Jordan Eskridge v. Pacific Cycle, Inc., No. 13-1259 (4th Cir. 2014)
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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 13-1259 JORDAN ESKRIDGE, Plaintiff - Appellant, v. PACIFIC CYCLE, INC., a foreign corporation; WAL MART STORES EAST, LP, Defendants Appellees, and WAL MART STORES, INC., a foreign corporation; INDUSTRY CO., LTD, a foreign corporation, KUN TENG Defendants. Appeal from the United States District Court for the Southern District of West Virginia, at Charleston. Joseph R. Goodwin, District Judge. (2:11-cv-00615) Argued: December 10, 2013 Decided: January 17, 2014 Before TRAXLER, Chief Judge, and WILKINSON and DAVIS, Circuit Judges. Affirmed in part, reversed in part, and remanded by unpublished per curiam opinion. ARGUED: Christopher Brinkley, MASTERS LAW FIRM, LC, Charleston, West Virginia, for Appellant. Tanya Annette Hunt Handley, MACCORKLE LAVENDER PLLC, Charleston, West Virginia, for Appellees. ON BRIEF: John L. MacCorkle, Charleston, West Virginia, Heather M. Noel, MACCORKLE LAVENDER PLLC, Morgantown, West Virginia, for Appellees. Unpublished opinions are not binding precedent in this circuit. 2 PER CURIAM: Jordan Eskridge appeals a district court order granting summary judgment against him in his products liability action. We affirm in part, reverse in part, and remand for trial. I. This case arises out of injuries that Eskridge suffered while riding his Mongoose XR100 bicycle when he was 13 years old. Eskridge s father bought the bicycle, which was equipped with a Quando quick-release hub, at a Wal-Mart in Beckley, West Virginia. The bicycle was preassembled and it came with an owner s manual. Eskridge enjoyed the bike for more than three years without incident, but then one day, as he was riding over a speed bump, he crashed and suffered very serious injuries. Eskridge eventually filed suit in West Virginia state court, naming as defendants as is relevant here Pacific Cycle, Inc., which designed the bike, and Wal-Mart Stores, Inc., which sold it to Eskridge s father. 1 He alleged that as he rode over the speed bump on the day he was injured, the bicycle s front wheel separated from the front forks and when the bicycle came down the front wheel was jammed into the forks, stopping the bicycle suddenly and causing him to strike the handlebars 1 Wal-Mart Stores East, LP, was later substituted for WalMart Stores, Inc. We will refer to Pacific Cycle, Inc., and Wal-Mart Stores East, LP, as Defendants. 3 and fall to the ground. Eskridge asserted causes of action for strict liability, negligence, and breach of warranty, and he sought compensatory and punitive damages. a result of deficiencies in He claimed that [a]s design, testing, assembly, inspection, and provision with instructions and warnings, the Mongoose XR100, and/or its Quando defective in several respects. Defendants later removed quick-release hub, were J.A. 25. the action to federal court and eventually moved for summary judgment. district Defendants maintained that Eskridge could not prove that the quick-release hub in the Mongoose XR100 ( Mongoose ) was defectively designed because Eskridge s expert, James Green, conceded that, if used properly, the mechanisms quick in the release world. is J.A. one of 220. the The best clamping Defendants also maintained that no failure-to-warn or inadequate-labeling theory could succeed because neither Green nor Eskridge offered evidence of the industry standard, exemplar owner s manuals or any other document or standard and because Green offered no basis for believing that providing warnings and instructions in the owner s manual was an inadequate method communicate the applicable warning to the user. Eskridge then filed a response by which to J.A. 62. detailing his theories, based on Green s report and testimony, that the Mongoose was defective in several different respects. 4 Understanding Green s opinions requires a little background regarding the quick- release mechanism. A quick-release mechanism allows a bicycle s front wheel to be removed quickly and without tools. Although originally designed for racing bicycles, the device also can benefit the casual rider who is removing the wheel for any reason, such as to transport the bicycle, lock it up in public, or change a flat tire. Consequently, even most bicycles sold for casual use are equipped with a quick-release hub. On a bicycle equipped with such a device, the front fork blades, which are the arms of the bicycle holding the wheel, each have a u-shaped dropout on their end. And, the axle of the front wheel has a cylindrical hollow space running through it. The quick-release mechanism is a rod that is threaded on one end and that has a lever-operated cam assembly on the other. With such a system, the wheel is connected to the bicycle when the rod is placed through the hollow part of the front wheel axle so that it protrudes a little bit on either end. The wheel is then situated between the fork blades so that both ends of the rod fit in the dropouts. To secure the wheel, a nut on one end of the rod is tightened and the lever on the other side is pressed inward. The lever tightens the rod so that mechanism is pushing on each dropout from the outside. 