Hackl et al v. Icon Health & Fitness Inc et al

Filing 83

ORDER signed by Judge J P Stadtmueller on 6/8/10 denying 55 defendants' Motion to Exclude the expert testimony of Dr. Berry, and denying 63 plaintiffs' Motion for Summary Judgment on liability. See Order. (cc: all counsel) (nm)

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF WISCONSIN
T H E R E S E A. HACKL and RICHARD HACKL, P la in t iffs , and U N IT E D HEALTHCARE OF W IS C O N S I N and B L U E CROSS BLUE SHIELD OF W IS C O N S IN , In v o lu n t a r y Plaintiffs, v. IC O N HEALTH & FITNESS, INC., S E A R S ROEBUCK & COMPANY, and L E X IN G T O N INSURANCE COMPANY, D e fe n d a n ts . C a s e No. 08-CV-871

ORDER +
P la in tiff Therese A. Hackl ("Mrs. Hackl") was using a piece of home exercise e q u ip m e n t when one of the pedal springs broke and she fell, injuring her knee. Mrs. H a c k l underwent multiple arthroscopic surgeries and claims long-term effects from h e r injury. Mrs. Hackl and her husband filed this product liabilities action against d e fe n d a n t Icon Health & Fitness, Inc. ("Icon"), the company which manufactured the fitn e s s equipment, defendant Sears Roebuck & Company ("Sears"), which sold them th e equipment, and defendant Lexington Insurance Company, the company which is s u e d a liability insurance policy implicated by the suit. The Hackls allege strict lia b ility and negligence.

T h e parties each filed a motion that remains pending before the court. The d e fe n d a n ts filed a motion to exclude expert testimony from Mrs. Hackl's treating o rth o p e d ic surgeon predicting that she will need a knee replacement at some point in the future. The defendants attack the reliability of the testimony and urge the c o u rt to exclude it as unsupported speculation. The Hackls filed their own unrelated m o tio n for summary judgment. They ask the court to enter judgment in their favor o n the issue of liability and to declare that the defendants are liable for all injuries a n d damages resulting from the pedal spring failure. For the reasons stated below, th e court will deny both the motion to exclude expert testimony and the motion for s u m m a ry judgment on liability. B AC K G R O U N D T h e Hackls purchased a ProForm 650 Cardio Cross Trainer ("Proform 650") f r o m a Sears store on December 21, 2002. The ProForm 650 is an elliptical

e xe rc is e machine 1 designed, sold and distributed by Icon and offered for sale by S e a r s in its department stores. After purchasing the product at a Sears store in G re e n d a le , W is c o n s in , Mr. Hackl took the machine home and assembled it a c c o rd in g to the included instructions. The Hackl family used the ProForm 650 w ith o u t incident for the next three years. However, on June 7, 2006, Mrs. Hackl was

An elliptical exercise machine is a piece of stationary exercise equipment used to simulate walking or running without causing pressure to the joints. Dictionary.com, http://dictionary.reference.com/browse/elliptical+trainer (last visited June 8, 2010).

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e xe rc is in g when the left side "pedal spring" broke and she fell and sustained a knee in ju r y . In support of her claims of injury, Mrs. Hackl obtained the expert testimony of D r. Jonathon Berry, her treating orthopedic surgeon. Dr. Berry performed three a rth ro s c o p ic surgeries on Mrs. Hackl between July 2006 and February 2009. He a ls o completed three letter reports for this litigation, which constitute his Rule 2 6 (a )(2 )(B ) written expert report. In his second letter report, dated November 14, 2 0 0 7 , Dr. Berry predicted that Mrs. Hackl will likely need a total knee replacement in the future, stating: ...I would have to say that it is more probable than not that she will need a n arthroscopy, eventually I believe, it is more probable than not that s h e will need a total knee arthroplasty. These will likely be years down th e road. H o w e v e r , Dr. Berry did not repeat this contention in his third letter report, dated A p ril 28, 2009. Instead, his update on her condition reads in relevant part: A s much as I would anticipate that surgical treatment for this injury is c o m p le te , and I can in no way guarantee that there will be no need for a n y further either surgical treatment or physical therapy. At this point, s h e is doing well and as long as she does the home physical therapy o r home therapy, she will continue to have minimal symptoms. T h e s e statements form the basis for the defendants' motion to exclude expert te s tim o n y. They contest Dr. Berry's conclusion regarding Mrs. Hackl's future need for a knee replacement and seek to have that particular testimony excluded for a la c k of reliability under Federal Rule of Evidence 702.

