The state of the union.

Treats to the consumer abound in the era of tort "reform." Throughout the country, concern for consumer safety is taking a back seat as state legislators consider "reform" measures designed to protect corporate profits.

The arguments for "reform" are founded on a variety of baseless theories--there is a litigation explosion" in the courts, "reform" legislation will increase U.S. business productivity and competitiveness, and companies are going bankrupt because they cannot afford to defend against frivolous lawsuits. While the facts alone refute these myths, consumers are nevertheless being abandoned by state legislators unwilling to stand up for consumer rights. If the pattern continues, the result will be a dangerous decrease in Americans' safety and an elimination of corporate accountability.

Contrary to some reports, products liability is not causing a litigation explosion. According to the National Center for State Courts (NCSC), a nonpartisan institution, products liability cases are not clogging state courts, where most of these cases are filed. In 1993, only 1 million of the 14.6 million civil cases filed in state courts were tort cases,1 and only 4 percent of those were products liability cases.(2)

Businesses suing businesses, not consumers seeking compensation through products liability litigation, account for a greater portion of the caseload. According to the NCSC, contract cases are more prevalent in both filted and general jurisdiction courts than all tort cases combined.(3) Studies conducted by individual states confirm this. A 1995 study in Illinois, a state targeted for products liability "reform," showed that the number of business lawsuits stemming from contracts in that state outweighed tort filings by seven to one.(4)

In spite of these overwhelming statistics, the corporate world is continuing its push to institute products liability "reform" in the states.

Damaging Caps

Capping noneconomic and punitive damages is a favorite proposal of "reform" proponents. They say that capping these damages will reduce court caseloads, but this is not true.

Damage caps severely limit the rights of consumers injured by defective products. Yet, 12 states have imposed some type of cap on noneconomic damages that applies to products liability actions, and 19 states currently cap or prohibit punitive damages awards.(5) [See the accompanying chart.]

Proponents of punitive damages caps contend that without them innovation is stifled. The opposite, however, is true. U.S. products are purchased the world over because they are the safest products available.(6) Even though punitive damages are rarely awarded,(7) the threat that they can be awarded often encourages companies to remove dangerous products from the market. The Dalkon Shield intrauterine device (IUD) is an excellent example of this.(8) After eight punitive damages verdicts, A.H. Robins recalled the Dalkon Shield.

Punitive damages caps allow wrongdoers to calculate their potential liability as a cost of doing business, and they remove the deterrent effect essential in changing behavior. The Ford Pinto is a sad illustration of this.

Because the Pinto's fuel system was located too close to the rear bumper and lacked critical safeguards, a minor accident could cause the car to burst into flames. It was discovered during litigation that Ford had conducted a cost/ benefit analysis and concluded it was not cost-effective to make lifesaving design changes. The company concluded it made better business sense merely to pay damages to injured plaintiffs than to solve the problem and save lives.(9)

Caps on noneconomic damages can have the same effect on corporate decision making. An injured consumer's compensation for pain and suffering, disfigurement, and other noneconomic loss (for example, loss of fertility, loss of hearing and eyesight, scarring from injuries) would be limited to the amount of the cap (the figure most often used in the United States is $250,000) even if the injured party has to endure a lifetime of physical pain and emotional trauma. Through caps, wrongdoers escape their responsibility to the consuming public, and injuries, no matter how severe, become merely another entry on the balance sheet.

The usual justification given for noneconomic damages caps is the need to hold down costs--an example of how corporations are more concerned about the bottom find than they are about their responsibilities to deliver a safer product. Yet, products liability costs account for a minuscule part of corporate expenses.(10)

Caps on noneconomic and punitive damages were enacted in several states during the 1995 legislative session, and the trend continues.

