Bifolck v. Philip Morris, Inc.: Will the Connecticut Supreme Court Re-Invent Design Defect Law At The Expense Of Consumers?

By Jeremy H. D’Amico and Michael A. D’Amico
August 2016

For over half of a century, Connecticut product liability law has been premised on strict liability. See Garthwait v. Burgio, 153 Conn. 284, 289 (1965) (holding manufacturer culpable even when it “has exercised all possible care in the preparation and sale of [its] product”). Manufacturers are in a better position than the injured party to design their products safely and absorb the cost of injury. The Connecticut Supreme Court’s decision in Izarelli v. R.J. Reynolds Tobacco Co. released early in 2016 reaffirmed this keystone of product liability jurisprudence when the Court held that the modified consumer expectation test is the primary test for design defect claims. See Izarelli, 321 Conn. 172, 193 (2016) (setting forth the standards “for a strict product liability action based on defective design generally . . . .”). Despite this longstanding principle, the Court is now considering whether it should abandon its strict product liability premise for design defect claims, and replace it with Section 2(b) of the Restatement (Third) of Torts, which requires the plaintiff to prove the manufacturer’s foreseeability of harm, and prove the effectiveness of a reasonable alternative design. See Bifolck v. Philip Morris, Inc. See FEDB-CV-060001768-S (Connecticut Supreme Court docket for Bifolck); see also Restatement (Third) of Torts, Products Liability § 2(b) (Am. Law Inst. 1998). Nineteen years earlier, the Court held that a plaintiff should not be required to present evidence of a reasonable alternative design to prevail in a design defect case. Potter v. Chicago Pneumatic Tool Co., 241 Conn. 199 (1997). The sound public policy upon which this precedent rests remains unchanged, and as manufacturers increasingly develop products that operate beyond the common understanding of the ordinary consumer, strict product liability remains necessary to protect the rights of injured consumers.

Adopting section 2(b) of the Restatement (Third) will fundamentally alter Connecticut’s design defect product liability law by turning the focus of the jury away from the dangerous nature of the product itself, and toward the conduct of the manufacturer in designing the product. See Potter, 241 Conn. at 221–22 (“In weighing a product’s risks against its utility, the focus of the jury should be on the product itself, and not on the conduct of the manufacturer.”).

The Court’s decisions in Potter and Izarelli thoroughly discuss the history of product liability law in Connecticut and its strict liability origins. See Potter v. Chicago Pneumatic Tool Co., 241 Conn. 199, 207–15 (1997); Izarelli, 321 Conn. 184–93; see also Douglas A. Kysar, The Expectations of Consumers, 103 Colum. L. Rev. 1700 (2003) (reviewing the development of product liability law). The public policy behind strict product liability law is entrenched in the theory that the manufacturer is in the best position to protect against the harm caused by its products. See Potter, 241 Conn. at 209 (citing Escola v. Coca Cola Bottling Co. of Fresno, 24 Cal. 2d 453, 461 (1944) (stating the public policy of strict liability includes “(1) manufacturers could readily absorb or pass on the cost of liability to consumers as a cost of doing business; (2) manufacturers would be deterred from marketing defective products; and (3) injured persons, who lack familiarity with the manufacturing process, would no longer shoulder the burden of proving negligence.”). Public policy recognizes that a manufacturer cannot feasibly design every danger out of the product. But, the compromise in allowing a manufacturer to sell a product that may cause harm is that the manufacturer be held responsible for the harms that are caused by unreasonably dangerous products, regardless of foreseeability.

Connecticut’s Design Defect Law is Rooted in Strict Liability.

