PRESENT: Lemons, C.J., Millette, Mims, McClanahan, and Powell, 

JJ., and Russell and Lacy, S.JJ. 

HYUNDAI MOTOR COMPANY, LTD., ET AL. 

 OPINION BY 

v. Record No. 140216 JUSTICE ELIZABETH A. McCLANAHAN 

 JANUARY 8, 2015 

KEITH ALLEN DUNCAN, INDIVIDUALLY 

AND AS GUARDIAN AND CONSERVATOR 

FOR ZACHARY GAGE DUNCAN, ET AL. 

FROM THE CIRCUIT COURT OF PULASKI COUNTY 

Colin R. Gibb, Judge 

 In this products liability action, Hyundai Motor Company, 

Ltd., and Hyundai Motor America, Inc. (Hyundai) appeal from a 

judgment entered on a jury verdict in favor of Keith Allen 

Duncan and Vanessa Duncan, Guardians and Conservators for 

Zachary Gage Duncan (Gage), and Keith Allen Duncan and Vanessa 

Duncan, Individually.1

 Hyundai contends the circuit court erred 

in admitting the opinion testimony of the Duncans' designated 

expert witness, who testified that the location of the side 

airbag sensor in the 2008 Hyundai Tiburon being driven by Gage 

when he sustained injuries in a single-vehicle accident 

rendered the Tiburon unreasonably dangerous. We agree and will 

reverse the judgment of the circuit court. 

 

1

 The jury was unable to reach a verdict when the case was 

first tried in 2012. After the case was retried in 2013, the 

jury returned a verdict for the Duncans in the amount of 

$14,140,000. 
2

I. BACKGROUND 

 Gage sustained a serious closed-head injury while driving 

his 2008 Hyundai Tiburon when he lost control of the vehicle, 

causing the vehicle to leave the road, strike two snow banks 

and a large bale of hay, before ultimately colliding with a 

tree on the driver's side of the vehicle. Although the Tiburon 

was equipped with a side airbag system, the airbag did not 

deploy. 

 The Duncans brought an action against Hyundai, which 

manufactured and distributed the 2008 Tiburon being driven by 

Gage, and initially asserted claims for negligence, failure to 

warn, breach of implied warranty of merchantability, breach of 

implied warranty of fitness for a particular purpose, and 

breach of express warranties. At trial, the Duncans pursued 

only their claim for breach of implied warranty of 

merchantability in which they assert that the "Tiburon was 

defective, unreasonably dangerous, was not fit for the ordinary 

purpose for which it was intended, and did not pass without 

objection in the industry in which it was sold." Specifically, 

the Duncans contend that if the sensor for the side airbag 

system had been placed in a different location, the airbag 

would have deployed and prevented Gage's injury. 
3

II. Expert Testimony of Design Defect 

 To support their claim, the Duncans designated Geoffrey 

Mahon (Mahon), a mechanical engineer, as an expert in airbag 

design to testify that the 2008 Hyundai Tiburon was defectively 

designed. Mahon expressed the opinion that if Hyundai had 

located the sensor for the side airbag system on the B-pillar 

of the vehicle (the pillar where the front door closes), 

approximately 4 to 6 inches from the floor, instead of on the 

cross-member underneath the driver's seat, the side airbag 

would have deployed. Therefore, according to Mahon, the 

location of the side airbag sensor on the cross-member rendered 

the 2008 Tiburon unreasonably dangerous. 

A. Motion in Limine 

 Prior to trial, Hyundai moved to exclude Mahon's opinions 

as having an insufficient foundation because Mahon did not 

conduct any analysis to determine whether the side airbag would 

have deployed if the sensor had been located where Mahon 

proposed. 

 When deposed, Mahon testified that in reaching his 

opinion, he relied upon a computer-aided engineering study 

conducted by Hyundai in 1999 in which Hyundai analyzed 14 

potential locations for the side airbag sensor, including a 

location on the B-pillar that was 10 to 12 inches from the 
4

floor.2 Mahon did not adopt any of the 14 locations analyzed by 

Hyundai for his placement of the side airbag sensor, but 

determined that a location on the B-pillar approximately 4 to 6 

inches from the floor "would be [his] first choice." He 

further explained that since Hyundai did not analyze the 

location he proposed, he would "have to run tests to verify 

that that's just the right location, but based on [Hyundai's] 

evidence of the somewhat higher B-pillar location, that looks 

very promising." 

