The opinion of the court was delivered by: P. MICHAEL MAHONEY, Magistrate Judge
MEMORANDUM OPINION AND ORDER
James Laramee ("Plaintiff") sued Warn Industries, Inc.
("Defendant") alleging strict products liability (Count I),
negligent design (Count II), and failure to warn (Count III).
This case is set for trial the first week of August 2004.
Currently before this court is Defendant's Motion to Bar the
Opinions of Dennis Dyl ("Motion to Bar"). Plaintiff has responded
and Defendant has filed a reply brief. For the following reasons,
Defendant's Motion to Bar is denied.
On January 15, 1999, Plaintiff, an employee of U-Haul of
Illinois, was working at the Forest Hills, Rockford, Illinois
U-Haul facility. Specifically, Plaintiff was working on a U-Haul
transport truck upon which Defendant's Model M 120000 electric power winch
was mounted on the front.*fn1 While standing in between two
U-Haul trailers in the course of his work, Plaintiff became
pinned and crushed between the two trailers when allegedly
Defendant's Model M 120000 winch engaged, and pulled one trailer
into the Plaintiff, pinning him against another trailer.
At issue are Dennis Dyl's ("Mr. Dyl"), Plaintiff's proposed
expert, opinions and his report regarding Defendant's Model M.
120000 electric power winch. By way of background, Mr. Dyl
graduated from Northern Illinois University in 1974 with a
Bachelor's of Science in electrical engineering technology. After
undergraduate (although apparently not right away), Mr. Dyl
attended Illinois Institute of Technology and received his
Master's Degree in Electrical Engineering in 1991. Mr. Dyl has
been a registered professional engineer in the State of Illinois
since 1998. Additionally, Mr. Dyl has been a registered
professional engineer in the State of Wisconsin since 1997 and
the State of Michigan since 2000. In 1978, Mr. Dyl worked for
Packer Engineering. Mr. Dyl left Packer Engineering after a
little more then 19 years of service to work for
In preparing his report, Mr. Dyl examined the police report,
the depositions of two other engineers, Defendant's answers to
Plaintiff's interrogatories, fifty-nine color photographs of the
winch, remote cables and controls, and engineering notices for
the control pack and remote control. Mr. Dyl's review of these
materials led him to two conclusions: 1) the cable connecting the
remote control switch to the winch should have contained a
five-wire conductor rather than a three-wire conductor; and 2) the winch should have been designed with a
Mr. Dyl first asserts that the cable connecting the remote
control switch to the winch should have contained a five-wire
conductor because the use of five-wire conductor cable connected
to a 12-volt supply is safer than a three-wire conductor. The
reason for this assertion, according to Mr. Dyl, is with the use
of a three-conductor cable, one conductor cable is connected to a
12-volt supply and the other two conductor cables run parallel to
the one or are braided around it. This in turn creates one
12-volt energized cable and two cables that feed back to the
winch one is to spool in the wire and one to spool out. The
cable is then controlled by a single-throw, double pole switch
with a center off position, which is spring loaded so it sits at
zero. According to Mr. Dyl, if there is any damage to the cable
the switch will no longer function and the winch will operate,
either spool in or spool out, depending on which cable faults to
the energized cable. The end result being that, depending on
where the damage to the cable occurred, the short may result in a
power out rather than a power in thereby completely negating the
remote control switch. The use of a five-conductor cable, on the
other hand, according to Mr. Dyl, would require a short to both
the energized conductor and the ground conductor to the switched
ground conductor. Thus, in Mr. Dyl's opinion, the use of the
five-conductor cable would have lessened the chance of cable
damage causing the winch to activate.
Mr. Dyl's second opinion is that the winch should have been
designed with a thermal device. According to Mr. Dyl, an
over-current safety device was not installed in the motor or
within the controls of the winch. The installation of a thermal
device would shut down the winch if it jams. This type of device
is sensitive to both the current and the time the current is
applied. As such, the starting current of the winch would not
cause the device to operate. Defendant seeks to bar Mr. Dyl's opinions regarding both the
winch's remote control cable and the incorporation of a thermal
device in the winch. Turning first to the remote control cable,
as stated above, Mr. Dyl opined that the control cable connecting
the winch to the remote control should have been designed with a
five-wire conductor rather than a three-wire conductor. Defendant
seeks to bar this opinion because Mr. Dyl "readily admitted that
he has not conducted any testing of his proposed design, that his
proposed design would not be immune from shorts, and he can not
state with certainty that his proposed design would have
prevented the accident in this case." (Def.'s Mot. To Bar at 3).
