Standards In Product Liability Litigation

A recent poll of Americans eligible to serve on a jury indicates that three out of four would act on their own beliefs of right and wrong, regardless of legal instructions from a judge. The poll results suggest that when it comes time for jurors to decide what is right or wrong as they weigh concepts of design defect or the adequacy of warnings, jurors may look beyond the personal opinions of the respective experts presented in litigation to an accepted, apparently objective set of norms which preceded the litigation, which will last beyond it and which were not created to serve any particular litigant’s purpose. In short, they may look to applicable product and industry standards.

These potentially “tie breaking” standards can come from a variety of sources. Some of the organizations whose compilations, advisories or recommendations may encompass all or part of the issue are the American National Standards Institute (ANSI), the Occupational Health and Safety Administration (OSHA), the National Safety Council (NSC), the Outdoor Power Equipment Institute (OPEI) and the Technical Advisory Committee of the Pulp and Paper Industry (TAPPI), to name just a few.

Those in the industry, such as clients, or knowledgeable about it, such as experts, are usually in the best position to identify applicable standards. The standards are usually referenced by and presented through the same experts whose opinions the jurors are seeking to transcend.

All those involved, not just product manufacturers, want to become acquainted with the applicable codes and standards regarding the product and the industry long before the adversary or his expert first mentions them. A comprehensive products liability prevention program includes being aware of and keeping abreast of applicable federal, state and local codes. That same responsibility should extend to those standards recognized, accepted and utilized in the industry. Procedures which identify and monitor these areas as well as how product design and production measure against them are basic performance barometers.

Standards are norms or models arrived at by consensus and through process in a sector of business or industry. They are not laws or government regulations, which are mandatory and the violation of which may subject an offender to criminal penalties as well as civil exposure. An ANSI standard, for example, implies a consensus of those substantially concerned with the particular standard’s scope and provisions. It is intended as a guide to aid the manufacturer, consumer and the general public. The existence of an ANSI standard does not in any respect preclude anyone from manufacturing, marketing, purchasing, or using products, processes, or procedures which are not in conformance with the standard.

A New Jersey jury deciding a product liability case will be charged with the authority to consider the standards and customs of the industry in considering whether the defendant breached any duty owed to the plaintiff. If the jury finds that the defendant did not comply with a standard of safety policy or practice which the jury finds to be reflective of the level of care required of a reasonably prudent manufacturer making and selling a reasonably safe product, the jury may find product defect or inadequate warnings, as the case may be, on that basis. The code, standard, or industry practice is not conclusive on the issue but it can be evidential on the care and conduct required. While compliance with the code or standard is not the ultimate question, in answering it a jury may find guidance in the standard or even find the standard itself reflective of the conduct expected or required of the reasonable manufacturer. Though a jury may find a standard irrelevant or meaningless, frequently enough a manufacturer’s failure to meet an appropriate standard can be deemed sufficient evidence to buttress and support a jury finding against a manufacturer. Conversely, compliance with an applicable standard can be as powerful evidence to support a verdict in favor of a manufacturer.

“Sword or Shield?” is the question to be answered with regard to product standards. A prudent participant will have considered the question and determined the answer well before the debate and ultimate resolution by the jury. Given that 75% of potential jurors are willing to ignore the judge’s instructions on the law, manufacturers are advised to appeal to the jury’s sense of right and wrong by appearing as a company which abides by the rules - the standards of the industry.

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