As reported this week by USA Today, the head of the Consumer Products Safety Commission will call in various power tool manufacturers to demand an answer as to why they have not done more to prevent the daily finger amputations caused by power saws. If the industry fails to voluntarily develop better safety standards, the CPSC may mandate new safety technology, including the use of “flesh detection” technology that stops a saw blade when a finger comes in contact with it.
As we have previously blogged about here and here, patent lawyer-turned-inventor Steve Gass has developed a patented technology that stops saw blades within approximately five milliseconds of coming into contact with human flesh or any other highly electrically conductive object. He’s started his own saw company, SawStop, that sells saws incorporating the technology.
The principle behind SawStop is the same as the principle behind those old “touch lamps” that would turn on and off when you touched their base: the SawStop saw blade carries an electrical charge and when an electrical conductor like human flesh (which is mainly water) comes in contact with the saw blade, the contact interrupts the electrical charge (which is transmitted at the speed of light) and triggers a brake mechanism that drops the saw blade down into its housing. The amazing technology was recently featured on the Discovery Channel’s Time Warp program, showing Steve Gass running his finger through a SawStop saw blade and coming away with nary a scratch. (Hat tip to law professor Alberto Bernabe for picking up on this amazing video).
When Gass developed this technology over a decade ago, he approached all the major power tool manufacturers, such as Ryobi and Black & Decker to license it to them. They expressed initial interest but never pursued it.
Meanwhile finger amputations from power saws continue to occur at about the rate of ten a day, according to data that the CPSC gather through its National Electronic Injury Surveillance System (NEISS). The CPSC estimates that these saw accidents cost the economy $2 billion annually.
If the saw manufacturers don’t act quickly to implement some new safety technology, CPSC may mandate that table saws come equipped with flesh detection technology. (The recent attention being paid to the dangers of power saws has spurred a number of innovations, including this new Whirlwind saw).
The dilemma about what to do with unsafe products, such as power saws lacking SawStop, is an interesting one. We have essentially two frameworks for dealing with unsafe products: tort (people injured by unsafe products file lawsuits) and regulatory (agencies like the CPSC or FDA step in and try to formulate appropriate regulations to protect people). As we have seen on this blog, a lot of free market economists, like (the late) Nobel Prize winner Milton Friedman, favor a robust tort system and are skeptical of regulatory solutions.
There is good reason to be skeptical of regulatory solutions. Regulatory agencies are prone to “regulatory capture” – being taken hostage by the corporate special interests that they are supposed to govern. We saw a good example of regulatory capture this past summer with the BP oil spill and what it revealed about how the Minerals Management Service was in the oil companies’ back pocket.
But regulation of unsafe and dangerous products does have its place. In order to prevail in a product liability lawsuit premised on a defective design, a plaintiff needs to show, among other things, a reasonable alternative design that is safer. Back v. Wickes Corp., 378 N.E.2d 964; Fahey v. Rockwell Graphics Sys., 20 Mass. App. Ct. 642. It can be fatal to a plaintiff’s case if the proposed alternative design is vastly more expensive; a jury can weigh the higher price of an alternative design in considering whether the original design was defective.
Now let’s say that incorporating an infallible safety technology in a power saw adds $1,000 to the price of a $200 power saw (I am making up numbers for ease of calculation). That would mean that someone injured by a power saw without this new technology would have a very difficult time making out a defective design claim.
Now imagine the power tool industry sells 100,000 power saws a year. And the cost to our society of finger losses caused by power saws is (as the CPSC says it is) $2 billion annually. Our society would be better off if power saw manufacturers were forced to incorporate this new, magical technology in their saws, even if it added $1,000 to the price of saws, because the $100,000,000 cost of adding the technology to the saws (100,000 saws x $1,000 per saw=$100,000,000) is much less than cost to our society of saws that lack the technology ($2 billion in annual medical costs, lost wages, etc.).
In the one case that has gone to trial thus far alleging that a power saw was defective by design because it did not include flesh detection technology – a $1.5 million verdict for the plaintiff – the jury heard evidence that the cost of SawStop technology was only a fraction of the cost of the saw, especially more expensive saws like cabinet saws. So individual product liability suits brought by those who lost fingers to power saws may eventually succeed in compelling the power tool industry’s big manufacturers to include this technology. But the industry could certainly use a push from CPSC as well.
Disclosure: The Law Office of Alan H. Crede, P.C. is involved with claims against table saw manufacturers.
