Split of Authority on Admissibility of Industry Custom Evidence in Design Defect Cases to Soon Be Resolved

Apr 27, 2017 | Topic: Product Liability

There is currently a split of authority among the California Courts of Appeal concerning the extent to which evidence of industry custom is admissible in strict product liability actions to prove or disprove the existence of a design defect.

One line of cases holds that evidence of industry custom and practice is always inadmissible in a strict products liability action to prove that a product was not (or, presumably, was) defective in design.  (See Buell-Wilson v. Ford Motor Co. (2006) 141 Cal.App.4th 525; McLaughlin v. Sikorsky Aircraft (1983) 148 Cal.App.3d 203; Grimshaw v. Ford Motor Co. (1981) 119 Cal.App.3d 757; Titus v. Bethlehem Steel Corp. (1979) 91 Cal.App.3d 372.)  The holdings in these cases are largely based on the differences between negligence and strict liability, with the thought being that industry custom should be inadmissible in a strict liability case where the jury’s focus is properly directed to the condition of the product itself, and not to the reasonableness of the manufacturer’s conduct.

Another line holds that compliance with industry standards is an appropriate consideration under the risk-benefit test and is admissible.  (Howard v. Omni Hotels Mgmt. Co. (2012) 203 Cal.App.4th 403.)  The Howard court found that when a plaintiff alleges a design defect in a strict product liability action, any evidence of compliance with industry standards—while not a complete defense—is not irrelevant.  Rather, this type of evidence is properly taken into account through expert testimony as part of the design defect balancing process.  Howard distinguished the other line of cases as only precluding a “complete defense” based on this type of evidence.

This split of authority was recently addressed by Kim v. Toyota Motor Corp. (2016) 243 Cal.App.4th 1366.  The Kim court was not persuaded by either line of cases and opted for a middle ground.  Specifically, the court concluded that evidence of industry custom and practice may be relevant and, in the discretion of the trial court, admissible in a strict products liability action, depending on the nature of the evidence and the purpose for which the party seeking its admission offers the evidence.  Kim recognized that industry custom may relate to certain risk-benefit factors and reflect legitimate, independent research and practical experience regarding the appropriate balance of product safety, cost, and functionality.  But the court also recognized that it may not always be relevant, and must be tempered against other evidentiary concerns, such as the risk of undue prejudice and confusion of the issues.  For example, the court stated evidence that other manufacturers did not incorporate certain safety features would not be relevant to the “likelihood the danger would occur” risk-benefit factor because all manufacturers may be producing an unsafe product.

In April of last year, the California Supreme Court granted a petition for review in Kim to resolve this split and the matter has been fully briefed since December.  Hopefully, product liability attorneys will soon have more clarity and certainty on this issue moving forward.