John Z. Lee, United States District Judge
Maximilian Padilla ("Max") died at the age of three from strangulation after becoming entangled in the metal beaded cord used to operate the vertical window blinds in his bedroom. The window blind was manufactured by Defendant Hunter Douglas Window Coverings, Inc. ("Hunter Douglas") Plaintiff Jose Padilla, on behalf of his son, brings this action against Hunter Douglas, asserting claims of common law negligence and breach of warranty. In anticipation of trial, each party has offered two experts: Plaintiff has offered Stuart Statler and Robert Wright; and Defendant has offered Joseph Sala and Rose Ray. Each party has also filed motions to exclude the experts offered by the other.
After the parties had submitted their briefs, the Court held a hearing on August 20 and August 21, 2013. Wright and Sala testified in person at that hearing, and the attorneys were given an opportunity to argue all four motions. For the reasons stated herein, the Court grants Defendant's motion to exclude the testimony of Stuart Statler and grants in part and denies in part its motion to exclude the testimony of Robert Wright. The Court also grants in part and denies in part Plaintiff's motions to exclude the testimony of Joseph Sala and the testimony of Rose Ray.
The admissibility of expert testimony is governed by Federal Rule of Evidence 702 ("Rule 702) and the Supreme Court's seminal case Daubert v. Merrell Dow Pharms. Inc., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993). By its terms, Rule 702 allows the admission of testimony by an "expert," someone with the requisite "knowledge, skill, experience, training, or education," to help the trier of fact "understand the evidence or determine a fact in issue." Fed.R.Evid. 702. Experts are only permitted to testify, however, when their testimony is (1) "based upon sufficient facts or data; [2] the testimony is the product of reliable principles and methods; and [3] the witness has applied the principles and methods reliably to the facts of the case." Id.
Before admitting expert testimony, district courts employ a three-part analysis: (1) the expert must be qualified as an expert by knowledge, skill, experience, training, or education; (2) the expert's reasoning or methodology underlying his testimony must be scientifically reliable; and (3) the expert's testimony must assist the trier of fact in understanding the evidence or to determine a factual issue. Bielskis, 663 F.3d at 893-94. The purpose of the Daubert inquiry is to scrutinize the proposed expert witness testimony to determine if it has "`the same level of intellectual rigor that characterizes the practice of an expert in the relevant field' so as to be deemed reliable enough to present to a jury." Lapsley, 689 F.3d at 805 (quoting Kumho Tire Co., 526 U.S. at 152, 119 S.Ct. 1167). The proponent of the expert bears the burden of demonstrating that the expert's testimony would satisfy the Daubert standard by a preponderance of the evidence. Lewis v. CITGO Petroleum Corp., 561 F.3d 698, 705 (7th Cir.2009). With these standards in mind, we turn to the parties' motions.
Stuart Statler was appointed to serve as a Commissioner on the United States Consumer Product Safety Commission ("CPSC") from August 1979 through May 1986. During his tenure, he also served as the acting-Chairperson and Vice-Chair of the CPSC. Def. Statler Br., Ex. A ("Statler Report") at 3. Although the precise contours of his opinions are not clear from his periphrastic expert report, it appears that Statler will testify that: the window blind at issue was defectively designed; Hunter Douglas knew of the "foreseeable risk of children being strangled to death" by the looped cords; a safer alternative design was economically practical and technologically feasible at the time of the incident; Hunter Douglas should have affixed a tag warning users of the risks; and Hunter Douglas acted unreasonably and without the exercise of due care by ignoring the attendant risks. See id. at 20-21.
Defendant Hunter Douglas now seeks to preclude Statler from testifying as an expert at trial. In its motion, Defendant contends that, despite Statler's tenure at the CPSC, he is not qualified to testify as an expert regarding window blind design and safety. Defendants also argue that Statler's opinions on this topic, as well as his opinion that Hunter Douglas acted unreasonably as a window blind manufacturer, fall short of the requirements of Daubert. Because the Court agrees on both counts, Defendant's motion to exclude Statler is granted.
Defendant first argues that Statler is unqualified to testify as an expert
Turning first to his opinions regarding the design of the corded window blinds, as Defendants point out, Statler himself admitted during his deposition that he has no practical experience or training in the field of window blind design. Def. Statler Br., Ex. B ("Statler Dep.") 39:1-3. Nor does he have any training as an engineer, which he concedes would be necessary for him to understand how the physical mechanisms to open and close window blinds operate.
Id. 39:4-14. Statler also conceded that he has no experience designing any type of consumer product, let alone window blinds. Id. 54:18-20. Nor did he conduct any studies or tests to support his opinion that the blinds were defectively designed. Id. 41:18-23.
Invoking Kumho Tire Co., v. Carmichael, 526 U.S. 137, 119 S.Ct. 1167, 143 L.Ed.2d 238 (1999), Plaintiff nevertheless maintains that Statler is qualified to offer his opinions "based on his extensive experience dealing with consumer product safety," including those related to window blind safety. Pl. Statler Resp. at 10. For instance, Plaintiff contends that Statler "was actively involved in the issue of window blind cord strangulation hazards by encouraging organizations such as the American Window Covering Manufacturers Association ... and the manufacturers of blinds" during his tenure at the CPSC. Id. at 9. Plaintiff also states that Statler "directed the Commission staff to work with the manufacturers and the [Association]." Id. But this argument is unpersuasive.
