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  • Writer's pictureKirk Hartley

Courts Are Indeed Making Changes to the Law for Information-Related Tort Claims and New Article on A

For some time now, I’ve been writing about potential changes in product liability law due to rapid changes in communication and science. In a February, 2007 article for Corporate Counsel, I addressed various changes, including the widespread availability of scientific information and its impact on information-related tort claims. The article included my prediction that “sophisticated intermediary” types of defenses would change in light of all the available information. I’ll pat myself on the back and note that I was right – in a drug case in 2007, the West Virginia Supreme Court cast aside the “learned intermediary defense due to the wide availability of information to consumers. See Johnson and Johnson v. Karl, 220 W.Va. 463, 647 S.E.2d 899 (2007). The Court there said many things, including the following:

“When the learned intermediary doctrine was developed, direct-to-consumer advertising of prescription drugs was utterly unknown . . . Since the 1997 proliferation of drug advertising, only four high courts have adopted the learned intermediary doctrine . . . None of those courts gave thorough consideration to the changes that have occurred in the prescription drug industry with respect to direct-to-consumer advertising. We however, find such changes to be a significant factor in deciding this issue . . “

So, with that as background, I particularly enjoyed reading an excellent new article by Sarah (Sally) Olson of Wildman regarding the Johnson case and other additional specific examples of the Internet’s effect on tort claiming. The article is titled: Net’s Impact on Strict Product Laibility Law. The effects she describes include increased numbers of public consumer complaints of defects, consumer input into design, whether a company needs to monitor blogs, whether a company run blog or website will produce its own liability if a company is not accurate in what it says publicly, and various other points. Ms. Olson’s article is well worth reading in full and considering how it might apply in your context.

After that, think also about reading a 2008 book titled: Stop The Presses: The Crisis and Litigation PR Desk Reference. Written by Richard Levick and Larry Smith of Levick Strategic Communications, the book’s chapters 7 and * deal with blog strategies and lots of other “crisis” issues that did not exist 5 years ago in any material way. Then I’d suggest reading their chapter 9 on the impacts of media as related to increased prosecutorial activity. That’s a topic I’ve also covered in a more limited context in a 2006 Corporate Counsel article focused on “toxic torts” and criminal prosecutions.

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