* Of the Northern District of California, sitting by

designation.

United States Court of Appeals

For the First Circuit

____________________

Nos. 01-1693, 01-1694

MINERVA QUINTANA-RUIZ, ON HER OWN BEHALF AND IN REPRESENTATION OF

HER MINOR DAUGHTER, INES M. REYES-QUINTANA, 

Plaintiff, Appellee, Cross-Appellant,

v.

HYUNDAI MOTOR CORPORATION,

Defendant, Appellant, Cross-Appellee.

____________________

APPEALS FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF PUERTO RICO

[Hon. Héctor M. Laffitte, U.S. District Judge]

____________________

Before

Selya and Lynch, Circuit Judges,

and Schwarzer,* Senior District Judge.

____________________

Leslie G. Landau with whom McCutchen, Doyle, Brown & Enersen,

LLP, Lee G. Sullivan, Gibson, McAskill & Crosby, LLP, Brian P.

Crosby, Graffam & Biaggi, and Keith A. Graffam were on the brief

for Hyundai Motor Corporation.

Francisco Rebollo-Casalduc with whom Andrés Guillemard-Noble,

Giselle Colón, and Nachman, Guillemard & Rebollo were on the brief

for Minerva Quintana-Ruiz.

____________________

August 27, 2002

____________________
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LYNCH, Circuit Judge. This product design case tests

some of the limits of the minority rule, adopted by Puerto Rico and

California, that the defendant bears the burden of proving that the

utility of a product's design outweighs the risks. Aponte Rivera

v. Sears Roebuck de P.R., Inc., 144 P.R. Dec. 830, 840 n.9, 1998

P.R.-Eng. 324486 n.9 (1998); Barker v. Lull Eng'r Co., 573 P.2d 443

(Cal. 1978). The question here is whether a jury may find for a

plaintiff, injured when her airbag properly deployed in an auto

accident, when the evidence is that the overall utility of the

design exceeds the overall risk, there is no evidence of the

existence of an alternative safer design, and the jury verdict is

based either on a misunderstanding of the law or solely on the

jury's rejection of the testimony of the experts retained by the

defendant. We hold that such a jury verdict is not sustainable.

It effectively, in these circumstances, either converts the

defendant to the status of an insurer or creates liability based on

a consumer expectation theory. Since neither of these outcomes is

permissible under Puerto Rican law, we reverse and direct entry of

judgment for defendant.

I. FACTS

Early in the morning of August 10, 1996, Ines ReyesQuintana, then fifteen years old, was returning from a party in a

1996 Hyundai Accent. Reyes-Quintana's brother was driving the car

and Reyes-Quintana was in the front passenger's seat. The Hyundai

was in the left lane of a two-lane road. A Nissan station wagon,

traveling at a substantially slower speed, crossed from the right
1 The parties contest whether Reyes-Quintana was wearing

her seatbelt at the time of the crash. Reyes-Quintana maintains

that she was, and that this was a factual question for the jury,

which she says the jury must have found in her favor because they

found that she was not comparatively negligent. The judge

specifically instructed the jury that if it found that she was not

wearing her seat belt and that contributed to her injuries, the

jury should determine what percentage of the damages was

attributable to the failure to wear the seat belt. Because the

defendant's experts did not include any conclusions about whether

Reyes-Quintana was wearing her seatbelt at the time of the crash in

their reports, the judge forbade them from offering an opinion on

this point at trial.

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lane into the left lane, in front of the Hyundai. The Hyundai

braked, leaving about 163 feet worth of skid marks on the road. 

The Hyundai then rear-ended the Nissan at a speed differential of

about 30 miles per hour. The passenger-side airbag deployed,

striking Reyes-Quintana's hand, which she had raised as if to brace

herself. 

The force of the airbag striking her arm fractured ReyesQuintana's arm and wrist in four places. These were the only

injuries Reyes-Quintana sustained in the accident.1 The fractures

required three surgeries, including the permanent attachment of two

metal plates and sixteen metal screws. Reyes-Quintana has also

experienced some permanent loss of strength and scarring in that

arm. The Hyundai sustained significant damage, estimated at over

$11,300.

II. TRIAL PROCEEDINGS

Only two experts testified on the airbag's design. Both

experts were retained by the defendant, Hyundai. The plaintiff
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also offered the testimony of a medical expert to establish ReyesQuintana's injuries.

A. Testimony of Dr. Martinez

Dr. Jose Martinez, formerly of Texas A & M University,

testified as an accident reconstruction expert, providing the

probable explanation of how the accident took place. He testified

that the police reports showed 163 feet of braking marks before

impact. Based on the damage sustained by the Hyundai, Dr. Martinez

concluded that it was traveling thirty miles per hour faster than

the Nissan at the point of impact. Based on this conclusion and

the length of the skid marks, Dr. Martinez opined that the Hyundai

had to be traveling at least 63 miles per hour before the driver

began to brake. 

Dr. Martinez explained the mechanics of accident

reconstruction, a short summary of which is necessary in order to

understand the issues in this case. Barrier equivalent velocity,

referred to as BEV, is the speed at which a vehicle goes into a

barrier, measured in miles per hour. BEV is used for setting the

deployment level for airbags, and it is the measurement used in the

relevant federal regulations. Delta V, a related but not identical

concept, is the change in velocity of a vehicle, usually at the

center of gravity, also measured in miles per hour. Generally,

accident reconstruction experts measure the Delta V of the car

environment, rather than that of a specific occupant. In accidents

involving impact into a barrier, the BEV is often slightly less

than the Delta V. 
-5-

The higher the Delta V is, the more serious the injuries

are likely to be. Conversely, the lower the Delta V, the less

serious the injuries are likely to be. The majority of accidents

occur in the 10 to 15 Delta V range. Generally, accidents with a

Delta V under 15 are considered to be of lower severity. Middle

severity accidents are in the 15 to 25 Delta V range; above 25 is

considered high severity. Dr. Martinez testified that a BEV of 15

"is where you start to get serious injuries, according to the

statistics" and that is "where you want that air bag to go off."