Plaintiff is correct that the CPSC studied incidents of child strangulation associated with looped window blind cords during Statler's tenure at the CPSC, see Statler Report at 9-10, and that CPSC staff reported their findings to the Commissioners. See Statler Dep. 38:1-15. But, under Rule 702 and Daubert, the Court must decide "whether this particular expert had sufficient specialized knowledge to assist the jurors in deciding the particular issues in this case." Kumho, 526 U.S. at 156, 119 S.Ct. at 1178 (internal quotations omitted; emphasis added). The crux of this dispute rests upon whether the window blind cord that resulted in
Dhillon v. Crown Controls Corp., 269 F.3d 865 (7th Cir.2001), is instructive. In Dhillon, the Seventh Circuit enumerated a number of factors that an expert should consider when opining that a design is defective and an alternative available, including: "the degree to which the alternative design is compatible with existing systems...; the relative efficiency of the two designs; the short- and long-term maintenance costs associated with the alternative design; the ability of the purchaser to service and to maintain the alternative designs; the relative cost of installing the two designs; and the effect, if any, that the alternative design would have on the price of the machine." Id. at 870 (internal quotations omitted). The court further observed that "many of these considerations are product- and manufacturer-specific and cannot be reliably determined without testing." Id. Here, the record fails to establish that Statler developed any particular expertise in window blind cord design or the availability of viable alternatives. Instead, Statler's experience with window blinds is limited to his general experience as a CPSC Commissioner from 1979 to 1986 and those instances when the Commissioners were "informed" by CPSC staff about documented incidents involving strangulation of children by window blind cords.
The Supreme Court's opinion in Kumho does not mandate a different result. The expert in Kumho, like Statler, testified as to the existence of a defective design (automobile tires, in that case). But, unlike Statler, the expert in Kumho had a masters degree in mechanical engineering and had worked at Michelin America, Inc., on tire design for ten years. Kumho, 526 U.S. at 153, 119 S.Ct. at 1176. Statler, on the other hand, has absolutely no engineering or design background and only generalized exposure to window blind incidents while at the CPSC.
Plaintiff also argues that other federal courts have permitted Statler to testify as an expert, and that this Court should as well. But this argument too is unavailing. In one of the cases cited by Plaintiff, Brown v. Overhead Door Corp., Case No. 06-C-50107, 2008 WL 5539388 (N.D.Ill.
On the other side of the ledger is Hayes v. MTD Prod., Inc., 518 F.Supp.2d 898 (W.D.Ky.2007). The plaintiff in Hayes was injured while using a zero turn radius lawn mower. He offered Statler as an expert to opine that defendant's sales of the lawn mower without a rollover protection system was unreasonable and "flew in the face of any viable product safety program." Id. at 899. The defendant asked the court to exclude Statler's testimony, and the court agreed, stating:
Id. at 901. Here too, although Statler's professional pedigree is impressive, there is no evidence that he is a recognized expert in window blind design or has any particular expertise in that field. Accordingly, the Court bars Statler from offering his opinion as to the reasonableness of the window blind design at issue and the availability of design alternatives.
As for Statler's opinion that the warning labels on the window blinds were inadequate, the Court notes that Statler appears to have some experience evaluating and designing warning labels for consumer products during his tenure as a consultant with A.T. Kearney from 1986 to 1987 and as a product safety and regulatory consultant from 1987 to the present.
In short, Statler's professional background, while impressive, does not render him an expert capable of assessing the safety and design of Hunter Douglas window blinds, the adequacy of the warning labels on the blinds, or the costs and benefits of implementing any available alternatives. From this, it also follows that Statler is equally unqualified to offer an opinion as to whether Hunter Douglas' actions with respect to the corded window blinds and labels were unreasonable, devoid of due care, or contrary to its "safety responsibilities." Statler Report at 22.
Even assuming, arguendo, that Statler is qualified to offer the opinions that he gives, the Court finds his opinions unreliable under Rule 702 and Daubert and precludes his testimony on this independent basis. In assessing the reliability of an expert's testimony, Rule 702 requires the district court judge to evaluate whether it "is based on a correct application of a reliable methodology and that the expert considered sufficient data to employ the methodology." Stollings v. Ryobi Tech., Inc., 725 F.3d 753, 766 (7th Cir.2013). Further, "Daubert offers a non-exclusive list of factors to aid judges in determining whether [a] particular expert opinion is grounded in reliable scientific methodology. Among the factors articulated are: (1) whether the proffered theory can be and has been tested; (2) whether the theory has been subjected to peer review; (3) whether the theory has been evaluated in light of potential rates of error; and (4) whether the theory has been accepted in the relevant scientific community.'" Winters v. Fru-Con Inc., 498 F.3d 734, 742 (7th Cir.2007) (quoting Dhillon, 269 F.3d at 869). District judges have "considerable leeway in deciding in a particular case how to go about determining whether particular expert testimony is reliable." Kumho, 526 U.S. at 152, 119 S.Ct. 1167. In this case, Statler has failed to demonstrate
First, Statler admits that he has not performed any tests related to the safety aspects of corded window blinds. Statler Dep. 41:18-23. Nor did he analyze any of the factors involved in window blind design. Id. 39:4-11. In an apt illustration, Statler testified that a break-away window blind cord was a safer alternative design to the traditional corded one at issue here, but he did no evaluation of how the breakaway window blind cord would actually affect the operation and mechanics of the window blinds. Id. 129:2-8. Statler's failure to test the alternative break-away window blind cord is particularly troublesome because "`[i]n alternative design cases, [the Seventh Circuit has] consistently recognized the importance of testing the alternative design'" as a factor that the district court should consider in evaluating the reliability of the proposed expert testimony. Winters, 498 F.3d at 742 (quoting Dhillon, 269 F.3d at 870.) See also Cummins v. Lyle Indust., 93 F.3d 363, 368 (7th Cir.1996) ("Our cases have recognized the importance of testing in alternative design cases."). In much the same way, Statler seeks to testify that the warning labels on the subject window blinds were inadequate; yet, he did not consider any empirical information to support his conclusion. Statler Dep. 136:17-137:9. Indeed, when asked how he would have designed the warning label, Statler was completely unprepared to propose one. Id. 212:4-10.
