You will be provided with a reference and some statements. Please determine whether each statement is 'supported', 'unsupported', or 'unknown' with respect to the reference. Please note:
First, assess whether the reference contains any valid content. If the reference contains no valid information, such as a 'page not found' message, then all statements should be considered 'unknown'.
If the reference is valid, for a given statement: if the facts or data it contains can be found entirely or partially within the reference, it is considered 'supported' (data accepts rounding); if all facts and data in the statement cannot be found in the reference, it is considered 'unsupported'.

You should return the result in a JSON list format, where each item in the list contains the statement's index and the judgment result, for example:
[
    {
        "idx": 1,
        "result": "supported"
    },
    {
        "idx": 2,
        "result": "unsupported"
    }
]

Below are the reference and statements:
<reference>
Case 1:21-cv-21940-BB Document 602 Entered on FLSD Docket 10/20/2025 Page 1 of 74

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA
NEIMA BENAVIDES, as Personal
Representative of the Estate of Naibel
Benavides Leon, deceased,

Case No. 21-cv-21940-BLOOM/Torres

Plaintiff,
v.
TESLA, INC., a/k/a Tesla Florida, Inc.,
Defendant.
DILLON ANGULO,

Case No. 22-22607-KMM

Plaintiff,
v.
TESLA, INC. a/k/a Tesla Florida, Inc.,
Defendant.

PLAINTIFFS’ RESPONSE TO TESLA’S AMENDED MOTION
FOR JUDGMENT AS A MATTER OF LAW OR, ALTERNATIVELY,
MOTION FOR NEW TRIAL OR TO AMEND THE JUDGMENT
EATON & WOLK, PL
BY: DOUGLAS F. EATON
FBN #:0129577
Attorneys for Plaintiffs
2665 S. Bayshore Dr., Suite 609
Miami, Florida 33133
Telephone: (305) 249-1640
Telecopier: (786) 350-3079
Email: deaton@eatonwolk.com

EATON & WOLK

Case 1:21-cv-21940-BB Document 602 Entered on FLSD Docket 10/20/2025 Page 2 of 74

TABLE OF CONTENTS
Page
Table of Contents ............................................................................................................................. i
Table of Citations ........................................................................................................................... iii
I.

INTRODUCTION .........................................................................................................1

II.

LEGAL STANDARDS .................................................................................................2

III.

ARGUMENT .................................................................................................................3
A. TESLA IS NOT ENTITLED TO JUDGMENT AS A MATTER OF LAW (OR EVEN
A NEW TRIAL) ON LIABILITY ......................................................................................3
1. The verdict is supported by reliable expert evidence.........................................3
2. Plaintiffs’ design-defect theories are supported by substantial competent
evidence .............................................................................................................4
a. Tesla’s 2019 Model S was defective ...........................................................4
i. Tesla set consumer expectations beyond the capabilities of its
car ...........................................................................................................7
ii. Specific design defects ...........................................................................9
b. Mr. McGee was not the sole proximate cause of Plaintiffs’ injuries .........18
c. The failure-to-warn claim is supported by substantial competent
evidence .....................................................................................................21
i. Tesla had a duty to warn ......................................................................21
ii. Tesla’s warnings were inadequate .......................................................22
iii. Tesla’s inadequate warnings were a legal cause of the crash ..............24
B. THIS COURT DID NOT ERR IN ADMITTING THE COMPLAINED-OF EVIDENCE ..............25
1. Tesla’s efforts to destroy the autopilot data were properly admitted...............25
2. Elon Musk’s statements were properly admitted .............................................31
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3. Evidence of similar accidents was properly admitted......................................32
C. THIS COURT SHOULD NOT DISTURB THE PUNITIVE DAMAGE AWARD .......................35
1. Florida law permits the imposition of punitive damages in this case ..............35
a. Tesla’s development process was grossly negligent ..................................39
b. Tesla’s response to Autopilot failures was grossly negligent ....................41
2. In examining the ratio between the compensatory and punitive award, the
gross compensatory award is used, not the net ................................................42
3. Whether the punitive damage award is compared to the gross or net
compensatory award, the ratio is constitutionally permissible ........................45
a. Tesla’s conduct was reprehensible.............................................................45
b. The ratio between the actual harm suffered by the plaintiffs and the
punitive damages award comports with due process .................................46
c. Comparable punitive damages awards justify the jury’s award ................51
D. THIS COURT SHOULD NOT DISTURB THE COMPENSATORY DAMAGE AWARDS ..........52
IV.

CONCLUSION ...........................................................................................................59

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TABLE OF CITATIONS
Page
Action Marine, Inc. v. Cont'l Carbon Inc.,
481 F.3d 1302 (11th Cir. 2007) ....................................................................................................49
Alderman v. Wysong & Miles Co.,
486 So. 2d 673 (Fla. Dist. Ct. App. 1986) ..............................................................................12, 38
Alevromagiros v. Hechinger Co.,
993 F.2d 417 (4th Cir. 1993) ....................................................................................................6, 12
Am. Cyanamid Co. v. Roy,
498 So. 2d 859 (Fla. 1986)............................................................................................................38
Am. Nat'l Prop. & Cas. Co. v. Felix,
2018 WL 10247022 (W.D. Pa. Nov. 21, 2018) ............................................................................27
Angrand v. Key,
657 So. 2d 1146 (Fla. 1995) ..........................................................................................................53
Arab Termite & Pest control v. Jenkins,
409 So. 2d 1039 (Fla. 1982)..........................................................................................................35
Aubin v. Union Carbide Corp.,
177 So. 3d 489 (Fla. 2015)....................................................................................................4, 5, 31
Auburn Mach. Works Co., Inc. v. Jones,
366 So. 2d 1167 (Fla. 1979)..........................................................................................................18
Auburn Machine. Mosher v. Speedstar Div. of AMCA Intern., Inc.,
979 F.2d 823 (11th Cir. 1992) ................................................................................................18, 19
Bahena v. Kennedy,
2021 WL 8153974 (N.D. Ill. Oct. 25, 2021).................................................................................27
Barrow v. Bristol Meyers Squibb,
190 F.3d 541 (11th Cir. 1999) ........................................................................................................6
Benitez v. Standard Havens Products, Inc.,
7 F.3d 1561 (11th Cir. 1993) ........................................................................................................18
Blundell v. R. J. Reynolds Tobacco Co.,
324 So. 3d 1014 (Fla. 1st DCA 2021) ..........................................................................................30

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BMW of N. Am., Inc. v. Gore,
517 U.S. 559 (1996)........................................................................................................................... 45
Bogle v. McClure,
332 F.3d 1347 (11th Cir. 2003) ..............................................................................................29, 48
Bould v. Touchette,
349 So. 2d 1181 (Fla. 1977)..........................................................................................................53
Bowden v. Caldor, Inc.,
350 Md. 4, 29, 710 A.2d 267 (1998) ............................................................................................30
Braddock v. Seaboard Air Line Railroad Co.,
80 So. 2d 662 (Fla. 1955) ........................................................................................................53, 56
Brand Mktg. Grp. LLC v. Intertek Testing Servs., N.A., Inc.,
801 F.3d 347 (3d Cir. 2015)..........................................................................................................51
Brown v. Glade & Grove Supply, Inc.,
647 So. 2d 1033 (Fla. 4th DCA 1994) ..........................................................................................24
Cates v. Zeltiq Aesthetics, Inc.,
73 F.4th 1342 (11th Cir. 2023) .....................................................................................4, 5, 8, 9, 53
CGB Occupational Therapy, Inc. v. RHA Health Services, Inc.,
499 F.3d 184 (3d Cir. 2007)..........................................................................................................51
Chrysler Corp. v. Wolmer,
499 So. 2d 823 (Fla. 1986)......................................................................................................35, 38
Citrus County v. McQuillin,
840 So. 2d 343 (Fla. 5th DCA 2003) ................................................................................53, 55, 56
Clark v. Chrysler Corp.,
436 F.3d 594 (6th Cir. 2006) .......................................................................................................44
Clear-View Techs., Inc. v. Rasnick,
2015 WL 3453529 (N.D. Cal. May 29, 2015) ..............................................................................27

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Cloroben Chem. Corp. v. Comegys,
464 A.2d 887 (Del. 1983) .............................................................................................................30
Coates v. R.J. Reynolds Tobacco Co.,
375 So. 3d 168 (Fla. 2023)............................................................................................................43
Cohen v. Gen. Motors Corp., Cadillac Div.,
427 So. 2d 389 (Fla. 4th DCA 1983) ............................................................................................21
Cont'l Trend Res., Inc. v. OXY USA Inc.,
101 F.3d 634 (10th Cir. 1996) ......................................................................................................51
Cote v. Philip Morris USA, Inc.,
985 F.3d 840 (11th Cir. 2021) .....................................................................................................49
Darden v. City of Chicago,
2017 WL 4921787 ( Ill. Cir. Ct. 2017) .........................................................................................58
Deiparine v. Siemens Med. Sols. USA Inc.,
2010 WL 5479653 (M.D. Fla. Dec. 2, 2010) ................................................................................36
DiTeresi v. Stamford Health Sys., Inc.,
2010 WL 5493514 (Conn. Super. Ct. Dec. 14, 2010) ..................................................................27
DZE Corp. v. Vickers,
299 So. 3d 538 (Fla. 1st DCA 2020) ............................................................................................19
E.E.O.C. v. Wal-Mart Stores, Inc.,
35 Fed. Appx. 543 (9th Cir. 2002) ................................................................................................29
Eghnayem v. Boston Sci. Corp,
2016 WL 4051311 (S.D. Fla. Mar. 17, 2016), aff'd, 873 F.3d 1304 (11th Cir. 2017)....................6
Epic Sys. Corp. v. Tata Consultancy Services Ltd.,
980 F.3d 1117 (7th Cir. 2020) ......................................................................................................49
Estate of Miller v. Ford Motor Co.,
2004 WL 7330563 (M.D. Fla. July 22, 2004) ..............................................................................36
Evans v. Dean Witter Reynolds, Inc.,
5 P.3d 1043 (Nev. 2000) ................................................................................................................45
Evers v. R.J. Reynolds Tobacco Co.,
195 So. 3d 1139 (Fla. 2d DCA 2015) ...........................................................................................22

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Exxon Shipping Co. v. Baker,
554 U.S. 471 (2008) ......................................................................................................................49
Federated Univ. Police Officers' Ass'n v. Regents of Univ. of California,
2015 WL 13273308 (C.D. Cal. July 29, 2015) .............................................................................27
Ferebee v. Chevron Chem. Co.,
552 F. Supp. 1293 (D.D.C. 1982), aff'd, 736 F.2d 1529 (D.C. Cir. 1984) .............................24, 25
First Healthcare Corp. v. Hamilton,
740 So. 2d 1189 (Fla. 4th DCA 1999) ..........................................................................................29
Gen. Motors Corp. v. McGee,
837 So. 2d 1010 (Fla. 4th DCA 2002) ....................................................................................42, 56
Grieco v. Daiho Sangyo, Inc.,
344 So. 3d 11 (Fla. 4th DCA 2022) ..............................................................................................20
Guarantee Ins. Co. v. Heffernan Ins. Brokers, Inc.,
2015 WL 11216329 (S.D. Fla. Aug. 28, 2015)............................................................................29
Haemonetics Corp. v. Dupre,
238 B.R. 224 (D. Mass. 1999) .......................................................................................................27
Hall v. Ochs,
817 F.2d 920 (1st Cir.1987) ....................................................................................................28, 29
Hallmark Cards, Inc. v. Monitor Clipper Partners, LLC,
758 F.3d 1051 (8th Cir. 2014) ......................................................................................................29
Hardee v. State,
534 So. 2d 706 (Fla. 1988)............................................................................................................38
Haskell v. Tan World, Inc.,
2003 WL 24054815 (Iowa Dist. Dec. 9, 2003).............................................................................44
Henderson v. Ford Motor Co.,
72 F.4th 1237 (11th Cir. 2023) .....................................................................................................34
Howell v. Greyhound Lines, Inc.,
2009 WL 10666051 (N.D. Ga. Apr. 3, 2009) ...............................................................................29
Hundley ex rel. Hundley v. Rite Aid of S.C., Inc.,
529 S.E.2d 45 (S.C. Ct. App. 2000) ..............................................................................................30

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I-Gotcha, Inc. v. Mcinnis,
903 S.W.2d 829 (Tex. App. 1995) ................................................................................................45
In re Parmalat Sec. Litig.,
472 F. Supp. 2d 582 (S.D.N.Y. 2007), aff'd, 240 Fed. Appx. 916 (2d Cir. 2007) ........................27
Inter Med. Supplies, Ltd. v. EBI Med. Sys., Inc.,
181 F.3d 446 (3d Cir.1999)...........................................................................................................51
Intramed, Inc. v. Guider,
93 So. 3d 503 (Fla. 4th DCA 2012) ................................................................................................... 50
Jarvis v. Carnival Corp.,
2017 WL 6989149 (S.D. Fla. Aug. 24, 2017)...............................................................................34
Jeep Corp. v. Walker,
528 So. 2d 1203 (Fla. 4th DCA 1988) ..........................................................................................36
Jennings v. BIC Corp.,
181 F.3d 1250 (11th Cir. 1999) ......................................................................................................9
Johns-Manville Sales Corp. v. Janssens,
463 So. 2d 242 (Fla. 1st DCA 1984) ............................................................................................36
Johnston v. Love,
940 F. Supp. 738 (E.D. Pa. 1996) .................................................................................................27
Joler v. Scott Paper Co.,
65 F.3d 160 (1st Cir. 1995) ...........................................................................................................26
Jordan v. Jenkins, Syl. Pt. 2,
859 S.E.2d 700 (W. Va. 2021) ......................................................................................................30
Kaufman v. Wyeth, LLC,
2011 WL 10483576 (S.D. Fla. Aug. 15, 2011).........................................................................6, 15
King v. Eastern. Airlines, Inc.,
536 So. 2d 1023 (Fla. 3d DCA 1987) ...........................................................................................35
Kerrivan v. R.J. Reynolds Tobacco Company,
953 F.3d 1196 (2020) ............................................................................................................ passim
Kohler v. Medline Indus., Inc.,
453 So. 2d 908 (Fla. 4th DCA 1984) ............................................................................................19

