KIM v. TOYOTA MOTOR CORPORATION

Amicus Curiae Brief of The Product Liability Advisory Council, Inc.

Cal.October 18, 2016

p e P r e e Case No. 8232754 IN THE SUPREME COURT OF CALIFORNIA WILLIAM JAE KIM,etal., Plaintiffs and Appellants VS. TOYOTA MOTORCORP,et al., Defendants and Respondents. SUPREME COURT FILED Second District Court of Appeal No. B247672 OCT 18 2016 Los Angeles County Superior Court Jorge Navarrete Clerk The Honorable Raul A. Sahagun Civil Case No. VC059206 Deputy APPLICATION OF THE PRODUCTLIABILITY ADVISORY COUNCIL, INC., FOR PERMISSION TO FILE AMICUS CURIAE BRIEF AND AMICUS CURIAE BRIEF IN SUPPORT OF RESPONDENTS John M. Thomas (SBN 266842) Ashley R. Fickel (SBN 237111) jthomas@dykema.com atfickel@dykema.com DYREMA GOSSETT PLLC DYKEMAGOSSETT LLP 2723 South State Street, Suite 400 333 South Grand Avenue Ann Arbor, MI 48104 Suite 2100 Telephone: (734) 214-7613 Los Angeles, CA 90071 Facsimile: (734) 214-7696 Telephone: (213) 457-1800 Facsimile: (213) 457-1850 Counselfor Amicus Curiae The Product Liability Advisory Council, Tac. Case No. 8232754 IN THE SUPREME COURT OF CALIFORNIA WILLIAM JAE KIM,et al., Plaintiffs and Appellants VS. TOYOTA MOTORCORP,etal., Defendants and Respondents. Second District Court of Appeal No. B247672 Los Angeles County Superior Court The Honorable Raul A. Sahagun Civil Case No. VC059206 APPLICATION OF THE PRODUCTLIABILITY ADVISORY COUNCIL, INC., FOR PERMISSION TO FILE AMICUS CURIAE BRIEF AND AMICUS CURIAE BRIEF IN SUPPORT OF RESPONDENTS John M. Thomas (SBN 266842) Ashley R. Fickel (SBN 237111) jthomas@dykema.com afickel@dykema.com DYKEMA GOSSETT PLLC DYKEMA GOSSETT LLP 2723 South State Street, Suite 400 333 South Grand Avenue Ann Arbor, MI 48104 Suite 2100 Telephone: (734) 214-7613 Los Angeles, CA 90071 Facsimile: (734) 214-7696 Telephone: (213) 457-1800 Facsimile: (213) 457-1850 Counselfor Amicus Curiae The Product Liability Advisory Council, Inc. APPLICATION OF THE PRODUCTLIABILITY ADVISORY COUNCIL, INC., FOR PERMISSION TO FILE AMICUS CURIAE BRIEF IN SUPPORT OF RESPONDENTS To the Honorable Justices of the California Supreme Court: The ProductLiability Advisory Council, Inc., respectfully applies for permission to file the attached amicuscuriaebrief in support of the appellants. The ProductLiability Advisory Council, Inc. (“PLAC”)is a non-profit association with approximately 100 corporate members representing a broad cross-section of American andinternational product manufacturers. These companies seek to contribute to the improvement and reform oflaw in the United States, with emphasis on the law governing the liability of manufacturers ofproducts. PLAC’s perspective is derived from the experiences ofa corporate membership that spans a diverse group ofindustries in various facets of the manufacturing sector. Since 1983, PLAC hasfiled over 1075 briefs as amicus curiae in both state and federal courts presenting the broad perspective of product manufacturers seeking fairness and balance in the application and developmentofthe law asit affects product liability. A list ofPLAC’s corporate membersis attached as Appendix A. As part of the regular product-design process, PLAC’s members must routinely analyze and resolve questions about safety in product design. PLAC members who manufacture products with the potential to cause significant physical injury or death—including pharmaceuticals, medical devices, pesticides, foodstuffs, chemicals, appliances, power-tools, and automobiles—havea particular interest in the legal implications of product design decisions. It is important to PLAC membersthat juries evaluating their design decisions have all of the information necessary to reach an informed andreliable conclusion. This case is important to PLAC becauseit involves the admissibility of industry practice, which often reflects the consensus of an industry with respect to the appropriate balanceofsafety, functionality, aesthetics, and cost. “[An] important indicia of reliability is industry practice—whether other manufacturers and consumersin the industry utilize the allegedly defective design or the proposedalternative.” Milanowicz v. Raymond Corp., 148 F. Supp. 2d 525, 533 (D.N.J. 2001). Or, as the Nevada Supreme Court has recognized, “[t]he best way to determine if a defendant should have built a safer productis to let the jury hearall the evidencerelating to 2 the course of conduct of both the industry, and the particular manufacturer.” Robinson v. G.G.C., Inc., 107 Nev. 135, 142-43, 808 P.2d 522, 527 (1991). CONCLUSION The application for permissionto file the attached amicus curiae brief should be granted andthebrieffiled.' Respectfully submitted, Ashley R. Fickel (SBN 237111) afickel@dykema.com DYKEMA GOSSETT LLP 333 South Grand Avenue, Suite 2100 Los Angeles, CA 90071 Telephone: (213) 457-1800 Facsimile: (213) 457-1850 Counselfor Amicus Curiae The ProductLiability Advisory Council, Inc. ' This brief was not authored in whole or in part by any party or counsel to any party. No personor entity has made a monetary contribution to this brief other than PLAC and (through annual dues) PLAC members. 3 TABLE OF CONTENTS TABLE OF CONTENTSQu...eeeeeeesceecseceseesseeseesessseseesseseeeseeeeeseeees 1 TABLE OF AUTHORITIES 0.eeceecsesseneesccsseeseseseesesecetesecsnseessoneens il INTRODUCTION....... ccs ceesscecetcecesecseesssseesscessesessscecsesssesseeeeesessesase 1 STATEMENTOF FACTSou... eeccsccsescsteeeesstsseessssessesesessesasesseeenseees 3 ARGUMENT.1...cecesccsesssessessceerscesceesaseeseeeecneesesaesessasenecesesseessesseeseens 6 I. THE COURT OF APPEAL CORRECTLY HELD II. THAT EVIDENCE OF INDUSTRY CUSTOM AND PRACTICE MAY BE RELEVANTTO RISK- UTILITY BALANCING DEPENDING ON THE NATURE AND PURPOSE OF THE EVIDENCE......... 