1. Explain the elements one would have to prove to bring a successful product liability case based on negligence, and identify the available defense. 2. Why would a defendant prefer to be found to have produced a product that was defectively manufactured rather than defectively designed? 3. Explain the defenses available in a case based on a theory of strict product liability. 4. The plaintiff suffered a carotid artery tear that left him partially paralyzed after being tackled during a high school football scrimmage. While he was on the field, his coaches removed his helmet, which was then lost. The plaintiffs mother filed suit against the helmet manufacturers, alleging that the helmets liner and foam padding were defectively designed. The district court granted summary judgment to the defendants because the plaintiff could not produce the specific helmet at issue and thus could not prove the helmet was defective. The plaintiff appealed, arguing that the fact that she could not produce the specific helmet was irrelevant as she was arguing that all of the helmets were defective due to their design. Do you think the appellate court agreed that the specific helmet need not be produced? [A.K.W. v. Easton-Bell Sports, Inc., et al., No. 11-60293, 2011 U.S. App. LEXIS 21108 (5th Cir. 2011).] 5. In Rutherford (1997), the California Supreme Court addressed the burden on a plaintiff in an asbestosrelated cancer case to prove that the defendants product was a legal cause of the plaintiffs (or the plaintiffs decedents) injuries. The Supreme Court held that such a plaintiff may prove causation . . . by demonstrating that the plaintiffs exposure to defendants asbestos-containing product in reasonable medical probability was a substantial factor in contributing to the aggregate dose of asbestos the plaintiff or decedent inhaled or ingested, and hence to the risk of developing asbestos-related cancer. To meet this burden, many plaintiffs in asbestos cases (including the plaintiff in Rutherford) present testimony from medical experts who espouse the theory that exposure to even low doses of asbestos contributes to the development of mesothelioma, an asbestos-related cancer. . . . [Plaintiffs expert opined that each exposure, even a relatively small one, contributed to the occupational dose and hence to the risk of cancer, and therefore the plaintiffs exposure to Defendants product, even if very small, was a substantial factor in contributing to the risk of developing cancer]. In this case, the plaintiff, Ms. Davis, presented such expert testimony at trial in support of her claim that her fathers exposure to asbestos in Bendix brake linings that he used when performing brake jobs in the 1960s and 1970s was a substantial factor in contributing to his risk of developing mesothelioma. In this appeal from the judgment entered on a jury verdict in plaintiffs favor, defendant Honeywell International Inc. (Honeywell) contends that this opinion testimonywhich commonly is referred to as the every exposure, any exposure, or any fiber theoryshould have been excluded because it is speculative and devoid of evidentiary and logical support. QUESTIONS & PROBLEMS Final PDF to printer kub47899_ch10_246-271.indd270 10/01/18 04:15 PM 270 Part 1 The Legal Environment of Business Having reviewed much of the commentary and scientific literature cited in support of and against the every exposure theory, the appellate court concluded the theory is the subject of legitimate scientific debate. Because, in ruling on the admissibility of expert testimony, the trial court does not resolve scientific controversies we believe that processing the expert witness is a task for the jury. What would have had to have been true for the court to have decided in Honeywells favor? [Davis v Honeywell International, Inc. (Cal. App. 4th, 2016).]