Opinion
NOT TO BE PUBLISHED
San Mateo County Super. Ct. No. CIV 431003
SEPULVEDA, J.
Plaintiff Eugenio Paul Feliciano was injured while operating a forklift manufactured by defendant Toyota Industrial Equipment Manufacturing, Inc. (Toyota). A forklift tire split, toppling the forklift. Plaintiff landed on the warehouse floor, and the forklift came down on his leg. Plaintiff’s leg was crushed and later amputated below the knee. Plaintiff sued Toyota for a defective forklift design that placed excessive force on the vehicle’s tires. After a month-long trial, the jury found Toyota liable for defective design of the forklift on the legal theory of strict products liability. The trial court entered judgment on the jury’s verdict, assessing damages of $1.8 million against Toyota.
Toyota appeals. Toyota claims that a plaintiff must show the existence of a feasible, safer alternative design in order to prevail in a design defect case, and that the judgment must be reversed because plaintiff failed to prove the existence of tires able to withstand the forces exerted by the forklift’s suspension mechanism. Toyota also claims that the verdict is unsupported by the evidence, and that a juror committed prejudicial misconduct by introducing allegedly extraneous law on the subject of workers’ compensation during deliberations.
We conclude that Toyota forfeited its claim concerning the burden of proving a safer alternative design by failing to raise it in the trial court. The claim is also unsupported by California law, which tasks the manufacturer with proving that the benefits of the challenged design outweigh the risks. We also conclude that substantial evidence supports the jury’s verdict, and that there was no juror misconduct. Workers’ compensation principles referenced during deliberations were not derived from improper extraneous sources, but from courtroom proceedings and common knowledge.
Our factual recitation is focused upon evidence relevant to the jury’s finding that Toyota is liable for a defective forklift design, which is the basis for the judgment challenged on appeal. The jury also found plaintiff’s employer negligent, and allocated a greater responsibility for the accident to the employer (80 percent) than to Toyota (20 percent). The employer’s negligence is not disputed and thus not described in detail.
A. The accident
Plaintiff Feliciano was hired by Forward Air, Inc. (Forward Air), a shipping and receiving company, in September 2001. For about 14 months before his accident in January 2003, plaintiff worked as a forklift operator, moving shipments within a warehouse. On the night of the accident, plaintiff was moving freight off trailers into the warehouse storage bays. Plaintiff was driving the loaded forklift at about five miles per hour when he twice felt a little “wobbling.” Plaintiff slowed down and looked over his shoulder at the right rear tire. The tire looked all right so plaintiff continued forward and dropped off the freight. Plaintiff reversed the forklift and again looked at the tire, with a clear angle. The tire looked fine. Plaintiff did not feel any forklift wobbling after dropping off the freight and reversing from the warehouse wall. Plaintiff continued forward at about five miles per hour when, suddenly, the forklift tipped over. Plaintiff testified: “boom, I had a forklift on my leg.”
B. Theories of causation
At trial, the parties agreed that the forklift tipped over because its right rear tire failed. The cause of the tire failure was disputed. According to plaintiff’s expert witness, the Toyota forklift design placed excessive lateral force on the vehicle’s tires, causing rubber fatigue and tire failure. Plaintiff maintained that Toyota failed to equip the forklift with tires able to handle the lateral forces generated by the vehicle’s suspension system. Toyota’s witnesses acknowledged that the Toyota forklift suspension system imparts greater lateral force on tires than a conventional forklift, but said the greater force causes only accelerated tire wear, not tire failure. According to Toyota, the tire failure on the forklift driven by plaintiff was caused by external damage to the tire, not internal pressures.
C. Forklift design
The forklift driven by plaintiff was a Toyota Series 7. The Series 7 forklift is a 6,000 pound truck with a 3,000 pound lift capacity. Production of the Series 7 began in 1999 and continues today. The Series 7 is the first forklift equipped with a suspension mechanism known as the system of active stability (SAS). Toyota promotes the SAS feature as a system that reduces the chance of lateral tip overs by electronically locking the rear axle. An expert witness for Toyota testified that most lift truck fatalities occur from tip overs, and that the SAS substantially reduces the possibility of lateral tip overs. The SAS also increases productivity by allowing the operator to drive the vehicle at faster speeds without fear of tip overs.
The SAS activates on the forklift’s rear axle. A forklift’s rear axle pivots as the forklift travels over uneven surfaces so that all four tires stay on the floor. When the SAS engages, a small cylinder on one end of the rear axle locks up and prevents the rear axle from pivoting. The forklift’s dashboard has SAS indicator lights that illuminate when the system engages. A forklift operator at Forward Air testified that the SAS indicator lights came on whenever the forklift turned left or right, and illuminated about “200 times a shift.” The warehouse operated on three shifts, 24 hours a day.
The standard tires on a Series 7 are pneumatic (air-filled) tires but Toyota sometimes outfits the forklift with solid rubber tires, as here. Solid rubber tires are puncture-proof, and will not deflate if the forklift operator runs over a nail. Solid tires are a popular option, and placed on about 20 percent of the Series 7 forklifts. The design specifications for tires used on the Series 7, including the material composition and dimensions of the tires, were established before SAS was added to Toyota’s forklift line.
It was undisputed that the SAS mechanism imparts greater lateral force on tires than a conventional forklift. Plaintiff’s principal expert witness, a doctor of engineering in applied mechanics, testified at length on the subject. Gustav Nystrom, Ph.D., testified that the SAS, by locking the drive axle, places physical force on the forklift tires. Dr. Nystrom calculated the force, or lateral load, of a SAS equipped forklift at 1.9 times the load of a conventional forklift.
Toyota’s expert witness, a mechanical engineer, agreed that the SAS mechanism increases the tire load. Toyota’s tire expert also conceded that SAS causes increased lateral stresses on the forklift’s tires. As the tire expert noted, when the SAS mechanism locks the forklift’s suspension “[t]hat stress has to go somewhere.” Toyota’s manager of product safety standards and engineering testified that the company is aware of the fact that the SAS causes accelerated tire wear.
