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Published online by Cambridge University Press: 24 February 2021
In Beshada v. Johns-Manville Products Corp., the Supreme Court of New Jersey held that a state of the art defense is unavailable in cases brought under a theory of strict liability for failure to warn. The court indicated that asbestos producers may be held liable for their products' harms even if the health hazards of asbestos were unknown and not discoverable when the products were marketed. In a subsequent case, the New Jersey court held that state of the art evidence is relevant to whether a product is defective. This Case Comment examines these different uses of knowledge evidence in the disposition of products liability cases. It contends that manufacturers should not be held liable for unknowable risks. The Comment concludes that the state of the art defense establishes a logical limit on strict liability and promotes efficient resolution of products liability claims.
1 3 L. Frumer & M. Friedman, Products Liability § 34C (1983).
2 Birnbaum 8c Wrubel, Industrywide Liability in Toxic Substances Litigation, in Special Problems in Toxic Substances Litigation After Manville 1983 at 127, 130 (S. Birnbaum & R. Phelan eds. 1983) [hereinafter cited as Toxic Substances Litigation].
3 See, e.g., Selikoff, , Hammond, & Seidman, , Mortality Experience of Insulation Workers in the United States and Canada, 1943-1976, 330 Ann. N.Y. Acad. Sci. 91 (1979)CrossRefGoogle Scholar. Asbestosis is “a non-malignant scarring of the lungs“; and mesothelioma is “a rare cancer of the lining of the chest, the pleura, or the lining of the abdomen, the peritoneum.” Gordy-Gray, 4A Attorney's Textbook of Medicine A 205C.72 (1981), cited in Beshada v. Johns-Manville Prods. Corp., 90 N.J. 191, 197, 447 A.2d 539, 542 (1982). Exposure to asbestos causes these and other often fatal respiratory diseases. I. Selikoff & D. Lee, Asbestos and Disease (1978); Becklake, , Asbestos-related Diseases of the Lungs and Pleura, 126 Amer. Rev. Resp. Diseases 187 (1982)Google Scholar; Hammond, , Selikoff, & Seidman, , Asbestos Exposure, Cigarette Smoking and Death Rates, 330 Ann. N.Y. Acad. Sci. 473 (1979)CrossRefGoogle Scholar; Sedur-Walker, , Regional Lung Functions in Asbestos Workers: Observations and Speculations, 43 Respiration 8 (1982)CrossRefGoogle Scholar; Selikoff, , Biological Effects of Asbestos, 330 Ann. N.Y. Acad. Sci. 1 (1979)Google Scholar.
4 Occupational Health Hazards Compensation Act of 1982: Hearings Before the Subcomm. on Labor Standards of the Comm. on Education and Labor on H.R. 5725, 97th Cong., 2d Sess. (1982) (testimony of Irving J. Selikoff, M.D.).
5 McGovern, , Management of Multiparty Toxic Tort Litigation: Case Law and Trends Affecting Case Management, 19 Forum 1, 2 (1983)Google Scholar.
6 E. Ariens, A. Simomis & J. offermeier, Introduction to General Toxicology 6 (1976).
7 See infra note 47 and accompanying text.
8 See Borel v. Fibreboard Prods. Corp., 493 F.2d 1076, 1083 n.4 (5th Cir. 1973), cert, denied, 419 U.S. 869 (1974) (failure to warn—asbestos) (citing, e.g., Cooke, , Fibrosis of the Lungs Due to Inhalation of Asbestos Dust, 2 Brit. Med. J. 147 (1924)CrossRefGoogle Scholar); Lanza, Asbestosis, 18 J. A.M.A. 368(1936).
9 See, e.g., Beshada v. Johns-Manville Prods. Corp., 90 N.J. 191, 197, 447 A.2d 537, 542 (1982). Manufacturers first placed warning labels on asbestos products in the mid-1960's. Mehaffy, , Asbestos-Related Lung Disease, 16 Forum 341, 345 (1980)Google Scholar. Correspondence among industry officials tends to show awareness of these asbestos hazards as early as the 1930's. Correspondence between Sumner Simpson, president of Raybestos-Manhattan, and Asbestos Magazine, in Toxic Substances Litigation, supra note 2, at 335-38.
10 90 N.J. 191, 447 A.2d 539 (1982).
11 Id. at 196, 447 A.2d at 542.
12 See infra notes 45-53 and accompanying text.
13 “Knowledge evidence” includes evidence of what a manufacturer knew or shouldhave known about a product's risks when it was marketed and evidence about subsequently discovered risks that could not have been discovered at the time of manufacture. See infra note 43 and accompanying text.
14 90 N.J. at 205, 447 A.2d at 547. Throughout this Comment, the term “strict liability” refers only to the doctrine dealing with product-related injuries.
15 94 N.J. 169, 463 A.2d 298 (1983).
16 Id. at 176,463 A.2d at 301.
17 Wade, , On The Nature of Strict Tort Liability for Products, 44 Miss. L.J. 825, 826 (1973)Google Scholar. Thirty-seven states have adopted the Restatement (Second) of Torts § 402A (1965) as a blueprint for the application of strict liability. See Freund v. Cellofilm Properties, Inc., 87 N.J. 229, 249-51, 432 A.2d 925, 935-36 (1981) (Clifford, J., concurring) (failure to warn—nitrocellulose) (catalog of cases in various jurisdictions embracing § 402A). Nine other jurisdictions apply strict liability in some other form. [1980] 1 Prod. Liab. Rep. (CCH) H 4016, at 4024-25.
The justification for strict liability has been said to be that the seller, by marketing his product for use and consumption, has undertaken and assumed a special responsibility toward any member of the consuming public who may be injured by it, that the public has a right to and does expect, in the case of products which it needs and for which it is forced to rely upon the seller, that reputable sellers will stand behind their goods; that public policy demands that the burden of accidental injuries caused by products intended for consumption be placed upon those who market them, and be treated as a cost of production against which liability insurance can be obtained, and that the consumer of such products is entitled to the maximum of protection at the hands of someone, and the proper persons to afford it are those who do market the products.
