As mandated by Section 212 of the Consumer Product Safety Improvement Act of 2008, the Consumer Product Safety Commission created a publicly accessible and searchable database allowing consumers to submit reports about various products as of March 11, 201l. This database, found at www.saferproducts.gov, supplements the Commission’s existing publicly accessible and searchable databases – the National Electronic Injury Surveillance System (NEISS) database, which collects data from hospitals on injuries associated with particular consumer products.
The new database, though intended to provide consumers timely information about potentially unsafe products, has been widely criticized for its accuracy issues and the burden it places on manufacturers. No evidence or proof is even required for a consumer to submit a complaint about a product. Rather, the consumer must merely click a button stating his or her belief that the information reported is true and accurate to the best of the consumer’s knowledge. After the report is posted, manufacturers have 10 days to respond.
The hearsay and reliability issues on the admissibility of such information contained in this database are apparent. However, judging by how plaintiffs currently use the NEISS database to advance lawsuits and given the courts' leniency in allowing such information to be admitted in one form or another, there is no doubt that manufacturers will face an uphill battle keeping such purported “evidence” out of the courtroom.
Just recently, the federal district court in Jenks v. New Hampshire Motor Speedway, D.N.H., 1:09-cv-00205, 1/31/12, held that NEISS data was admissible in a product liability action involving a golf cart. In that case, the plaintiff sued the defendant manufacturer of the golf cart, alleging failure to warn and other claims, when her husband was thrown from the rear of the cart and sustained serious head injuries. The court denied the manufacturer’s pretrial motion to exclude the NEISS data, finding the database to be a public record as defined in an exception to the hearsay rule. The court also found that the information in the database met the exception’s trustworthiness requirement and that it was further admissible to show notice to the manufacturer of the danger of falling from golf carts.
Though plaintiffs will surely attempt to draw parallels between the NEISS data and the contents of the new CPSC database, the accuracy issues inherent in the new database should warrant its exclusion from the courtroom. Unlike the hospital reports which form the basis of the NEISS data, the reports in the new database can be submitted by anyone, including competitors, advocacy groups, and even attorneys attempting to advance their lawsuit by generating evidence. Moreover, the CPSC explicitly disclaims the accuracy and completeness of the information contained in the new database. Accordingly, this information is not only replete with hearsay, but it can be and should be considered inherently untrustworthy.
Another problem faced by manufacturers is that, unlike the NEISS data, they cannot claim lack of knowledge of the information contained in the new database. The CPSC is required to notify manufacturers every time a report is submitted about its product. Therefore, any such defense will likely fail.
Manufacturers are advised to keep themselves informed by registering to receive reports submitted to the new database and to carefully consider how to respond to any inaccurate information, knowing that such information has the potential to end up in the courtroom.
William F. Auther is a partner in the Phoenix, Arizona office of Bowman and Brooke LLP where he has an active trial practice in product liability and business litigation and Mary M. Kranzow is a former associate at Bowman and Brooke LLP.