author: KONENKAMP, Justice. SABERS, Justice MEIERHENRY, Justice

text:
    2007 SD 82
    Kylie BURLEY, Plaintiff and Appellant, v. KYTEC INNOVATIVE SPORTS EQUIPMENT, INC., Defendant and Appellee. and West Central School District, Third Party Defendant.
    No. 24132.
    Supreme Court of South Dakota.
    Argued Nov. 29, 2006.
    Decided Aug. 1, 2007.

      Gary J. Pashby, Michael F. Tobin of Boyce, Greenfield, Pashby, & Welk, LLP, Sioux Falls, South Dakota, Attorneys for plaintiff.
    Mark J. Arndt, Scott R. Swier of May <& Johnson, PC, Sioux Falls, South Dakota, Attorneys for defendant and appellee.
   KONENKAMP, Justice.

[¶ 1.] Plaintiff was injured when a sports product manufactured by defendant malfunctioned and struck her arm. She brought suit against defendant alleging negligence, strict liability (defective design), and strict liability (failure to warn). Defendant moved for summary judgment on all claims and also sought to prohibit the testimony of her proposed expert witness. On finding that plaintiffs expert was not qualified to testify that the instructions provided with defendant’s product were inadequate, the circuit court excluded the testimony. The court then granted defendant’s motion for summary judgment, ruling that, without expert testimony, plaintiff had insufficient evidence to meet her burden of proof on all her claims. On appeal, we conclude that because the circuit court set the bar too high in determining the admissibility of the expert’s opinion, it should not have been excluded, and thus plaintiffs failure to warn claims may be able to proceed. We affirm in part, reverse in part, and remand.

I.

[¶ 2.] On April 12, 2001, Kylie Burley, a high school athlete, was injured in her school hallway while using a training device her coaches provided. It is called the Overspeed Trainer, manufactured and sold by Kytec Innovative Sports Equipment, Inc. The purpose of the Overspeed Trainer is to help improve a runner’s speed. The device can be used for either resistance or speed training. It requires two athletes to use, one, called the pacer, and the other, the sprinter. The sprinter wears a belt with a single release hook, and the pacer wears a belt equipped with a single swivel hook. A cord connects the two runners. The cord is tied to a post or other anchor. It is then extended through a pulley on the back of the belt worn by the pacer through to the rope end ring, which is attached to a release hook on the belt worn by the sprinter. The cord has a Velcro connection, termed a “ripcord,” which, according to the provided instructions, “will break loose and release the [sjprinter if the pull becomes too greatf.]”

[¶ 3.] After the cord and belts are in place, the pacer and the sprinter begin to run in the same direction, in either the same lane or two separate lanes, but the pacer is ahead of the sprinter. The pacer is to run faster than the sprinter, in effect pulling the sprinter to keep up and thereby increasing the sprinter’s speed. According to the instructions, “[t]he rope will automatically release from the Sprinter when the Pacer slows down or reaches the stopper ring (located 5 meters from the end ring; You’ll see how it works when you walk through it the first time.).” Also, the instructions indicate that the sprinter can release herself “with a quick chop downward to the tow line.”

[¶ 4.] Burley was using the Overspeed Trainer under the direction of her West Central High School track coach, Darrell Horacek. Horacek and assistant track coach, Denise Kennedy, introduced the brand new Overspeed Trainer for the first time the day Burley was injured. Before letting the students use the device, Hora-cek and Kennedy read the product’s instructions and attempted to assemble it. Horacek found that the instructions were of no help. However, because Kennedy had experience using a similar device while on the University of South Dakota’s track team, and Horacek had used one during a training weekend at the University, the two attempted to prepare the Overspeed Trainer for the students’ use. After Hora-cek assembled it, he attempted to use it to see if it would release as the instructions indicated. He noticed that the hook on the sprinter’s belt would rotate downward, thereby “making it virtually impossible for a ‘downward chop’ to release the hook and ring.” Because the downward chop was a means of releasing the sprinter from the pacer’s pull, Horacek decided to bend the hook just enough to make it easier for the ring to release. He bent the hook by using pliers and then tried using the device again. This time he believed that the hook and ring released appropriately after he applied the downward chop. He offered the Overspeed Trainer for use to both the girls’ and boys’ track teams.

[¶ 5.] After the boys used it, Burley was one of the first girls to try the device. Details of the accident are not entirely clear from the record. Burley recalled that she was injured when her arm was struck from behind by the ring that was supposed to be attached to the sprinter’s belt. Horacek believed that the ring broke free, recoiled, and then hit Burley. The impact of the ring fractured the ulna bone in her left arm, requiring surgery and the implantation of a metal plate with screws.

[¶ 6.] Burley brought suit against Ky-tec, alleging that the company was negligent in its warnings, design, and construction of the Overspeed Trainer. She also alleged that because of the defective design and failure to warn, Kytec was strictly hable for her injuries. Kytec brought a third-party complaint against West Central School District for indemnity and contribution. Dr. Jan Berkhout of the University of South Dakota was retained as an expert solely for Burley’s failure to warn claims. Burley sought to offer an opinion from Dr. Berkhout that the instructions included with the Overspeed Trainer were “seriously deficient.” Kytec moved to exclude this expert testimony and also sought summary judgment on all claims.

[¶ 7.] According to Kytec, Dr. Berkh-out lacked the knowledge, skill, experience, training, or education necessary to render an expert opinion in this case. See SDCL 19-15-2 (Rule 702). In its memorandum decision, the circuit court concluded that Dr. Berkhout’s proposed testimony would provide “the trier of fact with relevant evidence that would assist them in determining whether the instructions [were] deficient.” However, the court found that Dr. Berkhout was not qualified to offer an expert opinion about whether the instructions accompanying the Overspeed Trainer were inadequate or improper.

[¶ 8.] Dr. Berkhout is a professor of Psychology and the Director of the Heims-tra Human Factors Laboratory at the University of South Dakota. He has a degree in physiology and biopsychology from the University of Chicago, obtained in 1962, and since 1993 is certified as a professional ergonomist by the Board of Certification of Professional Ergonomists. Nonetheless, the circuit court concluded that “Dr. Berkhout has not received any specified training or education related to product instruction,” does not have “expertise on questions of display, syntax and emphasis[,]” and has no “personal experience writing or evaluating warning labels for athletic equipment.” Accordingly, the court granted Kytec’s motion to exclude Dr. Berkhout’s testimony.

[¶ 9.] The court then addressed Kytec’s motion for summary judgment. In her complaint, Burley alleged that Kytec “negligently designed and manufactured the Overspeed Trainer.” But she offered no expert testimony to assist the trier of fact in determining whether the product was defectively manufactured or designed or whether the actions of Kytec in designing and manufacturing the product were reasonable under the circumstances. The court held that for this claim expert testimony was necessary.

[¶ 10.] As to Burley’s claim alleging that Kytec was strictly liable for her injuries because the device “was in a defective condition and was unreasonably dangerous,” the court similarly concluded that expert testimony was necessary. In the court’s words, “it cannot be said that common experience tells us that Burley’s injuries could not have occurred absent a defect in the Overspeed Trainer, and Burley has failed to negate other causes of her injuries, namely user error or product modification.”

[¶ 11.] Finally, the court examined Burley’s last claim that Kytec was hable for its failure to provide adequate warnings of the dangers of the Overspeed Trainer. Because the court had excluded Dr. Berkhout’s testimony, the question became whether she could proceed without expert opinion. After identifying the elements necessary for her to prevail on the claims for inadequate warnings, the court held that “Burley has not presented this court with any evidence indicating that it would be able to meet its burden with respect to all those elements.” Thus, all her negligence and strict liability claims were dismissed. Burley appeals.

II.

[¶ 12.] We review a circuit court’s decision to admit or deny an expert’s testimony under the abuse of discretion standard. State v. Guthrie, 2001 SD 61, ¶ 30, 627 N.W.2d 401, 414-15 (internal citations omitted); see also State v. Edelman, 1999 SD 52, ¶4, 593 N.W.2d 419, 421 (citing State v. Bachman, 446 N.W.2d 271, 275 (S.D.1989)); Zens v. Harrison, 538 N.W.2d 794, 795 (S.D.1995) (citations omitted); State v. Logue, 372 N.W.2d 151, 156 (S.D.1985) (citations omitted). “Although we have repeatedly invoked stock definitions, the term ‘abuse of discretion’ defies an easy description. It is a fundamental error of judgment, a choice outside the range of permissible choices, a decision, which, on full consideration, is arbitrary or unreasonable.” Arneson v. Arneson, 2003 SD 125, ¶ 14, 670 N.W.2d 904, 910 (citation omitted.).

[¶ 13.] Admissibility of expert testimony is governed by SDCL 19-15-2 (Rule 702). Under this rule, before a witness can testify as an expert, that witness must be “qualified.” Id. Furthermore, “[u]nder Daubert, the proponent offering expert testimony must show that the expert’s theory or method qualifies as scientific, technical, or specialized knowledge” as required under Rule 702. Guthrie, 2001 SD 61, ¶ 34, 627 N.W.2d at 415-16; Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 597, 113 S.Ct. 2786, 2799, 125 L.Ed.2d 469 (1993). Before admitting expert testimony, a court must first determine that such qualified testimony is relevant and based on a reliable foundation. Guthrie, 2001 SD 61, ¶ 32, 627 N.W.2d at 415. The burden of demonstrating that the testimony is competent, relevant, and reliable rests with the proponent of the testimony. SDCL 19-9-7 (Rule 104(a)). The proponent of the expert testimony must prove its admissibility by a preponderance of the evidence. Daubert, 509 U.S. at 592 n. 10, 113 S.Ct. at 2796 n. 10, 125 L.Ed.2d 469 n. 10. “Relevance embraces ‘evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.’” Guthrie, 2001 SD 61, ¶32, 627 N.W.2d at 415 (quoting SDCL 19-12-1).

