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September 8, 2005.

DELTA BRANDS, INC., d/b/a DBI; and SAMUEL F. SAVARIEGO, individually, Defendants.

The opinion of the court was delivered by: JEFFREY COLE, Magistrate Judge



On July 22, 2005, I granted the plaintiff's motion to bar the testimony of DBI's damages expert, Mr. Robert Dohmeyer, but for reasons, in part, other than those raised in Loeffel's motion and supporting memoranda. Consequently, on August 1, 2005, I confirmed by minute order prior in-court conversations with counsel for the parties in which I invited DBI to file a supplemental brief directed to those portions of the opinion that raised new issues.

  On August 8, 2005, DBI filed a nine-page Supplemental Submission directed to two issues. The first relates to DBI's quotation from the Illinois Supreme Court's opinion in Moorman Mfg. Co. v. National Tank Co., 91 Ill.2d 69, 82, 435 N.E.2d 443, 449 (1982) to support its argument that Mr. Dohmeyer's definition of economic loss was "entirely consistent" with Illinois law's definition. Its reply brief, quoting from Moorman, said: Illinois law has defined economic loss as the "damages for inadequate value, costs of repair and replacement of the defective product or consequential loss of profits, without any claim of personal injury or damage to other property." (DBI Reply at 10). The Memorandum Opinion of June 22, 2005 pointed out that this was an inaccurate quotation and that a whole phrase following the word "property" had been deleted without any indication that there had been a deletion. The Memorandum Opinion questioned whether this was intentional.

  DBI's Supplemental Submission contends that the placement of a period at the end of the word "property" without indicating by ellipses — or by some other method — that there was a further part of the sentence was not inappropriate "either in a general sense [or] with respect to the specific facts of this case," and that the defendants "had no intention of providing anything other than an absolutely accurate citation. . . ." (Supplemental Submission at 1).

  In support of this position, DBI cites four post-Moorman Illinois Appellate Court decisions that quoted Moorman as did DBI's reply brief. That is, 1) there was no reference to the phrase, "as well as `the diminution in the value of the product because it is inferior in quality and does not work for the general purposes for which it was manufactured and sold,'" and 2) the deletion of this phrase was not shown by ellipses. The conclusion drawn by DBI is that the "as well as," phrase does not "clearly" reflect Moorman's intent to combine both phrases from the two law review articles [cited in Moorman] as the single definition of economic loss," but rather merely reflects "Moorman's notation of two different ways of describing economic loss — . . ." [i.e., that] they are different ways of saying the same thing." Id. at 2-3. Consequently, DBI says that no negative inference should have been drawn.

  The Illinois Appellate Court decisions give force to the contention. However, the Illinois Supreme Court in post Moorman decisions has not quoted Moorman in the same truncated way. Thus, in Anderson Electric, Inc. v. Ledbetter Erection Corp., 115 Ill.2d 146, 149, 503 N.E.2d 246, 247 (1986), in quoting Moorman, the Court used ellipses to signal the exclusion of the "as well as" phrase. This does suggest that the "as well as" phrase is another way of saying the same thing as "damages for inadequate value" or "replacement of a defected product." However, in In re Illinois Bell Switching Litigation, 161 Ill.2d 233, 241, 641 N.E.2d 440, 444 (1994), and 2314 Lincoln Park West Condominium Association v. Mann, Gin, Ebel & Frasier, Ltd., 136 Ill.2d 302, 307, 555 N.E.2d 346, 348 (1990), the Court quoted Moorman exactly as it was written, saying that this is the way the Moorman decision defined economic loss. All that was deleted were the two law review citations, which were indicated by "[Citation.]." And in City of Chicago v. Beretta U.S.A. Corp., 213 Ill.2d 351, 417, 821 N.E.2d 1099, 1139 (2004), the Court, quoting Moorman, noted that the damages sought by the plaintiff were not "the type of economic losses associated with `disappointed commercial expectations' . . . "such as `damages for inadequate value, costs of repair and replacement of the defective product or consequent loss of profits,' and `the diminution in value of the product because it is inferior in quality and does not work for the general purposes for which it was manufactured and sold' [Citation.]. Moorman. . . ." (Bracket in original) (Emphasis supplied).*fn1

