| Preface to the Ninth Edition |
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xix | |
| Acknowledgments |
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xxi | |
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PART I Liability for Manufacturing Defects |
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1 | (164) |
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Chapter One Product Distributor's Strict Liability for Defect-Caused Harm |
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3 | (92) |
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A The Role of Negligence in the Formative Period |
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4 | (9) |
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1 Negligence from First-Year Torts |
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4 | (2) |
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2 The Fall of the Privity Rule |
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6 | (2) |
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3 The Rise of Res Ipsa Loquitur |
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8 | (1) |
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Escola v. Coca-Cola Bottling Co. |
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9 | (4) |
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B The Modern Rule of Strict Liability in Tort |
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13 | (9) |
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1 Implied Warranty as a Bridge to Strict Liability in the 1950s and Early 1960s |
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14 | (2) |
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2 Adoption of §402A of the Restatement (Second) of Torts in 1965 |
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16 | (1) |
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3 Codification of the Strict Liability Rule in the Restatement (Third) of Torts in 1998 |
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17 | (1) |
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18 | (1) |
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4 Policy Objectives Supporting Strict Liability in Tort |
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19 | (1) |
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20 | (2) |
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C Defect as the Linchpin of Strict Products Liability |
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22 | (11) |
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1 What Makes a Product Defective? (The Conceptual Dimension) |
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22 | (1) |
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Cronin v. J.B.E. Olson Corp. |
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22 | (4) |
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2 How Does the Plaintiff Prove Original Defect? (The Practical Dimension) |
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26 | (2) |
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Speller v. Sears, Roebuck & Co. |
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28 | (5) |
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33 | (1) |
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D The Boundaries of Strict Products Liability |
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33 | (29) |
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1 What Are (and What Are Not) Products? |
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34 | (2) |
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Winter v. G.P. Putnam's Sons |
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36 | (4) |
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Digital Information Technologies Old and New |
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40 | (2) |
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42 | (1) |
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Postscript on Blood and Other Human Tissue |
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42 | (2) |
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2 Which Activities Constitute "Selling or Otherwise Distributing" in a Commercial Context? |
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44 | (3) |
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Oberdorf v. Amazon .com Inc. |
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47 | (8) |
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55 | (5) |
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3 When Is a Product Seller or Other Distributor "In the Business of Selling or Distributing"? |
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60 | (2) |
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E Allocating Responsibility Inside and Outside the Commercial Chain of Distribution |
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62 | (13) |
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1 Allocating Responsibility Between Product Distributors and Other Defendants and Among Members of the Distributive Chain |
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62 | (1) |
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a Joint and Several Liability |
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62 | (4) |
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b Letting Retailers and Wholesalers Out of the Litigation |
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66 | (4) |
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70 | (1) |
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c Contribution Among Members of the Distributive Chain |
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70 | (2) |
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d Indemnity Rights Up the Distributive Chain |
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72 | (2) |
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e Settlement and Release Between the Plaintiff and Members of the Distributive Chain |
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74 | (1) |
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F Assigning Responsibility Collectively to the Distributive Chain |
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75 | (3) |
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G Assigning Responsibility for Product-Related Workplace Accidents |
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78 | (17) |
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1 Direct Attack by the Employee Against the Employer |
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79 | (2) |
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81 | (6) |
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2 Allocating Responsibility Between the Workers' Compensation System and the Products Liability System |
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87 | (1) |
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Kotecki v. Cyclops Welding Corp. |
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87 | (8) |
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95 | (36) |
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A Did the Product Actually Cause the Plaintiffs Harm? |
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96 | (14) |
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1 But-For Causation in General |
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96 | (1) |
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2 Special Problems of Proof: Reliance on Experts |
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97 | (2) |
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Rider v. Sandoz Pharmaceutical Corp. |
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99 | (10) |
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109 | (1) |
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B Did the Defendant Supply the Product? |
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110 | (5) |
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115 | (1) |
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C Did the Defect in the Defendant's Product Contribute to Harming the Plaintiff? |
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115 | (7) |
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1 The Traditional Burden in Proving Causation |
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116 | (1) |
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Midwestern V.W. Corp. v. Ringley |
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116 | (3) |
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119 | (1) |
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120 | (1) |
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120 | (2) |
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122 | (1) |
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D Did the Defective Product Proximately Cause the Plaintiff's Harm? |
