                 IN THE SUPREME COURT OF MISSISSIPPI

                           NO. 2001-CT-00875-SCT

RANDAL R. PALMER AND LYNN I. PALMER
INDIVIDUALLY AND ON BEHALF OF ANNE
PALMER, A MINOR

v.

VOLKSWAGEN OF AMERICA, INC., VAN-TROW
VOLKSWAGEN, INC., VOLKSWAGEN A.G. a/k/a
VOLKSWAGENWERK AKTIENGESELLSCHAFT
AND VOLKSWAGEN DE MEXICO, S. A. DE C. V.
a/k/a VOLKSWAGEN OF MEXICO

                       ON WRIT OF CERTIORARI

DATE OF JUDGMENT:                  03/28/2001
TRIAL JUDGE:                       HON. W. SWAN YERGER
COURT FROM WHICH APPEALED:         HINDS COUNTY CIRCUIT COURT
ATTORNEYS FOR APPELLANTS:          MICHAEL JAMES MALOUF
                                   MICHAEL J. MALOUF, JR.
ATTORNEYS FOR APPELLEES:           J. COLLINS WOHNER, JR.
                                   ROBERT H. PEDERSEN
                                   DAVID L. AYERS
NATURE OF THE CASE:                CIVIL - WRONGFUL DEATH
DISPOSITION:                       THE JUDGMENT OF THE COURT OF
                                   APPEALS IS AFFIRMED IN PART AND
                                   REVERSED IN PART AND THE JUDGMENT
                                   OF THE CIRCUIT COURT OF HINDS
                                   COUNTY IS AFFIRMED IN PART AND
                                   REVERSED AND REMANDED IN PART -
                                   01/13/2005
MOTION FOR REHEARING FILED:
MANDATE ISSUED:

     EN BANC.

     DICKINSON, JUSTICE, FOR THE COURT:
¶1.     Sixteen-year-old Anne Palmer left school in Madison, driving a 1995 Volkswagen Jetta

that her parents allowed her to use. She picked up her ten-year-old sister, Jennifer, and went

home.       There, she called her mother and secured permission to drive the Jetta to a nearby

convenience store to buy a Coke.

¶2.     After leaving the store, Anne traveled along U.S. Highway 51 in heavy, "stop and go"

rush hour traffic, behind an unmarked Ford Crown Victoria driven by Madison City Police

Officer Thomas Mikula. Jennifer was seated in the front passenger seat, and neither Anne nor

Jennifer wore a seat belt. A minivan in front of the Crown Victoria stopped suddenly, and the

Crown Victoria braked to avoid hitting the minivan. Anne applied her brakes, but the Jetta

struck the rear end of the Crown Victoria, which then hit the minivan. The Jetta's driver-side

and passenger-side air bags deployed, causing only minor injuries to Anne, but inflicting severe

injuries to Jennifer, eventually resulting in her death.

¶3.     Jennifer's family filed suit against Volkswagen of America, Van-Trow Volkswagen, Inc.,

Volkswagenwerk Aktiengesellschaft, and Volkswagen de Mexico, alleging claims for

negligence, breach of express and implied warranties, and violation of the Mississippi Product

Liability Act, Miss. Code Ann. § 11-1-63 (Rev. 2002).1

¶4.     During the course of the trial, the court made several evidentiary rulings, over plaintiffs’

objection, which are at issue in this appeal:2




        1
         This included a claim for defective design, defective manufacture and inadequate warning.
        2
         We will not address the assignments of error rejected by the Court of Appeals, as none were
the subject of a petition for writ of certiorari.

                                                           2
         1.      The trial court erred in excluding a picture and caption from the owner’s
                 manual.

         2.      The trial court erred in excluding the National Transportation Safety
                 Board’s safety recommendations of November 2, 1995.

         3.      The trial court erred in allowing videos of litigation testing.

         4.      The trial court erred in refusing to allow certain expert testimony from
                 Dr. Michael Wogalter and Myra Kruckenburg.

         5.      The trial court erred in refusing to exclude certain expert testimony from
                 Greg Miller.

         6.      The trial court erred in allowing evidence of seat belt use by Anne
                 Palmer and the Palmer family.

         7.      The trial court erred in excluding SCI reports and evidence of properly
                 belted occupants injured by air bags.


¶5.      The trial court directed a verdict for defendants on the plaintiffs’ claims of negligence,

breach of warranty, and defective manufacture, and submitted the case to the jury on the issues

of defective design and inadequate warnings. After deliberation, the jury returned a verdict for

the defendants on both claims, with a unanimous defense verdict on defective design, and a vote

of eleven to one, in favor of the defendants on the claim of inadequate warnings.

¶6.      The Palmers’ appeal was assigned to the Court of Appeals, which affirmed the directed

verdicts3 granted to the defendants, and affirmed some of the trial court’s evidentiary rulings,

but reversed others and remanded the case for a new trial. Palmer v. Volkswagen of Am., Inc.,

2003 WL 22006296 (Miss. Ct. App. 2003).




         3
          The Court of Appeals affirmed both directed verdicts, neither of which are at issue before this
Court.

                                                       3
                                                   ANALYSIS

¶7.     The precise question before us is whether one or more of the trial court’s evidentiary

rulings raised by plaintiffs on appeal were erroneous, requiring reversal of the jury verdict for

the defendants on one or both issues submitted to the jury. This requires that we now examine

each of those evidentiary rulings under the appropriate standard of review.

        The picture and caption from the owner’s manual.

