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Bucking a national trend in design defect cases, the Wisconsin Supreme Court upheld a jury’s finding that a brand of latex gloves was defectively designed, even though no one, including the manufacturer, was aware of latex-related health problems until years after the brand was put on the market. The manufacturer, Smith & Nephew AHP Inc. (S&N), will have to pay $1 million to Linda M. Green, a health care worker who contracted an allergy, asthma and other illnesses after using the gloves at her Milwaukee hospital job. Green v. Smith & Nephew AHP Inc., No. 98-2162. S&N had asked the court to hold it liable only for foreseeable risks. Instead, the court reaffirmed its “consumer-contemplation test,” which imposes liability if a product is “dangerous to an extent beyond that which would be contemplated by the ordinary consumer.” The court said that the manufacturer who creates a risk, however unwittingly, should bear the costs of a product’s side effects, not the consumer. According to the American Law Institute’s Restatement (Third) of Torts, a majority of courts now use the approach urged by S&N in design defect cases. Though not saying so itself, the court quoted scholars who criticized the Restatement as a “wish list from manufacturing America” and “a vehicle for social reform, rather than an objective snapshot of the state of the law.” With two judges dissenting, the court took the Restatement to task for blurring the distinction between negligence claims, where foreseeability is an issue, and strict products liability claims. The panel said the Restatement “sets the bar higher for recovery in strict products liability design defect cases than in comparable negligence cases” by requiring injured consumers to prove a “reasonable alternative design” was available to the manufacturer. Last month, California’s 4th District Court of Appeal ruled out the consumer-contemplation test in a latex-glove case, but not in all design-defect cases in Morson v. The Superior Court of San Diego. Seemingly sidestepping the foreseeability issue, the court said that expert opinion should be the benchmark, because the average consumer’s safety expectations are unlikely to be well informed. Determining whether manufacturers struck the right balance between reducing latex-related risks, on one hand, and making their gloves impermeable to HIV and other pathogens, on the other, would require an understanding of complex manufacturing processes and biological and chemical properties, the court said. For other products where safety expectations are more straightforward, such as “automobiles that explode while idling at a stoplight,” consumer contemplation could serve as the benchmark, the California court said. One difference between the two cases is that the California plaintiffs sued several manufacturers, while Green targeted one brand thought by experts to be more hazardous than competing products because it contained high levels of latex proteins and was powdered with cornstarch.

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