Filed 8/27/18




      IN THE SUPREME COURT OF CALIFORNIA


WILLIAM JAE KIM et al.,                )
                                       )
           Plaintiffs and Appellants,  )
                                       )                          S232754
           v.                          )
                                       )                    Ct.App. 2/7 B247672
TOYOTA MOTOR CORPORATION et al., )
                                       )                    Los Angeles County
           Defendants and Respondents. )                  Super. Ct. No. VC059206
_____________________________________ )



        Plaintiff William Jae Kim (Kim) was severely injured after he lost control
of his Toyota Tundra pickup truck and drove off an embankment. Together with
his wife, Kim brought this strict products liability suit against defendant Toyota
Motor Corporation and related entities (collectively, “Toyota”), claiming that the
pickup truck was defective because its standard configuration did not include a
particular safety feature, known as vehicle stability control (“VSC”), they claim
would have prevented the accident. At trial, the jury heard evidence that no
vehicle manufacturer at the time included VSC as standard equipment in pickup
trucks. The jury ultimately found in Toyota’s favor and the Court of Appeal
affirmed.
        The question before us is whether, as the courts below held, this kind of
evidence of industry custom and practice may be introduced in a strict products
liability action. The answer depends on the purpose for which the evidence is

                                              1
                              SEE CONCURRING OPINION
offered. Evidence that a manufacturer’s design conforms with industry custom
and practice is not relevant, and therefore not admissible, to show that the
manufacturer acted reasonably in adopting a challenged design and therefore
cannot be held liable; under strict products liability law, a product may contain
precisely the same safety features as other products on the market and still be
defective. But even though evidence of industry custom and practice cannot be
dispositive of the issue, it may nevertheless be relevant to the strict products
liability inquiry, including the jury’s evaluation of whether the product is as safely
designed as it should be, considering the feasibility and cost of alternative designs.
Because the evidence in this case was properly admitted for that limited purpose,
we affirm the judgment of the Court of Appeal.
                                          I.
       On a rainy day in April 2010, Kim was driving his 2005 Toyota Tundra
pickup truck through the mountains on the Angeles Forest Highway. Kim was
descending on a right-hand curve at approximately 45 to 50 miles per hour when,
he says, a vehicle coming from the opposite direction crossed into his lane. Kim
attempted a sequence of three steering maneuvers—a right steer, a left steer, and a
right steer—that resulted in Kim losing control of the vehicle. The truck ran off
the road and down the side of a cliff before it came to rest. Kim suffered serious
neck and spinal cord injuries that rendered him a quadriplegic.
       Kim, together with his wife, Hee Joon Kim, sued Toyota for his injuries,
asserting causes of action for strict products liability and loss of consortium.1 The
Kims alleged that VSC2 would have prevented Kim’s accident. In 2005, Toyota


1      The Kims also initially alleged negligence and breach of warranty, but
voluntarily dismissed those causes of action before trial.
2      VSC is also known as electronic stability control. For the sake of
consistency, this opinion uses the term VSC.

                                          2
offered VSC—then a relatively new technology—on the Tundra as part of an
optional package including various enhanced safety features. The Kims alleged
that VSC should instead have been made part of the Tundra’s standard equipment
and that the omission was a defect in the Tundra’s design.
       Before trial, the Kims filed a motion in limine asking the court to preclude
“any argument, evidence or testimony comparing the Toyota Tundra to
competitor’s vehicles and designs, and any evidence or argument that [Toyota’s]
design choices were not defective . . . because they were equivalent or superior to
those of its competitors.” During a hearing on the motion, however, counsel for
the Kims appeared to back away from the position that such evidence was
categorically inadmissible. Counsel instead took the view that evidence that
Toyota’s competitors did not make VSC standard equipment on their pickup
trucks would be admissible to explain why Toyota decided not to make VSC
standard equipment on the 2005 Toyota Tundra. According to counsel, the Kims
were not, in fact, seeking exclusion of this evidence, but rather a limiting
instruction advising that this evidence was being offered only “to explain why
[Toyota] did or didn’t do what they did under the risk benefit doctrine,” and not to
make out a defense to liability. The trial court denied the motion in limine but
informed the Kims that they were “welcome to prepare a limiting instruction that
[they would] like,” which would then be “litigate[d] at the appropriate time.”3
       At trial, the Kims argued that VSC would have prevented Kim’s accident
and that the benefits of including VSC on the 2005 Toyota Tundra outweighed the

3      The Kims also filed a motion in limine seeking to preclude “any argument,
evidence or testimony that compliance with Federal Motor Vehicle Safety
Standards (FMVSS) either (a) satisfies the manufacturer’s obligations in the
manufacture or design of the subject vehicle, (b) demonstrates the subject vehicle
was safe for its intended use, or (c) demonstrates a lack of defect in the subject
vehicle . . . .” The trial court also denied this motion in limine. The Kims neither
appealed the denial to the Court of Appeal nor sought our review of this issue.

                                          3
risks of its omission. The Kims presented expert testimony that VSC helps drivers
maintain control of their vehicle by sensing when the vehicle turns more or less
than driver’s steering wheel input—either causing the vehicle’s rear end to swing
out and the rear tires to slip or, alternatively, causing the vehicle to drift and the
front tires to slip—and applying a brake to either a front or back tire to counteract
the rotation and help the driver straighten out the vehicle. Two of the Kims’
expert witnesses opined that VSC would have prevented Kim from losing control
of his truck. A third expert witness estimated that the incremental cost to Toyota
of adding VSC to the 2005 Toyota Tundra would have been approximately $300
to $350 per vehicle.
       The Kims also called Sandy Lobenstein, Toyota’s product planning
manager, as an adverse witness. From Lobenstein they elicited testimony about
why Toyota decided against making VSC standard equipment on the 2005 Toyota
Tundra. Lobenstein testified that Toyota had included VSC on Lexus models in
the 1990s and made VSC standard equipment in some of its sport-utility vehicles
(“SUVs”) in 2001 and 2004. Lobenstein also testified that one of the Toyota
engineers had recommended that VSC be made standard equipment for the 2005
Toyota Tundra. But Lobenstein explained that Toyota was trying to “produce a
vehicle that met the customer’s needs based on price, based on future availability,
and at the time we felt like optional VSC was the best decision.” Lobenstein noted
that Toyota’s market research indicated that pickup truck consumers were price
sensitive and uninterested in VSC, and that none of Toyota’s competitors were
offering VSC as either standard or optional equipment on their 2005 pickup truck
models. The Kims relied on Lobenstein’s testimony to argue that Toyota knew
that pickup trucks have similar loss-of-control risks to SUVs, and therefore
required comparable safety equipment, but Toyota knowingly disregarded the



