14.33 - W. Countervailing Dangers And Concerns

• Jurisdiction: New York

W. Countervailing Dangers and Concerns

1. Demaree v. Toyota Motor Corp.²⁷⁰⁴ Testimony regarding proposed alternative deployment threshold for air bags rejected where expert failed to account for possible danger caused by the proposed alternative design.

2. Giles v. Miners.²⁷⁰⁵ Expert testimony rejected where expert failed to consider dangers posed by proposed alternative design:

There was no indication that [plaintiff’s expert] had analyzed how the proposed safety guard would interact with the freezer’s proper functioning. Further, it appears that [expert’s] mesh insertion would violate government and industry design standards, which require a sanitary, easily cleanable surface, rather than one that allows the growth of mold and bacteria.

3. Jaurequi v. Carter Manufacturing Co.²⁷⁰⁶ Testimony regarding proposed safety feature rejected where expert did not test the alternative to determine its utility as a safety device or its compatibility with the corn head’s proper function.

4. Elliot v. Amadas Indus.²⁷⁰⁷:

Sparks testified that he had not designed, built, tested, repaired, or serviced a peanut combine or any other agricultural combine—with or without his proposed alternative safety features. He further testified that he had not written or tested any warnings for a combine, prepared any design drawings for a combine that incorporate his proposed safety features, sought out the advice of anyone with combine design experience, or conducted feasibility studies or any other research to determine the impact his alternative design would have on the utility of the combine. Additionally, none of his alternative design concepts have been published or peer-reviewed. The Court does not suggest that any one of these issues is dispositive as to the reliability of Sparks’ testimony. However, in the aggregate, they clearly indicate that there is no basis for his assurance that his proposed alternative designs and warnings would have, to a reasonable probability, prevented the injury to Elliot without impairing the utility, usefulness, practicality or desirability of the combine.

5. Hilaire v. DeWalt Indus. Tool Co.²⁷⁰⁸:

In a products liability case, the “touchstone” of an expert’s report should be a comparison of the utility and cost of the product’s design and alternative designs. Mr. Barbe’s conclusions do not contain any such comparisons or testing. Thus, his report lacks sufficient detail for the Court to evaluate the reliability of his opinions.

6. In re NJOY...