Product Liability & Safety 2026 Comparisons

As a US Territory, the Commonwealth of Puerto Rico is subject to federal laws and regulations. Thus, in addition to other applicable federal regulatory frameworks that are covered elsewhere in this publication, there are two principal sources of law that in some fashion regulate or affect the product safety legal regime in Puerto Rico: the Puerto Rico Civil Code of 2020 and Regulation No 7319 issued by the Puerto Rico Department for Consumer Affairs (“DACo” for its Spanish acronym or “Department”).

• The Puerto Rico Civil Code of 2020: Act 55 of 1 June 2020 (effective 180 days after its enactment or, depending on the circumstances, as provided by the Act itself) codified for the first time into law several provisions establishing strict civil liability upon designers, manufacturers and (depending on the circumstances) anyone in the distribution chain of a product, for “unreasonable defective products due to their design or manufacture”. See Statement of Motives, Act 55-2020 at p. 14. Although these provisions shall be discussed in further detail elsewhere in this chapter, they impose a post-design and manufacture mechanism that (through vindication in the courts) allows redress for any harm caused by unsafe or defective products.
• DACo Regulation No 7319: Effective as of 13 March 2007, Regulation No 7319 titled “Quality and Safety Regulation” regulates the quality and safety of all products for use and consumption in Puerto Rico, including prepared and packaged food. See Rule 2 of Regulation 7319 at p. 2. A “product” is defined as “any material thing that is the object of commerce”. Id., Rule 4(h) at p. 3. Regulation No 7319 prohibits sales of inferior, altered, or dangerous goods; prescribes disclosures and labelling; and, in food service, restricts the use of partially hydrogenated oils/trans fats to reduce cardiovascular risk. It also contains specific prohibitions regarding products, including expired products, products with manufacturing defects, deteriorated or used products, illegal products, dangerous products, dangerous products for children, discontinued products, useless products or products for professional use. Id., Rule 6 (A) to (I) at pp. 5-9.

Without considering applicable federal regulators that may have jurisdiction and are elsewhere contemplated in this publication, DACo is the main regulator for product safety and quality in Puerto Rico.

Act No 5 of 23 April 1973 created DACo as an executive department of the government of Puerto Rico (P.R. Stat Ann., Tit. 3 § 341(a)) with the purpose of “vindicat[ing] and implement[ing] the rights of the consumer, halt[ing] inflationary tendencies…” among others. P.R. Stat. Ann., Tit. 3 § 341(b). DACo’s organic statute empowers the agency to regulate unfair or deceptive practices, set and enforce consumer-protection regulations, investigate and conduct adjudicative proceedings. As part of its broad enumerated powers, DACo was specifically given the task of “… promot[ing] and establish[ing] standards for the quality, safety and genuineness in services and in the products for use and consumption and to require compliance therewith”. P.R. Stat. Ann., Tit. 3 § 341e(l).

DACo also has the power to impose, after due process considerations, fines of up to USD10,000 per infraction of Regulation 7319, and may consider the volume of business at the time of imposing such fine. See Regulation 7319, Section 11 at p. 19. There are no published cases from the Puerto Rico Supreme Court analysing Regulation 7319. There are, however, two cases that invalidated on due process grounds DACo’s imposition of fines for alleged violations of Regulation 7319. See DACo v J. Pica & Cía, No. KLRA20080657, 2009 WL 5736697 (P.R. App. Ct. Aug. 31, 2009) and Me Salvé, Inc. v DACo, No. KLRA201600029, 2016 WL 1358510 (P.R. App. Ct. Feb. 29, 2016). These two cases are not precedent but may be cited for their persuasive value. See Rule 11 of the Puerto Rico Court of Appeals, P.R. Stat. Ann., Tit. 4 Ap. XXII-B, R. 11.

Neither DACo Regulation No 7319 nor the Puerto Rico Civil Code of 2020 includes an express obligation to voluntarily commence corrective action. However, the Puerto Rico Supreme Court has validated in Puerto Rico, as a waivable, affirmative defence, the doctrine of mitigation of damages. See Fresh-O-Baking Co. v Molinos de P.R., 103 DPR 509, 520-521 (1975); Aponte v Cortés Express, 101 DPR 31, 36 (1973). The doctrine, if applicable, could serve to reduce any damages awarded due to a product safety claim that occurred after a voluntary safety or recall notice.

