Lead Opinion
[¶ 1.] Plaintiff was injured when a sports product manufactured by defendant malfunctioned and struck her arm. She brought suit against defendant alleging negligence, strict liability (defective design), and strict liability (failure to warn). Defendant moved for summary judgment on all claims and also sought to prohibit the testimony of her proposed expert witness. On finding that plaintiffs expert was not qualified to testify that the instructions provided with defendant’s product were inadequate, the circuit court excluded the testimony. The court then granted defendant’s motion for summary judgment, ruling that, without expert testimony, plaintiff had insufficient evidence to meet her burden of proof on all her claims. On appeal, we conclude that because the circuit court set the bar too high in determining the admissibility of the expert’s opinion, it should not have been excluded, and thus plaintiffs failure to warn claims may be able to proceed. We affirm in part, reverse in part, and remand.
I.
[¶ 2.] On April 12, 2001, Kylie Burley, a high school athlete, was injured in her school hallway while using a training device her coaches provided. It is called the Overspeed Trainer, manufactured and sold by Kytec Innovative Sports Equipment, Inc. The purpose of the Overspeed Trainer is to help improve a runner’s speed. The device can be used for either resistance or speed training. It requires two athletes to use, one, called the pacer, and the other, the sprinter. The sprinter wears a belt with a single release hook, and the pacer wears a belt equipped with a single swivel hook. A cord connects the two runners. The cord is tied to a post or other anchor. It is then extended through a pulley on the back of the belt worn by the pacer through to the rope end ring, which is attached to a release hook on the belt worn by the sprinter. The cord has a Velcro connection, termed a “ripcord,” which, according to the provided instructions, “will break loose and release the [sjprinter if the pull becomes too greatf.]”
[¶ 3.] After the cord and belts are in place, the pacer and the sprinter begin to run in the same direction, in either the same lane or two separate lanes, but the pacer is ahead of the sprinter. The pacer is to run faster than the sprinter, in effect pulling the sprinter to keep up and thereby increasing the sprinter’s speed. According to the instructions, “[t]he rope will automatically release from the Sprinter when the Pacer slows down or reaches the stopper ring (located 5 meters from the end ring; You’ll see how it works when you walk through it the first time.).” Also, the instructions indicate that the sprinter can release herself “with a quick chop downward to the tow line.”
[¶ 4.] Burley was using the Overspeed Trainer under the direction of her West Central High School track coach, Darrell Horacek. Horacek and assistant track coach, Denise Kennedy, introduced the brand new Overspeed Trainer for the first time the day Burley was injured. Before letting the students use the device, Hora-cek and Kennedy read the product’s instructions and attempted to assemble it. Horacek found that the instructions were of no help. However, because Kennedy
[¶ 5.] After the boys used it, Burley was one of the first girls to try the device. Details of the accident are not entirely clear from the record. Burley recalled that she was injured when her arm was struck from behind by the ring that was supposed to be attached to the sprinter’s belt. Horacek believed that the ring broke free, recoiled, and then hit Burley. The impact of the ring fractured the ulna bone in her left arm, requiring surgery and the implantation of a metal plate with screws.
[¶ 6.] Burley brought suit against Ky-tec, alleging that the company was negligent in its warnings, design, and construction of the Overspeed Trainer. She also alleged that because of the defective design and failure to warn, Kytec was strictly hable for her injuries. Kytec brought a third-party complaint against West Central School District for indemnity and contribution.
[¶ 7.] According to Kytec, Dr. Berkh-out lacked the knowledge, skill, experience, training, or education necessary to render an expert opinion in this case. See SDCL 19-15-2 (Rule 702). In its memorandum decision, the circuit court concluded that Dr. Berkhout’s proposed testimony would provide “the trier of fact with relevant evidence that would assist them in determining whether the instructions [were] deficient.”
