No. 12851 

IN THE SUPREME COURT OF THE STATE OF MONTANA. 

1975 

DOUGLAS R. McGUIRE, 

Plaintiff and Appellant, 

-vs - 

HOWARD NELSON et al., 

Defendant and Respondent. 

Appeal from: District Court of the Eighteenth Judicial District, 

Honorable W. W. Lessley, Judge presiding. 

Counsel of Recording : 

For Appellant : 

Berger, Anderson, Sinclair and Murphy, Billings, Montana 

Richard Anderson argued, Billings, Montana 

For Respondent: 

Bennett and Bennett, Bozeman, Montana 

Anderson, Symmes, Forbes, Peete & Brown, Billings, 

Montana 

Rockwood Brown argued, Billings, Montana 

Submitted: March 5, 1975 

Decided : JUM 13 1975 

Filed : JuR 3.3 7975 
Mr. Justice Gene B. Daly delivered the Opinion of the Court. 

Plaintiff Douglas R. MeGuire appeals from a judgment 

entered in the district court, Gallatin County, when, after presentation of plaintiff's case in chief, the court granted a 

motion for a directed verdict in favor of defendant American 

Honda Company. 

The action was brought by plaintiff to recover damages 

suffered as a result of a motorcycle accident involving a motorcycle owned by plaintiff and manufactured by defendant. 

Plaintiff, while riding the motorcycle with his wife behind him, began a descent down an incline in an area near Bozeman, 

Montana used by motorcyclists and known as the "Pits", when his 

front wheel locked resulting in his being thrown over the handlebars onto the ground. He received a broken pelvis; his wife was 

not injured. 

Plaintiff originally brought a negligence action against 

the local Honda dealer, Howard Nelson, d/b/a Harmony House, alleging the dealer negligently sold plaintiff's wife the wrong size 

tire for the Honda. The particular model owned by plaintiff was 

a CT200 90 C.C. trail bike and had the unique design feature which 

required a 2.50 x 17 tire in the front and a 2.75 x 17 tire in the 

rear. Nelson sold plaintiff's wife a 2.75 x 17 tire which was 

mounted on the front wheel. While going down the hill plaintiff 

alleges the tire was forced up against the fender of the Honda 

causing the Honda to stop, throwing both plaintiff and his wife 

from the Honda, resulting in the injuries to plaintiff. 

The jury in that action found for plaintiff and awarded 

him $45,000. Nelson appealed that verdict to this Court challenging the in court demonstration by plaintiff's expert witness. The 

witness was allowed to perform a demonstration in the presence of 

the jury which was designed to demonstrate that force applied to 
the front wheel suspension system would bind the front wheel 

and how the oversized tire might have locked the wheel and 

caused the accident. The witness was allowed to suppress the 

suspension by the use of a furniture clamp on one side of the 

wheel. 

On appeal, this Court in McGuire v. Nelson, 162 Mont. 37, 

508 P.2d 558, held there was no foundation to show that the force 

used in the demonstration was similar to the conditions and the 

force applied to the front suspension by two persons on the bike 

at the time of the accident. The cause was returned to the district court for a new trial. 

Plaintiff then filed an amended complaint naming American 

Honda Company as an additional defendant. The complaint against 

Honda is a strict liability case alleging that Honda marketed a 

dangerously defective product, negligently designed it, and negligently failed to warn against the consequences of misuse. 

The case was tried to a jury on June 4, 1974. When plaintiff rested his case both defendants moved for a directed verdict. 

Hondals motion was granted and judgment entered. The matter was 

settled between defendant Nelson and plaintiff on a covenant not 

to sue, for the amount of $3,750. 

Several issues are presented for review on appeal. The 

dispositive issue concerns the exclusion of the testimony of 

plaintiff's expert witness, Roy Prussing, as to his opinion concerning the design of the suspension system and its relation to 

the fender and tire and ultimately the safety of this design and/ 

or its defects; also the matter of proof of causation of the 

accident. 

