Johnson v. American Honda Motor Company, Inc.

Filing 83

ORDER granting in part and denying in part 39 Motion in Limine; granting in part and denying in part 48 Motion for Summary Judgment; granting in part and denying in part 65 Motion in Limine Signed by Jeremiah C. Lynch on 3/26/2012. (TXB, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MONTANA
MISSOULA DIVISION
_____________________________________________
ZANE JOHNSON,

CV 10-126-M-JCL
Plaintiff,

vs.
ORDER
AMERICAN HONDA MOTOR
COMPANY, INC.,
Defendant.
_____________________________________________
This products liability action comes before the Court on Defendant
American Honda Motor Company, Inc.’s (“Honda”) motion for summary
judgment and Plaintiff Zane Johnson’s (“Johnson”) motions in limine.1 The
motions are granted in part and denied in part as set forth in detail below.
I.

Background
For summary judgment purposes, the Court is to take the material facts from

the record and, where disputed, view them in the light most favorable to the nonmoving party. Matsushita Elec. Indus. Co. Ltd. v. Zenith Radio Corp., 474 U.S.
574, 587-88 (1986). This task is complicated somewhat by the fact that Johnson

Honda has also filed several motions in limine, which will be addressed by
way of separate order.
1

-1-

has not submitted a statement of genuine issues in response to Honda’s summary
judgment motion as required by Local Rule 56.1(b). Without such a “statement of
genuine issues, the party seeking summary judgment and the Court are left to
search the record for evidence that could demonstrate a genuine issue of material
fact for trial.” Groves v. Croft, 2011 WL 5509028, *12. “It is not this Court’s
task, however, ‘to scour the record in search of a genuine issue of triable fact.’”
Groves, 2011 WL 5509028, *12 (quoting Pom Wonderful LLC v. Ocean Spray
Cranberries, Inc., 2011 WL 4852472, *1 (C.D. Cal. 2011). Because Johnson has
not complied with Local Rule 56.1(b), Honda argues that the statement of facts it
has presented in support of its motion should constitute the complete and
undisputed factual record for summary judgment purposes.
While Johnson has not filed the requisite statement of genuine issues, he has
submitted a brief in opposition to Honda’s motion and attached several exhibits.
The Court does not take Johnson’s failure to comply with the Local Rules lightly.
Nonetheless, the nature of Honda’s motion and the state of the record is such that
the Court can, and will, look to the submissions of both parties to determine
whether a genuine issue of material fact exists.
In mid-March 2007, Plaintiff Zane Johnson (“Johnson”) purchased a new
2007 Honda TRX 420FE four-wheeled, all-terrain vehicle (“ATV”) from Five
-2-

Valley Honda in Missoula, Montana. Dkt. 50-2, at 2. The ATV was
manufactured, assembled, and designed by Honda.
On July 4, 2007, Johnson was driving the ATV on a maintained forest road
when he failed to negotiate a right-hand turn and crashed. Dkt. 50-2, at 4-8.
According to Johnson, the ATV’s handlebars had locked up earlier that day and
would not turn. Dkt. 50-2, at 4. Johnson and one of his riding companions, Rick
Harrison (“Harrison”) visually inspected the ATV but were not able to identify any
problem. Dkt. 50-2, at 5. Harrison then rode the ATV “a little ways to see if [he]
could get it to steer” and it suddenly “started steering again, just normal....” Dkt.
50-3, at 5.
Johnson got back on his ATV, and although the steering remained “tight” he
and his companions continued on toward their destination. Dkt. 50-1, at 5.
Johnson was traveling at approximately 20 to 25 miles per hour in second or third
gear when he approached a right turn in the road. Dkt. 50-1, at 8. Johnson has
testified that just as he was “getting ready to do the turn” the steering “locked up
again” and he was unable to turn the handlebars more than approximately an
eighth of an inch in either direction. Dkt. 50-1, at 8-9. Johnson’s ATV continued
going straight, and the next thing he knew he “was off the road in midair” as the
ATV tumbled down a steep embankment. Dkt. 50-1, at 8. Johnson was injured in
-3-

the crash, and sought medical treatment. Dkt. 20, ¶ 5.
In June 2010, Johnson commenced this action in state court against Honda,
asserting claims for strict products liability based on design and manufacturing
defects, negligence, and breach of express warranty. Dkt. 4. Honda later removed
the case to this Court based on diversity jurisdiction, and Johnson amended his
complaint to withdraw his negligence claim.2 Dkt. 1 & 9.
As set forth in the Amended Complaint, Johnson’s strict product liability
claim alleges that “[t]he ATV was defective in that during assembly an expandable
clip that should have locked the right side front axle to the CV joint during
assembly had not been properly assembled, resulting in a defective condition.”
Dkt. 9, ¶ 8. Alternately, the claim alleges that the ATV was defective because the
“expandable clip that locked the right side front axle to the CV joint failed,
resulting in a defective condition.” Dkt. 9, ¶ 9.
Honda moves for summary judgment on two alternative grounds. First,
Honda argues that Johnson cannot prevail against it on any theory of recovery
According to Honda, Johnson expressly disclaimed any negligence
allegation in his Response to Honda’s Non-Uniform Interrogatory No. 16. Dkt.
49, at 16. Although Honda refers to Johnson’s discovery response as Exhibit K in
its statement of undisputed facts, there is no Exhibit K attached. It is nonetheless
apparent that Johnson has withdrawn his negligence claim because he does not
argue otherwise in response to Honda’s motion and there are no allegations of
negligence in the Amended Complaint.
2

-4-

because the undisputed evidence shows that the only defect Johnson has alleged
did not exist at the time of manufacture, and would not have caused the steering
condition he described on the day of the accident. Alternatively, Honda argues it
is entitled to summary judgment because the opinions of Johnson’s only expert
witness are inadmissible under Federal Rule of Evidence 702 and Daubert v.
Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993), and Johnson has no
evidence to support his manufacturing defect claim.
II.

Motion for Summary Judgment
A.

Legal Standards

A party moving for summary judgment bears the burden of demonstrating
“that there is no genuine dispute as to any material fact and the movant is entitled
to judgment as a matter of law.” Fed. R. Civ. P. 56(a). A movant may satisfy that
burden where the documentary evidence produced by the parties permits only one
conclusion. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 251 (1986).
The party seeking summary judgment bears the initial burden of informing
the Court of the basis for its motion, and identifying those portions of the
pleadings, depositions, answers to interrogatories, and admissions on file, together
with the affidavits, if any, which it believes demonstrate the absence of any
genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986).
-5-

Where the moving party has met its initial burden with a properly supported
motion, the party opposing the motion "may not rest upon the mere allegations or
denials of his pleading, but . . . must set forth specific facts showing that there is a
genuine issue for trial." Anderson, 477 U.S. at 248. And where the nonmoving
party bears the burden of proof at trial, the moving party may satisfy its initial
burden on summary judgment by showing that there is an absence of evidence in
the record to support the nonmoving party’s claims. Celotox, 47 U.S. at 325.
Once the moving party has satisfied its initial burden with a properly
supported motion, summary judgment is appropriate unless the non-moving party
designates by affidavits, depositions, answers to interrogatories or admissions on
file, “specific facts showing that there is a genuine issue for trial.” Celotex Corp.
477 U.S. 317, 324 (1986).
B.