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Koonce v. Commonwealth,
412 Mass. 71 E.2d 220 (1992) .......................................................................................................27
Kroon v. Beech Aircraft Corp.,
628 F.2d 891 (5th Cir. 1980) ........................................................................................................18
Laskey v. Smith,
239 So. 2d 13 (Fla. 1970) ..............................................................................................................52
Lassiter v. Int'l Union of Operating Eng'rs,
349 So. 2d 622 (Fla. 1976) ......................................................................................................43, 53
Liggett Group, Inc. v. Davis,
973 So. 2d 467 (Fla. 4th DCA 2007) ..............................................................................................9
Linkepic Inc. v. Vyasil, LLC,
2019 WL 11717093 (N.D. Ill. Oct. 15, 2019)...............................................................................27
Lipphardt v. Durango Steakhouse of Brandon, Inc.,
267 F.3d 1183 (11th Cir. 2001) ......................................................................................................2
Lomangino v. Polaris Indus. Inc.,
2023 WL 3397411 (S.D.W. Va. May 11, 2023) ...........................................................................29
Lopez v. S. Coatings, Inc.,
580 So. 2d 864 (Fla. Dist. Ct. App. 1991 ...............................................................................24, 58
Marlo v. K-Mart Corp.,
756 So. 2d 213 (Fla. 3d DCA 2000) ..............................................................................................55
Martinez v. City of New York,
2023 WL 4627739 (E.D.N.Y. July 19, 2023) ...............................................................................29
Matter of Energetic Tank, Inc.,
607 F. Supp. 3d 328 369 (S.D.N.Y. 2022), aff'd, 110 F.4th 131 (2d Cir. 2024) ..........................26
McGinnis v. Am. Home Mortgage Servicing, Inc.,
817 F.3d 1241 (11th Cir. 2016) ....................................................................................2, 47, 48, 50
McGriff v. Minn. Mut. Life Ins. Co.,
127 F.3d 1410 (11th Cir. 1997) ......................................................................................................2
McKenzie v. United States Tennis Ass'n Inc.,
2024 WL 3849884 (M.D. Fla. Aug. 16, 2024) .......................................................................26, 27

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Medina as next friend for N.M. v. Izquierdo,
594 F. Supp. 3d 1045 (N.D. Ill. 2022) ..........................................................................................27
Morga v. FedEx Ground Package Sys., Inc.,
2022-NMSC-013, 512 P.3d 774 ...................................................................................................57
Nordin v. Gregory,
566 So. 2d 60 (Fla. 5th DCA 1990) ..............................................................................................53
Norton v. Snapper Power Equip., Div. of Fuqua Indus., Inc.,
806 F.2d 1545 (11th Cir. 1987) ......................................................................................................7
Odom v. R.J. Reynolds Tobacco Co.,
254 So. 3d 268 (Fla. 2018)................................................................................................52, 56, 58
Owens-Corning Fiberglas Corp. v. Ballard,
749 So. 2d 483 (1999)...................................................................................................................30
Passantino v. Johnson & Johnson Consumer Products, Inc.,
212 F.3d 493 (9th Cir. 2000) ..................................................................................................28, 29
Philip Morris USA Inc. v. Cohen,
102 So. 3d 11 (Fla. 4th DCA 2012) ...............................................................................................43
Philip Morris USA, Inc. v. Cuculino,
165 So. 3d 36 (Fla. 3d DCA 2015) ...............................................................................................59
Philip Morris USA v. Williams,
549 U.S. 346 (2007) ......................................................................................................................43
Rety v. Green,
546 So. 2d 410 (Fla. 3d DCA 1989) ..............................................................................................35
Richards v. Michelin Tire Corp.,
21 F.3d 1048 (11th Cir. 1994) ........................................................................................................3
Ritter v. Stanton,
745 N.E.2d 828 (Ind. Ct. App. 2001)............................................................................................57
R.J. Reynolds Tobacco Co. v. Buonomo,
138 So. 3d 1049 (Fla. 4th DCA 2013) ........................................................................................49
R.J. Reynolds Tobacco Co. v. Evers,
232 So. 3d 457 (Fla. 2d DCA 2017) .....................................................................................49

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R.J. Reynolds Tobacco Co. v. Martin,
53 So. 3d 1060 (Fla. 1st DCA 2010) ......................................................................................48, 49
R.J. Reynolds Tobacco Co. v. Schleider,
273 So. 3d 63 (Fla. 3d DCA 2018) ...............................................................................................59
R.J. Reynolds Tobacco Co. v. Townsend,
118 So. 3d 844 (Fla. 1st DCA 2013) ............................................................................................43
Rogers v. State,
498 So. 2d 655 (Fla. 2006)............................................................................................................34
Royal v. Black & Decker Mfg. Co.,
205 So. 2d 307 (Fla. 3d DCA 1967) .............................................................................................12
S. Union Co. v. Sw. Gas Corp.,
281 F. Supp. 2d 1117 (D. Ariz. 2003) ..........................................................................................25
Santillan v. Sharmouj,
289 Fed. Appx. 491 (3d Cir. 2008) ...............................................................................................29
Schafer v. Wickham,
1999 WL 961273 (E.D. Pa. Oct. 15, 1999)...................................................................................29
Schoeff v. R.J. Reynolds Tobacco Co.,
232 So. 3d 294 (Fla. 2017)........................................................................................................... 45, 49
Scribner v. Waffle House, Inc.,
993 F. Supp. 976 (N.D. Tex. 1998) ..............................................................................................29
SE Prop. Holdings, LLC v. Judkins,
822 Fed. Appx. 929 (11th Cir. 2020) ............................................................................................29
Siedlecki v. Arabia,
699 So. 2d 1040 (Fla. 4th DCA 1997) ............................................................................................35
Sims v. BMW of N. Am. LLC,
2025 WL 724047 (M.D. Fla. Mar. 5, 2025) ...........................................................................37, 52
Sorrels v. NCL (Bahamas) Ltd.,
796 F.3d 1275 (11th Cir. 2015) ...............................................................................................33 ,34
Standard Havens Products, Inc. v. Benitez,
648 So. 2d 1192 (Fla. 1994)....................................................................................................18, 19

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Stanley Indus., Inc. v. W.M. Barr & Co.,
784 F. Supp. 1570 (S.D. Fla. 1992) ..............................................................................................24
State Farm Mut. Auto. Ins. Co. v. Campbell,
538 U.S. 408 (2003) ................................................................................................................43, 54
Tampa Elec. Co. v. Stone & Webster Eng'g Corp.,
367 F. Supp. 27 (M.D. Fla. 1973) .................................................................................................44
Tesla, Inc. v. Banner,
411 So. 3d 1 (Fla. 4th DCA 2025) ......................................................................................... passim
Toyota Motor Co., Ltd. v. Moll,
438 So. 2d 192 (Fla. 4th DCA 1983) ............................................................................................36
Upshaw v. Sunrise Cmty. of Tennessee, Inc.,
2017 IER Cases 286375 (Tenn. Ct. App. 2017) ...........................................................................30
Valladares v. Bank of Am. Corp.,
197 So. 3d 1 (Fla. 2016)................................................................................................................36
Voynar v. Butler Mfg. Co.,
463 So. 2d 409 (Fla. 4th DCA 1985) ............................................................................................10
Williams v. Bumpass,
568 So. 2d 979 (Fla. 5th DCA 1990) .............................................................................................44
Williams v. First Advantage LNS Screening Solutions Inc.,
947 F.3d 735 (11th Cir. 2020) ......................................................................................................49
Winner v. Sharp,
43 So. 2d 634 (Fla.1950)...............................................................................................................56
Zambrano v. Devanesan,
484 So. 2d 603 (Fla. 4th DCA 1986) ............................................................................................53

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Authorities
Florida Statute § 768.1257 ...............................................................................................................6
Florida Statute § 768.72 .................................................................................................................36
Florida Statute § 768.74 ............................................................................................................53,54

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I.

INTRODUCTION

Despite having been told by a jury that it selected that its product was partially responsible
for the death of Naibel Benavides and the life-changing injuries sustained by Dillon Angulo, Tesla
refuses to acknowledge any responsibility for this tragic accident. Tesla’s Motion for Judgment
as Matter of Law or, Alternatively, Motion for New Trial or to Amend the Judgment combines its
unsuccessful closing argument, rejected by the jury, and its previously raised legal arguments,
rejected by this Court.
Tesla’s narrative continues to ignore the fundamental question in this case: Why was Mr.
McGee recklessly disengaged from driving his car in the twenty seconds before this accident? His
decision to disengage from the driving task, to focus on his call, and to reach for his phone, didn’t
happen in a vacuum. It happened because he had become overly trusting of the autopilot system
that Tesla’s CEO had sold to the world as safer than a human driver. If Mr. McGee hadn’t been
conditioned to rely on his autopilot, this accident wouldn’t have occurred. As Plaintiffs told the
jury during opening, Mr. McGee was a bad actor, but every actor needs a stage, and Tesla set the
stage.
As Plaintiffs proved during trial, Tesla released autopilot into the world after a deficient
development process. Tesla’s grandiose statements about autopilot’s capabilities wildly overstated
its actual performance record. When Tesla became aware that serious, often fatal, accidents were
resulting from inattentive drivers delegating the entire driving task to autopilot, Tesla resisted calls
to improve the glaring flaws in its system. Despite being aware of hundreds of crashes for which
it internally assigned fault to the autopilot system, Tesla avoided making common sense, feasible
changes to its driver monitoring system.
Predictably, the federal agency entrusted to ensure automobile safety - NHTSA - found
autopilot defective, and declared Tesla an industry outlier for the number of high energy frontal
plane crashes, like the instant crash, its cars were involved in. While Tesla did make some
inadequate improvements to its driver monitoring system as part of the 2023, Tesla chose not to
present evidence that it had done so, so the evidence before the jury was that Tesla had done
nothing in response to NHTSA’s findings, even though it had stipulated that there were a number
of feasible safety measures it could have implemented.

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The jury in this case paid close attention, took notes, engaged in a thoughtful deliberation,
and issued a verdict that was supported by ample evidence. This Court should let their verdict
stand in all respects.
II.

LEGAL STANDARDS

“The standard for granting a renewed motion for judgment as a matter of law under Rule
50(b) is precisely the same as the standard for granting the pre-submission motion [under 50(a) ].”
McGinnis v. Am. Home Mortgage Servicing, Inc., 817 F.3d 1241, 1254 (11th Cir. 2016). The
question before this Court is “whether the evidence is ‘legally sufficient ... to find for the party on
that issue.’” Id. “In considering whether the verdict is supported by sufficient evidence, ‘the court
must evaluate all the evidence, together with any logical inferences, in the light most favorable to
the [Plaintiffs].’” Id. “[I]t is the jury's task—not [the court's]—to weigh conflicting evidence and
inferences, and determine the credibility of witnesses.” Id.
Tesla’s motion for JMOL ignores this burden, and instead provides this court with a version
of its closing argument, presenting the evidence and inferences in a light most favorable to Tesla.
This is plainly incorrect. Below, Plaintiffs provide the Court with a summary of the evidence, and
the reasonable inferences the jury can derive therefrom, in the proper light. When viewed properly,
Tesla fails to meet the standard for obtaining a JMOL.
As its fallback position, Tesla requests a new trial. But “[b]ecause it is critical that a judge
does not merely substitute his judgment for that of the jury, ‘new trials should not be granted on
evidentiary grounds unless, at a minimum, the verdict is against the great—not merely the
greater—weight of the evidence.’” Lipphardt v. Durango Steakhouse of Brandon, Inc., 267 F.3d
1183, 1186 (11th Cir. 2001) Tesla also fails to meet this standard.
Tesla cites to McGriff v. Minn. Mut. Life Ins. Co., 127 F.3d 1410, 1416 (11th Cir. 1997),
for the principle that “If even one of multiple theories submitted to the jury lacks a legally sufficient
evidentiary basis, Tesla is entitled to a new trial.” Dkt. 591 at 6. But then Tesla inaccurately suggest
that this principle means it is entitled to a new trial if “Plaintiffs failed to meet their evidentiary
burden as to any of Plaintiffs’ theories (ODD, DMS, AEB/FCW, and failure to warn).”

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The jury in this case was instructed on only two theories of liability – design defect and
failure to warn.1 Dkt. 536 at 8. Tesla did not ask for an alternative instruction or an itemized
verdict form breaking out the three sub-theories (ODD, DMS, and AEB/FCW) incorporated in the
design defect claim. So long as one of those sub-theories had a legally sufficient evidentiary basis,
then Plaintiff’s design defect theory had a legally sufficient evidentiary basis. As we will
demonstrate below, however, each of the design defect theories were sufficiently proven.
While Plaintiffs must show (and have shown) that both the design defect and failure to
warn claims have a legally sufficient basis in order to avoid a new trial, the converse is true for
Tesla’s request for JMOL. Because Tesla did not request an itemized verdict form, the two issue
rule applies. Richards v. Michelin Tire Corp., 21 F.3d 1048, 1055 (11th Cir. 1994) As a result,
“Because the jury returned a general verdict, to be entitled to JNOV on [] the [] negligence cause
of action, Appellant must show that [Plaintiffs] failed to make out a case under both [their] design
and warning claims.” Id. Tesla has failed to do so here.
III.

ARGUMENT
A. TESLA IS NOT ENTITLED TO JUDGMENT AS A MATTER OF LAW (OR EVEN A NEW
TRIAL) ON LIABILITY.
1. The verdict is supported by reliable expert evidence.

