* Of the Northern District of California, sittin g b y

designation



### . 

# Unite d States Court of Appeals For the First C ircuit

____________________ 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 , G raffa m & Biaggi , and Keith A. Graffamwere 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

____________________-2- 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 plain tif f, 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 basedeither 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, eit her 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 andReyes-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 right1 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 fo und t hat 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 damag es w as attributable to the failure to wear the seat belt. Because th e 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. -3- 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 airba g 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 wer e the onl y injuries Reyes-Quintana sustained in the accident. 1 The fractures requiredthree surgeries, including the permanent attachment of two

me tal plates and sixteen metal screws. Reyes-Quintana has al s o experiencedsome p ermane nt 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

e xpe rts were retained by the defendant, Hyundai. The plaintiff-4-

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 U niversity, te stified 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 hadto 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,

r efe rredto 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 vehic le, usuall y 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 consideredhigh 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 testi fie d 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 throu gh the windshield. Based on his reconstruction of the plaintiff’s accident, Dr. Martinez estimated the BEVof the accident at "14 to 16, or maybe thirteen and ch ang e" and the Delta V at "15 to 16, could be 15 to 17."

The airbag in this Hyundai model is de signed 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,-6-

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 t hat Hy undai could have chosen an airbag design that would deploy at a higher BEV; Dr. Martinez responded that he didnot 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 att emp ted 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. Specif ica lly, he is an expert in biomechanical analysis, occupant kinematics, injury causation, and airbag performance. Although the defense retained Dr. Benedict, the plaintiff calledhim 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 armis three or more inches away from the airbag. He also testifiedthat 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 air bag is essentially "predictive in nature," in that it mus t 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 requiredpr otection. As for the Hyundai involved in this particular accident, Dr. Benedict testified that the airbag was designedto 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 Vas a severe accident; and any accident over 35 D elta V a s 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 1 5 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 systemfor 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 unb elted individual without an airbag in the type of crash experienced by Reyes-Quintana, however, couldhit and shatter the windshield, sustaining facia l bo ne 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 andsome 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 plain tiff 's counsel attempted to get Dr. Benedict to admit that reports had concluded that, in low severity crashes, occupants are more likely to be2 The judge held that federal law preempted any failure to

warn claim, because the federal regulations specify what warnings manufacturers must provide. -9- injuredby the airbag than by the accident itself. Dr. Benedict respondedthat he knew of one study con cerning 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 r isk 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 somethin g [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-R uiz 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. -10- In closing, the plaintiff's attorney arg ued t hat 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 Vwas around 15 and the BEVwas 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 r egard 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 def ecti vely desi gned 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 forese eable 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 surpa ss the risks, then the defendants are not liable under this theory.-11- On the other hand, if you find that the benefits do not su rpa ss the risks, then you find for the plaintiffs. After deliberati ons, the jury found for the plaintiff, andalso 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. T h e trial court denied the motions for judgment as a matter of law, but foundthe damages to be excessive and ordere d a n ew trial unless the plaintiff accepted a remittitur to $90,00 0 o f the emotional distress damages awarded to Quintana-Ruiz, the mother. The district court did not order remittitur of the $400,000 award to Reyes-Quinta na. Q uintana 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 posedby 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 h igh and that the overall design was defective." Id. , slip op. at 6. The district court further reasoned that, even if all the expert s4 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- testifiedthat 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 spec ifi cally 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 insuffic ien t 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 as sume the veracity, however, of any admissions made andstipulations entered into by the party opposing the R ule 50 motion, see Fed. R. Civ. P. 36(b), as well as a n y evidence derived from disinterested witnesses that has not been contradictedor impeached." Alvarez-Fonseca v. Pepsi Cola of P.R. Bottling Co. , 152 F.3d 17, 23 (1st Cir. 1998). A. Evidence of Design Defect-13- Under Puerto R ican 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 r ule, w hich follows California law as establishedin Barker v. Lull Eng'r Co. , 573 P.2d 443 (Cal. 1978), is a minority rule. Compare, e.g. , Vineyardv. 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.2d1343, 1346 (Ala. 1991) (following Barker ); Ontai v. Straub Clinic & Hosp. Inc. , 659 P.2d734, 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.2dat 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 prox imat e 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 designedto deploy at a BEV of 1 4, 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 con sequence (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 wo uld occur, the mechanical feasibility of a safer alternative design, the financial cost of an improved design, and the adverse consequences to the prod uct 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 quote d 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 r isk-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] wouldhave been less had the air bag not bee n in the car or not deployed in the car." That, however, is not the correct question in a design d efect 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 th ere fore the risk will almost always outweigh the utility for that particular plaintiff in that particular instance. Si milarly, the trial court's conclusion that, given the e vide nce that airbags are designedto protect the upper body areas, "the jury may have reasonably found that the risk posed to othe r par ts of the body,5 Reyes-Quintana herself admitted that, until just prior to

