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PRODUCT LIABILITY/SAFER ALTERNATIVE DESIGN - HOSFORD V. BRK BRANDS, INC.

Hosford v. BRK Brands, Inc., [Ms. 1140899, 1140901, Aug. 19, 2016] __ So. 3d __ (Ala. 2016). Parker, Shaw, Wise, and Bryan, JJ., concur. In these consolidated appeals, the Supreme Court affirms judgments in favor of the manufacturer of two ionization smoke alarms alleged to be defective and unreasonably dangerous when they failed to provide adequate warning time for a minor child to escape from a burning mobile home, resulting in the child's death. Because the plaintiffs failed to present substantial evidence of a safer alternative design as required for AEMLD claims by General Motors Corp. v. Jernigan, 883 So. 2d 646, 662 (Ala. 2003), the judgments are due to be affirmed.

The opinion frames the issue this way:

In order to survive [the manufacturer's] motion for a judgment as a matter of law at the close of her case, [mother] was required to put forth substantial evidence identifying a safer, practical, alternative design [manufacturer] could have used for the ionization smoke alarms purchased by [father]; that is, [mother] had to present substantial evidence indicating that the proposed alternative design would have resulted in [child's] escaping from the fire and substantial evidence indicating that the utility of the proposed alternative design outweighed the utility of the design actually used by [manufacturer].

Ms. *10-11. The Court rejects plaintiffs' evidence of safer alternative design consisting of another type of smoke alarm manufactured by the defendant, which used photoelectric technology in addition to ionization technology (i.e., dual sensor smoke alarms), holding that the two are entirely different products. The Court instead construes the safer alternative design requirement of the AEMLD to require proof of a "safer, practical, alternative design for an ionization smoke alarm." Ms. *12. Embracing the reasoning of an unpublished federal decision cited by the manufacturer, Hines v. Wyeth (No. CIV. A 2:04-0690, May 23, 2011)(S.D. W. Va. 2011)(not reported in F. Supp.), the Court holds as a matter of law that the proposed alternative design cannot be a different product.

The Court borrows by analogy from the Prempro/Premarin decision of the Texas Court of Appeals in Brockert v. Wyeth Pharmaceuticals, Inc., 287 S.W. 3d 760 (Tex. App. 2009) which noted that Premarin (estrogen) was not an "alternative design" for Prempro, but rather was "a different drug entirely." Ms. *15. The Court explained:

Thus, even though Prempro, the allegedly defective product, and Premarin, the proposed alternative product, had essentially the same purpose – to treat menopausal symptoms – the Brockert court held as a matter of law that one was not a safer alternative to the other because they were different products. [Mother's] position in this case is effectively the same as that of the appellant in Brockert – both argued that a product was defective and, as evidence of that fact, identified as a safer alternative another product manufactured by the same manufacturer that allegedly had sold the defective product. Consistent with the rationale of the Brockert court, we now hold as a matter of law that the dual sensor smoke-alarm design put forth by [mother] is not, in fact, a safer, practical, alternative design to an ionization smoke alarm; rather, it is a design for a different product altogether.

Ms. *18. The Court therefore affirms the judgments in favor of the manufacturer, holding

... because a plaintiff asserting an AEMLD claim cannot prevail in the absence of evidence establishing the existence of a safer, practical, alternative design for the allegedly defective product – not a design for a different, albeit similar, product, even if it serves the same purpose – the judgment entered in favor of [the manufacturer] on [mother's] AEMLD claim is affirmed.

Ms. *21.

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