6 THE TRIAL COURT DID NOT ABUSE ITS DISCRETION IN DECIDING THAT UNDER THE SPECIFIC CIRCUMSTANCESOF THIS CASE THE PROFFERED EVIDENCE OF INDUSTRY CUSTOM WAS RELEVANT AND ADMISSIBLE ON ISSUES RELATING TO RISK-UTILITY BALANCING...ceceesessesesscsseeeeseseseeseteceeeesseeaseaeseasenses 12 CONCLUSION. 0. cececessesseeseesesecseeensscessseeecssessesseoessesssensstesssasessensens 23 TABLE OF AUTHORITIES CASES Back v. Wickes Corp., 375 Mass. 633, 642-43, 378 N.E.2d 964, 970 (1978)......cccccssessseeees 9 Barkerv. Lull Eng’g Co., 20 Cal. 3d 413, 431 (1978)oeeecsessscesesssssssescessessesssessssssseceessees 3 Bell v. Bayerische Motoren Werke Aktiengesellschaft, 181 Cal. App. 4" 1108 (2010) v.ccicsccscssssssccssessecssesssssessecsecsecssvesans 14 Boatland ofHouston, 609 S.W.2d at 748ooesccseccssceseeseesssesssscssssscscssccssersssesssssecses 17 Boatland ofHouston, Inc. v. Bailey, 609 S.W.2d 743 (1980)... escccssesscesseesseesssscsssssessneees 8, 13, 15, 16 Bourjaily v. United States, 483 U.S. 171, 179-80 (1987)... ccesesscessessessssessesssscessecssseessnsesses 20 Carter v. Massey-Ferguson,Inc., 716 F.2d 344, 348 (Sth Cir. 1983)es cesecsesssesssssesssssesscssssavecseenes 20 Coffey v. Shiomoto, 60 Cal. 4th 1198, 1213 (2015) wo.eeceeeeessseessesessersesseees 7, 20, 22 Jaurequi v. Carter Mfg. Co., 173 F.3d 1076, 1084 (8th Cir, 1999) oo.esccscssessscescescssssceseees 10 Kim v. Toyota Motor Corp., 243 Cal. App. 4 1366, 1370 (2016) ..c..eccesesccsecsescessesssseesesssessasees 6 McGee v. Evenflo Co., No. 5:02-CV-259-4 (CAR), 2003 U.S. Dist. LEXIS 25039,at *15 (M.D. Ga. Dec. 11, 2003)occcccscseesseesscerssssecssesssssscssssssssesasenses 11 Milanowicz v. Raymond Corp., 148 F. Supp. 2d 525, 533 (D.N.J. 2001)...ceeeeseeseeeeseee 2, 10, 18 O’Neil; v. Novartis Consumer Health, Inc., 147 Cal. App. 4™ 1388 (2007) .ccccsccssccsssscscssssccsescecssecsecsscsecssevessees 8 People v. Edwards, 54 Cal. 3d 787, 826 (1991) ..icccceessesscssscessssescssesssssscsessesssecearsacees 20 People v. Merriman, 60 Cal. 4th 1, 74 (2014); Coffey, 60 Cal. 4th at 1213.0... 12,22 People v. Ochoa, 26 Cal. 4th 398, 438 (2001); see also People v. Snow, 44 Cal. 3d 216, 228 (1987) 0... escesscsssssssstscsseseecsseeceseceessessusseesseseessossersuees 21, 22 il Rager y. GE, Civil Action No. 1:08-cv-1482, 2010 U.S. Dist. LEXIS 135402,at *AS (M.D.Pa. Dec. 22, 2010)... cececcscsscsscsscsscscssseeecrseeseeeceenees 10 Robinson v. G.G.C., Inc., 107 Nev. 135, 142-43, 808 P.2d 522, 527 (1991) vo...eee.2,11 Willis v. Besam Automated Entrance Sys., No. 04-CV-0913, 2005 U.S. Dist. LEXIS 26466, at *27 n.15 (E.D. Pa. NOV. 3, 2005) oo... eeccssccscssssesseseeessssesesesssessscesssssnseseaseneseees 11 STATUTES Evid. Code § 351... ceesssssssssssessccsssecsseessesscssscsssssccssscssecaseseesessesscees 6 Evid. Code § 352.0... ceeccssssssssessessssssccsssseessevscsscssevsvsesssseeeeaes 11, 18,19 Evid. Code. § 210.0... .cccssssssssessessessccsscssssssssssscssessccaeceseesessessrenceneueess 7 ili INTRODUCTION This Court granted review in this case to determine whether the trial court committed reversible error in admitting, as relevantto the risk-utility test for design defect, evidence of industry custom and practice related to the alleged defect. The specific evidenceat issue is evidence that no motor vehicle manufacturer provided a safety device known as “electronic stability control” or “ESC”on full-size pickup trucks. The test for relevance is not demanding; rather, evidence is relevantif it has any tendencyin reasonto prove or disprove any disputed fact of consequenceto the determination of the action. Analysis ofthe briefs filed by the parties reveals that there is no real dispute that the Court ofAppeal correctly held as a general matter that some evidence that can been characterized as “industry custom and practice” evidence mayberelevantto risk-utility analysis, depending on the nature of the specific evidence at issue and the purpose for which the proponentseeksto introduce the evidence. Plaintiffs themselves admit that evidence that has been characterized as “industry custom and practice” evidence can be relevant, including “technical standards,” “industry experience”—and even “industry 1 practice.” (Opening Brief at 21-28.) According to Plaintiffs, such evidence “may legitimately be cited as evidence of industry research or experience in balancing safety, feasibility, cost and functionality,” and can properly be admitted “to rebut a claim that a safety design wastechnologically possible and economically feasible.” (Opening Brief at 21-22, 27.) Plaintiffs’ position is thus consistent with the conclusion of the Court of Appeal, and the conclusions ofmost other courts, that industry custom mayreflect legitimate independent research and practical experience regarding the appropriate balance of product safety, cost, and functionality. Plaintiffs’ argument that the evidence at issue in this particular case wasnot relevant is very narrow and very case-specific. It is also very wrong, given their concession that the type of evidence at issue here can be relevant to rebut claims of both technological and economic feasibility. Plaintiffs’ case-specific argument is circular and amounts to this: the evidence at issue wasnot relevant to the cost- effectiveness or economic feasibility of ESC because,in Plaintiffs’ view, ESC wascost-effective and economically feasible. In other words,Plaintiffs simply assume awaythe very issuescentral to this case on whichthe evidence at issue was relevant. 