Editorial: Tort Reform of the Future

How Missouri can become a leader in legal clarity

   

By Rep. Bruce DeGroot and Thomas Bradbury

As the economy continues to grow and new technologies emerge, there is a real need for legal clarity that both protects the individual and gives fair outcomes to businesses. However, in many rising industries there is a clear lack of legal precedent or guidelines. While this is a problem, it is also an opportunity for Missouri to become a leader.

From 3D printers to autonomous vehicles, there are many reasons to be excited for the future. Yet, there is also a huge risk of overzealous regulation and unfair liability standards that would stifle innovation and delay new product development.

Existing industry is already timid about moving to the state. One reason for this is that the U.S. Chamber of Commerce ranked Missouri as the second worst lawsuit climate in the country. This type of legal environment is losing the state business and hurting growth. 

While there are already strides being made to address those issues, Missouri has an opportunity – through tort reform focused on the future – to be the first state that signals to tech companies that we are a destination to do business. By doing this Missouri will have a chance to welcome new jobs and grow our economy.

One of the new technologies that is already showing significant promise is 3D printing. Though around in some capacity since the 1980s, 3D printing has now become a feasible area for everything from prosthetics to manufacturing and even homebased printed objects.

3D printing is a form of additive manufacturing where materials and a blueprint are inputted into a machine that creates the blueprint from the materials layer-by-layer until a finished product is constructed. For example, one popular use of 3D printing among the early group of home printer adapters is custom phone cases. To create this case, a person would either find an existing blueprint on the internet or create their own, input a plastic or silicone based material into their printer and then wait for it to print.

This technology is significant. “As 3D printers improve and become ubiquitous, having a computer-aided design (CAD) file of an object, such as a coffee cup or a toy, will essentially be the equivalent of having the physical object,” wrote Lucus Osborn of Campbell University School of Law. This will clearly present a number of interesting questions for the courts to decide; like who is liable if an injury occurs from a 3D printed object, what legally qualifies as a product and who is a manufacturer. 

The time to decide these questions is more pressing now than ever. For example, the FDA has already reviewed hundreds of medical devices, including prosthetics and dental implants that are custom fitted to a patient. Since any doctor could now be aided by the use of custom medical devices for patients, it creates the unique question of who becomes liable, from the person who made the design to the 3D printer itself if something goes wrong.

Traditionally, courts have not considered something like software or code to be products. For example, intangible content associated with products are not subject to product liability law. The reason 3D printers are different is because the code could be seen as a product in the end resulting object. This question gets more challenging if the blueprint for the object was not sold, but simply available for download online.

Furthermore, current product liability definitions are unlikely to apply to the nontraditional sources like repair shops, hospitals and people’s homes. Instead, traditional liability principals should solve these issues. For example, people who create blueprints should be protected if they provide adequate warnings or instructions. 3D printers should not be liable for things created through their product just as a manufacturer of tools should not be liable for a poorly constructed building. 

At its core, steps should be taken to ensure that the Missouri Merchandise Protection Act is not extended to cover 3D printed objects from nontraditional sources. This is because RSMO Chapter 407 was never intended to include these types of actions. Instead, courts will need strict expert witness standards to serve as gatekeepers that evaluate duty of care from all potential parties.

Unless these steps are taken to create balanced standards to fairly determine liability, excessive litigation from plaintiff’s attorneys could stifle the innovation that 3D printing technology provides by making it too cost prohibitive for individuals to engage in.

In terms of public safety, autonomous vehicles are poised to be one of the most significant advancements in the near future. By eliminating human error, drunk driving and road rage Missouri’s streets would be significantly safer for all those on them. Additionally, they are expected to provide mobility to senior citizens and handicapped individuals unable to currently drive. 

Furthermore, research has found that autonomous vehicles will have a significant effect on our economy. A 2013 study by the Eno Center for Transportation found that if only 10 percent of the cars on the road were self-driving, 1,000 lives and $18 billion would be saved each year. When 90 percent of the cars are autonomous, those numbers jump to 22,000 lives and $350 billion. 

While this research is exciting, the prospect of a future with autonomous vehicles may be further away than most think due to the prospect of burdensome regulation and lawsuits. Thankfully, there are many features of autonomous vehicles already being introduced in recently released vehicles. Whether it be lane assist, self-parking or front end collision awareness, the technology of autonomous vehicles is already making the roads safer.

Autonomous vehicles will require a number of features like sensors, radars, cameras, computer mapping, vehicle-to-vehicle communication, vehicle-to-infrastructure communication and more, to provide data for the car’s artificial intelligence to properly evaluate the road and its conditions. With all of these working parts on top of traditional car mechanisms, there is a major fear that excessive litigation could undermine the entire field before the technology is able to take off.

In the near future, as fully autonomous vehicles share the road with human drivers there will be major questions that arise in where liability falls. California and Nevada have been the first states to try and define this. These states place liability on the operator of the autonomous vehicle. This standard is particularly effective. 

This leads to the ultimate question of how much courts should rule for negligence versus product liability. Because traditional car accidents are assessed by driver negligence, product liability only comes into play when defects in cars cause or exacerbate injuries. If the negligence standard is used for autonomous vehicles, courts will be forced to look at the circumstances of the crash, rather than simply allowing suits to be brought against every manufacturer involved in the finished product of an autonomous vehicle.

University of Surrey Law Professor Ryan Abbott believes that negligence should continue to be used as the standard and not product liability for autonomous car companies because, “holding computer-generated torts to a negligence standard will result in an improved outcome; it will accelerate the adoption of automation.” 

Personal injury attorneys fear this precedent because they would rather use standards in product liability to go after software designers, component makers and car manufacturers. If the negligence standard is not used, extreme litigation could threaten the advancement of this life saving technology.

3D printing and autonomous vehicles are just two of the exciting new technologies that have the potential to bring significant public benefits. As other new areas emerge in our economy, it is important to protect the industries against unjust litigation.

In order to grow Missouri’s economy, it is imperative that the state legislature acts appropriately by creating or applying reasonable legal standards that do not diminish or delay new innovation. If this is done, Missouri can be on the cutting edge of advancement that brings our state into a prosperous future.

Rep. Bruce DeGroot currently represents Missouri’s 101st District. DeGroot served as Vice Chairman of the Judiciary Committee during Missouri’s 99th General Assembly. He is a defense attorney for the Brown & James PC which serves clients throughout the state of Missouri.

Thomas Bradbury is the legislative aide to DeGroot. He previously served in the same role to Rep. Dan Stacy. Additionally, Bradbury formerly worked for political consultant James Harris and was a legislative intern to Sen. Roy Blunt.