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Hill v. Brass Eagle, Inc.

United States District Court, N.D. Illinois, Eastern Division

August 29, 2016

TYLER HILL, Plaintiff,


          MATTHEW F. KENNELLY, District Judge

         During a paintball game, one teenage boy shot another, Tyler Hill, in the eye with a paintball. Though Hill had been wearing a protective facemask that day, he removed the mask before being shot, allegedly because the mask had fogged up and limited his vision. Hill has sued the manufacturers of the mask-Brass Eagle, Inc., JT Sports, LLC, and KEE Action Sports, LLC (defendants)-asserting claims for products liability (count one), breach of implied warranty of merchantability (count two), breach of implied warranty of fitness (count three), and breach of express warranty (count four). Defendants have moved for sanctions against Hill for spoliation of evidence on the part of Hill's expert witness, Jason Babcock. They have also moved to exclude Babcock's testimony and for summary judgment. For the reasons discussed below, the Court denies defendants' motions.


         Hill was fourteen years old on September 18, 2009, the day of his eye injury. That afternoon, he and nine other fourteen and fifteen year old boys were playing paintball in a vacant field in Antioch, Illinois. At dusk, while the boys were still playing, Hill declared himself out of the game after being shot by a paintball in his midsection. He says that when he stood up in the field, he could not see his surroundings because the protective facemask he was wearing had become fogged over. Hill removed the mask from his face, and another player subsequently shot a paintball that struck Hill and injured his left eye.

         Hill's father had purchased the JT Entry Goggle Soft Stream mask as a gift for Hill. The mask's packaging stated that the lens on the mask's goggles was "fog resistant." Though Hill received the mask and other paintball items in a cardboard gift box, his father told him the items were new, and they did not look used. The manufacturer's instructions were not included in the gift box Hill received, but defendants maintain that all new JT Sports products are accompanied by instructions warning that fogging may occur and that users should never remove goggles during play even if fogging does occur. Despite not having read the instructions, Hill admits that he did not expect the mask to be fog-proof on the day he was injured. He had used the mask in a paintball game once before, several weeks prior to the date of his injury. In that prior game and throughout the day of his injury, Hill had attempted to clear the fogging on his mask by sticking a finger inside the mask and wiping the goggles. But he says that by the time of his injury, the wiping method was no longer effective at clearing the fog to allow him to see. All of the other boys who were playing with Hill on the day of his injury testified that their masks were also fogging that day.

         Hill, by his mother, initially filed suit in state court, alleging negligence against the boy who shot him and negligent supervision against the boy's father. Hill later amended that initial complaint to add claims against defendants. After Hill reached a settlement agreement with the boy who shot him and his father, he voluntarily dismissed the case against the remaining defendants in November 2013. Hill then filed this action, again in state court, against the current defendants in September 2014. Defendants removed the case to federal court based on diversity of citizenship.

         Hill's counsel retained Jason Babcock, a chemist, to examine the mask. Babcock explains in his expert report that single-pane polycarbonate lenses, the type of lens used in the mask Hill was wearing, are intrinsically hydrophobic and will thus cause condensed moisture to bead up and distort light transmission through the lens, creating a fogging effect. According to Babcock, manufacturers of paintball mask lenses typically treat the masks with anti-fog coatings-by dipping the lenses in coating solutions-to make the lens surfaces hydrophilic, in other words, more wettable. He conducted tests on a number of paintball masks, including Hill's mask, to assess their anti-fog properties. At the time Babcock received Hill's mask to begin testing, it had paint, debris, and dirt on it.

         One of the methods Babcock used to test the masks came from JT Sports' own Policies and Procedures manual, which included a test procedure to evaluate the anti-fog properties of a lens. That test requires washing the lens and refreshing the anti-fog coating with an aftermarket product, conditioning the lens at 40 degrees Fahrenheit for a minimum of four hours, removing the lens, fogging it with one's breath or with a garment steamer, and recording the time for the fog to dissipate. A lens passes the test if no fog forms or if the fog remains on the lens for no longer than three seconds.