 While Mahon believed the best location for the sensor was 

at the B-pillar, he testified he did no testing to determine if 

the side airbag would have deployed in Gage's accident had the 

sensor been placed at any other location. 

Q . . . Have you done any test or calculation to show 

that some other sensing system location if used in the 

Duncan Tiburon would have caused the side air bag to fire 

in this crash? 

A I have not done any tests, I think as I indicated 

earlier, nor have I done any serious calculations. What 

I've done is look at the signal at the B-pillar and the 

signal at the location and concluded that I got a much 

more robust and timely signal at the B-pillar. 

(Emphasis added.) The circuit court denied Hyundai's 

motion to exclude Mahon's testimony, and he was permitted 

 

2

 Based on the 1999 location study and subsequent crash 

testing, Hyundai decided to place the sensor on the crossmember underneath the driver's seat. 
5

to express his opinions at trial, over Hyundai's 

objections.3

B. Trial Testimony 

 At trial, Mahon testified that Hyundai was not required 

under Federal Motor Vehicle Safety Standards (FMVSS) to install 

a side-impact airbag system in the 2008 Tiburon, and that the 

2008 Tiburon would have complied with the FMVSS for side impact 

protection without any side airbag system. 4 Nevertheless, 

according to Mahon, if a manufacturer decides to put in an 

airbag system and "tell people there's a safety system in this 

car that's going to work a certain way and then it doesn't 

work? It's got to work. I mean, that's just improper." 

 Mahon's initial impression of the airbag system was that 

"the airbag should have gone off," but upon further 

investigation, he concluded that the system was acting as 

designed "so this indicates that it was designed improperly, 

because this is a crash where you really need an airbag." 

Mahon agreed that the 2008 Tiburon, with the side airbag 

system, complied with FMVSS 214, the standard specifically 

 

3

 The circuit court ruled on Hyundai's motion to exclude 

Mahon's opinion prior to the first trial and adopted its ruling 

prior to the second trial. 

4

 As Mahon explained, the National Highway Traffic Safety 

Administration is responsible for regulating the safety 

performance of motor vehicles and has established the FMVSS as 

minimum standards with which all vehicles sold in the United 

States must comply. 
6

related to side impact protection. He further acknowledged 

that the 2008 Tiburon "did reasonably well" when Hyundai 

conducted 22 crash tests in which it ran the vehicle into 

different types of barriers, at different speeds and angles, 

with the side airbag sensor located on the cross-member 

underneath the driver's seat.5

 In Mahon's opinion, however, the side airbag would have 

deployed in Gage's accident if the sensor for the side airbag 

system had been located on the B-pillar, approximately 4 to 6 

inches from the floor. According to Mahon, this was true even 

though the sensor on the cross-member underneath the driver's 

seat was closer to the point of impact than it would have been 

if the sensor had been located in the B-pillar because 

Hyundai's 1999 location study showed that there was a much 

better signal on the B-pillar.6 In Mahon's view, therefore, the 

2008 Tiburon was defectively designed and unreasonably 

 

5

 Mahon did not dispute that the side airbag system in the 

2008 Tiburon performed as designed and offered good protection 

when deployed. 

6

 According to Mahon, Hyundai's concerns with oscillations 

and other "noise" at outboard locations such as the B-pillar 

were unfounded because "we've been dealing with those noisy 

locations since the 1980s," and he discounted Hyundai's 

determination that the B-pillar location had poor responsive 

characteristics to door impact. 
7

dangerous because the sensor for the side airbag system was not 

located on the B-pillar. 

 Consistent with his deposition testimony, Mahon testified 

at trial that he did not perform an analysis to determine 

whether the side airbag in the 2008 Tiburon would have deployed 

if the sensor was in a different location but relied upon the 

results of the location study undertaken by Hyundai in 1999. 

Mahon conceded that the location on the B-pillar considered by 

Hyundai was located 10 to 12 inches from the floor, and he had 

no data demonstrating the performance of a sensor located on 

the B-pillar 4 to 6 inches from the floor. He further agreed 

that because the airbag system must work quickly, that is the 

sensor system must decide within 15 milliseconds of a crash 

event whether an airbag is required and then inflate the airbag 

in 15 to 50 milliseconds, the location of the sensor is 

important to the overall crash sensing system such that inches, 

and even increments smaller than inches, matter in the 

determination of the location of the sensor. 

