in fact or proximate cause. Don’t worry too much
         about labels—look at the facts. Causation/foreseeability analysis.

      2. All-or-nothing causation.
         Midwestern VW Corp. v. Ringley (KY 1973)
         (Is bad brake drum the only thing that could have cause P’s injury?)

         Rule: The doctrine of strict liability does not relieve P of the burden of
         introducing evidence of causation. Although a jury may draw a reasonable
         inference from the evidence of a defect in manufacturing, it is incumbent
         on the P to introduce evidence that will support a reasonable
         inference that the defect was the “probable” cause of the accident,
         as distinguished from a “possible” cause among other
         possibilities; otherwise the jury verdict is based on speculation or

             a) Twerski case six years ago, riding on Midwestern VW’s coattails: P
                was in a crash in a VW. Car door opened, and P was thrown out;
                became a quad. P contended door latch was defective—and thus
                was the cause of P being thrown out and permanently injured. The
                door latch in the VW could take 2K lbs of pressure before popping
                open. P was able to establish that it should have been stronger. D
                countered that forces in this case were around 10K lbs. What does
                P have to prove? That a 10K-pound door latch would have
                prevented the injury….

                    (1) P is caught on horns of dilemma btw defect and causation. P
                        could argue that he need a door that would withstand 12K
                        lbs in pressure. You can make your defect case causation-
                        proof by setting the standard very high. Problem: As you
                        increase the standard, you get to the point where a judge
                        finds the standard unreasonably high. What P has to do in
                        these case is:

                    (2) Contest the 10K force at play—bring it down to 6K lbs.
                       Then maybe at 6K lbs, maybe you can squeak through—it

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Lamar Graham / Products Liability (Prof. Twerski), S05

        should have been 6K lbs…and I have evidence that the
        forces at work here didn’t exceed 6K lbs.

                    Page 19 of 57
         Lamar Graham / Products Liability (Prof. Twerski), S05

3. Enhanced injury.
   Lahocki v. Contee Sand & Gravel (MD Ct. Spec. App. 1979)
   (Plumbing van hits barricade, rolls; roof comes off, injuring passenger in
   jerry seat. In a strict product liability action, must P prove the proportion
   of his “enhanced injury” that is attributable to roof defect?)

   Rule: In an “enhanced injury” action based on S/L for mfr’s
   defect, P need not prove how bad his injuries would have been in
   the absence of said defect. P need prove only causal link btw said
   injuries and mfr’s defect.

   Rationale: >>To require the plaintiff…to prove how, and how much, he
   would have been injured "but for" the defect in the manufacturer's
   product, simply denies the application of strict liability to such cases. The
   very purpose of strict liability is to ease an injured party's burden
   of proof where it was heretofore foreclosingly difficult. By focusing
   on the product rather than the conduct of the manufacturer, the "new
   law" is practically another form of negligence per se. The "newness" of the
   concept obscures the fact that "strict liability" is not a radical departure
   from traditional tort concepts, and compares favorably to the doctrine of
   res ipsa loquitur. Res ipsa, of course, is the rebuttable presumption that a
   defendant is negligent, and arises from proof that the instrumentality
   causing the injury was in defendant's exclusive control…. The adoption of
   the concept of strict liability was intended to make it easier for injured
   parties "to comply with the proof requirements of negligence actions."
   Since damages are a requisite element of proof in negligence actions, it
   would be contradictory to adopt, for public policy reasons, a concept to
   ease proof requirements of one aspect of negligence actions (liability), and
   then to erect an unreasonable and all but impossible barrier to recovery
   upon another aspect of proof (damages). To do so in this manner would
   be contrary even to our older traditional concepts of assigning burdens of
   proof of damages. We find no fault with the underlying premise that
   a plaintiff must prove that his injuries were "enhanced" (i.e.,
   caused) by the defect. Some evidence of enhancement (causation)
   is prerequisite to engendering a jury issue of assignable damages,
   just as some evidence of liability is a prerequisite to overcoming a
   motion for directed verdict. But the court below found, and we
   agree, that there was sufficient evidence to serve that purpose.
   The evidence ascribed the entire injury to the defect. The burden
   of persuading the jury by minimizing the degree of enhancement
   or causation is the defendant's responsibility.

       a) Most crashworthiness cases are about design, not mfr defect; this
          was about mfr defect—here, bad welds in van roof. Even according
          to GMs standards, there were fewer welds than required; and of
          those, only a fraction of those met standards. If there had been
          plenty of welds and they met standards, then the claim would have
          been that there should have been even more and better—i.e., it
          would have been a design-defect case, not mfr-defect case.

       b) Driver’s N caused the wreck. What is GM’s major line of defense?
          Yes, the roof was defective…but it would have made no diff
          anyhow, because even if it had had all the required welds, the roof

                              Page 20 of 57
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   would have come off in any event. Classic line of defense in all
   crashworthiness cases: Even if defective, the crash was so
   violent…. Clearly not a foreseeability issue here: So it’s about
   cause-in-fact—that the defect was not the cause of the harm.

c) First-collision injuries v. second-collision injuries. First-
   collision injuries are injuries that would have occurred even if there
   had been no defect: injuries that occur when you get in a wreck.
   Mfr not liable for those injuries. In order to determine second-
   collision injuries, you start with total injuries—say, $10M. If the car
   had not been defective, P would have suffered only $2M in injuries.
   D is therefore liable for $8. Because $2M would have occurred in
   the best car. Mfr is liable only for “enhanced” injuries—second-
   collision injuries. You need experts for this. Here, P brought in
   expert on crash-test dummies; he said if the roof stayed on, P
   would not have suffered a spinal injury. Where along the spectrum
   of $0-$10M is not clear. Two lines of authority here:

       (1) Huddle v. Levine. P must be able to quantify the damages
           caused him—if you can’t quantify, you can’t come to court.

       (2) Fox-Mitchell. Once P proves that there has been some
           increase as a result of defect, burden shifts to D to prove it
           was less. P must prove only that there was some increase in
           harm, burden shifts to D to limit it. If he can’t, P recovers
           fully. Majority view—and the position adopted here. See
           RTT:PL, Sec. 16.

d) RTT:PL § 16 Increased Harm Due to Product Defect

   (a) When a product is defective at the time of commercial sale or
   other distribution and the defect is a substantial factor in increasing
   the plaintiff's harm beyond that which would have resulted from
   other causes, the product seller is subject to liability for the
   increased harm.

   (b) If proof supports a determination of the harm that would have
   resulted from other causes in the absence of the product defect,
   the product seller's liability is limited to the increased harm
   attributable solely to the product defect. [Limiting D’s exposure
   only to enhanced injury.]

   (c) If proof does not support a determination under Subsection (b)
   of the harm that would have resulted in the absence of the product
   defect, the product seller is liable for all of the plaintiff's harm
   attributable to the defect and other causes. [Supports sub-a: if you
   can’t limit the second collision injuries…P recovers all. Liability on
   an all-or-nothing basis. P’s hate 16c.]

   (d) A seller of a defective product that is held liable for part of the
   harm suffered by the plaintiff under Subsection (b), or all of the
   harm suffered by the plaintiff under Subsection (c), is jointly and
   severally liable or severally liable with other parties who bear legal

                       Page 21 of 57
        Lamar Graham / Products Liability (Prof. Twerski), S05

          responsibility for causing the harm, determined by applicable rules
          of joint and several liability.

              (1) Pure case: No P fault; only question is whether productive
                  was defective and led to harm… So: defect must be a
                  substantial factor in P’s harm. Then you apply Sec. 16….

              (2) Now we’re back to Twerski’s case from Class 1. P is
                  passenger in a Nissan. P was hit by another driver, probably
                  asleep at wheel. P suffered bad brain injuries when door sill
                  collapsed; said it collapse should have happened, was
                  design defect. D, Nissan, said injuries would have occurred
                  anyway. Now, assume that P can prove defect and that w/o
                  defective sill he wouldn’t have suffered nearly as much.
                  What should Nissan do? Implead driver of other car for fault
                  apportionment. Why? Single indivisible injury. Make both Ds
                  joint TFs…and NJ has done away with J/S liability; joint TF
                  pays only his own share unless fault reaches 60%, at which
                  point you’re liable for 100%. If the jury had said 50/50
                  fault, Nissan would have been on the hook only for $7M of
                  the $14M in damages. The guy who initiates the injury is
                  responsible for all of it; secondary actor is responsible only
                  for his portion.

              (3) P’s argument: Nissan should have delivered a crashworthy
                  car. What diff does it make if other driver was N? Nissan
                  shouldn’t get off the hook because its responsibility starts
                  after the crash. See RTT:PL 16d. Regardless of whether you
                  can apportion damages, both Ds are still joint TFs. Then
                  apply state law re JTFs.

4. “Lost chance” as cause-in-fact.
   Herskovits v. Group Health Coop. (Wash. 1983)
   (Misdiagnosis of lung cancer reduces chances of survival.)

   Rule: Evidence that a D’s N was a substantial factor in lowering
   the likelihood of a sick P’s survival is sufficient evidence of the
   proximate cause of P’s death to put the issue to a jury. “It is not
   necessary for a P to introduce evidence to establish that the N resulted in
   the injury or death, but simply that the negligence increased the risk of
   injury or death. The step from the increased risk to causation is one for
   the jury to make…. To decide otherwise would be a blanket release from
   liability for doctors and hospitals any time there was less than a 50
   percent chance of survival, regardless of how flagrant the negligence.”

       a) Damages. Only economic. And only for that period of life

       b) Kuklin: Compensation for future tortious risk. E.g., exposure
          to long-term cancer risk. Formula: Existing injuries + probability
          analysis = compensable creation of risk w/o injury. Traditional
          rule: Must be a 50% increase in the chance of getting cancer (or
          dying from it)—say, from 20% chance to 70%. Herskovitz rule:

                             Page 22 of 57
 Lamar Graham / Products Liability (Prof. Twerski), S05

   “significantly increased.” Middle ground: Relative increase of 50%:
   from 20% to 30% chance.

c) Twerski: If caught in Stage I, P had a 39% chance of survival; in
   Stage III, 25% Assuming we use standard T rule for causation—
   preponderance of evidence, more probable than not—was D’s
   failure to diagnose earlier negligent? No--there was a 61% chance
   he’d die in Stage I, anyway; it wasn’t more likely than not that that
   early diagnosis would save his life. Seems unfair: allows dox to be
   N in dire cases. Whatever the chances are, you want them. On the
   other hand, if you buy into the idea that you ought to recover for
   lost chance, what kind of case wouldn’t be a lost-chance case?

