Wielgus v. Ryobi Technologies, Inc. et al

Filing 248

MEMORANDUM Opinion and Order. Signed by the Honorable Young B. Kim on 5/16/2012. (aac, )

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
JAROSLAW WIELGUS,

)
)
Plaintiff,
)
)
v.
)
)
RYOBI TECHNOLOGIES, INC., et al., )
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Defendants.
)

08 CV 1597

Magistrate Judge Young B. Kim

May 16, 2012

MEMORANDUM OPINION and ORDER
In this product-liability suit brought pursuant to this court’s diversity jurisdiction,
Jaroslaw Wielgus alleges 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—a table saw that the
defendants manufactured and/or sold. His complaint includes claims for negligence, breach
of implied warranty, and strict liability under Illinois law. (R. 84.) The parties consented to
this court’s jurisdiction, (R. 65; R. 90), and the case has progressed to the pre-trial phase.
Currently pending before this court are four motions in limine filed by Wielgus and 37 filed
by the defendants. To streamline the resolution of this voluminous set of motions, the court
has grouped them into several distinct categories and plans to roll out a series of opinions
dealing with each category separately. In this first opinion, the court tackles Wielgus’s first
motion in limine along with defendants’ motion numbers 10, 15, 29, and 31. These motions
all center on the safety of the blade-guard attached to the BTS10S or relate to alleged safety

issues connected to the BTS10S generally but not involved in Wielgus’s accident
specifically. For the following reasons, Wielgus’s first motion in limine (R. 205) is granted
in part and denied in part, defendants’ motion numbers 10 (R. 177) and 29 (R. 196) are
granted, defendants’ motion number 15 (R. 182) is denied, and defendants’ motion number
31 (R. 198) is granted in part and denied in part.
Legal Standard
Federal district courts have broad discretion in ruling on motions in limine. Aldridge
v. Forest River, Inc., 635 F.3d 870, 874-75 (7th Cir. 2011). Such motions perform “a
gatekeeping function and permit[] the trial judge to eliminate from further consideration
evidentiary submissions that clearly ought not be presented to the jury because they clearly
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).
Absent that showing, evidentiary rulings should be deferred until trial, where decisions can
be better informed by the context, foundation, and relevance of the contested evidence within
the framework of the trial as a whole. Anglin v. Sears, Roebuck & Co., 139 F.Supp.2d 914,
917 (N.D. Ill. 2001). “A pre-trial ruling denying a motion in limine does not automatically
mean that all evidence contested in the motion will be admitted at trial,” Bruce v. City of
Chicago, 09 CV 4837, 2011 WL 3471074, at *1 (N.D. Ill. July 29, 2011), because the court

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is free to revisit evidentiary rulings as appropriate in its exercise of discretion, see Luce v.
United States, 469 U.S. 38, 41-42 (1984).
Analysis
The core issue to be resolved at trial in this case is whether the Ryobi BTS10S was
unreasonably dangerous when it left the defendants’ control in 2005. See Faucett v.
Ingersoll-Rand Min. & Mach. Co., 960 F.2d 653, 655 (7th Cir. 1992). Wielgus plans to show
that the saw was unreasonably dangerous in part by demonstrating that his injuries would not
have occurred had the BTS10S been equipped with safety devices including a riving knife
or a modular blade guard. He also seeks to introduce evidence of alleged safety flaws that
were not directly involved in his own accident. Those claimed flaws include, among other
things, the BTS10S’s allegedly inadequate warnings, the ease and frequency with which
users of the saw removed the blade guard, and other supposedly flawed parts or engineering
controls. The following motions deal with the disputes surrounding these categories of
evidence.
I.

Plaintiff’s Motion in Limine to Preclude Defendants From Using as a Defense the
Technological or Economic Feasibility of Incorporating Either a Riving Knife or
a Modular Blade Guard
In his first motion in limine, Wielgus seeks to prevent the defendants from disputing

the technological or economic feasibility of incorporating either a riving knife or a modular
blade guard into the BTS10S. These devices maintain a constant distance between the guard
and the back of the saw blade and help to prevent the user’s hand from contacting the blade

