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

Supreme Court of Texas
══════════
No. 21-1097
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American Honda Motor Co., Inc.,
Petitioner,

v.

Sarah Milburn,
Respondent

═══════════════════════════════════════
On Petition for Review from the
Court of Appeals for the Fifth District of Texas
═══════════════════════════════════════

JUSTICE DEVINE, joined by Justice Boyd, dissenting.

Under Texas law, a product manufacturer is presumed not liable
for injuries caused by a design defect when the design complied with
applicable federal safety standards governing the alleged product risk.1
But the Legislature expressly made this statutory presumption
“rebuttable,” entrusting our juries—not federal bureaucrats—to
ultimately determine whether federal safety standards adequately
protect Texas citizens. One way a plaintiff can rebut the presumption
is to establish that the relevant standards “were inadequate to protect

1 TEX. CIV. PRAC. & REM. CODE § 82.008(a).
the public from unreasonable risks of injury or damage”; nothing more,
nothing less.2
In this case, the jury found that (1) Honda designed an
unreasonably dangerous detachable seatbelt system that caused a
young woman to be clotheslined in a car crash, resulting in quadriplegia
paralysis, and (2) the federal safety standard that greenlighted this
design was inadequate to protect the public from unreasonable risks.
The Court nevertheless overturns the jury’s verdict. In doing so, the
Court measures the evidence of the standard’s inadequacy against
newly crafted requirements that are not only extra-textual but also
unduly deferential to the federal bureaucrats’ decision-making process,
which only sets forth the “bare minimum” standards for selling a vehicle.
I respectfully dissent and would affirm the jury’s verdict. When
the evidence is considered in light of the statute’s plain language, which
the charge tracked, it is legally sufficient to support the jury’s express
finding that the relevant federal safety standard was inadequate to
protect the public. But even if the Court’s newly adopted hurdles were
proper, this grievously injured young woman should—at the very least—
be given a fair opportunity to clear them. The Court’s unwillingness to
remand for a new trial suggests an awareness that these statutory
embellishments would be impossible to satisfy, which effectively
converts the legislatively mandated “rebuttable” presumption into one
that is conclusive.

2 Id. § 82.008(b)(1). Alternatively, the plaintiff may rebut the
presumption by establishing that the manufacturer “withheld or
misrepresented information or material” relevant to the federal government’s
adequacy determination of the safety standards at issue. Id. § 82.008(b)(2).

2
I
In construing statutes, the starting point must always be the text:
“the alpha and the omega of the interpretative process.”3
Section 82.008(a) of the Texas Civil Practice and Remedies Code creates
a “rebuttable presumption” that a product manufacturer is “not liable”
for injury caused by a product design if the manufacturer establishes
(1) the “design complied with mandatory [federal] safety standards or
regulations” that (2) were “applicable to the product at the time of
manufacture” and (3) “governed the product risk that allegedly caused
the harm.”4 If a manufacturer meets this burden, Section 82.008(b)(1)
allows the claimant to rebut the presumption by establishing that “the
mandatory federal safety standards or regulations applicable to the
product were inadequate to protect the public from unreasonable risks
of injury or damage.”5
Belying the statutory text, the Court adopts a new rule requiring
a plaintiff to establish one of two limited options to demonstrate a
standard’s inadequacy and rebut the presumption of nonliability:
(1) the agency’s decision-making in enacting the standard was
either arbitrary or capricious—a highly deferential
standard—or lacked “cogen[cy]” in light of a “comprehensive

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

(Tex. 2017).
4 TEX. CIV. PRAC. & REM. CODE § 82.008(a).

5 Id. § 82.008(b)(1).
For purposes of this analysis, I assume that Honda
adduced sufficient evidence to invoke the statutory presumption.

3
review of the various factors and tradeoffs . . . considered in
adopting that safety standard,”6 or

(2) post-approval developments rendered the safety standard no
longer adequate to protect the public.7

If not, according to the Court, “neither we nor a jury can deem a
particular regulation ‘inadequate’ to prevent an unreasonable risk of
harm to the public as a whole.”8
But nothing in the statutory text so restrictively circumscribes
the jury’s role in determining this question of fact.9 “When decoding
statutory language, we are bound by the Legislature’s prescribed means
(legislative handiwork), not its presumed intent (judicial guesswork).”10

