Fifth Circuit Clears a Path for Pursuing Design Defect Claims without the Defective Product


A recent 5th Circuit Court of Appeals case held that spoliation of evidence may not necessarily be fatal to a product liability claim. The case, A.K.W. v. Easton-Bell Sports, Incorporated, et. al, 11-60293 (October 18, 2011) stemmed from a head injury to a minor, “A.K.W.”, that occurred during football practice while A.K.W. was wearing a helmet manufactured by Defendant Ridell. On the final play of practice, A.K.W. stepped up to tackle the opposing quarterback and was joined in that tackle by two additional defenders. All of the players involved in the tackle landed on top of A.K.W.; his head was the first to hit the ground. Shortly after practice, A.K.W.’s right eye blurred and he collapsed on the field.  His coaches removed the helmet, which was later lost. A.K.W. was subsequently diagnosed with a carotid artery tear that rendered him partially paralyzed.

A.K.W., through his mother, filed suit against various manufacturers of football helmets in Mississippi State Court claiming that his helmet was defectively designed due to the padding. The matter was removed to Federal Court which applied Mississippi substantive law including the Mississippi Products Liability Act (MPLA). The MPLA sets out three elements for a defective design claim: (1) the product was defectively designed; (2) the design defect made the product “unreasonably dangerous”; and (3) the design defect caused the injury. Mississippi common law further requires that plaintiffs prove that at the time of the injury, the product was in substantially the same condition as when it left the defendant’s control.

A.K.W. was unable to produce the helmet he was wearing at the time of the injury.  He testified that he was wearing a Riddell helmet at the time; however, there were four (4) different types of Riddell helmets in use by the team. Ridell filed a motion for summary judgment contending that A.K.W. was unable to prove that the helmet he was wearing was in substantially the same condition as when it left the defendant’s control. A.K.W.’s expert assumed that the football helmet was in perfect condition as if it just left the defendant’s control. The expert opined that all four types of Riddell helmets were defective per se upon leaving the manufacturer. Plaintiff argued that since the comparison product for the feasible design alternative is not the exact, individual product involved in the injury, proof as to substantial similarity is unnecessary. The appellate court reversed the trial court’s grant of summary judgment, holding that because the opinion of A.K.W.’s expert was not based on the actual helmet, there was no need for A.K.W. to have produced the actual helmet. Where an expert opinion about defect is based upon a perfect condition product that is straight from the manufacturer, and that opinion applies to all potential products that could have caused the injury, there is no requirement to produce the actual product that caused the injury.

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