The Illinois legislature this year passed a $500,000 cap on non-economic damages for all tort actions, and it capped punitive damages in all tort actions at three times economic damages.(11) The Indiana legislature capped punitive damages for all tort actions at the greater of either three times actual damages or 50,000.(12) A new North Carolina law has capped punitive damages at either $250,000 or three times compensatory damages(13) and New Jersey capped punitive damages at the greater of either $350,000 or five times compensatory damages.(14)

In Texas, punitive damages for all tort actions were capped at the greater of either $200,000 or two times actual damages, plus up to $750,000 of a non-economic damages award.(15) The Oklahoma legislature enacted a complicated three-tiered cap on punitive damages.(16)

The Delaware and Maine legislatures were more receptive to consumers' concerns. In Delaware, there was a failed attempt to limit punitive damages to the greater of either $250,000 or three times economic damages. Maine defeated a proposal that would have placed a $250,000 cap on non-economic damages. In a joint resolution in the Wyoming legislature, an amendment that would have allowed lawmakers to consider imposing a limit on noneconomic damages in civil actions was defeated.

The Michigan legislature stalled a products liability bill capping noneconomic damages at $280,000 in cases where there was no claim of death or loss of vital bodily function. In cases in which these were claimed, the cap would be $500,000. The fight is not over, and the bill has been taken up again in the current House session. More changes to products liability and joint liability laws are expected as this issue goes to press.

The Alaska legislature facts a major "reform" bill that was carried over to the next session, which begins in January 1996. Among the proposals in the bill is a cap on punitive damages of either $300,000 or three times compensatory damages, whichever is the greater. A $300,000 cap on non-economic damages is also proposed.

Another area of concern related to damages caps is the movement in the states to raise the burden of proof for an award of punitive damages to clear and convincing evidence. A heightened burden of proof makes it extremely difficult, and in some cases impossible, to recover punitive damages from manufacturers who recklessly market unsafe products. Stringent damages guidelines will enable corporations to more easily skirt the results of their negligent actions by avoiding the penalty.

Yet, many states this year have considered increasing the burden of proof required in punitive damages cases. The 1995 Oklahoma legislation capping punitive damages creates a three-tiered burden of proof for graduated caps from clear and convincing evidence of the wrongdoer's reckless disregard to clear and convincing evidence of the wrongdoer's intent and maliciousness.(17)

In Wisconsin, the legislature raised the standard of conduct required for punitive damages to maliciousness or intentional disregard.(18) Texas law now requires plaintiffs to present clear and convincing evidence of the defendant's fraud or malice before on award of punitive damages can be made.(19)

In North Carolina, the law requires clear and convincing evidence of the defendant's fraud, malice, or willful and wanton misconduct.(20) In New Jersey, new legislation requires clear and convincing evidence of the defendant's actual malice or wanton and willful disregard of safety.(21)

In Delaware, however, there was an unsuccessful proposal that would have raised the burden of proof for punitive damages to clear and convincing evidence of the defendant's specific intent or flagrant disregard of safety. The Virginia legislature rejected a bill that would have required a clear and convincing standard in cases seeking punitive damages.

Shifting the Risk

The principle that an innocent person should not be forced to pay for another's wrongdoing is being "distorted"(22) in the states to justify modifications of joint and several liability laws. Negligent wrongdoers are being absolved of responsibility, while injured consumers are being forced to bear the burden of their injuries. Yet, the "risk that one or more joint tortfeasors might be insolvent, immune, or otherwise unable to pay its share should fall, in fairness, on the remaining wrongdoers rather than on the plaintiff."(23)

For example, between 1983 and 1988, more than 25,000 patients received synthetic jaw implants manufactured by Vitek, Inc. The patients later developed temporomandibular joint (TMJ) dysfunction and filed products liability suits against Vitek and medical negligence claims against the surgeons. Vitek subsequently filed bankruptcy.

Without the doctrine of joint liability, the patients would not have been entitled to recover the full extent of their damages from the other defendants. This would have resulted in the innocent patients, rather than the other at-fault defendants, bearing the cost of Vitek's negligence.