Discussion

The Montana Supreme Court has adopted the theory of strict products
liability set forth in Restatement (Second) of Torts § 402A, which states that
“[o]ne who sells any product in a defective condition unreasonably dangerous to
the user or consumer...is subject to liability for physical harm thereby caused to

-6-

the ultimate user or consumer...”3 Patch v. Hillerich & Bradsby Co., 257 P.3d 383,
387 (Mont. 2011) (quoting § 402A). To establish a prima facie case in strict
product liability, a plaintiff must prove that: “(1) The product was in a defective
condition, ‘unreasonably’ dangerous to the user or consumer; (2) The defect
caused the accident and injuries complained of; and (3) The defect is traceable to
the defendant.” Wood v. Old Trapper Taxi, 952 P.2d 1375, 1379 (Mont. 1997)
(quoting Brown v. North Am. Mfg. Co., 576 P.2d 711, 717 (Mont. 1978)).
A plaintiff may pursue such a claim for strict product liability based on
design defect, manufacturing defect or failure to warn theories. See e.g., Patch v.
Hillerich & Bradsby Co., 257 P.3d 383, 386 (Mont. 2011). Johnson has pled two
of these three theories here, alleging that the ATV he purchased “was in a
defective condition and unreasonably dangerous” because of a manufacturing
defect and a design defect. Dkt. 9, ¶¶ 6-9.
1.

Manufacturing Defect

Honda argues that Johnson’s manufacturing defect claim should be
summarily dismissed because the undisputed evidence of record establishes both
that the ATV was not defective at the time of manufacture, and that the alleged
Sitting in diversity jurisdiction, this Court applies the substantive law of
Montana as the forum state. See Medical Laboratory Mgmt. Consultants v.
American Broadcasting Companies, Inc., 306 F.3d 806, 812 (9th Cir. 2002).
3

-7-

defect did not cause the accident.
The central question under a manufacturing defect theory “is whether the
product is flawed due to improper construction.” Woods v. Old Trapper Taxi, 952
P.2d 1375, 1379 (Mont. 1997). Manufacturing defects are “imperfections that
inevitably occur in a typically small percentage of products of a given design as a
result of the fallibility of the manufacturing process.” Woods, 952 P.2d at 1379.
“A defectively manufactured product does not conform in some significant aspect
to the intended design, nor does it conform to the great majority of products
manufactured in accordance with that design.” Woods, 952 P.2d at 1379.
To recover in strict liability based on a manufacturing defect, Johnson must
show, among other things, that the ATV was defective at the time of manufacture
before leaving Honda’s possession, custody, and control. See e.g., Wood, 952
P.2d at 1380; Schelske v. Creative Nail Design, Inc., 933 P.2d 799, 803 (Mont.
1997). Johnson must also show that the defect caused the accident and his
injuries. Wood v. Old Trapper Taxi, 952 P.2d 1375, 1379.
a.

Time of Manufacture

Honda first argues it is entitled to summary judgment on this claim because
the undisputed physical evidence establishes that the only defect identified by
Johnson’s expert was not present at the time of manufacture. Johnson has
-8-

disclosed Rob Larson (“Larson”), an Assistant Professor in the Department of
Mechanical and Industrial Engineering at Montana State University, as his sole
expert. Larson examined the ATV for the purpose of determining whether there
was a mechanical explanation for the steering difficulties that Johnson described
and prepared a written report. Dkt.50-6, Dkt. 50-8, at 4.
Larson wrote in his report that “[t]he right front axle assembly” of the ATV
“exhibited severe and unusual wear patterns,” which he believed were “caused by
the improper assembly of the right front ATV axle with the right front constantvelocity joint.” Dkt. 50-6, at 4. In particular, Larson found the “[e]vidence
indicate[d] that during assembly the outboard splined end of the axle was likely
not correctly inserted deep enough into the mating constant-velocity joint splines,
and as a result the circular retaining clip that should have securely fixed the two
parts together did not expand within the constant-velocity joint to retain the axle in
the correct location.” Dkt. 50-6, at 4. According to Larson, the “[i]mproper
coupling between the right front drive axle and the right front constant-velocity
joint resulted in the inability of the two components to work together as one,”
which “caused severe wear of the outboard axle splines as they ground away at the
internally-splined constant-velocity joint over time.” Dkt. 50-6, at 4. Larson
concluded that “[t]he metal-on-metal contact of two rough surfaces caused
-9-

difficult and unpredictable steering response during vehicle operation,” which
“was a likely substantial contributing factor in the accident.” Dkt 50-6, at 4.
As Honda notes, part of Larson’s theory is that the ATV’s front right axle
shaft was not properly assembled because it was not inserted deeply enough into
the right front constant-velocity joint. According to Honda, however, the
“undisputed physical evidence” proves otherwise. Dkt. 49, at 11. For support,
Honda relies on the opinion of its own expert, metallurgical engineer Michael
Stevenson (“Stevenson”), who performed a microscopic evaluation of the ATV’s
axle shaft and prepared a written report. Stevenson evaluated both the left and
right front driveshafts from the ATV, and found “witness marks on the spline
faces that ended approximately 1 mm from the inboard end of the splines.” Dkt.
50-9, at 17. As Stevenson explains it, these so-called “witness marks” resulted
“from the interference fit,” or engagement with, “the splines of the shaft and
outboard CV joints.” Dkt. 50-9, at 13-14. Stevenson determined that those
witness marks, which were consistent with those he observed on properly
assembled exemplar driveshafts, “could not have resulted if the driveshafts were
not completely inserted into the outboard CV joints.” Dkt. 50-9, at 17. Noting
that an ATV’s “driveshaft assembly experiences little to no longitudinal loads
during service,” Stevenson concluded it was “most likely that the insertion witness
-10-

marks were created during initial assembly by Honda or their representatives, at
the time of manufacture.” Dkt. 50-9, at 17. In closing, Stevenson wrote that
“Larson’s opinion that the right front driveshaft on the subject ATV was never
fully inserted into the outboard CV joint is not supported by the available physical
evidence.” Dkt. 50-9, at 18.
As Honda sees it, Stevenson’s opinion unequivocally puts to rest any
question as to whether or not the ATV’s right front axle was properly assembled.
In the Court’s view, however, Larson’s opinion to the contrary is sufficient to raise
a genuine issue of material fact as to whether the ATV was defective when it left
Honda’s possession, custody, and control. Larson concluded based on his own
examination that it was likely that the ATV’s right front axle had not been
properly coupled with the right front constant velocity joint during assembly, as
evidenced by the severe and unusual wear patterns on the ATV’s right front axle.
Dkt. 50-6, at 4. In other words, Larson has essentially concluded that the right
front axle was not properly coupled with the constant-velocity joint, because if it
had been, then those severe and unusual wear patterns would not have been
present.
While Stevenson disagrees with Larson, and has concluded based on his
own examination that the axle was fully inserted into the constant velocity joint,
-11-

he does not provide any explanation for the severe wear exhibited on the axle.
It is true, as Honda points out in its reply brief, that Johnson is the one who bears
the burden of establishing that the ATV was defective, which means that Honda
does not necessarily have to provide an explanation for the severe wear on the
axle. Nonetheless, as it now stands the record contains two competing expert
opinions – one of which is that the right front axle was fully inserted into the
constant velocity joint at the time of manufacture as evidenced by the witness
marks, and one of which is that the axle was not fully inserted into the constant
velocity joint at the time of manufacture as evidenced by the severe wear patterns.
It will be for the trier of fact to determine what weight to give each expert’s
opinion.
b.

