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:
- Despite apparent human to human transfer as early as the first week of December 2019 the Wuhan Municipal Health Commission declared on December 31, 2019 that, “[t]he investigation so far has not found any obvious human-to-human transmission and no medical staff infection.” See “Devastating Lies,” National Review (March 23, 2020), available at: https://www.nationalreview.com/the-morning-jolt/chinas-devastating-lies/
- China allowed five million people to leave Wuhan without screening during the New Year celebration. See “How It All Started: China’s Early Coronavirus Missteps,” The Wall Street Journal (Mar. 6, 2020), available at: https://www.wsj.com/articles/how-it-all-started-chinas-early-coronavirus-missteps-11583508932
- Chinese physician Dr. Li Wenliang discussed apparent coronavirus illnesses on social media in December 2019 pled guilty to a misdemeanor for spreading rumors. “This Chinese doctor tried to save lives, but was silenced. Now he has coronavirus,” CNN (Feb. 4, 2020), available at: https://www.cnn.com/2020/02/03/asia/coronavirus-doctor-whistle-blower-intl-hnk/index.html
- The Chinese government widely published on January 1 or 2 that the Wuhan police had taken “legal measures” against eight people who “published and shared rumors online” about the virus. “This Chinese doctor tried to save lives, but was silenced. Now he has coronavirus,” CNN (Feb. 4, 2020), available at: https://www.cnn.com/2020/02/03/asia/coronavirus-doctor-whistle-blower-intl-hnk/index.html
- On January 1, 2020, “after several batches of genome sequence results had been returned to hospitals and submitted to health authorities, an employee of one genomics company received a phone call from an official at the Hubei Provincial Health Commission, ordering the company to stop testing samples from Wuhan related to the new disease and destroy all existing samples.” “How early signs of the coronavirus were spotted, spread and throttled in China,” The Strait Times (Feb. 28, 2020), available at: https://www.straitstimes.com/asia/east-asia/how-early-signs-of-the-coronavirus-were-spotted-spread-and-throttled-in-china
- A Chinese medical doctor who asked others to wear masks was accused of spreading rumors. “How It All Started: China’s Early Coronavirus Missteps,” The Wall Street Journal (Mar. 6, 2020), available at: https://www.wsj.com/articles/how-it-all-started-chinas-early-coronavirus-missteps-11583508932
- President Trump, who has been criticized for his delayed response to the virus domestically, has repeatedly accused China of attempting to cover up the outbreak and suggested that the virus could have been contained if the Chinese Communist Party had been more transparent to begin with. “Trump Steps Up Efforts to Blame China for the Coronavirus,” The Hill (May 4, 2020), available at: https://thehill.com/homenews/administration/496047-trump-steps-up-effort-to-blame-china-for-coronavirus
- Secretary of State Mike Pompeo continued with his ongoing criticism of China citing a lack of transparency during the early stages of the Coronavirus outbreak. During a press conference at the State Department, Secretary Pompeo blamed China’s lack of transparency for the deaths of hundreds of thousands of people around the world. “Pompeo Accuses China of Withholding Vital Information on Coronavirus.” The Washington Post (May 6, 2020), available at: https://wapo.st/3fjxJQO?tid=ss_mail
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.”