TERNUS, Justice.

            The United States District Court for the Northern District of Iowa has certified eight questions to this court arising out of a personal injury action filed by a smoker against several cigarette manufacturers. The certified questions address the nature and extent of the manufacturers' liability under products liability, warranty and tort law. In general, our answers can be summarized as follows: (1) in a design defect products liability case, Iowa applies the test set forth in Restatement (Third) of Torts: Product Liability sections 1 and 2 (1998); (2) a civil conspiracy claim may be based on conduct that does not constitute an intentional tort; (3) a product manufacturer's failure to warn or disclose material information will support a fraud claim by a customer only when disclosure is necessary to prevent a prior representation from being misleading; (4) a product manufacturer's advertisements and statements do not constitute an undertaking so as to create a duty under Restatement (Second) of Torts section 323 (1965); and (5) a cigarette manufacturer has no warranty or tort liability to a smoker based on a manufacturing defect when the cigarettes smoked by the plaintiff were in the condition intended by the manufacturer.

I. Factual and Procedural Background.

            The plaintiffs, Robert and DeAnn Wright, filed a petition against the defendants, 163*163 all cigarette manufacturers, alleging they had been damaged as a result of Robert's cigarette smoking. (For the sake of simplicity, we will refer only to the plaintiff, Robert Wright, in the remainder of this opinion.) The specific claims made by the plaintiff include (1) negligence, (2) strict liability, (3) breach of implied warranty, (4) breach of express warranty, (5) breach of special assumed duty, (6) fraudulent misrepresentation, (7) fraudulent nondisclosure, and (8) civil conspiracy. The defendants filed a motion to dismiss that was largely overruled by the federal district court. See Wright v. Brooke Group Ltd., 114 F.Supp.2d 797, 838 (N.D.Iowa 2000).

            Thereafter, the defendants asked the federal court to certify questions of law to the Iowa Supreme Court pursuant to Iowa Code section 684A.1 (2001). Concluding the case presented several questions of state law that are potentially determinative and as to which there is either no controlling precedent or the precedent is ambiguous, the district court certified eight questions to this court.

The questions certified are:

1. In a design defect products liability case, what test applies under Iowa law to determine whether cigarettes are unreasonably dangerous? What requirements must be met under the applicable test?

2. Under Iowa law, can Defendants rely on Comment i of § 402A of the Restatement (Second) of Torts to show that cigarettes are not unreasonably dangerous?

3. Under Iowa law, does the common knowledge of the health risks associated with smoking, including addiction, preclude tort and warranty liability of cigarette manufacturers to smokers because cigarettes are not unreasonably dangerous insofar as the risks are commonly known? If yes, then:

a. [During] what period of time would such knowledge be common?

b. Is there a duty to warn of the risks associated with smoking cigarettes in light of such common knowledge?

c. Is reliance on advertisements, statements or representations suggesting that there are no risks associated with smoking, including addiction, justifiable in light of such common knowledge?

4. Under Iowa law, can Plaintiffs bring a civil conspiracy claim arising out of alleged wrongful conduct that may or may not have been an intentional tort — i.e., strict liability for manufacturing a defective product or intentionally agreeing to produce an unreasonably dangerous product?

5. Under Iowa law, can a manufacturer's alleged failure to warn or to disclose material information give rise to a fraud claim when the relationship between a Plaintiff and a Defendant is solely that of a customer/buyer and manufacturer?

6. Does an "undertaking" arise under § 323 of the Restatement (Second) of Torts, as adopted in Iowa, by reason of a product manufacturer's advertisements or statements directed to its customers?

7. Does Iowa law allow a Plaintiff to recover from a cigarette manufacturer under a manufacturing defect theory when the cigarettes smoked by Plaintiff were in the condition intended by the manufacturer?

8. Does Iowa law allow Plaintiff to recover from a cigarette manufacturer for breach of implied warranty of merchantability when the cigarettes smoked by Plaintiff were in the condition intended by the manufacturer and Plaintiff alleges 164*164 Defendants' cigarettes are "substantially interchangeable"?

We will answer the questions in the order propounded.

II. In a Design Defect Products Liability Case, What Test Applies Under Iowa Law to Determine Whether Cigarettes Are Unreasonably Dangerous? What Requirements Must Be Met Under the Applicable Test?

A. Iowa law governing strict liability for defective products. 

            The Iowa Supreme Court first applied strict liability in tort for a product defect in 1970, adopting Restatement (Second) of Torts section 402A (1965). Hawkeye-Sec. Ins. Co. v. Ford Motor Co., 174 N.W.2d 672, 684 (Iowa 1970). Section 402A provides:

Special Liability of Seller of Product for Physical Harm to User or Consumer:

(1) one who sells any product in a defective condition unreasonably dangerous to the user or consumer or to his property is subject to liability for physical harm thereby caused to the ultimate user or consumer, or to his property, if

(a) the seller is engaged in the business of selling such a product, and

(b) it is expected to and does reach the user or consumer without substantial change in the condition in which it is sold.

(2) The rule stated in Subsection (1) applies although

(a) the seller has exercised all possible care in the preparation and sale of his product, and

(b) the user or consumer has not bought the product from or entered into any contractual relation with the seller.

            Restatement (Second) of Torts § 402A. Our purpose in adopting this provision was to relieve injured plaintiffs of the burden of proving the elements of warranty or negligence theories, thereby insuring "`that the costs of injuries resulting from defective products are borne by the manufacturers that put such products on the market.'" Hawkeye-Sec. Ins. Co., 174 N.W.2d at 683 (citation omitted).

            Consistent with this purpose we held that a plaintiff seeking to recover under a strict liability theory need not prove the manufacturer's negligence. Id. at 684. Moreover, we concluded that application of strict liability in tort was not exclusive and did not "`preclude liability based on the alternative ground of negligence, when negligence could be proved.'" Id. at 685 (citation omitted). Although Hawkeye-Security was a manufacturing defect case, id. at 676-77, our opinion implied that strict liability in tort was applicable to design defects as well, id. at 684 (quoting authority that strict liability is applicable when "the defect arose out of the design or manufacture" of the product).

            In Aller v. Rodgers Machinery Manufacturing Co., a design defect case, our court discussed in more detail the test to be applied in strict liability cases. 268 N.W.2d 830, 832 (Iowa 1978). In that case, the plaintiff asked the court to eliminate the "unreasonably dangerous" element of strict products liability, arguing that to require proof that the product was unreasonably dangerous injected considerations of negligence into strict liability, thwarting the purpose of adopting a strict liability theory. Id. at 833-34. We rejected the plaintiff's request to eliminate the "unreasonably dangerous" element, concluding the theories of strict liability and negligence were distinguishable:

In strict liability the plaintiff's proof concerns the condition (dangerous) of a product which is designed or manufactured in a particular way. In negligence the proof concerns the reasonableness of 165*165 the manufacturer's conduct in designing and selling the product as he did.

In strict liability the plaintiff takes the design as it was finalized in the finished product and shows it was both dangerous and that it was unreasonable to subject the user to this danger because the user would not contemplate the danger in the normal and innocent use of the product or consumption of the product. In negligence the plaintiff shows the manufacturer was unreasonable in designing the product as he did.

Id. at 835 (citation omitted).

            These articulated distinctions were, however, somewhat obscured by this court's explanation of the proof required in a strict liability case. Relying on comment i to section 402A, we held that a plaintiff seeking to prove a product was in a "defective condition unreasonably dangerous" must show that the product was "dangerous to an extent beyond that which would be contemplated by the ordinary consumer who purchases it, with the ordinary knowledge common to the community as to its characteristics." Id. at 834 (quoting Restatement (Second) of Torts § 402A cmt. i). We went on, however, to discuss how the plaintiff is to prove the defective condition was unreasonably dangerous:

In order to prove that a product is unreasonably dangerous, the injured plaintiff must prove the product is dangerous and that it was unreasonable for such a danger to exist. Proof of unreasonableness involves a balancing process. On one side of the scale is the utility of the product and on the other is the risk of its use.

Whether the doctrine of negligence or strict liability is being used to impose liability the same process is going on in each instance, i.e., weighing the utility of the article against the risk of its use.

            Id. at 835 (emphasis added). Two conclusions can be drawn from our discussion in Aller: (1) the legal principles applied in a strict liability case include both a consumer expectation or consumer contemplation test and a risk/benefit or risk/utility analysis; and (2) the risk/benefit analysis employed in a strict liability design defect case is the same weighing process as that used in a negligence case.

            Since Aller, this court has varied in its application of the tests set forth in that decision, sometimes applying both tests and sometimes applying only the consumer expectation test. On the other hand, we have continued to equate the strict liability risk/benefit analysis used in a design defect case with that applied in a design negligence case.

            In Chown v. USM Corp., 297 N.W.2d 218, 220 (Iowa 1980), a design defect case, we noted that proof of unreasonable danger was an essential element under both strict liability and negligence. We also observed there were two tests to determine this element, a consumer expectation test and a risk/benefit analysis. Chown, 297 N.W.2d at 220-21. This court then proceeded to apply both tests in deciding the trial court had not erred in ruling that the plaintiff failed to prove the essential element of unreasonable danger. Id. at 221. Finding no error, we held the absence of an "unreasonably dangerous" product was fatal to both the plaintiff's design negligence and strict liability design defect claims. Id.

            In Fell v. Kewanee Farm Equipment Co., 457 N.W.2d 911, 916-18 (Iowa 1990), this court again applied both the consumer expectation and risk/benefit tests in a strict liability design defect case. Accord Mercer v. Pittway Corp., 616 N.W.2d 602, 619-20 (Iowa 2000) (applying both tests). In contrast, some of our cases appear to analyze the element of "unreasonably dangerous" 166*166 under the consumer expectation test alone. See Weyerhaeuser Co. v. Thermogas Co., 620 N.W.2d 819, 828 (Iowa 2000) (applying consumer expectation test without comment on risk/utility analysis); Maguire v. Pabst Brewing Co., 387 N.W.2d 565, 569-70 (Iowa 1986) (same).

            One final development in products liability law in Iowa is worth mentioning before we address the precise issue in this case. In Olson v. Prosoco, 522 N.W.2d 284 (Iowa 1994), this court rejected the distinction between negligence and strict liability claims first articulated in Aller. Olson, 522 N.W.2d at 289. Examining a failure-to-warn case, we abandoned the analysis that differentiated strict liability from negligence on the basis that negligence focuses on the defendant's conduct while strict liability focuses on the condition of the product. Id. We concluded that "[i]nevitably the conduct of the defendant in a failure to warn case becomes the issue," and therefore, the product/conduct distinction had "little practical significance." Id. Our acknowledgement that the test for negligence and strict liability were in essence the same led this court to discard the theory of strict liability in failure-to-warn cases and hold that such claims should be submitted under a theory of negligence only. Id.

            With this abbreviated review of the current status of Iowa product liability law in mind, we turn now to the parties' arguments on the question of the applicable test for determining whether cigarettes are unreasonably dangerous.

B. Arguments of parties. 

            The parties disagree as to whether the consumer contemplation test and the risk/benefit analysis are alternative tests or whether both apply in all product defect cases. Assuming the tests are alternative, the parties also differ on which test applies to cigarette cases.

            The defendants assert that only the consumer contemplation test of comment i to section 402A should be used to determine whether cigarettes are unreasonably dangerous. Their desire for this test stems from their related argument that common knowledge of the risks of cigarette smoking precludes a finding that cigarettes are dangerous "to an extent beyond that which would be contemplated by the ordinary consumer." Restatement (Second) of Torts § 402A cmt. i. The defendants argue that the risk/utility test should not be applied because it was designed for those products, unlike cigarettes, "about which the ordinary consumer would not normally have an expectation of safety or dangerousness."

            The plaintiff contends both the consumer contemplation and risk/utility tests apply in design defect cases to determine whether a product is unreasonably dangerous. Alternatively, he suggests this case presents an appropriate opportunity for the court to adopt the principles of law set forth in section 2 of Restatement (Third) of Torts: Product Liability [hereinafter "Products Restatement"]. As a final option, he argues that "[s]ince the cigarette companies disputed for decades that their products were dangerous, [cigarettes] would not be products for which consumers would normally have an expectation of safety or dangerousness decades in the past," thus qualifying for the risk/utility test under the analytical scheme proposed by the defendants.

C. Discussion. 

            In determining what test should be applied in assessing whether cigarettes are unreasonably dangerous, we are confronted with the anomaly of using a risk/benefit analysis for purposes of strict liability based on defective design that is identical to the test employed in proving negligence in product 167*167 design. See Hillrichs v. Avco Corp., 478 N.W.2d 70, 75 (Iowa 1991) (noting, with respect to allegation of enhanced injury due to a design defect, that standards applied in that case "make the strict liability claim depend on virtually the same elements of proof as are required to establish the negligence claim"), overruled on other grounds by Reed v. Chrysler Corp., 494 N.W.2d 224, 230 (Iowa 1992). This incongruity has drawn our attention once again to the "debate over whether the distinction between strict liability and negligence theories should be maintained when applied to a design defect case." Lovick v. Wil-Rich, 588 N.W.2d 688, 698 (Iowa 1999). We are convinced such a distinction is illusory, just as we found no real difference between strict liability and negligence principles in failure-to-warn cases. See Olson, 522 N.W.2d at 289; Jones v. Hutchinson Mfg., Inc., 502 S.W.2d 66, 69-70 (Ky.1973) (finding no difference between standards of conduct under strict liability and negligence in design defect case: "In either event the standard required is reasonable care."). See generally David Owen, Products Liability Law Restated, 49 S.C. L.Rev. 273, 286 (1998) ("It long has been an open secret that, while purporting to apply `strict' liability doctrine to design and warnings cases, courts in fact have been applying principles that look remarkably like negligence.") [hereinafter "Owen"]. Because the Products Restatement is consistent with our conclusion, we think it sets forth an intellectually sound set of legal principles for product defect cases.

            Before we discuss these principles, we first explain our dissatisfaction with the consumer expectation test advocated by the defendants. As one writer has suggested, the consumer expectation test in reality does little to distinguish strict liability from ordinary negligence:

The consumer expectations test for strict liability operates effectively when the product defect is a construction or manufacturing defect.... An internal standard exists against which to measure the product's condition — the manufacturer's own design standard. In essence, a product flawed in manufacture frustrates the manufacturer's own design objectives. Liability is imposed on manufacturers in these cases even if the manufacturer shows it acted reasonably in making the product....

When the claim of defect is based on the product's plan or design, however, the consumer expectations test is inadequate. The test seems to function as a negligence test because a consumer would likely expect the manufacturer to exercise reasonable care in designing the product and using the technology available at that time.... Although the consumer expectations test purports to establish the manufacturer's conduct is unimportant, it does not explain what truly converts it into a standard of strict liability.

            Keith Miller, Design Defect Litigation in Iowa: The Myths of Strict Liability, 40 Drake L.Rev. 465, 473-74 (1991). We agree that the consumer contemplation test is inadequate to differentiate a strict liability design defect claim from a negligent design case. Cf. Olson, 522 N.W.2d at 289 (concluding there was no real difference between the tests used in negligent failure to warn and strict liability based on a failure to warn, noting "[i]nevitably the conduct of the defendant ... becomes the issue"). Consequently, any attempts to distinguish the two theories in the context of a defective design are in vain. That brings us to the Products Restatement, which reflects a similar conclusion by its drafters.

            168*168 The Products Restatement demonstrates a recognition that strict liability is appropriate in manufacturing defect cases, but negligence principles are more suitable for other defective product cases. See 2 Dan B. Dobbs, The Law of Torts § 353, at 977 (2001) ("The effect ... of the Products Restatement is that strict liability is retained when it comes to product flaws, but negligence or something very much like it is the test of liability when it comes to design and warning defects.") [hereinafter "Dobbs"]; Daniel Givelber, Cigarette Law, 73 Ind. L.J. 867, 885 (1998) ("Some thirty years after the Restatement's [(Second) of Torts] apparent embrace of strict products liability, the dominant rule in American law appears to be that manufacturers are only strictly liable when they make a product different and more dangerous from that intended."). Accordingly, it "establish[es] separate standards of liability for manufacturing defects, design defects, and defects based on inadequate instructions or warnings." Products Restatement § 2 cmt. a, at 14. Initially, section 1 of the Products Restatement provides:

One engaged in the business of selling or otherwise distributing products who sells or distributes a defective product is subject to liability for harm to persons or property caused by the defect.

            Products Restatement § 1, at 5. The "unreasonably dangerous" element of section 402A has been eliminated and has been replaced with a multi-faceted definition of defective product. This definition is set out in section 2:

A product is defective when, at the time of sale or distribution, it contains a manufacturing defect, is defective in design, or is defective because of inadequate instructions or warning. A product:

(a) contains a manufacturing defect when the product departs from its intended design even though all possible care was exercised in the preparation and marketing of the product;

(b) is defective in design when the foreseeable risks of harm posed by the product could have been reduced or avoided by the adoption of a reasonable alternative design by the seller or other distributor, or a predecessor in the commercial chain of distribution, and the omission of the alternative design renders the product not reasonably safe;

(c) is defective because of inadequate instructions or warnings when the foreseeable risks of harm posed by the product could have been reduced or avoided by the provision of reasonable instructions or warnings by the seller or other distributor, or a predecessor in the commercial chain of distribution, and the omission of the instructions or warnings renders the product not reasonably safe.

Products Restatement § 2, at 14.

            The commentators give the following explanation for the analytical framework adopted in the Products Restatement:

In contrast to manufacturing defects, design defects and defects based on inadequate instructions or warnings are predicated on a different concept of responsibility. In the first place, such defects cannot be determined by reference to the manufacturer's own design or marketing standards because those standards are the very ones that the plaintiffs attack as unreasonable. Some sort of independent assessment of advantages and disadvantages, to which some attach the label "risk-utility balancing," is necessary. Products are not generically defective merely because they are dangerous. Many product-related accident costs can be eliminated only by excessively sacrificing product features that make products useful and desirable. Thus, the various trade-offs need to be 169*169 considered in determining whether accident costs are more fairly and efficiently borne by accident victims, on the one hand, or, on the other hand, by consumers generally through the mechanism of higher product prices attributable to liability costs imposed by the courts on product sellers.

            Products Restatement § 2 cmt. a, at 15-16. As we noted in Lovick, the Products Restatement has essentially "dropped the consumer expectation test traditionally used in the strict liability analysis and adopted a risk-utility analysis traditionally found in the negligence standard." Lovick, 588 N.W.2d at 698; accord Products Restatement § 2 cmt. n, at 36 ("Regardless of the doctrinal label attached to a particular claim, design and warning claims rest on a risk-utility assessment."); Owen, 49 S.C. L.Rev. at 285-86 ("Thus, the Products Liability Restatement grounds liability for design and warnings defects in the reasonableness-balancing-negligence concepts that properly dominate the law of tort.").