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

669 (6th Cir. 2013), which applied an “arbitrary and capricious” standard of
review to invalidate federal agency action under the Administrative Procedure
Act), 29-33 (requiring extensive evidence of “the various considerations” the
federal agency “must take into account in making regulatory determinations”
and a “comprehensive review of the various factors and tradeoffs”).
7 Id. at 33-34 (noting that “subsequent developments,” including “a
material change in technology or a proliferation of new studies or data about
risks and injuries associated with a compliant product,” could demonstrate a
standard’s inadequacy).
8 Id. at 33. Although the Court denies limiting the rebuttal grounds to
only two stated options, the Court fails to identify any others. See id. at 34
n.23; infra at note 60 and accompanying text.
9 See Kim v. Am. Honda Motor Co., 86 F.4th 150, 170 (5th Cir. 2023)

(“[W]hether the presumption has been rebutted is a question of fact for the
jury.”); Wright v. Ford Motor Co., 508 F.3d 263, 274 (5th Cir. 2007) (noting that
it is “logical to conclude” from the statutory language that whether the
presumption has been rebutted is a fact question for the jury unless
inadequacy is established as a matter of law).
10 BankDirect Cap. Fin., LLC v. Plasma Fab, LLC, 519 S.W.3d 76, 86-87

(Tex. 2017).

4
According to the statute’s plain language, manufacturers are entitled to
rely on the federal regulation only insofar as the safety standard was—
in fact—adequate “to protect the public from unreasonable risks of
injury or damage.”11 Although a jury may be informed of and persuaded
by a federal agency’s decision-making process in promulgating the
safety standard, the Legislature entrusted the final factual
determination of that standard’s adequacy to our juries alone, not
federal agencies.12

11 TEX. CIV. PRAC. & REM. CODE § 82.008(b)(1). The Court asserts that
“the Legislature made a policy decision that manufacturers at risk of liability
for injuries caused by an allegedly defective design are entitled to rely on a
federal agency’s cogent determination that the pertinent risks associated with
that design are not unreasonable.” Ante at 32. Perhaps legislators were
motivated by this policy in enacting the rebuttable presumption, but the
enacted language says nothing of the kind. See In re Tex. Educ. Agency, 619
S.W.3d 679, 687 (Tex. 2021) (“The polestar of statutory construction is
legislative intent, which we determine from the enacted language.”);
BankDirect, 519 S.W.3d at 86 (“But our 181 legislators—who may have had
181 different motives, reasons, and understandings—nowhere codified an
agreed purpose.”). And perhaps this may be good policy, “but judicial policy
preferences should play no role in statutory interpretation.” McLane
Champions, LLC v. Hous. Baseball Partners LLC, 671 S.W.3d 907, 918 (Tex.
2023); see BankDirect, 519 S.W.3d at 78 (“[D]ivining what the law is, not what
the interpreter wishes it to be” is “the foremost task of legal interpretation.”).
12 To the extent federal law preempts a products-liability claim, the

decision would be out of the jury’s hands and for the federal agency. But
federal preemption does not apply here because even if state tort liability has
the practical effect of restricting a manufacturer’s choice of seatbelt design, it
“does not ‘[s]tand as an obstacle to the accomplishment . . . of the full purposes
and objectives’ of federal law.” Williamson v. Mazda Motor of Am., Inc., 562
U.S. 323, 336 (2011) (quoting Hines v. Davidowitz, 312 U.S. 52, 67 (1941))
(holding that a federal safety standard did not preempt a tort claim premised
on a manufacturer’s failure to install safer seatbelts); see 49 U.S.C.
§§ 30102(a)(10) (describing a “motor vehicle safety standard” as a “minimum
standard”), 30103(e) (“Compliance with a motor vehicle safety standard

5
The Court cabins the jury’s role and divines these limitations by
asserting, “If the standard for rebutting the presumption mirrored the
standard for a product defect, then the presumption would serve no
purpose at all.”13 But this argument rests on a faulty premise. In Utah,
for example, the standards for a product defect and rebutting a similar
presumption mirror each other: both require proof by a preponderance
of the evidence that the product is unreasonably dangerous.14 But the
presumption is not “a nullity,” according to our sister court, because it
“gives a kind of legal imprimatur to the significance of compliance with
federal standards,” “benefit[ting] the manufacturer.”15 The
presumption “clearly communicates” and “highlight[s] for the jury” “the
significance of compliance,”16 making a properly instructed jury “less

prescribed under this chapter does not exempt a person from liability at
common law.”); MCI Sales & Serv., Inc. v. Hinton, 329 S.W.3d 475, 487-99 (Tex.
2010) (holding that a motor vehicle safety standard did not preempt a state
tort claim asserting that a bus manufacturer should have installed safer
seatbelts and laminated-glass windows).
13 Ante at 25.

