AMI 1009 Products Liability—Issues—Defenses—Unavoidably Unsafe Products

Use this instruction, when appropriate, immediately following AMI 1008 or AMI 1013.

Use the bracketed clause in proposition “Second” when the court finds that the intended use of the product comes within the learned intermediary doctrine.

Do not use the final bracketed portion of this instruction if the case is submitted on interrogatories.

This instruction should be used when the trial court determines that reasonable minds could differ whether Comment k of the Restatement (Second) of Torts§ 402A is applicable. The defense articulated in Comment k was adopted in West v. Searle & Co., 305 Ark. 33, 806 S.W.2d 608 (1991), appeal after remand, 317 Ark. 525, 879 S.W.2d 412 (1994). This defense is applicable only where the product defect is predicated upon its design. It does not provide a defense against claims based on manufacturing defects or inadequate warnings. Id.

This instruction is appropriate only in cases involving a narrow range of products which are unavoidably unsafe. For further definition and examples of “unavoidably unsafe” products, see Annotation, “Products Liability: What is an ‘Unavoidably Unsafe’ Product,” 70 A.L.R.4th 16 (1989).

The fourth element is based on West, supra, 305 Ark. at 40, 805 S.W.2d at 612–13. There the court stated that for Comment k “to protect the designer of the product, the benefit of the product must outweigh the risk. This weighing process must consider the value of the benefit, the seriousness of the risk, and the likelihood of both.” See also Toner v. Lederle Laboratories, 112 Idaho 328, 337, 732 P.2d 297, 305 (1987) (same, cited with approval in West).

The Arkansas Supreme Court in West rejected the approach of a small minority of jurisdictions that extend Comment k protection to all pharmaceuticals. 305 Ark. at 40–41, 806 S.W.2d at 612–13. A majority take a case-by-case approach. See also Freeman v. Hoffman-La Roche, Inc., 260 Neb. 552, 560–63, 618 N.W.2d 827, 836–38 (2000) (discussing different approaches and overruling precedent to adopt majority rule).

West v. Searle, supra, did not explicitly state whether the application of Comment k is a matter for the court or the jury. The court in Toner v. Lederle Laboratories, 112 Idaho 328, 339 n.9, 732 P.2d 297, 308 n.9 (1987) (citations omitted), a decision relied upon heavily for other points in West, notes that “[s]ome courts and commentators, emphasizing the factual determinations necessary, leave it to the jury …. Others, concerned with the policy implications of the decision, would have the court decide comment k's application as a matter of law.” See generally Victor E. Schwartz, Unavoidably Unsafe Products: Clarifying the Meaning and Policy Behind Comment k, 42 Wash. & Lee L. Rev. 1139, 147–48 (1985) (arguing that, because the basic questions raised by Comment k are not “what occurred at a particular time or who did what to whom” but instead “are questions of law and policy,” Comment k's application ought to be determined by courts rather than juries). A third approach seems to recognize that reasonable minds could not disagree that some products, such as the rabies vaccine, Castrignanao v. E.R. Squibb & Sons, Inc., 546 A.2d 775, 781–82 (R.I. 1988) (noting division), or the Sabin oral polio vaccine, Johnson v. American Cyanamid Co., 239 Kan. 279, 285–86, 718 P.2d 1318, 1323–24 (1986), merit Comment k protection and so the court will recognize it as a matter of law. Castrignanao went on to say, however, that if “a trial judge finds that an application of the risk-benefit anaylsis allows reasonable minds to differ in their conclusions, then the trial judge should submit the issue to the trier of fact.” 546 A.2d at 782.