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during kickback incidents like the one that caused Wielgus’s injuries. Wielgus argues that
the defendants cannot contest the feasibility of incorporating those devices in this case
because they made what Wielgus characterizes as judicially binding admissions to the
contrary in four related actions pending in the United States District Court for the District of
New Jersey (“the New Jersey actions”). Those statements took place in the context of a
discovery dispute in the New Jersey actions surrounding whether the defendants would be
required to produce documents relating to their incorporation of riving knives and modular
blade guards into table saws in accordance with UL 987, an industry safety standard that
went into effect on January 31, 2010. In disputing the New Jersey plaintiff’s discovery
request, the defendants took the position that they “have never asserted and will not assert
that the modular blade guard that is now in use was not feasible at the time of the
manufacture of the saws at issue.” (R. 205, Ex. A, June 10, 2011 Ltr. Br. at 7.) Wielgus
argues that in light of this statement of their position in the New Jersey actions, the
defendants should be judicially estopped in this case from challenging the feasibility of
incorporating a riving knife or a modular blade guard onto the BTS10S.
In response to Wielgus’s motion, the defendants state that they will not dispute that
incorporating a riving knife or a modular blade guard into the BTS10S would have been
technologically feasible prior to January 31, 2010, when UL 987 took effect. Rather, the
defendants plan to argue only that it was not economically feasible for them to incorporate
these features prior to UL 987’s effective date. According to their theory, incorporating the

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riving knife or modular blade guard into their table saws prior to January 31, 2010, would
have violated the then-existing UL standard, which in turn would have prevented them from
selling the saws through mainstream distributors and stores. The defendants argue that this
is the exact position they took in the New Jersey actions, as revealed by their attorney’s
statements when viewed in their entirety:
It was feasible in the sense that it could have physically been put on; however,
these saws are manufactured pursuant to safety regulations . . . [a]nd the use
of . . . the current guard, would have been a violation of the safety standard
published by [UL] at the time these saws were manufactured. . . . Physically
it would have been feasible to use those guards—the guards that are currently
being used, but I’m not saying that would have met the safety standard. In
fact, it would have been a violation of the safety standard in effect at the time
the saws we’re talking about in this case.
(R. 234, Defs.’ Resp., Ex. C at 38-39.) In other words, according to the defendants, their
position in the New Jersey actions was the same as their position here, that incorporating the
riving knife or modular blade guard would have been feasible from the perspective of
implementation cost and technology, but not commercially feasible because prior to the
effective date of UL 987 those modifications would have affected their ability to sell the
table saw at stores that require compliance with industry safety standards.
This court agrees with the defendants that Wielgus reaches too far in his attempt to
paint their prior representations in the New Jersey actions as a blanket admission that
incorporating a riving knife or modular blade guard onto the BTS10S was feasible in every
respect. The evidence that Wielgus has submitted regarding the defendants’ statements
shows that their counsel preserved their challenge to the commercial feasibility of the
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relevant changes. Viewing his statements in their entirety, it is clear that the defendants’
counsel was conceding the technological feasibility of certain features while preserving his
clients’ ability to argue that those alternate features would have rendered the saw
unmarketable prior to 2010. Under Illinois law, Wielgus is entitled to prove that the BTS10S
was unreasonably dangerous when it left the defendants’ control by showing that an
alternative design was feasible. See Blue v. Environmental Eng’g, Inc., 215 Ill.2d 78, 93
(2005).

But he must show that it “was feasible in terms of costs, practicality, and

technology.” See id. The defendants’ prior statements amount to admissions only with
respect to the question of technological feasibility, but they are not sufficient to justify the
application of judicial estoppel with respect to the questions of cost and practicality.
Accordingly, Wielgus’s first motion in limine is granted only to the extent that the defendants
will be precluded from arguing that it was not technologically feasible to incorporate a riving
knife or modular blade guard into the BTS10S prior to 2010. The motion is denied to the
extent that Wielgus seeks to preclude the defendants from showing that those features were
not economically feasible.
II.

Defendants’ Motion in Limine No. 15 to Preclude Evidence of David Peot’s 2004
Guard Design Patent
Somewhat related to Wielgus’s first motion is defendants’ motion number 15, which

