American Honda Motor Co., Inc. v. Sarah Milburn

Supreme Court of Texas

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No. 21-1097

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American Honda Motor Co., Inc.,

Petitioner,

v.

Sarah Milburn,

Respondent

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On Petition for Review from the

Court of Appeals for the Fifth District of Texas

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JUSTICE DEVINE, joined by Justice Boyd, dissenting.

Under Texas law, a product manufacturer is presumed not liable

for injuries caused by a design defect when the design complied with

applicable federal safety standards governing the alleged product risk.1

But the Legislature expressly made this statutory presumption

“rebuttable,” entrusting our juries—not federal bureaucrats—to

ultimately determine whether federal safety standards adequately

protect Texas citizens. One way a plaintiff can rebut the presumption

is to establish that the relevant standards “were inadequate to protect

1 TEX. CIV. PRAC. & REM. CODE § 82.008(a).

the public from unreasonable risks of injury or damage”; nothing more,

nothing less.2

In this case, the jury found that (1) Honda designed an

unreasonably dangerous detachable seatbelt system that caused a

young woman to be clotheslined in a car crash, resulting in quadriplegia

paralysis, and (2) the federal safety standard that greenlighted this

design was inadequate to protect the public from unreasonable risks.

The Court nevertheless overturns the jury’s verdict. In doing so, the

Court measures the evidence of the standard’s inadequacy against

newly crafted requirements that are not only extra-textual but also

unduly deferential to the federal bureaucrats’ decision-making process,

which only sets forth the “bare minimum” standards for selling a vehicle.

I respectfully dissent and would affirm the jury’s verdict. When

the evidence is considered in light of the statute’s plain language, which

the charge tracked, it is legally sufficient to support the jury’s express

finding that the relevant federal safety standard was inadequate to

protect the public. But even if the Court’s newly adopted hurdles were

proper, this grievously injured young woman should—at the very least—

be given a fair opportunity to clear them. The Court’s unwillingness to

remand for a new trial suggests an awareness that these statutory

embellishments would be impossible to satisfy, which effectively

converts the legislatively mandated “rebuttable” presumption into one

that is conclusive.

2 Id. § 82.008(b)(1). Alternatively, the plaintiff may rebut the

presumption by establishing that the manufacturer “withheld or

misrepresented information or material” relevant to the federal government’s

adequacy determination of the safety standards at issue. Id. § 82.008(b)(2).

2

I

In construing statutes, the starting point must always be the text:

“the alpha and the omega of the interpretative process.”3

Section 82.008(a) of the Texas Civil Practice and Remedies Code creates

a “rebuttable presumption” that a product manufacturer is “not liable”

for injury caused by a product design if the manufacturer establishes

(1) the “design complied with mandatory [federal] safety standards or

regulations” that (2) were “applicable to the product at the time of

manufacture” and (3) “governed the product risk that allegedly caused

the harm.”4 If a manufacturer meets this burden, Section 82.008(b)(1)

allows the claimant to rebut the presumption by establishing that “the

mandatory federal safety standards or regulations applicable to the

product were inadequate to protect the public from unreasonable risks

of injury or damage.”5

Belying the statutory text, the Court adopts a new rule requiring

a plaintiff to establish one of two limited options to demonstrate a

standard’s inadequacy and rebut the presumption of nonliability:

(1) the agency’s decision-making in enacting the standard was

either arbitrary or capricious—a highly deferential

standard—or lacked “cogen[cy]” in light of a “comprehensive

3 BankDirect Cap. Fin., LLC v. Plasma Fab, LLC, 519 S.W.3d 76, 86

(Tex. 2017).

4 TEX. CIV. PRAC. & REM. CODE § 82.008(a).

5 Id. § 82.008(b)(1).

For purposes of this analysis, I assume that Honda

adduced sufficient evidence to invoke the statutory presumption.

3

review of the various factors and tradeoffs . . . considered in

adopting that safety standard,”6 or

(2) post-approval developments rendered the safety standard no

longer adequate to protect the public.7

If not, according to the Court, “neither we nor a jury can deem a

particular regulation ‘inadequate’ to prevent an unreasonable risk of

harm to the public as a whole.”8

But nothing in the statutory text so restrictively circumscribes

the jury’s role in determining this question of fact.9 “When decoding

statutory language, we are bound by the Legislature’s prescribed means

(legislative handiwork), not its presumed intent (judicial guesswork).”10

6 Ante at 29 (citing Nat’l Truck Equip. Ass’n v. NHTSA, 711 F.3d 662,

669 (6th Cir. 2013), which applied an “arbitrary and capricious” standard of

review to invalidate federal agency action under the Administrative Procedure

Act), 29-33 (requiring extensive evidence of “the various considerations” the

federal agency “must take into account in making regulatory determinations”

and a “comprehensive review of the various factors and tradeoffs”).

