Miller v. Illinois Tool Works Inc et al

Filing 133

ORDER granting in part and denying in part 95 ITW's Motion in Limine to Exclude the Testimony of Charles Powell as follows: the Court grants the motion as to any testimony by Mr. Powell regarding safety glasses and denies the motion as to any testimony by Mr. Powell regarding his manufacturing defect opinion and his design defect opinion; and granting 110 ITW's Motion in Limine to Exclude Reference to Any Alleged Defect in Charles Powell's Nailer (as more fully set out in the Order). Signed by Honorable Vicki Miles-LaGrange on 6/10/2011. (ks)

IN THE UNITED STATES DISTRICT COURT FOR THE
WESTERN DISTRICT OF OKLAHOMA
MICHAEL L. MILLER,
Plaintiff,
vs.
ILLINOIS TOOL WORKS, INC., and
PASLODE CORPORATION,
Defendants.

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Case No. CIV-09-644-M

ORDER
Before the Court is defendant Illinois Tool Works Inc.’s (“ITW”) Motion in Limine to
Exclude the Testimony of Charles Powell, filed April 29, 2011. On May 20, 2011, plaintiff filed
his response, and on May 27, 2011, ITW filed its reply. Also before the Court is ITW’s Motion in
Limine to Exclude Reference to Any Alleged Defect in Charles Powell’s Nailer, filed May 27, 2011.
On June 3, 2011, plaintiff filed his response, and on June 8, 2011, ITW filed its reply. An
evidentiary hearing was held on June 8, 2011, during which Mr. Powell, plaintiff’s expert, testified.
I.

Motion in Limine to Exclude the Testimony of Charles Powell
At the hearing, Mr. Powell set forth the following as his opinions in this case: (1) the subject

nailer has a manufacturing defect in that the spring in the lockout bar assembly was oversized and
causes the lockout bar assembly to jam; (2) the subject nailer has a design defect in that the design
of the nailer allows nails to be ejected in an uncontrolled fashion when only a few nails are left in
the nailer’s magazine and the lockout bar jams; and (3) safety glasses would not have protected
plaintiff’s eye if he had been wearing them. ITW has moved to exclude the testimony of Mr. Powell
as to all of the above opinions. Specifically, ITW challenges the factual basis for Mr. Powell’s
manufacturing defect opinion, the qualifications of Mr. Powell to render the design defect opinion,

and the reliability of the principles and methodology underlying Mr. Powell’s design defect opinion,
and ITW asserts that there has been no evidence, no facts, and no testing introduced to support Mr.
Powell’s opinion regarding the protection afforded by safety glasses.
Federal Rule of Evidence 702 governs the admissibility of scientific or technical expert
testimony. It provides:
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.
In Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579 (1993), the Supreme Court held that
Rule 702 requires the trial court to “ensure that any and all scientific testimony or evidence admitted
is not only relevant, but reliable.” 509 U.S. at 589. In Kumho Tire Co. v. Carmichael, 526 U.S. 137,
141 (1999), the Supreme Court concluded that “Daubert’s general holding – setting forth the trial
judge’s general ‘gatekeeping’ obligation – applies not only to testimony based on ‘scientific’
knowledge, but also to testimony based on ‘technical’ and ‘other specialized’ knowledge.” 526 U.S.
at 141. With respect to the all-important reliability determination, the Supreme Court further
concluded that “a trial court may consider one or more of the more specific factors that Daubert
mentioned when doing so will help determine that testimony’s reliability. But, as the Court stated
in Daubert, the test of reliability is ‘flexible,’ and Daubert’s list of specific factors neither
necessarily nor exclusively applies to all experts or in every case.” Id. (emphasis in original).

