TOYOTA MOTOR CORPORATION, TOYOTA MOTOR SALES, U .S .A ., INC . ; TOYOTA MANUFACTURING CANADA, INC . ; AND OXMOOR AUTO INC ., D/B/A OXMOOR TOYOTA V YU HSIA GREGORY AND WILLIAM G . GREGORY
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AMENDED : JUNE 14, 2004
RENDERED : MAY 20, 2004
TO BE PUBLISHED
,$uyrrnmt (9ourf of ~mfurkv
2001-SC-0966-DG
TOYOTA MOTOR CORPORATION,
TOYOTA MOTOR SALES, U .S.A ., INC . ;
TOYOTA MANUFACTURING CANADA, INC . ;
AND OXMOOR AUTO INC., D/B/A
OXMOOR TOYOTA
APPELLANTS
ON REVIEW FROM COURT OF APPEALS
2000-CA-001042
JEFFERSON CIRCUIT COURT NO. 96-CI-003331
V
YU HSIA GREGORY AND
WILLIAM G . GREGORY
APPELANTS
OPINION OF THE COURT BY JUSTICE GRAVES
REVERSING
On June 8, 1995, Appellee, Yu Hsia Gregory, was involved in a minor automobile
accident wherein her 1993 Toyota Corolla collided with a small Isuzu moving van .
Gregory's left arm was directly over the airbag module when it deployed, resulting in
fractures to her radius and ulna, a fractured nasal bone, a dislocated tooth, seconddegree burns to her forehead and cheek, and lacerations and contusions to her face
and chest. .
Gregory subsequently filed suit in the Jefferson Circuit Court against Appellant,
Toyota Motor Corporation, alleging claims for strict liability based on design and
manufacturing defects, misrepresentation, failure to warn, and breach of warranty.
Gregory argued that the airbag in her Toyota Corolla deployed too aggressively
resulting in her injuries, and also that Toyota failed to adequately warn her of the
potential serious injuries caused by airbag deployment .
At trial, Gregory's expert, William Broadhead, a mechanical and safety restraint
engineer, testified that he compared the Toyota airbag system with a Honda airbag
system, and determined that the Honda's "rise rate" - the measurement of the pressure
released by the airbag inflator over time (milliseconds) - was significantly lower than the
Corolla's. Broadhead concluded that at the time of the manufacture of the Corolla
airbag system, the technology was available to produce an airbag system that would not
have caused the injuries sustained by Gregory.
To rebut Broadhead's opinions, one of Toyota's experts, Robert Gratzinger
compared the Corolla airbag inflator with those of 35 other vehicles by various
manufacturers . Gratzinger concluded that the deployment characteristics of Toyota's
system were usual and customary and, in fact, state of the art, rather than unreasonably
dangerous . Gratzinger stated that the inflation rate of the Corolla airbag was in the low
average of all of the vehicles tested . Over Gregory's objection, the trial court admitted
what is now referred to as the "Gratzinger Report."
At the close of evidence, the trial court instructed the jury, in part, that to return a
verdict in favor of Gregory, it had to find that : (1) the Corolla airbag was defectively
designed and unreasonably dangerous ; (2) the defective design existed at the time of
manufacture; (3) an ordinarily prudent manufacturer of similar vehicles would not have
put the Corolla on the market in that condition; (4) the defective condition was a
substantial factor in causing Gregory's injuries; and (5) that Gregory had "proposed a
feasible safer alternative design ."
The jury returned a verdict in favor of Toyota . Gregory appealed and the Court of
Appeals subsequently reversed the trial court on the grounds that the trial court erred
by: (1) admitting into evidence the results of Gratzinger's testing of the manufacturers'
airbag inflators because the testing did not constitute a statistically valid sample ; and (2)
improperly instructing the jury on strict liability in a design defects case . This Court
thereafter granted discretionary review .
