PUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

DANIEL FREEMAN,

Plaintiff-Appellant,

and

MARY FREEMAN,

Plaintiff,

No. 96-1626

v.

CASE CORPORATION, a/k/a J.I. Case

Company, A Tenneco Corporation;

CASE INTERNATIONAL,

Defendants-Appellees.

Appeal from the United States District Court

for the Western District of Virginia, at Abingdon.

Glen M. Williams, Senior District Judge.

(CA-94-63-A)

Argued: May 6, 1997

Decided: July 8, 1997

Before HAMILTON and MOTZ, Circuit Judges, and LEGG,

United States District Judge for the District of Maryland, sitting

by

designation.

_________________________________________________________________

Reversed and remanded by published opinion. Judge Motz wrote the

opinion, in which Judge Hamilton and Judge Legg joined.

_________________________________________________________________

COUNSEL

ARGUED: J. Farrest Taylor, CHERRY, GIVENS, PETERS,

LOCKETT & DIAZ, Dothan, Alabama, for Appellant. Michael Har-
per Gladstone, MAYS & VALENTINE, L.L.P., Richmond, Virginia,

for Appellees. ON BRIEF: John K. Givens, CHERRY, GIVENS,

PETERS, LOCKETT & DIAZ, Dothan, Alabama, for Appellant.

Dabney J. Carr, IV, MAYS & VALENTINE, L.L.P., Richmond, Virginia, for Appellees.

_________________________________________________________________

OPINION

DIANA GRIBBON MOTZ, Circuit Judge:

In this product liability diversity case, after the jury awarded

the

plaintiff substantial damages, the district court granted the

defendant's motion for judgment. Because the district court erred in

concluding that the hazard presented by defendant's product was open

and obvious as a matter of law, and because sufficient evidence

supported the jury verdict, we reverse and remand for further proceedings.

I.

Daniel Freeman purchased a Case International 1130 tractor with

a mower attachment ("1130" or "mower" or "tractor") to care for his

lawn. On May 22, 1992, the second time he used the 1130, Freeman

suffered a serious accident.

While Freeman was mowing his lawn near a rocky slope, the

mower blades glanced against a partially-buried boulder. Freeman

lifted his foot off the speed ratio control pedal, bringing the

tractor to

a stop; he then pushed in the clutch and brake pedals and raised

the

mower attachment, intending to see if the rock had damaged the

blades. Freeman had never used the brakes before because the mower

is designed not to move unless the rider is pressing the speed

ratio

control pedal. Freeman removed his foot from the clutch to allow

the

blades to spin in order to check their alignment, planning then to

back

away from the boulder. Suddenly, the mower lunged forward, toward,

and then over, the rocky embankment. Freeman leapt away from the

machine, rolling forty feet down the hill. He came to rest on his

stomach, safely, but the 1130 tumbled down on top of him, with the

2
mower blades still activated. The blades severely and permanently

injured him.

Freeman initiated this action against Case asserting negligence and

breach of implied warranties. Two asserted defects in the mower

provided the factual basis for both of these theories.

First, Freeman alleged that the brake pedal, which was located

directly above the speed ratio control pedal, was too close to that

pedal so that when a rider released the clutch and attempted to

brake

the mower, he risked pushing both pedals at the same time. Simultaneous engagement caused the 1130 to lurch forward once the clutch

was released because the brakes were unable to override the mower's

forward propulsion.1 Freeman maintained that this defect caused his

accident.

Freeman also claimed that the 1130 was defective because it was

not equipped with an operator presence control device, which would

have discontinued power to the mower blades as soon as Freeman's

weight left the tractor seat. If the mower had been designed with

an

operator presence control device, Freeman contended, the blades

would have been moving much more slowly, if at all, by the time

they

hit him, and would not have injured him so badly.

A jury heard the case for seven days in October and November

1995 and awarded Freeman $3.8 million in compensatory damages.

On a special verdict form the jury expressly found that Case negligently designed the 1130 in a manner that made it unreasonably dangerous, that the negligence proximately caused the accident, that

Freeman was not contributorily negligent, and that he did not

assume

the risk of injury by voluntarily exposing himself to a known

danger.

The jury also found that Case breached its "implied warranty of

merchantability and/or fitness for a particular use," that Freeman did

not

_________________________________________________________________

1 The mower is equipped with split brakes to allow for separate

braking

of the rear wheels. The brakes can be latched together for straight

braking and apparently were so latched at the time of the accident.