[¶ 14.] In this case, Burley offered Dr. Berkhout as an expert only on her claims pertaining to warnings and instructions. The circuit court found that Dr. Berkhout’s proposed testimony was relevant under Daubert, as it “would assist [the trier of fact] in determining whether the instructions are deficient.” However, it determined under Rule 702 that he was “not qualified to offer expert testimony in this case” even though he has “impressive credentials and expertise in a variety of areas[.]” Specifically, the court reasoned:

Dr. Berkhout testified that he has never been previously retained as an expert witness for inadequate warnings or improper instructions.... Dr. Berkhout was unfamiliar with the American National Standards Institute (ANSI), and therefore unfamiliar with the ANSI guidelines for warnings.... Dr. Berkh-out has not received any specified training or education related to product instructions, and while formalized training is not a prerequisite for admission under SDCL 19-15-2 [ (Rule 702) ], Burley has not demonstrated that Dr. Berkhout is qualified experientially. Dr. Berkhout has never personally drafted warnings or instructions for any device[,] much less a devise similar to the Overspeed Trainer.

Further, the court stated that “relevant case law emphasizes that a warnings expert should demonstrate expertise in the specific field in question” and “Dr. Berkh-out testified that he does not have any particular expertise in athletic training products, in the training of track athletes, or the training of athletes of any kind.”

[¶ 15.] According to Burley, on the other hand, Dr. Berkhout is more than qualified to render an expert opinion that the instructions for the Overspeed Trainer were deficient. In particular, she contends that Dr. Berkhout, as a certified ergonomist, studies “the interface and relationship between products and the users of such products,” and “warnings and instructions that accompany such a product are integral to the endeavor.” Moreover, she avers that he “teaches graduate and doctoral level classes at the University of South Dakota specifically on instructions and warnings.” Burley believes that the circuit court “wrongly focused on the athletic nature and purpose of the equipment, and wrongly required that Dr. Berkhout have some level of expertise in the realm of athletic equipment and with athletics in general.” Instead, she contends that Dr. Berkhout’s experience with athletics or athletic training should go more to the weight of his opinion, rather than to its admissibility.

[¶ 16.] A trial court is responsible for deciding whether an expert’s knowledge will “assist the trier of fact to understand the evidence or to determine a fact in issue,” under Rule 702. SDCL 19-15-2; see also Wheeling Pittsburgh Steel Corp. v. Beelman River Terminals, Inc., 254 F.3d 706, 715 (8th Cir.2001) (citing Kumho Tire Co., Ltd. v. Carmichael, 526 U.S. 137, 156, 119 S.Ct. 1167, 1178, 143 L.Ed.2d 238 (1999)). And that responsibility includes determining “whether a particular expert has sufficient specialized knowledge to assist jurors in deciding the specific issues in the case.” Wheeling Pittsburgh Steel Corp., 254 F.3d at 715 (citation omitted).

[¶ 17.] In examining the circuit court’s decision on Dr. Berkhout’s qualifications, we find several problems in the court’s analysis. To conclude, as the court did, that because Dr. Berkhout had “never been previously retained as an expert witness for inadequate warnings or improper instructions,” he was therefore not qualified to testify means that no one could qualify as an expert for the first time in our courts without having first qualified somewhere else. Mere experience as a practiced litigation witness is a poor touchstone for measuring genuine expert qualifications. See First Western Bank Wall v. Olsen, 2001 SD 16, ¶9, 621 N.W.2d 611, 615-16 (expert’s qualifications should not be examined under a “restricted focus”).

[¶ 18.] A questionable inference can also be seen in the circuit court’s statement that “Dr. Berkhout was unfamiliar with the American National Standards Institute (ANSI), and therefore unfamiliar with the ANSI guidelines for warnings.” Although this may perhaps demonstrate limitations in his general knowledge of the field, neither the court nor counsel for Kytec cited a single ANSI standard that might conceivably apply in this case. How can an expert witness be disqualified for being unfamiliar with standards not shown to be relevant?

[¶ 19.] Another reason cited by the circuit court in finding Dr. Berkhout less than qualified was the fact that he “has not received any specified training or education related to product instructions^]” However, Dr. Berkhout has himself taught graduate level courses dealing with instructions and warnings. These include a course on the psychology of safety, with planning for warnings and instructions, and a course covering the comprehensibility and readability of instructions, labels, and signs. Reading, study, and practice can be a source of education and knowledge sufficient to qualify a person as an expert. See John W. Strong, McCormick on Evidence, § 13, 24 (5th ed. 1999).

[¶20.] Despite what the circuit court conceded were “impressive credentials and expertise in a variety of areas,” Dr. Berkh-out was found “not qualified to offer expert testimony in this case.” The court relied on Robertson v. Norton Co., 148 F.3d 905, 907 (8th Cir.1998), a case in which an expert “was undoubtedly qualified to testify about a manufacturing defect in an exploding ceramic grinding wheel,” but was deemed not qualified to testify on grinding wheel warnings. The court ruled that the expert’s “knowledge of ceramics would not provide the expertise on ‘questions of display, syntax, and emphasis’ that the jury would expect from a bona fide warnings expert.” Id. There, the expert’s “formal education in warnings consisted of a college entry-level psychology course.” Id. at 907 n. 1. And his only “relevant qualifications were past membership in the Human Factors Society and limited experience looking at literature and drafting warnings for a coal gasification facility.” Id. As in our case, the expert was also unfamiliar with the ANSI guidelines.

[¶ 21.] In contrast, Dr. Berkhout has had considerable experience in the evaluation of instructions and warnings. He published articles on the uses of computer assisted instruction in developing psycho-motor skills related to heavy machinery operation; computer assisted instruction in applying psychomotor skill development; and the development of flight control skills in children. He has worked with companies in developing techniques for comparing the effectiveness of various vehicle signal and warning systems and the study and review of highway signage. He has also acted as a consultant in litigation on warnings and instructions on a tire and tire mounting machinery. He has supervised several doctoral dissertations on such subjects as evaluating operating manuals for snowplows and dump trucks, food nutrition labels, and the effect of instruction sets on performance on simulated navy ship operating systems. Apropos to this case, he is presently overseeing and directing a research project on manufacturer instructions for assembling and safely using tree stands for hunting. Under this study, three test groups of subjects are given different assembly instructions and monitored to measure which instructions provide improved assembly time and quality. These qualifications plainly differ with the deficiencies the court found in Robertson.

[¶22.] Another case the circuit court found persuasive was Pearson v. Young, an unreported federal district court decision, found at 2002 WL 32026157 (W.D.Okla.). There, the expert offering opinion testimony on the adequacy of a warning for a forklift was a registered professional engineer, with a Bachelor of Science degree in Mechanical Engineering and a Master of Science in Management. Id. His only exposure to the subject of product warnings was his own attempt to draft a proposed warning for the product in the same litigation he was called to testify in. Id. Unlike Dr. Berkhout, he had done no testing and had never spoken to the individuals involved in the accident. See id. Here, Dr. Berkhout reviewed the depositions of Burley and Coach Horacek and then tested the Overspeed Trainer using Kytec’s instructions.

[¶23.] It is true, as the circuit court pointed out, Dr. Berkhout had no experience in drafting or evaluating instructions and warnings for sports equipment. However, we believe a person with his credentials and experience in the field of product instructions and warnings had the qualifications to render opinions beyond the narrow scope of sports equipment. Even with the considerable deference the abuse of discretion standard requires, on full consideration of the record, excluding Dr. Berkhout’s testimony was an abuse of discretion. The circuit court set the bar too high.

[¶ 24.] “ ‘We interpret our rules of evidence liberally with the “general approach of relaxing the traditional barriers to “opinion” testimony.” ’ ” Guthrie, 2001 SD 61, ¶ 36, 627 N.W.2d at 416 (quoting Daubert, 509 U.S. at 588, 113 S.Ct. at 2794, 125 L.Ed.2d 469 (citations omitted)). See also SDCL 19-9-2 (Rule 102). A party who offers expert testimony is not required to prove to a judge in a Daubert hearing that the expert’s opinion is correct: all that must be shown is that expert’s testimony rests upon “good grounds, based on what is known.” Daubert, 509 U.S. at 590, 113 S.Ct. at 2795, 125 L.Ed.2d 469 (internal quotation marks omitted). Any other deficiencies in an expert’s opinion or qualifications can be tested through the adversary process at trial. Accordingly, we reverse the circuit court’s decision to exclude Dr. Berkhout’s opinion testimony based on his qualifications.

[¶ 25.] The purpose of a Dau-bert hearing is to determine whether the offered “expert testimony both rests on a reliable foundation and is relevant to the task at hand.” Daubert, 509 U.S. at 597, 113 S.Ct. at 2799, 125 L.Ed.2d 469. Although the circuit court ruled that Dr. Berkhout’s opinion passed Daubert’s relevancy prong, and we now set aside its ruling on his qualifications, the court never reached Daubert’s reliability prong. Daubert sets out a number of nonexclusive factors for determining whether scientific evidence is reliable. 509 U.S. at 592-95, 113 S.Ct. at 2796-98, 125 L.Ed.2d 469. A court has “ ‘considerable leeway’ in deciding in each case ‘how to go about determining whether particular expert testimony is reliable.’ ” Wells v. Howe Heating & Plumbing, Inc., 2004 SD 37, ¶ 16, 677 N.W.2d 586, 592 (quoting Kumho, 526 U.S. at 152, 119 S.Ct. at 1176, 143 L.Ed.2d 238). “[N]o single factor disposes of a reliability inquiry.” See Daubert, 509 U.S. at 592-95, 113 S.Ct. at 2796-98, 125 L.Ed.2d 469. Daubert’s criteria are flexible guidelines that cannot be applied identically over a broad spectrum of disciplines. Indeed, “ ‘the measure of intellectual rigor will vary by the field of expertise and the way of demonstrating expertise will also vary.’ ” United States v. Conn, 297 F.3d 548, 556 (7th Cir.2002), cert. denied, 538 U.S. 969, 123 S.Ct. 1767, 155 L.Ed.2d 526 (2003) (quoting Tyus v. Urban Search Mgmt., 102 F.3d 256, 263 (7th Cir.1996), cert. denied, 520 U.S. 1251, 117 S.Ct. 2409, 138 L.Ed.2d 175 (1997)). We remand to the circuit court to examine and rule on the reliability question.

III.

