Hill v. Brass Eagle, Inc. et al
Filing
72
MEMORANDUM OPINION AND ORDER signed by the Honorable Matthew F. Kennelly on 8/29/2016: For the reasons stated in the accompanying Memorandum Opinion and Order, the Court denies defendants' motion for sanctions [dkt. no. 45], as well as their mo tion for summary judgment and exclusion of expert testimony [dkt. no. 58]. The case is set for a status hearing on September 6, 2016 at 9:00 a.m. for the purpose of discussing the possibility of settlement. Counsel for both sides are to jointly call chambers for the status hearing. (mk)
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
TYLER HILL,
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Plaintiff,
v.
BRASS EAGLE, INC., JT SPORTS, LLC,
and KEE ACTION SPORTS, LLC,
Defendants.
Case No. 15 C 368
MEMORANDUM OPINION AND ORDER
MATTHEW F. KENNELLY, District Judge:
During a paintball game, one teenage boy shot another, Tyler Hill, in the eye with
a paintball. Though Hill had been wearing a protective facemask that day, he removed
the mask before being shot, allegedly because the mask had fogged up and limited his
vision. Hill has sued the manufacturers of the mask—Brass Eagle, Inc., JT Sports, LLC,
and KEE Action Sports, LLC (defendants)—asserting claims for products liability (count
one), breach of implied warranty of merchantability (count two), breach of implied
warranty of fitness (count three), and breach of express warranty (count four).
Defendants have moved for sanctions against Hill for spoliation of evidence on the part
of Hill's expert witness, Jason Babcock. They have also moved to exclude Babcock's
testimony and for summary judgment. For the reasons discussed below, the Court
denies defendants' motions.
Background
Hill was fourteen years old on September 18, 2009, the day of his eye injury.
1
That afternoon, he and nine other fourteen and fifteen year old boys were playing
paintball in a vacant field in Antioch, Illinois. At dusk, while the boys were still playing,
Hill declared himself out of the game after being shot by a paintball in his midsection.
He says that when he stood up in the field, he could not see his surroundings because
the protective facemask he was wearing had become fogged over. Hill removed the
mask from his face, and another player subsequently shot a paintball that struck Hill and
injured his left eye.
Hill's father had purchased the JT Entry Goggle Soft Stream mask as a gift for
Hill. The mask's packaging stated that the lens on the mask's goggles was "fog
resistant." Though Hill received the mask and other paintball items in a cardboard gift
box, his father told him the items were new, and they did not look used. The
manufacturer's instructions were not included in the gift box Hill received, but
defendants maintain that all new JT Sports products are accompanied by instructions
warning that fogging may occur and that users should never remove goggles during
play even if fogging does occur. Despite not having read the instructions, Hill admits
that he did not expect the mask to be fog-proof on the day he was injured. He had used
the mask in a paintball game once before, several weeks prior to the date of his injury.
In that prior game and throughout the day of his injury, Hill had attempted to clear the
fogging on his mask by sticking a finger inside the mask and wiping the goggles. But he
says that by the time of his injury, the wiping method was no longer effective at clearing
the fog to allow him to see. All of the other boys who were playing with Hill on the day
of his injury testified that their masks were also fogging that day.
Hill, by his mother, initially filed suit in state court, alleging negligence against the
2
boy who shot him and negligent supervision against the boy's father. Hill later amended
that initial complaint to add claims against defendants. After Hill reached a settlement
agreement with the boy who shot him and his father, he voluntarily dismissed the case
against the remaining defendants in November 2013. Hill then filed this action, again in
state court, against the current defendants in September 2014. Defendants removed
the case to federal court based on diversity of citizenship.
Hill's counsel retained Jason Babcock, a chemist, to examine the mask.
Babcock explains in his expert report that single-pane polycarbonate lenses, the type of
lens used in the mask Hill was wearing, are intrinsically hydrophobic and will thus cause
condensed moisture to bead up and distort light transmission through the lens, creating
a fogging effect. According to Babcock, manufacturers of paintball mask lenses
typically treat the masks with anti-fog coatings—by dipping the lenses in coating
solutions—to make the lens surfaces hydrophilic, in other words, more wettable. He
conducted tests on a number of paintball masks, including Hill's mask, to assess their
anti-fog properties. At the time Babcock received Hill's mask to begin testing, it had
paint, debris, and dirt on it.
One of the methods Babcock used to test the masks came from JT Sports' own
Policies and Procedures manual, which included a test procedure to evaluate the antifog properties of a lens. That test requires washing the lens and refreshing the anti-fog
coating with an aftermarket product, conditioning the lens at 40 degrees Fahrenheit for
a minimum of four hours, removing the lens, fogging it with one's breath or with a
garment steamer, and recording the time for the fog to dissipate. A lens passes the test
if no fog forms or if the fog remains on the lens for no longer than three seconds.