Tesla begins by re-arguing its previously rejected Daubert objections to the testimony of
Missy Cummings and Alan Moore. In doing so, Tesla suggests that their testimony failed to meet
a standard not required under Florida law. This will not be the only time in its motion Tesla
misstates Plaintiffs’ evidentiary burdens.
Tesla misleadingly suggests that Moore and Cummings were required to identify “a
comparable car in 2019 that incorporated all of” the “hypothetical features that Tesla should have

1

(a) the product fails to perform as safely as an ordinary consumer would expect when used as
intended or when used in a manner reasonably foreseeable by the manufacturer or the risk of
danger in the design of the 2019 Tesla Model S Autopilot feature outweighs the benefits of the
design, and, if so, whether that failure was a legal cause of damage to Naibel Benavides Leion and
Dillon Angulo.
(b) Whether the foreseeable risks of harm from the 2019 Tesla Model S Autopilot feature could
have been reduced or avoided by providing additional instructions or warnings, and the failure to
provide those warnings made the product unreasonably dangerous, and if so, whether that failure
was a legal cause of damage to Naibel Benavides Leion and Dillon Angulo.
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supposedly incorporated into its Autopilot system.” Dkt. 591 at 8. 2 This is wrong. As this Court
noted in its order denying summary judgment, not only were Plaintiffs not required to point to a
comparable car with such features, they were not required to point to the existence of a reasonable
alternative design:
In Florida, a Plaintiff need only satisfy the consumer expectation test to prove a
design defect claim. See Aubin v. Union Carbide Corp., 177 So. 3d 489, 510-11
(Fla. 2015). Neither Plaintiffs nor their experts must establish a reasonable
alternative design, so long as they demonstrate that a reasonable consumer in
McGee’s shoes would have expected the Vehicle to either give an audible
warning of obstacles in the road or trigger the automatic brakes with sufficient
time to avoid the collision. Id.
Dkt. 428 at 35.
This Court spent 30 pages in its prior order methodically examining the propriety of Dr.
Cummings’ and Mr. Moore’s opinions. Dkt. 428 at 20-49. Tesla has not provided any reason for
this Court to reconsider its conclusions from that order.
2. Plaintiffs’ design-defect theories are supported by substantial
competent evidence.
a. Tesla’s 2019 Model S was defective.
With respect to Plaintiffs’ claim for strict liability based on design defect and failure to
warn, Tesla’s Rule 50(b) simply repeats the arguments it made in its motion for summary judgment
and its Rule 50(a) motion. This Court has twice rejected those arguments before, and it should do
so again.
In its order denying summary judgment, this Court set forth the relevant product defect
standards as follows:
Florida law generally requires a plaintiff to show a product was defectively
designed under the “consumer-expectation test,” the “risk-utility test,” or both.
Aubin v. Union Carbide Corp., 177 So. 3d 489, 510-11 (Fla. 2015); see also Cates
v. Zeltiq Aesthetics, 73 F.4th 1342, 1351 (11th Cir. 2023) (explaining that “[t]wo
different tests determine whether a product is defective: (1) the consumer
expectations test and (2) the risk utility test.”). Under the consumer-expectation
2

Tesla then states that “no such car existed,” because Tesla’s expert’s “[t]esting of the most
advanced 2019 vehicles showed none could have avoided a crash at McGee’s speed.” Dkt. 591 at
8. This is not true, as we will address later.
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test, a product is defective if “the product fails to perform as safely as an ordinary
consumer would expect when used as intended or in a manner reasonably
foreseeable by the manufacturer.” Tillman v. C.R. Bard, Inc., 96 F. Supp. 3d 1307,
1338-39 (M.D. Fla. 2015); RESTATEMENT (SECOND) OF TORTS § 402A;
see also Aubin, 177 So. 3d at 504 (“[U]nder the consumer-expectation theory[,]
a product is defectively designed if the plaintiff is able to demonstrate that the
product did not perform as safely as an ordinary consumer would expect when
used in the intended or reasonably foreseeable manner.”). The risk-utility test
requires a plaintiff to demonstrate that “the foreseeable risks of harm posed by
the product could have been reduced or avoided by the adoption of a reasonable
alternative design . . . and the omission of the design renders the product not
reasonably safe.” Cates, 73 F.4th at 1351.
Dkt. 428 at 70-71.
In evaluating the expectations of an ordinary consumer, the jury considers the manner in
which a manufacturer markets its product. “[A] manufacturer plays a pivotal role in crafting the
image of a product and establishing the consumers' expectations for that product, a portrayal which
in turn motivates consumers to purchase that particular product.” Aubin v. Union Carbide Corp.,
177 So. 3d 489, 511 (Fla. 2015) “The consumer expectations test thus rightly focuses on the
expectations that a manufacturer creates.” Id. In denying Tesla’s motion for summary judgment
on the product defect claim, this Court held: “Given Tesla’s numerous representations about the
capabilities of the Autopilot system, there is at least a genuine dispute as to whether it would be
obvious to the average consumer not to trust Tesla’s Autopilot system to largely drive itself and
avoid collisions.” Dkt. 428 at 80.
Throughout its design defect argument, Tesla makes a series of misstatements as to the
Plaintiffs’ burden of proof. For example, Tesla suggests that compliance with industry standards
precludes a design defect claim, citing Alderman v. Wysong & Miles Co., 486 So. 2d 673, 679 (Fla.
Dist. Ct. App. 1986). Dkt. 591 at 12. But Alderman simply held that while a defendant may admit
evidence that its product met industry standards, such compliance is not “prima facie proof that
[defendant] met the appropriate legal standard of care.” Alderman at 678-79.
Tesla continues its misdirection by citing to Alevromagiros v. Hechinger Co., 993 F.2d
417, 422 (4th Cir. 1993) for the proposition that a single manufacturer’s competing product cannot
establish a standard for the industry. (Dkt. 591 at 12-13) This holding is entirely irrelevant for two
reasons. First, Alevromagiros held that it because of the principle cited by Tesla, the trial court did
not in excluding evidence of a competitor product. But Tesla didn’t seek to exclude evidence of
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competitors’ level 2 systems in this case. Second, and more importantly, “the jury in
[Alevromagiros] did not need to see examples of competing products in order to understand the
nature of the product at issue.” Alevromagiros at 422. The same is true here. Plaintiffs needed to
prove that the Tesla did not perform as safely as an ordinary consumer would expect, not that it
did not meet industry standards. Such standards were simply evidence that the jury could, and did,
consider in rendering their verdict.
Equally incorrect is Tesla’s contention that “Plaintiffs failed to prove that Tesla’s AEB and
FCW did not reflect ‘the state of the art of scientific and technical knowledge and other
circumstances that existed at the time of manufacture,’ as required to establish liability under
Florida law. Fla. Stat. § 768.1257.” Dkt. 591 at 17. (emphasis supplied) This is another
misstatement of the law. As explained in Barrow v. Bristol-Myers Squibb, 1998 WL 812318, at
*41 (M.D. Fla. Oct. 29, 1998), aff'd sub nom. Barrow v. Bristol Meyers Squibb, 190 F.3d 541 (11th
Cir. 1999):
A state of the art analysis is relevant to the adequacy of the design of a product
under the risk-benefit/utility test. The custom of an industry can be relevant to
this defense, but such custom is to be considered with other evidence and is not
dispositive. Compliance with the state of the art does not necessarily require
finding in the defendant's favor.
Id. (emphasis added).
Additionally, like the defendant’s argument in Eghnayem v. Boston Sci. Corp, 2016 WL
4051311, at *4 (S.D. Fla. Mar. 17, 2016), aff'd, 873 F.3d 1304 (11th Cir. 2017), Tesla’s “argument
misunderstands the burden of proof”:
Section 768.1257 operates as a defense—it allows a manufacturer “to show that
its design of the product was state-of-the-art and, therefore, not defective since it
complied with the best known and available technology.” Kaufman v. Wyeth,
LLC, No. 1:02–CV–22692, 2011 WL 10483576, at *6 (S.D. Fla. Aug. 15, 2011).
As with any affirmative defense, the defendant bears the burden of proof.
Ellingham v. Fla. Dep't of Children & Family Servs., 896 So. 2d 926, 927 (Fla.
Dist. Ct. App. 2005). Triggering the state-of-the-art defense requires more than
simply pointing to a deficiency in the plaintiffs' case, as BSC tries to do here.
Moreover, like the defendant’s argument in Eghnayem, Tesla’s “argument is plainly refuted by the
testimony of the plaintiffs' [] design-defect expert[s], [] who testified based on scientific
knowledge available at the time of the [product’s] manufacture.” Eghnayem at *4.

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Here, it is undisputed that Tesla could have geo-fenced the use of its autopilot had it chosen
to. In fact, Tesla stipulated that five improvements to its DMS were available to implement in
2019, had it chosen to. Dkt. 536 at 5. It is also undisputed that driver monitoring cameras were
existing technology in 2019. It is undisputed that Tesla had control over the car’s ability to brake
or warn based on its detection of objects in its path or the end of drivable space, and undisputed
that competitors’ cars could and did warn under similar circumstances, as demonstrated by Tesla’s
accident reconstruction expert. But, as the evidence received at trial demonstrated, Tesla did none
of these things.
Like the jury in Norton v. Snapper Power Equip., Div. of Fuqua Indus., Inc., 806 F.2d
1545, 1549–50 (11th Cir. 1987), this “jury considered this conflicting evidence [on state of the art]
and found that the [product] was defective. As long as there is some substantial evidence (i.e.,
more than a mere scintilla) to support this verdict, the jury's decision will stand.” See also
Eghnayem at *5 (“In short, because BSC failed to demonstrate, as a matter of law, that the Pinnacle
was the state-of-the-art at the time of its manufacture, I cannot displace the jury's verdict based on
the state-of-the-art defense.”)
i. Tesla set consumer expectations beyond the capabilities of its
car.
Tesla ignores the most important part of the consumer expectations test - the manner in
which Tesla’s marketing created consumer expectations. Several witnesses described how Tesla
marketed autopilot in a manner that created unreasonable expectations relative to its actual
capabilities. First, Dr. Mendel Singer testified regarding Tesla’s vehicle safety report, in which
Tesla represented to its customers that autopilot resulted in a 40% reduction in collisions when it
was used. Dkt. 575 (Tr. Day 2), at 178:19–79:2. Dr. Singer demonstrated, however, that making
a single adjustment to account for miles driven on the highway would reduce that figure to a 10%
reduction in crashes. Id. at 178:5–79:7. Dr. Singer explained that because Tesla did not provide
the raw data that went into the vehicle safety report, there was no way to validate the accuracy of
the figures, and thus Tesla grossly overstated the safety benefit of autopilot. Id. at 179:10–80:5.
Dr. Cummings explained that the manner in which Elon Musk and Tesla marketed
autopilot promoted its abuse and misuse. Dkt. 576 (Tr. Day 3), at 33:24–34:3. Dr. Cummings
noted that Mr. McGee’s expectations were similar to most consumers. Id. at 103:1–6. He felt the
car was his “co-pilot,” which “would stop for obstacles in the road” and would allow him, if he
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dropped his phone, to “reach down and pick it up because [his] co-pilot was driving.” Id. at 103:1–
6.
Dr. Cummings was shown several statements of Elon Musk and asked to weigh in on their
veracity. In October of 2015, Musk described the car’s sensor array and its ability to detect objects.
Dr. Cummings explained that there was no evidence to suggest that a production Tesla in October
2015 was capable of doing the things that Musk claimed it could at the time. Id. at 142:3–7. In
2016, Musk stated that, at that time, Model S could drive autonomously with greater safety than a
person. Id. at 146:22–147:5. Dr. Cummings replied that this statement was neither accurate then
nor today. Id. at 147:10–14. Musk explained that the 2016 Tesla’s existing radar hardware would
be able to detect anything “dense” in its path and “initiate a braking event,” “both when Autopilot
is active and when it’s not active.” Id. at 149:18–22. Musk further stated that when Autosteer is
on, the car knows whether an object is in its probable path or not, and the car would be able to
initiate a “much more comfortable braking experience,” which would allow the car “to brake to a
complete stop.” Id. at 150:4–11. Musk explained that radar complemented the car’s vision system,
which might not recognize what an object in the road is. The radar, however, would know that
there was something in the road that it was going to hit, and that it should not hit, even in adverse
conditions like fog and rain. Id. at 138:6–10, 150:12–22. Dr. Cummings testified that this
description of Tesla’s detection and braking capability was neither accurate in 2016 nor today. Id.
at 152:4–10.
Another marketing tool Tesla used to manage consumer expectations was the “paint it
black” video, which Elon Musk tweeted to his followers with the accompanying message: “The
person in the driver’s seat is only there for legal reasons. He is not doing anything. The car is
driving itself.” Id. at 154:13–20. The video shows the car leaving the Tesla headquarters, driving
on the highway, returning to Tesla and parking itself. Dr. Cummings explained that a production
model Tesla was not capable of performing as the video demonstrated in 2016. Id. at 155:2–56:15.
Additionally, she explained that the video had been staged, and that the car in the video had gotten
into an accident during its filming. Id. at 156:22–57:1, Dkt. 582 at 201:4-9.
Tesla’s owner’s manual was another source of information that could impact consumer
expectations. For instance, Alan Moore pointed out that the manual indicates that forward
collision warning works to detect objects up to 525 feet away. Dkt. 577 (Tr. Day 4), at 196:15–
17. The owner’s manual did not describe the limitations of forward collision warning, which never
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activated in this accident. Thus, the forward collision warning did not activate in a manner that an
ordinary consumer who had read the manual would expect. Id. at 196:17–21.
As noted above, the consumer expectation test is “based on an objective standard and not
the viewpoint of any particular consumer.” Liggett Group, Inc. v. Davis, 973 So. 2d 467, 475 (Fla.
4th DCA 2007), citing to Jennings v. BIC Corp., 181 F.3d 1250, 1255 (11th Cir. 1999). See also
Cates v. Zeltiq Aesthetics, Inc., 73 F.4th 1342, 1353 (11th Cir. 2023), cert. denied, 144 S. Ct. 526
(2023) (same). Thus, Mr. McGee’s own expectations are entirely irrelevant to the issue before the
jury. However, unsurprisingly, Mr. McGee’s expectations were similar to those encouraged by
Tesla’s marketing. Dkt. 579 (Tr. Day 6), at 60:25–61:15. Mr. McGee expected the car to perform
like his Jeep and other cars in that respect, and it did not. Id. Mr. McGee further explained that
he got “too comfortable” with the technology, and “trusted the technology too much.” Id. at 51:15–
25.
It was against these expectations created by Tesla that the jury evaluated decided that Mr.
McGee’s Tesla was defective.
ii. Specific design defects
OPERATIONAL DESIGN DOMAIN (“ODD”) Tesla begins its argument on the ODD defect
with a straw-man argument, stating “Plaintiffs presented no evidence that an ordinary consumer
would have expected that geofencing would limit where the driver could use Autopilot’s driverassistance features for his own car.” Dkt. 591 at 12. Of course, this isn’t the relevant expectation.
The expectation is that Tesla wouldn’t allow use of Autopilot in an area unless it could be safely
used there. The Tesla did not meet that expectation.
The evidence that the Tesla was defective because Tesla allowed it to operate outside of its
ODD was the same as the evidence that this Court deemed sufficient to deny summary judgment
and JMOL. Both Dr. Cummings and Mr. Moore testified that the Autopilot was defective because
Tesla allowed the car to be operated in operational domains for which it was not designed. Dkt.
576 (Tr. Day 3), at 31:8–14; Dkt. 577 (Tr. Day 4), 161:19–24. Dr. Cummings contrasted Tesla’s
decision to allow drivers to access autopilot on surface streets with that of Cadillac, who geofenced
their Super Cruise product to make sure that it was used only on roads that had been pre-mapped
and approved for its use. Dkt. 576 (Tr. Day 3), at 57:18–24.

