¶ 76. {concurring). This review involves defective design claims against manufacturer defendants. While I agree with the lead opinion's decision to affirm the dismissal of these claims, I write separately to defend the merits of Restatement (Third) of Torts: Products Liability § 2(b) (1998). The lead opinion chastises the court of appeals for citing Restatement (Third), see lead op., ¶¶ 39-42, and it tries to put as much distance between Restatement (Third) and Wisconsin products liability law as possible, see, e.g., lead op., ¶¶ 17-18, 39-45. The purpose behind this criticism of Restatement (Third) is evident in Justice Bradley's concurring opinion. Justice Bradley does not want to consider Restatement (Third); she wishes to bury it.
¶ 77. In 2001 former Justice Diane S. Sykes wrote that Wisconsin was "seriously out of step with product liability law as it has evolved since this court adopted Restatement (Second) of Torts § 402A [(1965)] in Dippel v. Sciano, 37 Wis. 2d 443, 155 N.W.2d 55 (1967)." Green v. Smith & Nephew AHP, Inc., 2001 WI 109, ¶ 122, 245 Wis. 2d 772, 629 N.W.2d 727 (Sykes, J., dissenting). Some members of this court would like to address this disparity. Nonetheless, the issue might not *131have come up in this case had Justice Bradley not been so determined to discredit Restatement (Third) in her writings.
¶ 78. The truth is, however, that the justification provided by the lead opinion for dismissing the plaintiffs defective design claim is strikingly similar to the analysis that would be employed under Restatement (Third).
¶ 79. To illustrate, the lead opinion reasons that a claim for defective design cannot be maintained against the manufacturers of white lead carbonate pigment "where the presence of lead is the alleged defect in design, and its very presence is a characteristic of the product itself." Lead op., ¶ 2. Specifically, the opinion states, "Without lead, there can be no white lead carbonate pigment." Id. Similarly, Restatement (Third) § 2(b) would not impose liability against the pigment manufacturers for defective design because it would be impossible for them to design white lead carbonate pigment without using lead, see id., and therefore, the plaintiff would be unable to submit evidence of a reasonable alternative design that, if adopted, would reduce or eliminate white lead carbonate pigment's potential dangers, see Restatement (Third) of Torts: Products Liability § 2. Although claiming not to "require that a plaintiff affirmatively prove ... that an alternative design is commercially viable," see lead op., ¶ 45, the rationale employed by the lead opinion is ultimately tantamount to a conclusion that the plaintiffs claim must fail because he cannot establish a reasonable alternative design for white lead carbonate pigment.
¶ 80. Despite the similarity of analysis, the lead opinion declares that "[t]o the extent that the court of appeals relied on a reasonable alternative design re*132quirement [under Restatement (Third)], the court's analysis was misguided." Id., ¶ 42.
¶ 81. The distinction between the analysis the lead opinion disparages and the analysis the lead opinion employs is too metaphysical to justify continuing disavowal of Restatement (Third) of Torts: Products Liability § 2(b). Instead of denigrating Restatement (Third), I would adopt § 2(b) of Restatement (Third) for analyzing defective design claims1 and put Wisconsin back in step with the evolution of products liability law.2
*133I
¶ 82. Restatement (Second) of Torts was promulgated by the American Law Institute (ALI) in 1965. Section 402A, entitled "Special Liability of Seller of Product for Physical Harm to User or Consumer," was actually approved in 1964.
¶ 83. Section 402A was one of the most important and visionary sections of Restatement (Second). William L. Prosser (1898-1972), the preeminent scholar in American tort law who served as sole Reporter for most of the work on Restatement (Second), inspired and helped codify this strict liability section.
¶ 84. Section 402A reads as follows:
(1) One who sells any product in a defective condition unreasonably dangerous to the user or consumer or to his property is subject to liability for physical harm thereby caused to the ultimate user or consumer, or to his property, if
(a) the seller is engaged in the business of selling such a product, and
(b) it is expected to and does reach the *134user or consumer without substantial change in the condition in which it is sold.
