Jordan Eskridge v. Pacific Cycle, Inc.
Filing
UNPUBLISHED PER CURIAM OPINION filed. Originating case number: 2:11-cv-00615 Copies to all parties and the district court. [999279355].. [13-1259]
Appeal: 13-1259
Doc: 32
Filed: 01/17/2014
Pg: 1 of 27
UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 13-1259
JORDAN ESKRIDGE,
Plaintiff - Appellant,
v.
PACIFIC CYCLE, INC., a foreign corporation; WAL−MART STORES
EAST, LP,
Defendants – Appellees,
and
WAL−MART STORES, INC., a foreign corporation;
INDUSTRY CO., LTD, a foreign corporation,
KUN
TENG
Defendants.
Appeal from the United States District Court for the Southern
District of West Virginia, at Charleston.
Joseph R. Goodwin,
District Judge. (2:11-cv-00615)
Argued:
December 10, 2013
Decided:
January 17, 2014
Before TRAXLER, Chief Judge, and WILKINSON and DAVIS, Circuit
Judges.
Affirmed in part, reversed in part, and remanded by unpublished
per curiam opinion.
ARGUED: Christopher Brinkley, MASTERS LAW FIRM, LC, Charleston,
West Virginia, for Appellant.
Tanya Annette Hunt Handley,
Appeal: 13-1259
Doc: 32
Filed: 01/17/2014
Pg: 2 of 27
MACCORKLE
LAVENDER
PLLC,
Charleston,
West
Virginia,
for
Appellees.
ON BRIEF: John L. MacCorkle, Charleston, West
Virginia, Heather M. Noel, MACCORKLE LAVENDER PLLC, Morgantown,
West Virginia, for Appellees.
Unpublished opinions are not binding precedent in this circuit.
2
Appeal: 13-1259
Doc: 32
Filed: 01/17/2014
Pg: 3 of 27
PER CURIAM:
Jordan
Eskridge
appeals
a
district
court
order
granting
summary judgment against him in his products liability action.
We affirm in part, reverse in part, and remand for trial.
I.
This case arises out of injuries that Eskridge suffered
while riding his Mongoose XR100 bicycle when he was 13 years
old.
Eskridge’s father bought the bicycle, which was equipped
with a Quando quick-release hub, at a Wal-Mart in Beckley, West
Virginia.
The bicycle was preassembled and it came with an
owner’s manual.
Eskridge enjoyed the bike for more than three
years without incident, but then one day, as he was riding over
a speed bump, he crashed and suffered very serious injuries.
Eskridge
eventually
filed
suit
in
West
Virginia
state
court, naming as defendants – as is relevant here – Pacific
Cycle, Inc., which designed the bike, and Wal-Mart Stores, Inc.,
which sold it to Eskridge’s father. 1
He alleged that as he rode
over the speed bump on the day he was injured, the bicycle’s
front wheel separated from the front forks and when the bicycle
came down the front wheel was jammed into the forks, stopping
the bicycle suddenly and causing him to strike the handlebars
1
Wal-Mart Stores East, LP, was later substituted for WalMart Stores, Inc.
We will refer to Pacific Cycle, Inc., and
Wal-Mart Stores East, LP, as “Defendants.”
3
Appeal: 13-1259
Doc: 32
Filed: 01/17/2014
and fall to the ground.
Pg: 4 of 27
Eskridge asserted causes of action for
strict liability, negligence, and breach of warranty, and he
sought compensatory and punitive damages.
a
result
of
deficiencies
in
He claimed that “[a]s
design,
testing,
assembly,
inspection, and provision with instructions and warnings, the
Mongoose
XR100,
and/or
its
Quando
defective” in several respects.
Defendants
later
removed
quick-release
hub,
were
J.A. 25.
the
action
to
federal
court and eventually moved for summary judgment.
district
Defendants
maintained that Eskridge could not prove that the quick-release
hub in the Mongoose XR100 (“Mongoose”) was defectively designed
because Eskridge’s expert, James Green, conceded that, if used
properly,
the
mechanisms
quick
in
the
release
world.”
is
J.A.
“one
of
220.
the
The
best
clamping
Defendants
also
maintained that no failure-to-warn or inadequate-labeling theory
could
succeed
because
neither
Green
nor
Eskridge
offered
evidence of the “industry standard, exemplar owner’s manuals or
any other document or standard” and because Green offered no
basis for believing that providing warnings and instructions in
the
owner’s
manual
was
an
inadequate
method
communicate the applicable warning to the user.
Eskridge
then
filed
a
response
by
which
to
J.A. 62.
detailing
his
theories,
based on Green’s report and testimony, that the Mongoose was
defective in several different respects.
