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Product Liability Reform

Product liability law is meant to compensate persons injured by defective products and to deter manufacturers from marketing such products. 

PROBLEM:  Product liability laws in some states fail to send clear signals to manufacturers about how to avoid liability, and hold manufacturers liable for failure to adopt certain designs when the manufacturers neither knew, nor could have anticipated, the risk.

ATRA’S POSITION:  ATRA supports legislation that: governs all product liability actions, irrespective of the theory on which they are brought, so that plaintiffs cannot evade the law by inventing new theories of recovery;   permits a plaintiff to recover damages only upon proof that the product was defective and that the defect was the cause of the harm; sets out clear rules for determining when a product is defective; provides clear standards for establishing liability based on manufacturing defects, design defects, and warning defects; provides clear rules requiring proof of causation.

OPPOSITION:  The personal injury bar’s argument against product liability reform – that a strict liability system encourages accident prevention by holding manufacturers, who are in the best position to reduce or eliminate injuries, fully liable for injuries caused by their products – unfairly holds manufacturers liable for any injury related to their activity regardless of their ability to foresee an imminent injury or the consumer’s ability to prevent it.  As the brunt of responsibility has fallen on manufacturers, product liability insurance premiums have risen twice the rate of inflation in recent years. As a result, many U.S. firms have opted to discontinue product research, cut back on introducing new product lines, and raise prices.  Ultimately, the abuse of product liability laws offers consumers fewer domestic products at higher prices and compromises the competitiveness of U.S. firms in foreign and domestic markets.

Alaska

Product Liability Reform: HB 160 (1994). Provides for a 15-year statute of repose in civil actions brought against design and construction professionals.  The statute would begin to run from substantial completion of the work and require that liability be assigned proportionally to the defendant's degree of fault. 

Alabama

Products Liability Reform/Innocent Seller: S.B. 184 (2011). Known as the Alabama Small Business Protection Act, S.B. 184 adds protection for Alabama's retailers against product liabilty suits.  The suits are aimed at the manufacturers, but often the trial lawyers sue Alabama retailers, wholesalers and distributors as defendants even though they did not participate in the manufacturing or design of the product.  This is done in some instances solely to allow the plaintiff to file suit in counties favorable to plaintiffs and keep an out-of-state manufacturer in an Alabama state court and out of federal court.  If, on the other hand, the suit is brought against a retailer or distributor because the manufacturer is unknown and the retailer or distributor is needed in order to provide discovery concerning the manufacturer's identity, the bill provides a mechanism to accomplish this in a reasonable manner so that the suit can then proceed against the appropriate manufacturer.

California

Product Liability Reform: SB 241 (1986). Confirms that under California law, products like foods high in cholesterol, alcohol, and cigarettes, which are inherently unsafe and which ordinary consumers know to be unsafe, should not be the basis for product liability lawsuits.

Colorado

Product Liability Reform: SB 231 (2003). Provides that a product liability action cannot be taken against a manufacturer or seller of a product if the product was used in a manner other than which the product was intended and which could not reasonably have been expected.  Provides for an innocent seller provision which prohibits product liability action against parties who were not the manufacturer of the product.

Florida

Product Liability Reform: HB 775 (1999). Fla. Stat. § 95.031 Establishes a 12-year statute of repose for products with a useful life of 10 years or less, unless the product is specifically warranted a useful life longer than 12 years.  Establishes a 20-year statute of repose for airplanes or vessels in commercial activity, unless the manufacturer specifically warranted a useful life longer than 20 years.  The reform does not apply to cases involving improvements to real property including elevators and escalators, cases involving a latent injury, and cases where the manufacturer, acting though its officers, directors or managing agents, took affirmative steps to conceal a known defect in the product.

Iowa

Product Liability Reform: Statute of Repose: HF 693 (1997); Amended Iowa Code § 614.1. Establishes a 15‑year statute of repose for product liability lawsuits not involving fraud, concealment, latent diseases caused by harmful materials, or specified products.

Illinois

Product Liability Reform: HB 20 (1995). Establishes affidavit requirements in product liability cases.  Creates a presumption of safety, where manufacturers meet state and federal standards, and where no practical or feasible alternative design existed at the time the product was manufactured.  Applies statutes of repose on all product liability cases to bar an action after either 12 years from the first sale or 10 years from the first sale to a user or consumer.  The reform is unconstitutional. Best v. Taylor Machine Works,Inc., 689 N.E.2d 1057 (Ill. 1997).

Indiana

Product Liability Reform: HB 1741 (1995). Bars application of the rule of joint and several liability in product liability cases.  Provides a rebuttable presumption that a product is not defective if: (1) the manufacturer of the product conformed with recognized “state of the art” safety guidelines; or (2) the manufacturer of the product complied with government standards (i.e. approved by FDA, FAA etc...).  Restricts strict liability actions to the manufacturer of the product.

Louisiana

Product Liability Reform: SB 684 (1988). Provides that a product may be unreasonably dangerous only because of one or more of the following characteristics: (a) defective construction or composition; (b) defective design; (c) failure to warn or inadequate warning; or (d) nonconformity with an express warranty.  Provides that a manufacturer of a product shall not be liable for damage proximately caused by a characteristic of the product's design if the manufacturer proves that at the time the product left his control: (a) he did not know and, in light of then-existing reasonably available scientific and technological knowledge, could not have known of the design characteristic that caused the damage; (b) he did not know and, in light of then-existing reasonable available scientific and technological knowledge, could not have known of the alternative design identified by the claimant; or (c) the alternative design identified by the claimant was not feasible, in light of then-existing reasonably available scientific and technological knowledge or then-existing economic practicality.

Maine

Product Liability Reform: LD 346 (1996). Provides that “subsequent remedial measures” or steps taken after an accident to repair or improve the site of injury are not admissible as evidence of negligence.