3
Babcock conducted this test for eight paintball masks—five masks with single-paned
lenses and three masks with dual-paned lenses. The single-paned lenses included
Hill's mask, two other JT Sports masks that were used by other boys at the paintball
game, a new JT Sports mask that contained a fan system to reduce fogging, and a new
U.S. Army Ranger Performance Goggle, purchased from a sporting goods store. Of
that group, only the U.S. Army Ranger mask passed the test. Two of the masks with
dual-paned lenses were JT masks, only one of which passed the test. Another
company manufactured the other mask with a dual-paned lens, and that mask passed.
From this testing, Babcock concluded that double-pane lenses generally fare better than
single-pane lenses and that even new, single-pane JT Sports lenses can fail the
company's own anti-fog test.
Babcock also conducted a field test with the same masks. He chose a day with
weather conditions similar to those on the day of Hill's injury and had test subjects wear
the masks during outdoor physical activity, noting the time when the inner lens began to
fog. Babcock found that none of the new masks fogged during the ten-minute test
duration, but the portion of the single-pane JT Sports mask that he left unwashed did
fog. Based on the field test and the test outlined in the JT Sports Policies and
Procedures Manual, Babcock determined that other mask lens designs and masks
made by other manufacturers were more effective at preventing fog formation than the
mask Hill had used. The mask that Hill used, Babcock concluded, does not sufficiently
prevent fogging under certain conditions during outdoor activity and is thus not suitable
for its intended use.
After the submission of his expert report and Hill's voluntary dismissal of the prior
4
state law case, but before Hill filed this action, Babcock conducted additional testing,
and Hill's counsel provided the results and conclusions from such testing to defendants'
counsel. In this round of testing, Babcock examined the surfaces of five different JT
Sports mask lenses (four used by Hill and other boys at the paintball game and one
newly purchased), as well as a U.S. Army Ranger Performance Goggle. Using
methods of elemental analysis—namely, energy dispersive x-ray spectroscopy (EDX)
and Fourier transform infrared spectroscopy (FTIR)—Babcock found no evidence that
any of the JT Sports lenses contained a polysiloxane coating, the anti-fog coating that
JT Sports claimed it applied to its masks' lenses. The EDX and FTIR testing did
indicate, however, that the U.S. Army Ranger mask contained a polysiloxane coating.
In this round of testing, Babcock also conducted a qualitative comparison of the contact
angle formed when applying a small droplet of water to the lenses, and he found that
the JT Sports lenses were less hydrophilic (and thus less resistant to fogging), as water
droplets tended to bead up more on those lenses than the droplet on the U.S. Army
Ranger lens. Finally, Babcock again conducted the anti-fog test from the JT Sports
Policies and Procedures manual, and he noted the superior performance of the U.S.
Army Ranger lens in comparison to the JT Sports lenses. From these subsequent
tests, Babcock concluded that the mask Hill wore on the day of his injury did not have
an anti-fog coating and did not have one at the time it was purchased.
To conduct this second round of testing, Babcock cut out sections of material
from the lens of the mask. Although Babcock notified Hill's counsel before cutting the
lens, neither Babcock nor Hill's counsel notified defendants or their experts that the
mask would be cut. Defendants contend that the mask is no longer in the same
5
condition as when Babcock originally took possession of it and that its original condition
can never be restored. As a result, they maintain, one can no longer look through the
mask to determine what a wearer of the mask could see, preventing defendants' experts
from conducting field tests using the mask and depriving jurors of the opportunity to try
on the mask in its original condition to see how the mask looked fogged and unfogged.
According to defendants, Babcock's destructive testing of the mask, conducted with
knowledge of his duty to preserve evidence, constitutes spoliation of evidence. They
have thus moved for sanctions, including dismissal of Hill's case, exclusion of Babcock's
testimony and all testimony regarding the condition of the mask after the incident, and
an adverse instruction regarding Hill's failure to produce evidence.
Even if the Court denies defendants' motion for sanctions, defendants contend
that Babcock's testimony should be excluded because (1) he lacks the proper
experience and qualifications to offer an opinion on the adequacy of a paintball mask's
design and (2) the opinions he intends to offer in this case are not based on a reliable
methodology. Babcock admits that he is not an expert in protective headgear design,
paintball, lens design, anti-fog coatings, or anti-fog lenses. Defendants argue that his
lack of expertise in these areas renders him unqualified to offer expert testimony about
the design of the subject mask. Despite his lack of experience in those particular
subject areas, Babcock does have a Ph.D. in chemistry, and he has over thirteen years
of experience in developing new products and researching polymers, metals, ceramics,
and other inorganic and organic materials. Hill contends that this experience qualifies
Babcock to offer his opinions in this case regarding the scientific principles governing
the fogging effect on the lenses of protective masks, as well as the effectiveness of the
6
anti-fogging properties of the mask and the masks of JT Sports' competitors.