Additionally, while Mr. Dyl testified that he possessed
sufficient information regarding the case in order to complete
his report and render his opinion, Defendant argues Mr. Dyl did
not even review Plaintiff's deposition or examine the winch or
determine where in the cable the fault was located. (Id. at 4).
In addition to not examining the winch, Defendant argues Mr. Dyl
did not conduct any kind of testing or research on his proposed
five-wire conductor design nor did he consult any trade
publications regarding the uses of a five-wire conductor. (Id.
at 5). According to Defendant, the only support he offers that a
five-wire conductor should have been used is Mr. Dyl's
"unverified assertion that a five-wire conductor is safer."
(Id. at 6-7). Therefore, Defendant argues Mr. Dyl's opinions
are speculative in nature and lacking in scientific reliability
and not sufficiently reliable because Mr. Dyl has not conducted
any tests regarding his theory. (Id. at 5-6) (citing Chapman
v. Maytag Corp., 297 F.3d 682, 688 (7th Cir. 2002) ("the absence
of any testing indicates that [the expert's] proffered opinions
cannot fairly be characterized as scientific knowledge."); Clark
v. Takata Corp., 192 F.3d 750, 758 (7th Cir. 1999) (finding that
the trial court properly excluded expert's testimony where he had
"conducted absolutely no scientific test" to support his
conclusions)). Plaintiff, on the other hand, argues Mr. Dyl is not offering
any opinions specific to the particular winch at issue or the
causation of the remote control compromise, but rather, Mr. Dyl's
opinions relate to the design of the product itself and whether
the product is unreasonably dangerous or defective. (Pl.'s Resp.
to Def.'s Mot. to Bar at 3-6). Specifically, in relying upon
Defendant's engineering documents, photographs, deposition
testimony of Defendant's engineers and his own knowledge and
experience, Plaintiff argues Mr. Dyl opinions are based upon
commonly accepted principles within the field of electrical
engineering. In fact, Plaintiff argues Mr. Dyl's opinion, that a
five-wire system substantially increases the number of possible
wire-contact permutations, is agreed upon by Defendant's engineer
Steve Hodge. To be true, Plaintiff argues that Mr. Dyl's opinions
and Mr. Hodge's opinions only differ with regards to whether the
product is unreasonably dangerous or defective and whether
Defendant acted reasonably in selling the subject winch with a
three-wire circuit switch. (Id. at 6). As such, Plaintiff
asserts that it makes no sense for Mr. Dyl to test his opinions
because the added safety of the five-wire design is a widely
accepted principle within the field of electrical engineering.
(Id. at 7).
With regards to Mr. Dyl's opinion concerning the incorporation
of a thermal device in the winch, Defendant argues Mr. Dyl's
opinion should be barred because Mr. Dyl has not subjected this
design to scientific method and he can not demonstrate that his
alternative design would have prevented the accident. (Def.'s
Mot. To Bar at 7). Specifically, according to Defendant, Mr.
Dyl's opinion is that the winch should be set for a maximum
current and maximum amount of time and would open if it was
sensing a jam in the winch and would be shut down before
excessive amperage flowed through the cable. The thermal device,
however, would not immediately shut down the winch in the case of
a jam; rather, a particular current would have to be achieved and
maintained over a period of time before the thermal device would shut down
the winch. This would depend on the customer specific settings.
Defendant argues Mr. Dyl has no opinion regarding what settings
should be used in this case. In fact, Defendant asserts Mr. Dyl
did not even know what settings should be hardwired into the
device because he did not know the amount of load that had been
on the winch during the accident in this case. (Def.'s Mot. To
Bar at 8). Therefore, because Mr. Dyl has not conducted any tests
of his design, has not prepared any detailed designs of the
device, conducted any calculations to demonstrate how it would
work and what settings it should have, Defendant argues Mr. Dyl's
opinion should be barred.
Plaintiff, on the other hand, argues that current sensitive
devices were readily used in electrically powered devices within
the industry at the time of the accident and Mr. Dyl's opinion is
a very basic concept in the field of electrical engineering.
