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Levmore: Barker implies two routes to liability

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Levmore: Barker implies two routes to liability

  1. Fails to perform in its intended use

  2. The risk/benefit of its design is not Hand efficient (not unlike the glass shower door we saw first semester); Trimarco v. Klein, 436 N.E.2d 502 (N.Y. 1892)

  • Adopts Wade’s factors on how to assess culpability

  • This is an incredibly broad formulation of design defect liability (after all, everything could have been made safer)

  • Evidence of subsequent design changes as a result of defective design at time of injury may not be entered as evidence. Federal Rules of Evidence 407; Cann v. Ford Motor Co., 658 F.2d 54 (2d Cir. 1981)

    1. However, you might be able to do it in state court. Ault v. Int’l Harverster, 528 P.2d 1148 (Cal. 1974)

    2. RPD: Be careful with this one. Levmore seems to be well-open to the idea of broad retroactive liability (see 2.14.05 notes)

  • But see Wilson v. Piper Aircraft Corp., 577 P.2d 1322 (Or. 1978). Court refused to apply Barker type liability b/c P failed to supply any evidence regarding the effect of P’s proposed design on the cost/efficiency of the airplane

  • If the manufacturer adopts state of the art safety measures (defined as something more stringent than normal industry practice), this can be a factor for a jury to consider regarding the design. Reed v. Tiffin Motor Homes, 697 F.2d 1192 (4th Cir. 1982)

    1. See also, The T.J. Hooper

  • Subsequent modifications.

    1. Manufacturer can still be liable despite subsequent modifications if the design defect still caused the injury. Soler v. Castmaster, 484 A.2d 1225 (N.J. 1984)

    2. Manufacturer insulated from liability if the injury was proximately caused by the subsequent modifications. Brown v. United States Stove Co., 484 A.2d 1234 (N.J. 1984)

    3. E.g., under CT law, a manufacturer/seller is insulated from liability for subsequent modifications unless:

      1. Modifications were made with instructions provided by seller

      2. Modifications were made with seller’s permission

      3. Modifications were reasonably foreseeable by seller

  • Note: Design defect liability does not apply to U.S. military equipment if the equipment was approved by the gov’t, equipment conformed to specifications, any design dangers were known to the gov’t. Boyle v. United Technologies Corp., 487 U.S. 500 (Scalia, J.)

  • The high water mark of design defect was in the 1970s. The tide has turned.

    1. Lenegar v. Armour of America, 909 F.2d 1150 (8th Cir. 1990). Manufacturer not liable when policeman wearing its bullet proof vest was killed by a bullet wound to his body that the design of the vest “obviously did not cover.”

      1. Court admitted that this was basically an extension of the “open and obvious” test; court was concerned with the flood of litigation that bullet proof vest manufacturers would face if liable were allowed

      2. Levmore: Manufacturer wins (this is obvious)

        1. Though the case would have been different if the manufacturer had more information about where people get hit by bullets and could have clearly designed a better vest

        2. Hence, you see helmet manufacturers being found liable for making helmets that they knew should have been redesigned to protect injuries

    2. O’Brien v. Muskin Corp., 463 A.2d 298 (N.J. 1983). Plaintiff is not required to prove the existence of safer designs, only that the design used was unreasonably safer per Wade’s risk/utility test

      1. Subsequently altered by NJ statute which requires that P must demonstrate existence of a feasible alternative design

      2. Restatement (Third) § 2adopts the same requirement

    3. But see Potter v. Chicago Pneumatic Tool Co., 694 A.2d 1319 (Conn. 1997). Plaintiff not required to prove existence of alternative design when bringing claim for injuries suffered as a result of vibrations from long term use of D’s pneumatic hand tools.

      1. Court specifically refused to adopt the alternative design requirement, instead going with the consumer expectations standard

      2. Levmore: Court adopted the reasonable expectations rule; but you need to read this case in relation to Halliday

        1. Lock could have been put on the gun (cheaply) but people do not expect guns to come with such locks

        2. Thus, in Halliday the “reasonable expectations” test are shown to not always be pro-plaintiff (no one expects guns to come with locks)

      3. Halliday v. Sturn, Ruger & Co., 792 A.2d 1145 (Md. 2002). Gun manufacturer not liable when a child accidentally killed himself with its gun despite existence of very cheap safety devices which manufacturer could have used when victim’s father had failed to use a lockbox and safety manual supplied by manufacturer at time of purchase and hidden the gun under his bed.

