Jones et al v. BRG Sports, Inc.

Filing 133

MEMORANDUM Opinion and Order: The Court grants defendants' motions to exclude [Case No. 17 C 8972, dkt. nos. 423, 425] and their motions for summary judgment on the claims of the seven bellwether plaintiffs [dkt. nos. 430, 433, 436, 439, 442, 44 5, 448]. The Court directs the Clerk to enter judgment in favor of the defendants and against the following plaintiffs: Simson Green [Case No. 17 C 8544], Jaquaries Johnson [Case No. 18 C 129], Gregory Page [Case No. 18 C 129], Michael Sterns [Case N o. 17 C 8544], Ashton Whitby [Case No. 17 C 8972], Walker Whitehorn [Case No. 18 C 129], and Jeffrey Wodka [Case No. 17 C 8544]. The Court denies defendants' omnibus motion for summary judgment [dkt. no. 427]. Defendants' motion for sanctio ns is moot to the extent it seeks dismissal of the bellwether cases, is denied to the extent it seeks dismissal of non-bellwether cases for the same reasons as discussed in Section D of this opinion, and taken under advisement to the extent it seeks monetary sanctions [dkt. no. 417]. The cases remain set for a telephonic status hearing on January 14, 2022. Signed by the Honorable Matthew F. Kennelly on 1/10/2022. Mailed notice. (mma, )

Case: 1:18-cv-07250 Document #: 133 Filed: 01/10/22 Page 1 of 11 PageID #:1610

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
FREDDIE ADAMS, et al.,

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Plaintiffs,
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)
vs.
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BRG SPORTS, INC., et al.,
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Defendants.
)
---------------------------------------------------------------)
JAMES BRADSHAW, et al.,
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Plaintiffs,
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)
vs.
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)
BRG SPORTS, INC., et al.,
)
)
Defendants.
)
---------------------------------------------------------------)
CORY BRANDON, et al.,
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Plaintiffs,
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vs.
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BRG SPORTS, INC., et al.,
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Defendants.
)
---------------------------------------------------------------)
JEFFREY JONES, et al.,
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)
Plaintiffs,
)
)
vs.
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)
BRG SPORTS, INC.,
)
)
Defendants.
)

