Reaffirming Trial Court Discretion in Juror Nondisclosure and Clarifying Rule 59.1 Extensions: Commentary on Nissan North America, Inc. & Nissan Motor Co., Ltd. v. Henderson‑Brundidge

Reaffirming Trial Court Discretion in Juror Nondisclosure and Clarifying Rule 59.1 Extensions: Commentary on Nissan North America, Inc., and Nissan Motor Co., Ltd. v. Alise Henderson‑Brundidge

I. Introduction

This decision of the Supreme Court of Alabama addresses three distinct but important areas of Alabama civil procedure and substantive law:

  • the standard and scope of a trial court’s discretion when a party seeks a new trial based on a juror’s failure to answer voir dire questions truthfully;
  • the operation of Rule 59.1, Ala. R. Civ. P., governing the 90‑day deadline for ruling on postjudgment motions and how “express consent” to extend that period may be validly given;
  • the evidentiary sufficiency required to get an Alabama Extended Manufacturer’s Liability Doctrine (“AEMLD”) design‑defect claim to a jury, particularly the “safer, practical, alternative design” requirement.

The case arose from severe, permanent eye injuries suffered by a belted front‑seat passenger, Alise Henderson‑Brundidge (“Alise”), when the passenger airbag of a 1998 Infiniti QX4 deployed in what the Court repeatedly characterizes as a relatively low‑speed collision. At trial, the jury rejected Alise’s negligent‑design claim but found for her under the AEMLD, awarding $8.5 million in compensatory damages.

Post‑verdict, Nissan discovered that two seated jurors, J.B. and F.W., had failed to disclose prior lawsuits filed against them, despite a clear voir dire question asking who had “ever been sued.” Nissan moved for judgment as a matter of law (“JML”), alternatively for a new trial or remittitur. The Mobile Circuit Court denied all relief, but did so on the explicit premise that Alabama Supreme Court precedents—especially Jimmy Day Plumbing & Heating, Inc. v. Smith, 964 So. 2d 1 (Ala. 2007), and the plurality opinion in Hood v. McElroy, 127 So. 3d 325 (Ala. 2011)—left it “bound” to deny a new trial even though, “if given a free hand,” it would have granted one.

The Supreme Court:

  • held it had appellate jurisdiction under Rule 59.1 because the parties’ third “joint motion” for extension was valid “express consent” and could extend the ruling deadline beyond the original 90 days;
  • held the trial court misunderstood Jimmy Day and Hood, improperly treated them as creating a hard‑and‑fast rule about “materiality” of undisclosed lawsuits, and thereby failed to exercise the discretion Alabama law requires in ruling on juror‑nondisclosure new‑trial motions;
  • affirmed the denial of JML, holding that the plaintiff’s airbag expert presented substantial evidence of at least one safer, practical, alternative design under the AEMLD.

The Court therefore affirmed in part, reversed in part, and remanded: the AEMLD verdict and denial of JML stand, but the denial of a new‑trial motion is vacated and the trial court must reconsider that motion, this time exercising its own judgment under the established Freeman v. Hall framework.

II. Factual and Procedural Background

A. The Accident and Injuries

  • Date: October 5, 2018, in Mobile, Alabama.
  • Vehicle: 1998 Infiniti QX4 (manufactured by Nissan).
  • Occupants:
    • Lola Rodriques (driver, school friend);
    • Alise (15‑year‑old front passenger, belted);
    • Nyla (rear seat).
  • Collision: A 2015 Ford Fusion exited a gas station lot and crossed traffic to proceed north on McVay Drive, colliding with the Infiniti, which was in a left‑turn lane.
  • Speeds: Fusion ≈ 7 mph; Infiniti ≈ 14 mph.
  • Injury mechanism: passenger airbag deployed; Alise’s face and eyes were struck by the airbag. She suffered serious bilateral eye injuries, eventually regaining some vision in the right eye but remaining permanently blind in the left.

B. Claims Filed

In October 2020, while Alise was still a minor, her mother (as next friend) sued in Mobile Circuit Court. After Alise reached majority, she was substituted as plaintiff. The complaint asserted:

  • AEMLD claim (defective product: airbag system);
  • negligent and wanton design;
  • negligent and wanton failure to warn;
  • claims against the other driver (Sowa) and uninsured/underinsured motorist claims (later dismissed/settled).

By the time of trial (June 2023), the trial court had entered summary judgment for Nissan on the wanton and failure‑to‑warn theories, leaving:

  • AEMLD (strict products liability under Alabama doctrine);
  • negligent design.

