Darnell v. Hoelscher Inc.

Filing 62

MEMORANDUM AND ORDER Denying 32 MOTION to Strike Defendant's Expert Witness filed by Robert Darnell; Granting in part and Denying in part 34 MOTION to Strike Plaintiff's Experts, Dr. Lane Hudgins and Mark Ezra filed by Hoe lscher Inc.; Granted to the extent it seeks to exclude the opinion testimony of Mark Ezra that the lack of a warning rendered the Accumulator defective. The motion is Denied in all other respects. Denying 42 MOTION to Strike Opinion of Expert Witness Dale Gumz filed by Robert Darnell, and Denying MOTIONS in Limine 43 44 45 46 47 ]48] 49 50 51 52 53 54 55 56 58 and 59 . Signed by Judge J. Phil Gilbert on 9/7/11. (bkl)

UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
ROBERT DARNELL, Individually, and as
Representative of Deceased, WILLIAM
DARNELL,
Plaintiff,

Case No. 11-cv-449-JPG

v.
HOELSCHER INC., a corporation,
Defendant/Third-Party Plaintiff,
v.
WRC FARMS, LLC, and WRC
THOROUGHBREDS, INC.,
Third-Party Defendants.
MEMORANDUM AND ORDER
This matter comes before the Court on plaintiff Robert Darnell’s motion to strike
defendant Hoelscher Inc.’s expert Darrell Hoelscher (Doc. 32) and on Hoelscher Inc.’s motion to
strike Darnell’s experts Dr. Lane Hudgins and Mark Ezra (Doc. 34). The Court also considers
Darnell’s motion to strike Hoelscher Inc.’s expert Dale Gumz (Doc. 42) and the motions in
limine filed by both parties (Docs. 43-56 & 58-59).
I.

Background
This case arose after William Darnell, the plaintiff’s decedent, died while operating the

Hoelscher Model 1000 Hay Accumulator with serial number #04816 (“the Accumulator”), a
piece of farm equipment designed, manufactured and distributed by defendant Hoelscher. The
plaintiff believes that, since it left Hoelscher’s control, the Accumulator was defective because it
was unreasonably dangerous in a number of specific ways. The plaintiff believes that, as a result

of the defects, the Accumulator jammed, then moved without activation and injured the
decedent, ultimately causing his death.
The case arrived before this Court by a convoluted path. It began in state court and was
removed on the basis of original diversity jurisdiction. When the plaintiff added a non-diverse
defendant, the Court remanded the case to state court, but when that defendant settled with the
plaintiff, Hoelscher Inc. again removed the case. At that point, the matter had been set for trial
in state court three months later and a hearing date had been set to address expert witness issues.
After the second removal, this Court did all it could to expedite the resolution of this matter in
accordance with the plaintiff’s desire for a speedy trial. In fact, it ordered the parties to contact
the magistrate judge assigned to this case for a status conference to facilitate the expeditious
disposition of this case.
The parties did so, but neither mentioned unresolved issues regarding opinion witnesses
or asked for briefing deadlines on motions to strike such witnesses. Instead, they waited less
than a month before trial to file the pending motions. This kind of gamesmanship is
unacceptable. It renders more difficult the orderly resolution of the issues and causes the Court
to prioritize matters in this case before those in other cases that have been pending longer solely
so this case may proceed to trial on its scheduled date. In the future, the parties and counsel
involved in this case would be well-advised to alert the Court in a timely manner to issues it
expects to arise, especially when the Court instructs the parties to work with the Court to
facilitate the expeditious disposition of cases. However, because both parties engaged in this
conduct and because resolution of the pending matters is necessary for the trial to proceed, the
Court turns now to each motion in turn.

2

II.

Darnell’s Motion to Strike (Doc. 32)
Darnell asks the Court to exclude the testimony of Hoelscher Inc.’s expert witness

Darrell Hoelscher, the owner of Hoelscher Inc. and one knowledgeable about the testing,
manufacturing, quality control, marketing, advertizing and warnings related to the Accumulator,
because Hoelscher did not provide an expert report as required by Federal Rule of Civil
Procedure 26(a). It is clear that Hoelscher was identified as a witness in June 2009 and as an
opinion witness in March 2011, and that Darnell deposed him in November 2009.
Darnell complains that he has not been allowed to redepose Hoelscher since his
disclosure as an opinion witness. This matter should have been raised in a discovery motion
earlier in this case. It is too late to raise it now.
Darnell also complains that Hoelscher has not produced an expert report under Rule
26(a). However, Rule 26(a)(2)(B) only requires a written expert report “if the witness is one
retained or specially employed to provide expert testimony in the case or one whose duties as the
party’s employee regularly involve giving expert testimony.” Hoelscher falls into neither of
these categories, so he was not required to produce a report.
For these reasons, the Court will deny Darnell’s motion (Doc. 32).
III.