2 Thetrial court’s discretionary decision admitting the evidence in this case can be reversed only on a showingthat the court acted in an arbitrary, capricious or patently absurd manner. Plaintiffs cannot—indeedhavenot even attempted to—make such a showing. STATEMENT OF FACTS The facts of this case are set forth in detail in Respondents’ AnswerBrief, but for purposes of the argument that follows PLAC wouldlike to highlight certain facts particularly relevant to risk-utility analysis, i.e., facts relating to “the gravity of the danger posed by the challenged design,the likelihood that such danger would occur, the mechanicalfeasibility of a safer alternative design, the financial cost of an improved design, and the adverse consequencesto the product and to the consumerthat would result from an alternative design.” Barkerv. Lull Eng’g Co., 20 Cal. 3d 413, 431 (1978). Plaintiffs in this case challenge the relevance of evidencethatat the time Plaintiffs purchased their 2005 Toyota Tundra no full-size pickup truck was equipped with Electronic Stability Control (“ESC”) as a standard feature. ESCis a feature that is designedto assist a driver in maintaining directional control under adverse circumstances. (See AnswerBrief at 5.) There is no debate that ESC was 3 “mechanically feasible” for use on full-size pickup trucks in 2005; in fact, ESC was standard on Toyota SUVs, and ESC wasavailable as an option on the 2005 Toyota Tundra. Thereis also no dispute that ESC would provide an incremental safety benefit to drivers of full-size pickup trucks. Andat least accordingto Plaintiffs, it would do so with no “adverse consequences”to the consumerother than cost. (Reply Briefat 9.) Butcost in this case, along with the gravity andlikelihood of harm, weresignificantrisk-utility considerations. Oneofthe principal questions that remained to be answered by the jury was whether in | 2005 the incremental reduction to the likelihood ofharm from loss of control in the Tundra outweighedthe financial cost of achieving that reduction. Toyota concluded that the answerto this question was “No,” and there was objective evidence other than “industry custom and practice” to support this conclusion. The 2005 Tundra received the highest safety rating from the Insurance Institute for Highway Safety for any full-size pickup, suggesting that the vehicle was already one ofthe safest pickups on the road, even without ESC. (RT 3379.) Toyota’s experts testified that the Tundra had other features that, like ESC, were designed to minimize the possibility of loss of 4 control, including antilock brakes and understeer, and that drivers “have to do unusual things” to lose control. (Answer Brief at 10-11.) Plaintiffs own expert, Gilbert, testified that he did not think that every vehicle without ESC was dangerous, he himself drove a Tundra without ESC, and herefusedto testify that the Tundra was defective without ESC. (AnswerBrief at 10.) Thus, the evidence supported a conclusion that the likelihood of injury from loss of control in the Tundra wasalready very low. Further, any incremental reduction in that risk with respect to a vehicle that was already equipped with numeroussafety features would comeat the cost of hundreds of dollars per vehicle to consumers whowere “really price sensitive.” (AnswerBrief at 11.) Independent surveys showed that most ofthese consumersdid not want ESC evenforfree. (AnswerBrief at 11.) Toyota offered ESC as an option on the Tundra, and its brochures described ESC as an “electronic system designedto help the driver maintain vehicle control under adverse conditions”—andyet less than 5% of Toyota customers chose this option. (AnswerBrief at 11; RT VUI 3315, 2255, 3359, 3370.) This evidence directly supported Toyota’s position that in 2005 ESC wasnot economically feasible or cost-effective for owners of full-size pickuptrucks,i.e., that in 2005 the incremental safety benefit provided by ESCto a vehicle that was already one of the safest on the road was outweighed by the financial cost to consumers concerned about cost. Evidence that no manufacturer equipped full-size pickup trucks with ESC as standard equipment wasoffered infurther support of this conclusion, because it had some tendencyin reason to show that Toyota’s balancing of the relevant risk-utility factors was correct. ARGUMENT I. THE COURT OF APPEAL CORRECTLY HELD THAT EVIDENCE OF INDUSTRY CUSTOM AND PRACTICE MAY BE RELEVANTTO RISK-UTILITY BALANCING DEPENDING ON THE NATURE AND PURPOSE OF THE EVIDENCE. The Court of Appealin this case expressly disapproved cases holding that evidence of “industry custom and practice” is never admissible in strict productliability cases. Kim v. Toyota Motor Corp., 243 Cal. App. 4" 1366, 1370 (2016). It also expressly disapproved cases holding that such evidence is always admissible in strict product liability cases. Jd. Instead, it held as follows: [W]e hold that evidence of industry custom and practice may be admissible in a strict products liability action, depending on the nature of the evidence and the purpose for which the proponent seeks to introduce the evidence. Id. There can benoserious question thatthis holding of the Court of Appeal was correct. No provision of the Evidence Codeestablishes a special rule for evidence of “industry custom and