San Francisco partner Alan Lazarus authored an analysis that was published in Law360 titled “A New Approach To Industry Custom Evidence In California.” The analysis examines the California Supreme Court’s decision in Kim v. Toyota Motor Corp., which broke with decades of lower appellate court precedents “barring manufacturers from using evidence of their compliance with industry custom and practice to prove their design was not defective.”
Prior to this ruling, lower courts found that custom evidence is inadmissible in a strict liability case when offered by a defendant. Alan wrote that the state supreme court made a distinction between industry custom evidence, and regulatory compliance evidence and “state of the art” evidence, which is “proof of what is technologically achievable or ‘what can be done.’” In contrast, industry custom design “deals with ‘what is done’ within the relevant industry.”
In his analysis, he outlined the court’s reasoning and noted that “the court stopped short of giving any concrete guidance on when the evidence would not be admissible.”
“The prior rule barring custom and practice evidence, like many other aspects of California products liability law (for example, much of the lower courts’ consumer expectations jurisprudence), often injected an element of the surreal,” he wrote. “In the modern, vigorously competitive marketplace, safety sells, and the independent reluctance of a large swath of the industry to adopt a particular design feature or technology does indeed ‘shed light’ on the wisdom of the design.”
Alan’s analysis was originally published on the Drinker Biddle Products blog.