Burley v. Kytec Innovative Sports Equipment, Inc.: expert testimony in strict products liability cases in South Dakota.

• Author: Dylla, Joseph M.

1. INTRODUCTION

   On April 12, 2001, Kylie Burley was injured while using the Overspeed Trainer, an athletic training device used for resistance and strength training that was manufactured and marketed by Kytec Innovative Sports Equipment, Inc. (1) Following the accident, Burley brought suit against Kytec asserting negligence, strict liability (defective design), and strict liability (failure to warn). (2) Burley obtained an expert for the failure to warn claim, but relied on admissions made by Kytec and inferences from the facts of the case for the negligence and defective design claims. (3)

   As a general rule, expert testimony is needed to prove negligence or that a defect existed in products liability actions. (4) In the absence of expert testimony, the circuit court granted Kytec's motion for summary judgment on the negligence and defective design claims. (5) Moreover, on Burley's failure to warn claim, the circuit court found Burley's expert to be unqualified and excluded the proffered expert testimony. (6) On appeal, the South Dakota Supreme Court reversed the circuit court's exclusion of the expert testimony, (7) but a majority affirmed the circuit court's dismissal of the negligence and defective design claims because each lacked the requisite expert testimony necessary to prove the respective theories to the jury. (8)

   This note will discuss the types of strict liability cases that require expert testimony, as well as those that can be presented to a jury through the use of circumstantial evidence alone. (9) This article begins with a discussion of the facts and procedure of Burley v. Kytec Innovative Sports Equipment, Inc. (10) The article will then cover the background of strict products liability litigation and the expert witness's role in such litigation. (11) Finally, the article will conclude with an analysis of Burley in light of the current state of strict products liability law, and a discussion of why expert testimony was not necessary to prove the existence of a defective design in this particular case. (12)

   2. FACTS AND PROCEDURE

      Kytec Innovative Sports Equipment, Inc. produced and distributed athletic training equipment and was wholly owned by Ms. Jodi Michaelson. (13) The company was launched by Michaelson in the early 1990s. (14) Kytec's business often involved reverse engineering products made by other manufacturers and then selling the copied product to a catalog company, as well as selling the copied product directly to consumers through its own catalog and website. (15) In fact, Kytec did not sell any products that were designed by Michaelson or any other employee. (16) The Overspeed Trainer, like the majority of products sold by Kytec, was copied from another manufacturer. (17) At the time of this litigation, Kytec had been marketing and selling the Overspeed Trainer for nearly a decade but did not know the identity of the actual product designer. (18)

      When Kytec first reverse engineered the Overspeed Trainer, it did not perform any research on the original product that it copied. (19) Nor did it make any inquiries regarding the safety of the product or its component parts. (20) Moreover, neither Michaelson nor any other employee tested the instructions that accompanied the product. (21) Kytec simply copied the instructions from the exemplar, put the Kytec name and logo on the instructions and sent those instructions along with each device sold. (22) Before Burley brought this suit, Kytec had produced the Overspeed Trainer for nearly ten years and had sold over 4,500 devices without any complaint. (23)

      The Overspeed Trainer requires two athletes for proper use. (24) One athlete runs in front of the other. (25) The individual running in front is called the pacer, and the back runner is called the sprinter. (26) The pull of the pacer forces the sprinter to keep up, thereby increasing the sprinter's speed. (27) To use the device, each individual wears a belt that is connected to a cord, which links the individuals together. (28) On the back athlete's belt there is a single release hook. (29) On the front athlete's belt there is a single swivel hook. (30) The cord is then tied to some form of anchor, and is "extended through a pulley on the back of the belt worn by the pacer through to the rope end ring, which [i]s attached to a release hook on the belt worn by the sprinter." (31) The cord is connected by a Velcro ripcord which "'will break loose and release ... if the pull becomes too great[.] "' (32) The instructions included with the Overspeed Trainer stated that "'[t]he rope will automatically release from the [s]printer when the [p]acer slows down or reaches the stopper ring...."' (33) The instructions also stated that there was an additional means of releasing the back athlete by making a "'quick chop downward to the tow line."' (34) The "downward chop" was viewed to be an important means of release because as the front athlete accelerated, the Tull created forced the back athlete to run faster than his or her natural ability. (35) In order to prevent injuries to the back athlete, the downward chop was the primary means to release the device before he or she would be physically unable to keep pace. (36)

