Ostrinsky v. Stanley Black & Decker, Inc. et al
Filing
56
MEMORANDUM Opinion and Order. Signed by the Honorable Samuel Der-Yeghiayan on 11/16/2016. Mailed notice. (eg,)
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.
No. 15 C 1545
BLACK & DECKER (U.S.) INC., et al.,
Defendants.
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 Plaintiffls expert witness. For the reasons stated 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 Lake Barrington, Illinois, when a toaster (Toaster) made
by B&D allegedly failed to pop up bagel slices and started a fire (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 court and included in his amended complaint wrongful death
negligence and strict product liability claims, and Survival Action negligence and
strict product liability claims. On September 29,2015, Plaintiff voluntarily
dismissed all claims except the wrongful death negligence claim and the Survival
Action negligence claim brought against B&D. B&D now seeks to bar certain
testimony by Plaintifls expert witness, Darl Ebersole (Ebersole).
DISCUSSION
The district court acts as a gatekeeper in determining whether to allow an
expert to testiff 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,72I 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 testiff 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
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, [nc.,807 F.3d at 834-35 (stating that "[u]ltimately, reliability is determined
on a case-by-case basis"). B&D contends that Ebersole lacks the qualifications to
offer certain opinions and that certain opinions by Ebersole are not reliable.
I.
Qualifications to Render Opinions
B&D argues that Ebersole is not qualified to render the following opinions
that he has propounded in this case: (l) that B&D failed to follow a reasonable
standard of care in the design of the Toaster and that such failure caused Ostrinsky's
death, (2) that it was unreasonable for B&D to design a toaster that would
indefinitely heat food products to the point of combustion as a result of foreseeable
failures and blockages within the Toaster, (3) that providing a design that would
have prevented the Fire would not have imposed a significant cost to the
manufacturer and would not have defeated the utility of the Toaster, and (4) that the
owner's manual for the Toaster failed to adequately warn the user that the Toaster
could fail.
Although the court will not detail all of the education, training, and
experience listed in Ebersole's resume, the court
will touch on a few of the pertinent
points listed. The record indicates that Ebersole is a licensed Professional Engineer
and Certified Fire and Explosion Investigator. Ebersole holds a Bachelor's
of
Science in Electrical Engineering. Ebersole is a member of certain professional
panels and societies and was an instructor at a career and technology center teaching
electrical safety. Ebersole has worked as an electrical engineer, a firefighter, and
fire investigator, and has investigated more than 400 fires as a primary fire
investigator.
A.
Cause of Fire
B&D contends that Ebersole lacks the qualifications to opine that a negligent
design in the Toaster caused the Fire. B&D argues that Ebersole lacks training
regarding toaster design and lacks knowledge of the toaster industry. However,
Plaintiff is correct that an expert is not required to have such a narow focus in
training that dealt specifically with the type of product at issue. Ebersole does not
necessarily need to be an expert on toasters in order to render an opinion in this case.
B&D also contends that Ebersole is not qualified
because he lacks training and
experience in the area of the design of household products. There is, however, no
justification for an arbitrary distinction. If, for example, Ebersole had worked in
vacuum cleaner design, that would not necessarily have made him any more
qualified to expound on toasters than someone who worked on designs of other
products that are not household products. The Seventh Circuit has indicated that a
general education may not be sufficient to render a witness an expert for all
pulposes, stating, for example, that "simply because a doctor has a medical degree
does not make him qualified to opine on all medical subjects." Gayton v. McCoy,
593 F.3d 610,617 (7th Cir. 2010). While a general degree in electrical engineering
might not suffice to render an expert opinion on the design of a product such as
a
toaster and a fire, Ebersole has more than such a general education. Ebersole's
training in electrical engineering and electrical safety, and his experience with fire
investigations are sufficient to qualiff him to opine whether a negligent design in the
Toaster caused the Fire. During cross-examination, B&D
will
have an opportunity
to raise what it deems to be the deficiencies in Ebersole's qualifications, in order to
argue that his opinions should be given less weight.
The court notes that Ebersole's opinions regarding the cause of the Fire do
mention the cause of the "fatality." (Eb Rept. 73). The cause of Ostrinksy's death is
a disputed matter in this case, and Ebersole is not a medical expert and cannot
expound on the cause of death in this case.
B. Indefinitellr
Heating of Food
B&D contends that Ebersole lacks the qualifications to opine that is was
unreasonable for B&D to design a toaster that would indefinitely heat food products
to the point of combustion as a result of foreseeable failures and blockages within
the Toaster. Again, Ebersole's experience and training relating to electrical
engineering, electrical safety, and fire investigation are sufficient to qualif, him to
render such an opinion in this case. To the extent that B&D criticizes Ebersole for
his lack of involvement in toaster design or knowledge of the toaster industry in
1994, those are matters that
B&D can raise on cross examination. They
are not such
that they would disqualiff Ebersole from rendering an opinion.
