Stabilization of product liability law by statute: Mississippi as a case study.

• Author: Rippee, Stephanie M.

SUPPOSE A CONSUMER buys a product--a car. While driving, he crashes into a tree and spends weeks in the hospital recovering from his injuries. He misses weeks of work without pay. He soon hears news reports and sees lawyers' advertisements claiming the particular make and model car he owns might have a defect of some sort. The car manufacturer, upon investigation of his accident, believes that the car isn't defective and that negligent driving caused the crash. The consumer decides to sue the car manufacturer and the local dealership to recover his damages, including his medical bills, lost wages, pain and suffering and mental anguish. What claims can the consumer pursue under state law for harm caused by the allegedly defective car?

In product liability eases, plaintiffs routinely file expansive complaints that include common law negligence, strict liability, warranty, fraud and misrepresentation claims, as well as claims permitted by various state statutes such as consumer fraud statutes or the state's version of the Uniform Commercial Code ("UCC"). Sometimes, these causes of action overlap or conflict in terms of evidence permitted and proof standards required. Sometimes, the legal claims asserted don't really even seem to fit the situation involved or the harm supposedly incurred.

Defendants want certainty as to what claims legitimately can be pursued. Uncertainty causes parties to needlessly waste time and money fighting about the proof required or permitted, the defenses available, and the appropriate jury instructions. And ultimately, uncertainty about liability exposure can discourage businesses, such as product manufacturers and sellers, from locating or remaining in the state.

To provide more certainty about potential exposure under product liability law, some states have enacted product liability statutes that clearly set forth the claims permitted and proof required when alleging damages caused by a defective product. Quite often, the proof requirements mandated by state product liability statutes are more stringent than or conflict with those required by common law of other statutory schemes. Quite often, the defenses are different or more complete.

But do such statutes actually achieve the desired stability? The answer to that question seems to depend on whether the courts enforce the statute as the exclusive means of recovery for harm caused by a product. If instead plaintiffs are allowed to plead around the statute, the stabilizing effect likely will not materialize.

Mississippi presents an interesting case study of this issue. In 1993, the Mississippi Legislature enacted the Mississippi Product Liability Act (MPLA or the Act) (1) to stabilize product liability law in Mississippi. But after having been in effect for nearly twenty years, the stabilizing effect has never really materialized. Although the Mississippi Legislature intended the Act to be the standard for product liability actions in the state, many courts have interpreted the Act as simply one option for recovery available to plaintiffs. This failure to effectuate the Act's legislative intent has diminished its effectiveness and has even added to the confusion about what a plaintiff can claim and must prove, and what defenses are available in a product liability lawsuit.

1. The MPLA

   The MPLA, in its current form, allows a plaintiff to sue a product manufacturer or seller for damages caused by a product if the product has a defect that renders the product unreasonably dangerous and that dangerous condition proximately causes personal injury to the claimant. (2) The Act excepts from its seemingly broad, comprehensive scope only commercial damage to the product itself. (3) The Act provides only four specific types of defects upon which liability can be premised: 1) failure to meet manufacturing specifications; 2) inadequate warnings; 3) defective design; and 4) breach of an express warranty upon which the user justifiably relied. (4) Later subsections of the MPLA further define these four permitted claims, which are subject to varying standards. Specifically, while the standards for a manufacturing defect and a breach of express warranty claim seem to still be strict liability where fault is irrelevant, the standards set forth for inadequate warning claims (5) and design defect claims (6) have both been characterized as negligence, rather than strict liability, standards. (7) The statutory standards are decidedly different from the standards previously set forth in the common law. For example, preMPLA common law for design defect claims considered "the availability of a substitute product which would meet the same need and not be as unsafe" as just one of several factors for a risk-utility analysis of defectiveness. (8) The MPLA's requirement that a feasible design alternative must be proven was a new requirement and arguably a heavier burden for plaintiffs.