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122 | (9) |
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Union Pump Co. v. Allbritton |
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122 | (7) |
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129 | (1) |
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129 | (2) |
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Chapter Three Affirmative Defenses |
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131 | (34) |
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A Conduct-Based Defenses: Background Principles |
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131 | (2) |
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131 | (1) |
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2 Contributory Negligence |
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132 | (1) |
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132 | (1) |
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B Application of Comparative Fault in Products Liability |
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133 | (26) |
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1 Can Fault and Defect Be Compared? |
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134 | (1) |
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a Manufacturing Defects: Comparing Apples and Oranges |
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134 | (1) |
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b Generic Defects: Comparing Fault Under Risk-Utility Balancing |
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135 | (1) |
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c Should Fault and Defect Be Compared? |
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135 | (1) |
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Webb v. Navistar International Transportation Corp. |
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135 | (9) |
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Social Control of Product-Related Accidents: The Seat Belt Defense and Governmental Control of Drivers' Behavior |
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144 | (1) |
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d The Crashworthiness Imbroglio: Should Fault Be Compared with Enhanced Injury? |
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145 | (1) |
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Wolf v. Toyota Motor Corporation |
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145 | (4) |
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e Should Plaintiffs Fault Be Compared with Defendant's Breach of Express or Implied Warranty? |
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149 | (1) |
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f No Duty/Primary Assumption of Risk: Reintroducing Plaintiffs Conduct as a Total Bar |
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150 | (1) |
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Green v. Allendale Planting Co. & the KBH Corp. |
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150 | (5) |
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155 | (3) |
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g Is Comparative Fault a Defense that Only Defendants Can Raise, or Can Plaintiffs Use It as an Affirmative Gambit? |
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158 | (1) |
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C Non-Conduct-Based Defenses |
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159 | (6) |
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159 | (1) |
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159 | (1) |
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159 | (2) |
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161 | (1) |
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Note: Constitutionality of Statutes of Repose |
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162 | (1) |
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2 Government Contractor Immunity |
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163 | (2) |
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PART II Liability for Generic Product Risks |
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165 | (296) |
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Chapter Four Liability for Defective Design |
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167 | (172) |
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A Preliminary Puzzlements |
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169 | (4) |
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1 Do We Need Governmental Review of Product Designs? Why Not Leave Responsibility for Design Safety Entirely to the Market? |
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169 | (2) |
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2 If We Need Governmental Review of Product Designs, Why Not Rely Exclusively on Nonjudicial Regulatory Agencies? Why Rely on Tort? |
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171 | (1) |
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3 If We Must Rely on the Tort System, Why Limit Liability to Defect-Caused Harm? Why Not Adopt Broad-Based Enterprise Liability? |
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172 | (1) |
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B When the Fact of the Accident Speaks for Itself--Inferring Defect from Product Malfunction |
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173 | (2) |
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C Risk-Utility: The Reasonable Alternative Design Standard for Determining Design Defect |
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175 | (51) |
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1 Denning the Standard for Determining Design Defect |
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176 | (1) |
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Smith v. Louisville Ladder Co. |
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176 | (5) |
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Timpte Industries, Inc. v. Gish |
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181 | (8) |
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Bourne v. Marty Gilman, Inc. |
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189 | (6) |
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195 | (3) |
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198 | (1) |
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2 The Time Dimension: Post-Distribution Increases in Knowledge of Risks |
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199 | (2) |
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3 The Time Dimension: Post-Distribution Improvements in Risk-Avoidance Techniques |
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201 | (1) |
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201 | (1) |
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Jae Kim v. Toyota Motor Corp. |
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202 | (8) |
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b Admissibility of Evidence of Subsequent Remedial Measures |
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210 | (3) |
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4 How Do Negligence and Strict Liability Theories Differ? Should Design Claims Be Submitted to Juries on Both Theories? |
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213 | (2) |
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Lecy v. Bay liner Marine Corp. |
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215 | (5) |
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5 Can a Warning Substitute for a Reasonable Alternative Design? |
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220 | (1) |
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Uniroyal Goodrich Tire Co. v. Martinez |
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220 | (6) |
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D Risk-Utility: Product Category Liability |
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226 | (25) |
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James A. Henderson, Jr. & Aaron D. Twerski, Closing the American Products Liability Frontier: The Rejection of Liability Without Defect |
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230 | (2) |
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Ellen Wertheimer, The Smoke Gets in Their Eyes: Product Category Liability and Alternative Feasible Designs in the Third Restatement |
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232 | (3) |
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235 | (4) |
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239 | (8) |
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Note: Crashworthiness Litigation |
