Keefe, John E.

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Remarks by the Honorable John E. Keefe at Seton Hall University School of Law

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Remarks by the Honorable John E. Keefe* at SetonHall University School of Law'I have been asked to moderate the discussion regarding how aplaintiff proves an alternative safer design case under the New JerseyModel Jury Charge.' We will assume, for the purpose of today'sdiscussion, that the pending model charge that has been approved bythe Model Civil Jury Charge Committee, after much hard work anddiscussion, will be approved by the Administrative Office of theCourts for use by trial judges and lawyers in the near future.Arguably, the concept of an alternative safer design as thepreferred method of proving product defect began in New Jerseywhen the Legislature passed the Product Liability Act in 1987. TheAct, often referred to simply as the PLA, provides an absolute defensefor a manufacturer that can prove that, at the time its productentered the marketplace, no other practical and technically feasiblealternative design would have prevented the harm incurred by theplaintiff without substantially impairing the reasonably anticipated orintended function of the product.3 This statutory defense becameknown as the "state-of-the-art" defense and elevated Dean Wade's risk-utility factor number four to the status of an absolute defense.4The practical effect of the defense is to cause plaintiffs toapproach their cases from a different perspective than that used inthe typical design defect case. Under the balancing approach of therisk-utility analysis, the global risks of the product are weighed againstJudge, NewJersey Superior Court, Appellate Division.Editor's Note: These remarks are based upon a presentation given at SetonHall University School of Law's Seventh Annual Health Law Symposium on February12, 1999.See NEWJERSEY MODELJURY CHARGE ON DESIGN DEFECT (Proposed Official Draft1998).2 See N.J. STAT. ANN. § 2A.58C-1 (West 1987).SSee id. § 2A:58G-3a(l).4 SeeJohn W. Wade, On the Nature of Strict Liability for Products, 76 Miss. L.J. 825, 837(1973). Wade includes "[t]he manufacturer's ability to eliminate the unsafe characterof the product without impairing its usefulness or making it too expensive to maintainits utility" within a series of factors to balance in judging whether an item is unreasonablydangerous. See id. The Supreme Court of NewJersey also has given due considerationto Dean Wade's approach. See Cepeda v. Cumberland Eng'g Co., 76 N.J. 152, 174, 386A.2d 816, 826 (1978).265SETON HALL LA W REVIEWthe general, global benefits from having the product on the market.Confronted with the state-of-the-art defense, however, plaintiffs areforced to examine a more specific issue of whether a technologicallyfeasible, and economically practical, alternative design was availableat the time of marketing that would have avoided the injury to theplaintiff. If able to present such proofs, the plaintiff has met theanticipated defense and has raised a jury question. As a practicalmatter, the vast majority of reported design defect cases have utilizedthis approach to proving design defect since the PLA was adopted.Thus, the black letter law of the Restatement (Third) of Torts:Products Liability (Restatement (Third)) on the subject of designdefects, that proof of an alternative safer design is the preferred andgenerally accepted method of proving product defect, is in accordwith existent New Jersey case law.5 If that proposition was ever indoubt, the recent case of Lewis v. American Cyanamid Co.,6 in anopinion written by Justice Pollock, dispelled any skepticism. In Lewis,Justice Pollock cited comment f of section 2 of the Restatement(Third), writing, "To succeed on his design-defect claim, plaintiff wasrequired to prove that a practical and feasible alternative designexisted that would have reduced or prevented his harm."' The courtthen stated that, to determine whether plaintiffs proposedalternative design met that test, "the jury was required to perform arisk-utility analysis.""Lewis, however, was a case in which the plaintiff chose to prove adesign defect claim within the context of an alternative safer designclaim. The question remains whether a plaintiff in New Jersey stillhas the option of proving the case simply by attempting to prove thatthe product's risks outweigh its utility in the global or macro senseand, thus, avoid the practical problems stemming from the statutorystate-of-the-art defense. The answer is unclear. Justice Pollock'searlier comments notwithstanding, the Lewis court, in discussing whohas the burden of proof in such matters, stated, "A plaintiff mustprove either that the product's risks outweighed its utility or that theproduct could have been designed in an alternative manner so as tominimize or eliminate the risk of harm."9The Restatement (Third), on the other hand, limits use of theCompareRESrATEMENT (THIRD) OF TORTS: PRODuCrS LIABILInY § 2(b) (1997) withLewis v. American Cyanamid Co., 155 N.J. 544, 560, 715 A.2d 967, 975 (1998).6 155 N.J. 544, 715 A.2d 967 (1998).7 Lewis, 155 N.J. at 560, 715 A.2d at 975 (1998).8 Id.9 Id. at 570, 715 A.2d at 980 (emphasis added).266 [Vol. 30:265REMARKS BYJUDGE KEE2Erisk-utility analysis in its macro or global sense to certain categories ofcases in which the product manifestly exhibits such low social utilityand such a significant degree of danger that the design of theproduct is unreasonable without proof of an alternative design. 