       (1) Hypo: Guy goes through RR signal and gets clobbered by
           speeding train. Would it have happened anyway if train had
           not been speeding? Not clear. But P did not prove, given
           proximity to train, that he wouldn’t have been there if train
           had been going slower. Yet clearly D’s speeding increased
           P’s chance of getting hit. You can play this lost-chance
           game right on out to the point that eats up all causation: I
           can’t prove A caused B, but I can prove A increased the
           chance of B happening.

                      Page 23 of 57
                 Lamar Graham / Products Liability (Prof. Twerski), S05

               d) If we recognize lost chance, what are the damages going to be?
                  Many courts: Give it to the jury and let them decide, so long as it’s
                  not egregious. Hershkovits concurrence argued that P should
                  recover for the 14%--to allow no recovery would be wrong, and to
                  allow full recovery suggests that P would have survived, and we
                  don’t know that. We’re compensating for lost chance, and here, the
                  14% was the chance lost.

               e) Lost-chance is permitted in med-mal context. Why not toxic torts,
                  too? If you weren’t told that taking Bendictin increased the chance
                  of birth defects, isn’t that conceptually the same as a missed
                  diagnosis? Twerski predicts we’ll eventually see lost-chance theory
                  playing out in toxic torts and product liability.

E. Did the defective product proximately cause the P’s harm?
   Union Pump Co. v. Allbritton (TX 1995)
   (Oil-field firefighter falls off pipe rack while taking short cut after shutting off
   pump. Did the pump case the harm?)

   Rule: >>Legal cause is not established if the defendant's conduct or
   product does no more than furnish the condition that makes the
   plaintiff's injury possible. This principle applies with equal force to proximate
   cause and producing cause.<< That is, even in a regime of S/L for product
   defects, But-For causation is not sufficient. Mfr’s defect must also be a
   Substantial Factor in bringing about P’s harm. Naturally, independent, intervening
   factors (here, P’s decision to take a shortcut instead of the long, safe way
   around) may factor into such analysis.

       1. Here we have mfr defect and but-for causation (if there hadn’t been a
          defect, there wouldn’t have been a fire). But is there proximate cause?

       2. Easy answer: A product is defective because it creates unreasonable risk.
          Here, the harm wasn’t sensibly attached to the risk. Black letter in prox
          cause: If the harm is w/in the risk and the only issue is how the
          harm took place, it goes to the jury. (If it the harm itself is not w/in
          the risk, it’s a loser as a matter of law.)

       3. The foreseeable plaintiff.
          Marshall v. Nugent (1st Cir. 1955)
          (Oil truck runs car off road; car’s passenger injured by passing 3rd party.)

           Rule: Where a D’s N creates an irretrievable breach of duty to P, the
           result of which is injury to P by a third party, D is liable to P, the
           intervening act of the third party notwithstanding.

           Rationale: Proximate doesn’t mean next or immediate; it means legal.
           Direct doesn’t mean without intervention. Where the P was injured as
           a result of the dangerous conditions created by D’s N, D cannot fob
           off responsibility for his breach of duty onto a third party who
           happened to injure P only as a result of the circumstances created
           by D’s N.

                                       Page 24 of 57
 Lamar Graham / Products Liability (Prof. Twerski), S05

a) Risk specification: Relationship btw duty and P/C. We can
   shrink or enlarge both P/C and duty. We can specify risk in broad
   or narrow terms. Insofar as the duty is described broadly,
   narrowing comes through P/C. And vice versa. So: both duty and
   PC have built-in flexibility.

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                    Page 26 of 57
                Lamar Graham / Products Liability (Prof. Twerski), S05

                     VI. Liability for Defective Design

A. Twerski overview. Mfr defect is easy: Does the product meet mfr’s own
   standards? If not, it’s defective. Design is more complicated. You still have to
   measure defect against some standard—but which? Once you start talking about
   the design of any system, you’re talking about multiple factors. E.g.: You have 25
   blocks of road—how many stoplights do you need? First, you have to think about
   how fast you want traffic to flow? How impt is ped Xing? How do you deal with
   ingress/egress to merchants? How much parking? So…how do you decide what is
   a reasonably designed 25-block stretch? Well, it depends on what you want, your
   goals. Same thing is true of products. Products have function, aesthetics,
   reparability, ease of use, cost, safety, etc.; it’s all about tradeoffs. And so it’s
   complex, polycentric. Safety is not the only goal.

B. Do we need judicial review of product designs?

       1. Twerski: It’s about imbalance of information. Not long ago that we
          followed the Patent Danger Rule. But eventually, courts found that even
          where there’s good info, people are sometimes hurt by inadvertence or
          forgetfulness. The obviousness of danger goes to probability of harm: the
          more obvious the risk, the more we should reasonably avoid it. But we
          can’t avoid it all—there’s a residuum of risk even where we have good

       2. Patent Danger Rule. Campo v. Scofield (NY 1950). Farm machinery
          accident. Court held for D as a matter of law: Risk was obvious to user
          and therefore should be user’s, not D’s, responsibility.

       3. RTT:PL Sec. 3, Comment d. Rejects Patent Danger Rule.
          Obviousness of danger is only one factor to consider in determining
          whether a product was safely designed.

C. Do we need the defect requirement? What about broad enterprise
   liability? Won’t work for two reasons, according to Henderson:

       1. Unadjudicable disputes. Remove defectiveness requirement…remove
          causation requirement…and you get absurd results. Drunk slips on roller
          skate and is injured by wood lathe. Who’s liable—brewer, skate maker,
          lathe mfr?

       2. Uninsurability. Insurance is a function of predictability. When you can’t
          imagine the kind of things you could be liable for, you can’t insure against

D. Why do we need an external standard to determine design defect?
   Inferring defect from product malfunction…

       1. Twerski: Lots of cases are slam-dunks. There are product-related
          injuries, of the res ipsa type, that are clearly defect-related, whether you
          can find the defect or not.

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               Lamar Graham / Products Liability (Prof. Twerski), S05

             a) Hypo: Mary’s car seat collapsed at a red light, causing her to slam
                into another vehicle. Her car is destroyed in ensuing fire. Mary
                need not prove whether it’s mfr or design defect: the seat
                shouldn’t have collapsed in traffic.

             b) Hypo: Same facts as above, except the collapse occurred when
                Mary was rear-ended: That ain’t res ipsa—you can’t categorically
                state that the product is defective. Can any car withstand such a
                wreck? And what are the tradeoffs if you want such a safe seat?
                Once you start asking what’s reasonable…you’re back to Carroll
                Towing and the Hand Formula.

      2. RTT:PL, Sec. 2, Comment b. >>Although the rules in this Section, for
         the reasons just stated, most often apply to manufacturing defects,
         occasionally a product design causes the product to malfunction in a
         manner identical to that which would ordinarily be caused by a
         manufacturing defect. Thus, an aircraft may inadvertently be designed in
         such a way that, in new condition and while flying within its intended
         performance parameters, the wings suddenly and unexpectedly fall off,
         causing harm. In theory, of course, the plaintiff in such a case would be
         able to show how other units in the same production line were designed,
         leading to a showing of a reasonable alternative design under § 2(b). As a
         practical matter, however, when the incident involving the aircraft is one
         that ordinarily occurs as a result of product defect, and evidence in the
         particular case establishes that the harm was not solely the result of
         causes other than product defect existing at time of sale, it should not be
         necessary for the plaintiff to incur the cost of proving whether the failure
         resulted from a manufacturing defect or from a defect in the design of the
         product. Section 3 allows the trier of fact to draw the inference that the
         product was defective whether due to a manufacturing defect or a design
         defect. Under those circumstances, the plaintiff need not specify the type
         of defect responsible for the product malfunction.<<

E. Risk-Utility standards for determining design defect

      1. Reasonable Alternative Design standard.

             a) Starts with the Hand Formula. In N, it’s about whether you
                should have taken precautions; in PL, it’s whether you should have
                designed a safer product.

             b) Thibault v. Sears, Roebuck and Co. (NH 1978): >>In
                determining unreasonable danger, courts should consider factors
                such as social utility and desirability. The utility of the product
                must be evaluated from the point of view of the public as a
                whole, because a finding of liability for defective design
                could result in the removal of an entire product line from
                the market. Some products are so important that a manufacturer
                may avoid liability as a matter of law if he has given proper
                warnings. In weighing utility and desirability against danger,
                courts should also consider whether the risk of danger could
                have been reduced without significant impact on product
                effectiveness and manufacturing cost.<<

                                   Page 28 of 57
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c) Reasonable Alternative Design. As case law has evolved, RAD
   has become prerequisite for imposition of liability for defective

       (1) First you have to establish RAD.

