Aaron D. Twerski

Product Liability and the Technical Expert

The refinement of the product liability litigation process requires a continuing substantive dialogue between the legal and technical communities. The common problem-solving orientation of the two disciplines bodes well for such interaction. We have shared in the exciting beginnings of this legaltechnical interaction (7) and hope that in the field of product liability such joint efforts will lead to a more sophisticated and technologically sound litigation process, one in which the technologist can be true to himself while operating within a strong and responsive adversary system.

Consumer Expectations’ Last Hope : A Response to Professor Kysar

The authors agree with Professor Kysar that the current version of the consumer expectations test for design defectiveness is an amorphous, unprincipled misreading of section 402A of the Restatement (Second) of Torts. And they agree that most courts apply risk-utility balancing in determining design defectiveness. But they disagree with Kysars proposal to supplement risk-utility balancing with a reinvigorated consumer expectations test based on expert testimony regarding what consumers actually expect in the way of design safety. Judicial reliance on such testimony would be susceptible to result-oriented manipulation by litigants, would not guide manufacturers in making sensible design choices, would pressure courts to exceed the limits of their institutional competence, and would undermine the new Restatements commitment to making products safer. In the final analysis, Professor Kysars suggested approach to design liability rests on an unworkable premise, implicit in his article, that the authors reject-that enterprise liability is a worthy, attainable goal toward which courts should strive.