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July 6, 2004.

MICHAEL A. DEWICK, SR., et al., etc., Plaintiffs,
MAYTAG CORPORATION, et al., Defendants.

The opinion of the court was delivered by: MILTON SHADUR, Senior District Judge


Michael Dewick Sr. and Holly Dewick (collectively "Dewicks"), as parents of and next of kin to minor Michael Dewick Jr. ("Michael"*fn1), have filed a products liability action against Maytag Corporation ("Maytag"), stemming from an incident in which Michael climbed inside the broiler compartment of a kitchen range manufactured by Maytag when he was 10 months old. In anticipation of the forthcoming trial, Maytag filed 12 motions in limine to exclude various categories of evidence.*fn2 After Motion 9 was granted by agreement, Motions 3-5, 8 and 10-12 were dealt with in this Court's June 4, 2004 memorandum opinion and order ("June 4 Opinion"). This memorandum opinion and order now deals with Maytag's remaining motions.*fn3

Motion 1 (Dkt. No. 57-1)

  Pursuant to Fed.R.Evid. ("Rule") 702, Dewicks offer the opinion testimony of Jack E. Hyde ("Hyde"). For Hyde's testimony to be admissible under Rule 702, it must satisfy the two-part test first set out in Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579 (1993) and later extended to fields of nonscientific expertise in Kumho Tire Co. v. Carmichael, 526 U.S. 137 (1999). As reflected both in Kumho and in the essentially contemporaneous amendment to Rule 702 with its accompanying Committee Note,*fn4 they eliminated any then — existing question as to whether the district courts' gatekeeping function applied to all expert testimony, not just testimony based on science.

  In brief, that previously — debated question was answered with an unconditional "yes." And that made it irrelevant which of the various sources of expertise listed in Rule 702 informed a designated expert's opinions, although the standards for testing the opinion may differ. For example, on the one hand most disciplines do not implicate peer review, which Daubert, 509 U.S. at 593 had specified as one relevant standard in the area of "scientific" knowledge, while on the other hand aspects of the scientific method may well be employed (or indeed required) to reach valid opinions in fields not labeled as demanding "scientific" knowledge.*fn5

  What remains as the common core for any Rule 702 opinion under Daubert-Kumho is that the opinion be both reliable and relevant (Daubert, 509 U.S. at 590-91, 597; Smith v. Ford Motor Co., 215 F.3d 713, 718 (7th Cir. 2000)). And whatever pigeonhole Hyde might be considered as occupying for purposes of various aspects of his proffered opinion, this opinion would of course necessarily look to those dual requirements. But because Motion 1 (other than a brief passage at M.R. Mem. 1:7-8) challenges the admissibility of Hyde's opinions solely on reliability grounds, this opinion needs to discuss only that branch of the analysis.

  As to that reliability prong, our Court of Appeals uses two evaluative criteria: "whether the expert is qualified in the relevant field and whether the methodology underlying the expert's conclusions is reliable" (Masters v. Hesston Corp., 291 F.3d 985, 991 (7th Cir. 2002)). Those criteria are examined here in turn.

  As to Hyde's qualifications, Rule 702 permits an expert to be qualified through "knowledge, skill, experience, training or education." That proposition is really a two-sided coin — abstract academic credentials (no matter how impressive) should not be overvalued if not apropos to the zone of expertise required, while at the same time relevant practical experience should not be undervalued if pertinent (Smith, 215 F.3d at 718).

  Hyde's resume provides a snapshot of some of his relevant qualifications. He holds a college degree in Safety and Fire Protection Engineering Technology, has supplementary certifications as a product safety professional and specialist and is a member of several professional organizations devoted to product safety, safety engineering and safety testing. Most significantly, Hyde has worked for over a quarter century in the product safety arena. Much of his professional experience involves evaluating product safety from an accident prevention standpoint. During his time as a safety and fire consultant about half of Hyde's time was spent analyzing products for accident prevention (Hyde Dep. 23-24). And in his 11 years as a product and safety engineer Hyde evaluated a whole slew of products (including fans, heating equipment, humidifiers and vacuum cleaners) with an eye towards safety concerns (Hyde Dep. 25-26) — and for present purposes, one key component of his safety analysis included determining whether the products posed accident risks to children less than a year old (Hyde Dep. 26-28).

  Maytag's contention (M. Mem. 1:16, M.R. Mem. 1:1-3) that, because Hyde has never previously analyzed the specific safety issue of how a 10 month old infant interacts with a broiler door, he is somehow unqualified to render an opinion here takes far too restrictive a view of what Rule 702 calls for as to the scope of a witness' expertise. Indeed, it is extraordinarily ironic for Maytag to urge that the issue be whittled down to the narrow question of the safety of a 10 month old in relation to broiler doors, given its emphasis on the paucity of similar occurrences when it comes to arguing foreseeability or unforeseeability. Instead a far more realistic approach is to construe the general subject for consideration as "child safety in relation to household appliances." And under that rubric both Hyde's academic training and his practical experience clearly provide abundant qualification for his rendering of an opinion.

  But the basic determination that Hyde is qualified to give an expert opinion here is not enough: For such an opinion to be admissible, it must also satisfy the independent requirement of reliability based on the methodology used to reach his conclusions (Bourelle v. Crown Equip. Corp., 220 F.3d 532, 537 n. 11 (7th Cir. 2000)). Because the crediting or discrediting of Hyde's conclusions poses a factual issue to be considered at trial, the Daubert-Kumho assessment of his opinions' reliability must focus exclusively on that methodology and not on his ultimate conclusions (Chapman v. Maytag Corp., 297 F.3d 682, 687 (7th Cir. 2002); Smith, 215 F.3d at 718). And to that end the most significant reliability factor is whether a particular proposed expert (whether or not classified as a "scientist" as such) has used the scientific method to arrive at his or her conclusions and opinions (Chapman, 297 F.3d at 688).

  Hyde has testified that he did use the scientific method in conducting his research and formulating his opinions (Hyde Dep. 65). But this Court would shirk its gatekeeper role if it were to accept that conclusory declaration without examining whether Hyde's actions really comport with the standard of reliability envisioned by the scientific method requirement (see Kumho, 526 U.S. at 141; Smith, 215 F.3d at 719).

  Hyde's Report ("Rep.") 16-19 and his corresponding deposition indicate that he is prepared to offer opinions about a wide range*fn6 of subjects, including (1) whether the design of the range that was involved in Michael's accident made it "defective, unreasonably dangerous, and not reasonably safe for its intended and foreseeable uses," (2) whether the warnings that accompanied the range were adequate and (3) whether alternative designs and warnings could have made the range safer. Each of those subjects calls for separate scrutiny.

  To develop all of his opinions Hyde first conducted several force tests on the Maytag range (Hyde Rep. 10-11). Relatedly he also gathered anthropometric data for infants the same age as Michael and used that information to determine that a broiler door with a recessed handle or modified pivot hinge (both of which require greater force to open than the broiler door on the range model involved in Michael's accident) would be safer alternatives (Hyde Rep. 9, 13). Hyde did not test any of those alternative designs with actual ...

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