4
Understanding Green’s
Appeal: 13-1259
Doc: 32
opinions
Filed: 01/17/2014
requires
a
little
Pg: 5 of 27
background
regarding
the
quick-
release mechanism.
A quick-release mechanism allows a bicycle’s front wheel to
be
removed
quickly
and
without
tools.
Although
originally
designed for racing bicycles, the device also can benefit the
casual rider who is removing the wheel for any reason, such as
to transport the bicycle, lock it up in public, or change a flat
tire.
Consequently, even most bicycles sold for casual use are
equipped with a quick-release hub.
On a bicycle equipped with such a device, the front “fork
blades,” which are the arms of the bicycle holding the wheel,
each have a u-shaped “dropout” on their end.
And, the axle of
the front wheel has a cylindrical hollow space running through
it.
The quick-release mechanism is a rod that is threaded on
one end and that has a lever-operated cam assembly on the other.
With such a system, the wheel is connected to the bicycle when
the rod is placed through the hollow part of the front wheel
axle so that it protrudes a little bit on either end.
The wheel
is then situated between the fork blades so that both ends of
the rod fit in the dropouts.
To secure the wheel, a nut on one
end of the rod is tightened and the lever on the other side is
pressed
inward.
The
lever
tightens
the
rod
so
that
mechanism is pushing on each dropout from the outside.
5
the
This
Appeal: 13-1259
Doc: 32
Filed: 01/17/2014
Pg: 6 of 27
pressure keeps the wheel attached while the bicycle is being
ridden.
Green inspected Eskridge’s bicycle and concluded that it
was defective in three ways.
First, the fork holding the front
wheel
the
was
defective
rather than closed.
because
fork
blades’
ends
were
open
Green opined that open-fork systems created
the reasonably foreseeable risk that a user would install his
quick-release
hub
improperly,
which
separate from the fork during use.
intelligent
users
who
are
would
cause
the
hub
to
Green noted that even for
attempting
to
follow
perfect
instructions, fastening a quick release is a “subtle” process
that is often done incorrectly.
J.A. 208.
Green also opined
that there was no benefit to a casual rider of an open-fork
system.
Second, Green concluded that, the inherent problems with
the open-fork system aside, the design of the Mongoose’s openfork system differed from that of the vast majority of open-fork
designs in the industry, such that it was a far trickier process
to install the hub correctly on the Mongoose.
The problem as
Green described it is that protuberances at the end of each
dropout in an open-fork mechanism generally serve to keep the
wheel from separating from the bicycle in the event that the hub
has not been installed correctly.
However, with the Mongoose,
“you
yet
can
put
the
wheel
on”
and
6
not
“get
it
over
the
Appeal: 13-1259
Doc: 32
Filed: 01/17/2014
protuberances completely.”
Pg: 7 of 27
J.A. 210.
“[I]f you don’t have it
seated just perfectly, [so] that it’s off just a little bit on
either
side
so
that
it’s
not
completely
clearing
the
protuberance when you fasten it, it comes right out of there”
during use.
indicated
Eskridge
contrast,
J.A. 210.
that
to
that
cause
with
Green testified that his investigation
most
the
the
likely
is
accident.
exactly
Green
industry-standard
almost impossible to . . .
what
happened
explained
open-fork
that,
design,
to
in
“it’s
fasten the quick release in there
with it at an angle or onto the tips.
tips in order to fasten it.”
You have to get over the
J.A. 211.
Thus, the risk of
mistakenly believing that the hub is properly installed is much
greater on the Mongoose.
Finally,
Green
opined
that
the
bicycle’s
warnings
and
instructions regarding the quick release were inadequate because
they were contained only in the owner’s manual.
experience,
manuals,
and
most
he
bicycle
has
owners
found
do
that
not
read
quick-release
In Green’s
their
owner’s
warnings
are
effective only when a warning label is placed on the quickrelease itself or warnings are actually provided to the consumer
at the point of sale.
Eskridge
also
argued
in
his
response
memorandum
that
Green’s acknowledgement that the quick release is one of the
world’s best clamping systems if used properly did not doom his
7
Appeal: 13-1259
Doc: 32
Filed: 01/17/2014
design-defect
theories
Pg: 8 of 27
because
it
was
reasonably
foreseeable
that the quick release would not in fact be used properly.
further
contended
noncompliance
with
that
he
was
government
or
not
required
industry
to
standards
He
prove
to
prove
defectiveness under either a failure-to-warn or a design theory.
