SawStop Product Liability Slides

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

mailto:[email protected]

The State of the art

The # 1 selling cabinet saw

Design Defect: SawStop 2


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


Osorio v. One World

Parties: One World, Ryobi, Home Depot Causes of action: Negligence Breach of implied warranty


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?


The challenged designThe $179 Ryobi Benchtop rip sawDoes everything have to a Cadillac?


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?


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?


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?


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.


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:


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.


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


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



(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.


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?


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”?


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


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;


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.


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.


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

Proposed Rulemaking

CPSC


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?


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


The Gass Petition to C”PSC 4) An interlock system so that power

cannot be applied to the motor if a fault interfering

with the functionality of a key component in the detection or reaction system is detected.


SawStop Product Liability Slides

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Transcript of SawStop Product Liability Slides