Manufacturers are often still liable as long as the misuse was foreseeable — which means manufacturers will need to design, build and craft warnings for 3-D-printed products that take into account consumer behavior.
3-D printing has enabled a variety of new manufacturing processes that will blur fundamental distinctions in the law of product liability — potentially exposing companies to liability they did not anticipate. In the hands of consumers, 3-D printing technology may expand the scope of foreseeable misuse, which manufacturers must account for when crafting warnings for consumer products.
Litigation arising from the design of 3-D-printed products may call for the application of product liability principles to software and pure information. And risks associated with the spread of 3-D printing technology make it even more important for manufacturers to focus carefully on the risk allocation provisions in their contracts with suppliers and other partners.
Defending Against Foreseeable Misuse
Under the basic rules of product liability law in most jurisdictions, manufacturers are strictly liable for defects in their products — defects in design, manufacture, or warnings that render a product unreasonably dangerous for its intended use. But what about when a product is misused by the consumer?
In most jurisdictions, the manufacturer is still liable as long as the misuse was foreseeable to the manufacturer. That means that manufacturers have to design, build, and craft warnings for their products that take into account consumer behavior, even if that behavior includes using the product in ways the manufacturer did not intend.
The foreseeable misuse doctrine will become even more relevant as 3-D printing allows consumers to modify manufactured products. Consumers can already download designs for all kinds of 3-D-printed aftermarket modifications and accessories, from car engine parts to climbing wall holds to firearm silencers. Critically, the range of uses that are foreseeable can change over time: uses that may not have been foreseeable when a product was initially designed can become foreseeable as a result of changes in consumer behavior. Manufacturers of consumer products will need to monitor how their products are being modified by consumers and then consider whether popular 3-D-printed modifications and accessories require design changes or revised product warnings to keep consumers safe.
That does not mean companies should necessarily make it harder for consumers to modify their products with 3-D-printed accessories; on the contrary, 3-D printing may help develop vibrant user communities focused on creating new aftermarket components that enhance product utility. But 3-D printing technology may also provide consumers access to modifications or uses that make dangerous products that are otherwise safe. Companies must be prepared to act when they learn that consumers are modifying their products in ways that create safety risks.
There is one additional, related concern to note for manufacturers of 3-D printers. Future litigation may concern whether such manufacturers have a duty to impose restrictions or capstones on what their 3-D printers can produce. For example, a plaintiff who was injured by a 3-D-printed product may argue the product should never have been possible in the first place. Although such risks are real, at present there are no reported examples to draw from and this remains but a cautionary warning.
Liability Based on 3-D Printing Software
3-D printers use embedded software for operation, as well as stand-alone software that outlines the tangible items to be produced. So what happens when errors in that software cause defective products and subsequent injury?
Case law considering whether product liability rules — including strict liability — apply to software and information is sparse. But when courts do address product liability claims involving software or information, they focus on whether that software or information is a “product.” At this point, commentators and courts have indicated most types of software and information are not considered “products,” and thus strict product liability does not apply.
It is relatively clear that if hardware causes injury due to an embedded software defect, the hardware manufacturer is liable. For example, if a software error causes an unintended car movement, the car manufacturer is strictly liable for that defect. By extension, if a 3-D printer malfunctions due to embedded software (which directs the printer how to operate), the manufacturer of that 3-D printer could be held strictly liable, even if the printer’s functionality derives solely from software.
Things are much less clear when the question is liability of the software developer rather than the hardware manufacturer — such as developers that create software used by 3-D printers to manufacture goods. According to one commentator, there “seems to be little doubt that a product malfunctioning because of defective software would be treated as a defective product, and the manufacturer of that product would be subject to strict liability,” but it remains “unclear whether providers of embedded software would be treated as component manufacturers, or merely providers of a service — like architects or engineers.” At this point, courts have avoided answering the question.
Software in many situations — like automation, guidance systems, and even 3-D printing — transfers decision-making from the user to the software developer, and it is likely courts will have trouble maintaining a rigid no-liability stand simply because software is not tangible. That has two implications for businesses.
First, applying product liability rules to 3-D printing designs will directly affect companies that create and distribute designs for 3-D-printed products. Even companies that are not primarily focused on creating 3-D-printable designs may provide component designs to suppliers or distribute 3-D printing designs to dealers or consumers in the context of marketing efforts. Whenever a company creates and disseminates a design for a 3-D printed product or component, it should know that the same strict liability rules that apply to physical products may apply to the design.
Second, litigation involving 3-D-printed designs has the potential to expand the scope of product liability law more generally, making it more difficult for companies to claim that their software or information products are exempt from the liability standards that apply to physical products. 3-D printing is just one example of a new technology that makes it more likely that mistakes or oversights in the creation of software will translate into real-world property damage and/or physical injuries. Companies should consider making their software and information products subject to the same systems for product liability risk evaluation and mitigation that they use for physical products.
Contractual Risk-Shifting in 3-D Printing Contracts
Companies routinely use indemnity clauses, insurance requirements, and disclaimers of liability to allocate product liability risk contractually, and those provisions will be key to managing new product liability risks that arise from the expansion of 3-D printing. Companies that buy or sell 3-D printing hardware and software should make sure they understand the extent of the exposure they are agreeing to. Sophisticated sellers of designs for 3-D-printed products will adopt standard terms that insulate them from liability — firms doing business with those sellers need to evaluate carefully when and how hard they want to push back.
3-D printing will create tremendous opportunities for manufacturers and consumers alike to develop new products and customize existing ones. At the same time, manufacturers need to be wary of new product liability risks that the widespread availability of 3-D printing could generate. Companies should make sure their existing product safety procedures and contracting practices take these potential product liability risks into account.
Andy Crowder is an attorney at Perkins Coie, LLP. He focuses on product liability and commercial litigation, defending companies against product liability claims and providing counsel regarding product liability risk. Andy’s clients include aviation manufacturers, heavy industry manufacturers, and global technology companies. Recently, a substantial part of Andy’s work has involved guiding clients through the various legal pitfalls arising from the burgeoning Internet of Things and related world of device interconnectivity.
Alex Fenner is a litigator at Perkins Coie, LLP. He represents clients in the aviation, food, technology, and retail sectors in product liability matters, commercial litigation, and consumer class actions. He also maintains an active counseling practice advising manufacturers and sellers of consumer products seeking to manage litigation and regulatory risks.