Supreme Court of Texas

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No. 21-1097

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American Honda Motor Co., Inc.,

Petitioner,

v.

Sarah Milburn, 

Respondent

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On Petition for Review from the

Court of Appeals for the Fifth District of Texas

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JUSTICE BLACKLOCK, joined by Justice Busby, concurring.

I agree with the dissent that the Legislature has left it to Texas 

juries, not federal bureaucrats, to determine in products-liability cases 

whether “federal safety standards or regulations applicable to [a] 

product were inadequate to protect the public from unreasonable risks 

of injury or damage.” TEX. CIV. PRAC. & REM. CODE § 82.008(b)(1). 

Under this statute, the fact finder has wide latitude to answer an 

unusual question, one that is neither a conventional question of fact nor 

a conventional question of law. Whether a federal regulation is 

“adequate” or “inadequate” to protect the public is really a question of 
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policy and politics—which makes judicial application of this statute 

somewhat confounding.

I see no way to separate the question of a regulation’s “adequacy” 

from the political value judgments of the person answering the question. 

A very lenient seat-belt-design regulation might look perfectly adequate 

to a juror who values liberty and lowering costs much more highly than 

he values safety. For decades, American cars were steel death traps 

compared to today’s cars, and there were few seat-belt laws at all, much 

less federal regulation of the minute details of their design. Cars were 

more dangerous, but they were also cheaper and simpler. The world 

kept turning. Our government later decided to impose greater 

regulation in the name of safety, but many jurors might believe that the 

era of little or no regulation was perfectly “adequate.”

On the other hand, a juror who values safety much more highly 

than liberty might conclude that any regulation that does not go as far 

as reasonably possible to ensure maximum safety for every passenger is 

inadequate—even if imposing the regulation would heighten costs and 

inconvenience drivers. This juror might conclude that a seat-belt-design 

regulation is not “adequate to protect the public” unless the car is 

prevented from moving if there is weight on the seat but the seat belt is 

not correctly fastened. Such a regulation might have protected Ms. 

Milburn and many others. But it also might impose significant costs on 

manufacturers and consumers, and it would surely be an impractical 

inconvenience for many drivers. How do we balance those competing 

values? One juror might call this strict regulation the product of a 
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nanny state gone wild, while another juror might say we are crazy not

to do it if it saves one life. Most jurors would fall somewhere in between.

Are any of these hypothetical jurors wrong? The only way for a 

court to say so would be for the court to make political value judgments 

of its own about the proper way to balance the competing interests at 

stake. For better or worse, when it comes to seat belts, such political 

value judgments are generally entrusted to the federal government’s 

National Highway Traffic Safety Administration. The federal agency’s 

balancing of the myriad values and interests at play results in a 

promulgated federal regulation. That regulation affects 

products-liability litigation in Texas, because the Legislature has 

created a rebuttable presumption that a vehicle manufacturer is not 

liable if it complied with the applicable federal standards. Id.

§ 82.008(a).

The presumption is rebutted, however, if the “federal safety 

standards or regulations applicable to [a] product were inadequate to 

protect the public from unreasonable risks of injury or damage.” Id.

§ 82.008(b)(1). For the foregoing reasons, I understand this provision to 

authorize the fact finder to substitute his own political judgment about 

the regulation’s “adequacy” for that of NHTSA. It feels odd to call this 

essentially political judgment a “fact question,” but that seems to be the 

statutory design, and so courts must apply it as best we can. I therefore 

agree with the dissent that a jury has very wide latitude to disagree with 

the federal agency’s decision and, on that basis alone, to override the 

presumption of non-liability. Assuming the jury has been given a 

sufficient evidentiary predicate by which to second-guess the agency’s 
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decision (more on that below), a jury’s disagreement with the agency’s 

decision should be essentially unreviewable. A court cannot 

second-guess a jury’s disagreement with a federal agency’s value-laden 

policy judgments without imposing the court’s own value-laden policy 

judgments. I see nothing in this statute that would authorize a court to 

do so.

Despite my agreement with many of the broad strokes argued by 

the dissent, I nevertheless concur in the Court’s judgment and its 

opinion for two reasons. First, unlike the dissent, I do not read the 

Court’s opinion to limit the grounds on which a plaintiff can demonstrate 

a regulation’s inadequacy. See post at 3–4 (Devine, J., dissenting)

(suggesting that the Court leaves open only two ways of demonstrating 

regulatory inadequacy). The Court does say that regulatory inadequacy 

can be shown by poking holes in the agency’s decision-making process 

or by showing that new information has come to light since the 

regulation was enacted. Ante at 28–29, 33–34. But the Court never says 

these are the only two ways to rebut the presumption. Instead, the 

Court acknowledges that a plaintiff might argue simply that the federal 

agency “got it wrong”—that is, that the agency did an “inadequate” job 

balancing the many competing values and interests at stake, and the 

jury should therefore disagree with the agency’s judgments and override 

the presumption. Id. at 30, 34 n.23. I read the Court’s opinion to 

correctly leave this line of argument open, and I would not join the 

Court’s opinion unless it did so.

Second, I agree with the Court on the following crucial point: 

“Absent a comprehensive review of the various factors and tradeoffs 
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NHTSA considered in adopting [the] safety standard, as a general 

matter neither we nor a jury can deem a particular regulation 

‘inadequate’ to prevent an unreasonable risk of harm to the public as a 

whole.” Id. at 32–33 (footnotes omitted). Many, many considerations go 

into the creation of a federal regulation of this nature, and passenger 

safety is just one of them. Other obvious considerations are cost, 

convenience, and practicality. Surely there are others. A fact finder 

cannot validly judge a federal agency’s balancing of these values unless 

he knows something about how the regulatory process works and has a 

sense of the many conflicting considerations and competing values—

safety just one among them—that contributed to the promulgated 

regulation.

Honda’s lead argument in this Court is not that the jury has no 

authority to conclude that the federal agency “got it wrong.” Instead, 

Honda’s argument is that we cannot validly ask a jury to say whether a 

federal agency “got it wrong” unless the jury has been informed about 

the regulatory process and the many competing considerations it 

entails. As Honda puts it, “a qualified regulatory expert would need to 

explain why, in the context of the entire regulatory history and the 

delicate balance between absolute safety and commercial feasibility, the 

agency’s determination was . . . ‘inadequate.’” Pet. Brief at 18. I agree. 

Here, the plaintiff’s two experts focused on establishing the 

defectiveness of the seat belt’s design. Neither expert aided the jury in 

understanding the complex landscape confronting NHTSA when it made 

its decision. And without such testimony, there is no evidentiary basis 
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for a finding that, all things considered, the regulation is “inadequate to 

protect the public.” TEX. CIV. PRAC. & REM. CODE § 82.008(b)(1).

By focusing on the regulation’s failure to promote passenger 

safety as strongly as it could have, the plaintiff’s experts did essentially 

the opposite of what was required. They encouraged the jury to condemn 

the regulation based on the singular consideration of passenger safety. 

Their burden instead was to convince the jury that, balancing passenger 

safety with the many other relevant factors bearing on its decision, 

NHTSA’s regulation was, all things considered, “inadequate.” Because 

the plaintiff never presented such a case to the jury despite Honda’s 

consistent argument that this was required, I agree with the Court that 

the jury’s finding of regulatory inadequacy cannot stand.

With these points noted, I respectfully concur.

 

 James D. Blacklock

 Justice

OPINION FILED: June 28, 2024