Wisconsin high court nixes new products restatement in latex glove case. (News & Trends).

In a ruling that could have nationwide repercussions, the Wisconsin Supreme Court affirmed the "consumer contemplation" test in strict products liability cases. It ordered a latex glove manufacturer to pay damages to a health care worker who developed severe allergies and asthma after using the company's gloves. (Green v. Smith & Nephew AHP, Inc., 617 N.W.2d 881 (Wis. 2001).)

Defendant Smith & Nephew, Inc., asserted that its gloves were not defectively designed because their utility in preventing the spread of disease outweighed their dangers. The company also claimed that it should not be held liable because the risks of latex were unknown until after plaintiff Linda Green had begun using the gloves. It argued that the Wisconsin court should follow the American Law Institute's (ALI) 1998 Restatement (Third) of Torts: Products Liability and hold that a product is defective only if the manufacturer knew or could have known of its risks.

The court expressly rejected the danger/utility approach and held that a product can be deemed defective and unreasonably dangerous based solely on consumer expectations about that product, regardless of whether the manufacturer knew or should have known of its risks.

While it acknowledged that the Restatement (Third) tells courts to consider foreseeability of harm in strict products liability claims, the Wisconsin court reaffirmed the state's adherence to [section] 402(a) of the 1965 Restatement (Second).

Under this rule, Justice Jon Wilcox wrote, "although defect and unreasonable danger are distinct elements to a claim in strict products liability, both elements are based on consumer expectations." In contrast, Wilcox wrote, "foreseeability of harm is an element of negligence.... Unlike negligence liability, strict products liability focuses not on the defendant's conduct, but on the nature of the defendant's product."

Green's attorney, former ATLA president Robert Habush of Milwaukee, said this focus on the product is a rejection of the new restatement's effort to eliminate strict products liability in many design cases. "The court definitely gave the back of its hand to the restatement's attempt to cut back on consumers' rights," he said. Habush added that he believes the case will be widely cited.

Green began wearing latex gloves in 1986, and about 10 years later she was wearing up to 40 pair per day. The gloves contained high levels of allergy-causing proteins, and their coating of cornstarch powder allowed the proteins to become airborne and easily inhaled. The court found that the gloves were defective because of these properties and because the health care community was unaware of latex allergies at the time Green became sensitized. Thus, the gloves were in a condition not contemplated by the ordinary consumer, the court concluded.

The court held further that an allergy-causing product is unreasonably dangerous when it can cause reactions "in a substantial number of consumers" and the ordinary consumer is unaware of the danger. When a plaintiff proves these factors, the court held, the burden shifts to the manufacturer to prove that the product includes adequate warnings or instructions on safe use.

The court cited evidence that latex proteins can cause allergic reactions in 5 percent to 17 percent of all health care workers in the United States--a number it found substantial--and that the ordinary consumer was unaware of these reactions at the time of Green's sensitization. Because the gloves were sold without a warning, the court affirmed that they were not only defective, but also unreasonably dangerous.

Smith & Nephew argued that where a product that is safe for most consumers causes an allergic reaction, the reaction is the result of a "defect" in the consumer--a propensity for allergies--not a defect in the product.

The court rejected this argument. The reason that manufacturers are not usually liable when a product causes an extremely rare reaction, it said, is that a person who suffers such a reaction generally cannot prove that the product was more dangerous than the ordinary consumer would expect. In any event, the court concluded, Green's reaction to the gloves was not rare.

In its amicus brief, the Product Liability Advisory Council, a trade association representing 132 product manufacturers including Smith & Nephew, urged the court to "change Wisconsin law" by adopting the Restatement (Third). The court declined, citing authors who have called it "a wish list from manufacturing America" and "a vehicle for social reform" rather than a restatement of existing law.

"Rather than serving the policies underlying strict products liability law..., [the Restatement (Third)] increases the burden for injured consumers.... This court will not impose such a burden," Wilcox wrote.

James E. Rooks Jr., senior policy research counsel in the Center for Constitutional Litigation, said that Wisconsin is at least the third state, after Connecticut and Kansas, whose high court has rejected the approach to design cases taken by the Restatement (Third) since its adoption by the ALI. (See Potter v. Chicago Pneumatic Tool Co., 694 A.2d 1319 (Conn. 1997); Delaney v. Deere & Co., 999 P.2d 930 (Kan. 2000).)