Loontjens et al v. Ace American Insurance Company et al

Filing 39

ORDER signed by Judge J P Stadtmueller on 10/15/14: denying 23 Defendants' Motion to Exclude Plaintiff's Sole Liability Expert; denying 23 Defendants' Motion for Summary Judgment; and, denying 38 Joint Motion to Adjourn Trial and Stay Proceedings. (cc: all counsel) (nm)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN
JOHN J. LOONTJENS,
Plaintiff,
v.

Case No. 13-CV-1217-JPS

SENTRY INSURANCE A MUTUAL
COMPANY,
Involuntary Plaintiff,
ACE AMERICAN INSURANCE
COMPANY,
GHP GROUP, INC.,
ABC INSURANCE COMPANY, and
WW GRAINGER, INC.,

ORDER

Defendants.
The plaintiff, John Loontjens initiated this suit on August 28, 2013, in
the Circuit Court of Milwaukee County, Wisconsin. On October 30, 2013, the
defendants, ACE American Insurance Company “(ACE American”), GHP
Group Inc. (“GHP”), ABC Insurance Company “(ABC Insurance”), and WW
Grainger Inc., removed the suit to the United States District Court for the
Eastern District of Wisconsin. (Docket #1). The plaintiff asserts both
negligence and strict liability claims against defendants for a range of alleged
deficiencies in the design, warnings, and instructions associated with a
Dayton brand portable heater. (Docket #2, ¶¶ 13–30). The defendants filed
a Motion to Exclude the plaintiff’s sole liability expert along with a Motion
for Summary Judgment. (Docket #23). The parties have fully briefed those
motions (Docket #24, #25, #27, #29, #30, #34).The Court thus turns to resolve
the motions, first recounting the pertinent facts and then resolving the

Motion to Exclude the plaintiff’s sole liability expert before addressing the
defendants’ Motion for Summary Judgment.
1.

FACTUAL BACKGROUND
Plaintiff’s lawsuit arises from an accident that occurred on September

20, 2010. The plaintiff was attempting to troubleshoot a leak in a small tire
that a co-worker had given him from a Dayton brand portable “torpedo”
heater, model 3VE53E, as part of his job as a tire mechanic for Miller
Compressing Company. The 3VE53E Dayton “torpedo” heater in question
was manufactured for defendant GHP in South Korea. The Dayton brand of
“torpedo” heaters is a brand name specifically manufactured for the Dayton
Manufacturing Company, a wholly owned subsidiary of defendant W.W.
Grainger, Inc. The Dayton brand of “torpedo” heaters was assembled,
packaged, and shipped directly to defendant W.W. Grainger’s distribution
center from South Korea. W.W. Grainger resold the pre-packaged Dayton
brand “torpedo” heaters it received from GHP without altering the product.
The heaters were then resold by defendant W.W. Grainger through its
website and/or print catalog to any individual or business.
On January 15, 2009, plaintiff’s employer, Miller Compressing
Company, purchased the subject Dayton 3VE53E heater from defendant
W.W. Grainger, Inc. The plaintiff testified that prior to September 20, 2010,
he was never asked to work on a tire at Miller Compressing like the tire in
question.
On the day of the injury, the plaintiff was given two heater tires to
repair, one did not hold any air and the other one leaked. The actual
maximum inflation pressure for the tire was 25 PSI. The plaintiff put an
unknown quantity of air at an unknown pressure into the tire that leaked.
Many of the specific facts related to the injury are disputed by the parties.
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The plaintiff testified that he only partially inflated the tire so that he could
put it into the dunk tank to check for leaks, however, the defendants assert
that this is a false statement. After putting some air into the tire, the tire
assembly exploded and hurled one of the metal split rims into the air, which
struck the left side of the plaintiff’s head, threw him backwards into some
tires, and caused the loss of his left eye and other injuries. The force of the
impact shattered the left side of the plaintiff’s safety glasses and punched a
large fist hole in his hard hat.
The plaintiff’s expert, Dr. Burck, has opined that the catastrophic
nature of the failure mode could have been prevented by: using larger nuts
and bolts; using larger washers or rectangular ones; using thicker metal in
the tire rims; using singular-piece rims; using semi-pneumatic tires; or using
pressure relief valve stems. (LaFave Ex. I). The defendants contend that these
opinions are unreliable and inadmissable under Fed. R. Evid. 104(a) and 702.
2.

