CHAPTER 1
Strict Liability—Its Origins and its Policies
§ 1.01 Privity
§ 1.02 Negligence
§ 1.03 Warranty and Strict Liability
§ 1.04 Policies Underlying Strict Liability
[1] Policies Recognized by the Courts
[2] Significance of Policies
CHAPTER 2
Strict Liability
§ 2.01 The Basic Elements of Strict Liability
§ 2.02 The Manufacturer and Other Persons Liable
[1] The Manufacturer—Components
[2] Suppliers, Retailers and Wholesalers
[3] Used Products
[4] Owners of Products and Non-Sale Transactions
[5] Successor Corporations
[6] Trademark Licensors
[7] The Providers of Services
[8] Hybrid Sale-Service Transactions
[9] Occasional Seller
[10] Casual Manufacturers
[11] Inventors/Licensors
[12] Insurance Companies
[13] Trade Associations
[14] Auctioneers
[15] Brokers
[16] Employee Sales Representatives
[17] Marketing Agents
[18] Parent and Subsidiary Companies
[19] Physicians and Other Medical Care Providers
[20] Hospitals
[21] Pharmacists
[22] Hotels
[23] Directors and Officers
[24] Water Suppliers
§ 2.03 Persons Who May Sue
[1] Employees, Employers and the Manufacturer
[2] Wrongful Death
§ 2.04 The Product
[1] Unassembled Product
[2] Real Estate
[3] Highways
[4] Human Blood
[5] Electricity
[6] Information Supplied by Books, Movies, Maps and Certifiers
[7] Images Purveyed on Cassettes, Cartridges, Games and Internet Web Sites
[8] Living Animals
[9] Raw Materials
[10] Unavoidably Unsafe Products
[11] Polygraphs
[12] Alcohol
[13] Prototypes
[14] Cigarettes
[15] Contraceptives
[16] Food Products
§ 2.05 Defect—Its Definition
[1] Mistake in Manufacturing
[2] Defect in Design
[3] Defect by Failure to Warn
[4] Standard of Responsibility of Sellers in Chain of Distribution
CHAPTER 3
The Second Collision Doctrine
§ 3.01 In General
[1] Applicability
[2] Standard of Responsibility
[3] Enhanced Injuries
§ 3.02 Contributory Fault in Second Collision Case
CHAPTER 4
Duty to Warn
§ 4.01 In General
§ 4.02 Elements
[1] Knew or Should Have Known
[2] Adequacy of the Warning
[3] Unreasonably Dangerous
[4] Causation
[5] Negligence versus Strict Liability
§ 4.03 Persons Liable for Failure to Warn
[1] Product Manufacturers
[2] Product Seller in Chain of Distribution
[3] The Employer-Purchaser
§ 4.04 To Whom the Duty Is Owed
[1] Knowledgeable User Exception
[2] Employees of the Purchaser
[3] Other Third Parties
§ 4.05 The Product and the Duty to Warn
[1] High Risk Products
[2] Unavoidably Unsafe Products
[3] Low Risk Products
[4] Obviously Dangerous Products
[5] Post-Sale Obligations
[6] Regulated Product Warnings
[7] Products of Another
§ 4.06 Content of Warning
CHAPTER 5
Breach of Warranty and Strict Liability Compared
§ 5.01 In General
§ 5.02 Privity
[1] The Elimination of Privity
[2] Present Status of Privity in Warranty Cases
§ 5.03 Strict Liability and Breach of Warranty Compared
[1] Privity
[2] Statute of Limitations
[3] Necessity of a Sale
[4] Sales-Service Distinction
[5] Contributory Fault-Misuse
[6] Disclaimers and Limitations of Remedy
[7] Notice
[8] Damages
[9] Liability of Parties in Chain of Distribution
[10] Inference of Defect
[11] Standard of Responsibility
[12] Persons Liable
[13] State of the Art Evidence
[14] Used Products
§ 5.04 Viability of Implied Warranty Cause of Action
§ 5.05 Express Warranty
