UNITED STATES CO URT OF APPEALS TENTH CIRCUIT

DILLON ANDREW YEAMAN; MICHAEL YEAMAN; CATHY YEAMAN, Plaintiffs - Appellants,

v. HILLERICH & BRADSBY CO., d/b/a Louisville Slugger, Defendant - Appellee. No. 12-6254 (D.C. No. 5: 10-CV-01097-F) (W.D. Okla.)

ORDER AND JUDGMENT *

Before HARTZ , O'BRIEN , and TYMKOVICH , Circuit Judges.
Should a manufacturer be required to pa y damages because a product performs its intended function too well? High school pitcher Dillon Y eaman was seriously injured when he was struck in the face by a base ball hit from a bat designed, manufactured, and

* This order and judgment is an unpub lished decision, not bi nding precedent. 10th Cir. R. 32.1(A). Citation to unpublished decisions is not prohibited. Fed. R. App. 32.1. It is appropriate as it relates to law of th e case, issue preclusion and claim preclusion. Unpublished decisions may also be cited for their persuasive value. 10th Cir. R. 32.1(A). Citation to an order and judgment must be accompanied by an appropriate parenthetical notation

B (unpublished). Id

. FILED United States Court of Appeals Tenth Circuit 

### June 30, 2014
Elisabeth A. Shumaker Clerk of Court- 2 - sold by Hillerich & Bradsby (H&B), d/b/a Louisville Slugger. Claiming the bat was defective because it propelled the ball too fast , he and his parents brought a products liability action against H&B ba sed on defective design and failure to warn. A jury awarded them damages of $951,095.85. Notwithstanding th e jury’s verdict, the district judge granted H&B’s motion for judgment as a matter of law. He concluded, inter alia , the Yeamans had failed to present sufficient ev idence for a reasonabl e jury to find (1) a defect in the bat making it unreasonably da ngerous (defective design claim) or (2) a dangerous characteristic of the bat triggeri ng a duty to warn (duty to warn claim). Because the Yeamans failed to present any ob jective evidence showing the bat to be dangerous beyond that reasonably to be co ntemplated by the ordinary consumer, we affirm. I. BACKGROUND A. The Incident Dillon Yeaman was, and a pparently still is, an extrao rdinarily gifted baseball player. On June 28, 2006, Norman High Sc hool and Westmoore Hi gh School squared off in a Pure Prairie League baseball game. 1 It was a night game and the home team, Norman, was losing. Dillon, then fifteen-years-old, wa s called upon to pitch for Norman. The batter, seventeen-year-old Chad Hyde, steppe d to the plate. Hyde was over six feet

1 The Pure Prairie League is a summer baseball league in Oklahoma. It is basically an extension of the high school ba seball season but includes incoming freshman and excludes graduated seniors.- 3 - tall and weighed 220 to 225 pounds. He was th e “clean-up” man—the fourth batter in the batting line-up—a spot reserved for better h itters. (Appellants’ App’x, Vol. VIII at 2045.) It was late in the game, the bases were loaded or near load ed, and the pitch count was a full count (three balls, two strikes). The catcher called for a fastball. Dillon delivered. 2 Hyde hit a line drive headed straight at Dillon. The ball hit Dillon in the face, fracturing his frontal bones, frontal sinuses, nasal bones, and the orbital walls of both eyes. Dillon underwent surgery. Doctors inse rted a mesh plate in his forehead and two splints under his nose and rebuilt the bridge of his nose with titanium. Dillon lost his sense of smell and his sense of taste was permanently altered. 3
B. The Bat The line drive came from a 33-inch, 30 -ounce Louisville Slug ger Exogrid bat, Model No. CB71X, first manufactured in 2005 . It was designed with a stiff handle and flexible barrel for “maximum trampoline effect ” or “rebound.” (Appellants’ App’x, Vol. VII at 1813; Vol. XI at 2704.) It s advertisement speaks for itself: The Exogrid concept is si mple: Increase handle stiffness and strength without increasing weight.

2 The speed of Dillon’s pitch is not known. Hyde estimated th e pitch speed was in the upper 70’s to lower 80’s (mph). Dillon’ s coach estimated Dillon’s pitching speed in 2006 was between 80 and 85 mph.

3 Fortunately, Dillon return ed to playing baseball but during the remainder of his high school baseball career, he always wore a protective mask when he was on the field. At the time of trial, he was playing for the Un iversity of Oklahoma. Because he is a .400 hitter and college pitchers do not ba t, Dillon plays in the outfield.- 4 - To achieve this, we start with a one- piece bat, then me tal is trimmed from the handle in a grid pattern to redu ce overall handle weight. The metal is replaced with carbon inserts that are se veral times stiffer and lighter than the metal it replaces. For optimum stiffne ss, we then insert a carbon sleeve with unidirectional fibers that run the length of the handle. Finally, using a combination of heat and extreme pressu re, the inserts, sleeve and metal wall are bonded together to work as a single, solid unit. This re sults in stiffness and strength never possible with aluminum alone. Optimum performance comes from a stiff handle combined w ith a flexible barrel for maximum trampoline effect. And it doesn’t get any stiffer than the Exogrid. 4 (Appellants’ App’x, Vol. XI at 2704.)
C. Bat Performance Standards At the time of Dillon’s injuries, the Pu re Prairie League required all non-wood bats used in the league to be BESR-certified. BESR stands for “Ball Exit Speed Ratio.” (Appellants’ App’x, Vol. X at 2465.) In order to obtain BESR certification, a bat manufacturer must present a prototype bat to a laboratory for testing and the bat must not exceed the BESR limit. At the time the Exogrid was manufactured, the BESR limit

