Manufacturers can be sued for defective design, defective manufacturing, and failure to warn of known risks from their products. This suit involved a cigarette smoker who developed lung cancer and sued the manufacturer for defective design and negligent manufacturing of its cigarettes. A jury returned a verdict in her favor for more than $500,000.
On appeal, the manufacturer argued that that the plaintiff did not prove that the cigarettes were dangerous beyond that contemplated by the ordinary consumer, nor did she show that there was an alternative design that would have allowed her to avoid her injury. The NAM and 5 other business and insurance groups filed an amicus brief supporting the company’s position on liability for design defects. We argued that under either old or more recent standards of liability, the plaintiff must show that there is a more reasonable design for the product. Manufacturers should not be subject to insurer-like liability when their products come with risks, if there is no alternative design that will make them less risky. Our brief provided a broad policy perspective that goes went beyond the tobacco products at issue, and showed that holding manufacturers liable for making risk-free products could be devastating to a broad category of other products and industries, such as convertible automobiles, motorcycles, personal watercraft, pharmaceuticals and a cold beer on a hot day. We highlighted the common sense principle that before a product manufacturer can be found liable, there must be something wrong with the product, and implicit in that concept is the requirement that there must be “a better way to build the mousetrap.” Inherently dangerous products are not necessarily unreasonably dangerous.
If a product has no reasonable alternative design (i.e., there is no way to make it safe), the focus is no longer on whether it is defective, but whether it is so lacking in social utility that it should not be marketed at all, and that is a decision for legislators, not the courts.
Unfortunately, on 12/11/08, the Florida Supreme Court declined to hear this appeal, thereby perpetuating the ambiguity in Florida law as to whether injured parties must prove that safer products could be made in order to prevail in liability cases involving inherently dangerous products.