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1) It has been rather consistently argued that 'one cannot derive an ought from an is'--that ethics and science are disconnected in important ways. Yet, in the Dow Corning case we see that the science of silicone/connective tissue disorder linkages is critical to the resolution of this case.
What is the relationship between science and ethics?2) While it is clear that a valid claim by a plaintiff should entitle him/her to compensatory damages, there is a serious question in any case involving punitive damages as to who ought to be awarded such damages. Offer your views on this question...Who are the appropriate beneficiaries of punitive damage awards? How is your view consistent with the intention of punitive damages, which is "to punish the wrongdoer and discourage others from similar conduct in the future"? What justification can you offer for your view?3) Given what you now know of the Dow Corning case, what (if any) is the appropriate legal remedy for those who have (allegedly) been harmed by silicone implants, and by Dow Corning in particular? What is the basis for your judgment on this issue?4) Once silicone implants were pulled from the market by Dow Corning, the biggest backlash was (surprisingly) from women's advocacy groups, who claimed that the liberty of women was being substantially curtailed by limiting their choice to either have or not have breast implants.
If a woman, fully apprised of the potential risks, were to nonetheless make the decision to have silicone breast implants, ought the manufacturer be 'held harmless' for any resultant harm to her? How does your response 'square' with the notion of assumption of risk, contributory negligence, and or comparative negligence as outlined in your course reading?5) One remedy available at law is restitution. What might this look like in the Dow Corning case?6) "Torts are traditionally classified on the basis of how the harm or injury was inflicted: intentionally, negligently, or without fault (strict liability)."
Which of these categories best 'fits' the Dow Corning case? On what basis have you made this determination?7) To further elaborate on the above question, what are the three main elements needed to establish the legal requirement of intent? What are the four main elements needed to establish the legal requirement of negligence? Which of these elements were in evidence in the Dow Corning case?8) "In determining whether a person's conduct is negligent, the law applies a standard of reasonableness. The standard is usually stated as ordinary care or due care, as measured against the conduct of a hypothetical person--the reasonable person... The reasonable person represents a standard of how typical persons in the community ought to behave..."
What connection between law and ethics is implied in this construction? And...how are we to know how a typical person ought to behave?9) Now that we are on the topic...what is a tort anyway? And an easier question...what is a business tort?10) What is the purpose of tort law, as opposed to criminal law?
11) In the case of White v. Monsanto Company (p. 228), the finding of the court of appeal determined that "[t]he brief, isolated instance of improper conduct by the supervisor who lost his temper was the kind of unpleasant experience persons must expect to endure from time to time." Given your brief read of the case, do you agree? If not, what, in your opinion, would be the appropriate penalty to be imposed?
12) In the case of Monette v. AM-7-7 Baking Company Ltd. (p. 235), a careful distinction is made between the tort of intentional interference with contractual relations and intentional interference with prospective economic advantage. Why is this distinction significant in this case?
13) Outline the differences between the notions of negligence in tort and strict liability. Is it 'right' to require "manufacturers to compensate consumers injured by defective products even though the manufacturer excercised all reasonable care"?
14) 'Failure to warn' is one particular manifestation of the doctrine of strict liability. Comment on the following cases, outlining what the manufacturer might have done in each instance to avoid legal liability:
A Pennsylvania court found that a gun manufacturer that had failed to warn users of possible damage to their hearing from long-term exposure to gun fire was strictly liable for such injuries.14) 'Design Defects' is one particular manifestation of the doctrine of strict liability. Comment on the following cases, outlining what the manufacturer might have done in each instance to avoid legal liability:A Texas court found a liquor manufacturer liable for failing to warn consumers about the adverse health effects associated with drinking its products. In the case, an eighteen-year-old first-year college student died after consuming a large quantity of tequila.
The Supreme Court of Alaska upheld a verdict against a diet food producer who failed to provide adequate warnings about using the adult diet food as baby food. Because the food was safe for dieting adults but not for infants, the company should have stated so on its product rather than assume that adults would have enough sense not to use the product as baby food.
The highest court of New York held liable the producer of a commercial pizza dough roller machine for injuries suffered by a worker who stuck his hands in the machine while it was on as he tried to clean it. Although the machine had a safety switch that was supposed to be used in such cases, the worker had turned off the safety switch so he could stick his hands in the machine. The manufacturer failed to warn when it did not clearly explain the dangers of turning off the safety switch.
The Eleventh Circuit Court of Appeals held that the warnings printed on a bottle of Campho-Phenique, an external medicine, stating "Keep out of reach of children," "For external use," and "In case of ingestion--seek medical help and call poison center" were not strong enough to explain the dangers. A four-year-old child drank the medicine and suffered severe injuries. The suit proceeded on the basis of failure to warn.
In a Washington State case a worker received a $750,000 judgment for the loss of a leg. The accident occurred at work. Co-workers had removed a metal plate from the top of the machine. When they finished repairing the machine, the workers failed to put the metal plate back on and covered the machine with cardboard. The plaintiff later walked on what he thought was the metal plate, as was customary, and fell into the machine. The court held that it was a design defect to allow the machine to be able to run when the metal plate was removed.A restaurant employee was seriously burned when he tried to retrieve something that fell out of his pocket and into a commercial French fryer machine. The D.C. Circuit Court of Appeals held that a jury could find a safer alternative design of the machine was possible, in which case it could impose liability.
A child pushed the emergency stop switch button on an escalator, causing a person to fall and be injured. The Seventh Circuit of Appeals ruled it was a design defect to both make the button red, because that color is attractive to children, and place the button so that is was accessible to children.
In an Eleventh Circuit Court of Appeals case, the plaintiff was injured when he took his riding mower up a hill that was too steep, the mower rolled over, and he was cut by the whirring blades. The court held that there was technology in existence at the time the mower was built that would have caused the mower to automatically shut off when the mower was lifted off the ground or when the rider let go of the controls. Because such technology was not included in the product's design, the manufacturer was strictly liable for the plaintiff's injuries.
16) Outline the defenses in product liability suits, and the liability implications of each of these defenses.
17) Based upon the above cases, what recommendations might you make to Qualcomm regarding its products?
18) In light of the above cases, what (if any) recommendations might you offer to accomplish tort reform?
19) Apply the principles of crashworthiness to the Pinto case.
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