Appendix — Case Corp. v. Freeman

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IN THE UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 96-1626

DANIEL FREEMAN, .

~

Plaintiff-Appellant, * — Appeal from the

* — United States

and MARY FREEMAN, * District Court for

* the Western

Plaintiff, * District of

*« Virginia.

we

v. * Hon. Glen M.

* Williams,

CASE CORPORATION, a/k/a * Judge Presiding

J.I. Case Company, A Tenneco ss

Corporation; CASE =

INTERNATIONAL, .

*

ba

Defendants-Appellees.

Argued: May 6, 1997

Decided: July 8, 1997

Before HAMILTON and MOTZ, Circuit Judges, and

LEGG, United States District Judge for the District of

Maryland, sitting by designation.

2a

DIANA GRIBBON MOTZ, Circuit Judge:

In this product liability diversity case, after the jury

awarded the plaintiff substantial damages, the district court

granted the defendant’s motion for judgment. Because the

district court erred in concluding that the hazard presented by

defendant’s product was open and obvious as a matter of

law, and because sufficient evidence supported the jury

verdict, we reverse and remand for further proceedings.

I,

Daniel Freeman purchased a Case International 1130

tractor with a mower attachment (“1130" or “mower” or

“tractor”) to care for his lawn. On May 22, 1992, the

second time he used the 1130, Freeman suffered a serious

accident.

While Freeman was mowing his lawn near a rocky slope,

the mower blades glanced against a partially-buried boulder.

Freeman lifted his foot off the speed ratio control pedal,

bringing the tractor to a stop; he then pushed in the clutch

and brake pedals and raised the mower attachment, intending

to see if the rock had damaged the blades. Freeman had

never used the brakes before because the mower is designed

not to move unless the rider is pressing the speed ratio

control pedal. Freeman removed his foot from the clutch to

allow the blades to spin in order to check their alignment,

planning then to back away from the boulder. Suddenly, the

mower lunged forward, toward, and then over, the rocky

embankment. Freeman leapt away from the machine, rolling

forty feet down the hill. He came to rest on his stomach,

safely, but the 1130 tumbled down on top of him, with the

mower blades still activated. The blades severely and

permanently injured him.

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Freeman initiated this action against Case asserting

negligence and breach of implied warranties. Two asserted

defects in the mower provided the factual basis for both of

these theories.

First, Freeman alleged that the brake pedal, which was

located directly above the speed ratio control pedal, was too

close to that pedal so that when a rider released the clutch

and attempted to brake the mower, he risked pushing both

pedals at the same time. Simultaneous engagement caused

the 1130 to lurch forward once the clutch was released

because the brakes were unable to override the mower’s

forward propulsion.’ Freeman maintained that this defect

caused his accident.

Freeman also claimed that the 1130 was defective

because it was not equipped with an operator presence

control device, which would have discontinued power to the

mower blades as soon as Freeman’s weight left the tractor

seat. If the mower had been designed with an operator

presence control device, Freeman contended, the blades

would have been moving much more slowly, if at all, by the

time they hit him, and would not have injured him so badly.

A jury heard the case for seven days in October and

November 1995 and awarded Freeman $3.8 million in

compensatory damages. On a special verdict form the jury

expressly found that Case negligently designed the 1130 ina

manner that made it unreasonably dangerous, that the

negligence proximately caused the accident, that Freeman

was not contributorily negligent, and that he did not assume

: The mower is equipped with split brakes to allow for

separate braking of the rear wheels. The brakes can be latched

together for straight braking and apparently were so latched at the

time of the accident. Although there does not appear to be direct

evidence on this point, no party has suggested to the contrary.

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the risk of injury by voluntarily exposing himself to a known

danger. The jury also found that Case breached its “implied

warranty of merchantability and/or fitness for a particular

use,” that Freeman did not unforeseeably misuse the mower,

and that the defects that made the 1130 aie acenenes

dangerous were not open and obvious.

Case moved for judgment as a matter of law and a new

trial. On April 19, 1996, the court granted Case judgment

as a matter of law because it found that the proximity of the

pedals and the absence of the operator presence control

device were open and obvious hazards. See Freeman v. Case

Corp., 924 F. Supp. 1456, 1467-68 (W.D. Va. 1996). The

court also concluded that although Freeman had presented

sufficient evidence of an unreasonably dangerous defect in

the lack of an operator presence control device, he failed to

present sufficient evidence of an unreasonably dangerous

defect in the pedal configuration. Jd. at 1462-64.

Additionally, the court held that Freeman had failed to

establish a breach of the implied warranty of fitness for a

particular purpose and entered a conditional order granting

a new trial on that issue. Jd. at 1464. Finally, the court

preliminarily determined that the $3.8 million jury award was

excessive. Id. at 1473-74.

Freeman appeals. Because our jurisdiction is based on

diversity of citizenship — a suit by a Virginia resident

against a Delaware corporation — we must apply the law of

the state where the accident occurred, Virginia. In doing so,

we review de novo the district court’s grant of judgment as

a matter of law to determine whether the evidence presented

at trial, viewed in the light most favorable to Freeman,

would have allowed a reasonable jury to render a verdict in

his favor. See Andrade v. Mayfair Management, Inc., 88

F.3d 258, 261 (4th Cir. 1996). We review the district

court’s conditional grant of a motion for new trial for abuse

of discretion, see City of Richmond v. Madison Management

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Group, Inc., 918 F.2d 438, 458 (4th Cir. 1990), recognizing

that an error of law constitutes an abuse of discretion. See

United States v. Koon, 116 S. Ct. 2035, 2047 (1996); Cooter

& Gell v. Hartmarx Corp., 496 U.S. 384, 405 (1990).

I.

The district court held, as a matter of law, that the

mower’s asserted defects were open and obvious.’ If that

conclusion is correct, it bars Freeman’s recovery under either

a contract or tort theory. This is so because in Virginia, a

plaintiff cannot recover for a breach of an implied warranty

or negligence if the “purported defect of which the plaintiff

complains was ‘known, visible or obvious’ to him.” Wood v.

Bass Pro Shops, Inc., 462 S.E.2d 101 (Va. 1995) (citing

Brockett v. Harrell Bros., 143 S.E.2d 897, 902 (Va. 1965))

(applying open and obvious defense in warranty);

Harris-Teeter, Inc. v. Burroughs, 399 $.E.2d 801 (Va. 1991)

(applying open and obvious defense in negligence).

: Case also asserted two other affirmative defenses at trial,

which it reasserts on appeal: unforeseeable misuse and contributory

negligence. Both the jury and the district court rejected the

unforeseeable use defense and, contrary to Case’s assertion on

appeal, that decision was clearly correct. Information contained in

the 1130’s promotional literature and owner’s manual provides

solid evidence that Case contemplated Freeman’s actions, including

lawn mowing on slopes, in designing and marketing the 1130. As

to contributory negligencz, although the jury found Freeman was

not contributorily negligent, the district court granted Case

judgment as a matter of law on this point. In view of our holding

here, we need not evaluate the merits of that determination because

even if the district court were correct, contributory negligence

could not bar Freeman’s warranty claim. See Brockett v. Harrell

Bros., 143 S.E.2d 897, 902 (Va. 1965) (holding that contributory

negligence is not a defense to a breach of warranty claim).

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“A risk is open and obvious if the person using the

product is or should be aware of the risk.” Austin v. Clark

Equip. Co., 48 F.3d 833, 836 (4th Cir. 1995) (interpreting

Virginia law). Whether a hazard is open and obvious is a

question of fact, and should be left to the jury when “the

evidence [is] in conflict.” Morgen Indus., Inc. v. Vaughan,

471 S.E.2d 489, 492-93 (Va. 1996).

In granting judgment to Case, the district court

determined that the arrangement of the brake and speed ratio

control (SRC) pedals was open and obvious. While this may

be true, it is not dispositive of the issue. The relevant

question under Virginia law is not whether the defect itself

— here the pedal arrangement — was obvious, but whether

the hazard — the risk of inadvertent coengagement causing

the tractor to lurch after release of the clutch — was open

and obvious.’

For example, in Morgen, 471 S.E.2d at 491, the asserted

defect was an unguarded “nip point.” The nip point is simply

the point on a rail where the rail meets a wheel rolling on it,

a design feature clearly visible to an observer. The

plaintiff's expert testified nevertheless “that ‘nip points’ are

not dangers that are obvious to most people.” Jd. (emphasis

added). Despite testimony to the contrary, the Virginia

Supreme Court found that “the jury was entitled to accept

[the expert’s] testimony that the hazard was not open and

obvious.” Morgen, 471 S.E.2d at 492. Thus, Virginia law

looks not to whether the defect itself was obvious, but

whether the hazard was clearly apparent.

, Because we conclude that the hazard of inadvertent

coengagement of the two pedals leading to unexpected lurching

was not open and obvious, we need not reach the question of

whether the absence of an operator presence control device also

presented an open and obvious hazard.

Ta

Here, the hazard — that the pedals could easily be

inadvertently coengaged and that coengagement could cause

the mower to lurch because the brakes would not override

the SRC — is far from obvious. Indeed, an operator might

well not realize that the mower’s pedals were coengaged

unless he looked down at his feet. Unlike the accelerator

pedal in an automobile, the SRC operates on hydrostatic

principles; pressing the SRC does not affect engine speed so

the operator would not perceive a change in engine noise

due to faster engine rotation were the SRC inadvertently

engaged.

Moreover, Case’s expert testified that the brakes should

overpower the SRC if an operator simultaneously pushes both

pedals. This testimony alone would prevent a conclusion as

a matter of law that the hazard caused by the brake’s failure

to override the SRC was “obvious.” Case itself said such a

hazard did not exist. Finally, the jury examined Freeman’s

mower in detail — two jurors actually sat in the operator’s

position, observed the Bais from that perspective, and

pushed them — before the jury concluded that the defect was

not open and obvious.*

Viewing the evidence in the light most favorable to

Freeman, aS we must, the jury could reasonably have

determined that the hazard presented by the pedals’ proximity

combined with the strength of the brakes relative to the SRC

was not open and obvious. Case was not entitled to

judgment as a matter of law on this basis.

4

Case argues on appeal that a new trial is necessary merely

because some jurors sat on the tractor. See United States v. Beach,

296 F.2d 153 (4th Cir. 1961). The district court rejected this

argument, as do we. The jurors’ inspection of the tractor merely

constituted “a more critical examination of an exhibit.” Jd. at 159

(citation omitted). Such an examination is permissible. Jd.

8a

Ii.

Our conclusion that the district court erred in finding the

alleged hazards “open and obvious” as a matter of law does

not automatically require reinstatement of the jury verdict.

This is so because the district court alternatively held that

Freeman failed to present sufficient evidence that the pedal

configuration and attendant hazard constituted an

unreasonably dangerous design defect under Virginia law and

so Case might be entitled to judgment on this ground.*’ We

believe, however, that Freeman presented sufficient evidence

from which a jury could conclude that the pedal

configuration and associated risk of sudden forward

movement made the 1130 unreasonably dangerous.

To establish this defect, Freeman presented testimony by

Smith Reed, an expert in mechanical engineering, who

belonged to a number of engineering societies and had

successfully completed the examinations necessary to become

a registered professional engineer. Reed had previously

, The district court also indicated that were this court to find

the open and obvious affirmative defenses inapplicable, but that the

evidence as to the hazard presented by the pedal configuration was

insufficient, it would consider granting a new trial. The court

believed that in that case a new trial might be warranted because

the evidentiary insufficiency might have been due to its own

decision to exclude all evidence regarding competing products,

which it feared might have been erroneous. See Alevromagiros v.

Hechinger Co., 993 F.2d 417, 420-21 (4th Cir. 1993) (finding that

“actual industry practices,” in the aggregate, could indicate

consumer expectations, one way to prove unreasonably dangerous

design) (citing Sexton v. Bell Helmets, Inc., 926 F.2d 331, 337

(4th Cir. 1991)). The district court never granted a conditional new

trial on this issue and, of course, since we hold that Freeman has

presented sufficient evidence to the jury to sustain its verdict, a

new trial to allow Freeman to present additional evidence would

obviously be unnecessary.

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testified as an expert in mechanical engineering in federal

court in the Eastern District of Virginia — most recently just

a week before trial. Reed also had spent several years

working for one of Case’s competitors designing mowers and

tractors. Case did not object to Reed’s engineering

qualifications or expertise in the field of mechanical

engineering. Nor did Case maintain that Reed’s testimony

was not relevant. But Case did assert that Reed’s testimony

was legally insufficient.

