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STATE OF RHODE ISLAND AND PROVIDENCE PLANTATIONS PROVIDENCE, SC. (Filed: September 19, 2012) SUPERIOR COURT

ELLEN MARTEL, JOSEPH MARTEL, JOSEPH MARTEL, IV and JOAN MARTEL v.

ARCTIC CAT SALES, INC., ARCTIC CAT, INC., and WHEELS OF FREEDOM, INC.

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C.A. No. PC 07-3947

DECISION MCGUIRL, J. Before this Court is Plaintiffs` Ellen Martel, Joseph Martel, Joseph Martel, IV and Joan Martel (collectively, Plaintiffs) Motion for a New Trial pursuant to Super. R. Civ. P. 59. The action involves Plaintiffs` product liability claim against Defendants Arctic Cat Sales, Inc., Arctic Cat, Inc. (Defendant AC), and Wheels of Freedom, Inc. (Defendant WOF) (collectively, Defendants). The case was tried before a jury, and a verdict was entered in favor of the Defendants. Plaintiffs timely challenged the jury`s findings. Defendants have objected to the Plaintiffs` Motion. I FACTS AND TRAVEL Although the details of this trial need not be extensively reiterated, some, of course, are pertinent with respect to the within motion. The facts, as presented by the Plaintiffs, follow.

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On or about November 25, 2003, Joseph Martel (Joe), purchased a 2004 Arctic Cat All-Terrain vehicle (ATV) sold by Defendant WOF and manufactured by Defendant AC. On August 14, 2004, Plaintiff Ellen Martel (Mrs. Martel) was operating the ATV. She allegedly drove on fairly flat, hard packed dirt with minor rocks at approximately 10 to 15 miles per hour. Mrs. Martel completed one counterclockwise circle of approximately 300 to 400 feet in diameter, and she was starting her second circle when the handlebars jerked to the left, the front end went down, and she and the ATV flipped diagonally forward, causing Mrs. Martel injuries. After the accident, the ATV lay upside down, and Mrs. Martel lay on her back nearby. When the Plaintiffs purchased the ATV, it had thirteen miles on the odometer. At the time of the August 14, 2004 accident (hereinafter accident), the odometer read 134 miles. The Plaintiffs explained that from November 20, 2003 to February 2004, Plaintiff Joseph Martel operated the ATV only once. From February 2004 through August 14, 2004, he operated the ATV frequently in the field across the street, from where the accident occurred. He also had driven the ATV in his backyard, on trails in the woods, and around a mud pond behind his backyard. The Plaintiffs further alleged that Joe`s brother, Jeff Martel (Jeff), operated the ATV once or twice in the field across the street, as well as in Joe`s backyard. Furthermore, Mrs. Martel drove the ATV on two occasions: the morning of the accident in the Plaintiffs` front yard and in the field across the street at the time of the accident. The Plaintiffs alleged that the ATV has never been in an accident from the date of the purchase to the date of the accident. The Plaintiffs also maintain that the ATV has never been repaired nor had maintenance performed on it prior to the accident. The Plaintiffs further contend that at no time on the day of the accident or prior thereto did either of them experience any difficulties, whatsoever, with the operation or the steering of the ATV. The Plaintiffs

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explained that the ATV has never been brought back to Defendant WOF for service, repairs, maintenance, etc. The Plaintiffs claim that the only modifications made to the ATV were on November 25, 2003, when they purchased a safety flag, hand protectors, and a winch. The Plaintiffs presented Dr. Marc Richman (Dr. Richman), who gave expert testimony regarding the issue of liability. According to Dr. Richman, the robotic welding procedure used by Defendant AC to weld the suspension arm was defective because it was done in ninety degree quadrants, which resulted in two stop/start positions at each quadrant. Dr. Richman opined that repetitive heating resulted in the softening or weakening of the left lower support arm, and the weakening resulted in the support arm failing in a ductile manner. The failure of the support arm subsequently caused the left front wheel to turn outward at such an angle that the wheel acted as a pivot, causing the RTV to flip, throwing Mrs. Martel to the ground. Furthermore, Dr. Richman explained that according to AC`s own welding procedure, as set forth in the information provided in discovery, in the event that the robotic weld failed, it was then hand welded. The Plaintiffs alleged that evidence of hand-welding was apparent on the micrograph section of the lower arm, which showed three weld passes. In contrast, Defendants` expert, Herman Bud Christopherson (Mr. Christopherson)-- the leader of Defendant AC`s ATV development team, and an expert in design, safety, and accident reconstruction--opined that a prior accident caused a substantial modification of the strength of the suspension and the steerability. He concluded that the ATV was not defectively designed or manufactured and was not the cause of the accident. Mr. Christopherson further opined that an improper repair and improper use of the ATV were the cause of the accident. In December 2010, by agreement of the parties, additional testing was performed on the support bracket. A micrograph section was obtained from the section of the support bracket that

