International Manufacturers Beware: Foreign Evidence in American Products Liability Law
One benefit of globalization is that businesses and people can more easily sell their goods and services in the world market. In the context of manufacturing, companies who export products to foreign countries are frequently required to modify their product lines to conform to foreign laws and standards. In some instances, manufacturers are compelled to produce two alternative products—one intended for domestic sale and the other for international. These alternative product designs, manufactured to comply with diverse safety requirements, may have direct repercussions to manufacturers in American courts related to products liability lawsuits.
In order to prove a design defect in products liability law, most jurisdictions in the United States rely on a risk-utility test as enunciated in the Restatement (Third) of Torts. The risk-utility test balances the degree of risk a certain design poses to consumers versus the utility of that design. Plaintiffs must prove that there are reasonable substitute designs for a product, and the risk imposed on the consumer outweighs any utility of the allegedly defective design.
Recently, plaintiffs in the United States have attempted to use foreign laws and standards and foreign product models to prove that: (1) reasonable alternative designs existed, (2) a manufacturer had knowledge of a defect, (3) a manufacturer failed to warn the consumer, and/or (4) the defendant breached a standard of reasonable care. There are two key tactics that plaintiffs engage to use foreign evidence in products liability lawsuits. First, plaintiffs have attempted to use foreign design safety standards and laws. Second, plaintiffs have sought to admit evidence that a manufacturer designed the same product differently in a foreign market.
1. Inadmissibility of Foreign Laws, Standards, and Statistics
American courts have unambiguously held that foreign design and safety standards are not admissible because they are not relevant and will have a tendency to confuse a jury. For example, in Deviner v. Electrolux Motor, a Swedish company manufactured a chain saw without a chain brake. 844 F.2d 769, 770 (11th Cir. 1988). At the time, Swedish law required a chain brake; however, American law did not. Id. at 771. Therefore, Electrolux manufactured two chain saw models; one intended for American consumption and one for Swedish. Id. The plaintiff sought to admit evidence that Sweden had passed a law in 1978 requiring chain saw brakes, which statistically identified a decline in chain saw related accidents following implementation of the 1978 law. Id. at 773. In a motion in limine, the district court held that the Swedish law and statistics should not be admitted since they would confuse the jury who already had a highly technical issue before them. Id. Upon review, the appellate court affirmed the district court’s ruling, allowing it broad discretion in admitting or excluding evidence. Id. at 774.
Further, American courts have consistently refused to admit foreign product safety laws and standards as evidence. For example, in In re Baycol Products Litigation, a Minnesota federal district court denied admission of an expert’s testimony concerning regulatory actions in foreign countries. 532 F. Supp.2d 1029, 1054 (D. Minn. 2007). The plaintiff argued that the expert testimony would demonstrate that the defendant had notice of a pharmaceutical drug’s dangerous side effects, as opposed to evidence that defendants violated foreign law. Id. The court denied the admission of this testimony and held that evidence relating to foreign standards would likely confuse the jury. Id.
2. Admissibility of Evidence of Other Product Designs
Although American courts have consistently rejected the admissibility of foreign design and safety laws, many courts have allowed the admission of foreign alternative products designed with additional safety devices or designs. Alternative designs sold abroad have been admitted to show the feasibility of an alternative design, knowledge of a defect, failure to warn of a defect, or to set a standard of care.
For example, a Texas court has admitted evidence of foreign products to show feasibility of an alternative design. Cantrell v. Hennessy Ind., Inc., 829 S.W.2d 875, 877 (Tex. App. 1992), cert. denied, 508 U.S. 912 (1993). In Cantrell, plaintiff argued that a pressure-limiting device installed in its European tire-changing machine would have made the American model safer. Id. The plaintiff used the European model as evidence that the alternative design was technically feasible and available years before the allegedly defective American product was manufactured. Id. Further, the Texas court held that the determination of whether alternative, safer designs existed is an issue of fact reserved for the trier of fact, rather than being resolved during pretrial discovery. Id. Therefore, the court held that evidence of the actual use or availability of practical, safer alternatives was relevant and admissible. Id.
3. Concluding Thoughts
It is clear that foreign standards and law will not be admissible in American courts because they are not relevant and they tend to confuse a jury. It is also apparent that evidence of specific products manufactured for foreign sale with different designs or safety devices can be admitted because they are relevant to identify feasible alternative designs, knowledge of defects, or failure to warn of a defect.
American manufactures should not be held accountable to foreign laws in American courts. A perverse result occurs if foreign law is the standard manufacturers are held to in American products liability suits involving goods manufactured and distributed solely domestically. International manufacturers would be at a severe economic disadvantage if they were required, or at least persuaded by the threat of litigation, to manufacture all of their goods at the highest safety level required by any foreign law. Whereas a solely domestic manufacturer would only need to abide by U.S. law, an international manufacturer of the same product would be held to a higher, foreign standard. The result would be an international manufacturer priced out of its domestic market because of the increased costs associated with increased safety standards required of all its products.