Category Liability Doctrine Bars Certain Design Defect Claims

In the law of product liability, lawyers representing manufacturers have underutilized the broad prohibition on “category liability.” In an article in Bloomberg BNA’s Product Safety & Liability Reporter titled "Category Liability: Properly Precluding Claims That Propose an Alternative Product Rather Than an Alternative Design," Shook, Hardy & Bacon Public Policy Partners Victor Schwartz and Cary Silverman explain this doctrine and show how a Mississippi trial court judge applied it to dismiss design defect claims against respirator manufacturers.

Category liability arises when there is no true reasonable alternative design for a lawful product. For example, it is inappropriate to compare the safety of a convertible with an open roof design to a car with a solid roof design. Roller skates should not be compared to rollerblades. Bicycles and motorcycles should not be compared to tricycles and scooters.

In the Mississippi litigation, plaintiffs presented elastomeric respirators (sealed to face with inhalation/exhalation valves, cleaned and reused) as a safer alternative to disposable respirators (known as N-95s). A perceptive trial court judge applied category liability principles to preclude this comparison. In Mealer v. 3M Co. (and a similar case, Harris v. 3M Co.), Jones County, Mississippi, Circuit Court Judge Dal Williamson found that the two types of respirators are “completely different products.” While the products serve the same general purpose, the court found that the alternative presented by the plaintiffs would have eliminated the core features of the type of respirator at issue—its single-use and disposable qualities. ‘‘The law of products liability demands that manufacturers take feasible steps to make their products reasonably safe,’’ Judge Williamson observed. ‘‘It is not rational, however, to impose liability in such a way as to eliminate whole categories of useful products from the market.’’

The Mississippi court’s rulings show the viability of the category liability doctrine and its application to a wide range of contexts. While the risk-utility test followed in many jurisdictions implicitly considers the factors underlying the category liability doctrine, this doctrine provides a distinct defense. As the reporters of the Restatement Third of Products Liability have observed, courts avoid category liability “like the plague.”