November 23, 2007

Using Standards in Defending Product Liability Cases

Copyrighted material from the February 1996 edition
(Vol. 24, No. 2) of Standardization News
reprinted with the permission of ASTM

By Steven W. Hansen, Esq.

Failure to follow a standard almost assures liability for a manufacturer, but the converse presents a more complex task. Unlike most legal principles, product liability law is a rather recent development. Strict liability for products was first used by the California Supreme Court in the 1960's. Other states began to adopt the notion after the American Law Institute adopted it in 1965. Today, most plaintiffs plead all theories of recovery in a products case; defect in manufacture, defect in design, failure to warn, breach of implied or express warranty and in some cases, negligence.

The difficulty in writing this article is that each state has its own product liability law, either statutory (legislative) and/or decisional (judicial opinions), all roughly the same but with some slight variations on certain details which can prove to be important on this topic. Federal courts use the body of product liability law of the state where the case is tried. The type of evidence that will be admitted in any particular federal or state trial also depends on the rules of evidence of each state (or the uniform Federal Rules of Evidence in Federal trials) and the particular propensity of the judge, who makes all evidentiary decisions in a case. Evidence laws tend to be more uniform than product liability laws, however they work in conjunction. You also have varying skill levels among plaintiff and defense lawyers in making these arguments. The biggest problem is that a party often does not know until just prior to or during the trial as to how the judge will rule on the admission of certain evidence. There are ways of "testing the water" in some cases, however.

Industry standards usually become an issue in design defect cases as opposed to manufacturing defect cases or those involving a failure to warn. The plaintiff’s burden of proof in a design case is fairly easy in a state like California. The plaintiff only has to show that the product failed to perform as safely as an ordinary consumer would expect ( or that the design was a cause of the plaintiff's injury), that the product was in the same condition at the time of the accident as when it left the defendant's control and that it was used in a reasonably foreseeable manner. The defendant must then show that the benefits of such a design outweigh the risk of danger inherent in the challenged design. The focus is thus on the product, not on the manufacturer’s conduct or the system used to create it. This is the rationale used by some courts to exclude evidence of industry custom or practice and in some circumstances, voluntary industry standards. If the plaintiff is also suing on a negligence theory, such evidence would be relevant.

The rules of evidence generally favor the admission of all evidence that is” relevant" meaning evidence that has the tendency to make the existence of some fact more or less probable than it would be without the evidence. Product standards in most cases meet this test, if even in a limited fashion. However there is another rule of evidence which allows most courts to keep out relevant evidence if its value is substantially outweighed (a balancing test) by the danger of undue prejudice, confusion, misleading the jury, delay or needless presentation of cumulative evidence. For example, if the judge felt a jury would be unable to comprehend a product standard and at the same time determine if there was a defect in a product under state law, he could exclude one or more standards, modify them or limit their impact in the form of a written jury instruction (what the jurors must follow as the law) so as to lessen perceived confusion.

In some cases you may not get a jury instruction on your standard, however standards usually are a big part of the cross examination of experts as the basis for their opinions. In design defect cases it usually comes down to your expert versus the plaintiff's expert, who undoubtedly will have the opinion that the product is defective as it was not designed as he would have designed it, as another company designed it, or as "sound engineering principals” dictated. Chances are you will never convince the plaintiff's expert he is wrong. However, with the proper standard on your side you may be able to convince a judge or jury that your client is correct.

Experts are usually given fairly wide latitude when testifying about the basis of their opinion which oftentimes will include applicable standards. The court can exclude the basis of an experts opinion if it is improper. Sometimes the plaintiff’s expert will open the door on a particular topic which was earlier forbidden by the judge which then gives the defendants a chance to rebut his statements. If an expert has technical, scientific or other specialized knowledge that will assist the jury to understand the evidence or determine a fact in issue, the court will allow the expert to testify. Most judges error on the side of letting an expert testify and let the jury decide the weight they will give it. Usually one of the strongest arguments against the plaintiffs expert is that his investigation on the matter is no match for the thoroughly reasoned judgment and analysis that went into the creation of a standard. In other words what testing, field experience, design factors and accident data does the expert have that can contradict years of data collected by hundreds of experts and companies that worked on the standard. If the standard is good it should stand up to such scrutiny.