7 Id. at 33-34 (noting that “subsequent developments,” including “a

material change in technology or a proliferation of new studies or data about

risks and injuries associated with a compliant product,” could demonstrate a

standard’s inadequacy).

8 Id. at 33. Although the Court denies limiting the rebuttal grounds to

only two stated options, the Court fails to identify any others. See id. at 34

n.23; infra at note 60 and accompanying text.

9 See Kim v. Am. Honda Motor Co., 86 F.4th 150, 170 (5th Cir. 2023)

(“[W]hether the presumption has been rebutted is a question of fact for the

jury.”); Wright v. Ford Motor Co., 508 F.3d 263, 274 (5th Cir. 2007) (noting that

it is “logical to conclude” from the statutory language that whether the

presumption has been rebutted is a fact question for the jury unless

inadequacy is established as a matter of law).

10 BankDirect Cap. Fin., LLC v. Plasma Fab, LLC, 519 S.W.3d 76, 86-87

(Tex. 2017).

4

According to the statute’s plain language, manufacturers are entitled to

rely on the federal regulation only insofar as the safety standard was—

in fact—adequate “to protect the public from unreasonable risks of

injury or damage.”11 Although a jury may be informed of and persuaded

by a federal agency’s decision-making process in promulgating the

safety standard, the Legislature entrusted the final factual

determination of that standard’s adequacy to our juries alone, not

federal agencies.12

11 TEX. CIV. PRAC. & REM. CODE § 82.008(b)(1). The Court asserts that

“the Legislature made a policy decision that manufacturers at risk of liability

for injuries caused by an allegedly defective design are entitled to rely on a

federal agency’s cogent determination that the pertinent risks associated with

that design are not unreasonable.” Ante at 32. Perhaps legislators were

motivated by this policy in enacting the rebuttable presumption, but the

enacted language says nothing of the kind. See In re Tex. Educ. Agency, 619

S.W.3d 679, 687 (Tex. 2021) (“The polestar of statutory construction is

legislative intent, which we determine from the enacted language.”);

BankDirect, 519 S.W.3d at 86 (“But our 181 legislators—who may have had

181 different motives, reasons, and understandings—nowhere codified an

agreed purpose.”). And perhaps this may be good policy, “but judicial policy

preferences should play no role in statutory interpretation.” McLane

Champions, LLC v. Hous. Baseball Partners LLC, 671 S.W.3d 907, 918 (Tex.

2023); see BankDirect, 519 S.W.3d at 78 (“[D]ivining what the law is, not what

the interpreter wishes it to be” is “the foremost task of legal interpretation.”).

12 To the extent federal law preempts a products-liability claim, the

decision would be out of the jury’s hands and for the federal agency. But

federal preemption does not apply here because even if state tort liability has

the practical effect of restricting a manufacturer’s choice of seatbelt design, it

“does not ‘[s]tand as an obstacle to the accomplishment . . . of the full purposes

and objectives’ of federal law.” Williamson v. Mazda Motor of Am., Inc., 562

U.S. 323, 336 (2011) (quoting Hines v. Davidowitz, 312 U.S. 52, 67 (1941))

(holding that a federal safety standard did not preempt a tort claim premised

on a manufacturer’s failure to install safer seatbelts); see 49 U.S.C.

§§ 30102(a)(10) (describing a “motor vehicle safety standard” as a “minimum

standard”), 30103(e) (“Compliance with a motor vehicle safety standard

5

The Court cabins the jury’s role and divines these limitations by

asserting, “If the standard for rebutting the presumption mirrored the

standard for a product defect, then the presumption would serve no

purpose at all.”13 But this argument rests on a faulty premise. In Utah,

for example, the standards for a product defect and rebutting a similar

presumption mirror each other: both require proof by a preponderance

of the evidence that the product is unreasonably dangerous.14 But the

presumption is not “a nullity,” according to our sister court, because it

“gives a kind of legal imprimatur to the significance of compliance with

federal standards,” “benefit[ting] the manufacturer.”15 The

presumption “clearly communicates” and “highlight[s] for the jury” “the

significance of compliance,”16 making a properly instructed jury “less

prescribed under this chapter does not exempt a person from liability at

common law.”); MCI Sales & Serv., Inc. v. Hinton, 329 S.W.3d 475, 487-99 (Tex.

2010) (holding that a motor vehicle safety standard did not preempt a state

tort claim asserting that a bus manufacturer should have installed safer

seatbelts and laminated-glass windows).

13 Ante at 25.

14 Egbert v. Nissan N. Am., Inc., 167 P.3d 1058, 1061 (Utah 2007) (citing

UTAH CODE § 78–15–6(3), now numbered as § 78B–7–703); Niemela v.

