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‘Smart’ Clothing: A New Liability Frontier?

Michael Hoenig January 14, 2020 in  News

On the last day of 2019, a class action lawsuit was filed in a Wisconsin federal court against the clothing manufacturer, Lands’ End. The named plaintiffs are hundreds of Delta Airlines flight attendants who claim that uniforms unveiled in May 2018 have caused them adverse health effects and injuries. Andrews et al. v. Lands’ End, Case: 3:19-cv-01066 (W.D. Wis., Filed: 12/31/19). The required uniforms, created by fashion designer Zac Posen, are alleged to have caused employees to break out in skin rashes, suffer migraines, experience breathing difficulties, swollen lymph nodes, fatigue and other problems. The complaint advances seven causes of action—negligence, strict design defect, manufacturing defect, failure to warn, breaches of express and implied warranties, and violation of the Magnuson-Moss Warranty Act.

 

It also seeks injunctive relief seeking a recall of all Delta uniforms and to create a medical monitoring fund to help employees seeking diagnosis and treatment of the assorted health problems. The new lawsuit follows a similar class action filed earlier in a Wisconsin federal court on Oct. 3, 2019. Both lawsuits claim that the chemicals and finishes used to create high-stretch, wrinkle-and-stain-resistant, waterproof, anti-static and deodorizing garments for the uniforms led to the health problems. Testing of the employees’ uniforms allegedly found several heavy metals and chemicals present above safe levels, including mercury, formaldehyde, fluorine and chromium. S.K. Mesch, “Lands’ End sued by Delta Air Lines Employees Who Claim Uniforms Cause Health Problems,” Wis. State J., Jan. 4, 2020.

 

Actually, another federal lawsuit against Lands’ End criticizing Delta uniforms was filed last May in the Southern District of New York. There, Monica DeCrescentis, a Delta flight attendant, alleged she suffered headaches, skin reactions and a low white blood cell count. The suit also claims the uniform permanently stained items it came in contact with, including sheets, towels and her bathtub. The lawsuit targets the purple dye, called “Passport plum,” as an irritant as well as red dye that bleeds and stains the wearer’s skin and belongings. See “Delta Flight Attendants Say Zac Posen Uniforms Caused Health Issues,” N.Y. Post, May 24, 2019. Other injuries claimed in the series of suits include respiratory distress, contact dermatitis, blisters, boils, hives, nosebleeds, ringing ears, muscle weakness and autoimmune conditions.

 

The foregoing lawsuits reminded this writer that the booming tech era concept known as the “Internet of Things” (IoT)—networks of smart devices or “things” that are connected to the Internet, to each other and that collect and exchange data and permit action—is now moving, in a big way, to include clothing. For many, it’s likely difficult to grasp that clothing is getting “smart” or “connected,” seemingly following the lead of IoT “wearables” such as smart watches, smart glasses, fitness trackers, skin-patchable devices, and self-powered wearables implanted into the human body. But grasp it we must. It’s no longer a case of science fiction. The development of the “Internet-of-Smart-Clothing” has dramatically leapt into the commercial arena and is likely to mushroom rapidly. T.M. Fernández-Caramés and P. Fraga-Lamas, “Towards the Internet-of-Smart-Clothing: A Review of IoT Wearables and Garments for Creating Intelligent Connected E-Textiles” (Dec. 7, 2018); A. Hanuska & others, “Smart Clothing Market Analysis” (UC Berkeley Engineering, Sutardja Center for Entrepreneurship & Technology).

 

One writer reports that (1) Google launched a connected clothing company called Project Jacquard in 2017 and has since partnered with retailers like Levi Strauss & Co. to create jackets that can answer phone calls; (2) Samsung made business suits that can digitally swap business cards; (3) Sensorel, a startup makes “mood sensing” sweaters that can improve communication at work; (4) Ministry of Supply, a startup crates temperature-regulating sweaters that can help employees stay comfortable at the office; (5) Ekso Bionics, a bionics startup creates exoskeleton supersuits that help employees lift more weight. Conor Grant, “Can connected clothes make people more productive workers?,” The Hustle (Jan. 6, 2020).