I . ADMISSIBILITY OF EXPERT TESTIMONY BY ROBERT GRATZINGER
Prior to trial, Toyota's expert, Robert Gratzinger conducted extensive testing of
airbag inflators from a wide variety of different automotive vehicle models. Gratzinger
explained at trial that his intent in testing a wide variety of inflators was to demonstrate
the equally wide variety of inflation characteristics in airbags utilized by different
manufacturers, and to demonstrate the fallacy of arguing that any particular airbag
system is defective simply because it inflates more powerfully than the least powerful
system on the market.
Gratzinger tested 78 inflators from 26 different vehicle models from the late
1980's to the middle 1990's. The 26 vehicles included models manufactured by Audi,
BMW, Buick, Chevrolet, Dodge, Ford, Honda, Mazda, Mercedes, Mitsubishi, Nissan,
Saab, and Volvo. Gratzinger stipulated that the vehicles he selected for testing were
not intended to be a statistical cross-section or sample of the entire automotive industry .
The inflator testing was performed at facilities owned by an airbag supplier,
following a procedure published by the Society of Automotive Engineers ("SAE") entitled
"Airbag Inflator Ballistic Tank Test Procedure," Recommended Practice J2238 . This
published protocol is regularly followed and generally accepted throughout the
automotive industry . In fact, Gregory's expert, Broadhead, utilized the same protocol
when he tested two Honda inflators .
The data collected by Gratzinger was set forth in a lengthy written report which
was produced to Gregory's counsel well in advance of trial . The Gratzinger report
contained all of the computer-generated graphs with the maximum pressure and
maximum slope of each inflator tested . The same test results were compiled into two
bar charts that were introduced at trial as Defendants' Exhibits. The results showed that
some of Toyota's competitors utilized inflators which were more powerful than the
Corolla inflator, while others utilized inflators which were less powerful . The evidence
illustrated and supported Gratzinger's opinions that the deployment characteristics of
the airbag system in question were usual and customary and not unreasonably
dangerous, and further that the Corolla airbag system was in accordance with accepted
industry standards and met state-of-the-art automotive and engineering practices .
Prior to trial, Gregory filed a motion in limine' to exclude the admissibility of
Gratzinger's report and testimony, on the grounds that the data was intentionally
skewed to put the Corolla in the low average inflation rates, by including in the tests
vehicles having sizes, weights, and crash pulses very different from the Corolla's .
Because these factors are relevant to airbag design and effectiveness, Gregory argued
that the selection of vehicles for Toyota's test, including many vehicles not comparable
to the subject Corolla, failed to follow any scientific methodology, making the evidence
irrelevant and inadmissible pursuant to Daubert v. Merrill Dow Pharmaceuticals , 509
Gregory's motion did not request a KRE 104(a) hearing .
4
U .S . 579, 113 S.Ct. 2786, 125 L.Ed .2d 469 (1993) and Goodyear Tire and Rubber Co .
v. Thompson , Ky., 11 S .W .3d 575 (2000) .
Attached to Gregory's motion was the affidavit of a statistician and economics
professor, Babu Nahata, Ph .D . 2 Dr. Nahata concluded that the inflators tested by
Gratzinger were not selected in accordance with acceptable scientific methods because
they were not randomly selected from the relevant population, and therefore, the testing
was inappropriate, meaningless and no scientific and valid conclusions could be drawn
from it.
Toyota responded that the test results were valid because the test methodology
was scientifically reliable, and that the purpose of the testing was to illustrate
Gratzinger's previously disclosed opinions, not to prove any statistical facts. The trial
court denied the motion to exclude Gratzinger's testimony, ruling that Gregory's
objections to the evidence went to its weight, not its admissibility . The trial court
observed that Gratzinger was subject to cross-examination on the differences between
the Corolla and many of the vehicles tested .
This Court has held that abuse of discretion is the proper standard of review of a
trial court's ruling on the admissibility of expert testimony . Farmland Mutual Insurance
Co . v. Johnson, Ky., 36 S.W .3d 368, 378 (2000) ; Goodyear Tire , supra , at 577-78 ; see
also General Electric Co. v. Joiner , 522 U.S . 136, 143, 118 S.Ct . 512, 518, 139 L.Ed.2d
508 (1997). The test for abuse of discretion is whether the trial court's decision was
arbitrary, unreasonable, unfair or unsupported by sound legal principles . Goodyear
Tire , supra , at 581 . In Sand Hill Energy, Inc. v. Ford Motor Co . , Ky., 83 S .W .3d 483, 9
(2002), vacated on other grounds by Ford Motor Co. v. Smith , 538 U .S . 1028, 123 S.Ct.