4 The collision between a baseball and a bat is a study of kinetic energy, the energy of moving objects. Wh en a baseball is struck by an aluminum bat, the aluminum deforms inward toward the center of the bat. The kinetic energy from the collision is stored temporarily in the bat. Due to the elas ticity of metals, the ba t returns to its normal shape. When it does so, the stored kinetic en ergy is transferred to the ball, propelling it forward. This is referred to as the “trampoline effect.” George Manning, an engineer at H& B from 1979 to 2000, explained the “trampoline effect” as follows: I think everyone is familiar with the tr ampoline children jump on, and basically it gives as you apply load to it, and then it gi ves back that energy in order to propel you off of it. The trampoline effect on a hollow bat is where the barrel gives under the impact of the ball, and then springs back, and helps propel the ball away from the bat. (Appellants’ App’x, Vol. X at 2464.)- 5 - corresponded to a maximum ball exit speed of 97 mph under laboratory conditions. This limit was set by the National Collegiate Athle tic Association (NCAA) and was based on the best-performing wood bats. The trial evidence was conflicting as to whether the Exogrid was BESR-certified. 5 At the time of trial, the BESR standard was obsolete; the NCAA replaced it with the BBCOR (Ball-Bat Coefficient of Restitu tion) standard. According to George Manning, a former H&B engineer, the tram poline effect is “essentially null” with BBCOR-certified bats because spacers are placed in the barrel of the bat to prevent the phenomenon from occurring. 6 (Appellants’ App’x, Vol. X at 2465.)
D. Pitcher Vulnerability to Batted Balls A pitcher, more than any ot her player on the field, is particularly vulnerable to being hit by a batted ball. Besides the catche r, he is the closest o ffensive player to home plate. But unlike the catcher (who wears pr otective gear) and the other offensive players on the field, the pitcher must deliver the pitch before he can move into a defensive stance. Thus, pitchers are taught to have “their glove up” and be squa re to the plate upon

5 As the district judge instructed the jury, whether the bat was BESR-certified matters not in determining whether it is defective and unreasonably dangerous under Oklahoma law. But, the BESR standard is significant for another reason: the existence of bat performance standards demonstrates the ability to measure bat performance— testing which was not done in this case.

6 The district judge told the jury “this ca se is certainly not about whether the bat involved in this case should have been certified to a BBCOR standard, because it didn’t even exist at that time.” (Appellants’ App’x, Vol. VII at 1633.) Again, we mention the BBCOR standard simply as an example of yet another way to measure a bat’s performance.- 6 - completing their follow-th rough and to “[n]ever take your eye off the ball.” (Appellants’ App’x, Vol. VII at 1569, 1588.) Dillon adm itted to knowing the unique danger pitchers face, but he claimed not to know a ball could be hit so fast he would have no time to defend himself.
E. Daubert Motion The Yeamans retained Dr. James Kent, a kinesiologist, to op ine on the speed of the ball when it impacted Dillo n’s face, the amount of time Dillon had to react to the batted ball, the amount of time an ordinary fi fteen-year-old pitcher needs to react to a batted ball, and the cause of Dillon’s injuries. As to causation, he opined: “It is more probable than not [Dillon’s] injuries were th e direct result of the use of a baseball bat which possessed mechanical proper ties allowing a batted ball to [] attain a flight velocity in excess of a velocity that would otherwise allow for a reasonable time span by a pitcher of his age and developmental level in a follow-through positio n to safely respond to the oncoming batted ball.” (Appella nts’ App’x, Vol. II at 331-32.) H&B filed a motion to exclude this opinion (as well as his others) under Daubert v. Merrill Dow Pharms., Inc. , 509 U.S. 579 (1993). At the Dauber t hearing, Kent admitted factors other than the physical properties of the bat factor into the ball ex it speed; these factors include the speed of the bat and the speed of the pitched ball. Because he did not know Hyde’s swing speed or the speed of Dillon’s pitch, Kent conceded his causati on opinion was unsound: “[My causation opinion] probably would have been better written comparing [the Exogrid] to a wood bat . . . . [T]hat’s really the intent there is, its comparison between wood and engineered- 7 - bats.” (Appellants’ App’x, Vol. VI at 13 45.) Thus, the district judge granted the Daubert motion as to this opinion. As we w ill discuss, Kent’s admission is telling.
F. The Trial The judge denied H&B’s motion for summa ry judgment. Accordingly, the case went to trial before a jury. The Yeamans’ theme throughou t trial was that the Exogrid hit the ball “too fast,” was “too hot of a bat” and had “enhanced pe rformance.” (Appellants’ App’x, Vol. VII at 1525; Vol. IX at 2334.) To support this theory, they called severa l eye-witnesses to the incident. They generally reported Dillon to be an excellent defensive player with sound pitching mechanics who had insufficient time to react to the ball coming from Hyde’s line drive simply because it was traveling too fast. 7 Dillon himself said “[he] had no chance.” (Appellants’ App’x, Vol. VII at 1753.) He explained “[the ball] went from a pea to a beach ball in almost (s nap fingers) like that.” (Appellants’ App’x, Vol. VII at 1752.) Several lay witnesses also testified to the “huge difference” between wood bats and aluminum bats, in particular, BESR-certifie d bats. (Appellants’ App’x, Vol. VII at 1608.) They said they can hit the ball hard er and farther with a BE SR-certified bat. They also said BESR-certified bats have more “p op” and are more “forgi ving” than wood—“if you mishit [a ball with a BESR-certified bat], it’s still got [a] better o pportunity to go into

