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Bad Blood: U.K. and U.S.A. - The Jurisprudence of Product Stewardship

Bad Blood: U.K. and U.S.A. - The Jurisprudence of Product Stewardship

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Published by George Conk
by George W. Conk
Adjunct Professor & Senor Fellow
Fordham Law School

In this unpublished 2003 paper I begin to develop the idea of product stewardship.

In A v. National Blood Authority, 3 All E.R. 289 (2001) the parties conceded that transfused blood is governed by product liability law under the European Directive.
The reasonable expectation of consumers was not met by the hepatitis contaminated blood - a circumstance that could have been avoided but for the NBA's dilatory employment of an effective test for the presence of the Hepatitis C virus.

copyright George W. Conk (2003)
by George W. Conk
Adjunct Professor & Senor Fellow
Fordham Law School

In this unpublished 2003 paper I begin to develop the idea of product stewardship.

In A v. National Blood Authority, 3 All E.R. 289 (2001) the parties conceded that transfused blood is governed by product liability law under the European Directive.
The reasonable expectation of consumers was not met by the hepatitis contaminated blood - a circumstance that could have been avoided but for the NBA's dilatory employment of an effective test for the presence of the Hepatitis C virus.

copyright George W. Conk (2003)

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Published by: George Conk on Apr 22, 2014
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Bad Blood: U.K. and U.S.A. - The Jurisprudence of Product Stewardship
George W. Conk 
*
Introduction
The idea is deeply entrenched in the minds of many that there is something wrong withmodern products liability law. Product liability law has been celebrated by some as “good for America” because it brings “discipline” to corporate America.
1
 But for others it is a failure thathas damaged manufacturing efforts, and offered punishment where incentive is needed.
2
 Theidea that there is something wrong with strict liability for products goes back a long way, and hasexcellent pedigree. Prof. Fleming James, Jr., the torts treatise author and early apostle of thestrict liability gospel,
3
 urged in 1956 at a Torts Roundtable at an AALS
4
 meeting that “strictliability is to be preferred over a system of liability based on fault wherever you have anenterprise or activity, beneficial to many, which takes a more or less inevitable accident toll of 
*
 Adjunct Professor, Fordham Law School; Elected member, American Law Institute; partner, Tulipan & Conk, P.C., South Orange, New Jersey.
1
 C
ARL
T.
 
B
OGUS
,
 
W
HY
L
AWSUITS ARE
G
OOD FOR
A
MERICA
 3, 5 (2001). [“Productsliability is both the common law’s greatest advancement of the twentieth century and a subject of great controversy...The ballot box is not democracy’s only instrument. The people, after listening to evidence and reasoned arguments, work their will in the jury box as well. The tortsystem is a system of disciplined democracy...”]; Michael L. Rustad,
The Jurisprudence of  Hope: Preserving Humanism in Tort Law
, 28
 
S
UFFOLK
U.
 
L.
 
EV
.
 
1099 (1994) [celebrating thelife and work of Prof. Thomas Lambert, who wrote “The blessing of
 Beshada
 [v. Johns ManvilleProducts Co., 90 N.J. 191, 447 A.2d 539 (1982)] is surely a consecration of the aims and goals of strict liability to maximize consumer protection, serve as a spur to safety incentives, simplify the plaintiff's burden of proof in products litigation, and achieve a more equitable distribution of losses from product failure.”]
2
 See, e.g., J
ULES
L.
 
C
OLEMAN
,
 
ISKS AND
W
RONGS
, 414-15 (1992) ("Together the ruleof strict liability in conjunction with the design defect tests have wreaked havoc within themanufacturing sector of the economy.... The modern solution has failed to provide what we seek,a principled, rational, and predictable body of law regulating product safety."); R 
ICHARD
A.E
PSTEIN
,
 
S
IMPLE
ULES FOR A
C
OMPLEX
W
ORLD
 103 (1995) ("Breakthroughs in technology and treatment need carrots, not sticks.").
3
 Harper & James, Law of Torts (1946)
4
 Association of American Law Schools.1
 