         Babcock conducted this test for eight paintball masks-five masks with single-paned lenses and three masks with dual-paned lenses. The single-paned lenses included Hill's mask, two other JT Sports masks that were used by other boys at the paintball game, a new JT Sports mask that contained a fan system to reduce fogging, and a new U.S. Army Ranger Performance Goggle, purchased from a sporting goods store. Of that group, only the U.S. Army Ranger mask passed the test. Two of the masks with dual-paned lenses were JT masks, only one of which passed the test. Another company manufactured the other mask with a dual-paned lens, and that mask passed. From this testing, Babcock concluded that double-pane lenses generally fare better than single-pane lenses and that even new, single-pane JT Sports lenses can fail the company's own anti-fog test.

         Babcock also conducted a field test with the same masks. He chose a day with weather conditions similar to those on the day of Hill's injury and had test subjects wear the masks during outdoor physical activity, noting the time when the inner lens began to fog. Babcock found that none of the new masks fogged during the ten-minute test duration, but the portion of the single-pane JT Sports mask that he left unwashed did fog. Based on the field test and the test outlined in the JT Sports Policies and Procedures Manual, Babcock determined that other mask lens designs and masks made by other manufacturers were more effective at preventing fog formation than the mask Hill had used. The mask that Hill used, Babcock concluded, does not sufficiently prevent fogging under certain conditions during outdoor activity and is thus not suitable for its intended use.

         After the submission of his expert report and Hill's voluntary dismissal of the prior state law case, but before Hill filed this action, Babcock conducted additional testing, and Hill's counsel provided the results and conclusions from such testing to defendants' counsel. In this round of testing, Babcock examined the surfaces of five different JT Sports mask lenses (four used by Hill and other boys at the paintball game and one newly purchased), as well as a U.S. Army Ranger Performance Goggle. Using methods of elemental analysis-namely, energy dispersive x-ray spectroscopy (EDX) and Fourier transform infrared spectroscopy (FTIR)-Babcock found no evidence that any of the JT Sports lenses contained a polysiloxane coating, the anti-fog coating that JT Sports claimed it applied to its masks' lenses. The EDX and FTIR testing did indicate, however, that the U.S. Army Ranger mask contained a polysiloxane coating. In this round of testing, Babcock also conducted a qualitative comparison of the contact angle formed when applying a small droplet of water to the lenses, and he found that the JT Sports lenses were less hydrophilic (and thus less resistant to fogging), as water droplets tended to bead up more on those lenses than the droplet on the U.S. Army Ranger lens. Finally, Babcock again conducted the anti-fog test from the JT Sports Policies and Procedures manual, and he noted the superior performance of the U.S. Army Ranger lens in comparison to the JT Sports lenses. From these subsequent tests, Babcock concluded that the mask Hill wore on the day of his injury did not have an anti-fog coating and did not have one at the time it was purchased.

         To conduct this second round of testing, Babcock cut out sections of material from the lens of the mask. Although Babcock notified Hill's counsel before cutting the lens, neither Babcock nor Hill's counsel notified defendants or their experts that the mask would be cut. Defendants contend that the mask is no longer in the same condition as when Babcock originally took possession of it and that its original condition can never be restored. As a result, they maintain, one can no longer look through the mask to determine what a wearer of the mask could see, preventing defendants' experts from conducting field tests using the mask and depriving jurors of the opportunity to try on the mask in its original condition to see how the mask looked fogged and unfogged. According to defendants, Babcock's destructive testing of the mask, conducted with knowledge of his duty to preserve evidence, constitutes spoliation of evidence. They have thus moved for sanctions, including dismissal of Hill's case, exclusion of Babcock's testimony and all testimony regarding the condition of the mask after the incident, and an adverse instruction regarding Hill's failure to produce evidence.

