Under Utah law, a plaintiff bringing a strict products liability claim must show that at the time of the injury an alternative, safer design, practicable under the circumstances existed. Plaintiff argues that the district court unlawfully found that Utah law limits a plaintiff to offering only one alternative design. The district court, however, explicitly acknowledged that sometimes multiple design options are warranted.

“The district court found that Plaintiff’s expert failed to commit to any definitive feasible design alternative. And it rightfully excluded his testimony on that basis.”

As in Guy v. Crown, 394 F.3d 320 (5th Cir. 2004), the plaintiff operated a forklift with an open compartment. He lost control, his left leg came out of the compartment, and he crushed it. “Plaintiff’s expert, like the Guy expert, never presented a definitive safer, alternative design. In fact, he made a point not to commit to any specific design. He only advocated the use of ‘a door’ and offered conceptualized possibilities:

“‘The lift truck could have been provided with several designs of doors including, but not limited to, a latching rear door, a spring loaded door, a magnet controlled door, and an interlocked door to provide further protection to operators from additional hazards. Properly designed doors that exist in the marketplace right now, or which could be easily manufactured (see the Elrod door) would have a negligible effect on the maintenance of the machine. The door should have been constructed out of a suitable material that would withstand the forces of impact generated during collisions, intrusions, tipovers and off-the-dock accidents. (Intrusion protection is not the primary purpose of the door needed to protect Mr. Peterson so while intrusion protection is helpful, it is not essential to improve the safety of the machine so long as the door will assist the operator in keeping his leg inside the operator’s compartment.) The cost of providing such a rear door would be insignificant relative to the cost of the forklift. The cost of adding a latching rear guard to the Raymond 420-C50QM would have cost at most $250 if designed and installed at the time of manufacture rather than as an add-on.’

“Berry did not commit to any type of door, material of door, cost of door. He also does not specify how a manufacturer would add ‘a door’ to the Raymond forklift despite admitting that to put a door on a forklift you would need to know where the hinges went. He did admit, however, that ‘rugged hinges were available for use.’ But again, he never stated that he would use rugged hinges here. He only offers that rugged hinges exist. He did not specify the measurements for ‘a door’ despite admitting that one would have to know whether the door spanned the entrance. He did not discuss how a manufacturer may hook the door up to the forklift’s electrical and computer systems despite admitting that someone would need to know whether such a hookup was possible. He also said he had not designed a specific door for the Raymond forklift. Defendant’s counsel asked Berry in a hearing, ‘do you have any engineering drawings to show us of your design of a door for the Raymond forklift?’ Berry responded, ‘no.’

“The district court here, like the district court in Guy, excluded expert testimony for failure to present any testable definitive design. The district court did not limit Plaintiff’s expert to submitting only one design. But it did require that Plaintiff’s expert offer at least one definitive safer, alternative design. Without a definitive design, neither Plaintiff’s expert nor the district court could meaningfully compare any proffered design with the existing design. And neither could a jury. For this reason, the district court did not abuse its discretion in excluding Plaintiff’s expert’s testimony for failure to offer any specific safer, alternative design.”


Petersen v. Raymond Corp., No.20-4026, 2021 WL 1568812 (10th Cir. April 22, 2021).