The opinion
MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D), FILED
this Memorandum Decision shall not be
regarded as precedent or cited before any Sep 06 2019, 7:38 am
court except for the purpose of establishing CLERK
Indiana Supreme Court
the defense of res judicata, collateral Court of Appeals
and Tax Court
estoppel, or the law of the case.
ATTORNEYS FOR APPELLANT ATTORNEYS FOR APPELLEES
Mary Jane Lapointe Barry B. Sutton
Daniel Lapointe Kent Clark Hill PLC
Lapointe Law Firm, P.C. Birmingham, Michigan
Indianapolis, Indiana
Crystal G. Rowe
Kightlinger & Gray, LLP
New Albany, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Christopher B. Elliott, September 6, 2019
Appellant-Plaintiff, Court of Appeals Case No.
18A-PL-1450
v. Appeal from the Johnson Superior
Court
First String Products LLC, First The Honorable Marla Clark, Judge
String USA, and Firststring Trial Court Cause No.
LLC, 41D04-1512-PL-126
Appellees-Defendants.
Friedlander, Senior Judge.
Court of Appeals of Indiana | Memorandum Decision 18A-PL-1450 | September 6, 2019 Page 1 of 15
Statement of the Case
[1] Christopher B. Elliott appeals the trial court’s grant of summary judgment to
First String Products LLC, First String USA, and Firststring LLC (collectively,
“First String”). We affirm.
Issues
[2] Elliott raises two issues, which we restate as:
1. Whether the trial court erred by excluding in part the
testimony of one of Elliott’s expert witnesses.
2. Whether the trial court erred in granting First String’s
1
motion for summary judgment.
Facts and Procedural History
[3] Elliott purchased a compound bow from a friend several months before the
incident at issue. He did not receive any manuals or written instructions.
Elliott used the bow for target shooting several days a week for several months
after the purchase, without incident.
[4] On September 13, 2015, Elliott took his bow to J. Roberts Marketing, LLC
d/b/a Honey Creek Tackle (“Honey Creek”), a store that sells and installs
strings for hunting bows. Honey Creek replaced the existing bowstring with a
1
First String has filed a motion for oral argument. We deny the motion by separate order.
Court of Appeals of Indiana | Memorandum Decision 18A-PL-1450 | September 6, 2019 Page 2 of 15
string that had been manufactured by First String. The packaging for the
bowstring included only one advisement: “Professional installation of the
product is highly recommended.” Appellant’s App. Vol. II, p. 122. About a
week after Honey Creek installed the new bowstring, Elliott suffered a severe
eye injury when the bowstring broke while he was target shooting.
[5] On December 16, 2015, Elliott sued First String, alleging the bowstring was
defectively designed or manufactured, and Honey Creek, alleging negligent
installation of the bowstring. He requested a jury trial. First String and Honey
Creek separately filed answers denying liability.
[6] During the discovery process, the parties disclosed the identities of their expert
witnesses. On October 18, 2016, Elliott moved for an enlargement of time to
identify an additional expert witness. First String and Honey Creek objected to
the motion, and the trial court denied it.
[7] On November 10, 2016, First String filed a motion to exclude testimony by one
of Elliott’s designated experts, John Carlson, and a motion for summary
judgment. Honey Creek joined in First String’s motions. Elliott filed responses
in opposition to the motions. First String filed replies in support of its motions.
[8] On February 1, 2017, the trial court granted in part and denied in part First
String’s motion to exclude Carlson’s testimony. The court determined:
Carlson is an award-winning archer and has spent many, many
years shooting bows and repairing bows. He was a member of a
trade association through which he received training and
information, and he owned a business repairing bows. He is
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qualified as a skilled witness regarding the use of and operation
of cross and compound bows. He is also qualified to inspect the
bow and strings in question and testify about his observations.
This knowledge will assist the jury to understand the evidence.
As to these matters, the Motion is DENIED.
However, his testimony about whether the string was defective
and why the string in question broke is too speculative and the
risk of jury confusion is substantially outweighed by the
probative value of the evidence. He testified that he had no
knowledge of FirstString’s [sic] manufacturing process, and that
he did no testing or measurements, but relied only on his own
visual examination and a brief conversation with the Plaintiff.
As to his opinion that the string had been cut in the
manufacturing process, he admitted that there was no physical
evidence to support his opinion and that it was “an assumption
on [his] part.” He also agreed that his opinion was “a pure
guess.” This evidence is inadmissible.
2
Id. at 16.
[9] Next, the court held a hearing on First String’s motion for summary judgment.
On May 22, 2017, the court granted First String’s motion, determining it was
entitled to summary judgment on Elliott’s claims that the bowstring was
defectively designed or manufactured.