Restatement (Second) of Torts § 402A comment c (1965). See generally Wade,supra note 17, at 826; Montgomery, & Owen, , Reflections on the Theory and Administration of Strict Tort Liability for Defective Products, 27 S.C.L. Rev. 803 (1976)Google Scholar.
19 E.g., Barker v. Lull Eng'g Co., 20 Cal. 3d 413, 573 P.2d 443, 143 Cal. Rptr. 225 (1978) (design defect—high-lift loader) (strict liability designed to relieve plaintiffs of the “onerous burdens inherent in a negligence cause of action“); see also infra notes 31-37 and accompanying text.
20 E.g., Caterpillar Tractor Co. v. Beck, 593 P.2d 871, 877 (Alaska 1979) (design defect— front-end loader); Phillips v. Kimwood Mach. Co., 269 Or. 485, 503-04, 525 P.2d 1033, 1041-42 (1974) (design defect, inadequate warnings—sanding machine). Contra Henderson, , Product Liability and the Passage of Time: The Imprisonment of Corporate Rationality, 58 N.Y.U. L. Rev. 765, 766 (1983)Google Scholar (imposition of liability for dangerous products is counterproductive).
21 E.g., Birnbaum, Unmasking the Test for Design Defect: From Negligence \To Warranty] to Strict Liability to Negligence, 33 Vand. L. Rev. 593, 596 & n.18 (1980); Calabresi, & Hirschoff, , Towarda Test for Strict Liability in Torts, 81 Yale L.J. 1055 (1972)CrossRefGoogle Scholar; Wade.supra note 17, at 826; see also Owen, , Rethinking the Policies of Strict Products Liability, 33 Vand. L. Rev. 681, 710 (1980)Google Scholar.
The risk-spreading rationale for strict liability has come under fire in recent years. A defendant's risk-spreading ability has nothing to do with whether there is anything wrong with the fnanufacturer's product or his conduct. E.g., Hiilsen, Design Liability and State of the Art: The United States and Europe at a Crossroads, bb St. John's L. Rev. 450, 482-83 (1981); Epstein, Products Liability: The Search for the Middle Ground, 56 N.C.L. Rev. 643, 659-60 (1978); Klemme, , The Enterprise Liability Theory of Torts, 47 Colo. L. Rev. 153 (1976)Google Scholar.
Strict liability also serves the traditional tort goal of compensating injured parties. Under no theory of tort law, however, is compensation alone considered a sufficient basis for imposing liability:
An award is not to be made unless there exists some reason other than the mere need of the victim for compensation. Otherwise, the award will be an arbitrary shifting of loss from one person to another at a net loss to society due to the economic and social costs of adjudication.
W. Keeton & J. O'Connell, Basic Protection for the Traffic Victim 242 (196b), quoted in Birnbaum, supra, at 601.
22 Restatement (Second) of Torts § 402A (1965). A product is defective when it is “unreasonably dangerous for its intended use.” Id. Courts make this determination by examining ordinary consumer expectations or weighing the products’ risks and benefits. Id. at comment i.
23 See, e.g., Adler, , Strict Products Liability: The Implied Warranty of Safety, and Negligence With Hindsight, As Tests of Defect, 2 HofSTRAL. Rev. 581 (1974)Google Scholar ; Hoenig, , Product Designs and Strict Tort Liability: Is There a Better Approach? 8 Sw. U.L. Rev. 109 (1976)Google Scholar; Montgomery, & Owen, , supra note 18; Vandall, “Design Defect” in Products Liability: Rethinking Negligence and Strict Liability, 43 Ohiost. L.J. 61 (1982)Google Scholar.
24 Barker v. Lull Eng'g Co., 20 Cal. 3d 413, 432-33, 573 P.2d 443, 455-56, 143 Cal. Rptr. 225, 237-38 (1972); see also Caterpillar Tractor Co. v. Beck, 593 P.2d 871, 886 (Alaska 1979). But risk-benefit analysis provides defendants little basis for predicting whether or not they will be held liable. Epstein, supra note 21, at 650. But see W. Keeton, D. Owen & J. Montgomery, Products Liability and Safety 240 (1980):
While economic efficiency may not be precisely optimized through liability determinations based upon risk-benefit analysis, the test may well achieve a roughly efficient allocation of resources by discouraging manufacturers from marketing products in conditions which generate more accident costs than social utility.
See generally Calabresi, , Some Thoughts on Risk Distribution and the Law of Torts, 70 Yale L.J. 499 (1961)CrossRefGoogle Scholar; Keeton, , Products Liability—Liability Without Fault and the Requirement of a Defect, 41 Tex. L. Rev. 855 (1963)Google Scholar; Shapo, A Representational Theory of Consumer Protection: Doctrine, Function & f Legal Liability for Product Disappointment, 60 Va. L. Rev. 1109 (1974).
25 The Wade factors are:
(1) The usefulness and desirability of the product—its utility to the user and to the public as a whole.
(2) The safety aspects of the product—the likelihood that it will cause injury, and the probable seriousness of the injury.
(3) The availability of a substitute product which would meet the same need and not be as unsafe.
(4) The manufacturer's ability to eliminate the unsafe character of the product without impairing its usefulness or making it too expensive to maintain its utility.
(5) The user's ability to avoid danger by the exercise of care in the use of the product.
(6) The user's anticipated awareness of the dangers inherent in the product and their avoidability, because of general public knowledge of the obvious condition of the product, or of the existence of suitable warnings or instructions.
(7) The feasibility, on the part of the manufacturer, of spreading the loss by setting the price of the product or carrying liability insurance.