MOTION TO EXCLUDE EXPERT EVIDENCE
Defendants move to exclude the proposed testimony of Dr. Burck, the

plaintiff’s sole liability expert, under Federal Rule of Evidence 702 and
Daubert. The plaintiff intends to use Dr. Burck as a qualified expert in
mechanical engineering, metallurgy, and failure analysis. The defendants
argue that Dr. Burck should be precluded from testifying about wheel
assembly design and servicing related issues because he is not qualified to
address them as well as the fact that his methodology is unreliable. The
plaintiffs argue that Dr. Burck is eminently qualified to render his metallurgy
opinions regarding the defective split-rim tire assembly and that his
methodology is reliable under Daubert. After much consideration, the Court
must deny the defendants’ Motion to Exclude the expert testimony of Dr.
Burck.
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As an initial matter, the Court denies the plaintiff’s Motion to Strike
the hearsay evidence advanced by the defendants in their challenge to Dr.
Burck’s competency. In testing the admissibility of expert testimony, the
court applies the standards of Fed. R. Evid. 702 in conjunction with Fed. R.
Evid. 104(a). Lewis v. Citgo Petroleum Corp., 561 F.3d 698, 705 (7th Cir 2009).
In assessing whether Dr. Burck’s testimony is permitted as an expert, the
court is obliged to examine a variety of foundational matters that the jury
would never be expected to see, or would encounter in a different context at
trial.
2.1

Legal Standard

In Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S.Ct.
2786, 125 L.Ed.2d 469 (1993), and subsequent cases, the Supreme Court has
charged trial judges with the responsibility of acting as gatekeepers to
exclude unreliable expert testimony, whether scientific or otherwise. See
Kumho Tire Co., Ltd. v. Carmichael, 526 U.S. 137, 119 S.Ct. 1167, 143 L.Ed.2d 238
(1999). Federal Rule of Evidence 702 and Daubert, govern the admission of
expert testimony. Rule 702 states:
“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.”
In order to make such an evaluation, the court must analyze the proposed
testimony using a three-step analysis. Ervin v. Johnson & Johnson, Inc., 492
F.3d 901, 904 (7th Cir. 2007).

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First, “the witness must be qualified ‘as an expert by knowledge, skill
experience, training, or education.’” Id. An expert need not have particular
academic credentials to be “qualified,” but rather “anyone with relevant
expertise enabling him [or her] to offer responsible opinion testimony helpful
to judge or jury may qualify as an expert witness.” Tuf Racing Prods., Inc. v.
American Suzuki Motor Corp., 223 F.3d 585, 591 (7th Cir. 2000). Ultimately,
“whether a witness is qualified as an expert can only be determined by
comparing the area in which the witness has superior knowledge, skill,
experience, or education with the subject matter of the witness's testimony.”
Carroll v. Otis Elevator Co., 896 F.2d 210, 212 (7th Cir. 1990). In other words,
the focus is not on whether the “expert is qualified in general, but whether
his or her ‘qualifications provide a foundation for [him or her] to answer a
specific question.’” Gayton v. McCoy, 593 F.3d 610, 617 (7th Cir. 2010) (internal
citations omitted).
However, even if the court finds that a witness is a “supremely
qualified expert,” that witness “cannot waltz into the courtroom and render
opinions unless those opinions are based upon some recognized scientific
method and are reliable....” Clark v. Takata Corp., 192 F.3d 750, 759 n. 5 (7th
Cir. 1999). Accordingly, at the second step of its analysis of whether expert
testimony ought be admitted as evidence, the court must determine that an
“expert's reasoning or methodologies underlying the testimony” are
“scientifically reliable.” Ervin, 492 F.3d at 904. Daubert provided a
non-exhaustive list of “guideposts” for the court to consult in assessing the
reliability of expert testimony: (1) whether the scientific theory can be or has
been tested; (2) whether the theory has been subjected to peer review and
publication; (3) the theory's known or potential error rate when applied; and
(4) whether the theory has been generally accepted in the relevant scientific,
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technical, or professional community. Additionally, other factors may apply.
The Seventh Circuit, parroting the Advisory Committee Notes to Rule 702,
has suggested other benchmarks for gauging expert reliability, including: (5)
whether "maintenance standards and controls" exist; (6) whether the
testimony relates to "matters growing naturally and directly out of research
they have conducted independent of the litigation," or developed "expressly
for purposes of testifying"; (7) "whether the expert has unjustifiably
extrapolated from an accepted premise to an unfounded conclusion"; (8)
"whether the expert has adequately accounted for obvious alternative
explanations"; (9) "whether the expert is being as careful as he would be in
his regular professional work outside his paid litigation consulting"; and (10)
"whether the field of expertise claimed by the expert is known to reach
reliable results for the type of opinion the expert would give." Fuesting v.
Zimmer, Inc. (Fuesting I), 421 F.3d 528, 534–35 (7th Cir. 2005), vacated in part
on other grounds, 448 F.3d 936 (7th Cir. 2006). Daubert, 509 U.S. at 593–94,
113 S.Ct. 2786. “[T]he Daubert framework when assessing the reliability of
an expert's testimony is a flexible one that must be adapted to the particular
circumstances of the case and the type of testimony being proffered.” See
Mihailovich v. Laatsch, 359 F.3d 892, 919 (7th Cir. 2004); see also Kumho Tire Co.
v. Carmichael, 526 U.S. 137, 141, 119 S.Ct. 1167, 143 L.Ed.2d 238 (1999)
(holding that, in applying the Daubert framework, a court must “account for
the various types of potentially appropriate expert testimony.”) Ultimately,
the object of the court's Rule 702 reliability inquiry is to ensure that the
opinions expressed by testifying experts “adhere to the same standards of
intellectual rigor that are demanded in their professional work.” Rosen v.
Ciba–Geigy Corp., 78 F.3d 316, 318 (7th Cir. 1996).

