1. REFLECTION PAPER #2 AND 3 (Torts): Select and answer the TWO reflections on Product Liability presented on pp. 17-19 in the syllabus below. Be sure to refer to the Reflective Paper Rubric.
PRODUCT LIABILITY ACTIVITIES AND REFLECTIONS:
For both of these activities, you will serve as a juror in a product liability case. In the first case you will deliberate on whether tort liability should be found. In the second, you will deliberate on whether punitive damages should be awarded. [Optional: The instructor will facilitate the deliberation as a role play and will serve as the judge on the case.] Review these fact patterns and write a brief analysis of the issue. Be sure to include your “vote” as a juror. Specific instructions for the reflections follow the fact patterns provided below.
I. Liability Exercise
· Jury Deliberations
Facts Given: Lewis purchased a 1.5-gallon heavy duty gas can from Z-Mart. The can consisted of a jug for the liquid and a screw-on cap. The gas can was bright red, and there was not any writing or graphics on it. It cost $19.99. The packaging for the jug contained a single sheet of paper, written in English. It included the following: (1) a list of the type of liquids that the container could hold (i.e., gasoline), (2) contact information for the manufacturer (Acme Container Co.), and (3) a warning that read: “Keep Out of Reach of Children.” Lewis, who speaks Spanish as a primary language and English as a second language, glanced at the paper and then discarded it.
Clark, a four-year old, was visiting with Lewis’s child, also four years old. They were playing in Lewis’s basement and discovered the gas can. It was on the floor in the middle of the room. They easily unscrewed the cap and poured about one gallon of gas onto the floor. The vapors from the gas ignited, and Clark was burned severely as a result.
Clark’s father and mother filed a lawsuit against Acme Container Co. alleging that the product was defective, and against Lewis alleging that he was negligent.
As a “juror”:
· Consider Acme’s potential liability under all three product liability theories: defective manufacture, defective design, and failure to warn. Explain your thinking.
· Consider if Lewis is negligent. Explain your thinking.
Deliverable Assignment: Individually prepare a short paper — one (1) to two (2) pages – and describe why or why not each defendant is liable, or if neither defendant is liable. If you think both are liable, what percentage of liability should each defendant be responsible for?
· Helpful Hint: You may find helpful information about proper warnings in case like this on the Internet. Use APA format for citations/references. Must have at least two article referring to the same sort of instance.
· (In class or threaded discussion) Reflect upon and discuss why it is difficult to make a decision in a case like this as a juror. In doing so, consider the following questions: What was the most challenging aspect of the deliberations? Did deliberations change your mind in any way? On what issue was there the most consensus? The most disagreement? Were you satisfied with the ultimate decision of your jury? Did your jury get it right (meaning, do you think that the law of product liability properly was applied to the facts)? From a business point of view, what lessons did you learn regarding the potential legal exposure that flows from wrongdoing? Do you think the product liability tort framework is designed to bring about just results?
Heather’s Vote: Lewis is responsible for the child getting hold of the container. The label clearly read keep of out reach of children. Acme was not at fault.
*Please refer to the Reflective Paper Rubric.
II. Punitive Damages Exercise
· Jury Deliberations (punitive damages exercise)
HealthCo is a provider of non-prescription sinus and allergy medication. They provide their pills in small plastic containers. The bottle is labeled “Child Proof.”
Abe is a five-year old child. His parents purchased a bottle of HealthCo’s medication and left it on the bathroom counter. Abe finds the closed bottle of pills, opens the container, and ingests most of the pills. Abe has to be rushed to the emergency room and subsequently spends two weeks in the hospital. Abe was crying hysterically when his parents found him with the pills and his stomach had to be pumped. His parents sue HealthCo for negligence in the manufacture and sale of the bottle — that is, they allege that HealthCo owes a duty to its customers, it breached that duty, and caused Abe’s injury (Cheeseman, 2016, pp. 120-124).
The following facts were established at trial:
· The type of cap used by HealthCo is generally effective but below regulatory standards. Internal memos indicate that HealthCo is aware of this but elects to remain below those standards rather than employ a more costly/more effective alternative design. The failure rate of the cap is much higher than that of competing brands.