        1. There was no injury caused when gun killed child; the gun met consumer expectations (“regrettably”)

        2. P had tried to contend that it was “reasonably foreseeable” that the gun would be used by a child

        3. Court chose not to base its ruling on § 2, though, instead focusing on the “carelessness” of the father

    Duty to Warn

    1. Levmore: Ps usually bring “duty to warn”/negligence cases after their attempts to bring strict liability/product defect claims have failed

    2. Warnings may be appropriate in instances in which the alternate designs would make the product inoperative.

      1. MacDonald v. Ortho Pharmaceutical Corp., 475 N.E.2d 65 (Mass. 1985). Extent of duty to warn must take into account the dangers involved and the “degree of intensity” demanded by the nature of the risk. The risk of “stroke” requires explicit disclosure by Pill manufacturer.

        1. P claimed negligence in D failing to warn that its birth control pills could cause “strokes” though the package in fact stated that blood clotting was a risk. P suffered a stroke and was disabled. P claimed she would not have taken the pills if it warned of “stroke.”

        2. Court held oral contraceptives impose a common law duty on manufacturer to warn users directly of associated risks.

        3. Levmore: Defendant has three defenses:

          1. How much more would have been gained by specifically saying ‘stroke’”

            1. What is the cost to D?

          2. Learned intermediary defense

            1. We told the doctor about “stroke”

            2. Go sue your doctor (though the Co. still needs docs to market its drugs)

          3. Extra language would not have kept P from taking the pill (failure to warn did not cause injury)

            1. The manufacturer will only cause the side effect for people who really would not have taken the pill if the warning was in place. But only allowing liability in this case is too hard to measure

            2. But not allowing liability at all does not seem very fair

      2. Normally, the Restatement (Second) § 388 allows the manufacturer simply to warn a “learned intermediary”; this is normally a doctor

        1. However, the court made an explicit exception for the Pill

        2. Thus, the manufacturer may not rely upon warnings made by medical professionals

      3. Despite the fact that the warning met FDA regulations, a reasonable jury could have found that the failure to indicate “stroke” on the packaging was a breach of D’s duty to warn

        1. “A . . . warning not only conveys a fair indication of the nature of the dangers involved, but also warns with the degree of intensity demanded by the nature of the risk. A warning may be found be unreasonable in that it was unduly delayed, reluctant in tone, or lacking in a sense of urgency.” Citing Selfey v. G.D. Searle Co., 423 N.E.2d 831 (Ohio 1981)

    3. Physician’s duty to warn. There is some disagreement on the extent to which a physician as a learned intermediary blocks manufacturer’s liability

      1. Harrison v. American Home Products, 165 F.3d 374 (5th Cir. 1999). Manufacturer not liable for side effects of Norplant when physicians play a “significant role” in prescribing it

      2. But see Perez v. Wyeth Labs., 734 A.3d 1245 (N.J. 1999). Imposed duty to warn based on Wyeth’s “massive ad campaign” aimed directly at the women themselves

      3. Restatement (Third) § 6(d): Manufacturer is liable if warnings are not provided to:

        1. Health care providers in a position to reduce the harm

        2. Or if warnings are not provided to patient if patient knows health care provider is unable to serve those warnings

    4. Pharmacists’ duty to warn. McKee v. American Home Products Corp., 782 P.2d 1045 (Wash. 1989).

      1. Pharmacist does not have the same duty to warn as a doctor. Pharmacist only liable if he has direct personal knowledge of the P or for negligent practice.

    5. Mass vaccination problems.

      1. Davis v. Wyeth Labs., 399 F.2d 121 (9th Cir. 1968). Wyeth liable when it failed to inform P of a 1:1,000,000 chance of harm during a mass vaccination undertaken by a local pharmacist at Wyeth’s behest

      2. Reyes v. Wyeth Labs., 498 F.2d 1264 (5th Cir. 1974). In a mass vaccination w/the same vaccine, jury entitled to decide whether P would have changed his behavior and that D’s vaccine caused injury (even though “wild strains” were 100 times more likely to cause injury than a defective vaccine)

        1. Levmore: Congress subsequently allowed for recovery in the vaccination cases (assuming any P would have been deterred by the warning) but capped damages

      3. The number of large damage awards has significantly increased the cost of vaccines

        1. Vassallo v. Baxter Healthcare Corp. (Mass. 1998). Manufacturer will be held to the standard of knowledge of an expert in the appropriate field and will remain subject to a continuing duty to warn (at least purchasers) of risks discovered subsequent t the sale. This is not a strict liability approach; it is a negligence approach.

