1 Attorneys For Defendant 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Defendant.

, (hereinafter DWMC) hereby moves in limine to exclude all testimony, evidence, and argument that DWMC is presumed to have known at all relevant times the scientifically unknown or unknowable alleged harmful characteristics or consequences of the
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IN THE SUPERIOR COURT OF THE STATE OF ARIZONA IN AND FOR THE COUNTY OF MARICOPA ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) NO.

Plaintiffs, vs. DOES I-X; et al., Defendants

DEFENDANTS MOTION IN LIMINE NO. 1 TO EXCLUDE EVIDENCE OF PRESUMED KNOWLEDGE AS TO SCIENTIFICALLY UNKNOWN OR UNKNOWABLE INFORMATION

DAEWOO MOTOR CO., LTD.'S MOTION IN LIMINE NO. 1 TO EXCLUDE EVIDENCE OF PRESUMED KNOWLEDGE AS TO SCIENTIFICALLY UNKNOWN OR UNKNOWALBE INFORMATION

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2001 Daewoo Nubira restraint system. This motion is supported by the attached Memorandum of Points and Authorities. DATED this ______ day of July, 20 .

By:_______________________________ Attorneys for Defendant

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MOTION IN LIMINE NO. 1 TO EXCLUDE EVIDENCE OF PRESUMED KNOWLEDGE AS TO SCIENTIFICALLY UNKNOWN OR UNKNOWALBE INFORMATION

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 I.

MEMORANDUM OF POINTS AND AUTHORITIES INTRODUCTION This case involves allegations of a defective restraint system in a 2001 Daewoo Nubira, which was involved in a motor vehicle accident on or about May 17, 2002, in Wikieup, Arizona. Plaintiffs on their own behalf and as next friend of XXXX (hereinafter Plaintiffs) allege that the 2001 Daewoo Nubira restraint system (hereinafter subject restraint system) was defective, unfit, and unreasonably dangerous for its foreseeable use and further that Defendant XXXXX (hereinafter DWMC) failed to provide adequate warnings and adequate instructions concerning its use, maintenance, and repair. In its answer filed with this Court on November 4, 2004, DWMC pleaded state of the art as an affirmative defense to the foregoing allegations under Arizona Revised Statutes section 12-683(1). Plaintiffs and their experts intend to introduce evidence and argument that DWMC is presumed to have known the facts that this accident has revealed about the alleged harmful characteristics of the design and foreseeable use of the subject restraint system. Such a presumption, commonly referred to as the hindsight test, violates the state of the art defense in that it essentially impedes a defendants right to present state of the art evidenceevidence that the subject restraint systems alleged danger was scientifically undiscoverable at the time DWMC sold the 2001 Daewoo Nubira. In fact, the intended effect of a state of the art defense is to permit a defendant to rebut the presumption of knowledge of its products alleged harmful propensities by proving the impossibility of knowledge, even by experts in the field. Accordingly, DWMC requests that the Court exclude all testimony, evidence, and argument of presumed knowledge upon DWMC of any alleged harmful characteristics scientifically unknown or unknowable by DWMC at the time of manufacture or distribution of the subject restraint system. II. STATE OF THE ART IS A VIABLE DEFENSE IN ARIZONA ALLOWING DEFENDANTS TO INTRODUCE EVIDENCE THAT A PRODUCTS ALLEGED DANGER WAS SCIENTIFICALLY UNDISCOVERABLE AT THE TIME OF MANUFACTURE
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MOTION IN LIMINE NO. 1 TO EXCLUDE EVIDENCE OF PRESUMED KNOWLEDGE AS TO SCIENTIFICALLY UNKNOWN OR UNKNOWALBE INFORMATION

