The opinion of the court was delivered by: Proud Magistrate Judge
Before the Court is plaintiff's Motion for New Trial (Doc. 303). Defendant Fru-Con has filed a response. (Doc. 306).
Plaintiff contends that he is entitled to a new trial for the following reasons:
(1) The Court's ruling that Fru-Con did not owe a duty of care to plaintiff under its contract and under OSHA Chapter 1910 was erroneous;
(2) The Court's ruling that plaintiff could not make a submissible products liability case against Fru-Con without an expert witness was erroneous;
(3) The Court's decision excluding the testimony of plaintiff's expert witness H. Boulter Kelsey was erroneous;
(4) The Court's denial of plaintiff's motion to conduct testing was an abuse of discretion; and
(5) The Court's denial of plaintiff's motion to amend to add a prayer for punitive damages was an abuse of discretion.
This Court may grant a new trial "if the verdict is against the weight of the evidence, the damages are excessive, or if for other reasons the trial was not fair to the moving party." Tapia v. City of Greenwood, 965 F.2d 336, 338 (7th Cir.1992). See, Fed.R.Civ.P. 59(a). However, an error cannot be the basis for granting a new trial unless refusing to grant a new trial "appears to the court inconsistent with substantial justice. The court at every stage of the proceeding must disregard any error or defect in the proceeding which does not affect the substantial rights of the parties." Fed.R.Civ.P. 61.
The Court will first address plaintiff's third point, which relates to the exclusion of his expert witness, H. Boulter Kelsey. The witness was excluded on defendant's motion pursuant to Daubert v. Merrell Dow Pharmaceuticals, Inc., 113 S.Ct. 2786, 509 U.S. 579 (1993). See, Doc. 203. In that lengthy order, the Court set forth its reasons in detail for finding that Kelsey's testimony was not reliable because he offered testimony about alternative designs, but he had not performed any testing or review of data regarding the proposed alternative designs. The Court stated in that Order:
This Court recognizes that lack of testing, in and of itself, does not always doom the expert's testimony. Cummins, 93 F.3d at 369. No one Daubert factor is controlling. Dhillon, 269 F.3d at 870. Here, though, the lack of testing is problematic, especially as Mr. Kelsey himself acknowledged that the alternatives suggested by him must "be evaluated for it's [sic] specific efficacy relative to the system." Tr. 38. Under the circumstances of this case, the expert's suggestions as to methods of fixing the alleged defect in the system cannot be considered scientifically reliable without some verification. Here, Mr. Kelsey performed no testing, and reviewed no data or studies by anyone else. He did not point to any similar system which used any of the alternative designs suggested by him. He has made no evaluation of the probable installation or maintenance costs. In short, Mr. Kelsey's testimony is not reliable.
The Seventh Circuit has recently reiterated that Daubert requires the trial court to perform a gatekeeping function, and to assess not only the expert's credentials, but also "the reliability of the methodology the expert has employed in arriving at his opinion." Fuesting v. Zimmer, Inc., 421 F.3d 528, 535 (7th Cir. 2005) [emphasis in original]. Failure to test and lack of publication or peer review for a theory are indicia of unreliability. Id., 536-537.
Here, the proposed alternative designs were not tested by Kelsey, and, according to his testimony, he was unaware of any testing or implementation of his proposals by anyone else. Although he acknowledged that proposed alternatives must be evaluated for "specific efficacy relative to ...