            In addition, the Products Restatement does not place a conventional label, such as negligence or strict liability, on design defect cases.

The rules in this Section and in other provisions of this Chapter define the bases of tort liability for harm caused by product defects existing at the time of sale or other distribution. The rules are stated functionally rather than in terms of traditional doctrinal categories. Claims based on product defect at time of sale or other distribution must meet the requisites set forth in Subsection (a), (b), or (c), or the other provisions in this Chapter. As long as these requisites are met, doctrinal tort categories such as negligence or strict liability may be utilized in bringing the claim.

            Products Restatement § 2 cmt. n, at 34-35. We question the need for or usefulness of any traditional doctrinal label in design defect cases because, as comment n points out, a court should not submit both a negligence claim and a strict liability claim based on the same design defect since both claims rest on an identical risk-utility evaluation. Id. at 36. Moreover, to persist in using two names for the same claim only continues the dysfunction engendered by section 402A. Therefore, we prefer to label a claim based on a defective product design as a design defect claim without reference to strict liability or negligence.

D. Conclusion. 

            In summary, we now adopt Restatement (Third) of Torts: Product Liability sections 1 and 2 for product defect cases. Under these sections, a plaintiff seeking to recover damages on the basis of a design defect must prove "the foreseeable risks of harm posed by the product could have been reduced or avoided by the adoption of a reasonable alternative design by the seller or other distributor, or a predecessor in the commercial chain of distribution, and the omission of the alternative design renders the product not reasonably safe." Id. § 2(b); accord Hawkeye Bank v. State, 515 N.W.2d 348, 352 (Iowa 1994) (requiring "proof of an alternative safer design that is practicable under the circumstances" in negligent design case); Hillrichs, 478 N.W.2d at 75 (requiring "proof of an alternative safer design" under a theory of enhanced injury caused by a design defect).

III. Under Iowa Law, Can Defendants Rely on Comment i of § 402A of the Restatement (Second) of Torts to Show That Cigarettes Are Not Unreasonably Dangerous?

            Comment i of section 402A addresses the "unreasonably dangerous" element of strict liability and sets forth the 170*170 consumer contemplation test considered above. It discusses the necessity of proof that the product is dangerous "to an extent beyond that which would be contemplated by the ordinary consumer who purchases it, with the ordinary knowledge common to the community as to its characteristics." Restatement (Second) of Torts § 402A cmt. i, at 352. In the course of this discussion, the comment states: "Good tobacco is not unreasonably dangerous merely because the effects of smoking may be harmful...." Relying on this statement, the defendants assert "[d]esign defect claims involving cigarettes fail as a matter of law because cigarettes are not unreasonably dangerous under comment i."

            Because we have abandoned section 402A and the requirement of unreasonably dangerous, comment i does not apply to the case before us. Therefore, the defendants cannot rely on the statement made in comment i pertaining to tobacco.

IV. Under Iowa Law, Does the Common Knowledge of the Health Risks Associated With Smoking, Including Addiction, Preclude Tort and Warranty Liability of Cigarette Manufacturers to Smokers Because Cigarettes Are Not Unreasonably Dangerous Insofar as the Risks Are Commonly Known?[1]

            Our initial answer to this question is that our adoption of sections 1 and 2 of the Products Restatement renders unnecessary any examination of the unreasonable dangerousness of cigarettes as that test is used in section 402A. Moreover, "consumer expectations do not constitute an independent standard for judging the defectiveness of product designs" under section 2. See Products Restatement § 2 cmt. g, at 27. Therefore, the common knowledge of consumers of the health risks associated with smoking does not necessarily preclude liability.

            Although consumer expectations are not the sole focus in evaluating the defectiveness of a product under the Products Restatement, consumer expectations remain relevant in design defect cases. Comment g to section 2 states:

[C]onsumer expectations about product performance and the dangers attendant to product use affect how risks are perceived and relate to forseeability and frequency of the risks of harm, both of which are relevant under Subsection (b). See Comment f. Such expectations are often influenced by how products are portrayed and marketed and can have a significant impact on consumer behavior. Thus, although consumer expectations do not constitute an independent standard for judging the defectiveness of product designs, they may substantially influence or even be ultimately determinative on risk-utility balancing in judging 171*171 whether the omission of a proposed alternative design renders the product not reasonably safe.

Subsection (b) likewise rejects conformance to consumer expectations as a defense. The mere fact that a risk presented by a product design is open and obvious, or generally known, and that the product thus satisfies expectations, does not prevent a finding that the design is defective. But the fact that a product design meets consumer expectations may substantially influence or even be ultimately determinative on risk-utility balancing in judging whether the omission of a proposed alternative design renders the product not reasonably safe. It follows that, while disappointment of consumer expectations may not serve as an independent basis for allowing recovery under Subsection (b), neither may conformance with consumer expectations serve as an independent basis for denying recovery. Such expectations may be relevant in both contexts, but in neither are they controlling.

            Id. § 2 cmt. g, at 27-28 (emphasis added). Thus, while consumer expectations are generally not determinative in a design defect case, they are one factor to be considered in deciding "whether an alternative design is reasonable and whether its omission renders a product not reasonably safe." Id. § 2 cmt. f, at 23.

Consumer knowledge also remains relevant to failure-to-warn claims.

In general, a product seller is not subject to liability for failing to warn or instruct regarding risks and risk-avoidance measures that should be obvious to, or generally known by, foreseeable product users. When a risk is obvious or generally known, the prospective addressee of a warning will or should already know of its existence. Warning of an obvious or generally known risk in most instances will not provide an effective additional measure of safety. Furthermore, warnings that deal with obvious or generally known risks may be ignored by users and consumers and may diminish the significance of warnings about non-obvious, not-generally-known risks. Thus, requiring warnings of obvious or generally known risks could reduce the efficacy of warnings generally. When reasonable minds may differ as to whether the risk was obvious or generally known, the issue is to be decided by the trier of fact.

Id. § 2 cmt. j, at 31.

            In summary, consumer knowledge is merely one factor in assessing liability for design defects or for failure to warn of product risks. We cannot say at this stage of the proceedings prior to any factual determination of the common knowledge of consumers during the relevant time frame whether such knowledge would, as a matter of law, preclude liability under the principles set forth in the Products Restatement.

V. Under Iowa Law, Can Plaintiffs Bring a Civil Conspiracy Claim Arising Out of Alleged Wrongful Conduct That May or May Not Have Been an Intentional Tort — i.e., Strict Liability for Manufacturing a Defective Product or Intentionally Agreeing to Produce an Unreasonably Dangerous Product?

            Under Iowa law, "[a] conspiracy is a combination of two or more persons by concerted action to accomplish an unlawful purpose, or to accomplish by unlawful means some purpose not in itself unlawful." Basic Chems., Inc. v. Benson, 251 N.W.2d 220, 232 (Iowa 1977). Our court has also relied on the principles stated in the Restatement (Second) of Torts section 876 to set the parameters of this claim:

172*172 Under the Restatement, a person becomes subject to liability for harm caused by the tortious conduct of another when that person: (a) does a tortious act in concert with the other or pursuant to a common design with the other (traditional conspiracy)....

            Ezzone v. Riccardi, 525 N.W.2d 388, 398 (Iowa 1994) (emphasis added) (citing Restatement (Second) of Torts § 876, at 315 (1979)). Under this theory of liability, "an agreement must exist between the two persons to commit a wrong against another." Id. (emphasis added).

            "Civil conspiracy is not in itself actionable; rather it is the acts causing injury undertaken in furtherance of the conspiracy [that] give rise to the action." Basic Chems., 251 N.W.2d at 233; accord Adam v. Mt. Pleasant Bank & Trust Co., 387 N.W.2d 771, 773 (Iowa 1986). Thus, conspiracy is merely an avenue for imposing vicarious liability on a party for the wrongful conduct of another with whom the party has acted in concert. See John's Insulation, Inc. v. Siska Constr. Co., 774 F.Supp. 156, 162 (S.D.N.Y.1991) ("Allegations of a civil conspiracy, therefore, are proper only for the purpose of establishing joint liability by co-participants in tortious conduct."); 2 Dobbs § 340, at 936-37 (characterizing cases applying a civil conspiracy theory as employing a model of vicarious liability). Thus, the wrongful conduct taken by a co-conspirator must itself be actionable. See John's Insulation, Inc., 774 F.Supp. at 161 ("A claimant must plead specific wrongful acts which constitute an independent tort."); Alexander & Alexander, Inc. v. B. Dixon Evander & Assocs., Inc., 88 Md.App. 672, 596 A.2d 687, 700 (1991) ("[T]he act (or means) need only be `of such a character as to create an actionable wrong.'" (citation omitted)); 16 Am.Jur.2d Conspiracy § 50, at 275-76 (1998) ("[I]f the acts alleged to constitute the underlying wrong provide no cause of action, then neither is there a cause of action for the conspiracy itself.").

            Although our cases applying a civil conspiracy theory involve agreements to commit an intentional tort, e.g., Revere Transducers, Inc. v. Deere & Co., 595 N.W.2d 751, 768 (Iowa 1999) (interference with contract); Ezzone, 525 N.W.2d at 392 (interference with contract); Adam, 387 N.W.2d at 775 (fraud); Basic Chems., 251 N.W.2d at 232 (unfair competition), our court has never held that a claim of civil conspiracy must be based on such an agreement. Moreover, our reliance on section 876 of the Restatement would seem to indicate an inclination to apply civil conspiracy whenever the underlying conduct was simply tortious. Although the Restatement (Second) of Torts takes no position on whether section 876 applies when the actor's conduct involves strict liability,[2] the comments to section 876 state "it is essential that the conduct of the actor be itself tortious." See Restatement (Second) of Torts § 876 cmt. c, at 316 (emphasis added); accord 2 Dobbs § 340, at 936 ("Conspiracy is not a tort in itself; it reflects the conclusion that each participant should be liable for the tortious course of conduct." (Emphasis added.)). In addition, the comments include an illustration predicated on conduct that does not necessarily include an intent to do harm. See Restatement (Second) of Torts § 876 cmt. a, illus. 1, at 316 (setting forth example involving co-conspirators who were racing on public highway).

            173*173 Notwithstanding the lack of support in general legal authorities for a requirement that the tortious conduct of the actor be intentional, some jurisdictions require that a civil conspiracy claim be based on an intentional tort, not simple negligence. E.g., Sonnenreich v. Philip Morris Inc., 929 F.Supp. 416, 419 (S.D.Fla.1996); Campbell v. A.H. Robins Co., 615 F.Supp. 496, 500 (W.D.Wis.1985); Altman v. Fortune Brands, Inc., 268 A.D.2d 231, 701 N.Y.S.2d 615, 615 (2000); N. Am. Van Lines, Inc. v. Emmons, 50 S.W.3d 103, 116 (Tex.App.2001); accord 16 Am.Jur.2d Conspiracy § 51, at 278 (1998). These authorities suggest that since civil conspiracy is an intentional tort, it is illogical to conclude that persons can conspire to commit negligence. E.g., Sonnenreich, 929 F.Supp. at 419; Campbell, 615 F.Supp. at 497. We think this reasoning is faulty.

            In Adcock v. Brakegate, Ltd., 164 Ill.2d 54, 206 Ill.Dec. 636, 645 N.E.2d 888 (1995), the plaintiff sued his former employer and its successor, alleging that his employer, a manufacturer of asbestos, conspired with other manufacturers to suppress information about the hazards of asbestos exposure. 206 Ill.Dec. 636, 645 N.E.2d at 891-92. In rejecting the defendant's argument that an action for civil conspiracy does not arise unless one of the conspirators commits an intentional tort in furtherance of the conspiracy, the court stated:

While a civil conspiracy is based upon intentional activity, the element of intent is satisfied when a defendant knowingly and voluntarily participates in a common scheme to commit an unlawful act or a lawful act in an unlawful manner. There is no such thing as accidental, inadvertent or negligent participation in a conspiracy. A defendant who innocently performs an act which happens to fortuitously further the tortious purpose of another is not liable under the theory of civil conspiracy. A defendant who understands the general objectives of the conspiratorial scheme, accepts them, and agrees ... to do its part to further those objectives, however, is liable as a conspirator. Once a defendant knowingly agrees with another to commit an unlawful act or a lawful act in an unlawful manner, that defendant may be held liable for any tortious act committed in furtherance of the conspiracy, whether such tortious act is intentional or negligent in nature.

Id. at 894-95 (citations omitted).

            We disagree with those courts that conclude an agreement to be negligent is a non sequitur. For example, the plaintiff in Adcock alleged "asbestos manufacturers engaged in an industrywide conspiracy to conceal and affirmatively misstate the hazards associated with asbestos exposure" and "performed tortious acts in furtherance of the conspiracy." Id. at 895. There is nothing illogical or nonsensical about this scenario: manufacturers agree to suppress information about their product for the lawful purpose of facilitating the sale of their product, and in effectuating this plan subject themselves to liability for failure to warn of the risks of using their product. So long as the underlying actionable conduct is of the type that one can plan ahead to do, it should not matter that the legal system allows recovery upon a mere showing of unreasonableness (negligence) rather than requiring an intent to harm.

            Amicus curiae argue that to adopt this position will greatly extend the reach of civil conspiracy claims in the area of products liability. They contend that under this theory "[e]very company that belongs to a trade association, industry group, or product advisory group would face conspiracy charges predicated on nothing more than the fact that it manufactured a product that had characteristics of those within that industry." Under the 174*174 principles announced today, however, we do not think liability could properly be imposed under the facts suggested by amicus curiae. Liability for civil conspiracy requires an agreement between the actor and the party sought to be held liable. See Ezzone, 525 N.W.2d at 398; Restatement (Second) of Torts § 876 cmt. a, at 316. An agreement sufficient to impose liability results only from a defendant's knowing and voluntary participation in a common scheme to take action, lawful or unlawful, that ultimately subjects the actor to liability to another. See 16 Am.Jur.2d Conspiracy § 51, at 276 (stating there must be "a meeting of the minds"); see also McClure v. Owens Corning Fiberglas Corp., 188 Ill.2d 102, 241 Ill.Dec. 787, 720 N.E.2d 242, 259 (1999) ("[P]arallel conduct may serve as circumstantial evidence of a civil conspiracy among manufacturers of the same or similar products but is insufficient proof, by itself, of the agreement element of this tort."). Consequently, a company's mere membership in an industry group would not make that company liable for the tortious acts of other members of the group.

            In summary, the plaintiff may base a claim of civil conspiracy on wrongful conduct that does not constitute an intentional tort. Such underlying acts must, however, be actionable in the absence of the conspiracy.

VI. Under Iowa Law, Can a Manufacturer's Alleged Failure to Warn or to Disclose Material Information Give Rise to a Fraud Claim When the Relationship Between a Plaintiff and a Defendant Is Solely That of a Customer/Buyer and Manufacturer?[3]

            Under Iowa law, the failure to disclose material information can constitute fraud if the concealment is made "by a party under a duty to communicate the concealed fact." Cornell v. Wunschel, 408 N.W.2d 369, 374 (Iowa 1987); see also Restatement (Second) of Torts § 557A, at 149 (1977) (stating that the tort of fraud may serve as a basis for the recovery of damages for physical harm to the person or property of one who justifiably relies on the defendant's "fraudulent ... nondisclosure of a fact that it is [the defendant's] duty to disclose" (emphasis added)). The issue presented by the certified question is whether a manufacturer has a duty to communicate "material information" to the ultimate user of the manufacturer's product.

            In the past, this court has recognized a duty to disclose in situations where the plaintiff and the defendant were involved in some type of business transaction, such as buyer/seller or owner/contractor. See Clark v. McDaniel, 546 N.W.2d 590, 592-93 (Iowa 1996) (buyer and seller of used vehicle); Cornell, 408 N.W.2d at 376 (defendant represented wife in sale of hotel to the plaintiff); Kunkle Water & Elec., Inc. v. City of Prescott, 347 N.W.2d 648, 653-54 (Iowa 1984) (defendant to counterclaim contracted with counterclaim plaintiff to repair counterclaim plaintiff's water system). In such circumstances, we have held that an actionable misrepresentation may occur "when one with superior knowledge, dealing with inexperienced persons who rely on him or her, purposely suppresses the truth respecting a material fact involved in the transaction." Kunkle Water & Elec., 347 N.W.2d at 653 (emphasis added); accord Cornell, 408 N.W.2d at 376. This principle is consistent with the Restatement's imposition of a duty to disclose 175*175 facts basic to the transaction, if [the defendant] knows that the other is about to enter into it under a mistake as to them, and that the other, because of the relationship between them, the customs of the trade or other objective circumstances, would reasonably expect a disclosure of those facts.

Restatement (Second) of Torts § 551(2)(e), at 119.

            This court has also held that a duty to disclose may arise from the "attendant circumstances," such as a "`contrivance intended to exclude suspicion and prevent inquiry.'" Wilden Clinic, Inc. v. City of Des Moines, 229 N.W.2d 286, 293 (Iowa 1975) (quoting 37 Am.Jur.2d Fraud and Deceit § 145 (1968)) (involving dispute between buyer and seller of land). This position is in accord with the Restatement (Second) of Torts, which provides:

One party to a business transaction is under a duty to exercise reasonable care to disclose to the other before the transaction is consummated,

. . .

(b) matters known to him that he knows to be necessary to prevent his partial or ambiguous statement of the facts from being misleading....

            Restatement (Second) of Torts § 551(2)(b) (emphasis added); accord Laborers Local 17 Health & Benefit Fund v. Philip Morris, Inc., 7 F.Supp.2d 277, 290-91 (S.D.N.Y.1998); 2 Dobbs § 481, at 1375 (stating that an "[a]ffirmative dut[y] of disclosure [is] imposed when ... the defendant has communicated a half-truth, that is, a partial or ambiguous statement that is misleading unless additional facts are disclosed"). A similar factual situation giving rise to a duty to disclose occurs when a party acquires information "that he knows will make untrue or misleading a previous representation that when made was true or believed to be so." Restatement (Second) of Torts § 551(2)(c). A party must use reasonable care to disclose such subsequently acquired information to another party who has relied on the prior representation. Id.; Glassner v. R.J. Reynolds Tobacco Co., 223 F.3d 343, 352 (6th Cir.2000); Jones v. Am. Tobacco Co., 17 F.Supp.2d 706, 719 (N.D.Ohio 1998).

