Resistance bands used for home exercise purposes have recently become the frequent subject of product liability suits.  Perhaps most notably, a lawsuit resulting from an eye injury suffered by Senate Minority Leader Harry Reid this past January brought media attention to such claims.  See, e.g., NPR, Sen. Harry Reid Sues Makers of Exercise Band Over His Injuries (Oct. 8, 2015).  While the result of Senator Reid’s suit remains to be seen, a recent decision by the U.S. District Court for the Eastern District of Pennsylvania in another resistance band lawsuit brings to light an issue that carries implications for product liability claims generally—the scope of liability of the designer, or innovator, of a product who does not manufacture or sell the actual item purchased by a plaintiff who alleges a design defect.

At issue in Thorpe v. Bollinger Sports, LLC, No. 14-04250, 2015 U.S. Dist. LEXIS 119643 (E.D. Pa. Sept. 9, 2015), was a Motion for Judgment on the Pleadings filed by Bell Sports, Inc. (“Bell”), in which it argued that it could not be held liable for, inter alia, Thorpe’s design defect claims, brought under strict liability and negligence theories, because it was not within the chain of distribution of the resistance band that allegedly caused Thorpe’s injuries.   Thorpe alleged that Bell sold the Embark line of resistance bands to Bollinger Sports, LLC (“Bollinger”) in 2012 without disclosing that Bell had recalled the bands in 2011.  Thorpe allegedly purchased an Embark resistance band manufactured by Bollinger, and claimed an injury to his eye resulting from a component part of the band becoming dislodged.  

The court granted Bell’s Motion on both design defect claims.  Interpreting § 402A of the Second Restatement of Torts (the applicable law in Pennsylvania), the court rejected Thorpe’s argument that by selling the Embark product line to Bollinger without disclosing a prior recall, Bell placed into “the [s]tream of [c]ommerce” a defectively designed product by failing to disclose the recall knowing that the product would ultimately be manufactured and sold to unsuspecting consumers.  Id. at *7 (alteration in original).  The court noted that an entity cannot be liable under § 402A unless it is in the chain of distribution, and that licensing or selling the design of a product does not “inject the designer” into that chain.  Id.  The court observed that “Bell relinquished all control over the band's design and, thus, the ability to affect or control the alleged defect nearly two years before Thorpe's injury,” and that “[e]xtending strict liability to Bell does not further the policy behind the imposition of strict liability,” of ensuring that the manufacturers who put a product on the market sustain the cost of injuries resulting from that product.  Id. at *8.   

With respect to Thorpe’s negligent design claim, the court accepted Bell’s argument that as a prior designer of the allegedly defective product, it owed no duty to Thorpe.  The court attributed a lack of Pennsylvania case law imposing a duty of care “upon a prior designer that relinquished control over the design prior to a consumer's injury” to the requirement that “negligence liability hinges upon whether the accident could have been avoided by the exercise of reasonable care."  Id. at *16 (internal quotation marks and citation omitted).  Accordingly, the court ruled that “[a]n entity without the ability to control or alter the allegedly defective design cannot be saddled with a duty to exercise reasonable care to avoid an injury caused by the defective design. “  Id.

In the event that your company licenses or sells a product design, or, as with Bell and the Embark bands, sells a product line that it used to manufacture, the Thorpe case can be helpful in disclaiming liability for subsequent claims.  For the same reasons, Thorpe is worth keeping in mind when considering the viability of cross-claims or third-party claims against an innovator that sold a product line or design to your company.