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HOT WAX, INC. v. WARSAW CHEMICAL CO.

March 16, 1999

HOT WAX, INC., PLAINTIFF,
v.
WARSAW CHEMICAL COMPANY, INC., DEFENDANT.



The opinion of the court was delivered by: Coar, District Judge.

MEMORANDUM OPINION AND ORDER

I. Plaintiff's Motions to Strike

As discussed in detail in the fact section of this opinion, a question at the heart of Plaintiff's false advertising claim is whether the products distributed by Defendant and labeled as "wax" actually contain wax. Plaintiff has moved to strike certain statements by Bucher and Rufner regarding the content of seven of Defendant's product.

A. Bucher Affidavit

Paragraph 6 of Bucher's Affidavit states that the following Warsaw products contain wax: Formula 503 Wax & Shine Cherry/Lemon Scent; Formula 500 Lemon Foam Wax; Formula 523 Process 2 Sealer Wax; Formula 530 LW Lemon Wax & Shine; Formula 530 SW Sealer Wax; Formula 527 Clear Coat Protectant; and Formula 530 CCP Color Coat Protectant. Plaintiff has moved to strike this statement on two grounds: that Bucher does not have personal knowledge of the chemical composition of the products at issue in this case and that Bucher's information regarding the alleged presence of wax in these particular products is based on the hearsay statements of Rufner and of Witco Chemical Co. ("Witco"). Because the court agrees that Bucher has no personal knowledge of the chemical composition of the products at issue in this case, the court GRANTS Plaintiff's motion to strike ¶ 6 of Bucher's Affidavit.

While Bucher stated in his affidavit that he has "personal knowledge of all statements made in this Affidavit," (Bucher Aff. ¶ 3), this claim is belied by his deposition testimony and by Defendant's 12(N) Response ¶¶ 11-12. In his deposition testimony, Bucher admitted both that he did not know the chemical composition of the Warsaw products, (Bucher Dep. at 16), and that his belief that any of the Warsaw products contained wax was based solely on the data sheets of Warsaw's chemical supplier, Witco, and on the statements of Rufner, though Bucher did not know how Rufner determined that wax was present in any of the products. (Bucher Dep. at 21 (Witco) and 111-12 (Rufner).) In its 12(N) Response, Defendant expressly agreed with Plaintiff's 12(M) Statement ¶¶ 10 ("Kenneth Bucher, in his Affidavit which is attached to Warsaw's Motion for Summary Judgment, states that he has personal knowledge that seven of the Warsaw products at issue contain wax."), 11 ("Kenneth Bucher does not know the chemical composition of these products."), and 12 ("The basis of Kenneth Bucher's knowledge referred to in Paragraphs 3 and 6 of his affidavit is entirely dependent upon what he has been told by Witco Chemical Co. (`Witco'), a chemical supplier (Ex. A at 21), and Jeffrey Rufner, Warsaw's chemist in its car wash division.").

The court finds that ¶ 6 of Bucher's Affidavit is inadmissible. "Only evidence that would be admissible at trial is properly considered either in support of or in opposition to a motion for summary judgment." Servpro Industries, Inc. v. Schmidt, 1997 WL 158316, *21 (N.D.Ill. 1997) (citing Fed.R.Civ.P. 56(e) and Pfeil v. Rogers, 757 F.2d 850, 860 (7th Cir. 1985), cert. denied, 475 U.S. 1107, 106 S.Ct. 1513, 89 L.Ed.2d 912 (1986)). The general rule regarding admissibility of affidavits at summary judgment is that the affiant, like any witness in a case other than an expert witness, must only testify to matters within his personal knowledge. Russell v. Acme-Evans Co., 51 F.3d 64, 67 (7th Cir. 1995). Additionally, where a witness's affidavit contradicts the witness's sworn deposition, the affidavit will be disregarded. Id. at 68 ("Where deposition and affidavit are in conflict, the affidavit is to be disregarded unless it is demonstrable that the statement in the deposition was mistaken, perhaps because the question was phrased in a confusing manner or because a lapse of memory is in the circumstances a plausible explanation for the discrepancy."). See also McCarthy v. Kemper Life Insurance Companies, 924 F.2d 683, 687 (7th Cir. 1991) (A party "cannot effectively oppose a motion for summary judgment by contradicting his own deposition testimony."). It is undisputed that Bucher has no personal knowledge regarding the chemical composition of the products at issue in this case. In light of that fact, ¶ 6 of his affidavit is inadmissible under Rule 56.

