Burley v. Kytec Innovative Sports Equipment, Inc.

BURLEY, Kylie Plaintiff Appellant, SPORTS

KYTEC INNOVATIVE

EQUIPMENT, INC., Defendant Appellee. District, School

West Central Party Defendant.

Third

No. 24132. Dakota.

Supreme Court South Nov. 2006.

Argued Aug. 2007.

Decided use, one, Pashby, pacer, F. Tobin of athletes to called the Gary J. Michael LLP, Greenfield, Welk, Pashby, & Boyce, other, sprinter. sprinter Falls, Dakota, Attorneys for Sioux South hook, single a wears a belt with release plaintiff. pacer equipped and the wears belt A single swivel hook. cord connects Arndt, May R. Swier of <&

Mark J. Scott a post two runners. The cord is tied to Falls, Dakota, Johnson, PC, Sioux South It through other anchor. is then extended Attorneys appellee. for defendant and pulley on the back of the belt worn KONENKAMP, Justice. pacer through rope ring, to the end is attached to a release hook on the which injured Plaintiff when a by sprinter. the The belt worn cord has by sports product manufactured defendant connection, “ripcord,” termed a her arm. Velcro malfunctioned and struck She which, brought against alleging according provided defendant to suit the instruc- (defective liability negligence, tions, strict de- “will break loose and release the (failure warn). sign), and strict to pull if [sjprinter greatf.]” the becomes too summary judgment Defendant moved for After the cord and belts are in sought prohibit on all claims and also to place, pacer sprinter begin the and the to testimony proposed expert the of her wit- direction, run the same either the finding plaintiffs expert ness. On that lanes, separate same lane or two but the qualified testify was not to the in- pacer sprinter. of the The pacer is ahead provided prod- structions with defendant’s sprinter, is to run faster than the effect inadequate, uct were the circuit court ex- pulling sprinter keep up to and there- testimony. The court cluded the then by increasing sprinter’s Ac- speed. granted summary defendant’s motion for instructions, cording rope to the will “[t]he that, judgment, ruling without testi- automatically Sprinter release from the mony, plaintiff had insufficient evidence to the Pacer slows down or proof meet her burden of on all her claims. when reaches the (located appeal, On we conclude that because the stopper ring 5 meters from the circuit high court set the bar too deter- ring; end You’ll see how it works when mining admissibility of the expert’s time.).” Also, you through walk it the first excluded, opinion, it not have should been sprinter the instructions indicate that the plaintiffs and thus failure to warn claims quick can release herself “with a chop affirm may proceed. be able to We downward to the tow line.” part, part, reverse in and remand. using was the Overspeed Trainer under the direction her West I. coach, High Central School track Darrell 12, 2001, April Kylie Burley, a [¶ 2.] On Horacek. Horacek track and assistant athlete, high injured in school her coach, Kennedy, Denise introduced the hallway using school a training while de- Overspeed brand new Trainer for the first provided. vice her It coaches is called the day Burley injured. time the Before Trainer, Overspeed manufactured and sold device, letting Hora- students use by Kytec Sports Equipment, Innovative Kennedy product’s cek and read the in- Inc. purpose Overspeed of the Train- attempted structions and to assemble it. help improve speed. er is to a runner’s Horacek found that the instructions were The device can be used for either resis- Kennedy It speed training. requires help. tance or two of no because Overspeed tion of the Trainer. She also using a similar device while experience had track University alleged Dakota’s de- South because defective during a team, warn, had used one strictly and Horacek sign Kytec and failure to University, at the training weekend injuries. Kytec brought hable for her prepare attempted two third-party complaint against West Cen- After Hora- use. Trainer for students’ indemnity for and con- tral School District it, to use it to attempted he cek assembled tribution.1 Dr. Jan Berkhout of the Uni- the instructions if it would release as see versity of Dakota was retained as an South the hook on the He noticed that indicated. expert solely Burley’s failure to warn downward, belt would rotate sprinter’s Burley sought opinion claims. to offer an virtually impossible for thereby “making it from Dr. Berkhout instructions the hook and chop’ a ‘downward release included with the Trainer were chop was a ring.” Because the downward “seriously deficient.” moved to ex- sprinter from the releasing means of clude and also this decided to bend the pacer’s pull, Horacek summary judgment on all claims. sought it for the just enough to make easier hook According Kytec, Dr. Berkh- He bent the hook ring to release. skill, knowledge, experience, out lacked the using tried the de- using pliers and then necessary to render training, or education he that the again. vice This time believed this case. See SDCL expert opinion an after ring appropriately and released hook (Rule 702). In 19-15-2 its memorandum chop. the downward He of- applied he decision, that the circuit court concluded Trainer for use to Overspeed fered the proposed testimony Dr. Berkhout’s would track girls’ boys’ the and teams. both provide “the trier of fact with relevant it, boys Burley After the used [¶ 5.] evidence that would assist them in deter- try the device. girls was one of the first mining the instructions de- [were] whether entirely not Details of the accident are 2 However, ficient.” the court found that Burley clear from the record. recalled to offer an qualified Dr. Berkhout was injured when her arm was that she was expert opinion about whether the instruc- by ring from behind that was struck accompanying tions supposed sprinter’s to be attached to the inadequate improper. were ring belt. Horacek believed that recoiled, free, Burley. hit broke and then of professor Dr. Berkhout [¶ 8.] impact ring fractured the ulna Heims- Psychology and the Director of the arm, requiring surgery in her left bone Laboratory tra Human Factors at the Uni- implantation plate of a metal and versity degree Dakota. He has a of South screws. biopsychology and from the physiology 1962, University Chicago, obtained Burley brought against Ky- suit professional as a tec, and since 1993 is certified company negli- that the alleging by warnings, design, ergonomist and construc- the Board Certification gent its against confused or misled them. How- Burley claim West Cen- have been 1. settled her ever, Kytec product tral School District. was sold to knew this minor stu- where the users would be schools agree We with the circuit court that Dr. 2. or school dent athletes. It knew coaches Ky- opinions relevant. Berkhout’s would be actually personnel would be the ones who argues opinions about tec that Dr. Berkhout's used read the instructions before the students primarily are be- failure to warn irrelevant product. the instructions on cause never read Trainer, using so she could not Nonetheless, inadequate warnings, claims the court Ergonomists. Professional “Burley circuit court concluded that “Dr. presented held that has not this any specified has not received indicating Berkhout court with evidence that it product training or education related to would be able to meet its burden with instruction,” “expertise does not have Thus, respect to all those elements.” all syntax questions display, empha- negligence her and strict claims sis[,]” “personal experience no has Burley appeals. were dismissed. writing evaluating warning labels for II. equipment.” Accordingly,