Causation

Even assuming, as the Court has decided, that there is a factual question as
to whether or not the ATV’s right front axle was properly assembled, Honda
argues the undisputed expert evidence proves that failure to fully insert the axle
shaft “would not cause the stiff steering condition plaintiff described” and did not
cause Johnson’s accident. Dkt. 73, at 5. Honda begins by citing the opinion of its
accident reconstructionist expert, Kris Kubly. According to Honda, Kubly
performed testing on an exemplar ATV with the axle shaft improperly inserted and
-12-

then completely removed, and his results “prove[] that neither scenario causes the
steering condition described by” Johnson.4 Dkt. 49, at 11; Dkt. 50, ¶¶ 64-65.
Honda’s mechanical engineering expert, Graeme Fowler, also conducted
tests on an exemplar ATV, one of which involved using an output shaft that had
been machined “to approximate the condition of the accident shaft.”5 Dkt. 50-10,
at 19. After the ATV had been operated for a total of 15.6 miles on an off-road
riding course, Fowler concluded that the vehicle’s steering response was
“unaffected by the condition of the output shaft.” Dkt. 50-10, at 20. Honda
maintains that Kubly’s and Fowler’s opinions unequivocally establish that the
alleged defect would not have caused any steering problems.
As discussed above, however, Larson reached a contrary conclusion based
on his examination of the ATV. Larson determined it was likely that the right
front axle had not been inserted deeply enough into the constant-velocity joint at
the time of manufacture, so that the circlip did not expand. Larson believed that
this improper coupling led to severe wear of the outboard axle splines, and that the

Although Honda refers to Kubly’s report as Exhibit J in its statement of
undisputed facts, there is no Exhibit J, and no report by Kubly for the Court to
review.
4

Johnson has moved in limine to preclude Honda from introducing evidence
regarding Fowler’s testing. That motion is addressed below.
5

-13-

metal on metal contact of the two rough surfaces caused a difficult and
unpredictable steering response in the ATV.
Honda nonetheless argues that Larson’s opinion is not sufficient to raise a
genuine issue of material fact as to causation because he admitted at his deposition
that he did not evaluate whether the steering condition he identified actually
caused the accident. As Larson’s deposition testimony reflects, his assignment
was not to determine what caused the accident, but to look at “the mechanical
portion of this case, specifically the ATV, and try to discover if there were any
problems, issues that may have contributed to difficult steering as reported.” Dkt.
50-8, at 4. Larson did just that, and concluded that improper assembly of the right
front axle had likely caused a steering problem. Whether the allegedly defective
steering condition Larson identified actually caused Johnson to drive off the road
and crash will be for the jury to determine after weighing the evidence and the
credibility of the witnesses.
In what amounts to a Daubert challenge, Honda maintains that Larson’s
opinion is not reliable because he has admitted that he did not attempt to recreate
the steering condition Johnson described. At his deposition, Larson conceded that
he had not done any testing on an exemplar ATV, and had not done anything to
demonstrate or quantify the difficult and unpredictable steering response he
-14-

identified. Dkt. 50-8. As discussed below, however, Larson’s failure to conduct
such testing goes to the weight of his expert testimony, not its admissibility.
Finally, Honda argues that even accepting Larson’s opinion as set forth in
his report, the steering problem that he identified could not have caused the
accident because it is not consistent with the steering problem Johnson described.
As Johnson described it during his deposition, the steering on the ATV “locked
up” just as he was getting ready to make the right hand turn, and he was unable to
move the handlebars more than approximately an eighth of an inch in either
direction. Dkt. 50-1, at 8-9. Honda argues that Johnson’s description of what
happened is inconsistent with the steering response predicted by Larson.
As Honda notes, Larson predicted that the ATV’s damaged right side axle
shaft would have provided “intermittent and difficult steering response when the
operator exerted turning force through the steering bar assembly,” and found that
“[t]his force would be especially apparent at large turning angles and negligible
while traveling in a straight path.” Dkt. 50-7, at 1. Honda argues that Larson’s
description, which characterizes the difficult steering response as “negligible
while traveling in a straight path,” does not match Johnson’s description, which
was that he found himself unable to steer the ATV while traveling in a straight
path. According to Honda, then, there is no way that the steering problem Larson
-15-

identified could have caused the accident.
At this juncture, however, the Court cannot say as a matter of law that
Larson’s report is necessarily incompatible with Johnson’s description of what
happened. Johnson reported difficulty steering when he attempted to execute a
right hand turn. This is arguably consistent with Larson’s conclusion as set forth
in his report, which was that someone operating the ATV would experience an
intermittent and difficult steering response when exerting turning force through
the steering bar. Elsewhere in his report Larson describes the steering problem in
more detail as follows:
[A]ny turn would introduce the wear-inducing rotational speed differences
between axle and CV joint, with associated grinding, lurching, and binding.
The larger the turn angle, the greater the rotational speed difference and the
greater the grinding of the shafts.
Feedback to the operator would be intermittent as the incorrectly mated
parts wore down, but in general the problem would be expressed as negative
steering feedback during any turn as the right wheel and right axle shaft
turned at different rotational speeds, most severe at higher turning angles.
Simply stated, the ATV would feel as though it wanted to go straight.
Dkt. 50-6, at 8.
Whether Larson believes “the ATV would feel as though it wanted to go
straight” so much so that the steering might feel “locked” as Johnson described it,
is simply not clear from the face of Larson’s report or the deposition excerpts

-16-

submitted on summary judgment. At trial, Johnson will presumably testify and
describe the steering difficulty he claims to have experienced immediately before
the accident. Larson will likewise testify as to the steering problems he has
concluded were likely caused by improper assembly of the right front axle. It will
be for the jury to evaluate the credibility of that testimony, decide how much
weight to give to Larson’s opinion, and determine whether the allegedly defective
steering condition Larson identified actually caused Johnson to drive off the road
and crash.
Because of the various factual issues discussed above, Honda is not entitled
to summary judgment on Johnson’s manufacturing defect claim.
2.

