Jordan Eskridge v. Pacific Cycle, Inc.

UNPUBLISHED

UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 13-1259

JORDAN ESKRIDGE,

Plaintiff - Appellant,

v.

PACIFIC CYCLE, INC., a foreign corporation; WAL−MART STORES
EAST, LP,

Defendants – Appellees,

and

WAL−MART STORES, INC., a foreign corporation; KUN TENG
INDUSTRY CO., LTD, a foreign corporation,

Defendants.

Appeal from the United States District Court for the Southern
District of West Virginia, at Charleston. Joseph R. Goodwin,
District Judge. (2:11-cv-00615)

Argued: December 10, 2013 Decided: January 17, 2014

Before TRAXLER, Chief Judge, and WILKINSON and DAVIS, Circuit
Judges.

Affirmed in part, reversed in part, and remanded by unpublished
per curiam opinion.

ARGUED: Christopher Brinkley, MASTERS LAW FIRM, LC, Charleston,
West Virginia, for Appellant. Tanya Annette Hunt Handley,
MACCORKLE LAVENDER PLLC, Charleston, West Virginia, for
Appellees. ON BRIEF: John L. MacCorkle, Charleston, West
Virginia, Heather M. Noel, MACCORKLE LAVENDER PLLC, Morgantown,
West Virginia, for Appellees.

Unpublished opinions are not binding precedent in this circuit.

2
PER CURIAM:

Jordan Eskridge appeals a district court order granting

summary judgment against him in his products liability action.

We affirm in part, reverse in part, and remand for trial.

I.

This case arises out of injuries that Eskridge suffered

while riding his Mongoose XR100 bicycle when he was 13 years

old. Eskridge’s father bought the bicycle, which was equipped

with a Quando quick-release hub, at a Wal-Mart in Beckley, West

Virginia. The bicycle was preassembled and it came with an

owner’s manual. Eskridge enjoyed the bike for more than three

years without incident, but then one day, as he was riding over

a speed bump, he crashed and suffered very serious injuries.

Eskridge eventually filed suit in West Virginia state

court, naming as defendants – as is relevant here – Pacific

Cycle, Inc., which designed the bike, and Wal-Mart Stores, Inc.,

which sold it to Eskridge’s father. 1 He alleged that as he rode

over the speed bump on the day he was injured, the bicycle’s

front wheel separated from the front forks and when the bicycle

came down the front wheel was jammed into the forks, stopping

the bicycle suddenly and causing him to strike the handlebars

1
Wal-Mart Stores East, LP, was later substituted for Wal-
Mart Stores, Inc. We will refer to Pacific Cycle, Inc., and
Wal-Mart Stores East, LP, as “Defendants.”

3
and fall to the ground. Eskridge asserted causes of action for

strict liability, negligence, and breach of warranty, and he

sought compensatory and punitive damages. He claimed that “[a]s

a result of deficiencies in design, testing, assembly,

inspection, and provision with instructions and warnings, the

Mongoose XR100, and/or its Quando quick-release hub, were

defective” in several respects. J.A. 25.

Defendants later removed the action to federal district

court and eventually moved for summary judgment. Defendants

maintained that Eskridge could not prove that the quick-release

hub in the Mongoose XR100 (“Mongoose”) was defectively designed

because Eskridge’s expert, James Green, conceded that, if used

properly, the quick release is “one of the best clamping

mechanisms in the world.” J.A. 220. The Defendants also

maintained that no failure-to-warn or inadequate-labeling theory

could succeed because neither Green nor Eskridge offered

evidence of the “industry standard, exemplar owner’s manuals or

any other document or standard” and because Green offered no

basis for believing that providing warnings and instructions in

the owner’s manual was an inadequate method by which to

communicate the applicable warning to the user. J.A. 62.

Eskridge then filed a response detailing his theories,

based on Green’s report and testimony, that the Mongoose was

defective in several different respects. Understanding Green’s

4
opinions requires a little background regarding the quick-

release mechanism.