            Whether a manufacturer owes a duty to disclose material information to a consumer turns, we think, on two issues: (1) is the nature of the relationship between a consumer and a manufacturer of the type to which such a duty should attach even in the absence of any direct dealing between the parties; and (2) does the duty of a manufacturer to a consumer encompass a general duty "to warn or to disclose material information" or is it limited to a duty to correct misleading statements made by the manufacturer? For reasons that follow, we conclude a manufacturer has a duty to a consumer under Restatement (Second) of Torts section 551(2)(b) to disclose "matters known to [the manufacturer] that [it] knows to be necessary to prevent [its] partial or ambiguous statement of the facts from being misleading" and under section 551(2)(c) to disclose subsequently acquired information that would prevent a prior statement from being false or misleading.

            Iowa cases applying a fraud theory have typically involved a business transaction between the parties, a fact not present in the certified question submitted here. Generally there is no "dealing" between a manufacturer and the ultimate consumer of the manufacturer's product. Thus, the communication between two parties giving rise to one party's reliance on the other to disclose facts material to the first party's decision to enter into the transaction is lacking. See Moore v. Fenex, Inc., 809 F.2d 297, 303 n. 2 (6th Cir.1987) ("We are aware of no case, nor has any been cited, 176*176 where a party has been liable for fraudulent nondisclosure that had no direct dealings with the plaintiff."). But see Clark v. McDaniel, 546 N.W.2d 590, 592-94 (Iowa 1996) (holding used-car dealer liable to subsequent purchaser for fraudulent nondisclosure pursuant to Restatement (Second) of Torts § 533 (1977), which extends liability to third parties whom the defendant has reason to expect will hear and rely on misinformation).

            On the other hand, there is support in Iowa case law for the conclusion that the intentional tort of fraud is not necessarily limited to parties dealing directly with each other. In Markworth v. State Savings Bank, 212 Iowa 954, 237 N.W. 471 (1931), this court noted that an action for fraud "can only be brought by the one to whom the fraudulent representations were made." 212 Iowa at 960, 237 N.W. at 474. In explaining this limitation, however, the court quoted "approvingly" from a noted treatise on torts that belied such a narrow application of the tort:

"No one has a right to accept and rely upon the representations of others but those to influence whose action they were made. * * * When statements are made for the express purpose of influencing the action of another, it is to be assumed they are made deliberately, and after due inquiry, and it is no hardship to hold the party making them to their truth. But he is morally accountable to no person whomsoever but the very person he seeks to influence."

            Id. at 960-61, 237 N.W. at 474 (citation omitted). We conclude from this discussion that what is really important is that the statements were made for the purpose of influencing the action of another. The fact that this element is usually found in transactions where the parties deal directly with one another does not mean that the same goal of influencing another's action cannot be present in business transactions that do not involve direct contact between the plaintiff and the defendant. See Small v. Lorillard Tobacco Co., 176 Misc.2d 413, 672 N.Y.S.2d 601, 611 (Sup. Ct.1997) (holding that manufacturer could be held liable for fraud where the misrepresentations were "made to the public at large for the purpose of influencing the action of anyone who may act upon those representations"); Williams v. Philip Morris Inc., 182 Or.App. 44, 48 P.3d 824, 832 (2002) (holding that smoker was required to prove he was "within a class of people whom defendant [cigarette manufacturer] intended to be recipients of and to rely on the [misleading statements]"). We hold, therefore, that a manufacturer who makes statements for the purpose of influencing the purchasing decisions of consumers has a duty to disclose sufficient information so as to prevent the statements made from being misleading, as well as a duty to reveal subsequently acquired information that prevents a prior statement, true when made, from being misleading.

            We decline to extend the duty of disclosure in this context to a general duty to warn, or a duty to disclose under Restatement section 551(2)(e). See Estate of White ex rel. White v. R.J. Reynolds Tobacco Co., 109 F.Supp.2d 424, 431 (D.Md. 2000) (refusing to impose duty to disclose based on mere relationship of manufacturer and buyer); Connick v. Suzuki Motor Co., 174 Ill.2d 482, 221 Ill.Dec. 389, 675 N.E.2d 584, 593 (1996) (same). See generally Restatement (Second) of Torts § 551(2)(e) (imposing a duty to disclose "facts basic to the transaction" when such disclosure would be expected based on the nature of the transaction). Principles of products liability law define the duties of disclosure owed by a manufacturer to a consumer arising out of their relationship as such.

            177*177 In summary, a manufacturer's failure to warn or to disclose material information does not give rise to a fraud claim when the relationship between a plaintiff and a defendant is solely that of a customer/buyer and manufacturer with two exceptions. Those exceptions are limited to instances where the manufacturer (1) has made misleading statements of fact intended to influence consumers, or (2) has made true statements of fact designed to influence consumers and subsequently acquires information rendering the prior statements untrue or misleading. See Restatement (Second) of Torts § 551(2)(b), (c). Under these circumstances, a manufacturer's failure to disclose material information that would prevent his statement of the facts from being misleading can give rise to a fraud claim.[4]

VII. Does an "Undertaking" Arise Under § 323 of the Restatement (Second) of Torts, as Adopted in Iowa, by Reason of a Product Manufacturer's Advertisements or Statements Directed to Its Customers?

            Restatement (Second) of Torts section 323 has been characterized as defining the liability of a "good samaritan." See, e.g., Good v. Ohio Edison Co., 149 F.3d 413, 420 (6th Cir.1998); Gunsalus v. Celotex Corp., 674 F.Supp. 1149, 1157 (E.D.Pa. 1987). It provides:

One who undertakes, gratuitously or for consideration, to render services to another which he should recognize as necessary for the protection of the other's person or things, is subject to liability to the other for physical harm resulting from his failure to exercise reasonable care to perform his undertaking, if

(a) his failure to exercise such care increases the risk of such harm, or

(b) the harm is suffered because of the other's reliance upon the undertaking.

            Restatement (Second) of Torts § 323; see also Jain v. State, 617 N.W.2d 293, 299-300 (Iowa 2000) (discussing requirements for claim made under section 323).

            Preliminarily, it seems obvious from the text of this provision that not every statement made by a manufacturer, whether in an advertisement or otherwise, could constitute an undertaking under section 323. Only when the advertisement or statement indicates that the manufacturer intends to render services to another that are necessary for the other's protection is liability under section 323 even possible. Thus, we agree with the United States Court of Appeals for the Third Circuit that a manufacturer's mere marketing of its product does not constitute an "undertaking to inform the public about the known risks of its products." Steamfitters Local Union No. 420 Welfare Fund v. Philip Morris, Inc., 171 F.3d 912, 936 (3d Cir. 1999).

            Even though our discussion could end here, we assume, based on the allegations in the petition, that the certified question contemplates the advertisement or statement made by the product manufacturer is something more than mere marketing. Thus, we will proceed with the understanding that the advertisement or statement 178*178 this court is asked to consider is one similar to that alleged by the plaintiff in his petition. Here, the plaintiff alleges that the defendants promised to "report honestly and competently on all research regarding smoking and health regarding their tobacco products through their public pronouncements."

            We do not think the defendants' statements that they would report on the results of their research into the health effects of cigarette smoking was an undertaking to render a service to its customers. As one court has concluded in rejecting section 323 liability based on similar statements by tobacco companies, the defendants, by making these statements, did not undertake "to do anything specific for any particular person or entity." Ky. Laborers Dist. Council Health & Welfare Trust Fund v. Hill & Knowlton, Inc., 24 F.Supp.2d 755, 774 (W.D.Ky. 1998) (considering manufacturers' public expression of "interest in the public health" and pledge of "resources to assist the scientific and public health communities with tobacco research"). Other courts are in accord with this result. See Serv. Employees MCI Union Health & Welfare Fund v. Philip Morris, Inc., 83 F.Supp.2d 70, 93 (D.D.C.1999), rev'd on other grounds, 249 F.3d 1068 (D.C.Cir. 2001) (rejecting section 323 liability based on similar statements made by cigarette manufacturers to the general public, ruling such statements "must be made directly to the [smoker], not to the general public through advertisements"); Ark. Carpenters' Health & Welfare Fund v. Philip Morris Inc., 75 F.Supp.2d 936, 944 (E.D.Ark.1999) (holding that similar statements by cigarette manufacturer were insufficient to support liability under section 323); Mass. Laborers' Health & Welfare Fund v. Philip Morris, Inc., 62 F.Supp.2d 236, 245-46 (D.Mass.1999) (dismissing section 323 claim brought by employee health benefit plan to recover expenses it paid for its participants' smoking-related health care, stating "the `relationship' between sellers of a product and purchasers of that product" is not an appropriate basis for section 323 liability); Gunsalus, 674 F.Supp. at 1157 (granting summary judgment on section 323 claim, stating tobacco company's public pledge of "aid and assistance to the research effort into all phases of tobacco use and health" did not "constitute an assumption of a duty to [individual smokers] to perform research and inform [them] of all dangers of cigarette smoking"). We conclude statements by manufacturers such as those alleged in the plaintiff's petition are not an "undertaking" within the scope of section 323.

VIII. Does Iowa Law Allow a Plaintiff to Recover From a Cigarette Manufacturer Under a Manufacturing Defect Theory When the Cigarettes Smoked by Plaintiff Were in the Condition Intended by the Manufacturer?

            Under the principles set forth in the Products Restatement adopted today, "[a] product is defective when, at the time of sale or distribution, it contains a manufacturing defect...." Products Restatement § 2. A product "contains a manufacturing defect when the product departs from its intended design even though all possible care was exercised in the preparation and marketing of the product." Id. § 2(a) (emphasis added). Clearly, then, under Iowa law, a plaintiff may not recover from a cigarette manufacturer under a manufacturing defect theory when the cigarettes smoked by the plaintiff were in the condition intended by the manufacturer.

            Although the answer to the certified question is clear under the law set out in the Products Restatement, many courts have reached the same conclusion in applying the principles of Restatement (Second) of Torts. See, e.g., Wheeler v. Ho Sports Inc., 232 F.3d 754, 757 (10th Cir.2000) ("A 179*179 product is defective in manufacture if it `deviates in some material way from its design or performance standards. The issue is whether the product was rendered unsafe by an error in the manufacturing process.' Errors in process are often established by showing that a product, as produced, failed to conform with the manufacturer's specifications." (Citations omitted.)); In re Temporomandibular Joint (TMJ) Implants Prods. Liab. Litig., 97 F.3d 1050, 1055 n. 4 (8th Cir.1996) ("`A manufacturing defect exists only where an item is substandard when compared to other identical units off of the assembly line.'"); Guilbeault v. R.J. Reynolds Tobacco Co., 84 F.Supp.2d 263, 280 (D.R.I. 2000) ("To establish a manufacturing defect, `a plaintiff must show a product defect caused by a mistake or accident in the manufacturing process.'" (Citation omitted.)); Stoffel v. Thermogas Co., 998 F.Supp. 1021, 1033 (N.D.Iowa 1997) ("`A manufacturing defect ... results when a mistake in manufacturing renders a product that is ordinarily safe dangerous so that it causes harm.'" (Citation omitted.)) (applying Iowa law); 2 Dobbs § 362, at 1002 ("The plaintiff may show a [manufacturing] defect by direct evidence that points to the defect and identifies it as a departure from the defendant's intended design.").

IX. Does Iowa Law Allow Plaintiff to Recover From a Cigarette Manufacturer for Breach of Implied Warranty of Merchantability When the Cigarettes Smoked by Plaintiff Were in the Condition Intended by the Manufacturer and Plaintiff Alleges Defendants' Cigarettes Are "Substantially Interchangeable"?

            Because the implied warranty of merchantability is statutory, we begin our discussion of this issue with a reference to the governing act:

1. Unless excluded or modified (section 554.2316), a warranty that the goods shall be merchantable is implied in a contract for their sale if the seller is a merchant with respect to goods of that kind....

2. Goods to be merchantable must be at least such as

a. pass without objection in the trade under the contract description; and

b. in the case of fungible goods, are of fair average quality within the description; and

c. are fit for the ordinary purposes for which such goods are used; and

d. run, within the variations permitted by the agreement, of even kind, quality and quantity within each unit and among all units involved; and

e. are adequately contained, packaged, and labeled as the agreement may require; and

f. conform to the promises or affirmations of fact made on the container or label if any.

Iowa Code § 554.2314 (1999).

            The plaintiff claims the cigarettes sold by the defendants were not "fit for the ordinary purposes for which such goods are used" because the cigarettes were carcinogenic and addictive. See id. § 554.2314(2)(c).[5] He argues that a design defect could infect an entire product line, thereby rendering the product unmerchantable, even though the product is in the condition intended by the manufacturer and conforms to similar products.

            180*180 The defendants assert that "when a product is manufactured as intended and is like other products of that type, there is no breach of the implied warranty of merchantability." If a health risk associated with use of a product renders the product unmerchantable, contend the defendants, then warranty claims could be brought against manufacturers "of butter, meat, and alcohol, not to mention bicycles, ladders, and knives, precisely because they all carry a risk of disease or injury."

            In reviewing case law from other jurisdictions, we find support for both views. Courts have held that a product that is unreasonably dangerous or lacks adequate warning is likewise not fit for ordinary use. E.g., Hill v. Searle Labs., 884 F.2d 1064, 1070 n. 10 (8th Cir.1989) ("[I]nadequate warning can be evidence of a breach of warranty on the part of a manufacturer."); Bly v. Otis Elevator Co., 713 F.2d 1040, 1045 (4th Cir.1983) ("A manufacturer may breach its implied warranty of merchantability by failing to warn or instruct concerning dangerous propensities or characteristics of a product even if that product is flawless in design and manufacture."); Pritchard v. Liggett & Myers Tobacco Co., 295 F.2d 292, 296, 297 n. 14 (3d Cir.1961) (reversing dismissal of claim for breach of implied warranty of merchantability based on allegation that cigarettes were unfit because they caused physical injury to the smoker, notwithstanding lack of allegation that the cigarettes "smoked by plaintiff were not of the same quality as those generally sold"); Kyte v. Philip Morris Inc., 408 Mass. 162, 556 N.E.2d 1025, 1029 (1990) (denying summary judgment on plaintiff's breach of implied warranty claim based upon an alleged design defect, not in all cigarettes, but in Marlboro and Parliament cigarettes in particular that made those cigarettes "inherently carcinogenic and addictive"). In contrast, other courts have rejected the argument that an unreasonably dangerous product for purposes of strict liability is per se unmerchantable. E.g., Spain v. Brown & Williamson Tobacco Corp., 230 F.3d 1300, 1310 (11th Cir. 2000) (ruling that complaint alleging that cigarettes "were unfit for the ordinary purpose for which they are used because they caused cancer, making them unreasonably dangerous" did not "state a claim for breach of an implied warranty of merchantability"); Green v. Am. Tobacco Co., 409 F.2d 1166, 1166 (5th Cir.1969) (affirming judgment for cigarette manufacturer on breach of implied warranty claim, holding that warranty was not breached where there was no proof that cigarettes were adulterated); Tompkins v. R.J. Reynolds Tobacco Co., 92 F.Supp.2d 70, 94 (N.D.N.Y.2000) (dismissing implied warranty claim based on allegation that all cigarettes are carcinogenic, noting that "warranty of fitness for ordinary purposes `provides for a minimal level of quality'" (citation omitted)); Ark. Carpenters' Health & Welfare Fund, 75 F.Supp.2d at 945 (holding plaintiff had failed to state a claim for breach of the implied warranty of merchantability based on allegation that "a typical cigarette, like all cigarettes, is `generally defective'"); Shell v. Union Oil Co., 489 So.2d 569, 571-72 (Ala.1986).

            Although this court has not addressed the precise issue presented in the certified question, we think the answer lies in the interrelationship of warranty claims and tort product-defect claims, an issue we have considered. Almost twenty years ago, we observed that a warranty of merchantability "is based on a purchaser's reasonable 181*181 expectation that goods ... will be free of significant defects and will perform in the way goods of that kind should perform." Van Wyk v. Norden Labs., Inc., 345 N.W.2d 81, 84 (Iowa 1984) (emphasis added). More recently, this court has held that proof of a "serious product defect" was sufficient to support submission of strict liability and breach of warranty theories. Ballard v. Amana Soc'y, Inc., 526 N.W.2d 558, 562 (Iowa 1995). Notwithstanding a shared focus on defects, warranty claims have been distinguished from strict liability claims on the ground that "`defects of suitability and quality are redressed through contract actions and safety hazards through tort actions.'" Am. Fire & Cas. Co. v. Ford Motor Co., 588 N.W.2d 437, 439 (Iowa 1999) (citations omitted); cf. Shell, 489 So.2d at 571 ("The implied warranty mandated by this section of the U.C.C. is one of commercial fitness and suitability.... That is to say, the U.C.C. does not impose upon the seller the broader obligation to warrant against health hazards inherent in the use of the product when the warranty of commercial fitness has been complied with. Those injured by the use of or contact with such a product, under these circumstances, must find their remedy outside the warranty remedies afforded by the U.C.C."). Despite this distinction, we have found no error in submitting personal injury claims under both strict liability and breach of warranty theories. See Mercer, 616 N.W.2d at 621. In contrast, where only economic loss is alleged, recovery is limited to warranty claims. E.g., Tomka v. Hoechst Celanese Corp., 528 N.W.2d 103, 107 (Iowa 1995) (affirming dismissal of negligence and strict liability claims in case alleging purely economic injuries).

            Although this court has approved submission of both theories in personal injury cases, we have noted the same evidence sufficient to support a negligence claim based on product defects is likewise adequate to support a breach-of-implied-warranty claim. Mercer, 616 N.W.2d at 621. Similarly, this court has stated that while strict liability, negligence, and breach of warranty are "distinct theor[ies] of recovery, the same facts often give rise to all three claims." Lovick, 588 N.W.2d at 698.

            As this review of our case law reveals, we have distinguished product claims premised on tort theories from product claims grounded on warranty theories on the basis of the damages sought rather than on the basis of the nature of the wrongful conduct. And, although we have limited cases involving only economic loss to warranty theories, personal injury plaintiffs are permitted to seek recovery under tort and warranty theories that in essence allege the same wrongful acts. We conclude, therefore, that under Iowa law a seller's warranty that goods are fit for the ordinary purposes for which such goods are used gives rise to the same obligation owed by manufacturers under tort law with respect to the avoidance of personal injury to others.

            The Products Restatement is consistent with this position. It suggests that cases involving harm to persons should satisfy the definition of product defect under section 2, whether the claim is brought under a theory of implied warranty of merchantability or under a tort theory. Products Restatement § 2 cmt. n, at 35; accord Vassallo v. Baxter Healthcare Corp., 428 Mass. 1, 696 N.E.2d 909, 923 (1998) (adopting Products Restatement test for failure-to-warn claim based on breach of implied warranty of merchantability); cf. 1 James J. White and Robert S. Summers, Uniform Commercial Code § 9.8, at 521 (4th ed.1995) (stating authors' belief that merchantability standard and tort standard for "defective condition" under 182*182 section 402A "are interchangeable"). We think this suggestion reflects current Iowa law: conduct that gives rise to a warranty claim based on fitness for ordinary purposes mirrors conduct that gives rise to tort liability for a defective product. Thus, warranty liability under section 554.2314(2)(c) requires proof of a product defect as defined in Products Restatement section 2.

