Hickerson v. Yamaha Motor Corp.

• Decision Date: 20 February 2018
• Docket Number: No. 17-1075,17-1075
• Citation: 882 F.3d 476
• Parties: Deborah Meek HICKERSON, Plaintiff–Appellant, v. YAMAHA MOTOR CORPORATION, U.S.A.; Yamaha Motor Co Ltd., Defendants–Appellees.
• Court: U.S. Court of Appeals — Fourth Circuit

882 F.3d 476

Deborah Meek HICKERSON, Plaintiff–Appellant,

v.YAMAHA MOTOR CORPORATION, U.S.A.; Yamaha Motor Co Ltd., Defendants–Appellees.

No. 17-1075

United States Court of Appeals, Fourth Circuit.

Argued: December 6, 2017

Decided: February 20, 2018

ARGUED: David G. Owen, DAVID G. OWEN, P.A., Aiken, South Carolina; Austin Fletcher Watts, DOUGLAS F. PATRICK, PA, Greenville, South Carolina, for Appellant. Richard Alan Mueller, THOMPSON COBURN LLP, St. Louis, Missouri, for Appellees. ON BRIEF: Douglas F. Patrick, COVINGTON PATRICK HAGINS STERN & LEWIS, P.A, Greenville, South Carolina, for Appellant. Heather F. Counts, THOMPSON COBURN LLP, St. Louis, Missouri; Robert H. Hood, Jr., HOOD LAW FIRM, LLC, Charleston, South Carolina, for Appellees.

Before MOTZ, AGEE, and FLOYD, Circuit Judges.

Affirmed by published opinion. Judge Agee wrote the opinion, in which Judge Motz and Judge Floyd joined.

AGEE, Circuit Judge:

Deborah Meek Hickerson sustained serious internal injuries in a personal watercraft ("PWC") accident and filed a complaint in the District of South Carolina against the manufacturers of the PWC, Yamaha Motor Corporation, U.S.A. and Yamaha Motor Co., Ltd. (collectively "Yamaha"). In her complaint, Hickerson alleged product liability claims under South Carolina law for design and warning defects. The district court excluded Hickerson's proffered expert testimony and entered summary judgment in favor of Yamaha on all claims. Hickerson then filed a motion to reconsider under Federal Rule of Civil Procedure 59(e), which the district court also denied. On appeal, Hickerson contends the district court erred in requiring expert testimony on her claims and in failing to conduct an appropriate Daubert analysis before excluding her expert's testimony. See Daubert v. Merrell Dow Pharm., Inc. , 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993). For the reasons below, we affirm the judgment of the district court.

I.

A.

This appeal follows a motion for summary judgment. Accordingly, we view the facts in the light most favorable to Hickerson, the nonmoving party below. See Anderson v. Liberty Lobby, Inc. , 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986).

The PWC at issue, a 2011 Yamaha VXS WaveRunner, has on-craft warnings, which are repeated in the operator's manual, that advise riders to wear protective clothing to avoid internal injuries. The following warning (reproduced below) appears on the PWC's front glove box:

WEAR PROTECTIVE CLOTHING. Severe internal injuries can occur if water is forced into body cavities as a result of falling into water or being near jet thrust nozzle. Normal swimwear does not adequately protect against forceful water entry into rectum or vagina. All riders must wear a wet suit bottom or clothing that provides equivalent protection (See Owner's Manual).

J.A. 716. The PWC's rear boarding platform also bears a warning label (reproduced below) stating that "[s]evere internal injuries can occur" and passengers must "[w]ear a wetsuit bottom or clothing that provides equivalent protection."

J.A. 716.

The PWC and accompanying owner's manual also contained warnings that only three people may ride the craft at a time, the operator should be at least sixteen years old, and a person should not ride after consuming alcohol.

In 2012, Hickerson was a passenger riding the PWC on Lake Hartwell, South Carolina. She fell off the back of the PWC into the jet thrust behind it and suffered injuries to her rectum, perineum, vagina, anus, and colon ("orifice injuries"). She underwent eight weeks of medical procedures and recovery.

When she was injured, Hickerson was wearing a bikini and no wetsuit. It is undisputed that she was the fourth passenger on the PWC, a ten-year-old was driving, and Hickerson had consumed alcohol prior to riding. Hickerson admitted that she did not read any on-craft or manual warnings before riding the PWC.

B.

Hickerson, a South Carolina resident, filed her complaint in federal court based on diversity of citizenship with Yamaha. See 28 U.S.C. § 1332. In her complaint, Hickerson pleaded state law claims of strict liability, negligence, and breach of warranties based on the PWC's allegedly inadequate warnings and defective design.

During discovery, Hickerson proffered the expert testimony of Dr. Anand Kasbekar, a mechanical engineer familiar with PWCs who has been retained as an expert in dozens of various product liability cases. Dr. Kasbekar represented that he intended to give several opinions: that the PWC's warnings were inadequate, that a set of alternative warnings was better, and that design alterations like a contoured seat and hand straps would have made the PWC safer. The district court found Dr. Kasbekar qualified to testify as an expert on PWC warnings and design based on his relevant experience in engineering, forensic analysis, and warnings testimony.

