No. 12-24-36480
IN THE
SUPREME COURT OF CRAWFORD
SPRING TERM 2012
VORTEX RECREATIONAL SYSTEMS,
Petitioner,
v.
JENNIFER BATES,
Respondent.
On Writ of Certiorari to the
Crawford Court of Appeals for the
Fifth District Wells County
BRIEF FOR RESPONDENT
Team 18
Counsel for Respondent
QUESTIONS PRESENTED
I.
Whether the Affidavit of Mr. Sullivan, a rafting instructor on the Crawford River and the
Materials Testing Report of Mr. Robinson, a student intern at Vortex Recreational
Systems hired to test materials used to make the Splash Rower, have unreliable and
irrelevant bases such that the trial judge should have never admitted them as expert
evidence under Crawford Rule of Evidence 905 and the framework set forth in Daubert.
II.
Whether the Splash Rower contained manufacturing, design and warning defects when it
malfunctioned, when Vortex Recreational Systems knew of an alternative safer design,
and when the product’s warning failed to inform Ms. Bates of the foreseeable dangers of
using the Splash Rower for recreational purposes.
III.
Whether Vortex Recreational System’s manufacturing, design and warning defects
substantially caused Ms. Bates’ injuries when she kayaked down the Crawford River
using her brand new Splash Rower in a reasonably foreseeable manner.
i TABLE OF CONTENTS
QUESTIONS PRESENTED..................................................................................................i
TABLE OF CONTENTS.......................................................................................................ii
TABLE OF AUTHORITIES .................................................................................................iii
STATEMENT OF THE CASE ..............................................................................................1
SUMMARY OF THE ARGUMENT ....................................................................................5
ARGUMENT .........................................................................................................................6
I. NEITHER THE AFFIDAVIT NOR THE MATERIALS TESTING REPORT SHOULD BE
ADMITTED AS EXPERT EVIDENCE. ..............................................................................6
A. This Court Should Not Admit the Affidavit and the Materials Testing Report As
Admissible Expert Evidence Under Crawford Rule 905 and Daubert Because Both Lacks
Reliability and Relevancy. .........................................................................................7
1. Testimony must be reliable and rise above a subjective opinion...............7
2. Testimony must be relevant in order to assist the trier of fact in understanding
or resolving a fact at issue. .............................................................................8
B. Mr. Sullivan’s Affidavit Does Not Qualify as Expert Evidence
Because His Subjective Opinions Make It Unreliable and His Experience as a Rafting
Guide Are Irrelevant ..................................................................................................9
1. The Affidavit is unreliable expert evidence ...............................................9
2. The Affidavit is irrelevant expert evidence ...............................................11
C. Michael Robinson’s Materials Testing Report Does Not Qualify as Expert Evidence
Because He Lacks Experience with Materials Testing, He Used Flawed Methodology and
He Performed Inadequate Testing Procedures ...........................................................12
1. The Materials Testing Report is unreliable expert evidence .....................12
2. The Materials Testing Report is irrelevant expert evidence ......................14
D. In the Alternative, the Probative Value of Including Either the Affidavit or the
Materials Testing Report Does Not Substantially Outweigh the Prejudicial Effect ..15
ii II. MS. BATES SET FORTH SUFFICIENT EVIDENCE TO ESTABLISH
THAT THE SPLASH ROWER CONTAINED MANUFACTURING, DESIGN AND
WARNING DEFECTS ..........................................................................................................16
A. Ms. Bates Raises the Inference of a Manufacturing Defect with Circumstantial
Evidence of the Splash Rower’s Malfunction ...........................................................17
B. Ms. Bates Established a Design Defect by Showing that Vortex Had Available an
Economically and Technically Feasible Alternative Iron Splash Rower When It
Manufactured the Graphite Product that Later Malfunctioned ..................................19
1. Ms. Bates proved a RAD by introducing the Materials Testing Report ....19
a. The Materials Testing Report establishes a RAD ..........................20
b. Alternatively, Ms. Bates established a design defect under a two-prong
approach that applies a consumer expectations standard in circumstances
that warrant an inference of a product defect.....................................22
2. Vortex’s failure to implement the safer iron alternative makes the Splash
Rower not reasonably safe because the risks of death and great bodily harm
outweigh the cost of redesigning the product ................................................23
C. Vortex Failed to Provide Ms. Bates with Adequate Warnings and Instructions
Regarding the Splash Rower’s Limitations, and the Risks Associated with
Kayaking the Crawford River Are Nonobvious and Not Generally Known by Amputees
Like Ms. Bates ...........................................................................................................24
1. Vortex provided inadequate warnings and instructions .............................25
2. The risks of kayaking were nonobvious and not generally known to amputees
like Ms. Bates.................................................................................................26
III. MS. BATES SET FORTH SUFFICIENT EVIDENCE TO ESTABLISH THAT THE
SPLASH ROWER’S MANUFACTURING, DESIGN AND WARNING DEFECTS CAUSED
HER INJURIES .....................................................................................................................26
A. The Splash Rower’s Manufacturing and Design Defects Substantially Caused Ms.
Bates’ Injuries ............................................................................................................28
B. The Splash Rower’s Warning Defect Substantially Caused Ms. Bates’ Injuries..31
CONCLUSION ......................................................................................................................34
iii TABLE OF AUTHORITIES
United States Supreme Court Cases:
Anderson v. Liberty Lobby, Inc.,
477 U.S. 242 (1986) ...............................................................................................................16
Bose Corp. v. Consumers Union of U.S., Inc.,
466 U.S. 485 (1984) ...............................................................................................................16
Celotex Corp. v. Catrett,
477 U.S. 317 (1986) ...............................................................................................................16
Daubert v. Merrell Dow Pharmaceuticals, Inc.,
509 U.S. 579 (1993) ...............................................................................................................6-9, 15
General Electric Co. v. Joiner,
522 U.S. 136 (1997) ...............................................................................................................6, 7
Kumho Tire Co. v. Carmichael,
526 U.S. 137 (1999) ...............................................................................................................6-8
United States Court of Appeals Cases:
Jarvis v. Ford Motor Co.,
283 F.3d 33 (2d Cir. 2002).....................................................................................................18
McCorvey v. Baxter Healthcare Corp.,
298 F.3d 1253 (11th Cir. 2002) .............................................................................................18, 29
McMahon v. Bunn-O-Matic Corp.,
150 F.3d 651 (7th Cir. 1998) .................................................................................................26
Smith v. Louisville Ladder Co.,
237 F.3d 515 (5th Cir. 2001) .................................................................................................20
Walker v. Soo Line R. Co.,
208 F. 3d 581 (7th Cir. 2000) ................................................................................................8
Westberry v. Gislaved Gummi AB,
178 F.3d 257 (4th Cir. 1999) .................................................................................................6, 15
Wilson v. Volkswagen of Am., Inc.,
561 F.2d 494 (4th Cir.1977) ..................................................................................................6
iv United States District Court Cases:
Colon ex rel. Molina v. BIC USA, Inc.,
199 F.Supp2d 53 (2001) ........................................................................................................32
Derienzo v. Trek Bicycle Corp.,
376 F.Supp.2d 537 (2005) .....................................................................................................27, 32
Lemmermann v. Blue Cross Blue Shield of Wis.,
713 F. Supp. 2d 791 (E.D.Wis. 2010)....................................................................................7
Loeffel Steel Products, Inc. v. Delta Brands, Inc.,
387 F. Supp. 2d 794 (N.D.Ill. 2005) ......................................................................................8, 13
Maxwell v. Howmedica Osteonics Corp.,
713 F.Supp.2d 84 (N.D.N.Y. 2010) .......................................................................................19
Richetta v. Stanley Fastening Systems, L.P.
661 F.Supp.2d 500 (2009) .................................................................................................................29
Rudd v. General Motors Corp.,
127 F.Supp.2d 1330 (M.D. Ala. 2001) ..................................................................................18
Stringer v. National Football League,
749 F.Supp.2d 680 (S.D. Ohio 2009) ....................................................................................31
Whitmire v. Terex Telelect, Inc.,
390 F. Supp. 2d 540 (E.D. Tex. 2005) ...................................................................................26
State Supreme Court Cases
Branham v. Ford Motor Co.,
701 S.E.2d 5 (S.C. 2010) .......................................................................................................21
Camacho v. Honda Motor Co.,
741 P.2d 1240 (Colo. 1987) ...................................................................................................24
Dart v. Wiebe Mfg.,
709 P.2d 876 (Ariz. 1985)......................................................................................................20
Ford Motor Co. v. Ridgway,
135 S.W.3d 598 (2004) ..........................................................................................................29
GMC v. Jernigan,
883 So.2d 646 (Ala. 2003) .....................................................................................................20
v Green v. General Motors Corp.,
709 A.2d 205 (N.J. 1998).......................................................................................................21
Hernandez v. Tokai Corp.,
2 S.W.3d 251 (1999) ..............................................................................................................27
Kallio v. Ford Motor Co.,
407 N.W.2d 92 (Minn. 1987)
Myrlak v. Port Authority of New York and New Jersey,
723 A.2d 45 (N.J. 1999).........................................................................................................17
Parish v. Jumpking, Inc.,
719 N.W.2d 540 (Iowa 2006) ................................................................................................25
Potter v. Chicago Pneumatic Tool Co.,
694 A.2d 1319 (Conn. 1997) .................................................................................................20
Sauder Custom Fabrication, Inc. v. Boyd,
967 S.W.2d 349 (Tex. 1998)..................................................................................................26
Shaun T. Mian Corp. v. Hewlett Packard Co.,
237 S.W.3d 851 (Tex. 2007)..................................................................................................18, 28
Soule v. General Motors Corp.,
882 P.2d 298 (Cal. 1994) .......................................................................................................22
Speller v. Sears Roebuck and Co.,
790 N.E.2d 252 (2003)...........................................................................................................27
Uniroyal Goodrich Tire Co. v. Martinez,
977 S.W.2d 328 (Tex. 1998)..................................................................................................21
State Appellate Court Cases:
Atkins v. Gen. Motors Corp.,
132 Ohio App.3d 556 (1999) .................................................................................................28
Barnard v. Saturn Corp., a Div. of General Motors Corp.,
790 N.E.2d 1023 (Ind. App. Ct. 2003)...................................................................................18
Cardinal Health 301, Inc. v. Tyco Electronics Corp.,
169 Cal.App.4th 116 (2009) ..................................................................................................27
Dunne v. Wal-Mart Stores, Inc.,
679 So.2d 1034 (Ct. App. La. 1996) ......................................................................................25
vi McCabe v. American Honda Motor Corp.,
100 Cal. App. 4th 1111 (2002) ..............................................................................................22
Perez v. VAS S.p.A.,
188 Cal.App.4th 658, 680 (2010) ..........................................................................................27, 29
Rife v. Hitachi Const. Machinery Co., Ltd.
