### No. 12851 INTHE SUPREME COURT OF THE STATE OF MONTANA. 

### 1975

DOUGLAS R. 

### McGUIRE, Plaintiff and Appellant,

-vs

# - HOWARD 

### NELSON etal., Defendant and Respondent.

Appeal from: District Court of the Eighteenth JudicialDistrict, 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

## 131975 Filed:

# JuR3.3

## 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 defendantAmerican 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 featurewhich 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 frontwheel suspension systemwould bind the frontwheel and how the oversized tiremight have locked the wheel and caused the accident. The witness was allowed to suppress the suspensionby 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 defectiveproduct, negligently designed it, and negligently failed to warn against the consequencesof misuse. The case was tried to a jury on June 

### 4, 1974. When plaintiff rested his case both defendantsmoved for a directed verdict. Hondalsmotion was granted and judgment entered. The matter was settled between defendantNelson 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 hasbeen a professional engineer since 1944 and been inthe engineering business since 1936; that for 10-12 years he worked asan engineer for an Indian Motorcycle firm and during his association with that company he had an opportunity towork with many different types of motorcycles; that he alsohad extensive operationalexperience. There was no challenge of his credentialsasan expertwitness by defendant Honda Company ordefendant Howard Nelson. During testimony 

### it was established that Prussing had examined themachine involved here and the terrain where the accident occurred. He had examined primarily thedesign features of the front suspension; themethod employed insuspending the front wheel; the clearance built intothe suspension system; and characteristics such as 

### limitsof travel clearance, etc. He explained the working parts and how the tireand wheel functioned with the suspension. He explained tothe jury themeaning 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 tothe larger 

### tire toarrive athis opinion as it concerned the problem athand. Objection was entered and thejury 

### was excused. Prussing explained he had used two furniture clamps todepress the suspension system toavoid any binding effect and the purpose was to establishthe point atwhich the suspension system was fullydepressed and/or let the suspension system go to the 

### limitof its travel. This would permit the engineer to establishclearance between fender and fork within the design limitsof the suspension system. Atthispoint thistestimony was had: "THE COURT: Ask him the sixty-four dollar question. Are the tests similar toriding thisunder the circumstances of thecase, 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-- "THECOURT: 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? "THECOURT: Wait a minute until we get this out. You canvoir 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. Itdid. It establishes the limits of travel. "Q. 

### And did it cause the suspension to do anything other than what itwould 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, 

### Iwill 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? "THEWITNESS: 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 footpounds 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 accidentwould make contact with the fender housing. Then this testimony was had: "MR. BROWN: So, you can't tellby your test whether or not this tireaccurately locked up, seized, orbound. You can merely statethat it rubbed, 

### isthat right? "THE WITNESS: That's right. The degree of contact I could not say atthat 

### timeof the accident what 

### it was. "MR. BROWN: NOW, isn't it true, Mr. Prussing, that the real answer tothat. sixty-four dollar question of whether it would seizeor bind as clamped inthiscase would be what iscalled a dynamic test, that is, a 

### test inthe field, actuallyoperating themachine 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 thisparticular 

### tire on thisparticular suspension would, infact, bind or 

### seize asalleged? "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 thatyou took; is that right? "THE WITNESS: I did not make that test myself. I made measurements, and by calculations, inmy opinion, 

### it would rub and make contact. "MR. BROWN: But, you arenot willing tostate scientificallybeyond that that it would rub ormake contact? "THE WITNESS: Itwould make contact. It would rub. To what extent infootpounds, I am not ina position tosay. "MR. BROWN: You, yourself, did not conduct any dynamic tests or tests inthe 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 allof the facts alleged and setout inthe hypothetical question could be proved or would be a matter of record inthis cause, the Court is still going to sustain the objection. I think that the court, the Supreme Court has indicated tothistrialcourt that the evidence must be related tothose Pitsand to what actually occurred out there. And I think toallow this, togo inon the question of design, now, question of design is a question of discretion. It 

### is a question of discretion among design engineers. That iswhy we have different designs and situations. It is a question of cuttingand covering. It is a question of economics. It is a fight between the engineer and theproduction department. It is a fight between the engineer and the designing engineer astohow much they can afford to spend on design inorder toproduce thisor that. And we get into a multiplicity of problems here. And I am going to sustain the objection. "NOW, do you want touse thiswitness for anything else? "MR. ANDERSON: I would, without going into exactlywhat his examination 

### is, ask him if, based upon such examination of thismachine and the accident scene, he has any opinion as towhether the front suspension design 