            Having defined the nature of the conduct that violates a warranty of merchantability, we now turn to the question before us: can a cigarette manufacturer be liable for breach of the implied warranty of merchantability when the cigarettes smoked by the plaintiff were in the condition intended by the manufacturer and the plaintiff alleges the defendants' cigarettes are "substantially interchangeable"? If the defect alleged by the plaintiff is a manufacturing defect, see Products Restatement § 2(a), then the answer is "no" for the same reasons that we have previously held that a plaintiff may not recover from a cigarette manufacturer under a manufacturing defect theory when the cigarettes smoked by the plaintiff were in the condition intended by the manufacturer. Obviously, the fact that the cigarettes were in the condition intended by the manufacturer would not preclude recovery under an implied warranty theory where the defect alleged arises from a defective design or inadequate instructions or warnings. See Products Restatement § 2(b), (c).

X. Summary.

Our answers to the certified questions can be summarized as follows:

1. In a design defect products liability case, what test applies under Iowa law to determine whether cigarettes are unreasonably dangerous? What requirements must be met under the applicable test?

Answer: The test and requirements of Restatement (Third) of Torts: Product Liability sections 1-2 (1998) apply.

2. Under Iowa law, can the defendants rely on comment i of section 402A of the Restatement (Second) of Torts to show that cigarettes are not unreasonably dangerous?

Answer: Because Iowa has abandoned section 402A and the requirement of unreasonably dangerous, the defendants cannot rely on the statement made in comment i pertaining to tobacco.

3. Under Iowa law, does the common knowledge of the health risks associated with smoking, including addiction, preclude tort and warranty liability of cigarette manufacturers to smokers because cigarettes are not unreasonably dangerous insofar as the risks are commonly known?

If yes, then:

a. During what period of time would such knowledge be common?

b. Is there a duty to warn of the risks associated with smoking cigarettes in light of such common knowledge?

c. Is reliance on advertisements, statements or representations suggesting that there are no risks associated with smoking, including addiction, justifiable in light of such common knowledge?

Answer: Generally speaking, consumer knowledge is merely one factor in assessing liability for design defects or for failure to warn of product risks. The remainder of this question calls for factual determinations that are beyond the scope of a certified-question proceeding. In the absence of a factual finding with respect to the common knowledge of consumers during the relevant time frame, we cannot determine whether 183*183 such knowledge would, as a matter of law, preclude liability under the principles set forth in the Products Restatement.

4. Under Iowa law, can a plaintiff bring a civil conspiracy claim arising out of alleged wrongful conduct that may or may not have been an intentional tort — i.e., strict liability for manufacturing a defective product or intentionally agreeing to produce an unreasonably dangerous product?

Answer: Yes, a plaintiff may base a civil conspiracy claim on wrongful conduct that does not constitute an intentional tort.

5. Under Iowa law, can a manufacturer's alleged failure to warn or to disclose material information give rise to a fraud claim when the relationship between a plaintiff and a defendant is solely that of a customer/buyer and manufacturer?

Answer: Yes, but only when disclosure is required (1) to correct misleading statements of fact made by the manufacturer with the intent to influence consumers, or (2) to correct statements of fact made by the manufacturer to influence consumers that were true when made but become untrue or misleading in light of subsequently acquired information.

6. Does an "undertaking" arise under section 323 of the Restatement (Second) of Torts, as adopted in Iowa, by reason of a product manufacturer's advertisements or statements directed to its customers?

Answer: Not within the factual parameters presented by this case.

7. Does Iowa law allow a plaintiff to recover from a cigarette manufacturer under a manufacturing defect theory when the cigarettes smoked by the plaintiff were in the condition intended by the manufacturer?

Answer: No.

8. Does Iowa law allow a plaintiff to recover from a cigarette manufacturer for breach of implied warranty of merchantability when the cigarettes smoked by the plaintiff were in the condition intended by the manufacturer and the plaintiff alleges the defendants' cigarettes are "substantially interchangeable"?

Answer: If the breach is based on a manufacturing defect, recovery is not allowed. If the breach is based on a defective design or inadequate instructions or warnings, recovery is not precluded under the stated facts.

CERTIFIED QUESTIONS ANSWERED.

[1] The third certified question also contains three subparts:

a. [During] what period of time would such knowledge be common?

b. Is there a duty to warn of the risks associated with smoking cigarettes in light of such common knowledge?

c. Is reliance on advertisements, statements or representations suggesting that there are no risks associated with smoking, including addiction, justifiable in light of such common knowledge?

            We decline to answer these questions because they are questions of fact or require factual determinations that are not within the reach of chapter 684A. See Iowa Code § 684A.1 ("The supreme court may answer questions of law certified to it...." (Emphasis added.)). The common knowledge of consumers during the lengthy time period at issue in this case is a factual issue beyond the scope of this certified-question proceeding.

            [2] Because we have abandoned strict liability as a basis for design defect cases and failure-to-warn cases and because we conclude, as we later discuss, that the present case does not present an actionable manufacturing defect claim, we need not determine whether a civil conspiracy claim can be based on conduct that subjects the actor to liability under a strict liability theory.

            [3] In responding to this question, we interpret the inquiry to be focused on liability for nondisclosure as opposed to liability for affirmative misrepresentations.

            [4] We express no opinion on whether such claims would be preempted by the Cigarette Labeling and Advertising Act, 15 U.S.C. §§ 1331-1340. See Cipollone v. Liggett Group, Inc., 505 U.S. 504, 527-30, 112 S.Ct. 2608, 2623-24, 120 L.Ed.2d 407, 429-31 (1992); Burton v. R.J. Reynolds Tobacco Co., 208 F.Supp.2d 1187, 1206 (D.Kan.2002); Cantley v. Lorillard Tobacco Co., 681 So.2d 1057, 1061 (Ala.1996); Laschke v. Brown & Williamson Tobacco Corp., 766 So.2d 1076, 1078 (Fla.Dist.Ct.App.2000); Small v. Lorillard Tobacco Co., 252 A.D.2d 1, 679 N.Y.S.2d 593, 603-04 (1998); Am. Tobacco Co. v. Grinnell, 951 S.W.2d 420, 439-40 (Tex.1997).

            [5] Because the plaintiff's claim rests on subsection (2)(c), our discussion of the implied warranty of merchantability has reference only to a warranty claim premised on an allegation that the product was not "fit for the ordinary purposes for which such goods are used." Iowa Code § 554.2314(2)(c).

Hansen v. Sunnyside Products, Inc.,

55 Cal.App.4th 1497, 65 Cal.Rptr.2d 266

(Cal. App. 3d Dist. 1997)

SIMS, Associate Justice.

            In this products liability action involving a household cleanser, we hold that product label warnings are relevant in determining whether a product has a design defect under the risk/benefit test.

***On August 24, 1991, plaintiff Carole Hansen was cleaning the bathrooms in her home with Sunny Brite water stain remover, which she had purchased in a supermarket. Defendant is the supplier of Sunny Brite.

            At the time in question, Sunny Brite contained a six percent solution of hydrofluoric acid. The label on the Sunny Brite bottle stated in part, in capital letters:

            “DANGER. MAY BE FATAL OR CAUSE PERMANENT DAMAGE, VAPOR HARMFUL, CAUSES SEVERE BURNS WHICH MAY NOT BE IMMEDIATELY PAINFUL OR VISIBLE. READ CAREFULLY ALL CAUTIONS ON BACK PANEL. KEEP OUT OF REACH OF CHILDREN.”

            The back panel included the following cautions: “Danger. Contains hydrofluoric acid. Use only with rubber gloves, avoid contact with skin. Do not taste, swallow or breathe. Rinse empty container thoroughly with water before discarding.” The label also contained a “first aid” section, which warned that if the liquid came into contact with skin: “Immediately remove contaminated clothing. Flush skin with water for 15 minutes. Be very careful to clean under fingernails.” The label continued: “Eyes—Rinse immediately with water. Remove contact lenses, if any, then flush eyes with water for another 10 to 15 minutes.” The label continued: “Swallowed—Rinse mouth. Drink a glass of water or milk. Do not cause vomiting.” The label then directed: “Get immediate medical care. Call your Poison Center, emergency department or a physician. Specific antidotal treatment may be needed.”

            Mrs. Hansen wore latex gloves and a face mask while using Sunny Brite. She noticed her hand was becoming wet but assumed it was from perspiration and did not check to see if there was a hole in the glove. When she took off a glove to make a telephone call, she noticed one of her fingers was gray and shriveled. She felt no pain or discomfort at the time and believed the color change was a circulation problem. Mrs. Hansen continued using the product and subsequently began to feel pain in her hand. She placed her hand in water and complained to her husband. Mr. Hansen discovered a hole in the glove Mrs. Hansen had been using, read the Sunny Brite label, called the poison control center, and took Mrs. Hansen to the emergency room. Mrs. Hansen allegedly suffered a serious and disabling injury (a point disputed by defendant and not reached by the jury in its special verdict).

            In August 1992, plaintiffs filed this lawsuit alleging products liability and loss of consortium.

            At trial, plaintiffs presented various theories of product liability—(1) design defect under the consumer expectation test, (2) design defect under the risk/benefit test, and (3) failure to warn.

            [The jury entered a special judgment for defendant. Plaintiffs filed a motion for a new trial and judgment notwithstanding the verdict (JNOV), both of which the trial court granted. This appeal followed].

            [T]he trial court believed JNOV was proper due to insufficiency of the evidence to support a defense verdict on the liability issue—regardless of whether or not warnings could be considered in determining design defect. Defendant contends the trial court erred. We agree.

A. Warnings Are Relevant In Determining Design Defect 

            “[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.” “Excessive” preventable danger logically includes consideration of package warnings to determine the likelihood that harm will occur.

            Indeed, the likelihood that harm will occur is one of the factors expressly identified as relevant to a determination of design defect under the risk/benefit test. “[I]n evaluating the adequacy of a product's design pursuant to [the risk/benefit test], 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 to the product and to the consumer that would result from an alternative design.” 

            In our view, the “likelihood that such danger would occur” under Barker ' s test logically encompasses consideration of the warnings on the package. Further, consideration of package warnings are logically relevant to the ultimate inquiry of whether the design embodies “excessive” preventable danger.

            Plaintiffs appear to think “likelihood that such danger would occur” means the likelihood that hydrofluoric acid will cause damage if it gets on the skin and is left on the skin. They cite no authority for this construction. The bottom-line issue is whether the product is likely to cause harm. Warnings are appropriately considered in that determination.

***

            Plaintiffs appear to suggest that allowing consideration of warnings in a risk/benefit test would in effect add to the Barker test a new requirement that, in order to be defective, the product must be found to be “unreasonably dangerous”—a requirement which would conflict with California's rejection of the “unreasonably dangerous” language in the Restatement Second of Torts. We disagree with plaintiffs' conclusion.

            The Restatement Second of Torts section 402A (hereafter “ § 402A”) refers to liability for a product “in a defective condition unreasonably dangerous.” FN8 Contrary to plaintiffs' contention, California has not rejectedsection 402A in its entirety but only its “unreasonably dangerous” language. ***More accurately, California retains the inquiry into “dangerousness” but merely eliminates the qualifier “unreasonably.” onsideration of warnings is relevant to the question of excessive preventable danger and does not import a new “unreasonably dangerous” requirement into the Barker test.

            Plaintiffs argue that to allow consideration of product warnings in deciding the issue of design defect under the risk/benefit test would improperly shift the burden to the plaintiff, similar to the negligence standard which is to be avoided in products liability actions.

            However, we have explained the burden is on the defendant. Moreover, we disagree with plaintiffs' contention that we are creating a negligence standard. Indeed, Barker itself rejected the claim that the risk/benefit test, by directing the jury to weigh a number of factors, was unacceptable because it introduced an element which “rings of negligence” into the determination of design defect. ( Barker v. Lull Engineering Co., supra, 20 Cal.3d at pp. 433–434, 143 Cal.Rptr. 225, 573 P.2d 443.) “[P]ast design defect decisions demonstrate that, as a practical matter, in many instances it is simply impossible to eliminate the balancing or weighing of competing considerations in determining whether a product is defectively designed or not.... [¶] ... [A]n instruction which advises the jury that it may evaluate the adequacy of a product's design by weighing the benefits of the challenged design against the risk of danger inherent in such design is not simply the equivalent of an instruction which requires the jury to determine whether the manufacturer was negligent in designing the product. (See, e.g., Wade, On the Nature of Strict Tort Liability for Products [1973] 44 Miss. L.J. 825, 835.)[[[FN9] It is true, of course, that in many cases proof that a product is defective in design may also demonstrate that the manufacturer was negligent in choosing such a design.... [H]owever, in a strict liability case, as contrasted with a negligent design action, the jury's focus is properly directed to the condition of the product itself, and not to the reasonableness of the manufacturer's conduct. [Citations.]”

            The fact that California courts have not expressly listed warnings as a separate factor in the risk/benefit test is not, in our opinion, reflective of rejection of that consideration. Rather, consideration of warnings is encompassed in Barker ' s listed factors concerning gravity of the danger and likelihood that the danger will occur.

            Plaintiffs argue that to allow consideration of product warnings in deciding the issue of design defect under the risk/benefit test would violate Barker ' s mandate to “focus on the product, not on the manufacturer's conduct, and that the plaintiff need not prove that the manufacturer acted unreasonably or negligently in order to prevail in such an action.” However, the “likelihood that the danger would cause damage” factor, to which we believe warnings are relevant, does comply with Barker 's mandate to focus on the product. The factor does not focus on the manufacturer's conduct any more than the entire theory of “design defect” focuses on the manufacturer's conduct in choosing the particular design.

            Our conclusion that a warning may weigh in the balance of design defect is consistent with but does not (contrary to plaintiffs' contention) merge with the failure to warn theory of strict liability. Thus, section 402A, comment j, concerning warnings, provides in part, “a product bearing such a warning, which is safe for use if it is followed, is not in defective condition,nor is it unreasonably dangerous.” (Italics added.) Notably, comment j does not tie warnings only to the “unreasonably dangerous” element. . .

            Nevertheless, since the absence of a warning can make a product defective, it makes sense that the presence of a warning is an appropriate consideration in determining a product is non defective. Otherwise, the absence of a warning would be irrelevant, since strict products liability would exist regardless of whether or not there was a warning.

            This does not mean that a warning automatically precludes liability. In a design defect case, the defendant retains the burden to prove the absence of a design defect under a balancing of all relevant factors.                                         

            Contrary to plaintiffs' claim, we are not merging design defect with the “failure to warn” theory of products liability (see fn. 5, ante, for failure to warn jury instructions). Certainly, there is an overlap. Thus, both theories involve inquiry into the nature and magnitude of the danger. 

            Nevertheless, a distinction remains. Thus, “knowledge, actual or constructive, is a component of strict liability on the failure-to-warn theory. “[U]nlike strict liability for design defects, strict liability for failure to warn does not potentially subject [defendants] to liability for flaws in their products that they have not, and could not have, discovered.” ( Carlin v. Superior Court, supra, 13 Cal.4th at p. 1117, 56 Cal.Rptr.2d 162, 920 P.2d 1347.)

            Nothing in our conclusion eradicates that distinction. A manufacturer's placement of warnings on a product may suffice to avoid liability under a “failure to warn” theory, yet the manufacturer may still be found liable under a design defect risk/benefit analysis on the ground that,upon balancing all pertinent risk/benefit factors, including the availability of safer alternative designs (which are not at issue under a failure to warn theory), a design defect exists.

***Finally, in determining whether product warnings may be considered in a risk/benefit calculation, we are mindful of the practical consequences of our conclusion. We do not think that the risk to the consumer of the design of many household products can be rationally evaluated without considering the product's warnings. Thus, for example, what is the risk of the design of a power saw, or other power tools or equipment, without considering the product's directions and warnings? We dare say that the risk would be astronomically, and irrationally, high. The same could be said about common garden pesticides, or even the household microwave oven. In our view, were we to ask jurors to evaluate the risks of the design of many household products without considering their directions or warnings, the practical result would be the withdrawal from the market of many useful products that are dangerous in the abstract but safe when used as directed.

            We therefore conclude warnings on a product label are relevant in determining whether the product has a design defect under the risk/benefit test.

[The court reversed the JNOV and affirmed the trial court’s order].

PHILLIPS, Chief Justice, delivered the opinion of the Court, in which GONZALEZ, SPECTOR, ABBOTT and HANKINSON, Justices, join.

            Petitioner's motion for rehearing is overruled. We withdraw our opinion of July 3, 1998, and substitute the following opinion.

            We must decide whether a manufacturer who knew of a safer alternative product design is liable in strict products liability for injuries caused by the use of its product that the user could have avoided by following the product's warnings. The court of appeals held that the mere fact that a product bears an adequate warning does not conclusively establish that the product is not defective. 928 S.W.2d 64. Because we agree, we affirm the judgment of the court of appeals.

I

            Roberto Martinez, together with his wife and children, sued Uniroyal Goodrich Tire Company ("Goodrich"), The Budd Company, and Ford Motor Company for personal injuries Martinez suffered when he was struck 332*332 by an exploding 16" Goodrich tire that he was mounting on a 16.5" rim. Attached to the tire was a prominent warning label containing yellow and red highlights and a pictograph of a worker being thrown into the air by an exploding tire. The label stated conspicuously:

DANGER

NEVER MOUNT A 16" SIZE DIAMETER TIRE ON A 16.5" RIM. Mounting a 16" tire on a 16.5" rim can cause severe injury or death. While it is possible to pass a 16" diameter tire over the lip or flange of a 16.5" size diameter rim, it cannot position itself against the rim flange. If an attempt is made to seat the bead by inflating the tire, the tire bead will break with explosive force.

...

NEVER inflate a tire which is lying on the floor or other flat surface. Always use a tire mounting machine with a hold-down device or safety cage or bolt to vehicle axle.

NEVER inflate to seat beads without using an extension hose with gauge and clip-on chuck.

NEVER stand, lean or reach over the assembly during inflation.

...

Failure to comply with these safety precautions can cause the bead to break and the assembly to burst with sufficient force to cause serious injury or death.

