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Products Liability Newsletter

Design Defects and Product Liability Law

“Product liability” is the area of the law enabling recovery for those injured by defective products. Some commentators suggest it reflects a balance between the benefits that society as a whole reaps from technological developments versus harm to consumers when the products are defective and cause injury. Product liability is largely established by state laws, including actual case decisions, and there are considerable differences in principles and procedures concerning product liability among the various states.

Liability generally may extend to persons and entities throughout the “chain” of manufacture and distribution, such as manufacturers, wholesalers, distributors, retailers, inspectors, testing labs, and suppliers of component parts; those who actually cause the defect are liable. Persons who may bring a claim or file suit include purchasers, as well as anyone who was loaned or given the product, and sometimes those who were “foreseeably” injured by the use of a product.

Product Defects and Theories of Recovery for Injuries

Several types of defects may result in injury. Design defects are those inherent in the product and its design. Manufacturing defects occur where one or more versions of the product deviate from the design and turn out to be defective.

Although there are a number of theories upon which product liability can be based, including negligence of the manufacturer, breach of warranty and strict liability, these theories have common elements, such as requiring a showing that the product was “defective” in that the product was unreasonably dangerous when used as intended or used in a foreseeable manner.

Establishing a Design Defect in a Product – Restatement Standards

Courts often base their decisions on precedent established by courts of appeals and supreme courts, as well as scholarly works accepted and respected in the legal community. Examples of such works include “Restatements of the Law” published and updated periodically about various areas and aspects of the law, including product liability and design defects.

The section of the Restatement on design defects previously included a “consumer expectations” test for determining the existence of a design defect. Under this test, if the product is dangerous beyond that which would be contemplated by an ordinary consumer who purchases it with ordinary knowledge common to the community as to its characteristics, it may be considered defectively designed. Many criticized the imprecise nature of this “standard.”

In 1998, the 3rd Restatement on the subject revised this, substituting instead that a product may be defective if the foreseeable risks of injury could have been reduced or avoided by the adoption of a “reasonably alternative design.” Courts that have adopted this standard may require the claimant/plaintiff to produce an alternative design and show that it would have been safer. Many have criticized this new standard as placing too difficult and expensive a burden on the injured plaintiff.

Standards and Factors Applied By Courts

Establishing that the product is defective is not sufficient to establish liability; it must also be established that the product is “unreasonably dangerous”. There is no clear consensus among the courts as to the definition of “unreasonably dangerous”; different courts have adopted different standards in determining whether or not a product is “unreasonably dangerous”. Some courts have adopted the reasonably alternative design standard; other courts use it as merely one factor to be considered. Other courts use the consumer expectations test. In making a decision about liability, courts have also considered a variety of factors to evaluate product risk vs. utility, including:

  • Usefulness of the product.
  • Likelihood and severity of danger and damages from the design.
  • Feasibility of alternative designs.
  • Costs of an improved design and feasibility of spreading the cost by a price increase.
  • Ability to reduce the danger without impairing usefulness and making it too expensive.

Use of Expert Testimony

Expert testimony is often used to establish the existence of a reasonable alternative and to demonstrate other factors regarding design defects. An “expert witness” is generally considered as one qualified by knowledge, skill, experience, training, and/or education to give an opinion on issues that require scientific, technical, or other specialized knowledge.

A landmark U.S. Supreme Court decision in 1993, applicable only to federal courts, but influential on state courts, shifted the focus from whether the basis for the testimony was generally accepted in the scientific or other relevant community to a consideration and evaluation by the court of the relevance and reliability of proposed expert testimony, based on factors such as:

  • Whether the expert’s theory or technique can and has been tested, and if control standards were maintained during the testing to promote accuracy.
  • Whether the methodology has been subjected to peer review and published.
  • The statistical potential for errors in the methodology.
  • Whether there is widespread acceptance of it in the relevant scientific community.

District courts are given wide discretion to exclude expert testimony. As a result, expert testimony that is found lacking has frequently been excluded, dealing a fatal blow to a claimant’s chance of success. For example, in a case in the 8th Federal District where a worker was ejected from a stand-up power-lift truck, testimony of a proposed expert was excluded, because he admitted he was not an expert in design or engineering, and had neither operated nor observed such a truck.

State-of-the-Art and Other Defenses

Defendants may raise a variety of defenses, including misuse of the product. Depending on the state and subject to some limitations, the defendant manufacturer may also raise a “state-of-the-art” defense; at the time the product was made, there was no practical and technically feasible alternative design that would have prevented the injury without impairing product functions.

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