Updike v. American Honda Motor Company Incorporated et al

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WO
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF ARIZONA
Steven Updike,
Plaintiff,
v.
American Honda Motor Company
Incorporated, et al.,
Defendants.
No. CV-21-01379-PHX-ROS
ORDER
The Court has received briefing on three issues for trial: the required elements of
the consumer expectations test, the admissibility of certain marketing videos published by
Defendant, and the availability of the state of the art affirmative defense.
I. Consumer Expectations
Under the consumer expectations test, “a product is defective and unreasonably
dangerous because of a design defect if it fails to perform as safely as an ordinary consumer
would expect it to perform, when the product is used in a reasonably foreseeable manner.”
RAJI (Civil) 7th, Product Liability 3. This definition requires “the product is, at the time it
leaves the seller’s hands, in a condition not contemplated by the ultimate consumer, which
will be unreasonably dangerous to him.” Restatement (Second) of Torts § 402A, comment
g. (1965). Plaintiff raises the concern that this requirement imposes a negligence standard.
This is incorrect. Negligence standard focuses on the defendant’s conduct, whereas strict
liability focuses on the condition of the product. Plaintiff is not required to prove negligent
conduct on Defendant’s part but must show that there was something wrong with the
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product that caused it to be unreasonably dangerous.
II. Marketing Videos & Advertising
Plaintiff argues for the admission of certain marketing videos published by
Defendant and states “Judge Humetewa ruled that…Honda’s advertisements were relevant
to the consumer expectations test.” (Doc. 232 at 2). Plaintiff refers to the following
language in Judge Humetewa’s order denying Defendant’s Motion in Limine to exclude
all advertising: “The Court agrees that some photographs and advertisements of the Talon
are probative and relevant to consumer expectations.” Judge Humetewa then ordered
Plaintiffs to specifically identify each advertisement it intended to introduce and how its
authenticity would be established. Judge Humetewa did not rule that any and all
authenticated advertisements Plaintiff proffered would be admitted.
Plaintiff also takes issue with the Court’s use of language from the case Gomulka v.
Yavapai Machine and Auto Parts, Inc., 745 P.2d 986. The Court cited the following
language:
Our conclusion that the consumer expectation test does not
apply in this case is bolstered by the fact that Dr. Milner's
affidavit stated that the average consumer has no knowledge of
the properties of gasoline fumes. Yavapai Machine argues that
the consumer expectation test therefore fails to provide an
adequate legal standard by which to test its liability in this case.
We agree, because one who has no knowledge of the properties
of gasoline fumes has no idea about how a product could be
designed to minimize the risk of exploding such fumes.
Gomulka, 745 P.2d at 990. Plaintiff is correct this case does not apply the consumer
expectations test. However, its reasoning is relevant to understanding the consumer
expectations test. As articulated in Gomulka, the consumer expectations test must still have
some connection to the alleged defect.
The Court has reviewed Plaintiff’s submission and examined each proffered
advertisement and finds Plaintiff has not yet established sufficient foundation for relevance
by connecting the videos to the individual facts of this case, in particular the alleged defect.
III. State of the Art Affirmative Defense
Finally, the Court turns to the state of the art affirmative defense. Plaintiff has argued
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that Defendant has disclosed no expert whose testimony is sufficient to establish the
“technical, mechanical, and scientific knowledge of manufacturing designing, testing or
labeling the same or similar products which was in existence and reasonably feasible for
use at the time of [the Talon’s] manufacture.” In Feuerstein v. Home Depot, U.S.A., Inc.,
the court denied the defendant’s motion for summary judgment on the state of the art
defense. The court reasoned:
It is uncontested that the AL–22 went through pre-purchase
safety testing and complied with standard A14.2, the governing
American National Standards Institute (“ANSI”) safety
standard. . . . State of the art is not coextensive with industry
custom: custom refers to what was being done in the industry;
state of the art refers to what feasibly could have been done.
Defendants do not provide evidence regarding whether the
[product] provided the best and most feasible design . . . at the
time of its manufacture . . . [or] evidence of experimentation
and research conducted prior to manufacturing the [product].
Thus, the court cannot conclude that the [product] was state of
the art as a matter of law at the time of its manufacture.
2014 WL 2557122. While the evidence proffered was not sufficient to support summary
judgment for the defendant, the evidence of industry standard and pre-purchase safety
testing was not excluded. Here, Defendant claims its experts will testify to industry
standards, minimum safety regulations, and the testing and experimentation that went into
the development of the Talon. The Court will not preclude use of the defense in advance,
but will require Defendant to meet its full requirements prior to instructing the jury on the
state of the art.
IT IS SO ORDERED.
Dated this 4th day of February, 2026.
Honorable Roslyn O. Silver
Senior United States District Judge
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