MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),                                    FILED
this Memorandum Decision shall not be
regarded as precedent or cited before any                            Sep 06 2019, 7:38 am

court except for the purpose of establishing                              CLERK
                                                                      Indiana Supreme Court
the defense of res judicata, collateral                                  Court of Appeals
                                                                           and Tax Court
estoppel, or the law of the case.


ATTORNEYS FOR APPELLANT                                  ATTORNEYS FOR APPELLEES
Mary Jane Lapointe                                       Barry B. Sutton
Daniel Lapointe Kent                                     Clark Hill PLC
Lapointe Law Firm, P.C.                                  Birmingham, Michigan
Indianapolis, Indiana
                                                         Crystal G. Rowe
                                                         Kightlinger & Gray, LLP
                                                         New Albany, Indiana


                                           IN THE
    COURT OF APPEALS OF INDIANA

Christopher B. Elliott,                                  September 6, 2019
Appellant-Plaintiff,                                     Court of Appeals Case No.
                                                         18A-PL-1450
        v.                                               Appeal from the Johnson Superior
                                                         Court
First String Products LLC, First                         The Honorable Marla Clark, Judge
String USA, and Firststring                              Trial Court Cause No.
LLC,                                                     41D04-1512-PL-126
Appellees-Defendants.



Friedlander, Senior Judge.




Court of Appeals of Indiana | Memorandum Decision 18A-PL-1450 | September 6, 2019             Page 1 of 15
                                          Statement of the Case
[1]   Christopher B. Elliott appeals the trial court’s grant of summary judgment to

      First String Products LLC, First String USA, and Firststring LLC (collectively,

      “First String”). We affirm.


                                                         Issues
[2]   Elliott raises two issues, which we restate as:


                 1.       Whether the trial court erred by excluding in part the
                          testimony of one of Elliott’s expert witnesses.


                 2.       Whether the trial court erred in granting First String’s
                                                          1
                          motion for summary judgment.


                                   Facts and Procedural History
[3]   Elliott purchased a compound bow from a friend several months before the

      incident at issue. He did not receive any manuals or written instructions.

      Elliott used the bow for target shooting several days a week for several months

      after the purchase, without incident.


[4]   On September 13, 2015, Elliott took his bow to J. Roberts Marketing, LLC

      d/b/a Honey Creek Tackle (“Honey Creek”), a store that sells and installs

      strings for hunting bows. Honey Creek replaced the existing bowstring with a




      1
          First String has filed a motion for oral argument. We deny the motion by separate order.


      Court of Appeals of Indiana | Memorandum Decision 18A-PL-1450 | September 6, 2019              Page 2 of 15
      string that had been manufactured by First String. The packaging for the

      bowstring included only one advisement: “Professional installation of the

      product is highly recommended.” Appellant’s App. Vol. II, p. 122. About a

      week after Honey Creek installed the new bowstring, Elliott suffered a severe

      eye injury when the bowstring broke while he was target shooting.


[5]   On December 16, 2015, Elliott sued First String, alleging the bowstring was

      defectively designed or manufactured, and Honey Creek, alleging negligent

      installation of the bowstring. He requested a jury trial. First String and Honey

      Creek separately filed answers denying liability.


[6]   During the discovery process, the parties disclosed the identities of their expert

      witnesses. On October 18, 2016, Elliott moved for an enlargement of time to

      identify an additional expert witness. First String and Honey Creek objected to

      the motion, and the trial court denied it.


[7]   On November 10, 2016, First String filed a motion to exclude testimony by one

      of Elliott’s designated experts, John Carlson, and a motion for summary

      judgment. Honey Creek joined in First String’s motions. Elliott filed responses

      in opposition to the motions. First String filed replies in support of its motions.


[8]   On February 1, 2017, the trial court granted in part and denied in part First

      String’s motion to exclude Carlson’s testimony. The court determined:


              Carlson is an award-winning archer and has spent many, many
              years shooting bows and repairing bows. He was a member of a
              trade association through which he received training and
              information, and he owned a business repairing bows. He is
      Court of Appeals of Indiana | Memorandum Decision 18A-PL-1450 | September 6, 2019   Page 3 of 15
               qualified as a skilled witness regarding the use of and operation
               of cross and compound bows. He is also qualified to inspect the
               bow and strings in question and testify about his observations.
               This knowledge will assist the jury to understand the evidence.
               As to these matters, the Motion is DENIED.


