3-D Printing – Game Changer for Products Liability Litigation?

3-D printing is emerging as a highly versatile, broad-based litigation technology. Who wouldn’t want to be able to quickly and efficiently create 3-D product representations for use at trial? But the idea of modeling products for trial is not new, so why is 3-D printing a potentially revolutionary capability and what other advantages can it provide.

Creating models of products or components has been a mainstay of the demonstrative exhibit realm for many, many years. I have been involved in several auto accident trials where Plaintiff and Defense counsel alike used miniature cars to show how a vehicle rolled or contacted an object in an accident sequence. I have even personally used models and actual parts of vehicles, from a quarter buck or section of a vehicle steering system to much smaller components such as a ball joint of a wheel assembly. 3-D printing, however, provides some advantages beyond what models or even actual products can provide.

In the case of my quarter-vehicle/quarter-buck demonstrative exhibit, while its size was realistic, it proved somewhat unwieldy at trial. Although we had measured the double door width to ensure it would accommodate the size of the exhibit, the support beam between the double doors was much more difficult to remove than we had realized. We still used the quarter buck during trial, but I conducted some of an expert’s examination in the hallway of the courthouse because of the issues involved in getting the buck into the courtroom. If we had a 3-D “printout” of the buck, we may have been able to much more easily slice the printout in half and move it into court.

This technology can also provide benefits in the areas of accuracy, scaling, and replication. In the early days of the 3-D printing, there were very few types of materials used to create the “printed” object.  Nowadays there are various polymer substances that can be used to provide form and function to the item. These various substances can provide a unique realism to the item. Given that the print job is completed from a digital CAD file with all of the design information, the final product is an extremely accurate representation of the actual object. Many of the authentication issues will be similar to those experienced with models, but 3-D printing, with its digital interface, allows for much greater precision in the final product.

Another key benefit of 3-D printing is the ability to scale an object. For example, in instances when a part, system, or component is very large, 3-D printing may provide an avenue to create a smaller version that can be used in court with a degree of accuracy and detail that may be unavailable in simply building a small model. Similarly, if an object is particularly small, 3-D printing may allow counsel to enlarge the object so it can be used more readily at trial. Finally, the ability to quickly and efficiently replicate and/or modify items for trial is significant. A trial advocate can present a 3-D printed object to the court for a preliminary ruling on admissibility. If the item is admitted “as is,” counsel can then have it reproduced numerous times for various record copies and use by the jurors. If some portions of the object are admitted while other portions are excluded, 3-D printing may provide a means to more quickly and efficiently modify the object for use at trial. The digital nature of 3-D printing provides much greater flexibility than traditional modeling techniques.

As with any new technology, however, there is the potential for new legal issues or at least refinements of old principles. For example, the materials that can now be used in 3-D printing may actually lead people to create usable products. What happens when a child’s toy breaks, and the parent goes on line, finds a design drawing, uploads it to a 3-D printer, and recreates the toy on their own.  What happens then if the child is somehow injured while playing with the “recreated” toy? Is there a design issue or a manufacturing issue and who will be liable?  What happens when people start to manufacture products at home for sale with 3-D printers and those products are then involved in injury-producing incidents? Who will be sued — the person who produced the product, the entity that produced the printer, or both?  Is it foreseeable that people may use 3-D printers in a home environment to create usable or salable products and is that what the printer manufacturer had in mind when it designed and developed the system? What type of disclaimers and product limitations will be necessary to protect against such uses.

Most of these questions are yet unanswered, but they lie at the heart of a burgeoning industry in the rapidly developing world of 3-D printing technology.