The opinion of the court was delivered by: Magistrate Judge Young B. Kim
MEMORANDUM OPINION and ORDER
In this diversity suit, Jaroslaw Wielgus brings claims of negligence, breach of implied warranty, and strict liability under Illinois law (R. 84), alleging that Ryobi Technologies, Inc., One World Technologies, Inc., and Home Depot, USA, Inc. (collectively, "the defendants"), are liable for hand injuries he sustained in March 2006 while using the Ryobi Model BTS10S tablesaw, a product that the defendants manufactured or sold and Wielgus contends was unreasonably dangerous when it left the defendants' control in 2005.*fn1 This court has been rolling out opinions resolving the parties' voluminous motions in limine in groups organized by the motions' subject matter. In this, the final such opinion in a series of eight, this court decides what are perhaps the most hard-fought of the original 41 motions in limine: those dealing with expert testimony regarding whether flesh-detection technology known as "SawStop" presented a feasible alternative to the subject tablesaw-the Ryobi BTS10S-when it left the defendants' hands in 2005. For the following reasons, defendants' motions in limine numbers 4 and 5 are granted in part and denied in part, and motions in limine numbers 6, 19 and 25 are granted. Also, Wielgus's third motion in limine is denied without prejudice and his fourth motion in limine is granted in part and denied in part.
The purpose of motions in limine is to iron out evidentiary disputes prior to trial "to avoid the delay and occasional prejudice caused by objections and offers of proof" once the trial is underway. See Wilson v. Williams, 182 F.3d 562, 566 (7th Cir. 1999). Such motions "sharpen the focus of later trial proceedings" by performing "a gatekeeping function" and allowing "the trial judge to eliminate from further consideration evidentiary submissions that clearly ought not be presented to the jury" because they "would be inadmissible for any purpose." Jonasson v. Lutheran Child & Family Servs., 115 F.3d 436, 440 (7th Cir. 1997). The moving party bears the burden of demonstrating blanket inadmissibility. See Mason v. City of Chicago, 631 F.Supp.2d 1052, 1056 (N.D. Ill. 2009). Federal district courts have broad discretion in resolving motions in limine, see Aldridge v. Forest River, Inc., 635 F.3d 870, 874-75 (7th Cir. 2011), and may revisit preliminary rulings later as dictated by the ebb and flow of trial, see Luce v. United States, 469 U.S. 38, 41-42 (1984).
At the trial in this case the jury will be asked to decide whether the tablesaw model that caused Wielgus to suffer severe injuries was unreasonably dangerous when it left the defendants' control in 2005. See Kelso v. Bayer Corp., 398 F.3d 640, 642 (7th Cir. 2005). Wielgus's case revolves around his theory that at the time the defendants manufactured the BTS10S, a feasible alternative to the design existed in the form of a saw incorporating SawStop technology. SawStop-which was invented by Wielgus's core expert witness, Dr. Stephen Gass-relies on the capacitance of the human body to detect contact between human flesh and a saw blade. When the flesh-detection device is triggered it signals the saw to brake. The result, according to Wielgus, is that accidents that might otherwise have resulted in a severe laceration or amputation will cause only a scratch or minor cut. Wielgus intends to use the testimony of Dr. Gass and other experts to show that in 2005, it was economically and mechanically feasible to have incorporated SawStop technology into tablesaws like the BTS10S. That proposed evidence includes data regarding the value of industry-wide tablesaw sales and the societal costs of tablesaw injuries. The defendants seek to preclude Wielgus from introducing most of this evidence.
I. Defendants' Motion in Limine No. 4 to Bar the Testimony of Darry Robert Holt
Defendants' motion in limine number 4 is granted in part and denied in part. In this motion, the defendants ask this court to preclude Wielgus's proposed expert, Darry Robert Holt, from giving his opinions concerning design defects in the BTS10S, the causal relationship between those defects and Wielgus's accident, and the likelihood that Wielgus's injuries could have been prevented had the saw he was using been equipped with SawStop. According to the defendants, Holt's testimony does not meet the standards for expert testimony set forth in Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993), because he is not qualified to discuss tablesaw engineering or SawStop technology and he did not employ reliable, scientific methodology in developing his opinions.