Case No. 17 C 8972

Case No. 18 C 129

Case No. 17 C 8544

Case No. 18 C 7250

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MEMORANDUM OPINION AND ORDER
MATTHEW F. KENNELLY, District Judge:
The plaintiffs in these cases, all of whom played high school football, allege that
the defendants produced helmets with inadequate warnings, which caused the plaintiffs'
brain and neurocognitive injuries. Because the cases include dozens, the parties and
the Court selected certain plaintiffs' cases as "bellwether" cases, which have now
proceeded all the way through discovery. The defendants have filed motions to exclude
the plaintiffs' two expert witnesses and motions seeking summary judgment against
each of the bellwether plaintiffs. For the reasons set forth below, the Court grants the
motions to exclude and grants summary judgment in favor of the defendants.
Background
The plaintiffs are all former high school football players in Texas or Iowa. There
are seven bellwether plaintiffs: Simson Green, Jaquaries Johnson, Gregory Page,
Michael Sterns, Ashton Whitby, Walker Whitehorn, and Jeffrey Wodka. Either Texas or
Iowa substantive law applies to each of these plaintiff's claims. The defendants are two
related business entities: BRG Sports, Inc., formerly known as Riddell Sports Group,
Inc., and Riddell, Inc., a wholly owned subsidiary of BRG. Both companies are involved
in the manufacturing, distribution, and sale of Riddell football helmets. For simplicity's
sake, the Court will refer to the defendants collectively as Riddell.
Each plaintiff wore a Riddell helmet during the time period relevant to these
lawsuits, some as early as 1975 and others as late as 2002 or later. Beginning in 1983
and until the late 1990s, Riddell affixed warning labels to the back of its football helmets.
The warning stated: "Do not use this helmet to strike an opponent. Such an action is
against football rules and may cause severe brain or neck injury. Playing the game of
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football in itself can cause injury, and no helmet can prevent all such injuries." Am.
Master Compl. ¶ 12 (dkt. no. 184). The plaintiffs assert that this label was "inherently
misleading" by conveying that the helmet would protect against injuries so long as
participants adhered to the rules of football. Id. ¶ 13. They also allege that Riddell had
"superior knowledge" about the relative risks of wearing helmets as early as the 1970s
but did not disclose those risks. Id. ¶ 19. The plaintiffs further contend that Riddell's
later warnings—including those involving the "Revolution Helmet" product line from
2003, which Riddell claimed to be 31 percent safer than other available helmets—"were
similarly misleading and failed to effectively disclose the long-term dangers these
players would be exposed to while wearing the Riddell helmets." Id. ¶ 14–16.
Each of the plaintiffs claims to suffer from brain and neurocognitive injuries—
namely mild traumatic brain injuries (MTBIs). MTBIs include concussions, which may
cause post-concussion syndrome, chronic traumatic encephalopathy (CTE), and
"second impact syndrome." 1 Some bellwether plaintiffs contend that the scope and
existence of their injuries were only recently discovered, as they say they experienced
the neurocognitive effects of their injuries only as recently as 2017.
Following transfer of these cases from the Northern District of California, the
Court has treated them similarly to a mass-tort multidistrict litigation proceeding. In a
first amended "master complaint" containing allegations common to all plaintiffs and in
individual "short-form complaints" with allegations specific to each individual plaintiff, the
plaintiffs allege that the defendants' negligence (design defect and failure to warn)

Second impact syndrome occurs when an athlete sustains a second brain injury prior
to recovering from an initial concussion; it can cause serious head trauma or death. Id.
¶ 38–39.
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1

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caused their brain and neurocognitive injuries. To support these claims, the plaintiffs
designated Dr. Michael Motley as their warnings expert and Dr. Randall Benson as their
causation expert. Riddell does not dispute that the bellwether plaintiffs each wore a
Riddell helmet at some point during their football careers. It contends, however, that the
helmets did not cause the plaintiffs' injuries and that its warnings were adequate.
In April 2021, the Court granted summary judgment in favor of Riddell on the
plaintiffs' design defect claims but left intact the plaintiffs' failure to warn claims. Adams
v. BRG Sports, Inc., Nos. 17 C 8544, 17 C 8972 & 18 C 129, 2021 WL 1517881 (N.D.
Ill. Apr. 17, 2021). The defendants now move to exclude plaintiffs' experts Dr. Motley
and Dr. Benson based on Federal Rule of Evidence 702 and Daubert v. Merrell Dow
Pharmaceuticals, Inc., 509 U.S. 579 (1993). The defendants have also moved for
summary judgment on the plaintiffs' failure to warn claims. Among other contentions,
Riddell argues that should even one expert be excluded, the plaintiffs cannot prove all
of the elements of their failure to warn claims.
Discussion
Expert testimony is admissible if the witness is qualified, applies reliable
methodology, and offers testimony that will assist the trier of fact. See Daubert, 509
U.S. at 597. The purpose of Daubert's gatekeeping requirement "is to ensure the
reliability and relevancy of expert testimony." Kumho Tire Co. v. Carmichael, 526 U.S.
137, 152 (1999). "It is to make certain that an expert, with testimony based upon
professional studies and personal experience, employs in the courtroom the same level
of intellectual rigor that characterizes the practice of an expert in the relevant field." Id.
The party seeking to introduce expert witness testimony bears the burden of
demonstrating, by a preponderance of the evidence, that it satisfies the Daubert
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standard. Krik v. Exxon Mobil Corp., 870 F.3d 669, 673 (7th Cir. 2017).
A.