         Even if the Court denies defendants' motion for sanctions, defendants contend that Babcock's testimony should be excluded because (1) he lacks the proper experience and qualifications to offer an opinion on the adequacy of a paintball mask's design and (2) the opinions he intends to offer in this case are not based on a reliable methodology. Babcock admits that he is not an expert in protective headgear design, paintball, lens design, anti-fog coatings, or anti-fog lenses. Defendants argue that his lack of expertise in these areas renders him unqualified to offer expert testimony about the design of the subject mask. Despite his lack of experience in those particular subject areas, Babcock does have a Ph.D. in chemistry, and he has over thirteen years of experience in developing new products and researching polymers, metals, ceramics, and other inorganic and organic materials. Hill contends that this experience qualifies Babcock to offer his opinions in this case regarding the scientific principles governing the fogging effect on the lenses of protective masks, as well as the effectiveness of the anti-fogging properties of the mask and the masks of JT Sports' competitors.

         In addition to questioning Babcock's qualifications, defendants challenge the reliability of the methods he used to form his opinions. They argue that his conclusions have not been tested by reliable methods and are not independently supported by peer review or peer-reviewed literature, and that they are instead based upon his own speculation. In particular, they note that his opinions concerning the safety of the mask at issue when it was placed on the market are unreliable because by the time Babcock tested the mask, it was a number of years old and was covered with paint and dirt. They also fault Babcock for conducting his field experiment of the masks without recreating the exact conditions from the day Hill was injured. Finally, they attack his conclusion that the mask lacked an anti-fog coating, because the mask did, they insist, contain a polyurethane coating, which can limit fogging by preventing scratching of the lens. Hill counters that Babcock did indeed test his conclusions and that they were, in fact, largely based on extensive and reliable laboratory and field testing. Regarding the failure to test the anti-fog properties of polyurethane, Babcock says that he based his testing of the mask's anti-fog coating on representations from defendants that their masks were coated with polysiloxane. Thus, he says he was justified in only testing for that particular anti-fog coating at the time.

         According to defendants, if the Court bars Babcock's testimony, it must also grant their motion for summary judgment, because Hill will be left without any expert testimony to prove that the mask was defective or that the defect caused his injury. But even if Babcock is permitted to offer his testimony, defendants maintain that summary judgment is appropriate because Hill cannot show-even with the benefit of Babcock's opinions-that his mask was unreasonably dangerous or that the mask's alleged defect was a proximate cause of his eye injury. Hill maintains that he has raised a genuine issue of fact for the jury about whether the mask's tendency to fog made it unreasonably dangerous and about whether the type of injury he suffered was reasonably foreseeable, and thus proximately caused by the mask's alleged defect.


         A. Defendants' motion for sanctions

         The parties appear to agree that state law governs the issue of sanctions for spoliation of evidence in a diversity case; both sides rely on Illinois case law and Illinois Supreme Court Rule 219 in their arguments. The Court notes at the outset, though, that some other courts have applied federal law in diversity cases to determine whether sanctions are appropriate for alleged spoliation of evidence. See, e.g., Kucik v. Yamaha Motor Corp., U.S.A., No. 2:08-CV-161-TS, 2009 WL 5200537, at *2 (N.D. Ind. Dec. 23, 2009) (citing Trask-Morton v. Motel 6 Operating L.P., 534 F.3d 672 (7th Cir. 2008), in concluding that federal law applied to plaintiff's request for sanctions for destruction of evidence). As the Court concludes at the end of this section, the outcome of the spoliation inquiry would be the same under either federal or state law, so the Court will analyze the issue under Illinois law as both sides have done in their briefs. Cf. J.S. Sweet Co. v. Sika Chem. Corp., 400 F.3d 1028, 1032 (7th Cir. 2005) (applying state spoliation law where parties agreed state law applied in context of independent tort claim for spoliation).

         The Illinois Supreme Court has determined that courts may impose sanctions for the destructive testing of evidence, even if the testing occurs prior to litigation and before the entry of any protective order. See Shimanovsky v. Gen. Motors Corp., 181 Ill.2d 112, 122, 692 N.E.2d 286, 290 (1998). Although destructive testing may have value and may actually be difficult to avoid in certain cases, "such testing must be authorized in the sound discretion of the trial court and be permitted only when the rights of the opposing litigant are not unduly prejudiced." Id. (internal quotation marks omitted). It is undisputed that Babcock engaged in destructive testing of an important piece of evidence-namely, the allegedly defective product in a products liability case- and that neither he nor Hill or Hill's counsel sought a court's or defendants' permission to conduct such testing. The ...

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