Product Safety and Liability
PRODUCT SAFETY AND LIABILITY
As people become increasingly dependent on the use of engineered products, product safety and liability become issues of worldwide importance. In many countries, however, there are no strong traditions promoting safety standards in the technical design and testing of consumer products, nor are there methods of legal redress when such standards are not met. The ethics of product safety and liability is thus reasonably addressed by treating the United States as a leading case study, with the inclusion of some supplementary references to related developments in other countries. It is also necessary to acknowledge the role of product safety standards in relation to global trade practices.
According to figures from the Internet site of the U.S. Consumer Product Safety Commission (CPSC), consumer products are annually responsible for more than 22,000 deaths and 29 million injuries (more than two deaths and 3,000 injuries per hour) at a total annual cost (including property damage) of more than $700 billion. Although the magnitude of these numbers may be subject to argument, they support the contention that product-related injuries were the primary factor in deaths of people from ages one to thirty-six, exceeding deaths from cancer and heart disease (Andre and Velasquez 1991). Staggering as such numbers are, product safety has significantly increased over the past three decades: "The CPSC's work to ensure the safety of consumer products—such as toys, cribs, power tools, cigarette lighters, and household chemicals—contributed significantly to the 30 percent decline in the rate of deaths and injuries associated with consumer products over the past 30 years" (CPSC).
Just as Rachel Carson's Silent Spring (1962) marked the beginning of the modern popular environmental movement, the publication of Ralph Nader's Unsafe at Any Speed (1965), which documented the neglect of safety features in the design of the Chevrolet Corvair and other U.S. automobiles, launched the contemporary consumer product safety movement. Nader influenced a number of federal laws concerned with public health and safety, including the National Traffic and Motor Vehicle Safety Act (1966), the Consumer Product Safety Act (1972), and the Freedom of Information Act (1966), as well as numerous not for profit consumer rights organizations.
In the intervening years, a succession of highly publicized product safety cases has fueled public interest in the topic including those concerning the Ford Pinto (1970s), the Dalkon Shield Intrauterine Device (1970s–1980s), the Bjork/Shiley heart valve (1979–1986), the Therac-25 radiation therapy machine (1985–1987), the Ford/Firestone tire recalls (2000), the health risks attributed to smoking, numerous airline crashes, and, perhaps the most spectacular product failure of all, the space shuttle Challenger (1986). Product safety is now promoted by many governmental and nongovernmental organizations including national product safety testing and certification organizations such as the Underwriters Laboratories (founded 1894) in the United States; the International Organization for Standardization (ISO, founded 1946); consumer groups such as the Consumers Union (founded 1936), publishers of the popular magazine Consumer Reports; and socially conscious investment groups such as the Calvert Fund (created 1990). The Worldwide System for Conformity Testing and Certification of Electrical Equipment (IECEE), maintained by The International Electrotechnical Commission (IEC) (founded 1906), includes a code of ethics for product safety certification programs.
Product Safety, Liability, and Engineering Ethics
During the same period as the Carson and Nader books, professional engineering societies began to take more seriously the role of engineers and the engineering profession as stewards of product safety. All contemporary codes of engineering ethics state that engineers have a responsibility to protect the public safety, health, and welfare, and most codes state that this duty should be held paramount.
The notion that safety is of primary importance in engineering is also fundamental to nearly all academic treatments of engineering ethics (Herkert 2000). A key concept is the notion of professional responsibility, which many ethicists characterize as a type of moral responsibility arising from special knowledge possessed by an individual (Whitbeck 1998). Philosopher Mike Martin and engineer Roland Schinzinger argue that professional responsibility in engineering involves "the creation of useful and safe technological products while respecting the autonomy of clients and the public, especially in matters of risk-taking" (Martin and Schinzinger 1996, p. 42).