363 S.C. 209 (2005) ...............................................................................................................27
Voss v. Black & Decker Mfg. Co.,
450 N.E.2d 204 (N.Y. 1983) ..................................................................................................20
State of Crawford Cases:
Bates v. Vortex Recreational Systems,
No. 10-CV-9568 (Craw. Com. Pl. 2010) ...............................................................................1
Bates v. Vortex Recreational Systems,
No. 45-CA-90180 (Craw. Ct. App. 2011) .............................................................................1
Bentley v. Autumn Creek, Inc.,
435 Crawford 220 (2009).......................................................................................................17, 27
Crawford Rules and Statutes:
Craw.R.Evid. 98 .................................................................................................................................16
Craw. R.C. § 5255..............................................................................................................................16
Craw. Reg. § 895.52 ..........................................................................................................................30
Restatement (Third) of Torts: Prods. Liab. (1998)
§ 2.......................................................................................................................................................passim
§ 3.......................................................................................................................................................17, 18, 28
§ 15.....................................................................................................................................................26, 27
§ 17.....................................................................................................................................................27
Other Authorities:
Jeff Bennett,
The Complete Whitewater Rafter,
vii (Jonathan Eaton et al. eds., 1996) ..........................................................................................10, 11-12
Ralf Buckley,
Adventure Tourism 45 (2006) ................................................................................................11
Philip H. Corboy,
The Not-So-Quiet Revolution: Rebuilding Barriers to Jury Trial in the Proposed
Restatement (Third) of Torts: Products Liability,
61 Tenn.L.Rev. 1043 (1994) ..................................................................................................20
Jason A. Henderson, Jr. & Aaron D. Twerski,
Achieving Consensus on Defective Product Design,
83 Cornell L. Rev. 867 (1998) ...............................................................................................27
Jason A. Henderson, Jr. & Aaron D. Twerski,
Manufacturer’s Liability for Defective Product Designs: The Triumph of Risk-Utility,
74 Brook. L. Rev. 1061 (2009) .............................................................................................20, 22
Note,
Just What You’d Expect: Professor Henderson’s Redesign of Products Liability,
111 Harv. L. Rev. 2366 (1998) ..............................................................................................20
David G. Owen,
Manufacturing Defects,
53 S.C. L. Rev. 851 (2002) ....................................................................................................19
Victor E. Schwartz & Cary Silverman,
The Draining of Daubert and the Recidivism of Junk Science in Federal and State
Courts,
35 Hofstra L. Rev. 217 (2006) ...............................................................................................6
Richard T. Stilwell,
Kumho Tire: The Battle of the Experts Continues,
19 Rev. Litig. 193 (2000).......................................................................................................15
John W. Wade,
On the Nature of Strict Tort Liability for Products,
44 Miss. L.J. 825 (1973) ........................................................................................................23
Jeff C. Young,
Running the Rapids: White-Water Rafting, Canoeing, and Kayaking,
(Megan M. Gunderson et al. eds., 2011)................................................................................11
Janet A. Zeller,
Canoeing and Kayaking for People With Disabilities
(Laurie Guillion et al. eds., (2d ed. 2009) ..........................................................................................10
viii OPINIONS BELOW
The decision of the Wells County Common Pleas Court appears in Bates v. Vortex
Recreational Systems, No. 10-CV-9568 (Craw. Com. Pl. 2010). The decision of the Crawford
Court of Appeals for the Fifth District of Wells County appears in Bates v. Vortex Recreational
Systems, No. 45-CA-90180 (Craw. Ct. App. 2011).
STATEMENT OF CASE
I.
Statement of Facts
Plaintiff, Jennifer Bates, is a twenty-four year old woman who resides in the State of
Crawford. (R. at 4.) In 2004, Ms. Bates lost her left forearm in a car collision resulting in her
use of a prosthetic arm. (R. at 5.)
Vortex Recreational Systems (“Vortex”) manufactures and sells recreational prosthetic
attachments, including the Splash Rower. (R. at 2.) The Splash Rower attaches to any standard
prosthetic limb and allows an amputee the functionality of a natural limb to grasp a paddle. (R.
at 2.)
The Splash Rower attachment consists of two interlocking parts. (R. at 3.) Part A
latches onto the shaft of the paddle like a clinched fist, and Part B simulates an elbow to allow
for full range of motion. (R. at 3.) Part B connects the user’s prosthetic limb to Part A by
securing Part A’s pegs into Part B’s peg holes. (R. at 3.) The other end of Part B screws onto
any standard prosthetic limb. (R. at 3.) Vortex considered both graphite and iron as materials for
its product, but ultimately chose to manufacture the Splash Rower almost entirely out of
graphite. (R. at 3.) Also, graphite has greater flexibility and sold for twenty percent less than
iron. (R. at 3.)
In October of 2009, Vortex worried about the strength of graphite. (R. at. 3.) It hired
Michael Robinson, a student intern studying combat engineering at Crawford Tech University, to
1 conduct materials testing on the Splash Rower. (R. at 4.) Dr. Gregory Scott, an engineering
professor at Crawford Tech University, supervised Mr. Robinson’s work and met him on four
occasions throughout the four-week testing period, where Mr. Robinson worked for a total of
sixty hours. (R. at 3.)
Mr. Robinson tested sixty Splash Rowers, thirty made of iron and thirty made of graphite,
in a motorized lap pool set at the following speeds: three mph, seven mph, and ten mph. (R. at
4.) He tested each Splash Rower for twenty minutes, ten minutes with the water flowing against
the paddle and ten minutes with the water flowing behind the paddle. (R. at 4.) At each speed,
all thirty iron Splash Rowers remained attached to the paddle with no physical change. (R. at
4.) At the highest speed, two of the thirty graphite Splash Rowers slightly bent. (R. at 4.) None
of the attachments snapped during the testing. (R. at 4.) Vortex chose graphite as the material
for the Splash Rower based on Mr. Robinson’s testing. (R. at 4.) In December of 2009, Vortex
began manufacturing and selling the graphite Splash Rower. (R. at 4.)
In June of 2010, Ms. Bates purchased a Vortex Splash Rower to enjoy water sports
again. (R. at 5.) Vortex packaged the Splash Rower in camouflage and marketed its product to
veterans. (R. at 5.) The attachment came with a brochure and a slip of paper with the words
“FOR RECREATIONAL USE ONLY” written in bold red letters. (R. at 5.) After receiving the
Splash Rower, Ms. Bates went to a local sporting goods store and bought a new one-person
kayak, a double-ended paddle and a life jacket. (R. at 5.)
On June 22, 2010, Ms. Bates took her equipment and went on a twenty-mile kayaking
trip down the Crawford River. (R. at 5.) Although June had been one of the rainiest months in
Crawford, the weather that morning was clear and sunny. (R. at 5.) As Ms. Bates’ kayak
approached a narrow passage, the river began to pick up speed and she struggled to maneuver
2 her kayak around the exposed rocks and floating branches. (R. at 5.) She tried to slow her kayak
by dunking her paddle deep into the water and alternating from side to side. (R. at. 5.)
Suddenly, the Splash Rower snapped and detached, causing Ms. Bates to lose her
paddle. (R. at. 5.) Her kayak spun around vigorously and capsized. (R. at 5.) The river pulled
Ms. Bates underwater and smashed her against a cluster of rocks. (R. at. 5.) Eventually, her life
jacket floated her to the surface, but once above the water, she could not move her legs to swim
to safety. (R. at 5.) She floated a mile downstream before a fisherman pulled her from the water
and took her to the hospital. (R. at 6.) Ms. Bates suffered a severe spinal injury from the
accident causing permanent paralysis from the waist down. (R. at. 6.)
II. Procedural History
Ms. Bates filed a complaint against Vortex in the Wells County Common Pleas
Court. Ms. Bates alleged products liability claims against Vortex for manufacturing, design and
warning defects of its Splash Rower. (R. at 6.)
On September 28, 2010, the Wells County Common Pleas Court excluded Mr.
