Kim v. American Honda Motor ( 2023 )

Case: 22-40790 Document: 00516959604 Page: 1 Date Filed: 11/07/2023
United States Court of Appeals
for the Fifth Circuit United States Court of Appeals
Fifth Circuit
____________ FILED
November 7, 2023
No. 22-40790 Lyle W. Cayce
____________ Clerk
Su Min Kim; Ji Hun Kim,
Plaintiffs—Appellees,
versus
American Honda Motor Company, Incorporated,
Defendant—Appellant.
______________________________
Appeal from the United States District Court
for the Eastern District of Texas
USDC No. 4:19-CV-332
______________________________
Before Higginbotham, Smith, and Elrod, Circuit Judges.
Patrick E. Higginbotham, Circuit Judge:
Su Min Kim and Ji Hun Kim (“the Kims”) were injured in a side-
impact car accident in a 2014 Honda CR-V and sued American Honda Motor
Company, Inc., asserting strict liability and negligence defective design
product liability claims. A jury found Honda liable and found $21,430,808.74
in damages. After apportioning, the court awarded the Kims nearly $5
million.
In the course of litigation, Honda moved to exclude Plaintiffs’ two
liability experts, moved for a new trial and a judgment as a matter of law
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(“JMOL”), and objected to the want of a jury instruction regarding a
presumption of nonliability (“the presumption”). On appeal, Honda argues
the district court erred in denying the motions and rejecting the requested
instruction. We AFFIRM.
I.
A.
On June 30, 2018, 17-year-old Ji Hun Kim was driving a 2014 Honda
CR-V in an eastbound direction on Warren Parkway in Frisco, Texas, with
his 20-year-old sister, Su Min Kim, in the front passenger seat. At the same
time, Trae Michael Hubbard was driving northbound on Dallas Parkway. As
Ji Hun drove through the intersection of Warren Parkway and Dallas
Parkway at a speed of approximately 34 mph, Hubbard ran a red light, driving
into the intersection traveling 45–50 mph and T-boning the front passenger
side of the Kims’ CR-V.1
Ji Hun suffered only a minor concussion, but Su Min was seriously
injured. Her skull was crushed, and she sustained permanent injuries to her
brain, skull, face, and left eye that have left her unable to live independently.
The force of the collision caused Ji Hun’s upper body to move to the
right, toward the impact on the passenger side. He rolled out of the shoulder
belt portion of his seatbelt, which crossed over his left shoulder, and his head
intruded into the passenger space. At the same time, Su Min moved to the
left, rebounding after hitting the side airbags. Consequently, the right side of
Ji Hun’s head struck the left side of Su Min’s head.
_____________________
1
There was a third vehicle involved in the crash, but it did not cause any of the
injuries at issue and is not relevant to this litigation.
2
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This injury is typed as a “far-side impact injury,” which Honda’s
engineer and corporate representative defined as “occur[ing] when the
occupant on the other side of the impact hits something inside the vehicle on
the side where the impact occurred.” That is, Su Min’s injury did not result
directly from being hit by Hubbard’s car. It occurred because the accident
caused Ji Hun to slip out of his seatbelt and crash his head against Su Min’s
head.
At trial, Plaintiffs’ expert Neil Hannemann explained that the crash
should have been “a survivable accident without serious injury” because the
“configuration and severity” of the accident were below the parameters of
testing by the Insurance Institute for Highway Safety. However, Hannemann
said, and Honda’s corporate representative admitted, that “prior to the
manufacturing of the 2014 Honda CR-V,” Honda did not “run a side impact
test with a far side crash test dummy in the test vehicle.”
B.
On May 7, 2019, the Kims filed a product liability design defect lawsuit
against Honda, bringing both strict liability and negligence claims. They
sought damages for, inter alia, emotional distress, medical expenses, physical
pain and suffering, physical and mental impairment, and lost earnings
capacity. They argued Honda could have used either of two alternative,
extant designs that would have prevented Su Min’s injuries: a center airbag
or a reverse geometry seatbelt.
Honda moved to exclude the testimony of Plaintiffs’ two experts: Dr.
Mariusz Ziejewski, a biomechanical engineer and accident reconstructionist,
and Neil Hannemann, an automotive engineer. The Kims sought to offer
their opinion of how the accident occurred, how Su Min sustained her
injuries, and whether the center airbag or reverse geometry seatbelt designs
would have likely prevented them. After a Daubert hearing, the district court
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denied both motions, concluding that Honda’s challenges to Ziejewski’s and
Hannemann’s opinions went to their weight, not their admissibility.2
At trial, Honda requested a jury instruction pursuant to Texas Civil
Practice and Remedies Code § 82.008, which provides a rebuttable
presumption of nonliability to manufacturers and sellers in product liability
actions if they complied with federal regulations that govern the product risk
that allegedly caused the harm.3 Honda posited that the relevant product risk
was “the risk of injury in a side-impact collision,” and that there was a federal
standard with which Honda complied that governed the risk. But the district
court rejected Honda’s definition of product risk, opting instead for a more
case-specific one: “the risk of injury from a far-side impact during a near-side
collision.” Because there was no federal standard governing that product
risk, the district court denied Honda’s requested instruction.
The jury found Honda liable for a defective design and awarded Su
Min $21,180,808.74 and Ji Hun $250,000. After the jury assigned 77% of the
responsibility to Hubbard (the driver of the other car) and the court adjusted
the award in its final judgment, Honda owed Su Min $4,871,586.01 and Ji
Hun $57,500.
After trial, Honda filed a renewed motion for a JMOL and a motion
for a new trial, raising numerous grounds for relief. The district court denied
these motions in a 61-page published opinion.
_____________________
2
See generally Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579 (1993). These
asserted errors were preserved under Federal Rule of Evidence 103(b). FED. R. EVID.
103(b) (“Once the court rules definitively on the record—either before or at trial—a party
need not renew an objection or offer of proof to preserve a claim of error for appeal.”).
3
TEX. CIV. PRAC. & REM. CODE § 82.008(a).
4
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Honda reiterates most of these arguments on appeal: that (1) the
district court abused its discretion by denying Honda’s motions to exclude
Plaintiffs’ experts; (2) the district court erred by denying Honda’s JMOL
motion; and (3) the district court erred by ruling the nonliability presumption
did not apply and, therefore, not instructing the jury about the presumption.
