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Full Opinion
United States Court of Appeals
For the First Circuit
____________________
Nos. 01-1693, 01-1694
MINERVA QUINTANA-RUIZ, ON HER OWN BEHALF AND IN REPRESENTATION OF
HER MINOR DAUGHTER, INES M. REYES-QUINTANA,
Plaintiff, Appellee, Cross-Appellant,
v.
HYUNDAI MOTOR CORPORATION,
Defendant, Appellant, Cross-Appellee.
____________________
APPEALS FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. HĂ©ctor M. Laffitte, U.S. District Judge]
____________________
Before
Selya and Lynch, Circuit Judges,
and Schwarzer,* Senior District Judge.
____________________
Leslie G. Landau with whom McCutchen, Doyle, Brown & Enersen,
LLP, Lee G. Sullivan, Gibson, McAskill & Crosby, LLP, Brian P.
Crosby, Graffam & Biaggi, and Keith A. Graffam were on the brief
for Hyundai Motor Corporation.
Francisco Rebollo-Casalduc with whom Andrés Guillemard-Noble,
Giselle ColĂłn, and Nachman, Guillemard & Rebollo were on the brief
for Minerva Quintana-Ruiz.
____________________
August 27, 2002
____________________
*
Of the Northern District of California, sitting by
designation.
LYNCH, Circuit Judge. This product design case tests
some of the limits of the minority rule, adopted by Puerto Rico and
California, that the defendant bears the burden of proving that the
utility of a product's design outweighs the risks. Aponte Rivera
v. Sears Roebuck de P.R., Inc., 144 P.R. Dec. 830, 840 n.9, 1998
P.R.-Eng. 324486 n.9 (1998); Barker v. Lull Eng'r Co., 573 P.2d 443
(Cal. 1978). The question here is whether a jury may find for a
plaintiff, injured when her airbag properly deployed in an auto
accident, when the evidence is that the overall utility of the
design exceeds the overall risk, there is no evidence of the
existence of an alternative safer design, and the jury verdict is
based either on a misunderstanding of the law or solely on the
jury's rejection of the testimony of the experts retained by the
defendant. We hold that such a jury verdict is not sustainable.
It effectively, in these circumstances, either converts the
defendant to the status of an insurer or creates liability based on
a consumer expectation theory. Since neither of these outcomes is
permissible under Puerto Rican law, we reverse and direct entry of
judgment for defendant.
I. FACTS
Early in the morning of August 10, 1996, Ines Reyes-
Quintana, then fifteen years old, was returning from a party in a
1996 Hyundai Accent. Reyes-Quintana's brother was driving the car
and Reyes-Quintana was in the front passenger's seat. The Hyundai
was in the left lane of a two-lane road. A Nissan station wagon,
traveling at a substantially slower speed, crossed from the right
-2-
lane into the left lane, in front of the Hyundai. The Hyundai
braked, leaving about 163 feet worth of skid marks on the road.
The Hyundai then rear-ended the Nissan at a speed differential of
about 30 miles per hour. The passenger-side airbag deployed,
striking Reyes-Quintana's hand, which she had raised as if to brace
herself.
The force of the airbag striking her arm fractured Reyes-
Quintana's arm and wrist in four places. These were the only
injuries Reyes-Quintana sustained in the accident.1 The fractures
required three surgeries, including the permanent attachment of two
metal plates and sixteen metal screws. Reyes-Quintana has also
experienced some permanent loss of strength and scarring in that
arm. The Hyundai sustained significant damage, estimated at over
$11,300.
II. TRIAL PROCEEDINGS
Only two experts testified on the airbag's design. Both
experts were retained by the defendant, Hyundai. The plaintiff
1
The parties contest whether Reyes-Quintana was wearing
her seatbelt at the time of the crash. Reyes-Quintana maintains
that she was, and that this was a factual question for the jury,
which she says the jury must have found in her favor because they
found that she was not comparatively negligent. The judge
specifically instructed the jury that if it found that she was not
wearing her seat belt and that contributed to her injuries, the
jury should determine what percentage of the damages was
attributable to the failure to wear the seat belt. Because the
defendant's experts did not include any conclusions about whether
Reyes-Quintana was wearing her seatbelt at the time of the crash in
their reports, the judge forbade them from offering an opinion on
this point at trial.
-3-
also offered the testimony of a medical expert to establish Reyes-
Quintana's injuries.
A. Testimony of Dr. Martinez
Dr. Jose Martinez, formerly of Texas A & M University,
testified as an accident reconstruction expert, providing the
probable explanation of how the accident took place. He testified
that the police reports showed 163 feet of braking marks before
impact. Based on the damage sustained by the Hyundai, Dr. Martinez
concluded that it was traveling thirty miles per hour faster than
the Nissan at the point of impact. Based on this conclusion and
the length of the skid marks, Dr. Martinez opined that the Hyundai
had to be traveling at least 63 miles per hour before the driver
began to brake.
Dr. Martinez explained the mechanics of accident
reconstruction, a short summary of which is necessary in order to
understand the issues in this case. Barrier equivalent velocity,
referred to as BEV, is the speed at which a vehicle goes into a
barrier, measured in miles per hour. BEV is used for setting the
deployment level for airbags, and it is the measurement used in the
relevant federal regulations. Delta V, a related but not identical
concept, is the change in velocity of a vehicle, usually at the
center of gravity, also measured in miles per hour. Generally,
accident reconstruction experts measure the Delta V of the car
environment, rather than that of a specific occupant. In accidents
involving impact into a barrier, the BEV is often slightly less
than the Delta V.
-4-
The higher the Delta V is, the more serious the injuries
are likely to be. Conversely, the lower the Delta V, the less
serious the injuries are likely to be. The majority of accidents
occur in the 10 to 15 Delta V range. Generally, accidents with a
Delta V under 15 are considered to be of lower severity. Middle
severity accidents are in the 15 to 25 Delta V range; above 25 is
considered high severity. Dr. Martinez testified that a BEV of 15
"is where you start to get serious injuries, according to the
statistics" and that is "where you want that air bag to go off."