7 When not pitching, Dillon mostly played third base, which one witness described as the “hot box”—the position “for the guys w ith the best reaction.” (R. Vol. VII at 1619.)- 8 - play”; “[i]f you mishit a ball with a wood bat, it’s not going to go anywhere.” (Appellants’ App’x, Vol. VII at 1597, 1609.) Some of these witnesse s also testified that BBCOR-certified bats performed like wood bats and the ball can be hit farther with a BESR-certified bat than a BBCOR-certified one. The Yeamans also called two experts—William Cole man, a metallurgist, and Kent. Coleman cut open an exemplar Exog rid bat, measured the wall thickness, and performed hardness testing and chemical anal ysis of the material s making up the bat. He told the jury the bat was constructed to op timize handle strength and stiffness. Thus, when the bat impacts w ith the ball, increased deflection oc curs at the barrel instead of the handle. This design, he explained, maximizes the trampoline effect or energy transfer to the ball at impact, increasing the ball’s exit speed and reducing the time a player in the field has to react to the ball. Importantly, Coleman did not test th e performance of the Exogrid, determine the exit speed of balls off the Exogrid, or compare its performance with that of wood bats or other metal bats. He admitted such tests could have been done but “that was not my role.” (Appellants’ App’x, Vol. VII at 1824.) Kent examined the medical imaging of Dillon’s injuri es and concluded the force necessary to cause those inju ries (the force-to-fracture) was, conservatively speaking, 2,684 pounds. 8 Plugging this number into a simple physics formula, he determined the

8 Kent primarily relied on a study where a 48-millimeter spherical steel anvil was dropped vertically down on the skulls of tw elve unembalmed intact human cadaver heads (ages 50 to 76 years-old) at 16 to 18 mph and the force nece ssary to fracture the skulls was recorded. The mean for ce necessary to do so in the dynamic load tests was 2,684 (Continued . . . )- 9 - speed of the ball at impact with Dillon’s face was 100 to 105 mph. 9 Thus, he concluded the ball must have left the bat at least at th is speed. He then figu red the distance the ball must have traveled to hit Dillon was 52 to 55 feet. 10 Again, plugging both the speed and the distance into a simple formula, 11 he determined the time Dillon had to react to the ball was 336 to 374 milliseconds. Look ing to the scientific literatur e, he said a typical fifteenyear-old pitcher n eeds, at a minimum, 380 to 400 milliseconds to react. 12 Dillon’s reaction time fell short by at most 64 milliseconds.

pounds. According to H&B, Kent improperly relied on this study to support his force-tofracture estimate because it does not adequate ly imitate a person be ing hit horizontally by a lighter and smaller baseball at a high speed and the anvil did not strike the cadaver skulls in the same location wh ere Dillon was struck by the ba seball. As we will explain, the issue is whether the Yeam ans presented sufficient evid ence of the ball exit speed expected from a bat by the ordinary ba t consumer and whether the ball exit speed produced by the Exogrid exceed ed those expectations. Ev en accepting Kent’s opinions, the answer is no. Thus, we need not decide whether Kent’s opinions should have been stricken under Daubert

. 9 fd=1⁄2mv 2 . The force (f) was 2,684 pounds. Considering the depths of Dillon’s fractures as well as the deform ation of the ball and Dillon’s so ft tissue, Kent determined the total distance (d) over wh ich the velocity (v) of the ball was acting was .03904 to .0433 feet. The mass (m) of the baseball was .00097 slugs. Plugging these numbers into the equation led to a velocity of 146.98 to 154.8 feet per second or 100.2 to 105.52 mph.

10 The standard distance between home plat e and the pitching rubber is sixty feet, six inches. Kent figured a pitc hing follow-through of five to eight feet. In other words, he estimated Dillon was five to eight feet cl oser to home plate after pitching the ball. Dillon testified his pitching stri de is approximately six feet.

