Products Liability Research Papers - Academia.edu (original) (raw)

This is a chapter in a forthcoming book edited by A. den Exter entitled European Health Law Compendium, Kluwer Law. This chapter demonstrates that Europe is far from a system of rules which adequately addresses risks posed by medical... more

This is a chapter in a forthcoming book edited by A. den Exter entitled European Health Law Compendium, Kluwer Law. This chapter demonstrates that Europe is far from a system of rules which adequately addresses risks posed by medical products. In the Product Liability Directive and its implementation, in the national civil liability systems, in special liability systems and compensation schemes, as well as in changes to civil procedure rules, the search for a balanced, fair, efficient and effective response continues. The complexity and lack of clarity of the existing rules entails uncertainty for victims, and for manufacturers of medical products who are unable to assess their liability exposure. This situation has a significant impact on the position of individual victims of medical products across Europe. It can be problematic in the light of individual rights to access to justice guaranteed on the EU and national levels.

Christopher Buck PhD Esq
CV • 2024

This Article examines the implications of improper document destruction (or, "spoliation") in the context of smoking and health litigation, as well as the adequacy of existing penalties for such behavior. It begins with a discussion of... more

This Article examines the implications of improper document destruction (or, "spoliation") in the context of smoking and health litigation, as well as the adequacy of existing penalties for such behavior. It begins with a discussion of a recent case from Victoria, Australia, McCabe v. British American Tobacco Australia Services, Ltd. ("BATAS"), including the trial and appeals courts' decisions regarding the appropriate penalties for BATAS' document destruction, as well as post-appeal developments in the case. Next, the Article reviews internal tobacco industry documents, including those discussing document "retention" policies that actually encourage destruction of internal documents, and correspondence discussing the contents of destroyed documents. Finally, the Article examines remedies for document destruction in the United States. Because current procedural remedies may not serve as adequate deterrents, the authors propose that courts impose independent civil, and potentially criminal, liability on companies that destroy documents improperly. For lawyers, legal scholars and judges, the tales from the "tobacco wars" provide an opportunity to consider the potentially serious consequences of document destruction, and the appropriate penalty or penalties a court should impose.

The manufacturer's liability for defective products has remained almost unmodified since 1985 when Directive 85/374/EEC (=PLD) was enacted. Perhaps new technology based on artificial intelligence (=AI) could bring about a turning point in... more

The manufacturer's liability for defective products has remained almost unmodified since 1985 when Directive 85/374/EEC (=PLD) was enacted. Perhaps new technology based on artificial intelligence (=AI) could bring about a turning point in the regulation if concepts such as "product" and "defect" or aspects such as "grounds of liability", the so-called "development risks defense", and the "solidarity" are reconsidered. The Group of Experts on Liability and New Technologies (=NTF), in its "Liability for AI and other emerging digital technologies" Report, recommends, inter alia, the regulation of two different civil liability regimes: strict liability and fault-based liability. Thus, it will be necessary to determine precisely the cases to which these regimes apply and how to deal with "uncertain causation". The alleviation of the victim's burden of proof should be considered. From the various documents being published, it appears that the producer's strict liability will remain as the main liability rule, but it will be combined-as the NFT suggests-in the case of the breach of a duty of care with a fault-based liability rule. This approach leaves some open questions, i.e., how to properly combine both grounds of liability in the domain of products that cause damages. In my view, the liability regime suggested by the NTF is far more complicated that the regime which distinguishes three types of defects that are often stressed: the defect of design, the defect of manufacturing, and the defect of information.

The manufacturer's liability for defective products has remained almost unmodified since 1985 when Directive 85/374/EEC (=PLD) was enacted. Perhaps new technology based on artificial intelligence (=AI) could bring about a turning... more

The manufacturer's liability for defective products has remained almost unmodified since 1985 when Directive 85/374/EEC (=PLD) was enacted. Perhaps new technology based on artificial intelligence (=AI) could bring about a turning point in the regulation if concepts such as "product" and "defect" or aspects such as "grounds of liability", the so-called "development risks defense", and the "solidarity" are reconsidered. The Group of Experts on Liability and New Technologies (=NTF), in its “Liability for AI and other emerging digital technologies” Report, recommends, inter alia, the regulation of two different civil liability regimes: strict liability and fault-based liability. Thus, it will be necessary to determine precisely the cases to which these regimes apply and how to deal with “uncertain causation”. The alleviation of the victim’s burden of proof should be considered. From the various documents being published, it appears t...

C'est d'un point de vue comparatiste que l'auteure s'intéresse ici à la responsabilité du fait des produits dérivés du tabac ou de la faute des fabricants. De la perspective des victimes, la jurisprudence rendue ces dix dernières années... more

C'est d'un point de vue comparatiste que l'auteure s'intéresse ici à la responsabilité du fait des produits dérivés du tabac ou de la faute des fabricants. De la perspective des victimes, la jurisprudence rendue ces dix dernières années témoigne lentement d'un débouché ancré davantage dans les pratiques de commerce interdites que la responsabilité civile, suivant son acception plus traditionnelle.