[1] Elements of Express Warranty Claim
[2] Persons Liable
[3] Persons Who Can Sue-Privity
[4] Defenses
§ 5.06 Magnuson-Moss Warranty Act
CHAPTER 6
Negligence and Strict Liability
§ 6.01 Viability of Negligence
§ 6.02 Considerations
[1] Fault
[2] Negligence Per Se
[3] Failure of Proof in Strict Liability
[4] Misuse
[5] Negligent Entrustment
[6] Evidence
[7] Inconsistent Verdicts
[8] Post-Manufacture Duties
[9] Remedies
[10] Superseding Cause--Substantial Modification
[11] Special Hazards
[12] Comparative Fault
CHAPTER 7
Causation
§ 7.01 Importance of Causation
§ 7.02 Cause-In-Fact
[1] Cause-In-Fact Issues in Product Liability Cases
§ 7.03 Multiple Causes
§ 7.04 Proximate Cause
[1] Proximate Cause in Products Liability Cases
[2] Superseding Cause
§ 7.05 Causation in Duty to Warn Cases
[1] Failure to Read the Warning
[2] Failure to Heed the Warning
[3] Warnings to Physicians
CHAPTER 8
Defenses
§ 8.01 In General
§ 8.02 Plaintiff’s Culpable Conduct
[1] Contributory Negligence
[2] Common Law Assumption of the Risk
[3] Unreasonable Assumption of the Risk
[4] Highly Reckless Conduct
[5] Misuse as Contributory Fault
[6] Culpable Conduct and Failure to Warn
[6A] Culpable Conduct and Violation of Statute
[7] Contributory Fault and Failure to Wear a Seat Belt
[8] Comparative Fault
§ 8.03 Latent vs. Patent Defects and the Openness and Obviousness of Defect
§ 8.04 Misuse and Alteration
[1] Definition
[2] Foreseeability
[3] Consequences of Misuse and Alteration
[4] Misuse and Comparative Fault
§ 8.05 Absence of Duty
[1] Optional Safety Equipment
[2] Delegation of Duty
[3] Counterfeit Goods
§ 8.06 Defenses Based on Employer Negligence
[1] Contribution and Comparative Fault
[2] Indemnity
[3] Superseding Cause
[4] Evidence of Absence of Defect
[5] Discharge of Manufacturer’s Duty
[6] Second Collision Cases
[7] Dual Capacity and Intentional Tort Doctrines
[8] Employer Supplied Specifications
§ 8.07 Products Built to Another’s Specifications
[1] Military Contracts
[2] Non-Military Government and Private Contracts
[3] Statutory Provisions
§ 8.08 State of the Art
[1] Definition
[2] Admissibility
[3] Weight and Use of State of the Art Evidence
[4] Relevant Time
§ 8.09 Government Regulations
[1] Regulations Governing the Manufacturer’s Conduct
[2] Regulations Governing the Employer’s Conduct
[3] Government Regulation that Preempts State Product Liability Law
§ 8.10 Industry Standards and Safety Codes
§ 8.11 Industry Custom
§ 8.12 Useful Life--Failure to Maintain
§ 8.13 Statutes of Repose and Limitation
[1] Statutes of Repose
[2] Statutes of Limitation
§ 8.14 Jurisdiction
§ 8.15 Spoliation
§ 8.16 Sealed Container Defense
§ 8.17 Bulk Supplier/Seller Defense
CHAPTER 9
Evidence
§ 9.01 Admissibility of Subsequent Remedial Measures
[1] Federal Courts
[2] State Courts
[3] Exceptions
§ 9.02 Proof of Defect–Res Ipsa Loquitur and the Inference of Defect Rule
[1] Res Ipsa Loquitur
[2] Inference of Defect
§ 9.03 Collateral Estoppel
[1] General Principles
[2] Collateral Estoppel in Product Liability Cases
§ 9.04 Evidence of Similar Accidents
§ 9.05 Absence of Similar Incidents
§ 9.06 Habit
§ 9.07 Evidence of Due Care and Quality Control in the Manufacturing Process
[1] Negligence
[2] Strict Liability