He also testified that even an accident referred to as "low
severity" is not mild because, if you are unrestrained, such an
accident can "put your head in the windshield" and cause serious
injuries. Although he could not provide the specific percentiles
of how many people would get hurt in an accident with a BEV under
14, he stated that "people do get hurt and will get hurt" in those
types of accidents. Dr. Martinez testified that an accident with
a BEV of 12 would cause an unbelted test dummy to go through the
windshield. Based on his reconstruction of the plaintiffâs
accident, Dr. Martinez estimated the BEV of the accident at "14 to
16, or maybe thirteen and change" and the Delta V at "15 to 16,
could be 15 to 17."
The airbag in this Hyundai model is designed to always
deploy in accidents with a BEV of 12 or greater, and so the
deployment of the airbag was in keeping with its intended design.
Dr. Martinez testified that, in any American car with an airbag,
-5-
the airbag would have deployed in an accident of the type at issue
here. Nothing in the cross-examination impeached any of these
conclusions. The plaintiff's counsel attempted to make Dr.
Martinez concede that Hyundai could have chosen an airbag design
that would deploy at a higher BEV; Dr. Martinez responded that he
did not know whether it was possible to create a design that would
only deploy at a BEV of over 14 and still meet the federal
performance standards.
The plaintiff's counsel also attempted to get Dr.
Martinez to concede that he knew of studies indicating that airbag
deployment at a BEV of less than 15 causes more injuries than it
prevents; Dr. Martinez responded that he had no knowledge of such
studies. No such studies were introduced. Dr. Martinez's overall
conclusion was that, even at accidents with a BEV of 14 and less,
the airbag "does more good than harm."
B. Testimony of Dr. Benedict
Dr. James Benedict, an expert in the response of the
human body to acceleration and impact forces, such as in accidents,
also testified. Specifically, he is an expert in biomechanical
analysis, occupant kinematics, injury causation, and airbag
performance. Although the defense retained Dr. Benedict, the
plaintiff called him as a witness and presented his testimony. He
testified that Reyes-Quintana's arm injuries were consistent with
impact with the deploying passenger airbag. He estimated that her
forearm was one to three inches from the dashboard at the time of
the injury, based on the fact that forearm fractures rarely occur
-6-
when the arm is three or more inches away from the airbag. He also
testified that even if the airbag had not deployed, Reyes-Quintana
could have received the same fractures in her forearm.
According to Dr. Benedict's testimony, the airbag deploys
when sensors in the car detect a change in acceleration level; the
airbag is essentially "predictive in nature," in that it must
predict the severity of the collision based on the initial change
in acceleration. The airbag deploys in about one-fourth of the
time it takes to blink an eye. Dr. Benedict testified that he knew
of no way for an airbag to deploy more slowly and still provide the
required protection. As for the Hyundai involved in this
particular accident, Dr. Benedict testified that the airbag was
designed to deploy in every accident with a BEV of 12 or
higher(which he referred to as the "must fire" level), but because
of variances in vehicle tolerances, could deploy at a BEV of as low
as 8.9. He agreed that in any car in America in 1996, the airbag
would deploy during a crash with a BEV of 15.
Like Dr. Martinez, Dr. Benedict testified that he would
classify an accident occurring at zero to 14 or 15 Delta V as a low
severity accident; an accident occurring at 15 to 25 Delta V as a
moderate severity accident; an accident occurring at 25 to 35 Delta
V as a severe accident; and any accident over 35 Delta V as very
severe. He testified that these are "ranges," and the
categorization may vary from expert to expert.
-7-
Dr. Benedict testified that the effects of a crash with
a BEV of 15 could vary. Some occupants will emerge from such an
accident with minor or moderate injuries, referred to as "AIS-I" or
"AIS-II" injuries, in reference to the Abbreviated Injury Scale
system for categorizing the severity of injuries. Perhaps as many
as half of those involved in such crashes would walk away from the
accident with no injuries. An unbelted individual without an
airbag in the type of crash experienced by Reyes-Quintana, however,
could hit and shatter the windshield, sustaining facial bone
fractures, lacerations to the face, and perhaps neck injuries.
Death could even result. Accidents with a Delta V of 15 account
for twenty percent of all AIS-III or greater injuries. AIS-III
injuries are severe, serious or critical, including injuries such
as contusions to the lung or a penetrating injury to the skull, and
may pose a threat to life.
Dr. Benedict acknowledged that there have been injuries
and some deaths caused by deployment of airbags. At the same time,
over six thousand lives had been saved by the presence of airbags.
He characterized this as a "trade-off." Airbags are meant to
protect the primary systems that keep people alive: the head, neck,
spine, chest, heart, and lungs. Airbag systems are most effective
in preventing these head, neck, and chest injuries, although they
may increase the risk of less severe injuries in some crashes.
As he had with Dr. Martinez, the plaintiff's counsel
attempted to get Dr. Benedict to admit that reports had concluded
that, in low severity crashes, occupants are more likely to be
-8-
injured by the airbag than by the accident itself. Dr. Benedict
responded that he knew of one study concerning driver's side
airbags, but denied that he knew of any such conclusion. At no
point did any expert testify that such a conclusion would be
accurate.
The plaintiff's counsel attempted to focus Dr. Benedict's
testimony specifically on a belted passenger's risk of injuries.
On examination by the plaintiff, Dr. Benedict testified that "you
can have significant injury in Delta Vs of 15, 14, 13," even when
wearing a seat belt, although he conceded that "it's less likely
wearing a seat belt" and the "probability of the head hitting
something [when a passenger is wearing a seat belt] is low."
According to Dr. Benedict, however, federal law requires that
airbags be designed to protect unrestrained passengers as well as
restrained passengers.
