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Will power tool makers' liability change?


While the Consumer Product Safety Commission's possible requirement for table saws to include flesh-sensing technology appears likely to be implemented, the extent to which product liability exposures will increase remains to be seen.

“I don't think it's going to increase litigation,” said C. Barry Montgomery, partner at Williams Montgomery & John Ltd. in Chicago and co-chair of the law firm's commercial litigation practice. “It's going to be an issue with respect to whatever the standard is,” said Mr. Montgomery, who represents manufacturers of power tools.

If the rule becomes mandatory, “manufacturers are going to have to comply with it,” he said. “I'm sure there will be lots of commentary and discussion before it becomes a standard. It's a long process.”

Tualatin, Ore.-based table saw manufacturer SawStop L.L.C. has patented technology that almost instantaneously stops a table saw blade upon contact with flesh.

There also are competing technologies that have yet to be brought to market, Robert S. Adler, a CPSC commissioner, said in a statement. “We write performance standards and leave it to manufacturers to decide how to meet them,” he said. “Simply writing a performance standard doesn't automatically guarantee that other technologies will find their way to the market, but I remain hopeful that they will.”

But if the technology is out there, it could increase the risk of product liability claims, said George Nassif, director of business development for the Americas for Aon Global Risk Consulting, a unit of Aon Corp. in New York.

“Under tort law, if there is some kind of technology or some kind of reasonable way of preventing such an injury, it definitely would raise the possibility for product liability claims,” he said.

“It will be one of the angles the plaintiffs bar will definitely be looking at as a way to sue the manufacturer or the owner of the table saws,” said Mr. Nassif, who s aid table saw makers and distributors typically retain much of their liability exposure.

Product liability litigation for table saw makers varies by state as different standards and evidentiary rules are applied, said Robert A. Roth, partner at law firm Reed Smith L.L.P. in Chicago.

But because of the severity of injuries from table saw accidents, product liability litigation is highly likely for table saw manufacturers regardless of federal regulations on safety standards, he said.

“If someone were to be injured by a table saw, with or without the federal regulations, it's likely they're going to bring a lawsuit,” said Mr. Roth, who represents manufacturers in product liability cases. “So I don't really see that there would be an increase in the number of claims.”

Katherine Cahill, New York-based global product risk practice leader for Marsh Risk Consulting, said flesh-sensing technology should decrease product liability claims, “but it will increase the cost of the product.”

A key concern for table saw manufacturers is the risk of product recalls, Ms. Cahill said.

“More mandatory requirements around a safety issue typically translate to more recalls in the industry,” she said.

CPSC's mandatory standard for the inclusion of safety technology in table saws may be extended to other power tools, some industry experts contend.

Mr. Nassif of Aon said it depends on SawStop's success rate. “If the success rate is significant, it could result in an extrapolation into other type of equipment,” he said.

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