II.
The district court had jurisdiction over this diversity case under
28 U.S.C. § 1332(a),4 and there is no challenge to the application of Texas
law in this case. This Court has jurisdiction over the district court’s final
judgment pursuant to 28 U.S.C. § 1291.
We review a district court’s decision to admit or exclude expert
testimony “for an abuse of discretion,”5 accepting that “[d]istrict courts
enjoy wide latitude in determining the admissibility of expert testimony, and
the discretion of the trial judge and his or her decision will not be disturbed
on appeal unless manifestly erroneous.”6 “‘Manifest error’ is one that is ‘plain
and indisputable, and that amounts to a complete disregard of the controlling
law.’”7 If this Court finds an abuse of discretion, it must then conduct a
harmless error analysis and “affirm[] the judgment, unless the ruling affected
substantial rights of the complaining party.”8
_____________________
4
There is complete diversity between the parties, as Plaintiffs are both Texas
residents, and Honda is a resident of Canada. The amount in controversy exceeds $75,000.
5
Hodges v. Mack Trucks, Inc., 474 F.3d 188, 194 (5th Cir. 2006).
6
Id. (emphasis in original) (citation omitted).
7
Bear Ranch, L.L.C. v. Heartbrand Beef, Inc., 885 F.3d 794, 802 (5th Cir. 2018)
(citation omitted).
8
Knight v. Kirby Inland Marine, Inc., 482 F.3d 347, 351 (5th Cir. 2007) (citation
omitted).
5
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By contrast, this Court reviews a district court’s denial of a JMOL
motion de novo, and it applies the same deferential standard as the district
court does in reviewing the jury’s verdict.9 A JMOL “is proper only when ‘a
reasonable jury would not have a legally sufficient evidentiary basis to find for
the party on that issue.’”10 This standard is met only “if the facts and
inferences point so strongly and overwhelmingly in the movant’s favor that
jurors could not reasonably have reached a contrary verdict.”11 In other
words, this Court will not reverse the denial of a JMOL motion unless there
is no “substantial evidence” to support the verdict, “or if the legal
conclusions implied from the jury’s verdict cannot in law be supported by
those findings,”12 as courts of appeal are “wary of upsetting jury verdicts.”13
When evaluating whether there is substantial evidence to support the verdict,
this Court “must consider all of the evidence in the light most favorable to
the nonmovant, drawing all factual inferences in favor of the non-moving
party, and leaving credibility determinations, the weighing of evidence, and
the drawing of legitimate inferences from the facts to the jury.” 14
_____________________
9
Janvey v. Dillon Gage, Inc. of Dallas, 856 F.3d 377, 384 (5th Cir. 2017).
10
Id. (quoting Abraham v. Alpha Chi Omega, 708 F.3d 614, 620 (5th Cir. 2013));
FED. R. CIV. P. 50(a).
11
Abraham, 708 F.3d at 620 (citation omitted).
12
Baisden v. I’m Ready Prods., Inc., 693 F.3d 491, 499 (5th Cir. 2012) (citations
omitted). “Substantial evidence is defined as evidence of such quality and weight that
reasonable and fair-minded men in the exercise of impartial judgment might reach different
conclusions.” Threlkeld v. Total Petroleum, Inc., 211 F.3d 887, 891 (5th Cir. 2000) (citing
Gaia Techs. Inc. v. Recycled Products Corp., 175 F.3d 365, 374 (5th Cir. 1999)).
13
Goodner v. Hyundai Motor Co., Ltd., 650 F.3d 1034, 1039 (5th Cir. 2011);
Abraham, 708 F.3d at 620.
14
Price v. Marathon Cheese Corp., 119 F.3d 330, 333 (5th Cir. 1997) (citations
omitted).
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III.
Plaintiffs asserted a design defect claim, which required them to
prove: “(1) the product was defectively designed so as to render it
unreasonably dangerous; (2) a safer alternative design existed; and (3) the
defect was a producing cause of the injury for which the plaintiff seeks
recovery.”15 A safer alternative design exists if an alternative design “would
have prevented or significantly reduced the risk of the claimant’s personal
injury, property damage, or death without substantially impairing the
product’s utility,” an element Honda calls “risk-utility.”16 At trial, Plaintiffs
offered Ziejewski’s and Hannemann’s testimony as evidence of these
elements. Honda contends the district court erred by failing to exclude
Plaintiffs’ two experts. We disagree.
A.
This Court applies the Federal Rules of Evidence (“FRE”) to
evaluate questions of admissibility, reliability, and competency of evidence.17
Regarding expert evidence, the district court serves as a gatekeeper to ensure
that scientific evidence is relevant and reliable.18 Parties offering expert
testimony must prove the expert is qualified and will offer relevant and
reliable testimony.19
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15
Goodner, 650 F.3d at 1040 (citing Timpte Indus., Inc. v. Gish, 286 S.W.3d 306, 311
(Tex. 2009)).
16
TEX. CIV. PRAC. & REM. CODE § 82.005(b)(1).
17
Wackman v. Rubsamen, 602 F.3d 391, 400 n.2 (5th Cir. 2010).
18
Daubert, 509 U.S. at 590–93; Atlantic Specialty Ins. Co. v. Porter, Inc., 742 F.
App’x 850, 852 (5th Cir. 2002).
19
Daubert, 509 U.S. at 590–91.
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Under FRE 702, a person may be “qualified as an expert by
knowledge, skill, experience, training, or education” if:
(a) the expert’s scientific, technical, or other specialized
knowledge will help the trier of fact to understand the evidence
or to determine a fact in issue;
(b) the testimony is based on sufficient facts or data;
(c) the testimony is the product of reliable principles and
methods; and
(d) the expert has reliably applied the principles and methods
to the facts of the case.20
Courts deciding whether to admit expert testimony may also consider
additional relevant factors.21 In Daubert v. Merrell Dow Pharmaceuticals, Inc.,
the Supreme Court offered the following, non-exclusive list of factors that
courts may use when evaluating the reliability of expert testimony: (1)
whether the expert’s theory or technique can be or has been tested; (2)
whether the theory or technique has been subjected to peer review and
publication; (3) the known or potential rate of error of the challenged
method; and (4) whether the theory or technique is generally accepted in the
relevant scientific community.22 The courts must focus “on [the expert’s]
principles and methodology, not on the conclusions that they generate.”23
However, the Daubert factors are not “a definitive checklist or test,” and the
_____________________
20
FED. R. EVID. 702.