Federal Rule of Evidence 702-which adopts the standards set forth in Daubert and its progeny-dictates that "a witness who is qualified as an expert by knowledge, skill, experience, training, or education may testify in the form of an opinion or otherwise if: (a) the expert's scientific, technical, or other specialized knowledge will help the trier of fact to understand the evidence or to determine a fact in issue; (b) the testimony is based on sufficient facts or data; (c) the testimony is the product of reliable principles and methods; and (d) the expert has reliably applied the principles and methods to the facts of the case." The Seventh Circuit has broken the rule down into a three-part analysis, requiring the district court to ask first whether the witness is qualified, second whether his or her methodology is scientifically reliable, and third whether the opinion is relevant in the sense that it will "assist the trier of fact to understand the evidence or to determine a fact in issue." Ervin v. Johnson & Johnson, Inc., 492 F.3d 901, 904 (7th Cir. 2007). The goal of this analysis "is to assure that experts employ the same 'intellectual rigor' in their courtroom testimony as would be employed by an expert in the relevant field." Jenkins v. Bartlett, 487 F.3d 482, 489 (7th Cir. 2007) (quoting Kumho Tire Co. v. Carmichael, 526 U.S. 137, 152 (1999)). The burden rests with the proponent of the expert testimony to demonstrate that it satisfies this analysis by a preponderance of the evidence. Lewis v. CITGO Petroleum Corp., 561 F.3d 698, 705 (7th Cir. 2009). That said, rejecting an expert's testimony wholesale "is the exception rather than the rule, and the trial court's role as gatekeeper is not intended" to replace cross-examination and the presentation of conflicting evidence as the traditional mechanisms for highlighting the weaknesses in expert testimony. See Spearman Indus. v. St. Paul Fire & Marine Ins. Co., 128 F.Supp.2d 1148, 1150 (N.D. Ill. 2001) (internal quotation omitted); see also Daubert, 509 U.S. at 596.
The first arrow the defendants aim at Holt's testimony is their assertion that he is simply "a hired gun" with no qualifications to discuss the matters set forth in his report beyond the experience he has amassed over years of serving as a litigation consultant. It is true that this court is obligated to "ensure that it is dealing with an expert, not just a hired gun," see Tyus v. Urban Search Mgmt., 102 F.3d 256, 263 (7th Cir. 1996), but Wielgus has demonstrated that Holt's experience is more substantive than the defendants' characterization. Holt's report shows that he is a mechanical engineer and a licensed professional engineer with approximately 35 years of experience as a consulting engineer whose role it is to evaluate the safety design of products, including tablesaws. (R. 171, Ex. C, Holt Report at 1.) He has been investigating tablesaw accidents since the mid-1970's. (Id. Ex. A, Holt Dep. at 49.) In the course of his work he has tested and examined all kinds of tablesaws and he is familiar with Ryobi's entire line. (See Stollings v. Ryobi Techs., Inc., 08 CV 4006, June 12, 2012, Tr. at 153.) Holt has developed a mechanism for incorporating a riving knife onto a standard tablesaw and has run tests on saws equipped with SawStop technology and analyzed SawStop prototypes to gauge the technology's efficacy. (Id. at 153-54.) In fact, counsel in a similar proceeding represented that Holt has spent "somewhere between 25 and 50 percent of his time" over the last five years testing and examining tablesaws. (Id. at 156.) His experience as a mechanical engineer who investigates best practices in product design plus his practical experience in testing alternate guarding devices provide the requisite qualifications for Holt to opine regarding the mechanics of the BTS10's blade-guarding system and the risk-hazard analysis that is a standard feature of the product-design process. See Trustees of Chi. Painters & Decorators Pension, Health & Welfare, & Deferred Savs. Plan Trust Funds v. Royal Int'l Drywall & Decorating, Inc., 493 F.3d 782, 787-88 (7th Cir. 2007) (recognizing that "Rule 702 specifically contemplates the admission of testimony by experts whose knowledge is based on experience") (quotation omitted); Tyus, 102 F.3d at 263 (noting that "genuine expertise may be based on experience or training").
This court is not swayed by the defendants' argument that proof of his "hired gun" status can be seen in the fact that in other tablesaw cases Holt has not critiqued manufacturers' failure to incorporate a riving knife-a criticism he makes of the defendants in this case. As Wielgus points out, Holt's testimony in a given case necessarily depends on the facts surrounding the particular accident at issue, and there is nothing to prevent an expert from updating his opinion depending on new facts. Nor have the defendants shown that Holt was retained in another case to discuss the desirability or feasibility of a riving knife and in the course of doing so gave testimony inconsistent with his current opinion. And it would be fairly ironic if years of having been deemed qualified to testify on related matters by other courts were in itself sufficient to disqualify an expert from testifying in the current case. If anything, given the focus of Holt's proposed analysis on design mechanics and industry-recognized risk/hazard analysis, the fact that courts in numerous other cases have found Holt qualified to testify in the area of mechanical engineering both within and outside of the tablesaw industry bolsters, rather than detracts from, Holt's qualifications to testify as Wielgus proposes here. See Traharne v. Wayne/Scott Fetzer Co., 156 F.Supp.2d 697, 704 (N.D. Ill. 2001) (noting that in some cases "the imprimatur of judicial approval as an expert" in other instances supports a proposed expert's qualifications).
