Public Policy Group partners Phil Goldberg and Cary Silverman filed an amici brief in the U.S. Court of Appeals for the Ninth Circuit in a case that will consider whether fertilizer sold in the 1930s and 1940s can be deemed “defective” under California product liability law based on modern scientific knowledge.
Here, the City sued the fertilizer manufacturer for the costs of a water treatment plant because the fertilizer allegedly contaminated the local water supply in a way that was not known or foreseeable at the time. The City is arguing that the risk-utility test is not moored to the time of use, but can include present-day scientific knowledge.
The amici brief explains that applying modern standards to a product made and sold more than 70 years ago would create unprincipled, unforeseeable liability. The purpose of the risk-utility test, nationally and under California law, is to determine whether the manufacturer could have feasibly prevented the alleged harm by designing a product differently at the time. Applying modern knowledge to yesterday’s products does not achieve this goal, offends constitutional due process protections against retroactive liability, and improperly makes manufacturers insurers of downstream hazards regardless of fault.
The brief was filed on behalf of the U.S. Chamber of Commerce, National Association of Manufacturers, The Fertilizer Institute, Croplife America, American Coatings Association, International Association of Defense Counsel, and Coalition for Litigation Justice, Inc.
The case is City of Pomona v. SQM N. Am. Corp., No. 18-55733 (9th Cir.).