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Deichmann v. Waveware Limited

April 24, 2007

CAROL J. DEICHMANN, AND TERRY L. DEICHMANN, PLAINTIFFS,
v.
WAVEWARE LIMITED, AND QVC, INC., DEFENDANTS.



The opinion of the court was delivered by: Reagan, District Judge

MEMORANDUM and ORDER

Before the Court is a motion to bar expert witness, which was filed by Defendants and fully briefed as of March 9, 2007. After conducting an evidentiary hearing on April 20, 2007, the undersigned District Judge took the motion under advisement. Having carefully considered the briefs, the evidence, and counsel's oral arguments, the Court DENIES the motion (Doc. 61) for the reasons stated below.

This personal injury lawsuit arose from Carol Deichmann's use of "Cozy Toze" microwave-heatable slippers. The slippers were manufactured by Waveware Limited and sold by QVC, Inc. When wearing the slippers in December 2003, Carol blistered and burned her feet. She asserts claims based on negligence, breach of implied warranty, breach of express warranty, loss of consortium (on behalf of her husband, Terry Deichmann) and strict products liability.

The strict liability claims against Waveware*fn1 are grounded on theories of design defect and failure to adequately warn consumers as to the safe and proper method of using the product. To support these claims, Carol and Terry Deichmann intend to call Mark Passamaneck, a mechanical engineer.

By motion filed January 22, 2007 (Doc. 61), QVC and Waveware, Ltd ("Defendants") seek to bar Passamaneck from testifying at trial. The parties' briefs thoroughly delineate the arguments for and against the motion, and the Court need not restate those arguments here. Plaintiffs, who disclosed Passamaneck on November 17, 2006, arguably were tardy in providing Passamaneck's report on January 12, 2007, but that delay (now water under the bridge) does not form the basis of the motion to bar. Instead the question is whether Passamaneck passes muster under Federal Rule of Evidence 702 and Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993).

In his curriculum vitae, part of Exhibit A presented by Plaintiffs at the April 20th hearing, Passamaneck describes his expertise as follows:

Mr. Passamaneck, a mechanical engineer, has eleven years experience in the forensic field. He investigates failed commercial and residential HVAC and plumbing products and systems. He has extensive automotive experience evaluating failures and accidents involving consumer, commercial, off-road and race vehicles.*fn2

In his report prepared for this case (Doc. 42-7 at p. 5), Passamaneck concluded as to the Cozy Toze: the product presents an unidentified risk of injury to users.... the manufacturer created this condition by the materials used to produce the product as well as failing to warn of the proper use and potential hazard of misuse of the product.

The admissibility of expert testimony is governed by Rule 702 and Daubert. See, e.g.,Ancho v. Pentek Corp., 157 F.3d 512, 515 (7th Cir. 1998); Deimer v. Cincinnati Sub-Zero Prods., Inc., 58 F.3d 341, 344 (7th Cir.1995).

Rule 702 provides:

If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a 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 ... 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.

Daubert requires District Courts to perform a gate-keeping function as to evidence offered by expert witnesses, to "ensure the reliability and relevancy of expert testimony." Kumho Tire Co., Ltd. v. Carmichael, 526 U.S. 137, 152 (1999). A District Court should consider certain criteria in deciding whether testimony satisfies Daubert, including these five nonexclusive guideposts: (1) whether the proffered testimony (or the theoretical framework or technique underlying it) is subject to verification through testing, (2) whether the testimony/technique has been subjected to peer review and publication, (3) what its known or potential rate of error is, (4) whether there are standards controlling its application, and (5) whether it is generally accepted within the relevant expert community. Mihailovich v. Laatsch ,359 F.3d 892, 918-19 (7th Cir.), cert. denied, 543 U.S. 926 (2004); Deimer, 58 F.3d at 344.

These five factors should be flexibly applied, depending on the type of expert testimony at issue. Mihailovich, 359 F.3d at 919. The objective of Daubert is that District Courts make certain that "an expert, whether basing testimony on professional studies or personal experience, employs in the courtroom the same level of intellectual rigor that ...


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