Chapter 6 Flashcards
Definition of tort
“a civil non-contractual wrong for which a persons or groups of persons seeks a remedy in the form of monetary damages”
Name some characteristics of tort cases
- Civil (not criminal
- Private (not public)
- Can produce $$ (not injunction, nor specific performance)
Name the goals of tort law
- 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
Name some benefits to tort as a public health tool
- 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
Name some costs to tort as a public health tool
- 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
Theories of tort liability
- Negligence
- Private nuisance
- Strict liability
- Product liability
Describe Negligence as a theory of tort liability
- Liability based on “fault”
- Requires:
- Duty of care
- Breach of duty
- Causation
- Harm
Describe Private Nuisance as a theory of tort liability
- Unreasonable interference with a possessor’s use and enjoyment of land
- Requires:
- Intention to interfere (knowledge of nuisance)
- Substantial interference
Describe Strict Liability as a theory of tort liability
- 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
Which theory of tort liability does “product liability” fall under?
Strict liability
4 types of product liability:
- Manufacturing defects
- Design defects
- Failure to warn
- Misrepresentation
Key issues with Causation as a challenge of mass toxic tort litigation
- Documenting exposure (avoiding confounders)
- Latency periods
- Background rates of disease
- Intervening causes
- Contributory/comparative negligence (the victim being partly responsible for the injury)
General vs. Specific causation:
- General causation: Is the substance capable of causing the illness/harm in question?
- Specific causation: Did exposure cause the particular harm the plaintiffs experienced?
Frye (1923)
name test
describe test
“general acceptance test”
Scientific evidence or theory must be sufficiently established to have general acceptance (consensus) in scientific community
Federal Rules of Evidence (1975)
- 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
Daubert (1993)
- 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
What are the 4 non-determinative factors for reliability under Daubert (1993)?
- Testing – whether the scientific theory can be/has been tested
- Peer review – whether the theory or technique has been subjected to strictures of peer review and publication
- Error rate – whether there is a high known or potential error rate
- General acceptance – whether the theory or technique enjoys general acceptance within a relevant scientific community.
General Electric Company v. Joiner (1997)
- Held
- TC can critically examine conclusions to determine if they are supported by studies cited
- Apply standards of relevance and reliability
Kumbo Tired Co. v. Carmichael (1999)
- Held
- Daubert standard extended to technical as well as scientific experts
Strengths of tort cases being an important tool of PH regulation?
- Avoids politics of legislation
- Avoids public dislike of taxes and restrictive controls
Weaknesses of tort cases as an important tool of PH regulation?
- 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
Cases involved in preempting tort litigation
- Reigel v. Medtronic, 2008
- Warner-Lambert v. Kent, 2008
- Wyeth v. Levine, 2009
Reigel v. Medtronic, 2008
- Held
- Congress preempted state litigation against manufacturers of FDA approved devices
Warner-Lambert v. Kent, 2008
- Ct of Appeals dec affirmed by SCOTUS
- Federal law DID NOT preempt patients’ suit for harms caused by diabetes drug
Wyeth v. Levine, 2009
Federal law (FDA approval) DID NOT preempt plaintiff suit in state court for harm caused by failure to warn by drug manufacturer
Important lessons learned through tobacco and tort
- 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
Limitations of tort law: Ethics
- Justice
- Beneficence
- Juries can be capricious
Expand on Justice as a limitation of tort law under Ethics
Reliance on tort system places burden of action (and expense) on plaintiff litigants, often those least able to sustain
Expand on Beneficence as a limitation of tort law under Ethics
Case by case determinations leave many of those who are harmed without compensation
Juries being capricious as a limitation of tort law under Ethics, expand
May become unreasonably “anti- business” or may be unsympathetic to unappealing plaintiffs
Social and economic costs from the limitations of tort law:
- Economic burdens
- Penalizing business interests
- Over-deterrence and stifled innovation
- Wrong incentives
Economic burdens as a cost of limitations of tort law
Must weigh deterrence against possible negative effects on employment and socio-economic status
Penalizing business interests: cost of limitations of tort law
May discourage some innovation that would be good in favor of least possible liability
Over-deterrence and stifled innovation: cost of limitations of tort law
May deter market entry, drive producers of useful things (vaccines, contraceptives) out of market, or drive professionals out of practice (OB/GYNs, neurosurgeons)
Wrong Incentives: cost of limitations of tort law
Promote defensive medicine