And he argued that he had created a jury issue regarding his
entitlement
to
manufacture
potential
associated
of
for
punitive
the
damages
bicycle,
Defendants
mis-installation
dangers
to
because,
of
riders;
prior
were
were
the
aware
of
the
hubs
and
the
quick-release
they
to
aware
of
customer
complaints of quick-release wheels separating from bicycles and
causing accidents; they conducted no technical quality assurance
on the bicycle; and they made no effort to ensure that their
warnings
actually
and
instructions
reaching
owners
regarding
and
quick-release
were
effectively
hubs
were
conveying
necessary instructions and warnings.
Defendants
arguments
they
then
filed
presented
in
a
reply
their
generally
initial
reiterating
memorandum.
the
In
a
footnote, however, they also added that while Green “may be an
expert on bicycles, there has been nothing offered to suggest
that [he] is an expert in labeling or in the retail industry.”
J.A. 324 n.2 (citing a case in which Green was held unqualified
to offer an expert opinion “on the standards or customs of the
8
Appeal: 13-1259
Doc: 32
Filed: 01/17/2014
Pg: 9 of 27
retail industry because he has not indicated any background in
that area” (internal quotation marks omitted)).
The parties then argued the summary judgment motion before
the district court.
During that argument, Defendants did not
challenge the admissibility of any expert testimony that Green
would provide.
Following argument, the court took the motion
under advisement.
While
the
summary
judgment
motion
was
still
pending,
Defendants moved in limine to preclude Green from testifying:
(1) concerning deficiencies in the owner’s manual; (2) that most
bicyclists do not read owner’s manuals; (3) that the labeling on
the
bicycle
standards.
was
inadequate;
(4)
or
about
retail
industry
The motion was based on contentions that Green had
not criticized the substance of the warnings contained in the
owner’s manual, that he was not an expert in labeling or the
retail
industry,
and
that
Eskridge
had
not
admissible testimony on the identified issues.
forecasted
any
Regarding the
lack of admissible testimony, Defendants specifically asserted
that Green’s testimony in these areas was neither reliable nor
relevant, and they argued that it was not based on sufficient
data since Green admitted he had “never studied the issue of
people reading their owner’s manuals.”
Eskridge
qualifications
then
to
filed
testify
a
J.A. 365.
response
regarding
9
discussing
warnings,
labels,
Green’s
owner’s
Appeal: 13-1259
Doc: 32
manuals,
Filed: 01/17/2014
and
retail
following facts.
industry
Pg: 10 of 27
standards,
which
included
the
Green is a professional engineer with more
than 30 years experience, and he has worked on more than 500
cases involving quick-release hub bicycle accidents.
His book,
Bicycle
Engineer,
Accident
features
a
Reconstruction
chapter
on
for
the
quick-release
hubs
Forensic
and
their
role
in
accidents, and he has published many articles on that subject.
Creating
appropriate
warnings
and
labels
for
a
particular
design, so that they accurately convey the necessary information
to the product user, was an integral part of his engineering
education.
Since
recommendations
1976,
regarding
Green
user
major bicycle manufacturers.”
has
and
“evaluated
training
J.A. 385.
and
manuals
made
for
all
And, he helped develop
a label to be placed on the flange of one manufacturer’s quickrelease
hubs
results
of
extensive
to
warn
misusing
experience
users
a
of
the
potentially
quick-release
creating
hub.
manuals
in
catastrophic
Green
other
also
has
industries.
Finally, he has been retained by several retailers, including
Wal-Mart,
Lowe’s,
Performance
Bikes,
and
Brooklyn
Bikes,
to
revise and implement appropriate retail industry standards.
Eskridge also argued in his response, as is relevant here,
that Green’s view that most bicycle users do not read their
owner’s manuals and that labels on the bicycle itself or point-
10
Appeal: 13-1259
Doc: 32
of-sale
Filed: 01/17/2014
warnings
were
Pg: 11 of 27
necessary
was
based
on
his
decades
of
experience in the bicycle industry.
Two weeks later, the district court granted the Defendant’s
motion for summary judgment.
See Eskridge v. Pacific Cycle,
Inc., No. 2:11-cv-00615, 2013 WL 596536 (S.D. W. Va. Feb. 15,
2013).
Mongoose
The court ruled that Eskridge’s three theories that the
was
defective
were
all
essentially
failure-to-warn
theories because they all asserted unreasonable exposure to the
danger that the user would misuse the product (by installing the
quick-release hub incorrectly).
See id. at *3-4.
And the court
added:
Eskridge has simply provided no admissible evidence
that the warnings were inadequate.
Green merely
offered his personal opinion that no one should ever
rely upon an owner’s manual to give warnings or
instructions.
This opinion is inadmissible for two
reasons.
First, Green does not base this opinion on
“sufficient
facts or
data”
required
for
expert
opinions to be admissible.
FED.R.EVID. 702.
