United States District Court, N.D. Illinois, Eastern Division
FRANCIS GECKER, solely as Trustee for CYNTHIA COLLINS Plaintiff,
MENARD, INC. a/k/a MENARDS Defendant
MEMORANDUM OPINION AND ORDER
GILBERT T. JEFFREY, UNITED STATES MAGISTRATE JUDGE.
case is before the Court on Plaintiffs Motions to Strike
Defendants3');">39; Experts Dr. Jacob L. Fisher [ECF No. 119');">119');">119');">119');">119');">119');">119');">119');">119');">119');">119');">119');">119');">119');">119');">119] and
Dr. William J. Hopkinson [ECF No. 120');">120]. For the reasons
discussed below, Plaintiffs Motions are denied.
alleges she was injured when a shopping cart made contact
with her hip outside of a Menards home improvement store.
Plaintiff and two other individuals were present at the time
of the accident: Donnie Raulston, the store employee pushing
the train of shopping carts, and Cornelia Smiley, a friend
with whom Plaintiff was conversing. While the fact that a
cart struck Plaintiff is not in dispute, the parties disagree
as to the nature, cause, and extent of Plaintiff s injuries.
In anticipation of trial, Defendants retained and disclosed
two experts, Dr. Jacob L. Fisher and Dr. William J.
Hopkinson. Dr. Fisher is a Ph.D. and biomcchanical engineer
who, using photogrammetry, recreated the scene of Plaintiff s
accident in order to opine as to whether the mechanism of the
accident is biomechanically consistent with Plaintiffs
injuries. Dr. Hopkinson, M.D., is a board-certified
orthopedic surgeon and Surgeon-in-Chief at Loyola University
Medical Center. Dr. Hopkinson conducted an independent
medical examination of Plaintiff and opined as to the cause
of Plaintiff s injuries.
Rule of Evidence 702 and the United States Supreme
Court3');">39;s decision in Daubert v. Merrell Dow
Pharmaceuticals, 509 U.S. 579 (1993');">3), govern
the admissibility of expert testimony in
federal court. Hall v. Flannery, 3');">3d 922');">840 F.3');">3d 922, 926
(7th Cir. 2016). The familiar two-step Daubert
framework allows admission of expert testimony that is
"relevant to a fact in issue, is based on sufficient
facts or data, and is the product of reliable scientific or
other expert methods that are properly applied."
Stuhlmacher v. Home Depot U.S.A., Inc., 774 F.3');">3d
405, 409 (7th Cir. 2014); see also. Higgins v. Koch Dev.
Corp., 3');">3d 697');">794 F.3');">3d 697, 704 (7th Cir. 2015) ("Rule 702
and Daubert require the district court to determine whether
proposed expert testimony is both relevant and
reliable."). The district court is the
"gatekeeper" of expert testimony but must be
mindful of the fact that "the key to the gate is not the
ultimate correctness of the expert3');">39;s conclusions,"
but "the soundness and care with which the expert
arrived at her opinion." Schultz v. Akzo Nobel
Paints, LLC, 21 F.3');">3d 426');">721 F.3');">3d 426, 43');">31 (7th Cir. 2013');">3).
will admit expert testimony only where the expert "(i)
is qualified to offer opinion testimony under Rule 702, (ii)
has employed a reliable methodology, (iii) proposes to offer
opinions that follow rationally from the application of his
knowledge, skill, experience, training, or education, and
(iv) presents testimony on a matter that is relevant to the
case at hand, and thus helpful to the trier of fact."
Mintel Int3');">39;l Grp., Ltd v. Neergheen, 63');">36
F.Supp.2d 677, 684-85 (N.D. Ill. 2009) (internal quotation
marks omitted). The proponent of expert
testimony bears the burden of proving the testimony is
admissible. Fail-Safe, LL.C. v. A.O. Smith Corp.,
2');">p. 2d');">744 F.Sup2');">p. 2d870, 887 (E.D. Wis. 2010).
expert may be qualified "by knowledge, skill,
experience, training or education" and need not have any
"particular credentials." Fed.R.Evid. 702; Tuf
Racing Prod., Inc. v. Am. Suzuki Motor Corp., 223');">3 F.3');">3d
585, 591 (7th Cir. 2000). The court must consider
"3');">39;a proposed expert3');">39;s full range of practical
experience as well as academic or technical training when
determining whether that expert is qualified to render an
opinion in a given area."3');">39; Trustees of Chicago
Painters & Decorators Pension, Health & Welfare,
& Deferred Sav. Plan Trust Funds v. Royal Int3');">39;l
Drywall & Decorating, Inc., 3');">3 F.3');">3d 782');">493');">3 F.3');">3d 782, 788 (7th
Cir. 2007) (quoting Smith v. Ford Motor Co., 215
F.3');">3d 713');">3, 718 (7th Cir. 2000)). When assessing whether an
expert is qualified, the court is "not concerned with
the witness3');">39;s general qualifications."
Hall, 840 F.3');">3d at 926. Instead, the court examines
whether the expert has the necessary qualifications to
support 3');">39;"each of the conclusions he
draws.3');">39;" Id. (quoting Gayton v.
