Underwriters Laboratories- The Forgotten Island in the Litigation Seas- "Full of Fruit" -For Bolstering or Undercutting Product Integrity
January, 2005
by Michael S. Errera and Dean S. Rauchwerger
Underwriters Laboratories (“UL”) is a nonprofit organization that conducts product safety testing and certification. In 2004, UL's marks were seen on 19 billion products (www.ul.com). UL publishes hundreds of standards for safety and acts as a conduit for safety messages for consumers throughout the world.
Courts around the country have admitted UL standards and compliance as evidence of a product being “state of the art” or made in compliance with industry standards. However, UL is not “the end all” of whether a product is made safely. UL's product investigations and guidelines should be considered in a products liability action, as they contain a wealth of information in both challenging and defending a product liability claim.
The information contained in the UL file varies with the type of UL certification or mark a product holds (i.e., a listing, certification or recognition) and in what country the product is being sold (as standards vary from one country to another). A UL file will contain the UL Report on the product and all changes or supplements made to it. When a product carries the UL mark, any change made to it must be approved by UL and would be documented in the Report. The UL file will contain all correspondence between the product manufacturer and UL, the agreement between UL and company, procedure error reports, variation notices, inspection records and corrective actions taken with regard to the product.
The information found in the UL file can be used to show that a product was made in accordance with its UL listing and thus, arguably, not defective, or it can be used to show that a product deviated from the requirements in its UL listing and subscriber agreement and, as such, may be evidence of product defect or poor product stewardship.
All UL information should be carefully examined to ensure the UL testing purposes and conditions fully address the conditions in which the product is being used in the field. The UL testing program may be insufficient in terms of scope, depth and reliability to constitute proof of product safety. Just as in Daubert inquiries, the UL product testing may or may not rise to the level of reliability and focus to show “state of the art” compliance and product safety. UL has recently started a new program that allows the particular company to do its own testing under its direction, a program whose validity has recently come under fire. Simply because a product bears a UL Mark or has some other UL certification does not mean that the product is inherently safe and contains no defects.
In navigating the litigation storms of product defect claims, it is imperative that your counsel consider the value of exploring the UL island to see if it bears fruit to help your cause.
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