Practice Tip: Trying the Design Defect Case

In a strict-liability design defect case, the plaintiff must prove the product was not “reasonably safe,” which is the same standard as a negligence case. To prove a product is not “reasonably safe,” the plaintiff must show that a product's utility exceeded its risks. Therefore, the inquiry in such a case is similar to that in a negligence case in that an assessment of the manufacturer's conduct is virtually inevitable. Many states require proof that an alternative, safer design was available, a design that would have left the product functional and reasonably priced. This “risk vs. utility” analysis plays into the hands of the defendant at trial in several ways. A
manufacturer usually has teams of design engineers who design its products, industrial engineers that design and produce the machinery that manufactures the product, and other specialists whose job it is to calculate the costs associated with changing either.

Retaining Experts

In order to make his prima facie case, the plaintiff must retain experts to present testimony, not only about the state of the art reached by science at the time the product was designed and manufactured, but on alternative designs that should have been used and the costs associated with manufacturing and marketing such alternatives. Rarely can a plaintiff locate one person who is qualified to testify on all of those subjects. He will need several experts. Such evidence opens the courthouse door to permit a manufacturer to march in his engineering staff and quality control specialists to explain why its product could not have been designed in the manner the plaintiff claims, why such a design would have put different users at risk or why the design would have been too expensive to manufacture and market.

Dueling Experts

The trial becomes focused on the plaintiff's expert, who rarely has the credentials or expertise equal to those of the defendant's witnesses. Moreover, the plaintiff will be unable to afford the quality of experts available to the defendant except in the most serious injury cases. The issue of what a reasonable manufacturer would have designed becomes, in essence, a costly, lengthy, negligence case instead of one in which the road to a plaintiff's verdict was supposed to be cleared of those impediments. To prove the manufacturer was negligent is more difficult than merely putting the product on trial.

Breach of Warranty

In a breach of warranty case, the plaintiff need only prove that the product was not fit for the ordinary purposes for which such goods were being used. This is known as the “consumer's expectation test.” Liability for the manufacturer's fault is not an issue as it is in a strict liability trial. It is better to focus the jury on the consumer's expectations of how the product should function than on the experts' dogfight over whether or not it was feasible to build a safer product. Proving the consumer expectations issue is simpler than proving whether a product was “reasonably safe”; the jurors are consumers and, although one cannot argue it, they are more likely to identify with the injured consumer and take into account what they would have expected of the product that is on trial. In a warranty case, so long as it was not being misused, the plaintiff must merely show that the product was being used in a manner foreseeable to the manufacturer. An expert is not even needed in such a case to explain to the jury what a reasonable expectation should be (nor would an expert be permitted to do so even if he were willing.) The trial of a breach of warranty claim also cuts down the amount of time needed to put on the plaintiff's case which is becoming more and more desirable to today's jurors.

Drawbacks

What are the drawbacks of only putting on a breach of warranty case? Some lawyers believe that a breach of warranty trial will not contain enough evidence of a manufacturer's wrongdoing to anger the jury. The trial lawyer still has the option to put on both theories and have the court charge each; however, only in cases where there are grievous injuries can a plaintiff's lawyer afford such an expensive undertaking. Plaintiffs who suffer injuries in the low- to mid-six-figure range, cases that cannot justify retaining the experts required in a strict liability trial, can have their cases heard solely on breach of warranty. A lawyer should consider accepting a case for such treatment as long as he or she discloses ' and the client fully understands ' that there is a cost-element involved in how the case will be prosecuted and tried. Under such conditions, it would be prudent to have the written retainer contain the explanation.

Conclusion

For the reasons stated above, in cases where the injuries are not so serious, plaintiffs' lawyers should consider trying a design defect case only on the theory of breach of implied warranty.

Lawrence Goldhirsch, a member of this newsletter's Board of Editors, works in the Mass Torts Section of Weitz & Luxenberg, New York.

A properly pleaded Complaint in a design defect case will permit the plaintiff to try his case on several different theories: negligence, strict liability and breach of warranty. Nevertheless, certain cases would be most efficiently tried only as a breach of warranty.