seeks to preclude any evidence regarding the 2004 patent application filed by David Peot,
Ryobi’s former director of advanced technologies, describing a new blade-guard design for
table saws. In what the defendants now describe as Peot’s attempt to differentiate his
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proposed design from the traditional guard designs, Peot’s application includes terms like
“flimsy” and “difficult to use” in describing the kind of guard that came with the BTS10S
model involved in Wielgus’s accident. The defendants argue that any statements made in the
patent application are inadmissible hearsay and are irrelevant to the question of whether the
BTS10S was reasonably safe for its intended purposes. They also argue that the prejudicial
impact of Peot’s statements outweighs their probative value because it is “undeniable” that
patent applicants say things in support of their applications that are biased and untrustworthy
in an attempt to make their inventions “stand out from the rest.” (R. 182, Mot. ¶¶ 3, 6.)
This court agrees with Wielgus that Peot’s patent application is directly relevant to his
position that an alternative blade-guard design was feasible when the BTS10S was
manufactured. Although the defendants have said they will not contest the technological
feasibility of an alternate blade guard, their stipulation in that regard does not eliminate
Wielgus’s entitlement to present evidence to the jury on the issue. See Blue v. International
Bhd. of Elec. Workers Local Union 159, __ F.3d __, 2012 WL 1071704, at *5 (7th Cir.
April 2, 2012). This court also agrees with Wielgus that Peot’s statements are admissible
under Federal Rule of Evidence 801(d)(2)(D) as a party admission. A statement is not
hearsay if it is offered against a party and “was made by the party’s agent or employee on a
matter within the scope of that relationship and while it existed.” Fed. R. Evid. 801(d)(2)(D).
All the rule requires is that “the statement be made by an individual who is an agent, that the
statement be made during the period of the agency, and that the matter be within the subject

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matter of the agency.” Young v. James Green Mgmt., Inc., 327 F.3d 616, 622 (7th Cir. 2003).
The defendants admit that at the time Peot completed the patent application, he was
employed as Ryobi’s director of advanced technologies, and they have submitted no response
to Wielgus’s assertion that the patent application falls within the subject matter of Peot’s
work at Ryobi because he submitted the patent application either on Ryobi’s behalf or with
its permission. (R. 233, Pl.’s Resp. at 76.) Accordingly, the defendants have not met their
burden of showing that the patent application should be excluded as hearsay.
Nor have the defendants demonstrated that the potentially prejudicial impact of Peot’s
statements outweigh their probative value under Rule 403. Evidence will be excluded under
this rule only if its probative value is “insignificant compared to its inflammatory nature so
that the evidence unfairly prejudices the defendant.” United States v. Gorman, 613 F.3d 711,
720-21 (7th Cir. 2010) (emphasis in original) (internal quotation marks omitted). Nothing
about the statements the defendants have highlighted can be characterized as inflammatory,
let alone unfairly prejudicial, especially given their concession that the technology it
describes was feasible as early as 2004. For all of these reasons, defendants’ motion in
limine number 15 is denied.
III.

Defendants’ Motion in Limine No. 10 to Bar Reference to Alleged Defective
Conditions in the Subject BTS10S Which Did Not Cause or Contribute to the
Subject Accident
In their motion number 10, the defendants seek to exclude any evidence pertaining to

any allegedly deficient design features of the BTS10S that did not cause or contribute to

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Wielgus’s accident. Specifically, they ask this court to prevent Wielgus’s Rule 26 expert,
Darry Robert Holt, from testifying regarding what he has characterized as deficiencies in the
BTS10S’s fence assembly, table insert, table surface, miter gauge, and other safety features.
According to the defendants, because none of the cited “deficiencies” were at play in
Wielgus’s accident, they should be excluded as being irrelevant and unfairly prejudicial. See
Fed. R. Evid. 401-03. Wielgus responds by asserting that he will not use the evidence
regarding these defects to show causation, but rather to bolster the “duty” and “breach”
elements of his negligence claims. According to him, Holt’s testimony will show two things:
(1) that the BTS10S had a high propensity for accidents related to blade contact, leading to
a duty on the part of the defendants to follow what he describes as “well-established risk
avoidance principles”; and (2) a breach of that duty in the defendants’ failure to adopt better
safety features, such as flesh-detection technology. (R. 233, Pl.’s Resp. at 62-63.)
Although Holt’s testimony regarding what he views as deficiencies in the BTS10S’s
design are not relevant to causation, whether it is admissible to show duty and breach is a
closer call. On the one hand, the purported flaws Holt identifies might lead to a duty to
implement better safety features to make the saw safer; on the other hand, the disconnect
between those flaws and Wielgus’s accident renders the testimony of limited use. It is as if
in a case involving a child who is injured after choking on a small toy the plaintiff were to
introduce evidence that the toy contained toxic chemicals that could poison a child, even
though poison had no role in the hypothetical plaintiff’s injuries. The chemicals might render

