United States District Court, N.D. Illinois
June 4, 2004.
MICHAEL A. DEWICK, SR., et al., etc., Plaintiff's,
MAYTAG CORPORATION, et al., Defendants
The opinion of the court was delivered by: MILTON SHADUR, Senior District Judge
MEMORANDUM OPINION AND ORDER
Counsel for Plaintiff's Michael Dewick, Sr. and Holly Dewick, as
parents and next of kin to minor Michael Dewick, Jr. (collectively
"Dewicks") has responded to 10 of the 11 motions in limine filed by
defendant Maytag Corporation ("Maytag")*fn1 Maytag's Motion 9
was previously granted by agreement. Although Maytag has until June 14 to
file its reply, certain of the motions can be resolved at this point
without any need for further briefing (later opinions will of course deal
with the remaining motions).
Motion 3 (Dkt. No. 59-1)
Maytag seeks "to sever and/or bifurcate the punitive damages cause of
action from Plaintiff's case in chief" (M. Motion 3-1). That of course is
wrong in the federal practice there is no such thing as a "punitive damages cause of action." Indeed, the proper
characterization for federal purposes is "claim for relief" rather than
"cause of action" to begin with (NAACP v. Am. Family Mut. Ins. Co.,
978 F.2d 287, 292 (7th Cir. 1992)), and a prayer, for relief is not a
claim for relief.
But for present purposes the important consideration is whether the
jury should hear anything about Maytag's wealth before it decides the
question of liability. In that respect this Court's general practice
whenever the potential for a punitive damages award exists*fn2 is to
provide the jury with (1) an instruction that speaks to the subject of
punitive damages and identifies what a plaintiff must prove to become
potentially entitled to recover them and (2) a special verdict form that
reports the jury's determination as to whether plaintiff has or has not
done so. Then:
1. If the jury decides in Maytag's favor as to
liability in the case, or decides in Michael Jr.'s
favor in that respect but answers the special
interrogatory in a way that negates any possible
award of punitive damages, that will be the end of
2. But if the jury not only decides in Michael
Jr.'s favor as to liability generally but also answers the
special interrogatory in a way that creates a
potential for punitive damages, the case continues
with the introduction of evidence relevant to the
punitive damages issue, with closing arguments and
appropriate instructions on that subject to follow.
Accordingly Motion 3 (Diet. No. 59-1) is granted to the limited extent
specified here. Maytag's motion for severance of a broader scope is
Motion 4 (Dkt. No. 60-1)
Maytag, which has previously sought though unsuccessfully to defeat
the claim of the real party in interest, Michael Jr., by third partying
in his parents, now tries to backdoor the same result by asserting a
defense of misuse of its oven by the parents. To that end Maytag seeks to
call upon the decision of this Court's colleague Honorable James Zagel in
May v. Rubbermaid, Inc., No, 00 C 2184, 2002 U.S. Dist. LEXIS 4404 (N.D.
Ill. Mar. 18).
Quite apart from the dual impact of the principles (1) that opinions of
district judges (including this one) are nonprecedential and (2) that
Illinois law (which provides the rule of decision in this case) is what
the Illinois courts say it is, and not what federal courts may say,
Maytag misstates the ruling in May. Two apparent distinctions between
May and this case call for denial of Motion 4, and this Court so rules:
1. From both the case caption and Judge Zagel's
opinion, the plaintiff in that case was the parent and
not the minor child (as is the situation here).
Accordingly misuse of the product by the parent could
be a defense to her action in May. In this case, by
contrast, it is the child who sues and it is
difficult to see how a crawling infant's opening of
the broiler door can occasion his being held
responsible for "misuse" as characterized in Gallee
v. Sears, Roebuck & Co., 58 Ill. App.3d 501, 503,
374 N.E.2d 831, 834 (1st Dist. 1978):
The misuse of a product which will constitute a bar
to an action predicated upon strict liability in
tort has been objectively defined as a use for a
purpose neither intended nor reasonably foreseeable
by the manufacturer.
2. Even were that not the case, Dewicks correctly
point out that foreseeability would remain a question
for determination by the jury (McCormick v.
Bucyrus-Erie Co., 81 Ill. App.3d 154, 162,
400 N.E.2d 1009, 1015 (3d Dist. 1980)).
Motion 5 (Dkt. No. 61-1)
Maytag seeks an order "barring or limiting the number of photos and/or
video published to the jury depicting Plaintiff's injuries." That is the
kind of issue that requires an obvious balancing between plaintiffs' need
to show the nature and extent of Michael Jr.'s injury and of the pain and
suffering experienced by Michael Jr. (whether or not punitive damages are awarded), on
the one hand, and the need on the other hand to avoid a gratuitous
multiplication of such depictions that might needlessly inflame the jury
and skew its deliberations.