The defendants next target the methodologies Holt used to come up with his opinion, arguing that he has done nothing more than analyze the history of decisions that went into the design of the BTS10S to render a conclusory opinion. How to determine the reliability of an expert's methodology is a matter over which the court enjoys broad latitude. Kumho Tire, 526 U.S. at 141-42. A non-exhaustive list of relevant factors to use in the determination includes the following: "(1) whether the theory has been or is capable of being tested; (2) whether the theory has been subjected to peer review and publication; (3) the theory's known or potential rate of error; and (4) the theory's level of acceptance within the relevant community." Bielskis v. Louisville Ladder, Inc., 663 F.3d 887, 894 (7th Cir. 2011). But the inquiry is flexible enough to turn on the facts of a particular case, Kumho Tire, 526 U.S. at 150, and an expert may show that he has met "the same standards of intellectual rigor that are demanded in their professional work" by demonstrating that they have reviewed "experimental, statistical, or other scientific data generated by others in their field," Cummins v. Lyle Indus., 93 F.3d 362, 369 (7th Cir. 1996). The court must resist the temptation to evaluate the opinion's correctness-a question that must be left to the jury-and focus instead on whether "the methodology underlying that testimony is sound." Smith v. Ford Motor Co., 215 F.3d 713, 719 (7th Cir. 2000). It is up to the proposed expert to explain those methods and principles, rather than pointing to a bottom-line conclusion. Metavante Corp. v. Emigrant Sav. Bank, 619 F.3d 748, 761 (7th Cir. 2010).
Here, Holt has adequately explained the methods he used to devise his opinion with respect to what he perceives as flaws in the BTS10S's blade-guard design. Holt opines that the guarding system in question is inadequate because it is not equipped with an independent riving knife.*fn2 (R. 171, Ex. C, Holt Report at 3.) In 2007, Holt examined and tested a Bosch 4100 tablesaw equipped with a modular-guard assembly, and in 2009 and 2010 he examined the BTS10S. (Id. at 2.) He also reviewed industry documents relating accident data, engineering treatises, studies of the causes of kickback accidents like the one Wielgus experienced, and documents produced in discovery in this case and other tablesaw lawsuits. (Id. at 2-3, 8-9.) Together with Holt's extensive experience in investigating tablesaw accidents and analyzing product design safety, Holt's examination of the BTS10S and review of relevant safety data provides a sufficient platform for his opinion regarding the benefits of an independent riving knife. See Winters v. Fru-Con, Inc. 498 F.3d 734, 742 (7th Cir. 2007) (noting that a proposed expert's testimony may be reliable where it relies on "the data generated by other researchers, making proper personal observations"). The defendants' motion does not include a direct attack on the methods Holt used with respect to his opinion regarding the independent riving knife, focusing instead on his risk/hazard analysis and SawStop testing. Accordingly, this court concludes that Holt's opinion with respect to the BTS10S's failure to include an independent riving knife is sufficiently reliable to pass the Daubert gate-keeping stage.
Holt has also provided a reliable basis for his opinion with respect to whether the defendants conducted a proper risk/hazard analysis. According to Holt, a proper risk/hazard analysis uses a matrix to assess the probability of an adverse event and then assesses the severity of the injury the adverse event might cause to determine what measures should be incorporated to protect against a hazard that cannot be designed out of a product. (R. 171, Ex. C, Holt Report at 12.) Holt opines that the defendants did not engage in a proper risk/hazard assessment, and states that if they had, they would have concluded that the residual risk of using the BTS10S's guard assembly is unacceptable. (Id. at 13.) In reaching this opinion, Holt relies on his review of formal promulgated standards in engineering handbooks and treatises, as well as his years of experience in reviewing product design safety. (Id. at 14.) The defendants characterize Holt's report in this area as doing nothing more than summarizing principles of safety engineering and then concluding that the defendants are negligent for not following them. Although it is true that expert testimony giving an opinion with respect to an ultimate legal conclusion in the case-here, whether the defendants acted negligently-is improper, see United States v. Sinclair, 74 F.3d 753, 757, 758 n.1 (7th Cir. 1996), that is not what Holt has done in his expert report. Instead, he outlines the industry-accepted principles of risk/hazard analysis and then describes his opinion as to whether the particular actions the defendants took lived up to those standards.
