Manhattan Paper: Knowledge of the Law Is No Excuse

In his whimsical poem, "The Objection to Being Stepped On," Robert Frost recounts how he acciden¬tally "stepped on the toe of an unemployed hoe." The implement instantly "rose in offense" and struck Frost a blow "in the seat of [his] sense." Yes, the Bible had foretold the day when weapons would be turned into tools. "But what do we see? The first tool I step on, Turns into a weap-on."

There is a great insight here. The line between tools and weapons is exceedingly fine. Knives cut, irons scorch, dynamite explodes, poison kills. In the wrong hands, or under the wrong foot, the tamest and most domestic object quickly becomes an instrument of assault and battery.

Until the 1950s, the law on these matters was fairly simple. Wherever possible, the old tort law left it up to the individual to distinguish between weapons and tools in his own private universe. If someone wanted to buy a fast horse, lightweight canoe, sharp knife, or strong medicine, that was his business and his risk, or more precisely, it was a risk that he and his seller could allocate between themselves as they chose.

The new tort jurisprudence that developed in the 1960s was quite different. Tort law advanced; contract principles receded. A new tort system gradually stepped in to preempt and rewrite a million allocations of risk and responsibility that had once been decided by contract. The new tort system was much busier than the old. And having made product "defects" the center of its attention, it had a very much more technocratic function.

Just how does one go about locating a "defect" in a complex product? "Manufacturing defects" are often easy enough to find. The jury compares the product as it reached the plaintiff with hundreds of others, intended to be identical, that came off the same assem bly line. In effect, the mass manufacturer establishes his own standard, by which any one of his own products can be gauged. Manufacturing defect cases are easy. They are also comparatively rare.

Far more common today, and also far more difficult, are cases in which the product is said to be defective in design. The search for design defects often requires a jury to compare real with hypothetical products. What is a jury to do, for example, when a lawyer for a sick child claims that a whooping cough vaccine was defective in that it was based on a whole virus rather than a virus extract? The vaccine in question, that of Wyeth Laboratories, is the only whooping cough vaccine sold in this country. An alternative formulation has indeed been tested in Japan, but our own Food and Drug Administration does not approve its use here.

And how is a jury to decide whether a whole class of products—say, the intrauterine device (IUD) contraceptive—is inherently "defective"? The new tort system has apparently reached that conclusion, having driven from the market not only the notorious Dalkon Shield, but also its far safer substitutes, the Copper-7 and the Lippe's Loop IUDs. The FDA, Planned Parenthood, and the vast majority of doctors do not endorse the verdict, but the verdict stands, nonetheless.

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