Bittner by Bittner v. American Honda Motor Co., Inc., 91-3067
| Decision Date | 21 June 1995 |
| Docket Number | No. 91-3067,91-3067 |
| Citation | 533 N.W.2d 476,194 Wis.2d 122 |
| Parties | , 64 USLW 2027, Prod.Liab.Rep. (CCH) P 14,269 Russell J. BITTNER by Ella BITTNER, his Guardian, Plaintiff-Appellant-Petitioner, v. AMERICAN HONDA MOTOR CO., INC., a foreign corporation, Honda Motor Co., Ltd., a foreign corporation, Honda Research & Development Co., Ltd., Defendants-Respondents, d Dodge County, a Wisconsin Municipal Corporation, Defendant. |
| Court | Wisconsin Supreme Court |
For the plaintiff-appellant-petitioner there were briefs by Lynn R. Laufenberg, William M. Cannon, Patrick O. Dunphy, Mark L. Thomasen and Cannon & Dunphy, S.C., Milwaukee and oral argument by Patrick O. Dunphy.
For the defendant-respondent there was a brief by Richard A. Bowman, Wayne D. Struble and Bowman & Brooke, Minneapolis, MN and Thomas C. Ewing, Bernard J. Bobber and Foley & Lardner, Milwaukee and oral argument by Wayne D. Struble.
Amicus curiae brief was filed by Professor Daniel D. Blinka and Marquette Law School and Frank A. Scherkenbach, Russell A. Klingaman and Hinshaw & Culbertson, all of Milwaukee, for The Product Liability Advisory Council, Inc.
Amicus curiae brief was filed by Robert L. Jaskulski and Domnitz, Mawicke, Goisman & Rosenberg, S.C., Milwaukee, for The Wisconsin Academy of Trial Lawyers.
This is a review of a published decision of the court of appeals, Bittner v. American Honda Motor Co., Inc., 181 Wis.2d 93, 511 N.W.2d 325 (Ct.App.1993), which affirmed a judgment of the circuit court for Dodge County, Joseph E. Schultz, Circuit Judge. The judgment, entered on a jury's verdict in favor of the defendant following a seven week trial, dismissed Russell Bittner's claims against Honda 1 to recover for injuries he sustained when his 1983 three wheel Honda all-terrain vehicle (ATV) overturned.
The sole issue presented on review is whether the circuit court properly admitted Honda's "comparative risk" 2 evidence at trial. Plaintiff objects to the evidence on several grounds: (1) comparing the relative risk of injury of ATVs to other dissimilar products and activities is not legally relevant to the manufacturer's duty of care with regard to the design, manufacture, and sale of ATVs; (2) the injury rate associated with an unrelated product or activity says nothing about the reasonableness of a particular products design; and (3) the introduction of injury rates associated with products wholly unrelated to ATVs misled and confused the jury and impermissibly shifted the jury's focus away from the issues in dispute.
Honda argues that the comparative risk evidence it introduced was appropriate because: (1) plaintiff opened the door by introducing this form of evidence through its own witnesses; 3 (2) comparative risk evidence assists the jury in determining whether a particular product is "reasonably" dangerous; (3) most of the comparative evidence introduced by Honda satisfies the "similar products" test for relevant evidence; and (4) the "dissimilar products" evidence plaintiff objects to pertains to a very limited part of the comparative risk evidence introduced at trial. For the reasons we explain below, we conclude that the evidence introduced by the defendant, comparing the risk of injury associated with three wheel ATVs to the risk of injury associated with dissimilar products and activities, should have been excluded on the basis of relevance, prejudice, and jury confusion. We reverse the decision of the court of appeals, which affirmed the circuit court's evidentiary rulings admitting the comparative risk evidence. On remand, we direct the circuit court to vacate the judgment entered against the plaintiff, Russell Bittner, and to order a new trial on all issues.
The facts are undisputed. The plaintiff, Russell Bittner, was severely injured in an accident which occurred while he was operating a 1983 Honda "Big Red" all terrain vehicle near his home on a mowed grass path he had ridden many times before. Bittner, then twenty-six years old, was accompanied by his brother, Robert. The brothers frequently rode their ATVs on this pathway. At the time of the accident Bittner was approximately 50 feet ahead of his brother--he had rounded a corner and was out of his brother's view. When Robert rounded the corner he found his brother lying on the ground about a foot away from his ATV. There were no witnesses to the accident. At trial Robert testified that his brother was an experienced ATV rider.