(2) The rule stated in Subsection (1) applies although
(a) the seller has exercised all possible care in the preparation and sale of his product, and
(b) the user or consumer has not bought the product from or entered into any contractual relation with the seller.
¶ 85. At the time that Section 402A was written and adopted, the law on products liability was largely undeveloped. For instance, the third edition of Prosser's Handbook of the Law of Torts, published in 1964, contained no chapter on products liability, and only a brief section on "Sellers of Chattels: Strict Liability." See id. at 672-85.
¶ 86. The principal concern with Section 402A today is that it is outdated and no longer reflects the complexities that have developed in products liability law over the past 45 years.
II
¶ 87. In 1997, the ALI adopted Restatement (Third) of Torts: Products Liability. This limited, long-awaited undertaking represented "an almost total overhaul of Restatement (Second) [’s]" products liability law. Restatement (Third) of Torts: Products Liability at 3. The new Restatement split products liability into three distinct categories: manufacturing defects, design defects, and defects based on failure to warn. See id, § 2. Each functional category now carries its own separate standard of liability. See id.
*135¶ 88. Sections 1 and 2 of Restatement (Third) of Torts: Products Liability read as follows:
§ 1. Liability of Commercial Seller or Distributor for Harm Caused by Defective Products
One engaged in the business of selling or otherwise distributing products who sells or distributes a defective product is subject to liability for harm to persons or property caused by the defect.
§ 2. Categories of Product Defect
A product is defective when, at the time of sale or distribution, it contains a manufacturing defect, is defective in design, or is defective because of inadequate instructions or warnings. A product:
(a) contains a manufacturing defect when the product departs from its intended design even though all possible care was exercised in the preparation and marketing of the product;
(b) is defective in design when the foreseeable risks of harm posed by the product could have been reduced or avoided by the adoption of a reasonable alternative design by the seller or other distributor, or a predecessor in the commercial chain of distribution, and the omission of the alternative design renders the product not reasonably safe;
(c) is defective because of inadequate instructions or warnings when the foreseeable risks of harm posed by the product could have been reduced or avoided by the provision of reasonable instructions or warnings by the seller or other distributor, or a predecessor in the commercial chain of distribution, and the omission of the instructions or warnings renders the product not reasonably safe.
*136¶ 89. The introduction to Restatement (Third) describes what necessitated such wholesale revision:
In 1964 The American Law Institute adopted § 402A as part of the Restatement Second of Torts .... The major thrust of § 402A was to eliminate privity so that a user or consumer, without having to establish negligence, could bring an action against a manufacturer, as well as against any other member of a distributive chain that had sold a product containing a manufacturing defect. Section 402A had little to say about liability for design defects or for products sold with inadequate warnings. In the early 1960s these areas of litigation were in their infancy.
In restating the law of products liability more than a quarter of a century later, the [ALI] had before it thousands of judicial decisions that had fine-tuned the law of products liability in a manner hardly imaginable when Restatement Second was written. Issues that had not occurred to those members involved in drafting Restatement Second had become points of serious contention and debate in the courts. What should be the governing standard for design and warning liability ?
Id. at 3 (emphasis added); see also Victor E. Schwartz, The Role of the Restatement in the Tort Reform Movement: The Restatement, Third, Torts: Products Liability: A Model of Fairness and Balance, 10 Kan. J.L. & Pub. Pol'y 41, 42 (2000) ("Restatement (Second)'s Section 402[A] shed no light on what should be the legal standard for defect of design. None of the cases cited in support of § 402[A] discussed design liability. All of the cases concerned products that were mismanufactured.") (emphasis added).
¶ 90. As defective design claims became more prevalent in the late 1960s and the early 1970s, the ALI came to realize "that § 402A, created to deal with *137liability for manufacturing defects, could not appropriately be applied to cases of design defects." Restatement (Third) of Torts: Products Liability § 1 cmt. a. (emphasis added). This is because the consumer contemplation test,3 the test utilized by Restatement (Second) § 402A, makes little or no sense in the context of defective design claims.4
¶ 91. First, the test is amorphous and defies precise definition when used in a products liability case. See W. Page Keeton, Prosser & Keeton on Torts § 99, at 699 (5th ed. 1984) ("The test can be utilized to explain most any result that a court or jury chooses to reach. The application of such a vague concept does not provide much guidance for a jury.").