0That concept actually tracks the exception to the state-of-the-artdefense found in the PLA. The PLA provides that a defendantcannot assert the state-of-the-art defense when the plaintiff establishesby clear and convincing evidence to the court's satisfaction all threeof the following factors:1) The product is egregiously unsafe or ultra-hazardous; 2) Theordinary user or consumer of the product cannot reasonably beexpected to have knowledge of the product's risks, or the productposes risk of serious injury to persons other than the user orconsumer; and 3) the product has little or no usefulness."What does this mean in practical terms for a lawyer attemptingto put together a design defect case? New Jersey law is in agreementwith section 2 of the Restatement (Third) and its comments, butapproaches the subject from a slightly different angle. Moresuccinctly, New Jersey law requires that plaintiffs, except in theunusual case, must prove a safer alternative design.The recent New Jersey appellate division case of Truchan v.Nissan Motor Corp. in US.A.12 illustrates the ways of proving thealternative safer design case. In Truchan, the plaintiff suffered severeinjuries when the automobile in which she was a rear-seat passengerstruck a utility pole. The impact with the utility pole was apparentlycaused by the driver's inebriation and occurred at a relatively low rateof speed, estimated at between twenty-two and twenty-eight miles perhour." After the accident, the plaintiff was found seated, wearing atwo-point, lap-belt restraint, and leaning against the rear window.The driver and front seat passenger were not wearing seat belts at all;however, both sustained relatively minor injuries. The plaintiff didnot fare as well. Her spinal column literally was ripped in half, thusdisabling all parts of her body below the navel. 14 A post-accidentphysical examination of the plaintiff revealed a deep bruisebeginning on the area below her navel and extending across herright side, ending on her right flank. The bruise, according to thetreating doctor, was the result of blunt trauma caused by plaintiff's10 See RESTATEMENT (THIRD) OF TORTS: PRODUCTS LIABILrIY § 2 cmL e (1997).SSee N.J. STAT. ANN. § 2A-58C-3b (West 1987).12 316 N.J. Super. 554, 720 A.2d 981 (App. Div. 1998).is See id. at 558, 720 A.2d at 983.14 See id. at 558-59, 720 A.2d at 983.1999] 267SETON HALL LAW REVIEWviolent contact with the lap belt. The doctor attributed the cause ofplaintiffs extensive internal injury to the lap belt holding her pelvisin the seat, while her torso was permitted to flex forwardunrestrained. 5After settling a lawsuit with the owner and driver of the car, theplaintiff proceeded to trial against Nissan Corporation. Shecontended that Nissan equipped the automobile with a defectivelydesigned lap belt and failed to warn passengers of the potential forenhanced injuries if worn above the lower abdomen. The plaintiffcontended that she was seated in an upright position at the time ofthe accident. "The experts unanimously agreed that to minimize thepossibility of injury, a rear seat occupant should wear a lap belt lowon the hips, with the belt positioned on the anterior-superior portionof the passenger's iliac crest."' 6 Experts for the plaintiff asserted thatNissan, contrary to federal motor vehicle standards, had installed theseat-belt anchors in an asymmetrical manner, causing the laprestraint to ride up too high on the passenger's abdomen. Theplaintiff contended that a safer two-point lap belt, which would notrise above the passenger's hips, was a feasible alternative. Theplaintiff's experts also testified that a three-point, shoulder-harnesslap belt, similar to those that are typically provided for the driver andfront-seat passenger, would have prevented the injuries.17In addition to these specific proofs relative to safer alternativedesign, the plaintiff contended that the lap belt was inherentlydangerous and breached consumers' reasonable expectations ofsafety. Secondly, the plaintiff claimed that Nissan failed to warn usersof the dangerous qualities of the lap restraint. Nissan expertstestified that the two-point restraint complied with all