2
Dr . Nahata had no involvement in this case other than the submission of the affidavit in support of
Gregory's motion in limine . He was never disclosed as a witness, was not deposed, and did not testify at
trial .
5
2072 (2003), we noted the considerable breadth of discretion possessed by trial courts
in performing their gate keeping function under KRE 702, and emphasized that a
reviewing court must "give great deference to the trial court's ruling and reverse only in
circumstances of clear abuse."
When faced with a proffer of expert testimony under KRE 702, the trial court's
task is to determine whether the expert is proposing to testify to scientific, technical or
other specialized knowledge that will assist the trier of fact to understand or determine a
fact in issue . Daubert , supra , at 589-92, 113 S .Ct. at 2794-2796 ; Goodyear Tire, supra,
at 578 . This calls upon the trial court to assess whether the proffered testimony is both
relevant and reliable . Id . The consideration of relevance has been described as one of
fit, while the consideration of reliability entails an "assessment into the validity of the
reasoning and methodology upon which the expert testimony is based ." Id . The central
inquiry into the admissibility of expert testimony is therefore "an assessment of whether
the reasoning or methodology underlying the testimony is scientifically valid and
whether that reasoning or methodology properly can be applied to the facts in issue."
Daubert , supra, at 592-593, 113 S.Ct. at 2796; Goodyear Tire , supra, at 581 . This
Court first adopted Daubert in Mitchell v. Commonwealth , Ky., 908 S.W. 2d 100 (1995).3
In Goodyear Tire, supra , we followed Kumho Tire Company, Ltd . v. Carmichael , 526
U .S . 137, 119 S .Ct. 1167, 143 L.Ed .2d 238 (1999), and held that the Daubert analysis
applies to all expert testimony, not just scientific testimony .
3 Mitchell was overruled in Fugate v. Commonwealth , Ky., 993 SW .2d 931 (1999), but
only as to the case-specific holding in Mitchell that the admissibility of DNA evidence in
a criminal case should be determined on a case-by-case basis . Fu_yate held that the
PCR and RFLP methods of DNA analysis are so well accepted that they are
presumptively admissible under Daubert . _Id . at 937.
6
Daubert and Goodyear Tire provide a non-exclusive list of factors to be
considered by the trial court when determining the admissibility of an expert's proffered
testimony :
(1) whether the theory or technique can be and 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 in using a particular scientific
technique and the existence and maintenance of standards controlling the
technique's operation ; and
(4) whether the theory or technique has been generally accepted in the particular
field .
Daubert, supra, at 593-94, 113 S.Ct. at 2796-2797 ; Goodyear Tire , supra , at 578-79 .
The Daubert analysis is a flexible one, and the trial court may apply any or all of the four
Daubert factors when determining the admissibility of any expert testimony :
In other words, a court may consider one or more or all of the factors
mentioned in Daubert , or even other relevant factors, in determining the
admissibility of expert testimony . The test of reliability is flexible and the
Daubert factors neither necessarily nor exclusively apply to all experts in
every case .
Johnson v. Commonwealth , Ky., 12 S .W.3d 258, 264 (2000) .
Evidence of testing comparable products is relevant in a design defect case.
Under Kentucky product liability law, a defendant may present evidence of other
manufacturers' designs and how they perform, so that the jury can have a context for
evaluating the design of the defendant's product and the reasonableness of the
defendant's efforts . See Jones v . Hutchinson Manufacturing , Inc . , Ky., 502 S.W .2d 66
(1973) (evidence of industry practice and designs utilized by other manufacturers
admissible in product liability case) ; McKee v. Cutter Laboratories . Inc . , 866 F.2d 219,
224 (6th Cir. 1989) (compliance with industry custom is evidence of non-negligence
under Kentucky law, citing Jones) .
