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, Vir-
ginia, 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
defen-
dant's motion for judgment. Because the district court erred in
con-
cluding that the hazard presented by defendant's product was open
and obvious as a matter of law, and because sufficient evidence
sup-
ported the jury verdict, we reverse and remand for further proceed-
ings.

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
stom-
ach, 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
pro-
vided 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. Simulta-
neous 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 negli-
gently designed the 1130 in a manner that made it unreasonably dan-
gerous, 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
mer-
chantability 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
brak-
ing 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
configura-
tion. 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
corpo-
ration -- 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 evi-
dence presented at trial, viewed in the light most favorable to
Free-
man, 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 negli-
gence).

"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 cor-
rect. Information contained in the 1130's promotional literature
and
owner's manual provides solid evidence that Case contemplated Free-
man's actions, including lawn mowing on slopes, in designing and
mar-
keting 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
Free-
man'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 vis-
ible 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 obvi-
ous. Indeed, an operator might well not realize that the mower's
ped-
als 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
oper-
ator 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
testi-
mony alone would prevent a conclusion as a matter of law that the
hazard caused by the brake's failure to override the SRC was "obvi-
ous." 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 exam-
ination 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
pres-
ented 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
evi-
dence 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 num-
ber 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
regard-
ing 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
insuffi-
cient 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
cus-
toms 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
testi-
mony, like Reed's. We need not here decide the question that the
Supreme Court left open, i.e. whether the Daubert analysis applies
out-
side 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
meth-
odology" but his ultimate conclusion, that the 1130 is unreasonably
dan-
gerous. 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.
Sub-
uru 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
expe-
rience 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 Free-
man'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 danger-
ous. 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
pub-
lished 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 condi-
tion. 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
trac-
tor." 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
intro-
duced the testimony of its own expert, who asserted a contrary
theory.
Case does not challenge the court's instructions to the jury as to
bur-
den 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
associ-
ated 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
fit-
ness 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 pur-
pose 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 mer-
chantability 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,
there-
fore, 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
pres-
ented itself, "further elaborate on its decision that the verdict
is exces-

                                11
sive." Id. at 1474. We reverse and remand for further proceedings
consistent with this opinion.

REVERSED AND REMANDED
                               12