Design Defect

Johnson also seeks to recover against Honda under the theory of strict
liability for defective design. Dkt. 9, at 2-3. Unlike a manufacturing defect, “a
design defect is one which ‘presents an unreasonable risk of harm,
notwithstanding that it was meticulously made according to [the] detailed plans
and specification’ of the manufacturer.” Rix v. General Motors Corp., 723 P.2d
195, 200 (Mont. 1986) (quoting Caprara v. Chrysler Corp., 417 N.E.2d 545, 55253 (N.Y. 1981)). In other words, design defects involve products that “are made in
precise conformity with the manufacturer’s design but nevertheless result in injury
-17-

to the user because the design itself was improper.” Rix, 723 P.2d at 200 (quoting
Caprara, 417 N.E.2d at 552-53).
A design is improper or “defective if at the time of manufacture an
alternative designed product would have been safer than the original designed
product and was both technologically feasible and a marketable reality.” Krueger
v. General Motors Corp., 783 P.2d 1340, 1345 (Mont. 1989) (quoting Rix 723
P.2d at 202) (emphasis omitted). This means that “evidence of alternative designs
available prior to manufacture” are “not only relevant, but necessary” to such a
products liability claim. Preston v. Montana Eighteenth Judicial Dist. Court,
Gallatin County, 936 P.2d 814, 820 (Mont. 1997).
Honda argues it is entitled to summary judgment because Johnson has failed
to even allege a proper basis for a design defect claim, and has not presented any
evidence of a proposed alternative design. Honda is correct on both fronts.6
Johnson’s strict liability claim alleges that Honda owed him “a duty of care
in the design...of the ATV in question” and that a “defect in the design” was “a
producing cause of [his] injuries and damages.” Dkt. 9, at 2-3. But the only

Honda also argues that Johnson’s “design defect claim fails because it is
premised on the same alleged defect that has been disproven by the uncontested
physical evidence.” Dkt. 49, at 13. As discussed above, however, there are
genuine issues of material fact as to whether the ATV was defective as alleged.
6

-18-

factual basis provided in the Amended Complaint to support all of Johnson’s strict
liability claims, including his design defect claim, is that “[t]he ATV was defective
in that during assembly an expandable clip that should have locked the right side
front axle to the CV joint during assembly had not been properly assembled,” or
“failed”, thereby “resulting in a defective condition.” Dkt. 9, at ¶¶ 8-9. These
allegations may plead a manufacturing defect, but they do not identify any alleged
design defect.
Furthermore, Johnson has not come forward in response to Honda’s
summary judgment motion with any evidence of alternative designs. Nor has he
provided any expert opinions in support of his ostensible design defect claim.
Johnson’s only argument in response to Honda’s motion is that he “is not required
to provide an alternative design.” Dkt. 61, at 6. Johnson takes the position that
“[t]he properly assembled design is sufficient to meet any obligation that [he] must
prove regarding the ability of Honda to produce a working design.” Dkt. 61, at 6.
But Johnson does not cite any authority for the proposition that he is not required
to produce evidence of a safer alternative design. Even more fundamentally,
Johnson does not point to any evidence suggesting that the ATV’s design
specifications were in any way defective. Johnson’s design defect claim thus fails
as a matter of law.
-19-

3.

Breach of Warranty

Johnson’s Amended Complaint includes a claim for breach of express
warranty. Dkt. 9, ¶¶ 18-21. Johnson alleges that because of the ATV’s assembly
defect, the vehicle failed to conform to the manufacturer’s express warranty. Dkt.
9, ¶¶ 18-21. Honda moves for summary judgment on this claim as well. Honda’s
sole supporting argument is that because “the uncontested evidence provides that
the axle shaft was properly assembled at the time of manufacture,” Johnson
“cannot prove a breach of warranty claim on this basis.” Dkt. 49, at 16. As
discussed above, however, there are genuine issues of material fact precluding
summary judgment on Johnson’s manufacturing defect claim. Because Johnson’s
manufacturing defect claim survives, so too does his claim for breach of express
warranty.
4.

Admissibility of Expert Opinion

Alternatively, Honda argues it is entitled to summary judgment as to
Johnson’s claims because Larson’s expert opinions are inadmissible under Federal
Rule of Evidence 702 and Daubert v. Merrell Dow Pharmaceuticals, Inc., 509
U.S. 579 (1993).
Fed. R. Evid. 702 provides that expert testimony is admissible “[i]f
scientific, technical, or other specialized knowledge will assist the trier of fact to
-20-

understand the evidence or to determine a fact in issue”; the witness is qualified
“by knowledge, skill, experience, training, or education”; and “(1) the testimony is
based upon sufficient facts or data, (2) the testimony is the product of reliable
principles and methods, and (3) the witness has applied the principles and methods
reliably to the facts of the case.” The court acts as a “gatekeeper”, and must
ensure that expert testimony is both reliable and relevant. Daubert, 509 U.S. at
589. This gatekeeping role entails making “a preliminary assessment of whether
the reasoning or methodology underlying the testimony is scientifically valid,” and
“whether that reasoning or methodology properly can be applied to the facts in
issue.” Daubert, 509 U.S. at 592-93.
In assessing the reasoning or methodology used, the court may consider
“such criteria as testability, publication in peer reviewed literature, and general
acceptance.” Primiano v. Cook, 598 F.3d 558, 564 (9th Cir. 2010)(citing Daubert,
509 U.S. at 592-94). The court’s inquiry is a flexible one, however, and these
specific criteria do not necessarily apply “to all experts or in every case.”
Primiano, 598 F.3d at 564 (quoting Kumho Tire Co. v. Carmichael, 526 U.S. 137,
141 (1999)). “Shaky but admissible evidence is to be attacked by cross
examination, contrary evidence, and attention to the burden of proof, not
exclusion.” Primiano, 598 F.3d at 564. Whether to admit or exclude expert
-21-

testimony is within the court’s discretion. Kumho Tire Co., 526 U.S. at 152.
Honda does not dispute the relevancy of Larson’s opinion, and does not
argue that he lacks the qualifications or experience to testify as an expert. Rather,
Honda challenges the reliability of Larson’s opinion and his conclusion that “the
front right axle shaft of the Honda TRX 420 ATV in question was improperly
assembled, and that this led directly to the wear of the axle and the difficult
steering condition that was reported by the plaintiff in this case.” Dkt. 50-7, at 1.
Honda argues that Larson’s opinion can be broken down into four parts, or subopinions, each of which is “based on nothing more than assumption and
speculation”: (1) that the wear marks on the right front axle were abnormal and
severe; (2) that those wear marks indicated improper assembly of the axle; (3) that
improper assembly of the axle caused the difficult steering response Johnson
described, and; (4) that the steering condition may have been a contributing factor
to the accident. Dkt. 49, at 18.
With regard to the first of these four sub-opinions, Honda maintains that
Larson’s description of the wear marks on the axle as “abnormal” or “severe” is
not supported by any scientific evaluation or testing. As Honda notes, for
example, Larson’s deposition testimony reflects that he did not specifically
quantify the amount of wear he observed, did not quantify how much rotation
-22-