       (2) Then you have to prove RAD would make product

d) RTT:PL, Sec. 2(b). >>[A product] (b) is defective in design when
   the foreseeable risks of harm posed by the product could have
   been reduced or avoided by the adoption of a reasonable
   alternative design by the seller or other distributor, or a
   predecessor in the commercial chain of distribution, and the
   omission of the alternative design renders the product not
   reasonably safe….<<

       (1) Comment f. Design defects: factors relevant in
           determining whether the omission of a reasonable
           alternative design renders a product not reasonably
           safe. >>A broad range of factors may be considered in
           determining whether an alternative design is reasonable
           and whether its omission renders a product not reasonably
           safe. The factors include, among others, the
           magnitude and probability of the foreseeable risks of
           harm, the instructions and warnings accompanying
           the product, and the nature and strength of consumer
           expectations regarding the product, including
           expectations arising from product portrayal and
           marketing. The relative advantages and
           disadvantages of the product as designed and as it
           alternatively could have been designed may also be
           considered. Thus, the likely effects of the alternative
           design on production costs; the effects of the alternative
           design on product longevity, maintenance, repair, and
           esthetics; and the range of consumer choice among
           products are factors that may be taken into account. A
           plaintiff is not necessarily required to introduce proof
           on all of these factors; their relevance, and the
           relevance of other factors, will vary from case to case.
           Moreover, the factors interact with one another. For
           example, evidence of the magnitude and probability of
           foreseeable harm may be offset by evidence that the
           proposed alternative design would reduce the efficiency and
           the utility of the product. On the other hand, evidence that
           a proposed alternative design would increase production
           costs may be offset by evidence that product portrayal and
           marketing created substantial expectations of performance
           or safety, thus increasing the probability of foreseeable

       (2) Overall safety: No tradeoffs. >>When evaluating the
          reasonableness of a design alternative, the overall safety of

                      Page 29 of 57
 Lamar Graham / Products Liability (Prof. Twerski), S05

          the product must be considered. It is not sufficient that the
          alternative design would have reduced or prevented the
          harm suffered by the plaintiff if it would also have
          introduced into the product other dangers of equal or
          greater magnitude.<<

      (3) Experts not always necessary. >>Subsection (b) does
          not require the plaintiff to produce expert testimony in
          every case. Cases arise in which the feasibility of a
          reasonable alternative design is obvious and understandable
          to laypersons and therefore expert testimony is
          unnecessary to support a finding that the product should
          have been designed differently and more safely.<< E.g.,
          mfr sells a stuffed animal with button eyes that can easily
          come off and choke a baby.

      (4) Prototypes not always necessary. >>In many cases, the
          plaintiff must rely on expert testimony. Subsection (b) does
          not, however, require the plaintiff to produce a prototype in
          order to make out a prima facie case. Thus, qualified expert
          testimony on the issue suffices, even though the expert has
          produced no prototype, if it reasonably supports the
          conclusion that a reasonable alternative design could have
          been practically adopted at the time of sale.<<

      (5) Allocation of proof. >>To establish a prima facie case of
          defect, the plaintiff must prove the availability of a
          technologically feasible and practical alternative design that
          would have reduced or prevented the plaintiff's harm. Given
          inherent limitations on access to relevant data, the plaintiff
          is not required to establish with particularity the costs and
          benefits associated with adoption of the suggested
          alternative design.<<

e) Defining the standard for RAD.
   Smith v. Louisville Ladder Co. (5C 2001)
   (Cable guy falls from ladder hooked over cable; says lack of
   enclosed latch on hook caused ladder to pitch him down. But how
   much proof is necessary to substantiate a RAD?)

   (Minority?) Rule: Where P introduces evidence that a safer
   alternative design would have prevented him from coming
   to harm by a product, there must be proof that the
   alternative he proposes is, in fact, safer. Here, P couldn’t
   quantify that his alternative design would have prevented his
   harm; moreover, his alternative might create other significant
   safety concerns.

      (1) TX statute (p174) v. RTT:PL.

             (a) RTT:PL: Look to ALL foreseeable risks and determine
                 whether RAD would have reduced them. It’s about
                 overall safety—can’t have a RAD that increases risks

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Lamar Graham / Products Liability (Prof. Twerski), S05

                under other circumstances. RTT:PL doesn’t deal with

            (b) TX: If a RAD could have avoided P’s particular injury,
                it’s defective. Heck, you can always come up with a
                RAD that would have avoided this particular P’s
                harm…but it might be more dangerous under other
                circumstances. TX also introduces causation into
                definition of defect, i.e. whether defect in question
                was producing cause.

     (2) What was bugging majority here? Insufficiency of evidence.
         TX statute requires “significant” reduction of P’s harm—
         that’s a causation question, not a defect question. (If it had
         been better, would it have reduced the risk? That’s a
         causation question.)

     (3) Dissent: Majority is requiring too much specificity: R/U
         analysis is looser, broader than that. General
         reasonableness standard, not mathematical certainty. These
         things should go to the jury.

            (a) Also, majority seems to demand prototype, testing,
                and proof it’s a better design. Dissent says that’s not
                necessary to make out a cause of action.

            (b) Twerski: RTT says you’re not req’d to build a
                prototype—you just need an expert to come in and
                say there’s a RAD and it’s better…and let the jury

     (4) How tough should we be on RAD? You don’t need a
         prototype…but by the same token, you can’t put on experts
         to whistle Dixie. In N, it’s rare that a court gives a DV on
         fact-sensitive issues. In a design defect case, you’re not
         saying that this injury resulted from N but that the whole
         product line of D is defective. The judgment being made is a
         knockout: everything in the product line is defective. Very
         powerful notion—thus, courts will use a heavier hand in
         determining what goes to a jury. If your expert hasn’t done
         his job, court is going to be reluctant to let it go to jury.

            (a) No prototype requirement v. Daubert. Among
                the first of the Daubert requirements is whether the
                thesis is testable. So do you need a prototype? That
                is, does Daubert run into teeth of RTT statement that
                you don’t need a prototype? Twerski thinks this is a
                crazy reading of Daubert—but it means you must
                read RAD concerns in line with worries about

            (b) The way it should be: If you have solid expert
                testimony and good R/U analysis…you shouldn’t have

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           Lamar Graham / Products Liability (Prof. Twerski), S05

                           to build your own product. Would be impossible in
                           case of, say, crashworthiness.

                (5) Bottom line: If you’re going to require RAD, how good does
                    your evidence have to be? More than a lick and a
                    promise…but less than a prototype.

      f)    Design cases: N…with distributor liability. When you make a
            bad R/U decision in designing a product, there’s a word for it:
            negligence. Seems like N lies just below the surface of S/L in
            design cases…. Though one aspect of S/L remains: there’s liability
            for everyone in the supply chain—even for retailers and
            wholesalers who had no role in designing product. But R and W are
            only liable if someone up the chain is liable…for what is more or
            less N.

      g) Bottom line: there’s no diff btw N and S/L in design defect cases?
         What would have a reasonable mfr done at the time of sale.

2. Mfr’s responsibility for post-sale increase in knowledge of risk.

      a) Majority: Mfr responsible even for unforeseeable risks.

      b) Minority: Foreseeability is a function of RU analysis.

3. Mfr’s responsibility for post-sale improvements in risk-avoidance.

      a) State-of-the-art as limitation on liability.
         Boatland of Houston v. Bailey (TX 1980)
         (Boater hits stump, is tossed overboard. Lack of kill switch causes
         boat to circle; prop hits boater, killing him.)

            Rule: Where P introduces evidence of a feasible RAD, D may
            rebut with evidence that his product was state of the art.
            “When the Baileys introduced evidence of the use of kill switches,
            Boatland was entitled to introduce rebuttal evidence of nonuse at
            the time of manufacture due to limitations imposed by the state of
            the art. Evidence offered under these circumstances is offered to
            rebut P’s evidence that a safer alternative was feasible and is
            relevant to defectiveness. It was not offered to show that a custom
            existed or to infer the D’s compliance therewith.”

            Dissent: Kill switch was not state of the art—it was, in fact, old
            technology. Don’t confuse industry custom with state of the art.

      b) RTT:PL, Sec. 2, Comment d. >>This Section states that a design
         is defective if the product could have been made safer by the
         adoption of a reasonable alternative design. If such a design could
         have been practically adopted at time of sale and if the omission
         of such a design rendered the product not reasonably safe, the
         plaintiff establishes defect under Subsection (b). When a defendant
         demonstrates that its product design was the safest in use at the
         time of sale, it may be difficult for the plaintiff to prove that an

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        Lamar Graham / Products Liability (Prof. Twerski), S05

          alternative design could have been practically adopted. The
          defendant is thus allowed to introduce evidence with regard
          to industry practice that bears on whether an alternative
          design was practicable. Industry practice may also be relevant
          to whether the omission of an alternative design rendered the
          product not reasonably safe. While such evidence is admissible, it
          is not necessarily dispositive. If the plaintiff introduces expert
          testimony to establish that a reasonable alternative design
          could practically have been adopted, a trier of fact may
          conclude that the product was defective notwithstanding
          that such a design was not adopted by any manufacturer, or
          even considered for commercial use, at the time of sale.<<

              (1) Majority: S/O/A evidence admissible.

              (2) Minority: S/O/A evidence not admissible.

       c) Subsequent remedial measures. Some jurisidictions allow in
          evidence of subsq remedial measures b/c there’s no question of
          culpability involved. But FRE 407 says such measures are not
          evidence of culpability…or of mfr or design defect. Not only is it
          prejudicial, there’s a big public policy issue: Allowing such evidence
          in would discourage mfrs from making safety improvements,
          because such improvements could be used against them. (Twerski:
          Knowing now that defective design is essentially N…subsq remedial
          measures shouldn’t get in.)

              (1) NJ does allow SRM in—NY doesn’t.

              (2) Third-party modifications. Not covered by exclusionary

              (3) If you’re a P who can’t get SRM in under 407 or state
                  rule—what to do? Bring up the feasibility of change…and
                  intro exactly the change that D made. Then if D disputes
                  it…it comes in to rebut lack of feasibility (which is to say
                  tech feasibility—not econ or logical feasibility).

4. Mfr’s responsibility for post-sale shifts in attitudes toward risk.
   What do do where there’s a long gap—10, 20, 30 years between sale
   and harm…. Lots of products that were made in the era of the Patent
   Danger Rule are still in use, particularly heavy equipment. Must mfr’s be
   liable? Reasonable expectations…?

5. Should RAD claims go to the jury on both N and S/L grounds?
   Lecy v. Bayliner Marine Corp. (Wash CoA 1999)
   (Passenger falls against cabin door of charter boat during heavy swells.
   Door and passenger go overboard; passenger drowns. On S/L claim, jury
   found door not defective in design or mfr…but maker nonetheless liable
   for negligent design. Kosher?)