However, note that DACo Regulation No 7319 requires that whenever a United States or Puerto Rico agency orders a recall from the market of a product, “… the company selling the product in Puerto Rico shall notify the consuming public within 72 hours of learning of the circumstances that caused or would cause the product to be recalled from the market”. See Regulation 7319, Rule 7 at p. 10. The company selling the product in Puerto Rico shall use “the most effective means of communication available” to “provide broad public notice, in Spanish, of the recall of the product in question from the market”. Id. The communication must unequivocally state “all that is essential, necessary, and convenient” for consumers to know about the recall, including the risks posed by the product and the economic aspects of the recall. These requirements also apply where a company elects to undertake a voluntary recall of its products.

Other than the recall-triggered duty to notify the public described in 1.3 Obligations to Commence Corrective Action, Puerto Rico’s consumer-protection framework does not impose a general duty to report product safety issues to DACo or another authority.

In addition to any civil liability related to any alleged harm caused by product safety complaints, DACo has broad powers to investigate, prosecute, fine, test, and force corrective action regarding alleged safety issues (either complained about or voluntarily admitted by a manufacturer or designer of a product) and violations to Regulation No 7319, such as:

• Rule 7(A) at p. 10 (notice of market recall of products);
• Rule 7(B) at p. 11 (mandatory safety testing commanded by DACo and paid by a firm that sells any products in Puerto Rico);
• Rule 7(C) at p. 11 (requiring any business that sells products in Puerto Rico to provide samples of products); and
• Rule 8 at p. 12 (exceptions to regulations regarding labelling in Spanish).

DACo is authorised to impose fines of up to USD10,000 per infraction and may factor into the fine calculation the volume of business and/or small-business status. Id., Rule 11 at p. 19. DACo Regulation No 9377, titled “Regulation for the Imposition of Administrative Fines”, contains further details and parameters for the imposition of administrative fines.

Although there is no publicly available information on current companies being prosecuted or fined for breaching Regulation No 7319, there is a notable recall notice handled by the Department related to the DeltaMaxx battery distributed locally by Power Solar, LLC. Another example of DACo commercial “raids” took place from 14 to 15 April 2025 as part of a campaign to educate the consumer as to the scope and enforcement powers of the Department. Most of the referenced violations regarding product quality or safety were related to expiration dates on food items. It is worth noting that the two cases cited in 1.2 Regulatory Authorities for Product Safety from the Puerto Rico Court of Appeals involve fines levied for expired food items.

Puerto Rico law recognises the following main causes of action for product liability.

Negligence

Negligence-based claims are brought under Article 1536 of the Civil Code of 2020 (formerly Article 1802 of the Civil Code of 1930), which provides that “any person who, through fault or negligence causes damage to another, is obligated to repair it”. Pre-2020 jurisprudence under former Article 1802 remains instructive, as courts apply Article 1802 case law to Article 1536. Distinct from strict liability claims, negligence claims focus on the defendant’s conduct: whether the defendant breached a duty of care it owed to the plaintiff. The elements of a negligence claim are:

• a duty of care owed by the defendant;
• a breach of that duty of care by the defendant’s act or omission;
• damages suffered by the plaintiff; and
• causal nexus (adequate or proximate causation) between the defendant’s breach of duty and the plaintiff’s damages.

In the product liability context, the defendants owe a duty of reasonable care in the design and manufacturing of the product and in the provision of adequate warnings and instructions. However, strict liability provides the principal vehicle for personal injury claims.

Article 1538 of the Civil Code of 2020 now authorises the imposition of punitive damages not to exceed the amount of the actual damages caused, in cases where the defendant’s act or omission constitutes a criminal offence, is carried out fraudulently or with gross disregard for life, safety or property of the plaintiff.

Strict Liability

Puerto Rico is principally a civil law jurisdiction, but in the realm of torts, it has followed and adopted many common law doctrines, particularly in the product liability area. Because there is a new Civil Code of 2020 that codified strict product liability for the first time, a brief overview of the development of Puerto Rico’s product liability doctrine prior to the adoption of the Civil Code of 2020 is necessary to understand the current product liability landscape.

