We don’t write a lot on the various pelvic mesh MDLs in West Virginia because we are so heavily involved in two of them. But the MDL court entered an order last week on design defect and alternative design that we consider to be a real gem. The case is Mullins v. Ethicon, Inc., No. 2:12-cv-02952, 2016 WL 7197441 (S.D. W. Va. Dec. 9, 2016), and we recommend it to all of you. We say that not only because the district court held that West Virginia law requires that each plaintiff must prove a feasible alternative design—which is the correct result—but also because the order is particularly well reasoned.
Not every state requires proof of a feasible alternative design, but it is nevertheless a basic product liability concept. It is a particularly good fit when dealing with products that always bear risks—such as implanted medical devices. The Restatement (Third) of Torts, Product Liability § 2 is as good a place as any to start, as it bakes alternative design right into the definition of a design defect: “A product . . . (b) is defective in design when the foreseeable risks of harm posed by the product could have been reduced or avoided by the adoption of a reasonable alternative design by the seller or other distributor, or a predecessor in the commercial chain of distribution, and the omission of the alternative design renders the product not reasonably safe.” (emphasis added).
Take the obvious example of a machine with sharp spinning parts. The same machine with a protective guard may be a safer alternative design. Or it might not. The point is that the plaintiff has to prove it. Take also the example we discussed in Bexis’ aptly named post “On Alternative Design.” That case involved hernia mesh, not pelvic mesh, and the plaintiffs’ claims failed because, among other reasons, they had failed to prove that a mesh of a different design would have been any safer. Consider hormone-based contraceptives. Cholesterol drugs. We could go on and on. All these products bear known and unavoidable risks, and those risks should not be labeled “defects” and result in potential liability unless the plaintiff can prove an alternate design would feasibly mitigate them. And, no, it is not sufficient to say that the feasible alternative is to use a different product or not use any product at all. As we observed in the aforementioned post, that would convert strict liability into absolute liability. As we asked in yet another post on this topic, are motorcycles defective because full-sized automobiles are generally safer? You get the point.