Witness Prussing was duly qualified as an expert witness. 

His testimony shows that he was a graduate of Utilities Engineering Institute of Chicago and was a registered professional engineer in the states of Montana, Wyoming and Minnesota; that he has 
been a professional engineer since 1944 and been in the engineering business since 1936; that for 10-12 years he worked as an 

engineer for an Indian Motorcycle firm and during his association 

with that company he had an opportunity to work with many different types of motorcycles; that he also had extensive operational experience. There was no challenge of his credentials as an 

expert witness by defendant Honda Company or defendant Howard 

Nelson. 

During testimony it was established that Prussing had 

examined the machine involved here and the terrain where the accident occurred. He had examined primarily the design features of 

the front suspension; the method employed in suspending the front 

wheel; the clearance built into the suspension system; and characteristics such as limits of travel clearance, etc. He explained 

the working parts and how the tire and wheel functioned with the 

suspension. He explained to the jury the meaning of the two tire 

sizes involved in the case. It seems that the engineer experimented with thc correct tire for the front wheel and interpolated 

clearance figures to the larger tire to arrive at his opinion as 

it concerned the problem at hand. 

Objection was entered and the jury was excused. Prussing 

explained he had used two furniture clamps to depress the suspension system to avoid any binding effect and the purpose was to 

establish the point at which the suspension system was fully depressed and/or let the suspension system go to the limit of its 

travel. This would permit the engineer to establish clearance 

between fender and fork within the design limits of the suspension system. At this point this testimony was had: 

"THE COURT: Ask him the sixty-four dollar question. Are the tests similar to riding this under 

the circumstances of the case, under McGuirels 

testimony? We really haven't got that in, but we 

know what his testimony was, that lie was riding 
it out on the pits and suddenly it froze. 

"Q. Did the use of the furniture clamps on 

tne machine in question, Mr. Prussing, duplicate 

the up and down action of the suspension? 

"MR. LYMAN H. BENNETT, JR.: Objected to as 

calling for a conclusion of this witness without any foundation laid at all in the light of 

the fact that the witness can't-- 

"THE COURT: I don't know that it is or not. 

Overruled, at this time. 

"MR. LYMAN H. BENNETT, JR.: May we ask him a 

question on voir dire? 

"THE COURT: Wait a minute until we get this out. 

You can voir dire. You can cross him, as a matter 

of fact. 

"Q. Did the use of the furniture clamps, Mr. 

Prussing, in your opinion, merely duplicate the 

up and down action of the flection as it depresses 

over bumps in the terrain over which the bicycle 

was ridden? A. It did. It establishes the limits 

of travel. 

"Q. And did it cause the suspension to do anything 

other than what it would do in normal use on the 

trail? A. It did not. We merely held it there 

so I could take measurements. 

"Q. And then you released them? A. Then I released them. 

"2. A11 right. " 

Under cross-examination, he testified: 

"MR. BROWN: Now, Mr. Prussing, I will hold you to 

your scientific standing. Can you state with any 

scientific accuracy that the pressure applied with 

the clamp was the same that you would experience 

in the field, with any reasonable scientific certainty? 

"THE WITNESS: The clamps applied pressure to that 

suspension system to the point where it bottomed 

out or reached the end of its travel. This same 

thing would happen in the field under field conditions. " 

There followed a great deal of testimony designed to diminish the accuracy of the engineer's tests. He freely admitted 

he did not measure pressure in foot pounds but seemed to indicate 

he could establish from the evidence at hand and his experiments, 

that the wheel under field conditions of the day of the accident 
would make contact with the fender housing. Then this testimony was had: 

"MR. BROWN: So, you can't tell by your test 

whether or not this tire accurately locked up, 

seized, or bound. You can merely state that it 

rubbed, is that right? 

"THE WITNESS: That's right. The degree of contact I could not say at that time of the accident 

what it was. 