Quintana-Ruiz offered no evidence to contradict any of
the evidence described.
C. Proceedings After Close of Evidence
After all the evidence had been introduced, Hyundai moved
for judgment as a matter of law. The district court granted the
motion on the plaintiff's failure to warn claim,2 but denied it on
the plaintiff's design defect claim.
2
The judge held that federal law preempted any failure to
warn claim, because the federal regulations specify what warnings
manufacturers must provide.
-9-
In closing, the plaintiff's attorney argued that the
"only question" for the jury was "whether the damages suffered by
Ines [Reyes-Quintana] would have been less had the airbag not been
in the car or not deployed in the car." He argued that the Delta
V was around 15 and the BEV was in the 12 to 14 range, classifying
the accident as a "minor collision,"3 and that there should not be
airbag deployment "at these speeds." In referring to Dr. Martinez,
the plaintiff's attorney specifically said "believe him on just
about everything." With regard to Dr. Benedict, the plaintiff's
attorney said that "he knew what the truth was. He was an honest
man."
The judge instructed the jury, in relevant part, that:
Because a manufacturer of a product is not the insurer of
all the damages its product may cause, you must weigh the
evidence according to the following legal theories:
Under the doctrine of product liability, a plaintiff may
bring an action against a manufacturer who defectively
designed a product, or in the alternative, failed to
provide instructions or warnings.
Under the design theory, a plaintiff must
establish that, first, the product failed to perform as
safely as an ordinary consumer would expect when used in
an intended or reasonably foreseeable manner; or the
product's design is the proximate cause of the
plaintiff's injury and the defendant failed to establish,
in light of the relevant factors, that, on balance, the
benefits of the challenged design outweigh the risk of
danger inherent in such a design. . . .
. . . If you find that the benefits surpass the risks,
then the defendants are not liable under this theory.
3
There was no evidence that the BEV could have been as low
as 12. The expert testimony was that the BEV was "14 to 16, or
maybe thirteen and change." The experts classified this accident
as a "moderate" severity accident.
-10-
On the other hand, if you find that the benefits
do not surpass the risks, then you find for the
plaintiffs.
After deliberations, the jury found for the plaintiff,
and also found that the plaintiff bore no share of the comparative
fault. The jury awarded $400,000 to Ines Reyes-Quintana (who had
sued through her mother, plaintiff Quintana-Ruiz) and $150,000 in
emotional distress damages to Reyes-Quintana's mother, plaintiff
Quintana-Ruiz.
Hyundai again moved for judgment as a matter of law or,
in the alternative, a new trial or remittitur of damages. The
trial court denied the motions for judgment as a matter of law, but
found the damages to be excessive and ordered a new trial unless
the plaintiff accepted a remittitur to $90,000 of the emotional
distress damages awarded to Quintana-Ruiz, the mother. The
district court did not order remittitur of the $400,000 award to
Reyes-Quintana. Quintana Ruiz v. Hyundai Motor Co., No. 98-1858
(D.P.R. Mar. 12, 2001). In denying the motion for judgment as a
matter of law, the district court held that there was sufficient
evidence for the jury to conclude "that the deployment of the
airbag in an accident of this type was unwarranted given the risks
posed by the high speed at which the airbag deploys" or that, given
the evidence that airbags are designed to protect the upper body
areas, "the jury may have reasonably found that the risk posed to
other parts of the body, like plaintiff's arm, were too high and
that the overall design was defective." Id., slip op. at 6. The
district court further reasoned that, even if all the experts
-11-
testified that the utility of the airbag design outweighed the
risk, "there was testimony from which the jury could have found
that defendant's experts' testimony was biased and unreliable." Id.
The judge also found that Hyundai had forfeited any claim of error
regarding the consumer expectation test by not specifically
objecting to its inclusion in the jury instructions, and that,
regardless, the fleeting reference to consumer expectations in the
jury instructions was harmless error.4 Id. at 9.
III.
On appeal, Hyundai argues that there is insufficient
evidence, as a matter of law, to support the jury verdict. We
review the district court's denial of judgment as a matter of law
de novo, reviewing the evidence in the light most favorable to the
jury verdict to determine if the verdict is supported by the
evidence. See Rodowicz v. Mass. Mut. Life Ins. Co., 279 F.3d 36,
41-42 (1st Cir. 2002). "We assume the veracity, however, of any
admissions made and stipulations entered into by the party opposing
the Rule 50 motion, see Fed. R. Civ. P. 36(b), as well as any
evidence derived from disinterested witnesses that has not been
contradicted or impeached." Alvarez-Fonseca v. Pepsi Cola of P.R.
Bottling Co., 152 F.3d 17, 23 (1st Cir. 1998).
A. Evidence of Design Defect
4
Hyundai had specifically opposed the consumer expectation
theory in its pre-verdict motion for judgment as a matter of law,
arguing that "the ordinary consumer has no knowledge or expectation
as to how an airbag could or should perform" and therefore it is
not a proper theory for a defect claim based on an airbag's design.
-12-
Under Puerto Rican tort law governing design defect
claims, if the plaintiff proves that "the product's design is the
proximate cause of the damage," the burden shifts to the defendant
to prove that "the benefits of the design at issue outweigh the
risk of danger inherent in such a design." Aponte Rivera v. Sears
Roebuck de P.R., Inc., 144 P.R. Dec. 830, 840 n.9, 1998 P.R.-Eng.
324486 n.9 (1998); see also Collazo-Santiago v. Toyota Motor Corp.,
149 F.3d 23, 25-26 (1st Cir. 1998); Rivera Santana v. Superior
Packaging, Inc., 132 P.R. Dec. 115, 129 & n.9, 1992 P.R.-Eng.