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

UTAH CODE § 78–15–6(3), now numbered as § 78B–7–703); Niemela v.
Imperial Mfg., Inc., 263 P.3d 1191, 1196 n.4 (Utah Ct. App. 2011) (“The proof
required to rebut the presumption appears to be identical to the proof required
to establish the first element of a prima facie case. Thus, with or without the
presumption, the plaintiff must prove by a preponderance of the evidence that
the product is unreasonably dangerous.” (internal citations omitted)).
15 Egbert, 167 P.3d at 1062 (agreeing “that the Legislature must have

intended to benefit the manufacturer by creating the presumption of
nondefectiveness”); see Niemela, 263 P.3d at 1196 n.4 (noting that “the two
standards, though identically worded, are not necessarily identically onerous”
as a practical matter).
16 Egbert, 167 P.3d at 1062.

6
likely to conclude that a product is unreasonably dangerous.”17 Thus,
even if the standards mirror each other, the presumption would not be
meaningless. And regardless, the effect of any mirroring provides no
basis for importing extra-textual limitations on when a jury could find
that a federal safety standard was inadequate to protect the public.18
I nevertheless agree with the Court that, in Texas, the statutory
language governing rebuttal of the presumption does not perfectly
mirror the liability standard. Rather, it shifts the factfinder’s focus from
the product and its intended user to the safety standard and to the
public as a whole. As a result, when the presumption applies, liability
generally may not be imposed unless a jury finds both that the product
was defectively designed and that the applicable safety standard was
inadequate.19 Although these findings of fact are similar, the Court’s
approach is not necessary to imbue the presumption with meaning
because the jury would weigh and balance the evidence under the
separate inquiries differently.
To determine that a product is defectively designed, “the jury
must conclude that the product is unreasonably dangerous as designed,

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

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

(“[N]o court has the authority, under the guise of interpreting a statute, to
engraft extra-statutory requirements not found in a statute’s text.”).
19 See Wright v. Ford Motor Co., 508 F.3d 263, 274 (5th Cir. 2007) (“[If]

rebutting evidence is not such as to require as a matter of law that the federal
standards be held inadequate, but rather presents a fact question in that
respect, then, in a jury tried case, it appears logical to conclude that the statute
proceeds on the assumption that any such fact question as whether the
presumption has been rebutted will be submitted to the jury.”).

7
taking into consideration the utility of the product and the risk involved
in its use.”20 In balancing whether the product’s risks outweigh its
utility—thereby rendering the product design unreasonably
dangerous—this Court has specified five factors to be considered:
(1) the utility of the product to the user and to the public as
a whole weighed against the gravity and likelihood of
injury from its use; (2) the availability of a substitute
product which would meet the same need and not be unsafe
or unreasonably expensive; (3) the manufacturer’s ability
to eliminate the unsafe character of the product without
seriously impairing its usefulness or significantly
increasing its costs; (4) the user’s anticipated awareness of
the dangers inherent in the product and their avoidability
because of the general public knowledge of the obvious
condition of the product, or of the existence of suitable
warnings or instructions; and (5) the expectations of the
ordinary consumer.21

“This balancing is for the jury unless the evidence allows but one
reasonable conclusion.”22
When a safety standard greenlights an unreasonably dangerous
product to be sold on the open market, it exposes the public to the risks
of injury or damage associated with that product’s use. For that reason,
these risk–utility considerations also would be pertinent to whether the

20 Emerson Elec. Co. v. Johnson, 627 S.W.3d 197, 205 (Tex. 2021)
(quoting Am. Tobacco Co. v. Grinnell, 951 S.W.2d 420, 432 (Tex. 1997)).
21 Id. (quoting Grinnell, 951 S.W.2d at 432); see id. at 209 (noting that

“[w]e would not today conclude that including a legally correct instruction
about the[se] factors was charge error” and assuming, without deciding, that
“a listing of the[se] factors would assist the jury in determining whether a
design defect exists”).
22 Genie Indus., Inc. v. Matak, 462 S.W.3d 1, 10 (Tex. 2015).

8
standard was “inadequate to protect the public from unreasonable risks
of injury or damage.”23 As with the design-defect inquiry, the balancing
would be for a jury alone, so long as the conclusion is one a reasonable
jury could reach. But given the statute’s shift in emphasis for rebutting
the presumption, a jury would balance these considerations differently
by placing greater weight on the evidence of the factors that implicate
the public as a whole. Rarely are these holistic inquiries conclusively
proven as a matter of law,24 and in most cases, a finding that a product
is unreasonably dangerous would not necessitate a finding that the
standard is inadequate to protect the public.25
By requiring both findings of fact to impose liability, the statutory
scheme offers far more than what the Court describes as “illusory
protection to compliant manufacturers.”26 In contrast, the Court unduly
restricts the focus to the federal government’s decision-making, deriving
exclusive requirements to rebut the presumption—e.g., an
arbitrary-or-capricious standard or a “comprehensive review”—that are
neither expressed in nor contemplated by the statutory text. Honda