Wade, jupra note 17, at 837-38 (emphasis added). Compare Cepeda v. Cumberland Eng'g Co., 76 NJ. 152, 173-75, 386 A.2d 816, 826-27 (1978) (design defect—plastic pelletizing machine) (judge should alert jury to Wade factors “for which there is specific proof in the case and especial significance… .“) and U.S. Dep't of Commerce, Model Uniform Products Liability Act (hereinafter cited as Mupla), analysis of § 104,44 Fed. Reg. H 62,723 (1979) (factors) without additional guidance leave juries “at sea“) with Turner v. General Motors Corp., 584 S.W.2d 844, 851 (Tex. 1979) (design defect—auto crashworthiness) (trial judge may not supply jury with specific Wade factors to consider in applying risk-utility test). Dean Wade eschews the Restatement's “consumer expectations” test because “[i]n many situations, particularly involving design matters, the consumer would not know what to expect, because he would have no idea how safe the product could be made.” Wade, supra note 17, at 829. 2eCepeda, 76 N.J. at 174, 386 A.2d at 827 (citing Wade, supra note 17, at 839-40). Other jurisdictions utilize this variation as well. See, e.g., Atkins v. American Motors Co., 335 So. 2d 134, 141 (Ala. 1976) (design defect—automobile); Roach v. Kononen, 269 Or. 457, 525 P.2d 125, 128-29 (1974) (design defect—automobile); Phillips v. Kimwood Mach. Co., 269 Or. 485, 493-94, 525 P.2d 1033, 1036-37 (1974).
27 In reaching this result, courts rely upon the Restatement (Second) of Torts:
Unavoidably unsafe products. There are some products which, in the present state of human knowledge, are quite incapable of being made safe for their intended and ordinary use. These are especially common in the field of drugs … . The seller of such products, again with the qualification that they are properly prepared and marketed, and proper warning is given, where the situation calls for it, is not to be held to strict liability for unfortunate consequences attending their use.
Restatement (Second) of Torts § 402A comment k (1965). See, e.g., Brochu v. Ortho Pharm. Corp., 642 F.2d 652, 656-57 (1st Cir. 1981) (design defect, failure to warn—oral contraceptive); Werner v. Upjohn Co., 628 F.2d 848, 858 (4th Cir. 1980) (failure to warn—antibiotic); Reyes v. Wyeth Labs., 498 F.2d 1264, 1274-75 (5th Cir. 1974), cert, denied, 419 U.S. 1096 (1974) (failure to warn—polio vaccine). See also Mupla § 106, 44 Fed. Reg. at 62,727; R. Epstein, Modern Products Liability 150 (1980).
Asbestos may be a comment k product. Borel v. Fibreboard Paper Prods. Corp., 493 F.2d 1076, 1088 (5th Cir. 1973), cert, denied, 419 U.S. 869 (1974) (failure to warn—asbestos). But comment k does not apply when the defendant was not aware of the existence of a risk. Needham v. White Laboratories, Inc., 639 F.2d 394, 402 (7th Cir. 1981) (failure to warn— dienestrol); see generally Willig, , The Comment k Character: A Conceptual Barrier to Strict Liability, 29 Mercer L. Rev. 544 (1978)Google Scholar.
28 See Caterpillar Tractor Co. v. Beck, 593 P.2d 871, 879 (Alaska 1979) (“Strict liability will not impose legal responsibility simply because a product causes harm.“). See also Henderson, Manufacturer's Liability for Defective Design: A Proposed Statutory Reform, 56 N.C.L. Rev. 625, 634-35 (1978); Owen, supra note 21, at 682.
29 See infra notes 42-43 and accompanying text.
30 See infra notes 44-45 and accompanying text. 31 Birnbaum, supra note 21, at 596. Prior to adopting strict liability, judges had relaxed certain threshold requirements in negligence in order to accommodate notions of fairness. For example, though a plaintiff in negligence ordinarily bears the burden of proving that the defendant's negligence caused the harm, courts frequently employ res ipsa loqitur to create a rebuttable presumption. W. Prosser, Handbook of the Law of Torts §§ 40, 230 (4th ed. 1971). But see Escola v. Coca-Cola Bottling Co., 24 Cal. 2d 453, 463, 150 P.2d 436, 441 (1944) (Traynor, J., concurring) (negligence action—exploding beverage bottle) (“It is needlessly circuitous to make negligence the basis of recovery and impose what is in reality liability without negligence. If public policy demands that a manufacturer of goods be responsible for their quality regardless of negligence there is no reason not to fix that responsibility openly.“).
32 See generally W. Prosser, supra note 31, at § 30. The extent of the duty is determined by reference either to standards of reasonable conduct governing similarly-situated individuals or firms or to a comparison of the costs of accident prevention with the likelihood and magnitude of the harm./d.; Posner, , Theory of Negligence, 1 J. Legal Stud. 29, 32 (1972)CrossRefGoogle Scholar. The trier of fact must find that the defendant could have foreseen that his product would cause harm. MacPherson v. Buick Motor Co., 217 N.Y. 382, 111 N.E. 1050 (1916) (negligent design—automobile wheel); Moran v. Faberge, Inc., 273 Md. 538, 332 A.2d 11 (1974) (failure to warn—inflammable cologne).
33 Escola v. Coca-Cola Bottling Co., 24 Cal. 2d 453, 462-63, 150 P.2d 436, 441 (1944) (Traynor, J., concurring); see also Birnbaum, supra note 21, at 595-96.
34 Wade, , Strict Tort Liability for Manufacturers, 19 Sw. L.J. 5, 25 (1965)Google Scholar (plaintiff need not prove that defendant negligently created the product or was aware of its unsafe condition).
35 2 L. Frumer & M. Friedman, supra note 1, at § 16A[4][f][iv][V]; Casrell v. Altec Industries, Inc., 335 So. 2d 128, 132 (Ala. 1976) (design defect—truck) (“[W]e hold scienter is supplied as a matter of law, and there is no need to prove its existence as a matter of fact.“); Freund v. Cellofilm Properties, Inc., 87 N.J. 229, 239, 432 A.2d 925, 930 (1981); Roach v. Kononen, 269 Or. 457, 465, 525 P.2d 125, 129 (1974); Newman v. Utility Trailer & Equipment Co., 278 Or, 395, 397, 564 P.2d 674, 675-76 (1977) (design defect—semitrailer):
[T]he essential difference between a negligence action and a [strict] products liability action is that in negligence the foreseeability of the harm by the manufacturer or seller is submitted as a question of fact to the jury, whereas in strict liability the knowledge of the article's propensity to inflict harm as it did is assumed regardless of whether the manufacturer or seller foresaw or reasonably should have foreseen the danger.