§ 9.08 Demonstrative Evidence and Visual Aids
[1] Uses of Demonstrative Evidence
[2] Timing of Use
[3] General Categories of Demonstrative Evidence
[4] General Guidelines for Admissibility
[5] Specific Types of Demonstrative Evidence
§ 9.09 Experiments and Tests
§ 9.10 Government Agency Reports
§ 9.11 Admissibility of Evidence of Settlements
[1] Settlement with Other Defendants
[2] Settlement with Another Plaintiff
[3] Bias, Cross-Examination
§ 9.12 Recall Letters
[1] Relevancy
[2] Hearsay
[3] Subsequent Remedial Measures
[4] Unduly Prejudicial
[5] Design Defect Cases
[6] Defensive Use
§ 9.13 DNA Evidence
CHAPTER 10
Indemnification, Contributionand Settlement
§ 10.01 In General
§ 10.02 Indemnity
[1] Employer versus Manufacturer
[2] Owner versus Manufacturer
[3] Seller versus Seller in Chain of Supply
[4] Successive and Incidental Sellers
[5] Manufacturer versus Employer-Purchaser
[6] User versus Manufacturer
[7] Owner versus Repairer and Installer
[8] Manufacturer of Product versus Manufacturer of Product Used with the Product
[9] Manufacturer versus Component Manufacturer
[10] Successor Corporation versus Predecessor
[11] Product Tester versus Manufacturer
[12] Installer versus Manufacturer
[13] Distributor versus Distributor
§ 10.03 Contribution
[1] Significant Factors
§ 10.04 Settlement
[1] Contribution
[2] Indemnity
[3] Mary Carter Settlement Agreement
[4] Structured Settlements
CHAPTER 11
Damages
§ 11.01 In General
§ 11.01A Damages Must Be Legally Cognizable
§ 11.02 Personal Injury
[1] Past and Future Pain and Suffering
[2] Reasonable Expenditures for Medical Services
[2A] Medical Monitoring
[3] Lost Earnings and Impairment of Earning Capacity
[4] Multiple Causes
[5] Prenatal Injuries
[6] Emotional Distress
§ 11.03 Derivative Claims
§ 11.04 Death
[1] Wrongful Death
[2] Survival Action
§ 11.05 Breach of Warranty
§ 11.06 Miscellaneous Damage Issues
[1] Taxation
[2] Pre-Judgment Interest
[3] Inflation and Reduction to Present Value
[4] Collateral Sources
[5] Avoidable Consequences
§ 11.07 Injury to Property and Economic Loss
[1] Background
[2] Tort Recovery for Types of Non-Personal Injury
§ 11.08 Punitive Damages
[1] Introduction
[2] General Principles
[3] Factors Affecting Liability
[4] The Defendant’s Case
CHAPTER 12
Preparing a Product Liability Checklist
§ 12.01 In General
§ 12.02 The Product Safety Review
[1] Management Commitment
[2] Product Design Process
[3] The Manufacturing Process
[4] Warnings and Instructions
[5] Post-Sale Phase
[6] Document and Word Control
§ 12.03 Uses of the Safety Review
§ 12.04 Pre-Acquisition Reviews
CHAPTER 13
The Expert in Product Liability Litigation
§ 13.01 The Expanding Role of Experts
[1] Uses of Experts
[2] General Background of Expert
§ 13.02 The Testifying Expert; Legal Considerations
[1] Qualifications
[2] Issues Appropriate for Expert Testimony
[3] The Expert’s Opinion
§ 13.03 Excluding an Expert’s Opinion
[1] The Daubert Standard
[2] The Kumho Tire Standard
[3] The Frye Standard
[4] Challenging Causation Experts
§ 13.04 Preparing for Deposition and Cross-Examination of Experts
§ 13.05 Cross-Examination of Specific Types of Experts
[1] Cross-Examination of Medical Experts
[2] Cross-Examination of Causation Experts in Toxic Substance Exposure Cases