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the toy unreasonably dangerous, but not with respect to the injuries sustained by the
hypothetical choking victim. Here, Wielgus can establish the duty and breach elements of
his claim by relying on what he believes to be the unsafe features that contributed to his
accident. Asking the jury to sift through evidence related to tangential perceived design
flaws is likely to lead to confusion and unlikely to help it resolve the issues at stake.
In support of his opposition to the defendants’ motion, Wielgus asserts that the district
judge in a related case, Osorio v. One World Techs., Inc., 716 F.Supp.2d 155 (D. Mass.
2010), denied this same motion and that the First Circuit upheld the decision. But the
transcript conveying the Osorio judge’s decision on the relevant motion in limine shows that
the judge denied the defendants’ motion as “overly broad,” but informed the plaintiff that he
would have to explain why that evidence is relevant before it would be admitted at trial.
(R. 233, Pl.’s Resp., Dwyer Aff., Ex. J, Feb. 4, 2010 Hearing Tr. at 6.) In affirming the
judge’s decision to let this evidence in, the First Circuit determined that Holt’s testimony
regarding defects in a blade guard the plaintiff had admitted not using were relevant to
“whether Osorio was partly at fault for the accident that caused his injury” because he had
removed the safety device. Osorio v. One World Techs., Inc., 659 F.3d 81, 90-91 (1st Cir.
2011). In other words, Holt’s testimony in Osorio regarding the allegedly flawed bladeguard design was relevant there because the plaintiff sought to prove that he was not the only
consumer who removed the safety guard before using the saw at issue, and that Ryobi should
have accounted for that situation. Id. at 91. Here, Wielgus has not argued that any of the

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deficiencies Holt identifies have any bearing on his accident or the defendants’ duties with
respect to the design flaws that caused or contributed to his accident. That is a significant
point of departure between this case and Osorio. Because the defendants here have
persuasively argued that the extraneous defects Holt identifies are not relevant to the issues
to be decided in this case, motion number 10 is granted.
IV.

Defendants’ Motion in Limine No. 29 to Bar Reference to Some Users Allegedly
Not Using the Guard
Similarly, in motion 29 the defendants seek to bar Wielgus from introducing evidence

that BTS10S users commonly removed the blade guard and used the saw without the guard
because the blade guard is perceived as being difficult to use. The defendants point out that
Wielgus was using the blade guard at the time of his accident, and argue that accordingly,
whether other consumers sometimes removed the guard has no bearing on the issues in this
case. In opposing the motion, Wielgus again asserts that this evidence is broadly relevant to
his claim that the defendants breached their duty, and argues that the fact that he was using
the blade guard at the time of his injury “is not germane.” (R. 233, Pl.’s Resp. at 97.)
Wielgus’s reliance on the Osorio decision to support this relevance argument is
unhelpful. In Osorio, the First Circuit upheld the admissibility of evidence regarding other
users’ propensity not to use the blade guard specifically because “Ryobi’s counsel tried to
convince the jury that Osorio was largely to blame” because he conceded that he had not used
the blade guard. 659 F.3d at 91. There, Osorio tried to counter Ryobi’s argument regarding
his contributory negligence by showing “that it was common for consumers to remove this
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equipment and that Ryobi should have accounted for this probability in its design.” Id. Here,
the parties agree that Wielgus was using the blade guard at the time of his accident. Thus,
the contributory negligence issue that justified introducing the evidence of how other users
treated the blade guard in Osorio is not at play here.
Wielgus argues that this evidence is nonetheless relevant because it demonstrates that
the defendants had a duty to install flesh-detection technology to protect users who removed
the blade guard, and that had they fulfilled that duty, Wielgus’s injuries could have been
prevented. He can make his point at trial by introducing evidence that is more in line with
how Wielgus was using the BTS10S prior to the accident: that the defendants knew about
kickback accidents that were substantially similar to Wielgus’s, that an improved blade guard
could have prevented his injuries, and/or that the blade guard in question was generally
defective, “flimsy,” and inadequate. When balanced, the danger of jury confusion posed by
the introduction of evidence that users commonly removed the blade guard outweighs any
possible probative value such evidence may lend to support Wielgus’s theory. Accordingly,
defendants’ motion number 29 is granted.
V.