D. Consequences of increased force on tires
Plaintiff’s expert witness testified that the increased lateral load on tires from the SAS mechanism speeded rubber fatigue. The expert, Dr. Nystrom, calculated the fatigue rate at ten times the rate of a conventional forklift. Dr. Nystrom testified that the failed tire would have lasted about 15 years on a conventional forklift before coming apart, instead of the 1.5 years it lasted on the subject forklift. Dr. Nystrom opined that the tire that failed had a “little flaw” originating at the tire factory that grew into a crack through cycles of rubber fatigue caused by excessive physical forces exerted by Toyota’s SAS mechanism.
Toyota disputed that opinion. While acknowledging that the SAS feature causes increased force on the forklift’s tires, Toyota’s expert witness testified that the force results only in “more tire wear but does not cause the tire to fail.” The expert, a mechanical engineer, testified that repeated activation of the SAS mechanism will cause an accelerated rate of tire wear. The engineer opined that a SAS-equipped forklift does not damage tires; it simply wears off the rubber faster than a conventional forklift and might require more frequent tire replacement.
E. Evidence of tire condition
Dr. Nystrom testified, on behalf of plaintiff, that his inspection of other forklift tires at Forward Air found sidewall fatigue cracks, some exceeding ten inches in length. Dr. Nystrom opined that the cracks were not attributable to external damage from striking objects at the warehouse because the cracks were on both sidewalls of the tire—the side facing out and the side facing the undercarriage of the forklift. A defense expert acknowledged that a tire that could not meet the lateral forces of a piece of equipment would fail along the sidewall, “in a circumferential manner.”
Toyota’s tire expert acknowledged that some of Forward Air’s forklift tires showed sidewall circumferential tears but attributed the damage to striking objects or the tire being lodged between two obstructions. There was testimony that a warehouse environment poses rough tire conditions, including broken wooden pallets, nails, metal bands, and other debris. Forward Air had a practice of parking the forklifts in tandem, one behind the other, and the forks would sometimes damage the tire of the forklift in front. Forward Air forklift operators also engaged in “horseplay,” including “doing donuts” (driving the forklift in tight circles), driving in a figure eight, and racing across the warehouse.
F. Accident history
Toyota introduced evidence of its forklift accident record to refute plaintiff’s claim that the SAS feature was dangerous. Toyota’s manager of product safety standards and engineering estimated that 75,000 to 80,000 Series 7 forklifts have been manufactured since that type of forklift was introduced in 1999, and the manager believed that the majority of those forklifts are still in operation. Toyota collects accident reports involving its forklifts, and was aware of only “about four” other lateral tip over accidents involving its Series 7 forklift. None of the forklift operators was injured in those earlier tip over accidents. According to Toyota’s records, plaintiff suffered the only instance of a catastrophic failure of a rear, steering tire on a Series 7 forklift. Toyota’s product safety manager also said that plaintiff presented the first and only claim that the SAS feature damages the steering tires on the Series 7 forklift. A tire expert testified that if tires were unmatched for the lateral forces applied to them, there would be an “epidemic” of tire failures. “It wouldn’t be one tire.”
Plaintiff challenged Toyota’s reliance on the total number of Series 7 forklifts to assess safety. On cross-examination, Toyota’s product safety manager conceded that the number of Series 7 forklifts of the same size as the subject forklift was far fewer than 75,000. Toyota’s witness testified that Toyota manufactured a combined total of 5,374 units of the model involved in the accident (model 15) and another model (model 18) in the same class with a greater lift capacity but the same frame and tire size. Most of those forklifts were outfitted with air-filled tires. Toyota manufactured only 708 forklifts of the same model as the subject forklift that were equipped with solid rubber tires. Toyota’s product safety manager was unable to estimate how many of those 708 forklifts were outfitted with the same brand tire as the one on the forklift driven by plaintiff. Additionally, Toyota had no record of how many of those 708 forklifts were in operation for as long as the subject forklift. It was estimated that there were about 315 forklifts of the same model as the subject forklift that were equipped with solid tires and in operation for a comparable time when plaintiff’s accident occurred.
Plaintiff also challenged the safety manager’s testimony that he fully investigated product complaints and knew of no complaints related to Series 7 forklift tire failures. Plaintiff introduced a March 2001 letter from Toyota to Forward Air responding to “quality concerns” raised by plaintiff’s corporate employer almost two years before the accident. Forward Air’s concerns included the issue of Series 7 tires experiencing “premature side blown out.” Toyota’s letter characterized the issue as tires without the proper load capacity rating, which Toyota said was a problem “isolated to a batch” and corrected because the “[t]ire supplier now performs additional testing to verify specifications on [a] continuous basis.” Toyota’s product safety manager conceded that he was unfamiliar with the letter and the issues it raised. He also conceded that his investigation into tire complaints did not discover the letter but he still expressed confidence that he had not missed any relevant complaints. During trial, the product safety manager consulted with other Toyota employees about the newly introduced letter and returned to testify that “premature side blown out” was “a poor choice of words” and really meant accelerated tread wear.
At the time of plaintiff’s accident on a Series 7, model 15 forklift equipped with solid tires, his employer, Forward Air, owned about a third of the roughly 315 similarly equipped models produced by Toyota. The author of Forward Air’s complaint of tires with “premature side blown out” did not testify. However, a number of Forward Air employees did testify, and they said they were unaware of any tire failure like the one that caused plaintiff’s accident.
II. Verdict and Judgment
The jury was informed, in an agreed statement read to the jury, that plaintiff Feliciano filed the lawsuit “to recover damages that resulted from an industrial incident” and that his employer, Forward Air, filed its claim as a plaintiff in intervention “to recover workers[’] compensation benefits it paid to and on behalf of Mr. Feliciano as a result of that incident.” The jury was also informed that plaintiff Feliciano claimed that defects in the forklift and tire caused the forklift tip over that injured him, while the forklift and tire manufacturers said the incident was caused by the negligence of plaintiff and his employer.
In a special verdict, the jury found in favor of Toyota on the negligence cause of action but returned a verdict against Toyota on the strict products liability cause of action founded upon a theory of design defect. The jury found that the forklift’s design was a substantial factor in causing harm to plaintiff Feliciano, and that the benefits of the forklift’s design did not outweigh the risks of the design. The jury found that the tire manufacturer, Sumitomo Rubber Industries, Ltd. (Sumitomo), was not liable on causes of action for strict products liability and negligence.
