The Rise and Defense of Optional Feature Litigation

10.15.19 | Permalink

Posted By: Steven I. Klein and Jens C. Ruiz

John’s Bad Day

On a Sunday afternoon, John was driving his new 2017 base model Meerkat car when he became distracted looking for a french fry he dropped on the floor. His car crossed into the adjacent lane and, after traveling a few hundred feet, collided with a pickup truck that stopped for a woman pushing a baby carriage across the road. John is seriously injured. Once discharged from the hospital, he called an attorney to see who he can sue for the crash. The attorney discovered that a lane departure warning system and automatic emergency braking were offered as optional features on the 2017 Meerkat. John then sued the vehicle manufacturer and selling dealer for strict liability and negligence based upon claims that the car was defective and unreasonably dangerous because it was not equipped with these safety features that would have prevented his crash.

The Allure of Optional Feature Litigation for Plaintiffs

 While the scenario described above is fictional, lawsuits based upon available optional features are very real. These types of claims are not new, but with the growth and rollout of new technologies, particularly in the vehicle industry, claims asserting that a product was defective and unreasonably dangerous because it was not equipped with optional features will likely increase. These types of claims are very appealing to plaintiffs’ attorneys for a number of reasons, including:

  • The liability theory is pretty simple: “The option makes the product safer and would have prevented the crash and/or injuries.”
  • These types of claims are prime opportunities for “reptile theory” arguments based upon couching the design hierarchy as a rule.
  • The availability of the feature as optional equipment on the product provides makes it difficult, if not impossible, to argue that it is not economically and technologically feasible.
  • The insurance industry and other safety advocacy groups frequently publish papers and studies on the benefits of these technologies which can be used to show “notice” of the safety benefit from the feature and the number preventable deaths/injuries/crashes which from implementation of the feature on the vehicle.
  • Internal company documents may exist that tout the safety benefits and profitability of the technology in order to justify investing in research and development. These documents, in plaintiffs’ eyes, are clear evidence of the manufacturer putting profits over people.

The Design Hierarchy

The design hierarchy is the foundation upon which plaintiffs will build their case. The hierarchy is a tool engineers use for developing products, but plaintiffs attempt to transform it into a “rule” which gives rise to liability if it is not followed. Under the design hierarchy, a manufacturer should: (1) design out hazards posed by the product; (2) if the hazard cannot be designed out, it should be guarded against; and (3) if it cannot be guarded against, the manufacturer must warn of the hazard.

Plaintiffs will argue there is no need to go past the first step because the manufacturer violated the hierarchy by not making the optional feature standard equipment which would have designed out the hazard.

In John’s example above, plaintiff will argue the hazards are (a) leaving the lane due to the driver being distracted and (b) rear ending another vehicle or a striking an object in the road because the driver was distracted or did not react quickly enough. The optional lane departure warning system would have alerted John he was leaving the lane or even corrected the drift for him, and the optional automatic emergency braking would have prevented the hazard of rear ending the pickup truck. Therefore, according to John’s attorney, the manufacturer violated the hierarchy because it had the technology to design out the hazard and did not do so.

Focus on the Real Standard for Liability

In order to properly defend an optional feature claim, avoid going down plaintiffs’ path that the product is safer with the feature and, therefore, without it, the product is defective/unreasonably dangerous. Generally, a product manufacturer is not an insurer against all harm that might be caused by using the product, and the manufacturer or designer is not obligated to produce an accident-proof or injury-proof product.

Courts almost universally recognized the standard for liability is not whether a product is the safest possible product or whether it can be made safer, but whether the product, as designed or manufactured, is unreasonably dangerous.

In defending the product, it is important to reinforce that the availability of a new feature does not transform a previously non-defective model into a defective one. Before the feature was introduced, users could manage the risk of using the product without the feature. The introduction of a product with the optional feature may make the utility of the product go up, or the risk go down, but the risk of using a product without the feature doesn’t change. This can be shown graphically as:

Prepare for Reptile Theory Questions

These claims are ripe for “reptile theory” questions. Examples of common “reptile” questions to expect are:

  • Don’t you agree a manufacturer has a duty to make the safest possible product?
  • Wouldn’t you agree a manufacturer should never needlessly endanger the public?
  • Wouldn’t you want your child to have the safest [product] possible?

Be thoroughly prepared to respond to these kinds of questions. Also be prepared to address company documents which discuss the safety benefits of the option and the decision to make it optional.