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Mr. Moore testified that Tesla had infinitely more knowledge about the risks of using
autopilot outside of its ODD on Card Sound Road than Mr. McGee had. Dkt. 577 (Tr. Day 4),
162:9–11. Thus, Tesla’s decision to allow Autopilot use on this uniquely challenging road was a
bigger contribution to the accident than Mr. McGee’s decision to use Autopilot. Id. at 162:11–14.
Mr. Moore pointed to Cadillac and General Motors’ decision to geofence Super Cruise as
a reasonable design alternative. Had Mr. McGee been driving a car that geofenced its autopilot
product to its ODD, the accident would not have occurred because the system would not have
engaged on the road.
From a consumer expectation standpoint, an ordinary consumer would expect that Tesla
would only allow the use of Autopilot on roads it had determined to be safe for use. From a riskrisk-utility standpoint, both experts demonstrated that the foreseeable risks of harm posed by
allowing use of Autopilot outside its ODD could have been reduced or avoided by the adoption of
geofencing used by other manufacturers. Additionally, Tesla could have “provide[d] additional
checks when the features are being used outside of controlled access highways and when
approaching traffic controls.” Dkt. 582 (Tr. Day 9), at 19:7–20. The jury can infer the omission
of these safeguards rendered Autopilot not reasonably safe. 3
As the Court held in its Order Denying Summary Judgment:
Moore [] may also conclude that limiting Autopilot to its ODD would have
prevented the collision as well, given that both conclusions apply the same
reasoning. Simmons, 576 F. Supp. 3d at 1146; Schenone, 2014 WL 9879924, at
*8 (“[T]he expert’s experience in conjunction with knowledge, skill, training or
education alone may provide a sufficient basis to the reliability of the expert’s
opinion.”). Because limiting Autopilot to its ODD would have disabled the
system while McGee was driving on Card Sound Road, Moore reasonably
concludes that McGee would have been manually driving his Vehicle on the date
of the collision and, therefore, he would likely have been more engaged and more
responsive to the issues that arose. See Hendrix ex rel. G.P., 609 F.3d at 1198
n.10 (“Daubert does not require certainty; it requires only reliability.”). Moore
does not have to completely rebut alternative possibilities. He need only provide
a sound reason for his conclusion that it is more likely than not Tesla’s conduct
rendered the product defective and caused Plaintiffs’ injuries. See 325 Goodrich
3

Tesla’s citation to Voynar v. Butler Mfg. Co., 463 So. 2d 409 (Fla. 4th DCA 1985) is inapposite.
The language quoted by Tesla was referring the Court’s approval of the trial court’s decision to
exclude evidence of subsequent changes to the allegedly defective product, which “would confuse
and mislead the jury.” Voynar at 412. No such evidence related to ODD was admitted here.

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Ave., LLC v. Sw. Water Co., 891 F. Supp. 2d 1364, 1381-82 (M.D. Ga. 2012)
(explaining that the causation expert was not required to “definitely conclude”
the cause of the damage for the opinion to be reliable, nor did he have to exclude
all other “potential sources of causation”). Accordingly, based on the record
evidence Moore relied upon, the Court finds that the grounds for Moore’s
conclusions on the ODD defect are reliable.
Dkt. 428 at 33.
Plaintiffs argue that Cummings’ opinion about the use of Autopilot outside its
ODD is valid for largely the same reasons Moore’s opinion is admissible—
permitting use outside the Vehicle’s ODD exceeded the product’s stated
capabilities.
Dkt. 428 at 42.
This Court later concluded:
Plaintiffs have adequately demonstrated that autopilot design led Tesla drivers,
McGee in particular, to become complacent and over rely on autopilot to operate
their vehicles. Additionally, Plaintiffs provided evidence that allowing Tesla
drivers to utilize autopilot outside of its ODD and without any training was
unreasonably dangerous as it increased the likelihood that Tesla owners would
attempt to rely on autopilot in conditions where Tesla knew the technology was
unlikely to succeed. As Plaintiffs experts opined, if Tesla had eliminated or at
least mitigated these foreseeable dangers, McGee would likely had been paying
more attention and would have been prepared to avoid the subject collision.
Dkt. 428 at 74. Tesla has provided no basis for this Court to change its ruling.
DRIVER MONITORING SYSTEM (“DMS”) The evidence that the Tesla was defective
because Tesla’s driver monitoring system was inadequate to prevent dangerous misuse of the
system was the same as the evidence that this Court deemed sufficient to deny summary judgment
and JMOL. It was also more than sufficient to support the jury’s verdict against Tesla.
As a starting point, the jury heard Tesla’s own admission of defect in NHTSA’s ODI
resume. Pls.’ Ex. 61. Tesla itself admitted “that the prominence and scope of the system’s controls
maybe insufficient to prevent driver misuse.” Dkt. 577 (Tr. Day 4), at 19:8-12. NHTSA similarly
concluded that “Tesla’s weak driving engagement system was not appropriate for autopilot’s
permissive operating capabilities” and “this mismatch resulted in a critical safety gap between
drivers’ expectations of the L2 system’s operating capability and the system’s true capabilities
[which] led to forceable misuse and avoidable crashes.” Pls.’ Ex. 61. NHTSA’s conclusion, which
aligns with Tesla’s conclusion, indicated that in certain circumstances, “Autopilot’s system
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controls and warnings were insufficient for a driver-assistance system that requires constant
supervision” by a human driver. Dkt. 577 at 20:24–21:2.
This was supported by expert testimony at trial. Dr. Cummings explained that during its
investigation, NHTSA reviewed videos from each accident, and in the vast majority of the crashes,
the object the car collided with was in view for more than 10 seconds. Id. at 31:14–32:5. From
these videos, it became apparent that the driver was not engaged, which cued NHTSA to look at
the issue of driver monitoring. Id. at 32:6–12. Dr. Cummings explained that when using
automated driving systems like autopilot, drivers get complacent. Id. at 32:13–20. Drivers “get
so comfortable in the car that they don’t even glance [up] for a half second [or] look up to see what
can kill them or kill other people.” Id. at 32:18–20.
Dr. Cummings further explained that NHTSA determined that frontal plane crashes similar
to the instant collision made up the highest percentage of crashes in the accident database that it
studied. Id. at 17:11–17. That led NHTSA to determine that Autopilot did not sufficiently ensure
driver attention and appropriate use. Id. at 17:18–20. As part of the investigation, NHTSA
obtained accident data from other companies to compare them to Tesla’s data. Id. at 17:20–25.
From that data, NHTSA determined that Tesla alone had this high number of frontal plane crashes
resulting from inadequate driver monitoring. Id. at 18:1–4. As a result, NHTSA determined that
Tesla was an industry outlier, with a substantially inferior driver engagement system given
Autopilot’s permissive operating capability. Id. at 38:14–20.4 This defect was admitted to exist in
all makes and model years. Id. at 18:24-19:1.5
Plaintiffs established that Mr. McGee was one of the drivers that obviously became
complacent and relied on Autopilot so much that he did not pay attention to the road. Mr. McGee
testified that he got too comfortable with the car and “trusted the technology too much.” Dkt. 579
(Tr. Day 6), at 51:24–25. He believed that he would not have taken his eyes off the road and

4

Tesla cites Royal v. Black & Decker Mfg. Co., 205 So. 2d 307, 310 (Fla. 3d DCA 1967) in a
manner once again meant to suggest that Plaintiffs were required to prove the DMS “did not meet
industry standards” Dkt. 591 at 14. As with its prior citations to Alderman and Alevromagiros,
Royal does not stand for such a proposition. Instead, it simply acknowledges that a deviation from
industry standards (e.g. a NHTSA finding that Tesla’s DMS was an “industry outlier”) may be
presented as evidence to support a defect claim.
5

For this reason, Tesla’s suggestion that NHTSA’s defect finding was somehow irrelevant because
it was issued five years after the accident (DE591 at 15) is readily dismissed.
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reached for his phone had he not been using Autopilot. Id. at 116:4–8. We know further that the
flashing red light at the intersection was visible over a quarter mile away. Dkt. 578 (Tr. Day 5),
at 37:13–18. The jury could reasonably infer that Mr. McGee was not paying attention for the
over 20 seconds that it would take to cover that distance.
Tesla’s own expert, Dr. Cades, confirmed much of Plaintiff’s expert’s opinions regarding
driver expectations when using autopilot. He was cross examined using an article he had written
which stated that “[c]onsumers exhibit too much trust when interacting with the systems. In
particular, drivers often expect that they do not need to be as vigilant when only monitoring the
state of the vehicle compared to when they are actively driving the vehicle.” Dkt. 584 at 20:8-15.
His article further noted “drivers who are new to automated vehicle technology, tend to perform
secondary tasks as much as 261 percent more frequently in self-driving vehicles, as compared to
a vehicle without ADAS.” Id. at 21:6-12. Dr. Cades agreed that Mr. McGee was engaged in a
secondary task at the time of the crash. Id. at 21:13-18. He additionally wrote “Another related
issue in drivers with too much trust in ADAS technology is that they may operate the vehicle at its
limits and assume he or she remains protected by the vehicle in this concept known as 'risk
compensation.” Id. at 2:19-24.
Dr. Cades further explained, “drivers in partially automated vehicles have sometimes been
observed to drive at increased speeds with decreased headway and exhibit less control of lane
position.” Id. at 22:2-7. Dr. Cades agreed that “[d]isengagement from the driving task makes it
difficult for the driver to respond in sudden emergencies because they are out of the loop,” meaning
that drivers like Mr. McGee “have lost awareness of their environment and the situation they're
in.” Id. at 23:24-5-24:1-3. Finally, Dr. Cades confirmed that “[d]rivers spend less time gazing at
the road ahead when utilizing adaptive cruise control, and they exhibit increased reaction times to
emergent situations when various parts of the driving task are automated as compared to when
they are not.” Id. at 24:11-18.
Both Dr. Cummings and Dr. Moore pointed to the use of in-cabin camera systems as a
safer alternative design to combat the driver engagement issues described by Dr. Cades.
Specifically, in the Cadillac equipped with Super Cruise, the driver focused camera not only
checks to see if the driver’s head is looking straight forward, it actually reads the driver’s eyes.
Dkt. 576 (Tr. Day 3), at 56:15–57:5. Mr. Moore explained that the camera system would only
allow a driver to look away from the road for 5 or 6 seconds at a time, so it was much more
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restrictive than Tesla’s torque base system, and would have led to a very different outcome had it
been implemented on this road. Dkt. 577 (Tr. Day 4), at 158:19–59:11.
Mr. Moore explained that measuring steering wheel torque is not a good proxy for
measuring driver awareness. Id. at 133:18–20. Simply having a hand or hands on the wheel does
not mean the driver is monitoring the roadway ahead. Id. at 133:20–22. Tesla’s monitoring system
can produce false positives where the car assumes the driver is paying attention when, in fact, he
is not. Id. at 133:23–25. Mr. Moore testified that Tesla contributed to this accident because its
driver monitoring system did not accurately reflect whether Mr. McGee was paying attention to
the road and doing his part as a driver. Id. at 161:22–62:4. The jury could have also reached this
conclusion based on Mr. McGee’s failure to take any action in the 20 seconds in which the flashing
red light was visible to him.
Mr. Moore reviewed Mr. McGee’s history of autopilot misuse. In the three months that he
owned the car, Mr. McGee had 23 “strike outs,” which occurred when he had ignored three audible
alerts before the car turned off autopilot. Id. at 153:20–54:3. However, these strike outs proved
to be only a minor inconvenience to Mr. McGee, who simply had to pull over, park the car, and
then begin driving again. Id. at 154:23–55:21. Mr. Moore faults Tesla for failing to take any action
with respect to Mr. McGee’s misuse of autopilot. The strike outs were easily removable and did
nothing to change to Mr. McGee’s behavior or limit the use of the feature. They were simply
recorded, and Mr. McGee was allowed to continue his dangerous misuse of the product. Id. at
162:5–8.
Mr. Moore explained that Tesla could have told Mr. McGee that he was given a strike out
because he was not paying attention. Id. at 156:18–21. Tesla could have told him that in the future
that if he kept his hands on the wheel and paid attention, he would not receive further strike outs,
thus encouraging him to use the product responsibly. Id. at 156:21–22. Instead, the only message
the car provided at each strike out was that Autopilot was no longer available. Id. at 156:22–24.
There were a number of countermeasures that Tesla stipulated were feasible to have been
implemented prior to this accident, but that were not. Specifically, Tesla could have incorporated
additional controls and alerts to those already existing to encourage the driver adhere to their
driving responsibilities when autopilot was engaged; included additional controls and alerts to the
driver to keep their hands on the steering wheel and pay attention to the roadway; increased the
prominence of visual alerts on the user interface; provided additional checks when the features
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were being used outside of the ODD and when approaching traffic controls; and improved
suspension of Autopilot if the driver repeatedly failed to demonstrate continuous and sustained
driving responsibility when autopilot is engaged. Dkt. 582 (Tr. Day 9), at 19:7–23. The jury could
reasonably infer that had Tesla taken the countermeasures that were available to it, it would have
prevented Mr. McGee’s misuse of the autopilot and thus this accident.
From a risk-utility standpoint, the evidence demonstrated that the foreseeable risks of harm
posed by Tesla’s inadequate DMS could have been reduced or avoided by the adoption of the
countermeasures set forth above. The jury could reasonably have inferred that the omission of
these safeguards rendered the DMS not reasonably safe.
As the Court noted in its order denying summary judgment: “there is a reasonable basis for
Moore to infer that if the strikeout earlier in the drive was accompanied by a one-week disablement
of Autopilot, Mr. McGee would have been required to be more engaged during the drive, which
would have meant Mr. McGee would have been more likely to be paying attention and prepared
to intervene as he approached the intersection of Card Sound Road and ultimately would have
avoided the crash.” Dkt. 428 at 26-27. Tesla has provided no basis for this Court to change its
ruling.
AUTOMATIC EMERGENCY BRAKING (AEB) AND FORWARD COLLISION WARNING (FCW).
The evidence that the Tesla was defective because it did not brake or warn Mr. McGee was the
same as the evidence that this Court deemed sufficient to deny summary judgment and JMOL. It
was more than sufficient to sustain the jury’s verdict against Tesla.
Tesla begins by once again misstating Plaintiffs’ burden of proof, asserting that, “Plaintiffs
never even tried to prove that any car could have stopped under th[e] conditions [of the accident].”
Dkt. 591 at 16. (emphasis in original).6 Tesla further asserts that “an ordinary consumer would not
expect his car to do something that no other car in existence could do.” Dkt. 591 at 17. (emphasis
in original). Neither contention is correct.
First, Plaintiffs were not required to prove that another car would have warned or braked
under the circumstances, because the question before the jury is whether an ordinary consumer
would have expected the Tesla to warn or brake under the circumstances.