C. Voir Dire and Juror Non‑Disclosure

A venire of 36 was sworn. The trial judge questioned the panel, then plaintiff’s counsel began substantive voir dire. Relevant exchanges:

  1. Plaintiff’s counsel asked who had ever been a plaintiff in a lawsuit. Several responded, including J.B., who disclosed:
    • her own participation in a class action against a finance company; and
    • her son’s suit against the Boy Scouts.
  2. Counsel then reversed the question: “Has anyone ever been sued before? Anyone ever been sued before?” Only prospective juror C.J. responded (sued after an accident). Counsel repeated: “Anybody else been sued?” No one answered.
  3. Later, C.J. disclosed having had her own eyes injured in an airbag deployment, and J.B. disclosed that her sister had lost vision in one eye from a bottle‑rocket incident.
  4. Nissan’s counsel did not ask about litigation history; he indicated plaintiff’s counsel had already covered that. He did, however, confirm with J.B. that she had been a “former legal secretary.”
  5. In jury selection, Nissan struck C.J., the only veniremember who had said she had been sued and who had personal airbag‑eye‑injury experience. J.B. and F.W. were seated as jurors.

After the verdict, Nissan discovered in the public records that:

  • J.B. had been sued three times in small‑claims court (2017, 2019, 2020) on debt claims of $1,584, $2,853, and $2,338. Two resulted in consent judgments; one was dismissed.
  • F.W. had been sued in small‑claims court for debts in 2000 and 2021 ($1,383 and $1,565, both default judgments), and in two unlawful‑detainer actions (2005 and 2008; one default judgment, one dismissed).

None of these jurors disclosed any of this litigation history when directly asked whether they had “ever been sued.”

D. Expert Evidence on the AEMLD Claim

Alise’s core theory under the AEMLD was design defect: the airbag system was unreasonably dangerous because it:

  • deployed unnecessarily (in too low a severity impact);
  • deployed too late;
  • deployed too forcefully and with too great a reach.

Her airbag expert, William Broadhead (whose qualifications and admissibility under Daubert/Rule 702(b) were not pursued on appeal), gave extensive testimony, including (in summary form):

  1. Threshold too low:
    • The crash was equivalent to a 9.1 mph barrier impact.
    • Such a low‑severity event, especially for a belted occupant, does not justify airbag deployment.
    • A safer design: a dual‑threshold system using seatbelt‑use information to raise the deployment threshold when the occupant is belted.
  2. Deployment too late:
    • He testified that to be safe, an airbag should fully inflate “at least 30 milliseconds” before the occupant’s head moves about 5 inches forward.
    • Occupant head movement to 5 inches occurs at ≈49 ms; thus, deployment should begin by ≈19 ms at the latest.
    • Nissan’s own data showed firing between 63–101 ms after impact—far too late—so Alise’s face would be in the deployment zone as the bag was still inflating.
    • Makeup patterns on the bag and facial injuries corroborated that the bag struck her while still unfolding.
    • He attributed this delay to having only a single sensor in the passenger compartment rather than faster‑responding crush‑zone sensors at the front of the vehicle.
  3. Excessive force / “too powerful” bag:
    • NHTSA had already amended FMVSS 208 in March 1997 (before this vehicle was built) to require “depowered” airbags because full‑power bags were causing injuries.
    • Nissan could have implemented a depowered bag, but did not.
    • Using tethers to control the shape and reach would further mitigate facial impact.

Broadhead thus articulated four specific “safer, practical, alternative designs”:

  • dual‑threshold deployment strategy keyed to seatbelt use;
  • additional front‑end crash sensors to quicken firing;
  • a depowered inflator;
  • tethers to limit airbag reach and force.

E. Verdict and Postjudgment Motions

  • The jury found for Nissan on negligent design, but for Alise on the AEMLD claim, awarding $8.5 million in compensatory damages.
  • Judgment was entered June 19, 2023.
  • On July 19, 2023, Nissan filed:
    • renewed motion for JML (Rule 50(b));
    • motion for a new trial (Rule 59);
    • motion for remittitur (excessiveness of damages).

On the juror‑nondisclosure issue, Nissan supported the motion with counsel’s affidavit stating he would have used peremptory strikes on J.B. and F.W. had he known of their litigation histories.

F. Rule 59.1 Extensions and the Trial Court’s “Unconventional” Order

Rule 59.1 gives the trial court 90 days to rule on postjudgment motions unless that period is extended by:

  • “express consent of all the parties,” appearing of record; or
  • an order of the appellate court.

Timeline:

  • June 19, 2023 – Judgment entered.
  • July 19, 2023 – Postjudgment motions filed. The 90‑day Rule 59.1 period would ordinarily end October 17, 2023.
  • Aug. 3, 2023 – Joint stipulation extends deadline to Nov. 16, 2023.
  • Oct. 11, 2023 – Amended joint stipulation extends to Dec. 16, 2023.
  • Dec. 15, 2023 – Plaintiff files a “Joint Motion” for a further extension to Jan. 17, 2024.
  • Jan. 16, 2024 – Trial court enters lengthy order denying all postjudgment motions.
  • Feb. 26, 2024 – Nissan files its notice of appeal.

