Underhill et al v. Coleman Company

Filing 107

ORDER granting in part and denying in part 100 MOTION to Strike or Otherwise Exclude Plaintiffs' Rebuttal Reports Containing New Case Theories and Opinions on Coleman's Experts' Qualifications. Signed by Magistrate Judge Donald G. Wilkerson on 9/26/2013. (jdp)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
PAULA UNDERHILL ET AL.,
Plaintiffs,
v.
THE COLEMAN COMPANY,
Defendant.

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Case No. 3:12-cv-129-JPG-DGW

ORDER
WILKERSON, Magistrate Judge:
Now pending before the Court is the Motion to Strike or Otherwise Exclude Plaintiffs'
Rebuttal Reports Containing New Case Theories and Opinions on Coleman's Experts'
Qualifications (Doc. 100) filed by Defendant, The Coleman Company, on August 30, 2013. On
August 20, 2013, this Court held an in-person discovery dispute hearing and directed the parties to
brief the issue of whether Plaintiffs’ experts were proper rebuttal witnesses. For the reasons
stated below, the Motion is DENIED IN PART and GRANTED IN PART.
BACKGROUND
The discovery dispute at issue stems from Defendant’s objections to Plaintiffs’ rebuttal
witnesses, Dr. Gary Hutter and Dr. Felix Lee, in a wrongful death suit involving a defective
heater. Plaintiffs first submitted the reports of several expert witnesses, including Dr. Hutter, on
November 15, 2012. Dr. Hutter, a mechanical engineer involved in prior cases regarding carbon
monoxide poisoning and the heater at issue, opined that when the flow of fuel on the heater is
restricted, the heater can be used to warm small, enclosed spaces. However, restricted fuel flow
produces lethal levels of carbon monoxide. Dr. Hutter further opined that a properly located

thermocouple would act as a safety device to prevent the heater from producing lethal levels of
carbon monoxide.
After Plaintiffs disclosed their expert witnesses, Defendant moved this Court requesting to test
the heater. The Court allowed Defendant to ship the heater to Maryland for inspection and testing.
The Court ruled that Plaintiffs could observe and participate in the testing, if desired. The Court also
ruled that the results of the test would be available to both parties to use as they saw fit. Following
the initial testing, Defendant moved this Court to allow it to perform destructive testing on the heater;
the Court allowed Defendant to dismantle the heater. The Court specifically allowed Plaintiffs’
experts to attend and observe the testing. The Court again found that the results of the testing would
be available to both parties to use as they saw fit.
As a result of the testing, Plaintiffs filed the Second Supplemental Report of Gary Hutter on
May 15, 2013. The report reiterated Dr. Hutter’s opinion that the heater could produce lethal levels
of carbon monoxide while maintaining comfortable temperatures within an enclosed space. The
report further identified manufacturing defects—an improperly installed thermocouple and an
improperly adjusted set screw. On May 20, 2013, Plaintiffs sent Defendant supplemental responses
to previously submitted interrogatories and declared that they were making a manufacturing defect
claim; Defendant made no objections.
On June 1, 2013, Defendant disclosed Dr. Roby’s expert report. Dr. Roby opined that the
improper placement of the thermocouple caused the heater to fail to perform the important safety
function of shutting down once the temperature reached a certain level. In Dr. Roby’s opinion,
however, the defect was the result of alterations made by a third-party after the heater left Defendant’s
control. Plaintiffs took Dr. Roby’s deposition on June 18, 2013. Dr. Roby revealed that he reviewed
two documents Defendant provided that detailed the quality control procedures in place at the time the

heater was manufactured. Based on those documents, Dr. Roby opined that Defendant’s quality
control procedures would have discovered the manufacturing defects before the heater left
Defendant’s control. Dr. Roby testified that he was qualified to render such opinions because he was
an expert in quality control and quality assurance. On July 21, 2013, Plaintiffs submitted rebuttal
reports from Dr. Felix Lee, an expert in quality control and quality assurance, and Dr. Gary Hutter.
Dr. Lee opined that the quality control and assurance procedures in place at the time the heater was
manufactured were inadequate. Dr. Hutter opined that the manufacturing defects existed at the time
the heater was manufactured.

