This interesting article by the folks at McGuire Woods appears on Bloomberg BNA's website.
The article discusses the five reprehensibility factors that the Supreme Court set forth in its BMW and State Farm opinions. The Supreme Court intended these factors to provide a basis for comparing different types of misconduct, but as the article points out, the factors were developed in cases involving economic torts. As such, they are ill-suited to product liability cases.
The article proposes an alternative set of factors that would permit more meaningful distinctions between the possible types of misconduct that could arise in products cases:
1. Whether in designing the product, the defendant attempted to comply with applicable government or industry safety standards;The article explains that these factors are not only tailored for products liability cases, but they are intended to include both aggravating factors and mitigating factors (in contrast to the Supreme Court's list which includes aggravating factors, i.e., justifications for a higher punitive damages award).
2. Whether the defendant engaged in safety testing;
3. Whether the defendant took steps to warn consumers about possible injury;
4. Whether the defendant affirmatively concealed its knowledge of defects known to cause injury;
5. Whether the defendant implemented a mechanism for receiving customer complaints and monitoring product safety;
6. Whether and how the defendant investigated product-related injuries;
7. Whether the defendant voluntarily took measures to make its product safer or issued new or additional safety warnings.