In determining comparative negligence, the jury found that plaintiff was not negligent but that his employer, Forward Air, was negligent. The jury assigned 80 percent of responsibility for plaintiff’s harm to Forward Air, and 20 percent to Toyota. The jury assessed economic damages, for lost wages and medical expenses, at $640,575. Noneconomic damages, for physical pain and mental suffering, were assessed at $6 million.
The described verdict is the final verdict of the jury. The first verdict returned by the jury gave inconsistent answers to questions posed on the verdict form, necessitating brief deliberations to correct the inconsistency. (Code Civ. Proc., § 619.) Initially, the jury returned a verdict finding that the forklift’s design was a substantial factor in causing harm to plaintiff and allocating fault of 20 percent to Toyota while also unanimously answering “yes” to the question: “Did the benefits of the forklift’s design outweigh the risks of the design?” The parties stipulated to resubmitting the verdict form to the jury with an instruction that the jury may not attribute any percentage of responsibility to Toyota if it finds that the benefits of the forklift’s design outweigh the risks. The jury returned less than an hour later with a modified verdict in which 9 of the 12 jurors found that the benefits of the design did not outweigh the risks, thus finding Toyota liable for a design defect.
In March 2005, the court entered judgment against Toyota in the amount of $1,772,779. (Civ. Code, § 1431.2.) Toyota moved for judgment notwithstanding the verdict and a new trial. (Code Civ. Proc., §§ 629, 657.) Toyota claimed that the jury’s verdict was unsupported by the evidence or the result of juror misconduct. Toyota claimed that a juror who voted in its favor introduced extraneous information about workers’ compensation when advocating for Toyota during deliberations, and that the information unintentionally prejudiced the other jurors against Toyota. The trial court concluded that substantial evidence supported the verdict and that no juror misconduct occurred. The disputed information about workers’ compensation communicated during deliberations was obtained from courtroom proceedings, the court found. In May 2005, the court denied Toyota’s posttrial motions. Toyota appealed to this court and the parties completed briefing in February 2007.
III. Discussion
Toyota renews its claims of insufficient evidence and juror misconduct. Toyota also asserts a new claim concerning the proper allocation of the burden of proof in a products liability action. We begin with an overview of the law of products liability.
A. General principles of products liability: manufacturing and design defects
“A manufacturer, distributor, or retailer is liable in tort if a defect in the manufacture or design of its product causes injury while the product is being used in a reasonably foreseeable way.” (Soule v. General Motors Corp. (1994) 8 Cal.4th 548, 560.) “A manufacturing defect exists when an item is produced in a substandard condition.” (McCabe v. American Honda Motor Co. (2002) 100 Cal.App.4th 1111, 1120.) A defectively manufactured product “is one that differs from the manufacturer’s intended result or from other ostensibly identical units of the same product line.” (Barker v. Lull Engineering Co. (1978) 20 Cal.3d 413, 429 (Barker).) “A design defect, in contrast, exists when the product is built in accordance with its intended specifications, but the design itself is inherently defective.” (McCabe, supra, at p. 1120.)
B. Design defect: consumer expectations and risk-benefit tests
In California, there are two alternative tests for determining whether a product is defectively designed: the consumer expectations test and the risk-benefit test. (Campbell v. General Motors Corp. (1982) 32 Cal.3d 112, 118-119.) “Under the first test, ‘a product may be found defective in design if the plaintiff demonstrates that the product failed to perform as safely as an ordinary consumer would expect when used in an intended or reasonably foreseeable manner.’ ” (Id. at p. 118.) The second test “involves an evaluation of the design itself. ‘[A] product may be found defective in design, even if it satisfies ordinary consumer expectations, if through hindsight the jury determines that the product’s design embodies “excessive preventable danger,” or, in other words, if the jury finds that the risk of danger inherent in the challenged design outweighs the benefits of such design.’ ” (Ibid.) The jury here found in favor of plaintiff solely on the risk-benefit theory of strict products liability.
C. Risk-benefit test of design defect
Under the risk-benefit test, “the plaintiff must establish a prima facie case of causation. That is, evidence must be adduced which would permit a jury to find that a design feature of the product was a proximate cause of plaintiff’s injury. Once plaintiff has made such a showing, the burden shifts” to defendant manufacturer “to offer evidence relevant to a risk-benefit evaluation of the design” of the product. (Campbell v. General Motors Corp., supra, 32 Cal.3d at pp. 119, fn. omitted, 125.) In evaluating a product’s design, “a jury may consider, among other relevant factors, the gravity of the danger posed by the challenged design, the likelihood that such danger would occur, the mechanical feasibility of a safer alternative design, the financial cost of an improved design, and the adverse consequences that would result from an alternative design.” (Barker, supra, 20 Cal.3d at p. 431.)
In short, plaintiff need only show “a causative link” between the product design and the injury sustained, and the burden of proof then shifts to the manufacturer “ ‘to prove, in light of the relevant factors, that the product is not defective.’ ” (Campbell v. General Motors Corp., supra, 32 Cal.3d at p. 119; Barker, supra, 20 Cal.3d at p. 431.) The California Supreme Court has explained that this allocation of the burden of proof is mandated by “[t]he policies underlying the doctrine of strict products liability.” (Campbell, supra, at p. 119.) “[O]ne of the principal purposes behind the strict product liability doctrine is to relieve an injured plaintiff of many of the onerous evidentiary burdens inherent in a negligence cause of action.” (Barker, supra, at p. 431.) The burden of proof thus shifts to the defendant after plaintiff shows that the injury was caused by the product’s design “[b]ecause most of the evidentiary matters which may be relevant to the determination of the adequacy of a product’s design under the ‘risk-benefit’ standard—e.g., the feasibility and cost of alternative designs—are similar to issues typically presented in a negligent design case and involve technical matters peculiarly within the knowledge of the manufacturer.” (Ibid.)
The high court has refused to depart from its holding that the manufacturer—and not the plaintiff—has the burden of proving that the utility of the challenged design outweighs its dangers. (Soule v. General Motors Corp., supra, 8 Cal.4th at p. 571, fn. 8.) In so doing, the court has rebuffed the argument that the risk-benefit test “unfairly requires the manufacturer to ‘prove a negative’—i.e., the absence of a safer alternative design.” (Ibid.) The court explained that the risk-benefit test “allows the evaluation of competing designs, but it does not require proof that the challenged design is the safest possible alternative. The manufacturer need only show that given the inherent complexities of design, the benefits of the chosen design outweigh the dangers.” (Id. at pp. 571-572.)