In addition to questioning Babcock's qualifications, defendants challenge the
reliability of the methods he used to form his opinions. They argue that his conclusions
have not been tested by reliable methods and are not independently supported by peer
review or peer-reviewed literature, and that they are instead based upon his own
speculation. In particular, they note that his opinions concerning the safety of the mask
at issue when it was placed on the market are unreliable because by the time Babcock
tested the mask, it was a number of years old and was covered with paint and dirt.
They also fault Babcock for conducting his field experiment of the masks without
recreating the exact conditions from the day Hill was injured. Finally, they attack his
conclusion that the mask lacked an anti-fog coating, because the mask did, they insist,
contain a polyurethane coating, which can limit fogging by preventing scratching of the
lens. Hill counters that Babcock did indeed test his conclusions and that they were, in
fact, largely based on extensive and reliable laboratory and field testing. Regarding the
failure to test the anti-fog properties of polyurethane, Babcock says that he based his
testing of the mask's anti-fog coating on representations from defendants that their
masks were coated with polysiloxane. Thus, he says he was justified in only testing for
that particular anti-fog coating at the time.
According to defendants, if the Court bars Babcock's testimony, it must also grant
their motion for summary judgment, because Hill will be left without any expert
testimony to prove that the mask was defective or that the defect caused his injury. But
even if Babcock is permitted to offer his testimony, defendants maintain that summary
judgment is appropriate because Hill cannot show—even with the benefit of Babcock's
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opinions—that his mask was unreasonably dangerous or that the mask's alleged defect
was a proximate cause of his eye injury. Hill maintains that he has raised a genuine
issue of fact for the jury about whether the mask's tendency to fog made it unreasonably
dangerous and about whether the type of injury he suffered was reasonably
foreseeable, and thus proximately caused by the mask's alleged defect.
Discussion
A.
Defendants' motion for sanctions
The parties appear to agree that state law governs the issue of sanctions for
spoliation of evidence in a diversity case; both sides rely on Illinois case law and Illinois
Supreme Court Rule 219 in their arguments. The Court notes at the outset, though, that
some other courts have applied federal law in diversity cases to determine whether
sanctions are appropriate for alleged spoliation of evidence. See, e.g., Kucik v.
Yamaha Motor Corp., U.S.A., No. 2:08-CV-161-TS, 2009 WL 5200537, at *2 (N.D. Ind.
Dec. 23, 2009) (citing Trask-Morton v. Motel 6 Operating L.P., 534 F.3d 672 (7th Cir.
2008), in concluding that federal law applied to plaintiff's request for sanctions for
destruction of evidence). As the Court concludes at the end of this section, the outcome
of the spoliation inquiry would be the same under either federal or state law, so the
Court will analyze the issue under Illinois law as both sides have done in their briefs.
Cf. J.S. Sweet Co. v. Sika Chem. Corp., 400 F.3d 1028, 1032 (7th Cir. 2005) (applying
state spoliation law where parties agreed state law applied in context of independent
tort claim for spoliation).
The Illinois Supreme Court has determined that courts may impose sanctions for
the destructive testing of evidence, even if the testing occurs prior to litigation and
8
before the entry of any protective order. See Shimanovsky v. Gen. Motors Corp., 181
Ill. 2d 112, 122, 692 N.E.2d 286, 290 (1998). Although destructive testing may have
value and may actually be difficult to avoid in certain cases, "such testing must be
authorized in the sound discretion of the trial court and be permitted only when the
rights of the opposing litigant are not unduly prejudiced." Id. (internal quotation marks
omitted). It is undisputed that Babcock engaged in destructive testing of an important
piece of evidence—namely, the allegedly defective product in a products liability case—
and that neither he nor Hill or Hill's counsel sought a court's or defendants' permission
to conduct such testing. The Court would thus be within its discretion to conclude that
Babcock's actions, of which Hill's counsel had knowledge, constituted "unreasonable
noncompliance with discovery rules." Id. at 123, 692 N.E.2d at 290.
Hill contends that Shimanovsky does not apply because that case involved
destructive testing of evidence prior to the filing of a lawsuit, whereas Babcock's
destructive testing occurred during litigation. The Court disagrees. First, despite Hill's
assertion, Babcock's destructive testing did occur prior to the filing of the present lawsuit
(though after the previous lawsuit had been filed and dismissed), while no case was
pending between the parties, just like the testing in Shimanovsky. Second, nothing in
the court's opinion in Shimanovsky suggests that unreasonable destruction of evidence
becomes permissible once litigation begins. Rather, the court in Shimanovsky affirmed
its rule that such testing must be authorized by the trial court, a rule which expressly
addresses testing conducted during litigation. Shimanovsky thus governs the issue of
sanctions for spoliation in this case.
