As mandated by Section 212 of the Consumer Product Safety Improvement Act of 2008, the Consumer Product Safety Commission created a publicly accessible and searchable database allowing consumers to submit reports about various products as of March 11, 201l.  This database, found at www.saferproducts.gov, supplements the Commission’s existing publicly accessible and searchable databases – the National Electronic Injury Surveillance System (NEISS) database, which collects data from hospitals on injuries associated with particular consumer products.

The new database, though intended to provide consumers timely information about potentially unsafe products, has been widely criticized for its accuracy issues and the burden it places on manufacturers.  No evidence or proof is even required for a consumer to submit a complaint about a product.  Rather, the consumer must merely click a button stating his or her belief that the information reported is true and accurate to the best of the consumer’s knowledge.  After the report is posted, manufacturers have 10 days to respond.  

The hearsay and reliability issues on the admissibility of such information contained in this database are apparent.  However, judging by how plaintiffs currently use the NEISS database to advance lawsuits and given the courts' leniency in allowing such information to be admitted in one form or another, there is no doubt that manufacturers will face an uphill battle keeping such purported “evidence” out of the courtroom.  

Just recently, the federal district court in Jenks v. New Hampshire Motor Speedway, D.N.H., 1:09-cv-00205, 1/31/12, held that NEISS data was admissible in a product liability action involving a golf cart.  In that case, the plaintiff sued the defendant manufacturer of the golf cart, alleging failure to warn and other claims, when her husband was thrown from the rear of the cart and sustained serious head injuries.  The court denied the manufacturer’s pretrial motion to exclude the NEISS data, finding the database to be a public record as defined in an exception to the hearsay rule. The court also found that the information in the database met the exception’s trustworthiness requirement and that it was further admissible to show notice to the manufacturer of the danger of falling from golf carts. 

Though plaintiffs will surely attempt to draw parallels between the NEISS data and the contents of the new CPSC database, the accuracy issues inherent in the new database should warrant its exclusion from the courtroom.  Unlike the hospital reports which form the basis of the NEISS data, the reports in the new database can be submitted by anyone, including competitors, advocacy groups, and even attorneys attempting to advance their lawsuit by generating evidence.  Moreover, the CPSC explicitly disclaims the accuracy and completeness of the information contained in the new database.  Accordingly, this information is not only replete with hearsay, but it can be and should be considered inherently untrustworthy.

Another problem faced by manufacturers is that, unlike the NEISS data, they cannot claim lack of knowledge of the information contained in the new database. The CPSC is required to notify manufacturers every time a report is submitted about its product.  Therefore, any such defense will likely fail.  
 
Manufacturers are advised to keep themselves informed by registering  to receive reports submitted to the new database and to carefully consider how to respond to any inaccurate information, knowing that such information has the potential to end up in the courtroom.

William F. Auther is a partner in the Phoenix, Arizona office of Bowman and Brooke LLP where he has an active trial practice in product liability and business litigation and Mary M. Kranzow is a former associate at Bowman and Brooke LLP.

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As required by the Consumer Product Safety Improvement Act of 2008 (“CPSIA”), the Consumer Product Safety Commission published ANSI/SVIA 1-2007 as a mandatory consumer product safety standard for ATVs.  The standard became effective on April 13, 2009.  ANSI/SVIA has since issued a 2010 version of the standard.  The Commission issued a notice of proposed rulemaking on July 25, 2011 and is soon expected to issue a final rule amending the mandatory standard to reference the 2010 version. 

The Commission found that though most of the changes in the 2010 version are relatively minor, merely enhancing the standard’s clarity and consistency, the Commission thought it best to incorporate all of the provisions of ANSI/SVIA 1-2010 in order to avoid any confusion with two slightly different versions of the standard, the current mandatory standard and the revised voluntary standard. 

The most substantive of the changes noted by the Commission in the 2010 version are as follows: (1) elimination from the scope section of a provision calling for expiration of the definition and requirements for the Y-12+ youth ATV age category on July 28, 2011; (2) a change in how to calculate the speed for the braking test of youth ATVs; (3) a change in the force applied to passenger handholds during testing; (4) the addition of a requirement that youth ATVs shall not have a power take-off mechanism; (5) the addition of a requirement that youth ATVs shall not have a foldable, removable, or retractable structure in the ATV foot environment; (6) additional specificity concerning the location and method of operation of the brake control; (7) tightening the park brake performance requirement, by requiring the transmission to be in “neutral” during testing, rather than in “neutral” or “park”; and (8) the requirement that tire pressure information be on the label, when the previous requirement could be interpreted to allow tire pressure to be either on the label, the owner’s manual, or the tires. 

If the Commission issues a final rule, the 2010 standard will become effective 60 days after publication of the final rule in the Federal Register.  The rule will apply to all ATVs manufactured or imported on or after that date.

 

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