11 Time (t) equals distance (d) divided by velocity (v).

12 H&B countered Kent’s opinion with th e testimony of its own expert, Dr. Doug Young, also a kinesiologist. Young opined “a player or pitcher who has the general age, skill and experience of [Dillon] wo uld reasonably be expected to avoid a ball hit back at him at about 105 miles an hour or so” and thus Dillon coul d have avoided the ball hit by Hyde. (Appellants’ App’x, Vol. IX at 2240.) He based his opinion on a study he (Continued . . . )- 10 - Notably, Kent did not present himself as a bat expert. And he did not consider or rule out other potential causes for the accident such as pitcher fatigue or inattention. Consistent with the judge’s Daubert ruling, he did not offer an opinion as to whether the performance of the bat or a failure to warn of the bat’s capabilities were the cause of Dillon’s injuries.
G. Motion for Judgment as a Matter of Law The jury found for the Y eamans on both the defective design and failure to warn claims, awarding $871,000 to Dillon and $80,095.85 (the amount of Dillon’s medical expenses) to his parents. 13 The victory was short-lived. 14 The district judge granted H&B’s motion for judgment as a matter of law. As to the defective design claim, he started with the Yeamans’ th eory—the Exogrid is defectiv e and unreasonably dangerous because it hits the ball too fast , not allowing an ordinary fifteen-year-old sufficient time to react. Thus, he reasoned, an “acceptable” ba t, i.e., a non-defective bat, is one which allows balls to be hit only at speeds which an ordinary fifteen-year-old has time to react conducted in 2001 for H&B in which he attemp ted to analyze pitcher reaction time. The study involved high school and collegiate pitc hers. The participants pitched the ball and if the ball hit the strike zone a pitching mach ine or air cannon would fire a ball back at the participant. The maximum speed of the ball fired at the participants was 111 mph for the high school participants and 129 mph for the collegiate par ticipants. Not one participant was hit with the ball; all were able to track it. But his study was not perfect— the participants wore protec tive gear, there was a slight delay between the pitch hitting the strike zone and the ball being fired ba ck at them, and there was an element of anticipation—all participan ts knew a ball would be fired back at them.

13 The jury rejected H&B’s assumption of the risk defense and the Yeamans’ demand for punitive damages. Neither of these issues is before us.

14 “It ain’t over till it’s over.” Yogi Berra- 11 - to. Therefore, he concluded the Exogrid mu st be judged on a relative scale, not an absolute one. Using this standard, he found the Yeamans’ eviden ce missed the mark— there was no evidence u pon which a jury could rationally find the performance of the Exogrid bat exceeded the perfo rmance of an acceptable bat. “Where the difference between an acceptable bat and an actionable ba t is on the order of 64 milliseconds (64 thousandths of one second), th e subjectively perceived performance of the Exogrid bat as seen at the ballpark one night simply cannot provide a rational basis for a finding that the performance of the Exogrid bat, as wiel ded by Chad Hyde, made it defective and unreasonably dangerous versus the performan ce of an acceptable bat.” (Appellants’ App’x, Vol. V at 1282.) Rather, the judge said the Yeamans were required to show how fast the Exogrid could make a ball fly as compared to an “accepta ble bat”—testing which could have been done but was not. (Appellants’ App’x, Vol. V at 1282.) For the same reasons, the judge set aside the jury’s verdict on the failure to warn claim. On a relative scale, the Yeamans’ evidence failed to show the Exogrid has a dangerous characteristic—propels the ball too fast—triggering a duty to warn. 15
II. DISCUSSION The Yeamans say the judge should have let the jury’s verdict stand. H&B, of course, claims the judge simply applied the law. It also provides an alternative basis for affirming. It suggests a baseball bat cannot, as a matter of law, be deemed defective for

15 The district judge also decided the Ye amans had failed to show causation on either the defective design or failure to warn claim. Given our resolution of the case, we need not address the causation element.- 12 - hitting a ball too well because that is its intended purpose. We address the latter argument first.
A. Defective as a Matter of Law A bat’s purpose is to propel a baseball. Indeed, consumers gauge the desirability of a bat on how well it performs that functio n. According to H&B, a bat cannot be defective, as a matter of law, when it perfo rms that function too we ll. “Just as a Boy Scout knife is not defective because had it be en duller it would not ha ve cut a hand, a bat is not defective because it could have been de signed to hit the ball softer and slower.” (Appellee’s Br. at 26 (footnote omitted).) The district judge found this argument “appeal[ing]” but decided it was outside the re alm of settled Oklahoma law. (Appellants’ App’x, Vol. V at 1281.) We agree. Under Oklahoma law, a products liab ility plaintiff must prove, among other things, a defect in the product making it unreasonably dangerous. Kirkland v. Gen. Motors Corp. , 521 P.2d 1353, 1363 (Okla. 1974). The jury was instructed : “A product is defective when it is not reasonably fit for the ordinary purposes for which such product is intended or may reasonabl y be expected to be used.” (Appellants’ App’x, Vol. III at 839.) It was also told for the Exogrid to be unreasonably dangerous, it “must be dangerous to an extent beyond that which would be contemplated by a person who might be reasonably expected to be affected by th e bat with the ordinary knowledge common to baseball players.” 16 (Appellants’ App’x, Vol. III at 840.) See Kirkland , 521 P.2d at

16 These instructions derive from Instru ction Nos. 12.2 and 12.3 of the Oklahoma (Continued . . . )- 13 - 1362-63. This is referred to as the consumer expectations test. Lamke v. Futorian Corp. , 709 P.2d 684, 686 (Okla. 1985); see also Braswell v. Cincinnati Inc. , 731 F.3d 1081, 1087 (10th Cir. 2013).
In Lamke , Lamke suffered severe burns when her cigarette fell and ignited the sofa upon which she was sitting. 709 P.2d at 685. She brought a pr oducts liability action against the cigarette manufacturer. Id. She claimed the cigarette was unreasonably dangerous because it had special paper that prolonged its burning and increased the intensity of the cigarette’s fire; she also argued the cigarette should have been selfextinguishing. Id. at 686. Applying the consumer expectations test, the Oklahoma Supreme Court concluded the cigarette was not unreasonably dang erous because Lamke had failed to show a defect in the cigarette rendered it less safe th an expected by the ordinary consumer: This is particularly true in case s such as the inst ant case where the “defect” alleged is the failure to mi nimize an obvious danger which is inherent in the product itself. In or der for a cigarette to be used, it must burn. The simple allegation that th e cigarette should have been selfextinguishing or that some other cigare ttes would not have burned as long, nor as intensely, does not establish that the cigarettes involved in this case were more likely to cause the fire than might be expected by the consumer. Id. Similarly, in Wheeler v. HO Sports, Inc. , Wheeler’s husband drowned while wakeboarding wearing a life-vest sold by the defendant. 23 2 F.3d 754, 756 (10th Cir.

