A Catalyst for Safety

By: Mark P. Robinson Jr. and Kevin F. Calcagnie

Robinson, Calcagnie & Robinson

Newport Beach, CA

Product related injuries and deaths in the U.S. have been declining for decades. According to the Consumer Product Safety Commission, since the 1970s there has been a substantial reduction in the rate of deaths and injuries associated with consumer products. Meanwhile, traffic fatalities in the United States have fallen to record lows. Between 1966 and 2004, the fatality rate per million vehicle miles travelled has declined more than 70%. Similarly, NTSB data show deaths for general aviation aircraft dropped from 1.75 per 100,000 flight hours in 1986, to 1.35 by 1998.

There is widespread agreement from experts in a variety of interrelated disciplines that products liability litigation has played a key role in safer products and injury reduction, and that product liability continues to be an important tool for the prevention of injuries, through not only the imposition of monetary damages, but media attention, information gathering, and litigations ability to foster subsequent legislative or regulatory change. According to the Consumer Federation of America, part of the dramatic reduction in accidental injuries and deaths in the United States has been because of product liability.

Industry groups and manufacturing executives have acknowledged that litigation has enhanced product safety by changing the way they do business. Surveys and interviews of corporate executives have shown that many manufacturers have instituted programs specifically for the purpose of reducing liability, including improving quality control, labeling and design, and that many have redesigned products as a result of potential liability. A study by the RAND Corporation in the 1980s found that product liability appears to powerfully influence product design decisions, and that of all the various external social pressure influencing product design decisions, product liability seems to be the most fundamental. While the threat of liability may not be the sole reason behind safety innovations, products liability doctrine promotes safer product containers, safer product handling, and, in particular, safer automobiles and pharmaceuticals.

A 1988 study regarding the impact of products liability litigation, which surveyed 264 chief executive officers of manufacturing companies, revealed that liability experience had caused 1/3 to improve their product lines, 35% to improve the safety of their products, and 47% to improve warnings. In another study involving a survey of over 100 senior level executives, over half of those interviewed indicated that their companies had increased their research and development budgets devoted to product safety, and had added safety features to their products as a result of the threat of liability. Two-thirds indicated that "the principal impact of product liability lawsuits has been to force companies to be more careful with their products, not to limit innovation."

Products liability litigation has also heightened manufacturers' awareness of the importance of safety in their products, and has advanced the safety of not only motor vehicle equipment such as air bags, child car seats, and seat belts, but many other consumer products such as hot water vaporizers, farm machinery and firearms. Aside from encouraging the safe design, manufacture and labeling of newer products, liability litigation has also been a factor in forcing or hastening the removal of unreasonably dangerous products from the market, through voluntary and involuntary withdrawals of products such as defective automobiles and pharmaceuticals, such as flammable pajamas and tampons linked to Toxic Shock Syndrome, as well as the Ford Pinto, which subjected occupants to risk of injury or death from fire due to fuel system compromise in rear end collisions.

From a broader business perspective, there are other reasons for manufacturers to develop safer products, and other incentives beyond avoiding litigation costs and damages awards. Businesses have an economic stake in their reputation and how they are perceived by the public, and in this respect, products liability litigation can have a significant impact on both competitiveness and profitability.

Manufacturers have also come to recognize that safety sells and that improving product safety will ultimately lead to competitive advantage, and many have incorporated product safety into their business and marketing.

Products liability actions also play a vital role in complementing the role of understaffed and underfunded regulatory agencies such as the FDA. Recently, the United States Supreme Court in Wyeth v. Levine, 129 S.Ct. 1187 (2009) noted how tort litigation serves to advance the safety of pharmaceuticals:

"[T]he FDA traditionally regarded state law as a complementary form of drug regulation. The FDA has limited resources to monitor the 11,000 drugs on the marketState tort suits uncover unknown drug hazards and provide incentives for drug manufacturers to disclose safety risks promptly. They also serve a distinct compensatory function that may motivate injured persons to come forward with information. "

The Supreme Court has also said that stated tort suits can serve as a catalyst for regulatory action by aiding in the exposure of new dangers, noting that such information may prompt a manufacturer of a federal agency to decide that a revised label is required. Because of this catalyst effect, and greater access to information, products liability litigation has exposed evidence of unreasonable product risks, leading to greater regulatory oversight in a number of situations where manufacturers had previously resisted disclosure of such information. Examples include asbestos, tobacco products, ultra-absorbent tampons, the Dalkon Shield, ephedra, the sleeping pill Halcion, and the prescription drugs Vioxx and Prozac.

In addition to encouraging manufacturers to produce safer products, and assisting government agencies in their regulation of product safety, products liability litigation has another important role in reducing product related injuries, which is educating the public and increasing awareness. Despite the fact products have become safer, there is a continuing need for increased public awareness of product dangers. According to the CPSC "Each year, 33.1 million people are injured by consumer products in the home. Some hazards are from products the Agency has warned about for years; others come from new products and technologies." Tort litigation encourages and frequently plays a role in the strengthening of warnings accompanying products, alerting consumers, patients and prescribing physicians to potential hazards which may have been unknown or previously undisclosed.

Products liability litigation has been, and continues to be, a significant force influencing positive change, and has encouraged and compelled manufacturers to remove defective products from the market, to develop safer designs and improve quality control, and to provide better warnings to the consumers who use them. At the same it has complemented and provided invaluable assistance to the efforts of regulatory agencies overseeing product safety. Tort litigation involving defective products has increased access by regulators and the public to critical safety information and heightened public awareness of the dangers involved with certain products, which has led to better, stronger regulations, safer new products, and the removal of dangerous products from the market.

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