Products Liability in NY, Strategy & Practice Ch. 6 Defending the Design Defect Case: Strategic Considerations

• Jurisdiction: New York

CHAPTER SIX DEFENDING THE DESIGN DEFECT CASE: STRATEGIC CONSIDERATIONS Saul Wilensky, Esq.
Carl J. Schaerf, Esq.
Matthew J. Kelly Jr., Esq.*

I. INTRODUCTION

Manufacturers, distributors and retailers are faced with a constant barrage of lawsuits from people injured while using, or misusing, their products. A substantial majority of these suits are based on claims of design defect, alleging that the product’s design was unreasonably dangerous. Armed with hindsight and juror sympathy, plaintiffs, their counsel and experts will claim that the manufacturer should have designed the product differently in order to prevent the particular injury that occurred

Defending a design defect case presents a substantial challenge to a manufacturer and its defense counsel. Proper defense strategy requires a familiarity with substantive and procedural law, as well as the complex engineering and medical issues involved in a given case. While many of these issues are addressed in detail in other chapters, this chapter focuses on the strategic issues critical to preparing and presenting a persuasive and cost-effective defense to a design defect case. These issues include selecting defense theories, simplifying complex products for the jury, properly utilizing the client at trial, navigating the pitfalls of multi-party suits, excluding adverse expert testimony and dealing with the media. Familiarity with these issues will substantially assist the manufacturer and its counsel in defending a design defect case

II. SELECTING A DEFENSE THEORY1102

The first step in putting together an effective defense to a design defect case is to identify the primary and secondary defense theories that counsel and the manufacturer will advance at trial. Once the correct defense theories are identified, they will provide a consistent approach for the defense team for discovery, preparation and trial. Decisions as to whether or when to call a certain witness, ask certain questions or introduce documents or physical evidence will all be based on the defense theories chosen. The defense theories should be introduced during voir dire and described in detail during the opening statement. Counsel and the manufacturer must also be alert to developments that may require a change in defense theories, whether during discovery or in the course of the trial

The chosen defense theories must be simple and firmly supported by the available evidence; otherwise, defense counsel is left at summation with nothing but broken promises to the jury. Consultation with the client and experts and a complete familiarity with the discovery and investigation is therefore critical. Common sense and a general perceptiveness about human behavior must also guide the manufacturer and its counsel. For example, a defense argument based on the expectation that an unskilled worker should follow a complex set of procedures to avoid injury will not be well received

Accident reconstruction frequently leads to viable defense theories. For example, an alternate causation theory of the accident, if unrelated to the product, may be a complete defense. The characteristics of the product itself, or the type of injury sustained, may make the plaintiff’s version unlikely or impossible. ¹¹⁰³ If the manufacturer can show that a defect in the product is only one of several possible causes, then the plaintiff will not have met his or her burden of proof as a matter of law. ¹¹⁰⁴ Some of the most common defense theories are discussed below.

A. Identification of Involved Product

The first question a manufacturer should always address in a products liability suit is whether its product was involved. Generally, the plaintiff bears the burden of identifying the manufacturer, distributor and/or the seller of the product that allegedly caused the injury. ¹¹⁰⁵ Narrowing the field to two or more possible manufacturers does not enable the plaintiff to make a prima facie case against either of them. Absent proof connecting the defendant with the manufacture or sale of the product, the plaintiff cannot recover, and summary judgment may be available after an initial inspection of the product. ¹¹⁰⁶ If the correct manufacturer can be identified, the defendant’s task is easier.

A plaintiff who cannot identify the correct manufacturer may still prevail in limited instances, based on “enterprise liability.” To invoke this rule, the plaintiff must demonstrate the following:

1. the industry comprises a small number of manufacturers;

2. defendants engaged in similar practices, resulting in similar product defects;

3. the manufacturer of the product that injured plaintiff is unknown; and

4. it is more probable than not that the product involved was made by one of the defendant manufacturers.

