1. On what product liability theory or theories would the plaintiffs in the Vioxx cases have been relying? Under tort law: negligence, recklessness and strict liability and also under contract law: express or implied warranties.
2. What legal elements must the plaintiffs prove in order to win the Vioxx cases?
Negligence elements, physical injury, and the breach of duty
3. Are punitive damages routinely awarded, in addition to compensatory damages, in product liability cases? What would the plaintiff in the Ernst case have had to prove in order for punitive damages to have been assessed against Merck?
Punitive damages are not always awarded on top of compensatory damages in product liability cases. In some states, in order for punitive damages to be awarded in a product liability case, the plaintiff would have had to prove that the business displayed some conscious disregard for the safety of the product’s users and by-standers. In those states, a showing of negligence or even strict liability would be sufficient to support punitive damages.
If a manufacturer’s product works well for most users but the manufacturer is aware that some users may experience harm as a result of using it, what would utilitarian’s and rights theorists say concerning whether the manufacturer has an ethical obligation to warn about the risk of harm or to suspend sales of the product? (You may wish to consult the discussion of ethical theories in Chapter 4 as you answer this question