On appeal the courts generally look to see it the trial court judge abused his discretion (of which they have a lot ) in admitting or excluding evidence or whether the evidence complained about was harmless error that did not affect the substantial rights of the parties.

Many people outside the legal profession are also concerned about changes in standards or products over time and litigation concerning older products. There are a number of concepts that come into play on these issues. The first is the "subsequent remedial measures" (SRM) doctrine which has been adopted in many states. It means that in strict liability cases evidence of changes in the product or its warning, for whatever reason, can be admitted. Plaintiff’s intention of course is to use such information to show culpability. In negligence cases this evidence is usually excluded.

The second doctrine is "state of the art" evidence which is evidence about the limits of scientific, mechanical or physical feasibility at the time when the product was manufactured. Such evidence is usually admissible if relevant (such as to show the cost of alternate designs available at the time) and not overly prejudicial. There is always a dispute as to what state of the art was and standards may be good evidence for experts on both sides in making this determination. For example it may have been state of the art to have disc brakes on aircraft in 1960, but not on private automobiles. The same may be true for airbags.

ASTM standards, like most others, must be constantly updated and there is always the concern that older products made to older standards will need to be upgraded or that the standards should not be updated to avoid the SRM problem altogether. In addition, draft standards are usually in the process of being created years in advance of being formally published. Standards organizations do not recognize them as official but the plaintiff may want to use them against the manufacturer as a SRM or to dispute defendants position on what was state of the art. Of course there are reasons standards are in draft and the manufacturer will need to point this out to the jury. These problems can also occur even without industry-wide standards since most products improve or are changed over time anyway.

Mandatory and voluntary standards are sometimes viewed differently by the courts. Mandatory standards are usually issued by the government although sometimes adopted from voluntary consensus standards. The Consumer Product Safety Commission (CPSC) standards are a good example of mandatory standards. No state standards that address the same issue may proscribe any different standards unless they afford a higher degree of protection. At the same time the CPSC Act provides that compliance with their standards does not relieve a manufacturer of liability for defective products. Some state laws provide, however, that proof of compliance with a mandatory standard creates a presumption of non-defectiveness, which then requires the plaintiff to rebut that evidence by showing that the standard is outdated, that the manufacturer knows of dangers with the products use that are not contemplated by the standard, or that there is a higher voluntary standard that applies.

There are two very beneficial doctrines that come into play occasionally in litigation arising out of the use of mandatory standards. The first is the government contractor immunity (or defense), which only applies when a government contractor can show that the government established the standards for the product, the product conformed and the contractor warned the government about the dangers of the design using the standards. This defense has been used a number of times successfully by manufacturers in cases where the United States is immune from liability for reasons unrelated to this article and the contractor/manufacturer is held in the case on a strict liability theory.

The second scenario is that of "preemption" which stems from the Constitutional doctrine that the laws of the United States are the supreme law of the land and that the powers of the states may be superseded where the intent of Congress is clear. The US Supreme Court has held that "Congress' intent may be explicitly stated in the statutes language or implicitly contained in its structure and purpose. In the absence of an express congressional command, state law is preempted if that law actually conflicts with federal law...or if federal law so thoroughly occupies a legislative field as to make reasonable the inference that Congress left no room for the states to supplement it."1 Conflict pre-emption is found where it is impossible to comply with both federal and state requirements or where state law stands in the way of some federal objectives2.