He also testified that even an accident referred to as "low

severity" is not mild because, if you are unrestrained, such an

accident can "put your head in the windshield" and cause serious

injuries. Although he could not provide the specific percentiles

of how many people would get hurt in an accident with a BEV under

14, he stated that "people do get hurt and will get hurt" in those

types of accidents. Dr. Martinez testified that an accident with

a BEV of 12 would cause an unbelted test dummy to go through the

windshield. Based on his reconstruction of the plaintiff’s

accident, Dr. Martinez estimated the BEV of the accident at "14 to

16, or maybe thirteen and change" and the Delta V at "15 to 16,

could be 15 to 17." 

The airbag in this Hyundai model is designed to always

deploy in accidents with a BEV of 12 or greater, and so the

deployment of the airbag was in keeping with its intended design.

Dr. Martinez testified that, in any American car with an airbag,
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the airbag would have deployed in an accident of the type at issue

here. Nothing in the cross-examination impeached any of these

conclusions. The plaintiff's counsel attempted to make Dr.

Martinez concede that Hyundai could have chosen an airbag design

that would deploy at a higher BEV; Dr. Martinez responded that he

did not know whether it was possible to create a design that would

only deploy at a BEV of over 14 and still meet the federal

performance standards.

The plaintiff's counsel also attempted to get Dr.

Martinez to concede that he knew of studies indicating that airbag

deployment at a BEV of less than 15 causes more injuries than it

prevents; Dr. Martinez responded that he had no knowledge of such

studies. No such studies were introduced. Dr. Martinez's overall

conclusion was that, even at accidents with a BEV of 14 and less,

the airbag "does more good than harm."

B. Testimony of Dr. Benedict

Dr. James Benedict, an expert in the response of the

human body to acceleration and impact forces, such as in accidents,

also testified. Specifically, he is an expert in biomechanical

analysis, occupant kinematics, injury causation, and airbag

performance. Although the defense retained Dr. Benedict, the

plaintiff called him as a witness and presented his testimony. He

testified that Reyes-Quintana's arm injuries were consistent with

impact with the deploying passenger airbag. He estimated that her

forearm was one to three inches from the dashboard at the time of

the injury, based on the fact that forearm fractures rarely occur
-7-

when the arm is three or more inches away from the airbag. He also

testified that even if the airbag had not deployed, Reyes-Quintana

could have received the same fractures in her forearm.

According to Dr. Benedict's testimony, the airbag deploys

when sensors in the car detect a change in acceleration level; the

airbag is essentially "predictive in nature," in that it must

predict the severity of the collision based on the initial change

in acceleration. The airbag deploys in about one-fourth of the

time it takes to blink an eye. Dr. Benedict testified that he knew

of no way for an airbag to deploy more slowly and still provide the

required protection. As for the Hyundai involved in this

particular accident, Dr. Benedict testified that the airbag was

designed to deploy in every accident with a BEV of 12 or

higher(which he referred to as the "must fire" level), but because

of variances in vehicle tolerances, could deploy at a BEV of as low

as 8.9. He agreed that in any car in America in 1996, the airbag

would deploy during a crash with a BEV of 15.

Like Dr. Martinez, Dr. Benedict testified that he would

classify an accident occurring at zero to 14 or 15 Delta V as a low

severity accident; an accident occurring at 15 to 25 Delta V as a

moderate severity accident; an accident occurring at 25 to 35 Delta

V as a severe accident; and any accident over 35 Delta V as very

severe. He testified that these are "ranges," and the

categorization may vary from expert to expert.
-8-

Dr. Benedict testified that the effects of a crash with

a BEV of 15 could vary. Some occupants will emerge from such an

accident with minor or moderate injuries, referred to as "AIS-I" or

"AIS-II" injuries, in reference to the Abbreviated Injury Scale

system for categorizing the severity of injuries. Perhaps as many

as half of those involved in such crashes would walk away from the

accident with no injuries. An unbelted individual without an

airbag in the type of crash experienced by Reyes-Quintana, however,

could hit and shatter the windshield, sustaining facial bone

fractures, lacerations to the face, and perhaps neck injuries.

Death could even result. Accidents with a Delta V of 15 account

for twenty percent of all AIS-III or greater injuries. AIS-III

injuries are severe, serious or critical, including injuries such

as contusions to the lung or a penetrating injury to the skull, and

may pose a threat to life. 

Dr. Benedict acknowledged that there have been injuries

and some deaths caused by deployment of airbags. At the same time,

over six thousand lives had been saved by the presence of airbags.

He characterized this as a "trade-off." Airbags are meant to

protect the primary systems that keep people alive: the head, neck,

spine, chest, heart, and lungs. Airbag systems are most effective

in preventing these head, neck, and chest injuries, although they

may increase the risk of less severe injuries in some crashes.

As he had with Dr. Martinez, the plaintiff's counsel

attempted to get Dr. Benedict to admit that reports had concluded

that, in low severity crashes, occupants are more likely to be
2 The judge held that federal law preempted any failure to

warn claim, because the federal regulations specify what warnings

manufacturers must provide.

-9-

injured by the airbag than by the accident itself. Dr. Benedict

responded that he knew of one study concerning driver's side

airbags, but denied that he knew of any such conclusion. At no

point did any expert testify that such a conclusion would be

accurate.

The plaintiff's counsel attempted to focus Dr. Benedict's

testimony specifically on a belted passenger's risk of injuries.

On examination by the plaintiff, Dr. Benedict testified that "you

can have significant injury in Delta Vs of 15, 14, 13," even when

wearing a seat belt, although he conceded that "it's less likely

wearing a seat belt" and the "probability of the head hitting

something [when a passenger is wearing a seat belt] is low."

