Burley v. Kytec Innovative Sports Equip., No. 24132.

CourtSupreme Court of South Dakota
Writing for the CourtKonenkamp
Citation2007 SD 82,737 N.W.2d 397
PartiesKylie BURLEY, Plaintiff and Appellant, v. KYTEC INNOVATIVE SPORTS EQUIPMENT, INC., Defendant and Appellee. and West Central School District, Third Party Defendant.
Docket NumberNo. 24132.
Decision Date01 August 2007
737 N.W.2d 397
2007 SD 82
Kylie BURLEY, Plaintiff and Appellant,
v.
KYTEC INNOVATIVE SPORTS EQUIPMENT, INC., Defendant and Appellee. and
West Central School District, Third Party Defendant.
No. 24132.
Supreme Court of South Dakota.
Argued November 29, 2006.
Decided August 1, 2007.

[737 N.W.2d 400]

Gary J. Pashby, Michael F. Tobin of Boyce, Greenfield, Pashby, & Welk, LLP, Sioux Falls, South Dakota, Attorneys for plaintiff.

Mark J. Arndt, Scott R. Swier of May & Johnson, PC, Sioux Falls, South Dakota, Attorneys for defendant and appellee.

KONENKAMP, Justice.


[¶ 1.] Plaintiff was injured when a sports product manufactured by defendant malfunctioned and struck her arm. She brought suit against defendant alleging negligence, strict liability (defective design), and strict liability (failure to warn). Defendant moved for summary judgment on all claims and also sought to prohibit the testimony of her proposed expert witness. On finding that plaintiff's expert was not qualified to testify that the instructions provided with defendant's product were inadequate, the circuit court excluded the testimony. The court then granted defendant's motion for summary judgment, ruling that, without expert testimony, plaintiff had insufficient evidence to meet her burden of proof on all her claims. On appeal, we conclude that because the circuit court set the bar too high in determining the admissibility of the expert's opinion, it should not have been excluded, and thus plaintiff's failure to warn claims may be able to proceed. We affirm in part, reverse in part, and remand.

I.

[¶ 2.] On April 12, 2001, Kylie Burley, a high school athlete, was injured in her school hallway while using a training device her coaches provided. It is called the Overspeed Trainer, manufactured and sold by Kytec Innovative Sports Equipment, Inc. The purpose of the Overspeed Trainer is to help improve a runner's speed. The device can be used for either resistance or speed training. It requires two athletes to use, one, called the pacer, and the other, the sprinter. The sprinter wears a belt with a single release hook, and the pacer wears a belt equipped with a single swivel hook. A cord connects the two runners. The cord is tied to a post or other anchor. It is then extended through a pulley on the back of the belt worn by the pacer through to the rope end ring, which is attached to a release hook on the belt worn by the sprinter. The cord has a Velcro connection, termed a "ripcord," which, according to the provided instructions, "will break loose and release the [s]printer if the pull becomes too great[.]"

[¶ 3.] After the cord and belts are in place, the pacer and the sprinter begin to run in the same direction, in either the same lane or two separate lanes, but the pacer is ahead of the sprinter. The pacer is to run faster than the sprinter, in effect pulling the sprinter to keep up and thereby increasing the sprinter's speed. According to the instructions, "[t]he rope will automatically release from the Sprinter when the Pacer slows down or reaches the stopper ring (located 5 meters from the end ring; You'll see how it works when you walk through it the first time.)." Also, the instructions indicate that the sprinter can release herself "with a quick chop downward to the tow line."

[¶ 4.] Burley was using the Overspeed Trainer under the direction of her West Central High School track coach, Darrell Horacek. Horacek and assistant track coach, Denise Kennedy, introduced the brand new Overspeed Trainer for the first time the day Burley was injured. Before letting the students use the device, Horacek and Kennedy read the product's instructions and attempted to assemble it. Horacek found that the instructions were of no help. However, because Kennedy

737 N.W.2d 401

had experience using a similar device while on the University of South Dakota's track team, and Horacek had used one during a training weekend at the University, the two attempted to prepare the Overspeed Trainer for the students' use. After Horacek assembled it, he attempted to use it to see if it would release as the instructions indicated. He noticed that the hook on the sprinter's belt would rotate downward, thereby "making it virtually impossible for a `downward chop' to release the hook and ring." Because the downward chop was a means of releasing the sprinter from the pacer's pull, Horacek decided to bend the hook just enough to make it easier for the ring to release. He bent the hook by using pliers and then tried using the device again. This time he believed that the hook and ring released appropriately after he applied the downward chop. He offered the Overspeed Trainer for use to both the girls' and boys' track teams.