A quick-release mechanism allows a bicycle’s front wheel to

be removed quickly and without tools. Although originally

designed for racing bicycles, the device also can benefit the

casual rider who is removing the wheel for any reason, such as

to transport the bicycle, lock it up in public, or change a flat

tire. Consequently, even most bicycles sold for casual use are

equipped with a quick-release hub.

On a bicycle equipped with such a device, the front “fork

blades,” which are the arms of the bicycle holding the wheel,

each have a u-shaped “dropout” on their end. And, the axle of

the front wheel has a cylindrical hollow space running through

it. The quick-release mechanism is a rod that is threaded on

one end and that has a lever-operated cam assembly on the other.

With such a system, the wheel is connected to the bicycle when

the rod is placed through the hollow part of the front wheel

axle so that it protrudes a little bit on either end. The wheel

is then situated between the fork blades so that both ends of

the rod fit in the dropouts. To secure the wheel, a nut on one

end of the rod is tightened and the lever on the other side is

pressed inward. The lever tightens the rod so that the

mechanism is pushing on each dropout from the outside. This

5
pressure keeps the wheel attached while the bicycle is being

ridden.

Green inspected Eskridge’s bicycle and concluded that it

was defective in three ways. First, the fork holding the front

wheel was defective because the fork blades’ ends were open

rather than closed. Green opined that open-fork systems created

the reasonably foreseeable risk that a user would install his

quick-release hub improperly, which would cause the hub to

separate from the fork during use. Green noted that even for

intelligent users who are attempting to follow perfect

instructions, fastening a quick release is a “subtle” process

that is often done incorrectly. J.A. 208. Green also opined

that there was no benefit to a casual rider of an open-fork

system.

Second, Green concluded that, the inherent problems with

the open-fork system aside, the design of the Mongoose’s open-

fork system differed from that of the vast majority of open-fork

designs in the industry, such that it was a far trickier process

to install the hub correctly on the Mongoose. The problem as

Green described it is that protuberances at the end of each

dropout in an open-fork mechanism generally serve to keep the

wheel from separating from the bicycle in the event that the hub

has not been installed correctly. However, with the Mongoose,

“you can put the wheel on” and yet not “get it over the

6
protuberances completely.” J.A. 210. “[I]f you don’t have it

seated just perfectly, [so] that it’s off just a little bit on

either side so that it’s not completely clearing the

protuberance when you fasten it, it comes right out of there”

during use. J.A. 210. Green testified that his investigation

indicated that that most likely is exactly what happened to

Eskridge to cause the accident. Green explained that, in

contrast, with the industry-standard open-fork design, “it’s

almost impossible to . . . fasten the quick release in there

with it at an angle or onto the tips. You have to get over the

tips in order to fasten it.” J.A. 211. Thus, the risk of

mistakenly believing that the hub is properly installed is much

greater on the Mongoose.

Finally, Green opined that the bicycle’s warnings and

instructions regarding the quick release were inadequate because

they were contained only in the owner’s manual. In Green’s

experience, most bicycle owners do not read their owner’s

manuals, and he has found that quick-release warnings are

effective only when a warning label is placed on the quick-

release itself or warnings are actually provided to the consumer

at the point of sale.

Eskridge also argued in his response memorandum that

Green’s acknowledgement that the quick release is one of the

world’s best clamping systems if used properly did not doom his

7
design-defect theories because it was reasonably foreseeable

that the quick release would not in fact be used properly. He

further contended that he was not required to prove

noncompliance with government or industry standards to prove

defectiveness under either a failure-to-warn or a design theory.

And he argued that he had created a jury issue regarding his

entitlement to punitive damages because, prior to the

manufacture of the bicycle, Defendants were aware of the

potential for mis-installation of quick-release hubs and the

associated dangers to riders; they were aware of customer

complaints of quick-release wheels separating from bicycles and

causing accidents; they conducted no technical quality assurance

on the bicycle; and they made no effort to ensure that their

warnings and instructions regarding quick-release hubs were

actually reaching owners and were effectively conveying

necessary instructions and warnings.