¶8.     The trial court allowed the defendants to remove a picture found on one page of the

Owner’s Manual for the Jetta, which depicted a small child in a child seat, facing backward, in

the front passenger seat, and a caption under the picture.




                        Your child may travel on the front passenger’s seat only if you
                        have a child restraint system which is specifically designed and
                        approved by the chi specifically designed and approved by the
                        child restraint system manufacturer for use in the front together
                        with the restraint system installed at that position.




¶9.     Plaintiffs claim the picture was probative and admissible with respect to the inadequate

warnings claim submitted to the jury.            We must address whether the picture was admissible

and, if so, whether the jury verdict might have been different, had it been allowed into evidence.

The Court of Appeals addressed the issue as follows:


                                                           4
                The picture depicted a small child in a rearward facing child seat on the
        front passenger seat. The caption stated, “Your child may travel on the front
        passenger’s seat only if you have a child restraint system which is specifically
        designed and approved by the child restraint system manufacturer for use in the
        front together with the restraint system installed at that position.” The picture
        and caption directly contradicted information located in the “Supplemental Air
        Bag System” section of the manual, that stated, “WARNING Never install
        rearward facing child seats or infant carriers on the front passenger seat,” that
        doing so can cause serious injury to the child from the inflating air bag, and to
        always install rearward facing child seats in the rear seat.

                 The trial court granted Volkswagen’s motion in limine and excluded the
        picture and caption. The [trial] court held that the picture of a small child in a
        rear-facing child seat placed in the front passenger seat was not relevant.
        Alternatively, the [trial]court held that the picture’s probative value was
        substantially outweighed by the danger of unfair prejudice, confusion of the
        issues, or misleading the jury.

Palmer, 2003 WL 22006296, at *2 (footnote omitted).

¶10.    The Court of Appeals then analyzed the trial court’s two bases (relevance and prejudice)

for exclusion of the picture, recognizing the trial court’s reasoning that “material depicting a

small child in a rearward facing passenger [child’s] seat was not similar enough to the instant

case [involving a ten-year old child sitting forward on the Jetta’s seat] to be relevant,” but

nevertheless finding these dissimilarities were “insufficient to erode the logical probative

value of [the picture and caption].”

¶11.    The Court of Appeals then provided a lengthy discussion of what might have happened,

had the plaintiffs read the Owner’s Manual.    It then addressed its view of the importance (or

lack thereof) of the fact that the plaintiffs never read the Owner’s Manual.     Specifically, the

Court of Appeals stated:

               Further, the [trial] court could not exclude the material as irrelevant
        based upon the Palmers’ admission that they did not rely upon any information
        in the owner’s manual. This is because reliance on the manufacturer’s


                                                5
        warning is not an element of an inadequate warnings case. Miss. Code Ann.
        §11-1-63 (Rev. 2002). The Palmers introduced evidence that they would have
        noticed and heeded an alternative warning.

Palmer, 2003 WL 22006296, at *4(footnote & citation omitted) (emphasis added).

¶12.    Defendants take great issue with the Court of Appeals’ statement, “reliance on the

manufacturer’s warning is not an element of an inadequate warnings case,” characterizing it as

dramatic error, a “non-sequitur declaration,” and “an invitation for the pursuit of hypothetical

claims.”       This holding, defendants forcefully argue, effectively removes the “causal

connection” requirement of Miss. Code Ann. § 11-1-63©.4

¶13.    It seems to us the Court of Appeals’ statement, and the defendants’ argument, are both

partially correct, that is, reliance on the manufacturer’s warning may, or may not, be an

element of an inadequate warnings case.

¶14.    Complaints of inadequate warnings may charge that certain warnings which were not

given, should have been. In such cases, the Court of Appeals is certainly correct that “reliance

on the manufacturer’s warning is not an element of an inadequate warnings case.”              The absence

or a warning is the gravamen of such claims, and a plaintiff can certainly not be expected to

show reliance on a warning which was not given.

¶15.    However, plaintiffs also may, for a variety of reasons,5 complain that certain warnings

which were given, were defective. In such cases, a plaintiffs must have read and relied upon

the defective warnings to complain of them.


        4
         Miss. Code Ann. § 11-1-63(a)(iii), provides that, in order to recover, the plaintiff must prove
“[t]he defective and unreasonably dangerous condition of the product proximately caused the damages
for which recovery is sought.”
        5
           Typical complaints are that the warnings were confusing, misleading, or difficult to follow.

                                                       6
¶16.    In the case before us, the defendants provided warnings regarding the air bags in two

places: on the sun visors and in the Owners’ Manual.             The Court of Appeals found these

warnings to be confusing, misleading and thus defective.      The picture, according to the Court

of Appeals, renders the Owner’s Manual even more confusing, misleading and defective.

¶17.    Defendants, on the other hand, claim that the warnings in the Owner’s Manual and on

the sun visors were adequate and, even if they weren’t, the plaintiffs -- by their own admission

-- did not read or rely on them.       This, according to plaintiffs, amounts to an absence of the

proximate cause required by Miss. Code Ann. § 11-1-63(a)(iii).

¶18.    Plaintiffs respond by agreeing that they must prove proximate cause, but refer to the

possibility pointed out by the Court of Appeals that “an inadequate warning may proximately

cause an injury precisely because the plaintiff failed to notice it.”    Plaintiffs further point out

that the Court of Appeals “acknowledged that if the manufacturer’s warning is not visible, then

such is further evidence that said warning is inadequate.”