Dr. Motley
Riddell contends that the Court should exclude Dr. Motley entirely because he

lacks the appropriate qualifications regarding consumer product warnings and because
his methodology is unreliable.
"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." Carroll v. Otis Elevator
Co., 896 F.2d 210, 212 (7th Cir.1990). "[A] court should consider a proposed expert's
full range of practical experience as well as academic or technical training when
determining whether that expert is qualified to render an opinion in a given area." Smith
v. Ford Motor Co., 215 F.3d 713, 718 (7th Cir. 2000).
Dr. Motley has a Ph.D. in communication with an emphasis in psycholinguistics,
and he has authored more than sixty peer reviewed articles, books, and chapters on
communication. Furthermore, one of his most recent articles specifically focused on the
adequacy of warnings. Given his decades of experience and the subject matter of his
writings, the Court disagrees with Riddell and finds that Dr. Motley is qualified.
The Court agrees with Riddell, however, that Dr. Motley's testimony about the
adequacy of Riddell's warnings is insufficiently reliable to be admissible. See generally
Clark v. Takata Corp., 192 F.3d 750, 759 n.5 (7th Cir. 1999) (explaining that a
"supremely qualified expert cannot waltz into the courtroom and render opinions unless
those opinions. . . are reliable and relevant").
Daubert outlined a non-exhaustive list of factors to consider in evaluating an
expert witness's reliability: "(1) whether the expert's conclusions are falsifiable; (2)
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whether the expert's method has been subject to peer review; (3) whether there is a
known error rate associated with the technique; and (4) whether the method is generally
accepted in the relevant scientific community." Brown v. Burlington N. Santa Fe Ry.
Co., 765 F.3d 765, 772 (7th Cir. 2014). This "inquiry focuses not on 'the ultimate
correctness of the expert's conclusions,' but rather on ‘the soundness and care with
which the expert arrived at her opinion.'" Timm v. Goodyear Dunlop Tires N. Am., Ltd.,
932 F.3d 986, 993 (7th Cir. 2019) (quoting Schultz v. Akzo Nobel Paints, LLC, 721 F.3d
426, 431 (7th Cir. 2013)). An expert's "[s]ubjective belief or unsupported speculation"
alone will not satisfy the reliability prong. Cummins v. Lyle Indus., 93 F.3d 362, 368 (7th
Cir. 1996) (quoting Deimer v. Cincinnati Sub-Zero Prod., Inc., 58 F.3d 341, 344 (7th Cir.
1995).
Dr. Motley's own deposition testimony establishes that his opinion on the
inadequacy of Riddell's warnings does not meet Daubert's threshold. Dr. Motley
conceded during his deposition that an opinion about a warning's efficacy is merely a
hypothesis absent empirical testing. He testified that such empirical testing can be
conducted in a scientific manner, by comparing the efficacy of a given warning against a
proposed alternative. Yet, notably, he admitted that he had not conducted any such
empirical testing on Riddell's helmets: he had not tested the warning's physical
placement, its signal words, its consequence information, or its consistency, nor had he
tested whether the warning contained superfluous information. Dep. of Dr. Michael
Motley at 138–40 (dkt. no. 426-3). Instead, Dr. Motley's premised his opinion on
"principles" he believed "should generalize" to Riddell's helmet warning. Id. at 141. In
short, Dr. Motley effectively conceded that his opinion about the adequacy of Riddell's
warning label was an untested hypothesis.
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Additional considerations beyond the lack of testing buttress the proposition that
Dr. Motley's testimony does not satisfy Daubert's requirements. Dr. Motley conceded
that he had made no effort to determine whether there are any industry standards for
football helmet warning labels, despite acknowledging that one would want to know that
information to properly evaluate a warning. He also said he had never seen a Riddell
helmet in real life, so he was unfamiliar with the relative size and location of the specific
warning label at issue. Although an expert may rely on information provided by a party's
attorney, Dr. Motley has not considered contextual data in forming his opinion. See
Manpower, Inc. v. Ins. Co. of Pa., 732 F.3d 796, 806 (7th Cir. 2013); see also Wilbourn
v. BRG Sports, Inc., No. 4:19 CV-00263-P, 2021 WL 5577683, at *7–8 (N.D. Tex. Oct.
7, 2021) (excluding Dr. Motley's testimony regarding the adequacy of football helmet
warnings on similar grounds).
For these reasons, the Court concludes that Dr. Motley's testimony is
inadmissible.
B.

