A trial court decision in Nevada threatens to substantially expand claims against manufacturers for defective product design. The court ruled that, under strict liability principles, a product is designed unreasonably if it poses a risk of injury beyond what would be expected by the product user's own subjective expectations.
The NAM and other groups filed an amicus brief in the Nevada Supreme Court arguing that the test must be objective: a design is unreasonable only if it poses a risk of injury beyond what would be expected by "the ordinary user having the ordinary knowledge available in the community." A subjective test is prone to bias and would effectively establish absolute liability. An objective test, on the other hand, would allow expert evidence of the statistical rarity of the kinds of injuries experienced in this case, evidence of compliance with applicable government regulations, and evidence from other persons in a position similar to the plaintiff in this case. In addition, every other state that applies the consumer expectations test uses an objective evidence standard.
The case arose from burns suffered by a motocross biker in an accident. He sued the clothing manufacturer because the shirt was not fire-retardant. In February, 2011, the case was settled and no decision was issued.