Editor’s Note: Last week I reported on the recent ruling in a case involving flesh-sensing technology in table saws. Although the source article for my story mentioned that the user was found 75 percent liable for his injury, the article did not specify why. In the article below, attorneys Neil L. Wilcove and Daniel A. Nicholson reflect on the court’s findings, offer more information on the original case, and provide insight about how all of this could potentially play out in the future. Chris Ermides, Senior Editor

Following a big win for plaintiff, William Anderson, against Ryobi and Homelite manufacturer, Techtronic Industries North America, Inc. in Florida last month, the internet has been buzzing on what lies ahead for table saw manufacturers and consumers (1). During trial Anderson argued that by neglecting to include flesh detection safety technology in their design Techtronic Industries was liable for the plaintiff’s injuries – including the amputation of three fingers. The jury was convinced, finding the defendant manufacturer 25% (Anderson was 75% negligent for removing the blade guard) liable for his injuries, leading to an award of damages. Significantly, the U.S. District Court denied the Manufacturer’s motion for judgment as a matter of law and new trial stating that data regarding flesh-detecting injury mitigation technology’s viability and availability was justifiably enough evidence to convince the jury of the manufacturer’s negligence.

This case, however, is just the most recent of many involving the implementation of skin-sensing technology on table-saws. In 2011 a jury awarded a Massachusetts man $1.5 million after he also successfully argued that defendant table saw manufacturers were negligent in not including flesh-detecting safety technology.(2) Again the argument relied on the practicality of including such safety technology, with the jury deciding it was cost efficient and feasible to utilize. Other cases have gone in saw manufacturers’ favor, including a case out of Utah, currently being appealed, where defendant Techtronic Industries North America finds itself in litigation against plaintiff Benjamin Fortune.(3) During the initial trial, upon defendant manufacturer’s motion, the court was unmoved by the plaintiff’s evidence that the defendant was negligent in not including flesh-detection technology as a fail-safe feature. In this case the court, not the jury, ruled that the lack of such technology didn’t render the manufacturer’s saw inherently and unreasonably dangerous and that an ordinary consumer could appreciate the danger of the saw despite its exclusion. This is not to say juries are immune from siding with Manufacturers: An Illinois jury in 2013 came back in favor of manufacturers Ryobi and One World Technologies after plaintiff claimed his saw had been designed defectively without flesh-sensing injury mitigation technology.(4)

From a legal perspective these results mean a couple of things. Each state has its own laws regarding strict product liability and negligence, so it is difficult to predict how future lawsuits will end, depending on the state a complaint is filed and the jury you are dealing with. On a micro level that means we may be seeing more lawsuits involving flesh-detecting safety technology.

On a macro level this could mean big changes for manufacturers in their production of table saws. Manufacturers of any product are legally held out to an “industry standard” when considering the safety of their products. This is defined generally as the knowledge of an expert in that product, including all the safety advances that may be available and viable to the product. For example if one manufacturer produces a vastly safer product than a competitor, it may open up the competitor to potential lawsuits – they knew a safer alternative existed, so why didn’t they implement it? The industry standard for any given product isn’t set in stone however, it ebbs and flows with the times as technology improves. In the legal world everything from consensus of independent experts, safety testing standards, manufacturer standards, or even indirectly, lawsuits, can influence what is “industry standard.” Hypothetically, if big manufacturers keep losing money to lawsuits in one state, they may respond by implementing flesh-detection technology in their saws. If enough big name manufacturers follow, the industry standard will change, and any that don’t may soon find themselves the target of injured consumers. Don’t think that this stops with manufacturers though. it is possible this trend could have a rippling effect: For example, it could change the practices of many associated industries. If the industry standard for manufacturers is that saws without flesh-detecting safety technology are too dangerous to sell to consumers, what about the contractor who requires his workers to use that now “old-school” saw?

Is this the proper course for the courts to take in regards to table saw safety? There is a recognizable downfall to courts requiring manufacturers to implement all advanced safety technology, especially when such technology increases costs. Juries are hard to control, but they can be reliable as to the changing times and there is faith that table saw manufacturers will respond to these recent lawsuits by innovating new ways to implement flesh-sensing safety technology in a cost effective manner.

(1) Anderson v. Techtronic Indus. N. Am., Inc., 613CV1571ORL40TBS, 2015 WL 7429060 (M.D. Fla. Nov. 23, 2015)

(2) Osorio v. One World Techs. Inc., 659 F.3d 81 (1st Cir. 2011)

(3) Fortune v. Techtronic Indus. N. Am., 2:13-CV-813 TS, 2015 WL 2201782 (D. Utah May 11, 2015) 4 Stollings v. Ryobi Techs., Inc., 725 F.3d 753 (7th Cir. 2013)

Neil L. Wilcove is a partner at Freeman, Mathis & Gary, LLP and Chair of the Construction Law and Commercial Litigation practice groups in which he represents contractors, subcontractors, owners, architects, engineers, and sureties. He handles payment disputes, delay claims, and construction and design defect cases. Mr. Wilcove also assists his clients in negotiating and drafting construction contracts.

Daniel A. Nicholson is an associate attorney at Freeman, Mathis & Gary, LLP (pending acceptance to both the Georgia and New York bar) practicing Construction Law and Complex Commercial Litigation in Atlanta, Ga.