United States District Court, N.D. Illinois, Eastern Division
JOSE M. PADILLA, as the Special Administrator of the Estate of Maximilian Padilla, Plaintiff,
HUNTER DOUGLAS WINDOW COVERINGS, INC., Defendant
[Copyrighted Material Omitted]
For Jose M. Padilla, as the Special Administrator, estate of, Maximilian Padilla, Plaintiff: Arturo Jauregui, Jauregui & Associates, Chicago, IL.
For Hunter Douglas Window Coverings, Inc., Defendant: Jeffrey R. Williams, LEAD ATTORNEY, Schiff Hardin LLP, San Francisco, CA; Joseph J. Krasovec, III, LEAD ATTORNEY, Brian O'Connor Watson, Schiff Hardin LLP, Chicago, IL; Jameson Carroll, PRO HAC VICE, Jameson B. Carroll Law Group, LLC, Atlanta, GA.
John Z. Lee, United States District Judge.
MEMORANDUM OPINION AND ORDER
Maximilian Padilla (" Max" ) died at the age of three from strangulation after becoming entangled in the metal beaded cord used to operate the vertical window blinds in his bedroom. The window blind was manufactured by Defendant Hunter Douglas Window Coverings, Inc. (" Hunter Douglas" ) Plaintiff Jose Padilla, on behalf of his son, brings this action against Hunter Douglas, asserting claims of common law negligence and breach of warranty. In anticipation of trial, each party has offered two experts: Plaintiff has offered Stuart Statler and Robert Wright; and Defendant has offered Joseph Sala and Rose Ray. Each party has also filed motions to exclude the experts offered by the other.
After the parties had submitted their briefs, the Court held a hearing on August 20 and August 21, 2013. Wright and Sala testified in person at that hearing, and the attorneys were given an opportunity to argue all four motions. For the reasons stated herein, the Court grants Defendant's motion to exclude the testimony of Stuart Statler and grants in part and denies in part its motion to exclude the testimony of Robert Wright. The Court also grants in part and denies in part Plaintiff's motions to exclude the testimony of Joseph Sala and the testimony of Rose Ray.
The admissibility of expert testimony is governed by Federal Rule of Evidence 702 (" Rule 702) and the Supreme Court's seminal case Daubert v. Merrell Dow Pharms. Inc., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993). By its terms, Rule 702 allows the admission of testimony by an " expert," someone with the requisite " knowledge, skill, experience, training, or education," to help the trier of fact " understand the evidence or determine a fact in issue." Fed.R.Evid. 702. Experts are only permitted to testify, however, when their testimony is (1) " based upon sufficient facts or data;  the testimony is the product of reliable principles and methods; and  the witness has applied the principles and methods reliably to the facts of the case." Id.
Daubert requires the district court to act as the evidentiary gatekeeper, ensuring that Rule 702's requirements of reliability and relevance are satisfied before allowing the finder of fact to hear the testimony of a proffered expert. See Daubert, 509 U.S. at 589; see also Kumho Tire Co. v. Carmichael, 526 U.S. 137, 147-49, 119 S.Ct. 1167, 143 L.Ed.2d 238 (1999); Lapsley v. Xtek, Inc., 689 F.3d 802, 805 (7th Cir. 2012). District courts have broad discretion in determining the admissibility of expert testimony. See Gen. Elec. Co. v. Joiner, 522 U.S. 136, 142, 118 S.Ct. 512, 139 L.Ed.2d 508 (1997); Lapsley, 689 F.3d at 810 (" we 'give the district court wide latitude in performing its gate-keeping function and determining both how to measure the reliability of expert testimony and whether the testimony itself is reliable'" ) (quoting Bielskis v. Louisville Ladder, Inc., 663 F.3d 887, 894 (7th Cir. 2011)).
Before admitting expert testimony, district courts employ a three-part analysis: (1) the expert must be qualified as an expert by knowledge, skill, experience, training, or education; (2) the expert's reasoning or methodology underlying his testimony must be scientifically reliable; and (3) the expert's testimony must assist the trier of fact in understanding the evidence or to determine a factual issue. Bielskis, 663 F.3d at 893-94. The purpose of the Daubert inquiry is to scrutinize the proposed expert witness testimony to determine if it has " 'the same level of intellectual rigor that characterizes the practice of an expert in the relevant field' so as to be deemed reliable enough to present to a jury." Lapsley, 689 F.3d at 805 (quoting Kumho Tire Co., 526 U.S. at 152). The proponent of the expert bears the burden of demonstrating that the expert's testimony would satisfy the Daubert standard by a preponderance of the evidence. Lewis v. CITGO Petroleum Corp., 561 F.3d 698, 705 (7th Cir. 2009). With these standards in mind, we turn to the parties' motions.