See also Berkebile v. Brantly Helicopter Corp., 462 Pa. 83, 101-02, 337 A.2d 893, 902 (1975) (design defect—helicopter).
Dean Wade would impute to the defendant only that knowledge available at the time of sale. Wade, , On the Effect in Products Liability of Knowledge Unavailable Prior to Marketing, 58 N.Y.U. L. Rev. 734, 760 (1983)Google Scholar; see, e.g., Boatland of Houston, Inc. v. Bailey, 609 S.W.2d 743 (Tex. 1980) (design defect—motorboat kill switch); Phillips v. Kimwood Mach. Co., 269 Or. 485, 493, 525 P.2d 1033, 1037 (1974) (“The question of whether the design is unreasonably dangerous can be determined only by taking into consideration the surrounding circumstances and knowledge at the time the article was sold … .“) (emphasis added). Professor Keeton would impute knowledge of hazards available at the time of trial. Keeton, , Product Liability and the Meaning of Defect, 5 St. Mary's L.J. 30, 38 (1973)Google Scholar.
Despite the application of strict liability in asbestos litigation, many proof problems and other complications remain. Plaintiffs have enormous difficulty proving that asbestos exposure caused their injuries because of the considerable lapse of time between exposure and the manifestation of disease. See Levy, The Manville Bankruptcy—Its Effect on the Asbestos Industry, in Toxic Substances Litigation, supra note 2, at 11. Plaintiffs are also unable to avoid litigating the knowledge issue in every case. Though Borel v. Fibreboard Prods. Corp., 493 F.2d 1076 (5th Cir. 1973), cert, denied, 419 U.S. 869 (1976) held that asbestos producers knew about the asbestos hazards early in this century, courts have refused to give collateral estoppel effect to this holding. Migues v. Fibreboard Corp., 662 F.2d 1182 (5th Cir. 1982) (failure to warn— asbestos); see also Miller v.Johns-Manville Sales Corp., 338 F. Supp. 631 (D. Kan. 1982) (failure to warn—asbestos); McCarthy v. Johns-Manville Sales Corp., 502 F. Supp. 335 (S.D. Miss. 1980) (failure to warn—asbestos).
36 “[P]olicy issues become very important and t he [Wade factors] must be collected and very carefully weighed [by the court] … in deciding whether to submit the case to the jury.” Wade, supra note 17, at 838-39; seealso Suterv. San Angelo Foundry & Mach. Co., 81 N.J. 150, 172, 406 A.2d 140, 151 (1979) (design defect—sheet metal rolling machine):
[I]t is the function of the court to decide whether the manufacturer has the duty and obligation imposed by the strict liability principle. As in tort law generally, determination of existence of a duty depends upon a balancing of the nature of the risk, t he public interest and t he nature of the parties … . THE question is ultimately one of public policy, the answer being dependent upon a consideration of all relevant factors to decide what is fair and just.
37 Judges in negligence cases must determine the existence of a duty and the applicable standard, and make sure that the evidence is sufficient to support the jury's finding. W. Prosser, supra note 31, at § 37.
38 See, e.g., Caterpillar Tractor Co. v. Beck, 593 P.2d 871, 884 (Alaska 1979) (risk of confusing juries with negligence terms); Cronin v. J.B.E. Olson Corp., 8 Cal. 3d 121, 131-35, 501 P.2d 1153, 1161-63, 104 Cal. Rptr. 433,441-43 (1972) (design defect—truck) (purged the Restatements “unreasonably dangerous” terminology); Azzarello v. Black Bros. Co., 480 Pa. 547, 558, 391 A.2d 1020, 1026 (1978) (design defect—coating machine) (excluding “unreasonably dangerous” formulation from jury instructions); Freund v. Cellofilm Properties, Inc., 87 N.J. 229, 243, 432 A.2d 925, 932 (1981) (jury instructions were reversible error because “terminology employed by the trial judge was riddled with references to negligence, knowledge and reasonable care on the part of a manufacturer“). But see Suter, 81 N.J. at 162, 406 A.2d at 146 (“the notion of fault is readily seen to be inherent in the concept of strict liability“).
Many judges assert that the distinction between the theories is appropriate because strict eviliability focuses on “the condition of the product, not on the conduct of the defendant.” Dougherty v. Hooker Chem. Corp., 540 F.2d 174, 177 (3d Cir. 1976) (failure to warn— solvent) (quoting Jackson v. Coast Paint & Lacquer Co., 499 F.2d 809, 812 (9th Cir. 1977)). But this characterization fails to meaningfully distinguish the theories. In the view of some scholars, the effort to distinguish negligence from strict liability is not a worthwhile preoccupation. Professor Birnbaum calls it “semantic gymnastics.” Birnbaum, supra note 21, at 601; see also Mupla, Analysis of § 104,44 Fed. Reg. at 62,722 (“In the course of this struggle, courts appear to have drifted away from rationales for imposing liability and toward verbal formulae that attempt to distinguish between negligence and strict liability.“); Werner v. Upjohn Co., 628 F.2d 848, 857-58 (4th Cir. 1980):
The reasoning behind this asserted distinction [between negligence and strict liability] we believe to be hypertechnical, for the suit is against the manufacturer and not against the product… . The distinction … lessens considerably in failure to warn cases since it is clear that strict liability adds little in warning cases. Under a negligence theory the issue is whether the defendant exercised due care in formulating and updating the warning, while under a strict liability theory the issue is whether the lack of a proper warning made the product unreasonably dangerous… . The standard for liability under strict liability and negligence is essentially the same… .