Robinson’s Materials Testing Report as expert evidence, admitted Mr. Sullivan’s Affidavit as
expert testimony, and granted summary judgment in favor of Vortex on Ms. Bates’
manufacturing, design and warning defect claims. (R. at 8, 11.) Ms. Bates filed a timely notice
of appeal. (R. at 12).
On May 25, 2011, the Crawford Court of Appeals for the Fifth District of Wells County
affirmed in part, reversed in part, and remanded the judgment of the Wells County Common
Pleas Court. (R. at 12). The Crawford Court of Appeals affirmed the inadmissibility of Mr.
Robinson’s Materials Testing Report, reversed the trial court’s decision to admit Mr. Sullivan’s
Affidavit, and reversed the trial court’s decision to grant summary judgment in favor of Vortex
3 on Ms. Bates’ manufacturing, design and warning defect claims. (R. at 13-15.) The Supreme
Court of Crawford granted Vortex’s petition for writ of certiorari. (R. at 16.)
4 SUMMARY OF ARGUMENT
The Wells County Common Pleas Court improperly admitted Mr. Sullivan’s Affidavit as
expert evidence because the Affidavit contains his subjective opinions as a rafting guide and
likewise, is irrelevant in a case involving a kayaking accident. In contrast, the Wells County
Common Pleas Court properly excluded Mr. Robinson’s Materials Testing Report because of its
unreliability and irrelevancy based on his lack of experience, inadequate testing, and flawed
methodology.
Furthermore, Vortex is liable for Ms. Bates’ injuries for the following reasons. Ms. Bates
presents sufficient evidence to establish an inference of the Splash Rower’s manufacturing
defect. Also, Ms. Bates shows that Vortex had available a safer alternative design to the
unreasonably dangerous graphite Splash Rower. Alternatively, Ms. Bates established design
defect under a limited two-prong approach that applies a consumer expectation standard to
circumstances that give rise to an inference of product defect. Finally, Vortex failed to provide
Ms. Bates with adequate warning of the foreseeable dangers posed by the Splash Rower.
Additionally, Ms. Bates established an inference of a casual connection between her
injuries and the Splash Rower’s manufacturing defect. The Splash Rower’s new condition and
Ms. Bates’ normal foreseeable use links the defect to the injury. Vortex defectively designed the
Splash Rower because Ms. Bates’ reasonably used it in a foreseeable manner. Lastly, Vortex did
not provide an adequate warning label and thus Ms. Bates could not assess the potential risks
involved with using the Splash Rower.
5 ARGUMENT
I.
NEITHER THE AFFIDAVIT NOR THE MATERIALS TESTING REPORT
SHOULD BE ADMITTED AS EXPERT EVIDENCE.
The Wells County Common Pleas Court should not have admitted the Affidavit as expert
evidence. Trial court decisions receive a deferential “abuse of discretion” standard of review for
the admission or exclusion of expert opinion testimony challenged under Daubert v. Merrell
Dow Pharms., Inc., 509 U.S. 579 (1993). See Gen. Elec. Co. v. Joiner, 522 U.S. 136, 141 (1997)
(holding abuse of discretion as the appropriate standard to review a district court’s evidentiary
rulings). The appellate court gives deference to the trial court’s decision and assesses the trial
judge’s special role as the gatekeeper to ensure reliability and relevance of scientific, technical or
skill-based expert testimony. Kumho Tire Co. v. Carmichael, 526 U.S. 137, 147 (1999).
Under an abuse of discretion standard, a court must review the district court’s reasoning
and reverse if the district court erred after weighing the relevant factors in reaching its
conclusions. Westberry v. Gislaved Gummi AB, 178 F.3d 257, 261 (4th Cir. 1999) (citing Wilson
v. Volkswagen of Am., 561 F.2d 494, 503 (4th Cir. 1977)). In deciding whether a trial court
abused its discretion, many appellate courts apply abuse of discretion “with teeth” and closely
examine the trial court’s determining factors—“whether it omitted a key factor, improperly
applied a factor, or inappropriately balanced the applied factors.” Victor E. Schwartz & Cary
Silverman, The Draining of Daubert and the Recidivism of Junk Science in Federal and State
Courts, 35 Hofstra L. Rev. 217, 265 (2006).
In the present case, the Wells County Common Pleas Court abused its discretion when it
improperly assessed the proffered expert evidence before choosing to admit it.
6 A.
This Court Should Not Admit the Affidavit and the Materials Testing Report
As Admissible Expert Evidence Under Crawford Rule 905 and Daubert
Because Both Lacks Reliability and Relevancy.
Under Crawford Rule 905 and Daubert, both the Affidavit and the Materials Testing
Report are inadmissible expert evidence. The Crawford Rules of Evidence and the framework in
Daubert confirm that an expert’s opinions must rest on a relevant and reliable foundation based
on factors appropriate to the expert’s particular discipline. Daubert, 509 U.S. at 589;
Craw.R.Evid. 905(b). Before a trial court admits expert evidence, Daubert requires the trial
judge to act as gatekeeper. Id. Although Joiner reiterated the flexibility that trial courts have as
gatekeepers, an expert’s conclusions must reliably connect to the underlying evidence and
analytical data used by the expert. Gen. Elec. Co., 522 U.S. at 146. Similarly, Kumho Tire Co.
reaffirmed that courts must guarantee that the expert testimony “employs in the courtroom the
same level of intellectual rigor that characterizes the practice of an expert in the relevant
field.” Kumho Tire Co., 526 U.S. at 152.
The trial court, in an initial determination as gatekeeper of proffered testimony, must
ensure (1) the reliability of the evidence and that it concerns scientific, technical, or other
specialized knowledge and (2) the relevancy of the evidence in order to assist the trier of fact in
understanding or resolving a fact at issue. Craw.R.Evid. 905(e). The proponent of the expert
testimony bears the burden of showing the reliability and relevancy of the evidence.
Lemmermann v. Blue Cross Blue Shield, 713 F. Supp. 2d 791, 797 (E.D. Wis. 2010).
1.
Testimony must be reliable and rise above a subjective opinion.
Under the first prong, expert evidence must be reliable. Regardless of whether the
proffered testimony concerns scientific, technical, or other specialized knowledge, it must have a
reliable basis in the knowledge and experience of the appropriate discipline. Daubert, 509 U.S. at
7 592. See Kumho Tire Co., 526 U.S. at 149; see also Walker v. Soo Line R.R., 208 F.3d 581, 586
(7th Cir. 2000). Also, evidence becomes reliable only when it rises above subjective belief or
unsupported speculation. Daubert, 509 U.S. at 590. Additionally, Daubert provided a nonexhaustive list of “guideposts” for the court to consider when analyzing the reliability of
proffered testimony: (1) whether the scientific theory can be or has been tested; (2) whether the
theory has been subjected to peer review and publication; (3) whether the theory has a known
potential error rate; and (4) whether the theory has been generally accepted in the relevant
scientific, technical, or professional community. Id. at 593-94. For scientific testimony, a court
will find expert testimony unreliable when an expert draws conclusions from data based on
flawed methodologies. Loeffel Steel Prods. v. Delta Brands, Inc., 387 F. Supp. 2d 794, 817
(N.D. Ill. 2005). Likewise, a court will find non-scientific expert testimony unreliable when the
trial court applies the Daubert factors and, in reaching its decision, finds no reliable basis for the
proffered testimony. Kumho Tire Co., 526 U.S. at 152.
2.
Testimony must be relevant in order to assist the trier of fact in
understanding or resolving a fact at issue.
The second prong requires that the expert testimony is relevant. A court will find
evidence relevant when it has “any tendency to make the existence of any fact that is of
consequence to the determination of the action more probable or less probable than it would be
without the evidence.” Daubert, 509 U.S. at 587; Craw.R.Evid. 602. Expert evidence must have
a significant relationship to the issues in the case with a reliable foundation as its basis or else the
trial judge should deem it as irrelevant and exclude it. Id. at 590.
Based on these guiding principles, the Wells County Common Pleas Court abused its
discretion by admitting Mr. Sullivan’s Affidavit. The Court should have found Mr. Sullivan’s
Affidavit unreliable because it contains his subjective opinions as a rafting guide and likewise, is
8 irrelevant in a case involving a kayaking accident. In contrast, the Wells County Common Pleas
Court properly excluded Mr. Robinson’s Materials Testing Report because of its unreliability
and irrelevancy based on his lack of experience, inadequate testing, and flawed methodology.
Accordingly, this Court should affirm the Appellate Court’s decision regarding the
inadmissibility of Vortex’s proffered expert evidence.
B.
Mr. Sullivan’s Affidavit Does Not Qualify as Expert Evidence Because His
Subjective Opinions Make It Unreliable and His Experiences as a Rafting
Guide Are Irrelevant.
The Wells County Common Pleas Court abused its discretion for two reasons when it
improperly admitted Mr. Sullivan’s Affidavit as expert evidence. First, Mr. Sullivan’s subjective
opinions make his Affidavit unreliable. Second, the Wells County Common Pleas Court did not
even consider the second prong of admissible expert evidence—the irrelevancy of Mr. Sullivan’s
Affidavit. Mr. Sullivan’s observations as a rafting guide on the Crawford River do not translate
into relevant evidence for an accident involving a kayaker.
1.
The Affidavit is unreliable expert evidence.