In response, Plaintiff strenuously contends that "Statler is not offering any of these opinions as a scientific expert" but as a "warnings and safety expert" based upon his experience with product safety risks and "his specialized knowledge as to how manufacturers can and should act forcibly and responsibly to reduce or eliminate these hazards." Pl. Statler Resp. at 5. In so doing, Plaintiff attempts to distinguish between a "scientific expert," whose testimony is "subjected to thorough scientific inquiry," and an "expert with `specialized knowledge' who can assist the trier of fact." Id. at 11. Using this logic, Plaintiff argues that Statler has demonstrated "professional rigor" by conducting extensive relevant research and using his significant practical experience to render his conclusions in this case." Id. at 12. But this argument misses the mark.
As an initial matter, Plaintiff's suggestion that the reliability of "non-scientific" testimony should be assessed by a less stringent standard than scientific testimony is misplaced. Indeed, the Supreme Court in Kumho held the opposite, extending the underpinnings of Daubert to "non-scientific" expert testimony. See Kumho, 526 U.S. at 149, 119 S.Ct. at 1175 ("We conclude that Daubert's general principles apply to the expert matters described in Rule 702."). See also Cummins, 93 F.3d at 367 n. 2 ("The basic tasks of the district court remains essentially the same — to ensure that the evidentiary submission is of an acceptable level of `evidentiary reliability.'"); Dahlin v. Evangelical Child and Family Agency, No. 01-CV-1182, 2002 WL 31834881, at *7 (N.D.Ill.Dec. 18, 2002) (noting that, under Kumho, the "characterization of testimony as `scientific' or `non-scientific' ... does not govern the applicability of Daubert"). "The objective of that [gatekeeping] requirement is to ensure the reliability and relevancy of expert testimony. It is to make certain that an expert, whether basing testimony upon professional studies or personal experience, employs in the courtroom the same level of intellectual rigor that characterizes the practice of an expert in the relevant field." Kumho, 526 U.S. at 152, 119 S.Ct. at 1176.
Perhaps mindful of this hurdle, Plaintiff attempts to give some substance to Statler's methodology by citing to twelve factors that Statler himself lists as "critical considerations" in determining the soundness of a product's design. See Pl. Statler Resp. at 12-13; Statler Report at 7-8. Of those factors, however, Statler himself acknowledges that he failed to evaluate a number of them, including the functionality of alternative designs, how the alternative design(s) would affect the product's consumers, as well as the functionality and utility of the subject window blinds. See Statler Dep. 129:2-8; 41:18-23.
In the end, it is apparent that Statler's methodology consisted only of reviewing some government publications, a limited collection of documents from this case, and declaring his opinions relying upon nothing but his "extensive" professional experience. He conducted no formal tests or reviewed any empirical data regarding the functionality, technological availability, economic feasibility, and consumer marketability of the corded window blind design as compared to alterative designs.
For the reasons discussed above, Statler may not testify that the corded window blinds at issue suffered from a design defect, that other alternative designs were reasonably available, and that the design of warning labels on the blinds was inadequate. Statler also opines that Hunter Douglas acted unreasonably and ignored its corporate responsibility by knowingly selling defective window blinds with inadequate warning labels. But because these opinions are predicated upon Statler's opinions as to the design of the blinds and labels, they are similarly excluded. That said, Defendant offers yet another argument to exclude Statler's opinion about Hunter Douglas. According to Defendant, much of Statler's statements as to Hunter Douglas' actions are statements of law and, therefore, inappropriate for expert testimony. The Court agrees that these opinions also are inadmissible.
As a preliminary matter, the Court notes that even a casual reading of Statler's expert report reveals that it "reads less like an expert's unbiased assessment and more like counsel's closing argument." Hayes, 518 F.Supp.2d at 901. In one of many illustrations, Statler remarks, "How many youngsters must suffer entanglement deaths before a manufacturer of looped-cord vertical blinds, or the industry association, acts forcefully to address or eliminate such an insidious hazard?" Statler Report at 20. He continues, "There is no tragedy more jarring than the sudden and needless death of a child. Hunter Douglas knew, over an extended period of time, that a
First, it is apparent that Statler's conclusion as to Hunter Douglas' "knowledge" is based only upon his review of CPSC reports, many of which were issued after Statler had left the agency, as well as his reading of the Hunter Douglas depositions in this case. The Court is not persuaded based on the record that Statler is in a better position than the jury to assess Hunter Douglas' subjective intent. In fact, according to Statler himself, "even the most casual review of the available in-depth investigations, and literature on the subject, would have revealed [Hunter Douglas'] oversight." Statler Report at 14. Given Statler's scant analysis, allowing him to testify as to Hunter Douglas' intent would not "help the trier of fact to
In addition to opining about Hunter Douglas' subjective knowledge, Plaintiff also offers Statler to testify that Hunter Douglas acted with "an absence of reasonable or due care" and showed a "reckless disregard for child safety." Statler Report at 19-20, 22. In short, Plaintiff would have Statler testify, "[H]ad Hunter Douglas, as a leading producer of vertical window blinds — literally, a household name — conducted its affairs in a manner more consistent with due care to addressing what it knew to be the danger of loop-corded window blinds of any kind, it is decidedly more likely than not that 3-year old Max Padilla would not have died." Id. at 24 (emphasis in original). The reason for this opinion is straightforward — Plaintiff is suing Hunter Douglas under a negligence product liability theory.
