WLF Legal Opinion Letter
State Court Properly Declines Role Of Policy-Maker In Product Liability Case
By Stephen A. Fogdall
October 15, 2010 (Vol. 19 No. 24)
In recent years, New York courts have grappled with the question of whether a plaintiff should be permitted to bring a design defect claim where the plaintiff's core contention is not that the manufacturer failed to design a safer product, but that the manufacturer should never have designed the product at all. New York courts have rightly concluded that permitting such a claim could amount to a judicial ban on the product, and would implicate policy judgments beyond the proper role of courts. The latest entry in this trend is Fabiano v. Philip Morris Inc., 2010 NY Slip Op. 20286 (N.Y. Sup. Ct. Jul. 13, 2010), which in turn relied heavily on a New York Court of Appeals decision, Adamo v. Brown & Williamson Tobacco Corp., 900 N.E.2d 966 (N.Y. 2008).
In Adamo, the court rejected a plaintiff's claim that regular cigarettes, in contrast to "light" cigarettes, were defectively designed because they contain unsafe levels of tar and nicotine. The Adamo court applied the standard rule in design defect cases that requires a plaintiff to identify a feasible alternative design that would have made the product safer for its intended use. The Adamo court then construed the term "feasible" to require that the product "remain functional" under the proposed alternative design, i.e., continue to meet the same consumer needs the product was originally designed to satisfy. 900 N.E.2d at 968. The plaintiff in Adamo asserted that light cigarettes, which are lower in tar and nicotine, constitute just such a feasible alternative design. Id. The court disagreed, concluding that "[t]he function of a cigarette is to give pleasure to a smoker," and that it was "virtually uncontested" that light cigarettes do not provide the same pleasure to smokers as do regular cigarettes. Id. Thus, light cigarettes were not, in fact, "equivalent in function, or utility, to regular ones," and provided no evidence of a feasible alternative design that could support a claim that regular cigarettes are defectively designed. Id. at 969.
The Adamo court found the lack of functional equivalence between light and regular cigarettes analogous to prior cases in which New York courts rejected design defect claims because the plaintiff offered as the proposed alternative design not a more safely-designed product meeting the same need, but a fundamentally different product meeting a completely different need. As an example, the Adamo court cited a quick-drying lacquer sealer held not to be defective in Felix v. Akzo Nobel Coatings, 262 A.D.2d 447, 692 N.Y.S.2d 413 (2d Dep't 1999). The plaintiff in Felix argued that the lacquer sealer was defective because it was made from a highly flammable solvent base, and suggested that the manufacturer could have designed the product using a non-flammable water base. See Adamo, 900 N.E.2d at 969. The Felix court rejected this argument because a sealer made from a non-flammable water base would not have been quick drying, a "functional difference" that would have defeated the very purpose of the sealer at issue. Id. In exactly the same way, the Adamo court concluded, a lower tar, lower nicotine "regular" cigarette would have defeated the very purpose for which smokers purchase regular cigarettes, namely, to obtain the enhanced pleasure they apparently derive from smoking them despite the well-known increased risks associated with their use. Id. at 968-69.
This reasoning was applied and extended in Fabiano, a recent decision out of the Supreme Court for New York County. In Fabiano, the plaintiff had smoked both regular and light cigarettes. Accordingly, the plaintiff contended, in contrast to the plaintiff in Adamo, that both regular and light cigarettes were defective and that "no cigarettes on the market are safe." 2010 NY Slip Op. 20286 at 4. The Fabiano plaintiff proposed various alternatives that she contended would have been safer than regular and light cigarettes, such as "uninhaleable" tobacco or "de-nicotized" cigarettes. The court rejected these suggestions because, as in Adamo, they were not functionally equivalent to regular or light cigarettes. As the court aptly explained, "[t]he gist of Plaintiff's argument is that Defendants, instead of manufacturing and marketing cigarettes qua cigarettes, should manufacture and distribute something entirely different." Id. The Fabiano court rightly concluded that it was not the place of courts to dictate to manufacturers the products they should produce, or to consumers the products they should consume. Id. at 7. Because the plaintiff's proposed alternative design effectively substituted an entirely new product intended to meet a very different need than cigarettes, her design defect claim failed as a matter of law. Id.
What is most significant about Adamo and Fabiano is that the courts in those cases expressly eschewed any attempt to engage in "risk-utility balancing" regarding whether cigarettes should ever have been designed in the first place. Indeed, the Adamo court recognized that cigarettes might well fail such risk-utility balancing: "A strong argument can be made that, when the pleasure they give smokers is balanced against the harm they do, regular cigarettes are worse than useless." Adamo, 900 N.E.2d at 969. Yet, the court concluded, this could not justify the imposition of liability under a theory of defective design because imposing such liability "would amount to a judicial ban" on cigarettes, something that "should be done by legislative bodies, not by courts." Id.
In this respect, Adamo and Fabiano depart from the product liability doctrine of some other jurisdictions which invite their courts in every instance to function as a "combination social philosopher and risk-utility economic analyst" in determining whether the plaintiff has a viable design defect claim. Carrecter v. Colson Equip. Co., 499 A.2d 326, 330 n.7 (Pa. Super. Ct. 1985). The implicit reasoning of Adamo and Fabiano is that balancing risks and utilities may be workable where the plaintiff is able to propose a specific alternative design that can be weighed in comparison to the actual design of the product. But where the plaintiff can offer no such specific alternative proposal, and argues instead that the product simply should not have been designed at all, the plaintiff's claim reduces to unconstrained "social philosophizing" regarding what products ought or ought not to be on the market. As Adamo and Fabiano properly conclude, such an inquiry is outside the proper competence of courts, and should be no part of a design defect claim.
Stephen A. Fogdall is a partner with Schnader Harrison Segal & Lewis LLP in its Philadelphia office.