J. A21015/16


AMERICAN HONDA MOTOR CO., INC.,            :     IN THE SUPERIOR COURT OF
             Appellant                     :          PENNSYLVANIA
                                           :
                                           :
                                           :
                  v.                       :
                                           :
CARLOS MARTINEZ AND ROSITA DE              :
LOS SANTOS DE MARTINEZ, H/W                :     No. 445 EDA 2015

            Appeal from the Judgment Entered January 21, 2015
            In the Court of Common Pleas of Philadelphia County
                     Civil Division at No(s): 111203763

BEFORE: BENDER, P.J.E., DUBOW, J., and MUSMANNO, J.

MEMORANDUM BY DUBOW, J.:                              FILED APRIL 19, 2017

      This appeal of a Judgment in a products liability case has a unique and

uncommon procedural posture. After the jury returned a verdict in favor of

Appellees, and against Appellant, but before the trial court ruled on Honda’s

Post-Trial Motion, the Pennsylvania Supreme Court issued its decision in

Tincher v. Omega Flex, Inc., 104 A.3d 328 (Pa. 2014), which overruled a

dispositive products liability case.   Therefore, the issues in the Post-Trial

Motion and on appeal deal with whether the holding in Tincher negatively

impacted the trial court’s jury instructions and evidentiary rulings. We find

that the trial court, even in light of Tincher, properly instructed the jury and

precluded certain evidence. We, therefore, affirm.

      More specifically, the Appellant in this appeal is American Honda Motor

Co., Inc. (“Honda”), which appeals from the judgment entered in favor of

Carlos Martinez and Rosita de los Santos de Martinez (“Appellees”) and
J. A21015/16


against Honda for $55,325,714. The trial court aptly set forth the facts and

procedural history as follows:

         On May 1, 2010, [Appellee] Carlos Martinez, was driving a
         1999 Acura Integra, manufactured by Honda, when he lost
         control of the vehicle. His car left the roadway and rolled
         over twice. He sustained serious injuries from the accident
         that rendered him a quadriplegic.        [Appellees] timely
         brought suit against Honda for damages as a result of the
         accident.[1]   In their claim against Honda, [Appellees]
         alleged the seatbelt in [Appellee] Carlos Martinez’s vehicle
         was defectively designed.

         The matter was tried before a jury from June 17, 2014 to
         June 26, 2014. The jury returned a verdict against Honda,
         finding Honda negligent under two independent theories.
         First, the jury found that the design of the seatbelt in
         Carlos Martinez’s car was defective and there was an
         alternative, safer, practicable design.      The jury also
         determined the subject vehicle was defective because of
         Honda’s failure to warn. The jury also found both the
         defective design and Honda’s failure to warn were factual
         causes of [Appellee] Carlos Martinez’s injuries. As a result,
         the jury awarded [Appellees] $14,605,393.00 in future
         medical expenses, $720,321.00 in past and future lost
         earnings and earnings capacity, $25 million in past and
         future non-economic damages, and $15 in loss of
         consortium, totaling an award of $55,325,714.00.

Trial Ct. Op., 9/17/15, at 1-2.

      On July 7, 2014, Honda filed a timely Post-Trial Motion. While the Post-

Trial Motion was pending, our Supreme Court issued its decision in Tincher

1
   In their Complaint, Appellees also raised claims against Bowser
Automotive, Inc., and Takata Corporation. Appellees dismissed their claims
against Bowser Automotive, Inc. by Stipulation entered on January 14,
2014. In response to a Rule to Show Cause issued upon the parties by this
Court on January 24, 2017, the parties jointly represent that Appellees never
served their Complaint on Takata Corporation and Takata Corporation never
entered an appearance in this case.



                                     -2-
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supra. In Tincher, the Supreme Court overruled the long-standing decision

in Azzarello v. Black Bros. Co., 391 A.2d 1020 (Pa. 1978), by holding that

in a design defect case, it should be the jury, and not the trial court, that

determines the threshold question of whether a product is “unreasonably

dangerous.” Tincher, supra at 406, (citing Azzarello, supra at 1025-27).

      The trial court heard argument on the Post-Trial Motion that addressed

the issue of the impact of Tincher on the trial court’s evidentiary rulings and

jury instructions.2 On January 21, 2015, the trial court denied Honda’s Post-

Trial Motion, and entered Judgment in favor of Appellees in accordance with

the jury’s allocation of damages. Honda timely appealed.       Honda and the

trial court complied with Pa.R.A.P. 1925.