As a result of the severe and permanent neurological injuries sustained in the accident, plaintiff, by his guardian ad litem, commenced this action. Plaintiff's complaint, based on a theory of product strict liability and common law negligence, alleged that the Honda ATV he was riding at the time of his accident, was defective and unreasonably dangerous and that the defendants were negligent with respect to the vehicle's design and sale. At trial, plaintiff introduced testimony concerning the alleged design defects of three wheel ATVs (with respect to the vehicle's solid rear axle design, the absence of a mechanical suspension system, and its high center of gravity) as well as testimony on how these design features adversely affect ATV handling characteristics. Plaintiff also introduced testimony concerning the results of an investigation conducted by the Consumer Product Safety Commission (CPSC) 4 on the safety of three wheel ATVs. During the course of the testimony related to the CPSC investigation, plaintiff introduced data collected by the CPSC comparing the stability of three wheel ATVs to four wheel ATVs and data reporting injury and fatality rates associated with three wheel ATVs. This evidence was offered to establish that the product was defective and unreasonably dangerous and to establish notice to the manufacturer of the risk associated with three wheel ATVs. Plaintiff informed the jury that ATV-related injury rates were not being offered to establish causation. 5
Honda argues that plaintiff's "class attack" on the design and safety of three wheel ATVs, "determined the type of product comparisons that Honda could offer in response to the CPSC's injury and death statistics." Honda's Brief at 26. Honda argues:
[O]nce petitioner expanded his defect claim and statistical proof to all 3-wheel ATVs and, in fact, compared the 3-wheelers to non-ATV products and activities, then the responsive comparative risk analysis could reasonably encompass (1) snowmobiles and mini/trailbikes, which even the CPSC deemed similar to ATVs and (2) motorcycles, cars, bicycles, horseback riding, downhill skiing, and aviation, which even petitioners experts chose to compare to ATV riding.
Id. at 27. According to Honda, the comparative risk analyses it introduced, over plaintiff's objections, were an appropriate response to plaintiff's trial strategy. The defense evidence took three forms: 1) a study conducted in 1985 by Dr. Verhalen, Associate Director of Epidemiology for the CPSC, comparing the risk of injury from ATVs with other off-road recreational vehicles including snowmobiles, minibikes and trail bikes; (2) a study conducted in 1988 by Dr. Rodgers, Director of Economics for the CPSC, confirming Dr. Verhalen's study; and, (3) an analysis prepared by Dr. McCarthy for the instant litigation, confirming the work of Drs. Verhalen and Rogers, and an additional comparative study of his own, comparing ATVs to other dissimilar recreational products and activities such as swimming, skiing, boating, bicycling, horseback riding, scuba diving and aviation. These analyses came in on cross-examination of plaintiff's expert, William Kitzes, and on direct examination of Honda's expert, Roger McCarthy.
Because the instant review requires that we consider the evidentiary rulings of the circuit court, it is necessary to set forth in some detail the trial testimony of the two expert witnesses through whom most of the allegedly objectionable evidence was introduced--William Kitzes and Roger McCarthy. 6
At trial, through Kitzes, the jury learned that the CPSC had, pursuant to its charter, conducted an investigation on the safety of ATVs. Kitzes explained the various methods the CPSC employed to collect data, including the nationwide hospital emergency room reporting system (NEISS). Kitzes testified that NEISS data associates a particular product with the injury rate reported to the CPSC through NEISS affiliated emergency rooms. Kitzes explained that NEISS data is only associational in nature and that it does not disclose the cause of the accident related to the product.
Through Kitzes, the plaintiff also introduced the results of the CPSC's investigation on the safety of ATVs including the rates of injury and fatality associated with ATV use. Kitzes testified that as a result of its investigation, the CPSC concluded that three wheel ATVs present a level 3, "imminent risk" of harm. He further testified that this was the highest level of risk the commission might assign a product under its rating system. The jury was told by Kitzes that, once this level of risk is assigned to a product, the United States Department of Justice may begin legal proceedings against the product manufacturer. He further testified that, at the conclusion of the CPSC's investigation on the safety of ATVs, the Department of Justice filed suit against ATV manufacturers, including Honda, to recall three wheel ATVs. And, that after the suit was filed, ATV manufacturers, including Honda, entered into a consent decree with the government agreeing not to sell three wheel ATVs in the United States.
During plaintiff's direct examination of Kitzes, 30 exhibits were offered and received into evidence. With the exception of one exhibit, all the materials introduced through Kitzes exclusively related to three wheel ATVs. Specifically, the exhibits introduced related to CPSC information gathering techniques and internal operating procedures,...
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