Opinion
Case No. 98 C 1462
March 29, 1999
MEMORANDUM OPINION AND ORDER
The genesis of this lawsuit is a fire that occurred at the home of Sungil Lee on November 4, 1996. As a result of the damage resulting from that fire, plaintiff Allstate Insurance Company ("Allstate"), Mr. Lee's insurer, paid to or on behalf of Mr. Lee the sum of $335,330.15. Allstate has brought this subrogation lawsuit against defendant, Maytag Corporation ("Maytag"), seeking recovery of that sum, on the theory that the fire was caused by a defect in a Jenn-Air countertop range sold by Maytag. The matter is set for a bench trial to begin on May 17, 1999.
Presently before the Court are three motions in limine. One of plaintiff's motions in limine (doc. # 34-1) seeks to bar defendant from offering any testimony, through defendant's own witnesses, that Mr. or Mrs. Lee carelessly or negligently failed to maintain or clean the cooktop range or left the cooktop range on. In addition, both parties have filed motions in limine seeking to bar certain expert testimony. Plaintiff's motion in limine seeks to bar defendant's expert, James Porter, from offering any opinions or conclusions regarding the cause and origin of the fire at the Lee residence (doc. # 33-1). Defendant's motion in limine seeks to bar one of plaintiff's experts, Richard Hansen, from offering any opinion testimony whatsoever (doc. # 30-1). The Court's rulings on these motions in limine are set forth below.
I.
Plaintiff's motion in limine seeking to bar defendant from offering testimony that Mr. and Mrs. Lee were careless or negligent is premised on the fact that defendant failed to produce in discovery any evidence to support an assertion of negligence or carelessness by the Lees. Plaintiff claims that defendant should not be allowed to offer at trial that which defendant failed to disclose in discovery. Defendant agrees that it did not disclose in discovery any such evidence, but nonetheless asserts that this should not preclude defendant from questioning plaintiff's witnesses about whether the cooktop range had been properly installed, used, maintained and cleaned.
Plaintiff's motion and defendant's response are ships passing in the night that do not squarely join the issue. Plaintiff's motion seeks to bar "testimony by witnesses for the Defendant;" however, defendant's response does not assert a right to question defense witnesses about the Lee's purported carelessness or negligence, but instead asserts that it should be able to question plaintiff's witnesses about that subject. Thus, when the dust settles, it appears that defendant does not seek to inject through its own witnesses testimony about any purported carelessness or negligence by the Lees. The only issue is whether defendant may cross-examine plaintiff's witnesses about that subject.
The Court rules that defendant may not do so, unless plaintiff opens the door to such inquiry through its direct examination of any of its witnesses. The Court expresses no view on defendant's suggestion that plaintiff itself will have to offer evidence of plaintiffs' proper installation, use and maintenance of the countertop range in order to carry its burden of proof. The Court holds only that defendant may not broach that subject on cross-examination of plaintiff's witnesses, unless plaintiff first opens that issue during direct examination.
II.
The parties' respective motions in limine to bar expert testimony each assert that the proffered expert testimony being attacked fails to satisfy the admissibility requirements of Federal Rule of Evidence 702, as interpreted by the United States Supreme Court in Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993). The Supreme Court's decision last week in Kumho Tire Co. v. Carmichael, 1999 WL 152275, *5 (March 23, 1999), has laid to rest any doubt about the applicability of Daubert here, holding that the underlying principles of Daubert apply not only to scientists but also to expert opinion testimony "based on `technical' and `other specialized' knowledge."
In Daubert, the Supreme Court established a framework for determining whether proffered expert testimony meets the standard established by Rule 702. As interpreted by the Seventh Circuit, Daubert requires a two-step analysis: first, the District Court must determine whether the expert testimony is reliable, and second, the Court must determine whether the expert testimony would assist the trier of fact in understanding the evidence or in determining a fact in issue. Cummins v. Lisle Industries, 93 F.3d 362, 367-68 (7th Cir. 1996); see also Roback v. VIP Transport, Inc., 1994 WL 548197 (N.D. Ill. 1994). The proponent of expert testimony bears the burden of establishing its admissibility. Bradley v. Brown, 852 F. Supp. 690, 697 (N.D. Ind.), aff'd, 42 F.3d 434 (7th Cir. 1994).
In considering the reliability prong of the Daubert analysis, the Court must consider whether the principles and methodology underlining the testimony are valid. As the Seventh Circuit has put it in the context of scientific evidence, the Court "must determine whether the evidence is genuinely scientific, as distinct from being unscientific speculation offered by a genuine scientist." Cummins, 93 F.3d at 368 ( quoting Rosen v. Ciba-Geigy Corp., 78 F.3d 316, 318 (7th Cir. 1996)). If the opinion is not squarely grounded in the principles and methodology of the relevant discipline, the opinion is "inadmissible no matter how imposing [the] credentials of the proffered expert." Rosen, 78 F.3d at 318-19 (opinion testimony "expressing what may be an insightful, even an inspired, hunch" was properly excluded because it "lacks scientific rigor").