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In any product liability action, a defendant will not be liable if the defendant proves that the alleged defect in the product is alleged to result from inadequate design or fabrication, and if the plans or designs for the product or methods and techniques of manufacturing, inspecting, testing, and labeling the product conformed with the state of the art at the time the product was first sold by the defendant. (Arizona Revised Statutes section 12-683(1)) Arizona courts have widely upheld use of state of the art defense in product liability actions. In Kelly Deyoe v. Clark Equipment Company, Inc.,1 the plaintiff argued on appeal that the trial court erred in admitting state of the art evidence in a defective design product liability case. The Arizona Appellate Court disagreed with plaintiff and stated that state of the art and industry standards may be considered in strict liability cases to determine whether a product is in a defective condition.2 The Court reasoned that if a plaintiff in a design defect case can attempt to prove a defect by introducing evidence of feasible alternative designs, then a defendant should be allowed to show that a given alternative design is not required by federal regulations.3 This rationale was echoed in Fred Piper v. Bear Medical Systems, Inc.,4 a case in which plaintiffs wife had died due to a defective ventilator. In Piper, the Arizona Appellate Court again acknowledged that a defendant shall not be held liable for a defective product if the product conformed to the state of the art at the time the product was first sold by the defendant.5 The Court stated that under Arizona Revised Statutes section 12-683(6) state of the art is defined as the technical, mechanical and scientific knowledge of manufacturing, designing, testing or labeling the same or similar product which was in existence and reasonably feasible for use at the time of manufacture.6 (emphasis added) Accordingly, the Court found that since the defendant manufacturer conceded that economically feasible technology existed at the time of manufacture and since alternative designs represented accepted state of the art, the lower courts

134 Ariz. 281 (1982).. Id., at 285. 3 Id. 4 180 Ariz. 170 (1993). 5 Id., at 178. 6 Id.
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MOTION IN LIMINE NO. 1 TO EXCLUDE EVIDENCE OF PRESUMED KNOWLEDGE AS TO SCIENTIFICALLY UNKNOWN OR UNKNOWALBE INFORMATION

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finding that the ventilator did not conform to the state of the art was justified. III. EVIDENCE OF PRESUMED KNOWLEDGE WHEN THE ALLEGED

HARMFUL CHARACTERISTICS WAS SCIENTIFICALLY UNKNOWN OR UNKNOWABLE ABOLISHES ARIZONAS LONG STANDING STATE OF THE ART DEFENSE The effect of presumed knowledge of a products alleged harmful characteristics is to impute such knowledge upon a defendant thereby abolishing any viable state of the art defense. Such a result would make a manufacturer a virtual insurer of its products safe use a result that is not consistent with established principles of strict liability. (Carl Anderson v. Owens-Corning Fiberglas Corporation, et al., (1991) 53 Cal.3d 987.) Accordingly, the presumption does not apply, and should not apply, if a manufacturer or seller can present evidence that the alleged harmful characteristics of the products design was neither known nor knowable by the application of scientific knowledge available at the time of manufacture and/or distribution. In the context of a failure to warn case, the Court in Anderson held that knowledge, actual or constructive, of a potential risk or danger is required before imposing strict liability for a failure to warn.7 (emphasis added) In Anderson, plaintiff allegedly contracted asbestosis through exposure to asbestos while working at the Long Beach Naval Shipyard and alleged that defendant manufacturers of the asbestos products failed to warn users of the risk of danger. Defendants raised state of the art as a defense and claimed that even those with scientific knowledge at the time the products were sold could not have known that asbestos was dangerous to its users. Plaintiff argued however, that knowledge or knowability, and thus state of the art evidence is irrelevant in strict liability cases for failure to warn. The Court disagreed and found that the reason for a manufacturers failure to warn unknowability is relevant to the imposition of strict liability.8 As the Court stated, how can one warn of something that is unknowable?9
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Anderson,supra at 991. Id., at 997. 9 Id., at 1002.

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MOTION IN LIMINE NO. 1 TO EXCLUDE EVIDENCE OF PRESUMED KNOWLEDGE AS TO SCIENTIFICALLY UNKNOWN OR UNKNOWALBE INFORMATION

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According to the Court in Anderson, the elimination of the knowledge component has the effect of turning strict liability into absolute liability.10 The Court expressed this concern and stated that strict liability . . . was never intended to make the manufacturer or distributor of a product its insurer.11 (emphasis added) The Court noted the majority view, which requires knowability and concluded that a defendant in a strict products liability failure to warn case may present evidence of the state of the art that the particular risk was neither known or knowable by the application of scientific knowledge available at the time of manufacture and/or distribution.12

IV.

CONCLUSION Based on the foregoing, DWMC seeks an order precluding any all testimony, evidence,

and argument that DWMC is presumed to have known at all relevant times the scientifically unknown or unknowable alleged harmful characteristics of the 2001 Daewoo Nubira restraint system.

By:_______________________________ Attorneys for Defendant

Id. Id., at 994. 12 Id., at 1004.

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MOTION IN LIMINE NO. 1 TO EXCLUDE EVIDENCE OF PRESUMED KNOWLEDGE AS TO SCIENTIFICALLY UNKNOWN OR UNKNOWALBE INFORMATION