· The FDA had never specifically asked HealthCo to change the safety cap it used.
· HealthCo’s profits for the past year were $45 million.
· In the past year, HealthCo sold 60,000 bottles of medication which incorporated the safety cap at issue.
· Abe’s parents conscientiously purchase items based upon child-proof representations.
· Abe’s hospital stay cost $50,000;
· Abe’s doctor bills, current and estimated future, are $5,000;
· Abe will have to undergo various forms of rehab estimated to be $2,000;
· Due to the stress to his system, Abe has a greater chance of contracting respiratory problems such as asthma and emphysema;
· Abe’s respiratory system is permanently weakened; and
· Abe sustained what doctor’s termed “excruciating pain” and “labored breathing” after the ingestion of the pills and prior to the emergency treatment. The pain was greatly reduced but lingered throughout his hospital stay.
At trial, the jury determined that HealthCo was negligent based upon the facts. As a result, Abe is entitled to compensatory damages.
The next steps for the jury are to (1) calculate the compensatory damages, (2) determine if punitive damages are warranted, and, if so, (3) calculate the amount of punitive damages.
Deliverable Assignment: Individually prepare a short paper – one (1) to two (2) pages – to include the following:
1. Calculate the amount of compensatory damages you would award and state how you calculated that amount;
2. A. Determine if you believe punitive damages are warranted;
B. If you believe punitive damages are warranted, rate, on a scale of 0 to 10, how “reprehensible” you find HealthCo’s behavior;
C. Then calculate the amount of punitive damages you would award and state how you calculated that amount.
Helpful Hint: The Cheeseman text talks a bit about punitive damages in a product liability case, but does not give enough information about compensatory damages in a personal injury case. Before doing this assignment, you may want to do some brief Internet research to understand the difference between compensatory damages and punitive damages in personal injury or product liability cases. Use APA format for citations. With at least 2 citations/references) In short, compensatory damages are intended to make the injured person “whole” and usually consist of
· Current and future medical bills
· Current and future lost wages or lost earning potential
· Current and future pain and suffering
· Emotional distress, depression, loss of enjoyment of life
3. Finally, reflect upon and discuss why it is difficult to make a decision in a case like this as a juror. In doing so, consider the following questions: As a juror, what was the most challenging aspect of your decision-making? From a business point of view, what lessons did you learn from this case? Are there any aspects of the process that encourage settlement by the parties before juries resolve a case?
*Please refer to the Reflective Paper Rubric.
REFLECTIVE PAPER RUBRIC
|Assessment Criteria||Exceeds Expectations
|Does Not Meet Expectations
|Did not Do|
|Application of Reflective Process||Clear evidence that the author fully engaged in the reflective process with all 4 of the parts included.
|Some evidence that the author engaged in the reflective process. Only 2 or 3 of the parts of reflective practice are included.||Little or no evidence that the author fully engaged in the reflective process including:||Missing|
|Presentation demonstrates insight, relevance of content to professional practice and critical thought.||There is some evidence of insight into the topic but there is little relationship to professional practice||The evidence of reflective practice which is provided is limited to only descriptive approach to issued related to the experiences and/or literature.||Missing|
|Quality of Writing||Entries are consistently of outstanding quality. Flawless presentation.||Entries are consistently of good quality. Minimal spelling, grammatical, and/or punctuation errors.||Entries are consistently of poor quality. The frequency of spelling, grammatical, and/or punctuation errors is distracting to the reader.||Missing|
|Overall Effort||Written work clearly demonstrates exemplary effort. Responses consistently show initiative, creativity, and original thought.||Written work demonstrates adequate effort. Responses are consistently complete, thorough, and reflect original thought.||Written work demonstrates little effort. Responses are consistently incomplete, shallow, and/or submitted late.||Missing|
|APA Format||All parts of the reflective journal follow APA format requirements.||Most parts of the Case Analysis follow APA format requirements.||Some parts of the reflective journal follow APA format requirements.||Missing|