The Guide is an invaluable online tool for litigation and transactional attorneys. The Guide provides for more than 70 common law causes of action:

- Each action’s elements;
- The most recent state and federal cases that cite the actions’ elements;
- The applicable statute of limitations for each action; and
- Defenses to each cause of action.
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Strict Liability Design Defect

1 Elements and Case Citations

“A design defect exists when the product is built in accordance with its intended specifications, but the design itself is inherently defective.” Barker v. Lull Engineering Co., 20 Cal. 3d 413, 439 (1978). California has two alternative sets of elements for establishing Strict Products Liability – Design Defect:

1. Defendant manufactured/distributed/sold the product;

2. That the product did not perform as safely as an ordinary consumer would have expected it to perform when used or misused in an intended or reasonably foreseeable way;

3. Plaintiff was harmed; and

4. The product’s failure to perform safely was a substantial factor in causing Plaintiff’s harm.

(The “Consumer Expectation Test”)

OR

1. That the defendant manufactured/distributed/sold the product;

2. That the plaintiff was harmed ; and

3. That the product’s design was a substantial factor in causing harm to the plaintiff; and

4. the benefits of the product’s design do not outweigh the risks of the design.

This last factor requires considering, among others, the following elements (as relevant to the specific case):

The gravity of the potential harm resulting from the use of the product;

(b) The likelihood that this harm would occur;

(c) The feasibility of an alternative safer design at the time of manufacture;

(d) The cost of an alternative design; and

(e) The disadvantages of an alternative design.

(The “Risk Benefit Test”)

Both tests can be alleged in the alternative. See Barker v. Lull Engineering Co., 20 Cal. 3d 413, 432 (1978). The “Risk Benefit Test” is not a defense to the “Consumer Expectation Test.” See Chavez v. Glock, Inc., 207 Cal.App.4th 1283, 1303 (2012).

“[A] defendant involved in the marketing/distribution process has been held strictly liable if three factors are present:

(1) the defendant received a direct financial benefit from its activities and from the sale of the product;
(2) the defendant’s role was integral to the business enterprise such that the defendant’s conduct was a necessary factor in bringing the product to the initial consumer market; and
(3) the defendant had control over, or a substantial ability to influence, the manufacturing or distribution process.”

Bay Summit Community Ass’n v. Shell Oil Co., 51 Cal. App. 4th 762, 773 (1996).

CALIFORNIA STATE COURTS

California Supreme Court: Soule v. Gen. Motors Corp., 8 Cal. 4th 548, 566-71 (1994); Barker v. Lull Engineering Co., 20 Cal. 3d 413, 429-32 (1978) (identifying two tests for strict liability for design defect).

California 1st Dist.: Bailey v. Safeway, Inc., 199 Cal. App. 4th 206, 214 (2011); Jones v. John Crane, Inc., 132 Cal. App. 4th 990, 1001-02 (2005).

California 2d Dist.: Garrett v. Howmedica Osteonics Corp., 214 Cal. App. 4th 173, 182 (2013); Chavez v. Glock, Inc., 207 Cal. App. 4th 1283, 1304-05 (2012).

California 3d Dist.: Collins v. Navistar, Inc., 214 Cal. App. 4th 1486, 1500-01 (2013).

California 4th Dist.: Howard v. Omni Hotels Mgmt. Corp., 203 Cal. App. 4th 403, 424 (2012).

California 5th Dist.: Willard v. Caterpillar, Inc., 40 Cal. App. 4th 892, 918 (1995); Brooks v. Eugene Burger Management Corp., 215 Cal. App. 3d 1611, 1625-26 (1989).

California 6th Dist.: West v. Johnson & Johnson Prods., Inc., 174 Cal. App. 3d 831, 856 & 863 n.30 (1985); Akers v. Kelley Co., 173 Cal. App. 3d 633, 648 n.8 (1985), disapproved on other grounds at People v. Nesler, 16 Cal. 4th 561, 582 n.5 (1997).