Defendant suggests that the four specific factors discussed in Daubert (testing, peer review, error rate, and general acceptance) all must invariably be considered in determining the question of reliability. However, these four factors do not constitute an independent litmus test. "As the Court stated in Daubert, the test of reliability is `flexible,' and Daubert's list of specific factors neither necessarily nor exclusively applies to all experts or in every case." Kumho Tire Co., 1999 WL 152275, *3. Thus, "the law grants a district court the same broad latitude when it decides how to determine reliability as it enjoys in respect to its ultimate reliability determination." Id.
As part of the reliability prong, the Court also must consider whether the individual who would offer the opinion testimony is an "expert" within the meaning of Rule 702. The concept of an "expert" under Rule 702 is a broad one, as is plain from the language of Rule 702, which defines an expert as any witness qualified "by knowledge, skill, experience, training or education." The commentary to Rule 702 confirms that "the expert is viewed, not in a narrow sense, but as a person qualified by `knowledge, skill, experience, training or education.' Thus, within the scope of the rule are not only experts in the strictest sense of the word, e.g., physicians, physicists, and architects, but also the large group sometimes called `skilled' witnesses, such as bankers or landowners testifying to land values."
Just as the fact that a proffered expert may have impressive credentials is no guarantee that his or her opinion will be admissible, the fact that a proffered expert may lack the most impressive or extensive credentials is not an insuperable bar to such an individual offering expert opinion under Rule 702. Questions about the qualifications of an expert witness should be considered in assessing the credibility and weight of the opinions offered, and should not serve to exclude them altogether. Liquid Air Corp. v. Rogers, 834 F.2d 1297, 1308 (7th Cir. 1987). The trial court's determination will be reversed only if it is manifestly erroneous. United States v. Lundy, 809 F.2d 392, 394 (7th Cir. 1987).
With these principles in mind, the Court now turns each of the motions in limine to bar expert testimony.
A.
Plaintiff's motion in limine seeks to bar defendant's expert, Mr. Porter, from testifying to any opinions and conclusions regarding the point of origin of the fire; the cause of ignition of the fire; the spread of the fire; and the recognition and significance of burn patterns and other indicia relating to the point of origin, cause of origin and spread of the fire. In response, defendant concedes that Mr. Porter is not generally an expert in fire cause and origin investigation. Thus, defendant does not seek to offer Mr. Porter to testify about where the fire did originate. However, defendant argues that by virtue of his many years of experience and his familiarity with design of the cooktop range and the technical characteristics of its components, Mr. Porter is qualified to express an opinion where the fire did not originate: specifically, in the cooktop range.
There is no dispute that Mr. Porter has been employed at Maytag (or its predecessor) for some twenty years; that he has been involved in the design and testing of cooktop ranges from Maytag; that he has expertise in mechanical engineering and is knowledgeable about the electrical components' specifications for the cooktop range; that he was responsible for securing Underwriter Laboratories approval for cooktop ranges; and that he witnessed testing done with respect to cooktop ranges. Indeed, plaintiff concedes that Mr. Porter is knowledgeable about "the production of the Jenn-Air Cooktop Range by defendant Maytag, its components, [and] the intent of the design of the components and assembly of this appliance" (Pl.'s First Motion In Limine, 9).
Plaintiff's motion makes much of Mr. Porter's lack of formal education and licensure, and his lack of association with or knowledge of various investigative and standard setting organization (Pl.'s First Motion In Limine, 6-9). While these matters are fair game for cross-examination, they do not render Mr. Porter's testimony inadmissible ab initio. In so finding, however, the Court must limit Mr. Porter's opinions to the boundaries of his expertise. An "expert's opinion is helpful only to the extent that expert draws on some special skill, knowledge, or experience to formulate that opinion." United States v. Benson, 941 F.2d 598, 604 (7th Cir. 1991). As defendant concedes, Mr. Porter is not generally an expert in fire cause and origin investigation; the expertise he proposes to bring to bear in this case is his particularized knowledge about the cooktop range. Accordingly, any opinions that Mr. Porter offers that the fire did not originate in the cooktop range must be limited to his knowledge about the cooktop range. Thus, Mr. Porter may offer the opinion that the fire did not originate in the cooktop range, but he may not offer an opinion as to where outside the range the fire originated or its cause of ignition. In explaining his opinion, Mr. Porter may point to observations he made concerning the cooktop range and its components, but not to other structures or components outside the cooktop range.