[¶ 8.] Dr. Berkhout is a professor of Psychology and the Director of the Heims-tra Human Factors Laboratory at the University of South Dakota. He has a degree in physiology and biopsychology from the University of Chicago, obtained in 1962, and since 1993 is certified as a professional ergonomist by the Board of Certification of
[¶ 9.] The court then addressed Kytec’s motion for summary judgment. In her complaint, Burley alleged that Kytec “negligently designed and manufactured the Overspeed Trainer.” But she offered no expert testimony to assist the trier of fact in determining whether the product was defectively manufactured or designed or whether the actions of Kytec in designing and manufacturing the product were reasonable under the circumstances. The court held that for this claim expert testimony was necessary.
[¶ 10.] As to Burley’s claim alleging that Kytec was strictly liable for her injuries because the device “was in a defective condition and was unreasonably dangerous,” the court similarly concluded that expert testimony was necessary. In the court’s words, “it cannot be said that common experience tells us that Burley’s injuries could not have occurred absent a defect in the Overspeed Trainer, and Burley has failed to negate other causes of her injuries, namely user error or product modification.”
[¶ 11.] Finally, the court examined Burley’s last claim that Kytec was hable for its failure to provide adequate warnings of the dangers of the Overspeed Trainer. Because the court had excluded Dr. Berkhout’s testimony, the question became whether she could proceed without expert opinion. After identifying the elements necessary for her to prevail on the claims for inadequate warnings, the court held that “Burley has not presented this court with any evidence indicating that it would be able to meet its burden with respect to all those elements.” Thus, all her negligence and strict liability claims were dismissed. Burley appeals.
II.
[¶ 12.] We review a circuit court’s decision to admit or deny an expert’s testimony under the abuse of discretion standard. State v. Guthrie,
[¶ 13.] Admissibility of expert testimony is governed by SDCL 19-15-2 (Rule 702). Under this rule, before a witness can testify as an expert, that witness must be “qualified.” Id. Furthermore, “[u]nder Daubert, the proponent offering expert testimony must show that the expert’s theory or method qualifies as scientific, technical, or specialized knowledge” as required under Rule 702. Guthrie,
[¶ 14.] In this case, Burley offered Dr. Berkhout as an expert only on her claims pertaining to warnings and instructions. The circuit court found that Dr. Berkhout’s proposed testimony was relevant under Daubert, as it “would assist [the trier of fact] in determining whether the instructions are deficient.” However, it determined under Rule 702 that he was “not qualified to offer expert testimony in this case” even though he has “impressive credentials and expertise in a variety of areas[.]” Specifically, the court reasoned:
Dr. Berkhout testified that he has never been previously retained as an expert witness for inadequate warnings or improper instructions.... Dr. Berkhout was unfamiliar with the American National Standards Institute (ANSI), and therefore unfamiliar with the ANSI guidelines for warnings.... Dr. Berkh-out has not received any specified training or education related to product instructions, and while formalized training is not a prerequisite for admission under SDCL 19-15-2 [ (Rule 702) ], Burley has not demonstrated that Dr. Berkhout is qualified experientially. Dr. Berkhout has never personally drafted warnings or instructions for any device[,] much less a devise similar to the Overspeed Trainer.
Further, the court stated that “relevant case law emphasizes that a warnings expert should demonstrate expertise in the specific field in question” and “Dr. Berkh-out testified that he does not have any particular expertise in athletic training products, in the training of track athletes, or the training of athletes of any kind.”
[¶ 15.] According to Burley, on the other hand, Dr. Berkhout is more than qualified to render an expert opinion that the instructions for the Overspeed Trainer were deficient. In particular, she contends that Dr. Berkhout, as a certified ergonomist, studies “the interface and relationship between products and the users of such products,” and “warnings and instructions that accompany such a product are integral to the endeavor.”