          1. Previously, MA had imposed a “hindsight approach” to products liability: Manufacturer is charged with a duty to warn of risks w/out regard to whether or not the manufacturer knew or reasonably should have known of the risk

          2. HA, PA, and WA also take this approach

          3. Court noted that this was different from holding a manufacturer liable through an implied warrant (since subsequent risks obviously could not be known at the time of sale)

        2. This occurred in conjunction with the breast implant cases (Baxter merely made the implants, Dow Corning made the silicon gel that went into the implants)

    6. Inherently dangerous products. Based § 402A comment k, dealing with dangerous products that are either impossible to remove from the market or to alter the composition would create adverse side effect. A duty to warn is appropriate; negligence standard applied.

      1. Hepatitis acquired through blood transfusion. More than 40 states have adopted negligence standard in hepatitis cases (including IL)

      2. Asbestos. Started off strict liability (Beshada v. Johns - Manville Products Corp.) would up being a negligence/duty to warn standard

      3. Hood v. Ryobi America Corp. 181 F.3d 608 (4th Cir. 1999). Since the proliferation of label detail threatens to undermine the effective of warning altogether, a manufacturer must only provide a warning that is reasonable under the circumstances

        1. RPD: This is expressly rejecting the Hand formula for negligence

        2. That is, it would cost the manufacturer almost nothing to add additional warnings regarding a dangerous product

        1. “Clear and unequivocal warnings” telling the user of a band saw not to remove the blade guard or to operate the saw without the blade guards were sufficient.

    1. Duty to warn regarding subsequent modifications

      1. Liriano v. Hobart Corp., 170 F.3d 264 (2d Cir. 1999).

        1. P was severly injured by meat grinder after his employer had removed safety guard w/out telling him. No warnings had been given by D (manufacturer) that it was unsafe to remove the guard

        2. Court upheld verdict on the basis that a reasonable jury could find:

          1. It is feasible to reduce risk of injury w/safety guards

          2. Guards are made available w/such products

          3. Grinders should only used w/such guards

        3. Consequently, P had established a prima facie case that D’s negligence had caused injury

        4. Levmore: This is not the typical claim. Most times, the courts will let these claims find recovery. Liriano is merely a “feel good” case

    2. Ayers v. Johnson & Johnson, 818 P.2d 1337 (Wash. 1991). D had duty to warn of latent and remote dangers regarding its baby oil when aspiration could cause retardation and seizures in a baby

      1. J&J had put warnings on its baby oil product

      2. P thought that the warnings just meant a baby could suffer minor discomfort through aspiration. P’s negligence allowed baby to inhale, baby subsequently became retarded.

      3. Court held that D was liable since it a reasonable jury could have found that the product should have been “warned” in a like manner to, say, cleaning products

    3. Warnings or design? There is some dispute whether a warning satisfies D’s duty of care, or if in fact D is required to design a product that will not become dangerous if it is in fact used in a manner contrary to its purposed

      1. Uniroyal Goodrich Tire Co. v. Martinez, 977 S.W.2d 328 (Tex. 1998). D liable when P was injured mounting a 16” wheel on a 16.5” frame and it exploded, despite clear warnings not to mount mount a 16” wheel on a 16.5” frame. Court noted D had a duty to design a product that would not explode under such circumstances.

      2. “A product is defective whenever it could be more safely designed without substantially impairing its utility.”

        1. RPD: Compare to Ryobi v. Hood.

    Plaintiff’s Conduct

    1. Daly v. General Motors Corp., 575 P.2d 1162 (Cal. 1978). In an action under strict products liability, damages may be reduced by comparative negligence demonstrated in P’s use of the product in question.