(R. 171, Ex. C, Holt Report at 12-20.) He does not give an opinion as to the legal issue of negligence, but rather provides an opinion as to whether the process the defendants engaged in complies with standard practices. The defendants are free to counter that opinion with evidence of their own, see Daubert, 509 U.S. at 596, but nowhere has Holt provided a legal conclusion that would justify excluding his testimony outright.
Similarly, the defendants argue that Holt should not be permitted to testify with respect to the efficacy of SawStop in mitigating injuries because the testing he performed on SawStop saws is insufficiently reliable. In forming his opinion, Holt performed a number of tests to determine whether SawStop is effective in detecting contact with flesh and in braking at a speed sufficient to minimize injuries. He initially conducted tests on a SawStop prototype in 2005, testing whether ripping various types of wood with varying moisture content would impact the saw's performance. (R. 171, Ex. C, Holt Report at 23.) Holt reports experiencing no false trips or equipment component failures during those tests. (Id.) He also fed hand-held hot dogs into the saw at various speeds to test the brake engagement. (Id.) In 2008, Holt conducted additional tests on a SawStop cabinet saw, using pressure-treated boards of various sizes and levels of moisture to test ripping functioning. (Id. at 23-24.) He also used hot dogs in these tests to determine the ability of the SawStop technology to brake quickly, evaluating stop speed using a high-speed camera. (Id. at 24.) Those tests verified that the SawStop technology consistently caused the blade to brake within three milliseconds of contact with the hot dog. (Id. at 25.) Based on those tests, Holt opines that the SawStop technology "can be expected to minimize injuries from blade contact under any accident scenario." (Id. at 26.)
The defendants criticize Holt's testing methods because he used a prototype contractor saw in 2005 and a heavyweight cabinet saw in 2008. According to the defendants, these saws are too physically different from the portable, lightweight BTS10S to produce any reliable results. They also argue that by 2008, the technology had greatly improved beyond the state of the art when the BTS10S was manufactured, such that the tests on the newer saws have little bearing on how the saws would have performed in 2005. That may be so (or it might not; Wielgus vehemently disagrees), but these arguments go to the weight of the testimony, and thus are best made through effective cross-examination and the presentation of contrary evidence. See Metavante, 619 F.3d at 762. Essentially, in arguing that Holt's tests on the 2008 saw do not bear on its efficacy in 2005, the defendants are attacking the results of his tests. That they can do at trial, but at this stage in the game, this court must focus on the methods, not the results. See Lapsley v. Xtek, Inc., __ F.3d __, 2012 WL 3055865, at *1 (7th Cir. July 27, 2012) ("A Daubert inquiry is not designed to have the district judge take the place of the jury to decide ultimate issues of credibility and accuracy."); Winters, 498 F.3d at 742 ("The focus of the district court's Daubert analysis must be solely on principles and methodology, not on the conclusions they generate." (quotation omitted)). And this court finds that Holt's extensive testing of the speed with which a saw armed with SawStop will consistently brake in the event of flesh contact is sufficiently reliable to support his opinion regarding SawStop's effectiveness.
Most of the defendants' critique of Holt's testimony with respect to SawStop runs toward his ability to opine regarding whether it was feasible to incorporate SawStop technology. For example, they criticize Holt for admitting that he had not determined how SawStop could be incorporated into particular kinds of saws and for opining without support about the potential time frame within which a tablesaw manufacturer could incorporate the technology. But the tests Holt performed were not designed to determine feasibility; they were designed to help Holt develop an opinion with respect to whether SawStop technology works as designed to mitigate injuries like Wielgus's. It is worth pointing out that many of the points the defendants argue in criticizing Holt's methodology stem from answers he gave to deposition questions that strayed beyond the scope of his expert report. In particular, they critique his failure to run a cost-benefit analysis to show it would be worthwhile to incorporate SawStop and they highlight his response to a deposition question regarding the costs of SawStop technology in which he said that if consumers "can't afford it, they shouldn't have it." (R. 171, Mot. at 14.) But those critiques are based on a false premise: that Holt intends to endorse the mechanical feasibility of incorporating SawStop technology onto a portable tablesaw. If that were true, this court might agree with the defendants that Holt's report does not reflect that he has engaged in the kind of analysis that would allow him to give a reliable opinion with respect to feasibility. But as Wielgus has made clear, whether SawStop is a feasible alternative is a question outside the scope of Holt's proposed testimony, which he offers only to clarify the alleged design defects in the ...