I. Stuart Statler
Stuart Statler was appointed to serve as a Commissioner on the United States Consumer Product Safety Commission (" CPSC" ) from August 1979 through May 1986. During his tenure, he also served as the acting-Chairperson and Vice-Chair of the CPSC. Def. Statler Br., Ex. A (" Statler Report" ) at 3. Although the precise contours of his opinions are not clear from his periphrastic expert report, it appears that Statler will testify that: the window blind at issue was defectively designed; Hunter Douglas knew of the " foreseeable risk of children being strangled to death" by the looped cords; a safer alternative design was economically practical and technologically feasible at the time of the incident; Hunter Douglas should have affixed a tag warning users of the risks; and Hunter Douglas acted unreasonably and without the exercise of due care by ignoring the attendant risks. See id. at 20-21.
Defendant Hunter Douglas now seeks to preclude Statler from testifying as an expert at trial. In its motion, Defendant contends that, despite Statler's tenure at the CPSC, he is not qualified to testify as an expert regarding window blind design and safety. Defendants also argue that Statler's opinions on this topic, as well as his opinion that Hunter Douglas acted unreasonably as a window blind manufacturer, fall short of the requirements of Daubert. Because the Court agrees on both counts, Defendant's motion to exclude Statler is granted.
A. Statler's Qualifications
Defendant first argues that Statler is unqualified to testify as an expert
regarding the topics of window blind design and safety, as well as the commercial and technological availability of alternative window blind designs. " Whether a witness is qualified as an expert can only be determined by comparing the area in which the witness has superior knowledge, skill, experience, or education with the subject matter of the witness's testimony." Gayton v. McCoy, 593 F.3d 610, 616 (7th Cir. 2010); see also Tr. of Chi. Painters and Decorators Pension v. Royal Int'l Drywall and Decorating, 493 F.3d 782, 787-88 (7th Cir. 2007); Carroll v. Otis Elevator Co., 896 F.2d 210, 212 (7th Cir. 1990). Here, Statler intends to testify that: Defendant's corded window blinds were defectively designed; other alternatives were reasonably available; the warning labels on the window blinds were inadequate; and Hunter Douglas acted unreasonably and ignored its corporate responsibility by selling corded window blinds and providing inadequate warning labels. See Statler Report at 20-21.
Turning first to his opinions regarding the design of the corded window blinds, as Defendants point out, Statler himself admitted during his deposition that he has no practical experience or training in the field of window blind design. Def. Statler Br., Ex. B (" Statler Dep." ) 39:1-3. Nor does he have any training as an engineer, which he concedes would be necessary for him to understand how the physical mechanisms to open and close window blinds operate.
Q: Have you ever taken any steps to familiarize yourself with the considerations that are involved in designing specifically the mechanisms used to open and close and raise and lower and tilt window coverings?
A: I would view that more as the work of any engineer, mechanical engineer probably. But no, I have not undertaken any special analysis in that area. That's not my area of expertise.
Id. 39:4-14. Stalter also conceded that he has no experience designing any type of consumer product, let alone window blinds. Id. 54:18-20. Nor did he conduct any studies or tests to support his opinion that the blinds were defectively designed. Id. 41:18-23.
Invoking Kumho Tire Co., v. Carmichael, 526 U.S. 137, 119 S.Ct. 1167, 143 L.Ed.2d 238 (1999), Plaintiff nevertheless maintains that Statler is qualified to offer his opinions " based on his extensive experience dealing with consumer product safety," including those related to window blind safety. Pl. Statler Resp. at 10. For instance, Plaintiff contends that Statler " was actively involved in the issue of window blind cord strangulation hazards by encouraging organizations such as the American Window Covering Manufacturers Association . . . and the manufacturers of blinds" during his tenure at the CPSC. Id. at 9. Plaintiff also states that Statler " directed the Commission staff to work with the manufacturers and the [Association]." Id. But this argument is unpersuasive.