Michigan

Product Liability Reform: SB 344 (1995); MCLS § 600.2947. Bars application of the rule of joint and several liability in product liability cases.  Provides statutory defenses to product liability claims, including adherence to government standards, FDA standards, and sellers’ defenses.  Provides an absolute defense, where the plaintiff was found to be at least 50% at fault due to intoxication or a controlled substance.  Limits the award of noneconomic damages in product liability cases not involving death or loss of vital bodily function to $280,000.  Limits the award of noneconomic damages in such cases to $500,000.

Product Liability Reform: Venue Reform: HB 4508 (1995); MCLS § 600.1641. Provides venue control in product liability cases. 

Mississippi

Product Liability Reform: HB 1270 (1993). Requires product liability cases to be based on a design, manufacturing or warning defect, or breach of an express warranty, which caused the product to be unreasonably dangerous.  Provides that a product that contains an inherently dangerous characteristic is not defective if the dangerous characteristic cannot be eliminated without substantially reducing the product’s usefulness or desirability and the inherent characteristic is recognized by the ordinary person with ordinary knowledge common to the community.  Provides that a manufacturer or seller cannot be held liable for failure to warn of a product’s dangerous condition if it was not known at the time the product left the manufacturer’s or  seller’s control.  Completely bars from recovery a plaintiff who knowingly and voluntarily exposes himself or herself to a dangerous product condition if he or she is injured as a result of that condition.  Relieves a manufacturer or seller from the duty to warn of a product that poses an open and obvious risk.  Provides that a properly functioning product is not defective unless there was a practical and economically feasible design alternative available at the time of manufacture.  Provides for indemnification of innocent retailers and wholesalers. 

Product Liability Reform: H.B. 13 (special session) (2004); Amended Miss. Code Ann. § 11-1-63. Provides that the seller of a product, other than a manufacturer, cannot be held liable unless the seller had substantial control over the harm causing aspect of the product, the harm was caused by a seller’s alteration or modification of the product, the seller had actual knowledge of the defective condition at the time the product was sold, or the seller made an express warranty about the aspect of the product which caused the plaintiff’s harm.

Montana

Product Liability Reform: SB 380 (1987). Provides statutory defenses to product liability claims, including assumption of the risk and misuse of product.

North Carolina

Product Liability Reform: HB 637 (1995); Amended N.C. Gen. Stat. § 99B-1.1. Provides that there shall be no strict liability in tort for product liability actions.  Provides statutory defenses to product liability claims, including assumption of the risk.

Punitive Damages Reform: HB 729 (1995): N.C. Gen. Stat. §§ 10-15(b), 1D‑25 . Limits the award of punitive damages to the greater of three times the award of compensatory damages or $250,000, unless the defendant caused the injury by driving while impaired.  Requires a plaintiff to show by “clear and convincing” evidence that a defendant was liable for compensatory damages and acted with fraud, malice, willful or wanton conduct.  Requires the determination of awards for punitive damages to be made in a separate proceeding at the request of the defendant.  The statute limiting punitive damages awards to the greater of three times compensatory damages or $250,000 did not violate the right to a jury trial, separation of powers principle, open courts guarantee, prohibition against special legislation, or the principles of due process, equal protection or the right to enjoy the fruits of one’s labor under the State Constitution, and was not void for vagueness.  Rhyne v. K-Mart Corp., 2002 WL 553461 (N.C. App. Apr. 16, 2002). 

North Dakota

Product Liability Reform: HB 1369 (1995). Establishes a ten‑year statute of repose in product liability actions.  Provides a government standards defense.  Prohibits the award of punitive damages, when a manufacturer complies with government standards.  The 10‑year statute of repose is unconstitutional. Dickie v. Farmers Union Oil Co., 2000 ND 111 (N.D. May 25, 2000).

New Hampshire

Product Liability Reform: State of the Art Defense: HB 936 (1988). Provides a state of the art defense for defendants in product liability cases.

Product Liability Reform: Study Committee: SB 339 (1992); RSA 411-A. Establishes a committee to study the impact of product liability on New Hampshire businesses.

Product Liability Reform: SB 76 (1993); RSA 359-F. Establishes a right of indemnification for New Hampshire manufacturers from a claim for damages by the original purchaser of a product, where the product was significantly altered after it left the New Hampshire manufacturer’s control.

New Jersey

Product Liability Reform: SB 2805 (1987). Provides that a manufacturer or seller of a product is liable only if the plaintiff proves by a preponderance of the evidence that the product was not suitable or safe because it: (1) deviated from the design specifications or performance standards; (2) failed to contain adequate warnings; or (3) was designed in a defective manner.  Provides that a manufacturer or seller is not liable if at the time the product left the manufacturer’s control there was not available a practical and feasible alternative design that would have prevented the harm.  Provides that a product’s design is not defective if the harm results from an inherent characteristic of the product that is known to the ordinary person who uses or consumes it.  Provides that a manufacturer or seller is not liable for a design defect if the harm results from an unavoidably unsafe aspect of a product and the product was accompanied by an adequate warning.  Provides that the state of the art provision does not apply if the court makes all of the following determinations: (1) that the product is egregiously unsafe; (2) that the user could not be expected to have knowledge of the product’s risk; and (3) that the product has little or no usefulness.  Provides that a manufacturer or seller in a warning‑defect case is not liable if an adequate warning is given.  (An adequate warning is one that a reasonably prudent person in the similar circumstances would have provided.)  Establishes a rebuttable presumption that a government (FDA) warning is adequate.

Product Liability Reform: SB 1495 (1995). Excludes product sellers from strict liability in product liability actions.