5 the This pressure keeps the wheel attached while the bicycle is being ridden. Green inspected Eskridge s bicycle and concluded that it was defective in three ways. First, the fork holding the front wheel the was defective rather than closed. because fork blades ends were open Green opined that open-fork systems created the reasonably foreseeable risk that a user would install his quick-release hub improperly, which separate from the fork during use. intelligent users who are would cause the hub to Green noted that even for attempting to follow perfect instructions, fastening a quick release is a subtle process that is often done incorrectly. J.A. 208. Green also opined that there was no benefit to a casual rider of an open-fork system. Second, Green concluded that, the inherent problems with the open-fork system aside, the design of the Mongoose s openfork system differed from that of the vast majority of open-fork designs in the industry, such that it was a far trickier process to install the hub correctly on the Mongoose. The problem as Green described it is that protuberances at the end of each dropout in an open-fork mechanism generally serve to keep the wheel from separating from the bicycle in the event that the hub has not been installed correctly. However, with the Mongoose, you yet can put the wheel on and 6 not get it over the protuberances completely. J.A. 210. [I]f you don t have it seated just perfectly, [so] that it s off just a little bit on either side so that it s not completely clearing the protuberance when you fasten it, it comes right out of there during use. indicated Eskridge contrast, J.A. 210. that to that cause with Green testified that his investigation most the the likely is accident. exactly Green industry-standard almost impossible to . . . what happened explained open-fork that, design, to in it s fasten the quick release in there with it at an angle or onto the tips. tips in order to fasten it. You have to get over the J.A. 211. Thus, the risk of mistakenly believing that the hub is properly installed is much greater on the Mongoose. Finally, Green opined that the bicycle s warnings and instructions regarding the quick release were inadequate because they were contained only in the owner s manual. experience, manuals, and most he bicycle has owners found do that not read quick-release In Green s their owner s warnings are effective only when a warning label is placed on the quickrelease itself or warnings are actually provided to the consumer at the point of sale. Eskridge also argued in his response memorandum that Green s acknowledgement that the quick release is one of the world s best clamping systems if used properly did not doom his 7 design-defect theories because it was reasonably foreseeable that the quick release would not in fact be used properly. further contended noncompliance with that he was government or not required industry to standards He prove to prove defectiveness under either a failure-to-warn or a design theory. And he argued that he had created a jury issue regarding his entitlement to manufacture potential associated of for punitive the damages bicycle, Defendants mis-installation dangers to because, of riders; prior were were the aware of the hubs and the quick-release they to aware of customer complaints of quick-release wheels separating from bicycles and causing accidents; they conducted no technical quality assurance on the bicycle; and they made no effort to ensure that their warnings actually and instructions reaching owners regarding and quick-release were effectively hubs were conveying necessary instructions and warnings. Defendants arguments they then filed presented in a reply their generally initial reiterating memorandum. the In a footnote, however, they also added that while Green may be an expert on bicycles, there has been nothing offered to suggest that [he] is an expert in labeling or in the retail industry. J.A. 324 n.2 (citing a case in which Green was held unqualified to offer an expert opinion on the standards or customs of the 8 retail industry because he has not indicated any background in that area (internal quotation marks omitted)). The parties then argued the summary judgment motion before the district court. During that argument, Defendants did not challenge the admissibility of any expert testimony that Green would provide. Following argument, the court took the motion under advisement. While the summary judgment motion was still pending, Defendants moved in limine to preclude Green from testifying: (1) concerning deficiencies in the owner s manual; (2) that most bicyclists do not read owner s manuals; (3) that the labeling on the bicycle standards. was inadequate; (4) or about retail industry The motion was based on contentions that Green had not criticized the substance of the warnings contained in the owner s manual, that