   Rule: Where a jury’s answers on special interrogatories conflict, a court
   will try to harmonize them. However, “[f]ederal and state case law in

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        Lamar Graham / Products Liability (Prof. Twerski), S05

   other jurisdictions is generally in agreement that a jury's rejection of
   strict liability for design defect precludes a finding of negligent
   design….” In Lambert, an analogous case from CA, for example, “in
   absence of any defect…alleged [safety-testing] omissions could not have
   made any difference. Testing cannot reveal a defect that does not
   exist, and a manufacturer cannot be negligent for failing to warn
   about a nonexistent defect….” Note, though: “We recognize that
   where, for instance, the jury is presented with a strict liability
   design defect claim and a negligent manufacture claim, a jury's
   rejection of strict liability may not preclude its finding of
   negligence. Because the two bases of liability are separate and do not
   necessarily overlap, the jury may properly reject strict liability, yet find

      a) Would be an inconsistent verdict even if the other way around:
         Under R/U analysis, you ought to end up with the same answer,
         regardless of the theory of liability. (Note that this mutual
         exclusivity holds true only for R/U analysis: difft rules may apply
         where the test is consumer expectations.)

      b) See RTT:PL 2(b). R/U balancing is req’d for determination of
         whether a RAD was available. But RTT:PL makes no
         requirements about theory of liability—N, S/L or implied
         warranty of merchantability are all fair game. (Twerski: If
         you’re trying a design defect case, Twerski says call it N rather
         than S/L, because it’s the same underlying question, and juries are
         more likely to punish a blameworthy D rather than a defective

6. Can a warning substitute for a RAD?
   Uniroyal Goodrich Tire Co. v. Martinez (TX 1998)
   (Mechanic injured when he mounts too-small tire on too-big rim, causing
   explosion. Tire had prominent warning.)

   Holding/Rule: Court rejects RST position that “where a warning is given,
   the seller may reasonably conclude that it will be read and heeded.”
   Instead, it adopts the RTT:PL, which says that “when a safer design
   can reasonably be implemented and risks can reasonably be
   designed out of a product, adoption of the safer design is required
   over a warning that leaves a significant residuum of risk….
   However, when an alternative design to avoid risks cannot reasonably be
   implemented, adequate instructions and warnings will normally be
   sufficient to render the product reasonably safe…. Warnings are not,
   however, a substitute for the provision of a reasonably safe
   design.” Rather, a warning is only one of the factors in the R/U analysis
   employed to determine whether a product’s design is reasonably safe.

      a) Old RST 402a, Comment j. (superceded by RTT:PL): Seller may
         assume that a warning will be read and heeded. But, of course,
         you can’t. Remember patent-danger rule—problem with it is that
         the danger may be obvious, but people will still encounter it. The
         more obvious the danger, under R/U analysis, the less likely
         the harm—but you can’t get rid of it altogether. Ditto a

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        Lamar Graham / Products Liability (Prof. Twerski), S05

          warning: All it will do is reduce the risk of harm, not eliminate it.
          Better to redesign up the point where R/U analysis tells
          you’ve reached the best you can do; and for any leftover
          irreducible risk, you warn so as to make it negligible.

7. R/U balancing w/o RAD requirement.
   Vautour v. Body Masters Sports Industries (NH 2001)
   (P injured by weightlifting machine. P has expert but adduces no RAD at

   Rule: “…While proof of an alternative design is relevant in a design
   defect case, it should be neither a controlling factor nor an
   essential element that must be proved in every case.… The rigid
   prerequisite of a RAD places too much emphasis on one of the many
   possible factors that could potentially affect the R/U analysis.”

      a) Twerski: Bad decision. If RAD is only a factor, it can be
         disregarded. And if you allow a P to say that a product can’t be
         made better and he offers no RAD, then you’re essentially saying
         that the product shouldn’t be made at all. Major repercussions.

      b) Product-category liability. Are there circumstances under which
         a product could/should be considered defective—or rather, that
         liability should attach—even in the absence of R/U analysis. Would
         have to be pretty rare. How about motorcycles? Does the utility
         outweigh the risk? Can you see any court saying the motorcycles
         are unreasonably dangerous per se? Cigarettes…alcohol…econo

             (1) RTT:PL, Sec. 2(b), Comment d on general
                 considerations re product defects. “…Common and
                 widely distributed products such as alcoholic beverages,
                 firearms, and above-ground swimming pools may be found
                 to be defective only upon proof of the requisite conditions in
                 Subsection (a), (b), or (c). If such products are defectively
                 manufactured or sold without reasonable warnings as to
                 their danger when such warnings are appropriate, or if
                 reasonable alternative designs could have been adopted,
                 then liability under §§ 1 and 2 may attach. Absent proof
                 of defect under those Sections, however, courts have
                 not imposed liability for categories of products that
                 are generally available and widely used and
                 consumed, even if they pose substantial risks of
                 harm. Instead, courts generally have concluded that
                 legislatures and administrative agencies can, more
                 appropriately than courts, consider the desirability of
                 commercial distribution of some categories of widely
                 used and consumed, but nevertheless dangerous,

             (2) RTT:PL, Sec. 2(b), Comment e re possibility of
                 manifestly unreasonable design. “Several courts have
                 suggested that the designs of some products are so

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Lamar Graham / Products Liability (Prof. Twerski), S05

        manifestly unreasonable, in that they have low social utility
        and high degree of danger, that liability should attach even
        absent proof of a reasonable alternative design. In large
        part the problem is one of how the range of relevant
        alternative designs is described. For example, a toy gun
        that shoots hard rubber pellets with sufficient velocity to
        cause injury to children could be found to be defectively
        designed within the rule of Subsection (b). Toy guns
        unlikely to cause injury would constitute reasonable
        alternatives to the dangerous toy. Thus, toy guns that
        project ping-pong balls, soft gelatin pellets, or water might
        be found to be reasonable alternative designs to a toy gun
        that shoots hard pellets. However, if the realism of the
        hard-pellet gun, and thus its capacity to cause injury, is
        sufficiently important to those who purchase and use such
        products to justify the court's limiting consideration to toy
        guns that achieve realism by shooting hard pellets, then no
        reasonable alternative will, by hypothesis, be available. In
        that instance, the design feature that defines which
        alternatives are relevant -- the realism of the hard-
        pellet gun and thus its capacity to injure -- is
        precisely the feature on which the user places value
        and of which the plaintiff complains. If a court were
        to adopt this characterization of the product, and
        deem the capacity to cause injury an egregiously
        unacceptable quality in a toy for use by children, it
        could conclude that liability should attach without
        proof of a reasonable alternative design. The court
        would declare the product design to be defective and
        not reasonably safe because the extremely high
        degree of danger posed by its use or consumption so
        substantially outweighs its negligible social utility
        that no rational, reasonable person, fully aware of the
        relevant facts, would choose to use, or to allow
        children to use, the product.

     (3) Where S/L meets absolute L.
         O’Brien v. Muskin Corp. (NJ 1983)
         (Diving accident in slippery-bottomed above-ground pool.)

        Holding/Rule: Where there’s no liability for defect, there
        may still be absolute liability for a category. “The evaluation
        of the utility of a product also involves the relative need for
        that product; some products are essentials, while others are
        luxuries. A product that fills a critical need and can be
        designed in only one way should be view differently than a
        luxury item. Still other products, including some for
        which no alternative exists, are so dangerous and of
        such little use that under the R/U analysis, a
        manufacturer would bear the cost of liability of harm
        to others…. To establish sufficient proof to compel
        submission of the issue to the jury for appropriate fact-
        finding under R/U analysis, it was not necessary for P to

                    Page 36 of 57
Lamar Graham / Products Liability (Prof. Twerski), S05

        prove the existence of alternative, safer designs. Viewing
        the evidence in the light most favorable to the P, even if
        there was no alternative methods of making bottoms for
        above-ground pools, the jury might have found that the risk
        posed by the pool outweighed its utility.

        Dissent: Court has found S/L w/o defect, in effect
        transforming S/L into absolute L. For shame. Finding
        the makers of whole categories of products absolutely liable
        has enormous economic implications and should be the
        purview of the legislature, not juries. S/L for product design
        should be about defect; public policy is for legislators.

            (a) P/L exists at the margin between tort and
                contract. There’s a market out there: At what point
                do the courts step in to say there oughta be a better
                way, people deserve protection.

            (b) NJ subsequently (and explicitly) overruled
                O’Brien by making RAD a statutory requirement
                in design-defect cases.

     (4) Henderson & Twerski, “The Rejection of Liability Without
         Defect.” “Defect” should not be construed too broadly
         or it becomes meaningless. S/L for P/L should focus
         on the marginal, incremental differences between the
         product on trial and the RAD. Leave category liability to
         the statehouse.

     (5) Incremental risks and benefits.
         Dawson v. Chrysler Corp. (US 1981)
         (Cop car spins out on rainy road, leaving cop a quad.
         Should cop car have been more crashproof by having steel-
         cage frame?)

        Holding/Rule: Compliance with federal highway-
        safety standards is not a bar to S/L for a design
        defect. P here adduced sufficient evidence of a RAD for a
        jury to find for him; ditto his causation arguments.
        However, “although we affirm the judgment of the district
        court, we do with uneasiness…. The effect of this provision
        [in fed law, allowing liability even where there’s compliance
        with federal standards] is that states are free, not only to
        create various standards of liability for auto mfrs with
        respect to design and structure, but also to delegate to the
        triers of fact in civil cases arising out of auto accidents the
        power to determine whether a particular product conforms
        to such standards.” Wake up, Congress!

            (a) At what point does RAD become MAD (Major Alt
                Design)—and therefore unreasonable? Adding
                300 lbs in safety features to your care might—
                might—save you, but 500 pounds sure would. But

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Lamar Graham / Products Liability (Prof. Twerski), S05

                judge might say, hey, a Lincoln is not a RAD for a
                Toyota; you’re really attacking the whole category of
                mid-sized cars. As you move from marginal change
                to significant change in order to shore up your
                case…you start walking a tightrope in terms of
                causation. Hard issue: When do you move from
                marginal design change to indictment of a whole

                    Page 38 of 57
                  Lamar Graham / Products Liability (Prof. Twerski), S05

          VII.     Defective Design: Consumer Expectations Test

A. Consumer Expectations as a sword to impose liability.
   Heaton v. Ford Motor Co. (Ore. 1967)
   (Pickup runs over big rock; wheel shears off 35 miles later, flips and injures
   driver. Did P present sufficient evidence for a jury to decide that this “rugged”
   vehicle disappointed consumer expectations?)

