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A product may be found defective in design under either of two alternative theories. First, a product may be found defective in design if the plaintiff establishes that the product failed to perform as safely as an ordinary consumer would expect when used in an intended or reasonably foreseeable manner. Under this first, so-called "consumer expectation test," a plaintiff is required to produce evidence of the objective conditions of the product as to which the jury is to employ its own sense of whether the product meets ordinary expectations as to its safety under the circumstances presented by the evidence.
A jury found Owens-Illinois, Inc., a manufacturer of asbestos-containing thermal insulation, 100 percent responsible for personal injuries suffered as a result of plaintiff's exposure to the insulation while working on a ship. Plaintiff pursued a defective design theory under the "consumer expectation test." The court instructed the jury on that theory only, and the jury found that there was a design defect in the insulation material. The manufacturer appealed, contending that there was no evidence that the product was defective, and that there was no substantial evidence to support the jury's decision to allocate 100 percent of the fault to the manufacturer.
The Court of Appeal affirmed. It held that the trial court did not err by instructing the jury only on the "consumer expectation test," and that there was substantial evidence to support the jury finding of a design defect in the material. According to the Court, the "consumer expectation test" was the appropriate test in the present case. There were no esoteric circumstances surrounding the "accident" in the instant case. The product was a common type of asbestos-containing block insulation, and the design failure was in the product's emission of highly toxic, respirable fibers in the normal course of its intended use and maintenance. The Court held that the plaintiff presented ample evidence from which the jury could have inferred that the ordinary users of the product in the late 1950's and early 1960's did not expect to develop a fatal disease from simply breathing dust from the product. The Court also held that there was sufficient evidence to support the jury's finding that the defect in the material was the sole legal cause of plaintiff's injuries. The testimony of plaintiff's medical experts was clearly sufficient to support a jury finding that defendant's product was more likely than not the source of asbestos fibers that caused plaintiff's mesothelioma. Also, the jury could have concluded from the evidence that defendant's product was the sole cause of the injuries. The evidence showed insulators' preference for using defendant's product, and thus the jury could have concluded that it was more likely than not that it was defendant's product on the ship where plaintiff was exposed.