A high standard of proof:  Supreme Court rejects another products claim

By Peter Vieth, Virginia Lawyer Weekly – 4/2/2018

Supreme Court of Virginia has once again ruled that a product safety expert failed to prove a claimant’s case, slamming the door on what had been a $4.2 million trial victory for the family of a man killed in an industrial accident.

The decision clarifies that Virginia courts have a high standard for proof of a product defect and that “reasonable safety expectations” of consumers can be a factor.

The decision is Evans v. NACCO Materials Handling Group Inc. (VLW 018-6-018).

Lift truck

Jerry Wayne Evans worked at International Paper in Lynchburg, making boxes. He considered a higher paying position as a lift truck operator, but never completed the training. He decided he did not want that job.

Despite his incomplete training, Evans was asked to use a lift truck one day in 2010 to unload bales of paper from a tractor trailer. He had to drive up a ramp, over a dock plate and into the trailer. His truck became stuck in a gap between the dock plate and the trailer.

Evans hooked a tow chain so another lift truck could pull his truck out of the gap. After the truck was freed, Evans stepped off the truck to unhook the tow chain. His truck, on the inclined ramp, began to move. Evans was crushed to death between the two lift trucks.

Attention focused on the parking brake. Evans had set the brake, but the brake was out of adjustment. The brake was designed to let operators adjust the tension without the aid of tools. Operators sometimes loosened the tension to make the brake easier to operate, especially since most of the operating area was flat.

Evans’ widow sued the maker of the lift truck and offered expert Frederick Mallet to prove a design defect in the parking brake. Mallet said the brake was defective because it was operator-adjustable. Mallet said a mechanic should adjust the parking brake, not an operator. He agreed, however, that the brake’s design complied with industry standards.


A Roanoke jury found for the estate on a negligent design theory and awarded damages of $4.2 million. Judge David B. Carson set aside the verdict, ruling that Evans was contributorily negligent as a matter of law.

The estate appealed and the manufacturer assigned cross-error on the sufficiency of the evidence of negligent design.

The Supreme Court unanimously agreed that Mallet’s testimony fell short of proving the brake was unreasonably dangerous.

“Mallet did not testify that the design of the park brake violated government regulations, industry norms or practices, or consumer expectations,” wrote Justice Stephen R. McCullough for the court.

“The plaintiff also presented no evidence concerning the reasonable expectations of a user or consumer of the product with respect to the operator adjustability of the park brake,” the court said.

The court took its analysis further.

“Even where a plaintiff can prove that reasonable consumers expected a safer design, we hold that a design is not objectively unreasonable unless the plaintiff can show that an alternative design is safer overall than the design used by the manufacturer,” McCullough wrote.

Even if a different design might have prevented this particular accident, a “design is not safer if the proposed modification would expose operators and bystanders to an overall greater risk of injury or death than under the challenged design,” the court said.

The court pointed to the use of air bags in cars. They may expose children to a risk of harm, but removing airbags would result in greater overall risk, the court said.

The court affirmed the judgment for the manufacturer, albeit on different grounds than cited by Carson in the court below.

A failure to warn claim was foreclosed by the wording of jury instructions, the court added.


The case brought amici briefs from the Virginia Trial Lawyers Association, the Virginia Association of Defense Attorneys and the National Association of Manufacturers.

The VTLA attacked Carson’s ruling on contributory negligence and cautioned against second-guessing juries.

“Saying that the jury trial is sacred or that the recipient of a jury verdict is in a good position means nothing if judges are nevertheless free to do their own ‘justice’ with impunity, or if the jury’s work is seen more as a suggestion than a conclusion,” wrote E. Kyle McNew for the VTLA.

The manufacturers put the expert issue first. “Mallet did no testing or analysis. Mallet did not conclude that the design of the parking brake violated any government or industry standard, or any practice in the industry,” wrote Robert W. Loftin for the NAM.

The VADA wrote solely about Mallet’s testimony.

“The question is not whether a particular event might be prevented by a different design but whether the actual design is unreasonably dangerous in the context of industry regulation, standards, experience and expectations. Reasonableness of design is never judged against a particular expert’s personal preferences,” wrote James J. Walker for the VADA.

In a commentary, plaintiffs’ appellate specialist L. Steven Emmert said the Evans opinion evinces the Supreme Court’s full embrace of Kentucky law on the use of consumer expectations to define a product’s acceptance.

He pointed to two other recent defeats for products claims at the Virginia high court. In Dorman v. State Industries Inc. (VLW 016-6-048), the court said the number of similar products sold was directly related to whether the product would pass without objection in the trade. In Holiday Motor Corp. v. Walters (VLW 016-6-062), the justices suggested reasonable consumer expectations would have a role in defective product analysis.

The opinion in Evans “throws off any shyness on the subject,” marking a major victory for manufacturers, Emmert said.

The plaintiff was represented at trial by P. Brent Brown of Roanoke and on appeal by James J. O’Keefe IV of Roanoke. Brown did not respond to a request for comment.

The manufacturer was represented on appeal by Frank K. Friedman of Roanoke. He also did not respond to a request for comment.