 Though Mahon testified that the vehicle's crash sensing 

system is "a combination of the structure of the vehicle, the 

sensors themselves, and then any algorithm . . . working 

together to make a decision whether or not this event is worthy 

of an airbag," he acknowledged that he had not performed any 

tests to determine whether any different sensor location, 
8

structure, or mathematical algorithm would have caused the side 

airbag to deploy in Gage's crash. 

Q Have you done any test or calculation to show that some 

other side sensor location if used in the Duncan Tiburon 

would have caused the side airbag to fire in this crash? 

A Based on my industry experience, my analysis says yes. 

Have I done a calculation? No. 

Q Have you done any test? 

A Of course not. 

Q . . . Have you done any test or calculation to show 

that some other structure, if used in the Duncan Tiburon, 

would have caused the side airbag to fire in this crash? 

A. Haven't done it. 

Q Have you done any test or calculation to show that some 

other algorithm, if used in the Duncan Tiburon, would have 

caused the side airbag to fire in this crash? 

A Well, in fact I think it would. I haven't done that 

work. 

(Emphasis added.) Relying instead on his "industry 

experience," Mahon testified that the data in Hyundai's 

location study "spoke to [him] . . . [a]s one skilled in the 

art." 

III. ANALYSIS 

 On appeal, Hyundai argues there was an insufficient 

foundation for Mahon's opinion that the location of the sensor 
9

for the side airbag system rendered the 2008 Tiburon 

unreasonably dangerous.7

 Expert opinion may be admitted to assist the fact finder 

if such opinion satisfies certain requirements, "including the 

requirement of an adequate factual foundation." Forbes v. 

Rapp, 269 Va. 374, 381, 611 S.E.2d 592, 596 (2005); see Va. 

Code §§ 8.01-401.1 and -401.3; Va. R. Evid. 2:702 and 2:703; 

Countryside Corp. v. Taylor, 263 Va. 549, 553, 561 S.E.2d 680, 

682 (2002). Since we review the circuit court's evidentiary 

rulings using an abuse of discretion standard, we will reverse 

the circuit court's decision to admit evidence only upon a 

finding of abuse of that discretion. John Crane, Inc. v. 

Jones, 274 Va. 581, 590, 650 S.E.2d 851, 855 (2007). A circuit 

court, though, "has no discretion to admit clearly inadmissible 

evidence." Harman v. Honeywell Int'l, Inc., 288 Va. 84, 92, 

758 S.E.2d 515, 520 (2014). 

 As we have stated, "[q]ualification of an expert witness 

does not insure admission of his every statement and opinion." 

Swiney v. Overby, 237 Va. 231, 233, 377 S.E.2d 372, 374 (1989). 

While Code § 8.01-401.1 allows an expert to express an opinion 

without initially disclosing the basis for the opinion, "[w]e 

 

7

 Our resolution of the case on this issue makes it 

unnecessary for us to address Hyundai's additional assignments 

of error. 
10

have never, however, construed that section to permit the 

admission of expert testimony that lacks evidentiary support." 

Vasquez v. Mabini, 269 Va. 155, 159, 606 S.E.2d 809, 811 

(2005). Expert opinion must be premised upon assumptions that 

have a sufficient factual basis and take into account all 

relevant variables. 

"Expert testimony founded upon assumptions that have no 

basis in fact is not merely subject to refutation by 

cross-examination or by counter-experts; it is 

inadmissible. Failure of the trial court to strike such 

testimony upon a motion timely made is error subject to 

reversal on appeal. Furthermore, expert testimony is 

inadmissible if the expert fails to consider all the 

variables that bear upon the inferences to be deduced from 

the facts observed." 

CNH America LLC v. Smith, 281 Va. 60, 67, 704 S.E.2d 372, 375 

(2011) (quoting Vasquez, 269 Va. at 160, 606 S.E.2d at 811). 

