by Dawn M. Goulet & Mark R. Miller
Over the last half century, courts have cited comments to the Restatement (Second) of Torts § 402A (1965) as the basis for the consumer-expectation test, which rose to prominence in product defect cases in the 1960s and 1970s. Under the test, a product is unreasonably dangerous if it is “dangerous to an extent beyond that which would be contemplated by the ordinary consumer who purchases it, with the ordinary knowledge common to the community as to its characteristics.”1 Over time, some in the legal profession came to feel that the consumer-expectation test, initially created to address manufacturing defects, was not proper for use in design defect cases, primarily because it was feared that consumers might not be aware of what to expect regarding the safety of certain products.2 In 1997, the American Law Institute adopted the Restatement (Third) of Torts: Products Liability § 2(b) (1998), providing that a product is “defective in design when the foreseeable risks of harm posed by the product could have been reduced or avoided by the adoption of a reasonable alternative design . . . and the omission of the alternative design renders the product not reasonably safe.”3 The factors for consideration set forth in Comment f to that section are commonly referred to as the risk-utility test.
A National Trend Away from the Consumer-Expectation Test
While the Restatement (Third) has been widely criticized and not widely adopted by the states, it arguably evidences, or at least coincides with, an ideological shift away from the consumer-expectation test and toward some version of the risk-utility test in product liability litigation involving design defects. This trend is the product of both court opinions and state legislatures adopting “tort reform” legislation (such as Wisconsin’s recent passing of its Omnibus Tort Reform Act, 2011 Wisconsin Act 2).
At last count, 35 of the 46 states where strict products liability is recognized now use some form of risk-utility analysis to decide whether a product is defectively designed. Of these jurisdictions, eighteen exclusively employ a risk-utility test,4 while seventeen others, including Illinois, allow for an application of either the consumer-expectation test or the risk utility test.5 Only a small minority of states apply the consumer-expectation test exclusively. 6
The Evolution of Strict Products Liability in Illinois
Illinois has long followed Section 402A of the Restatement (Second) of Torts (1965), which imposes strict liability upon one “who sells a product in a defective condition unreasonably dangerous to the user or consumer or to his property.”7 Until 1990, the sole test used to determine whether a product was unreasonably dangerous was the consumer-expectation test.8 Even so, aspects of the risk-utility test—in particular, consideration of arguably safer alternative designs—began to creep into the Illinois Supreme Court’s decisions as early as the late-70s.9
In 1990, the Illinois Supreme Court held in Lamkin v. Towner that a plaintiff may, as an alternative to using the consumer-expectation test, prove liability under the risk-utility test “by introducing evidence that the product’s design proximately caused his injury [where] the defendant fails to prove that on balance the benefits of the challenged design outweigh the risk of danger inherent in such designs.”10 In the years that followed, some lower courts seemed to draw a distinction between simple and complex products, but in Calles v. Scripto-Tokai Corp., the Illinois Supreme Court confirmed the continued validity of both tests when it declined to adopt a “simple product” exemption to the risk-utility test.11
The Illinois Supreme Court’s Decision in Mikolajczyk v. Ford
The most comprehensive discussion and application of the competing tests in Illinois can be found in the Illinois Supreme Court’s 2008 decision in Mikolajczyk v. Ford Motor Company.12 In Mikolajczyk, the plaintiff sued on behalf of her husband, who was killed when the Ford Escort he was driving was struck from behind and his seat collapsed, causing him to be propelled backward and strike his head on the rear seat of the car.13 The issue on appeal was whether the trial court erred by instructing the jury on the consumer-expectation test and by rejecting the defendants’ requested instruction on the risk-utility test.14 Defendants in the case argued that the risk-utility test (as articulated in the Restatement (Third) of Torts § 2(b)) should be adopted as the sole, exclusive test in design defect cases or, in the alternative, the exclusive test for complex products.15
The Illinois Supreme Court declined to adopt Section 2(b) of the Restatement (Third) in its entirety, finding that, contrary to existing law, it would require plaintiffs to plead and prove the existence of a feasible alternative design in every case and could confuse jurors by shifting the focus from whether a product was unreasonably dangerous to whether it was “not reasonably safe.”16 Notably, the court stated that it was:
. . . reluctant to make a change that would so fundamentally alter the law of product liability in this state based solely on the suggestion that the drafters of the Restatement have a better idea of what the law should be than our own legislature. Such a change, if it is to be made, is a matter of public policy, better suited to legislative action than judicial decisionmaking.17