would be required to produce that amount of damage, and did not compare the
wear marks to properly inserted exemplar axle shafts. Dkt. 50-8, at 9-11.
Larson did, however, base his assessment on a physical examination of the
ATV and its component parts. Larson examined the axle shaft and visually
compared the damaged right end to the undamaged left end. Larson also
compared the damaged axle shaft to other, undamaged component parts of the
ATV, noting “the relative relationship of the wear patterns to other components,
specifically the CV joint.” Dkt. 50-8, at 9. In addition, Larson visually compared
the damaged axle shaft with internet photographs of undamaged axle shafts.
While Honda has pointed to several legitimate and potentially persuasive grounds
for cross-examination, Larson’s opinion as to the general nature of the wear marks
on the axle is sufficiently supported by his physical examination of the ATV’s axle
and other component parts to be admissible.
Honda also challenges Larson’s second conclusion, which is that the axle
shaft was improperly assembled. In particular, Honda points out that when Larson
examined the interior recess of the constant velocity joint that would have
permitted the circlip to expand when the axle was fully inserted, there were no
marks visible. Dkt. 50-6. But because the lack of marks could have been due to
the extreme hardness of those internal splines, Larson called those particular
-23-

results inconclusive. Dkt. 50-6. Larson nonetheless concluded based on his other
findings that it was likely the axle “had not been properly installed at the time of
assembly.” Dkt. 50-6, at 12. He did so after conducting testing to rule out other
explanations for the wear marks on the axle shaft, and based on his examination of
the axle shaft and other component parts. Dkt. 50-6, at 8-20. Dkt. 50-8, at 12.
Larson’s opinion is sufficiently reliable to be presented to the jury, at which point
Larson will be subject to full cross-examination.
As broken down by Honda, Larson’s third sub-opinion is that “[t]he
condition that caused the severe wear and deformation would also result in
difficult and unpredictable steering response.” Dkt. 50-6, at 4; Dkt. 50-8, at 16.
Honda argues this opinion is without any scientific basis because Larson did not
(1) try to recreate a scenario where he was able to lock the handlebars in a straight
direction; (2) re-insert the ATV’s axle or an exemplar axle into the vehicle to
determine if it would result in stiff or unpredictable steering; (3) perform any
testing on an exemplar ATV; (4) analyze the ATV’s service records; (5) specify
when the axle shaft became entirely separated from the ATV; or (6) perform an
accident reconstruction. Dkt. 49, at 22; Dkt. 50-8, at 16-17.
While these points may be the proper subject of cross-examination, they do
not make Larson’s opinion so unreliable as to be inadmissible. Larson physically
-24-

examined the ATV and its component parts, performed various tests on those
component parts, and applied his mechanical engineering knowledge and specific
expertise in concluding that improper coupling of the right front axle shaft and
constant velocity joint caused severe wear and deformation and also caused a
difficult and unpredictable steering response.
Honda also challenges the reliability of Larson’s opinion as to the nature of
the steering condition on the ground that it is inconsistent with Johnson’s
description of the steering difficulty he experienced. As discussed above,
however, the Court cannot make that determination as a matter of law based on the
record as it now stands. And in any event, whether Larson’s opinion is consistent
with Johnson’s deposition testimony has nothing to do with its scientific
reliability.
Finally, Honda argues there is no scientific basis for Larson’s fourth subopinion, which is that the “condition of difficult, unpredictable steering was a
likely substantial contributing factor in the accident.” Dkt. 49, at 23; Dkt. 50-6, at
4. On this point, Honda is correct. By his own admission, Larson did not
reconstruct the accident and did not investigate or attempt to identify the cause of
the accident. As Larson described it, his “main assignment was to look at the
mechanics, the mechanical portion of this case, specifically the ATV, and try to
-25-

discover if there were any problems, issues that may have contributed to difficult
steering as reported.” Dkt. 50-8, at 4-5. Although Larson’s opinion on the
“mechanical portion” of the case is sufficiently reliable to be presented to the jury
subject to cross examination, Larson cannot testify as to whether or not the alleged
steering condition actually caused Johnson to drive off the road. With the
exception of this sub-opinion, Honda’s motion for summary judgment is denied
for the reasons set forth above.
5.

Attorney Fees

Johnson characterizes Honda’s summary judgment motion as “frivolous”
and asks the Court to award him the attorney fees he has incurred in responding to
the motion. Dkt. 61, at 10. Honda’s motion was hardly frivolous, however, and
Johnson’s request for fees is denied accordingly.
III.

Johnson’s Motions in Limine
Johnson moves in limine to preclude Honda from presenting any evidence

or argument relating to the following: (1) exemplar testing performed by defense
expert Graeme Fowler; (2) the fact that Johnson was not wearing a helmet at the
time of the accident; (3) non-disclosed expert opinions, and; (4) attribution of fault
to non-parties.
“To exclude evidence on a motion in limine ‘the evidence must be
-26-

inadmissible on all potential grounds.’” Wood v. Mt. Dept. of Revenue, 2011 WL
4348301 *2 (D. Mont. Sept. 16, 2011) (quoting BNSF Ry. v. Quad City Testing
Laboratory, Inc., 2010 WL 4337827 (D. Mont. Oct. 26, 2010)). “Unless evidence
meets this high standard, evidentiary rulings should be deferred until trial so that
questions of foundation, relevancy and potential prejudice may be resolved in
proper context.” Id.
A.

Exemplar Testing

Mechanical engineer Graeme Fowler performed an investigation of the
technical issues involved in this case, and prepared a written report. Dkt. 50-10.
As part of that investigation, Fowler tested an exemplar ATV for the purpose of
evaluating Larson’s opinion that Johnson’s ATV had developed steering problems
because of an improperly assembled axle shaft. Fowler conducted two different
tests, the first of which involved operating the exemplar ATV “with the front right
output shaft circlip removed.” Dkt. 50-10, at 18. Before operating the ATV,
Fowler glass beaded the outboard shaft splines “so as to allow the shaft to move
freely in the female splines of the CV joint inner race.” Dkt. 50-10, at 18. The
inboard constant velocity boot was then “installed correctly while the outboard
boot was cut and attached to the shaft to approximate the condition observed after
the accident.” Dkt. 50-10, at 18. The ATV was then operated in that condition for
-27-

a total of 18 miles on a “relatively windy and rough dirt road,” and for an
additional 4.4 miles on an “asphalt skid pad utilizing a wide range of steering
inputs.” Dkt. 50-10, at 18. This demonstration indicated that the axle shaft stayed
in “approximately the same lateral position” and while the “shaft did not quite seat
to the full extent as if the circlip was installed,” it “did not have a tendency to
migrate inboard during the 18 miles of operation.” Dkt. 50-10, at 18-19.
A second riding demonstration was conducted using an exemplar output
shaft that was machined “to approximate the condition of the accident shaft.” Dkt.
50-10, at 19. The modified shaft was installed in the ATV “with the inboard boot
properly attached and the outboard boot cut and attached to the shaft to
approximate the condition of the accident shaft.” Dkt. 50-10, at 19. The ATV was
then operated for a total of 15.6 miles on an off-road riding course, during which
time “the steering response of the vehicle was unaffected by the condition of the
output shaft....” Dkt. 50-10, at 19. Dkt. 50-10, at 20.
Fowler concluded that “with the end of the output shaft in the post-accident
condition and still inserted in the inner race of a functioning outboard CV joint,”
his testing had “demonstrated that the shaft would remain in the joint and not
affect the steering or control of the ATV.” Dkt. 50-10.
Johnson characterizes Fowler’s tests as accident reconstructions, and argues
-28-

that such evidence is not admissible under Fed. R. Evid. 403 unless there is a
foundational showing that those reconstructions were substantially similar to his
actual accident.7 If a test or demonstration is performed for purposes of recreating
or simulating an accident, federal courts generally require that the proponent
establish substantial similarity between the test or demonstration and the accident
conditions. See e.g. Muth v. Ford Motor Co., 461 F.3d 557, 566 (5th Cir. 2006);
McKnight v. Johnson Controls, Inc., 36 F.3d 1396, 1401 (8th Cir. 1994); Fusco v.
General Motors Corp., 11 F.3d 259, 264 (1st Cir. 1993).
Johnson maintains that Honda cannot make the requisite foundational
showing because the tests Fowler performed were significantly different from the
actual accident. As Johnson notes, for example, his ATV had approximately 1,000
miles on it at the time of the accident but the exemplar ATV was only driven 18
miles during the first test, and 16 miles during the second. Johnson also contends
that although the exemplar axle shafts were ground down, they retained distinctive
splines and were not as worn down and smooth as was the axle on his own ATV.
Finally, Johnson argues that unlike the constant velocity joint on his own ATV,