athletic granted Kytec’s court motion to exclude circuit We review testimony. Dr. Berkhout’s deny an court’s decision to admit or ex pert’s testimony under the abuse of discre Kytec’s The court then addressed Guthrie, tion standard. State v. 2001 SD summary In judgment. motion for her ¶ (internal 30, 627 414-15 complaint, Burley alleged Kytec “neg- omitted); citations see also State Edel ligently designed and manufactured the man, 52, ¶4, 419, 421 593 N.W.2d Overspeed Trainer.” But she offered no Bachman, (citing of fact State v. 446 N.W.2d assist trier (S.D.1989)); Harrison, determining whether the Zens v. (S.D.1995) (citations defectively designed manufactured or or N.W.2d omit in designing ted); whether the actions of v. Logue, State (S.D.1985) (citations omitted). manufacturing were rea- “Although under repeatedly sonable circumstances. The we have invoked stock defini tions, court held that for claim this testi- the term ‘abuse of discretion’ defies mony necessary. easy description. It is a fundamental judgment, error of a choice outside the Burley’s alleging As to claim [¶ 10.] choices, decision, range permissible of Kytec strictly inju- liable for her which, consideration, arbitrary on full is or ries because the device in a “was defective Arneson, unreasonable.” Arneson v. unreasonably condition and was danger- ¶ (citation 125, 14, 904, SD N.W.2d ous,” similarly the court concluded that omitted.). testimony necessary. In expert the words, court’s “it cannot be said that com- Admissibility expert experience Burley’s inju- mon tells us that testimony governed by is SDCL 19-15-2 ries could not have occurred absent a de- (Rule 702). rule, Under this before a wit Trainer, Overspeed fect testify expert, ness can as an witness negate has failed to other causes of her Furthermore, “qualified.” must be Id. injuries, namely user error or Daubert, proponent offering “[u]nder modification.” expert testimony must show that the ex Finally, pert’s theory qualifies court examined or method as scien tific, technical, Burley’s claim that specialized knowledge” last was hable Guthrie, provide adequate for its failure to required warn- as under Rule 702. ¶ 34, 415-16; ings dangers at 2001 SD Pharmaceuticals, Trainer. Because the court had excluded Daubert v. Merrell Dow Inc., 579, 597, testimony, question Dr. Berkhout’s be- 509 U.S. 113 S.Ct. (1993). proceed came whether she could without 125 L.Ed.2d 469 Before ad expert opinion. identifying mitting expert testimony, After a court the ele- must necessary ments prevail qualified for her to on the first determine that such testimo- therefore unfamiliar with the and based on a reliable ANSI ny relevant is ¶ Guthrie, 61, 32, 627 2001 SD guidelines warnings.... foundation. Dr. Berkh- demon at 415. The burden of N.W.2d any has not received train- specified out testimony strating competent, that the is in- ing or education related to relevant, propo and reliable rests with structions, training and while formalized testimony. SDCL 19-9-7 nent of prerequisite is not a for admission under (Rule 104(a)). proponent ex (Rule 702) ], Burley SDCL 19-15-2 has [ admissibility testimony prove must its pert not demonstrated that Dr. Berkhout of the evidence. Dau by preponderance experientially. qualified Dr. Berkhout bert, at 592 n. 113 S.Ct. at 509 U.S. personally warnings has never drafted n. 125 L.Ed.2d 469 n. 10. “Rele device[,] any or instructions for much having any embraces ‘evidence ten vance less a devise similar to the Overspeed any fact dency to make the existence of Trainer. consequence that is of to the determination Further, the court stated that “relevant proba or less probable of the action more emphasizes case law that a warnings ex- it be the evi ble than would without pert expertise should demonstrate in the Guthrie, 61, ¶32, 627 dence.’” specific question” field in “Dr. Berkh- 19-12-1). (quoting at 415 SDCL any out testified that he does have case, Burley In this offered 14.] [¶ particular expertise training athletic only on her expert Dr. Berkhout as athletes, products, training of track warnings and instruc pertaining claims training of athletes of kind.” that Dr. tions. The circuit court found According Burley, on the oth- rele proposed Berkhout’s hand, quali- er Dr. Berkhout is more than Daubert, as it “would assist vant under fied to render an that the opinion determining whether trier of [the fact] instructions for the the instructions are deficient.” particular, were deficient. In she con- Rule 702 that he was it determined under Berkhout, tends that Dr. as a certified testimony in qualified “not to offer ergonomist, studies “the interface and re- though “impressive this case” even he has lationship products between users variety in a expertise credentials and in- products,” “warnings of such and and Specifically, the court reasoned: areas[.]” accompany structions that such a Dr. that he has never Berkhout testified Moreover, integral to are the endeavor.”3 retained as an previously been and graduate she avers that he “teaches im inadequate warnings for witness University level at the of doctoral classes Dr. Berkhout proper instructions.... specifically Dakota on instructions unfamiliar with the American Na South (ANSI), warnings.” Burley and believes that the tional Standards Institute and (E.D.La.) (un- Telecom, Inc., have 1996 WL 200281 3. A number of federal courts used Co., evaluating published); in the admissi- Central R.R. Daubert framework Dukes v. Illinois 939, (N.D.Ill.1996); ergonom- F.Supp. bility opinions professional 934 947 of from Zarecki F.Supp. 914 Passenger Corp., Magdaleno Burlington ists. v. Northern v. Nat'l R.R. 1566, (D.Colo.1998) (un- (N.D.Ill.1996);; Schneck v. Co., F.Supp.2d 899 1572-73 5 R.R. F.Supp. 1996 WL Corp., published); Finley 964 Corp., NCR Int'l Business Machines v. 882, (D.N.J.) (D.N.J.1996); (unpublished); 885789 v. 886 v. Pertec Com Bowers Dennis (D.N.J.1996), Telecom, Inc., F.Supp. F.Supp. 905 927 161 puter Corp., Northern (N.D.Fla.1995); (3d Cir.1997); Hopkins v. NCR 135 F.3d 764 1009-10 'd, Ben aff (M.D.La.) (unpublished), Sector, Inc., F.Supp. WL 757510 Corp., v. PRC nett Public (5th Cir.1995). (S.D.Tex.1996); 53 F.3d 1281 'd, 493-94 Vice v. Northern aff questionable the ath- A inference “wrongly [¶ 18.] circuit court focused on equipment, purpose letic nature and can also be seen in the circuit court’s Dr. Berkhout wrongly required and that “Dr. Berkhout unfamil statement expertise in the realm have some level iar with the American National Standards with athletics in equipment of athletic and (ANSI), Institute and therefore unfamiliar Instead, that Dr. general.” she contends guidelines warnings.” for with the ANSI experience Berkhout’s with athletics or may Although perhaps this demonstrate training go should more to the athletic general knowledge limitations in his than to its weight opinion, of his rather field, neither the court nor counsel for admissibility. single cited a ANSI standard might conceivably apply this case. How responsible A trial court disqualified can an expert witness be for expert’s an knowl deciding for whether being unfamiliar with standards shown edge will the trier of fact to under “assist to be relevant? stand the evidence or to determine a fact Another cir- reason cited issue,” 19-15-2; under Rule 702. SDCL finding cuit court Dr. Berkhout less Wheeling Pittsburgh Corp. see also Steel qualified than was the fact that he “has not Terminals, Inc., 254 Beelman River F.3d (8th Cir.2001) specified training received or edu- (citing Kumho Tire cation related to Carmichael, 137, 156, instructions^]” Ltd. v. 526 U.S. 1167, 1178, taught Dr. Berkhout has himself 119 S.Ct. 143 L.Ed.2d 238 (1999)). graduate dealing level courses in- responsibility And that includes with determining particular expert warnings. “whether structions and These include a has specialized knowledge safety, sufficient to as course on the psychology of jurors specific deciding instructions, sist issues planning warnings and Wheeling Pittsburgh the case.” Steel covering comprehensibili- and course (citation omitted). Corp., 254 F.3d at 715 instructions, labels, ty readability and signs. Reading, study, practice In examining the circuit can abe source of education and knowl- Dr. qualifi court’s decision on Berkhout’s edge qualify person sufficient as cations, problems in the we find several expert. Strong, See John W. McCormick conclude, analysis. court’s To as the court (5th 1999). Evidence, § ed. did, that Dr. Berkhout had because “never Despite what the circuit court [¶20.] previously been retained as an wit “impressive conceded were credentials inadequate warnings improper ness for areas,” expertise variety in a Dr. Berkh- instructions,” quali he therefore not qualified expert out was found “not to offer testify fied to means that no one could in testimony this case.” The court relied qualify an in expert as for the first time on v. Robertson Norton 148 F.3d qualified our courts having without first (8th Cir.1998), a case in which an experience somewhere else. Mere as a undoubtedly qualified “was to testi- practiced litigation is a touch poor witness fy manufacturing about a defect in an ex- measuring genuine expert qualifi stone for wheel,” ploding grinding ceramic but was cations. See First Western Bank Wall testify grinding not Olsen, ¶9, qualified deemed on warnings. wheel The court ruled that the (expert’s qualifications 615-16 should not focus”). expert’s “knowledge be examined under “restricted of ceramics would found in of dis- the deficiencies the court Robert- ‘questions on expertise provide jury son. that the syntax, emphasis’ and play, warnings fide from a bona expect

