Padilla v. Hunter Douglas Window Coverings, Inc. et al
Filing
198
MEMORANDUM Opinion and Order Signed by the Honorable John Z. Lee on 2/6/14Mailed notice(ca, ).
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILILNOIS
EASTERN DIVISION
JOSE M. PADILLA, as the Special
Administrator of the Estate of
Maximilian Padilla,
Plaintiff,
v.
HUNTER DOUGLAS WINDOW
COVERINGS, INC.,
Defendant.
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Case No. 09 CV 1222
Judge John Z. Lee
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.
Legal Standard
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; [2] the testimony is the product of reliable principles and
methods; and [3] 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 Kuhmo Tire Co.
v. Carmichael, 526 U.S. 137, 147-49 (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 (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)
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.
Discussion
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.
3
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
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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 (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.” Kuhmo,
526 U.S. at 156, 119 S. Ct. at 1178 (internal quotations omitted; emphasis added). The crux of
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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. 1 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
1
In his report, Statler also summarizes publications by the CPSC and others that post-date his
departure from the CPSC. It is unclear what, if any, additional expertise Statler can provide in reviewing
them and reciting their conclusions to the jury. For example, there is no indication in the record that
Statler has developed an expertise in the history of the window blind industry (by, say, publishing books
or articles or conducting independent research in this area) or that he ever studied these issues prior to
being retained as an expert in this case. See Minemayer v. B-Roc Representatives, Inc., No. 07-C-1763,
2009 WL 3757378, at *5 (N.D. Ill. Oct. 29, 2009) (expert testimony that is “prepared solely for purpose
of litigation . . . is to be viewed with some caution”).
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the appropriateness of the design in question or the economic and technological availability of
design alternatives. 2
The Supreme Court’s opinion in Kumho does not mandate a different result. The expert
in Kuhmo, like Statler, testified as to the existence of a defective design (automobile tires, in that
case). But, unlike Statler, the expert in Kuhmo had a masters degree in mechanical engineering
and had worked at Michelin America, Inc., on tire design for ten years. Kuhmo, 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 5539388 (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-00112JWS, slip op. at 5, 8 (D. Alaska Jun. 17, 2008).
2
The court excluded his testimony as to the
Plaintiff also strenuously contends that “Statler is not offering any of these opinions as a scientific
expert” but as a “warnings and safety expert” based upon his experience with product safety risks and
“his specialized knowledge as to how manufacturers can and should act forcibly and responsibly to
reduce or eliminate these hazards.” Pl. Statler Resp. Br. at 5. But, the fact remains that he is offering
highly technical opinions regarding the design of corded window blinds and the availability of alternative
designs. As Statler concedes, these matters are beyond his ken.
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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 Prod., 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. 3 But again, this
3
Statler’s curriculum vitae contains very general references to his work with warnings, noting that
among the “areas covered” since 1987 are “labeling” and “warnings,” Pl. Br. at 17 (“Statler CV”), and
that, as a partner at A. T. Kearney, he “[d]evise[d] advertising, packaging, and warnings to reduce
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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
likelihood of legal claims and adverse judgments.” Id. at 18. His deposition testimony is also devoid of
specific examples or illustrative experiences. See also Statler Dep. 131:12-25.
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labels were unreasonable, devoid of due care, or contrary to its “safety responsibilities.” Statler
Report at 22. 4
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 Tech., 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.
4
Plaintiff also urges the Court to consider an additional case that is currently pending in Arizona,
Deasey v. Bud’s Drapery Den, Inc., No. C2011-5784 (Ariz. Sup. Ct. Sept. 12, 2013). Plaintiff claims
that, although the Arizona state court barred Statler from testifying as an expert under Rule 702 and
Daubert, the court nonetheless determined that Statler was sufficiently qualified to offer his opinion on
window blinds and that his methodology was both relevant and reliable. As Defendant correctly points
out, however, the state court did not go so far as Plaintiff suggests and, in fact, expressed many of the
same concerns as the Court does here.
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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 363, 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 the subject window blinds were inadequate; yet, he did not
consider any empirical information to support his conclusion.
Statler Dep. 136:17-137:9.
Indeed, when asked how he would have designed the warning label, Statler was completely
unprepared to propose one. Id. 212:4-10.
In response, Plaintiff strenuously contends that “Statler is not offering any of these
opinions as a scientific expert” but as a “warnings and safety expert” based upon his experience
with product safety risks and “his specialized knowledge as to how manufacturers can and
should act forcibly and responsibly to reduce or eliminate these hazards.” Pl. Statler Resp. at 5.
In so doing, Plaintiff attempts to distinguish between a “scientific expert,” whose testimony is
“subjected to thorough scientific inquiry,” and an “expert with ‘specialized knowledge’ who can
assist the trier of fact.” Id. at 11. Using this logic, Plaintiff argues that Statler has demonstrated
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“professional rigor” by conducting extensive relevant research and using his significant practical
experience to render his conclusions in this case.” Id. at 12. But this argument misses the mark.
As an initial matter, Plaintiff’s suggestion that the reliability of “non-scientific” testimony
should be assessed by a less stringent standard than scientific testimony is misplaced. Indeed,
the Supreme Court in Kumho held the opposite, extending the underpinnings of Daubert to “nonscientific” expert testimony. See Kuhmo, 526 U.S. at 149, 119 S.Ct. at 1175 (“We conclude that
Daubert’s general principles apply to the expert matters described in Rule 702.”). See also
Cummins, 93 F.3d at 367 n.2 (“The basic tasks of the district court remains essentially the same –
to ensure that the evidentiary submission is of an acceptable level of ‘evidentiary reliability.’”);
Dahlin v. Evangelical Child and Family Agency, No. 01-CV-1182, 2002 WL 31834881, at *7
(N.D. Ill. Dec. 18, 2002) (noting that, under Kuhmo, the “characterization of testimony as
‘scientific’ or ‘non-scientific’ . . . does not govern the applicability of Daubert”). “The objective
of that [gatekeeping] requirement is to ensure the reliability and relevancy of expert testimony.
It is to make certain that an expert, whether basing testimony upon professional studies or
personal experience, employs in the courtroom the same level of intellectual rigor that
characterizes the practice of an expert in the relevant field.” Kuhmo, 526 U.S. at 152, 119 S.Ct.
at 1176.
As for the methodology that Statler employed to arrive at his opinions, Plaintiff cites to
excerpts from Statler’s deposition and contends that his methodology “consists mainly of ‘some .