he was not an expert in labeling or the retail industry, and that Eskridge had not admissible testimony on the identified issues. forecasted any Regarding the lack of admissible testimony, Defendants specifically asserted that Green s testimony in these areas was neither reliable nor relevant, and they argued that it was not based on sufficient data since Green admitted he had never studied the issue of people reading their owner s manuals. Eskridge qualifications then to filed testify a J.A. 365. response regarding 9 discussing warnings, labels, Green s owner s manuals, and retail following facts. industry standards, which included the Green is a professional engineer with more than 30 years experience, and he has worked on more than 500 cases involving quick-release hub bicycle accidents. His book, Bicycle Engineer, Accident features a Reconstruction chapter on for the quick-release hubs Forensic and their role in accidents, and he has published many articles on that subject. Creating appropriate warnings and labels for a particular design, so that they accurately convey the necessary information to the product user, was an integral part of his engineering education. Since recommendations 1976, regarding Green user major bicycle manufacturers. has and evaluated training J.A. 385. and manuals made for all And, he helped develop a label to be placed on the flange of one manufacturer s quickrelease hubs results of extensive to warn misusing experience users a of the potentially quick-release creating hub. manuals in catastrophic Green other also has industries. Finally, he has been retained by several retailers, including Wal-Mart, Lowe s, Performance Bikes, and Brooklyn Bikes, to revise and implement appropriate retail industry standards. Eskridge also argued in his response, as is relevant here, that Green s view that most bicycle users do not read their owner s manuals and that labels on the bicycle itself or point- 10 of-sale warnings were necessary was based on his decades of experience in the bicycle industry. Two weeks later, the district court granted the Defendant s motion for summary judgment. See Eskridge v. Pacific Cycle, Inc., No. 2:11-cv-00615, 2013 WL 596536 (S.D. W. Va. Feb. 15, 2013). Mongoose The court ruled that Eskridge s three theories that the was defective were all essentially failure-to-warn theories because they all asserted unreasonable exposure to the danger that the user would misuse the product (by installing the quick-release hub incorrectly). See id. at *3-4. And the court added: Eskridge has simply provided no admissible evidence that the warnings were inadequate. Green merely offered his personal opinion that no one should ever rely upon an owner s manual to give warnings or instructions. This opinion is inadmissible for two reasons. First, Green does not base this opinion on sufficient facts or data required for expert opinions to be admissible. FED.R.EVID. 702. Second, while Green may be an expert on bicycle engineering and design, there is no evidence that he is qualified to offer an expert opinion on the standards of the retail industry. Id. at *4 (citation omitted). II. Eskridge first argues that the district court erred in granting summary judgment against him on his strict liability, breach of warranty, and negligence claims, all of which asserted 11 that Eskridge s injuries defectiveness. reviews caused by the Mongoose s We agree. This were court de novo a district court s order granting summary judgment, applying the same standards as the district G.D.F., court. Inc., See 211 Providence F.3d 846, 850 Square (4th Assocs., Cir. L.L.C. 2000). v. Summary judgment is appropriate if the movant shows that there is no genuine dispute as to any material fact and entitled to judgment as a matter of law. 56(a). the movant is Fed. R. Civ. P. Because we are sitting in diversity, our role is to apply the governing state law, or, if necessary, predict how the state s highest court would rule on an unsettled issue. Horace Mann Ins. Co. v. General Star Nat l Ins. Co., 514 F.3d 327, 329 (4th Cir. 2008). Under three West broad, categories: Virginia and not law, a product necessarily may be mutually defective in exclusive, design defectiveness; structural defectiveness; and use defectiveness arising out of the lack of, or the inadequacy of, warnings, instructions and labels. 2 2 Morningstar v. Black & Under West Virginia law, a product distributor is held to the same standards as the product s manufacturer. See Dunn v. Kanawha Cty. Bd. of Educ., 459 S.E.2d 151, 157 (W. Va. 1995); Morningstar v. Black & Decker Manuf. Co., 253 S.E.2d 666, 683 n.22 (W. Va. 1979). Thus, these issues bear equally on both Defendants entitlement to summary judgment. 