She-Hulk, The Bad Batch, and Products Liability
Let’s talk about products liability.
Too many students answer products liability questions incorrectly because either they assume all products liability claims are based on strict liability or they assume all defects are examined similarly.
Don't make that mistake.
And a couple of Disney+ series can help you learn products liability.
The first mistake some students make is concluding that all products liability claims are based on strict liability.
Remember that products liability claims can be based on four separate and independent theories. And in the absence of the test question indicating that the products liability claim is a “strict products liability claim” or a “products liability claim based on strict liability,” students will be well-served by examining the potential applicability of each of the different theories.
A products liability claim can be based on one of the following four theories:
Strict liability
Negligence
Intent
Breach of warranties (like the implied warranties of merchantability and fitness for a particular purpose and representation theories like express warranties and misrepresentation).
For bar exam purposes, a products liability claim based on intent is rare. Under this theory, the defendant will be liable to anyone injured by an unsafe product if the defendant intended the consequences or knew that they were substantially certain to occur. If intent is present, the most likely action is a battery rather than a products liability claim.
So, when examining products liability claims on the bar exam, focus on negligence and breach of warranties in addition to strict liability.
And that’s what She-Hulk: Attorney at Law (S1:E8: “Ribbit and Rip It”) taught its viewers.
I won’t give away any spoilers, but here’s an exchange between Jennifer Walters (the attorney specializing in superhuman-oriented legal cases as the green 6-foot-7-inch She-Hulk) and her client:
Client: "I have third degree burns all over my legs. I mean, I deserve justice. And compensation for all my pain, mental anguish and … stuff."
Jennifer Walters/She-Hulk: "Well, this does seem to be a pretty clear case of manufacturer’s defect—uh, negligence, strict liability, and breach of warranty." [emphasis added]
Client: "Yes?"
Jennifer Walters/She-Hulk: "I do believe you are owed compensatory damages."
Client: "Yeah! Whoo!"
I don’t know who the legal consultants or advisors are for She-Hulk: Attorney at Law, but they nailed it with this dialogue by identifying three important theories of products liability claims!
The second mistake some students make is failing to identify the particular type “defective” product.
To find liability under any products liability theory—strict liability, negligence, intent, or breach of warranties—the plaintiff must show that the product was “defective” when the product left defendant’s control. Products liability claims can be based on a manufacturing defect, a design defect, or a defect based on inadequate warnings or instructions.
A manufacturing defect emerges from a manufacturing process not only different from the other products, but also more dangerous than if it had been made the way it should have been. In this situation, the product may be so “unreasonably dangerous” and, therefore, defective, because of the manufacturing process.
A design defect emerges when all the products of a line are made identically according to manufacturing specifications but have dangerous propensities because of their mechanical features or packaging. In this situation, the entire line may be found to be defective because of poor design.
Inadequate warnings and instructions are information defects. A product must have clear and complete warnings of any dangers that may not be apparent to users.
To tie this back to Disney+, today is the start of Season 2 of the Star Wars animated series The Bad Batch.
If you’re not familiar with The Bad Batch, the show details the adventures of Clone Force 99 (aka “the Bad Batch”), an experimental group of elite cloned soldiers. Each member of Clone Force 99 was genetically manipulated and enhanced to nurture a particular set of skills. An inhibitor chip was implanted in every clone, which made the clones follow orders without question once activated. Due to Clone Force 99’s mutations and modifications, however, they weren’t controlled by their inhibitor chips as strongly as the other clones. That’s why Clone Force 99 didn’t follow Order 66, the order executing all Jedi as traitors to the Galactic Republic. And that’s why members of Clone Force 99 eventually dubbed themselves “the Bad Batch.”
Therefore, think of the Bad Batch soldiers as a design defect. The Galactic Republic designed Clone Force 99 the way it wanted them to be designed. Typically, all clones resembled Jango Fett and possessed the same set of skills. When it came to Clone Force 99, they were purposefully altered to be different from the rest. However, the Galactic Republic didn’t anticipate that they wouldn’t be controlled by their implanted inhibitor chips. And that’s a design defect!