                                            4
safety risk because it saw no competitive advantage in including VSC as standard
equipment on pickup trucks.
       On cross-examination of Lobenstein, Toyota also elicited testimony about
Toyota’s decision to make VSC optional equipment on the 2005 Toyota Tundra.
Lobenstein reiterated his earlier testimony that no other manufacturer offered VSC
as standard equipment for their 2005 pickup truck models and the 2005 Toyota
Tundra was the first pickup truck to offer VSC as optional equipment. He
explained that the decision to offer VSC as optional equipment was consistent
with the industry practice of a “phase in,” whereby a manufacturer first offers
expensive, emerging technology as an option rather than as standard equipment.
       In its case, Toyota argued that the 2005 Toyota Tundra was already safe
without VSC and that VSC would not have averted Kim’s accident. Toyota
presented expert testimony that: (1) Kim caused the accident by driving above the
speed limit in poor driving conditions; (2) VSC could not have averted the
accident because VSC helps to steer the vehicle in the direction the steering wheel
is aimed, and Kim’s left steer would have aimed the car in the direction of the
embankment; and (3) the 2005 Toyota Tundra was already equipped with features
designed to prevent vehicle control problems.
       The jury was instructed on the so-called risk-benefit theory of strict
products liability, under which the jury must determine whether the product’s
design creates preventable danger that is excessive in relation to the advantages of
the design. (See Barker v. Lull Engineering Co. (1978) 20 Cal.3d 413, 430
(Barker).) The jury found that the 2005 Toyota Tundra did not have a design
defect, and the trial court entered a judgment in favor of Toyota. The Kims moved
for a new trial on multiple grounds, including the trial court’s denial of their
motion in limine to exclude evidence of industry custom and practice. The trial
court denied the motion.

                                           5
       On appeal, the Kims again challenged the trial court’s denial of their
motion in limine to exclude evidence of industry custom and practice. The Court
of Appeal rejected the challenge. In so doing, it identified tension between a line
of appellate decisions beginning with Titus v. Bethlehem Steel Corp. (1979) 91
Cal.App.3d 372, 381–382 (Titus), which have stated that such evidence is
irrelevant and inadmissible in a strict products liability action, and Howard v.
Omni Hotels Management Corp. (2012) 203 Cal.App.4th 403, 425–426 (Howard),
which held that evidence that the product complied with trade association industry
standards was an appropriate factor to consider in the risk-benefit analysis. The
Court of Appeal adopted what it termed a “middle ground” position under which
evidence of industry custom and practice may be relevant and admissible
depending “on the nature of the evidence and the purpose for which the party
seeking its admission offers the evidence.” Here, the Court of Appeal concluded
that the challenged evidence was relevant to both the Kims’ and Toyota’s theories
of how the jury should weigh the risks and benefits of the Toyota Tundra’s design,
and it therefore affirmed the trial court’s denial of the motion in limine. The Court
of Appeal rejected the Kims’ other claims of error, including their objection to the
admission of specific evidence concerning industry custom and practice, and
affirmed the judgment.4

4       The Court of Appeal also affirmed the trial court’s rejection of a proposed
jury instruction that would have advised the jury that it was “no defense” that the
Tundra’s design “met the standards of the motor vehicle industry at the time the
Tundra was produced, or that Toyota’s competitors sold vehicles that were no
safer than the Tundra, or had the same design defects, or lacked the same safety
equipment.” The Court of Appeal concluded this proposed instruction, as worded,
was “misleading, argumentative, and incomplete.” The Kims have again
attempted to defend their proposed jury instruction in their briefing to this court.
Although the concurring opinion does not disagree with the Court of Appeal’s
characterization of the Kims’ proposed instruction, it concludes that the trial court
“erred in declining to provide any limiting instruction.” (Conc. opn. of Dato, J.,


                                          6
       To resolve the tension among the Court of Appeal decisions, we granted
review limited to the following question: Did the trial court commit reversible
error in admitting, as relevant to the risk-benefit test for design defect, evidence of
industry custom and practice related to the alleged defect?
                                           II.
                                           A.
       In tort law, a manufacturer is liable “if a defect in the manufacture or design
of its product causes injury while the product is being used in a reasonably
foreseeable way.” (Soule v. General Motors Corp. (1994) 8 Cal.4th 548, 560
(Soule).) The manufacturer may be held strictly liable for such injuries without
regard to whether the manufacturer acted negligently in designing or
manufacturing the product. The doctrine of strict products liability “focusses not
on the conduct of the manufacturer but on the product itself, and holds the
manufacturer liable if the product was defective.” (Brown v. Superior Court
(1988) 44 Cal.3d 1049, 1056.)
       The existence of a design defect may be established according to one of two
alternative tests. (Barker, supra, 20 Cal.3d at pp. 429–430.) First, under the so-
called consumer expectations test, a design is defective “if the plaintiff
demonstrates that the product failed to perform as safely as an ordinary consumer
would expect when used in an intended or reasonably foreseeable manner.” (Id. at
p. 429.) Second, under the risk-benefit test articulated in Barker, a design is
defective “if through hindsight the jury determines that the product’s design
embodies ‘excessive preventable danger,’ or, in other words, if the jury finds that
the risk of danger inherent in the challenged design outweighs the benefits of such
design.” (Id. at p. 430.) The risk-benefit test requires the plaintiff to first

post, at pp. 5–6.) This issue falls outside the scope of our grant of review and we
do not address it.

