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Flashcards in New New Deck (14)
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1

Mfr. Defect

-Prod deviates from intended design
-P must show
—- evidence of specific defect
Or
—- prod did not perform as intended and
—- exclude other causes not attributable to D
Of above proved res ipsa

2

Mfr. Defect 3D

- injury caused by defect
- defect exist at time of sale
- of a kind ordinary result of defect
- injury not solely caused by something else

3

Design defect
Barker
Majority

Consumer expectations
-more dangerous than ordinary consumer expects when used in intended or reasonably foreseeable manner(misuse)

Or

- in light of relevant facts design risks > design benefits.

Factors
1. Likelihood (frequency)
2. Gravity (magnitude)
3. Feasibility (possible and attainable)
4. Costs of alternative
5. Adverse consequences of alternative

4

Design defect
R3d

- in light of relevant facts design risks > design benefits.

Factors
1. Likelihood (frequency)
2. Gravity (magnitude)
3. Feasibility (possible and attainable)
4. Costs of alternative
5. Adverse consequences of alternative

P must show alternative design

5

Design defect
Consumer expectation
Maryland

Consumer expectations
-more dangerous than ordinary consumer expects when used in intended or reasonably foreseeable manner

6

Design defect
CA

Consumer expectations
-more dangerous than ordinary consumer expects when used in intended or reasonably foreseeable manner

Or

- in light of relevant factors design risks > design benefits.

Factors
1. Likelihood (frequency)
2. Gravity (magnitude)
3. Feasibility (possible and attainable)
4. Costs of alternative
5. Adverse consequences of alternative

Burden
P shows injury proximately caused by design D must prove design benefits and risks

7

Design defect
Drug

Drugs and devices
Not reasonably safe if

Foreseeable risk of harm > foreseeable therapeutic benefit

i.e. knowing of risk healthcare provider would not have prescribed it.

8

Defenses

Comparative fault - P neg.
Linegar Tradeoff - open obvious defect vs. function
State of the Art - at time of mfr. probative only
Patent Defect - affects consumer expectations
Learned Intermediary - Dr adequately warned
Assumption of the risk - knowing and voluntary
Preemption - Fed law>state law

9

Product liability
Types

Mfr
Design
Warning

10

Product liability
Black letter law

Injury to person or property
Commercial seller
Defect caused

11

Warning functions

Informed choice
Teach to use safer

12

Warning
Majority
CA

D will be liable if prod could have been safest with a warning but lacked a proper warning which creates unreasonable risk to consumers.

Only covers risks mfr knew or should have know. Post market duty to warn. No hindsight.

13

Warning
Minority

D will be liable if prod could have been safest with a warning but lacked a proper warning which creates unreasonable risk to consumers

Assumed D was aware of all risks
Allowed hindsight

14

Learned Intermediary

Drug mfr no duty to warn patient only duty to warn Dr.

Super minority
Learned intermediary does not apply to BC