D. Plaintiff Feliciano was not required to prove a safer alternative design
Toyota asserts that a plaintiff must show the existence of a feasible, safer alternative design in order to prevail in a design defect case, and that the judgment must be reversed because plaintiff Feliciano failed to prove the existence of tires able to withstand the lateral forces exerted by the forklift’s SAS suspension mechanism. Plaintiff responds that he was under no obligation to prove a safer alternative design, and that Toyota waived its right to assert such an allocation of the burden of proof because the assertion was never made in the trial court.
We conclude that Toyota forfeited its claim to a different allocation of the burden of proof and, moreover, the proposed allocation is unsupported by California law. On the first point, it is well-established that “[t]he doctrine of invited error bars an appellant from attacking a verdict that resulted from a jury instruction given at the appellant’s request.” (Stevens v. Owens-Corning Fiberglas Corp. (1996) 49 Cal.App.4th 1645, 1653.) Here, Toyota proposed a standard jury instruction that required plaintiff to prove only four elements: “One, that Toyota Industrial Equipment manufactured the forklift; two, that at the time of the use the forklift was substantially the same as when it left Toyota Industrial Equipment’s possession; three, that the forklift was used or misused in a way that was reasonably foreseeable to Toyota Industrial Equipment and four, that the forklift’s design was a substantial factor in causing harm to [plaintiff] Mr. Feliciano.” (CACI No. 1204.) The requested instruction further advised the jury that plaintiff is entitled to a verdict in his favor if he proves these four elements unless Toyota “proves that ‘the benefits of the design outweigh the risks of the design.’ ” In deciding whether the benefits outweigh the risks, the “feasibility of an alternative design” was listed as one of the considerations. The jury was thus plainly told, in the instruction requested by Toyota, that the “feasibility of an alternative design” was a consideration relevant to assessing Toyota’s evidence, not plaintiff’s evidence. Toyota may not now assert that plaintiff was required to prove a feasible alternative design after Toyota proposed a jury instruction that freed plaintiff from any such requirement.
Toyota sometimes argues that “a plaintiff alleging design defect bears the burden of proving the existence of a feasible, safer alternative design,” while at other times arguing that a plaintiff bears the initial burden of producing evidence of a feasible, safer alternative design (with defendant ultimately bearing the burden of proof on the issue of design defect). The argument, however formulated, is unsupported by California law.
In any event, Toyota’s assertion that a plaintiff in a strict liability design defect case must prove the feasibility of a safer alternative design is an assertion that is founded on cases from other jurisdictions and has no support under California law. A treatise on product liability ably summarizes the law: “There is a conflict among the states regarding whether evidence of an alternative design is mandatory in a design defect case.” (Am. Law of Prod. Liab. (3d ed. 1987) § 28:8, pp. 28-117-28-119.) Some states follow the rule espoused by Toyota and hold that “the plaintiff must prove that a safer practical alternative design was available to the manufacturer.” (Ibid.) Other states permit a plaintiff to prove feasible alternative designs, but do not require such proof. (Ibid.) California employs its own standard. “[I]n California, the plaintiff does not have the burden of proving the feasibility of a reasonable alternative design; rather, the feasibility of a safer alternate design is a factor to be considered in determining whether the manufacturer has met its burden of proof to show that, on balance, the benefits of the design of the product as a whole outweigh the danger inherent in the design.” (Ibid.)
Toyota maintains that, within California itself, there is a “split on the issue whether a plaintiff alleging a design defect claim must offer evidence of a feasible safer product design as part of his prima facie case.” There is no split of authority. The California Supreme Court has spoken unequivocally on the issue. (Soule v. General Motors Corp., supra, 8 Cal.4th at pp. 571-572, fn. 8; Campbell v. General Motors Corp., supra, 32 Cal.3d at p. 119; Barker, supra, 20 Cal.3d at p. 431.) In Barker, supra, at p. 431, the court noted that “the feasibility and costs of alternative designs” are evidentiary matters involving “technical matters peculiarly within the knowledge of the manufacturer.” Accordingly, “once the plaintiff makes a prima facie showing that the injury was proximately caused by the product’s design, the burden should appropriately shift to the defendant to prove, in light of the relevant factors, that the product is not defective.” (Ibid.) The “relevant factors” include the “feasibility of a safer alternative design.” (Ibid.) Plaintiff’s “evidentiary burden” is limited to showing that the product design “was a substantial factor in causing the injury.” (Campbell, supra, at p. 125.) Once that evidentiary burden is met, the burden shifts to the manufacturer to prove that “the benefits of its chosen design outweigh the dangers.” (Soule, supra, at pp. 571-572, fn. 8.) Such proof may include an “evaluation of competing designs.” (Ibid.) The manufacturer may introduce evidence that a safer alternative design is not mechanically feasible, not financially practical, or not free of other adverse consequences. (Barker, supra, 20 Cal.3d at p. 431.)
This court has recently reaffirmed that a plaintiff in a strict products liability design defect case is not required to prove a feasible alternative design. (Ford v. Polaris Industries, Inc. (2006) 139 Cal.App.4th 755, 772, fn. 11, 776.) While a plaintiff may introduce evidence of a safer alternative design, a plaintiff is not required to do so. (Ibid.; see Hiser v. Bell Helicopter Textron Inc. (2003) 111 Cal.App.4th 640, 655 [evidence of safer alternative design relevant to plaintiff’s design defect case].) The intermediate courts of appeal appear unanimous in holding that a plaintiff is not required to prove a safer alternative design in a strict liability action. (E.g. McCabe v. American Honda Motor Co., supra, 100 Cal.App.4th at p. 1121; Bresnahan v. Chrysler Corp. (1995) 32 Cal.App.4th 1559, 1565; Bernal v. Richard Wolf Medical Instruments Corp. (Bernal) (1990) 221 Cal.App.3d 1326, 1330-1334, overruled on another point in Soule v. General Motors Corp., supra, 8 Cal.4th at pp. 574, 580; Pietrone v. American Honda Motor Company (1987) 189 Cal.App.3d 1057, 1061.)