               However, his testimony about whether the string was defective
               and why the string in question broke is too speculative and the
               risk of jury confusion is substantially outweighed by the
               probative value of the evidence. He testified that he had no
               knowledge of FirstString’s [sic] manufacturing process, and that
               he did no testing or measurements, but relied only on his own
               visual examination and a brief conversation with the Plaintiff.
               As to his opinion that the string had been cut in the
               manufacturing process, he admitted that there was no physical
               evidence to support his opinion and that it was “an assumption
               on [his] part.” He also agreed that his opinion was “a pure
               guess.” This evidence is inadmissible.

                  2
      Id. at 16.


[9]   Next, the court held a hearing on First String’s motion for summary judgment.

      On May 22, 2017, the court granted First String’s motion, determining it was

      entitled to summary judgment on Elliott’s claims that the bowstring was

      defectively designed or manufactured.




      2
       The trial court also rejected as “too speculative” Carlson’s testimony about whether Honey Creek acted
      negligently in the course of restringing the bow. Appellant’s App. Vol. II, p. 16. That portion of the ruling is
      not at issue in this appeal.

      Court of Appeals of Indiana | Memorandum Decision 18A-PL-1450 | September 6, 2019                   Page 4 of 15
[10]   Elliott filed a motion to certify the summary judgment ruling for interlocutory

       appeal. The trial court granted the motion, but this Court denied Elliott’s

       request to accept jurisdiction over the appeal. Elliott v. J. Roberts Mktg., No.

       41A05-1706-PL-1391 (Ind. Ct. App. July 28, 2017).


[11]   On June 14, 2018, Elliott and Honey Creek jointly moved to dismiss Elliott’s

       claims against Honey Creek. The trial court granted the motion and entered a

       final judgment. This appeal followed.


                                    Discussion and Decision
                                  1. Expert Witness Testimony
[12]   Elliott argues the trial court erred in barring his expert witness from testifying

       about whether the bowstring was defectively manufactured and why it broke.

       He claims that Carlson’s testimony on those subjects was reliable and based on

       valid principles. First String responds that Carlson’s testimony about the cause

       of the accident is too speculative to be admitted as evidence.


[13]   We review a trial court’s decision to admit or exclude evidence, including

       expert witness testimony, for an abuse of discretion. Wilkerson v. Carr, 65

       N.E.3d 596 (Ind. Ct. App. 2015). A trial court abuses its discretion when its

       decision “is clearly against the logic and effect of the facts and circumstances

       before the court, or the reasonable, probable, and actual deductions to be drawn

       therefrom.” Id. at 599-600. We presume the trial court’s evidentiary decision is

       correct, and the party challenging that decision bears the burden of



       Court of Appeals of Indiana | Memorandum Decision 18A-PL-1450 | September 6, 2019   Page 5 of 15
       demonstrating an abuse of discretion. 5200 Keystone Ltd. Realty, Inc. v. Filmcraft

       Labs., Inc., 30 N.E.3d 5 (Ind. Ct. App. 2015).


[14]   In general, relevant evidence is admissible, and “[i]rrelevant evidence is not

       admissible.” Ind. Evid. Rule 402. “Evidence is relevant if . . . it has any

       tendency to make a fact more or less probable than it would be without the

       evidence; and . . . the fact is of consequence in determining the action.” Ind.

       Evid. Rule 401. Indiana Evidence Rule 702 governs the admission of expert

       witness testimony, and it provides as follows:


                (a) A witness who is qualified as an expert by knowledge, skill,
                    experience, training, or education may testify in the form of
                    an opinion or otherwise if the expert’s scientific, technical, or
                    other specialized knowledge will help the trier of fact to
                    understand the evidence or to determine a fact in issue.

                (b) Expert scientific testimony is admissible only if the court is
                    satisfied that the expert testimony rests upon reliable scientific
                    principles.

       The trial court is considered the gatekeeper for the admissibility of expert

       opinion evidence under Rule 702. Bennett v. Richmond, 960 N.E.2d 782 (Ind.

       2012).