Gratzinger's testimony is admissible under Daubert. The testing of the individual
inflators was performed in accordance with a published, peer reviewed, unquestionably
scientific and highly reliable protocol . It has little, if any, error rate and is generally
accepted in the field of automotive engineering . Gregory's expert, Broadhead, even
agreed that inflator test results are scientific engineering measurements . Further,
contrary to the Court of Appeals conclusion, this was not statistical evidence . In other
words, Toyota did not present this evidence to prove a fact based upon statistics.
Rather, the jury was repeatedly informed that no attempt was made to present statistical
averages or the Corolla's percentile rank within the industry. Thus, the Court of Appeals
erroneously added an unprecedented new factor to the Daubert analysis : the
requirement that expert testimony, not presented to prove a statistical fact, must
nonetheless be derived from a statistically valid sample for admission at trial .
Furthermore, the inflator testing results were relevant because airbag inflation
characteristics were placed squarely at issue by Gregory and her expert . The testing
was intended to rebut Broadhead's testimony comparing the deployment characteristics
of the Corolla inflator to just one other inflator, the Honda inflator . Gratzinger's testing
illustrated his opinions that : (1) reasonable manufacturers can and do utilize inflators
with different deployment characteristics, (2) Toyota's design was not atypical of
designs used throughout the industry, and (3) the Corolla was not defective solely
because its air bag inflated more rapidly than the Honda airbag .
Criticism of Gratzinger's selection of the inflators he tested goes to the weight of
the evidence, not its admissibility. There was no risk that the jury would be misled or
confused because the results were admitted into evidence in the form of charts which
were easy to read and understand . The jury was able to discern and consider for itself
any differences in the types and sizes of the vehicles whose inflators were tested . "The
trial court was aware of the difference between its role as gatekeeper and the jury's role
in determining the weight evidence should have ." Sand Hill Energy, Inc. , supra .
II . JURY INSTRUCTIONS
The trial court's design defect instruction required proof of a feasible safer
alternative design as a prerequisite to a verdict in Gregory's favor. During a pretrial
hearing on the admissibility of the inflator testing, Gregory's counsel acknowledged on
the record her client's burden of proving an alternative design by stating, "Part of our
proof, we have to prove there was an alternative design. The Honda had it in 1991 .
And that's part of our burden of proof in this case, to prove the alternative design ."
Nonetheless, Gregory objected to the instruction, arguing that evidence of a feasible
alternative safer design is required only to overcome the presumption raised by statute
that a product was not defective if it conformed to what is termed the state of the art in
existence at the time of its manufacture . Toyota defended that finding of a feasible
alternative safer design was consistent with the RESTATEMENT (THIRD) OF TORTS :
Products Liability, §2(b) (1998), which provides that a product :
is defective in design when the foreseeable risks of harm posed by the
product could have been reduced or avoided by the adoption of a
reasonable alternative design by the seller or other distributor, or a
predecessor in the commercial chain of distribution and the omission of
the alternative design renders the product not reasonably safe .
In a crashworthiness or enhanced injury case, the plaintiff claims not that a
defect in a motor vehicle caused a collision, but that a defect in the vehicle caused
injuries over and above those which would have been expected in the collision absent
9
the defect . The claim, in essence, is that the design of the vehicle failed to reasonably
protect the occupant in a collision . These cases are also known as second impact
cases, the first impact being the vehicle's collision with another object, and the second
impact being the occupant's contact with interior structures or components of the
vehicle . See Wemyss v. Coleman , Ky., 729 S.W.2d 174, 179 (1987) (reference to
second impact cases in dicta) .
The elements of a prima facie crashworthiness claim are: (1) an alternative safer
design, practical under the circumstances ; (2) proof of what injuries, if any, would have
resulted had the alternative, safer design been used ; and (3) some method of
establishing the extent of enhanced injuries attributable to the defective design . See ,
Caiazzo v . Volkswagenwerk A .G . , 647 F.2d 241, 250 (2nd Cir. 1981) ; Huddell v.
