Academic journal article Defense Counsel Journal

The Uncertainty Surrounding "Design" in Design Defect Cases

Academic journal article Defense Counsel Journal

The Uncertainty Surrounding "Design" in Design Defect Cases

Article excerpt

ALL PRODUCT LIABILITY attorneys know that in order to establish a prima facie design defect claim, the plaintiff must present an alternative design that is practical, feasible, and safer than the defendant's design. There is a large body of law that defines "practical," "feasible," and "safer" and explains the meaning of those terms. One word that is largely ignored, however, is arguably the most important: "design."

Statutes do not define "design," and there is a dearth of case law on what a "design" is in this context. Although the RESTATEMENT (THIRD) OF TORTS: PRODUCTS LIABILITY ("Restatement") explains what a defective design is, (1) and its comments refer to various factors that are important in determining whether the omission of a reasonable alternative design renders a product unsafe, (2) the Restatement does not define "design." The absence of a definition of "design" leads to many unanswered questions: Must a plaintiff offer blueprints of his proposal in order for it to be a "design"? Must the proposal be capable of being built and tested? Must the proposal meet certain engineering requirements? Must a plaintiff offer design specifications?

Many of these questions do not have clear answers at the state level, despite the critical importance of this issue to product liability litigation. As a result, some courts have adopted a "we know a design when we see it" approach. Because the issue of how to define "design" often arises in the context of a challenge to the admissibility of an expert's opinion, federal courts employing a rigorous Daubert analysis have effectively provided some meaning to "design" and have provided litigants with some guidance as to the nature and quantum of evidence needed to prove a "design." This article reviews the approach state courts take in considering what constitutes a "design," using New Jersey product liability law as a representative example, contrasts the state law approach with the guidance developed in the federal courts, and provides for consideration an alternative standard for "design."

I. New Jersey Law

New Jersey's product liability law is but one example of a state in which issues surrounding the definition of "design" remain unresolved. (3) New Jersey's Product Liability Act, (4) defines many terms but it does not define "design," (5) mandating only that defendants or sellers of a product are liable if the plaintiff proves that a product "was designed in a defective manner." (6) The New Jersey Supreme Court and lower courts have developed a large body of case law regarding nearly all aspects of product liability law, but they have not adopted a concrete definition of "design." Instead, New Jersey courts have taken an ad hoc approach to the issue.

For example, in Lopez v. Borough of Sayreville, (7) a product liability action heard by the New Jersey Appellate Division, the plaintiff suffered injuries after an all-terrain vehicle that he was riding up a hill overturned backwards and landed on him. (8) The plaintiff asserted design defect and warning defect claims against the manufacturer of the vehicle. (9) The jury returned a no-cause verdict, and the trial court denied the plaintiff's motion for a new trial. (10) The Appellate Division affirmed, rejecting the numerous arguments that the plaintiff presented on appeal. (11)

On appeal, the Lopez court considered the plaintiff's challenge to a supplementary charge that the trial judge provided to the jury regarding the design defect claim. The trial court's initial jury charge was "substantially in accordance" with the Standard Civil Jury Instructions (12) and outlined the four alternative designs that the plaintiff had identified during the course of the trial. (13) During its deliberations, the jury requested a recharge on the design defect claim. (14) Because the trial court concluded that its original charge was not sufficiently tailored to the facts of the case, the trial court, after identifying the plaintiff's proposed alternatives, provided the following supplemental instruction:

   [T]he designs proposed by the plaintiff's expert, Mr. … 
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