In the ongoing effort by SawStop, LLC to make its patented flesh-sensing technology the industry standard for table saws, the State of California appeared poised to mandate “active injury mitigation technology” on all table saws sold in California by 2015. “Active injury mitigation technology” was defined in the proposed legislation as

technology to detect contact with, or dangerous proximity between, a hand or finger and the teeth of the blade above the table top of a table saw, and to prevent the blade from cutting the hand or finger deeper than one-eighth of an inch when the hand or finger approaches any portion of the blade above the table top at a speed of one foot per second from any direction and along any path.

The Table Saw Safety Act sailed through the California Assembly and passed out of the Senate Judiciary Committee.  However, when it went to the full Senate for a vote, it was amended.  This amendment effectively stalled the legislation.   The amended bill required “injury mitigation technology,” which is defined as

(a) “Active injury Injury mitigation technology” means technology to prevent or detect contact with, or dangerous proximity between, a hand or finger and the teeth of the blade above the table top of a table saw, and to prevent the blade from cutting causing severe injury to the hand or finger deeper than one-eighth of an inch when the hand or finger approaches any portion of the blade above the table top at a speed of one foot per second from any direction and along any path. Notwithstanding the prior sentence, active injury mitigation technology may be temporarily deactivated by a person so that a saw can cut material which would otherwise be detected as a person.

Significantly, the amended language required technology that will “prevent or detect” contact between a hand and the blade.  Arguably, existing guarding technologies, including blade guard assemblies, comply with the amended mandate of the legislation.  Likely for this reason, the bill was recently ordered inactive.

In 2011, the Consumer Product Safety Commission published an Advanced Notice of Proposed Rulemaking to solicit comments regarding whether flesh-sensing technology should be mandated on all table saws. If the proposed rules are adopted, the CPSC could take the rare step of mandating a patented technology, which at least one CPSC Commissioner has stated should be avoided, if possible.

The original version of California’s Table Saw Safety Act was being opposed by the Power Tool Institute, which argues that the Act, as originally proposed, would have effectively created a monopoly for SawStop and the mandated technology would make table saws too costly for consumers. (Anecdotally, one can compare the cost of SawStop’s table saws with other table saws.)  Although, while other flesh-sensing technology is reportedly being developed, there is some validity to the PTI’s claims given that SawStop has a significant number of active patents covering flesh-sensing technology on table saw blades.

SawStop’s flesh sensing-technology has already had an impact on table saw products liability law in the United States. In Osorio v. One World Technologies, Inc. and Ryobi Technologies, Inc., the First Circuit Court of Appeals affirmed a jury verdict for the plaintiff, who lacerated his hand on a contractor grade table saw that did not incorporate flesh-sensing technology. On initial review, Osorio’s design defect theory appeared simple – flesh-sensing technology was a feasible alternative design that would have prevented the injury. This design defect theory was primarily premised on the testimony of his expert witness, Dr. Stephen Gass. In response, the defendants made several valid arguments. First, the cost of incorporating the patented technology would make the proposition of manufacturing and selling table saws commercially unfeasible. Second, they argued that the technology could not feasibly be incorporated into smaller saws without increasing the weight of the saw because such small saws cannot absorb the force necessary to stop the spinning blade, thus defeating the purpose of smaller bench-top table saws. Third, there was evidence that the flesh-sensing technology could be triggered without actually touching the blade, particularly when cutting wet or pressure-treated wood. (Incidentally, submissions to the CPSC several years ago raised the concern that plastic hubs on the arbor shaft insulate the electrical current and could prevent the safety mechanism from triggering.) Despite these arguments, the jury sided with Osorio.  However, in August of this year Ryobi obtained a defense verdict in the Northern District of Illinois in a case very similar to Osorio.  In that case, Plaintiff Brandon Stollings alleged that his Ryobi table saw was defective because it did not, among other things, incorporate flesh-sensing technology.  The jury disagreed, finding that the table saw was not defective or unreasonably dangerous as designed without flesh-sensing technology.

While these issues are being litigated all over the country, in Wielgus v. Ryobi Technologies, Inc., also pending in the Northern District of Illinois, the plaintiff is aggressively pursuing conspiracy claims, arguing that the table saw industry conspired to avoid incorporating flesh-detection technology into their saws in an effort to avoid their collective liability for blade-contact injuries. The Court recently ruled on a number of motions in limine that will permit the plaintiff wide latitude in admitting evidence to support this theory.

If passed as originally proposed, The Table Saw Safety Act, would have forced manufacturers to make a choice: comply with the Act nationwide or pull out of the California table saw market. This is similar to the choice industry faced when California passed Prop 65, which mandates cancer warnings on a host of products. However, The Table Saw Safety Act or similar future legislation would be more onerous because it doesn’t simply require a new warning – it requires a complete redesign of existing table saws at significant expense to the consumer. It will understandably be too costly to design, manufacture, market and distribute one table saw for one state’s consumers and another for the rest of the country. Therefore, if such technology were to be mandated, manufacturers could be faced with the choice of exiting the table saw market altogether, or licensing patented flesh-sensing technology.  Nonetheless, manufacturers can expect that plaintiffs will continue to argue that table saws that fail to include flesh-sensing technology are defectively designed.

The debate over flesh-sensing technology will likely continue for years to come.  Questions will continue to be raised over whether consumers should be given a choice and permitted to purchase a less expensive table saw without flesh-sensing technology, if the patented technology increases the cost beyond the reach of many consumers. Moreover, time will tell whether the use of flesh-sensing technology will make users more cavalier and abandon best work practices, under the assumption that the technology will always protect them from a blade contact injuries.