the accident, she was not wearing her seatbelt. Had the accident occurredat a n earlier point in the evening, when she was not belted, she woul d have benefitted tremendously from the airbag deployment. -16- 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 qu esti on 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 u nbelte d 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 posedby, 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 w ith 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 su ch a conclusion. Dr. Martinez specifically-17-

testifiedthat, at accidents with a BEV of 14 and under, the airbag "does more good than harm." The evid ence was that airbags are designedto pre vent t he most serious types of injuries and therefore to preserve lives, although the cost of preserving these li ves may be an increased risk of injuries of a less seriou s 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 th e r esult of these "moderate" severity accidents. Reyes-Q uint ana 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. Mu ch of the plaintiff’s examination of Dr. Benedict concernedwhether 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 instru ctio ns to the jury did not

include instructions on alternative design. Neither party objected to this omission. -18-

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 avoidc onvert ing 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.-E ng. 32 4486; 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 Bark er , 573 P.2d at 456 (noting that this test "stop[s] short o f making the manufacturer an insurer for all i njurie s which may result from the use of its product"). The plaintiff is entitled to compensation only if th e chal lenged 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 wheth er t here 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 marke t

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 adva ntage in other areas, such as aesthetics. See Henderson & Twerski, supra , at 886. -19- 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 C onse nsus 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, unl ess th e risk so far outweighs the utility th at 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 a bsent 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 P uerto Ri co courts wouldfollow, 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 c our ts 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 citedabove, take divergent approaches. There are competing policy interests -- on the one handis 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 andwhen 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 m akes 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 des ign that was not utilized is to be consideredas feasible when a reasonable person would conclude that the (1) magnitude of the danger-in-fact that could have been avoidedby 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 lea ding t o 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]uali fied expert testimony on the issue suffices, even though the expert has producedno prototype, if it reasonably supports the conclusion that a reas onable alternative design could have been practically adopted at the time of sale.").

California courts as well h ave 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. 3d533, 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 preve ntab le 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. 3d1032 (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 dis trict court's ruling excluding the evidence. Noting that while "[p]lain ti ff'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 omittedfacts tha t would show that the knowledge and technology10 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 pr ove that an alternative design exists that would make liability possible. Or alternatively, the plaintiff may bear a burden of pr odu ction with regard to an alternative design, thereby giving the defendant s omethi ng to prove or disprove. For purposes of this case, it is not necessary for us to clarify these gray areas. -22- usedto manufacture and design the [original] machine was the same used to produce the [proffered] machine." Id. at 1038-39.

In light of this, t he 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 ov erall utility exceeds the overall risk, not that the burden is on the defendant to prove the impossible. 10 The courts of Puerto Rico wil l ultimately have to sort through the precise role play ed 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 le vel 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 anot her 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 establishedthat a deployment trigger above a BEV of 12 would leave many individuals unprotected from serious injuries of AIS-III and higher. Further, Dr. Benedict test ified that airbags cannot be designedto trigger at one specific BEV level. Rather, because of variations in cars, any one design will result in a rang e o f deployment levels. If a designer wants an airbag to definitely deploy at a BEV of 12 (w hat 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 andabove, 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 mand ated 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-

A lthough, "states may impose liability under their produ ct s liability statutes even if the manufacturer or sel ler meets the minimumfederal standards," Rivera-Santana , 1992 P.R.-Eng. 754830,

an altern ati ve 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 l aw. See Geier v. Am. Honda Motor Co. , 529 U.S. 861, 871 (2000); Woodv. 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), andthat 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 r egardi ng 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 testi mony a nd convinces the jury to disregard the defense experts' testimony, a plai ntiff can prevail on her design defect claim simply by showing that the product caused her injury.

