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Boland v. Kawasaki Motors Manufacturing

January 07, 2000


Appeal from Circuit Court of Vermilion County No. 94L96 Honorable Thomas J. Fahey, Judge Presiding.

The opinion of the court was delivered by: Presiding Justice Cook

On June 19, 1992, Eric J. Vandiver was injured while riding a 1989 Kawasaki KLF 220A2 Bayou four-wheel all-terrain vehicle (Kawasaki ATV). The accident occurred at an abandoned strip mine adjacent to Sparkling Springs Camp Ground near Danville, Illinois, where Vandiver worked as a maintenance man and security guard. There were no witnesses to the accident; however, it appears that Vandiver overturned the Kawasaki ATV while attempting to ascend a steep incline as he was exiting one of the strip mine pits.

Vandiver suffered a vertabrae injury leaving him paralyzed from the shoulders down. He died approximately one month later. Charles Boland, Vandiver's uncle, brought this products liability suit against Kaw Town Kawasaki Sales and Service, Inc., Kawasaki Heavy Industries, Ltd., and Kawasaki Motors Manufacturing Corp., USA (defendants). Plaintiff settled with Kaw Town Kawasaki Sales and Service, Inc., and the matter proceeded to jury trial against the remaining defendants.

After a three-week trial, the jury found in favor of defendants. Plaintiff filed a motion for a new trial or judgment n.o.v., which was denied. This appeal followed. Plaintiff seeks reversal of the jury verdict and requests a new trial, claiming that the circuit court erred by (1) permitting defendants' expert witnesses to testify comparing the Kawasaki ATV with other ATVs despite the fact that the opinions were not disclosed in discovery, and (2) instructing the jury on the issue of assumption of risk. We find that the circuit court's decisions regarding these issues were within its sound discretion and we affirm.


On the morning of the accident, one of Vandiver's co-workers, James Biggerstaff, brought the Kawasaki to Sparkling Springs so he could ride in the vicinity of the abandoned strip mines. Vandiver arrived early for his shift which began at 3:30 p.m. Since he had extra time before starting work, Vandiver asked Biggerstaff if he could ride the Kawasaki ATV. Vandiver told Biggerstaff that he had never ridden a Kawasaki ATV but had ridden dirt bike motorcycles. Biggerstaff showed Vandiver how to operate the reverse (a function different from a dirt bike) and cautioned Vandiver to "take it easy" until he got the feel for the Kawasaki ATV.

As the start time for Vandiver's work shift approached, Biggerstaff became concerned because he had not seen Vandiver since his departure on the Kawasaki ATV. Biggerstaff eventually found Vandiver lying at the bottom of a strip mine pit. Vandiver, still conscious, informed Biggerstaff that he could no longer move his arms and legs. Vandiver's only communication with Biggerstaff regarding the accident was that "it came over on me."

Plaintiff's complaint alleged that the Kawasaki ATV was defectively designed and unreasonably dangerous because (a) the design allows it to become unstable and to roll over backward while ascending hills, (b) Kawasaki failed to warn riders of the danger of overturning when being operated on a hill, and (c) Kawasaki failed to warn or notify riders of the rider-active design of the ATV, i.e., the need to adjust one's weight on the vehicle to prevent rollovers.

A. Expert Testimony for Plaintiff and Defense

As is common with products liability litigation, the parties relied heavily on expert opinions to support their respective positions. Plaintiff's engineering expert was H. Boulter Kelsey. Plaintiff also called Stuart Statler, a former commissioner for the Consumer Products Safety Commission (CPSC) to testify that the Kawasaki ATV and all ATVs are imminently hazardous products. Defendants called Ron Robbins and Kevin Breen to support their defense, impeach plaintiff's experts and rebut the opinions that the Kawasaki ATV was unreasonably dangerous. The deposition testimony and trial testimony of these expert witnesses is central to the resolution of this case.

B. Plaintiff's Expert, H. Boulter Kelsey

The controversy at issue in this appeal originates with Kelsey's testimony, which led to the comparison testimony that plaintiff now claims was error.

Defendants deposed Kelsey twice during the discovery phase of the case. Prior to his first deposition, Kawasaki learned that Kelsey had been retained as a consultant by Artco, a domestic ATV manufacturer that produces a line of ATVs called Arctic Cats. Defendants questioned Kelsey about his consulting activities and whether he had formed the opinion that the Arctic Cat ATVs were dynamically stable. Kelsey refused to divulge this information, claiming it to be proprietary in nature.

Kelsey did testify at his deposition that he had not found an ATV that was reasonably safe and it was possible that he would find all ATVs defective and unreasonably dangerous. Defendants filed a motion in limine seeking to preclude any testimony of Kelsey's consulting activities because of his refusal to provide Kawasaki with that ...

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