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247 | (4) |
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E The Consumer Expectations Standard for Determining Design Defect |
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251 | (20) |
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1 Consumer Expectations as a Sword to Impose Liability |
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251 | (1) |
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251 | (4) |
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Bifolck v. Philip Morris, Inc. |
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255 | (11) |
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266 | (1) |
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The Uniform Commercial Code and the Consumer Expectations Test |
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266 | (2) |
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2 Consumer Expectations as a Shield Against Liability |
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268 | (3) |
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F The Two-Pronged Standard for Determining Design Defect |
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271 | (20) |
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Soule v. General Motors Corp. |
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271 | (13) |
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Mikolajczyk v. Ford Motor Co. |
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284 | (5) |
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The Consumer Expectations Test: Summing Up |
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289 | (1) |
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290 | (1) |
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G Special Duty Problems in Design Litigation |
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291 | (28) |
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1 Whether and to What Extent Should Courts Explicitly Defer to Markets on a Case-by-Case Basis? |
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291 | (1) |
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Linegar v. Armour of America, Inc. |
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291 | (3) |
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Scarangella v. Thomas Built Buses, Inc. |
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294 | (6) |
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2 Whether and to What Extent Should Courts Defer to Safety Statutes or Administrative Regulations? |
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300 | (4) |
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3 Beyond the Pale: High-Profile No-Duty Cases |
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304 | (1) |
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Hamilton v. Beretta U.S.A. Corp. |
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304 | (4) |
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In re September 11 Litigation |
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308 | (3) |
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311 | (8) |
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H Special Problems of Misuse, Alteration, and Modification |
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319 | (5) |
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I Federal Preemption of Design Defect Claims |
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324 | (15) |
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Mutual Pharmaceutical Co., Inc. v. Bartlett |
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329 | (10) |
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Chapter Five Liability for Failure to Warn |
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339 | (90) |
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A The Basic Duty to Warn at Time of Sale |
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340 | (34) |
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1 The General Rule Governing Failure to Warn |
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341 | (1) |
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342 | (2) |
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2 No Duty to Warn of Unknowable Risks |
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344 | (3) |
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Liability Insurance and Long-Tail, Unknowable Risks |
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347 | (1) |
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3 No Duty to Warn of Obvious or Generally Known Risks |
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348 | (1) |
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Jamieson v. Woodward & Lothrop |
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349 | (4) |
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Greene v. A.P. Products, Ltd. |
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353 | (6) |
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359 | (1) |
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To Speak or Not to Speak; "Digging Your Own Grave with the Best of Intentions" |
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360 | (1) |
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361 | (1) |
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4 Informed-Choice Warnings |
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362 | (2) |
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364 | (2) |
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366 | (4) |
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370 | (4) |
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B The Sufficiency of the Defendant's Warning |
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374 | (15) |
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Moore v. Ford Motor Company |
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374 | (7) |
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381 | (1) |
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James A. Henderson, Jr. & Aaron D. Twerski, Doctrinal Collapse in Products Liability: The Empty Shell of Failure to Warn |
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382 | (3) |
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Broussard v. Continental Oil Co. |
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385 | (4) |
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389 | (8) |
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390 | (7) |
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D Special Problems with Causation |
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397 | (19) |
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1 Would the Product User/Consumer Have Heeded an Adequate Warning? |
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397 | (6) |
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2 If the User/Consumer Had Heeded the Warning, Would the Plaintiff's Harm Have Been Reduced/Avoided? |
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403 | (1) |
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3 What If the Defendant's Failure to Warn Causes Plaintiff to Suffer Harm from Another Product? |
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404 | (2) |
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T.H. v. Novartis Pharm. Corp. |
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406 | (9) |
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4 Did the Plaintiff Suffer the Sort of Harm that an Adequate Warning Would Have Aimed at Preventing? |
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415 | (1) |
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415 | (1) |
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E Federal Preemption of Product Warning Claims |
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416 | (13) |
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418 | (1) |
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418 | (11) |
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Chapter Six Express Warranty and Misrepresentation |
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429 | (32) |
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429 | (13) |
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430 | (1) |
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430 | (3) |
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433 | (1) |
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2 Basis of the Bargain -- The Reliance Controversy |
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434 | (1) |
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Cipollone v. Liggett Group, Inc. |
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434 | (7) |