23 TEX. CIV. PRAC. & REM. CODE § 82.008(b)(1); see ante at 27
(acknowledging that evidence of a defective design “can certainly also be
relevant to the adequacy of the regulation allowing that design”).
24 See Genie Indus., 462 S.W.3d at 3 (noting that whether a product’s

risks outweigh its utility “is usually one of fact for the jury”).
25 I therefore disagree with the Court’s characterization of my position

as requiring the following analysis: “a defendant is liable for a defective design
if the plaintiff proves X, unless the product complies with an applicable federal
safety standard, in which case the defendant is not liable unless the plaintiff
proves X (which has already been proven).” Ante at 28.
26 Id.

9
likewise argues that “recognition of agency expertise . . . requires that a
jury’s evaluation of federal safety regulations must be cabined”;
otherwise, a jury would have “free rein to second-guess and effectively
overrule the expert determinations of federal agencies” and “nullif[y]”
federal standards.
These policy arguments have no textual basis. The statute does
not pose the question of whether the promulgating federal agency—
rightly or wrongly—considered the safety standard adequate to protect
the public. As I have already noted, a federal agency’s determination
may have persuasive force, but the inadequacy question is for the jury
alone. Nor is this the power to nullify federal standards or overrule
agency decisions. A federal safety regulation still serves as a minimum
standard even if a jury disagrees with the promulgating agency and
finds it inadequate to protect the public.27 And by complying with the
applicable minimum standard, a manufacturer acquires the protection
of a presumption that imposes an additional hurdle before liability will
attach while still bearing any resulting tort liability “as a cost of doing
business.”28

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

(“[W]e must be mindful that Congress generally intended the federal safety
standards to set a minimum standard for performance and allowed juries to
determine in particular cases if the vehicle manufacturer should have done
more.”).
28 Cf. Hyundai Motor Co. v. Alvarado, 974 S.W.2d 1, 12 (Tex. 1998)

(“[T]he imposition of common-law liability does not impose any particular
safety standard upon a manufacturer; the manufacturer may choose to comply
with the minimum federal standards and bear tort liability as a cost of doing
business.”).

10
II
Because the question of whether a safety standard adequately
protects the public falls squarely within the factfinder’s discretion, I now
turn to whether legally sufficient evidence supports the jury’s finding.
The “test for legal sufficiency must always be whether the evidence at
trial would enable reasonable and fair-minded people to reach the
verdict under review.”29 “All the record evidence must be considered ‘in
the light most favorable to the party in whose favor the jury verdict has
been rendered,’ and ‘every reasonable inference deducible from the
evidence is to be indulged in that party’s favor.’”30 Judgment against a
jury verdict is proper “only when the law does not allow reasonable
jurors to decide otherwise.”31 When measured against the charge, which
tracked the statutory language establishing an injured party’s rebuttal
burden, the evidence here surpasses the low legal-sufficiency threshold.
As brief background, twenty-three-year-old Sarah Milburn
suffered quadriplegia paralysis after being clotheslined by the shoulder
strap of her seatbelt in a rollover collision while taking an Uber ride in
a 2011 Honda Odyssey. Sitting in the middle seat of the third row,
Milburn had pulled the ceiling-mounted belt across her body, attaching
it to the buckle at her left hip. But because the belt’s detachable anchor
was not connected to the minibuckle at her right hip, her lap was left
unrestrained. The following diagram depicts the configuration:

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

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

v. Ponte, 529 S.W.3d 447, 456 (Tex. 2017)).
31 City of Keller, 168 S.W.3d at 823.

11
Honda designed this system so that when the anchor is detached and
the belt has retracted into the ceiling, the seat may be folded down into
a recessed compartment in the floor pan, providing extra cargo space.
This design was incorporated into more than 800,000 Honda Odysseys
that were sold in the United States from 2011 through 2017. No one
disputes that Honda’s design complied with safety standard 208 of the
Federal Motor Vehicle Safety Standards (FMVSS 208), promulgated by
the National Highway Traffic Safety Administration (NHTSA).32
The evidence presented at trial is legally sufficient to support the
jury’s finding that FMVSS 208 was inadequate to protect the public from
unreasonable risks. First, the jury heard testimony that the seatbelt
design was unreasonably dangerous, which the Court agrees is “relevant
to the adequacy of the regulation allowing that design.”33 Milburn’s
human-factors expert, Joellen Gill, opined it was foreseeable that

32 See 49 C.F.R. § 571.208. Although Milburn does not dispute that
FMVSS 208 “applied to the Odyssey and w[as] complied with,” she challenges
whether the safety standard governed the alleged product risk, see supra
note 5, and was adequate to protect the public from unreasonable risks.
33 Ante at 27.