[¶ 26.] We next consider whether the circuit court properly granted summary judgment on all of Burley’s claims. In reviewing whether summary judgment was properly granted, “we decide only whether there were genuine issues of material fact and whether the law was correctly applied.” Toben v. Jeske, 2006 SD 57, ¶ 9, 718 N.W.2d 32, 35 (quoting Heib v. Lehrkamp, 2005 SD 98, ¶ 19, 704 N.W.2d 875, 882 (citing SDCL 15-6-56(c); Keystone Plaza Condominiums Ass’n v. Eastep, 2004 SD 28, ¶ 8, 676 N.W.2d 842, 846)). Burley first alleged that Kytec was negligent because it defectively designed or manufactured the Over-speed Trainer. The court dismissed this claim because Burley failed to present expert testimony to explain “how a reasonable manufacturer could have designed and/or manufactured a safer alternative.” Burley responds that “Kytec’s own testimony conclusively establishes liability” for her claim. She relies on Kytec’s admission that it never tested the Overspeed Trainer or any of its component parts before distributing the product. Burley contends that Kytee also conceded that if the hook were bent, the Overspeed Trainer would be unsafe. Therefore, she argues that for this claim no expert testimony is necessary.

[¶ 27.] To establish liability in negligence for defective product design or manufacture, a plaintiff must show that the defendant failed to use the amount of care in designing or manufacturing the product that a reasonably careful designer or manufacturer would use in similar circumstances to avoid exposing others to a foreseeable risk of harm. Restatement Second of Torts § 395. To determine whether the designer or manufacturer used reasonable care, one must balance what the designer or manufacturer knew or should have known about the likelihood and severity of potential harm from the product against the burden of taking safety measures to reduce or avoid the harm. Id.

[¶ 28.] “Whether a manufacturer knew or should have known of a particular risk involves technical issues which do not easily admit to evidentiary proof and which lie beyond the comprehension of most jurors.” Peterson v. Safway Steel Scaffolds Co., 400 N.W.2d 909, 913 (S.D.1987). In particular, a plaintiff must set forth sufficient evidence establishing a causal connection between the design defect and the resulting injury. Shaffer v. Honeywell, Inc., 249 N.W.2d 251, 256 (S.D.1976), overruled on other grounds, First Premier Bank v. Kolcraft Enterprises, Inc., 2004 SD 92, 686 N.W.2d 430. “We do not require that plaintiff eliminate all other possible explanations of causation that the ingenuity of counsel might suggest.” Id. A plaintiff need only negate misuse of the product. Id. However, unless it is patently obvious that the accident would not have happened in the absence of a defect, a plaintiff cannot rely merely on the fact that an accident occurred. Id. It is not within the common expertise of a jury to deduce merely from an accident and injury that a product was defectively designed.

[¶ 29.] Burley argues that Kytee should have tested the product, and thus, should have known that the hook was bendable. However, Burley has not presented any evidence that even if the hook was bendable that such condition made the product defective. Moreover, it is undisputed that Horacek altered the design of the Over-speed Trainer before Burley’s injury. Therefore, even if the bendability of the hook arguably created a defect or dangerous condition in the product, expert testimony is needed to explain to the jury how the design of the Overspeed Trainer, not Horacek’s alteration, proximately caused Burley’s injuries. See Caldwell v. John Morrell & Co., 489 N.W.2d 353 (S.D.1992) (expert testimony is required when the issue falls outside the common experience of a jury).

[¶ 30.] Indeed, expert testimony is ordinarily required to establish a claim of negligence in a products liability action. Dancy v. Hyster Co., 127 F.3d 649, 654 (8th Cir.1997). Applying Arkansas law, the Eighth Circuit Court of Appeals in Dancy held that “absent expert testimony, there is no basis for the jury to evaluate the actions of an ordinarily prudent person .... ” Id. (citation omitted); see Anderson v. Raymond Corp., 340 F.3d 520, 524-25 (8th Cir.2003) (reaching the same decision and upholding summary judgment for claims of negligence, strict liability, and failure to warn due to lack of expert testimony under Arkansas law); Erling v. American Allsafe Co., 230 F.3d 1362 (8th Cir.2000) (unpublished) (upholding summary judgment on negligent failure to warn, negligent design, and strict liability claims because of lack of expert testimony under North Dakota law).

[¶ 31.] A manufacturer’s duty to test and inspect traditionally does not give rise to an independent cause of action for products liability. Rather, the plaintiff must prove, among other things, that because of the manufacturer’s failure to test and inspect, the accident occurred. Here, it is outside the common experience and capability of a jury to determine (1) that the possibility a user could bend the hook made the Overspeed Trainer defective, (2) if Kytec would have tested or inspected the Overspeed Trainer, it would have learned that the hook was bendable, and (3) whether the alteration of the product by Horacek or Kytec’s failure to test and inspect was a proximate or legal cause of Burley’s injuries. Thus, with respect to Burley’s negligent defective design and manufacture claim, expert testimony was required, and therefore, the circuit court properly granted summary judgment.

[¶ 32.] In her next claim, Burley alleges that Kytec is responsible under a theory of strict liability (defective design). Strict liability arises when a manufacturer “sells any product in a defective condition unreasonably dangerous to the user or consumer....” Peterson, 400 N.W.2d at 912 (citations omitted). “It is the unreasonableness of the condition of the product, not of the conduct of the defendant, that creates liability.” Id. (citing Jackson v. Coast Paint & Lacquer Co., 499 F.2d 809 (9th Cir.1974)). Unlike in a negligence claim, a defendant cannot avoid liability simply because at the time of production it did not know or could not have known of the product’s dangerous proclivities. See id. However, to establish a claim for strict liability (defective design), Burley must prove that the Overspeed Trainer “was in a dangerous and defective condition when it left the manufacturer.” See Engberg v. Ford Motor Co., 87 S.D. 196, 205, 205 N.W.2d 104, 109 (1973). Further, under SDCL 20-9-10, “[n]o manufacturer ... of a product may be held liable for damages for personal injury, ... sustained by reason of the doctrine of strict liability in tort based on a defect in a product ... where a proximate cause of the injury ... was an alteration or modification of such productf.]” Therefore, Burley also has the burden of establishing an evidentiary basis for the proximate or legal cause element of her claim.

[¶ 33.] As with her negligence claim, Burley contends that because Kytec knew that the Overspeed Trainer would be unsafe if the hook were bent, it should have designed a product “with a hook that would withstand attempts to bend it.” According to Burley, expert testimony is not necessary to explain to a jury that a stronger hook could have been used, thereby making the product safer. However, expert testimony is required to identify for the jury how the purportedly defective hook was the proximate or legal cause of Burley’s injuries. On this, she has not offered any evidence. She relies solely on her argument that a stronger hook could have been made, and because it was not, the Overspeed Trainer was defective and because she was injured the defect caused her injury.

[¶ 34.] A central element to her strict liability (defective design or manufacture) claim is that the defect was the cause of her injuries. While legal or proximate cause is generally a jury question, a causal relationship between the alleged defect and injury is not presumed. To survive a motion for summary judgment, Burley “must present more than ‘[unsupported conclusions and speculative statements, [which] do not raise a genuine issue of fact.’ ” See Bordeaux v. Shannon County Schools, 2005 SD 117, ¶14, 707 N.W.2d 123, 127 (quoting Paradigm Hotel Mortg. Fund v. Sioux Falls Hotel Co., Inc., 511 N.W.2d 567, 569 (S.D.1994)) (additional citation omitted). She has not provided an evidentiary basis tending to show that the injury was caused by a defect rather than the alteration of the product. Therefore, the circuit court properly granted summary judgment on this claim.

[¶ 35.] Lastly, Burley asserts that Kytec is liable for its failure to warn of the dangerous condition of the Over-speed Trainer. To prevail on a claim for strict liability (failure to warn), Burley must establish that

1. a danger existed associated with a foreseeable use of the product;
2. an inadequate warning was given regarding the danger;
3. as a result of the inadequate warning, the product was rendered defective and unreasonably dangerous;
4. the defective and unreasonably dangerous condition existed at the time it left the control of the manufacturer;
5. the product was expected and did reach the user without a substantial unforeseeable change in the condition that it was in when it left the manufacturer’s control; and
6. the defective condition was the legal cause of [her] injuries.

South Dakota Pattern Jury Instruction 150-04. “The issue under strict liability is whether the manufacturer’s failure to adequately warn rendered the product unreasonably dangerous without regard to the reasonableness of the failure to warn judged by negligence standards.” Peterson, 400 N.W.2d at 912 (citation omitted). “Further, the product itself need not be defective. Where a manufacturer or seller has reason to anticipate that danger may result from a particular use of [the] product, and [the manufacturer] fails to give adequate warning of such a danger, the product sold without such warning is in a defective condition within the strict liability doctrine.” Jahnig, 283 N.W.2d at 560 (citations omitted); see also Prince v. Par achutes, Inc., 685 P.2d 83, 87 (Alaska 1984) (citations omitted).

[¶ 36.] Although it is not clear from plaintiffs appellate briefs whether negligent failure to warn remains in issue here or whether Dr. Berkhout’s opinions were offered in support of such claim, his qualifications, subject to a reliability finding, may be sufficient to support that claim. To establish liability for negligent failure to warn, a claimant must prove that (1) the manufacturer knew or reasonably should have known that the product was dangerous or was likely to be dangerous when used in a reasonably foreseeable manner; (2) the manufacturer knew or reasonably should have known that users would not realize the danger; (3) that the manufacturer failed to exercise reasonable care and adequately warn of the danger or instruct on the safe use of the product; (4) that a reasonable manufacturer under the same or similar circumstances would have warned of the danger or instructed on the safe use of the product; (5) that the claimant was harmed; and (6) that the manufacturer’s failure to warn or instruct was a proximate or legal cause of the claimant’s injury. Restatement Second of Torts § 388. See also Jahnig v. Coisman, 283 N.W.2d 557, 560 (S.D.1979) (citations omitted).

[¶ 37.] Causation is an essential element in a failure to warn claim. Therefore, to survive a motion for summary judgment, Burley must present sufficient evidence to show that the bending of the hook was a foreseeable alteration that made the product unreasonably dangerous. She must also establish that Kytec should have included a warning against this foreseeable alteration, and even though the hook was bent, the failure to warn legally caused her injuries. As with her prior claims, Burley directs this Court to testimony from Kytec that it did not test or inspect the Overspeed Trainer before putting it into the stream of commerce and that Kytec acknowledged there were no warnings of any kind on the Overspeed Trainer or in the instructions accompanying it. Thus, because Kytec knew that the Overspeed Trainer would be unsafe if the hook was bent, Burley insists that this admission alone creates a material issue of fact on her claim for strict liability (failure to warn).