. . 25 years of consulting experience, 40 years of involvement in consumer product safety . . .
also on a published document originally issued by the CPSC . . . in ’76-’77 period and then
revised again . . . around 2005-2006 . . . – a guideline for manufacturers . . . in terms of good
manufacturing practices.” Pl. Statler Resp. at 12 (citing Statler Dep. 84:23-85:11). The repeated
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mantra throughout Statler’s deposition and Plaintiff’s brief is that Statler relied upon “decades of
experience with various consumer products.” Pl. Statler Resp. at 12. See also Statler Dep. 50:27; 85:14-16; 131:17-25. But “a witness who invokes ‘my expertise’ rather than analytical
strategies widely used by specialists is not an expert as Rule 702 defines that term.” Zenith
Elects. Corp. v. WH-TV Broad. Corp., 395 F.3d 416, 419 (7th Cir. 2005).
Perhaps mindful of this hurdle, Plaintiff attempts to give some substance to Statler’s
methodology by citing to twelve factors that Statler himself lists as “critical considerations” in
determining the soundness of a product’s design. See Pl. Statler Resp. at 12-13; Statler Report at
7-8. Of those factors, however, Statler himself acknowledges that he failed to evaluate a number
of them, including the functionality of alternative designs, how the alternative design(s) would
affect the product’s consumers, as well as the functionality and utility of the subject window
blinds. See Statler Dep. 129:2-8; 41:18-23.
In the end, it is apparent that Statler’s methodology consisted only of reviewing some
government publications, a limited collection of documents from this case, and declaring his
opinions relying upon nothing but his “extensive” professional experience. He conducted no
formal tests or reviewed any empirical data regarding the functionality, technological
availability, economic feasibility, and consumer marketability of the corded window blind design
as compared to alterative designs. 5 This is not to say that Rule 702 and Daubert mandate handson testing in every instance, but Statler’s methodology is not grounded in the scientific method
or susceptible to testing. Nor can Plaintiff cite to any evidence that experts in the product design
5
In this way, Dewick v. Maytag Corp., 324 F. Supp.2d 894, 898 (N.D. Ill. 2004) (Shadur, J.), is
distinguishable. There, in addition to reviewing publicly available documents, the expert performed force
tests, made calculations using anthropometric data when arriving at his opinion that the product in
question was defectively designed. It should also be noted that Judge Shadur precluded the expert from
testifying about the availability of alternative designs and the adequacy of warning, because the expert
could not explain how he arrived at his conclusions and failed to perform any tests regarding the efficacy
of the warnings and did not prepare any alternative warnings. Id. at 900.
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and safety fields commonly arrive at such opinions in the absence of any testing and based solely
on the limited universe of information that Statler reviewed for this case.
“This type of
unsubstantiated testimony . . . provides no basis for relaxing the usual first-hand knowledge
requirement of the Federal Rules of Evidence on the ground that the expert’s opinion has a
reliable basis in knowledge and experience of his discipline.” Cummins, 93 F.3d at 369 (internal
quotations omitted). Statler’s opinions are particularly troubling because they actually lend
themselves to hands-on testing and empirical study “such that conclusions based only on
personal opinion and experience do not suffice.” Dhillon, 269 F.3d at 870. It is true that
“experts commonly extrapolate from existing data. But nothing in either Daubert or the Federal
Rules of Evidence requires a district court to admit opinion evidence which is connected to
existing data only by the ipse dixit of the expert.” Zenith Elects., 395 F.3d at 420 (internal
citation omitted).
C.
Statler’s Opinion as to Hunter Douglas’ Knowledge
For the reasons discussed above, Statler may not testify that the corded window blinds at
issue suffered from a design defect, that other alternative designs were reasonably available, and
that the design of warning labels on the blinds was inadequate. Statler also opines that Hunter
Douglas acted unreasonably and ignored its corporate responsibility by knowingly selling
defective window blinds with inadequate warning labels.
But because these opinions are
predicated upon Statler’s opinions as to the design of the blinds and labels, they are similarly
excluded. That said, Defendant offers yet another argument to exclude Statler’s opinion about
Hunter Douglas. According to Defendant, much of Statler’s statements as to Hunter Douglas’
actions are statements of law and, therefore, inappropriate for expert testimony. The Court
agrees that these opinions also are inadmissible.
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As a preliminary matter, the Court notes that even a casual reading of Statler’s expert
report reveals that it “reads less like an expert’s unbiased assessment and more like counsel’s
closing argument.” Hayes, 518 F. Supp. 2d at 901. In one of many illustrations, Statler remarks,
“How many youngsters must suffer entanglement deaths before a manufacturer of looped-cord
vertical blinds, or the industry association, acts forcefully to address or eliminate such an
insidious hazard?” Statler Report at 20. He continues, “There is no tragedy more jarring than
the sudden and needless death of a child. Hunter Douglas knew, over an extended period of
time, that a highly-vulnerable population namely, infants and toddlers, were almost always the
victims of these incidents.” Id. (emphasis in original). In yet another passage, Statler writes, “In
the context of a product known almost from the outset to be fraught with the foreseeable risks of
children being strangled to death, such conduct [by Hunter Douglas] belies due care.” Id. In
another, “Directly and foreseeably, a flawed, uncorrected vertical blind design by Hunter
Douglas . . . compromised safety. As a result, Max Padilla became one more victim of the
unresponsive actions and omissions of both Hunter Douglas and the [trade] Association.” Id. at
21. In the last four pages of his report, Statler states his opinion that Hunter Douglas “knew”
about the defective design and associated risks more than a half dozen times. This is not to say
that inflammatory language alone would render an expert’s opinions a priori inadmissible under
Rule 702, but it certainly highlights the importance of the trial judge’s role as the “gatekeeper”
under Daubert.
First, it is apparent that Statler’s conclusion as to Hunter Douglas’ “knowledge” is based
only upon his review of CPSC reports, many of which were issued after Statler had left the
agency, as well as his reading of the Hunter Douglas depositions in this case. The Court is not
persuaded based on the record that Statler is in a better position than the jury to assess Hunter
15
Douglas’ subjective intent. In fact, according to Statler himself, “even the most casual review of
the available in-depth investigations, and literature on the subject, would have revealed [Hunter
Douglas’] oversight.” Statler Report at 14. Given Statler’s scant analysis, allowing him to
testify as to Hunter Douglas’ intent would not “help the trier of fact to understand the evidence
or to determine a fact in issue,” Fed. R. Evid. 702(a), and “would be little more than telling the
jury what results to reach.” Steadfast Ins. Co. v. Auto Mktg. Network, Inc., No. 97-C-5696, 2004
WL 783356, at *6 (N.D. Ill. Jan. 28, 2004) (internal quotation omitted). See Isom v. Howmedica,
Inc., No. 00-C-5872, 2002 WL 1052030, at *2 (N.D. Ill. May 22, 2002) (excluding expert
opinion that defendant “consciously disregarded” and was “grossly indifferent” to risk of injury).
