Encouraging Product Safety Testing by Applying the Privilege of Self-Critical Analysis When Punitive Damages Are Sought
16 HARV. J. L. & PUB. POL'Y 769 (1993)
The increasing use of punitive damages in design defect cases has introduced an element of fault into strict products liability actions that may have done more than stifle innovation in the development of new products. Because a plaintiff must prove the defendant had knowledge of the harmful effects of its product before punitive awards can be granted, such awards may also deter firms from conducting safety research in the hopes of eluding this knowledge requirement. This knowledge gap, created by the structure of punitive damages law in design defect and products liability, can be filled by the extension of a privilege against the discovery of data created in the course of product safety testing to firms facing claims of punitive damages. One privilege developed recently by federal courts -- the privilege to refrain from disclosing self-critical analyses -- should be extended to cover product safety decisions when punitive damages are at issue. This article explores these issues.