      Honda raises the following eight issues on appeal:

         1. Whether the Supreme Court’s decision in Tincher [v.
         Omega Flex, Inc., 104 A.3d 328 (Pa. 2014)] requires a
         new trial because the trial court: (i) failed to instruct the
         jury that [Appellees] had the burden of proving that the
         product was “unreasonably dangerous,” (ii) charged the
         jury with Azzarello[ v. Black Bros. Co., 391 A.2d 1020
         (Pa. 1978)]’s vague and confusing “guarantor”/”any
         element” instruction which Tincher rejected, (iii) barred
         Honda from introducing evidence of applicable regulatory
         and industry standards, and (iv) denied Tincher’s
         applicability to warning claims.




2
  Because the trial court had not ruled on the Post-Trial Motion when the
Supreme Court issued its decision in Tincher, Tincher applies retroactively
to the issues raised in Honda’s Post-Trial Motion. See Passarello v.
Grumbine, 87 A.3d 285, 307-08 (Pa. 2014).



                                     -3-
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         2. Whether the trial court’s design defect jury instruction
         was erroneous for omitting the second crashworthiness
         element and misstating the third element.

         3. Whether the trial court erroneously instructed the jury
         on [Appellees’] warning-defect claim by imposing an
         irrebuttable heeding presumption.

         4. Whether Honda is entitled to a [J]udgment n.o.v. on the
         design-defect claim because the only alternative design
         [Appellees] presented to the jury was unlawful under
         federal regulations.

         5. Whether [Appellees’] unlawful design-defect claim is
         preempted by federal motor vehicle regulations.

         6. Whether Honda is entitled to a [J]udgment n.o.v. on the
         warning-defect claim because [Appellees] offered no
         causation evidence that [Appellee Carlos] Martinez would
         have heeded any additional warning.

         7. Whether the excessive damages            award    violates
         Pennsylvania law and Due Process.

         8. Whether refusal to transfer venue warrants that any
         new trial occur in [Appellees’] county of residence.

Honda’s Brief at 4-5.

Standard of Review

      This Court will only reverse a trial court’s denial of Judgment N.O.V. if

the trial court committed an error of law that controlled the case or, if the

court, after reviewing the evidence in the light most favorable to the verdict-

winner and giving the verdict-winner the benefit of all inferences, abused its

discretion:

         Appellate review of a denial of JNOV is quite narrow. We
         may reverse only in the event the trial court abused its
         discretion or committed an error of law that controlled the


                                     -4-
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            outcome of the case. Abuse of discretion occurs if the trial
            court renders a judgment that is manifestly unreasonable,
            arbitrary or capricious; that fails to apply the law; or that
            is motivated by partiality, prejudice, bias or ill will. When
            reviewing an appeal from the denial of a request for JNOV,
            the appellate court must view the evidence in the light
            most favorable to the verdict-winner and give him or her
            the benefit of every reasonable inference arising therefrom
            while rejecting all unfavorable testimony and inferences. . .
            . Thus, the grant of JNOV should only be entered in a
            clear case and any doubts must be resolved in favor of the
            verdict-winner[.]

Sears, Roebuck & Co. v. 69th Street Retail Mall, L.P., 126 A.3d 959,

967 (Pa. Super. 2015) (citations, quotation marks, and brackets omitted).

         Applying this standard, we find that the trial court did not err in

denying Honda’s Motion for Judgment N.O.V.

Trial Court’s Jury Instructions in Light of Tincher

         In large part, Honda’s first three issues challenge the trial court’s jury

instructions.3 In reviewing the jury instructions, we must determine whether

there was an omission from the charge that amounts to a fundamental

error:

            To determine whether the trial court abused its discretion
            or offered an inaccurate statement of law controlling the
            outcome of the case. A jury charge is adequate unless the
            issues are not made clear, the jury was misled by the
            instructions, or there was an omission from the charge
            amounting to a fundamental error.       This Court will
            afford a new trial if an erroneous jury instruction
            amounted to a fundamental error or the record is

3
 This is true with the notable exception of sub-issue three of issue one,
which raises a challenge to an evidentiary ruling.
We will address this issue in the next section of this Memorandum.



                                        -5-
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         insufficient to determine whether the error affected
         the verdict.

