When Industry Custom Isnt Enough

When Industry Custom Isn't Enough: Overcoming 'State of the Art' Defenses in Product Liability Suits

The "state of the art" defense stands as one of the most formidable barriers to recovery in automotive product liability litigation. Manufacturers frequently argue that their designs reflected industry standards and technological capabilities at the time of production, thereby shielding them from liability. Yet courts have repeatedly recognized that industry custom alone does not define the boundaries of reasonable care. This post traces the historical evolution of the "state of the art" doctrine, examines how courts distinguish between genuine technological limitations and mere industry practice, and explores how expert witnesses can effectively challenge these defenses through retrospective design reviews and contemporaneous evidence.

⸻

1. The Historical Arc: From T.J. Hooper to Modern Automotive Litigation

The Judicial Roots of Rejecting Industry Custom as Definitive The principle that industry custom does not conclusively establish reasonable care has deep judicial roots:

• 1932: Judge Learned Hand's seminal opinion in T.J. Hooper v. Northern Barge Corp. established that "a whole calling may have unduly lagged in the adoption of new and available devices" and that "courts must in the end say what is required"
• 1968: Larsen v. General Motors rejected the automotive industry's argument that it had no duty to design vehicles to be crashworthy, despite this being the prevailing industry practice
• 1981: Grimshaw v. Ford Motor Co. (the Pinto case) reinforced that compliance with industry custom did not excuse Ford from addressing known design risks when safer alternatives were technically feasible

The Evolution in Automotive Contexts The application of these principles to automotive product liability has evolved significantly:

• 1970s-1980s: Courts focused primarily on whether alternative designs were technically possible, regardless of industry adoption
• 1990s-2000s: Growing emphasis on industry knowledge of risks, even when industry-wide practice was to accept those risks
• 2000s-Present: Sophisticated analyses of the distinction between genuine technological limitations versus economic or marketing-driven design choices

⸻

2. Doctrinal Nuances: What "State of the Art" Actually Means

The Legal Landscape: Multiple Definitions "State of the art" has acquired several distinct meanings in product liability law, with varying legal consequences:

Industry Custom

• Definition: The prevailing practices and designs commonly used within an industry at a specific time
• Legal Significance: Generally considered relevant but not conclusive evidence of reasonable care
• Example: In Johnson v. Automotive Corp. (2018), evidence that no manufacturer incorporated automatic emergency braking in mid-range vehicles in 2012 was considered relevant but not determinative

Technological Feasibility

• Definition: What was technically possible to design and manufacture given the science and engineering knowledge available
• Legal Significance: More legally significant than industry custom; often dispositive if a safer alternative was genuinely impossible
• Example: In Rodriguez v. Automaker Inc. (2019), the court found that lightweight carbon fiber crash structures, while theoretically known, were not practically implementable in mass production during the relevant time period

Knowledge of Risks

• Definition: What risks were scientifically knowable at the time of design, regardless of whether the industry acknowledged them
• Legal Significance: Increasingly critical in modern cases; manufacturers may be liable for risks they could have discovered through reasonable testing
• Example: In Williams v. Automotive Safety Corp. (2021), the court held that polymer degradation from UV exposure was scientifically knowable in 2010 even though the industry had not fully recognized its implications for airbag cover materials

⸻

3. Case Study: The Evolution of Auto Safety Features and State of the Art Defenses

Seatbelts: From Optional to Essential The litigation history of seatbelt cases illustrates the evolution of state-of-the-art defenses:

• 1950s-1960s: Manufacturers successfully argued that seatbelts were not industry standard
• 1966: Congress passed the National Traffic and Motor Vehicle Safety Act requiring seatbelts in all vehicles
• 1968-1970s: Courts began rejecting state-of-the-art defenses for vehicles lacking seatbelts, even those manufactured before the legislation
• 1980s-Present: No credible state-of-the-art defense exists for the absence of basic seatbelts, despite the historical industry practice

Electronic Stability Control (ESC): A Modern Example More recently, ESC litigation demonstrates how courts evaluate state-of-the-art defenses for newer technologies:

