Section 212 of the Consumer Product Safety Improvement Act of 2008 (CPSIA) requires the Consumer Product Safety Commission (CPSC) to create and maintain a publicly accessible, searchable database of consumer product incident reports. This accessible database – – currently has a live date of March 11, 2011. After that date, consumers will be permitted to post an anonymous complaint about any consumer product in the database and will have the ability to upload photos, video or other media to go with complaint. Consumers are required only to click on a button that the information is true and accurate to the best of the consumer’s knowledge. No evidence or proof is required. Manufacturers will be given 10 days to provide a response – even though they will not even necessarily have information about the complaining consumer, should the consumer choose to remain anonymous. Then all of that information will be posted to the database.

Section 212 (a)(b)(5) states that the CPSC shall provide notice to users of the database that “the Commission does not guarantee the accuracy, completeness or adequacy of the contents of the database.” At best, what the database will represent is uncontrolled, unconfirmed hearsay. At worst, what the database might become is a method for consumer advocacy groups to populate a government database with false or misleading information, or for plaintiffs’ attorneys to populate the database with otherwise inadmissible information for use in individual lawsuits, class actions, and to bolster punitive damages claims.

Currently, the CPSC maintains the National Electronic Injury Surveillance System (NEISS), which collects data involving product-related incidents from hospitals and places them into a searchable database. Consider how plaintiffs use NEISS data in courtrooms.

In a 1993 case in Missouri, a risk analysis expert cited information he compiled from the NEISS database to extrapolate a total number of 938 injuries associated with Q-tips, as opposed to the 40 that were actually reported to the manufacturer. On this basis, a jury awarded $1,500,000 in compensatory damages and $20,000,000 in punitive damages. The verdict was reversed on appeal because the manufacturer was not held to have constructive knowledge of the information contained within the NEISS database.

But in a 1996 Louisiana case, NEISS database information was admitted to prove a manufacturer’s “knowledge or the reasonable availability of knowledge” of ‘dangerous qualities of its products, at the time the product left its control.”

In a 1993 Oregon Supreme Court case, NEISS database was admitted “for the limited purpose of notice” to the manufacturer, as an exception to the hearsay rule, with an admonition to the jury that it should not automatically assume that the government database is true and accurate.

Furthermore, unlike with the NEISS, database manufacturers will have actual knowledge of every complaint added to the database, because the CPSC will provide actual notice to the manufacturer every time a complaint is lodged. It is hard to imagine that if NEISS is considered sufficient and admissible to provide constructive notice of product issues, then the database would not be used in such a manner.

In a 2009 case in Georgia, a former CPSC employee served as an expert witness and testified that NEISS “collects information from designated hospitals for every emergency room visit involving an injury associated with consumer products” which then served as a basis for her assessment of a retailer’s recall and notice efforts associated with the toxicity of a product. One of the points here is that NEISS, while relatively unreliable, was at least reported objectively by individuals working in hospital emergency rooms.

By contrast, the database will have even less, if not zero reliability, as it can be populated anonymously by consumer groups with agendas, plaintiff attorneys trying to build a caseload as well as evidence against a manufacturer to maximize the value of that caseload, and also individuals who have personal axes to grind. There is no requirement that injury result, as with NEISS, or that injury be proven or shown by objective evidence. It is perfectly acceptable, as currently planned, to put a reported disappointment over a product’s performance right alongside a reported injury. This could be misrepresented as “two reporting events” of equal importance by expert witnesses on a macro-scale, even though that would not be the case if looking at individual cases.

The database will likely be populated quickly with information from private consumer advocacy groups. For example, is a consumer advocacy group who will be able to draw on its existing databases regarding testing that it claims to have conducted (the website claims 15,000 test results on over 5,000 common items). Without the ability to verify tests or information, this information from a consumer advocacy group would receive the imprimatur of the CPSC as a government entity. But it would not be a reliable source of consumer reporting events regarding products, as that imprimatur might suggest.

A similar source is U.S. PIRG (Public Interest Research Group) and the state PIRGs. U.S. PIRG has produced a “Trouble in Toyland” report for each of the past 24 years, and now has a webpage, facebook page, twitter account, iPhone® app for accessing the U.S. PIRG database and a widget for reporting to U.S. PIRG. The CPSC will follow this lead in the creation of the database and will make it accessible through a webpage, social media, twitter, flickr and widgets designed to create as much access as possible.

Even plaintiffs’ attorneys can use data gathered on 1-800-GOT-HURT numbers with respect to various products to create data and populate the database for their own use down the road. This is not an intended use of the database, but there are currently no plans to prevent this type of behavior, especially since the gatekeeper of this database is a button that the information is true and accurate to the best of the consumer’s knowledge. There is no limitation with respect to how many instances one individual can upload per day – a consumer group or plaintiff’s attorney could literally drive a given product from zero “reported events” to thousands of “reported events” in a single day if they can push that button. It remains to be seen whether CPSC would be able to do anything about a consumer advocate reporting “to the best of their knowledge” – which could be extremely limited in many instances.

Defendant manufacturers can of course argue that evidence of unrelated other events is irrelevant, unreliable hearsay, and in many cases highly prejudicial both in terms of the government imprimatur given to unverifiable consumer group data and likely video and photograph content. These arguments have worked in some courts with respect to the NEISS database, but as seen above, there are cases where these arguments have not worked. And given the CPSC notice to manufacturers of “reported events” it can remain a powerful tool for plaintiff attorneys to use in punitive damages arguments in instances where the NEISS database cannot.

Manufacturers can do a few things. One, manufacturers can contact the CPSC and provide input on the implementation of this database, individually or through trade organizations and provide actionable feedback to trim the usefulness of this database by plaintiffs’ counsel in court. Two, manufacturers can develop and implement procedures for dealing with notice of product “reported events” – both in terms of comment on each event back to the CPSC and in terms of how notice will be taken seriously and handled – the statute requires a response within 10 days of first notice from CPSC – before it becomes a central theme in a multi-million dollar punitive damages claim. Three, manufacturers are still in a position to lobby and change the CPSIA. This is one place where more guidelines and limitations are required to prevent unsubstantiated and unverified data points placed on a database from overwhelming good, safe products just in litigation costs/risk.