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. In order to over to overcome the presumption, the plaintiff must that the specific standard governing the product at issue is inadequate and exposes the public to an unreasonable risk of harm. In general, plaintiffs have to produce 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 argue 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.

One such case has reached the Texas Supreme Court. American Honda Motor Co., Inc. v. Milburn (No. 21-1097), on petition for review from the Dallas Court of Appeals, arose from a collision between a Honda Odyssey, driven by an rideshare 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. This particular seat design, 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 he 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 courts to task for flat out violating Chapter 33, CPRC, by blocking submission of the negligent driver’s fault. In our view, this case demonstrates how a result-oriented court can use evidentiary rulings to subvert legislative policy decisions about tort law. Unfortunately, we have to ask SCOTX once more to intervene and correct an egregious abuse of discretion and erroneous appellate decision.

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