Products Liability

Question 1

Strict Products Liability

Commercial Supplier

Answer 1

Any commercial supplier along the chain of distribution may be strictly liable for physical harm caused by a product’s manufacturing defect that existed when the product left the supplier’s control.

However, commercial suppliers who did not negligently, recklessly, or intentionally fail to discover the product defect (ie, no independent culpability) can seek indemnity (ie, full compensation) from commercial suppliers earlier in the chain of distribution.

Question 2

Motion for a Directed Verdict

Answer 2

A motion for a directed verdict should be granted if no reasonable jury could find in the nonmovant’s favor.

For example, a D’s motion should be granted if there is insufficient evidence to support any element of the P’s claim. Conversely, a P’s motion should be granted if every element of the claim has been established beyond dispute.

A strict products liability claim requires proof of the following elements:

• The defendant was a commercial seller (eg, manufacturer—as seen here).
• The product was defective at the time it left the defendant’s control.
• The defect caused the plaintiff physical harm (eg, bodily injury—as seen here).

The trier of fact can infer that the product was defective and caused the plaintiff’s harm if that harm:

(1) is of a kind that ordinarily results from a product defect AND
(2) was not solely due to other causes.

This is true even when the plaintiff lacks direct evidence on these last two elements.

Question 3

Strict products liability claims can only be brought against….

Answer 3

Strict products liability claims can only be brought against commercial suppliers or sellers.

This means that the defendant must be in the business of manufacturing, selling, or otherwise distributing the type of defective product that harmed the plaintiff.

Accordingly, those in the business of providing services are not subject to strict products liability.

Question 4

Any commercial seller in the distribution chain—e.g., manufacturer, distributor, retailer—is subject to strict products liability if:

Answer 4

(1) the commercial seller’s product was defective when it left the commercial seller’s control and
(2) that defect caused the plaintiff harm.

Strict liability is imposed even if the commercial seller did not create or know about that defect.

Question 5

Manufacturing Defect

Answer 5

A manufacturing defect is a deviation from what the manufacturer intended the product to be that causes harm to the plaintiff.

The test is whether the product conforms to the defendant’s own specifications.

Question 6

What must a plaintiff prove in a strict products liability case?

Answer 6

Under strict products liability, the manufacturer, retailer, or other distributor of a defective product may be liable for any harm caused by the product.

The plaintiff must prove:

(i) the product was defective (in manufacture, design, or failure to warn),
(ii) the defect existed at the time the product left the defendant’s control, and
(iii) the defect caused the plaintiff’s injuries when the product was used in an intended or reasonably foreseeable way.

Question 7

Breach of the Implied warranty of merchantability

Answer 7

The implied warranty of merchantability warrants that the product being sold is generally acceptable and reasonably fit for the ordinary purposes for which it is being sold.

Any product that fails to live up to this warranty constitutes a breach, regardless of any fault by the defendant.

Question 8

Is a rescuer (i.e., paramedic) a foreseeable plaintiff when aiding a person endangered by the defective product?

Answer 8

YES.

Under products liability law, a commercial seller is strictly liable when:

(1) it produces or sells a defective product and
(2) the product’s defect harms a foreseeable plaintiff (a person who is reasonably likely to suffer harm because of the defect).

A rescuer is a foreseeable plaintiff because a rescuer is likely to risk injury by aiding a person endangered by the defective product.

Question 9

Strict Products liability for inadequate warnings

Learned-intermediary rule

Answer 9

Under the learned-intermediary rule, a prescription drug or medical device is not defective due to inadequate warnings or instructions when its manufacturer warned the prescribing physician about the risk of harm associated with that product.

• When this occurs, the manufacturer will not be held strictly liable for any harm caused by the product because the physician is expected to convey the manufacturer’s warning to the product’s user.

Question 10

Strict Product Liabilty - Commercial seller of a defective product

Answer 10

Under products liability law, a commercial seller of a defective product may be held strictly liable for any harm that the product causes a foreseeable plaintiff—i.e., a person who is reasonably likely to suffer harm because of the defect.

To recover under a products liability claim, the plaintiff must prove that:

1) the defective product caused the plaintiff’s injuries when it was used in an intended or reasonably foreseeable way AND
2) the defect existed at the time the product left the commercial seller’s control.

Question 11

Products Liability (visual)

Answer 11

Question 12

Strict Products Liability

How to prevail on a claim under the “failure to warn” theory

Answer 12

To prevail on a claim under a strict products liability theory for failure to warn, a plaintiff must prove that:

• the manufacturer failed to provide an adequate warning related to the risks of using the product.

A failure to warn defect exists if there were:

1) foreseeable risks of harm
2) not obvious to an ordinary user of the product
3) that could have been reduced or avoided by providing reasonable instructions or warnings.

The failure to include the instructions or warnings prevents the product from being reasonably safe.

Question 13

Learned-intermediary Rule

Answer 13

Under the “learned-intermediary” rule, the manufacturer of a prescription drug typically satisfies its duty to warn the consumer by informing the prescribing physician of problems with the drug rather than informing the patient taking the drug.

Question 14

Exceptions to the Learned-intermediary rule

Answer 14

Under the “learned-intermediary” rule, the manufacturer of a prescription drug or medical device typically satisfies its duty to warn the consumer by informing the prescribing physician, rather than the patient, of problems with the drug or device.

There are several exceptions, including, most importantly:

i) If the manufacturer is aware that the drug or device will be dispensed or administered without the personal intervention or evaluation of a healthcare provider, such as when a vaccine is administered through a mass inoculation; and
ii) As a result of a federal statute, in the case of birth control pills.

Question 15

Using the risk-utility test, to prevail on a claim under a strict-products-liability-design-defect theory, who must determine whether the risks posed by the product outweigh its benefits?

Answer 15

The jury

Question 16

Risk-utility test - Design Defect

Answer 16

Under the risk-utility test for a design defect, the plaintiff must prove that a reasonable alternative design was available to the defendant and the failure to use that design has rendered the product not reasonably safe.

However, the alternative design must be economically feasible.

• Do the risks posed by the product outweigh its benefits?

Question 17

Does the consumer expectations test apply to a manufacturing defect claim?

Answer 17

NO.

Question 18

A failure to warn defect exists if…

Answer 18

A failure-to-warn defect exists if there were:

i) foreseeable risks of harm not obvious to an ordinary user of the product, and
ii) those risks could have been reduced or avoided by providing reasonable instructions or warnings.

The failure to include the instructions or warnings must render the product not reasonably safe.

Question 19

In an action for strict products liability for a defective product against those involved with the defective product, from whom can the plaintiff recover for his injuries?

Answer 19

As long as the seller is in the business of selling the product, she is subject to strict liability for a defective product, even if she was not responsible for the defect in any way and even when the product is not purchased directly from her.

Question 20

What damages may a P recover for a product that breaches either the implied warranty of merchantability or the implied warranty of fitness for a particular purpose?

Answer 20

Any product that fails to live up to either of the above warranties constitutes a breach of the defendant’s warranty; the plaintiff need not prove any fault on the defendant’s part.

The buyer may recover damages for personal injury and property damage, as well as for purely economic loss.

Question 21

Does a limitation of consequential damages by a product seller or other distributor bar or reduce an otherwise valid products liability claim for personal injury?

Answer 21

NO.

With respect to a products liability claim, a limitation of consequential damages by a product seller or other distributor does not generally bar or reduce an otherwise valid products liability claim for personal injury.

With respect to a breach of the implied warranty of merchantability, while a limitation of consequential damages is permitted, the limitation of such damages for personal injury in the case of consumer goods is prima facie unconscionable.