Second,
while Green may be an expert on bicycle engineering
and design, there is no evidence that he is qualified
to offer an expert opinion on the standards of the
retail industry.
Id. at *4 (citation omitted).
II.
Eskridge
first
argues
that
the
district
court
erred
in
granting summary judgment against him on his strict liability,
breach of warranty, and negligence claims, all of which asserted
11
Appeal: 13-1259
that
Doc: 32
Filed: 01/17/2014
Eskridge’s
injuries
defectiveness.
reviews
were
caused
by
the
Mongoose’s
We agree.
This
Pg: 12 of 27
court
de
novo
a
district
court’s
order
granting summary judgment, applying the same standards as the
district
G.D.F.,
court.
Inc.,
See
211
Providence
F.3d
846,
850
Square
(4th
Assocs.,
Cir.
L.L.C.
2000).
v.
Summary
judgment is appropriate “if the movant shows that there is no
genuine
dispute
as
to
any
material
fact
and
entitled to judgment as a matter of law.”
56(a).
the
movant
is
Fed. R. Civ. P.
“Because we are sitting in diversity, our role is to
apply the governing state law, or, if necessary, predict how the
state’s highest court would rule on an unsettled issue.”
Horace
Mann Ins. Co. v. General Star Nat’l Ins. Co., 514 F.3d 327, 329
(4th Cir. 2008).
Under
“three
West
broad,
categories:
Virginia
and
not
law,
a
product
necessarily
may
be
mutually
defective
in
exclusive,
design defectiveness; structural defectiveness; and
use defectiveness arising out of the lack of, or the inadequacy
of, warnings, instructions and labels.” 2
2
Morningstar v. Black &
Under West Virginia law, a product distributor is held to
the same standards as the product’s manufacturer.
See Dunn v.
Kanawha Cty. Bd. of Educ., 459 S.E.2d 151, 157 (W. Va. 1995);
Morningstar v. Black & Decker Manuf. Co., 253 S.E.2d 666, 683
n.22 (W. Va. 1979).
Thus, these issues bear equally on both
Defendants’ entitlement to summary judgment.
12
Appeal: 13-1259
Doc: 32
Filed: 01/17/2014
Pg: 13 of 27
Decker Manuf. Co., 253 S.E.2d 666, 682 (W. Va. 1979).
Design
defectiveness focuses “on the physical condition of the product
which renders it unsafe when the product is used in a reasonably
intended manner,” while use defectiveness focuses “not so much
on
a
flawed
unsafeness
physical
arising
instruct or warn.”
out
Id.
condition
of
the
of
the
failure
product,
to
as
adequately
on
its
label,
In this context,
[t]he term ‘unsafe’ imparts a standard that the
product is to be tested by what the reasonably prudent
manufacturer would accomplish in regard to the safety
of the product, having in mind the general state of
the art of the manufacturing process, including
design, labels and warnings, as it relates to economic
costs, at the time the product was made.
Id. at 682-83.
At bottom, Eskridge alleges that the Mongoose, as it was
designed, with the warnings that were included in the manual,
unreasonably exposed the consumer to the danger that the quickrelease would be fastened incorrectly and that the hub would
separate from the fork, causing a crash.
mutually
exclusive
theories
as
to
why
He advances three
the
Mongoose
was
defective, the first two of which he contends are design-defect
theories and the third of which he contends is a use-defect
theory.
First, he claims that designing the bicycle with an
open-fork system rather than a closed-fork system created a risk
that a reasonable consumer – even one trying to follow adequate
instructions – would install the quick-release hub incorrectly.
13
Appeal: 13-1259
Doc: 32
Filed: 01/17/2014
Pg: 14 of 27
Second, he claims that even if open-fork systems generally are
not unreasonably unsafe, the Mongoose’s unusual design, which
significantly
improperly
unsafe.
increases
install
the
the
chance
that
quick-release
a
hub,
consumer
was
will
unreasonably
And, third, he maintains that even if the bicycle could
have been made reasonably safe had a warning been placed on the
bicycle or given to the consumer at the point of sale, it was
certainly not reasonably safe with the warning being contained
only in the owner’s manual.
In
argue
defending
that
if
the
the
grant
Mongoose
of
is
summary
judgment,
reasonably
safe
Defendants
when
used
properly, then it follows that it was not defectively designed.
Defendants contend that since Eskridge’s expert concedes that
the bicycle is safe when used properly, i.e., when the quickrelease
hub
is
correctly
installed, 3
then
all
of
Eskridge’s
theories concerning the dangers of improper use are necessarily
use-defect theories.
prove
a
defect
in
Thus, Defendants continue, Eskridge can
the
Mongoose
only
by
showing
that
the
Mongoose’s warnings or instructions concerning the quick-release
hub were inadequate.
