Unavailable and Unaccountable: A Free Ride for Foreign Manufacturers of Defective Consumer Goods
In the last six months millions of foreign manufactured goods sold in the United States have been found to be defective, dangerous, and deadly. This requires consideration of both the jurisdictional issues involved in holding non-U.S. entities liable and an assessment of why these products made their way into the U.S. market. Part of the blames lies directly with so-called tort reform. Tort reform has suppressed vital market pressure and limited the corrective force of our civil justice system. With limited or no punitive damages, with no joint and several liability, with future litigation risk minimized, what else would one expect? Further, there are serious jurisdictional challenges involved in holding non-U.S. entities accountable. Under both the plurality and concurring opinion in Asahi, in personam jurisdiction requires an assessment beyond the mere or coincidental presence of the defendant's product in the stream of commerce. Given this requirement, many of the producers in question will be beyond the reach of U.S. courts. Even assuming jurisdictional hurdles are cleared, very real questions arise regarding the likelihood that evidence can be marshaled and that a judgment, if rendered against the manufacturer, can be enforced.
Andrew Popper, Unavailable and Unaccountable: A Free Ride for Foreign Manufacturers of Defective Consumer Goods, 36 Pub. Safety & Liab. Rptr. 219 (Mar. 2008)