Defendants then filed a reply generally reiterating the

arguments they presented in their initial memorandum. In a

footnote, however, they also added that while Green “may be an

expert on bicycles, there has been nothing offered to suggest

that [he] is an expert in labeling or in the retail industry.”

J.A. 324 n.2 (citing a case in which Green was held unqualified

to offer an expert opinion “on the standards or customs of the

8
retail industry because he has not indicated any background in

that area” (internal quotation marks omitted)).

The parties then argued the summary judgment motion before

the district court. During that argument, Defendants did not

challenge the admissibility of any expert testimony that Green

would provide. Following argument, the court took the motion

under advisement.

While the summary judgment motion was still pending,

Defendants moved in limine to preclude Green from testifying:

(1) concerning deficiencies in the owner’s manual; (2) that most

bicyclists do not read owner’s manuals; (3) that the labeling on

the bicycle was inadequate; (4) or about retail industry

standards. The motion was based on contentions that Green had

not criticized the substance of the warnings contained in the

owner’s manual, that he was not an expert in labeling or the

retail industry, and that Eskridge had not forecasted any

admissible testimony on the identified issues. Regarding the

lack of admissible testimony, Defendants specifically asserted

that Green’s testimony in these areas was neither reliable nor

relevant, and they argued that it was not based on sufficient

data since Green admitted he had “never studied the issue of

people reading their owner’s manuals.” J.A. 365.

Eskridge then filed a response discussing Green’s

qualifications to testify regarding warnings, labels, owner’s

9
manuals, and retail industry standards, which included the

following facts. Green is a professional engineer with more

than 30 years experience, and he has worked on more than 500

cases involving quick-release hub bicycle accidents. His book,

Bicycle Accident Reconstruction for the Forensic Engineer,

features a chapter on quick-release hubs and their role in

accidents, and he has published many articles on that subject.

Creating appropriate warnings and labels for a particular

design, so that they accurately convey the necessary information

to the product user, was an integral part of his engineering

education. Since 1976, Green has “evaluated and made

recommendations regarding user and training manuals for all

major bicycle manufacturers.” J.A. 385. And, he helped develop

a label to be placed on the flange of one manufacturer’s quick-

release hubs to warn users of the potentially catastrophic

results of misusing a quick-release hub. Green also has

extensive experience creating manuals in other industries.

Finally, he has been retained by several retailers, including

Wal-Mart, Lowe’s, Performance Bikes, and Brooklyn Bikes, to

revise and implement appropriate retail industry standards.

Eskridge also argued in his response, as is relevant here,

that Green’s view that most bicycle users do not read their

owner’s manuals and that labels on the bicycle itself or point-

10
of-sale warnings were necessary was based on his decades of

experience in the bicycle industry.

Two weeks later, the district court granted the Defendant’s

motion for summary judgment. See Eskridge v. Pacific Cycle,

Inc., No. 2:11-cv-00615, 2013 WL 596536 (S.D. W. Va. Feb. 15,

2013). The court ruled that Eskridge’s three theories that the

Mongoose was defective were all essentially failure-to-warn

theories because they all asserted unreasonable exposure to the

danger that the user would misuse the product (by installing the

quick-release hub incorrectly). See id. at *3-4. And the court

added:

Eskridge has simply provided no admissible evidence
that the warnings were inadequate. Green merely
offered his personal opinion that no one should ever
rely upon an owner’s manual to give warnings or
instructions. This opinion is inadmissible for two
reasons. First, Green does not base this opinion on
“sufficient facts or data” required for expert
opinions to be admissible. FED.R.EVID. 702. Second,
while Green may be an expert on bicycle engineering
and design, there is no evidence that he is qualified
to offer an expert opinion on the standards of the
retail industry.

Id. at *4 (citation omitted).

II.