   Holding/Rule: Summary judgment for D affirmed. P didn’t provide any basis for
   determining reasonable consumer expectations. >>In the defective-product area,
   courts have already decided how strong products should be: they should be
   strong enough to perform as the ordinary consumer expects. In deciding what
   the reasonable consumer expects, the jury is not permitted to decide how strong
   products should be, nor even what consumers should expect, for this would in
   effect be the same thing. The jury is supposed to determine the basically
   factual question of what reasonable consumers do expect from the
   product. Where the jury has no experiential basis for knowing this, the
   record must supply such a basis. In the absence of either common
   experience or evidence, any verdict would, in effect, be the jury's opinion
   of how strong the product should be. Such an opinion by the jury would
   be formed without the benefit of data concerning the cost or feasibility of
   designing and building stronger products. Without reference to relevant
   factual data, the jury has no special qualifications for deciding what is

       1. Inference of defect under RTT:PL, Sec. 3 (Res Ipsa Loquitur) v.
          Consumer Expectations test here. “In the type of case in which there
          is no evidence, direct or circumstantial, available to prove exactly what
          sort of manufacturing flaw existed, or exactly how the design was
          deficient, a plaintiff may nonetheless be able to establish his right to
          recover, by proving that the product did not perform in keeping with the
          reasonable expectations of the user.” Sound pretty much like the same
          thing. Problem is…this ain’t really a res ipsa case…. Comment to Sec. 3
          notes that running over a big rock ain’t something from which you can
          draw an commonsense inference of defect.

                 a) Court here says that if you can’t draw an inference of defect,
                    there’s no basis for determining reasonable consumer
                    expectations. So…you need experts…on risk-utility (and RAD).

                 b) Two-step process for RIL-like C/E test:

                        (1) RTT:PL, Sec. 3: Res Ispa (or Consumer Expectations, if
                            you want). Twerski: C/E is just RIL by another name. But
                            give it another name, and you’re just asking for problem.

                        (2) If not RIL, then Sec 2b applies.

B. “Modified” Consumer Expectations test.
   Potter v. Chicago Pneumatic Tool Co. (Conn. 1997)

                                       Page 39 of 57
                Lamar Graham / Products Liability (Prof. Twerski), S05

   (Groton shipwrights suffer neurological injuries over time from vibrating tools.
   Defective design?)

   Holding/Rule: >>In order to prevail in a design defect claim, the plaintiff must
   prove that the product is unreasonably dangerous. The court's definition of
   "unreasonably dangerous" is that the article sold must be dangerous to an extent
   beyond that which would be contemplated by the ordinary consumer, who
   purchases it with the ordinary knowledge common to the community as to its
   characteristics…. There may be instances involving complex product
   designs in which an ordinary consumer may not be able to form
   expectations of safety. In such cases, a consumer's expectations may be
   viewed in light of various factors that balance the utility of the product's
   design with the magnitude of its risks…. Under a modified formulation,
   the consumer expectation test would establish the product's risks and
   utility and the inquiry would then be whether a reasonable consumer
   would consider the product design unreasonably dangerous.<< RAD is a
   factor in this modified scheme, but only a factor; it is not necessarily dispositive.
   Here, based on the foregoing analysis, there was expert evidence to support a
   jury finding of defect.

      1. Even this kooky court understood that you can’t call all products liability
         res ipsa. So: Court recognizes that C/E may not apply in cases of complex
         design…in which case you’ll need R/U analysis (with RAD as a factor only,
         not dispositive) for complex designs. Might as well call it your great-
         grandma! Confusing! First year torts, Hand Formula: Burden of
         precautions = RAD. What you did v. what you should have done. Is what
         you should have done a factor? No, it’s the conclusion; it’s the answer to
         the Q of whether you’re negligent.

      2. What role does C/E play in a R/U test? See Comment g (p254). C/E are
         not irrelevant—they go to the foreseeability and frequency of harm.
         They’re a factor in R/U analysis.

      3. The UCC and Consumer Expectations. Implied warrant of
         merchantability hews to Consumer Expectations, not RAD.

              a) IMPORTANT: In Denny v. Ford Motor Co. (p.257), NY says there
                 are two ways to try a design-defect case, (1) R/U with RAD or (2)
                 2-314 of the UCC, the implied warrant of merchantability,
                 which hews to a Consumer Expectations standard, because
                 it’s about contract.

                     (1) If you proceed under the warrant, all the statutory
                         issues apply; you’re stuck with the Code: SOL, waivers,
                         disclaimers, notice of breach, etc.

                     (2) New revise of UCC takes out the implied warrant of
                         merchantability for personal injury cases: Then it’s
                         tort. Bye-bye historical relic.

C. Two-prong standard for determining design defect.
   Soule v. GM Corp. (Cal. 1994)
   (Car wreck collapses wheel strut in Camaro, forcing wheel into passenger

                                     Page 40 of 57
                Lamar Graham / Products Liability (Prof. Twerski), S05

   compartment, breaking driver’s ankles. If product performance is too complex for
   determination by ordinary experience, does Consumer Expectations test apply?)

   Holding/Rule: >>There are two alternative ways to prove a design defect in a
   product, each appropriate to its own circumstances. If a product is subject to
   the ordinary consumer expectation test of design defect, then ordinary
   knowledge as to the product's characteristics may permit an inference
   that the product did not perform as safely as it should. If the facts permit
   such a conclusion, and if the failure resulted from the product's design, a finding
   of defect is warranted without any further proof. However, a complex product,
   even when used as intended, may often cause injury in a way that does
   not engage its ordinary consumers' reasonable minimum assumptions
   about safe performance. When this is so, the alternative test for design
   defect must be used. Under that test, a product is defective if its design
   embodies excessive preventable danger, that is, it is defective unless the
   benefits of the design outweigh the risk of danger inherent in such
   design. But this determination involves technical issues of feasibility, cost,
   practicality, risk, and benefit which are impossible to avoid. In such cases, the
   jury must consider the manufacturer's evidence of competing design
   considerations, and the issue of design defect cannot fairly be resolved by
   standardless reference to the expectations of an ordinary consumer.<< Here, the
   trial court gave the wrong jury instruction (Consumer Expectations), but it was
   harmless because the jury undoubtedly engaged in R/U analysis anyway.

D. Consumer Expectations as shield against liability.
   Halliday v. Sturm, Ruger & Co. (Md. 2002)
   (3-yr-old kills self with Dad’s gun, which was stored in contravention of all safety
   instructions/warnings. Is a gun with which a child can accidentally kill himself
   necessarily defective under a Consumer Expectations regime?)

   Holding/Rule: >>In determining whether a product is defective, in its design or
   manufacture, Maryland cases have generally applied the "consumer expectation"
   test. A handgun manufacturer or marketer cannot be held liable under this
   theory…. A handgun is not defective merely because it is capable of being used
   during criminal activity to inflict harm. A consumer would expect a handgun to be
   dangerous, by its very nature, and to have the capacity to fire a bullet with
   deadly force…. The risk-utility test is only applied when something goes
   wrong with a product…. The risk/utility test cannot be extended to
   impose liability on the maker or marketer of a handgun which has not
   malfunctioned…. [All of which is to say that] the holdings in Kelley, that
   the risk-utility test does not apply to a design defect unless the product
   malfunctions in some way and that a handgun does not malfunction
   when it shoots a bullet into a person in whose direction it is fired, remain
   the law of Maryland…. Common law principles should not be changed contrary
   to the public policy of Maryland set forth by the General Assembly of

       1. The teddy bear of C/E turns out to be a grizzly here. Once you say
          there’s only a C/E test, if the product meets C/E, D wins. Despite the fact
          that there were plenty of RAD candidates, the gun here performed
          precisely as expected by gun buyers.

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        Lamar Graham / Products Liability (Prof. Twerski), S05

2. Twerski gloss: The MD court didn’t want to impose liability on gun
   makers was because it was worried about legislative override
   (which they did in a previous case wherein the court found Sat-nite
   specials were barred by category liability). If this case was allowed to
   proceed, there would be tons of RAD cases against gun mfrs. So the court
   applied C/E here to make sure it was a loser.

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               Lamar Graham / Products Liability (Prof. Twerski), S05

                      VIII. Special Duty Problems

A. Twerski overview…

      1. No-duty rule w/ rescue. In a standard N case, if you hand someone
         your cell phone and tell ‘em to call 911, there’s no duty, absent a special
         relationship. Not dialing is unreasonable…but we’re not ready to impose a
         duty on someone who has no special relationship with V.

      2. No duty to parent of kid you run down in front of said parent.
         Emotional harm to the parent is certainly foreseeable, but we have signif
         policy reasons for not extending tort liability that far.

      3. No duty to trespassers.

      4. So…no surprise that even in PL law, we have no-duty rules (where
         the issue of duty is paramount).

             a) Early taste of it: Patent Danger Rule. If it’s open and obvious
                you don’t have to design against it. But, that’s been supplanted,
                because you still have people getting hurt by obvious dangers.
                Unwitting. Instinctive behaviors. Recklessness.

B. Deference to markets.
   Linegar v. Armour of America (8C 1990)
   (MO trooper shot by David Tate. Body armor stopped five slugs, but a mortal
   sixth entered his unprotected underarm area. Defective design?)