 Mahon's opinion that the 2008 Tiburon was unreasonably 

dangerous was premised upon his assumption that the side airbag 

would have deployed if the sensor had been located on the 

vehicle's B-pillar. Yet, as Mahon readily conceded, he did not 

perform any analysis or calculations to support this 

assumption. In fact, Mahon admitted that the crash sensing 

system depends upon a combination of the structure of the 

vehicle, the sensors themselves, and any algorithm, but he did 

not perform any tests to determine whether a different sensor 

location, structure, or algorithm would have caused the side 

airbag to deploy in Gage's crash. Furthermore, despite his 
11

testimony that inches, and even increments smaller than inches, 

matter when choosing the sensor location, his proposed location 

was more than four inches from any location studied by Hyundai. 

In short, Mahon's opinion that the 2008 Tiburon was 

unreasonably dangerous was without sufficient evidentiary 

support because it was premised upon his assumption that the 

side airbag would have deployed if the sensor was at his 

proposed location – an assumption that clearly lacked a 

sufficient factual basis and disregarded the variables he 

acknowledged as bearing upon the sensor location determination. 

Although experts may extrapolate opinions from existing data, a 

circuit court should not admit expert opinion "which is 

connected to existing data only by the ipse dixit of the 

expert." General Elec. Co. v. Joiner, 522 U.S. 136, 146 (1997) 

(decided under the version of Fed. R. Evid. 702 which the 

General Assembly adopted, verbatim, in current Code § 8.01-

401.3(A)). Mahon's opinion that the vehicle was unreasonably 

dangerous was based on his ipse dixit assumption that the side 

airbag would have deployed in Gage's crash if the sensor had 

been located on the B-pillar. But the "analytical gap" between 

the data Mahon relied upon from Hyundai's location study and 

the opinion he proffered was "simply too great." Id. 

Therefore, Mahon's opinion was inadmissible, and the circuit 

court abused its discretion in admitting it. 
12

 The Duncans relied upon Mahon's opinion that the 2008 

Tiburon was unreasonably dangerous to satisfy their burden of 

proving that Hyundai breached its implied warranty of 

merchantability.8 As we have concluded, however, Mahon's 

opinion was premised upon his unfounded assumption that the 

side airbag would have deployed if the sensor had been located 

on the B-pillar of the vehicle instead of on the cross-member 

underneath the driver's seat.9

 Because Mahon's opinion supplied 

 

8

 The Duncans claim that Hyundai breached its implied 

warranty of merchantability alleging that the "Tiburon was 

defective, unreasonably dangerous, was not fit for the ordinary 

purpose for which it was intended, and did not pass without 

objection in the industry in which it was sold." See Code § 

8.2-314(2)("Goods to be merchantable must be at least such as 

(a) pass without objection in the trade" and "(c) are fit for 

the ordinary purpose for which such goods are used."). The 

Duncans were required to prove that the 2008 Tiburon was 

unreasonably dangerous for the use to which it would ordinarily 

be put or some other foreseeable purpose and that such 

condition existed when the vehicle left Hyundai's hands. 

Morgen Indus., Inc. v. Vaughan, 252 Va. 60, 65, 471 S.E.2d 489, 

492 (1996); Logan v. Montgomery Ward & Co., 216 Va. 425, 428, 

219 S.E.2d 685, 687 (1975); see Bayliner Marine Corp. v. Crow, 

257 Va. 121, 128, 509 S.E.2d 499, 503 (1999) (party claiming 

breach of implied warranty of merchantability must prove 

failure to meet an established standard of merchantability in 

the trade); see also Turner v. Manning, Maxwell & Moore, Inc., 

216 Va. 245, 251, 217 S.E.2d 863, 868 (1975) (evidence of 

industry custom "may be conclusive when there is no evidence to 

show that [the product] was not reasonably safe"). 

9

 Since we conclude that Mahon's opinion lacked an adequate 

foundation, it is unnecessary for us to address whether the 

addition of the side airbag system to the 2008 Tiburon could 

render the vehicle unmerchantable when the vehicle was 

indisputably merchantable without the system and the side 

airbag did not cause Gage's injuries. 
13

the only support for the Duncans' claim that the vehicle was 

unreasonably dangerous, the inadmissibility of Mahon's opinion 

as a matter of law is fatal to the Duncans' claim and entitles 

Hyundai to judgment as a matter of law. 

IV. CONCLUSION 

 For the foregoing reasons, we will reverse the judgment of 

the circuit court and enter final judgment for Hyundai. 

 Reversed and final judgment. 

JUSTICE POWELL, dissenting. 

