Professional Documents
Culture Documents
Prof. George Conk Adjunct Professor and Senior Fellow, Stein Center for Law & Ethics Fordham Law School gconk@law.fordham.edu
Comparative Product Liability 1
41. If a product defect exists causing harm to another person, the manufacturer shall bear tort liability.
Thalidomide
Withdrawn 1961
The producer of a product is liable for damages caused by a defect in his product.
Definitions
"product" means all movables except primary agricultural products and game, even though incorporated into another movable or into an immovable. Producer the manufacturer of a finished product, of any raw material or of a component part any person who presents himself as producer by trade mark or name.
Comparative Product Liability 7
Article 6 Defect
1. A product is defective when it does not provide the safety which a person is entitled to expect, taking all circumstances into account, including: (a) the presentation of the product; (b) the use to which it could reasonably be expected that the product would be put; (c) the time when the product was put into circulation.
Comparative Product Liability 8
Article 6 Defect
discovered; or
Comparative Product Liability 10
(f) in the case of a manufacturer of a component, that the defect is attributable to the design of the product in which the component has been fitted or to the instructions given by the manufacturer of the product.
Comparative Product Liability 11
Limitation of actions
Member States shall provide in their legislation that a limitation period of three years shall apply to proceedings for the recovery of damages as provided for in this Directive. The limitation period shall begin to run from the day on which the plaintiff became aware, or should reasonably have become aware, of the damage, the defect and the identity of the producer.
Comparative Product Liability 12
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Questions
What category of defect is presented? Should the learned intermediary defense prevail? What kind of defense is avoidability? What are the relevant circumstances? Negligence was not alleged but
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The CPA claims (CPA eff. Date 3/1/88) Those who received blood products infected by Hepatitis C subsequent to 1 March 1988, notwithstanding that: (i) the Hepatitis C virus itself had not been discovered or identified at the time
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The CPA claims (CPA eff. Date 3/1/88) (ii) no screening test to discover the presence of such virus in a donor's blood was even known of, certainly not available, until Ortho's assay, first publicised in spring/summer 1989
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The CPA claims (CPA eff. Date 3/1/88) (iii) not alleged NBA were negligent in not introducing the screening tests until they did on 1 September 1991. The case which is put is that they are liable irrespective of the absence of any fault, under the directive and the CPA.
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Article 6
1. A product is defective when it does not provide the safety which a person is entitled to expect, taking all circumstances into account, including: (a) the presentation of the product; (b) the use to which it could reasonably be expected that the product would be put; (c) the time when the product was put into circulation. What are the relevant circumstances?
Comparative Product Liability 18
I shall look at the steps which it is legitimately expectable that a producer in the position of the defendants would have taken, and the period of time which it is legitimately expectable they ought to have taken.
Comparative Product Liability 19
Morris v West Hartlepool Steam Navigation Co Ltd [1956] 1 All ER - Lord Reid '. . . it is the duty of an employer, in considering whether some precaution should be taken against a foreseeable risk, to weigh on the one hand the magnitude of the risk, the likelihood of an accident happening and the possible seriousness of the consequences if an accident does happen, and on the other hand the difficulty and expense and any other disadvantage of taking the precaution.'
Comparative Product Liability 20
Judge Burton:
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The ELISA Assay Test for Hep C May 1988 Chiron announces Hep C test November 1989 Export licence granted by FDA May 1990 FDA approves use July 1990 UK ACSVB Comm. Recs testing subject to the holding of various trials. January 21, 1991 Ministerial approval September 1, 1991 introduced throughout England and Wales
Comparative Product Liability 22
Bearing in mind all the circumstances, including the priority given to the elimination or reduction of PTH. My primary conclusion is that routine screening ought to have been introduced by 1 March 1990.
Comparative Product Liability 23