Holding product importers responsible

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Products Liability

November 2012, Volume 48, No. 11

Holding product importers responsible 

Henry “Hank” N. Didier Jr.

Too often, lawyers shy away from cases involving defective products made in other countries. But strategic use of U.S. regulations and a U.S. importer’s own documentation can help plaintiff lawyers to pursue import companies while avoiding the pitfalls of foreign laws.

It’s no secret that more products we use and rely on every day have been made in a foreign country and imported by an American company for sale in the United States. But are these products safe? Regulatory agencies such as the Consumer Product Safety Commission (CPSC) and the National Highway Traffic Safety Administration (NHTSA) have put minimum standards in place for consumer products entering the country.

When products that don’t meet these standards find their way onto U.S. shelves, lawyers often shudder at the thought of litigating against manufacturers across the globe. But lawyers can file claims against the importer in addition to the manufacturer. Although few cases have been brought against importers to hold them directly liable for their negligence in distributing defective products, these suits can be successful if you properly introduce federal standards to the jury.1

While importers have long been liable in most jurisdictions under strict liability theories for product defects because of their role in the chain of distribution, they have not traditionally been viewed as the responsible party in foreign-made product defect cases because they “merely import” and “just distribute” the part or product in question.

Importers often try to shift blame to the foreign fabricators they use, even though such arguments are in direct conflict with the obligations imposed on importers by the federal government. As we pursue justice for our clients in these changing economic times, we must evaluate the specific responsibilities of all parties.

In 1972, Congress enacted the Consumer Product Safety Act (CPSA)2 to protect consumers from unreasonable risk of injury. The act defines a “manufacturer” as “any person who manufactures or imports a consumer product.”3 Although the definition was clear on its face in creating responsibilities for importers for the safety of such products, the CPSC issued a policy statement in 1976 unambiguously stating that “under the Act, importers are made subject to the same responsibilities as domestic manufacturers.”4

This policy makes perfect sense and reflects the realities of regulating the importation of foreign-made products. The government clearly has the power and ability to take action to protect the public when a U.S.-based manufacturer makes a defective product in a facility on U.S. soil. If that same company outsources manufacturing responsibilities to foreign-based fabricators, the government must still be able to ensure products are safe before they are sold and distributed domestically. By crafting laws that define “manufacturer” to include those domestic companies that import products, the government can exercise regulatory control.

The CPSA is not the only regulatory scheme that has adopted this approach. Similar definitions are used in the National Traffic and Motor Vehicle Safety Act (Safety Act). Under the Safety Act, as administered by NHTSA, importers of “motor vehicles or motor vehicle equipment for resale” are deemed to be the “manufacturer” of the imported product.5

While these regulations do not delineate or specify the importer’s duties or responsibilities, they are the foundation for building successful strict liability and common law negligence cases against irresponsible importers.

Importer responsibilities

Regardless of where a product is made, there is generally broad consensus about what reasonably prudent “manufacturers” must do to prevent unsafe and defective products from reaching the marketplace. Over the last few decades, the government6 and various industry groups, like the Motor & Equipment Manufacturers Association (MEMA) and the Specialty Equipment Market Association (SEMA), have weighed in on the issue of importer safety and have provided their own perspectives on what responsible importers should do and how they should conduct themselves to keep defective imported products out of the marketplace.

The importance of this issue to both government and industry is multi-­faceted, and the U.S. government has been steadfast in its efforts to ensure that U.S. laws, and the efforts of the agencies that enforce them, are in line with consumer protection.

For example, in 2007, President George W. Bush established the Interagency Working Group on Import Safety (Working Group).7 The Working Group quickly created a strategic framework8 and within a year issued a progress report9 addressing its efforts to identify and incentivize recognized practices with respect to ensuring the importation of safe foreign-made goods.

When considered together, these industry and government resource materials provide a wealth of information about exactly what reasonable importers should be doing and considering as they make the decision to use foreign fabricators. For instance, they should create detailed contracts laying out processes to ensure product safety, conduct site visits, review and approve the manufacturing processes, set policies for quality control, perform random tests at the fabricator facility, and randomly test the product during importation.

When importers try to skirt liability by claiming blind reliance on their foreign manufacturing partners, lawyers can point to these long-standing regulations. When importers try to point the finger at foreign fabricating manufacturers for their failures, the regulations provide support to plaintiff claims that the importers bear responsibility for failing to take reasonable steps to ensure the product’s safety.