Almost all engineers will admit they are familiar with the design hierarchy as it was taught in even the most basic engineering courses. However, they must be careful not to fall into the trap of elevating the hierarchy from a tool to a rule. Engineers must also be prepared to defuse plaintiffs’ description of the “hazard” and reiterate that the optional feature at issue in the litigation is merely an enhancement to an already reasonably safe product.

Highlight the Bias in Safety Advocacy/Insurance Industry Studies

Advocacy groups and insurance industry groups such as the Insurance Institute for Highway Safety and their sister entity, the Highway Loss Data Institute often publish studies advocating the benefits of safety technologies.

Plaintiffs will use these studies to support their claims. These studies, however, can have biases or be based upon inadequate data or methodologies that are skewed toward a particular outcome or finding.

The IIHS has a clear interest in reducing insurance payouts, which is evidenced by the fact that it is supported by insurers and funded by national insurance associations. See https://www.iihs.org/iihs/about-us/member-groups. The impact of these studies can be defused by highlighting the biases and flaws within them.

If Applicable, Point Out That Government Safety Standards Do Not Require the Feature

Not all products have government safety standards, but if such standards exist, the fact that they do not require the product to be equipped with the option is very persuasive evidence, and in some jurisdictions creates a presumption of non-liability. The most obvious examples are Federal Motor Vehicle Safety Standards and Consumer Product Safety Commission Rules. In fact, it is possible that the regulatory agency considered whether to make the feature mandatory and determined there was little to no benefit. If so, that determination will be a useful tool to rebut the advocacy studies and publications relied upon by plaintiffs.

Embrace the Consumer Expectations Test

The consumer expectation test provides that “a product is unreasonably dangerous in design…[if] it failed to perform as safely as an ordinary consumer would expect when used as intended or in a reasonably foreseeable manner. See Aubin v. Union Carbide Corp., 177 So.3d 489 (Fla. 2015) citing Restatement (Second) of Torts §402A. Under this theory, it is the expectation of the consumer and not specifically the conduct of the manufacturer that determines whether a product is defective or unreasonably dangerous.

Many times, defendants in product liability cases believe the consumer expectation test weighs in favor of the plaintiff while the risk/utility test is preferable for the defense. In optional feature claims, the consumer expectations test can be a weapon for your defense. For example, conducting a survey and review of available data to demonstrate that in 2017, 90% of similar products in use in the U.S. were not equipped with the feature is strong evidence to show that a consumer would not expect that feature to be present on a similar 2017 product.

Highlight Implementation and Efforts to Promote the Product

A feature can only provide a benefit if customers will accept it. It takes time to develop customer acceptance. “Optionality” is necessary to drive customer acceptance.

Explaining the company’s efforts to promote the feature to drive customer acceptance also presents plaintiffs with a dilemma. They want to claim that the manufacturer was greedy and made the feature optional so that it can make more money from the option, but at the same time want to claim that the manufacturer did not educate or inform the public enough to buy the option. These theories are irreconcilably inconsistent.

Make Freedom of Choice/Personal Responsibility Key Themes

Freedom of choice and personal responsibility should be central themes for the defense. Most consumers do not have infinite resources and must decide how they are going to spend their hard earned money. Considering safety options is a common component of shopping for products. Perhaps the safety option of a vehicle, affected the vehicle’s performance, the number of passengers or cargo it can carry, or significantly changed the aesthetic. Whatever the reason, consumers should be the ones that weigh the relative risk with the benefits of including the option on the product.

For example, the consumer may decide that they have been able maintain their lane of travel without assistance for years and, instead of spending money on a lane departure warning system, may choose to spend money on a better child safety seat, a backup camera or a home security system. People are entitled to make their own decisions on how to spend their “safety” dollars and to make choices about their risk tolerances.

Tell the Story Regarding the Real Increased Cost of the Optional Features

A plaintiffs' attorney will claim that the cost of the optional feature is simply the sum of the component parts. This overly simplified position does not take into account the research and development that goes into designing and testing the parts.

Additionally, point out the other costs to consumers of the optional features. On October 25, 2018, the American Automobile Association released findings that vehicles equipped with advanced driver assistance systems, such as automatic emergency braking and lane departure warnings, can significantly increase the cost of repair, even for minor vehicle collisions.

“For the vehicles in AAA’s study, the repair bill for a minor front or rear collision on a car with [advanced driver assistance systems] can run as high as $5,300, almost two and half times the repair cost for a vehicle without these systems.” According to AAA, “[w]ith one-in-three Americans unable to afford an unexpected repair bill of just $500, AAA strongly urges consumers to perform an insurance policy review and consider the potential repair costs of these advanced systems.” When used in conjunction with freedom of choice, the added cost to repair can be a compelling justification in support of optionality.