Mr. Sullivan’s Affidavit contains unreliable information. Reliable expert testimony must
rise above a subjective opinion. Id. at 589-90. In order to discover the subjectivity of an
opinion, Daubert provided the four guideposts for reliable expert testimony. Id. at 59394. Applying the Daubert factors to Mr. Sullivan’s Affidavit, this Court should find that the
Wells County Common Pleas Court abused its discretion when it admitted Mr. Sullivan’s
Affidavit as expert evidence.
In the present case, besides his own conclusions, no other evidence exists to support Mr.
Sullivan’s Affidavit. In other words, no relevant publications or peer review articles exist on Mr.
Sullivan’s theories about how the Crawford River’s conditions—its speed, challenges, and
9 physical health requirements—would affect kayaking on the Crawford River. Thus, this Court
should not reasonably view Mr. Sullivan’s conclusions as anything more than his own subjective
opinions.
For example, one conclusion in his Affidavit stated he would “strongly discourage any
rafter with a health problem or in a limited physical condition from attempting to raft in the
Crawford River.” (R. at 21.) Yet, under the Daubert factors this conclusion contains subjective
opinions making it unreliable. Nothing indicates Mr. Sullivan has any scientific expertise or
knowledge to assert the appropriate physical strength or physical condition necessary to raft the
Crawford River. For Mr. Sullivan, as a rafter, the mutually supportive group structure of rafting
makes the physical condition of a fellow rafter important. Jeff Bennett, The Complete
Whitewater Rafter 178 (Jonathan Eaton et al. eds., 1996). However, for Ms. Bates, she kayaked
alone and relied solely on her own physical condition. In actuality, “the freedom” offered by
kayaking can downplay “the barriers presented by disabilities.” Janet A. Zeller, Canoeing and
Kayaking for People With Disabilities 2 (Laurie Guillion et al. eds., 2d ed. 2009).
While Mr. Sullivan does have thirty years of experience rafting on the Crawford River, fifteen as
a rafting guide, rafting experience does not translate into kayaking experience. The amount of
time that Mr. Sullivan spent on the Crawford River as a rafter does not then create reliable expert
testimony in this case involving a kayak.
Therefore, the Wells County Common Pleas Court should not have admitted the
unreliable Affidavit.
10 2.
The Affidavit is irrelevant expert evidence.
Similarly, Mr. Sullivan’s Affidavit includes irrelevant content not related to this case.
The Wells County Common Pleas Court erred when it never assessed the relevancy of the
Affidavit and failed to properly act as gatekeeper for proffered expert evidence.
The Affidavit’s irrelevancy resides in the following reasons. First, as seen above, the
Affidavit does not have a reliable foundation as its basis under Daubert because of Mr.
Sullivan’s deficiencies in the appropriate field of kayaking—he is a rafting instructor, not a
kayaker. Second, the Affidavit does not make it more probable or less probable that the Splash
Rower had manufacturing, design or warning defects or substantially caused Ms. Bates’ injuries
because of the numerous differences between rafting and kayaking listed below.
For example, Mr. Sullivan most likely did not travel through the same narrow
passageway where Ms. Bates lost control of her kayak. Compared to the wide design of a raft,
the slender design of a kayak allows it to easily travel through narrow passageways. Jeff
Bennett, The Complete Whitewater Rafter 178 (Jonathan Eaton et al. eds., 1996). Some people
even use kayaks as a safety procedure to investigate rapids and signal the safest route for the
rafts. Ralf Buckley, Adventure Tourism 45 (2006). Second, usually only one or two people ride
in a kayak compared to a group of people that ride in a raft. Jeff C. Young, Running the Rapids:
White-Water Rafting, Canoeing, and Kayaking 13 (Megan M. Gunderson et al. eds., 2011). An
increase in body weight changes the speed of a raft, which may affect how fast a rafter thinks the
river flows. Rafts also have different buoyancy than kayaks. Jeff Bennett, The Complete
Whitewater Rafter 172 (Jonathan Eaton et al. eds., 1996). Third, a river’s speed can change
every day due to an increase in rain and obstacles, like rocks and branches that create eddies, or
swirling of water. Jeff Bennett, The Complete Whitewater Rafter 60-61 (Jonathan Eaton et al.
11 eds., 1996). Finally, hydraulics, or holes in the riverbed, can grab hold of a kayaker and cause
them to lose control, whereas the weight of the raft may allow it to punch straight through the
same hydraulic. Jeff Bennett, The Complete Whitewater Rafter 96 (Jonathan Eaton et al. eds.,
1996). Due to these differences between kayaks and rafts, Mr. Sullivan’s Affidavit does not
make it more probable or less probable that the Splash Rower caused Ms. Bates’ injuries.
Therefore, the Wells County Common Pleas Court improperly admitted the Affidavit as relevant
expert evidence.
In conclusion, the Wells County Common Pleas Court abused its discretion for two
reasons when it incorrectly ruled the Affidavit as admissible expert evidence. Mr. Sullivan’s
Affidavit became unreliable when he asserted his own subjective opinions. Concomitantly, Mr.
Sullivan’s rafting experience is irrelevant in a case involving a kayaker. Vortex fails to meet its
burden of proving the relevancy and reliability of Mr. Sullivan’s Affidavit.
C.
Michael Robinson’s Materials Testing Report Does Not Qualify as Expert
Evidence Because He Lacks Experience with Materials Testing, He Used
Flawed Methodology and He Performed Inadequate Testing Procedures.
Moreover, the Wells County Common Pleas Court properly excluded Mr. Robinson’s
Materials Testing Report as expert evidence. The Report is both unreliable and irrelevant
because of his lack of experience with materials testing, flawed methodology and inadequate
testing procedures.
1.
The Materials Testing Report is unreliable expert evidence.
Mr. Robinson’s lack of knowledge and experience in the field of materials testing makes
his Materials Testing Report unreliable. Mr. Robinson did not yet earn his undergraduate college
degree in combat engineering when Vortex hired him to test materials for the Splash Rower. (R.
at 4.) Under the Daubert factors for reliability, nothing in the record indicates that an engineer
12 tested Mr. Robinson’s theory of appropriate materials for the Splash Rower. Also, no relevant
publications or peer review articles were written about Mr. Robinson’s Report, and no one in the
field of materials testing generally accepted his findings.
Similarly, Mr. Robinson’s inadequate testing procedure and methodology also makes his
Materials Testing Report unreliable. For scientific testimony, like a Materials Testing Report,
unreliable conclusions derive from flawed methodologies. Loeffel Steel Prods., 387 F. Supp. 2d
at 817. A judge must consider the scientific validation of a methodology and determine if the
methodology applies appropriately to the facts of the case. Id.
In this case, Mr. Robinson wrote his Materials Testing Report based on unreliable, flawed
methodology. Mr. Robinson initially concluded that in addition to graphite, Vortex could also
produce the Splash Rower from iron. (R. at 3.) However, based on Mr. Robinson’s testing and
the cheaper cost of graphite, Vortex chose graphite as a more suitable material to use. (R. at 3.)
Additionally, Mr. Robinson based his Report on inadequate testing procedures. First, Mr.
Robinson spent only twenty-five out of his sixty work hours actually testing the materials. (R. at
4.) He tested sixty Splash Rowers—thirty made of iron and thirty made of graphite—for twenty
minutes each. (R. at 4.) Second, Mr. Robinson only tested how the Splash Rower would
perform in a maximum ten mph current. Third, he also never tested how heavy rain, narrow
areas of a river or obstacles like rocks and logs would affect the Splash Rower. Finally, Mr.
Robinson never actually tested the Splash Rower in a real river or with an actual person who
used prosthetic recreational devices. Thus, in addition to his lack of experience, Mr. Robinson’s
inadequate testing of the Splash Rower makes his Report unreliable.
Moreover, Dr. Scott’s supervision does not convert Mr. Robinson’s Materials Testing
Report into reliable expert evidence. Mr. Robinson alone generated the conclusions in his
13 Materials Testing Report. Dr. Scott supervised Mr. Robinson’s testing process of materials, but
only met with him four times over the four-week period. Similar to the decision of the Loeffel
court, this Court should not admit scientific conclusions as expert evidence based on unreliable
or speculative information. Here, Dr. Scott specializes in chemical engineering and like Mr.
Robinson, also lacks any materials testing experience. (R. at 4.) Dr. Scott provided only cursory
supervision of Mr. Robinson during his internship at Vortex. (R. at 4.) Therefore, like in
Loeffel, Dr. Scott’s supervision does not make Mr. Robinson’s Materials Testing Report reliable.
For the aforementioned reasons, the Wells County Common Pleas Court did not abuse its
discretion in excluding the unreliable Materials Testing Report because of Mr. Robinson’s lack
of experience in the materials testing field, his flawed methodology and inadequate testing
procedures.
2.
The Materials Testing Report is irrelevant expert evidence.
In addition, this Court should not admit the Materials Testing Report as relevant expert
evidence because Mr. Robinson did not base his Report on a reliable foundation. As stated
above, Mr. Robinson lacked experience in the materials testing field, used flawed methodology
and performed inadequate testing on the Splash Rower. Consequently, this Court should only
choose to admit the Report to show Vortex’s awareness of a reasonable alternative iron design to
the graphite Splash Rower. However, this can be done by admitting the Report as non-expert lay
testimony. Like the Wells County Common Pleas Court held, Mr. Robinson’s Report “amounts
to no more than a well done student project.” (R. at 7.) As a result, Vortex fails to meet their
burden of proving the reliability and the relevancy of its proffered expert evidence.