Imperial Mfg., Inc., 263 P.3d 1191, 1196 n.4 (Utah Ct. App. 2011) (“The proof

required to rebut the presumption appears to be identical to the proof required

to establish the first element of a prima facie case. Thus, with or without the

presumption, the plaintiff must prove by a preponderance of the evidence that

the product is unreasonably dangerous.” (internal citations omitted)).

15 Egbert, 167 P.3d at 1062 (agreeing “that the Legislature must have

intended to benefit the manufacturer by creating the presumption of

nondefectiveness”); see Niemela, 263 P.3d at 1196 n.4 (noting that “the two

standards, though identically worded, are not necessarily identically onerous”

as a practical matter).

16 Egbert, 167 P.3d at 1062.

6

likely to conclude that a product is unreasonably dangerous.”17 Thus,

even if the standards mirror each other, the presumption would not be

meaningless. And regardless, the effect of any mirroring provides no

basis for importing extra-textual limitations on when a jury could find

that a federal safety standard was inadequate to protect the public.18

I nevertheless agree with the Court that, in Texas, the statutory

language governing rebuttal of the presumption does not perfectly

mirror the liability standard. Rather, it shifts the factfinder’s focus from

the product and its intended user to the safety standard and to the

public as a whole. As a result, when the presumption applies, liability

generally may not be imposed unless a jury finds both that the product

was defectively designed and that the applicable safety standard was

inadequate.19 Although these findings of fact are similar, the Court’s

approach is not necessary to imbue the presumption with meaning

because the jury would weigh and balance the evidence under the

separate inquiries differently.

To determine that a product is defectively designed, “the jury

must conclude that the product is unreasonably dangerous as designed,

17 Niemela, 263 P.3d at 1196 n.4 (discussing Egbert, 167 P.3d at 1062).

18 See PHI, Inc. v. Tex. Juv. Just. Dep’t, 593 S.W.3d 296, 305 (Tex. 2019)

(“[N]o court has the authority, under the guise of interpreting a statute, to

engraft extra-statutory requirements not found in a statute’s text.”).

19 See Wright v. Ford Motor Co., 508 F.3d 263, 274 (5th Cir. 2007) (“[If]

rebutting evidence is not such as to require as a matter of law that the federal

standards be held inadequate, but rather presents a fact question in that

respect, then, in a jury tried case, it appears logical to conclude that the statute

proceeds on the assumption that any such fact question as whether the

presumption has been rebutted will be submitted to the jury.”).

7

taking into consideration the utility of the product and the risk involved

in its use.”20 In balancing whether the product’s risks outweigh its

utility—thereby rendering the product design unreasonably

dangerous—this Court has specified five factors to be considered:

(1) the utility of the product to the user and to the public as

a whole weighed against the gravity and likelihood of

injury from its use; (2) the availability of a substitute

product which would meet the same need and not be unsafe

or unreasonably expensive; (3) the manufacturer’s ability

to eliminate the unsafe character of the product without

seriously impairing its usefulness or significantly

increasing its costs; (4) the user’s anticipated awareness of

the dangers inherent in the product and their avoidability

because of the general public knowledge of the obvious

condition of the product, or of the existence of suitable

warnings or instructions; and (5) the expectations of the

ordinary consumer.21

“This balancing is for the jury unless the evidence allows but one

reasonable conclusion.”22

When a safety standard greenlights an unreasonably dangerous

product to be sold on the open market, it exposes the public to the risks

of injury or damage associated with that product’s use. For that reason,

these risk–utility considerations also would be pertinent to whether the

20 Emerson Elec. Co. v. Johnson, 627 S.W.3d 197, 205 (Tex. 2021)

(quoting Am. Tobacco Co. v. Grinnell, 951 S.W.2d 420, 432 (Tex. 1997)).

21 Id. (quoting Grinnell, 951 S.W.2d at 432); see id. at 209 (noting that

“[w]e would not today conclude that including a legally correct instruction

about the[se] factors was charge error” and assuming, without deciding, that

“a listing of the[se] factors would assist the jury in determining whether a

design defect exists”).

22 Genie Indus., Inc. v. Matak, 462 S.W.3d 1, 10 (Tex. 2015).

8

standard was “inadequate to protect the public from unreasonable risks

of injury or damage.”23 As with the design-defect inquiry, the balancing

would be for a jury alone, so long as the conclusion is one a reasonable

jury could reach. But given the statute’s shift in emphasis for rebutting

the presumption, a jury would balance these considerations differently

by placing greater weight on the evidence of the factors that implicate

the public as a whole. Rarely are these holistic inquiries conclusively

proven as a matter of law,24 and in most cases, a finding that a product

is unreasonably dangerous would not necessitate a finding that the

standard is inadequate to protect the public.25

By requiring both findings of fact to impose liability, the statutory

scheme offers far more than what the Court describes as “illusory

protection to compliant manufacturers.”26 In contrast, the Court unduly

restricts the focus to the federal government’s decision-making, deriving

exclusive requirements to rebut the presumption—e.g., an

arbitrary-or-capricious standard or a “comprehensive review”—that are

neither expressed in nor contemplated by the statutory text. Honda

23 TEX. CIV. PRAC. & REM. CODE § 82.008(b)(1); see ante at 27

(acknowledging that evidence of a defective design “can certainly also be

relevant to the adequacy of the regulation allowing that design”).