Although

there does not appear to be direct evidence on this point, no party

has

suggested to the contrary.

3

unforeseeably misuse the mower, and that the defects that made the

1130 unreasonably dangerous were not open and obvious.

Case moved for judgment as a matter of law and a new trial. On

April 19, 1996, the court granted Case judgment as a matter of law

because it found that the proximity of the pedals and the absence

of

the operator presence control device were open and obvious hazards.

See Freeman v. Case Corp., 924 F. Supp. 1456, 1467-68 (W.D. Va.

1996). The court also concluded that although Freeman had presented

sufficient evidence of an unreasonably dangerous defect in the lack

of an operator presence control device, he failed to present

sufficient

evidence of an unreasonably dangerous defect in the pedal

configuration. Id. at 1462-64. Additionally, the court held that Freeman had

failed to establish a breach of the implied warranty of fitness for

a

particular purpose and entered a conditional order granting a new

trial

on that issue. Id. at 1464. Finally, the court preliminarily

determined

that the $3.8 million jury award was excessive. Id. at 1473-74.

Freeman appeals. Because our jurisdiction is based on diversity of

citizenship -- a suit by a Virginia resident against a Delaware

corporation -- we must apply the law of the state where the accident

occurred, Virginia. In doing so, we review de novo the district

court's

grant of judgment as a matter of law to determine whether the evidence presented at trial, viewed in the light most favorable to

Freeman, would have allowed a reasonable jury to render a verdict in

his

favor. See Andrade v. Mayfair Management, Inc. , 88 F.3d 258, 261

(4th Cir. 1996). We review the district court's conditional grant

of a

motion for new trial for abuse of discretion, see City of Richmond

v.

Madison Management Group, Inc., 918 F.2d 438, 458 (4th Cir. 1990),

recognizing that an error of law constitutes an abuse of

discretion. See

United States v. Koon, 116 S. Ct. 2035, 2047 (1996); Cooter & Gell

v. Hartmarx Corp., 496 U.S. 384, 405 (1990).

II.

The district court held, as a matter of law, that the mower's

asserted defects were open and obvious.2 If that conclusion is

correct,

_________________________________________________________________

2 Case also asserted two other affirmative defenses at trial, which
it

reasserts on appeal: unforeseeable misuse and contributory

negligence.

4
it bars Freeman's recovery under either a contract or tort theory.

This

is so because in Virginia, a plaintiff cannot recover for a breach

of an

implied warranty or negligence if the "purported defect of which

the

plaintiff complains was `known, visible or obvious' to him." Wood

v.

Bass Pro Shops, Inc., 462 S.E.2d 101 (Va. 1995) (citing Brockett v.

Harrell Bros., 143 S.E.2d 897, 902 (Va. 1965)) (applying open and

obvious defense in warranty); Harris-Teeter, Inc. v. Burroughs, 399

S.E.2d 801 (Va. 1991) (applying open and obvious defense in negligence).

"A risk is open and obvious if the person using the product is or

should be aware of the risk." Austin v. Clark Equip. Co., 48 F.3d

833,

836 (4th Cir. 1995) (interpreting Virginia law). Whether a hazard

is

open and obvious is a question of fact, and should be left to the

jury

when "the evidence [is] in conflict." Morgen Indus., Inc. v.

Vaughan,

471 S.E.2d 489, 492-93 (Va. 1996).

In granting judgment to Case, the district court determined that

the

arrangement of the brake and speed ratio control (SRC) pedals was

open and obvious. While this may be true, it is not dispositive of

the

issue. The relevant question under Virginia law is not whether the

defect itself -- here the pedal arrangement -- was obvious, but

whether the hazard -- the risk of inadvertent coengagement causing

the tractor to lurch after release of the clutch-- was open and

obvious.3 _________________________________________________________________

Both the jury and the district court rejected the unforeseeable use

defense

and, contrary to Case's assertion on appeal, that decision was

clearly correct. Information contained in the 1130's promotional literature

and

owner's manual provides solid evidence that Case contemplated Freeman's actions, including lawn mowing on slopes, in designing and

marketing the 1130. As to contributory negligence, although the jury

found

Freeman was not contributorily negligent, the district court

granted Case

judgment as a matter of law on this point. In view of our holding

here,

we need not evaluate the merits of that determination because even

if the
district court were correct, contributory negligence could not bar

Freeman's warranty claim. See Brockett v. Harrell Bros., 143 S.E.2d

897,

902 (Va. 1965) (holding that contributory negligence is not a

defense to

a breach of warranty claim).

