Alabama Legislature Enacts Causation in Fact Requirement

There is likely no more fundamental notion in product liability law than the recognition that the defendant's product must cause the injury complained of, and thus a product maker or seller ought not be held liable for injuries caused by a product it actually didn't make or sell.  This is basic causation-in-fact, and the few courts that have tried to ignore this fundamental principle have needed to perform legal contortions and Olympic-level gymnastics to invent unworkable alternate rules.  "Market share liability" is an older, nearly extinct example, and a more modern excursion is the notion that the maker of a branded pharmaceutical product can somehow be held liable for injuries caused by the plaintiff's use of a generic version of the product, which defendant didn't make or sell.

Recently, the Alabama Legislature passed a bill to reverse their state supreme court's decision in Wyeth Inc. v. Weeks, which had allowed a patient allegedly injured by the generic drug to sue the maker of the name-brand product.  Gov. Bentley recently signed the bill, which had overwhelming bipartisan support in the Alabama House and was passed unanimously in the state Senate.

The vast majority of state and federal courts hold that a plaintiff must have used the defendant's actual product, and the law returns Alabama to this column.  SB80 requires that in any civil action for personal injury, death, or property damage caused by a product, regardless of the type of claims alleged or the theory of liability asserted, the plaintiff must prove, among the other traditional elements, that the defendant designed, manufactured, sold, or leased the particular product the use of which is alleged to have caused the injury on which the claim is based, and not just a similar or allegedly equivalent product.  Thus designers, manufacturers, sellers, or lessors of products not identified as having been used, ingested, or encountered by an allegedly injured party may not be held liable for any alleged injury.

The measure will take effect six months after becoming law. It appears to do away with not only so-called innovator liability, but also market share liability, alternative liability, conspiracy liability, and the other outlier industry-wide theories of liability in product cases. 

 

Maryland Retains Contributory Negligence

In an interesting decision, the Maryland Court of Appeals decided to retain the traditional doctrine of contributory rather than comparative fault.  See Coleman v. Soccer Association of Columbia, No. 9-2012 (Md. July 9, 2013). 

Several decades ago, the court in Harrison v. Montgomery County Bd. of Educ., 295 Md. 442, 444, 456 A.2d 894 (1983), addressed whether the common law doctrine of contributory negligence should be judicially abrogated in Maryland and the doctrine of comparative negligence adopted in its place.  The court declined to abandon the doctrine of contributory negligence in favor of comparative negligence, pointing out that such change “involves fundamental and basic public policy considerations properly to be addressed by the legislature.”

In Coleman, the petitioner presented the same issue that was presented in Harrison, namely whether the court should change the common law and abrogate the defense of contributory negligence in certain types of tort actions. After reviewing the issue again, the court arrived at the same conclusion: that, although the court had the authority to change the common law rule of contributory negligence, it would decline to abrogate Maryland’s long-established common law principle of contributory negligence.

The opinion provides an interesting dialog as to which branch of government should decide such a substantial change to the tort law.  The majority and concurring opinions say that the issue of adoption of comparative fault is really one for the legislature to decide. Note my colleagues filed an amicus brief in the case on behalf of the American Tort Reform Association, Chamber of Commerce of the United States of America, and others, arguing for continued application of the contributory negligence doctrine.