Goesel et al v. Boley International et al

Filing 150

MEMORANDUM Opinion and Order Signed by the Honorable Milton I. Shadur on 10/24/2012:Mailed notice(srn, )

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
ANDREW GOESEL AND CHRISTINE )
GOESEL, individually and as next friend )
to COLE GOESEL, a minor,
)
)
Plaintiffs,
)
)
v.
)
)
BOLEY INTERNATIONAL (H.K.)
)
LTD.; BROADWAY TOYS
)
INDUSTRIES LTD.; FOSHAN
)
SHUNDE DISTRICT NA WEI
)
PLASTIC & HARDWARE CO., LTD.; )
and TARGET CORPORATION,
)
)
Defendants.
)

Case No. 09 C 4595

MEMORANDUM OPINION AND ORDER
This action seeks to recover damages sustained by then five year old Cole Goesel
("Cole") when a plastic toy sword that he was playing with -- part of a toy product known as the
"Boley Cosmic Robot" -- shattered and a piece of that sword pierced Cole's eye. After discovery
was closed, this Court approved and entered the jointly submitted final pretrial order ("FPTO")
on June 21, 2012, and the litigants adhered to the schedule provided there for the submission of
motions in limine by tendering a host of such motions -- 13 by plaintiffs (cited simply
"P. No. --") and 11 by defendants.
With each side having responded to the other side's motions, they are ripe for decision.
This opinion will deal with plaintiffs' motions, with defendants' motions to be addressed
hereafter in a separate opinion.

P. Nos. 1, 2 and 3 all relate to aspects of the proposed testimony of opinion witness1 Bert
Reiner ("Reiner"), whose CV recites:
I have been in the toy and juvenile product industries for 35 years, developing,
engineering and manufacturing toys and children's products. Since June 1988, I
have been president of Reiner Associates, Inc., a company primarily engaged in
Engineering and Quality Assurance consultation to these industries.
Here in summary are the aspects of Reiner's proposed testimony sought to be barred by plaintiffs'
motions:
1.

P. No. 1 objects to Reiner's opining on the type of plastic of which
the sword that injured Cole and the sample swords tested by
plaintiffs' opinion witness were manufactured.

2.

P. No. 2 seeks to bar Reiner's testimony as to the reasonable
foreseeability of Cole's conduct at the time of the occurrence.

3.

P. No. 3 seeks to preclude Reiner's proposed testimony criticizing
the manner in which plaintiffs' opinion witness conducted abuse
testing of those sample swords.

As to P. No. 1, plaintiffs have submitted evidence from a highly credentialed opinion
witness, Dr. Duane Priddy, who conducted a sophisticated chemical analysis that concluded the
sword that shattered was manufactured from a type of plastic known as "crystal" or "general
purpose" polystyrene. By contrast, nothing in Reiner's history in the toy industry gives him even
the slightest of credentials to speak to that issue, thus presenting the familiar situation in which a
proposed witness has credentials that would enable him or her to testify in other areas but not on

1

See the attached Appendix.
-2-

the subject under consideration (see, e.g., DePaepe v. Gen. Motors Corp., 141 F.3d 715, 720 (7th
Cir. 1998)).
Defendants' attempted response to P. No. 1 offers nothing substantive to support Reiner's
testimony on a subject in which he is totally lacking in qualifications. Hence P. No. 1 is granted.
As for P. No. 2, it is a long time since Reiner was five years old -- his CV reflects that he
graduated from Rensselaer Polytechnic Institute more than a half century ago. More seriously,
his Fed. R. Civ. P. ("Rule") 26(a)(2)(B) report said nothing at all on the issue of foreseeability, a
subject on which he later advanced an ipse dixit during his post-report deposition.2 In that
respect Reiner's background and experience are singularly deficient in any showing that would
entitle him to claim "scientific, technical, or other specialized knowledge [that] will help the trier
of fact to understand the evidence or to determine a fact in issue" (the language of Evid. R.
702(a)). Instead members of the lay jury will be able on their own to deal with the issue of
foreseeability. Indeed, Reiner's willingness to reach out gratuitously beyond his own field of
special knowhow appears to raise serious concerns as to his general credibility.3
P. No. 3 also relates to a subject beyond the scope of the Reiner written report: During
his deposition he said "that he also had 'questions' regarding the manner in which Plaintiffs'
expert, Timothy Pine, had conducted abuse testing of other, identical toy swords also sold by

