For The Defense, October 2010 - DRI Today

T H I N K G L O B A L LYInternational Manufacturers BewareForeign Evidence in U.S.Product Liability LawBy Christopher T. Miller and William Seth Howardn Christopher T. Miller is a partner with SmithAmundsen LLC in its Chicago officeand vice chair of the firm’s Product Liability Group. He is an experienced trial lawyer,and his practice focuses on product liability and construction litigation. WilliamSeth Howard is an associate in SmithAmundsen LLC’s Chicago office wherehis practice focus is product liability, construction litigation and corporate/businessservices. He is a member of DRI’s International Law and Product Liability Committees.Scott Blake, a law clerk with SmithAmundsen LLC, assisted in the preparationof this article. Think Globally, continued on pagestandard by which manufacturers are judged in U.S.8480 n For The Defense n October 2010In this global economy manufacturers are compelledto produce many alternative product lines, includingone intended to comply with American laws andsafety standards and others intended to comply withforeign laws and standards. Recently, plaintiffs in theUnited States have attempted to use foreign standardsor foreign product models to prove that (1) reasonablealternative designs existed, (2) a manufacturer hadknowledge of an alternative design or potential defect,(3) a manufacturer failed to warn the consumer of alternativedesigns, or (4) a defendant breached a standard ofreasonable care in a negligence claim.A manufacturer presently has two arguments to barthis type of evidence. First, Federal Rule of Evidence402 provides that “evidence which is not relevant is notadmissible.” Second, Federal Rule of Evidence 403 precludesadmission of evidence that would have a tendencyto confuse or mislead a jury. American courts have unequivocallyand consistently held that foreign design andsafety standards are not admissible because they are notrelevant and will have a tendency to confuse a jury. SeeDeviner v. Electrolux Motor, 844 F.2d 769, 770 (11th Cir.1988); In re Baycol Products Litigation, 532 F. Supp. 2d1029, 1054 (D. Minn. 2007). However, the admissibility ofevidence of a foreign product itself has been another story.Foreign Product Designs Evidence AdmissibilityMany American courts have admitted evidence of foreignproducts with additional safety devices or differentdesigns. Alternative designs sold abroad are usuallyadmitted to show the feasibility of an alternative designor knowledge of a defect. For example, in Sherry v.Massey- Ferguson, Inc., the defendant manufactured twodifferent tractors; one model with a passenger seat thatwas sold in Europe, and an American model withouta passenger seat. 1997 U.S. Dist. LEXIS 10752, at *4–5(W.D. Mich. June 5, 1997). The court admitted photographsillustrating the alternative tractor designs thatwere sold in Europe because “[e]vi dence that an alternatetractor design was in production at the time of thesubject tractor’s manufacture unquestionably is relevantto the feasibility of plaintiff’s design theory.” Id. at*5. That is, the court believed that the alternative, foreigndesign was relevant to prove the feasibility of alternativedesigns and to show that the defendant knew ofalternative designs. See also Cantrell v. Hennessy Indus.,Inc., 829 S.W.2d 875 (Tex. Ct. App. 1992). In Cantrellv. Hennessy, the plaintiff used the European model ofdefendant’s tire- changing machine, which contained apressure- limiting device, as evidence that the alternativedesign was technically feasible and available yearsbefore the allegedly defective American product wasmanufactured. Id.Courts Should Discontinue AdmittingAlternative Foreign Design EvidenceU.S. courts clearly will not admit foreign standards andlaws as evidence but they may admit evidence of specificproducts manufactured for foreign sale. In attemptingto try to exclude the latter, a defendant should assertthat the plaintiff is trying to admit foreign standards, asopposed to alternative design evidence. That is, a manufacturerusually creates alternative designs only to meetthe requirements of the foreign laws where it sells theproduct. By admitting foreign, alternative designs as evidence,a court, by default, will also admit evidence of theforeign standards that required those designs, and thejudiciary, in effect, will have supplanted the U.S. legislativeprocess, essentially holding U.S. manufacturers tothe stricter requirements of foreign jurisdictions.The authors recognize that complying with domesticsafety standards does not absolve a manufacturer fromliability in most jurisdictions. But, the policy reasons fordenying requests to admit alternative, foreign designsdiffer from the policy reasons for allowing evidence ofdomestically produced alternative designs.Further, if alternative, foreign designs become the