practice,” however that term might be defined. Rather, evidencerelating to industry custom andpractice is subjectto the generalrule that “all relevant evidence is admissible,” except “as otherwise required by statute.” Evid. Code § 351. This Court has recognizedthat “the test for admissibility of evidence [underthis rule] is not a strict one.” Coffey v. Shiomoto, 60 Cal. 4th 1198, 1213 (2015). Rather, “relevant evidence”is broadly defined to mean evidence “having any tendency in reason to prove or disprove any disputed fact that is of consequence to the determination of the action.” Evid. Code. § 210. Plaintiffs in this case quibble about the type of evidence that can properly be characterized as evidence of “industry custom andpractice,” but this semantic debate is immaterial. The question is not whether the evidenceat issue can be characterized as evidence of industry custom and practice, but whether the evidence, howevercharacterized, is relevant under § 210, i.e., whether it has any tendency in reason to prove or disprove a disputed fact. And Plaintiffs agree that evidence that is occasionally referred to as evidence of industry custom and practice can be relevant to the risk-utility balancing issue in strict productliability cases, and therefore admissible, depending on the nature of the evidence and the circumstancesofthe particular case. For example, Plaintiffs concede that technical standards promulgated by government agencies can be “uniquely valuable as design criteria.” (Opening Brief at 24, citing O’Neil; v. Novartis Consumer Health, Inc., 147 Cal. App. 4™ 1388 (2007).) Plaintiffs concede that “technical standards” established by industry associations “maylegitimately be cited as evidence of industry research or experience in balancing safety, feasibility, cost and functionality.” (Opening Brief at 21-22, , citing Howard v Omni Hotels Mgmt. Corp., 203 Cal. App. 4" 403 (2012).) Plaintiffs also agree that evidence of “industry experience” and “industry practice” can berelevant “to rebut the claim that a safer design was technologically possible and economically feasible.” (Opening Brief 8 at 25, 28, emphasis added.) Forthis proposition, they cite Boatland of Houston, Inc. v. Bailey, 609 S.W.2d 743 (1980), which held that evidencethat a safety device was not being used in an industry wasin fact relevant to risk-utility analysis. (Opening Brief at 28.) In other words, Plaintiffs have conceded that the Court of Appeal wascorrect whenit held that “[iJndustry custom may [in some cases] reflect legitimate independent research and practical experience regarding the appropriate balance of product safety, cost, and functionality.” Kim, 243 Cal. App. 4" at 1379. The holding ofthe Court ofAppeal in this case echoes anotherdecision that Plaintiffs cite with apparent approval: In balancing all the pertinent factors, the jury made a judgment as to the social acceptability of the design, and this is the same judgment originally made by the designer of the product. Evidence that all product designers in the industry balance the competing factors in a particular way clearly is relevant to the issue before the jury. Back v. Wickes Corp., 375 Mass. 633, 642-43, 378 N.E.2d 964, 970 (1978) (cited by Plaintiffs at Opening Brief at 17). As Respondents point out (AnswerBriefat 35-37), this holding is consistent with most other decisions from most otherjurisdictions.” These holdings, and Plaintiffs’ concession, reflect simple commonsense. In the real world outside of the courtroom, anyone interested in designing a product would almostcertainly begin by evaluating the existing designs of comparable products. If everyone in an industry has made the samedecision with respect to any particular design feature,it is likely that there were good reasons for that decision. In the courtroom, therefore, “[an] importantindicia of reliability [of expert testimony] is industry practice—whether other * In addition to the decisionscited bY, Respondent, see, e.g., Miller v. Yazoo Mfg. Co., 26 F.3d 81, 83-84 (8th Cir. 1994) (“Yazoo’s evidence—testimony and documentsasserting that a seven-second stopping period ‘reflects the national consensus’ andis the ‘general agreement among maker,seller and user groups,’—helpedthe jury understand the condition of the Red Rider lawnmowerandthus helped the jury determine whether the lawnmower was unreasonabl dangerous.); Reedv. Tiffin Motor Homes, Inc., 697 F.2d 1192, 1197 (4th Cir. 1982) (evidence of industry standards and customs was | relevant where “it is clear that South Carolina does balancetheutility of the risk inherent in the design of the product with the magnitude of the risk”); Jones v. Nat’l Cart Co., No. 12-1186, 2015 U.S.Dist. LEXIS 158367, at *3-4 (C.D.Ill. Nov. 24, 2015) (“industry custom and practice is one ofthe risk-utility factors approved by the Illinois Supreme Court”); Miles v, DESA Heating LLC, Civil Action No. 4:10- 00521-JMC, 2012 U.S. Dist. LEXIS 45433, at *15 (D.S.C. Mar. 27, 2012) (“With the risk-utility test, the state of the art and industry _ standards are relevant to show both the reasonablenessofthe design and that the product is dangerous beyond the expectations of the ordinary consumer”); Thibault v. Sears, Roebuck& Co., 118 N.H. 802, 814, 395 A.2d 843, 850 (1978) (in strict liability case requirin risk-utility balancing, evidence of “custom and usage standards ofthe lawn mowerindustry” was“relevant and correctly admitted”) 10 manufacturers and consumersin the industry utilize the allegedly