Toyota denies unanimity on the point and insists that a “split” exists in the California courts about whether a plaintiff must prove a safer alternative design to establish strict products liability. Toyota relies upon two cases that supposedly require such proof from a plaintiff: McGinty v. Superior Court (1994) 26 Cal.App.4th 204 (McGinty), and Garcia v. Joseph Vince Company (1978) 84 Cal.App.3d 868 (Garcia). We conclude that McGinty provides no support for the contention and that Garcia has been disapproved by the court that issued it.
In McGinty, plaintiffs brought a wrongful death action following a fatal plane crash allegedly caused by a malfunctioning engine bolt. (McGinty, supra, 26 Cal.App.4th at p. 206.) Plaintiffs asserted a product liability cause of action founded on allegations of design defect and negligence. (Id. at pp. 206, 209.) During the course of litigation, plaintiffs inadvertently received documents in violation of a protective order in another case. (Id. at pp. 206-207, 212.) The trial court issued a sanction order precluding plaintiffs’ use of the protected documents. (Id. at p. 208.)
The McGinty plaintiffs challenged the sanction order and argued that the excluded documents showed successive design revisions necessary to their case. (McGinty, supra, 26 Cal.App.4th at pp. 208-210.) The appellate court summarized plaintiffs’ argument: plaintiffs maintain that the engineering drawings “go to the heart of [plaintiffs’] design defect and negligence causes of action. [Plaintiffs] say it will be impossible to prove their case without them. One of the elements of [plaintiffs] product liability action is to show the existence of an alternative feasible design for the product which would have been safer. (Barker v. Lull Engineering Co. (1978) 20 Cal.3d 413 [143 Cal.Rptr. 225, 573 P.2d 443, 96 A.L.R.3d 1].) [Plaintiffs] say they cannot do this without showing that such a design not only was created but had been previously used.” (McGinty, supra, 26 Cal.App.4th at pp. 209-210.)
The appellate court reversed the preclusion sanction upon concluding that receipt of the documents was inadvertent and “the documents were legitimately discoverable by other means.” (McGinty, supra, 26 Cal.App.4th at p. 212.) Under these circumstances, the court found the trial court sanction order unduly severe, noting that the sanction was “arguably tantamount to dismissing” the action because plaintiffs “may be prevented from fairly presenting the merits of their case” if the challenged documents are excluded. (Id. at p. 214.)
Toyota’s reliance on McGinty is misplaced. The case plainly does not hold that a plaintiff in a strict product liability design defect case is required to prove a feasible alternative design. McGinty was concerned with a discovery sanction order, and its reference to the existence of an alternative design as an element of plaintiffs’ product liability action was not a judicial pronouncement on the subject but a recitation of plaintiffs’ argument on the importance of the excluded documents. (McGinty, supra, 26 Cal.App.4th at pp. 209-210.) In short, the statement was dictum. Moreover, the McGinty plaintiffs were proceeding under both strict liability and negligence theories of product liability. (Id. at p. 209.) On a negligence theory, plaintiffs would have to show that the manufacturer knew or should have known of the risk posed by its product, and thus the manufacturer’s knowing rejection of alternative safer designs was an important component of the plaintiffs’ product liability action founded in negligence. (See Merrill v. Navegar, Inc. (2001) 26 Cal.4th 465, 485 [explaining different theories of product liability].) The judgment here is not founded on a negligence theory of product liability. That theory was rejected by the jury. At issue here is strict product liability. Nothing in McGinty suggests that a plaintiff must prove the feasibility of an alternative safer design when proceeding against a manufacturer under a strict liability theory.
Garcia, upon which Toyota also relies, does hold that a plaintiff in a strict liability case must prove the feasibility of a safer alternative design. (Garcia, supra, 84 Cal.App.3d at p. 879.) But Garcia is no longer viable. Garcia was issued in 1978, just months after the California Supreme Court articulated the risk-benefit test of product liability in Barker. (Barker, supra, 20 Cal.3d at pp. 430-435; Garcia, supra, 84 Cal.App.3d 868.) According to Garcia, Barker “did not alter the need for demonstrating the availability of reasonable alternate design, but simply shifted to defendant the burden of proving the unreasonableness of requiring an alternative in terms of such items as cost of producing the alternative product.” (Garcia, supra, at p. 879, fn. 3.) The court that issued Garcia has since declined to follow it. (Pietrone v. American Honda Motor Co., supra, 189 Cal.App.3d 1057 at p. 1061.) While the justice who authored Garcia continues to support the principle that a plaintiff must show “proposed alternatives to the attacked design,” he is now alone in that view. (Pietrone, supra, at p. 1068 (dis. opn. of Roth, P.J.).)
We agree with those who conclude that Garcia, supra, 84 Cal.App.3d 868is incorrect and that neither the language nor “the rationale of Barker permits imposing the additional burden of proving a feasible alternative design upon an injured plaintiff.” (Bernal, supra, 221 Cal.App.3d at p. 1332.) We also have the benefit of post-Barker California Supreme Court cases on product liability, which make it clear that a plaintiff’s prima facie case is fully discharged by showing “that a design feature of the product was a proximate cause of plaintiff’s injury.” (Campbell v. General Motors Corp., supra, 32 Cal.3d at p. 119.) It is the manufacturer that bears the burden of proving that “the utility of the challenged design outweighs its dangers,” and that proof may include evidence on the feasibility of a safer alternative design. (Soule v. General Motors Corp., supra, 8 Cal.4th at pp. 571-572, fn. 8.) Toyota’s contention that “the more sensible view” is that a plaintiff in a design defect case should bear the burden of proving a feasible safer design is an argument that is misdirected to this court. We must follow the dictates of the California Supreme Court. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.)
E. Substantial evidence supports the jury’s verdict
Toyota contends that no substantial evidence supports the judgment finding Toyota liable for a forklift design defect. In advocating its position, Toyota points to the absence of prior accidents similar to the one suffered by plaintiff. Toyota also highlights evidence that the forklift’s design was beneficial because the SAS mechanism reduced tip overs and the solid rubber tires resisted punctures. The existence of this evidence, however, does not compel reversal.