[¶ 38.] Although Kytec acknowledged that a bent hook would make the Overspeed Trainer unsafe, and conceded that it did not test or inspect the product to determine whether an adequate warning should have been provided against bending the hook, the fact that an accident occurred while Burley was using the Over-speed Trainer does not perforce mean that Kytee’s failure to warn was the legal cause of Burley’s injuries. Indeed, a manufacturer has a duty to test and inspect its products and a breach of this duty can render a product defective. However, a failure to test or inspect cannot, standing alone, cause the resulting injury. See supra n. 6. Rather, the duty to warn “may well encompass a duty to test a product to discover defects.” Kociemba, 707 F.Supp. at 1527 (quoting Willmar Poultry Co. v. Carcus Chemical Co., 378 N.W.2d 830, 836 (Minn.Ct.App.1985)).

[¶ 39.] Therefore, Burley must establish a causal relationship between Kytec’s failure to warn and her injury. This requires testimony about the product’s design and how, even though Horacek bent the hook, the lack of warnings included with or on the Overspeed Trainer was the legal cause of her injuries. As with her previous claims, causation for failure to warn requires expert testimony. It is beyond the common expertise of a jury to determine that (1) the Overspeed Trainer was defective or unreasonably dangerous based on Kytec’s failure to test or inspect it, (2) Horacek’s bending of the hook was a foreseeable change in the product that Ky-tec had a duty to warn against, and (3) even though the hook was bent, Kytec’s failure to warn was the legal cause of Burley’s injuries.

[¶40.] Had the product not been altered before the accident, Burley may have had sufficient evidence without expert testimony because absent a misuse or alteration it may be reasonable to infer the Overspeed Trainer was the legal or proximate cause of her injuries. However, to impose liability for Kytec’s failure to test and inspect the Overspeed Trainer, “where the causal link to the known harm to [Bur-ley] is the unknovm outcome of testing that was not done, would be beyond the pale of any ... tort doctrine we can identify.” See Valentine, 81 Cal.Rptr.2d at 265; see also Kociemba, 707 F.Supp. at 1527.

[¶ 41.] Dr. Berkhout is qualified to render opinions on the failure to warn claims. Accordingly, with respect to those claims (strict liability and negligence), if the circuit court finds that any of Dr. Berkhout’s opinions meet the reliability prong from DaubeH, then those opinions will be sufficient for these claims to be presented to the jury. On the other hand, should the court find the opinions unreliable, these claims cannot proceed without expert opinion testimony.

[¶ 42.] Affirmed in part, reversed in part, and remanded.

[¶ 43.] GILBERTSON, Chief Justice and ZINTER, Justice, concur.

[¶ 44.] SABERS and MEIERHENRY, Justices, concur in part and dissent in part.

SABERS, Justice

(concurring in part & dissenting in part).

[¶ 45.] If the trial court had its way, manufacturers of specially designed products could plagiarize or copy another manufacturer’s product without using, testing, designing, instructing on proper use, or warning on improper use. The product could be unworkable, defective, dangerous and could be marketed to South Dakota consumers almost without risk or liability. Thank God the majority opinion puts a stop to that scenario, at least in part.

[¶ 46.] However, the trial court made many other errors, which the majority opinion failed to correct. These errors result from an excessive view of the need for expert testimony and the qualifications therefore, a rush to summary judgment when genuine issues of material fact exist, and excessive emphasis on admissibility over the weight of opinion evidence.

[¶ 47.] As indicated in the majority opinion at paragraph 24, all that must be shown is that expert’s testimony rest upon “good grounds, based on what is known.” See Daubert, 509 U.S. at 590, 113 S.Ct. at 2795 (internal quotations omitted). The rule (Rule 702) clearly “is one of admissibility rather than exclusion.” See supra ¶24 n. 4 (quoting Arcoren, 929 F.2d at 1239). The majority opinion corrects the trial court’s error on this part.

[¶ 48.] However, the majority opinion fails to correct the remainder of the mistakes. Facts supporting reversal of summary judgment on 1) negligence and 2) strict liability (defective design) appear in the majority opinion at ¶ 4 as follows:

After Horacek assembled it, he attempted to use it to see if it would release as the instructions indicated. He noticed that the hook on the sprinter’s belt would rotate downward, thereby “making it virtually impossible for a ‘downward chop’ to release the hook and ring.” Because the downward chop was a means of releasing the sprinter from the pacer’s pull, Horacek decided to bend the hook just enough to make it easier for the ring to release. He bent the hook by using pliers and then tried using the device again. This time, he believed that the hook and ring released appropriately when he applied the downward chop.

Supra ¶ 4. .

[¶ 49.] Because the hook would rotate downward, it was virtually impossible for a downward chop to release the hook and ring. Obviously, it was foreseeable that someone would bend this hook to allow the ring to release, especially in view of the absence of instructions to the contrary and the fact that the downward chop was a purported safety release. In addition, if the hook should not have been bent, it could have been so designed or made with sturdier materials to prevent bending. The majority opinion claims Burley has “not provided an evidentiary basis tending to show that the injury was caused by a defect rather than the alteration of the product.” Supra ¶ 34. However, the fact that the ring could be bent, coupled with the admissions Kytec knew the product would be dangerous if the ring was bent, and did no testing to discover if the ring could be bent, is ample evidence for the jury. “The law recognizes that there can be strict liability of a supplier even though the product is altered or changed if it is foreseeable that the alteration would be made and the change does not unforesee-ably render the product unsafe.” Zacher v. Budd Co., 396 N.W.2d 122, 135 (S.D.1986).

[¶ 50.] Moreover, the Eighth Circuit has held, and this Court has noted in one of our cases, that “where there exists both a design defect and misuse of the product, and it is assumed that each contributes to an accident, the misuse of the product is not an intervening cause if the misuse was foreseeable.” Id. (quoting Griggs v. Firestone Tire & Rubber Co., 513 F.2d 851, 861-62 (8th Cir.) cert. denied, 423 U.S. 865, 96 S.Ct. 124, 46 L.Ed.2d 93 (1975)). Therefore, Kytec cannot escape liability because of the alteration. Kytec admitted the product would be dangerous if the hook was bent, yet did no testing to ensure the hook could not be bent or even warn consumers not to bend the hook. The coach bent the hook so the product would release as the instructions purported it would. Burley suffered a great injury. Kytec should not escape liability because the trial court and the majority opinion believe the jury needs expert testimony to spoon feed it something that can be deduced by the jury itself under the facts presented.

[¶ 51.] These questions present genuine issues of material fact concerning negligence, strict liability (defective design). The trial court is supposed to maintain an even playing field, not one slanted uphill. The trial court is supposed to be the gate keeper, not the goal keeper, nor the score keeper. We should reverse and remand for a fair trial on all issues.

[¶ 52.] It was clear error for the trial court and the majority opinion to affirm the summary judgment on negligence, strict liability (defective design) when the admission of Dr. Berkhout’s expert opinion testimony, the admissions by Kytec and the common sense and knowledge of the jury may be more than enough to support all three causes of action. The majority opinion claims imposing liability “for Ky-tec’s failure to test and inspect the Over-speed Training, where the causal link to the harm to [Burley] is the unknown outcome of testing not done, would be beyond the pale of any ... tort doctrine we can identify.” Supra ¶ 40 (quoting Valentine, 81 Cal.Rptr.2d at 265). However, using summary judgment to dispose of claims that have ample evidence and questions for the jury goes beyond our repeatedly admonished narrow use of summary judgment. See Heib v. Lehrkamp, 2005 SD 98, ¶ 45, 704 N.W.2d 875, 889-90 (Sabers, J., dissenting) (noting summary judgment is an extreme remedy only to be used “when the truth is clear”); Richards v. Lenz, 539 N.W.2d 80, 83 (S.D.1995) (noting that “[s]ummary judgment is a drastic remedy and should not be granted unless the moving party has established a right to a judgment with such clarity as to leave no room for controversy”).

[¶53.] This case is one to be decided by a jury. “It is inappropriate to affirm a trial court’s grant of summary judgment merely because we might believe the non-moving party would not have prevailed at trial.” Heib, 2005 SD 98, ¶ 46, 704 N.W.2d at 891 (Sabers, J., dissenting) (citing Wulf v. Senst, 2003 SD 105, ¶17, 669 N.W.2d 135, 141). Summary judgment is not to be used to control cases whose outcomes are in doubt.

[¶ 54.] Because material issues of genuine fact exist and expert testimony is not necessarily needed to support Burley’s claims, I dissent.

MEIERHENRY, Justice

(concurring in part and dissenting in part).

[¶ 55.] I concur on Issue 1 (Daubert) and join Justice Sabers’ dissent on the other issues.

      . Burley settled her claim against West Central School District.

      . We agree with the circuit court that Dr. Berkhout’s opinions would be relevant. Ky-tec argues that Dr. Berkhout's opinions about failure to warn are irrelevant primarily because Burley never read the instructions on using the Overspeed Trainer, so she could not have been confused or misled by them. However, Kytec knew that this product was sold to schools where the users would be minor student athletes. It knew that coaches or school personnel would be the ones who actually read the instructions before the students used the product.

      . A number of federal courts have used the Daubert framework in evaluating the admissibility of opinions from professional ergonom-ists. See Magdaleno v. Burlington Northern R.R. Co., 5 F.Supp.2d 899 (D.Colo.1998) (unpublished); Finley v. NCR Corp., 964 F.Supp. 882, 886 (D.N.J.1996); Dennis v. Pertec Computer Corp., 927 F.Supp. 156, 161 (D.N.J.1996), aff'd, 135 F.3d 764 (3d Cir.1997); Bennett v. PRC Public Sector, Inc., 931 F.Supp. 484, 493-94 (S.D.Tex.1996); Vice v. Northern Telecom, Inc., 1996 WL 200281 (E.D.La.) (unpublished); Dukes v. Illinois Central R.R. Co., 934 F.Supp. 939, 947 (N.D.Ill.1996); Zarecki v. Nat'l R.R. Passenger Corp., 914 F.Supp. 1566, 1572-73 (N.D.Ill.1996);; Schneck v. Int'l Business Machines Corp., 1996 WL 885789 (D.N.J.) (unpublished); Bowers v. Northern Telecom, Inc., 905 F.Supp. 1004, 1009-10 (N.D.Fla.1995); Hopkins v. NCR Corp., 1994 WL 757510 (M.D.La.) (unpublished), aff'd, 53 F.3d 1281 (5th Cir.1995).