¶ 92. Second, consumer expectations regarding how a product should be designed are "more difficult to discern than in the case of a manufacturing defect." Restatement (Third) of Torts: Products Liability § 2 cmt. a. In fact, it is hard to imagine that ordinary consumers have any expectations regarding "the technical design characteristics of a product" other than the most basic expectation that the product be designed to work and to work safely. See Mary J. Davis, Design Defect Liability: In Search of a Standard of Responsibility, 39 Wayne L. Rev. 1217, 1236-37 (1993).
*138¶ 93. Third, applying the consumer contemplation test to defective design claims runs the risk of labeling entire product lines defective without ever considering the utility the products create for society. See Keeton, supra, § 99, at 698-99 ("This test can result in the identification of products as being defectively dangerous that are clearly not, as when a new drug is a great boon to humanity but a few are victimized by a side effect or adverse reaction that was an unknowable risk[.]") (footnote and citation omitted). Because a finding of liability for defective design has grave repercussions for the product at issue, courts should be required to consider not only the risks associated with the product but also the benefits. See Restatement (Third) of Torts: Products Liability § 2 cmt. a. ("Some sort of independent assessment of advantages and disadvantages, to which some attach the label 'risk-utility balancing,' is necessary [to determine whether a product is defectively designed].").
¶ 94. The lead opinion's willingness to close the door on Restatement (Third) of Torts: Products Liability § 2(b) evinces a belief that there is no meaningful difference among manufacturing defects, design defects, and failure to warn defects — that one standard of liability fits all three categories.
¶ 95. Most of the country has decided otherwise. Wisconsin is now one of only six states that clings to the consumer contemplation test as the exclusive test for analyzing defective design claims.5
*139III
¶ 96. By separating the standards of liability for manufacturing defects, design defects, and failure to warn defects, Restatement (Third) § 2 offers significant improvements in products liability law.
¶ 97. Restatement (Third) § 2(b) removes the focus of the inquiry in defective design cases from the ordinary consumer's expectations and shifts it to asking whether the product's design was reasonable. See id., § 2 cmt. d.
Whereas a manufacturing defect consists of a product unit's failure to meet the manufacturer's design specifications, a product asserted to have a defective design meets the manufacturer's design specifications but raises the question whether the specifications themselves create unreasonable risks. Answering that question requires reference to a standard outside the specifications.
*140Such a change in focus diminishes the likelihood that "strict liability will become absolute liability." Green, 245 Wis. 2d 772, ¶ 132 (Sykes, J., dissenting) ("[W]e must have some principled standards by which to evaluate product defectiveness in design... defect cases .... Evaluating design ... defectiveness solely by reference to consumer expectations comes close to imposing absolute liability.").
¶ 98. Restatement (Third)'s risk-utility balancing approach flows from the premise that risks must be foreseeable in order for the manufacturer to protect against them. See Restatement (Third) of Torts: Products Liability § 2(b) (stating that a product "is defective in design when the foreseeable risks of harm" could have been reduced or eliminated by the adoption of a reasonable alternative design) (emphasis added). Holding manufacturers liable for defective design based on "the foreseeable risks of harm posed by the product" promotes efficient investment in product safety and avoids the risk of recklessly eliminating entire product lines as a result of a hidden or undiscoverable design risk. Id., § 2 cmt. a. ("Most courts agree that, for the liability system to be fair and efficient, the balancing of risks and benefits in judging product design and marketing must be done in light of the knowledge of risks and risk-avoidance techniques reasonably attainable at the time of distribution.").
¶ 99. The fact that, under Restatement (Third) § 2(b), "a product is defective in design if the foreseeable-risks of harm could have been reduced by a reasonable alternative design is based on the commonsense notion that liability for harm caused by product designs should attach only when harm is reasonably preventable." Id., § 2 cmt. f.
