Establishing a Feasible Alternative Design: The Sixth Circuit’s Approach to the Burden of Proof

Blog Post | 111 KY. L. J. ONLINE | March 6, 2023

Establishing a Feasible Alternative Design: The Sixth Circuit’s Approach to the Burden of Proof

By: Kaylee Secor, Staff Editor, Vol. 111

To determine whether a product is defectively designed, the existence of a feasible alternative design that could have reduced or prevented the plaintiff’s harm may aid the court in a defective determination.[1] The more feasible the alternative is, either economically or scientifically, the more likely the court will find the product to be defectively designed.[2] Some courts have decided that, in a design defect action, the plaintiff has the burden of proving that a feasible alternative design exists.[3] Establishing proof of a feasible alternative design puts an unreasonable burden on plaintiffs which requires them to provide evidence that is usually within the knowledge of manufacturer.[4]

The Sixth Circuit has determined that the burden is on the plaintiff to establish a feasible alternative design.[5] Just recently, the Sixth Circuit reaffirmed the plaintiff’s burden by rejecting a feasible alternative design theory provided by the plaintiff in Maxwell v. FCA U.S., LLC.[6] In Maxwell, Robert Maxwell was driving a Chrysler minivan when he was involved in a fatal crash.[7] Photographs of the vehicle revealed that the ignition had “no key in place” but was found in the “Accessory” position.[8] Testimony at a deposition revealed that the missing key fob was found under the driver’s seat.[9]

Maxwell’s daughter and other family members brought a suit against FCA, the minivan’s manufacturer, alleging product liability based on defective design and multiple other claims.[10] Plaintiffs provided expert testimony stating that “the fob ‘may’ have dislodged during the crash or that the ignition and fob ‘may’ have malfunctioned while Robert was driving, causing the crash.”[11] The district court granted summary judgment to FCA, reasoning that the plaintiffs failed to provide evidence as to the “feasible alternative design” requirement.[12] The plaintiffs appealed to the Sixth Circuit.[13]

On appeal, the plaintiffs argued that a feasible alternative design would be “a traditional key and ignition set up” as compared to the key fob.[14] According to the Sixth Circuit, the plaintiffs “adduced no evidence —only argument—that a traditional key-and-ignition design would have been safer than the system in the vehicle.”[15] The Court determined that “argument is not evidence” and that the district court correctly concluded that there was no evidence that a feasible alternative existed at the time the vehicle was sold.[16]

The plaintiffs’ attorney found the burden of proof on the plaintiffs difficult to overcome.[17] He claimed that “the party that doesn’t have the information, has the burden of proving the information.”[18] It seems that the burden on the plaintiff to prove a feasible alternative design may be more than they are able to bear. Even if the plaintiff can get expert testimony to prove that a feasible alternative design exists, the testimony still may not be enough to show that the product was defectively designed. Therefore, the feasible alternative design requirement is unfriendly to plaintiffs making it harder for them to recover from injuries caused by a defective product.

The Sixth Circuit should instead adopt a more plaintiff friendly alternative to relieve plaintiffs of the burden that the feasible alternative design requirement creates. Many courts take the view that existence of a feasible alternative design is not an essential element of proof for a design defect claim but can be a relevant consideration in determining whether the product is unreasonably dangerous.[19] The Supreme Court of California, in Barker v. Lull Engineering Co., concluded that “once a plaintiff makes a prima facie showing that the injury was proximately caused by the product’s design, the burden should appropriately shift to the defendant to prove, in light of the relevant factors, that the product is not defective.”[20] In other words, once the plaintiff makes a showing that the defective product caused their injuries, the burden shifts to the defendant to show that the product is not defective by proving the nonexistence of a feasible alternative design.

[1] Burden of Proving Feasibility of Alternative Safe Design in Products Liability Action Based on Defective Designs, 78 A.L.R.4th 154; Restatement (Third) of Torts: Prod. Liab. § 2(b) (1998).

[2] Id.

[3] Id.

[4] Rahmig v. Mosley Mach. Co., Inc., 412 N.W.2d 56, 81 (Neb. 1987).

[5] Peck v. Bridgeport Machines, Inc., 237 F.3d 614, 617–18 (6th Cir. 2001) (“[T]he plaintiff must produce evidence showing: . . . (3) that there was a reasonable alternative design available (4) that the available alternative design was practicable; (5) that the available and practicable reasonable alternative design would have reduced the foreseeable risk of harm posed by defendant's product; and (6) that omission of the available and practicable reasonable alternative design rendered defendant's product not reasonably safe.”).

[6] Maxwell v. FCA U.S., LLC, No. 22-1356, 2023 WL 246836, at *3 (6th Cir. Jan 18, 2023).

[7] Id. at *1.

[8] Id.

[9] Id.

[10] Id.

[11] Id.

[12] Id. at *2.

[13] Id.

[14] Id. at *3.

[15] Id.

[16] Id.

[17] Riley Brennan, 6th Circuit Rejects ‘Safer Design’ Theory in Chrysler Products Suit, Broward Daily Bus. Rev., Jan. 25, 2023, at A6.

[18] Id.

[19] Burden of Proving Feasibility of Alternative Safe Design in Products Liability Action Based on Defective Designs, 78 A.L.R.4th 154 (providing many examples of courts who do not require proof of a feasible alternative design).

[20] Barker v. Lull Eng’g Co., Inc., 573 P.2d 443, 455 (Cal. 1978).