But although the court in Shimanovsky ruled that a trial court has authority to
9
impose sanctions for the unreasonable destructive testing of evidence, the court also
noted that severe sanctions, such as those that result in a case's dismissal, should be
imposed only in "cases where the party's actions show a deliberate, contumacious or
unwarranted disregard of the court's authority." Id. at 123, 692 N.E.2d at 291. Even if a
party has committed a sanctionable wrong, courts must consider the following factors to
determine what sanction, if any, to apply:
(1) the surprise to the adverse party; (2) the prejudicial effect of the
proffered testimony or evidence; (3) the nature of the testimony or
evidence; (4) the diligence of the adverse party in seeking discovery; (5)
the timeliness of the adverse party's objection to the testimony or
evidence; and (6) the good faith of the party offering the testimony or
evidence.
Id. at 124, 692 N.E.2d at 291.
The majority of the factors in this case weigh against the imposition of sanctions.
Although defendants may indeed have been surprised to find that portions of the mask
had been cut out, and they appear to have sought discovery in a diligent fashion, the
remaining factors cut against their sanctions request. The nature of the spoliated
evidence in this particular case limits the prejudicial effect of Babcock's destructive
testing. Hill asserts a claim for defective design, not for a manufacturing defect, and
thus defendants' access to the exact mask Hill wore is not essential to their defense. As
in Shimanovsky, defendants possess "all the information and data regarding the original
design and production of the [allegedly defect product]," and they can use a new version
of the mask if they wish to demonstrate to the jury how the mask operates when fogged
and unfogged. In addition, defendants have not acted in a timely fashion in objecting to
the spoliation of the evidence. Hill represents that defendants first raised their objection
to the destructive testing in their motion for sanctions, a year and a half after the testing
10
occurred, and defendants fail to respond to that contention in their reply brief. Finally,
and significantly, the record does not disclose any bad faith on the part of Hill or
Babcock in conducting the destructive testing. It appears that Babcock cut portions of
the lens as part of a good faith effort to analyze its chemical properties, not in attempt to
sabotage defendants' own testing opportunities. The failure to show that Hill or
Babcock was operating in bad faith would prevent the imposition of sanctions even if the
Court applied federal law to the spoliation issue. See Trask-Morton, 534 F.3d at 681
("[A] showing [of bad faith] is a prerequisite to imposing sanctions for the destruction of
evidence."). Thus the Court declines to impose sanctions for Babcock's destructive
testing of Hill's mask.
B.
Defendants' motion to exclude Babcock's testimony
The admissibility of evidence in diversity cases is governed by federal law,
including the Federal Rules of Evidence. In re Air Crash Disaster Near Chicago, Ill. on
May 25, 1979, 701 F.2d 1189, 1193 (7th Cir. 1983). Under federal law, an expert
witness who is qualified as an expert "by knowledge, experience, training, or education"
may testify if:
(a) the expert's scientific, technical, or other specialized knowledge will
help the trier of fact to understand the evidence or to determine a fact in
issue;
(b) the testimony is based on sufficient facts or data;
(c) the testimony is the product of reliable principles and methods; and
(d) the expert has reliably applied the principles and methods to the facts
of the case.
Fed. R. Evid. 702. Under Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579,
596 (1993), the district court plays the role of gatekeeper, determining at the outset
11
whether an expert's proposed testimony will be relevant, reliable, and grounded in fact.
Lapsley v. Xtek, Inc., 689 F.3d 802, 809 (7th Cir. 2012). The expert's proponent bears
the burden of establishing, by a preponderance of the evidence, that the expert's
testimony is admissible. United States v. Saunders, No. 13-3863, 2016 WL 3213039, at
*4 (7th Cir. June 10, 2016).
1.
Qualifications
Defendants contend that although Babcock may be a capable chemist, his
chemistry background does not qualify him to testify about the design of a paintball
mask or about fog-resistant coating. They note that he has no experience in paintball or
the design of protective headgear, paintball masks, or lenses. Just as a heart surgeon
lacks the knowledge to offer a reliable opinion about spine surgery, defendants argue, a
chemist who lacks experience in paintball mask design is unqualified to offer an opinion
about the safety of the design of Hill's paintball mask. See Ancho v. Pentek Corp., 157
F.3d 512, 519 (7th Cir. 1998) ("Just as a qualified and board certified heart surgeon
does not possess sufficient knowledge of orthopaedic medicine to render an expert
opinion on spine surgery, likewise we agree with the trial court's ruling that a mechanical
engineer . . . lacks qualifications to give expert testimony about [manufacturing] plant
reconfiguration.").
