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You Can’t Say – “Made in China”

In today’s global economy, product liability defense counsel must consider the location a product was manufactured and be prepared to defend —including by seeking the exclusion of—decisions to manufacture abroad.  These considerations will only become more pressing during and in the wake of the COVID-19 pandemic, especially for products manufactured in China.

For a variety of reasons, the foreign origin of products has always been a potential distraction in product liability litigation.  The location a product was manufactured, however, simply is not a factor in the applicable legal analysis, especially if the claim is based on strict liability as opposed to a negligence standard.  See Restatement (Third) of Torts: Prod. Liab. § 1 (1998)(“[t]he concept of strict liability, which focuses on the product rather than the conduct of the manufacturer . . .”).  The product either deviated from specifications or it didn’t.  Instructions and warnings were either adequate or they were not.  A design either created an unreasonably dangerous condition or it didn’t.  The physical location where a product was conceived, designed or manufactured is not relevant to any of these questions.

In McFarlin v. New Hampshire Ins. Co., for example, evidence that a product was manufactured in a foreign country was held not to be relevant to the plaintiff’s product liability claim.  See No. CV 12-3033, 2016 WL 4197601, at *1–2 (W.D. La. Aug. 9, 2016).  Similarly, in Callahan v. Toys “R” US-Delaware, Inc., suggestions “that [the product] was of inferior quality by virtue of its foreign production,” were not permitted.  No. CV 15-02815-JMC, 2017 WL 219371, at *2 (D. Md. Jan. 19, 2017).  Simply put, it is difficult to conceive how the location a product was manufactured could legitimately tend to prove a product liability claim.

Even if such evidence is found to carry some probative value, however, the balancing scales of Rule 403 will normally operate to exclude this evidence.  See Indem. Ins. Co. of N. Am. v. Electrolux Home Prod., Inc., 520 F. App’x 107, 111–12 (3d Cir. 2013) (“probative value of the place of manufacture in China was substantially outweighed by a danger of unfair prejudice.”); Hershberger v. Ethicon Endo-Surgery, Inc., No. 2:10-CV-00837, 2012 WL 1067941, at *5–6 (S.D.W. Va. Mar. 29, 2012)(evidence that a product was made in Mexico inadmissible under Rule 403 analysis); Smith v. I-Flow Corp., No. 09 C 3908, 2011 WL 12627557, at *3 (N.D. Ill. June 15, 2011)(same).

Any jury pool today will have been exposed to reporting from major news outlets and leading U.S. politicians that is critical of China’s response to COVID-19.  Those news outlets reported:

In light of these statements and allegations as to China’s handling of COVID-19, courts will be hard-pressed not to find that the potential undue prejudice of “made in China” evidence outweighs any probative value it may have.

If “made in China” or other immaterial or scandalous allegations are asserted in initial pleadings defense counsel should consider a motion to strike under Rule 12(f).  See Alvarado-Morales v. Digital Equip. Corp., 843 F.2d 613, 617-18 (1st Cir. 1988) (finding that terms such as “concentration camp,” “brainwash,” “torture,” and “Chinese communists in Korea” are “repugnant words replete with tragic historical connotations” that “have no place in pleadings before the court”).  Having an early ruling on such allegations can be very beneficial.  If stricken, then certainty is added to the litigation going forward.  If not, it provides time to develop proof to properly address the allegations.

In the current COVID-19 environment what once may have been a minor point to consider—country of origin— should assume heighted significance. When confronted with defending a Chinese-made product, counsel should consider tackling the issue head-on and pushing for an order prohibiting plaintiffs from alleging or arguing that the subject product was “made in China.”