For liability to become predictable, actors must have some idea, in advance, of the standard they will be asked to live up to. Retrospective determination of an applicable standard by juries eliminates predictability. This is especially true where specific harms are not foreseeable, as in Koski or Eli Lilly, or where product design calls for tradeoffs among various objectives.

Recognizing that their decisions involve judgment calls from among various options, each with unique potential hazards and rewards, physicians in malpractice cases have long had available the defense of compliance with professional norms. Similar tradeoffs are made in product design, and this defense to charges of negligence should be available to manufacturers in product design cases. Compliance with the independent standards of government, legitimate private organizations, or industry norms should constitute a defense in design defect actions.

In addition to the predictability created by a known standard of care, this defense would reduce the number of whole product lines declared defective and thus bolster the risk independence needed for intelligent underwriting decisions. Whenever a product is declared to have a defective design, it means all such products are sources of liability, even if they function exactly as intended. Allowing independent standards to affirm the acceptability of a design will eliminate this catastrophic possibility and allow the insurance industry to do what it does best – determine the statistical probability of independent occurrences, such as manufacturing defects.

As important as reforms in the areas of damages, joint and several liability, and standards are, they only skirt the fundamental problem areas of the new tort law – the destruction of contract and causation. It is in these two areas that a more permanent solution to the products liability insurance crisis must be found.