Product Liability

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 Opinion:

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.

Comprehensive Products Liability Reform – S.B. 216

Montana|2023

Montana – 2023

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  • Enables defendants to raise a comparative fault defense when the plaintiff asserts a strict product liability claim.
  • Expands the statutory misuse defense to include use of the product at issue in a manner that contravenes an express warning or instruction provided with the product
  • Establishes an affirmative defense that the product at issue could not have been made safer by the adoption of a reasonable alternative design or manufacturing process that was available at the time the product was first used
  • Creates a 10-year statute of repose
  • Establishes a rebuttable presumption that the product was not defective and that the seller was not negligent if the product complied with mandatory government safety statutes, regulations, or standards applicable to the product at issue and pertinent to the characteristics that allegedly caused the injury
  • Provides protection against product liability lawsuits for sellers who are not also manufacturers of the product at issue.

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Unchallenged

MMPA and Punitive Damages Reform – S.B. 224

Missouri|2020

MISSOURI MERCHANDISING PRACTICES ACT (MMPA) REFORM A person seeking to

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MISSOURI MERCHANDISING PRACTICES ACT (MMPA) REFORM

A person seeking to recover damages for unlawful merchandising practices shall establish that the person acted as a reasonable consumer, that the alleged unlawful act would cause a reasonable person to enter into the transaction that resulted in damages, and the individual damages with sufficiently definitive and objective evidence to allow the loss to be calculated with a reasonable degree of certainty.  A court may dismiss a claim for failure to show a likelihood that the alleged unlawful act would mislead a reasonable consumer.  In a class action, any class representative shall establish these requirements.  All other members of the class shall establish individual damages in a manner determined by the court.  In addition to current damages available, a court may provide equitable relief as it deems necessary to protect the party from the unlawful acts.

No action may be brought under these provisions to recover damages for personal injury or death in which a claim arises out of the rendering of or failure to render health care services. Furthermore, this act provides that any award of attorney’s fees shall bear a reasonable relationship to the amount of the judgment.  However, when the judgment grants equitable relief the attorney’s fees shall be based on the amount of time reasonably expended.

PUNITIVE DAMAGES REFORM

Provides that punitive damages shall only be awarded if the plaintiff proves by clear and convincing evidence that the defendant intentionally harmed the plaintiff without just cause or acted with a deliberate and flagrant disregard for the safety of others, and the plaintiff is awarded more than nominal damages.  Punitive damages may be awarded against an employer due to an employee’s conduct in certain situations, as provided in the act.  When an employer admits liability for the actions of an agent in a claim for compensatory damages, the court shall grant limited discovery consisting only of employment records and documents or information related to the agent’s qualifications.

A claim for punitive damages shall not be contained in the initial pleading and may only be filed as a written motion with permission of the court no later than 120 days prior to the final pretrial conference or trial date.  The written motion for punitive damages must be supported by evidence.  The amount of punitive damages shall not be based on harm to nonparties.  A pleading seeking a punitive damage award may be filed only after the court determines that the trier of fact could reasonably conclude that the standards for a punitive damage award, as provided in the act, have been met.  The responsive pleading shall be limited to a response of the newly amended punitive damages claim.

The legislation provides that the defendant may also be credited for punitive damages paid in a federal court.

These provisions shall not apply to claims for unlawful housing practices under the Missouri Human Rights Act.

Modifies the definition of “punitive damages” as it relates to actions for damages against a health care provider for personal injury or death caused by the rendering of health care services.  In order to be awarded punitive damages, the jury must find by clear and convincing evidence that the health care provider intentionally caused damage or demonstrated malicious misconduct. Evidence of negligence, including indifference or conscious disregard for the safety of others, does not constitute intentional conduct or malicious misconduct.


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Unchallenged

Innocent Seller – H.B. 2850

West Virginia|2017

Limits product liability against a seller to the manufacturer of

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Limits product liability against a seller to the manufacturer of the product unless the seller had actual knowledge of the defect in the product that was a proximate cause of the harm, exercised substantial control over the aspect of manufacture, construction, design, installation, assembly, or instructions of the product that was a proximate cause of the harm, altered, modified, or installed the product in a way not authorized or requested by the manufacturer, or the court determines by clear and convincing evidence that the party asserting the product liability action would be unable to enforce judgment against the manufacturer.


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Unchallenged

Government Rules Defense: H.B. 775 (1999)

Florida|1999

Provides a rebuttable presumption of liability if the product violated

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Provides a rebuttable presumption of liability if the product violated any such standards.  Provides a rebuttable presumption that a product is not defective if the product met federal or state standards.


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Unchallenged

State of the Art Defense: H.B. 775 (1999)

Florida|1999

Requires a jury to consider the state of the art

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Requires a jury to consider the state of the art of scientific and technical knowledge that existed at the time when the product was manufactured.