2

This Court regularly urges counsel in cases before it to read and consider the first-rate
article by Gregory Joseph in the American Bar Association's Litigation magazine (Expert
Approaches, 28 No. 4 Litigation 20 (Summer 2002)) in which he points out the risk involved in
taking such post-report depositions. Without such a deposition, the opinion witness' testimony is
circumscribed by the content of the report, while a deposition poses the risk of opening up other
areas as well.
3

This Court is not, however, employing its "gatekeeper" role at this time to raise a
question as to Reiner's overall testimony as limited by the rulings in this opinion.
-3-

Defendants" (P. No. 3 at 2). But as P. No. 3, id. went on to state:
Mr. Reiner, however, admitted at the deposition that he had not formulated a
specific opinion on whether Mr. Pine's testing was consistent with the applicable
requirements for such testing set forth in ASTM F-963. Further, Defendants have
never supplemented Reiner's report to identify any definitive criticisms of
Mr. Pine's tests.
Once again the wisdom of Greg Joseph's caveat is evident. This Court takes seriously its
close of discovery orders, which it enters only when both sides have confirmed that they are
through with the process -- in other words, its issuance of an FPTO is indeed "final," absent some
extraordinary reason for changing the ground rules for trial that the FPTO establishes. In that
regard this Court will not credit or honor the hedge that Reiner attempts to insert at the end of the
"Conclusion" section of his written report:
Be advised that this report is based on information received to date; I reserve the
right to change or amend my opinion, after receipt of further information through
discovery.
In sum, P. No. 3, like P. Nos. 1 and 2, is granted.
P. No. 4 seeks to bar the testimony of ophthalmologist Dr. Michael Reynard as to the
causation of Cole's injuries. For that purpose plaintiffs' counsel refers to their motion, presented
on May 31, in which they "requested that they be granted additional time to disclose a rebuttal
expert to respond to Dr. Reynard's opinions as to the 'mechanism' or causation of Cole's injuries"
(P. No. 4 at 2). Defendants' counsel initially responded this way:
The Plaintiff misstates the representations made by counsel for Defendants
regarding the opinions of Dr. Reynard related to the causation of Cole Goesel's
injuries, including the opinions contained in the portion of Dr. Reynard's report
entitled "Mechanism of Injury."
That criticism was totally unwarranted, and the lawyer who wrote the response should

-4-

have known it. Here was the relevant part of the May 31 transcript:
THE COURT: But you are here now and I am going to be the one who decides it.
And if it jumped off the page at me, then why do we -- why do we have to go the
extra steps? It seems to me that a preliminary to even considering this motion is
to get an explanation of how it is that this person is -- feels he is qualified or, more
importantly, is qualified to render this kind of opinion.
MS. KUNZER4: Exactly. You know, I think he is conceded in his written report
and in his deposition that an accident reconstructionist would be needed to
comment on this issue. So I think it would be appropriate to just withdraw that
particular opinion as to causation because certainly he is not qualified. He is not
an accident reconstructionist. He is an ophthalmologist.
* * *
THE COURT: Well, counsel has just said that they are going to withdraw that.
Right?
MS. KUNZER: Just as to causation. His opinion only as to causation, not any of
the other –
THE COURT: No, I understand that.
MS. KUNZER: -- opinions, right.
So with the issue having since been withdrawn by defense counsel (see n. 4), P. No. 4, like the
others discussed to this point, is also granted.
P. No. 5 seeks to bar the admission of, and any testimony relating to, a document
identified as Target Compliance & Production Services Quality Assurance Process Manual (the
"Manual," D. Ex. 26). On this motion the parties are like ships that pass in the night: In part
plaintiffs' counsel point out that defendants produced several different versions of the Manual,

4

Attorney Amy Kunzer represented defendants at the May 31 hearing, while another
lawyer -- David Gray -- signed onto defendants' original written response. That of course was no
excuse for defense counsel's having charged plaintiff's counsel with a misstatement of defense
counsel's representations. But when plaintiffs' counsel brought attorney Kunzer's statement to
attorney Gray's attention, he withdrew his written objection.
-5-