[¶ 5.] After the boys used it, Burley was one of the first girls to try the device. Details of the accident are not entirely clear from the record. Burley recalled that she was injured when her arm was struck from behind by the ring that was supposed to be attached to the sprinter's belt. Horacek believed that the ring broke free, recoiled, and then hit Burley. The impact of the ring fractured the ulna bone in her left arm, requiring surgery and the implantation of a metal plate with screws.

[¶ 6.] Burley brought suit against Kytec, alleging that the company was negligent in its warnings, design, and construction of the Overspeed Trainer. She also alleged that because of the defective design and failure to warn, Kytec was strictly liable for her injuries. Kytec brought a third-party complaint against West Central School District for indemnity and contribution.1 Dr. Jan Berkhout of the University of South Dakota was retained as an expert solely for Burley's failure to warn claims. Burley sought to offer an opinion from Dr. Berkhout that the instructions included with the Overspeed Trainer were "seriously deficient." Kytec moved to exclude this expert testimony and also sought summary judgment on all claims.

[¶ 7.] According to Kytec, Dr. Berkhout lacked the knowledge, skill, experience, training, or education necessary to render an expert opinion in this case. See SDCL 19-15-2 (Rule 702). In its memorandum decision, the circuit court concluded that Dr. Berkhout's proposed testimony would provide "the trier of fact with relevant evidence that would assist them in determining whether the instructions [were] deficient."2 However, the court found that Dr. Berkhout was not qualified to offer an expert opinion about whether the instructions accompanying the Overspeed Trainer were inadequate or improper.

[¶ 8.] Dr. Berkhout is a professor of Psychology and the Director of the Heimstra Human Factors Laboratory at the University of South Dakota. He has a degree in physiology and biopsychology from the University of Chicago, obtained in 1962, and since 1993 is certified as a professional ergonomist by the Board of Certification of

737 N.W.2d 402

Professional Ergonomists. Nonetheless, the circuit court concluded that "Dr. Berkhout has not received any specified training or education related to product instruction," does not have "expertise on questions of display, syntax and emphasis[,]" and has no "personal experience writing or evaluating warning labels for athletic equipment." Accordingly, the court granted Kytec's motion to exclude Dr. Berkhout's testimony.

[¶ 9.] The court then addressed Kytec's motion for summary judgment. In her complaint, Burley alleged that Kytec "negligently designed and manufactured the Overspeed Trainer." But she offered no expert testimony to assist the trier of fact in determining whether the product was defectively manufactured or designed or whether the actions of Kytec in designing and manufacturing the product were reasonable under the circumstances. The court held that for this claim expert testimony was necessary.

[¶ 10.] As to Burley's claim alleging that Kytec was strictly liable for her injuries because the device "was in a defective condition and was unreasonably dangerous," the court similarly concluded that expert testimony was necessary. In the court's words, "it cannot be said that common experience tells us that Burley's injuries could not have occurred absent a defect in the Overspeed Trainer, and Burley has failed to negate other causes of her injuries, namely user error or product modification."

[¶ 11.] Finally, the court examined Burley's last claim that Kytec was liable for its failure to provide adequate warnings of the dangers of the Overspeed Trainer. Because the court had excluded Dr. Berkhout's testimony, the question became whether she could proceed without expert opinion. After identifying the elements necessary for her to prevail on the claims for inadequate warnings, the court held that "Burley has not presented this court with any evidence indicating that it would be able to meet its burden with respect to all those elements." Thus, all her negligence and strict liability claims were dismissed. Burley appeals.

II.

[¶ 12.] We review a circuit court's decision to admit or deny an expert's testimony under the abuse of discretion standard. State v. Guthrie, 2001 SD 61, ¶30, 627 N.W.2d 401, 414-15 (internal citations omitted); see also State v. Edelman, 1999 SD 52, ¶4, 593 N.W.2d 419, 421 (citing State v. Bachman, 446 N.W.2d 271, 275 (S.D.1989)); Zens v. Harrison, 538 N.W.2d 794, 795 (S.D.1995) (citations omitted); State v. Logue, 372 N.W.2d 151, 156 (S.D.1985) (citations omitted). "Although we have repeatedly invoked stock definitions, the term `abuse of discretion' defies an easy description. It is a fundamental error of judgment, a choice outside the range of permissible choices, a decision, which, on full consideration, is arbitrary or unreasonable." Arneson v. Arneson, 2003 SD 125, ¶14, 670 N.W.2d 904, 910 (citation omitted.).