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Third, a court must confirm that an expert's testimony is relevant; that
is, the testimony must “assist the trier of fact to understand the evidence or
to determine a fact in issue.” Ervin, 492 F.3d at 904. Relevant evidence is
evidence that has “any tendency to make the existence of any fact that is of
consequence to the determination of the action more probable or less
probable than it would be without the evidence.” Daubert, 509 U.S. at 587, 113
S.Ct. 2786 (citing Fed.R.Evid. 401). The proponent of the expert's testimony
bears the burden of proof with respect to whether the admissibility
requirements are met. See Lewis v. CITGO Petroleum Corp., 561 F.3d 698, 704
(7th Cir. 2009). With these legal principles in mind, the court proceeds to
examine the proposed testimony of Dr. Burck, who is the subject of the
Daubert motion.
2.2

Analysis

First, the court examines whether Dr. Burck is qualified to testify on
the issues that his testimony concerns. See Gayton, 593 F.3d at 617 (“[W]e
must look at each of the conclusions [the expert] draws individually to see
if he [or she] has the adequate education, skill, and training to reach them.”).
Dr. Burck has reached the following conclusions in this matter: 1) as
manufactured, distributed, and sold, the accident heater was defective and
unreasonably dangerous and not reasonably safe for its intended use because
of the catastrophic mode of the wheels at inflation pressures which should
have been anticipated; 2) contributing factors to the subject wheel failure
were the thin sheet metal construction of the wheel, the small bolt head
diameter, and the small thin washer used under the bolt heads, all of which
allowed the material surrounding the bolt heads to deform and the heads to
pull through; 3) the foreseeable catastrophic failure mode could have been
eliminated at a nominal cost, which would have prevented or greatly
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reduced the injuries to the plaintiff; 4) the catastrophic nature of the failure
mode of the wheel when overinflated could have been prevented by
reinforcing the material near the bolt holes by the use of washers to distribute
the load, as is done by other manufacturers; and 5) the potential for over
inflation of the heater tires should have been anticipated by the
manufacturer, distributor, and seller of the heater.
2.2.1

