Evidence of Compliance

Abstract

In a products liability case, should evidence of compliance with regulatory safety standards be admissible to show absence of a design defect? The longstanding, traditional answer to the question is “yes,” and the Third Restatement of Torts agrees: compliance with a safety statute or regulation is generally admissible and probative, but not dispositive, on the question of design defect. But in late 2023, the Pennsylvania Supreme Court went the other way, broadly declaring compliance evidence inadmissible in products liability cases. And while the state is in a decided minority, it is not the only one to do so. However, cases that address the issue often fail to explain satisfactorily the way in which compliance evidence may or may not be relevant to the question of design defect.

In this Article, written for the 30th Annual Clifford Symposium on Tort Law & Social Policy, I suggest that compliance evidence may be broadly relevant in three ways: first, as evidence of the reasonableness of the defendant’s conduct (not typically at issue in a “strict” products liability case), second, as expert-like evidence on the issue of whether the product is unreasonably dangerous, and third, as indirect evidence of a specific fact underlying the agency’s decision. The second possibility, which I think is the best reading of the dominant rationale for admitting the evidence, raises several problems. I suggest that under that theory of relevance, the admissibility of compliance should depend on the answer to two questions. The first is a question of state policy: is the ultimate determination of design defect a question where the jury should necessarily exercise its own judgment, as opposed to deferring to someone else’s weighting? The second is a question of evidence: has the proponent given the jury sufficient ability to ascertain the probative value of the compliance evidence? Some states, then, may reasonably wish to exclude compliance evidence entirely. Others should simply take care when admitting it.

Keywords: evidence, relevance, products liability, design defect, regulation, torts