21
Daubert, 509 U.S. at 594.
22
Id. at 593–94.
23
Id. at 595.
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analysis is “flexible.”24 As a result, the district court has discretion under
Daubert to allow or exclude experts from testifying.25
B.
Before trial, Honda moved to exclude Ziejewski and Hannemann on
several grounds. First, Honda argued Ziejewski’s testimony was not reliable
because he “failed to perform a risk-utility analysis” independently and,
instead, relied on and co-signed Neil Hannemann’s alternative designs
analysis. Second, Honda said Hannemann’s testimony should be excluded
because he also failed to perform a risk-utility analysis. Finally, Honda
claimed that Hannemann offered no evidence the proposed alternative
designs were economically feasible.
The district court denied both motions. Regarding Ziejewski, the
court held that Honda’s complaint “attacks the merits of the design defect
claim,” not Ziejewski’s reliability as an expert witness. In other words, the
court explained that Ziejewski’s testimony was one way Plaintiffs hoped to
establish the existence of a safer alternative design, but it was not the only
method available, and Ziejewski’s testimony did not itself need to meet the
preponderance standard to be admissible. Instead, the jury would decide how
much, if any, weight to assign his testimony.
The district court also denied Honda’s motion to exclude
Hannemann, finding Hannemann sufficiently reliable. The district court
noted that although Hannemann did not perform his own crash tests,
Hannemann “rests his opinion on tests performed by reputable agencies,
including the Insurance Institute for Highway Safety, the National Highway
_____________________
24
Id. at 594–95.
25
St. Martin v. Mobil Expl. & Producing U.S., Inc., 224 F.3d 402, 405 (5th Cir. 2000)
(citations omitted).
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Safety Administration, and other vehicle manufacturers.” The court also
considered that Hannemann inspected the accident vehicle, reviewed
literature and patents, and “relied on the automotive literature on testing
reverse geometry belts with a load limiter without serious neck injuries and
reviewed automotive literature and Honda’s internal documents which
showed that a specific type of seatbelt would be effective means to prevent
far-side impacts.” Ultimately, the district court held that Honda’s
“argument attacks the merits of the design defect” claim, as it “rests on an
element that Plaintiffs must prove under Texas law to succeed on a design
defect claim—that a safer alternative existed.” Thus, the court determined
that, despite Honda’s critique of Hannemann’s methods and conclusions, it
was the jury’s province to “determine the weight and credibility, if any, to
assign to Hannemann’s opinion.”
C.
The district court did not abuse its discretion by denying Honda’s
motions to exclude the expert testimony from Ziejewski or Hannemann.26
On appeal, Honda makes two central arguments that the district court
erred by admitting Ziejewski’s testimony. First, Honda contends Ziejewski’s
_____________________
26
In addition, Plaintiffs argue that this Court should review the propriety of the
district court’s decision to admit the experts by reviewing the record in its entirety—
including post-Daubert testimony. They cite Hodges v. Mack Trucks for this proposition,
arguing this Court in that case conducted a “review of the record” to decide whether it was
manifestly erroneous to admit the expert testimony. Hodges, 474 F.3d at 195. This
interpretation is incorrect. The scope of the “record” considered by the Court in that case
is unclear. In fact, there is no evidence this Court reviewed post-Daubert testimony when
deciding whether the district court was correct in Hodges. And in Tanner v. Westbrook, this
Court reviewed a Daubert denial by considering only “the materials the trial court had
before it.” 174 F.3d 542, 546 (5th Cir. 1999), superseded in part by rule on other grounds, FED.
R. EVID. 103(a). Therefore, this Court will review the district court’s decision to admit the
experts’ testimony by considering only the evidence before the district court.
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testimony about the existence of “safer alternative designs” should have
been excluded because his opinions were conclusory and unsupported.
Specifically, because Ziejewski did not conduct a formal risk-utility analysis
and relied on Hannemann’s testing analysis instead of conducting his own,
Honda argues Ziejewski could not show that the proposed alternative designs
would have likely prevented the injuries. Second, Honda argues the district
court “did not analyze relevancy and reliability.”
These arguments are unconvincing. The district court did not abuse
its discretion when it found Ziejewski did more than “co-sign”
Hannemann’s claims. It analyzed the relevancy, reliability, and potential
helpfulness of Ziejewski’s report, which indicated that Ziejewski applied
principles of accident reconstruction, biomedical engineering, and body
kinematics to the facts of the case. The district court found, for example, that
Ziejewski applied his “education, training, and experience” in body
kinematics, “engineering principles and methodologies generally accepted,”
and biomechanics to explain that “[t]he alternative seatbelt designs would
not have allowed Mr. Kim’s shoulder slip-out and would have prevented
excursion of his head, neck, and upper torso from the safety of his seat,” and
that “[a] center airbag, side impact containment, and offset packaging would
have provided an effective means of preventing occupants’ head impact with
one another.” Moreover, Honda’s complaint that Ziejewski failed to conduct
a formal risk-utility analysis speaks to a question of substantive law—not the
requirements of FRE 702.27 Ultimately, it is not difficult to imagine how these
findings could be helpful to the jury when assessing whether proposed
alternative designs would have prevented the injuries at issue.
_____________________
27
See infra Section IV (describing the substantive requirements for a product
liability defective design case). This requirement, however, is not part of the admissibility
analysis under FRE 702 or Daubert.
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Next, regarding Hannemann: on appeal, Honda makes three
arguments to support its claim that the district court abused its discretion in
admitting his expert testimony. Honda emphasizes Hannemann’s (1) failure
to perform a formal “risk-utility analysis” and urges that he (2) failed to
prove the alternative designs would have produced a better outcome in the
accident at issue. Honda also contends (3) Hannemann should have been
excluded because he “offered only conclusory opinions about the economic
feasibility of the proposed alternatives.”