"MR. BROWN: NOW, isn't it true, Mr. Prussing, 

that the real answer to that. sixty-four dollar 

question of whether it would seize or bind as 

clamped in this case would be what is called a 

dynamic test, that is, a test in the field, 

actually operating the machine under similar 

conditions? 

"THE WITNESS: That would be a dynamic test; right. 

"MR. BROWN: Well, my question is: Is it not 

true that a dynamic test would be the only way 

which you could determine whether this particular 

tire on this particular suspension would, in fact, 

bind or seize as alleged? 

"THE WITNESS: I don't think so. I think that 

could be determined statistically, also. 

"MR. BROWN: Well, you previously testified that 

you don't know from your test whether it did, and 

could not tell from the test that you took; is 

that right? 

"THE WITNESS: I did not make that test myself. I 

made measurements, and by calculations, in my opinion, it would rub and make contact. 

"MR. BROWN: But, you are not willing to state 

scientifically beyond that that it would rub or make 

contact? 

"THE WITNESS: It would make contact. It would rub. 

To what extent in foot pounds, I am not in a position to say. 

"MR. BROWN: You, yourself, did not conduct any 

dynamic tests or tests in the field? 

"THE WITNESS: I did not." 

Plaintiff then proposed a hypothetical question that included design, defect and causation, based on reasonable certainty 

as established by mechanical design standards and knowledge. After 

objections by both defense counsel, the court ruled. 
' 0: Taking the hypothetical question by 

its four corners, and assuming for the purpose 

3f my ruling that all of the facts alleged and 

set out in the hypothetical question could be 

proved or would be a matter of record in this 

cause, the Court is still going to sustain the 

objection. I think that the court, the Supreme 

Court has indicated to this trial court that the 

evidence must be related to those Pits and to 

what actually occurred out there. And I think 

to allow this, to go in on the question of design, 

now, question of design is a question of discretion. It is a question of discretion among 

design engineers. That is why we have different 

designs and situations. It is a question of 

cutting and covering. It is a question of economics. It is a fight between the engineer and 

the production department. It is a fight between 

the engineer and the designing engineer as to how 

much they can afford to spend on design in order 

to produce this or that. And we get into a multiplicity of problems here. And I am going to sustain the objection. 

"NOW, do you want to use this witness for anything else? 

"MR. ANDERSON: I would, without going into exactly what his examination is, ask him if, based 

upon such examination of this machine and the 

accident scene, he has any opinion as to whether 

the front suspension design is a safe one." 

Immediately there were objections which were sustained 

by the court. The witness was not allowed to give his opinion 

as it concerned safe design. 

There has been a great deal said about the holding of 

this Court in the first case, McGuire v. Nelson, supra. We excluded there an in court demonstration because there was no 

foundation. It was a negligence action against the dealer who 

sold the tire to plaintiff's wife. The instant case is one that 

the court and defense counsel characterize as strict liability-- 

defective product--negligent design--failure to warn. There has 

been no prohibition declared against static tests or using clamps 

in connection therewith, if there is a process used or an expert 

that can use these processes to establish causation and in this 

case the design problems. 

When plaintiff rested his case in chief Honda moved for 
a directed verdict on two principal grounds: 

(1) there was no proof of any defective condition in 

the Honda CT200 which would be unreasonably dangerous to the 

user; and 

(2) no causal connection has been established in this 

case between the claimed condition of the oversized, wrong 

sized tire and the accident. The district court granted the 

directed verdict. 

It has long been held by this Court that the law does 

not favor directed verdicts and the evidence therefore will be 

viewed in the light most favorable to appellants, as having 

proved what it tends to prove. Johnson v. Chicago, M. & St. P. 

R. Co., 71 Mont. 390, 394, 230 P. 52. This Court has also long 

held that cases should not be withdrawn from a jury unless reasonable and fair-minded men could reach only one conclusion from the 

facts. In re Estate of Hall v. Milkovich, 158 Mont. 438, 492 

P.2d 1388. 

