- The Washington Times - Wednesday, October 4, 2000

When an airliner crashes or a car breaks down, we all want to know what happened and why. Most of the time, the cause is the result of an unforeseen technical glitch. No one is to blame in the sense of deliberate malice or negligence. To threaten those who design and build things with criminal prosecution if their creations ever malfunction is not only grossly unfair, it would cause a great many inventors, designers and builders to think twice before putting a new product on the market.

Yet, that is precisely what may happen if a bill introduced last week by Republican Sen. John McCain becomes law. S. 3059 (and its companion bill in the House, H.R. 5164) would federalize and criminalize product liability laws, so that the manufacturer of a given product could be prosecuted for "knowingly" introducing a "defective" product or component into the marketplace.

Mr. McCain's legislation is targeted specifically at the automobile industry in the wake of controversy over whether Ford or Firestone is responsible for deaths related to tires that have since been recalled. The bill would make it a federal crime subject to a 10-year prison term to "knowingly and willfully introduce a motor vehicle or motor vehicle equipment into interstate commerce with a safety-related defect" that could injure or kill someone. The House bill is much broader and would affect all types of manufacturing, making it a federal crime to manufacture and sell knowingly any product "dangerous to human life and limb beyond the reasonable and accepted risk with such or similar products lacking a flaw."

The problems with Mr. McCain's legislation are legion. Among the obvious problems: What constitutes "knowingly" introducing a "defective" product? What is a "reasonable and accepted risk"? These terms are immensely subjective and open to wide interpretation and manipulation by trial lawyers eager to cash in on problems that may have nothing to do with willful negligence for which, incidentally, there are pre-existing criminal remedies.

Under existing product liability law, when it becomes clear there is a problem, the company at issue has every incentive to find the source and fix it. The best example is the airplane industry. When an airliner crashes, there is an immediate and usually quite open, cooperative search for the causes; interviews are done, records are checked. Part of the reason for this openness and give and take is the absence of the threat of criminal prosecution; it is a civil matter. Restitution will be made to the extent possible but sending people to jail for unforeseen and therefore basically innocent errors is not part of the picture yet.

But under Mr. McCain's proposal, in the above example, the airplane manufacturer, its employees and others on down the "food chain" could be criminally prosecuted. Every incentive to share information, to deal frankly with investigators, evaporates.

There is a saying in the legal profession that hard cases make bad law. The Firestone/Ford tire fiasco and its fallout is an object lesson in the truth of this axiom. The pressure to "do something" is proving too hard for politicians such as Mr. McCain to resist even if the end result will do nothing to improve public safety, and may even make matters worse.

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