14 D.
In the Alternative, the Probative Value of Including Either the Affidavit or
the Materials Testing Report Does Not Substantially Outweigh the
Prejudicial Effect.
In the alternative, the probative value of the Affidavit or Materials Testing Report does
not substantially outweigh the prejudicial effect that the evidence would have on a jury. The
difficulty courts have evaluating proffered expert testimony makes expert evidence both
powerful and misleading. Daubert, 509 U.S. at 595; Richard T. Stilwell, Kumho Tire: The Battle
of the Experts Continues, 19 Rev. Litig. 193, 194 (2000). As a result, a judge must weigh the
possible danger of unfair prejudice over the evidence’s probative uses. Daubert, 509 U.S. at
595; see Westberry, 178 F.3d at 261 (reminding the court that the “potential persuasiveness of
expert testimony could confuse the jury rather than enlighten them”).
If the Court admits either the Affidavit or Materials Testing Report as expert evidence, it
will have a prejudicial effect on this case. The prejudicial effect of irrelevant and unreliable
evidence certainly outweighs any probative value of either item of evidence. The reason why the
trial judge needs to properly act as the gatekeeper and evaluate both reliability and relevancy is
because it helps to alleviate the risk of unfair prejudice. Daubert, 509 U.S. at 595. Nonetheless,
in the present case, the Wells County Common Pleas Court abused its discretion when it never
assessed the relevancy of Mr. Sullivan’s Affidavit before admitting it as expert evidence.
Even if this Court chooses to admit either the Affidavit or the Materials Testing Report as
expert evidence and believes their probative value is strong enough for the jury to hear, the court
should at least reassess Ms. Bates’ claims. In a minimum, her case deserves the opportunity for
reconsideration in front of a competent and fair trier of fact. This opportunity would finally
determine the validity of the Affidavit and Materials Testing Report under a correct analysis of
excluding expert evidence. For these reasons, this Court should affirm the judgment of the court
15 of appeals and reverse the lowest court’s decision to admit the Affidavit and affirm its decision
to exclude the Materials Testing Report.
II.
MS. BATES SET FORTH SUFFICIENT EVIDENCE TO ESTABLISH THAT
THE SPLASH ROWER CONTAINED MANUFACTURING, DESIGN AND
WARNING DEFECTS.
Ms. Bates set forth disputed material facts that preclude summary judgment on her claims
for manufacturing, design and warning defects. Courts review summary judgment under a de
novo standard of review. Craw. R. Evid. 98. Under de novo, reviewing courts make an original
appraisal of all evidence and afford no deference to lower decisions. Bose Corp. v. Consumers
Union of U.S., Inc., 466 U.S. 485, 514 n.31 (1984). Courts should grant summary judgment only
when no genuine issue of material fact exists, and when the nonmoving party is entitled to
judgment as a matter of law. Craw. R. Civ. Proc. 56; Celotex Corp. v. Catrett, 477 U.S. 317, 323
(1986). In deciding summary judgment, a court must not ask whether the evidence unmistakably
favors one side, but whether a reasonable jury could find for the plaintiff. Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 252 (1986).
In the present case, Ms. Bates brought suit under the Crawford Product Liability Act (the
“Act”), which follows the Restatement (Third) of Torts: Products Liability (1998)
(“Restatement”). (R. at 8.) The Restatement provides three types of product defects that give
rise to manufacturer liability: manufacturing, design, and warning. Restatement (Third) of Torts:
Prods. Liab. § 2 (1998). Here, Ms. Bates set forth sufficient evidence to warrant an inference
that Vortex’s Splash Rower contained a manufacturing defect. Furthermore, Ms. Bates
established design defect by proving that Vortex had available a safer alternative Iron Splash
Rower when it distributed her unreasonably dangerous graphite product. Alternatively, Ms.
Bates established design defect under a risk-utilities balancing test or a consumer expectations
16 standard to circumstances that give rise to an inference of product defect. Lastly, Vortex failed
to provide Ms. Bates with adequate warning of the foreseeable dangers posed by the Splash
Rower.
A.
Ms. Bates Raises the Inference of a Manufacturing Defect with
Circumstantial Evidence of the Splash Rower’s Malfunction.
Ms. Bates presented sufficient circumstantial evidence to warrant an inference that the
product contained a manufacturing defect. A product contains a manufacturing defect when it
departs from its intended design despite the exercise of reasonable preparation and
marketing. Id. (a). Thus, the Restatement imposes strict liability for manufacturing defects. Id.
At § 2 cmt. A. Ordinarily, an injured party must prove that a product contained a particular
manufacturing defect while in the manufacturer’s control. Id. § 2 cmt. C. However, the
Restatement does not require proof of a specific defect where a plaintiff suffers an injury of the
kind that typically results from product malfunction, and not the result of other causes. Id. § 3.
Likewise, the Crawford Supreme Court permits an inference of a manufacturing defect when
supported by sufficient circumstantial evidence, or evidence negating other causes of the
product’s failure. Bentley v. Autumn Creek, Inc., 435 Crawford 220 (2009). In fact, common
sense dictates that some injuries do not occur absent some product malfunction, and fairness
requires an inference of defect. Myrlak v. Port Auth., 723 A.2d 45, 52 (N.J. 1999).
Ms. Bates suffered the kind of harm that ordinarily occurs when a prosthetic attachment
malfunctions. Vortex designed the Splash Rower to latch onto a paddle like a “clinched fist.”
(R.at 3.) While maneuvering the Crawford River, Ms. Bates’ Splash Rower snapped. (R. at 5.)
As a result, she lost her paddle and became victim to the river’s current and submerged hazards.
(R. at 5.) This incident would not have occurred absent a product malfunction because Vortex
designed the Splash Rower to keep an amputee’s prosthetic limb affixed to her paddle. See
17 McCorvey v. Baxter Healthcare Corp., 298 F.3d 1253, 1259 (11th Cir. 2002) (explaining that
evidence of a product’s failure to perform a manufacturer’s intended function supports an
inference of a manufacturing defect). Additionally, the malfunction occurred during Ms. Bates’
first use of her new Splash Rower. (R. at 5.) New or nearly new products provide strong
circumstantial support for an inference of a product defect. See Jarvis v. Ford Motor Co., 283
F.3d 33, 46 (2d Cir. 2002) (finding that a reasonable jury could infer a product defect when a sixday old automobile malfunctioned); and Shaun T. Mian Corp. v. Hewlett-Packard Co., 237
S.W.3d 851, 867 (Tex. 2007) (reasoning that new, undamaged and non-abused printers do not
ordinarily catch fire absent a product defect). Lastly, the Wells County Common Pleas Court
improperly concluded that Ms. Bates failed to negate her own misuse as a cause of the Splash
Rower’s malfunction. See Rudd v. GMC, 127 F. Supp. 2d 1330, 1346 (M.D. Ala. 2001)
(allowing an inference of a manufacturing defect where plaintiff’s own testimony negated
misuse); and Barnard v. Saturn Corp., a Barnard v. Saturn Corp., 790 N.E.2d 1023, 1028 (Ind.
App. 2003) (explaining that a jury should decide whether a plaintiff’s misuse precludes recovery
on a manufacturing defect claim).
Moreover, Ms. Bates deserves to have all circumstantial evidence heard by a trier of fact.
The Restatement expressly provides that circumstantial evidence “may offer the plaintiff the only
fair opportunity to recover” when she cannot directly examine a lost or destroyed product.
Restatement (Third) of Torts: Prods. Liab. § 3 cmt. B (1998). Here, Ms. Bates cannot retrieve the
portion of her Splash Rower that remained attached to the paddle she lost during her accident on
the Crawford River. Consequently, she cannot present direct evidence of a specific
manufacturing defect. Her position underscores the very purpose behind Section 3 of the
Restatement: “to allow a plaintiff to prove a case by circumstantial evidence when there simply
18 is no direct evidence of precisely how or why the product failed.” David G. Owen,
Manufacturing Defects, 53 S.C. L. Rev. 851, 874 (2002). Accordingly, this Court should reverse
the Crawford Court of Appeals’ ruling on Ms. Bates’ manufacturing defect claim.
B.
Ms. Bates Established a Design Defect by Showing that Vortex Had
Available an Economically and Technically Feasible Alternative Iron Splash
Rower When It Manufactured the Graphite Product that Later
Malfunctioned.
Ms. Bates also set forth sufficient evidence on her design defect claim to preclude
summary judgment. The Restatement provides that a product contains design defects when its
foreseeable risks of harm could have been reduced or avoided by the adoption of a reasonable
alternative design (“RAD”) and omission of the alternative design renders the product not
reasonably safe. Restatement (Third) of Torts: Prods. Liab. § 2 (1998) (b)(b). States generally
apply one of three standards for determining a defective design: (1) explicitly requiring proof of
a RAD; (2) a risk-utility balancing test that implicitly requires proof of a RAD; or (3) a
consumer expectations test that does not require proof of a RAD. (R. at 10.) In addition,
injured parties must establish that the product was not reasonably safe. Restatement (Third) of
Torts: Prods. Liab. § 2(b). Under the risk-utility analysis, products are unreasonably dangerous
if an alternative design would have led to improved safety in an economic and technically
feasible manner. Maxwell v. Howmedica Osteonics Corp., 713 F. Supp. 2d 84, 91 (N.D.N.Y.