            Unfortunately, Martinez ignored every one of these warnings. While leaning over the assembly, he attempted to mount a 16" tire on a 16.5" rim without a tire mounting machine, a safety cage, or an extension hose. Martinez explained, however, that because he had removed a 16" tire from the 16.5" rim, he believed that he was mounting the new 16" tire on a 16" rim. Moreover, the evidence revealed that Martinez's employer failed to make an operable tire-mounting machine available to him at the time he was injured, and there was no evidence that the other safety devices mentioned in the warning were available.

            In their suit, the Martinezes did not claim that the warnings were inadequate, but instead alleged that Goodrich, the manufacturer of the tire, Budd, the manufacturer of the rim, and Ford, the designer of the rim, were each negligent and strictly liable for designing and manufacturing a defective tire and rim. Budd and Ford settled with the Martinezes before trial, and the case proceeded solely against Goodrich.

            At trial, the Martinezes claimed that the tire manufactured by Goodrich was defective because it failed to incorporate a safer alternative bead design that would have kept the tire from exploding. This defect, they asserted, was the producing cause of Martinez's injuries. Further, they alleged that Goodrich's failure to adopt this alternative bead design was negligence that proximately caused Martinez's injury.

            The bead is the portion of the tire that holds the tire to the rim when inflated. A bead consists of rubber-encased steel wiring that encircles the tire a number of times. When the tire is placed inside the wheel rim and inflated, the bead is forced onto the bead-seating ledge of the rim and pressed against the lip of the rim, or the wheel flange. When the last portion of the bead is forced onto this ledge, the tire has "seated," and the air is properly sealed inside the tire. The bead holds the tire to the rim because the steel wire, unlike rubber, does not expand when the tire is inflating. The tire in this case was a 16" bias-ply light truck tire with a 0.037" gauge multi-strand weftless bead, or tape bead, manufactured in 1990. A tape bead consists of several strands of parallel unwoven steel wires circling the tire with each layer resting on top of the last, similar to tape wound on a roll. After a number of layers have been wound, the end of the bead is joined, or spliced, to the beginning of the same bead to form a continuous loop.

            The Martinezes' expert, Alan Milner, a metallurgical engineer, testified that a tape bead is prone to break when the spliced portion of the bead is the last portion of the bead to seat. This is commonly called a 333*333 hang-up. Milner testified that an alternative bead design, a 0.050" gauge single strand programmed bead, would have prevented Martinez's injuries because its strength and uniformity make it more resistant to breaking during a hang-up. Milner explained that the 0.050" single strand programmed bead is stronger because it is 0.013" thicker and that it is uniform because it is wound, or programmed, by a computer, eliminating the spliced portion of the bead that can cause the tire to explode during a hang-up.

            According to Milner, Firestone was the first to document that tape beads were prone to break during hang-ups in a 1955 patent application. This application, which was granted three years later, stated in part:

It has developed that in tires of the type now in common use that the grommet of wire used becomes ruptured or broken too frequently at or near the end of the wire splice when the tire bead is forced onto the rim bead seat during mounting of the tire. Applicant has discovered that such breaking of the bead wire occurs most frequently when the spliced portion of the bead wire grommet is located in the last portion of the tire bead to be seated on the rim, and they have noted that when an end of the said wire ribbon was disposed on the radial inner surface of the bead grommet that the break started at or adjacent to that point.

            Milner testified that the design of the bead in the Goodrich tire in question was the same design criticized in the patent. Milner also testified, relying on an internal memorandum that was admitted into evidence, that in 1971 General Tire, one of Goodrich's competitors, knew its tape bead design was prone to break during hang-ups.

            In 1966, 16.5" wheel rims were first introduced into the American market.[1] Milner testified that Uniroyal, Inc. and B.F. Goodrich Company, who in 1986 merged to form Goodrich, soon became aware that mismatching their 16" tires with the new wheel rims often caused hang-ups that resulted in broken beads. The minutes of a 1972 meeting of the Rubber Manufacturers Association ("RMA"), of which both Uniroyal, Inc. and B.F. Goodrich were members, provided:

Mounting of LT [light truck] tires. Attention was drawn to reports that there have been instances where 16" LT tires have been mounted on 16.5" rims and 14" tires on 14.5" rims. It was proposed and approved to request the Service Managers Committee to add a cautionary statement to RMA documents.

            Similarly, the minutes from a 1972 meeting of the Tire and Rim Association, of which Uniroyal, Inc. and B.F. Goodrich were both members, provided:

It was reported that there have been incidents where 14" and 16" tires have been mounted on 14.5" and 16.5" rims that have resulted in broken beads. The Rim Subcommittee of the Technical Advisory Committee was requested to consider some method of marking 15" Drop Center rims and wheels to avoid this practice.

            Finally, Milner testified that B.F. Goodrich's own testing department was aware by at least 1976 that a 16" tire mounted on a 16.5" rim would explode during a hang-up. A B.F. Goodrich "test request" of that year was entered into evidence indicating that a 16" tire would explode when mounted on a 16.5" rim at 73 psi (pounds of pressure per square inch). The test request further indicated that "inspection revealed break was at [illegible] ends of bottom layer of [bead] wires as anticipated." The stated "Object of Test" was: "To develop demonstrative evidence & data for use in lawsuits involving broken beads."

            Milner explained that the computer technology required to manufacture the programmed bead was developed in 1972 and widely available by 1975. Milner testified that Goodyear began using a 0.051" gauge single strand programmed bead in its radial light truck tires in 1977, and that Yokohama began using a single strand programmed bead in its radial light truck tires in 1981. Milner also testified that General Tire began 334*334 using a single strand programmed bead in its bias-ply light truck tires in 1982. Finally, Milner testified that Goodrich itself began using the single strand programmed bead in its 16" radial light truck tires in 1991.[2] Based upon this evidence and his expert opinion, Milner testified that the tire manufactured by Goodrich with a tape bead was defective and unreasonably dangerous. Because Goodrich had also been sued in thirtyfour other lawsuits alleging accidents caused by mismatching Goodrich tires, Milner asserted that Goodrich was grossly negligent in failing to adopt the 0.050" single strand programmed bead in it bias-ply 16" light truck tires.

            Milner also testified that the rim designed by Ford and manufactured by Budd was defective because its size was not clearly marked on it and because it could have been redesigned to prevent a 16" tire from passing over its flange.

            The jury found that Goodrich's conduct was the sole proximate cause of Martinez's injuries and that Goodrich was grossly negligent. Furthermore, the jury found that the tire manufactured by Goodrich was defective, while the wheel rim designed by Ford and manufactured by Budd was not defective. The jury allocated 100% of the producing cause of Martinez's injuries to the acts and omissions of Goodrich.

            The jury awarded the Martinezes $5.5 million in actual damages and $11.5 million in punitive damages. After reducing the award of actual damages by $1.4 million pursuant to a settlement agreement between the Martinezes, Ford, and Budd, reducing the punitive damages to the amount of actual damages pursuant to a pretrial agreement between Goodrich and the Martinezes, and awarding prejudgment interest, the trial court rendered judgment for the Martinezes for $10,308,792.45.

            The court of appeals affirmed the award of actual damages, holding that there was legally sufficient evidence to support the finding of a design defect based upon its examination of the following factors: (1) the availability of safer design alternatives; (2) similar accidents involving the same product; (3) subsequent changes or modifications in design; (4) out-of-court experiments indicating Goodrich's knowledge of a design defect; and (5) expert testimony claiming a design defect. 928 S.W.2d at 70. The court rejected Goodrich's argument that Martinez's failure to heed the product's warnings was a complete defense to the product defect claim. However, the court of appeals reversed and rendered the award of punitive damages, holding that there was no evidence to support the jury's finding of gross negligence.

            Only Goodrich applied to this Court for writ of error. As in the court of appeals, Goodrich's principal argument here is that no evidence supports the jury finding that the tire was defective because "the tire bore a warning which was unambiguous and conspicuously visible (and not claimed to be inadequate); the tire was safe for use if the warning was followed; and the cause of the accident was mounting and inflating a tire in direct contravention of those warnings."

            We will sustain a no evidence point of error when (1) the record discloses a complete absence of evidence of a vital fact; (2) the court is barred by rules of law or of evidence from giving weight to the only evidence offered to prove a vital fact; (3) the evidence offered to prove a vital fact is no more than a mere scintilla; or (4) the evidence establishes conclusively the opposite of the vital fact. See Juliette Fowler Homes, Inc. v. Welch Assocs., Inc., 793 S.W.2d 660, 666 n. 9 (Tex.1990) (citing Calvert, "No Evidence" and "Insufficient Evidence" Points of Error, 38 TEX. L.REV. 361, 362-363 (1960)).

II

A.

            This Court has adopted the products liability standard set forth in section 402A of the Restatement (Second) of Torts. See Firestone Steel Prods. Co. v. Barajas, 927 S.W.2d 608, 613 (Tex.1996); McKisson v. Sales Affiliates, Inc., 416 S.W.2d 787, 788-89 (Tex.1967). Section 402A states:

335*335 (1) one who sells any product in a defective condition unreasonably dangerous to the user or consumer or to his property is subject to liability for physical harm thereby caused to the ultimate user or consumer, or to his property, if

(a) the seller is engaged in the business of selling such a product, and

(b) it is expected to and does reach the user or consumer without substantial change in the condition in which it is sold.

            RESTATEMENT (SECOND) OF TORTS § 402A (1965). A product may be unreasonably dangerous because of a defect in manufacturing, design, or marketing. See Caterpillar, Inc. v. Shears, 911 S.W.2d 379, 382 (Tex.1995); Technical Chem. Co. v. Jacobs, 480 S.W.2d 602, 604-05 (Tex.1972). To prove a design defect, a claimant must establish, among other things, that the defendant could have provided a safer alternative design. See Caterpillar, 911 S.W.2d at 384 ("[I]f there are no safer alternatives, a product is not unreasonably dangerous as a matter of law."). Implicit in this holding is that the safer alternative design must be reasonable, i.e., that it can be implemented without destroying the utility of the product. See id. ("`Texas law does not require a manufacturer to destroy the utility of his product in order to make it safe.'") (quoting Hagans v. Oliver Mach. Co., 576 F.2d 97, 101 (5th Cir.1978)).[3]

            The newly released Restatement (Third) of Torts: Products Liability carries forward this focus on reasonable alternative design. See RESTATEMENT (THIRD) OF TORTS: PRODUCTS LIABILITY § 2(b). Section 2(b) provides:

A product ... is defective in design when the foreseeable risks of harm posed by the product could have been reduced or avoided by the adoption of a reasonable alternative design by the seller or other distributor, or a predecessor in the commercial chain of distribution, and the omission of the alternative design renders the product not reasonably safe.

            To determine whether a reasonable alternative design exists, and if so whether its omission renders the product unreasonably dangerous (or in the words of the new Restatement, not reasonably safe), the finder of fact may weigh various factors bearing on the risk and utility of the product. See Caterpillar, 911 S.W.2d at 383-84; Turner v. General Motors Corp., 584 S.W.2d 844, 848 (Tex.1979).[4] One of these factors is whether the product contains suitable warnings and instructions. See Turner, 584 S.W.2d at 847. The new Restatement likewise carries forward this approach:

A broad range of factors may be considered in determining whether an alternative design is reasonable and whether its omission renders a product not reasonably safe. The factors include, among others, the magnitude and probability of the foreseeable risks of harm, the instructions and warnings accompanying the product, and the nature and strength of consumer expectations regarding the product, including expectations arising from product portrayal and marketing.... The relative advantages and disadvantages of the product as designed and as it alternatively could have been designed may also be considered. Thus, the likely effects of the alternative design on production costs; the effects of the alternative design on product longevity, maintenance, repair, and esthetics; and the range of consumer choice among products are factors that may be taken into account....

RESTATEMENT (THIRD) OF TORTS: PRODUCTS LIABILITY § 2 cmt. f (emphasis added).

            Goodrich urges this Court to depart from this standard by following certain language from Comment j of the Restatement (Second) of Torts. Comment j provides in part:

336*336 Where warning is given, the seller may reasonably assume that it will be read and heeded; and a product bearing such a warning, which is safe for use if it is followed, is not in defective condition, nor is it unreasonably dangerous.

RESTATEMENT (SECOND) OF TORTS § 402A cmt. j (1965). The new Restatement, however, expressly rejects the Comment j approach:

Reasonable designs and instructions or warnings both play important roles in the production and distribution of reasonably safe products. In general, when a safer design can reasonably be implemented and risks can reasonably be designed out of a product, adoption of the safer design is required over a warning that leaves a significant residuum of such risks. For example, instructions and warnings may be ineffective because users of the product may not be adequately reached, may be likely to be inattentive, or may be insufficiently motivated to follow the instructions or heed the warnings. However, when an alternative design to avoid risks cannot reasonably be implemented, adequate instructions and warnings will normally be sufficient to render the product reasonably safe. Compare Comment e. Warnings are not, however, a substitute for the provision of a reasonably safe design.

RESTATEMENT (THIRD) OF TORTS: PRODUCTS LIABILITY § 2 cmt. l (emphasis added). The Reporters' Notes in the new Restatement refer to Comment j as "unfortunate language" that "has elicited heavy criticism from a host of commentators." RESTATEMENT (THIRD) OF TORTS: PRODUCTS LIABILITY § 2, Reporters' Note, cmt. l (citing Latin, Good Warnings, Bad Products, and Cognitive Limitations, 41 U.C.L.A. L.Rev. 1193 (1994) (utilizing the work of cognitive theorists to demonstrate that warnings should only be used as a supplement to a design that already embodies reasonable safety and not as a substitute for it); Twerski, et al., The Use and Abuse of Warnings in Products Liability: Design Defect Comes of Age, 61 CORNELL L.REV. 495, 506 (1976)). Similarly, this Court has indicated that the fact that a danger is open and obvious (and thus need not be warned against) does not preclude a finding of product defect when a safer, reasonable alternative design exists. See Caterpillar, 911 S.W.2d at 383. ("A number of courts are of the view that obvious risks are not design defects which must be remedied. (citations omitted). However, our Court has held that liability for a design defect may attach even if the defect is apparent.").

            The drafters of the new Restatement provide the following illustration for why courts have overwhelmingly rejected Comment j:

Jeremy's foot was severed when caught between the blade and compaction chamber of a garbage truck on which he was working. The injury occurred when he lost his balance while jumping on the back step of the garbage truck as it was moving from one stop to the next. The garbage truck, manufactured by XYZ Motor Co., has a warning in large red letters on both the left and right rear panels that reads "DANGER—DO NOT INSERT ANY OBJECT WHILE COMPACTION CHAMBER IS WORKING—KEEP HANDS AND FEET AWAY." The fact that adequate warning was given does not preclude Jeremy from seeking to establish a design defect under Subsection (b). The possibility that an employee might lose his balance and thus encounter the shear point was a risk that a warning could not eliminate and that might require a safety guard. Whether a design defect can be established is governed by Subsection (b).

RESTATEMENT (THIRD) OF TORTS: PRODUCTS LIABILITY § 2 cmt. l, illus. 14.[5] In fact, Goodrich recognized at trial that warnings are an imperfect means to remedy a product defect. In response to a question posed by the Martinezes' attorney, Goodrich engineer Stanley Lew answered:

Q: Is that why designs of a product are more important than warnings on a product because people may not see warnings but they are always going to encounter the design?

A: Yes, that's correct. It's the products they deal with.

            337*337 For these reasons we refuse to adopt the approach of Comment j of the superseded Restatement (Second) of Torts section 402A.

B.

            We do not hold, as the dissenting justices claim, that "a product is defective whenever it could be more safely designed without substantially impairing its utility," post at 344, or that "warnings are irrelevant in determining whether a product is reasonably safe." Post at 345. Rather, as we have explained, we agree with the new Restatement that warnings and safer alternative designs are factors, among others, for the jury to consider in determining whether the product as designed is reasonably safe. See RESTATEMENT (THIRD) OF TORTS: PRODUCTS LIABILITY § 2 cmt. f. While the dissenting justices say that they also agree with the Restatement's approach, they would, at least in this case, remove the balancing process from the jury. Instead, they would hold that Goodrich's warning rendered the tape bead design reasonably safe as a matter of law.

            The dissenting justices first argue that Goodrich's warning was clear and that it could have been followed, and consequently Martinez was injured only by "[i]gnoring ... his own good sense." Post at 343. Even if this were true,[6] it is precisely because "it is not at all unusual for a person to fail to follow basic warnings and instructions," General Motors Corp. v. Saenz, 873 S.W.2d 353, 358 (Tex.1993), that we have rejected the superseded Comment j. The dissent also notes that there have been few reported mismatch accidents involving tires with this particular warning label. While this is certainly relevant, and perhaps would persuade many juries, we cannot say that it conclusively establishes that the tire is reasonably safe when weighed against the other evidence. The jury heard firsthand how an accident can occur despite the warning label, and how a redesigned tire would have prevented that accident. The jury also heard evidence that Goodrich's competitors had incorporated the single strand programmed bead by the early 1980s, and that Goodrich itself adopted this design in 1991, a year after manufacturing the tire that injured Martinez. Under these circumstances, there is at least some evidence supporting the jury's finding of product defect.

III

            Goodrich argues that even if its Comment j argument does not prevail, it is still entitled to judgment as a matter of law because no safer alternative was available. In response, the Martinezes point to the evidence that Goodrich's competitors, and eventually Goodrich itself, adopted the safer 0.050" single strand programmed bead. Goodrich counters that this alternative design is not in fact safer because if the tire is matched to the wrong size rim the bead will never seat on the rim and it will inevitably explode during use.

            We agree with the general proposition that a manufacturer should not be liable for failing to adopt an alternative design that would, under other circumstances, impose an equal or greater risk of harm. To prevail in a design defect case, a plaintiff should be required to show that the safety benefits from its proposed design are foreseeably greater than the resulting costs, including any diminished usefulness or diminished safety. See Owen, Toward a Proper Test for Design Defectiveness: "Micro-Balancing" Costs and Benefits, 75 TEX. L. REV. 1661, 1690 (1997). As the new Restatement explains:

When evaluating the reasonableness of a design alternative, the overall safety of the product must be considered. It is not sufficient that the alternative design would have reduced or prevented the harm suffered by the plaintiff if it would also have introduced into the product other dangers of equal or greater magnitude.

RESTATEMENT (THIRD) OF TORTS: PRODUCTS LIABILITY § 2 cmt. f.

            The Martinezes, however, offered some evidence that their alternative design not only would have prevented the injury to Martinez, but also that it would not have introduced 338*338 other dangers of equal or greater magnitude. It is undisputed that the single strand programmed bead is more resistant to breaking in mismatch situations. Goodrich expert Tom Conner testified that in a mismatch situation the tape bead may break at 60 psi, while a single strand bead will not break until at least 130 psi. Conner also testified that he has never heard of a single strand bead breaking during the inflating of a mismatched tire. Goodrich representative Stanley Lew testified that the single strand bead is more resistant in a mismatch situation. Lew also testified that if the tire inflated by Martinez had a single strand bead it would not have exploded. Both Conner and Lew testified that they would prefer a tire inflated by their loved one to have a single strand bead.