The court also finds that Bucher's statements rely on inadmissible hearsay. Federal Rule of Evidence 801(c) defines "hearsay" as "a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted." Paragraph 6 of Bucher's affidavit, in essence, is a repetition of Witco's and Rufner's out-of-court statements regarding the alleged presence of wax in the products at issue. Bucher repeats these out-of-court statements as though they were facts, and Defendant attempts to use Bucher's repetition for the truth of the matter asserted, i.e., that the products at issue do, in fact, contain wax. Accordingly, Plaintiff's Motion to Strike ¶ 6 of Bucher's Affidavit is GRANTED.

B. Rufner Testimony

Plaintiff argues that Rufner's expert testimony as to the presence of carnauba wax in certain of Warsaw's products should be stricken because it is based on inadmissible and unreliable hearsay statements by Wilco employees. The standard for admissibility of expert testimony is found in Federal Rule of Evidence 703:

  The facts or data in the particular case upon which
  an expert bases an opinion or inference may be those
  perceived by or made known to the expert at or before
  the hearing. If of a type reasonably relied upon by
  experts in the particular field in forming opinions
  or inferences upon the subject, the facts or data
  need not be admissible in evidence.

Witco's Carnauba Spray 200 is used in the manufacturing of the Warsaw products at issue in this case. (Ptf's 12(M) Stmt. ¶¶ 14-15.) Rufner's testimony is that the Carnauba Spray 200 contains carnauba wax and, thus, that the Warsaw products at issue in this case contain carnauba wax. Defendant's claim and Rufner's opinion that the Warsaw products contain carnauba wax is entirely dependent on the claim that the Carnauba Spray 200 contains carnauba wax. (Ptf's 12(M) Stmt. ¶ 15.) Rufner's opinion that the Carnauba Spray 200 contains carnauba wax is based on two types of evidence: (1) statements from Witco that Carnauba Spray 200 contains carnauba wax and (2) solid clumps appear in the Carnauba Spray 200 product, and Rufner assumes that the solid clumps are carnauba wax.

The court finds that Rufner's opinion is inadmissible. Rufner assumes that the Carnauba Spray 200 product contains carnauba wax simply on the basis of hearsay statements by unnamed persons at Witco. (Rufner Dep. at 70) ("Q. [F]irst off, how do you know that's [the clumps seen in the Carnauba Spray 200 product] carnauba wax. A. It's my understanding from my discussions with Witco that Carnauba Wax 200 is Carspray 300 or a similar, very similar molecule, and the carnauba wax. Since I can put a drum of Carspray 300 out in the open, as cold as it wants to be and see no solids, I assume that any solids in the Carnauba Spray 200 are going to be the carnauba wax.").*fn1 Rufner has never been asked to conduct an analysis to verify the presence of carnauba wax in Carnauba Spray 200 or in the Warsaw products (Rufner Dep. at 19); his only testimony was that he has seen solid clumps in the Carnauba Spray 200 and has to keep the Carnauba Spray 200 heated to reduce clumping (Rufner Dep. at 19, 21). Rufner testified that the proper way to test for the presence of wax in a product would be to freeze the product and attempt to separate out the wax molecules from the rest of the product, including any other solids that may be present in the product. (Rufner Dep. at 20-21.) While Rufner testified that the products at issue in this case do come out of suspension when frozen, (Rufner Dep. at 20-21), Rufner did not testify that he has ever separated out the solids or otherwise tested chemically for the presence of carnauba wax.