And, Defendants argue that the district
3
Green testified that open-fork quick-releases are “one of
the best clamping mechanisms in the world if they’re used
properly.”
J.A. 220.
The context of this testimony
demonstrates that “if they’re used properly” refers to whether
the hubs are installed properly.
14
Appeal: 13-1259
Doc: 32
Filed: 01/17/2014
Pg: 15 of 27
court correctly ruled, as a matter of law, that Eskridge could
not
prove
the
inadequacy
of
the
Mongoose’s
warnings
and
instructions.
Eskridge
rejects
Defendants’
characterization
of
his
liability theories, however, and counters that the bicycle is
designed defectively because its design creates an unreasonable
risk
that
even
reasonable
people
attempting
to
crafted instructions will misuse the bicycle.
follow
well-
He alternatively
takes issue with the district court’s conclusion that he failed
to forecast admissible evidence that the Mongoose’s warnings and
instructions were inadequate.
We agree with Eskridge on both
points and will address them seriatim.
A.
Although
the
Eskridge’s
defect
Eskridge’s
first
Design Defect
district
theories
two
court
as
theories
characterized
alleging
do
adequately label, instruct or warn.”
682.
not
all
use
allege
three
of
defectiveness,
a
“failure
to
Morningstar, 253 S.E.2d at
Rather, they assert that the Mongoose’s design creates an
unreasonable danger that no warning could adequately eliminate.
The fact that Eskridge alternatively challenges the adequacy of
the Mongoose’s warnings does not somehow negate the fact that
his primary challenges are to the bicycle’s design.
Defendants maintain that the safety of a particular design
concerns only whether it is safe for its “proper” use.
15
Thus,
Appeal: 13-1259
Doc: 32
Filed: 01/17/2014
Pg: 16 of 27
they argue that it makes no sense to claim that a product is
defectively designed because the design creates an unreasonable
risk of improper use.
We do not believe the Supreme Court of
Appeals of West Virginia would agree, however.
In determining whether a product is reasonably safe for its
intended use, “[t]he question of what is an intended use of a
product
carries
with
it
the
concept
of
all
those
uses
a
reasonably prudent person might make of the product, having in
mind
its
characteristics,
(emphasis added).
warnings
and
labels.”
Id.
at
683
Thus, “the seller is not liable when the
product is . . . used in some unusual and unforeseeable way, as
when a wall decorating compound is stirred with the finger, or
nail polish is set on fire, or an obstinate lady insists on
wearing shoes two sizes too small.”
Id. (emphasis added); see
also Landis v. Hearthmark, LLC, 750 S.E.2d 280, 291-93 (W. Va.
2013).
These
statements
make
clear
that
sellers
are
only
entitled to have their users respond reasonably to the warnings
and instructions; they are not entitled to anything more.
In
light
of
of
Green’s
testimony
concerning
the
difficulty
installing the hub correctly even with perfect instructions, a
reasonable
jury
could
find
that
even
a
“reasonably
prudent
person” might fasten the Mongoose’s release incorrectly and that
such a mistake was a wholly “foreseeable” outcome.
Thus, a
reasonable jury could well accept Green’s testimony that the
16
Appeal: 13-1259
Doc: 32
Mongoose’s
Filed: 01/17/2014
failure
even
to
Pg: 17 of 27
conform
to
the
industry-standard
open-fork design significantly increased the danger of incorrect
installation and that the bicycle was defectively designed for
that reason.
We note that this result is in line with section 2(b) of
the Restatement (Third) of Torts – Products Liability (1998),
which provides that “[a] product . . . is defective in design
when the foreseeable risks of harm posed by the product could
have been reduced or avoided by the adoption of a reasonable
alternative design . . ., and the omission of the alternative
design renders the product not reasonably safe.” 4
Comment l to
section 2 provides that “[i]n general, when a safer design can
reasonably be implemented and risks can reasonably be designed
out of a product, adoption of the safer design is required over
a warning that leaves a significant residuum of such risks.”
Indeed, Illustration 14 in that section of the Restatement is
quite pertinent to the facts before us here.
discusses
the
hypothetical
example
of
a
That illustration
garbage
truck’s
compaction chamber that warns in large letters on its outside
4
We observe that the Supreme Court of Appeals of West
Virginia has cited the Restatement (Third) of Torts – Products
Liability, for different propositions on other occasions.
See
Bennett v. Asco Servs., Inc., 621 S.E.2d 710, 717-18 (W. Va.
2005) (per curiam); Strahin v. Cleavenger, 603 S.E.2d 197, 210
(W. Va. 2004).