754830 (1992). This rule, which follows California law as
established in Barker v. Lull Eng'r Co., 573 P.2d 443 (Cal. 1978),
is a minority rule. Compare, e.g., Vineyard v. Empire Mach. Co.,
581 P.2d 1152, 1154 (Az. App. 1978) (rejecting burden shifting);
Armentrout v. FMC Corp., 842 P.2d 175, 183 (Colo. 1992) (same);
Kallio v. Ford Motor Co., 407 N.W.2d 92, 95-96 (Minn. 1987) (same);
Wilson v. Piper Aircraft Corp., 579 P.2d 1287, 1287-88 (Ore. 1978)
(same); Ray v. Bic Corp., 925 S.W.2d 527, 532-33 (Tenn. 1996)
(same), with Keogh v. W.R. Grasle, Inc., 816 P.2d 1343, 1346 (Ala.
1991) (following Barker); Ontai v. Straub Clinic & Hosp. Inc., 659
P.2d 734, 739-40 (Haw. 1983) (same). The rationale articulated for
this burden shifting is that "most of the evidentiary matters which
may be relevant to the determination of the adequacy of a product's
design under the 'risk-benefit' standard e.g., the feasibility and
cost of alternative designs . . . involve technical matters
peculiarly within the knowledge of the manufacturer." Barker, 573
P.2d at 455. The goal of the Barker rule, therefore, was to
-13-
"lighten the plaintiff's burden" in proving a design defect, id. at
456, not to radically expand the scope of products considered
defective by design.
In this case, the defendant concedes that the plaintiff
has met her burden of establishing that the airbag was the
proximate cause of Reyes-Quintana's injuries. The question is
whether the defendant has met its burden of showing that the
benefits accruing from the airbag's design outweigh the risks.
The defect claimed in this case is that the airbag was
designed to deploy at a BEV of 14, the BEV level of the crash in
this case. Both parties agree that the airbag operated exactly as
it was intended and that the challenged design aspect was a
conscious design decision, rather than an unforeseen consequence
(for instance, a premature or unexpected deployment) of the
airbag's design. Cf. Collazo-Santiago, 149 F.3d at 25-26
(challenged design aspect involved whether airbag could have been
better designed to minimize injuries when it did deploy).
In Collazo-Santiago, another case from Puerto Rico
involving a design defect claim based on airbag-related injuries,
we noted that "[a]s identified in Barker, factors to be considered
by the jury" in evaluating whether the defendant has met its burden
of establishing that the design benefits outweighed its risks
include:
the gravity of the danger posed by the challenged design,
the likelihood that such a danger would occur, the
mechanical feasibility of a safer alternative design, the
financial cost of an improved design, and the adverse
consequences to the product and to the consumer that
would result from an alternative design.
-14-
Id. at 25 (quoting Barker, 573 P.2d at 455). The Puerto Rico
Supreme Court has also quoted this language approvingly. Rivera
Santana, 1992 P.R.-Eng. 754830 n.9.
1. Risk Utility Balancing
There is little guidance from the Puerto Rico Supreme
Court on how the risk-utility test should be applied. The case
that first adopted the rule, Rivera Santana, 1992 P.R.-Eng 754830,
was resolved on another ground -- the manufacturer's failure to
warn of the inherently dangerous nature of the product. A
subsequent case reiterating the risk-utility rule, Aponte Rivera,
1998 P.R.-Eng. 324486, was also resolved on a failure to warn
theory.
The plaintiff's attorney argued in his closing that the
question was "whether the damages suffered by Ines [Reyes-Quintana]
would have been less had the air bag not been in the car or not
deployed in the car." That, however, is not the correct question
in a design defect case. The question posed by the plaintiff's
attorney unfairly stacks the deck in the risk-utility equation --
when the question is based on the plaintiff's particular
circumstances, the "risk" of injury is 100%, as the plaintiff in
question has by definition been injured, and therefore the risk
will almost always outweigh the utility for that particular
plaintiff in that particular instance. Similarly, the trial
court's conclusion that, given the evidence that airbags are
designed to protect the upper body areas, "the jury may have
reasonably found that the risk posed to other parts of the body,
-15-
like plaintiff's arm, were too high and that the overall design was
defective," Quintana Ruiz, slip op. at 6, misstates the test. The
issue is not whether the design posed too great a risk to the
passenger's arm, or any one specific body part.
Instead, the question for the jury was whether,
generally, the benefits imposed by the airbag's challenged design
aspect (here, the fact that the passenger side airbag deploys in
accidents with a BEV in the range of 14 to 16) outweigh its risks.
In this inquiry, the jury should have considered the risk and
utility to unbelted passengers, as well as the risk to belted
passengers. The evidence was that unbelted passengers receive a
considerable utility from airbags in such accidents, as, absent the
airbag, there is a substantial risk of severe facial, head and
spinal injuries.5
There was much evidence presented at trial on the risks
posed by, and the utility created by, airbag deployment at a BEV of
14. The uncontradicted evidence was that the benefits outweighed
the risks. No expert testified that the risk of harm posed to
passengers by airbags in accidents with a BEV of 14 exceeded the
benefits of airbags deploying in those types of crashes. In fact,
both Dr. Martinez and Dr. Benedict testified that they knew of no
studies coming to such a conclusion. Dr. Martinez specifically
5
Reyes-Quintana herself admitted that, until just prior to
the accident, she was not wearing her seatbelt. Had the accident
occurred at an earlier point in the evening, when she was not
belted, she would have benefitted tremendously from the airbag
deployment.
-16-
testified that, at accidents with a BEV of 14 and under, the airbag
"does more good than harm." The evidence was that airbags are
designed to prevent the most serious types of injuries and
therefore to preserve lives, although the cost of preserving these
lives may be an increased risk of injuries of a less serious
variety in some crashes.
The plaintiff's argument that these serious injuries do
not occur in the type of accident she had was not supported by the
evidence. The evidence was that 20% of all AIS-III injuries occur
at a Delta V of 15 or below -- therefore, a significant percentage
of serious injuries are the result of these "moderate" severity
accidents. Reyes-Quintana had the benefit of the protection
against these types of injuries afforded by the airbag. She did
not suffer any head, face or brain injuries, precisely the types of
injuries an airbag protects against in an accident with a Delta V
of 15.