            It is true that Goodrich also offered some evidence that the single strand programmed bead would have introduced other dangers of equal or greater magnitude because of the risk of "in service" blow-outs. Lew testified that even if a 16" tire was successfully mounted on a 16.5" rim, the tire will fail when used on the road. Conner, a forensic scientist, also stated that both laboratory and road testing revealed that if a 16" tire was mounted on a 16.5" rim the tire will blow out when driven on the road. However, Conner testified that in his 25 years of experience in the tire industry he has never heard of a "single person in the world" that has been hurt by a 16" tire on a 16.5" rim "out in service." Lew testified on direct examination:

Q: Have you personally seen any examples of where the Goodyear programmed single strand bead used in some but not all of its tires failed in service on the wrong sized wheel?

A: No; I haven't seen any.

Lew further testified:

Q: Tell me one person's name from any tire you have ever seen where it's failed in service when a 16's mounted on a 16.5.

A: Fine and I told you at my deposition that no; I don't know a single name.

Q: All right. Tell me one single name of a persons [sic] that's been injured in a mismatch explosion of a single strand bead?

A: Again, I don't know of any.

            This evidence does not conclusively prove that the programmed bead would have introduced into the product other dangers of equal or greater magnitude. There was thus a fact issue regarding whether a reasonable alternative design existed, which the jury resolved in favor of the Martinezes.

IV

            Goodrich next asserts that the evidence conclusively establishes that the tire rim designed by Ford Motor Company and manufactured by the Budd Company was defective and that such defect contributed to Martinez's injuries, so that the court of appeals erred in affirming the trial court's judgment based on the jury's answers that the rim was not defective and did not contribute to the injury. Goodrich points to Milner's undisputed testimony that the rim was defective because it could have been redesigned to prevent a 16" tire from passing over its flange.

            The general rule is that opinion testimony, even when uncontroverted, does not bind the jury unless the subject matter is one for experts alone:

[T]he judgments and inferences of experts or skilled witnesses, even when uncontroverted, are not conclusive on the jury or trier of fact, unless the subject is one for experts or skilled witnesses alone, where the jury or court cannot properly be assumed to have or be able to form correct opinions of their own based upon evidence as a whole and aided by their own experience and knowledge of the subject of inquiry.

            McGalliard v. Kuhlmann, 722 S.W.2d 694, 697 (Tex.1986) (citing Coxson v. Atlanta Life Ins. Co., 142 Tex. 544, 179 S.W.2d 943, 945 (1944)). See also TEX.R. CIV. P. 166a(c) (uncontroverted expert testimony may establish right to summary judgment only "as to subject matter concerning which the trier of fact must be guided by the opinion testimony of experts"). Goodrich argues that this subject 339*339 matter is for experts alone because the jury could not have determined, without the benefit of expert testimony, that a safer, feasible, alternative design existed.

            We agree that expert testimony was probably necessary to show the feasibility of the alternative rim design which would have prevented a mismatched tire from passing over the rim flange. Once a feasible alternative design was shown, however, the question remained whether the rim as designed was unreasonably dangerous. See RESTATEMENT (THIRD) OF TORTS: PRODUCTS LIABILITY § 2(b) (product is defective in design when risks could have been reduced by adoption of reasonable alternative design and omission of the alternative design renders the product not reasonably safe). We conclude that the jury could properly determine whether the rim as designed was unreasonably dangerous, and that it was not required to follow expert testimony on this issue. Milner's expert testimony thus does not conclusively establish that the rim was defective. Cf. McGalliard, 722 S.W.2d at 697 (house repairs); Broussard v. Moon, 431 S.W.2d 534, 537 (Tex.1968) (dishwasher repairs); Coxson, 179 S.W.2d at 945 (sound health of insured at time policy was issued).

            The dissent argues that, even if the jury was not required to accept the expert testimony of rim defect, it was required to accept the lay opinion of Martinez and Martinez's co-worker on this issue. Of course, the fact that the dissent places such weight on this lay testimony supports our conclusion that the subject matter is not solely for experts. Moreover, where the subject matter is not solely for experts, uncontroverted opinion testimony is not conclusive, regardless of whether it comes from an expert or a lay witness. The rule of McGalliard quoted above—that expert testimony is generally not conclusive___follows not because the testimony is from an expert, but because it is opinion testimony. Unless the subject matter is solely for experts, jurors are capable of forming their own opinions from the record as a whole. See Coxson, 179 S.W.2d at 945 (expert testimony is conclusive only where jurors "cannot properly be assumed to have, or be able to form, correct opinions of their own based upon the evidence as a whole and aided by their own experience and knowledge of the subject of inquiry"). Thus, the jury was entitled to reject the opinion testimony that the rim was defective, regardless of whether it was from an expert, Martinez, or Martinez's co-worker.

            The dissent also argues that, even without any opinion testimony, the record conclusively establishes that the rim was defective. Milner testified that the rim could have been redesigned to prevent a 16" tire from being mounted on it, possibly by filling the wheel well so that it was not as deep. However, while this is some evidence of a feasible alternative design, it is not conclusive evidence of an unreasonably dangerous product, given the factors that a jury must balance under the Restatement. See RESTATEMENT (THIRD) OF TORTS: PRODUCTS LIABILITY § 2 cmt. f. For example, there was no evidence of whether the alternative design would affect production costs, the rim's road characteristics, or the relative ease of mounting and dismounting the correct size tire.

            The dissent also argues that the rim is defective as a matter of law because its size was not prominently marked on it. Milner and Conner both testified that the rim's size should be displayed close to the valve stem to reduce the risk of an accidental mismatch. Milner further testified that the size should also be displayed in the wheel well, as some other manufacturers had done. Milner pointed out, however, that "this wheel's probably been cleaned since [the accident] so that the existence of [a size marking] wouldn't necessarily mean that [Martinez] would see it." Indeed, Martinez's co-worker testified that at the time of the accident the wheel was so covered with caliche that "it looked white." Based on this evidence, the jury could have concluded that a size marking near the valve stem would have been obscured, and would not have been seen by Martinez. Similarly, the jury was entitled to conclude that Martinez would not have seen a size marking or warning in the well of the wheel while he was in the process of mounting a tire on the wheel. Thus, even if the dissent were correct that the rim was defective as a matter of law because its size was not clearly marked, 340*340 the evidence does not conclusively establish that any such defect was a producing cause of Martinez's injury. Because the issues of rim defect and producing causation were both submitted to the jury in one broad-form question, the jury's negative answer to that question is not contrary to the conclusive evidence.

V

            Goodrich also argues that the evidence conclusively establishes that Martinez was negligent and that he contributed to his own injuries. Specifically, Goodrich argues that unless some defect in the warning hinders a plaintiff's ability to see and heed it, the failure to see and heed a warning is conclusive proof of contributory negligence.

            In reviewing a conclusive evidence point, we must determine whether the proffered evidence as a whole rises to a level that reasonable people could not differ in their conclusions. Transportation Ins. Co. v. Moriel, 879 S.W.2d 10, 25 (Tex.1994); Powers & Ratliff, Another Look at "No Evidence" and "Insufficient Evidence," 69 TEX. L.REV. 515, 523 (1991) ("Ultimately, the test for `conclusive evidence' ... is similar to the test for `no evidence' ...; the court asks whether reasonable minds could differ about the fact determination to be made by the jury."). The jury was asked to decide whether Martinez was negligent, that is, whether he failed to exercise ordinary prudence. Both Martinez and his co-worker Ramundo Regalado testified that, because they had removed 16" tires from the rims on which they were working, they assumed that the rims were also 16". Also, although there was a tire-changing machine on the premises, the evidence was conflicting as to whether Martinez could have used it to secure the tire. Rene Vera, Martinez and Regalado's employer, testified that the tire-changing machine, although inoperable for dismounting tires, could have nonetheless been used to secure the tire during inflation. Regalado testified, however, that the tire-changing machine did not work, despite his repeated requests to the safety foreman to have it repaired, and that had it worked he and Martinez would have been using it on the day of the accident to secure the tire. Thus, Goodrich failed to conclusively prove that Martinez was negligent in failing to use the machine. There is no evidence that the other safety devices referenced in the tire warning—a safety cage or an extension hose—were available to Martinez. Further, Goodrich offered no evidence as to whether it was practical or feasible under the circumstances for Martinez to bolt the rim to a vehicle axle in order to inflate the tire and seat the bead. Both Martinez and Regalado testified that the manner in which Martinez was inflating the tire was customary in their shop. Based upon this evidence, we cannot conclude that reasonable people could not differ about whether Martinez failed to exercise ordinary prudence under the circumstances.

            Because we conclude that Goodrich did not conclusively establish that Martinez was negligent, we do not address Goodrich's argument that there is no evidence to support the jury's allocation of causation.

VI

            Goodrich next argues that even if it is not entitled to a rendition of judgment, it is entitled to a new trial because of three reversible evidentiary rulings. These rulings were: (1) the admission of evidence of thirtyfour other lawsuits against Goodrich involving mismatched tires; (2) the admission of evidence that Goodrich had subsequently redesigned its radial light truck tires to incorporate the single strand programmed bead; and (3) the admission of a "time line" used by the Martinezes' expert. To reverse a judgment based upon erroneously admitted evidence, the complaining party must show that the error was reasonably calculated to cause and probably did cause rendition of an improper judgment or was such that it prevented the complaining party from making a proper presentation of the case to the appellate court. See Texas Dep't of Human Servs. v. White, 817 S.W.2d 62, 63 (Tex.1991); Gee v. Liberty Mut. Fire Ins. Co., 765 S.W.2d 394, 396 (Tex.1989); TEX.R.APP. P. 61.1.

            First, as to the other lawsuits, Goodrich asserts that thirty-three of these thirtyfour lawsuits involved tires without pictographic warnings. Therefore, they were not 341*341 substantially similar and were admitted without proper predicate. Evidence of earlier accidents that occurred under reasonably similar but not necessarily identical circumstances is admissible. Missouri-Kansas-Texas R. Co. v. May, 600 S.W.2d 755, 756 (Tex.1980); Missouri Pac. R.R. v. Cooper, 563 S.W.2d 233, 236 (Tex.1978); see also Jackson v. Firestone Tire & Rubber Co., 788 F.2d 1070 (5th Cir.1986) (applying Texas law). Like this case, the earlier accidents resulted from mounting a 16" Goodrich tire with a tape bead on a 16.5" rim. The absence of pictographic warnings on the tires does not render the accidents so dissimilar as to preclude their admission, but merely goes to the weight of the evidence. The trial court did not commit error by admitting evidence of the thirty-four earlier accidents caused by mismatching Goodrich tires.[7]

            Goodrich next complains that the trial court erred by admitting evidence that Goodrich subsequently redesigned its radial light truck tires to incorporate the single strand programmed bead, because radial tires are fundamentally different from the bias-ply tire that injured Martinez, and the bead change was not made in the radial tires for safety reasons. Goodrich first argues that, under these circumstances, the evidence regarding radial tires violates Texas Rule of Civil Evidence 407(a).

Rule 407(a) states:

Subsequent Remedial Measures. When, after an event, measures are taken which, if taken previously, would have made the event less likely to occur, evidence of the subsequent remedial measures is not admissible to prove negligence or culpable conduct in connection with the event. This rule does not require the exclusion of evidence of subsequent remedial measures when offered for another purpose, such as proving ownership, control or feasibility of precautionary measures, if controverted, or impeachment. Nothing in this rule shall preclude admissibility in products liability cases based on strict liability.

            TEX.R. CIV. EVID. 407(a) (emphasis added). Goodrich argues that this rule only permits the admission of subsequent remedial measures involving the product at issue, and that such measures must have been made for safety reasons. However, the rule does not contain these limitations. Rather, under the express language emphasized above, Rule 407(a) simply does not apply in products liability cases based on strict liability. Thus, the trial court did not violate Rule 407(a).[8]

            Goodrich further argues that, because of the differences between radial tires and bias-ply tires, the evidence regarding the redesign of its radial tires is not relevant to the issue of design defect in its bias-ply tires. Goodrich appears to argue that it was harmed by this evidence because the jury could have improperly inferred that, because Goodrich incorporated the single strand programmed bead into its radial tires, such redesign was feasible and necessary for the bias-ply tire involved in this accident. However, there was independent evidence that the single strand programmed bead was feasible for bias-ply tires as early as 1982, when General Tire adopted that design, and that the programmed bead was safer. Under these circumstances, the trial court did not commit reversible error by admitting 342*342 evidence of Goodrich's redesign of its radial tires.

            Raising similar arguments, Goodrich also contends that the trial court erred by admitting evidence of Goodrich's redesign of its "space saver" spare tires. For the reasons discussed above regarding the radial tires, the trial court did not commit reversible error by admitting this evidence.

            Goodrich's final evidentiary complaint is that the trial court committed reversible error by admitting a "time line" chart prepared by the Martinezes' expert and used by him during trial. Specifically, Goodrich complains that the time line contained a self-serving compilation of hearsay evidence both irrelevant to the issues in this lawsuit and unfairly prejudicial to Goodrich.

            Charts and diagrams that summarize, or perhaps emphasize, testimony are admissible if the underlying information has been admitted into evidence, or is subsequently admitted into evidence. See Speier v. Webster College, 616 S.W.2d 617, 618-19 (Tex.1981); Cooper Petroleum Co. v. LaGloria Oil & Gas Co., 436 S.W.2d 889, 891 (Tex.1969); Champlin Oil & Ref. Co. v. Chastain, 403 S.W.2d 376, 389 (Tex.1965). In this case, Goodrich complains that the chart contained highly prejudicial hearsay evidence such as one line reading "numerous 16/16.5 mismatch explosions resulting in serious injury or death." However, all the evidence contained on the chart was already in evidence, principally through Milner's testimony, and Goodrich did not object to its introduction. The trial court did not err by admitting the time line.

VII

            Finally, Goodrich complains that the trial court committed reversible error by not bifurcating the liability and punitive damages phases of the trial as required by this Court's subsequent decision in Transportation Insurance Co. v. Moriel, 879 S.W.2d 10 (Tex. 1994). The Martinezes argue that consideration of this point is unnecessary because the court of appeals reversed and rendered the jury's punitive damage award, holding there was no evidence to support the verdict on those damages. However, in Moriel we instructed trial courts to bifurcate the liability and punitive damages phases of the trial because certain evidence admissible solely for the purpose of proving punitive damages "has a very real potential for prejudicing the jury's determination of other disputed issues in a tort case." Id. at 30. Thus, we must determine whether the trial court erred in refusing to bifurcate the punitive damages phase of the trial, and if so, whether the error was harmful.

            In Moriel we held that "a trial court, if presented with a timely motion, should bifurcate the determination of the amount of punitive damages from the remaining issues." Id. at 30. We stated further that bifurcation applies "to all punitive damages cases tried in the future." Id. at 26. Shortly thereafter, in Ellis County State Bank v. Keever, 888 S.W.2d 790 (Tex.1994), we applied Moriel retroactively. In Keever, we stated that "[a]lthough Moriel was decided after the court of appeals' decision in this case, its holding should be applied to a pending case in which a party has preserved the complaint that the court of appeals failed to properly scrutinize a punitive damage award." Id. at 799. Since Goodrich presented the trial court with a timely motion, the trial court, consistent with our ruling in Keever, should have bifurcated the determination of the amount of punitive damages from the remaining issues.

            Having determined that the trial court erred in refusing to bifurcate the trial, we must determine whether the trial court's error was reasonably calculated to cause and probably did cause rendition of an improper judgment. See TEX.R.APP. P. 61.1 The rationale given for bifurcation in Moriel was that "evidence of a defendant's net worth, which is generally relevant only to the amount of punitive damages, by highlighting the relative wealth of a defendant, has a very real potential for prejudicing the jury's determination of other disputed issues in a tort case." Moriel, 879 S.W.2d at 30. Here, the jury was not presented with any evidence of Goodrich's net worth. While we do not hold that net worth evidence is the only prejudice that may result from trying actual and punitive 343*343 damage claims together, there is no prejudice in this case requiring a reversal of the judgment. Goodrich argues that the Martinezes were free to indulge in inflammatory argument for a high punitive damage award that would not have been permitted in the liability phase had bifurcation been granted. Specifically, Goodrich argues that it was severely prejudiced by the Martinezes' plea for $500,000 for each of the thirty-four other lawsuits filed against Goodrich so as to send a "message back to Akron." Because the other suits were properly in evidence on the issue of liability, however, we conclude that this jury argument was not so prejudicial to the actual damages claim as to require a reversal.

* * *

            Because we conclude that there is some evidence to support the judgment of the court below on the theory of products liability, we need not consider Goodrich's claim that there is no evidence as to negligence. For the foregoing reasons, we affirm the judgment of the court of appeals.

HECHT, J., files a dissenting opinion, in which ENOCH and BAKER, JJ., join, and in which OWEN, J., joins in all but Part II.

HECHT, Justice, joined by ENOCH and BAKER, Justices, and by OWEN, Justice, in all but Part II, dissenting.

The Court's revision of its opinion on rehearing requires a responsive revision in this dissent. The dissenting opinion issued July 3, 1998 is accordingly withdrawn, and this opinion substituted.

            Having changed about a thousand tires in his life, Roberto Martinez admits he knew better than to lean over a tire while inflating it. Besides, he had seen the pictographic warning on the very tire he was changing which showed a worker being hurt by an exploding tire and warned: "NEVER stand, lean or reach over the assembly during inflation." Ignoring this warning and his own good sense, Martinez was leaning over the tire, inflating it, when it exploded in his face.

            The 16" tire exploded because it would not fit the 16.5" wheel on which Martinez was trying to mount it. Martinez knew it was very dangerous to try to mount a 16" tire on a 16.5" wheel, and he would never knowingly have tried to do it, but the size of the wheel was not marked where he could find it. He understood that his co-worker had taken a 16" tire off the wheel, and he was simply trying to put the same size tire back on. The Budd Company, which manufactured the wheel to Ford Motor Company's specifications, knew, as did Ford, that people sometimes try to mount 16" tires on 16.5" wheels, not realizing that tire and wheel are mismatched. To minimize the risk of such mistakes, Budd and Ford could have changed the design of the wheel to prevent mounting mismatched tires, but they did not do so. Budd could also have simply stamped the size in plain view on the outboard side of the wheel near the valve stem where it was almost sure to be seen, but it did not do that, either. Instead it encoded the size in small letters on the inboard side, where it was hard to find if the wheel was clean, and indecipherable if the wheel was dirty, as it was in this case.