Dr. Burck’s Qualifications

Dr. Burck’s academic record indicates that he holds a Bachelor of
Science in Mechanical Engineering from Michigan State University, a Master
of Science in Engineering Mechanics from Rensselaer Polytechnic Institute,
and a Doctorate in Materials Science and Engineering from Northwestern
University. Dr. Burck has worked as a consultant in the fields of
metallurgical, materials, and mechanical failure analysis from 1984 to the
present. Additionally, Dr. Burck’s experience includes numerous seminar
presentations, talks, and peer-reviewed publications, primarily on the topics
of fatigue, fracture, and failure analysis of engineering materials.
(McCormick Ex. 14).
Here, the court concludes that Dr. Burck is qualified to relate his
opinion on the mechanics, qualities, and failure of the split-rim assembly at
issue in this matter based on his education and work experience. The
defendants’ main objection to Dr. Burck’s testimony is that a metallurgist is
not an expert that “fits” the facts of this case. Defendants argue that Dr.
Burck’s lack of training, experience, or expertise related to tire or tire repair
disqualifies his testimony in this case. However, nothing in Rule 702 or in the
jurisprudence interpreting the rule indicates that an expert must have specific
knowledge about the precise object of the litigation. See Baumholser v. Amax
Coal Co., 630 F.2d 550, 551 (7th Cir. 1980) (“The fact that [the expert] had little
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actual experience in the study of blasts from coal mining operations[, the
specific issue in the litigation,] did not disqualify him from expressing his
opinion, which was based on general geological principles.”); see also
Tormenia v. First Investors Realty Co., 251 F.3d 128, 135 (3d Cir. 2000) (“Rule
702 does not require that experts have personal experience with the object of
the litigation in which they testify, nor does it require that experts eschew
reliance on a plaintiff's account of factual events that the experts themselves
did not observe.”) In fact, the essence of expert testimony is calling a person
to testify who has a knowledge base superior to a lay person in a “general
theory or technique” and having that person “apply…the theory or
technique to the specific facts of the case.” Kenneth S. Broun, McCormick on
Evidence § 13 (6th ed. 2006) (“[T]he expert's testimony is a syllogism: the
major premise is the validity of the general theory or technique, the minor
premise is the case specific data, and the application of major to minor yields
a conclusion relevant to the merits of the case.”).
Dr. Burck’s opinions relate directly to the design of the split-rim wheel
assembly at issue in this case. While Dr. Burck may not be the most qualified
person to testify on the issue before the court, the Federal Rules of Evidence
to do not require such a standard. Any disputes regarding Dr. Burck’s
qualifications can be the subject of cross-examination should he testify at
trial. See G. Joseph & S. Saltzburg, Evidence in America § 51.3 (Courts have
made it clear that “trial judges are not to demand that the proffered expert
possess the highest possible credentials or skills, or be the most qualified of
all conceivable experts.”).
2.2.2