2010). Here, Ms. Bates proved a RAD. She introduced the Materials Testing Report as relevant
non-expert evidence of Vortex’s available alternative Iron Splash Rower, which had economic
and technical practicability at the time of distribution.
1.
Ms. Bates proved a RAD by introducing the Materials Testing Report.
Ms. Bates proved a RAD by introducing the Materials Testing Report as relevant lay
testimony of Vortex’s available, safer iron alternative to graphite. Alternatively, Ms. Bates need
19 not establish a RAD if this Court adopts a limited two-prong approach that applies a consumer
expectations standard in res ipsa-like circumstances.
a.
The Materials Testing Report establishes a RAD.
Most jurisdictions require proof of a RAD. Restatement (Third) of Torts: Prods. Liab.
§ 2 (1998), Reporter’s Note, cmt. d. Some states explicitly mandate that plaintiffs prove a RAD
as a prerequisite to their design defect claim. Smith v. Louisville Ladder Corp., 237 F.3d 515,
518 (5th Cir. 2001) (applying Texas law); GMC v. Jernigan, 883 So. 2d 646, 662 (Ala. 2003);
Voss v. Black & Decker Mfg., 450 N.E.2d 204, 208 (N.Y. 1983). Others employ a general riskutility analysis that implicitly requires proof of a RAD. Dart v. Wiebe Mfg., 709 P.2d 876, 879
(Ariz. 1985). Lastly, some states apply a modified consumer expectations test that incorporates
risk-utility factors into the determination of a design defect. Potter v. Chi. Pneumatic Tool Co.,
694 A.2d 1319, 1333 (Conn. 1997). Under the modified approach, courts typically require
injured parties to prove a RAD. Aaron D. Twerski & James A. Henderson, Jr., Manufacturer’s
Liability for Defective Product Designs: The Triumph of Risk-Utility, 74 Brook. L. Rev. 1061,
1100 (2009).
In light of its controversy, the Restatement provides that an injured party typically relies
on expert testimony to prove a RAD. Restatement (Third) of Torts: Prods. Liab. § 2 cmt. f. This
burden generated considerable controversy among scholars. Philip H. Corboy, The Not-SoQuiet Revolution: Rebuilding Barriers to Jury Trial in the Proposed Restatement (Third) of
Torts: Products Liability, 61 Tenn. L. Rev. 1043, 1095 (1994); see generally Note, Just What
You’d Expect: Professor Henderson’s Redesign of Products Liability, 111 Harv. L. Rev. 2366,
2373 (1998) (providing that a RAD requirement “presents ‘a potentially insurmountable
stumbling block’” to persons injured by defectively designed products). However, the
20 Restatement also makes clear that the RAD requirement, “like any factual element in a case,”
remains an initial matter for the courts. Restatement (Third) of Torts: Prods. Liab. § 2 cmt. f. In
other words:
Sufficient evidence must be presented so that reasonable persons could conclude
that a reasonable alternative could have been practically adopted. Assuming that
a court concludes that sufficient evidence on this issue has been presented, the
issue is then for the trier of fact.
Id. In this case, the Crawford Court of Appeals properly determined that Ms. Bates presented
sufficient evidence of a RAD when she introduced the Materials Testing Report, and this Court
should affirm.
Similar to Ms. Bates, injured parties routinely advance competing designs as evidence of
a RAD. For instance, the court in Uniroyal Goodrich Tire Co. v. Martinez, 977 S.W.2d 328,
337 (Tex. 1998), found that injured mechanics proved a RAD by showing that competing
manufacturers used safer single-strand tire beads, rather than the double-strands that exploded.
The mechanics supported their showing with evidence that the defendant-manufacturer
eventually adopted the single-strand model. Id. Furthermore, the Supreme Court of South
Carolina determined in Branham v. Ford Motor Co., 701 S.E.2d 5, 13-14 (S.C. 2010), that an
injured passenger proved a RAD by showing that an automaker had available a competing
suspension system less prone to rollovers. In addition, the decision of Green v. Gen. Motors
Corp., 709 A.2d 205, 214 (N.J. 1998), which involved a crash victim proved a RAD by showing
that the automaker originally designed a safer roof for earlier models of the vehicle at issue. In
particular, the court in Green emphasized that the manufacturer’s own testing confirmed the
safety of the alternative roof. Id. at 213.
Comparable to the cases with competing designs, the Materials Testing Report
sufficiently establishes a RAD. The “Objective” of the Materials Testing Report illustrates that
21 Vortex knew of a stronger material before it sold Ms. Bates her graphite Splash Rower. (R. at
18.) Also, the “Test Materials” included “30 iron Splash Rowers.” (R. at 18.) Thus, Vortex
designed, produced and tested an iron alternative before distribution. (R. at18-20.) Effectively,
Vortex created a tangible competing design. Moreover, Vortex’s own testing showed that
twenty-percent of the graphite Splash Rowers bent when subjected to alternating currents at ten
mph. (R. at 19.) The iron alternatives remained straight. (R. at 19.) Based on these results, a
reasonable person could conclude that Vortex had available a safer, practical RAD at the time of
distribution.
b.
Alternatively, Ms. Bates established a design defect under a
two-prong approach that applies a consumer expectations
standard in circumstances that warrant an inference of a
product defect.
If this Court adopts a two-prong approach that applies a consumer expectations
standard to circumstances that warrant an inference of product defect, then Ms. Bates establishes
her defective design claim without proving a RAD. See Twerski & Henderson, supra at 1101
(providing that the Restatement complies with “two-prong states” that apply a consumer
expectations standard to “res ipsa-like” failures). For example, California limited its consumer
expectations prong to circumstances that permit an inference that a product failed to perform as
safely as it should. Soule v. Gen. Motors Corp., 882 P.2d 298, 308 (Cal. 1994); see also
McCabe v. Am. Honda Motor Co., 100 Cal. App. 4th 1111, 1125, 123 Cal. Rptr. 2d 303, 314
(2002) (reversing summary judgment because, “at a minimum,” triable issues remained as to
whether the consumer expectations test applied to an airbag that failed to deploy during a headon collision). In this case, the circumstances surrounding Ms. Bates’ accident permit a jury to
conclude that the Splash Rower failed to perform as safely as it should. Ordinary consumers
understand that a non-mechanical, single-material product like a Splash Rower should meet
22 minimum safety standards of withstanding natural river currents. Alternatively, this Court
should remand Ms. Bates’ matter with instruction to proceed under a limited two-prong
approach.
2.
Vortex’s failure to implement the safer iron alternative makes the
Splash Rower not reasonably safe because the risks of death and great
bodily harm outweigh the cost of redesigning the product.
If required, Ms. Bates establishes that the safer iron alternative avoids the risk of
catastrophic harm at a reasonable cost. Having shown a RAD, injured parties must also prove
that the alternative design reduces or avoids the risks of harm posed by the product at issue, and
that the omission of the alternative design renders that product not reasonably safe. Restatement
(Third) of Torts: Prods. Liab. § 2(b) cmt. d. The Restatement adopts a risk-utility balancing test
as the standard for determining whether omission of a RAD rendered the product not reasonably
safe. Id. The relevant factors considered under the risk-utilities balancing test include:
[T]he magnitude and probability of the foreseeable risks of harm, the
instructions and warnings accompanying the product, and the nature and
strength of consumer expectations regarding the product, including
expectations arising from product portrayal and marketing.
Id. § 2(b) cmt. F. See generally John W. Wade, On the Nature of Strict Tort Liability for
Products, 44 Miss. L.J. 825, 837-38 (1973).
Sufficient factors weigh heavily for Ms. Bates. As a threshold matter, the Materials
Testing Report establishes the availability of a technically feasible and practical iron alternative,
as Vortex actually produced thirty iron Splash Rowers for safety testing. (R. at 18.) Also,
Vortex packaged the Splash Rower in camouflage and marketed its product to veterans,
individuals typically portrayed as athletic, adventurous and daring. (R. at 5.) Such marketing
supports a consumer expectation that the Splash Rower could withstand extreme recreational
activities, let alone amateur kayaking. Lastly, Vortex sold its Splash Rower for $750. (R. at 4.)
23 Even if Vortex received standard rates for its graphite, the iron alternative costs only $187.50
more per unit. Where the foreseeable risks of product harm include drowning, hypothermia,
severe trauma and exposure, a reasonable jury could conclude that avoiding these dangers
justifies a higher cost.
Although certain factors may lean in Vortex’s favor, such as the social utility of a
recreational rowing attachment, Ms. Bates raises disputes of material fact by showing that a
reasonable jury could balance a number of considerations on her side. See Camacho v. Honda
Motor Co., 741 P.2d 1240, 1249 (Colo. 1987) (en banc). If this Court requires Ms. Bates to
prove a RAD, she raised sufficient factual disputes under the risk-utilities balancing test to
preclude summary judgment on her design defect claim.
C.
Vortex Failed to Provide Ms. Bates with Adequate Warnings and
Instructions Regarding the Splash Rower’s Limitations, and the Risks
Associated with Kayaking the Crawford River Are Nonobvious and Not
Generally Known by Amputees Like Ms. Bates.
Ms. Bates set forth sufficient evidence on her claim for warning defect to preclude
summary judgment. A product contains defective warnings or instructions when reasonable
information could have reduced or avoided the foreseeable risks of harm posed by the product,
and the omission of such information renders the product not reasonably safe. Restatement
(Third) of Torts: Prods. Liab. § 2(c). Inadequate instructions fail to inform users how to use a
product safely, and inadequate warnings fail to alert users to the product’s risks. Id. § 2 cmt. i.