According to Dr. Benedict, however, federal law requires that

airbags be designed to protect unrestrained passengers as well as

restrained passengers. 

Quintana-Ruiz offered no evidence to contradict any of

the evidence described. 

C. Proceedings After Close of Evidence

After all the evidence had been introduced, Hyundai moved

for judgment as a matter of law. The district court granted the

motion on the plaintiff's failure to warn claim,2 but denied it on

the plaintiff's design defect claim.
3 There was no evidence that the BEV could have been as low

as 12. The expert testimony was that the BEV was "14 to 16, or

maybe thirteen and change." The experts classified this accident

as a "moderate" severity accident.

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In closing, the plaintiff's attorney argued that the

"only question" for the jury was "whether the damages suffered by

Ines [Reyes-Quintana] would have been less had the airbag not been

in the car or not deployed in the car." He argued that the Delta

V was around 15 and the BEV was in the 12 to 14 range, classifying

the accident as a "minor collision,"3 and that there should not be

airbag deployment "at these speeds." In referring to Dr. Martinez,

the plaintiff's attorney specifically said "believe him on just

about everything." With regard to Dr. Benedict, the plaintiff's

attorney said that "he knew what the truth was. He was an honest

man."

The judge instructed the jury, in relevant part, that:

Because a manufacturer of a product is not the insurer of

all the damages its product may cause, you must weigh the

evidence according to the following legal theories:

Under the doctrine of product liability, a plaintiff may

bring an action against a manufacturer who defectively

designed a product, or in the alternative, failed to

provide instructions or warnings.

Under the design theory, a plaintiff must

establish that, first, the product failed to perform as

safely as an ordinary consumer would expect when used in

an intended or reasonably foreseeable manner; or the

product's design is the proximate cause of the

plaintiff's injury and the defendant failed to establish,

in light of the relevant factors, that, on balance, the

benefits of the challenged design outweigh the risk of

danger inherent in such a design. . . . 

. . . If you find that the benefits surpass the risks,

then the defendants are not liable under this theory. 
-11-

On the other hand, if you find that the benefits

do not surpass the risks, then you find for the

plaintiffs.

After deliberations, the jury found for the plaintiff,

and also found that the plaintiff bore no share of the comparative

fault. The jury awarded $400,000 to Ines Reyes-Quintana (who had

sued through her mother, plaintiff Quintana-Ruiz) and $150,000 in

emotional distress damages to Reyes-Quintana's mother, plaintiff

Quintana-Ruiz.

Hyundai again moved for judgment as a matter of law or,

in the alternative, a new trial or remittitur of damages. The

trial court denied the motions for judgment as a matter of law, but

found the damages to be excessive and ordered a new trial unless

the plaintiff accepted a remittitur to $90,000 of the emotional

distress damages awarded to Quintana-Ruiz, the mother. The

district court did not order remittitur of the $400,000 award to

Reyes-Quintana. Quintana Ruiz v. Hyundai Motor Co., No. 98-1858

(D.P.R. Mar. 12, 2001). In denying the motion for judgment as a

matter of law, the district court held that there was sufficient

evidence for the jury to conclude "that the deployment of the

airbag in an accident of this type was unwarranted given the risks

posed by the high speed at which the airbag deploys" or that, given

the evidence that airbags are designed to protect the upper body

areas, "the jury may have reasonably found that the risk posed to

other parts of the body, like plaintiff's arm, were too high and

that the overall design was defective." Id., slip op. at 6. The

district court further reasoned that, even if all the experts
4 Hyundai had specifically opposed the consumer expectation

theory in its pre-verdict motion for judgment as a matter of law,

arguing that "the ordinary consumer has no knowledge or expectation

as to how an airbag could or should perform" and therefore it is

not a proper theory for a defect claim based on an airbag's design.

-12-

testified that the utility of the airbag design outweighed the

risk, "there was testimony from which the jury could have found

that defendant's experts' testimony was biased and unreliable." Id.

The judge also found that Hyundai had forfeited any claim of error

regarding the consumer expectation test by not specifically

objecting to its inclusion in the jury instructions, and that,

regardless, the fleeting reference to consumer expectations in the

jury instructions was harmless error.4 Id. at 9.

III.

On appeal, Hyundai argues that there is insufficient

evidence, as a matter of law, to support the jury verdict. We

review the district court's denial of judgment as a matter of law

de novo, reviewing the evidence in the light most favorable to the

jury verdict to determine if the verdict is supported by the

evidence. See Rodowicz v. Mass. Mut. Life Ins. Co., 279 F.3d 36,

41-42 (1st Cir. 2002). "We assume the veracity, however, of any

admissions made and stipulations entered into by the party opposing

the Rule 50 motion, see Fed. R. Civ. P. 36(b), as well as any

evidence derived from disinterested witnesses that has not been

contradicted or impeached." Alvarez-Fonseca v. Pepsi Cola of P.R.

Bottling Co., 152 F.3d 17, 23 (1st Cir. 1998). 

A. Evidence of Design Defect
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Under Puerto Rican tort law governing design defect

claims, if the plaintiff proves that "the product's design is the

proximate cause of the damage," the burden shifts to the defendant

to prove that "the benefits of the design at issue outweigh the

risk of danger inherent in such a design." Aponte Rivera v. Sears

Roebuck de P.R., Inc., 144 P.R. Dec. 830, 840 n.9, 1998 P.R.-Eng.

324486 n.9 (1998); see also Collazo-Santiago v. Toyota Motor Corp.,

149 F.3d 23, 25-26 (1st Cir. 1998); Rivera Santana v. Superior

Packaging, Inc., 132 P.R. Dec. 115, 129 & n.9, 1992 P.R.-Eng.