These contentions are not persuasive given the high degree of
deference this Court gives to evidentiary rulings. First, Honda’s complaint
that Hannemann failed to conduct a formal risk-utility analysis is relevant to
the substantive requirements for relief, not the admissibility of expert
testimony. Second, Hannemann’s report included sufficient information for
the district court to find he could provide reliable testimony about whether
an alternative design could lead to a better outcome. The report was thorough
and relied on Hannemann’s 40 years of experience in automotive
engineering, design, and crash testing. Hannemann detailed how he
personally inspected the Kims’ vehicle, followed accepted scientific testing
methods, relied on reputable agencies’ methods of testing, and applied his
engineering judgment to the facts of the case. As such, the district court did
not commit “manifest error” in finding Hannemann met FRE 702.
Hannemann’s perspective on automotive design and expertise in engineering
could help the jury understand the nature of the accident; the testimony is
based on sufficient facts and data (e.g., inspecting the vehicle, reliable
studies, and relevant tests); and he used and applied reliable and accepted
methods of engineering analysis to form his conclusions.
Third, we reject Honda’s contention that Hannemann provided only
conclusory evidence of economic feasibility. Hannemann said reverse
geometry seatbelts likely cost “next to nothing” if a manufacturer has
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“already committed to an ABTS [all belts to seat] seat design,” which is used
in the rear seats of other vehicles.28 And Honda’s corporate representative
stated in his deposition that “the Honda airbag would cost less than the one
[General Motors] made in 2013.” Thus, Honda cannot plausibly claim that
Hannemann offered only conclusory statements when its own expert
confirmed the substance of Hannemann’s statement. At bottom,
Hannemann had decades of experience in automotive engineering and
applied that expertise to opine that the alternative designs would have
reduced the likelihood of injury in this accident and would not be cost
prohibitive, testimony meeting FRE 702 and Daubert.
IV.
Next, Honda argues the district court erred by denying its JMOL
motion. Again, we disagree.
To succeed on a design defect claim in Texas, “a plaintiff must prove
that (1) the product was defectively designed so as to render it unreasonably
dangerous; (2) a safer alternative design existed; and (3) the defect was a
producing cause of the injury for which the plaintiff seeks recovery.” 29 A
safer alternative design refers to:
a product design other than the one actually used that in
reasonable probability:
(1) would have prevented or significantly reduced the risk of
the claimant’s personal injury, property damage, or death
without substantially impairing the product’s utility; and
(2) was economically and technologically feasible at the time the
product left the control of the manufacturer or seller by the
_____________________
28
Hannemann provided more exact costs for each alternative design at trial.
29
Goodner, 650 F.3d at 1040.
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application of existing or reasonably achievable scientific
knowledge.30
In its initial JMOL motion and its motion for a new trial, Honda argued
Plaintiffs failed to prove all elements of their design defect claims. On appeal,
Honda has focused its argument on the district court’s denial of its JMOL
motion and, specifically, on whether there was sufficient evidence to
establish a safer alternative design. Honda attacks both prongs of the “safer
alternative design” analysis, arguing: (1) “Plaintiffs’ two liability experts
offered no ‘substantial’ evidence as support for a safer alternative design, but
instead (a) did not perform the required risk-utility analysis, and (b)
ultimately offered only their mere ipse dixit about whether the two
alternatives would have prevented the injuries in this crash[;]”31 and (2)
Hannemann provided only conclusory opinions about the economic
feasibility of the two alternative designs—a center airbag and a reverse
geometry seatbelt.
A.
Honda argues there was insufficient evidence for the jury to find that
either alternative design would prevent or significantly reduce the risk of
Plaintiffs’ personal injuries without substantially impairing the CR-V’s
utility. Honda first asserts that Texas law required Plaintiffs to conduct a
formal “risk-utility analysis” and then claims there was insufficient evidence
that either design—the center airbag or the reverse geometry seatbelt—
would have likely reduced the risk of injury.
_____________________
30
TEX. CIV. PRAC. & REM. CODE § 82.005(b) (emphasis added).
31
Although Honda did not contest the feasibility of either alternative design (center
airbags or reverse geometry seatbelts), it did not stipulate to feasibility, so the Plaintiffs still
had the burden to introduce sufficient evidence of feasibility at trial.
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1.
First, Honda argues that Casey v. Toyota Motor Engineering &
Manufacturing North America, Inc.32 added what is essentially a sub-
requirement to prong (1): that the expert “perform a risk-utility analysis of
the proposed alternative.” This argument overstates Plaintiffs’ burden.
Texas law requires plaintiffs demonstrate that the “safety benefits
from [the] proposed design are foreseeably greater than the resulting costs,
including any diminished usefulness or diminished safety.”33 But this Court
has held that “[t]he burden is minimal: plaintiffs need only offer ‘some
evidence that their alternative design . . . would not have introduced other
dangers of equal or greater magnitude.’”34 In Sims v. Kia Motors of America,
Inc., for example, this Court analyzed an expert’s statements—“the use of a
fuel tank shield would not have hindered the performance of the vehicle” and
“the benefits [of the fuel tank shield] far outweigh any impairment in
utility”—along with the expert’s acknowledgement of a potential minor
impairment, and said these statements would “probably meet [the] minimal
burden to show the risk-utility of the alternative designs.”35 By contrast,
alternative designs that would “eliminate whole categories of useful products
from the market” in the name of increasing safety would likely be
insufficient.36 Thus, Plaintiffs did not need to conduct a formal risk-utility
analysis to prove there was a safer alternative design available; they needed
_____________________
32
770 F.3d 322 (5th Cir. 2014).
33
Id. at 331 (citing Hodges, 474 F.3d at 196) (cleaned up).
34
Sims v. Kia Motors of America, Inc., 839 F.3d 393, 406 (5th Cir. 2016) (internal
citations omitted).
35
Id.36
Caterpillar, Inc. v. Shears, 911 S.W.2d 379, 385 (Tex. 1995).
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only to offer some evidence the center airbag or reverse geometry seatbelt
would not have significantly increased the risk of injury or impaired utility.
2.
