Weed and robots to alter liability landscape

Posted: March 1, 2018

Sea changes in society often bring big waves of litigation. There’s every reason to expect more of the same with the advent of legal cannabis, robot-driven surgery and driverless cars.

Sale of recreational cannabis is legal in a handful of states with more expected to follow, raising new product liability questions for sellers, regulators, insurers, and litigators. For instance, should cannabis be treated like liquor or be considered an unreasonably dangerous product?

“What is ‘unreasonably dangerous’ … is an open question as to cannabis,” writes Ian A. Stewart in the National Law Review. “Federal illegality has precluded the availability of long-term studies on the safety and efficacy of cannabis use.”

Product liability litigation will likely crop up around surprisingly potent edibles, he writes, as well as “the widespread use of lithium-ion vaporizers, pesticides, contamination by mold and fungus, breach of warranty claims, misrepresentation, label claims and other failure-to-warn theories, consumer complaints that allege deceptive practices and bodily injury claims resulting from intoxication.”

Stewart compares the nascent cannabis industry to that of dietary supplements, saying litigation cleaned up that industry and, for better or worse, put some companies out of business.

Surgery by robot

Have you heard of autonomous robotic surgery (ARS)? While robots have assisted surgeons for years, ARS would let surgeons stand back and let machines do the cutting, drilling or sewing. This change introduces a number of sticky legal issues, Chris Newmarker writes in Medical Design and Outsourcing.

For example, in traditional surgical settings, the doctor is the one to advise patients on risks. He or she constitutes a “learned intermediary” between the product and the patient. Will removing the doctor’s hands from the equation require robot manufacturers to warn patients of product risks?

And who’s responsible for a bum product? Unlike a scalpel, it’s tricky to define the “product” for product liability litigation purposes when you’re talking about a robotic system. Is the product hardware, software or both? And, Newmarker asks, if multiple companies collaborated to create the system, how does a manufacturer defend itself when the partners are pointing fingers at one another? It remains to be seen.

Cars driving you

Another autonomous technology, driverless cars, presents other concerns – so many, in fact, that the hype about the vehicles outstrips the reality. The technology isn’t ready for prime time and may not be for a while.

“The problem is that despite hugely impressive gains in autonomous technology, the last percentage points of progress towards 100% reliability are proving difficult to achieve,” writes Neil Winton in Forbes. “Other more prosaic hurdles loom, too, like regulation, insurance, legal liability, and the almost impossible moral and ethical decisions that need to be taken by the car’s artificial intelligence system in the event of a crash, [for example] whether to mow down the line of children, pensioners, or self-sacrifice into the wall.”

Yikes.

Uncertainty around the viability of driverless cars doesn’t stop analysts from taking up the liability questions. Over time, experts expect to see driver liability shifting to product liability and new legal tests to go with it.

“To prove that an automated driving system performed unreasonably, an injured plaintiff would likely need to show either that a human driver would have done better or that another, actual or theoretical, automated driving system would have done better,” Bryant Walker Smith, a University of South Carolina law professor, told The Washington Post.

Smith, as the Post noted, envisions:

  • A potentially higher competence standard for automated vehicles. Consider a collision between two vehicles where a driverless car runs a stop sign. Should the “law-abiding” driverless car share liability for failing to avoid the careening outlaw car?
  • High damages in successful cases stemming from the factual certainty stemming from data stored in vehicles’ computers.

“The standard for reasonable safety is always increasing, and automated driving is no exception,” Smith told the paper. “The technologies that will amaze us in the next few years could seem laughably — or dangerously — anachronistic a decade later.”

That goes for surgery, too. As for pot, well, the future is hazier.


Ron Carey

As Chief Revenue Officer at Esquire Ron is highly focused on delivering premium service to Esquire’s legal clients so they can build a better bottom line. He has expertise in sales, marketing, product management and is extremely focused on creating value for clients through efficiency, innovation and strategic vision.