2
The trial court also rejected as “too speculative” Carlson’s testimony about whether Honey Creek acted
negligently in the course of restringing the bow. Appellant’s App. Vol. II, p. 16. That portion of the ruling is
not at issue in this appeal.
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[10] Elliott filed a motion to certify the summary judgment ruling for interlocutory
appeal. The trial court granted the motion, but this Court denied Elliott’s
request to accept jurisdiction over the appeal. Elliott v. J. Roberts Mktg., No.
41A05-1706-PL-1391 (Ind. Ct. App. July 28, 2017).
[11] On June 14, 2018, Elliott and Honey Creek jointly moved to dismiss Elliott’s
claims against Honey Creek. The trial court granted the motion and entered a
final judgment. This appeal followed.
Discussion and Decision
1. Expert Witness Testimony
[12] Elliott argues the trial court erred in barring his expert witness from testifying
about whether the bowstring was defectively manufactured and why it broke.
He claims that Carlson’s testimony on those subjects was reliable and based on
valid principles. First String responds that Carlson’s testimony about the cause
of the accident is too speculative to be admitted as evidence.
[13] We review a trial court’s decision to admit or exclude evidence, including
expert witness testimony, for an abuse of discretion. Wilkerson v. Carr, 65
N.E.3d 596 (Ind. Ct. App. 2015). A trial court abuses its discretion when its
decision “is clearly against the logic and effect of the facts and circumstances
before the court, or the reasonable, probable, and actual deductions to be drawn
therefrom.” Id. at 599-600. We presume the trial court’s evidentiary decision is
correct, and the party challenging that decision bears the burden of
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demonstrating an abuse of discretion. 5200 Keystone Ltd. Realty, Inc. v. Filmcraft
Labs., Inc., 30 N.E.3d 5 (Ind. Ct. App. 2015).
[14] In general, relevant evidence is admissible, and “[i]rrelevant evidence is not
admissible.” Ind. Evid. Rule 402. “Evidence is relevant if . . . it has any
tendency to make a fact more or less probable than it would be without the
evidence; and . . . the fact is of consequence in determining the action.” Ind.
Evid. Rule 401. Indiana Evidence Rule 702 governs the admission of expert
witness testimony, and it provides as follows:
(a) A witness who is qualified as an expert by knowledge, skill,
experience, training, or education may testify in the form of
an opinion or otherwise if the expert’s scientific, technical, or
other specialized knowledge will help the trier of fact to
understand the evidence or to determine a fact in issue.
(b) Expert scientific testimony is admissible only if the court is
satisfied that the expert testimony rests upon reliable scientific
principles.
The trial court is considered the gatekeeper for the admissibility of expert
opinion evidence under Rule 702. Bennett v. Richmond, 960 N.E.2d 782 (Ind.
2012).
[15] In Howerton v. Red Ribbon, Inc., 715 N.E.2d 963 (Ind. Ct. App. 1999), trans.
denied, Howerton became injured as he climbed out of a hotel bathtub. He had
grabbed a wall-mounted bar to help pull himself up, but the bar pulled away
from the wall as he rose, causing him to fall.
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[16] Howerton sued the bar’s manufacturer, among other defendants, claiming
negligent design and manufacture. He intended to present expert testimony
from an engineer about the bar. The manufacturer moved to exclude the
engineer’s testimony. The trial court granted the motion in part, determining
the engineer could not express an opinion as to whether the bar was defectively
manufactured or designed. The court allowed the engineer to testify about
what he observed while inspecting the bar.
[17] On appeal, Howerton argued the trial court erred in excluding in part his expert
witness’s testimony. A panel of this Court noted that, among other
shortcomings, the engineer: (1) had not tested the bar; (2) did not test any
exemplars; (3) had no knowledge about how the unit was manufactured or
installed; (4) did not know whether there were any prior incidents involving the
bar; and (5) had not performed any research on grab bars or similar units. The
Court determined the expert witness’s failure to consider these factors meant his
opinion was more likely to be “subjective belief or unsupported speculation.”
Id. at 967. The Court affirmed the trial court’s decision to exclude the
engineer’s testimony as to whether the bar was defectively designed or
manufactured.
[18] In the current case, Carlson’s opinions about the cause of the accident and
whether the bowstring was defectively manufactured have shortcomings similar
to the engineer’s testimony in Howerton. Carlson conceded he was not an
engineer or accident reconstruction expert. He had never before been asked to
determine how an archery accident had occurred. Carlson did not subject the
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bow or the bowstring to any tests beyond a visual examination. In addition, he
had no knowledge about First String’s design or manufacturing processes.
Finally, Carlson conceded that he did not know how the bowstring broke.