Tincher, 104 A.3d at 351 (emphasis added). Moreover, the trial court has

wide discretion in charging a jury and a charge is considered adequate

unless the jury instruction palpably misled the jury or there was an omission

that amounted to a fundamental error:

         A jury charge will be deemed erroneous only if the charge
         as a whole is inadequate, not clear[,] or has a tendency to
         mislead or confuse, rather than clarify, a material issue. A
         charge is considered adequate unless the jury was
         palpably misled by what the trial judge said or there is an
         omission which is tantamount to fundamental error.
         Consequently, the trial court has wide discretion in
         fashioning jury instructions. The trial court is not required
         to give every charge that is requested by the parties and
         its refusal to give a requested charge does not require
         reversal unless the [a]ppellant was prejudiced by that
         refusal.

Amato v. Bell & Gossett, 116 A.3d 607, 621 (Pa. Super. 2015), appeal

granted, 130 A.3d 1283 (Pa. 2016) (emphasis added).

      Honda raises four challenges to the jury charge in light of Tincher.

The first three deal with the charge for the design defect claim and the final

challenge deals with the charge for the failure to warn claim. See Honda’s

Brief at 19-20, 22-27.   We first address the challenges to the jury charge

that address the design defect claim.

      Honda argues that it is entitled to a new trial because, contrary to the

holding in Tincher, it was the judge, and not the jury, who made the




                                     -6-
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threshold determination of whether Appellees’ 1999 Integra’s seat belt

restraint was “unreasonably dangerous.”

      It is well established that a plaintiff, as a threshold matter, must

establish that a product is “unreasonably dangerous” by either a risk utility

analysis or consumer expectation analysis. Tincher, supra at 426-27. In

this case, the trial court, in fact, did engage in a risk utility analysis before

sending the case to the jury and concluded that Appellees met their burden.

      Honda, in particular, argues that since it was the judge, and not the

jury, who engaged in a risk utility analysis, Appellant is automatically

entitled to a new trial.    However, our analysis does not end with only

evaluating whether it was the judge or the jury who engaged in a risk utility

analysis.   Rather, we must look to the jury instructions and determine

whether a portion of the jury charge included a risk utility analysis.

      When conducting a risk utility analysis, a jury must determine

whether “a reasonable person would conclude that the probability and

seriousness of harm caused by the product outweigh the burden or costs of

taking precautions.”   Id. at 389.

      In this case, one of theories that Appellees advanced was a

crashworthiness theory, which required, inter alia, proof that there was an

alternative, safer, practicable design for the seat belt restraint system.

See Gaudio v. Ford Motor Co., 976 A.2d 524, 532 (Pa. Super. 2009).




                                      -7-
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      Although the language in this charge—that there was an “alternative,

safer, practicable design” for the seat belt restraint system—is not precisely

the language required for the risk utility analysis, we conclude that the

charge is not fundamentally flawed. The portion of the charge to determine

the “practicability of an alternate design” inherently requires the jury to

balance factors such as the cost of implementing the design against the

relative safety of the alternate design. Accordingly, the jury could not have

reached a verdict in the case without conducting a risk utility analysis.

      Therefore, we find that the trial court did not abuse its discretion in

denying Honda’s request for a new trial. The jury charge here was adequate

because the court made it clear to the jury that it was the arbiter of whether

the 1999 Integra’s seat belt restraint system was “unreasonably dangerous,”

and the absence of explicit “risk-utility” language from the court’s instruction

did not amount to a fundamental error.

      In its second sub-issue, Honda claims it is entitled to a new trial

because the court erroneously charged the jury with Azzarello’s vague and

confusing “guarantor”/“any element” instruction, which Tincher rejected.

Following our review of Tincher, we disagree with Honda that the court’s

instruction contained a fundamental error in this regard. Although Tincher

overruled Azzarello, the holding in Tincher does not require that the trial

court remove the “guarantor” language from a jury instruction. Therefore,

Honda is not entitled to relief on this claim.



                                      -8-
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      In its third sub-issue, Honda avers that it is entitled to a new trial

because the court erred in preventing Honda from introducing evidence of its

compliance with applicable federal regulatory and industry standards. This

claim is meritless.

      We review a trial court’s ruling on the admission of evidence for an

abuse of discretion or misapplication of the law. Gaudio, 976 A.2d at 535.