6

In Kaufman v. Wyeth, LLC, No. 1:02-CV-22692, 2011 WL 10483576, at *7 (S.D. Fla. Aug. 15,
2011), the district court described the “requirement that Plaintiff prove an alternative design” as
“nonexistent.”
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An ordinary consumer would expect the Tesla to provide a forward collision warning
(“FCW”) of objects as far as 525 feet in front of the Tesla’s path of travel, when traveling at speeds
below 90 mph, as described in the operating manual. Dkt. 576 (Tr. Day 3), at 95:15–18, 103:18–
25. The owner’s manual did not inform consumers of any limitations to FCW. Exhibit 53 at 113.
The forward collision warning did not provide any warning to Mr. McGee before this accident.
Id. at 95:19–22. An ordinary consumer would expect the Tesla to stop for an object in its path, as
Elon Musk described it would three years earlier. Dkt. 576 at 149:18–22. The limitations of the
automatic emergency breaking (“AEB”) system were not explained in the owner’s manual. Id. at
105:2-6, 107:23-108:1.
Second, other cars in existence in 2019 were capable of warning drivers under similar
conditions, as demonstrated by Tesla’s own expert. Dkt. 586 (Tr. Day 13) at 181:10-182:12. Both
the test cars he utilized in his reconstruction provided an FCW, even though the parked car was
“outside the lane,” (Dkt. 591 at 16), with the Subaru warning at a full 3.6 seconds prior to collision.
Id. The fact that the Subaru performed better with its high beams on was irrelevant, because the
Tesla’s augmented video and data showed that it saw an object in its path at 352 feet, providing it
plenty of time to warn Mr. McGee and prevent the accident. Dkt. 578 (Tr. Day 5) 149:19–51:8.
The jury was entitled to reach the reasonable inference that the Tesla’s FCW system should have,
at a minimum, outperformed the Subaru’s.
Turning to a consumer’s expectation that the Tesla would brake, Dr. Cummings explained
that there were two emergency braking systems that should have been activated to avoid this
accident. First, automatic emergency breaking (“AEB”) is available whether or not autopilot is
on. Dkt. 576 at 103-7-13. A second feature called drivable space backup breaking was introduced
after the Kanagawa accident in 2018. Id. at 76:20–21. When the car is in autopilot and recognizes
that it is approaching the limits of its drivable space, it will trigger an emergency breaking
maneuver. Id. at 76:24–77:2. It is essentially a backup to the AEB when the car notes that it is
about to depart drivable space. Id. at 77:2–11.
In this accident, neither AEB nor backup breaking engaged. Id. at 101:25–02:3. Mr.
McGee’s foot on the pedal did not prevent AEB or drivable space backup breaking from engaging.
Id. at 103:7–25. Tesla did not offer any explanation for the failure of drivable space backup
breaking. Id. at 102:8–15.

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With respect to Tesla’s decision to allow autopilot to continue to be engaged when
someone is overriding the cruise control outside of the ODD, Dr. Cummings indicated that this
was a bad design choice. Id. at 97:18–25. She had seen many accidents where people were just
resting their foot on the pedal, and did not realize that they were slightly depressing the pedal and
accelerating. Id. at 97:25–98:3. If she was on Tesla’s design team, she would have recommended
disengaging autopilot when a driver depressed the accelerator, to avoid any mode confusion. Id.
at 98:3–4.
Mr. Moore confirmed Dr. Cummings’ opinion that drivable space backup breaking was
not disabled when Mr. McGee pressed the accelerator. Dkt. 577 (Tr. Day 4), at 175:4–8. Mr.
Moore had not seen any explanation as to why drivable space backup braking did not activate here.
Id. at 199:22–200:2. Mr. Moore explained why, in Banner, backup breaking failed, because the
drivable space extended underneath the truck’s trailer, so the Tesla thought it had more room to
proceed than it actually did. Dkt. 578 (Tr. Day 5), at 155:23–56:16. This case presented the
opposite scenario because the drivable space clearly stopped at the end of the road, presenting the
opportunity for a “perfect application of this technology.” Id. at 156:17–20. However, the
technology failed. Id. at 156:21–22.
As for the car’s failure to provide a forward collision warning, Mr. Moore testified that the
data demonstrates that the autopilot did not warn Mr. McGee of anything in the approximately 20
seconds before the crash. Dkt. 577 (Tr. Day 4), at 187:14–16. This is, of course, consistent with
Mr. McGee’s statement that he received no warning. Dkt. 579 (Tr. Day 6), at 58:7–12.
Mr. Moore presented the jury with a series of points on the timeline of the accident where
the car could have braked on its own, as it had the capability to do, or could have warned Mr.
McGee. Dkt. 578 (Tr. Day 5), at 27:7–16. Mr. Moore noted that car log data demonstrated that
Mr. McGee exhibited a reasonable reaction time when warned. Using Mr. McGee’s typical
reaction time, Mr. Moore was able to determine that he would have avoided the accident
completely if he had been warned at any distance greater than 200 feet from Angulo’s Tahoe. Id.
at 16:11–22, 149:19–52:2.
As the Court held in the order denying summary judgment, “No additional evidence is
needed to reasonably infer that the triggering of either of these systems following the detection of
the obstacles would have made it more likely than not that the collision would never have
occurred.” Dkt. 428 at 34. Tesla has provided no basis for this Court to change its ruling.
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b. Mr. McGee was not the sole proximate cause of Plaintiffs’ injuries.
Tesla argues that because Mr. McGee admitted he was not paying attention, he must be the
sole proximate cause of the accident. Tesla’s argument is both legally and factually incorrect.
Tesla legal arguments are based on cases that either do not correctly apply Florida law or
are easily factually distinguishable. We start with Tesla’s reliance on Kroon v. Beech Aircraft
Corp., 628 F.2d 891 (5th Cir. 1980), which Tesla cites throughout its argument for the principle
that misuse of the product brakes the causal chain. The majority in Kroon failed to properly apply
Florida law, as explained by the dissent:
Under Florida law, a manufacturer may be liable for an injury resulting from its
failure to guard against foreseeable carelessness, even though the victim's own
carelessness (fault) in encountering the undue risk thereby created is a
contributory cause of the accident (thereby reducing the damages awarded, but
not defeating recovery). Auburn Machine Works Co., Inc. v. Jones, 366 So.2d
1167 (Fla.1979).
Kroon at 894. (Tate, J., dissenting).
In Auburn Mach. Works Co., Inc. v. Jones, 366 So. 2d 1167, 1171–72 (Fla. 1979), the
Florida Supreme Court explained the role that misuse of a product plays in a liability analysis:
Contributory negligence of the consumer or user by unreasonable use of a product
after discovery of the defect and the danger is a valid defense. . . . The defendant
manufacturer may assert that the plaintiff was negligent in some specified manner
other than failing to discover or guard against a defect, such as assuming the risk,
or misusing the product, and that such negligence was a substantial proximate
cause of the plaintiff's injuries or damages. . . . The fact that plaintiff acts or fails
to act as a reasonable prudent person, and such conduct proximately contributes
to his injury, constitutes a valid defense. In other words, lack of ordinary due care
could constitute a defense to strict tort liability.
In 1992, the 11th Circuit reversed a district court for giving a jury instruction suggesting
that product misuse is a complete bar to liability: “Florida law does not suggest that misuse will
‘negate liability’ as the district court instructed. Instead, misuse is simply to be considered as part
of the comparative fault calculus,” citing to Auburn Machine. Mosher v. Speedstar Div. of AMCA
Intern., Inc., 979 F.2d 823, 826 (11th Cir. 1992).
In 1993, the 11th Circuit sought additional guidance from the Florida Supreme Court on
the scope of a product misuse defense under Florida law. In Benitez v. Standard Havens Products,
Inc., 7 F.3d 1561, 1565 (11th Cir. 1993), the 11th Circuit certified the following question: “DOES
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A PLAINTIFF'S KNOWING MISUSE OF A PRODUCT IN A MANNER NEITHER
INTENDED NOR FORESEEABLE BY THE DEFENDANT MANUFACTURER BAR
RECOVERY, AS A MATTER OF LAW, ON A PRODUCTS LIABILITY CLAIM SOUNDING
IN NEGLIGENCE?” Standard Havens Products, Inc. v. Benitez, 648 So. 2d 1192, 1193 (Fla.
1994).
The Florida Supreme Court answered the question in the negative, explaining that in 1976,
the Court “adopted the principles of strict liability in tort under section 402A of the Restatement
(Second) of Torts and held that product misuse was simply a type of negligence that may be
asserted as a defense.” Standard Havens Products, Inc. at 1196-97. The Court further explained:
Consistent with the comparative negligence principles espoused in Hoffman, and
our holdings in Blackburn, Auburn Machine Works, and West, we conclude that
product misuse is not an absolute bar to a products liability claim sounding in
negligence. Rather, much like the earlier demise of the absolute defense of
contributory negligence, product misuse merges into the defense of comparative
negligence. Consequently, product misuse reduces a plaintiff's recovery in
proportion to his or her own comparative fault.
Id. at 1197. This is the law in Florida on product misuse, not Kroon.7
Tesla also mistakenly relies on a pair of cases addressing a specific factual defense not
available in the instant case – when a driver misuses a product to become voluntarily intoxicated,
such an act cuts the causal chain. Tesla attempts to hide this important distinguishing fact, by
disingenuously editing its quote from DZE Corp. v. Vickers, 299 So. 3d 538, 540 (Fla. 1st DCA
2020), omitting the italicized portion: “Florida law does not permit a jury to consider proximate
cause where a person responsible for the injury is voluntarily impaired or intentionally misuses a
product.” Dkt. 591 at 20. The product at issue in DZE was synthetic marijuana, sold as pot-pouri.
The Court’s decision turned on the fact that the driver intentionally misused an intoxicating

