1. Construct a fact pattern [an example] to clearly delineate:
a. A Manufacturing Defect: A car’s braking system that does not work properly and causes the driver to get into an accident.
b. A Design Defect: A type of sunglasses that fail to protect the eyes from ultraviolet rays.
c. A Marketing Defect: Prescription drugs advertised as “virtually non-toxic,” “safe,” and “free of significant side effects” when they are not. They failed to state the warnings.
2. Describe how the issue of privity was determined under English common law.
Privity under English common law does not apply to third party members who are not involved in the original agreement. It only covers the relationship between the parties in the contract agreement. This applies to consumers who purchase the product from a retailer who buys it from the manufacturer. Since the manufacturer is not a part of the original agreement, they are not liable for any damages that the consumer has about the defective product. They can only be liable if the consumer bought the goods from the manufacturer directly. If the consumers did not buy the goods directly from the manufacturer, then the manufacturer would be considered a third party. This is under the privity doctrine.
3. Explain the importance of MacPherson and Henningsen in the development of law of products liability.
The first changing views on product liability were in MacPherson v. Buick Motors where the judge rejected the privity rule in negligence cases. The judge held that the nature of automobiles is such that probable danger is foreseeable if they are constructed defectively. MacPherson began the development of what now is the modern law of negligence in products liability cases. It applied negligence to one who supplies directly or through a third person for another to use.
In Henningsen v. Bloomfield Motors, based upon an implied warranty of fitness, the court extended protection of that warranty to the “ultimate purchaser” and to other foreseeable users of the product – family, household, and guests. This case resolved the privity dilemma and articulated the rationale upon which the total transition from special warranty to strict liability in tort would ultimately be made.
4. What is strict liability in tort? Describe at least three problems inherent in the three common law theories of recovery that strict liability was designed to “fix.”
A manufacturer is strictly liable in tort when an article he places on the market, knowing that it is used without inspection for defects, proves to have a defect that causes injury to a human being. The three common law theories are negligence, misrepresentation and fraud, and warranty actions.
Negligence involves proof that a product was designed or manufactured in an “unreasonable manner.” Drawbacks to a suit based on negligence in the specific area of products liability involve the requirement of expert proof, the existence of the doctrine privity, the defense of contributory negligence and the sometimes torture standard of a “reasonable man.”
Misrepresentation and fraud actions focus on the proof of a false representation of a material fact, upon which a plaintiff reasonably relied in entering into a contract. A drawback to a suit based on fraud was the common belief that all sellers would in fact engage in a certain amount of exaggeration regarding their products, and the common notion that no matter how careful a manufacturer might be, no one could absolutely guaranty the safety of any product, thus negating the element of reasonable reliance.
Warranty actions were essentially based on contract promises, either express or implied. Drawbacks were only applied to the sale of goods. In common law, the manufacturer’s liability was limited to the actual purchaser of the product and not to any other parties.
The drawbacks inherent in the three common law forms of action led to the development of strict liability in tort. This focuses exclusively on the existence of a product defect and not on the nature of the conduct of the defendant (negligence), or on specific words or promises (warranty/misrepresentation/fraud). Strict liability permits an injured party to sue a manufacturer directly, even in the absence of privity.
5. Explain the nature of the requirements for product warnings. How did this standard “play out” in Spruill?
There are three criteria that used by the courts concerning product warnings. The first one is that a warning must be displayed in such a way to reasonably “catch the attention” of the person expected to use the product. The second one is that a warning must fairly apprise a reasonable user of the nature and extent of the danger and not minimize any danger. And the third one is that a warning must instruct the user as to how to use the product in such as to avoid the danger –essentially how to safely use the product. In Spruill, an infant dies from swallowing furniture polish. The adequacy of the warning, “May be harmful if swallowed especially by children,” in small print on bottle was question for jury. The court emphasized that the warning that was given was placed so as to conceal it from all but the most cautious users. It was located in the midst of a body of print of the same size and color, with nothing to attract special attention to it except the words “Safety Note.” It did not follow the requirements for product warnings.
6. Construct a fact pattern [an example] where a court would apply the “foreign-natural test” in refusing to hold a seller of a product liable for an injury to a customer or buyer? Now, construct a fact pattern in which a court might hold a seller liable for an injury to a product? Which test do you prefer? Why?
Under the foreign-natural test, if the injurious substance is foreign to the food, the restaurant is strictly liable. If the injurious substance is natural to the food, there is no strict liability. Rather, liability is imposed only if the restaurant was negligent in failing to discover and remove the harmful natural substance from the food. An example where the seller is not liable is if a chicken bone is found in a chicken pie. Bones which are natural to the type of meat served cannot legitimately be called a foreign substance, and a consumer who eats meat dishes ought to anticipate and be on his guard against the presence of such bones. An example where the seller is liable is if a consumer finds a bone in a noodle soup mix. Since there is no meat in the soup, a consumer should not expect to find a bone.
The test that I would prefer is the foreign-natural test because in the example I used, finding a chicken bone is not unusual or foreign if the product contains chicken. However, it is unusual to find a bone in product that does not contain any meat.
7. Create an example where fraud could be the basis of a suit in products liability?
An example where fraud could be the basis of a suit in products liability is if people are planning on buying a house and the house owner conceals a leak on the ceiling and states that nothing is wrong with the house.
8. How does a court act as a “gatekeeper” in the area of admitting expert proof in a products case?
The judge acts as a gatekeeper in order to determine whether the matter relied on can provide a reasonable basis for the opinion of whether that opinion is based on a leap of logic. The gatekeeper’s role is to make certain that an expert, whether basing testimony upon professional studies or personal experience, employs in the courtroom the same level of intellectual rigor that characterizes the practice of an expert in the relevant field and to simply exclude clearly invalid and unreliable expert opinion. It assures that any alleged expert testimony meets a basic level of fact based on real and not “junk science.” Scientific evidence must be relevant and reliable.
9. Tell me about the Daubert Rule.
The Daubert test refers to a method used by federal courts to determine whether expert testimony is admissible under Federal Rule of Evidence 702. Daubert test was developed from a case Daubert v. Merrell Dow Pharmaceuticals. Under the Daubert test, a court determining the admissibility of purported expert testimony must first determine whether the reasoning underlying the testimony is scientifically valid and whether that reasoning properly can be applied to the facts in issue. A witness must do no more than establish an area of expertise to qualify as an expert. The witness must substantive his or her conclusions and opinion with scientific or technical findings that meet the case’s criteria for relevance and reliability. The court listed four standards for admitting scientific evidence: (1) Has the theory been tested? (2) Has the theory been subjected to peer review and publication? (3) What is the known or potential rate of error and are there controlling standards? (4) Does the scientific community generally accept the theory? The trial court must apply these standards in deciding whether to admit expert testimony.
10. How is “state of the art” evidence used in product cases? Is this the same as using “industry standards”?
“State of the art” testimony will be utilized to determine the technology available at this point. The state of the art with respect to a particular product refers to the technological environment at the time of its manufacture. This technological environment includes the scientific knowledge, economic feasibility, and the practicalities of implementation when the product was manufactured. Courts will use industry standards in order to determine the nature of any design effect and determine whether it is common throughout the industry of the product.