Burden is Much Greater in a “Design Defect” Case

In my last newsletter, I talked about the manufacturing defect.  In the manufacturing defect case, you don’t have to show that all the products were “bad;” only that one bad apple came off the assembly line with a defect that later caused a fire.

The burden is much greater in a “design defect” case.  In such cases, you (the subrogating carrier) are alleging that the product is inherently defective.  That is, you are alleging that all the products that were manufactured were “bad” because they were all poorly designed.  In order to advance your design defect to trial in a federal action [1], you must be able to show not only that the product failed, but must show why it failed, and you must (with expert proof) be able to set forth the specific defect which you contend caused it to fail.  Some suggestions:

1. During discovery, obtain from the manufacturer a list of other claims of failure involving the same or substantially similar motors.  This list may assist your expert in determining whether there is a pattern of similar failures.  
2. Check the U.S. Consumer Product Safety Commission website to see if the product has been recalled.  If so, this may support your theory of a design defect if your loss was similar to those suffered by those that prompted the issuance of the recall.  
3. Design drawings and submissions to Underwriters Laboratory should be obtained and examined by your expert.
4. If possible, retain an expert that has previously gone against the manufacturer/defendant of the product in the past, has a working knowledge of the product and has already developed a theory of its design defect.  
5. The subject failed product should be invasively tested (on notice to the other parties) and compared to a test of an “exemplar” of the unit.

Bottom Line:    In a design defect case, simply saying “the product failed” is not enough.  In order to survive a motion and get to a jury, your counsel and expert must develop a supportable, specific theory as to why the design was flawed and how that flawed design led the product to fail and cause your insured’s loss.

[1] New York state courts do not follow the federal Daubert standard for expert witnesses.  In New York, it is generally easier to get a design defect case to a jury than it is in federal court.