Perhaps not as menacing as Lions and Tigers and Bears (Oh my) – but feasible, adequate, and effective proved to be too much for plaintiff in Davis v. Johnson & Johnson, 2022 WL 2115075 (Jun. 9, 2022).

It is a remanded pelvic mesh case. On defendant’s motion to exclude certain testimony by plaintiff’s expert, most of the court’s rulings were wait and see at trial with some admonitions that plaintiff’s expert should not stray from his reports or attempt to introduce evidence that was excluded by the MDL court. But, on the question of whether plaintiff’s expert could offer his “alternative design” theories, the court squashed that testimony like a house landed on it.

Kansas follows a “consumer expectation” test for design defect. That means, a plaintiff must show that a product is both defective and dangerous “to an extent beyond that which would be contemplated by the ordinary consumer” with ordinary knowledge. Id. at *3. Evidence of an alternative design is not required by Kansas’s consumer expectation test. However, if plaintiff seeks to introduce evidence of an alternative design, that evidence must show “that the alternative design is feasible, adequate, and effective.” Id. at *2.

Defendant’s first argument as to all of plaintiff’s expert’s offered alternative designs was that they were ipse dixit given the lack of support in his report. In plaintiff’s expert’s opinion, plaintiff’s injuries were caused by the use of polypropylene mesh. Therefore, he leaps to the conclusion that alternatives that do not use polypropylene are safer. Id. It does not follow, absent any explanation, that other products without polypropylene are feasible, adequate or effective alternative designs. Due the analytical gap, plaintiff’s expert’s alternative design testimony was excluded.

But the court did not stop there. Plaintiff’s expert’s first alternative design was actually an alternative procedure – native tissue repair. The court cited numerous other decisions rejecting alternative procedures as alternative designs to the product at issue. Id. at *3. Plaintiff argued those cases were inapposite because alternative treatment evidence was part of the consumer expectations analysis. Not so in Kansas where the Kansas Supreme Court has said that “a guide” in consumer expectations cases may be to look at, among other things, “the mechanical feasibility of a safer alternative design, not alternative treatments or products.” Id. The court went on to say that evidence of alternative procedures is of “dubious relevance” to a design-defect claim. Id. But, it left the door every so slightly ajar if plaintiff could first establish relevance in some way. About as likely as a talking scarecrow without a brain.

Finally, plaintiff’s expert offered as an alternative a product made of PVDF. PVDF, however, was not approved in the United States at the time of plaintiff’s surgery. Id. at *4. Plaintiff attempted to rely on the fact that PVDF existed at the time, but lack of FDA clearance was a bar to feasibility and therefore a bar to its use as evidence of an alternative design. Id. at *4-5.

Plaintiff may wish she wasn’t in Kansas anymore, but that’s where she is and that means no admissible evidence on alternative design.

This article was written by Michelle Yeary  of Dechert LLP.