      . "Rule 702 reflects an attempt to liberalize the rules governing the admission of expert testimony." Weisgram v. Marley Co., 169 F.3d 514, 523 (8th Cir.1999) affd, 528 U.S. 440, 120 S.Ct. 1011, 145 L.Ed.2d 958 (2000); see also Daubert, 509 U.S. at 588, 113 S.Ct. at 2794, 125 L.Ed.2d 469 (citing Beech Aircraft Corp. v. Rainey, 488 U.S. 153, 169, 109 S.Ct. 439, 450, 102 L.Ed.2d 445 (1988)) (highlighting the " 'liberal thrust' of the Federal Rules and their 'general approach of relaxing the traditional barriers to ‘opinion’ testimony’ ”). The rule clearly "is one of admissibility rather than exclusion." Arcoren v. United States, 929 F.2d 1235, 1239 (8th Cir.1991).

      . Dr. Berkhout was only offered as an expert on Burley's inadequate instructions and failure to warn claims.

        . Burton v. R.J. Reynolds Tobacco Co., 397 F.3d 906, 920 (10th Cir.2005) ("plaintiff must prove that the manufacturer's failure to test its product resulted in a defective product that caused injury to the plaintiff”) (citing Lindquist v. Ayerst Laboratories, Inc., 227 Kan. 308, 607 P.2d 1339, 1350 (1980)); Kociemba v. GD Searle & Co., 707 F.Supp. 1517, 1527 (D.Minn.1989) ("unless the manufacturer’s breach of its duty to test leads the manufacturer to produce a product that is defective in design, manufacture, or warning, no injury can result”); Valentine v. Baxter Healthcare Corp., 68 Cal.App.4th 1467, 81 Cal.Rptr.2d 252, 265 (1999); West v. Broderick & Bascom Rope Co., 197 N.W.2d 202, 212 (Iowa 1972) ("[f]or testing to be material, substantial evidence must be introduced of a defect in the article”); Vassallo v. Baxter Healthcare Corp., 428 Mass. 1, 696 N.E.2d 909, 921 (1998) (breach of duty to test does not create an independent cause of action); Green v. General Motors Corp., 310 N.J.Super. 507, 709 A.2d 205, 216 (Ct.App.1998) ("a failure to test or of inadequate testing may be evidential as an explanation of why a design was defective, but it is not in itself proof of a separate basis for liability”); see also Oddi v. Ford Motor Co., 234 F.3d 136, 143 (3d Cir.2000) (no independent cause of action in Pennsylvania for negligent failure to test).

      . In its brief to this Court, Kytec contends that because Burley did not read the instructions, the proper party to bring a failure to warn claim would be Horacek. Horacek, however, was in a role as parens patriae when reading the instructions before the student athletes’ use of the Overspeed Trainer. Therefore, that fact that Burley did not read the instructions is immaterial.


source: Caselaw Access Project

author: MEIERHENRY, Justice.

license: Public Domain

text:
    2007 SD 80
    DAKTRONICS, INC., Plaintiff and Appellant, v. LBW TECH CO., INC. and Ling Tang, Defendants and Appellees.
    No. 24331.
    Supreme Court of South Dakota.
    Argued on May 22, 2007.
    Decided Aug. 1, 2007.

      Rochelle R. Cundy, Roberto A. Lange of Davenport, Evans, Hurwitz & Smith, LLP, Sioux Falls, South Dakota, Attorneys for plaintiff and appellant.
    Alan F. Glover, Jody Odegaard Smith of Glover & Helsper, PC, Brookings, South Dakota, Attorneys for defendants and ap-pellees.
   MEIERHENRY, Justice.

[¶ 1.] Daktronics, Inc. brought suit against LBW Tech Co., Inc. and Ling Tang in South Dakota seeking a declaratory judgment and damages for deceit and negligent misrepresentation. LBW and Daktronics had entered into a contract wherein LBW would facilitate Daktronics’ exploration of business opportunities in China. Under the contract, LBW attempted to secure contracts between Dak-tronics and Chinese businesses. LBW and Tang filed a motion to dismiss pursuant to SDCL 15-6-12(b) for lack of personal jurisdiction, improper venue and/or forum non conveniens. The circuit court dismissed the action based upon lack of personal jurisdiction. Daktronics appeals. Because we conclude that sufficient minimum contacts existed to confer personal jurisdiction over the defendants, we reverse.

[¶ 2.] “We review issues regarding a court’s jurisdiction as questions of law under the de novo standard of review.” Grajczyk v. Tasca, 2006 SD 55, ¶ 8, 717 N.W.2d 624, 627 (citing State ex rel. LeCompte v. Keckler, 2001 SD 68, ¶6, 628 N.W.2d 749, 752). We recently discussed the proper standard of review for a motion to dismiss under SDCL 15 — 6—12(b):

A motion to dismiss under SDCL 15-6-12(b) tests the legal sufficiency of the pleading, not the facts which support it. For purposes of the pleading, the court must treat as true all facts properly pled in the complaint and resolve all doubts in favor of the pleader. “Our standard of review of a trial court’s grant or denial of a motion to dismiss is the same as our review of a motion for summary judgment — is the pleader entitled to judgment as a matter of law?” Thus, all reasonable inferences of fact must be drawn in favor of the non-moving party and we give no deference to the trial court’s conclusions of law.

Guthmiller v. Deloitte & Touche, LLP, 2005 SD 77, ¶ 4, 699 N.W.2d 493, 496 (quoting Vitek v. Bon Homme County Bd. of Com’rs, 2002 SD 100, ¶ 7, 650 N.W.2d 513, 516).

[¶ 3.] In this case, the only evidence before the court consisted of documentary evidence, including affidavits and declarations. “We review a district court’s determination regarding personal jurisdiction based on written submissions in the light most favorable to the nonmoving party.” Stanton v. St Jude Medical, Inc., 340 F.3d 690, 693 (8th Cir.2003) (citing Wines v. Lake Havasu Boat Mfg., Inc., 846 F.2d 40, 42 (8th Cir.1988) (per curiam)). Because the circuit court did not hear testimony or hold a fact-finding hearing, we are required to resolve factual disputes in favor of Daktronics.

[¶ 4.] “The inquiry into whether a court may assert personal jurisdiction over a nonresident defendant is two-fold.” Denver Truck and Trailer Sales, Inc. v. Design and Bldg. Servs., Inc., 2002 SD 127, ¶ 9, 653 N.W.2d 88, 91. The first inquiry is whether the legislature granted the court jurisdiction pursuant to South Dakota’s Long Arm Statute, SDCL 15-7-2. Id. The second inquiry is “whether the proposed assertion of jurisdiction comports with federal due process requirements.” Id.

[¶ 5.] As to the first inquiry, the court determined that it had jurisdiction under the Long Arm Statute. LBW and Tang do not challenge the court’s determination. It is the second inquiry of whether jurisdiction comports with due process that is at issue. The due process inquiry requires this Court to decide whether LBW/ Tang had sufficient minimum contacts with South Dakota to conclude that the assertion of jurisdiction does not offend “traditional notions of fair play and substantial justice.” See Int'l Shoe Co. v. Washington, 326 U.S. 310, 316, 66 S.Ct. 154, 158, 90 L.Ed. 95 (1945) (citations omitted). It is also essential that there be some act of LBW/Tang by which they purposefully availed themselves of the privilege of conducting activities within South Dakota, thus invoking the benefits and protections of its laws. See Burger King Corp. v. Rudzewicz, 471 U.S. 462, 475, 105 S.Ct. 2174, 2183, 85 L.Ed.2d 528 (1985) (quotation omitted). “This ‘purposeful availment’ requirement ensures that a defendant will not be haled into a jurisdiction solely as a result of ‘random,’ ‘fortuitous,’ or ‘attenuated’ contacts.... ” Id. (quotation omitted). Moreover, LBW/Tang’s conduct and connection with South Dakota must be such that they would reasonably anticipate being haled into South Dakota courts. See World-Wide Volkswagen Corp. v. Woodson, 444 U.S. 286, 297, 100 S.Ct. 559, 567, 62 L.Ed.2d 490 (1980) (citations omitted).

[¶ 6.] Construing the United States Supreme Court’s precedent regarding federal due process requirements, we have established a three step test to determine whether minimum contacts exist and due process is satisfied. Frankenfeld v. Crompton Corp., 2005 SD 55, ¶ 17, 697 N.W.2d 378, 384 (citing Rothluebbers v. Obee, 2003 SD 95, ¶26, 668 N.W.2d 313, 322). Under this test:

First, the defendant must purposefully avail himself of the privilege of acting in the forum state, thus invoking the benefits and protections of its laws. Second, the cause of action must arise from defendant’s activities directed at the forum state. Finally, the acts of defendant must have substantial connection with the forum state to make the exercise of jurisdiction over defendant a reasonable one.

Id. (citing Rothluebbers, 2003 SD 95, ¶ 26, 668 N.W.2d at 322; Denver Truck, 2002 SD 127, ¶ 11, 653 N.W.2d at 91; Opp v. Nieuwsma, 458 N.W.2d 352, 355-56 (S.D. 1990)).

[¶ 7.] We must review the facts under this three step test. Daktronics is a South Dakota corporation with its principal place of business in Brookings, South Dakota. Its business consists of designing, manufacturing and selling display systems used for athletics, business and transportation. LBW is a Nevada entity with its principal place of business in California. It acts in the capacity of a business consultant and intermediary contact between companies in China and the United States. Tang is the chief executive officer and authorized representative of LBW and a California resident.

[¶ 8.] Daktronics and LBW/Tang entered into a consulting agreement. Dak-tronics signed the agreement in South Dakota and then mailed it to Tang in California. Tang signed the agreement in California and forwarded the fully executed agreement back to South Dakota. The agreement did not contain a choice of law provision or a forum selection clause. The agreement required Tang to perform consulting work in China and Daktronics to provide payment for her services.