Although Johnson cites two Montana Supreme Court decisions for the
proposition that accident recreations are only admissible if they are substantially
similar to the accident experienced by the plaintiff, evidentiary issues like these
are controlled by the Federal Rules of Evidence and federal caselaw.
7

-29-

the constant velocity joint on the exemplar ATV did not contain any metallic
spline fragments and was therefore free to move in its intended way. In light of
these differences, Johnson argues the probative value of evidence relating to
Fowler’s exemplar testing is substantially outweighed by the danger of unfair
prejudice, confusing the issues, or misleading the jury.
Honda does not attempt to establish substantial similarity between Fowler’s
exemplar testing and Johnson’s accident. Instead, Honda argues that the
substantial similarity requirement is wholly inapplicable because Fowler’s tests
were designed to demonstrate scientific and mechanical principles, not to recreate
or simulate the accident.
If tests or experiments are not designed to recreate the actual accident, but
are instead “used to demonstrate only general scientific principles,” a foundational
showing of substantial similarity is not required. McKnight, 36 F.3d at 1401. Of
course, “[e]xperimental evidence falls on a spectrum,” and distinguishing between
tests that purport to recreate an accident and those that simply demonstrate
scientific principles is often difficult. McKnight, 36 F.3d at 1402.
The Court agrees with Honda that to the extent Fowler used the tests to
investigate whether an improperly assembled axle shaft would have an effect on
steering and to demonstrate the scientific principles involved, the tests do not
-30-

appear to recreate the accident. So cabined, Fowler’s tests are admissible under
Rule 403 without a foundational showing of substantial similarity.
As discussed above, Johnson’s expert, Robert Larson, concluded based on
his examination of the right front axle and constant-velocity joint that the metal on
metal contact between the rough surfaces of the axle and joint would cause a
difficult and unpredictable steering response in the ATV. Honda’s expert Fowler
reaches a different conclusion based in part upon his exemplar testing.
It is entirely legitimate for Honda to present evidence in its defense
regarding the effect of the alleged manufacturing defect on the vehicle’s steering.
The fact that Fowler conducted the exemplar testing to assess whether metal on
metal contact between the surfaces of the exemplar axle and joint would impact
the steering of the ATV does not turn his testing into a reconstruction of what
occurred at the time of the accident. And Johnson is free to challenge the validity
of Fowler’s testing and conclusions through rigorous cross-examination.
The Court is satisfied that the jury will not be confused and somehow
believe that Fowler’s tests were meant to show what probably happened during the
accident. Any risk of jury confusion can be alleviated by giving a limiting
instruction making clear that the evidence of Fowler’s exemplar testing – just like
Larson’s evaluation – was not meant to reconstruct Johnson’s accident. See e.g.
-31-

McNight, 36 F.3d at 1403 n.6. Therefore, Johnson’s motion in limine is denied to
the extent it seeks to exclude evidence of Fowler’s exemplar testing as that testing
bears upon the issue of whether the alleged defect could lead to difficulty steering.
Fowler does not, however, limit his opinion to the issue of whether the
alleged defect would impact steering. Instead, he goes on to express opinions
regarding the risk of ATV use and ultimately opines that Johnson’s accident was
the result of operator error – not a product defect. In doing so, Fowler obviously
does undertake to recreate the accident by explaining what he believes actually
caused Johnson to crash. These opinions run afoul of Rule 403 because the
requisite “substantial similarity” between the exemplar axle shaft and the subject
axle shaft is lacking. Therefore, Johnson’s motion is granted to the extent Fowler
will not be allowed to express his opinion as to the risk of ATV use and the cause
of Johnson’s accident.
B.

Helmet Non-Use

In Montana, contributory negligence is not a defense to a strict product
liability claim, with the exception that a defendant may assert the affirmative
defenses of assumption of the risk and misuse as codified at Mont. Code Ann. §
27-1-719. Johnson moves to preclude any evidence or argument relating to the
fact that he was not wearing a helmet at the time of the accident on the ground that
-32-

it is not admissible to prove either of these affirmative defenses.
1.

Misuse

To prevail on a product misuse defense, the defendant must prove that “[t]he
product was unreasonably misused by the user or consumer and the misuse caused
or contributed to the injury.” Mont. Code Ann. § 27-1-719(5)(b). As defined by
the Montana Supreme Court, the misuse defense is one pursuant to which “a
manufacturer is not responsible for injuries resulting from abnormal or unintended
use of a product if such use was not reasonably foreseeable.” Hart-Albin Co. v.
McLees Inc., 870 P.2d 51, 53 (Mont. 1994). This definition “incorporates the
concept of abnormal or unintended use, but emphasizes unforeseeability.” HartAlbin Co., 870 P.2d at 54.
The “statute clearly contemplates that manufacturers must expect, or, stated
another way, must reasonably foresee, that their products will not always be used
in precisely the manner for which they were designed or constructed.” Lutz v.
National Crane Corp., 884 P.2d 455, 459 (Mont. 1994). If the manufacturer
expects or “reasonably foresees that its product is or will be subject to misuse in a
certain fashion, then the fact that the user of the product actually does use – or, in
the words of the statute, misuse – the product in that fashion can hardly be said to
be ‘unreasonable’.” Lutz, 884 P.2d at 460. In other words, “reasonably
-33-

foreseeable misuse is reasonable misuse.” Lutz, 884 P.2d at 460. If the “offending
misuse” was reasonable, then the defense of misuse is not available. Lutz, 884
P.2d at 460.
Johnson argues that his failure to wear a helmet while operating the ATV
was reasonably foreseeable, and did not constitute an “unreasonable misuse” of
the product. The Court agrees. As Johnson notes, Montana law does not require
a person of majority age to wear a helmet while operating a “quadricyle.”8
Particularly in light of the fact that helmet use is not legally required in this state,
an ATV manufacturer can expect, or reasonably foresee, that some Montanans will
operate their ATVs without wearing helmets. While doing so may be a misuse, it
is not an “unreasonable misuse.” Because an ATV manufacturer can reasonably
foresee that its product will be misused in this fashion – i.e., by a driver who does
not wear a helmet – the defense of misuse is not available. Lutz, 884 P.2d at 46061.
In an attempt to convince the Court differently, Honda argues that it was an
“unreasonable misuse” for Johnson to operate the ATV without a helmet in light
A “quadricycle” is statutorily defined as a “four-wheeled motor vehicle,
designed for on-road or off-road use, having a seat or saddle upon which the
operator sits and a motor capable for producing not more than 50 horsepower.”
Mont. Code Ann. § 61-1-101-(53)(a). There is no dispute that the ATV at issue
here qualifies as a “quadricycle.”
8