Although it decided not to adopt the Restatement (Third) as a statement of substantive law, the court did find the formulation of the risk-utility test set out in Comment f to Section 2(b) to be instructive, and adopted this “integrated” test to resolve the issue of what test “trumps” if the consumer-expectation and risk-utility tests yield different results. The integrated test holds:
the risk-utility balance is to be determined based on consideration of a “broad range of factors,” including “the magnitude and probability of the foreseeable risks of harm, the instructions and warnings accompanying the product, and the nature and strength of consumer expectations regarding the product, including expectations arising from product portrayals and marketing,” as well as “the likely effects of the alternative design on production costs; the effects of the alternative design on product longevity, maintenance, repair, and esthetics; and the range of consumer choice among products.”18
In adopting the integrated test, the court made clear that both the consumer-expectation test and the risk-utility test would “continue to have their place in [Illinois] law of strict product liability based on design defect.”19 Although the plaintiff is the master of his complaint and may pursue whatever theory of liability he chooses, both the plaintiff and the defendant have the right to choose as their method of proof either the consumer-expectation test or the risk-utility test.20 If the evidence “is sufficient to implicate the risk-utility test,” then the consumer-expectation test “is to be treated as one factor in the multifactor risk-utility analysis.”21 Thus, if either or both parties utilize risk-utility evidence, a corresponding jury instruction should be given.22
The Seventh Circuit’s Decision in Show v. Ford
Despite the Illinois Supreme Court’s recent re-affirmation of the validity of the consumer-expectation test—and its care to defer a public policy change to “legislative action” rather than “judicial decisionmaking”—the seventh circuit issued an opinion in September 2011 that, for all intents and purposes, eliminates the test as a separate method of proof and has the potential to severely restrict its role as a factor in the integrated risk-utility test.
In Show v. Ford, plaintiffs were the driver and passenger of a 1993 Ford Explorer that was struck by another car and rolled over. They sued Ford, alleging that the Explorer was defective because its design made it unstable.23 The suit was removed to federal court, where the parties agreed to proceed before a magistrate judge.24 By the close of discovery, the plaintiffs had elected not to designate an expert to testify on the vehicle’s design, and the magistrate granted Ford’s motion for summary judgment, concluding that the suit could not proceed without such testimony.25
Conceding that expert testimony would be needed if they were proceeding under the risk-utility test, the plaintiffs nevertheless argued that jurors did not need expert testimony to apply the consumer-expectation test.26 Noting that the Illinois Supreme Court has not considered this specific question in any case involving a complex product like an automobile, the magistrate judge thought it would likely concur with several Illinois appellate courts that have held expert testimony to be vital when aspects of a product’s operation or design are outside a lay person’s knowledge.27
On appeal, the seventh circuit first noted that, because Illinois does not treat the consumer-expectation and risk-utility tests as separate theories of liability, but merely as differing methods of proof, the parties and magistrate judge may have erred by assuming that the underlying issue was one of Illinois law, as opposed to one of federal law governing evidence and procedure.28 Despite a somewhat lengthy discussion of it, the court bypassed this choice-of-law issue. Instead, it summarily concluded that, because there is “no sharp line between the risk-utility and consumer-expectations approaches . . . [i]f, as plaintiffs conced[ed], it takes expert evidence to establish a complex product’s unreasonable dangerousness through a risk-utility approach, it also takes expert evidence to establish a complex product’s unreasonable dangerousness through a consumer-expectations approach.”29
Under the Seventh Circuit’s Reasoning, the Consumer-Expectation Test Does Not Survive as an Alternative Test
The court’s dicta indicates that it was tempted to treat the issue as an evidence question and simply hold that expert testimony was required as a matter of federal law. Presented as it was with a question of state substantive law, however, the court appears to have stretched itself to reach the same result. Its analysis seems to be as follows: (1) the two tests both fall under the larger umbrella of liability based on an unreasonably dangerous product, (2) there is no bright line between the two tests, as the smaller test is incorporated as one of the “broad range of factors” making up the larger test, (3) therefore, a requirement for the larger test must also be a requirement for the smaller test.