39 Phillips, 269 Or. at 493, 525 P.2d at 1037; see also Roach v. Kononen, 269 Or. 457, 465, 525 P.2d 125, 129 (1973).
40 Brady v. Melody Homes Mfr., 121 Ariz. 253, 589 P.2d 896 (1979) (design defectmobile home); 2 L. Frumer & M. Friedman,supra note 1, at § 16A[4][f][iv]; Phillips, 269 Or. at 498, 525 P.2d at 1039.
41 Phillips, 269 Or. at 493, 525 P.2d at 1037 (negligence has contributed “familiar terms and thought processes with whicji courts, lawyers and jurors customarily deal“); J. Beasley, Products Liability and the Unreasonably Dangerous Requirement 61-62 (1980) (“The reasonableness concept is so engrained in the thinking of practitioners in the field of torts that even the greatest scholars have for the most part been unable to excise it from their thoughts entirely when turning their attention to strict liability in tort.“).
42 See supra note 28 and accompanying text.
43 “State of the art” is
the level of pertinent scientific and technical knowledge existing at the time … . The term “meaningful knowledge” must include all available data pertinent to the problem, regardless of its source. It cannot be restricted to that obtained by a particular industry or group, but must include applicable data obtained by other industries or disciplines, or in research laboratories. The only limitation should be the availability of the knowledge. If it is in published form and accessible to research workers through technical libraries, or similar sources, it must be considered as being available.
1 L. Frumer & M. Friedman, supra note 1, at § 6.05[15]. “State of the art” may refer to scientific undiscoverability as well as to the technological unfeasibility of making a product safer. MUPLA avoids this ambiguous term, but provides an affirmative defense based on the absence of a “practical technological feasibility” of making the product safer with respect to designs and warnings. Mupla, Analysis of § 107, 44 Fed. Reg. at 62,729; see generally Spradley, , Defensive Use of State of the Art Evidence in Strict Products Liability, 67 Minn. L. Rev. 343 (1982)Google Scholar; Robb, A Practical Approach to the Use of State of the Art Evidence in Strict Liability Cases, 77 Nw. U.L. Rev. 1, 20 (1982).
44 Though these uses of knowledge evidence limit the defendant's potential exposure to liability, they have the corresponding effect of expanding the knowledge inquiry, making the disposition process less certain and more costly. See infra notes 107-08 and accompanying text.
45 There are two types of affirmative defenses. Certain affirmative defenses, based on statutes of limitation and repose, reflect a legislative policy of permitting redress only for timely claims and bar liability for claims that have become “stale.” Other recognized defenses, such as contributory and comparative negligence, assumption of risk, and product misuse, reflect judicial and legislative reluctance to impose liability where the plaintiff's conduct helped cause the injury, or where the plaintiff was in a superior position to avoid the harm and failed to do so. See Greenman v. Yuba Power Prods., 59 Cal. 2d 57, 63, 377 P.2d 897, 901, 27 Cal. Rptr. 697, 701 (1963) (Traynor, J.) (shifting accident losses to manufacturers only when the injured parties are “powerless to protect themselves“). In raising a state of the art defense, the defendant is not claiming that the plaintiff was in a superior position to avoid the harm, but that the defendant was in no position to protect against it.
A number of states have enacted statutes providing for a state of the art defense. See, e.g., Ariz. Rev. Stat. § 12-683 (West Supp. 1983); Colo. Stat. § 13-21-403(1) (Supp. 1983) (rebuttable presumption of no defect); Neb. Rev. Stat. § 25-21,182 (1979); N.H. Rev. Stat. Ann. § 507-D:4 (1983) (held invalid in Heath v. Sears, Roebuck & Co., 123 N.H. 512,464 A.2d 288 (1983) because of constitutional infirmities in other portions of the statute); UTAH CODE Ann. 78-15-6 (1977) (no defect if conformity with government standards). See generally Weinberger, The State of the Art and Products Liability, 28 Def. L.J. 303, 329-30 (1979); Note, Products Liability Reform Proposals: The State of the Art Defense, 43 Alb. L. Rev. 941 (1979).
46 The state of the art defense is derived from the negligence concept of foreseeability. Though foreseeability is not an element of the plaintiff's prima facie case in a strict liability action, many judges are loathe to impose liability in its absence. See infra notes 47-53 and accompanying text. Some judges and commentators have argued that affirmative defenses derived from negligence have no place in the application of a doctrine which does not focus on a defendant's conduct. See, e.g., Daly v. General Motors Corp., 20 Cal. 3d 725, 575 P.2d 1162, 144 Cal. Rptr. 380 (1978) (design defect—automobile). However, the Restatement (Second) of Torts explicitly recognizes such defenses. See, e.g., Restatement (Second) of Torts § 402A comments h, j, g & n (1965). See generally Noel, , Defective Products: Abnormal Use, Contributory Negligence and Assumption of Risk, 25 Vand. L. Rev. 93 (1972)Google Scholar; J. Beasley, supra note41, at ch. 19; Preiser, , Defenses in Strict Tort Liability Actions, 5 Am. J. Trial Ad. 485 (1982)Google Scholar.
47 E.g., Needham v. White Labs., Inc., 639 F.2d 394, 400 (7th Cir. 1981); Karjala v. Johns-Manville Prods. Corp., 523 F.2d 155, 158 (8th Cir. 1975) (applying Minn, law) (failure to warn—asbestos) (warning only required if harm is actually or constructively known).
48 493 F.2d 1076 (5th Cir. 1973), cert, denied, 419 U.S. 869 (1974).
49 Id. at 1086; see also Bertrand v. Johns-Manville Sales Corp., 529 F. Supp. 539, 544 (D. Minn. 1982) (“[t]his proposition is so firmly entrenched in the medical and legal literature that it is not subject to serious dispute“); Hardy v. Johns-Manville Sales Corp., 509 F. Supp.4352, 1355 (E.D. Tex. 1981) (“[k]nowledge of the danger can be attributed to the industry as early as themid-1930's…“), quoted in Beshada, 90 N.J. at 197, 447 A.2d at 542; Nealv. Carey Canadian Mines, 548 F. Supp. 357 (E.D. Pa. 1982).
