As the calendar turns from August to September, it is time once again to concede the strength of the Southeastern Conference. You probably think we are referring to college football or basketball, in which teams from Alabama, Arkansas, Florida, Georgia, Kentucky, Louisiana, Mississippi, Missouri, South Carolina, Tennessee, and Texas prevail with grinding monotony. [We have a feeling that OJ’s old college squad, USC, will have an ugly time of it against Alabama in the ostensibly neutral site of Jerry World this weekend.] But, no, we are talking about product liability law. [For the moment, we are pretending that the Weeks innovator liability abomination in Alabama never happened. Moreover, the Alabama legislature eventually cleaned up that mess.] Today we are focusing on the safer alternative requirement in design defect cases. It occurs to us that some very good cases on this issue come out of the SEC. In the beginning of the year, we discussed a Mississippi case, Mealer v. 3M, where the court dismissed a case on the ground that an elastomeric respirator was not a safer alternative to a cheap paper respirator mask. They were two entirely different products, fundamentally different in terms of operation, longevity, and expense. Consumers might have all sorts of important reasons, aside from safety, to choose one over the other.

[Readers who are especially nerdy or possess especially good memories might point out that in July we bemoaned a Louisiana opinion permitting a plaintiff to suggest that other drugs could constitute a safer alternative to the drug at issue. To our mind, different drugs, which consist of different molecules with entirely different risk-benefit profiles, are separate products and cannot be treated as a safer alternative that can shame other drugs out of existence. Under the plaintiff’s (and, unfortunately, the Louisiana court’s) theory, jury verdicts might drive all drugs that treat, say, diabetes, out of the market except one. And even that one would not be safe from attack. Or, to veer away from drugs and devices, we might as well shut down Harley-Davidson, since motorcycles are less safe than other modes of motorized transportation. Live to ride, ride to live? Not anymore. But don’t worry too much. You can still sing “Born to be Wild” on your Hydra Glide. The recent Louisiana error stands as an aberration. As Bexis pointed out in a magnum opus blogpost that strolled down bone screw memory lane back in 2013, Louisiana has quite a lot of good safer alternative decisions.]

Today’s case, Hosford v. BRK Brands, Inc., 2016 Ala. LEXIS 91 (Ala. August 19, 2016), sees the Alabama Supreme Court apply an even stricter test in pouring out a plaintiffs’ case on the ground that the proposed safer alternative was a separate product altogether. The facts of Hosford are grim. A four-year-old girl died in a fire that destroyed her family’s mobile home in May 2011. The fire began in a faulty electrical outlet in the girl’s bedroom. Her family sued the manufacturer of the smoke alarms in their mobile home. The theory was that the smoke alarms were defectively designed because they relied solely on ionization technology which, the plaintiffs alleged, failed to give adequate warning to allow an escape in the event of a slow smoldering fire. There are dual sensor smoke alarms on the market that employ both ionization and photoelectric technology. According to the plaintiffs, such alarms would have roused the family in time to save the little girl. After the plaintiffs presented their case at trial, the defendant moved for judgment as a matter of law. The trial court mostly granted that motion, and only one claim went to the jury. The jury ultimately returned a verdict in favor of the defendant.

The key issue on appeal in Hosford was whether the plaintiffs should have been permitted to tell the jury that a dual sensor smoke alarm was a safer alternative to the ionization alarm. The plaintiffs argued that it was, and that the issue at the very least was a factual one for the jury. But was the dispute on this point factual or philosophical – which is to say, legal? It appears to be undisputed that smoke alarms using photoelectric technology are generally more sensitive to smoke originating from smoldering fires. Then again, photoelectric technology is, in turn, generally considered to be less sensitive to smoke coming from flaming fires. The plaintiffs argued that a safer, practical, alternative to an ionization smoke alarm is a dual-sensor smoke alarm incorporating both ionization and photoelectric technology. Guess what? The defendant actually manufactures and sells such dual-sensor smoke alarms. Not surprisingly, those dual sensor alarms are generally more expensive than alarms relying solely on one technology.

The Hosford plaintiffs argued that “the fundamental purpose of any residential smoke alarm – regardless of the technology it is based on – is to detect smoke and to provide a warning so that occupants of the residence can escape safely and that any residential smoke alarm can reasonably be considered an alternative to another, regardless of the specific technology used to detect that smoke.” We’d be lying if we asserted that this is an easy issue. As we were taught way back in law school, it is time to start reasoning by analogy. That is what the Hosford court did. For one thing, it went through the motorcycle-car example we mentioned above. Motorcycles and cars are simply different products, even if they perform essentially the same function. The Hosford court also cited Brockert v. Wyeth Pharmaceuticals, Inc., 287 S.W. 3d 760 (Tex. App. 2009), a hormone replacement case. Even though Prempro, the allegedly defective product, and Premarin, the proposed alternative product, had essentially the same purpose – to treat menopausal symptoms – the Texas court held as a matter of law that one was not a safer alternative to the other because they were different products. The Hosford court was persuaded by the reasoning in Brockert, and therefore held as a matter of law that the dual-sensor smoke-alarm design put forth by the plaintiffs is not, in fact, a safer, practical, alternative design to an ionization smoke alarm; rather, it is a design for a different product altogether.

The Hosford court was plainly concerned that the plaintiffs’ position had no logical stopping point. Entire categories of products would be at risk. Consumer choice would be squashed. Forget about motorcycles, would it be possible to justify selling convertibles or sports cars when Volvo wagons sit smugly on car lots with lots of safety features and extra metal between the driver and the opposition? If plaintiffs can insist on the safest possible product, no matter the cost, people might end up using fewer of the products. The Hosford court pointed out that the increased expense of the dual sensor smoke alarm might have resulted in installation of fewer, or even no, alarms at all. More members of the family might have perished. These are extraordinarily difficult calculations, if they can even be called calculations.

Maybe plaintiffs need to get more clever and think about how markets are defined in antitrust cases. A plaintiff might argue that products in the same market can act as alternatives for each other. If the market is Buicks, it is easy to monopolize that market. Buick does a pretty good job of that. If the market is cars, we are talking about something else. If the market is transportation, we are really talking about something else. Courts usually resolve the market definition issue by looking at cross-elasticities. Can slight price rises in one product send consumers to alternatives? If yes, we are in the same market. If not, we are not. A Buick SUV is probably in the same market as a Chevy SUV or Honda SUV. So they can be construed as alternatives to each other. (But what about a Range Rover?) Of course, product liability involves different considerations from antitrust law. But at least antitrust law has some rigor and concreteness. Product liability law is packed with way more emotion. Injuries and deaths impact jurors more than price gouging. Further, people choose products that are less safe for all sorts of reasons, including cost, jingling neurons, a doctor’s bed side manner, and a million other reasons. The Hosford court wrestled with a difficult issue in a difficult case and probably did as well as it could do. At the very least, the decision offers a powerful analogy for future defendants arguing that a plaintiff’s failure to suggest a safer alternative design should spell the end of design defect claim.