Prior to the adoption of the Civil Code of 2020, product liability stemmed from Puerto Rico’s general tort statute, Article 1802 of the Civil Code of 1930. In 1969, the PR Supreme Court adopted strict product liability following California’s landmark case of Greenman v Yuba Power Products, Inc., 377 P.2d 897 (Cal. 1963) and general principles of the Restatement (Second) of Torts § 402A. See Mendoza v Cervecería Corona, 97 D.P.R. 499 (1969). Over time, Puerto Rico’s jurisprudence organised strict liability around three defect types: manufacturing, design, and failure to warn or provide adequate instructions.

Foundational cases after the 1969 decision in Mendoza extended and shaped the doctrine following principally California case law, including the adoption of California’s Barker v Lull Engineering Co., Inc., 573 P.2d 443 (1978), the dual-path approach for design defects (see Rivera Santana v Super. Pkg., Inc. et al., 132 DPR 115 (1992)), and general principles of the Restatement (Second) of Torts §402A, with the crucial exception that the product defect did not have to be “unreasonably dangerous” as §402A of the Restatement provided (see Montero Saldaña v Amer. Motors Corp., 107 DPR 452 (1978)).

By 2016, the PR Supreme Court synthesised the elements for strict liability under Puerto Rico law as requiring the plaintiff to prove: (i) a defect (manufacturing, design, or warnings/instructions); (ii) existing when the product left the defendant’s control; (iii) the defendant engaged in the business of manufacturing, selling or distributing the product; (iv) the defect proximately caused the plaintiff’s injury; and (v) the plaintiff’s use of the product was reasonable and foreseeable. See Rodríguez Méndez v Laser Eye, 195 DPR 769, 780-784 (2016) (summarising doctrinal development and reaffirming core elements of strict liability in Puerto Rico).

On 28 November 2020, the Civil Code of 2020 came into effect, and it now codifies in Articles 1542-1544 the core contours of Puerto Rico’s strict product liability jurisprudence, though with certain modifications. Though the PR Supreme Court has yet to interpret the new strict product liability articles adopted in the Civil Code of 2020, it is presumed that the legislature adopted the substantive doctrine as it had been developed by Puerto Rico’s jurisprudence prior to its adoption.

Pursuant to Article 1542 of the Civil Code of 2020, PR Stat. Ann., Tit. 31 §10807, any person that sells in the flow of commerce a product that by its design or manufacturing is unreasonably dangerous shall be liable for the damages caused by said product regardless of fault or negligence. Of note, strict liability is now triggered by a product that is “unreasonably dangerous” as opposed to a product that is “defective”. Nonetheless, the focus of strict liability claims remains on the product’s condition – whether the product is “unreasonably dangerous” by its design or manufacturing.

Manufacturing defect

Article 1543 of the Civil Code of 2020, PR Stat. Ann., Tit. 31 §10808, provides that a product is unreasonably dangerous by its manufacturing when it deviates from its design or it does not meet the safety expectations of the ordinary consumer who uses said product for the purpose for which it was intended or for a purpose that is reasonably foreseeable.

Up until the adoption of the Civil Code of 2020, a manufacturing defect had been defined as that of a product which fails to match the average quality of similar products. See Montero Saldaña v Amer. Motors Corp., 107 DPR 452, 462 (1978). The Civil Code of 2020 now expands the definition to include products that fail to meet the safety expectations of the ordinary consumer. This new addition can be interpreted as the codification of the consumer-expectations test that had been adopted by the PR Supreme Court for design defect claims, now made applicable to manufacturing defects.

Design defect

Article 1544 of the Civil Code of 2020, PR Stat. Ann., Tit. 31 §10809, provides that a product is unreasonably dangerous by its design when:

• its quality and safety do not meet the expectations of an ordinary consumer; or
• the design of the product caused the damage and those who intervene in the distribution chain do not prove that the design is reasonable, considering, among other things:
1. the usefulness of the product;
2. the technological limitations to design it in a safer manner at a reasonable cost;
3. the unreasonable risk that could be foreseen at the time of design; and
4. the instructions or warnings provided for the proper use of the product.