Much of the plaintiffâs examination of Dr. Benedict
concerned whether the airbag would deploy at a BEV of 8.9, and with
the fact that Hyundai does not warn consumers that airbags may
cause serious bodily injury. Neither of those topics was material
to the risk-utility questions before the jury. It was undisputed
that the BEV (and Delta V) were well above 8.9 (and therefore a
design choice to make the airbag deploy at a BEV of 8.9 could not
be a proximate cause of the plaintiff's injuries). And, because
the matter of labels is so extensively regulated by federal law,
there was no viable claim for failure to warn.
-17-
Many products, like airbags, involve a "trade off"
between the benefits offered to the consumer and the risk created
by the product. The risk-utility balancing test is designed to
avoid converting the manufacturer into the insurer of every harm
that arises out of a product from which the consumer derives
utility. The Puerto Rico Supreme Court has emphasized that "[t]he
manufacturer . . . is not the insurer of every damage his products
may cause." Aponte Rivera, 1998 P.R.-Eng. 324486; accord Rivera
Santana, 1992 P.R.-Eng. 754830 (same language) (quoting Mendoza v.
Cerveceria Corona, Inc., 977 P.R.R. 487, 499 (1969)); see also
Barker, 573 P.2d at 456 (noting that this test "stop[s] short of
making the manufacturer an insurer for all injuries which may
result from the use of its product"). The plaintiff is entitled to
compensation only if the challenged design aspect does more harm
than good, overall, for the consumer.
2. Alternative Design
An important part of the risk-utility test is the
question of whether there is a mechanically feasible safer
alternative design.6 See Barker, 573 P.2d at 455; Rivera Santana,
1992 P.R.-Eng. 75830 n.9.
There are at least three views of how the existence, or
non-existence, of a mechanically feasible alternative design fits
into the risk-utility balancing test: 1) a showing of an
alternative design is the sine qua non of a design defect claim,
6
The trial court's instructions to the jury did not
include instructions on alternative design. Neither party objected
to this omission.
-18-
meaning that a plaintiff cannot prevail even if the risk exceeds
the utility unless there is a showing of alternative design, see J.
Henderson Jr. & A. Twerski, Achieving Consensus on Defective
Product Design, 83 Cornell L. Rev. 867, 883-84 (1998); 2) the
plaintiff cannot prevail if there is no showing of a feasible
alternative design, unless the risk so far outweighs the utility
that no reasonable person would market the product, see id.;
Restatement (Third) of Torts: Product Liability, § 2 cmt. b (1998)
("[P]roduct sellers may be subject to liability even absent a
reasonable alternative design when the product design is manifestly
unreasonable."); and 3) it is not necessary to show the existence
of an alternative design if the risk outweighs the utility, but if
the actual utility exceeds the actual risk, then the plaintiff may
still prevail if there is a showing of a feasible alternate design
that would achieve the same utility with a lesser degree of risk,7
see Prosser & Keeton on Torts, § 99 at 699 (W. Keeton et al. eds.,
5th ed. 1984). It is not clear what view the Puerto Rico courts
would follow, but none of the three approaches assists the
plaintiff. As discussed above, the evidence shows that the actual
utility of an airbag deploying at a BEV of 14 outweighs the actual
risk posed by such an airbag. Therefore, even under the third
view of alternate design (the most plaintiff-friendly view),
7
This approach has been criticized as limiting market
choice -- a fully-informed consumer may wish to have the option of
a design that has a slightly higher risk level than another design,
but has the advantage in other areas, such as aesthetics. See
Henderson & Twerski, supra, at 886.
-19-
Quintana-Ruiz cannot prevail unless there is a feasible alternative
design.
Even taking this third view, it is well-established that
the inquiry into the "mechanical feasibility" of an alternative
design must be determined based on the universe of existing
technology at the time of manufacture and design (or possibly the
time of sale),8 not some future development leading to a
potentially feasible possibility. See Prosser & Keeton on Torts,
supra, § 99, at 701 ("The courts have almost universally held that
the feasibility of designing a safer product must be determined as
of the time the product was designed.");9 Restatement (Third) of
8
The Puerto Rico courts have not resolved the issue of
whether the alternative design must be feasible at the time of the
product's design and manufacture, or at the time of the product's
sale. The Restatement (Third) and Prosser and Keeton on Torts, as
cited above, take divergent approaches. There are competing policy
interests -- on the one hand is the possibility that a manufacturer
may continue to sell an outmoded design long after a safer
alternative becomes feasible, while on the other hand is the
absolutely inevitable lag time between when a product is designed
and when it is sold and the fact that technology may develop during
that lag time. There is no need to resolve this question here, as
it makes no difference for the plaintiff's case. There was no
showing of any feasible safer alternative design at the time of the
airbag's design or at the time the car was sold.
9
Prosser and Keeton on Torts also says that:
An alternative design that was not utilized is to be
considered as feasible when a reasonable person would conclude
that the (1) magnitude of the danger-in-fact that could have
been avoided by such alternative design in the (2) utilization
of the scientific technological know-how reasonably available
to the defendant outweighed the (1) financial cost of guarding
against such avoidable danger, (2) the impairment of the
benefits, and (3) any new danger-in-fact that would have been
created by the alternative design.
Prosser and Keeton on Torts, supra, § 99, at 700.
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Torts: Product Liability, supra, § 2 cmt. f ("[Q]ualified expert
testimony on the issue suffices, even though the expert has
produced no prototype, if it reasonably supports the conclusion
that a reasonable alternative design could have been practically
adopted at the time of sale.").
