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Law and Public Health > Chapter 6 > Flashcards

Chapter 6 Flashcards

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1
Q

Definition of tort

A

“a civil non-contractual wrong for which a persons or groups of persons seeks a remedy in the form of monetary damages”

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2
Q

Name some characteristics of tort cases

A
  • Civil (not criminal
  • Private (not public)
  • Can produce $$ (not injunction, nor specific performance)
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3
Q

Name the goals of tort law

A
  • ASSIGN RESPONSIBILITY to those causing unreasonable risks
  • COMPENSATE persons for losses/harms
  • DETER unreasonably hazardous behavior
  • ENCOURAGE innovation in product design, packaging labeling, and advertising to reduce risk of injury or disease
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4
Q

Name some benefits to tort as a public health tool

A
  • Private citizens and public agencies can address problems the legislatures have failed to address
  • Harms to environment
  • Exposure to toxic substances
  • Pharmaceuticals
  • Hazardous products and defective consumer goods
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5
Q

Name some costs to tort as a public health tool

A
  • Court and liability costs can deter businesses from entering or remaining in the market
  • Raise price of consumer goods
  • Limit consumer choices
  • Potential uneven impact
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6
Q

Theories of tort liability

A
  • Negligence
  • Private nuisance
  • Strict liability
    • Product liability
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7
Q

Describe Negligence as a theory of tort liability

A
  • Liability based on “fault”
  • Requires:
    • Duty of care
    • Breach of duty
    • Causation
    • Harm
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8
Q

Describe Private Nuisance as a theory of tort liability

A
  • Unreasonable interference with a possessor’s use and enjoyment of land
  • Requires:
    • Intention to interfere (knowledge of nuisance)
    • Substantial interference
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9
Q

Describe Strict Liability as a theory of tort liability

A
  • Liability without “fault”
  • Based on abnormally hazardous activities or sale of defective products
  • Requires:
    • Intention
    • Proximate cause
  • Includes:
    • Limitations/defenses of public duty privilege
    • Sovereign immunity (SL only, not for claims of negligence)
  • Product Liability
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10
Q

Which theory of tort liability does “product liability” fall under?

A

Strict liability

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11
Q

4 types of product liability:

A
  1. Manufacturing defects
  2. Design defects
  3. Failure to warn
  4. Misrepresentation
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12
Q

Key issues with Causation as a challenge of mass toxic tort litigation

A
  • Documenting exposure (avoiding confounders)
  • Latency periods
  • Background rates of disease
  • Intervening causes
  • Contributory/comparative negligence (the victim being partly responsible for the injury)
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13
Q

General vs. Specific causation:

A
  • General causation: Is the substance capable of causing the illness/harm in question?
  • Specific causation: Did exposure cause the particular harm the plaintiffs experienced?
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14
Q

Frye (1923)

name test

describe test

A

“general acceptance test”

Scientific evidence or theory must be sufficiently established to have general acceptance (consensus) in scientific community

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15
Q

Federal Rules of Evidence (1975)

A
  • Marked a shift
  • Allowed introduction of any scientific or technical evidence that “will assist the trier of fact to understand…” and a qualified expert may testify to it
  • Use Daubert and Joiner when interpreting the Federal Rules of Evidence
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16
Q

Daubert (1993)

A
  • Outcome - court interprets Evidence Rule 702 (a federal rule) to change from a general acceptance standard to “gatekeeper” rule  to determine the soundness of the expert scientist opinion by reference to a series of non-exclusive factors:
  • Holding: Federal Rules superseded Frye BUT judges act as GATEKEEPERS
    • “must assure that scientific evidence is not only relevant, but reliable”
  • 4 factors for reliability
17
Q

What are the 4 non-determinative factors for reliability under Daubert (1993)?

A
  1. Testing – whether the scientific theory can be/has been tested
  2. Peer review – whether the theory or technique has been subjected to strictures of peer review and publication
  3. Error rate – whether there is a high known or potential error rate
  4. General acceptance – whether the theory or technique enjoys general acceptance within a relevant scientific community.
18
Q

General Electric Company v. Joiner (1997)

A
  • Held
  • TC can critically examine conclusions to determine if they are supported by studies cited
  • Apply standards of relevance and reliability
19
Q

Kumbo Tired Co. v. Carmichael (1999)

A
  • Held
  • Daubert standard extended to technical as well as scientific experts
20
Q

Strengths of tort cases being an important tool of PH regulation?

A
  • Avoids politics of legislation
  • Avoids public dislike of taxes and restrictive controls
21
Q

Weaknesses of tort cases as an important tool of PH regulation?

A
  • May not deter the behavior.
  • Cost liability often just gets passed to consumer
  • Negligence relies on “fault” and producers can avoid liability where consumers “assume the risk” or contributory or comparative negligence
22
Q

Cases involved in preempting tort litigation

A
  • Reigel v. Medtronic, 2008
  • Warner-Lambert v. Kent, 2008
  • Wyeth v. Levine, 2009
23
Q

Reigel v. Medtronic, 2008

A
  • Held
  • Congress preempted state litigation against manufacturers of FDA approved devices
24
Q

Warner-Lambert v. Kent, 2008

A
  • Ct of Appeals dec affirmed by SCOTUS
  • Federal law DID NOT preempt patients’ suit for harms caused by diabetes drug
25
Q

Wyeth v. Levine, 2009

A

Federal law (FDA approval) DID NOT preempt plaintiff suit in state court for harm caused by failure to warn by drug manufacturer

26
Q

Important lessons learned through tobacco and tort

A
  • Unexpected success possible through tort
  • States do not necessarily use money as intended
  • Current advertising restrictions still allow too many ads from PH perspective
  • Transformed public and political perceptions of risk and responsibility (from consumers to industry)
  • But industry rhetoric (“freedom of choice” and “freedom from unnecessary taxation and regulation”) seeks to curb impact
27
Q

Limitations of tort law: Ethics

A
  • Justice
  • Beneficence
  • Juries can be capricious
28
Q

Expand on Justice as a limitation of tort law under Ethics

A

Reliance on tort system places burden of action (and expense) on plaintiff litigants, often those least able to sustain

29
Q

Expand on Beneficence as a limitation of tort law under Ethics

A

Case by case determinations leave many of those who are harmed without compensation

30
Q

Juries being capricious as a limitation of tort law under Ethics, expand

A

May become unreasonably “anti- business” or may be unsympathetic to unappealing plaintiffs

31
Q

Social and economic costs from the limitations of tort law:

A
  • Economic burdens
  • Penalizing business interests
  • Over-deterrence and stifled innovation
  • Wrong incentives
32
Q

Economic burdens as a cost of limitations of tort law

A

Must weigh deterrence against possible negative effects on employment and socio-economic status

33
Q

Penalizing business interests: cost of limitations of tort law

A

May discourage some innovation that would be good in favor of least possible liability

34
Q

Over-deterrence and stifled innovation: cost of limitations of tort law

A

May deter market entry, drive producers of useful things (vaccines, contraceptives) out of market, or drive professionals out of practice (OB/GYNs, neurosurgeons)

35
Q

Wrong Incentives: cost of limitations of tort law

A

Promote defensive medicine

Law and Public Health (4 decks)

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