Ostrinsky v. Stanley Black & Decker, Inc. et al
Filing
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MEMORANDUM Opinion and Order. Signed by the Honorable Samuel Der-Yeghiayan on 6/14/2016. Mailed notice. (kp, )
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
DAVID OSTRINSKY, As Administrator )
of the Estate of Michael Ostrinsky,
)
deceased,
)
)
Plaintiff,
)
)
v.
)
)
BLACK & DECKER (U.S.) INC., et al., )
)
Defendants.
)
No. 15 C 1545
MEMORANDUM OPINION
SAMUEL DER-YEGHIAYAN, District Judge
This matter is before the court on Defendant Black & Decker (U.S.) Inc’s
(B&D) motion to bar Plaintiff’s expert witness. For the reasons state below, the
motion is granted in part and denied in part.
BACKGROUND
On February 19, 2013, Michael Ostrinksy (Ostrinksy) was allegedly present
in his residence (Residence) in Wauconda, Illinois, when a toaster made by B&D
failed to pop up bagel slices and started a fire. As a result of the fire, Ostrinksy
allegedly died from smoke inhalation and carbon monoxide poisoning. Plaintiff,
acting as the Administrator of Ostrinksy’s Estate, brought the instant action in state
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court and included in his complaint a wrongful death strict product liability claim
(Count I), a Survival Action strict product liability claim (Count II), a wrongful death
negligence claim (Count III), and a Survival Action negligence claim (Count IV).
Defendants removed the instant action to federal court and now seek to bar certain
testimony by Plaintiff’s expert witness.
DISCUSSION
B&D seeks to bar certain opinions of Dr. Mary E. Case MD (Case), who is
Plaintiff’s proposed expert witness. The district court acts as a gatekeeper in
determining whether to allow an expert to testify at trial. C.W. ex rel. Wood v.
Textron, Inc., 807 F.3d 827, 834-35 (7th Cir. 2015)(stating that “the key to the gate is
not the ultimate correctness of the expert’s conclusions,” but “[i]nstead, it is the
soundness and care with which the expert arrived at her opinion”)(internal quotations
omitted)(quoting Schultz v. Akzo Nobel Paints, LLC, 721 F.3d 426, 431 (7th Cir.
2013)). Federal Rule of Evidence 702 (Rule 702) and Daubert v. Merrell Dow
Pharmaceuticals., Inc., 509 U.S. 579 (1993) “govern the admission of expert
testimony in federal courts, even when . . . jurisdiction rests on diversity.” Id. Rule
702 provides the following:
A witness who is qualified as an expert by knowledge, skill, experience,
training, or education may testify in the form of an opinion or otherwise 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
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principles and methods to the facts of the case.
Fed. R. Evid. 702. Daubert indicates that in assessing the reliability of an expert
opinion, a court may consider factors such as: “(1) whether the scientific theory has
been or can be tested; (2) whether the theory has been subjected to peer-review
and/or academic publication; (3) whether the theory has a known rate of error; and
(4) whether the theory is generally accepted in the relevant scientific community.”
Textron, Inc., 807 F.3d at 834-35 (stating that “[u]ltimately, reliability is determined
on a case-by-case basis”).
In the instant action, in Count VIII Plaintiff is seeking damages for pain and
suffering that Ostrinksy allegedly experienced during the fire before he died. Under
Illinois law, “consciousness is a requisite element of a complaint seeking recovery
for pain and suffering,” and “in presenting such a claim, the evidence involved must
do more than provide mere speculation that the decedent was conscious and suffered
pain.” Ellig v. Delnor Cmty. Hosp., 603 N.E.2d 1203, 1207 (Ill. App. Ct. 1992). In
order to assist the jury in concluding that Ostrinksy was conscious and experienced
pain and suffering, Plaintiff hired Case to provide expert opinions. B&D seeks to bar
Case’s opinion that Ostrinksy suffered a carbon-monoxide-related headache for some
indeterminate amount of time before losing consciousness, and to bar Case’s opinion
that Ostrinksy may have experienced discomfort breathing soot before losing
consciousness. Plaintiff concedes that Case should not be allowed to opine that
Ostrinksy may have experienced discomfort breathing soot before losing
consciousness. (Resp. 7). Therefore, the motion to bar such testimony relating to a
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discomfort in breathing is granted.
