The Connecticut Supreme Court, in Bifolck v. Philip Morris, Inc., recently made what the Court termed “modest refinements” to Connecticut’s product liability law. Case No. SC 19310 (Conn. Dec. 29, 2016). To recover under Connecticut’s Product Liability Act, a plaintiff alleging a product was defectively designed, defectively manufactured, or defective for a failure to warn must prove:
A.) The defendant was engaged in the business of selling the product;
B.) The product was in a defective condition unreasonably dangerous to the consumer or user;
C.) The defect caused the plaintiff’s injury;
D.) The defect existed when the product was sold; and
E.) The product reached the consumer without substantial change in its condition.
Bifolck clarified how a plaintiff must prove the second element – the product was in a defective condition unreasonably dangerous to the consumer – when the plaintiff contends the product was defectively designed.
Bifolck held Connecticut’s primary test for determining whether a product is defectively designed is the “risk-utility test.” Under the risk-utility test, a plaintiff must show: 1.) A reasonable alternative design was available that would have avoided or reduced the product’s harm; and/or 2.) The product’s risk of harm so clearly exceeds the product’s utility that a reasonable consumer would not buy the product. The Court explained “these theories are not mutually exclusive,” and noted it would be “helpful” for a plaintiff to allege whether it intends to pursue prong one, prong two, or both prongs one and two of the risk-utility test. Bifolck also acknowledged a plaintiff can establish the second element of a product liability claim by showing the product failed to meet “legitimate, commonly held, minimum safety expectations,” known as the consumer expectation test.
Subrogated carriers pursuing design defect claims in Connecticut must be immediately mindful of two implications of Bifolck. First, while not yet required, there is a clear preference for a plaintiff to plead which prong(s) of the risk-utility test the plaintiff believes is most applicable to its claims. Carriers should draft pleadings accordingly. Second, carriers must work closely with experts to make certain the evidence and testimony presented at trial fits into Connecticut’s more clearly defined risk-utility test.