3 Because we conclude that the hazard of inadvertent coengagement

of

the two pedals leading to unexpected lurching was not open and

obvious,

we need not reach the question of whether the absence of an

operator

presence control device also presented an open and obvious hazard.

5
For example, in Morgen, 471 S.E.2d at 491, the asserted defect was

an unguarded "nip point." The nip point is simply the point on a

rail

where the rail meets a wheel rolling on it, a design feature

clearly visible to an observer. The plaintiff's expert testified nevertheless

"that

`nip points' are not dangers that are obvious to most people." Id.

(emphasis added). Despite testimony to the contrary, the Virginia

Supreme Court found that "the jury was entitled to accept [the

expert's] testimony that the hazard was not open and obvious."

Morgen, 471 S.E.2d at 492. Thus, Virginia law looks not to whether

the defect itself was obvious, but whether the hazard was clearly

apparent.

Here, the hazard -- that the pedals could easily be inadvertently

coengaged and that coengagement could cause the mower to lurch

because the brakes would not override the SRC -- is far from obvious. Indeed, an operator might well not realize that the mower's

pedals were coengaged unless he looked down at his feet. Unlike the

accelerator pedal in an automobile, the SRC operates on hydrostatic

principles; pressing the SRC does not affect engine speed so the

operator would not perceive a change in engine noise due to faster

engine

rotation were the SRC inadvertently engaged.

Moreover, Case's expert testified that the brakes should overpower

the SRC if an operator simultaneously pushes both pedals. This

testimony alone would prevent a conclusion as a matter of law that the

hazard caused by the brake's failure to override the SRC was "obvious." Case itself said such a hazard did not exist. Finally, the

jury

examined Freeman's mower in detail -- two jurors actually sat in

the

operator's position, observed the pedals from that perspective, and

pushed them -- before the jury concluded that the defect was not

open and obvious.4 _________________________________________________________________

4 Case argues on appeal that a new trial is necessary merely

because

some jurors sat on the tractor. See United States v. Beach, 296

F.2d 153

(4th Cir. 1961). The district court rejected this argument, as do

we. The

jurors' inspection of the tractor merely constituted"a more

critical examination of an exhibit." Id. at 159 (citation omitted). Such an

examination

is permissible. Id.
6
Viewing the evidence in the light most favorable to Freeman, as we

must, the jury could reasonably have determined that the hazard

presented by the pedals' proximity combined with the strength of the

brakes relative to the SRC was not open and obvious. Case was not

entitled to judgment as a matter of law on this basis.

III.

Our conclusion that the district court erred in finding the alleged

hazards "open and obvious" as a matter of law does not

automatically

require reinstatement of the jury verdict. This is so because the

district

court alternatively held that Freeman failed to present sufficient

evidence that the pedal configuration and attendant hazard constituted

an

unreasonably dangerous design defect under Virginia law and so Case

might be entitled to judgment on this ground.5 We believe, however,

that Freeman presented sufficient evidence from which a jury could

conclude that the pedal configuration and associated risk of sudden

forward movement made the 1130 unreasonably dangerous.

To establish this defect, Freeman presented testimony by Smith

Reed, an expert in mechanical engineering, who belonged to a number of engineering societies and had successfully completed the

examinations necessary to become a registered professional

engineer.

Reed had previously testified as an expert in mechanical

engineering

in federal court in the Eastern District of Virginia-- most

recently

_________________________________________________________________

5 The district court also indicated that were this court to find

the open

and obvious affirmative defenses inapplicable, but that the

evidence as

to the hazard presented by the pedal configuration was

insufficient, it

would consider granting a new trial. The court believed that in

that case

a new trial might be warranted because the evidentiary

insufficiency

might have been due to its own decision to exclude all evidence

regarding competing products, which it feared might have been erroneous.

See

Alevromagiros v. Hechinger Co., 993 F.2d 417, 420-21 (4th Cir.

1993)

(finding that "actual industry practices," in the aggregate, could

indicate

consumer expectations, one way to prove unreasonably dangerous
design) (citing Sexton v. Bell Helmets, Inc., 926 F.2d 331, 337

(4th Cir.

1991)). The district court never granted a conditional new trial on

this

issue and, of course, since we hold that Freeman has presented

sufficient

evidence to the jury to sustain its verdict, a new trial to allow

Freeman

to present additional evidence would obviously be unnecessary.

