SCHLEININGER v. QUESTOR CORPORATION

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Court of Appeal, Fifth District, California.

Cynthia Dawn SCHLEININGER, a Minor, etc., Plaintiff and Appellant, v. QUESTOR CORPORATION, Defendant and Respondent.

Civ. 6731/277.

Decided: March 27, 1984

David Stiles, Milton M. Younger, Chain, Younger, Jameson, Lemucchi & Noriega, Bakersfield, for plaintiff and appellant. William J. Dawson, Jeffrey H. Smith, William S. Dawson, Dawson & Ninnis, Fresno, for defendant and respondent.

We reverse the judgment for the defendant in this product liability case.   An eight-week jury trial took place ten years after the plaintiff was seriously injured in an automobile accident while secured in an “Infantseat” manufactured by the defendant.   Although acutely aware of the great expenditure of time and effort by the court and all parties, we find the plaintiff entitled to a new trial.   On retrial, counsel and the court must properly use the term “state of the art” or avoid its use altogether.

On June 6, 1977, plaintiff, Cynthia Schleininger, through her guardian ad litem, Charles Schleininger, filed a personal injury complaint against Questor Corporation.   Plaintiff alleged that she sustained injury in an automobile accident because of the use of “Infantseat,” a baby carrier product manufactured by defendant Questor.   Defendant cross-complained against Joyce Schleininger, plaintiff's mother, and Donald Prys, drivers of the vehicles involved in the accident.   Prior to trial, the court approved plaintiff's settlements with both of the cross-defendants.

The case was tried before a jury on strict product liability and breach of warranty theories, plaintiff asking for both compensatory and punitive damages.   On July 29, 1982, the jury returned a verdict for defendant, the special verdict showing a finding of no defect in the design of the product.

THE ACCIDENT.

On July 12, 1971, Mrs. Schleininger strapped plaintiff, then three months old, into an Infantseat and placed her in the family automobile.   Mrs. Schleininger testified that she secured the Infantseat with the lap-style seat belt in her car.   While Mrs. Schleininger was driving at highway speed, Prys drove his vehicle into the intersection she was approaching.   Mrs. Schleininger applied her brakes, swerved to avoid a collision, and struck a concrete abutment.   Plaintiff was thrown against the dashboard while still strapped into the Infantseat.   She sustained head injuries which resulted in severe retardation:  she cannot sit, stand, walk or crawl;  is virtually blind, and is probably deaf.   Plaintiff's mother and two sisters who were riding in the car wearing seat belts sustained only minor injuries.

THE TRIAL

At trial plaintiff sought to show strict product liability through design defect and failure to warn.   Plaintiff's expert, Derwyn Severy, testified to the speeds and forces involved in the accident.   He conducted crash tests, evaluating the performance of the Infantseat.   He also referred to the state of the art in the design of automobile restraint devices for infants.   It was his expert opinion that not only did the state of the art permit the design and manufacture of a crashworthy seat, but that several products then on the market would have protected the plaintiff.

Plaintiff's next witness, James McElhaney, was also a crash-testing expert.   He had been a consultant for a subsidiary of Questor at one time.   It was his opinion that the Infantseat actually enhances injuries sustained in similar accidents.   He testified that in 1971 tests were available for a manufacturer to evaluate the crashworthiness of its product.

Plaintiff also called a marketing expert.   Questor had advertised various models of the Infantseat for use in automobiles, including pictures of it being used in automobiles, for almost 20 years;  however, approximately two years prior to the accident, Questor ceased advertising the Infantseat for such use.   The marketing expert testified to the cumulative effect of advertising.   Even though an advertisment is stopped, promotional value carries over.   Only positive warnings of danger would eliminate the promotional effect of Questor's long advertising campaign for the use of Infantseat in automobiles.   Nine months after the accident defendant attached warning labels to the Infantseat, cautioning against use in automobiles.

Plaintiff also read from the deposition of Lou Throssel, president of the Infantseat Division of Questor.   He admitted that the cessation of promotion of the Infantseat in automobiles and the eventual warning in 1972 not to use Infantseats in automobiles were primarily to avoid regulation by the Department of Transportation.