¶19.    These arguments stray miles from the issue before the trial court when it refused to

admit the picture.    The Court of Appeals’ statement that the Palmers “introduced evidence that

they would have noticed and heeded an alternative warning” completely ignores the fact that

the Palmers admitted that they didn’t read the manual. Having not read the manual, the Palmers

would not have “noticed and heeded an alternative warning,” an adequate warning, the picture,

or anything else in the manual.




                                                    7
¶20.    The presence or absence of anything in an unread owner’s manual simply cannot

proximately cause a plaintiff’s damages.6      That is precisely the case here, with respect to the

picture. Plaintiffs make the following statement regarding the picture:

                  The exclusion of the pictorial and language was extremely prejudicial to
        Plaintiffs’ warning case. The pictorial clearly shows that the air bag “warnings”
        were inconsistent and very misleading.              Plaintiffs’ expert, Dr. Wogalter,
        proffered that the pictorial suggested to Plaintiffs’ [sic] and other consumers
        that “it’s a-okay to put a rear-facing child seat here and no doubt an older child
        as well.” A plain reading of the manual would lead any reasonable person to
        believe that if an infant is safe in the front seat, then certainly a ten (10) year old
        is safe in the front seat.

¶21.    Plaintiffs, and Dr. Wogalter, may very well be correct.           However, this case does not

involve plaintiffs who were misled by the manual.        The plaintiffs in this case did not read the

manual at all. Thus, they hardly can claim to have been harmed or misled by it.

¶22.    Although this Court has never addressed this precise issue, we are provided instruction

from other jurisdictions, which have.

¶23.    In Graves v. Church & Dwight Co., 631 A.2d 1248, 1258 (N.J. Super. Ct. App. Div.

1993), the New Jersey court affirmed a judgment for the defendant manufacturer where, even

though it provided an inadequate warning, there was inadequate evidence that warning had ever

been read.

¶24.    Similarly, in General Motors Corp. v. Saenz ex rel. Saenz, 873 S.W.2d 353, 361 (Tex.

1993), the Supreme Court of Texas reversed a jury verdict for the plaintiff, finding no evidence




        6
          This, of course, does not eliminate the possibility that some other failing on the part of a
defendant may prevent or discourage a consumer from accessing the owner’s manual. In such cases, it
is the “other failing,” which would serve as the proximate cause. This is so, whether or not the content
of the manual is defective. We discuss this possibility, as it might apply to this case, infra.

                                                    8
that the inadequacies in the manufacturer’s warning caused the accident.                  The evidence

indicated that the driver ignored the warning plate attached to the doorjamb and the warning

contained in the owner’s manual.

¶25.    Also, in Bushong v. Garman Co., 843 S.W.2d 807, 811 (Ark. 1992), the Arkansas

Supreme Court affirmed summary judgment for the defendant manufacturer.                 The court found

an absence of proximate cause based on the plaintiff’s testimony that he had not read a label

on a cleaner in “over three years,” and that any different or improved warning would have been

“futile” and would not have prevented the injuries which the plaintiff sustained.

¶26.    In Gauthier v. McDonough Power Equip., Inc., 608 So. 2d 1086, 1088-89 (La. Ct.

App. 1992), the court affirmed a verdict for the manufacturer defendant because the father of

the 12-year-old injured child testified that he did not read the warnings contained in the

owner’s manual, and that he routinely failed to read warnings provided with products.

¶27.    In Bloxom v. Bloxom, 512 So. 2d 839, 850-51 (La. 1987), the plaintiff had not read the

warning provided in the automobile operator’s manual before parking his car over combustible

materials. The court held that even an improved warning or set of instructions would have been

“futile” and would not have prevented the injury.

¶28.    We do recognize that, in some inadequate warning cases, "the very nature of the alleged

breach is such that it causes a potential plaintiff to fail to read the warning which causes his

injury. . . . [In such a case], the warnings are potentially inadequate because they are presented

in a manner that prevents a customer from reading them and being warned." E.R. Squibb &

Sons, Inc. v. Cox, 477 So.2d 963, 970 (Ala. 1985).




                                                     9
¶29.      In the case before us, however, plaintiffs do not argue that it was improper for

defendants to place air bag warnings in the owner’s manual. They do, however, assert that the

warning on the sun visor was inadequate to direct the owner (and others) to the manual.

The Court of Appeals stated:

          The Palmers contend that they did not notice the sun visor warnings because
          they were defective, but would have noticed adequate sun visor warnings. The
          sun visor warnings directed the reader to the owner’s manual. Had the Palmers
          heeded the sun visor warnings, they would have read the manual and encountered
          the potentially misleading picture and caption.

Palmer, 2003 WL 22006296, at n.2.

¶30.      This is an argument best suited for the jury. Had the jury in this case found the Jetta’s

warnings, including those on the sun visors, to be defective for failure to properly direct the

plaintiffs to the owner’s manual for air bag warnings, the plaintiffs’ proximate cause

requirement would have been met – not by anything in the manual which might constitute a

defective warning – but by the failure to properly warn the Palmers that they should refer to

the manual.

¶31.      The plaintiffs (and the Court of Appeals) overlook the critical reality that the inadequate

warnings claim (including their claim that the sun visor warning was inadequate) was rejected

by the jury.     Since the Palmers were unable to convince the jury that the sun visors’ warnings

were defective, they cannot now credibly argue that, “[had they] heeded the sun visor warnings,

they would have read the manual and encountered the potentially misleading picture and

caption.”     The fact is, they did not heed the sun visors’ admonition to refer to the owner’s

manual.