24 See Genie Indus., 462 S.W.3d at 3 (noting that whether a product’s

risks outweigh its utility “is usually one of fact for the jury”).

25 I therefore disagree with the Court’s characterization of my position

as requiring the following analysis: “a defendant is liable for a defective design

if the plaintiff proves X, unless the product complies with an applicable federal

safety standard, in which case the defendant is not liable unless the plaintiff

proves X (which has already been proven).” Ante at 28.

26 Id.

9

likewise argues that “recognition of agency expertise . . . requires that a

jury’s evaluation of federal safety regulations must be cabined”;

otherwise, a jury would have “free rein to second-guess and effectively

overrule the expert determinations of federal agencies” and “nullif[y]”

federal standards.

These policy arguments have no textual basis. The statute does

not pose the question of whether the promulgating federal agency—

rightly or wrongly—considered the safety standard adequate to protect

the public. As I have already noted, a federal agency’s determination

may have persuasive force, but the inadequacy question is for the jury

alone. Nor is this the power to nullify federal standards or overrule

agency decisions. A federal safety regulation still serves as a minimum

standard even if a jury disagrees with the promulgating agency and

finds it inadequate to protect the public.27 And by complying with the

applicable minimum standard, a manufacturer acquires the protection

of a presumption that imposes an additional hurdle before liability will

attach while still bearing any resulting tort liability “as a cost of doing

business.”28

27 See MCI Sales & Serv., Inc. v. Hinton, 329 S.W.3d 475, 495 (Tex. 2010)

(“[W]e must be mindful that Congress generally intended the federal safety

standards to set a minimum standard for performance and allowed juries to

determine in particular cases if the vehicle manufacturer should have done

more.”).

28 Cf. Hyundai Motor Co. v. Alvarado, 974 S.W.2d 1, 12 (Tex. 1998)

(“[T]he imposition of common-law liability does not impose any particular

safety standard upon a manufacturer; the manufacturer may choose to comply

with the minimum federal standards and bear tort liability as a cost of doing

business.”).

10

II

Because the question of whether a safety standard adequately

protects the public falls squarely within the factfinder’s discretion, I now

turn to whether legally sufficient evidence supports the jury’s finding.

The “test for legal sufficiency must always be whether the evidence at

trial would enable reasonable and fair-minded people to reach the

verdict under review.”29 “All the record evidence must be considered ‘in

the light most favorable to the party in whose favor the jury verdict has

been rendered,’ and ‘every reasonable inference deducible from the

evidence is to be indulged in that party’s favor.’”30 Judgment against a

jury verdict is proper “only when the law does not allow reasonable

jurors to decide otherwise.”31 When measured against the charge, which

tracked the statutory language establishing an injured party’s rebuttal

burden, the evidence here surpasses the low legal-sufficiency threshold.

As brief background, twenty-three-year-old Sarah Milburn

suffered quadriplegia paralysis after being clotheslined by the shoulder

strap of her seatbelt in a rollover collision while taking an Uber ride in

a 2011 Honda Odyssey. Sitting in the middle seat of the third row,

Milburn had pulled the ceiling-mounted belt across her body, attaching

it to the buckle at her left hip. But because the belt’s detachable anchor

was not connected to the minibuckle at her right hip, her lap was left

unrestrained. The following diagram depicts the configuration:

29 City of Keller v. Wilson, 168 S.W.3d 802, 827 (Tex. 2005).

30 Gunn v. McCoy, 554 S.W.3d 645, 658 (Tex. 2018) (quoting Bustamante

v. Ponte, 529 S.W.3d 447, 456 (Tex. 2017)).

31 City of Keller, 168 S.W.3d at 823.

11

Honda designed this system so that when the anchor is detached and

the belt has retracted into the ceiling, the seat may be folded down into

a recessed compartment in the floor pan, providing extra cargo space.

This design was incorporated into more than 800,000 Honda Odysseys

that were sold in the United States from 2011 through 2017. No one

disputes that Honda’s design complied with safety standard 208 of the

Federal Motor Vehicle Safety Standards (FMVSS 208), promulgated by

the National Highway Traffic Safety Administration (NHTSA).32

The evidence presented at trial is legally sufficient to support the

jury’s finding that FMVSS 208 was inadequate to protect the public from

unreasonable risks. First, the jury heard testimony that the seatbelt

design was unreasonably dangerous, which the Court agrees is “relevant

to the adequacy of the regulation allowing that design.”33 Milburn’s

human-factors expert, Joellen Gill, opined it was foreseeable that

32 See 49 C.F.R. § 571.208. Although Milburn does not dispute that

FMVSS 208 “applied to the Odyssey and w[as] complied with,” she challenges

whether the safety standard governed the alleged product risk, see supra

note 5, and was adequate to protect the public from unreasonable risks.

