A second-hand carbon fiber archery arrow made by Manufacturer broke and impaled the webbing of Plaintiff’s hand after he drew and released the arrow from his bow. He sued for strict and negligent product liability, breach of warranty, and a violation of Kentucky’s Consumer Protection Act. He contended Manufacturer provided an inadequate warning of the danger. Plaintiff had seen a warning on the arrow itself, which referred to a website with more extensive warnings.
Plaintiff purchased the arrow in question second-hand, and since he didn’t receive the arrow in its original packaging, the only warning message he had was on the arrow’s shaft. Despite being aware of the on-arrow message, Plaintiff never followed the URL or called the phone number, so he never read or heard this warning.
In support of his failure-to-warn claims, Plaintiff offered four opinions from his human-factors expert. Pursuant to Manufacturer’s Rule 702 and Daubert challenge, the district court rejected each of the expert’s opinions as inadmissible. The court found the first two opinions irrelevant to the failure-to-warn claims; the expert wasn’t qualified to give the third; and the fourth was unreliable. With no expert testimony to support the failure-to-warn theory, the district court granted Manufacturer summary judgment on the remaining strict and negligent products liability claims. Plaintiff appealed the district court’s decision to exclude the expert’s testimony and to grant summary judgment.
Circuit Judge John M. Rogers wrote in his opinion for the panel that the district court didn’t abuse its discretion by excluding the expert opinions. After finding that Plaintiff “saw and read” the on-arrow message, the district court reasonably concluded that the first expert opinion—stating that the on-arrow message was “entirely inconspicuous”—was irrelevant to Plaintiff’s claims. Given that the current on-arrow message was enough to attract Plaintiff’s attention, a bolder statement would not have made a difference, the Court reasoned.
The Sixth Circuit also held that the district court was also reasonable in deciding that the second expert opinion—concluding that Manufacturer’s website instructions were inadequate—was irrelevant. The failure-to-warn claims begin and end with the on-arrow message. If Plaintiff proved that the on-arrow message was inadequate, and that inadequacy caused his failure to visit the website or call the number, his claim would succeed. The analysis had nothing to do with the website’s warning, the Court held.
Further, the district court reasonably concluded that the human-factors expert wasn’t qualified to give her third expert opinion—that Manufacturer should’ve taken other steps to make its carbon arrows safe. The expert described her role as a human-factors expert as follows: “I look at product designs and talk to [clients] about hazards that the product presents and the best way of dealing with that. So, whether that’s through an engineering design fix which I would then pass off to an engineer, the warnings, the instructions; I talk about warning effectiveness, consumer perception of warnings.” While the Sixth Circuit acknowledged that the expert may be qualified to testify about how the arrow’s warning interacts with the product’s overall safety, most of her third opinion focused on Manufacturer’s failure to pursue engineering modifications. The expert admitted she wasn’t qualified to give any opinion on the feasibility of such design alternatives. In addition, the expert never investigated, outside of deposition testimony, Manufacturer’s efforts to make its carbon arrows safe. It would be misleading, Judge Rogers explained, to place so much weight on potential design alternatives when there wasn’t any evidence that feasible alternatives exist and minimal evidence that Manufacturer hadn’t pursued this.
Finally, the district court reasonably concluded that the human-factors expert’s fourth opinion—stating that the on-arrow message “fails to adequately alert users to the hazard and draw them to the website” was inadmissible. To comment on a warning’s effectiveness, an expert must put the warning in context with a thorough understanding of the underlying risk, the Court held. The problem with the expert’s fourth opinion, Judge Rogers explained, was that she tried to comment on the adequacy of the on-arrow message, and went on state what changes should be made to the message—with no qualifications or background knowledge to comment on the nature of the risk carbon fiber arrows pose. She wasn’t an engineering expert, and she never claimed to have any technical knowledge about carbon fiber arrows or the material itself. The expert’s only attempt to learn about the hazard involved informal interviews with archery retailers over the phone and employees at a sporting goods store.
The expert’s opinions about certain warning characteristics being more effective than others—like pictograms bolder than text—may be reliable in the Daubert sense, because she used peer-reviewed literature to support them, the Court commented. However, she didn’t have a reliable basis for connecting the form of the on-arrow message with its adequacy to convey to a reasonable user an understanding of the underlying risk. As a result, the expert’s fourth opinion wouldn’t assist a jury in understanding the on-arrow message’s adequacy. The district court didn’t abuse its discretion by excluding that opinion.
The judgment of the district court was affirmed.