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1 / 1993 |
EU og international forsikring, Forsikringsret |
William C. Hoffman
Insurers of liability risks will be interested to learn more
about a recent trend in American law that permits a
defense to strict liability for certain types of pharmaceuticals
and medical products. It is of course well known
that exports of products to the USA present a substantial
product liability risk for manufacturers, exporters, distributors,
and other sellers under the Restatement (Second)
of Torts § 402A. In the case of prescription medical
products, one may add the prescribing physician as a
potential defendant, as well.
A recent trend in the court decisions of quite a number
of American states indicates an increased willingness of
the courts to rethink the strictness of product liability for certain types of products.
These products, called ”unavoidably unsafe” products, are held not to be subject
to strict liability for design defect and failure to warn. The manufacturers of such
products are therefore exempt from a major source of product liability claims.
The reason for the exemption is that, though these products are dangerous, they
are nonetheless of such benefit to society that strict liability is inappropriate. So
far, the list of ”unavoidably unsafe” products includes certain drugs and medical
The list of ”unavoidably unsafe” is growing, and it may be expected that it will
continue to grow in the coming years. But how far will the list go? The following
article explores this important trend by examining some of the cases in which
the ”unavoidably unsafe” product defense has been applied.