Forty states have modified or, in a few, cases, abolished the doctrine of joint liability. [See the chart]. This year, the Illinois legislature abolished the doctrine,(24) while Indiana's legislature adopted comparative fault liability. In Indiana, a defendant is no longer liable for more than the amount of fault directly attributable to that defendant. Further, if the plaintiff is found more than 50 percent at fault, the plaintiff is completely barred from recovery.(25)

New Jersey, which already had modified joint liability, changed its law to a 60 percent joint and several liability threshold for both economic and non-economic loss.(26) Most jurisdictions have not eliminated joint liability for economic damages even where it has been applied to noneconomic damages.

The Texas and Wisconsin legislatures also passed modifications of the doctrine this past year. In Texas, there is no longer joint liability for defendants who are less than 50 percent negligent.(27) In Wisconsin, the same is true for defendants less than 51 percent negligent. Proportion al liability now applies to defendants in those states.(28)

The Hawaii legislature, however, did its part to protect consumer rights. It defeated a products liability bill that would have destroyed joint and several liability for all damages.

Government Standards and the FDA Defense

Another recent trend in the states is the move to grant immunity to manufacturers of dangerous products, drugs, and medical devices if the manufacturers have complied with minimum government standards during the manufacturing. This defense would make government approval (which often represents a minimum standard of safety) a license to recklessly market an unsafe or defective product--removing corporate accountability and placing consumers at risk.

Most states allow a defense or rebuttable presumption of nondefect where products conform to government or industry standards or regulations.(29) Where a rebuttable presumption exists, the plaintiff must prove the manufacturer's non-compliance. In a few states, however, evidence of standards is not admissible under certain circumstances.(30)

Although at least one state, Kansas, has drawn a distinction between mandatory and nonmandatory government standards,(31) virtually all jurisdictions are unsettled as to which standards or regulations when complied with will trigger the defense. Both the regulations themselves as well as the vagueness of the state's language referring to them work to the advantage of manufacturers and the disadvantage of the injured consumer.

Another defense that aids the manufacturer is the "FDA defense," which would allow manufacturers protection from punitive damages ability for any injury caused by a drug or medical device that had been approved by the FDA.

Proponents of this immunity argue that it is necessary to protect the drug and medical device industry from financial failure. One of the primary reasons for denying this defense, however, is safety: Consumers cannot rely on industry compliance with FDA standards for assurance that products are safe. For instance, both Oraflex and Versed (an antiarthritis drug and a sedative, respectively) were FDA-approved products, but both later had to be withdrawn from the market when they were found to be dangerous."(32)

FDA approval does not guarantee product safety. The agency itself has acknowledged that its approval practices are not infallible.(33) After at least five people were killed by the experimental drug Fialurdine, a task force that reviewed the tragedy recognized that FDA regulations did not require enough information to guarantee safety. The agency concluded that new stringent regulations arc needed.

The FDA defense disproportionately affects women. Many of the most harmful drugs and devices marketed to the public affect women's reproductive health: DES, the Dalkon Shield and Copper-7 IUDs, superabsorbent tampons, high-estrogen oral contraceptives, and Ritodine.(35) The FDA defense would allow manufacturers to escape liability for placing deadly products on the market.

For instance, the Playtex tampons that caused toxic shock syndrome (TSS) had complied with FDA regulations regarding warning labels. In a lawsuit brought by the family of a woman who died from TSS, the jury concluded that FDA requirements et only minimum standards, and mere compliance with those standards in this case had been inadequate. After the jury awarded punitive damages, Playtex voluntarily removed the tampons from the market and strengthened warnings on its other products.(36) Had the FDA defense been in effect, the company might not have had to face its responsibility for this tragedy, and many more women might have been injured.