Ohio

Product Liability Reform: HB 1 (1987). Provides that a product’s design is not defective if: (1) an injury occurs due to the inherent characteristics of a product, where the characteristics are recognized by the ordinary person with ordinary knowledge common to the community; or (2) an injury occurs because of a design which is state of the art, unless the manufacturer acted unreasonably in introducing the product into trade or commerce.  Provides that a product is not defective due to lack of warnings if the risk is open and obvious or is a risk that is a matter of common knowledge.  Establishes a complete defense for manufacturers and sellers of ethical drugs and/or devices if they have supplied adequate warnings to learned intermediaries, unless the FDA requires additional warnings.  Provides that a drug manufacturer shall not be liable for punitive damages if the drug was approved by the FDA.

Product Liability Reform: HB 350 (1996). Amends product liability law to include additional requirements for establishing liability.  Prohibits expanding theories of liability, including enterprise liability.  Adopts a fifteen‑year statute of repose in product liability cases, absent latent harm or fraud.  The comprehensive 1996 tort reform law violated the doctrine of separation of powers and the one-subject provision of the State Constitution.  State ex rel. Ohio Academy of Trial Lawyers v. Sheward, 715 N.E.2d 1062 (Ohio 1999).

Product Liability Reform Statute of Repose: Am Sub SB 80 (2004); ORC Ann. 2305.10. Provides for a ten-year statute of repose for product liability actions, with certain exceptions.

Oklahoma

Products Liability Reform: HB 1603 (2009). Provides that a manufacturer shall not be liable if the product is inherently unsafe.  Held unconstitutional by the Oklahoma Supreme Court in Douglas v. Cox Retirement Properties, June 2013.

Product Liability Reform: S.B. 13 (2013) States that in a product liability action, a manufacturer or seller shall not be liable if the product is inherently unsafe and known to be unsafe by the ordinary consumer.  Sets out the defenses to be used in such cases.  For purposes of this section, the term “product liability action” does not include an action based on manufacturing defect or breach of the warranty.  States tat in a product liability action, “if measures are taken which, if taken previously, would have made an event less likely to occur, evidence of the subsequent measures in not admissible to prove a defect in a product, negligence, or culpable conduct in connections with the event.        

Tennessee

Products Liability Reform: Innocent Seller: HB 2008 / SB 1522 (2011). Prohibits products liability lawsuits against a retailer unless it exercised substantial control over the design, manufacture, packaging or labeling of the product, altered the product, gave an express warranty or the manufacturer is insolvent or not subject to process in Tennessee.

Products Liability Reform: Regulatory Compliance: HB 2008 / SB 1522 (2011). Prohibits the award of punitive damages against the seller of the product, with certain exceptions, and prohibits the award of punitive damages against drug or device manufacturers when the product was manufactured in accordance with relevant Federal law, with certain exceptions.  Prohibits the award of punitive damages when the defendant was in compliance with relevant federal and state regulations setting forth specific standards applicable to the activity in question to protect a class of persons or entities that includes the plaintiff.

Texas

Product Liability Reform: SB 4 (1993). Requires proof of an economically and technologically feasible safer alternative design available at the time of manufacture in most product liability actions for defective design.  Provides a defense for manufacturers and sellers of inherently unsafe products that are known to be unsafe.  Establishes a fifteen‑year statute of repose for product liability actions against manufacturers or sellers of manufacturing equipment.  Provides protection for innocent retailers and wholesalers.

Product Liability Reform: HB 4 (2003). Provides for a 15 year statute of repose for product liability cases.  In cases involving latent diseases, the plaintiff must have been exposed within 15 years of the product’s sale and must show symptoms more than 15 years after the sale.  Provides for an innocent seller provision which prohibits actions against non-manufacturing sellers except in specific circumstances such as if the seller participated in the design of the product or knew of the defect at the time of the sale.

Utah

Product Liability Reform: Government Standards Defense: SB 25 (1989). Includes all the provisions of the 1977 product liability statute, except the eight-year statute of repose, which was ruled unconstitutional.  The bill includes a presumptive government standards defense for all products.

Product Liability Reform: Statute of Repose: SB 92 (1991). Establishes a 10-year statute of repose for actions brought against architects, engineers, and builders for design error or faulty construction.  Requires that actions be brought within two years from the date that the defect is discovered.  Requires that breach of contract or warranty claims be brought within 6 years of the date of completion.  The reform does not apply to claims involving intentional or willful misconduct or warranties exceeding the statutory period of six years.  The statute of repose which provided death benefits to dependents only when work-related injury caused death within six years of accident violated the open courts provision of the State Constitution. Hales v. Industrial Commission of Utah, 854 P.2d 537 (Utah App. 1993). 

2013
Oklahoma
Product Liability Reform: S.B. 13 (2013)

States that in a product liability action, a manufacturer or seller shall not be liable if the product is inherently unsafe and known to be unsafe by the ordinary consumer.  Sets out the defenses to be used in such cases.  For purposes of this section, the term “product liability action” does not include an action based on manufacturing defect or breach of the warranty.  States tat in a product liability action, “if measures are taken which, if taken previously, would have made an event less likely to occur, evidence of the subsequent measures in not admissible to prove a defect in a product, negligence, or culpable conduct in connections with the event.        

2011
Tennessee
Products Liability Reform: Innocent Seller: HB 2008 / SB 1522 (2011).

Prohibits products liability lawsuits against a retailer unless it exercised substantial control over the design, manufacture, packaging or labeling of the product, altered the product, gave an express warranty or the manufacturer is insolvent or not subject to process in Tennessee.

2011
Tennessee
Products Liability Reform: Regulatory Compliance: HB 2008 / SB 1522 (2011).

Prohibits the award of punitive damages against the seller of the product, with certain exceptions, and prohibits the award of punitive damages against drug or device manufacturers when the product was manufactured in accordance with relevant Federal law, with certain exceptions.  Prohibits the award of punitive damages when the defendant was in compliance with relevant federal and state regulations setting forth specific standards applicable to the activity in question to protect a class of persons or entities that includes the plaintiff.

