United States District Court, W.D. Kentucky, Louisville
MEMORANDUM OPINION AND ORDER
DAVID J. HALE, District Judge.
Plaintiff Darcy Yonts injured his hand in an archery accident when an arrow he attempted to shoot broke in two upon release from his compound bow. Yonts alleges a myriad of product liability claims against the manufacturer of that arrow (the "Arrow"), Defendant Easton Technical Products, Inc. ("Easton"). After more than three years of discovery and a series of motions, just two primary causes of action remain: strict liability and negligence, both arising from allegedly inadequate warnings and instructions. Two others, a punitive damages claim and a subrogation claim by an intervening plaintiff, are merely derivative of the primary claims.
Easton has moved for summary judgment on all remaining causes of action. (Docket Number 78-79). In considering the competing arguments, the Court must determine whether the submitted evidence supports an inadequate warning claim under Kentucky's law of negligence or strict liability. The Court concludes that Yonts has failed to present competent evidence to support his inadequate warning claims. Accordingly, the Court will grant Easton's motions and dismiss this case in its entirety.
I. Factual and Procedural Background
In 2009, Yonts bought the Arrow from a friend named Dwayne Wells. The Arrow was used and had long been separated from its original packaging. Much of the Arrow's history is unclear-Wells himself may have actually bought it used from another person. In any event, Wells used the Arrow for hunting and target practice for roughly 18 months. After his purchase, Yonts also became familiar with the Arrow. He used it for target practice roughly three times per month for almost a year before the incident that led to this litigation.
Easton employs several methods to warn and instruct consumers on safe use of arrows. It sells arrows to stores in boxes with written instructions. Because some arrows are sold to customers individually and without written instructions, Easton permanently printed the following message directly on the arrows' carbon shaft: "SEE WARNINGS & USE at www.bsafe.ws or 877-INFO-ETP." The website and phone number provide warnings and instructions regarding the potential for injury from improper use of broken or damaged arrows. They also describe the proper method for inspecting and testing each arrow before each use.
The website contains a "Warnings and use" section that refers to "ARROW BREAKAGE." It provides:
An arrow shaft can become damaged from impacts with hard objects or other arrows, or after being shot into a game animal. A damaged arrow could break upon release and injure you or a bystander. You must carefully inspect each arrow shaft, nock and other components before each shot to see that they have not been damaged. Before shooting, place the arrow between your thumb and fingers, and using your other hand to slowly rotate the shaft, run your fingertips along the entire arrow length, feeling and looking closely for nicks, cracks, splits, dents, or other marks that could indicate the shaft has been damaged. When checking carbon arrows, perform the following additional tests:
1. Grasp the shaft just above the point and below the nock, then flex the arrow in an arc (bending it away from you and others) with a deflection of 1 to 2 inches (2.5 to 5 cm), and listen for cracking noises. Perform this test four to six times, rotating the arrow slightly between each flex until you have gone around the entire arrow. If you hear or feel cracking, the carbon has been damaged.
2. While still holding the point and fletching ends, twist the shaft in both directions. If the arrow "relaxes" or twists easily, the carbon has been damaged.
If an arrow has been damaged, or if you believe it has been damaged, do not shoot it again, as it could break on release, and sharp arrow pieces could hit and injure you or somebody nearby.
(DN 78-6, at PageID # 1228-29).
Yonts saw the text on the Arrow directing users to the website and phone number. When asked in his deposition whether he had seen a warning, he responded "I have noticed that on the arrows." (DN 78-2, at PageID # 1202). When asked whether he saw that warning before the incident, he responded "I did. Because, like I said before, I regularly visually inspected my arrows for damage. So yes." ( Id. at PageID # 1204). Though he saw the message on his arrows, Yonts did not visit the website or call the phone number. Without seeing those warnings or instructions, Yonts relied on his own regular "visual inspections" of the arrows and did not perform the recommended tests.
While shooting targets in August 2010 with his compound bow and carbon arrows, Yonts grabbed the Arrow. He may have visually inspected it but did not perform Easton's recommended tests (feeling, flexing, rotating, and twisting) to determine whether the Arrow was damaged. He loaded, aimed, and released. The Arrow's carbon shaft broke in two. The back half of the Arrow-the part with the fletching-shot into the dorsal web space of Yonts's left hand. As a result, Yonts was injured, incurred significant medical bills, missed work, and initiated this lawsuit.
Through the testimony of his sole expert, Dr. Carol Pollack-Nelson, Yonts argues that Easton's arrows are unreasonably dangerous for sale because they contain an inadequate warning of their hazards. Easton replies that Dr. Pollack-Nelson's testimony is inadmissible under Federal Rule ...