Reliability of Dr. Burck’s Methodology

“‘Even if an expert is qualified,’” a court should not allow an expert
to offer an opinion that does not “rely on proper methodologies” and is
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“‘therefore speculative.’” Lemmermann v. Blue Cross Blue Shield of Wis., 713
F. Supp. 2d 791, 801 (E.D. Wis. 2010) (citing Weir v. Crown Equip. Corp.,
217 F.3d 453 464 (7th Cir. 2000)). Accordingly, the court must examine the
methodologies that the instant witness used in arriving at the conclusion that
the subject heater was unreasonably dangerous. In making such an
examination, the court keeps in mind the list of relevant factors provided by
the Daubert case and its progeny discussed earlier in the order in evaluating
the reliability of an expert's methods.
Here, the court finds that Dr. Burck’s methodology is scientifically
reliable under Daubert and, thus, the defendants’ Motion to Exclude his
testimony should be denied. Dr. Burck’s investigation in this matter included:
1) a visit to Miller Compressing where he met with personnel regarding
incident and examined the failed wheel and tire components as well as the
other tire from the opposite side of the heater; 2) reviewing photographs of
the accident site taken by Miller Compressing personnel immediately after
the incident and also photographs and a report prepared by an insurance
investigator nine days after the accident; 3) destructive failure testing (with
metallurgist Dr. Gerald Zaminsk) to determine the inflation pressures
required to fail the two exemplar wheel assemblies supplied by counsel for
the defendants; 4) Dr. Burck investigated, tested and analyzed the sheet
metal used in the split-rim tire assembly, the sheet metal used in the split-rim
tire assembly, the nuts and bolts used to secure the split-rim tire assembly,
the size of the bolt heads used to secure the split-rim tire assembly and their
respective thread diameter and thread pinch, the washers used in the splitrim assembly, and the size of the bolt holes in the split-rim tire assembly as
compared to the industry standards; and 5) proposing a destructive test
protocol for the subject split-rim tire assembly to test the strength of the steel
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split rim, however, the defendants refused to allow this testing to proceed.
(LaFave Ex. J). Contrary to the defendants’ assertions, this extensive list of
testing cannot be considered mere conjecture or “bottom line” conclusion.
Dr. Burck’s testimony will assist the trier of fact to understand the evidence
and to determine material facts at issue in this case. See Ervin v. Johnson &
Johnson, Inc., 492 F.3d 901, 904 (7th Cir. 2007).
The methodology used by Dr. Burck is vastly different from the cases
defendants cite where courts have found expert testimony unreliable and
therefore inadmissable. Clark v. Takata Corporation involved a vehicle rollover
accident in which the plaintiff claimed that the failure of his seat belt caused
him to suffer serious injuries. Clark v. Takata Corp., 192 F.3d 750 (7th Cir.
1999). The court excluded the expert testimony of a biomechanical engineer
who had performed absolutely no testing on the seat belt at issue or any reenactment of the accident and had reviewed no testimony from the plaintiff
or from any of the witnesses at the scene or any of the passengers who were
in the accident vehicle. Id. at 755, 758. Furthermore, the expert witness in
Clark had not made any measurements, such as "how far the front seat was
reclined at the time of the accident or the extent to which the roof was
crushed in the rollover." Id. at 755-56. In giving his opinion, the expert
witness simply stated that he had relied on his "experience." Id. at 758. Under
those facts, the court found the expert's testimony unreliable and properly
excluded. Id. at 759.
Likewise, in Lemmermann v. Blue Cross Blue Shield, the court excluded two
of the plaintiff's expert witnesses whose testimony it deemed unreliable under
Daubert. 713 F.Supp.2d 791 (2010). In Lemmermann, the plaintiff claimed that she
suffered injuries when chemicals she was using to treat her pool exploded,