each bearing a date of creation, but the earliest of those versions is dated May 2008. That was
eight months after Cole sustained his injuries and ten months after the toy had been delivered to
defendant Target Corporation ("Target").
But defendants' response says not a word about that. Yet for the document and related
testimony to come into the case at all, there is no question that reliance must be shown, for which
purpose the Manual had to antedate Target's taking on the product (relatedly, see Evid. R. 407).
On the record before this Court, then, plaintiffs' counsel are right in challenging the
relevance of the Manual. For present purposes this Court has no need to consider plaintiffs' other
objections, on which the parties do butt heads. P. No. 5 is also granted.
P. No. 6 asks for a missing-evidence jury instruction because codefendant Target (which
sold the toy in question) did not produce its factory evaluation of Na Wei Plastic & Hardware
Co., Ltd. ("Nawei"), the Chinese plant where the toy was manufactured for codefendant Boley
International (H.K.) Ltd. ("Boley"). Target has a uniform and strict protocol that it follows
before it purchases any product for its "Kool Toyz" line of toys from any factory:
1.

It performs an investigation and evaluation of the factory.

2.

It maintains a copy of the report evaluation for each factory.

In this instance Target, in response to production requests that required it to produce any
evaluations of the Nawei factory, never produced any. As was the case with P. No. 4, defense
counsel's response is again guilty of stretching the truth -- here is what attorney Gray says at
page 2:
In fact, the evidence reveals that any evaluations, if performed, may not have been
saved or created in the first place.

-6-

But the excerpt from Target's Quality Manager Robert Stathopoulous's deposition that defense
counsel Gray quoted immediately following that statement includes this answer (emphasis
added):
There would have been a factory evaluation because they could not have produced
without it, but whether or not I have a hard copy report, I can't answer that right
now.5
That puts the lie to the attempted "if performed" hedge as well as to the suggestion that the
evaluations "may not have been . . . created in the first place."
What the issue comes down to is whether plaintiffs must show deliberate spoliation to be
entitled to the requested instruction. Defendants have cited two Seventh Circuit decisions that
suggest an affirmative answer to that question, while plaintiffs have proffered no authority that
would indicate otherwise. There is one unanswered factual issue that might call for a ruling in
plaintiffs' favor -- Stathopoulous testified that if the evaluation took place when Target had the
FAS-T system (field assessment tool) in force, the evaluation would still be within that database.
Because evidence on that score has not been tendered by the parties, P. No. 6 is denied.
P. No. 7 seeks to bar any testimony about insurance coverage maintained by Cole's
parents that provided payment toward his medical treatment. Defense counsel unsurprisingly
offers no response, given the universal caselaw supporting plaintiffs' position. Accordingly
P. No. 7 is granted.
P. No. 8 seeks leave for plaintiffs' counsel to ask leading questions during the direct
examination of two Target employees and of Boley's President. Again defense counsel offers no

5

Astonishingly, attorney Gray has placed the "but whether . . ." clause in boldface type
(perhaps in the hope that this Court might not read the language that preceded it)?
-7-

objection, and Evid. R. 611(c)(2) confirms plaintiffs' position. P. No. 8 is also granted.
P. No. 9 invokes Evid. R. 615 to call for exclusion from the courtroom of all witnesses
other than the retained opinion witnesses. Defense counsel agrees that such witness exclusion
should apply, but they would go further by excluding opinion witnesses as well.
Nothing tendered to this Court suggests that the presence of any of either side's opinion
witnesses is "essential to the presentation of the party's cause" (Evid. R. 615(3) -- and see United
States v. Olofson, 563 F.3d 652, 660 (7th Cir. 2009)). Hence P. No. 9 is granted as modified by
defendants' response -- although if an appropriate showing of necessity as to any opinion witness
is made during the next 21 days, a limited exception to this ruling may be entertained.
P. No. 10 seeks to bar any testimony or argument that Cole's actions or negligence
contributed to his injuries. That motion is supported not only by the Illinois "tender years
doctrine" that precludes a finding of contributory negligence on the part of a child less than seven
years old but also by the absence of any assertion of contributory fault by defendants. Again
unsurprisingly defendants have not responded, and P. No. 10 is granted.
P. No. 11 asks to bar admission of D. Exs. 19 - 25, which comprise testing reports
prepared by Bureau Veritas on the Cosmic Robot, all of those reports having been challenged by
plaintiffs' opinion witness Timothy Pine. Plaintiffs make clear that they do not seek to exclude
other testing reports by Bureau Veritas that reflect the testing done pursuant to Target's toy
testing protocol during the time frame that the Cosmic Robot that resulted in Cole's injuries was
manufactured -- a period from March through November 2007.
Instead the challenged test reports relate to (1) a modified version of the Cosmic Robot
that Boley sold to Target in the following year (2008) and (2) versions of the Cosmic Robot that
-8-

