# Appendix — Case Corp. v. Freeman

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URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386013_1692%3A2

## Record

- **Collection:** Supreme Court brief
- **Document type:** Appendix
- **Published:** January 1, 1998
- **Citation:** 522 U.S. 1069

## Text

la

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.

3a

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.

4a

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).

6a

“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.

9a

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.

12a

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

13a

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,

16a

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

17a

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

18a

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.

19a

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

20a

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.

(.. 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

55a

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

56a

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)

59a

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

60a

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

62a

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

65a

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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386013_1692%3A2. Public record. Not legal advice.