CALIFORNIA FEDERAL COURT

United States Court of Appeal for the 9th Circuit: Torres v. Taser Int’l, Inc., 277 Fed. Appx. 684, 685-86 (9th Cir. 2008).

Central District: Michery v. Ford Motor Co., No. CV 12-04957 RSWL (FFMx), 2013 U.S. Dist. LEXIS 161445, at *11-13 (C.D. Cal. Nov. 12, 2013).

Eastern District: Waldo v. Eli Lilly & Co., No. CIV. S-13-0789 LKK/EFB, 2013 U.S. Dist. LEXIS 145772, at *7-8 (E.D. Cal. Oct. 8, 2013); Crayton v. Rochester Med. Corp., No. 1:07-CV-1318 OWW GSA, 2011 U.S. Dist. LEXIS 11112, at *36-37 (E.D. Cal. Feb. 4, 2011).

Northern District: Monigan v. National Presto Indus., No. C 12-3698 SI, 2013 U.S. Dist. LEXIS 177069, at *13-17 (N.D. Cal. Dec. 17, 2013); Bookhamer v. Sunbeam Prods., Inc., 913 F. Supp. 2d 809, 815 (N.D. Cal. 2012).

Southern District: Cruz v. Sears, Sears’ Craftsman Tools, No. 12-CV-00623-H (BGS), 2012 U.S. Dist. LEXIS 99817, at *5-6 (S.D. Cal. July 18, 2012).

2 Defenses to Claim for Design Defect

(1) Cal. Code Civ. Proc. § 431.30(b)(2) (pleading affirmative defenses), and other standard defenses. See Chapter 1 for all defenses.

(2) Statute of Limitations: Cal. Code Civ. Proc. § 335.1 (two years) if the plaintiff suffered personal injury.

(3) There are two alternative tests which exist for identifying a design defect, the “risk benefit test” and the “consumer expectation test.” The consumer expectation test focuses on whether the product meets ordinary expectations as to its safety under the circumstances. The alternative test is a risk benefit test that requires the defendant to show, after the plaintiff proves an injury from the product’s design, that the benefits of the design outweigh the inherent risks of danger. A product is defective if either test is met. Sparks v. Owens-Illinois, Inc., 32 Cal. App. 4th 461, 472 (1995).

(4) Economic Loss: “[E]conomic loss alone, without physical injury, does not amount to the type of damage that will cause a negligence or strict liability cause of action to accrue. ‘In a strict liability or negligence case, the compensable injury must be physical harm to persons or property, not mere economic loss.’” County of Santa Clara v. Atlantic Richfield Co., 137 Cal. App. 4th 292, 318 (2006).

(5) Prescription Drug Exemption: Manufacturers of prescription medication cannot be held liable for strict liability under the theory of “design defect.” “‘[H]arm to some users from prescription drugs is unavoidable. Because of these distinctions, the broader public interest in the availability of drugs at an affordable price must be considered in deciding the appropriate standard of liability for injuries resulting from their use.’ . . . In many cases, to withhold a drug from the market in order to enhance its safety would not serve the public welfare, and public policy favors the development of new drugs despite the presence of some risks, even serious risks, ‘because drugs can save lives and reduce pain and suffering.’ . . . The potential for strict liability could cause drug manufacturers to refrain from researching and developing beneficial drugs for fear of liability, and the cost of insurance to protect against strict liability could increase the cost of medication beyond the reach of those who need it most.” Garrett v. Howmedica Osteonics Corp., 214 Cal. App. 4th 173, 183 (2013). This rule has been extended to prostheses and other “implanted devices.” Id. at 184-85. However, “[d]rug manufacturers . . . are not exempt from liability for manufacturing defects, failure to warn or negligence.” Id. at 183 (emphasis added).