Second, Honda argues Plaintiffs put forth insufficient evidence that
the center airbag design would have likely reduced the risk of injuries in this
crash without overly sacrificing the CR-V’s utility. This argument is not
persuasive. There was sufficient evidence for the jury to find Honda liable for
not installing a center airbag. Of course, that other manufacturers have
installed the missing reverse geometry seatbelt and center airbag is itself
evidence of risk-utility. But there is more.
Hannemann offered sufficient evidence of the center airbag’s
promise—as well as its relevant risks and potential impact on utility. He
testified the center airbag could be installed in the front of the car, on either
the driver’s or passenger’s side (or both). Hannemann further illustrated
how the center airbag would inflate and protect occupants in a far-side impact
such as the one that occurred in this case. Then, he showed how these
features would have reduced the risk of injury in this case by relying on work
and crash tests that General Motors and Takata performed when designing,
testing, and installing a front center airbag in their 2013 vehicles.
In particular, Hannemann testified that a side impact accident would
cause a front center airbag to “deploy[] outward initially” and then to “wrap
around the driver” as he moves into it, causing “cushioning between the
driver and front passenger” to prevent their heads from striking.
Importantly, Hannemann explained that this alternative design “would have
prevented [Su Min’s] serious injury” because the “configuration and
severity” of the accident were below the parameters of testing by the
Insurance Institute for Highway Safety, meaning that the crash should have
been “a survivable accident without serious injury.” And Hannemann
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explained (and Honda’s corporate representative admitted) that “prior to
the manufacturing of the 2014 Honda CR-V,” it did not “run a side impact
test with a far side crash test dummy in the test vehicle.” This testimony
provided a basis for the jury to find Honda did not sufficiently test or design
its CR-V to account for this accident, which should have survivable without
serious injury.
Next, Honda argues the General Motors testing on which
Hannemann relied was unreliable and insufficient for two reasons. First, it
argues the testing did not “correlate to the circumstances of the subject
accident,” and that, if anything, the testing showed only a “possible benefit”
in a “purely lateral” side impact such that the testing cannot support the
verdict. This argument is unconvincing. Plaintiffs presented evidence that
General Motors conducted multiple tests under different crash modes that,
by implication, addressed the circumstances of this crash, as it was “pretty
typical.” Thus, there was sufficient evidence for the jury to “conclude that
[General Motors] would not have designed, tested, patented, and equipped
its vehicles with a center airbag that would protect occupants from head-to-
head contact in just one crash mode.”
Second, Honda contends Hannemann could not rely on the General
Motors testing because he did not know the size, timing, or fill rate of the
airbag used in the studies. But this assertion also fails. Hannemann said the
airbag was “fairly tall” and extended “from the lowest part of the seat all the
way to the top,” while Honda’s own experts’ testimonies showed that the
center airbag in those tests would deploy and fill in about 61 milliseconds—
well before Ji Hun moved to the passenger’s side of the CR-V at
approximately 90-105 milliseconds. Moreover, Honda’s testing, as well as
Hannemann’s testimony, addressed the potential risk that the airbag would
not be fully tethered and would allow the driver’s head to slide past the airbag
into the passenger’s space.
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Lastly, Hannemann presented sufficient evidence about the utility of
the center airbag alternative design. He explained that installing the airbag
would not reduce the utility of the CR-V because “until there is a crash that
signals it . . . you wouldn’t even know it’s there.” Hannemann also
addressed concerns that occupants could be injured when the center airbag
inflates, citing his automotive engineering experience and General Motors’
testing and published articles. Honda’s expert agreed, explaining that
General Motors addressed these concerns by having the center airbag delay
shortly after the initial airbag deployment to avoid injuries.
In sum, Honda’s contentions that the center airbag evidence is
insufficient are meritless and address the weight of the evidence, not its
sufficiency. Honda raised these arguments during proceedings before the
district court. It failed to persuade the jury, the district court, and this Court.
3.
Third, Honda attacks the sufficiency of Plaintiffs’ evidence that a
reverse geometry seatbelt would, in reasonable probability, significantly
reduce the risk of Su Min’s injury without substantially impairing the CR-
V’s utility. This argument fails for reasons similar to Honda’s contentions
about the sufficiency of evidence of the center airbag design.
As the district court noted, “Hannemann and Ziejewski discussed in
detail the purpose and engineering behind reverse geometry seatbelts.” They
explained the relevant risks, the potential impact on utility, and the benefits
of the reverse geometry seatbelts. To start, the experts used demonstrations
and 3D animations to show the jury how reversing the direction of the
seatbelts—such that the shoulder belt crosses over the driver’s right
shoulder, and the passenger’s left shoulder—would “prevent[] the driver[]
from slipping out of the belt, and restrain[] them” during a far-side impact.
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Hannemann also testified that these alternative seatbelts have
undergone “a significant amount of testing” and have been installed on
Dodge Vipers, an experimental Honda vehicle, and in the rear seats of
BMWs. Although one of the tests supporting Hannemann’s opinion involved
a rollover and not a T-bone crash, Hannemann concluded that the reverse
seatbelt would still provide the same benefits in the Kims’ side-impact crash
because “the non-leading side occupant [in a rollover crash] . . . would be
similar to the person on the far side” of a side impact, as the same forces
would “make [the occupant] slip out of the belt.” Hannemann’s testimony
and the studies on which he relied provided sufficient evidence for the jury
to find that the reverse geometry seatbelt design would have prevented or
reduced the risk of Su Min’s injury. As the Plaintiffs explain:
To prevent or reduce the risk of the head-to-head contact that
caused Su Min’s injury, the reverse geometry seatbelt on the
driver’s side only needed to restrain Ji Hun’s upper torso just
enough to restrict his head from moving all the way into Su
Min’s passenger space. And the evidence established a
reasonable probability that a reverse geometry seatbelt would
have done just that, especially in light of Hannemann’s further
testimony that the “configuration and severity” of this
accident were below the parameters of IIHS’s testing and the
accident was therefore “survivable . . . without serious
injury.”
On appeal, Honda argues the reverse geometry seatbelts would impair
the CR-V’s utility because they could (1) cause neck injuries; (2) allow an
occupant to move toward the near-side impact; (3) be rejected by the public;
(4) cause the buckle to open in a near-side impact; or (5) require the
installation of all-belts-to-seat systems, which have their own disadvantages.