2011
Alabama
Products Liability Reform/Innocent Seller: S.B. 184 (2011).

Known as the Alabama Small Business Protection Act, S.B. 184 adds protection for Alabama's retailers against product liabilty suits.  The suits are aimed at the manufacturers, but often the trial lawyers sue Alabama retailers, wholesalers and distributors as defendants even though they did not participate in the manufacturing or design of the product.  This is done in some instances solely to allow the plaintiff to file suit in counties favorable to plaintiffs and keep an out-of-state manufacturer in an Alabama state court and out of federal court.  If, on the other hand, the suit is brought against a retailer or distributor because the manufacturer is unknown and the retailer or distributor is needed in order to provide discovery concerning the manufacturer's identity, the bill provides a mechanism to accomplish this in a reasonable manner so that the suit can then proceed against the appropriate manufacturer.

2009
Oklahoma
Products Liability Reform: HB 1603 (2009).

Provides that a manufacturer shall not be liable if the product is inherently unsafe.  Held unconstitutional by the Oklahoma Supreme Court in Douglas v. Cox Retirement Properties, June 2013.

2004
Mississippi
Product Liability Reform: H.B. 13 (special session) (2004); Amended Miss. Code Ann. § 11-1-63.

Provides that the seller of a product, other than a manufacturer, cannot be held liable unless the seller had substantial control over the harm causing aspect of the product, the harm was caused by a seller’s alteration or modification of the product, the seller had actual knowledge of the defective condition at the time the product was sold, or the seller made an express warranty about the aspect of the product which caused the plaintiff’s harm.

2004
Ohio
Product Liability Reform Statute of Repose: Am Sub SB 80 (2004); ORC Ann. 2305.10.

Provides for a ten-year statute of repose for product liability actions, with certain exceptions.

2003
Texas
Product Liability Reform: HB 4 (2003).

Provides for a 15 year statute of repose for product liability cases.  In cases involving latent diseases, the plaintiff must have been exposed within 15 years of the product’s sale and must show symptoms more than 15 years after the sale.  Provides for an innocent seller provision which prohibits actions against non-manufacturing sellers except in specific circumstances such as if the seller participated in the design of the product or knew of the defect at the time of the sale.

2003
Colorado
Product Liability Reform: SB 231 (2003).

Provides that a product liability action cannot be taken against a manufacturer or seller of a product if the product was used in a manner other than which the product was intended and which could not reasonably have been expected.  Provides for an innocent seller provision which prohibits product liability action against parties who were not the manufacturer of the product.

1999
Florida
Product Liability Reform: HB 775 (1999). Fla. Stat. § 95.031

Establishes a 12-year statute of repose for products with a useful life of 10 years or less, unless the product is specifically warranted a useful life longer than 12 years.  Establishes a 20-year statute of repose for airplanes or vessels in commercial activity, unless the manufacturer specifically warranted a useful life longer than 20 years.  The reform does not apply to cases involving improvements to real property including elevators and escalators, cases involving a latent injury, and cases where the manufacturer, acting though its officers, directors or managing agents, took affirmative steps to conceal a known defect in the product.

1997
Iowa
Product Liability Reform: Statute of Repose: HF 693 (1997); Amended Iowa Code § 614.1.

Establishes a 15‑year statute of repose for product liability lawsuits not involving fraud, concealment, latent diseases caused by harmful materials, or specified products.

1996
Ohio
Product Liability Reform: HB 350 (1996).

Amends product liability law to include additional requirements for establishing liability.  Prohibits expanding theories of liability, including enterprise liability.  Adopts a fifteen‑year statute of repose in product liability cases, absent latent harm or fraud.  The comprehensive 1996 tort reform law violated the doctrine of separation of powers and the one-subject provision of the State Constitution.  State ex rel. Ohio Academy of Trial Lawyers v. Sheward, 715 N.E.2d 1062 (Ohio 1999).

1996
Maine
Product Liability Reform: LD 346 (1996).

Provides that “subsequent remedial measures” or steps taken after an accident to repair or improve the site of injury are not admissible as evidence of negligence.

1995
Illinois
Product Liability Reform: HB 20 (1995).

Establishes affidavit requirements in product liability cases.  Creates a presumption of safety, where manufacturers meet state and federal standards, and where no practical or feasible alternative design existed at the time the product was manufactured.  Applies statutes of repose on all product liability cases to bar an action after either 12 years from the first sale or 10 years from the first sale to a user or consumer.  The reform is unconstitutional. Best v. Taylor Machine Works,Inc., 689 N.E.2d 1057 (Ill. 1997).

1995
North Dakota
Product Liability Reform: HB 1369 (1995).

Establishes a ten‑year statute of repose in product liability actions.  Provides a government standards defense.  Prohibits the award of punitive damages, when a manufacturer complies with government standards.  The 10‑year statute of repose is unconstitutional. Dickie v. Farmers Union Oil Co., 2000 ND 111 (N.D. May 25, 2000).

1995
Michigan
Product Liability Reform: Venue Reform: HB 4508 (1995); MCLS § 600.1641.

Provides venue control in product liability cases. 

1995
New Jersey
Product Liability Reform: SB 1495 (1995).

Excludes product sellers from strict liability in product liability actions.

1995
North Carolina
Product Liability Reform: HB 637 (1995); Amended N.C. Gen. Stat. § 99B-1.1.

Provides that there shall be no strict liability in tort for product liability actions.  Provides statutory defenses to product liability claims, including assumption of the risk.