   Holding/Rule: >>We have no difficulty in concluding as a matter of law that the
   product at issue here was neither defective nor unreasonably dangerous. Trooper
   Linegar's protective vest performed precisely as expected and stopped all of the
   bullets that hit it. No part of the vest nor any malfunction of the vest caused
   Linegar's injuries. The vest was designed to prevent the penetration of bullets
   where there was coverage, and it did so; the amount of coverage was the buyer's
   choice. The Missouri Highway Patrol could have chosen to buy, and Armour could
   have sold the Patrol, a vest with more coverage; no one contests that. But it is
   not the place of courts or juries to set specifications as to the parts of
   the body a bullet-resistant garment must cover. A manufacturer is not
   obliged to market only one version of a product, that being the very
   safest design possible. If that were so, automobile manufacturers could
   not offer consumers sports cars, convertibles, jeeps, or compact cars. All
   boaters would have to buy full life vests instead of choosing a ski belt or
   even a flotation cushion. Personal safety devices, in particular, require
   personal choices, and it is beyond the province of courts and juries to act
   as legislators and preordain those choices.<<

      1. PL is paternalistic law: I know what’s good for you…. Consumer choice
         seems to conflict with that. Here, we’re at the exact interface between
         contract and tort. Traditionally, tort is king, trumps contract. But here
         contract seems to be trumping tort: there are areas where we are going

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               Lamar Graham / Products Liability (Prof. Twerski), S05

          to have to allow consumer choice. If this had been allowed to go to a jury,
          it may well have found the wrap-around vest a RAD. So the court decided
          to nip that possibility in the bud by declaring no duty as a matter of law.

      2. Incremental improvement. P might/should have argued, instead of
         giving me a wraparound, give me an extra inch of coverage. Because if
         there was an extra inch of protection, the vest might have worked.
         Problem: You can make your case very strong on causation—five-inch
         wrap-around would be terrific—but you’d lose on defect: now it’s a whole
         new product. Thus, the more marginal the increment of safety, the better
         off you are in making your case.

      3. This is not a category liability case—it’s a no-duty case. Court has to
         decide as a matter of policy whether its going to allow mfrs to make more
         than one kind of vest.

C. Optional safety features.
   Scarangella v. Thomas Built Buses (NY 1999)
   (School bus w/o backup alarm runs down a bus driver. Was lack of optional alarm
   a defect?)

   Holding/Rule: Re claims that failure to make an optional safety feature
   standard constitutes a defective design… >>[a] product is not defective
   where the evidence and reasonable inferences therefrom show that: (1)
   the buyer is thoroughly knowledgeable regarding the product and its use
   and is actually aware that the safety feature is available; (2) there exist
   normal circumstances of use in which the product is not unreasonably
   dangerous without the optional equipment; and (3) the buyer is in a
   position, given the range of uses of the product, to balance the benefits
   and the risks of not having the safety device in the contemplated
   circumstances of the buyer's use of the product. In such case, the buyer,
   not the manufacturer, is in the superior position to make the risk-utility
   assessment, and a well-considered decision by the buyer to dispense with
   optional safety equipment will excuse the manufacturer from liability. When the
   factors are not present, there is no justification for departure from the accepted
   rationale imposing strict liability upon the manufacturer because it is in the
   superior position to discover any design defects.<<

D. Judicial deference to safety statutes and administrative regs.

      1. RTT:PL § 4 Noncompliance and Compliance with Product Safety
         Statutes or Regulations

          In connection with liability for defective design or inadequate instructions
          or warnings:

            (a) a product's noncompliance with an applicable product safety statute
          or administrative regulation renders the product defective with respect to
          the risks sought to be reduced by the statute or regulation; and

            (b) a product's compliance with an applicable product safety statute or
          administrative regulation is properly considered in determining whether
          the product is defective with respect to the risks sought to be reduced by

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               Lamar Graham / Products Liability (Prof. Twerski), S05

          the statute or regulation, but such compliance does not preclude as a
          matter of law a finding of product defect.

             a) RTT:PL, Sec. 4, Comment d. Per Sec. 4(a), noncompliance with
                applicable standards amounts to N per se.

             b) RTT:PL, Sec. 4, Comment e. Applicable standards are only
                minimum standards. Compliance therewith is therefore relevant
                but not dispositive vis-à-vis determination of a design defect.

      2. Twerski...

             a) Now we’re no longer dealing with duty. We’re talking about
                standard of care. If you violate a safety reg, it’s essentially N per
                se. We won’t ask whether you were acting reasonably under the

                     (1) Exception. You’re not N per se, even if you’re in violation of
                         the statute, if you weren’t in the class of people who were
                         supposed to be protected. E.g., you’re doing 35 in a 25
                         zone, but you’re doing so because you’re taking a heart-
                         attack victim to the hospital…. Or you’re walking on the
                         highway, facing away from traffic. But you do so because
                         it’s too dangerous to walk on the other side.

E. High-profile no-duty cases. Questions of Duty with a big D.

      1. Alleged negligent marketing of handguns.
         Hamilton v. Beretta USA (NY 2001)
         (Class action based on mkt-share liability against gun makers for dumping
         guns in lax South, where they can easily find their way into criminals’

          Holding/Rule: >>Persons killed or injured by illegally obtained
          handguns are not owed a duty by handgun manufacturers to
          exercise reasonable care in the marketing and distribution of their
          handguns. Imposition of such a duty would potentially expose them to
          limitless liability. The pool of possible plaintiffs is very large--potentially,
          any of the thousands of victims of gun violence. Further, the connection
          between the manufacturers, the criminal wrongdoers and plaintiffs is
          remote, running through several links in a chain consisting of at least the
          manufacturer, the federally licensed distributor or wholesaler, and the first
          retailer. The chain most often includes numerous subsequent legal
          purchasers or even a thief. Such broad liability, potentially
          encompassing all gunshot crime victims, should not be imposed
          without a more tangible showing that the manufacturers were a
          direct link in the causal chain that resulted in the plaintiffs'
          injuries, and that the manufacturers were realistically in a position
          to prevent the wrongs…. [Furthermore, a] duty may not be predicated
          merely because it is foreseeable that persons may be killed or injured by
          defendants' lethal products. Plaintiffs, relatives of people killed with illegal
          handguns or people so injured, have not shown that a change in
          marketing techniques would likely have prevented their injuries. A duty

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               Lamar Graham / Products Liability (Prof. Twerski), S05

          may not be imposed on a products liability theory since defendants'
          products are not defective and plaintiffs have not asserted a defective
          warnings claim. Actions against handgun manufacturers may not be
          analogized to cases involving hazardous materials or unsupervised access
          by children to hazardous substances…. [Finally, even if] liability [somehow
          was] found to exist, it could not be apportioned on a market share basis
          since guns are not identical, fungible products and plaintiffs have never
          asserted that defendants' marketing techniques were uniform. The
          distribution and sale of every gun is not equally negligent, nor does it
          involve a defective product. Thus, a manufacturer's share of the national
          handgun market does not necessarily correspond to the amount of risk
          created by its alleged tortious conduct. While it may be difficult to prove
          precisely which manufacturer caused any particular plaintiff's injuries
          since crime guns are often not recovered, inability to locate evidence does
          not alone justify the extraordinary step of applying market share

      2. Foreseeability of terrorist attacks.
         In Re Sept. 11 Litigation (SDNY 2003)
         (Are Ps’ claims that Boeing 757 cockpit doors were defective because they
         didn’t prevent terrorists from taking over 9/11 planes sufficient to avoid

          Rule: Terrorists’ taking over planes was foreseeable, even if their using
          the jets as WMDs was not. Consequently, terrorist actions are not
          superceding or intervening causes sufficient to support dismissal as a
          matter of law.

             a) If you get past the duty issue in this case, you can make out the
                other elements. But Twerski still has a problem with this case: do
                you have a duty to protect against WWIII? If NY law, not Va law,
                controlled here, there’s unlikely to be a duty. This was a planned
                attack on the US by a large group, to make multiple attacks
                simultaneously. Was the way to stop 9/11 to get Boeing to fix its
                cockpit doors? Lollapalooza duty question. Even if you get past the
                duty question, there’s causation: Was the cockpit door latch the
                cause of 9/11. Twerski thinks putting 9/11 in the context of PL law
                trivializes 9/11—this was about war, not about a lock on a door.

             b) What if liability were limited to the people on the plane? On the
                grounds that an ordinary, everyday hijacking would have
                endangered only those on the plane. Much tougher prox cause
                question: You could foresee the harm, not the manner of the

F. Misuse, alteration and modification.
   Morguson v. 3M Co. (Ala. 2003)
   (Technicians’ improper installation of valve in heart-lung machine—and his
   subsequent lying to surgeon about his error—leads of death of heart-bypass
   patient. Is machine’s maker strictly liable?)

   Holding/Rule: >>[P] failed to meet her burden to show a genuine issue of
   material fact as to whether the products were defective and unreasonably

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            Lamar Graham / Products Liability (Prof. Twerski), S05

dangerous when they were sold and whether their condition proximately caused
the decedent's death. It was clearly not foreseeable that the products
would be improperly assembled, that the perfusionist would lie about
checking the assembly, and that the surgical team would cut the one-
way safety valve out of the vent tubing. The removal of the safety valve
amounted to an intervening cause that broke any causal chain between the
manufacturers and the decedent's death.<<

   1. Rationale: A shovel is not a doorstop; a stove door is not a step
      ladder. Misuse is either a defect question, a prox cause question or a duty
      question. There’s not a special doctrine of misuse. If the contention is that
      you should have had a pump that wouldn’t have prevented technician
      from doing what he did—even through N—why isn’t that a RAD? Because
      even if this was a defective pump, or could have been made better, the
      conduct of the technician was so bad, you can’t make out prox cause.

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                Lamar Graham / Products Liability (Prof. Twerski), S05

                            IX. Failure to Warn

A. Design defect v. Failure To Warn. In many ways, FTW is hardest cause of
   action to defend against With design defects, you can make incremental
   changes...but you’ll also run into problems of causation. Also, once you make a
   design change, it’s going to have problems for the product in general: more
   expensive, harder to use, heavier, pick one. Hard to come up with a design
   change that’s for one P only. But with FTW, while there may be 100 possible
   risks, P wants only to have been warned against the injury he suffered. In a
   warning case, the cause of action can be tailored to the P (as opposed to the off-
   the-rack quality of design defects).

