Biagini: Safety valve

Should victims of a terrorism incident on U.S. soil be allowed to sue the manufacturer of a metal detector because a terrorist was able to sneak a weapon through security? Did an alleged flaw in a vulnerability assessment contribute to the terrorist attack?

Such hypothetical examples illustrate the sometimes oppressive and always complex nature of today's product liability laws, which often stifle innovation in the anti-terrorism market. With increasingly frequent terrorist threats, our country can ill afford such delays.column

A recent ruling by the Georgia Supreme Court underscores the dilemma. Court officials found that the Atlanta Committee for the Olympic Games could be held liable for damages resulting from the bombing at Centennial Olympic Park during the 1996 Summer Olympics. The court ruled that the victims of the bombing could go forward with a lawsuit that claims negligent security allowed the tragedy to happen.

Committee members said the security level was high on the day of the bombing, and several hundred police, private security officers and trained volunteers were present.

Although the court's ruling does not point to a specific product, service or technology, the plaintiffs could easily sue the manufacturer of the metal detectors or the provider of security services for failing to detect the bomb.

If we are to protect our citizens from future attacks, metal detectors and other such devices will play a crucial role. But will innovation be stifled if the liability associated with the development, manufacturing and deployment of anti-terrorism products and technologies becomes too onerous? Will private-sector companies have an incentive to develop, produce and provide cutting-edge products, services and technologies?

Enter the Support Anti-Terrorism by Fostering Effective Technologies (Safety) Act, a provision of the Homeland Security Act of 2002 that went into effect in October 2003. It provides broad, groundbreaking reform to encourage the development of safe, effective anti-terrorism technologies and services.

It not only protects the sellers of anti-terrorism services and products from liability but also the entire supply chain.

With the Safety Act in place, one might think

companies are lined up outside the door of the Homeland Security Department to obtain certification for their products and services; however, the opposite

is true.

Only 19 companies have applied for certification under this new law that went into effect nearly nine months ago.

DHS officials have given private industry an opportunity, and now private industry must deliver the best, most innovative products, services and technologies as the United States wages the war against terrorism.

Fear of liability lawsuits is no longer an excuse for not producing the innovative products and services that the war on terrorism demands.

Biagini is a partner and leader of the product liability defense practice at McKenna Long and Aldridge LLP.

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