C. Alternative Design
B&D contends that Ebersole lacks the qualifications to opine that providing a
design that would have prevented the Fire would not have imposed a significant cost
to the manufacturer and would not have defeated the utility of the Toaster. This
aspect of Ebersole's expert opinion differs from the above-referenced opinions
regarding the design of the Toaster in that it is connected to a proposed alternative
design as opposed to analyzingthe safety of the existing design. Without sufficient
knowledge of the toaster industry in 1994, or knowledge of toaster design, Ebersole
lacks the qualification to opine on an alternative design. He also lacks the
qualification to opine as to the cost that would have been imposed on manufacturers
or the marketability of an altemative design. Therefore, Ebersole is not qualified to
opine as to his proposed alternative design.
D. Alternative Warning
B&D contends that Ebersole lacks the qualifications to opine in regard to an
alternative warning that should have been included in the owner's manual of the
toaster. This topic delves far beyond Ebersole's training and education regarding
electrical safety and fire investigation. Ebersole has not pointed to sufficient prior
training or education that would qualit, him to render an opinion as to what
language would have been necessary in order to effectively communicate to
consumers risks associated with the Toaster
in 1994. In regard to Ebersole's
criticism of the language in the owner's manual of the Toaster, Ebersole offers
nothing more than the perspective of a non-expert layperson. Therefore, Ebersole is
not qualified to opine as to an alternative warning in the owner's manual of the
Toaster.
II.
Reliability of Opinions
B&D argues that the following opinions by Ebersole
are not reliable: (1) that
the negligent design of the Toaster caused the Fire, (2) that alternative designs
proposed by Ebersole should have been incorporated into the Toaster, and (3) that an
alternative warning should have been included in the owner's manual for the
Toaster.
A.
Negligent Design
B&D argues that Ebersole's opinion that a negligent design in the Toaster
caused the Fire is not reliable.
B&D criticizes Ebersole for working backwards from
the Fire to find negligence on B&D's part and for not conducting his testing on the
same model as the Toaster, or on a toaster model in existence
in 1994. B&D also
criticizes Ebersole's method of restricting the carriage with a rubber band during
testing, and for conducting his test in a set up that was comparable to the kitchen in
the Residence. B&D further criticizes Ebersole for using a wheat bagel in his testing
instead of an onion bagel that was believed to have been involved in the Fire. B&D
also points out that when its expert tested the Toaster under Ebersole's theory, no
fire was started. (Mot. 13, n.4). Such criticisms of Ebersole's testing by B&D can
be pointed out by
B&D during cross-examination. B&D's arguments go to the
weight that should be accorded to Ebersole's opinion. Plaintiff is entitled to present
his expert as is B&D in this case. B&D has not shown that Ebersole's opinion in
regard to the cause of the Fire is such that it should be excluded as unreliable.
B. Alternative Design
B&D argues that Ebersole's opinion in regard to an alternative design is not
reliable. As indicated above, Ebersole is not qualified to render such an opinion. In
addition, Ebersole has offered little more than vague speculation
as
to the viability
of
his proposed alternative design. He has not provided any specific written designs or
prototypes. Nor has he provided evidence of the testing of any such designs. The
court also notes that although Plaintiff contends that Ebersole's alternative designs
were the required standard in Canada and were subjected to peer review in Canada,
B&D has asserted that such statements are blatantly false and has challenged
Plaintiff to present evidence to support such statements. Plaintiff has not come forth
with such proof. Therefore, Ebersole's opinion regarding the alternative design is
not sufficiently reliable.
C. Alternative Warning
B&D argues that Ebersole's opinion in regard to an alternative warning is not
reliable. As indicated above, Ebersole is not qualified to render such an opinion. In
addition, Ebersole has not offered any evidence showing that he has conducted
testing of any proposed warning or even propounded the exact language of
a
proposed alternative warning. Nor has Ebersole shown that he has conducted
sufficient testing or investigation into an alternative warning to render his opinion in
this regard reliable. Ebersole cannot simply speculate in the abstract that an
alternative warning should have been included in the owner's manual of the Toaster.
Therefore, Ebersole's opinion regarding the alternative warning is not sufficiently
reliab1e.
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CONCLUSION
Based on the foregoing analysis, B&D's motion to bar is granted in part and
denied in part. Ebersole can opine that a negligent design in the Toaster caused the
Fire, and that it was uffeasonable for B&D to design a toaster that would
indefinitely heat food products to the point of combustion as a result of foreseeable
failures and blockages within the Toaster. Ebersole cannot opine
as
to an alternative
design or an alternative warning.
United States District Court Judge
Dated: November 16,2016
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