As a practical matter, the benefit of using the consumer-expectation test has always been clear. It is a single-factor test that is narrow in scope.30 It asks the jury to determine only one thing: whether a product is “dangerous to an extent beyond that which would be contemplated by the ordinary consumer who purchases it, with the ordinary knowledge common to the community as to its characteristics.” But the seventh circuit’s opinion in Show essentially says that a jury cannot be relied upon to make this determination unless it first hears expert testimony on the design of the product. It is furthermore unclear whether this applies only to complex products, like automobiles, or to all products, as the court noted that jurors “own lots of products without being able to explain (or even understand) the principles behind their construction and operation.”31
In Mikolajczyk, the Illinois Supreme Court plainly held that the consumer-expectation test is still a viable, alternative test, but that, where evidence is introduced that implicates the integrated risk-utility test, the latter will apply.32 By essentially requiring a plaintiff to always submit expert testimony on design issues, the seventh circuit is guaranteeing that the risk-utility analysis will be implicated in every case. This flatly contradicts the Illinois Supreme Court’s holding in Mikolajczyk that both tests “continue to have their place,” and that the parties “may litigate an entire case using the consumer-expectation test” if they choose.33
Dicta in Show v. Ford Furthermore Undercuts the Consumer-Expectation Test as Even a Factor in an Integrated Risk-Utility Test
Dicta in Show concerning what expert testimony is required under the consumer-expectation test confuses the issue even further. Before “bypassing” the subject of whether federal evidentiary law applies to the parties’ dispute, the court engages in a discussion seemingly meant to undercut the notion that jurors can use their own experiences to determine whether an “ordinary consumer” would consider a product to be unreasonably dangerous.34 In Mikolajczyk, the Illinois Supreme Court made clear that “[n]o evidence of ordinary consumer expectations is required, because the members of the jury may rely on their own experiences to determine what an ordinary consumer would expect.”35 The seventh circuit notes, however, that “[f]ederal law often requires expert evidence about consumers’ knowledge and behavior, because jurors are supposed to decide on the basis of the record rather than their own intuitions and assumptions,” and points to areas of law like trademark and Fair Credit Reporting Act litigation, where surveys and other expert evidence are often used to establish whether consumers are likely to be confused.36 It goes on to opine that the six-person juries used in many federal civil cases are too small to reveal what expectations consumers as a whole may have where “[p]rofessional surveys of consumers’ beliefs entail carefully designed questions put to hundreds of persons.”37
This discussion is dangerous because it imperils the utility of the consumer-expectation test as even a factor in the integrated risk-utility test. If a plaintiff must hire an expert to conduct and report on extensive surveys of consumers’ opinions in order to argue that this factor weighs in favor of liability, it is unlikely indeed that this argument will be pursued in all but the relatively few cases where damages are so high as to make such expenses worthwhile. Courts have already cited Show for the proposition that such evidence is indeed required.38
The discussion misses the whole point of a jury trial, where jurors are meant to represent a sampling of the community. When we as a society ask them, as we frequently do, to tell us how a “reasonable person” would behave under given circumstances, we expect them to come to the jury box with their own experiences and expectations as reasonable persons. Requiring expert testimony or statistical analysis of what other consumers may expect is contradictory to the whole concept of a jury trial. Moreover, professional surveys of consumers’ beliefs are at their core subjective and can be easily manipulated. Every day we see advocates for seemingly opposite positions both claiming the same polls and surveys support their positions. The results of surveys can furthermore be skewed by how the audience is targeted and how questions are asked.