Uniform Jury Instructions—Civ il. Neither side raises an y objections to the jury instructions.- 14 - 2000). Wheeler sued claiming, inter alia , the vest was defective because it contained less flotation material (7.1 pounds ) than necessary to float an average person (10 pounds). Id

. at 758. But the vest was not designed for use by the average person; rather, it was designed for use by the experi enced wakeboarder, one who is willing to forego some degree of flotation fo r enhanced mobility. Id. Thus, “[p]laintiff’s assertion that the vest was not designed to function as an ordinary life vest is answered squarely by the fact that the vest was not designed to be an ordinary vest.” Id. We concluded (under Oklahoma law) Wheeler had failed to show the vest’s design made it unreasonably dangerous for its intended purpose, i.e., “that ordinary consumers expect more than 7.1 pounds of flotation material in this type of vest.” Id. at 758. Lamke and Wheeler are not helpful. In neither case did the court hold a s a matter of law the product could never be considered unreasonably dangerous when the injuries occurred due to a “defect” inhere nt in the product itself (a ci garette) or when used for its intended purpose (life-vest for experienced wake boarders). Rather, the courts determined the relevant products were not defectiv e under the consumer expectations test. A closer case is Atkins v. Arlans Dep’t Store of Norman, Inc. , 522 P.2d 1020 (Okla. 1974). Ten-year-old Brett misthrew a lawn dart, hitting tw elve-year-old Thomas in the eye. Id. at 1021. Thomas a nd his parents brought a products liability action against the manufacturer of the lawn dart game. Id. at 1020. They sa id the manufacturer “designed and manufactured a weighted projectile with a sharp metal shaft protusion possessing the inherently danger ous capability of penetration of the human body and the- 15 - skull and was therefore unsafe for its intended use.” Id. at 1021 (quotations omitted). The court decided: [T]he dart was not dangerous to the extent beyond that which would be contemplated by the ordinary consumer with the ordinary knowledge common to the community as to its characteristics. There are many toys and playth ings, perfectly harmless and inoffensive in themselves, but whose common use can be perverted into a dangerous use or design, and there are very few of the most harmless toys which cannot be used to injure anothe r. The dart’s propensities to cause injury is demonstrated by th e injury sustained but the fact that an injury was sustained does not necessarily mean that the manufacturer or retailer are liable for those injuries. Id. at 1022. It relied on two Illinois court decisions, one involving an air dart and the other a boomerang. Id. at 1021. Both courts said toys , such as baseballs, baseball bats, and darts, cannot be categorized as dangerous instrument alities even though they have the capacity to injure the user or others in the course of their ordinary use. Id. Atkins ’ reliance on the Illinois cases could be in terpreted as its adoption of a per se rule: baseball bats cannot be considered unreasonably dangerous as a matter of law, at least when the alleged defect is they perform their intended function too well. But that stretches Atkins too far. Like Lamke and Wheeler , the court applied the consumer expectations test to conclude the la wn dart was not un reasonably dangerous. Moreover, as the Yeamans point out, Atkins was decided in 1974; the Illinois cases relied on by Atkins in 1966 and 1967. As the evidence at trial bore out, the baseball bat has substantially evolved since then. 17 Thus, as the district judge aptly stated: “[I]t is

17 H&B made its first baseball bat in 1884. The first bats it manufactured were (Continued . . . )- 16 - quite easy to accept the proposition that there is , at least conceptually (whether or not within the realm of actual design capability), some upper limit of acceptable performance of a bat . . . .” (Appellants’ App’x, Vol. V at 1281.) Maurice Archer, the President of H&B’s Louisville Slugger Division at the tim e the Exogrid was developed, admitted so. And Bill Clark, the President of the Louisville Slugger Division at the time of trial, conceded a pitcher should be a llowed enough time to react to a batted ball. Moreover, by adopting standards governing (and limiting) the performance of non-wood baseball bats, the regulators of college and youth baseball s eem to suggest a baseball bat could be too powerful to be used safely in the sport. 18 Finally, H&B relies on cases from other circuits involving the enhanced performance of BB guns. See Moss v. Crosman Corp. , 136 F.3d 1169, 1173-75 (7th Cir. 1998) (enhanced mu zzle velocity); Marzullo v. Crosman Corp. , 289 F. Supp. 2d 1337 (M.D. Fla. 2003) (same). In consid ering a failure to warn claim, the Moss court concluded the BB gun wa s not unreasonably danger ous because it “did not place users at risk of injuries different in kind from t hose an average consumer might anticipate” and

made from wood. In 1974, the NCAA first allowed al uminum bats to be used in collegiate baseball games. Several years later, H&B began manufacturing aluminum bats. The aluminum bat has evolved from a pur e aluminum bat to a bat consisting of both aluminum and composite materials. Indeed, the Exogrid is made of both aluminum and a carbon composite. Thus, it is technically impr oper to refer to the Exogrid or any metal bat as an aluminum bat; these bats are more appropriately referred to as “non-wood” bats.

