3-D Printing and Product Liability

The technology behind 3-D printing has actually been available for several decades, but as 3-D printers have started making their way into schools, homes, and businesses, the new users are having all kinds of creative ideas. According to the International Data Corporation, a Massachusetts-based market research firm, the 3-D printing market’s global revenue is expected to pass $15 billion this year and to reach $34 billion by 2020. Bloomberg reports that the top manufacturers of 3-D printers are Stratasys Ltd., a Minnesota firm, and 3-D Systems Inc., a South Carolina company.

Already, 3-D printing is literally changing the way things are made. The Food and Drug Administration in 2015 approved the first-ever 3-D printed drug: Spritam, by Aprecia Pharmaceuticals, for epileptic seizures. General Electric Aviation has introduced 3-D printed fuel nozzles for its jet engines and plans to print 40,000 of them by 2020. As it evolves, 3-D printing technology is certain to revolutionize almost every major industry and transform the way we live, work, and play in the future. The technological breakthroughs are coming rapidly.

To keep pace with those breakthroughs, the changes that are needed in the law are coming somewhat less rapidly when compared to hernia repair mesh complications or cancer caused by products such as Johnson & Johnson’s baby powder. Especially in last two decades, lawmakers have found it difficult to keep pace with technological developments. For example, in product liability cases involving 3-D printers and the products they print, determining what party is liable for injuries caused by a defective product is not easy. A number of different parties are involved in the production chain, and “pinning the blame” on any single party can be a daunting challenge.

HOW WILL THE LAW APPLY TO 3-D PRINTED PRODUCTS?

What product liability standard will apply to 3-D printed products? As more 3-D products are created, lawmakers and courts may have to adopt some new laws and establish some new legal principles. According to San Diego product liability lawyer Elliott Kanter, “3-D printing and product liability law is evolving in the legal arena. Most products are subject to state product liability and negligence law. That puts the manufacturer, distributor and retailer responsible for any injuries caused by the defective product.”

But what about the printer that creates a defective product? Attorney Kanter explains, “That is a whole new issue. Is the printer like a drill which put in the hole for the screw that failed, hence no liability? Or since it is using a program to build a product, what liability is there for an error from that program or using the program. Those and other questions are what the lawyers will develop in years to come.”

Essentially, 3-D printing works by designing or downloading a design for a 3-D model of an item and then sending the design to the printer, which “prints” successive layers of material onto a “build tray” to create a solid three-dimensional object. A wide variety of 3-D modeling software is becoming available. Top-of-the-line 3-D software costs thousands of dollars a year just for one license, but there’s also free open-source software and dozens of other options.

There are several types of 3-D printers and ways to print. The main differences are in the way the layers are built to create the final object. In 2010, the American Society for Testing and Materials developed a set of standards that classify 3-D printing methods into seven basic categories or types of printers and printing. Personal 3-D printing is getting cheaper and cheaper, with commercial 3-D printers ranging now from about $250 to $2,500.

Online, 3-D printing services have also emerged that will print and ship an object from a digital file that you upload to their website, and there are also companies offering 3-D printing services business-to-business to doctors, dentists, architects, engineers, designers, and inventors. Although the healthcare and aerospace industries have pioneered the use of 3-D printing, the technology is now being rapidly adopted by a variety of industries.

WHEN 3-D PRINTED PRODUCTS INJURE SOMEONE, WHO’S TO BLAME?

If a flaw or defect turns up in a 3-D printed product, and someone is harmed or injured because of that flaw or defect, who is to blame? The answer, of course, is “It depends.” A number of parties are involved before a flaw or defect turns up in a finished 3-D printed product. Those parties conceivably could include:

• the manufacturer of the printer
• the creators of the program, model, and file
• the creators of the polymer or other material used by the printer
• the distributors and retailers of any of these items
• a 3-D printing company or service
• the consumer who handles his or her own designing and/or printing

A party injured by a 3-D printed product will need to discuss the particulars of the case with an experienced product liability attorney. Given the multitude of parties who are involved before a 3-D printed product is completed, identifying the party who is actually responsible for the defect and injury may be a considerable challenge. A victim injured by a 3-D printed product is going to need some help.

WHAT IS “STRICT” LIABILITY?

A majority of states, including California, have “strict liability” laws that make manufacturers and suppliers liable for consumer products that are defective and unreasonably dangerous, regardless of who is at fault for any particular injury or harm. But strict liability laws may not be appropriate to some 3-D printing product liability cases. In all fairness, the manufacturers of 3-D printers probably should not be considered wholly responsible for the variety of things people will create that the manufacturers never intended or even dreamed of.

But it is impossible right now to predict how these cases will be addressed by the courts. As of 2016, there’s still very little case law or legislation that directly addresses 3-D printing. As San Diego product liability lawyer Elliott Kanter has suggested, printer manufacturers could be held to the same level of liability that drill manufacturers are held to if a defective object is made with their drills.

Holding 3-D printing services liable will also be a challenge because they are creating products based on designs from third parties. Every important new technology, from autos and airplanes to televisions and cell phones, faces an uncertain legal landscape when it first emerges. 3-D printing in that regard is no different. Although the process moves slowly, in just a few years, lawmakers and the courts will – more or less – clarify the legal issues involved with 3-D printing.