Case Precedent for Optional Feature Claims

Courts in many jurisdictions have recognized that a manufacturer should not be liable for a consumer’s choice not to purchase an available optional feature, even where the optional feature would make the product safer. For example:

  • “A manufacturer is not obligated to market only one version of a product, that being the very safest design possible. If that were so, automobile manufacturers could not offer consumers sports cars, jeeps, or compact cars…Personal safety devices, in particular, require personal choices, and it is beyond the province of courts and juries to act as legislators and preordain those choices.”— Linegar v. Armour of America, Inc., 909 F.2d 1150, 1154 (8th Cir. 1990) (applying Missouri law).
  • “Put simply, if the [plaintiffs] wanted a car with an air bag, they should have purchased a car with an air bag. If you want it, then pay for it.”— Cooper v. Gen. Motors Corp., 702 So.2d 428, 443-44 (Miss. 1998).
  • “[W]hen a customer exercises an option to purchase a product without a safety feature, it is axiomatic that the manufacturer should not be held liable for damages which that safety feature may have prevented.”— Austin v. Clark Equip. Co., 48 F.3d 833, 837 (4th Cir. 1995) quoting Butler v. Navistar Int'l Transp. Corp., 809 F. Supp. 1202, 1209 (W.D. Va. 1991).
Key Takeaways

With the proliferation of advanced technologies in motor vehicles, manufacturers can expect an increase in litigation by consumers who purchased products where these features were not available or were optional, and who claim they were injured because of the absence of the feature. These cases are attacks on the corporate decision-making strategy and can create significant exposure to manufacturers if not properly defended.

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Florida Supreme Court Rejects Daubert, Returns Florida to Frye Standard

10.16.18 | Permalink

Posted By: Lena Mirilovic

On October 15, 2018, the Supreme Court of Florida invalidated the 2013 legislative changes to the Florida Evidence Code that adopted the modern Daubert standard for admissibility of expert testimony, returning Florida to the more lenient Frye standard. DeLisle v. Crane Co., et al., No. SC16-2182. Consistent with their positions in the February 2017 rules decision, which declined to adopt Daubert to the extent it is procedural, and their decision to accept discretionary-review jurisdiction in DeLisle, Justices Labarga, Pariente, Lewis, and Quince formed a majority to reject the Daubert standard. Chief Justice Canady dissented, arguing that the Court lacked jurisdiction, with Justices Polston and Lawson concurring in his dissenting opinion.

The Supreme Court’s ruling ends the ongoing uncertainty in the lower courts regarding the proper standard for expert testimony after the Court declined to adopt the Daubert Amendment as a rule of court, to the extent it was procedural. In Re: Amendments to the Florida Evidence Code, No. SC16-181, February 16, 2017. That rules decision did not present a proper case or controversy for the Court to pass on the constitutionality of the Daubert Amendment, but set the stage for the Court’s ruling in DeLisle. In July 2017, the Supreme Court voted four to three to accept discretionary-review jurisdiction in DeLisle, giving the Court its first opportunity to directly consider the constitutionality of the Daubert Amendment. The Court heard oral argument in the case on March 6, 2018. (For additional background, see Florida Supreme Court to Rule on Constitutionality of Daubert Standard; Daubert Under the Microscope Again by Florida Courts, and Florida Supreme Court Hears Argument on Daubert Standard.)

The majority opinion, authored by Justice Quince, focuses on the central issue to determining the constitutionality of the Daubert Amendment—whether it is a substantive law properly within the purview of the legislature, or a matter of procedure instead within the authority of the Court. The Court ruled that the Daubert Amendment is procedural because it “does not create, define, or regulate a right,” and that the Florida Legislature overstepped its bounds and enacted an unconstitutional law in conflict with a rule of the Court set out in its prior decisions. The majority opinion emphasizes that the Supreme Court has repeatedly affirmed the Frye standard despite the adoption of Daubert as the standard in federal court in 1993.

The opinion also describes Daubert as the more lenient standard—although it applies more broadly to all cases and requires the trial court to evaluate the reliability of the science underlying expert testimony—because it does not require that expert testimony be “generally accepted” in the scientific community. Justice Quince notes that Daubert was initially adopted by the United States Supreme Court because “otherwise probative and scientifically valid evidence was being excluded under the Frye standard ….”

