As any defendant will tell you, there is nothing scarier than a lawsuit lurking in the dark. Litigation can be the stuff of nightmares, after all. This is particularly true for the unfortunate souls who are served with a products liability complaint in California. This area of law can be tricky, and the process is certainly no treat. A local witch and small business owner, who will be referred to here as “Hazel” to protect her identity, experienced this first-hand.
Hazel is a gifted witch who operates a small business high in the hills above Malibu. She manufactures Witches’ Brew, and other top-notch potions, draughts, and elixirs. Hazel’s shop frequently advertises itself as the best in the country, and her recipes have been with her family for centuries. That is why it came as a complete shock when Hazel’s company was sued in a products liability action. The Plaintiff, a first-time customer at Hazel’s shop, alleged that he purchased Hazel’s Witches’ Brew, and immediately fell ill after consuming it. Plaintiff argued that the Witches’ Brew was designed to bring him good karma for no less than two weeks before, and two weeks after, All Hallows’ Eve. Instead, the Brew allegedly caused Plaintiff to develop a third eye, break out in scales across his body (which resulted in permanent scarring), and to constantly be followed by a group of thirteen black cats. Hazel denied Plaintiff’s allegations, and the case went to trial.
Under relevant California law, two different tests may be used when assessing liability under a design defect claim. The Court usually determines whether to apply (1) the Consumer Expectation Test, or (2) the Risk-Benefit Test. Plaintiffs usually include both in their Complaint.
Under the Consumer Expectation Test, a plaintiff must prove that the product’s design was defective because the product did not perform as safely as an ordinary consumer would have expected it to when used, or misused, in a reasonably foreseeable way. The product’s failure to perform safely must be a substantial factor in causing plaintiff’s harm. In Hazel’s case, Plaintiff’s counsel argued that the Witches’ Brew caused his client great harm instead of bringing the promised good karma, and thus failed the Consumer Expectation Test.
Plaintiff also argued in favor of application of the Risk-Benefit Test. Under this analysis, California plaintiffs must prove that they were harmed by a defendant’s product, and that the product was a substantial factor in causing the harm. The burden then shifts to the defendant to prove that the benefits of their product outweigh the risks of the design. The jury may consider a variety of factors, including, but not limited to, the gravity of the potential harm, and the feasibility/cost/disadvantages of an alternative design.
During trial, Plaintiff pointed to Hazel’s use of several allegedly unsafe ingredients, including fillet of a fenny snake, blind-worm’s sting, and howlet’s wing, as proof that her Witches’ Brew was defectively designed. Plaintiff argued that there were many feasible alternative designs for the Witches’ Brew, many of which included synthetic forms of eye-of-newt and scale of dragon. Plaintiff argued that use of designs that incorporated these synthetic ingredients would have greatly reduced the risk of harm. Hazel’s attorneys countered that synthetic eye-of-newt and dragon scales are nothing like their non-synthetic counterparts, and would severely reduce the potency and effectiveness of Hazel’s Witches’ Brew.
Ultimately, the jury (composed of four mortals, two werewolves, three zombies, two ghosts, and a vampire) returned a full defense verdict in favor of Hazel. The jury revealed in post-verdict interviews that they were greatly impacted by Plaintiff’s admission on cross-examination that he mixed Hazel’s Brew with a Witches’ Brew made by one of Hazel’s primary competitors in Salem, Massachusetts, prior to ingestion. The combined brews likely resulted in an overdose of Lizard’s Leg (which would explain many of Plaintiff’s symptoms). The jury also found that Hazel’s Brew’s benefits outweighed the risks, despite her use of some unorthodox ingredients. We offer our congratulations to Hazel and her counsel on a job well done.
On behalf of Bradley, Gmelich & Wellerstein LLP, we also wish you all a safe and delightful Halloween this year! Watch out for ghouls and goblins, and don’t hesitate to reach out to us if you find yourself in a situation similar to Hazel’s, or if we can be of assistance on any other issue.