[¶ 9.] The following contacts between LBW/Tang and South Dakota are not in dispute: (1) Tang telephoned, e-mailed and faxed Daktronics executives in South Dakota; (2) she visited Daktronics’ headquarters in South Dakota at the expense of Daktronics; (3) while in South Dakota, Tang and Daktronics discussed a potential business relationship; (4) after her visit, Tang sent e-mails to and telephoned South Dakota; (5) Tang and Daktronics entered into a three-year consulting agreement, partially executed in South Dakota; (6) in accordance with the agreement, Tang sent status reports and reimbursement requests to South Dakota; and (7) Tang received payment for her services and reimbursement for her expenses from South Dakota.

[¶ 10.] The disputed facts center on who initiated contact between the parties and who solicited whose business. Daktronics submits that LBW/Tang initiated contact and solicited business with Daktronics, and LBW/Tang claim Dak-tronics initiated contact and solicited business with Tang. However, “[i]t is [ordinarily] not significant that one or the other party initiated the relationship.” Gen. Elec. Co. v. Deutz AG, 270 F.3d 144, 151 (3rd Cir.2001) (citation omitted). Rather, “the intention to establish a common venture extending over a substantial period of time is a more important consideration.” Id. Furthermore, although LBW/Tang relied heavily on this fact at oral argument, we look at all of the contacts between an out-of-state resident and the forum, not one single factor. See Logan Productionss, Inc. v. Optibase, Inc., 103 F.3d 49, 53 (7th Cir.1996) (“the constitutionality of jurisdiction does not turn on which party ‘started it.’ Rather, pinning down which party initiated the transaction is merely one helpful factor in the jurisdictional equation”) (citing Madison Consulting Group v. South Carolina, 752 F.2d 1193, 1202 (7th Cir.1985)).

[¶ 11.] With respect to interstate contractual obligations, like the one here, the United States Supreme Court has emphasized that “parties who ‘reach out beyond one state and create continuing relationships and obligations with citizens of another state’ are subject to regulation and sanctions in the other State for the consequences of their activities.” Burger King Corp., 471 U.S. at 473, 105 S.Ct. at 2182, 85 L.Ed.2d 528 (quoting Travelers Health Assn. v. Virginia, 339 U.S. 643, 647, 70 S.Ct. 927, 929, 94 L.Ed. 1154 (1950)) (additional citation omitted). The Court stated:

[W]here the defendant ‘deliberately’ has engaged in significant activities within a State, or has created ‘continuing obligations’ between himself and residents of the forum, he manifestly has availed himself of the privilege of conducting business there, and because his activities are shielded by ‘the benefits and protections’ of the forum’s laws it is presumptively not unreasonable to require him to submit to the burdens of litigation in that forum as well.

Id. at 475-76, 105 S.Ct. at 2184, 85 L.Ed.2d 528 (internal quotations omitted).

[¶ 12.] Here, there is no question that Tang knew she was negotiating with a South Dakota corporation for the creation of a continuing three-year contract with Daktronics and the benefits that would derive from such a relationship. She had an obligation to provide services to a South Dakota corporation, even though such services were performed in China. Furthermore, throughout the duration of the contract, she submitted status reports and reimbursement requests to South Dakota. Thus, she voluntarily accepted the regulation of her business from Daktronics’ headquarters in South Dakota.

[¶ 13.] Moreover, “where individuals ‘purposefully derive benefit’ from their interstate activities, it may well be unfair to allow them to escape having to account in other States for consequences that arise proximately from such activities; the Due Process Clause may not readily be wielded as a territorial shield to avoid interstate obligations that have been voluntarily assumed.” Id. at 473-74, 105 S.Ct. at 2183, 85 L.Ed.2d 528 (quoting Kulko v. California Superior Ct., 436 U.S. 84, 96, 98 S.Ct. 1690, 1699, 56 L.Ed.2d 132 (1978)). As a result of Tang’s interstate activities with Daktronics in South Dakota, Tang received payment for her services and reimbursement for her expenses from South Dakota. Thus, she purposefully derived a benefit from her interstate activities.

[f 14.] Although Burger King Corp. acknowledged that an individual’s contract with an out-of-state party alone cannot establish sufficient minimum contacts in the other party’s home forum, 471 U.S. at 478, 105 S.Ct. at 2185, 85 L.Ed.2d 528, the Court also recognized that “even a single act can support jurisdiction” if it “creates a ‘substantial connection’ with the forum.” Id. at 475 n. 18, 105 S.Ct. at 2184 n. 18, 85 L.Ed.2d 528 (quotation omitted). The facts as submitted to the trial court showed that Tang had more contacts with Daktronics in South Dakota than just the single act of establishing a contract. See supra ¶ 9. In fact, the nature and subject matter of the contract created a substantial connection to Daktronics’ headquarters in South Dakota. Provisions of the three-year contract contemplated continuous contacts between Tang and Daktronics in South Dakota. Additionally, the contract’s objective was that her successful performance of the contract would have a lasting impact on Daktronics’ South Dakota office because her performance would elicit future business and income for Daktronics’ headquarters.

[¶ 15.] LBW and Tang claim the contacts in this case are more attenuated than the contacts in Denver Truck where this Court dismissed an action based on lack of personal jurisdiction. However, this argument is misplaced. In Denver Truck, none of the substantive negotiations took place in South Dakota, and the out-of-state corporation had only three contacts with South Dakota' — one letter and two phone calls. 2002 SD 127, ¶¶ 13-14, 653 N.W.2d at 92. Furthermore, the contract was wholly executed outside of South Dakota, and the out-of-state defendant had no notice that it was receiving compensation from a South Dakota corporation. Id. ¶¶ 16-17. These facts differ substantially from those presented here. Unlike Denver Truck, the substantive negotiations did take place at Daktronics’ headquarters in South Dakota and through numerous communications with Daktronics’ representatives in South Dakota via both telephone and e-mail. Also, Tang knew she was entering into an ongoing relationship with a South Dakota corporation and assuming obligations that would directly affect the corporation.

[¶ 16.] For the foregoing reasons, we conclude that sufficient minimum contacts do exist, and Tang purposefully availed herself of the privilege of acting in South Dakota. Next, we must determine whether the cause of action arose from Tang’s activities directed at South Dakota and whether Tang’s acts have a substantial connection with South Dakota so as to make the exercise of jurisdiction reasonable. In this case, the causes of action— deceit, misrepresentation and declaration of amounts due under the contract — arise out of the contract between LBW and Daktronics. The contract was negotiated and partially executed in South Dakota and was the culmination of Tang’s e-mails and phone calls to South Dakota. Thus, the second prong of the test for due process is satisfied.

[¶ 17.] LBW and Tang argue that the third prong of the due process analysis, reasonableness, is not met in this case. When considering whether the assertion of jurisdiction is reasonable, this Court must consider “ ‘the burden on the defendant, the interests of the forum State, and the plaintiffs interest in obtaining relief and the interest of other states in securing the most efficient resolution of controversies.” Denver Truck, 2002 SD 127, ¶ 19, 653 N.W.2d at 93 (quotation omitted). To support their argument, LBW and Tang submit that it is more burdensome for them to litigate in South Dakota. However, the United States Supreme Court addressed this concern when it stated:

[Bjecause “modern transportation and communications have made it much less burdensome for a party sued to defend himself in a State where he engages in economic activity,” it usually will not be unfair to subject him to the burdens of litigating in another forum for disputes relating to such activity.

Burger King Corp., 471 U.S. at 474, 105 S.Ct. at 2183, 85 L.Ed.2d 528 (quoting McGee v. Int’l Life Ins. Co., 355 U.S. 220, 223, 78 S.Ct. 199, 201, 2 L.Ed.2d 223 (1957)). LBW and Tang also argue that most of the parties involved in this matter reside in California or China. However, Daktronics’ headquarters and executives are located in South Dakota, and South Dakota has an interest in resolving contractual disputes that have a significant impact on a South Dakota corporation. Therefore, the third prong of the test is also satisfied.

[¶ 18.] Considering only the undisputed facts, we conclude that Daktronics adequately fulfilled the three step test for due process. LBW/Tang had sufficient minimum contacts with South Dakota and purposefully availed themselves of its laws; the causes of action arise out of those contacts; and the contacts create a substantial connection with South Dakota so that assertion of jurisdiction is not unreasonable. For these reasons, we reverse the trial court’s dismissal of the action based on lack of personal jurisdiction.

[¶ 19.] Reversed.

[¶ 20.] GILBERTSON, Chief Justice, and SABERS, KONENKAMP, and ZINTER, Justices, concur.

      . The parties dispute who requested that Tang visit Daktronics' headquarters in South Dakota.

      . LBW and Tang also argued below that who "initiated the initial contact ... goes to the core of our argument.”


author: WILBUR, Circuit Judge.

text:
    2007 SD 81
    Farrell DILLON, Petitioner and Appellant, v. Doug WEBER, Warden of the South Dakota State Penitentiary, Respondent and Appellee.
    No. 23985.
    Supreme Court of South Dakota.
    Argued March 19, 2007.
    Decided Aug. 1, 2007.

      Stephanie E. Poehop of Johnson Eklund Law Offices, Gregory, South Dakota, Attorneys for petitioner and appellant.
    Lawrence E. Long, Attorney General, Sherri Sundem Wald and Meghan N. Dilg-es, Assistant Attorneys General, Pierre, South Dakota, Attorneys for respondent and appellee.
   WILBUR, Circuit Judge.

[¶ 1.] Habeas corpus petitioner seeks relief based on ineffective assistance of trial counsel. The habeas court found no ineffective assistance. We reverse.

BACKGROUND

[¶ 2.] An overview of the factual and procedural history of this case is set forth in State v. Dillon, 2001 SD 97, 632 N.W.2d 37. Only the facts pertinent to the present habeas corpus action will be discussed here. In 1998 Farrell Dillon (Dillon) was charged with seven counts of first degree rape, two counts of third degree rape, and five counts of criminal pedophilia. It was alleged that Dillon performed these acts, on two separate occasions, upon his eight-year-old daughter K.D. and four of her friends: seven-year-old L.R., nine-year-old N.R., eight-year-old S.R.B., and eight-year-old T.T. Dillon pled not guilty to all charges and has at all times maintained his innocence.

[¶ 3.] Dillon hired Attorney Richard Bode (Bode) to represent him. A jury trial was held on August 17-20, 1999. Dillon was convicted of five counts of first degree rape and three counts of criminal pedophilia. The jury found Dillon not guilty of two counts of first degree rape and two counts of criminal pedophilia. Dillon received a 175-year sentence.

