Causation in fact in product liability failure to warn cases
Article Abstract:
A showing of causation of fact, required in product liability failure to warn litigation, is often problematic because of the inherent difficulty in proving an omission, such as a failure to warn, actually caused the harm. In actions involving multiple omissions, another potential problem is the application of the but for test, used to determine the harm would not have occurred if a warning had been issued. Courts should look to the policy basis for the warning requirement, generally either a reduction of risk or promotion of individual autonomy. The two types of relevant warnings are risk-reduction warnings such as self-use instructions and safety-enhancing informed-choice warnings, and informed-choice warnings that do not enhance safety.
Publication Name: Journal of Products and Toxics Liability
Subject: Law
ISSN: 0967-2680
Year: 1995
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The impact of the Cipollone case on federal preemption law
Article Abstract:
The US Supreme Court's plurality opinion in Cipollone v. Liggett Group, holding that the Cigarette Labeling and Advertising Act preempts all state tort claims against tobacco manufacturers, demonstrates different judicial views on preemption. The majority of the Court, seizing on statutory language prohibiting state labeling or advertising restrictions inconsistent with the Act, reasoned that Congress intended to preempt state tort claims because preemption of other claims is not expressly mentioned. A minority of the Court construed the provision broadly, seeing any mention of preemption as statutory intent to prohibit all state tort claims.
Publication Name: Journal of Products and Toxics Liability
Subject: Law
ISSN: 0967-2680
Year: 1993
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Preemption bars and tort claims for agricultural workers exposed to pesticides
Article Abstract:
Farmworkers seeking tort damages for pesticide exposure often face preemption bars and cultural issues impeding their toxic tort suits. Federal laws that control pesticides and limit exposure, along with states' workers' compensation laws, are useful protections for migrant and agricultural laborers. Toxic tort suits, often barred by statutes of limitations or hampered by difficulties in establishing causation, have been successful when based on strict liability. Another possible cause of action may be deliberate indifference.
Publication Name: Journal of Products and Toxics Liability
Subject: Law
ISSN: 0967-2680
Year: 1995
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