The NAM joined with the Louisiana Association of Business and Industry in an amicus brief urging the Louisiana Supreme Court to overturn a lower court’s refusal to dismiss a 15-year-old product liability lawsuit. The suit claims that the manufacturer’s contraceptive, Norplant, was defectively designed. However, the Louisiana Products Liability Act (“LPLA”) requires that the plaintiff prove that an alternative design for the product was available at the time of sale to prevent the alleged harm. The alternative design created by the plaintiffs’ expert did not come into existence until many years after the product was sold.
The LPLA was enacted in 1988 to discourage fringe litigation, link a manufacturer’s liability to its actual fault, produce consistent and predictable results, and conserve the resources of both the courts and the litigants. Rules on summary judgment direct that a claim must be dismissed if a plaintiff is unable to produce factual support for any essential element of that claim. Without a showing that a practical alternative product design was in existence at the time, this case should have been dismissed.
The trial court expressed policy misgivings about the law and determined that the word “existed” was ambiguous, and that it could be read to include a claim if the scientific knowledge or technology for an alternative design was available at the time of sale. Our brief argued that this kind of policy decision should be made by legislatures, and in any case, the court’s conflation of “design” with the “science and technology out of which a design might flow” was not straightforward, offended the ordinary use of ordinary words, read “design” out of the law altogether, ignores the plain use of “design” in related contexts, and introduced absurdity where there was none before.
On Nov. 19, 2010, the Louisiana Supreme Court declined to review this appeal.