Analyzing Inconsistent Verdicts in Products Liability Cases: How the Law Promotes Them, Why Juries Render Them, and Why Some Courts Permit Them
Blydenburgh, Donald P., Defense Counsel Journal
PRODUCTS LIABILITY, which has its origins in both tort and contract law, typically covers any liability of a manufacturer or a seller of a product where that product's defect results in personal injury or property damage. The plaintiff can make such a claim under a number of different theories of liability. At one time, the most common ground for recovery was negligence, requiring the plaintiff to affirmatively show that the defendant-distributor deviated from accepted standards of conduct in its actions or failure to act. In 1944, Judge Traynor explained the evidentiary difficulty in proving negligence, when he opined, "[a]n injured person, however, is not ordinarily in a position to refute such evidence or identify the cause of the defect, for he can hardly be familiar with the manufacturing process as the manufacturer himself." (1) To avoid this substantial burden, plaintiffs relied on an implied warranty of merchantability, which, according to the Uniform Sales Act and later ruder the Uniform Commercial Code, guaranteed the consumer a product that was "reasonably fit for the ordinary purposes for which such goods are used." (2) This cause of action, requiring defect but no proof of fault, had many of the virtues of strict liability. However, a cause of action based on implied warranty posed its own substantial hurdles. Because the action was contractual, it required privity (3) and, based in sales law, it required proper notice of the breach. Additionally, its statute of limitations ran from the sale rather than the injury. Public policy considerations laid the groundwork for plaintiffs to recover on a third ground: strict liability in tort. One who sells any product "in a defective condition unreasonably dangerous to the user or consumer or to his property" is strictly liable for harm caused to the ultimate consumer or user. (4)
Although these theories are not mutually exclusive, many plaintiffs allege alternative theories of liability, a contingency plan of sorts should they fail to provide sufficient evidence on an element of one theory. Although courts allow plaintiffs to allege multiple theories, a plaintiff must, irrespective of the theory, prove that the product is defective. (5) If a jury returns one finding for the plaintiff while returning another for the defendant, with both theories requiring a showing of defect, the verdict could be considered irreconcilable and fatally inconsistent.
Inconsistent verdicts are a double-edged sword in that, if a jury, because of confusion in the law, returns an inconsistent verdict, the decision of the historical arbiter of fact is rejected and the case must be retried. (6) On the other hand, harmonizing an inconsistent verdict under an "any possibility of reconciliation under any possible application of the evidence and instructions" standard (7) muddles legal precedent and affects future product litigation.
Some scholars have advocated for the use of special interrogatories or special verdicts to deal with the potential hazard posed by alleging alternative theories of liability. Although helpful, this "remedy" would only temporarily address the problem in the short-run and may not be sufficient to remedy the larger, long-term problem. If courts continue to resolve inconsistent verdicts in products liability cases by theorizing a possible reasoning they believe the jury may have had in returning such a verdict, a workable definition of "defect" will prove elusive. The larger problem must be addressed: section 402A of the Restatement (Second) and its amorphous "defective condition unreasonably dangerous," put a "substantive gloss" on the term "defect." (8) Courts have since incorporated their own complicated and, at times, misguided interpretations of the term, sending jurors to deliberate with nearly incomprehensible instructions, leaving them to formulate random, unpredictable, and sometimes irreconcilable judgments.
Charging juries with alternative theories of recovery in products liability cases invites the potential for inconsistent verdicts because each theory requires a showing of defect, and courts have not provided juries with a clear, consistent definition of defect. …