would Another case the circuit court [¶22.] There, expert’s “formal Id. expert.” Young, was Pearson v. persuasive found of a col- warnings in consisted education court unreported an federal district deci- at course.” Id. entry-level psychology lege sion, found at 2002 WL 32026157 qualifica- only And his “relevant 907 n. 1. (W.D.Okla.). There, expert offering in Human membership past were tions testimony of a opinion adequacy on Society experience and limited Factors warning registered for a forklift was a drafting warnings looking at literature and engineer, with a Bachelor of professional As in gasification facility.” Id. for a coal degree Engineering Science Mechanical case, also unfamiliar our in Management. and a Master of Science guidelines. with the ANSI only exposure subject Id. His to the of product warnings attempt was his own contrast, In Dr. Berkhout has proposed warning draft a for the in the evalua- experience had considerable litigation in the same he was called to warnings. and He tion of instructions Berkhout, testify in. Dr. he Id. Unlike computer uses of articles on the published had testing spoken had done no and never psycho- developing instruction in assisted to the individuals involved the accident. heavy machinery motor skills related Here, id. Dr. Berkhout reviewed the computer assisted instruction operation; depositions of and Coach Horacek development; skill applying psychomotor and then tested the flight of control skills development and the using Kytec’s instructions. compa- He has worked with in children. true, It as the circuit court [¶23.] compar- for developing techniques nies out, experi- Dr. Berkhout had no pointed sig- vehicle the effectiveness of various ing evaluating instructions drafting ence warning systems study and the nal and equipment. How- warnings sports and for He has highway signage. review of and ever, creden- person believe a his we litigation a consultant in on also acted as experience tials and in the field on a tire and warnings and instructions warnings qualifi- had the instructions super- mounting machinery. He has tire beyond the nar- opinions cations to render on such several doctoral dissertations vised Even with scope sports equipment. row manuals subjects evaluating operating as deference the abuse of the considerable trucks, dump food nu- snowplows for full con- requires, standard discretion labels, of instruction trition and the effect record, excluding Dr. sideration of the navy performance sets on on simulated dis- Berkhout’s abuse of systems. Apropos to this ship operating too The circuit court set the bar cretion. case, and direct- presently overseeing he is high. ing project a research on manufacturer “ assembling safely us- instructions for interpret our 24.] ‘We [¶ hunting. Under this ing tree stands liberally “gener evidence with the rules of subjects study, groups three test are relaxing the traditional bar approach al ’ ” Guthrie, given assembly different instructions and testimony.” “opinion” riers to ¶61, 36, (quot monitored to measure which instructions 627 at 416 2001 SD N.W.2d 588, Daubert, at assembly quali- time and at 113 S.Ct. provide improved ing 509 U.S. omitted)). (citations 2794, 469 differ with 125 L.Ed.2d ty. qualifications plainly These 406 (Rule 102).4 2796-98, A also SDCL 19-9-2 113 S.Ct. at 125 L.Ed.2d 469.

