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Product Liability Law & StrategyLJN NewslettersNewsSections

Avoiding Dysfunctional Litigation

By Michelle M. Bufano
March 30, 2009

Causes of action alleging violations of state consumer fraud statutes are among the newest weapons in the arsenal of product liability plaintiffs. Instead of solely pleading traditional common law or statutory product liability claims, plaintiffs ' particularly those in drug or medical device cases ' often also allege consumer fraud or unfair trade practices. For plaintiffs, the strategic advantages are the ability to: 1) circumvent the causation requirements of traditional strict liability cases; 2) obtain punitive damages; and 3) recover attorneys' fees and costs from defendants. This litigation tactic, however, is manifestly unfair to product manufacturers and frustrates the policy rationale underlying traditional product liability causes of action.

This article examines: 1) the historical underpinnings of product liability causes of action; 2) the purpose of state consumer fraud statutes and their growing popularity in product liability actions; and 3) one court's analysis regarding the inability of these two claims to be reconciled in a product liability action. The article concludes that permitting consumer fraud claims to continue to be asserted in product defect cases is misguided and thwarts the public interest.

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