The Court's role, however, is not to ask whether Babcock is qualified in general
to testify about paintball mask design, but to look at "each of the conclusions he draws
individually to see if he has the adequate education, skill, and training to reach them."
Gayton v. McCoy, 593 F.3d 610, 617 (7th Cir. 2010). In this case, Babcock's training as
a chemist and his experience in product development qualify him to provide the specific
12
opinions he intends to offer. His conclusion that single pane polycarbonate lenses are
hydrophobic and thus prone to fogging is based on basic chemistry, as well as a
literature review on the subject—a review that, as a scientist, he was more than capable
of conducting. His conclusion that certain JT Sports masks were more prone to fogging
than other masks is a conclusion about the chemical properties of the masks and is
based on testing that he was qualified to administer. And his conclusion that the mask
Hill wore on the day of his injury lacked a particular anti-fog coating is based on a
chemical analysis of the mask lenses that is squarely within the purview of a chemist's
expertise. Babcock does not purport to be offering opinions about the rules of paintball
or the non-fogging aspects of paintball gear design, subjects about which he admittedly
lacks expertise. To the extent Babcock's lack of direct experience with paintball and
paintball gear design undermines his credibility as a witness, defendants can press that
point on cross-examination. See Stollings v. Ryobi Techs., Inc., 725 F.3d 753, 765 (7th
Cir. 2013) (discussing jury's "essential role as the arbiter of the weight and credibility of
expert testimony").
2.
Reliability
Defendants argue that even if Babcock were qualified to offer expert testimony in
this case, his opinions are unreliable because they are not based on testable methods
and are not independently supported by peer review or by peer-reviewed literature. It is
true that whether a theory or technique can be (or has been) tested and whether a
theory or technique has been subject to peer review and publication are factors for
courts to consider in determining the reliability of a proposed expert's methods. See
Daubert, 509 U.S. at 593. But "lack of peer review will rarely, if ever, be the single
13
dispositive factor that determines the reliability of expert testimony." Smith v. Ford
Motor Co., 215 F.3d 713, 720 (7th Cir. 2000). Rather, the determination of whether an
expert's methods are reliable "is an individualized test whose relevant factors will
depend on the type of expertise at issue in a given case." Id.
In this case, defendants have not provided reason to believe that there would be
peer-reviewed literature on the narrow subjects about which Babcock is offering an
opinion. Thus the absence of literature does not suggest that Babcock has ventured
beyond the realm of accepted scientific practice in forming his conclusions. And
contrary to defendants' assertions regarding testability, Babcock's opinions are indeed
testable because they are based on tests he, himself, conducted. Those tests include
an anti-fog test drawn from JT Sports' own Policies and Procedures Manual, a field test
of the mask and other identified masks, a qualitative comparison of contact angles
formed when droplets of water were applied to the lenses of identified masks, and the
EDX and FTIR elemental analyses of the same masks. If defendants dispute the
results of such tests, they may conduct their own versions of the tests and attempt to
correct any flaws in the methodology they observe. Apart from pointing out specific
flaws in the ways Babcock conducted his tests, defendants do not appear to dispute the
general reliability of field testing, qualitative comparisons of lenses' contact angles, EDX
and FTIR, or their own anti-fog test. 1
1
Defendants do argue in their reply brief, but not in their initial brief, that the
JT Sports anti-fog test is a quality control test used to evaluate only new lenses, which
defendants say that Babcock himself admitted. Babcock, however, only admitted during
his deposition that quality control tests are usually conducted on new products, and he
denied having seen anywhere that the JT Sports anti-fog test was intended as a test
only for new products. In any event, "it is well-established that arguments raised for the
14
As for the methodological flaws defendants say they have identified, they do not
undermine the reliability of Babcock's methods. To the extent the alleged flaws are
valid, they speak more to the weight his conclusions should be afforded. In particular,
defendants attack the following purported flaws in Babcock's testing: (1) failing to
explain how he reduced the temperature to 40 degrees Fahrenheit to conduct his antifog testing, (2) conducting his field test without recreating the exact conditions that
existed on the day of Hill's injury, and (3) drawing conclusions about the design of a
mask years after it had entered the market and after it had been covered with paint, dirt,
and debris and had its surface wiped numerous times. None of these alleged flaws so
undermines Babcock's methodology that his testimony is appropriately excluded.