California courts as well have accepted the principle
that feasibility is determined in light of the technology extant at
the relevant time. See Brown v. Superior Court, 751 P.2d 470, 478
(Cal. 1988) ("Barker contemplates a safer alternative design is
possible . . . ."); cf. Buccery v. Gen. Motors Corp., 60 Cal. App.
3d 533, 547 (1976) ("[A]ny product so designed that it causes
injury when used or misused in a foreseeable fashion is defective
if the design feature which caused the injury created a danger
which was readily preventable through the employment of existing
technology at a cost consonant with the economical use of the
product."). In Aguayo v. Crompton & Knowles Corp., 183 Cal. App.
3d 1032 (1986), the plaintiff attempted to introduce evidence that
the defendant's successor had instituted a safer alternative design
in subsequent versions of the product. The appeals court upheld
the district court's ruling excluding the evidence. Noting that
while "[p]laintiff's experts had described how this alternate
safety system would operate using technology available at the time
of manufacture [of the original machine]" which "does have a
tendency to show it is feasible," the plaintiff's "offer of proof
omitted facts that would show that the knowledge and technology
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used to manufacture and design the [original] machine was the same
used to produce the [proffered] machine." Id. at 1038-39.
In light of this, the Barker burden-shifting rule
potentially puts defendants in an impossible situation with regard
to alternative designs -- that of trying to prove a negative (that
there is no alternative design that was feasible at the relevant
time that would not cause greater risk). Barker itself, and the
Puerto Rico cases adopting it, say only that the burden lies with
the defendant of proving that the overall utility exceeds the
overall risk, not that the burden is on the defendant to prove the
impossible.10 The courts of Puerto Rico will ultimately have to
sort through the precise role played by evidence of alternative
design.
In this case, no expert presented any evidence that there
was any alternative design that would have posed less of a risk to
passengers while still providing the same level of protection. In
fact, the expert testimony was just the opposite. The only
alternative design suggested by the plaintiff was an airbag with a
higher deployment level (presumably a deployment level at a BEV
greater than 16, given that the expert testimony placed the BEV of
10
In some instances, the plaintiff may bear some degree of
burden -- whether of production or of proof -- with regard to the
subsidiary issue of alternative design. For instance, it is
conceivable that once the defendant proves that the design's actual
utility exceeds actual risk, the burden may shift back to the
plaintiff to prove that an alternative design exists that would
make liability possible. Or alternatively, the plaintiff may bear
a burden of production with regard to an alternative design,
thereby giving the defendant something to prove or disprove. For
purposes of this case, it is not necessary for us to clarify these
gray areas.
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this accident at between 14 and 16). The expert testimony
effectively refuted this as a feasible alternative that would
decrease overall risk to passengers. "[F]easibility [is] not the
sole issue, for another relevant consideration [is] whether an
alternative design of the car, while averting the particular [harm
here], would have created a greater risk of injury in other . . .
situations." Barker, 573 P.2d at 456. Expert testimony
established that a deployment trigger above a BEV of 12 would leave
many individuals unprotected from serious injuries of AIS-III and
higher.
Further, Dr. Benedict testified that airbags cannot be
designed to trigger at one specific BEV level. Rather, because of
variations in cars, any one design will result in a range of
deployment levels. If a designer wants an airbag to definitely
deploy at a BEV of 12 (what Dr. Benedict referred to as a "must
fire" level), the airbag will sometimes deploy at as low as a BEV
of 8.9. The plaintiff's suggestion in closing arguments that
Hyundai should have designed a bag that would deploy at a BEV of 16
and above, but never at a BEV of 14 or 15, is inconsistent with the
evidence presented at trial on mechanical feasibility.
In addition, federal regulations governing the design of
airbags must factor into the jury's consideration of whether there
is any feasible alternative design. The National Highway Traffic
Safety Administration has mandated that airbags be designed to
protect unbelted occupants, as well as belted occupants. 49 C.F.R.
§ 571.208, S5.1 (2001). This evidence was before the jury.
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Although, "states may impose liability under their products
liability statutes even if the manufacturer or seller meets the
minimum federal standards," Rivera-Santana, 1992 P.R.-Eng. 754830,
an alternative design cannot be considered feasible if it would
require the manufacturer to run afoul of federal standards. In
fact, a state law claim that attempts to impose requirements that
conflict with the federal standards would most likely be preempted
by federal law. See Geier v. Am. Honda Motor Co., 529 U.S. 861,
871 (2000); Wood v. Gen. Motors Co., 865 F.2d 395, 408-10 (1st Cir.
1988).
On our review of the evidence, no rational jury could
have concluded on these facts that the risks of the airbag design
outweighed the benefits.
B. Expert Testimony
The district court alternatively upheld the jury verdict
on the basis that the defendant bore the burden of proof and that
the jury was free to reject the defendant's experts' testimony as
biased. The only "bias" was that Hyundai paid the experts'
consulting fees (including compensation for time spent testifying),
and that both experts primarily, although not exclusively, work for
the defense side in such cases.
Under the burden-shifting rule as stated by Puerto Rico
(albeit without consideration of the factors discussed here), a
plaintiff need not present any evidence regarding the risk or
utility of the product, or even regarding the design of the
product. Aponte Rivera, 1998 P.R.-Eng. 324486 n.9; Rivera Santana
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v. Superior Packaging, Inc., 1992 P.R.-Eng. 754830. From this, the
plaintiff argues that when a plaintiff does not present her own
expert testimony and convinces the jury to disregard the defense
experts' testimony, a plaintiff can prevail on her design defect
claim simply by showing that the product caused her injury.
The district court thought its alternative ground was
compelled by Collazo-Santiago, 149 F.3d 23. See Quintana Ruiz,
slip op. at 6 & n.17. For the reasons outlined below, we disagree.
