Tanenbaum Keale LLP partner Timothy Freeman recently authored a Law360 Expert Analysis article focused on key considerations for using the contract specification defense in product liability litigation. Mr. Freeman’s analysis includes his evaluation of a recent Sixth Circuit decision that attempts to clarify the extent to which manufacturers may collaborate with their customers on product design without exposing themselves to liability.

“(This) decision highlights the fact-sensitive nature of the contract specification defense — and serves as a warning to manufacturers regarding the extent to which they may become involved in design decisions without exposing themselves to potential liability,” Mr. Freeman wrote.

Mr. Freeman advises that it is important to carefully scrutinize the terms of the agreement between the parties, as well as their conduct relative to the agreement, when evaluating the merits of the contract specification defense.

“If the contract specifications are scrupulously followed, and the manufacturer abides by the customer’s wishes without participating in the design process, the contract specification defense may be applicable — provided that the design was not obviously, patently or glaringly dangerous,” Mr. Freeman concluded.

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