Rufner's opinion testimony is inadmissible under Rule 703. While it is true that Rule 703 "is explicit that the materials on which an expert witness bases an opinion need not be admissible, let alone admitted, in evidence, provided that they are the sort of thing on which a reasonable expert draws in formulating a professional opinion," Peabody Coal Co. v. Director, Office of Workers' Compensation Programs, 165 F.3d 1126, 1128 (7th Cir. 1999), this court has a duty "to make sure that the expert isn't being used as a vehicle for circumventing the rules of evidence." In re James Wilson Assoc., 965 F.2d 160, 172 (7th Cir. 1992). Rufner's testimony as to why he thought that Carnauba Spray 200 contained carnauba wax is premised entirely on out-of-court statements from unnamed Witco employees who stated that Carnauba Spray 200 contained carnauba wax. While Rufner can state that he has first-hand knowledge that solid clumps form in Carnauba Spray 200 at certain temperatures, he has no first-hand knowledge of what those clumps chemically are. Additionally, he has no tests, etc., performed by himself or other experts analyzing the clumps in those products. Thus, Rufner's "expert testimony" is, in reality, hearsay statements from Witco's employees dressed up to look like expert testimony. As such, it is inadmissible. Cummins v. Lyle Indus., 93 F.3d 362, 372 (7th Cir. 1996) (affirming district court determination that expert testimony was inadmissible where that testimony was based on "information from unidentified individuals on unspecified dates"; "There is no indication in the record that experts in Dr. Carpenter's field reasonably rely on statements of this kind."); James Wilson Assoc., 965 F.2d at 173 (rejecting expert testimony where the expert simply testified "for the purpose of vouching for the truth of what the engineer had told him — of becoming in short the engineer's spokesman"); Gong v. Hirsch, 913 F.2d 1269, 1272-73 (7th Cir. 1990) (rejecting expert testimony where the "information sought to be relied on . . . is merely a conclusory statement, made by a doctor who was not the treating physician at the time of the illness in question. . . .").*fn2

Even if Rufner's testimony was admitted, it would be entitled to little, if any, weight. By its own terms, this testimony is lacking in scientific merit. As Rufner himself testified, to determine the existence of wax in a product, one would have to freeze the product, separate the solids from the other parts of the product, and then separate the different solids from each other in order to attempt to isolate any wax molecules. There is no evidence that Rufner did this. Rather, Rufner just assumed that any solids in the Carnauba Spray 200 were carnauba. No reasonable jury could find on the basis of Rufner's testimony that Carnauba Spray 200 or the Warsaw products at issue in this case contain carnauba. Plaintiff's motion to strike Rufner's testimony as to the presence of carnauba wax in Carnauba Spray 200 or the subject products is GRANTED.

Plaintiff has also objected to a second portion of Rufner's opinion. Rufner opined in his report, dated October 30, 1998, that "[t]he purpose of alkoxylating wax is to ensure that it will go into solution in water more easily. It is very difficult to get more than trace amounts of wax into water. By purchasing alkoxylating wax, we can get more wax into solution," (Rufner Aff. ¶ 9), and that "[i]f wax is still alkoxylated, it is still wax. When wax is alkoxylated, it is still a low-melting organic mixture or compound of high molecular weight, solid at room temperature." (Rufner Aff. ¶ 10.) Plaintiff objects to ¶ 9 (that the purpose of alkoxylating wax is to cause it to go into solution in water more easily) because that opinion is based on discussions with unnamed Witco employees who told him that the alkoxylation was done "to make it [the wax] go in the solution easier." (Rufner 11/11/98 Dep. at 17.) As discussed above, the court finds that an expert opinion based on such unreliable, hearsay statements is inadmissible. However, in his affidavit, Rufner stated: "I relied on my review of the report of Metuchen Analytical Kendal Infrared, including analysis of spectra, my education, experience, and training, and my experience at Warsaw Chemical Company informing these opinions." (Rufner Aff. ¶ 11.) Given this statement, this court cannot find that Rufner's opinion from his Affidavit ¶ 9 is based solely on inadmissible, unreliable hearsay. Accordingly, Plaintiff's motion to strike Rufner's testimony is DENIED as to Rufner Affidavit, ¶ 9. The court notes that Plaintiff has not moved to strike Rufner's Affidavit as to any other opinion, including the alkoxylation opinion in ¶ 10.

II. Facts

Plaintiff is a Wisconsin corporation with its principal place of business located in Racine County, Wisconsin. (Ptf's 12(M) Stmt. ¶ 2.) Defendant is an Indiana corporation with its principal place of business located in Warsaw, Indiana and which conducts business in the Northern District of Illinois. (Ptf's 12(M) Stmt. ¶ 3.) Defendant manufactures ...


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