            Although a 16.5" wheel can be designed so that a 16" tire cannot be mounted on it, a 16" tire cannot be designed so that it cannot be mounted on a 16.5" wheel. A tire manufacturer's only options to reduce the risk of injury from attempting to mount a 16" tire on a 16.5" wheel are to place a warning on the tire or to design the bead wire so that it will withstand higher inflation pressure before exploding. The Uniroyal Goodrich Tire Company, which made the tire Martinez was using, chose to put a prominent, pictographic label on it, which, as I have said, Martinez actually saw but did not heed. Had he done so, he would not have been injured. In fact, according to the record, only one other person has ever claimed to have been injured attempting to mount a 16" tire with a warning label like Goodrich's on a 16.5" wheel, although thousands of labeled tires and more than thirty million 16.5" wheels have been manufactured in the past two decades.

            Now as among Martinez, the wheel manufacturers, and Goodrich, how should responsibility 344*344 for Martinez's accident be apportioned? The reader may be surprised at the answer in this case. Martinez, though negligent by his own admission, is held to bear no responsibility for the accident. The wheel manufacturers, too, are held to be free of responsibility (they settled with Martinez before trial) although the undisputed testimony by both Martinez's and Goodrich's experts is that Budd and Ford defectively designed the wheel. Only Goodrich is held liable—and for providing a warning on the tire that would have prevented Martinez's accident altogether instead of redesigning the bead wire so that the accident would only have been less likely. This aberrant result flows from four serious flaws in the Court's opinion which, even more importantly, misstate the law that will be applied in other cases.

            First, the Court holds that a product can be found to be defective whenever it could be more safely designed without substantially impairing its utility. This is not, and should not be, the law. As the Restatement (Third) of Torts: Products Liability advises, a "broad range of factors" besides the utility of a reasonable alternate design should be considered in determining whether its use is necessary to keep the product reasonably safe, including "the magnitude and probability of the foreseeable risks of harm [and] the instructions and warnings accompanying the product".[1] When the undisputed evidence is that the magnitude and probability of a risk are low, an alternative design could reduce but not eliminate that risk, and the instructions and warnings given do eliminate the risk, the product should be determined not to be defective as a matter of law.

            Second, the Court holds that whether a wheel is defectively designed "because its size is not clearly marked or because its design allows a mismatched tire to be placed on it" can be decided by "lay jurors, based on their own experience and common sense," unaided by expert opinion.[2] It follows that a plaintiff, by offering no evidence other than his own lay opinion, could prove that a wheel was defectively designed—that is, that risks of harm were foreseeable, that there was a reasonable alternative design that would reduce and avoid them, and that the omission of the design rendered the product not reasonably safe. I doubt whether such lay testimony would support a judgment in any design defect case.[3] The record in this case proves that such evidence could not possibly support a judgment for Martinez.

            Third, the Court holds that evidence of thirty-four other claims of injury over fifteen years from trying to mount 16" Goodrich tires on 16.5" wheels was admissible without proof that any of the claims were valid— some were undisputedly invalid—or that they arose out of accidents similar to Martinez's. A few weeks ago the Court held that evidence of anticipated or unpaid punitive damage claims is irrelevant and inadmissible to show punitive damage liability.[4] Today the Court holds that evidence of other claims— whether proven or not, and whether similar or not—is relevant and admissible to show liability. The Court also holds that an expert may testify that a product has caused serious injury and death when no basis at all has been shown for the statement.

            Fourth, the Court holds that the district court's refusal to bifurcate the punitive damages part of the trial was harmless error because Martinez did not offer evidence of Goodrich's net worth. But while net worth evidence can unfairly prejudice the jury's consideration of liability issues, it is not the sole source of prejudice. Today's opinion undermines the bifurcation requirement of Transportation Insurance Co. v. Moriel.[5]

            Because I disagree with all these holdings, for reasons I now explain in more detail, I respectfully dissent.

345*345 I

Comment j to Section 402A of the Restatement (Second) of Torts states:

Where warning is given, the seller may reasonably assume that it will be read and heeded; and a product bearing such a warning, which is safe for use if it is followed, is not in defective condition, nor is it unreasonably dangerous.[6]

            We have followed the first clause of comment j, but only to the extent of holding that a plaintiff is entitled to a rebuttable presumption that had he been adequately warned of the dangers of a product, he would have avoided injury, despite the fact that experience teaches that "it is not at all unusual for a person to fail to follow basic warnings and instructions."[7] The presumption is merely a procedural device to obviate the necessity of plaintiff's self-serving testimony that he would have heeded adequate warnings.[8] In making the presumption rebuttable we recognized that the first clause is not always true. Further, we have never followed the second clause of comment j, and now the Restatement (Third) of Torts: Products Liability has withdrawn comment j altogether as "unfortunate language" that "has elicited heavy criticism from a host of commentators."[9] The Court's firm rejection of comment j, which the Court has never adopted and the Restatement has now itself rejected, is perhaps beating a dead horse, but I agree that comment j does not correctly state what the law is or should be.

            Since it is human nature to disregard instructions, a rule that any product is reasonably safe as long as it bears an adequate warning of the risks of its use is not feasible. Such behavior, however, does not warrant the opposite rule that warnings are irrelevant in determining whether a product is reasonably safe. I agree with the Court that comment l to Section 2 of the Restatement (Third) of Torts: Products Liability now has it about right:

Reasonable designs and instructions or warnings both play important roles in the production and distribution of reasonably safe products. In general, when a safer design can reasonably be implemented and risks can reasonably be designed out of a product, adoption of the safer design is required over a warning that leaves a significant residuum of such risks. For example, instructions and warnings may be ineffective because users of the product may not be adequately reached, may be likely to be inattentive, or may be insufficiently motivated to follow the instructions or heed the warnings. However, when an alternative design to avoid risks cannot reasonably be implemented, adequate instructions and warnings will normally be sufficient to render the product reasonably safe. Warnings are not, however, a substitute for the provision of a reasonably safe design.[10]

            I do not agree, however, that the Court correctly reads or follows comment l. Comment l limits but does not foreclose the role of warnings in making products reasonably safe, even when there is a safer alternative design. The Court stresses the last sentence of comment l and brushes past the first sentence. Taken as a whole, the comment says, correctly, I think, that a safer alternative design that eliminates a risk is required over a warning that leaves a significant residuum of risk because product users may not get the warning, may be inattentive, or may not be motivated to heed the warning. The illustration accompanying comment l is of a worker whose foot is severed by a garbage truck's blade and compaction chamber when he loses his balance jumping onto the back of the truck.[11] A warning on the truck, "keep hands and feet away", does little to protect 346*346 against a worker's foreseeable inadvertence or misstep in the usual discharge of his job. But the warning might well be adequate admonishment to the merely curious, even if the garbage truck could be designed to be safer, if the residuum of risk were insignificant. Even if the risk that a worker will lose his balance and slip is significant enough to warrant designing additional protections in the truck, the risk that someone will intentionally stick his hand in a place where it obviously may be hurt when he is effectively warned not to do so may not warrant design changes.

Section 2(b) of the Restatement (Third) of Torts: Products Liability states the applicable rule:

A product ... is defective in design when the foreseeable risks of harm posed by the product could have been reduced or avoided by the adoption of a reasonable alternative design by the seller or other distributor, or a predecessor in the commercial chain of distribution, and the omission of the alternative design renders the product not reasonably safe.[12]

            There are two components to this rule: the possibility of a safer, reasonable alternative design, and a product that is not reasonably safe without that design. Both are required. Even if a reasonable alternative design would make a product safer, the product is not defective unless the omission of the design makes the product not reasonably safe. The comparison is not between the two designs, but between the product alternatively designed and the product including any warning. Comment f to Section 2 explains:

Subsection (b) states that a product is defective in design if the omission of a reasonable alternative design renders the product not reasonably safe. A broad range of factors may be considered in determining whether an alternative design is reasonable and whether its omission renders a product not reasonably safe. The factors include, among others, the magnitude and probability of the foreseeable risks of harm, the instructions and warnings accompanying the product, and the nature and strength of consumer expectations regarding the product, including expectations arising from product portrayal and marketing. The relative advantages and disadvantages of the product as designed and as it alternatively could have been designed may also be considered.[13]

            The Reporters' Note gives an example of how factors other than a safer alternative design affect the determination whether a product is defective:

Comment f lists among the factors a court may consider in determining whether an alternative design is reasonable and whether its omission renders a product not reasonably safe the following: (1) magnitude and probability of the foreseeable risks of harm; (2) the instructions and warnings accompanying the product; and (3) the nature and strength of consumer expectations. A recent California case is in agreement. In Hansen v. Sunnyside Products, Inc., 55 Cal.App.4th 1497, 65 Cal.Rptr.2d 266 (1997), the court held that in a claim alleging defective design of a household cleaner containing hydrofluoric acid, the availability of an alternative safer design was not dispositive of liability. The factfinder could consider the warnings on the bottle describing the danger of exposing a user's skin to the cleaner in risk-utility balancing to decide whether the product was unreasonably dangerous.[14]

Hansen explained its rationale as follows:

We do not think that the risk to the consumer of the design of many household products can be rationally evaluated without considering the product's warnings. Thus, for example, what is the risk of the design of a power saw, or other power tools or equipment, without considering the product's directions and warnings? We dare say that the risk would be astronomically, and irrationally, high. The same could be said about common garden pesticides, or even the household microwave oven. In our view, were we to ask 347*347 jurors to evaluate the risks of the design of many household products without considering their directions or warnings, the practical result would be the withdrawal from the market of many useful products that are dangerous in the abstract but safe when used as directed.[15]

            Another example the Hansen court might have picked is aerosol cans. Such cans are not defective merely because they could be redesigned so as not to explode if punctured or incinerated. A warning against such misuse ought to be sufficient.

            The Court protests that it has not disregarded the effect of warnings in determining whether the possibility of a safer alternative design makes a product defective but has merely left the matter to the jury. But the question remains: can any product be shown not to be defective as a matter of law if a reasonable alternative design could have avoided plaintiff's injury? The Court suggests no such possibility. The Restatement appears to contemplate that a product is not defective as a matter of law if the safer design does not eliminate the risks, or if the warning on the product does not leave a significant residuum of risk, as when "users of the product may not be adequately reached, may be likely to be inattentive, or may be insufficiently motivated to follow the instructions or heed the warnings."[16] The present case illustrates this rule. Concededly, the evidence favorable to Martinez shows that the Goodrich tire's bead wire can be redesigned, mostly to increase its strength, without significantly reducing the tire's utility or increasing the danger of blowouts at highway speeds. Such an alternative design is thus reasonable and safer. But it only reduces—it does not eliminate—the risk that a tire being mounted on a mismatched wheel will explode. The undisputed evidence in this case is that a 16" tire cannot be mounted on a 16.5" wheel, and that if the tire continues to be inflated in an effort to force it to seat on the wheel rim, it will explode. Redesigning the bead wire only means that the tire will withstand higher inflation pressure before exploding. Although there was evidence that the alternate design would prevent the tire from exploding at ordinary mounting pressures, nothing about the design precludes the person mounting the tire from continuing to increase the pressure in an effort to force it to seat on the rim. Because the risk of explosion cannot be eliminated, omission of the alternative design may not make the tire not reasonably safe under comment l of the Restatement.

            Nor was Goodrich's warning ineffective, another factor under comment l. Goodrich's warning label showed a picture of a person being injured by an exploding tire and stated in bright colors:

DANGER

NEVER MOUNT A 16" SIZE DIAMETER TIRE ON A 16.5" RIM.

Mounting a 16" tire on a 16.5" rim can cause severe injury or death. While it is possible to pass a 16" diameter tire over the lip or flange of a 16.5" size diameter rim, it cannot position itself against the rim flange. If an attempt is made to seat the bead by inflating the tire, the tire bead will break with explosive force.

...

NEVER inflate a tire which is lying on the floor or other flat surface. Always use a tire mounting machine with a hold-down device or safety cage or bolt to vehicle axle.

NEVER inflate to seat beads without using an extension hose with gauge and clip-on chuck.

NEVER stand, lean or reach over the assembly during inflation.

...

Failure to comply with these safety precautions can cause the bead to break and the assembly to burst with sufficient force to cause serious injury or death.

            Martinez does not question the adequacy of the warning. It cautions not only against mismatching tires and wheels but against 348*348 inflating tires in certain ways under any circumstances. The record in this case does not show that a warning against mismatching tires and wheels will not reach users. On the contrary, Martinez testified that he saw the warning on the tire, and anyway, he knew that it would be very dangerous to try to mount a 16" tire on a 16.5" wheel. As Martinez put it, "common sense also tells you that where you have a mismatch you can get injured." Martinez was not inattentive, as the garbage truck worker who lost his balance. He knew better than to lean over a tire—any tire—while inflating it. None of the reasons in comment l that warnings may be ineffective apply in this case.

            Nor were the warnings impractical. Despite the fact that Martinez was not provided with any of the safety devices prescribed in the warning—a workable tire mounting machine, a cage, or an extension hose with gauge and clip-on chuck—and may not have been able to bolt the wheel back on the trailer from which it had been removed before mounting the tire, he could have avoided injury by simply not leaning over the tire while inflating it. Martinez testified as follows:

Q Now, I believe you have also testified, Roberto, that while you are inflating a tire you would not want to be leaning over the tire as you inflate it.

A No.

Q And by that I mean when you are airing it up during the mounting process you would want to lean away from it; would you not?

A Well, just don't get over it, you know, just be right beside it.

Q Why would you not want to be leaning over it?

A Because that's the way I was caught.

Q Okay. Do you feel it would be a safety consideration, to be safer to not be over the tire—

A Yes.

Q —while you're inflating it?

A Yes.

            The inboard side of the tire, next to the ground, exploded. Martinez was injured when the wheel struck his head. The wheel also struck the roof of the shop overhead and dented it. Clearly, had Martinez not been leaning over the wheel, as he knew not to do and as the tire label warned against, the tire would not have struck his head.

            Given the ease with which injury can be avoided, there is no evidence that redesigning the bead wire will eliminate a "significant residuum of risk" in the tire as designed with the warning label. In fact, Martinez's own evidence is to the contrary. The record establishes that there has been only one other claimed injury caused by attempting to mount a 16" tire with a warning label on a 16.5" wheel. The record does not reflect whether that claim was ever proved. Thousands of 16" tires have been manufactured with warning labels; millions of 16.5" wheels have been manufactured without warning labels. Martinez's evidence (which should not have been admitted) shows thirty-four claims against Goodrich for injuries caused by mismatching unlabeled 16" tires on 16.5" wheels. There has been one other claim involving a labeled tire. The tire industry should not be compelled to redesign bead wires to make tires harder to explode—or pay damages for failing to do so—simply because one or perhaps two mechanics over the years failed to follow directions or their own good sense.

From a fairness perspective, requiring individual users and consumers to bear appropriate responsibility for proper product use prevents careless users and consumers from being subsidized by more careful users and consumers, when the former are paid damages out of funds to which the latter are forced to contribute through higher product prices.[17]

            Thus, under comment l, there is no evidence that omission of the safer bead wire design made Goodrich's tire not reasonably safe. The risk of explosion could not be eliminated, the warning was clear, effective, and easy to follow, and thus no significant residuum of risk remained in the tire as designed with the warning label attached. In the Court's view, a product manufacturer 349*349 may be liable for failing to make any feasible design change that does not significantly impair a product's utility, if only to prevent rare mishaps from conscious disregard of adequate warnings. That is all the evidence in this case shows. The Court appropriately rejects one extreme position—comment j to Section 402A of the Restatement (Second) of Torts—but then adopts the opposite and equally extreme position. In so doing, the Court swings toward strict liability.

II

The evidence is undisputed that the wheel was defectively designed, and that the defect helped cause the accident. Martinez's expert testified:

Q And in your opinion the Budd wheel, Exhibit 2, is defective.

A Yes, sir.

Q And it was a cause of the accident.

A Yes, one of the causes.

            Martinez's expert explained that a 16.5" wheel can be designed to prevent mounting a 16" tire, but that the tire cannot be designed to prevent attempts to mount it on the wheel. Moreover, the expert explained that stamping the size on the wheel in plain sight, as some wheel manufacturers do, would reduce the risk of mismatching. Martinez acknowledged that it "makes sense" that the size of the wheel be stamped on the outboard side near the valve stem where it can easily be seen. Martinez's co-worker also testified:

Q If when you were working with this wheel you had seen the number 16.5 you wouldn't have proceeded, would you?

A No, sir.

Q You knew based on your experience that you do not mix different sizes?

A No.

Q That's something every mechanic knows?

A Yes, sir.

Q If the wheel that you were working on had the warning ..., "To avoid personal injury during mounting of tire to wheel mount only 16.5 inch diameter tire," you would not have proceeded because that would have told you that the wheel really was 16.5?

A Yes, sir.

            The undisputed evidence is that Budd and Ford did not design their wheel to prevent 16" tires from being mounted on it, and did not stamp the size where it could be seen. Rather, the size was included in a string of numbers stamped on the inboard side of the tire that were hard to find and harder to decipher. The wheel Martinez was working on was so covered by caliche that it would have been virtually impossible to find the tire size.

            Goodrich argues that the evidence conclusively establishes that the wheel rim was defectively designed and that the defective design was a cause of Martinez's injuries. The Court rejects this argument, using the rule that "opinion testimony, even when uncontroverted, does not bind the jury unless the subject matter is one for experts alone".[18] The Court concedes that "expert testimony was probably necessary to show the feasibility of the alternative rim design which would have prevented a mismatched tire from passing over the rim flange."[19] Thus, in the Court's view, with which I agree, the evidence establishes one component of defective design—the possibility of a safer, reasonable alternative rim design.[20] The second component—that the rim was not reasonably safe without the alternative design[21]—is not in this context, according to the Court, a matter for experts alone. Thus, the Court concludes, the evidence does not conclusively establish that the wheel rim was defectively designed. But the Court's conclusion does not follow from its premise. That is, even if the jury was free to disregard expert testimony that the wheel rim was unreasonably dangerous as designed, including the testimony on Martinez's own expert, because the subject was not one for experts alone, the 350*350 matter may nevertheless be conclusively established by the evidence.

