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STATE-OF-THE-ART: WHOSE ART; WHAT WAS KNOWN; AND WHEN?

By: William A. Dreier and Steven A. Karg
November 2000

The state-of-the-art defense is firmly embedded in the law of most states. The defense is a simple one. It absolves a manufacturer from liability for producing a product with safety elements or warnings concerning the product if the safety elements or bases for the warnings could not reasonably have been known at the time the product was manufactured. New Jersey originally experimented with the idea that a manufacturer was obligated to warn about matters that could not have been known at the time of manufacture. See Beshada v. Johns Manville Prods. Corp., 90 N.J. 191 (1982). The Supreme Court, however, quickly backed away from this position in O’Brien v. Muskin Corp., 94 N.J. 169 (1983) and Feldman v. Lederle Labs, 97 N.J. 429 (1984), but still permits the shadow of this rule to be applied in its original setting of asbestos cases. Four states, however, did not follow New Jersey on the road back from the rejection of the state-of-the-art defense. Five initially followed Beshada, but Massachusetts overruled the doctrine in 1998, leaving only Hawaii, Washington and Montana and possibly Pennsylvania as states in which a manufacturer must warn or construct to a standard that could not have been known at the time.

To understand the state-of-the-art defense, one must distinguish it from the usual claim avoidance by a defendant, namely, that although the alternative product suggested by the plaintiff was feasible, it (1) could not have solved the problem, (2) would have presented other dangers and thus was not a viable alternative, (3) would have cost so much as to price the product out of its relevant market, and (4) would have been so bulky, heavy, or aesthetically unpleasing that it would no longer be readily marketable. There are, of course, other factors to attack a plaintiff’s proposed alternative design, and many of these are discussed in detail in the Restatement (Third) of Torts: Products Liability, Comment f to §2(b). In fact, the concept of state-of-the-art is not separately included as a defense in the Restatement because it is subsumed within the test for a design defect in §2(b), namely, that the manufacturer failed to adopt “a reasonable alternative design…the omission of [which] renders the product not reasonably safe.” Warnings likewise must be “reasonable” under §2(c). By definition, if a manufacturer is expected to provide an alternative design or even a warning that is “reasonable,” it cannot be required to have included a design or warning that could not have been provided at the time the product was distributed.

New Jersey has maintained the state-of-the-art defense as a separate consideration because it is mandated by N.J.S.A. 2A:58C-3a(1). In a recent decision, Cavanaugh v. Skil Corp., 164 N.J. 1 (2000), Justice Verniero noted that the usual defenses to a product liability complaint, such as those described in Comment f to §2(b) of the Restatement, deal with the practicality of the design. On the other hand, the state-of-the-art defense mandated by the New Jersey statute looks at the added element of feasibility. Practicality deals with whether the manufacturer should have constructed the product one way or another because of the various factors noted earlier. Feasibility looks at whether a manufacturer was able to make the product due to the existing scientific or technological advances at the time the product was manufactured.

Under the Restatement view, this would be a distinction without a difference. But, because of the New Jersey statute and because Feldman v. Lederle Labs, supra, shifted the burden of proof to the defendant to prove the state-of-the-art at the time of manufacture, we must still draw the distinction between state-of-the-art and the general refutation of a plaintiff’s claim. The plaintiff must prove that his or her alternative design, or the risk utility balancing of the proposed design against that of the defendant manufacturer, was more practical. But, if state-of-the-art is raised, the defendant must come forward and show that the proposed design was not feasible.