18 Metal bats are not allowed to be us ed by professional baseball players. Interestingly, one of the main reasons the NC AA began allowing metal bats to be used in collegiate play was economics—wood ba ts break and have to be replaced.- 17 - the evidence “overwhelmingly [showed] the average person in the community knew the general kind of physical risk posed by a BB gun.” 136 F.3d at 1175. Similarly, the Marzullo court held the muzzle velocity of a BB gun “is not, as a matter of law, a design defect and is not a defective condition.” 289 F. Supp. 2d at 1342. These cases are not binding in Oklahoma. Moreover, as the dist rict judge aptly obse rved—BB guns are not normally used on other people whereas baseball bats are designed to propel a ball directly at human beings. Thus, “[t]he analogy . . ., though instructive, is not perfect.” (Appellants’ App’x, Vol. V at 1281.) It is not clear, as a matter of Oklahoma law, that a baseball bat cannot be considered unreasonably dangerous for propelling a ball too fast. 19 Rather than speculate, we can affirm on other grounds, to which we now turn.
B. Judgment as a Matter of Law We review de novo a district court’s gr ant of a motion for judgment as a matter of law. Bannister v. State Farm Mut. Auto. Ins. Co. , 692 F.3d 1117, 1126 (10th Cir. 2012). We will affirm if “a reasonable jury would no t have had a legally sufficient evidentiary basis to find for” the Y eamans on their claims. Id. (quotations omitted). In conducting

19 H&B says a ruling in its favor on this ground is important because it would broadly preclude as a matter of law “ill-conceived claims of ‘over-performing’ bats,” like those raised by the Yeamans. (Appellee’s Br. at 24.) But in diversity cases, like this one, our task is “simply to ascerta in and apply the state law.” Kokins v. Teleflex , Inc., 621 F.3d 1290, 1304 (10th Cir. 2010) (“It is axiomatic that state c ourts are the final arbiters of state law.”) (quotations omitted). If H&B want ed such a ruling, it could have kept the case in Oklahoma state court, where it was orig inally brought, rather than removing it to federal court.- 18 - our review, we “construe the evidence and in ferences most favorably to the nonmoving party, and refrain from weighing the evidence, passing on the credibility of witnesses, or substituting our judgment fo r that of the jury.” Id. (quotations omitted). In diversity cases, like this one, federal law dictates whether judgment as a matter of law is appropriate but “we examine the evidence in terms of the underlying burden of proof as dictated by state law,” in th is case, Oklahoma law. Id. (quotations omitted).
1. Design Defect Claim Oklahoma law requires a plaintiff in a pr oducts liability action to prove: (1) the defective product was the cause of the injury; (2) the defect was in the product at the time it left the manufacturer’s possession and cont rol; and (3) the defect made the product “unreasonably dangerous” to the consumer. Kirkland , 521 P.2d at 1363. Unreasonably dangerous means “[t]he article sold must be dangerous to an extent beyond that which would be contemplated by th e ordinary consumer who purch ases it, with the ordinary knowledge common to the co mmunity as to its characteristics” (the consumer expectations test). Id. at 1362-63 (adopting de finition of Restatemen t (Second) of Torts § 402A). Evidence a product could be made “saf er” does not establish it was less safe than would be expected by an ordinary consumer. Woods v. Fruehauf Trailer Corp. , 765 P.2d 770, 775 (Okla. 1988). Moreover, the mere fact an accident occurs creates no presumption the product was defective. Kirkland , 521 P.2d at 1363.- 19 - The Yeamans complain the district judge erroneously required evidence comparing the Exogrid to an “acceptable” bat and laboratory tests measuring the performance of the Exogrid. They say neither is required under Oklahoma law. Rather, according to them, the consumer expectations test is a flexible one and simply asks whether the product’s dangers are beyond that which an ordinary consumer would contemplate. The Yeamans allege their eviden ce showed an ordinary consumer, in this case a fifteen-year-old pitcher, expects a bat to hit a ball at such a speed as to allow him sufficient time to react to it, and the Exogrid did not satisfy this standard because it allowed Hyde to hit a ball at a speed too fast for Dillon to defend himself. 20 Thus, according to the Yeamans, th e jury reasonably found the Exogrid was unreasonably dangerous and the judge erroneousl y set aside the jury’s verdict. The Yeamans misinterpret the trial judge ’s decision. He did not say Oklahoma law requires comparison or labora tory testing in all instances. Rather, he properly looked to the theory advanc ed by the Yeamans. See, e.g., Bohnstedt v. Robs con Leasing LLC , 993 P.2d 135, 136 (Okla. Civ. App. 1999) (construction work er killed when motor grader backed over her; while defendant argued its motor grader was not defective because