7
just a week before trial. Reed also had spent several years working

for

one of Case's competitors designing mowers and tractors. Case did

not object to Reed's engineering qualifications or expertise in the

field of mechanical engineering. Nor did Case maintain that Reed's

testimony was not relevant. But Case did assert that Reed's

testimony

was legally insufficient.

The district court rejected Case's argument and permitted Reed to

testify before the jury.6 Post-trial, however, the court concluded

that

although it was a "difficult question," Reed's testimony was

insufficient to support the jury's finding. Freeman, 924 F. Supp. at 1463.

In

reaching this conclusion, the court relied heavily on our decision

in

Alevromagiros v. Hechinger, 993 F.2d at 417, 421 (4th Cir. 1993).

There, we refused to credit an expert witness who "testified to no

customs of the trade, referred to no literature in the field, and did

not

identify the reasonable expectations of customers," but merely gave

"his own subjective opinion." Id. Alevromagiros, however, does not

_________________________________________________________________

6 The district court refused to hold Reed's testimony inadmissible

under

Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579 (1993),

reasoning

that Daubert only applied to scientific testimony and not technical

testimony, like Reed's. We need not here decide the question that the

Supreme Court left open, i.e. whether the Daubert analysis applies

outside the scientific context, because Case misunderstands the

Daubert test

in attempting to apply it here. Daubert instructs district courts

to make

a "preliminary assessment of whether the reasoning or methodology"

underlying expert testimony "is scientifically valid." Id. at 590

n.8,

592-93. Essentially, Case does not challenge Reed's"reasoning or

methodology" but his ultimate conclusion, that the 1130 is unreasonably

dangerous. In cases like this one, where an expert relies on his

experience

and training and not a particular methodology to reach his

conclusions,

"application of the Daubert [analysis] is unwarranted." Compton v.

Suburu of America, Inc., 82 F.3d 1513, 1518 (10th Cir.), cert. denied,
117

S. Ct. 611 (1996); see also United States v. Jones, 107 F.3d 1147,

1158

(6th Cir. 1997) (holding Daubert inapplicable to testimony based on

experience or training); United States v. 14.38 Acres of Land, More

or

Less Situated in LeFlore County, 80 F.3d 1074, 1078-79 (5th Cir.

1996)

(same); Iacobelli Constr., Inc. v. County of Monroe, 32 F.3d 19, 25

(2d

Cir. 1994) (same). Thus, we affirm the district court's rejection

of the

Daubert challenge to Reed's testimony, albeit on somewhat different

grounds.

8
compel the conclusion that Reed's testimony was insufficient in

this

case.

Unlike the expert in Alevromagiros, Reed did not simply opine on

the basis of his "own subjective opinion." Rather, he applied his

experience and training in tractor design in reviewing numerous

published

materials, including papers by the Society of Agricultural

Engineers,

extensive industry literature, various tractor specifications, and

trade

journals before reaching his conclusions. Reed also inspected Freeman's 1130 and performed various tests on it, which indicated that

the

tractor did indeed lurch when both the SRC and brake pedals were

pressed and the clutch released.7 In view of the published

authorities,

his inspection of the 1130, and his "sound engineering judgment,"

Reed opined that the 1130's pedal design was unreasonably dangerous. Although Reed could not cite any published source that

analyzed

the 1130's specific configuration and found it defective, Reed

clearly

applied his expertise and knowledge of the published sources and

drew from his detailed inspection of the product itself in

evaluating

the configuration at issue here. Significantly, he identified

specific

published materials that had directly guided his analysis. Virginia

law

is clear that an expert opinion need not find direct support in

published sources; some analogies will have to be drawn. See Ford

Motor

_________________________________________________________________

7 Case protests that Reed's testing of the 1130 was inadmissible

because the testing conditions were not sufficiently similar to

those at the

time of the accident, since the tractor was no longer in its

original condition. However, the district court acted within its discretion in

admitting

this testimony. Such tests are only inadmissible when testing

conditions

are "so dissimilar to the conditions existing at the time of the

accident

`. . . in such fundamental and important respects that the risk of

prejudice

to . . . [the defendant] outweigh[s] the probative value of the

evidence.'"

Chase v. General Motors Corp., 856 F.2d 17, 20 (4th Cir. 1988)
(citing

Gladhill v. General Motors Corp., 743 F.2d 1049, 1052 (4th Cir.

