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Product Liability spring 2014 Comparative Product Liability Law

Prof. George Conk Adjunct Professor and Senior Fellow, Stein Center for Law & Ethics Fordham Law School gconk@law.fordham.edu
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China Revised Tort Code 2010

41. If a product defect exists causing harm to another person, the manufacturer shall bear tort liability.

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Thalidomide

Withdrawn 1961

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EU Product Liability Directive


Council Directive 85/374/EEC of 25 July 1985 on the approximation of the laws, regulations and administrative provisions of the Member States concerning liability for defective products

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EU Directive Proposed 1976, Adopted 1985, as amended

The producer of a product is liable for damages caused by a defect in his product.

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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.
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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.
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Article 6 Defect

2. A product shall not be considered

defective for the sole reason that a better


product is subsequently put into circulation.

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Article 7 State of the art defense

e) that the state of scientific and technical

knowledge at the time when he put the


product into circulation was not such as to enable the existence of the defect to be

discovered; or
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Article 7 Component defenses

(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.
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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.
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A. and others v. National Blood Authority


English and Wales High Court of Justice, Q.B. 2001 3 All E.R. 289

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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?
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What is a consumer legitimately entitled to expect?

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.
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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.'
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Minimum risk or maximum safety

Judge Burton:

there is no question of a conclusion tht


the public is entitled to every marginal improvement in blood safety

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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
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Avoidability: if it quacks like fault.

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.
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