1995
Indiana
Product Liability Reform: HB 1741 (1995).

Bars application of the rule of joint and several liability in product liability cases.  Provides a rebuttable presumption that a product is not defective if: (1) the manufacturer of the product conformed with recognized “state of the art” safety guidelines; or (2) the manufacturer of the product complied with government standards (i.e. approved by FDA, FAA etc...).  Restricts strict liability actions to the manufacturer of the product.

1995
Michigan
Product Liability Reform: SB 344 (1995); MCLS § 600.2947.

Bars application of the rule of joint and several liability in product liability cases.  Provides statutory defenses to product liability claims, including adherence to government standards, FDA standards, and sellers’ defenses.  Provides an absolute defense, where the plaintiff was found to be at least 50% at fault due to intoxication or a controlled substance.  Limits the award of noneconomic damages in product liability cases not involving death or loss of vital bodily function to $280,000.  Limits the award of noneconomic damages in such cases to $500,000.

1995
North Carolina
Punitive Damages Reform: HB 729 (1995): N.C. Gen. Stat. §§ 10-15(b), 1D‑25 .

Limits the award of punitive damages to the greater of three times the award of compensatory damages or $250,000, unless the defendant caused the injury by driving while impaired.  Requires a plaintiff to show by “clear and convincing” evidence that a defendant was liable for compensatory damages and acted with fraud, malice, willful or wanton conduct.  Requires the determination of awards for punitive damages to be made in a separate proceeding at the request of the defendant.  The statute limiting punitive damages awards to the greater of three times compensatory damages or $250,000 did not violate the right to a jury trial, separation of powers principle, open courts guarantee, prohibition against special legislation, or the principles of due process, equal protection or the right to enjoy the fruits of one’s labor under the State Constitution, and was not void for vagueness.  Rhyne v. K-Mart Corp., 2002 WL 553461 (N.C. App. Apr. 16, 2002). 

1994
Alaska
Product Liability Reform: HB 160 (1994).

Provides for a 15-year statute of repose in civil actions brought against design and construction professionals.  The statute would begin to run from substantial completion of the work and require that liability be assigned proportionally to the defendant's degree of fault. 

1993
Mississippi
Product Liability Reform: HB 1270 (1993).

Requires product liability cases to be based on a design, manufacturing or warning defect, or breach of an express warranty, which caused the product to be unreasonably dangerous.  Provides that a product that contains an inherently dangerous characteristic is not defective if the dangerous characteristic cannot be eliminated without substantially reducing the product’s usefulness or desirability and the inherent characteristic is recognized by the ordinary person with ordinary knowledge common to the community.  Provides that a manufacturer or seller cannot be held liable for failure to warn of a product’s dangerous condition if it was not known at the time the product left the manufacturer’s or  seller’s control.  Completely bars from recovery a plaintiff who knowingly and voluntarily exposes himself or herself to a dangerous product condition if he or she is injured as a result of that condition.  Relieves a manufacturer or seller from the duty to warn of a product that poses an open and obvious risk.  Provides that a properly functioning product is not defective unless there was a practical and economically feasible design alternative available at the time of manufacture.  Provides for indemnification of innocent retailers and wholesalers. 

1993
Texas
Product Liability Reform: SB 4 (1993).

Requires proof of an economically and technologically feasible safer alternative design available at the time of manufacture in most product liability actions for defective design.  Provides a defense for manufacturers and sellers of inherently unsafe products that are known to be unsafe.  Establishes a fifteen‑year statute of repose for product liability actions against manufacturers or sellers of manufacturing equipment.  Provides protection for innocent retailers and wholesalers.

1993
New Hampshire
Product Liability Reform: SB 76 (1993); RSA 359-F.

Establishes a right of indemnification for New Hampshire manufacturers from a claim for damages by the original purchaser of a product, where the product was significantly altered after it left the New Hampshire manufacturer’s control.

1992
New Hampshire
Product Liability Reform: Study Committee: SB 339 (1992); RSA 411-A.

Establishes a committee to study the impact of product liability on New Hampshire businesses.

1991
Utah
Product Liability Reform: Statute of Repose: SB 92 (1991).

Establishes a 10-year statute of repose for actions brought against architects, engineers, and builders for design error or faulty construction.  Requires that actions be brought within two years from the date that the defect is discovered.  Requires that breach of contract or warranty claims be brought within 6 years of the date of completion.  The reform does not apply to claims involving intentional or willful misconduct or warranties exceeding the statutory period of six years.  The statute of repose which provided death benefits to dependents only when work-related injury caused death within six years of accident violated the open courts provision of the State Constitution. Hales v. Industrial Commission of Utah, 854 P.2d 537 (Utah App. 1993). 

1989
Utah
Product Liability Reform: Government Standards Defense: SB 25 (1989).

Includes all the provisions of the 1977 product liability statute, except the eight-year statute of repose, which was ruled unconstitutional.  The bill includes a presumptive government standards defense for all products.

1988
New Hampshire
Product Liability Reform: State of the Art Defense: HB 936 (1988).

Provides a state of the art defense for defendants in product liability cases.

1988
Louisiana
Product Liability Reform: SB 684 (1988).

Provides that a product may be unreasonably dangerous only because of one or more of the following characteristics: (a) defective construction or composition; (b) defective design; (c) failure to warn or inadequate warning; or (d) nonconformity with an express warranty.  Provides that a manufacturer of a product shall not be liable for damage proximately caused by a characteristic of the product's design if the manufacturer proves that at the time the product left his control: (a) he did not know and, in light of then-existing reasonably available scientific and technological knowledge, could not have known of the design characteristic that caused the damage; (b) he did not know and, in light of then-existing reasonable available scientific and technological knowledge, could not have known of the alternative design identified by the claimant; or (c) the alternative design identified by the claimant was not feasible, in light of then-existing reasonably available scientific and technological knowledge or then-existing economic practicality.