defective design or the proposedalternative.” Milanowiczv. RaymondCorp., 148 F. Supp. 2d 525, 533 (D.N.J. 2001); see also, é.g., Jaurequi v. Carter Mfg. Co., 173 F.3d 1076, 1084 (8th Cir. 1999) (reliability of expert’s opinion was underminedbyhisfailure to identify any manufacturer that incorporated his proposed safety feature into similar machinery); Rager v. GE, Civil Action No. 1:08- cv-1482, 2010 U.S. Dist. LEXIS 135402, at *45 (M.D.Pa. Dec. 22, 2010) (“Evidence ofindustry practice has been identified as helpful indicia of reliability [of expert testimony] in products liability cases.”); Willis v. Besam Automated Entrance Sys., No. 04-CV-0913, 2005 U.S. Dist. LEXTS 26466, at *27 n.15 (E.D. Pa. Nov.3, 2005) (“Industry practice is an importantindiciaofreliability.”); McGee vy. Evenflo Co., No. 5:02-CV-259-4 (CAR), 2003 U.S. Dist. LEXIS 25039, at *15 (M.D. Ga. Dec. 11, 2003) (“when an engineeroffers an opinion with respect to a product defect or the existence of an alternative design,it is relevant to weigh ... whether the expert relied on applicable standards, industry practice, or professional publications.”). Or, as the Nevada Supreme Court has recognized, “[t]he best way to determine if a defendant should have built a safer 11 productis to let the jury hearall the evidence relating to the course of conduct of both the industry, and the particular manufacturer.” Robinson v. G.G.C., Inc., 107 Nev. 135, 142-43, 808 P.2d 522, 527 (1991). Ii, THE TRIAL COURT DID NOT ABUSEITS DISCRETION IN DECIDING THAT UNDER THE SPECIFIC CIRCUMSTANCESOF THIS CASE THE PROFFERED EVIDENCE OF INDUSTRY CUSTOM WAS RELEVANT AND ADMISSIBLE ON ISSUES RELATING TO RISK-UTILITY BALANCING. Asin any case, the relevance ofproffered evidence must be evaluated underthe circumstances of each case, includingthe specific evidence proffered and the specific facts in dispute. In addition, even relevant evidence can be excludedin the discretion ofthetrial court if its probative value is outweighed by the potential for undue prejudice, confusing the issues, and misleading the jury. Evid. Code § 352. Both the initial determination of relevance and the decision to admit or exclude relevant evidence under § 352 are matters that rest in the discretion ofthe trial court, and such decisions will be reversed only wherethetrial court acted in an arbitrary, capricious or patently absurd manner. People v. Merriman,60 Cal. 4th 1, 74 (2014); Coffey, 12 60 Cal. 4th at 1213. No such abuse ofdiscretion can be shown in this case. Plaintiffs’ argument on relevanceis in fact quite narrow and case-specific. The specific evidenceat issue is evidencethat no manufacturer offered a safety device, ESC, as standard equipment on full-size pickup trucks. As noted above,Plaintiffs, citing Boatland of Houston, Inc. v. Bailey, 609 S.W.2d 743 (1980), concededthat such evidence can berelevant to the risk-utility analysis becauseit can serve to rebut a claim a safer design was “feasible.” (Opening Briefat 27.) This case is different, they claim, because the safety device at issue, ESC, wasindisputably feasible; it was actually in use on other vehicles and wasactually being offered by Toyota as an option on the Tundra. (See, e.g., Opening Brief at 28; Reply Brief at 9.) Further, Plaintiffs point out, there is no dispute that ESC provides an added safety benefit with no “adverse effect” on consumersotherthan cost. (Reply Brief at 9.) “In a case with abundant direct and uncontradicted technical evidenceofthe feasibility and effectiveness ofESC on the Tundra, the inference that the failure of other makers to putit in their trucks by 2005 underminedthat evidenceis a tacit admission of 13 defendant’s inability to produce real evidence on risk-benefit ....” (Reply Brief at 9, emphasis added.) Plaintiffs thus concede, implicitly if not explicitly, that the absence ofESC on anyotherfull-size pickup truck would be relevant to the following risk-utility factors, if they were disputed: e Whether ESC wastechnologically feasible for use on full- size pickup trucks. e Whether ESC would provide added safety benefits to drivers of full-size pickup trucks. e Whether ESC, if installed on full-size pickup trucks, would have adverse technologicaleffects that outweighed any safety benefit. Plaintiffs even concede, implicitly if not explicitly, that the absence of ESConfull-size pickup trucks would be relevant on the issue of whether the advantages ofESC were outweighed by “aesthetic considerations,” if that were disputed. (See Reply Briefat 5, distinguishing Bell v. Bayerische Motoren Werke Aktiengesellschaft, 181 Cal. App. 4" 1108 (2010) from this case becausethe design choice at issue had an impact on “aesthetic considerations.”). 14 In other words,Plaintiffs have conceded that the judgmentof an entire industry, as reflected in its uniform practice, has some tendency in reason to establish that the benefits of an alternative design do not outweigh the disadvantages, becausethe safer design is not technologically feasible, because the alternative design creates adverse technologicaleffects, or because the alternative design detracts from the aesthetics of the product. Further, Plaintiffs repeatedly admit that cost, cost-effectiveness, and economic feasibility are also important factors in risk-utility analysis. (Opening Briefat 19, 21, 25, 27, 31, 35, 37; Reply Brief at 2.) And yet, they arguethat the judgmentofthe industry is not admissiblein this case because the disputed issues relate to cost and economicissues rather than technological and aesthetic issues. Plaintiffs make this argument while simultaneously (and correctly) citing Boatland ofHouston as an example of a case where evidence of an industry’s failure to use a safety device was properly admitted to rebut a claim that“a safer design was technologically possible and economicallyfeasible.” (Opening Brief at 27, emphasis added.) In that case, as here, the evidence established that a safety device (in that case a “kill switch” designed to cut off a boat motorif 15 the driver is ejected) had been used for years in some vehicle types (racing boats.) 