Was It a Success? 10 Years Later, the Admirers and Critics of the Products Liability Restatement Weigh In...
by Hayley Moore
Brooklyn Law Review symposium editor
(Symposium photos by Damion Edwards and Joe Vericker)
On November 13 and 14, Brooklyn Law School—along with Shook, Hardy & Bacon LLP; Gair, Gair, Conason, Steigman & Mackauf; Herzfeld & Rubin, PC; and the Brooklyn Law Review—sponsored a Symposium to commemorate the 10th Anniversary of the Restatement Third of Torts: Products Liability. Professors Anita Bernstein and Aaron Twerski of Brooklyn Law School organized the two-day event to answer a not-so-simple question: Was the Restatement a Success?
An ensemble of panelists, impressive both for their contributions to the field and for the diversity of their opinions, participated in the symposium in six separate panels. Each panel addressed a current hot-button topic in products liability, and each panelist discussed the progress and pitfalls of the Third Restatement. The individual presentations were dynamic, and the interactive Q&A even livelier than anticipated. The open forum permitted audience members to directly critique the panelists’ propositions, often engaging the packed floor in a full-fledged debate. Those in attendance had the rare opportunity to hear some of the nation’s most preeminent products-liability scholars share their views on the “success” of the Third Restatement and receive feedback from the Reporters themselves, Aaron D. Twerski and James A. Henderson, Jr.
 Design Defects
Professor Edward K. Cheng of Brooklyn Law School led the first panel, whose members included Professor David G. Owen of the University of South Carolina School of Law, Hildy Bowbeer, the Assistant Chief Intellectual Property Counsel at 3M Company, Robert L. Conason of Gair, Gair, Conason, Steigman & Mackauf, and Larry S. Stewart of Stewart Tilghman Fox & Bianchi, PA. From the start, the audience was animated on the topic of general product design. Defects in design, as compared with manufacturing defects, stimulated much debate among the participants and the audience. Reporters Aaron Twerski and James Henderson responded to the panel and the audience comments.
Liability for Defective Drugs
In the afternoon, Professor Richard L. Cupp, Jr., of Pepperdine University led a discussion about the Restatement and liability for defective drugs. Panelists included Professor Michael D. Green of Wake Forest University School of Law, Professor Margaret A. Berger of Brooklyn Law School, Professor Lars Noah of the University of Florida Fredric G. Levin College of Law, and Paul D. Rheingold ofRheingold, Valet, Rheingold, Shkolnik, & McCartney LLP. Discussion of defective drugs and evidentiary standards for the reviewing science provoked heated debate, especially concerning the capacity of judges to properly assess the science.
 Defenses to Liability
Discussion leader Nicholas J. Wittner, Assistant General Counsel of Nissan North America, facilitated a discussion on defenses to liability. Participating in the panel were Professor Ellen M. Bublick of the University of Arizona James E. Rogers College of Law, Michael Hoenig of Herzfeld & Rubin, PC, Professor Richard C. Ausness of the University of Kentucky College of Law, and Mark A. Geistfeld of New York University School of Law. Discussion leader Wittner set up the panelists in an integrative dialogue with one another over various topics, with drunk drivers and crashworthiness eliciting the most discussion.
 Federal Preemption of
Products-Liability Litigation
Federal preemption, a topic not given black-letter treatment in the Restatement, was also the subject of lively interaction. The Reporters acknowledged that preemption has prompted strong interest in products liability and required discussion in this forum.  Professor Anthony J. Sebok of the Benjamin N. Cardozo School of Law led the discussion among Professor Mary J. Davis of the University of Kentucky College of Law, Professor Robert L. Rabin of Stanford Law School, Malcolm E. Wheeler of Wheeler Trigg Kennedy LLP and Sheila L. Birnbaum of Skadden, Arps, Slate, Meagher & Flom LLP. The panelists spoke in the order of their views on a continuum, with Davis the most skeptical of preemption and Birnbaum the most committed to it.
 Liability for Failure to Warn
Professor Mary J. Davis of the University of Kentucky College of Law facilitated a discussion on the failure to warn and the extent to which lawyers and judges are willing and ought to push the doctrine. Participating in the panel was Hildy Bowbeer, Assistant Chief Intellectual Property Counsel of 3M Company, Kenneth Ross of Bowman and Brooke LLP, Elena A. Cappella, the Deputy Director of the American Law Institute, and Professor Aaron D. Twerski of Brooklyn Law School.
 The Next Decade in Products Liability
The two-day event ended with a look to the future. Professor Stephen G. Gilles of Quinnipiac University School of Law laid the groundwork for the issues that will unfold in the years ahead. The panelists, Professor Jane Stapleton of the University of Texas School of Law, Professor Richard L. Cupp, Jr., of Pepperdine University School of Law and Professor Anita Bernstein of Brooklyn Law School, shared their views on the direction of products-liability law over the next decade. The symposium concluded with remarks by Barbara Rothstein, the Director of the Federal Judicial Center and U.S. District Judge for the Western District of Washington.
Several papers written by the panelists will appear in a special symposium-related issue of the Brooklyn Law Review. Please look out for this special compilation issue in Volume 74, Issue 3, to be published in Spring 2009.
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