The district court rejected Case’s argument and permitted

Reed to testify before the jury.° Post-trial, however, the

. The district court refused to hold Reed’s testimony

inadmissible under Daubert v. Merrell Dow Pharms., Inc., 509

U.S. 579 (1993), reasoning that Daubert only applied to scientific

testimony and not technical testimony, like Reed’s. We need not

here decide the question that the Supreme Court left open, i.e.

whether the Daubert analysis applies outside the scientific context,

because Case misunderstands the Daubert test in attempting to

apply it here. Daubert instructs district courts to make a

“preliminary assessment of whether the reasoning or methodology”

underlying expert testimony “is scientifically valid.” Jd. at 590

n.8, 592-93. Essentially, Case does not challenge Reed’s

“reasoning or methodology” but his ultimate conclusion, that the

1130 is unreasonably dangerous. In cases like this one, where an

expert relies on his experience and training and not a particular

methodology to reach his conclusions, “application of the Daubert

[analysis] is unwarranted.” Compton v. Subaru of America, Inc..,

82 F.3d 1513, 1518 (10th Cir.), cert. denied, 117 S. Ct. 611

(1996); see also United States v. Jones, 107 F.3d 1147, 1158 (6th

Cir. 1997) (holding Daubert inapplicable to testimony based on

experience or training); United States v. 14.38 Acres of Land,

More or Less Situated in LeFlore County, 80 F.3d 1074, 1078-79

(5th Cir. 1996) (same); Jacobelli Constr., Inc. v. County of

Monroe, 32 F.3d 19, 25 (2d Cir. 1994) (same). Thus, we affirm

the district court’s rejection of the Daubert challenge to Reed’s

(continued...)

10a

court concluded that although it was a “difficult question,”

Reed’s testimony was insufficient to support the jury’s

finding. Freeman, 924 F. Supp. at 1463. In reaching this

conclusion, the court relied heavily on our decision in

Alevromagiros v. Hechinger, 993 F.2d at 417, 421 (4th Cir.

1993). There, we refused to credit an expert witness who

“testified to no customs of the trade, referred to no literature

in the field, and did not identify the reasonable expectations

of customers,” but merely gave “his own subjective

opinion.” Jd. Alevromagiros, however, does not compel the

conclusion that Reed’s testimony was insufficient in this case.

Unlike the expert in Alevromagiros, Reed did not simply

opine on the basis of his “own subjective opinion.” Rather,

he applied his experience and training in tractor design in

reviewing numerous published materials, including papers by

the Society of Agricultural Engineers, extensive industry

literature, various tractor specifications, and trade journals

before reaching his conclusions. Reed also inspected

Freeman’s 1130 and performed various tests on it, which

indicated that the tractor did indeed lurch when both the SRC

and brake pedals were pressed and the clutch released.’ In

*(...continued)

testimony, albeit on somewhat different grounds.

Case protests that Reed’s testing of the 1130 was

inadmissible because the testing conditions were not sufficiently

similar to those at the time of the accident, since the tractor was

no longer in its original condition. However, the district court

acted within its discretion in admitting this testimony. Such tests

are only inadmissible when testing conditions are “so dissimilar to

the conditions existing at the time of the accident *. . . in such

fundamental and important respects that the risk of prejudice

to . . . [the defendant] outweighs the probative value of the

evidence.” Chase v. General Motors Corp., 856 F.2d 17, 20 (4th

Cir. 1988) (citing Gladhill v. General Motors Corp., 743 F.2d

(continued...)

lla

view of the published authorities, his inspection of the 1130,

and his “sound engineering judgment,” Reed opined that the

1130’s pedal design was unreasonably dangerous. Although

Reed could not cite any published source that analyzed the

1130’s specific configuration and found it defective, Reed

clearly applied his expertise and knowledge of the published

sources and drew from his detailed inspection of the product

itself in evaluating the configuration at issue here.

Significantly, he identified specific published materials that

had directly guided his analysis. Virginia law is clear that an

expert opinion need not find direct support in published

sources; some analogies will have to be drawn. See Ford

Motor Co. v. Bartholomew, 297 S.E.2d 675, 679 (Va. 1982)

(finding that when “safety standards . . . had never been

promulgated, . . . it was a matter of opinion of trained

experts what design was safe for its intended use”).

Case thoroughly cross-examined Reed and at that time

highlighted what it perceived to be deficiencies in his

analysis. Case also introduced the testimony of its own

expert, who asserted a contrary theory. Case does not

challenge the court’s instructions to the jury as to burden of

proof -or as to how the jury was to assess the expert

testimony. Thus, the court afforded Case the “appropriate

means” for discrediting the expert testimony it found suspect.

See Daubert, 509 U.S. at 596 (“Vigorous cross-examination,

7(...continued)

1049, 1052 (4th Cir. 1984)). Here, a Case employee

acknowledged that the only significant change in the condition of

the tractor after the accident was that its battery had died.

In addition, Case inaccurately claims that neither Freeman

nor Reed “made any reference to simultaneous clutch use as a

defect in the tractor.” In fact, both Freeman and Reed testified at

length regarding the relationship between clutch use and the

accident. See J.A. 227-29, 264, 346-61, 667-70, 677.

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presentation of contrary evidence, and careful instruction on

the burden of proof are the traditional and appropriate means

of attacking shaky but admissible evidence.”).

Reed’s testimony regarding the pedal arrangement,

particularly when combined with the jury’s opportunity to

inspect the tractor itself and judge the likelihood (or not) of

inadvertent coengagement, was sufficient to sustain the jury’s

verdict that the pedal design and associated risk of lurching

was unreasonably dangerous.

IV.

The district court believed that a new trial would be

required, even if it erred in its ruling on the obviousness of

the design defect, because of the imprecise phrasing of the

warranty question on the special verdict form.

The special verdict form asked the jurors to determine

whether “the defendant breached an implied warranty of

merchantability and/or fitness for a particular purpose;” the

jurors answered yes. But after trial the district court

concluded as a matter of law that there had been no proof of

breach of the warranty of fitness for a particular purpose

because Freeman presented no evidence that he relied on

Case in selecting a product particularly suited for his needs.

See generally Medcom, Inc. v. C. Arthur Weaver Co., 348

S.E.2d 243, 246 (Va. 1986) (discussing elements of breach

of implied warranty of fitness for a particular purpose). For

this reason, the court believed a retrial would be necessary

to determine whether Case breached the warranty of

merchantability because the jury could have answered the

special verdict question in the affirmative without having

found a breach of that warranty.

In the case at hand, however, it would not have been

possible for the jury to find a breach of the warranty of

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fitness for a particular purpose without also finding a breach

of the warranty of merchantability. When, as here, the

buyer’s particular purpose is the same as the intended

purpose of the product (lawn mowing), the two warranties

are identical, except that to prove breach of the warranty of

fitness for a particular purpose, the buyer must additionally

prove that he informed the seller of his purpose and relied on

the seller’s judgment in selecting a product appropriate for

that purpose. See Walter H.E. Jaeger, Warranties of

Merchantability and Fitness for Use: Recent Developments,

16 Rutgers L. Rev. 493, 506-07 (1962), cited with approval

in Featherall v. Firestone Tire & Rubber Co., 252 S.E.2d

358, 367 (Va. 1979). These additional elements are the ones

Freeman failed to prove.

Therefore, all of the elements of a breach of the

warranty of merchantability would have been established by

a jury finding of a breach of the warranty of fitness for a

particular purpose. The jury could not have found a breach

of the warranty of fitness for a particular purpose without

also finding a breach of the warranty of merchantability. For

this reason, the district court’s conditional grant of new trial

on the breach of warranty issue constituted a clear error of

law and, therefore, an abuse of its discretion. See Koon, 116

S. Ct. at 2035; Cooter & Gell, 496 U.S. at 405.

vy

Finally, the district court made a preliminary

determination that the jury’s award of $3.8 million was

“excessive.” Freeman, 924 F. Supp. at 1473-74. In view of

its grant of judgment to Case, the court did not explain its

rationale nor did it make a final decision on the matter.

Accordingly, we have no way of assessing this holding.

However, we are confident that on remand the district court

will carefully consider this question and will, as it indicated

it would if the occasion presented itself, “further elaborate on

l4a

its decision that the verdict is excessive.” Id. at 1474. We

reverse and remand for further proceedings consistent with

this opinion.

REVERSED AND REMANDED.

lSa

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 96-1626

CA-94-63-A

DANIEL FREEMAN, Plaintiff - Appellant

and

MARY FREEMAN, Plaintiff

Vv.

CASE CORPORATION, a/k/a J.I. Case Company,

A Tenneco Corporation; CASE INTERNATIONAL,

Defendants - Appellees

Filed: August 5, 1997

On Petition for Rehearing with Suggestion for

Rehearing In Banc

The appellees’ petition for rehearing and suggestion for

rehearing in banc were submitted to this Court. As no

member of this Court or the panel requested a poll on the

suggestion for rehearing in banc, and

As the panel considered the petition for rehearing and is

of the opinion that it should be denied,

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IT IS ORDERED that the petition for rehearing and

suggestion for rehearing in banc are denied.

For the Court,

/s/ Patricia §. Connor

CLERK

1st una Lae

en Due eg

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IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF VIRGINIA

ABINGDON DIVISION

DANIEL FREEMAN, _)

) CIVIL ACTION NO. 94-0063

Plaintiff, )

v. ) MEMORANDUM OPINION

)

CASE CORPORATION, ) BY: THE HONORABLE

) GLEN M. WILLIAMS

Defendant. )

Filed: April 19, 1996

This products liability case is before the court pursuant

to 28 U.S.C. § 1332. Plaintiff Daniel Freeman was injured

in a tractor accident. Freeman sued defendant Case

Corporation (“Case”) under theories of defective design and

breach of warranty, and, following a jury trial, was awarded

$3.8 million. Case now moves for judgment as a matter of

law, or, in the alternative, for a new trial, and also moves

for remittitur of the damages awarded against it. The motion

for judgment as a matter of law is granted.

FACTS

Daniel Freeman (“Freeman”) is an experienced owner

and operator of a wide variety of heavy and light industrial,

home, and recreational equipment. Before buying the Case

1130 tractor that is the subject of this case, Freeman had

used a smaller John Deere riding mower for many years to

mow his lawn. The Deere comes equipped with an operator

presence control (“OPC”), a safety device that quickly stops

the mower blades if the operator’s weight leaves the seat.

Freeman decided to purchase a Case 1130 after seeing and

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admiring one owned by an acquaintance. He visited a

dealer, where he requested a Case 1130 and asked that it be

fitted with a belly mower attachment. The tractor, so

equipped, was later delivered to his home.

The Case 1130 does not have an OPC, but it comes with

a rollbar and a seat belt. Together, a rollbar and seat belt

are known in the trade as a Rollover Protection System, or

ROPS. A ROPS is designed to protect an operator in a

tractor tipover situation: the rollbar keeps the tractor from

rolling all the way over, or provides protection if it does, and

the seat belt keeps the operator within the zone of safety.

Upon receiving his Case 1130, Freeman examined

portions of the accompanying manual, and also inspected the

tractor itself. Prior to the accident, he had mowed his yard

twice and spread fertilizer once with the tractor. On the day

of his injury, Freeman was not using the seat belt. While

mowing near a steep embankment in his back yard, Freeman

drove the tractor over a partially buried boulder. Although

the Deere had never done so, the mower blades of the Case

1130, being set slightly lower, struck the top of the boulder.

Freeman immediately stopped the tractor, depressed the

clutch to disengage power to the blades and the wheels, and

raised the mower deck so that the blades would not strike the

rock when restarted. His plan was to then release the clutch

to spin the blades in the air, in order to determine if they had

been warped by striking the rock. Freeman claims that his

foot was on the brake pedal, which is located in close

proximity to the speed ratio control pedal (“SRC”).’ He in

fact had both the brake and the SRC depressed. Thus, when

he released the clutch, the tractor moved forward over the

edge of the embankment. Freeman was unable to stop or to

regain control of the tractor. He leapt from the machine, but

; This pedal, which makes the tractor move forward, is

analogous to an automobile’s accelerator.

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was struck by the blades and severely injured as the tractor

rolled down the hill.

ANALYSIS

A postverdict motion for judgment as a matter of law is

evaluated by the same standard as one made during trial.

See Crown Central Petroleum Corp. v. Brice, 427 F. Supp.

638, 640 (1977). The standard for a party to receive

judgment as a matter of law is a high one. The court will

construe all evidence and inferences in the light most

favorable to the non-moving party, and will grant the motion

only if a reasonable trier of fact could reach no other

conclusion. Winant v. Bostic, 5 F.3d 767, 774 (4th Cir.

1993). In doing so, the court will consider neither the

weight of the evidence nor the credibility of witnesses.