Connecticut adopted Section 402A of the Restatement (Second) of Torts in 1965, expanding liability of product sellers from those in privity with the manufacturer to any person injured by an “unreasonably dangerous” product. Garthwait v. Burgio, 153 Conn. 284, 289 (1965); see also Harmon v. Digliani, 148 Conn. 710, 718 (1961). A manufacturer is not liable for all injuries caused by its products, but only those injuries caused by a product that is unreasonably dangerous. A product is unreasonably dangerous when it is “dangerous to an extent beyond that which would be contemplated by the ordinary consumer who purchases it, with the ordinary knowledge common to the community as to its characteristics.” See Restatement (Second) of Torts §402A cmt. i (Am. Law Inst. 1965). Section 402A laid the framework for the Court’s adoption of the “consumer expectation test” used to determine product seller liability. The consumer expectation test requires plaintiffs prove:

  1. The defendant was engaged in the business of selling the product;
  2. The product was in a defective condition unreasonably dangerous to the consumer or user;
  3. The defect caused the injury for which compensation was sought;
  4. The defect existed at the time of the sale; and
  5. The product was expected to and did reach the consumer without substantial change in condition.

Izarelli, 321 Conn. at 184–85 (citing Giglio v. Conn. Light & Power Co., 180 Conn. 230, 234 (1980)); see also Rossignol v. Danbury School of Aeronautics, Inc., 154 Conn. 549, 561–62 (1967).

The consumer expectation test adopted by the Court and espoused in the Restatement (Second) was developed at a time when product liability law primarily involved manufacturing defect claims. See Izarelli, 321 Conn. at 187–88. In manufacturing defect cases a consumer’s expectations of the “defective” product can be compared against the other “non-defective” products sold by the manufacturer. Generally, a consumer expects a product to be manufactured as the manufacturer intended and in conformance with the rest of the product line. Strict product liability in manufacturing defect claims incentivizes manufacturers to develop robust quality control systems to ensure their products are safe and operate as intended before entering the stream of commerce.

Strict product liability in design defect cases serves as strong a role in incentivizing manufacturers to design safe products. Arguably, it is a stronger incentive. A manufacturer can have 100% quality control, but if the design of the product is unreasonably safe, no amount of quality control will protect the consuming public. But criticism emerged that the consumer expectation test was ill-suited for design defect claims. See Id. at 199–200 (citation omitted) (“[a]lthough the consumer expectations standard was conventionally viewed as more protective to plaintiffs than the risk-utility standard, it now is clear that courts have used the consumer expectations test most frequently to deny recovery to plaintiffs in cases involving obvious design hazards.”). The Court noted that the consumer expectation test may pose difficulties for the plaintiff because “one could not simply compare the defective product to others in the product line to make an objective assessment of the consumer’s expectations of the product.” Izarelli,321 Conn. at 188.

An example of a narrow reading of the consumer expectation test illustrates this concern. Consider the Court’s example of a table saw sold without a safety guard. See Izarelli, 321 Conn. at 202. If all table saws sold by every manufacturer were made without a guard, then a strict interpretation of the consumer expectation test would likely preclude a claim for injuries caused by the spinning blade. As the safety expectations of ordinary consumers regarding dangerousness are shaped by “ordinary knowledge common to the community,” the dangers associated with a visible spinning blade may not be considered “unreasonable.” See Izarelli, 321 Conn. at 199 (“In many instances manufacturers have been absolved from liability when an obvious danger caused serious injury, even though that injury could have been averted by a design modification that would not have added significantly to the cost of the product or impaired its usefulness.”) (citation omitted).

In reiterating the public policy of protecting consumers and incentivizing manufacturers to design safe products discussed in Potter, the Court in Izarelli made clear that the “modified consumer expectation test” is the primary test for design defect claims. See Izarelli, 321 Conn. at 211 (“[I]t would be contrary to the public policy of this state to . . . immunize a manufacturer from liability for manipulating the inherently dangerous properties of its product to pose a greater risk of danger to the consumer.”). While the modified consumer expectation test is the primary test for design defect claims, the consumer expectation test remains an option for plaintiffs when a “product failed to meet the ordinary consumer’s minimum safety expectations, such as res ipsa type cases.” Id. at 194; see also Id. at 191 (stating consumer expectation test can be used when “the incident causing injury is so bizarre or unusual that the jury would not need expert testimony to conclude that the product failed to meet the consumer’s expectations.”).