This statutory language suggests that the new Article 1544 has codified the dual approach established by California’s Barker v Lull Engineering Co., Inc., 573 P.2d 443 (1978) for design defects that had been adopted in Puerto Rico by Rivera Santana v Super. Pkg., Inc. et al., 132 DPR 115 (1992), also known as the consumer-expectations test (Article 1544(a)) and the risk-utility test (Article 1544(b)).

Failure to warn or provide adequate instructions

The Civil Code of 2020 did not codify a failure to warn or to provide adequate instructions claim independently, and instead only mentions the provision of warnings or instructions as one of the factors to consider in determining the reasonableness of the design under Article 1544(b) for design defects. Commentators on the legislative history suggest that the failure to warn or to provide adequate instructions claim was excluded because it is more akin to negligence as opposed to strict liability. Another explanation could be that Article 1542 of the Civil Code of 2020 specifically codified the strict liability of all those involved in the distribution chain, not just of the manufacturer, and excluded the failure to warn or to provide adequate instructions claim from the statute for that reason. Until the PR Supreme Court has the opportunity to interpret the statutory provisions of the Civil Code of 2020 in the product liability context, courts are likely to follow the pre-2020 norm.

The leading authorities on failure to warn claims prior to the adoption of the Civil Code of 2020 are Aponte v Sears Roebuck de P.R., Inc., 144 DPR 830 (1998) and Rodríguez Méndez v Laser Eye, 195 DPR 769 (2016), pursuant to which a manufacturer could be held strictly liable if:

• it knew or should have known of the inherent danger of the product;
• it did not include warnings or instructions, or the ones given were inadequate;
• the lack of warnings or instructions made the product inherently dangerous; and
• the lack of warnings or instructions was the proximate cause of the plaintiff’s damages.

The manufacturer’s duty to warn and provide instructions include:

• providing adequate instructions for the product use;
• warning about potential risks in the use of the product, whether latent or hidden;
• warning about harmful consequences of using the product incorrectly; and
• providing instructions on how to avoid injuries.

In Rodríguez Méndez, a medical malpractice and product liability suit was brought against a doctor and the distributor of the equipment used to perform the surgery. The PR Supreme Court dismissed the claim against the distributor given the plaintiff’s failure to prove a defect and causation, but emphasised that the distributor could have been held strictly liable if the doctor’s failure to maintain the equipment was a result of insufficient or inadequate warnings and instructions for proper care and maintenance of the product.

Breach of Warranty

In Puerto Rico, tort-based breach of warranty claims for personal injuries or property damage other than to the product itself are tantamount to strict product liability. However, when framed as a contract claim, a breach of warranty claim can be brought pursuant to Article 1261 of the Civil Code of 2020, PR Stat. Ann., Tit. 31 §9851, which provides that persons who transfer goods for valuable consideration are liable for hidden defects even if unaware of them. In these cases, Article 1263 of the Civil Code of 2020, PR Stat. Ann., Tit. 31 §9853, provides the plaintiff with the option to claim the correction or repair of the good, the delivery of an equivalent good, or to totally or partially rescind the contract. The plaintiff would have the right to compensation for damages only if the defendant acted with dolo (deceit).

Once the presence of a defect is established, the resulting damages suffered may be claimed by any person who could foreseeably be at risk from using the product, without the need for contractual privity with the manufacturer. See Rodríguez Méndez v Laser Eye, 195 DPR 769, 783 (2016).

Negligence and strict product liability claims must be brought within a one-year statute of limitations period. Puerto Rico applies the “teoría cognoscitiva del daño” (knowledge-of-injury theory), meaning that the statute of limitations begins to run when the plaintiff knew or should have known of the existence of the damage, who caused it and the necessary elements to effectively exercise the cause of action. However, once the plaintiff has been put on notice of facts that create a reasonable basis for a potential claim, they must employ the due diligence that is expected of a reasonable lay person to seek answers and promptly assert their rights.

Contractual-based breach of warranty claims for hidden defects are subject to a six-month statute of limitations period, counted from the delivery of the transferred goods or from the last act of communication between the parties.