Hoelscher Inc.’s Motion to Strike (Doc. 34)
Hoelscher Inc. asks the Court to exclude the testimony of Darnell’s experts Dr. Lane

Hudgins and Mark Ezra on the grounds that they are inadmissible under Federal Rule of
Evidence 702 as well as Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993),
and its progeny. In Daubert, the Supreme Court held that Federal Rule of Evidence 702 did not
incorporate the “general acceptance” test set forth in Frye v. United States, 54 App. D.C. 46
(D.C. Cir. 1923). Instead, the Court held that Rule 702 required district judges to be gatekeepers
3

for proposed scientific evidence. Daubert, 509 U.S. at 589; see also General Elec. v. Joiner, 522
U.S. 136, 142 (1997). For scientific evidence to be admissible, the Court found, a district court
must find it both relevant and reliable; it must be scientific knowledge grounded “in the methods
and procedures of science” and consist of more than “subjective belief or unsupported
speculation.” Daubert, 509 U.S. at 589-90.
In 2000, Rule 702 was amended in response to Daubert. United States v. Conn, 297 F.3d
548, 555 (7th Cir. 2002). In its current form, it reads as follows:
If scientific, technical, or other specialized knowledge will assist the trier of fact
to understand the evidence or to determine a fact in issue, a witness qualified as
an expert by knowledge, skill, experience, training, or education, may testify
thereto in the form of an opinion or otherwise, if (1) the testimony is based upon
sufficient facts or data, (2) the testimony is the product of reliable principles and
methods, and (3) the witness has applied the principles and methods reliably to
the facts of the case.
Fed. R. Evid. 702. The Court has broad discretion in reaching its ultimate conclusion regarding
admissibility so long as it correctly applies the Daubert framework. United States v. Lupton,
620 F.3d 790, 798-99 (7th Cir. 2010).
A.

Dr. Lane Hudgins

Hoelscher Inc. asks the Court to exclude the testimony of Dr. Lane Hudgins, an
economist who is prepared to testify about the economic loss to the business of plaintiff’s
decedent William Darnell that his death caused, on the grounds that her opinion is based on
unreliable facts or data. Specifically, it complains that her opinion is based on the deposition
testimony of plaintiff Robert Darnell and not on financial records or tax documents of the
business. Hoelscher Inc. does not contest Dr. Hudgins’ qualifications to render an opinion and
does not argue that her testimony will not be helpful to the jury, that the principles and methods
she applied to the underlying data from Robert Darnell are unreliable or that those principles or
4

methods were applied unreliably to the underlying data.
Dr. Hudgins’ testimony is admissible. An expert may base her opinion on facts or data
“of a type reasonably relied upon by experts in the particular field in forming opinions or
inferences upon the subject” and “need not be admissible in evidence in order for the opinion or
inference to be admitted.” F.R.E. 702. Estimates of economic loss to a business by a
knowledgeable employee of the business are the kind of data that can be “reasonably relied on
by experts in the particular field in forming opinions or inferences upon on the subject.” F.R.E.
703. The accuracy of the underlying data goes to the weight of the opinion evidence, not its
admissibility, and can be challenged on cross examination of Robert Darnell and Dr. Hudgins.
Therefore, the Court will not exclude Dr. Hudgins’ testimony.
B.

Mark Ezra

Hoelscher Inc. asks the Court to exclude the testimony of Mark Ezra, an engineer who is
prepared to opine that the Accumulator was in a dangerous and unsafe condition because (1) it
did not have a spring system instead of a hydraulic system, (2) it did not have an independent
shut-off valve and (3) it had no warnings about when the push-over arm was descending. Again,
Hoelscher Inc. does not challenge Ezra’s qualifications to give opinion evidence or the
helpfulness of his evidence to a jury.
Hoelscher Inc. first points to Ezra’s admission that he did not have enough information to
reconstruct the accident to argue that his opinion about how the accident occurred lacked
foundation and was therefore unreliable. Ezra actually testified that, although he did not know
exactly what William Darnell was doing when he was inside the Accumulator such that he could
reconstruct the scene, based on his observation of the functioning of the Accumulator and his
knowledge of engineering principles, it was physically impossible for William Darnell to get
5