Under Illinois law, "a product liability action asserting a claim based on negligence, such as negligence design, is based upon fundamental concepts of common law negligence." Jablonski v. Ford Motor Co., 353 Ill.Dec. 327, 955 N.E.2d 1138, 1154 (2011). "As in any negligence action, a plaintiff must establish the existence of a duty, a breach of that duty, an injury that was proximately caused by that breach, and damages." Id. In the context of product cases, Plaintiff must also demonstrate that "either (1) the defendant deviated from the standard of care that other manufacturers in the industry followed at the time the product was designed, or (2) that the defendant knew or should have known, in the exercise of ordinary care, that the product was unreasonably dangerous and defendant failed to warn of its dangerous propensity." Blue v. Envtl. Eng'g, Inc., 215 Ill.2d 78, 293 Ill.Dec. 630, 828 N.E.2d 1128, 1141 (2005) (emphasis added).
Although Rule 704(a) has eliminated the prohibition barring expert opinions on "ultimate issues," the Court "must nonetheless analyze whether an `expert' opinion... would assist the jury and if so, whether its probative value is outweighed by its danger of unfair prejudice." Dahlin, 2002 WL 31834881, at *3 (citing Fed.R.Evid., Advisory Committee Notes). In Isom, the district court precluded an expert from testifying that the defendant "conscious disregarded" and was "grossly indifferent" to the risk of injury and that the product at issue was "unreasonably dangerous," because the expert was not "any more qualified than an ordinary juror to draw these inferences." Isom, 2002 WL 1052030, at *2. Similarly, in Steadfast Insurance, the district court held that an expert could not testify that a defendant had acted in "bad faith," "with improper motive," or with "ill will," for the reason that the "experts are in no better position than the jury to assess [the defendant's] subjective intent." Steadfast Ins., 2004 WL 783356, at *6. See also Dahlin, 2002 WL 31834881, at *5 (prohibiting expert from testifying, inter alia, that defendant's conduct proximately caused plaintiff's injury). Here, in support of Plaintiff's claims, Statler intends to testify that Hunter Douglas acted with "an absence of reasonable or due care" or showed a "reckless disregard for child safety." As in Isom and Steadfast, however, Statler is in no better position than the jury to arrive at
For the reasons stated herein, the Court grants Defendant's motion to exclude Statler's expert testimony in its entirety.
Plaintiff also offers Robert Wright as an expert witness. Wright purports to be an expert in the field of "Force Analysis and Dynamics," which includes accident reconstruction, product design and product safety. Def. Wright Br., Ex. A ("Wright Report") at 1. According to Wright, "[a]n individual who has the expertise in Force Analysis has the ability to analyze various objects and determine what will happen to those objects if forces are applied and what motions (if any) will occur as a result of those forces." Id.; Def. Wright Br., Ex. B ("Wright Dep.") 48:7-12. Here, Plaintiff offers Wright to provide two primary opinions. First, Wright intends to give his opinion as to the events that led to Max's death on April 22, 2008, based upon an accident reconstruction analysis. Id. at 4-5. Second, Wright intends to testify that the window blinds were "defective and unreasonably dangerous and its defect caused and/or contributed significantly to the accident that resulted in the death of Maximillian Padilla." Id. at 7.
Defendant requests that Wright's testimony be barred altogether on the grounds that: (1) Wright is not qualified to testify as an expert on window blind design and safety; and (2) Wright's opinion regarding the design of the window blinds, as well as his reconstruction of the accident, are both unreliable. For the following reasons, the Court grants Hunter Douglas' motion in part and denies it in part. Wright is barred from testifying that the window blind at issue was defectively designed; however, he may testify how the mechanisms used in corded and non-corded window blinds to open and close the blinds operate. Wright may also testify regarding the results of his accident reconstruction analysis.
Hunter Douglas contends that Wright is unqualified to testify as an expert on the adequacy of the design of Defendant's window blinds. It does not contest Wright's qualifications in the area of accident reconstruction. Based upon the record, the Court concludes that Wright is not qualified to testify as to whether the corded window blind was defectively designed. Wright's skill and education, however, render him sufficiently qualified to testify as to the mechanical features of Defendant's looped cord and wand-operated window blinds.
First, it is clear that Wright possesses the necessary education, skill, and experience to offer his opinion on how the different types of blinds operate mechanically. Wright has a bachelor's degree in Mathematics with a minor in Physics and Chemistry from Butler University. He also earned a Master of Science degree and a Ph.D. from Ohio State University in a joint program involving mathematics, science and engineering. See Wright Aff. at 1. Additionally, Wright has served as a faculty member at the Ohio State University, where he taught a variety of courses in the areas of math, science, and engineering and has published a number of scientific and technical papers for technical societies and textbooks. See id. For the purposes of this case, he reviewed the design schematics of the window blinds as well as the blinds themselves to determine how corded and non-corded blinds operate. Wright Dep. 114:7-14. Accordingly, to the extent that Wright will be offered to testify regarding these limited issues, as a trained
Despite Wright's technical qualifications, however, Wright does not have any specialized experience, education, or training relating to product design and safety, in general, or window blind design in particular. For example, Wright has never taken any formal courses in product safety. Wright Dep. 120:17-121:4. Nor has he taught any classes focusing on product design. Id. 80:8-20. Wright has not designed any products, except for model trains, off-road vehicles and combustible engines. Id. 80:21-81:9. And his consulting experience consists primarily of accident reconstruction analysis, with less than 10 percent of assignments dealing with household products. Id. 120:17-121:4.
