Lindenfeld & Tran on Strict Liability for 3D-Printed Medical Devices

Eric Lindenfeld & Jasper Tran have posted to SSRN Strict Liability and 3D-Printed Medical Devices.  The abstract provides:

Despite the strong promise that 3D printing holds for the future healthcare, there are critical concerns, and deep unknowns regarding the framework for potential tort liability. And while there has been only a single product liability lawsuit involving a 3D-printed product to date, there are tremendous concerns that 3D printing will present significant safety concerns for the first wave of consumers. While an application of traditional product liability principles may seem to be straightforward, those familiar with the framework realize that an application of those principles to 3D printing is complicated and unique. The question then exists – who is the manufacturer of a product created by a 3D printer as contemplated by the Restatement? Could a hospital be considered a manufacturer of a defective 3D-printed product or as “engaging in the business” of selling the product?

3D printing, in effect, will serve as one of the first technological advances to disrupt the product liability regime first envisioned, and eventually instituted by Justice Traynor. To avoid such an undesirable result, it is imperative that courts make a concerted effort to redefine the boundaries of product liability law to account for new technologies and to make room for liability to those supply chains which do not engage in traditional manufacturing. More specifically, the most realistic approach to the problem would be for courts to uniformly hold software designers responsible for the defects in 3D-printed products. Hospitals, or 3D printing manufacturers, should not be held strictly liable for any defect in the medical product.

Prior case law dealing with the development of product liability generally, and the line of cases which has established the denial of strict, product liability against software designers, support strict liability against software designers. Other circuit courts’ opinions that entertained the idea of holding software designers liable for defects in their products have had it correct. Ultimately, an imposition of strict liability against designers of software does not necessarily run against any of the policy considerations of strict liability and apportionment of fault, and will place the burden upon those who are in the best position to prevent the injury in the first place.