                                            7
“demonstrate[] that the product’s design proximately caused his injury.” (Id. at
p. 432.) If the plaintiff makes this initial showing, the defendant must then
“establish, in light of the relevant factors, that, on balance, the benefits of the
challenged design outweigh the risk of danger inherent in such design.” (Ibid.) In
Barker, we set out a nonexhaustive list of factors (now generally referred to as the
“Barker factors”) relevant to the analysis: “the gravity of the danger posed by the
challenged design, the likelihood that such danger would occur, the mechanical
feasibility of a safer alternative design, the financial cost of an improved design,
and the adverse consequences to the product and to the consumer that would result
from an alternative design.” (Id. at p. 431.) This test, in short, subjects a
manufacturer to liability when “the design is not as safe as it should be—while
stopping short of making the manufacturer an insurer for all injuries which may
result from the use of its product.” (Id. at p. 432.)
       The issue before us concerns the admissibility of evidence of industry
custom and practice when a plaintiff alleges a design defect under the risk-benefit
test. By “industry custom and practice,” we refer to the use of the challenged
design within the relevant industry—“what is done”—as opposed to so-called
“ ‘state of the art’ ” evidence, which concerns “what can be done” under present
technological capacity. (Carter v. Massey-Ferguson, Inc. (5th Cir. 1983) 716 F.2d
344, 347 [distinguishing evidence of “industry custom” from evidence of the
“ ‘state of the art’ ”]; see McLaughlin v. Sikorsky Aircraft (1983) 148 Cal.App.3d
203, 209–210 (McLaughlin) [drawing same distinction]; see also Owen, Proof of
Product Defect (2004) 93 Ky. L.J. 1, 7, fn. 42 (Proof of Product Defect) [“Industry
‘custom,’ meaning prevailing use of technology, differs from the higher standard
of ‘state of the art,’ meaning the best technology reasonably available at the
time.”].) Our analysis begins from the premise that, “[e]xcept as otherwise
provided by statute, all relevant evidence is admissible.” (Evid. Code, § 351.)

                                            8
Relevant evidence is that which “ha[s] any tendency in reason to prove or disprove
any disputed fact that is of consequence to the determination of the action.” (Id.,
§ 210.) The critical question is whether evidence of industry custom and practice
has a tendency to prove or disprove any fact that is of consequence to the proper
weighing of the risks and benefits of the challenged design.
       A series of Court of Appeal opinions have taken the view that such
evidence is always irrelevant, and thus inadmissible, to the risk-benefit analysis.
This line of authority begins with Titus, supra, 91 Cal.App.3d at page 374, a strict
products liability action brought by a young boy who was injured while playing on
an oil well pumping unit. The plaintiff alleged that the manufacturer’s failure to
include a safety guard on the unit constituted a design defect. (Id. at p. 376.) The
jury found no defect. (Id. at p. 377.) On appeal, the court considered whether it
was reversible error for the trial court to refuse to provide a jury instruction
defining “defective product.” (Ibid.) The Court of Appeal concluded that it was,
noting that the jury had heard considerable evidence that “it was custom and
practice in the industry that manufacturers offered security guards as optional
equipment.” (Id. at p. 378.) Citing the pre-Barker case of Foglio v. Western Auto
Supply (1976) 56 Cal.App.3d 470, the court concluded that the jury should not
have heard this evidence because “custom and usage is not a defense to a cause of
action based on strict liability.” (Titus, at p. 378.) In the absence of a definition of
“defect,” the court concluded that “it is quite probable that [the jury] believed the
pump was not defective without safety features if it was customary to sell the
product without such equipment.” (Ibid.) The court further ruled that on retrial,
“evidence on custom and usage as it pertains to the optional sale of the
safeguards” would be inadmissible. (Id. at p. 382.)
       In Grimshaw v. Ford Motor Co. (1981) 119 Cal.App.3d 757 (Grimshaw),
the Court of Appeal held that compliance with standard industry practice is not an

                                           9
appropriate factor for consideration in the risk-benefit analysis. The plaintiffs in
Grimshaw, who had been severely injured when their Ford Pinto burst into flames
after being hit from behind by another vehicle, claimed that the Pinto’s fuel system
was defectively designed. (Id. at pp. 773–774.) The jury returned a verdict in
favor of the plaintiffs, and Ford appealed, arguing, inter alia, that the trial court
erred by rejecting its request to instruct the jury with the risk-benefit test. (Id. at
pp. 801–802.) The proposed instruction listed as a “ ‘relevant factor[]’ ” for the
jury’s consideration “ ‘the extent to which its [the Ford Pinto’s] design and
manufacture matched the average quality of other automobiles and the extent to
which its design and manufacture deviated from the norm for automobiles
designed and manufactured at the same point in time.’ ” (Id. at p. 803.) The Court
of Appeal upheld the trial court’s refusal to give this instruction. (Id. at pp. 802–
803.) Relying on Titus and Foglio, the court explained that “[i]n a strict products
liability case, industry custom or usage is irrelevant to the issue of defect.” (Id. at
p. 803.) The court observed that Barker had not listed industry custom and
practice in its enumeration of relevant factors under the risk-benefit test. (Ibid.)
What is more, the court found that Barker’s reasoning implies that such evidence
is an “inappropriate consideration[]” insofar as Barker distinguished strict liability
claims from negligence claims on the ground that the former directs the jury’s
attention to “ ‘the condition of the product itself, and not to the reasonableness of
the manufacturer’s conduct.’ ” (Ibid., quoting Barker, supra, 20 Cal.3d at p. 434.)
       Finally, in Buell-Wilson v. Ford Motor Co. (2006) 141 Cal.App.4th 525,
545 (Buell-Wilson), the Court of Appeal affirmed the trial court’s exclusion of
statistical evidence comparing the rollover rate of the defendant’s vehicle to other
vehicles because “the Barker risk/benefit analysis does not allow admission of
such [industry custom] evidence . . . .” Other Courts of Appeal have assumed,
without deciding, that this states the governing rule. (See McLaughlin, supra, 148

