The opinion of the court was delivered by: J. Phil Gilbert District Judge
This matter comes before the Court on the motion for summary judgment filed by defendant Black & Decker (U.S.), Inc. ("Black & Decker") (Doc. 73). That motion depends in part on Black & Decker's contemporaneous motion to exclude the testimony of Stan Johnson ("Johnson"), one of the plaintiff's expert witnesses (Doc. 75). Plaintiff Russ Stallings, administrator of the estate of Richard R. Stallings ("Stallings"), has responded to the motion for summary judgment (Doc. 78) and the motion to exclude Johnson's testimony (Doc. 79), and Black & Decker has replied to those responses (Docs. 87 & 84). Black & Decker has also requested a hearing on the pending motions (Doc. 76), to which the plaintiff has objected (Doc. 80), and has moved to strike portions of the plaintiff's evidence (Doc. 83), to which the plaintiff has not responded.
The Court held a hearing on August 13, 2008, pursuant to Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993), at which Johnson was called as a witness. That hearing rendered Black & Decker's motion for a hearing (Doc. 76) moot. In a summary order dated August 27, 2008 (Doc. 100), the Court granted Black & Decker's motion to exclude Johnson's testimony (Doc. 75) and motion for summary judgment (Doc. 73). This order provides the rationale for those rulings.
I. Summary Judgment Standard
Summary judgment is appropriate where "the pleadings, the discovery and disclosed materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(c); see Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986); Spath v. Hayes Wheels Int'l-Ind., Inc., 211 F.3d 392, 396 (7th Cir. 2000). The reviewing court must construe the evidence in the light most favorable to the nonmoving party and draw all reasonable inferences in favor of that party. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986); Chelios v. Heavener, 520 F.3d 678, 685 (7th Cir. 2008); Spath, 211 F.3d at 396. Where the moving party fails to meet its strict burden of proof, a court cannot enter summary judgment for the moving party even if the opposing party fails to present relevant evidence in response to the motion. Cooper v. Lane, 969 F.2d 368, 371 (7th Cir. 1992).
In responding to a summary judgment motion, the nonmoving party may not simply rest upon the allegations contained in the pleadings but must present specific facts to show that a genuine issue of material fact exists. Fed. R. Civ. P. 56(e)(2); Celotex, 477 U.S. at 322-26; Johnson v. City of Fort Wayne, 91 F.3d 922, 931 (7th Cir. 1996). A genuine issue of material fact exists only if "a fair-minded jury could return a verdict for the [nonmoving party] on the evidence presented." Anderson, 477 U.S. at 252; accord Michas v. Health Cost Controls of Ill., Inc., 209 F.3d 687, 692 (7th Cir. 2000).
A. Motion to Strike (Doc. 83)
As a preliminary matter, the Court addresses Black & Decker's motion to strike (Doc. 83) portions of the transcript of the White County coroner's inquest into the cause of Stallings's death, which the plaintiff has submitted in support of his responses to Black & Decker's motions for summary judgment and to exclude Johnson's testimony. The plaintiff has not responded to the motion.
Black & Decker argues that parts of the testimony do not satisfy the requirements of Rule 56(e)(1): "A supporting or opposing affidavit must be made on personal knowledge, set out facts that would be admissible in evidence, and show that the affiant is competent to testify on the matter stated." Specifically, the three witnesses at the inquest, none of whom were present at Stallings's death, expressed their personal theories about the events that could have led to his death even though they had no personal knowledge of those events. They were not tendered as or qualified to be experts on the subjects under Federal Rule of Evidence 702, and their opinions have not been shown to qualify as admissible lay opinions under Federal Rule of Evidence 701. Furthermore, the White County Coroner Carl McVey ("McVey"), was not sworn as a witness and made statements about which he had no personal knowledge.
For these reasons, the Court will grant Black & Decker's motion to strike (Doc. 83) and will exclude all statements in the coroner's inquest transcript that are not sworn or that are not based on personal knowledge. It will, however, consider inquest witnesses' sworn statements based on their personal knowledge.
Viewing the remaining relevant evidence and drawing all reasonable inferences in the plaintiff's favor, the Court finds the following facts for the purposes of this motion.
On April 17, 1991, at approximately 6:30 p.m., the decedent's uncle, Rex Stallings, found the decedent's lifeless body on the floor of a shed on Rex Stallings's farm amid splatters of blood. Stallings was face down on top of a piece of oriented strand board ("OSB"), a type of particle board, and there were massive amounts of blood around him. A portable circular saw manufactured by Black & Decker was on a nearby workbench and had blood on it. The saw was plugged into an electrical outlet. White County Sheriff's Deputy David Burroughs picked up the saw when he arrived on the scene, then later, at the direction of McVey, replaced it where he found it. Photographs were taken of Stallings as he was found, after he was turned over on his back and after his body was taken to a funeral home. McVey also removed and photographed the OSB on which Stallings was found, which had a straight cut in it beginning from one side and stopping in the middle of the board. A note was found on Stallings's person indicating that Stallings had planned to repair hog feeders and do other chores. McVey determined that Stallings had died from blood loss caused by a throat laceration an inch or more deep and three to four inches wide in the area of Stallings's carotid arteries. All parties agree that the laceration was caused by the saw blade coming into contact with Stallings's throat.
The circular saw found at the scene of the incident did not have a riving knife to prevent or lessen kickback. In a portable circular saw, kickback occurs when the rotating saw blade becomes bound by the material being cut, causing the rotational force of the motor to propel the saw suddenly back toward the saw operator. It can occur when sawing into a knot or nail or cutting not in a straight line. A riving knife reduces the ability of the material being cut to bind the blade and cause kickback. Portable circular saws sold in the United States generally do not have riving knives, although such saws are available, but those sold in numerous other countries generally do.