50 Borel, 493 F.2d at 1088.
51 79 111. 2d 26, 402 N.E.2d 194 (1980) (failure to warn—drug's unknown side effects).
52 Id. at 33, 402 N.E.2d at 197. The Illinois court found support for its “present state of knowledge” limitation in comment j following Restatement section 402A, which suggests that a manufacturer is required to warn of a product's danger “if he has knowledge, or by the application of reasonable, developed human skill and foresight should have knowledge,” of the risk of harm. Id. at 32, 402 N.E.2d at 197 (quoting Restatement (Second) of Torts §402A comment j (1965)).
53 79 111. 2d at 37, 402 N.E.2d at 199. The dissent in Woodill disputed the majority's view:
The majority's assertion that removal of the knowledge element would make the manufacturer the virtual insurer of the product is an overstatement. In my view, the manufacturer is not made an insurer when it is held answerable for injuries to someone for whom the product is intended, who uses it in the manner in which it was intended to be used, and whose injuries were proximately caused by an inherent danger in the product of which the user was unaware.
Id. at 43, 402 N.E.2d at 202 (Moran, J., dissenting). The dissent also argued that the comment language on which the majority relied should not control because it conflicts with the text of the Restatement itself, which contemplates the imposition of liability even though “the seller has exercised all possible care in the preparation and sale of his product.” Id. at 39, 402 N.E.2d at 200, (quoting Restatement (Second) of Torts § 402A (1965)).
See also Robbins v. Farmers Union Grain Terminal Assoc, 552 F.2d 788, 794 n.5 (8th Cir. 1977) (South Dakota law) (failure to warn—feed supplement).
54 See, e.g., Reed v. Tiffin Motor Homes, Inc., 697 F.2d 1192 (4th Cir. 1982) (design defect—motor home); Bruce v. Martin-Marietta Corp., 544 F.2d 442 (10th Cir. 1976) (design defect—airplane); Heritage v. Pioneer Brokerage & Sales Inc., 604 P.2d 1059, 1063-64 (Alaska 1979) (design defect—mobile home) (jury may properly consider “scientific knowability” of unsafe character of product); Balido v. Improved Mach., Inc., 29 Cal. App. 3d 633, 640, 105 Cal. Rptr. 890, 895 (1973) (design defect—plastic molding press) (In defective design cases, strict liability and negligence merge and “unreasonableness of the danger must necessarily be derived from the state of the art at the time of design.“); Kerns v. Engelke, 76 111. 2d 154, 164, 390 N.E.2d 859, 864 (1979) (design defect—forage blower) (“[N]o duty … to manufacture the .product with a different design, if the different design is not feasible. Feasibility includes not only elements of economy, effectiveness and practicality, but also technological possibilities under the state of the manufacturing art at the time the product was produced.“); Tretter v. Johns-Manville Corp., 88 F.R.D. 329, 333 (E.D. Mo. 1980) (failure to warn—asbestos); Boatland of Houston, Inc. v. Bailey, 609 S.W.2d 743 (Tex. 1980) (state of the art evidence admissible to rebut evidence of feasible design alternative). See also Mupla, Analysis of § 104, 44 Fed. Reg. at 62,729:
Compliance with standards that are rigorous and objective (in that they were developed through careful, thorough product testing and a formal product evaluation, and up-to-date in light of the technological and scientific knowledge reasonably available at the time the product was manufactured) suggests that the product was not defective.
This use of knowledge evidence is not without its critics. Some judges consider such evidence relevant in negligence but not in strict liability. Smith v. Minster Mach. Co., 669 F.2d 628 (10th Cir. 1982) (design defect—punch press); Holloway v. J. B. Systems, Ltd., 609 F.2d 1069 (3d Cir. 1979) (design defect—vacuum tank); Hamilton v. Hardy, 37 Colo. App. 375,549 P.2d 1099 (1976); Little v. PPG Industries, 19 Wash. App. 812, 579 P.2d 940, modified 92 Wash. 2d 118, 594 P.2d 911 (1979) (failure to warn—cleaning solvent); Haugen v. Minnesota Mining & Mfg. Co., 15 Wash. App. 379, 550 P.2d 71 (1976) (failure to warn—grinding disc). See also McClellan, Strict Liability for Drug Induced Injuries: An Excursion Through the Maze of Products Liability, Negligence and Absolute Liability, 25 Wayne L. Rev. 1,31 (1978) (making foreseeability a component of the duty to warn cause of action “denfies] strict liability an independent viability“). The foreseeability limitation is also difficult to reconcile with § 402A(2)(A) (imposing liability although “the seller has exercised all possible care in the preparation and sale of his product …“). Professor Henderson argues that jurors are ill-equipped to step into the shoes of engineers and evaluate conflicting evidence on the issue of whether the manufacturer could have made a safer product. Henderson, , yurfiaa, , Review of Manufacturers’ Conscious Design Choice: The Limits of Adjudication, 73 Colum. L. Rev. 1531, 1558 (1973)CrossRefGoogle Scholar. Not only are jurors incompetent to perform this task, but the inquiry flies in the face of the admonition that strict liability does not require manufacturers to produce products that are absolutely safe. See supra note 28.
55 544 F.2d 442 (10th Cir. 1976).
56 Id. at 447.
57 Id.
58 90 N.J. 191, 447 A.2d 539 (1982).
59 Id. at 197-98, 447 A.2d at 542-43.
60 Id.
61 See supra notes 45-53 and accompanying text.
62 90 N.J. at 197, 447 A.2d at 542.