                                                  10
¶32.    Here, the issue of the picture does not involve the absence of warning, or an invisible

warning,     or an unnoticeable warning.          Rather, the question is whether the picture was

admissible and, if so, whether jury’s verdict for the defendants on the issue of inadequate

warnings might have been different, had the trial court admitted the picture. Given that the jury

rejected the plaintiffs claim that the sun visor warning was defective, and that the Palmers did

not read the owner’s manual, we conclude that the trial court’s exclusion of a picture and

caption, located within the manual, was not an abuse of discretion. This picture (never seen by

any of the plaintiffs) which was contained in an owner’s manual (never read by any of the

plaintiffs) could not have proximately contributed to Jennifer’s death.        Indeed, nothing in the

manual can be said to have contributed to the accident or to damages in this case. Thus, the

trial court’s exclusion of the picture and caption was not error.

        National Transportation          Safety     Board’s     Safety   Recommendations    of
        November 2, 1995

¶33.    On November 2, 1995, the National Transportation and Safety Board (NTSB) informed

automobile manufacturers by letter of seven accidents in which small children were killed or

seriously injured by air bags. The letter further stated that parents were not being adequately

warned of the danger posed by air bags to children.                      The letter recommended that

manufacturers provide a follow-up warning by mail.

¶34.    Plaintiffs claim that the trial court erred in preventing the Palmers from using this

NTSB letter to cross-examine one of defendants’ witnesses, Richard Bandstra, and one of

defendants’ experts, Alan Dorris.




                                                    11
¶35.    We have carefully reviewed the record and find no indication that plaintiffs attempted

to use the letter to cross-examine Bandstra.         Although plaintiffs’ counsel does not direct us

to it, the record does reflect that counsel made a proffer of the letter through his expert, Dr.

Wogalter.     He testified, however, that he had not reviewed the letter in connection with this

case.

¶36.    With respect to Dorris, plaintiffs’ counsel asked whether he was familiar with the letter.

Counsel for defendants immediately objected, followed by an unrecorded bench conference.

Thereafter, the trial court sustained the relevance objection, and counsel for plaintiffs moved

on to other questions. Counsel for plaintiffs did not suggest or proffer the purpose for which

he wished to use the letter. Nor did counsel attempt to authenticate the letter, or proffer any

proof that the letter was even received by defendants. Thus, the letter was properly excluded

by the trial court.

¶37.    Plaintiffs argue that the NTSB letter “detailed seven child fatalities that were

substantially similar to the subject accident.”      Plaintiffs further claim that the letter states “that

consumers and parents were unaware that a danger existed.” We read the letter differently.




¶38.    First, four of the seven cases addressed by the letter are totally inapposite to the




                                                    12
case before us.7 The letter also addresses a 5-year-old child whose injuries resulted both from

the air bag and head contact with the roof of the vehicle. The only instances cited in the letter

which are at all similar to the case before us include a 6-year-old child and a 7-year-old child.

¶39.        Most of the letter addresses the dangers posed by using rear-facing child seats.

Furthermore, and most importantly, the letter states that in both cases which are similar to this

case, “[t]he safety board also believes that the non-use or improper use of the vehicle

lap/shoulder belts . . . resulted in the child being positioned too close to the air bag

compartment module on the dashboard, so that when the air bag deployed, the child’s head and

upper body were struck by the air bag at its peak deployment force.”          The letter discusses in

detail the considerable efforts made by the NHTSA to inform the public as to the dangers

posed by air bags to infants in rear-facing infant seats. The letter states that the seven accidents

described in the letter, however, “raise some concerns about the effectiveness of the approach

that NHTSA has taken.”

¶40.    With respect to the dangers posed to small children, the letter recognizes that the

NHTSA has promoted air bags as supplemental restraint systems.             However, the letter states

that “the Board is concerned that air bags may kill or severely injure small children under

certain circumstances...” The letter then states:


               Therefore, the Safety Board believes that an immediate, highly visible
        nationwide multi-media campaign should be conducted to advise current owners
        of vehicles with passenger-side air bags, current owners of rear-facing child
        safety seats, and the motoring public of the dangers of placing a rear-facing



        7
        These four cases involve a 3-month old child, a 20-day old child, a 5-month old child, and a
6-month old child, none of whom were sitting in the passenger seat unassisted.

                                                    13
            child safety seat or an unrestrained or improperly restrained small child in the
            front seat of an air bag-equipped vehicle.

(emphasis added).

¶41.        Thus, the letter arguably had probative value as some evidence that the public needed

to be warned that small children (such as Jennifer) should not ride in the front passenger seat

without using the seat belt restraints. However, Jennifer’s father freely admitted that the entire

family, including Jennifer,     knew they were supposed to use the seat belts.             Specifically, he

testified

            Q.     Let me ask you what the family’s policy was about wearing seat belts.

            A.     We would always buckle up, and there were always – because that was
                   just a policy that we had that we all buckled up, and we always buckled
                   from my knowledge. They were always buckled, and the kids were very
                   good about buckling up.

            Q.     Let me ask you this. When you were in the car with all four family
                   members, you and Lynn and the two girls, what was your policy with
                   regard to it and what did you observe?

            A.     We would always buckle up, and a lot of times when we would get in the
                   car, my daughter Jenny would be the first one to say don’t forget to
                   buckle up.

¶42.        This testimony by Jennifer’s father leaves little doubt that the warning envisioned by the

November 2 letter would serve only to admonish the Palmers to do that which they already

knew to do.         Thus, its probative value is not such that it could rise above harmless error.

Additionally, while there certainly may be some value to evidence which shows lack of public

awareness, the potential for prejudice is certainly evident, and was weighed by the trial judge

who did not abuse his discretion.