Eskridge first argues that the district court erred in

granting summary judgment against him on his strict liability,

breach of warranty, and negligence claims, all of which asserted

11
that Eskridge’s injuries were caused by the Mongoose’s

defectiveness. We agree.

This court reviews de novo a district court’s order

granting summary judgment, applying the same standards as the

district court. See Providence Square Assocs., L.L.C. v.

G.D.F., Inc., 211 F.3d 846, 850 (4th Cir. 2000). Summary

judgment is appropriate “if the movant shows that there is no

genuine dispute as to any material fact and the movant is

entitled to judgment as a matter of law.” Fed. R. Civ. P.

56(a). “Because we are sitting in diversity, our role is to

apply the governing state law, or, if necessary, predict how the

state’s highest court would rule on an unsettled issue.” Horace

Mann Ins. Co. v. General Star Nat’l Ins. Co., 514 F.3d 327, 329

(4th Cir. 2008).

Under West Virginia law, a product may be defective in

“three broad, and not necessarily mutually exclusive,

categories: design defectiveness; structural defectiveness; and

use defectiveness arising out of the lack of, or the inadequacy

of, warnings, instructions and labels.” 2 Morningstar v. Black &

2
Under West Virginia law, a product distributor is held to
the same standards as the product’s manufacturer. See Dunn v.
Kanawha Cty. Bd. of Educ., 459 S.E.2d 151, 157 (W. Va. 1995);
Morningstar v. Black & Decker Manuf. Co., 253 S.E.2d 666, 683
n.22 (W. Va. 1979). Thus, these issues bear equally on both
Defendants’ entitlement to summary judgment.

12
Decker Manuf. Co., 253 S.E.2d 666, 682 (W. Va. 1979). Design

defectiveness focuses “on the physical condition of the product

which renders it unsafe when the product is used in a reasonably

intended manner,” while use defectiveness focuses “not so much

on a flawed physical condition of the product, as on its

unsafeness arising out of the failure to adequately label,

instruct or warn.” Id. In this context,

[t]he term ‘unsafe’ imparts a standard that the
product is to be tested by what the reasonably prudent
manufacturer would accomplish in regard to the safety
of the product, having in mind the general state of
the art of the manufacturing process, including
design, labels and warnings, as it relates to economic
costs, at the time the product was made.

Id. at 682-83.

At bottom, Eskridge alleges that the Mongoose, as it was

designed, with the warnings that were included in the manual,

unreasonably exposed the consumer to the danger that the quick-

release would be fastened incorrectly and that the hub would

separate from the fork, causing a crash. He advances three

mutually exclusive theories as to why the Mongoose was

defective, the first two of which he contends are design-defect

theories and the third of which he contends is a use-defect

theory. First, he claims that designing the bicycle with an

open-fork system rather than a closed-fork system created a risk

that a reasonable consumer – even one trying to follow adequate

instructions – would install the quick-release hub incorrectly.

13
Second, he claims that even if open-fork systems generally are

not unreasonably unsafe, the Mongoose’s unusual design, which

significantly increases the chance that a consumer will

improperly install the quick-release hub, was unreasonably

unsafe. And, third, he maintains that even if the bicycle could

have been made reasonably safe had a warning been placed on the

bicycle or given to the consumer at the point of sale, it was

certainly not reasonably safe with the warning being contained

only in the owner’s manual.

In defending the grant of summary judgment, Defendants

argue that if the Mongoose is reasonably safe when used

properly, then it follows that it was not defectively designed.

Defendants contend that since Eskridge’s expert concedes that

the bicycle is safe when used properly, i.e., when the quick-

release hub is correctly installed, 3 then all of Eskridge’s

theories concerning the dangers of improper use are necessarily

use-defect theories. Thus, Defendants continue, Eskridge can

prove a defect in the Mongoose only by showing that the

Mongoose’s warnings or instructions concerning the quick-release

hub were inadequate. And, Defendants argue that the district

3
Green testified that open-fork quick-releases are “one of
the best clamping mechanisms in the world if they’re used
properly.” J.A. 220. The context of this testimony
demonstrates that “if they’re used properly” refers to whether
the hubs are installed properly.