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In addition to their medical expert testimony, the Hackls also procured expert te s tim o n y regarding liability. The Hackls obtained a report from Thomas Proft, P.E., re g a rd in g the cause of the pedal spring failure in the Hackls' ProForm 650 e q u ip m e n t. Mr. Proft concluded that the failure was attributable to a defective design a n d /o r material because there was no indication that the machine was used for an u n in te n d e d purpose. The Hackls now offer Mr. Proft's conclusions in support of their m o tio n for summary judgment on liability. AN AL Y S IS I. M o tio n to Exclude Expert Testimony T h e admissibility of expert testimony is governed by Federal Rule of Evidence 7 0 2 and the decision of the United States Supreme Court in Daubert v. Merrell Dow P h a r m a c e u tic a ls , Inc., 509 U.S. 579 (1993). Rule 702 permits a witness qualified a s an expert to provide opinion testimony if that testimony is: 1) based upon s u ffic ie n t facts or data; 2) the product of reliable principles and methods; and 3) p ro vid e d by a witness who applied the principles and methods reliably to the facts o f the case. Fed. R. Evid. 702. The court is the "gatekeeper" for such expert te s tim o n y and will only permit the admission of expert witness testimony that is both re le va n t and reliable. Daubert, 509 U.S. at 589. In fulfilling this role and evaluating e xp e rt witness testimony, the court uses a three-step analysis. Ervin v. Johnson & J o h n s o n , Inc., 492 F.3d 901, 904 (7th Cir. 2007). The court first determines whether th e witness is qualified as an expert based on knowledge, skills, experience, training o r education. Id. The court next determines whether the expert's reasoning -4-

u n d e rlyin g the testimony is scientifically reliable. Id. Finally, the court must confirm th a t the testimony is relevant. Id. T h e defendants seek to exclude Dr. Berry's expert testimony regarding Mrs. H a c k l's need for a future knee replacement. They do not question Dr. Berry's q u a lific a tio n s or the relevance of his statement to the case. Instead, the defendants ra is e issue with the "reliability" step of the expert testimony analysis. They assert th a t Dr. Berry's prediction does not clear the Daubert reliability hurdle because Dr. B e r r y bases his prediction on experience and observation, and does not cite to re s e a rc h or literature. However, the court is unable to conclude that Dr. Berry's s ta te m e n t is impermissibly unreliable or speculative. Dr. Berry premises his testimony that Mrs. Hackl will likely need a knee re p la c e m e n t on several legitimate bases. First, Dr. Berry bases his medical

p re d ic tio n on his treatment and observation of Mrs. Hackl's injuries. As part of his c a r e , Dr. Berry performed three surgeries on Mrs. Hackl's knee and was able to c o n d u c t visual inspections inside the joint. He noted a significant loss of medical m e n is c u s and degenerative changes in her articular cartilage. (Dr. Berry Depo., at 1 0 - 1 3 ). Second, Dr. Berry bases his medical prediction on 20 years of experience p ra c tic in g board certified orthopedics and his general evaluation of Mrs. Hackl's p a tie n t characteristics, including gender, age, weight, activity level and postsurgical c o n d itio n . (Id. at 20-24). The court deems Dr. Berry's conclusion about the future c o u rs e of Mrs. Hackl's existing condition to be adequately supported.