causing her to suffer from respiratory injuries. Id. at 793. She retained an
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environmental engineering expert to bolster her claim. Id. at 798. The expert
was to testify regarding two distinct claims: (1) the product could explode
when mixed with a small amount of water; and, (2) the manufacturer failed
to provide an explosion warning. Id. The court ultimately found that the
expert was qualified to testify to the first claim, but excluded his testimony
regarding the second claim because he lacked "expertise in a manufacturer's
responsibilities to the end users of their products." Id. at 800-01. The court
ultimately struck the expert engineer's testimony entirely because it found
his methodology unreliable. Id. at 801. In reaching this conclusion, the court
stated the following:
In essence, Mr. Schuck's "methodology" involved reading
several labels and data sheets regarding dichlor and, at best,
parroting the conclusions of the authors of those data sheets.
Surmising that a chemical reaction will occur because someone
else has concluded that a chemical reaction will occur is utterly
circular in its logic and is the epitome of an unreliable
methodology.
Id. at 802. In addition to striking the testimony of the plaintiff's
environmental engineering expert, the court also concluded that the expert
testimony of the plaintiff's treating pulmonologist was unreliable and
therefore excluded. Id. at 807. The plaintiff in Lemmermann suffered from
preexisting asthma. Id. at 805. The pulmonologist was going to offer
testimony that the plaintiff either acquired Reactive Airways Dysfunction
Syndrome (RADS) or suffered an exacerbation of her asthma. Id. at 803.
Among other things, the court was troubled by the fact that the first criterion
for the diagnosis of RADS is "the absence of preexisting disorder, asthma
symptomatology or history of asthma in remission, and exclusion of
conditions that can simulate asthma," yet the plaintiff suffered from an
obvious history of battling asthma. Id. at 805. Moreover, the court noted that
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the "fourth criterion for a valid diagnosis of RADS is the onset of asthma
symptoms within minutes to hours, and less than 24 hours after the
exposure." Id. Yet the court noted that the plaintiff had not complained about
shortness of breath on the day of the incident and the records showed her
lungs to be free and clear of injury. Id. Regarding the diagnosis of
exacerbation of preexisting asthma, the court found it unreliable because the
only time the expert witness referred to it was at the end of her sworn
deposition. Id. at 806. In addition to regarding the expert pulmonologist's
diagnosis as suspect, the court further found that her methodology regarding
causation was suspect. Id. at 809. Again, this finding went to the fact that the
expert had not investigated to what extent the plaintiff had been exposed to
the chemical or even "undertaken any effort to explain her findings regarding
causation." Id.
In contrast to the cases cited by defendants, here, Dr. Burck conducted
numerous tests, as detailed above, in relation to the incident at hand. Rather
than engaging in a Daubert analysis using any of the factors to determine
reliability, the defendants point to a variety of additional tests that Dr. Burck
should have performed in order to reach a reliable conclusion in this matter.
Defendants argue that Dr. Burck failed to consider whether what the plaintiff
relates about the accident is physically possible. Defendants further argue
that Dr. Burck failed to consider how fast the tire in question would have
failed if exposed, even briefly, to line pressure of 130 PSI—the amount of
pressure defendants allege was used in the accident.
Indeed, there is no doubt that additional testing may have been
helpful in reaching a scientific conclusion in this case. However, it is not the
purview of the court as the gatekeeper of evidence to determine the necessity
of each and every possible test that could possibly be performed in reaching
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a valid scientific conclusion. Such determination is better left as the subject
of cross-examination. Moreover, Dr. Burck requested additional testing
related to destructive testing protocol in this case that the defendants refused
to allow. (LaFav Ex. H). Defendants have not pointed to any information
that suggests that Dr. Burck used a scientific theory that is untested, not
subject to peer review, not evaluated in light of potential error rates, or not
accepted in the relevant scientific community. The defendants can more
appropriately attack Dr. Burck’s inclusion or exclusion of certain possibilities
upon cross-examination at trial. As the Supreme Court noted in Daubert,
Vigorous cross-examination, presentation of contrary evidence,
and careful instruction on the burden of proof are the
traditional and appropriate means of attacking shaky but
admissible evidence…. Additionally, in the event the trial court
concludes that the scintilla of evidence presented supporting
a position is insufficient to allow a reasonable juror to conclude
that the position more likely than not is true, the court remains
free to direct a judgment…and likewise to grant summary
judgment.
Daubert, 509 U.S. at 596. Accordingly, the defendants’ Motion to Exclude Dr.
Burck as a liability expert is denied.
3.

MOTION FOR SUMMARY JUDGMENT
The court now turns to the defendants’ Motion for Summary

Judgment. The plaintiff alleges that while he inflated one of the tires of the
torpedo heater, the rim exploded and smashed into the left side of his face,
which caused serious bodily injury. (Compl. at 5). Plaintiff seeks recovery
under negligence and/or strict liability in tort.1

1

The Plaintiff additionally makes a third claim for punitive damages, which
the court shall discuss in detail below.

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3.1

Legal Standard

Summary judgment is appropriate where the “pleadings, the
discovery, and disclosure materials on file, and any affidavits show that there
is no genuine issue of material fact and that the moving party is entitled to
judgment as a matter of law.” Fed.R.Civ.P. 56(c); Wis. Alumni Research Found.
v. Xenon Pharms., Inc., 591 F.3d 876, 882 (7th Cir. 2010). A genuine issue of
material fact exists when a reasonable jury could find in favor of the nonmoving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505,
91 L.Ed.2d 202 (1986). “The initial burden is on the moving party…to
demonstrate that there is no material question of fact with respect to an
essential element of the non-moving party's case.” Delta Consulting Group,
Inc. v. R. Randle Constr., Inc. 554 F.3d 1133, 1137 (7th Cir. 2009) (quoting Cody
v. Harris, 409 F.3d 853, 860 (7th Cir. 2005)). Once the movant satisfies this
initial burden, the burden then shifts to the non-moving party who “may not
rest upon the mere allegations or denials of his pleading, but…must set forth
specific facts showing that there is a genuine issue for trial.” Doe v.
Cunningham, 30 F.3d 879, 883 (7th Cir. 1994) (quoting Anderson, 477 U.S. at
248, 106 S.Ct. 2505). In ruling on a summary judgment motion, the court
must view the evidence plus all inferences reasonably drawn from the
evidence in the light most favorable to the non-moving party. TAS
Distributing Co., Inc. v. Cummins Engine Co., Inc., 491 F.3d 625, 630 (7th Cir.
2007). With these standards in mind, the court looks to the specific
allegations made by the plaintiff.
3.2