14
court correctly ruled, as a matter of law, that Eskridge could

not prove the inadequacy of the Mongoose’s warnings and

instructions.

Eskridge rejects Defendants’ characterization of his

liability theories, however, and counters that the bicycle is

designed defectively because its design creates an unreasonable

risk that even reasonable people attempting to follow well-

crafted instructions will misuse the bicycle. He alternatively

takes issue with the district court’s conclusion that he failed

to forecast admissible evidence that the Mongoose’s warnings and

instructions were inadequate. We agree with Eskridge on both

points and will address them seriatim.

A. Design Defect

Although the district court characterized all three of

Eskridge’s defect theories as alleging use defectiveness,

Eskridge’s first two theories do not allege a “failure to

adequately label, instruct or warn.” Morningstar, 253 S.E.2d at

682. Rather, they assert that the Mongoose’s design creates an

unreasonable danger that no warning could adequately eliminate.

The fact that Eskridge alternatively challenges the adequacy of

the Mongoose’s warnings does not somehow negate the fact that

his primary challenges are to the bicycle’s design.

Defendants maintain that the safety of a particular design

concerns only whether it is safe for its “proper” use. Thus,

15
they argue that it makes no sense to claim that a product is

defectively designed because the design creates an unreasonable

risk of improper use. We do not believe the Supreme Court of

Appeals of West Virginia would agree, however.

In determining whether a product is reasonably safe for its

intended use, “[t]he question of what is an intended use of a

product carries with it the concept of all those uses a

reasonably prudent person might make of the product, having in

mind its characteristics, warnings and labels.” Id. at 683

(emphasis added). Thus, “the seller is not liable when the

product is . . . used in some unusual and unforeseeable way, as

when a wall decorating compound is stirred with the finger, or

nail polish is set on fire, or an obstinate lady insists on

wearing shoes two sizes too small.” Id. (emphasis added); see

also Landis v. Hearthmark, LLC, 750 S.E.2d 280, 291-93 (W. Va.

2013). These statements make clear that sellers are only

entitled to have their users respond reasonably to the warnings

and instructions; they are not entitled to anything more. In

light of Green’s testimony concerning the difficulty of

installing the hub correctly even with perfect instructions, a

reasonable jury could find that even a “reasonably prudent

person” might fasten the Mongoose’s release incorrectly and that

such a mistake was a wholly “foreseeable” outcome. Thus, a

reasonable jury could well accept Green’s testimony that the

16
Mongoose’s failure even to conform to the industry-standard

open-fork design significantly increased the danger of incorrect

installation and that the bicycle was defectively designed for

that reason.

We note that this result is in line with section 2(b) of

the Restatement (Third) of Torts – Products Liability (1998),

which provides that “[a] product . . . is defective in design

when the foreseeable risks of harm posed by the product could

have been reduced or avoided by the adoption of a reasonable

alternative design . . ., and the omission of the alternative

design renders the product not reasonably safe.” 4 Comment l to

section 2 provides that “[i]n general, when a safer design can

reasonably be implemented and risks can reasonably be designed

out of a product, adoption of the safer design is required over

a warning that leaves a significant residuum of such risks.”

Indeed, Illustration 14 in that section of the Restatement is

quite pertinent to the facts before us here. That illustration

discusses the hypothetical example of a garbage truck’s

compaction chamber that warns in large letters on its outside

4
We observe that the Supreme Court of Appeals of West
Virginia has cited the Restatement (Third) of Torts – Products
Liability, for different propositions on other occasions. See
Bennett v. Asco Servs., Inc., 621 S.E.2d 710, 717-18 (W. Va.
2005) (per curiam); Strahin v. Cleavenger, 603 S.E.2d 197, 210
(W. Va. 2004).