12 Decker Manuf. Co., 253 S.E.2d 666, 682 (W. Va. 1979). Design defectiveness focuses on the physical condition of the product which renders it unsafe when the product is used in a reasonably intended manner, while use defectiveness focuses not so much on a flawed unsafeness physical arising instruct or warn. out Id. condition of the of the failure product, to as adequately on its label, In this context, [t]he term unsafe imparts a standard that the product is to be tested by what the reasonably prudent manufacturer would accomplish in regard to the safety of the product, having in mind the general state of the art of the manufacturing process, including design, labels and warnings, as it relates to economic costs, at the time the product was made. Id. at 682-83. At bottom, Eskridge alleges that the Mongoose, as it was designed, with the warnings that were included in the manual, unreasonably exposed the consumer to the danger that the quickrelease would be fastened incorrectly and that the hub would separate from the fork, causing a crash. mutually exclusive theories as to why He advances three the Mongoose was defective, the first two of which he contends are design-defect theories and the third of which he contends is a use-defect theory. First, he claims that designing the bicycle with an open-fork system rather than a closed-fork system created a risk that a reasonable consumer even one trying to follow adequate instructions would install the quick-release hub incorrectly. 13 Second, he claims that even if open-fork systems generally are not unreasonably unsafe, the Mongoose s unusual design, which significantly improperly unsafe. increases install the the chance that quick-release a hub, consumer was will unreasonably And, third, he maintains that even if the bicycle could have been made reasonably safe had a warning been placed on the bicycle or given to the consumer at the point of sale, it was certainly not reasonably safe with the warning being contained only in the owner s manual. In argue defending that if the the grant Mongoose of is summary judgment, reasonably safe Defendants when used properly, then it follows that it was not defectively designed. Defendants contend that since Eskridge s expert concedes that the bicycle is safe when used properly, i.e., when the quickrelease hub is correctly installed, 3 then all of Eskridge s theories concerning the dangers of improper use are necessarily use-defect theories. prove a defect in Thus, Defendants continue, Eskridge can the Mongoose only by showing that the Mongoose s warnings or instructions concerning the quick-release hub were inadequate. And, Defendants argue that the district 3 Green testified that open-fork quick-releases are one of the best clamping mechanisms in the world if they re used properly. J.A. 220. The context of this testimony demonstrates that if they re used properly refers to whether the hubs are installed properly. 14 court correctly ruled, as a matter of law, that Eskridge could not prove the inadequacy of the Mongoose s warnings and instructions. Eskridge rejects Defendants characterization of his liability theories, however, and counters that the bicycle is designed defectively because its design creates an unreasonable risk that even reasonable people attempting to crafted instructions will misuse the bicycle. follow well- He alternatively takes issue with the district court s conclusion that he failed to forecast admissible evidence that the Mongoose s warnings and instructions were inadequate. We agree with Eskridge on both points and will address them seriatim. A. Although the Eskridge s defect Eskridge s first Design Defect district theories two court as theories characterized alleging do adequately label, instruct or warn. 682. not all use allege three of defectiveness, a failure to Morningstar, 253 S.E.2d at Rather, they assert that the Mongoose s design creates an unreasonable danger that no warning could adequately eliminate. The fact that Eskridge alternatively challenges the adequacy of the Mongoose s warnings does not somehow negate the fact that his primary challenges are to the bicycle s design. Defendants maintain that the safety of a particular design concerns only whether it is safe for its proper use. 15 Thus, they argue that it makes no sense to claim that a product is defectively designed because the design creates an unreasonable risk of improper use. We do not believe the Supreme Court of Appeals of West Virginia would agree, however. In determining whether a product is reasonably safe for its intended use, [t]he question of what is an intended use of a product carries with it the concept of all those uses a reasonably prudent person might make of the product, having in mind its characteristics, (emphasis added). warnings and labels. Id. at 683 Thus, the seller is not liable when the product is . . . used in some unusual and unforeseeable way, as when a wall decorating compound is stirred with the finger, or nail polish is set on fire, or an obstinate lady insists on wearing shoes two sizes too small. Id. (emphasis added); see also Landis v. Hearthmark, LLC, 750 S.E.2d 280, 291-93 (W. Va. 2013). These statements make clear that sellers are only entitled to have their users respond reasonably to the warnings and instructions; they are not entitled to anything more. In light of of Green s testimony concerning the