[¶ 16.] A trial court is responsible for deciding whether an expert’s knowledge will “assist the trier of fact to understand the evidence or to determine a fact in issue,” under Rule 702. SDCL 19-15-2; see also Wheeling Pittsburgh Steel Corp. v. Beelman River Terminals, Inc.,
[¶ 17.] In examining the circuit court’s decision on Dr. Berkhout’s qualifications, we find several problems in the court’s analysis. To conclude, as the court did, that because Dr. Berkhout had “never been previously retained as an expert witness for inadequate warnings or improper instructions,” he was therefore not qualified to testify means that no one could qualify as an expert for the first time in our courts without having first qualified somewhere else. Mere experience as a practiced litigation witness is a poor touchstone for measuring genuine expert qualifications. See First Western Bank Wall v. Olsen,
[¶ 18.] A questionable inference can also be seen in the circuit court’s statement that “Dr. Berkhout was unfamiliar with the American National Standards Institute (ANSI), and therefore unfamiliar with the ANSI guidelines for warnings.” Although this may perhaps demonstrate limitations in his general knowledge of the field, neither the court nor counsel for Kytec cited a single ANSI standard that might conceivably apply in this case. How can an expert witness be disqualified for being unfamiliar with standards not shown to be relevant?
[¶ 19.] Another reason cited by the circuit court in finding Dr. Berkhout less than qualified was the fact that he “has not received any specified training or education related to product instructions^]” However, Dr. Berkhout has himself taught graduate level courses dealing with instructions and warnings. These include a course on the psychology of safety, with planning for warnings and instructions, and a course covering the comprehensibility and readability of instructions, labels, and signs. Reading, study, and practice can be a source of education and knowledge sufficient to qualify a person as an expert. See John W. Strong, McCormick on Evidence, § 13, 24 (5th ed. 1999).
[¶20.] Despite what the circuit court conceded were “impressive credentials and expertise in a variety of areas,” Dr. Berkh-out was found “not qualified to offer expert testimony in this case.” The court relied on Robertson v. Norton Co.,
[¶ 21.] In contrast, Dr. Berkhout has had considerable experience in the evaluation of instructions and warnings. He published articles on the uses of computer assisted instruction in developing psycho-motor skills related to heavy machinery operation; computer assisted instruction in applying psychomotor skill development; and the development of flight control skills in children. He has worked with companies in developing techniques for comparing the effectiveness of various vehicle signal and warning systems and the study and review of highway signage. He has also acted as a consultant in litigation on warnings and instructions on a tire and tire mounting machinery. He has supervised several doctoral dissertations on such subjects as evaluating operating manuals for snowplows and dump trucks, food nutrition labels, and the effect of instruction sets on performance on simulated navy ship operating systems. Apropos to this case, he is presently overseeing and directing a research project on manufacturer instructions for assembling and safely using tree stands for hunting. Under this study, three test groups of subjects are given different assembly instructions and monitored to measure which instructions provide improved assembly time and quality. These qualifications plainly differ with the deficiencies the court found in Robertson.
[¶22.] Another case the circuit court found persuasive was Pearson v. Young, an unreported federal district court decision, found at
[¶23.] It is true, as the circuit court pointed out, Dr. Berkhout had no experience in drafting or evaluating instructions and warnings for sports equipment. However, we believe a person with his credentials and experience in the field of product instructions and warnings had the qualifications to render opinions beyond the narrow scope of sports equipment. Even with the considerable deference the abuse of discretion standard requires, on full consideration of the record, excluding Dr. Berkhout’s testimony was an abuse of discretion. The circuit court set the bar too high.
[¶ 24.] “ ‘We interpret our rules of evidence liberally with the “general approach of relaxing the traditional barriers to “opinion” testimony.” ’ ” Guthrie,
[¶ 25.] The purpose of a Dau-bert hearing is to determine whether the offered “expert testimony both rests on a reliable foundation and is relevant to the task at hand.” Daubert,
III.
