The use and abuse of warnings in products liability--design defect litigation comes of age.

and theoretical. 89 Criticism of the hypothetical question has primarily centered around the following observations: (1) the hypothetical question usually is inordinately complex, convoluted, and CORNELL LAW REVIEW [Vol. 61:495 are to begin to concern ourselves with this serious question we suggest that it be done within the context of the causation question for it is there that the impact of reckless and untested evidence is most strongly felt. It is simply not logical to single out the design defect case for special ignominy since the problem of the use and abuse of theoretical evidence does not have its origin in and is not confined to design defect cases. If there is no reasonable analogue from another industry or product upon which the plaintiff can rely in an attempt to justify the viability of design alternatives, then the plaintiff may be forced into more extensive investigations with other experts, or the court may have to seek independent evaluation of the proferred alternatives. In any event, the reasonable viability of design alternatives cannot be addressed in a cavalier fashion by either party. If technology has not, by the time of trial, progressed to the point where the design alternatives can be shown to have a reasonable probability of success, then the issue correctly should be whether there still remains sufficient utility in the product "as-is" to justify the risks. C. The Design Defect Case-A Litany of Litigation Problems We have heretofore taken the position that important policy reasons exist for bringing the design defect case to the judicial highly confusing to thejury; (2) it provides an opportunity for highly partisan presentation of the facts, since counsel by careful selection of facts favorable to his client shapes a one-sided and often unrealistic hypothesis; (3) the question is often used by counsel as a summation or restatement of his case to the jury; and (4) the question is often used as an illegitimate tool to impeach the general credentials of the expert apart from his ability to speak to the issue at bar. See C. MCCORMICK, EVIDENCE § 16, at 36-37 (2d ed. 1972). To respond to these criticisms several Model and Uniform Acts have been promulgated which provide that the hypothetical question should be eliminated as a necessary means of eliciting expert opinion evidence. See MODEL CODE OF EVIDENCE Rules 402-10 (1942); UNIFORM RULES OF EVIDENCE 56-61 (1953). Under these acts the expert is permitted to testify without stating the underlying facts of data upon which he bases his conclusion. See FED. R. EVID. 705; CAL. EVID. CODE § 802 (1966); N.Y. Civ. PRAC. LAW § 4515 (McKinney 1963). The cross-examiner must expose the weakness of the factual basis of the expert's opinion. It may well be that abolishing the long factual dissertation, which was the hallmark of the hypothetical question, is an adequate response to the criticism that it is too complex and unwieldy a method for eliciting an expert opinion. However, it is no response at all to the underlying speculation indigenous to the causation question. Admittedly, Henderson's thesis is that justiciability depends on the logical relation of the various issues to each other. Henderson 1535. On any score the hypothetical question is grounded in logical inductive reasoning of the first order. "[Ilt is a strange irony that the hypothetical question, which is one of the few truly scientific features of the rules of Evidence, should have become that feature which does most to disgust men of science with the law of Evidence." 2 J. WIGMORE, Supra note 88, § 686, at 812. For an empirical and philosophical look at causation and hypothetical questions, see D. HUME, AN ENQUIRY CONCERNING HUMAN UNDERSTANDING § V, pt. 1 (1907). Nevertheless, the basic problem remains. Counsel for either side is permitted to establish or destroy an opinion by presenting highly theoretical and untested propositions. USE AND ABUSE OF WARNINGS forum. The authors strongly disagree with Professor Henderson's thesis that the courts have not in fact been trying design defect cases. Strange as it may seem, we are, however, in substantial agreement with Professor Henderson's view as to what may happen in the trial of design defect cases. Henderson asserts: Confronted with the hopeless difficulties of trying to redesign products via adjudication, and presumably unable to resist the social pressures generally favoring injured plaintiffs, courts would inevitably resort to some form of judicial coin-flipping, i.e., they would begin to determine defendants' liability on some arbitrary basis rather than on the purported basis of the reasonableness of the product designs brought before them .... The shift in the basis of manufacturers' liability would be disguised, consciously or otherwise, by heavy reliance upon the unsupported opinions of experts relating to the ultimate issue of the reasonableness of defendants' conscious design choices.90 Unlike Henderson, we do not believe that such a result flows from the inherently polycentric nature of design defect cases. We are, however, encouraged that another observer starting from an entirely different perspective has identified the same kinds of litigation problems that have troubled the authors in their investigation of the interaction of law and technology. There is little question that the design defect case presents a fertile breeding ground for the kinds of problems described by Professor Henderson. We have in a different forum examined in great detail the reasons for this phenomenon. 91 Underlying the problem is the unpreparedness of the litigation process to structure a forum wherein the technological expert will be permitted and encouraged to share his technological insights with court and jury. There exists a naive belief by the bar that we can proceed to the trial of complex technological issues under the same format that has governed the presentation of everyday "fender-bender" automobile accidents. Unreasonableness of design, cause-in-fact, proximate causation, and assumption of risk are complex issues. They are often interrelated; yet, they are separate and distinct. To present these problems to a jury in a confused jumble and to ask them to unscramble the problem places too great a strain on the adjudication process. A design defect case cannot, we believe, be tried without a comprehensive understanding of both the product and the total environment of its use. Experts cannot continue to be used solely for 90 Henderson 1558. 91 See generally Weinstein, supra note 2. 1976]