Underhill et al v. Coleman Company

Filing 129

MEMORANDUM AND ORDER, the Court DENIES Colemans appeal (Doc. 109 ) andAFFIRMS Magistrate Judge Wilkersons order dated September 26, 2013 (Doc. 107 ). Signed by Judge J. Phil Gilbert on 11/18/2013. (jdh)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
PAULA UNDERHILL, Individually and as
Special Administrator of the Estate of Galen
Underhill, and SEAN UNDERHILL,
Plaintiffs,
vs.

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

COLEMAN COMPANY, INC.,
Defendant.

MEMORANDUM AND ORDER
This matter comes before the Court on defendant Coleman Company, Inc.’s (“Coleman”)
appeal (Doc. 109) of the portion of Magistrate Judge Donald G. Wilkerson’s September 26, 2013
order (Doc. 107) that denied Coleman’s request to strike plaintiff Paula Underhill’s and Sean
Underhill’s (collectively “Plaintiffs”) rebuttal experts. Plaintiffs filed their response (Doc. 111).
For the following reasons, the Court affirms Magistrate Judge Wilkerson’s order.
1. Background
On the night of April 9, 2010, Galen Underhill and his son, Sean Underhill, went
camping in a pop-up camper in Alhambra, Illinois. To keep warm they used a PowerMate
Model 5045 propane radiant heater manufactured by Coleman. During the night, the heater
released deadly amounts of carbon monoxide. As a result of their exposure to carbon monoxide,
Galen Underhill died and Sean Underhill suffered serious injury. On January 10, 2012, plaintiffs
filed their six-count complaint against Coleman in the Circuit Court for the Third Judicial
Circuit, Madison County, Illinois. Thereafter, Coleman removed the case to the Southern
District of Illinois based on diversity of citizenship pursuant to 28 U.S.C. § 1332.

Plaintiffs retained Dr. Gary Hutter, a mechanical engineer, as an expert witness in this
case. Dr. Hutter had expressed his opinion in other cases involving carbon monoxide poisoning
resulting from the PowerMate Model 5045 propane heater. Dr. Hutter has submitted three
reports and a rebuttal report in this case. In Dr. Hutter’s first and supplemental reports, dated
November 9 and 12, 2012, he explained that the heater can be used to heat small spaces when the
flow of fuel to the heater is restricted. The restricted fuel flow, however, can release lethal
amounts of carbon monoxide. Dr. Hutter did not express an opinion that would support a
manufacturing defect theory in his first two reports. Due to previous litigation involving the
PowerMate Model 5045, Plaintiffs “understand the operation of these heaters, and, unlike other
cases where the mechanics of the defect and/or injury may not be known, testing may not be
necessary in this case.” Doc. 64, p. 2.
On January 28 and 29, 2013, Coleman’s expert, Dr. Richard Roby, conducted testing of
the heater and propane cylinder at a facility in Baltimore, Maryland. Plaintiffs and their experts
observed that testing. As a result of the testing, Dr. Roby suspected that the heater and/or
propane tank had been altered by a third party after they left Coleman’s control. Magistrate
Judge Wilkerson authorized Coleman to perform destructive testing on the heater and propane
cylinder which took place on April 30 and May 1, 2013. Again, Plaintiffs and their experts
observed the testing. Magistrate Judge Wilkerson found that the results of both the nondestructive and destructive testing would be available to both parties to use as they saw fit.
After the additional testing, Dr. Hutter completed a Second Supplemental Report on May
14, 2013, wherein he reasserted the opinion contained in his first two reports. Additionally, Dr.
Hutter identified potential manufacturing defects including an improperly installed thermocouple
and an improperly adjusted set screw. Specifically, Dr. Hutter explained that the testing