      Our Supreme Court has held that evidence of applicable federal

regulatory and industry standards “‘should be excluded because it tends to

mislead the jury’s attention from their proper inquiry,’ namely ‘the quality or

design of the product in question.’” Id. at 543 (quoting Lewis v. Coffing

Hoist Division, Duff-Norton Co., Inc., 528 A.2d 590, 594 (Pa. 1987)).

Tincher does not, nor did it purport to, affect the applicability of the rulings

in Gaudio or Lewis. Based upon precedent that remains unchanged, the

trial court determined that the proposed evidence was inadmissible.         We

agree.

      With respect to Honda’s fourth, and final, sub-issue pertaining to

Tincher’s applicability to failure to warn claims, we reiterate that our

Supreme Court decided Tincher in the context of a design defect strict

liability case.   Although Honda correctly notes that in Amato v. Bell &

Gossett, 116 A.3d 607, 621 (Pa. Super. 2015), this Court extended the

holding in Tincher to warning defect strict liability cases, Honda is not

entitled to relief on this claim.



                                     -9-
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      In Amato, the defendants sought, and the trial court denied, a failure

to   warn   jury   instruction   incorporating   the   negligence    concept   of

reasonableness. Amato, 116 A.3d at 620. In considering the defendant’s

claim of trial court error, this Court recognized that the Tincher Court itself

acknowledged that its “decision is limited to the context of a ‘design defect’

claim[.]”   Tincher, 104 A.3d at 384 n.21.       However, we concluded that,

because Tincher returned reasonableness “considerations to the purview of

the jury as a question of fact in cases concerning strict liability[,]” Tincher is

applicable to failure to warn strict liability actions. Amato, 116 A.3d at 620.

      After concluding that the holding in Tincher applied to design defect

and failure to warn cases alike, however, the Amato court found that the

trial court’s failure to warn instruction did not prejudice the defendant

because the defendant’s proposed instruction was not justified by its theory

of the case or the evidence it presented at trial. Id. at 622-23. Amato did

not shed any light on how a court should word a failure to warn jury

instruction to comply with Tincher.

      It bears noting that the Pennsylvania Supreme Court recently granted

the Amato plaintiffs’ Petition for Allowance of Appeal for the limited purpose

of considering whether, under Tincher, a defendant advancing a strict-

liability claim based on a failure to warn theory has the right to have a jury

determine whether its product was unreasonably dangerous. See Amato v.




                                      - 10 -
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Bell & Gossett, 130 A.3d 1283 (Pa. 2016).                Thus, the applicability of

Tincher to warning defect claims remains unsettled.

      In the instant matter, however, we need not consider whether the trial

court’s instruction to the jury on Appellees’ failure to warn theory of liability

complied with Tincher, as any such failure would amount to harmless error.

Because the jury returned a verdict against Honda on both of Appellees’

theories of liability, Honda’s argument that it is entitled to a new trial fails as

Honda cannot demonstrate that the court’s instruction prejudiced it or that

the allegedly erroneous instruction was responsible for the verdict.           See

Chanthavong v. Tran, 682 A.2d 334, 340 (Pa. Super. 1996) (holding that,

“[t]o constitute reversible error, a jury instruction must not only be

erroneous, but must also be harmful to the complaining party.”) (citations

omitted)).

Crashworthiness

      In its next issue, Honda claims that it is entitled to a new trial because

the trial court’s design defect jury instruction was erroneous. Honda’s Brief

at 29. Relying on Colville v. Crown Equipment Corp., 809 A.2d 916 (Pa.

Super.   2002),    Honda     avers    that,    because     Appellees   pursued   a

crashworthiness cause of action against it,4 the trial court must explicitly



4
  Appellees do not dispute that they raised a crashworthiness claim against
Honda. We note that, the “application of the crashworthiness doctrine is
required where the alleged defect did not cause the accident or initial



                                      - 11 -
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instruct the jury on each of the three elements of crashworthiness.         See

Honda’s Brief at 31 (citing Colville supra).      Honda claims that the court

adequately charged the jury on element one of the crashworthiness burden

of proof, but failed to charge on element two, and incorrectly charged on

element three. Id.

      “[T]he crashworthiness doctrine extends the liability of manufacturers

and sellers to situations in which the defect did not cause the accident or

initial impact, but rather increased the severity of the injury over that which

would have occurred absent the design defect.”5 Colville, 809 A.2d at 922.