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Unchallenged

Product Liability Reform: S.B. 1 (2011)

Wisconsin|2011

Requires proof of a “reasonable alternative design” in an alleged

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Requires proof of a “reasonable alternative design” in an alleged defective design of a product, moving Wisconsin away from the broad “consumer expectation” test.


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Unchallenged

Manufacturers’ Liability for Prescription Drug Warning: S.B. 474 (2011)

West Virginia|2011

Provides a choice of law provision when nonresidents bring an

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Provides a choice of law provision when nonresidents bring an action against the manufacturer or distributor of a prescription drug for inadequate warnings.  Application of the learned intermediary doctrine would be dependent on the law of the state in which the injury occurred.


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Unchallenged

Product Liability: H.B. 3365 (2014)

Oklahoma|2014

Deals with rebuttable presumptions against liability for any manufacturer where

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Deals with rebuttable presumptions against liability for any manufacturer where the product complied with mandatory safety standards or regulations adopted and promulgated by the federal government.


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Unchallenged

Learned Intermediary Doctrine: S.B. 15 (2016)

West Virginia|2016

Adopts and allows the development of a learned intermediary doctrine

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Adopts and allows the development of a learned intermediary doctrine as a defense in cases based upon claims of inadequate warning or instruction for prescription drugs or devices.


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Unchallenged

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

Utah|1991

Establishes a 10-year statute of repose for actions brought against

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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).


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Product Liability Reform: HB 4 (2003).

Texas|2003

Provides for a 15 year statute of repose for product

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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.


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Challenged and Upheld

Fiengo v. Gen. Motors Corp., 225 S.W.3d 858 (Tex. App.-Dallas 2007).

Product Liability Reform: SB 4 (1993).

Texas|1993

Requires proof of an economically and technologically feasible safer alternative

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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.


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

Tennessee|2011

Prohibits the award of punitive damages against the seller of

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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.


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

Tennessee|2011

Prohibits products liability lawsuits against a retailer unless it exercised

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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.


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

Oklahoma|2013

States that in a product liability action, a manufacturer or

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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.


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Products Liability Reform: HB 1603 (2009).

Oklahoma|2009

Provides that a manufacturer shall not be liable if the

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Provides that a manufacturer shall not be liable if the product is inherently unsafe.


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Challenged and Struck Down

Held unconstitutional by the Oklahoma Supreme Court in Douglas v. Cox Retirement Properties, June 2013.

Product Liability Reform: HB 350 (1996).

Ohio|1996

Amends product liability law to include additional requirements for establishing

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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.


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Challenged and Struck Down

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: HB 1 (1987).

Ohio|1987

Provides that a product’s design is not defective if: (1)

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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.


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Product Liability Reform: SB 2805 (1987).

New Jersey|1987

Provides that a manufacturer or seller of a product is

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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.


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

New Hampshire|1993

Establishes a right of indemnification for New Hampshire manufacturers from

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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.


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Product Liability Reform: HB 1369 (1995).

North Dakota|1995

Establishes a ten‑year statute of repose in product liability actions. 

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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.


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Challenged and Struck Down

The 10‑year statute of repose is unconstitutional. Dickie v. Farmers Union Oil Co., 2000 ND 111 (N.D. May 25, 2000).

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

North Carolina|1995

Limits the award of punitive damages to the greater of

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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).


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Product Liability Reform: SB 380 (1987).

Montana|1987

Provides statutory defenses to product liability claims, including assumption of

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


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

Mississippi|2004

Provides that the seller of a product, other than a

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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.


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Product Liability Reform: HB 1270 (1993).

Mississippi|1993

Requires product liability cases to be based on a design,

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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.


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Product Liability Reform: SB 344 (1995)

Michigan|1995

Bars application of the rule of joint and several liability

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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.


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Unchallenged

Product Liability Reform: LD 346 (1996).

Maine|1996

Provides that “subsequent remedial measures” or steps taken after an

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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.


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Product Liability Reform: SB 684 (1988).

Louisiana|1988

Provides that a product may be unreasonably dangerous only because

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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.


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Product Liability Reform: HB 1741 (1995).

Indiana|1995

Bars application of the rule of joint and several liability

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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.


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Product Liability Reform: HB 20 (1995).

Illinois|1995

Establishes affidavit requirements in product liability cases.  Creates a presumption

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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.


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Challenged and Struck Down

Held unconstitutional by the Illinois Supreme Court in Best v. Taylor Machine Works, Inc., December 1997.

Product Liability Reform: HB 775 (1999)

Florida|1999

Establishes a 12-year statute of repose for products with a

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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.


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Unchallenged

Product Liability Reform: SB 231 (2003).

Colorado|2003

Provides that a product liability action cannot be taken against

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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.


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Product Liability Reform: SB 241 (1986).

California|1986

Confirms that under California law, products like foods high in

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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.


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

Alabama|2011

Known as the Alabama Small Business Protection Act, S.B. 184

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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.


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Product Liability Reform: HB 160 (1994).

Alaska|1994

Provides for a 15-year statute of repose in civil actions

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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.


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