Product liability actions can be brought either in the Superior Courts of the Commonwealth of Puerto Rico (“Tribunal de Primera Instancia”) or in the federal US District Court for the District of Puerto Rico.

The Superior Courts of Puerto Rico have general jurisdiction over any case or controversy that arises within the territorial limits of the Commonwealth of Puerto Rico. Personal jurisdiction exists over domiciled persons or entities and non-domiciled persons or entities who have any contact that makes asserting jurisdiction compatible with the applicable constitutional provisions. For non-domiciled persons or entities, personal jurisdiction may be asserted when there is an express or tacit submission to the jurisdiction, or when the non-domiciled party has or has had sufficient minimum contacts with Puerto Rico and the claim asserted arises from or is related to such minimum contacts.

The federal US District Court for the District of Puerto Rico only has jurisdiction over cases arising under the US Constitution, federal laws or treatises (known as “federal question” jurisdiction; see 28 U.S.C. §1331) or over cases where each plaintiff is a citizen of a different state or foreign country than each defendant and the amount in controversy exceeds USD75,000 (also known as “diversity jurisdiction”; see 28 U.S.C. §1332).

Note that Article 60 of the Civil Code of 2020, PR Stat. Ann., Tit. 31 §5427, adopts a conflict of laws provision for product liability, providing that the person who suffers damages as a result of a product may elect between the remedy provided by the laws of Puerto Rico or by the laws of the state in which the product was designed, manufactured or acquired. However, the foregoing provision will not apply to the manufacturer, designer or seller of the product who could not have foreseen the presence or availability of the product that caused the damage – or of any other product of the same type – in Puerto Rico through ordinary commercial channels.

There are no mandatory, generally applicable pre-suit notice requirements or protocols specific to product liability claims in Puerto Rico. However, contractual breach of warranty claims for hidden defects are subject to a six-month statute of limitations period, counted from the delivery of the transferred goods or from the last act of communication between the parties, thus requiring prior notice.

The obligation to preserve all relevant evidence arises as soon as the person is on notice of a possible claim against them. See PR Rule 23.1(d) of Civil Procedure. The obligation also exists if there is a legal or ethical duty to preserve such evidence, if the person voluntarily assumed the obligation, or if it arises from the particular circumstances of the case. Id. Any party to an action has the obligation to preserve evidence that could be discoverable, even if it has not been requested in discovery. Id. Failure to comply with these obligations is subject to economic or any other type of sanction that the court in its discretion deems fit, including contempt of court. See PR Rule 23.1 of Civil Procedure.

Puerto Rico’s Rule 23.1(a) of Civil Procedure defines the scope of discovery as “any matter, not privileged, that is relevant to the matter in controversy in the pending litigation, whether it relates to the claim or defense of any other party, including the existence, description, nature, custody, condition and location of any books, electronically stored information, documents or other tangible objects and the identity and address of persons who know relevant facts”. As long as there is reasonable probability that the information sought will lead to the discovery of admissible evidence, a party may not object to discovery on the grounds that the requested information is inadmissible at trial. Id. Documents and objects that, prior to the lawsuit or for the trial, have been prepared by or for another party, or by or for the representative of said party, including its attorney, consultant, guarantor, insurer or agent, are all discoverable. However, mental impressions, conclusions, opinions or legal theories about the case of the attorney or any other representative of a party, will be outside the scope of discovery. Id.

PR Rule 31 of Civil Procedure governs the process for the production of non-privileged documents, electronically stored information, books, accounts, letters, photographs, objects or tangible things, that constitute or contain evidence related to any of the matters that are within the scope of discovery and that are in or under the producing party’s possession, custody or control. Third parties can be subpoenaed to produce documents and/or testify at a deposition or trial in accordance with the procedures established in PR Rule 40 of Civil Procedure.

Expert evidence and its admissibility are governed by Puerto Rico’s Rules of Evidence 702 through 707.

Pursuant to Rule 703, any person is qualified to testify as an expert if they possess sufficient specialised knowledge, skill, experience, training or instruction to qualify them as an expert on the matter on which they will testify. Accordingly, Rule 702 provides that when scientific, technical or specialised knowledge is helpful for the judge to understand the evidence or determine a fact in controversy, a witness who is qualified as an expert may testify in the form of an opinion or otherwise, and the probative value of the testimony will depend, among others, on:

• whether the testimony is based on sufficient facts or information;
• whether the testimony is the product of reliable principles and methods;
• whether the witness applied the principles and methods reliably to the facts of the case;
• whether the principle underlying the testimony has been generally accepted in the scientific community;
• the qualifications or credentials of the witness, and
• the bias of the witness.