McCoy, 3');">3 F.3');">3d 610');">593');">3 F.3');">3d 610, 617 (7th Cir. 2010)). In other
words, the expert must be "qualified to
offer opinions in the specific area of his or her proposed
testimony." Bone Care Int3');">39;l LLC v. Pentech
Pharm., Inc., 2010 WL 3');">3928598, at * 1 (N.D. Ill. 2010).
have broad latitude when deciding whether an expert3');">39;s
testimony is reliable. Higgins, 794 F.3');">3d at 704.
Reliability involves, "among other things: (1) whether
the proffered theory can be and has been tested; (2) whether
the theory has been subjected to peer review; (3');">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." Baugh v. Cuprum S.A.
de C V., 3');">3d 83');">38');">845 F.3');">3d 83');">38, 844 (7th Cir. 2017). To satisfy
reliability, an expert may not "simply assert[s] a
3');">39;bottom line3');">39;" or base her opinion on
"subjective belief or speculation." Metavante
Corp. v. Emigrant Sav. Bank, 19 F.3');">3d 748');">619 F.3');">3d 748, 761 (7th Cir.
2010). Rather, an expert3');">39;s testimony must demonstrate
"the same level of intellectual rigor that characterizes
the practice of an expert in the relevant field."
Kumho Tire Co. v. Carmichael, 26 U.S. 13');">37');">526 U.S. 13');">37, 153');">3
relevance standard for expert testimony is similarly liberal.
Hale v. Stale Farm Mut. Auto. Ins. Co., 2016 WL
6947065, at *2 (S.D. 111. 2016). Simply put, an expert3');">39;s
testimony must "assist the jury in determining any
fact at issue in the case." Stuhlmacher, 774
F.3');">3d at 409. If "the jury is able to evaluate the same
evidence and is capable of drawing its own conclusions,"
then the expert3');">39;s testimony is not helpful. Sanders
v. City of Chicago Heights, 2016 WL 43');">398011, at *4(N.D.
court3');">39;s application of these admissibility standards
"is not intended to supplant the adversarial
process." Ortiz v. City of Chicago, 656 F.3');">3d
523');">3, 53');">36 (7th Cir. 2011). Even "shaky" testimony
may satisfy Rule 702 and Daubert, Bielskis v. Louisville
Ladder, Inc., 3');">3 F.3');">3d 887');">663');">3 F.3');">3d 887, 894 (7th Cir. 2011), as it
ultimately is for the jury to determine the accuracy of
admissible expert evidence that has been "tested"
through 3');">39;"3');">39;vigorous cross-examination,
presentation of contrary evidence, and careful instruction on
the burden of proof3');">39;" Lapsley v. Xtek,
Inc., 689 F, 3');">3d 802, 805 (7th Cir. 2012) (quoting
Daubert, 509 U.S. at 596).
TO STRIKE DR. JACOB L. FISHER3');">39;S REPORT AND BAR DR. FISHER
AS AN EXPERT WITNESS
retained Dr. Fisher, a Ph.D. and biomechanical engineer, to
recreate the scene of Plaintiffs accident using
photogrammetry and to assess whether the mechanism of the
cart accident was biomechanically consistent with Plaintiffs
injuries. Dr. Fisher3');">39;s qualifications as a biomechanical
engineer are not in dispute. Dr. Fisher received a Ph.D. in
bioengineering from the University of Pennsylvania and
graduated summa cum laude with a Bachelor of Science
degree from Pennsylvania State University. He has testified
as an expert in both state and federal court, and his
qualifications have previously passed muster under the
Daubert framework within this circuit. Hopey v.
Spear, 2016 WL 4443');">3205 (C.D. Ill. 2016).
Dr. Fisher arrived at his conclusions based on his review of
depositions and statements of eyewitnesses, medical experts,
and Plaintiff herself. Dr. Fisher also relied upon
photographs of the incident location and three surveillance
videos from the date of the incident. Additionally, Dr.
Fisher reviewed two investigation reports, Plaintiffs medical
records, and with respect to the shopping cart itself,
examined photographs, a specification sheet, and two physical
exemplar shopping carts. He also reviewed several medical
studies related to hip injuries, focusing specifically on the
mechanism and cause of labral tears.
controversial from Plaintiffs perspective was Dr.
Fisher');">39;s use of 3');">3D scans taken by Dr. Fisher');">39;s
colleagues, rather than by Dr. Fisher himself. As Dr. Fisher
stated in his report and during his deposition, he relied on
interior and exterior laser scans of the store entrance taken
by other individuals at Exponent, the engineering and
scientific consulting firm at which Dr. Fisher works. These
scans ultimately aligned, or registered, to build a 3');">3D point
cloud of the location of Plaintiffs accident. Dr. Fisher
himself examined and measured exemplar Menards shopping
carts, which he subsequently used to create a 3');">3D model of the
cart train that made contact with Plaintiff. This model of
the cart train was, in turn, placed within the 3');">3D point cloud
of the accident scene and oriented so that it matched the
length and position of the cart train captured in store
surveillance footage ...