      On the afternoon of the accident, Burley was using the Overspeed Trainer as a member of the West Central High School track team. (37) That afternoon was the first time that the track teams had used the device. (38) Before any of the student-athletes used the Overspeed Trainer, some of the coaches first tried to use the device. (39) In particular, Head Coach Daryl Horacek attempted to learn more about the use and operation of the product. (40) Despite Coach Horacek's experience, he was not able to fully understand how the device worked. (41) Specifically, there was difficulty understanding the downward chop that the instructions indicated would release the two athletes from the cord that connected them. (42) Prior to using the device, the coaches "noticed that the hook and buckle, when worn with force applied to the rope, would rotate down, thereby making the hook also rotate downward, making it virtually impossible for a 'downward chop' to release the ring and hook. " (43) While working with the device, the coaches consulted the instructions on use and assembly, but found the instructions to be unhelpful. (44) Because of the rotation of the buckle and hook, Coach Horacek used a pair of pliers to slightly bend the hook to make it easier for the ring and hook to release when the downward chop was applied. (45) Coach Horacek made the alteration because the downward chop was a useful and important means of releasing the two athletes. (46) After Coach Horacek bent the hook, the coaches tested the Overspeed Trainer. (47) They thought that the hook released properly when a downward chop was applied and gave the device to both the boys' and girls' track teams for their training. (48) The modification by Coach Horacek occurred without consulting Kytec and he readily acknowledged that the modification may have caused Burley's injuries. (49)

      Following the modification, the boys' track team used the product, and it operated without any problems for approximately thirty runs before being turned over to the girls' track team. (50) Burley was one of the first girls on the team to use the device. (51) During the run that ended with the accident, Burley was the pacer, or front runner. (52) At the conclusion of that run, the Overspeed Trainer broke, the rope recoiled and the metal ring that was supposed to be attached to the sprinter's belt struck Burley in the forearm. (53) The impact of the metal ring broke Burley's forearm in approximately thirteen places. (54) Burley required surgery and placement of a permanent metal plate and seven screws in her arm. (55)

      Following the accident, Burley brought suit against Kytec. (56) She claimed that Kytec was "negligent in its warnings, design, and construction of the Overspeed Trainer," and that because of the defective product and warnings, Kytec should be held strictly liable for her injuries. (57) In response to these allegations, Kytec sought indemnification and contribution from the West Central School District and filed a third-party complaint. (58) The dispute between Burley and the school was settled shortly after the accident without Burley filing charges against the school district. (59)

      Burley's claims against Kytec, however, continued to move forward and she obtained Dr. Jan Berkhout to provide expert testimony regarding the failure to warn claim. (60) Burley did not offer an expert for the negligence or defective design claims. (61) In pretrial motions, Kytec moved to exclude the proffered expert testimony and also moved for summary judgment on all claims. (62) With regard to the failure to warn claim, Kytec argued that the proffered expert "lacked the knowledge, skill, experience, training, or education necessary to render an expert opinion in this case." (63) The circuit court found that the expert testimony would be relevant, as it "would provide 'the trier of fact with relevant evidence that would assist them in determining whether the instructions [were] deficient.'" (64) However, the judge ultimately concluded that Dr. Berkhout was not qualified to offer an expert opinion about the adequacy or propriety of the Overspeed Trainer's instructions. instructions. (65) That decision was based on the fact that Dr. Berkhout had "'not received any specified training or education related to product instruction,' d[id] not have 'expertise on questions of display, syntax and emphasis[,]' and ha[d] 'no personal experience writing or evaluating warning labels for athletic equipment.'" (66) Without expert testimony, the court held that Burley would be unable to prove all of the elements necessary to maintain a cause of action for failure to warn, (67) and Kytec was granted summary judgment on that claim. (68)

      With regard to Burley's claims of...