 I disagree with majority’s conclusion that the opinion of 

Geoff Mahon, the plaintiff’s expert, lacked an adequate 

foundation and should have been struck. In my opinion, the 

majority reaches this conclusion by improperly focusing on 

Mahon’s preferred location for the side airbag sensor, even 

though it is clear that he did not base his conclusion on this 

preferred location. In so doing, the majority fails to view 

Mahon’s testimony in the light most favorable to the Duncans, 

the prevailing party below. See Dagner v. Anderson, 274 Va. 

678, 681, 651 S.E.2d 640, 641 (2007) (viewing the evidence in 

the light most favorable to the prevailing party below when 

reviewing whether the trial court erred in allowing expert 

testimony). 
14

 On direct examination Mahon clearly relied on the findings 

of Hyundai’s 1999 location study and his calculations from the 

crash severity analysis to determine that the airbag would have 

deployed if the sensor was in the specific location1 on the Bpillar that Hyundai tested in the 1999 location study 

(hereafter referred to as the “B-pillar Location”). According 

to Mahon, the 1999 location study indicated that the signal 

received by the cross member had “less amplitude” and was 

“later than at the more outboard location such as the sill and 

the B-pillar. Or even the door.” Indeed, he goes on to 

specifically state that “Hyundai’s own location 

study . . . show[s] that you get a much better signal on the Bpillar than you do on the cross member.” Furthermore, the 

crash severity analysis indicated that the G-forces generated 

by the impact in this case were significantly higher than the 

threshold Hyundai established for triggering an airbag. 

Specifically, he calculated that the impact in the present case 

generated approximately 7.2 Gs, whereas Hyundai’s own data 

indicated that it wanted an airbag to deploy at 5.1 Gs or 

above. 

 

1

 Notably, in the 1999 location study, Hyundai only tested 

a single B-pillar location. 
15

 Using the signal strength data contained in the 1999 

location study, he extrapolated that the airbag did not deploy 

because the sensor did not receive a strong enough signal due 

to its location on the cross member. Specifically, he opined 

that the cross member was too far “inboard” and not rigid 

enough to receive the necessary signal. He went on to 

determine that, because the B-pillar was a more rigid 

structure, located in the crush zone, a sensor placed there 

would receive a stronger signal, resulting in airbag 

deployment. Thus, in Mahon’s expert opinion, the B-pillar 

Location would have resulted in airbag deployment in the 

present case.2

 The majority, however, never addresses any of this 

testimony by Mahon. Indeed, notwithstanding the fact that 

almost all of Mahon’s testimony related to sensor placement in 

a specific location on the B-pillar, i.e., the location on the 

B-pillar subject to testing in the 1999 location study, the 

majority characterizes this testimony as disregarding “the 

variables . . . bearing upon the sensor location 

determination.” Instead, the majority focuses on statements by 

 

2

 Notably, Mahon specifically testified that a properly 

designed airbag system for the 2008 Tiburon would have had the 

side impact sensor on the B-pillar and that a properly designed 

airbag system would have deployed an airbag in the present 

case. 
16

Mahon relating to what he believed would be the ideal location 

for a side airbag sensor in the 2008 Tiburon. Specifically, 

the majority focuses on the testimony that Mahon believed that 

the ideal location for the airbag sensor would be on the Bpillar, approximately four to six inches from the floor 

(hereafter referred to as the “Proposed Location”). 

 It is important to note, however, that there was no 

mention of the Proposed Location during Mahon’s direct 

examination. Rather, it is on cross-examination that the idea 

of placing the sensor in the Proposed Location was first 

brought up at trial. Even then, the Proposed Location was only 

brought up after Hyundai’s attorney confirmed that Mahon’s 

prior testimony about the B-pillar Location was based on the 

1999 location study.3

 The majority also relies on Mahon’s testimony where he 

“admits” that he had not done any tests or calculations showing 

that placing the sensor in another location would have resulted 

 

3

 Indeed, immediately prior to bringing up the alternative 

location, Hyundai’s attorney specifically asked Mahon: 

The data that you looked at and that you 

rely on for expressing your opinion about 

the B-pillar being a better location than 

underneath the driver’s seat . . . is based 

on the sensor study work that was done with 

the B-pillar location there; right? 
17

in the airbag deploying. In my opinion, however, this 

testimony is taken completely out of context. The testimony 

cited by the majority is clearly in reference to the Proposed 

Location, not the B-pillar Location studied by Hyundai. 