Singer v. Duncan, 45 F.3d 823, 826 (4th Cir. 1995); L.M.

Everhart Const. v. Jefferson County, 2 F.3d 48, 51 (4th Cir.

1993).

The standard for granting a new trial is lower than that

for judgment as a matter of law. Under Rule 59, the court

will weigh the evidence and the credibility of the witnesses,

and may in its discretion grant a new trial if it considers the

verdict to be against the clear weight of the evidence.

Poynter v. Ratcliff, 874 F.2d 219, 223 (4th Cir. 1989).

With these standards in mind, the court now turns to the

issues before it. Case’s brief sets forth seven major

arguments or classes of arguments: (1) Freeman failed to

present sufficient evidence of an unreasonably dangerous

design defect; (2) Freeman failed to present sufficient

evidence that the implied warranty of fitness for a particular

purpose was breached; (3) Freeman failed to prove that the

alleged defects were the proximate cause of his injuries; (4)

the expert testimony offered by Freeman should have been

excluded as inadmissible; (5) the affirmative defenses of open

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and obvious danger, contributory negligence, assumption of

the risk, and unforeseeable misuse bar recovery; (6) two

jurors improperly tested the tractor during a showing; and (7)

the verdict was excessive. Although the court’s decision to

grant Case’s motion for judgment as a matter of law renders

many of Case’s arguments moot, the issues raised are of

legal interest and are likely to be useful to any court that may

review this decision. Each shall be discussed in turn.

I. Evidence of Unreasonably Dangerous Defect

At trial, Freeman attempted to prove two design defects

in the Case 1130 tractor. First, he presented evidence that

the brake pedal was placed dangerously close to the SRC,

and that this proximity created an unacceptable risk of

inadvertent engagement of the SRC by an operator trying to

brake. Second, he contended that the absence of an OPC

made the tractor unreasonably dangerous.

Under Virginia law, two factors are relevant to the

determination of whether a product contains an unreasonably

dangerous defect: industry or government safety standards,

and consumer expectations. Alevromagiros v. Hechinger

Co., 993 F.2d 417, 421 (4th Cir. 1993); Mears v. General

Motors, 896 F. Supp. 548, 551 (E.D. Va. 1995). Proving

a violation either of a safety standard or of consumer

expectations can discharge a plaintiff's burden.

Alevromagiros, 993 F.2d at 422.? If published safety

: The court misstated this fact in its decision in Lemons vy.

Ryder Truck Rental, Inc., 906 F. Supp. 328, 331 (W.D. Va.

1995), where it said that the issue of consumer expectations is

reached only if the plaintiff fails to demonstrate violation of a

safety standard. The court knows of no Virginia case in which

consumer expectations were considered without first or

simultaneously considering the proof offered of violation of a

(continued...)

2la

standards exist, the court will rely on these. Otherwise, it is

“a matter of opinion of trained experts what design was safe

for its intended use.” Ford Motor Co. v. Bartholomew, 224

Va. 421, 430, 297 S.E.2d 675, 679 (1982). Merely

conclusory expert testimony without substantial foundation

will not discharge this burden. Compare id. (accepting

sufficiency of expert testimony supported by manuals, data

compiled by federal agency, consultation with other experts,

experiments with product in question and other similar

products, and mockup of product) with Alevromagiros, 993

F.2d at 421 (rejecting sufficiency of expert testimony based

solely on inspection of the product in question).’

To demonstrate consumer expectations, the plaintiff may

use “evidence of actual industry practices, knowledge at the

time of other injuries, knowledge of dangers, published

literature, and . . . direct evidence of what reasonable

purchasers consider defective.” Alevromagiros, 993 F.2d at

420-21 (citing Sexton v. Bell Helmets, 926 F.2d 331, 337

(4th Cir. 1991) (applying Kentucky law)). Expert testimony

on this issue may not simply be conclusory, but “requires a

factual examination of what society demanded or expected

from a product.” Sexton, 926 F.2d at 337.

2(.. continued)

safety standard, but it appears that such an analysis is possible

under Virginia law.

’ This is not an issue of the admissibility of proffered expert

testimony, see generally Part IV of this Opinion, but simply a

restatement of the familiar rule that a party with the burden of

proof must come forward with enough evidence to sustain a verdict

in its favor or face an adverse judgment as a matter of law. See

Alevromagiros, 993 F.2d at 421.

A. Pedal Configuration

Freeman offered the expert testimony of Smith Reed, a

mechanical engineer, to demonstrate that both the pedal

configuration and absence of an OPC were unreasonably

dangerous design defects. Reed testified to no published

government or industry standard violated by the pedal

configuration.‘ The court must therefore determine whether

Reed’s testimony was sufficient to establish violation of an

applicable unpublished safety standard. Bartholomew, 224

Va. at 430, 297 S.E.2d at 679. Reed stated that, in

preparation for his testimony, he reviewed extensive trade

literature and notes pertaining to the design of the Case 1130

and of other tractors of varying sizes and configurations, the

design of tractors generally, trade journals, accident

Statistics, industry and military specifications, and other

assorted materials. Transcript for 10/25/95 at 18-24. Reed

inspected the tractor that injured Freeman, and performed

“tests” on it by manipulating various controls, operating the

tractor while attempting to recreate the sudden forward

movement described by Freeman, and placing his foot on the

brake and SRC pedals to test his theory that both could be

engaged simultaneously. Jd. at 28-29. He stated that his

opinion that the pedal configuration was a design defect was

based on “sound engineering judgment,” on “what the

competition is doing,” and on various standards that were

either not proven or not relevant. Jd. at 39-40. Reed’s

“sound engineering judgment” was not a basis for his

opinion, but rather a mere restatement of that opinion. Reed

characterized his “sound engineering judgment” as follows:

“[w]hen one knows that it is possible to cause a machine to

unexpectedly come on, spontaneously start moving, and

. Although Reed testified in a deposition that ANSI 335.4

had been violated by the pedal configuration, he stated at trial that

upon reconsideration he could not maintain this position. Partial

Trial Transcript (“Transcript”) for 10/25/95 at 62.

23a

when one has the ability to minimize or eliminate the

problem by the design and when the design has not been

eliminated . . . the design should not be released for

production.” Jd. at 39.

The foundation for Reed’s opinion is somewhere between

the extensive testing found sufficient in Bartholomew and the

near-total absence of evidence rejected in Alevromagiros. The

primary difference between Alevromagiros and this case is

that Reed reviewed extensive literature prior to making his

inspection. Whether this is sufficient is a difficult question,

given the dearth of guidance on this subject in Virginia law.

The court holds that Reed’s testimony was not sufficient to

carry plaintiff's burden, since nothing suggests that the

literature reviewed significantly bolstered Reed’s opinion that

the design of the pedals was defective.°

This holding would ordinarily require the court to enter

judgment as a matter of law for Case on this issue, but the

court declines to do so, since Freeman’s inability to prove a

design defect may have been due to judicial error rather than

his own lack of evidence. Reed’s reference to the design

practices of Case’s competitors, one of the bases he

mentioned for his opinion that the pedals were defective, may

have foreshadowed illuminating testimony, both as to the

issue of the applicable safety standard in the industry and as

to what consumers expected. See Redman v. Sentry Group,

Inc., 907 F. Supp. 180, 183 n.2 (W.D. Va. 1995) (in

absence of published standards, industry practice can be

evidence of industry standards); Alevromagiros, 993 F.2d at

420-21 (industry practice relevant to consumer expectations).

: It is not clear that plaintiff could under any circumstances

sustain the burden of proving that the pedal configuration of the

tractor was defective. See footnote 12, infra. Because of its

decision to grant judgment as a matter of law to Case on other

grounds, the court does not reach this issue.

24a

However, the court did not permit either side to introduce

evidence of industry practice with respect to pedal placement.

Transcript for 10/25/95 at 41. It is unclear whether this was

erroneous under applicable Fourth Circuit law.

Alevromagiros, which states that industry practices are

relevant to determining consumer expectations, 993 F.2d at

420, also upholds a District Court’s decision to exclude

evidence of safety features on a competing produc, id. at

421-22.° While it is unnecessary to reach the issue at this

time due to its decision to grant Case’s motion for judgment

as a matter of law, if that decision is reversed and the case

remanded, the court may then find it necessary to grant a

new trial at which evidence of industry practices with respect

to pedal placement would be heard.

B. Operator Presence Control

Reed testified that the absence of an OPC violated ANSI

B71.1, a standard that by its terms applies to “lawn and

garden” tractors. Both sides vigorously contested the issue

of whether the Case 1130 is a lawn and garden tractor,

presenting evidence about its size, weight, power, and

“drawbar pull,” a measure of pulling capacity. Although the

1990 ANSI definition of “lawn and garden tractor” excludes

those with a drawbar pull over 1500 pounds, which the Case

1130 in question apparently exceeded, no such definition

: The language used hints that it may have been the fact that

only one competing product was offered rather than the relevance

of industry practice generally that led to the District Court’s

decision to exclude the proffered evidence. Alevromagiros, 993

F.2d at 422 (noting that the trial judge stated that “bringing in one

particular competitor’s ladder . . . and making that an industry

standard, that is terribly misleading”) (emphasis added); Anderson

v. National R.R. Passenger Corp., 866 F. Supp. 937, 944 (E.D.

Va. 1994) (citing Alevromagiros for proposition that a single

example cannot be used to establish an industry standard).

25a

existed at the time the tractor was manufactured. In

addition, Freeman presented evidence that Case advertised

the tractor for suburban lawn care applications. The jury

could quite reasonably have concluded that ANSI B71.1 was

applicable to this tractor, and such a conclusion is not against

the clear weight of the evidence. The court thus denies

Case’s motion for judgment as a matter of law and its motion

for a new trial with respect to this issue.

II. Evidence of Breach of Implied Warranties

Case contends that Freeman did not present sufficient

evidence that it breached the implied warranty of fitness for

a particular purpose. Under Virginia law, to establish a

breach of the warranty of fitness, Freeman must prove (1)

that Case had reason to know the particular purpose for

which Freeman required the equipment; (2) that Case had

reason to know Freeman was relying upon Case’s skill or

judgment to furnish equipment meeting his requirements; and

(3) that Freeman in fact relied upon Case’s skill or judgment.

Va. Code § 8.2-315; Medcom, Inc. v. C. Arthur Weaver Co.,

Inc., 232 Va. 80, 84-85, 348 S.E.2d 243, 246 (1986). Case

points to Freeman’s testimony that he decided to buy a Case

1130 because he had seen a privately owned one in operation

and “liked the looks” of it, Transcript for 10/23/95 at 51,

and that when he purchased the tractor he did not speak to

anyone at the dealership about the tractor and did not seek

the advice of the dealer about it. Transcript for 10/24/95 at

61. Freeman responds that he ordered a mower attachment

with the tractor, without specifying the model he desired, and

was supplied with a particular model. This, he contends, is

sufficient to create a jury question as to the issue of the

warranty of fitness for a particular purpose. While this

argument may be valid if the mower attachment was alleged

to be defective, it appears from the facts that this particular

piece of equipment worked all too well. The court grants

26a

Case’s motion for judgment as a matter of law as to the

implied warranty of fitness for a particular purpose.

In addition to the warranty of fitness, Freeman argued

that Case breached the implied warranty of merchantability.

The court assumes without deciding that the evidence

submitted as to defect was sufficient to carry the burden of

proving a breach of this warranty. Unfortunately, the issue

of breach of the two implied warranties was presented to the

jury in the form of a combined special interrogatory, asking

“[djo you find by a preponderance of the evidence that the

defendant breached an implied warranty of merchantability

and/or fitness for a particular use and that the vehicle was

thereby unreasonably dangerous?” The jury responded to this

question in the affirmative. Because it is conceivable that the

jury believed that the warranty of fitness for a particular

purpose was breached and the warranty of merchantability

was not, the court cannot conclude that the insufficiency of

evidence of breach of the warranty of fitness is moot.

Should it be required to confront the issue due to a remand,

the court will be forced to order a new trial as to the issue of

the warranty of merchantability.’

Ill. Proximate Cause

Virginia applies a “but for” test to tort liability. See

Wells v. Whittaker, 207 Va. 616, 622, 151 S.E.2d 422, 428

(1966). Unless the alleged defect is a proximate cause of the

’ The only way that the court could be forced to address this

issue is if the judgment as a matter of law is reversed as to the

issue of open and obvious defect (which bars recovery under both

negligence and implied warranty theories) but upheld as to the

issue of contributory negligence (which bars recovery only under

negligence). This would squarely present the issue of whether

some implied warranty was in fact breached, since Freeman could

then recover only if he proved a breach of warranty.

27a

plaintiff's injuries, there can be no recovery. Butler v.