B.
Just as plaintiff seeks to bar defendant's expert, Mr. Porter, from expressing the opinion that the fire did not originate in the cooktop range, defendant seeks to bar plaintiff's expert, Mr. Hansen, from expressing the contrary opinion that this is precisely where the fire originated. Defendant offers two arguments in support of its motion: (1) that Mr. Hansen's opinion is mere speculation because he did no testing in order to validate various prongs of his theory, and (2) that certain opinions expressed in Mr. Hansen's supplemental report, served four days before the close of discovery, came too late and should not be permitted. The Court disagrees with both arguments.
First, the mere fact that no testing was done is not an automatic bar to the admissibility of an expert opinion. The Seventh Circuit has stated that while testing is often important, particularly in alternate design cases, testing is not "an absolute prerequisite to the admissibility of expert testimony." Cummins v. Lyle Industries, 93 F.3d 362, 369 (7th Cir. 1996). The key inquiry is, irrespective of whether testing is done, whether the expert is testifying with the "same standards of intellectual rigor that are demanded in their professional work." Id. at 369. Moreover, a party who seeks to exclude expert testimony on the ground of failure to conduct testing has the burden of explaining what tests should have been run, and what would have been accomplished by that testing. "A litigant that wants a court of appeals to set aside a district judge's decision to admit expert testimony has to do more than appeal to a lawyer's sense of how science should be done." DePaepe v. General Motors Corp., 141 F.3d 715, 720 (7th Cir. 1998).
Here, defendant recites a litany of testing that it claims Mr. Hansen should have done but failed to do (Def.'s Motion to Bar Opinion Testimony of Richard Hansen, 11-13). Defendant criticizes Mr. Hansen for failure to do testing to determine how a wire which could have functioned properly for six years suddenly, through a defect, could arc; how that could then cause an eruption that could fling molten metal through a burner box to the wiring box beneath it; how that molten metal could then escape from the wiring box to ignite the bottom of the range cabinet; and that the range would not have continued to have a power source if the fire, as Mr. Porter opines, had originated somewhere other than the cooktop range. However, defendant has not explained why this level of testing should be necessary here, or what one would expect to find from the testing.
Plaintiff also asserts that Mr. Hansen cannot use "personal observation" to establish a methodology (Def.'s Motion to Bar, 11). The Court does not believe that Mr. Hansen is seeking to create a methodology here. Rather, Mr. Hansen is offering an opinion based on deduction from certain facts and his own expertise; much as Mr. Porter is offering a different opinion, based on his own deduction from the facts he has observed and his expertise with the cooktop range. As the Supreme Court has just reiterated in Kumho Tire Co., "no one denies that an expert might draw a conclusion from a set of observations based on extensive and specialized experience." 1999 WL 152275, *8.
The Court notes that neither Mr. Hansen nor Mr. Porter has engaged in testing to confirm their deductions about what occurred (which is a point that may be explored in their cross-examinations). Indeed, the criticisms leveled by defendant seek to apply a standard to Mr. Hansen that, if applied to Mr. Porter, likely would bar his testimony as well. Defendant's criticisms of Mr. Hansen's lack of testing do not, in the Court's view, render Mr. Hansen's opinions inadmissible. Second, defendant asserts that even if these opinions were reliable, they were revealed too late in the day for plaintiff to be allowed to offer them. The Court disagrees. The supplemental report, dated January 4, 1999, was delivered to defense counsel on January 11, 1999. That supplemental opinion did not change the core of the opinions expressed by Mr. Hansen in the reports of July 21 and November 10, 1997: that the fire originated in the cooktop range as a result of arcing in the cooktop wiring. The supplemental report did contain expanded information in support of that opinion, but the Court finds that this additional information was in rebuttal to the opinions expressed by Mr. Porter in his Rule 26 Report and his deposition, which took place on December 21, 1998. The Court notes that one reason that his supplementation came late in the day was because Mr. Porter's original report was deemed inadequate, and thus his own expanded Rule 26 expert report and deposition themselves did not come until late in the day.