The jury, not this court, is the proper arbiter of factual determinations, including the determination whether a product design is defective. (Hasson v. Ford Motor Company (1982) 32 Cal.3d 388, 398.) “ ‘We do not reweigh the evidence on appeal, but rather determine whether, after resolving all conflicts favorably to the prevailing party [citations], and according prevailing parties the benefit of all reasonable inferences [citation], there is substantial evidence to support the judgment.’ ” (Ibid.) While Toyota presented considerable evidence challenging plaintiff’s design defect claim, the relevant question on appeal is “whether the evidence in [plaintiff’s] favor provides a sufficient basis for the jury’s findings.” (Ibid.)
Sufficient evidence supports the jury’s verdict. It was undisputed that Toyota’s forklift, specifically its SAS suspension mechanism, imparts greater lateral force on tires than a conventional forklift. A mechanical engineer who testified for Toyota conceded that the SAS mechanism “does increase the loading” on the tires. Toyota’s tire expert likewise testified that the SAS mechanism causes “increased lateral stresses on the tire.” Toyota’s witnesses denied that the increased force caused anything worse than accelerated tread wear but plaintiff introduced extensive expert witness testimony that the increased force caused rubber fatigue and tire failure.
Plaintiff also presented evidence that Toyota continued to equip its forklifts with the same tires previously used on conventional forklifts that were not subjected to the increased lateral forces created by the SAS mechanism. Plaintiff’s expert in applied mechanics inspected other forklift tires at Forward Air and found sidewall “fatigue cracks,” some exceeding 10 inches in length. Defense experts acknowledged that a tire that could not meet the lateral forces of a piece of equipment would fail along the sidewall, “in a circumferential manner,” and admitted that some of Forward Air’s forklift tires showed sidewall circumferential tears. Toyota maintained that the sidewall tears were caused by external damage, not internal pressure, but plaintiff’s expert disputed that point by noting that the tears occurred on both the inside and outside of the tires.
While the evidence conflicted on many points at trial, on appeal we must resolve all conflicts in favor of the prevailing party. (Hasson v. Ford Motor Company, supra, 32 Cal.3d at p. 398.) The evidence in plaintiff’s favor was sufficient to “permit a jury to find that a design feature of the product was a proximate cause of plaintiff’s injury.” (Campbell v. General Motors Corp., supra, 32 Cal.3d at pp. 119, 125.) Having made such a showing, the burden shifted to Toyota “to offer evidence relevant to a risk benefit evaluation of the design” of the product. (Ibid.)
Toyota’s evidence included testimony that there were no prior similar accidents in which a forklift operator was injured in a tip over caused by tire failure. The evidence, contrary to plaintiff’s argument on appeal, is relevant. Among the factors that may be considered by the jury in evaluating the risks and benefits of a product design is “the likelihood that such danger would occur.” (Barker, supra, 20 Cal.3d at p. 431.) Evidence of a product’s safety record or accident rate is pertinent to this factor. (Torres v. Xomox Corp. (1996) 49 Cal.App.4th 1, 20-21.) The absence of similar accidents, however, is not conclusive proof that the forklift design was not defective. A low likelihood of danger, as evidenced by a “very low rate of accidents[,]” is “only one factor in determining the safety of a product’s design.” (Ibid.) The “gravity of the danger” is also relevant, among other factors. (Barker, supra, 20 Cal.3d at p. 431; Torres, supra, at p. 21.) While catastrophic tire failure may be infrequent, it poses a grave danger. Tire failure creates a “tripping point” that forces a tip over. Tip overs are “the number one death hazard for forklift operators.”
Toyota’s evidence of no prior similar accidents was also founded upon an arguably limited product history. Toyota relies upon evidence that it has no record of a catastrophic rear tire failure on any of the 75,000 to 80,000 Series 7 forklifts it has manufactured. However, there are various types and sizes of Series 7 forklifts and plaintiff established that the number of Series 7 forklifts of the same size as the subject forklift was far fewer than 75,000. It was estimated that there were only about 315 forklifts of the same model as the subject forklift that were equipped with solid tires and in operation for a comparable time when plaintiff’s accident occurred. Plaintiff maintained that the absence of similar accidents was not an attribute of the safety of the forklift design, but a result of the limited number of comparable products.
The jury considered this evidence, along with the evidence of benefits conferred by the SAS suspension mechanism in forklift handling and worker productivity. The jury concluded that the benefits of the forklift’s design did not outweigh the risks of the design. It is not our place to reweigh the evidence. (Hasson v. Ford Motor Company, supra, 32 Cal.3d at p. 398.) It is enough that there is sufficient evidence to support the conclusion reached by the jury. (Ibid.)
F. Alleged juror misconduct
Toyota claims that a juror who voted in its favor introduced extraneous information about workers’ compensation when advocating for Toyota during deliberations, and that the information unintentionally prejudiced the other jurors against Toyota. The workers’ compensation system provides compensation for workplace injuries and, generally, workers’ compensation is the sole and exclusive remedy of an employee against the employer. (Lab. Code, § 3600, 3602.) Toyota argues that a juror wrongly introduced concepts underlying the exclusive remedy rule during deliberations when she urged her fellow jurors not to award damages to plaintiff because plaintiff’s employer was the party at fault and the employer “will escape all of the responsibility and pay none of the awards” to plaintiff because plaintiff received workers’ compensation. While the juror implored the jury not to award damages that the culpable employer would not have to pay, Toyota argues that introduction of the exclusive remedy rule induced the jury to award damages so that plaintiff would get more than workers’ compensation.
We conclude, as did the trial court, that no extraneous information was introduced. Workers’ compensation was an issue at trial. While the jury was not instructed specifically on the exclusive remedy rule, evidence and instruction concerning workers’ compensation was presented at trial. Also, many people know about workers’ compensation from everyday life and experience. The juror’s statements challenged on appeal reflect information obtained from courtroom proceedings and common knowledge, not forbidden extraneous sources.
G. Factual background: jury deliberations
Presentation of the case concluded late on the afternoon of Wednesday, February 2, 2005, and the jury began deliberations in earnest on February 3, 2005. After two full days of deliberation the jury recessed for the weekend. Over the weekend, a juror (juror 7) independently wrote a two and a half page memorandum and read it to her fellow jurors on Monday morning, when deliberations first resumed.
In challenging the validity of a jury’s verdict, proof of overt acts during deliberations is admissible, but not proof of the subjective reasoning process of individual jurors. (Evid. Code, § 1150, subd. (a); Hasson v. Ford Motor Company, supra, 32 Cal.3d at pp. 413-414.) The fact that the memorandum was read to the jury is admissible as an objective fact. (In re Stankewitz (1985) 40 Cal.3d 391, 398.) But no evidence is admissible to show the effect of the memorandum on the minds of the jurors. (Hasson, supra, at p. 413.)