  In light of the way in which Moorman has been variously quoted and because of my certainty of the good faith of DBI's lawyers, I am persuaded that the manner which the Moorman case was cited was not intended to mislead and that no negative inferences should be drawn. Consequently, any contrary suggestion in the July 22nd Memorandum Opinion and Order is withdrawn. But all this does is to underscore the need for accurate quotations. Of course, ellipses are not a cure for misquotation and indeed are often the vehicle for misleading. See Posner, Overcoming Law, 277 (1995) ("Beware a Horwitz bearing ellipses."). Nonetheless, they at least alert the reader that something has been left out and avoid any possibility of misunderstanding or misperception.*fn2


  The second point raised in the Supplemental Submission relates to the conclusion that Mr. Dohmeyer's "expert" testimony cannot simply parrot what he was told by DBI's employees, and since they were not designated as experts, and cannot therefore testify about their "expert" theories, he cannot testify based on what they told him. DBI has suggested that I should "await the testimony of the underlying witnesses on the facts to which they are entitled to testify before making a ruling on the admissibility of Mr. Dohmeyer's testimony." (Supplemental Submission at 9; Reply Submission at 4). In DBI's view "it is fair to view the information to be provided to Mr. Dohmeyer by the Delta employees as very similar to the information provided by Plaintiff's employees to Mr. Toczyl in attempting to support his opinions on liability. Both blocks of information depended on the knowledge of steel processing on this machine and information that the testifying expert either could not or did not verify independently as to the entire block of information." (Reply Submission at 2).

  I do not think that this conclusion bears careful scrutiny. Quoting the same paragraph from Dura Automotive Systems of Indiana, Inc. v. CTS Corp., 285 F.3d 609, 612 (7th Cir. 2002) that was quoted in the June 22nd Memorandum Opinion, DBI quite properly notes that an expert witness is permitted to use "assistants" in formulating an expert opinion. To be sure that the assistants "perform their tasks competently," they can be deposed. The expert witness can be asked at his deposition whether he supervised them carefully and whether "his relying on their assistance was standard practice in his field." Id. at 613. The quoted paragraph can only be properly understood by considering the paragraph immediately following it. That paragraph begins: "Analysis becomes more complicated if the assistants aren't merely gofers or data gatherers but exercise professional judgment that is beyond the expert's ken." Id. at 612.

  The Loeffel employees who assisted Mr. Toczyl really were mere "data gatherers." They reported Line speeds and took measurements. They performed no independent analysis and provided no expertise beyond the ken of Mr. Toczyl, who participated in what they did. By contrast — and the contrast could scarcely be more stark — the DBI employees did not assist Mr. Dohmeyer in any way. Rather, they provided him with the very theory on which he relied and which admittedly was "beyond [his] ken." 285 F.3d at 612. In short, they were the experts, not he, and he was unable "to testify to the veracity of" their conclusions. St. Paul Fire & Marine Insurance Co. v. Noelen Group, Inc., 2005 WL 1168380 at *9 (E.D.Pa. 2005).*fn3

  Of course, it is common in technical fields for an expert to base an opinion in part on what a different expert believes on the basis of expert knowledge not possessed by the first expert, and Rule 703 contains no general requirement that the other expert testify as well, unless of course the soundness of the underlying expert judgment is in issue. Dura Automotive, 285 F.3d at 613. "This does not mean, however, that an expert is allowed to be simply a `mouthpiece' for a scientist from another field." Builders Ass'n of Greater Chicago v. City of Chicago, 2003 WL 1786489 at *6 (N.D.Ill. 2003) (Moran, J.).

  Judge Posner, in Dura Automotive, gave the example of the thoracic surgeon attempting to give expert evidence in a medical malpractice case that the plaintiff's decedent had died because the defendant radiologist should have discovered the cancer sooner. In that case, Rule 703 would not allow the testimony, because the surgeon would be merely parroting the opinion of an expert in radiology, and the surgeon was not competent to testify that the defendant had x-rayed the decedent carelessly. "The case would be governed [then], Judge Posner said, by . . . In re James Wilson Associates, 965 F.2d 160, 172-73 (7th Cir. 1992). . . ." 285 F.3d at 613. Dura Automotive also ...

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