Photo of Stephen McConnell

Maybe you’ve noticed that many of our recent posts have reported good decisions out of Mississippi. Here, here, and here, for example.  It’s as if there has been an outburst of judicial common sense in that fair state.   But it has not really been such a sudden thing.  Looking back over last year, sound reasoning and clear decision-making seem to be commonplace in Mississippi opinions.  You just had to look for these things, and you didn’t have to look all that hard.

Consider Mealer v. 3M Co., 2015 WL 9692735 (Miss. March 28, 2015).  That opinion came out ten months ago, and is now available on Westlaw.  It isn’t a drug or device case, but its holding on the safer alternative requirement is important for any product liability design defect claim.

The product at issue was a one-use, disposable respirator mask.  The plaintiff wore one while wielding a jackhammer in a demolition project.  The claim was that the mask did not adequately filter out silica particulates, and that the plaintiff ultimately contracted a fatal lung disease as a result.  The plaintiff’s experts opined that there was no design change that could make a disposable respirator mask adequate.  Instead, the safer, feasible alternatives included such things as elastomeric respirators with cartridge filters and exhalation and inhalation filters with rubber seals.  The court held that those weren’t safer alternatives but were, instead, different products altogether.  The disposable mask used by the plaintiff was a simple fiber piece that costs about a dollar.  By contrast, the elastomeric respirator costs about $25-30.  As the court reasoned, “[t]hey are completely different and their utility is completely different, the variation in longevity of the two products is obvious.”

The court employed an interesting analogy with lawn mowers.  Some of us grew up pushing mechanical lawn mowers.  In fact, we still own one and use it in tight locations or when we are feeling especially masochistic.  Nevertheless, nowadays we join most of modern America in gassing up a power lawn mower for jobs of any real size. Both products cut grass, but they are definitely different products. It would be crazy to let a jury find the push mower defective because, say, some geezer lawyer stubbornly used it on a hot day and ended up in an emergency room with a myocardial infarction. It would be just as silly for a jury to find a power mower defective because the motorized blades cut off someone’s foot in a way that could never happen with an old-fashioned device.  There has to be room for different products, even if they perform essentially the same function. There has to be room for consumer choice. Thus, if a product liability plaintiff is pursuing a design defect claim in a jurisdiction requiring a showing of a safer, feasible alternative, that alternative must be the same product, not something fundamentally different.

Mississippi is one of those jurisdictions requiring a showing of a safer alternative.  Its product liability statute (section 11-1-63(f)) provides that in a claim for defective design, the manufacturer shall not be liable unless the product failed to function as expected and there existed a feasible design alternative that would have, to a reasonable probability, prevented the harm.  Such a feasible alternative would be capable of preventing the harm without impairing the utility, usefulness, practicality or desirability of the product for consumers.  Thus, to return to our lawn mower example, one could make a very safe lawn mower by removing the blade, but it would not be very useful.  Anyway, yay to Mississippi for enacting the requirement of a safer alternative. (And a pox on those jurisdictions that have no such requirement.)  And now, with the Mealer case, yay to Mississippi for how its courts interpret that requirement.  As far as we can tell, Mealer is the first Mississippi case explicitly holding that the safer alternative cannot be an entirely different product.  In getting to that result, the Mealer court quoted good law and language from several cases, including Massa v. Genentech, Inc., 2012 WL 956192 (S.D. Texas 2012), Brockert v. Wyeth, Pharmaceuticals, Inc., 287 S.W.3d 760 (Texas Ct. App. 2009), and Theriot v. Danek Med., Inc., 168 F.3d 253 (5th Cir. 1999). As the named parties in those cases reveal, the strict requirement of safer alternative has been applied to drugs and medical devices.

The issue is significant because plaintiffs often do not offer any truly feasible alternative. Many plaintiffs are content simply to say that the product is rotten and should not be used at all.  So the alternative is nothing. Or maybe the alternative is a procedure that uses no product at all. But of course that is not a safer alternative product, so the requirement is not satisfied and the design defect claim should be dismissed.  Or maybe, as in Mealer, the alternative is a product that is a truly different product, not the same product with a safer design.  (Something similar happens when a plaintiff alleges that a certain drug is defective, and suggests that a different drug should have been prescribed.)  As the Mealer court stated, it is “not rational … to impose liability in such a way as to eliminate whole categories of useful products from the market.”

The strict enforcement of the safer alternative requirement is a potential game-changer.  It certainly was a game changer in Mealer, as it led the court to grant summary judgment in favor of the defendant because the plaintiff had failed to prove the existence of a feasible design alternative.  That result did not sit well with the plaintiff, who filed a motion for reconsideration.  One of the plaintiff’s arguments for reconsideration was that the court failed to acknowledge that the feasible alternative design issue was a question of fact for the jury to decide.  The court denied the motion to reconsider because the court was in a position to determine that the plaintiff had simply offered no evidence of a safer alternative product. Mealer v. 3M Co., 2015 WL 9692736 (Miss. Nov. 10, 2015). Some courts might gratefully seize the opportunity to abdicate its function and flip the issue to the jury. Not the Mealer court.  It seems that cowardice and lassitude do not reside in Mississippi courts.