The Court initially adopted the modified consumer expectation test in Potter. The Court in Izarelli clarified that the purpose of the modified consumer expectation test is to “essentially provide the jury with information that a fully informed consumer would know before deciding whether to purchase the product.” Izarelli, 321 209. The modified consumer expectations test requires the plaintiff to offer into evidence, the product’s risks and its utility so that the jury can determine whether a “reasonable consumer would consider the product design unreasonably dangerous.” Id. at 190 (quoting Potter, 241 Conn. at 221). Some of the factors a plaintiff may utilize to meet her burden include (1) the usefulness of the product, (2) the likelihood and severity of the danger posed by the design, (3) the feasibility of an alternative design, (4) the financial cost of an improved design, and (5) the feasibility of the increased price upon the consumer. Id. at 221 n.15; see also Potter, 241 Conn. at 221 (listing factors that a jury “may consider” but noting plaintiffs are “not limited to” those listed). While a plaintiff may offer evidence of a reasonable alternative design, there is no requirement that a plaintiff must do so to meet its burden of proof as a matter of law. See Potter, 241 Conn. at 221 (“The availability of a feasible alternative design is a factor that the plaintiff may, rather than must, prove in order to establish that a product’s risks outweigh its utility.”).

Theoretically, and as illustrated in the table saw example above, the modified consumer expectation test protects plaintiffs by permitting more claims to be heard by the jury. Nevertheless, by making the modified consumer expectation test the primary test, plaintiffs are now required to expend significant sums to ensure the factors listed in Potter’sproposed jury charge are addressed and persuasively presented. Potter, 241 221 n.15. While not legally required to produce evidence of each factor, leaving factors unaddressed is dicey as juries may not be persuaded in the absence of proof on all factors mentioned in the judge’s charge, including a reasonable alternative design. But, although more difficult to prove, the modified consumer test remains true to the public policy of strict product liability. The jury’s focus remains on the product itself and its dangerous propensities.

Section 2 of the Restatement (Third) of Torts Uproots 50 Years of Design Defect Jurisprudence.

Section 2 of the Restatement (Third) of Torts discusses the product liability claims. Under Section 2(b) a product is defectively designed when:

The foreseeable risks of harm posed by the product could have been reduced or avoided by the adoption of a reasonable alternative design . . . and the omission of the alternative design renders the product not reasonably safe.

Restatement (Third) of Torts, Products Liability § 2(b). The Court addressed the adoption of this test nineteen years ago in Potter.There, the Court considered a draft version of Section 2(b) of the Restatement (Third) of Torts, which is identical to that found in the published version of the Restatement (Third) of Torts. Compare Potter, 241 Conn. at 216 (quoting draft of Section 2(b)) with Restatement (Third) of Torts, Products Liability § 2(b). The Court rejected the test in Section 2(b) stating “the feasible alternative design requirement imposes an undue burden on plaintiffs that might preclude otherwise valid claims from jury consideration.” Potter, 241 Conn. at 217. After the Court’s decision in Potter,the drafters of Section 2(b) in the Restatement (Third) of Torts added sections 3 and 4 to state that a reasonable alternative design need not be proved in res ipsa type cases or when the manufacture violates the law. See Restatement (Third) of Torts, Products Liability § 3 cmt. b.1.; id. cmt. a. (noting that section 3 applies to design defects that are “identical to that which would ordinarily be caused by a manufacturing defect.”). However, Section 2(b) remains unchanged.

The test proposed in Section 2(b) requires the Court to sever design defect claims from its strict product liability roots, cut ties with the public policy supporting its holding in Potter, and rebalance protection of the innocent consumer with the financial interests of manufacturers. Section 2(b) adopts principles of negligence for design defect claims. Comments to this section explain that the test “for products that are defectively designed or sold . . . achieve[s] the same general objectives as does liability predicated on negligence.” Id. at cmt. a. In addition, the requirement that a plaintiff must prove a reasonable alternative design and its effectiveness.