 

Practical Applications

 

Peter Brown of Mouser Electronics writes that “smart clothing” or “e-textiles” is an emerging market, still in its infancy, for healthcare—embracing the idea of weaving electronics into a shirt, a blanket, or bandage, a knitted cap and other items that can perform specific healthcare functions. Practical applications are being used in hospitals and other care facilities. Says the author: “Smart clothing is seen as a way to revolutionize the practice of healthcare, and it’s hoped that a widespread use of garments used to monitor health with treatments could reduce reliance on costly equipment and a heavily burdened health care system.” Smart Clothing could track chronic disease and make patients more comfortable during a hospital stay. E-textiles consist of traditional fabric woven with conductive fibers, biomedical sensors, microcontrollers, fiber optics and wearable antennas. Metallic fibers are used that feel the same as traditional thread to the touch. Peter Brown, “The Future of Healthcare May Reside in Your Smart Clothes,” Mouser Electronics.

 

Rachel Arthur, a commentator on fashion, business and technology, wrote in Forbes, back in April 2016, that some 10 billion products in the apparel, accessories and footwear markets “are currently being individually digitally connected.” Rachel Arthur, “10 Billion Items of Connected Clothing: The Internet of Things Just Became a Lot More Fashionable,” Forbes (April 21, 2016). In addition to practical applications and upgraded conveniences to consumers, the sellers will be able to track and capture the analytics, helping to detect and stop counterfeit goods (some 5-7% of world trade goods).

 

In May 2019, writer Joseph Flynt described the “10 Best Smart Clothes of 2019.” He says “smart clothes” is a broad term for clothing which has some kind of advanced monitoring feature and connects to a smartphone app. “The first pieces of smart clothes were designed for fitness enthusiasts, but rapid advancements soon made it clear that everyone could benefit from one smart garment or another.” His “Best” choices in 2019 include: (1) the Mercury Intelligent Heated Jacket (adjusts its warmth based on the temperature of your body and its surroundings. It has thermostats and motion sensors to adjust heating elements on the go); (2) the Athos Care (line of gym clothes gauges how hard muscles are being strained with concrete metrics to improve workouts); (3) Levi’s Commuter X Jacquard (an iconic jacket with the latest in gesture recognition technology, allowing access to frequently-used commands on one’s smartphone). The list also includes Smart Yoga Pants, Smart Leggings, Athlete Recovery Sleepwear, Pulse Smart Sports Bra and Smart Socks.

 

Just as the Internet of Things on products and devices has spawned legal challenges when things go awry, we can expect that the IoT’s embrace of smart clothing, connected garments, e-textile wearables, and the like can produce new legal frontiers. Readers may recall my columns, “Eavesdropping and Spying by Smart TVs and Devices” (NYLJ, Sept. 6, 2019) and “The ‘Driverless’ Car Era: Liability Considerations” (NYLJ, Nov. 9, 2017), discussing a slew of lawsuits, liability concerns, insurance industry consequences and potential legal challenges. These kinds of challenges, tailored (pun intended) to the smart clothing industry, could become manifest. Indeed, the Delta Air Lines brouhaha over employees’ uniforms illustrates the potential dynamics of class actions and individual lawsuits regarding the adverse effects of smart clothes.

 

The regulatory and liability issues affecting the IoT world of devices are by now legion. See, e.g., J. E. Kirtley and S. Memmel, “Rewriting the ‘Book of the Machine’: Regulatory and Liability Issues for the Internet of Things,” 19 Minn. J. L., Sci. & Tech., 455 (2018); L. E. Gorman, “The Era of the Internet of Things: Can Product Liability Laws Keep Up?,” 84 Defense Counsel J., No. 3 (2017); G. Dickinson and J. D. Skinner, “Product Liability in the Internet of Things,” Products Liability & Mass Torts Blog (April 2, 2019).

 

Issues include what product liability rules should govern when the physical object of the device is combined with software. Courts are still wrestling with whether software is a product for purposes of strict liability. Then, if privacy is compromised by smart technology, how are damages related to privacy issues to be compensated? If there’s a security breach or hacking but the information is not shared, what are the damages? What will insurance policies—sure to adapt to the IoT world—consider to be covered or excluded? Will purchasers of smart devices or connected clothing be required to sign an agreement that waives rights to sue? Would that be enforceable?

 

Conclusion

 

Space limitations here limit our discussion on these and other complex liability topics. Our purpose here is to alert counsel and courts that the IoT device maelstrom of issues can be expected to spill over to smart clothing, connected garments and e-textile wearables. In that sense, the recent Delta Air Lines uniform health complaints and lawsuits seem to point to emergence of a new liability frontier.

Michael Hoenig is a member of Herzfeld & Rubin.