Many plaintiffs in pesticide injury lawsuits raise the state law claim of design defect. Plaintiffs typically raise design defect claims in products liability lawsuits when they believe that the very design of the product was the cause of their injuries. Plaintiffs in pesticide injury cases that bring design defect claims argue that the manufacturer’s design of the pesticide product rendered it too dangerous for use.

What is Design Defect?

Like the other claims described in this series, design defect is a civil tort based in state common law. In a products liability case, plaintiffs bring claims of design defect to challenge the design of the product itself. Specifically, plaintiffs raise design defect to argue that the design of the product is so defective, it renders the product unreasonably dangerous. Because the design of the product itself is the target of a design defect claim, it applies even if the product was manufactured correctly.

Although tort claims like design defect may not be formally codified in every state, legal scholars at the American Legal Institute have published a treaty known as the Restatement (Third) of Torts (“the Restatement”) that helps to clarify the principles and rules of tort law. The Restatement is not legally binding, but lawyers and judges may refer to it for an understanding of how courts treat certain legal claims and theories. According to the Restatement, courts have found that a product contains a design defect “when the foreseeable risks of harm posed by the product could have been reduced or avoided by the adoption of a reasonable alternative design […] and the omission of the reasonable alternative design renders the product not reasonably safe.” Restatement (Third) of Torts § 2(b). In other words, a design defect exists if it would have been possible to design the product in such a way that any likely risks would have been avoided.

To establish a claim of design defect, plaintiffs will generally need to show that the product posed a foreseeable risk of danger to consumers when used according to its intended purpose, and that there is an alternative design for the product that would have reduced or eliminated that risk. Additionally, plaintiffs will need to show that the hypothetical alternative design is safer than the original design; as economically feasible as the original design; as practical as the original design; and accomplishes the primary purpose of the original design. This approach is referred to as the “risk-utility test” because it balances the risk faced by users of the product against the overall usefulness of the product as it was originally designed, and the cost to make it safer.

Many plaintiffs in pesticide injury cases have filed their claims in California courts. In California, plaintiffs can argue design defect under two separate theories. Plaintiffs may either argue design defect under the risk-utility test, or the consumer expectation theory. According to the consumer expectation theory, a product’s design is defective if the product did not perform safely as an ordinary consumer would have expected. To prove this claim, a plaintiff must show that: the defendant manufactured the product; the product did not perform as safely as an ordinary consumer would have expected when used in a foreseeable way; the plaintiff was harmed; and the product’s failure to perform safely was a substantial cause of that harm. CACI No. 1203. While a plaintiff proceeding under the risk-utility test has the burden of showing that the product could be designed in a safer way while still accomplishing its intended purpose, a plaintiff proceeding under the consumer expectation theory only has to show that the product was not as safe as a reasonable person would have expected.

Design Defect Arguments in Pesticide Lawsuits

Plaintiffs in pesticide injury cases frequently raise claims of design defect. These claims have been brought under both the risk-utility test and the consumer expectation theory. The following is a look at how plaintiffs have argued design defect in some of the many pesticide injury lawsuits that have been filed.

In Carson v. Monsanto Co., No. 4:17-cv-00237 (S.D. Ga.), the plaintiff used the risk-utility test to argue that the defendant’s glyphosate-based Roundup products were defectively designed because it was foreseeable that exposure to the products could cause users to develop cancer, and an alternative design was available that would have reduced that risk. According to the plaintiff, at the time the defendant designed its Roundup products, the scientific knowledge available to the pesticide industry was such that it would have been possible for the defendant to develop a “less risky” design. The plaintiff also claimed that the hypothetical safer design would have been “technically feasible” and “practical” to use. Because the defendant chose to design a more dangerous product, the plaintiff claims that it is liable for design defect.

The plaintiff in Hoffman v. Syngenta Crop Protection, LLC, No. 17-L-517 (Ill. Cir. Ct.) also argued a design defect claim based on the risk-utility test. Very simply, the plaintiff claimed that the paraquat products manufactured by the defendant were defectively designed because the risks of using the products outweighed their utility. According to the plaintiff, the risk of developing Parkinson’s disease as a result of using paraquat is so dangerous that it outweighs any utility offered by the pesticide.

