Expert Witnesses and The Internet of Things: Assessing Product Liability in Smart Devices

The rise of the Internet allowed people to communicate with one another in previously unimagined ways. As digital communication became easier, so did the merging of networking tools into devices.

The result was the Internet of Things (IoT), a network of physical objects that can collect and exchange data through the use of embedded electronics, software, sensors, and network connectivity tools.

While smartphones and tablets are ubiquitous examples of smart devices, the Internet of Things encompasses an ever-growing range of consumer products: thermostats, refrigerators, and even motor vehicles. A 2014 report from the national Security Telecommunications Advisory Committee (NSTAC) estimated that by 2020, the Internet of Things will include 50 billion objects and generate $8 trillion in global revenue.

What Are Smart Products and Why Do We Like Them?

Smart products offer a number of potential benefits to consumers. Smart items like appliances can self-report potential or actual problems. In some cases, they can even prevent or fix their own issues by automatically downloading updates or necessary software.

When designed to collaborate with other devices, smart products can perform functions independently based on variables that humans may be unable to track. They can also gather and analyze data to optimize performance – and tell manufacturers and vendors how, where, when, and by whom their products are used.

Consider, for example, a “smart building” fitted with networked thermostats, switches, and sensors, all connected to the building’s HVAC system. Not only can this system turn heating or cooling on and off at specified times, it can also gather data about how quickly various parts of the building change temperature, when certain areas are used, and how much excess heat is generated by machinery, lightbulbs, servers, and other elements. With this data, the system can make minute changes that improve its efficiency and keep temperatures more stable than human observation could do.

Smart consumer products like household thermostats and appliances can often be controlled remotely, allowing family members to turn items on or off, set temperatures or run times, and perform other tasks. Smart cars promise a “driverless” future in which complex computer algorithms respond to one another instead of relying on distractible human perception.

What Happens When a Smart Device Fails?

The connections between billions of networked smart devices and the associated data transfer poses myriad questions about liability. These questions may be compounded by the fact that many smart devices lack rigorous security protocols, turning them into ‘weak points’ susceptible to manipulation by hackers.

Smart cars offer just one example of the product liability questions that arise when a consumer product is networked. Several states have begun to reconsider their auto insurance systems in the face of driverless cars. When an accident occurs, who is liable? If a defect in the vehicle’s “smart” systems leads to an accident, who should be held accountable: the auto manufacturer, the software or hardware designer, or both? What if a hacker gains control of the vehicle and uses it to cause a crash?

The amount of control a user has over a smart item’s features may further complicate a product liability case. While a mechanical or design flaw may remain easy to spot, questions of comparative or contributory negligence will likely compound when a user has the option to exert greater control and reason to do so, but does not exploit it.

Product Liability Experts and Smart Devices

Product liability claims featuring standard devices have a well-established approach to expert witness analysis. Often, engineers and designers who specialize in the particular product, material, or operation are asked to run tests and provide opinions as to what happened, why it happened, and how it might have been prevented.

While smart devices can make this process more complex, they do not make it impossible. Instead, attorneys will need to add experts in software design and networking to their roster in many cases. Experts will need to be able to communicate clearly to a jury, helping them understand how the smart device in question is meant to work, what went wrong, and how it might have gone differently.

Attorneys and experts focusing on product liability will likely face three major types of cases associated with these products:

1. Malfunctions leading to personal injury or property damage
2. Attacks from an outside source, such as a hacker using a device to cause damage
3. Attacks on data, such as a hacker stealing personal information from a device

While all three claims fall under product liability insofar as they are related to the smart object itself, the approach and experts required will differ depending on what defects caused damage or which vulnerabilities were exploited. Identifying the problem is, as always, the first step in determining which experts will be essential to the case.