The order is notable because the trial judge:

  • carefully applied the Freeman v. Hall factors (temporal remoteness, ambiguity, inadvertence/willfulness, recollection, materiality) regarding the jurors’ nondisclosure;
  • made factual findings very favorable to Nissan, including an explicit statement that “if given a free hand” it would grant a new trial for “probable prejudice”;
  • nonetheless concluded that Hood and Jimmy Day made it an “abuse of discretion” to find materiality in these circumstances, so it believed it was bound to deny a new trial.

Nissan appealed. Alise challenged appellate jurisdiction, arguing that the Rule 59.1 period expired December 16, 2023, making the January 16 order void and Nissan’s February 26 notice of appeal untimely.

III. Summary of the Supreme Court’s Opinion

  1. Appellate Jurisdiction Under Rule 59.1: The Court held it had jurisdiction.
    • A “joint motion” signed by both parties and filed of record constitutes “express consent” under Rule 59.1; no special formality or use of the word “stipulation” is required.
    • Successive extensions are permissible and may be agreed to after the original 90‑day period, provided the trial court’s jurisdiction has already been extended and there is no gap.
    • Thus, the Dec. 15, 2023 joint motion effectively extended the time to Jan. 17, 2024; the trial court’s Jan. 16 ruling was timely, and the notice of appeal filed 41 days later was within the 42‑day limit.
  2. Juror Nondisclosure and the New‑Trial Motion:
    • The Court reaffirmed that motions for new trial based on juror nondisclosure are vested in the trial court’s discretion, guided by the Freeman v. Hall “probable prejudice” test and factors.
    • It held that the trial court erred in believing that Jimmy Day and the plurality in Hood removed its discretion by imposing a narrow, categorical “materiality” rule.
    • Because the trial court effectively refused to exercise its discretion—insisting its “hands were tied”—its ruling was an abuse of discretion and had to be reversed.
    • The case is remanded so the trial court can, free of that misapprehension, decide in its own judgment whether probable prejudice exists and whether a new trial should be granted.
  3. Denial of JML on the AEMLD Claim:
    • The Court reaffirmed that under the AEMLD a plaintiff must show a “defective condition” making the product “unreasonably dangerous” and prove a “safer, practical, alternative design” available when the product was manufactured.
    • Viewing the evidence in the light most favorable to Alise, the Court held that Broadhead’s testimony about dual‑threshold systems and additional front‑end sensors (at minimum) was substantial evidence of at least one safer, feasible alternative that would have prevented or mitigated her injuries.
    • Therefore, the trial court correctly denied Nissan’s renewed motion for JML.
  4. Remittitur:
    • Because the Court remanded for reconsideration of the new‑trial motion, it expressly pretermitted any discussion of remittitur. The excessiveness question may become moot if a new trial is granted.
  5. Separate Opinions:
    • Justice Cook (concurring specially) fully agreed with the main opinion but urged the Court, in a future case, to reconsider Alabama’s relatively plaintiff/defendant‑friendly “probable prejudice” standard for juror nondisclosure and to consider moving closer to the more stringent federal McDonough standard.
    • Justice McCool (concurring specially) emphasized the centrality of truth in voir dire, the unique role of juries, and the importance of protecting the integrity of peremptory strikes and jury selection.
    • Justice Shaw (concurring in the result) agreed that reversal was warranted but characterized the error as a misuse of discretion grounded in a legal error, rather than a literal failure to exercise discretion.

IV. Analysis

A. Appellate Jurisdiction and Rule 59.1: What Counts as “Express Consent” and Can Time Be Extended Beyond 90 Days?

1. The Text of Rule 59.1 and the Court’s Reading

Rule 59.1 provides that postjudgment motions under Rules 50, 52, 55, or 59 “shall remain pending … no more than ninety (90) days, unless with the express consent of all the parties, which consent shall appear of record, or unless extended by the appellate court…. A failure … within the time permitted hereunder, or any extension thereof, shall constitute a denial … as of the date of the expiration of the period.”

The Court stressed two points:

  • The Rule does not prescribe a particular form—“stipulation” is not magic language. Any clear, written, filed document showing all parties’ agreement is sufficient “express consent.”
  • Once jurisdiction is preserved by at least one timely extension within the original 90 days, further extensions can be agreed to later; the Rule is “without limitation” in that sense, so long as no jurisdictional gap arises.

The joint motion filed on December 15—although a “motion” rather than a “stipulation” and filed after the original 90 days had run—was effective because:

  • By then, the original 90‑day period had already been extended to December 16 by prior, timely stipulations; the trial court still had jurisdiction;
  • The December 15 joint motion clearly expressed both parties’ consent to extend further to January 17; and
  • Under Personnel Bd. for Mobile Cnty. v. Bronstein, 354 So. 2d 8 (Ala. Civ. App. 1977), “positive steps” in the record that directly and unequivocally reflect consent satisfy Rule 59.1.

The Court analogized and cited its own recent opinion in Williams v. Dodd (2025), which had held that a joint motion likewise satisfied the “express consent” requirement.