This Court therefore denies the motion to the extent that it would bar
entirely the introduction of visual depictions of Michael Jr.'s injuries
(including scarring). It will later determine, when the proposed exhibits
themselves are submitted for possible introduction into evidence, any
extent to which some limitation of such visual evidence is appropriate.
Motion 8 (Dkt. No. 64-1)
Here Maytag seeks to bar any reference at trial to "the pecuniary
circumstances of any of the parties to this litigation" (though Maytag
has captioned its motion as limited to barring its own pecuniary
circumstances). In response, Dewicks have agreed that their own pecuniary
circumstances (parents and child alike) "are irrelevant and should be
barred," so that Motion 8 is granted to that extent. And as to Maytag,
Dewicks correctly respond that Motion 8 is linked directly to Motion 11
(which seeks to bar all evidence as to Maytag's net worth), and so that
aspect of Motion 8 is denied for the reasons stated here when Motion 11
Motion 10 (Dkt. No. 66-1)
Maytag asks that the testimony of the Dewick parents as to Michael Jr.'s physical capability to open the broiler door at the
time of the occurrence that gave rise to this lawsuit be barred. As
Dewicks understandably respond:
Plaintiff does not seek admission of any such
evidence. The fact is, he opened it.
Accordingly Motion 10 is granted without objection,
Motion 11 (Dkt. No. 67-1)
As indicated earlier, Maytag seeks "to bar Plaintiff from introducing
any evidence, comment or argument relating to the net worth of
Defendant, as any such admission of evidence would be highly prejudicial
to the Defendant." It seeks to call to its aid our Court of Appeals'
"bedbug" decision in Mathias v. Accor Economy Lodging, Inc., 347 F.3d 665
(7th Cir. 2003), which Maytag characterizes (Motion 11-1) as holding that
"an award of punitive damages based upon wealth would be discriminatory
and would violate the rule of law."
That paraphrases what Mathias, id. at 677 said on the subject in
reliance on the Supreme Court's teaching in State Farm Mut. Auto. Ins.
Co. v. Campbell, 538 U.S. 408 (2003):
A defendant's wealth is not a sufficient basis for
awarding punitive damages.
And that Mathias statement had in turn paraphrased the language in
State Farm, 538 U.S. at 427:
The wealth of a defendant cannot justify an otherwise
unconstitutional punitive damages award.
It has already been said in discussing Motion 4 that in diversity cases the substantive law is provided by the Illinois courts
themselves, rather than by what federal courts may say about that law
(subject of course to the overriding constraints that the United States
Constitution may impose, as exemplified by State Farm). And in that
respect the Illinois caselaw continues to teach that evidence as to a
defendant's net worth, and arguments based on that evidence, are
appropriate to place before a jury that is asked to award punitive damages
(see, e.g., Proctor v. Davis. 291 Ill. App.3d 265, 286, 682 N.E.2d 1203,
1216 (1st Dist. 1997) and cases cited there).
Accordingly, unless before trial the Illinois courts were to respond to
the concerns addressed in State Farm (and Mathias) by modifying their
existing doctrine, this Court will admit evidence as to Maytag's net
worth. It should be understood, however, that this Court will monitor any
potential award of punitive damages by giving careful heed to the
overriding constitutional constraints on such awards.
Motion 12 (Dkt. No. 68-1)
Here Maytag advances a variant on Motion 10, this time seeking to bar
the Dewick parents' testimony "regarding the physical ability or
inability of Michael A. Dewick, Jr. to open alternative broiler door
designs." On that score this Court cannot improve on Dewicks' response,
attached as Ex. 1 to this opinion. That response is fully persuasive, and
Motion 12 is denied. RESPONSE TO MOTION IN LIMINE
1. Defendant's Motion in Limine No, 12 seeks to bar testimony from
Michael and Holly Dewick regarding the physical ability of Michael A.
Dewick, Jr. to open the alternative broiler door designs.
2. Michael and Holly Dewick have both inspected the new Maytag broiler
door design which substantially increases the amount of force necessary
to open the broiler door.
3. In doing so, Michael and Holly Dewick became familiar by opening and
closing that broiler door numerous times themselves, with the amount of
force it would to take to open that broiler door.
4. As parents of Michael Dewick, Jr., Michael and Holly Dewick Dewick
are both extremely familiar with the physical capabilities of their son,
Michael Dewick, Jr., as those capabilities existed as of the time of this
5. Based on their familiarity with both their son's physical
capabilities and the new broiler door design, both Michael and Holly
Dewick will state definitively that Michael Dewick, Jr. would not have
been able to open the new broiler door design back in May of 2002, the
time of the accident in this case. Such testimony is not speculative.
This testimony is based upon their knowledge of the physical capabilities
of their son and their knowledge of the physical characteristics of this
product. Therefore, such testimony complies with Federal Rule of Evidence
701 which requires that lay witness testimony be "rationally baed on the
perception of the witness,"
WHEREFORE, plaintiff respectfully requests that defendant's Motion
in Limine No. 12 be denied.