Defendants have not even explained, for example, why it is necessary to know how
Babcock reduced the temperature to 40 degrees to conduct his test. As for the
conditions of Babcock's field test, Babcock testified that he attempted to recreate the
conditions from the day of the injury. To the extent Babcock failed in that attempt,
defendants can argue that the conclusions drawn from that test should be given less
weight. Finally, with regard to the state of the mask at the time of testing, Babcock has
attempted to address that concern by also testing the anti-fog coatings of new JT Sports
masks. In addition, whether Babcock is justified in drawing his conclusion from a test of
an old mask in a used condition is a question for the jury, not for the Court, to decide.
"Vigorous cross-examination, presentation of contrary evidence, and careful instruction
on the burden of proof are the traditional and appropriate means of attacking shaky but
admissible evidence." Daubert, 509 U.S. at 596.
first time in the reply brief are waived." Mendez v. Perla Dental, 646 F.3d 420, 423–24
(7th Cir. 2011).
15
Finally, defendants attack Babcock's conclusion that the mask lacked any antifog coating. They assert that the mask had a polyurethane coating, which is used to
make masks fog-resistant by preventing scratching of the lens, but that Babcock did not
realize that polyurethane was used for that purpose when he conducted his test.
Babcock admits that he did not realize that mask manufacturers used polyurethane as
an anti-fog coating and says that he only tested for the presence of polysiloxane
because he knew that that coating had anti-fog properties and because defendants
represented that its masks contained polysiloxane. Based on this new information,
Babcock says he would revise his report to say that the mask did not contain a
polysiloxane coating, but he also maintains that polyurethane is less hydrophilic (and
thus less fog-resistant) than polysiloxane and that polysiloxane is thus a preferable
coating for preventing fogging. This conclusion is supported by his own basic chemistry
knowledge as the well as the testing he performed, which showed greater resistance to
fogging among the masks coated with polysiloxane. Thus even this updated conclusion
is based on reliable methodology, and defendants will be free to attack on crossexamination any "shakiness" of his testimony resulting from his prior confusion about
polyurethane's anti-fogging purpose.
3.
Relevance
In the course of Babcock's expert report, he does not definitively conclude that
the mask was "unreasonably dangerous." Rather, he opines that the material of which
the mask's lens was composed renders the mask prone to fogging, that the mask did
not contain the anti-fog coating it was purported to contain, and that other masks did
contain that coating and were less prone to fogging. During his deposition, Babcock
16
would only say that the mask's propensity to fog, when compared with other masks,
"could have been" unreasonably dangerous. See Babcock Dep., Ex. J to Defs.' Mots.,
at 110:14–22. According to defendants, Babcock's testimony should be excluded
because his failure to offer an opinion on the ultimate issue of whether the mask was
"unreasonably dangerous," and thus defectively designed, renders his testimony
irrelevant. But the bar for relevance is not as high as defendants suggest. "[E]xpert
testimony need only be relevant to evaluating a factual matter in the case. That
testimony need not relate directly to the ultimate issue that is to be resolved by the trier
of fact." Smith, 215 F.3d at 720. Under this standard, there can be no doubt that
Babcock's testimony is "relevant to evaluating a factual matter in the case." His opinion
about the fogging potential of the mask and his comparison of alternative designs' antifogging properties is relevant to the jury's evaluation of whether the mask was
unreasonably prone to fogging. Thus, although Babcock's testimony would be relevant
even if it did not relate directly to the ultimate issue, it clearly does so in this case.
The fact that Babcock's testimony is relevant, however, does not necessarily
mean that it is sufficient to support a finding that the mask was defectively designed. In
products liability cases, such a conclusion generally does require the support of an
expert opinion. See Baltus v. Weaver Div. of Kidde & Co., 199 Ill. App. 3d 821, 835,
557 N.E.2d 580, 589 (1990). But whether Babcock has offered enough expert
testimony to permit a lay jury to conclude that the mask was defective is a question
more appropriately considered as part of the summary judgment analysis, to which the
Court now turns.
17
C.
Defendants' motion for summary judgment
Defendants argue that even if Babcock's expert testimony is admitted, the Court
should grant summary judgment because Hill cannot meet the burden of proof for his
design defect claim. Summary judgment should be granted only when there are no
genuine disputes of material fact and the moving party is entitled to judgment as a
matter of law. Fed. R. Civ. P. 56(a). In ruling on a motion for summary judgment,
courts must construe all facts in the light most favorable to the nonmoving party.
Williams v. Brooks, 809 F.3d 936, 941 (7th Cir. 2016).
The parties do not dispute that Illinois' products liability law applies in this
diversity case. Under Illinois law, a plaintiff bringing a claim for strict liability based on a
defect in the product bears the burden of establishing the following:
(1) a condition of the product as a result of manufacturing or design, (2)
that made the product unreasonably dangerous, (3) and that existed at the
time the product left the defendant's control, and (4) an injury to the
plaintiff, (5) that was proximately caused by the condition.