Yet while product safety is central to discussions of engineering ethics, the closely related legal concept of product liability is often ignored, or even attacked by engineering professionals and others. "Developing from the Industrial Revolution, U.S. product liability law is derived from case law and restatements of law anchored in contract and tort. It is based on the belief that consumers need protection from business and that business should bear the costs of harms inflicted on consumers" (Product Liability Lawyer Resource Center Internet site). Over time, the legal standard regarding product liability has evolved from the doctrine of let the buyer beware, to a legal theory requiring a determination of negligence on the part of the manufacturer, to the modern legal standard of strict liability (liability imposed without fault). Product liability claims can be based on manufacturing defects, design defects, and information defects (lack of appropriate warnings).
Judgments in product liability cases can include both compensatory (reimbursement for costs) and punitive damages; large judgments have often been the focus of attention in the controversy over product liability, especially in cases when the judgment may seem out of proportion to the harm. In one notorious case, a jury awarded a woman nearly $3 million for burns she received when she spilled coffee purchased at a McDonald's drive-up window.
Critics of current product liability law, including many professional engineering societies, call for rollbacks often approaching the old let the buyer beware policies. For example, in 1996 Congress passed legislation that would have severely limited the effect of product liability litigation by placing a cap on punitive damages and enacting stricter requirements for holding manufacturers liable. President Bill Clinton vetoed the bill; however, the debate over product liability reform continued.
The proponents of product liability reform argue that the current system unjustly rewards plaintiffs and stifles technological innovation, resulting in a lack of competitiveness on the part of U.S. manufacturers and decreased product safety. Supporters of the current system counter that it generally works as intended in discouraging the manufacture of defective products and compensating people injured by such defects (Hunziker and Jones 1994). To some the debate over product liability reform is a classic business/consumer conflict. A New York Times editorial (1996), for example, described proposed legislation as "The Anti-Consumer Act of 1996." Despite the arguments of both sides, the evidence is mixed concerning whether product liability rewards result in improvements in product safety (Hunziker and Jones 1994).
Engineers and engineering societies have tended to side with the proponents of product liability reform (Herkert 2001, 2003). A vice president of engineering of a major U.S. automobile company, for example, has argued that product liability restricts engineering practice by inhibiting innovation, discouraging critical evaluation of safety features, and preventing implementation of new or improved designs (Castaing 1994). The 1998 position statement on product liability of IEEE-USA, a unit of the Institute of Electrical and Electronics Engineers (IEEE) concerned with professional issues in the United States, calls for stringent limits on product liability including holding the manufacturer blameless when existing standards are met, adequate warnings are provided, or the product is misused or altered by the user. Other engineering societies, such as ASME International (formerly the American Society of Mechanical Engineers) have also actively supported product liability reform (ASME International 2001).
Given the primary responsibility of engineers for public safety, health, and welfare stated in the codes of ethics, it is surprising that the product liability issue has not drawn more attention from the perspective of engineering ethics (Herkert 2001, 2003). There is little, if any, evidence, however, to suggest that engineering societies promoting changes in the product liability system have considered the effect that decreasing the impact of product liability would have from the point of view of engineering ethics. On the whole, the engineering community has paid little attention to the ethical implications of product liability. For example, a major study of product liability and innovation by the National Academy of Engineering (Hunziker and Jones 1994), which considered such issues as corporate practice, insurance, regulation, and the role of scientific and technical information in the courtroom, touched only briefly on ethics (in a chapter on the need to address public risk perceptions) (Fischhoff and Merz 1994). Even the ethics literature is equivocal on the issue of product liability. For example, one well-known essay on engineering responsibility in the Ford Pinto case advocated stronger regulation and fines and imprisonment for corporate officials to achieve desired levels of safety, giving only passing notice to the role of product liability litigation (DeGeorge 1981).
One aspect of product liability and calls for its reform that can be readily identified as an ethical issue is the notion of standard of care (Kardon 1999). Though usually considered in a legal context, the standard of care in engineering design is also important in considering the ethical responsibilities of engineers. Many discussions of product liability turn on the concept of standard of care. Examples include such classic engineering ethics cases as the Turkish Airlines DC-10 disaster, where some blamed the luggage handlers for failing to secure the poorly designed cargo door, and the McDonald's coffee case, where public (and engineering) opinion generally held the product's user responsible for the accident. In such attitudes there is an assumption that the user should be held to a standard of care in use of a product equivalent to the standard of care applied to designers and manufacturers in its creation.