Dr. Benson
Riddell contends that the Court should exclude Dr. Benson's testimony in its

entirety, including his testimony and reports about both specific and general causation,
under Daubert's reliability prong. In response, the plaintiffs emphasize that this issue is
better addressed during cross-examination at trial and that Daubert does not require
scientific certainty from an expert. The Court concludes that Riddell has the better of
the argument on Dr. Benson's opinion regarding specific causation and thus need not
address his opinion on general causation.
During his deposition, Dr. Benson admitted he did not review the plaintiffs'
individual medical records, let alone conduct any case-specific analysis on these
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records. This admission likely explains why his causation report for each plaintiff
contains the same conclusory statement regarding specific causation: "playing tackle
football caused mTBI and other brain injuries and symptoms cited by Plaintiff in this
case." See, e.g., Expert Rep. of Dr. Randall Benson, M.D., as to Pl. Simson Green at
12 (dkt. no. 459-2). Following the briefing of these motions, the plaintiffs filed an
affidavit from Dr. Benson in which he maintained that he had "reviewed each Plaintiff's
fact sheet. . . and it is [his] opinion that these Plaintiffs each have individualized specific
symptoms consistent with repeated blows to the head playing football." Aff. of Dr.
Randall Benson, M.D. at 3 (dkt. no. 421-2). Even if the Court were to accept this
affidavit, however, it would not salvage Dr. Benson's testimony.
Taking his report and affidavit together, Dr. Benson has not connected his
generic specific causation medical conclusions—quoted above—with his testimony that
the types of injuries suffered by the plaintiffs have multiple possible causes. For
example, during his deposition, Dr. Benson agreed with the statement that his "reports
contain no methodology for determining whether an individual's depression comes from
participation in contact sports as opposed to one of the other causes of depression."
Dep. of Dr. Randall Benson at 121 (dkt. no. 418-1). Dr. Benson thus has not
differentiated between the plaintiffs' injuries being "consistent with" playing football and
being caused by the use of Riddell's helmets while playing football. Accordingly, based
on the record before the Court, there is nothing to show that Dr. Benson's specific
causation opinion is anything other than "unsupported speculation" given the myriad
alternative causes of the plaintiffs' brain and neurocognitive injuries. Cummins, 93 F.3d
at 368. Without more, Dr. Benson's conclusions do not amount to "the fruit of a
rigorous, objectively-verifiable approach" that Daubert requires. Timm, 932 F.3d at 994.
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For these reasons, the Court concludes that Dr. Benson's specific causation
testimony is inadmissible.
C.

Summary judgment
To obtain summary judgment, Riddell must demonstrate that "there is no genuine

