PUERTO RICO Law and Practice Contributed by: Mónica Ramos-Benítez and Roberto A. Cámara-Fuertes, Ferraiuoli LLC
to perform the surgery. Though the claim against the distributor was dismissed given the plaintiff’s failure to prove a defect and causation, the PR Supreme Court emphasised that the distributor could have been held strictly liable if the doctor’s failure to maintain the equipment was a result of insufficient or inadequate warnings and instructions for proper care and main - tenance. In González - Caban , the US District Court for the District of Puerto Rico certified the issue to the PR Supreme Court to determine whether strict liabil - ity applied to the sale of shrimp contaminated with a highly toxic natural neurotoxin. The PR Supreme Court held that it did not, because the “defect” in the shrimp was not the result of a manufacturing process. The PR Supreme Court has yet to interpret the new product liability dispositions codified in the Civil Code of 2020. 3. Recent Policy Changes and Outlook 3.1 Trends in Product Liability and Product Safety Policy The codification of strict product liability in the new Civil Code of 2020, though presumed to have been drafted with the doctrine developed through judicial precedent before its adoption, is starting to cause issues of interpretation in product liability cases. Prior to its adoption, the PR Supreme Court had rejected the “unreasonably dangerous” standard of the Restatement (Second) of Torts § 402A and had instead focused on whether the product deviated from its intended design or failed to meet the average qual - ity of similar products. Now, the Civil Code of 2020 codifies strict liability of those in the chain of com - merce who sell a product that is “unreasonably dan - gerous” by its design or manufacturing, as opposed to a product that is “defective”, and it expanded the definition of a manufacturing defect, combining the “deviation-from-design” standard with the “consumer expectations” test.
The Civil Code of 2020 also codified the dual approach for design defects under the “consumer expecta - tions” test and “risk-utility” test, seemingly codifying the burden-shifting framework under the “risk-utility” test. Finally, in codifying strict liability of those who introduce an unreasonably dangerous product into the chain of commerce, the Civil Code of 2020 appears to have left out lack of or insufficient warnings or instruc - tions from the definition. The Civil Code of 2020 only contemplates warnings and instructions as one of the relevant factors to consider in determining the rea - sonableness of the design under the burden-shifting framework of the risk-utility test for design defects. 3.2 Future Policy in Product Liability and Product Safety The strict product liability dispositions codified in the new Civil Code of 2020 need to be clarified and inter - preted to understand how they impact the product liability doctrine that for decades had been developed in Puerto Rico through judicial precedent. For instance, it is unclear whether the omission of lack of or insufficient warnings or instructions in Arti - cle 1542 of the Civil Code of 2020’s codification of strict product liability implies that failure to warn or to provide adequate instructions no longer triggers strict liability and instead gives rise only to a negligence claim. Similarly, judicial precedent relied upon in our jurisdiction established that the consumer expecta - tions test, used only for design defects, could not be the basis of liability when it involved complex techni - cal matters outside of the knowledge of the everyday consumer. The Civil Code of 2020 now adopted that test and appears to have made it applicable to manu - facturing defects, potentially broadening the basis for establishing a manufacturing defect claim. Moreover, product liability plaintiffs are now suggesting that the codification of the consumer expectations test implies that liability can be established based on the ordinary consumer’s expectations regardless of its complex and technical nature.
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