[¶ 4.] After obtaining new counsel, Dillon appealed, arguing that convictions for both first degree rape and criminal pedophilia arising from the same act of sexual penetration violated the double jeopardy provisions of both the United States and South Dakota Constitutions. Despite the fact that Dillon failed to raise the double jeopardy issue at trial, this Court, applying “the plain error rule and the doctrine allowing courts to rectify constitutional error,” vacated three of the first degree rape convictions and the case was remanded for resentencing. Dillon, 2001 SD 97, ¶ 12, 632 N.W.2d at 43. Dillon was re-sentenced to a term of 115 years.

[¶ 5.] Dillon subsequently filed the current habeas action based on ineffective assistance of his trial counsel, Bode. A hearing was held before the Honorable Merton Tice on April 18-19, 2005. Dillon testified at the hearing, as did Bode and two expert witnesses that Bode had hired to testify on Dillon’s behalf at trial. Two expert criminal defense attorneys, Stanley Whiting and Randy Connelly, hired respectively by Dillon and the State, also testified as to the effectiveness of Bode’s representation as trial counsel. After the hearing, Judge Tice denied Dillon’s request for habeas relief, concluding that Dillon failed to meet his burden of proving that he received an unfair trial. Findings of fact, conclusions of law, and an order denying Dillon’s writ were issued on December 22, 2005. Dillon filed a motion for a certificate of probable cause, which the habeas court granted in an order dated January 11, 2006. Dillon filed the present appeal on February 2, 2006.

STANDARD OF REVIEW

[¶ 6.] In a habeas case based on ineffective assistance of counsel, the defendant bears the burden of proving by a preponderance of the evidence that he is entitled to relief. Owens v. Russell, 2007 SD 3, ¶ 6, 726 N.W.2d 610, 614 (citations omitted). The habeas court’s findings of fact regarding counsel’s, performance are reviewed for clear error, and its conclusions of law are reviewed de novo. Id. This Court may substitute its own judgment “ ‘as to whether defense counsel’s actions or inactions constituted ineffective assistance of counsel.’ ” Id. (quoting Nikolaev v. Weber, 2005 SD 100, ¶ 8, 705 N.W.2d 72, 75).

[¶ 7.] A claim of ineffective assistance of counsel presents a mixed question of law and fact and must be reviewed under the two-prong test announced in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). “Under the first prong, the petitioner must show trial counsel’s errors were so serious that he was not functioning as counsel guaranteed by the Constitution.” Denoyer v. Weber, 2005 SD 43, ¶ 19, 694 N.W.2d 848, 855 (citations omitted). This requires the petitioner to demonstrate that counsel’s representation failed to satisfy an objective standard of reasonableness. Owens, 2007 SD 3, ¶ 8, 726 N.W.2d at 615 (citing Hofer v. Class, 1998 SD 58, ¶ 10, 578 N.W.2d 583, 585). “ ‘Judicial scrutiny of counsel’s performance must be highly deferential.’ ” Id. The petitioner must overcome “ ‘a strong presumption that counsel’s conduct falls within the wide range of reasonable professional assistance[.]’” Id.

[¶ 8.] The second prong in the Strickland analysis “requires a showing of serious prejudice such that the errors deprived the defendant of a fair trial, a trial whose result is reliable.” Denoyer, 2005 SD 43, ¶ 19, 694 N.W.2d at 855. Prejudice exists only when “ ‘there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.’ ” Owens, 2007 SD 3, ¶ 9, 726 N.W.2d at 615 (quoting Strickland, 466 U.S. at 694, 104 S.Ct. at 2068). “ ‘A reasonable probability is a probability sufficient to undermine confidence in the outcome.’ ” Id.

ANALYSIS

ISSUE ONE

[¶ 9.] Was Bode functioning as counsel guaranteed by the Sixth Amendment to the Constitution?

[¶ 10.] The Sixth Amendment to the United States Constitution guarantees that, “[i]n all criminal prosecutions, the accused shall enjoy the right ... to have the Assistance of Counsel for his defence.” The purpose of this constitutional guarantee is to assure “that a defendant has the assistance necessary to justify reliance on the outcome of the proceeding.” Strickland, 466 U.S. at 692, 104 S.Ct. at 2067. A lawyer does not satisfy this constitutional mandate if his representation falls below an objective standard of reasonableness. Owens, 2007 SD 3, ¶ 8, 726 N.W.2d at 615 (citations omitted). In making this determination, we have said:

While this Court will not compare counsel’s performance to that of some idealized “super-lawyer” and will respect the integrity of counsel’s decision in choosing a particular strategy, these considerations must be balanced with the need to insure that counsel’s performance was within the realm of competence required of members of the profession.

Sprik v. Class, 1997 SD 134, ¶24, 572 N.W.2d 824, 829 (quoting Roden v. Solem, 431 N.W.2d 665, 667 n. 1 (SD 1988)).

[¶ 11.] Claims of ineffective assistance of counsel must be evaluated in light of the totality of the circumstances. Iron Shell v. Leapley, 503 N.W.2d 868, 872 (S.D.1993) (“In determining whether counsel was ineffective, we must consider the totality of the evidence before the judge or jury.”); Aliberti v. Solem, 428 N.W.2d 638, 641 (S.D.1988) (“The ultimate test of whether trial counsel was ineffective is whether under the entire record and totality of the circumstances, counsel’s performance was within the range of normal competency.”). See also Lawrence v. Lockhart, 767 F.2d 449, 450 (8th Cir.1985) (indicating that, to prove ineffective assistance of counsel, a petitioner must prove “that his attorney’s actions were unreasonable when viewed in the totality of the circumstances”). The record in this case is replete with examples of deficient performance on the part of Dillon’s counsel Bode, during both the pretrial and trial stages of the proceeding. When viewed in the totality of the circumstances, it is clear that Dillon’s representation was below the level of competency required by members of the legal profession.

A. Pretrial errors

[¶ 12.] Bode’s failure to raise the double jeopardy defense at Dillon’s trial was evidence of his ineffectiveness. This Court rectified the mistake on appeal, but that concerned only Dillon’s sentence, not the findings of guilt or innocence on each of the underlying charges. Had Bode identified the double jeopardy issue, it would have resulted in three fewer charges being brought against Dillon, and three fewer charges read to the jury at the start of the trial. The number of charges brought against a defendant could have a prejudicial effect. This Court has found ineffective assistance when a lawyer, among other failings, “made no attempt to limit the number of charges brought against [the defendant].” New v. Weber, 1999 SD 125, ¶ 12, 600 N.W.2d 568, 574 (citing Wayrynen v. Class, 1998 SD 111, 586 N.W.2d 499).

[¶ 13.] Another example of ineffectiveness was Bode’s failure to investigate a prior allegation of sexual abuse by two of the victims in the ease, N.R. and L.R. In 1994, N.R., L.R., and their mother accused a man other than Dillon of sexual assault. The State declined to prosecute the alleged perpetrator. Prior to the trial court’s hearing on whether this previous allegation would be admissible at Dillon’s trial, Bode failed to contact the alleged perpetrator and did not explore the basis for the State’s refusal to prosecute. The trial court ruled that Dillon could not use the prior abuse allegations at trial. This Court has found ineffective assistance “when counsel failed to inquire of known witnesses!!.]” Id. ¶ 13 (citing Sund v. Weber, 1998 SD 123, 588 N.W.2d 223). See also Chambers v. Armontrout, 907 F.2d 825, 829-31 (8th Cir.1990) (holding that the failure to investigate constitutes ineffective assistance of counsel).

[¶ 14.] Bode’s failure to prepare his expert witnesses was further evidence of his ineffectiveness. Both expert witnesses, Dick Leir, a clinical social worker, and Dr. Dewey Ertz, a psychologist, testified at the habeas hearing that Bode had failed to properly prepare them for the trial. Notably, there was no physical evidence of sexual assault in this case, and the entire case turned on the credibility of the victims. Expert testimony was critical to Dillon’s defense. Thus, Bode’s failure to properly prepare Dillon’s two expert witnesses was an error.

[¶ 15.] Another serious error was Bode’s failure to provide the trial court with an offer of proof concerning his expert witness testimony. At a pretrial hearing on August 4, 1999, the trial court specifically requested from Bode “a more specified offer of proof about what type of testimony you intend to elicit [from your expert witnesses].” Bode sought to introduce evidence about the interview techniques employed on the victims in the case, but the trial court was not satisfied with the foundation laid by Bode for such testimony. Still, the trial court gave Bode another chance, and even seemed to guide him along, stating:

The Court will allow generalized compression on interview techniques if you lay the right foundation. For example, you asked questions like this: Can children’s involvement with each other affect each other? Can an interviewer produce false memories of children? Did you find inconsistencies from your examination of the statements? Et cet-era. These are all proper lines of inquiry providing you can lay the specific factual foundation.... [A]nd that’s why the Court is requesting from you a more specified offer of proof on how you intend to approach the interview topic.

[¶ 16.] Bode provided no subsequent offer of proof on this topic. Instead, on the third day of trial, he attempted to introduce expert testimony on another topic, one which the trial court had already ruled inadmissible during a pretrial hearing. The trial court rebuked Bode:

It’s untimely, Mr. Bode. We’re in the third day of trial. The Court has given you an opportunity and I believe an opportunity to present your expert testimony to make an offer of testimonial. I believe the Court gave you a continuance to present that. And then the Court gave you a further opportunity to present it in writing, even after the hearing which you were to have your experts there and to testify. You have presented this same theory of a defense through the proffer with your other experts. The Court’s rejected it. It’s still denied.

From his failure to prepare his expert witnesses, to his failure to follow through with the trial court’s generous leniency concerning offers of proof, Bode committed serious errors in his handling of the expert -witnesses and their testimony in this case.

B. Trial errors

[¶ 17.] Dillon alleges that Bode erred in a number of ways throughout the course of the trial. First, Dillon asserts that Bode failed to properly prepare Dillon and his grandmother for their trial testimony. Second, Dillon cites Bode’s phone call to Dillon’s mother at 6:30 a.m. on the last day of trial asking her to round up witnesses to testify. Third, Dillon points out that Bode repeatedly failed to object to hearsay testimony from the State’s witnesses. Fourth, Dillon argues that Bode failed to impeach L.R. and N.R.’s mother’s testimony that her children were healthy and normal prior to Dillon’s alleged sexual assault. In fact, L.R. and N.R.’s medical records, obtained by Bode before trial, revealed an extensive history that included more than 50 emergency room visits. Bode made no effort to use these medical records for impeachment purposes. All of these examples demonstrate the ineffectiveness of Dillon’s counsel.

