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Click here for the full text of this decision FACTS:Lise Hillhouse was driving her 1996 Plymouth Voyager minivan with her 9-year-old daughter in the front seat, wearing a seat belt, and her two younger children in the middle set seats. When she rear-ended the car in front of her, the air bags in the front seat deployed. Hillhouse’s daughter sustained injuries caused by the air bag. Hillhouse sued Daimlerchrysler, alleging design and marketing defects. Inside Hillhouse’s vehicle were two warnings. One, which had been added when the minivan in this case was first developed, stated that serious injury could result if a passenger was sitting too close to the instrument panel when the air bag deployed. A second label, one that was made standard in 1997, was placed beside the first. In addition to a pictograph of a child sitting facing the back with a line drawn through it, the warning had five bulleted points: 1. children 12 and under can be killed by the air bag; 2. the back seat is the safest place for children; 3. never put a rear-facing child in the front; 4. sit as far back as possible from the air bag; and 5. always use seat belts and child restraints. At trial, Hillhouse said she read both warnings together, in their entirety, to conclude that a child would be safe in the front seat as long as the child was properly restrained and sitting back in her seat. Hillhouse also said she did not agree that the back seat was the safest place for children. In her case, with her smaller children in the middle set of seats, Hillhouse would not have been able to hear her daughter in the back seat. She also worried that she would not be able to get to her daughter in the event the van caught on fire after being hit from behind. Also, she thought the front seat � with an adjustable shoulder strap and headrest � was safer than the back seat, which had none. On the design defect issue, Hillhouse presented the testimony of Dr. Joseph Burton, a medical forensic expert. Burton testified that by reducing the energy of an air bag, fewer and less severe injuries would result. Burton could not specify the degree to which Hillhouse’s daughter’s injuries would have been reduced. Though he conducted one test, using Hillhouse’s other daughter as a surrogate, to reach his conclusion, but he did not investigate the characteristics of how the seat belt would lock up during deceleration of the vehicle, which inhibits the passenger’s forward movement. He also admitted that he was not a design engineer. A jury returned a $3.5 million verdict for Hillhouse. The jury apportioned 30 percent of the fault to Hillhouse, and the trial court reduced the award for future medical expenses to $400,000. HOLDING:Reversed and rendered. On the defective marketing issue, the court explains that to prove causation, plaintiffs enjoy a presumption that adequate warnings would have made a difference. Part of that presumption is another presumption that the proper warnings would have been followed. If inadequate warnings are provided, no presumption arises that a plaintiff would have followed a better warning if following the inadequate warning would have prevented the injuries. The court examines Hillhouse’s testimony about how she interpreted the two warnings, and about her opinions about the safety of the back versus the front seats. To formulate her opinions, Hillhouse had to reach two conclusions directly in conflict with the two child-specific warnings: “First, she had to assume that the warning that children could be killed by the airbag only applied if the child was not belted. Second, as she admitted in testimony, [Hillhouse] had to disagree with the warning that the back seat is the safest place for children. Had [Hillhouse] acted in accordance with the warnings provided specifically for the safety of children, the injury to Ashlee would not have occurred.” The court then turns to the design defect claim, under which Hillhouse had to prove that there was a safer alternative design, that the safer alternative would have prevented or significantly reduced the risk of injury, without substantially impairing the product’s utility, and that the safer alternative was both technologically and economically feasible when the product left the manufacturer’s control.” One safer design originally advanced was to place the seats outside the “air bag danger zone,” but that option was not fully pursued at trial. The other option, a de-powered air bag was what Burton testified about. The court accepts Daimlerchrysler’s argument that Burton’s testimony should not have been admitted because it was unreliable and not supported by any meaningful analysis. The court mentions that Burton performed only one test (with the sister as a surrogate), but that the test was based on speculation: where the front seat was positioned, whether the injured daughter was restrained by her seat belt, how and to what degree the seat belt locked her in place upon deceleration, and her position when she impacted with the air bag. Nor did he rely on a single test to form his opinion on whether a de-powered air bag would have prevented or lessened the girl’s injuries. Consequently, Burton’s testimony was legally insufficient to support a finding that Hillhouse’s alternative design would have prevented or significantly reduced the risk of her daughter’s injuries. Furthermore, Hillhouse did not present evidence to support the jury’s conclusion that the number of bag-deployed injuries avoided or lives saved by adopting the alternative design would be greater that the corresponding number of injuries sustained or lives lost as a result of the adoption. OPINION:Green, J.; Green, Angelini and Marion, JJ. CONCURRENCE AND DISSENT:Marion, J. The author concurs on the design defect ruling, but dissents on the marketing defect ruling. A jury might have reasonably concluded that neither the 1994 nor the 1997 warning labels when read together conveyed a fair indication of the nature and extent of the danger posed by a deploying air bag to a properly restrained occupant who was sitting back in the seat, an arm’s length or more from the instrument panel.

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