applicablefederal standards. Based on the nature of the bruises on theplaintiffs body, and contrary to her testimony, Nissan's expertsopined that the plaintiff was in a slumped position tilting forty-five toninety degrees to her left with the seat belt positioned over her navelwhen the accident occurred." Nissan's experts, therefore, concludedthat her chosen position in the vehicle was the proximate cause ofthe catastrophic injury sustained. With regard to the three-point15 See id. at 558, 720 A.2d at 983.16 Id. at 559, 720 A.2d at 983. The iliac crest is that portion of the hip bone inwhich large quantities of bone marrow are concentrated. The On-line MedicalDictionary (visited Oct. 22, 1999) <http://www.graylab.ac.uk/cgi-bin/omd?iliac+crest>.17 See id.18 See Truchan, 316 N.J. Super. at 559, 720 A.2d at 983.268 [Vol. 30:265REMARKS BYJUDGE KEE26restraint claim, the defense experts opined that the plaintiff wouldhave sustained the same injuries had this style of restraint beenused." These experts stated that the shoulder belt would have lockedupon the force of the collision, and "would have 'strategically . . .followed the lie of the lap belt.' 20 The defense experts additionallyconcluded "that the torso would have 'follow[ed] a horizontal arc,'tearing the spinal column and resulting in the same injuries.,21The judge instructed the jury on all three of the plaintiffs defecttheories: alternative safer design, consumer expectations, and failureto warn. The opinion does not tell us what instructions the judgegave the jury on the consumer expectation test for design defect. Asfor the alternative safer design theory, the judge instructed the jurythat the "[p]laintiff must also prove . . . that there was available analternative safer design, practicable under the circumstances, whichwould have eliminated the alleged defect in the internal restraintsystem and [would have] prevent[ed] her from being injured to theextent she was., 22 In addition to this charge, the judge instructed thejury on proximate causation. The judge told the jury that "proximatecause means that the defect in the product was a substantial factor,which singly or in combination with another cause, created plaintiff'sinjuries."23 In another part of the charge, the judge instructed thejury that if it "were to conclude that 'plaintiff would have beeninjured . . . as she was, even if the vehicle had been designeddifferently, [then Nissan would be] entitled to a verdict because thealleged defect ... could not have been a substantial factor in causingher injuries.'2 4Despite the fact that the case went to the jury on three separatetheories of product defect and on the critically disputed fact issue ofwhether the plaintiff was seated upright or slouched, the trial judgeasked the jury only two questions. First, Was the product defectiveand, second, Was the defect a proximate cause of the plaintiffsinjuries?25 The jury found that the product was defective but that thedefect was not a proximate cause of the plaintiffs injuries. Theplaintiff then moved for a new trial, and the motion was grantedbased on the trial court's cryptic observation that the verdict was19 See id. at 559-60, 720 A.2d at 983.20 Id. at 560, 720 A-2d at 983.21 Id., 720 A.2d at 983-84.Id., 720 A.2d 984.23 Id. at 561, 720 A.2d at 984.24 Truchan, 316 N.J. Super. at 561, 720 A.2d at 984.25 See id.1999] 269SETON HALL LA W REVIEWagainst the weight of the evidence and resulted in a miscarriage ofjustice. Nissan's motion for leave to appeal was granted, as was theplaintiff's cross-appeal. 6The appellate division concluded that a new trial was warranted.The appellate division held that the trial judge's interrogatories tothe jury invited an inconsistent verdict. Finding that, although arational explanation for the jury's answers could be given, theappellate division was not satisfied that the jury was instructedproperly so as to legitimize its conclusion that the product wasdefective, but was not a proximate cause of the plaintiff's injuries.The appellate division pointed out that in the typical alternative saferdesign case, the issue of product defect subsumes the question ofproximate causation.28 That is so because the jury is instructed that aproduct is defective only if the risk of harm to the plaintiff could havebeen reduced or avoided by the adoption of an alternative designthat was both practical and feasible, the omission of which rendersthe product not reasonably safe. If, under that instruction, a juryfinds product defect, that jury also has determined the issue ofproximate cause because the jury has already found that analternative design would have prevented the plaintiffs harm.29Consequently, to ask the jury a second time whether the productdefect was a proximate cause of plaintiffs injuries invites aninconsistent result.