Since the accident over seventeen years ago, the OSB found under Stallings's body and the note found in his pocket have been lost and the shed in which Stallings was found has been torn down.
On April 12, 1993, the administrator of Stallings's estate filed a lawsuit in state court. The case against Black & Decker was tried and Black & Decker prevailed, but the Illinois Appellate Court remanded the case for retrial. Before it could be tried again, on April 1, 2005, the suit was dismissed without prejudice. On March 22, 2006, the plaintiff filed another complaint in state court, and the case was removed to this Court. The only counts remaining are claims for negligence and strict liability against Black & Decker based on an alleged design defect, namely, the failure of the saw to have a riving knife or an anti-kickback device that would prevent the saw from kicking back and would act as a guard and protect from injuries.
The plaintiff has two expert witnesses: Bruce Levy, M.D., a forensic pathologist and death scene investigator, and Stan Johnson, a design engineer and power tool accident reconstructor.
Dr. Levy opined that Stallings died from blood loss following a wound to his neck and throat made by the Black & Decker portable circular saw found on the scene and that Stallings had been using the saw to cut a board when he was suddenly and accidentally cut by the saw and fell on top of the board. Dr. Levy further concluded that Stallings did not die immediately after the accident but bled to death over a period of 3 to 20 minutes, possibly longer.
In a report dated October 29, 2007, Johnson stated that Stallings was killed while cutting a piece of OSB and opined that the saw had kicked back and rotated approximately 90 degrees by pivoting on Stallings's wrist, elbow and shoulder and then had come into contact with his neck quicker than the blade guard was able to close. He noted that "[t]he propensity of circular saws to kickback during sawing is well documented in safety standards, instruction manuals, patents, and anti kickback circular saw designs worldwide." He based his opinion that kickback had occurred on (1) his conversation with Dr. Levy, (2) McVey's report and the coroner's inquest transcript, which contained inadmissible speculation from the witnesses that kickback had caused the accident and (3) his own re-enactment of the events leading to Stallings's death. Johnson further stated that "riving knives are a proven solution to kickback."
Although at the time he had not tested any portable circular saws for kickback and had not used a saw with a riving knife, he stated in his report that he had tested a Black & Decker portable circular saw with a riving knife and that it was not detrimental to the saw's function. Johnson later admitted that this statement in his report was incorrect because he had, in fact, not performed any such test at the time of the statement. Johnson further concluded that the inclusion of a riving knife in models sold outside the United States proves it is technologically and economically feasible to incorporate a riving knife into Black & Decker portable circular saws sold in the United States and that the absence of a riving knife and two other anti-kickback devices (a blade brake and a blade clutch) rendered the saw defective and unreasonably dangerous. He concluded, "There is a reasonable probability that Richard Stallings [sic] fatal injury would not have occurred had his Black & Decker saw not kicked back."
In a letter dated December 4, 2007, Johnson further opined that because of the length of the cord, Stallings must have been standing up, facing the board, steadying the board vertically on the floor with his left hand while making a downward cut with the saw in his right hand.
In his December 10, 2007, deposition, Johnson admitted that he had conducted his first and only test of a portable circular the week before the deposition. In that test, he compared a Festool brand saw with a riving knife to his own Black & Decker saw (a different but similar model to Stallings's saw) without a riving knife to assess their relative tendency to kick back or bind and to see if the riving knife inhibited the performance of the saw. The test was the first time he had used a portable circular saw with a riving knife. In that test, Johnson cut four S-curves in OSB with each saw. He believed cutting curves, as opposed to straight lines, was the "typical way a circular saw would bind and/or kick back" and that a straight line cut "wouldn't prove much of anything" as far as saw performance. Johnson Dep. at 63-64. He described the test as "strictly a feel test" to see if he could "feel a difference between the two saws and whether the riving knife felt any different." Id. at 65. He made no notes or recording of the testing, but observed that the blade of the Black & Decker saw without the riving knife bound twice but the blade of the Festool with the riving knife did not bind at all. Id. at 65-66. Johnson was able to prevent the Black & Decker saw from kicking back by holding onto it tightly once he felt the blade begin to bind. Id. at 66. He concluded that the riving knife was not detrimental to the quality of the saw. Id. at 68. He drew no conclusions about the relative tendency of the saws to kick back based on this test. Id. at 68-69.
In his deposition testimony, Johnson also opined that the kickback was caused by a misalignment of the blade in the kerf line, not by a closure of the kerf, id. at 90, 93, 123, and that a riving knife would have prevented the kickback. He also stated he assumed Stallings had been cutting the board at the time of the accident because of the note in his pocket indicating he was going to repair hog feeders. Id. at 57.
Johnson also signed an affidavit on February 15, 2008, in which he states that the materials he consulted demonstrate it is well-known and reliably accepted in the field of power tool design/engineering that kickback can occur when a portable circular saw does not have a riving knife and that a riving knife prevents portable circular saw kickback. He also reiterates that his accident reconstruction opinion is based on the testimony adduced at the coroner's inquest (some of which has been excluded by the Court as hearsay, made without personal knowledge or unsworn), and he added the details that Stallings was standing facing the board, steadying it with his left hand while making a downward cut with the saw in his right hand, when the saw kicked back.
At the August 13, 2008, hearing, Johnson testified about his qualifications to render his expert opinions and expanded on and ...