[¶ 26.] We next consider whether the circuit court properly granted summary judgment on all of Burley’s claims. In reviewing whether summary judgment was properly granted, “we decide only whether there were genuine issues of material fact and whether the law was correctly applied.” Toben v. Jeske,
[¶ 27.] To establish liability in negligence for defective product design or manufacture, a plaintiff must show that the defendant failed to use the amount of care in designing or manufacturing the product that a reasonably careful designer or manufacturer would use in similar circumstances to avoid exposing others to a foreseeable risk of harm. Restatement Second of Torts § 395. To determine whether the designer or manufacturer used reasonable care, one must balance what the designer or manufacturer knew or should have known about the likelihood and severity of potential harm from the product against the burden of taking safety measures to reduce or avoid the harm. Id.
[¶ 28.] “Whether a manufacturer knew or should have known of a particular risk involves technical issues which do not easily admit to evidentiary proof and which lie beyond the comprehension of most jurors.” Peterson v. Safway Steel Scaffolds Co.,
[¶ 29.] Burley argues that Kytee should have tested the product, and thus, should have known that the hook was bendable. However, Burley has not presented any evidence that even if the hook was bendable that such condition made the product defective. Moreover, it is undisputed that Horacek altered the design of the Over-speed Trainer before Burley’s injury. Therefore, even if the bendability of the hook arguably created a defect or dangerous condition in the product, expert testimony is needed to explain to the jury how the design of the Overspeed Trainer, not Horacek’s alteration, proximately caused Burley’s injuries. See Caldwell v. John Morrell & Co.,
[¶ 30.] Indeed, expert testimony is ordinarily required to establish a claim of negligence in a products liability action. Dancy v. Hyster Co.,
[¶ 31.] A manufacturer’s duty to test and inspect traditionally does not give rise to an independent cause of action for products liability.
[¶ 32.] In her next claim, Burley alleges that Kytec is responsible under a theory of strict liability (defective design). Strict liability arises when a manufacturer “sells any product in a defective condition unreasonably dangerous to the user or consumer....” Peterson,
[¶ 33.] As with her negligence claim, Burley contends that because Kytec knew that the Overspeed Trainer would be unsafe if the hook were bent, it should have designed a product “with a hook that would withstand attempts to bend it.” According to Burley, expert testimony is not necessary to explain to a jury that a stronger hook could have been used, thereby making the product safer. However, expert testimony is required to identify for the jury how the purportedly defective hook was the proximate or legal cause of Burley’s injuries. On this, she has not offered any evidence. She relies solely on her argument that a stronger hook could have been made, and because it was not, the Overspeed Trainer was defective and because she was injured the defect caused her injury.
[¶ 34.] A central element to her strict liability (defective design or manufacture) claim is that the defect was the cause of her injuries. While legal or proximate cause is generally a jury question, a causal relationship between the alleged defect and injury is not presumed. To survive a motion for summary judgment, Burley “must present more than ‘[unsupported conclusions and speculative statements, [which] do not raise a genuine issue of fact.’ ” See Bordeaux v. Shannon County Schools,
[¶ 35.] Lastly, Burley asserts that Kytec is liable for its failure to warn of the dangerous condition of the Over-speed Trainer. To prevail on a claim for strict liability (failure to warn), Burley must establish that
1. a danger existed associated with a foreseeable use of the product;
2. an inadequate warning was given regarding the danger;
3. as a result of the inadequate warning, the product was rendered defective and unreasonably dangerous;
4. the defective and unreasonably dangerous condition existed at the time it left the control of the manufacturer;
5. the product was expected and did reach the user without a substantial unforeseeable change in the condition that it was in when it left the manufacturer’s control; and
6. the defective condition was the legal cause of [her] injuries.