See party expert testimony who offers is not guidelines Daubert’s criteria are flexible prove judge to a in a Daubert required applied identically that cannot be over a hearing expert’s opinion is cor- Indeed, spectrum disciplines. broad “ rect: all that must be shown is that ex- rigor ‘the measure of intellectual will pert’s testimony upon “good grounds, rests vary by expertise way the field of and the Daubert, on what known.” 509 based demonstrating expertise will also ” 590, 2795, at 113 at 125 L.Ed.2d U.S. S.Ct. Conn, vary.’ United States v. 297 F.3d (internal omitted). quotation 469 marks (7th 548, Cir.2002), denied, 556 cert. 538 Any expert’s other in an opin- deficiencies 969, 1767, U.S. 123 S.Ct. 155 L.Ed.2d 526 qualifications through ion or can be tested (2003) (quoting Tyus v. Urban Search adversary process According- at trial. (7th 256, Cir.1996), Mgmt., 102 F.3d 263 ly, we reverse the circuit court’s decision denied, 1251, 2409, cert. 520 U.S. 117 S.Ct. opinion to exclude Dr. Berkhout’s testimo- (1997)). 138 L.Ed.2d 175 We remand to ny qualifications. based on his the circuit court to examine and rule on reliability question. purpose of a Dau- hearing bert is to determine whether the “expert offered both rests on III. reliable foundation and is relevant to the next consider [¶ 26.] We Daubert, 597, task at hand.” 509 at U.S. the circuit properly granted whether court 2799, at 113 S.Ct. 125 L.Ed.2d 469. Al summary judgment all Burley’s though the circuit court ruled that Dr. In reviewing summary claims. whether opinion passed Berkhout’s Daubert’s rele judgment properly granted, “we de

