03 November 2013


'3-D Printing and Product Liability: Identifying the Obstacles' by Nora Freeman Engstrom in (2013) 162(35) University of Pennsylvania Law Review Online comments that
Though just in its infancy, 3-D printing seems poised to transform the goods we buy, the products we use, and the world we inhabit. A question frequently raised about 3-D printing, though, is how product liability law will apply to 3-D-printed goods. Tackling that important and timely question, this Essay applies contemporary product liability law to defective products from home 3-D printers. The analysis reveals that if home 3-D printing really does take off, PL litigation as we know it may well, in large measure, dry up. And if it doesn’t, the technology threatens to unsettle the theoretical justification for product liability law’s development.
Engstrom suggests consequences if the dream of the printer in every home is even partially realized.
The first consequence is obvious and uncontroversial: many more individuals will make, in their kitchens and on their countertops, products that are complex, sophisticated, and dangerous. The second consequence is equally uncontroversial: over time, these hobbyist inventors will start selling some of the complex, sophisticated, and dangerous products they create, and certain individuals who purchase their creations will, unfortunately but inevitably, sustain injuries. The third consequence is, I think, surprising: in many instances, no one will be strictly liable for these injuries under current PL doctrine.
Injured by a 3-D-printed product, an individual would likely sue one (or more) of the following: ( a) the hobbyist inventor who created and sold the defective 3-D-printed product, ( b) the manufacturer of the 3-D printer that “printed” the defective item, and/or ( c) the “digital designer” who wrote the code that instructed the printer what to print. Yet, as I will show, even assuming that the product is unambiguously defective, a plaintiff will have trouble prevailing in a PL action against any one of these three possible defendants.
The first and most obvious potential defendant would be the hobbyist inventor who actually manufactured and sold the defective product. Here, though, exists a significant impediment. Strict product liability applies only to commercial sellers—those “engaged in the business of selling or otherwise distributing products.” Occasional or casual vendors, such as a child who makes and sells tainted lemonade or a housewife who makes and sells contaminated jam, fall outside strict liability’s scope.
On which side of the commercial–occasional divide will hobbyist 3-D inventors fall? The answer will depend on a number of particulars, including the relationship of the allegedly defective product to the hobbyist’s general business (if she even has a business), the frequency and volume of similar sales, and the existence and nature of any mass marketing. Certainly, someone who starts as a 3 -D hobbyist could become so wrapped up in her product’s creation and distribution that she could morph into a commercial seller for PL purposes. But if the hobbyist forswears advertising, keeps volumes low, and limits her product’s distribution, this “commercial seller” requirement, unless it’s relaxed, will limit liability.
Assuming a product liability suit against the hobbyist inventor is unavailing, a second potential defendant would be the company that manufactured the 3-D printer itself. But here, a likely insurmountable obstacle blocks recovery. To prevail in such a suit, the plaintiff will have to show not simply that the printer churned out a defective product, but, instead, that the printer was itself defective. And, it’s not enough that the printer was defective at the time it printed the troublesome item — it must have been defective at the time it left the printer manufacturer’s possession and control. If the plaintiff can’t make this showing, a product liability suit is probably a nonstarter.
The third possible defendant is, of course, the digital designer—the programmer who wrote the code that was fed into the printer to create the product at issue. Yet, here too, there are obstacles. Most importantly, just as strict liability law applies only to “commercial sellers” and implicates only those items that are themselves “defective,” it also applies only to “products”— defined by the Third Restatement as “tangible personal property.” And, though there’s some contrary authority, there are strong arguments that code does not qualify.
The digital designer will liken his code to information contained in books—and a number of cases hold that such content is not a “product” for PL purposes. The leading case is Winter v. G.P. Putnam’s Sons. There, two unlucky souls relied on inaccurate information contained in The Encyclopedia of Mushrooms to harvest and consume certain poisonous mushrooms. They became critically ill and sued, claiming, among other things, that the encyclopedia was a defective product. The Ninth Circuit disagreed. The book, the court reasoned, was fine. The book’s content was defective, but content is intangible, and intangible products, said the court, can’t give rise to product liability actions. Other courts have drawn a similar tangible–intangible line in actions involving videogames, shielding game manufacturers from liability.
To be sure, 3-D plaintiffs have some authority in their favor. For one, in Winter itself, the Ninth Circuit suggested in dictum that computer software could be considered a “product.” In addition, a number of courts have held that inaccurate information contained in navigational or aeronautical charts qualifies — and, reasoning by analogy, a digital design is arguably more like an aeronautical chart than a monograph or videogame. After all, both digital designs and aeronautical charts raise few delicate First Amendment concerns, and both are highly technical and instructional. Further, and more broadly, whether computer code qualifies as a product has not, so far, been widely considered or aggressively litigated, so there is ample room for argument and, thereafter, doctrinal development. Nevertheless, it’s important to recognize that this tangible–intangible distinction might end up being a significant barrier.
Further, even if digital designs are “products,” the plaintiff is hardly out of the woods. First, digital designers may not be “commercial sellers.” Especially if they are hobbyists who freely share their designs, they probably aren’t — returning us to the occasional seller–commercial seller problem considered previously. Second, digital designers are in some ways like architects, and courts have thus far refrained from imposing strict liability on these professionals. And third, to prevail under the Second Restatement, a plaintiff must, with various caveats, show that the defendant’s product “is expected to and does reach the user or consumer without substantial change.” Here, however, a digital designer’s “product” (its code) will arguably reach the end user only after undergoing substantial alteration, via the printing process itself. In a case that’s somewhat analogous — and might end up being important — Judge José Cabranes considered this point determinative. He refused to consider an architect’s design through the lens of PL because, even if the architect’s “working drawings, plans and specifications” qualified as a product for PL purposes, the design was utilized by the plaintiff (the building lessee) only after its transformation, via construction, “from designs drawn on paper into a large building suitable for [the plaintiff ’s] business.”  Digital designers will have at their fingertips a very similar argument.