In regard to Case’s opinions as to pain and suffering from certain symptoms,
B&D does not dispute that Case is qualified to make such an opinion. B&D argues
only that Case’s opinion regarding such pain and suffering is not reliable and will not
assist the trier of fact. Although B&D moves to bar the totality of Case’s opinion
regarding Ostrinksy’s consciousness and his experiencing pain and suffering, as
explained below, her opinion does not necessarily need to be admitted or barred in its
entirety on that issue.
I. Amount of Time that Ostrinksy Experienced Pain and Suffering
B&D argues that Case has not offered a reliable opinion regarding the amount
of time that Ostrinksy was conscious and experienced pain and suffering. Case
opined that Ostrinksy would have been conscious while experiencing pain and
suffering for “10 minutes or more. . . .” (Case Rep. 4). B&D has presented evidence
showing that a key factor in determining the rate at which an individual’s
carboxyhemoglobin level increases is the atmospheric concentration of carbon
monoxide. Although Case in estimating the time of pain and suffering makes a
conclusory reference to the “atmosphere . . . . [in] this case,” the record does not
indicate that Case has sufficient information as to what the atmosphere was in this
case. (Case Rep. 4). Case admitted during her deposition that an individual who is
in an area with a higher concentration of carbon monoxide in the atmosphere will
reach a lethal level faster than an individual who is in an area with a lower
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concentration in the atmosphere. (C Dep. 67). Yet Plaintiff does not dispute that
Case did not conduct any sort of test at the Residence as to the atmospheric
concentration of carbon monoxide during the fire. Case acknowledged at her
deposition that the atmospheric level in Ostrinksy’s residence was not measured. (C
Dep. 68). Case also admitted that she did not review any of the tables that correlate
the time of absorption versus atmospheric content. (C Dep. 69). Case indicated that
she has observed videos of people who have committed suicide using a hose or in a
garage. (C Dep. 77). However, Case has not shown that the suicide scenarios where
carbon monoxide was purposefully being directed into an area would have
atmospheric conditions comparable to that in a residential fire. Case was asked at
her deposition if she had any opinion as to what the carbon monoxide atmospheric
level was in the Residence, and Case responded: “I do not.” (C Dep. 69). Case was
further asked if she could at least provide a range of the level of carbon monoxide in
the atmosphere in the Residence, and Case responded: “No, I cannot.” (C Dep. 69).
Case thus has acknowledged her lack of knowledge as to a key variable that would
be necessary for any calculation or even reasonable estimation of the rate at which
Ostrinksy’s carboxyhemoglobin level increased. That in turn means that Case can do
nothing more than speculate as to the amount of time that passed between the point
that Ostrinksy began to experience pain and suffering and the point he lost
consciousness. Case has not shown that her opinion in this regard is reliable or that
it will assist the trier of fact. Therefore, Case will be barred from presenting any
opinion as to how long Ostrinksy experienced pain and suffering.
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II. Loss of Consciousness
Although Case cannot opine as to the amount of time that Ostrinksy was
conscious, that does not mean that Case’s opinion regarding the phases that a
person’s body will ordinarily go through when inhaling carbon monoxide would be
inadmissible. As indicated above, in order to obtain damages for pain and suffering,
Plaintiff will need to establish that Ostrinksy was conscious. Ellig, 603 N.E.2d at
1207. Case has listed various pieces of evidence and literature that she has relied
upon in estimating the stages that Ostrinksy would have gone through before losing
consciousness. Case opined that Ostrinksy would not have immediately lost
consciousness when inhaling the carbon monoxide. (Case Rep. 4); (Reply 7). Such
an opinion by Case would assist the trier of fact. B&D argues that no one has any
way of knowing for sure whether Ostrinksy was conscious when the fire started or if
he immediately lost consciousness when the fire started. (Reply 7). Plaintiff,
however, does not have to provide definitive evidence on such points. Plaintiff may
use expert testimony such as through Case to provide an opinion on the issue of
consciousness.