Although women are particularly at risk, everyone is threatened by legislative efforts to absolve companies of responsibility. For example, a manufacturer of flammable children's pajamas had complied with then-existing standards of the federal Flammable Fabrics Act.(37) However, in a suit brought by the family of a four-year-old girl who was severely burned when her pajama top caught on fire, the Minnesota Supreme Court held that the company's compliance with the act did not insulate it from punitive damages"(38) The court found that the company knew that the act's flammability test was unreliable.(39)

Despite the evidence, the battle over adoption of the FDA defense by the states continued during the 1995 legislative session. The Michigan legislature stalled an effort to grant manufacturer immunity, but the battle will resume this fall. Among other things, the Michigan bill permits drug company immunity for compliance with government standards in cases where the FDA has approved the drug.

In Missouri, the legislature defeated a proposal that would have relieved drug manufacturers and merchants from liability for punitive damages if a drug was munufactured and labeled in accordance with FDA guidelines.

In Indiana and North Dakota, however, consumes will now, have a more difficult time holding manufacturers accountable for their injuries. The Indiana legislature passed a law that, among other things, provides for a government standards defense and creates a rebuttable presumption that a product is not defective and a manufacturer is not negligent if a government agency has approved a product.(40)

In North Dakota, exemplary damages (the term used for punitive damages, will not be awarded against a manufacturer or seller if a product's "manufacture, design, formulation, inspection, testing, packaging, labeling, and warning" complied with federal statutes or administrative guidelines existing at the time the product was produced or with premarket approval or certification by a government agency.(41) The North Dakota legislature also created a rebuttable presumption that a product is free from defect where the plans, designs, warnings, or instructions for the product or the methods and techniques of manufacturing, inspecting, and testing the product conformed with government standards.(42)

Under a new North Carolina law, the extent of compliance with FDA labeling standards is considered in determining whether a manufacturer or seller acted unreasonably in failing to provide adequate warnings or instructions on a drug product.(43) Illinois, the legislature passed a law forbidding punitive damages awards against a manufacturer or product seller if the conduct that caused the harm was "approved by or was in compliance with standards set forth in an applicable federal or state statute or in a regulation or other administrative action promulgated by an agency of the federal or state government."(44)

Statutes of Repose

Statutes of repose were also hotly contested in the last year. These statutes arbitrarily cut off claims on old products unless an action is filed within a certain time from either the date of the first sale to a consumer or from the date that the manufacturer relinquished control of the product. The arbitrary cutoff would apply to all products regardless of their danger or the strength of the injured party's case. It would elevate property rights above consumer safety.

These statutes are especially harsh on low-income workers who spend their days with workplace products that are designed for years of use. Since the equipment largely outlasts the repose period, the statutes only serve to curtail the right of citizens to hold manufacturers accountable. For instance, a statute of repose could have prevented a 1988 case involving a punch press operator from being heard in court.(45) The operator's hand was injured by a machine manufactured without a guard in 1952.

Agricultural workers are also at risk. Farmers keep the same tractors for years and should not be denied recourse because an injury takes place after an arbitrary period of time has run. Many cases in which juries are now able to hold manufacturers responsible for farmers' injuries would no longer be viable, and many farmers would be left to bear the cost.

Some states have abolished statutes of repose as unconstitutional. In 1993, the Arizona Supreme Court held that the state's 12-year statute of repose violated the state's constitutional prohibition against abrogation of a right of action to recover damages for injuries.(46) Although the state may regulate rights of action, the court noted, in certain cases products liability claims were abolished before any injury had occurred. The court held that this went far beyond state regulation, is an "extreme form of abrogation," and, as such, was deemed unconstitutional.(47)

The Supreme Court of New Hampshire came to a similar conclusion a decade earlier when it held that state's 12-year statute of repose unconstitutional because the absolute limitation on suits against manufacturers would have nullified some causes of action before they even arose. The court then said the 12-year limit was unreasonable because the mere purchase of a product does not put a consumer on notice of a hidden defect injurious to health or safety. Further, the court noted, injuries from products--particularly drug products--may not manifest themselves for years after a purchase, and the statute of repose arbitrarily deprived people injured by defective products of the right to sue the manufacturer responsible for the defect.(50)

Despite the courts' disapproval of statutes of repose, state lawmakers continue to attempt to implement them, as evidenced by the 1995 legislative session. The legislatures in South Dakota and Iowa considered these measures in the past year. Had the South Dakota measure passed, it would have created a six-year statute of repose in products liability cases. The Iowa proposal would have restricted a claimant from bringing a products liability action more than 10 years after acquiring a product--even if the product was purchased with the understanding that it would last 20 years or more.