The regulations also require that importers ascertain information about the imported product’s design, materials specifications, manufacturing processes, quality control measures, and other details. The information is supposed to be gathered proactively before importation. These documents can be very useful, especially because most are in English.

By suing the importer, a plaintiff can access invaluable information about the foreign manufacturer’s design, manufacturing, testing, and quality control records quickly and easily through discovery, while service and other foreign legal issues could delay similar discovery in cases solely against the manufacturer.

Lawsuit tactics

To most effectively pursue claims against importers, consider these practical tips that can pave the road to success.

The common wisdom that the foreign fabricator or manufacturer must be joined in a product defect suit if it is to succeed is not true. For years, defense lawyers have effectively used blame-shifting trial themes to obtain defense verdicts for their importer clients. But if you review the trials closely, it becomes evident that the federal regulatory schemes meant to protect the consumer were never brought to bear. If you weave the power of the government’s safety policies into importer-based claims, you can make powerful jury arguments that the importer is independently negligent for its business practices because it failed to follow well-recognized standards of practice to protect the public from unsafe products.

It is critical that the federal laws relating to importers be presented to the jury. The most effective means to do this is a motion for judicial notice. Many states require that courts take judicial notice of “public statutory law,”10 and a motion sets the stage for introducing these laws before the jury.

It is best to identify the specific federal laws, definitions, or regulations that apply to the importer’s conduct and the product in your case. The best tool for this purpose is a request for admission.11 Because the federal laws related to importers’ responsibilities are beyond dispute, requests for admissions can be used to gain factual concessions that take away the defense’s ability to argue against the regulations’ applicability. If the definitions outlined by the CPSA, for example, are broken down into smaller, undisputable concessions like “the product in question was imported” and “the disputed product is a ‘consumer product’ as defined by the CPSA,” then the ultimate admission of the laws becomes a simpler matter.

You must be extremely diligent in discovery in order to pin down importers as to what documents and materials they had at or before the time the product was distributed and sold, and what they may have in their possession, custody, and control at the time of discovery. Generally, the only documents and materials that are probative of the importer’s conduct are those that it was aware of when or before it distributed and sold the product at issue. Often, the defense tries to use documents, testing, and expert testimony performed after the product has already been sold in this country to defend the product, but in a negligence claim targeting the importer’s conduct, post hoc bootstrapping is improper. You must be cognizant of this strategy, and make sure that the importer specifies exactly what information it had in the relevant time frame and that you set up appropriate motions in limine at trial.

Additionally, you must understand that importers commonly respond to initial discovery requests that they have “no documents in their possession” or simply list “none.” But as the case proceeds and the importer begins to recognize the problems involved in claiming blind reliance on its chosen foreign fabricator, the importer may “voluntarily obtain” production of all manner of materials from overseas as it changes its defense strategy. Timely production of materials obtained from the fabricator can be beneficial if it results in the production of materials that could not be obtained otherwise. On the other hand, when production is made just after the plaintiff experts have finalized their opinions and provided testimony or immediately before trial, you must be prepared to challenge such conduct directly.

If your case is in federal court, this is easier because of how Rule 26 operates. Pursuant to Federal Rule of Civil Procedure 26(a)(1)(A)(ii) “ . . . a party must . . . provide to the other parties . . . a copy—or a description by category or location—of all documents, electronically store information, and tangible things that the disclosing party has in its possession, custody, or control and may be used to support its claims or defenses. . . .”12

Additionally, parties have continuing obligations to supplement or correct disclosures.13 Thus, if a defendant plans to use materials from its foreign fabricator in support of its defenses, which it can either obtain voluntarily by a simple request or pursuant to a preexisting contract, it has “control” and must provide the discovery without delay. If the defendant doesn’t provide the information, you can challenge the discovery abuse and surprise tactics and move to exclude the materials. In state courts, the disclosure rules tend to be weaker, so you must plan to make repeated requests at key times.

In either federal or state jurisdiction, it is a good practice to continually request any discovery and communicate your concerns to the importers about late disclosures of the fabricator’s documents, as you will often get a response that they “lack control” to obtain anything. This becomes a key piece of your sanctions motion later because it is difficult for the defense to explain how the documents were obtained after they repeatedly claimed that they couldn’t obtain them.

Do not overlook the evidentiary problems the importers may face in using or admitting the fabricator’s records at trial if you see selective production occurring. If you suspect that records are being selectively provided solely for the defense’s benefits, you should consider filing a motion in limine challenging the records because there was no records custodian, the original untranslated source material was not provided, or other indicia of reliability are absent.