                                           10
Cal.App.3d at p. 210 [recognizing “rule, not involved in this case, that evidence of
industry custom and usage is irrelevant in a products liability case,” but ruling that
evidence that design comported with the state of the art is admissible as relevant to
the risk-benefit balancing].)
       By contrast, the Court of Appeal in Howard, supra, 203 Cal.App.4th at
page 426, held that at least some evidence of industry custom and practice is
relevant under the risk-benefit test and therefore admissible. In that case, the
plaintiff was injured when he slipped in a hotel bathtub. (Id. at p. 411.) He sued,
alleging the bathtub was defectively designed because its antislip coating did not
comply with “ ‘applicable standards.’ ” (Id. at p. 412, italics omitted.) The
manufacturer countered that the coating complied with technical standards
promulgated by trade associations. (Ibid.) In affirming the grant of summary
judgment to the bathtub manufacturer on this claim, the court held that the bathtub
manufacturer’s “reliance on industry standards is a factor to be legitimately
considered . . . .” (Id. at p. 425.) The Court of Appeal in Howard explained:
“When the plaintiff alleges strict product liability/design defect, any evidence of
compliance with industry standards, while not a complete defense, is not
‘irrelevant,’ but instead properly should be taken into account through expert
testimony as part of the design defect balancing process.” (Id. at p. 426.)
Therefore, “expert evidence about compliance with industry standards can be
considered on the issue of defective design, in light of all other relevant
circumstances, even if such compliance is not a complete defense.” (Ibid.)
       In upholding the trial court’s denial of the motion in limine in this case, the
Court of Appeal staked out what it described as a “middle ground,” under which
“evidence of industry custom and practice may be relevant and, in the discretion of
the trial court, admissible in a strict products liability action, depending on the
nature of the evidence and the purpose for which the party seeking its admission

                                          11
offers the evidence.” The Court of Appeal reasoned that “[i]ndustry custom may
reflect legitimate, independent research and practical experience regarding the
appropriate balance of product safety, cost, and functionality,” and the possibility
that industry custom might not reflect such considerations or strike the appropriate
balance “does not make the evidence inadmissible.” The Court of Appeal also
noted that “[e]vidence of industry custom also may be relevant to the feasibility of
a safer alternative design, and to the consequences that would result from an
alternative design, two of the Barker risk-benefit factors.” In sum, evidence of the
manufacturer’s compliance or noncompliance with industry custom and practice
“may be relevant . . . in determining whether a product embodies excessive
preventable danger, which is the ultimate question under the risk-benefit test.”
                                          B.
       What the Court of Appeal described as a “middle ground” between these
lines of authority is perhaps more accurately described as an extension of Howard.
But the ground the Court of Appeal staked out is, in all events, solid.
       The central insight of the Titus/Grimshaw line of cases is that compliance
or noncompliance with industry custom and practice is not an element of strict
products liability. Strict products liability, unlike negligence doctrine, focuses on
the nature of the product, and not the nature of the manufacturer’s conduct.
(Barker, supra, 20 Cal.3d at p. 434.) This means that the fact “the manufacturer
took reasonable precautions in an attempt to design a safe product or otherwise
acted as a reasonably prudent manufacturer would have under the circumstances”
does not preclude a finding of design defect for which the manufacturer may be
held strictly liable. (Ibid.) The issue, therefore, is not whether the manufacturer
complied with a standard of care, as measured by prevailing industry standards,
but instead whether “there is something ‘wrong’ with a product’s design—either



                                         12
because the product fails to meet ordinary consumer expectations as to safety or
because, on balance, the design is not as safe as it should be . . . .” (Id. at p. 432.)
       Without calling this basic insight into question, the court in Howard
correctly observed that evidence of industry custom and practice sometimes does
shed light not just on the reasonableness of the manufacturer’s conduct in
designing a product, but on the adequacy of the design itself. Barker’s risk-benefit
test calls on juries to consider whether a design is safe enough, given “the relative
complexity of design decisions and the trade-offs that are frequently required in
the adoption of alternative designs.” (Barker, supra, 20 Cal.3d at p. 418.)
Depending on the circumstances, evidence of other manufacturers’ design
decisions may aid the jury’s understanding of these complexities and trade-offs,
and thus may provide some assistance in determining whether the manufacturer
has balanced the relevant considerations correctly. (See Howard, supra, 203
Cal.App.4th at p. 426; cf. Soule, supra, 8 Cal.4th at p. 567, fn. 4 [under Barker,
“juries receive expert advice, apply clear guidelines, and decide accordingly
whether the product’s design is an acceptable compromise of competing
considerations”].)
       Notably, the Kims do not dispute that “[e]vidence of technical standards . . .
may legitimately be cited as evidence of industry research or experience in
balancing safety, feasibility, cost and functionality,” at least depending on the
quality of the research and testing underlying development of the standards. They
also concede that what they call “industry experience” evidence is relevant to the
inquiry—that is, evidence that “competitors tried to produce a safer alternative
design but the design malfunctioned, imposed unsustainable costs, or made the
product less efficient.” They acknowledge that such evidence would be relevant
to the jury’s consideration of the feasibility of a safer alternative design and the



                                           13
adverse consequences of adopting an alternative design, two of the factors laid out
in Barker.
       The Kims’ objection instead centers on what they refer to as “[t]rue
industry custom evidence”: “evidence that ‘nobody does it,’ that ‘every body does
it,’ or that the defendant’s product is no more dangerous than others on the
market.” It is that sort of evidence that cases like Titus and Grimshaw held
inadmissible, they argue, and for good reason, because it is “indistinguishable
from standard-of-care evidence.” Such evidence, the Kims reason, “guarantees
that jurors will be distracted from the details of feasibility, cost and relative safety
to a ‘reasonable manufacturer’ standard, allowing defendants to successfully argue
that the product must be safe because ‘everybody does it.’ ”
       We agree with the Court of Appeal that this category of evidence may,
depending on the circumstances, be admissible. It is not clear why we would
cordon off this category of evidence from, for example, the category of industry
standards promulgated by trade associations, which the Kims regard as acceptable.
“After all,” as the Court of Appeal noted, “trade associations consist of
manufacturers and other businesses whose conduct comprises the industry custom
and practice.” And more to the point, such industry custom and practice evidence
may be relevant in a strict liability design defect case—even if not dispositive—
for much the same reason as industry standards evidence: because it illuminates
“the relative complexity of design decisions and the trade-offs that are frequently
required in the adoption of alternative designs.” (Barker, supra, 20 Cal.3d at
p. 418.) Perhaps the best illustration of this point is the fact that the Kims
themselves introduced precisely this sort of evidence at trial in an effort to bolster
their argument that Toyota designed the Tundra without standard VSC because it
valued profits over safety. Although Toyota’s actual reasons for designing the
Tundra as it did are not dispositive of the ultimate question whether, objectively

