Our personal injury law firm did not participate in the lawsuit described in this article.
A man was killed and his wife injured when the Harley-Davidson motorcycle he was riding crossed several lanes and collided with a guardrail. The next day the wife received a recall notice informing her that the main circuit breaker on the motorcycle might have a defect that could cause it to “open due to reasons other than for which it was designed,” therefore, causing a “‘quit while riding’ situation.”
Suit was filed alleging Harley-Davidson was liable under the Washington Products Liability Act.[1]
Testimony was presented that the husband could have been distracted by a loss of power to his motorcycle and a possible restart of the motorcycle or by a malfunctioning motorcycle, and that these distractions could have caused the accident.
The trial court excluded certain expert testimony the injured wife and her husband’s estate wanted to present to the jury.
The expert performed an analysis of metal spatter, relying on the widely accepted principle that blood spatters in a consistent way and that observation of the pattern can establish the spatter source. He then applied his “basic understanding of physics and metallurgy” to conclude that microscopic amounts of molten metal perform in the same manner. Applying these two principles, the expert for the plaintiffs believed he could determine the origin or origins of each pit on the surface of the motorcycle’s circuit breaker and establish the minimum number of times the circuit breaker had tripped.
When a challenge to the scientific evidence alleges that it is novel, Washington courts apply the Frye standard, asking whether “both the underlying scientific principle and the technique employing that principle find general acceptance in the scientific community.”[2] Whether the evidence meets the Frye standard is determined from a number of sources, including the record at trial, available literature, and cases from other jurisdictions.
The plaintiff contended that the metal spatter analysis met the Frye standard for admission because blood spatter analysis is widely accepted within the forensic scientific community and the expert merely applied this technique to the engineering field. Harley-Davidson responded that the methodology had no support in the relevant scientific literature.
The plaintiffs conceded that they cannot point to a single instance of metal spatter analysis within the engineering literature. The Court of Appeals held that the issue is not that spatter evidence is not generally accepted by a scientific community—blood spatter evidence is generally accepted by the forensic community—but that the application of the blood spatter analysis to metal spatter is not generally accepted by the relevant scientific community, i.e., the engineering community.
Furthermore, before determining the validity of his theory, the expert analyzed only two other circuit breakers, neither of which were tripped as many times as the circuit breaker on the motorcycle was when he analyzed it. This falls far short of the rigorous, empiricaltesting scientists expect.
And the plaintiffs conceded that their expert is probably the first engineer to attempt this method of analyzing a liquid metal inside a circuit breaker, which implies that there are no other sources that could provide an indicia of general acceptance. Because the spatter analysis is a novel methodology that has not yet been generally accepted by the relevant scientific community, the Court of Appeals held that the trial court did not err in denying its admissibility at trial.
A defect in a product’s design, manufacture, or warning may cause a product not to be reasonably safe.[3] A design defect is a defect that is present across an entire product line when some aspect of the product is unsafe, while a manufacturing defect is due to factory departure from proper specifications.[4] A failure to warn occurs when the absence of warnings makes the product “not reasonably safe” for consumers’ reasonable expectations.[5]
Here, the jury could reasonably have concluded from testimony of the accident witnesses that the motorcycle was not defective and did not quit while the husband and wife were riding it. There were witnesses at the scene of the accident who testified that the motorcycle continued to run down the guardrail after the couple were thrown off. Experts testified that the eye witness testimony was inconsistent with a motorcycle quitting while being ridden.
An expert for Harley-Davidson testified that a combination of engine heat and loose wiring causes the majority of reported cases of Harley-Davidson motorcycles quitting while being ridden. He further testified that this condition was not present on the motorcycle.
There was also testimony that the delay between Harley-Davidson’s decision to issue a recall and sending notice to dealers and owners was due to National Highway Transportation Safety Administration regulations.
Based on this testimony, the Court of Appeal found that a jury could reasonably have found that (1) use of the type of circuit breaker in question was a reasonable and not a defective design; (2) motorcycles that quit while being ridden with a circuit breaker trip had a combination of faulty wiring and high ambient heat and that the motorcycle had neither of these manufacturing defects; (3) the motorcycle’s engine did not quit running before or during the accident; and (4) Harley-Davidson acted reasonably under the circumstances in its efforts to warn of any possible danger. Therefore, the product liability claim fails because substantial evidence could persuade a rational, fair-minded person that their motorcycle was not “unreasonably safe” based on a defect in design, manufacture, or warnings to consumers.
The Washington Court of Appeals upheld the jury verdict in favor of Harley-Davidson.
[1] Moore v. Harley-Davidson, (39400-6-II, 11/09/2010, Published in part.)
[2] City of Bellevue v. Lightfoot, 75 Wn. App. 214, 222, 877 P.2d 247 (1994).
[3] RCW 7.72.030; see 16 DeWolf & Allen § 16.11, at 521 (3d ed. 2006).
[4] 16 DeWolf & Allen § 16.12, at 521-22 (3d ed. 2006).
[5] 16 DeWolf & Allen § 16.15, at 527-28 (3d ed. 2006).