#### Peter J. H. PROHASKA d/b/a Walker & Co., Appellant, v. The BISON CO., INC., Appellee.

No. II-6.

District Court of Appeal of Florida, First District.

Dec. 21, 1978.

*795Dr. Peter J. H. Walker a/k/a Dr. Peter J. H. Prohaska, pro se.

Mary B. Steddom of O’Neill & Steddom, Ocala, for appellee.

BOOTH, Judge.

This cause is before us on appeal from judgment of the Circuit Court, Marion County, sitting without a jury, awarding the appellee [Bison] damages for breach of contract between appellee and appellant, Peter J. Prohaska, d/b/a Walker & Company, [Prohaska].

The complaint filed by Bison alleged that Prohaska breached a contract between the parties providing for Bison to manufacture, according to the specifications provided by Prohaska, one million sets of sliding door and window locks at a price of $.57 per unit. The complaint sought full contract price plus interest for the goods sold and delivered, some 20,000 lock sets, and for lost profits. Prohaska answered, asserting by way of affirmative defense, that the goods delivered did not meet the specifications of the contract. The trial court awarded Bison $20,438.50 plus interest, representing the full contract price for the lock sets delivered and $40,265.21 representing various costs to Bison of performing the contract.

The lock sets delivered by Bison were admittedly defective and broke easily in use. The principle issue at trial was whether the failure of the lock sets was due to a faulty design provided by Prohaska (as alleged by Bison) or by the failure of the goods to meet the contract specifications (asserted by Prohaska as an affirmative defense). Three expert witnesses testified on the central issue of the cause of the defects in, or failure of, the lock sets. Plaintiff’s witness was Eugene Robert Ha-nus, president and principle stockholder of the firm that acted as subcontractor to Bison in molding the elements used in the production of the lock sets. For defendant Prohaska, expert testimony was received from Craig S. Hartley and David Jenkins, both PhDs, registered professional engineers in Florida and employees of an independent materials testing firm in Gaines-ville. The defendant’s experts were clearly qualified by professional training and experience to express an opinion on the sufficiency of the design to withstand the stresses applied by anticipated use. These witnesses also had performed the standard tests for determining whether the lock sets were in fact manufactured of material meeting the specifications of Lexan 141, as required by the contract. Two independent laboratory test reports established that the representative samples of the lock sets were in fact sub-specifications.

Dr. Hartley testified as follows:

> *796“Q Were you able to determine whether or not, in your opinion, this particular product was of proper design?

> A Yes, sir, I was.

> Q What is that opinion?

> A My opinion, [is] the piece was of satisfactory design and strength to have withstood normal transverse load than (sic) an individual might have applied in attempting to open the door with the lock in place.”

Hartley further stated that his examination of the materials of which the lock sets were manufactured revealed “a line of holes of varying size all the way from oh, perhaps half a millimeter in diameter up to in some cases nearly as large as half the thickness of the piece, which would be about an eighth of an inch running along the center of the bar, irregularly distributed ...” and testified:

> “Q Do you have any opinion as to what affect the results of your findings would have on the particular product itself?

> A Yes, I do.

> Q And what are those, sir?

> A I believe that the presence of bubbles in the center of the piece would have reduced the section available to resist the loads and consequently would have degraded the performance of that piece and similar pieces and would have caused the stresses developed to be higher than those calculated by the designer.”

Defendant’s expert witness Jenkins testified concerning the test he performed, in part as follows:

> “A In values listed in this publication I have before me from General Electric, which has patented this particular plastic composition, lists the typical values for the yield strength of Lexan 141 as nine thousand PSI, that is pounds per square inch. The ultimate tinsel (sic) strength is nine thousand five hundred PSI, and the percent elongation to rupture is typically one hundred and ten percent. Now, the tests which I performed on these ten specimens gave me a range of values which varied from a low of the yield strength of five thousand four hundred seventy-eight pounds per square inch to a high of six thousand six hundred and forty-seven PSI. The elongation ranged from a low of twenty-nine percent to a high of one hundred and twelve percent. The ultimate tinsel (sic) strength varied from seven thousand eight hundred and nineteen pounds per square inch to eight thousand eight hundred and seventy-eight pounds per square inch.