                                           14
speaking, the Tundra was designed as safely as it should have been, the Kims do
not (and could not) dispute that the evidence was relevant to the jury’s
consideration of the issue.
       In what may be a more common scenario, plaintiffs might legitimately seek
to inform the jury that the defendant has not implemented a safety feature that is
standard in the industry. Here, the Kims made this sort of claim when they
introduced evidence that all major auto manufacturers, including Toyota, equipped
SUVs with standard VSC, and asked the jury to infer from relevant similarities
between SUVs and pickup trucks that VSC should have been made standard on
the 2005 Tundra as well. Again, such evidence could not be dispositive; perhaps
other manufacturers have chosen, for whatever reason, to incur unnecessary costs
for miniscule safety gains, or perhaps the unique design of the defendant’s product
makes the industry-standard feature redundant. But plaintiffs would surely be
within their rights in asking the jury to make the comparison and to draw
reasonable inferences from the widespread adoption of a safety feature missing
from the defendant’s product.
       By the same token, a defendant might point to the fact that a particular
safety feature is not standard in the industry as some evidence of whether the
challenged design embodies excess preventable danger under Barker. The
probative value of such evidence may well vary from case to case, and in some
cases the relationship between industry design practices and consideration of the
Barker factors may be sufficiently attenuated to warrant exclusion of the evidence.
But in cases such as this one, competing manufacturers’ independent design
decisions may reflect their own research or experience in balancing safety, cost,
and functionality, and thus shed some light on the appropriate balance of safety
risks and benefits in much the same manner as evidence of industry-wide technical



                                         15
standards.5 Again, such evidence cannot be dispositive; perhaps the entire
industry has “unduly lagged” in adopting feasible safety technologies. (The T. J.
Hooper (2d Cir. 1932) 60 F.2d 737, 740.) But although counsel may argue that
industry standards “can and should be more stringent,” “[e]vidence that all product
designers in the industry balance the competing factors in a particular way clearly
is relevant to the issue before the jury.” (Back v. Wickes Corp. (1978) 375 Mass.
633, 642–643.)
       Some of the older cases raised concerns that permitting juries to hear such
evidence would subvert the distinction between strict liability and negligence.
(E.g., Buell-Wilson, supra, 141 Cal.App.4th at p. 545; Grimshaw, supra, 119
Cal.App.3d at p. 803.) But as Barker recognizes, the risk-benefit balancing does

5       In so concluding, we join the majority of states that have permitted the
admission of evidence of industry custom and practice as relevant to, but not
dispositive of, the existence of design defect under risk-benefit balancing tests
similar to ours. (See Proof of Product Defect, supra, 93 Ky. L.J. at pp. 9–10; see
also, e.g., Back v. Wickes Corp., supra, 375 Mass. at pp. 642–643; Wash. Rev.
Code Ann. § 7.72.050(1) [“Evidence of custom in the product seller’s industry,
technological feasibility or that the product was or was not, in compliance with
nongovernmental standards or with legislative regulatory standards or
administrative regulatory standards, whether relating to design, construction or
performance of the product or to warnings or instructions as to its use may be
considered by the trier of fact.”]; but see, e.g., Lewis v. Coffing Hoist Div., Duff-
Norton (1987) 515 Pa. 334, 343 [concluding that industry custom and practice
evidence is irrelevant and therefore inadmissible in a strict products liability
action].)
        Our conclusion is also consistent with the general approach taken in the
Restatement, whose commentary states: “When a defendant demonstrates that its
product design was the safest in use at the time of sale, it may be difficult for the
plaintiff to prove that an alternative design could have been practically adopted.
The defendant is thus allowed to introduce evidence with regard to industry
practice that bears on whether an alternative design was practicable. Industry
practice may also be relevant to whether the omission of an alternative design
rendered the product not reasonably safe. While such evidence is admissible, it is
not necessarily dispositive.” (Rest.3d Torts, Products Liability, § 2, com. d, p. 20.)


                                         16
in some ways resemble a traditional negligence inquiry, and “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—are similar to issues typically presented in a negligent
design case . . . .” (Barker, supra, 20 Cal.3d at p. 431; see id. at p. 434 [“It is true,
of course, that in many cases proof that a product is defective in design may also
demonstrate that the manufacturer was negligent in choosing such a design.”]; cf.
Pike v. Frank G. Hough Co. (1970) 2 Cal.3d 465, 470 [explaining the test for
negligent design is “a balancing of the likelihood of harm to be expected from a
machine with a given design and the gravity of harm if it happens against the
burden of the precaution which would be effective to avoid the harm”].) The
pertinent difference between the two inquiries, Barker explained, is that strict
liability marshals this evidence to illuminate the condition of the product, rather
than the reasonableness of the manufacturer’s conduct. (Barker, supra, 20 Cal.3d
at p. 434.) And as noted, evidence of industry custom and practice can shed some
light on the condition of the challenged product, as opposed to the reasonableness
of the manufacturer’s conduct. To admit industry custom and practice evidence
for this limited purpose pays proper respect to the distinct doctrine of strict
products liability.
       We are unpersuaded that permitting a defendant to introduce relevant
evidence of industry custom and practice will, as the Kims argue, impair strict
liability’s goal of “reliev[ing] an injured plaintiff of many of the onerous
evidentiary burdens inherent in a negligence cause of action.” (Barker, supra, 20
Cal.3d at p. 431.) To ease the burden on plaintiffs in a strict liability action, in
Barker we assigned to the defendant the burden of demonstrating that the benefits
of the challenged design outweigh its risks. (Id. at p. 432.) Permitting a defendant
to introduce evidence of industry custom and practice does not alter the nature of