Analysis

Defendants make three separate arguments in their Motion for
Summary Judgment. The Court will address each of the arguments in turn.
First, the defendants argue that they are entitled to summary judgment on
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the assumption that the plaintiff’s expert, Dr. Burck, will be excluded in this
matter. As discussed above, the court finds that Dr. Burck is qualified to
testify regarding his conclusions in this matter. What remains is a duel of the
experts, whose ultimate conclusions present an issue of material fact that is
within the province of the jury. Thus, the defendants are not entitled to
summary judgment under this theory.
Second, the defendants argue that the plaintiff cannot prove any
deficiencies in the warnings or instructions to the subject wheel assembly nor
that they caused his accident. Defendants correctly note that the plaintiff has
not disclosed any expert to address the warnings and instructions regarding
the subject wheel assembly. Indeed, the plaintiff’s sole expert, Dr. Burck,
stated he had no opinion on the issue. The defendants argue that any failure
to warn allegations must be dismissed because the concept of what
constitutes appropriate instructions or warnings for this component of heater
is beyond the ken of average jurors. See Weis v. United Fire and Cas. Co., 197
Wis.2d 365, 380-81, 541 N.W.2d 753 (1995) (holding that “[t]he lack of expert
testimony in cases which are so complex or technical that a jury would be
speculating without the assistance of expert testimony constitutes an
insufficiency of proof.”) The defendants further argue that, regardless, the
plaintiff cannot prove causation for a failure to warn claim because the
plaintiff’s testimony indisputably proves that he required no warning about
the hazards of overinflating a tire
The court finds that the defendants are not entitled to summary
judgment on the failure to warn claim. The defendants have cited to no cases
that require an expert specifically on the issue of proper instructions or
warnings. Although the plaintiff has no expert on this subject, the issue of the
defendants’ negligence remains within the purview of the jury. Moreover,
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the fact that the plaintiff did not check the tire pressure in this case does not
disprove the possibility that he may have altered his behavior and avoided
injury with a different type of warning. The court finds that material issues
of fact exist as to any failure to warn claim and, thus, the defendants are not
entitled to summary judgment on the claim.
Finally, the defendants claim that the plaintiff improperly plead
punitive damages as a separate claim. The defendants properly note
that“[p]unitive damages are a remedy, not a cause of action.” Hansen v. Tex.
Roadhouse, Inc., 2013 WI App 2 ¶ 21, 345 Wis. 2d 669, 827 N.W. 2d 99 (Ct.
App. 2012). As such, the court will dismiss the plaintiff’s third claim for
punitive damages and will consider the claim as a remedy for the remaining
negligence and strict liability claims.
4.

CONCLUSION
The Court finds that the plaintiff’s expert, Dr. Burck, is permitted to

testify as an expert witness in this matter under Daubert. As such, material
issues of fact remain that preclude summary judgment at this stage. Finally,
in light of these rulings, the Court has considered the parties’ Joint Motion
to Adjourn Trial (Docket 38), and finds that staying all pretrial proceedings
is no longer necessary.2
Accordingly,

2

The Court notes that the parties have not fully briefed the issues related to
the defendants’ expert, Dr. Bolden’s, testimony. The plaintiff argues in the
opposition brief that portions of Mr. Bolden’s report/opinions should be stricken
as inherently reliable under Daubert. In the interest of efficiency and timely ruling
on the Motion for Summary Judgment, the court will consider arguments related
to Mr. Bolden’s expert opinions in motions in limine prior to the start of trial.

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IT IS HEREBY ORDERED that the defendants’ Motion to Exclude
Plaintiff’s Sole Liability Expert, Dr. Burck (Docket #23), be and the same is
hereby DENIED;
IT IS FURTHER ORDERED that the defendants’ Motion for
Summary Judgment (Docket #23) be and the same is hereby DENIED; and
IT IS FURTHER ORDERED that the Joint Motion to Adjourn Trial
and Stay Proceedings (Docket #38) be and the same is hereby DENIED.
Dated at Milwaukee, Wisconsin, this 15th day of October, 2014.
BY THE COURT:

J.P. Stadtmueller
U.S. District Judge

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