Navistar International Transp. Corp., 809 F. Supp. 1202,

1207 (W.D. Va. 1991). The burden is on the plaintiff to

show to a “reasonable certainty” that the alleged defect

caused his injury. Stokes v. L. Geismar, S.A., 815 F. Supp.

904, 908 (B.D. Va. 1993), aff'd 16 F.3d 411 (4th Cir.

1994). Freeman’s theory of the accident is that he

inadvertently engaged the SRC pedal while deliberately

engaging the brake, and that this was due to the dangerous

proximity of these pedals. Freeman maintains that the

tractor would not have rolled forward after being fully

stopped unless the SRC was engaged, see, e.g., Transcript

for 10/24/95 at 93-96, and so his theory directly puts to the

finder of fact the question of whether the alleged defect was

a proximate cause of his engaging the SRC. Given the jury’s

conclusion that Case is liable, it is obvious that it accepted

Freeman’s theory of the accident and thus found that the

defect was a proximate cause of the accident. This finding

was not against the clear weight of the evidence. Case’s

motions for judgment as a matter of law and for a new trial

are denied as to this issue.

Case argues that the absence of an OPC was not a

proximate cause of the accident.* According to the applicable

industry standard, ANSI B71.1, an OPC must stop the

mower blades within five seconds. Case contends that there

is no evidence that the accident took more than five seconds

to occur. Since the blades would therefore have been turning

. It is not clear that the absence of an OPC is relevant to

causing “the accident,” if that term means the chain of events that

caused the tractor to roll down the hill. Cf. discussion of Virginia

law on nonuse of seat belts in Part V(B) of this Opinion (stating

that, under Virginia law, evidence of nonuse of seat belts is

excluded because irrelevant to the cause of the accident). Because

it finds for Freeman on the issue of causation as to both alleged

defects, however, the court does not reach this issue.

28a

when they struck Freeman, Case argues, the absence of an

OPC is not a cause of the accident.

The evidence put on by Freeman was sufficient to

discharge his burden of proof on this issue, because the jury

could have concluded from the evidence presented that more

than five seconds elapsed from the time Freeman left the seat

to the time when he was struck by the blades. It is

undisputed that Freeman jumped from the tractor and

traveled forty feet from where he left the tractor.’ After

finding himself there, he thought “for an instant” that he was

safe, but was then struck by the tractor as it rolled down the

hill behind him. There was evidence that the tractor struck

at least one tree before rolling over Freeman, that the blades

struck numerous rocks and other objects that may have

stopped them had an OPC disengaged the power to them, and

that the tractor did not travel the forty feet to Freeman in a

straight line. The jury could well have concluded from this

reconstniction of events that it took the tractor more than

five seconds to reach the point where Freeman was struck.

In addition, although Freeman’s expert testified that he did

not know if Freeman would have been injured less severely

if the blades had been moving more slowly, it is well within

the competence of a lay juror to conclude that blades

disengaged from the engine and decelerating would do less

damage than blades at full speed and power. The jury’s

conclusion that the defects alleged were the proximate cause

of Freeman’s injury was not against the weight of the

evidence. Case’s motions are denied as to the issue of

proximate cause.

? Whether Freeman traveled the forty feet entirely in the air

Or partially on the ground is a disputed fact, Transcript for

10/24/95 at 104-107, and one properly left to the jury to decide.

29a

IV. Admissibility of Expert Testimony

On September 12, 1995, Case filed a motion in limine

seeking the exclusion of the testimony of Freeman's

mechanical engineering expert, Reed, under the authority of

Daubert v. Merrell Dow Pharmaceuticals, 509 U.S. 579, 113

S. Ct. 2786 (1993). In an unpublished memorandum

opinion, the court denied the motion, holding that Daubert

applies only to scientific evidence, of which Reed’s proposed

testimony was not an example. Case now revisits its

arguments and asks the court to reconsider its ruling in light

of seven recently decided cases. The authorities cited by

Case are virtually identical in kind to those the court has

previously rejected, and so the court will not again, as it did

before, review each in detail. Of the cases cited, three

involved testimony that was clearly scientific in nature.

Dunbar v. Shaklee Corp., 31 F.3d 638, 647 n. 15 (8th Cir.

1994) (toxicology and genetic mutation); U.S. v. Rincon, 984

F.2d 1003 (9th Cir. 1993), aff'd without opinion sub nom

Rincon v. U.S., 510 U.S. 801, 114 S. Ct. 41 (1993)

(psychological testimony about the reliability of eyewitness

identification); Arnold v. Riddell, Inc., 882 F. Supp. 979

(D.Kan. 1995) (biomechanical aspects of spinal cord injury).

Two of the cases are inapplicable because they did not apply

Daubert in a relevant fashion. Buckman v. Bombardier

Corp., 893 F. Supp. 547 (E.D.N.C. 1995) (applying Daubert

where party offering testimony claimed that it was scientific

and based on comparative tests); Anderson v. National R.R.

Pass. Corp., 866 F. Supp. 937, 943-45 (B.D. Va. 1994)

(citing Daubert for proposition that expert testimony must be

based on some specialized knowledge and must have a

factual basis).

The court notes that there appears to be a number of

cases that apply Daubert to testimony the scientific nature of

which is doubtful. See, e.g., American & Foreign Ins. Co.,

45 F.3d 135 (6th Cir. 1995) (tcstimony of an electrical

30a

engineer as to testing he performed on a circuit breaker);

Pestel v. Vermeer Manufacturing Co., 64 F.3d 382 (8th Cir.

1995) (testimony about need for safety guard on stump

cutter); Byrnes v. Honda Motor Co., 887 F. Supp. 279 (S.D.

Fla. 1994) (testimony about need for leg protection on

motorcycle). Upon close scrutiny of Daubert and related

authorities, the court can only conclude that these cases are

misguided. The context of Daubert, the validity of

“reanalysis” of raw data of epidemiological studies, was

unquestionably scientific, and in its reasoning the Supreme

Court relied heavily upon works in the history and

philosophy of science. See 113 S. Ct. at 2796-97 (citing

Carl Hempel’s Philosophy of Natural Science, Karl Popper's

Conjectures and Refutations, and several scholarly books and

articles on peer review). Furthermore, the Court explicitly

stated that its holding was addressed to the context of

scientific evidence. After quoting Fed. R. Evid. 702’s

mandate that “[i]f scientific, technical, or other specialized

knowledge will assist the trier of fact to understand the

evidence or to determine a fact in issue” an expert “may

testify thereto,” the Court set forth the standards governing

testimony pertaining to “scientific . . . knowledge,” and

Clarified in a footnote that “Rule 702 also applies to

‘technical, or other specialized knowledge.’ Our discussion

is limited to the scientific context because that is the nature

of the expertise offered here.”. 113 S. Ct. at 2795, 2795 n.

8 (emphasis added).

That Daubert is limited to a ~ ‘entific context has been

widely recognized. The Ninth Circuit, addressing the

admissibility of the evidence in the Daubert case on remand,

recognized that the Supreme Court’s decision was addressed

to the “scientific . . . knowledge” aspect of Rule 702.

Daubert v. Merrell Dow Pharmaceuticals, 43 F.3d 1311,

1316 (9th Cir. 1995). In another case remanded to the Ninth

Circuit for reconsideration in light of Daubert, the court

again recognized that Daubert applied only to scientific

3la

testimony. U.S. v. Rincon, 28 F.3d 921, 923 n. 3 (9th Cir.

1994). A correct understanding of Daubert is not limited to

the Ninth Circuit. See, e.g., Benedi v. McNeil-P.P.C., Inc.,

66 F.3d 1378, 1383 (4th Cir. 1995) (stating that Daubert

interpreted “the admissibility of expert scientific evidence”);

Iacobelli Const., Inc. v. County of Monroe, 32 F.3d 19, 25

(2d Cir. 1994) (Daubert inapplicable to expert testimony on

construction site conditions, contract documents and project

results, because such testimony is not scientific); Dunbar, 31

F.3d at 647 n. 15 (listing 33 cases applying Daubert to such

patently scientific matters as DNA analysis, chromatography,

economic testimony, and psychological syndromes). The

court must conclude that cases applying Daubert to merely

technical testimony are aberrational. In any event, unless

and until it is compelled by binding precedent to extend

Daubert to a nonscientific context such as the examination of

a tractor by a mechanical engineer, this court shall decline to

do so. Case’s motions as to the admissibility of Reed’s

testimony are denied.

V. Affirmative Defenses

Case has advanced four affirmative defenses which,

though distinct, share a core of relevant facts and so will be

addressed together. Case contends that the alleged defects

were open and obvious, that Freeman’s actions amounted to

contributory negligence, that Freeman assumed the risk of his

injury, and that Freeman’s actions constituted unforeseeable

misuse of the tractor. The court shall address each defense

in turn.”°

= These four defenses are so closely related that they are

routinely conflated or at least analyzed simultaneously, but are

nonetheless distinct. The law applicable to each defense is set forth

in some detail in the appropriate section, but for ease of reference,

the following chart distills the applicable Virginia law. For each

(continued...)

32a

A. Open and obvious

Most jurisdictions have rejected the open and obvious

defense to claims of design defect. See Restatement (Third)

of Torts, Tentative Draft No. 2, § 2, Comment at V(4)

(enumerating cases). Although the Fourth Circuit has

recently held open the possibility that Virginia law could

move in this direction, Austin v. Clark Equip. Co., 48 F.3d

833, 837 (4th Cir. 1995) (Austin I) (“[w]e are not excluding

the possibility that there may be an unreasonably dangerous

product with an open and obvious defect”), it is clear that

Virginia has not adopted the Restatement view. See Austin

v. Clark Equip. Co., 821 F. Supp. 1130, 1133 (W.D. Va.

1993) (Austin IT) (manufacturer not liable for defective design

©. continued)

defense, the chart indicates whether it serves as a bar in negligence

and in warranty, whether an objective or a subjective standard

applies, and whose point of view is relevant. “Warranty” in this

context refers to any implied warranty, whether of merchantability

or fitness for a particular purpose. See Wood v. Bass Pro Shops,

250 Va. 297, 300-01, 462 S.E.2d 101, 103 (1995) (setting forth

which defenses are applicable to “implied warranty” cases and

which are not). The entries in the point of view row assume a

conventional case in which an injured plaintiff sues a defendant;

appropriate adjustments must be made if the positions are reversed,

or if there are counterclaims.

Contrib. Assumpt. Unfrsbi.

Open/Obvious Negl. Risk Misuse

Bar in Negligence Yes Yes Yes Yes

Bar in Warranty Yes No No Yes

Obj./Subj. Standard Objective Objective | Subjective Objective

Whose Point of View Plaintiff's Plaintiff's Plaintiff's | Defendant's

33a

where danger is open and obvious); Harris-Teeter, Inc. ¥.

Burroughs, 241 Va. 1, 4, 399 S.E.2d 801, 802 (1991)

(provider of cake not liable in negligence where plastic

decoration swallowed by plaintiff was in plain view); Wood

v. Bass Pro Shops, Inc., 250 Va. 297, 301, 462 S.E.2d 101,

103 (1995) (no recovery under implied warranty where

alleged defect is “known, visible or obvious”). A plaintiff

will be barred from recovering if he actually did know or

should have known of the risk that caused his injury. Austin

I, 48 F.3d at 836 (stating that risk is open and obvious if

user “is or should be aware of the obvious danger”); Scott v.

City of Lynchburg, 241 Va. 64, 66-67, 399 S.E.2d 809, 810

(1991) (actual knowledge of open and obvious danger bars

recovery); Harris-Teeter, 241 Va. at 4, 397 S.E.2d at 802

(holding that danger in plain view bars recovery, without

discussing any evidence of actual knowledge); Spangler v.

Kranco, 481 F.2d 373, 375 (3d Cir. 1973) (holding that lack

of bell on crane was open and obvious without discussing

any evidence of actual knowledge). The open and obvious

rule applies both to negligence and to brach of warranty

claims. Wood, 250 Va. at 301, 462 S.E.2d at 103. This

rule of law has been applied to bar recovery where the

plaintiff complains of the absence of such features as a safety

canopy on a coal mine roof bolter, Belcher v. J.H. Fletcher

& Co., No. 93-2424, 1995 U.S. App. LEXIS 11659, 1995

WL 300030 (4th Cir. May 18, 1995), a bell on a crane,

Spangler, 481 F.2d at 375, and rear view mirrors, warning

lights and alarms on a forklift, Austin I, 48 F.3d at 836. The

question of whether an alleged defect is open and obvious 1s

for the jury to decide, unless reasonable minds could not

differ on the issue. Id.