Honda Company, in support of the directed verdict, argues 

that neither plaintiff nor his wife actually saw the front wheel 

at the time of the accident and therefore, they were unable to 

state precisely what happened in relation to the front tire at the 

time. The only other evidence plaintiff could offer aside from 

the testimony of Prussing regarding his test and the safety of 

the design, was the testimony of plaintiff, his wife and his 

cousin, George Barclay, who after an outing ten months after the 

accident occurred, observed that the front wheel rubbed when they 

rode over rocks or jumped on the front fork. 

As this Court stated in Brandenburger v. Toyota Motor 

Sales, 162 Mont. 506, 517, 513 P.2d 268, circumstantial evidence 

is sufficient and often times necessary in a strict liability case 

to prove causation. In Brandenburger the Court quoted from Lindsay 
v. McDonnell Douglas Aircraft Corp., 460 F.2d 631, 639: 

"'There would be little gain to the consuming 

public if the courts would establish a form of 

recovery with one hand and take it away with 

the other by establishing impossible standards 

of proof. The proof required in a strict liability case must be realistically tailored to 

the circumstances which caused the form of 

action to be created.'" 

In cases, such as the instant one, where no one can 

testify he actually saw the tire bind with the fender, circumstantial evidence must be allowed or the court would be taking 

away the right of plaintiff to recover on a. strict liability 

action. It would be unrealistic to expect the riders of the 

Honda to actually observe the front tire bind for them to proceed 

under a strict liability theory of design defect. 

Here, there was testimony from subsequent riders that 

the tire caught when it went over large rocks. There was also 

testimony of rub marks inside the front fender and gouge marks on 

the tire. The Honda engineer testified that the rub marks could 

have been left by the oversized tire. All that testimony, combined with Prussingls testimony as to whether or not he considered 

the design to be dangerous, had it been allowed into testimony, 

would have been sufficient evidence to allow the case to go to 

the jury, although it is all circumstantial evidence. In fact, 

his 

Prussing in his testimony, indicated that/testimony could lend 

support to causation as well as design defect. Viewing the causation in the light most favorable to plaintiff, as we must, reasonable and fair minded men could reach different conclusions. 

We have an impasse on the testimony of the engineer as 

to the design defect, etc. The defense maintains it invades the 

province of the jury and the court held it to be improper evidence, 

in any case. 

Of course, there was a great deal of discussion about the 

admissibility of expert testimony. In Frumer and Friedman, Products 
Liability, V.1, $12.02[2] [a], p. 246, quoting from Grismore v. 

Consolidated Products Co., 232 Iowa 328, 5 N.W.2d 646, 655, it 

is stated: 

"The modern tendency of the courts everywhere 

is to take a more liberal and rational view 

respecting the admissibility and scope of such 

testimony. This court early announced that in 

all proceedings involving matters of a scientific, 

mechanical, professional, or of like nature, requiring special study, experience or observation, 

or where the connection between the cause and 

effect was a matter of specialized knowledge, 

not within the knowledge of laymen in general, 

expert opinion testimony was admissible to aid the 

court or the jury in arriving at a correct determination of the litigated issue. There are many 

matters of scientific investigation and specialized 

knowledge in the fields of the professions, trades, 

business, industry, art, and other endeavors where 

the minds of those not learned therein necessarily 

grope but blindly. Expert opinion in such cases 

is indispensable to aid the jurors in reaching a 

correct conclusion, and the fact that the matter 

inquired about is a vital and controlling fact 

in the trial, or is even the ultimate fact, which 

the jury are to pass upon and determine, is no 

reason why the opinion should not be received." 