Discussion
Pursuant to Federal Rule of Civil Procedure 26(a)(2)(D), a party must disclose an expert
report if the evidence is intended solely to contradict or rebut evidence on the same subject matter
identified by another party under Rule 26(a)(2)(B). The proper function of rebuttal evidence is
"to contradict, impeach or defuse the impact of the evidence offered by an adverse party."
United States v. Grintjes, 237 F.3d 876, 879 (7th Cir. 2001).
Defendant’s contention that Plaintiffs, through their rebuttal witnesses, seek to introduce new
opinions and theories in contrivance of the Federal Rules of Civil Procedure is without merit.
Defendant’s argue that the rebuttal reports of Dr. Lee and Dr. Hutter contain new opinions and,
therefore, should have been disclosed previously as part of Plaintiff’s prima facie case.

Plaintiffs do not seek to introduce new opinions and theories through the reports of Dr.
Lee and Dr. Hutter, but, rather, they merely seek to rebut Dr. Roby’s opinion. Dr. Roby opined
that Defendant’s quality control procedures were adequate to prevent an improperly
manufactured heater from leaving the manufacturing plant and that any defects were the result of
a post-sale alteration.

In response, Plaintiffs offered Dr. Lee’s expert opinion. Dr. Lee, an

expert in quality control and assurance, opined that the quality control and assurance procedures
in place at the time the heater was manufactured were inadequate. This directly rebutted Dr.
Roby’s claim that Defendant’s quality control procedures were adequate to prevent an
improperly manufactured heater from leaving the manufacturing plant. Plaintiffs also offered
Dr. Hutter’s expert opinion. Dr. Hutter opined that any defects in the heater existed at the time
of manufacturing and were not the result of a post-sale alteration. This directly rebutted Dr.
Roby’s opinion that the defects in the heater were a result of post-sale alterations. As such,
Plaintiffs experts were proper rebuttal witnesses.
Defendant also contends that Dr. Lee and Dr. Hutter improperly criticized and commented
on Dr. Roby’s qualifications as an expert witness. In his rebuttal report, Dr. Hutter stated, in
pertinent part:
Dr. Roby is not qualified to render an expert opinion regarding the sufficiency of
Coleman's quality control and quality assurance procedures based upon a
reasonable degree of quality control engineering standards. Quality control and
quality assurance is a unique and independent discipline. Within the general
field of engineering, the specialized field of study of quality control and
assurance generally falls within industrial engineering or manufacturing
engineering-not mechanical engineering. However, its heavy reliance on
statistical data and mathematics, requires a person with training and experience
in that area. Nothing in Dr. Roby's education or experience suggests that he
has the qualifications to be qualified to render "expert" opinions in this
specialized area.
In his rebuttal report, Dr. Lee stated, in pertinent part:
Dr. Roby is not qualified to provide any opinion regarding Coleman's quality
control/quality assurance procedures/program and is not qualified to provide
the specific opinion that Coleman's quality control/quality assurance
procedures/program would have detected the defects in the set screw position
and thermocouple location present on the subject 5045 heater.
These opinions attacking Dr. Roby’s qualifications are not proper expert witness testimony.

Specifically, the first paragraph of the section entitled “Coleman’s Quality Control/Assurance
Procedures do not support his opinion” in Dr. Hutter’s report on page 3 is STRICKEN. Further,
the section entitled “Dr. Roby’s qualifications to render opinions on quality control or quality
assurance” in Dr. Lee’s report on pages 1-2 is STRICKEN.
CONCLUSION
Based on the foregoing, the Court finds that Plaintiffs’ experts were proper rebuttal
witnesses. Further, the portions of the rebuttal reports that attack Dr. Roby’s qualifications listed
above are STRICKEN. Accordingly, Defendants’ motion (Doc. 100) is DENIED IN PART and
GRANTED IN PART.
IT IS SO ORDERED.
DATED: September 26, 2013
DONALD G. WILKERSON
United States Magistrate Judge