### is a safeone." Immediately there were objectionswhich were sustained by the court. The witness was not allowed togive his opinion

as 

### it concerned safedesign. There has been a great deal said about the holding of thisCourt inthe firstcase, McGuire v. Nelson, supra. We excluded there an incourt demonstration because there was no foundation. It was a negligence action against thedealer who sold the tiretoplaintiff's wife. The instant case is one that the court and defense counsel characterizeas strict liability-- defectiveproduct--negligent design--failure towarn. There has been no prohibition declared against static testsor using clamps inconnection therewith, if there is a process used or an expert that can use these processes toestablishcausation and in this

case the design problems. When plaintiff rested his case inchief Honda moved fora directed verdict on two principal grounds: (1) there was no proof of any defective condition in the Honda CT200 which would be unreasonably dangerous tothe user; and (2) no causal connection has been established inthis

casebetween the claimed condition of the oversized, wrong sized tireand the accident. The districtcourt granted the directed verdict. It has long been held by thisCourt that the law does not favor directed verdicts and the evidence therefore

### willbe viewed inthe lightmost favorable to appellants, ashaving proved what it tends toprove. Johnson v. Chicago, M. & St. P. R. Co., 71Mont. 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. InreEstate of Hall v. Milkovich, 158 Mont. 438, 492 P.2d 1388. Honda Company, in support of the directed verdict, argues that neither plaintiff nor hiswife actually 

### sawthe front wheel atthe time of the accident and therefore, they 

### were unable to stateprecisely what happened inrelation to the front tireatthe 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 tenmonths after the accident occurred, observed that the front wheel rubbed when they rode over rocks orjumped on the front fork. As thisCourt stated inBrandenburger v. Toyota Motor Sales, 162 Mont. 506, 517, 513 P.2d 268, circumstantial evidence is sufficient and often 

### timesnecessary ina strict liabilitycase toprove causation. In Brandenburger the Court quoted from Lindsayv. McDonnell Douglas Aircraft Corp., 460 F.2d 631, 639: "'There would be littlegain tothe consuming public if the courts would establisha form of recovery with one hand and take it away with the other by establishing impossible standards of proof. The proof required ina strict liabilitycasemust be realistically tailored to the circumstanceswhich caused the form of action tobe created.'" Incases, such as the instant one, where no one can testify he actually saw the tirebind with the fender, circumstantialevidencemust be allowed or the court would be taking away the right of plaintiff torecover on a. strict liability action. Itwould be unrealistic toexpect theriders of the Honda toactually observe the front tirebind for them toproceed under a strict liabilitytheory of design defect. Here, there was testimony from subsequent riders that the tirecaught when it went over largerocks. There was also testimony of rubmarks inside the front fender and gouge marks on the 

### tire. The Honda engineer testified that the rubmarks could have been leftby the oversized 

### tire. Allthat testimony, combined with Prussinglstestimony astowhether or not he considered the design tobe dangerous, had it been allowed intotestimony, would have been sufficient evidence toallow the case togo to thejury, although it is allcircumstantial evidence. In fact, his Prussing inhis testimony, indicated that/testimony could lend support tocausation as well asdesign defect. Viewing the causation inthe lightmost favorable toplaintiff, aswe must, reasonable and fairminded men could reach different conclusions. Wehave an impasse on the testimony of the engineer as tothedesign defect, etc. The defense maintains it invades the province of the jury and the court held it tobe improper evidence, inany case. Of course, there

### was a great deal of discussion about the admissibility of expert testimony. InFrumer 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: "Themodern 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 involvingmatters of a scientific, mechanical, professional, or of like nature, requiring special study,experience or observation, or where the connectionbetween the cause and effect was a matter of specialized knowledge, not within the knowledge of laymen in general, expert opinion testimonywas 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 reasonwhy the opinion should not be received." Product liability is a relatively new branch of the law, and the role of the expertwitness 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'sproduct, in a strict liability case: "'Thenature 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.'" (Emphasisadded.) The fact that Prussing'squalifications 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 frompersonal 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 conclusionwhich 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. InVII Wigmore on Evidence, 3d ed. 51920, ProfessorWigmore 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) consistsmerely 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 "whetheror not any such inferenceembraces an ultimate issue tobe decided by the trier of fact

## * * *I1. This Court has repeatedly held that expert opinion evidence 

### is admissible inexplaining the cause of a particular accident. Pachek v. Norton Concrete Co., 160Mont. 16, 21, 499 P.2d 766. The opinion of a witness on a material question of science, art, or trade inwhich he 

### is skilled 

### is admissible inevidence. Section 93-401-27, R.C.M. 1947. There area multitude of cases allowing expert testimony on the ultimate question before the jury. See annotation: 62 ALR2d 1426. The true test would 

### seem tobe whether the subject is sufficiently complex so astobe susceptibletoopinion evidence, and whether thewitness 

### isproperly qualified togive his opinion. Here, there 

### isno doubt that the relationshipof the suspension system of the frontwheel of a CT200 90 C.C. Honda trail bike to itstire sizewould not be common knowledge tomembers of thejury, but a question of mechanical engineering. Also, there is no doubt thatPrussing iswell qualified totestify on thematter. In view of the fact that thejury can eitherreject or accept the expert witness' opinion or give limited weight toit, we failto 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