sawstop product liability slides
DESCRIPTION
Classroom discussion powerpoint slides regarding table saw product liability claims that "SawStop" technology makes other table saws defectiveSee, e.g. Osorio v. One World, Technologies, 1st Circuit, 2011TRANSCRIPT
Torts Spring 2014Fordham Law SchoProduct Liability
Saw Stop
George W. ConkAdjunct Professor of Law & Senior Fellow, Stein Center for Law &
EthicsCertified Civil Trial Attorney
Room [email protected]
212-636-7446TortsToday tortstoday.blogspot.com
Otherwise – Commentaries on Law, Language & PoliticsBlackstonetoday.blogspot.com
1Design Defect: SawStop
Design Defect: SawStop 3
Design defect
Conscious design choice Gauging reasonableness of
safety aspects of the product Focus on the product not on
conduct Tests: Consumer expectations Risk-utility analysis
Saw Stop
Is every other saw outmoded, obsolete and defective?
http://www.colbertnation.com/the-colbert-report-videos/408216/february-13-2012/people-who-are-destroying-america---sawstop
Design Defect: SawStop 4
Osorio v. One World
Parties: One World, Ryobi, Home Depot Causes of action: Negligence Breach of implied warranty
Design Defect: SawStop 5
No competitor has licensed Gass’s patented technology
Gass testified they are afraid to
adopt it because it will be an
admission that their products
are unreasonably dangerous
Is that relevant to the design
defect claim? Prejudicial?
Design Defect: SawStop 6
The challenged designThe $179 Ryobi Benchtop rip sawDoes everything have to a Cadillac?
Design Defect: SawStop 7
Categorical liability barred 3rd Restatement
Exception Comment e. Design defects: possibility of
manifestly unreasonable design .…the designs of some products are so
manifestly unreasonable, in that they have low social utility and high degree of danger, that liability should attach even absent proof of a reasonable alternative design…
Why does Ryobi raise this issue? Why is it rejected?
Design Defect: SawStop 8
Saw stop braking system
Gass says 5 milliseconds to stop
blade
How fast is fast enough to be
“reasonably safe”?
Osorio – practical and feasible RAD? Dr. Gass testified that SawStop
technology would add "less than $150" to the price of a table saw
That doubles the price! Replacement brake & blade $100
+/- Why is there none on the
market?
Design Defect: SawStop 11
Osorio – risk-utility Gass: SawStop flesh-detection system
can trigger without having actually been touched by a person, particularly when cutting wet or pressure-treated wood.
Must there be a bypass swtich?
Design Defect: SawStop 12
Osorio – risk-utility Portable saws used by
contractors are sometimes exposed to the elements and rough treatment..increasing chances of a malfunction of the SawStop system.
Design Defect: SawStop 13
Osorio – risk-utility
The parties also disputed
whether a small benchtop saw
like the BTS 15 could properly
absorb the force necessary to
stop a rapidly spinning saw
blade. Design Defect: SawStop 14
Comparative fault - Massachusetts
Not available in implied warranty
action
Osorio jury found him 35% at fault
Osorio was at work. How would you
use that in defense? As plaintiff?
If the employer removed the guard?Design Defect: SawStop 15
Is a guarded blade adequate? CPSC Safety equipment that hinders the
ability to operate the product likely will result in consumers bypassing, avoiding, or discarding the safety equipment.
66,900 table saw operator blade contact injuries in 2007 and 2008
20,700 (30.9%) occurred on table saws where the blade guard was in use. Design Defect: SawStop 17
Limits of blade guards
1) may jam on the leading edge of the workpiece, requiring the consumer to push the workpiece forcefully or to raise the guard manually;
2) Poor visibility 3) Poor splitter alignment 4) Mandatory removal of the blade
guard for certain cuts:
Design Defect: SawStop 18
Barker v. Lull Engineering (CA 1978) – TWO PRONGS
A product is defective in design Consumer expectations (1) the product has failed to perform
as safely as an ordinary consumer would expect when used in an intended or reasonably foreseeable manner, or
Risk-Utility (2) in light of the relevant factors
discussed below, the benefits of the challenged design do not outweigh the risk of danger inherent in such design.
