Will Nevada Propose a New Risk Assessment Test for Defective Products?

Will Nevada Propose a New Risk Assessment Test for Defective Products?

Every year, millions of people are harmed because of defective products. Some states are opting to use a test to determine defects that many believe is manufacturer-friendly. One case in Nevada may determine if such a test will be used in future Reno medical product liability cases.

The Risk-Utility Balancing Test

One Nevada widow was awarded over $4 million after the jury in her initial case determined that a Ford vehicle’s roof design was defective and consequently led to her husband’s death. The jury used an ordinary consumer’s reasonable expectations to reach the decision. Ford Motor Co. disagreed with the decision and appealed to the Nevada Supreme Court.

The company argues that the jury should have instead weighed the roof design’s risks against its benefits when determining defectiveness, as well as whether a safer feasible design existed. Whether the court decides to keep the older consumer-expectations framework or adopt the new, the decision will impact future product liability cases.

Many believed that the risk-utility test of the Third Restatement of Torts would be upheld in cases in Pennsylvania, Florida and Connecticut, but this was not the case. It appears there could be a shift away from the newer risk-utility balancing test. This could be good news for those who file product liability cases in the future.

Some product liability attorneys maintain that the risk-utility test favors the needs of manufacturers because it unfairly requires the plaintiffs to prove that any defects are completely the fault of the makers. Additionally, when the injured party is obligated to prove an alternative design, this proves problematic, because control of the understanding of a product and its design is often uniquely held by the maker.

When such an obligation is shifted to the plaintiff, the jury may be instructed to consider complex components of product design and performance that is beyond the experience of the average consumer.

Which side the Nevada Supreme Court will take is still up in the air. What is certain is that this appeal could place a greater undue burden on the plaintiff to prove that a product was indeed defective, and impact any future product liability case in Nevada.