[19] Elliott argues that Carlson’s opinion testimony is admissible because Carlson’s
investigation (which consisted of examining the bow and bowstring and talking
with Elliott) led him to rule out user error in storing, carrying, and firing the
bow, and as a result he concluded the accident must have been caused by a
defect in the bowstring. We disagree. Speculation will not pass for an expert
opinion under Rule 702. Clark v. Sporre, 777 N.E.2d 1166 (Ind. Ct. App. 2002).
Carlson testified that his conclusion that the bowstring had been damaged
during the manufacturing process was “an assumption on my part.”
Appellant’s App. Vol. II, p. 152. We conclude the trial court did not abuse its
discretion in barring Carlson from testifying about what caused the bowstring to
break and whether the bowstring was defectively manufactured.
2. Summary Judgment
[20] Elliott next argues the trial court should not have granted First String’s motion
for summary judgment on his claim for products liability, claiming there are
disputes of fact about the circumstances and cause of the accident. First String
responds that its expert witness testimony established that it is entitled to
summary judgment, and Elliott’s evidence fails to demonstrate disputes of
material fact.
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[21] Orders for summary judgment are reviewed de novo, and we apply the same
standard of review as the trial court. AM Gen. LLC v. Armour, 46 N.E.3d 436
(Ind. 2015). Summary judgment shall be granted “if the designated evidentiary
matter shows that there is no genuine issue as to any material fact and that the
moving party is entitled to a judgment as a matter of law.” Ind. Trial Rule
56(C). The summary judgment process has two steps: the moving party must
first make the showing required by Rule 56. AM Gen., 46 N.E.3d 436. “Upon
this showing, the nonmoving party then has the burden to demonstrate that
there is a genuine issue of material fact.” Id. at 439.
[22] The Court accepts as true those facts alleged by the nonmoving party, construes
the evidence in favor of the nonmovant, and resolves all doubts against the
moving party. Breining v. Harkness, 872 N.E.2d 155 (Ind. Ct. App. 2007), trans.
denied. A trial court’s order on summary judgment is cloaked with a
presumption of validity, and the party appealing from a grant of summary
judgment must bear the burden of persuading this Court that the decision was
erroneous. Id. We may affirm the grant of summary judgment upon any basis
argued by the parties and supported by the record. Id.
[23] Indiana Code section 34-20-1-1 (1998) et seq., also known as the Indiana
Products Liability Act (“IPLA”), governs product liability claims in Indiana. A
consumer may file a claim for injuries caused by a defective product, as follows:
a person who sells, leases, or otherwise puts into the stream of
commerce any product in a defective condition unreasonably
dangerous to any user or consumer or to the user’s or consumer’s
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property is subject to liability for physical harm caused by that
product to the user or consumer or to the user’s or consumer’s
property if:
(1) that user or consumer is in the class of persons that the seller
should reasonably foresee as being subject to the harm caused by
the defective condition;
(2) the seller is engaged in the business of selling the product; and
(3) the product is expected to and does reach the user or
consumer without substantial alteration in the condition in which
the product is sold by the person sought to be held liable under
this article.
Ind. Code § 34-20-2-1 (1998).
[24] In addition:
The rule stated in [Ind. Code § 34-20-2-1] applies even if:
(1) the seller has exercised all reasonable care in the manufacture and
preparation of the product; and
(2) the user or consumer has not bought the product from or entered
into any contractual relation with the seller.
However, in an action based on an alleged design defect in the product
or based on an alleged failure to provide adequate warnings or
instructions regarding the use of the product, the party making the
claim must establish that the manufacturer or seller failed to exercise
reasonable care under the circumstances in designing the product or in
providing the warnings or instructions.
Ind. Code § 34-20-2-2 (1998).
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[25] The General Assembly defines a defective product as follows:
A product is in a defective condition under this article if, at the
time it is conveyed by the seller to another party, it is in a
condition:
(1) not contemplated by reasonable persons among those
considered expected users or consumers of the product; and
(2) that will be unreasonably dangerous to the expected user or
consumer when used in reasonably expectable ways of handling
or consumption.
Ind. Code § 34-20-4-1 (1998).
[26] A product can be defective within the meaning of the statute because of a
manufacturing defect, a defective design, or a failure to warn of dangers while
using the product. Campbell Hausfeld/Scott Fetzer Co. v. Johnson, 109 N.E.3d 953
(Ind. 2018). The General Assembly has defined a failure to provide adequate
warnings or instructions as follows:
A product is defective under this article if the seller fails to:
(1) properly package or label the product to give reasonable
warnings of danger about the product; or
(2) give reasonably complete instructions on proper use of the
product;
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when the seller, by exercising reasonable diligence, could have
made such warnings or instructions available to the user or
consumer.