609 S.W.2d at 748. As here, the plaintiff alleged that the same device should have been usedin his vehicle type (a recreational boat). The Texas Supreme Court recognized that “the defendant’s ability to rebut the plaintiff's evidence [offeasibility] is notlimited to showingthat a particular alternative was impossible.” Id.Error! Bookmark not defined. Rather, “it is entitled to rebut the plaintiff's evidenceoffeasibility with evidence oflimitations on feasibility.” Jd. In particular, “a suggested alternative may be available, but impractical for reasons such as greatly increased cost or impairment of the product’s usefulness.” Jd. at 749. Therefore, “[w]hen the plaintiff has introduced evidencethat a safer alternative wasfeasible because it was used, the defendant may then introduce contradictory evidence that it was not used.” Jd. Here, Plaintiffs assert that “the only ‘adverse effect’ on consumers identified by Toyota is a cost of a few hundreddollars.” (Reply Brief at 9.) They also admit that this cost must be “balanced against the improvements to safety.” Jd. But they simply assumethat it has already been established that the “improvementsto safety” necessarily outweigh the “few hundred dollars” in cost, and that 16 economicfeasibility and cost-effectiveness—like technological feasibility and aesthetic considerations—are not disputed. For example, Plaintiffs assert that “[n]o industry ‘experience’ with vehicles lacking ESC could overcomethefact that industry research had provenits value andfeasibility at such modest cost that it was scheduled to be made standard equipment.” (Opening Briefat 32, emphasis added.) They argue that “there was no industry consensus that ESC was impractical or cost-prohibitive.” (Reply Briefat 1, emphasis added.) Theyassert thatin this case “there is nofinancialor technicaljustification for failure to incorporate state-of-the-art safety technology”andthat there is a “total absence oftechnical or cost justification.” (Opening Brief at 33, emphasis added.) In this fashion, Plaintiffs simply assume awaythevery issue central to this case on which the evidence at issue was relevant; accordingto Plaintiffs, the evidence wasnotrelevantto issues of economicfeasibility or cost effectiveness because (they say) ESC was economically feasible and cost-effective. Plaintiffs assert that “[i]n not one instance does Toyota demonstrate that the inference ofindustry ‘balancing’ whichisits justification for custom evidence cannotbe far better served by 17 showing exactly how the ‘balance’is the result if real risks and benefits rather than irrelevant competitive factors or mere lethargy.” (Reply Brief at 2.) This argument is misguided in two respects. First, the fact that there may be “better” evidence relating to the cost- effectiveness ofESC does not make otherwise relevant evidence irrelevant. In fact, it is the cumulative effect of al/ of the relevant evidence, from the weakestto the strongest, that can make the most impact. For example, direct testimony from litigation expert that a _ safety device was not technologically feasible would become even stronger and more persuasive when combined with evidence that no oneelse in an industry used that safety device. See, e.g, Boatland of Houston, 609 S.W. 2d at 748; Milanowicz v. Raymond Corp., 148 F. Supp. 2d 525, 533 (D.N.J. 2001) (“[An] importantindicia of reliability [of expert testimony] is industry practice—whether other manufacturers and consumersin the industry utilize the allegedly defective design or the proposed alternative.”). The sameis true with respect to economic feasibility or cost-effectiveness; direct evidence that a safety device is not cost-effective or economically feasible becomes stronger when combinedwith evidence that no other 18 company in a competitive industry makes that device available. See id. Second, contrary to Plaintiffs’ assertion, Toyota in this case did present the type of “better” cost-effectiveness evidence Plaintiffs would prefer. The 2005 Tundra was already one ofthe safest pickups on the road, even without ESC, as evidenced bythe factthatit received the highest safety rating from the InsuranceInstitute for Highway Safety. (RT 3379.) Toyota’s expertstestified that the Tundra had other features that, like ESC, were designed to minimize the possibility of loss of control, and that as a result drivers “have to do unusualthings” to lose control. (Answer Brief at 10-11.) Plaintiffs own expert, Gilbert, testified that he did not think that every vehicle without ESC was dangerous,that he himself drove a Tundra without ESC,andherefusedto testify that the Tundra was defective without ESC. (AnswerBrief at 10-11.) Any incremental increase in safety to a vehicle that was already equipped with numeroussafety features would comeat the cost of hundreds of dollars per vehicle to consumers who were “really price sensitive,” who would be uninterested in ESC even if