Look back to predict the next 50 years?

When Design News was first published in 1946, it was barely 30 years after New York Judge Benjamin Cardozo ruled in the landmark case of McPhearson v. Buick. It was held that the Buick purchaser could actually sue Buick and the dealer.

When Don McPhearson crashed into a ditch in Saratoga Springs, NY due to the collapse of his three-month-old Buick's rear wheel, he suffered serious injuries. When he sued Buick, he broke new ground. The suit convinced New York State's highest court to allow suits by purchasers of products against the remote vendor (the manufacturer), rather than just the seller with whom he or she has a sales contract. Given that manufacturers advertise nationally and expect and intend remote purchasers to buy their products, this is obviously fair.

Impact of landmark cases. In the 1940s and '50s, it was still difficult to win a products liability case against a manufacturer. The injured party had to prove that the manufacturer's employees were negligent, didn't meet their design or manufacturing duty or standard of care, and that this neglect caused the injury. An injured party faced this legal hurdle until 1960, when the California Supreme Court in the landmark case of Greenman v. Yuba Power Products chose to examine the condition of the product itself rather than the conduct of the manufacturer's employees.

Mr. Greenman was using a lathe manufactured by Yuba when he suffered a serious injury. By examining the product instead of the manufacturer's conduct, the California court established a new theory of recovery. Under this law, the California court held that if the product is defective or unreasonably dangerous when it leaves manufacturers' control and thereafter causes injury, the company will be held liable. The manufacturer's knowledge or conduct with respect to the product's defect is no longer the test. In the courtroom, life for the manufacturer has never been the same since.

With this case, legal changes began to swing in the plaintiff's favor. The next legal innovation was punitive damages. Assessed in addition to compensatory awards for the injured party, these damages punish an errant defendant for willful, wanton disregard for the consumer's welfare. Large corporate deep-pocket defendants soon became the target of multi-million dollar judgments for egregious conduct.

In the 1940s and '50s, asbestos manufacturers merrily sold huge amounts of this naturally occurring mineral. Meanwhile, some corporate decision-makers intentionally suppressed medical data that unequivocally established that long-term exposure to their productled to often fatal lung disease. Insurers accepted modest insurance premiums and insured these companies selling asbestos-which led to thousands of deaths, disabling illnesses, and lawsuits 30 to 40 years later. Juries returned huge ver-dicts, including punitive damage awards due to companies' willful, wanton dis-regard for consumers. This litigation pushed 16 manufacturers to seek federal bankruptcy protection.

As jury verdicts skyrocketed, laws became more liberal and insurance premiums became unaffordable. Corporate America sought judicial change. While huge verdicts still occur, the pendulum is slowly returning towards a more conservative judicial climate, principally due to companies' efforts to build safer products with appropriate warnings.

How will the courtroom handle products liability in the next 50 years?

Looking ahead. In 2046, the computer, robots, biotechnology, and other high tech advances will have undoubtedly affected the legal landscape tremendously. U.S. products liability laws will be overhauled, consolidated, and made uniform from the 50 different sets of state laws and decisions and 13 sets of federal decisions which exist today. Such legislation has been in the works for almost 20 years. Almost certainly, some uniformity will occur within 50 more years.

U.S. litigation is simply becoming too expensive. As our courts become overcrowded with civil and criminal cases, parties will rely on Alternative Dispute Resolution (ADR) more consistently. Mediation and arbitration of disputes before a single fact finder or panel of three will speed up the judicial process, reduce legal fees, and expedite settlements.

These improvements will not eliminate or substantially reduce the products liability exposure to companies. Since law schools churn out 75,000 to 100,000 new lawyers each year, our society is destined to remain one of the most litigious in the world. As one area of products litigation is successfully defended, the plaintiffs bar--never short on imagination and ingenuity--will devise new areas to litigate.

Mass disasters such as Three Mile Island will continue to attract attorneys. Eventually, our reliance on technology will become so dependent that if the technology fails, the developers may be held accountable. For instance, if the technology designed to predict natural disasters such as hurricanes doesn't provide advance warning, it may lead to the liability of its developers.

Technological strides in the next 50 years may overshadow those of the past 50 years. It is from these very technological changes that most of our products liability-related exposure has risen. In 1946, travel to the moon was science fiction. What will our conceptual limits be in 2046?