3D Printing: Product Liability, Professional Liability and Other Tort Aspects of the Burgeoning Industry.

• Author: Lipp, Jordan

AT THE dentist's office in the space of one visit, a dentist today can examine a patient, scan the patient's broken tooth, use computer mapping technology and 3D printing technology to create a crown, and then cement the crown onto the patient's tooth. This remarkable and efficient process was unheard of not too long ago, but now is common practice.

The burgeoning use of 3D printing, however, raises a host of liability issues. If the patient has an alleged complication related to the creation and placement of the crown, he or she may decide to sue the dentist. In such a circumstance, is this lawsuit based upon product liability law as the dentist manufactured and sold the allegedly defective product? Or, is the lawsuit based upon professional negligence law as the dentist is performing a dental procedure? And, what about the potential liability of the manufacturer of the 3D printer itself, the liability of the software company whose software was used to create the crown, and the liability of the manufacturer of the material used to make the crown?

This article will explore the legal ramifications of this emerging technology and some approaches to defending these lawsuits. Although 3D printing is being used in a myriad of industries, including architecture, automotive, food, and medical device, there is still a dearth of published case law on personal injury litigation involving 3D printed products. Cases involving 3D printed products face novel issues, which differ from those involving traditional products. This is due to manufacturing no longer being confined to the realm of large industrial plants. Rather, individuals (such as architects, chefs, dentists, doctors, engineers, etc.) can now arguably be the manufacturers of products themselves.

1. Background on 3D Printing and Its Use in the Courtroom

   Before addressing the liability implications of 3D printing, some background on 3D printing is warranted. 3D printing has been around for several decades, (1) but only achieved widespread use in the past decade. "3D printing is a process whereby three-dimensional solid objects are created through a process called additive manufacturing." (2) A 3D printer builds the product one layer at a time based upon a computer-aided design model, often by using a laser to "turn layers of powdered material into a three-dimensional solid object by sintering only particular areas of each layer of the powder, binding that area of the material together and creating the finished product as more layers of powder are added and sintered." (3)

   3D printing differs from the traditional and historical method of manufacturing, the "subtractive" manufacturing process. Subtractive manufacturing is the process "in which a final part is formed by subtracting from a solid block of material, through cutting, grinding, or other subtractive processes." (4)

   Many litigators are already familiar with 3D printed products from their use in the courtroom. 3D printing is already becoming ubiquitous in creating exhibits, especially demonstrative exhibits. Interestingly, the court decisions that have addressed such 3D printed exhibits have analyzed their use and admissibility in the same manner as any other exhibits. (5) Put another way, whether the exhibit was created by using additive manufacturing or subtractive manufacturing has not had any impact as of yet on a Court's ruling of admissibility. (6)

   There are some product liability cases involving allegations of the 3D printer itself causing injury as opposed to the products created by the 3D printer causing injury. (7) However, as 3D printing technology becomes more widespread, it is likely that there will be more lawsuits with allegations of defective products made by 3D printers. This leads to the "elephant in the room" question of the applicability of product liability law to such 3D printed products.

2. Product Liability Claims against Professionals Using 3D Printing Devices

   Most states have adopted strict liability in the context of lawsuits involving allegedly defective products. As the Restatement (Second) of Torts explains, sellers of "products"...