1987
Montana
Product Liability Reform: SB 380 (1987).

Provides statutory defenses to product liability claims, including assumption of the risk and misuse of product.

1987
New Jersey
Product Liability Reform: SB 2805 (1987).

Provides that a manufacturer or seller of a product is liable only if the plaintiff proves by a preponderance of the evidence that the product was not suitable or safe because it: (1) deviated from the design specifications or performance standards; (2) failed to contain adequate warnings; or (3) was designed in a defective manner.  Provides that a manufacturer or seller is not liable if at the time the product left the manufacturer’s control there was not available a practical and feasible alternative design that would have prevented the harm.  Provides that a product’s design is not defective if the harm results from an inherent characteristic of the product that is known to the ordinary person who uses or consumes it.  Provides that a manufacturer or seller is not liable for a design defect if the harm results from an unavoidably unsafe aspect of a product and the product was accompanied by an adequate warning.  Provides that the state of the art provision does not apply if the court makes all of the following determinations: (1) that the product is egregiously unsafe; (2) that the user could not be expected to have knowledge of the product’s risk; and (3) that the product has little or no usefulness.  Provides that a manufacturer or seller in a warning‑defect case is not liable if an adequate warning is given.  (An adequate warning is one that a reasonably prudent person in the similar circumstances would have provided.)  Establishes a rebuttable presumption that a government (FDA) warning is adequate.

1987
Ohio
Product Liability Reform: HB 1 (1987).

Provides that a product’s design is not defective if: (1) an injury occurs due to the inherent characteristics of a product, where the characteristics are recognized by the ordinary person with ordinary knowledge common to the community; or (2) an injury occurs because of a design which is state of the art, unless the manufacturer acted unreasonably in introducing the product into trade or commerce.  Provides that a product is not defective due to lack of warnings if the risk is open and obvious or is a risk that is a matter of common knowledge.  Establishes a complete defense for manufacturers and sellers of ethical drugs and/or devices if they have supplied adequate warnings to learned intermediaries, unless the FDA requires additional warnings.  Provides that a drug manufacturer shall not be liable for punitive damages if the drug was approved by the FDA.

1986
California
Product Liability Reform: SB 241 (1986).

Confirms that under California law, products like foods high in cholesterol, alcohol, and cigarettes, which are inherently unsafe and which ordinary consumers know to be unsafe, should not be the basis for product liability lawsuits.

Constitutionality: Challenged and Upheld

North Carolina
Punitive Damages Reform: HB 729 (1995): N.C. Gen. Stat. §§ 10-15(b), 1D‑25 .

Limits the award of punitive damages to the greater of three times the award of compensatory damages or $250,000, unless the defendant caused the injury by driving while impaired.  Requires a plaintiff to show by “clear and convincing” evidence that a defendant was liable for compensatory damages and acted with fraud, malice, willful or wanton conduct.  Requires the determination of awards for punitive damages to be made in a separate proceeding at the request of the defendant.  The statute limiting punitive damages awards to the greater of three times compensatory damages or $250,000 did not violate the right to a jury trial, separation of powers principle, open courts guarantee, prohibition against special legislation, or the principles of due process, equal protection or the right to enjoy the fruits of one’s labor under the State Constitution, and was not void for vagueness.  Rhyne v. K-Mart Corp., 2002 WL 553461 (N.C. App. Apr. 16, 2002). 

Constitutionality: Unchallenged

Oklahoma
Product Liability Reform: S.B. 13 (2013)

States that in a product liability action, a manufacturer or seller shall not be liable if the product is inherently unsafe and known to be unsafe by the ordinary consumer.  Sets out the defenses to be used in such cases.  For purposes of this section, the term “product liability action” does not include an action based on manufacturing defect or breach of the warranty.  States tat in a product liability action, “if measures are taken which, if taken previously, would have made an event less likely to occur, evidence of the subsequent measures in not admissible to prove a defect in a product, negligence, or culpable conduct in connections with the event.        

Tennessee
Products Liability Reform: Innocent Seller: HB 2008 / SB 1522 (2011).

Prohibits products liability lawsuits against a retailer unless it exercised substantial control over the design, manufacture, packaging or labeling of the product, altered the product, gave an express warranty or the manufacturer is insolvent or not subject to process in Tennessee.

Tennessee
Products Liability Reform: Regulatory Compliance: HB 2008 / SB 1522 (2011).

Prohibits the award of punitive damages against the seller of the product, with certain exceptions, and prohibits the award of punitive damages against drug or device manufacturers when the product was manufactured in accordance with relevant Federal law, with certain exceptions.  Prohibits the award of punitive damages when the defendant was in compliance with relevant federal and state regulations setting forth specific standards applicable to the activity in question to protect a class of persons or entities that includes the plaintiff.

Alabama
Products Liability Reform/Innocent Seller: S.B. 184 (2011).

Known as the Alabama Small Business Protection Act, S.B. 184 adds protection for Alabama's retailers against product liabilty suits.  The suits are aimed at the manufacturers, but often the trial lawyers sue Alabama retailers, wholesalers and distributors as defendants even though they did not participate in the manufacturing or design of the product.  This is done in some instances solely to allow the plaintiff to file suit in counties favorable to plaintiffs and keep an out-of-state manufacturer in an Alabama state court and out of federal court.  If, on the other hand, the suit is brought against a retailer or distributor because the manufacturer is unknown and the retailer or distributor is needed in order to provide discovery concerning the manufacturer's identity, the bill provides a mechanism to accomplish this in a reasonable manner so that the suit can then proceed against the appropriate manufacturer.

Mississippi
Product Liability Reform: H.B. 13 (special session) (2004); Amended Miss. Code Ann. § 11-1-63.