17
panels “DANGER—DO NOT INSERT ANY OBJECT WHILE COMPACTION CHAMBER

IS WORKING—KEEP HANDS AND FEET AWAY.” The illustration notes

that “[t]he fact that adequate warning was given does not

preclude [a worker who falls into the machine] from seeking to

establish” that the compactor was defectively designed by virtue

of the fact that there was no guard to prevent such an accident.

See also Sturm, Ruger & Co. v. Day, 594 P.2d 38, 44 (Alaska

1979) (“Where the most stringent warning does not protect the

public, the defect itself must be eliminated if the manufacturer

is to avoid liability.”), modified, 615 P.2d 621 (Alaska 1980),

overruled on other grounds by Dura Corp. v. Harned, 703 P.2d

396, 405 n.5 (Alaska 1985); Uloth v. City Tank Corp., 384 N.E.2d

1188, 1192 (Mass. 1978) (“Whether or not adequate warnings are

given is a factor to be considered on the issue of negligence,

but warnings cannot absolve the manufacturer or designer of all

responsibility for the safety of the product.”).

Similarly here, we conclude that the Supreme Court of

Appeals of West Virginia would hold that despite the fact that

users can be and were instructed regarding how to use the quick-

release hub, that does not protect the seller, as a matter of

law, from liability for failing to adopt a design that would

have provided significantly better protection than any warning

could. See David G. Owen, Warnings Don’t Trump Design: The

Rise and Fall of § 402A Comment j, 153 Products Liability

18
Advisory 1 (Nov. 2001); Howard Latin, “Good” Warnings, Bad

Products, and Cognitive Limitations, 41 U.C.L.A. L. Rev. 1193,

1295 (June 1994) (“Good product warnings may be useful, indeed

necessary, in many accident-prevention settings but their value

is inherently limited and they consequently should not be

treated as legally acceptable alternatives to safer product

designs and marketing strategies.”). Given Green’s testimony

that simply utilizing the industry-standard quick-release design

would have significantly reduced the danger of misinstallation –

with no apparent cost in utility – we conclude that a reasonable

jury could find that the Mongoose was defectively designed. As

the lack of proof of defect was the only basis the Defendants

assert in support of their entitlement to summary judgment on

the issue of liability, we reverse the grant of summary judgment

on Eskridge’s strict liability, breach of warranty, and

negligence causes of action.

B. Use Defect

We also conclude that the district court erred in ruling

that Eskridge failed to at least create a genuine factual issue

regarding whether the Mongoose contained a use defect, i.e.,

whether the Defendants “fail[ed] to adequately label, instruct

or warn.” Morningstar, 253 S.E.2d at 682.

Under Rule 702 of the Federal Rules of Evidence:

19
 A witness who is qualified as an expert by
knowledge, skill, experience, training, or education
may testify in the form of an opinion or otherwise if:

(a) the expert’s scientific, technical, or other
specialized knowledge will help the trier of fact to
understand the evidence or to determine a fact in
issue;

(b) the testimony is based on sufficient facts or
data;

(c) the testimony is the product of reliable
principles and methods; and

(d) the expert has reliably applied the
principles and methods to the facts of the case.

Fed. R. Evid. 702. We review a district court’s evidentiary

rulings, including the admissibility of expert testimony, for

abuse of discretion. See General Elec. Co. v. Joiner, 522 U.S.

136, 141-43 (1997).

Whether a product is defective for failure to warn “is to

be tested by what the reasonably prudent manufacturer would

accomplish in regard to the safety of the product, having in

mind the general state of the art of the manufacturing process,

including design, labels and warnings, as it relates to the

economic costs, at the time the product was made.” Morningstar,

253 S.E.2d at 682–83. The adequacy of the method chosen by the

manufacturer to warn the user of a particular danger is

generally a question for the jury. See Ilosky v. Michelin Tire

Corp., 307 S.E.2d 603, 611 (W. Va. 1983).

