Expanded Acceptance of Custom & Practice in Strict Liability Cases

In California, the “consumer expectations” theory of design defect has been the bane of defense attorneys for years. I cannot tell you how many times we have been unable to persuade the court that it should not allow plaintiffs to pursue this theory. Further, in cases applying either this or the companion strict liability test, risk/benefit, courts regularly exclude virtually all evidence in support of the product design. In a recent opinion from the Court of Appeal for the State of California, Second Appellate District, the court has offered a ray of hope on these very issues.

3-29In Kim v. Toyota Motor Corp., plaintiffs claimed that their Toyota Tundra was defective for failing to incorporate an Electronic Stability Control (“ESC”) system. By motion in limine, plaintiffs sought to preclude any evidence “comparing the Tundra to competitor’s vehicles and designs.” The court interpreted this as a request to exclude “all evidence of custom and practice in the pickup truck industry.” Plaintiffs also sought to pursue the “consumer expectations” prong of strict product liability under California law, in addition to a risk/benefit analysis. The court surprised this commentator by affirming the determination by the trial court that evidence of industry custom & practice may be admissible under some circumstances in a risk/benefit case, and by affirming the decision of the trial court to preclude plaintiffs from pursuing consumer expectations.

The court proceeds through a lengthy analysis of California cases discussing strict liability and the admissibility of evidence of industry custom and practice in such cases. The court identifies two distinct lines of cases discussing the issue in the past (Titus v. Bethlehem Steel Corp. (1979) 91 Cal.App.3d 372 and its progeny on the one hand, and Howard v. Omni Hotels Management Corp. (2012) 203 Cal. App. 4th 403 and its progeny on the other). Remarkably, the court indicates that it is going to follow neither, and instead adopt a “middle ground”:

We are not persuaded either line of authority is entirely correct. Instead, we conclude that evidence of industry custom and practice may be relevant and, in the discretion of the trial court, admissible in strict product liability action, depending on the nature of the evidence and the purpose for which the party seeking admission offers the evidence.

The court explained that industry custom was valuable information.

Industry custom may reflect legitimate, independent research and practical experience regarding the appropriate balance of product safety, cost and functionality. (citations omitted) The parties in a strict products liability action probably will dispute whether and to what extent industry custom actually reflects such considerations and whether it strikes the appropriate balance. But that does not make the evidence inadmissible. Evidence of compliance with industry custom may tend to show that a product is safe for its foreseeable uses, while evidence of noncompliance with industry custom may tend to show that a product is unsafe for its foreseeable uses.

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The decision points out that some elements of what is typically considered a negligence analysis have already crept into strict products liability. The court cites the example of comparative fault of the plaintiff, and the possible application of the sophisticated user defense in strict liability cases as evidence that such cases are not totally divorced from any negligence type analysis. That, in the court’s mind, justifies the admission of evidence of custom and practice in some strict liability cases.

Exactly when such evidence is going to be admissible, and when it will not, is not entirely clear. Kim holds that it will be up to the trial court to determine on a case by case basis when such evidence will be admissible. The decision discusses multiple examples of both when such evidence would be admissible and when it would not. This is going to provide fertile grounds for counsel to argue either side in future cases, for family law and more, and if you’re in need of legal advice in family law or divorce attorney Fort Worth?. Contact us

For example, Kim  ruled that evidence that competitors tried to produce safer designs that ultimately malfunctioned or were prohibitively expensive would be relevant “to the mechanical feasibility factor,” and evidence that competitors’ designs made products less efficient or desirable “would be relevant to the adverse consequences factor.” On the other hand, evidence that Toyota’s competitors did not offer ESC would be neither relevant nor admissible. Frankly, the logic of the examples cited by the court is not readily apparent to this commentator and causes one to expect that attorneys will be struggling with this issue in future cases.

Kim affirmed the trial court’s determination that this case was not suitable for a consumer expectations analysis. In essence, the court concluded that this assessment of an auto maker’s design decision to incorporate, or not incorporate, an “ESC” system, was simply beyond the keen of an ordinary consumer. This is very encouraging for the defense. The experience of this commentator has been that courts are typically reluctant to preclude plaintiffs from pursuing consumer expectations regardless of defense counsel pleas that the issues are too complex to fit within “consumer expectations.”

Kim’s discussion regarding evidence of custom and practice addresses “strict products liability” generally, and appears to be saying that evidence of industry custom and practice could be admissible in either a consumer expectations case or a risk/benefit case. But then again, Kim involved only risk/benefit as the trial judge had expressly precluded use of the consumer expectations prong. Thus, plaintiffs may argue that this case stands for the proposition only that evidence of custom and practice might be available in some risk/benefit cases, but does not support the proposition that such evidence is admissible in any consumer expectations case. This should encourage many plaintiff practitioners to do what they are already doing: pursue consumer expectations and forego risk/benefit.

Pennsylvania Supreme Court to Address Whether Jury or Court Determines “Unreasonably Dangerous”

3-2The Pennsylvania Supreme Court recently allowed an appeal in two consolidated asbestos personal injury lawsuits on the limited issue of whether “a defendant in a strict-liability claim based on a failure-to-warn theory has the right to have a jury determine whether its product was ‘unreasonably dangerous.’” Amato v. Bell & Gossett, 448 EAL 2015 (Feb. 1, 2016); Vinciguerra v. Bayer Cropscience, Inc., 447 EAL 2015 (Pa. Feb. 1, 2016).

This case is particularly significant because it will be the first occasion that the Pennsylvania Supreme Court builds on its landmark decision in Tincher v. Omega Flex, Inc., 104 A.3d 328 (Pa. 2014).

Prior to Tincher, there was a firm separation between strict liability and negligence claims, and negligence concepts such as the inherent risks of a product versus its utility were not presented to a jury. Rather, the trial court would examine those considerations and determine whether a product was “unreasonably dangerous” as a matter of law. The jury was simply asked to decide whether the product was “defective,” i.e. “whether the product lacks any element necessary to make it safe for its intended use.” Tincher held that “whether a product is defective depends upon whether that product is ‘unreasonably dangerous’” and that determination is a question of fact for the jury.

The Amato/Vinciguerra case was tried before the Tincher decision came down. However, Crane had anticipated a change in the law and submitted a proposed failure-to-warn jury instruction incorporating considerations of foreseeability and reasonableness. The trial court declined to issue the proposed jury instruction, and the jury returned multimillion-dollar verdicts in favor of the plaintiffs.

Amato/Vinciguerra presents an opportunity for the court to address several issues raised by Tincher. First, Tincher, which involved a design defect claim, did not address how its decision applies to other strict products liability claims, i.e. manufacturing defect or failure-to-warn claims. The Amato/Vinciguerra case is a failure-to-warn case and the court should clarify whether one of its holdings – that a jury should determine whether a product is “unreasonably dangerous” – applies to failure-to-warn cases.

Second, Tincher held that design defect claims may proceed under either the risk-utility test or the consumer expectations test, so Amato/Vinciguerra presents a chance for the court to address whether these two tests will apply to failure-to-warn cases.

Third, the court might consider whether under Tincher, juries are permitted to consider “state-of-the-art” evidence in determining the reasonableness of a manufacturer’s failure to warn. Such “state-of-the-art evidence,” or evidence of the relevant industry standards and the science known during the time period in question, is significant in asbestos cases where manufacturers are often found liable for failing to warn about the dangers of asbestos during a time period when the dangers of asbestos were not known. This type of evidence would certainly be probative of the reasonableness of a manufacturer’s failure to warn and relevant to the jury’s determination of whether the lack of warning made the product “unreasonably dangerous.”