Many pesticide injury plaintiffs have also raised claims of design defect under the consumer expectation theory. These cases are all in California courts, and they include plaintiffs that have filed lawsuits over both glyphosate and chlorpyrifos. In Hardeman v. Monsanto Co., No. 4:16-cv-00525 (N.D. Cal.), one of the first cases to allege injury as the result of glyphosate use, the plaintiff argued that the defendant was liable for design defect because the product did not work as intended when used in a foreseeable manner. Specifically, the plaintiff in Hardeman v. Monsanto claimed that the defendant’s Roundup products were defectively designed because even when the products were manufactured appropriately and used as expected, they were still unreasonably dangerous for use. The class action plaintiffs in In re: Roundup Products Liability Litigation, No. 3:16-md-02741 (N.D. Cal.) made similar claims, arguing that when Roundup products “left the hands” of the defendants, they were unreasonably dangerous beyond what an ordinary consumer would expect. Plaintiffs in Avila v. Corteva Inc., No. 20C-0311 (Cal. Sup. Ct.), and Calderon de Cerda v. Corteva Inc., No. 20C-0250 (Cal. Sup. Ct.) claimed that the chlorpyrifos-based pesticide Lorsban was defectively designed because the active ingredient was more toxic to fetal and infant nervous systems than what the average consumer knew or expected.

Treatment by Courts

Like most of the other claims discussed in this series, the only design defect claims that have so far made it to trial have received varied results. The first three glyphosate lawsuits to go to trial, Hardeman v. Monsanto Co., Pilliod v. Monsanto Co., No. RG17862702 (Cal. Sup. Ct.), and Johnson v. Monsanto Co., No. CGC-16-550128 (Cal. Sup. Ct.), resulted in jury verdicts concluding that the defendant was liable for design defect. However, juries returned the opposite verdict in two other glyphosate lawsuits, Stephens v. Monsanto Co., No. CGC-20-585764 (Cal. Sup. Ct.), and Clark v. Monsanto Co., No. 20STCV46616 (Cal. Sup. Ct.). Because all five of the cases were filed in California courts, all five argued design defect based on the consumer expectation theory.

The defendant appealed the jury verdict in Pilliod v. Monsanto Co., arguing that the consumer expectation test should not have been applied to the plaintiffs’ design defect claim. In reviewing the defendant’s argument, the court noted that in California, the consumer expectations test for design defect is appropriate when “the everyday experience of the product’s users permits a conclusion that the product’s design violated minimum safety assumptions.” The defendant claimed that an ordinary user of its Roundup products could not have developed an expectation about whether the products could cause cancer based on everyday use because expert testimony was needed at trial to show how and why Roundup could cause cancer. The court disagreed, concluding that the consumer expectations test does not “require inquiry into how exposure to a particular level of a substance may lead to the development of cancer.” Instead, the test asks a jury to decide whether the manner in which the product failed could lead to a conclusion that the product’s design performed below the minimum safety assumptions of ordinary consumers. The court concluded that the plaintiff’s design defect claim had been appropriately raised.

Currently, none of the lawsuits involving cases of design defect based on the risk-utility test have gone to trial. It is unclear how courts and juries will treat these claims.

Conclusion

Unlike legal claims that argue the plaintiff was injured because the product was improperly manufactured or did not have adequate warnings, design defect claims allege that the way the product was designed means it will be dangerous no matter the circumstances. Plaintiffs in pesticide injury lawsuits are likely to continue raising design defect claims, even though reactions from juries have so far been mixed.

To read the complaint in Carson v. Monsanto Co., click here.

To read the complaint in Hardeman v. Monsanto Co., click here.

To read the complaint in In re: Roundup Products, click here.

To read the complaint in Avila v. Corteva Inc., click here.

To read the complaint in Calderon de Cerda v. Corteva Inc., click here.

To read the complaint in Hoffman v. Syngenta Crop Protection, LLC, click here.

To read the appellate court’s decision in Pilliod v. Monsanto Co., click here.

To read the previous post in this series, click here.

For more resources on pesticide regulation from the National Agricultural Law Center, click here.