20 Yet they declined to say at oral argumen t that any bat which could hit the ball at a speed giving the average fift een-year-old pitcher insuffici ent time to react to it is unreasonably dangerous.- 20 - someone had tampered with the motor grader’s reverse warning alarm, plaintiff’s theory was the motor grader was def ective because its alarms were easily tampered with and such tampering was foreseeable to defendan t). The Yeamans contended the Exogrid is unreasonably dangerous because it hits the ball “too fast,” i.e., it allows a batter to hit a ball at a speed (the ball exit speed) which does not allow an aver age fifteen-year-old pitcher the time he needs to react to the ball to avoid being hit. Ac cordingly, Oklahoma’s consumer expectations test requires the Yeam ans to show the ball ex it speed produced by the Exogrid renders it dangerous or less safe than expected by the ordinary consumer. Logically then, they had to establish (1) the ball exit speed reasonably expected by the ordinary baseball bat consumer (what the district judge referre d to as an “acceptable bat”) and (2) the ball exit speed of th e Exogrid. (Appellants’ App’ x, Vol. V at 1282.) Only with this evidence could th e jury rationally determin e whether the Exogrid was unreasonably dangerous because it hit the ball beyond that c ontemplated by the ordinary baseball bat consumer. (Appellants’ App’x, Vo l. V at 1282.) Their evidence fell short. As noted above, several lay witnesses te stified to aluminum bats, in particular BESR-certified bats, having more pop than wood or BBCOR-certified bats. In other words, a ball can be hit farther and faster w ith a BESR-certified bat than with a wood or BBCOR-certified bat. But, even assuming the ball exit speed ofa wood or BBCORcertified bat is what is reas onably expected by the ordina ry consumer, these witnesses failed to present any objective evidence qu antifying the ball exit speed of the various bats.- 21 - The Yeamans’ experts did not fill th e gap. While Coleman explained the Exogrid’s design resulted in maximum trampolin e effect and the evidence at trial showed the trampoline effect does not occur with wood or BBCOR-certified bats, Coleman did not test the ball exit speed of a wood or BBCOR- certified bat. He ad mitted he could have but was never asked to do so. Neither did Kent conduct any such testing. The Yeamans also fail ed to present any evidence esta blishing the ball exit speed of the Exogrid. Several eye-witnesses testified th ey had never seen a ball hit as hard or as fast as the one hit by Hyde. Dillon himself testified the ball was hit so fast he did not have time to react. None of these lay witnesses, howev er, quantified the exit speed of the ball. 21

21 Nor could they. H&B moved to excl ude any opinions from lay eye-witnesses regarding whether Dillon had sufficient time to react to the ball. Th e district judge ruled such testimony was admissible if the nece ssary foundation was established, i.e., the witness actually observ ed the incident and had a good understanding of the game of baseball, in particular, the Pure Prairie Leag ue level of play. In so ruling, the judge relied, in part, on the proposition that lay w itnesses may offer their opinion on matters such as the speed of a vehicle. See, e.g., Gust v. Jones , 162 F.3d 587, 595 (10th Cir. 1998); United States v. Carlock , 806 F.2d 535, 552 (5th Cir. 1986); Jordan v. Great W. Motorways , 2 P.2d 786, 788 (Cal. 1931); St. Louis –San Franci sco Ry. Co. v. Fox , 359 P.2d 710, 713 (Okla. 1961). But we appreciat e a discernable difference in estimating the speed of a vehicle and estimati ng the speed of a baseball traveling less than sixty feet in less than one second. And when reaction time is measured in milliseconds it is hard to imagine how the average lay witness sitting in the bleachers could offer comparative testimony meeting any of the requirements of Rule 701 of the Federal Rules of Evidence—rationally based on perception, helpfu l in determining a fact and not based on specialized knowledge. Scien tific testing was necessary to establish the critical speeds and times in this case, events well beyond the ken of almost every lay witness. Even an extraordinarily gifted lay witness would have to be strategically located in order to offer anything close to a useful opinion. The la y opinion evidence appe ars to be little more than partisan cheerleading.- 22 - Coleman said the Exogrid’s stiff handl e and flexible barrel maximizes its trampoline effect which in turn results in greater ball exit speed. However, he did not test the Exogrid to determine its ball exit speed. Again, he ad mitted such tests could have been done but it was simply not his role to do so. Kent did opine as to the exit speed of the ball which hit Dill on—100 to 105 mph. However, he did not consider or rule out othe r causes contributing to the speed. As the evidence at trial bore out, and as Kent himself admitted at the Daubert hearing, numerous variables, besides the performance of the bat, affect how fast a ball exits a bat. These factors include, among other things, the speed and type of pitch and the ability and swing speed of the batter. Kent’s testimony simp ly estimates the ball exit speed in a unique event on a certain day in June 2006, not the ball exit speed produced by the Exogrid in general. In sum, without any objec tive evidence as to the ba ll exit speed expected by the ordinary baseball bat consumer or the ball ex it speed produced by the Exogrid, there was no basis for a rational jury to reasonably find the Exogrid to be dangerous beyond that expected by the ordinary bat consumer. 22 The district judge did not err in correcting the