Defendant sought to show that the particular model of Infantseat used by plaintiff was never advertised for use in automobiles.   It noted that, unlike earlier Infantseat models, plaintiff's model lacked either bail hooks, which hook over the front seat to secure the carrier in place, or tether cords, which immobilize the carrier in the car.   However, on cross-examination Throssel recalled a “piece of literature that was printed in September of 1969 that illustrated ․ this particular baby carrier in a car with a seatbelt․”   He could not remember whether the literature was used, because at about that time defendant decided to remove the Infantseat from the car seat line of products which were coming under federal regulation.

BURDEN OF PROOF

 Before discussing the misuse of the term state of the art we note the trial may have been clouded by a misapprehension of plaintiff's counsel and the court that plaintiff had the burden of proof on the question of design defect.   Plaintiff produced witness Severy to establish not only proximate cause but also that the design was defective.   The court instructed the jury that plaintiff had to prove the Infantseat was defective.   Even though the use note to BAJI instruction 9.00.5 seems to support this point of view, we believe the Supreme Court has ruled to the contrary.

In Barker v. Lull Engineering Co. (1978) 20 Cal.3d 413, 431, 143 Cal.Rptr. 225, 573 P.2d 443 the court observed the authorities had not paid much attention to the appropriate allocation of the burden of proof.   Because design information is “peculiarly within the knowledge of the manufacturer” the burden of proof assignment is as follows:  “[O]nce the plaintiff makes a prima facie showing that the injury was proximately caused by the product's design, the burden should appropriately shift to the defendant to prove, in light of the relevant factors, that the product is not defective.”  (Ibid.)  This is not a rule merely shifting the burden of producing evidence.  (Id., at p. 432, 143 Cal.Rptr. 225, 573 P.2d 443.)   Thus, although the plaintiff has the affirmative in attributing the injury to the design, the design becomes “defective” only when the defendant fails to prove that the benefit of the design outweighs the risk of danger inherent in the design.

We anticipate that in the retrial of this case plaintiff's expert may be produced at first only to carry the prima facie burden of connecting the injury to the design of the Infantseat, then withdrawn to await defendant's proof tending to show the product was not defective on a risk-benefit analysis.   Only then would plaintiff's expert testimony on defect become important.

Even though plaintiff did assume an unnecessary burden by offering affirmative evidence of defect, she did not invite the erroneous admission of evidence of industry custom by her expert's testimony on state of the art.   Plaintiff's counsel consistently objected to all custom evidence;  defense counsel missed no opportunity to bring industry practices before the jury.   As we shall see, if the term state of the art has a proper place in product liability law when negligence is not asserted, its use must be limited to industry capability.

STATE OF THE ART

 In this case the term was taken out of the context used by plaintiff's expert and converted by the defendant into a device to gain the admission of improper evidence.   Over objection, the jurors were permitted to hear that other manufacturers were producing noncrashworthy baby carriers and selling them without warnings against use in automobiles.   The jury also learned that the federal government had not recalled defendant's product.   Finally, defendant's closing argument highlighted the evidence of what the typical manufacturer was doing.

The court compounded the error by instructing the jury to reach a defense verdict if the Infantseat was made and marketed “in accordance with the state of the art.”   Because the jury instruction failed to define state of the art, we must assume the jurors took their cue from the exchanges between counsel and the court as evidence was being offered.   These exchanges, based upon an inappropriate application of the term, resulted in admission of improper trade custom evidence.   The errors could not be “unrung” by a separate instruction that the custom and practice of other manufacturers is not a defense to strict product liability.

 “In a strict products liability case, industry custom or usage is irrelevant to the issue of defect.”  (Grimshaw v. Ford Motor Co. (1981) 119 Cal.App.3d 757, 803, 174 Cal.Rptr. 348;  see also Titus v. Bethlehem Steel Corp. (1979) 91 Cal.App.3d 372, 378, 154 Cal.Rptr. 122.)   The issue is whether the product was defective for its reasonably foreseeable use, not whether the manufacturer acted unreasonably or negligently.  (Barker v. Lull Engineering Co., supra, 20 Cal.3d 413, 418, 143 Cal.Rptr. 225, 573 P.2d 443.)

Initially, the trial court granted a motion in limine excluding all evidence of custom and practice.   However, during the cross-examination of plaintiff's expert witness the court made the first in a series of observations and rulings which erroneously admitted evidence of custom and practice.   Defendant argues the trial court's rulings are supportable on several bases.   We examine each of defendant's claimed grounds.