Trying a negligence case requires the jury to find that the defendant failed to act reasonably in designing the product. To make out a prima facie case of negligence for a design defect, the plaintiff must show there was a feasible design alternative that would have made the product safer. Product liability law evolved to provide a recovery for persons injured by defective products without the need of proving negligence. This, the courts thought, would lessen the plaintiff's burden at trial and shift the risks and costs from the injured party to the manufacturer. Despite the good intentions, however, over the past 20 or 30 years, courts have said that actions in strict liability for defective design are really negligence cases. Thus, what started out as an attempt to make manufacturers strictly liable for product design defects, ended up requiring the same proof as a claim in a negligence case.

'Reasonably Safe'

In a strict-liability design defect case, the plaintiff must prove the product was not “reasonably safe,” which is the same standard as a negligence case. To prove a product is not “reasonably safe,” the plaintiff must show that a product's utility exceeded its risks. Therefore, the inquiry in such a case is similar to that in a negligence case in that an assessment of the manufacturer's conduct is virtually inevitable. Many states require proof that an alternative, safer design was available, a design that would have left the product functional and reasonably priced. This “risk vs. utility” analysis plays into the hands of the defendant at trial in several ways. A
manufacturer usually has teams of design engineers who design its products, industrial engineers that design and produce the machinery that manufactures the product, and other specialists whose job it is to calculate the costs associated with changing either.

Retaining Experts

In order to make his prima facie case, the plaintiff must retain experts to present testimony, not only about the state of the art reached by science at the time the product was designed and manufactured, but on alternative designs that should have been used and the costs associated with manufacturing and marketing such alternatives. Rarely can a plaintiff locate one person who is qualified to testify on all of those subjects. He will need several experts. Such evidence opens the courthouse door to permit a manufacturer to march in his engineering staff and quality control specialists to explain why its product could not have been designed in the manner the plaintiff claims, why such a design would have put different users at risk or why the design would have been too expensive to manufacture and market.

Dueling Experts

The trial becomes focused on the plaintiff's expert, who rarely has the credentials or expertise equal to those of the defendant's witnesses. Moreover, the plaintiff will be unable to afford the quality of experts available to the defendant except in the most serious injury cases. The issue of what a reasonable manufacturer would have designed becomes, in essence, a costly, lengthy, negligence case instead of one in which the road to a plaintiff's verdict was supposed to be cleared of those impediments. To prove the manufacturer was negligent is more difficult than merely putting the product on trial.

Breach of Warranty

In a breach of warranty case, the plaintiff need only prove that the product was not fit for the ordinary purposes for which such goods were being used. This is known as the “consumer's expectation test.” Liability for the manufacturer's fault is not an issue as it is in a strict liability trial. It is better to focus the jury on the consumer's expectations of how the product should function than on the experts' dogfight over whether or not it was feasible to build a safer product. Proving the consumer expectations issue is simpler than proving whether a product was “reasonably safe”; the jurors are consumers and, although one cannot argue it, they are more likely to identify with the injured consumer and take into account what they would have expected of the product that is on trial. In a warranty case, so long as it was not being misused, the plaintiff must merely show that the product was being used in a manner foreseeable to the manufacturer. An expert is not even needed in such a case to explain to the jury what a reasonable expectation should be (nor would an expert be permitted to do so even if he were willing.) The trial of a breach of warranty claim also cuts down the amount of time needed to put on the plaintiff's case which is becoming more and more desirable to today's jurors.

Drawbacks

What are the drawbacks of only putting on a breach of warranty case? Some lawyers believe that a breach of warranty trial will not contain enough evidence of a manufacturer's wrongdoing to anger the jury. The trial lawyer still has the option to put on both theories and have the court charge each; however, only in cases where there are grievous injuries can a plaintiff's lawyer afford such an expensive undertaking. Plaintiffs who suffer injuries in the low- to mid-six-figure range, cases that cannot justify retaining the experts required in a strict liability trial, can have their cases heard solely on breach of warranty. A lawyer should consider accepting a case for such treatment as long as he or she discloses ' and the client fully understands ' that there is a cost-element involved in how the case will be prosecuted and tried. Under such conditions, it would be prudent to have the written retainer contain the explanation.

Conclusion

For the reasons stated above, in cases where the injuries are not so serious, plaintiffs' lawyers should consider trying a design defect case only on the theory of breach of implied warranty.

Lawrence Goldhirsch, a member of this newsletter's Board of Editors, works in the Mass Torts Section of Weitz & Luxenberg, New York.