dispute as to any material fact and that the movant is entitled to judgment as a matter of
law." Fed. R. Civ. P. 56(a). "If the nonmoving party fails to establish the existence of an
element essential to his case, one on which he would bear the burden of proof at trial,
summary judgment must be granted to the moving party." Cervantes v. Ardagh Grp.,
914 F.3d 560, 564 (7th Cir. 2019). Moreover, it is "entirely proper" for a court to decide
a motion for summary judgment at the same time as the admissibility of expert
testimony. Lewis v. CITGO Petrol. Corp., 561 F.3d 698, 704 (7th Cir. 2009).
To succeed on a failure to warn claim, both Texas and Iowa law require a plaintiff
to prove the warning was inadequate, as well as general and specific causation. See
Ramsey v. Caterpillar Inc., No. 12 16 00155, 2017 WL 1426793, at *2 (Tex. App. Apr.
19, 2017); Mercer v. Pittway Corp., 616 N.W.2d 602, 623–24 (Iowa 2000); see also
Order on Mot. to Dismiss at 6 (dkt. no. 182). The plaintiffs have identified Dr. Motley as
their sole expert for the adequacy element and Dr. Benson as the sole expert for both
general and specific causation.
As Riddell contends, the plaintiffs cannot meet their burden of proof on their
failure to warn claim if the referenced testimony of either of these experts is excluded.
Having determined that both experts should be excluded, the Court concludes that
Riddell is entitled to summary judgment on the claims of the bellwether plaintiffs.
D.

Defendants' "omnibus" motion for summary judgment
Defendants have separately filed what they call an "omnibus" motion for
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summary judgment, citing various other claimed deficiencies in the plaintiffs' evidence
and contentions. Given the Court's rulings on the Daubert and case-specific summary
judgment motions just discussed, the Court need not address the omnibus motion as it
relates to the bellwether plaintiffs.
The motion goes further, however. Riddell argues that given the various
deficiencies it has cited, the Court should grant summary judgment regarding all of the
plaintiffs, bellwether or otherwise. It says, essentially, that the litigation has gone on
long enough and the Court should put an end to it. The Court understands Riddell's
frustration with the fact that despite having proceeded this long, plaintiffs' counsel came
nowhere close to producing the expert testimony needed to support the bellwether
plaintiffs' claims. Given the way the litigation has been structured, however, Riddell
cannot appropriately leverage this into a dismissal of the claims of non-bellwether
plaintiffs that were expressly put on hold pending litigation of the claims of the
bellwether plaintiffs. To do otherwise would amount to a serious violation of due
process—dismissing the claims of dozens of plaintiffs without giving them an
opportunity to be heard. The Court therefore denies Riddell's "omnibus" motion.
The Court agrees, however, that given the complete failure of plaintiffs' counsel
to come up with admissible expert testimony to support the handful of plaintiffs on
whose claims the parties have focused, it is now time to accelerate the remainder of this
litigation. The parties are directed to immediately confer and offer a proposal, or
competing proposals if they cannot agree, for doing exactly that. A joint status report
containing such a proposal is to be filed by 4:00 p.m. Central time on January 13, 2022
so that it can be discussed at the January 14 telephonic status hearing. It should cover
all cases but, as per the usual practice, should be filed under Case No. 17 C 8972.
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Conclusion
The Court grants defendants' motions to exclude [Case No. 17 C 8972, dkt. nos.
423, 425] and their motions for summary judgment on the claims of the seven
bellwether plaintiffs [dkt. nos. 430, 433, 436, 439, 442, 445, 448]. The Court directs the
Clerk to enter judgment in favor of the defendants and against the following plaintiffs:
Simson Green [Case No. 17 C 8544], Jaquaries Johnson [Case No. 18 C 129], Gregory
Page [Case No. 18 C 129], Michael Sterns [Case No. 17 C 8544], Ashton Whitby [Case
No. 17 C 8972], Walker Whitehorn [Case No. 18 C 129], and Jeffrey Wodka [Case No.
17 C 8544]. The Court denies defendants' omnibus motion for summary judgment [dkt.
no. 427]. Defendants' motion for sanctions is moot to the extent it seeks dismissal of
the bellwether cases, is denied to the extent it seeks dismissal of non-bellwether cases
for the same reasons as discussed in Section D of this opinion, and taken under
advisement to the extent it seeks monetary sanctions [dkt. no. 417]. The cases remain
set for a telephonic status hearing on January 14, 2022.
Date: January 10, 2022
________________________________
MATTHEW F. KENNELLY
United States District Judge

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