20
 Green testified that the Mongoose was defective for failing

to adequately warn users concerning the quick-release system

because the warnings appeared only in the owner’s manual and, in

Green’s experience, users did not read such warnings when they

appeared only in manuals. Regarding Eskridge’s claim that the

Mongoose’s warnings were defective, the district court ruled:

Eskridge has simply provided no admissible evidence
that the warnings were inadequate. Green merely
offered his personal opinion that no one should ever
rely upon an owner’s manual to give warnings or
instructions. This opinion is inadmissible for two
reasons. First, Green does not base this opinion on
“sufficient facts or data” required for expert
opinions to be admissible. FED.R.EVID. 702. Second,
while Green may be an expert on bicycle engineering
and design, there is no evidence that he is qualified
to offer an expert opinion on the standards of the
retail industry.

Eskridge, 2013 WL 596536, at *4 (citation omitted).

As to the district court’s second point, we note that the

Defendants do not even attempt to defend the conclusion that

Green was unqualified to testify as an expert as to the

warnings. See Appellees’ brief at 16 (“The court did not rule

that Mr. Green is unqualified to testify as an expert as to

warnings, rather, the court held that Eskridge ‘has simply

provided no admissible evidence that the warnings were

inadequate.”). A witness may be qualified as an expert “by

knowledge, skill, experience, training, or education.” Fed. R.

Evid. 702. While Green needed only one of those, see Garrett v.

21
Desa Indus., Inc., 705 F.2d 721, 724 (4th Cir. 1983), the record

demonstrated that he had them all. See supra, at 7-8. We

therefore conclude that to the extent the district court ruled

that Green was not qualified to offer an expert opinion

regarding the adequacy of the warning here, the court abused its

discretion.

We also can find no foundation for the district court’s

conclusion that Green’s opinion is not based on sufficient facts

or data. Green testified to extensively studying the issue of

improper installation of quick-release hubs. In Green’s

experience, he found that bicycle owners do not generally read

their manuals and that quick-release warnings are effective only

when a warning label is placed on the quick-release itself or

the warnings are actually provided to the consumer at the point

of sale. Green’s involvement with hundreds of cases of

accidents involving quick-release systems and his decades of

experience in the industry in general certainly provided him

with a strong foundation for testifying regarding those facts.

See Kumho Tire Co., Ltd. v. Carmichael, 526 U.S. 137, 156 (1999)

(“[N]o one denies that an expert might draw a conclusion from a

set of observations based on extensive and specialized

experience.”).

Defendants contend that Green’s own testimony shows that he

in fact has not studied the question of whether people read

22
their bicycle manuals. They particularly note that when Green

testified that most bicycle owners do not read their manuals and

when he was asked whether that was “because riding a bicycle is

kind of intuitive,” he answered, “Well, that’s probably the

reason, although I’ve never studied it.” J.A. 246-47.

Defendants construe this testimony as meaning that Green had

never studied whether people read their manuals. However, when

Green’s testimony is viewed in its entirety, it is plain he was

stating that he never studied why they do not read their

manuals.

Defendants also argue that the district court correctly

determined that Green’s testimony concerning the inadequacy of

the warnings was inadmissible because it was “nothing more than

his personal belief, rather than the professional opinion of an

expert.” Appellees’ brief at 19. Green’s years of experience

as an engineer were well established, however, and he testified

that all of the opinions that he provided in Green’s reports and

testimony were “to a reasonable degree of engineering

certainty.” 5 J.A. 256. That his opinion was a personal opinion

5
To the extent that Defendants are suggesting that Green’s
personal conclusions as a professional engineer are not
admissible because a plaintiff must demonstrate a deviation from
industry standards and customs to prove defectiveness, they are
simply incorrect. See Jones v. Patterson Contracting, Inc., 524
S.E.2d 915, 920-22 (W. Va. 1999) (per curiam).

23
does not somehow mean it was not a professional one. For all of

these reasons, we can only conclude that the district court

abused its discretion in ruling that Green’s testimony

concerning the inadequacy of the method Defendants employed in

communicating their warnings would be inadmissible.