33 Ante at 27.

12

(1) owners would not reliably maintain the detachable seatbelt in the

anchored position, (2) a person sitting in the third-row middle seat

would not reliably use the seatbelt correctly, and (3) a passenger would

fail to recognize that they were not properly buckled.34 Milburn’s

engineering expert, Steven Meyer, discussed the importance of having a

lap restraint during a rollover collision to hold the passenger’s entire

lower torso in place. If the passenger is wearing only a shoulder belt

due to misuse by the vehicle owner or passenger, the seatbelt becomes

an injurious and potentially fatal device because it is dangerously close

to the passenger’s neck. A safer, feasible alternative design that should

have been used, Meyer opined, is an all-belts-to-seat design (also called

a seat-integrated belt system) that is anchored at the top and bottom of

the seat rather than the ceiling-mounted detachable belt design.35

34 Gill also opined that Honda failed to effectively mitigate these

hazards and that Milburn’s actions were consistent with foreseeable human

behavior. As a human-factors expert, Gill was qualified to testify about how

people would interact with the detachable seatbelt system without having

specialized experience in the automotive industry. See, e.g., Tyson Fresh

Meats, Inc. v. Abdi, No. 07-12-00546-CV, 2014 WL 2447472, at *3-4 (Tex.

App.—Amarillo May 28, 2014, pet. denied) (holding that the trial court did not

abuse its discretion by admitting testimony from a human-factors expert). And

to the extent Gill relied on usability studies conducted by Milburn’s counsel,

this did not render her testimony unreliable because the conditions in the

studies were “substantially similar” to those during the accident. See Fort

Worth & Denver Ry. v. Williams, 375 S.W.2d 279, 281-82 (Tex. 1964) (holding

that out-of-court experiments are generally admissible when there is “a

substantial similarity between conditions existing at the time of the occurrence

which gives rise to the litigation and those in existence at the time the

experiment is conducted for demonstration purposes”).

35 Honda argues there is no evidence of a safer, feasible alternative

design. The court of appeals sufficiently addressed this issue, and I find no

reversible error in its conclusion that Milburn “presented some evidence, and

13

Next, the jury heard testimony that FMVSS 208 is a “minimum

standard” that does not account for the detachable belt’s usability.36 As

Meyer explained, FMVSS 208 is the “bare minimum” that must be

complied with to legally sell a vehicle in the United States, and because

it “can only cover as much as [it] can cover,” “a lot of it is left to the

manufacturers.” Meyer confirmed that nothing in FMVSS 208

addresses the risk that Milburn faced on the night of the accident—the

risk that the belt would be improperly used with just the shoulder belt,

leaving the passenger’s lap unrestrained.

Although NHTSA expressly recognized that “detachable belts can

be misused,”37 the text and regulatory history discussed in the Federal

Register provide no express indication that the agency analyzed or

tested for the risk of misuse, as the Court acknowledges.38 The Court

instead simply surmises that NHTSA must have considered the safety

therefore legally sufficient evidence, to support the jury’s finding that the

[all-belts-to-seat] design is a safer alternative to the detachable anchor seat

belt design.” 668 S.W.3d 6, 26 (Tex. App.—Dallas 2021).

36 See 49 U.S.C. § 30102(10) (defining “motor vehicle safety standard”

as “a minimum standard for motor vehicle or motor vehicle equipment

performance”). Among other things, FMVSS 208 permits vehicle

manufacturers, for certain inboard seating positions, to use “a belt

incorporating a release mechanism that detaches both the lap and shoulder

portion at either the upper or lower anchorage point, but not both,” provided

that the means of detachment is “a key or key-like object.” 49 C.F.R. § 571.208.

37 Federal Motor Vehicle Safety Standards; Occupant Crash Protection,

69 Fed. Reg. 70904, 70908 (Dec. 8, 2004) (codified at 49 C.F.R. pts. 571, 585).

38 Ante at 22 (concluding that FMVSS 208 governs the risk of misusing

detachable seatbelts despite acknowledging that “the regulation itself does not

discuss the risk that people will not understand how to operate the detachable

system”).

14

risks of misuse in its cost–benefit analysis.39 On cross-examination,

Honda’s seatbelt expert, Michael Klima, also acknowledged that

FMVSS 208 neither “analyzes the risk that people won’t understand

how to operate” the detachable seatbelt system nor requires any type of

usability testing to determine whether people understand the

double-latch system. According to Klima, this type of testing is left to

the manufacturers to address however they deem fit.