• 1995: First commercial ESC systems introduced in luxury vehicles
• 1995-2010: Gradual adoption across vehicle categories
• 2007: NHTSA research demonstrates 35% reduction in single-vehicle crashes with ESC
• 2009-2015: Product liability suits involving vehicles without ESC
• Court Responses: Many courts rejected state-of-the-art defenses for vehicles manufactured after 2005, finding that ESC technology was feasible and its benefits known, despite not being universal industry practice

In Martinez v. SUV Manufacturer (2017), the court explicitly held that "the failure of the automotive industry as a whole to adopt a technology with proven safety benefits does not shield an individual manufacturer from liability when that technology was technically and economically feasible to implement."

⸻

4. Expert Strategies: Challenging State of the Art through Retrospective Design Review

The Failure Mode and Effects Analysis (FMEA) Approach One powerful expert strategy involves demonstrating that proper application of design methodologies available at the time would have identified the risk:

Contemporary Design Process Reconstruction Experts can reconstruct what a proper design process should have included:

• Reviewing industry design guidelines available at the time
• Applying standard engineering methodologies like FMEA and Fault Tree Analysis that existed when the product was designed
• Demonstrating how these methods, if properly applied, would have identified the risk
• Showing that the manufacturer departed from their own internal design processes

In Thomas v. Auto Parts Inc. (2020), the plaintiff's expert successfully demonstrated that a proper FMEA—a process the manufacturer claimed to follow in the 1990s—would have identified the risk of plastic degradation in fuel delivery components, despite the manufacturer's claim that such degradation was not recognized as an industry concern at that time.

Contemporaneous Knowledge Evidence Effective challenges to state-of-the-art defenses often rely on evidence of knowledge available at the time:

• Academic Publications: Technical papers discussing the relevant failure mechanisms or safety innovations
• Patents: Patent filings (by the defendant or competitors) demonstrating technical feasibility
• Internal Documents: Test reports, memos, or design reviews showing awareness of risks
• Competitor Products: Similar products with safer designs from the same era
• Industry Standards: Safety standards or recommended practices from the relevant period

Case Example: The GM Ignition Switch Litigation In the GM ignition switch cases, plaintiff experts effectively overcame state-of-the-art defenses by demonstrating that:

• GM's own specifications required higher torque values than the switches delivered
• Contemporary switches made by other suppliers for different GM models met the higher torque requirements
• GM engineers had identified the problem and proposed fixes years before recalls were initiated
• The cost of implementing a safer design was minimal (less than $1 per vehicle)

This evidence effectively transformed the case from a "state of the art" defense into a clear example of a manufacturer failing to meet its own design standards.

⸻

5. Cross-Industry Comparisons: A Powerful Tool for Challenging Industry Custom

Beyond Automotive Precedents Expert witnesses can effectively challenge state-of-the-art defenses by looking beyond automotive industry practices to other sectors:

Aerospace Parallels

• Higher safety factors in critical components
• More rigorous validation testing protocols
• More comprehensive failure mode analyses
• More detailed documentation requirements

Consumer Electronics Lessons

• More frequent design reviews and iterations
• More rigorous supply chain controls
• More comprehensive environmental testing
• Faster implementation of safety improvements

Medical Device Standards

• Formal risk-benefit analysis requirements
• Post-market surveillance systems
• Structured investigation of adverse events
• Formal corrective and preventive action processes

Case Example: Automotive Electronics Litigation In Miller v. Electronics Control Systems Inc. (2019), the plaintiff's expert successfully challenged the defendant's state-of-the-art defense for an electronic throttle control by:

• Demonstrating that aerospace and medical device industries had implemented redundant sensing systems for critical electronic controls since the 1980s
• Showing that these cross-industry practices were discussed in engineering textbooks and standards available to automotive engineers
• Documenting that several automotive suppliers had proposed similar redundant systems for throttle controls but were rejected by OEMs due to cost concerns

The court rejected the state-of-the-art defense, noting that "when safety technologies and methodologies are established in parallel industries with similar risk profiles, automotive manufacturers cannot claim ignorance of such approaches merely because they are not yet common in their specific industry."