Two types of enterprise liability have been recognized in New York. First is the “concerted action” theory, which may be used against manufacturers who act in unison to create a defective design. To avoid liability under a concerted action theory, a defendant may prove that it did not act in furtherance of a joint agreement between manufacturers but, instead, conducted its own independent development and testing. ¹¹⁰⁷ Concerted action liability should not apply if the plaintiff’s inability to identify a particular manufacturer is the result of his or her own failure to preserve component parts or other evidence that would have facilitated the identification of the proper party. ¹¹⁰⁸ The second theory, most notably applied in DES (diethylstilbestrol) cases, is “market share liability.” This theory imposes responsibility on manufacturers who acted in parallel fashion to produce an identical product, which was used interchangeably. The use of this doctrine in the DES cases was also based on the claim that the delayed onset of symptoms prevented the plaintiffs from identifying the particular dosage or manufacturer responsible for their injuries. ¹¹⁰⁹

Once the elements of enterprise liability are met, the burden shifts to the defendant to show either that the defendant’s product did not cause the harm or that the injury was caused by a specific competitor’s product. Market share liability is several, but not joint, and is based upon proportionate national market share. The plaintiff’s failure to bring suit against all the manufacturers for a given case does not increase the share of liability for any individual manufacturer. ¹¹¹⁰

B. The Product Is Reasonably Safe

The cornerstone of a design defect case is whether the product was unreasonably dangerous as manufactured and sold ¹¹¹¹ A defectively designed product “is one which at the time it leaves the seller’s hands, is in a condition not reasonably contemplated by the ultimate consumer and is unreasonably dangerous for its intended use; that is, one whose utility does not outweigh the danger inherent in its introduction into the stream of commerce.” ¹¹¹² The factors a jury may consider in this analysis are

• (1) the utility of the product to the public as a whole and to the individual user; (2) the nature of the product—that is, the likelihood that it will cause injury; (3) the availability of a safer design; (4) the potential for designing and manufacturing the product so that it is safer but remains functional and reasonably priced; (5) the ability of the plaintiff to have avoided injury by careful use of the product; (6) the degree of awareness of the potential danger of the product which reasonably can be attributed to the plaintiff; and (7) the manufacturer’s ability to spread any cost related to improving the safety of the design.¹¹¹³

While the legal theory raised against the manufacturer is invariably that of strict products liability, the appellate courts in New York have held that the plaintiff must prove the design was unreasonably dangerous. ¹¹¹⁴ In effect, reliance on the term “reasonable” injects principles of negligence and enables the manufacturer to defend its design by introducing proof that its design choice was reasonable, even if not perfect or accident-proof. ¹¹¹⁵ Various defenses supporting the reasonably safe standard are discussed below.

A potential exception to this defense has been raised in cases involving guns. New York adheres to the position that there is no liability under a design defect theory for guns, unless the plaintiff can show a defect aside from the intended and designed function of a gun, which is to fire bullets. ¹¹¹⁶ Notwithstanding the absence of a design defect theory, liability for sale of guns may be possible under a negligent marketing theory. In Hamilton v. Beretta U.S.A. Corp., ¹¹¹⁷ the Second Circuit certified two questions to the N.Y. Court of Appeals:

• 1. “[w]hether the defendants owed plaintiffs a duty to exercise reasonable care in the marketing and distribution of the handguns they manufacture”;¹¹¹⁸ and
• 2. “[w]hether liability may be apportioned on a market share basis, and if so, how?”¹¹¹⁹

The Court of Appeals accepted both questions ¹¹²⁰ and held that the manufacturers did not owe the plaintiffs a duty of care, because “[s]uch broad liability, potentially encompassing all gunshot crime victims, should not be imposed without a more tangible showing that the defendants were a direct link in the causal chain that resulted in the plaintiffs’ injuries, and that the defendants were realistically in a position to prevent the wrongs.” ¹¹²¹ Further, there was no finding that the manufacturers could have taken steps to prevent the injury, nor that their marketing or distribution practices enhanced the risk of injury. ¹¹²²

The second question was also answered in the negative, because “[u]nlike DES, guns are not identical, fungible products.” ¹¹²³ The court distinguished Hymowitz v. Eli Lilly & Co., ¹¹²⁴ because unlike the drug companies’ identical practices, each gun transaction presented a different level of risk, and no uniform

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