2. Distinguishing Scheilz and Clarifying the “Trap”

Alise relied on Scheilz v. Scheilz, 579 So. 2d 674 (Ala. Civ. App. 1991), to argue that all extension agreements must be filed within the original 90‑day period. The Court explained:

  • Scheilz simply held that if no extension is secured within the initial 90 days, the court loses jurisdiction, and the parties cannot resurrect it by a later extension.
  • That scenario was not present here; the first extension was timely, and the subsequent ones occurred while jurisdiction was still intact.

Thus, this opinion gives practitioners a more flexible, text‑driven reading of Rule 59.1 and reduces an often‑feared procedural “trap.” As long as:

  • there is at least one extension agreed to before the original 90 days expire, and
  • every subsequent extension is agreed to while prior extensions are still running,

the parties can keep postjudgment motions pending beyond 90 days by written, filed consent.

3. Practical Impact

  • Drafting: Counsel may use joint motions, joint stipulations, or similar documents; what matters is clear written agreement on the record.
  • Timing: The critical “drop‑dead” date is whatever date is currently in force under the latest extension, not the original judgment‑plus‑90‑days. Extensions need only be made before the then‑current deadline lapses.
  • Appeals: Because a late ruling is void if Rule 59.1 time has truly lapsed, this opinion provides a roadmap to avoid jurisdictional disputes like the one Alise raised.

B. Juror Nondisclosure and the New‑Trial Motion: Reasserting the Freeman Framework and Trial Court Discretion

1. The Governing Standard: Probable Prejudice and the Freeman Factors

Alabama law has long required a showing of “probable prejudice” when a party moves for a new trial based on a juror’s failure to answer voir dire questions:

  • Freeman v. Hall, 286 Ala. 161, 238 So. 2d 330 (1970), established that standard and identified five non‑exclusive factors:
    1. temporal remoteness;
    2. ambiguity of the question;
    3. inadvertence or willfulness of non‑response;
    4. failure of recollection;
    5. materiality of the matter inquired about.
  • Ex parte Dobyne, 805 So. 2d 763 (Ala. 2001), clarified the meaning of “prejudice”: whether the nondisclosure affected the movant’s ability to:
    • challenge the juror for cause; or
    • exercise a peremptory strike.

“Materiality” is defined functionally as whether “a reasonably competent attorney” would consider the undisclosed fact important in deciding whether to excuse the juror. See Jimmy Day Plumbing, 964 So. 2d at 5.

Crucially, the application of these factors is vested in the trial court’s discretion. The Supreme Court reviews the resulting rulings only for “abuse of discretion,” i.e., decisions that:

  • are arbitrary;
  • ignore guiding legal principles; or
  • are based on an erroneous view of the law.

The Court quotes Steele v. Gill, 283 Ala. 364, 217 So. 2d 75 (1968), and Ex parte Dolgencorp, 13 So. 3d 888 (Ala. 2008), to reaffirm that a trial court must exercise “conscientious judgment” guided by law, not appraise itself as having no choice at all.

2. The Trial Court’s Application of Freeman

The trial judge explicitly walked through each factor and essentially found:

  • Temporal remoteness:
    • J.B.’s three lawsuits (2017, 2019, 2020) were recent and “not remote.”
    • Of F.W.’s cases, the 2021 small‑claims debt suit was not remote; the 2000, 2005, 2008 matters were more remote, but still had some relevance.
  • Ambiguity:
    • The question “Has anyone ever been sued before? … Anybody else been sued?” was simple and not ambiguous.
    • The court refused to assume confusion, especially when the question was repeated three times without contradiction.
  • Inadvertence or willfulness; recollection:
    • With no juror testimony, the judge could not definitively ascribe motive, but:
      • For J.B., a former legal secretary who entered consent judgments in two cases, the court found it “hard to believe” she neither understood the question nor forgot being sued.
      • For F.W., the presence of default judgments following valid service suggested she likely knew of the earlier suits; the 2008 dismissal left the court less certain. Nonetheless, it was “much more likely” she was aware of at least some of these suits.
  • Materiality:
    • The judge candidly stated: “In and of itself, prior litigation of a juror is certainly material. The question is asked in every civil action….”
    • He recognized that both sides have a legitimate interest in knowing whether veniremembers have been sued.

On these findings, the court announced that, “if given a free hand,” it would find both subjective and objective “probable prejudice” and grant a new trial.

3. How Jimmy Day and Hood Were Misread

a. Jimmy Day Plumbing & Heating, Inc. v. Smith

In Jimmy Day, a juror failed to disclose that he had previously filed a personal‑injury lawsuit involving a bicycle/car accident. The case on trial involved a motorcyclist hit by a truck. The defendant argued the similarity of accident types made the nondisclosure clearly material and non‑remote. The trial court disagreed and denied a new trial. The Supreme Court affirmed, emphasizing:

  • “Significant factual differences” between the incidents;
  • the trial court “acting within its discretion” could reasonably dismiss the defendant’s speculation; and
  • the temporal distance (accident in 1997; trial in 2006) was another factor the trial court was “entitled” to weigh.

