Product Liability Litigation

Today's globalizing marketplace can bring great opportunity to product manufacturers, but unfortunately it can also add great complication. The different ' sometimes even higher ' product standards required by non-American countries can adversely affect product protection here in the United States, as plaintiff's attorneys can use these discrepancies to their advantage in litigation against product manufacturers. So while American companies may adapt their products for use in other countries to gain a larger market share, they may end up paying serious prices when the plaintiff's bar use the different international designs and standards to make a case. It is imperative, therefore, that manufacturers that sell in other countries understand those countries' standards in detail and make good safety decisions in all venues.

Overview of Product Liability Law

A manufacturer has a duty to design defect-free products. Legally, a product is deemed defective if the manufacturer could reasonably foresee that it could cause injury. When litigating product cases everywhere, the focus is to ensure that a jury understands that the manufacturer is thoughtful and takes steps to create safe products.

This is accomplished by showing reasonableness throughout the “life of a product,” which refers to the design, manufacturing, sale and post-sale phases of production. The manufacturer wants to be able to show it was concerned about safety at each of these phases.

• Design Phase ' When developing a product, a manufacturer must consider the DESIGN, GUARD, WARN hierarchy. This means that any hazard in a product must be designed out of the product if at all possible. If the hazard cannot be designed out of the product, then the product must be guarded to prevent interaction with the hazard. Finally, if the hazard cannot be guarded, then the product must warn of the danger. Safe design evidence that a jury will review includes the product manual and warnings and other manufacturer's engineering documents as well as what similar companies are doing and compliance with industry standards.
• Manufacturing Phase ' Safety during the manufacturing process can be illustrated by the manufacturer's quality control documents ' both its own as well as incoming and outgoing QC documents from suppliers and distributors who purchase the product.
• Sale and Post Sale Phase ' The manufacturer should also ensure it is selling to qualified vendors who know how to install the product safely. Most states now impose post-sale duties as well which require the manufacturer to stay on top of the state of the art for safety and perform recalls or retrofits of products that are no longer safe.

The Relevance of Industry Standards in Litigation

The most prevalent claims in product liability litigation relate to improper or negligent designs. One of the main ways a manufacturer can defend itself in such litigation is to show a jury that it complied with industry standards, so it is critical that a manufacturer know and adhere to the industry standards that apply to its products.

These standards are derived from both governmental agencies and industry organizations. In the United States, examples of governmental agencies that create standards are the Consumer Product Safety Commission (CPSC), Food and Drug Administration (FDA) and National Highway Traffic Safety Administration (NHTSA). Examples of industry organizations are American National Standards Institute (ANSI), American Gas Association (AGA) and American Society of Mechanical Engineers (ASME) as well as, of course, the IEEEE (formerly the Institute of Electrical and Electronics Engineers, Inc.).

Compliance with industry standards is strong evidence that the manufacturer is concerned about safety, but obedience alone is not enough. A manufacturer must understand that compliance of industry standards is only a minimum expectation and that it can go beyond the minimum standards to create products even safer than required. A manufacturer should be prepared for a plaintiff's counsel to argue that even if the product is in compliance with an industry standard, the manufacturer could/should have done more to create a safer product.

The Effect of Different International Standards on Products Cases

Non-U.S. countries also have industry and governmental standards that require compliance and while there has been some effort to harmonize these differing standards (for example, the ISO and IEC standards across Europe and other member countries) many countries are not as coordinated. Moreover, there are additional standards beyond ISO that can create difficulty for manufacturers. For example, while Canada and Mexico are members of ISO, they can have differing standards from the United States, and manufacturers who sell products in these countries must understand the implications of selling to those countries should litigation transpire.

United States courts have wide discretion to admit evidence of safety standards. If a product is designed, manufactured or sold in the U.S., a court in this country would typically admit American standards finding them relevant to products sold in this country.

Whether or not another country's standards would be found admissible, however, is far less predictable. The manufacturer would want to make a strategic decision on whether admission of the standards would be helpful to the defense of a product liability action. If the case is pending in the United States, and the manufacturer complies with even higher standards in another country, it should seek to have that admitted, arguing that it shows the extreme safety consciousness of the manufacturer. On the other hand, if the plaintiff were trying to show compliance of another country's standard in another country but not in the United States, the manufacturer would argue that the other country's standard is not relevant to products manufactured for sale in the United States. If the other country's standard is admitted in this situation, it would be very damaging evidence to a jury that the manufacturer does not really care about product safety but is only complying with the most minimal standards.

Manufacturers need to keep an ever watchful eye toward how another country's standards can affect any litigation, ensuring they request the court limit or include another country's standards if it will be helpful to the defense of the product.

Sheila T. Kerwin is a shareholder and trial lawyer who chairs the products liability practice group at Halleland Lewis Nilan & Johnson in Minneapolis. She is a member of the coordinating counsel team for product manufacturers nationwide. Kerwin can be contacted at 612-204-4128 or [email protected].