In a crashworthiness case, a plaintiff bears the burden of proving three

elements. Id. at 922; see also Rest. 2d Torts § 402A. “First, the plaintiff

must demonstrate that the design of the vehicle was defective and that

when the design was made, an alternative, safer, practicable design

existed.” Colville, supra at 922 (citations omitted). “Second, the plaintiff

must show what injuries, if any, the plaintiff would have received had the

alternative safer design been used.” Id. at 923 (citation omitted). “Third,




impact, but merely serves to increase the severity of the injury.” Colville,
supra at 933 (citation omitted).
5
  It is for this reason that the crashworthiness doctrine is also sometimes
known as the second collision doctrine. Colville, supra at 922. “[A] second
collision, as used in the definition of a crashworthiness of a motor vehicle in
products liability cases, generally refers to the collision of the passenger with
the interior part of the vehicle after the initial impact or collision.” Id. at
923 (citation and quotation omitted).



                                     - 12 -
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the plaintiff must prove what injuries were attributable to the defective

design.” Id.

     Here, the trial court instructed the jury as follows:

        If you find that the product at the time it left [Honda’s]
        control lacked any element necessary to make it safe for
        its intended use or contained any condition that made it
        unsafe for its intended use and there was an alternative,
        safer, practicable design, then the product was defective,
        and [Honda] is liable for all harm caused by the defect.

N.T., 6/26/14 (afternoon session), at 23.

     The court also instructed the jury that,

        [i]n order for [Appellees] to recover in this case, the
        defective condition must have been a factual cause of
        harm attributable solely to the impact that occurred when
        the roof of the car hit the ground.

        [Appellees are] required to prove only that the defective
        condition was a factual cause of those damages that
        occurred when the roof of the car hit the ground.
        [Appellees are] not required to prove that the defective
        condition caused the tire to blow out or the rollover itself.

N.T., 6/26/14 (afternoon session), at 25-26.

     Our review of this instruction reveals that, when considered in its

totality, the court’s instruction to the jury on the crashworthiness doctrine

was adequate.

     Moreover, we find Honda’s reliance on Colville unpersuasive.          In

Colville, this Court remanded the case to the trial court after concluding

that the court failed to provide the jury with any instruction whatsoever on

crashworthiness. Colville, supra at 926. Contrary to Honda’s averments,



                                    - 13 -
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Colville did not direct the court to instruct the jury on the three elements of

a crashworthiness defect claim with any particular level of specificity. Here,

as set forth supra, the trial court made it clear to the jury that it was to

focus its inquiry into Honda’s liability on the “second collision,” i.e., the

injury Carlos Martinez suffered when the roof of his car hit the ground.

      Accordingly, we find that our decisional law does not prescribe a jury

instruction meeting the level of specificity demanded by Honda, and that the

court’s instruction to the jury on crashworthiness adequately encapsulated

the elements of the doctrine. Honda is not entitled to relief on this claim.

The Heeding Presumption Instruction

      In its third issue, Honda claims it is entitled to a new trial because the

trial court erroneously instructed the jury on Appellees’ warning defect claim

by imposing an irrebuttable heeding presumption. Honda’s Brief at 42, 45.

Honda argues that the court’s instruction was improper because the

Pennsylvania Suggested Standard Civil Jury Instruction (“Pa.SSJI (Civ)”) §

16.50 is incomplete and obsolete, and because it charged the jury that the

heeding presumption was not rebuttable. Id. at 44-45.

      With respect to this claim, the trial court explained its decision to

instruct the jury pursuant to the Pa. SSJI (Civ) § 16.50 as follows:

         Based upon the evidence introduced in this case, this
         [c]ourt instructed the jury pursuant to Pa. SSJI (Civ) §
         16.50, which instructed the jury that they must presume
         that if there were adequate warnings[, Carlos Martinez]
         would have followed them. Honda claims error because
         the [c]ourt did not charge pursuant to Pa.SSJI (Civ) §


                                    - 14 -
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         16.60. That instruction, as the subcommittee noted, is
         appropriate when the defendant has presented evidence
         rebutting the heeding presumption. The [c]ourt did not
         give the requested instruction because Honda presented
         no evidence to rebut the presumption. The only evidence
         on this issue was Mr. Martinez’s testimony that had a
         warning been given[,] he would have heeded it by not
         buying the car.