The Lay Judgment of the Juror Plays an Important Role in Product Defect Cases
In a 2003 article for the Columbia Law Review, Douglas Kysar argues that the consumer-expectation test “has the potential to provide an important avenue for the expression of lay values associated with product risks that might otherwise be ignored within products liability law.”39 Citing research by cognitive psychologists, he posits that lay jurors bring considerations to the table that strict expert analysis fails to take into account, because “lay individuals’ basic conceptualization of risk is much richer than that of the experts and reflects legitimate concerns that are typically omitted from expert risk assessments.”40 For most jurors, the notion of “risk” is not a purely actuarial concept, but a human one.
In addition to the likelihood and severity of harm, individuals also appear to care about a variety of qualitative attributes, such as whether a risk is voluntarily confronted by a victim, whether its potential harm is equitably distributed among the population, whether it poses a particularly dreaded form of death or illness, whether it threatens future generations, and whether the perceived source of the risk is believed to be a trustworthy actor. Such factors do not appear within the basic model of cost-benefit analysis, which tends to abstract away from qualitative characteristics in order to provide a uniform basis for assessing a wide range of health and safety risks.41
We ask juries to make tough decisions every day, knowing that jurors are not perfect. We do so because we still believe that there is value in having a group of real human beings, as representatives of our society, tell us what they consider to be reasonable or unreasonable. The seventh circuit’s decision in Show v. Ford is a disappointing rejection of this basic principal.
1 Restatement (Second) of Torts § 402A, cmt. i.
2 See, Blue v. Envtl. Eng’g, Inc., 215 Ill. 2d 78, 91 (2005) (citing Restatement (Third) of Torts: Products Liability § 1, Cmt. a, at 6-7 (1998)); Barker v. Lull Eng’g Co., 573 P.2d 443, 452-53 (Cal. 1978) (generally credited with creating the risk-utility test).
3 Restatement (Third) of Torts § 2(b).
4 Gen. Motors Corp. v. Jernigan, 883 So.2d 646, 662-63 (Ala. 2003); Armentrout v. FMC Corp., 842 P.2d 175, 183-84 (Colo. 1992); Banks v. ICI Ams., Inc., 450 S.E.2d 671, 674-75 (Ga. 1994); Wright v. Brooke Group Ltd., 652 N.W.2d 159, 169 (Iowa 2002); Toyota Motor Corp. v. Gregory, 136 S.W.3d 35, 42 (Ky. 2004); Jenkins v. Int’l Paper Co., 945 So.2d 144, 150-51 (La. Ct. App. 2006); St. Germain v. Husqvarna Corp., 544 A.2d 1283, 1285- 86 (Me. 1988); Gregory v. Cincinnati Inc., 538 N.W.2d 325, 329-30 (Mich. 1995); Kallio v. Ford Motor Co., 407 N.W.2d 92, 96-97 (Minn. 1987); Williams v. Bennett, 921 So.2d 1269, 1273-75 (Miss. 2006); Rix v. Gen. Motors Corp., 723 P.2d 195, 201-02 (Mont. 1986); Cavanaugh v. Skil Corp., 751 A.2d 518, 522 (N.J. 2000); Brooks v. Beech Aircraft Corp., 902 P.2d 54, 61-62 (N.M. 1995); Denny v. Ford Motor Co., 662 N.E.2d 730, 735-36, 639 N.Y.S.2d 250 (N.Y. 1995); Azzarello v. Black Bros. Co., 391 A.2d 1020, 1026-27 (Pa. 1978); Branham v. Ford Motor Co., 701 S.E.2d 5 (S.C. 2010). Uniroyal Goodrich Tire Co. v. Martinez, 977 S.W.2d 328, 335 (Tex. 1998); Morningstar v. Black & Decker Mfg. Co., 253 S.E.2d 666, 682-84 (W. Va. 1979).