Defendants’ Motion in Limine No. 31 to Bar Reference to Inadequacy of
Warnings
In defendants’ motion number 31, they seek to preclude Wielgus from introducing any

evidence or argument regarding alleged defects in the warnings, instructions, or safety labels
attached to the BTS10S. In support of the motion, the defendants cite Wielgus’s deposition
testimony in which he admitted that he never read the saw’s operating manual. They argue
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that in light of this testimony there is no support for “an argument that the presence of
adequate warnings or instructions would have prevented his injuries,” and that accordingly,
any reference to the inadequacy of the safety information as the proximate cause of
Wielgus’s injuries must be barred. (R. 198, Mot. ¶ 2.) In response, Wielgus argues that he
should be able to argue that the inadequacy of the warnings on the saw itself—rather than in
the operating manual—contributed to his injuries and that evidence of the absence of
warnings in the manual is admissible to rebut certain testimony of the defendants’ proposed
expert, Peter Domeny.
“[U]nder established Illinois precedent, when a design defect is present at the time of
sale, the manufacturer has a duty to take reasonable steps to warn at least the purchaser of
the risk as soon as the manufacturer learns or would have learned of the risk created by its
fault.” Jablonski v. Ford Motor Co., 2011 IL 110096, ¶ 11. But among the limits on that
duty is the rule that where a “plaintiff failed to read the warning labels, the alleged
inadequate content of those warnings could not have proximately caused his injuries.” Kane
v. R.D. Werner Co., Inc., 275 Ill.App.3d 1035, 1037 (1st Dist. 1995). In other words, the
plaintiff pressing a failure-to-warn case must show that a better warning would have
prevented his injuries—a bleak prospect where the plaintiff neglected to consult the warnings
at all. See Broussard v. Houdaille Indus., Inc., 183 Ill.App.3d 739, 744-45 (1st Dist. 1989).
Although the parties have briefed this motion as if it were contested, it is unclear that
there is any real disagreement about how the evidence surrounding the BTS10S’s warning

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symbols can be used. The defendants have made clear that they “are not moving to bar any
and all evidence relating to the warnings and instructions,” but rather seek to bar evidence
that attempts to establish that inadequate safety information was “the proximate cause of
plaintiff’s injuries” given Wielgus’s admission that he did not read the operating manual.
(R. 198, Mot. ¶ 7.) Wielgus admits that he did not read the operating manual but argues that
he should be allowed to show that the warnings on the saw itself were inadequate. That
position is consistent with the case law cited by the defendants, in that Wielgus will only be
allowed to argue that the warnings on the BTS10S itself were inadequate if there is evidence
that he read those warnings or that the placement of the warnings on the saw was somehow
inadequate. See Kane, 275 Ill.App.3d at 1036 (noting that a failure to warn claim may be
maintained despite a plaintiff’s failure to read the warning where the plaintiff claims “the
warning is inadequate with respect to prominence” (citation omitted)).
With respect to the warnings in the operating manual, Wielgus does not assert that he
should be allowed to create a connection between their alleged inadequacy and his injury, but
rather argues that he should be allowed to reference their inadequacy only to cross-examine
the defendants’ expert, Peter Domeny. Domeny may testify that Wielgus was injured in part
because he was misusing the saw by placing his left hand on top of the work piece to hold
it in place. To the extent Domeny offers that testimony, Wielgus argues that he should be
allowed to cross-examine him regarding the fact that the BTS10S’s operating manual does
not describe that hand positioning as a misuse. In other words, Wielgus will offer the manual

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only to cast doubt on the expert’s testimony criticizing his use of the saw. According to
Wielgus, the defendants’ choice not to describe the cited hand position in the operating
manual as a “misuse” of the saw demonstrates that—contrary to Domeny’s proposed
testimony—they do not actually consider that positioning a misuse. Wielgus’s failure to
consult the manual does not prevent him from relying on it for this limited purpose.
Accordingly, defendants’ motion number 31 is granted to the extent that Wielgus will not be
allowed to argue that any inadequacy of the warnings in the operating manual proximately
caused or contributed to his injuries. The motion is denied to the extent that the defendants
seek to preclude Wielgus from arguing that the warnings on the saw itself were inadequate.
It is further denied to the extent that Wielgus intends to offer evidence regarding the
operating manual to rebut anticipated testimony from Domeny criticizing Wielgus’s handling
of the saw.

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Conclusion
For the foregoing reasons, Wielgus’s first motion in limine (R. 205) is granted in part
and denied in part, defendants’ motion numbers 10 (R. 177) and 29 (R. 196) are granted,
defendant’s motion number 15 (R. 182) is denied, and defendants’ motion number 31
(R. 198) is granted in part and denied in part.
ENTER:

_________________________________
Young B. Kim
United States Magistrate Judge

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