-34-

of on-product instructions to “always wear a helmet” and warnings regarding the
risks of unhelmeted operation. Dkt. 43, at 7. To support this argument, Honda
relies on an Arizona statute providing, in part, that a defendant in a product
liability action shall not be liable if it proves that the plaintiff’s use of the product
“was contrary to any express and adequate instructions or warnings appearing on
or attached to the product....” Kavanaugh v. Kavanaugh, 641 P.2d 258, 262 (Ariz.
App. 1981) (citing A.R.S. § 12-683). But Montana has no such statute. The fact
that the Lutz court cited Kavanaugh in passing to make an unrelated point does not
somehow suggest that the Montana Supreme Court would usurp the role of
Montana’s legislature and adopt a rule set forth in an Arizona statute.
In Montana, the defense of misuse is not available if the manufacturer can
reasonably foresee that its product will be misused in a certain fashion.
Particularly where state law does not require the use of a helmet, an ATV
manufacturer can reasonably foresee that its product will be misused by drivers
who do not wear helmets. The fact that Honda included instructions and warnings
in an attempt to guard against that type of misuse does not make it unforeseeable.
If anything, the fact that Honda saw fit to include those instructions and warnings
underscores how foreseeable it is that a person might operate an ATV without a
helmet.
-35-

2.

Assumption of the Risk

Johnson also argues that Honda should not be allowed to introduce evidence
of helmet non-use in support of its assumption of the risk defense. To prevail on
an assumption of the risk defense, a defendant bears the burden of proving that
“[t]he user or consumer of the product discovered the defect or the defect was
open and obvious and the user or consumer unreasonably made use of the product
and was injured by it.” Mont. Code Ann. § 27-1-719(5)(a).
As applied in a strict liability case, the defense of assumption of the risk
“involves unreasonable exposure to the danger created by the defective product.”
Zahrte v. Sturm, Ruger & Co., Inc., 661 P.2d 17, 18 (Mont. 1983) (emphasis in
original). A “[p]laintiff must have subjective knowledge of the danger and then
voluntarily and unreasonably expose himself to that danger before assumption of
the risk will become operative in a strict liability case.” Zahrte, 661 P.2d at 18-19.
This assumption of the risk defense “must be applied in accordance with the
principles of comparative negligence set forth in 27-1-702.” Mont. Code Ann. §
27-1-719(6); Lutz, 884 P.2d at 460.
Focusing on the fact that assumption of the risk is analyzed under a
subjective standard that considers “what the particular plaintiff sees, knows,

-36-

understands, and appreciates,”9 Honda points out that Johnson has admitted to
having read and understood the warnings on the ATV. Dkt. 43-3, at 4-5. Honda
maintains that evidence that Johnson ignored those warnings and operated the
ATV without a helmet on the day of the accident is admissible because it
demonstrates that he voluntarily and unreasonably exposed himself to a known
danger.
But whether Johnson assumed the risk of riding an ATV without a helmet
on the day of the accident, thereby exposing himself to the known dangers
associated with doing so, is not the relevant inquiry. As the statutory language of
this affirmative defense reflects, the relevant inquiry is whether Johnson knew of
the alleged defect in the ATV – the improperly assembled axle – and unreasonably
made use of the ATV. Mont. Code Ann. § 27-1-719(5)(a). In other words, to
prevail on its assumption of the risk defense, Honda must show two things: (1)
that Johnson “discovered the defect or the defect was open and obvious,” and (2)
that Johnson “unreasonably made use of the product.” Lutz, 884 P.2d at 461.
Evidence that Johnson was not wearing a helmet at the time of the accident
has nothing to do with whether or not Johnson had discovered the alleged
manufacturing defect or whether that defect was open and obvious. Nor is it
9

Lutz, 884 P.2d at 461.
-37-

admissible to show that Johnson “unreasonably made use of” the ATV. As
discussed above, foreseeability is critical when it comes to determining whether a
consumer’s use of a product is reasonable or unreasonable. Lutz, 884 P.2d at 462
(noting that where plaintiff’s use of the product was foreseeable, “the second part
of the defense of assumption of the risk could not, as a matter of law, be proven
under the statute”). Because Honda could reasonably foresee that its ATVs would
be operated by unhelmeted operators, Honda cannot show that Johnson
“unreasonably made use of” the ATV by not wearing a helmet. Thus, evidence
that Johnson was not wearing a helmet on the day of the accident is not admissible
for purposes of establishing assumption of the risk in this product liability action.
3.

Causation

In a final attempt to defeat Johnson’s motion in limine, Honda takes the
position that evidence of his “helmet non-use is admissible on causation issues.”
Dkt. 43, at 9. Honda first argues that Johnson’s conduct in failing to wear a
helmet was a superseding cause of his injuries. Honda begins by citing Rost v.
C.F.& I. Steel Corp., 616 P.2d 383, 386 (Mont. 1980) for the proposition that “a
manufacturer is not liable where the product owner’s [conduct] is the superseding
cause of the plaintiff’s injuries.” The Rost court identified the product “owner’s
knowledge and ability to prevent the danger” as one factor that “may operate to
-38-

break the necessary causal chain.” Rost, 616 P.2d at 386.
Honda points to the fact that Johnson knew of the on-product warnings and
instructions but nonetheless operated the ATV without wearing a helmet. Honda’s
medical expert, Dr. Harry Smith, has indicated that if Johnson had been wearing a
helmet, the helmet “would have protected his head from impacts and would have
significantly mitigated if not completely eliminated any alleged brain injury that
he did receive by being unhelmeted.” Dkt. 43-1, at 9. Citing Dr. Smith’s opinion,
Honda maintains that Johnson’s conduct in failing to wear a helmet was a
superseding cause of his injuries, and argues that evidence of his conduct in that
regard is therefore admissible to show that the alleged product defect was not the
proximate cause of his injuries.
But the Rost case on which Honda relies is distinguishable. The plaintiffs in
that case were injured after a cable failed and the store elevator in which they were
riding fell. Rost, 616 P.2d at 385. The plaintiffs brought a strict product liability
action against the manufacturer of the elevator cable. Rost, 616 P.2d at 385. The
Montana Supreme Court concluded that the manufacturer’s failure to warn of the
dangerous use of its cable was not the proximate cause of the accident, because the
store owner’s conduct in failing to maintain and inspect the elevator was a
superseding intervening cause. Rost, 616 P.2d at 387.
-39-