vancy prong, and we now set aside its only genuine cide whether there were is ruling qualifications, on his court never sues of material fact and whether the law reliability reached prong. Daubert’s Dau Jeske, correctly applied.” Toben v. bert sets out a number of nonexclusive ¶57, 9, 32, (quot 2006 SD 718 N.W.2d 35 factors for determining whether scientific ¶98, 19, ing Lehrkamp, Heib v. 2005 SD 592-95, evidence is reliable. 509 U.S. at 875, (citing 882 SDCL 15-6- 2796-98, 113 S.Ct. at 125 L.Ed.2d 469. A “ 56(c); Keystone Plaza Condominiums court leeway’ has ‘considerable decid ¶ 28, 8, Ass’n v. 2004 Eastep, SD 676 ing in each go case ‘how to about deter 846)). 842, Burley alleged N.W.2d first mining particular expert whether testimo ” negligent because it defec ny is Heating reliable.’ Wells v. Howe & ¶ Inc., tively designed or 37, 16, manufactured the Over- Plumbing, 677 586, Kumho, speed Trainer. The court dismissed this (quoting 592 526 U.S. 238). 152, 1176, present at at claim because failed to ex S.Ct. 143 L.Ed.2d single disposes reliability pert testimony explain factor of a “[N]o “how reason Daubert, 592-95, inquiry.” at designed 509 U.S. able manufacturer could have 439, 450, (1988)) attempt (highlight- 4. "Rule 702 reflects an to liberalize 102 L.Ed.2d 445 " governing the rules the admission of ing the 'liberal thrust' of the Federal Rules testimony." Weisgram Marley v. 'general approach relaxing and their (8th Cir.1999) affd, F.3d 440, 528 U.S. ”). ‘opinion’ testimony’ traditional barriers (2000); 120 S.Ct. 145 L.Ed.2d 958 clearly admissibility The rule "is one of rather Daubert, see also U.S. at 113 S.Ct. at States, than Arcoren v. exclusion." United (citing 125 L.Ed.2d 469 Beech Aircraft (8th Cir.1991). 929 F.2d 153, 169, Corp. Rainey, 488 U.S. 109 S.Ct.

407 Enterprises, Premier Bank v. a safer alternative.”5 manufactured and/or Kolcraft Inc., “Kytec’s that own testi- Burley responds SD 686 N.W.2d 430. “We do liability” for conclusively establishes mony require plaintiff not that eliminate all other Kytec’s admission relies on her claim. She possible explanations of causation that the Trainer that it never tested ingenuity might suggest.” of counsel Id. dis- component parts before of its only negate A plaintiff need misuse of the Burley contends tributing product. product. pat Id. unless it is that if the hook Kytee also conceded that ently obvious that the accident not would bent, Overspeed Trainer would were defect, happened have the absence of a Therefore, that for argues she be unsafe. plaintiff rely merely a cannot on the fact testimony is neces- expert this claim no that an accident occurred. Id. It is not sary. expertise jury within the common of a merely injury from an accident and deduce negli- establish To

[¶ 27.] defectively that a designed. product design or gence for defective manufacture, that plaintiff a must show Burley argues Kytee should failed to use the amount the defendant thus, product, have tested the should designing manufacturing care have known that the hook was bendable. reasonably designer careful product that a However, Burley presented any has not cir- or manufacturer would use similar if the hook evidence even was benda- a exposing to avoid others to cumstances ble that such condition made the harm. foreseeable risk of Restatement Moreover, undisputed defective. it is § of Torts 395. To determine Second design altered the of the Over- Horacek designer or manufacturer whether Burley’s injury. speed before care, reasonable one must balance used Therefore, if bendability even of the knew designer what the or manufacturer arguably danger- hook created a defect or the likelihood or should have known about product, expert in the testi- ous condition severity potential harm from the mony explain jury is needed to to the how product against taking the burden of safe- Trainer, design harm. ty measures to reduce or avoid the alteration, proximately caused Horacek’s Id. Burley’s injuries. Caldwell v. John “Whether a manufac (S.D.1992) Co., Morrell & 489 N.W.2d 353 turer knew or should have known of testimony required is when the (expert risk involves technical issues particular experience issue falls outside the common easily evidentiary do not admit to which jury). aof beyond comprehen proof and which lie Indeed, expert jurors.” Safway v. sion of most Peterson ordinarily a claim required establish Co., Steel Scaffolds liability action. negligence products in a (S.D.1987). must particular, plaintiff In 127 F.3d Dancy Hyster v. establishing evidence set forth sufficient (8th Cir.1997). law, Arkansas Applying de design causal connection between the Appeals Dancy Eighth Circuit Court resulting injury. fect and the Shaffer (S.D. Inc., testimony, there held that “absent Honeywell, 1976), jury to First is no basis for the evaluate grounds, overruled on other only warn offered as an ure to claims. 5. Dr. Berkhout Burley's inadequate fail- instructions and 408 claim, expert testimony ordinarily prudent per