            As a general rule, the testimony of a party or a witness who has an interest in the outcome of a suit cannot conclusively establish a matter but raises an issue of credibility on which the jury must pass.[22] But there are exceptions. Even summary judgment can be granted on "uncontroverted testimonial evidence of an interested witness ... if the evidence is clear, positive and direct, otherwise credible and free from contradictions and inconsistencies, and could have been readily controverted."[23] As we explained in Collora v. Navarro:

First, the general rule governing the finality to be given to testimony of an interested witness is by no means an absolute one to be applied in a cut-and-dried fashion. Rather, it is flexible and its application must turn on the facts of each case. Certainly there will be cases where the credibility of an interested witness or party is so suspect that it must go to the jury, even though the testimony is uncontradicted. Then there will also be cases where the testimony of the witness is so clear that the jury should not be allowed to speculate as to his veracity. Between these two extremes lies a broad spectrum of possibilities. Our courts have recognized this in the past by setting forth certain standards by which the rule and its exceptions are to be measured: Is the testimony clear, direct, and positive? Is it internally consistent? Is it contradicted or corroborated by other witnesses? Does the opposing party possess the means to verify or dispute the testimony? Does he have a way to test the witness' credibility? Obviously no one factor automatically can be dispositive in every case.[24]

            Collora was a suit for partition of real property in which plaintiff claimed an interest as defendant's common law wife. Plaintiff testified that she and the defendant had agreed to be husband and wife—one of the elements of a common law marriage—and the evidence conclusively established the other elements. Defendant did not testify or offer evidence in rebuttal. The trial court directed a verdict for the plaintiff, based on her uncontradicted testimony. The court of civil appeals reversed, holding that the plaintiff's testimony did not conclusively establish the existence of an agreement to be husband and wife because the jury could have chosen not to believe her, and thus reasonable minds could differ over the conclusions to be drawn from her testimony.[25] This Court reversed the court of civil appeals, holding that the directed verdict was proper.

            The testimony of Martinez and his co-worker, as well as Martinez's expert witness, that the wheel rim was unreasonably dangerous was contrary to Martinez's interest in the case. It was to Martinez's benefit that the percentage responsibility for causing his injuries assigned to the wheel manufacturers be as low as possible, since he had already settled with them. Testimony that the wheel rim was defectively designed undercut Martinez's position that Goodrich alone was responsible. Because there was nothing to cast suspicion on Martinez's testimony or that of his co-worker and his expert witness concerning whether the wheel rim was unreasonably dangerous as designed, the jury was bound by that testimony. Their testimony, contrary to Martinez's interest, was more like testimony by a disinterested witness. Professors William Powers, Jr. and Jack Ratliff have explained the considerations for determining whether a disinterested witness's testimony is binding on the jury:

Must the jury accept [the uncontradicted testimony by a disinterested witness]? That is, does such testimony, if uncontradicted, [conclusively establish a fact]? The prevailing and better view is that the reasonable minds test should apply here. If there is nothing to cast suspicion on the testimony—that is, if reasonable minds could not differ—then the jury must accept 351*351 it. But, if the testimony is impeached, inconsistent, or otherwise suspect (even though not directly controverted)—that is, if reasonable minds might or might not accept it—then the jury may reject it. McDonald aptly observes that disinterested testimony is, in fact, treated much the same as interested testimony, except that courts are more inclined in the case of interested testimony to find suspicious circumstances that would allow the jury to reject it.[26]

            Even without the testimony of Martinez, his co-worker, and his expert, the record establishes that the wheel rim was defectively designed. As already noted, the factors to be considered in determining whether a product is unreasonably dangerous include the magnitude and probability of the foreseeable risks of harm, the instructions and warnings accompanying the product, the nature and strength of consumer expectations regarding the product, and the relative advantages and disadvantages of the product as designed and as it alternatively could have been designed.[27] Concerning these factors: the risk of injury from mismounting a tire was the same for the defectively designed wheel rim as for the defectively designed tire; the wheel bore no warnings, as the tire did; consumer expectations were no different for the wheel than for the tire; and there was no evidence that the wheel rim design was advantageous or the alternate design disadvantageous. In sum, the evidence established that the tire was less dangerous than the wheel rim, because the tire at least had a warning label and the wheel had none.

            The Court states that Martinez's expert's testimony that the wheel was defective was not evidence that it was unreasonably dangerous. But the expert was directed by Martinez's counsel to assume that "defect is defined by the Court as being unreasonably dangerous." The Court states that the expert's opinion was not conclusive, given the factors the jury was to balance. But the only factors the jury was instructed in the charge to consider were "the utility of the product and the risk involved in its use." Moreover, Martinez's expert testified that the defect in the wheel could have been remedied simply and without difficulty. Specifically, the expert testified as follows:

Q From the moment it came on the market the 16-½-inch rim could have been changed so that you couldn't get the wrong sized tire on it.

A I believe it could, yes.

Q The same thing is not true for the 16-inch tire. There is no way to design or alter the 16-inch tire so that somebody by mistake doesn't try to put it on a 16-½-inch wheel. That is true; isn't it?

A I don't know of a way to do it, no. I have not seen a way to do that.

Q In your view, if the wheel companies were going to come out with a new 16-½-inch size which actually looks somewhat smaller than the 16 they should have designed that new wheel in such a fashion that it looked very different from the old 16; isn't that correct?

A I would certainly recommend that, yes.

Q In your opinion, that could have been done.

A I think it could, yes.

Q That would not have been difficult to do.

A No; I can see where one could do it.

Q And it is further your opinion that once it occurred to the wheel companies that they had done something that was, in fact, causing a substantial problem, they then could have taken what they had and altered its configuration so that you couldn't get the wrong sized tire on it.

A In subsequent productions they could, yes.

Q And that could have been done by something as simple as filling in the well so 352*352 that it wasn't quite so deep; is that a fair statement?

A That's one way to do it. There may be other ways to do it as well, but that's one way to do it.

Q Well, the one way that I just mentioned is one that you have specifically advocated yourself.

A I have done that myself, yes.

Q You not only did it, but you wrote a paper on it.

A Yes, sir.

            The Court also states that the jury was free to speculate that marking the wheel size on the wheel itself might not have prevented Martinez's injury because the marking might have been covered by caliche or not seen by Martinez. But Martinez's expert's testified that if the size had been stamped in the drop center or the well of the wheel, it could not have been obscured. Specifically, the expert testified as follows:

Q Well, the language here where it says, quote, use only 16.5 tires, that was stamped on Kelsey-Hayes wheels starting at about 1980.

A Yes.

Q Exactly where you wanted it to be, near the valve hole.

A Well, I think, I think you are quoting me a little out of context. I said it wouldn't be a good idea, it would be a good idea for that to be there. But the best place for it is in the drop center where there is more room for it and where it is not obstructed by dirt and paints.

* * *

Q Okay. Let's be sure that we understand that in plain and simple English. It means, one, that in 1980 General Motors directed its supplier Kelsey-Hayes to stamp something near the valve hole and to place this warning in the well of every wheel it made after that.

A That is right.

Q And Ford never directed Budd to do anything until Budd stopped making the wheel in 1983.

A That's my recollection, yes.

            Had the wheel size been stamped or labeled in the drop center or well of the wheel, it could not have been obscured, no matter how dirty the wheel became, and Martinez could not have missed it.

            The evidence, including the testimony of Martinez's own expert, conclusively established that the wheel manufacturers bore some responsibility for Martinez's injuries. Since the evidence did not establish the precise percentage of responsibility attributable to the wheel manufacturers, Goodrich is entitled only to a new trial.

III

            Martinez offered, and the district court admitted in evidence, a list of thirty-four lawsuits against Goodrich involving claims for injuries suffered in attempting to mount 16" Goodrich tires on 16.5" wheels. Goodrich complains that Martinez never laid a predicate for admitting this evidence, showing the similarity of the other lawsuits to this one. The Court dismisses Goodrich's complaint in a sentence: "The absence of pictographic warnings on the tires does not render the accidents so dissimilar as to preclude their admission, but merely goes to the weight of the evidence."[28]

            The Court has not met the substance of Goodrich's argument. First, Goodrich argues that Martinez laid no predicate whatever for admission of the evidence. Martinez does not, and cannot, dispute this. The district court admitted the list of lawsuits based solely on the statement of Martinez's counsel that the information had been produced by Goodrich in answer to an interrogatory in discovery. The interrogatory and answer were never offered in evidence (and are not in our record), nor was there any other proof to show the nature of the cases listed. A plaintiff who offers evidence of other accidents is "required to show that the earlier accidents occurred under reasonably similar but not necessarily identical circumstances."[29] Martinez made no showing 353*353 whatever. Thus, the Court holds that evidence of other claims may be admitted with no more predicate than counsel's argument that the claims are similar to the case in which they are offered. This, of course, eviscerates any meaningful evidentiary standard.

            Second, although Goodrich argued that the presence or absence of pictographic labels was a significant difference in claims of injury due to mismatch tires, that was not the only difference Goodrich claimed was significant. Other differences in the cases, according to Goodrich's counsel, were how experienced the injured person was in changing tires, what safety equipment was available, what kind of tire was involved and whether it was radial or bias ply, and what the result was in the case. At least two of the cases were dismissed against Goodrich. The burden was not on Goodrich to show that the other cases were different; the burden was on Martinez to show that they were similar.[30] Nevertheless, Goodrich pointed out important differences to the court.

            Third, the presence of pictographic labels may have been a significant distinction in the cases. Of the thirty-four on the list Martinez offered, only two involved pictographic labels. It may be that fewer accidents involved labeled tires because the labels were effective, or because fewer tires were manufactured with labels, or because labels had been used for only a short time, or perhaps for other reasons. Such arguments would go merely to the weight to be given the evidence, not its admissibility. But without any predicate at all offered by Martinez, it is impossible to say that the presence of the label was not significant.

            Finally, admission of the list was extremely prejudicial to Goodrich. Martinez's counsel told the court before trial that "[i]n all these cases we keep talking about ... they keep killing and injuring people". Martinez's counsel asked his own expert witness: "And some tire companies it only takes twentynine or thirty people to get killed or injured before they come to the conclusion that maybe they ought to change their bead." Martinez's counsel asked Goodrich's expert: "So how many people have you all killed?" Without any predicate whatever, Martinez's counsel was permitted to use the list of lawsuits to insinuate repeatedly that others had been injured or killed in circumstances similar to those in this case. This was plainly error.

            The lawsuit list was not the only exhibit erroneously admitted. The district court also admitted a chart sponsored by Martinez's expert witness showing the history of changes in bead wire design. The Court's conclusion that "all the evidence contained on the chart was already in evidence"[31] is simply false. There is absolutely no evidence of the very prejudicial reference on this time-line to "numerous 16/16.5 mismatch explosions resulting in serious injury or death." It should go without saying that a party should not be permitted to assert repeatedly that an opponent's product has killed and injured people without proof that it is actually so.

            Only a few weeks ago the Court held in Owens-Corning Fiberglas Corp. v. Malone that evidence of anticipated or unpaid punitive damage claims is irrelevant and therefore inadmissible to show punitive damage liability.[32] If anticipated or unpaid punitive damage claims are not probative of punitive damage liability absent evidence of whether such claims have succeeded, I fail to see how actual damage claims are probative of liability for actual damages absent the same evidence. Today's holding that evidence of other claims—whether proven or not, and whether similar or not—is relevant and admissible to show liability directly conflicts with our decision in Owens-Corning and essentially destroys any standard for admitting evidence of other claims.

IV

            The Court holds that the district court erred in denying Goodrich's motion to bifurcate 354*354 the actual and punitive damages phases of the trial, but that the error was harmless because Martinez offered no evidence of Goodrich's net worth and the evidence of other lawsuits against Goodrich was properly admitted. I have already shown that the list of lawsuits should not have been admitted without a predicate showing of similarity between each of the lawsuits and this case. But even if the list of other lawsuits was properly admitted, it alone required a bifurcation of the actual and punitive damage claims.

            As the Court notes, "[i]n [Transportation Insurance Co. v.] Moriel we held that `a trial court, if presented with a timely motion, should bifurcate the determination of the amount of punitive damages from the remaining issues."[33] Although we reasoned in Moriel that evidence of a defendant's net worth offered on a punitive damage claim could unfairly prejudice a defendant on plaintiff's claim for actual damages, we did not suggest that net worth evidence was the only prejudice in trying actual and punitive damage claims together. In the present case, Martinez's counsel's repeated references to other claims against Goodrich were plainly intended to insinuate that if others had been injured trying to mount Goodrich's 16" tires on 16.5" wheels, the tire was defective, and the defect caused Martinez's injuries. The list of other lawsuits, even if properly admitted, unfairly prejudiced Goodrich on Martinez's liability claim as much as evidence of its net worth would have.

            The district court refused Goodrich's motion to bifurcate the trial before evidence was offered and without regard to whether Martinez would offer evidence of net worth. The record shows that the district court refused to follow Moriel because Martinez did not want a bifurcated trial. The court's error clearly prejudiced Goodrich.

* * * * *

            The record in this case shows that Goodrich's tire including the warning label was not defectively designed as a matter of law. Even if that were not so, Goodrich is entitled to have its liability determined in a fair trial in which at least some responsibility for the accident is assigned to Martinez and the wheel manufacturers, evidence of other claims against Goodrich is excluded until a proper predicate is laid for its admission, and punitive damages are tried separately as required by Moriel. Because the Court denies Goodrich any relief, I respectfully dissent.

            [1] The rim involved in this case was manufactured in 1979. The Budd Company ceased manufacturing 16.5" rims in 1983.

            [2] Goodrich has ceased manufacturing bias-ply light truck tires.

            [3] Although not applicable to the present case, the Texas Legislature has recently codified the "reasonably safe alternative" requirement. TEX. CIV. PRAC. & REM.CODE § 82.005 (safer alternative design must be shown by preponderance of the evidence in design defect case).

            [4] While there is language in Turner suggesting that whether a safer alternative design exists is merely one of the factors to be weighed by the jury, see 584 S.W.2d at 846-47, we made clear in Caterpillar that a safer alternative is a prerequisite to a finding of design defect, see 911 S.W.2d at 384. Our approach in Caterpillar is reflected in the new Restatement.

            [5] This illustration is based on Uloth v. City Tank Corp., 376 Mass. 874, 384 N.E.2d 1188 (1978).

            [6] As discussed in part V of this opinion, we uphold the jury's finding that Martinez was not negligent.

            [7] We disagree with the dissenting justices that the trial court admitted evidence of these accidents "with no more predicate than counsel's argument that the claims are similar to the case in which they were offered." Post at 353. At the pretrial hearing on this issue, the Martinezes' counsel informed the court that Goodrich had identified these accidents in response to an interrogatory asking, "How many people do you acknowledge have been injured as a result of mounting or attempting to mount 16 inch diameter tires manufactured by you on a 16.5 inch diameter rim?" While the interrogatory itself may not be in our record, the Martinezes' counsel read it into the record at the pretrial hearing, and no one disputes its wording or that Goodrich identified the thirty-four accidents in response to it. Thus, the Martinezes established that each of the other accidents involved an injury resulting from mounting a 16" Goodrich tire on a 16.5" rim. Further, it was undisputed that each of the other accidents involved a tape bead like that involved in this accident. Under these circumstances, there was an adequate predicate on which to admit the other accidents.

            [8] We thus need not address the court of appeals' conclusion that Goodrich failed to properly preserve this complaint. See 928 S.W.2d at 74.

            [1] RESTATEMENT (THIRD) OF TORTS: PRODUCTS LIABILITY § 2, cmt. f, at 23 (1998).

            [2] Ante at 334.

            [3] See Watkins v. Telsmith, Inc., 121 F.3d 984, 991 (5th Cir.1997) (suggesting that expert testimony would be required in design defect cases).

            [4] Owens-Corning Fiberglas Corp. v. Malone, 972 S.W.2d 35, 41 (Tex.1998).

            [5] 879 S.W.2d 10 (Tex.1994).

            [6] RESTATEMENT (SECOND) OF TORTS § 402A, cmt. j, at 353 (1965).

            [7] General Motors Corp. v. Saenz, 873 S.W.2d 353, 358 (Tex.1993); see Magro v. Ragsdale Bros., Inc., 721 S.W.2d 832, 834 (Tex.1986); Technical Chem. Co. v. Jacobs, 480 S.W.2d 602, 606 (Tex. 1972).

            [8] Saenz, 873 S.W.2d at 359.

            [9] RESTATEMENT (THIRD) OF TORTS: PRODUCTS LIABILITY § 2, Reporters' Note, cmt. l, at 101 (1998).

            [10] RESTATEMENT (THIRD) OF TORTS: PRODUCTS LIABILITY § 2, cmt. l, at 33 (1998) (citation omitted).

            [11] Id., illus. 14, at 33.

            [12] RESTATEMENT (THIRD) OF TORTS: PRODUCTS LIABILITY § 2(b), at 14 (1998) (emphasis added).

            [13] Id. § 2, cmt. f, at 23 (citation omitted).

            [14] Id. § 2, Reporters' Note, cmt. f, at 94.

            [15] Hansen v. Sunnyside Prods., Inc., 55 Cal. App.4th 1497, 65 Cal.Rptr.2d 266, 278 (1997).

            [16] RESTATEMENT (THIRD) OF TORTS: PRODUCTS LIABILITY § 2, cmt. l, at 33 (1998).

            [17] Id. § 2, cmt. a, at 16.

            [18] Ante at 338.

            [19] Ante at 339.

            [20] See RESTATEMENT (THIRD) OF TORTS: PRODUCTS LIABILITY § 2(b), at 14 (1998).

            [21] See id.

            [22] Collora v. Navarro, 574 S.W.2d 65, 69 (Tex. 1978).

            [23] TEX.R. CIV. P. 166a(c).

            [24] Id.

            [25] Navarro v. Collora, 566 S.W.2d 304 (Tex.Civ. App.—Corpus Christi), rev'd, 574 S.W.2d 65 (Tex. 1978).

            [26] William Powers, Jr. & Jack Ratliff, Another Look at "No Evidence" and "Insufficient Evidence", 69 TEX. L.REV. 515, 524 (1991) (citing 3 R. McDonald, TEXAS CIVIL PRACTICE § 11.28.6, at 209 (1984)). See 4 McDonald TEXAS CIVIL PRACTICE § 21.58, at 149-151 (1992).

            [27] RESTATEMENT (THIRD) OF TORTS: PRODUCTS LIABILITY § 2(b), cmt. f, at 23 (1998) (emphasis added).

            [28] Ante at 341.

            [29] Missouri Pac. R.R. Co. v. Cooper, 563 S.W.2d 233, 236 (Tex.1978) (citing Karr v. Panhandle & Santa Fe Ry. Co. 153 Tex. 25, 262 S.W.2d 925, 928, 932 (1953), and Dallas Ry. & Terminal Co. v. Farnsworth, 148 Tex. 584, 227 S.W.2d 1017, 1020 (1950)).

            [30] Id.

            [31] Ante at 342.

            [32] 972 S.W.2d 35, 41 (Tex.1998).

            [33] Ante at 342 (quoting Transportation Ins. Co. v. Moriel, 879 S.W.2d 10, 30 (Tex.1994)).