In addition to opining about Hunter Douglas’ subjective knowledge, Plaintiff also offers
Statler to testify that Hunter Douglas acted with “an absence of reasonable or due care” and
showed a “reckless disregard for child safety.” Statler Report at 19-20, 22. In short, Plaintiff
would have Statler testify, “[H]ad Hunter Douglas, as a leading producer of vertical window
blinds – literally, a household name – conducted its affairs in a manner more consistent with due
care to addressing what it knew to be the danger of loop-corded window blinds of any kind, it is
decidedly more likely than not that 3-year old Max Padilla would not have died.” Id. at 24
(emphasis in original). The reason for this opinion is straightforward – Plaintiff is suing Hunter
Douglas under a negligence product liability theory.
Under Illinois law, “a product liability action asserting a claim based on negligence, such
as negligence design, is based upon fundamental concepts of common law negligence.”
Jablonski v. Ford Motor Co., 955 N.E.2d 1138, 1154 (Ill. 2011). “As in any negligence action, a
plaintiff must establish the existence of a duty, a breach of that duty, an injury that was
proximately caused by that breach, and damages.” Id. In the context of product cases, Plaintiff
16
must also demonstrate that “either (1) the defendant deviated from the standard of care that other
manufacturers in the industry followed at the time the product was designed, or (2) that the
defendant knew or should have known, in the exercise of ordinary care, that the product was
unreasonably dangerous and defendant failed to warn of its dangerous propensity.” Blue v.
Envtl. Eng’g, Inc., 828 N.E.2d 1128, 1141 (Ill. 2005) (emphasis added).
Although Rule 704(a) has eliminated the prohibition barring expert opinions on “ultimate
issues,” the Court “must nonetheless analyze whether an ‘expert’ opinion . . . would assist the
jury and if so, whether its probative value is outweighed by its danger of unfair prejudice.”
Dahlin, 2002 WL 31834881, at *3 (citing Fed. R. Evid., Advisory Committee Notes). In Isom,
the district court precluded an expert from testifying that the defendant “conscious disregarded”
and was “grossly indifferent” to the risk of injury and that the product at issue was “unreasonably
dangerous,” because the expert was not “any more qualified than an ordinary juror to draw these
inferences.” Isom, 2002 WL 1052030, at *2. Similarly, in Steadfast Insurance, the district court
held that an expert could not testify that a defendant had acted in “bad faith,” “with improper
motive,” or with “ill will,” for the reason that the “experts are in no better position than the jury
to assess [the defendant’s] subjective intent.” Steadfast Ins., 2004 WL 783356, at *6. See also
Dahlin, 2002 WL 31834881, at *5 (prohibiting expert from testifying, inter alia, that defendant’s
conduct proximately caused plaintiff’s injury). Here, in support of Plaintiff’s claims, Statler
intends to testify that Hunter Douglas acted with “an absence of reasonable or due care” or
showed a “reckless disregard for child safety.” As in Isom and Steadfast, however, Statler is in
no better position than the jury to arrive at this conclusion after consideration of all relevant
facts.
17
For the reasons stated herein, the Court grants Defendant’s motion to exclude Statler’s
expert testimony in its entirety.
II.
Robert Wright
Plaintiff also offers Robert Wright as an expert witness. Wright purports to be an expert
in the field of “Force Analysis and Dynamics,” which includes accident reconstruction, product
design and product safety. Def. Wright Br., Ex. A (“Wright Report”) at 1. According to Wright,
“[a]n individual who has the expertise in Force Analysis has the ability to analyze various
objects and determine what will happen to those objects if forces are applied and what motions
(if any) will occur as a result of those forces.” Id.; Def. Wright Br., Ex. B (“Wright Dep.”) 48:712.
Here, Plaintiff offers Wright to provide two primary opinions. First, Wright intends to give
his opinion as to the events that led to Max’s death on April 22, 2008, based upon an accident
reconstruction analysis. Id. at 4-5. Second, Wright intends to testify that the window blinds
were “defective and unreasonably dangerous and its defect caused and/or contributed
significantly to the accident that resulted in the death of Maximillian Padilla.” Id. at 7.
Defendant requests that Wright’s testimony be barred altogether on the grounds that: (1)
Wright is not qualified to testify as an expert on window blind design and safety; and (2)
Wright’s opinion regarding the design of the window blinds, as well as his reconstruction of the
accident, are both unreliable. For the following reasons, the Court grants Hunter Douglas’
motion in part and denies it in part. Wright is barred from testifying that the window blind at
issue was defectively designed; however, he may testify how the mechanisms used in corded and
non-corded window blinds to open and close the blinds operate.
regarding the results of his accident reconstruction analysis.
18
Wright may also testify
A.
Wright’s Qualifications
Hunter Douglas contends that Wright is unqualified to testify as an expert on the
adequacy of the design of Defendant’s window blinds.
It does not contest Wright’s
qualifications in the area of accident reconstruction. Based upon the record, the Court concludes
that Wright is not qualified to testify as to whether the corded window blind was defectively
designed. Wright’s skill and education, however, render him sufficiently qualified to testify as to
the mechanical features of Defendant’s looped cord and wand-operated window blinds.
First, it is clear that Wright possesses the necessary education, skill, and experience to
offer his opinion on how the different types of blinds operate mechanically. Wright has a
bachelor’s degree in Mathematics with a minor in Physics and Chemistry from Butler University.
He also earned a Master of Science degree and a Ph.D. from Ohio State University in a joint
program involving mathematics, science and engineering. See Wright Aff. at 1. Additionally,
Wright has served as a faculty member at the Ohio State University, where he taught a variety of
courses in the areas of math, science, and engineering and has published a number of scientific
and technical papers for technical societies and textbooks. See id. For the purposes of this case,
he reviewed the design schematics of the window blinds as well as the blinds themselves to
determine how corded and non-corded blinds operate. Wright Dep. 114:7-14. Accordingly, to
the extent that Wright will be offered to testify regarding these limited issues, as a trained
engineer and physicist, he is qualified to do so.
Despite Wright’s technical qualifications, however, Wright does not have any specialized
experience, education, or training relating to product design and safety, in general, or window
blind design in particular. For example, Wright has never taken any formal courses in product
safety. Wright Dep. 120:17-121:4. Nor has he taught any classes focusing on product design.
19
Id. 80:8-20. Wright has not designed any products, except for model trains, off-road vehicles
and combustible engines. Id. 80:21-81:9. And his consulting experience consists primarily of
accident reconstruction analysis, with less than 10 percent of assignments dealing with
household products. Id. 120:17-121:4.
For his part, Wright testified that the field of “force analysis and dynamics” includes
product design “because many products have forces that have to react within the product to make
them work.” Id. 119:23-120:6. Under this rationale, however, the design of every product,
whether an automobile, a computer, or an airplane, would come within Wright’s expertise.