Strict product liability for design defects serves to protect the consuming public in ways the negligence standard proposed in Section 2(b) will not. Strict liability creates a strong incentive for manufacturers to adequately design, develop, and test the product before it enters the market. It sends the message to manufacturers that they should take care to allocate resources to develop safe designs and to discover defects. Strict liability provides that manufacturers who fail to perform these steps will face liability for their failures. This tells manufacturers that “if you want to earn a profit off your product marketed to the consuming public, then you will bear the responsibility of injuries caused.” Rightly, it emphasizes the wellbeing of the consumer over the profit of the manufacturer.

In contrast, the test in Section 2(b) lowers the bar from strict liability to negligence. It focuses the jury’s inquiry on the conduct of the manufacturer in designing the product. Incorporating elements of foreseeability will greatly increase the burden on plaintiffs. It is antithetical to the policy that those who “lack familiarity” should not “shoulder the burden of proving negligence.” Potter, 241 Conn. at 209. Just as ordinary consumers lack familiarity in the manufacturing process of the products they buy, ordinary consumers also do not generally have insight into manufacturing design or development processes. The consumer is significantly disadvantaged.

In addition to changing Connecticut’s design defect law to a negligence standard, section 2(b) also mandates plaintiffs prove a reasonable alternative design. While plaintiffs may offer evidence of reasonable alternative designs at trial, making proof of a reasonable alternative design a requirement will preclude plaintiffs from filing valid product liability claims where value cannot justify the expense of introducing evidence of such at trial assuming plaintiffs can even muster the huge resources and army of experts necessary to prove a reasonable alternative design. In a time of out-of-control litigation costs, which already bar many legitimate claims from seeing the light of a courtroom, legal tests that substantially increase these costs stand as a barrier to justice. Further, there is a real concern that manufacturers of products designed with no reasonable alternative will be immunized. See Potter, 241 Conn. at 219; see also Tincher v. Omega Flex, Inc., 104 A.3d 328 (Pa. 2014) (same).

Let’s use driverless cars as an example. Testing of these robot cars is occurring on public roads in many states across the country. Consider a scenario where a consumer is harmed because the driverless car causes a non-res-ipsa type accident. Absent specific contrary legislation on driverless cars, under Section 2(b), a plaintiff must submit evidence of a reasonable alternative design. Two ways come to mind: (1) obtain design information from a competitor that may make a safer driverless car, or (2) hire a team of experts to design, build, and present a working marketable prototype of a driverless car. As to the former, it is highly unlikely that a competing manufacturer will provide a plaintiff with its product design information voluntarily, and there are no discovery tools for which a plaintiff can obtain the information of a manufacturer’s competitor. As to the latter, the cost in proving this reasonable alternative design will be an impossible task for almost every plaintiff. Because driverless car technology is still in its testing phase, there may not be a reasonable alternative design available, and therefore, a plaintiff’s claim will be precluded at the outset.

The modified consumer expectation test permits a plaintiff to rely on a reasonable alternative design, or utilize one or more of the several other factors listed in Potter to prove her case. See Potter, 241 Conn. at 221 n.15. Thus, a plaintiff can present the risks and utility of a driverless car that is prone to crashing in certain situations. The jury can assess either of these products through the lens of an ordinary consumer. The focus remains on the safety of the product and the protection of the consuming public.

If the drafters of Section 2(b) were truly concerned with “creating incentives for manufacturers to achieve optimal levels of safety in designing and marketing products,” then strict liability for design defect claims would persist. Restatement (Third) of Torts, Products Liability § 2(b) cmt. a. The modified consumer expectation test allows the jury to utilize “ordinary knowledge common to the community” to assess the product. See Izarelli, 321 Conn. at 190 (“Under the ‘modified’ consumer expectation test, the jury would weigh the product’s risks and utility and then inquire in light of those factors, whether a ‘reasonable consumer would consider the product design unreasonably dangerous.’”). The judgment of the jury and what an ordinary consumer expects should not be supplanted for what a manufacturer failed to foresee. See Restatement (Second) of Torts §402A cmt. i. “[P]ublic policy demands that the burden of accidental injuries caused by products intended for consumption be placed upon those who market them.” Restatement (Second) of Torts § 402A, cmt. c. This has been the law in Connecticut for half a century. It is supported by sound public policy and should continue to persist for the benefit and safety of the consuming public.