Case opines that Ostrinksy would have lost consciousness at “between 30 and
40 [percent], approaching 50 percent.” (C Dep. 77). Such an opinion would assist
the trier of fact in at least understanding that at a certain level Ostrinksy would have
lost consciousness. Plaintiff has shown that such opinions are relevant and reliable.
Case explains that she formed her opinion based upon her training and experience
and the sources for her opinions, including her study of car suicide victims. Case
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thus can offer her opinion that Ostrinksy would have remained conscious after he
began inhaling carbon monoxide and that he would have lost consciousness at a
certain carboxyhemoglobin level.
III. Pain and Suffering
Case’s opinion also is relevant to show that Ostrinksy would have suffered
pain and suffering while conscious. Case estimates that Ostrinksy would have begun
experiencing symptoms such as a throbbing headache when his carboxyhemoglobin
level reached 20%. (Case Rep. 4). Such an opinion would also assist the trier of fact
by providing information regarding how a body reacts to carbon monoxide inhalation
symptoms before becoming unconscious. In addition, the estimates by Case as to the
carboxyhemoglobin level at which Ostrinksy would have begun experiencing the
symptoms will assist the trier of fact. Plaintiff explains that it is difficult to conduct
scientific tests as to the phases a body goes through when a person dies from carbon
monoxide inhalation because of the nature of the event. Case explains that she has
researched videos of suicides and other materials in forming her estimates. (C Dep.
77). Plaintiff has shown that her opinion in this regard is sufficiently reliable. B&D
takes issue with the ranges provided by Case and criticizes Case for not being able to
specifically identify what symptoms Ostrinksy actually suffered, and for not
considering certain issues. However, as explained above, this initial gatekeeping
stage is not the proper moment to directly contest the opinion of an opponent’s
expert. Textron, Inc., 807 F.3d at 834-35. B&D will have an opportunity at trial to
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try and show that Case’s opinion is not correct and argue that it should not be
accepted by the trier of fact. Therefore, Case will be allowed to offer an opinion that
Ostrinksy would have suffered certain painful symptoms and that at a certain
carboxyhemoglobin level Ostrinksy would have begun experiencing such pain and
suffering.
B&D is correct that Case does not provide any definitive evidence as to
exactly what transpired during the fire, and that no one knows for certain whether
Ostrinksy felt a headache for a single breath before losing consciousness, or felt the
symptoms for several minutes. (Mem. 12). However, procuring the opinion of an
expert on such an issue is a proper step that may be taken by a plaintiff in civil
litigation. Case provides certain opinions that are reliable and are relevant in this
case. Ultimately it is the trier of fact that will make that definitive determination as
to whether Ostrinksy was conscious during the fire and whether he experienced pain
and suffering after hearing the evidence and opinions presented by both sides.
Plaintiff has shown that, aside from estimating the amount of time that the pain and
suffering occurred, Case’s opinions are sufficiently reliable and relevant, and would
assist the trier of fact in this case. Plaintiff should be entitled to present his expert
witness on these points. B&D in turn will have the opportunity to cross-examine
Case at trial and to present its own expert witness to try and show the trier of fact that
Case’s opinions should not be followed by the trier of fact.
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CONCLUSION
Based on the foregoing analysis, B&D’s motion to bar is granted in part and
denied in part. Case will be barred from presenting any opinion that Ostrinksy may
have experienced discomfort breathing soot before losing consciousness, or any
opinion as to how long Ostrinksy experienced pain and suffering. Case can offer her
opinion that Ostrinksy would have remained conscious after he began inhaling
carbon monoxide and that he would have lost consciousness at a certain
carboxyhemoglobin level. Case may also offer her opinion that Ostrinksy would
have suffered certain painful symptoms and that at a certain carboxyhemoglobin
level Ostrinksy would have begun experiencing such pain and suffering.
___________________________________
Samuel Der-Yeghiayan
United States District Court Judge
Dated: June 14, 2016
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