Use the corporate representative deposition to definitively lay out key elements of your importer liability case and to establish a timeline of what the importer knew and when. As a starting point, whether in federal or state court, you should set a Rule 30(b)(6) deposition, but not until after you have consulted with your importer liability expert and after the defendant has specified what documents it had in the relevant time frame.14 You can then walk the company representative through what the company knew, when it knew the product was unsafe, and whether its executives took steps to ensure the product’s safety was consistent with its legal obligations and recognized standards of practice.

Breach of duties

The most effective way to develop testimony on the breach of duties in these cases is to use materials relating to importation practices from government agencies or private groups. For example, in a motor vehicle case, look to the government’s manual on Recommended Best Practices for Importers of Motor Vehicles and Motor Vehicle Equipment to develop questions.15 While the manual does not mandate any specific actions importers must take, it does effectively describe what is reasonable for importers to do in light of their legal status as manufacturers. Using the Best Practices as a framework, you can explore whether the importer fully understood its legal obligations and its own product’s specifications and design, properly inspected its foreign fabricator’s facility and developed adequate quality control mechanisms, and developed a framework for testing and inspecting its products before they reached the marketplace.

By using these types of materials to frame your inquiries, and by being diligent in developing a clear timeline of what the importer did or did not do in the relevant time periods, you will be better able to develop an effective and compelling case story.

When questioning the company’s representative, you will either develop testimony consistent with an “it was not us, it was them,” defense or you will determine the extent of the company’s efforts to meet its obligations. Often, the defense strategy is to claim blind reliance on a fabricator, and the defendants will openly concede what the requisite safety measures are and acknowledge that they don’t know whether those steps were taken.

Alternatively, they will blame the fabricator for the failure or safety defect. In either scenario, what the representative is doing for your case is agreeing that the company had a duty to ensure product safety and handing you the breach-of-duty story for your trial: Either the importer failed to comply with its obligations under federal law by unfounded blind reliance, or it is acknowledging why the product was defective and aiding your strict liability claim against the importer.

At the end of the day, the disappointing truth is that many importers are not meeting their obligations under our federal regulatory scheme, and as a result people are being hurt by defective foreign-made products. A strong liability case can be made that dangerous defective products are entering the U.S. marketplace because importers are dodging their responsibilities. Ultimately, it is hard for importers to argue that blind reliance on foreign manufacturers is acceptable. When traditional liability arguments against foreign-made product manufacturers are bolstered by independent importer claims, the individual plaintiff and the public at large can only benefit.

Henry “Hank” N. Didier Jr. practices product safety law with the Didier Law Firm in Orlando, Fla. He can be reached at Didier@productsafetyattorneys.com.

Notes:

  1. I have used federal regulations in suits against importers for alleged defects in both consumer and automotive products. One case is currently on appeal on the issue of appropriate jury instructions consistent with the federal safety regulations discussed herein. Mazzanet-Figueroa v. Scorpion Sports, Inc., No. 08- CA-20186 (Fla., Orange Co. Cir. May 20, 2011); Mazzanet-Figueroa v. Scorpion Sports, Inc., No. 5D11-3162 (Fla. 5th Dist. App. app. filed Sept. 16, 2011).
  2. 15 U.S.C. §2051–2089.
  3. 15 U.S.C. §2052(11).
  4. 16 C.F.R. §1009.3 (1976).
  5. 49 U.S.C. §30102(a)(5)(B) (1994).
  6. See CPSC, Handbook for Manufacturing Safer Consumer Products (July 2006) (originally published in June 1975 and revised in May 1977); see also Recommended Best Practices for Importers of Motor Vehicles and Motor Vehicle Equipment, 73 Fed. Reg. 79207 (Dec. 24, 2008).
  7. Exec. Or. 13439 (2007).
  8. Interagency Working Group on Import Safety, Protecting American Consumers Every Step of the Way: A Strategic Framework for Continual Improvement in Import Safety (Sept. 10, 2007).
  9. Interagency Working Group on Import Safety, Import Safety–Action Plan Update (July 2008).
  10. See Fla. Stat. §90.201(1); see also Fed. R. Evid. 201.
  11. See Fla. R. Civ. P. 1.370; see also Fed. R. Civ. P. 36.
  12. Fed. R. Civ. P. 26(a)(1)(A)(ii).
  13. Fed. R. Civ. P. 26(e)(1)(A).
  14. See Fed. R. Civ. P. 30(b)(6); see also Fla. R. Civ. P. 1.310(b)(6).
  15. See Recommended Best Practices for Importers, supra n.6.


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