B. Basic duty to warn.

       1. The general rule.
          RTT:PL, § 2 Categories of Product Defect

          A product is defective when, at the time of sale or distribution, it contains
          a manufacturing defect, is defective in design, or is defective because of
          inadequate instructions or warnings. A product:…

          (c) is defective because of inadequate instructions or warnings when the
          foreseeable risks of harm posed by the product could have been reduced
          or avoided by the provision of reasonable instructions or warnings by the
          seller or other distributor, or a predecessor in the commercial chain of
          distribution, and the omission of the instructions or warnings renders the
          product not reasonably safe….

              a) Comment i. Inadequate instructions or warnings. Commercial
                 product sellers must provide reasonable instructions and warnings
                 about risks of injury posed by products. Instructions inform
                 persons how to use and consume products safely. Warnings alert
                 users and consumers to the existence and nature of product risks
                 so that they can prevent harm either by appropriate conduct
                 during use or consumption or by choosing not to use or consume.
                 In most instances the instructions and warnings will originate with
                 the manufacturer, but sellers down the chain of distribution must
                 warn when doing so is feasible and reasonably necessary. In any
                 event, sellers down the chain are liable if the instructions and
                 warnings provided by predecessors in the chain are inadequate.
                 See Comment o. Under prevailing rules concerning allocation of
                 burdens of proof, plaintiff must prove that adequate instructions or
                 warnings were not provided. Subsection (c) adopts a
                 reasonableness test for judging the adequacy of product
                 instructions and warnings. It thus parallels Subsection (b), which
                 adopts a similar standard for judging the safety of product designs.

       2. No duty to warn of obvious, generally known risks.
          Jamieson v. Woodward & Lothrop (DC Cir 1957)
          (Fat lady injured when rubber-band exerciser slips off her foot, snaps into

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        Lamar Graham / Products Liability (Prof. Twerski), S05

   her face and wrecks her retina. Should mfr have warned?)

   Rule: >>Where a manufactured article is a simple thing of universally
   known characteristics, not a device with parts or mechanism, and the only
   danger is not latent but obvious to any possible user; if the article does
   not break or go awry, but injury occurs through a mishap in
   normal use, the article reacting in its normal and foreseeable
   manner; then the manufacturer is not liable for negligence. If a
   man drops an iron dumbbell on his foot, the manufacturer is not
   liable. The case at bar falls within the category just described.<<

      a) Should P have to proffer the warning that should have been given?
         Courts are divided.

      b) In warnings cases, there’s a presumption that the warning would
         have been heeded, and D has to rebut it. Yowzah!

      c) The best of intentions…. If no warning at all, then you can claim
         obvious danger; but if you give a warning, you can’t fall back on
         that and may wind up defending the adequacy of your warning.

3. No duty to warn of unknowable risks.
   Anderson v. Owens-Corning Fiberglas Corp. (Cal. 1991)
   (Asbestos case at Long Beach Navy Yard. P argues D knew or should have
   known of danger and knew the gen’l public didn’t know. D uses state-of-
   art defense….)

   Rule: >>In sum, the foregoing review of the decisions of the Courts of
   Appeal persuades us that California is well settled into the majority view
   that knowledge, actual or constructive, is a requisite for strict liability for
   failure to warn and that Brown, supra, 44 Cal.3d 1049, if not directly, at
   least by implication, reaffirms that position. However, even if we are
   implying too much from the language in Brown (supra, 44 Cal.3d 1049),
   the fact remains that we are now squarely faced with the issue of
   knowledge and knowability in strict liability for failure to warn in other
   than the drug context. Whatever the ambiguity of Brown, we hereby
   adopt the requirement, as propounded by the Restatement Second
   of Torts and acknowledged by the lower courts of this state and
   the majority of jurisdictions, that knowledge or knowability is a
   component of strict liability for failure to warn.<<

      a) What the Calif court was not willing to do: If you knew then what
         you know now, would you have mkt’d the product the same way?
         See Beshada v. Johns-Manville, wherein NJ went the route Calif
         refused to go: Foreseeability doesn’t matter—D loses. Then, two
         years later, an Rx drug case came along. Compromise: California
         rule for Rx drugs. No S/L—N. But if P can prove D had knowledge,
         D has to disprove.

      b) Majority: Will not impute knowledge. P bears burden of proving
         that D had knowledge.

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        Lamar Graham / Products Liability (Prof. Twerski), S05

       c) Rx drugs and vaccines. Irreducible risk. You either take the
          med or you don’t; and if you do, you either have a bad reaction or
          you don’t. But you don’t know until you take it. Function of risk info
          is not to make product safer—rather, it’s to give you a choice
          whether you want to use the med or not.

4. No diff btw N and S/L in FTW.
   Olson v. Prosoco (Iowa 1994)
   (Bricklayer blinded when bung pops out of keg of volatile chemicals about
   which he wasn’t warned.)

   Rule: >>We fail to see any distinction between negligence and
   strict liability in the analyses of those jurisdictions injecting a
   knowledge requirement into their strict liability/failure to warn
   equation. The standard applied by these "strict liability" jurisdictions is
   exactly the same in practice as holding defendants to an expert standard
   of care under a negligence theory. The burden on plaintiffs is the same.
   They must prove a defendant knew or should have known of potential
   risks associated with the use of its product, yet failed to provide adequate
   directions or warnings to users. With regard to those jurisdictions
   imputing to defendants knowledge of its product's propensity to injure as
   it did, we have refused in the past to impose a duty upon manufacturers
   to warn of unknowable dangers. *** The relevant inquiry therefore is
   whether the reasonable manufacturer knew or should have known
   of the danger, in light of the generally recognized and prevailing
   best scientific knowledge, yet failed to provide adequate warning
   to users or consumers.<<

5. Informed choice warnings.

       a) Risk-reduction warnings v. “informed choice.” Risk-reduction
          warnings tell you how to mitigate a risk through wise use.
          Informed choice is for stuff like Rx drugs, where there’s a
          quantifiable risk of harm that can be avoided only by not using the

       b) In an informed-choice situation, is the product
          unreasonably safe w/o warning? No. See RTT:PL 2(c). Product
          is no safer with or without warning. It’s about a value judgment:
          Do you want to use or not use? Typically informed-choice warnings
          are about drugs or toxics…but it’s branching out into other areas
          (e.g., SUV rollover case).

       c) RTT:PL 2(c ), Comment i.

          In addition to alerting users and consumers to the existence and
          nature of product risks so that they can, by appropriate conduct
          during use or consumption, reduce the risk of harm, warnings also
          may be needed to inform users and consumers of nonobvious and
          not generally known risks that unavoidably inhere in using or
          consuming the product. Such warnings allow the user or consumer
          to avoid the risk warned against by making an informed decision
          not to purchase or use the product at all and hence not to

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               Lamar Graham / Products Liability (Prof. Twerski), S05

                 encounter the risk. In this context, warnings must be provided for
                 inherent risks that reasonably foreseeable product users and
                 consumers would reasonably deem material or significant in
                 deciding whether to use or consume the product. Whether or not
                 many persons would, when warned, nonetheless decide to use or
                 consume the product, warnings are required to protect the
                 interests of those reasonably foreseeable users or consumers who
                 would, based on their own reasonable assessments of the risks and
                 benefits, decline product use or consumption. When such warnings
                 are necessary, their omission renders the product not reasonably
                 safe at time of sale. Notwithstanding the defective condition of the
                 product in the absence of adequate warnings, if a particular user or
                 consumer would have decided to use or consume even if warned,
                 the lack of warnings is not a legal cause of that plaintiff's harm.
                 Judicial decisions supporting the duty to provide warnings for
                 informed decisionmaking have arisen almost exclusively with
                 regard to those toxic agents and pharmaceutical products with
                 respect to which courts have recognized a distinctive need to
                 provide risk information so that recipients of the information can
                 decide whether they wish to purchase or utilize the product….

             d) Informed choice v. informed consent in med mal context.
                Very close analogy. Nothing wrong with doc’s conduct—it was
                wrong not to inform of the risk. Same thing with the product—it’s
                fine…but did the P get enough risk info to decide whether to use it.

             e) Informed choice and causation. Some argue that there ought to
                be a rebuttable presumption of causation. Twerski disagrees. We’ll
                never know, e.g., whether Benedictin causes birth defects. But who
                cares? We ought to independently value a person’s right to
                autonomous choice. Plus, think about the emotional distress we’re
                inflicting on people who will never know whether they shouldn’t
                have taken the drug. That’s a real harm that ought to be valued.

      6. Stretching Failure to Warn.
         Liriano v. Hobart Corp. (2C 1999)
         (Meat cutter’s hand chewed off by grinder w/o safety guard—and no

          Rule: >> A warning can do more than exhort its audience to be careful. It
          can also affect what activities the people warned choose to engage in. And
          where the function of a warning is to assist the reader in making choices,
          the value of the warning can lie as much in making known the existence of
          alternatives as in communicating the fact that a particular choice is
          dangerous. It follows that the duty to warn is not necessarily
          obviated merely because a danger is clear.<<

C. Who must warn?
   Persons v. Salomon N.A. Inc. (Cal Ct App 1990)
   (Incompatible ski boots and bindings—should binding mfr have warned
   consumers thereof or only rental places?)

   Rule: >>When a manufacturer or distributor has no effective way to convey a

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               Lamar Graham / Products Liability (Prof. Twerski), S05

   product warning to the ultimate consumer, the manufacturer should be permitted
   to rely on downstream suppliers to provide the warning.<<

      1. Rx drugs and Learned Intermediary rule. If a drug is prescribed, the
         duty to inform is on the “learned intermediary,” the doc, not the mfr. As
         close to black letter as you get.

             a) Note: DTC drugs must carry consumer warnings.

D. Sufficiency of the D’s warning.

      1. Tesmer v. Rich Ladder Co. (MN Ct App 1986)
         (User sets up ladder incorrectly and its falls—was D’s 75-degree warning

          Rule: >>??<<

      2. New catechism for Failure to Warn.
         Lewis v. Sea Ray Boats (NV 2003)
         (Buyer of used boat is killed during sleep by CO1 in a/c generator.)