The memorandum stated that plaintiff and his employer, Forward Air, were responsible for the accident, not defendants. Juror 7 opened her memorandum by expressing her “concern” that the jury was “on the path toward a great injustice” in assigning any blame to Toyota and the tire manufacturer, companies she characterized as “leaders in their industries [that] have produced good products that have modernized and benefited both industry and indirectly, the lives of all of us.” The juror said finding defendants liable would be a “serious error that will injure innocent companies that produced innovative products, and cost ALL of us in higher insurance rates, more costly products, and a business environment that is sending business away from our country.”
Juror 7’s memorandum analyzed a number of evidentiary points. Juror 7 first asked her fellow jurors: “Do we realize that Forward Air is a plaintiff, not a defendant?” (All italics, bold script, and underlining deleted.) The juror said, of the three companies in the case, that “we all seem to agree” that Forward Air is at fault. Yet, the juror noted, Forward Air “will not pay any of the money we seem willing to give away” because of its position “not as [a] defendant but as fellow plaintiff with Feliciano.” She stated: “Forward Air will escape all of the responsibility and pay none of the awards to Paul Feliciano in this lawsuit.” (Bold script deleted.) Juror 7 said that there was “no clear evidence” of a manufacturer defect while there was evidence that Forward Air did not train its employees or enforce safe work procedures. The juror observed that “[t]here was far more evidence that the damage may have happened to those tires while they were at Forward Air.”
The juror then discussed the forklift SAS mechanism’s utility in reducing tip overs, and the low incidence of Toyota forklift accidents. She concluded that plaintiff was injured because he violated Toyota’s product safety instructions. Juror 7 said there was no evidence of a flawed tire and repeated that the tire was damaged by operational misuse. The juror noted that the jury had discussed awarding at least $5 million, and said that such an award would make plaintiff “a truly wealthy man, in the top 1/10th of the 1% of Americans.” She argued that plaintiff was not an “invalid for life,” and named a number of famous people who overcame disabilities.
Juror 7 asked: “Why is this case in San Mateo County Court at all rather than being handled by Workers[’] Compensation as other workplace injuries are handled. Is it simply because a tort lawyer has gotten hold of this case and is determined to extract a huge amount from companies that produce good products because they are the ‘Deep Pockets’[] so the plaintiff’s attorney can take his one/third to one/half bite out of what we decide to give away?” The juror reminded her fellow jurors that the judge “instructed us that sympathy is NOT to be a factor,” and asked: “Are we tempted to play God with someone else’s money? Is it because they are a ‘big corporation?’ ”
Juror 7 noted that she had tentatively agreed that Toyota “might possibly be responsible to a tiny degree, a tiny sliver of ‘fault[,]’ perhaps 1%” but now regretted that agreement and may need to retract her vote. Juror 7 closed with her opinion that “what made America what it is, was hard work, individual responsibility and initiative, not Tort lawyers suing good companies that produce good products.” She observed that “[t]he parties that seem to have been irresponsible are the 2 plaintiffs, NOT the 2 defendants.”
In a later declaration, juror 7 also described other statements she made during jury deliberations in addition to the statements contained in the memorandum. Juror 7 declared she “told the jury that when a plaintiff accepts Workmen’s Compensation, their employer cannot be sued in regular court. I specifically told the jury that because Mr. Feliciano accepted Workmen’s Compensation, Forward Air was free of any liability to Mr. Feliciano for the injuries he suffered in his forklift accident while employed by Forward Air.”
The jury’s deliberations continued after juror 7 read her memorandum on Monday morning, February 7, 2005, and the jury reached its verdict later that afternoon. Juror 7 was a dissenting juror, who voted in favor of Toyota. She found that Toyota’s forklift was not used or misused in a way that was reasonably foreseeable to Toyota; that the forklift’s design was not a substantial factor in causing harm to plaintiff; and that the benefits of the forklift’s design outweighed the risks of the design.
H. The juror’s memorandum of her thoughts to her fellow jurors was not misconduct
A juror may prepare a written statement of his or her views of the evidence during a recess in deliberations and read it to the jury when it is reconvened. (Bormann v. Chevron USA, Inc. (1997) 56 Cal.App.4th 260, 261-265.) In Bormann, no misconduct was found where a juror used a weekend recess in deliberations to write a two and one-half page statement of her views of the evidence, and read the statement to the jury when deliberations resumed. (Id. at pp. 261-262.). There is nothing improper in a juror pondering the case outside the jury room, reducing thoughts to writing, and later sharing those thoughts during deliberations. (Id. at pp. 262-265.)
However, “the introduction of extraneous law, whether erroneous or not, constitutes misconduct.” (People v. Marshall (1990) 50 Cal.3d 907, 950.) A juror must apply the law laid down by the court and should not consult an outside source on questions of law or convey to other jurors legal principles gained from specialized, professional experience. (In re Stankewitz, supra, 40 Cal.3d at pp. 399-400.) But jurors are not ciphers; they may know about the law from everyday life and experience and it is not misconduct to use that knowledge during deliberations. (People v. Marshall, supra, at p. 950.)
“ ‘[T]he introduction of much of what might strictly be labeled “extraneous law” cannot be deemed misconduct. The jury system is an institution that is legally fundamental but also fundamentally human. Jurors bring to their deliberations knowledge and beliefs about general matters of law and fact that find their source in everyday life and experience. That they do so is one of the strengths of the jury system. It is also one of its weaknesses; it has the potential to undermine determinations that should be made exclusively on the evidence introduced by the parties and the instructions given by the court. Such a weakness, however, must be tolerated. “[I]t is an impossible standard to require . . . [the jury] to be a laboratory, completely sterilized and freed from any external factors.” [Citation.] Moreover, under that “standard” few verdicts would be proof against challenge.’ [Citation.] ‘The safeguards of juror impartiality . . . are not infallible; it is virtually impossible to shield jurors from every contact or influence that might theoretically affect their vote.’ ” (People v. Danks (2004) 32 Cal.4th 269, 302-303.)
