Our work on “hard goods” (automobile, appliance, fire) product liability cases is greatly outnumbered by our drug and device cases (and probably also outnumbered these days by website privacy cases). But the history of product liability has often been driven by such hard goods cases. Think of Cardozo’s famous opinion in MacPherson v. Buick.
Today’s case, Ford Motor Co. v. Tyler, 2023 W. Va. App. LEXIS 337, 2023 WL 8588042(W.Va. Ct. App. Dec. 8, 2023), is obviously not a prescription medical product case, but rather an automotive case. Still, the question it decides affects prescription medical product (particularly device) cases. It also extensively discusses (and disagrees with) a pro-plaintiff ruling in the dreaded Pelvic Mesh MDL. The issue is whether West Virginia law requires proof of an alternative design in negligent design defect cases.
Tyler involved a fatal car accident. One of the plaintiff’s theories was that the design of the brake fluid reservoir was defective because it was inadequately protected, permitting the release of brake fluid after a collision, thereby igniting a fire. (There was another defect theory, which was ultimately rejected by the jury.) The plaintiff filed two claims on this theory: strict liability design defect and negligent design defect. After the close of evidence, at the charge conference, the trial court said it would instruct the jury that the strict liability design defect claim required the plaintiff to show the existence of a safer alternative design. So far so good. But the trial court refused the defendant’s request for a similar instruction for the negligent design defect claim. The trial court acknowledged that most courts around the country would include that requirement, but the trial court was swayed by a decision in the West Virginia Pelvic Mesh MDL that a safer alternative design was not required in negligence claims. (The Pelvic Mesh MDL really is the gift that keeps giving … nightmares to defense lawyers.) The plaintiff in Tyler then dropped the strict liability design defect claim. That meant that the jury heard not a word regarding safer alternative design. The plaintiff’s ploy worked, because the jury returned a significant verdict in the plaintiff’s favor on the negligent design claim.
The defendant then filed a motion for judgment as a matter of law or, in the alternative, for a new trial. The main argument in the motion was that the trial court should have instructed the jury that the plaintiff could not prevail on negligent design unless there was a safer alternative design. The trial court denied the motion, and the issue went up to the West Virginia intermediate appellate court.
The Tyler appellate court analyzed the issue by taking an extensive tour of both West Virginia product liability law and the law in general as to whether claims for negligent design require a safer alternative. We wrote an extensive blogpost on that latter point. To be sure, that post was largely prompted by the way the Pelvic Mesh MDL made a hash of the issue. Not only did the Pelvic Mesh MDL judge drop the safer alternative requirement from negligent design, but in the Shears case the Fourth Circuit subsequently sought guidance from the West Virginia Supreme Court as to whether a safer alternative was required in strict liability claims. As we discussed in a prior post, the issue is currently pending before the West Virginia high court. One trembles.
The Tyler appellate court treats us to a thorough and persuasive discussion of West Virginia law, the Third Restatement of Torts (which requires a safer alternative for both strict liability and negligent design defect) and other state law. In the end, the (relatively new) West Virginia intermediate appellate court agreed with the “vast majority of states” and required an alternative design in negligent design cases. That meant that the Tyler appellate court explicitly disagreed with the Pelvic Mesh MDL decision. But it did so in as polite and gentle a way as possible: “While we conclude that Judge Goodwin incorrectly interpreted West Virginia law, he himself even acknowledged that an alternative feasible design will always be relevant in determining if a product was designed negligently.” That’s nice, we suppose.
What was the plaintiff’s rationale for omitting the safer alternative requirement from the negligent design defect claim? It was the same rationale employed by the Pelvic Mesh court in getting the issue wrong. Here is how the reasoning goes: strict liability is about whether the product is unreasonably dangerous, whereas negligence is about the defendant’s conduct. On a superficial level, that sounds like a meaningful distinction. But as the Third Restatement, cases from that “vast majority” of other states, and, for that matter, the West Virginia Supreme Court in the Stone case demonstrated, one cannot cogently assess a defendant’s reasonableness in designing a product without assessing the availability of safer alternatives. The Tyler court could not “conceive of a factual scenario where an alternative feasible design would not be a necessary element in finding that the defendant was negligent in a design defect claim.” (We share that position. Why should a defendant be found liable for a design when even the enterprising plaintiff lawyer or expert cannot suggest an improvement?)
Thus, the intermediate appellate court in Tyler allied itself with the Third Restatement, “vast majority” of jurisdictions, and logic in requiring a safer alternative for negligent design claims. It was, therefore, error by the trial court in Tyler not to instruct the jury on the nature of this requirement, and the defendant was entitled to a new trial. We can only hope that this decision is persuasive to the West Virginia high court in the medical device case before it.