South Dakota Pattern Jury Instruction 150-04. “The issue under strict liability is whether the manufacturer’s failure to adequately warn rendered the product unreasonably dangerous without regard to the reasonableness of the failure to warn judged by negligence standards.” Peterson,
[¶ 36.] Although it is not clear from plaintiffs appellate briefs whether negligent failure to warn remains in issue here or whether Dr. Berkhout’s opinions were offered in support of such claim, his qualifications, subject to a reliability finding, may be sufficient to support that claim. To establish liability for negligent failure to warn, a claimant must prove that (1) the manufacturer knew or reasonably should have known that the product was dangerous or was likely to be dangerous when used in a reasonably foreseeable manner; (2) the manufacturer knew or reasonably should have known that users would not realize the danger; (3) that the manufacturer failed to exercise reasonable care and adequately warn of the danger or instruct on the safe use of the product; (4) that a reasonable manufacturer under the same or similar circumstances would have warned of the danger or instructed on the safe use of the product; (5) that the claimant was harmed; and (6) that the manufacturer’s failure to warn or instruct was a proximate or legal cause of the claimant’s injury. Restatement Second of Torts § 388. See also Jahnig v. Coisman,
[¶ 37.] Causation is an essential element in a failure to warn claim. Therefore, to survive a motion for summary judgment, Burley must present sufficient evidence to show that the bending of the hook was a foreseeable alteration that made the product unreasonably dangerous. She must also establish that Kytec should have included a warning against this foreseeable alteration, and even though the hook was bent, the failure to warn legally caused her injuries.
[¶ 38.] Although Kytec acknowledged that a bent hook would make the Overspeed Trainer unsafe, and conceded that it did not test or inspect the product to determine whether an adequate warning should have been provided against bending the hook, the fact that an accident occurred while Burley was using the Over-speed Trainer does not perforce mean that Kytee’s failure to warn was the legal cause of Burley’s injuries. Indeed, a manufacturer has a duty to test and inspect its products and a breach of this duty can render a product defective. However, a failure to test or inspect cannot, standing alone, cause the resulting injury. See supra n. 6. Rather, the duty to warn “may well encompass a duty to test a product to discover defects.” Kociemba,
[¶ 39.] Therefore, Burley must establish a causal relationship between Kytec’s failure to warn and her injury. This re
[¶40.] Had the product not been altered before the accident, Burley may have had sufficient evidence without expert testimony because absent a misuse or alteration it may be reasonable to infer the Overspeed Trainer was the legal or proximate cause of her injuries. However, to impose liability for Kytec’s failure to test and inspect the Overspeed Trainer, “where the causal link to the known harm to [Bur-ley] is the unknovm outcome of testing that was not done, would be beyond the pale of any ... tort doctrine we can identify.” See Valentine,
[¶ 41.] Dr. Berkhout is qualified to render opinions on the failure to warn claims. Accordingly, with respect to those claims (strict liability and negligence), if the circuit court finds that any of Dr. Berkhout’s opinions meet the reliability prong from DaubeH, then those opinions will be sufficient for these claims to be presented to the jury. On the other hand, should the court find the opinions unreliable, these claims cannot proceed without expert opinion testimony.
[¶ 42.] Affirmed in part, reversed in part, and remanded.
Notes
. Burley settled her claim against West Central School District.
. We agree with the circuit court that Dr. Berkhout’s opinions would be relevant. Ky-tec argues that Dr. Berkhout's opinions about failure to warn are irrelevant primarily because Burley never read the instructions on using the Overspeed Trainer, so she could not have been confused or misled by them. However, Kytec knew that this product was sold to schools where the users would be minor student athletes. It knew that coaches or school personnel would be the ones who actually read the instructions before the students used the product.
. A number of federal courts have used the Daubert framework in evaluating the admissibility of opinions from professional ergonom-ists. See Magdaleno v. Burlington Northern R.R. Co.,
. "Rule 702 reflects an attempt to liberalize the rules governing the admission of expert testimony." Weisgram v. Marley Co.,
. Dr. Berkhout was only offered as an expert on Burley's inadequate instructions and failure to warn claims.
. Burton v. R.J. Reynolds Tobacco Co.,
. In its brief to this Court, Kytec contends that because Burley did not read the instructions, the proper party to bring a failure to warn claim would be Horacek. Horacek, however, was in a role as parens patriae when reading the instructions before the student athletes’ use of the Overspeed Trainer. Therefore, that fact that Burley did not read the instructions is immaterial.