12
(1) owners would not reliably maintain the detachable seatbelt in the
anchored position, (2) a person sitting in the third-row middle seat
would not reliably use the seatbelt correctly, and (3) a passenger would
fail to recognize that they were not properly buckled.34 Milburn’s
engineering expert, Steven Meyer, discussed the importance of having a
lap restraint during a rollover collision to hold the passenger’s entire
lower torso in place. If the passenger is wearing only a shoulder belt
due to misuse by the vehicle owner or passenger, the seatbelt becomes
an injurious and potentially fatal device because it is dangerously close
to the passenger’s neck. A safer, feasible alternative design that should
have been used, Meyer opined, is an all-belts-to-seat design (also called
a seat-integrated belt system) that is anchored at the top and bottom of
the seat rather than the ceiling-mounted detachable belt design.35

34 Gill also opined that Honda failed to effectively mitigate these
hazards and that Milburn’s actions were consistent with foreseeable human
behavior. As a human-factors expert, Gill was qualified to testify about how
people would interact with the detachable seatbelt system without having
specialized experience in the automotive industry. See, e.g., Tyson Fresh
Meats, Inc. v. Abdi, No. 07-12-00546-CV, 2014 WL 2447472, at *3-4 (Tex.
App.—Amarillo May 28, 2014, pet. denied) (holding that the trial court did not
abuse its discretion by admitting testimony from a human-factors expert). And
to the extent Gill relied on usability studies conducted by Milburn’s counsel,
this did not render her testimony unreliable because the conditions in the
studies were “substantially similar” to those during the accident. See Fort
Worth & Denver Ry. v. Williams, 375 S.W.2d 279, 281-82 (Tex. 1964) (holding
that out-of-court experiments are generally admissible when there is “a
substantial similarity between conditions existing at the time of the occurrence
which gives rise to the litigation and those in existence at the time the
experiment is conducted for demonstration purposes”).
35 Honda argues there is no evidence of a safer, feasible alternative
design. The court of appeals sufficiently addressed this issue, and I find no
reversible error in its conclusion that Milburn “presented some evidence, and

13
Next, the jury heard testimony that FMVSS 208 is a “minimum
standard” that does not account for the detachable belt’s usability.36 As
Meyer explained, FMVSS 208 is the “bare minimum” that must be
complied with to legally sell a vehicle in the United States, and because
it “can only cover as much as [it] can cover,” “a lot of it is left to the
manufacturers.” Meyer confirmed that nothing in FMVSS 208
addresses the risk that Milburn faced on the night of the accident—the
risk that the belt would be improperly used with just the shoulder belt,
leaving the passenger’s lap unrestrained.
Although NHTSA expressly recognized that “detachable belts can
be misused,”37 the text and regulatory history discussed in the Federal
Register provide no express indication that the agency analyzed or
tested for the risk of misuse, as the Court acknowledges.38 The Court
instead simply surmises that NHTSA must have considered the safety

therefore legally sufficient evidence, to support the jury’s finding that the
[all-belts-to-seat] design is a safer alternative to the detachable anchor seat
belt design.” 668 S.W.3d 6, 26 (Tex. App.—Dallas 2021).
36 See 49 U.S.C. § 30102(10) (defining “motor vehicle safety standard”

as “a minimum standard for motor vehicle or motor vehicle equipment
performance”). Among other things, FMVSS 208 permits vehicle
manufacturers, for certain inboard seating positions, to use “a belt
incorporating a release mechanism that detaches both the lap and shoulder
portion at either the upper or lower anchorage point, but not both,” provided
that the means of detachment is “a key or key-like object.” 49 C.F.R. § 571.208.
37 Federal Motor Vehicle Safety Standards; Occupant Crash Protection,

69 Fed. Reg. 70904, 70908 (Dec. 8, 2004) (codified at 49 C.F.R. pts. 571, 585).
38 Ante at 22 (concluding that FMVSS 208 governs the risk of misusing

detachable seatbelts despite acknowledging that “the regulation itself does not
discuss the risk that people will not understand how to operate the detachable
system”).

