Book Review: International Product Liability Law, a Worldwide Desk Reference

    By: PDMA Headquarters on Oct 01, 2013

    Book Review: International Product Liability Law, a Worldwide Desk Reference   

    By: Gregory L. Fowler. Boston: Aspatore, Inc. , 2004 . 950 pages. 
    Review by: Bradford P. Anderson

    International Product Liability Law : A ...International Product Liability Law
     provides a concise overview and summary of product liability laws in over 50 different countries. It presents the material in a manner so that both the lawyer and non-lawyer appreciate the product liability environment in the covered countries. The chapter for each country was prepared by attorneys in that respective jurisdiction, giving credibility to the content and providing local insight.

    The book uses an easy-to-understand summary page at the front of each chapter/country, in checklist format, which quickly identifies key theories of liability and recovery; the legal system; the trial method; and special issues such as punitive damages, document discovery, and class action rules for that country. Law books are notorious for being impossible to digest in summary format, so this creative checklist index method is both innovative and helpful.

    What is product liability? Briefly, it is the imposition of legal responsibility or liability upon manufacturers and resellers for unsafe, unfit, or unreliable products. This book discusses many different causes of action for bringing a product liability lawsuit. These causes of action can include breach of contract (e.g., the product did not operate as described in the sales agreement), tort (e.g., negligence, such as failure to exercise reasonable care in the design or manufacture of the product), breach of implied or express warranties (e.g., the product does not satisfy implied warranties of being suitable for a particular application or use, or the product does not meet express statements in the sales literature or contract), and violation of specific trade practice or product liability statutes (e.g., deceptive trade practices, consumer protection laws, and “lemon” laws).

    The United States has long been at the forefront of product liability laws. The essential public policy goal of tough product liability laws is clear: create a marketplace that protects consumers and punishes manufacturers/resellers that sell dangerous or defective goods, and you will encourage commerce by providing marketplace integrity (and commensurate product safety) to the consumer. The contrasting public policy view is that careless consumers have received unreasonably large verdicts, resulting in burdening all consumers with additional liability costs passed on from the manufacturer. The core question that a fact finder (judge or jury) in a product liability lawsuit might face can be reduced to: Is the stepladder unsafe (due to improper design or manufacture); or is the stepladder user (plaintiff) clumsy?

    As a general observation for readers, the foreword (p. 9) of International Product Liability Law indicates that “the new Restatement of Torts (Third): Products Liability, produced by the American Law Institute, is beginning to correct some excesses that have arisen over the past thirty years.” Beauty is in the eye of the beholder. Plaintiffs (including their contingency fee lawyers, some earning 33% or more of the verdict) may argue that product liability law remains too restrictive, while manufacturers and resellers can point to the “abuses” in litigation, including enormous class actions and large damage verdicts.

    The foreword notes that “the moderate trends in the United States have been spurred by public policy concerns that excessive product liability laws suppress innovation, cause some good products to be removed from the market, and may place a product liability ‘tax’ on even the most mundane products, such as stepladders. While these trends are taking hold of the United States, some countries in Europe appear to be going the opposite way. Contingency fees or their close relatives, punitive damages, and class actions are taking a foothold in some countries” (p. 9).

    For those involved in the development, production, or sale of products, the book International Product Liability Law accomplishes its goal of providing a generous overview of product liability law in numerous countries. There are some obvious limitations to a book like this. The book is not a substitute for legal counsel (which the author notes at the beginning of the text). Understanding the text may prove challenging for persons without a basic knowledge of legal concepts, because the book does not provide definitions of legal terms and assumes some working knowledge of the law. However, those familiar with product liability concepts, or who refer to a law dictionary (Garner, 2004), will be able to grasp the gist of the material discussed in the book quickly.

    Most readers will find it advisable to read the domestic chapter (e.g., the U.S. chapter for those in the U.S.) initially in order to familiarize themselves with the basic issues of product liability as well as the organizational structure of other chapters. Grasping the underlying (domestic) framework aids when branching out into understanding other jurisdictions covered in the book, and it will make differences with other countries more apparent.

