Last year I was honored as the outgoing president of a local bar association and was given a lovely glass award, a proclamation from the mayor, and a 3D printed car.  Not a real car mind you, but tiny replica of the Porsche 997.  The detail of the car is really remarkable down to its tiny door handles and side mirrors.  I can tell you that most people who come into my office are more interested in handling that little car and hearing about how it was made than they are in my fancy glass award or the proclamation (no disrespect to the mayor).

No doubt you too have heard much about the emergence of 3D printing and may be wondering what it means for you and your company.  From the perspective of product liability law it is important to look at this from two vantage points: that of the manufacturer who utilizes 3D printing and that of the home user.

For several decades we have understood that manufactured products that are put into the stream of commerce are subject to the doctrine of strict liability.  Case law in California explains that the stream of commerce approach includes those who are in “the overall producing and marketing enterprise.”[1] In terms of businesses or other entities manufacturing products via 3D printers and putting those products into the stream of commerce, one would not expect to see a change from how product liability law applies to products manufactured by other means such as injection molding.  For example, if Company ABC manufactured Widget Y in its factory and then put Widget Y into the stream of commerce and someone is harmed by a defective Widget Y, a consumer may bring a products liability action against Company ABC and the law applies a strict liability standard.  If Company ABC made Widget Y by means of a 3D printer and put Widget Y into the stream of commerce and defective Widget Y hurt someone, we would still expect the consumer to be able to bring a product liability lawsuit and, again, strict liability would apply.  In other words, the mode of manufacturing and the fact that the product was made on a 3D printer does not change the legal analysis for the manufacturer’s liability.

However, what happens when the manufacturer of 3D printed product looks at the supply chain for purposes of offsetting or reducing liability?  Consideration of this question requires an understanding of how 3D printing works.  3D printing works when the printer reads code and then prints the product.  Models that contain the code that the printer uses can be bought or, depending on the product desired and a person’s skill level, can be created on one’s own.  Whether the persons and companies that create these models and their code might be subject to the strict liability of product law is an interesting question and the answer is, at this point, unclear.  The reason is twofold.

First, product liability law applies only to products.  The Third Restatement of Torts defines “products” as “tangible personal property distributed commercially for use or consumption.”[2]   On the other hand, the Restatement identifies information in media, like the information in books, as intangible personal property.  Courts have found that, under the Uniform Commercial Code, mass-marketed software is a “good” while software developed for a particular consumer has been held to be a “service.”   How courts will categorize models and code for 3D printing undoubtedly will be something we will see play out in the future and an issue we will watch and continue to discuss on this blog.

The second issue arises from the fact that it may be hard to pinpoint where in the process the defect occurred and thus difficult to determine who along the supply chain is liable.  For example, was there a defect in the digital design, in the digital file, or perhaps in human error in implementing the digital design?  The point at which the defect occurred could determine whether (and to whom) product liability law applies.

Another important consideration for businesses is the rise of the at-home printing enthusiast. As the Smithsonian Magazine put it, 3D printing technology offers the promise of “a factory in every home.”  What does this mean in terms of product liability law and why should a typical manufacturer care? Taking the second question first, in terms of why manufacturers should care, given the rise of online start-up businesses and the proliferation of competition from websites like Etsy, from a business perspective it is important to know what competition is in the marketplace and what legal risk the competition faces versus what you as a manufacturer may face.  In terms of what types of product liability considerations the home user faces, consider the following two scenarios which illustrate impact on an individual user.

Paul Parent has a child in elementary school and as part of a school fundraiser he decides to sell bag clips (like the kind used to seal a bag of potato chips) with the school’s name on them.  In scenario one, Paul orders the clips from an online manufacturer (who may or may not use a 3D printer) and a person is injured when a defective clip breaks and hits the user in the eye.  The injured person could sue the manufacturer under product liability law and the manufacturer would be subject to a strict liability standard.[3]  Similarly, that manufacturer could attempt to turn to others in the supply chain to offset liability.

Next, imagine a second scenario where instead of buying those bag clips from a manufacturer, Paul decides to print them at home on his 3D printer.  Again, one of the bag clips is defective and breaks injuring someone.  Assuming manufacturing these bag clips is a rare or occasional event for Paul Parent such that he does not qualify as a commercial seller, any action brought by the injured party against Paul Parent for his defective clip would not be a product liability action subject to strict liability.  But, if a product liability suit will fail against an individual who is casually manufacturing products on a home printer, is there some other entity against whom it will succeed or is it possible that we will see an overall decrease in the cases to which product liability law applies?  Stanford University Professor Nora Engstrom in her article 3-D Printing and Product Liability: Identifying the Obstacles[4] has opined that the answer is “maybe” and considers the possibility of 3D printing making product liability suits obsolete.

While it’s too early to tell how these scenarios ultimately will play out, it is important to recognize the product liability issues that will arise as 3D printing becomes more wide spread and continues to infiltrate the market.  The Product Liability Prevention and Defense blog is here to help you navigate these new and exciting waters.