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Foreign Evidence in U.S. Product Liability Law
International
Manufacturers Beware
Foreign Evidence in U.S. Product Liability Law
By Christopher
T. Miller and William Seth Howard
In this global economy
manufacturers are compelled to produce many alternative product lines,
including one intended to comply with American laws and safety standards and
others intended to comply with foreign laws and standards. Recently, plaintiffs in the
United States have attempted to use foreign standards or foreign product models
to prove that (1) reasonable alternative designs existed, (2) a manufacturer
had knowledge of an alternative design or potential defect, (3) a manufacturer
failed to warn the consumer of alternative designs, or (4) a defendant breached
a standard of reasonable care in a negligence claim.
A manufacturer presently has two
arguments to bar this type of evidence.
First, Federal Rule of Evidence 402 provides that “evidence which is not
relevant is not admissible.” Second,
Federal Rule of Evidence 403 precludes admission of evidence that would have a
tendency to confuse or mislead a jury. American courts have
unequivocally and consistently held that foreign design and safety standards
are not admissible because they are not relevant and will have a tendency to
confuse a jury. See Deviner v. Electrolux Motor, 844 F.2d 769, 770 (11th Cir.
1988); In re Baycol Products Litigation, 532 F. Supp. 2d 1029, 1054 (D. Minn. 2007). However, the admissibility of
evidence of a foreign product itself has been another story.
Foreign Product Designs Evidence
Admissibility
Many American courts have admitted evidence of foreign
products with additional safety devices or different designs. Alternative designs sold abroad are usually
admitted to show the feasibility of an alternative design or knowledge of a
defect. For example, in Sherry v.
Massey-Ferguson, Inc., the
defendant manufactured two different tractors; one model with a passenger seat
that was sold in Europe, and an American model without a passenger seat. 1997 U.S. Dist. LEXIS 10752, at *4–5 (W.D. Mich. June 5, 1997). The court
admitted photographs illustrating the alternative tractor designs that were
sold in Europe because “[e]vidence that an alternate tractor design was
in production at the time of the subject tractor’s manufacture unquestionably
is relevant to the feasibility of plaintiff’s design theory.” Id.
at *5. That is, the court believed that
the alternative, foreign design was relevant to prove the feasibility of
alternative designs and to show that the defendant knew of alternative designs. See
also Cantrell v. Hennessy Indus.,
Inc., 829 S.W.2d 875 (Tex. Ct. App. 1992).
In Cantrell v. Hennessy, the
plaintiff used the European model of defendant’s tire-changing machine, which
contained a pressure-limiting device, as evidence that the alternative design
was technically feasible and available years before the allegedly defective
American product was manufactured. Id.
Courts Should Discontinue Admitting
Alternative Foreign Design Evidence
U.S. courts
clearly will not admit foreign standards and laws as evidence but they may
admit evidence of specific products
manufactured for foreign sale. In
attempting to try to exclude the latter, a defendant should assert that the
plaintiff is trying to admit foreign standards, as opposed to alternative
design evidence. That is, a manufacturer
usually creates alternative designs only to meet the requirements of the
foreign laws where it sells the product.
By admitting foreign, alternative designs as evidence, a court, by
default, will also admit evidence of the foreign standards that required those
designs, and the judiciary, in effect, will have supplanted the U.S.
legislative process, essentially holding U.S. manufacturers to the stricter
requirements of foreign jurisdictions.
The
authors recognize that complying with domestic safety standards does not
absolve a manufacturer from liability in most jurisdictions. But, the policy reasons for denying requests
to admit alternative, foreign designs differ from the policy reasons for
allowing evidence of domestically produced alternative designs.
Further, if alternative, foreign designs become the
standard by which manufacturers are judged in U.S. courts, then international
manufacturers would suffer economic
disadvantages. That is, a global
corporation would, persuaded by the threat of litigation, probably think that
it needed to manufacture its goods in compliance with the international
community’s highest safety standard, or at least persuaded by the threat of
litigation, whereas a corporation that manufactured solely for the domestic
market would only need to abide by U.S. law. It would become much easier to show that an
international manufacturer had notice of an alternative design when it designed
its foreign product. Therefore, a corporation manufacturing for
the international market would lose the ability to compete in its domestic
market due to the increased cost burden, which directly bears on the
risk-utility test that most jurisdictions apply.
As long as sovereign nations retain the right to
determine product quality and safety standards, as they well should,
corporations manufacturing in the international market will have continue to
comply with a variety of standards.
Given this fact, “it is manifestly unfair … as
well as an inappropriate usurpation of a foreign court’s proper authority to
decide a matter of local interest, for a court in this country to set a higher
standard of care than is required by the government of the country in which the
product is sold and used.” Harrison v. Wyeth Lab. Div. of Am. Home
Products Corp., 510 F. Supp. 1, 9–10 (E.D. Pa. 1980). That same principal applies to admitting
evidence of alternative, foreign designs in U.S. courts.