actions of an manufacture ” (citation omitted); therefore, son .... Id. see the circuit court required, and Raymond Corp., Anderson v. 340 F.3d summary properly granted judgment. Cir.2003) (8th 520, (reaching the 524-25 claim, In her next summary upholding same decision and Burley alleges Kytec responsible that is negligence, strict judgment for claims of (defective theory liability under a of strict liability, and failure to warn due to lack of liability design). Strict arises when a law); testimony under Arkansas any product manufacturer “sells in a defec Co., Erling v. American 230 F.3d Allsafe unreasonably dangerous tive condition to (8th Cir.2000) (unpublished) (uphold 1362 Peterson, the user or consumer....” 400 ing summary judgment negligent on fail omitted). (citations warn, at 912 “It negligent design, ure to and strict N.W.2d liability of lack of claims because the unreasonableness of the condition of law). testimony under North Dakota of product, not of conduct (cit defendant, liability.” that creates Id. duty A manufacturer’s to Co., ing Lacquer v. Coast Paint & Jackson inspect traditionally give and test does not (9th Cir.1974)). 499 F.2d 809 Unlike a independent rise to an cause of action for claim, negligence a defendant avoid cannot Rather, products liability.6 plaintiff liability simply pro because at the time of prove, among things, must other be it duction did not know or could not have cause of the manufacturer’s failure to test of product’s dangerous proclivi known Here, inspect, and the accident occurred. ties. id. a claim establish experience it is outside the common (defective liability design), Burley for strict (1) jury a capability of to determine prove must a possibility user could bend the hook dangerous “was in a and defective condi (2) defective, made the Overspeed Trainer tion when it left the manufacturer.” See if inspected would have tested or Co., 196, Engberg v. Ford Motor 87 S.D. Trainer, it would have (1973). 205, 104, Further, 109 bendable, learned that the hook was 20-9-10, (3) under SDCL manufacturer “[n]o product whether the alteration of the may ... a product of be held liable for by Kytec’s Horacek or failure to test and damages personal injury, for ... inspect a sustained proximate legal cause of Thus, Burley’s injuries. reason of the doctrine of strict respect Burley’s negligent design product defective tort based on a defect a ... Co., ("[f]or material, Reynolds testing 6. Burton v. R.J. Tobacco 397 to be substantial evi 906, (10th Cir.2005) ("plaintiff F.3d 920 must dence must be introduced of a defect in the prove that the manufacturer's failure test article”); Corp., Vassallo v. Baxter Healthcare its in a resulted defective 1, 909, (1998) 428 Mass. 696 N.E.2d 921 injury (citing plaintiff”) that caused to the (breach duty to test does not create an Laboratories, Inc., Lindquist Ayerst v. 227 action); independent cause v. Green Gener 308, 1339, (1980)); Kan. 607 P.2d 1350 Ko 507, Corp., N.J.Super. al Motors 310 709 A.2d Co., 1517, F.Supp. ciemba GD Searle & 707 ("a (Ct.App.1998) 216 failure to test or of (D.Minn.1989) ("unless 1527 the manufactur inadequate testing may be evidential as duty er’s breach of its to test leads the manu defective, explanation why design a produce product facturer to that is defective proof separate but it is not in itself basis manufacture, design, warning, injury no Co., liability”); for Oddi v. see also Ford Motor result”); can Valentine v. Baxter Healthcare (3d Cir.2000) (no indepen 234 F.3d 143 Corp., Cal.App.4th Cal.Rptr.2d 68 Pennsylvania negli dent cause of action in (1999); West v. Broderick & Bascom test). gent failure to (Iowa 1972) Rope Therefore, injury product. ... the circuit court cause of the proximate where of such properly granted summary judgment or modification an alteration was Therefore, Burley has the also this claim. productf.]” evidentiary an basis establishing