inside its perimeter while it was running unless it was jammed, and based on the position in
which his body was found and the working status of the Accumulator when his body was found,
William Darnell’s death was cause by the clearing of a jam in the Accumulator while he was
within its perimeter. This conclusion is the product of reliable engineering principles and
methods applied reliably to the eyewitness testimony of the person who found William Darnell’s
body. Ezra’s opinion is admissible as to this matter.
Hoelscher Inc. also faults Ezra for not performing any testing on a spring-loaded
alternate design and for failing to establish the feasibility of such an alternate design. This
argument is misguided, for Hoelscher Inc. used to use a spring-loaded system in its Accumulator
prior to using its hydraulic system and, indeed, obtained a patent on such a system. Clearly, that
type of system was feasible in light of the fact that Hoelscher used it in the past and needed no
further testing in light of that use.
Similarly, Hoelscher Inc. faults Ezra for not performing any calculations or drawings for
an alternative design that had an independent shut-off valve on the Accumulator. This argument
is completely disingenuous. In June 2011, Ezra modified an Accumulator with the suggested
modification, produced a “Supplemental Rule 213(f) Disclosure” and provided Hoelscher Inc.
with a videotape of the modified Accumulator in action. There is no need for calculations and
drawings when Ezra constructed, used and tested the alternate design. Hoelscher Inc. believes
this supplemental report is insufficient because it was produced with a caption erroneously
indicating it was pursuant to a state court rule and filed in the state court case, which had already
been removed to federal court. However, the bottom line is that Hoelscher Inc. received the
report in a timely manner, the plaintiff was not required by federal rules to file it in federal court,
and the captioning error and superfluous filing in state court are harmless.
6

Hoelscher Inc. argues that this case is governed by Bourelle v. Crown Equipment Corp.,
220 F.3d 532 (7th Cir. 2000). In that case, the Court of Appeals affirmed a district court
decision excluding opinion testimony from a witness who had not tested or proved feasible an
alternate design, made any drawings or studies of the alternate design and was unfamiliar with
the product in issue on the grounds that the witness’s opinion was a subjective belief and was
unsupported speculation. Id. at 535. Here, Ezra had studied the spring-loaded design as
described in Hoelscher Inc.’s patent application and had actually constructed, used and tested the
shut-off valve alternate design. Bourelle is therefore distinguishable from this case.
Finally, Hoelscher Inc. asks the Court to exclude Ezra’s opinion that the lack of a
warning about the danger posed when the push-over arm was descending rendered the
Accumulator unreasonably dangerous. Ezra testified that the first way to make the Accumulator
safe was to make the alternate design modifications, but if those were not made, to warn of the
danger. He did not propose a specific warning but contends that users of the Accumulator must
be warned of the danger that he believes, based on his engineering judgment, exists in the
Accumulator in its present condition. Bourelle does govern this issue, see id. at 538-39, and
renders Ezra’s opinion unreliable. His speculation that some undefined warning about the
dangers of the push-over arm descending would have rendered the Accumulator safe are not
founded on reliable principles or methods reliably applied to the facts of this case. Accordingly,
the Court will bar Ezra from testifying that the lack of a warning rendered the Accumulator
defective.
IV.

Motion to Strike (Doc. 42) and Motions in Limine (Docs. 43-56 & 58-59)
The Court has reviewed Darnell’s motion to strike expert Dale Gumz (Doc. 42) all the

motions in limine filed by Darnell and Hoelscher Inc. (Docs. 43-56 & 58-59). The Court will
7

deny all motions in limine and will explain its reasons on the record at the September 8, 2011,
final pretrial conference. This case has been pending in either state court or this Court for over
two years, and after removal from state court was set for trial by this Court on July 21, 2011, for
a trial date of September 12, 2011. All motions having been ruled upon, the Court assumes all
counsel are ready for trial beginning Monday, September 12, 2011.
V.

Conclusion
For the foregoing reasons, the Court:

•

DENIES Darnell’s motion to strike Darrell Hoelscher’s testimony (Doc. 32);

•

GRANTS in part and DENIES in part Hoelscher Inc.’s motion to strike Dr. Lane
Hudgins’ and Mark Ezra’s testimony. The motion is GRANTED to the extent it seeks to
exclude the opinion testimony of Mark Ezra that the lack of a warning rendered the
Accumulator defective. The motion is DENIED in all other respects (Doc. 34);

•

DENIES Darnell’s motion to strike Dale Gumz’s testimony (Doc. 42); and

•

DENIES the motions in limine filed by both parties (Docs. 43-56 & 58-59).

IT IS SO ORDERED.
DATED: September 7, 2011
s/ J. Phil Gilbert
J. PHIL GILBERT
DISTRICT JUDGE

8