Mikolajczyk v. Ford Motor Co., 231 Ill. 2d 516, 543, 901 N.E.2d 329, 345 (2008).
Defendants maintain that Hill cannot meet his burden to prove that the mask was
unreasonably dangerous when it left defendants' control or that any alleged defect was
the proximate cause of his injury.
1.
Unreasonable dangerousness
Under Illinois, a plaintiff may demonstrate that a product was unreasonably
dangerous by one of two methods: the consumer-expectation method or the risk-utility
method. Id. at 548, 901 N.E.2d at 348. Under the consumer-expectation method, a
plaintiff can prove that a product is unreasonably dangerous by showing that it is
"dangerous to an extent beyond that which would be contemplated by the ordinary
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consumer who purchases it, with the ordinary knowledge common to the community as
to its characteristics." Calles v. Scripto-Tokai Corp., 224 Ill. 2d 247, 254, 864 N.E.2d
249, 255 (2007). In particular, the plaintiff must show that the product is unreasonably
dangerous "when put to a use that is reasonably foreseeable considering its nature and
function." Mikolajczyk, 231 Ill. 2d at 554, 901 N.E.2d at 352. The plaintiff need not
present evidence of ordinary consumer expectations, because "members of the jury
may rely on their own experiences to determine what an ordinary consumer would
expect." Id. The risk-utility test, on the other hand, looks at the question from a societal
perspective, asking whether the benefits of the challenged product's design outweigh
the risk of danger inherent in such designs. Id. at 527, 901 N.E.2d at 339.
The Court addresses the consumer-expectations test first. According to
defendants, the mask cannot be considered unreasonably dangerous under this test
because the ordinary consumer who purchases it would expect the mask to fog.
Defendants point out that Hill himself expected his mask to fog because it had fogged
when he had used it previously. And all of the other boys playing on the day of Hill's
injury also had fogged masks; from this fact, defendants infer that those boys, too,
expected their masks to fog. Even Babcock, defendants note, admitted that he was
unaware of any paintball masks that were completely fog-proof under all conditions.
Thus defendants contend that fogging is inherent in the use of any paintball masks
currently on the market. They argue that this case, therefore, is exactly like Lara v.
Thoro-Matic Vacuum Systems, Inc., 194 Ill. App. 3d 781, 551 N.E.2d 390 (1990). In
Lara, an Illinois court ruled that the risk of tripping over a vacuum cleaner's power cord
is inherent in the use of an electric vacuum cleaner. Id. at 787, 551 N.E.2d at 394.
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Thus the mere fact that a vacuum cleaner contained such a risk did not render it
unreasonably dangerous, and the plaintiff who was injured when she tripped over the
vacuum cleaner's cord could not recover. Id.
This case, however, is distinguishable from Lara. Although the risk of some
fogging may be inherent in the use of a paintball mask, a reasonable jury could
conclude from the evidence in this case that the degree of fogging in Hill's mask created
a danger that went beyond what the ordinary paintball mask consumer would expect.
Babcock's testing showed, for example, that the mask had a worse performance than
other masks on anti-fog tests, failed JT Sports' own recommended anti-fog test, and
lacked an effective anti-fog coating that other masks contained. In addition, Hill testified
that his mask fogged to the point that he could no longer see. Viewing this evidence in
the light most favorable to Hill, the Court concludes that a reasonable jury could find that
an ordinary consumer would not expect a paintball mask—especially a paintball mask
labeled "fog resistant"—to fog to the degree Hill's mask did and that the fogging was the
result of the mask's design.
For these reasons, Hill has presented enough evidence to establish that the
mask's design was unreasonably dangerous when it left defendants' control under the
consumer-expectations method. Because a plaintiff may prove unreasonable
dangerousness under either the consumer-expectations method or the risk-utility
method, and because the evidence offered at trial would be similar under both methods,
the Court need not engage in the full risk-utility analysis at this stage to determine that
Hill has satisfied this element of his design defect claim.
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2.
Proximate cause
A plaintiff asserting a strict liability claim for defective design of a product, like a
plaintiff asserting a claim for negligence, must establish that the defendant proximately
caused his injury. Kleen v. Homak Mfg. Co., 321 Ill. App. 3d 639, 641, 749 N.E.2d 26,
29 (2001). "A proximate cause is one that produces an injury through a natural and
continuous sequence of events unbroken by any effective intervening cause." Id.
Proximate cause is "ordinarily a question for the jury." Id. It becomes a question of law
only where there are no material issues of fact or "only one conclusion is clearly
evident." Id. Ultimately, proximate cause or "legal cause" is "essentially a question of
foreseeability . . . ." Lee v. Chicago Transit Auth., 152 Ill. 2d 432, 456, 605 N.E.2d 493,
503 (1992).
