Wade Clark Mulcahy LLP

<p style="text-align: justify;">Sweaters that can automatically sense colder temperatures and emit heat; business suits that can automatically swap digital business cards; gym clothes that can gauge how hard your muscles are being strained; undergarments with biomedical sensors to monitor medical conditions, at first glance these seem like harmless innovations, which can improve and optimize our lives.  However, “smart clothing”, which is created with electronics woven into the literal fabric of an item, is opening up a new frontier of liability issues.</p>
<p style="text-align: justify;">In <em><a href="https://www.wcmlaw.com/wp-content/uploads/2020/01/Decrescentis-et-al.-v.-Lands-End-Inc..pdf">Decrescentis, et al. v. Lands' End, Inc.</a>,</em> flight attendants at Delta Airlines filed one of several lawsuits against the clothing manufacturer Lands’ End for adverse health effects and injuries sustained from “smart” fabrics used in Delta uniforms made by Lands’ End.  In this lawsuit, as well as a related class action lawsuit filed in Wisconsin (<em>Andrews et al. v. Lands’ End</em>, Case: 3:19-cv-01066 (W.D. Wis., Filed: 12/31/19)), Delta flight attendants claimed that the mandatory uniforms made from “smart” fabrics, designed to be high-stretch, wrinkle-resistant, stain-resistant, waterproof, anti-static, and deodorizing, led to health problems.</p>
<p style="text-align: justify;">The lawsuit alleged that the uniforms included heavy metals and chemicals, such as mercury, formaldehyde, fluorine, and chromium, at higher-than-safe levels.  The named plaintiffs alleged that they suffered migraines, skin reactions, autoimmune conditions, low white blood cell counts, breathing difficulties, fatigue, swollen lymph nodes, and other health problems.  The plaintiffs’ claims against Lands’ End included negligence, strict design defects, and manufacturing defects.</p>
<p style="text-align: justify;">But less clear-cut issues will surely arise as well.  If “smart” garments compromise privacy or lead to data breaches, how will damages be assessed? As the use of “smart” clothing and textiles becomes more commonplace in all facets of modern life, courts nationwide will have to wrestle with how to apply current jurisprudence.  What product liability rules should govern when the physical object of the device is combined with software?   Is software a “product” for purposes of strict liability?  What are the coverage implications? We will continue to keep you posted as this case continues to unfold.</p>
<p style="text-align: justify;">Thank you to Shira Straus for her contribution to this post.  Please email <a href="mailto:chayes@wcmlaw.com">Colleen E. Hayes</a> with any questions.</p>