Justice Pariente concurred in a separate opinion to express her “belief that the Daubert amendment also has the potential to unconstitutionally impair civil litigants’ right to access the courts.” She notes concerns about the impact of increased hearings on motions to exclude experts under Daubert in increasing costs to litigants, causing attorneys to turn down meritorious but lower value claims and overburdening the court system with lengthy and technical hearings. On the other hand, Justice Pariente suggests that trial courts still play an important gatekeeping function under Frye and notes that “a proper and thorough application of Frye allows the trial judge to inquire beyond bare assertions of general acceptance.”

Justice Labarga also concurred separately to address why the Court accepted jurisdiction on the basis of express and direct conflict. He states that an express and direct conflict existed because the Fourth District Court of Appeals “applied the Daubert standard, [in conflict] with earlier decision by this Court that conclude Frye is the appropriate test,” and even though the Court “expressly declined to adopt the [Daubert Amendment]” to the extent it was procedural. This reasoning suggests that future legislative changes to the Evidence Code may not be controlling law unless and until they are adopted by the Supreme Court.

In his dissenting opinion, Chief Justice Canady sharply disputes that the Court had jurisdiction to hear the case and expresses his view that the majority has committed a “very serious error” that “sets aside fundamental constitutional principles of conflict jurisdiction.” He states that the Court has “long recognized that a case decided on the basis of a statutory provision cannot be in conflict with an earlier case that pre-dated the effective date of that statutory provision.” In his view, because the Court’s prior decisions adhering to Frye do not address “the same question of law” addressed by the Fourth District Court of Appeals below, there is no express and direct conflict jurisdiction. Notably, the plaintiff did not challenge the constitutionality of the Daubert Amendment before the trial court, and the issue was first raised on appeal to the Fourth District Court of Appeal.

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Florida Supreme Court Hears Argument on Daubert Standard

03.14.18 | Permalink

Posted By: Lena Mirilovic

On March 6, 2018, the Supreme Court of Florida heard argument in a case that presents the Court with an opportunity to resolve whether Frye or Daubert will be the governing standard for admission of expert testimony going forward in Florida state courts. DeLisle v. Crane Co., et al., No. SC16-2182. In this closely watched case, the Plaintiff challenges the constitutionality of 2013 legislative changes to the Florida Evidence Code that dropped the older Frye standard in favor of the more rigorous Daubert standard for admissibility of expert testimony.

There has been considerable uncertainty in the lower courts as to the proper standard for expert testimony following the Supreme Court’s rules decision that declined to adopt the 2013 Daubert Amendment, to the extent it is procedural. In Re: Amendments to the Florida Evidence Code, No. SC16-181, February 16, 2017. While that rules decision did not pass on the constitutionality of the Daubert Amendment, it raised uncertainty about the viability of Daubert in Florida and the potential that the Court would ultimately rule the statute invalid when presented with a proper case and controversy in which to address the issue. The Supreme Court voted four to three to accept discretionary-review jurisdiction in DeLisle in July 2017, giving the Court its first opportunity to directly consider the constitutionality of the Daubert Amendment. (For additional background, see Florida Supreme Court to Rule on Constitutionality of Daubert Standard; Daubert Under the Microscope Again by Florida Courts.)

The first several minutes of the oral argument focused on whether the Court has jurisdiction in this case to rule on the constitutionality of the Daubert Amendment. Justices Canady and Lawson, who dissented from the Court’s July 2017 decision to accept discretionary-review jurisdiction, sharply questioned the Plaintiff on this point, and disputed his position that the Fourth District Court of Appeal had ruled on the constitutionality of the Daubert Amendment by applying the 2013 statute. James Ferraro, arguing for the Plaintiff, maintained that the Court properly accepted conflict jurisdiction because the Fourth District’s application of Daubert conflicted with earlier Supreme Court decisions pre-dating the enactment of the Daubert Amendment, which adhered to the Frye standard. However, he was unable to identify a district court of appeal decision refusing to apply the Daubert Amendment, in conflict with the Fourth District’s decision below. In general, conflict jurisdiction requires an express and direct conflict with a decision of another district court of appeal or the Supreme Court on the same question of law.

The parties’ arguments also addressed whether the Plaintiff’s experts would have been excluded even under the Frye standard—an alternative basis for the Fourth District Court of Appeal’s ruling. The Defendants argued that the Fourth District correctly concluded that the Plaintiff’s experts should have been excluded under either Frye or Daubert. Justices Pariente and Quince expressed skepticism of this position and questioned why the testimony would not have been sufficient for the jury to hear and evaluate under Frye.

