Is negligent marketing a cause of action in the absence of a design defect?

13 One lower federal court has attempted to cast doubt on this proposition, suggesting that a negligent marketing claim in a case like this one "really amount[s] to an alternate pleading of the [strict] product liability theory," and that the act of marketing a product cannot "give rise to liability absent a defect in the manufacture or design of the product itself." Hamilton v. Accu-Tek, 935 F.Supp. 1307, 1323 (E.D.N.Y.1996). To the extent that case suggests that there is no difference between a cause of action for negligent marketing of a product and one for strict liability for defective design, it is, in my opinion, manifestly incorrect.

Traditionally, products liability actions have been allowed to proceed on a number of grounds, including negligence and strict liability. See, e.g., Voss v. Black & Decker Mfg. Co., 59 N.Y.2d 102, 463 N.Y.S.2d 398, 401, 450 N.E.2d 204, 207 (1983) ("In New York, a plaintiff injured by an allegedly defective product may seek recovery against the manufacturer on the basis of any one or more of four theories of liability. Depending on the factual context in which the claim arises, the injured plaintiff ... may state a cause of action in contract, express or implied, on the ground of negligence, or ... on the theory of strict products liability.") (citation and internal quotation marks omitted); id. ("As the law of strict products liability has developed in New York, a plaintiff may assert that the product is defective because of a mistake in the manufacturing process or because of an improper design or because the manufacturer failed to provide adequate warnings regarding the use of the product.") (citations omitted).

It is true that, in cases such as this one, the question of defect in strict products liability may closely resemble the question of breach in negligence, as the existence of a defect, like the existence of negligence, may depend (at least in part) on whether the benefit of the product outweighs the risk of harm. See infra Part II.B; see also Denny v. Ford Motor Co., 87 N.Y.2d 248, 639 N.Y.S.2d 250, 255, 662 N.E.2d 730, 735 (1995) (noting that "the inquiry in design defect cases [is] close[ ] to that used in traditional negligence cases"). But a claim of negligent marketing differs from a claim of design defect in at least one important way: