Regardless of what your company makes, you face risk from safety-related issues. That’s because where man meets machine, you face hazards.
Understand Common Principles and Trends
Product liability law is local, and the law can vary from country to country (in New Zealand it’s banned altogether) and from state to state (California law is different than Texas law, for example).
Even within one jurisdiction, the application of the law can vary. Product liability cases often involve emotional or political reactions from judges or juries that can lead to unpredictable results.
What You Need to Know
Generally, actions taken after an accident to prevent future potential accidents cannot be used against you as an admission of a defect.
This legal theory is called a "subsequent remedial measures." The reason for this approach is because the law encourages manufacturers to constantly improve their products to make them safer.
Evidence of any subsequent remedial measure may be admissible only for the purposes of proving ownership of the product or the feasibility of an alternative design.
In product liability law, the “product” is not just what was manufactured or sold to an end customer. Items like your sales brochures, service agreements, manuals, and labels can increase your litigation risk and should be reviewed by qualified professionals.
Tips for Changing Product Designs or Warnings
If you are changing a product design:
- Finish “to-do” lists (do not leave anything undone)
- Address suggestions from users and designers
- Explain design changes. Document legitimate reasons and identify safety disadvantages and adverse effects on utility
- Stay away from cost as a reason to (or not to) modify
- Don’t send an email when a brief meeting or conversation will do. E-mails, text messages, and instant messages are easily searched and found for litigation, yet they often are ill-considered, poorly-reasoned correspondence and have a long “nuclear half-life” in the absence of a document retention policy. A conversation/meeting is also a more time-efficient option for busy business professionals
Your Words Matter
How you document design changes is important. When you’re writing about product design and safety issues, assume every document you draft will be read to a jury.
Make the document tell your story. Use words that speak well of both the old and the new, phrases like:
- Enhanced/improved utility and/or safety (versus ‘fix a defect’)
- Addresses product misuse (versus documenting hazards)
- Incorporates new technology or science
What You Should Do in a Global Market
Because there often is no one single set of rules – and rules have wide variation in how they are applied – follow all applicable standards including regulatory standards incorporated into the law and non-governmental but highly respected industry standards.
No lawyer can point to a single “rule” or statute and predict with certainty that doing any one thing will protect you from liability. All cases are viewed through 20-20 hindsight. The only time a case arises is after someone/something has already been harmed. So: just do the right thing.
To guard against risks, a consensus among safety professionals has identified the following hierarchy of actions:
- Identify and eliminate the hazard and/or risk
- Apply safeguarding technologies
- Use warning signs
- Train and instruct
- Prescribe personal protection equipment
Although the law has a variety of tests or theories that it uses to determine whether product manufacturers have done enough, if you can show you followed these five steps, it will improve your defense of any potential future claim.