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Several factors may be considered by the trial court in assessing the reliability of proposed
expert testimony. The “Daubert factors” that may be considered are: (1) whether the theory or
technique employed by the expert in formulating his expert opinion can be or has been tested; (2)
whether the theory or technique has been subjected to peer review and publication; (3) whether, with
respect to a particular technique, there is a high known or potential rate of error; (4) whether
standards control operation of the technique; and (5) whether the theory or technique is generally
accepted within the relevant professional community. Id. at 149-50 (quoting Daubert, 509 U.S. at
592-94). In Kumho Tire, the Court recognized that in some cases “the relevant reliability concerns
may focus upon personal knowledge or experience,” rather than scientific foundations. Id. at 150.
In such cases, the trial court may focus on alternative factors that are better-suited to the specific
type of expertise at issue. Id. at 150-52. “The objective of [the gatekeeping] requirement is to
ensure the reliability and relevancy of expert testimony. It is to make certain that an expert, whether
basing testimony upon professional studies or personal experience, employs in the courtroom the
same level of intellectual rigor that characterizes the practice of an expert in the relevant field.” Id.
at 152. “[T]he trial judge [has] considerable leeway in deciding in a particular case how to go about
determining whether particular expert testimony is reliable.” Id.
Further, when expert testimony is challenged under Daubert, the burden of proof regarding
admissibility rests with the party seeking to present the testimony. Truck Ins. Exch. v. Magnetek,
Inc., 360 F.3d 1206, 1210 (10th Cir. 2004). “The plaintiff need not prove that the expert is
undisputably correct or that the expert’s theory is ‘generally accepted’ in the scientific community.
Instead, the plaintiff must show that the method employed by the expert in reaching the conclusion

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is scientifically sound and that the opinion is based on facts which sufficiently satisfy Rule 702’s
reliability requirements.” Id. (quoting Mitchell v. Gencorp Inc., 165 F.3d 778, 781 (10th Cir. 1999)).
A.

Manufacturing defect opinion

ITW contends that Mr. Powell’s manufacturing defect opinion is inadmissible because it
lacks any factual basis. Specifically, ITW contends that Mr. Powell is merely assuming, without any
factual basis, that the oversized spring is the original spring with which the nailer was manufactured
when the evidence clearly indicates that it was not. While Mr. Powell did testify that he does not
know if the oversized spring is the original spring with which the nailer was manufactured, he also
testified that based upon his microscopic analysis of the lockout bar assembly and spring, the spring
had been in the nailer for a long period of time. Having carefully reviewed the parties’ submissions,
and having heard the testimony of Mr. Powell, the Court finds that Mr. Powell’s manufacturing
defect opinion is based upon sufficient facts. The Court further finds that any shortcomings in the
factual basis for Mr. Powell’s opinion go to the weight, and not the admissibility, of Mr. Powell’s
testimony regarding his manufacturing defect opinion and that during cross-examination, ITW may
thoroughly question Mr. Powell regarding all of the alleged shortcomings and errors it contends
exist in Mr. Powell’s manufacturing defect opinion. Accordingly, the Court finds that any testimony
by Mr. Powell regarding his manufacturing defect opinion should not be excluded.
B.

Design defect opinion

ITW contends that Mr. Powell has no specialized training or experience that qualifies him
to provide expert testimony on whether the design of the nailer at issue is defective. Having
reviewed the parties’ submissions, and having heard the testimony of Mr. Powell, the Court finds
that Mr. Powell is qualified to testify regarding whether the design of the nailer at issue is defective.

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Mr. Powell is a registered professional engineer and has over thirty years of experience as a failure
analyst. Additionally, Mr. Powell has previously worked in his capacity as a failure analyst in other
nailer cases.
ITW also contends that the principles and methodology behind Mr. Powell’s design defect
opinion are not reliable. Having carefully reviewed the parties’ submissions, and having heard the
testimony of Mr. Powell, the Court finds that Mr. Powell’s design defect opinion is the product of
reliable principles and methods and that Mr. Powell applied these principles and methods reliably
to the facts and/or data in this case. Mr. Powell visually inspected, disassembled, measured,
photographed, and examined the subject nailer and its component parts. Mr. Powell also reviewed
the nailer manuals and compared the technical drawings supplied by ITW to the subject nailer. The
Court would further note that defendant’s expert, Dr. Robert S. Cargill, II, utilized these same
principles and methodology in rendering his opinions. While ITW disagrees with the ultimate
conclusions Mr. Powell reached as a result of his investigation and alleges various shortcomings
of in Mr. Powell’s design defect opinion, the Court finds said shortcomings go to the weight, and
not the admissibility, of Mr. Powell’s testimony regarding his design defect opinion and that during
cross-examination, ITW may thoroughly question Mr. Powell regarding all of the alleged
shortcomings and errors it contends exist in Mr. Powell’s design defect opinion. Accordingly, the
Court finds that any testimony by Mr. Powell regarding his design defect opinion should not be
excluded.
C.