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T h e fact that Dr. Berry cannot cite to a specific study or medical literature does n o t mean that his conclusion "fails" the Daubert test for reliability. His conclusion a p p lie s to a particular patient whose knee is in a particular state with particular levels o f meniscus and cartilage damage. Thus, Dr. Berry cannot possibly point to a study o r article involving patients with Mrs. Hackl's exact medical situation. Instead, Dr. B e rr y's considerable personal experience in orthopedic patient treatment and his c ita tio n to specific medical facts about Mrs. Hackl's knee render his expert testimony s u ffic ie n tly reliable to make it past the "gateway" set up by Daubert. Further, the cases cited by the defendants regarding the application of D a u b e rt criteria to medical expert testimony are distinguishable. The defendants cite to Porter v. Whitehall Labs., Inc., 9 F.3d 607 (7th Cir. 1993) and Rosen v. CibaG e ig y Corp., 78 F.3d 316 (7th Cir. 1996). Porter and Rosen involve the use of m e d ic a l expert testimony to establish causation between the particular product at iss u e and the plaintiff's injuries. Porter, 9 F.3d at 609-10, 614-15 (addressing a d m is s ib ility of expert testimony regarding the causation between ibuprofen and the p la in tiff 's renal failure); Rosen, 78 F.3d at 317-19 (addressing the admissibility of e xp e rt testimony regarding the causation between a nicotine patch and a heart a tta c k ) . In contrast, the instant case involves expert testimony provided by Mrs. H a c k l's treating surgeon regarding the future medical effects of her knee injury. The P o r te r and Rosen cases provide little useful guidance on the issue before the court h e re , namely, whether a medical treatment provider's prediction about the plaintiff's

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fu tu re medical treatment needs is too speculative to pass muster under the rules of e v id e n c e . T h e court finds that Dr. Berry's statement that it is more probable than not that M rs . Hackl will require a knee replacement is sufficiently reliable under a Daubert a n a lys is . The statement arises from medical treatment, personal observation, and s u b s ta n tia l professional experience and justifies admission of Dr. Berry's c o n c lu s io n s to a jury. Therefore, the court is constrained to deny the defendants' m o tio n to exclude the expert testimony. II. M o tio n for Summary Judgment T h e court now turns to the motion for summary judgment filed by the Hackls. A district court may appropriately grant summary judgment when the moving party e s ta b lis h e s that there is no genuine issue of material fact and the party is entitled to ju d g m e n t as a matter of law. Fed. R. Civ. P. 56(c); Celotex Corp. v. Catrett, 477 U .S . 317, 323 (1986). "Material facts" are those facts which "might affect the

o u tc o m e of the suit," and a dispute about a material fact is "genuine" if a reasonable fin d e r of fact could find in favor of the nonmoving party. See Anderson v. Liberty L o b b y , Inc., 477 U.S. 242, 248 (1986). The party opposing summary judgment c a n n o t simply rest on allegations or denials in its pleadings, but rather, it must in tro d u c e affidavits or other evidence setting forth specific facts showing a genuine iss u e for trial. Anders v. Waste Management of Wisconsin, 463 F.3d 670, 675 (7th C ir. 2006). The court views all facts and draws all reasonable inferences in favor of

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th e nonmoving party. Tanner v. Jupiter Realty Corp., 433 F.3d 913, 915 (7th Cir. 2 0 0 6 ). T h e Hackls ask the court to grant summary judgment in their favor on the is s u e of liability. They point to the report written by their liability expert, Mr. Proft, as s u p p o r t for the motion. Mr. Proft's report states that the failure of the left pedal s p rin g on the ProForm 650 was due to fatigue cracking and ultimate fracturing of the s p rin g . He also states that the "cause" of the cracking could be due to a "number of fa c to r s " and identifies three such factors: T h e ultimate "cause" of the cracking can be due to a number of factors in c lu d in g the imposition of loads above those intended for the c o m p o n e n t, a defective design that results in stresses above the fatigue lim it of the material in normal use or a defective condition in the m a te ria l that resulted in a lower than expected fatigue strength. ( P r o f t Report, Dk #66, Miller Aff., Ex. A, at 3). However, he then discounts one of h is identified potential factors ­ misuse ­ and concludes that the cause of the c ra c k in g must be one of the other two possible factors: S in c e there is no indication of the machine being used for anything o the r than its intended purpose, the failure is attributed to a defective d e s ig n and/or material. (Id .). The Hackls rely on this statement to establish strict product liability based on a defective design or material. They assert that Mr. Proft's report and their proposed fin d in g s of fact sufficiently establish the five required elements for strict product lia b ility and conclude that they are entitled to summary judgment on liability because th e defendants have "no defense."