Finally, the jury heard evidence that NHTSA’s rationale for

allowing the detachable seatbelt design was unsound. Meyer discussed

that in promulgating FMVSS 208, NHTSA drew upon comments from

automobile manufacturers to conclude that adopting a seat-integrated

belt design would have cost only an additional $15 per seat, which he

described as “not terribly expensive.”40 Although NHTSA found this

system “particularly problematic for removable seats because of the

added weight,”41 Meyer explained that “[t]he weight penalty in this case

would be irrelevant because it’s a folding seat.” Comparing the benefits

of not spending $15 for a seat-integrated system to the risks of neck

injuries, which are often “permanently debilitating” or “fatal,” Meyer

opined, “it’s grossly outweighed.”

39 Id. at 22-23.

40 See Federal Motor Vehicle Safety Standards; Occupant Crash

Protection, 69 Fed. Reg. at 70908 (concluding that the total cost for an

integrated belt would be approximately $47 while a detachable belt system

would cost approximately $32).

41 See id. (“[W]e have decided to expand the detachability provision to

the inboard seating position of folding seats . . . . We believe that integrated

belt designs are not an optimal design for all types of seats. They appear to be

particularly problematic for removable seats because of the added weight.”).

15

By the end of trial, the jury had heard evidence that

(1) FMVSS 208 is a minimum standard that allows manufacturers to

produce and sell an unreasonably dangerous detachable seatbelt, (2) the

standard does not adequately account for the risks associated with the

seatbelt design, and (3) the seatbelt was incorporated not only in the

vehicle at issue but also in more than 800,000 other vehicles sold to the

public on the open market. Acting in its fact-finding role, the jury could

credit this evidence over any contrary evidence in finding that

FMVSS 208 was inadequate to protect the public from unreasonable

risks of injury or damage. Because a reasonable jury could conclude that

FMVSS 208 was inadequate to protect the public, the balancing and

weighing of evidence is for the jury alone. The Court should not disturb

its verdict.

III

In a concurring opinion, JUSTICE BLACKLOCK explains that a

safety regulation’s adequacy to protect the public is a fact question

requiring jurors to exercise an “essentially political judgment” that

courts must not “second-guess” by imposing their “own value-laden

policy judgments.”42 Consistent with my discussion above, I

full-heartedly agree that “a jury’s disagreement with the agency’s

decision should be essentially unreviewable.”43 Where we diverge is on

what constitutes a “sufficient evidentiary predicate” for the jury to

exercise that judgment.44

42 Ante at 3-4 (Blacklock, J., concurring).

43 Id. at 4.

44 Id. at 3.

16

The concurrence would require a “qualified regulatory expert” to

hold the jurors’ hands as they exercise their political judgment.45 Under

that view, a regulatory expert is necessary to explain the historical

context and the competing considerations and values an agency must

balance in promulgating a safety regulation.46 Such testimony may

undoubtedly be relevant and admissible either to show that a safety

regulation is inadequate to protect the public or as a controverting arrow

in a manufacturer’s quiver.47 But I cannot agree that a qualified

regulatory expert is always required to rebut the statutory presumption.

Jurors do not need a regulatory expert to tell them how to think,

process information, or exercise their political judgment. “Expert

testimony is required when an issue involves matters beyond jurors’

common understanding,”48 and individual judgment is certainly not

beyond an individual juror’s understanding. Jurors can second-guess a

federal agency’s decision without any particular type of expert

spoon-feeding them the historical context and considerations that

contributed to a promulgated regulation (to the extent such evidence is

45 Id. at 5.

46 Id.

47 Cf., e.g., Antrim Pharms. LLC v. Bio-Pharm, Inc., 950 F.3d 423,

430-31 (7th Cir. 2020) (“[C]ourts have permitted regulatory experts to testify

on complex statutory or regulatory frameworks when that testimony assists

the jury in understanding a party’s actions within that broader framework.”);

In re Fosamax Prods. Liab. Litig., 509 F. App’x 69, 72-73 (2d Cir. 2013) (relying

on a regulatory expert’s testimony to support a jury instruction regarding a

Florida statute’s analogous rebuttable presumption of nondefectiveness (citing

FLA. STAT. ANN. § 768.1256(1))).

