The roster of this meeting discloses that some of you here today manufacture and market in the United States products of the sort that are popular targets of product liability suits. I’m pleased to see you here. Others of you either insure some product manufactured or sold in America or are considering doing so. Your courage is noteworthy. I understand that still others of you are lawyers who may fear the threatened fall-out of our American-style product liability law on the European Community and want to know what to expect. All of you, I suspect, may believe that the dark of impenetrable night lies over the manufacture and distribution of products in America. Everything you read or hear suggests that the night is growing darker.

You may have read or heard that a product now can be proven defective in one of our States by the unsupported testimony of the injured user that the thing did not work as he thought it would work; he stepped on the brakes but the car kept going. No matter that after the accident the brake parts showed no defect; no matter that a dozen other cars had gone through that same hidden stop sign; no need to prove the reason for the sudden brake failure; no need for expert testimony at all. The self-serving, suspect evidence of the user alone is enough in that court. Or maybe you have read or heard that defences that we thought were available are being chipped away. One court, for instance, has held that unless the defendant has proven that the deceased intended to commit suicide, the defence of assumption of the risk has not been proved. Assumption of the risk has changed in that court to assumption of the certainty of injury and death. Perhaps, too, you know that the state-of-the-art defence is not admissible in the courts of one State. And the professors are at it again with their social imperatives. This time they seek to persuade our gullible Judges that punitive damages should be permitted in cases tried under the doctrine of strict liability. Now they want to punish the nasty conduct of a manufacturer under a doctrine that, by definition, precludes the manufacturer from proving the careful nature of his conduct with respect to his product.

The night does seem to grow darker. Why should not all manufacturers hand over to the Government the keys to the plant? Why shouldn’t all insurers close down their U.S. product liability shop? Who wants to be a hero? Who wants the posthumous medal? Sensible, rhetorical questions! But I disagree with the underlying assumptions.

I’m no Pollyanna; still, I believe that the dark has been overstated and the dawn is near. My thesis is that the doors of the plant can be kept open, the machinery can be kept running, the products can continue to be made and the insurance can continue