Case contends that the dangerous proximity of the brake

and SRC pedals is patently obvious upon inspection, and that

the absence of an OPC is obvious upon inspecting the

machine, rising from the seat while the mower is operating,

or reading the manual. Freeman responds that while the

SX

34a

proximity of the brake and SRC pedals may be obvious, the

danger presented by that proximity is not obvious. In

addition, Freeman argues, the OPC is a hidden mechanism,

not readily apparent or visible to an operator.

Freeman’s argument that knowledge of the proximity of

the pedals does not amount to knowledge of the danger posed

by that proximity is a distinction without a difference. Such

a distinction could under some circumstances defeat an open

and obvious defense, as for example when a mechanism in

plain view has an obscure and unexpected effect when

engaged. No such circumstances exist here.’ Freeman

knew where the SRC pedal was, knew that it was close to the

brake, and knew that depressing it would cause the tractor to

move forward. Transcript for 11/1/95 at 7-14, 7-35. The

risk of depressing the SRC, or of depressing a pedal where

he knew the SRC to be without looking to see which pedal

was depressed, was an open and obvious one.”

Prior to hearing testimony, the court felt that this issue was

uncertain enough to go to the jury. Memorandum Opinion of Oct.

13, 1995 at 12. For the reasons stated, the court is no longer of

this opinion.

oe The situation is analogous to that posed by the proximity

of the brake and accelerator pedals in an automobile. In part to

facilitate rapid access to both, these pedals are adjacent to one

another and are often close enough to permit simultaneous

engagement. This fact does not, however, constitute defective

design. See Jackson vy. Mazda Motor of America, Inc., 872 F.

Supp. 1464, 1467 (D.Md. 1995) (where plaintiff complains of

sudden acceleration and testified that her foot was on the brake,

but the only plausible cause of accident was inadvertent

engagement of accelerator, no design defect exists); Wells v. Jeep

Corp., 532 P.2d 595, 597-98 (Wyo. 1975) (fact that driver

inadvertently engaged accelerator while depressing brake does not

render placement of accelerator and brake pedals defective).

Because of the court’s holding today granting judgment as a matter

(continued...)

35a

The absence of an OPC was also open and obvious.

Freeman had extensive experience with an OPC-equipped

John Deere riding mower, had worked all his adult life with

machinery of all types, had inspected the Case 1130 and read

portions of the operator’s manual, and had mowed the lawn

twice with it prior to the accident.” Although an OPC is a

“hidden” mechanism, it is one that has a noticeable effect

upon the operation of a tractor-mower: when the operator’s

weight leaves the seat, the blades stop within five seconds.

Given Freeman’s experience, he either knew or should have

known that the Case 1130 lacked an OPC, and so this

absence was open and obvious.

The court has previously ruled that the pedal

configuration and the absence of an OPC were open and

obvious as a matter of law. Transcript for 10/31/95 at

6A-25 to 6A-26. This ruling was made in the course of

dismissing Freeman’s failure to warn claim against Case, but

it disposes of the issues of negligence and breach of warranty

as well.“ Although some of the Virginia cases establishing

the open and obvious defense are failure to warn cases, see,

2”. continued)

of law to Case, it is unnecessary to address the issue of whether a

design defect could be proven to exist with respect to the tractor’s

pedal configuration. The court’s holding at this time is simply that

the pedal configuration, if defective, was open and obvious.

<a Although the tractor had nineteen hours of use recorded on

a use monitor, no more than two uses of the tractor to mow his

lawn, and one to spread fertilizer, for at least four hours of total

use, are clearly attributable to Freeman. See Transcript for 11/1/95

at 7-13, 7-26 to 7-27, Transcript for 10/24/95 at 82.

™ This ruling was made from the bench on the sixth day of

trial, and the applicability of the open and obvious defense to the

design defect and warranty claims was neither briefed nor argued

at that time.

36a

e.g., Austin I, 48 F.3d at 836; Spangler, 481 F.2d at 375, it

is clear that the defense is applicable outside of the failure to

warn context. See, e.g., Wood, 250 Va. at 301, 462 S.E.2d

at 103 (implied warranty); Harris-Teeter, 241 Va. at 4, 399

S.E.2d at 802 (negligence). Judgment as a matter of law is

accordingly granted to Case as to both the design defect and

the implied warranty claims because the risks were open and

obvious.

B. Contributory negligence

Virginia follows a contributory negligence regime for

products liability cases grounded in negligence. Jones v.

Meat Packers Equip. Co., 723 F.2d 370, 373 (4th Cir.

1983); Hoban v. Gnunman Corp., 717 F. Supp. 1129, 1136

(E.D. Va. 1989). A plaintiff's contributory negligence will

not, however, bar his recovery under a breach of warranty

theory. Wood, 250 Va. at 300-01, 462 S.E.2d at 103. A

plaintiff's negligence claim is barred by his contributory

negligence if he failed to act as a reasonable person would

have acted for his own safety under the circumstances.

Artrip v. E.E. Berry Equip. Co., 240 Va. 354, 358, 397

S.E.2d 821, 824 (1990). The standard is an objective one.

Id. Unless reasonable minds could not differ on the issue, it

is one for jury to decide. Id. at 358, 397 S.E.2d at 823.

Case contends that the following actions by Freeman

constitute contributory negligence: failing to read the

operating manuals and the safety warnings therein in detail,

failing to wear a seat belt, and operating the tractor close to

an embankment. Once the tractor was stopped at the edge of

the embankment, Case argues that Freeman compounded his

earlier acts of negligence by reengaging the mower blade

rather than retreating in reverse or taking steps to immobilize

37a

the tractor, and by “popping his foot off the clutch,” rather

than releasing it slowly.”

As an initial matter, the fact that Freeman was not

wearing a seat belt cannot be taken into consideration under

Virginia law. Virginia has never permitted evidence of

failure to wear a seat belt to demonstrate the injured party’s

negligence in automobile cases. Until 1989, such evidence

could be presented by the defense to reduce damages, but

this practice was eliminated by Va. Code § 46.2-1094(E),

which forbids evidence of nonuse of seat belts in a motor

vehicle with respect to both liability and damages. Although

no Virginia court has addressed the issue of whether

automotive seat belt laws pertain also to the use of seat belts

in a nonautomotive context, the Fourth Circuit has addressed

the admissibility of evidence of nonuse of safety devices

generally under Virginia law. Garrett v. Desa Industries,

Inc., 705 F.2d 721 (4th Cir. 1983). The plaintiff in Garrett

was injured while using a stud driver without the included

safety goggles. The trial judge permitted the defendant to

raise the issue of nonuse of the safety goggles, and the

Fourth Circuit reversed, analogizing the nonuse to the failure

to wear a seat belt. The court considered persuasive the

rationale of the leading Virginia case on the exclusion of

evidence of failure to wear a seat belt, Wilson v. Volkswagen

of America, 445 F. Supp. 1368 (E.D. Va. 1978):

™ How quickly Freeman removed his foot from the clutch

was a matter of significant dispute at trial. Transcript for 11/1/95

at 7-21; Transcript for 10/24/95 at 91-93. According to Freeman,

however, the Case 1130 transmission is such that the motor

engages fully and without slippage regardless of the speed of clutch

release. Transcript for 10/24/95 at 92. The analysis that follows

assumes without deciding that Freeman released the clutch in a

normal fashion, as he now claims.

38a

We believe that the analysis in Wilson is both

persuasive and directly applicable to the nonuse of

safety goggles. The stud driver would have

exploded whether or not Garrett was wearing safety

goggles. His nonuse of the goggles was not a

proximate cause of that explosion. Thus, since Desa

did not demonstrate that Garrett’s eye injury could

have been avoided or would have been less severe

had he been wearing the goggles, the requested jury

instructions [that nonuse of the goggles was not

evidence of contributory negligence] should have

been granted. Furthermore, on remand, Desa may

not introduce evidence of the nonuse unless and until

it demonstrates the extent to which Garrett’s injuries

could have been avoided by wearing safety goggles.

Garrett, 705 F.2d at 726. Although it is clear that in 1983

the Fourth Circuit, faced with the case at bar, would have

permitted evidence of nonuse of the seat belt to show

mitigation of damages, it appears that it would not permit

even this use today. At the time of the Garrett decision, Va.

Code § 46.2-1094(E) did not exist. The Fourth Circuit

simply applied then-existing Virginia law applicable to seat

belts to the issue of nonuse of safety devices generally,

finding the purpose and logic of the seat belt law analogous.

Since neither the purpose nor the logic has changed, the

court must conclude that nonuse of a safety device cannot be

used in Virginia either in support of a defense to liability or

in mitigation of damages. Freeman’s nonuse of the seat belt

will therefore not be considered in the court’s analysis of any

of Case’s affirmative defenses."*

” Given Virginia’s expansion of the scope of the exclusion

of evidence of nonuse of a seat belt since Garrett, the Fourth

Circuit may wish to reconsider its holding in that case, at least in

circumstances such as are now before the court. Faced with the

(continued...)

39a

The court now turns to Case’s remaining contentions.

Freeman’s alleged failure to read the operator’s manual is not

so clear as Case maintains. Freeman testified to reading the

manual, or parts thereof, in at least two places in his

deposition. Freeman Depo. at 127, 155. In addition, he

testified to the fact that he examined each of the controls and

its function before starting the tractor for the first time. Jd.

at 115. The Case 1130 has a number of instructions printed

directly on or near the controls, and so his inspection could

well have included reading these as well. The court is most

unwilling to conclude that a failure to read an operator's

manual cover to cover is so clearly negligent that reasonable

minds could not disagree. Cf. Butler v. Navistar

International Transp. Corp., 809 F. Supp. 1202, 1208 n. 9

(W.D. Va. 1991) (warning in tractor manual does not

discharge manufacturer’s duty to warn absent evidence that

plaintiff read the manual). The matter was properly

submitted to the jury, and the jury’s decision was not against

the weight of the evidence.

16 continued)

problem of providing for operator safety in the event of tractor

tipover, Case provided an integrated safety system well-designed

for the purpose, the ROPS. The failure of an operator to use a seat

belt renders a ROPS useless as a safety device, reducing a system

that would ordinarily prevent or greatly reduce injury to a nullity.

It seems unduly harsh not to permit Case to argue that this nonuse

was relevant either to negligence or to mitigation of damages, but

such appears to be the law in Virginia. Compare Long v. Deere &

Co., 715 P.2d 1023, 1030 (Kan. 1986) (finding that Kansas statute

excluding evidence of nonuse of seat belts in automobile cases has

no bearing on issue of nonuse of seat belts with construction

machinery “under conditions which admittedly will result in death

or injury in a roll over unless seat belts are used”). There is no

reason to suppose that the concerns that motivated the Virginia

General Assembly to bar evidence of the nonuse of seat belts in

automobile cases are identical to those relevant outside that

context.

40a

The testimony presented at trial on the issue of operating

the tractor near an embankment was somewhat ambiguous as

to the degree of risk presented. For example, Case’s expert,

Bernard Ross, testified that:

the operator’s manual says clearly that you should

avoid operating on slopes and be very careful. And

I’m not condemning Mr. Freeman for trying to mow

his Jawn up to the, close to the edge, but it is

mentioned in the operator’s manual that this is risky

business, I mean, requires more caution, and more

concern, and attention.

Transcript for 10/26/95 at 4-114 to 4-115 (testimony of

Bernard Ross). It appears that simply operating the tractor

close to an embankment is not necessarily contributory

negligence. However, Freeman’s decision to mow near the

embankment must be considered in combination with his

other actions. The evidence showed that Freeman stopped

the tractor at or near the edge of the embankment, placed his

foot in the immediate area where he knew the SRC pedal to

be without checking to ensure that his foot was not on that

pedal, depressed the SRC together with the brake,”’ and then

released the clutch. Freeman knew that releasing the clutch

with the SRC engaged would cause the tractor to move

forward, Transcript for 11/1/95 at 7-35, but did not ensure

that his foot was not on the SRC. He chose to do this

rather than turn off the tractor, as the manual recommends

when the tractor strikes an obstruction. He also could have

” Freeman testified that he was “positive” that he had his

foot on the brake, Transcript for 10/24/95 at 6, and Freeman’s

theory of the accident is that the tractor could not have moved

forward unless the SRC was also depressed. Transcript for

10/24/95 at 93-95. The issue of whether Freeman did or did not

actually depress the brake pedal is not relevant to the court’s

reasoning on this issue.

4la

eliminated the risk by placing the tractor in neutral or by

backing away from the edge before restarting the blades.

Transcript for 10/24/95 at 86; Transcript for 11/1/95 at 7-35.