754830 (1992). This rule, which follows California law as

established in Barker v. Lull Eng'r Co., 573 P.2d 443 (Cal. 1978),

is a minority rule. Compare, e.g., Vineyard v. Empire Mach. Co.,

581 P.2d 1152, 1154 (Az. App. 1978) (rejecting burden shifting);

Armentrout v. FMC Corp., 842 P.2d 175, 183 (Colo. 1992) (same);

Kallio v. Ford Motor Co., 407 N.W.2d 92, 95-96 (Minn. 1987) (same);

Wilson v. Piper Aircraft Corp., 579 P.2d 1287, 1287-88 (Ore. 1978)

(same); Ray v. Bic Corp., 925 S.W.2d 527, 532-33 (Tenn. 1996)

(same), with Keogh v. W.R. Grasle, Inc., 816 P.2d 1343, 1346 (Ala.

1991) (following Barker); Ontai v. Straub Clinic & Hosp. Inc., 659

P.2d 734, 739-40 (Haw. 1983) (same). The rationale articulated for

this burden shifting is that "most of the evidentiary matters which

may be relevant to the determination of the adequacy of a product's

design under the 'risk-benefit' standard e.g., the feasibility and

cost of alternative designs . . . involve technical matters

peculiarly within the knowledge of the manufacturer." Barker, 573

P.2d at 455. The goal of the Barker rule, therefore, was to
-14-

"lighten the plaintiff's burden" in proving a design defect, id. at

456, not to radically expand the scope of products considered

defective by design. 

In this case, the defendant concedes that the plaintiff

has met her burden of establishing that the airbag was the

proximate cause of Reyes-Quintana's injuries. The question is

whether the defendant has met its burden of showing that the

benefits accruing from the airbag's design outweigh the risks.

The defect claimed in this case is that the airbag was

designed to deploy at a BEV of 14, the BEV level of the crash in

this case. Both parties agree that the airbag operated exactly as

it was intended and that the challenged design aspect was a

conscious design decision, rather than an unforeseen consequence

(for instance, a premature or unexpected deployment) of the

airbag's design. Cf. Collazo-Santiago, 149 F.3d at 25-26

(challenged design aspect involved whether airbag could have been

better designed to minimize injuries when it did deploy).

In Collazo-Santiago, another case from Puerto Rico

involving a design defect claim based on airbag-related injuries,

we noted that "[a]s identified in Barker, factors to be considered

by the jury" in evaluating whether the defendant has met its burden

of establishing that the design benefits outweighed its risks

include:

the gravity of the danger posed by the challenged design,

the likelihood that such a 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.
-15-

Id. at 25 (quoting Barker, 573 P.2d at 455). The Puerto Rico

Supreme Court has also quoted this language approvingly. Rivera

Santana, 1992 P.R.-Eng. 754830 n.9.

1. Risk Utility Balancing

There is little guidance from the Puerto Rico Supreme

Court on how the risk-utility test should be applied. The case

that first adopted the rule, Rivera Santana, 1992 P.R.-Eng 754830,

was resolved on another ground -- the manufacturer's failure to

warn of the inherently dangerous nature of the product. A

subsequent case reiterating the risk-utility rule, Aponte Rivera,

1998 P.R.-Eng. 324486, was also resolved on a failure to warn

theory.

The plaintiff's attorney argued in his closing that the

question was "whether the damages suffered by Ines [Reyes-Quintana]

would have been less had the air bag not been in the car or not

deployed in the car." That, however, is not the correct question

in a design defect case. The question posed by the plaintiff's

attorney unfairly stacks the deck in the risk-utility equation --

when the question is based on the plaintiff's particular

circumstances, the "risk" of injury is 100%, as the plaintiff in

question has by definition been injured, and therefore the risk

will almost always outweigh the utility for that particular

plaintiff in that particular instance. Similarly, the trial

court's conclusion that, given the evidence that airbags are

designed to protect the upper body areas, "the jury may have

reasonably found that the risk posed to other parts of the body,
5 Reyes-Quintana herself admitted that, until just prior to

the accident, she was not wearing her seatbelt. Had the accident

occurred at an earlier point in the evening, when she was not

belted, she would have benefitted tremendously from the airbag

deployment.

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like plaintiff's arm, were too high and that the overall design was

defective," Quintana Ruiz, slip op. at 6, misstates the test. The

issue is not whether the design posed too great a risk to the

passenger's arm, or any one specific body part.

Instead, the question for the jury was whether,

generally, the benefits imposed by the airbag's challenged design

aspect (here, the fact that the passenger side airbag deploys in

accidents with a BEV in the range of 14 to 16) outweigh its risks.

In this inquiry, the jury should have considered the risk and

utility to unbelted passengers, as well as the risk to belted

passengers. The evidence was that unbelted passengers receive a

considerable utility from airbags in such accidents, as, absent the

airbag, there is a substantial risk of severe facial, head and

spinal injuries.5

There was much evidence presented at trial on the risks

posed by, and the utility created by, airbag deployment at a BEV of

14. The uncontradicted evidence was that the benefits outweighed

the risks. No expert testified that the risk of harm posed to

passengers by airbags in accidents with a BEV of 14 exceeded the

benefits of airbags deploying in those types of crashes. In fact,

both Dr. Martinez and Dr. Benedict testified that they knew of no

studies coming to such a conclusion. Dr. Martinez specifically
-17-

testified that, at accidents with a BEV of 14 and under, the airbag

"does more good than harm." The evidence was that airbags are

designed to prevent the most serious types of injuries and

therefore to preserve lives, although the cost of preserving these

lives may be an increased risk of injuries of a less serious

variety in some crashes.

The plaintiff's argument that these serious injuries do

not occur in the type of accident she had was not supported by the

evidence. The evidence was that 20% of all AIS-III injuries occur

at a Delta V of 15 or below -- therefore, a significant percentage

of serious injuries are the result of these "moderate" severity

accidents. Reyes-Quintana had the benefit of the protection

against these types of injuries afforded by the airbag. She did

not suffer any head, face or brain injuries, precisely the types of

injuries an airbag protects against in an accident with a Delta V

of 15.