Collazo-Santiago was also an airbag design defect case
under the Puerto Rico burden-shifting rule, in which this court
upheld a jury verdict for the plaintiff where the jury, in a
particular context, rejected the defense expert's testimony. The
plaintiff has argued that Collazo-Santiago established a flat rule
that a jury may reject the testimony of an expert witness on a
subject requiring expert testimony solely on the basis of the
jury's conclusion that the expert is biased in a case where the
defendant, as a matter of law, bears the burden of proof on the
issue. We describe the law in this area and apply it in the
context of the case where the burden of proof is put on the party
whose expert's testimony is rejected.
The question on appeal is whether there was sufficient
evidence to justify the jury's rejection of the expert's testimony
on grounds of bias. A jury is not "at liberty, under the guise of
passing upon the credibility of a witness, to disregard his
testimony, when from no reasonable point of view is it open to
doubt." Chesapeake & O. Ry. Co. v. Martin, 283 U.S. 209, 216
-25-
(1931); see also Sonnentheil v. Christian Moerlein Brewing Co., 172
U.S. 401, 408 (1899); Chicago, Rock Island & Pac. Ry. Co. v.
Howell, 401 F.2d 752, 754 (10th Cir. 1968) ("The fundamental rule
which makes the jury the sole judge of the weight and credibility
of testimony is subject to the caveat that testimony concerning a
simple fact, capable of contradiction, not incredible, and standing
uncontradicted, unimpeached, or in no way discredited by cross-
examination, must be permitted to stand."). See generally C.
Wright & A. Miller, 9A Federal Practice and Procedure § 2527, at
286 (1995).
In Chesapeake & O. Ry. Co., the Supreme Court reversed a
jury verdict based on the jury's rejection of a witness's testimony
where
A reading of [the testimony] discloses no lack of candor
on [the witness's] part. It was not shaken by cross-
examination . . . . Its accuracy was not controverted by
proof or circumstances, directly or inferentially; and it
is difficult to see why, if inaccurate, it readily could
not have been shown to be so. The witness was not
impeached; and there is nothing in the record which
reflects unfavorably upon his credibility.
283 U.S. at 216. The only possible basis for questioning the
witness's credibility in Chesapeake & O. Ry. was that he was an
employee of the defendant. This, the Court held, was not
sufficient evidence to support a jury verdict based solely on the
rejection of his testimony. Id.
This rule accords with the standard for reviewing grants
or denials of judgments as a matter of law, where generally we
accept as true "any evidence derived from disinterested witnesses
that has not been contradicted or impeached," Alvarez-Fonseca, 152
-26-
F.3d at 23. Cf. Kasper v. St. Mary of Nazareth Hosp., 135 F.3d
1170, 1173 (7th Cir. 1998) ("When a case turns on credibility,
neither side is entitled to judgment as a matter of law unless
objective evidence shows that it would be unreasonable to believe
a critical witness for one side.").
Generally, a jury may not reject testimony that is
uncontradicted and unimpeached (directly, circumstantially, or
inferentially) unless credibility is at issue,11 as "[c]redibility
determinations are uniquely within the jury's province." United
States v. Calderon, 77 F.3d 6, 10 (1st Cir. 1996). Juries, for
instance, may reject uncontradicted, unimpeached testimony when it
is improbable, inherently contradictory, riddled with omissions, or
delivered in a manner giving rise to doubts. See Quock Ting v.
United States, 140 U.S. 417, 420-21 (1891). There must otherwise
11
Wright and Miller characterize the Second Circuit as
disagreeing with the rule that juries may not reject uncontradicted
and unimpeached evidence from disinterested witnesses. Wright &
Miller, supra, at 286. The Second Circuit has expressed the view
that juries should be able to reject even uncontradicted evidence
because "the liar's story may seem uncontradicted to one who merely
reads it, but it may be 'contradicted' in the trial court by his
manner, his intonations, [and] his grimaces." Broad. Music, Inc.
v. Havana Madrid Rest. Corp., 175 F.2d 77, 80 (2d Cir. 1949); see
also Purcell v. Waterman S.S. Corp., 221 F.2d 953, 954 (2d Cir.
1955) (per curiam) (noting that "there is no rule that the
testimony of witnesses must be accepted if they are not
contradicted and if their credibility is not impeached" because the
witness's testimony may be "of no probative weight at all because
of his address, his bearing and his apparent lack of
intelligence."). Even were we to view this case through that lens,
these concerns are directed at cases where credibility is at issue,
which is not the case here. There was no evidence, direct or
circumstantial, to suggest that the witnesses' credibility was in
doubt, and the plaintiff's counsel vouched for the credibility of
the experts.
-27-
be some affirmative evidence in the record to put the witness's
credibility in doubt. See Wright & Miller, supra, at 288.
The Supreme Court's seminal opinion in Sonnentheil v.
Christian Moerlein Brewing Co., 172 U.S. 401 (1899), is helpful in
sketching the contours of this rule. Sonnentheil is usually quoted
as holding that "the mere fact that the witness is interested in
the result of the suit is deemed sufficient to require the
credibility of his testimony to be submitted to the jury as a
question of fact." Id. at 408. This rule must be understood in
context. The central issue in Sonnentheil was whether creditors
were guilty, or aware, of fraud in the making of a deed. Id. at
409. The uncontradicted testimony at issue was provided by the
creditors themselves, who quite obviously had a personal interest
in the outcome of the case. The Court observed that fraud cases
are uniquely within the province of the jury's credibility
determinations, as "[p]arties contemplating a fraud frequently
pursue . . . devious courses to conceal their designs." Id. at
410. Finally, the Court noted that there was much circumstantial
evidence that "there [was] a strong probability" that the creditors
were aware of the fraud. Id. at 413. As a result, the Court,
while noting that "the jury had no right to arbitrarily disregard
the positive testimony of unimpeached and uncontradicted
witnesses," held that "[u]nder the peculiar circumstances of this
case, it was not error to submit [the question of fraud] to the
jury." Id. at 408, 414.