Without more, Wright’s generalized experience in physics and engineering are insufficient to
provide him with the specialized knowledge necessary to testify that the Hunter Douglas window
blind was defectively designed. See Martinez v. Sakurai Graphic Sys. Corp., No. 04 C 1274,
2007 WL 2570362, at *2 (N.D. Ill. Aug. 30, 2007) (“Generalized knowledge of a particular
subject will not necessarily enable an expert to testify as to a specific subset of the general field
of the expert's knowledge.”) (citing O'Conner v. Commonwealth Edison Co., 807 F. Supp. 1376,
1390 (C.D. Ill. 1992)). Wright also had a vague recollection of working on one or two cases
involving window blinds, but admitted during his deposition that he was “guessing” and was
“not sure about” those matters. Id. 63:13-24. In sum, Plaintiff has not demonstrated that Wright
possesses superior knowledge, skill, experience, or education in the fields of window blinds or
household product design and safety. Wright is thus barred from testifying as to whether
Defendant’s looped cord window blinds were defectively designed.
At the same time, however, the Court finds that Wright’s technical expertise and
education render him qualified to present a portion of his testimony to the finder of fact.
Specifically, Wright can aid the jury in understanding how the looped cord window blinds
20
operate differently than the wand-operated blinds, and how the physical properties of the two
window blind systems differ.
B.
Reliability of Wright’s Design Defect Opinions
In addition to challenging Wright’s qualifications, Defendant argues that Wright should
not be allowed to offer his opinion on whether its window blinds were defectively designed
because the methodology he employed is unreliable. The Court agrees and bars Wright from
offering his design defect opinions on this independent basis.
In determining whether an expert’s testimony is reliable, Rule 702 requires that the
district court judge conclude that the testimony “is based on a correct application of a reliable
methodology and that the expert considered sufficient data to employ the methodology.”
Stollings v. Ryobi Tech., Inc., 725 F.3d 753, 766 (7th Cir. 2013).
Furthermore, as noted
previously, in making this determination, the Court should consider “(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 (quoting Dhillon, 269
F.3d at 869). Here, Wright seeks to testify that Defendant’s looped cord window blinds were
defectively designed because, at the time the blinds were sold, Defendant had already created
alternative, wand-operated window blinds that Wright believes are safer.
As a result, he
concludes that Hunter Douglas should have sold only the wand-operated blinds and taken the
corded blinds off the market completely. However, the methodology that Wright utilizes in
reaching his conclusions does not pass the reliability test under Rule 702 and Daubert. For this
additional reason, Wright is barred from testifying as to whether Defendant’s looped cord
window blinds suffer from a design defect.
21
As mentioned, “‘[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.) Furthermore, experts seeking to offer their opinion in
alternative design cases must also consider: “‘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.’” See
Dhillon, 269 F.3d at 870 (quoting Cummins, 93 F.3d at 369).
Here, Wright admits that he did not rely on or refer to any studies, scientific literature,
learned treatises, or engineering references in forming his opinions. See Wright Dep. 195:8-14;
205:17-22; 207:1-12. Nor did he review any industry standards related to the window blinds
industry. Id. 208:9-17. Wright also acknowledged that his opinions regarding Defendant’s
looped cord window blinds have not been subjected to peer review or accepted within the
engineering or scientific community. Id. 206:15-25. Perhaps more significantly, Wright failed
to conduct any of the specific analyses outlined in Dhillon. As Defendant points out, Wright has
failed to test whether the wand-operated window blinds could function properly on tall windows,
nor has he assessed whether wand-operated blinds could sufficiently work in different settings on
a variety of window shapes. See id. 138:16-139:1; 156:2-14. In addition, Wright did not
conduct any tests to measure whether consumers would have a more difficult time operating the
wanded blinds as opposed to the loop cord blinds. Id. 139:24-140:6. Wright also failed to
consider how the consumer public would respond to Defendant only offering the wand window
22
blinds, and what the consumers would be willing to pay for such window blinds. Id. 149:15-24;
206:8-14. In short, Wright admits that he has not conducted any studies relating to the wandoperated blinds’ “practical hands-on functionality . . . marketing . . . how people use them, how
they select them . . . [and] human factor studies.” Id. 205:5-16. Finally, during the August 20
hearing, he stated that he had not reviewed any information comparing the costs of corded blinds
with alternatives and had not conducted any risk assessment analysis comparing the different
products.
In his opposition to the motion, Plaintiff primarily relies on his belief that Dhillon is
inapplicable in this case. According to Plaintiff, Wright’s testimony is distinguishable from the
testimony offered in Dhillon because Wright “is not proffering an alternative design but rather
opinion that a wanded vertical blind is safer than a corded vertical blind.” Pl. Wright Resp. at 9.
Plaintiff adds that Wright need not consider such factors as marketability or consumer preference
because wanded blinds have been available in the marketplace as an alternative since 1995. Id.
Plaintiff’s argument might have legs if Wright were to conclude that Hunter Douglas should be
offering wand-operated blinds in addition to corded blinds. But Wright intends to testify that
Hunter Douglas should be offering wand-operated blinds in place of corded blinds. That is the
very definition of an alternative design theory, and Wright did not perform the evaluations that
he himself concedes must be done in an alternative design case.
Q:
Is there ever a situation in which a manufacturer could make
available two different options on one of its products, one of which
was safer in some situations, one of which was more useful to
more people and safer in other situations, where it would be
justifiable for . . . the manufacturer to offer both . . . ?
A:
I understand the question, and we would have to examine each
product and each situation for me to make a statement one side or
the other.
23
Q:
You would have to look at how the product was used, who used it,
what type of configurations it could be used in, things like that,
correct?
A:
I would agree with that, yes.
Q:
You haven’t done that here, have you?
A:
I’ve looked at – in a residential situation, the answer is that a wand
in my opinion is the way to go.
Q:
I understand your opinion, but you’ve made no study in this case,
have you?
A:
I have not done a study in that case.
Q:
In this case.
A:
Right, in that manner of your question, I have not done a study.
Wright Dep. 171:14-172:18.
Based upon these factors, Plaintiff has failed to demonstrate that the methodology
employed by Wright in arriving at his conclusions that the corded window blinds were
defectively designed and that Hunter Douglas should only have sold wand-operated window
blinds meets the reliability requirement of Rule 702 and Daubert. Accordingly, the Court bars
him from testifying as to these matters.
C.
The Reliability of Wright’s Accident Reconstruction Opinion
Lastly, Defendant argues Wright should be prevented from offering his opinion on how
Max’s death occurred because Wright’s accident reconstruction analysis is also unreliable under
Daubert. Specifically, Defendant alleges that Wright’s accident reconstruction is based on
“unsupported speculation and conjecture.” See Def. Wright Br. at 14. On this point the Court
disagrees.
24
Defendant contends that there are no factual bases that support Wright’s accident
reconstruction, and that he has not sufficiently eliminated other possible scenarios. See id. at 15.
