Does The State's Product Liability Law Need Changing? The Proposed Legislation Would Benefit Manufacturers But Would Be Bad For Workers And Consumers.

Posted: May 04, 1989

Imagine that A. H. Robins, maker of the dangerous and defective Dalkon Shield IUD, was able to avoid liability by arguing that an alternative design for its product was too costly and not practical.

Imagine the Ford Motor Co. and other automobile manufacturers able to avoid compensating victims of dangerous cars by arguing that designing safe gas tanks that do not explode under low impact is too costly and not practical.

This is what could happen under a regressive piece of products liability legislation now being considered by the Pennsylvania legislature.

The proposed Pennsylvania Product Liability Act relieves manufacturers from responsibility for the damage and injuries caused by their unsafe products. It restricts and in many cases eliminates the ability of an innocent victim of a dangerous product from seeking compensation in the courts.

Under the bill, a manufacturer cannot be found to have designed a dangerous or defective product if an alternative or safer design costs too much. This provision allows the manufacturer to prove that any other design, although it may have been safer, did not make economic sense.

The bill also unnecessarily limits the manufacturer's liability to injured workers who were exposed to dangerous and unsafe products, but whose injuries do not manifest themselves until many years later. This applies particularly to victims who have been exposed to asbestos products, toxic chemicals, drugs such as DES and medical devices such as the Dalkon Shield IUD.

Under this proposal, the manufacturer of such dangerous products is not responsible for injury or illness if the exposure occurred more than 15 years after the product was distributed. But in most of these exposure cases, an injury does not manifest itself for many years.

Similarly, many machines used in factories and on farms are more than 15 years old and do not contain proper safety devices. Injured workers and farmers would unilaterally lose their rights of fair and adequate compensation if the bill becomes law.

For 20 years in this state, products liability law has focused on the safety of products and provided protection for innocent and injured victims. This proposed legistation would attempt to judge the respective conduct of the parties, rather than the product itself. An injured worker whose hand is severed in a machine that lacks a guard will have his own conduct matched against that of a manufacturer of this unsafe machine.

By changing the focus of a products liability case, there will no longer be an incentive to making safe products. Instead, the manufacturer will be able to blame the consumer for the damage caused by its unsafe product.

If a product is found to be inherently or unavoidably unsafe, a manufacturer could also escape responsibility. The victims of the DPT vaccine and all-terrain vehicles would have little trouble showing that their products are unavoidably unsafe and, therefore, escape responsibility for the foreseeable damage that these drugs and vehicles inflict.

There's another negative aspect to this proposed law. It eliminates the manufacturer's responsibility to warn about dangers of its products which are ''generally known." This provision effectively cancels out one of the major safety accomplishments of products liability law - that is, warnings on products.

So long as the dangers are generally known, there is no need for a manufacturer to place a warning on its product. A manufacturer can put a product on the market like the dangerous Bic lighter that blows up in a child's face and can avoid responsibility by proving that the dangers of lighters are generally known.

One of the driving forces behind this proposed law appears to be the tobacco industry, whose cigarettes cause over 350,000 deaths a year. A provision in the bill would eliminate any potential damage claim for these deaths.

The proposed Pennsylvania Products Liability Act is a direct assault against workers and consumers and would eliminate years of progess in protecting those who are injured by dangerous products.

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