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“revealed that the location of the thermocouple on the subject Underhill heater in relation to the
burner bowl was not in accordance with the manufacturer’s specifications.” Doc. 100-6, p. 3.
He further explained that the “location of the thermocouple on the subject 5045 resulted in a
failure of the thermocouple to detect a reduced thermal output condition which emitted a dangers
quantity of CO and allowed the subject heater to operate at substantially reduced BTU levels that
generated the carbon monoxide that killed Galen Underhill and injured Sean Underhill.” Doc.
100-6, p. 3-4. He opined that the regulator on the heater is “defective as manufactured,
assembled, or installed, and said defect is the cause of the diminished thermal BTU output of the
subject heater and of the elevated CO levels.” Doc. 100-6, p. 4-5. Plaintiffs filed Dr. Hutter’s
Second Supplemental Report with the Court on May 15, 2013, and sent supplemental
interrogatory responses to Coleman indicating Plaintiffs were making a manufacturing defect
claim. Coleman made no objection at that time.
Thereafter, on June 1, 2013, Coleman disclosed Dr. Roby’s expert opinion. Dr. Roby
opined that the heater failed to shut down because of the improper placement of the
thermocouple, and this manufacturing defect was the result of a third-party alteration after the
heater left Coleman’s control. It was also Dr. Roby’s opinion that Coleman’s quality assurance
and quality control procedures were sufficient to prevent the heater from leaving Coleman’s
control with such a defect. After deposing Dr. Roby, on July 21, 2013, Plaintiffs submitted the
rebuttal reports of Dr. Hutter and Dr. Felix Lee, a quality control expert.
Coleman filed a motion to strike the rebuttal reports of Dr. Hutter and Dr. Lee arguing
that the reports contained new opinions and a new case theory. Specifically, Coleman argued
that Plaintiffs’ previous expert reports only alleged the heater was defective in design in that
restricted fuel flow caused the release of deadly amounts of carbon monoxide. Coleman

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acknowledges that Dr. Hutter referenced a manufacturing defect in his Second Supplemental
Report, but Coleman describes this as merely “lip service” and “hollow words.” Doc. 100, p. 6.
As such, Coleman maintains that Dr. Hutter did not specifically identify a manufacturing defect
until his rebuttal report, and the Court must strike the rebuttal report because it sets forth a
manufacturing defect opinion that was not asserted in the initial or supplemental reports contrary
to law.
Magistrate Judge Wilkerson disagreed with Coleman finding that the expert reports were
proper rebuttal opinion because they directly rebutted Dr. Roby’s opinion. Specifically, Dr. Lee
opined that Coleman’s quality control and assurance procedures were inadequate, directly
rebutting Dr. Roby’s assertion that Coleman’s quality control procedures were adequate to
prevent a defective heater from leaving Coleman’s plant. Dr. Hutter opined that the defect
existed before the heater left Coleman’s plant, directly rebutting Dr. Roby’s assertion that the
heater was altered after it left the plant. Accordingly, Magistrate Judge Wilkerson denied
Coleman’s motion to the extent it sought to strike the experts’ report for introducing a new case
theory.
Coleman filed the instant appeal of Magistrate Judge Wilkerson’s order. Coleman argues
that Magistrate Judge Wilkerson made a significant mistake in allowing Plaintiffs to submit
rebuttal reports containing new theories. Coleman asks this Court to set aside Magistrate Judge
Wilkerson’s order and strike Dr. Hutter’s and Dr. Lee’s rebuttal reports. The Court will now
consider the merits of Coleman’s objection.
2. Analysis
A district court reviewing a magistrate judge’s decision on nondispositive issues should
modify or set aside that decision if it is clearly erroneous or contrary to law. See Fed. R. Civ. P.