burden Lastly, Burley asserts legal cause element proximate the or for that Kytec is liable for its failure to warn her claim. dangerous condition of the Over- negligence As with her Trainer. To on a claim for speed prevail claim, Kytec Burley contends that because (failure warn), liability Burley strict to be Overspeed that the Trainer would knew that must establish bent, it if the hook were should unsafe danger 1. a existed associated with a that product a “with a hook designed have product; foreseeable use of the it.” Ac attempts to bend would withstand warning 2. an re- inadequate given was testimony is not cording Burley, expert to garding danger; the jury to a that a necessary explain to inadequate 3. as a result of the warn- used, have been there stronger hook could ing, product the was rendered defec- by making product the safer. unreasonably dangerous; tive and identify to required is unreasonably 4. the defective and dan- jury purportedly the defective how gerous condition existed at the time proximate legal cause hook was it left the control of the manufactur- this, has not Burley’s injuries. On she er; solely on offered evidence. She relies stronger product expected that a hook could 5. and did argument her not, made, it and because was reach the user without a substantial have been change defective and unforeseeable the condi- injured the defect caused because she was tion that it was in when it left the control; injury. her manufacturer’s legal 6. the defective condition was the A central element to her 34.] [¶ injuries. cause [her] (defective manu liability design or strict facture) Jury Dakota Pattern Instruction that the was the South claim is defect under strict is injuries. legal prox 150-04. “The issue cause of her While a a whether the manufacturer’s failure to ade- generally jury question, imate cause is product warn rendered the unrea- relationship alleged quately between the causal sonably dangerous regard To without to injury presumed. defect and of the failure to warn summary judgment, a motion for reasonableness survive ‘[unsup judged by negligence standards.” Peter- present “must more than (citation omitted). son, at 912 speculative state 400 N.W.2d ported conclusions “Further, ments, not be genuine is itself need do not raise [which] ” a manufacturer or seller fact.’ Bordeaux v. Shannon defective. Where sue of Schools, ¶14, may anticipate danger County 707 has reason prod- use of Paradigm particular [the] Hotel result from a (quoting N.W.2d Co., uct, give fails to [the manufacturer] Falls Hotel Mortg. Fund Sioux (ad (S.D.1994)) Inc., danger, adequate warning of such omitted). warning is in a has not sold without such ditional citation She liabili- condition within the strict evidentiary tending basis defective provided Jahnig, 283 at 560 injury ty caused doctrine.” show (citations omitted); v. Par- see also Prince than the alteration of the defect rather 1984) (Alaska alteration, achutes, Inc., though seeable and even 685 P.2d (citations omitted). bent, legally the failure to hook was warn injuries.7 prior with her caused her As Although it is not clear from claims, Burley directs this Court testi- negli- briefs whether plaintiffs appellate mony from that it did not test or remains in issue here gent failure to warn inspect put- Trainer before opinions Dr. Berkhout’s were or whether it commerce and ting into stream of claim, support quali- of such his offered Kytec acknowledged were no there fications, subject reliability finding, to a Overspeed kind on the warnings of that claim. may support be sufficient to accompany- Trainer or the instructions liability negligent failure To establish Thus, ing Kytec it. because knew that the (1) warn, prove a claimant must that the to if the Overspeed Trainer would be unsafe reasonably manufacturer knew or should bent, Burley hook was insists that this product danger- have known that the was a admission alone creates material issue likely dangerous ous or was to be when (failure fact on her claim for strict manner; reasonably used in a foreseeable warn). to (2) reasonably the manufacturer knew or that would not should have known users Although Kytec [¶ acknowl 38.] (3) danger; the that the manufac- realize edged that a hook would make the bent turer failed to exercise reasonable care unsafe, Overspeed Trainer and conceded adequately danger and warn of the or that it did not or the inspect product test (4) product; on the safe use of the instruct adequate warning to determine whether that a manufacturer under the reasonable provided against bending have should been or circumstances have same similar would hook, the fact that an accident oc danger warned of the or instructed on the Burley using curred while was the Over- (5) that claim- product; safe use of the that speed perforce Trainer does not mean (6) harmed; ant was and that the manufac- Kytee’s legal failure to warn was the cause a turer’s failure to warn or instruct was injuries. Indeed, Burley’s a manufac proximate legal or cause of the claimant’s duty inspect turer has a to test and its injury. Restatement Second Torts duty a can products and breach of this Coisman, Jahnig § 388. See also product render a a defective. (citations (S.D.1979) 557, 560 omit- cannot, inspect standing failure to test or ted). alone, resulting injury. cause See su Rather, duty n. to pra “may 6. warn is an essen [¶ 37.] Causation duty a encompass product well to test a to tial element in a failure to warn claim. Kociemba, F.Supp. discover defects.” Therefore, a to survive motion for sum (quoting Poultry at 1527 Co. v. Willmar mary judgment, Burley present must suffi Carcus Chemical bending that cient evidence to show (Minn.Ct.App.1985)). the hook a foreseeable alteration that Therefore, Burley product unreasonably dangerous. made the must estab- relationship Kytec’s a causal between She must also establish should lish warning against injury. a this fore- failure to warn and her This re- have included Court, Kytec reading 7. In its brief to this contends the instructions before the student Burley did not read the instruc- Overspeed that because tions, athletes’ use of the Trainer. proper party bring a Therefore, failure to that fact that did not read Horacek, would be Horacek. warn claim the instructions is immaterial. however, parens patriae in a role as when GILBERTSON, Chief Justice de- product’s about the quires ZINTER, Justice, how, Horacek bent concur. though even and sign hook, warnings included the lack of MEIERHENRY, [¶ 44.] SABERS Trainer was or on Justices, part and dissent in concur her injuries. As with of her legal cause part. claims, for failure causation previous be- testimony. It is requires