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H o w e v e r, the Hackls fail to establish the absence of any genuine issue of m a te r ia l fact regarding liability. Summary judgment is not appropriate here because a question remains about what caused the pedal spring to fail. There are several re a s o n a b le inferences that may arise from the evidence presented by the parties. T h e Hackls rely upon the three-page report of Mr. Proft and their own testimony s ta tin g that the elliptical exercise machine was never used for an improper purpose to establish that the cause of the spring failure must be a defective design or m a te r ia l. However, the defendants have demonstrated that a genuine issue of fact e xis ts regarding the cause of the failure by pointing to the affidavit testimony of L a u re l Jensen ("Jensen"), the Director of Product Safety for ICON. Jensen avers th a t ICON sold more than 30,000 ProForm 650 elliptical machines and that the c o m p a n y has received only one other report of a broken pedal spring. (Dk #78, J e n s e n Aff., at 1-2). This evidence allows a fact-finder to infer that misuse was the cause of the p ro d u c t failure and not defective design or materials. First, the credibility of the H a c k ls ' testimony stating that they only used the machine for intended purposes is a matter for evaluation by the jury, not the court. Second, a jury could reasonably c o n c lu d e that the frequency of pedal failures would be much greater than 2 out of 3 0 ,00 0 if design or material defects existed. The inference that misuse may have c a u s e d the pedal spring failure is not precluded by Mr. Proft's report, despite the a s s e rtio n s of the Hackls. Mr. Proft acknowledges the existence of multiple, plausible

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c a u s e s for the pedal spring failure and identifies unintended use of the exercise m a c h in e as one potential cause. Mr. Proft does conclude that the pedal spring failure "must have" been caused b y a defective design or material. However, he makes this statement only after a s s u m in g that the machine was not subject to any unintended usage. He concludes th a t defects must have given rise to the pedal failure "since there is no indication of th e machine being used for anything other than its intended purpose." However, he a s s u m e s that no misuse occurred simply because he was not provided with any e vid e n c e of such, not because the physical evidence of the spring fracture precludes th e possibility that the machine was used for unintended purposes. Mr. Proft does n o t claim any personal knowledge about the Hackls' use of the elliptical machine, n o r does he note any physical characteristics of the pedal spring fracture that p re c lu d e s the possibility that misuse underlies the product failure. Mr. Proft's

c o n c lu s io n of defective design or material is based solely upon his visual e xa m in a tio n 2 of the pedal spring and not upon any testing for metallurgical d e fic ie n c ie s or review of the specifications.3 Consequently, the court disagrees that

Mr. Proft's report notes that he conducted a visual examination and a stereomicroscopic examination. However, he provides no explanation for what these examinations entail. The names suggest examination with the naked eye and with the use of a stereo microscope for magnification. The "Conclusions" section of Mr. Proft's report includes the following statements noting the lack of any testing of the product material: Destructive testing of the spring, including chemical analysis, metallography and micro and macro hardness testing would be required to determine if there are any metallurgical deficiencies. These results would also be compared to the material specifications, which to date, have not been provided. (Proft Report, Miller Aff., Ex. A, at 3)
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M r. Proft's report renders product failure as a result of misuse of the ProForm 650 a n unreasonable inference or that a jury could not find in favor of the defendants. T h e evidence allows for several, conflicting inferences regarding the cause of th e pedal spring failure that resulted in Mrs. Hackl's injuries. A court faced with this s itu a tio n must draw all reasonable inferences in favor of the non-moving party. See T a n n e r, 433 F.3d at 915. Here, the court must draw the inference that the product fa ilu re may have been caused by unintended use of the exercise equipment and d e n y the Hackls' motion for summary judgment on the issue of liability. The issue is one for resolution by a jury. A c c o r d in g ly , IT IS ORDERED that the defendants' motion to exclude the expert testimony o f Dr. Berry (Docket #55) be and the same is hereby DENIED; IT IS FURTHER ORDERED that the plaintiffs' motion for summary judgment o n liability (Docket #63) be and the same is hereby DENIED. D a te d at Milwaukee, W is c o n s in , this 8th day of June, 2010. BY THE COURT:

J .P . Stadtmueller U .S . District Judge

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