State of the Art Evidence: From Logical Construct to Judicial Retrechment

Abstract

"State of the art" has become a touchstone for manufacturer resistance to strict products liability, and the political forces thus mobilized are well served by their linguistic choice. As a campaign slogan, state of the art panders to a consumer society which frequently buys on the basis of that very producer representation. It conjures up the picture of an industry on the brink of financial ruin, despite its suggested presence on the cutting edge of research and development. In contrast with and outwardly detached from such political concerns, conventional wisdom has long suggested that the admissibility of state of the art evidence in a products liability case should be arelatively straightforward issue. Subject to a few case-by-case exceptions premised on overly prejudicial evidence, the admissibility issue should follow logically from a jurisdiction's substantive products liability doctrine. However, several factors have conspired to make such a structure elusive. First, there is still considerable confusion as to exactly what state of the art means. Second, the recent examination of state of the art issues by state supreme courts has coincided with a new wave of judicial retrenchment from strict liability. Third, spurred by cyclical supposed insurance crises, state and federal legislatures have shown con- siderable interest in tampering with all aspects of the common law products liability system, including state of the art issues.