An expert’s opinions or inferences may be based on facts or data perceived by them or within their personal knowledge or reported to them before or during the trial or hearing. See PR Rule 704 of Evidence. The facts or data do not have to be admissible in evidence if experts in that field reasonably rely on it to form opinions or make inferences about the matter in question, but the proponent of the opinion may not disclose them to the jury unless the court determines that their probative value in assisting the jury to evaluate the expert testimony is substantially greater than their prejudicial effect. Id.

The plaintiff in all product liability cases bears the burden of proving, by a preponderance of the evidence, that the product is unreasonably dangerous (that a defect exists) and that said unreasonably dangerous condition (the defect) caused the damages claimed. All the required elements of the cause of action must be proven. It should be noted, however, that in design defect claims, Article 1544(b) of the new Civil Code of 2020, in codifying the risk-utility test, appears to have created a burden-shifting framework where, once the plaintiff has established that a defect exists and that the defect caused the harm, the burden of proving the reasonableness of the design shifts to the defendant.

Claims can be brought either in the Superior Courts of the Commonwealth of Puerto Rico, where the case will be tried and decided by a judge, or in the US District Court for the District of Puerto Rico, where the case would be decided by a jury.

There are no specific appellate rules or mechanisms for product liability cases.

Once a final judgment has been entered and notified, Rule 47 of the Puerto Rico Rules of Civil Procedure provides the affected party with 15 days to file a motion for reconsideration. Provided the motion complies with Rule 47, it tolls the time for filing an appeal. When the court finally adjudicates the motion for reconsideration, the party will have a jurisdictional period of 30 days to file an appeal in the Puerto Rico Court of Appeals. See PR Rule 52.2 of Civil Procedure. Once the Court of Appeals enters judgment, the affected party has a jurisdictional period of 30 days to file a discretionary petition for certiorari to the PR Supreme Court. Id.

The PR Rules of Civil Procedure contemplate judicial review of certain interlocutory orders and resolutions through petitions for certiorari to the Court of Appeals, which must be filed within 30 days from the order or resolution. Id. If the interlocutory order or resolution is related to injunctive relief, provisional remedies or to the denial of a dispositive motion, the Court of Appeals has no discretion to decide whether to review the petition. See PR Rule 52.1 of Civil Procedure. However, the Court of Appeals has the discretion to decide whether to review the petition if the interlocutory order or resolution is related to the admissibility of fact witnesses or essential experts, matters relating to evidentiary privileges, entries of default, in cases of family relations and public interest, or in any other circumstance in which waiting for an appeal would constitute an irremediable failure of justice. Id.

The following are among the most common affirmative defences to product liability claims.

• Substantial Modification or Alteration: A plaintiff is barred from recovery when the injuries resulted from alterations or substantial modifications made by a third party to the product that rendered it unsafe or defective.
• Unforeseeable Misuse: A seller or manufacturer is only liable for damages caused by a product that was used in a reasonably foreseeable manner.
• Comparative Fault or Negligence: Where the plaintiff’s conduct is found to have contributed to the damage suffered, the award of damages will be apportioned based on the parties’ respective percentages of fault.
• Lack of Causation: A seller or manufacturer is only liable when the product defect was the proximate cause of the claimed injury.
• Statute of Limitations: Negligence and strict liability claims must be brought within one year from the date in which the plaintiff knew or should have known of the necessary elements to bring their claim.
• Economic Loss Rule: The plaintiff may not recover in tort when a defective product harms only the product itself, instead of a person or other property. While not specifically adopted in Puerto Rico, the US Court of Appeals for the First Circuit has held that the “Puerto Rico Supreme Court would rule that the economic loss rule bars an action under Article 1802 where a defective product harms only itself”. Isla Nena Air Services, Inc. v Cessna Aircraft Co., 449 F.3d 85, 88 (1st Cir. 2006).
• Learned Intermediary: Manufacturers of prescription drugs or medical devices fulfil their duty to warn consumers of risks by providing adequate information to the prescribing physician (the “learned intermediary”) rather than the patient directly. It is understood that “the prescribing physician, as the ‘learned intermediary’ standing between the manufacturer and consumer/patient, is generally in the best position to evaluate the potential risks and benefits of ingesting a certain drug and to advise the patient accordingly”. Mendez Montes De Oca v Aventis Pharma, 579 F. Supp. 2d 222, 229 (D.P.R. 2008).