48 Mack Trucks, Inc. v. Tamez, 206 S.W.3d 572, 583 (Tex. 2006).

17

even necessary for them to exercise the independent judgment the

statute contemplates).49

In this case, for example, Milburn’s expert Meyer, a licensed

lawyer as well as an engineer, testified that he had experience reviewing

the Federal Register, which NHTSA uses to provide notice of its

proposed rulemaking, solicit comments, and ultimately justify and

publish its regulations. On cross-examination, Meyer read into the

record and addressed portions of NHTSA’s published rationale for

adopting FMVSS 208.50 In so doing, Meyer described NHTSA’s role in

the federal government, acknowledged that anybody could submit

comments after a notice of proposed rulemaking,51 and discussed the

“history of the standard” as a response to “a congressional mandate

[Anton’s Law52] that the agency begin to phase in requirements for

49 As a practical matter, expert causation testimony is already required

in most design-defect cases, a costly endeavor for all involved. Mack Trucks,

206 S.W.3d at 583; Nissan Motor Co. v. Armstrong, 145 S.W.3d 131, 137 (Tex.

2004). Increasing costs by requiring another type of expert—for the sole

purpose of rebutting a statutory presumption—will only further impede

individuals from bringing potentially meritorious design-defect claims.

50 See Federal Motor Vehicle Safety Standards; Occupant Crash

Protection, 69 Fed. Reg. 70904, 70904-16 (Dec. 8, 2004) (codified at 49 C.F.R.

pts. 571, 585) (describing the background, summarizing public comments,

explaining the requirements of the final rule, conducting a cost–benefit

analysis, and adopting a final rule amending FMVSS 208).

51 See, e.g., Federal Motor Vehicle Safety Standards; Occupant Crash

Protection, 68 Fed. Reg. 46546, 46546-59 (proposed Aug. 6, 2003) (to be codified

at 49 C.F.R. pts. 571, 585) (describing background and safety concerns,

requesting comments, and proposing a rule amending FMVSS 208).

52 Anton’s Law (Improvement of Safety of Child Restraints in Passenger

Motor Vehicles), Pub. L. No. 107-318, 116 Stat. 2772 (2002).

18

lap/shoulder belts for all rear seating positions wherever practical.”53

And in reference to the Federal Register, Meyer confirmed for the jury

that NHTSA considered the following in adopting FMVSS 208:

 the possibility of requiring integrated belts;

 the cost of “strengthening both the seat and the floor pan” for

an integrated belt, which would be “approximately $47” while

“a detachable belt system would be $32”;

 “the additional weight added to a seat as a result of this

strengthening,” which would “make removability of the seats

impractical” according to some submitted comments, although

“[General Motors] noted that one of its vehicles has removable

seats with an integrated seat belt”;

 manufacturers appear to be moving away from removable

seats towards fold-down seats to provide additional

cargo-carrying capacity;

 “prohibiting detachability limits the effective use of the

cargo-carrying space” because “the shoulder belt would extend

from the upper anchorage down into the folded seat”; and

 the “possibility for misuse” of “only using the lap belt” could be

reduced by requiring a minibuckle with a “key or key-like

object to detach the belt,” although this addresses a “different

type of misuse” than only using the shoulder strap.54

In other words, the jury heard how NHTSA considered the

competing considerations of safety, cost, convenience, and practicality in

53 See Federal Motor Vehicle Safety Standards; Occupant Crash

Protection, 69 Fed. Reg. at 70904.

54 See id. at 70908-09.In this Court, Honda acknowledges that the “jury

could rely on NHTSA’s comments to the Final Rule amending FMVSS 208” as

evidence of what NHTSA considered and balanced “when promulgating

FMVSS 208” and that, although the relevant portion of the Federal Register

was not admitted into evidence, Meyer agreed on cross-examination “that

Honda’s counsel correctly read excerpts from the Final Rule to the jury.”

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declining to require a seat-integrated belt and allowing a detachable belt

for the middle seat of a vehicle’s third row. With this testimony and the

other trial evidence in mind, the jurors could make their own informed

judgment as to FMVSS 208’s adequacy to protect the public from

unreasonable risks: they knew “something about how the regulatory

process works” and had a “sense” of the “conflicting considerations and

competing values” that contributed to the regulation’s promulgation.55

In contrast to the concurrence, the Court implies that a regulatory

expert may not be necessary.56 Even so, its new requirements are no

less onerous. According to the Court, a jury’s inadequacy finding must

be supported by “a comprehensive review of the various factors and

tradeoffs NHTSA considered in adopting that safety standard.”57 The

Court does not demarcate when a jury’s review of relevant

considerations rises to the level of “comprehensive.”58 But in concluding

that Milburn’s evidence is legally insufficient, the Court instead nitpicks

about her expert’s failure to address granular considerations that the

Court presumes “would have affected NHTSA’s risk–benefit analysis.”59

55 See ante at 5 (Blacklock, J., concurring).

56 Ante at 33 n.21.

57 Id. at 32-33.

58 The Court merely states that “considerably more evidence of the

various considerations . . . is required than Milburn presented.” Id. at 30.

59 See id. at 31 (emphasis added); see also id. at 30-32 (criticizing

Milburn for not addressing how NHTSA’s analysis would have been affected

by the lower occupancy rate in a rear center seat, the lack of reports or

statistics of misuse, or the expectations of whether a driver would have reliably

attached the detachable belt before transporting a passenger).