Levin , 537 F.2d 726, 737-38 (3rd Cir. 1976) . While this Court has never explicitly
recognized a crashworthiness claim, Kentucky federal courts have adopted the three
elements outlined in Caiazzo and Huddell .
In McCoy v. General Motors Corp. , 47 F.Supp.2d 838, 840 (E . D. Ky. 1998), affd ,
179 F .3d 396 (6th Cir. 1999), a crashworthiness case alleging a defective airbag system,
the federal district court granted summary judgment in favor of the automobile company
because the plaintiff had failed to "offer proof of an alternative safer design, practicable
under the circumstances ." The district court again held that a plaintiff's proof in such
cases "must include competent evidence of some practicable, feasible, safer, alternative
design" in Gray v. General Motors Corp . , 133 F .Supp .2d 530, 535 (E .D . Ky. 2001), aff'd ,
312 F .3d 240 (6th Cir. 2002) (Plaintiff "failed to offer the required proof of a feasible,
alternative design or evidence to establish the extent of injuries he would have suffered
had an alternative design been utilized in General Motors' vehicles .")
10
Decisions of this Court are implicitly consistent with the Federal decisions, albeit
not specifically addressing the crashworthiness concept. In Jones v. Hutchinson
Manufacturing, Inc. , supra , a design defect case involving a grain auger, our
predecessor court concluded that "[p]roof of nothing more than that a particular injury
would not have occurred had the product which caused the injury been designed
differently is not sufficient to establish a breach of the manufacturer's or seller's duty as
to the design of the product ." Id . at 70-71 . In Ingersoll-Rand Co . v. Rice , Ky . App ., 775
S.W.2d 924 (1988), the Court of Appeals also concluded that a strict liability design
defect case involving an oil drilling rig could not be submitted to the jury without
sufficient proof that "a different design would have been feasible and would have
prevented [the plaintiff's] injury ." Id . at 929 . Recently, in Sand Hill Energy, Inc. , supra,
at 506-07, Justice Cooper in a dissenting opinion stated that Ford was entitled to a
directed verdict because the plaintiff failed to present any competent evidence of a
reasonable alternative design .
In Nichols v . Union Underwear Co . , Ky., 602 S.W.2d 429, 433 (1980), this Court
stated that the test is whether an "ordinarily prudent company . . . being fully aware of
the risk, would not have put [the product] on the market." An ordinarily prudent
company, with full awareness of the risks of its product, evaluates and weighs those
risks to decide whether to put the product on the market as designed. A decision not to
put the product on the market as designed leaves the company with two options - to
use a safer alternative design, or not to put the product on the market at all.
The Reporters' Note to the RESTATEMENT (THIRD) OF TORTS: Products
Liability, § 2 cmt. d (1998), observes that Kentucky applies a risk-utility test in design
defect cases. After examining Kentucky decisions as Nichols , supra, Rice , supra, and
Montgomery Elevator Co . v. McCullough , Ky., 676 S .W.2d 776 (1984), the Restatement
(Third) characterizes Kentucky as one of several jurisdictions that "apply a risk-utility
test for defective design, thereby implicitly requiring proof of a reasonable alternative
design without explicitly doing so." Id.
While the feasible, alternative, safer design provision in the trial court's
instruction may have been extraneous, it was certainly not erroneous or prejudicial .
Kentucky law, as stated in Jones, supra , and Rice , supra, stands for the proposition that
design defect liability requires proof of a feasible alternative design . Federal courts
applying Kentucky law in crashworthiness cases have reached the same conclusion .
Gray, supra ; McCoy , supra; Clark v. Chrysler Corp . , 310 F.3d 461, 477-78 (6th Cir.
2002) ; O'Bryan v . Volkswagen of America , 39 F.3d 1182 (6th Cir. 1994) (unpublished),
cert. denied , 514 U.S . 1032 (1994) . As such, while it was not required to do so, the trial
court did not err in instructing the jury that it must find proof of a feasible alternative
safer design .
