By William A. Ruskin
In the majority of jurisdictions, to establish a claim for design defect in a product liability action, the plaintiff must present some proof of a "feasible alternative design" or "reasonable alternative design."
In an article published in the IADC Product Liability Committee Newsletter (February 2012), "No Other Alternative: Challenging Plaintiff's Proof of Reasonable Alternative Design", Elbert S. Dorn, a partner at Nexen Pruet, LLC, in South Carolina, provides valuable tips to the defense practitioner concerning how to agressively press legal and factual points to test plaintiff's proof of reasonable alternative design.
According to Dorn, legal arguments on reasonable alternative design should be included in Daubert or other motions to exclude or limit the plaintiff's expert testimony, motions for summary judgment, motions in limine to challenge evidence of proposed design alternatives, and in oral and written motions for judgment as a matter of law at the close of plaintiff's case, at the completion of the defense case, and after any adverse verdict. Additionally, the defense position on reasonable alternative design should be articulated clearly in proposed requests to charge (or jury instructions).
In challenging plaintiff's proof or evidence of a reasonable alternative design, the following factors and issues should be considered:
Fundamentally, the defense against plaintiff's argument that there existed a reasonable alternative designr resonates with a basic human emotion - "don't criticize the way I do things unless you can do it better" or "do not criticize my play-calling and execution, if you have never played the game." If this notion can be conveyed to judge and jury, all the better in establishing the defense to plaintiff's contentions.
For more cutting edge commentary on developing issues, visit Toxic Tort Litigation Blog by William A. Ruskin of Epstein Becker & Green.
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