Much of the plaintiff’s examination of Dr. Benedict

concerned whether the airbag would deploy at a BEV of 8.9, and with

the fact that Hyundai does not warn consumers that airbags may

cause serious bodily injury. Neither of those topics was material

to the risk-utility questions before the jury. It was undisputed

that the BEV (and Delta V) were well above 8.9 (and therefore a

design choice to make the airbag deploy at a BEV of 8.9 could not

be a proximate cause of the plaintiff's injuries). And, because

the matter of labels is so extensively regulated by federal law,

there was no viable claim for failure to warn.
6 The trial court's instructions to the jury did not

include instructions on alternative design. Neither party objected

to this omission.

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Many products, like airbags, involve a "trade off"

between the benefits offered to the consumer and the risk created

by the product. The risk-utility balancing test is designed to

avoid converting the manufacturer into the insurer of every harm

that arises out of a product from which the consumer derives

utility. The Puerto Rico Supreme Court has emphasized that "[t]he

manufacturer . . . is not the insurer of every damage his products

may cause." Aponte Rivera, 1998 P.R.-Eng. 324486; accord Rivera

Santana, 1992 P.R.-Eng. 754830 (same language) (quoting Mendoza v.

Cerveceria Corona, Inc., 977 P.R.R. 487, 499 (1969)); see also

Barker, 573 P.2d at 456 (noting that this test "stop[s] short of

making the manufacturer an insurer for all injuries which may

result from the use of its product"). The plaintiff is entitled to

compensation only if the challenged design aspect does more harm

than good, overall, for the consumer.

2. Alternative Design

An important part of the risk-utility test is the

question of whether there is a mechanically feasible safer

alternative design.6 See Barker, 573 P.2d at 455; Rivera Santana,

1992 P.R.-Eng. 75830 n.9. 

There are at least three views of how the existence, or

non-existence, of a mechanically feasible alternative design fits

into the risk-utility balancing test: 1) a showing of an

alternative design is the sine qua non of a design defect claim,
7 This approach has been criticized as limiting market

choice -- a fully-informed consumer may wish to have the option of

a design that has a slightly higher risk level than another design,

but has the advantage in other areas, such as aesthetics. See

Henderson & Twerski, supra, at 886.

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meaning that a plaintiff cannot prevail even if the risk exceeds

the utility unless there is a showing of alternative design, see J.

Henderson Jr. & A. Twerski, Achieving Consensus on Defective

Product Design, 83 Cornell L. Rev. 867, 883-84 (1998); 2) the

plaintiff cannot prevail if there is no showing of a feasible

alternative design, unless the risk so far outweighs the utility

that no reasonable person would market the product, see id.;

Restatement (Third) of Torts: Product Liability, § 2 cmt. b (1998)

("[P]roduct sellers may be subject to liability even absent a

reasonable alternative design when the product design is manifestly

unreasonable."); and 3) it is not necessary to show the existence

of an alternative design if the risk outweighs the utility, but if

the actual utility exceeds the actual risk, then the plaintiff may

still prevail if there is a showing of a feasible alternate design

that would achieve the same utility with a lesser degree of risk,7

see Prosser & Keeton on Torts, § 99 at 699 (W. Keeton et al. eds.,

5th ed. 1984). It is not clear what view the Puerto Rico courts

would follow, but none of the three approaches assists the

plaintiff. As discussed above, the evidence shows that the actual

utility of an airbag deploying at a BEV of 14 outweighs the actual

risk posed by such an airbag. Therefore, even under the third

view of alternate design (the most plaintiff-friendly view),
8 The Puerto Rico courts have not resolved the issue of

whether the alternative design must be feasible at the time of the

product's design and manufacture, or at the time of the product's

sale. The Restatement (Third) and Prosser and Keeton on Torts, as

cited above, take divergent approaches. There are competing policy

interests -- on the one hand is the possibility that a manufacturer

may continue to sell an outmoded design long after a safer

alternative becomes feasible, while on the other hand is the

absolutely inevitable lag time between when a product is designed

and when it is sold and the fact that technology may develop during

that lag time. There is no need to resolve this question here, as

it makes no difference for the plaintiff's case. There was no

showing of any feasible safer alternative design at the time of the

airbag's design or at the time the car was sold. 

9 Prosser and Keeton on Torts also says that:

An alternative design that was not utilized is to be

considered as feasible when a reasonable person would conclude

that the (1) magnitude of the danger-in-fact that could have

been avoided by such alternative design in the (2) utilization

of the scientific technological know-how reasonably available

to the defendant outweighed the (1) financial cost of guarding

against such avoidable danger, (2) the impairment of the

benefits, and (3) any new danger-in-fact that would have been

created by the alternative design.

Prosser and Keeton on Torts, supra, § 99, at 700.

-20-

Quintana-Ruiz cannot prevail unless there is a feasible alternative

design.

Even taking this third view, it is well-established that

the inquiry into the "mechanical feasibility" of an alternative

design must be determined based on the universe of existing

technology at the time of manufacture and design (or possibly the

time of sale),8 not some future development leading to a

potentially feasible possibility. See Prosser & Keeton on Torts,

supra, § 99, at 701 ("The courts have almost universally held that

the feasibility of designing a safer product must be determined as

of the time the product was designed.");

9 Restatement (Third) of
-21-

Torts: Product Liability, supra, § 2 cmt. f ("[Q]ualified expert

testimony on the issue suffices, even though the expert has

produced no prototype, if it reasonably supports the conclusion

that a reasonable alternative design could have been practically

adopted at the time of sale."). 