      1. But see LeBouef v. Goodyear Tire & Rubbber Co., 623 F.2d 985.

        1. Facts. Goodyear had only tested its tires for speeds up to 80mph, though car on which they were sold could easily reach 100mph

        2. D found liable when treads separated when P was driving intoxicated at 100mph on the basis that such use was “reasonably foreseeable”.

      2. Levmore: It’s not surprising. Courts can handle strict products liability “blended” with comparative negligence

    Federal Preemption

    1. Pre-emption in design cases involves a three part test (Freightliner Corp. v. Myrick, 514 U.S. 280 (1995)):

      1. Does the statute in question contain a provision that expressly preempts the application of state tort law?

      2. Does the clause have a “savings clause” that limits its pre-emption of state tort law?

      3. In the absence of express pre-emption could a state statute be impliedly pre-empted if its implementation is in conflict with “the accomplishment and execution fo the full purposes and objectives of Congress”.

    2. Geier v. Honda Motor Co., 529 U.S. 861 (2000) . National Traffic and Motor Vehicle Safety Act of 1966 requiring auto manufacturers to equip some but not all 1987 vehicles w/passive restraints pre-empts a common law tort action in which D met the standard but did not equip his car with airbags

      1. RPD: I believe Levmore would hate this case

      2. Thus, Honda not liable when P was injured in a car that had a safety belt but not an airbag

      3. Court based its ruling on the fact that the tort action created actual conflict with the standard promulgated by Federal law and the standard implied in the tort action (despite the fact that there was a “savings clause” under which the law was held not to pre-empt common law tort actions)

        1. RPD: See part (c) of Geier.

    3. Levmore. Geier is a typical case

      1. Reveals the typical evolution of safety innovation → becoming a safety requirement

      2. Geier comes in this period when airbags were not quite required

        1. Some cars had none

        2. Volvos had 4 airbags

      3. By the time Geier P’s claim gets to court, he is saying that he should have had an airbag based on subsequent adoption

      4. Congress is kind of weak on this type of pre-emption though

        1. The statutory modifications won’t clearly say what cases will be pre-empted by statute and what cases will not be pre-empted (ambiguity usually means you can keep bringing your lawsuits, though)

      5. Court bases its ruling in Geier on the fact that Congressional intent was to have a variety of cars on the road

        1. The problem with this “experiment” is that you don’t have a random distribution of cars

        2. E.g., perhaps the worst drivers are buying the safest cars

        3. However, Levmore thinks Geier is good law on the whole (after all, courts don’t apply the same rule for, say, cigarettes)

    4. Lessons to learn from pre-emption/duty to warn

      1. Keep an eye on pre-emption cases

      2. Also start to watch for the pessimism of warning systems

        1. After all, is the world better off for being told that “everything is dangerous”

    Whenever you see ex-ante regulation, it just has to be that that regulation is accompanied by lawsuits against all the tortfeasors (e.g., large scale comparative negligence lawsuits)

    • But if you don’t have the regulation, you would expect to find limited number of lawsuits against a single tortfeasor


    Damages are an essential element of a P’s claim in most civil litigation. Damages generally take one of three forms:

    1. Pain and suffering

      1. Elements of pain and suffering:

        1. Worry

        2. Anguish

        3. Grief

        4. All these are difficult to quantify

    2. Medical expenses

    3. Lost earnings attributable to the accident

    4. For all three, the jury must take into account both past and future losses in both cases

      1. Damages are the “price” a defendant must pay to engage in certain activities

    RPD: Punitive damages inappropriate unless the harmful conduct was intentional, outrageous, or otherwise aggravated beyond mere negligence. McDougald v. Garber.

    Recoverable Elements of Damages

    1. McDougald v. Garber, 536 N.E.2d 372 (N.Y. 1989)

      1. P was left comatose after negligence in a caesarean section. Her husband also brought suit

      2. Damages to a comatose woman for loss of enjoyment of life is inappropriate because the loss can serve no compensatory purpose (since she is unaware of the loss)

      3. However, the wife was still able to recover for the “pain and suffering” she received from the injury

      4. See Rounds v. Rush Trucking Corp., 211 F.3d 185 (2d Cir. 2000)

        1. P suffered serious injury when her picup trick was rammed by D’s tractor/trailer

        2. P received awards for “past and future mental suffering” and another for “past and future emotional distress”.

        3. Appellate struck the later on the basis that Macdougald embraced both forms under the same heading

    2. Problem of calculation

      1. Per diem: Use a calculation based on the value of an average day in the life of P to calculate damage/review the damage award