                                           17
that burden, nor does such evidence automatically discharge the burden. In any
event, the rule is a two-way street: a plaintiff can similarly rely on industry
custom and practice to bolster its own argument, as the Kims sought to do at trial
in this case.
       We stress that while industry custom and practice evidence is not
categorically inadmissible, neither is it categorically admissible; its admissibility
will depend on application of the ordinary rules of evidence in the circumstances
of the case. The Court of Appeal opinion provides appropriate guidance for
conducting this inquiry, and we adopt the court’s approach. First, the party
seeking admission of such evidence must establish its relevance to at least one of
the elements of the risk-benefit test, either causation or the Barker factors. (Evid.
Code, § 351.) The evidence is relevant to the Barker inquiry if it sheds light on
whether, objectively speaking, the product was designed as safely as it should
have been, given “the complexity of, and trade-offs implicit in, the design
process.” (Barker, supra, 20 Cal.3d p. 432.) Whether the evidence serves this
purpose depends on whether, under the circumstances of the case, it is reasonable
to conclude that other manufacturers’ choices do, as the Court of Appeal put it,
“reflect legitimate, independent research and practical experience regarding the
appropriate balance of product safety, cost, and functionality.” If the proponent of
the evidence establishes a sufficient basis for drawing such a conclusion, the
evidence is admissible, even though one side or the other may argue it is entitled
to little weight because industry participants have weighed the relevant
considerations incorrectly. The evidence may not, however, be introduced simply
for the purpose of showing the manufacturer was acting no worse than its
competitors.
       Next, even if the party seeking admission of such evidence meets this
threshold burden, the trial court retains the discretion to exclude this evidence if

                                          18
“its probative value is substantially outweighed by the probability that its
admission will” either “necessitate undue consumption of time” or “create
substantial danger of undue prejudice, of confusing the issues, or of misleading the
jury.” (Evid. Code, § 352.) And finally, if the party opposing admission of this
evidence makes a timely request, the trial court must issue a jury instruction that
explains how this evidence may and may not be considered under the risk-benefit
test. (Evid. Code, § 355 [“When evidence is admissible as to one party or for one
purpose and is inadmissible as to another party or for another purpose, the court
upon request shall restrict the evidence to its proper scope and instruct the jury
accordingly.”].)6
                                         III.
       Because industry custom and practice evidence can shed light on the
appropriate inquiry under the risk-benefit test, the trial court was correct to deny
the Kims’ motion in limine seeking to exclude all evidence of industry custom and
practice in this case. The court was likewise correct to admit the challenged
evidence at trial. As noted, the Kims themselves introduced what they refer to as
“[t]rue industry custom evidence”: the fact that none of Toyota’s competitors
offered VSC as either standard or optional equipment on the 2005 models of their
pickup trucks. Lobenstein testified to this point during both direct examination by
the Kims and cross-examination by Toyota. The Kims contended that evidence of
industry custom was relevant to the risk-benefit analysis because it demonstrated
Toyota’s actual weighing of the risks and benefits of the 2005 Toyota Tundra’s
design. The Kims argued to the jury that because Toyota knew that pickup trucks


6      We disapprove Titus v. Bethlehem Steel Corp. (1979) 91 Cal.App.3d 372,
Grimshaw v. Ford Motor Co. (1981) 119 Cal.App.3d 757, and Buell-Wilson v.
Ford Motor Co. (2006) 141 Cal.App.4th 525, insofar as they are inconsistent with
the views expressed in this opinion.

                                          19
have similar loss-of-control risks to SUVs, which were equipped with VSC as
standard equipment, Toyota knowingly disregarded these loss-of-control risks in
the pickup trucks because Toyota saw no competitive advantage in including VSC
as standard equipment in their pickup trucks. The Kims therefore used the
evidence of industry custom to establish that Toyota’s decision not to make VSC
standard equipment was unrelated to legitimate design considerations.
       The Kims argue that the trial court erred in admitting this evidence. But
having elicited the evidence themselves, the Kims are hardly in a position to object
to its admission. (E.g., Gjurich v. Fieg (1913) 164 Cal. 429, 433; see also People
v. Williams (1988) 44 Cal.3d 883, 912 [“It is axiomatic that a party who himself
offers inadmissible evidence is estopped to assert error in regard thereto.”].) In
any event, as noted, the evidence was relevant, and therefore admissible in the
Kims’ case, insofar as it illuminated the decisionmaking process that resulted in
the Tundra’s design.
       On cross-examination, Toyota elicited the same information from
Lobenstein, as well as testimony regarding the industry practice of phasing new
safety technologies into vehicles on the market. The Kims did not object to this
line of questioning, and even if they had, the questioning was not objectionable:
In response to questions raised by the Kims concerning Toyota’s decisionmaking
process, Toyota elicited additional evidence to explain how Toyota decides
whether and when to implement emerging safety technologies. In so doing, it
shed light on “the relative complexity of design decisions and the trade-offs that
are frequently required in the adoption of alternative designs.” (Barker, supra, 20
Cal.3d at p. 418.) We agree with the Court of Appeal that even if the Kims had
not first put Toyota’s decisionmaking process at issue, “testimony about how new
safety technologies evolve and are phased in to vehicles in general, first as an



                                         20
option and then as standard equipment, is relevant to the risk-benefit analysis . . .”
and thus admissible.
       Toyota also argues that the challenged evidence was admissible to shed
light on the safety of its design, absent standard VSC. Toyota argues in particular
that the jury was entitled to consider that the Kims’ theory that the 2005 Toyota
Tundra contained a design defect “meant that every 2005 pickup was defective.”
And indeed, Toyota asked the jury to do just that, arguing in closing argument that
“[n]ot a single pickup on the market in model year 2005 or ’6 had standard VSC.
And if the position of the plaintiffs is that every vehicle or every pickup that didn’t
have VSC in 2005 was defective, then we sure have a lot of ticking time bombs
out there.”
       The Court of Appeal criticized this theory, calling it “a prime example” of
when industry custom and practice would not be relevant. A manufacturer’s
compliance with industry custom, the court explained, “does not tend to prove the
product is not dangerous: All manufacturers may be producing an unsafe
product.” The premise is correct, but the conclusion is somewhat overstated. The
Court of Appeal was, of course, right to note that a manufacturer’s compliance
with industry custom does not, without more, prove that a product is not
dangerous. But as explained above, evidence of industry custom and practice
may, in some cases, illuminate whether the product embodies excess preventable
danger, given the trade-offs between competing design choices. Here, other
evidence before the jury revealed the role that safety considerations play in the
development of new vehicle designs in the automotive industry. The challenged
industry practice evidence was admissible to shed light on the safety of the
Tundra’s design, absent standard VSC.
       Once again, whether a manufacturer’s product is as safe as or safer than any
product on the market is not the question in a strict products liability case. But a