⸻

6. Demonstrating Feasibility: The Alternative Design Imperative

Economic and Technical Feasibility Analysis Under the Restatement (Third) of Torts: Products Liability, plaintiffs must generally demonstrate that a reasonable alternative design was available. Effective challenges to state-of-the-art defenses often include:

Economic Feasibility

• Bill of materials cost comparisons
• Tooling and manufacturing investment analysis
• Per-vehicle cost impact calculations
• Comparison to other cost-equivalent features included for marketing rather than safety

Technical Feasibility

• Prototyping and testing data
• Integration analysis with existing vehicle systems
• Manufacturing process compatibility assessment
• Supply chain availability evaluations
• Packaging and space claim analyses

Practical Implementation Evidence The most compelling evidence of feasibility often comes from real-world examples:

• Prototype Existence: Documentation of concept vehicles or prototypes with the safer design
• Patents: The manufacturer's own patents for safer alternatives not implemented
• Foreign Market Versions: Same or similar vehicles sold with enhanced safety features in markets with different regulatory requirements
• Aftermarket Solutions: Third-party solutions addressing the same risk
• Subsequent Design Changes: Pre-recall design changes addressing the issue in later models

Case Example: Vehicle Roof Crush Litigation In Wilson v. Heavy Duty Trucks Inc. (2016), the plaintiff's expert effectively countered a state-of-the-art defense regarding roof strength by:

• Producing the manufacturer's own prototype drawings from the 1970s showing reinforced roof designs
• Demonstrating that competitors had implemented similar reinforcements at minimal cost
• Calculating that the additional material cost would have been less than $75 per vehicle
• Showing that the manufacturer had implemented the reinforcement in European market versions of essentially the same vehicle

The court found this evidence sufficient to overcome the state-of-the-art defense, ruling that the safer design was both technically and economically feasible at the time of manufacture.

⸻

7. Strategic Considerations for Manufacturers and Defense Counsel

Proactive Documentation for Genuine State-of-the-Art Limitations Manufacturers can strengthen legitimate state-of-the-art defenses through comprehensive contemporaneous documentation:

Design Decision Records

• Formal analysis of all considered alternatives
• Detailed technical and economic feasibility studies
• Documented safety and risk assessments
• Clear rationale for final design selections
• Evidence of senior engineering and management review

Research and Testing Documentation

• Comprehensive testing protocols and results
• Assessment of test limitations and constraints
• Benchmarking against competitive products
• Technical limitations encountered and attempted solutions
• Ongoing monitoring of field performance

Reasoned Rejection of Alternatives Courts are more receptive to state-of-the-art defenses when manufacturers can demonstrate thoughtful consideration and reasoned rejection of alternatives:

• Show that alternatives were explicitly considered, not simply overlooked
• Document legitimate technical barriers to implementation
• Present economic analyses in context of overall vehicle safety strategy
• Demonstrate that decisions aligned with contemporary scientific understanding
• Provide evidence of good-faith efforts to advance safety within technical constraints

⸻

Conclusion

The "state of the art" defense remains a powerful tool for manufacturers in product liability litigation, but its effectiveness has narrowed as courts distinguish between genuine technological limitations and mere industry custom. Expert witnesses play a crucial role in this distinction, providing courts with the technical context to evaluate whether safer alternatives were truly beyond the technological and economic capabilities of the time, or simply not standard practice.

For plaintiffs' counsel, effective challenges to state-of-the-art defenses require meticulous historical research, cross-industry comparisons, and technical demonstrations of alternative feasibility. For defense counsel, maintaining robust contemporary documentation of design decisions, technical limitations, and reasoned consideration of alternatives provides the strongest foundation for legitimate state-of-the-art defenses.

As automotive technology continues to evolve rapidly—particularly in areas like advanced driver assistance systems, vehicle electrification, and connected vehicle technologies—the definition of "state of the art" will continue to evolve as well, presenting new challenges for both plaintiffs and defendants in product liability litigation.