63 Id. at 198-99, 447 A.2d at 543. The plaintiffs argued that Freund v. Cellofilra Properties, Inc., 87 N.J. 229, 432 A.2d 925 (1981), which imputed knowledge of a product's dangers to defendants under strict liability, applied to the present case. The defendants claimed that Freund imputed only “existing knowledge, the technical knowledge available at the time of manufacture.” 90 N.J. at 199, 447 A.2d at 543.
64 90 N.J. at 199, 447 A.2d at 543.
65 Id. The Appellate Division denied the plaintiffs’ motion for leave to appeal the trial judge's ruling, but the Supreme Court granted leave to appeal the Appellate Division's order.
66 Id. at 196, 447 A.2d at 542.
67 Id. at 197, 447 A.2d at 542.
69 Id. at 199-202, 447 A.2d at 544-45.
70 Id. at 199, 447 A.2d at 544 (quoting Suter v. San Angelo Foundry & Mach. Co., 81 N.J. 150, 169, 406 A.2d 140, 149 (1979)).
71 90 N.J. at 200, 447 A.2d at 544 (quoting Freund, 87 N.J. at 238 n. l, 432 A.2d at 925 n.l).
72 90 N.J. at 201, 447 A.2d at 545.
73 Id. at 202,447 A.2d at 545. But see Wade, supra note 17, at 842 (“[s]ome products may be so inherently dangerous that they should not be marketed at all, whether with or without a warning“).
74 90 NJ. at 202, 447 A.2d at 545.
75 Id. at 202, 447 A.2d at 545 (quoting Freund, 87 NJ. at 239, 432 A.2d at 930).
76 Id. at 204-05, 447 A.2d at 546-47. Accord Flatt v. Johns-Manville Sales Corp., 488 F. Supp. 836, 841-42 (E.D. Tex. 1980) (failure to warn—asbestos) (“Regardless of what was reasonably foreseeable to the defendants at the time of manufacture, asbestos products should have been accompanied by adequate warnings; the nature of this strict liability action made the defendants’ state of knowledge at the time of manufacture irrelevant.“).
77 90 NJ. at 205, 447 A.2d at 547.
78 Id. at 204, 447 A.2d at 546. Accord Dougherty v. Hooker Chem. Corp., 540 F.2d 174, 177 (3d Cir. 1976) (quotingjackson v. Coast Paint & Lacquer Co., 499 F.2d 809, 812 (9th Cir. 1974))(“It is the unreasonableness of the condition of the product, not the conduct of the defendant, that creates liability.“).
79 90 NJ. at 204, 447 A.2d at 546.
Essentially [the] state-of-the-art [defense] is a negligence defense. It seeks to explain why defendants are not culpable for failing to provide a warning. [Defendants] assert, in effect, that because they could not have known the product was dangerous, they acted reasonably in marketing it without a warning. But in strict liability cases, culpability is irrelevant. The product was unsafe. That it was unsafe because of the state of technology does not change the fact that it was unsafe. Strict liability focuses on the product, not the fault of the manufacturer.
Id.
81 “Juries might mistakenly translate the confused concept of state-of-the-art into a simple question of whether it was defendants’ fault that they did not know of the hazards of asbestos. But that would be negligence, not strict liability.” Id. at 208, 447 A.2d at 548.
82 “ The premise is that the price of a product should reflect all of its costs, including the cost of injuries caused by the product.” Id. at 205, 447 A.2d 547; see supra note 21 and accompanying text.
83 Id. at 207, 447 A.2d at 548; see also Brody v. Overlook Hosp., 121 N.J. Super. 299, 296 A.2d 668 (1972).
84 90 N.J. at 207-08, 447 A.2d at 548.
The analysis thus far has assumed that it is possible to define what constitutes “undiscoverable” knowledge and that it will be reasonably possible to determine what knowledge was technologically discoverable at a given time. In fact, both assumptions are highly questionable. The vast confusion that is virtually certain to arise from any attempt to deal in a trial setting with the concept of scientific knowability constitutes a strong reason for avoiding the concept altogether by striking the state-of-the-art defense.
Id. at 207, 447 A.2d at 548.
86 See Cepeda v. Cumberland Eng'g Co., 76 N.J. 152, 162-64, 386 A.2d 816, 821 (1978). The risk-utility analysis employed in New Jersey embodies the Wade factors approach. See supra note 26 and accompanying text. One commentator asserts that the imputation of knowledge and risk-utility analysis are incompatible. Birnbaum, supra note 21, at 622.
87 90 N.J. at 202, 447 A.2d at 545.
88 Id.
89 Id.
90 87 N.J. 229, 432 A.2d 925 (1981).
91 Id. at 230, 432 A.2d at 925; see also Cepeda, 76 N.J. at 172, 286 A.2d at 826
92 90 NJ. at 203-04, 447 A.2d at 546.
93 Even if a warning had been possible, it is doubtful whether it would have resulted in greater safety to employees. Though knowledge of asbestos risks is now widespread, this knowledge has done little to deter workers from handling the product. See Workers and Asbestos: Pitting a Risk Against Holding a Job, N.Y. Times, Oct. 7, 1983, at A32, col. 1. See also Uloth v. City Tank Corp., 376 Mass. 874, 879-80, 384 N.E. 2d 1188, 1192 (1973) (“We decline … to adopt any rule which permits a manufacturer or designer to discharge its total responsibility to workers by simply warning of the dangers of a product … .“).
94 See supra note 28 and accompanying text.
95 See supra notes 45-46 and accompanying text.
96 90 NJ. at 206, 447 A.2d at 547.
97 Id.
98 Id.
99 Wade, supra note 34, at 55; Diamond, Eliminating the “Defect” in Design Strict Products Liability, 34 Hastings L.J. 529, 543 (1983)Google Scholar (“While traditional strict liability allows statistical projections of potential liability based on foreseeable risks, hindsight does not.“). See also Byrne, , Strict Liability and the Scientifically Unknowable Risk, 57 Marq. L. Rev. 660, 674 (1974)Google Scholar; Connolly, , The Liability of a Manufacturer for Unknowable Hazards Inherent in His Product, 32 Ins. Coons. J. 303 (1965)Google Scholar.