Trial Ct. Op., 9/17/15, at 10.

      Our review of the relevant jury instruction reveals that, contrary to

Honda’s assertion, the court did not, in a vacuum, instruct the jury that it

“must presume that Mr. Martinez would have followed any adequate

warning.”   Honda’s Brief at 42.   Rather, as explained by the court supra,

given Appellees’ evidence, and Honda’s lack of rebuttal evidence, the court

instructed the jury that:

         Even a perfectly made and designed product may be
         defective if not accompanied by proper warnings and
         instructions concerning its use. A manufacturer must give
         the user or consumer any warnings and instructions of the
         possible risks of using the product that may be required or
         that are created by the inherent limitations in the safety of
         such use.

         If you find that such warnings or instructions were not
         given, the defendant is liable for all harm caused to the
         plaintiff by the failure to warn.

         If you find instead that there were warnings or instructions
         required to make this product non-defective which were
         not adequately provided by the defendant, then you may
         not find for the defendant based on a determination that,
         even if there had been adequate warnings or instructions,
         the plaintiff would not have read or heeded them.




                                    - 15 -
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         Instead, the law presumes, and you must presume, that if
         there had been adequate warnings or instructions, the
         plaintiff would have followed them.

N.T., 6/26/14 (afternoon session), at 23-25 (emphasis added).

      Here, Mr. Martinez testified, over Honda’s objection, that, had there

been warnings about the car not being able to protect him in a rollover, he

would not have bought the car.       Honda did not introduce any evidence

rebutting this testimony.   We find, therefore, that, in the absence of any

evidence rebutting Mr. Martinez’s testimony, the trial court’s heeding

instruction was appropriate. Accordingly, no relief is due.

Alternative Design Evidence

      In its fourth issue, Honda claims that it is entitled to a Judgment

N.O.V. on Appellees’ design-defect claim because the only alternative seat

belt design Appellees presented to the jury was infeasible because it was

unlawful under federal regulations.      Honda’s Brief at 35.      This issue

implicates the weight the jury gave to the evidence presented by the parties.

Our standard of review of weight of the evidence claims is well-settled:

         appellate review of a weight claim is a review of the trial
         court's exercise of discretion, not of the underlying
         question of whether the verdict is against the weight of the
         evidence. Because the trial judge has had the opportunity
         to hear and see the evidence presented, an appellate court
         will give the gravest consideration to the findings and
         reasons advanced by the trial judge when reviewing a trial
         court's determination that the verdict is against the weight
         of the evidence. One of the least assailable reasons for
         granting or denying a new trial is the lower court's
         conviction that the verdict was or was not against the



                                    - 16 -
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            weight of the evidence and that a new trial should be
            granted in the interest of justice.

Phillips v. Lock, 86 A.3d 906, 919 (Pa. Super. 2014) (citation omitted). In

addition,

            The factfinder is free to believe all, part, or none of the
            evidence and to determine the credibility of the witnesses.
            The trial court may award a judgment notwithstanding the
            verdict or a new trial only when the jury's verdict is so
            contrary to the evidence as to shock one's sense of justice.
            In determining whether this standard has been met,
            appellate review is limited to whether the trial judge's
            discretion was properly exercised, and relief will only be
            granted where the facts and inferences of record disclose a
            palpable abuse of discretion. When a fact finder's verdict is
            so opposed to the demonstrative facts that looking at the
            verdict, the mind stands baffled, the intellect searches in
            vain for cause and effect, and reason rebels against the
            bizarre and erratic conclusion, it can be said that the
            verdict is shocking.

Brown v. Trinidad, 111 A.3d 765, 770 (Pa. Super. 2015) (citations and

quotation marks omitted).

      As discussed supra, in order to prevail on a crashworthiness theory of

liability, a plaintiff must prove, inter alia, “that the design of the vehicle was

defective, and that, at the time of design an alternative, safer, and

practicable design existed that could have been incorporated instead.” Parr

v. Ford Motor Co., 109 A.3d 682, 689 (Pa. Super 2014), allocatur denied,

123 A.3d 331 (Pa. 2015); see also Colville, 809 A.2d at 922.

      Appellees’ presented evidence at trial of an alternative practicable seat

belt design (the “Sicher Design”) that it claimed was in use by Chrysler in its




                                       - 17 -
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Sebring model during the period relevant in this case. Appellees argue that

the use of the Sicher Design in another vehicle established its lawfulness.