20

In effect, the Court requires that a plaintiff produce evidence

addressing all possible considerations that conceivably could affect a

federal agency’s analysis in adopting the safety regulation at issue. But

what the federal regulators considered is an entirely different question

from whether the adopted safety standard is, in the jury’s estimation,

inadequate to protect the public as a matter of fact. Federal regulators

could have considered everything they should have but still, at the end

of the day, got it wrong. The jury does not need to hear about the

regulatory process to conclude that compliance with the end product—a

minimum safety standard—was not enough to protect the public. And

although the Court pays lip service to leaving open the possibility that

a federal agency “simply got it wrong,”60 any such opening is illusory.

Requiring the jury to evaluate all possible considerations at varying

levels of granularity is nigh impossible—a herculean task to overcome.

Neither Section 82.008(b)(1)’s plain language nor our legal-sufficiency

standards require such a parsimonious approach.

Ultimately, a reviewing court must simply ask: was there a

sufficient evidentiary basis from which reasonable jurors could exercise

their political judgment to determine that a federal safety regulation

was inadequate to protect the public from unreasonable risks of injury

or damage? For all the reasons described above, the answer here is a

resounding yes.

60 Id. at 33 n.23.

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* * *

Under the language the Legislature enacted, a plaintiff seeking

to rebut the statutory presumption need only establish that the

applicable safety standard—whether rightly or wrongly adopted—was

inadequate as a matter of fact to protect the public from unreasonable

risks of injury or damage. Where text is clear, it is determinative, and

“[p]lain language disallows ad-libbing.”61 Forsaking this cardinal

principle, the Court engrafts onto Section 82.008(b)(1) an atextual and

heightened deference-to-the-agency standard for injured Texans to

rebut the nonliability presumption. Milburn should not be forced to

suffer the consequences of the Court’s deviation from the statutory text.

She proffered legally sufficient evidence to meet the statutory burden as

written, and the jury found in her favor.

But even if it were proper to overturn the jury’s verdict, justice

demands—at a minimum—that Milburn have a fair opportunity to

present evidence to satisfy the Court’s newly articulated standard for

rebutting the presumption.62 “The case for remand is especially

compelling in cases where, as here, [the Court has] substantially

clarified the law.”63 And the Court has previously done so when

61 BankDirect Cap. Fin., LLC v. Plasma Fab, LLC, 519 S.W.3d 76, 80

(Tex. 2017).

62 See TEX. R. APP. P. 60.3 (“[T]he Supreme Court may, in the interest

of justice, remand the case to the trial court even if a rendition of judgment is

otherwise appropriate.”).

63 Rogers v. Bagley, 623 S.W.3d 343, 358 (Tex. 2021)); see, e.g., Carowest

Land, Ltd. v. City of New Braunfels, 615 S.W.3d 156, 159 (Tex. 2020) (holding

that substantial clarification of the law warranted remand); Hamrick v. Ward,

22

interpreting a “unique statutory provision”—like the one here—as a

matter of first impression.64 I cannot join the Court’s opinion or

judgment when the Court improperly rejects the jury’s verdict and rubs

salt in the wound by rendering, rather than remanding. I would respect

the jury’s verdict and affirm the court of appeals’ judgment, but failing

that, I would give Milburn a fair chance at securing recompense for

Honda’s business choices. Because the Court does otherwise, I must

respectfully dissent.

John P. Devine

Justice

OPINION FILED: June 28, 2024

446 S.W.3d 377, 385 (Tex. 2014) (observing remand is “particularly

appropriate” when the losing party may have presented their case differently).

64 See 20801, Inc. v. Parker, 249 S.W.3d 392, 394-96, 400 & n.5 (Tex.

2008) (remanding after interpreting “for the first time today” a “unique

statutory provision” because the plaintiff “could not have reasonably

anticipated the standard we announce today”); In re Doe 2, 19 S.W.3d 278, 283

(Tex. 2000) (noting that the rule for remand “is particularly well-suited to

situations such as this one, where courts must apply the requirements of a

unique or novel statutory scheme”); ante at 23-24 (noting that the

interpretation of this statutory provision is a matter of first impression); ante

at 3 (Blacklock, J., concurring) (acknowledging the statute’s unique and

unusual nature); see also Low v. Henry, 221 S.W.3d 609, 621 (Tex. 2007)

(remanding in the interest of justice to allow parties to present evidence

responsive to newly expressed guidelines for imposing sanctions under

Chapter 10 of the Civil Practice and Remedies Code); Transp. Ins. Co. v. Moriel,

879 S.W.2d 10, 26 (Tex. 1994) (remanding in the interest of justice because the

trial was conducted at a time when no opinion from this Court had specifically

addressed the standards governing the imposition of punitive damages in

bad-faith lawsuits and because the decision represented a “substantial

clarification” of the standard).

23