A Modest Proposal: Abolish Strict Liability

As I prepare to leave for Las Vegas to attend the annual DRI Products Liability Conference, I have been thinking about the current state of products liability law in the United States. As everyone knows, our current products liability law consists of separate laws – including a myriad of statutes, codes and case law – in every state, some of which conflict and some of which overlap, supplemented by various federal laws, rules and regulations. As a result of this conflicting system, U.S. products manufacturers face increasingly complex and expensive litigation which has expanded exponentially over the years. With a couple of possible exceptions, one would be hard-pressed to find an area of litigation that has become more expensive than products liability.

There is also no question that manufacturers who produce products for use in the United States are the most regulated, legislated and litigated industry in the world. The question is whether there is too much regulation and litigation and, if so, what can and/or should be done to ease this burden so as to ensure that U.S. products manufacturers can compete in the global economy. It is obvious that relief is needed. We have all read the news and it is not good. Jobs are being lost daily, the United States industrial and manufacturing community is shrinking rapidly, if not dying, and products manufacturers face substantial litigation exposure and expense, all of which makes it extremely difficult for them to compete.

This burden needs to be substantially reduced. So what to do? Some would say the answer is to take products liability law out of the hands of the states and place it under the control of the federal government in the name of uniformity and consistency. God forbid that this occur. While allowing states to generally control products law does lead to some problems and inconsistencies, the federal government has done nothing worthwhile in the legislative arena in the last several decades and what it has done generally creates more problems than it solves. The current health care fiasco will, I believe, prove this point conclusively. That legislation will most assuredly lead us down the path of substantially higher health care costs, increased taxes and decreased quality of care. Turning control of the health care system in America over to the likes of Congress, including congressmen who are afraid Guam might tip over, and whoever might be in the White House at any given moment is a terrible idea and allowing it to take over products liability law would be just as bad, if not worse.

Another, and I would submit, much more appropriate remedy is to abolish the doctrine of strict liability. Strict liability laws were introduced at a time when products manufacturers needed regulating. These laws have clearly served their purpose of requiring U.S. manufacturers to make the safest products in the world. That they do so is really without question. To coin a phrase – planes, trains and automobiles – as well as toys, food, electronics, pharmaceutical products, medical devices, you name it – if it is designed and manufactured to be sold here, it is the safest product in the world. However, the doctrine of strict liability is no longer used to ensure reasonable safety; rather, it has gone beyond reasonableness to the point where a degree of “defensive design and manufacturing” akin to the concept of defensive medicine, is required. This has driven up costs, both on the design and manufacturing side as well as the back-end cost of defending litigation involving strict liability claims.

Assuming this to be the case, one answer is to do away with strict liability laws. Would doing so result in manufacturers suddenly abandoning the concept of making safe products? I think not. Would it result in a multitude of defective products being dumped into the marketplace? I think not. Would it result in manufacturers being able to make sensible decisions in designing and manufacturing products without having to worry about the concept of “defensive design and manufacturing,” thus lowering costs? I think so. Would it result in fewer frivolous claims being filed and litigation costs being driven down substantially? I think so. Is this a bad thing? Absolutely not!

Let me hasten to say that I do not believe that manufacturers should be insulated from liability where they are negligent and/or grossly negligent in connection with the design or manufacture of products. If they are negligent and they cause harm, they should pay reasonable actual damages. If they are reckless and consciously indifferent in their conduct, they should be liable for reasonable punitive damages. However, should they be liable after having used all due and reasonable care in the design and manufacturing process simply because some paid expert somewhere says that he or she thinks the product is defective or unreasonably dangerous? It seems to me that the time for that cause of action has come and gone.

As society changes, laws which, when enacted, fulfilled a valid and societal purpose become unnecessary. It is no longer necessary for us to legislate the manufacture and use of buggy whips. Times change, and the need for laws change, as well. Has the time to do away with the concept of strict liability arrived? I think so.

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