But there was sufficient evidence for the jury to find that all of these concerns
could be mitigated or outweighed by the benefits of the alternative design.
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First, Hannemann explained that load limiters can “eliminate” the
risk of neck injuries from these reverse geometry seatbelts. He also detailed
how the CR-V’s door panels and side curtain airbags would prevent
occupants from slipping out and protect them from near-side impacts, and
that conventional seatbelts do little to address this concern, so that “you’re
not really losing any protection” by installing reverse geometry seatbelts.
Furthermore, Hannemann noted that reverse geometry seatbelts have been
used for decades and that public rejection is not a significant risk because the
belts use “the same type of ergonomics” as conventional seatbelts. This
opinion was based on Hannemann’s engineering judgment and decades of
automotive design experience, as well as a published paper authored by
BMW in 1987 that describes increased belt usage from reverse geometry
seatbelts in backseats. Hannemann also addressed Honda’s fourth concern,
explaining that buckle designs have improved and that there have been no
reports of any issues with the buckles’ locations in BMW’s vehicles that have
reverse geometry seatbelts.37 Lastly, Hannemann addressed the potential
disadvantages of an all-belts-to-seat system (which is required to mount
reverse geometry seatbelts), explaining there were also significant
advantages—i.e., “[t]he seatbelt . . . moves with you as you adjust the seat”
while the belt remains in the “optimal location.” He also said these seats
have been produced since the late 1990s, and the risks associated with them
have been addressed.
Considering this evidence in the light most favorable to the Kims,
there is sufficient evidence for the jury to find that both the reverse geometry
seatbelt and the center airbag would be a safer alternative within the meaning
_____________________
37
Notably, Honda’s expert acknowledged the buckle is “designed to overcome
some compressive forces” and doubted it “would release from accelerations.”
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of § 82.005(b). Thus, the district court was correct to deny Honda’s motion
for a JMOL.
B.
Additionally, Honda challenges whether Plaintiffs provided sufficient
evidence for the jury to determine that either alternative design—the center
airbag or reverse geometry seatbelt—was economically and technologically
feasible.
After reviewing the record, this Court finds Plaintiffs presented
sufficient evidence to allow a reasonable juror to find there were feasible,
available alternative designs. Hannemann opined that Honda could install the
airbag in the CR-V because the center airbag had already been used in three
vehicles manufactured by General Motors (which Honda’s expert
acknowledged on cross-examination) and would cost only twenty to thirty
dollars per vehicle. Hannemann further testified that using reverse geometry
seatbelts was also feasible: the seatbelt had been tested in the 1970s and
1980s, and it had been used in the front seats of a late 1990s BMW vehicle (as
well as in the rear seat of a pre-2014 vehicle). Finally, Hannemann explained
that adding the seatbelts, along with the required all-belts-to-seat design,
would increase the cost of each vehicle by only about thirty dollars.
This evidence, considered in the light most favorable to the Plaintiffs,
is sufficient for the jury to find at least one of these alternative designs
economically and technologically feasible. While Honda may dispute the cost
of these alternatives, it may not plausibly claim there was insufficient
evidence.
V.
Finally, Honda argues the district court erred in finding the Texas
presumption of nonliability inapplicable and not instructing the jury about it.
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To be clear, Texas tort law provides a rebuttable presumption of nonliability
in certain product liability actions:
In a products liability action brought against a product
manufacturer or seller, there is a rebuttable presumption that the
product manufacturer or seller is not liable for any injury to a
claimant caused by some aspect of the formulation, labeling, or
design of a product if the product manufacturer or seller
establishes that the product’s formula, labeling, or design
complied with mandatory safety standards or regulations adopted
and promulgated by the federal government, or an agency of the
federal government, that were applicable to the product at the time
of manufacture and that governed the product risk that allegedly
caused harm.38
The last portion of the presumption—that there were federal
standards governing the product risk allegedly causing the harm—was the
only one disputed at trial. Meeting this element is a prerequisite to receiving
a jury instruction about the presumption: defendants are not entitled to the
instruction if they fail to establish “compliance ‘with mandatory [federal]
safety standards . . . that governed the product risk that allegedly caused the
harm.’”39 The task is identifying the product risk and any connection to
federal safety standards, as the Texas legislature’s purpose in enacting the
presumption was to address situations where “manufacturers and sellers
were being held liable in products liability cases even though the products at
issue complied with all applicable federal safety standards.”40
_____________________
38
TEX. CIV. PRAC. & REM. CODE ANN. § 82.008(a) (emphasis added).
39
Trenado v. Cooper Tire & Rubber Co., 465 F. App’x 375, 379 (5th Cir. 2012) (per
curiam) (unpublished) (citing TEX. CIV. PRAC. & REM. CODE § 82.008(a)).
40
Kia Motors Corp. v. Ruiz, 432 S.W.3d 865, 869 (Tex. 2014) (emphasis added).
Once the presumption is found applicable, it may be rebutted if plaintiffs show either “(1)
the mandatory federal safety standards or regulations applicable to the product were
inadequate to protect the public from unreasonable risks of injury or damage; or (2) the
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Treating the applicability of the presumption as a question of law, the
district court defined the product risk allegedly causing Plaintiffs’ injuries as
“the risk of injury from a far-side impact during a near-side collision,”
finding no federal standard applied (governed the product risk as defined by
the district court). The district court denied Honda’s requested jury
instruction.41
Honda agrees that, under the district court’s conception of the
product risk, there is no applicable federal standard. In other words, it does
not dispute that the presumption is inapplicable given the district court’s
definition of the product risk. Nonetheless, on appeal, Honda argues (1) the
jury, not the district court, should have decided whether the presumption
applied; and (2) the district court erred by defining the product risk narrowly.
After reviewing the statutory text, the precedent of this Court, and
Texas state court case law, this Court finds the district court committed no
_____________________
manufacturer, before or after marketing the product, withheld or misrepresented
information or material relevant to the federal government’s or agency’s determination of
adequacy of the safety standards or regulations at issue in the action.” TEX. CIV. PRAC. &
REM. CODE § 82.008(b).
