Category Liability Doctrine Bars Certain Design Defect Claims, Schwartz and Silverman Explain
In the law of product liability, lawyers representing manufacturers have
underutilized the broad prohibition on “category liability.” Shook Public
Policy Partners Victor Schwartz and Cary Silverman explain this doctrine
and show how a Mississippi trial court judge applied it to dismiss design
defect claims against respirator manufacturers in a Bloomberg BNA
Product Safety & Liability Reporter article.
Category liability arises when there is no true reasonable alternative
design for a lawful product. For example, it is inappropriate to compare
the safety of a convertible with an open roof design to a car with a solid
roof design. Roller skates should not be compared to rollerblades. Bicycles
and motorcycles should not be compared to tricycles and scooters.
In the Mississippi litigation, plaintiffs presented elastomeric respirators
(sealed to face with inhalation/exhalation valves, cleaned and reused) as
a safer alternative to disposable respirators (known as N-95s). A perceptive
trial court judge applied category liability principles to preclude
this comparison. In Mealer v. 3M Co. (and a similar case, Harris v. 3M
Co.), Judge Dal Williamson (Jones County) found that the two types
of respirators are “completely different products.” While the products
serve the same general purpose, the court concluded that the alternative
presented by the plaintiffs would have eliminated the core features of the
type of respirator at issue—its single-use and disposable qualities. ‘‘The
law of products liability demands that manufacturers take feasible steps
to make their products reasonably safe,’’ Judge Williamson observed. ‘‘It
is not rational, however, to impose liability in such a way as to eliminate
whole categories of useful products from the market.’’
The Mississippi court’s rulings show the viability of the category liability
doctrine and its application to a wide range of contexts. While the riskutility
test followed in many jurisdictions implicitly considers the factors
underlying the category liability doctrine, this doctrine provides a distinct
defense. As the reporters of the Restatement Third of Products Liability
have observed, courts avoid category liability “like the plague.”
Issue 590