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72(a); 28 U.S.C. § 636(b)(1)(A). Accordingly, the Court will affirm Magistrate Judge
Wilkerson’s decision unless his factual findings are clearly erroneous or his legal conclusions are
contrary to law. Id.
Federal Rule of Civil Procedure 26(a) requires that an expert witness report must contain
“a complete statement of all opinions and the basis and reasons for them.” A party that fails to
provide information required by Rule 26(a) is not permitted to use that information “unless the
failure was substantially justified or is harmless.” Fed. R. Civ. P. 37(c)(1).
Coleman’s assertion that Plaintiffs’ experts’ rebuttal reports introduce new case theories
rests on the idea that Dr. Hutter’s Second Supplemental Report did not sufficiently identify a
manufacturing defect pursuant to Federal Rule of Civil Procedure 26. Coleman says these words
merely pay “lip service” to a manufacturing defect claim and are “hollow.” However, Coleman
cites no authority to back up its assertion that Dr. Hutter’s Second Supplemental Report was
insufficient in this respect. Rather, it appears that Dr. Hutter formed an additional theory after
participating in Coleman’s testing and provided a supplemental report to disclose that theory.
This was consistent with Magistrate Judge Wilkerson’s finding that the parties could use the
additional testing as they saw fit, and Coleman did not object to that finding.
Coleman cites to Braun v. Lorillard, Inc. for support; however, that case is
distinguishable from the present set of facts. 84 F.3d 230 (7th Cir. 1996). In Braun, the
plaintiffs did not inform defendants they planned to call a witness until ten days before trial and
failed to list the witness in the pretrial order. Id. at 236. The district court judge decided
plaintiffs could not add the witness for their case in chief. Id. The plaintiffs then tried to
introduce the same witness as a rebuttal witness, and the district court did not allow it. Id. at
237. The Seventh Circuit found that the district court judge did not abuse her discretion because

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“[t]he plaintiff who knows that the defendant means to contest an issue that is germane to the
prima facie case (as distinct from an affirmative defense) must put in his evidence on the issue as
part of his case in chief. . . . Otherwise the plaintiff could reverse the order of proof, in effect
requiring the defendants to put in their evidence before the plaintiff put in his.” Id.
Here, unlike Braun, Plaintiffs disclosed Dr. Hutter’s expert report containing his
alternative manufacturing defect theory and supplemented their interrogatory responses to
include this new theory as part of their case in chief prior to the production of Dr. Roby’s report.
Accordingly, this is not a case like Braun where the plaintiffs plan to reverse the order of proof
requiring Coleman to put on its evidence first.
Dr. Hutter’s and Dr. Lee’s rebuttal reports, including their elaboration on opinions
included in Dr. Hutter’s Second Supplemental Report, were appropriate. “The proper function of
rebuttal evidence is to contradict impeach or defuse the impact of the evidence offered by an
adverse party.” Peals v. Terre Haute Police Dept., 535 F.3d 621, 630 (7th Cir. 2008) (quoting
United States v. Grintjes, 237 F.3d 876, 879 (7th Cir. 2001)). Rebuttal evidence “offered only as
additional support to an argument made in a case in chief, if not offered ‘to contradict, impeach
or defuse the impact of the evidence offered by an adverse party, is improper.” Peals, 535 F.3d
at 630. Here, Dr. Hutter’s and Dr. Lee’s reports were offered to contradict, impeach, and/or
diffuse Dr. Roby’s opinions that any manufacturing defect occurred after the heater left
Coleman’s control and that Coleman’s quality assurance procedures would have caught the
defect in question before the heater left Coleman’s facility. Accordingly, these rebuttal reports
were not offered only as additional support to the opinions expressed in Dr. Hutter’s Second
Supplemental Report.

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The Court concludes that Magistrate Judge Wilkerson’s factual findings are not clearly
erroneous and his legal conclusions are not contrary to law.
3. Conclusion
For the foregoing reasons, the Court DENIES Coleman’s appeal (Doc. 109) and
AFFIRMS Magistrate Judge Wilkerson’s order dated September 26, 2013 (Doc. 107).

IT IS SO ORDERED.
DATED: November 18, 2013
s/ J. Phil Gilbert
J. PHIL GILBERT
DISTRICT JUDGE

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