[¶ 13.] Admissibility of expert testimony is governed by SDCL 19-15-2 (Rule 702). Under this rule, before a witness can testify as an expert, that witness must be...

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  • In re Lipitor (Atorvastatin Calcium) Mktg., Sales Practices & Prods. Liab. Litig., MDL No. 2:14–mn–02502–RMG
    • United States
    • United States District Courts. 4th Circuit. United States District Court of South Carolina
    • January 3, 2017
    ...a subject is beyond the common knowledge of the jury, expert testimony is required."); Burley v. Kytec Innovative Sports Equip., Inc ., 737 N.W.2d 397, 407 (S.D. 2007) ("[E]xpert testimony is required when the issue falls outside the common experience of a jury.") (citing Caldwell v. John M......
  • In re Lipitor (Atorvastatin Calcium) Mktg., Sales Practices & Prods. Liab. Litig., MDL No. 2:14–mn–02502–RMG
    • United States
    • United States District Courts. 4th Circuit. United States District Court of South Carolina
    • January 3, 2017
    ...a subject is beyond the common knowledge of the jury, expert testimony is required."); Burley v. Kytec Innovative Sports Equip., Inc ., 737 N.W.2d 397, 407 (S.D. 2007) ("[E]xpert testimony is required when the issue falls outside the common experience of a jury.") (citing Caldwell v. John M......
  • Karst v. Shur-Company, Nos. 27348
    • United States
    • Supreme Court of South Dakota
    • April 20, 2016
    ...manual simply cannot proximately cause a plaintiff's damages."); Burley v. Kytec Innovative Sports Equip., Inc., 2007 S.D. 82, ¶ 37 n. 7, 737 N.W.2d 397, 410 n. 7(accepting premise of defendant's argument that a student athlete injured by exercise [878 N.W.2d 614equipment did not read the i......
  • Hamilton v. Sommers, No. 26720.
    • United States
    • Supreme Court of South Dakota
    • October 29, 2014
    ...deny an expert's testimony under the abuse of discretion standard.” Burley v. Kytec Innovative Sports Equip., Inc., 2007 S.D. 82, ¶ 12, 737 N.W.2d 397, 402. An abuse of discretion “is a fundamental error of judgment, a choice outside the range of permissible choices, a decision, which, on f......
  • Request a trial to view additional results
57 cases
  • In re Lipitor (Atorvastatin Calcium) Mktg., Sales Practices & Prods. Liab. Litig., MDL No. 2:14–mn–02502–RMG
    • United States
    • United States District Courts. 4th Circuit. United States District Court of South Carolina
    • January 3, 2017
    ...a subject is beyond the common knowledge of the jury, expert testimony is required."); Burley v. Kytec Innovative Sports Equip., Inc ., 737 N.W.2d 397, 407 (S.D. 2007) ("[E]xpert testimony is required when the issue falls outside the common experience of a jury.") (citing Caldwell v. John M......
  • In re Lipitor (Atorvastatin Calcium) Mktg., Sales Practices & Prods. Liab. Litig., MDL No. 2:14–mn–02502–RMG
    • United States
    • United States District Courts. 4th Circuit. United States District Court of South Carolina
    • January 3, 2017
    ...a subject is beyond the common knowledge of the jury, expert testimony is required."); Burley v. Kytec Innovative Sports Equip., Inc ., 737 N.W.2d 397, 407 (S.D. 2007) ("[E]xpert testimony is required when the issue falls outside the common experience of a jury.") (citing Caldwell v. John M......
  • Karst v. Shur-Company, Nos. 27348
    • United States
    • Supreme Court of South Dakota
    • April 20, 2016
    ...manual simply cannot proximately cause a plaintiff's damages."); Burley v. Kytec Innovative Sports Equip., Inc., 2007 S.D. 82, ¶ 37 n. 7, 737 N.W.2d 397, 410 n. 7(accepting premise of defendant's argument that a student athlete injured by exercise [878 N.W.2d 614equipment did not read the i......
  • Hamilton v. Sommers, No. 26720.
    • United States
    • Supreme Court of South Dakota
    • October 29, 2014
    ...deny an expert's testimony under the abuse of discretion standard.” Burley v. Kytec Innovative Sports Equip., Inc., 2007 S.D. 82, ¶ 12, 737 N.W.2d 397, 402. An abuse of discretion “is a fundamental error of judgment, a choice outside the range of permissible choices, a decision, which, on f......
  • Request a trial to view additional results

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