Monday, March 9, 2020

An Algorithm for Predicting Recidivism Isn't a Product for Products Liability Purposes

By Eugene Volokh - March 09, 2020 at 08:02AM

From Friday's Third Circuit opinion by Judge Cheryl Krause, joined by Chief Judge D. Brooks Smith and Judge Thomas Hardiman, in Rodgers v. Christie:

June Rodgers's son was tragically murdered, allegedly by a man who days before had been granted pretrial release by a New Jersey state court. She brought products liability claims against the foundation responsible for the Public Safety Assessment (PSA), a multifactor risk estimation model that forms part of the state's pretrial release system….

The NJPLA [New Jersey Products Liability Act] imposes strict liability on manufacturers or sellers of certain defective "product[s]." But the Act does not define that term…. [B]oth parties agree the Third Restatement [of Torts] definition [of "product"] is the appropriate one. We therefore assume that to give rise to an NJPLA action, the "product" at issue must fall within section 19 of the Third Restatement.

The PSA does not fit within that definition for two reasons. First, as the District Court concluded, it is not distributed commercially. Rather, it was designed as an "objective, standardized, and … empirical" "risk assessment instrument" to be used by pretrial services programs like New Jersey's….

Second, the PSA is neither "tangible personal property" nor remotely "analogous to" it. As Rodgers' complaint recognizes, it is an "algorithm" or "formula" using various factors to estimate a defendant's risk of absconding or endangering the community…. "[I]nformation, guidance, ideas, and recommendations" are not "product[s]" under the Third Restatement, both as a definitional matter and because extending strict liability to the distribution of ideas would raise serious First Amendment concerns.

Rodgers's only response is that the PSA's defects "undermine[ ]" New Jersey's pretrial release system, making it "not reasonably fit, suitable or safe" for its intended use. But the NJPLA applies only to defective products, not to anything that causes harm or fails to achieve its purpose….


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