22 The Yeamans rely on a district court case and state court cases from Montana and California in which pitchers prevailed in products liability actions against H&B after they suffered serious injury or death from a ball struck with a non-wood bat manufactured and designed by H&B. See Brett v. Hillerich & Bradsby Co., d/b/a Louisville Slugger , Case No. CIV-99-981-C (W .D. Okla. Jan. 24, 2002); Patch v. Hillerich & Bradsby Co. , 257 P.3d 383 (Mont. 2011); Sanchez v. Hillerich & Bradsby Co. , 128 Cal. Rptr. 2d 529 (Cal. Dist. Ct. App. 2002). Sanchez is distinguishable. It merely determined summary judgment was inap propriate; it involved an incident which (Continued . . . )- 23 - jury’s verdict based on defective design. 23

occurred after the NCCA had adopted rules to decrease the ball exit speed of non-wood bats but before the rules were implemented, and the plaintiffs’ evidence included the testimony of the bat’s designer who said the bat allowed a batter to hit balls at speeds in excess of that which would allow a p itcher sufficient time to react. Sanchez , 128 Cal. Rptr. 2d at 707, 709, 713-15. In Patch , the jury found the bat was not designed defectively but concluded H&B was liable fo r failing to warn of the enhanced risks associated with the bat’s use. 257 P.3d at 243. While the court noted the evidence demonstrated Patch had 376 m illiseconds to react to the ba tted ball when he needed 400 milliseconds, whether this evid ence was sufficient to estab lish the bat was defective or unreasonably dangerous was not before the court. Id. at 243 n.2, 244-51. Finally, in Brett , the jury returned a verdict in favor of the plaintiffs on a defective design claim. Case No. CIV-99-981-C at 1-2. It appears the evidence in that case was similar to that presented here but did not in clude any expert testimony. Id. at 5-7. Nevertheless, the district court denied H&B’s motion fo r judgment as a matter of law. Id. at 8. Brett appears to have been wrongf ully decided and entitled only to a place in ether of anomalous results.

23 If, as we hold, the district judge is corre ct, the Yeaman’s claim to be entitled to a new trial. They cry havoc—the judge provided them no notice prior to trial (when they could have done something to fix it) they wo uld be required to conduct laboratory testing of the Exogrid and compare it to an “acceptable bat.” We are not persuaded. The cases they rely on (1 ) are misstated, see Walker v. Kelly , 593 F.3d 319, 331 (4th Cir. 2010) (affirming the district court, not remanding fo r lack of fair notice), (2) involve a change in the legal standard ap plicable to the case, see United States v. Pacheco , 434 F.3d 106, 115-17 (1st Cir. 2006) (the di strict court narrowed the criminal charges to a “spoke” conspiracy but instructed the jury on a “hub” conspiracy); or (3) involve a change in the law while the case was on appeal, see Lee Cnty. Branch of NA ACP v. City of Opelika , 748 F.2d 1473, 1479-81 (11th Cir. 1984) (significa nt change in law after trial). Here, the district judge did not change the legal sta ndard applicable to the case nor did the law change. The Yeamans knew at all times their burden of proof ; their evidence failed to meet it. Moreover, at the summary judgment hear ing, the judge specifically asked the Yeamans’ counsel: What will be your objective evidence—and I use the word “objective” advisedly. I’m not talking about coaches saying, gosh, almighty, that bat really makes that ball fly fast. That’s subjective. What will be your objective evidence that this bat significantly increased the risk to the pitcher be yond that which was already inherent in the game? (Appellants’ App’x, Vol. VI at 1421.) (Continued . . . )- 24 - 2. Failure to Warn The district judge recogni zed some inconsistency in Oklahoma law regarding the failure to warn, specifically, whether a product must be unr easonably dangerous or have dangerous characteristics in order to trigger th e duty to warn or whet her a failure to warn in and of itself can render a pr oduct unreasonably dangerous. Compare Edwards v. Basel Pharm. , 933 P.2d 298, 301 (Okla. 1997), with Duane v. Okla. Gas & Elec. Co. , 833 P.2d 284, 285-86 (Okla. 1992). Relying on Ok lahoma’s uniform jury instructions, he concluded the product must have dangerous ch aracteristics in order for the manufacturer to have a duty to warn . The jury was so inst ructed. Again, neither side contests the jury instructions given. For the same reasons they believe the ju dge erred in concluding they had failed to show the Exogrid was unreasonably danger ous, the Yeamans claim he erred in concluding there was insuffici ent evidence to conclude the Exogrid did not have a dangerous characteristic triggering the duty to warn. But, for the same reasons the Yeamans failed to show the Exogrid was unrea sonably dangerous, they failed to show it had a dangerous characteristic. The duty to warn was not triggered and the jury’s verdict in favor of the Yeamans on this claim cannot stand.

The judge also informed the Yeamans he had “serious concerns” with the case, was not particularly in agreement w ith the district court decision in Brett , see supra n.22, and denied summary judgment with “some se rious misgivings.” (Appellants’ App’x, Vol. VI at 1431-32.) He repeated his conc erns at the close of the Yeamans’ evidence (outside the presence of the jury). It is di singenuous for the Yeaman s to now claim they had no notice.- 25 - AFFIRMED. We GRANT the Yeamans’ motion to file Volumes XII-XVII of the appendix under seal. 24 Entered by the Court: Terrence L. O’Brien United States Circuit Judge

24 While the Yeamans’ motion only seeks to seal Volumes XIII-XVII, it is clear they meant to include Volume XII. The materials sought to be sealed are: (1) Dillon’s medical records which are not readily amenab le to redaction, (2) materials from the NCAA which were provided pursuant to a confidentiality agreement among the parties, and (3) H&B’s trade secrets. Although we have a strong policy against sealing of the record, the limited seali ng requested in this case is appr opriate. The materials are not necessary to an understanding of th e facts, arguments, or our decision.