Holdsworth v. Nash Mfg., Inc.

• Decision Date: 19 August 1987
• Docket Number: Docket No. 87502
• Citation: 161 Mich.App. 139,409 N.W.2d 764
• Parties: , 76 A.L.R.4th 247, Prod.Liab.Rep. (CCH) P 11,528 Thomas R. HOLDSWORTH and Debra J. Holdsworth, Plaintiffs-Appellees, v. NASH MANUFACTURING, INC., and Dehner's Sport Center, Inc., Defendants-Appellants.
• Court: Court of Appeal of Michigan — District of US

Page 764

409 N.W.2d 764

161 Mich.App. 139, 76 A.L.R.4th 247,

Prod.Liab.Rep. (CCH) P 11,528

Thomas R. HOLDSWORTH and Debra J. Holdsworth, Plaintiffs-Appellees, v.NASH MANUFACTURING, INC., and Dehner's Sport Center, Inc.Defendants-Appellants.

Docket No. 87502.

Court of Appeals of Michigan.

Submitted May 6, 1987.

Decided July 6, 1987.

Released for Publication Aug. 19, 1987.

Feikens, Foster, Vander Male & DeNardis, P.C. by Ronald F. DeNardis and Joseph E. Kozely, Detroit, for plaintiffs-appellees.

Seavitt, Westcott & Stowe by Michael J. Yockey, Southfield, for defendants-appellants.

Before BEASLEY, P.J., and HOOD and BORRADAILE, JJ.

PER CURIAM.

This case, arising from a water-skiing accident in August, 1978, resulted in a $90,000 jury verdict in Wayne Circuit Court in favor of the plaintiffs.Both defendants appeal as of right.We affirm.

PlaintiffThomas Holdsworth was skiing with his wife and others using the boat of Dennis Elliott.On the date of the injury, after driving around the lake a few times, plaintiffThomas Holdsworth was elected to be the first skier.He adjusted his skis when he put them on.The skis had been manufactured by defendantNash Manufacturing, Inc., and were purchased from defendantDehner's Sport Center, Inc., by Elliott in July, 1978.According to the testimony of Thomas Holdsworth, he jumped into the water, put on the skis and began skiing around the lake.The binding on the right ski got tighter about halfway around the lake.Holdsworth let go of the rope and went into a controlled fall.He adjusted the heel binding on the right ski, and proceeded to ski around the lake two or three more times.On the last run he was skiing outside the wake on the right side of the boat.He was ready to go into a turn when he noticed that the right slalom ski was bearing right.He began to fall as he crossed the wake.The left ski popped off, but the tip of the right ski dug underneath the water and twisted behind him.The right ski never released.Holdsworth testified that he knew immediately that his leg had been broken.The muscles in the right leg had been twisted so that those normally in the back of the leg were now to the right and the right foot was twisted so that the toes faced backward.He was taken to the hospital and put into traction.An examination showed that there was a spiral fracture of the femur.He was in the hospital for almost six weeks and in a hip-to-ankle cast from October, 1978, to April, 1979.As Thomas Holdsworth was unable to care for himself, his wife left her job to stay at home to care for him.At trial in June, 1984, he testified that he still suffered pain from the injury and had developed hip, knee and back problems as a result of a 3/4" shortening of the right leg.

The primary issue in this case arises from the testimony of Donald Van Kirk, who testified as to his qualifications in biomechanical engineering and accident reconstruction.In reconstructing the accident, Van Kirk relied on the depositions of Thomas and Debra Holdsworth, Daniel Veevers, who was also skiing with the plaintiffs, Elliott and the president and two vice-presidents of defendant Nash.He also examined the hospital and medical records of Thomas Holdsworth, and examined the skis involved.Van Kirk described how he measured and analyzed the skis.After plaintiffs' counsel had established a foundation for his testimony, the court ruled that Van Kirk could testify as to accident reconstruction, the quality control and manufacturing of the skis, and as a biomechanical engineer, but not as a water ski designer.

From his examination of the heel plate on the right ski, Van Kirk gave an opinion that the serrated portions of the plate were wider at the bottom than at the top.He stated that the skis should be designed to release during a fall to lessen the risk of injury to the skier.Van Kirk also stated that defendant Nash used only cosmetic quality-control procedures.There were no manufacturing specifications or tolerance levels in the manufacturing of the skis and particularly in regard to the heel plates.Van Kirk noted that the poor quality control and manufacturing system allowed the heel plate to move when it should not have.The heel plate should have locked in place when it was on the skier's foot; however, the heel plate could be situated on one side with the other almost coming out of the serrations, thus any vibration could cause the spring to relax or pull in resulting in a loosening or tightening of the binding.In Van Kirk's opinion, a prudent manufacturer would have taken steps to eliminate the quality control and testing defects in order to protect the ultimate consumer.

Defendants presented one witness who worked in marketing for another water ski manufacturing company.The witness was not trained in biomechanical analysis or accident reconstruction.He indicated that his company did not compete with defendant Nash because Nash manufactured a low-cost ski unlike his company which manufactured a high-quality ski.His opinion was that the boat's chop or a wave hit Thomas Holdsworth's right ski causing it to spin back toward Holdsworth and causing Holdsworth to fall with great ferocity.

At the conclusion of trial, the jury returned a verdict in favor of plaintiffs in the amount of $90,000.

Many months later, defendants filed a motion for judgment notwithstanding the verdict or, in the alternative, a new trial.Defendants claimed that the plaintiffs had failed to present a prima facie case and that the pretrial motion judge had erred by not allowing defendants to add a biomechanical expert to their witness list.The trial judge denied the motion, finding "sufficient testimony to have the jury, as trier of the facts, make a determination of the facts in this case from the hypothetical questions put to the expert that were based on the testimony of the other witnesses which lead [sic] the expert to render his expert opinion as to the reasons he felt were the causes of the accident."

The first assignment of error that defendants make on appeal continues that made in the trial court under Wayne Circuit Court Local Rule 2.301(rescinded effective March 1, 1986) which required the parties on or before eighteen months after the filing of the case to exchange lists of all witnesses to be called at trial, including experts.Defendants complain that they filed their witness list in a timely fashion, but that plaintiffs failed to file until much later.Plaintiffs, who filed their witness list eighty-seven days past the eighteen-month deadline, admitted late filing.However, defendants' objection to the late filing, coming six months later, was far from timely itself.Plaintiffs' witness list was filed over a year before trial and defendants were able to take the depositions of all the witnesses they wished.Defendants were not surprised by the testimony of Donald Van Kirk, and failed to show how they were prejudiced by the plaintiffs' late filing.Defendants do claim prejudice in that they were not permitted to add a biomechanical expert to their witness list, their motion being denied by the pretrial motion judge, but their motion did not come until two months before the original trial date.We cannot find error when trial was rapidly approaching and it would have meant a delay of trial if the judge hearing defendants' motion had permitted the late action.

Again, as with the motion question, defendants renew an objection made in their motion for judgment notwithstanding the verdict or new trial that the plaintiffs failed to show a prima facie case by failing to present evidence of design alternatives for the water ski and the binding or of the magnitude of risk involved in using the ski.Defendants seem to base their entire argument on a statement from Owens v. Allis-Chalmers Corp., 414 Mich. 413, 432, 326 N.W.2d 372(1982):

"In the entirety of plaintiff's proofs, there is no data or other factual evidence concerning the magnitude of the risks involved, the utility or relative safety of the proposed alternatives, or evidence otherwise concerning the 'unreasonableness' of risks arising from failure to install driver restraints on the subject...