Boley sold to customers other than Target and that were tested according to protocols different
from Target's. Because that first category dealt with a Cosmic Robot whose design had been
changed, importantly including a change in the type of plastic from which the sword was made,
plaintiffs clearly have the better of that dispute. And because each customer other than Target
used its own protocol to be performed by Bureau Veritas, plaintiffs win on that issue as well. In
sum, P. No. 11 is granted.
P. No. 12 asks that one of Cole's parents be allowed to accompany him on the witness
stand when he testifies at trial. Coles's 10th birthday was on September 18, 2012. Once again
defendants have interposed no objection to the requests, so P. No. 12 is granted.
Finally, P. No. 13 seeks the exclusion of D. Ex. 27, a document entitled "Typical
Properties of BC's PS Resin." Here too defense counsel has interposed no objection, so P. No. 13
is granted too.
Conclusion
In summary, P. Nos. 1 (Dkt. 113), 2 (Dkt. 114), 3 (Dkt. 124), 4 (Dkt. 115), 5 (Dkt. 116),
7 (Dkt. 118), 8 (Dkt. 125), 9 as modified (Dkt. 119), 10 (Dkt. 120), 11 (Dkt. 121), 12 (Dkt. 122)
and 13 (Dkt. 123) are granted, while P No. 6 (Dkt. 117) is denied. As stated at the outset of this
opinion, this Court will address defendants' motions in limine in a separate opinion.

__________________________________________
Milton I. Shadur
Senior United States District Judge
Date: October 24, 2012

-9-

Appendix
This Court does not permit the label "expert witness" to be used in its trials, nor does that
label appear in its opinions. That stance is not a mere idiosyncracy, and this Appendix -attached to the memorandum opinion and order in this case -- explains why.
It fell to this Court's lot, as a member of the Advisory Committee on the Rules of
Evidence that had been reconstituted by then Chief Justice William Rehnquist after a two decade
hiatus, to chair the subcommittee responsible for the drafting of revised Fed. R. Evid.
("Evid. R.") 701, 702 and 703 and the accompanying Advisory Committee Notes ("Notes"). In
that capacity this Court, together with the Advisory Committee's brilliant reporter Professor Dan
Capra, wielded the laboring oar in the drafting of those Rules and Notes -- and in doing so we
made sure that the Note concluded by drawing upon and quoting from an article in F.R.D. by the
late District Judge Charles Richey that highlighted the anomaly of instructing a jury that it has
heard testimony from an "expert" but that its members (a lay jury) need not credit that
testimony -- a notion at odds with the normal understanding of the word "expert."
Why then did the Advisory Committee not change the language of the Rules and Notes to
eliminate the term "expert" from their lexicography entirely? Although the Advisory Committee
actively discussed that possibility, the ultimate consensus was that it could create confusion,
perhaps consternation, within the profession -- a sort of manifestation of the old saying that "old
habits die hard" -- and that what was most important was the major substantive revision of the
Rules and Notes rather than a change in vocabulary, so long as the lay jury was not exposed to
the risk identified by Judge Richey. It is noteworthy that both Civil Instruction 1.21 and
Criminal Instruction 3.07 of the Committee-generated pattern instructions for use in the Seventh
Circuit have eschewed any mention of the word "expert."

One added comment is in order as to the history of the Rules and Notes discussed here. It
is well known that the seminal decision in Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579
(1993) inspired the revision of Evid. R. 702 and its related companions, so that there is a
tendency to cite Daubert as having established the relevant criteria for the admissibility or
inadmissibility of opinion testimony. But our Advisory Committee wished to make the point that
all of the Daubert-identified factors are not essential to admissibility (for example, peer review
would not play a role where the opinion witness' testimony was based on that witness' practical
experience). Hence our draft of proposed Evid. R. 702 was framed in terms of Daubert not
setting the exclusive standards for admissibility.
As chance would have it, that draft had been approved by the umbrella Standing
Committee of the Judicial Conference to authorize its circulation for public comment at the time
that the Supreme Court decided Kumho Tire Co. v. Carmichael, 526 U.S. 137 (1999) -- and the
Kumho opinion, id. at 156-57 actually cited our Committee Note to the proposed Evid. R. 702
amendment. Consequently our Committee made sure that the ultimate Note to the year 2000
amendment to Evid. R. 702 in turn cited to Kumho, which should really be given equal footing
with Daubert in terms of the definitive standards.

-2-