[¶ 18.] Possibly the most disturbing trial error concerned Bode’s cross examination of victim N.R., which consisted, in part, of the following disjointed series of questions:

Q. [Bode] Was there a time when all four of you were on the bed?
A. [N.R.] Yes.
Q. Do you know how many times you’ve gone over this interview?
A. No.
Q. Has it been a lot?
A. Yes.
Q. Did he have his glasses on or off? A. Off.
Q. Did [K.D.] cry when he was doing this?
A. No.
Q. Did you cry?
A. No.
THE COURT: Do you have another question, counsel?

The trial court explained its interruption outside of the presence of the jury:

For the record, as regards to the cross examination that just occurred of N.R. Now, Mr. Bode, during the cross examination which took about twenty-five minutes, there were often delays lasting .forty seconds up to a minute, which there was complete silence in the courtroom, which would cause any child or adult a great deal of discomfort. I’m going to direct in your cross examination of the remaining child victims that you have a list of questions that you ask them and that you do not have delays of that length.... I’m going to simply direct that you have a list of questions and that you ask them without that type of forty seconds to a minute delay of complete silence.

The fact that Bode was taking up to a minute between questions is unsettling. There is no reasonable explanation for this type of uncomfortable delay during the cross examination of one of the victims in the case. Notably, Dillon was convicted of all charges relating to this child.

[¶ 19.] Another trial error alleged by Dillon concerned Bode’s cross examination of victim S.R.B. On direct examination, S.R.B. indicated by gesture to the genital area of a diagram of a male body that Dillon had touched her with his penis. However, S.R.B. verbally denied that level of penetration:

Q. [State’s Attorney] What did he touch you with?
A. [S.R.B.] His hands.
Q. Did he touch you with anything else?
A. No.

Bode followed up with the following cross examination of S.R.B.:

Q. [Bode] Did Farrell Dillon’s thing go inside you?
A. [S.R.B.] Yes.
Q. Did it hurt?
A. Yes it did.
* * ⅜
Q. Did all three of you get touched by Farrell?
A. Yes.
Q. Do you remember who got touched first?
A. I did.
Q. Do you remember who got touched second?
A. [K.D.],
Q. And then it was [T.T.]?
A. Yes.

Based on this cross examination, it is difficult to determine who Bode was representing in this case. Notably, Dillon was convicted of all charges relating to S.R.B.

[¶ 20.] Another serious error occurred during Bode’s cross examination of Deb Horan, one of the state’s witnesses in the case. The trial court had entered an order in limine preventing Horan from testifying about the credibility and truthfulness of K.D., one of the victims in the case. During cross examination, Bode elicited testimony from Horan vouching for the credibility and truthfulness of K.D.— the exact testimony the order in limine sought to prevent. Thus, Bode violated a pretrial order that expressly favored his own client.

[¶ 21.] Dillon cites as further evidence of deficient performance Bode’s refusal to put into evidence video tapes, audio tapes, and transcripts of interviews of the child witnessesMctims. Bode repeatedly told the jury that he would be offering these exhibits, but in the end refused to do so because, as he testified at the habeas hearing, “I was going to have to prolong the trial and I felt pressured to get this case done as quickly as possible.” Why Bode would feel pressured to make trial decisions based on judicial economy is a mystery, as is his decision to actually give in to this impulse.

[¶ 22.] The final trial error alleged by Dillon was Bode’s recitation of the wrong burden of proof during his closing argument. Bode told the jury:

Do you know when you’re accused of this crime, when you’re accused, the rules are all different in a rape case. Because now it’s you got a burden to come and disprove it. Come on, disprove it. Disprove it.

The State correctly notes that at another point in the closing argument Bode recited the correct burden or proof. At the very least, however, Bode was sending mixed and confusing signals to the jury about how they were to weigh the evidence in the case.

C. Totality of the circumstances

[¶ 23.] When viewed in the totality of the circumstances, the Court concludes Bode’s performance as counsel was deficient. As Dillon’s expert witness at the habeas hearing, Stanley Whiting, testified, “the biggest prejudicial thing in the case was the failure to put on a defense: just didn’t do it.” Whiting explained:

[W]hat I saw was just a total inability to present a defense from the very beginning of that trial right up through the end when in closing statement comments are made that the State was a bunch of fascists.... And nothing— nothing was talked about the defense of the case. In fact, he hardly even mentioned the fact that ... his client said he didn’t do it. I mean, it was just a terrible defense. I don’t see any other way of reading this transcript. I honest to God don’t.

Whiting concluded that “there was not one thing about that whole record that I saw would any way — any way indicate that Farrell Dillon got a fair trial.” Even the State’s expert Randy Connelly acknowledged that the record was “fraught with a number of those inexplicable and ... misjudging actions” by Bode. Connelly described certain actions of Bode as “bizarre,” “illogical,” “inappropriate,” “misprioritiz[ed],” “over the line,” and “unethical.” Based on his review of the record, Connelly could conclude only that Dillon had received merely a “minimally fair” trial.

[¶ 24.] Whether Dillon’s trial was even ‘minimally fair’ is the next question as Dillon’s trial counsel was clearly deficient.

ISSUE TWO

[¶ 25.] Was Dillon prejudiced by Bode’s deficient representation?

[¶ 26.] To satisfy Dillon’s burden of proving ineffective assistance of counsel, he must prove not only that his representation was deficient, but also that he suffered prejudice as a result of it. Denoyer, 2005 SD 43, ¶ 19, 694 N.W.2d at 855. As stated earlier, prejudice exists only when “ ‘there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.’ ” Owens, 2007 SD 3, ¶ 9, 726 N.W.2d at 615 (quoting Strickland, 466 U.S. at 694, 104 S.Ct. at 2068). “ ‘A reasonable probability is a probability sufficient to undermine confidence in the outcome.’” Id.

[¶27.] Bode’s performance as counsel in this case was substandard. Dillon has cited a litany of examples of Bode’s deficient performance, any number of which could have influenced the result of his trial. Under these circumstances, we believe that Dillon was obviously prejudiced by Bode’s representation. Our confidence in the outcome of Dillon’s trial is sufficiently undermined to warrant a finding of prejudice. Dillon has sustained his burden of proving that he was prejudiced as a result of Bode’s deficient representation.

[¶ 28.] Interestingly, although the ha-beas court ultimately did not find that Dillon’s trial counsel was ineffective, it did implicitly acknowledge that Bode’s performance prejudiced Dillon. The habeas court found that “Bode errored [sic] in a number of ways” but “most of those errors have not been shown to have in any significant way affected the outcome of the trial.” (emphasis added). We are left to wonder which errors the habeas court found to be prejudicial, but the clear implication is that some of Bode’s errors did affect the outcome of Dillon’s trial. This presumes both deficient performance and prejudice, the two elements Dillon must demonstrate to prove ineffective assistance of counsel. The habeas court’s findings belie its ultimate conclusion.

CONCLUSION

[¶ 29.] To prove ineffective assistance of counsel, a habeas petitioner must satisfy the two pronged test established in Strickland, which requires the petitioner to prove both that his counsel’s performance was deficient and also that he suffered prejudice as a result. See Strickland, supra. The United States Supreme Court has stated that the principles announced in Strickland “do not establish mechanical rules.” Strickland, 466 U.S. at 696, 104 S.Ct. at 2069. The Supreme Court continued:

Although those principles should guide the process of decision, the ultimate focus of inquiry must be on the fundamental fairness of the proceeding whose result is being challenged. In every case the court should be concerned with whether, despite the strong presumption of reliability, the result of the particular proceeding is unreliable because of a breakdown in the adversarial process that our system counts on to produce just results.

Id.

[¶ 30.] In light of the circumstances of this case, we believe that the fundamental fairness of Dillon’s trial was compromised. Dillon’s trial counsel was deficient, which resulted in prejudice to Dillon. Both prongs of the Strickland test are satisfied. Dillon has sustained his burden of proving ineffective assistance of counsel.

[¶ 31.] We reverse the order of the ha-beas court and remand with instructions to enter a writ directing the state to retry Dillon within a reasonable time or discharge him.

[¶ 32.] GILBERTSON, Chief Justice, and SABERS, ZINTER and MEIERHENRY, Justices, concur.

[¶ 33.] WILBUR, Circuit Judge, for KONENKAMP, Justice, disqualified.

      . The two counts of third degree rape were dismissed prior to trial.

      . Dillon raised the ineffective assistance of counsel argument in his original appeal, but this Court declined to hear the issue on the basis that "[t]he preferred arena for an ineffective assistance claim is a habeas corpus proceeding.” Dillon, 2001 SD 97, ¶ 28, 632 N.W.2d at 48.

      . Two years after Dillon’s trial, Bode was diagnosed with bi-polar or manic-depressive disorder. He required several months of inpatient treatment to deal with his mental illness, and at the time of the habeas hearing he was continuing to participate in out-patient therapy.
      The Court notes that bi-polar disorder is not a sudden onset condition. Instead, it develops over time. The lower court itself elicited this testimony from Ertz during the habeas hearing. Thus, while this Court cannot be certain that Bode was suffering from bi-polar disorder at the time of Dillon's trial, there is reason to be concerned. Our finding of ineffective assistance in this case is founded solely on the deficiency of Bode’s pretrial and trial performance and not on speculation about his mental health'. Clearly, however, a lawyer suffering from a debilitating mental illness does not provide the type of "assistance” envisioned by the Sixth Amendment. To be effective, a lawyer’s performance must be " 'within the realm of competence required of members of the profession.’ ” Sprik, 1997 SD 134, ¶ 24, 572 N.W.2d at 829 (quoting Roden, 431 N.W.2d at 667 n. 1). Here, we cannot even be certain that Bode was competent in a general sense, let alone competent to provide legal representation in a serious criminal matter.

      . The Court notes that, three years after his participation in Dillon’s trial, Bode’s license to practice law was suspended due to disability. One year later he was disbarred.