Thanks for joining this episode of the No. 86 lecture series, where we discuss basic principles and applications of Tort Law along with landmark cases. Today's episode features Gregory Dolin, who is a Professor of Law at the University of Baltimore, where he teaches Torts, Contracts, Property, Intellectual Property, Federal Courts, and Constitutional Law. As always, the Federalist Society takes no position on particular legal or public policy issues; all expressions of opinion are those of the speaker. Professor Dolin, thank you for joining us today. Let's start with some historical context. How did product liability develop as a legal concept and why is it relatively new? So product liability is a fairly new concept, although not entirely. And it's a fairly new concept because the economy we live in is fairly new. What was the economy like in the 18th century, in 17th century? Odds are you probably never left the city you were born in. Odds are you probably shopped for your bread and your horseshoes and your whatever, in the same shop that your parents shopped in. Right? And odds are that the stuff that you bought were manufactured also locally. So there was no long supply chain. And so there was no necessarily thought given to this idea of what happens when somebody in manufacturing sells it to a first middleman, second middleman, et cetera, and eventually it gets into hands of consumer. Somewhere along those lines, something went awry. Whom should consumer be able to sue? Right? It's only one thing with the modern economy that developed, we needed to come up with a theory as to how to deal with that problem. And product liability is in some sense an answer to that problem. It is, both an answer kind of to the efficiency problem, but also in terms of, kind of economic justice. Can you walk us through a classic product liability case that illustrates these principles? So one theory underlying product liability is that it's simply cheaper for Coca-Cola, like one of the kind of classic cases, I think, I forget the first part of the name, but it's V. Coca-Cola, came out from California where a person who basically grabs a Coca-Cola bottle, it explodes in their hand and severely cuts the hand. And so suit is brought against Coca-Cola and the company says it was fine when it left our factory. How do you know it didn't get damaged? Somewhere in between by the truck driver that banged it against the wall. And maybe that's why a crack formed. Maybe that's why it exploded. And the California Supreme Court says, look, we have an injured party here. We could, we, they will never know where in that stream of commerce the bottle got damaged. So what are our options? And ultimately, most of the time the question in torts is really, it's just one question, who ought to pay? For that delta between how the world looked this morning and how it looks in this afternoon after the accident. That's it. It's a question of who ought to pay. And the Supreme Court of California says, look, we can stick this waitress, who picked up this bottle and in whose hand it exploded, with the entirety of the bill. Or because like she, you know, she doesn't know whether it's a truck driver because truck driver will say the same thing. Well, how do you know it didn't left damaged from Coca-Cola plant? Or we can say, look, we can impose this damage on Coca-Cola. Which maybe in some sense a little unfair, but they're a big company. They can spread that cost to all the consumers. They can raise the price of their bottle by 0.01 cent across all their sales. Most consumers will not even notice it. And thus, given the fact that we never know which bottle will explode, it's just one of those chance things that happens. Sometimes you'll get a great bottle, sometimes you won't. Overall, across kind of in the long run, it will work out, right? So each consumer will pay just a little bit more for the, you know, for the fact that most of the time they're getting a safe bottle. That's kind of how it comes up. Claims of product liability usually come up with one form or another. What are the different types of product liability claims that we typically see in our legal system? Form A basically says this is a good product. Coca-Cola bottles are generally good, but this bottle, does it have a manufacturing defect, right? So, yeah, Toyota Camry is generally, everybody knows it's a safe car, but this had a, you know, faulty seatbelt, right? And so it's, the product is defective and all you have to show is, and again, product liability is essentially, it's a strict liability tort. Because Toyota can say, oh, but we did all of our inspection. We did, you know, we behaved like a reasonable car manufacturer would, but we make a million cars a year. Of course, by sheer chance, one of 'em will slip through, even when you're being very careful. And the court says, yeah, that's fine. But again, who's more able to spread that cost? The Toyota, or the person who gets injured? The Toyota. Right? So it's, the question is not whether they fail to do proper inspection. The only question is, is this car defective? So this specific product is defective. The second type of product liability claim is that the entire line is defective.So for example, you can say, look Toyota manufacturers, seat belts that you know, that, you know, their clicker is very hard to release on all cars. And that creates problems because, you know, if you're in an accident, and firefighters need to extract you from a car with jaws of life and they can't release that clicker, you know, you have a high chance of dying because you know they can't yank you out of the car. So it's not that this car has a defective seatbelt clicker, it's that all Toyotas or all Camry, Toyota Camrys specifically right, have a particularly problematic clicker. So it's essentially, it's a design defect. It's not this specific product, it's the entire thing. It's improperly designed. The second one, is it, it's somewhat more difficult to prove because if you are saying that there was faulty design you better be prepared to come to court and say, here's a better design. Not only is it better for the problem that I'm facing, but it's, it's overall better. So in other words, it will not create other