For his part, Wright testified that the field of "force analysis and dynamics" includes product design "because many products have forces that have to react within the product to make them work." Id. 119:23-120:6. Under this rationale, however, the design of every product, whether an automobile, a computer, or an airplane, would come within Wright's expertise. Without more, Wright's generalized experience in physics and engineering are insufficient to provide him with the specialized knowledge necessary to testify that the Hunter Douglas window blind was defectively designed. See Martinez v. Sakurai Graphic Sys. Corp., No. 04 C 1274, 2007 WL 2570362, at *2 (N.D.Ill. Aug. 30, 2007) ("Generalized knowledge of a particular subject will not necessarily enable an expert to testify as to a specific subset of the general field of the expert's knowledge.") (citing O'Conner v. Commonwealth Edison Co., 807 F.Supp. 1376, 1390 (C.D.Ill.1992)). Wright also had a vague recollection of working on one or two cases involving window blinds, but admitted during his deposition that he was "guessing" and was "not sure about" those matters. Id. 63:13-24. In sum, Plaintiff has not demonstrated that Wright possesses superior knowledge, skill, experience, or education in the fields of window blinds or household product design and safety. Wright is thus barred from testifying as to whether Defendant's looped cord window blinds were defectively designed.
At the same time, however, the Court finds that Wright's technical expertise and education render him qualified to present a portion of his testimony to the finder of fact. Specifically, Wright can aid the jury in understanding how the looped cord window blinds operate differently than the wand-operated blinds, and how the physical properties of the two window blind systems differ.
In addition to challenging Wright's qualifications, Defendant argues that Wright should not be allowed to offer his opinion on whether its window blinds were defectively designed because the methodology he employed is unreliable. The Court agrees and bars Wright from offering his design defect opinions on this independent basis.
In determining whether an expert's testimony is reliable, Rule 702 requires that the district court judge conclude that the testimony "is based on a correct application of a reliable methodology and that the expert considered sufficient data to employ the methodology." Stollings v. Ryobi Tech., Inc., 725 F.3d 753, 766 (7th Cir.2013). Furthermore, as noted previously, in making this determination, the Court should consider "(1) whether the proffered theory can be and has been tested; (2) whether the theory has been subjected to peer review; (3) whether the theory has been evaluated in light of potential
As mentioned, "`[i]n alternative design cases, [the Seventh Circuit has] consistently recognized the importance of testing the alternative design'" as a factor that the district court should consider in evaluating the reliability of the proposed expert testimony. Winters, 498 F.3d at 742 (quoting Dhillon, 269 F.3d at 870.) Furthermore, experts seeking to offer their opinion in alternative design cases must also consider: "`the degree to which the alternative design is compatible with existing systems...; the relative efficiency of the two designs; the short- and long-term maintenance costs associated with the alternative design; the ability of the purchaser to service and to maintain the alternative designs; the relative cost of installing the two designs; and the effect, if any, that the alternative design would have on the price of the machine.'" See Dhillon, 269 F.3d at 870 (quoting Cummins, 93 F.3d at 369).
Here, Wright admits that he did not rely on or refer to any studies, scientific literature, learned treatises, or engineering references in forming his opinions. See Wright Dep. 195:8-14; 205:17-22; 207:1-12. Nor did he review any industry standards related to the window blinds industry. Id. 208:9-17. Wright also acknowledged that his opinions regarding Defendant's looped cord window blinds have not been subjected to peer review or accepted within the engineering or scientific community. Id. 206:15-25. Perhaps more significantly, Wright failed to conduct any of the specific analyses outlined in Dhillon. As Defendant points out, Wright has failed to test whether the wand-operated window blinds could function properly on tall windows, nor has he assessed whether wand-operated blinds could sufficiently work in different settings on a variety of window shapes. See id. 138:16-139:1; 156:2-14. In addition, Wright did not conduct any tests to measure whether consumers would have a more difficult time operating the wanded blinds as opposed to the loop cord blinds. Id. 139:24-140:6. Wright also failed to consider how the consumer public would respond to Defendant only offering the wand window blinds, and what the consumers would be willing to pay for such window blinds. Id. 149:15-24; 206:8-14. In short, Wright admits that he has not conducted any studies relating to the wand-operated blinds' "practical hands-on functionality ... marketing... how people use them, how they select them ... [and] human factor studies." Id. 205:5-16. Finally, during the August 20 hearing, he stated that he had not reviewed any information comparing the costs of corded blinds with alternatives and had not conducted any risk assessment analysis comparing the different products.
In his opposition to the motion, Plaintiff primarily relies on his belief that Dhillon is inapplicable in this case. According to Plaintiff, Wright's testimony is distinguishable
Wright Dep. 171:14-172:18.
Based upon these factors, Plaintiff has failed to demonstrate that the methodology `employed by Wright in arriving at his conclusions that the corded window blinds were defectively designed and that Hunter Douglas should only have sold wand-operated window blinds meets the reliability requirement of Rule 702 and Daubert. Accordingly, the Court bars him from testifying as to these matters.
Lastly, Defendant argues Wright should be prevented from offering his opinion on how Max's death occurred because Wright's accident reconstruction analysis is also unreliable under Daubert. Specifically, Defendant alleges that Wright's accident reconstruction is based on "unsupported speculation and conjecture." See Def. Wright Br. at 14. On this point the Court disagrees.