      Honda, however, argues that the Sicher Design incorporated an

element that would have been illegal for Honda to design and sell, and that

an illegal alternative design is no alternative at all. Id. at 37. Honda avers

that it proffered evidence that Mr. Sicher, Appellees’ expert, never tested his

proposed design without the allegedly illegal element, and notes that Mr.

Sicher testified that, without the addition of the allegedly illegal element, his

“test dummy probably would have suffered head-to-roof contact[.]” Id. at

36.   Honda seeks reversal of the judgment in favor of Appellees’ on its

crashworthiness claim on the grounds that “[a] design like Mr. Sicher’s,

dependent on a feature that is illegal to sell, cannot logically or legally be a

feasible alternative design.” Id.

      We conclude that Honda’s claim lacks merit.            Here, the parties

presented conflicting evidence of the legality and practicability of Appellees’

alternative design. The jury, as factfinder, was free to believe all, part, or

none of the evidence, and to determine which party’s witnesses and

evidence it found more credible. Having properly done so, the court did not

abuse its discretion in denying Honda’s Motion for Judgment N.O.V.

Federal Preemption

      In its fifth issue, Honda claims that Appellees’ unlawful design defect

claim is preempted by federal motor vehicle safety standards because it



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“frustrates a comprehensive federal regulatory scheme intended to ensure

that manufacturers have a choice among a variety of designs for passenger

restraint systems.”   Honda’s Brief at 38-39.    Honda also argues that this

claim is preempted because Appellees’ alternative design violates federal

law. Id. at 37.

      The trial court explained its denial of Honda’s claim as follows:

         In denying Honda’s claim we followed the decision of the
         United States Supreme Court in Williamson v. Mazda
         Motor of America, Inc., [562 U.S. 323 (2011)], which
         held that although the federal regulations provided
         manufacturers with choices between seat belt designs,
         victims may still raise state court claims of defective
         design based upon a manufacturer’s decision to install an
         allegedly less safe design.

Trial Ct. Op. at 8.

      We agree with the trial court that the U.S. Supreme Court’s holding in

Williamson is clearly applicable to the instant matter and unequivocally

permits Appellees’ state claim. Moreover, we note that, with the exception

of Williamson, Honda did not direct this Court to any binding authority in

support of the arguments it proffered, instead relying on decisions of the

federal circuit and district courts.    See NASDAQ OMX PHLX, Inc. v.

PennMont Secs., 52 A.3d 296, 303 (Pa. Super. 2012) (reiterating that

decisions of the lower federal courts are not binding on this Court).     For

these reasons, Honda’s claim lacks merit.




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Failure to Prove Causation

      In its sixth issue, Honda claims that it is entitled to a new trial or

Judgment N.O.V. because “[a]ssuming arguendo that Honda had a duty to

warn about the open and obvious risk of injury from rollover accidents and

did not satisfy it, Appellees failed utterly to prove that any inadequate

warning caused Mr. Martinez’s injury.” Honda’s Brief at 48. Honda argues

that Appellees failed to offer evidence to support a reasonable inference that

an inadequate warning caused Mr. Martinez’s injuries.       Id. at 50.   Honda

further avers that “[i]f the trial court had not erroneously instructed the jury

to presume causation irrebuttably,[6] [ ] the jury could not have made a

reasonable, evidence-based judgment that Mr. Martinez’s injury was caused

by the owner’s manual lacking a hypothetical warning of an unspecified

nature.” Id. at 51.7

      We review this claim with the following in mind:

         Proximate cause is an essential element in a failure to
         warn case. A proximate, or legal cause, is defined as a
         substantial contributing factor in bringing about the harm
         in question. Assuming that a plaintiff has established both
         duty and a failure to warn, a plaintiff must further
         establish proximate causation by showing that had

6
  This argument is predicated on Honda’s claim, disposed of supra, that the
trial court erroneously instructed the jury with an irrebuttable heeding
presumption. See supra at 14-16.
7
   Honda also claims, without citation to authority, that Appellees had the
burden of proving that the warnings given by Honda were inadequate, and
that Appellees failed to sustain that burden. Honda’s Brief at 52-53. We
find this argument waived.



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         defendant issued a proper warning, he would have altered
         his behavior and the injury would have been avoided. To
         create a jury question, the evidence introduced must be of
         sufficient weight to establish . . . some reasonable
         likelihood that an adequate warning would have prevented
         the plaintiff from [engaging in the conduct that caused the
         injury].