These arguments have been successfully used by cigarette, medical device, pesticide and some automotive manufacturers, especially in the area of warnings and labeling requirements. The effect of such arguments is to essentially put an end to state strict liability claims; a huge victory for any defendant. The maintenance of the suit itself is seen as an affront to the federal law governing the product. These cases have been getting more attention by the Supreme Court in the last few years as more defendants have been raising the issue.

One thing that companies need to keep in mind is that all standards are by definition minimum standards. Plaintiff attorneys love to highlight this aspect. However, it must be pointed out that the standard is a consensus of the best minds on the subject; consumer, expert and manufacturer and that it is impossible to create anything but a minimum standard. This does not mean the standard is in any way inadequate. Standards should take into account a risk balancing test, weighing such factors as utility, feasibility, cost and safety.

Companies need to be careful not to denigrate the standard or ignore it by creating their own internal standard as this will hurt its overall effectiveness for the industry. It may also create a new defacto standard. Without the support of all segments of the industry behind a standard, its usefulness is limited. The marketing department must also be careful about using the standard as a marketing tool. Advertising claims are one of the first thing savvy plaintiff lawyers look for in a products claim. Advertisements can be very useful in creating implied or express warranty claims.

The process of creating standards is very important in defending them and has a great deal to do with the weight they carry in court. Democratically created standards like those within ASTM are ideal. Serious negative comments, votes or concerns about the proposed standard should be addressed as these same concerns may come up later in litigation. It is always nice to surprise the plaintiffs expert (who may not be an ASTM member) with reasons why his theory or opinion was considered and rejected. You also hope the jury will agree with the majority.

The creation of standards must also involve a careful review of other existing or newly developing standards as these can always be used by a plaintiffs expert (presuming he knows of them) in demeaning your standard. Defense counsel needs to be aware of these problems and move for exclusion of such standards if they are actually not conflicting but rather just a different standard for a different product or purpose. The defense expert should also be able to explain the reasons for such differences, if both standards are before the jury.

Proving that the product actually met the standard is also crucial. In some cases exemplar testing will be necessary as the damaged product is not fully testable. Many standards do not require any record keeping or that you test any number of products; only that every product meet the standard. Test methods often come under scrutiny, especially when the plaintiff learns that records have not been kept or there is a dispute among manufacturers about how tests should be completed. Many unfamiliar with standards often become suspicious when they learn that the company selling the product is responsible for certifying that the product meets the standard and that there are not people from some government agency snooping around the factory in lab coats doing surprise spot tests. The soundness of any self certifying standard needs to be explained to a jury.

Many manufacturers wonder whether it is worth the time, effort and expense to create industry wide standards for their products. Some have concerns about disclosing proprietary or trade secret information in a public forum like ASTM. However, companies can still participate in a meaningful way without disclosing such information. Some companies are also worried that potential adversaries in litigation may learn something valuable by attending the meetings. This is always possible but it is more likely that their adversaries will learn more information through discovery and from other attorneys and experts who have brought similar cases against the company or a competitor.

Most of the time I would rather defend a product liability case where there are relevant standards governing the product. Most attorneys would agree that the benefits outweigh the burdens. In industries where there is litigation involving manufacturers, distributors and retailers, it is helpful to have standards which define the respective roles and responsibilities of each party so that each knows what the position of the other will be in litigation. This cuts down on the "blame game" (which only assists the plaintiff) sometimes played by defendants. It can also reduce the willingness of company experts to testify against competitors in litigation only because they see another product as inferior because it is differently designed or less expensive than theirs.

There are also intangible benefits, such as the favorable impression standards can have on a jury. The company is seen as one interested not just in making a buck but one whose employees have a concern for safety and raising the level of quality among all manufacturers and suppliers of the product. Arguments such as this are also helpful in combating punitive damage awards where the intent of the manufacturer is at issue. This of course assumes proper motives and considerations in creating the standard.


1 Cipollone v. Liggett Group, Inc. (1992) 112 S.Ct. 2608
2 Freightliner Corp. v. Myrick et. al. (1995) 115 S.Ct. 1483

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