Defendant contends that there are no factual bases that support Wright's accident reconstruction, and that he has not sufficiently eliminated other possible scenarios. See id. at 15. Plaintiff, however, correctly retorts that Wright relied on several pieces of data while reconstructing Max's accident. For example, Wright reviewed the deposition testimony of a number of witnesses in this case, including Jose and Ruth Padilla, the report of the incident prepared by the local police department, and a number of photographs taken immediately after the time of the
Joseph Sala is a member of the Human Factors Practice group at the consulting firm, Exponent Failure Analysis Associates. Pl. Sala Br., Ex. 1 ("Sala Report") at 1. As a Senior Managing Scientist at Exponent, Sala studies "how the capabilities and limitation of people interact with the products, equipment, and systems in their environment, and how this interaction affects safety." Id. In this case, Defendant has asked Sala to analyze the design and safety of corded and wand-operated window blinds from a human factors perspective. In the end, Sala offers four opinions in this case: (1) Defendant's response to safety concerns over looped window blind cord in the mid-1990's was reasonable in light of the information available at that time; (2) it was reasonable for Defendant to continue offering window blinds with looped cords as an option because, in certain environments, such blinds are more suitable than their wand-operated counterparts; (3) additional and/or alternative warning labels on the subject window blinds would not have caused the blinds' original purchasers to either not purchase the blinds in the first place or to use them differently; and (4) based on Mr. and Mrs. Padilla's prior behavior regarding child safety, there is no scientific reason to believe that additional or alternative warning labels would have altered their behavior and prevented the accident. Id. at 14.
In his motion to bar Sala's testimony, Plaintiff argues that Sala's testimony is inadmissible under Daubert because his opinions will not assist the trier of fact, lack sufficient facts and data, and are not the product of reliable research methods or the scientific method. As discussed below, the Court bars Sala from testifying as to the first opinion; however, the Court finds that Sala's qualifications and methodologies with respect to the remaining opinions are sufficient to satisfy the requirements of Rule 702 and Daubert.
In its opposition to Plaintiff's motion, Defendant states that, "[i]f the Court grants Hunter Douglas's motion to exclude the testimony of Mr. Statler and Dr. Wright on [whether Hunter Douglas's historical response to the risks of corded window blinds was reasonable], then Dr. Sala's testimony will not be necessary on this subject." Def. Sala Resp. at 7. Because the Court has barred Statler and Wright from testifying as to this issue, the Court deems the first opinion offered by Sala as withdrawn by Defendant.
In his second opinion, Sala concludes that Defendant was reasonable in continuing to offer consumers the option of
As for Sala's qualifications, the scientific discipline of "human factors" studies "the limitations and capabilities of people as they use products, systems and equipment in their environments." Def. Resp., Sala Aff. ¶ 4. According to Sala, the field of human factors "has fundamental underpinnings in the areas of psychology ... [and] considers the interaction between a person, a product, and a specific environment and how this interaction between a person, a product, and a specific environment and how this interaction is influenced by a human's abilities, limitations, perceptions, knowledge, and pattern behaviors."
Plaintiff does not claim that "human factors" is not a legitimate field of scientific inquiry. Nor does Plaintiff challenge Sala's qualifications as an expert in the area of human factors.
Next, Plaintiff contends that Sala's opinion was not the product of reliable research methods.
Nevertheless, Plaintiff also argues that Sala's second opinion is unreliable because it is based upon insufficient data. According to Plaintiff, Sala's admission that he did not test the precise amount of strength needed to operate different types of vertical window blinds or examine the specific blinds at issue dooms his analysis. See Pl. Sala Br. at 7.
In response, Sala notes that Plaintiff's characterization is too simplistic because "each installation and use environment would lead to a unique combination of factors that would affect the amount and application of force required to operate the window coverings." Sala Aff. ¶ 8. He continues, "[e]valuating the usability of this product for portions of the population relies on more than simply an understanding of whether or not the user is capable of producing a requisite force. Specifically, questions as to whether a product is usable by the range of intended user population must consider how the operation might contribute to or be affected by fatigue, how it might be altered by or lead to compensatory actions and how it might lead to increased difficulty." Id. The Court finds Sala's explanation persuasive. In any event, Plaintiff does not challenge the methodology used by Sala to form his second opinion, and whether an expert considered all of the relevant factors goes to the weight to be afforded the expert's opinion, not its admissibility. See Daubert, 509 U.S. at 596, 113 S.Ct. 2786; Lees v. Carthage Coll., 714 F.3d 516, 526 (7th Cir.2013); Smith v. Ford Motor Co., 215 F.3d 713, 719 (7th Cir.2000); Cooper v. Carl A. Nelson & Co., 211 F.3d 1008, 1021 (7th Cir.2000).
In addition to the above two opinions, Sala also reviewed the depositions of Mindy Roberts, the prior owner of the Padilla's home and original purchaser of the window blinds, and her mother, Brenda Davis, who assisted Roberts in purchasing the blinds. From this, as well as other factors, Sala concludes that "[t]here is no scientific reason to believe that additional or alternative warning or safety information would have altered their behavior with respect to the selection, purchase, installation, and use of the [blinds]." Sala Report at 14.
Plaintiff objects to the admissibility of this opinion, claiming that Sala did not apply scientific methods and principles reliably in reaching his conclusion. See Pl. Sala Br. at 13-15. In reality, Plaintiff's argument is simply that Sala's third opinion is not consistent (at least, in Plaintiff's eyes) with the testimony offered by Roberts and Davis in this case. Be that as it may, based upon Sala's report and his deposition testimony, it is clear that Sala considered the depositions of these women, as well as a number of other depositions taken in this case. See Sala Dep. 10:4-22. Furthermore, Sala considered a number of scientific articles in the field of cognitive psychology that discuss human behavior in response to product warnings. Id. 88:19-89:21.
Again, Plaintiff does not challenge Sala methodology, but only his conclusions. Such arguments are more appropriately made to the jury at trial, rather than in a Daubert motion to the Court. See Cummins, 93 F.3d at 368 ("the [Daubert] focus must be solely on principles and methodology, not on the conclusions they generate").