California courts as well have accepted the principle

that feasibility is determined in light of the technology extant at

the relevant time. See Brown v. Superior Court, 751 P.2d 470, 478

(Cal. 1988) ("Barker contemplates a safer alternative design is

possible . . . ."); cf. Buccery v. Gen. Motors Corp., 60 Cal. App.

3d 533, 547 (1976) ("[A]ny product so designed that it causes

injury when used or misused in a foreseeable fashion is defective

if 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."). In Aguayo v. Crompton & Knowles Corp., 183 Cal. App.

3d 1032 (1986), the plaintiff attempted to introduce evidence that

the defendant's successor had instituted a safer alternative design

in subsequent versions of the product. The appeals court upheld

the district court's ruling excluding the evidence. Noting that

while "[p]laintiff's experts had described how this alternate

safety system would operate using technology available at the time

of manufacture [of the original machine]" which "does have a

tendency to show it is feasible," the plaintiff's "offer of proof

omitted facts that would show that the knowledge and technology
10 In some instances, the plaintiff may bear some degree of

burden -- whether of production or of proof -- with regard to the

subsidiary issue of alternative design. For instance, it is

conceivable that once the defendant proves that the design's actual

utility exceeds actual risk, the burden may shift back to the

plaintiff to prove that an alternative design exists that would

make liability possible. Or alternatively, the plaintiff may bear

a burden of production with regard to an alternative design,

thereby giving the defendant something to prove or disprove. For

purposes of this case, it is not necessary for us to clarify these

gray areas. 

-22-

used to manufacture and design the [original] machine was the same

used to produce the [proffered] machine." Id. at 1038-39.

In light of this, the Barker burden-shifting rule

potentially puts defendants in an impossible situation with regard

to alternative designs -- that of trying to prove a negative (that

there is no alternative design that was feasible at the relevant

time that would not cause greater risk). Barker itself, and the

Puerto Rico cases adopting it, say only that the burden lies with

the defendant of proving that the overall utility exceeds the

overall risk, not that the burden is on the defendant to prove the

impossible.10 The courts of Puerto Rico will ultimately have to

sort through the precise role played by evidence of alternative

design.

In this case, no expert presented any evidence that there

was any alternative design that would have posed less of a risk to

passengers while still providing the same level of protection. In

fact, the expert testimony was just the opposite. The only

alternative design suggested by the plaintiff was an airbag with a

higher deployment level (presumably a deployment level at a BEV

greater than 16, given that the expert testimony placed the BEV of
-23-

this accident at between 14 and 16). The expert testimony

effectively refuted this as a feasible alternative that would

decrease overall risk to passengers. "[F]easibility [is] not the

sole issue, for another relevant consideration [is] whether an

alternative design of the car, while averting the particular [harm

here], would have created a greater risk of injury in other . . .

situations." Barker, 573 P.2d at 456. Expert testimony

established that a deployment trigger above a BEV of 12 would leave

many individuals unprotected from serious injuries of AIS-III and

higher. 

Further, Dr. Benedict testified that airbags cannot be

designed to trigger at one specific BEV level. Rather, because of

variations in cars, any one design will result in a range of

deployment levels. If a designer wants an airbag to definitely

deploy at a BEV of 12 (what Dr. Benedict referred to as a "must

fire" level), the airbag will sometimes deploy at as low as a BEV

of 8.9. The plaintiff's suggestion in closing arguments that

Hyundai should have designed a bag that would deploy at a BEV of 16

and above, but never at a BEV of 14 or 15, is inconsistent with the

evidence presented at trial on mechanical feasibility.

In addition, federal regulations governing the design of

airbags must factor into the jury's consideration of whether there

is any feasible alternative design. The National Highway Traffic

Safety Administration has mandated that airbags be designed to

protect unbelted occupants, as well as belted occupants. 49 C.F.R.

§ 571.208, S5.1 (2001). This evidence was before the jury.
-24-

Although, "states may impose liability under their products

liability statutes even if the manufacturer or seller meets the

minimum federal standards," Rivera-Santana, 1992 P.R.-Eng. 754830,

an alternative design cannot be considered feasible if it would

require the manufacturer to run afoul of federal standards. In

fact, a state law claim that attempts to impose requirements that

conflict with the federal standards would most likely be preempted

by federal law. See Geier v. Am. Honda Motor Co., 529 U.S. 861,

871 (2000); Wood v. Gen. Motors Co., 865 F.2d 395, 408-10 (1st Cir.

1988). 

On our review of the evidence, no rational jury could

have concluded on these facts that the risks of the airbag design

outweighed the benefits.

B. Expert Testimony

The district court alternatively upheld the jury verdict

on the basis that the defendant bore the burden of proof and that

the jury was free to reject the defendant's experts' testimony as

biased. The only "bias" was that Hyundai paid the experts'

consulting fees (including compensation for time spent testifying),

and that both experts primarily, although not exclusively, work for

the defense side in such cases.

Under the burden-shifting rule as stated by Puerto Rico

(albeit without consideration of the factors discussed here), a

plaintiff need not present any evidence regarding the risk or

utility of the product, or even regarding the design of the

product. Aponte Rivera, 1998 P.R.-Eng. 324486 n.9; Rivera Santana
-25-

v. Superior Packaging, Inc., 1992 P.R.-Eng. 754830. From this, the

plaintiff argues that when a plaintiff does not present her own

expert testimony and convinces the jury to disregard the defense

experts' testimony, a plaintiff can prevail on her design defect

claim simply by showing that the product caused her injury.

The district court thought its alternative ground was

compelled by Collazo-Santiago, 149 F.3d 23. See Quintana Ruiz,

slip op. at 6 & n.17. For the reasons outlined below, we disagree.

