When the American Law Institute decided to launch a new Restatement of Torts in 1992, it started with the torts topic that most urgently needed restating: products liability. After being parsed in thousands of appellate opinions that took divergent paths, American products liability law needed clarification, which took form in Restatement (Third) of Torts: Products Liability, adopted in 1998. Brooklyn Law School Irwin and Jill Cohen Professor of Law Aaron D. Twerski and James A. Henderson Jr. were the Reporters for that Restatement.
In November 2008, the Reporters were reunited and joined by a distinguished assembly of academics and expert practitioners in products liability who addressed whether the Restatement has accomplished its mission. Panelists at the symposium, “The Products Liability Restatement: Was It a Success?,” spent two days analyzing Restatement provisions and their effects on the law. The symposium was co-sponsored by the Brooklyn Law Review; Gair, Gair, Conason, Steigman & Mackauf; Herzfeld & Rubin, PC; and Shook, Hardy & Bacon LLP. Two of the country’s foremost experts on products liability law — Brooklyn Law School’s Anita and Stuart Subotnick Professor of Law Anita Bernstein and Twerski, the Irwin and Jill Cohen Professor of Law — organized the event.
Brooklyn Law School Professor Edward Cheng led the first panel, which addressed design defects. Cheng offered several factors to consider when evaluating Restatement provisions, including whether a design meets consumer expectations, whether the design provides more utility than its risk, whether there is a reasonable alternative design, and whether the product is ultra-hazardous. The panelists discussed issues that arise with expert witnesses, burdens of proof, and the requisite standards for juries to decide cases.
The second and third panels addressed drugs and defenses to liability, respectively. Sections 16 and 17 focus on liability defenses. Under Section 16, a defendant is liable for increased harm. Thus, defendants must compensate for an injury made worse because of the defective design. To conclude, participants looked at a series of hypothetical situ¬ations and discussed whether the law should allow recovery.
Federal preemption, which is not specifically addressed by the Restatement, was the subject of the fourth panel. Mary J. Davis, an associate dean and professor at The University of Kentucky College of Law, stated that the law has been perpetually uncertain in its preemption jurisprudence. The panel then discussed preemption with agency regulation, arguing for conflict preemption. Under conflict preemption, not every agency regulation would displace state tort law; rather, agency regulation would displace state tort law only where the two conflict.
The fifth panel addressed the Restatement’s treatment of failure to warn. Panelists discussed the strict duty to warn at the time of a product’s sale as well as the post-sale negligence duty to update. They also discussed the future of products liability law, addressing the significant impact president-elect Barack Obama’s federal judicial appointments will have on products liability litigation, as well as the potential impact of the economic situation on litigation. With contracting economies, courts may curtail litigation, panelists pointed out. Health care industry developments may also impact litigation, they said, because any type of health care safety net makes the need for tort recovery less compelling.
The last panel considered the next decade in products liability. Discussion leader Professor Stephen Gilles of Quinnipiac University School of Law framed the panelists’ predictions and hindsights with refer¬ence to the Restatement. Professor Bernstein finished the panel’s presentations by arguing that courts should develop a new doctrine she called “implied reverse preemption.” The Honorable Barbara J. Rothstein, U.S. District Judge for the Western District of Washington and director of the Federal Judicial Center, concluded the symposium, calling the Restatement “an amazing success” and the symposium a “complex, fascinating and varied” day and a half.
The three law firms that co-sponsored the symposium all have thriving litigation practices that focus at least in part on products liability cases. New York-based Gair, Gair, Conason, Steigman & Mackauf represents plaintiffs in claims arising from construction accidents, medical malpractice, products liability, police brutality and violations of civil rights. Herzfeld & Rubin, PC specializes in products liability, real estate, corporate, wills and estate planning matters. Shook, Hardy & Bacon LLP is an international law firm that has been named “Global Product Liability Law Firm of The Year” for four consecutive years by Who’s Who Legal, and has been involved in many major tort reform initiatives over the last 25 years.
Read papers from the Symposium.