Foreseeable users prove warning or instruction defects under a reasonableness standard, and
multiple factors bear on the inadequacy of the information. Id. Injured parties may prove
inadequacy by showing that manufacturers failed to warn of “nonobvious and not generally
known risks that unavoidably inhere in using or consuming the product.” Id. However, the
Restatement provides that obvious or generally known risks preclude recovery on a claim for
24 warning defect. Id. § 2 cmt. j. Here, Vortex’s warning, “FOR RECREATIONAL USE
ONLY,” inadequately instructed users on safe operation and failed to warn users of the Splash
Rower’s risks. Moreover, the risks associated with kayaking the Crawford River are
nonobvious and not generally known by amputees like Ms. Bates.
1.
Vortex provided inadequate warnings and instructions.
The Splash Rower contained a warning or instruction defect because Vortex failed to
inform foreseeable users of the product’s limitations. Particularly, Vortex should have known
that the Splash Rower could not perform at conditions similar to the Crawford River because the
Materials Testing Report indicated that graphite began to bend at currents of ten mph. See
Dunne v. Wal-Mart Stores, 679 So. 2d 1034, 1038 (La. Ct. App. 1996) (finding that a
manufacturer failed to warn consumers of the weight limit for a stationary exercise bike, making
the product unreasonable dangerous because individuals exceeding that limit were foreseeable
users). In addition, the language, “FOR RECREATIONAL USE ONLY,” fails to provide
foreseeable users with any particular instruction for safe use. In contrast, a recreational
trampoline provided the following:
Paralysis or death can result, even if you land in the middle of the trampoline mat
(bed). To reduce the chance of landing on your head or neck, do not do
somersaults (flips). Only one person at a time on trampoline. Multiple jumpers
increase the chances of loss of control, collision, and falling off. This can result
in broken head, neck, back, or leg. This trampoline is not recommended for
children under 6 years of age.
Parish v. Jumpking, Inc., 719 N.W.2d 540, 546 (Iowa 2006). Accordingly, this Court should
affirm the Crawford Court of Appeals’ decision to preclude summary judgment on Ms. Bates’
claim for warning or instruction defect.
25 2.
The risks of kayaking were nonobvious and not generally known to
amputees like Ms. Bates.
The risks of kayaking down the Crawford River are nonobvious and not generally
known. As a practical matter, the objective amputee does not generally know of the inherent
risks of kayaking because her disability would prohibit the activity. See Sauder Custom
Fabrication v. Boyd, 967 S.W.2d 349, 351 (Tex. 1998) (explaining that a manufacturer has a
duty to warn of the risks for which an ordinary user is unaware). Moreover, the risks of
recreational kayaking do not rise to the level of everyday knowledge that generally supports an
open and obvious defense. See McMahon v. Bunn-O-Matic Corp., 150 F.3d 651, 656-57 (7th
Cir. 1998) (denying the plaintiff’s failure to warn claim because the risk of spilling coffee while
driving is obvious). Thus, Ms. Bates survives summary judgment on her claim for warning
defect because a jury could conclude that the objective, foreseeable Splash Rower user does not
generally know of the risks inherent to kayaking. For the aforementioned reasons, this Court
should affirm the Crawford Court of Appeals ruling on Ms. Bates defect claims.
III.
MS. BATES SET FORTH SUFFICIENT EVIDENCE TO ESTABLISH THAT
THE SPLASH ROWER’S MANUFACTURING, DESIGN AND WARNING
DEFECTS CAUSED HER INJURIES.
The Splash Rower’s manufacturing, design and warning defects substantially caused Ms.
Bates’ injuries therefore making summary judgment inappropriate. This Court must also review
the causation of Ms. Bates’ injuries under a de novo standard of review.
According to the Restatement, the same general rules and principles that govern
causation in tort matters apply in products liability cases. Restatement (Third) of Torts: Prods.
Liab. § 15. First, actual cause shows “but for” the defect, the harm would not have occurred.
Whitmire v. Terex Telelect, Inc., 390 F. Supp. 2d 540, 554 (E.D. Tex. 2005). Second, proximate
26 cause demonstrates that the risk of harm is the natural, foreseeable, and probable consequence of
the defect. Rife v. Hitachi Constr. Mach. Co., 363 S.C. 209, 216 (Ct. App. 2005).
Furthermore, a court may consider an intervening act, such as misuse, as a superseding
cause and choose to relieve the defendant from liability. Perez v. VAS S.p.A., 188 Cal. App. 4th
658, 680 (2010). However, the superseding independent act must break the chain of causation
and produce enough harm that it would be unfair to hold the defendant responsible. Id.;
Restatement (Third) of Torts: Prods. Liab. § 15 cmt b.; Jason A. Henderson, Jr. & Aaron D.
Twerski, Achieving Consensus on Defective Product Design, 83 Cornell L. Rev. 867, 877 (1998)
(the “imposition of tort liability achieves corrective justice between the parties”). Nevertheless,
foreseeable misuse only diminishes plaintiffs recovery if they negligently misused a product and
that misuse combined with the product defect brought about their harm. Restatement (Third) of
Torts: Prods. Liab. § 17 cmt. c. Sometimes misuse is so unforeseeable that, as a matter of law,
there is no proximate cause. Id. § 15 (1998), Reporter's Note; Hernandez v. Tokai Corp., 2
S.W.3d 251 (Tex. 1999).
Generally, causation and misuse are questions of fact for the jury. Restatement (Third) of
Torts: Prods. Liab. § 15, Reporter's Note; Cardinal Health 301, Inc. v. Tyco Elec. Corp., 169
Cal. App. 4th 116, 146 (2008). Moreover, a court grants summary judgment on the issue of
causation only when the defendant shows the actions were the "sole" cause of the injury
sufficient to break the chain of causation, and not simply a substantial contributing factor.
Derienzo v. Trek Bicycle Corp., 376 F. Supp. 2d 537, 561 (S.D.N.Y. 2005); Speller v. Sears,
Roebuck & Co., 790 N.E.2d 252, 256 (N.Y. 2003).
In addition, circumstantial evidence allows an inference of a product defect. Bentley, 435
Crawford at 220. Both the State of Crawford and the Restatement finds that an inference exists
27 when the harm is not "solely the result of causes other than product defect existing at the time of
sale or distribution.” R. at 9; Restatement (Third) of Torts: Prods. Liab. § 3(b). Juries use
circumstantial evidence in simple defect cases that do not require the use of expert evidence.
Atkins v. GMC, 132 Ohio App. 3d 556, 564 (1999). Rather than negate all other possible causes
of harm, a plaintiff merely needs to show the reduced likelihood of other possible causes so that
a jury could reasonably determine by a preponderance of the evidence that the defendant is liable
for the cause of the malfunction. Shaun T. Mian Corp., 237 S.W.3d at 863. Further, factors such
as the age of the product, alteration, and misuse by the plaintiff or third parties may defeat a
causal inference. Restatement (Third) of Torts: Prods. Liab. § 3 cmt. d.
Here, Ms. Bates set forth sufficient evidence establish an inference of a causal connection
between her injuries and the Splash Rower’s manufacturing defect because the new condition of
the Splash Rower shows that the defect existed at the time it left Vortex’s control. Also, Ms.
Bates raised triable issues of fact to establish that the Splash Rower’s design defect caused her
injuries because Ms. Bates’ use of the Splash Rower was foreseeable. Finally, Ms. Bates
established the causal connection between her injuries and the Splash Rower’s warning defect
because Vortex did not provide an adequate warning for Ms. Bates to assess the potential risks
involved with using the Splash Rower.
A.
The Splash Rower's Manufacturing and Design Defects Substantially Caused
Ms. Bates’ Injuries.
Ms. Bates sufficiently established a causal connection to link her injuries to both the
manufacturing and design defects. A new product shows more probably than not that an
inference of a manufacturing defect existed at the time the product left the manufacturer’s
control. Shaun T. Mian Corp., 237 S.W.3d at 867 (a reasonable jury could infer that the new,
unaltered printer which caused a fire possessed a defect at the time it left the manufacturer’s
28 hands). Likewise, normal use also enhances an inference of a manufacturing defect. McCorvey,
298 F.3d at 1258 (stating that even if the common misuse of a catheter becomes standard
practice and differs from the manufacturers intended use, a casual inference of a manufacturing
defect still exists).
For design defects, the court in Richetta v. Stanley Fastening Systems, L.P., found that if
a RAD could have prevented the injury and the plaintiff had not behaved in a manner
constituting unforeseeable misuse, then the design defect claim could withstand summary
judgment. Richetta v. Stanley Fastening Sys., L.P., 661 F. Supp. 2d 500, 512 (E.D. Pa. 2009).
The Richetta court held that a jury could conclude that a reasonable construction worker often
does not disconnect a nail gun from its air compressor when he intends to continue using it. Id.
at 508. Specifically, the court noted that if the nail gun had been equipped with a RAD like a
safety latch, it would have prevented the nail gun from misfiring. Id. at 512. Thus, the question
of causation rested with the jury. Id.
