What To Do When 'Strict' Means 'Strict'

It is well known that the doctrine of strict liability imposes responsibility upon manufacturers without regard to their fault or the degree of care they may have exercised in designing their products. Yet, in some jurisdictions the law of strict liability is stricter than in others, and courts in these "strict-strict liability" jurisdictions may prohibit the employment of certain common defenses to product liability claims. Manufacturers that find themselves on the defense in such jurisdictions may face the unexpected and initially unpleasant news that the trial on the horizon really will be about the product, the whole product and nothing but the product, and that the sole question for the jury may be "can someone given 20/20 hindsight fathom a plausible way to make this product safer?" Such manufacturers will often find that what they were hoping to rely upon for the cornerstone of their defense — explaining who, what, where, when, why and how from the company's perspective — is not only irrelevant but also inadmissible at trial.

33 minute read December 01, 2003 at 08:27 AM

By

Samuel W. Silver and Jennifer A. Diamantis