There are other, non-absolute, product liability defences that manufacturers and sellers commonly raise in related actions, like state of the art, compliance with applicable safety standards, lack of defect, among others, but these usually require development and some element of proof.

To the extent that proof of negligence is not required to establish strict product liability, regulatory compliance will not necessarily preclude a finding of strict liability. However, it could be relevant towards demonstrating the reasonableness of the design in a design defect claim under Article 1544(b) of the new Civil Code of 2020 if, depending on the particular circumstances, regulatory compliance or industry standards may have had some incidence on the feasibility of a safer design at a reasonable cost given the technological limitations or on the adequacy of instructions or warnings. Regulatory compliance can also be a relevant consideration against the imposition of punitive damages. In negligence claims, compliance or failure to comply with regulations can be relevant towards negating a breach of duty or establishing the breach.

PR Rule 44.1 of Civil Procedure governs the procedure for costs and attorney’s fees, including in the appellate level.

The prevailing party is entitled to recover the costs and expenses “necessarily incurred” in the litigation or that the court, in its discretion, deems that one party must reimburse to the other. The prevailing party has ten days from the entry of judgment to file a memorandum of costs, which must be either sworn by the party or include an attorney(s) certification that the detailed costs and expenses are correct and were necessary for the litigation. If the adverse party does not oppose the memorandum within ten days of its filing, the court will approve it and may eliminate any amounts deemed inappropriate after affording the requesting party opportunity to justify said amounts. The court’s decision is revisable by the Court of Appeals through a petition for certiorari.

Ordinary office expenses, such as postage stamps or messengers, are not recoverable as costs. Recovery of a party’s expert costs is allowed but exceptional, and it will be awarded only when the expert’s costs are reasonable and justified. In determining whether to award expert costs, courts look to the expert’s credentials, and the nature and usefulness of the expert testimony for the prevailing party’s theory. The determining factor is that the costs were necessary for the litigation.

The general rule is that each party shall bear their own attorney’s fees. However, the prevailing party can recover reasonable attorney’s fees only if the court, in its discretion, finds that the adverse party or its attorney(s) incurred in frivolous or obstinate conduct during the litigation.

Contingency fees are allowed, though with certain limitations. Contingency fees must be agreed to in writing, and in tort actions, the attorney cannot charge a contingency fee that exceeds 33% of the final award, or 25% if the client is a minor or mentally incapacitated. Courts can authorise a contingency fee of up to 33% of the final award when the client is a minor or mentally incapacitated only if the attorney presents sufficient justification.

Third-party litigation funding is uncommon. While there is no specific law barring this practice, ethical considerations, such as ensuring that the attorney is not improperly influenced in his or her decision-making and professional judgement, must be complied with.

Class action proceedings are available if the requirements established in PR Rule 20 of Civil Procedure are met. These requirements include numerosity, commonality, typicality of claims, adequacy of representation, and the need to avoid the risks created by separate proceedings of inconsistent adjudications or individual adjudications that ultimately affect class interests. See PR Rules 20.1 and 20.2 of Civil Procedure. Class action proceedings are rare in our jurisdiction.

Alternatively, PR Rule 38.1 of Civil Procedure provides for the consolidation of pending actions with common issues of facts or law. The determination is within the court’s discretion, guided by factors such as whether consolidation would promote judicial efficiency and economy, avoid duplicative proceedings and inconsistent adjudications, and the identity of the claims and parties.