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Defendant AC claims has been heated with a blow torch. Microscopic examination of that section revealed no grain growth existence. According to Dr. Richman, in order for the bracket to be straightened, as Defendant AC suggested, it would have to have been heated sufficiently--for approximately an hour--in order for the metal to have been weakened, causing grain growth to occur. However, there was no grain growth present. Thus, Dr. Richman concluded that there was no heating of the bracket, and therefore, there could not have been a straightening. Mr. Christopherson examined, modified, and tested an exemplar ATV. He also examined the accident site, the Martels` ATV, and the damaged parts. In an expert report from July 22, 2009, Mr. Christopherson explained that the visible damage was mainly in the steering bar area, the seat back area, the right rear rack and fender area, and in the left front wheel suspension and steering area. He further explained that the lower left A-arm was broken in two places and buckled near the outer wheel hub area, and that the ball joint was pushed rearwards by approximately three inches. Furthermore, he noted that the left front wheel was dented on the tire contact area. The welded frame upper A-arm left bracket, according to Mr. Christopherson, was rusted, distorted, twisted, and cracked. Mr. Christopherson opined that damage had occurred prior to the accident of August 14, 2004. He based his opinion on the fact that the upper left side A-arm was distorted, bent, and cracked. It was discolored, in his opinion, due to being heated in order to be straightened or in an attempt to relocate the mountain hole. Moreover, the paint was burned off the bracket, and the bushing for the A-arm pivot bolt was partly melted. Mr. Christopherson further noted that the front tube of the lower A-arm was damaged near the outer end. The rear tube of the lower Aarm was buckled and broken. He also opined that in order for the bracket to be damaged as it

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was, the A-arm suspension would also have to be damaged. He explained that the damage to the bracket was such that it could not have happened during the August 14, 2004 accident. Mr. Christopherson clarified that [t]he modification to the suspension and steering geometry would effect [sic] the combination of toe-in, camber and caster so that the handling and control would act unpredictable and cause a sudden turn and loss of stability. (Expert Report, Christopherson, July 22, 2009 at 3.) Mr. Christopherson explained that [t]he A-arm bracket on the subject [ATV] can withstand a horizontal frontal load at the wheel of more than 4400 pounds of force. A force of this magnitude is over 6G and is beyond what a human rider driver can sustain. The lower A-arm can withstand a horizontal frontal load at the wheel of more than 15000 pounds. . . . Id. at 4. Furthermore, he stated that the bracket and the lower A-arm can be damaged if the A-arm strikes a rigid object. He continued that the force required to deform the welded bracket is less than the force required to damage or deform the lower A-arm if they each are deformed independently; however, here the application of force cannot be applied to the bracket alone but must be applied from the loading of the A-arm. According to Mr. Christopherson, for the bracket to deform, the A-arm must be loaded to exceed the A-arm strength and yield to the damaged position, and then the bracket will deform. The yielding of the A-arm will move the caster from positive to negative. Another expert for the Defendants, Dr. Simon Bellemare (Bellemare), similarly opined that the Plaintiffs` ATV was in an accident prior to the one of August 14, 2004, and that an attempt to repair it caused the accident of August 14, 2004. He explained that the blistered paint and deteriorated bushing evidenced some application of heat, which was evidence of a prior attempt to repair. Dr. Bellemare has a Bachelor`s and Master`s degree in Metallurgy. He was retained to review the design process for the ATV and perform an analysis of the strength and the

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load applied on the frame during service. He testified generally as to the concept of heat affected zone and of Microhardness tests. Furthermore, Dr. Bellemare clarified that

