§ 99B-6. Claims based on inadequate design or formulation.
§99B‑6. Claims based on inadequate design or formulation.
(a) No manufacturer ofa product shall be held liable in any product liability action for theinadequate design or formulation of the product unless the claimant proves thatat the time of its manufacture the manufacturer acted unreasonably in designingor formulating the product, that this conduct was a proximate cause of the harmfor which damages are sought, and also proves one of the following:
(1) At the time theproduct left the control of the manufacturer, the manufacturer unreasonablyfailed to adopt a safer, practical, feasible, and otherwise reasonablealternative design or formulation that could then have been reasonably adoptedand that would have prevented or substantially reduced the risk of harm withoutsubstantially impairing the usefulness, practicality, or desirability of theproduct.
(2) At the time theproduct left the control of the manufacturer, the design or formulation of theproduct was so unreasonable that a reasonable person, aware of the relevantfacts, would not use or consume a product of this design.
(b) In determiningwhether the manufacturer acted unreasonably under subsection (a) of thissection, the factors to be considered shall include, but are not limited to,the following:
(1) The nature andmagnitude of the risks of harm associated with the design or formulation inlight of the intended and reasonably foreseeable uses, modifications, oralterations of the product.
(2) The likely awarenessof product users, whether based on warnings, general knowledge, or otherwise,of those risks of harm.
(3) The extent to whichthe design or formulation conformed to any applicable government standard thatwas in effect when the product left the control of its manufacturer.
(4) The extent to whichthe labeling for a prescription or nonprescription drug approved by the UnitedStates Food and Drug Administration conformed to any applicable government orprivate standard that was in effect when the product left the control of its manufacturer.
(5) The utility of theproduct, including the performance, safety, and other advantages associatedwith that design or formulation.
(6) The technical,economic, and practical feasibility of using an alternative design orformulation at the time of manufacture.
(7) The nature andmagnitude of any foreseeable risks associated with the alternative design orformulation.
(c) No manufacturer ofa product shall be held liable in any product liability action for a claimunder this section to the extent that it is based upon an inherentcharacteristic of the product that cannot be eliminated without substantiallycompromising the product's usefulness or desirability and that is recognized bythe ordinary person with the ordinary knowledge common to the community.
(d) No manufacturer ofa prescription drug shall be liable in a product liability action on account ofsome aspect of the prescription drug that is unavoidably unsafe, if an adequatewarning and instruction has been provided pursuant to G.S. 99B‑5(c). Asused in this subsection, "unavoidably unsafe" means that, in thestate of technical, scientific, and medical knowledge generally prevailing atthe time the product left the control of its manufacturer, an aspect of thatproduct that caused the claimant's harm was not reasonably capable of beingmade safe.
(e) Nothing in thissection precludes an action against a manufacturer in accordance with theprovisions of G.S. 99B‑5. (1995, c. 522, s. 1.)