100 See Wade, supra note 17, at 826-28 (citing other authorities).
101 90 NJ. at 207, 447 A.2d at 548.
102 See Henderson, supra note 20, at 768; Birnbaum, supra note 21, at 648-49. But see Rheingold, Products Liability—The Ethical Drug Manufacturer's Liability, 18 Rutgers L. Rev. 947, 1015-17 (1964), arguing that imposing liability for unknowable risks would induce manufacturers to engage in more testing and would not impede innovation, and that industry can spread unknowable risks through insurance.
103 Eliminating the knowledge inquiry is especially appealing in light of the burdensome character of asbestos litigation. See supra note 34. The Beshada court, however, did not suggest that it was responding particularly to difficulties in the asbestos context.
104 90 N.J. at 207-08, 447 A.2d at 548.
105 See supra notes 34-36 and accompanying text.
106 Robb, supra note 43, at 3-6. See generally Spradley, supra note 43, at 345-47.
107 Note, supra note 45, at 952. Courts might also hold defendants liable when such delays were unavoidable. See Hiilsen, supra note 21, at 459 (“A very important factor is the necessary lead time for investment and ‘tooling up’ in the industry.“).
108 Butsee 1 L. Frumer & M. Friedmam,supra note 1, at § 6.05[15] (an attempt to provide a workable definition).
109 See supra note 28. The Beshada court made the sweeping assertion that “[w]e impose strict liability because it is unfair for the distributors of a defective product not to compensate its victims.” Id. at 209, 447 A.2d at 549. Compensation is generally regarded as an insufficient justification for imposing tort liability. See supra note 21; Birnbaum, supra note 21, at 643-44 (“[I]f as a social matter.one deems it desirable to hold manufacturers absolutely liable for all product-related injuries, then a legislative approach to the problem is required so that limits can be reasonably placed upon recovery.“).
110 See Wade, supra note 17, at 828 (citing other authorities).
111 See supra note 70 and accompanying text.
112 The Appellate Division made a similar criticism in Feldman v. Lederle Labs., 189 N.J. Super. 424 (1983). There, the court affirmed ajury verdict for a drug manufacturer based on evidence showing that the harm caused by the drug could not have been known at the time of manufacture. Id. at 427-28. The court stated:
The desire to solve the problem of injury from “unknown” but later discovered the solution of risk-spreading by strict liability principles cause harm to the greater public good? Will insuring costs place the cost of research, development and eventual marketing of new drugs beyond that which manufacturers, especially smaller manufacturers, are willing to risk? Will insurers be willing to write such risks, and at what cost? Is it possible that the resulting cost of drug production will place the price of necessary drugs outside the reach of those who most use them, and what would be the effect in the area of the so-called orphan drugs, designed to treat uncommon diseases affecting only a small part of the general population?
Id. at 436. The court cited § 402A's comment k exception, which subjects known adverse drug effects to negligence scrutiny only. It observed that “imposition of the strict liability, or perhaps more accurately stated, the almost absolute liability, principle of theBeshada approach would chill if not smother the research, development, production and marketing of new or experimental drugs “ 189 N.J. Super, at 428-29.
On appeal, the Supreme Court of New Jersey held that manufacturers may raise a state of the art defense in drug cases, but that comment k does not completely exempt drugs from strict liability. Feldman v. Lederle Labs., _ N.J. _, _ A.2d _ (1984). Though acknowledging that this result limited Beshada, the court emphasized that manufacturers would bear the burden of proof on the knowledge issue.
113 94 N.J. 169, 463 A.2d 298 (1983).
114 Id. at 176, 463 A.2d at 301. The plaintiff also alleged that the pool carried inadequate warnings. Id. The plaintiff sustained head injuries after diving into a pool filled with three and a half feet of water. The slippery surface of the pool lining prevented him from pushing himself away before colliding with the bottom. Id. at 178, 463 A.2d at 302.
115 Id. at 178-79, 463 A.2d at 302-03.
116 Id. at 176, 463 A.2d at 302. Finding that the plaintiff had not established the existence of a design defect, the judge submitted the case to the jury on the failure to warn count alone. Id. at 176, 463 A.2d at 301. The jury found that the inadequacy of defendant's warnings rendered the pool defective, that the defect existed at the time of distribution, and that the defect caused the plaintiff's injuries. However, the jury also found the plaintiff contributorily negligent to a degree which precluded recovery under the state's comparative negligence statute, N.J. Stat. Ann. § 2A: 15-5.1 (West 1984). 94 N.J. at 177, 463 A.2d at 301-02. The Appellate Division reversed, holding that the lower court had improperly removed the design defect issue from the jury. The Supreme Court of New Jersey affirmed the Appellate Division, elaborately describing the risk-utility formula which the trial court should have permitted the jury to apply. Id. at 182, 463 A.2d at 304-05.
117 94 N.J. at 182, 463 A.2d at 305. The court distinguished state of the art from custom, making it clear that “[a] manufacturer may have a duty to make products pursuant to a safer design even if the custom of the industry is not to use that alternative.” Id. (citing Michalko v. Cooke Color & Chem. Corp., 91 N.J. 386, 397, 451 A.2d 179 (1982)). Cf. Barker v. Lull Eng'g Co., 20 Cal. 3d 413, 434, 573 P.2d 443, 457, 143 Cal. Rptr. 225, 239 (1978) (state of the art at time of trial assessed).
118 94 N.J. at 183, 463 A.2d at 305.
119 Id.
120 Id. at 184, 463 A.2d at 305. The court noted that “even if there are no alternative methods of making bottoms for above-ground pools, the jury might have found that the risk posed by the pool outweighed its utility.” Id.
121 See supra notes 103-08 and accompanying text.
122 By permitting plaintiffs to introduce evidence that defendants were aware of the product's risks or knew how to make it safer, O'Brien allows defendants to rebut with evidence showing lack of knowledge.
123 See supra notes 84-85 and accompanying text.