Indeed, it is particularly telling that the quoted exchange 

takes place immediately after the discussion of the Proposed 

Location. Thus, placed in the proper context, it is clear that 

Mahon was admitting that he had not performed any tests to 

determine whether the Proposed Location would have caused the 

side airbag to deploy in Gage’s crash. Moreover, this 

“admission” is rebutted by Mahon’s lengthy testimony about the 

calculations he performed as part of his crash severity 

analysis. With regard to the B-pillar Location, Mahon 

consistently maintained that, based on Hyundai’s own study and 

his calculations in the crash severity analysis, a sensor 

placed on the B-pillar in the location tested by Hyundai in the 

1999 location study would have deployed in this accident. 

 “Expert testimony is inadmissible if it is speculative or 

founded on assumptions that have an insufficient factual 

basis.” John v. Im, 263 Va. 315, 320, 559 S.E.2d 694, 696 

(2002). For that reason, I agree with the majority that 

Mahon’s testimony about the Proposed Location was without 

sufficient foundation. However, the majority’s opinion goes 

significantly beyond striking Mahon’s testimony about the 
18

Proposed Location. Rather, the majority implies that, because 

Mahon, in relying on his knowledge and experience, believes a 

better, untested alternative potentially exists, his opinion as 

a whole is invalid. The majority gives no indication how the 

foundation of Mahon’s testimony relating to the B-pillar 

Location is undermined by Mahon’s belief that the Proposed 

Location may be better than any of the tested locations.4 

Further, there is nothing in the record indicating that he 

based his testimony about the B-pillar Location on his belief 

that the Proposed Location may offer a better alternative to 

those tested in the 1999 Location Study. Nor is such a belief 

mutually exclusive with his testimony about the B-pillar 

Location. Accordingly, in my opinion, Mahon’s opinion about 

the B-pillar Location had sufficient foundation and, therefore, 

the trial court did not err in allowing him to testify.

 That said, I would still reverse the decision of the trial 

 

4

 I feel it is important to point out that, given the way 

in which the testimony about the Proposed Location was adduced 

at trial, the majority opinion could potentially lead to 

parties purposefully asking opposing experts about untested 

alternative theories that relate to the subject matter at issue 

and then using this testimony as a means of disqualifying those 

experts. 
19

court. In my opinion, the trial court erred in refusing to 

give Hyundai’s Proposed Jury Instruction 21.5

A litigant is entitled to jury instructions 

supporting his or her theory of the case if 

sufficient evidence is introduced to 

support that theory and if the instructions 

correctly state the law. When we review 

the content of jury instructions, our sole 

responsibility . . . is to see that the law 

has been clearly stated. Determining 

whether a proffered jury instruction 

accurately states relevant legal principles 

is a question of law reviewed de novo on 

appeal. 

Smith v. Kim, 277 Va. 486, 491, 675 S.E.2d 193, 196 (2009) 

(citations and internal quotation marks omitted). 

 Hyundai’s Proposed Jury Instruction 21 is an accurate 

statement of the law. Indeed, it does not inform the jury that 

Hyundai’s compliance with the Federal Motor Vehicle Safety 

Standards (“FMVSS”) was dispositive. Rather, it merely 

provides the jury with a guide for determining whether the 

 

5

 Hyundai’s Proposed Jury Instruction 21 stated: 

In determining what constitutes a defective 

product, you may consider, along with other 

evidence in the case, any pertinent safety 

standards issued by the government and any 

pertinent custom in the industry at the 

time the motor vehicle was manufactured. 

Such evidence may assist you in determining 

whether or not the motor vehicle in 

question was defective, but does not 

require that you find one way or the other 

as to that issue. 
20

Tiburon was reasonably safe or unreasonably dangerous. 

Furthermore, as the United States Court of Appeals for the 

Fourth Circuit has recognized, evidence relating to a 

manufacturers compliance with the FMVSS is “relevant and 

necessary” to demonstrate a company’s care in bringing a 

product to market. S.L.M. v. Dorel Juvenile Group, Inc., 514 

Fed. Appx. 389, 392 (4th Cir. 2013) (approving a similar 

instruction relating to a different FMVSS standard). 

Therefore, I would reverse the trial court’s judgment based 

upon its refusal to give Hyundai’s Proposed Jury Instruction 21 

and remand the case for retrial.