The uncertainty surrounding "design" in design defect cases

All product liability attorneys know that in order to establish a prima facie design defect claim, the plaintiff must present an alternative design that is practical, feasible, and safer than the defendant's design. There is a large body of law that defines "practical," "feasible," and "safer" and explains the meaning of those terms. One word that is largely ignored, however, is arguably the most important: "design." Statutes do not define "design," and there is a dearth of case law on what a "design" is in this context. This article reviews the approach state courts take in considering what constitutes a "design," using New Jersey product liability law as a representative example, contrasts the state law approach with the guidance developed in the federal courts, and provides for consideration an alternative standard for "design."