41
Honda’s requested jury instructions read:
You are entitled to presume that American Honda is not liable for any
injury to the Plaintiffs if the evidence establishes that the 2014 Honda CR-
V complied with mandatory safety standards or regulations adopted and
promulgated by the federal government, or an agency of the federal
government, that were applicable to the 2014 Honda CR-V at the time of
its manufacture that governed the product risk that allegedly caused harm.
Plaintiffs may rebut the presumption by evidence establishing that (1) the
mandatory federal safety standards or regulations applicable to the product
were inadequate to protect the public from unreasonable risks of injury or
damage; or (2) the manufacturer, before or after marketing the product,
withheld or misrepresented information or material relevant to the federal
government’s or agency’s determination of adequacy of the safety
standards or regulations at issue in the action.
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error. The district court was correct to treat the instruction’s applicability as
a question of law, to define the product risk in a case-specific way, and to rule
the presumption inapplicable because no federal standard governed the
appropriately-defined product risk at issue.42
A.
To start, Honda’s assertion that the jury, not the court, should have
decided whether the presumption applies is meritless. Honda relies on three
intermediate appellate cases to support its contentions, but these arguments
are foreclosed by the Texas Supreme Court’s holding in Kia Motors
Corporation v. Ruiz, to which this Court must adhere.
Kia illustrates the principle that whether the statutory presumption is
applicable is a question of law.43 The Kia court thoroughly analyzed the
statute, the product risk, and potential federal regulations before holding that
no federal standard governed the product risk, such that the presumption was
inapplicable.44 Its discussion made no mention or insinuation that these
questions were fit for a jury. Moreover, the court decided to review the
applicability of the presumption de novo, further supporting the conclusion
_____________________
42
Parties have offered competing standards of review for these questions. Plaintiffs
assert this Court should apply an abuse of discretion standard, as this Court reviews
preserved claims of errors in jury instructions for an abuse of discretion. See Wright v. Ford
Motor Co., 508 F.3d 263, 268 (5th Cir. 2007). Honda argues the Court should apply two
standards: de novo review as to whether the presumption applies (considering the question
to be one of statutory interpretation) and abuse of discretion as to whether the district court
erred by not instructing the jury about the presumption. See, e.g., Janvey, 856 F.3d at 388(“Jury instructions are reviewed for abuse of discretion. . . . Instructions that hinge on a
question of statutory construction are reviewed de novo.”). Under either standard,
Honda’s arguments fail.
43
Kia, 432 S.W.3d at 869–74.
44
Id.
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that the question is one of law.45 Thus, Texas treats the question of whether
the presumption applies as one of law, and we must do so here.46
Moreover, this Court’s analysis in Wright v. Ford Motor Company
tacitly supports this conclusion.47 In Wright, this Court analyzed whether the
presumption was applicable and then explained that a “fact question as
_____________________
45
Id. at 869.
46
Although not binding on this Court, we address the three cases Honda cites
(erroneously) to support its contentions. First, Honda cites Trenado v. Cooper Tire Rubber
& Co., an unpublished case in this Circuit where the district court submitted a jury
instruction about the presumption that allowed the jury to decide whether it applied. 465
F. App’x at 378–80. But Trenado is not instructive: it does not speak to whether, as a matter
of law, it was correct for the jury to decide the statute’s applicability. Instead, the plaintiffs
failed to object on the ground that no federal standard governed the product risk, triggering
only a plain error review of that question. Id. This Court found it was not plain error to
submit the instruction because the product risk was expressly governed by a federal
standard.
Second, Honda misreads Hamid v. Lexus, where the Court of Appeals of Texas
held that “[u]nder the plain language of Section 82.008(a) . . . the threshold determination
of whether the presumption applies turns on the relevant product risk, not the particular
defect alleged by the plaintiff.” Hamid v. Lexus, 369 S.W.3d 291, 300 (Tex. App.—Houston
[1st Dist.] 2011, no pet.). Honda claims Hamid shows that the applicability of the
presumption can be a jury question because the court affirmed the jury instruction that
included the presumption. However, Honda overlooks that the question before the Texas
appellate court was whether the product risk or the product defect controls the applicability
of the presumption, not when the jury is to receive an instruction about the presumption or
what is fit for the jury to decide. Id. at 296–97. It is true that the trial court in Hamid
provided the jury with an instruction allowing it to decide whether the presumption
applied, but that decision is neither binding nor persuasive on this Court.
Third, Honda’s reliance on American Honda Motor Co. v. Milburn is misplaced. No.
05-19-0850-CV, 2021 WL 5504887, at *4 (Tex. App.—Dallas Nov. 24, 2021, pet. granted)
(mem. op.). In that case, the trial court did allow the jury to decide whether the
presumption was met; however, this unpublished opinion is not binding on this Court. Id.Moreover, the parties in Milburn did not assert on appeal that the question should have
been left for the courts, so the state court did not address that question. Id. at *12–17.
47
508 F.3d at 274.
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whether the presumption has been rebutted will be submitted to the jury.”48
This approach implies that whether the presumption is applicable is a
question of law for the court, and whether the presumption has been rebutted
is a question of fact for the jury.
B.
Honda further attacks the district court’s definition of the product
risk. Honda argues the product risk should have been defined as “the risk of
injury in a side-impact collision.” The district court rejected Honda’s
definition, opting instead for a more specific one: “the risk of injury from a
far-side impact during a near-side collision.” After reviewing Texas
precedent and this Circuit’s case law, we find no error in the district court’s
analysis.
This Court has addressed the presumption directly in two cases, and
in each, the Court has looked carefully at how the issue and risks were framed
throughout the litigation. First, in Wright, the Plaintiffs filed a product
liability wrongful death and survival action against Ford, arguing that a design
and manufacturing defect caused their son’s death. 49 The Court found that
“[t]he risk that caused the harm and forms the basis of the Wrights’ suit is
the rear blindspot” of the vehicle.50 Second, this Court in Trenado considered
the different federal standards at issue, and how the witnesses and parties
_____________________
48
Id. (second emphasis added); see also Trenado, 465 F. App’x at 379 (noting that a
defendant is not entitled to the presumption unless the defendant illustrates adherence to
“mandatory [federal] safety standards . . . that governed the product risk that allegedly
caused the harm.”). Wright and Trenado suggest that the court, not the jury, must decide
whether a defendant is entitled to a jury instruction that provides the rebuttable
presumption.
