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April 24, 2017 Practice Points

Limits on “Reasonable Alternative Design” in Product Defect Cases

By Katherine A. Kelter

A plaintiff claiming to be harmed by a particular product might argue that the product was defectively designed. To prove such a claim, the plaintiff may be required to show the existence of a feasible, reasonable alternative design whose adoption could have reduced, or prevented, the plaintiff's harm. Arguing over the existence of the product's alleged defect and its potential safer alternatives frequently results in lengthy and expensive litigation. A recent Massachusetts appeals court decision provides a useful reminder about the limits of just what constitutes a reasonable alternative. Establishing these limits early in litigation can result in a faster and more cost-effective resolution for the client.

In Niedner v. Ortho-McNeil Pharmaceutical, Inc., 90 Mass. App. Ct. 306 (2016) (further review denied), a teenage girl died from a blood clot that she developed shortly after beginning use of a contraception in the form of a patch. The development of blood clots was one risk associated with use of the patch, and this risk was disclosed in both the patch's product insert and by the girl's doctor. The girl's estate sued the patch's manufacturer and claimed, in part, that oral contraceptives in pill form were a "safer alternative" that carried fewer risks than the patch. The manufacturer successfully moved for summary judgment. On appeal, the court held that the pill was not a reasonable alternative to the patch. While the pill provides medication orally, the patch permits the medication to be absorbed through the skin. Thus, while both products operate to similar effect, the means by which they operate are "fundamentally different" and prevent the pill from being considered the patch's legally sufficient reasonable alternative.

This case is a helpful reminder for attorneys defending against design defect claims in which a safer reasonable alternative is argued to exist. Plaintiffs' experts may contend that a product is a reasonable alternative because it produces a comparable result in a safer manner. Defense attorneys should be prepared to rebut this argument with testimony about the legally significant distinctions between the product at issue and its proposed alternative. Distinguishing the end from the means could mean the difference between an efficient victory and an expensive defeat for the client.

Katherine A. Kelter is an associate with Conn Kavanaugh Rosenthal Peisch & Ford, LLP, in Boston, Massachusetts.

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