The court holds as a matter of law that Freeman did not act

as a reasonable person would have acted for his own safety

under the circumstances. Artrip, 240 Va. at 358, 397 S.E.2d

at 824. This holding is in accord with, though not dependent

upon, Virginia case law pro iding that a person who is aware

of an open and obvious condition and, without excuse,

forgets about the condition or ignores it thereby commits

contributory negligence as a matter of law. See Scott v. City

of Lynchburg, 241 Va. 64, 66-67, 399 S.E.2d 809, 810-11

(1991) (enumerating cases). Case’s motion for judgment as

a matter of law is therefore granted as to the negligence

claim due to Freeman’s contributory negligence."

C. Assumption of the risk

Assumption of the risk bars a plaintiff's recovery in

negligence, but not under a warranty claim. Wood, 250 Va.

at 301, 462 S.E.2d at 103. This defense focuses on the

injured person’s subjective state of mind, asking whether

“plaintiff fully understood the nature and extent of a known

danger and voluntarily exposed himself to it.” Artrip, 240

Va. at 358, 397 S.E.2d at 824 (citing Philip Morris Inc. v.

Emerson, 235 Va. 380, 402-402, 368 S.E.2d 268, 280

(1988)). Unless reasonable minds could not differ on the

issue, it is for the jury to decide. Artrip, 240 Va. at 358,

397 S.E.2d at 823.

Case contends that Freeman was aware of the proximity

of the brake and SRC pedals, of the risks of mowing near an

embankment, and of the danger posed by not wearing his

- As stated at the beginning of this section, this holding has

no effect on the breach of warranty claim. Wood, 250 Va. at

300-01, 462 S.E.2d at 103.

42a

seat belt, and that he voluntarily exposed himself to these

risks. As before, the nonuse of the seat belt cannot be

considered.

That a risk is open and obvious does not establish that a

plaintiff “fully understood the nature and extent” of it. Jd.

Although the court today holds that the proximity of the

brake and SRC pedals and the lack of an OPC were open and

obvious, and that Freeman’s actions constituted contributory

negligence, the burden on Case as to these defenses was

simply to show that Freeman knew or should have known of

the risks. Austin I, 48 F.3d at 836 (open and obvious);

Artrip, 240 Va. at 358, 397 S.E.2d at 823 (contributory

negligence). The evidence was ample to discharge this

burden, demonstrating as it did Freeman’s extensive

experience and the carelessness of his actions in light of that

experience. However, this evidence does not rise to the level

of discharging Case’s burden to demonstrate “what the

particular plaintiff in fact sees, knows, understands and

appreciates.” Philip Morris, 235 Va. at 402, 368 S.E.2d at

280 (quoting Restatement (Second) of Torts § 496D,

Comment c (1965)) (emphasis added). The evidence

presented was sufficient to support an inference that Freeman

was actually aware of the risks, but was not so overwhelming

as to compel such an inference. Because the court cannot

Say aS a matter of law either that Freeman did or did not

assume the risk of his injury, this issue was properly a

matter for the jury, and the jury’s decision was not against

the clear weight of the evidence. Case’s motions are

accordingly denied as to this point.

D. Unforeseeable misuse

The defense of unforeseeabie misuse is available to a

defendant sued under either negligence or warranty theories.

Wood, 250 Va. at 301, 462 S.E.2d at 103. Although the

language used to describe this defense sometimes suggests

43a

that the manufacturer’s subjective state of mind is at issue,

see Featherall v. Firestone, 219 Va. 949, 964, 252 S.E.2d

358, 367 (1979) (“unforeseen” misuse); Turner v. Manning,

Maxwell & Moore, 216 Va. 245, 252, 217 S.E.2d 863, 869

(no liability when product used in manner “not intended” for

it), the decisions make it clear that an ordinary

reasonableness standard applies. See id. (holding that use of

crane to pry fused metal parts free was not a “reasonably

foreseeable purpose”); Featherall, 219 Va. at 964, 252

S.E.2d at 368 (use of different manufacturer’s parts with a

product is not a use that “should have been expected” by

defendant). The issue is thus whether Freeman misused the

tractor in a fashion not reasonably foreseeable to Case.

The actions that allegedly constitute misuse are

Freeman’s failure to wear a seat belt, which cannot be

considered, his decision to mow near the embankment, and

his “popping” the clutch. Case contends that under Virginia

law, a manufacturer is entitled to a presumption that its

warnings will be heeded. This does not appear to be true.

In Besser Company v. Hansen, 243 Va. 267, 415 S.E.2d 138

(1992), the case cited for this proposition, the court

considered whether the manufacturer reasonably should have

foreseen that an operator would fail to heed the warnings on

a control panel. The court reasoned that “[njor did Besser

have reason to know or foresee that an operator would not

realize that danger and heed the warnings on the panel.” Id.

at 277, 415 S.E.2d at 144 (emphasis added). In reaching

this conclusion, the court relied in part upon the testimony of

a witness that the risk posed by ignoring the panel

instructions was obvious. Jd. Such testimony would of

course be irrelevant if a manufacturer was entitled to a

presumption that a failure to heed its warnings is

unforeseeable.

The court must therefore consider whether Case has

demonstrated that it should not reasonably have foreseen such

44a

actions by operators as Freeman’s decision to mow near an

embankment. Case did not meet this burden. The use of

riding mowers and of tractors with belly mowers on slopes,

whether wise or not, is not an unknown phenomenon. In

addition, the trial testimony of Case witness Bernard Ross,

excerpted above, suggests only that “operating on slopes”

shoulc be avoided, and that mowing close to an embankment

requires an increased level of caution. Transcript for

10/26/95 at 4-114 to 4-115. This evidence is insufficient to

establish that Case did not and should not reasonably have

foreseen that its 1130-series tractor might be used near the

edge of an embankment.

As for Freeman’s “popping” the clutch, evidence was

presented from which the jury could conclude that Freeman

released the clutch in a normal fashion. In any event, the

rapid release of a clutch, an action Case characterizes as

appropriate only during drag-racing or in an emergency, is

certainly not unknown outside that context. For example,

one of the difficult tasks in learning to drive an automobile

with a manual transmission is mastering the skill of releasing

the clutch neither too slowly nor too quickly. A person who,

like Freeman, does not expect that his action will cause his

conveyance to move, may well release the clutch rapidly, and

this action may well be foreseeable. The foreseeability of

this action, if indeed it occurred, was properly a matter for

the jury.

Because the issue of foreseeable misuse was properly left

to the jury, and because the jury’s decision as to this issue

was not against the clear weight of the evidence, Case’s

motions are denied.

VI. Jusor Testing of Tractor

At trial the court allowed a “show” of the tractor

involved in the accident, during which the parties pointed out

45a

various features that they believed to be important to the

issue of liability. One of these features, the placement of the

brake and SRC pedals, was the subject of a significant

amount of expert testimony and a number of photographs.

After the demonstration, the court granted the request of two

jurors to sit in the tractor in order to inspect it more fully.

During this examination, the jurors observed the placement

of the pedals from the operator’s viewpoint, and both placed

their feet on the brake and SRC pedals and depressed them

several times.

Case asserts that these actions were improper and

resulted in the consideration of extraneous material by the

jury, improperly influencing its decision. Case maintains

that this conduct requires a new trial on all issues. This

court concludes that the inspection and examination of the

tractor by the two jurors in the presence of the court, counsel

for both parties, and the remaining jurors, was not improper

and does not mandate a new trial.

Both parties rely on United States v. Beach, 296 F.2d

153 (4th Cir. 1961). In Beach, the jury convicted the

defendant of perjury for testifying that he had not heard

adding machines in a house he often visited. During its

deliberations, the jury requested and received an electric drop

cord. The Fourth Circuit held that sending the drop cord to

the jury was error entitling defendant to a new trial if the

jury used the cord to experiment with the adding machines.

Id. at 159.

The present case is fundamentally different from Beach

because of the circumstances and subject matter involved. In

the case at bar, the only object considered was the tractor

submitted for examination before open court. No other

device was employed to test the tractor. Two of the jurors

merely mounted the tractor and depressed its pedals in order

to inspect it more closely. Such closer examinations are not

46a

prohibited. In fact, Beach expressly allows closer

inspections of exhibits on the part of the jurors even outside

the presence of the court or counsel. Beach provides that

“the mere making of a more critical examination of an

exhibit than was made during trial is not objectionable.” Jd.

at 159."

The Tenth Circuit has also addressed the issue of closer

examination of evidence by jurors. Taylor v. Reo Motors,

Inc. , 275 F.2d 699 (10th Cir. 1960), involved consolidated

actions for wrongful death and property damage against the

manufacturer of a motor-freight tractor for alleged

manufacturing defects in the heat exchange mechanism of the

fuel system. During trial the heat exchange mechanism was

introduced into evidence and was dismantled and reassembled

by expert witnesses. The jury was permitted to take the

mechanism to the jury room during its deliberations. In the

course of its deliberations, the jury dismantled and

reassembled the heat exchanger with pocket knives and other

tools belonging to the jury. The Tenth Circuit held that the

jurors’ actions were proper for the purpose of testing the

validity of statements made in open court. Jd. at 705-706.

Although it is not binding, this court finds much of the

Tenth Circuit’s reasoning persuasive. While not necessarily

willing to condone the unsupervised dismantling and

reassembling of mechanical objects by jurors, the court

agrees with TJaylor’s holding that it is within the court’s

discretion to allow jurors to examine more closely evidence

that has been the subject of relevant testimony. As noted, in

the present case the jurors heard and saw substantial

“5 Beachfurther provides by way of example that “the use of

a magnifying glass not introduced in evidence, without the

knowledge and consent of the parties and without permission of the

court, is not reversible error where such action involves merely a

more critical examination of an exhibit.” Jd.

47a

testimony concerning the location of the pedals. This was a

major point of contention bearing on the issue of liability.

The fact that jurors sat in the tractor and depressed the

pedals does not constitute “extraneous evidence,” as Case

claims. On the contrary, the jurors’ actions constituted a

more critical examination of the evidence. Consequently, the

court finds that Case is not entitled to a new trial based upon

the actions of the two jurors.

Vil. Remittitur

Case argues that the jury’s award of $3.8 million is so

excessive aS to warrant a new trial or a remittitur of a

portion of the award. Under Virginia law, a court has

several options if it concludes that a monetary award is

excessive. If “the evidence does not preponderate in favor

of either party and the damage award is so large that it

appears to be solely the product of sympathy,” the court may

order a new trial on all issues. Bartholomew, 224 Va. at

434, 297 S.B.2d at 682. If the monetary award 1s “out of

proportion to the injuries suffered,” but not so large that the

jury’s verdict as to liability is impeached, the court may put

the plaintiff to the choice of accepting a remittitur or facing

a new trial, Va. Code § 8.01-383.1, or may grant the

defendant a new trial limited to the issue of damages, Va.

Code § 8.01-383. Bartholomew, 224 Va. at 434, 297 S.E.2d

at 682. The trial court has broad discretion to determine

whether an award is excessive and what steps to take if it

concludes that it is. Jd. The Virginia Supreme Court has

stated the duty of a trial judge thus:

While a trial judge may not arbitrarily substitute his

opinion for that of the jury, he has both the power

and the duty to correct a verdict which he finds so

excessive as to shock the conscience of the court or

to compel the conclusion that the verdict was the

48a

product of passion or prejudice or some

misunderstanding of the facts or the law.

Hogan v. Carter & Grinstead, 226 Va. 361, 372, 310 S.E.2d

666, 672 (1983). The court is of the opinion that the

damages awarded were excessive. Because it grants

judgment as a matter of law to Case, it is unnecessary to

address this issue now.” Should the court’s judgment in

favor of Case be reversed, however, the court will on

remand decide whether to grant a new trial on all issues,

grant a new trial on the issue of damages only, or put the

plaintiff to the choice of accepting a remittitur or facing a

new trial. This decision is presently unnecessary considering

the other holdings of the court. Should the issue recur, the

court will further elaborate on its decision that the verdict is

excessive and will hear additional argument of counsel on

these issues.

CONCLUSION

For the reasons stated, the court grants defendant Case’s

motion for judgment as a matter of law. An appropriate

order shall be entered this day.

The Clerk is directed to send certified copies of this

Opinion to all counsel of record. This case shall be stricken

from the docket.

ENTER: This 19 day of April, 1996.

/s/ Glen M, Williams

SENIOR UNITED STATES DISTRICT COURT JUDGE

»

It would be difficult to analyze the issue of damages

properly now, since the relevant portions of the trial testimony

have not yet been transcribed.

