The European Commission adopted two proposals that adapt liability rules to the digital age, circular economy and the impact of global value chains. These proposals are related to the Revised Product Liability Directive, fit for the green and digital transition and global value chains, and the AI Liability Directive to provide easier access to redress.
There are few legal phrases more fun to say than “ipse dixit.” The phrase is most commonly used in motions to exclude experts who base their opinions on nothing more than their own say so. As the Court noted in General Electric Co. v. Joiner, 522 U.S. 136 (1997), an ipse dixit – Latin for “he said it himself” – leaves an impermissible “analytical gap” between the expert’s opinion and the facts on which it is based. But ipse dixit arguments can and should stretch beyond just the “basis” part of the expert argument. Courts should also exclude experts who provide unsupported and self-serving testimony to suggest that their method is accepted generally in the community.
That is precisely what happened in Knepfle v. J-Tech Corporation, 2022 WL 4232598, — F.4th — (11th Cir. 2022). Plaintiff was injured in a motor vehicle accident when she ran her motorcycle into the side of a vehicle that had turned in front of her, causing her to be thrown from the motorcycle. Although the helmet she was wearing protected her head during the initial impact with the other vehicle, she alleged that it came off and failed to protect her head when it struck the pavement. She brought product liability claims against multiple defendants in the manufacturing and distributing chain of the helmet.
Proponents of digital innovations such as blockchain, the Internet of Things (IoT) and smart devices have hailed the introduction of such technology as the Fourth Industrial Revolution. When used together, they may create self-executing “smart contracts” for a variety of transactions. Smart contracts do not need to rely on IoT devices, but when they do, these devices are critical to the system, most importantly because they collect and transfer the transaction-related data that triggers the execution of the contracts. But how is that data verified, and what happens if the IoT devices are wrong?
A recent Second Circuit preemption decision illustrates the importance of a clear-eyed approach to medical device preemption issues.
In Glover v. Bausch & Lomb, Inc., 6 F.4th 229 (2d Cir. 2021), the district court dismissed as preempted a complaint concerning vision loss from defective intraocular lenses implanted during cataract surgery. Plaintiff developed “Z syndrome,” permanently impairing her vision, and sued the manufacturer under the Connecticut Product Liability Act (CPLA) for failing to warn. She alleged the defendant had failed to report prior Z Syndrome cases to the FDA, as required by the Federal Food, Drug, and Cosmetic Act (FDCA).
It is virtually a law of legal physics in California that liability tends to expand until a critical mass of appellate courts rule that it has reached its limit, or the Supreme Court puts up a stop sign (a vanishingly rare occurrence).
This judicial tendency reaches its zenith in asbestos litigation. Asbestos cases feature a combination of factors that pressure-test the boundaries of traditional tort law. Asbestos fibers, in most cases, are relatively fungible, and the exposures are anecdotal and undifferentiated. The injuries have extremely long latency periods, leaving exposure details fuzzy, ancient lore. The biological mechanisms are largely mysterious. In many cases, the plaintiff can prove an asbestos injury but cannot reliably prove causation under traditional tort standards.