problems. Can you give us an example of a case where a plaintiff alleged a design defect but faced challenges in proving it was truly defective rather than just a design choice? In fact, there was this case actually to do with seat belts. I think it was Honda being sued. And this was at the time when you had automatic seat belts. I dunno if you remember those, but when you opened the door on the kind of seat belt would close on its own. We no longer do them. And so Honda was being sued because they had that seatbelt and their clicker was at the hip. And whereas other cars had a clicker, so you could, if you needed to release it, it was at the shoulder and, you know, a person got into an accident, he did need to be extracted. And because the clicker was at the hip, it was very difficult for the firefighters to reach over and get him out and yank him out on time. And if memory serves, I think he suffered severe burns because they couldn't yank him out of the car in time. And so the claim was that Honda should have designed the seatbelt differently. They should have done what Toyota was doing and put the, the clicker, not at the hip, but should have put them at the shoulder. And he said if they had it there, then the firefighters would've had a much easier job releasing me out, yanking me out, and I would not have been burned. The problem was that you can do that and clearly it's doable because Toyota, Honda's main competitor, was doing that. The problem was to have a clicker at the shoulder, created other risks. I don't quite recall what they were, but you know, so you're kind of, it's six one way half dozen the other. You're trading one solution, one problem for another problem. And the court said, that's not a design defect, that's a choice. And neither one is perfect, but that's not a defect. It's not as if you're, by putting a clicker elsewhere, you're solving your problem and not creating new ones. So if you're gonna argue design defect, which again, also a strict liability thing, you don't need to say that a reasonable company would've done something different. You simply have to say that this is better, right? But you actually have to identify what's better and why is it better as opposed to it's just you're trading one problem for another. One case that got significant media attention was the McDonald's hot coffee case. Can you explain what actually happened there and how it's been misunderstood by the public? So in a McDonald's case, it was, you know, heavily reported, but also heavily misreported in the media, the McDonald's case. Ms. Liebeck, I, I believe that's how you pronounce her last name, she came to McDonald's drive through window and she ordered a cup of coffee and, she received one and she put it between her thighs, I guess, as she was sort of driving away from the drive-through window. Not the smartest decision, but apparently, two things happened, I think. Number one, the coffee lid was not, I guess, closed all the way, or not tightly enough closed. And number two, the coffee was hotter than McDonald's was serving coffee hotter than in most other similar restaurants. And by the way, McDonald's was warned beforehand before all of this happened, that its coffee is too hot to handle, right? That they may want to consider lowering the temperature. McDonald chose not to, and maybe they had good reasons not to do that because coffee might taste better when it's hotter. In fact, one kind of a follow up case came up similar to that in the UK, although that I believe there was about tea, appropriately because it was in, in England, the judges said like, well, no, you have to have tea at certain temperature. And so anything below that, it's simply not tea. And so no recovery at all. But in any event, as she was driving, keeping that sort of coffee cup between her legs, she, and, you know, she's, she's an elderly woman, so the top came off and some coffee spilled on her sweatpants. It was so hot that it basically essentially melted sweatpants to her and caused her third degree burns. And initially she just wrote a letter to McDonald's seeking compensation for her hospital bills and it was declined. She, then she hired an attorney. They sought compensation for hospital bills and a bit of money basically to compensate the attorney. McDonald's declined that. They declined a couple of other settlements offers until it all came to trial. And at trial the jury concluded that the two parties were at fault for those burns. One was McDonald's because the coffee was too hot and the lid was perhaps not fully closed, or maybe not like sufficiently tight. And number two, Ms. Liebeck herself, because who puts coffee between their legs while driving? And so whatever injury was there, whatever the amount of injury was actually reduced by the amount of fault that Ms. Liebeck herself contributed to the injury. But that little point number one, that you know that she was willing to settle for way less. And number two, that the jury did consider her own contribution and did reduce her recovery was almost never reported in the media. And so instead of only kind of the top line of the fact that McDonald's was hit with these huge punitive damages was, was reported, and so it had particular resonance in the general public. There's no limit to human ingenuity or human imagination as to who you can sue and for what. So household appliances, cars, you know, drinks, whatever it is, if you were injured by a product, you probably can find on Westlaw, you can find a case, showing litigation over that product. Not necessarily a successful case, but nevertheless. One way companies avoid liability is by putting warning labels, which is why sometimes you see fairly ridiculous warning labels on things. And sometimes they, you know, the reason they put warning labels, not just in words, but also in pictures. They put the skull and bones or they, you know, they put, something else kind of, you know, some sort of picture with a red line through it, et cetera. But it's hard to say what product is most likely to be involved in a product liability lawsuit? There are some products perhaps that are less likely to be involved, and those probably will be medical products in part because those are tightly regulated