Concurrence Opinion
(concurring in part & dissenting in part).
[¶ 45.] If the trial court had its way, manufacturers of specially designed products could plagiarize or copy another manufacturer’s product without using, testing, designing, instructing on proper use, or warning on improper use. The product could be unworkable, defective, dangerous and could be marketed to South Dakota consumers almost without risk or liability. Thank God the majority opinion puts a stop to that scenario, at least in part.
[¶ 46.] However, the trial court made many other errors, which the majority opinion failed to correct. These errors result from an excessive view of the need for expert testimony and the qualifications therefore, a rush to summary judgment when genuine issues of material fact exist, and excessive emphasis on admissibility over the weight of opinion evidence.
[¶ 47.] As indicated in the majority opinion at paragraph 24, all that must be shown is that expert’s testimony rest upon “good grounds, based on what is known.” See Daubert,
[¶ 48.] However, the majority opinion fails to correct the remainder of the mistakes. Facts supporting reversal of summary judgment on 1) negligence and 2)
After Horacek assembled it, he attempted to use it to see if it would release as the instructions indicated. He noticed that the hook on the sprinter’s belt would rotate downward, thereby “making it virtually impossible for a ‘downward chop’ to release the hook and ring.” Because the downward chop was a means of releasing the sprinter from the pacer’s pull, Horacek decided to bend the hook just enough to make it easier for the ring to release. He bent the hook by using pliers and then tried using the device again. This time, he believed that the hook and ring released appropriately when he applied the downward chop.
Supra ¶ 4. .
[¶ 49.] Because the hook would rotate downward, it was virtually impossible for a downward chop to release the hook and ring. Obviously, it was foreseeable that someone would bend this hook to allow the ring to release, especially in view of the absence of instructions to the contrary and the fact that the downward chop was a purported safety release. In addition, if the hook should not have been bent, it could have been so designed or made with sturdier materials to prevent bending. The majority opinion claims Burley has “not provided an evidentiary basis tending to show that the injury was caused by a defect rather than the alteration of the product.” Supra ¶ 34. However, the fact that the ring could be bent, coupled with the admissions Kytec knew the product would be dangerous if the ring was bent, and did no testing to discover if the ring could be bent, is ample evidence for the jury. “The law recognizes that there can be strict liability of a supplier even though the product is altered or changed if it is foreseeable that the alteration would be made and the change does not unforesee-ably render the product unsafe.” Zacher v. Budd Co.,
[¶ 50.] Moreover, the Eighth Circuit has held, and this Court has noted in one of our cases, that “where there exists both a design defect and misuse of the product, and it is assumed that each contributes to an accident, the misuse of the product is not an intervening cause if the misuse was foreseeable.” Id. (quoting Griggs v. Firestone Tire & Rubber Co.,
[¶ 51.] These questions present genuine issues of material fact concerning negligence, strict liability (defective design). The trial court is supposed to maintain an even playing field, not one slanted uphill. The trial court is supposed to be the gate keeper, not the goal keeper, nor the score keeper. We should reverse and remand for a fair trial on all issues.
[¶ 52.] It was clear error for the trial court and the majority opinion to affirm the summary judgment on negligence, strict liability (defective design) when the admission of Dr. Berkhout’s expert opinion testimony, the admissions by Kytec and the common sense and knowledge of the jury may be more than enough to support all three causes of action. The majority opinion claims imposing liability “for Ky-
[¶53.] This case is one to be decided by a jury. “It is inappropriate to affirm a trial court’s grant of summary judgment merely because we might believe the non-moving party would not have prevailed at trial.” Heib,
[¶ 54.] Because material issues of genuine fact exist and expert testimony is not necessarily needed to support Burley’s claims, I dissent.
Concurrence Opinion
(concurring in part and dissenting in part).
[¶ 55.] I concur on Issue 1 (Daubert) and join Justice Sabers’ dissent on the other issues.