Answering a question asked by the United States Court of Appeals for the First Circuit, the New Hampshire Supreme Court held yesterday that in some cases the defendant in a "crashworthiness" or "enhanced injury" product liability case has the burden of apportioning the injuries attributable to the product defect once the plaintiff has proved causation.

"Crashworthiness" or "enhanced injury" cases are cases where there is an accident and the plaintiff claims that a product defect caused injuries in addition to those that would have been caused had the defect not existed. The case decided by the Supreme Court, Trull v. Volkswagen of America, Inc. ⁽¹⁾ involved a claim that a Volkswagen Vanagon lacked sufficient protection against frontal impact and lacked shoulder safety belts for the rear bench seats.

Writing for the Court, Justice Joseph Nadeau analyzed other crashworthiness decisions from around the country and New Hampshire law regarding products liability generally and concluded that a plaintiff in a crashworthiness case does have the burden to prove that there were injuries "over and above" the injury that probably would have occurred as a result of the impact absent a defect. Where these injuries are "separate and divisible" -- a question of law to be decided by the court, not the jury -- the burden of proving the extent of enhancement remains with the plaintiff. Where the injuries are "indivisible," the Court agreed with a majority of other jurisdictions in concluding that the defendant, not the plaintiff, must show which injuries are attributable to the defect and which would have occurred anyway without the defect.

It should be noted that, in rendering its decision, the Court relied extensively on a reporter's note to Restatement (Third) of Torts: Products Liability § 16. The Court also specifically distinguished an older New Hampshire case, Pillsbury-Flood v. Portsmouth Hospital ⁽²⁾ which rejected the so-called "loss of a chance" doctrine and held that the plaintiff has the burden to prove that, but for the tortious conduct of the defendant, the injury would not have occurred.

1.   99-441 (N.H. September 28, 2000).