> Q *All of which are substantially less than the properties as specified by General Electric for Lexan 141?*

> A *All except specimen No. 5, which indeed had low yield strength, low ultimate tinsel*(sic) *strength, but an elongation of one hundred twelve percent, which is within reasonable limits for this material.”*(e. s.)

The only testimony introduced by the plaintiff to establish that the lock sets, though admittedly defective, were defective in design rather than in materials, was Mr. Hanus, who was allowed to testify over the objection of the defendant as follows:

> “Q All right. It is your opinion then that the breakage of these units at that point would be due to any degradation caused in the molding, or is it due to a design defect, or what would be the reason it would break?

> MR. FORE: Objection. Same grounds. THE COURT: Objection is overruled. THE WITNESS: I would say that the defect would be in the design that is causing the particular breakage that is occurring. We have tested parts, and had our supplier test specific parts, and have — are certain that the parts are molded properly, *and that it is not a failure of the material, it is a failure of the design.”*(e. s.)

Mr. Hanus had a degree in business administration, had taken some engineering, chemical and electrical courses and had “worked in plastics” for the last twelve years as a custom molder. He was in fact the owner and principle stockholder of the company which did the molding for the lock sets in question. In addition to the testimony objected to, and the defendant’s objec*797tion to this witness as an expert in the first place, the witness testified that he had constructed lock assemblies using the Prohaska design out of *aluminum*and *steel.*In the midst of his testimony, Hanus displayed his creation and broke it easily in his hand. Hanus admittedly had no facilities at his plant for testing the tensile strength of the materials used in the manufacture of the lock sets to determine if it met the quality of specification for Lexan 141.

Florida Rules of Civil Procedure, Rule 1.390(a) defines an expert witness as:

> “A person duly and regularly engaged in the practice of his profession who holds a professional degree from a university or college and has had special professional training and experience or one possessed of special knowledge or skill about the subject which he is called to testify.”

Here, witness Hanus was at best qualified to testify as to the methods and procedures of injection molding plastic components, a matter with which he had experience. The record, however, indicates that he possessed no special knowledge or skill and had no professional training or experience of any sort in measuring the stress capabilities of materials. There was no indication that he had expertise sufficient to allow him to testify concerning the structural sufficiency of the design submitted in the instant case.

In *Keystone Plastics, Inc. v. C & P Plastics, Inc.,*506 F.2d 960 (5th Cir. 1975), the trial court rejected expert opinion testimony by a chemical engineer and professor at the University of Miami in a patent-infringement suit where the product involved was a plastic-handled bristle brush. The appellate court upheld the rejection of the expert testimony, stating:

> “By Professor King’s own admissions on the record, he is not an expert in the art of plastic production equipment, and he had no prior experience in testing bristled propylene plastics.”

In *Wright v. State,*348 So.2d 26 (Fla. 1st DCA 1977), this Court held that fundamental error was committed in the admission of expert testimony by a forensic pathologist who was allowed to state that the injuries sustained by a deceased had been sustained prior to burial. In rejecting that testimony, the court stated (348 So.2d at 31):

> “We hold such evidence was beyond the competence of the medical examiner to give. The theory of allowing evidence of an expert witness to be received by the triers of fact is to understand and determine an issue of fact. He [expert] must be qualified by knowledge, skill, experience, training or education to express an opinion.”

In the instant case, the trial court clearly abused its discretion and committed error in admitting Hanus as an expert witness in areas clearly beyond the realm of any experience or expertise possessed by him. This error cannot be considered harmless since the testimony of Hanus is the only testimony in the record which supports the finding of the trial court that the lock assemblies were “manufactured according to the specifications and design and that any defect was due to a defect in either the specifications or design . . .’’It was on the basis of that finding that the trial court awarded the full contract price for the admittedly defective lock sets.

Accordingly the judgment below is reversed and the cause remanded for a new trial.

BOYER, Acting C. J., and SMITH, J., specially concurring.