49a

IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF VIRGINIA

ABINGDON DIVISION

DANIEL FREEMAN and )

MARY FREEMAN, )

)

Plaintiffs, ) CIVIL ACTION

) NO. 94-0063-A

)

v. ) ORDER

)

CASE CORPORATION, ) BY: THE HONORABLE

) GLEN M. WILLIAMS

Defendant. )

[Filed October 13, 1995]

For reasons stated in a memorandum opinion entered this

day, it is ADJUDGED AND ORDERED as follows:

Defendants’ motion for exclusion of expert testimony is

denied. Defendant’s motion for summary judgment is

denied.

The Clerk is directed to send certified copies of this

Order to all counsel of record.

ENTER: This 13th day of October, 1995.

/s/ Glen M._ Williams

SENIOR UNITED STATES DISTRICT COURT JUDGE

eee ed

50a

IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF VIRGINIA

ABINGDON DIVISION

DANIEL FREEMAN and )

MARY FREEMAN, )

)

Plaintiffs, ) CIVIL ACTION

) NO. 94-0063-A

)

MEMORANDUM OPINION

Vv. )

)

CASE CORPORATION, ) BY: THE HONORABLE

) GLEN M. WILLIAMS

)

Defendant.

[Filed October 13, 1995]

In this products liability action arising from an accident

involving a tractor-mower, defendant Case Corporation

(“Case”) moves to have the testimony of an expert witness

excluded and moves for summary judgment. Both motions

are denied.

DEFENDANT’S MOTION TO EXCLUDE

EXPERT TESTIMONY

Plaintiff Daniel Freeman (“Freeman”) was injured when

the Case 1130 tractor he was using to mow his yard rolled

down a hill in a way which brought him into contact with the

mower blades. Plaintiff has offered the testimony of Smith

Reed, an expert in mechanical engineering, in order to

identify a number of alleged defects in the design of the

tractor which he claims are responsible for Pilaintiff’s

injuries.

5la

The admissibility of expert testimony is governed by

Fed. R. Evid. 702.’ Defendant moves to have this testimony

excluded on the ground that it does not satisfy the standards

imposed by FRE 702 as interpreted by Daubert v. Merrell

Dow Pharmaceuticals, 113 S. Ct. 2786, 125 L.Ed. 2d 469

(1993). Daubert requires that evidence within its scope be

“ground[ed] in the methods and procedures of scicace” and

“supported by appropriate validation.” Jd., 125 L.Ed. 2d

at 481. Defendant urges that the testimony is defective

because it lacks adequate scientific methodology and

reproducible test results.

The first hurdle which Defendant must clear is that of

establishing that Daubert is applicable to the type of

testimony offered by Plaintiff. Daubert, the leading case on

the evaluation of expert testimony at the boundaries of

mainstream science, involved the controversial technique of

“reanalysis” of the raw data of epidemiological studies to

reach conclusions contradicting those of the original studies.

The decision probes deeply into the subject of scientific

methodology, and establishes a new guideline for ascertaining

whether the scientific method has been applied with sufficient

rigor to a particular theory to permit its introduction into

court. Scholars and philosophers of science are cited in the

course of the decision. See, e.g., id. at 483 (citing Carl

Hempel’s Philosophy of Natural Science, Karl Popper’s

Conjectures and Refutations, and several scholarly articles

and books on the subject of peer review). The language of

Daubert clearly delineates the limited scope of the decision

. FRE 702 provides as follows: “If scientific, technical, or

other specialized knowledge will assist the trier of fact to

understand the evidence or to determine a fact in issue, a witness

qualified as an expert by knowledge, skill, experience, training, or

education, may testify thereto in the form of an opinion or

otherwise.”

52a

in more than one place. See. e.g., id. at 481 n. 8 (stating

that “[oJur discussion is limited to the scientific context”).

Defendant urges that Daubert is applicable not only to

such classical scientific subjects as epidemiology, but also to

the testimony of Reed that various design elements of the

tractor-mower were defective. In support of its position,

Defendant points to language in Daubert itself, and to several

decisions in the 4th Circuit and other jurisdictions

purportedly applying Daubert in contexts analogous to the

one before the court.

First, Defendant argues that footnote eleven of Daubert

extends the application of that decision to nonscientific

contexts. The context of the footnote does not support this

interpretation. Footnote eleven annotates the following

language: “Faced with a proffer of expert scientific

testimony, then, the trial judge must determine. . . whether

the expert is proposing to testify to (1) scientific knowledge

that (2) will assist the trier of fact to understand or determine

a fact in issue.” Jd. at 482 (emphasis added). On its face,

then, the test which the footnote clarifies is inapplicable to

nonscientific knowledge. Footnote eleven itself states that

although the leading precursor decision to Daubert’ focused

on novel scientific techniques, the scope of FRE 702 is

broader. In context, and taken together with footnote eight,

quoted above, it is clear that the Court delineates three

categories of evidence. The broadest is that addressed by

Rule 702, and this includes scientific, technical, and other

specialized knowledge. See id. at 481 n. 8. The next

broadest is that addressed by Daubert itself, all scientific

knowledge. Id. at 482 n. 11. The narrowest category is

that of the superseded Frye decision, addressing only novel

scientific techniques. Jd. Footnote eleven is unhelpful to

2 Frye v. United States, 293 F. 1013 (D.C.Cir. 1923).

53a

Defendant; if anything, it further clarifies that Daubert

applies only to scientific knowledge.

Defendant next cites several cases which, it claims, apply

Daubert to facts sufficiently analogous to those before the

court to suggest that the Daubert test should be applied here.

Each is inapplicable. Cavallo v. Star Enterprise, No. 94-

1499-A (B.D. Va. July 10, 1995) applies Daubert to the

testimony of two doctors that exposure to petroleum fumes

caused certain injuries in the plaintiff. In the context of a

toxic tort case like Cavallo, where causation is often highly

speculative, complex, and difficult to comprehend, the

gatekeeping function of Daubert is clearly indicated, and

only scientifically reliable evidence of (in this case) the link

between petroleum vapors and human injuries should be

presented to the jury. The court is now faced with a

products liability suit for mechanical defec* however,

presenting very different issues.’ In addition, Cavallo agrees

< The court is aware that the distinction between “scientific”

and “non-scientific” knowledge is not marked by a bright line. At

the margin, science shades indistinguishably into other areas of

knowledge, and no principled stopping place exists between

science and nonscience. If the facts before the court fell into such

a marginal area, the court would be faced with a very difficult task

of interpretation of the meaning of Daubert. No such difficulty

exists, however, as the expert testimony which Plaintiff wishes to

present is clearly not of the sort which is or should be addressed

by Daubert. The difficulties of determining the causes of human

ailments due to exposure to toxic or hazardous substances are well

known by practitioners of medicine and law. Individual physical

differences and alternate causes are two of the familiar

confounding factors. When such issues are presented, the court

appropriately demands the standards which science has imposed on

like problems; those of epidemiology, which uses statistical

analysis of large sample populations to control for the distorting

effects invariably present when only one illness is examined. The

(continued...)

54a

in every respect with this court’s interpretation of Daubert as

applicable only in a scientific context. See e.g., id. at *15

(“[a] variety of factors may affect the validity, or reliability,

of a particular scientific expert opinion . . .”) (emphasis

added). Another case cited by the defendant, Lam v.

Upjohn Co., 1995 WL 441894 (W.D. Va. April 21, 1995),

is inapposite for the same reason. The Lam court was faced

with an expert arguing that the drug Halcion causes suidical

behavior, with no scientific or other evidence to support the

conclusion. Daubert, Cavallo and Lam all involved subtle

issues of causation traditionally addressed by epidemiological

methods. The case before the court involves mechanical

engineering, an area in which such methods are unnecesary

and inappropriate. See supra footnote 3.

>(.. continued)

methods of epidemiology are not appropriate in the context of

mechanical engineering, which is governed by well-understood

laws of physics. A piece of metal of known dimension and

composition will predictably fail under a particular stress without

variance caused by its individual constitution, or whether it has

been exposed to cigarette smoke, or whether cancer runs in its

family. Daubert defines the test to be applied when an expert

testifies to a fact of the sort ordinarily established by

epidemiological methods, and otherwise does not apply.

In addition, if courts were to apply the rigorous standards

of Daubert and its progeny (including peer review and studies with

repeatable and repeated results) to routine products liability suits

alleging mechanical defects, plaintiffs would be required to engage

the services of major scientific institutions to secure the sort of

evidence necessary to recover. The absence of scientific studies,

scholarly texts and journals, conferences, and the like in areas such

as lawnmower safety and chainsaw design belie the supposition that

this is what the Supreme Court can possibly have had in mind

when it decided Daubert.

PELE LEBEL CL LSE TIE ATO aS a Oo

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The next case cited by Defendant is Habecker v. Clark

Equipment Co., 36 F.3d 278, 289-90 (3d Cir. 1994). In the

cited portion of that decision, the Third Circuit upheld the

decision of the trial court to exclude the testimony of an

Army safety director concerning a simulation he had

performed of a forklift accident. The court need not address

the issue of whether it agrees that the proffered testimony in

Habecker was scientific, for two reasons. First, the decision

of the trial court was upheld on several independent grounds,

and so the Third Circuit’s decision did not require an

analysis of the applicability of Daubert. Id. at 289.

Second, whether a simulation of an industrial.accident is or

is not scientific, it is certainly more scientific than an

examination of a purportedly defective product after an

accident. The court does not find the passing reference to

Daubert in Habecker to be persuasive.

Defendant next cites Byrnes v. Honda Motor Co., 887

F. Supp. 279, 281-82 (S.D. Fla. 1994). In Byres, the

court excluded expert testimony that a motorcycle lacking leg

protection is defective because the expert did not, as required

by Daubert, test this hypothesis in a scientific manner. Id.

Bymes clearly supports Defendant’s contention that Daubert

is applicable to the analogous expert testimony of Smith

Reed. This court, however, must decline to follow the

reasoning of the decision for the reasons set forth in footnote

3.

The final case cited by Defendant in support of its claim

that Daubert applies to Smith Reed’s testimony is Stanczyk

v. Black & Decker, Inc., 836 F. Supp. 565, 567 (N.D. Il.

1993). | Stanczyk involved the admissibility of expert

testimony that a power saw could be designed with a blade

guard which exposed a much smaller amount of blade than

did the design at issue in that case. There is no analogous

testimony in the present case. Smith Reed’s testimony

supports the use of an operator presence control (“OPC”), a

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common feature on riding mowers,‘ and wider separation of

the brake and speed ratio control (“SRC”) pedals, a design

which is self-evidently feasible. There is no issue presented,

as in Stanczyk, that the proposed design may be impossible

to achieve from an engineering perspective.

Because Daubert is limited to scientific testimony, and

because Reed’s testimony is technical, not scientific, the

court concludes that Daubert is inapplicable. This conclusion

does not dispose of Defendant’s arguments for the exclusion

of Reed’s testimony, as Defendant has advanced two

arguments which do not rely upon Daubert. First, Defendant

contends that the proffered testimony is insufficient on its

own terms. For example, Defendant argues that there is no

factual basis for Reed’s conclusion that Plaintiff stepped on

both the brake and the SRC pedals.* While it is true that an

: An operator presence control is a device which

automatically cuts off power to the mower blades when the weight

of the operator leaves the seat. It is Plaintiff's contention that such

a device would have prevented or significantly reduced his

injuries.

f In its 36-page Memorandum in Support of Motion to

Exclude Expert Testimony, Defendant raises numerous issues with

the same logical structure, offering detailed arguments for why

Reed’s opinions do not follow from the facts. For example,

Defendant argues that Reed has not shown that an OPC would be

Statistically safer than a rollbar/seatbelt combination (such as the

Case 1130 had), and that Reed did not establish that a warning

would have prevented the injuries Plaintiff sustained. These

arguments should be directed to a jury, and not to this court in a

motion for exclusion. Like the argument concerning the SRC,

addressed specifically in the text of this opinion, each of

Defendant’s arguments requires far too much of Plaintiff at this

stage. The expert’s testimony need not irrefutably establish each

link in a logical chain, but need only be reasonably supported by

(continued...)

57a

expert may not reach conclusions in the absence of any

evidence to support them, see Stover v. Norfolk & Western

Railway Co., 249 Va. 192, 455 S.E.2d 238, 243 (1995), this

does not mean that a fact must be irrefutably proved in order

to be relied upon. Plaintiff has stated in his deposition that

he depressed the brake pedal, and doth Plaintiff's expert

Reed and Defendant’s expert Bernard Ross agree that the

SRC had to have been depressed in order for the accident to

occur. Reed Report at 18; Ross Report at 10, 11.

Accordingly, there is sufficient evidence for Reed’s

assumption.