by FDA. And you may not necessarily be able to put everything, you know, additional warnings on the label that are not FDA approved. And so, there's actually a Supreme Court case called Reigel versus Medtronic, where Supreme Court said that FDA regulation preempts a whole bunch of state tort law because you can only go on the market based on what FDA lets you put on the market. And you can only say things about the product that FDA approves. And so you cannot, you know, states cannot impose extra requirements. But I would be hard pressed to think that a particular industry is more likely to be sued than another industry. As with every system, there are kind of, on the margins, there are winners and losers in the system. And obviously the more, regulation you have upfront or the higher potential liability on the backend, you have, the cost of the product is gonna be, remember the entire product liability system is premised on, or at least in part, premised on the notion that Coca-Cola will have easier time to spread the costs around well, but it's still recognized that the cost exists. And so, one of the effects of product liability system and, you know, there are studies to show like whether it's a great effect or a small effect, but nevertheless, small or large it is a real effect, it does increase prices. Because companies will seek, essentially to be, they wanna be prepaid for any claims that they'll have to pay out later on, essentially. Again, is it worth it? Unclear, right? Is it is, does the current system create too much disincentive to innovate, to come up with new products that may be, you know, not yet fully tested? Perhaps. But you know, it also, it's, it's not all negative, so it might have benefits that, you know, we get safer products. So it's, it's always a trade off between safety versus speed, safety versus convenience. And as with many other things, as we've learned over the last years with Covid, it's always a trade between maximal safety and maximal convenience. And probably the answer falls somewhere in between. And depending on who you are and what your values are, you might move that needle a bit to the right or a bit to the left. Every so often you will see this new story, 375 million dollars awarded for something or other, right? Or something like that. And usually when those stories appear, there's immediately a follow on, like, well, we need to do something about this crazy system. Much more rarely we'll see a follow-on story that's saying the jury awarded, you know, 375 million dollars, but at post-trial motions, the judge reduced the tenfold to 37 million dollars. Right, which is still, of course a lot of money, but again, depends on the injury sustained. So certainly there are outsized awards, right? And there are sometimes juries to go off the rails, but we do also have safeguards. We do have a motion for a new trial. We do have a motion to, for remittitur, we do have constitutional constraints on how large a, for example, punitive damage award can be. So yes, sometimes the juries vote not with their minds, but with their hearts. And that's understandable, but that's true about every system. Sometimes the juries convict innocent people, right? Because they're just blinded by, you know, they're disgusted at the crime and the person kind of looks guilty, and that's terrible. Right? And hopefully we can correct those mistakes sooner rather than later, but unless we staff juries with angels, right, they will make mistakes. And by the way, so will judges, the question is, do we need hard rules setting caps? I don't know. But just because we have set a cap doesn't actually mean that everybody will get compensated exactly what they deserve. Because again, some people may get undercompensated if their injuries are actually above the cap. And some may get overcompensated because the jury might value their earning capacity or their pain and suffering more than it actually ought to. So, um, outsized jury awards are a problem, but then I think much less of a problem than media presented them to be because if you go out on the street and ask people, what do you think Supreme Court does? And they'll tell you, well, they do abortion and death penalty and you know, gun rights. And that's true. They do, but they also do, quote unquote, boring tax law, and employment law, retirement, plans. And they do various administrative laws and they do patent law. Things that, you know, as a proverbial person on the street neither knows nor cares about. But what does media report on? They report on the three cases out of the 80 that the court hears that are, you know, the bombshell, the big cases. And same thing happens in tort law because it's sensational. And so they exist. They are a problem. I don't think they're as much of a problem as people unfamiliar with the system think they are, these outsized awards. I guess I'll just close by saying kind of, was also what I tell my law students is, I'll quote, I think it was Justice Scalia, that nirvana is not for this world. There is no perfect system. And you know, the Torts system is designed to try to approximate. We can't actually restore the world to what it was like yesterday. Yesterday was yesterday, it will never be. But we try to approximate the best we can with the limited resources and limited sort of knowledge we have, the world that as it existed before the accident. We will not always get it right. We will, even when we get it right, we'll still get it only approximately right. But that's kind of the nature of the law and for all the faults, I think the system that has served for us for over 500 years has something to commend itself. Thank you for listening to this episode of the No. 86 Lecture series on Tort Law. The spirit of debate of our Founding Fathers animates all of the No. 86 content, encouraging discussion and critical reflection relative to how each subject is widely understood and taught in law schools and among law students. Subscribe to the No. 86 Lecture series on your favorite podcast platform to have each episode delivered the moment it's released. You can also go to no86.fedsoc.org for lectures and videos on Federalism, Contracts, Jurisprudence and more. Thanks for listening. See you in class!