14
risks of misuse in its cost–benefit analysis.39 On cross-examination,
Honda’s seatbelt expert, Michael Klima, also acknowledged that
FMVSS 208 neither “analyzes the risk that people won’t understand
how to operate” the detachable seatbelt system nor requires any type of
usability testing to determine whether people understand the
double-latch system. According to Klima, this type of testing is left to
the manufacturers to address however they deem fit.
Finally, the jury heard evidence that NHTSA’s rationale for
allowing the detachable seatbelt design was unsound. Meyer discussed
that in promulgating FMVSS 208, NHTSA drew upon comments from
automobile manufacturers to conclude that adopting a seat-integrated
belt design would have cost only an additional $15 per seat, which he
described as “not terribly expensive.”40 Although NHTSA found this
system “particularly problematic for removable seats because of the
added weight,”41 Meyer explained that “[t]he weight penalty in this case
would be irrelevant because it’s a folding seat.” Comparing the benefits
of not spending $15 for a seat-integrated system to the risks of neck
injuries, which are often “permanently debilitating” or “fatal,” Meyer
opined, “it’s grossly outweighed.”

39 Id. at 22-23.

40 See Federal Motor Vehicle Safety Standards; Occupant Crash
Protection, 69 Fed. Reg. at 70908 (concluding that the total cost for an
integrated belt would be approximately $47 while a detachable belt system
would cost approximately $32).
41 See id. (“[W]e have decided to expand the detachability provision to

the inboard seating position of folding seats . . . . We believe that integrated
belt designs are not an optimal design for all types of seats. They appear to be
particularly problematic for removable seats because of the added weight.”).

15
By the end of trial, the jury had heard evidence that
(1) FMVSS 208 is a minimum standard that allows manufacturers to
produce and sell an unreasonably dangerous detachable seatbelt, (2) the
standard does not adequately account for the risks associated with the
seatbelt design, and (3) the seatbelt was incorporated not only in the
vehicle at issue but also in more than 800,000 other vehicles sold to the
public on the open market. Acting in its fact-finding role, the jury could
credit this evidence over any contrary evidence in finding that
FMVSS 208 was inadequate to protect the public from unreasonable
risks of injury or damage. Because a reasonable jury could conclude that
FMVSS 208 was inadequate to protect the public, the balancing and
weighing of evidence is for the jury alone. The Court should not disturb
its verdict.
III
In a concurring opinion, JUSTICE BLACKLOCK explains that a
safety regulation’s adequacy to protect the public is a fact question
requiring jurors to exercise an “essentially political judgment” that
courts must not “second-guess” by imposing their “own value-laden
policy judgments.”42 Consistent with my discussion above, I
full-heartedly agree that “a jury’s disagreement with the agency’s
decision should be essentially unreviewable.”43 Where we diverge is on
what constitutes a “sufficient evidentiary predicate” for the jury to
exercise that judgment.44

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

43 Id. at 4.

44 Id. at 3.

16
The concurrence would require a “qualified regulatory expert” to
hold the jurors’ hands as they exercise their political judgment.45 Under
that view, a regulatory expert is necessary to explain the historical
context and the competing considerations and values an agency must
balance in promulgating a safety regulation.46 Such testimony may
undoubtedly be relevant and admissible either to show that a safety
regulation is inadequate to protect the public or as a controverting arrow
in a manufacturer’s quiver.47 But I cannot agree that a qualified
regulatory expert is always required to rebut the statutory presumption.
Jurors do not need a regulatory expert to tell them how to think,
process information, or exercise their political judgment. “Expert
testimony is required when an issue involves matters beyond jurors’
common understanding,”48 and individual judgment is certainly not
beyond an individual juror’s understanding. Jurors can second-guess a
federal agency’s decision without any particular type of expert
spoon-feeding them the historical context and considerations that
contributed to a promulgated regulation (to the extent such evidence is

45 Id. at 5.

46 Id.

47 Cf., e.g., Antrim Pharms. LLC v. Bio-Pharm, Inc., 950 F.3d 423,
430-31 (7th Cir. 2020) (“[C]ourts have permitted regulatory experts to testify
on complex statutory or regulatory frameworks when that testimony assists
the jury in understanding a party’s actions within that broader framework.”);
In re Fosamax Prods. Liab. Litig., 509 F. App’x 69, 72-73 (2d Cir. 2013) (relying
on a regulatory expert’s testimony to support a jury instruction regarding a
Florida statute’s analogous rebuttable presumption of nondefectiveness (citing
FLA. STAT. ANN. § 768.1256(1))).
48 Mack Trucks, Inc. v. Tamez, 206 S.W.3d 572, 583 (Tex. 2006).

