The Federal Court for the Southern District of West Virginia recently held that plaintiffs in a multi-district litigation over surgical mesh would have to prove that a safer, alternative design to an allegedly defective product was feasible at the time of production, and that such design would have eliminated plaintiffs’ risk of injury. The Court based its holding on West Virginia’s pattern jury instructions, which were authored and adopted after “extensive research, editing, and committee review,” by West Virginia lawyers, judges, and the Supreme Court.

In accordance with prior West Virginia precedent, the Court held that “to prove that a design is defective, [plaintiffs] must prove that there was an alternative, feasible design,” which existed at the time of manufacture that would have “eliminated the risk that injured [them].” This is because “[t]here are many designs which, although they may eliminate a particular risk, are not practicable to produce.”