Product liability is a relatively new branch of the law, 

and the role of the expert witness in this field has become more 

important. This Court stated in Brandenburger, quoting the Hawaii 

Supreme Court in Stewart v. Budget Rent-A-Car, 52 Haw. 71, 470 

P.2d 240, 243, as to the acceptable type of evidence to be used 

by a plaintiff to prove a defect in a manufacturer's or distributor's product, in a strict liability case: 

"'The nature and quality of evidence used in 

products liability cases to show the defect and 

the nexus between the defect and the accident 

naturally varies. The most convincing evidence 

is an expert's pinpointing the defect and qiving 

his opinion on the precise cause of the accident 

after a thorouqh inspection.'" (Emphasis added.) 

The fact that Prussing's qualifications as an expert 

was n3ver questioned and his experience in the field as a mechanical engineer; considering his experience working with motorcycles; and considering that Prussing inspected the particular 

Honda model involved in the accident and was familiar with the 
design both from personal observation and from studying schematics 

of the suspension system supplied by the Honda Company, it is 

apparent that Prussing was well qualified to give his opinion as 

to the alleged defect in the design of the Honda model in question and whether it could or did cause the accident, as alleged. 

We can find no difference between that testimony and the testimony this Court allowed in Brandenburger where an expert witness 

was allowed to testify as to the defect in the design of the roof 

of the Toyota Land Cruiser. 

Counsel for Honda argues that such testimony invades the 

province of the jury. Admittedly Prussing's testimony would involve the ultimate conclusion which the jury was required to 

determine. This, however, does not of itself furnish a basis for 

its rejection. Although there are authorities which indicate 

that the appropriate test should be whether the opinion invades 

the province of the jury, it would seem that the better reasoned 

cases reject this as the test. 

In VII Wigmore on Evidence, 3d ed. 51920, Professor Wigmore in his criticism of the rule states: 

" * * * because the witness, in expressing his opinion, 

is not attempting to 'usurp' the jury's function; 

nor could if he desired. He is not attempting it, 

because his error (if it were one) consists merely 

in offering to the jury a piece of testimony which 

ought not to go there; and he could not usurp it 

if he would, because the jury may still reject his 

opinion and accept some other view, and no legal 

power, not even the judge's order, can compel 

them to accept the witness' opinion against their 

own. * * *" 

Wigmore's views have been widely adopted in the United 

States. Bridges v. Lintz, 140 Col. 582, 346 P.2d 571; Grismore 

v. Consolidated Products Co., supra; Schweiger v. Solbeck, 191 Ore. 

454, 230 P.2d 195, 29 ALR2d 435. Rule 409 of the American Law 

Institute's Model Code of Evidence, p. 210, expressly states that 

a witness may draw an inference "whether or not any such inference 
embraces an ultimate issue to be decided by the trier of 

fact * * *I1. 

This Court has repeatedly held that expert opinion evidence is admissible in explaining the cause of a particular accident. Pachek v. Norton Concrete Co., 160 Mont. 16, 21, 499 P.2d 

766. The opinion of a witness on a material question of science, 

art, or trade in which he is skilled is admissible in evidence. 

Section 93-401-27, R.C.M. 1947. There are a multitude of cases 

allowing expert testimony on the ultimate question before the 

jury. See annotation: 62 ALR2d 1426. 

The true test would seem to be whether the subject is 

sufficiently complex so as to be susceptible to opinion evidence, 

and whether the witness is properly qualified to give his opinion. 

Here, there is no doubt that the relationship of the suspension 

system of the front wheel of a CT200 90 C.C. Honda trail bike to 

its tire size would not be common knowledge to members of the jury, 

but a question of mechanical engineering. Also, there is no doubt 

that Prussing is well qualified to testify on the matter. In view 

of the fact that the jury can either reject or accept the expert 

witness' opinion or give limited weight to it, we fail to see how 

the admission of the evidence here could constitute a usurpation 

of the jury's function. 

The judgment of the dist reversed and the 

cause remanded for a new trial. 

- 

Justice 

We concur: , 

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Chief Justice