Finally, Puerto Rico’s Rules for Complex Civil Litigation Cases (P.R. Stat. Ann, Tit. 4 Ap. XXVII) functions as the local equivalent to the federal multi-district litigation (MDL) procedures. The rules define a complex civil litigation case as one whose circumstances require specialised judicial management – declared as such in accordance with Rules 4 and 5 – with the objective of avoiding unnecessary burdens on the litigants or the court and enabling the efficient judicial administration of the proceedings.

In determining whether a case qualifies as complex litigation, Rule 5 requires the courts to consider multiple factors, such as:

• multiplicity of the parties, claims or defences;
• extensive volume of evidence;
• whether there are intricate factual or legal controversies requiring extensive or unusual documentary and testimonial evidence;
• nature of the remedy(ies) sought;
• complexity at the appellate stage;
• if the case is certified as a class action;
• if it involves product liability cases; and
• intensity of pre-trial activity.

A certified class action suit can qualify as a complex civil litigation case, but it does not need to be a class action to qualify as such.

There have not been any significant PR Supreme Court decisions on product liability in nearly ten years. The last two significant decisions were Rodríguez Mendez v Laser Eye, 195 DPR 769 (2016) and González-Caban v JR Seafood, 199 DPR 234 (2017), both decided well before the adoption of the new Civil Code of 2020.

In Rodríguez-Mendez, the plaintiff developed an eye condition after receiving laser eye surgery, and brought a medical malpractice and product liability suit against the doctor and the distributor of the equipment used to perform the surgery. Though the claim against the distributor was dismissed given the plaintiff’s failure to prove a defect and causation, the PR Supreme Court emphasised that the distributor could have been held strictly liable if the doctor’s failure to maintain the equipment was a result of insufficient or inadequate warnings and instructions for proper care and maintenance. In González-Caban, the US District Court for the District of Puerto Rico certified the issue to the PR Supreme Court to determine whether strict liability applied to the sale of shrimp contaminated with a highly toxic natural neurotoxin. The PR Supreme Court held that it did not, because the “defect” in the shrimp was not the result of a manufacturing process.

The PR Supreme Court has yet to interpret the new product liability dispositions codified in the Civil Code of 2020.

The codification of strict product liability in the new Civil Code of 2020, though presumed to have been drafted with the doctrine developed through judicial precedent before its adoption, is starting to cause issues of interpretation in product liability cases.

Prior to its adoption, the PR Supreme Court had rejected the “unreasonably dangerous” standard of the Restatement (Second) of Torts § 402A and had instead focused on whether the product deviated from its intended design or failed to meet the average quality of similar products. Now, the Civil Code of 2020 codifies strict liability of those in the chain of commerce who sell a product that is “unreasonably dangerous” by its design or manufacturing, as opposed to a product that is “defective”, and it expanded the definition of a manufacturing defect, combining the “deviation-from-design” standard with the “consumer expectations” test.

The Civil Code of 2020 also codified the dual approach for design defects under the “consumer expectations” test and “risk-utility” test, seemingly codifying the burden-shifting framework under the “risk-utility” test. Finally, in codifying strict liability of those who introduce an unreasonably dangerous product into the chain of commerce, the Civil Code of 2020 appears to have left out lack of or insufficient warnings or instructions from the definition. The Civil Code of 2020 only contemplates warnings and instructions as one of the relevant factors to consider in determining the reasonableness of the design under the burden-shifting framework of the risk-utility test for design defects.

The strict product liability dispositions codified in the new Civil Code of 2020 need to be clarified and interpreted to understand how they impact the product liability doctrine that for decades had been developed in Puerto Rico through judicial precedent.

For instance, it is unclear whether the omission of lack of or insufficient warnings or instructions in Article 1542 of the Civil Code of 2020’s codification of strict product liability implies that failure to warn or to provide adequate instructions no longer triggers strict liability and instead gives rise only to a negligence claim. Similarly, judicial precedent relied upon in our jurisdiction established that the consumer expectations test, used only for design defects, could not be the basis of liability when it involved complex technical matters outside of the knowledge of the everyday consumer. The Civil Code of 2020 now adopted that test and appears to have made it applicable to manufacturing defects, potentially broadening the basis for establishing a manufacturing defect claim. Moreover, product liability plaintiffs are now suggesting that the codification of the consumer expectations test implies that liability can be established based on the ordinary consumer’s expectations regardless of its complex and technical nature.