Defendant makes one final argument for the exclusion of

the expert, urging the court to exclude Reed as a sanction for

Plaintiff's allegedly wrongful videotaping of the examination

of the tractor-mower by Defendant’s expert. There is no

rational relationship between this action and the testimony of

Reed. The most appropriate sanction, if any, is the

exclusion of the videotape itself. Because the sanction

requested is inappropriate, the court declines to exclude

Reed’s testimony on this basis, without deciding whether the

videotaping was or was not proper.

DEFENDANT'S MOTION FOR

SUMMARY JUDGMENT

Defendant argues that even if Reed’s testimony is

admitted, it is entitled to summary judgment. To prevail on

a motion for summary judgment under Fed. R. Civ. P.

56(c), the moving party must demonstrate that there is no

genuine issue of material fact and that the moving party is

entitled to judgment as a matter of law. Celotex Corp. v.

‘(...continued)

the facts. The opinions expressed can be inferences, statistical

probabilities, or - of course - opinions. Defendant’s detailed

factual arguments are misplaced here.

58a

Catrett, 477 U.S. 317, 327 (1986). The burden is on the

nonmoving party to “set forth specific facts” that

demonstrate a dispute. Anderson v. Liberty Lobby, Inc.,

477 U.S. 242, 248-49 (1986). In considering Defendants’

motion, the Court views the underlying facts and all

reasonable inferences drawn therefrom in the light most

favorable to Freeman, the non-moving party. Matsushita

Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574,

587 (1986).

Contributory Negligence

Defendant argues that this action is barred by Plaintiff's

contributory negligence, about which no genuine dispute of

material fact exists. Specifically, Defendant urges that

recovery is precluded by Plaintiffs failure to read the

operator’s manual, his decision to use the mower with the

blade in a position low enough to strike partially-buried

boulders in the yard, his use of the mower near the edge of

the hill where the accident occurred, and various details of

his operation of the mower immediately after striking a

boulder and immediately before the accident. If any of these

actions by Plaintiff were so egregious as to constitute

negligence as a matter of law, the court would be compelled

to grant summary judgment to Defendant. Airtrip v. E.E.

Berry Equip. Co., 240 Va. 354, 357, 397 S.E.2d 821, 823

(1990) The standard for whether contributory negligence

exists is “whether a plaintiff failed to act as a reasonable

person would have acted for his own safety under the

circumstances.” Id., 240 Va. at 358, 397 S.E.2d at 824.

Applying this test, the court concludes that a reasonable juror

could find that an experienced user of mowers was not

negligent in using a mower without reading the entire

manual, with the blade low, near a hill, and following

familiar procedures effective on a different model of mower

when trouble occurred. This being the case, the court

ial)

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defendant’s motion for summary judgment as to the issue of

contributory negligence.

Defendant next argues that the evidence offered by

Plaintiff fails to establish each of the counts against it:

specifically, that the Case 1130 mower is not reasonably safe

for its intended use, that Defendant had a duty to warn

Plaintiff of various dangers and that it breached this duty,

and that Defendant breached warranties of merchantability

and fitness for a particular purpose. The court will address

each of these arguments in turn.

Safety of Mower for its Intended Use

Under Virginia law, a manufacturer must exercise

normal care to produce a product which is reasonably safe

for its intended use. Turner v. Manning, Maxwell & Moore,

216 Va. 245, 217 S.E.2d 863, 868 (1975). Defendant

contends that Plaintiff has not met its burden of setting forth

evidence creating a genuine dispute of material fact about

each element of this claim. Defendant’s arguinents fall into

two categories. First, Defendant argues that the opinions of

Smith Reed are based on mere conjecture, rather than upon

facts. These arguments, which are essentially restatements

of arguments made by Defendant in its Motion to Exclude,

have already been addressed and are hereby rejected.

The second argument advanced by Defendant is that

Plaintiff's evidence omits certain vital elements. Defendant

argues that Smith Reed’s contention that an OPC would have

prevented this particular accident does not, even if true,

establish negligence, and that Reed does not identify a

specific OPC device that would have prevented the accident.

Plaintiff has, however, offered more than just a bare

assertion by Reed that an OPC would have prevented this

accident. Plaintiff points to numerous other tractor-mowers

which have OPCs, contends that an engineer employee of

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Defendant urged consideration of adding an OPC to the Case

1130 but that no action was taken, and argues that two

American National Standards Institute (“ANSI”) standards

recommending (but not requiring) the use of OPCs were

similarly ignored. This other evidence is sufficient in itself

to create a genuine issue of material fact with respect to

negligence.

Defendant’s final argument on the issue of the reasonable

safety of the Case 1130 tractor is that Plaintiff offered no

evidence of a variance from industry standards, which

Defendant contends is required by Alevromagiros v.

Hechinger Co., 993 F.2d 417, 421-22 (4th Cir. 1993). The

standard of Alevromagiros is not so difficult to meet as

Defendant contends, however. The crucial issue in that case

was whether plaintiff had met his burden of demonstrating

that the product, a ladder, contained an unreasonably

dangerous defect. This burden could be met, the court

stated, by evidence of industry or government safety

standards, or of consumer expectations, which in turn could

be established by actual industry practice, literature, or direct

evidence. Id. at 420-21. Plaintiff's expert testified only to

the condition of the broken ladder, and not to the safety of

an undamaged ladder of the same model, to industry

Standards, or to consumer expectations. In the absence of

any such supporting testimony, the court found that the

plaintiff had not met its burden of establishing that the ladder

had an unreasonably dangerous defect. Jd. at 421.

In the case at bar, as in Alevromagiros, Plaintiff's expert

examined the damaged tractor-mower, not an undamaged but

otherwise identical tractor-mower. The similarity with

Alevromagiros ends, there, however. As stated above,

Plaintiff offers evidence that Defendant’s engineer urged

consideration of an OPC, refers to numerous other tractors

with OPCs, points to two safety standards allegedly violated

by Defendant, and claims, through Reed, that the tractor-

6la

mower contravened the reasonable expectations of

consumers. Whether or not some of this evidence constitutes

proof of an “industry standard,” it is all directed towards the

demonstration that the tractor-mower was unreasonably

dangerous, and so presents a genuine issue for trial. See id.

at 420-21. Defendant’s motion for summary judgment is

denied as to this claim.

Failure to Warn

Defendant challenges Plaintiff's claim that Defendant

breached its duty to warn of the absence of an OPC and the

dangerous proximity of the brake and SRC on three grounds.

First, Defendant claims that Plaintiff's failure to read the

operator’s manual makes it impossible for Plaintiff to

establish that the failure to warn caused his accident.

Second, Defendant contends that it cannot be held

responsible for not warning of the absence of a feature, since

a legal burden would force it to issue thousands of warnings

against all possible consumer misconceptions about its

products. Finally, Defendant contends that the risk posed by

the proximity of the brake and SRC pedal - if such a risk

existed at all - was open and obvious, and that a warning

would therefore have been superfluous.

Contrary to Defendant’s contention, the evidence is not

clear as to whether Plaintiff read the operator’s manual for

the Case 1130. Plaintiff testified to reading the manual, or

parts thereof, in at least two places in his deposition.

Freeman Dep. at 127, 155. In addition, Plaintiff testified to

the fact that he examined each of the controls and their

functions before starting the tractor-mower for the first time.

Freeman Dep. at 115. The Case 1130 evidently has a

number of instructions printed directly on or near the

controls, and so his inspection could well have included

reading any warnings which were or could have been given

there. Viewing all facts in the light most favorable to

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Plaintiff, it appears that Plaintiff could have been exposed to

any warnings which Defendant chose to offer in the portions

of the manual which he read, and on the machine itself.

Summary judgment is accordingly denied as to this point.

Defendant’s next contention is that it cannot be required

to warn of absent features, since such burden would require

a vast number of warnings. The relevant warning which

Plaintiff contends should have been present, however, is of

the absence of a major safety feature present on a large

percentage of the tractor-mowers in production. The major

safety features of any product are relatively few, and those

which are common among similar products but absent in a

particular model fewer still, far fewer than the “thousands”

which Defendant suggests. The court cannot say as a matter

of law that it is unreasonable to require such warnings, and

so summary judgment is denied as to this point.

Finally, Defendant argues that the risk of the proximity

between the brake and SRC pedals was open and obvious.

Although the proximity was open and obvious upon

inspection, the risk posed by such proximity was not so

obvious. A reasonable juror could well conclude that such

a risk would have been overlooked by a reasonably prudent

person. Summary judgment is accordingly denied as to this

argument.

Warranty of Merchantability

Defendant claims that Plaintiffs contributory negligence

constitutes unforeseeable misuse of the product, and that his

claim of breach of the warranty of merchantability therefore

cannot stand. Contributory negligence is not a defense to a

breach of warranty claim unless that negligence was

unforeseeable. See Jones v. Meat Packers Equipment Co..,

723 F.2d 370 (4th Cir. 1983); Euler v. American Isuzu

Motors, Inc., 807 F. Supp. 1232, 1236 (W.D. Va. 1992).

63a

In order to prevail on this point as it has argued it,

Defendant must first show that Plaintiff was contributorily

negligent, and then that this negligence was not foreseeable

by Defendant. Because the court has found that a reasonable

juror could conclude that Plaintiff was not contributorily

negligent, we find that Defendant cannot meet this burden,

and deny Defendant’s motion for summary judgment as to

the claim of breach of the warranty of merchantability.

Warranty of Fitness for a Particular Purpose

The elements of a claim of breach of warranty of fitness

for a particular purpose are as follows: (1) knowledge by

seller of buyer’s particular purpose; (2) reason to know that

buyer is relying on seller’s implied warranty of fitness; (3)

actual reliance by buyer. Medcom, Inc. v. C. Arthur

Weaver Co., 232 Va. 80, 348 S.E.2d 243, 246 (1986).

Defendant claims that Plaintiff has failed to establish each of

these elements. First, Defendant claims that it had no

knowledge of Plaintiff's particular purpose, i.e., to mow a

dangerously steep, boulder-strewn hill without wearing a

safety belt and without reading the operator’s manual. Any

purpose can be made to look unknowable if narrowly enough

defined, and Defendant goes too far in its characterization of

Plaintiff's purpose. Because a resonable juror could

conclude that Defendant was aware that Plaintiff's purpose

was to mow variable terrain with reasonable safety, the court

rejects Defendant’s argument.

Defendant attacks the second and third elements of the

cause of action by pointing to evidence that Plaintiff began

his shopping with the intention of purchasing a Case 1130,

and would not have purchased anything else. While this

appears to be the case, Plaintiff certainly expected that the

Case 1130, which appears to be advertised in part for the

purpose of mowing lawns, could mow his own lawn safely.

If Plaintiff's lawn is safe enough that a reasonably prudent

64a

person would attempt to mow it with a Case 1130, and if the

Case 1130 in fact is not capable of completing the job safely,

then sale of the Case 1130 constitutes a breach of the implied

warranty of fitness for a particular purpose. Because a

reasonable juror could conclude that both of these

conditionals are true, summary judgment is denied as to this

point.

Punitive Damages

The final issue before the court is Defendant’s motion for

summary judgment as to Plaintiff's claim for punitive

damages. Defendant argues that Plaintiff has not

demonstrated that its negligence, if any, was sO gross as to

warrant an award of punitive damages. The standard for

imposition of punitive damages is indeed high in Virginia,

requiring that a defendant be “guilty of willful and wanton

conduct, and conscious, from his knowledge of existing

conditions, that injury would likely or probably result from

his conduct, and that with reckless indifference to

consequences, he consciously and intentionally did some

wrongful act or omitted some known duty with the injurious

result.” Infant C. v. Boy Scouts of America, 239 Va. 572

(1990).

In the case at bar, Plaintiff has offered evidence that

Defendant was aware that the absence of an OPC may be

dangerous, in the form of deposition testimony tending to

show that their engineer recommended consideration of

installing such a device. Ben Coats Depo. at 124-28.

Plaintiff's evidence also purports to show that OPCs are

common in the industry and that various standards urge their

use. Furthermore, Plaintiff has offered evidence suggesting

that much information was available to Defendant regarding

the danger of contact with mower blades. From this

evidence, a reasonable juror could conclude that Case knew

that injury would likely result from its failure to add an OPC

ee en ETL me F

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to the design of the Case 1130, and that it was reckless in

not making this design change. Summary judgment as to the

issue of punitive damages is therefore denied.

CONCLUSION

For the reasons stated, the court denies Defendant’s

motion to exclude the testimony of Plaintiff's expert Smith

Reed, and denies Defendant’s motion for summary judgment.

An appropriate order will be entered this day.

The Clerk is directed to send certified copies of this

Opinion to all counsel of record.

ENTER: This 13th day of October, 1995.

/s/ Glen M. Willi

SENIOR UNITED STATES DISTRICT COURT JUDGE