The single most outcome-determinative decision in a design-defect case is often made before a jury ever sees the product: which test the forum applies. Risk-utility and consumer-expectation are not interchangeable framings of the same question. They allocate the burden differently, demand different experts, and reward different discovery. A products practitioner who picks a forum or frames a complaint without settling this question first is guessing at the case's spine.
The two tests, and why the split persists
Under the risk-utility test, the plaintiff generally must show that the foreseeable risk of harm could have been reduced by a reasonable alternative design, and that omitting that design made the product not reasonably safe. The consumer-expectation test asks whether the product was more dangerous than an ordinary consumer would expect when used as intended. The first demands a design alternative and an engineering case. The second can reach a verdict on a product that simply failed in a way no ordinary user would anticipate, without proof of an alternative.
States have not converged. The Florida Supreme Court in Aubin v. Union Carbide Corp., 177 So. 3d 489 (Fla. 2015), reinstated the consumer-expectation test and declined to make reasonable alternative design a required element. Pennsylvania, in Tincher v. Omega Flex, Inc., 104 A.3d 328 (Pa. 2014), kept both tests available and let the plaintiff proceed under either, and later case law there holds that industry-standard compliance evidence is inadmissible under the risk-utility analysis. Wisconsin retained its consumer-contemplation test rather than adopting the Restatement (Third) risk-utility framework wholesale. Illinois, in Jablonski v. Ford Motor Co., 955 N.E.2d 1138 (Ill. 2011), applied risk-utility balancing to both strict-liability and negligence design claims. The same defective ladder produces different elements in Tallahassee, Philadelphia, Madison, and Chicago.
Why the test choice drives the expert budget
A risk-utility case lives or dies on the alternative-design expert. You need an engineer who can build, or at least credibly specify, a safer design that was feasible and economical at the time of manufacture, and who can survive a Daubert or Frye challenge on whether the alternative was actually tested. That is an expensive expert and a long development timeline.
A consumer-expectation case shifts weight toward the failure itself and toward what an ordinary user reasonably expected. The expert work centers on failure analysis and use patterns rather than on designing a substitute product. Firms that staff every design case the same way overspend in consumer-expectation jurisdictions and underspend in risk-utility ones. Settle the governing test first, then build the expert list.
Recall and CPSC evidence: useful, not dispositive
A Consumer Product Safety Commission recall is evidence, not a verdict. A recall does not immunize a manufacturer for injuries that occurred before it, and it does not automatically eliminate liability for injuries after it when notice to consumers was inadequate. Conversely, the absence of CPSC enforcement is generally not admissible to prove that a product was safe.
Treat the recall as a documentary spine, not the case itself. The recall notice establishes the manufacturer's own characterization of the hazard, the affected unit range, and often the date the company first knew of the problem. That last point feeds a separate and valuable line. CPSC reporting obligations require a company to report substantial product hazards quickly, and a gap between internal knowledge and the report date supports a notice-and-conduct narrative that civil penalties, which now reach into the tens of millions per violation series, only underline. Pull the full recall file and the company's reporting timeline, not just the public-facing notice.
One caution on litigated recalls: the Leachco matter before a CPSC administrative law judge is a reminder that recall determinations themselves can be contested, and that a manufacturer fighting a recall is not the same as a manufacturer conceding a defect. Read the procedural posture before leaning on a recall as an admission.
Chain of custody decides whether you have a case at all
The strongest design theory collapses if the failed product is altered, lost, or handled by someone whose testimony you cannot produce. In a products case the physical exhibit is the case. From first contact:
- Secure the actual unit and its components, including fragments, before any insurer or third party takes possession.
- Document every transfer with dates and custodians, and avoid destructive testing without notice and an agreed protocol with the defense.
- Photograph the as-received condition before inspection, because the defense reconstruction expert will probe for post-incident alteration.
Spoliation cuts both ways. If the defendant controlled the product and discarded it, an adverse-inference argument is available. If the plaintiff's own expert alters it without notice, the defense will move to exclude. The discipline that protects the chain is the same discipline that preserves the spoliation remedy.
Building the case backward from the test
The practical sequence for a new product intake is short:
- Identify the forum and confirm which design-defect test it applies, including whether the plaintiff may elect between tests.
- Decide whether the case is fundamentally an alternative-design case or a failure-defied-expectations case, and staff the expert accordingly.
- Preserve the product and build the custody record before anyone touches it.
- Pull the full CPSC and recall record for the notice timeline, treating it as corroboration rather than proof.
A products case is won in the framing. The same set of facts can be a strong consumer-expectation claim and a weak risk-utility one, or the reverse, depending entirely on where it is filed and how it is pleaded. For practitioners coordinating product cases with related injury theories, see our medical-malpractice coverage on expert sourcing and audit-trail discovery, and our case-law reporting on how appellate courts are drawing the test lines. Start every new file by reviewing our product-liability archive on test selection before the first expert call.