Recently in Products Liability Category

Bob Dorigo Jones has this year's finalists in the Wacky Warning contest. Of course, wacky warnings aren't just silliness created by the legal system. As I noted in 2010, wacky warnings cost consumers money, and make us less safe.

Related: Bluetooth class counsel claims wacky warning worth nearly a billion dollars.

Must all playground slides be straight and dull on pain of liability for "design defect," as Max Kennerly implies or can a manufacturer give parents the option to supervise children to play on a slide with some curves? Nick Farr defends. NB the rhetorical imprecision of Kennerly turning sixteen injuries into "odds are pretty good a kid is going to fall off and break their arm or knee when they land." Sixteen injuries may be too high to permit the product to be sold as is; I don't know what a reasonable baseline comparison is, or the size of the denominator. Certainly any playground equipment of height that isn't a barred cage permits a child to fall off and break an arm or a knee, and it certainly can't be the case that any risk of injury is too much risk, or that any product less safe than the most safe product is defective. If the ratio of injuries to slides used is much higher than average, I could certainly concede that a product is unreasonably unsafe. Kennerly's proposed solution, as well as that of the complaint in one lawsuit, however, is ridiculous: bigger warning labels. A warning label on a slide is just going to teach children to ignore warning labels; and any parents who don't understand the law of gravity aren't going to be educated by the label on a slide. The only conceivable label that could make a difference is "Don't Use." Either the Evos Slalom Glider is too unsafe to be sold at all (a possibility I don't rule out), or it isn't; let's not abuse the failure-to-warn doctrine.

Kip Viscusi in a must-read Regulation article (h/t OL):

The first class of problems stems from the judgment biases
of jurors. Because of loss aversion biases, jurors will impose
excessive penalties on novel risks. Because of hindsight biases,
jurors will believe incorrectly that the risk could have been
anticipated.

The second class of problems arises from excessive levels of
damages. Although jurors tend to agree about what behavior
is blameworthy, they are all over the map in assessing damages.
Compensatory damages for economic loss are reasonably well
defined. However, assessments of pain and suffering awards
and punitive damages awards are fraught with error, no doubt
in part because jurors are not given firm guidance with respect
to how they should go about setting the level of these damages.
The result is that there may be multi-billion-dollar blockbuster
punitive damages awards, but these awards do not enhance
safety because they are random, rare events. More generally, for
large levels of punitive damages costs, there is in fact a counterproductive
effect of punitive damages that discourages product
improvements and new product introductions. Exiting the market
altogether is often the desired course.

Third, firms are hampered in their efforts to reduce risks
in an efficient manner by juror aversion to the measurement
of risk. Companies that conduct risk analyses are vilified for
intentionally endangering the public. When confronted with
particular injury cases, the jury's balancing abstracts from the ex
ante expectations that necessarily guide corporate decisions and
instead compare the identifiable victim with the product-specific
cost of greater safety.

And don't miss the reading list at the end. The Regulation essay is a shorter version of one that will be in a collection called The American Illness, which looks to be a must-read. I discussed many of the same problems in my 2007 essay, "Rollover Economics."

Speaking of the auto industry, Amy Alkon points us to a proposed NHTSA rule that would add $2.7 billion to the price of automobiles to make it slightly less likely that careless parents will back over their children: mandatory rear-view cameras. Of course, even without the NHTSA regulation, it's only a matter of time before product liability lawyers allege that the failure to include such cameras is a defect and that auto manufacturers should be assessed punitive damages for failing to prevent a bad driver from backing over his or her child.

Twenty years ago today, Stella Liebeck spilled hot McDonald's coffee on herself, and trial lawyers and their allies are still defending the idiosyncratic and absurd multi-million verdict allowing her to collect for her own accident. Thankfully, that case remains an outlier, and Starbucks, Dunkin' Donuts, Burger King, Wendy's, home brewing systems, and, yes, McDonald's, have not let the risk of customers' clumsiness keep them from continuing to serve coffee at the same (or even higher) temperatures than they did twenty years ago, to the benefit of the billions of times consumers buy coffee at the temperatures they prefer. Here's a court that got it right.

1.7 million Tassimo coffee brewers are being recalled after several dozen incidents where the "T-cups" burst open and caused second-degree burns. Note the distinction between a product-liability case like Tassimo (where the allegation would be that a design defect causes hot coffee to spill on people) and one like Stella Liebeck's (where she alleged that any coffee that could potentially cause burns was defective because she spilled it on herself). Note also that the existence of the Tassimo burn cases refutes the very notion in the McDonald's case that it is unusual for coffee to be hot enough to cause hospitalizations.

Gregory Conko, a senior fellow at the Competitive Enterprise Institute, a Washington D.C.-based think tank, asked an important question in a piece published on our sister blog Medical Progress Today. Who should be liable when a patient is injured by a generic drug?

In a case called Conte v. Wyeth, a California Intermediate Appellate Court in San Francisco held that, since plaintiffs can't sue a generic manufacturer for negligent failure to warn, then they should be able to sue the innovator manufacturer who had some control over the contested labeling -- even if the patient didn't take the innovator's product, and even if the innovator is no longer manufacturing the off-patent drug and therefore no longer keeping its labeling up to date.