In his fourth and final opinion, Sala states that the "[t]here is no scientific reason to believe that additional or alternative warning or safety information provided with the product would have altered [Mr. and Mrs. Padilla's] behavior and averted this incident." Sala Report at 14. Sala believes this, because the "Padillas did not demonstrate safety information seeking behaviors with respect to child safety in general and that related specifically to window coverings, and displayed limited response to acknowledged and obvious safety concerns." Id.
Plaintiff asks the Court to strike this opinion, arguing that Sala failed to apply scientific methods and principles in this analysis. Pl. Sala Br. at 11-13. But again, Plaintiff does not quarrel with Sala's qualifications to offer this opinion. Nor does Plaintiff contest his methodology. Rather, Plaintiff's objection is based on Sala's purported failure to consider all of the evidence that Plaintiff deems relevant. See Pl. Sala Reply at 4 (noting that the "contention that Dr. Sala's conclusion is unreliable is not premised on the reliability of Dr. Sala's academic sources; it is premised on the insufficient facts provided to Dr. Sala.").
Here, based upon a review of the deposition testimony, Sala believes that the Padillas have shown a tendency to ignore safety hazards of which they were aware. As an example, Sala points to the risk created by a television that was placed on a dresser in Max's room. According to Sala, although Mr. Padilla recognized the risk and "was always taking care of it," see J. Padilla Dep. 86-87, there was no evidence on the record showing that Mr. or Mrs. Padilla had actually fixed the situation by either removing the TV or securing it to a wall. Sala at Report 13. From this and other data, Sala concludes that there is no reason to believe that alternative or additional warning labels on the blinds would have altered the Padilla's behavior or prevented Max's death. See id. As Sala testified during the Daubert hearing, the scientific literature indicates that such behavior is not uncommon among the general population.
Plaintiff contends that this analysis is unreliable because: (1) Sala incorrectly assumes that the television was hanging over Max's head when, in fact, it was in the corner; (2) there is no evidence as to the size of the television; and (3) it is unclear how long it had been in Max's room. Pl. Sala Br. at 12. But, again, Plaintiff fails to demonstrate how these three factors diminish the reliability of Sala's methodology. The fact is Sala did review the deposition testimony of the Padillas. For example, Sala notes that: Mr. Padilla did not read parenting magazines regularly, see J. Padilla Dep. 89-90, Mrs. Padilla failed to look up safety information prior to becoming pregnant, see R. Padilla Dep. 71, and neither Mr. nor Mrs. Padilla ever spoke to their pediatrician about child safety issues, see id. 70-71. To the extent that Sala relied on certain information from the depositions while not considering others, this goes to weight of his testimony and not its admissibility. See Loeffel Steel Prods., Inc. v. Delta Brands, Inc., 372 F.Supp.2d 1104, 1119-20 (N.D.Ill.2005) ("As a general rule, questions relating to the bases and sources of an expert's opinion affect only the weight to be assigned that opinion rather than its admissibility") (citation omitted).
Furthermore, the Court notes that, even if the television had been positioned in the corner of the room, as opposed to directly above Max, this fact alone does not render Sala's conclusion unreliable. Indeed, Mr. Padilla himself testified that he still viewed it as a safety concern and was worried that
As an additional matter, the Court notes that Plaintiff makes no mention of the other facts and sources that Sala employs in forming his opinion as to the Padillas. For instance, in his report, Sala refers to several professional studies related to humans' interaction with warning labels. Sala Report at 12-13. Among them, Sala cites to a number of scientific publications that describe the factors that are relevant to assessing the efficacy of warning labels. Sala Report at 12, 17-18. These sources, which have been subject to peer review and are generally accepted in the professional community, are the types of sources upon which experts in the field commonly rely. See also Sala Aff. ¶ 10 (citing scientific literature). For these reasons, the Court denies Plaintiff's motion to exclude Sala's opinion regarding the Padillas.
Rose Ray is a Principal Scientist in the Statistics and Data Sciences department at Exponent. Pl.'s Ray Br., Ex. A ("Ray Report") at 2. Ray has a bachelor's degree in Psychology and a Ph.D. in Statistics from the University of California, Berkeley. Prior to her current employment, which began in 1988, Ray taught statistics courses at Berkeley, Northwestern University, and the University of California at San Francisco. Id. at 1. Ray's experience focuses on "data analysis and the application of statistical epidemiological methods to business environments." Id. at 32.
Here, Defendant seeks to have Ray testify as to the relative risk of injury and death to children associated with window blinds compared to other household products and appliances. See Def. Ray Resp. at 1. Specifically, Ray will testify: (1) the risk of fatality associated with window shades, venetian blinds, and indoor shutters for children ages 0 to 3 is similar to the risk of fatality associated with other common household products; (2) the risk of hospitalized injury associated with window shades, venetian blinds, and indoor shutters for children ages 0 to 3 is similar to the risk of fatality associated with other common household products; and (3) the overall rate of fatality to children ages 0 to 3 associated with window shades, venetian blinds, and indoor shutters has been decreasing in the period 1990-2007. Ray Report at 8.
Plaintiff moves to exclude all three opinions. As for the first and second opinions, which compare the risks to children from window blinds and other household products, Plaintiff contends that Ray's opinions are unreliable and will not assist the jury because the comparators are not sufficiently similar. With respect to the third opinion, Plaintiff argues that it "adds absolutely nothing to assist he jury in understanding the issues in this case." Pl. Ray Br. at 11. For the reasons below, the Court grants Plaintiff's motion as to the first and second opinions, but not as to the third.