        1. Upheld in Vanskike v. ACF Industries, 665 F.2d 188 (8th Cir. 1981) subject to cautionary instructions from jury

        2. Questioned/prohibited in Botta v. Brunner, 128 A.2d 713 (N.J. 1958)

      2. There are some arguments for “damage schedules”

      3. Increased risk of future injury

        1. DePass v. United States, 721 F.2d 203 (7th Cir. 1983)

        2. P lost a limb in an accident, brought expert testimony to show that he would have a shorter life expectancy as a result

        3. Court refused damages as “speculative”

        4. Posner, dissenting, said that damages should be warded b/c such damages would be entirely consistent with the goals of tort.

    Economic Losses

    1. O’Shea v. Riverway Towing Co. 677 F.2d 1194

      1. P injured as a result of D’s negligence. Damages of $150,000 calculated on basis of expected economic income, discounted back at 8.5%

      2. Posner: It is entirely probable that P could not have found work elsewhere, calculation on the basis of historical wages is inappropriate

      3. The discount rate was appropriate as it reflects the returns you would expect on a 10-year instrument over that period

    2. Prejudgment interest

      1. Can be mandated by statute

      2. Counts as taxable income

    3. Expected life calculations

      1. Analysis asks:

        1. Expected discounted earnings of each future year

        2. Probabilyt that the plaintiff will actually be in the work force in that eyar

      2. But see Jones & Laughlin Steel Corp. v. Pfeifer, 462 U.S. 523 (1983) court notes that the these calculations are not generally made in practice

    4. Plaintiff has duty to mitigate damages

      1. E.g., McGinley v. U.S., 329 F. Supp. 62 (E.D. Pa. 1971): P has duty to submit to reasonable medical treatment and the rest of reasonableness is determined by the trier of fact

    5. Compensation for personal injuries are not taxable, even when they are substitute for lost income

      1. However, juries are often instructed into the tax implications of damage awards

      2. E.g., Norfolk & Western Ry. v. Leipelt, 444 U.S. 490 (1980); Evidence regarding a decedent’s estimated after-tax earnings was not too speculative to be submitted to a jury

    Duncan v. Kansas City Southern Railway

    1. 3 sisters hurt by train. 1 died, one a quadriplegic, one injured less seriously

      1. Damage award of:

      2. $17,000,000 for general damages (pain, suffering, mental anguish)

        1. 5% annual return implies $850,000 in interest income

      3. $8,000,000 for the loss of enjoyment of life for the dead sister

    2. Appealled on the basis of excessive damages

      1. Court reduced the $8,000,000 to $6,000,000

      2. $17,000,000 reduced to approx. $10,500,000 on the basis of a modified treatment plan (to be supported by interest income) from D and actuarial tables

    3. Note: Review of jury awards is abuse of discretion

      1. Remittur: Court gives the P the choice of avoiding a new trial by accepting a lower award

      2. Additur: D can avoid cost of a new trial by consenting to a larger verdict equal, perhaps, to the smallest verdict the court would sustain against a charge of inadequacy

      3. Federal Appellate court may not do either under its own motion (7th Amendment), it must remand it to the trial court and allow P the option of the new trial

      4. State courts have their own procedures insofar as remitter and additur are allowed

    4. Structured settlements

      1. Cam be used by mutual agreement of the parties even if the common law rule provides only for lump sum damages (though controversial if one party demands them over the rights of the others)

      2. But these can create problems: Deisdero v. Ochs, 791 N.E.2d 941 (N.Y. 2003)

        1. D liable for a $40MM award payable in yearly installments

        2. Given the 3% inflation adjustment required by the court, D was required to pay $140MM all in. The court upheld this determination

    5. Damage caps

      1. Accepted as constitutional in Fein v. Permanente Medical Group, 695 P.2d 665 (Cal. 1985) regarding CA’s limit of $250,000 on pain and suffering

      2. But see Best v. Taylor Machine Works, 689 N.E.2d 1057 (Ill. 1997) striking down IL’s $500,000 cap on general damages


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