17
even necessary for them to exercise the independent judgment the
statute contemplates).49
In this case, for example, Milburn’s expert Meyer, a licensed
lawyer as well as an engineer, testified that he had experience reviewing
the Federal Register, which NHTSA uses to provide notice of its
proposed rulemaking, solicit comments, and ultimately justify and
publish its regulations. On cross-examination, Meyer read into the
record and addressed portions of NHTSA’s published rationale for
adopting FMVSS 208.50 In so doing, Meyer described NHTSA’s role in
the federal government, acknowledged that anybody could submit
comments after a notice of proposed rulemaking,51 and discussed the
“history of the standard” as a response to “a congressional mandate
[Anton’s Law52] that the agency begin to phase in requirements for

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

in most design-defect cases, a costly endeavor for all involved. Mack Trucks,
206 S.W.3d at 583; Nissan Motor Co. v. Armstrong, 145 S.W.3d 131, 137 (Tex.
2004). Increasing costs by requiring another type of expert—for the sole
purpose of rebutting a statutory presumption—will only further impede
individuals from bringing potentially meritorious design-defect claims.
50 See Federal Motor Vehicle Safety Standards; Occupant Crash
Protection, 69 Fed. Reg. 70904, 70904-16 (Dec. 8, 2004) (codified at 49 C.F.R.
pts. 571, 585) (describing the background, summarizing public comments,
explaining the requirements of the final rule, conducting a cost–benefit
analysis, and adopting a final rule amending FMVSS 208).
51 See, e.g., Federal Motor Vehicle Safety Standards; Occupant Crash

Protection, 68 Fed. Reg. 46546, 46546-59 (proposed Aug. 6, 2003) (to be codified
at 49 C.F.R. pts. 571, 585) (describing background and safety concerns,
requesting comments, and proposing a rule amending FMVSS 208).
52 Anton’s Law (Improvement of Safety of Child Restraints in Passenger

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

18
lap/shoulder belts for all rear seating positions wherever practical.”53
And in reference to the Federal Register, Meyer confirmed for the jury
that NHTSA considered the following in adopting FMVSS 208:

 the possibility of requiring integrated belts;
 the cost of “strengthening both the seat and the floor pan” for
an integrated belt, which would be “approximately $47” while
“a detachable belt system would be $32”;
 “the additional weight added to a seat as a result of this
strengthening,” which would “make removability of the seats
impractical” according to some submitted comments, although
“[General Motors] noted that one of its vehicles has removable
seats with an integrated seat belt”;
 manufacturers appear to be moving away from removable
seats towards fold-down seats to provide additional
cargo-carrying capacity;
 “prohibiting detachability limits the effective use of the
cargo-carrying space” because “the shoulder belt would extend
from the upper anchorage down into the folded seat”; and
 the “possibility for misuse” of “only using the lap belt” could be
reduced by requiring a minibuckle with a “key or key-like
object to detach the belt,” although this addresses a “different
type of misuse” than only using the shoulder strap.54

In other words, the jury heard how NHTSA considered the
competing considerations of safety, cost, convenience, and practicality in

53 See Federal Motor Vehicle Safety Standards; Occupant Crash
Protection, 69 Fed. Reg. at 70904.
54 See id. at 70908-09.In this Court, Honda acknowledges that the “jury
could rely on NHTSA’s comments to the Final Rule amending FMVSS 208” as
evidence of what NHTSA considered and balanced “when promulgating
FMVSS 208” and that, although the relevant portion of the Federal Register
was not admitted into evidence, Meyer agreed on cross-examination “that
Honda’s counsel correctly read excerpts from the Final Rule to the jury.”

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declining to require a seat-integrated belt and allowing a detachable belt
for the middle seat of a vehicle’s third row. With this testimony and the
other trial evidence in mind, the jurors could make their own informed
judgment as to FMVSS 208’s adequacy to protect the public from
unreasonable risks: they knew “something about how the regulatory
process works” and had a “sense” of the “conflicting considerations and
competing values” that contributed to the regulation’s promulgation.55
In contrast to the concurrence, the Court implies that a regulatory
expert may not be necessary.56 Even so, its new requirements are no
less onerous. According to the Court, a jury’s inadequacy finding must
be supported by “a comprehensive review of the various factors and
tradeoffs NHTSA considered in adopting that safety standard.”57 The
Court does not demarcate when a jury’s review of relevant
considerations rises to the level of “comprehensive.”58 But in concluding
that Milburn’s evidence is legally insufficient, the Court instead nitpicks
about her expert’s failure to address granular considerations that the
Court presumes “would have affected NHTSA’s risk–benefit analysis.”59

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

56 Ante at 33 n.21.

57 Id. at 32-33.

58 The Court merely states that “considerably more evidence of the
various considerations . . . is required than Milburn presented.” Id. at 30.
59 See id. at 31 (emphasis added); see also id. at 30-32 (criticizing
Milburn for not addressing how NHTSA’s analysis would have been affected
by the lower occupancy rate in a rear center seat, the lack of reports or
statistics of misuse, or the expectations of whether a driver would have reliably
attached the detachable belt before transporting a passenger).