The key move in Jimmy Day was not to declare a rule that factually different prior accidents are always immaterial. Rather, the Court upheld the trial court’s discretionary determination in that case under the deferential abuse‑of‑discretion standard. It repeatedly framed the trial court as “entitled” to reach the conclusion it did—not compelled to.

In Nissan, the Mobile Circuit Judge incorrectly took Jimmy Day to mean that unless a prior suit is “factually similar” to the case at hand, it cannot be deemed material as a matter of law. The Supreme Court makes explicit that this is not what Jimmy Day held.

b. Hood v. McElroy

Hood is more complex because:

  • It involved a plaintiff winning a verdict but seeking a new trial due to juror nondisclosure; and
  • the main opinion was a plurality, not a majority, meaning it is not binding precedent in the usual sense.

Facts in brief:

  • Wrongful‑death claim on behalf of a 14‑month‑old child against the mother’s boyfriend and a social worker.
  • During voir dire, counsel asked: “How many of you have ever been defendants in a lawsuit? Had somebody sue you for personal injuries? And I’m not talking about a case like this. It could have been a car wreck.”
  • Juror J.S. had been sued twice in small‑claims debt‑collection actions (totaling <$2,700) resulting in uncontested judgments, but did not respond.
  • The estate nevertheless won, but only $25,000, and moved for a new trial; the trial court granted it.

The plurality reversed, finding:

  • The question was ambiguous in context: although it began generally (“ever been defendants in a lawsuit?”), it was immediately narrowed to “somebody sue you for personal injuries,” suggesting to a reasonable veniremember that the lawyer only cared about personal‑injury lawsuits.
  • The juror’s only prior suits were small‑claims debt collections, significantly different from the wrongful‑death case.
  • The plurality could not conclude there was sufficient “probable prejudice” to justify retrying the case under those facts.

However:

  • The plurality stated its disagreement was based on “the specific facts of this case.”
  • Justice Shaw concurred in the result only, and limited his reasoning to the ambiguity of the question and the fact that the plaintiff actually won at trial. He expressly declined to “address other issues,” including materiality analysis.
  • Because no majority of Justices joined the plurality’s materiality reasoning, that reasoning is not binding precedent.

In Nissan, the trial court mistakenly believed:

  • that Hood stood for a general rule that undisclosed small‑claims debt/landlord‑tenant cases are not “material” to later civil litigation; and
  • that, reading Hood and Jimmy Day together, it would be an “abuse of discretion” for it to find materiality and probable prejudice as a matter of law.

The Supreme Court rejected both premises:

  • Hood was a fact‑sensitive pluralistic decision; its materiality analysis is, at most, persuasive, not binding.
  • Even if it were binding, its holding turned heavily on the ambiguity of the question and the plaintiff’s favorable verdict—factors not present here (the question was clear; the movant lost at trial).

4. Failure to Exercise Discretion as an Abuse of Discretion

The Court then applied a key appellate principle: when an issue is entrusted to trial‑court discretion, a trial court commits reversible error not only by abusing that discretion in substance, but also by refusing to exercise it.

Citing general authorities (e.g., 5 C.J.S. Appeal and Error § 826; Johnson v. United States, 398 A.2d 354 (D.C. 1979)), the Court emphasizes:

  • Discretion exists precisely where the law does not dictate a single outcome.
  • If a trial court says its “hands are tied” when the law actually leaves room for judgment, it has failed to perform its judicial task.
  • An appellate court cannot “defer” to a discretion that was never exercised.

Here, the trial judge’s own words—stating it “would” find probable prejudice and grant a new trial but believed it “could reach no conclusion other than” that granting a new trial would itself be an abuse of discretion—made clear that it saw no legal space to exercise judgment. That is exactly the error the Supreme Court corrects.

5. Limits of the Supreme Court’s Holding: No View on Probable Prejudice Itself

Critically, the Supreme Court does not hold that Nissan is entitled to a new trial, nor that probable prejudice must be found. Instead, it holds:

  • the trial court’s reason for denying the motion was legally erroneous; and
  • the case must return to that court for it to determine, under Freeman and the full factual context, whether probable prejudice exists and whether to grant a new trial.

The opinion explicitly recognizes that “the trial court is in the best position to determine” probable prejudice from juror nondisclosure, quoting Jimmy Day.

6. Likely Considerations on Remand

On remand, the trial judge will again consider:

  • that two jurors, not just one, failed to disclose being sued;
  • that there were seven suits in total, many recent, at least some of which resulted in judgments;
  • that J.B.’s role as a former legal secretary makes inadvertent misunderstanding less likely;
  • that the defense struck the only juror (C.J.) who said she had been sued and who had relevant airbag‑eye‑injury experience—highlighting the importance of litigation history to its strategy;
  • counsel’s sworn representation that he would have struck J.B. and F.W. had he known.