17
Appeal: 13-1259
Doc: 32
Filed: 01/17/2014
Pg: 18 of 27
panels “DANGER—DO NOT INSERT ANY OBJECT WHILE COMPACTION CHAMBER
IS WORKING—KEEP HANDS AND FEET AWAY.”
that
“[t]he
fact
that
adequate
The illustration notes
warning
was
given
does
not
preclude [a worker who falls into the machine] from seeking to
establish” that the compactor was defectively designed by virtue
of the fact that there was no guard to prevent such an accident.
See also Sturm, Ruger & Co. v. Day, 594 P.2d 38, 44 (Alaska
1979) (“Where the most stringent warning does not protect the
public, the defect itself must be eliminated if the manufacturer
is to avoid liability.”), modified, 615 P.2d 621 (Alaska 1980),
overruled on other grounds by Dura Corp. v. Harned, 703 P.2d
396, 405 n.5 (Alaska 1985); Uloth v. City Tank Corp., 384 N.E.2d
1188, 1192 (Mass. 1978) (“Whether or not adequate warnings are
given is a factor to be considered on the issue of negligence,
but warnings cannot absolve the manufacturer or designer of all
responsibility for the safety of the product.”).
Similarly
here,
we
conclude
that
the
Supreme
Court
of
Appeals of West Virginia would hold that despite the fact that
users can be and were instructed regarding how to use the quickrelease hub, that does not protect the seller, as a matter of
law, from liability for failing to adopt a design that would
have provided significantly better protection than any warning
could.
Rise
and
See David G. Owen, Warnings Don’t Trump Design:
Fall
of
§ 402A
Comment
18
j,
153
Products
The
Liability
Appeal: 13-1259
Doc: 32
Advisory
1
Filed: 01/17/2014
(Nov.
2001);
Pg: 19 of 27
Howard
Latin,
“Good”
Warnings,
Bad
Products, and Cognitive Limitations, 41 U.C.L.A. L. Rev. 1193,
1295 (June 1994) (“Good product warnings may be useful, indeed
necessary, in many accident-prevention settings but their value
is
inherently
treated
as
limited
legally
and
they
acceptable
consequently
alternatives
designs and marketing strategies.”).
to
should
safer
not
be
product
Given Green’s testimony
that simply utilizing the industry-standard quick-release design
would have significantly reduced the danger of misinstallation –
with no apparent cost in utility – we conclude that a reasonable
jury could find that the Mongoose was defectively designed.
As
the lack of proof of defect was the only basis the Defendants
assert in support of their entitlement to summary judgment on
the issue of liability, we reverse the grant of summary judgment
on
Eskridge’s
strict
liability,
breach
of
warranty,
and
negligence causes of action.
B.
Use Defect
We also conclude that the district court erred in ruling
that Eskridge failed to at least create a genuine factual issue
regarding whether the Mongoose contained a use defect, i.e.,
whether the Defendants “fail[ed] to adequately label, instruct
or warn.”
Morningstar, 253 S.E.2d at 682.
Under Rule 702 of the Federal Rules of Evidence:
19
Appeal: 13-1259
Doc: 32
Filed: 01/17/2014
Pg: 20 of 27
A witness who is qualified as an expert by
knowledge, skill, experience, training, or education
may testify in the form of an opinion or otherwise if:
(a) the expert’s scientific, technical, or other
specialized knowledge will help the trier of fact to
understand the evidence or to determine a fact in
issue;
(b) the testimony is based on sufficient facts or
data;
(c) the testimony is
principles and methods; and
the
product
of
reliable
(d)
the
expert
has
reliably
applied
principles and methods to the facts of the case.
Fed. R. Evid. 702.
the
We review a district court’s evidentiary
rulings, including the admissibility of expert testimony, for
abuse of discretion.
See General Elec. Co. v. Joiner, 522 U.S.
136, 141-43 (1997).
Whether a product is defective for failure to warn “is to
be
tested
by
what
the
reasonably
prudent
manufacturer
would
accomplish in regard to the safety of the product, having in
mind the general state of the art of the manufacturing process,
including
design,
labels
and
warnings,
as
it
relates
economic costs, at the time the product was made.”
253 S.E.2d at 682–83.
manufacturer
to
warn
to
the
Morningstar,
The adequacy of the method chosen by the
the
user
generally a question for the jury.
of
a
danger
is
See Ilosky v. Michelin Tire
Corp., 307 S.E.2d 603, 611 (W. Va. 1983).
20
particular
Appeal: 13-1259
Doc: 32
Filed: 01/17/2014
Pg: 21 of 27
Green testified that the Mongoose was defective for failing
to
adequately
warn
users
concerning
the
quick-release
system
because the warnings appeared only in the owner’s manual and, in
Green’s experience, users did not read such warnings when they
appeared only in manuals.