The Illinois legislature, however, succeeded in extending its statute of repose to encompass any cause of action. The repose statute previously had applied only to strict liability actions.(51) Thus, state legislatures continue to ignore the sound advice of the courts, and the threat to limit the injured's right to bring an action by imposing statutes of repose still exists.

Fighting for Accountability

With the continuing movement to diminish corporate accountability, it is now more important than ever for protectors of consumer rights to remain vigilant. Some legislation has passed that makes it increasingly difficult for injured consumers to hold negligent wrongdoers accountable for their actions.

"Reforms" have been presented by proponents as cost-savers based on the theory that they will reduce heavy court caseloads, which the "reformers" conclude have a negative impact on the economy. But the proposed so-called reforms would not affect business-related suits--the very cases that are "clogging" the courts.

The battle will continue in upcoming state legislative sessions. If everyone does not help to curtail these efforts, consumers will find themselves unable to hold wrongdoers accountable and unable to change bad behavior--the very crux of our civil justice system.

Notes

(1) NATIONAL CTR. FOR STATE COURTS, EXAMINING THE WORK OF STATE COURTS, 1993: A NATIONAL PERSPECTIVE FROM THE COURT STATISTICS PROJECT 3, 19 (1995) [hereafter NCSC]. (2) The basis is a representative sample of the 75 courts where nearly half of all tort cases nationwide are handled. STEVEN K. SMITH ET AL., U.S. DEP'T OF JUSTICE, SPECIAL REPORT: CIVIL JUSTICE SURVEY OF STATE COURTS, 1992, at 1 (Apr. 1995). (3) NCSC data show that all tort cases make up 16 percent of the caseload in general jurisdiction courts in 23 states, while contract cases account for 18 percent. In limited jurisdiction courts in 13 states, all torts account for 4 percent of the caseload, while contract cases amount to 7 percent. NCSC, supra note 1, at 11. See also SENATE COMM. ON COMMERCE, SCIENCE, AND TRANSP., MINORITY VIEWS ON S. 565, S. DOC. NO. 69, 104th Cong., 1st Sess. 61 (1995) [hereafter MINORITY] (citing Marc Galanter Joel Rogers, A Transformation of American Business Disputing? Some Preliminary Observations, working paper No. DPRP 10-3, IN-ST. FOR LEGAL STUD., U. WIS. (Apr. 1991)); Milo Geyelin, Suits by Firms Exceed Those by Individuals, WALL ST. J., Dec. 3, 1993, at B1, (4) COALITION FOR CONSUMER RIGHTS, CLOGGING THE COURTS: THE ILLINOIS CIVIL JUSTICE LEAGUE'S LAW-SUIT ABUSE (Jan. 1995). (5) Only Georgia and Nevada include provisions that exclude products liability, cases from the punitive damages cap. (6) U.S. owners, managers, and workers take home 37 percent of sales and 48 percent of profits in global markets, and U.S. industry is the leader, or is highly competitive, in virtually every major global industry. Daniel Strickberger, The Other American Dream Team, WALL ST. J., Feb. 15, 1994, at A16 (relying on statistics provided by Morgan Stanley Capital Int'l). (7) MICHAEL RUSTAD, DEMYSTIFYING PUNITIVE DAMAGES IN PRODUCTS LIABILITY CASES: A SURVEY OF A QUARTER CENTURY OF TRIAL VERDICTS 25-27 (Roscoe Pound Foundation 1992) (finding that out of all the products liability awards from 1985 to 