Maya v. Johnson and Johnson, 97 A.3d 1203, 1213-14 (Pa. Super. 2014)

(citation omitted).

      Mr. Martinez testified over Honda’s objection that he would not have

purchased the automobile if there had been warnings about it not being able

to protect him in a rollover.    Notably, Honda did not cross-examine Mr.

Martinez to ascertain whether, for example, he possessed the manual, or

had read it. Appellees’, therefore, proffered sufficient evidence from which

the jury could conclude that Honda’s failure to adequately warn Mr. Martinez

was the proximate cause of his injury.

Excessive Damages Claim

      In its seventh issue, Honda claims that the damages awarded by the

jury were excessive and illegal. Honda’s Brief at 53. First, Honda argues

that the award “bears no relation to [Appellees’] actual harm, and far

exceeds other awards in similar Pennsylvania cases.”         Id. at 54.    Next,

Honda    argues   that   the   non-economic   portion   of   the   award    was

disproportionate to the economic component, indicating that the award was

punitive in nature, and, therefore, violated Honda’s due process rights. Id.




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Honda asks this Court to grant remittitur and reduce the allegedly excessive

verdict. Id. at 56.

      The decision to grant or deny remittitur is within the sound discretion

of the trial court; “judicial reduction of a jury award is appropriate only when

the award is plainly excessive and exorbitant.” Renna v. Schadt, 64 A.3d

658, 671 (Pa. Super. 2013).          “The question is whether the award of

damages     falls   within   the   uncertain    limits   of   fair   and   reasonable

compensation or whether the verdict so shocks the sense of justice as to

suggest that the jury was influenced by partiality, prejudice, mistake, or

corruption.” Id.

      In deciding whether a jury’s verdict is excessive, the court should

consider, inter alia,

         (1) the severity of the injury; (2) whether the plaintiff's
         injury is manifested by objective physical evidence or
         whether it is only revealed by the subjective testimony of
         the plaintiff (and, herein, the court pointed out that where
         the injury is manifested by broken bones, disfigurement,
         loss of consciousness, or other objective evidence, the
         courts have counted this in favor of sustaining a verdict);
         (3) whether the injury will affect the plaintiff permanently;
         (4) whether the plaintiff can continue with his or her
         employment; (5) the size of the plaintiff's out-of-pocket
         expenses; and (6) the amount plaintiff demanded in the
         original complaint.

Gbur v. Golio, 932 A.2d 203, 212 (Pa. Super. 2007).

      Instantly, the trial court considered Honda’s request for remittitur, and

found the following:




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         . . . Mr. Martinez was rendered a paraplegic. The jury
         credited [Appellees’] evidence that his future care would
         cost $14,605,393[,] and his lost earnings amounted to the
         sum of $720,321. The verdict for non-economic damages
         and loss of consortium was consistent with the facts and
         testimony presented in court.        We did not believe it
         appropriate for us to disturb the jury’s finding.         The
         evidence from the family in this case was compelling how
         the accident turned Mr. Martinez from a family wage
         earner and head of the household into a helpless person
         dependent upon others for every aspect of his daily
         survival. Every part of both plaintiff[s’] lives were changed
         drastically and irrevocably. As Mr. Martinez had a life
         expectancy of an additional twenty-eight (28) years, both
         plaintiffs will suffer extensive damages. Accordingly, in the
         exercise of our discretion, based upon the evidence we did
         not believe the verdict should have been disturbed.

Trial Ct. Op. at 11.

      The trial court did not abuse its discretion in concluding that the jury’s

verdict in this case did not shock its sense of justice, nor in declining to find

that partiality, prejudice, mistake, or corruption influenced the jury in its

determination of the award.        Our review of the record indicates that

Appellees’ presented ample evidence of Mr. Martinez’s injuries and how they

impact him and his family now and for the rest of his life. Moreover, the trial

court’s Opinion on this issue, albeit brief, reflects that it properly weighed

the factors set forth in Gbur, supra. Accordingly, no relief is due on this

claim.




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Transfer to York County

      In its final issue, Honda claims that any new trial should be conducted

in York County. Because we have concluded that Honda is not entitled to a

new trial, we need not reach the merits of this issue.

      Judgment affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 4/19/2017




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