Opinion regarding safety glasses

At the hearing, Mr. Powell stated that he would be rendering an opinion regarding whether
safety glasses would have protected plaintiff’s eye from injury. Other than this one statement, no

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other testimony or other evidence was introduced during the hearing regarding this opinion, the
factual basis for this opinion, the principles or methodology Mr. Powell utilized in forming his
opinion, or the qualifications of Mr. Powell to render this opinion. Additionally, in none of his three
expert reports issued in this case does Mr. Powell set forth any opinion regarding whether safety
glasses would have protected plaintiff’s eye from injury. Based upon this lack of evidence, the
Court finds that plaintiff has not satisfied his burden of proving the admissibility of Mr. Powell’s
opinion regarding safety glasses. Accordingly, the Court finds that any testimony by Mr. Powell
regarding safety glasses should be excluded.
II.

Motion in Limine to Exclude Reference to Any Alleged Defect in Charles Powell’s Nailer
ITW moves this Court to preclude Mr. Powell from testifying regarding an alleged defect

in a Paslode impulse cordless framing nailer he purchased on eBay (“Powell exemplar nailer”).
Because the alleged defect in the Powell exemplar nailer is different from the alleged defect in the
subject nailer, ITW contends that any testimony regarding the alleged defect in the Powell exemplar
nailer will not assist the jury in determining any fact in issue, would be unfairly prejudicial to ITW,
and would be misleading and confusing to the jury and, therefore, should be excluded. In his
response, plaintiff asserts that Mr. Powell has not conceded that the alleged defects in the two nailers
are different. Plaintiff also asserts that the video of the testing Mr. Powell performed on the Powell
exemplar nailer is relevant and admissible.
As a general rule, the proponent seeking to admit out-of-court
experiments into evidence must demonstrate a similarity of
circumstances and conditions between the tests and the subject of
litigation. The purpose of this rule is to prevent confusion of the jury.
A recognized exception to this rule exists when the experiment
merely illustrates principles used to form an expert opinion. In such
instances, strict adherence to the facts is not required.

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Gilbert v. Cosco, Inc., 989 F.2d 399, 402 (10th Cir. 1993) (internal quotations and citations omitted).
Contrary to plaintiff’s assertion, Mr. Powell twice testified during the hearing that the Powell
exemplar nailer had a different defect than the subject nailer in this case. Mr. Powell further
testified that the lockout bar in the Powell exemplar nailer was in a different condition than that of
the lockout bar in the subject nailer. Additionally, based upon Mr. Powell’s testimony, the Court
finds that the test firing of the Powell exemplar nailer was not for the purpose of illustrating the
principles used to form Mr. Powell’s opinion but was for the purpose of demonstrating the alleged
defect in the Powell exemplar nailer.
Based upon the above, the Court finds that any testimony or evidence regarding the Powell
exemplar nailer should be excluded. Specifically, the Court finds that because the alleged defects
in the two nailers are different, any evidence regarding the Powell exemplar nailer is not relevant,
will not assist the jury in determining any fact in issue, would be unfairly prejudicial to ITW, and
would be misleading and confusing to the jury.
III.

Conclusion
Accordingly, for the reasons set forth above, the Court GRANTS IN PART and DENIES IN

PART ITW’s Motion in Limine to Exclude the Testimony of Charles Powell [docket no. 95] as
follows: the Court GRANTS the motion as to any testimony by Mr. Powell regarding safety glasses
and DENIES the motion as to any testimony by Mr. Powell regarding his manufacturing defect

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opinion and his design defect opinion. Further, the Court GRANTS ITW’s Motion in Limine to
Exclude Reference to Any Alleged Defect in Charles Powell’s Nailer [docket no. 110].
IT IS SO ORDERED this 10th day of June, 2011.

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