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John C. Goldberg & Benjamin C. Zipursky, Civil Conspiracy, Negligence, and Recklessness In Claims Against Manufacturers of Dangerous Products, 74 DePaul Law Review 193 (2025).


Abstract: In an effort to expand the net of liability, mass tort claimants regularly assert concert-of-action and conspiracy claims against businesses that comprise the bulk of a given industry. Most commonly, these suits allege that, because the defendants conspired with one another not to warn of certain hazards associated with a product that each of them sells, they are jointly liable to any plaintiff injured by one such product. To date, these efforts have met with mixed results. In this Article, we consider whether civil conspiracy theories of this sort should succeed in the products liability context, even when the plaintiffs' claims sound in negligence or strict products liability. After considering common objections to the imposition of such liability, we identify two types of agreement-scenarios in which liability should attach: (a) genuine analogues to the classic concert-of-action scenario involving drag-racing; and (b) instances in which plaintiffs' allegations, although framed as negligence or products liability claims, are dependent on assertions that the defendants coordinated to make statements about their products that intentionally misrepresented the products' safety, or misrepresented them with a kind of recklessness that the law regards as equivalent to intentionality.