Defendant contends that plaintiff is estopped to object to admission of evidence of custom and practice.   Defendant points to the fact that plaintiff introduced evidence of several contemporaneous crashworthy products and that plaintiff's expert, on cross-examination, acceded to a definition of state of the art which included “hardware marketed.” 1  This is the exchange which impressed the court that the door was opened to evidence of custom and practice:

“Q Now, on page 3, Mr. Severy, at the top is the following:  ‘A review of the state of the art of child seating and restraint systems can include several areas such as the hardware marketed, user tolerance to impact loadings, the anthropometry of infants and children, and total system design.   Each of these subjects is generating considerable interest at the present time.’

“Now do you agree with their statement that a review of the state of the art includes the hardware marketed during the time the state of the art is reviewed?

“A Well, that's what they apparently did, yes.

“Q Do you agree with that statement?

“A If they did it, then that's what they did, you know.   I mean, it tends to be a truism.   I can't disagree with that.   If they represent they reviewed the state of the art, items that are being marketed, hardware items, and apparently that's what they did, sir.   I can't comment further on it because I don't know.

“Q I don't know if I am making myself clear.   Let me just ask it this way.

“A All right.

“Q Do you agree with their statement that the state of the art also includes the hardware that's marketed?

“A Yes, I would include it.

“Q Thank you, sir.”

In summary, the witness agreed that in a review of the state of the art the expert considers the products being sold in the marketplace.   He did not say that the typical product represented the state of the art.   Before proceeding, we pause to review the use of the term state of the art.

 In product liability cases the jurors are to use hindsight to determine if the product's design embodies “excessive preventable danger.”  (Barker v. Lull Engineering Co., supra, 20 Cal.3d 413, 430, 143 Cal.Rptr. 225, 573 P.2d 443.)   In doing so the “jury may consider, among other relevant factors, the gravity of the 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 consequences to the product and to the consumer that would result from an alternative design.”   (Id., at p. 431, 143 Cal.Rptr. 225, 573 P.2d 443.)   Accordingly, the state of the art must be a reference to optimum conditions, not average ones.

 Another court has summarized this concept in describing a defective product as one in which “the design feature which caused the injury created a danger which was readily preventable through the employment of existing technology at a cost consonant with the economical use of the product.”  (Buccery v. General Motors Corp. (1976) 60 Cal.App.3d 533, 547, 132 Cal.Rptr. 605.)   The focus is on “existing technology,” not mere practice.   In fact, even if the defendant acted as a reasonably prudent manufacturer would have under the circumstances, because of the state of the art, i.e., industry capabilities, the jurors may find the product to be unsafe in a strict product liability case, as distinguished from one brought on a negligence theory.  (Barker v. Lull Engineering Co., supra, 20 Cal.3d 413, 434, 143 Cal.Rptr. 225, 573 P.2d 443.)

Professor Wade aptly notes:  “And what about ‘state of the art’?  ‘State of the art’ is a chameleon-like term, referring to everything from ordinary customs of the trade to the objective existence of technological information to economic feasibility.   Its meanings are so diverse and so easily confused that the wise course of action, I think, is to eschew its use completely.”  (Wade, On the Effect in Product Liability of Knowledge Unavailable Prior to Marketing (1983) 58 N.Y.U.L.Rev. 734, 750–751, fn. omitted.)

Plaintiff's expert properly responded to the questions asked of him.   The state of the art as he used the term necessarily included consideration of the safest products made by the industry.   The capability of the industry may be found in what has already been accomplished as well as what is technologically feasible.   However, this consideration of the hardware being sold in the trade is undertaken to discover capability rather than current effort or lack of it.

The expert's testimony on the state of the art took place on June 24.   By July 16 the jurors' probable uncertainty regarding the proper effort to be required of the manufacturer came to an end.   When defendant sought to introduce evidence that a competitor's baby carriers did not contain any warning against use in vehicles, the following exchange took place in front of the jurors:

“MR. YOUNGER [Plaintiff's Counsel]:  Well, all right.   My objection is that it is irrelevant whether another manufacturer put warnings on or didn't put warnings on.

“THE COURT:  I would agree that what the other manufacturers put on there is irrelevant.

“MR. YOUNGER:  The question is whether this product is defective.