5 Gen. Motors Corp. v. Farnsworth, 965 P.2d 1209, 1220 (Alaska 1998); Dart v. Wiebe Mfg., Inc., 709 P.2d 876, 879-80 (Ariz. 1985); Lee v. Martin, 45 S.W.3d 860, 864 (Ark. Ct. App. 2001); Merrill v. Navegar, Inc., 28 P.3d 116, 125 (Cal. 2001); Potter v. Chicago Pneumatic Tool Co., 694 A.2d 1319, 1333-34 (Conn. 1997); Liggett Group, Inc. v. Davis, 973 So.2d 467, 475-76 (Fla. Dist. Ct. App. 2007); Tabieros v. Clark Equip. Co., 944 P.2d 1279, 1311 (Haw. 1997); Mikolajczyk v. Ford Motor Co., 901 N.E.2d 329, 352, (Ill. 2008); Halliday v. Sturm, Ruger & Co., 792 A.2d 1145, 1152-54 (Md. 2002); Kelleher v. Marvin Lumber & Cedar Co., 891 A.2d 477, 492 (N.H. 2005); Endresen v. Scheels Hardware & Sports Shop, Inc., 560 N.W.2d 225, 233-34 (N.D. 1997); Perkins v. Wilkinson Sword, Inc., 700 N.E.2d 1247, 1248-49 (Ohio 1998); McCathern v. Toyota Motor Corp., 23 P.3d 320, 331-32 (Or. 2001); First Premier Bank v. Kolcraft Enters., Inc., 686 N.W.2d 430, 444-45 (S.D. 2004), superseded by rule change on unrelated grounds 2006 S.D. Sess. Laws Ch. 341 as recognized in In re Estate of Duebendorfer, 721 N.W.2d 438, 444 (S.D. 2006); Ray ex rel. Holman v. BIC Corp., 925 S.W.2d 527, 533 (Tenn. 1996); Dimick v. OHC Liquidation Trust, 157 P.3d 347, 349-50 (Utah Ct. App. 2007); Soproni v. Polygon Apartment Partners, 971 P.2d 500, 505 (Wash. 1999).
6 Rojas v. Lindsay Mfg. Co., 701 P.2d 210, 211-12 (Idaho 1985) but see Puckett v. Oakfabco, Inc., 979 P.2d 1174, 1181 (Idaho 1999) (noting absence of reasonable alternative design as a basis for affirming summary judgment); Baker v. Heye-Am., 799 N.E.2d 1135, 1140 (Ind. Ct. App. 2003); Delaney v. Deere & Co., 999 P.2d 930, 946 (Kan. 2000); Rahmig v. Mosley Mach. Co., 412 N.W.2d 56, 81-82 (Neb. 1987); Stackiewicz v. Nissan Motor Corp. in U.S.A., 686 P.2d 925, 928 (Nev. 1984) but see McCourt v. J.C. Penney Co., Inc., 734 P.2d 696, 697-98 (Nev. 1987) (recognizing alternative design is a factor for determining whether a product is unreasonably dangerous); Woods v. Fruehauf Trailer Corp., 765 P.2d 770, 774 (Okla. 1988); Castrignano v. E.R. Squibb & Sons, Inc., 546 A.2d 775, 779 (R.I. 1988) but see Buonanno v. Colmar Belting Co., 733 A.2d 712, 718 (R.I. 1999) (discussing relevancy of alternative design in context of whether a product is defectively designed); Farnham v. Bombardier, Inc., 640 A.2d 47, 48 (Vt. 1994); Green v. Smith & Nephew AHP, Inc., 629 N.W.2d 727, 739-41 (Wis. 2001); Sims v. Gen. Motors Corp., 751 P.2d 357, 364-65 (Wyo. 1988).