7

Tesla also relies on Kohler v. Medline Indus., Inc., 453 So. 2d 908 (Fla. 4th DCA 1984). Dkt.
591 at 21. Kohler relied primarily on Kroon and is therefore of questionable precedential value.
As the dissent noted, the majority failed to grapple with the question of whether “the intervening
act of the nurse's aide in forgetting to close the bag foreseeable by the manufacturer in light of its
failure to furnish labels and instructions as to the bag's operation (it furnished labels and
instructions for other urinary bags it marketed) and in light of the bag's peculiar design?” Kohler
at 910 (Walden, J., dissenting) The dissent answered its question, “If it was foreseeable, then the
manufacturer will not be relieved of liability by the intervening act,” citing to Auburn Machine
Works, Co., Inc., supra, among others. Id.
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product. DZE Corp. at 541. It further characterized this misuse as “an unforeseeable, intervening
act.” Id. at 540.
Tesla’s reliance on Grieco v. Daiho Sangyo, Inc., 344 So. 3d 11 (Fla. 4th DCA 2022) is
similarly misplaced. Grieco also involved the “unintended and illegal use of a product” resulting
in the “voluntary impairment” of the driver. Grieco cited DZE as the basis for its holding that:
“Even though the risk of a driver simultaneously abusing a dust-removal product and consequently
striking either a vehicle or person off a roadway is within the boundless realm of conceivable
possibilities, it was not objectively reasonable for Merrill's criminal conduct to be foreseeable as
a matter of law to establish either duty or proximate cause in the context of this product liability
action.” Grieco at 27. But Mr. McGee did not misuse the Tesla to become intoxicated. Mr.
McGee’s misuse was not only foreseeable, Tesla had actual knowledge of it. Mr. McGee’s
excessive reliance on autopilot did not render Mr. McGee the sole proximate cause. It was properly
considered by the jury in finding Mr. McGee 66% at fault for the accident.
As we noted earlier, Tesla’s factual argument ignores the fundamental question in this case
- why was Mr. McGee disengaged from the driving process? Tesla’s argument that the accident
would have happened in the absence of autopilot is based on the false premise that Mr. McGee
would have behaved in the same fashion if he had not been using autopilot. But there is no
evidence in this record to support such an inference. Mr. McGee himself testified that he doesn’t
believe he would have reached for his phone if he hadn’t been using autopilot. Dkt. 579 (Tr. Day
6) at 116:4-8. The evidence also demonstrates that Mr. McGee took his eyes off the road for far
longer than the time it took him to reach over to grab his phone. As noted by Tesla’s counsel during
cross-examination of Dr. Moore, the flashing red light marking the stop bar was visible over 2000
feet from the intersection. Dkt. 578 (Tr. Day 5), at 37:13–18 (T.7/18/25 am at 33). Yet Mr. McGee
did not become aware of where he was until he had crossed the stop bar. It takes over 20 seconds
to travel the 2000 feet from the point the stop light first became visible. Mr. McGee was clearly
not paying attention to his surroundings for that entire time period. The jury could reasonably
infer that the reason he was not was because he was relying on the autopilot that he regularly
abused. The jury was free to conclude that Mr. McGee would not have been so careless had he
not been relying on the autopilot.
In its conclusion, this Court summarized its ruling as follows, while also disposing of
Tesla’s argument that Mr. McGee was the sole proximate cause:
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The Court also rejects Tesla’s argument that McGee was the indisputable sole,
substantial cause of the collision such that Tesla may avoid all liability for any
purported defect in Autopilot’s design. While McGee conceded that he was
responsible for operating the Vehicle safely and failed to do so, that does not
necessarily lead to the conclusion that he alone is responsible for the resulting
collision, particularly given McGee’s testimony that he expected Autopilot to
avoid the collision. See ECF No. [318-9] at 46:3-5, 176:7. The law is clear that
there may be multiple proximate causes of a given injury so long as each is a
substantial cause of the injury. See Ruiz v. Tenet Hialeah Healthsystem, Inc., 260
So. 3d 977, 982 (Fla. 2018) (“[T]he law does not require an act to be the exclusive
or even the primary cause of an injury in order for that act to be considered the
proximate cause of the injury[.]”).
As explained above, there is sufficient and reliable record evidence that both
McGee and Tesla substantially contributed to the collision. Plaintiffs have
adequately demonstrated that Autopilot’s design led Tesla drivers, and McGee in
particular, to become complacent and over rely on Autopilot to operate their
vehicles. Additionally, Plaintiffs provided evidence that allowing Tesla drivers to
utilize Autopilot outside of its ODD and without any training was unreasonably
dangerous as it increased the likelihood that Tesla owners would attempt to rely
on Autopilot in conditions where Tesla knew the technology was unlikely to
succeed. As Plaintiffs experts opine, if Tesla had eliminated, or at least mitigated,
these foreseeable dangers, McGee would likely have been paying more attention
and would have been better prepared to avoid the subject collision. Because the
Court has already determined that Plaintiffs’ expert opinions as to the design
defects and causation are not based on mere conjecture or speculation, the Court
will not grant summary judgment on Plaintiffs’ design defect claim as those issues
are materially in dispute. See Jackson v. H.L. Bouton Co., 630 So. 2d 1173, 1175
(Fla. 1st DCA 1994).
Dkt. 428 at 49; DE 428 at 73-74. Tesla has provided no basis for this Court to change its ruling.
Nor has Tesla provided any basis for this Court to find that the jury’s apportionment of fault was
against the manifest weight of the evidence. To the contrary, it is the product of sound judgment
based on a thorough evaluation of the evidence.
c. The failure-to-warn claim is supported by substantial competent
evidence.
i. Tesla had a duty to warn.
Tesla’s suggestion that it had no duty to warn is nonsense. The reason Tesla provided
warnings in the first instance is because it was aware of its duty. Per Cohen v. Gen. Motors Corp.,
Cadillac Div., 427 So. 2d 389, 390–91 (Fla. 4th DCA 1983), “A duty to warn arises where a
product is inherently dangerous or has dangerous propensities.” “Further, a supplier of a product
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who knows or has reason to know that the product is likely to be dangerous in normal use has a
duty to warn those who may not fully appreciate the possibility of such danger.” Id.
Tesla’s duty was not, as it suggests, to warn McGee that reckless driving can lead to an
accident. Dkt. 591 at 23-24. The Court previously addressed this framing in its order denying
MSJ:
The Court disagrees with Tesla’s framing of the relevant question. The
appropriate inquiry is not whether driving distracted is an obvious danger. Rather,
the question is whether the dangers of using and relying on driver assistance
technology, specifically Tesla’s Autopilot system, to avoid a collision is an
obvious danger or at least a danger of which McGee was already aware. See e.g.,
Byrnes, 887 F. Supp. at 281 (“A corollary rule is that where the potential danger
posed by a product is open and obvious . . . there is no duty on the part of the
manufacture or distributor to warn users of said danger.”) (emphasis added). The
Court does not find that the danger associated with relying on the Autopilot
system to avoid a collision was such an obvious danger that no reasonable minds
could differ.
Dkt 428 at 79.
The fact that Mr. McGee had some knowledge of the limitations of autopilot is not a bar to
Plaintiffs’ failure to warn claim. It is indisputable that the state of Mr. McGee’s knowledge
regarding the limitations and capabilities of autopilot was not the equal of Tesla’s. In Evers v. R.J.
Reynolds Tobacco Co., 195 So. 3d 1139, 1140–41 (Fla. 2d DCA 2015), Reynolds argued that the
smoker could not have been defrauded because “there was evidence [the smoker] was aware of the
health risks that the tobacco companies had concealed.” The Second District rejected the argument,
holding that the Tobacco company did not establish that the smoker knew as much as Reynolds
did about the health effects and addictive nature of its product. Id. Indeed, the evidence here
showed Mr. McGee believed that autopilot was more capable than it actually was. The risks of
using autopilot were not obvious to him.
ii. Tesla’s warnings were inadequate.
Tesla cites to Tesla, Inc. v. Banner, 411 So. 3d 1 (Fla. 4th DCA 2025)’s statement that Tesla
“repeatedly warned against misuse” of autopilot. Dkt. 591 at 24-25. Again, Banner’s statements
regarding its plaintiff’s evidence do not bind this Court. Banner doesn’t describe any evidence
offered by its plaintiff related to a failure to warn claim. As this Court noted in its order denying
summary judgment, the record here is simply different. The Court cannot punish these Plaintiffs
for the Banner plaintiff’s evidentiary deficiencies.
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The evidence that Tesla failed to adequately warn Mr. McGee of the risks associated with
the use of autopilot was the same evidence that this Court deemed sufficient to deny summary
judgment and JMOL. It was more than sufficient to sustain the jury’s verdict against Tesla.
Both Dr. Cummings and Mr. Moore testified that Tesla’s warnings regarding the use of
autopilot were insufficient to convey the risks associated with driver inattention, and further, that
the in car warnings regarding driver inattention were inadequate to prevent Autopilot misuse.
Dr. Cummings explained that the initial warning given to drivers when they first activate
autopilot and the warning contained in the owner’s manual were insufficient to appraise drivers of
the risks they are incurring in misusing the system. First, Dr. Cummings explained that in general,
the use of the phrase “Autopilot” is incongruous with instructions that a driver must keep their
hands on the steering wheel at all times. Dkt. 577 (Tr. Day 4), at 40:5–22. The term “Autopilot”
misleads a driver to believe the car is actually driving for them. Id. Next, Dr. Cummings pointed
to the lack of any formalized training given to drivers on Autopilot usage, as testified to by Mr.
McGee. Dkt. 576 (Tr. Day 3), at 42:24–43:3. Dr. Cummings explained the difficulty in accessing
the owner’s manual, and pointed to the fact that Mr. McGee did not review it. Id. at 38:23–42:20.
Dr. Cummings testified that NHTSA recognized that the autopilot warnings in the owner’s manual
were insufficient to ensure that drivers remained safely engaged. Dkt. 577 (Tr. Day 4), at 20:24–
21:21. The owner’s manual did not inform drivers that drivable space backup braking would not
function if the accelerator was depressed. Dkt. 582 at 238:12-17
While acknowledging that AEB has limitations, especially at night, Dr. Cummings noted
that none of this information was conveyed to consumers in the owner’s manual. Dkt. 576 (Tr.
Day 3), at 105:2–6, 107:23–08:1; Dkt. 583 at 37:1-4 Mr. McGee believed that the Autopilot would
detect and avoid any obstacles in his path. Id. at 108:2–5. It was clear to Dr. Cummings that Mr.
McGee did not understand how the system worked. See id.
Dr. Cummings also offered opinions on the inadequacy of the in-car warnings. First, with
respect to the hands on warning, Dr. Cummings noted that there was no audio alert accompanying
it, which is “a big no-no” in the world of user design. Id. at 92:22–25. The cruise control is
disabled warning was similarly unaccompanied by an audio alert. Id. at 94:3–6, Dkt. 578 (Tr. Day
5), at 15:2-11. Dr. Cummings pointed to NHTSA’s conclusion that Tesla’s driver monitoring
system was not able to alert the driver in an appropriate way, fast enough and with enough

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frequency to be able to guard against consequences from misuse. Dkt. 577 (Tr. Day 4), at 18:1–
14.
Mr. Moore opined on the inadequacy of the notification that TACC would be disabled
when Mr. McGee was pressing the accelerator. Mr. Moore first noted that the notice was only
visual and was not accompanied by an audio signal. Dkt. 578 (Tr. Day 5), at 15:2–11. Second,
the message was frequently obscured by the “hands on” message. Id. at 11:1–23. One minute
before impact, the “cruise control will not brake” message was presented, but was obscured for the
first 15 seconds by the “hands on” warning. Id. at 15:2–5. Neither were accompanied by an audio
alert. Id. at 15:9–11.
For his part, Mr. McGee does not recall receiving any warnings prior to the collision. Dkt.
579 (Tr. Day 6), at 58:7–17. He was not given any training or tutorial when he picked up his car
from Tesla. Id. at 89:14–25. And he did not know how to access the owner’s manual on the touch
screen. Id. at 52:11–13.
iii. Tesla’s inadequate warnings were a legal cause of the crash.
Tesla fares no better in arguing that Mr. McGee’s failure to read the owner’s manual
absolves it from liability for failure to warn. First, this defense would only apply to the adequacy
of the warnings in the owner’s manual, not to the on screen warnings in the car, which the Court
ruled could not be found adequate as a matter of law, because they did not “contain some wording
directed to the significant dangers arising from failure to use the product in the prescribed manner,
such as the risk of serious injury or death.” Dkt. 428 at 84.
Second, as this Court held in denying summary judgment, “the mere existence of warnings
in an instruction manual is not dispositive of the adequacy of the warnings . . . [given that a]
warning may be defective not only by virtue of inadequate wording, but as a result of its location
and the manner in which the warning was conveyed.” Dkt. 428 at 84 (citing Brown v. Glade &
Grove Supply, Inc., 647 So. 2d 1033, 1035 (Fla. 4th DCA 1994). 8 See also Ferebee v. Chevron

8

This Court noted that Stanley Indus., Inc. v. W.M. Barr & Co., 784 F. Supp. 1570, 1574 (S.D.
Fla. 1992) criticized the holding in Lopez v. S. Coatings, Inc., 580 So. 2d 864, 865 (Fla. Dist. Ct.
App. 1991, on which Tesla relies, as follows: “concluding that ‘[t]he Lopez court swe[pt] too
broadly in its holding that failure to read the warning label extinguishes proximate cause. A court
must delve into the reasons for the failure to see if they coincide with the alleged inadequacies in
the warning.’” Dkt. 428 at 87.
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Chem. Co., 552 F. Supp. 1293, 1302–03 (D.D.C. 1982), aff'd, 736 F.2d 1529 (D.C. Cir. 1984)
(“the adequacy of a warning depends, not only on its content, but also on its ability to catch the
eye, inducing the user to read it.”) Tesla has provided no basis for this Court to change its prior
ruling.
B. THIS COURT DID NOT ERR IN ADMITTING THE COMPLAINED-OF EVIDENCE.
1. Tesla’s efforts to destroy the autopilot data were properly admitted.
Tesla takes great offense that its efforts to prevent FHP and the Plaintiffs from obtaining
the autopilot data in this case were presented to the jury. But the law is clear that evidence about
efforts to destroy evidence are admissible to show consciousness of guilt in proving liability, and
(although we acknowledge the Court’s disagreement) to prove entitlement to punitive damages. 9
And Tesla has no one to blame for this evidence but itself. As Plaintiffs proved at trial, Tesla
admitted to taking an “an affirmative action” that deleted the snapshot and index from its internal
files. Tesla sent a tech to the FHP data download meeting who had no experience downloading
autopilot data, and who subsequently lied under oath on his declaration and in his deposition. And
Tesla twice opened to the door during trial to allowing the jury to hear about Tesla’s efforts to
prevent the Plaintiffs from obtaining the data. The The Court did not err in admitting this evidence.
As we previously noted, even in cases without a claim for punitive damages, evidence of
an attempted cover-up is admissible in order to demonstrate consciousness of guilt. In S. Union
Co. v. Sw. Gas Corp., 281 F. Supp. 2d 1117, 1123 (D. Ariz. 2003), for example, the district court
allowed the jury to consider evidence demonstrating that the defendant had “engaged in fabricating
evidence favorable to his defense and then offering it as evidence in the trial.”
The court explained the relevance of this evidence as follows:
Fabrication of evidence followed by offering it at trial because it was material to
his defense is specifically relevant to whether he intentionally engaged in improper
conduct, and whether he testified truthfully. See United States v. Perkins, 937 F.2d
1397, 1401–2 (9th Cir.1991) (false exculpatory statements may be considered by
jury as evidence of consciousness of guilt); United States v. Collins, 90 F.3d 1420,
1428 (9th Cir.1996) (inducing witness to testify untruthfully or participating in the
proffer of untruthful evidence shows consciousness of guilt) (citing United States
9