The Court has reviewed the authorities cited by defendant in support of its argument that Mr. Hansen's opinion does not meet the reliability prong required by Rule 702, and finds them inapposite. Those cases involved novel assertions which lacked either a "theoretical" basis or any "experimental, statistical or other scientific data." Rosen v. Sciba-Geigy Corp., 78 F.3d 316, 319 (7th Cir. 1996) (affirmed exclusion of opinion testimony that plaintiff's heart attack was precipitated by a nicotine overdose resulting from wearing a nicotine patch and smoking at the same time); see also, Kirstein v. Parks Corporation, 159 F.3d 1065 (7th Cir. 1998) (affirmed exclusion of expert testimony that several products combined together to increase the severity of burns, where the opinions lacked any theoretical basis for the opinion or supporting data); Deimer v. Cincinnati Sub-Zero Products, Inc., 58 F.3d 341 (7th Cir. 1994) (affirmed exclusion of unsupported expert testimony that a manufacturer's power strap cord could come loose from a machine based on the matter which it was affixed); Grant v. Chemrex, Inc., 1997 WL 223071 (N.D. Ill.) (barred expert testimony that plaintiff has suffered a toxic reaction from inhaling a floor sealant, where the expert lacked information concerning the level of chemical exposure that plaintiff's other experts agreed was necessary to render a competent medical opinion); Engel v. Corning, Inc., 1997 WL 51606 (N.D. Ill.) (excluded expert testimony that there was a defect in the pan that gave it a "propensity to explode," where the expert offering the opinion had no knowledge about the composition of the materials of the pot, the break strength of the pot, the forces necessary to cause a fracture). By contrast, the expert opinion that Mr. Hansen proposed to offer, like that of Mr. Porter, is based on deductions from various known technical facts which appear to have at least a theoretical basis.
Moreover, the Court finds no prejudice from the timing of Mr. Hansen's report. The supplemental report itself was sufficiently detailed to permit defense counsel to understand the basis of Mr. Hansen's analysis, even without a deposition. See 1993 Advisory Committee Comments to Rule 26(a)(2) ("in many cases the report may eliminate the need for a deposition"). In any event, Mr. Hansen was produced for deposition on January 15, 1999, and defendant had ample opportunity to explore any questions about the supplemental report at that time. And defendant's counsel availed himself of that opportunity, devoting some 50-plus pages to an examination of Mr. Hansen's supplemental report. Although defendant's motion conclusorily states that defendant lacked adequate time to prepare in order to properly explore the supplemental report in Mr. Hansen's deposition, that is not what defense counsel said at the deposition. See Hansen Dep. 4-5 ("I do appreciate getting [the supplemental report] in time for me to prepare for the deposition"); 129 ("I want to go through [the supplemental report] in detail"). While defense counsel complained about the timing of the report at the outset of the deposition, he offered no assertion of any prejudice at that time. Even now, defendant's motion in limine, filed two months after the deposition, offers no details as to precisely what defendant would have been able to explore with more lead time. Had defendant truly been prejudiced in its ability to depose Mr. Hansen, we would have expected to have heard about it sooner, or at least after two months, to have received more details about the alleged prejudice — but defendant has provided neither.
Although defendant claims that the timing of the supplemental report precluded it from retaining an expert to rebut Mr. Hansen's opinions, the Court finds that much of the supplemental report is merely a rejoinder to opinions by Mr. Porter. Mr. Hansen's opinion about the arcing of the wire was first presented in July 1997; had defendant believed that expert testimony was necessary to rebut that point, defendant had ample opportunity to obtain it. The Court is mindful that defendant's current counsel did not enter the case until December 17, 1998, and thus is left with the consequences of certain choices made by predecessor counsel — such as, the choice not to utilize additional experts. However, the Court finds that the timing of Mr. Hansen's report does not provide a basis to allow defendant to bar Mr. Hansen's testimony.
The cases that defendant cites in support of this prong of its motion in limine do not dictate a different result. In Salgado v. General Motors Corp., 150 F.3d 735 (7th Cir. 1998), the expert testimony was excluded where plaintiff failed to file a report after being specifically warned that if the report was not filed on time the case would get "dunked" and the plaintiffs would "lose." No such warning was ever sought or given here. In Smith v. Union Pacific Railroad Co., 168 F.R.D. 626 (N.D. Ill. 1996), the Court barred expert testimony where the report was filed on the date of discovery closed, thereby depriving the defendant of the opportunity of deposing the expert; here, by contrast, defendant in fact deposed Mr. Hansen at length about his opinions. And, in Kirstein, the appeals court affirmed the exclusion of a second expert's report that, unlike Mr. Hansen's supplemental report, was filed after the close of discovery.
CONCLUSION
For the foregoing reasons, the Court GRANTS plaintiff's second motion in limine (doc. # 34-1); GRANTS IN PART AND DENIES IN PART plaintiff's first motion in limine (doc. # 33-1), and DENIES defendant's motion to bar opinion testimony of Richard Hansen (doc. # 30-1). In ruling on the motions in limine regarding expert testimony, the Court expresses no view as to the ultimate merit of Mr. Porter's and Mr. Hansen's respective opinions, a matter which will be resolved at trial. The matter is set for a final pretrial conference in open court on Monday, May 3, 1999 at 9:00 a.m.