3. Products Liability

• Pages: 51-78
• Author: Davis M. Walsh,Margaret A. Bowman

3

Products Liability

Davis M. Walsh and Margaret A. Bowman1

Although naturally evolved viruses and bacteria are not

“products” for potential liability purposes, the medicines and

vaccines administered to combat them certainly are. So are

medical devices, consumer products, and other items that may

be contaminated with pathogens, have a propensity to spread

infection, or fail in their intended use to help prevent the spread

of disease. The following discussion covers a wide range of legal

issues related to products liability in the outbreak context, under

the principal categories of design defect and failure to warn.

Since the 1960s, most American courts have applied strict liabil-

ity doctrines in products liability cases. This trend shifts focus

away from the intent of the manufacturer or seller and toward the

nature of the product itself. By deemphasizing good intentions, strict

liability poses potential inequities in infectious outbreak litigation.

Should a manufacturer be strictly liable for the design of a product

that could prevent or mitigate an epidemic, but may adversely affect

a small number of people? Should a seller be liable for failing to warn

1. Davis Walsh is a litigation partner at McGuireWoods LLP. Margaret Bowman is a

litigator at McGuireWoods LLP.

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of all potential risks, regardless of the rarity, or if aspects of the risk

were unknown at the time of sale?

As science evolves, so does the law. Lawsuits related to the novel

coronavirus will continue to test the efcacy of strict liability.

Although legislatures can provide guidance about many of the pol-

icy questions product manufacturers and sellers are facing, courts

and the common law undoubtedly will contribute answers as specic

facts dictate.

This chapter addresses two types of products liability causes of

action that are most likely to appear in the infectious disease arena:

design defect and failure to warn. Each of these, in turn, can be

alleged through the lens of negligence or strict liability. Then, we will

examine other, less common ways to address products liability in

this space. At the end, we offer some sample scenarios applied to

outbreak litigation.

Design Defect Claims

In common law, strict liability did not exist for defective design

claims. In fact, the concept of strict liability for design defects did not

arise until 1963, with Justice Traynor’s famous decision in Green-

man v. Yuba Power Products, Inc.2 Before 1963, products liability

claims were based on the traditional concepts of negligence or breach

of warranty. After Greenman, the American Law Institute adopted

the doctrine in the Restatement (Second) of Torts § 402A in 1965.3

Most state courts embraced strict liability in the late 1960s and early

1970s, although not all states have adopted Section 402A or a similar

form of strict liability. Delaware, Massachusetts, Michigan, North

Carolina, and Virginia still do not recognize claims for strict products

liability.4

2. 377 P.2d 897 (Cal. 1963).

3. Richard Cupp, Rethinking Conscious Design Liability for Prescription Drugs,

63 G. W. L. R. 76, 79 n.11 (1994); James A. Henderson, Jr. & Aaron D.

Twerski, A Proposed Revision of Section 402A of the Restatement (Second) of

Torts, 77 C L. R. 1512, 1512 (1992).

4. Piper Aircraft Co. v. Reyno, 454 U.S. 235, 252 n.18 (1981); see N.C. G. S.

§ 99B- 1.1; Sykes v. Bayer Pharms. Corp., 548 F. Supp. 2d 208 (E.D. Va. 2008)

(applying Virginia law); Cline v. Prowler Indus. of Md., Inc., 418 A.2d 968, 971

(Del. Super. 1980); Johnson v. Chrysler Corp., 254 N.W.2d 569, 571 (Mich. App.

52 Infectious Disease Litigation

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