Our work on “onerous items” (vehicle, equipment, hearth) product legal responsibility circumstances is tremendously outnumbered by our drug and gadget circumstances (and possibly additionally outnumbered nowadays by web site privateness circumstances).  However the historical past of product legal responsibility has typically been pushed by such onerous items circumstances.  Consider Cardozo’s well-known opinion in MacPherson v. Buick.

At present’s case, Ford Motor Co. v. Tyler, 2023 W. Va. App. LEXIS 337, 2023 WL 8588042(W.Va. Ct. App. Dec. 8, 2023), is clearly not a prescription medical product case, however somewhat an automotive case.  Nonetheless, the query it decides impacts prescription medical product (notably gadget) circumstances.  It additionally extensively discusses (and disagrees with) a pro-plaintiff ruling within the dreaded Pelvic Mesh MDL.  The problem is whether or not West Virginia regulation requires proof of another design in negligent design defect circumstances.

Tyler concerned a deadly automotive accident.  One of many plaintiff’s theories was that the design of the brake fluid reservoir was faulty as a result of it was inadequately protected, allowing the discharge of brake fluid after a collision, thereby igniting a hearth. (There was one other defect principle, which was in the end rejected by the jury.) The plaintiff filed two claims on this principle: strict legal responsibility design defect and negligent design defect.  After the shut of proof, on the cost convention, the trial court docket mentioned it could instruct the jury that the strict legal responsibility design defect declare required the plaintiff to indicate the existence of a safer different design.  To date so good. However the trial court docket refused the defendant’s request for the same instruction for the negligent design defect declare.  The trial court docket acknowledged that the majority courts across the nation would come with that requirement, however the trial court docket was swayed by a call within the West Virginia Pelvic Mesh MDL {that a} safer different design was not required in negligence claims.  (The Pelvic Mesh MDL actually is the present that retains giving … nightmares to protection legal professionals.) The plaintiff in Tyler then dropped the strict legal responsibility design defect declare.  That meant that the jury heard not a phrase concerning safer different design.  The plaintiff’s ploy labored, as a result of the jury returned a major verdict within the plaintiff’s favor on the negligent design declare.  

The defendant then filed a movement for judgment as a matter of regulation or, within the different, for a brand new trial.  The principle argument within the movement was that the trial court docket ought to have instructed the jury that the plaintiff couldn’t prevail on negligent design except there was a safer different design.  The trial court docket denied the movement, and the difficulty went as much as the West Virginia intermediate appellate court docket.

The Tyler appellate court docket analyzed the difficulty by taking an intensive tour of each West Virginia product legal responsibility regulation and the regulation normally as as to whether claims for negligent design require a safer different.  We wrote an intensive blogpost on that latter level.  To make certain, that put up was largely prompted by the way in which the Pelvic Mesh MDL made a hash of the difficulty.  Not solely did the Pelvic Mesh MDL choose drop the safer different requirement from negligent design, however within the Shears case the Fourth Circuit subsequently sought steering from the West Virginia Supreme Court docket as as to whether a safer different was required in strict legal responsibility claims. As we mentioned in a previous put up, the difficulty is at present pending earlier than the West Virginia excessive court docket.  One trembles.  

The Tyler appellate court docket treats us to a radical and persuasive dialogue of West Virginia regulation, the Third Restatement of Torts (which requires a safer different for each strict legal responsibility and negligent design defect) and different state regulation.  In the long run, the (comparatively new) West Virginia intermediate appellate court docket agreed with the “overwhelming majority of states” and required another design in negligent design circumstances. That meant that the Tyler appellate court docket explicitly disagreed with the Pelvic Mesh MDL resolution.  However it did so in as well mannered and delicate a method as potential: “Whereas we conclude that Choose Goodwin incorrectly interpreted West Virginia regulation, he himself even acknowledged that another possible design will at all times be related in figuring out if a product was designed negligently.”  That’s good, we suppose.  

What was the plaintiff’s rationale for omitting the safer different requirement from the negligent design defect declare?  It was the identical rationale employed by the Pelvic Mesh court docket in getting the difficulty improper.  Right here is how the reasoning goes:  strict legal responsibility is about whether or not the product is unreasonably harmful, whereas negligence is concerning the defendant’s conduct.  On a superficial stage, that seems like a significant distinction.  However because the Third Restatement, circumstances from that “overwhelming majority” of different states, and, for that matter, the West Virginia Supreme Court docket within the Stone case demonstrated, one can not cogently assess a defendant’s reasonableness in designing a product with out assessing the provision of safer alternate options.  The Tyler court docket couldn’t “conceive of a factual state of affairs the place another possible design wouldn’t be a crucial component to find that the defendant was negligent in a design defect declare.”  (We share that place. Why ought to a defendant be discovered chargeable for a design when even the enterprising plaintiff lawyer or knowledgeable can not counsel an enchancment?)

Thus, the intermediate appellate court docket in Tyler allied itself with the Third Restatement, “overwhelming majority” of jurisdictions, and logic in requiring a safer different for negligent design claims.  It was, subsequently, error by the trial court docket in Tyler to not instruct the jury on the character of this requirement, and the defendant was entitled to a brand new trial.  We will solely hope that this resolution is persuasive to the West Virginia excessive court docket within the medical gadget case earlier than it.