19Design Defect: SawStop
Barker v. Lull Engineering (CA 1978)
Risk/utility test A product may be found defective
in design, even if it satisfies ordinary consumer expectations, if through hindsight the jury determines that the product's design embodies 'excessive preventable danger,' or, in other words, if the jury finds that
the risk of danger inherent in the challenged design outweighs the benefits of such design. 20Design Defect: SawStop
Barker v. Lull Engineering (CA 1978)
The risk-utility factors to determine “strict liability in tort”
(1) the gravity of the danger posed by
the challenged design
(2) the likelihood that such danger
would occur
21Design Defect: SawStop
Barker v. Lull Engineering (CA 1978)
(3) the mechanical feasibility of a safer
alternative design
(4) the financial cost of an improved
design, and
(5) the adverse consequences to the
product and to the consumer that would
result from an alternative design.
22Design Defect: SawStop
Reasonable alternative designfactor or sine qua non?
Plaintiffs lawyers complained and defense lawyers celebrated that the Products Liability Restatement declared proof of a reasonable alternative design a sine qua non, not just a factor to consider.
If to prove defect - as in NJ - jury had to find an alternative safer design change the Osorio verdict?
Design Defect: SawStop 23
The R.A.D.
Must it be on the market? Must it be “light weight and
affordable”? What is the place of consumer
expectations in an R.A.D. case? Can a warning suffice to make the
product “reasonably safe”?
Design Defect: SawStop 24
Product Liability Restatement (3rd): § 2 Categories of Product Defect p. 569
A product:
(a) contains a manufacturing defect
when the product departs from its
intended design even though all
possible care was exercised in the
preparation and marketing of the
product
25Design Defect: SawStop
Product Liability Restatement (3rd): § 2 Categories of Product Defect p. 569 (b) is defective in design when
the foreseeable risks of harm posed by the product could have been reduced or avoided by the adoption of a reasonable alternative design by the seller or other distributor, or a predecessor in the commercial chain of distribution, and the omission of the alternative design renders the product not reasonably safe;
26Design Defect: SawStop
Product Liability Restatement (3rd): § 2 Categories of Product Defect p. 569 (c) is defective because of
inadequate instructions or warnings when the foreseeable risks of harm posed by the product could have been reduced or avoided by the provision of reasonable instructions or warnings by the seller or other distributor, or a predecessor in the commercial chain of distribution, and the omission of the instructions or warnings renders the product not reasonably safe.
27Design Defect: SawStop
Imputed knowledge NY PJI 2:120
It is not necessary to find that
defendant knew or should have
known of the product's potential
for causing injury in order for
you to determine that it was not
reasonably safe.
Design Defect: SawStop 28
Imputed knowledge – NY PJI 2:120 It is sufficient that a reasonable
person who did in fact know of
the product's potential for
causing injury would have
concluded that the product
should not have been marketed
in that condition.Design Defect: SawStop 29
CPSC If CPSC embraces as a standard the
SawStop 5 millisecond stopping time and other specifications proposed by Gass will it constitute an unfair burden on trade by privileging SawStop?
If Gass files patent infringement suits for work arounds will that unfairly burden trade?
Design Defect: SawStop 31
The Gass Petition to C”PSC 1) A detection system capable of
detecting contact or dangerous proximity between a person and the saw blade when the saw blade is -
(a) spinning prior to cutting, (b) cutting natural wood with a
moisture content of up to 50%, (c) cutting glued wood with a
moisture content up to 30%, and (d) spinning down after turning off
the motorDesign Defect: SawStop 32
The Gass Petition to C”PSC 2) A reaction system to perform
some action upon detection of such contact or dangerous proximity, such as stopping or retracting the blade, so that a person will be cut no deeper than 118 of an inch when contacting or approaching the blade at any point above the table and from any direction at a rate of one foot per second;
3) A self-diagnostic capability to verify the functionality of key components of the detection and reaction system; and
Design Defect: SawStop 33