Today's globalizing marketplace can bring great opportunity to product manufacturers, but unfortunately it can also add great complication. The different ' sometimes even higher ' product standards required by non-American countries can adversely affect product protection here in the United States, as plaintiff's attorneys can use these discrepancies to their advantage in litigation against product manufacturers. So while American companies may adapt their products for use in other countries to gain a larger market share, they may end up paying serious prices when the plaintiff's bar use the different international designs and standards to make a case. It is imperative, therefore, that manufacturers that sell in other countries understand those countries' standards in detail and make good safety decisions in all venues.

Overview of Product Liability Law

A manufacturer has a duty to design defect-free products. Legally, a product is deemed defective if the manufacturer could reasonably foresee that it could cause injury. When litigating product cases everywhere, the focus is to ensure that a jury understands that the manufacturer is thoughtful and takes steps to create safe products.

This is accomplished by showing reasonableness throughout the “life of a product,” which refers to the design, manufacturing, sale and post-sale phases of production. The manufacturer wants to be able to show it was concerned about safety at each of these phases.

• Design Phase ' When developing a product, a manufacturer must consider the DESIGN, GUARD, WARN hierarchy. This means that any hazard in a product must be designed out of the product if at all possible. If the hazard cannot be designed out of the product, then the product must be guarded to prevent interaction with the hazard. Finally, if the hazard cannot be guarded, then the product must warn of the danger. Safe design evidence that a jury will review includes the product manual and warnings and other manufacturer's engineering documents as well as what similar companies are doing and compliance with industry standards.
• Manufacturing Phase ' Safety during the manufacturing process can be illustrated by the manufacturer's quality control documents ' both its own as well as incoming and outgoing QC documents from suppliers and distributors who purchase the product.
• Sale and Post Sale Phase ' The manufacturer should also ensure it is selling to qualified vendors who know how to install the product safely. Most states now impose post-sale duties as well which require the manufacturer to stay on top of the state of the art for safety and perform recalls or retrofits of products that are no longer safe.

The Relevance of Industry Standards in Litigation

The most prevalent claims in product liability litigation relate to improper or negligent designs. One of the main ways a manufacturer can defend itself in such litigation is to show a jury that it complied with industry standards, so it is critical that a manufacturer know and adhere to the industry standards that apply to its products.

These standards are derived from both governmental agencies and industry organizations. In the United States, examples of governmental agencies that create standards are the Consumer Product Safety Commission (CPSC), Food and Drug Administration (FDA) and National Highway Traffic Safety Administration (NHTSA). Examples of industry organizations are American National Standards Institute (ANSI), American Gas Association (AGA) and American Society of Mechanical Engineers (ASME) as well as, of course, the IEEEE (formerly the Institute of Electrical and Electronics Engineers, Inc.).

Compliance with industry standards is strong evidence that the manufacturer is concerned about safety, but obedience alone is not enough. A manufacturer must understand that compliance of industry standards is only a minimum expectation and that it can go beyond the minimum standards to create products even safer than required. A manufacturer should be prepared for a plaintiff's counsel to argue that even if the product is in compliance with an industry standard, the manufacturer could/should have done more to create a safer product.

The Effect of Different International Standards on Products Cases

Non-U.S. countries also have industry and governmental standards that require compliance and while there has been some effort to harmonize these differing standards (for example, the ISO and IEC standards across Europe and other member countries) many countries are not as coordinated. Moreover, there are additional standards beyond ISO that can create difficulty for manufacturers. For example, while Canada and Mexico are members of ISO, they can have differing standards from the United States, and manufacturers who sell products in these countries must understand the implications of selling to those countries should litigation transpire.

United States courts have wide discretion to admit evidence of safety standards. If a product is designed, manufactured or sold in the U.S., a court in this country would typically admit American standards finding them relevant to products sold in this country.

Whether or not another country's standards would be found admissible, however, is far less predictable. The manufacturer would want to make a strategic decision on whether admission of the standards would be helpful to the defense of a product liability action. If the case is pending in the United States, and the manufacturer complies with even higher standards in another country, it should seek to have that admitted, arguing that it shows the extreme safety consciousness of the manufacturer. On the other hand, if the plaintiff were trying to show compliance of another country's standard in another country but not in the United States, the manufacturer would argue that the other country's standard is not relevant to products manufactured for sale in the United States. If the other country's standard is admitted in this situation, it would be very damaging evidence to a jury that the manufacturer does not really care about product safety but is only complying with the most minimal standards.

Manufacturers need to keep an ever watchful eye toward how another country's standards can affect any litigation, ensuring they request the court limit or include another country's standards if it will be helpful to the defense of the product.

Sheila T. Kerwin is a shareholder and trial lawyer who chairs the products liability practice group at Halleland Lewis Nilan & Johnson in Minneapolis. She is a member of the coordinating counsel team for product manufacturers nationwide. Kerwin can be contacted at 612-204-4128 or [email protected].