it were offered for free, and who almost 19 uniformly elected not to purchase ESC whenit wasoffered as an option. (AnswerBrief at 11; RT 3315, 2255, 3359, 3370.) According to Plaintiffs, the goal ofproductliability law should be to “hold manufacturersto the level of safety that consumers would demandthrough market choicesifthey were adequately informed about productrisk characteristics.” (Reply Brief at 4.) Toyota presented direct evidence, the admissibility ofwhich is not challenged on appeal, to support the conclusion that consumers would not and did not demand ESC,andthat consumers did not believe that the incremental benefits ofESC justified the hundredsofdollars of additional cost. Motor vehicle manufacturers all have a strong economic interest in providing consumers with features that consumers want and are willing to pay for; the fact that none of these * Plaintiffs on appeal do not challenge the admissibility of this direct evidence of the lack of consumer demand, but they arguethatit is unreliable because consumers were notfully aware of the benefits of ESC. Thesignificance ofthis to the issue on appeal(the admissibility of other evidence) is unclear. In any event, consumers can never be fully informed aboutall ofthe risk-utility factors relevantto the design of a vehicle, including the gravity ofthe danger posed by the challenged design,the likelihood that such danger would occur, the mechanical feasibility of a safer alternative design, the financial cost of an improved design, and the adverse consequencesto the product and to the consumer that would result from an alternative design. In this respect, economicfeasibility and cost-effectiveness are no different from theother technical and aesthetic factors relevantto the riskutility analysis. In each case, manufacturers attempt to strike the balancethat a fully-informed consumer would strike, and the judgmentof an entire industry on this issue is worthyof at least some consideration, along with other “better” evidence onthe issues. 20 manufacturers provide ESC as standard equipmentin full-size pickup trucks hasat least some tendency in reason to support the direct evidence that consumers were in fact not willing to pay hundreds of dollars more for a feature that increased safety only incrementally and only in extreme and unusual circumstances. The issue presented here is not whether evidence that no full- size trucks had ESC was,byitself, sufficient to satisfy Toyota’s burdenofproofon the risk-utility issue (assuming that the burden on this issue had shifted to Toyota). “Evidence neednotbe dispositive of an issue to be relevant.” Carter v. Massey-Ferguson, Inc., 716 F.2d 344, 348 (Sth Cir. 1983); accord, e.g., Bourjaily v. United States, 483 U.S. 171, 179-80 (1987) (“[I]ndividual pieces of evidence, insufficient in themselves to prove a point, may in cumulation prove it. The sum of an evidentiary presentation may well be greater than its constituent parts.”); Coffey v. Shiomoto, 60 Cal. 4th 1198, 1215 (2015) (“circumstantial evidence of intoxication, while not dispositive, may be relevant and thus admissible”); People v. Edwards, 54 Cal. 3d 787, 826 (1991) (“This evidence, although alone far from dispositive, was relevant ....”). Plaintiffs arguethat the uniform practice of the industry should automatically be excluded 21 because the reasonsfor the practice may be ambiguousandthat the practice of the entire industry could (for example) be dueto “mere lethargy.” (Reply Brief at 2.) But unless the trial court concludes that the probative valueis sufficiently undermined that exclusion under § 352 is warranted, “[s]uch argument concerns only the weightofthis evidence, not its admissibility, which does not require complete unambiguity.” People v. Ochoa, 26 Cal. 4th 398, 438 (2001); see also People v. Snow, 44 Cal. 3d 216, 228 (1987) (“Any objection based on the ambiguousnature of defendant’s response would be addressed to the weight of the evidence, and notits admissibility.) In fact, Plaintiffs concede that technical standards promulgated by government agencies can be “uniquely valuableas design criteria,” even though they maybe “tainted” by political influence, by bureaucratic inertia, or by false information supplied to the agency. (Opening Brief at 24.) They also concedethat “technical standards” established by industry associations can be relevant even though industry associations may “collude to restrain the introduction of technical or safety improvements “ and may adopt “standards which aim at not rocking the boat.” (Id. at 22-23.) As Plaintiffs appear to recognize, concerns such as these do notaffect relevance under § 210, 22 and to the extent they affect the probative value of evidence they can be arguedto the jury (as they werehere) or to the court in connection with an objection based on § 352. Plaintiffs advance nojustification for treating the evidenceat issue here any differently. The question here is simply whether under the circumstances of this case the trial court acted in an arbitrary, capricious or patently absurd mannerin determining that the evidence at issue was relevant under § 210 and not subject to exclusion under § 352 (assuming that § 352 wasproperly raised as an objection below). People v. Merriman, 60 Cal. 4th 1, 74 (2014); Coffey, 60 Cal. 4th at 1213. Plaintiffs do not even argue that they have metthis standard. CONCLUSION The judgmentofthe Court ofAppeal should be affirmed. 