Plaintiff, however, correctly retorts that Wright relied on several pieces of data while
reconstructing Max’s accident. For example, Wright reviewed the deposition testimony of a
number of witnesses in this case, including Jose and Ruth Padilla, the report of the incident
prepared by the local police department, and a number of photographs taken immediately after
the time of the incident. Wright Report at 3. He also conducted a personal inspection of the site
and interviewed the Padillas. Id. Additionally, during the Daubert hearing, Wright provided a
detailed account of his physical inspection of the room and its contents, as well as the myriad of
measurements that he took of the room. He also discussed how he used the data and his
extensive experience in accident reconstruction, a field in which Defendant does not dispute
Wright’s qualifications, to recreate what he concludes to have been the most plausible scenario
that led to Max’s death. Based upon the record, the Court finds that his accident reconstruction
methodology is sufficiently reliable to be offered at trial. Accordingly, the Court denies Hunter
Douglas’ motion to preclude Wright’s accident reconstruction testimony.
III.
Joseph Sala
Joseph Sala is a member of the Human Factors Practice group at the consulting firm,
Exponent Failure Analysis Associates. Pl. Sala Br., Ex. 1 (“Sala Report”) at 1. As a Senior
Managing Scientist at Exponent, Sala studies “how the capabilities and limitation of people
interact with the products, equipment, and systems in their environment, and how this interaction
affects safety.” Id.
In this case, Defendant has asked Sala to analyze the design and safety of
corded and wand-operated window blinds from a human factors perspective. In the end, Sala
offers four opinions in this case: (1) Defendant’s response to safety concerns over looped
25
window blind cord in the mid-1990’s was reasonable in light of the information available at that
time; (2) it was reasonable for Defendant to continue offering window blinds with looped cords
as an option because, in certain environments, such blinds are more suitable than their wandoperated counterparts; (3) additional and/or alternative warning labels on the subject window
blinds would not have caused the blinds’ original purchasers to either not purchase the blinds in
the first place or to use them differently; and (4) based on Mr. and Mrs. Padilla’s prior behavior
regarding child safety, there is no scientific reason to believe that additional or alternative
warning labels would have altered their behavior and prevented the accident. Id. at 14.
In his motion to bar Sala’s testimony, Plaintiff argues that Sala’s testimony is
inadmissible under Daubert because his opinions will not assist the trier of fact, lack sufficient
facts and data, and are not the product of reliable research methods or the scientific method. As
discussed below, the Court bars Sala from testifying as to the first opinion; however, the Court
finds that Sala’s qualifications and methodologies with respect to the remaining opinions are
sufficient to satisfy the requirements of Rule 702 and Daubert.
A.
Sala’s Opinion Regarding Defendant’s Historical Response
In its opposition to Plaintiff’s motion, Defendant states that, “[i]f the Court grants Hunter
Douglas’s motion to exclude the testimony of Mr. Statler and Dr. Wright on [whether Hunter
Douglas’s historical response to the risks of corded window blinds was reasonable], then Dr.
Sala’s testimony will not be necessary on this subject.” Def. Sala Resp. at 7. Because the Court
has barred Statler and Wright from testifying as to this issue, the Court deems the first opinion
offered by Sala as withdrawn by Defendant.
26
B.
Sala’s Opinion Regarding Continued Sales of Corded Alternative
In his second opinion, Sala concludes that Defendant was reasonable in continuing to
offer consumers the option of looped cord-operated window blinds even after it became aware
that such blinds pose a risk of strangulation. See Sala Report at 14. This is so, according to Sala,
because the “functionality [of window blinds] would be limited or eliminated for a portion of the
intended user population due to human factors issues related to people’s capabilities and
limitations and the expected use environment for the product if the [wand] were the only control
mechanism available.” Id. Plaintiff argues that Sala is not qualified to arrive at this opinion and
that, to the extent that he is qualified, his opinion is not the product of reliable research methods,
is based upon insufficient facts and data, and will not aid the jury.
These arguments are
unpersuasive.
As for Sala’s qualifications, the scientific discipline of “human factors” studies “the
limitations and capabilities of people as they use products, systems and equipment in their
environments.” Def. Resp., Sala Aff. ¶ 4. According to Sala, the field of human factors “has
fundamental underpinnings in the areas of psychology . . . [and] considers the interaction
between a person, a product, and a specific environment and how this interaction between a
person, a product, and a specific environment and how this interaction is influenced by a
human’s abilities, limitations, perceptions, knowledge, and pattern behaviors.” 6 Id.
Human
factors differs from product engineering because “a design engineer might evaluate operating
mechanisms by considering how the parts of the device are composed, interact with one another,
6
A number of major universities have Human Factor departments and programs and a general
description of the field can be found at their websites.
See, e.g., University of Iowa
(http://www.uidaho.edu/class/psychcomm/humanfactors);
North
Carolina
State
University
(http://psychology.chass.ncsu.edu/psg/);
University
of
Buffalo
(http://www.ise.buffalo.edu/
graduate/phdhf). Such programs may apply for accreditation from the Human Factors and Ergonomic
Society (https://www.hfes.org//Web/Default.aspx).
27
and allow for a product to function in a certain way.” Id. ¶ 6. In contrast, a human factors expert
“investigates how a person’s perceptions, information processing, and physical capabilities and
limitations affect the way users interact with window coverings.” Id.
Plaintiff does not claim that “human factors” is not a legitimate field of scientific inquiry.
Nor does Plaintiff challenge Sala’s qualifications as an expert in the area of human factors. 7
Instead, Plaintiff argues that Sala should be not permitted to testify as to whether it was
reasonable for Hunter Douglas to sell corded window blinds along with wand-operated window
blinds because Sala “lacks expertise in designing, marketing, or manufacturing window blinds.”
Pl. Sala Br. at 6. This argument may have some merit if Sala’s opinion were directed at the
engineering or design of the window blinds, but this is not the case. As Sala testified during the
Daubert hearing, his opinion is that it was reasonable for Defendant to offer both choices to its
customers from the human factors perspective. 8
Accordingly, the Court finds that Sala is
qualified to offer his second opinion at trial.
7
Sala received a bachelor’s degree in Psychology from Rutgers University and a master’s degree
as well as a Ph.D. in Psychology and Brain Sciences from John’s Hopkins University. In addition, Sala
has published numerous articles in the field of psychology and cognitive neurosciences in a variety of
scientific journals and has consulted on a number of matters involving human factors methodologies.
Finally, Sala has served as a peer reviewer for scientific journals in the areas of neurosciences and human
factors and is a member of the Society for Neurosciences, the Human Factors and Ergonomics Society,
and the Association for Psychological Science. See Pl. Sala Br., Sala’s Curriculum Vitae.