Neither the main opinion nor the concurrences pre‑judge how those factors should be weighed; they simply demand that the weighing occur unencumbered by a mistaken view that precedent removes all discretion.

C. Sufficiency of Evidence Under the AEMLD: Alternative Design and Causation

1. The AEMLD Framework Applied

Under established Alabama law (e.g., Bell v. T.R. Miller Mill Co., 768 So. 2d 953 (Ala. 2000); McMahon v. Yamaha Motor Corp., 95 So. 3d 769 (Ala. 2012); Hosford v. BRK Brands, 223 So. 3d 199 (Ala. 2016)), an AEMLD plaintiff must show:

  1. the product was sold in a defective condition unreasonably dangerous to the user; and
  2. a safer, practical, alternative design was available to the manufacturer at the time of manufacture, such that:
    • injuries would have been reduced or avoided; and
    • the utility of the alternative design outweighs the utility of the actual design.

Nissan argued on appeal that Alise failed to present “substantial evidence” on the alternative‑design element because Broadhead’s testimony allegedly rested on speculation and conjecture, not concrete proof that his proposed designs would have prevented the injury.

2. The Court’s View of Broadhead’s Testimony

Applying the Rule 50 standard—viewing evidence in the light most favorable to Alise and drawing reasonable inferences in her favor—the Court found:

  • Dual‑threshold system for belted occupants:
    • Broadhead testified a belted occupant did not need an airbag at the 9.1 mph barrier‑equivalent severity; the seatbelt was sufficient.
    • He described in practical terms how a dual‑threshold system could be implemented with existing 1990s technology:
      • the vehicle already detects whether a belt is buckled (e.g., for chimes or warning lights);
      • that signal could be fed into the airbag control module;
      • a simple code branch in the module could raise the deployment threshold when the belt is buckled.
    • He testified that if the airbag had not deployed at all, Alise would not have suffered the eye injuries.
    • He indicated dual‑threshold systems were already in industry use in 1997–1998.
  • Additional front‑end crash sensors:
    • He testified that the Infiniti had only a single compartment sensor, and that this design led to delayed deployment.
    • He explained that crush‑zone sensors, mounted further forward, would detect impact sooner, enabling firing within the safe time window (before the head moves into the deployment zone).
    • He pointed to NHTSA data showing that by 1998, “the majority of vehicles” used multiple sensors, supporting technological and economic feasibility.
    • He linked the late firing (63–101 ms) to Alise’s being struck by a still‑unfolding bag.

On this record, the Court concluded that a reasonable jury could find:

  • the airbag fired at an unreasonably low threshold for belted occupants and unreasonably late in time;
  • dual‑threshold logic and additional front sensors were feasible, widely used alternatives available to Nissan at the time;
  • if deployed, those alternatives would have either:
    • prevented deployment altogether in such a low‑severity crash, or
    • caused the bag to be fully inflated before contacting Alise’s head and eyes;
  • Alise’s injuries would thereby have been avoided or greatly reduced.

The Court therefore held that this was substantial evidence of at least one safer, practical, alternative design satisfying AEMLD requirements. It did not need to resolve whether all four alternative designs (including depowering and tethers) independently met the standard; one was sufficient to survive JML.

3. Implications for Product‑Liability Practice

  • Expert testimony that ties concrete alternative designs to:
    • industry practice at the time,
    • regulatory developments (e.g., FMVSS 208 depowering), and
    • specific casualty mechanisms (timing, space, forces),
    can constitute substantial evidence even without elaborate finite‑element modeling or complete quantitative cost‑benefit analyses.
  • By affirming denial of JML, the Court signals that debates about the degree of safety improvement and the precise probabilities of injury under alternative designs ordinarily belong to the jury once a plausible, technically feasible alternative is articulated.
  • Defendants intending to challenge the methodological reliability of such testimony must preserve and pursue Daubert/Rule 702(b) issues on appeal; Nissan did not, and the Court specifically notes that any such challenge was abandoned on appeal.

D. The Separate Concurrences: Possible Future Shifts in Juror‑Nondisclosure Doctrine

1. Justice Cook: Questioning the “Probable Prejudice” Standard

Justice Cook’s concurrence, while fully endorsing the main opinion, raises an important doctrinal question: Is Alabama’s current standard for granting new trials on juror nondisclosure too lenient?

He emphasizes:

  • Under Alabama law (Dobyne and progeny), “probable prejudice” is satisfied if nondisclosure would have changed the party’s exercise of either:
    • a for‑cause challenge; or
    • a peremptory strike.
  • Thus, a party need not show that the undisclosed information would have justified removal for cause; nor that the trial outcome itself would likely have changed.
  • Given the enormous cost—financial, emotional, and institutional—of retrying cases, perhaps a higher threshold is appropriate.