1990 in both state and federal courts, punitive damages were awarded in only 355 cases). (8) See, e.g., Tetuon v. A.H. Robins Co., 738 P.2d 1210 (Kan. 1987) (affirming compensatory and punitive awards to a 27-year-old woman who required a hysterectomy after wearing an intrauterine device for several years). (9) The smoking-gun document revealing Ford's infamous cost/benefit analysis was discovered in Grimshaw v. Ford Motor Co., 174 Cal. Rptr. 348 (Ct. App. 1981). (10) MINORITY, supra note 3, at 64, 66-67 (citing Ashford & Stone, Liability, Innovation, and Safety in the Chemical Industry, in THE LIABILITY MAZE 414 (Brookings Inst. 1991) (chemical manufacturers pay "no more than 5 percent, and often less than 0.1 percent, of the corresponding social costs" of chronic injuries caused by chemicals)). See also Henderson Eisenberg, Inside the Quiet Revolution in Products Liability, 39 UCLA L. REV. 731, 792 (1992); GEORGE C. EADS & PETER REUTER, DESIGNING SAFER PRODUCTS, CORPORATE RESPONSES TO PRODUCT LIABILITY LAW AND REGULATION 121 (1983) (for most large manufacturing firms, products liability costs, including the cost of defending litigation and certain products liability prevention activities, probably amount to less than I percent of total sales revenue); U.S. GEN. ACCOUNTING OFFICE, PRODUCT LIABILITY: VERDICTS AND CASE RESOLUTION IN FIVE STATES, GAO/HRD-89-99 (Sept. 1989) (insurance costs represented a relatively small proportion of businesses' annual gross receipt--six-tenths (0.6) of 1 percent for large businesses and about 1 percent for small businesses). (11.) Ill. H.B. 20, as amended (to be enacted at ILL. REV. STAT. ch. 735, para. 5/2-1115.05,-1115.1). (12) Ind. H.B. 1741 (to be enacted at IND. CODE [sections]34-4-34-4). (13) N.C. H.B. 729 (to be enacted at N.C. GEN. STAT. [sections]1D-25). (14) N.J. S.B. 1496 (to be enacted at N.J. REV. STAT. [sections]2A:1S-1B-5). (15) Tex. S.B. 25 (to be enacted at TEX. CIV. PRAC. & REM. CODE ANN. [sections]41.008 (West)). (16) OKLA. STAT. tit. 12, [sections]110.1. (17) Id. (18) Wis. S.B. 11 (to be enacted at WIS. STAT. [sections]895.85). (19) Tex. S.B. 25 (to be enacted at TEX. CIV. PRAC. & REM. CODE ANN. [sections]41.003 (West)). (20) N.C. H.B. 729 (to be enacted at N.C. GEN. STAT. [sections]1D-15). (21) N.J. S.B. 1496 (to be enacted at N.J. REV. STAT. [sections]2A:15-1B-4). (22) Larry S. Stewart, Damage Allocation Laws Pose Threat to Fairness, NAT'L LAW J., July 24, 1995, at C7. (23) Id. (24) Ill. H.B. 20, as amended (to be enacted at ILL. REV. STAT. ch. 735, para. 5/2-1117). (25) Ind. H.B. 1741 (to be enacted at IND. CODE [sections]33-1-1.5-9). (26) N.J. S.B. 1494 (to be enacted at N.J. REV. STAT. [sections]C.2A:15-5.2). (27) Tex. S.B. 28 (to be enacted at TEX. CIV. PRAC. & REM. CODE ANN. [sections]33.013 (West)). (28) Wis. S.B. 11 (to be enacted at WIS. STAT. [sections]895.045). (29) In Florida, for instance, compliance with standards is a defense in a products liability action. Jimenez v. Gulf & W Mfg. Co., 458 So. 2d 58, 59 (Fla. Dist. Ct. App. 1984). However, in Tennessee, complying with regulations existing at the time a product was manufactured and prescribing standards for design, inspection, testing, manufacture, labeling, warning, or instructions for use of a product will raise a rebuttable