Within the past few days, courts in Illinois have handed down two opinions quite favorable to product manufacturers. In one, the Seventh Circuit Court of Appeals held that, under Illinois law, "consumer expectations" were merely one aspect of the "unreasonably dangerous" standard for product liability cases and that expert testimony was required to address this standard. In the second, the Illinois Supreme Court clarified the standard of care in a product liability negligence case, confirmed the need for a risk-utility balancing test and overturned a jury verdict on what, historically, would have been considered a factual basis. Both cases offer glimmers of hope to product manufacturers in a jurisdiction that has traditionally been relatively hostile to them.
In Show v. Ford Motor Co., Nos. 10-2428 & 10-2637 (7th Cir. Sept. 19, 2011), the Seventh Circuit upheld summary judgment against plaintiffs who had failed to identify an expert witness on design defect. Plaintiffs argued that no expert testimony was necessary on a "consumer expectations" theory of defect. Quoting extensively from Illinois Supreme Court precedent, however, the Seventh Circuit held that "consumer expectations" are subsumed as a factor within the broader risk-utility test; that is, the "consumer expectations test" is not an independent theory of recovery. Because the risk-utility analysis indisputably requires expert testimony — complex engineering issues being beyond the ken of the average juror — so, too, does the consumer expectations analysis.
In Jablonski v. Ford Motor Co., No. 110096 (Ill. Sup. Ct. Sept. 22, 2011), the Illinois Supreme Court reversed a sizeable jury verdict against Ford — upheld on intermediate appeal — on a negligent design theory of liability. In doing so, the Court reaffirmed the pre-eminence of the "risk-utility test," even under a negligence theory of product liability. The Court also directed Illinois trial courts to conduct a preliminary examination of the risk-utility factors in order to determine whether plaintiffs' claims even merit jury consideration, bearing in mind that it is plaintiffs who carry the burden of proving that the risks inherent in the product's design outweigh its benefits.
Taken together, the Show and Jablonski decisions may provide manufacturers who sell products in Illinois with powerful weapons against overreaching plaintiffs' lawyers, hired gun experts and state trial courts historically less-than-friendly to manufacturer defendants