human life and limb...”
5
 Dean Leon Green responded that he would go “as far as Professor James” in advocating “implied warranty”, and “severe” or “strict liability” for “food-chemical products (that) are supplied ready for immediate consumption”. But “injuries resulting frommechanical products can be more acceptably adjusted as between the victim and themanufacturer...through negligence law than through any other means the judicial process has yetdeveloped.”
6
James’s view flowered in the 1965 Second Restatement of Torts which declared in §402A the principle that liability for defective products should be imposed even when themanufacturer exercised all possible care in the preparation of the product. After an initial period of celebratory efflorescence scholars and courts have sought to return the law of product liabilityto the familiar confines of negligence law.
7
 The effort has largely succeeded.
8
 The law of  product liability has been absorbed into the general law of negligence. Product liability law hasthus been normalized. But despite this normalization the idea persists that there is somethingwrong - that there is something severe or different about product liability law and that certain producers should not be subject to the duty of ordinary care which is characteristic of the law of 
5
 Fleming James, Jr.,
General Products - Should Manufacturers Be Liable Without  Negligence?
, 24 Tenn. L. Rev. 923 (1957).
6
 Leon Green,
Should the Manufacturer of General Products Be Liable Without  Negligence?
, 24 Tenn. L. Rev. 928 (1957).
7
 See, e.g. David G. Owen,
Products Liability Law Restated 
, 49 S.C. L. Rev. 273, 277 -278 (1998): From the mid-1960s to the mid-1980s, section 402A's doctrine of strict products liability in tort for the sale of defective productsspread like wildfire from state to state, as one court after another,and an occasional state legislature, "adopted" the new doctrine. n30 With the increasing social and govern-mental conservatism of the 1980s, however, judicial (and legislative) enthusiasm for section 402A's "pro-consumer" doctrine began to falter. Duringthis time, judicial and scholarly attention began to shift away fromexamining why and how the new products liability doctrine should  be expanded toward why and how the doctrine should be curtailed.
8
 Restatement of the Law (Third), Torts: Products Liability, § 2, comments and Reporters’ Notes, passim; Mark Geistfeld,
 Escola v. Coca Cola Bottling Co.: Strict Products Liability Unbound 
, T
ORTS
S
TORIES
, Robert L. Rabin and Stephen D. Sugarman, eds. (2003) 239,251 [Regarding manufacturing defects, “[i]f (through employment of the doctrine of res ipsaloquitur) defect alone establishes negligence, a seller is always liable for defective products.  Negligence becomes equivalent to strict liability...Strict liability for design and warningdefects...has turned out to be indistinguishable from negligence...Consequently, a rule of strictliability for design and warning defects is merely another name for negligence liability.]2
 
negligence.The idea persists particularly that drug and medical device product manufacturers should not be treated like other manufacturers. A strong expression of that is the controversial provision of the Third Restatement of Torts: Products Liability, § 6 (c). The American LawInstitute urges exemption of prescription products from the normal rule of liability for designdefect - that if an alternative safer design has been unreasonably omitted the product is defective.Only two courts have reached the question. The first, the Nebraska Supreme Court,rejected the Restatement view in Freeman v. Hoffman LaRoche. The second court, the GeorgiaCourt of Appeals, an intermediate appellate court, divided. Two panel members rejected the ALIrule. But the third judge embraced the Restatement’s exceptional rule for prescription drugs and devices.
9
Since the ALI’s promulgation of the Second Restatement of Torts drugs have been thesubject of particular attention and dispute in the law of products liability. § 402A’s comment k has been read by some as a defense and by most as a mandate for a case-by-case negligence- based review. The former reporters for the Products Liability Restatement, disdain the lawderived from comment k as “gibberish”. They decided to start over from scratch without evenattempting to “restate” the drug product law of the Restatement 2d era.This essay contends that drugs, biologics, and medical devices should be treated likeother products. Their sometimes great social utility is irrelevant to the choice of what standard of care should be imposed by the law of torts. Using blood cases as an exemplar, this essayembraces the law of negligence as adequate to the task of judging when a product is defectiveand compensation owed for harm done by it. It explicates the majority and minority views inBryant, and examines three blood cases - one in England and two in the United States - to showthat absorption of product liability law into that of negligence is warranted, that product liabilitylaw has been normalized, and demonstrates that the legacy of the product liability revolution of the 1960's is a jurisprudence of product stewardship which provides a coherent standard appropriate for all producers, whether governmental, non-governmental, or commercial.
Origins of Modern Product Liability Law
The origins of the modern era of product liability tort law is a story is oft-told. In 1944Justice Roger Traynor, concurring in an exploding soda bottle case,
 Escola v. Coca Cola Bottling Co.
10
, called for “absolute” liability to the consumer. The first trumpet had sounded inwhat William L. Prosser, in one of the most-cited law review articles ever written, called the
9
 2003 Ga. App. LEXIS 945 (decided July 16, 2003).
10
 150 P. 2d 436 (Cal. 1944 (Traynor, J., concurring).3

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