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Uncertainty in Admissibility of Comparative Product Evidence Under CA Law

By Michael Foley

In Buell-Wilson v. Ford Motor Company (2006) 141 Cal.App.525 [Buell-Wilson (I)], the California Court of Appeal, Fourth District, held that, in a strict automotive product liability case, a “manufacturer cannot defend a product liability action with evidence it met its industry's customs or standards on safety.” In particular, the court of appeal opinion categorically precludes a manufacturer from proving by statistical evidence that its vehicle performs more safely than its peers, concluding that statistical comparative-safety evidence is inadmissible industry custom and practice.

While Buell-Wilson (I) deals with exclusion of comparative rollover data for automobiles in California, the case is being cited by other jurisdictions, for other products, as a wholesale prohibition against the introduction of any comparative data or any industry customs or standards. Buell-Wilson (I)'s continued precedential viability is in doubt, but that does not stop plaintiffs in product liability actions from basing exclusionary motions upon it, seeking exclusion of highly relevant evidence, such as: compliance with federal regulations (i.e., FMVSS); state of the art at the time of manufacture; non-statistical comparative performance evidence; general comparative injury evidence; compliance with company practices or standards in the industry; comparative statistics; any comparison to other products; and any analysis of how safely other vehicles produced by other manufacturers perform in comparison.

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