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Unavoidably Unsafe Products

Udgave: 1 / 1993 | Kategori: EU og international forsikring, Forsikringsret | Forfatter: 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 devices. 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.