difficulty installing the hub correctly even with perfect instructions, a reasonable jury could find that even a reasonably prudent person might fasten the Mongoose s release incorrectly and that such a mistake was a wholly foreseeable outcome. Thus, a reasonable jury could well accept Green s testimony that the 16 Mongoose s failure even to conform to the industry-standard open-fork design significantly increased the danger of incorrect installation and that the bicycle was defectively designed for that reason. We note that this result is in line with section 2(b) of the Restatement (Third) of Torts Products Liability (1998), which provides that [a] product . . . is defective in design when the foreseeable risks of harm posed by the product could have been reduced or avoided by the adoption of a reasonable alternative design . . ., and the omission of the alternative design renders the product not reasonably safe. 4 Comment l to section 2 provides that [i]n general, when a safer design can reasonably be implemented and risks can reasonably be designed out of a product, adoption of the safer design is required over a warning that leaves a significant residuum of such risks. Indeed, Illustration 14 in that section of the Restatement is quite pertinent to the facts before us here. discusses the hypothetical example of a That illustration garbage truck s compaction chamber that warns in large letters on its outside 4 We observe that the Supreme Court of Appeals of West Virginia has cited the Restatement (Third) of Torts Products Liability, for different propositions on other occasions. See Bennett v. Asco Servs., Inc., 621 S.E.2d 710, 717-18 (W. Va. 2005) (per curiam); Strahin v. Cleavenger, 603 S.E.2d 197, 210 (W. Va. 2004). 17 panels DANGER DO NOT INSERT ANY OBJECT WHILE COMPACTION CHAMBER IS WORKING KEEP HANDS AND FEET AWAY. that [t]he fact that adequate The illustration notes warning was given does not preclude [a worker who falls into the machine] from seeking to establish that the compactor was defectively designed by virtue of the fact that there was no guard to prevent such an accident. See also Sturm, Ruger & Co. v. Day, 594 P.2d 38, 44 (Alaska 1979) ( Where the most stringent warning does not protect the public, the defect itself must be eliminated if the manufacturer is to avoid liability. ), modified, 615 P.2d 621 (Alaska 1980), overruled on other grounds by Dura Corp. v. Harned, 703 P.2d 396, 405 n.5 (Alaska 1985); Uloth v. City Tank Corp., 384 N.E.2d 1188, 1192 (Mass. 1978) ( Whether or not adequate warnings are given is a factor to be considered on the issue of negligence, but warnings cannot absolve the manufacturer or designer of all responsibility for the safety of the product. ). Similarly here, we conclude that the Supreme Court of Appeals of West Virginia would hold that despite the fact that users can be and were instructed regarding how to use the quickrelease hub, that does not protect the seller, as a matter of law, from liability for failing to adopt a design that would have provided significantly better protection than any warning could. Rise and See David G. Owen, Warnings Don t Trump Design: Fall of ยง 402A Comment 18 j, 153 Products The Liability Advisory 1 (Nov. 2001); Howard Latin, Good Warnings, Bad Products, and Cognitive Limitations, 41 U.C.L.A. L. Rev. 1193, 1295 (June 1994) ( Good product warnings may be useful, indeed necessary, in many accident-prevention settings but their value is inherently treated as limited legally and they acceptable consequently alternatives designs and marketing strategies. ). to should safer not be product Given Green s testimony that simply utilizing the industry-standard quick-release design would have significantly reduced the danger of misinstallation with no apparent cost in utility we conclude that a reasonable jury could find that the Mongoose was defectively designed. As the lack of proof of defect was the only basis the Defendants assert in support of their entitlement to summary judgment on the issue of liability, we reverse the grant of summary judgment on Eskridge s strict liability, breach of warranty, and negligence causes of action. B. Use Defect We also conclude that the district court erred in ruling that Eskridge failed to at least create a genuine factual issue regarding whether the Mongoose contained a use defect, i.e., whether the Defendants fail[ed] to adequately label, instruct or warn. Morningstar, 253 S.E.2d at 682. Under Rule 702 of the Federal Rules of Evidence: 19 A witness who is qualified as an expert by knowledge, skill, experience, training, or education may testify in the form of an opinion or otherwise if: (a) the expert s scientific, technical, or other specialized knowledge will help the trier of fact to understand the evidence or to determine a fact in issue; (b) the testimony is based on sufficient facts or data; (c) the testimony is principles and methods; and the product of reliable (d) the expert has reliably applied principles and methods to the facts of the case. Fed. R. Evid. 702. the We review a district court s evidentiary rulings, including the admissibility of expert testimony, for abuse of discretion. See General Elec. Co. v. Joiner, 522 U.S. 136, 141-43 (1997). Whether a product is defective for failure to warn is to be tested by what the reasonably prudent manufacturer would accomplish in regard to the safety of the product, having in mind the general state of the art of the manufacturing process, including design, labels and warnings, as it relates economic costs, at the time the product was made. to the Morningstar, 253 S.E.2d at 682 83. The adequacy of the method chosen by the manufacturer the to warn user generally a question for the jury. of a danger is See Ilosky v. Michelin Tire Corp., 307 S.E.2d 603, 611 (W. Va. 1983). 