This paper argues that, for factual, legal, and policy reasons, product manufacturers ought to have a duty to warn, under certain circumstances and with certain qualifications, of the dangers attending to use of their products likely to... more

This paper argues that, for factual, legal, and policy reasons, product manufacturers ought to have a duty to warn, under certain circumstances and with certain qualifications, of the dangers attending to use of their products likely to result from the replacement and/or installation, by third parties post-sale, of hazardous component parts.

Studies of juror decisions regarding pain and suffering awards in product liability litigation tend to show substantial variability across participants. A possible explanation is that jurors do not have a useful metric for assessing pain... more

Studies of juror decisions regarding pain and suffering awards in product liability litigation tend to show substantial variability across participants. A possible explanation is that jurors do not have a useful metric for assessing pain and suffering. A study was conducted to explore effects of providing day-rate suggestions on such decisions. Day rate refers to giving information about remaining life expectancy in days and suggesting a value to assign per day. Four scenarios describing product-related accidents were presented to 134 participants. Seven day-rate conditions were employed for each scenario: a no day-rate control; five day rates consisting of 1,1, 1,50, 100,100, 100,200 and $1000; and a multiple day rate condition that described four alternative rates. Results showed a significant day-rate effect, with higher rates resulting in higher awards. Variability of awards was greater in the no day-rate condition than in day-rate conditions with similar award levels. This finding is consistent with the notion that jurors are susceptible to monetary award suggestions. Implications for "biases" in pain and suffering award decisions are discussed.

Liability for defective products meets a modern legal framework applicable to cases which have an international nature in the European Union. However, the new regulatory developments have not solved the existing coordination problems and... more

Liability for defective products meets a modern legal framework applicable to cases which have an international nature in the European Union. However, the new regulatory developments have not solved the existing coordination problems and offer an unjustified complexity, so there is a certain risk that the objectives pursued by the European legislator in this strategic sector for the EU internal market are not going to be fulfilled. The objective of this study is to analyze the solutions contained in Regulation (EC) 442001, relating to jurisdiction, the recognition and enforcement of judgments in civil and commercial matters and Regulation (EC) 8642007, concerning the law applicable to non-contractual obligations («Rome II»), aswell as their interrelationship with other conventional instruments.

The legal consideration of a robot machine as a 'product' has led to the application of the civil liability rules for producers. Nevertheless, there are some aspects of the relevant European regulation that suggest special... more

The legal consideration of a robot machine as a 'product' has led to the application of the civil liability rules for producers. Nevertheless, there are some aspects of the relevant European regulation that suggest special attention should be devoted to a review in this field in relation to robotics. The type of defects, the meanings of the term 'producer', the consumer expectation test and non-pecuniary damages are some of the aspects that could give rise to future debate. The inadequacy of the current Directive 85/374/EEC for regulating damages caused by robots, particularly those with self-learning capacity, is highlighted by the document 'Follow up to the EU Parliament

Scientific uncertainty affecting the demonstration of the causal link in medical, environmental, and product liability often proves fatal to plaintiffs’ claims for judicial compensation of their personal injuries. Responding to this... more

Scientific uncertainty affecting the demonstration of the causal link in medical, environmental, and product liability often proves fatal to plaintiffs’ claims for judicial compensation of their personal injuries. Responding to this challenge, the tribunals of several legal traditions have relaxed their application of the traditional rules of causation and evidence. Others refuse to do so, however, despite the resulting adverse impact on the victims’ chances of obtaining compensation for their injuries. This text examines the French and Québec civil law courts’ willingness to adapt rules of evidence and causation to respond to causal uncertainty in cases involving injuries to human health allegedly caused by medical acts, environmental pollution or defective products. It studies how this desire has expressed itself across these disciplines, but also how it differs depending on the civil law jurisdiction concerned. Ultimately, this paper defends the idea that a more flexible approach aimed at assisting victims in facing causal uncertainty should be adopted by the courts of both jurisdictions when dealing with product and environmental liability cases.

The impact of Section 402A of the Restatement (Second) of Torts had far-reaching effects. The most noticeable of these effects was that strict liability was accepted as a cause of action in almost all cases involving defective products.... more

Excessive consumption of fast food may produce negative results, but it does not render fast food products, like the McDonald’s Big Mac, defective. While no product is technologically perfect, and any product can cause injury, American... more

El trabajo cuestiona la posibilidad y conveniencia de introducir la llamada responsabilidad por cuota de mercado (market share liability) en el Derecho de daños español y apunta diversas razones por las cuales dicha introducción ni es... more

El trabajo cuestiona la posibilidad y conveniencia de introducir la llamada responsabilidad por cuota de mercado (market share liability) en el Derecho de daños español y apunta diversas razones por las cuales dicha introducción ni es posible ni conveniente con carácter general.