Plaintiff is correct that the CPSC studied incidents of child strangulation associated with looped window blind cords during Statler's tenure at the CPSC, see Statler Report at 9-10, and that CPSC staff reported their findings to the Commissioners. See Statler Dep. 38:1-15. But, under Rule 702 and Daubert, the Court must decide " whether this particular expert had sufficient specialized knowledge to assist the jurors in deciding the particular issues in this case." Kumho, 526 U.S. at 156, 119 S.Ct. at 1178 (internal quotations omitted; emphasis added). The crux of this dispute rests upon whether the window blind cord that resulted in
Max's death was defectively designed and whether alternative designs were reasonably available.
Dhillon v. Crown Controls Corp., 269 F.3d 865 (7th Cir. 2001), is instructive. In Dhillon, the Seventh Circuit enumerated a number of factors that an expert should consider when opining that a design is defective and an alternative available, including: " the degree to which the alternative design is compatible with existing systems . . . ; the relative efficiency of the two designs; the short- and long-term maintenance costs associated with the alternative design; the ability of the purchaser to service and to maintain the alternative designs; the relative cost of installing the two designs; and the effect, if any, that the alternative design would have on the price of the machine." Id. at 870 (internal quotations omitted). The court further observed that " many of these considerations are product- and manufacturer-specific and cannot be reliably determined without testing." Id. Here, the record fails to establish that Statler developed any particular expertise in window blind cord design or the availability of viable alternatives. Instead, Statler's experience with window blinds is limited to his general experience as a CPSC Commissioner from 1979 to 1986 and those instances when the Commissioners were " informed" by CPSC staff about documented incidents involving strangulation of children by window blind cords. Although his experience may allow him to testify as to the actions taken by CPSC regarding corded window blinds and the associated risks, it does not qualify him to testify about the appropriateness of the design in question or the economic and technological availability of design alternatives.
The Supreme Court's opinion in Kumho does not mandate a different result. The expert in Kumho, like Statler, testified as to the existence of a defective design (automobile tires, in that case). But, unlike Statler, the expert in Kumho had a masters degree in mechanical engineering and had worked at Michelin America, Inc., on tire design for ten years. Kumho, 526 U.S. at 153, 119 S.Ct. at 1176. Statler, on the other hand, has absolutely no engineering or design background and only generalized exposure to window blind incidents while at the CPSC.
Plaintiff also argues that other federal courts have permitted Statler to testify as an expert, and that this Court should as well. But this argument too is unavailing. In one of the cases cited by Plaintiff, Brown v. Overhead Door Corp., Case No. 06-C-50107, 2008 WL
(N.D. Ill. Dec. 11, 2008), the defendant filed a motion to exclude Statler's expert testimony, which the court treated as a motion in limine. See id. 2008 WL 5539388, at *5. In so doing, the court stated that it " expresses no opinion on the merits of [defendant's motion to exclude Statler's testimony]." Id. The second case, Rountree v. Ching Feng, 560 F.Supp.2d 804 (D. Alaska 2008), is equally unhelpful. There, the court allowed Statler to testify as an expert, but the scope of his testimony was severely limited to the knowledge that he gained during his tenure as a CPSC Commissioner. See Def. Statler Reply Br., Ex. 1, Roundtree, Case No. 3:04-cv-00112-JWS, slip op. at 5, 8 (D. Alaska Jun. 17, 2008). The court excluded his testimony as to the remaining topics. Id. at 5 (excluding opinion that defendant, a trade association, owed a duty to plaintiffs or had failed to adequately warn them).
On the other side of the ledger is Hayes v. MTD Prods., Inc., 518 F.Supp.2d 898 (W.D. Ky. 2007). The plaintiff in Hayes was injured while using a zero turn radius lawn mower. He offered Statler as an expert to opine that defendant's sales of the lawn mower without a rollover protection system was unreasonable and " flew in the face of any viable product safety program." Id. at 899. The defendant asked the court to exclude Statler's testimony, and the court agreed, stating:
Statler does appear to be the " quintessential expert for hire." Statler is well-credentialed, with his service on the CPSC and years of consulting work. However, his expertise in this area is generic; in his report, Statler does not profess to be an expert on riding lawn mowers but on " consumer product safety generally, manufacturer and seller responsibility, and the consideration of dangerous products by the [CPSC]." No objective proof has been provided to the Court that Statler is, for instance, a recognized expert in the field of riding mower safety, or a particular expert on ROPS. Furthermore, Statler's educational qualifications are not those of an engineer, but those of a lawyer.
Id. at 901. Here too, although Statler's professional pedigree is impressive, there is no evidence that he is a recognized expert in window blind design or has any particular expertise in that field. Accordingly, the Court bars Statler from offering his opinion as to the reasonableness of the window blind design at issue and the availability of design alternatives.