23 Respectfully submitted, Atel John M. Thomas (SBN 66842) jthomas@dykema.com DYKEMA GOSSETT PLLC 2723 South State Street, Suite 400 Ann Arbor, MI 48104 Telephone: 734) 214-7613 Facsimile: 734) 214-7696 Ashley R. Fickel (SBN 237111) afickel@dykema.com DYKEMA GOSSETT LLP 333 S. Grand Avenue, Suite 2100 Los Angeles, CA 90071 Telephone: (213) 457-1800 Facsimile: (213) 457-1850 24 CERTIFICATE OF COMPLIANCE Pursuant to Rule 8.204(c) of the California Rules of Court, I hereby certify that this brief contains 4,787 words, including footnotes. In making this certification, I have relied on the word count of the computer program usedto prepare thebrief. Respectfully submitted, KA Ashley R. Fickel (SBN 237111) afickel@dykema.com DYKEMA GOSSETT LLP 333 South Grand Avenue Suite 2100 Los Angeles, CA 90071 Telephone: (213) 457-1800 Facsimile: (213) 457-1850 25 APPENDIX A Corporate Membersof the Product Liability Advisory Council as of 9/30/2016 Total: 94 3M Altec, Inc. Altria Client Services LLC Astec Industries Bayer Corporation BIC Corporation Biro Manufacturing Company, Inc. BMWofNorth America, LLC The Boeing Company Bombardier Recreational Products, Inc. Boston Scientific Corporation Bridgestone Americas, Inc. Bristol-Myers Squibb Company C. R. Bard, Inc. Caterpillar Inc. CC Industries, Inc. Celgene Corporation Chevron Corporation Cirrus Design Corporation Continental Tire the Americas LLC Cooper Tire & Rubber Company Crane Co. Crown Equipment Corporation Daimler Trucks North America LLC Deere & Company Delphi Automotive Systems The Dow Chemical Company E.I. duPont de Nemours and Company Emerson Electric Co. Exxon Mobil Corporation FCA US LLC Ford Motor Company Fresenius Kabi USA, LLC General Motors LLC Georgia-Pacific LLC GlaxoSmithKline The Goodyear Tire & Rubber Company Great Dane Limited Partnership HankookTire America Corp. Harley-Davidson Motor Company The HomeDepot Honda North America,Inc. Hyundai Motor America Illinois Tool Works Inc. Intuitive Surgical, Inc. Isuzu North America Corporation Jaguar Land Rover North America, LLC Jarden Corporation Johnson & Johnson Kawasaki Motors Corp., U.S.A. KBR,Inc. Kia Motors America, Inc. Kolcraft Enterprises, Inc. Lincoln Electric Company MagnaInternationalInc. Mazak Corporation Mazda Motor ofAmerica, Inc. Medtronic,Inc. Merck & Co., Inc. Meritor WABCO Michelin North America, Inc. Microsoft Corporation Mitsubishi Motors North America,Inc. Mueller Water Products Novartis Pharmaceuticals Corporation Novo Nordisk,Inc. Pella Corporation Pfizer Inc. Corporate Membersofthe Product Liability Advisory Council as of 9/30/2016 Pirelli Tire, LLC Polaris Industries,Inc. Porsche Cars North America,Inc. RJ Reynolds Tobacco Company Robert Bosch LLC SABMiller Plc The Sherwin-Williams Company St. Jude Medical, Inc. Stryker Corporation Subaru ofAmerica, Inc. Takeda Pharmaceuticals U.S.A., Inc. TAMKOBuilding Products, Inc. Teleflex Incorporated Toyota Motor Sales, USA,Inc. Trinity Industries, Inc. U-HaulInternational The Viking Corporation Volkswagen Group ofAmerica, Inc. Volvo Cars of North America, Inc. Wal-Mart Stores,Inc. Western Digital Corporation Whirlpool Corporation Yamaha Motor Corporation, U.S.A. YokohamaTire Corporation ZF TRW Zimmer Biomet PROOF OF SERVICE Atthe time of service, I was over 18 years of age and nota party to this action. I am employed in the County of Los Angeles, State of California. My business address is 333 South Grand Avenue, Suite 2100, Los Angeles, California 90071. On October 6, 2016, I served true copies of the following document(s) described as APPLICATION OF THE PRODUCTLIABILITY ADVISORY COUNCIL, INC., FOR PERMISSION TO FILE AMICUS CURIAE BRIEF AND AMICUS CURIAE BRIEF IN SUPPORT OF RESPONDENTSonthe interested parties in this action as follows: SEE ATTACHED LIST BY MAIL: I enclosed the document(s) in a sealed envelope or package addressedto the personsat the addresseslisted in the Service List and placed the envelope for collection and mailing, following our ordinary business practices. I am readily familiar with Dykema Gossett LLP’s practice for collecting and processing correspondence for mailing. On the same day that the correspondenceis placed for collection and mailing,it is deposited in the ordinary course of business with the United States Postal Service, in a sealed envelope with postage fully prepaid. I declare under penalty of perjury underthe laws of the State of California that the foregoingis true andcorrect. Executed on October 6, 2016, at Los Angeles, California. Ktprrersdysenee LYNNSPENCER 7” SERVICE LIST Jan Herzog, Esq. Evan D. Marshall, Esq. ThomasF. Yuhas, Esq. LAW OFFICES OF IAN HERZOG APC 11400 West Olympic Boulevard Suite 1150 Los Angeles, CA 90064 Ian Herzog, Esq. Evan D. Marshall, Esq. Thomas F. Yuhas, Esq. LAW OFFICES OF IAN HERZOG APC 233 Wilshire Boulevard, Suite 550 Santa Monica, CA 90401 Plaintiffs andAppellants William Jae Kim Hee Joon Kim Patrick Goode Rogan,Esq. PATRICK G. ROGAN PC 20406 Seaboard Road Malibu, CA 90265 Robert A. Brundage, Esq. Nicolette Leilani Young, Esq. MORGANLEWISand BOCKIUS LLP One Market, Spear Street Tower San Francisco, CA 94105 David P. Stone, Esq. BOWMANand BROOKE LLP 2501 North Harwood, Suite 1700 Dallas, TX 75201 Defendants and Respondents Toyota Motor Corporation Toyota Motor Sales USA Inc. Toyota Motor Engineering & Manufacturing North America,Inc. Power Toyota Cerritos Inc. Toyota Motor North AmericaInc. Brian D. Chase, Esq.BISNAR & CHASE LLP1301 DoveStreet, Suite 120Newport Beach, CA 92660 Consumer Attorneys of California:Pub/Depublication Requestor 4816-6799-9546.1 019956\000999