He contrasts this with the federal standard in McDonough Power Equip., Inc. v. Greenwood, 464 U.S. 548 (1984), under which a party seeking a new trial must show:

  1. that a juror failed to answer honestly a material voir dire question; and
  2. that a correct answer would have provided a valid basis for a challenge for cause.

McDonough’s focus is not on peremptory strikes but on juror impartiality in a more direct sense. Justice Cook invites the bar to raise, in an appropriate future case, whether Alabama should:

  • adopt the McDonough test wholesale; or
  • develop some hybrid that better balances:
    • the need for fair, impartial juries;
    • the importance of candor in voir dire; and
    • the systemic interest in finality and the costs of new trials.

This concurrence is not controlling law, but it is a strong signal that at least one Justice would be receptive to a doctrinal shift if properly briefed and presented.

2. Justice McCool: The Centrality of Truth and Peremptory Strikes

Justice McCool’s concurrence provides a normative and functional defense of the current focus on peremptory strikes:

  • He extols the jury system as a “bulwark” of liberty—quoting Western Railway of Alabama v. Mutch, 97 Ala. 194, 11 So. 894 (1892)—and notes that many societies vest such decisions in judges, not lay jurors.
  • He stresses that an “impartial” jury is essential, and that the primary mechanism to ensure impartiality in American practice is the voir dire process.
  • He underscores that peremptory strikes, though constrained by Batson and J.E.B., are often the central tool by which counsel shape a fair jury; challenges for cause are relatively rare and more constrained.
  • He points out the practical reality: when the trial judge asks, “Is this the jury you struck?” counsel’s “Yes, Your Honor” rests heavily on the assumption that veniremembers have answered voir dire truthfully and completely.

From this perspective, even nondisclosures that would not have supported a for‑cause strike can seriously undermine the integrity of the process by depriving a party of fully informed peremptory challenges. This rationale supports retaining at least some version of the current focus on any effect on peremptory or for‑cause decisions.

3. Justice Shaw: Characterizing the Error

Justice Shaw concurs in the result but nuances the main opinion’s characterization. He suggests that:

  • the trial court did make a decision; it did not literally refuse to act;
  • its error lay in grounding its discretionary ruling on a mistaken view of what prior caselaw required;
  • thus, the problem is better described as a misuse of discretion based on a legal error (an “erroneous conclusion of law”) rather than a pure “failure to exercise” discretion.

The practical effect is identical—reversal and remand—but this clarification underscores a subtle doctrinal point: a discretionary ruling based on a legal mistake is necessarily an abuse of discretion.

V. Complex Concepts Simplified

Alabama Extended Manufacturer’s Liability Doctrine (AEMLD)
Alabama’s judicially created version of strict products liability. A manufacturer (or seller within the marketing chain) is liable if it markets a product in a defective condition unreasonably dangerous to the user, and that defect causes injury. In design‑defect cases, the plaintiff must show a safer, practical, alternative design was available at the time of manufacture.
Judgment as a Matter of Law (JML)
A procedural device (Rule 50, Ala. R. Civ. P.) allowing a court to take a case away from the jury when, even viewing all evidence in the non‑movant’s favor, no reasonable jury could legally find for that party. A renewed motion after verdict challenges whether the verdict is supported by “substantial evidence.”
Voir Dire
The process of questioning prospective jurors to uncover potential biases, prior experiences, or relationships that may affect impartiality. Attorneys use the answers to decide whom to challenge for cause or remove via peremptory strikes.
Freeman Factors
From Freeman v. Hall, criteria to assess whether a juror’s nondisclosure caused “probable prejudice”: temporal remoteness; ambiguity of the question; inadvertence or willfulness; failure of recollection; and materiality. These are guides rather than rigid rules.
“Probable Prejudice” (Alabama standard)
In this context, whether the nondisclosure probably affected the movant’s ability to make informed decisions about removing the juror—either via a for‑cause challenge or a peremptory strike. It does not require proof that the trial outcome itself would have been different.
Rule 59.1, Ala. R. Civ. P.
Provides that most postjudgment motions are deemed denied if not ruled on within 90 days, unless:
  • all parties expressly consent (on the record) to extend the period; or
  • an appellate court orders an extension.
A timely extension preserves jurisdiction; subsequent extensions may extend beyond the original 90 days as long as there is no lapse.
Plurality Opinion
An appellate opinion joined by fewer than a majority of the court’s judges. It decides the case but its reasoning is not binding precedent. Its persuasive value depends on its logic and whether later majorities adopt its reasoning.
Remittitur
A reduction of a jury’s damages award ordered by the court, either accepted by the prevailing party or accompanied by an option for a new trial. It is used to correct verdicts deemed excessive or unsupported by the evidence.
Safer, Practical, Alternative Design
In design‑defect cases, an alternative way to design the product that:
  • was technologically and economically feasible when the product was made;
  • would have reduced or eliminated the plaintiff’s injuries;
  • offers greater net utility than the design actually used.

