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      Products in a Pandemic: Liability for Medical Products and the Fight against COVID-19

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          Abstract

          A multitude of medical products are being developed and produced as part of efforts to tackle COVID-19. They are varied in nature and range from test kits to tracing apps, protective equipment, ventilators, medicines and, of course, vaccines. The design, testing and manufacture of many of these products differs from production in normal times due to the urgency of the situation and the rapid increase in demand created by the pandemic. This article considers the legal issues arising as a result of the production of emergency products, particularly from a products liability perspective. To what extent do existing concepts under the European Product Liability Directive, such as defect, causation and the various defences, permit the pandemic to be taken into account when a Court is considering issues of liability? What is the impact on liability of the modified regulatory regime? In light of that discussion, the case for alternative responses is examined from a comparative and European perspective, including the issue of Government indemnities for the manufacturers of products, legal exemptions from liability and alternative no-fault compensation schemes.

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          Author and article information

          Journal
          Eur J Risk Regul
          Eur J Risk Regul
          ERR
          European Journal of Risk Regulation
          Cambridge University Press (Cambridge, UK )
          1867-299X
          2190-8249
          20 May 2020
          : 1-39
          Affiliations
          [* ]Senior Fellow in Comparative Law, British Institute of International and Comparative Law , London, UK, and Professor of Comparative Law, Université Paris Dauphine PSL , Paris, France; email: d.fairgrieve@ 123456BIICL.org .
          [** ]Barrister, 4 New Square Chambers, London, UK; email: P.Feldschreiber@ 1234564newsquare.com .
          [*** ]Professor of Commercial Law, University of Manchester , Manchester, UK; email: Geraint.Howells@ 123456manchester.ac.uk .
          [**** ]Barrister, 11KBW Chambers, London, UK; email: Marcus.Pilgerstorfer@ 12345611kbw.com .
          Article
          S1867299X20000549
          10.1017/err.2020.54
          7302949
          5623f500-f844-4b8f-940f-6a5fddfb0ce6
          © European Journal of Risk Regulation 2020

          This is an Open Access article, distributed under the terms of the Creative Commons Attribution licence ( http://creativecommons.org/licenses/by/4.0/), which permits unrestricted re-use, distribution, and reproduction in any medium, provided the original work is properly cited.

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          Pages: 39
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