As for Statler's opinion that the warning labels on the window blinds were inadequate, the Court notes that Statler appears to have some experience evaluating and designing warning labels for consumer products during his tenure as a consultant with A. T. Kearney from 1986 to 1987 and as a product safety and regulatory consultant from 1987 to the present. But again, this experience (as far as can be determined by the record) is general at best, and Plaintiff has provided no elucidation as to the specific nature of Statler's experience. What is clear is that he has never designed a warning label for window blinds, Statler Dep. 133:17-22, and did not consider any empirical evidence to support his opinion that the warning labels were inadequate. Id. 136:17-137:9. This is not splitting hairs. It is not unreasonable to
think that the users of lawn mowers, power tools, all-terrain vehicles, and fireworks (all of which are specifically mentioned in Statler's curriculum vitae ) would require different types and forms of warning labels than an operator of a window blind. Or perhaps this is not the case at all, but Plaintiff has failed to provide any basis for the Court to believe that Statler's prior experience with warning labels provides him with superior knowledge and expertise regarding the efficacy of warning labels in the context of window coverings or window blinds. See Lewis, 561 F.3d at 705 (party offering expert bears burden to show admissibility by a preponderance of the evidence). This failure of proof, coupled with Statler's lack of any formal education or training in the fields of psychology or human factors, renders him unqualified to testify that the warning labels on the blinds were inadequate. See Moore v. P& G-Clairol, Inc., 781 F.Supp.2d 694, 704 (N.D. Ill. 2011) (Kendall, J.) (expert who had " no background or training in psychology or any field related to the design of warnings" was not qualified to testify regarding adequacy of warnings).
In short, Statler's professional background, while impressive, does not render him an expert capable of assessing the safety and design of Hunter Douglas window blinds, the adequacy of the warning labels on the blinds, or the costs and benefits of implementing any available alternatives. From this, it also follows that Statler is equally unqualified to offer an opinion as to whether Hunter Douglas' actions with respect to the corded window blinds and labels were unreasonable, devoid of due care, or contrary to its " safety responsibilities." Statler Report at 22.
B. Statler's Methodology
Even assuming, arguendo, that Statler is qualified to offer the opinions that he gives, the Court finds his opinions unreliable under Rule 702 and Daubert and precludes his testimony on this independent basis. In assessing the reliability of an expert's testimony, Rule 702 requires the district court judge to evaluate whether it " is based on a correct application of a reliable methodology and that the expert considered sufficient data to employ the methodology." Stollings v. Ryobi Techs., Inc., 725 F.3d 753, 766 (7th Cir. 2013). Further, " ' Daubert offers a non-exclusive list of factors to aid judges in determining whether [a] particular expert opinion is grounded in reliable scientific methodology. Among the factors articulated are: (1) whether the proffered theory can be and has been tested; (2) whether the theory has been subjected to peer review; (3) whether the theory has been evaluated in light of potential rates of error; and (4) whether the theory has been accepted in the relevant scientific community.'" Winters v. Fru-Con Inc., 498 F.3d 734, 742 (7th Cir. 2013) (quoting Dhillon, 269 F.3d at 869). District judges have " considerable leeway in deciding in a particular case how to go about determining whether particular expert testimony is reliable." Kumho, 526 U.S. at 152, 119 S.Ct. 1167. In this case, Statler has failed to demonstrate
that he has employed a reliable methodology in arriving at his opinions.
First, Statler admits that he has not performed any tests related to the safety aspects of corded window blinds. Statler Dep. 41:18-23. Nor did he analyze any of the factors involved in window blind design. Id. 39:4-11. In an apt illustration, Statler testified that a break-away window blind cord was a safer alternative design to the traditional corded one at issue here, but he did no evaluation of how the breakaway window blind cord would actually affect the operation and mechanics of the window blinds. Id. 129:2-8. Statler's failure to test the alternative break-away window blind cord is particularly troublesome because " '[i]n alternative design cases, [the Seventh Circuit has] consistently recognized the importance of testing the alternative design'" as a factor that the district court should consider in evaluating the reliability of the proposed expert testimony. Winters, 498 F.3d at 742 (quoting Dhillon, 269 F.3d at 870.) See also Cummins v. Lyle Indust., 93 F.3d 362, 368 (7th Cir. 1996) (" Our cases have recognized the importance of testing in alternative design cases." ). In much the same way, Statler seeks to testify that the warning labels on ...