8
Sala’s use of the word “reasonable” in this context is unfortunate because it has the potential to
create jury confusion. As noted above, to prevail at trial, Plaintiff must show that Defendant’s product
created an unreasonable risk and that Defendant failed to exercise ordinary care. During the Daubert
hearing, Defendant’s counsel acknowledged that Sala was offering his opinion based upon his human
factors analysis. Accordingly, to alleviate the risks of jury confusion, Sala should avoid using the term
“reasonable” or “unreasonable” when providing his second opinion at trial. Instead, he can testify that,
based upon his human factors analysis, Defendant’s decision to offer the corded window blinds along
with the wand-operated blinds “made sense” or “was justified” (or other such comparable terminology).
28
Next, Plaintiff contends that Sala’s opinion was not the product of reliable research
methods. 9 Plaintiff’s sole basis for this argument is Sala’s consideration of a strength test
analysis conducted in the United Kingdom. See Pl. Sala Br. at 11. This argument is not welltaken. As Sala testified during the Daubert hearing and his deposition, in addition to the UK
study, Sala considered numerous other scientific articles that analyzed the relative mobility,
dexterity, and strength of populations of varying age, as well as disabilities, to determine whether
such populations would be able to operate wand-operated window blinds. Pl. Sala Br., Ex. 2
(“Sala Dep.”) 81:1-82:22; 83:5-18; 84:4-22; 85:8-20. In conjunction with this data, Sala also
evaluated the manner in which vertical blinds are typically used by inspecting blinds at retail
stores, reviewing sales material related to vertical blinds on the internet, and discussing the
market for vertical blinds with a Hunter Douglas representative. See id. 13:5-14:2; 148:1-10;
149:5-19 152:10-24.
Nevertheless, Plaintiff also argues that Sala’s second opinion is unreliable because it is
based upon insufficient data. According to Plaintiff, Sala’s admission that he did not test the
precise amount of strength needed to operate different types of vertical window blinds or
examine the specific blinds at issue dooms his analysis. See Pl. Sala Br. at 7.
In response, Sala notes that Plaintiff’s characterization is too simplistic because “each
installation and use environment would lead to a unique combination of factors that would affect
the amount and application of force required to operate the window coverings.” Sala Aff. ¶ 8.
He continues, “[e]valuating the usability of this product for portions of the population relies on
more than simply an understanding of whether or not the user is capable of producing a requisite
force. Specifically, questions as to whether a product is usable by the range of intended user
9
Plaintiff, however, does not challenge the second opinion on the basis that Sala failed to apply
scientific methods and principles in performing his analysis. See Pl. Sala Br. at 11-15.
29
population must consider how the operation might contribute to or be affected by fatigue, how it
might be altered by or lead to compensatory actions and how it might lead to increased
difficulty.” Id. The Court finds Sala’s explanation persuasive. In any event, Plaintiff does not
challenge the methodology used by Sala to form his second opinion, and whether an expert
considered all of the relevant factors goes to the weight to be afforded the expert’s opinion, not
its admissibility. See Daubert, 509 U.S. at 596; Lees v. Carthage Coll., 714 F.3d 516, 526 (7th
Cir. 2013); Smith v. Ford Motor Co., 215 F.3d 713, 719 (7th Cir. 2000); Cooper v. Carl A.
Nelson & Co., 211 F.3d 1008, 1021 (7th Cir. 2000).
Plaintiff’s final objection is that this opinion would not aid the jury in understanding the
evidence in this case because “the conclusion – that older people or people with disability may
have difficulty operating corded systems – is within the common sense of the jury.” Pl. Sala Br.
at 6-7. As noted above, an 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. Furthermore, “[e]xpert
testimony as to legal conclusions that will determine the outcome of the case is inadmissible.”
Good Shepard Manor Found., Inc. v. City of Momence, 323 F.3d 557, 564 (7th Cir. 2003).
Elaborating on its argument, Plaintiff states that “[i]t does not take an expert to explain to the
jury that as a person ages, his or her strength and dexterity decreases because this is part of
common human experience.” Pl. Sala Br. at 7. But Sala does not merely seek to testify as to
how the strength and dexterity of human beings vary with age and disability. Rather, Sala’s
opinion relies on his human factors expertise to explain how certain individuals and
environments may make looped cord window blinds preferable to other types of blinds. As Sala
writes in his report, “[j]ust as a single style of window covering may not be appropriate for all
users, the same is true for the mechanism used to control and adjust the blind. For instance, the
30
Wand places additional demands on a user that may present difficulties for specific populations
or in specific environments that the nylon pull cord and beaded chain option does not.” Sala
Report at 9. While the jury may understand the human aging process generally, the Court
nonetheless believes that Sala’s analysis will aid the jury in understanding how people choose to
purchase certain products, and why looped cord blinds may be suitable for specific environments
and people.
C.
Sala’s Opinion As to Roberts and Davis
In addition to the above two opinions, Sala also reviewed the depositions of Mindy
Roberts, the prior owner of the Padilla’s home and original purchaser of the window blinds, and
her mother, Brenda Davis, who assisted Roberts in purchasing the blinds. From this, as well as
other factors, Sala concludes that “[t]here is no scientific reason to believe that additional or
alternative warning or safety information would have altered their behavior with respect to the
selection, purchase, installation, and use of the [blinds].” Sala Report at 14.
Plaintiff objects to the admissibility of this opinion, claiming that Sala did not apply
scientific methods and principles reliably in reaching his conclusion. See Pl. Sala Br. at 13-15.
In reality, Plaintiff’s argument is simply that Sala’s third opinion is not consistent (at least, in
Plaintiff’s eyes) with the testimony offered by Roberts and Davis in this case. Be that as it may,
based upon Sala’s report and his deposition testimony, it is clear that Sala considered the
depositions of these women, as well as a number of other depositions taken in this case. See Sala
Dep. 10:4-22. Furthermore, Sala considered a number of scientific articles in the field of
cognitive psychology that discuss human behavior in response to product warnings. Id. 88:1989:21.
31
Again, Plaintiff does not challenge Sala methodology, but only his conclusions. Such
arguments are more appropriately made to the jury at trial, rather than in a Daubert motion to the
Court. See Cummins, 93 F.3d at 368 (“the [Daubert] focus must be solely on principles and
methodology, not on the conclusions they generate”).
D.
Sala’s Opinion as to The Padillas
In his fourth and final opinion, Sala states that the “[t]here is no scientific reason to
believe that additional or alternative warning or safety information provided with the product
would have altered [Mr. and Mrs. Padilla’s] behavior and averted this incident.” Sala Report at
14. Sala believes this, because the “Padillas did not demonstrate safety information seeking
behaviors with respect to child safety in general and that related specifically to window
coverings, and displayed limited response to acknowledged and obvious safety concerns.” Id.
