ABSTRACT
The defendant manufacturer or seller of a toxic product will raise two tiers of rebuttal to a claimant's cause of action. The first tier will be defendant's refutation, where possible, of each aspect of plaintiff's prima facie case. The second tier of defendant's defenses is the so-called "affirmative" defenses. They are denominated "affirmative" because defendant must raise them affirmatively and specifically, by either pretrial motion or at trial. To show contributory negligence, defendant must demonstrate that the injured party acted without due care for his personal safety, that is, that he was negligent in protecting himself. The reach of the government contractor defense extends beyond design defect claims to include allegations of failure to warn adequately of a product's risks. To employ the defense of issue preclusion, the defendant must show that the issue in the current lawsuit, such as labeling adequacy or degree of hazard, is identical to the issue decided in an earlier trial.
