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VOL. 111 | NO. 122 | Wednesday, July 2, 1997

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Plaintiffs or Product Designers Plaintiffs or Product Designers American Law Institutes restatement shifts burden of proof from defendants to plaintiffs By SUZANNE THOMPSON The Daily News The American Law Institute (ALI), in its recent Restatement of Torts: Product Liability, has adopted principals governing product liability which places a burden on the plaintiffs to produce an alternative design in cases of product liability concerning design flaws. ALI, though not a governing board, consists of a group of lawyers across the United States who are generally held to be the elite of the legal community, according to Fred Davis, a professor and former dean of the law school at the University of Memphis. Six local lawyers are members of the ALI, which has some 2700 members nationally. The ALI sponsors projects to review and restate laws on an ongoing basis. Davis said that while these restatements are not binding in any way, they are closely held by trial lawyers and judges across the nation. Judges frequently site the ALI restatement in their opinions. Davis explained some of the background about the way in which product liability cases have been handled generally. "Under normal principals of tort law, the plaintiff has the obligation of pleading and proving the carelessness, or negligence of the defendant.," Davis said. This was frequently difficult, because the plaintiffs did not have access to the manner in which products were produced. Realizing the onerous evidentiary burden this position creates, a Supreme Court Justice in California, Roger Traynor, ruled in the 1940s that manufacturers should be held strictly liable for imperfections in their designs which cause injuries. Traynors ruling, and other similar ones which followed it, became a standard in proving cases of product liability. The ALI made its first restatement of Tort laws years ago, and later published a second restatement, an updated version. Its last restatement was generally considered to be more plaintiff-friendly, according to Davis. One area of product liability law which has been clouded with ambiguity, Davis said, was cases involving design defects. A section of the previously published restatement addressed this and attempted to eliminate the necessity of proving negligence, according to Leo Bearman, Jr., a local attorney who frequently defends product liability cases. The manufacturer of a product which is defective, or unreasonably dangerous when it leaves the manufacturer and then causes injury, can be held liable, even though he has exercised due care, Bearman explained. "I guess you could argue that the restatement is easier on plaintiffs because they dont have to prove that the manufacturer was guilty of lack of due care in design or manufacture," Bearman said. He went on to say that it is frequently difficult to prove that a product is defective or unreasonably dangerous when it leaves the manufacturer. "Just because a product does not function as you anticipate that it should, or want it to, does that mean its defective?" Bearman said. Bearman said proof in such cases ordinarily requires experts, such as engineers, doctors or scientists to prove the alleged defectiveness of the product. ALI recently revised its restatement again. The proposed final version was published in April. Jerry Taylor, a plaintiffs attorney at Taylor, Halliburton, Ledbetter & Caldwell, said he feels the newly published restatement of ALI will have an effect on the outcome of product liability cases. "It does put upon the plaintiff to carry a heavier burden of proof. Whereas, in the past, all you had to do was show that the item was either defective or dangerous, one of the two," he said. The new restatement provides that plaintiffs offer a reasonable alternative design in cases involving design defects. "Under this new standard, it will become a burden of proof for the plaintiff. It will put a big on us," Taylor said. Although the practice of showing an alternative design in defective product cases is not new in and of itself, the requirement to do so is. "Good plaintiffs lawyers have been creative to show either a safer design or instruction, or a safer mechanism at a reasonable cost to the manufacturer, but that was by choice as a creative alternative to inform the hearer of the facts, which really, in the past, has not been a burden of the plaintiff," Taylor said. Davis said this new restatement, which is 375 pages in its entirety, took 5 or six years in the making. He said even with the changes, the restatement provides more clarity in the law. "Its a great improvement over what we had," Davis said. "They came up with a restatement of the law which resolves all the ambiguities that we had suffered with under the old restatement." Still, Davis said the restatement had some bitter opponents, such as a Professor Shapo at the Northwest University School of Law, who published a booklet in opposition of the restatement. Opponents, such as Shapo, said that the restatement of torts has gone too far when it imposes a the rule of evidence, as in the product defects area, which shifts much of the burden of proof from the defendant to the plaintiff, Davis said. Yet in two cases decided within the last six months at the state supreme court levels, one in New York and the other in Connecticut, both courts have refused to impose this requirement of alternative design. Davis said in both cases plaintiffs were allowed to recover damages without showing the existence of a feasible alternative. "Now it seems like what it is saying is that even though a product doesnt meet the standard, youve got to come up with what would have met the standard or what would have been a safer or more reasonable design," Taylor said. Taylor said he can see where the restatement might especially affect cases involving automobile air bags. "If the plaintiff has to show a better design, then what is required of the plaintiff is to redesign the product for the manufacturer, and that burden shouldnt be upon the consumer." Taylor said this is essentially asking plaintiffs to become manufacturers designers. "If the manufacturer is going to put an item in the stream of commerce, whether it be a vehicle with an air bag, a child restraint seat that is defective, that may break upon impact, or whatever, then that burden ought to rest with the manufacturer to make the product safely without the risk of harm," Taylor said. Davis put the restatement into perspective. "One has to remember, this is simply an authoritative private, expression of what the law should be, its not binding in any court, anywhere. But, it does have the impromata of the endorsement of this prestigious group of people," Davis said.

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