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jackson123

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Products Liability Question
« on: May 15, 2009, 08:22:31 PM »
Just took my torts final and have a question.  The question was dealing with a vitamin supplement that contained ephedrine and the user had a seizure.  The fact pattern talked about the label of the product saying basically that it had a poor warning and that in studies ephedrine had been linked to seizures.  The call of the question asked what advice you would give the plaintiff.  I anazlyzed the question under failure to warn and next talked about the possiblity of a strict liability products action as well as a negligence theory.  My question is:  can you have both a failure to warn and strict products liability action for the same product? Is the failure to warn action limited to products that can't be made safer? 

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Re: Products Liability Question
« Reply #1 on: May 16, 2009, 12:02:40 PM »
Well, I believe that the failure to warn or inadequate warning is a strict liability action. So it would be improper to say that you may have both because one predicates the other (failure to warn leads to strict liability). If the product is 'defective' then there are some jurisdictions that will say, 'proper' warning is not an issue because one is not expected to warnt against unknowable defects, therefore the plaintiff may want to seek a defective product suit. But in the instant case it seems that the 'community' was aware that seizures may result and if this product was not defective and only needed proper warning to those who may react differently to it then it is strict liability under the 'inadequate warning' theory. If it can be made safer and it was not then maybe there is a 'design' defect and you consider the feasible alternative test and consumer expectations test. There are many instances where a product can be made safer but is it feasible? So an action under the failure to warn is not 'really' limited to products you can't make safer but it is required for almost all products, especially medicine which carries the potential to injure, notice all the disclaimers in a med-ad on tv, im sure they can make it safer but it would alter the product. So, the logical alternative is proper warning.

Im a 0L, so my analysis may be missing a few things. Good luck 
TULANE 2012

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Re: Products Liability Question
« Reply #2 on: May 16, 2009, 12:15:17 PM »
If the product is 'defective' then there are some jurisdictions that will say, 'proper' warning is not an issue because one is not expected to warnt against unknowable defects, therefore the plaintiff may want to seek a defective product suit (UNDER A NEGLIGENCE THEORY)

Sorry, I was unclear, the defective product suit for unknowable dangers (to the manufacturer) are usually negligence suits. This is because of the obvious, we assume they (manufacturer) might have not had the proper procedure or standards in place to recognize the products defects, therefore they did not act as the prudent person would in this similar situation.
TULANE 2012

SEC_2L

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Re: Products Liability Question
« Reply #3 on: May 24, 2009, 03:41:10 PM »
Just out of curiosity...how the hell do you know that, being a 0L? Serious question because I know that I definitely did not...

If the product is 'defective' then there are some jurisdictions that will say, 'proper' warning is not an issue because one is not expected to warnt against unknowable defects, therefore the plaintiff may want to seek a defective product suit (UNDER A NEGLIGENCE THEORY)

Sorry, I was unclear, the defective product suit for unknowable dangers (to the manufacturer) are usually negligence suits. This is because of the obvious, we assume they (manufacturer) might have not had the proper procedure or standards in place to recognize the products defects, therefore they did not act as the prudent person would in this similar situation.

MUCH WILL BE ASKED

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Re: Products Liability Question
« Reply #4 on: May 25, 2009, 09:07:53 AM »
I enjoy the subject of torts. Have you taken torts already?
TULANE 2012

armando1624

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Re: Products Liability Question
« Reply #5 on: May 26, 2009, 08:18:20 PM »
Just out of curiosity...how the hell do you know that, being a 0L? Serious question because I know that I definitely did not...

If the product is 'defective' then there are some jurisdictions that will say, 'proper' warning is not an issue because one is not expected to warnt against unknowable defects, therefore the plaintiff may want to seek a defective product suit (UNDER A NEGLIGENCE THEORY)

Sorry, I was unclear, the defective product suit for unknowable dangers (to the manufacturer) are usually negligence suits. This is because of the obvious, we assume they (manufacturer) might have not had the proper procedure or standards in place to recognize the products defects, therefore they did not act as the prudent person would in this similar situation.

My Holmesian deductive abilities tell me this guy is a gunner.