Accordingly, we reverse the Court of Appeals and reinstate the judgment of the
Jefferson Circuit Court in favor of Toyota Motor Corporation . We decline to expressly
adopt the RESTATEMENT (THIRD) OF TORTS and leave that decision for another
day.
Cooper, Graves, Johnstone, and Wintersheimer, J.J ., concur.
Stumbo, J ., dissents in a separate opinion in which Lambert, C .J ., and Keller, J .,
join .
ATTORNEYS FOR APPELLANTS
William D . Grubbs
Woodward, Hobson & Fulton, LLP
2500 National City Tower
101 S. Fifth St.
Louisville, KY 40202
Alan Thomas
Woodward, Hobson & Fulton, LLP
2500 National City Tower
101 S . Fifth St.
Louisville, KY 40202
David T. Schaefer
Woodward, Hobson & Fulton, LLP
2500 National City Tower
101 S . Fifth St.
Louisville, KY 40202
Kristin M . Lomond
Woodward, Hobson & Fulton, LLP
2500 National City Tower
101 S. Fifth St.
Louisville, KY 40202
ATTORNEYS FOR APPELLEES
Tamara Todd Cotton
1102 Republic Building
429 West Muhammad Ali
Louisville, KY 40202
Susan P. Spickard
Spickard & Leibson
P .O. Box 5875
Louisville, KY 40255-0875
RENDERED : MAY 20, 2004
TO BE PUBLISHED
,Suyrrmr (~vurf of `rnfurhV
'Pt
2001-SC-0966-DG
TOYOTA MOTOR CORPORATION ;
TOYOTA MOTOR SALES, U .S.A., INC . ;
TOYOTA MANUFACTURING CANADA, INC . ;
AND OXMOOR AUTO INC ., D/B/A
OXMOOR TOYOTA
V.
APPELLANTS
ON REVIEW FROM COURT OF APPEALS
2000-CA-001042
JEFFERSON CIRCUIT COURT NO . 96-CI-003331
YU HSIA GREGORY AND
WILLIAM G. GREGORY
APPELLEES
DISSENTING OPINION BY JUSTICE STUMBO
Respectfully, I must disagree with the majority opinion's conclusion that although
the feasible, alternative safer design provision in the trial court's instruction "may have
been extraneous, it was certainly not erroneous or prejudicial ." I concur fully with the
Court of Appeals' decision on this issue. KRS 411 .310(2) establishes a rebuttable
presumption that a product is not defective if its design and manufacture conformed to
the state of the art at the time of design and manufacture . This creates a presumption,
which the plaintiff must overcome to get a case to the jury. Once with the jury, the sole
question is whether the product is defective . As the Court of Appeals neatly stated :
Rather than make that determination as the statute requires,
the trial court here included the presumption in the jury
instructions and effectively passed the determination of
whether or not the presumption was overcome, a question of
law, to the jury. Further, the instruction wrongly imposed a
greater than normal burden on the plaintiff by requiring her to
prove more than Kentucky law requires in similar cases.
Slip op . at 4-5 .
I would affirm the Court of Appeals in its remand for a new trial with a properly
instructed jury.
Lambert, C .J., and Keller, J ., join this dissent.
,Suprmt d1ourf of ~tnfurkg
2001-SC-0966-DG
TOYOTA MOTOR CORPORATION ;
TOYOTA MOTOR SALES, U .S.A., INC. ;
TOYOTA MANUFACTURING CANADA, INC . ;
AND OXMOOR AUTO INC ., D/B/A
OXMOOR TOYOTA
V.
APPELLANTS
ON REVIEW FROM COURT OF APPEALS
2000-CA-001042
JEFFERSON CIRCUIT COURT NO . 96-CI-003331
YU HSIA GREGORY AND
WILLIAM G . GREGORY
ORDER CORRECTING OPINION
APPELLEES
On the Court's own motion the opinion rendered May 20, 2004, in the
above styled case is hereby corrected with the substitution of pages 1, 2, and 5 attached
hereto .
The correction of these pages does not change the holding of this opinion .
ENTERED: June - !. ' y
, 2004 .
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