            Videos recreating the accident


                                                     14
¶43.     The trial court allowed the defendants to show the jury three videos which depicted

several sled tests with dummy occupants. The purpose of the tests, according to defendants,

was to demonstrate “occupant kinematics,” or the movement of persons inside a vehicle during

a crash.      Plaintiffs, on the other hand, argue that there are too many differences in the staged

demonstration and the real accident, rendering the videos prejudicial and misleading.           These

matters are left to the sound discretion of the trial judge.      We cannot say he abused that

discretion in allowing the videos.

         Plaintiffs’ experts (Dr. Wogalter).

¶44.     The trial court accepted (without objection) plaintiffs’ expert, Dr. Michael S. Wogalter,

as an expert in human factors and warnings.8 Dr. Wogalter testified that he thought the warning

labels in the Volkswagen were inadequate.         Specifically, in response to questions asked by

plaintiffs’ counsel, he testified:

         Q.       I’ll ask you if you have had an opportunity to review the warning labels
                  that were in the 1995 Jetta that was the subject of this accident. Have
                  you done so?

         A.       Yes, I have.

         Q.       I think they have been actually introduced. The actual sun visor is in
                  evidence, and here is one that’s marked as Exhibit 7, which is the actual
                  sun visor, and ask if you can identify that or if you’ve seen that
                  previou7sly, not the exact label – I mean the label and not the exact visor
                  in your hand.

         A.       Yes, I’ve seen this label.




         8
         Dr. Wogalter has a B.A. in psychology, an M.A. in experimental psychology and a Ph.D. in
human factors psychology. He is an associate professor of psychology at North Caroline State
University, and his area of expertise was warnings.

                                                  15
        Q.      I’ll ask if at my request if you had an opportunity to review that label and
                if you have an opinion as to whether or not it complies with the
                requirements and mandates of Federal Motor Safety Standard Act 208?

        A.      I have reviewed it, and I do have an opinion about it.

        Q.      And what is that opinion, Dr. Wogater?

        A.      That it does not comply.

        Q.      With 208?

        A.      Yes.

¶45.    At that point, Dr. Wogater then proceeded to explain why, in his opinion, the sun visor

warnings were defective.      However, when plaintiffs’ counsel announced that he was going to

ask “questions with regard to the warnings about the dangers of passenger air bags to young

children in the right front seat,” counsel for defendants objected, pointing out that Dr. Wogater

was not qualified to testify regarding the dangers presented by air bags to young children. This

was followed by a proffer, out of the presence of the jury, which clearly demonstrated that Dr.

Wogater had no expertise in the mechanics or dangers of air bags in general, or the Jetta’s air

bags, in specific. For instance, when asked whether the dangers presented to a child by an air

bag depended on how fast it deploys, Dr. Wogater testified, “I would assume so, yes.” Then,

when asked how fast the Jetta’s air bags deployed, he testified, “I don’t know the miles per hour

or the velocity.” He further testified that he did not know the peak performance of the Jetta’s

air bags. The trial judge observed:

        He's read a few articles, but there's been no showing to the Court that he has
        factual information or such knowledge for him to give an opinion as to what
        specific types of warnings there need to be for this kind of air bag in this
        automobile.



                                                   16
        I mean I could come up with some warnings or anybody else could that we think
        may be appropriate warnings, but unless we have some knowledge about air bags
        and the dangers and have either done testing ourselves or have read extensively
        in the field where tests were conducted and has some definite knowledge as a
        recognized expert on this, then it's nothing more than a lay person would have.


¶46.    Then, based upon Dr. Wogater’s lack of knowledge or expertise in the dangers presented

by air bags, the trial court held that he could not testify regarding such dangers.

¶47.    We recognize that, in many cases, experts must stray slightly, and briefly, from their

field of expertise to arrive at opinions and conclusions. However, the area found by the trial

court to be off limits involved an evaluation by Dr. Wogater of the extent of the danger posed

by the Jetta’s air bags, and then matching that danger with an appropriate warning. This clearly

was outside his expertise, and such opinions and testimony was properly excluded. We do not

find, however, that the trial court prevented Dr. Wogater from testifying whether, in his

opinion, the warnings on the sun visor were effective, likely to be seen or likely to be heeded.

He was allowed to testify that, in his opinion, the sun visor warnings did not comply with

federal law, and he was allowed to explain why he held that opinion.

¶48.    We cannot find that the trial court abused its discretion in refusing to allow Dr.

Wogater to testify about the dangers presented by air bags to children.

        Plaintiffs’ experts (Myrna Kruckenburg).

¶49.    During discovery, it appears9 that one or more of the defendants filed interrogatories

to the plaintiffs, seeking information concerning experts, as allowed by M.R.C.P. 26(b)(4).



        9
        The record before us does not include the interrogatories or other discovery. We do note,
however, that certain discovery information is included as various exhibits to various motions. We have
no way to know if the discovery and responses provided to us is complete.

                                                     17
Plaintiffs’ only response to this interrogatory stated, “Plaintiffs have not yet determined who

they may call as an expert at the trial of this matter, but will timely supplement this response.”

The record does not reflect that this supplemental interrogatory response was ever filed.10

¶50.    We note that the trial court entered several scheduling orders which required the parties

to “designate their trial expert witnesses.” We further note that, at some point, plaintiffs filed

a document titled “Plaintiffs’ Designation of Expert Witnesses,” which purports to “comply”

with “Rule 26.”         However, outside the requirement that parties properly respond to

interrogatories, we find no compliance requirement under Rule 26. We find it more likely that

the designation of experts filed by plaintiffs was in response to the scheduling order.