*141IV
¶ 100. Despite the lead opinion's suggestion to the contrary, Restatement (Third) is not unfriendly to and does not impose unreasonable burdens upon plaintiffs making products liability claims. See lead op., ¶¶ 42-43, 45. It is true that to recover for defective design under Restatement (Third), most plaintiffs are required to submit evidence establishing that the manufacturer could have adopted a reasonable alternative design and that adopting the alternative design would have reduced or eliminated the harm posed by the product. See Restatement (Third) of Torts: Products Liability § 2(b) & cmt. f. However, the reasonable alternative design requirement is not as significant a barrier to recovery as the lead opinion suggests. See lead op., ¶¶ 42-43, 45.
¶ 101. One of the lead opinion's primary gripes with the reasonable alternative design element under Restatement (Third) is that it will require an expensive "battle of the experts over competing product designs." Id., ¶ 45. Although a complex products liability case may result in a "battle of the experts," this is not likely to be caused by the plaintiff having to submit sufficient evidence of a reasonable alternative design. Much of this evidence, where it exists, can be obtained through discovery. Even if Wisconsin did not adopt Restatement (Third) § 2(b) and incorporate its reasonable alternative design requirement into our defective design jurisprudence, a "battle of the experts" would likely remain the norm in complex products liability litigation.
¶ 102. In some defective design cases, however, expert testimony would not be necessary, even if the plaintiff were required to present evidence of a reasonable alternative design. In particular, "[c]ases arise in *142which the feasibility of a reasonable alternative design is obvious and understandable to laypersons and therefore expert testimony is unnecessary to support a finding that the product should have been designed differently and more safely." Restatement (Third) of Torts: Products Liability § 2 cmt. f.6
¶ 103. Furthermore, the actual burden of presenting sufficient evidence of a reasonable alternative design would require only that the plaintiff establish "the availability of a technologically feasible and practical alternative design that would have reduced or prevented the plaintiffs harm." Id. Thus, for plaintiffs who do need the assistance of expert testimony, there would be no requirement that an expert undertake the expensive and time-consuming burden of producing a model of the proposed reasonable alternative design. Id.
¶ 104. In addition, Restatement (Third) does not require proof of a reasonable alternative design in all defective design cases. Specifically, comment e. to Restatement (Third) § 2 leaves open the possibility that, absent a reasonable alternative design, courts may hold products to be defectively designed if the danger posed *143by the product eclipses its social utility. Id., % 2 cmt. e.7 ("[T]he designs of some products are so manifestly unreasonable, in that they have low social utility and high degree of danger, that liability should attach even absent proof of a reasonable alternative design."); see also id., § 2 cmt. b. Furthermore, under Restatement (Third) § 3, circumstantial evidence may be sufficient in some cases to support a conclusion that a product was defectively designed without requiring proof of a reasonable alternative design, if the product fails to perform its intended function. Id., § 3;8 see also id., § 2 cmt. b. Finally, under Restatement (Third) § 4, absolute liability is imposed if the product's design is in violation of applicable product safety statutes or regulations.
¶ 105. In sum, the lead opinion's fear of Restatement (Third) § 2(b) and the reasonable alternative design requirement is exaggerated.
*144V
¶ 106. Under some circumstances, plaintiffs may find Restatement (Third) more favorable to their chances of recovery than Restatement (Second). For example, manufacturer warnings can no longer inoculate the manufacturer from liability for the defect as was the case under Restatement (Second). Id., % 2 cmt. 1. ("In general, when a safer design can reasonably be implemented and risks can reasonably be designed out of a product, adoption of the safer design is required over a warning that leaves a significant residuum of such risks."); James A. Henderson, Jr. & Aaron D. Twerski, A Fictional Tale of Unintended Consequences[:] A Response to Professor Wertheimer, 70 Brook. L. Rev. 939, 946 (2005) ("Several high-profile cases have taken this position much to the chagrin of manufacturers who sought to absolve themselves from liability because they had thoroughly warned against the dangers."). Similarly, Restatement (Third) does not recognize the "open and obvious danger" defense that manufacturers can use under Restatement (Second) to avoid liability for defectively designed products by making the product's dangerous conditions "open and obvious." Restatement (Third) of Torts: Products Liability § 2 cmt. d. ("The fact that a danger is open and obvious is relevant to the issue of defectiveness, but does not necessarily preclude a plaintiff from establishing that a reasonable alternative design should have been adopted that would have reduced or prevented injury to the plaintiff."); see also Davis, supra, at 1236-37. Consequently, it is not hard to imagine that some plaintiffs' products liability claims would be treated more favorably under Restatement (Third) than under Restatement (Second).