[15]   In Howerton v. Red Ribbon, Inc., 715 N.E.2d 963 (Ind. Ct. App. 1999), trans.

       denied, Howerton became injured as he climbed out of a hotel bathtub. He had

       grabbed a wall-mounted bar to help pull himself up, but the bar pulled away

       from the wall as he rose, causing him to fall.




       Court of Appeals of Indiana | Memorandum Decision 18A-PL-1450 | September 6, 2019   Page 6 of 15
[16]   Howerton sued the bar’s manufacturer, among other defendants, claiming

       negligent design and manufacture. He intended to present expert testimony

       from an engineer about the bar. The manufacturer moved to exclude the

       engineer’s testimony. The trial court granted the motion in part, determining

       the engineer could not express an opinion as to whether the bar was defectively

       manufactured or designed. The court allowed the engineer to testify about

       what he observed while inspecting the bar.


[17]   On appeal, Howerton argued the trial court erred in excluding in part his expert

       witness’s testimony. A panel of this Court noted that, among other

       shortcomings, the engineer: (1) had not tested the bar; (2) did not test any

       exemplars; (3) had no knowledge about how the unit was manufactured or

       installed; (4) did not know whether there were any prior incidents involving the

       bar; and (5) had not performed any research on grab bars or similar units. The

       Court determined the expert witness’s failure to consider these factors meant his

       opinion was more likely to be “subjective belief or unsupported speculation.”

       Id. at 967. The Court affirmed the trial court’s decision to exclude the

       engineer’s testimony as to whether the bar was defectively designed or

       manufactured.


[18]   In the current case, Carlson’s opinions about the cause of the accident and

       whether the bowstring was defectively manufactured have shortcomings similar

       to the engineer’s testimony in Howerton. Carlson conceded he was not an

       engineer or accident reconstruction expert. He had never before been asked to

       determine how an archery accident had occurred. Carlson did not subject the

       Court of Appeals of Indiana | Memorandum Decision 18A-PL-1450 | September 6, 2019   Page 7 of 15
       bow or the bowstring to any tests beyond a visual examination. In addition, he

       had no knowledge about First String’s design or manufacturing processes.

       Finally, Carlson conceded that he did not know how the bowstring broke.


[19]   Elliott argues that Carlson’s opinion testimony is admissible because Carlson’s

       investigation (which consisted of examining the bow and bowstring and talking

       with Elliott) led him to rule out user error in storing, carrying, and firing the

       bow, and as a result he concluded the accident must have been caused by a

       defect in the bowstring. We disagree. Speculation will not pass for an expert

       opinion under Rule 702. Clark v. Sporre, 777 N.E.2d 1166 (Ind. Ct. App. 2002).

       Carlson testified that his conclusion that the bowstring had been damaged

       during the manufacturing process was “an assumption on my part.”

       Appellant’s App. Vol. II, p. 152. We conclude the trial court did not abuse its

       discretion in barring Carlson from testifying about what caused the bowstring to

       break and whether the bowstring was defectively manufactured.


                                        2. Summary Judgment
[20]   Elliott next argues the trial court should not have granted First String’s motion

       for summary judgment on his claim for products liability, claiming there are

       disputes of fact about the circumstances and cause of the accident. First String

       responds that its expert witness testimony established that it is entitled to

       summary judgment, and Elliott’s evidence fails to demonstrate disputes of

       material fact.




       Court of Appeals of Indiana | Memorandum Decision 18A-PL-1450 | September 6, 2019   Page 8 of 15
[21]   Orders for summary judgment are reviewed de novo, and we apply the same

       standard of review as the trial court. AM Gen. LLC v. Armour, 46 N.E.3d 436

       (Ind. 2015). Summary judgment shall be granted “if the designated evidentiary

       matter shows that there is no genuine issue as to any material fact and that the

       moving party is entitled to a judgment as a matter of law.” Ind. Trial Rule

       56(C). The summary judgment process has two steps: the moving party must

       first make the showing required by Rule 56. AM Gen., 46 N.E.3d 436. “Upon

       this showing, the nonmoving party then has the burden to demonstrate that

       there is a genuine issue of material fact.” Id. at 439.


[22]   The Court accepts as true those facts alleged by the nonmoving party, construes

       the evidence in favor of the nonmovant, and resolves all doubts against the

       moving party. Breining v. Harkness, 872 N.E.2d 155 (Ind. Ct. App. 2007), trans.

       denied. A trial court’s order on summary judgment is cloaked with a

       presumption of validity, and the party appealing from a grant of summary

       judgment must bear the burden of persuading this Court that the decision was

       erroneous. Id. We may affirm the grant of summary judgment upon any basis

       argued by the parties and supported by the record. Id.


