American Honda Motor Co., Inc. v. Sarah Milburn, John Milburn, and Carolyn Milburn

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
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

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