*145VI
¶ 107. The two Reporters for Restatement (Third) of Torts: Products Liability were Professors James A. Henderson, Jr. (Cornell Law School) and Aaron D. Twerski (Brooklyn Law School). See Restatement (Third) of Torts: Products Liability at XVII. In 1998, these distinguished scholars were lauded by Professor Geoffrey C. Hazard, Jr., then Director of the ALI, who noted that the ALI's Executive Committee had designated them "as joint holders of the R. Ammi Cutter Reporter's Chair, an honor reserved for [ALI] Reporters whose service is regarded as especially outstanding." Id. at XVI.
¶ 108. In 2005, Professors Henderson and Twerski penned an article answering Professor Ellen Wertheimer's critique of Restatement (Third) of Torts: Products Liability. See Henderson & Twerski, supra. In the course of that article, the professors observed that "Wisconsin has long been the lone star state in our products liability law, marching to its own, sometimes quite peculiar, drummer." Id. at 940.
¶ 109. The lead opinion restates Wisconsin's peculiar position on alleged design defects without mustering the intellectual firepower to defend it. Wisconsin has every right to stand alone, but it should not do so unless its singular approach can be supported objectively and defended as sound.
¶ 110. In this case, the court should acknowledge that the law has evolved and adopt Restatement (Third) of Torts: Products Liability § 2(b) to analyze products liability claims alleging defective design. Other features of Restatement (Third) should be considered in appropriate cases another day.
*146¶ 111. For the reasons stated, I respectfully concur.
¶ 112. I am authorized to state that JUSTICE ANNETTE KINGSLAND ZIEGLER and JUSTICE MICHAEL J. GABLEMAN join this concurrence.Justice Bradley asserts that adopting Restatement (Third) of Torts: Products Liability § 2(b) for analyzing defective design claims would require that this court "overrule or otherwise modify scores of cases." Justice Bradley's concurrence, ¶ 66; Horst v. Deere & Co., 2009 WI 75, ¶ 133, _ Wis. 2d _, 769 N.W.2d 536 (Bradley, J., dissenting). The cases cited by Justice Bradley do not support her assertion. See Justice Bradley's concurrence, ¶ 66 n.3; see also Horst, _ Wis. 2d _, ¶ 133 n.2 (Bradley, J, dissenting).
Most notably, all but six of the cases cited by Justice Bradley were decided before Restatement (Third) was published in 1998. See Justice Bradley's concurrence, ¶ 66 n.3; see also Horst, _ Wis. 2d _, ¶ 133 n.2 (Bradley, J., dissenting). Therefore, there is no reason why this court would need to reach back to the cases decided before Restatement (Third) and overrule or otherwise modify their holdings. Moreover, a large portion of the pre-Restatement (Third) cases cited by Justice Bradley do not mention Restatement (Second) or involve claims for defective design and would not be disturbed by the adoption of § 2(b) of Restatement (Third) for defective design claims. See Horst, _ Wis. 2d _, ¶ 104 n.9 (Gableman, J., concurring).
Although the parties in this case did not rely upon Restatement (Third) to support their arguments, that did not prevent the lead opinion from seizing the opportunity to discredit Restatement (Third) and create roadblocks to its eventual adoption in Wisconsin. If Restatement (Third) is not relevant to this dispute, then the lead opinion should not use six paragraphs addressing its substance. See lead op., ¶¶ 39-45.
