Type of defects most commonly around found in products liability actions

Full Answer Section

• • The defect existed at the time the product left the manufacturer's control.
  • The defect caused the plaintiff's injury.
• Examples:
  • A car manufactured with faulty brakes due to an improperly installed component. While the design of the brakes might be safe, the specific car had a brake system that didn't function as intended.
  • A bottle of medication that contains a contaminant introduced during the packaging process, making that specific bottle unsafe even though the medication itself is properly formulated.
  • A chair with a weld that was improperly done during assembly, causing it to break and injure the user.

2. Design Defects:

• What is Required: A design defect exists when the entire product line is inherently dangerous or flawed due to a problem in the product's specifications or design. This means that even if the product is manufactured exactly as intended, its design makes it unreasonably unsafe for its foreseeable uses.
• Analysis: Proving a design defect often involves demonstrating:
  • The product's design created a foreseeable risk of harm.
  • There was a safer alternative design that was economically and technologically feasible at the time the product was manufactured.
  • The alternative design would have prevented or reduced the plaintiff's injury.
• Examples:
  • A vehicle designed with an unstable center of gravity, making it prone to rollovers during foreseeable maneuvers. Even if each vehicle is manufactured perfectly to the design, the design itself is inherently dangerous.
  • A power tool designed without an adequate safety guard, increasing the risk of injury during normal use, when a feasible and safer guard design existed.
  • Clothing made with a highly flammable material that catches fire easily during foreseeable use near heat sources, when a reasonably safer, flame-resistant material could have been used.

3. Failure to Warn (Marketing Defects):

• What is Required: A failure to warn defect occurs when a product, while potentially safe in its design and manufacture, lacks adequate warnings or instructions about non-obvious risks associated with its foreseeable use. This includes a failure to inform users about proper handling, potential side effects, or limitations of the product.
• Analysis: To establish a failure to warn, the plaintiff typically needs to show:
  • The product presented a foreseeable and non-obvious risk of harm during its intended or reasonably foreseeable use.
  • The manufacturer or seller failed to provide adequate warnings or instructions about this risk.
  • The lack of adequate warnings or instructions was a proximate cause of the plaintiff's injury.
• Examples:
  • A medication that causes a rare but serious side effect, and the packaging does not adequately warn consumers about this potential risk.
  • A cleaning product that can release toxic fumes if mixed with another common household cleaner, and the label fails to provide a clear warning against such mixing.
  • A piece of machinery that requires specific safety precautions for operation, and the instruction manual fails to clearly outline these precautions, leading to user injury.

In summary, product liability actions often center around proving one of these three types of defects: a flaw in the specific product (manufacturing), a flaw in the blueprint for all products in the line (design), or a flaw in the information provided to the consumer about the product's risks (failure to warn). Each type of defect requires distinct elements of proof to establish liability.

United States Antitrust Law and International Joint Ventures

Does the United States allow for joint ventures in international markets that would not be permitted under anti-trust laws in the United States? Why or why not?

Yes, the United States generally does allow for joint ventures in international markets that might not be permitted under domestic antitrust laws. This is primarily due to the application of the Foreign Trade Antitrust Improvements Act (FTAIA) of 1982 and the broader principles of international comity and the promotion of U.S. export trade.

Why:

• Foreign Trade Antitrust Improvements Act (FTAIA): The FTAIA clarifies the extraterritorial reach of U.S. antitrust laws (specifically the Sherman Act and the Federal Trade Commission Act). It generally provides that these laws do not apply to conduct involving trade or commerce with foreign nations unless that conduct has a direct, substantial, and reasonably foreseeable effect on:

  • Trade or commerce that is wholly within the United States.
  • Import trade or commerce with the United States.
  • Export trade or commerce of a person engaged in such commerce in the United States.

  This means that if a joint venture's primary impact is on foreign markets and it doesn't directly and substantially harm U.S. domestic commerce, import commerce, or the export commerce of a U.S. entity, it is likely to fall outside the purview of U.S. antitrust laws, even if a similar venture purely within the U.S. would be anticompetitive.

• International Comity: U.S. courts often consider the principle of international comity, which is the respect that nations owe each other. Applying U.S. antitrust laws too aggressively to conduct primarily affecting foreign markets could lead to conflicts with the antitrust laws and policies of other nations.

• Promotion of U.S. Export Trade: There is a policy interest in facilitating the ability of U.S. companies to compete effectively in international markets. Sometimes, joint ventures with foreign companies are necessary for U.S. firms to enter or succeed in these markets. Prohibiting such ventures based solely on domestic antitrust concerns could disadvantage U.S. businesses internationally.

Example:

Imagine two large U.S. telecommunications companies want to form a joint venture to bid on a contract to build a national fiber optic network in Kenya. If these two companies were to form a similar joint venture to build a network solely within the United States, it might be challenged by U.S. antitrust authorities due to concerns about reduced competition in the U.S. However, their joint venture in Kenya, primarily affecting the Kenyan market and not having a direct, substantial, and reasonably foreseeable effect on U.S. commerce as defined by the FTAIA, would likely not be subject to U.S. antitrust scrutiny.

Should this be changed?

The question of whether this approach should be changed is a complex one with valid arguments on both sides:

Arguments for Maintaining the Current Approach:

• Promotes U.S. Competitiveness: Allows U.S. firms to participate in international projects and markets they might not be able to enter alone, fostering economic growth and job creation in the U.S.
• Respects National Sovereignty: Acknowledges the right of other nations to regulate competition within their own borders and avoids imposing U.S. antitrust policies extraterritorially in a way that could cause diplomatic friction.
• Focuses U.S. Antitrust Enforcement: Allows U.S. antitrust agencies to concentrate their resources on conduct that directly harms U.S. consumers and businesses.

Arguments for Potential Changes or Stricter Scrutiny:

• Potential for Indirect Harm to U.S. Interests: Some argue that anticompetitive behavior by U.S. companies in foreign markets could indirectly harm U.S. consumers or businesses in the long run, for example, by reducing innovation globally or by creating powerful international players that could later impact the U.S. market.
• Ethical Considerations: Some believe that U.S. companies should adhere to the principles of fair competition globally, regardless of the direct impact on the U.S. market. Allowing conduct abroad that would be illegal at home could be seen as a double standard.
• Leveling the Playing Field: Concerns exist that allowing U.S. companies to engage in joint ventures abroad that would be prohibited domestically could give them an unfair advantage over foreign competitors who might be subject to stricter local antitrust laws.

Conclusion on Whether to Change:

There is no easy answer to whether the current approach should be changed. The FTAIA represents a balancing act between promoting U.S. export trade and preventing anticompetitive conduct that harms U.S. interests. Any changes would need to carefully consider the potential impacts on U.S. businesses' ability to compete internationally, the principles of international comity, and the potential for both direct and indirect harm to U.S. consumers and the global competitive landscape. A nuanced approach that allows for case-by-case analysis and considers the specific market dynamics and potential for harm might be more appropriate than a sweeping change to the current framework.

Sample Answer

Types of Defects in Products Liability Actions

In products liability actions, which hold manufacturers, distributors, suppliers, retailers, and others in the chain of commerce responsible for injuries caused by defective products, three main types of defects are most commonly found:

1. Manufacturing Defects:

• What is Required: A manufacturing defect occurs when a specific product departs from its intended design during the manufacturing process. This means that the particular product that caused the injury is flawed compared to other identical products made by the same manufacturer. The focus is on a flaw in the production of a specific item.
• Analysis: To establish a manufacturing defect, the plaintiff typically needs to show:
  • The product deviated from the manufacturer's design specifications or performance standards.