   The remaining subsections of the MPLA set out various defenses available to a manufacturer or seller, some of which did not exist in the prior common law. For example, the innocent seller defense in subsection (h) immunizes a seller as to liability for any of the named defects unless he exercised control over certain aspects of the development of the product; altered the product in a way that substantially contributed to the harm; or had actual or constructive knowledge of the defect at the time he sold the product. (9) Sellers were not immunized in this manner under common law. As another example, the assumption of the risk defense in subsection (d) provides that if a plaintiff knew about and appreciated the alleged danger and still voluntarily exposed himself to it, then the manufacturer "shall not be liable." (10) Under the prior common law scheme, the plaintiff would merely have been allocated a percentage of fault pursuant to Mississippi's statute on joint and several liability. (11)

   1. Legislative Intent: An Exclusive Remedy for Product-Based Claims

      Interpreting the Act is the duty of the Mississippi courts, and the "polestar" consideration is legislative intent. (12) A statute should be read in the manner most consistent with the legislative language and the policies and principles justifying that language. (13) In Mississippi, however, no formal written record of legislative history is maintained. But the title of the Act can evidence legislative intent, and the words the legislature chose to put in the text of the MPLA itself are considered the best evidence of its intent. (14)

      The title and language of the MPLA, as well commentary from the legislators at the time of enactment, seem to clearly indicate that the Mississippi Legislature intended the MPLA to be the vehicle a plaintiff must choose in pursuing a recovery against a product manufacturer or seller for injury caused by a product. Although we now refer to the Act as "the MPLA," the title of the Act as passed was:

      AN ACT ... TO PROVIDE THAT THE MANUFACTURER OR SELLER OF A PRODUCT SHALL NOT BE LIABLE ... IF THE CLAIMANT DOES NOT PROVE CERTAIN FACTS ABOUT THE PRODUCT. (15) The opening statements of the Act provide:

      [I]n any action for damages caused by a product except for commercial damage to the product itself: (

      1. The manufacturer of seller of the product shall not be liable if the claimant does not prove by the preponderance of the evidence that at the time the product left control of the manufacturer or seller: ... (16) Any action. Shall not be liable. These are clear, unambiguous words. Said differently, it the requirements of the Act are not met, no liability can be imposed upon a manufacturer or seller for damage caused by a product.

      Moreover, Judge Mike Mills, (17) the then Chairman of the House Judiciary Committee, specifically explained at the time the Act was passed that it was intended to be the exclusive remedy: "[w]hat [the MPLA] does is say if there is a product out here that injures someone, here are four ways you can take that action into court ... If it doesn't fit one of those four, you don't have a lawsuit." (18) Judge Mills reasoned that the MPLA was enacted to provide stability for businesses. (19) He explained that "[b]usinesses like stability. They want to know what the rules are, and they can fashion their business accordingly. [The MPLA] gives stability to the law; they don't have to worry about the Supreme Court jumping off into another theory of liability. It locks it in." (20)

      Despite this seemingly clear language, however, the Act has not been consistently interpreted by Mississippi courts as the exclusive remedy, in keeping with the legislative intent. Interpreting the Act as simply one "option" for recovery has been a great obstacle to its effectiveness as a stabilizer of the law. As described above, the MPLA contains additional, sometimes tougher, proof requirements for plaintiffs, and provides more complete defenses not previously available under common law. If the MPLA is "optional," why would an informed plaintiff ever choose to sue under the MPLA? If the MPLA does not abrogate other previously permitted theories of recovery, "then it is likely that few plaintiffs will choose to file lawsuits under the MPLA rather than filing, for example, a common-law implied warranty action." (21) Professor Robert A. Weems explains the absurd results an "optional" MPLA would cause:

      [a]ssuming that the Mississippi Supreme Court agrees that the common-law negligence action survives the enactment of the MPLA, plaintiffs could arguably use the risk-utility standard to establish such negligence. This would seemingly result in the entire MPLA being neatly sidestepped, and Mississippi's previously existing products liability common-law jurisprudence continuing essentially as before. (22) Not surprisingly in light of its tougher proof requirements, plaintiffs have, since the Act's inception, tried to circumvent it by pleading around it, including in their complaints product based claims...