warn SABERS, (concurring part & Justice jury expertise of the common yond dissenting part). (1) determine unreasonably dangerous or defective way, If the trial court had its inspect to test or Kytec’s failure on based designed prod- specially manufacturers of (2) of the hook was it, bending Horacek’s man- plagiarize copy ucts could another Ky- change foreseeable testing, using, without ufacturer’s (3) duty against, to warn tec had use, instructing proper designing, bent, Kytec’s the hook was though even use. The warning improper product on legal cause of warn was the failure to unworkable, defective, dangerous could be injuries. Burley’s Dakota and could be marketed to South al- product the not been Had [¶40.] liability. almost without risk or consumers accident, may the tered before majority opinion puts Thank the God ex- evidence without have had sufficient scenario, part. at least stop to that a misuse or testimony because absent pert However, the trial court made the [¶ 46.] to infer may it be reasonable alteration errors, majority many other which the legal proxi- the Overspeed Trainer was However, injuries. failed to correct. These errors opinion cause of her mate failure to test liability Kytec’s for from an excessive view of the need impose result Trainer, “where inspect testimony qualifications and the and the harm to [Bur- link to the known therefore, summary judgment the causal a rush to testing unknovm outcome ley] exist, is the material fact issues of genuine when done, the beyond would be that was not admissibility on emphasis and excessive identi- any ... tort doctrine we can pale of opinion evidence. weight over the 265; Valentine, at Cal.Rptr.2d 81 fy.” See majority indicated the As [¶ 47.] Kociemba, at 1527. F.Supp. 707 see also 24, all that must be opinion paragraph at to ren- qualified Dr. Berkhout is [¶ 41.] upon expert’s rest shown is the failure to warn claims. opinions on der on what is known.” “good grounds, based respect to those claims Accordingly, with Daubert, at at 509 U.S. 113 S.Ct. (strict if the cir- liability negligence), omitted). (internal The quotations of Dr. Berkhout’s cuit court finds 702) (Rule one of admissi clearly “is rule reliability prong from meet the opinions supra than exclusion.” See bility rather DaubeH, will be suffi- opinions then those ¶24 Arcoren, 929 F.2d at (quoting 4n. presented these claims to be cient for 1239). majority opinion corrects hand, the other should jury. On part. error on this trial court’s unreliable, these opinions court find expert opin- proceed claims cannot without opinion majority [¶ 48.] testimony. ion of the mis- the remainder fails to correct of sum- supporting reversal takes. Facts Affirmed part, reversed 2) 1) negligence mary judgment part, and remanded. (defective Co., (S.D. design) appear strict v. Budd ¶ 1986). majority opinion at 4 as follows: it, attempt- After Horacek assembled he Moreover, Eighth Circuit to use it to see if it would release as ed held, has and this Court has noted in one the instructions indicated. He noticed cases, of our that “where there exists both sprinter’s the hook on the belt design product, defect and misuse of the downward, thereby “mak- would rotate it is assumed that each contributes to ing virtually impossible it for a ‘down- accident, product the misuse of the chop’ to release the hook and ward intervening not an cause if the misuse was ring.” chop Because the downward (quoting Griggs foreseeable.” Id. v. Fire releasing sprinter a means of from stone Tire & Rubber 513 F.2d pacer’s pull, Horacek decided to (8th Cir.) denied, 861-62 cert. 423 U.S. just the hook it enough bend to make (1975)). S.Ct. L.Ed.2d 93 ring for the easier to release. He bent Therefore, Kytec cannot escape liability using pliers hook and then tried because of the alteration. admitted time, using again. the device This he dangerous would be if the believed that ring the hook and released bent, yet testing hook was did no to ensure appropriately applied when he the down- the hook could not be bent even warn chop. ward consumers not to bend the hook. The ¶ . Supra 4. coach bent the hook so the would Because the hook would rotate purported release as the instructions it downward, virtually it was for a impossible Burley would. great injury. suffered a chop downward to release the hook and Kytec escape liability should not because ring. Obviously, it was foreseeable that the trial court majority opinion and the someone would bend this hook to allow the jury expert testimony believe the needs to release, ring especially to in view of the spoon something feed it that can be de contrary absence of instructions to the by jury duced itself under the facts chop the fact that the downward was a presented. safety addition, purported release. In if questions present These genu- bent, the hook should not have been it concerning neg- ine issues of material fact could have designed been so or made with (defective ligence, liability design). strict sturdier prevent bending. materials to The trial court supposed is to maintain an majority opinion claims has field, playing even uphill. not one slanted provided evidentiary “not tending basis supposed gate The trial court is to be the injury to show that the was caused keeper, goal keeper, not the nor the score defect rather than the alteration of the keeper. We should reverse and remand ¶ product.” Supra 34. the fact for a fair trial on all issues. bent, ring coupled that the could be It was clear error for the trial product admissions knew the court and majority opinion to affirm bent, dangerous ring would be if the summary judgment negligence, testing and did no to if ring discover (defective liability design) strict bent, when the ample could be is evidence for the expert opinion admission of Dr. Berkhout’s jury. recognizes “The law that there can testimony, by Kytec be strict of a admissions supplier though even the common sense and changed knowledge is altered or if it is jury may enough support foreseeable that the alteration would be more than to be made and change majority does not unforesee- all three causes of action. The ably opinion render the unsafe.” Zacher imposing liability Ky- claims “for the Over- inspect to test and failure tec’s 2007 SD 80 link to where the causal Training, speed DAKTRONICS, INC., Plaintiff unknown out [Burley] is the the harm to Appellant, done, beyond would be testing not come we can any ... tort doctrine pale v. ¶ Valentine, (quoting identify.” Supra CO., Ling Tang, INC. and LBW TECH 265). However, using at Cal.Rptr.2d Appellees. Defendants and dispose of claims summary judgment questions evidence and ample that have No. 24331. ad jury beyond repeatedly our goes summary judg narrow use of monished Supreme Dakota. Court South 98, Lehrkamp, ment. See Heib ¶ (Sabers, J., 889-90 704 N.W.2d May Argued on 2007. is (noting summary judgment dissenting) Aug. Decided 2007. only “when remedy to be used an extreme Lenz, clear”); truth Richards v. (S.D.1995) (noting that remedy judgment is a drastic “[s]ummary the mov granted unless

and should be right

ing party has established no clarity as to leave

judgment with such controversy”).

room for decided case is one to be This

[¶53.] affirm a jury. inappropriate “It is

by a summary judgment grant court’s

trial the non-

merely might because we believe prevailed not have at

moving party would ¶98, 46, Heib, 2005

trial.” SD (Sabers, J., dissenting) (citing at 891 Wulf Senst, 105, ¶17, 669 N.W.2d

135, 141). Summary is not to judgment be outcomes are to control cases whose

used

in doubt. genu- material issues of Because expert testimony is not

ine fact exist and Burley’s

necessarily support needed

claims, I dissent.

MEIERHENRY, (concurring in Justice dissenting part).

part (Daubert) I concur Issue join dissent on the Justice Sabers’

other issues.

Case Details

Case Name: Burley v. Kytec Innovative Sports Equipment, Inc.

Court Name: South Dakota Supreme Court

Date Published: Aug 1, 2007

Citation: 737 N.W.2d 397

Docket Number: 24132

Court Abbreviation: S.D.