20 particular Green testified that the Mongoose was defective for failing to adequately warn users concerning the quick-release system because the warnings appeared only in the owner s manual and, in Green s experience, users did not read such warnings when they appeared only in manuals. Regarding Eskridge s claim that the Mongoose s warnings were defective, the district court ruled: Eskridge has simply provided no admissible evidence that the warnings were inadequate. Green merely offered his personal opinion that no one should ever rely upon an owner s manual to give warnings or instructions. This opinion is inadmissible for two reasons. First, Green does not base this opinion on sufficient facts or data required for expert opinions to be admissible. FED.R.EVID. 702. Second, while Green may be an expert on bicycle engineering and design, there is no evidence that he is qualified to offer an expert opinion on the standards of the retail industry. Eskridge, 2013 WL 596536, at *4 (citation omitted). As to the district court s second point, we note that the Defendants do not even attempt to defend the conclusion that Green was warnings. unqualified to testify as an expert as to the See Appellees brief at 16 ( The court did not rule that Mr. Green is unqualified to testify as an expert as to warnings, rather, provided no inadequate. ). the court admissible held evidence that that Eskridge the has warnings were A witness may be qualified as an expert by knowledge, skill, experience, training, or education. Evid. 702. simply Fed. R. While Green needed only one of those, see Garrett v. 21 Desa Indus., Inc., 705 F.2d 721, 724 (4th Cir. 1983), the record demonstrated that he had them all. See supra, at 7-8. We therefore conclude that to the extent the district court ruled that Green was not qualified to offer an expert opinion regarding the adequacy of the warning here, the court abused its discretion. We also can find no foundation for the district court s conclusion that Green s opinion is not based on sufficient facts or data. improper Green testified to extensively studying the issue of installation of quick-release hubs. In Green s experience, he found that bicycle owners do not generally read their manuals and that quick-release warnings are effective only when a warning label is placed on the quick-release itself or the warnings are actually provided to the consumer at the point of sale. accidents Green s involving involvement quick-release with hundreds systems and of his cases of decades of experience in the industry in general certainly provided him with a strong foundation for testifying regarding those facts. See Kumho Tire Co., Ltd. v. Carmichael, 526 U.S. 137, 156 (1999) ( [N]o one denies that an expert might draw a conclusion from a set of observations based on extensive and specialized experience. ). Defendants contend that Green s own testimony shows that he in fact has not studied the question of whether people read 22 their bicycle manuals. They particularly note that when Green testified that most bicycle owners do not read their manuals and when he was asked whether that was because riding a bicycle is kind of intuitive, reason, although he I ve answered, never Well, studied that s it. probably J.A. the 246-47. Defendants construe this testimony as meaning that Green had never studied whether people read their manuals. However, when Green s testimony is viewed in its entirety, it is plain he was stating that he never studied why they do the district not read their manuals. Defendants also argue that court correctly determined that Green s testimony concerning the inadequacy of the warnings was inadmissible because it was nothing more than his personal belief, rather than the professional opinion of an expert. Appellees brief at 19. Green s years of experience as an engineer were well established, however, and he testified that all of the opinions that he provided in Green s reports and testimony were certainty. 5 to J.A. 256. a reasonable degree of engineering That his opinion was a personal opinion 5 To the extent that Defendants are suggesting that Green s personal conclusions as a professional engineer are not admissible because a plaintiff must demonstrate a deviation from industry standards and customs to prove defectiveness, they are simply incorrect. See Jones v. Patterson Contracting, Inc., 524 S.E.2d 915, 920-22 (W. Va. 1999) (per curiam). 