Defendants in product liability and other complex personal injury cases often point to their compliance with government regulations or industry standards as a key to their defense. Under Maine law, breach of a law, regulation, or formal standard is evidence of negligence to be considered with other evidence in the case.
The defendant may argue that sauce for the goose is sauce for the gander, and compliance with these same regulations or standards proves lack of negligence. Jury research shows that jurors place significant weight on such evidence. In other words, “how can ABC Company be liable for millions of dollars when it did everything the government told it to do?” Implicit in this defense argument is the message that laws, regulations, and formal standards are drafted after months or years of research and testing by a consensus of experts wiser, more knowledgeable, and more experienced than the jury or even the plaintiff’s experts.
A successful plaintiff’s case gives jurors both the information and motivation necessary to deliver a verdict holding defendants accountable for their choices to put profit over safety. This article addresses legal arguments helpful for attacking their “compliance” defense.
One strategy is to move in limine to block admission of any evidence about the law, regulation, or standard, and the defendant’s compliance with it, on grounds of irrelevance. For instance, the standard may not address the particular reason a product failed and caused injury. American National Standards Institute (ANSI) standards for fiberglass ladders focus on the strength and durability of the flat section of ladder rails—not the strength of rail corners. However, the strength of rail corners is crucial to ladder
performance and poses numerous technical challenges during the manufacturing process. Proof that a ladder user was injured by failure of a rail corner may be grounds to exclude evidence the manufacturer met ANSI standards for rail strength.1
Outdated or Obsolete Standards and Lack of Scientific Basis
Compliance with a regulation or standard is irrelevant when there is no scientific basis for the standard, or it is so outdated it fails to take into account newer materials, newer measuring and testing methods, or newer uses of the product. For example, Federal Motor Vehicle Safety Standard (FMVSS) 207, which governs the amount of load an automobile seatback should be able to withstand without deformation of the frame, is not based on any scientific evidence that meeting its foot-pound load requirement protects occupant safety.
The industry has abandoned this standard, and most auto manufacturers now test modern seats to at least double the FMVSS 207 requirements. To the extent a defendant’s expert relies on compliance with obsolete or unfounded standards such as FMVSS 207, a Daubert challenge to this testimony should focus on exposing the lack of science to support such standards.
Actual Knowledge of Risk
Even when a defendant’s compliance with law, regulation, or standards is admissible, countervailing evidence can help the jury put this into context. For instance, when a defendant company has met DOT regulations governing its driveway, jurors believe the company can reasonably assume the driveway poses no danger to its customers. Based on jury research, it seems that jurors rely on the notice function of a law, regulation, or standard. In other words, if a defendant has complied with the standard, it has no notice of any danger. But if the company has learned of several collisions caused by customers exiting the driveway located at a blind corner, this changes the analysis.
Promises, Promises, Promises
The promises that a defendant makes in its advertising, warranties, statements, and submissions to government regulators and elsewhere can be powerful evidence—evidence the defendant is aware of the risks associated with its product or business and holds itself to a higher standard than that imposed by law or regulation. Extensive discovery of a defendant’s communications in these areas can be worth the time and effort involved.
Ultimately, when a defendant has met applicable laws, regulations, or industry standards, and this evidence is admissible, success depends on educating the fact finder about the tort standard for negligence as well as its purpose. A defendant can be negligent without doing something “illegal.” As Justice Learned Hand held in the T.J. Hooper case read by many law school students, a defendant’s failure to equip its tugboat with two-way radios can be negligent, even though no other tugboat at the time had adopted this technology.
Proper jury instructions are important, with an emphasis on the Dongo v. Banks rule that safety statutes, regulations, and standards must be considered in the context of other evidence, such as the defendant’s actual knowledge of safety risks, its promises and representations about safety, and the limited relevance or validity of the standards in question.
1 I would like to acknowledge and thank retired Berman & Simmons Attorney John Sedgwick for sharing his extensive knowledge on this and other subjects in product liability litigation.