Collazo-Santiago was also an airbag design defect case

under the Puerto Rico burden-shifting rule, in which this court

upheld a jury verdict for the plaintiff where the jury, in a

particular context, rejected the defense expert's testimony. The

plaintiff has argued that Collazo-Santiago established a flat rule

that a jury may reject the testimony of an expert witness on a

subject requiring expert testimony solely on the basis of the

jury's conclusion that the expert is biased in a case where the

defendant, as a matter of law, bears the burden of proof on the

issue. We describe the law in this area and apply it in the

context of the case where the burden of proof is put on the party

whose expert's testimony is rejected.

The question on appeal is whether there was sufficient

evidence to justify the jury's rejection of the expert's testimony

on grounds of bias. A jury is not "at liberty, under the guise of

passing upon the credibility of a witness, to disregard his

testimony, when from no reasonable point of view is it open to

doubt." Chesapeake & O. Ry. Co. v. Martin, 283 U.S. 209, 216
-26-

(1931); see also Sonnentheil v. Christian Moerlein Brewing Co., 172

U.S. 401, 408 (1899); Chicago, Rock Island & Pac. Ry. Co. v.

Howell, 401 F.2d 752, 754 (10th Cir. 1968) ("The fundamental rule

which makes the jury the sole judge of the weight and credibility

of testimony is subject to the caveat that testimony concerning a

simple fact, capable of contradiction, not incredible, and standing

uncontradicted, unimpeached, or in no way discredited by crossexamination, must be permitted to stand."). See generally C.

Wright & A. Miller, 9A Federal Practice and Procedure § 2527, at

286 (1995).

In Chesapeake & O. Ry. Co., the Supreme Court reversed a

jury verdict based on the jury's rejection of a witness's testimony

where

A reading of [the testimony] discloses no lack of candor

on [the witness's] part. It was not shaken by crossexamination . . . . Its accuracy was not controverted by

proof or circumstances, directly or inferentially; and it

is difficult to see why, if inaccurate, it readily could

not have been shown to be so. The witness was not

impeached; and there is nothing in the record which

reflects unfavorably upon his credibility.

283 U.S. at 216. The only possible basis for questioning the

witness's credibility in Chesapeake & O. Ry. was that he was an

employee of the defendant. This, the Court held, was not

sufficient evidence to support a jury verdict based solely on the

rejection of his testimony. Id.

This rule accords with the standard for reviewing grants

or denials of judgments as a matter of law, where generally we

accept as true "any evidence derived from disinterested witnesses

that has not been contradicted or impeached," Alvarez-Fonseca, 152
11 Wright and Miller characterize the Second Circuit as

disagreeing with the rule that juries may not reject uncontradicted

and unimpeached evidence from disinterested witnesses. Wright &

Miller, supra, at 286. The Second Circuit has expressed the view

that juries should be able to reject even uncontradicted evidence

because "the liar's story may seem uncontradicted to one who merely

reads it, but it may be 'contradicted' in the trial court by his

manner, his intonations, [and] his grimaces." Broad. Music, Inc.

v. Havana Madrid Rest. Corp., 175 F.2d 77, 80 (2d Cir. 1949); see

also Purcell v. Waterman S.S. Corp., 221 F.2d 953, 954 (2d Cir.

1955) (per curiam) (noting that "there is no rule that the

testimony of witnesses must be accepted if they are not

contradicted and if their credibility is not impeached" because the

witness's testimony may be "of no probative weight at all because

of his address, his bearing and his apparent lack of

intelligence."). Even were we to view this case through that lens,

these concerns are directed at cases where credibility is at issue,

which is not the case here. There was no evidence, direct or

circumstantial, to suggest that the witnesses' credibility was in

doubt, and the plaintiff's counsel vouched for the credibility of

the experts.

-27-

F.3d at 23. Cf. Kasper v. St. Mary of Nazareth Hosp., 135 F.3d

1170, 1173 (7th Cir. 1998) ("When a case turns on credibility,

neither side is entitled to judgment as a matter of law unless

objective evidence shows that it would be unreasonable to believe

a critical witness for one side.").

Generally, a jury may not reject testimony that is

uncontradicted and unimpeached (directly, circumstantially, or

inferentially) unless credibility is at issue,11 as "[c]redibility

determinations are uniquely within the jury's province." United

States v. Calderon, 77 F.3d 6, 10 (1st Cir. 1996). Juries, for

instance, may reject uncontradicted, unimpeached testimony when it

is improbable, inherently contradictory, riddled with omissions, or

delivered in a manner giving rise to doubts. See Quock Ting v.

United States, 140 U.S. 417, 420-21 (1891). There must otherwise
-28-

be some affirmative evidence in the record to put the witness's

credibility in doubt. See Wright & Miller, supra, at 288.

The Supreme Court's seminal opinion in Sonnentheil v.

Christian Moerlein Brewing Co., 172 U.S. 401 (1899), is helpful in

sketching the contours of this rule. Sonnentheil is usually quoted

as holding that "the mere fact that the witness is interested in

the result of the suit is deemed sufficient to require the

credibility of his testimony to be submitted to the jury as a

question of fact." Id. at 408. This rule must be understood in

context. The central issue in Sonnentheil was whether creditors

were guilty, or aware, of fraud in the making of a deed. Id. at

409. The uncontradicted testimony at issue was provided by the

creditors themselves, who quite obviously had a personal interest

in the outcome of the case. The Court observed that fraud cases

are uniquely within the province of the jury's credibility

determinations, as "[p]arties contemplating a fraud frequently

pursue . . . devious courses to conceal their designs." Id. at

410. Finally, the Court noted that there was much circumstantial

evidence that "there [was] a strong probability" that the creditors

were aware of the fraud. Id. at 413. As a result, the Court,

while noting that "the jury had no right to arbitrarily disregard

the positive testimony of unimpeached and uncontradicted

witnesses," held that "[u]nder the peculiar circumstances of this

case, it was not error to submit [the question of fraud] to the

jury." Id. at 408, 414.
-29-

In this case, there is no such evidence as would support

a jury's rejection of the experts' testimony. The experts,

although paid by the defendants on an hourly basis, had no

financial or personal interest in the outcome of the case. Nor is

there a claim of fraud on the part of the expert witnesses. The

only "bias" is in their retention by the defense. In Chesapeake

& O. Ry., the Supreme Court held that the fact that the witness was

an employee of the defendant was not a sufficient basis for the

jury to reject his testimony. 283 U.S. at 216. Here, the

witnesses were paid outside experts, a much weaker basis on which

to find their testimony lacked credibility. There was no evidence,

circumstantial or direct, tending to show that they were not

credible witnesses. The testimony was not improbable,

inconsistent, or otherwise facially unbelievable. In short, there

is nothing in the record to support the jury's rejection of the

experts' testimony.

