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Product Liability

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by John S. Allee, Theodore V.H. Mayer, Robb W. Patryk


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“An excellent comprehensive guide for the products liability practitioner ... a must for every litigator's law library.”
Richard J. Phelan, Past President of the Cook County Board of Commissioners, Chicago

Product Liability analyzes both the theory and practice of products liability litigation, whether the issue is asbestos, automobiles, food, drugs, chemicals, household products, or any of the hundreds of other products that may be the subject of litigation.

Attorneys for both plaintiffs and defendants will find comprehensive coverage of such matters as: the advantages and disadvantages of suits based on strict liability, negligence and breach of warranty; the use of state consumer protection statutes; the duty to warn and its innumerable ramifications; the liability of the manufacturers, retailers and other potential defendants in the distribution chain; successor liability; federal preemption of common law claims; monitoring product safety during design, manufacturing and distribution; causation theories in actions involving multiple manufacturers; product misuse and alteration; the elements of proof needed in an action; recovery for economic loss; punitive damages; and the government contractor defense. Product Liability also discusses pretrial and trial practice, including developing strategies for the trial or settlement of a case, class actions, jury selection, the opening statement, direct and cross-examination of witnesses, documentary and demonstrative evidence, summation, and jury instructions.

Book #00587; looseleaf, one volume, 1,316 pages; published in 1984, updated as needed; no additional charge for updates during your subscription. Looseleaf print subscribers receive supplements. The online edition is updated automatically. ISBN: 978-1-58852-026-5


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  • Availability: Available
  • Brand: Law Journal Press
  • Product Type: Books
  • Edition: 0
  • Page Count: 1316
  • ISBN: 978-1-58852-026-5
  • Pub#/SKU#: 587
  • Volume(s): 1

Author Image
  • John S. Allee
Mr. Allee is a retired partner of the New York office of Hughes Hubbard & Reed LLP.


Author Image
  • Theodore V.H. Mayer
Mr. Mayer is a partner at Hughes Hubbard & Reed LLP in New York.


Author Image
  • Robb W. Patryk
Mr. Patryk is a partner at Hughes Hubbard & Reed LLP in New York.

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 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] Misuse as Contributory Fault
[5] Culpable Conduct and Failure to Warn
[6] 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 Spoliation
§ 8.15 Sealed Container Defense
§ 8.16 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, Contribution and 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] Manufacturer versus Employer-Purchaser
[5] User versus Manufacturer
[6] Owner versus Repairer and Installer
[7] Manufacturer of Product versus Manufacturer of Product Used with the Product
[8] Manufacturer versus Component Manufacturer
[9] Successor Corporation versus Predecessor
[10] Product Tester versus Manufacturer
[11] Installer versus Manufacturer
[12] 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 The Testifying Expert; Practical Considerations
[1] Retaining the Testifying Expert
[2] Preparing Trial Expert for Direct Examination
[3] Preparing the Expert for Cross-Examination
§ 13.04 Cross-Examination of Expert Witnesses
[1] Purposes of Cross-Examination
[2] Methods of Cross-Examination
[3] Excluding the Expert’s Opinion
[4] Impeaching the Expert
[5] Eliciting Favorable Testimony
[6] Types of Questions and the Style of Cross-Examination
[7] Mechanics of Preparation
§ 13.05 Cross-Examination of Specific Types of Experts
[1] Cross-Examination of Medical Experts
[2] Cross-Examination of Causation Experts in Toxic Substances 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 Cases
§ 14.03 Preparing the Trial Plan
[1] Type of Defect
[2] Theory of Liability
[3] Causation
[4] Damages
[5] Defenses
[6] Evidence
[7] Research
[8] Motions
§ 14.04 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
§ 14.05 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

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