    Despite the fact that a different law firm prepared the summary for each country, the overall consistency and depth of the material is uniform. There are some “stand out” chapters, such as the Singapore chapter, which is written well, pleasant to read, and easy to understand due to the natural flow of the text, as well as the India chapter which includes a useful chart on India's consumer protection act.

    It is unclear how some of the commentary aids the reader or what provides the underlying factual foundation. This may be attributed in part to translating foreign laws and concepts into English, as well as to the difficulty in condensing such an expansive area of the law. For example, in the section on Korea, there is a declaration of the “tremendous trust that Korean citizens have in their judicial system” (p. 441). Other than the fact that the national judicial examination in Korea has a low passing rate, it is unclear what the basis is for arriving at such a conclusion of how all Korean citizens feel about the judicial system or how this information aids the reader in analyzing product liability law. This commentary is probably intended to give a sense of the judicial context in the country so as to provide the reader with a framework in which to understand the technicalities of product liability litigation.

    The Korea chapter provides a good example of comparative law, such as the point that “judges in Korea are exclusively entrusted with the responsibility of fact-finding as well as interpretation of the law” (p. 441). Assignment of one's case to an unbiased and learned judge is especially critical in such jurisdictions, as there is no jury to provide a “citizen's view” on the fact-finding element of the dispute.

    Another area of challenge for some readers will be legal concepts such as “cost” awards. For example, the following quote from the Switzerland chapter requires some basic legal understanding of cost awards: “A judgment usually includes an award on costs. Such costs include court costs on the one hand, and costs for legal assistance of the other party on the other hand” (p. 779).

    Other readers may find that reference to unique geographical terms adds to the difficulty in understanding the point. For example, again using the Switzerland chapter for continuity, there is a notation that “none of the Swiss canton knows a jury trial system for civil litigation” (p. 776). The reader must know something about Switzerland and its cantons (individual “states” within the country) as well as the differences between a common law and a civil law system in order to benefit from this discussion. Canton or no canton, the important point here is that Switzerland, like Korea (mentioned already), utilizes judges (rather than a jury) to perform the fact-finding function.

    Readers may sense a lack of any substantial coverage to the topic of “long-arm” jurisdiction of foreign courts. The key question on this topic is “what sort of involvement do you need with a country for its courts to assert jurisdiction over you?” For example, if a product is manufactured and sold in the United States to a citizen of Peru, and the Peruvian citizen takes the product home to Peru and is injured in Peru, would a court in Peru assert personal jurisdiction (in Peru) over the U.S. manufacturer? What if the Peru court entered a judgment in favor of the plaintiff and then seeks to enforce the judgment on assets (of the U.S. manufacturer) located in Brazil, France, or the United States? This topic is worthy of its own book (or series of books), but more coverage on the area of long-arm foreign jurisdiction would have been helpful to the reader.

    Most readers will crave information on the general size of damage awards in each country. International Product Liability Law does not focus on damage verdict information. Although it is difficult to standardize verdicts in any consistent way across international borders, some basic range of verdicts would have complemented the structure of the book.

    At a pure physical level, this text is a paperback and is not likely to weather the brutalities of frequent use very well. It would be preferable to have it more durably constructed (such as a hardback format), but the benefit of the soft cover and binding is that it does allow you to open this hefty volume (950 pages) and have it stay on the page you opened to without flapping shut.

    What International Product Liability Law seeks to do, it does well. It provides a clear, concise, and easy-to-understand overview of product liability laws and legal systems in over 50 countries. For a person involved in product development, this book provides the intellectual ammunition needed to digest the core concepts intelligently in the covered jurisdictions. Although the book is not suitable (and does not seek) to replace the advice of an attorney, referring to the text will help the reader to develop a basic understanding so that the advice of legal counsel will be more meaningful and easier to understand.

    Released: October 1, 2013, 12:32 pm | Updated: October 30, 2013, 12:33 pm
    Keywords: PDMA Blog

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