¶51.    In their designation of experts, plaintiffs named Myrna Kruckenburg as a fact and expert

witness to testify to “[t]he extent and nature of injuries sustained by Plaintiffs, Randal Palmer,

Lynn Palmer, and Ann Palmer, as well as the treatment rendered.” Plaintiffs further stated that

they had “not yet received Mr. and Mrs. Kruckenburgs’ [sic] curriculum vitae or estimated cost

for deposition or trial testimony, but will supplement as soon as said documents are received.”

Finally, plaintiffs stated whey were not in possession of any reports by Mr. and Mrs.

Kruckenburg. No other information was provided to defendants prior to trial.

¶52.    At trial, when plaintiffs attempted to call Kruckenburg, defendants objected, claiming

plaintiffs had not provided sufficient expert information pursuant to the requirements of the

Mississippi Rules of Civil Procedure.          Plaintiffs responded that they had contacted counsel

for defendants prior to trial and offered to present Kruckenburg for deposition. The trial court



        10
          Unlike most other discovery documents, including responses to a scheduling order, answers
to interrogatories must be sworn. M.R.C.P. 33(b)(1).

                                                    18
found the offer of a deposition to be inadequate and refused to allow any testimony from Ms.

Kruckenburg.

¶53.    Only in cases of abuse of discretion will we reverse a trial court’s ruling on discovery

matters. Harkins v. Paschall, 348 So. 2d 1019, 1022 (Miss. 1977). The Court of Appeals

found that the trial judge abused his discretion in refusing to allow Ms. Kruckenburg to testify,

based upon inadequate discovery responses.                Specifically, the Court of Appeals stated:

“Volkswagen had the burden to request further discovery or file a motion to compel, but it

failed to complain until the trial. Because Volkswagen did not meet its burden, the trial court

erred by excluding Kruckenburg’s testimony on this ground.”Palmer, 2003 WL 22006296,

at *16 (citation omitted).

¶54.    We cannot agree that parties who file appropriate interrogatories seeking expert

information acquire the additional burden of filing a motion to compel, where they are

provided an answer which promises supplementation.              The trial court was well within its

discretion in disallowing the testimony of Ms. Kruckenburg, based upon the failure of

plaintiffs to provide expert information in response to either the interrogatory filed by

defendants and the trial court’s scheduling order.

        Defendants’ expert, Greg Miller.

¶55.    Defendants filed their designation of expert witnesses on June 30, 2000, which was the

deadline set by the trial court in its March 16, 2000, scheduling order. Greg Miller was not

included.   However, when defendants filed their supplemental responses to interrogatories on

December 22, 2000, they stated:




                                                     19
       All defendants supplement their prior responses to state that they may call as a
       witness at trial Greg Miller, an engineer . . . . Defendants expect Mr. Miller to
       testify, generally speaking, regarding the pertinent airbag technology utilized in
       the subject vehicle, and compare it to other vehicles of the same generation.
       Mr. Miller is also expected to testify regarding his analysis of TRW’s11
       validated data from the test lot that pertains to and includes the passenger airbag
       inflator for the subject vehicle, and how it compares to competitive vehicles, as
       well as how it compares to the tank test curve that is being relied upon by Mr.
       Rudnitsky for his opinions that the subject airbag was “aggressive.” The test lot
       data rebuts Mr. Rutnitsky’s opinions in this regard. Specifically, Mr. Miller has
       obtained the ballistic tank test lot data from TRW and scaled it for comparison
       to the inflator information in Appendix A. . . , being relied upon by Mr.
       Rudnitsky. Based on this comparison, the rise rate for the subject inflator is
       much closer to the average for the 1995 model year than the comparison
       conducted by Mr. Rudnitsky. By way of example, the rise rate, normalized for
       a 100 liter tank, is approximately 9.2 kpa/ms. Mr. Miller is also expected to
       testify in general rebuttal to the testimony of Mr. Rudnitsky regarding the so-
       called “dual stage” inflators that Mr. Rudnitsky claims to have been analyzed
       while at General Motors when he was developing the “F” car.

               To the extent the above detailed information is considered to be expert
       testimony, defendants hereby supplement their expert designation to list Mr.
       Miller.

¶56.   When plaintiffs objected to this expert designation, six months after the deadline, the

trial court found that Miller would be precluded from testifying as an expert.          However,

defendants persuaded the trial court to allow “lay testimony” from Miller.        The trial judge

stated that “[Mr. Miller’s going to] authenticate some engineering laboratory tests, or whatever,

some engineering tests. He’s going to testify as a fact witness.” The trial court further stated

that “the defendants are proceeding with only factual testimony from Mr. Miller, and he will

not be able to give opinion testimony. . . . Mr. Miller . . . cannot get into opinion testimony,

and specifically comparisons.”



       11
          TRW Vehicle Safety Systems, Inc., an independent company which manufactured the air bag
used in the Palmers’ Jetta.

                                               20
¶57.    Counsel for plaintiffs      then requested a continuing          objection      to   Miller’s entire

testimony, claiming that it would be expert testimony disguised as lay testimony.                 The trial

court overruled the continuing objection, and defendants called Miller to the witness stand.

¶58.    During his testimony (which defendants characterize as simply factual),              Miller offered

inter alia the following answers:

        Q.      What different temperatures to you utilize in conducting those tests?

        A.      Well, the procedure at the time was to conduct three ambient, which is
                room temperature, and one hot deployment, which is 185 degrees
                Fahrenheit.