49
508 F.3d at 266.
50
Id. at 270.
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framed the relevant risks and defects, in order to properly define the product
risk. 51 It found the risk that caused the harm was “tire failure” related to
durability, rather than the Plaintiff’s suggestion of the tire’s “undue
propensity for late-life catastrophic tread separation failure.”52
District courts in this Circuit have also conducted a fact-intensive
inquiry to identify the relevant product risk, and they have considered the
nature and purposes of different federal standards at issue when determining
how to define the risk. In Hinson v. Dorel Juvenile Group, Inc., the court held
the product risk causing injuries to Hinson’s child riding in a forward-facing
car seat was the “‘potential risk of enhanced and serious injury to very young
children resulting from being positioned in the subject forward facing car
seat’ as opposed to a rear-facing car seat” instead of “injury for a child in
forward versus rear-facing car seats, as well as the seating criteria for that
risk.”53 And in Ramos v. Stellantis North American, the court held the product
risk was “fire spread[ing] into the passenger compartment at a rate that
prevented the occupants from safely exiting the vehicle” rather than “fire
entering the vehicle from outside via the rear vent flap.” 54
Texas courts have also preferred case-specific conceptions of product
risk. In Kia, a Texas Court of Appeals reviewed the legislative history of the
statute and held that the legislature did not intend to create overly broad
constructions of risk.55 In doing so, it determined that the product risk in the
_____________________
51
465 F. App’x at 380. Notably, this Court in Trenado applied only a plain error
standard of review.
52
Id. at 379–81.
53
No. 2:15-CV-713-JRG-RSP, 2016 WL 3361480, at *2–3 (E.D. Tex. June 9, 2016).
54
No. 2:21-CV-00099, 2022 WL 3595140, at *11 (S.D. Tex. Aug. 2, 2022).
55
348 S.W.3d 465, 471–475 (Tex. App. 2011), rev’d on other grounds, 432 S.W.3d
865 (Tex. 2014).
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case was “the failure of a frontal airbag to deploy” and not the broader “risk
of occupant injury in a crash.”56 It adopted a case-specific description of the
risk that specified how a person may be harmed by a design defect.57
Case-specific definitions of the product risk also comport with the
statutory language, which calls for the court to consider the specific “product
risk that allegedly caused harm” in a given action. 58 As explained in Kia: “the
plain language of [S]ection 82.008 requires that a safety regulation govern
product risk, not a particular product defect,” and the court “must closely
examine both the product risk arising from an alleged design defect and the
parameters of the regulation at issue in evaluating whether the
manufacturer’s compliance with that regulation entitles it to a presumption
of nonliability to an injured claimant.”59
Kia, as well as other case law previously discussed, support the district
court’s fact-specific definition of product risk. Indeed, characterizing the risk
as “injury in a side-impact collision” (as Honda requests) disregards the crux
of this case: Plaintiffs presented unrefuted evidence that the side-impact
collision itself was not the cause of Su Min’s injuries, and that restraint
systems addressing the risk of side-impact collisions (e.g., the side structure,
the side airbags, the door panel, and the passenger’s seatbelt) performed
properly and were not defective. Rather, the injuries were the result of a far-
side impact—Ji Hun’s head hitting Su Min’s head. These injuries align
closely with the district court’s careful description of the product risk.
Moreover, characterizing the risk as broadly as Honda argues would
_____________________
56
Id.57
Id.58
TEX. CIV. PRAC. & REM. CODE § 82.008(a).
59
432 S.W.3d at 873–74.
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erroneously allow the presumption “to apply in every case involving any type
of side-impact collision, regardless of plaintiff’s alleged harm,” in direct
contradiction to the text of the statute that emphasizes a consideration of the
plaintiff’s harm in every application. Finally, it signifies that before this
accident other manufacturers had seen this risk and made the needed
changes—that is, the industry, Honda apart, had seen the very risk that
brought the horrific injuries here.
C.
After defining the product risk to reflect the cause of harm and the
specific facts at issue here, the next step in the analysis is to consider whether
there is a federal regulation or standard that governs the risk. The answer is
no.
Kia is instructive. After first defining the product risk narrowly, the
Texas Supreme Court then sought an equally specific federal standard that
would govern that risk.60 It found, ultimately, that “[n]othing in [the federal
standard] suggests a purpose of reducing the likelihood of an air bag’s failure
to deploy under circumstances in which everyone agrees it should have
deployed,” so no federal standard governed the product risk, and the
presumption thus did not apply.61
Here, the district court was correct to conclude that no federal
standard governed the product risk of a far-side impact injury during a side-
impact collision. As the district court observed, “every single expert who
testified at trial . . . agreed” that no federal regulation or standard is
“designed to protect the near-side occupant in a collision from far-side
_____________________
60
Id.
61
Id. at 874.
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impact injuries.” This assessment even includes Honda’s corporate
representative, who agreed on cross-examination that there are no
government standards requiring manufacturers to design technologies
addressing countermeasures for far-side impact injuries or to address the risk
of occupant-to-occupant injuries in a side impact. Despite these admissions,
the district court still evaluated four potential federal standards and ruled that
none “govern the product risk at issue.” Specifically, it engaged in a
comprehensive analysis of Federal Motor Vehicle Safety Standards 208, 210,
211, and 214 before finding that none addressed the risk of a far-side impact
injury in a side-impact crash; instead, they were focused on, inter alia, seat
belt failure, front-crashes, assembly anchorages, and side doors.
Because there is no applicable federal standard that applies to the
properly defined product risk, the district court properly rejected the
instruction about the presumption.
*****
Honda attempts to escape this jury verdict by arguing the district
court erred in three ways: by admitting Plaintiffs’ experts, denying its JMOL
motion, and denying its proposed instruction about the nonliability
presumption. But it is incorrect on all fronts. The Plaintiffs’ experts based
their opinions on reliable methodologies and provided relevant, helpful
testimony. As such, there was sufficient evidence for the jury to find Honda
liable for the Kims’ injuries. The district court’s application of the Texas
statutory presumption of nonliability was also faithful to the statutory text,
the precedent of Texas, and the precedent of this Court. We AFFIRM.
30