*133It should be noted that Restatement (Third) § 2(b) was discussed in some detail by the court of appeals when it decided this case. See Godoy v. E.I. du Pont de Nemours & Co., 2007 WI App 239, ¶ 8, 306 Wis. 2d 226, 743 N.W.2d 159. Also, in their reply brief, the plaintiffs advanced Restatement (Third) as an alternative grounds for recovery in Horst, a case argued only a few months after the present case, and Restatement (Third) was discussed by an amicus brief in that case as well. See Horst, _ Wis. 2d _, ¶ 102 n.8 (Gableman, J., concurring) (quoting the plaintiffs' reply brief). Finally, Restatement (Third) § 2(b) was briefed fully in a previous appeal to this court. See Green v. Smith & Nephew AHP, Inc., 2001 WI 109, 245 Wis. 2d 772, 629 N.W.2d 727.
Specifically, the consumer contemplation test asks whether the product in question, when it left the manufacturer, was in a condition not contemplated by the ordinary consumer, Restatement (Second) of Torts § 402A cmt. g. (1965), and whether the product was "dangerous to an extent beyond that which would be contemplated by the ordinary consumer," id. at cmt. i.
A similar argument can be made for failure to warn claims.
Alaska: Caterpillar Tractor Co. v. Beck, 593 P.2d 871, 878 (1979).
Arkansas: Boerner v. Brown & Williamson Tobacco Corp., 260 F.3d 837, 846 (8th Cir. 2001); French v. Grove Mfg. Co., 656 F.2d 295, 298 (8th Cir. 1981).
*139Hawaii: Tabieros v. Clark Equip. Co., 944 P.2d 1279, 1310-11 (1997); Ontai v. Straub Clinic & Hosp. Inc., 659 P.2d 734, 739 (1983).
Nebraska: Kudlacek v. Fiat, 509 N.W.2d 603, 610 (1994).
Oklahoma: Bishop v. Takata Corp., 12 P.3d 459, 461 (2000); Lee v. Volkswagen of Am., Inc., 688 P.2d 1283, 1285 (1984).
Justice Bradley's concurrence cites Professor Ellen Wertheimer's commentary in The Biter Bit: Unknowable Dangers, the Third Restatement, and the Reinstatement of Liability Without Fault, 70 Brook L. Rev. 889, 893 (2005), for the claim that "[s]ome jurisdictions that have adopted the Restatement (Third) are now back-tracking." Justice Bradley's concurrence, ¶ 63. However, a close look at Professor Wertheimer's assertion shows virtually no empirical support for the statement. See Wertheimer, supra, at 934-37. Without citation to courts that have actually retreated from their previous adoption of Restatement (Third), Justice Bradley's reliance on Professor Wertheimer's assertion is unpersuasive.
Comment f. to Restatement (Third) § 2 continues with the following:
For example, when a manufacturer sells a soft stuffed toy with hard plastic buttons that are easily removable and likely to choke and suffocate a small child who foreseeably attempts to swallow them, the plaintiff should be able to reach the trier of fact with a claim that buttons on such a toy should be an integral part of the toy's fabric itself (or otherwise be [ir]removable by an infant) without hiring an expert to demonstrate the feasibility of an alternative safer design. Furthermore, other products already available on the market may serve the same or very similar function at lower risk and at comparable cost. Such products may serve as reasonable alternatives to the product in question.
Comment e. to Restatement (Third) § 2 is sometimes referred to as "the "Habush Amendment" in recognition of ALI Advisory Committee member Robert L. Habush from Milwaukee. See Victor E. Schwartz, The Role of the Restatement in the Tort Reform Movement: The Restatement, Third, Torts: Products Liability: A Model of Fairness and Balance, 10 Kan. J.L. & Pub. Pol'y 41, 45 (2000).
Restatement (Third) of Torts: Products Liability § 3 states the following:
It may be inferred that the harm sustained by the plaintiff was caused by a product defect existing at the time of sale or distribution, without proof of a specific defect, when the incident that harmed the plaintiff:
(a) was of a hind that ordinarily occurs as a result of product defect; and
(b) was not, in the particular case, solely the result of causes other than product defect existing at the time of sale or distribution.