California Federal Court Prevents Product Liability Plaintiff From Changing Case Theory On Eve Of Trial

While installing an industrial switchboard, a California worker sustained serious injuries and brought suit against the switchboard manufacturer alleging defective design.  Under California law, a tort claim for strict liability based on design defect can proceed under two theories:  the risk-benefit test, which asks whether the benefits of the challenged design outweigh the risk of danger inherent in the design, or the consumer expectations test, which asks whether the product performed as safely as an ordinary consumer would expect when used in an intended and reasonably foreseeable manner.

In this case, the plaintiff proceeded to trial under the risk benefit test theory but the court granted the defendant’s motion for judgment as a matter of law after the plaintiff rested his case.  The Ninth Circuit vacated the judgment and remanded for a new trial.  Before the first trial, the court had denied the plaintiff’s motion in limine to exclude evidence that the switchboard was approved by the Underwriters’ Laboratories and had complied with the National Electric Code.  Once the case was remanded, the plaintiff indicated he would proceed under the consumer expectation test theory.  The court granted the plaintiff’s renewed motion in limine because the introduction of industry customs or safety standards was reversible error when trying a case on a consumer expectation test theory.  Shortly before the second trial was going to commence, however, the defendant filed a brief arguing that the plaintiff’s case suffered from a fatal defect because it was required to have expert testimony to make out a prima facie case under the consumer expectation theory.

The court agreed, and also rejected the plaintiff’s last-minute request to change the theory of the case back to a risk benefit test theory given that the plaintiff could not satisfy the “manifest injustice” standard for changing the case theory on the eve of trial.  The court then allowed the defendant to file a summary judgment motion and granted that motion on the grounds that the plaintiff was required to have expert testimony to prove that the switchboard was defective.  Specifically, the court concluded that the switchboard was not a product about which the ordinary consumer could form expectations without the assistance of expert testimony.