This Internet Thing is Great, Isn't it, Hal? Product Liability in the Next 100 Years.

• Author: Rippee, Stephanie M.

I FALL into half of the readers that did not get Bill Anderson's reference to Hal in his introduction to this issue of the Defense Counsel Journal. I am no spring chicken. I was born in 1966 and have almost 30 years of law practice under my belt. But I was only two when 2001: A Space Odyssey came out, and I have a general aversion to all things science fiction. So, I appreciated Bill's explanation, as well as his invitation to predict some trends in the direction of product liability litigation in the next one hundred (or maybe twenty) years. I chose data security as the focus of my "predictions."

I am a math lover, a college accounting major, and briefly considered tax school. Despite these facts, I have done a surprising amount of product liability litigation over the years. I live in Mississippi, which was a notorious litigation hellhole for years before we had a little tort reform. As a young lawyer, I was engulfed by a tidal wave of mass tort product liability litigation that swept through the state, primarily in the area of drugs and medical devices (as opposed to asbestos, tobacco and a few other products that prompted mass tort tidal waves of their own).

Over the years, however, I have tried to maintain a balance of commercial litigation and product liability litigation in my practice. I have long had an interest in privacy issues which, in the past, normally involved economic losses and came up predominantly in my commercial cases. That appears to be changing. In the past 5-10 years, data privacy and security issues have exploded. They are impacting many areas of the law, including the world of product liability. The intersection of these two worlds is occurring primarily through what I call "smart products." I do not think it is rocket science (pun intended, Bill) to predict that issues arising from the use of smart products are going to reshape traditional product liability law and litigation in some ways over the next twenty (or maybe 100) years.

I want to back up and observe that as product liability law has developed over the past 100 years (with me witnessing almost thirty of those), the law seems to have done its job. Product liability law seems to have had the intended effect. Parties have been held accountable for unsafe products. Manufacturers, distributors and sellers have responded. Generally speaking, products seem safer today. I no longer see as many cases where a person loses a limb using a product that had inadequate safety guards, for example. Because of this, I think we have seen fewer "one off" cases. On the other hand, as Bill pointed out, we have seen a surge of mass torts, and many of them involve products we sometimes refer to as "unavoidably unsafe" or "inherently unsafe." They are good, safe products when used properly and accompanied by the proper warnings, but they cannot be made completely safe by virtue of their nature or function (e.g. drugs and guns). It seems to be easier for the plaintiffs' bar to make those good products seem "bad" in litigation. I wonder if mass torts involving smart products might become the next frontier for the plaintiffs' bar, whether that be in the form of "one off" cases or mass torts. It would not surprise me.

Technology seems to have played a key role in improving overall product safety. We now have smart products that can keep you from backing into another car or overdosing on medication. That is an upside of...