[23]   Indiana Code section 34-20-1-1 (1998) et seq., also known as the Indiana

       Products Liability Act (“IPLA”), governs product liability claims in Indiana. A

       consumer may file a claim for injuries caused by a defective product, as follows:


               a person who sells, leases, or otherwise puts into the stream of
               commerce any product in a defective condition unreasonably
               dangerous to any user or consumer or to the user’s or consumer’s

       Court of Appeals of Indiana | Memorandum Decision 18A-PL-1450 | September 6, 2019   Page 9 of 15
               property is subject to liability for physical harm caused by that
               product to the user or consumer or to the user’s or consumer’s
               property if:


               (1) that user or consumer is in the class of persons that the seller
               should reasonably foresee as being subject to the harm caused by
               the defective condition;


               (2) the seller is engaged in the business of selling the product; and


               (3) the product is expected to and does reach the user or
               consumer without substantial alteration in the condition in which
               the product is sold by the person sought to be held liable under
               this article.


       Ind. Code § 34-20-2-1 (1998).


[24]   In addition:


            The rule stated in [Ind. Code § 34-20-2-1] applies even if:

            (1) the seller has exercised all reasonable care in the manufacture and
            preparation of the product; and

            (2) the user or consumer has not bought the product from or entered
            into any contractual relation with the seller.

            However, in an action based on an alleged design defect in the product
            or based on an alleged failure to provide adequate warnings or
            instructions regarding the use of the product, the party making the
            claim must establish that the manufacturer or seller failed to exercise
            reasonable care under the circumstances in designing the product or in
            providing the warnings or instructions.

       Ind. Code § 34-20-2-2 (1998).


       Court of Appeals of Indiana | Memorandum Decision 18A-PL-1450 | September 6, 2019   Page 10 of 15
[25]   The General Assembly defines a defective product as follows:


               A product is in a defective condition under this article if, at the
               time it is conveyed by the seller to another party, it is in a
               condition:


               (1) not contemplated by reasonable persons among those
               considered expected users or consumers of the product; and


               (2) that will be unreasonably dangerous to the expected user or
               consumer when used in reasonably expectable ways of handling
               or consumption.


       Ind. Code § 34-20-4-1 (1998).


[26]   A product can be defective within the meaning of the statute because of a

       manufacturing defect, a defective design, or a failure to warn of dangers while

       using the product. Campbell Hausfeld/Scott Fetzer Co. v. Johnson, 109 N.E.3d 953

       (Ind. 2018). The General Assembly has defined a failure to provide adequate

       warnings or instructions as follows:


               A product is defective under this article if the seller fails to:


               (1) properly package or label the product to give reasonable
               warnings of danger about the product; or


               (2) give reasonably complete instructions on proper use of the
               product;




       Court of Appeals of Indiana | Memorandum Decision 18A-PL-1450 | September 6, 2019   Page 11 of 15
               when the seller, by exercising reasonable diligence, could have
               made such warnings or instructions available to the user or
               consumer.


       Ind. Code § 34-20-4-2 (1998). The duty to warn has two parts: (1) providing

       adequate instructions for safe use and (2) providing a warning as to dangers

       inherent in improper use. Ford Motor Co. v. Rushford, 868 N.E.2d 806 (Ind.

       2007). Whether a duty to warn exists is a question of law for the court, and

       whether warnings were adequate, “which implicates breach of duty, is generally

       a question for the trier of fact to resolve.” Id. at 810.