“MR. PARKS [Defendants' Counsel]:  Your Honor, may I speak to what Mr. Severy [plaintiff's expert] testified to on testimony here that the state of the art included what other people were doing at the time?   In light of that, Your Honor, it's relevant.

“THE COURT:  I think you're right.   Mr. Severy did state that the state of the art was what other manufacturers were doing.   I will allow the question.

“MR. YOUNGER:  Mr. Severy's only point was, Your Honor, that because there were several baby carriers, some safe and some unsafe, it was hard for consumers to know which ones were safe and which ones—

“MR. PARKS:  Your Honor, I would have stopped Mr. Severy from arguing to the jury.

“THE COURT:  I think he has argued your case.   As I recall, Mr. Severy very clearly stated that state of the art included what other manufacturers were doing.

“MR. YOUNGER:  Well, Your Honor, so whatever way you want to—

“THE COURT:  I will overrule your objection, Mr. Younger.”

 Having informally instructed the jurors that what everybody does or does not do is part of the state of the art, and then formally directing a defense verdict if the jury finds conformance with the state of the art, the error appears incurable.   When faced with conflicting instructions appellate courts look to a number of factors to determine whether the error has been prejudicial.   One factor is whether “respondent's argument to the jury may have contributed to the instruction's misleading effect․”  (LeMons v. Regents of University of California (1978) 21 Cal.3d 869, 877, 148 Cal.Rptr. 355, 582 P.2d 946.)

During his argument defense counsel repeatedly made use of the court's misinterpretation of the term state of the art.   For example:

“Got the automobile and the advent of the automobile brings on a lot of problems.   Every year we're learning about the automobiles and safety in automobiles and what to do with automobiles and how to engineer automobiles.   Every year the state of the art changes.   Every year we're hopeful that we change what the state of the art is.   Every year we know the state of the art changes.   It takes a long time to get things in gear.   This is the way it was being done.   Must have been state of the art according to Dr. or Mr. Severy's deposition, what people were doing.”

Therefore, according to defense counsel, if this is the way it was being done, it is state of the art;  and then, according to the court instruction:  “[I]f you find that the Infanseat [sic ] was made and marketed in accordance with the state of the art, then you must find that it was not defective at the time it left the hands of the manufacturer.”   This instruction completely eviscerated the preceding proper admonition not to consider evidence of custom and practice.   Prejudice is undeniable.

PUNITIVE DAMAGES EVIDENCE

Defendant also contends that because plaintiff sought punitive damages she brought into issue defendant's culpability and, therefore, made relevant the conduct of other manufacturers, vis-a-vis the conduct of defendant.   The fallacy of this argument becomes readily apparent upon examination.

 In deciding whether to award punitive damages, the jury was to decide whether defendant acted with malice, that is, conduct which is carried on by the defendant with a conscious disregard for the rights or safety of others.  (Taylor v. Superior Court (1979) 24 Cal.3d 890, 895, 157 Cal.Rptr. 693, 598 P.2d 854.)   The fact that similar conduct was or was not engaged in by other manufacturers is irrelevant to the question of whether defendant consciously disregarded the rights and safety of others.   The morals of the marketplace make an improper measuring stick upon which to gauge maliciousness of a particular manufacturer's conduct.   Indeed, an award of punitive damages seeks not only to punish, but to deter.   Defendant would have us embrace the notion that where deterrence is most needed, that is, where the alleged culpable conduct of the defendant pervades an industry, defendant may seek to excuse his conduct by showing that “Everybody else is doing it.”

After the Supreme Court held that drunk drivers who cause personal injuries may be subjected to punitive damages, it was suggested that those whose conduct took place prior to the decision were not on notice and could not be “deterred,” and therefore the decision should not be given retroactive effect.   In Peterson v. Superior Court (1982) 31 Cal.3d 147, 181 Cal.Rptr. 784, 642 P.2d 1305, the argument was rejected.  “Defendant's protestation that the principle of fair warnings precludes the imposition of punitive damages was recently considered and rejected in Grimshaw v. Ford Motor Co. (1981) 119 Cal.App.3d 757, 174 Cal.Rptr. 348.”  (Peterson, supra, 31 Cal.3d at p. 160, 181 Cal.Rptr. 784, 642 P.2d 1305.)   Whether one intends to get drunk and drive, or to manufacture and sell a product with disregard for the probability its use will cause injury, evidence that others do the same thing is irrelevant to the question of punitive damages.   In Grimshaw the defendant argued that “its conduct was less reprehensible than those for which punitive damages have been awarded in California in the past․”  (Grimshaw v. Ford Motor Co., supra, 119 Cal.App.3d 757, 818, 174 Cal.Rptr. 348.)   Comparison of the conduct and the punitive damages awarded in other cases was found to be improper.  (Id., at pp. 818–819, 174 Cal.Rptr. 348.)