-" The jury verdict in this case reflected either thatthe jury failed to appreciate that nuance or that the jury actually wasfocusing on another issue, such as whether the product was defectivebecause it failed to warn plaintiff to sit upright in the vehicle whilewearing the lap belt. The absence of the warning was of no moment,however, because the plaintiff would not have heeded it even if itwere given.As stated earlier, the judge instructed the jury on all three ofplaintiffs defect theories. The verdict sheet did not disclose thetheory upon which the jury decided. The case raises many questionsthat I will simply articulate now, but not answer. A series of questionscome to my mind when I read Truchan in light of the issue of provingproduct defect after the Restatement (Third):(1) Is the consumer expectation test incompatible with analternative safer design case? The Model Civil Jury Charge26 See id.27 See id. at 562, 720 A.2d at 985.28 See id. at 565, 720 A.2d at 986.29 See id. at 566, 720 A.2d at 987.so See Truchan, 316 N.J. Super. at 568, 720 A.2d at 988.270 [Vol. 30:2651999] REMARKS BYJUDGE KEEFE 271and the Restatement (Third) seem to suggest that oneexcludes the other.(2) Is this theory something that a plaintiff tactically wants topursue?(3) How does an attorney present proof on a person'sexpectation about seat belts, other than personal opinion?(4) Will such proofs tend to distract the jury rather than focus iton the primary issue?(5) Should the judge have asked the jury to answer a specificinterrogatory on the fact issue of how the plaintiff waspositioned in the car?(6) What significance would it have had if the jury found that theplaintiff was seated upright, as she claimed to be?(7) What significance would it have had if the jury found that theplaintiff was either lying down or tilting to the left at a forty-five degree angle?(8) The opinion appears to have been written as a misuse case.What benefit does a defendant derive from interjectingmisuse into the case?31(9) When alternative safer design is the method of proving aproduct defect, is evidence regarding other risk-utility factorsrelevant?(10) Are risk-utility factors one (its utility to the user and to thepublic as a whole) and three (the availability of a substituteproduct that would meet the need and not be as unsafe)relevant in this context?(11) Are factors two, four, five, six, and seven any more than aparticularized restatement of Learned Hand's formula fora1 In New Jersey, knowledge of the risk that the manufacturer knew that theplaintiff could have injured herself as she did is imputed to the manufacturer if theproduct is being used in its intended manner or a reasonably foreseeable manner.This is perhaps another way in which New Jersey case law differs somewhat from theRestatement (Third). Section 2(b) of the Restatement (Third) addresses the"foreseeable risks of harm posed by the product," suggesting that proof of foreseeabilityof the harm is the plaintiff's burden, although the plaintiff may have been using theproduct in the manner intended. See RESTATEMENT (TMiRD) OF TORTS: PRODUCTSLIABILrnY § 2 cmL a (1997). Surveying jurisprudence on the topic, the Restatement(Third) found, "Most courts agree that, for the liability system to be fair and efficient,the balancing of risks and benefits in judging product design and marketing must bedone in light of the knowledge of risks and risk-avoidance techniques reasonablyattainable at the time of distribution." Id. If, on the contrary, the product is beingmisused, the plaintiff has the burden of proving objective foreseeability of the misuseas well as the availability of a reasonable and practical design to meet the anticipatedmisuse.SETON HALL LAW REVIEWimposing a tort duty?s1(12) Are not the proofs offered under those factors no more thanan attempt to show the relative magnitude of the risk, thegravity of the anticipated injuries, and the fairness ofrequiring the defendant to bear the cost of avoiding the riskthat caused injury to the plaintiff?(13) What kind of evidence do you envision being offered underthe remaining relevant factors?As you can see, this issue has raised a multitude of questions.Now let's hear our distinguished panel's insights on this interestingtopic.32 See United States v. Carroll Towing, 159 F.2d 169, 173-74 (2d Cir. 1947). JudgeHand's formula "proposed that whether an actor's conduct was negligent shoulddepend on whether the burden of a precaution was greater than the gravity of theinjury discounted by the probability that the injury would occur in the absence of theprecaution .... " Michael Well, Scientific Policymaking and the Torts Revolution: TheRevenge of the Ordinary Observer, 26 GA. L. REV. 725, 731 (1992).272

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Remarks by the Honorable John E. Keefe at Seton Hall University School of Law

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