Alternatively, an old product reduces the likelihood of an inference of a manufacturing
defect. Ford Motor Co. v. Ridgway, 135 S.W.3d 598, 601 (Tex. 2004). In Ford, the plaintiff’s
manufacturing defect claims amounted to no more than conclusory allegations. The plaintiff
sustained severe injuries when his pre-owned two-year-old truck caught fire. Id. The court
concluded no causal link existed between the malfunction and the expert’s testimony which
suggested that the electrical system in the truck caused the fire. Id. Furthermore, there was no
proof that established a defect existed at the time it left the manufacturer. Id. Thus, the plaintiff
failed to raise an issue of fact to withstand summary judgment. Id. at 602.
Likewise, unforeseeable misuse breaks the chain of causation. Perez, 188 Cal. App. 4th
at 685. The court in Perez found that the plaintiff misused the paper machine in two ways. First,
29 he threaded plastic through it, contrary to the manual and the machine's warnings, which stated
that the machine was designed to process paper material only. Second, he failed to avoid the
machine while it operated and actually used a knife to cut plastic rolls inside the machine, also
contrary to the manual. Id. Thus, the plaintiff's extreme misuse broke the chain of causation. Id.
However, in the present case, Ms. Bates sufficiently established a causal connection
between her injuries and the defective manufacturing and design of the Splash Rower to
withstand summary judgment. Furthermore, Ms. Bates' did not misuse the Splash Rower.
Vortex developed the Splash Rower to “provide amputees the opportunity to participate in
recreational activities." (R. at 23.) According to Crawford Regulation § 895.52, “recreational
activity” means “any outdoor activity undertaken for the purpose of exercise, relaxation or
pleasure” and broadly includes “water sports.” (R. at 23.) This Regulation defines the scope of
what constitutes normal foreseeable use of the Splash Rower because kayaking is both a water
sport and a recreational activity. A reasonable jury could also come to the same conclusion.
Also, Ms. Bates never abused the Splash Rower. Rather than attempt to kayak in a fast
and dangerous manner, she slowed the kayak down by dunking her paddle deep into the water.
(R. at 5). If a kayaker starts to struggle with their kayak, they will commonly try to maneuver it
in a way that allows them to regain control. Similar to the common misuse reasoning in
McCorvey, even if Vortex argues that Ms. Bates' conduct constitutes misuse, the manner which
Ms. Bates tried to regain control of her kayak is so common that Ms. Bates' behavior actually
amounts to normal use. On grounds of fairness, a court should hold Vortex accountable for Ms.
Bates’ injuries because she used the Splash Rower in a normal and foreseeable manner.
Moreover, Ms. Bates proved a causal inference of a defect because the Splash Rower
would not have malfunctioned “but for” a defect. Like the printer in Shaun T. Mian Corp., the
30 Splash Rower was a new product that Ms. Bates first used on June 22, 2010. (R. at 5). Thus, the
Splash Rower was in the same basic condition as when it left Vortex’s control. The
manufacturing defect more likely than not caused her injuries. Unlike the proof presented in
Ford Motor Co., the evidence here does more than simply raise the possibility that the
manufacturing defect could have caused her injuries. Rather, the evidence establishes that the
manufacturing defect substantially caused Ms. Bates’ ejection from her kayak, causing her to
smash into a cluster of rocks. Further, Ms. Bates’ injuries are the natural and probable cause of
the defect. It is reasonably foreseeable that the risk of harm created when the Splash Rower
suddenly snapped during kayaking would substantially affect an amputee like Ms. Bates. At a
minimum, Ms. Bates sufficiently raised a triable issue of fact regarding an inference of a causal
connection to preclude summary judgment.
Ms. Bates also proved a causal link between the design defect and her injuries. First, the
Splash Rower’s RAD is stronger than the graphite design. A jury could reasonably find that the
use of graphite instead of iron made the Splash Rower unreasonably dangerous and that “but for”
the design defect, Ms. Bates would not have been harmed. Second, her injuries are also the
natural and probable consequence of the design defect. It is reasonably foreseeable that the risk
of harm is great created when the Splash Rower suddenly snapped is substantial to a kayaking
amputee. Thus, summary judgment is inappropriate.
B.
The Splash Rower's Warning Defect Substantially Caused Ms. Bates’
Injuries.
The Splash Rower’s warning defect substantially caused Ms. Bates’ injuries because the
warning label did not contain adequate information to caution Ms. Bates of the risks. A failure
to warn claim asserts that had a warning been given, the injuries would not have
occurred. Stringer v. Nat'l Football League, 749 F. Supp. 2d 680, 690 (S.D. Ohio 2009). Thus,
31 a court requires plaintiffs to allege that they would have acted differently had the manufacturer
provided adequate warnings. Id. at 691. A manufacturer must be liable for injuries caused by
their failure to warn against reasonably foreseeable unintended use or misuse of the product.
Derienzo, 376 F. Supp. 2d at 567. Generally, the adequacy of a warning is a question of fact for
the jury. Id. At the summary judgment stage, the plaintiff does not have the burden to establish
that an adequate warning would have prevented the injuries. Id.
The court in Derienzo, 376 F. Supp. 2d at 570, found that the plaintiff's failure to warn
claim against a mountain bike manufacturer withstood summary judgment. In that case, the
plaintiff alleged that his injury from attempting to land a jump on his bike was caused by the
defendant's failure to warn against such use. The court found that jumping was not a misuse of
the bike because jumping was an "entirely foreseeable" and "expected use of a mountain bike”
and even the defendant’s catalogue marketed pictures of an airborne biker. Id at 569. In
addition, the fact that the plaintiff conceded that he had not read the warning did not defeat his
claim. The court reasoned that a jury could find that the "realities of society" might have resulted
in the plaintiff's friends informing him not to jump had an adequate warning against jumping
been included with the bike. Id. at 570. Therefore, summary judgment for the defendant was
denied. Id.
Alternatively, the court in Colon v. BIC USA, Inc., 199 F. Supp. 2d 53, 95 (S.D.N.Y.
2001), found that the plaintiff had failed to establish that the warning defect proximately caused
her son’s injuries. In that case, the plaintiff sued the defendant after her child severely injured
himself when he ignited his shirt with a butane cigarette lighter. The plaintiff alleged that the
non-permanent warning label "Keep Away from Children" had been removed and that this
constituted a warning defect. Id. at 92. The plaintiff failed to establish a causal link between the
32 defect and her son’s injuries. Id. at 95. Based on her testimony, she specifically warned her
child against using the lighter. As a result, the court determined that the alleged defect did not
substantially cause the injuries because the plaintiff’s conduct would have remained unchanged
regardless of the existence of a warning defect. Id. at 92-93. Thus, the court dismissed the
plaintiff's failure to warn claim. Id. at 95.
In the present case, Ms. Bates sufficiently established that the Splash Rower’s warning
defect substantially caused her injuries. The only warning that accompanied the Splash Rower
was a slip of paper with the words, "FOR RECREATIONAL USE ONLY" written in bold red
letters. (R. at 5). However, this warning failed to specifically articulate predictive information.
At best, the warning is ambiguous and fails to define "recreational use" or to distinguish between
"recreational use" and "professional use." According to the Crawford legislature's definition of
"recreational," this term includes all "water sports." (R. at 23). This broad definition shows that
kayaking is a reasonably foreseeable use of the Splash Rower and that the Splash Rower
substantially caused Ms. Bates’ injuries. Vortex had a duty to warn against the risks associated
with any foreseeable use of the Splash Rower. It also demonstrates that kayaking is a normal
foreseeable use of the Splash Rower and not a misuse that would break the chain of causation.
The record is silent as to any proof that Ms. Bates maneuvered the Splash Rower beyond its
normal use of kayaking. In fact, Ms. Bates slowed the kayak down and carefully maneuvered
around rocks and branches until the Splash Rower suddenly snapped. (R. at 5). Therefore, for
fairness purposes, because Ms. Bates used the Splash Rower in a normal foreseeable use and did
not misuse it, liability rests with Vortex.
In addition, had an adequate warning been provided, Ms. Bates' would have at least
understood the risks associated with kayaking. The Splash Rower’s warning “FOR
33 RECREATIONAL USE ONLY” never warned Ms. Bates not to kayak. Consequently, her
kayaking trip on June 22, 2010 was not a misuse. Unlike the plaintiff in Colon ex rel. Molina, an
adequate warning would have most likely changed her behavior. “But for” this warning defect,
Ms. Bates would not have been injured. Ms. Bates' injuries are also a natural and probable
consequence of the warning defect. Thus, Ms. Bates has raised an issue of triable fact that could
lead a jury to conclude that the warning defect substantially caused her injuries. Summary
judgment is therefore not appropriate.
In conclusion, Ms. Bates set forth sufficient evidence to establish an causal inference
between her injuries and the manufacturing defect because the new condition of the Splash
Rower shows that the defect existed at the time it left Vortex’s control. Second, Ms. Bates
established that the Splash Rower’s design defect substantially caused her injuries because Ms.
Bates’ use of the Splash Rower was normal and foreseeable. Ms. Bates never abused the Splash
Rower when she used it. Finally, Ms. Bates established the causal connection between her
injuries and the Splash Rower’s warning defect because Vortex did not provide an adequate
warning for Ms. Bates to assess the potential risks involved with using the Splash Rower.
Therefore, Ms. Bates has raised issues of triable fact that a jury could assess and appropriately
conclude that the manufacturing, design and warning defects of the Splash Rower substantially
caused Ms. Bates’ injuries. This Court should thus affirm the decision of the Crawford Court of
Appeals.
CONCLUSION
Wherefore, Respondent respectfully moves this Court to affirm the judgment of the
Crawford Court of Appeals for the Fifth District of Wells County.
34