It is true that during the charge conference, undersigned counsel stated that the data was not
relevant to the liability claims. I misspoke. Plaintiffs have maintained, both before and after the
charge conference, that the evidence was also relevant to prove consciousness of guilt in proving
liability. See Dkt. 469 at 4, Dkt 587 at 13. This Court agreed. Dkt. 587 at 14.
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v. Brashier, 548 F.2d 1315, 1325 (9th Cir.1976) (holding same)); Glover v. BIC
Corp., 6 F.3d 1318, 1329 (9th Cir.1993) (court has “broad discretionary power” to
allow jury to draw adverse inference from destroyed or spoliated evidence); United
States v. Scheibel, 870 F.2d 818, 822 (2nd Cir.1989) (jury may consider fabrication
of exculpatory evidence as proof of consciousness of guilt); Great Coastal Express,
Inc. v. International Brotherhood of Teamsters, 675 F.2d 1349, 1357 (4th Cir.1982)
(noting that “[p]erjury and fabricated evidence are evils that can and should be
exposed at trial....”).
S. Union. Co. at 1124.
In Matter of Energetic Tank, Inc., 607 F. Supp. 3d 328 369 (S.D.N.Y. 2022), aff'd, 110
F.4th 131 (2d Cir. 2024), the Defendant argued, as Tesla does here, that evidence of a cover-up
should be excluded because it wasn’t an actual cause of the accident. The Court rejected the
argument as follows:
To be sure, the creation of false logs had no causative effect on a collision that had
already taken place. And the Petitioner has long since admitted the falsities,
lessening their poisonous effect on the evidence presented at trial (much of which
was undisputed).24 See ECF No. 221 at n.4. But “although the alterations of the
logbooks obviously did not ‘cause’ the collision, the fact of the alterations has
relevance to the ultimate allocation of liability for damages.” Otal II, 494 F.3d at
58 (cleaned up). The Second Circuit has been forceful in sanctioning this type of
bad faith:
Our admiralty jurisprudence is especially sensitive to the unexplained
alteration of logbooks. Where a logbook is altered, we “cannot avoid the
conclusion that it had been dressed up to excuse the ship's faults.” Such
alterations should give rise to a presumption the logbook contained entries
adverse to the vessel's contentions at trial. The inference “goes much further
than merely to discredit the document itself; it is positive evidence upon the
very issue” of liability.
Id. (quoting The Glasgow Maru, 102 F.2d 450, 453 (2d Cir. 1939) (Learned Hand,
J.)). Thus, the false statements are positive evidence of the ALNIC crew's
consciousness of guilt.
Matter of Energetic Tank, Inc., at 369. Similar cases affirming the relevance of conscious of guilt
evidence to proving liability are legion. 10
10 While we are not typically in favor of string cites, we do think one is appropriate here to show
the universal acceptance of this proposition. See Joler v. Scott Paper Co., 65 F.3d 160 (1st Cir.
1995) (“Of course, a party's efforts to destroy or conceal evidence may give rise to an inference of
consciousness of guilt, and this self-appraisal can be weighed with other evidence in the case”);
McKenzie v. United States Tennis Ass'n Inc., No. 6:22-CV-615-PGB-LHP, 2024 WL 3849884, at
*12 (M.D. Fla. Aug. 16, 2024) (“Similarly, the evidence concerning the USTA's attempt to cover
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Even if evidence of Tesla’s cover up was inadmissible to demonstrate consciousness of
guilt, its admission was harmless error because it was relevant to Plaintiffs’ claim for punitive
damages. We acknowledge the Court previously disagreed on this point, but we write here to
expand on our previous argument.
Tesla’s primary argument, which the Court accepted, was based on the language of the
punitive damage jury instruction, which reads: “Punitive damages are warranted against Tesla if
you find by clear and convincing evidence that Tesla was guilty of intentional misconduct or gross
negligence, which was a substantial cause of damage to Plaintiffs.” Dkt. 536 at 12. Tesla argued

up Ms. McKenzie's assault was relevant to the USTA's culture of silence and was not offered as a
basis for punitive damages.”); Medina as next friend for N.M. v. Izquierdo, 594 F. Supp. 3d 1045,
1060 (N.D. Ill. 2022) (“Defendants’ alleged decision to not review the video footage after Plaintiff
complained to them, combined with their refusal to allow Plaintiff to see the footage (ostensibly a
cover-up showing consciousness of guilt) further supports an inference of deliberate
indifference.”); Bahena v. Kennedy, 2021 WL 8153974, at *7 (N.D. Ill. Oct. 25, 2021) (“Bahena
contends that the fact that these notes were not produced is relevant to show consciousness of guilt
on the part of Hillman as an attempt to cover up his own misconduct.”); Linkepic Inc. v. Vyasil,
LLC, 2019 WL 11717093, at *12 (N.D. Ill. Oct. 15, 2019) (“If the operating agreement was in fact
altered, then that could suggest that Defendants tried to cover up Wittstrom's membership in
Vyasil, which would be relevant to the Defendants’ consciousness of guilt.”); Am. Nat'l Prop. &
Cas. Co. v. Felix, 2018 WL 10247022, at *2 (W.D. Pa. Nov. 21, 2018) (text messages showing
“‘consciousness of guilt,” his knowledge of the alleged fraud he perpetrated, and his plan to
conceal his alleged fraud” were introduced for “a proper evidentiary purpose.”); Federated Univ.
Police Officers' Ass'n v. Regents of Univ. of California, 2015 WL 13273308, at *10 (C.D. Cal.
July 29, 2015) (evidence of defendant’s efforts to conceal their wrongful conduct can demonstrate
consciousness of wrongdoing, which is relevant to prove the defendants acted intentionally.);
Clear-View Techs., Inc. v. Rasnick, 2015 WL 3453529, at *2 (N.D. Cal. May 29, 2015) (“Evidence
that Mr. Berg destroyed evidence regarding his conduct is undoubtedly probative of Mr. Berg's
consciousness of guilt regarding the alleged conspiracy.”); DiTeresi v. Stamford Health Sys., Inc.,
2010 WL 5493514, at *26 (Conn. Super. Ct. Dec. 14, 2010) (“The claims of delays and cover up
may be admissible to demonstrate consciousness of guilt by the hospital in the plaintiff's proof of
Santina Di Teresi's claims at trial for Count Three Negligent Supervision against the hospital and
Count Fourteen Medical Malpractice against the hospital.”); In re Parmalat Sec. Litig., 472 F.
Supp. 2d 582, 584–85 (S.D.N.Y. 2007), aff'd, 240 Fed. Appx. 916 (2d Cir. 2007); (“The
destruction of evidence by the Parmalat insiders is evidence of consciousness of guilt, which is
relevant to GT's liability.”); Haemonetics Corp. v. Dupre, 238 B.R. 224, 228 (D. Mass. 1999)
(“That an inference of consciousness of guilt can be drawn from the destruction of evidence is
well-recognized in the law. See Koonce v. Commonwealth, 412 Mass. 71, 74 n. 4, 587 N.E.2d 220
(1992)”); and Johnston v. Love, 940 F. Supp. 738, 751 (E.D. Pa. 1996) (holding that evidence
indicating a “consciousness of guilt” was offered for a proper evidentiary purpose);
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that this means that only evidence of actions that caused the Plaintiffs’ harm could be considered,
and because the cover-up came after the accident, it could not have caused harm.
While this jury instruction can be read in this fashion, a subsequent jury instruction and the
caselaw tell us otherwise. The jury was also instructed “You may consider harms that Tesla’s
conduct caused to persons other than Plaintiffs.” Dkt. 536 at 12. That instruction contains no time
frame limitation, so it necessarily allows the jury to consider post accident conduct..
There are numerous cases in Florida and other jurisdictions holding that a jury may
consider efforts to cover up responsibility for the harm caused when considering entitlement to
punitive damages. We have previously cited to Gen. Motors Corp. v. McGee, 837 So. 2d 1010,
1035 (Fla. 4th DCA 2002), as modified on clarification (Mar. 5, 2003), which we contend is
directly on point. In McGee, the Fourth District recognized that, in a case involving punitive
damages, evidence of discovery misconduct could be admissible as “concealment of offensive
conduct after it initially occurred.”
In McGee, the counsel for GM was placed on the stand for over three days, and testified
about documents that had been withheld and about conflicting interrogatory answers he had
provided on behalf of GM. The Fourth District held that “the vast majority of questions asked of
[GM’s counsel] were relevant to the issue of punitive damages.” McGee at 1035. In explaining
why this evidence was relevant to the jury’s determination of punitive damages, the court wrote:
In the related context of Title VII litigation, a plaintiff may “establish that the
defendant acted with reckless disregard for his federally protected rights by
showing that the defendant's employees lied, either to the plaintiff or to the jury, in
order to cover up their discriminatory actions.” Bruso v. United Airlines, Inc., 239
F.3d 848, 858 (7th Cir.2001); see also Davis v. Rennie, 264 F.3d 86, 115 (1st
Cir.2001) (where court observed that “a punitive damages award may be ‘justified
not only by defendants' actions on [the date in question] but also by their subsequent
behavior’ ”) (quoting Hall v. Ochs, 817 F.2d 920, 927 (1st Cir.1987)); Passantino
v. Johnson & Johnson Consumer Prods., Inc., 212 F.3d 493, 516 (9th Cir.2000);
E.E.O.C. v. Wal–Mart Stores, Inc., 35 Fed. Appx. 543, 545–46, 2002 WL 1003133
(9th Cir.2002); Vasquez v. Atrium, Inc., 2002 WL 818066, at *8 (D.Ct.Ariz.2002).

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McGee at 1035-1036. Just as there were numerous cases holding that evidence of a cover-up is
relevant to prove consciousness of guilt, there are numerous cases holding the same evidence
relevant to entitlement to punitive damages. 11
11

See First Healthcare Corp. v. Hamilton, 740 So. 2d 1189, 1200 (Fla. 4th DCA 1999) (“the
corporate Defendant's awareness of the egregiousness of its misconduct is demonstrated by the
fact that its administrator manufactured a fraudulent document, that attempted to cover up its total
lack of care by placing blame on the decedent's widow”); SE Prop. Holdings, LLC v. Judkins, 822
Fed. Appx. 929, 934 (11th Cir. 2020) (Alabama Supreme Court has set forth several factors a jury
may consider in awarding punitive damages, “including whether the defendant engaged in ‘any
concealment, or ‘cover-up.’”); Bogle v. McClure, 332 F.3d 1347, 1361 (11th Cir. 2003) (evidence
that defendant “used trickery and deceit to cover [] up [racial discrimination] under the guise of a
‘reorganization’” relevant to punitive damages.); Hallmark Cards, Inc. v. Monitor Clipper
Partners, LLC, 758 F.3d 1051, 1060 (8th Cir. 2014) (“Massive cover up” involving “destroyed
records, [and] erased computers” “demonstrates…that Clipper acted in reckless disregard of the
rights of Hallmark, which suffices under Missouri law to support an award of punitive damages.”);
Santillan v. Sharmouj, 289 Fed. Appx. 491, 495 (3d Cir. 2008) (“[Defendant’s] attempts to coverup the circumstances of the accident could reasonably be considered outrageous enough to support
a punitive damages award against him.”); E.E.O.C. v. Wal-Mart Stores, Inc., 35 Fed. Appx. 543,
545 (9th Cir. 2002) (“There is no question that the evidence of Wal–Mart's attempts to cover-up
its discriminatory conduct after 1991 is relevant to a determination of punitive damages.”);
Passantino v. Johnson & Johnson Consumer Products, Inc., 212 F.3d 493, 516 (9th Cir. 2000)
(Defendant’s “continuing effort to cover up their campaign against [plaintiff]” provided “sufficient
evidence to submit the claim for punitive damages to the jury.”); Hall v. Ochs, 817 F.2d 920, 927
(1st Cir.1987) (a punitive damages award may be “justified not only by defendants' actions on [the
date in question] but also by their subsequent behavior.”); Guarantee Ins. Co. v. Heffernan Ins.
Brokers, Inc., No. 13-23881-CIV, 2015 WL 11216329, at *5 (S.D. Fla. Aug. 28, 2015) (rejecting
defendant’s argument that punitive damages were unavailable because no harm was caused “by
Defendants' alleged covering up an error and lying to Guarantee about the error for two years.”);
Martinez v. City of New York, 2023 WL 4627739, at *16 (E.D.N.Y. July 19, 2023) (“‘[t]he
reprehensible nature of the officers’ conduct’ in this action included evidence of ‘steps they took
to cover up their misconduct,’ and the jury was entitled to consider ‘a record that included ...
falsified accounts ... and perjured trial testimony.’”); Lomangino v. Polaris Indus. Inc., 2023 WL
3397411, at *6 (S.D.W.Va. May 11, 2023) (“evidence that Polaris may have made an effort to
cover up or conceal evidence favorable to the Plaintiffs” held to be part of the “sufficient evidence
to permit a jury to find, by clear and convincing evidence, that punitive damages are warranted.”);
Howell v. Greyhound Lines, Inc., 2009 WL 10666051, at *11 (N.D. Ga. Apr. 3, 2009) (Plaintiff
“presents evidence from which a jury could infer that Greyhound ratified and tried to cover up
Oliver's conduct, which may provide an additional ground for punitive damages.”); Schafer v.
Wickham, 1999 WL 961273, at *3 (E.D. Pa. Oct. 15, 1999) (“On the evidence submitted, a jury
could find that Defendant Truck Tech discarded records relating to this accident, and that this
action was willful, intentional and meant to hide data relating to the dangerous condition of the
tractor trailer.”); Scribner v. Waffle House, Inc., 993 F. Supp. 976, 980 (N.D. Tex. 1998), vacated
due to settlement, 62 F. Supp. 2d 1186 (N.D. Tex. 1999) (“active attempts to cover up such
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As we have previously noted, the Florida Supreme Court has made it clear that, when
considering entitlement to punitive damages, a jury may consider Tesla’s post-accident actions
that could be viewed as an attempted cover-up:
(2) the degree of reprehensibility of Owens–Corning’s conduct, the duration of that
harmful conduct, Owens–Corning’s awareness, any concealment and the existence
and frequency of similar past conduct; … (7) the seriousness of the hazard to the
public, the attitude and conduct of Owens–Corning upon discovery of the
misconduct; (8) the degree of Owens–Corning’s awareness of the hazard and of its
excessiveness; (9) the number and level of employees involved in causing or
covering up the marketing misconduct; (10) the duration of both the improper
marketing behavior and its cover-up.
Owens-Corning Fiberglas Corp. v. Ballard, 749 So.2d 483, 484-85 (1999). Owens-Corning
remains the law of this state. See Blundell v. R. J. Reynolds Tobacco Co., 324 So. 3d 1014, 1017
(Fla. 1st DCA 2021) (citing these factors). In Blundell, the First District reversed a plaintiff’s
verdict because the trial court failed to admit post-injury mitigating evidence offered by Reynolds.
If such evidence is relevant to the question of entitlement, there is no logical basis to preclude the
consideration of post-injury aggravating evidence, such as the cover-up at issue here.
Tesla’s suggestion that Plaintiffs’ counsel raised consciousness of guilt during closing
argument to suggest the jury award punitive damages is simply false. Plaintiffs were careful to
adhere to the trial court’s ruling, discussing the cover-up evidence only in the liability section of