Regarding Eskridge’s claim that the
Mongoose’s warnings were defective, the district court ruled:
Eskridge has simply provided no admissible evidence
that the warnings were inadequate.
Green merely
offered his personal opinion that no one should ever
rely upon an owner’s manual to give warnings or
instructions.
This opinion is inadmissible for two
reasons.
First, Green does not base this opinion on
“sufficient
facts or
data”
required
for
expert
opinions to be admissible.
FED.R.EVID. 702.
Second,
while Green may be an expert on bicycle engineering
and design, there is no evidence that he is qualified
to offer an expert opinion on the standards of the
retail industry.
Eskridge, 2013 WL 596536, at *4 (citation omitted).
As to the district court’s second point, we note that the
Defendants do not even attempt to defend the conclusion that
Green
was
warnings.
unqualified
to
testify
as
an
expert
as
to
the
See Appellees’ brief at 16 (“The court did not rule
that Mr. Green is unqualified to testify as an expert as to
warnings,
rather,
provided
no
inadequate.”).
the
court
admissible
held
evidence
that
that
Eskridge
the
‘has
warnings
were
A witness may be qualified as an expert “by
knowledge, skill, experience, training, or education.”
Evid. 702.
simply
Fed. R.
While Green needed only one of those, see Garrett v.
21
Appeal: 13-1259
Doc: 32
Filed: 01/17/2014
Pg: 22 of 27
Desa Indus., Inc., 705 F.2d 721, 724 (4th Cir. 1983), the record
demonstrated that he had them all.
See supra, at 7-8.
We
therefore conclude that to the extent the district court ruled
that
Green
was
not
qualified
to
offer
an
expert
opinion
regarding the adequacy of the warning here, the court abused its
discretion.
We also can find no foundation for the district court’s
conclusion that Green’s opinion is not based on sufficient facts
or data.
improper
Green testified to extensively studying the issue of
installation
of
quick-release
hubs.
In
Green’s
experience, he found that bicycle owners do not generally read
their manuals and that quick-release warnings are effective only
when a warning label is placed on the quick-release itself or
the warnings are actually provided to the consumer at the point
of
sale.
accidents
Green’s
involving
involvement
quick-release
with
hundreds
systems
and
of
his
cases
of
decades
of
experience in the industry in general certainly provided him
with a strong foundation for testifying regarding those facts.
See Kumho Tire Co., Ltd. v. Carmichael, 526 U.S. 137, 156 (1999)
(“[N]o one denies that an expert might draw a conclusion from a
set
of
observations
based
on
extensive
and
specialized
experience.”).
Defendants contend that Green’s own testimony shows that he
in fact has not studied the question of whether people read
22
Appeal: 13-1259
Doc: 32
Filed: 01/17/2014
their bicycle manuals.
Pg: 23 of 27
They particularly note that when Green
testified that most bicycle owners do not read their manuals and
when he was asked whether that was “because riding a bicycle is
kind
of
intuitive,”
reason,
although
he
I’ve
answered,
never
“Well,
studied
that’s
it.”
probably
J.A.
the
246-47.
Defendants construe this testimony as meaning that Green had
never studied whether people read their manuals.
However, when
Green’s testimony is viewed in its entirety, it is plain he was
stating
that
he
never
studied
why
they
do
the
district
not
read
their
manuals.
Defendants
also
argue
that
court
correctly
determined that Green’s testimony concerning the inadequacy of
the warnings was inadmissible because it was “nothing more than
his personal belief, rather than the professional opinion of an
expert.”
Appellees’ brief at 19.
Green’s years of experience
as an engineer were well established, however, and he testified
that all of the opinions that he provided in Green’s reports and
testimony
were
certainty.” 5
“to
J.A. 256.
a
reasonable
degree
of
engineering
That his opinion was a personal opinion
5
To the extent that Defendants are suggesting that Green’s
personal conclusions as a professional engineer are not
admissible because a plaintiff must demonstrate a deviation from
industry standards and customs to prove defectiveness, they are
simply incorrect. See Jones v. Patterson Contracting, Inc., 524
S.E.2d 915, 920-22 (W. Va. 1999) (per curiam).
23
Appeal: 13-1259
Doc: 32
Filed: 01/17/2014
Pg: 24 of 27
does not somehow mean it was not a professional one.
these
reasons,
abused
its
we
can
only
discretion
conclude
that
ruling
that
in
the
For all of
district
Green’s
court
testimony
concerning the inadequacy of the method Defendants employed in
communicating their warnings would be inadmissible.