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In this case, there is no such evidence as would support
a jury's rejection of the experts' testimony. The experts,
although paid by the defendants on an hourly basis, had no
financial or personal interest in the outcome of the case. Nor is
there a claim of fraud on the part of the expert witnesses. The
only "bias" is in their retention by the defense. In Chesapeake
& O. Ry., the Supreme Court held that the fact that the witness was
an employee of the defendant was not a sufficient basis for the
jury to reject his testimony. 283 U.S. at 216. Here, the
witnesses were paid outside experts, a much weaker basis on which
to find their testimony lacked credibility. There was no evidence,
circumstantial or direct, tending to show that they were not
credible witnesses. The testimony was not improbable,
inconsistent, or otherwise facially unbelievable. In short, there
is nothing in the record to support the jury's rejection of the
experts' testimony.
The general rule that a jury verdict cannot be based
solely on the jury's rejection of the other side's uncontradicted
testimony applies with particular force to expert testimony on
matters outside of lay competence. While juries may decide what
weight to give to the testimony of expert witnesses, they are not
"at liberty to disregard arbitrarily the unequivocal,
uncontradicted and unimpeached testimony of an expert witness
where . . . the testimony bears on technical questions . . . beyond
the competence of lay determination." Webster v. Offshore Food
Serv., Inc., 434 F.2d 1191, 1193 (5th Cir. 1970) (internal citation
-29-
omitted); see also Bearman v. Prudential Ins. Co., 186 F.2d 662,
665 (10th Cir. 1951) (same). There is no doubt the subject matter
here required expert testimony.
The idea that the jury could base a verdict simply on
rejection of expert testimony here is also inconsistent with the
rule that consumer expectations cannot be the basis of liability in
a case involving complex technical matters. A jury in such a case
must rely on expert testimony and cannot substitute its own
experience.
A consumer expectations theory was not available to the
plaintiff here.12 "Barker . . . made clear that when the ultimate
issue of design defect calls for a careful assessment of
feasibility, practicality, risk and benefit, the case should not be
resolved simply on the basis of ordinary consumer expectations."
Soule v. Gen. Motors Corp., 882 P.2d 298, 305 (Cal. 1994) (holding
that the consumer expectations test was not appropriate for a claim
that a car was defective because the wheel assembly detached in
accident). The California Supreme Court has held that "the
consumer expectations test is reserved for cases in which the
everyday experience of the product's users permit a conclusion that
the product's designs violated minimum safety assumptions." Id. at
308. The court specifically observed that "the ordinary consumer
12
The district court erroneously instructed the jury on the
consumer expectation theory. But Hyundai failed to object after
the instruction was given and therefore failed to preserve its
objection. See Gray v. Genlyte Group, Inc., 289 F.3d 128, 133-34
(1st Cir. 2002). Accordingly, our reversal of the jury verdict is
not based on this ground.
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of an automobile simply has 'no idea' how it should perform in all
foreseeable situations, or how safe it should be made against all
foreseeable hazards." Id. In one airbag design defect suit, a
California appellate court held that:
The deployment of an air bag is, quite fortunately, not
part of the "everyday experience" of the consuming
public. Minimum safety standards for air bags are not
within the common knowledge of lay jurors. Jurors are in
need of expert testimony to evaluate the risks and
benefits of the challenged design. . . . [I]n designing
air bags there are tradeoffs involving complex technical
issues.
Pruitt v. Gen. Motors Corp., 72 Cal. App. 4th 1480, 1483-84 (Cal.
App. 1999).13
The Collazo-Santiago court found that "the plaintiff
adduced sufficient evidence for the jury to find that the
defendant's expert was an interested witness." 149 F.3d at 28.
Thus, the decision rested not on an absolute rule but, rather, on
an assessment of the weight of the relevant evidence. Collazo-
Santiago presents a litany of facts casting doubt on the
defendant's expert's credibility. Collazo-Santiago differed from
this case in several ways. The plaintiff in Collazo-Santiago
13
Another California appellate court, however, has held
that a consumer expectations theory was available in a design
defect case challenging the relative placement of the airbag and
the windshield. See Bresnahan v. Chrysler Corp., 32 Cal. App. 4th
1559 (1995). In general, the question of whether a consumer
expectation theory is available depends not on the challenged
product itself, but on the complexity of the alleged defect;
"[f]or example, the ordinary consumers of modern automobiles may
and do expect that such vehicles will be designed so as not to
explode while idling at stoplights, experience sudden steering or
brake failure as they leave the dealership, or roll over and catch
fire in two-mile-per-hour collisions." Soule, 882 P.2d at 308 n.3.
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marshaled extraordinary evidence of expert bias. The expert not
only was being paid by the defendant, but had previously been
employed by the defendant as a design engineer. At the time of
trial, the expert was earning the vast majority of his income by
testifying for that particular defendant or its affiliates and had,
in fact, testified for them thirty-six times in the two year period
preceding the trial. Id. at 27-28.14
In contrast to Collazo-Santiago, this is not a case where
the veracity or the reliability of the expert testimony was in
doubt or the expert testimony did not cover a material point. In
fact, the plaintiff emphasized the veracity and reliability of the
experts. The plaintiff called Dr. Benedict as her own witness.
In referring to Dr. Martinez, the plaintiff's attorney specifically
said, "believe him on just about everything." With regard to Dr.
Benedict, the plaintiff's attorney said that "he knew what the
truth was. He was an honest man." The fact that the defendant
paid the experts' fees cannot alone establish bias to overcome
plausible and uncontradicted evidence that the design benefits
outweighed any risks. That is particularly so where the non-paying
party encourages the jury to accept both experts as credible. The
defendant proffered reliable expert testimony that indicated that
the utility of the design outweighed the risk, and the jury could
not simply disregard such testimony.
14
We do not suggest that these facts conclusively establish
bias.
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IV. CONCLUSION
The verdict is vacated and the case remanded with
instructions that judgment be entered for the defendant. No costs
are awarded.
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