[27]   Elliott claims that all three types of defect – defective design, defective

       manufacture, and failure to warn – are at issue here. All three claims are based

       on his argument that he did not damage the bowstring by dry firing the bow or

       by other means and as a result the accident and resulting injury must have been

       caused by the bowstring’s defects. The parties’ dispute hinges upon the

       question of causation. “Proximate cause is also an essential element not only of

       a claim of strict liability, but also a claim sounding in negligence.” U-Haul Int’l.,

       Inc. v. Nulls Mach. & Mfg. Shop, 736 N.E.2d 271, 281 (Ind. Ct. App. 2000), trans.

       denied. When the issue of causation is within the understanding of a lay person,

       testimony of an expert witness is not necessary. Smith v. Beaty, 639 N.E.2d

       1029, 1034 (Ind. Ct. App. 1994). By contrast, if the issue of causation is beyond

       the understanding of a lay person, and the party moving for summary judgment

       designates expert evidence negating that element, the burden shifts to the

       defendant to present evidence to sustain the action. See U-Haul, 736 N.E.2d 271


       Court of Appeals of Indiana | Memorandum Decision 18A-PL-1450 | September 6, 2019   Page 12 of 15
       (plaintiff failed to designate expert evidence to refute expert opinion that a

       defective brake valve did not cause an accident).


[28]   In the current case, First String cited evidence from Scott Parrish, First String’s

       president, in its motion for summary judgment. Parrish explained that he has

       designed and made bowstrings since the 1980s. He further described

       information about the materials that comprised the bowstring at issue and

       explained that the bowstring should have been able to “hold over 1000 pounds

       of tension, roughly 15 times what [it would see] during ordinary use.”

       Appellant’s App. Vol. II, p. 45.


[29]   Parrish also described the process by which First String manufactures

       bowstrings. The process involves wrapping raw fiber materials around

       mandrels, or posts, twisting them together, and applying the “serving,” which is

       an additional string material that is wrapped around the base string material.

       Appellees’ App. Vol. 2, p. 89. First String inspects the raw fiber materials

       before use and follows a quality control process during manufacturing to detect

       defects. During the manufacturing process, bowstrings are “stressed to over 400

       pounds of tension” to check for durability. Appellant’s App. Vol. II, p. 46.


[30]   In addition, Parrish had inspected Elliott’s bow and the broken bowstring, and

       based on his observations and experience, he concluded the bowstring had been

       damaged by a user during a “dry fire event” before the incident that resulted in

       Elliott’s injury. Id. at 46.




       Court of Appeals of Indiana | Memorandum Decision 18A-PL-1450 | September 6, 2019   Page 13 of 15
[31]   First String also presented testimony from engineer George Saunders, who

       inspected the bowstring and bow using a portable digital microscope, a camera,

       and measuring instruments. In addition, Saunders reviewed the documents

       that had been previously filed in the case. Based upon his examination and his

       professional knowledge, he concluded the bowstring had been damaged due to

       a dry fire event prior to Elliott’s injury. Saunders noted: (1) the bow’s cams

       were warped where the bowstring touched them, and (2) upon microscopic

       examination, the broken areas of the bowstring showed signs of melting and

       “re-solicitation” from a “high speed, high energy short duration event” rather

       than cutting. Id. at 52.


[32]   Finally, First String presented an affidavit from Lorne Smith, a hunter safety

       instructor and hunting accident investigator. Smith examined the bow and

       bowstring, and various documents that had been filed in this case. He

       concluded, “[t]he bow string exhibited signs of separation under load conditions

       consistent with the dry fire event.” Id. at 57. Smith further explained the

       damaged string was consistent with “what is seen in a dry fire and reported

       throughout the industry.” Id. Smith further explained that the bow showed

       signs of an “overdraw event,” which can cause a dry fire event. Id. at 59.


[33]   We conclude from the foregoing that whether a bowstring break and a resulting

       injury were caused by a defective product (through defective design,

       manufacture, or failure to warn) versus a dry fire event requires specialized

       knowledge and is beyond the understanding of a lay person. First String

       presented expert evidence from Parrish, Saunders, and Smith to establish that

       Court of Appeals of Indiana | Memorandum Decision 18A-PL-1450 | September 6, 2019   Page 14 of 15
       the incident was caused by a user’s dry fire event rather than defects in design

       or manufacture, or failure to warn. Elliott was obligated to provide expert

       evidence in return, but the trial court barred Carlson from testifying about what

       caused the bowstring to break. As a result, Elliott did not put forth any

       admissible expert witness evidence to establish a dispute of material fact as to

       causation. The trial court did not err in granting summary judgment to First

       String as to Elliott’s product liability claims.


                                                Conclusion
[34]   For the reasons stated above, we affirm the judgment of the trial court.


[35]   Judgment affirmed.


       Riley, J., and Mathias, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 18A-PL-1450 | September 6, 2019   Page 15 of 15
