The presumption of nonliability for products manufactured to meet or exceed mandatory federal safety standards, § 82.008, CPRC, is one of the cornerstones of the 2003 tort reform effort. This provision has come under repeated attack in product liability litigation around the state, especially in the context of motor vehicle accidents. To overcome the presumption, the plaintiff must produce positive evidence that the specific standard governing the product at issue is inadequate and exposes the public to an unreasonable risk of harm. In general, plaintiffs must designate an expert qualified under Rule of Evidence 702 to give an opinion detailing the inadequacy of the federal standards. Some trial courts are better than others at enforcing Rule 702 and properly applying the Robinson standards. Others have allowed evidence of corporate lobbying of Congress and federal agencies to show that the defendant made material misrepresentations about their products to water down the pertinent regulations. Still others have let the jury hear evidence relating to dissimilar products or other safety issues to show inadequacy. Some of these cases have produced megaverdicts on highly questionable evidentiary grounds.
Earlier this month, the Texas Supreme Court agreed to review on such case, American Honda Motor Co., Inc. v. Milburn (No. 21-1097), on petition for review from the Dallas Court of Appeals, and scheduled oral argument for September 13. The case arose from a collision between a Honda Odyssey, driven by an Uber driver, and a pick-up truck. One of the passengers in the Uber was sitting in the middle seat of a fold-down third row. The seat, which is common in a variety of SUVs, has a federally approved safety design which requires the lap belt to be anchored to the seat (otherwise the seat does not fold flat). The manufacturer specifically instructs and warns owners to make sure the belt is anchored before passengers sit there. The driver did not do this, and the plaintiff was injured when the driver ran a red light and hit the truck. At trial, the plaintiff’s seatbelt expert admitted that the seatbelt in question met the standard. There was also no evidence that any other injuries involving the seatbelt had been reported and no recalls have ever been made.
The plaintiff, however, offered a second expert who opined that the federal standard was inadequate because Honda could foresee that a passenger in that seat would not know about the seatbelt design or whether it was properly anchored. She made this conclusion based on a test designed and performed by plaintiff’s counsel (with no representative of the defendant present), in which several dozen people were asked to sit in that seat and fasten the seatbelt, which was unanchored. Predictably, no one knew or asked about it, but simply assumed the belt was operating properly. This is called “human factors” testing, and the “expert” admitted that it was both contrived and unscientific. Incredibly, the trial judge let the testimony in over Honda’s objection. The trial judge also excluded evidence that the driver had a criminal record, assaulted a passenger, and been involved in another accident while speeding. Even more incredibly, the trial court refused to allow Honda to submit the fault of a settling party—the driver—to the jury on the basis that he was an “employee” of the rideshare company. The jury awarded the plaintiff more than $30 million.
The court of appeals affirmed. In an opinion notably bereft of legal analysis, the court found that the trial court did not abuse its discretion in admitting the plaintiff’s bogus study or excluding evidence of the driver’s fault. It likewise let stand the trial court’s decision to keep the jury from assigning fault to the driver. I wish I could give you a reasoned justification for this holding, but alas I cannot. Honda has filed a petition for review with SCOTX challenging both the validity of the “human factors” test and the exclusion of the driver’s fault. TCJL filed an amicus curiae brief in support.
Our brief argues that both the trial and appellate courts failed in their duty as gatekeepers to throw out “junk science” expert testimony. By not applying Rule 702 to the plaintiff’s “human factors” expert, these courts have opened the door to whatever “study” a plaintiff’s counsel can cook up in order to rebut the presumption of nonliability, so much so that the presumption will become a dead letter. We also take the court of appeals to task for flat out violating Chapter 33, CPRC, by blocking submission of the negligent driver’s fault.
An amicus curiae brief filed last week by the Texas Trial Lawyers Association sidesteps the Rule 702 and Chapter 33 issues, arguing instead that the presumption of nonliability under § 82.008 never triggered because Honda did not meet its burden “to prove compliance with a mandatory safety standard that governed the risk alleged to have caused Milburn harm.” TTLA’s argument is based on SCOTX’s decision in Kia Motors Corp. v. Ruiz, 432 S.W.3d 865 (Tex. 2014), in which the Court the nonliability presumption did not apply because the manufacturer failed to establish that the relevant Federal Motor Vehicle Safety Standard (FMVSS) requiring seat belts and frontal air bags governed the risk that allegedly caused the harm: an air bag that did not deploy because of an alleged design defect in its wiring harness. Observing that the standard, FMVSS 208, “specifies the maximum amount of force and acceleration that dummy occupants may encounter during a frontal-crash test” and that the test “presumes air bag deployment,” the Court concluded that the standard did not product risk at issue—what happens if a design defect prevents the air bag from deploying in the first place.
TTLA argues that the Court’s reasoning in Kia applies equally here because FMVSS 208’s crash test requirements for seatbelts presume that the belt is properly fastened. In other words, the standard does not take into account that a passenger in the vehicle may either be unaware that the rear-seatbelt was unfastened or improperly fastened or may simply not understand how to operate a double-latch seatbelt. Pointing to the testimony of Honda’s seatbelt expert, who admitted that the federal standards do not require “usability testing” but relies on manufacturers to instruct users as to the proper operation of the seatbelt, TTLA asserts that, as in Kia, the manufacturer did not establish that the federal standards governed the product risk that allegedly caused the harm.
The brief goes on to argue that even if it did establish the applicability of the federal standards, plaintiff rebutted the presumption by presenting positive evidence to the contrary, i.e. the human factors testing referred to above. Citing a line of authority holding that a rebuttable presumption “vanishes” once contrary evidence is adduced (the so-called Thayer presumption) and noting that § 82.008 does not include language indicating that the presumption should be included in the jury charge (as does § 74.106 with respect to compliance with disclosure of certain associated risks of medical care or a surgical procedure), TTLA urged the Court to rule that the presumption disappeared once contrary evidence was offered and should not have been included the jury charge.
As you would expect, TTLA’s brief is well-argued and deeply researched. It appears to us, however, that Kia and this case are distinguishable. Whereas in Kia the issue was whether the federal standards governed the risk of a product defect that prevented an air bag from deploying, this case raises the question of whether the user’s understanding of how to operate an otherwise compliant seatbelt constitutes the “product defect” not governed by the standards. This shift in focus from the product itself to the user of the product begs the question of whether any government product safety standard can adequately guard against how the user may “understand” the product. Put another way, Kia relied on an objective analysis of whether the standard governed the risk, which is not the same as a user’s subjectiveperception of how to use that product, particularly when the product is accompanied by user instructions. It will be interesting to see if the Court takes up that distinction.
In any event, if the Court agrees that the plaintiff’s “human factors test” is unreliable under Rule 702 and should have been excluded, then much of the plaintiff’s argument about the application of the standards to the risk (that users don’t understand how to use a double-latch seatbelt) must fall. Even so, it seems unreasonable to expect federal safety standards to account for every possible way in which someone might use the product, and it is difficult to see what the manufacturer could have done in addition to providing specific instructions about how to use a properly designed seatbelt. At the very least, the owner of the vehicle, whose fault the trial court refused to submit to the jury, bears a significant measure of responsibility for not heeding the manufacturer’s instructions.
