As part of the larger debate regarding the placement of a cap on non-economic (i.e., pain and suffering) damages in medical malpractice cases, a similar suggestion has often followed: allowing the same thing in defective products cases.

To be sure, there is a compelling argument in favor of such a cap: without it, small to mid-size businesses that are importers, distributors or other middlemen in the chain of distribution of any consumer product would face the prospect of liability for significant damages if any downstream consumer was badly injured by a product - one that they didn't even manufacture. (This is to say nothing of the additional quality control costs that would necessarily be assumed by these middlemen in order to avoid the prospect of such a liability).

In my view, the other side of the coin is more compelling, and here's why: a cursory review of the product recalls issued over the past year confirms that well over 90% of these products are made overseas, in territories well beyond the jurisdictional reach of any injured end user of the products. As a result, the only ones who can exert any pressure at all on these manufacturers to make their products safer are those domestic companies who deal directly with the upstream distributors, and ultimately, the manufacturers themselves.

Perhaps I'm overly cynical, but here's my take in a nutshell: Medicine is a necessity; unsafe toys and consumer products are not. And the absence of a cap in these cases is the best disincentive, or insurance policy, we have against the importation of dangerous and insufficiently tested products.

Jonathan Cooper
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Non-Compete, Trade Secret and School Negligence Lawyer
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