Microhardness testing was done at Thielsch Engineering Lab where Dr. Richman, Dr. Eagar, Dr. Bellemare, and the attorneys for both sides were present. The result of the Microhardness test is a hardness reading which is directly related to the strength of the tube. The result is transformed into numbers called Vickers. Tests were done on the Martels` actual ATV and compared to tests performed on an exemplar. Dr. Bellemare explained that the metal in the heat affected zone was lower in hardness than it was in the weld metal itself. However, the results show that the lowest point of hardness of the metal of the heat affected zone, either in the exemplar or in the actual ATV, was still higher than the minimum required by AC and manufactured in this process. Dr. Bellemare concluded that the heat affected zone had nothing to do with the cause of the breaking of the front lower A-arm front tube of the ATV, and that the steel used in the ATV conformed to Defendant AC`s purchase order. Dr. Bellemare also described his observations of the Martels` ATV. He testified that the upper bracket was bent and rusted. He explained that from a closer look of the upper bracket, he was able to see with a naked eye that the paint was blistering and the bushing was melted. Dr. Bellemare further pointed out that there were wrinkles on the flanges which were indicative of the upper bracket being bent. Both flanges were not straight; they were bowed. Dr. Bellemare concluded that the shrinkage in the diameter of the bushing next to the upper bracket is evidence of an application of external heat to the bracket. His conclusion was further supported by the melting and shrinkage of the bracket and the blistering of the paint. By comparing the measures of the bushings from both sides, he established that there was significant reduction in the diameter.

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Dr. Bellemare also testified that the Martels` ATV did not display any signs of grain growth. Consistent with Dr. Richman`s testimony, Dr. Bellemare explained that in order to exhibit grain growth, the metal has to be heated by a blowtorch for a considerable amount of time (about an hour). However, he also testified that grain growth does not always occur when heat is applied. The Plaintiffs` attorney objected to Dr. Bellemare`s testimony because Dr. Bellemare never indicated in his report his opinion regarding grain growth. II STANDARD OF REVIEW The role of a trial justice in deciding whether to grant a motion for a new trial is well settled in Rhode Island. When ruling on a motion for a new trial, a trial justice sits as the super [] juror and is required to independently weigh, evaluate, and assess the credibility of the trial witnesses and evidence. Marocco v. Piccardi, 713 A.2d 250, 253 (R.I. 1998). [T]he trial justice must (1) consider the evidence in light of the jury charge, (2) independently assess the credibility of the witnesses and the weight of the evidence, and then (3) determine whether he or she would have reached a result different from that reached by the jury. State v. Ferreira, 21 A.3d 355, 364 (R.I. 2011) (citing State v. Prout, 996 A.2d 641, 645 (R.I. 2010) (citation omitted)). The burden of proving the grounds for a new trial is always upon the applicant. See United States v. Reese, 561 F.2d 894, 902 (D.C. Cir. 1977). In conducting his or her

independent analysis of the evidence, the judge may accept some or all of the evidence and may reject testimony if it is impeached or contradicted by other testimony or circumstantial evidence, or if the judge finds it is inherently improbable or inconsonant with undisputed physical facts or laws. Barbato v. Epstein, 97 R.I. 191, 193, 196 A.2d 836, 837 (1964). In addition, the trial

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judge may add to the evidence by drawing proper and consistent inferences. Id. at 193-194, 196 A.2d at 837. [T]he trial justice need not perform an exhaustive analysis of the evidence[.] Reccko v. Criss Cadillac Co., Inc., 610 A.2d 542, 545 (R.I. 1992) (citing Zarrella v. Robinson, 460 A.2d 415, 418 (R.I. 1983)). He or she, however, should refer with some specificity to the facts which prompted him or her to make the decision so that the reviewing court can determine whether error was committed. Id. The trial justice must deny the motion for a new trial [i]f the trial justice agrees with the jury`s verdict or if the evidence is such that reasonable minds could differ as to the outcome.` Ferreira, 21 A.3d at 364-65. However, if the trial justice does not agree with the jury`s verdict, he or she must embark on a fourth analytical step. Id. at 365 (citing State v. Guerra, 12 A.3d 759, 765 (R.I. 2011)). This step requires the trial justice to determine whether the verdict is against the fair preponderance of the evidence and fails to do substantial justice. Id. at 364 (citing Guerra, 12 A.3d at 765

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