However, in response to a motion in limine by Yamaha, the district court excluded Dr. Kasbekar's proffered opinion for a set of alternative warnings as unreliable under Daubert . Hickerson v. Yamaha Motor Corp., U.S.A. , No. 8:13-cv-02311-JMC, 2016 WL 4123865 (D.S.C. July 29, 2016). The district court explained that because Dr. Kasbekar's proposals were neither tested nor based on "specific relevant research or studies," they bore no indicia of reliability. Id. at *5 ; see Daubert , 509 U.S. at 597, 113 S.Ct. 2786. In its written opinion on the motion in limine excluding the alternative warning opinion, the district court mentioned Dr. Kasbekar's separate inadequate warning opinion. However, the court did not expressly exclude the inadequate warning opinion.

Later, in awarding summary judgment to Yamaha, the district court revisited the issue of whether Dr. Kasbekar's proposed inadequate warning opinion was admissible. Hickerson v. Yamaha Motor Corp., U.S.A. , No. 8:13-cv-02311-JMC, 2016 WL 4367141 (D.S.C. Aug. 16, 2016). The court noted that Hickerson's claim of a warning inadequacy "implicate[s] the study of human factors and other industry standards ... generally beyond the common knowledge of a jury." Id. at *3. Thus, the district court expected expert testimony to support any claim of inadequate warnings. But Dr. Kasbekar's inadequate warning opinion was not supported by studies, research, or other scientific basis of verification necessary to establish reliability for Daubert purposes. Indeed, because "[t]he primary evidence [Hickerson] presented ... to support her inadequate warnings claims was, in fact, in the form of expert testimony from Dr. Anand Kasbekar" and the proposed warning system opinion was excluded as unreliable, the district court was "hard-pressed to discern a 'genuine dispute as to any material fact' " on Hickerson's warnings claims. Id. at *3–4. The district court then excluded the proffered inadequate warning opinion and awarded summary judgment to Yamaha on all the warnings claims.

On the defective design claim, the court held that South Carolina continues to follow Comment j to § 402A of the Restatement (Second) of Torts, which, in the district court's view, allows adequate product warnings to "cure" alleged design defects. The court next observed that because Hickerson had not produced admissible evidence that the PWC's warnings were inadequate, "the product's warnings [were] adequate as a matter of law." Id. at *6. Consequently, under Comment j, the adequate warnings cured any alleged design defects so that the PWC could not be deemed defectively designed. Because strict liability, negligence, and breach of warranties claims require "proof of a defective condition," the court granted judgment as a matter of law on all of Hickerson's claims. Id.

Hickerson filed a motion to reconsider under Rule 59(e), claiming the district court's rulings were clearly erroneous because Hickerson had provided sufficient evidence to withstand summary judgment and a product with adequate warnings can still be unreasonably dangerous under South Carolina law. See Hickerson v. Yamaha Motor Corp., U.S.A. , No. 8:13-cv-02311-JMC, 2016 WL 7324684 (D.S.C. Dec. 16, 2016). The district court rejected Hickerson's argument that Dr. Kasbekar's inadequate warning opinion could rest on his own "specialized skill, training, and experiences" without any relevant scientific support. Id. at *7. It also rejected Hickerson's "mere disagreement with the court's interpretation of South Carolina law" on the application of Comment j. Id. at *12. Having reviewed its rulings, the district court denied the motion.

Hickerson timely appealed, and we have jurisdiction pursuant to 28 U.S.C. § 1291. Federal courts sitting in diversity apply the substantive state law that would apply had the plaintiff filed the case in state court. Stonehocker v. Gen. Motors Corp. , 587 F.2d 151, 154 (4th Cir. 1978). The Parties agree that South Carolina products liability law applies to the issues in this case.

II.

On appeal, Hickerson challenges the district court's exclusion of Dr. Kasbekar's opinions, its grant of summary judgment, and its denial of her motion for reconsideration.

We review the exclusion of expert testimony for abuse of discretion. See Gen. Elec. Co. v. Joiner , 522 U.S. 136, 143, 118 S.Ct. 512, 139 L.Ed.2d 508 (1997). Trial judges serve a "gatekeeping" function and have "considerable leeway" in excluding evidence. Kumho Tire Co. v. Carmichael , 526 U.S. 137, 152, 119 S.Ct. 1167, 143 L.Ed.2d 238 (1999). Expert testimony must be "based on sufficient facts or data," and the expert must arrive at his opinions by properly applying "reliable principles and methods" to the facts. See Fed. R. Evid. 702.

Because Hickerson appeals the district court's exclusion of Dr. Kasbekar's testimony as unreliable, we consider the following Daubert factors pertaining to the reliability of evidence:

(1) whether a theory or technique can be or has been tested; (2) whether it has been subjected to peer review and publication; (3) whether a technique has a high known or potential

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