(6) Vaccine Act Preemption: “[M]anufacturers are generally immunized from liability for failure to warn if they have complied with regulatory requirements and have given the warning to the healthcare professional, the vaccine recipient, or the vaccine recipient’s legal representative.” Holmes v. Merck & Co., 697 F.3d 1080, 1084 & 1086 n.7 (9th Cir. 2012) (citing the “National Childhood Vaccine Injury Act,” 42 U.S.C. § 300aa-22(e)).

(7) FDA Preemption: “[L]ike prescription drugs, implanted medical devices are available only through the services of a physician and can alleviate pain and suffering, sustain life or provide other important benefits” and thus design defect strict products liability does not apply. Garrett v. Howmedica Osteonics Corporation, 214 Cal. App. 4th 173, 181-84, (2013); see also Kashani-Matts v. Medtronic, Inc., No. SACV 13-01161-CJC(RNBx), 2013 U.S. Dist. LEXIS 169518, at *12 (S.D. Cal. Nov. 22, 2013) (“Because Plaintiff’s design defect claim is an ‘attack’ on the FDA review process rather than a parallel state claim, it is preempted”); Houston v. Medtronic, Inc., No. 2:13-cv-1679-SVW-SH, 2013 U.S. Dist. LEXIS 108996, at *25-26 (C.D. Cal. July 20, 2013) (Medical devices approved by the FDA cannot form the basis for a strict liability claim based on design defect and are preempted.; state law claims are preempted under 21 USCS § 360k);

(8) A product is defectively designed if the plaintiff demonstrates that the product fails to perform as safely as an ordinary consumer would expect when used in an intended or reasonably foreseeable manner, or if the plaintiff proves that the product’s design proximately caused his injury and the defendant fails to prove that, on balance, the benefits of the design outweighed the risk of danger inherent in the design. Barker v. Lull Engineering Co., 20 Cal. 3d 413, 435, 143 Cal. Rptr. 225 (1978).

(9) Product misuse is a superseding cause of injury that absolves a tortfeasor of his or her wrongful conduct only when the misuse was “so highly extraordinary as to be unforeseeable.” See Perez v. VAS S.P.A., 188 Cal. App. 4th 658 (2010).

(10) Comparative negligence principles apply to actions founded on strict products liability.Aguirre v. Home Depot U.S.A., Inc., 1:10-cv-00311-LJO-GSA, 2012 U.S. Dist. LEXIS 119979 (E.D. Cal. Aug. 22, 2012).

(11) A superseding cause absolves a tortfeasor of liability, even though his or her conduct was a substantial contributing factor, when an independent event intervenes in the chain of causation, producing harm of a kind and degree so far beyond the risk the original tortfeasor should have foreseen that the law deems it unfair to hold him or her responsible. Collins v. Navistar, Inc., 214 Cal. App. 4th 1486, 1491 (2013). However, “[i]n California the doctrine requires more than mere negligence on the part of the intervening actor. ‘[T]he fact that an intervening act of a third person is done in a negligent manner does not make it a superseding cause if a reasonable man knowing the situation existing when the act of the third person is done would not regard it as highly extraordinary that the third person so acted or the act is a normal response to a situation created by the defendant's conduct and the manner in which the intervening act is done is not extraordinarily negligent.’” Doupnik v. General Motors Corp., 225 Cal. App. 3d 849, 863 (1990).

(12) Nondelegable Duty Doctrine: “[A] carrier who undertakes an activity (1) which can be lawfully carried on only under a public franchise or authority and (2) which involves possible danger to the public is liable to a third person for harm caused by the negligence of the carrier's independent contractor.” Castro v. Budget Rent-A-Car System, Inc., 154 Cal. App. 4th 1162 (2007).

(13) Equitable Indemnification: A manufacturer “cannot seek equitable indemnification from a retailer found not to have been negligent or independently at fault, but found to be liable solely under the strict liability theory of design defect.” Bailey v. Safeway, Inc., 199 Cal. App. 4th 206, 215 (2011).