23 does not somehow mean it was not a professional one. these reasons, abused its we can only discretion conclude that ruling that in the For all of district Green s court testimony concerning the inadequacy of the method Defendants employed in communicating their warnings would be inadmissible. Finally, Defendants suggest that even if Green s testimony concerning the inadequacy of the warnings is admissible, they were entitled to have their instructions successfully followed, no matter how difficult it was to do so. For this position, Defendants rely on the statement in Morningstar that [t]he seller is entitled to have his due warnings and instructions followed; and when they are disregarded, and injury results, he is not liable. 253 S.E.2d at 683 (quoting W. Prosser, The Law of Torts, at 668-69 (4th ed. 1971)); see Landis, 750 S.E.2d at 292. However, whether the Mongoose s warnings and instructions were due warnings and instructions depends on the adequacy of the method Defendants chose to communicate them to the user, which Green s testimony called into question. we discussed regarding Eskridge s In any event, as design-defect theories, Morningstar does not suggest anything more than that users are required to take notice of the warnings and instructions and act reasonably with them in mind. See Morningstar, 253 S.E.2d at 683 ( The question of what is an intended use of a product carries with it the concept of 24 all those uses a reasonably prudent person might make of the product, having in mind its characteristics, warnings and labels. (emphasis added)). While Morningstar stated that a seller is not liable when his warnings or instructions are disregarded, id., it does not suggest that sellers are entitled to have users successfully follow instructions no matter how difficult the task. In sum, in light of the admissibility of Green s testimony concerning conclude the that inadequacy Eskridge of the created Mongoose s a genuine warnings, factual we issue concerning whether the Mongoose contained a use defect. III. Eskridge also argues the district court erred in granting summary judgment on his claim for punitive damages. On this point, we disagree. To prove entitlement to punitive damages, a plaintiff bears the burden of showing that the defendant acted in a manner that entitles him to such damages. See Peters v. Rivers Edge Mining, Inc., 680 S.E.2d 791, 821 (W. Va. 2009). must have been done maliciously, [T]he wrongful act wantonly, mischievously, with criminal indifference to civil obligations. quotation marks omitted). In products or Id. (internal liability cases, the plaintiff may justify a punitive damages award by showing that the manufacturer, having actual or constructive knowledge of the 25 product defect, continued to manufacture and distribute it. See Davis v. Celotex Corp., 420 S.E.2d 557, 559-61 (W. Va. 1992). Eskridge has not forecasted evidence that could satisfy that standard here. Although the Mongoose featured an open-fork system, demonstrated the record that such a release had the benefit of allowing the user to remove the front wheel quickly and without tools. While Green testified that that benefit was not significant to casual riders, the popularity of the openfork system on non-racing bicycles indicates otherwise. Especially considering that open-fork systems were so commonly employed in the industry, there was no reason to infer that the Defendants had actual or constructive knowledge that bicycles with such systems were inherently defective. Additionally, although Green opined that the Mongoose s particular open-fork system was defectively designed, such that it was significantly more dangerous than evidence that the knowledge of this typical open-fork Defendants had difference. any And systems, actual there or finally, was no constructive while Green testified that warning the consumer about the quick-release only in the owner s manual was not adequate, he conceded it was the manner in which most bicycle conveyed that information. manufacturers and distributors Although Green testified that some manufacturers and distributors took the more extensive measures that Green recommended, Eskridge 26 presented no evidence that Defendants had actual or constructive warnings were not sufficient. knowledge that their See also Ilosky, 307 S.E.2d at 619 (holding that trial court correctly struck punitive damages claim on failure-to-warn theory when defendant had taken steps to warn public of the danger in question and the only issue was whether these steps were adequate). We therefore affirm the grant of summary judgment concerning Eskridge s punitive damages claim. IV. For the foregoing reasons, we reverse the grant of summary judgment on the issue of claim for punitive damages. liability but affirm on Eskridge s We therefore remand to the district court for trial. AFFIRMED IN PART, REVERSED IN PART, AND REMANDED 27
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