The general rule that a jury verdict cannot be based

solely on the jury's rejection of the other side's uncontradicted

testimony applies with particular force to expert testimony on

matters outside of lay competence. While juries may decide what

weight to give to the testimony of expert witnesses, they are not

"at liberty to disregard arbitrarily the unequivocal,

uncontradicted and unimpeached testimony of an expert witness

where . . . the testimony bears on technical questions . . . beyond

the competence of lay determination." Webster v. Offshore Food

Serv., Inc., 434 F.2d 1191, 1193 (5th Cir. 1970) (internal citation
12 The district court erroneously instructed the jury on the

consumer expectation theory. But Hyundai failed to object after

the instruction was given and therefore failed to preserve its

objection. See Gray v. Genlyte Group, Inc., 289 F.3d 128, 133-34

(1st Cir. 2002). Accordingly, our reversal of the jury verdict is

not based on this ground.

-30-

omitted); see also Bearman v. Prudential Ins. Co., 186 F.2d 662,

665 (10th Cir. 1951) (same). There is no doubt the subject matter

here required expert testimony.

The idea that the jury could base a verdict simply on

rejection of expert testimony here is also inconsistent with the

rule that consumer expectations cannot be the basis of liability in

a case involving complex technical matters. A jury in such a case

must rely on expert testimony and cannot substitute its own

experience. 

A consumer expectations theory was not available to the

plaintiff here.12 "Barker . . . made clear that when the ultimate

issue of design defect calls for a careful assessment of

feasibility, practicality, risk and benefit, the case should not be

resolved simply on the basis of ordinary consumer expectations."

Soule v. Gen. Motors Corp., 882 P.2d 298, 305 (Cal. 1994) (holding

that the consumer expectations test was not appropriate for a claim

that a car was defective because the wheel assembly detached in

accident). The California Supreme Court has held that "the

consumer expectations test is reserved for cases in which the

everyday experience of the product's users permit a conclusion that

the product's designs violated minimum safety assumptions." Id. at

308. The court specifically observed that "the ordinary consumer
13 Another California appellate court, however, has held

that a consumer expectations theory was available in a design

defect case challenging the relative placement of the airbag and

the windshield. See Bresnahan v. Chrysler Corp., 32 Cal. App. 4th

1559 (1995). In general, the question of whether a consumer

expectation theory is available depends not on the challenged

product itself, but on the complexity of the alleged defect;

"[f]or example, the ordinary consumers of modern automobiles may

and do expect that such vehicles will be designed so as not to

explode while idling at stoplights, experience sudden steering or

brake failure as they leave the dealership, or roll over and catch

fire in two-mile-per-hour collisions." Soule, 882 P.2d at 308 n.3.

-31-

of an automobile simply has 'no idea' how it should perform in all

foreseeable situations, or how safe it should be made against all

foreseeable hazards." Id. In one airbag design defect suit, a

California appellate court held that:

The deployment of an air bag is, quite fortunately, not

part of the "everyday experience" of the consuming

public. Minimum safety standards for air bags are not

within the common knowledge of lay jurors. Jurors are in

need of expert testimony to evaluate the risks and

benefits of the challenged design. . . . [I]n designing

air bags there are tradeoffs involving complex technical

issues.

Pruitt v. Gen. Motors Corp., 72 Cal. App. 4th 1480, 1483-84 (Cal.

App. 1999).13

The Collazo-Santiago court found that "the plaintiff

adduced sufficient evidence for the jury to find that the

defendant's expert was an interested witness." 149 F.3d at 28.

Thus, the decision rested not on an absolute rule but, rather, on

an assessment of the weight of the relevant evidence. CollazoSantiago presents a litany of facts casting doubt on the

defendant's expert's credibility. Collazo-Santiago differed from

this case in several ways. The plaintiff in Collazo-Santiago
14 We do not suggest that these facts conclusively establish

bias.

-32-

marshaled extraordinary evidence of expert bias. The expert not

only was being paid by the defendant, but had previously been

employed by the defendant as a design engineer. At the time of

trial, the expert was earning the vast majority of his income by

testifying for that particular defendant or its affiliates and had,

in fact, testified for them thirty-six times in the two year period

preceding the trial. Id. at 27-28.14 

In contrast to Collazo-Santiago, this is not a case where

the veracity or the reliability of the expert testimony was in

doubt or the expert testimony did not cover a material point. In

fact, the plaintiff emphasized the veracity and reliability of the

experts. The plaintiff called Dr. Benedict as her own witness.

In referring to Dr. Martinez, the plaintiff's attorney specifically

said, "believe him on just about everything." With regard to Dr.

Benedict, the plaintiff's attorney said that "he knew what the

truth was. He was an honest man." The fact that the defendant

paid the experts' fees cannot alone establish bias to overcome

plausible and uncontradicted evidence that the design benefits

outweighed any risks. That is particularly so where the non-paying

party encourages the jury to accept both experts as credible. The

defendant proffered reliable expert testimony that indicated that

the utility of the design outweighed the risk, and the jury could

not simply disregard such testimony. 
-33-

IV. CONCLUSION

The verdict is vacated and the case remanded with

instructions that judgment be entered for the defendant. No costs

are awarded.