Defendants contend that the mask's alleged propensity to fog cannot, as a matter
of law, be the proximate cause of Hill's injury because Hill's decision to play paintball at
dusk and his decision to remove the mask during the game constitute intervening,
superseding causes of his injury. They assert, without supporting citation, that the
prohibition on removing one's mask is the cardinal rule of paintball safety. And they
note Hill's admissions that he was aware of the importance of wearing a protective mask
during a paintball game and that the lack of light at the time of his injury made it difficult
to see, apart from the fogginess of the mask. Thus, defendants argue, the fogging of
Hill's mask was merely a condition, and not the cause, of his injury. They compare his
case to Rodriguez v. Glock, Inc., 28 F. Supp. 2d 1064, 1071–73 (N.D. Ill. 1998), in
which a court granted summary judgment for the gun manufacturer defendant because
a third party's reckless pointing of a gun at the plaintiff constituted a superseding cause
21
of the plaintiff's gunshot injury, regardless of any defect present in the gun. The court in
Rodriguez ruled that the gun's alleged defect was merely a condition as opposed to a
cause of the plaintiff's injury because the struggle involving the plaintiff in which the gun
was pointed at the plaintiff was "so improbable and unforeseeable that it removed any
potential liability from [the manufacturer.]" Id. at 1073.
Hill, however, points to a useful example of a case in which an Illinois court found
that the proximate cause element had been satisfied even though the subject product's
alleged defect did not immediately cause the plaintiff's injury. See Mack v. Ford Motor
Co., 283 Ill. App. 3d 52, 669 N.E.2d 608 (1996). In Mack, a fuel shut-off device disabled
a plaintiff's automobile after a collision, which led one of the plaintiffs to exit his car on a
highway and seek help from others, one of whom was struck and killed. The court
concluded that the allegedly defective shut-off device was a cause of the plaintiff's
injury, not merely a condition, because even though a number of events occurred
between the activation of the shut-off device and the injury, each event was foreseeable
to the automobile manufacturer. Id. at 58–59, 669 N.E.2d at 614.
Viewing the evidence in the light most favorable to Hill, the Court cannot
conclude that Hill's actions were so improbable that they constitute superseding causes
of his injury. Because of the foreseeability of the type of injury Hill suffered, this case
more closely resembles Mack than Rodriguez. Although Hill testified that the lack of
light made it difficult to see at the time of his injury, he also asserts that it was primarily
the mask's fogging that made it difficult for him to see. Based on Hill's assertion, a
reasonable jury could find it foreseeable that a paintball player might remove his mask,
despite a prohibition on doing so, if it became so fogged that the player could no longer
22
see. Walking around during a paintball game while unable to see, after all, carries its
own risks. Similarly, a reasonable jury could find it foreseeable that someone would use
the mask to play paintball up until the time when the sun set or that the mask might
otherwise be used in conditions with subpar lighting. Hill's actions were not "so
improbable and unforeseeable" that defendants should be excused as a matter of law
from all liability for the alleged defect in their mask.
Defendants also argue that the length of time between the manufacturing of Hill's
mask and his injury, as well as the wear and tear on the mask, preclude a finding that
any defect in the mask's design was the proximate cause of his injury. According to
defendants, because the fog-resistant coating could have been degraded over time—
especially given the undisputed fact that the mask was covered in paint, dirt, and debris
at the time of Hill's injury—it would be speculation for a jury to find that the mask's
design, rather than mere wear and tear over time, caused the mask to fog. This
argument, however, is at odds with Babcock's findings. Babcock concedes that the
mask was manufactured years ago, was covered with foreign substances, and could
have seen its anti-fog coating degrade over the years. Yet he maintains his opinion,
based on his knowledge of the chemical properties of the coatings on the mask and his
own testing, that it was the mask's design that caused it to fog at a higher degree than
other masks. Thus, viewing the evidence in the light most favorable to Hill, the Court
concludes that a jury could credit Babcock's testimony and determine that it was the
mask's design—rather than wear and tear—that proximately caused the mask's fogging
and Hill's injury.
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Conclusion
For the reasons stated above, the Court denies defendants' motion for sanctions
[dkt. no. 45], as well as their motion for summary judgment and exclusion of expert
testimony [dkt. no. 58]. The case is set for a status hearing on September 6, 2016 at
9:00 a.m. for the purpose of discussing the possibility of settlement. Counsel for both
sides are to jointly call chambers for the status hearing.
Date: August 29, 2016
________________________________
MATTHEW F. KENNELLY
United States District Judge
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