Finally, Defendants suggest that even if Green’s testimony
concerning the inadequacy of the warnings is admissible, they
were entitled to have their instructions successfully followed,
no matter how difficult it was to do so.
For this position,
Defendants rely on the statement in Morningstar that “‘[t]he
seller is entitled to have his due warnings and instructions
followed; and when they are disregarded, and injury results, he
is not liable.’”
253 S.E.2d at 683 (quoting W. Prosser, The Law
of Torts, at 668-69 (4th ed. 1971)); see Landis, 750 S.E.2d at
292.
However, whether the Mongoose’s warnings and instructions
were “due warnings and instructions” depends on the adequacy of
the method Defendants chose to communicate them to the user,
which Green’s testimony called into question.
we
discussed
regarding
Eskridge’s
In any event, as
design-defect
theories,
Morningstar does not suggest anything more than that users are
required to take notice of the warnings and instructions and act
reasonably with them in mind.
See Morningstar, 253 S.E.2d at
683 (“The question of what is an intended use of a product
carries
with
it
the
concept
of
24
all
those
uses
a
reasonably
Appeal: 13-1259
Doc: 32
Filed: 01/17/2014
Pg: 25 of 27
prudent person might make of the product, having in mind its
characteristics,
warnings
and
labels.”
(emphasis
added)).
While Morningstar stated that a seller is not liable when his
warnings or instructions “are disregarded,” id., it does not
suggest that sellers are entitled to have users successfully
follow instructions no matter how difficult the task.
In sum, in light of the admissibility of Green’s testimony
concerning
conclude
the
that
inadequacy
Eskridge
of
the
created
Mongoose’s
a
genuine
warnings,
factual
we
issue
concerning whether the Mongoose contained a use defect.
III.
Eskridge also argues the district court erred in granting
summary judgment on his claim for punitive damages.
On this
point, we disagree.
To prove entitlement to punitive damages, a plaintiff bears
the burden of showing that the defendant acted in a manner that
entitles him to such damages.
See Peters v. Rivers Edge Mining,
Inc., 680 S.E.2d 791, 821 (W. Va. 2009).
must
have
been
done
maliciously,
“[T]he wrongful act
wantonly,
mischievously,
with criminal indifference to civil obligations.”
quotation
marks
omitted).
In
products
or
Id. (internal
liability
cases,
the
plaintiff may justify a punitive damages award by showing that
the manufacturer, having actual or constructive knowledge of the
25
Appeal: 13-1259
Doc: 32
Filed: 01/17/2014
Pg: 26 of 27
product defect, continued to manufacture and distribute it.
See
Davis v. Celotex Corp., 420 S.E.2d 557, 559-61 (W. Va. 1992).
Eskridge
has
not
forecasted
evidence
that
could
satisfy
that standard here.
Although the Mongoose featured an open-fork
system,
demonstrated
the
record
that
such
a
release
had
the
benefit of allowing the user to remove the front wheel quickly
and without tools.
While Green testified that that benefit was
not significant to casual riders, the popularity of the openfork
system
on
non-racing
bicycles
indicates
otherwise.
Especially considering that open-fork systems were so commonly
employed in the industry, there was no reason to infer that the
Defendants had actual or constructive knowledge that bicycles
with
such
systems
were
inherently
defective.
Additionally,
although Green opined that the Mongoose’s particular open-fork
system was defectively designed, such that it was significantly
more
dangerous
evidence
that
knowledge
of
than
the
typical
open-fork
Defendants
this
had
difference.
any
And
systems,
actual
there
or
finally,
was
no
constructive
while
Green
testified that warning the consumer about the quick-release only
in the owner’s manual was not adequate, he conceded it was the
manner
in
which
most
bicycle
conveyed that information.
manufacturers
and
distributors
Although Green testified that some
manufacturers and distributors took the more extensive measures
that
Green
recommended,
Eskridge
26
presented
no
evidence
that
Appeal: 13-1259
Doc: 32
Defendants
had
Filed: 01/17/2014
actual
or
Pg: 27 of 27
constructive
warnings were not sufficient.
knowledge
that
their
See also Ilosky, 307 S.E.2d at
619 (holding that trial court correctly struck punitive damages
claim on failure-to-warn theory when defendant had taken steps
to warn public of the danger in question and the only issue was
whether these steps were adequate).
We therefore affirm the
grant of summary judgment concerning Eskridge’s punitive damages
claim.
IV.
For the foregoing reasons, we reverse the grant of summary
judgment
on
the
issue
of
claim for punitive damages.
liability
but
affirm
on
Eskridge’s
We therefore remand to the district
court for trial.
AFFIRMED IN PART,
REVERSED IN PART,
AND REMANDED
27
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?