[3] Psychological Injury Expert
[4] The Lost Earning Capacity Experts
CHAPTER 14
Developing a Trial and Settlement Strategy
§ 14.01 Overview of General Strategy
§ 14.02 Theory of the Case
[1] Single Theory Cases
[2] Multiple Theories
§ 14.03 Consolidation Considerations
§ 14.04 Preparing the Trial Plan
[1] Type of Defect
[2] Theory of Liability
[3] Causation
[4] Damages
[5] Defenses
[6] Evidence
[7] Research
[8] Motions
§ 14.05 Devising a Settlement Strategy
[1] Manufacturer’s Perspective
[2] Plaintiff’s Perspective
[3] Timing of Settlement Negotiations
[4] Evaluating a Case for Settlement
[5] Settlement Tactics
[6] Legal Considerations
§ 14.06 Pre-Trial Activities
[1] The Pre-Trial Order
[2] Open Discovery Items
[3] Motions In Limine
[4] Other Pre-Trial Motions
[5] Trial Notebook or Trial File
[6] Trial Brief
[7] Final Pre-Trial Conference
CHAPTER 15
Trial Practice—The Jury
§ 15.01 In General
§ 15.02 Selecting the Jury
[1] Methods of Selecting the Jury
[2] Preparation of Voir Dire
[3] The Voir Dire
§ 15.03 The Opening Statement
[1] General Principles
[2] Outline of Opening
[3] The Goals of Opening
§ 15.04 Closing Argument
[1] Style of Summation
[2] Planning the Summation
[3] Content of Summation
[4] Responding to Plaintiff’s Summation
§ 15.05 Jury Instructions
§ 15.06 Trial and Post-Trial Motions
CHAPTER 16
Trial Practice—The Evidence
§ 16.01 Direct Examination of Witnesses
[1] Lay Witnesses
[2] Expert Witnesses
[3] Re-Direct Examination
§ 16.02 Cross-Examination of Witnesses
[1] All Witnesses
[2] Cross-Examination of Experts
§ 16.03 Documentary and Demonstrative Evidence
[1] Importance of Documentary Evidence in Product Liability Litigation
[2] Sources of Documents
[3] Selection of Documents
[4] Preparation and Organization of Trial Exhibits
[5] Document Control
[6] Demonstrative Evidence
[7] Use of Exhibits
§ 16.04 Admissibility of Evidence
[1] General Rules on Objecting
[2] Specific Objections
[3] Competency of Lay Witnesses
[4] Expert Opinion Evidence
[5] Authentication and Identification
[6] Objections as to Subject Matter
[7] Objections on Hearsay Grounds
[8] Objections as to Form
CHAPTER 17
Class Actions
§ 17.01 In General
§ 17.02 The Development of Class Actions
§ 17.03 Class Actions in Product Liability Cases
[1] Basic Structure of Federal Rule of Civil Procedure 23
[2] The Application of Rule 23 in Product Liability Cases Generally
[3] Rule 23 and Certification of Settlement Classes
§ 17.04 Class Action Cases by Product
[1] Antihemophiliac Factor
[2] Penile Implants
[3] Pacemakers
[4] Orthopedic Bone Screws
[5] Silicone Breast Implants
[6] Dalkon Shield
[7] DES
[8] Other Prescription Drugs
[9] Tobacco
[10] Baby Bottles
[11] Handguns
[12] Formaldehyde, Methanol, Phenol
[13] Agent Orange
[14] Asbestos
[15] Norplant
[16] Latex Gloves
[17] Tampons
[18] Diet Drugs
[19] Automobiles
[20] Tires
[21] Sulfuric Acid
[22] Polychlorinated Biphenyls (PCBs)
[23] Gasoline
[24] Treated Wood Products
[25] Beryllium
[26] Hydrogen Sulfide
[27] Plutonium
[28] Household Appliances
CHAPTER 18
State Consumer Protection Statutes
§ 18.01 In General
§ 18.02 Private Rights of Action
[1] Elements
[2] Available Relief
[3] Statutes of Limitations and Pre-Suit Requirements
§ 18.03 Consumer Class Actions
Appendix
Index