IDENTIFICATION OF THE PRODUCT AND ITS USE

Next, defendant maintains that evidence of custom and practice, including evidence of no warnings, was relevant to the issue of “identification of the product line involved.”   At trial there was no question that the carrier used by plaintiff was an Infantseat and manufactured by defendant.   Defendant suggests, however, by introducing evidence of what other manufacturers did, it provided “evidence that baby carriers were not part of its or any one elses [sic ] car crash seat product line and that therefore a comparison of the crash performance of baby carriers to the performance of car crash seats was a comparison of apples to oranges.”

 The issue in a product liability case is not whether a product is defective for its intended uses, but whether it is defective for its foreseeable uses.  (Barker v. Lull Engineering Co., supra, 20 Cal.3d 413, 426, fn. 9, 143 Cal.Rptr. 225, 573 P.2d 443;  Grimshaw v. Ford Motor Co., supra, 119 Cal.App.3d at p. 801, 174 Cal.Rptr. 348.)   Defendant, to rebut plaintiff's evidence, needed to show the lack of foreseeability of plaintiff's use, not its own intentions.   Again, the conduct of defendant is not in issue, but the adequacy of the product itself.

DEVELOPING TECHNOLOGY

 Finally, defendant claims that because car seats were a part of a “developing technology and changing state of the art,” conduct of other manufacturers was relevant.   Defendant contends that Grimshaw and Titus, wherein the appellate courts upheld the disallowance of custom and practice evidence and instructions, are distinguishable from the present case as the available alternative designs were well known throughout the respective industries.   We disagree.

Evidence of what other manufacturers were doing would be admissible if offered to show capability;  here, it was mere practice.   Proof that no alternate, safer design was feasible also would be admissible in the weighing process which compares risks with benefits.   The uncertain quality of an available alternate design may be relevant to punitive damages;  however, admission of such evidence does not open the door to proof that others in the trade were failing to use knowledge available to them.

CONCLUSION

Erroneous admission of evidence requires reversal only when, absent error, “plaintiff would have stood a reasonable chance of obtaining a more favorable verdict.  [Citations.]”  (Downing v. Barrett Mobile Home Transport, Inc. (1974) 38 Cal.App.3d 579, 525, 113 Cal.Rptr. 561.)   In the present case admission of several pieces of irrelevant evidence clearly disadvantaged plaintiff.   With the court's imprimatur, the jury was allowed to hear and consider the prevalency of similar child carrier devices, the fact that none of these products carried a warning against use in a car, and that none of these products lacking warnings had been recalled by the federal government.   The jury's attention was inexorably shifted toward the reasonableness of defendant's behavior and turned away from the design of the Infantseat.

The giving of appropriate jury instructions can reduce the prejudicial effect of erroneously admitted evidence.  (See 6 Witkin, Cal.Procedure (2d ed. 1971 pt. I) Appeal, § 312, p. 4291.)   Here, however, the jury instructions, combined with the judge's earlier remarks, only served to exacerbate, rather than cure the prejudice.

Because the errors flowing from the misuse of the term state of the art were so serious and almost amounted to an informal direction of a defense verdict, we need not address other claimed errors, including other instructional errors, the admission of information concerning Medi-Cal payments, and the defense comment to the jurors that plaintiff “would be taken care of” in any event.

The judgment is reversed.

FOOTNOTES

1.   At an in-chambers conference during Severy's cross-examination, wherein the court agreed to allow in evidence of custom and practice, the court intimated that evidence of custom and practice was relevant for the limited purposes of evaluating Severy's opinion or defendant's culpability on plaintiff's claim for punitive damages.   However, the court failed to admonish the jury during the admission of the evidence or to give a limiting instruction at the end of the trial, as it stated it intended to do.

WOOLPERT, Associate Justice.

PAULINE DAVIS HANSON, Acting P.J., and MARTIN, J., concur.