20
In effect, the Court requires that a plaintiff produce evidence
addressing all possible considerations that conceivably could affect a
federal agency’s analysis in adopting the safety regulation at issue. But
what the federal regulators considered is an entirely different question
from whether the adopted safety standard is, in the jury’s estimation,
inadequate to protect the public as a matter of fact. Federal regulators
could have considered everything they should have but still, at the end
of the day, got it wrong. The jury does not need to hear about the
regulatory process to conclude that compliance with the end product—a
minimum safety standard—was not enough to protect the public. And
although the Court pays lip service to leaving open the possibility that
a federal agency “simply got it wrong,”60 any such opening is illusory.
Requiring the jury to evaluate all possible considerations at varying
levels of granularity is nigh impossible—a herculean task to overcome.
Neither Section 82.008(b)(1)’s plain language nor our legal-sufficiency
standards require such a parsimonious approach.
Ultimately, a reviewing court must simply ask: was there a
sufficient evidentiary basis from which reasonable jurors could exercise
their political judgment to determine that a federal safety regulation
was inadequate to protect the public from unreasonable risks of injury
or damage? For all the reasons described above, the answer here is a
resounding yes.

60 Id. at 33 n.23.

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* * *
Under the language the Legislature enacted, a plaintiff seeking
to rebut the statutory presumption need only establish that the
applicable safety standard—whether rightly or wrongly adopted—was
inadequate as a matter of fact to protect the public from unreasonable
risks of injury or damage. Where text is clear, it is determinative, and
“[p]lain language disallows ad-libbing.”61 Forsaking this cardinal
principle, the Court engrafts onto Section 82.008(b)(1) an atextual and
heightened deference-to-the-agency standard for injured Texans to
rebut the nonliability presumption. Milburn should not be forced to
suffer the consequences of the Court’s deviation from the statutory text.
She proffered legally sufficient evidence to meet the statutory burden as
written, and the jury found in her favor.
But even if it were proper to overturn the jury’s verdict, justice
demands—at a minimum—that Milburn have a fair opportunity to
present evidence to satisfy the Court’s newly articulated standard for
rebutting the presumption.62 “The case for remand is especially
compelling in cases where, as here, [the Court has] substantially
clarified the law.”63 And the Court has previously done so when

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

(Tex. 2017).
62 See TEX. R. APP. P. 60.3 (“[T]he Supreme Court may, in the interest

of justice, remand the case to the trial court even if a rendition of judgment is
otherwise appropriate.”).
63 Rogers v. Bagley, 623 S.W.3d 343, 358 (Tex. 2021)); see, e.g., Carowest

Land, Ltd. v. City of New Braunfels, 615 S.W.3d 156, 159 (Tex. 2020) (holding
that substantial clarification of the law warranted remand); Hamrick v. Ward,

22
interpreting a “unique statutory provision”—like the one here—as a
matter of first impression.64 I cannot join the Court’s opinion or
judgment when the Court improperly rejects the jury’s verdict and rubs
salt in the wound by rendering, rather than remanding. I would respect
the jury’s verdict and affirm the court of appeals’ judgment, but failing
that, I would give Milburn a fair chance at securing recompense for
Honda’s business choices. Because the Court does otherwise, I must
respectfully dissent.

John P. Devine
Justice

OPINION FILED: June 28, 2024

446 S.W.3d 377, 385 (Tex. 2014) (observing remand is “particularly
appropriate” when the losing party may have presented their case differently).
64 See 20801, Inc. v. Parker, 249 S.W.3d 392, 394-96, 400 & n.5 (Tex.

2008) (remanding after interpreting “for the first time today” a “unique
statutory provision” because the plaintiff “could not have reasonably
anticipated the standard we announce today”); In re Doe 2, 19 S.W.3d 278, 283
(Tex. 2000) (noting that the rule for remand “is particularly well-suited to
situations such as this one, where courts must apply the requirements of a
unique or novel statutory scheme”); ante at 23-24 (noting that the
interpretation of this statutory provision is a matter of first impression); ante
at 3 (Blacklock, J., concurring) (acknowledging the statute’s unique and
unusual nature); see also Low v. Henry, 221 S.W.3d 609, 621 (Tex. 2007)
(remanding in the interest of justice to allow parties to present evidence
responsive to newly expressed guidelines for imposing sanctions under
Chapter 10 of the Civil Practice and Remedies Code); Transp. Ins. Co. v. Moriel,
879 S.W.2d 10, 26 (Tex. 1994) (remanding in the interest of justice because the
trial was conducted at a time when no opinion from this Court had specifically
addressed the standards governing the imposition of punitive damages in
bad-faith lawsuits and because the decision represented a “substantial
clarification” of the standard).

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