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Note: The Implied Warranty of Fitness for Particular Purpose |
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441 | (1) |
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442 | (8) |
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Crocker v. Winthrop Laboratories |
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444 | (6) |
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C Other Marketing-Based Approaches to Liability |
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450 | (11) |
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Note: Public Nuisance and Problem Products |
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454 | (4) |
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458 | (3) |
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PART III Special Problem Areas |
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461 | (168) |
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Chapter Seven Special Products and Product Markets |
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463 | (66) |
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A Component Parts and Raw Materials |
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463 | (15) |
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Zaza v. Marquess & Nell, Inc. |
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463 | (9) |
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Air and Liquid Systems Corp. v. DeVries |
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472 | (6) |
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B Prescription Drugs and Medical Devices |
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478 | (32) |
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1 Liability Based on Failure to Warn |
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478 | (1) |
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a Warning the Health-Care Provider |
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478 | (3) |
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Sterling Drug, Inc. v. Yarrow |
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481 | (5) |
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b Warning the Patient Directly |
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486 | (2) |
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Perez v. Wyeth Laboratories Inc. |
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488 | (7) |
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2 Liability for Defective Drug Designs |
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495 | (1) |
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Brown v. Superior Court (Abbott Laboratories) |
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495 | (13) |
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3 Pharmacists' Liability for Prescription Products |
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508 | (2) |
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510 | (12) |
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1 The Tort Rules Governing Liability |
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510 | (1) |
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Crandell v. Larkin and Jones Appliance Co. |
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510 | (3) |
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Note: Tort and Contract -- Something Old, Something New |
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513 | (2) |
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2 The Role of Disclaimers in Determining Liability for Used Products |
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515 | (4) |
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519 | (3) |
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D Food, Nonprescription Drugs, and Cosmetics |
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522 | (7) |
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522 | (2) |
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2 Nonprescription Drugs and Cosmetics |
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524 | (5) |
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Chapter Eight Special Elements of the Products Liability Plaintiffs Recovery |
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529 | (60) |
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A Recovery for Pure Emotional Upset |
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529 | (6) |
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530 | (5) |
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B Recovery for Pure Economic Loss |
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535 | (14) |
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East River Steamship Corp. v. Transamerica Delaval, Inc. |
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536 | (11) |
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547 | (1) |
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Charles W. Wolfram, Modern Legal Ethics |
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547 | (2) |
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C Recovery in Toxic Torts Litigation: Special Problems |
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549 | (20) |
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1 Increased Risk of Future Injury |
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549 | (1) |
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Mauro v. Raymark Industries, Inc. |
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550 | (3) |
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2 Recovery for Emotional Upset |
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553 | (1) |
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Metro-North Commuter R.R. Co. v. Buckley |
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554 | (6) |
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560 | (1) |
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Caronia v. Philip Morris USA, Inc. |
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560 | (9) |
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D Recovery of Punitive Damages |
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569 | (20) |
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1 Legal Standards and Limits Under State Law |
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569 | (3) |
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2 Federal Constitutional Control of Punitive Damages |
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572 | (1) |
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State Farm Mutual Automobile Insurance Co. v. Campbell |
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572 | (10) |
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Philip Morris USA v. Williams |
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582 | (7) |
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Chapter Nine Products Liability in a Global Context |
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589 | (40) |
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A Products Liability Law Beyond the United States |
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589 | (16) |
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Mathias Reimann, Liability for Defective Products at the Beginning of the Twenty-First Century: Emergence of a Worldwide Standard? |
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589 | (16) |
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J Mark Ramseyer, Liability for Defective Products: Comparative Hypotheses and Evidence from Japan |
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605 | (9) |
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B Policy Challenges Posed by a Globally Integrated Product Marketplace |
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614 | (15) |
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1 The Impact of Products Liability Law on the Competitiveness of Firms |
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615 | (4) |
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2 Effects of Products Liability Law on Product Innovation |
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619 | (2) |
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3 Does the Global Marketplace Need a Global Regulator? |
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621 | (3) |
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624 | (2) |
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626 | (3) |
| Table of Cases |
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629 | (14) |
| Table of Statutes and Other Authorities |
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643 | (8) |
| Index |
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651 | |
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