Plaintiff asks the Court to strike this opinion, arguing that Sala failed to apply scientific
methods and principles in this analysis. Pl. Sala Br. at 11-13. But again, Plaintiff does not
quarrel with Sala’s qualifications to offer this opinion.
Nor does Plaintiff contest his
methodology. Rather, Plaintiff’s objection is based on Sala’s purported failure to consider all of
the evidence that Plaintiff deems relevant. See Pl. Sala Reply at 4 (noting that the “contention
that Dr. Sala’s conclusion is unreliable is not premised on the reliability of Dr. Sala’s academic
sources; it is premised on the insufficient facts provided to Dr. Sala.”).
Here, based upon a review of the deposition testimony, Sala believes that the Padillas
have shown a tendency to ignore safety hazards of which they were aware. As an example, Sala
points to the risk created by a television that was placed on a dresser in Max’s room. According
to Sala, although Mr. Padilla recognized the risk and “was always taking care of it,” see J.
Padilla Dep. 86-87, there was no evidence on the record showing that Mr. or Mrs. Padilla had
32
actually fixed the situation by either removing the TV or securing it to a wall. Sala at Report 13.
From this and other data, Sala concludes that there is no reason to believe that alternative or
additional warning labels on the blinds would have altered the Padilla’s behavior or prevented
Max’s death. See id. As Sala testified during the Daubert hearing, the scientific literature
indicates that such behavior is not uncommon among the general population.
Plaintiff contends that this analysis is unreliable because: (1) Sala incorrectly assumes
that the television was hanging over Max’s head when, in fact, it was in the corner; (2) there is
no evidence as to the size of the television; and (3) it is unclear how long it had been in Max’s
room. Pl. Sala Br. at 12. But, again, Plaintiff fails to demonstrate how these three factors
diminish the reliability of Sala’s methodology. The fact is Sala did review the deposition
testimony of the Padillas. For example, Sala notes that: Mr. Padilla did not read parenting
magazines regularly, see J. Padilla Dep. 89-90, Mrs. Padilla failed to look up safety information
prior to becoming pregnant, see R. Padilla Dep. 71, and neither Mr. nor Mrs. Padilla ever spoke
to their pediatrician about child safety issues, see id. 70-71. To the extent that Sala relied on
certain information from the depositions while not considering others, this goes to weight of his
testimony and not its admissibility. See Loeffel Steel Prods., Inc. v. Delta Brands, Inc., 372 F.
Supp. 2d 1104, 1119-20 (N.D. Ill. 2005) (“As a general rule, questions relating to the bases and
sources of an expert's opinion affect only the weight to be assigned that opinion rather than its
admissibility”) (citation omitted).
Furthermore, the Court notes that, even if the television had been positioned in the corner
of the room, as opposed to directly above Max, this fact alone does not render Sala’s conclusion
unreliable. Indeed, Mr. Padilla himself testified that he still viewed it as a safety concern and
was worried that it would fall on Max. See J. Padilla Dep. 33:16-19; 85:7-10. Undeterred,
33
Plaintiff also argues that even if the television supports Sala’s opinion, the fact that Mr. Padilla
promptly removed all the window blinds from his house after Max’s accident “shows the
behavior of a concerned and responsible parent who very much cares about the safety of his
family.” Pl. Sala Br. at 13. But whether the Padilla removed the window blinds because they
were concerned it would cause more harm (as Plaintiff argues) or because they were mourning
the horrendous loss of their son (as Defendant suggests) is an issue for the jury to decide. It does
not cause this opinion to fail under Rule 702 and Daubert.
As an additional matter, the Court notes that Plaintiff makes no mention of the other facts
and sources that Sala employs in forming his opinion as to the Padillas.
For instance, in his
report, Sala refers to several professional studies related to humans’ interaction with warning
labels. Sala Report at 12-13. Among them, Sala cites to a number of scientific publications that
describe the factors that are relevant to assessing the efficacy of warning labels. Sala Report at
12, 17-18. These sources, which have been subject to peer review and are generally accepted in
the professional community, are the types of sources upon which experts in the field commonly
rely. See also Sala Aff. ¶ 10 (citing scientific literature). For these reasons, the Court denies
Plaintiff’s motion to exclude Sala’s opinion regarding the Padillas.
IV.
Rose Ray
Rose Ray is a Principal Scientist in the Statistics and Data Sciences department at
Exponent. Pl.’s Ray Br., Ex. A (“Ray Report”) at 2. Ray has a bachelor’s degree in Psychology
and a Ph.D. in Statistics from the University of California, Berkeley. Prior to her current
employment, which began in 1988, Ray taught statistics courses at Berkeley, Northwestern
University, and the University of California at San Francisco. Id. at 1. Ray’s experience focuses
34
on “data analysis and the application of statistical epidemiological methods to business
environments.” Id. at 32.
Here, Defendant seeks to have Ray testify as to the relative risk of injury and death to
children associated with window blinds compared to other household products and appliances.
See Def. Ray Resp. at 1. Specifically, Ray will testify: (1) the risk of fatality associated with
window shades, venetian blinds, and indoor shutters for children ages 0 to 3 is similar to the risk
of fatality associated with other common household products; (2) the risk of hospitalized injury
associated with window shades, venetian blinds, and indoor shutters for children ages 0 to 3 is
similar to the risk of fatality associated with other common household products; and (3) the
overall rate of fatality to children ages 0 to 3 associated with window shades, venetian blinds,
and indoor shutters has been decreasing in the period 1990-2007. Ray Report at 8.
Plaintiff moves to exclude all three opinions. As for the first and second opinions, which
compare the risks to children from window blinds and other household products, Plaintiff
contends that Ray’s opinions are unreliable and will not assist the jury because the comparators
are not sufficiently similar. With respect to the third opinion, Plaintiff argues that it “adds
absolutely nothing to assist he jury in understanding the issues in this case.” Pl. Ray Br. at 11.
For the reasons below, the Court grants Plaintiff’s motion as to the first and second opinions, but
not as to the third.
A.
Ray’s Comparative Risk Analysis
First, Plaintiff argues that the Court should bar Ray’s first and second opinions under
Daubert because household items, such as buckets, chairs and coins, are not sufficiently similar
to window blinds to provide a meaningful comparison in this case. The Court agrees.
35
According to Defendant, Ray is offered “for the very limited purpose of comparing the
relative risk of a child being injured or killed in an accident involving a window blind cord, with
the risk of such an accident involving other common household products to which children are
routinely exposed.” Def. Ray Resp. at 2. Accordingly, Ray compares “the risk of hospitalized
injury or fatality to children ages 0 through 3 years” posed by window shades, venetian blinds, or
indoor shutters, to that posed by generally available household products, including doors,
windows, tables, sofas, and beds. See Ray Report at 3-4. In selecting the items, she “tried to
choose household items that were going to be available in essentially every household so that it
would be fair to assume that every child aged zero to 3 would have some exposure to that
household items.” Pl. Ray Br., Ex 2 (“Ray Dep.”) 125:17-21. “Other than that, that was pretty
much it.” Id. 126:4. After comparing the different products’ relative risks, Ray concludes that
the “risk of fatality or of non-fatal hospitalized injury associated with ‘Window Shades, Venetian
Blinds or Indoor Shutters’ as compared to the other products is similar in the three time periods
considered.” Ray Report at 5.