VI. Broader Impact and Future Implications

A. Juror Nondisclosure Motions: Restored Flexibility for Trial Courts

  • Trial judges retain genuine discretion to grant or deny new‑trial motions for juror nondisclosure; they are not confined by narrow categorical rules derived from Jimmy Day or Hood.
  • Undisclosed litigation history in small‑claims or collection matters can be materially relevant depending on context. There is no automatic rule of immateriality.
  • Attorneys must build a factual record on:
    • how they would have used peremptory or for‑cause challenges had they known;
    • how recent, numerous, or similar the undisclosed matters are;
    • whether the questions were genuinely clear or ambiguous.
  • Because this opinion underscores the importance of candor and the legitimacy of using prior litigation history in jury selection, it may:
    • encourage trial judges to be more receptive to such motions where the Freeman factors favor the moving party; and
    • encourage more meticulous voir dire questioning focusing on debt suits, landlord‑tenant actions, and similar civil matters, not just personal‑injury suits.

B. Possible Future Tightening of the Standard (McDonough Influence)

Justice Cook’s concurrence invites a potential recalibration of Alabama’s standard toward McDonough, which would:

  • require an honest failure to answer a material question; and
  • require that full disclosure would have supported a valid for‑cause challenge (not merely a peremptory strike).

If Alabama moves in this direction:

  • new‑trial motions based solely on lost peremptory strikes would become harder to win;
  • parties would need to show a closer nexus to juror bias or inability to be impartial; and
  • fewer verdicts would be overturned for voir dire irregularities, increasing finality but potentially leaving some litigants dissatisfied where they believe jurors “hid the ball.”

For now, however, the existing “probable prejudice” standard (including impact on peremptory strikes) remains the law.

C. Rule 59.1 Practice: Safer Use of Extensions

  • Lawyers can use joint motions or stipulations to extend the 90‑day ruling period multiple times, even beyond the initial 90 days, so long as at least the first extension is timely and there is no gap.
  • This gives parties more control over the post‑trial schedule and reduces the risk of inadvertent denials “by operation of law” while parties are still negotiating or briefing issues.
  • Nevertheless, counsel must:
    • track all deadlines carefully;
    • ensure all extensions are documented “of record”; and
    • avoid any period where no extension is in place.

D. Product‑Liability Litigation: Threshold for Getting to the Jury

  • This opinion reinforces that a qualified expert’s testimony about design alternatives, supported by:
    • industry practice;
    • regulatory history; and
    • engineering plausibility,
    can be sufficient to reach the jury, even if the testimony is contested and not mathematically precise.
  • Manufacturers defending AEMLD claims should:
    • develop record evidence showing why alleged alternatives were not feasible (technologically or economically) at the time;
    • present counter‑experts to challenge alternative designs and timing/threshold theories; and
    • preserve all admissibility challenges for appeal.
  • Plaintiffs should ensure their experts:
    • clearly explain causation (“this design would have prevented or reduced these injuries”);
    • tie proposed designs to what the industry was actually doing at the relevant time;
    • focus on specific, concrete technologies rather than abstract safety concepts.

VII. Conclusion

Nissan North America, Inc., and Nissan Motor Co., Ltd. v. Henderson‑Brundidge is significant for several reasons:

  • It reaffirms and protects trial‑court discretion in resolving juror‑nondisclosure new‑trial motions, emphasizing that Freeman and its factors guide but do not predetermine outcomes. Prior cases like Jimmy Day and the plurality in Hood do not impose rigid, categorical rules that strip trial judges of judgment in assessing materiality and prejudice.
  • It clarifies Rule 59.1, confirming that joint motions or stipulations filed of record are sufficient “express consent” to extend the time to rule on postjudgment motions, and that successive extensions can lawfully push the deadline beyond the initial 90 days, so long as jurisdiction has been continuously preserved.
  • It confirms a relatively plaintiff‑friendly threshold for getting AEMLD design‑defect claims to a jury, where expert testimony identifies concrete, feasible alternative designs and links them causally to injury avoidance or mitigation.
  • Through the concurring opinions, it opens a conversation about whether Alabama should recalibrate its juror‑nondisclosure doctrine in line with the federal McDonough standard, while still underscoring the foundational importance of truth in voir dire and the central role of peremptory strikes in building impartial juries.

Going forward, this decision will serve as a key reference point in:

  • trial‑level practice on voir dire challenges and juror misrepresentation;
  • postjudgment scheduling and Rule 59.1 strategy;
  • AEMLD litigation involving safety‑system design choices, particularly in the automotive context.

Its most immediate doctrinal contribution is to restore to trial judges the full measure of discretion that Alabama law has always contemplated they should exercise when determining whether a juror’s silence during voir dire has probably prejudiced a party’s right to an impartial jury.

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