SMITH, Judge,

specially concurring:

Prohaska appeals from a judgment of the Circuit Court of Marion County awarding The Bison Company $60,703.71 in damages for Prohaska’s alleged breach of a contract for his purchase from Bison of one million locks, to be fabricated by Bison to Prohas-ka’s design. Prohaska rejected an early shipment on the stated ground that the locks “are not of the specified grade of material and all the samples show substantial degradation,” and apparently repudiated any further obligation. Bison’s damages included the contract price for locks delivered and its expenditures in tooling up for *798full performance of the contract. The scope of our review is limited by the absence of appropriate motions, objections, and pertinent arguments addressed to the trial judge, who tried the case without a jury. Our consideration of the case is further complicated by Prohaska’s lack of legal representation in the presentation of his posttrial motion and this appeal. Yet I think that Prohaska’s *pro se*brief fairly raises the question of the legal effect of the evidence on which Bison prevailed below; I believe the trial court’s judgment misapprehended the legal effect of the evidence; and I therefore concur in the decision to reverse the judgment and remand the case for a new trial.

Prohaska designed a lock and contracted for its production by Bison, who subcontracted to R and R Plastics, of Toledo, Ohio, the molding of the several parts from Lex-an 141, a polycarbonate or plastic material supplied by General Electric. Bison’s role was limited to assembling the parts, riveting them together, and packaging the locks; but by contract Bison was responsible for defects in materials and workmanship.

Bison’s complaint was a simple one, alleging the contract, Bison’s delivery of locks, Prohaska’s refusal to pay, and Bison’s damages. Prohaska’s answer contained affirmative defenses which generally averred that the locks delivered were defective in material and workmanship and that Prohaska was justified in returning the locks and terminating the contract. Bison’s reply to the affirmative defenses was a simple and unnecessary denial; but at trial, without objection from Prohaska on relevancy grounds, Bison adduced evidence in its case in chief anticipating and avoiding Prohas-ka’s affirmative defenses. Through the opinion testimony of the witness Hanus, the principal of R and R Plastics, Bison undertook to prove that the locks were defective in design. Thus, while Prohaska was later to adduce substantial evidence that a miscarriage of R and R’s molding process produced internal bubbles and other degradations of the Lexan material in the locks, reducing their strength below acceptable levels, Bison sought to show that by design the locks were subject to breakage by hand pressure at the rivet hole in one corner of an important part, where the wall thickness was but forty-seven one thousandths of an inch. The witness Hanus testified, and he demonstrated in a courtroom test, that a lock so designed would fail “at that point” whether the lock was molded in Lexan 141, or aluminum, or steel.

Prohaska’s counsel objected to the opinion testimony on the ground that the witness Hanus was unqualified to express the opinions that the lock was defective in design, not in material or workmanship, and that a steel lock would not be stronger “at that point” than the Lexan 141 lock molded under the witness’ supervision. I find no error in the trial court’s admission of the opinion testimony over the stated objection. The witness Hanus testified that he had received formal education in various engineering disciplines, engaged in business for twelve years as a “custom design molder,” had served as president of a plastic engineering society in Toledo, and had substantial practical experience in molding plastic materials. By training and experience, and as the supervising principal of the molding subcontractor jointly chosen by Bison and Prohaska to do the work, Hanus was surely qualified to describe the properties of Lex-an 141, the heat molding process he employed, and the quality controls used to assure the integrity of his products. He was qualified to express the general opinion that his product had no defect of material or workmanship.