The McDonald's Coffee Case
Observers often tend to blame the victim in accidents of this kind. Such cases, however, are rarely that clear cut, as Howard Twiggs notes when commenting on the McDonald's case:
That case demonstrates how well our system works. Unfortunately, headlines and misrepresentations by civil justice's opponents misshaped public opinion about [the] case against McDonald's. The public was led to believe that a woman driving a car was holding a cup of McDonald's coffee between her knees, spilled it, burned herself, and hired a trial lawyer who conned a jury into awarding her $2.86 million. (Twiggs 1997, p. 9)
Included among the facts of the case as cited by Twiggs to buttress his point were the following:
- The accident occurred in a parked car.
- The coffee was served scalding hot (180 –190 F), which can cause third-degree burns in seven seconds; this is 40–50 degrees hotter than normal coffee service. The victim suffered third-degree burns over 6 percent of her body.
- McDonald's had earlier reports of more than 700 people, including infants, being burned by its coffee.
- The victim attempted to settle out of court for $20,000 in medical bills.
- The jury awarded $200,000 for actual damages, which they reduced to $160,000 because they found the victim partly at fault.
- The jury based its award of $2.7 million in punitive damages on two days of coffee sales by McDonald's.
- The trial judge reduced the punitive damages to three times actual damages ($480,000) and ordered postverdict mediation where the case was settled.
- Despite telling the jury at trial that they would not do so, McDonald's immediately stopped selling coffee at this temperature.
Lessons for Engineering Design
On the face of it, the assumption that the victim is to blame in such instances undermines the notion that professionals have ethical responsibilities that go beyond those of nonprofessionals. A counter example more in tune with notions of professional responsibility would be an engineering designer who attempts to foresee preventable harm to users by anticipating common forms of product misuse, a doctrine sometimes applied in legal rulings concerning standard of care (Kardon 1999).
Roger Boisjoly (1998), the renowned whistle-blowing engineer in the Challenger case, argues that design engineers do have the obligation to anticipate product safety problems, even in so-called instances of product misuse. Following his blacklisting in the aerospace industry, Boisjoly became a consultant specializing in forensic engineering. As a forensic engineer, he became involved with product safety cases that included defective trigger lock switches on handheld drills, unstable step stools, and tipping problems in common household stoves; in most cases the products had met applicable regulatory standards. Boisjoly testified in two cases involving stove-tipping accidents; in one an adult and in the other a child leaned on open oven doors and were scalded with hot food being prepared on the stove's burners. Similar to the McDonald's case, the manufacturers had been provided ample evidence of the defect by prior complaints and litigation. As part of his investigation, Boisjoly, in about two weeks, designed an inexpensive collapsible door hinge that solved the problem. As Boisjoly demonstrates, ensuring product safety involves more than meeting engineering standards and avoiding liability—an engineer's professional obligation to protect public safety includes anticipating safety hazards and where possible designing the hazards out of the system.
While political concerns over product safety and liability in the United States continue to focus on the relative responsibility of manufacturers and consumers, additional issues are prevalent in the rest of the world. In Europe debate is centered on needed harmonization of product safety standards both within the European Community and with respect to other nations, most notably the United States. Such concerns are primarily motivated by a desire to lower trade barriers but they also have important product safety implications because safety issues and standards can vary from country to country (Mader and Krøigaard 1999). In the developing world, as in so many other aspects of technological development, the outlook for product safety is much worse. An article calling for establishment of a consumer product safety commission of India points out safety and health problems with the entire range of consumer products, including unprocessed or improperly packaged food, unsafe rail transport, and dangerous toys and other hazards that lack child-proofing (Desikan 1999). Such inequities will continue in the absence of enforcement of national product safety standards and until fair and effective international standards are developed and recognized.
JOSEPH R. HERKERT
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