conduct”… “resulting in civil liability”…“by suborning perjury”…“warrants punitive damages.”);
Jordan v. Jenkins, Syl. Pt. 2, 859 S.E.2d 700, 707 (W. Va. 2021) (In considering entitlement to
punitive damages, “[t]he jury should take into account…whether [defendant] attempted to conceal
or cover up his actions or the harm caused by them.”); Hundley ex rel. Hundley v. Rite Aid of S.C.,
Inc., 529 S.E.2d 45, 62 (S.C. Ct. App. 2000) (Evidence of discovery misconduct suggesting that
“Rite Aid had engaged in a cover-up” relevant to prove punitive damages.); Cloroben Chem. Corp.
v. Comegys, 464 A.2d 887, 891–92 (Del. 1983) (Evidence supporting punitive damage award
included “Cloroben[‘s] wilfull[] fail[ure] to produce claims files regarding accidents involving
Drain Snake, despite plaintiffs continued discovery efforts.); Bowden v. Caldor, Inc., 350 Md. 4,
29, 710 A.2d 267, 279 (1998) (“repeated or frequent misconduct of the same nature, misconduct
of long duration, attempts to conceal or cover-up the misconduct, failure to take corrective action,
and similar circumstances, support the deterrence value of a significant [punitive] award.”); and
Upshaw v. Sunrise Cmty. of Tennessee, Inc., 2017 IER Cases 286375 (Tenn. Ct. App. 2017)
(“consideration of Sunrise's efforts to conceal Upshaw's internal reporting of H.G.'s overfeeding
from the DIDD investigator and during discovery in these proceedings is consistent with the
purposes of punitive damages.”).

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the argument. Dkt. 587 at 51-52. Tesla objected, but both the Court and Plaintiffs’ counsel made
it clear that evidence was to be considered “solely with regard to the design defect claim.” Dkt.
587 at 51-52, 76-77. No mention of the cover-up was made of it when discussing punitive
damages.12
Because case law holds that a jury may consider a defendant’s efforts to cover-up their
misconduct in determining consciousness of guilt to prove liability and in determining entitlement
to punitive damages, admission of this evidence was not error.
2. Elon Musk’s statements were properly admitted.
Tesla concludes its argument on this topic by once again misstating the relevant burden of
proof. Tesla suggests that in order to introduce Musk’s statements, Plaintiffs had to “offer []
evidence that ordinary consumers would have made their purchasing decisions based on Musk’s
statements, that his statements would have led them to believe that Mr. McGee’s Tesla would be
equipped with a combination of features no other vehicle in history has ever included, or that the
vehicle’s capabilities would have relieved them from their responsibilities to drive safely.” Dkt.
591 at 34. No such evidence was required.
In evaluating the expectations of an ordinary consumer, the jury considers the manner in
which a manufacturer markets its product. “[A] manufacturer plays a pivotal role in crafting the
image of a product and establishing the consumers' expectations for that product, a portrayal which
in turn motivates consumers to purchase that particular product.” Aubin v. Union Carbide Corp.,
177 So. 3d 489, 511 (Fla. 2015) “The consumer expectations test thus rightly focuses on the
expectations that a manufacturer creates.” Id. In denying Tesla’s motion for summary judgment
on the product defect claim, this Court held: “Given Tesla’s numerous representations about the
capabilities of the Autopilot system, there is at least a genuine dispute as to whether it would be
obvious to the average consumer not to trust Tesla’s Autopilot system to largely drive itself and
avoid collisions.” Dkt. 428 at 80.

12

Tesla’s reference to a news article quoting Dr. Cummings’ opinion as to the reason for the jury’s
verdict is not just irrelevant. Dkt. 591 at 31. It’s completely inappropriate. If citing to outside the
record news articles is fair game, we would point the court to this article about Elon Musk’s
demand for a one trillion dollar pay package. https://electrek.co/2025/09/19/elon-musk-trappedtesla-tsla-shareholders-give-me-1-trillion-or-i-wont-lie/ How do you deter or punish a company
that wants to pay its CEO one trillion dollars?
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This Court further rejected Tesla’s argument that Musk’s statements were all forward
looking or aspirational. They were not. This Court wrote: “Musk appears to be discussing
Autopilot generally, and, therefore, his statements are relevant, especially given that Tesla was
regularly updating the Autopilot system in real time.” Dkt. 433 at 34. Statements made in 2016
about how Teslas would perform in the immediate future were thus relevant to a car purchased in
2019.
Musk’s statements were not just admissible to establish consumer expectations. They were
also relevant to the punitive damages claim. In this Court’s order denying MSJ, this Court
referenced the following evidence in support of its denial of the punitive damages claim: “Plaintiffs
also point to numerous public statements Tesla made which arguably misrepresented the risk and
limitations of the Autopilot system and improperly suggested that issues present in the crash were
resolved.” Dkt. 428 at 96. Tesla convinced the Court that these misstatements could not be
considered by the jury because Mr. McGee did not personally hear them. But that isn’t the
standard. Tesla’s product defect was the cause of the Plaintiffs’ harm, and the product was
defective because it did not perform to the expectations set by Tesla. Ballard, supra at 484-85,
makes it clear that marketing misconduct is a factor the jury can consider in awarding punitive
damages. There is no corresponding reliance requirement on behalf of a plaintiff, or, in this case,
Mr. McGee.
The Court did not err in admitting this evidence, and Tesla has provided no basis to change
this Court’s prior rulings.
3. Evidence of similar accidents was properly admitted.
Following its established pattern, Tesla’s argument on this topic misstates the law of
substantial similarity. Once again, Tesla argues that because Mr. McGee’s accident was not
identical in all respects to the other accidents admitted at trial, such evidence was improperly
admitted. This Court previously dispensed with that argument, explaining that the material facts
of each accident were similar enough to allow their admission:
Despite the differences identified by Tesla, the Court finds that the Brown Crash,
the Kanagawa Japan Crash, and the Banner Crash are all substantially similar
enough to the subject collision to be admissible. … The Court also finds the
remaining dissimilarities between other accidents and the subject collision go to the
weight of the evidence, not the admissibility.

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Tesla points out that, unlike McGee, none of the drivers briefly looked away from
the road and reached for an object on the floorboard. However, the substantial
similarity doctrine does not require identical circumstances, but rather only
relevantly substantially similar circumstances. In all three accidents, the Tesla
drivers were distracted, notwithstanding Tesla’s driver monitoring system. … The
fact that all three drivers were distracted tends to show that Tesla was on notice
pr

[The evaluation harness truncated this reference: showing the first 120000 of 197693 characters.]
</reference>

<statements>
1. U.S. tort law permits shared fault where driver inattention coexists with design, warning, or marketing evidence.
2. The plaintiffs’ trial and post-trial brief frames the case as one in which Tesla’s design, driver-monitoring system, and marketing created an independent causal contribution.
3. The brief records the district court’s admission of NHTSA Office of Defects Investigation evidence of other Tesla frontal-plane crashes on a notice standard, reasoning that Tesla and NHTSA had identified a common defect in substantially similar accidents.
4. The brief also records Tesla’s trial admission, as characterized by the plaintiffs, that “the prominence and scope of the system’s controls maybe insufficient to prevent driver misuse,” and NHTSA’s finding that Tesla’s weak driving-engagement system was not appropriate for Autopilot’s permissive operating capabilities, creating a safety gap between driver expectations and system capabilities.
5. The plaintiffs’ brief supplies several evidence themes that matter for liability
6. The owner’s manual specified forward-collision warning detection up to 525 feet
7. the brief says an ordinary consumer would expect that performance below 90 mph
8. Tesla’s public representations included a claimed 40% collision reduction when Autopilot was used
9. expert testimony adjusted that figure to 10% after accounting for highway mileage
10. Musk’s 2016 statements said the Model S could drive autonomously with greater safety than a person
11. the “paint it black” video was accompanied by the assertion that the person in the driver’s seat was present only for legal reasons and that the car was driving itself
12. McGee expected the car to perform like his Jeep and other cars
13. McGee testified he became too comfortable and trusted the technology too much
14. NHTSA-reviewed crash videos showed the struck object in view for more than ten seconds in most studied crashes
15. experts testified drivers fail to glance up for even a half second
16. the brief says Tesla used torque-based driver monitoring despite knowing Autopilot could be misused
17. the brief says that steering-wheel torque is a poor proxy for awareness
18. the brief says that the system can produce false positives by treating an inattentive driver as attentive
19. It further says McGee had 23 strike-outs in three months, but the penalty was minor because he could pull over, park, and restart driving
20. Experts opined that geofencing Autopilot to its operational design domain would have prevented the crash because the system would not have engaged on the road
21. the brief contrasts Cadillac’s Super Cruise, which it describes as geofenced to pre-mapped approved roads
22. The brief also reports Tesla stipulated that five driver-monitoring improvements were available in 2019
23. the driver-monitoring defect was admitted to exist across all makes and model years
24. These statements are from the plaintiffs’ brief
25. The live doctrinal question is therefore not whether the driver was negligent—the jury found he was—but whether a manufacturer’s post-market conduct, marketing, driver-monitoring design, and response to known misuse can independently justify punitive exposure even when the human driver bears most crash fault
26. The Benavides verdict suggests that U.S. juries may treat Level 2 misuse as shared fault when the system’s design, warnings, and marketing make misuse foreseeable
27. The boundary between driver fault and manufacturer responsibility is drawn through naming, human-machine interface design, warning adequacy, operational-domain enforcement, and event data, each of which appears in technical standards, regulator guidance, litigation records, and statutory data rules
28. Naming is a liability-relevant representation, not merely marketing, because regulator and litigation records tie names to driver expectations
29. Yet the Benavides trial record, as described in the plaintiffs’ brief, contains statements by Tesla executives and marketing materials that the brief characterises as overstating capability, including a 40% collision-reduction claim, Musk statements that the car was driving itself, and consumer-expectation evidence about forward-collision warning range
30. The analytical point is that courts and regulators should treat level labels and brand names as evidence of foreseeable user expectations, not as dispositive legal categories
31. Event data is the evidentiary bridge between technical design and legal fault, because presumptions, recording rules, and litigation records all turn on it.
32. The JRC commentary says in-service reporting is for safety confirmation and improvement, not blame, although the same data can still be relevant to civil claims.
33. The Benavides record shows the practical importance of telemetry and post-market data: the plaintiffs’ brief describes vehicle logs, strike-out events, NHTSA crash-video analysis, Tesla’s own safety goals documents, and internal data limitations.
34. A claimant without access to such data faces a severe asymmetry.
35. Marketing, HMI, DMS design, ODD geofencing, crash data
36. The U.S. Benavides record shows a comparative-fault split in which driver inattention remains dominant, but manufacturer design and marketing can still carry substantial liability.
37. Misleading names should be treated as evidence of foreseeable misuse, not protected commercial speech, because the Benavides record shows how capability claims can shape driver expectations.
38. The Benavides plaintiffs’ brief describes torque-based monitoring as a weak proxy for attention and points to geofencing and stronger monitoring as feasible alternatives.
39. In Level 2 accidents, the driver remains the primary responsible actor, but the manufacturer can still share liability where the system permits misuse, relies on weak monitoring, fails to geofence its domain, or creates unrealistic expectations
</statements>

Begin the assessment now. Output only the JSON list, without any conversational text or explanations.