presumption that a product is not in an unreasonably dangerous condition. TENN. CODE ANN. [sections]29-28-104 (1989). (30) In New York, standards established after the time of manufacture are not admissible. Cover v. Cohen, 461 N.E.2d 864 (N.Y. 1984). In Idaho, evidence of industry custom or standards is not admissible to prove the existence of a defect, but evidence of changes in safety or performance standards is admissible for impeachment. IDAHO CODE [sections]6-1406 (1990). (31) KAN. STAT. ANN. [sections]60-3304 (1983). (32) Elisabeth Rosenthal, Economists Question Drug Industry Profits, Critics Say Promotional Costs Drive Up Prices, SAN FRANCISCO CHRON., Feb. 22, 1993, at A2. (33) According to Dr. Bruce Burlington, the FDA's chief of the Center for Medical Devices, safety tests and applications for approval of some medical devices, including heart defibrillators and a home test for ovulation, were so poorly carried out that they were "not up to the level of fifth-grade science." Philip J. Hilts, F.D.A. to Toughen Testing of devices, N.Y. TIMES, Mar. 5, 1993, at A18. (34) John Schwartz, Optimism May Have Led to Drug Tragedy, WASH, POST, Nov. 16, 1993, at A6. (35) While each of these drugs and devices was released with the FDA's "blessing," the FDA standards imposed on them ranged from minimal to the more stringent Class III standard for medical devices. Another device that has significantly affected women's health is the silicone-gel breast implant, which was released before the FDA had jurisdiction over it. (36) In light of Playtex's response to the verdict, the trial court reduced the jury's punitive damages award. The 10th Circuit Court of Appeals affirmed the judgment against Playtex but reinstated the original punitive damages award. The 10th Circuit held that the trial court had no authority to remit the award on the basis of post-trial occurrences. O'Gilvie v. International Playtex, Inc., 609 F. Supp. 817 (D. Kan. 1985), rev'd, 821 F.2d 1438 (10th Cir. 1987), cert. denied, 108 S. Ct. 2014 (1988). (37) 67 Stat. 111 (1953) (codified as amended at U.S.C.A. [sections]1191 (1982)). (38) Gryc v. Dayton-Hudson Corp., 297 N.W2d 727 (Minn. 1980), cert. denied, 101 S. Ct. 320 (1980). (39) Id. at 744. (40) Ind. H.B. 1741 (to be enacted at IND. CODE [sections]33-1-1.5-4.5). (41) N.D. H.B. 1369 (to be enacted at N.D. CENT. CODE [sections]32-03.2-11). (42) N.D. H.B. 1369 (to be enacted at N.D. CENT. CODE [sections]28-01.3). (43) N.C. H.B. 522 (to be enacted at N.C. GEN. STAT. [sections]99B-5). (44) Ill. H.B. 20, as amended (to be enacted at ILL. REV. STAT. ch. 735, para. 5/2-2107). (45) Hierro v. E.W. Bliss Co., 535 N.Y.S.2d 264 (App. Div. 1988) (denying the manufacturer summary judgment. Noting that the punch press had lacked a guard "at the time it left defendant's hands," the court held that a factual issue existed as to whether the defendant had an obligation to furnish a guard.). (46) Hazine v. Montgomery Elevator Co., 861 P.2d 625 (Ariz. 1993). (47) Id. at 627. (48) Heath v. Sears, Roebuck & Co., 464 A.2d 288 N.H.1983). (49) Id. at 295. (50) Id. (51) IN. H.B. 20, as amended (to be enacted at ILL. REV. STAT. ch. 735, para. 5/13-213).

Annette Wencl is ATLA's director of state affairs. Margaret Brizzolara is state research counsel for the association.