Extracted from Law360
Three-dimensional printing (“3-D printing”), also known as additive manufacturing, has been in existence since the 1980s[1], but only recently has the technology gained industry’s attention. Lux Research expects that this $3 billion industry will quadruple within the next decade to $12 billion[2] as more companies begin 3-D printing their own products. In fact, the New York Times has even predicted that 3-D printers will “become a part of our daily lives ... much sooner than anyone anticipated.”[3]
Automobile companies are currently some of the most frequent users of this relatively novel technology. Due to the sheer number of parts that need to be designed and manufactured in a modern automobile, original equipment manufacturer (OEM) automobile companies and first tier suppliers are using 3-D printing for a whole variety of testing and prototyping functions. 3-D printing allows automobile manufacturers to “increase research and development efficiency and reduce product-to-market time delivery.”[4] Most OEM companies use 3-D printers in some form since it is often the most economical and efficient way to manufacture multiple styles and versions of a part without needing to make tooling and molds for each component.
But while testing and prototyping is currently the most common use of 3-D printing by automobile manufacturers, it is not the only use. Some automobile companies are already using 3-D printers to manufacture actual component parts. Ford touts its use of 3-D printing noting that it has used the technology to print the engine cover for the new Mustangs, engine components for the Fusion, and the exhaust manifolds for the F-150 to name a few.[5] Luxury cars are even making use of the technology. According to one commentator, “The next-generation Mercedes-Benz S class coming in 2018 could have printed trim pieces such as air vents and speaker grilles.”[6] Taking this model to the next level, one company has built an entire car using 3-D printing[7], and some individuals, including Jay Leno, use 3-D printing to print parts for classic cars whose parts are no longer available.[8]
Applying Old Strict Product Liability Concepts to Novel Technology
The emergence of new technology always pushes and challenges the existing legal landscape as courts consider how novel technology will fit within the policies and reasons behind the law. A lot of recent articles have focused on how 3-D printing may require changes and adaptations of various areas of intellectual property law (such patent enforcement and copyrights)[9], however, only a handful of recent articles have addressed the potential product liability pitfalls with 3-D printing.[10]
Under current strict liability regimes, as encapsulated by the Third Restatement of Torts, “[o]ne engaged in the business of selling or otherwise distributing products who sells or distributes a defective product is subject to liability for harm to persons or property caused by the defect.”[11] According to the Restatement, such strict liability will “not apply to a noncommercial seller or distributor of such products ... [but] it is not necessary that a commercial seller or distributor be engaged exclusively or even primarily in selling or otherwise distributing the type of product that injured the plaintiff, so long as the sale of the product is other than occasional or causal.” As an example, the Restatement cautions that “a service station that does mechanical repair work on cars may also sell tires and automobile equipment as part of its regular business. Such sales are subject to the rule in this Section.”
Most of the cutting-edge questions about how strict liability schemes will ultimately conflict with the explosion of 3-D printing turn on how the technology may alter the traditional definition of a “commercial seller.” Obviously, 3-D printing being used by OEM manufacturers and/or parts suppliers will not materially change those companies’ liability risk since each is already engaged in the business of selling and/or distributing automobile products. However, there are many unanswered questions in terms of how strict liability might be applied outside this established automotive manufacturing group.
What about Jay Leno if he uses 3-D technology to design and print a replacement or custom part for a friend and charges for the cost of materials? Is he strictly liable for any defects in the design and manufacture of the product? Is he is a “seller” or merely a user of the product? What about all of the shade tree or classic car restoration fanatics who now have the ability to customize and swap fabricated parts with friends and neighbors? The short answer is that if someone is injured by a defect or failure in one of these parts that is designed or fabricated by a 3-D printer, a court could very well apply an aggressive strict liability theory and narrow the traditional separation between a product seller and a product user. This is especially true as 3-D technology continues to grow and expand to venues and individuals outside of the traditional large auto manufacturer space. While 3-D printing brings the once prohibitively expensive parts manufacturing process inside the garage — it also allows strict liability to creep in the back door as users of the technology transform into commercial product sellers.
[1] http://www.pwc.com/us/en/technology-forecast/2014/3d-printing/features/future-3d-printing.jhtml.
[2] http://3dprint.com/18633/3d-printers-manufacturing.
[3] http://bits.blogs.nytimes.com/2013/02/17/disruptions-3-d-printing-is-on-the-fast-track.
[4] http://news.thomasnet.com/imt/2014/10/29/can-3d-printing-make-economical-automotive-parts.
[5] https://media.ford.com/content/fordmedia/fna/us/en/news/2013/12/12/ford_s-3d-printed-auto-parts-save-millions--boost-quality.html.
[6] http://www.autonews.com/article/20141027/OEM06/310279987/auto-industry-uses-3-d-printing-heavily-in-product-development.
[7] http://www.cnet.com/news/local-motors-strati-is-the-worlds-first-3d-printed-car/.
[8] http://www.popularmechanics.com/cars/jay-leno/technology/4320759.
[9] See e.g., http://www.law360.com/articles/507087/a-new-dimension-in-ip-law-3-d-printing and http://www.law360.com/articles/538090/catch-me-if-you-can-auto-parts-in-the-era-of-3d-printing.
[10] Lucas S. Osborn, Regulating the Three-Dimensional Printing: The Converging Worlds of Bits and Atoms, 51 San Diego L. Rev. 553 (2014); Nora Freeman Engstrom, 3-D Printing and Product Liability: Identifying the Obstacles, 162 U. Pa. L. Rev. 35 (2013).
[11] RESTATEMENT (THIRD) OF TORTS: PRODS. LIAB. § 1 (1998).