1984)).

Here, a Case employee acknowledged that the only significant change

in

the condition of the tractor after the accident was that its

battery had

died.

In addition, Case inaccurately claims that neither Freeman nor Reed

"made any reference to simultaneous clutch use as a defect in the

tractor." In fact, both Freeman and Reed testified at length regarding

the

relationship between clutch use and the accident. See J.A. 227-29,

264,

346-61, 667-70, 677.

9
Co. v. Bartholomew, 297 S.E.2d 675, 679 (Va. 1982) (finding that

when "safety standards . . . had never been promulgated, . . . it

was a

matter of opinion of trained experts what design was safe for its

intended use").

Case thoroughly cross-examined Reed and at that time highlighted

what it perceived to be deficiencies in his analysis. Case also

introduced the testimony of its own expert, who asserted a contrary

theory.

Case does not challenge the court's instructions to the jury as to

burden of proof or as to how the jury was to assess the expert

testimony.

Thus, the court afforded Case the "appropriate means" for

discrediting

the expert testimony it found suspect. See Daubert, 509 U.S. at 596

("Vigorous cross-examination, presentation of contrary evidence,

and

careful instruction on the burden of proof are the traditional and

appropriate means of attacking shaky but admissible evidence.").

Reed's testimony regarding the pedal arrangement, particularly

when combined with the jury's opportunity to inspect the tractor

itself

and judge the likelihood (or not) of inadvertent coengagement, was

sufficient to sustain the jury's verdict that the pedal design and

associated risk of lurching was unreasonably dangerous.

IV.

The district court believed that a new trial would be required,

even

if it erred in its ruling on the obviousness of the design defect,

because of the imprecise phrasing of the warranty question on the

special verdict form.

The special verdict form asked the jurors to determine whether "the

defendant breached an implied warranty of merchantability and/or

fitness for a particular purpose;" the jurors answered yes. But after

trial

the district court concluded as a matter of law that there had been

no

proof of breach of the warranty of fitness for a particular purpose

because Freeman presented no evidence that he relied on Case in

selecting a product particularly suited for his needs. See

generally

Medcom, Inc. v. C. Arthur Weaver Co., 348 S.E.2d 243, 246 (Va.

1986) (discussing elements of breach of implied warranty of fitness

for a particular purpose). For this reason, the court believed a
retrial

would be necessary to determine whether Case breached the warranty

10
of merchantability because the jury could have answered the special

verdict question in the affirmative without having found a breach

of

that warranty.

In the case at hand, however, it would not have been possible for

the jury to find a breach of the warranty of fitness for a

particular purpose without also finding a breach of the warranty of

merchantability.

When, as here, the buyer's particular purpose is the same as the

intended purpose of the product (lawn mowing), the two warranties

are identical, except that to prove breach of the warranty of

fitness for

a particular purpose, the buyer must additionally prove that he

informed the seller of his purpose and relied on the seller's

judgment

in selecting a product appropriate for that purpose. See Walter

H.E.

Jaeger, Warranties of Merchantability and Fitness for Use: Recent

Developments, 16 Rutgers L. Rev. 493, 506-07 (1962), cited with

approval in Featherall v. Firestone Tire & Rubber Co. , 252 S.E.2d

358, 367 (Va. 1979). These additional elements are the ones Freeman

failed to prove.

Therefore, all of the elements of a breach of the warranty of merchantability would have been established by a jury finding of a

breach

of the warranty of fitness for a particular purpose. The jury could

not

have found a breach of the warranty of fitness for a particular

purpose

without also finding a breach of the warranty of merchantability.

For

this reason, the district court's conditional grant of new trial on

the

breach of warranty issue constituted a clear error of law and,

therefore, an abuse of its discretion. See Koon, 116 S. Ct. at 2035;

Cooter

& Gell, 496 U.S. at 405.

V.

Finally, the district court made a preliminary determination that

the

jury's award of $3.8 million was "excessive." Freeman, 924 F. Supp.

at 1473-74. In view of its grant of judgment to Case, the court did

not

explain its rationale nor did it make a final decision on the

matter.

Accordingly, we have no way of assessing this holding. However, we

are confident that on remand the district court will carefully
consider

this question and will, as it indicated it would if the occasion

presented itself, "further elaborate on its decision that the verdict

is exces11
sive." Id. at 1474. We reverse and remand for further proceedings

consistent with this opinion.

REVERSED AND REMANDED

12