Finally, Defendants suggest that even if Green’s testimony

concerning the inadequacy of the warnings is admissible, they

were entitled to have their instructions successfully followed,

no matter how difficult it was to do so. For this position,

Defendants rely on the statement in Morningstar that “‘[t]he

seller is entitled to have his due warnings and instructions

followed; and when they are disregarded, and injury results, he

is not liable.’” 253 S.E.2d at 683 (quoting W. Prosser, The Law

of Torts, at 668-69 (4th ed. 1971)); see Landis, 750 S.E.2d at

292. However, whether the Mongoose’s warnings and instructions

were “due warnings and instructions” depends on the adequacy of

the method Defendants chose to communicate them to the user,

which Green’s testimony called into question. In any event, as

we discussed regarding Eskridge’s design-defect theories,

Morningstar does not suggest anything more than that users are

required to take notice of the warnings and instructions and act

reasonably with them in mind. See Morningstar, 253 S.E.2d at

683 (“The question of what is an intended use of a product

carries with it the concept of all those uses a reasonably

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prudent person might make of the product, having in mind its

characteristics, warnings and labels.” (emphasis added)).

While Morningstar stated that a seller is not liable when his

warnings or instructions “are disregarded,” id., it does not

suggest that sellers are entitled to have users successfully

follow instructions no matter how difficult the task.

In sum, in light of the admissibility of Green’s testimony

concerning the inadequacy of the Mongoose’s warnings, we

conclude that Eskridge created a genuine factual issue

concerning whether the Mongoose contained a use defect.

III.

Eskridge also argues the district court erred in granting

summary judgment on his claim for punitive damages. On this

point, we disagree.

To prove entitlement to punitive damages, a plaintiff bears

the burden of showing that the defendant acted in a manner that

entitles him to such damages. See Peters v. Rivers Edge Mining,

Inc., 680 S.E.2d 791, 821 (W. Va. 2009). “[T]he wrongful act

must have been done maliciously, wantonly, mischievously, or

with criminal indifference to civil obligations.” Id. (internal

quotation marks omitted). In products liability cases, the

plaintiff may justify a punitive damages award by showing that

the manufacturer, having actual or constructive knowledge of the

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product defect, continued to manufacture and distribute it. See

Davis v. Celotex Corp., 420 S.E.2d 557, 559-61 (W. Va. 1992).

Eskridge has not forecasted evidence that could satisfy

that standard here. Although the Mongoose featured an open-fork

system, the record demonstrated that such a release had the

benefit of allowing the user to remove the front wheel quickly

and without tools. While Green testified that that benefit was

not significant to casual riders, the popularity of the open-

fork system on non-racing bicycles indicates otherwise.

Especially considering that open-fork systems were so commonly

employed in the industry, there was no reason to infer that the

Defendants had actual or constructive knowledge that bicycles

with such systems were inherently defective. Additionally,

although Green opined that the Mongoose’s particular open-fork

system was defectively designed, such that it was significantly

more dangerous than typical open-fork systems, there was no

evidence that the Defendants had any actual or constructive

knowledge of this difference. And finally, while Green

testified that warning the consumer about the quick-release only

in the owner’s manual was not adequate, he conceded it was the

manner in which most bicycle manufacturers and distributors

conveyed that information. Although Green testified that some

manufacturers and distributors took the more extensive measures

that Green recommended, Eskridge presented no evidence that

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Defendants had actual or constructive knowledge that their

warnings were not sufficient. See also Ilosky, 307 S.E.2d at

619 (holding that trial court correctly struck punitive damages

claim on failure-to-warn theory when defendant had taken steps

to warn public of the danger in question and the only issue was

whether these steps were adequate). We therefore affirm the

grant of summary judgment concerning Eskridge’s punitive damages

claim.

IV.

For the foregoing reasons, we reverse the grant of summary

judgment on the issue of liability but affirm on Eskridge’s

claim for punitive damages. We therefore remand to the district

court for trial.

AFFIRMED IN PART,
REVERSED IN PART,
AND REMANDED

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