                                          21
jury may, in appropriate cases, consider such evidence, just as it may consider
whether the manufacturer has complied with industry technical standards, in
evaluating whether, on balance, the design is defective.
                                        IV.
       We affirm the judgment of the Court of Appeal.


                                                 KRUGER, J.


WE CONCUR:

CANTIL-SAKAUYE, C. J.
CHIN, J.
CORRIGAN, J.
CUÉLLAR, J.




                                        22
                       CONCURRING OPINION BY DATO, J.


       The answer you receive often depends on how you ask the question. Here, the

majority opinion broadly frames the issue before the court as whether industry custom-

and-practice evidence may be introduced in a strict products liability action. The answer,

we learn, “depends on the purpose for which the evidence is offered.” (Maj. opn. ante, at

pp. 1−2.) As a statement of principle, this conclusion is unassailable, if a bit opaque.

The devil is in the details, and the critical question becomes for what purposes is such

evidence admissible, and for what purposes is it not?

       Even before this court’s seminal design defect decision in Barker v. Lull

Engineering Co. (1978) 20 Cal.3d 413 (Barker), the central question presented by this

appeal was consistently characterized in narrower terms: Is evidence of compliance with

industry custom and practice admissible in a strict products liability action when offered

by the defendant to show that the product was not defective in design? And until

relatively recently, the consistent answer from the Courts of Appeal to this narrower

question was, “No.” Since the pre-Barker decision in Foglio v. Western Auto Supply

(1976) 56 Cal.App.3d 470, 477, California has followed a uniform and easily understood

general rule: Industry custom-and-practice evidence is typically inadmissible in a design



                                                 1
defect products liability action when offered by a defendant to show that the product was

not defective. (See Titus v. Bethlehem Steel Corp. (1979) 91 Cal.App.3d 372, 381–382;

Grimshaw v. Ford Motor Co. (1981) 119 Cal.App.3d 757, 802–803; Buell-Wilson v. Ford

Motor Co. (2006) 141 Cal.App.4th 525, 545.) There is nothing wrong with this general

rule. As the majority opinion acknowledges, the proper focus of a design defect case is

the condition of the product, not the reasonableness of the manufacturer's conduct.

(Barker, supra, 20 Cal.3d at p. 434.) The fact that “everyone else is doing it” the same

way may suggest that the manufacturer’s behavior was in some sense reasonable, but it

says nothing about whether “the risk of danger inherent in the challenged [product]

design outweighs the benefits of such design.” (Id. at p. 430.) What “everyone else is

doing” is not relevant to whether a product can be designed better, and it invites jurors to

inadvertently conflate the condition of the product with the behavior of the manufacturer.

                                             A

       Based in part on the broad phrasing of the question, the majority opinion

cautiously retreats from what was heretofore a largely consistent general rule. In

markedly qualified language we are instructed that now, industry custom-and-practice

evidence offered by a defendant in a design defect case “may, depending on the

circumstances, be admissible.” (Maj. opn. ante, at p. 14, italics added.) “In some cases,”

we are told, “evidence of industry custom and practice can aid the jury’s understanding of

[the] complexities and trade-offs” inherent in product design decisions “and thus may

provide some assistance in determining whether the manufacturer has balanced the

relevant considerations correctly.” (Maj. opn. ante, at p. 13, italics added.) Which cases?


                                             2
The ones where “competing manufacturers’ independent design decisions [i.e., custom-

and-practice evidence] may reflect their own research or experience in balancing safety,

cost, and functionality, and thus shed some light on the appropriate balance of safety risks

and benefits . . . .” (Maj. opn. ante, at p. 15, italics added; see also maj. opn. ante, at

p. 21.)

          The majority opinion appears to endorse admission of a defendant's industry

custom-and-practice evidence as a proxy for the foundational risks and benefits that a

manufacturer should be evaluating in making product design decisions. That is a little

like permitting evidence that an allegedly defective product received a J.D. Power award

or the Good Housekeeping Seal of Approval—without anyone testifying about the

criteria for that particular honor—because awards of this type may reflect a reasonable

balancing of safety risks and benefits. Jurors should not be left to guess.

          Evidence of the foundational risks and benefits is always relevant in a products

liability case alleging design defect based on Barker’s risk-benefit analysis, where the

burden is on the defendant manufacturer to prove that “the benefits of the challenged

design outweigh the risk of danger inherent in such design.” (Barker, supra, 20 Cal.3d at

p. 432.) But without the underlying analysis, a manufacturer’s decision to produce a

product in a particular way based on a particular design is merely a conclusion. Only if a

manufacturer's design decision is based on an appropriate balancing of risks and benefits




                                               3
does the conclusion have some relevance to the defendant’s burden.1 It is the basis for

the design decision that the jury must analyze. To admit the conclusion (the industry

custom-and-practice evidence) before the foundational evidence establishing that the

appropriate risks and benefits were balanced would be pure speculation.

                                              B

       The majority opinion acknowledges this cart-before-the-horse problem when it

warns that industry custom-and-practice evidence is not “categorically admissible.”