Elliot Scherker, arguing for Defendant R.J. Reynolds, downplayed the differences between Daubert and Frye, stating that the first part of the Daubert test is the Frye “general acceptance” standard. Mr. Scherker referred to an “exceedingly thin” line between the two standards, both of which aim to keep junk science out of the courtroom, and argued that the expert testimony excluded by the Fourth District is junk science under any definition.[1] Richard Doran, arguing for Defendant Crane Co., also urged that the outcome in this case would be the same under either Daubert or Frye, and that it was unnecessary for the Court to reach the constitutional issue in this case. During the Plaintiff’s rebuttal argument, Justice Lewis, who was in the majority that voted to accept discretionary-review jurisdiction in the case, pressed Mr. Ferraro on this point. He asked the Plaintiff for the scientific basis for the excluded testimony that would make it admissible under Frye and noted that it may not be necessary for the Court to reach the constitutional issue if the Defendants would prevail even under Frye.

Finally, the parties addressed the central issue to determining the constitutionality of the Daubert Amendment—whether it is substantive or procedural in nature. Plaintiff reiterated the argument made in his brief that the Daubert Amendment is procedural (i.e., not impacting rights, obligations, causes of actions, etc.), and that the Florida Legislature overstepped its bounds and enacted an unconstitutional law on a matter solely within the province of the Court.

Justice Pariente noted that the Daubert Amendment has been deemed procedural for purposes of retroactive application, and asked Defendant R.J. Reynolds how the same statute could then be deemed substantive for purposes of separation of powers. Mr. Scherker responded that, under Florida precedent, whether a statute is substantive or procedural depends on the context in which the issue is raised, and that it cannot be the case that a statute deemed procedural for purposes of retroactivity is automatically also deemed an unconstitutional violation of separation of powers. Mr. Scherker argued that section 90.702 of the Florida Evidence Code, which sets out the standard for admission of expert testimony, has been substantive in part and procedural in part since its adoption in 1976 and in its current form as amended in 2013. He urged that the 2013 amendment to the statute is substantive, and therefore constitutional, because it changed the standard for evaluating what constitutes “junk science” that should be excluded.

Three of the justices expressed concern about the impact of Daubert on litigants and the court system. Justice Quince asked the Plaintiff about the impact of increased hearings on motions to exclude experts under Daubert, which the Plaintiff argued were overburdening the court system. Justice Pariente asked the Defendants whether the Daubert standard tends to usurp the jury’s role as trier of fact in evaluating expert testimony. Justices Pariente and Lewis also questioned the Defendants about the practical implications of Daubert for plaintiffs attempting to prove that their injury was caused by exposure to a defendant’s toxic substance over a period of several years through several different products. The Plaintiff here contracted mesothelioma after long-term exposure to asbestos from several different products. Justice Lewis noted that there are not going to be human experiments in such cases to support causation, and questioned if there is an unreasonable burden on plaintiffs to quantify their exposure.

The Court did not hear argument from any of the several amici curiae that filed briefs in the case. The Attorney General for the State of Florida filed a brief in support of the Defendants, and had requested leave to participate in oral argument, which was denied.

The Supreme Court is anticipated to issue its decision in the coming months, which promises to resolve the current uncertainty about the continued viability of Daubert in Florida. If the Justices remain consistent with their positions in the February 2017 rules decision, which declined to adopt Daubert to the extent it is procedural, and their decision to accept discretionary-review jurisdiction in DeLisle, it is anticipated that Justices Labarga, Pariente, Lewis, and Quince will form a majority to reject the Daubert standard. As highlighted in the oral argument in DeLisle, there remains a possibility that the Court will rule on other grounds (e.g., affirming on the basis that the Defendants would prevail even under Frye) and delay resolution of whether Daubert or Frye will be the standard in Florida going forward.

Until the issue is resolved, litigants are well advised to seek rulings on the admissibility of expert testimony under both Daubert and Frye. Some trial judges in fact are requiring that any hearings on motions to exclude expert testimony proceed under both standards. This approach will help preserve issues for appeal and guard against the possibility of having to re-litigate these matters once there is a definitive ruling from the Supreme Court on the standard for the admissibility of expert testimony going forward.


[1] Most litigants and attorneys would likely disagree that there is only minimal difference between Daubert and Frye. However, from R.J. Reynolds’ perspective in the context of this asbestos exposure case, there may not be a significant difference between the two standards.

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Recent Updates

10.15.19  The Rise and Defense of Optional Feature Litigation  Read Article >>

10.16.18  Florida Supreme Court Rejects Daubert, Returns Florida to Frye Standard  Read Article >>

03.14.18  Florida Supreme Court Hears Argument on Daubert Standard  Read Article >>

12.19.17  Florida Supreme Court to Rule on Constitutionality of Daubert Standard  Read Article >>

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