Provides that the seller of a product, other than a manufacturer, cannot be held liable unless the seller had substantial control over the harm causing aspect of the product, the harm was caused by a seller’s alteration or modification of the product, the seller had actual knowledge of the defective condition at the time the product was sold, or the seller made an express warranty about the aspect of the product which caused the plaintiff’s harm.

Ohio
Product Liability Reform Statute of Repose: Am Sub SB 80 (2004); ORC Ann. 2305.10.

Provides for a ten-year statute of repose for product liability actions, with certain exceptions.

Texas
Product Liability Reform: HB 4 (2003).

Provides for a 15 year statute of repose for product liability cases.  In cases involving latent diseases, the plaintiff must have been exposed within 15 years of the product’s sale and must show symptoms more than 15 years after the sale.  Provides for an innocent seller provision which prohibits actions against non-manufacturing sellers except in specific circumstances such as if the seller participated in the design of the product or knew of the defect at the time of the sale.

Colorado
Product Liability Reform: SB 231 (2003).

Provides that a product liability action cannot be taken against a manufacturer or seller of a product if the product was used in a manner other than which the product was intended and which could not reasonably have been expected.  Provides for an innocent seller provision which prohibits product liability action against parties who were not the manufacturer of the product.

Florida
Product Liability Reform: HB 775 (1999). Fla. Stat. § 95.031

Establishes a 12-year statute of repose for products with a useful life of 10 years or less, unless the product is specifically warranted a useful life longer than 12 years.  Establishes a 20-year statute of repose for airplanes or vessels in commercial activity, unless the manufacturer specifically warranted a useful life longer than 20 years.  The reform does not apply to cases involving improvements to real property including elevators and escalators, cases involving a latent injury, and cases where the manufacturer, acting though its officers, directors or managing agents, took affirmative steps to conceal a known defect in the product.

Iowa
Product Liability Reform: Statute of Repose: HF 693 (1997); Amended Iowa Code § 614.1.

Establishes a 15‑year statute of repose for product liability lawsuits not involving fraud, concealment, latent diseases caused by harmful materials, or specified products.

Maine
Product Liability Reform: LD 346 (1996).

Provides that “subsequent remedial measures” or steps taken after an accident to repair or improve the site of injury are not admissible as evidence of negligence.

Michigan
Product Liability Reform: Venue Reform: HB 4508 (1995); MCLS § 600.1641.

Provides venue control in product liability cases. 

New Jersey
Product Liability Reform: SB 1495 (1995).

Excludes product sellers from strict liability in product liability actions.

North Carolina
Product Liability Reform: HB 637 (1995); Amended N.C. Gen. Stat. § 99B-1.1.

Provides that there shall be no strict liability in tort for product liability actions.  Provides statutory defenses to product liability claims, including assumption of the risk.

Indiana
Product Liability Reform: HB 1741 (1995).

Bars application of the rule of joint and several liability in product liability cases.  Provides a rebuttable presumption that a product is not defective if: (1) the manufacturer of the product conformed with recognized “state of the art” safety guidelines; or (2) the manufacturer of the product complied with government standards (i.e. approved by FDA, FAA etc...).  Restricts strict liability actions to the manufacturer of the product.

Michigan
Product Liability Reform: SB 344 (1995); MCLS § 600.2947.

Bars application of the rule of joint and several liability in product liability cases.  Provides statutory defenses to product liability claims, including adherence to government standards, FDA standards, and sellers’ defenses.  Provides an absolute defense, where the plaintiff was found to be at least 50% at fault due to intoxication or a controlled substance.  Limits the award of noneconomic damages in product liability cases not involving death or loss of vital bodily function to $280,000.  Limits the award of noneconomic damages in such cases to $500,000.

Alaska
Product Liability Reform: HB 160 (1994).

Provides for a 15-year statute of repose in civil actions brought against design and construction professionals.  The statute would begin to run from substantial completion of the work and require that liability be assigned proportionally to the defendant's degree of fault. 

Mississippi
Product Liability Reform: HB 1270 (1993).

Requires product liability cases to be based on a design, manufacturing or warning defect, or breach of an express warranty, which caused the product to be unreasonably dangerous.  Provides that a product that contains an inherently dangerous characteristic is not defective if the dangerous characteristic cannot be eliminated without substantially reducing the product’s usefulness or desirability and the inherent characteristic is recognized by the ordinary person with ordinary knowledge common to the community.  Provides that a manufacturer or seller cannot be held liable for failure to warn of a product’s dangerous condition if it was not known at the time the product left the manufacturer’s or  seller’s control.  Completely bars from recovery a plaintiff who knowingly and voluntarily exposes himself or herself to a dangerous product condition if he or she is injured as a result of that condition.  Relieves a manufacturer or seller from the duty to warn of a product that poses an open and obvious risk.  Provides that a properly functioning product is not defective unless there was a practical and economically feasible design alternative available at the time of manufacture.  Provides for indemnification of innocent retailers and wholesalers. 

Texas
Product Liability Reform: SB 4 (1993).

Requires proof of an economically and technologically feasible safer alternative design available at the time of manufacture in most product liability actions for defective design.  Provides a defense for manufacturers and sellers of inherently unsafe products that are known to be unsafe.  Establishes a fifteen‑year statute of repose for product liability actions against manufacturers or sellers of manufacturing equipment.  Provides protection for innocent retailers and wholesalers.

New Hampshire
Product Liability Reform: SB 76 (1993); RSA 359-F.

Establishes a right of indemnification for New Hampshire manufacturers from a claim for damages by the original purchaser of a product, where the product was significantly altered after it left the New Hampshire manufacturer’s control.

New Hampshire
Product Liability Reform: Study Committee: SB 339 (1992); RSA 411-A.

Establishes a committee to study the impact of product liability on New Hampshire businesses.

Utah
Product Liability Reform: Government Standards Defense: SB 25 (1989).