(Maj. opn. ante, at p. 18.) In deciding if the evidence is admissible, trial court judges will

be charged with determining “whether, under the circumstances of the case, it is

reasonable to conclude that other manufacturers’ choices do, as the Court of Appeal put

it, ‘reflect legitimate, independent research and practical experience regarding the

appropriate balance of product safety, cost, and functionality.’ ” (Maj. opn. ante, at

p. 18.) In other words, unless the defendant can establish that the other manufacturers’

design choices actually represented a balancing of the appropriate factors, the industry




       1       It is no answer to cite the virtue of a “two-way street” in suggesting that
defendants should be allowed to introduce evidence of compliance with industry custom
and practice because plaintiffs can similarly offer evidence of noncompliance. (Maj. opn.
ante, at p. 18; see also id. at p. 15.) As the majority opinion elsewhere acknowledges in a
different context (maj. opn. ante, at p. 19), the same evidence may be admissible for one
purpose but inadmissible for another. (See Evid. Code, § 355 [evidence may be
admissible as to one party or for one purpose but inadmissible as to another party or for
another purpose].) Evidence of noncompliance with custom and practice is admissible to
show the technological and practical feasibility of an alternative design, whereas
evidence of compliance cannot prove a negative—that the design was not defective.


                                              4
custom-and-practice evidence is not relevant to any disputed issue and does not come in.

Trial judges are thus charged with an important gatekeeping role.

       If the trial court ultimately concludes that the proffered design decisions of other

manufacturers actually represented a balancing of the appropriate risks and benefits such

that the evidence is admissible, the jury should be instructed on how the evidence cannot

be used. In substance, jurors should be told that in determining whether the product is

defective in design, the burden is on the defendant to prove that the benefits of the

challenged design outweigh the risks. Attempting to meet this burden, the defendant has

introduced evidence of how other manufacturers designed similar products. This

evidence has been received for the limited purpose of evaluating whether the relevant

risks and benefits were appropriately balanced. A product can still be defective in design

even if the manufacturer acted no differently than any other reasonable manufacturer, and

you cannot consider the conduct of other manufacturers for the purpose of showing there

was no design defect.

                                              C

       In the case before us, the evidence of industry custom and practice was offered in

the first instance by the plaintiffs, who disavowed any objection. I agree that under these

circumstances, the trial court did not err in admitting such evidence. (Maj. opn. ante, at

pp. 19–20.) But, as the majority opinion suggests (maj. opn. ante, at p. 19), the jury

should have been given a limiting instruction. Plaintiffs proposed a series of special jury

instructions that would have highlighted the limited relevance of such evidence. (Maj.

opn. ante, at p. 3.) Without indicating that the trial court was obligated to accept the


                                              5
particular language proposed by plaintiffs, I would hold that the court erred in declining

to provide any limiting instruction.

       For several reasons, however, I am not persuaded it is reasonably probable that a

limiting instruction in this case would have resulted in a more favorable verdict for

plaintiffs. (See Soule v. General Motors Corp. (1994) 8 Cal.4th 548, 574, quoting People

v. Watson (1956) 46 Cal.2d 818, 835.) First, the custom-and-practice evidence was

largely elicited by plaintiffs to show that competitive advantage led to Toyota’s decision

to offer vehicle stability control solely as an optional safety feature. Second, after the

trial court declined plaintiffs’ proposed special instructions, referring to them as “all

argument,” plaintiffs’ counsel failed to identify during closing argument the specific

limited purpose for which custom-and-practice evidence could be considered. Third,

although it was mentioned in Toyota’s closing argument, industry custom and practice

was not defense counsel’s principal focus. Rather, the vast majority of closing argument

on both sides focused on causation, suggesting that a proper limiting instruction was

unlikely to result in a different outcome for plaintiffs.




                                               6
       Because the instructional error was harmless, I concur with today’s affirmance of

the Court of Appeal’s judgment.




                                                    DATO, J.*


   I CONCUR:

   LIU, J.




       * Associate Justice of the Court of Appeal, Fourth Appellate District, Division
One, assigned by the Chief Justice pursuant to article VI, section 6, of the California
Constitution.

                                             7
See next page for addresses and telephone numbers for counsel who argued in Supreme Court.

Name of Opinion Kim v. Toyota Motor Corporation
__________________________________________________________________________________

Unpublished Opinion
Original Appeal
Original Proceeding
Review Granted XXX 243 Cal.App.4th 1366
Rehearing Granted

__________________________________________________________________________________

Opinion No. S232754
Date Filed: August 27, 2018
__________________________________________________________________________________

Court: Superior
County: Los Angeles
Judge: Raul A. Sahagun

__________________________________________________________________________________

Counsel:

Law Offices of Ian Herzog, Herzog, Yuhas, Ehrlich & Ardell, Ian Herzog; Thomas F. Yuhas and Evan D.
Marshall for Plaintiffs and Appellants.

RoganLehrman, Patrick Rogan, Daniel R. Villegas; Bowman and Brooke, David P. Stone; Bingham
McCutchen, Morgan, Lewis & Bockius, Robert A. Brundage and Nicolette L. Young for Defendants and
Respondents.

Horvitz & Levy, Lisa Perrochet, John A. Taylor, Jr., and Emily V. Cuatto for Alliance of Automobile
Manufacturers as Amicus Curiae on behalf of Defendants and Respondents.

Fred J. Hiestand; Erika C. Frank and Heather L. Wallace for California Chamber of Commerce and the
Civil Justice Association of California as Amici Curiae on behalf of Defendants and Respondents.

Dykema Gossett, John M. Thomas and Ashley R. Fickel for The Product Liability Advisory Council, Inc.,
as Amicus Curiae on behalf of Defendants and Respondents.

Haynes and Boone, Mary-Christine Sungaila and Martin M. Ellison for International Association of
Defense Counsel as Amicus Curiae on behalf of Defendants and Respondents.

K&L Gates, Edward P. Sangster and J. Nicholas Ranjan for Chamber of Commerce of the United States of
America as Amicus Curiae on behalf of Defendants and Respondents.
Counsel who argued in Supreme Court (not intended for publication with opinion):

Ian Herzog
Herzog, Yuhas, Ehrlich & Ardell
11400 West Olympic Boulevard, Suite 1150
Los Angeles, CA 90064
(310) 458-6660

Robert A. Brundage
Morgan, Lewis & Bockius
One Market, Spear Street Tower
San Francisco, CA 94105-1596
(415) 442-1000