Conko tackles the "reasonably foreseeable" theory that emerged from the Conte decision and discusses the potential implications that the broad adoption of such tort theory can have on innovation. While the analysis doesn't call for a particular legal solution, Conko provides insight into a potential Supreme Court issue.

Litigation-lobby front Center for Justice and Democracy is still falsely claiming that McDonald's "coffee was as hot as a car radiator." As we've previously noted, "A car radiator temperature, between chemical coolants and pressurization, is between 195 and 225 degrees Fahrenheit. Stella Liebeck's coffee was between 170 and 180 degrees, and would rapidly cool when exposed to room temperature."

Note also the humor in CJD's use of the passive voice: Liebeck was injured when "McDonald's coffee spilled in her lap." Well, who could complain about a lawsuit where coffee magically spilled itself? Oh, Stella Liebeck spilled the coffee on herself? Gee, that would seem a fact relevant to the assignation of proximate causation when evaluating whether it's appropriate to criticize a court that allowed this case to get to a jury, unlike over 90% of other courts that have dealt with cases similarly claiming that hot coffee was a "defective product."

Liebeck's injuries came from dumping an entire cup of coffee in her own lap while sitting in a car without a cup-holder, and then sitting in that hot coffee for well over a minute while wearing absorbent clothing. As Liebeck's own lawyer claimed, any coffee hotter than 140 degrees would be "unsafe" in those conditions. Unless you wish juries to have the power to punish vendors like McDonald's and Starbucks and Dunkin Donuts and everyone else that commercially sells coffee, that's no more McDonald's fault than it is Liebeck's auto manufacturer or sweatpants manufacturer.

That CJD and Susan Saladoff single out the poster child of abusive litigation as the point of attack on the tort reform movement—without ever fairly addressing the actual arguments tort reformers make—shows the bankruptcy of that attack.

Update, January 27: Welcome, readers of the dishonest "Pop Tort" blog. Note how they cherry-pick a couple of websites that say that radiator temperatures are 190 degrees. Of course, 190 degrees is hotter than Stella Liebeck's coffee (which, even if was "held" at 190 degrees, which there was no evidence of, would rapidly drop in temperature as soon as it stopped being held at that temperature); moreover, most websites give much higher temperatures for car radiators: "Most engines today are designed to operate within a "normal" temperature range of about 195 to 220 degrees F"; (same); many thermostats are set at 195 degrees for car radiators, etc. The only reason to use the "car radiator" analogy is to mislead. At best, a car radiator has such a wide range of temperatures that it is meaningless to use the analogy; if you're saying that Stella Liebeck's coffee is as "hot as a car radiator" because you're claiming that car radiators are 160 degrees, well, Starbucks and Dunkin Donuts and McDonald's and Burger King and Wendy's and Caribou Coffee and 7-Eleven and Cosi are selling coffee today that's hotter than 160 degrees—much less the 140 degrees that Stella Liebeck's lawyer claims makes coffee "unreasonably dangerous."

Note further how Pop Tort makes up a brand new theory of liability for McDonald's—that the cups were not capable of holding hot coffee—that not even Stella Liebeck's lawyer had the chutzpah to argue. Of course, there's no evidence for the proposition that McDonald's was selling coffee in cups that would collapse if "poked by a finger"; if they were, then the rate of injury from coffee spills would be far higher than 1-in-23-million cups (i.e., several times less likely than being struck by lightning).

Note further that CJD still has no answers for the actual arguments tort reformers make against the Liebeck verdict and the judge's erroneous legal decision to let the case get to a jury. Instead, all their website offers is ignorant snark. The question remains: if CJD is in the right, why can't they simply address the issues? Their reliance on dishonest arguments and misleading non sequiturs seems to be part of their business model.

For $1600-$3000 or so, it's possible to buy a top-of-the-line table saw with "SawStop" "flesh detection" technology—if you don't mind paying $175 every time a false positive mistaking a wet pocket in wood for flesh drives an aluminum block into the blade and cartridge. Or you can simply buy a relatively high-quality table saw for less than half that price and be more careful. Of course, if lawyers have their way, you won't have that choice: the First Circuit has upheld a $1.5 million verdict on behalf of a plaintiff who lost his finger in a cheaper saw, theorizing that the absence of the top-of-the-line technology was a product defect. The CPSC is proposing regulations that would take away the consumer choice to buy cheaper saws without flesh-detection technology, pushed in part by lobbying by the inventors of the SawStop. [Osorio v. One World Tech. via Torts Today via Torts Prof; CPSC press release; Fine WoodWorking; Overlawyered coverage of trial-court verdict]

As David Oliver points out, we correctly don't hold scientists liable for making mistakes in cutting-edge science; when an Italy even considers the issue, as they did in an unsuccessful criminal prosecution of scientists that failed to predict a deadly earthquake, we justifiably ridicule them. Science is a process of trial and error, and we want scientists to explore hypotheses that might be wrong without fear of legal consequence for failure. So why do we hold manufacturers liable for failing to anticipate the future judgments of lay juries evaluating the predictions of scientists presented at trial testimony, most of which are arguable at best?

Of course, this sort of double-standard is common. We don't hold lawyers liable for the larger effects on society when they use abusive litigation to make us less safe by driving safe and effective products from the marketplace. We let juries second-guess doctors when experts disagree over the correct course of medicine, but give that discretion to attorneys free from liability.