Ind. Code § 34-20-4-2 (1998). The duty to warn has two parts: (1) providing
adequate instructions for safe use and (2) providing a warning as to dangers
inherent in improper use. Ford Motor Co. v. Rushford, 868 N.E.2d 806 (Ind.
2007). Whether a duty to warn exists is a question of law for the court, and
whether warnings were adequate, “which implicates breach of duty, is generally
a question for the trier of fact to resolve.” Id. at 810.
[27] Elliott claims that all three types of defect – defective design, defective
manufacture, and failure to warn – are at issue here. All three claims are based
on his argument that he did not damage the bowstring by dry firing the bow or
by other means and as a result the accident and resulting injury must have been
caused by the bowstring’s defects. The parties’ dispute hinges upon the
question of causation. “Proximate cause is also an essential element not only of
a claim of strict liability, but also a claim sounding in negligence.” U-Haul Int’l.,
Inc. v. Nulls Mach. & Mfg. Shop, 736 N.E.2d 271, 281 (Ind. Ct. App. 2000), trans.
denied. When the issue of causation is within the understanding of a lay person,
testimony of an expert witness is not necessary. Smith v. Beaty, 639 N.E.2d
1029, 1034 (Ind. Ct. App. 1994). By contrast, if the issue of causation is beyond
the understanding of a lay person, and the party moving for summary judgment
designates expert evidence negating that element, the burden shifts to the
defendant to present evidence to sustain the action. See U-Haul, 736 N.E.2d 271
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(plaintiff failed to designate expert evidence to refute expert opinion that a
defective brake valve did not cause an accident).
[28] In the current case, First String cited evidence from Scott Parrish, First String’s
president, in its motion for summary judgment. Parrish explained that he has
designed and made bowstrings since the 1980s. He further described
information about the materials that comprised the bowstring at issue and
explained that the bowstring should have been able to “hold over 1000 pounds
of tension, roughly 15 times what [it would see] during ordinary use.”
Appellant’s App. Vol. II, p. 45.
[29] Parrish also described the process by which First String manufactures
bowstrings. The process involves wrapping raw fiber materials around
mandrels, or posts, twisting them together, and applying the “serving,” which is
an additional string material that is wrapped around the base string material.
Appellees’ App. Vol. 2, p. 89. First String inspects the raw fiber materials
before use and follows a quality control process during manufacturing to detect
defects. During the manufacturing process, bowstrings are “stressed to over 400
pounds of tension” to check for durability. Appellant’s App. Vol. II, p. 46.
[30] In addition, Parrish had inspected Elliott’s bow and the broken bowstring, and
based on his observations and experience, he concluded the bowstring had been
damaged by a user during a “dry fire event” before the incident that resulted in
Elliott’s injury. Id. at 46.
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[31] First String also presented testimony from engineer George Saunders, who
inspected the bowstring and bow using a portable digital microscope, a camera,
and measuring instruments. In addition, Saunders reviewed the documents
that had been previously filed in the case. Based upon his examination and his
professional knowledge, he concluded the bowstring had been damaged due to
a dry fire event prior to Elliott’s injury. Saunders noted: (1) the bow’s cams
were warped where the bowstring touched them, and (2) upon microscopic
examination, the broken areas of the bowstring showed signs of melting and
“re-solicitation” from a “high speed, high energy short duration event” rather
than cutting. Id. at 52.
[32] Finally, First String presented an affidavit from Lorne Smith, a hunter safety
instructor and hunting accident investigator. Smith examined the bow and
bowstring, and various documents that had been filed in this case. He
concluded, “[t]he bow string exhibited signs of separation under load conditions
consistent with the dry fire event.” Id. at 57. Smith further explained the
damaged string was consistent with “what is seen in a dry fire and reported
throughout the industry.” Id. Smith further explained that the bow showed
signs of an “overdraw event,” which can cause a dry fire event. Id. at 59.
[33] We conclude from the foregoing that whether a bowstring break and a resulting
injury were caused by a defective product (through defective design,
manufacture, or failure to warn) versus a dry fire event requires specialized
knowledge and is beyond the understanding of a lay person. First String
presented expert evidence from Parrish, Saunders, and Smith to establish that
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the incident was caused by a user’s dry fire event rather than defects in design
or manufacture, or failure to warn. Elliott was obligated to provide expert
evidence in return, but the trial court barred Carlson from testifying about what
caused the bowstring to break. As a result, Elliott did not put forth any
admissible expert witness evidence to establish a dispute of material fact as to
causation. The trial court did not err in granting summary judgment to First
String as to Elliott’s product liability claims.
Conclusion
[34] For the reasons stated above, we affirm the judgment of the trial court.
[35] Judgment affirmed.
Riley, J., and Mathias, J., concur.
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