        Q.      Why would you conduct a hot deployment?

        A.      In a worst case scenario if a car were to be sitting in Phoenix up in the
                instrument panel and it were to be heat soaked and you were to drive
                away and have a crash in a deployment, what happens with this particular
                type of inflation, and for that matter just about any type of inflation, is it
                becomes more energetic. The output can rise based on the temperature,
                so one of the things that we want to check is to make sure that the
                warmer temperature that the tank curve is still within its corridor. If it’s
                too high, you can have trouble hanging on to the door or you can
                overexpand the module, that sort of thing.

                                                  ***

        Q.      Would you demonstrate that for us and give us the peak pressure and rise
                rate based on Exhibit 46B. 12

        Q.      All I want is your calculation based on your experience at TRW, the
                calculation of the peak pressure and the rise rate on this particular one.

        A.      If I use this as a straight edge and line it up with the marks here, looking
                for the approximate peak, I’m drawing a line here and saying the
                maximum slope occurred someplace in this 10 millisecond window here.
                Now, what I would do is simply pick up where this point crosses and find


        12
         At this point, counsel for plaintiffs lodged another objection to the expert testimony. The trial
judge overruled the objections, stating, “he hasn’t given any opinions yet.”

                                                    21
                out where this crosses, come down here, and then you can look at what
                the peak pressure is based on this chart, and if you do the calculations,
                this is 300 kpa minus zero, and then this would be 54 milliseconds minus
                the 8 milliseconds here to find out what this distance is, and if you plug
                that in your calculator – I happen to know what the answer is – it is 6.5,
                and the units on that are kpa per millisecond. The peak slope over here
                is between these two marks which would be about 212.

¶59.    Throughout his testimony,        Miller was asked to make and explain highly technical

calculations, and then apply his results to industry standards and to explain why the testing and

calculations he approved were necessary.

¶60.    The problem appears to be a misunderstanding of expert testimony.          M.R.E., 702 does

not limit expert testimony to that which is expressed in the form of opinion.         The rule states:




        If scientific, technical, or other specialized knowledge will assist the trier of
        fact to understand the evidence or to determine a fact in issue, a witness
        qualified as an expert by knowledge, skill, experience training or education, may
        testify thereto in the form of an opinion or otherwise.

Miss. R. Evid. 702 (emphasis added).

¶61.    The testimony provided by          Miller, a highly-skilled, specially educated engineer, very

definitely required scientific, technical knowledge beyond that of the randomly selected adult.

Such testimony therefore constituted expert testimony. Cotton v. State, 675 So. 2d 308, 311

(Miss. 1996), citing Sample v. State, 643 So. 2d 524, 530 (Miss. 1994); Miss. State Hwy.

Comm’n v. Gilich, 609 So. 2d 367, 377 (Miss. 1992) (lay opinions require no specialized

knowledge); Wells v. State, 604 So. 2d 271, 279 (Miss. 1992) (testimony requiring particular

knowledge to assist trier of fact is expert testimony).




                                                     22
¶62.       In Cotton, the controversy involved a witness who explained to the jury the mechanical

features of a particular brand of gun.      The witness stated that the gun would not fire unless a

specific sequence of events was followed. We found that, “[i]n order to assist the jury, he was

indeed required to reveal particular knowledge about the Llama .45 caliber semi-automatic

pistol. We find that the testimony . . . constituted expert opinion.” Id. at 311.

¶63.       To be clear, the test for expert testimony is not whether it is fact or opinion. The test

is whether it requires “scientific, technical, or other specialized knowledge” beyond that of the

randomly selected adult.”       If so, the testimony is expert in nature, and must be treated in

discovery, and at trial, as such.

¶64.       On this issue, we find the conclusion reached by the Court of Appeals was exactly

correct:

           The trial court abused it discretion by allowing Miller’s testimony to stray into
           the realm of scientific, technical and specialized knowledge that only could be
           admitted as expert testimony after assessment pursuant to Rule 702.

                   Further, the Palmers were prejudiced by Miller’s impermissible expert
           testimony because Miller’s testimony rebutted that of the Palmer’s expert,
           Rudnitsky. Rudnitsky opined that the average air bag inflation rise rate was 6
           kilopascals per millisecond, and that the Jetta inflator’s rise rate was 10.5
           kilopascals per millisecond. He stated that this was 84% higher than the average
           for 1995 cars. He also stated that the Jetta’s peak pressure was 26% higher than
           average for 1995 cars. He concluded that the Jetta’s air bag was overly
           aggressive. Miller calculated and charted the 1995 Jetta inflator’s peak pressure
           and rise rate at three different temperatures. He averaged the three peak
           pressures and arrived at an average rise rate of 6.7 kilopascals per millisecond.
           He averaged the three rise rates and arrived at an average rise rate of 211
           kilopascals. Rudnitsky’s higher calculations were offered to show that the
           Jetta’s air bag was aggressive, and Miller’s lower calculations of the Jetta’s peak
           pressure and rise rate were offered to rebut Rudnitsky’s conclusions. The trial
           court had already held that the Palmers were unprepared for expert testimony by
           Miller.



                                                    23
Palmer, 2003 WL 22006296, at *19.

        Seat belt use by Anne Palmer and the Palmer family.

¶65.    Defendants introduced evidence tending to show that the Palmer family did not

regularly use their seat belts. The purpose of this evidence, according to defendants, was the

inference that, given all the warnings and admonitions concerning seat belt use, persons who

ignored such warnings would probably not heed air bag warnings. The Court of Appeals found

that Jennifer's seat belt use was admissible,13 but the rest of the family's was not. The reason

stated by the Court of Appeals for finding seat belt use by Anne Palmer and the Palmer family

inadmissible, was that such evidence could have been interpreted as negligence, violating Miss.