          Rule: The Pavlides test for jury instructions in FTW cases (borrowed from
          Texas). >>Nevada trial courts should advise juries that warnings in the
          context of products liability claims must be: (1) designed to
          reasonably catch the consumer's attention; (2) that the language
          be comprehensible and give a fair indication of the specific risks
          attendant to use of the product; and (3) that warnings be of
          sufficient intensity justified by the magnitude of the risk.<<

      3. Prudential considerations.
         Broussard v. Continental Oil Co. (LA 1983)
         (B&D drill throws sparks and causes NG explosion in sump hole, injuring
         carpenter. B&D’s manual said don’t use drill around gas….)

          Rule: Practicality must rule. Where there’s not enough space on the
          product to convey adequate warnings, an instruction to resort to user’s
          manual will suffice.

E. Post-sale Failure To Warn. Something happened after the sale that put the mfr
   on alert (as opposed to info that the mfr knew before the product hit the
   market). Assuming you learn of danger post-sale—so you weren’t N before sale—
   how do you communicate your knowledge to zillions of people?

      1. RST §10: Liability of Commercial Product Seller or Distributor.

          (a) One engaged in the business of selling or otherwise distributing
          products is subject to liability for harm to persons or property caused by
          the seller’s failure to provide a warning after the time of sale or
          distribution of a product if a reasonable person in the seller’s position
          would provide such a warning.

          (b) A reasonable person in the seller’s position would provide a warning
          after the time of sale if:

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               Lamar Graham / Products Liability (Prof. Twerski), S05

             1 – the seller knows or reasonably should know that the product poses
          a substantial risk of harm to persons or property; and
             2 – those to whom a warning might be provided can be identified and
          can reasonably be assumed to be unaware of the risk of harm; and
             3 – a warning can be effectively communicated to and acted on by
          those to whom a warning might be provided; and
             4 – the risk of harm is sufficiently great to justify the burden of
          providing a warning.

             a) ALL 4 of these risk/utility factors must be in place for the
                duty to warn post-sale exists.

      2. Statutes of Repose. E.g., “Six years after a product is sold, pre-sale
         failure to warns (defects at time of sale) are no longer necessary.” If it’s
         50 years after the time of sale, and SoR is in place, P will say, “I’m not
         suing for a new defect, but a failure to warn for the information the
         manufacturer found out about later; this is about what the manufacturer
         knew about, not 50 years ago, but today!”

F. Causation in Failure to Warn Cases. Design defect is about faulty hardware.
   FTW is about software: What would you have done if you had been warned?

      1. Johnson & Johnson case. Teen removes drip-cap from baby oil bottle.
         Baby inhales oil and dies. If bottle had had warning—“Do not
         aspirate”—would that have prevented the injury? P testified that the
         house had a strict rule against allowing the baby to have access to any
         dangerous materials…so court here said yes(!).

      2. Jacobs’ case. “Where a warning is given, the seller may reasonably
         assume that it will be read and heeded. If this is true, then when a
         warning is not given, it can be assumed that had it been given it would
         have been read.” Wrong! If a warning is given, you can’t assume that
         it will be read and heeded. Assuming the product is well designed, and
         a warning is given, liability does not follow, not because it is assumed the
         warning will be read, but because there is nothing else that can be done.
         Also, you can’t warn yourself out of a design defect case. Just because
         there is a warning, does not free a manufacturer of liability for a faulty

      3. Presumptions. P has presumption that warning would have saved him.
         BOP is on D to show that it wouldn’t. D must present only enough
         evidence to put the presumption in doubt. BOP then shifts back to P, who
         must prove the case.

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               Lamar Graham / Products Liability (Prof. Twerski), S05

                         X. Affirmative Defenses

A. Comparative Fault and Products Liability. Contributory negligence is not a
   complete bar on recovery. Most jurisdictions have comparative fault negligence.

       1. Forms:

              a) Pure Comparative Fault. P recovers for % of D’s liability—i.e., if
                 D is only 10% at fault, P gets 10%.

              b) Modified Comparative Fault:

                     (1) 50/50 rule. If P is 50% at fault or more, P cannot recover.

                     (2) 51/49 rule. If P’s fault is greater than D’s, P cannot
                         recover; if P is even with D, P can still recover.

       2. Should P’s fault reduce D’s liability?

              a) Technical question: How can you have comparative fault in Prod
                 Liab? When D’s liability is strict, not based on fault of D, then how
                 can you compare with fault of P, since it doesn’t matter if D is at
                 fault at all? Defect is not fault-related; on the other hand, at least
                 for the comparison purposes, the more serious the defect the more
                 at fault D is. The vast majority of the courts have gotten over this
                 problem, because most courts will reduce P’s verdict regardless of
                 the technical problem; whatever P contributed, P will lose.

              b) Policy question: Should comparative fault reduce P’s recovery?

                     (1) Arguments for P’s recovery:

                            (a) To the extent that D knows that over the life of the
                                product, whenever there is an accident he will
                                have reduced exposure, D will take it into
                                account when doing R/U analysis of his product
                                and not improve it.

                            (b) There is a qualitative difference btw mfr fault
                                and P fault: P’s fault came down to bad judgment in
                                the moment, while D’s fault came down to bad
                                judgment after planning.

                            (c) A manufacturer should know that there is a
                                certain % of people who will be idiots, therefore
                                there should be a certain level of idiot-proofing in the

                     (2) Argument for P not to recover: Even if there is a 51/49
                         statute, this is a S/L case, not N. Therefore, the

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                Lamar Graham / Products Liability (Prof. Twerski), S05

                         comparative negligence statute is not binding: Court can
                         apply pure comparative fault if it wants to.

                            (a) Twerski: Wrong! Design defect and failure to warn
                                are negligence cases. Therefore, the comparative
                                negligence statute does apply.

B. Assumption of risk in Products Liability. A/R has been largely eliminated
   through comparative fault. Occasionally pops up, though, as a no-duty situation.

       1. Hypo: Barry Bonds hits a homer into CF bleachers and conks someone on
          head. Is the reason that the P does not recover is because of A/R? Or
          something more fundamental? Answer: something more fundamental.
          Yes, there’s risk of injury, but it’s low. And to completely annul the risk,
          you’d have to cover the entire field, which is silly. Bottom line: D never
          breached a duty. Never talk about A/R unless P has made out a P/F case.

              a) Bolton v. Stone (Eng. 1951)
                 (Woman beaned by errant cricket ball.)

                 Issue/Rule: “In the crowded conditions of modern life, even the
                 most careful person cannot avoid creating some risks and
                 accepting others. What a man must not do, and what I think a
                 careful man tries not to do is create a risk which is substantial….
                 Unless there has been something which a reasonable man
                 would blame as falling beneath the standard of conduct that
                 he would set for himself and require of his neighbour, there
                 has been no breach of legal duty.”

       2. Hypo: P rushes in from 150’ and comes into the zone btw 60’-90’ that’s
          not covered by netting and gets beaned. A/R? No. A/R in NY is gone as a
          defense—it’s all part of comparative fault. So how do you deny P
          recovery? By saying D had no duty to P who desires a risk. It’s like getting
          into a car with a drunk driver—the DD has a responsibility to everyone
          else…but not to the person who knowingly got into car. So A/R sorta
          comes to life again. But you do it by saying no duty. Voluntary

       3. Hypo: Pregnant woman wakes up hubby at 3am. Her water has broken;
          umbilicus showing. She knows she’s got to get to hospital asap or else
          baby is in danger from prolapsed cord. Car won’t start. Neighbor says you
          can take my car—but it’s got steering problems and is under recall. Hubby
          says I got bigger problem. Takes the car, drives to hospital, car fails,
          serious accident. Any cause of action against neighbor? No. What about
          suing GM? Cause of action? Car with defective steering—very foreseeable
          risk of injury. What do you do in a jurisdiction with no A/R? No duty to
          hubby, sure, who entered into relationship voluntarily…but what about the
          wife, who didn’t know?

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              Lamar Graham / Products Liability (Prof. Twerski), S05

                       XI. Defective Drug Design

A. Failure To Warn v. Defective Design in the pharma context.

      1. A pharma maker has as much duty to warn as any other mfr.

      2. N standard. In FTW cases in gen’l, there’s no diff btw SL and N—so long
         as there’s a foreseeability requirement. In drugs, it’s surely an N
         standard: the risk has to be foreseeable, and there is a duty to warn
         (primarily to the learned intermediary, where it’s an Rx drug).

      3. Learned Intermediary rule about as strong as it can get with drugs,
         even where drug is mkt’d DTC.

B. Determining defect in drug design. RTT:PL Sec. 6c. (p542)

      1. For non-drug cases, it’s R/U + RAD.

      2. Drug cases: Drug is not defective unless it’s no good for anyone—
         unless the risks outweigh benefits for all classes of patients.

            a) RAD is not realistic for drugs. Hard to get a drug to market in
               USA. Takes 8-15 to jump through FDA’s hoops. Four of five drugs
               fail. To say that you should have changed the formula by a
               molecule just isn’t practical—you’d have to start from scratch with
               FDA. E.g., New Accutane: New formula with fewer side effects, but
               FDA is still sitting on it—wants to make sure changes don’t create
               new effects.

            b) What if there’s a drug on mkt that offers same benefits but
               fewer risks? Should Drug B be able to declare Drug A defective?
               No, because RTT:PL has reasonable-provider requirement—if B has
               benefits but not same risks, no reasonable provider would

            c) What happens if the drug has a useful purpose, but it’s
               misprescribed? Then if you ask whether benefits outweigh risk,
               they don’t.

                   (1) Oxycontin. Great for cancer patients. But kids use it to get
                       high. Should oxycontin be declared defectively designed? X
                       kids will OD and die. Maybe the answer is to prescribe 3
                       pills at a time, not 50. The issue might be mktg.

                   (2) Thalidamide. Causes terrible birth defects…but it’s good
                       for AIDS patients.

                   (3) DES. Cancer in daughters. But good for prostate cancer.

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d) Aesthetic (not theraputic) drugs/devices. One woman’s fake
   boobs are another woman’s self-esteem. Aesthetics may be
   incredibly impt to some. And no third-party effects. As long as they
   know the risks, it’s not the biz of courts to say that these things
   cause more injury than good. It’s not about R/U, it’s about whether
   there was enough info out there for people to make an informed

                      Page 57 of 57

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