(Pl.'s Resp. to Def.'s Mot. to Bar at 8-9). Further, Plaintiff
points out that during Mr. Hodge's deposition (Defendant's
expert), documents were produced evidencing the fact that thermal
detection devices and current overload devices were integrated
into other of Defendant's product lines near the time of this
accident at issue. While Mr. Hodge admitted as much, according to
Plaintiff, Mr. Hodge questioned the feasibility of using a
current overload shutoff at the switch. Plaintiff argues,
however, that Mr. Dyl, at his deposition, explained the
methodology in integrating such a device to overcome Mr. Hodge's
concerns and Mr. Dyl explained commonly used and readily
available electrical circuitry components that could also be
integrated. In fact, Mr. Dyl gave examples of the use of those
types of circuitry systems in general industry power equipment
based on his knowledge and experience. As such, Plaintiff argues
that, because the scientific design alternative Mr. Dyl proposed
in this case has already been tested, and Mr. Dyl cited existing
products as proof, Mr. Dyl's design alternative does not have to
be tested and is accepted as a viable methodology. (Pl.'s Resp. to Def.'s Mot.
to Bar at 9). Lastly, Plaintiff argues Mr. Dyl did not have to
inspect the winch because first, the winch is of little value
(the winch had allegedly been cut by the fire department at the
scene, removed from the truck, partially disassembled, and locked
up by the police) and second, the winch would offer little or any
relevant information because Mr. Dyl's opinions go to the design
of the winch and the relationship between the design defects and
how design changes would result in a safer product. (Pl.'s Resp.
to Def.'s Mot. to Bar at 10).
Defendant challenges Mr. Dyl's report and subsequent deposition
testimony for failing to comply with the requirements of Daubert
v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993), and
Federal Rules of Evidence 702. The admissibility of expert
testimony is governed by Federal Rules of Evidence 702, which
If scientific, technical or other specialized
knowledge will assist the trier of fact to understand
the evidence or determine the fact in issue, a
witness qualified as an expert by knowledge, skill
experience, training, or education, may testify
thereto in the form of an opinion or otherwise, if
(1) the testimony is 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.
Fed.R.Evid. 702. Expert testimony must be both relevant and
reliable. Daubert, 509 U.S. at 590-91. In determining
reliability, a court may consider "(1) whether the theory can be
and has been tested; (2) whether the theory has been subjected to
peer review and publication; (3) the known or potential rate of
error; and (4) the general acceptance of the theory in the
scientific community." Gruca v. Alpha Therapeutic Corp.,
51 F.3d 638, 643 (7th Cir. 1995); Daubert, 509 U.S. at 591-595. This list, however, "is neither definitive nor exhaustive, but
rather flexible to account for the various types of potentially
appropriate expert testimony." Mihailovich v. Laatsch,
359 F.3d 892
, 918 (7th Cir. 2004) (citing Deputy v. Lehman Bros., Inc.,
345 F.3d 494
, 505 (7th Cir. 2003).
Additionally, this court may consider "whether the expert
[is] proposing to testify about matters growing naturally and
directly out of research they have conducted independent of the
litigation, or whether they have developed their opinions
expressly for purposes of testifying." Stasior v. National
Railroad Passenger Corp., 19 F. Supp.2d 835, 846 (N.D. Ill.
1998) (Williams, J.) (citing Daubert v. Merrell Dow
Pharmaceuticals, Inc., 43 F.3d 1311, 1317 (9th Cir. 1995)).
Generally, the most important factor in the Daubert analysis is
whether the proffered theory can be and has been tested by the
scientific method. Bradley v. Brown, 42 F.3d 434, 438 (7th Cir.
1994); Stasior, 19 F. Supp.2d at 846. Thus, a scientific theory
that is not supported by appropriate validation is not admissible
under Rule 702. Daubert, 509 U.S. at 590.
This court functions as a gatekeeper with respect to testimony
proffered under Rule 702 to ensure that the testimony is
sufficiently reliable to qualify for admission. See
Mihailovich, 359 F.3d at 918. With this role in mind, this court
finds Mr. Dyl's opinions to satisfy Rule 702 and Daubert.
First, Mr. Dyl is qualified to give opinions with regards to the
safety of a five-wire conductor versus a three-wire conductor and
the use of a thermal device. Since 1974, the year Mr. Dyl
graduated with a degree in electrical engineering, Mr. Dyl has
been involved in the electrical engineering field. He has worked
for various companies as an electrical engineer, is licensed in
Illinois, Wisconsin and Michigan, and ...