Code Ann. § 63-2-3, which provides:

        This chapter shall not be construed to create a duty, standard of care, right or
        liability between the operator and passenger of any passenger motor vehicle
        which is not recognized under the laws of the State of Mississippi as such laws
        exist on the date of passage of this chapter or as such laws may at any time
        thereafter be constituted by statute or court decision. Failure to provide and use
        a seat belt restraint device or system shall not be considered contributory or
        comparative negligence, nor shall the violation be entered on the driving record
        of any individual.

¶66.    In Estate of Hunter v. General Motors Corp., 729 So.2d 1264 (Miss. 1999), General

Motors persuaded the trial court to admit evidence of seat belt non-use. On appeal, we held:


        This Court concludes that evidence of seat belt non-usage may constitute
        relevant evidence in some (but by no means all or even most) cases, so long as
        (1) the evidence has some probative value other than as evidence of negligence;
        (2) this probative value is not substantially outweighed by its prejudicial effect



        13
        The Court of Appeals held that, “if the jury accepted the argument that the air bag was a
supplemental restraint, it went to the crux of whether Jennifer used the air bag as it was designed.”
Palmer, 2003 WL 22006296, at *24.

                                                    24
           (See Miss. R. Evid. 403) and is not barred by some other rule of evidence and
           (3) appropriate limiting instructions are given to the jury, barring the
           consideration of seat belt non-usage as evidence of negligence.

Estate of Hunter, 729 So.2d at 1268. Since no limiting instruction was given in Hunter, this

Court found reversible error. See also Herring v. Poirrier, 797 So.2d 797 (Miss. 2000) (use

of seat belts admissible on the issue of injuries and their severity).      See also Golonka v.

General Motors Corp., 65 P.3d 956 (Ariz. Ct. App. 2003); Graves v. Church & Dwight Co.,

631 A.2d 1248 (N.J. Super. Ct. App. Div. 1993) (plaintiff's smoking notwithstanding cigarette

warning labels was relevant evidence as to whether he would have followed adequate warning

on baking soda) (plaintiff's propensity for following other warnings in her truck's owner's

manual could cause jury to infer that she would have heeded better warning about shifting

defect);

¶67.       Inadequate warnings cannot serve as the proximate cause of injuries where adequate

warnings would have resulted in the same injuries.           Where a plaintiff claims inadequate

warnings, the defendant must be allowed to introduce evidence which would tend to persuade

a jury that, even if the warnings had been adequate, the plaintiff would not have heeded them.

Where, as here, evidence of non-use of seat belts is offered for that purpose, and provided it

passes all other tests of admissibility, it may be admitted.    The trial court should caution the

jury and instruct it on the limited use of the evidence.

¶68.       In this case, the trial court was correct to admit the evidence, but should have given a

cautionary instruction. On remand, however, the adequacy of warnings will not be an issue, and

the evidence of seat belt use by the Palmer family (other than Jennifer) will not be relevant.




                                                      25
                                              CONCLUSION

¶69.    For these reasons, we affirm in part and reverse in part the judgments of the Court of

Appeals and the Circuit Court of the First Judicial District of Hinds County, and we remand

this case to the circuit court for a new trial consistent with this opinion limited to the

plaintiffs’ claim of defective design.

¶70. THE JUDGMENT OF THE COURT OF APPEALS IS AFFIRMED IN PART AND
REVERSED IN PART AND THE JUDGMENT OF THE CIRCUIT COURT OF HINDS
COUNTY IS AFFIRMED IN PART AND REVERSED AND REMANDED IN PART.

     SMITH, C.J., WALLER AND COBB, P.JJ., CARLSON AND RANDOLPH JJ.,
CONCUR. GRAVES, J., CONCURS IN RESULT ONLY. EASLEY, J., CONCURS IN
PART AND DISSENTS IN PART WITH SEPARATE WRITTEN OPINION. DIAZ, J., NOT
PARTICIPATING.

        EASLEY, JUSTICE, CONCURRING IN PART AND DISSENTING IN PART:




¶71.    I concur with the majority’s decision to affirm the jury verdict in favor of Volkswagen

on the issue of inadequate warnings.              The Palmers admitted that they never read the

Volkswagen owner’s manual.           Therefore, the argument that the picture and caption contained

in the owner’s manual was confusing, misleading and defective is not relevant or applicable to

the issue of inadequate warning.         I support the trial court’s decision to exclude the picture and

caption as irrelevant, based on the admission that the Palmers did not rely on or read the

owner’s manual.

¶72.    However, I must respectfully dissent from the majority’s decision to reverse the verdict

in favor of Volkswagen and remand for retrial based on the testimony of Volkswagen’s witness,

Greg Miller. According to the record, Miller was not properly designated as an expert to the



                                                     26
Plaintiffs by Volkswagen.      The trial court allowed Miller to testify as a fact witness providing

only factual testimony.     Miller was not allowed to provide opinion testimony.      The majority

finds Miller’s testimony constituted expert testimony pursuant to M.R.E. 702.       In my opinion,

the trial court properly limited Miller’s testimony to prevent him from rendering an expert

opinion.      I disagree that Miller’s testimony, limited to that of a factual witness, constituted

expert testimony.

¶73.       Therefore, I must respectfully concur in part and dissent in part, as I would affirm the

trial court’s decision in favor of Volkswagen in toto.




                                                    27