First, Plaintiff argues that the Court should bar Ray's first and second opinions under Daubert because household items, such as buckets, chairs and coins, are not sufficiently similar to window blinds to provide a meaningful comparison in this case. The Court agrees.
According to Defendant, Ray is offered "for the very limited purpose of comparing the relative risk of a child being injured or killed in an accident involving a window blind cord, with the risk of such an accident involving other common household products to which children are routinely exposed." Def. Ray Resp. at 2. Accordingly, Ray compares "the risk of hospitalized injury or fatality to children ages 0 through 3 years" posed by window shades, venetian blinds, or indoor shutters, to that posed by generally available household products, including doors, windows, tables, sofas, and beds. See Ray Report at 3-4. In selecting the items, she "tried to choose household items that were going to be available in essentially every household so that it would be fair to assume that every child aged zero to 3 would have some exposure to that household items." Pl. Ray Br., Ex 2 ("Ray Dep.") 125:17-21. "Other than that, that was pretty much it." Id. 126:4. After comparing the different products' relative risks, Ray concludes that the "risk of fatality or of non-fatal hospitalized injury associated with `Window Shades, Venetian Blinds or Indoor Shutters' as compared to the other products is similar in the three time periods considered." Ray Report at 5.
To satisfy Daubert's reliability requirement when performing a comparative analysis of this type, an expert must "select samples that are truly comparable. To put it another way, care must be taken to be sure that the comparison is one between `apples and apples' rather than one between `apples and oranges.'" Loeffel Steel Prods., Inc. v. Delta Brands, Inc., 387 F.Supp.2d 794, 812 (N.D.Ill.2005) (quoting Donnelly v. R.I. Bd. of Governors for Higher Educ., 929 F.Supp. 583, 591 (D.R.I.1996)). Moreover, the expert bears the burden of establishing that the different products being compared are sufficiently similar to one another. See Premium Plus Partners, L.P. v. Davis, 653 F.Supp.2d 855, 867-68 (N.D.Ill.2009).
The Premium Plus Partners case is illustrative. There, the plaintiff's expert sought to compare "the price behavior of 30-Year Treasury Bonds around the time period of the cancellation with the price behavior of other treasury instruments around the time of their cancellation." Id. at 863. The court concluded, however, that the expert had "failed to provide an adequate explanation for his assertion that other instruments compared by him such as the 4-Year Treasury Note and 7-Year Treasury Note are sufficiently similar to the 30-Year Treasury instruments to offer a meaningful comparison." Id. at 867-68. As such, the court granted the defendant's motion to strike the expert's comparative analyses. See also State Farm Fire and Cas. Co. v. Electrolux Home Prod., Inc., No. 3:08-CV-436, 2013 WL 5770343 (N.D.Ind. Jun. 17, 2013) (finding comparative risk analysis did not comport with Daubert because expert compared two different types of data regarding dryer fires). Here, Defendant has not demonstrated how pails, doors, windows, and other household products are sufficiently similar to window blinds to offer a meaningful comparison.
In response, Defendant argues that Ray's comparative analysis opinions should be admitted because "the jury in this case will be asked to decide whether there was an unreasonable danger in the design of this particular product: vertical window
First, Ray acknowledges that her study considered the entire CPSC product category "Window Shades, Venetian Blinds or Indoor Shutters." Ray Report at 3. Ray did not review or analyze the safety statistics specifically with respect to corded vertical blinds, such as those at issue. Without the ability to disaggregate the statistics for the "Window Shades, Venetian Blinds or Indoor Shutters" category, the statistics have little to no relevance to this case.
Furthermore, the lack of any analysis of the comparability of window coverings, on the one hand, to other household products, such as buckets and pail, chairs, windows, sofas and coins, on the other hand, is similarly fatal. Consider, by way of example, Ray's comparison of the window covering product category with water buckets and pails. Ray's report notes that between 1994 and 1995, a little less than 0.5 child deaths per 100,000 were attributable to buckets and pails. Ray Report at 6. During that same period, there were approximately 0.25 to 0.30 child deaths per 100,000 attributable to window coverings. Id. at 7. At first glance, this comparison has some superficial appeal; however, one must remember that, in the context of Plaintiff's negligent design claim, the jury must consider "a balancing of the risks inherent in the product design with the utility or benefit derived from the product." Jablonski, 353 Ill.Dec. 327, 955 N.E.2d at 1154 (emphasis added). Similarly, when considering Plaintiff's strict liability design-defect claim, the jury may consider, among other things, "the manufacturer's ability to eliminate the unsafe character of the product without impairing its usefulness or making it too expensive to maintain its utility." Id. Here, Defendant does not explain how a manufacturer of a bucket would be able to eliminate its "unsafe character" without impairing its usefulness or the attendant costs of eliminating such risks. Nor is there any study as to whether children have different levels of access to water buckets and pails or the different ways in which children interact with buckets and pails as compared to window blinds.
Lastly, Plaintiff moves to exclude Ray's third opinion that the fatality rates of young children resulting from their interaction with window blinds has decreased over time. In its brief, Plaintiff argues that Ray's third opinion is inadmissible because it will not aid the jury, but will instead confuse it. See Pl. Ray Br. at 11-12.
For the reasons set forth above, Defendant's motion to exclude the testimony of Stuart M. Statler is granted; Defendant's motion to exclude the testimony of Robert R. Wright is granted in part and denied in part; Plaintiff's motion to exclude the testimony of Joseph B. Sala is granted in part and denied in part; and Plaintiff's motion to excluded the testimony of Rose M. Ray is granted in part and denied in part. IT IS SO ORDERED on this 6th day of February 2014.
Ray Dep. 127:12-128:7.