Unlike Rost, the product owner in this case is the injured plaintiff. While
Rost recognized that a third-party product owner’s conduct may operate as a
superseding intervening cause to relieve the manufacturer of liability, it said
nothing about the propriety of introducing evidence of an injured plaintiff’s
comparative fault in a strict product liability action. Except as provided for by
Mont. Code Ann. § 27-1-719(5), evidence of a plaintiff’s contributory negligence
has no place in a strict product liability case like this one. See e.g., Lutz, 884 P.2d
at 461 (rejecting defendant’s “efforts to interject negligence concepts” into the
case); Bell v. Glock, 92 F.Supp.2d 1067,1070 (D. Mont. 2000) (citing Lutz and
concluding that “the defenses of intervening and superseding cause are not proper
defenses” in a strict product liability case). Honda’s superseding intervening
cause argument is nothing more than an improper attempt to inject comparative
negligence principles into this strict product liability action.
Even if it were permissible for Honda to argue that Johnson’s own conduct
was a superseding intervening cause, the argument fails on the merits. A
superseding intervening cause must be one that is not reasonably foreseeable to
the defendant. See e.g., Thayer v. Hicks, 793 P.2d 784, 795 (1990) (stating that
“[a] defendant’s liability for his wrongful act will not be severed by an intervening
cause if the intervening cause is one that the defendant might reasonably foresee
-40-

as probable or one that the defendant might reasonably anticipate under the
circumstances.”). Johnson’s conduct in not wearing a helmet simply did not play
any role in causing the accident. Even if it could be argued that it did, Johnson’s
conduct was foreseeable. As discussed above, an ATV manufacturer like Honda
can reasonably foresee that its product will be operated by unhelmeted drivers.
Because Johnson’s failure to wear a helmet was reasonably foreseeable and did
not cause the accident, it cannot be considered a superseding intervening cause.
Finally, Honda maintains that although Johnson claims to have suffered a
traumatic brain injury in the accident, “there is no record of any physical
manifestation of head injury, such as head lacerations or contusions.” Dkt. 43, at
10. Honda claims it should be allowed to argue that since Johnson was not
wearing a helmet, if he had in fact “suffered a traumatic head injury there should
have been have been some physical manifestation of a blunt head impact.” Dkt.
43, at 10-11.
Once again, this argument is an improper attempt on Honda’s part to make
contributory negligence a part of this case. As discussed above, the fact that
Johnson was not wearing a helmet is not admissible for purposes of an assumption
of the risk or product misuse defense. Those two defenses provide the only
vehicle by which a defendant in a strict product liability can introduce evidence of
-41-

a plaintiff’s contributory negligence. Mont. Code. Ann. § 27-1-719(5).
Honda is still free to defend against Johnson’s claim that he suffered a
traumatic head injury by pointing to the lack of any physical manifestation of a
blunt head impact. While Honda fears the jury might infer from the lack of visible
trauma that Johnson was wearing a helmet, it is equally possible that the jury
would expect Johnson to come forward and explain that the reason he did not have
any visible trauma was because he was wearing a helmet. When Johnson does not
do so, the jury could well infer that he was not in fact wearing a helmet.
Even if it were permissible for Honda to introduce negligence concepts into
this strict product liability case, evidence that Johnson was not wearing a helmet
would still be inadmissible. The Montana Supreme Court has held that where the
use of a helmet is not required by law, “the failure to wear a helmet ordinarily does
not constitute negligence.” Walden v. State, 818 P.2d 1190, 1196 (Mont. 1991).
In making that determination, the Walden court looked to the case of Kopischke v.
First Continental Corp., 610 P.2d 668 (Mont. 1980) for guidance.
Kopischke was decided before the state legislature passed a law requiring
the use of seatbelts in automobiles. Kopischke, 610 P.2d at 679. At issue in
Kopischke was whether the defendant could offer evidence that the plaintiff had
contributed to her own injuries and damages by not wearing a seatbelt. Kopischke,
-42-

610 P.2d at 679. In declining to recognize a common law duty to wear a seatbelt,
the Kopischke court reasoned “that to adopt a seat belt defense when the
legislature ha[d] failed to do so would be ill-advised.” Kopischke, 610 P.2d at
683. Drawing on Kopischke, the Walden court held that because the use of a
bicycle helmet was not required by law, evidence that the plaintiff was not
wearing a helmet at the time of the accident did not constitute negligence and “was
not admissible on the question of damages.” Walden, 818 P.2d at 1197.
Here, as in Walden, Johnson was not required by law to wear a helmet while
operating his ATV. Absent such a statutory requirement, Johnson’s failure to
wear a helmet did not constitute negligence. Under Walden and Kopischke,
evidence that Johnson was not wearing a helmet when he crashed would be
inadmissible for any purpose.
C.

Non-Disclosed Expert Opinions

Johnson moves the Court to enter an order in limine precluding Honda from
introducing testimony or evidence pertaining to expert opinions not properly
disclosed in accordance with the deadline established by the Court for the
disclosure of all expert testimony pertaining to the issue of liability. The
Scheduling Order entered in this matter on January 4, 2011 (Dkt. 15) established a
deadline of August 1, 2011, for the disclosure of expert testimony pertaining to the
-43-

issue of liability. By order entered August 1, 2011 (Dkt. 26) the referenced
deadline was extended to November 1, 2011, pursuant to agreement of the parties.
Again, on October 31, 2011, and pursuant to agreement of the parties, the Court
entered an order (Dkt. 33) granting Honda until November 11, 2011, to disclose its
liability expert opinions. By notice filed November 11, 2011 (Dkt. 34), Honda
advised the Court that it served Johnson with its “disclosure expert witnesses and
expert reports.”
Johnson does not dispute that he was served with Honda’s Fed. R. Civ. P.
26(a)(B) reports by the November 11, 2011, deadline. Rather, he appears to argue
that based on the deposition testimony of Honda’s expert witness Graeme Fowler,
the possibility exists that Honda may attempt to elicit undisclosed opinion
testimony from Dr. Fowler at the time of trial. Honda retorts, in substance, that
Dr. Fowler did not express any opinions at the time of his deposition that had not
been disclosed in his November 11, 2011, Rule 26(a)(2)(B) report. Dkt. 81.
As the parties undoubtedly understand, any opinion testimony that was not
disclosed in accordance with Rule 26(a)(2)(B) and the scheduling orders of the
Court will not be allowed at trial. Therefore, Johnson’s motion is denied as
unnecessary. Obviously, if either party attempts to present what the adverse party
can establish as undisclosed opinion testimony, or facts and data that were not
-44-

considered in forming a disclosed opinion, the Court will entertain a proper
objection.
D.

Attribution of Fault to Non-Parties

Johnson also moves to preclude Honda from presenting testimony or
evidence attributing liability to any non-party. Honda represents in response that
it does not anticipate attempting to attribute liability to any non-party. Dkt. 81, at
2. Based on Honda’s representation, this motion in limine is denied as moot.
V.

Conclusion
Accordingly,
IT IS ORDERED that Honda’s Motion for Summary Judgment and

Johnson’s Motions in Limine are GRANTED IN PART and DENIED IN PART as
set forth above.
DATED this 26th day of March, 2012
/s/ Jeremiah C. Lynch
Jeremiah C. Lynch
United States Magistrate Judge

PAGE 45

-45-