7 Survada v. White Motor Co., 32 Ill. 2d 612, 622-23 (1965) (adopting § 402A).
8 Blue, 215 Ill. 2d at 86 (2005).
9 See, e.g., Anderson v. Hyster Co., 74 Ill. 2d 364, 368 (1979) (discussing the availability of safer alternative designs); Kerns v. Engelkei, 76 Ill. 2d 154, 164 (1979) (same).
10 Lamkin v. Towner, 138 Ill. 2d 510, 529 (1990).
11 224 Ill. 2d 247 (2007).
12 231 Ill. 2d 516 (2008).
13 Id. at 520-22.
14 Id. at 521.
15 Id. at 541.
16 Id. at 543.
17 Id. at 544.
18 Id. at 555 (quoting Restatement (Third) of Torts: Products Liability § 2, Cmt. f at 23 (1998)).
19 Id. at 556.
21 Id. at 556, 569
22 Id. at 569.
23 Show v. Ford, 659 F.3d at 584.
25 Id. at 584.
26 Id. at 585.
28 Id. at 586.
29 Id. at 587.
30 Mikolzjczyk, 231 Ill. 2d at 554.
31 Show, 659 F.3d at 587 (citing a report discussing such everyday objects as bicycles and toilets).
32 Mikolzjczyk, 231 Ill. 2d at 569.
33 Id. at 555, 569.
34 Show, 659 F.3d at 586.
35 Id. This comports with other courts’ interpretations of the consumer-expectation test. See, e.g., Irion v. Sun Lighting, Inc., No. M2002-00766-COA-R3-CV, 2004 Tenn. App. LEXIS 210, *20 (Apr. 7, 2004) (“A plaintiff using the consumer expectation test must produce evidence of the objective conditions of the product as to which the jury is to employ its own sense of whether the product meets ordinary expectations as to its safety under the circumstances presented by the evidence.”) (quotation omitted).
38 See Sosnowski v. Wright Medical Tech., Inc., No. 11 C 59, 2012 U.S. Dist. LEXIS 41303, *15 (Mar. 27, 2012) (“The Seventh Circuit has suggested that in cases involving complex devices, expert testimony may be necessary under the consumer expectation test. The court concludes that defendant’s hip prosthesis is a complex device, and that plaintiff was required to present expert evidence as to consumer expectations. Plaintiff has failed to offer such evidence, and therefore this factor does not favor plaintiff.”) (citation omitted).
39 Douglas A. Kysar, The Expectations of Consumers, 103 Colum. L. Rev. 1700, 1762 (2003).
40 Id. at 1764 (quotations and citation omitted).
41 Id. at 1763-64.
Dawn M. Goulet received her law degree from Loyola University Chicago School of Law in 2009. For over nine years she has worked for Wexler Wallace LLP, first as a paralegal and now as an attorney, on complex litigation against some of the largest corporations represented by the largest law firms in the country. Dawn is heavily involved in the firm’s healthcare litigation and products liability practice areas. Most recently, she has also devoted countless hours to representing funeral homes around the state of Illinois in litigation involving the alleged mismanagement of hundreds of millions of dollars once held in the Illinois Funeral Directors Association Pre-Need Funeral Trust.
Mark R. Miller received his law degree from Loyola University Chicago School of Law in 2004. Mark has represented both plaintiffs and defendants in all phases of complex litigation. In addition to commercial and consumer litigation, his practice has evolved to include mass torts. His tireless commitment to Wexler Wallace’s clients is proof that he understands the importance of the legal system’s role in protecting the interests of consumers and small businesses.
Trial Journal, Winter 2013, Volume 15, Number 1