The district court thought its alternative ground w as compelledby Collaz o-S antiago , 149 F.3d 23. See Quintana Ruiz , slip op. at 6 & n.17. For the reasons outlined below, we disagree.

Collazo-Santia go w as also an airbag design defect case under the Puerto Rico burden-shifting rule, in which th is court uphelda jury verdict for the plaint iff 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 b asis o f the jur y's conclusion that the expert is biased in a case w here th e 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 ther e wa s 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 test imony, 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 b e permitted to stand."). See generally C. Wright & A. Miller, 9A Fe deral 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 Areading 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 w itn ess was not impeached; and there is nothing in the record which reflects unfavorably upon his credibility. 283 U.S. at 216. The only possible bas is for qu estioning the witness's credibility in Chesape ake & 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, wh ere generally we accept as true "any evidence derived from disinterested witnesses that has not been contradicted or impeached," Alvarez-Fonseca , 15211 Wright and Miller characterize the Second Circuit as

disagreeing with the rule that juries may not reject uncontradicted andunimpeached evidence from disi nterested 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.2d953, 954 (2d Cir. 1955) (per curiam) (noting that "there is no rule that the testimony of witnesses must b e acce pted if they are not contradictedand if their credibility is not impeached" because the witness's testimony may be "of no probative weight at all because of his a ddress, 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.3dat 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 tes timo ny that is uncontradictedand unimpeached (directly, circumstantially, or inferentially) unless credibility is at issue, 11 as "[c]redibility determinations are u niqu ely 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 deliveredin 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 Sonnent h eil 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 intereste d i n the result of the suit is deemed sufficient to require the credibility o f his tes timony to be submitted to the jury as a question of fact." Id. at 4 08. This rule must be understood in context. The central issue in Son nentheil was whether creditors

were guilty, or aware, of fraud in t he m aking 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 o f th e 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 wit nesses. 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

a n employee of the defendant was not a sufficient bas is for th e jury to rejec t 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 o r d irect, tending to show that they were not credible witnesses . The testimony was not improbable, inconsistent, or otherwise facially unbelievable. In short, there is n othing 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 test imony 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, uncontradictedand unimpeached testimony of an expert w itne ss where . . . the testimony bears on technical questions . . . beyond the competence of lay determination." Webster v. O ffs hore Food Serv., Inc. , 434 F.2d 1191, 1193 (5th Cir. 1970) (internal citation12 The district court erroneously instructed the jury on the

consumer expectation t heory. 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 inconsist ent wi th 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

r esolvedsimply on the basis of ordinary consumer expectatio ns. " 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 expectat ions t est is reserved for cases in which the everyday experience of the product's users permit a conclusion that the product's designs violated minimumsafety assumptions." Id. at 308. The court specifically observed that "the ordinary consumer13 Another California appellate court, however, has held

that a consumer expectations theor y was available in a design defec t case challenging the relative placement of the airbag a n d 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 , b ut on the complexity of the alleged defect; "[f]or example, the ordinary consumers of modern a utom obiles may anddo 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 foreseeab le 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 c onsuming public. Minimum safety standards for air bags are not within the common knowledge of lay jurors. Jurors are in needof 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 ad duc edsufficient 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 plainti ff in Collazo-Santiago14 We do not suggest that these facts conclusively establish

bias. -32- marshaledextraordin ary ev idence of expert bias. The expert not only was being paid by the defendant, but had previously been employedby the defendant as a design engineer. At the time of trial, the expert was earning the vast major ity o f his income by testifying for that particular defendant or its affiliates and had, in fact, testifiedfor 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 testimon y did not cover a material point. In fact, the plaintiff emphasized the veracity and reliability of the experts. The plaintiff called Dr. Benedict as h er 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 paidthe experts' fees cannot alone establish bias to overcome plausible and uncontradicted evidence that the d esign benefits outweighedany 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 vacatedand the case remanded with instructions that judgment be entered for the defendant. No costs are awarded.