Product Defects, Economic Loss Doctrine, and National Class Actions – The Toyota Example

AmLaw’s Alison Frankel has provided this great primer on product defect claims, the economic loss doctrine, and national class actions. The primer arises from the litigation against Toyota for "sudden acceleration claims." The primer is embodied in her post providing links to the key briefs on the issues. Great reading for anyone looking for a broad education on significant important issues.

A comment. The economic loss doctrine once made sense when most harms arose from smash, bang accidents with visible physical injuries. Today, however, the rule makes far less sense because sentient human beings today know that injuries arise in many ways, including cellular level (subclinical personal injuries), and that risks of injury can and do create financial losses and costs. The common law needs to evolve to recognize modern science, modern risks, and modern financial losses. Or, courts need to make it very plain that they will not provide any remedies, thus leaving the choices narrowed down to something on the order of: 1) increasing regulation, 2) companies doing a far better job in designing and testing to avoid failure risks, or 3) consumers taking the hit for design and testing failures.

A caveat and/or disclaimer. I own one of the defective Lexus cars. It never crashed, but I’m confident I experienced numerous short, occasional accelerations caused by the car acting on its own. I took the car in for the recall work. The sudden accelerations have not reappeared since the recall work.

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About Kirk

Since becoming a lawyer in 1983, Kirk’s over 30 years of practice have focused on advising a wide range of corporations, associations, and individuals (as both plaintiffs and defendants) on both tort and commercial law issues centered around “mass torts.”

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