There is no evidence that juror 7 consulted an outside source when preparing her memorandum. On Toyota’s motion for new trial, juror 7 expressly declared that she “independently drafted” the memorandum. Nor is there any evidence that juror 7 injected specialized, professional knowledge about the law into the deliberations. Juror 7 was a retired school teacher. The record shows, instead, that juror 7’s statements about workers’ compensation were derived from courtroom proceedings and common knowledge.
The parties’ agreed statement of the case read to the jury expressly stated that plaintiff’s employer, Forward Air, paid workers’ compensation to plaintiff Feliciano and intervened in the action as a fellow plaintiff for reimbursement from defendants. The statement identified Feliciano as “[t]he plaintiff,” and “his employer” Forward Air as “[t]he plaintiff in intervention.” While the parties’ agreed statement did not recite the exclusive remedy rule of workers’ compensation law, the statement did make it clear that Forward Air was a plaintiff making a claim for money, not a defendant who would pay money: “Mr. Feliciano filed this lawsuit to recover damages that resulted from an industrial incident that occurred on January 17, 2003. Forward Air filed its claim to recover workers[’] compensation benefits it paid to and on behalf of Mr. Feliciano as a result of that incident.”
The fact that Forward Air had the status of a plaintiff was reinforced throughout the month-long trial. Forward Air took the position of a plaintiff in the order in which opening statements, closing arguments, and evidence were presented. Forward Air’s attorney also sat at the plaintiff table in the courtroom throughout the proceedings.
Workers’ compensation was a subject of witness testimony, attorney’s statements to the jury, and the court’s instructions. A workers’ compensation claims adjuster testified that plaintiff Feliciano was paid over $200,000 on behalf of his employer, Forward Air. Forward Air’s attorney, in his opening statement to the jury, described the workers’ compensation expenditures and said: “We will be asking you at the conclusion of this trial for your verdict reimbursing Forward Air for its expenditures which we have made to date on behalf of Mr. Feliciano.” The tire manufacturer’s attorney also discussed workers’ compensation in his opening statement.
The trial court, at the hearing on Toyota’s motion for a new trial, referred to remarks in the opening statement by plaintiff Feliciano’s counsel about workers’ compensation. The parties have been unable to direct us to the referenced remarks in the record, and our record review has not located the remarks. The court may have been thinking of the opening statement by Forward Air’s counsel, or remarks made during jury selection for which we have no record on appeal. In any event, the record contains many references to workers’ compensation apart from the remarks of counsel the trial court recalled, perhaps imperfectly.
In closing argument, plaintiff Feliciano’s attorney explained to the jury that a damages award would not result in a double recovery because workers’ compensation benefits would be deducted from the award and reimbursed: “When you issue an award for Mr. Feliciano, you do not deduct what’s already been paid. . . . You include all the damages that he suffered and then [the judge] takes it away and makes the reimbursement to the compensation carrier. That’s why they are here, to get their money back. They paid under a system that’s a no fault system. All he has to prove to get his benefits is ‘Hey, I was injured at work period’ and they have to pay it period, but when it turns out somebody else is responsible then it’s just fair the workers’ comp gets their money back, but when you add up the total amount of damages you include everything and then the judge takes it out later.”
The jury instructions provided an extensive treatment of workers’ compensation law, and Forward Air’s status as a plaintiff seeking reimbursement. At the start of trial, the court informed the jury that Forward Air was “a plaintiff in intervention” who “seeks reimbursement” from Toyota and Sumitomo, the tire manufacturer, “for workers’ compensation benefits paid to Mr. Feliciano.” At the close of the evidence, the court instructed the jury “[t]here are two plaintiffs in this trial,” and “[e]ach plaintiff is entitled to separate consideration of his or its own claims.” The court explained the nature of those claims: “The evidence indicates that Mr. Feliciano has received certain workers’ compensation benefits by way of medical care and compensation for the same injury for which Mr. Feliciano seeks damages from Sumitomo and Toyota Industrial Equipment in this action and that these sums were paid by Forward Air’s compensation insurer. [¶] Payment of workers’ compensation benefits is based upon the fact that a compensable industrial injury occurred. It does not depend upon blame or fault. If Mr. Feliciano does not obtain a judgment in his favor, Mr. Feliciano is not required to repay his employer, Forward Air nor its insurer any amounts either of them paid to him or on his behalf. [¶] If you decide that Mr. Feliciano is entitled to judgment against Sumitomo and/or Toyota Industrial Equipment, you must award him damages and return your verdict in his favor in the amount so found without deducting the amount of compensation benefits paid to or for him. I will then assure that Forward Air’s reimbursement rights are protected.” (BAJI No. 15.10.) The court also instructed the jury that plaintiff Feliciano’s damages award would be reduced if the jury determined that either Feliciano or Forward Air was negligent, and that the court would calculate the reduction. (CACI No. 1207.)
Toyota acknowledges the jury’s receipt of explicit instructions on workers’ compensation law but argues that none of the instructions “conveyed the notion that Forward Air was immune from civil liability under the exclusive remedy rule.” Toyota views the jury instructions too narrowly. Toyota’s grievance lies with the fact that juror 7 told her fellow jurors that “Forward Air was free of any liability to Mr. Feliciano for the injuries he suffered in his forklift accident while employed by Forward Air.” While the jury instructions did not explicitly state that Forward Air was “free of any liability,” the instructions and other courtroom proceedings plainly informed the jury that Forward Air paid Feliciano for his workplace injury under a no-fault workers’ compensation system and was at trial seeking reimbursement of those payments. It was clear that Forward Air was a plaintiff prosecuting its own claim for money, not a defendant who could be held responsible for an award of damages.
While the courtroom proceedings may not have provided a full explication of workers’ compensation law and its exclusive remedy rule, the proceedings provided enough information from which juror 7 could derive her understanding of the law. Juror 7 also had her everyday life and experience to draw upon, and the basic principles of workers’ compensation are commonly understood. “The average reasonably well-informed person who may be called to serve upon a jury knows that a workman injured in his employment receives compensation.” (Sherillo v. Stone & Webster Engineering Corp. (1952) 110 Cal.App.2d 785, 789.) Toyota has failed to establish that juror 7 committed misconduct by introducing extraneous law into the jury deliberations.
IV. Disposition
The judgment is affirmed.
We concur: REARDON, ACTING P. J., RIVERA, J.