To satisfy Daubert’s reliability requirement when performing a comparative analysis of
this type, an expert must “select samples that are truly comparable. To put it another way, care
must be taken to be sure that the comparison is one between ‘apples and apples’ rather than one
between ‘apples and oranges.’” Loeffel Steel Prods., Inc. v. Delta Brands, Inc., 387 F. Supp. 2d
794, 812 (N.D. Ill. 2005) (quoting Donnelly v. R.I. Bd. of Governors for Higher Educ., 929 F.
Supp. 583, 591 (D.R.I. 1996)). Moreover, the expert bears the burden of establishing that the
different products being compared are sufficiently similar to one another. See Premium Plus
Partners, L.P. v. Davis, 653 F. Supp. 2d 855, 867-68 (N.D. Ill. 2005).
36
The Premium Plus Partners case is illustrative. There, the plaintiff’s expert sought to
compare “the price behavior of 30–Year Treasury Bonds around the time period of the
cancellation with the price behavior of other treasury instruments around the time of their
cancellation.” Id. at 863. The court concluded, however, that the expert had “failed to provide
an adequate explanation for his assertion that other instruments compared by him such as the 4–
Year Treasury Note and 7–Year Treasury Note are sufficiently similar to the 30–Year Treasury
instruments to offer a meaningful comparison.” Id. at 867-68. As such, the court granted the
defendant’s motion to strike the expert’s comparative analyses. See also State Farm Fire and
Cas. Co. v. Electrolux Home Prod., Inc.¸ No. 3:08-CV-436, 2013 WL 5770343 (N.D. Ind. Jun.
17, 2013) (finding comparative risk analysis did not comport with Daubert because expert
compared two different types of data regarding dryer fires).
Here, Defendant has not
demonstrated how pails, doors, windows, and other household products are sufficiently similar to
window blinds to offer a meaningful comparison.
In response, Defendant argues that Ray’s comparative analysis opinions should be
admitted because “the jury in this case will be asked to decide whether there was an
unreasonable danger in the design of this particular product: vertical window blinds that utilize a
cord to open and close them.” Def. Ray Resp. at 3. However, this argument is unavailing for
several reasons.
First, Ray acknowledges that her study considered the entire CPSC product category
“Window Shades, Venetian Blinds or Indoor Shutters.” Ray Report at 3. Ray did not review or
analyze the safety statistics specifically with respect to corded vertical blinds, such as those at
issue. Without the ability to disaggregate the statistics for the “Window Shades, Venetian Blinds
or Indoor Shutters” category, the statistics have little to no relevance to this case.
37
Furthermore, the lack of any analysis of the comparability of window coverings, on the
one hand, to other household products, such as buckets and pail, chairs, windows, sofas and
coins, on the other hand, is similarly fatal. Consider, by way of example, Ray’s comparison of
the window covering product category with water buckets and pails. Ray’s report notes that
between 1994 and 1995, a little less than 0.5 child deaths per 100,000 were attributable to
buckets and pails. Ray Report at 6. During that same period, there were approximately 0.25 to
0.30 child deaths per 100,000 attributable to window coverings. Id. at 7. At first glance, this
comparison has some superficial appeal; however, one must remember that, in the context of
Plaintiff’s negligent design claim, the jury must consider “a balancing of the risks inherent in the
product design with the utility or benefit derived from the product.” Jalonski, 955 N.E.2d at
1154 (emphasis added). Similarly, when considering Plaintiff’s strict liability design-defect
claim, the jury may consider, among other things, “the manufacturer’s ability to eliminate the
unsafe character of the product without impairing its usefulness or making it too expensive to
maintain its utility.” Id. Here, Defendant does not explain how a manufacturer of a bucket
would be able to eliminate its “unsafe character” without impairing its usefulness or the attendant
costs of eliminating such risks. Nor is there any study as to whether children have different
levels of access to water buckets and pails or the different ways in which children interact with
buckets and pails as compared to window blinds. 10 Without such comparative information, the
10
When asked whether window blinds had any similarities with household items, Ray testified:
Q: Of all the products that you chose here . . . do any of those products have any
similarities with a vertical blind with looped cords?
...
A: They’re similar in the sense that they’re common household products. They’re
similar in the sense that children can receive serious or fatal injuries associated
with these products.
Q: Any other similarities that you can think of?
38
numbers presented by Ray are, at best, irrelevant and, at worst, potentially misleading. Perhaps
it is not surprising then that Defendant has not cited to any court that has permitted similar
statistical testimony from an expert witness in a product liability case. Accordingly, the Court
bars Ray from offering her first and second opinions at trial.
B.
Decreasing Fatality Rate
Lastly, Plaintiff moves to exclude Ray’s third opinion that the fatality rates of young
children resulting from their interaction with window blinds has decreased over time. In its
brief, Plaintiff argues that Ray’s third opinion is inadmissible because it will not aid the jury, but
will instead confuse it.
See Pl. Ray Br. at 11-12.
Plaintiff does not challenge Ray’s
qualifications or her methodology, nor does Plaintiff contend that the information is irrelevant.11
Rather, the sole basis for Plaintiff’s objection is that Ray has failed to explain why the numbers
have declined. But Ray’s response is not surprising given that her expertise is in statistics, not
product safety. In any event, Plaintiff’s argument is insufficient to bar Ray’s third opinion under
Daubert, and Plaintiff’s motion is denied with respect to this opinion.
CONCLUSION
For the reasons set forth above, Defendant’s motion to exclude the testimony of Stuart M.
Statler is granted; Defendant’s motion to exclude the testimony of Robert R. Wright is granted in
part and denied in part; Plaintiff’s motion to exclude the testimony of Joseph B. Sala is granted
in part and denied in part; and Plaintiff’s motion to excluded the testimony of Rose M. Ray is
A: No.
Ray Dep. 127:12-128:7.
11
Plaintiff’s brief does include one conclusory sentence that Ray’s third opinion fails to meet the
standards of Rule 702 and Daubert, but the Court need not consider such undeveloped arguments. See
Lachman v. Ill. State Bd. of Educ., 852 F.2d 290, 291 n.1 (7th Cir. 1988) (holding that a party that fails
“to offer any substantive argument or case law citation in support of their assertion” waives its argument).
39
granted in part and denied in part.
IT IS SO ORDERED on this 6th day of February 2014.
________________________________
John Z. Lee
United States District Judge
40
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