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Allen Plyler v. Whirlpool Corporation

July 3, 2012


The opinion of the court was delivered by: Magistrate Judge Geraldine Soat Brown


Before the court is plaintiff Allen Plyler's motion for a new trial. [Dkt 157.] For the reasons below, Plyler's motion is denied.


Allen Plyler filed this suit against defendant Whirlpool Corporation ("Whirlpool"), alleging counts of negligence and strict products liability. (Am. Compl.) [Dkt 25.] Plyer alleged that his Whirlpool microwave oven contained a design defect that caused the microwave to start a fire in his kitchen, which spread to other parts of the home while he was inside. (Id., Cnts. 1 & 2.) The specific defect at issue was the lack of a proper sealant of the microwave's waveguide cover. (Jury Instr. at 20 [dkt151].) Plyler claimed that Whirlpool was negligent in failing to notify him it had recalled the microwave due to this defect. (Id., Cnt. 1.) Plyler further claimed that Whirlpool was strictly liable because it knew or should have known the microwave was defective and failed to adopt an alternative design, leaving the microwave not reasonably safe. (Id., Cnt. 2.) As a result, Plyler claimed he suffered physical and emotional injuries from his experience with the fire. (Id., Ct. 1 ¶¶ 11-14; Ct. 2, ¶¶ 16-18.)

The case was tried before a jury on March 12-14, 2012, and on March 15, 2012, the jury returned a verdict for Whirlpool and against Plyler on both counts. [Dkt 155, 156.] Plyler timely filed this motion on April 12, 2012. See Fed. R. Civ. P. 59(b).


A court may grant a new trial pursuant to Federal Rule of Civil Procedure 59(a) when "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." Frizzell v. Szabo, 647 F.3d 698, 702 (7th Cir. 2011) (internal quotations and citations omitted). Plyler makes three arguments why the court should grant a new trial: (1) the verdict was against the manifest weight of the evidence; (2) the court improperly restricted Plyler from offering his own personal opinions under Federal Rule of Evidence 701; and (3) Plyler should not have been cross-examined about the effect of his divorce on his mental health. (Pl.'s Mot. at 1.) These arguments are addressed in turn.

I. The jury's verdict was not against the manifest weight of the evidence.

A jury verdict will be set aside as contrary to the manifest weight of the evidence only if no rational jury could have rendered it. Moore ex rel. Estate of Grady v. Tuleja, 546 F.3d 423, 427 (7th Cir. 2008). If the record shows the jury's verdict resulted in a miscarriage of justice or if the verdict "cries out to be overturned or shocks [the] conscience," a new trial may be properly granted. Galvan v. Norberg, 678 F.3d 581 (7th Cir. 2012) (quoting Latino v. Kaizer, 58 F.3d 310, 315 (7th Cir. 1995)). In deciding whether to grant a new trial, the court "has the power to get a general sense of the weight of the evidence, assessing the credibility of the witnesses and the comparative strength of the facts put forth at trial." Mejia v. Cook County, Illinois, 650 F.3d 631, 633 (7th Cir. 2011). But the court gives deference to the jury's verdict, particularly in cases with "simple issues but highly disputed facts." Moore, 546 F.3d at 427; accord Mejia, 650 F.3d at 631 n. 1.

Plyler argues that the verdict was against the manifest weight of the evidence for three reasons: (1) Plyler's testimony demonstrated that there was a "sufficient factual basis" for finding that Whirlpool should have advised him of its recall of the microwave; (2) the evidence showed that the origin and source of the fire was the microwave; and (3) the evidence showed that Plyler kept the microwave clean and "avoided flammable condition." (Pl.'s Mot. at 2-4.)

A. Notice of the recall

On his negligence claim, Plyler had the burden to establish the existence of a duty of care owed to him by Whirlpool, a breach of that duty, and an injury proximately caused by that breach. Thompson v. Gordon, 948 N.E.2d 39, 45 (Ill. 2011). Plyler cites his own cross-examination testimony as evidence "sufficient" to establish that Whirlpool breached a duty to notify him about its recall of the subject microwave. (Pl.'s Mot. at 2-3.) Although Plyler admitted that he did not recall filling out and returning the warranty registration card for the microwave, he opined that Whirlpool could have obtained sales and credit card records from Best Buy (where he bought the microwave) as a means of gathering purchaser information and identifying whom to notify about the recall. (Tr., Testimony of Allen Plyler Mar. 13, 2012 at 39-40, 70-73.)*fn1 Had Whirlpool done so, Plyler believes it would have gotten his contact information and been able to notify him. (Id.)

Plyler's motion does not consider the testimony of Larry Lateck, the director of global product safety at Whirlpool. (See Def.'s Resp., Ex. A, Testimony of Larry Latack at 3 [dkt 163], Def.'s Supp., Ex. B, Latack Test. at 25-27 [dkt 165].)*fn2 Mr. Lateck testified that Whirlpool voluntarily went to the Consumer Product Safety Commission ("CPSC") with reports of several incidents involving the microwave model, and instituted a process to recall the affected microwaves. (Id.) That process included looking through Whirlpool's own records of registration and service and requesting information from its trade partners in order to send notices to purchasers. Whirlpool also put out news releases and contacted news media, took out two iterations of ads in national media such as Parade Magazine and put point-of-purchase posters in stores. He testified that the CPSC requires reports on recalls including the number of products reworked, and that, with respect to this microwave model, 75% of the products were reworked. That is much better than the average result of a recall, which, he testified, is 10%-15%. The CPSC closed its file on this recall in 2003. Plyler presented no evidence contradicting or rebutting Mr. Latack's testimony.

Plyler's argument does not demonstrate that the verdict in favor of Whirlpool was against the manifest weight of the evidence. Plyler's speculative testimony that Whirlpool might have done more in its recall process does not establish that what Whirlpool did was negligent, let alone that no reasonable jury could have found against Plyler. Moreover, the jury's verdict on the negligence count could also have resulted from a finding that Plyler failed to establish the causation element of his negligence claim. As discussed ...

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