I would also sustain the trial court’s finding that Hanus was qualified to express the opinion that the lock was defectively designed “at that point” where he readily broke sample locks, both Lexan and steel, in his hands. He testified that “I do most of my own design work, dictation of design, part design for our customers, this is the role of a custom molder, that we assist our customer in design specifications of particular engineered plastic products.” The witness testified that he had substantial experience in molding parts in aluminum and steel, and there was no suggestion on voir *799dire examination by Prohaska’s counsel that the witness had incompetently molded the steel test lock with which he made his courtroom demonstration. Trial judges are accorded wide latitude in determining the qualifications of proposed expert or skilled witnesses, and the range of their testimony, and their decisions are not to be reversed absent a clear showing of error. See, e. *g., State Road Dept. v. Outlaw,*148 So.2d 741 (Fla. 1st DCA 1963); *Johnson v. State,*314 So.2d 248 (Fla. 1st DCA 1975); *Vitale Fireworks Mfg. Co. v. Marini,*314 So.2d 176 (Fla. 1st DCA 1975); *Home Ins. Co. v. Wiggins,*147 So.2d 157 (Fla. 1st DCA 1962); *Gates & Sons, Inc. v. Brock,*199 So.2d 291 (Fla. 1st DCA 1967).

Although the witness Hanus was in my opinion duly qualified as an expert or skilled witness, the legal effect of his testimony is another matter. Prohaska adduced other expert testimony tending to show, as cause for Prohaska’s rejection of the shipment and his termination of the contract, that test samples of the Lexan locks delivered were substantially below acceptable levels of tensile strength, yield strength, and elongation-to-rupture strength. Relying on Hanus’ testimony, the trial judge found that “this article was manufactured according to the specifications and design, and that any defect was due to a defect in either the specifications or the design of the article.” In the light of Hanus’ testimony, which was the finding’s sole support, the trial court’s finding is to the effect that the sample locks’ failure to attain more than 6,647 pounds per square inch yield strength was inconsequential, because the locks were so designed that, whether molded of steel or Lexan 141, they could be broken by hand at one vulnerably thin corner. In this I conceive that the trial court misapprehended the legal effect of Hanus’ testimony; and that, in Bison’s action for the agreed purchase price and for wrongful termination of the contract by Prohaska, the design defect was irrelevant. Evidence of the design defect should have been excluded upon a proper objection, and the evidence cannot lawfully be given the effect of avoiding Prohaska’s affirmative defenses that the locks were not as warranted. Despite the absence of a relevancy objection to Hanus’ testimony concerning the design defect, which prevents our holding it improper on that ground, the legal effect of that testimony to support the judgment is a matter of law. *Cormier v. Williams,*148 Fla. 201, 4 So.2d 525 (1941).

Were this an action by Prohaska for damages on account of the failure of the locks in use by customers, and for Prohaska’s consequent loss of sales, the existence of a design defect would be pertinent to the issue of why the locks failed. One who sells substandard seed that fails to produce as warranted is liable for the buyer’s loss; and, as the buyer may show that he properly planted, watered, and cultivated the seed and its growth, the seller may show the contrary. *Vaughan’s Seed Store v. Stringfellow,*56 Fla. 708, 726-27, 48 So. 410, 416 (1909). But if the buyer properly rejects the seed and returns it as nonconforming, the seller could hardly be heard to contend that he should be paid anyway because the buyer was incompetent to produce a crop from good seed, or that a drought that year would have doomed the crop anyway. Similarly, the claim tried here was Bison’s claim for the purchase price of locks delivered and for damages attending Prohaska’s termination of the remaining contract. Prohaska’s prior counterclaim had been withdrawn. His defense was simply that, as the locks delivered were not as warranted, but were degraded in molding below acceptable standards, he should not have to pay for them, and he was justified in returning the locks and terminating the remaining contract.

Assuming timely and proper rejection and termination by Prohaska, the design defect did not obliterate his defense. Bison’s duty was to furnish locks molded with acceptable material and workmanship and to Prohaska’s specifications and design. The risk of a design defect was Prohaska’s risk, to be sure; but it was a risk he would encounter in the marketplace, not one that would excuse Bison’s nonperformance and entitle Bison to recover the price of the nonconforming products.

*800The timeliness and propriety of Prohas-ka’s rejection of the shipment and his termination of the contract are governed by Sections 672.601 et seq., Florida Statutes (1977). Factual issues concerning that defense yet remain. Those issues, and the issue made by Hanus’ testimony that there was no defect of material and workmanship, prevent entry of a judgment for Pro-haska.

I therefore concur, for the reasons stated, in the court’s decision to reverse Bison’s judgment and remand the case for a new trial.