Includes all the provisions of the 1977 product liability statute, except the eight-year statute of repose, which was ruled unconstitutional.  The bill includes a presumptive government standards defense for all products.

New Hampshire
Product Liability Reform: State of the Art Defense: HB 936 (1988).

Provides a state of the art defense for defendants in product liability cases.

Louisiana
Product Liability Reform: SB 684 (1988).

Provides that a product may be unreasonably dangerous only because of one or more of the following characteristics: (a) defective construction or composition; (b) defective design; (c) failure to warn or inadequate warning; or (d) nonconformity with an express warranty.  Provides that a manufacturer of a product shall not be liable for damage proximately caused by a characteristic of the product's design if the manufacturer proves that at the time the product left his control: (a) he did not know and, in light of then-existing reasonably available scientific and technological knowledge, could not have known of the design characteristic that caused the damage; (b) he did not know and, in light of then-existing reasonable available scientific and technological knowledge, could not have known of the alternative design identified by the claimant; or (c) the alternative design identified by the claimant was not feasible, in light of then-existing reasonably available scientific and technological knowledge or then-existing economic practicality.

Montana
Product Liability Reform: SB 380 (1987).

Provides statutory defenses to product liability claims, including assumption of the risk and misuse of product.

New Jersey
Product Liability Reform: SB 2805 (1987).

Provides that a manufacturer or seller of a product is liable only if the plaintiff proves by a preponderance of the evidence that the product was not suitable or safe because it: (1) deviated from the design specifications or performance standards; (2) failed to contain adequate warnings; or (3) was designed in a defective manner.  Provides that a manufacturer or seller is not liable if at the time the product left the manufacturer’s control there was not available a practical and feasible alternative design that would have prevented the harm.  Provides that a product’s design is not defective if the harm results from an inherent characteristic of the product that is known to the ordinary person who uses or consumes it.  Provides that a manufacturer or seller is not liable for a design defect if the harm results from an unavoidably unsafe aspect of a product and the product was accompanied by an adequate warning.  Provides that the state of the art provision does not apply if the court makes all of the following determinations: (1) that the product is egregiously unsafe; (2) that the user could not be expected to have knowledge of the product’s risk; and (3) that the product has little or no usefulness.  Provides that a manufacturer or seller in a warning‑defect case is not liable if an adequate warning is given.  (An adequate warning is one that a reasonably prudent person in the similar circumstances would have provided.)  Establishes a rebuttable presumption that a government (FDA) warning is adequate.

Ohio
Product Liability Reform: HB 1 (1987).

Provides that a product’s design is not defective if: (1) an injury occurs due to the inherent characteristics of a product, where the characteristics are recognized by the ordinary person with ordinary knowledge common to the community; or (2) an injury occurs because of a design which is state of the art, unless the manufacturer acted unreasonably in introducing the product into trade or commerce.  Provides that a product is not defective due to lack of warnings if the risk is open and obvious or is a risk that is a matter of common knowledge.  Establishes a complete defense for manufacturers and sellers of ethical drugs and/or devices if they have supplied adequate warnings to learned intermediaries, unless the FDA requires additional warnings.  Provides that a drug manufacturer shall not be liable for punitive damages if the drug was approved by the FDA.

California
Product Liability Reform: SB 241 (1986).

Confirms that under California law, products like foods high in cholesterol, alcohol, and cigarettes, which are inherently unsafe and which ordinary consumers know to be unsafe, should not be the basis for product liability lawsuits.

Constitutionality: Challenged and Struckdown

Oklahoma
Products Liability Reform: HB 1603 (2009).

Provides that a manufacturer shall not be liable if the product is inherently unsafe.  Held unconstitutional by the Oklahoma Supreme Court in Douglas v. Cox Retirement Properties, June 2013.

Ohio
Product Liability Reform: HB 350 (1996).

Amends product liability law to include additional requirements for establishing liability.  Prohibits expanding theories of liability, including enterprise liability.  Adopts a fifteen‑year statute of repose in product liability cases, absent latent harm or fraud.  The comprehensive 1996 tort reform law violated the doctrine of separation of powers and the one-subject provision of the State Constitution.  State ex rel. Ohio Academy of Trial Lawyers v. Sheward, 715 N.E.2d 1062 (Ohio 1999).

Illinois
Product Liability Reform: HB 20 (1995).

Establishes affidavit requirements in product liability cases.  Creates a presumption of safety, where manufacturers meet state and federal standards, and where no practical or feasible alternative design existed at the time the product was manufactured.  Applies statutes of repose on all product liability cases to bar an action after either 12 years from the first sale or 10 years from the first sale to a user or consumer.  The reform is unconstitutional. Best v. Taylor Machine Works,Inc., 689 N.E.2d 1057 (Ill. 1997).

North Dakota
Product Liability Reform: HB 1369 (1995).

Establishes a ten‑year statute of repose in product liability actions.  Provides a government standards defense.  Prohibits the award of punitive damages, when a manufacturer complies with government standards.  The 10‑year statute of repose is unconstitutional. Dickie v. Farmers Union Oil Co., 2000 ND 111 (N.D. May 25, 2000).

Utah
Product Liability Reform: Statute of Repose: SB 92 (1991).

Establishes a 10-year statute of repose for actions brought against architects, engineers, and builders for design error or faulty construction.  Requires that actions be brought within two years from the date that the defect is discovered.  Requires that breach of contract or warranty claims be brought within 6 years of the date of completion.  The reform does not apply to claims involving intentional or willful misconduct or warranties exceeding the statutory period of six years.  The statute of repose which provided death benefits to dependents only when work-related injury caused death within six years of accident violated the open courts provision of the State Constitution. Hales v. Industrial Commission of Utah, 854 P.2d 537 (Utah App. 1993).