American Family Mutual Insurance Company v. Electrolux Home Products, Inc.
Filing
139
ORDER granting in part and denying in part 127 Motion to Preclude the Testimony of Plaintiffs' Expert Witnesses W. Joseph Fallows, Michael R. Stoddard, Jr. and Eric J. Boelhouwer, Ph.D. by Defendant Electrolux Homes Products, Inc. Signed by Magistrate Judge Stephen L. Crocker on 6/25/2014. (arw)
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF WISCONSIN
AMERICAN FAMILY MUTUAL
INSURANCE COMPANY, et al.,
Plaintiffs,
v.
OPINION AND ORDER
11-cv-678-slc
ELECTROLUX HOME PRODUCTS, INC.,
Defendant.
In this set of consolidated dryer fire lawsuits, defendant Electrolux has moved to preclude
the testimony of plaintiffs’ expert witnesses: W. Joseph Fallows, Michael R. Stoddard, Jr. and
Eric J. Boelhouwer, Ph. D., pursuant to Fed. R. Evid. 702 and
Daubert v. Merrell Dow
Pharmaceuticals, 509 U.S. 579 (1993). See dkt. 127.1 The court has read the expert reports and
considered the parties’ briefs and other submissions. I am granting the motion in part and
denying it in part in the manner and for the reasons stated below:
I. Legal Standard
The admission of expert testimony is governed by Federal Rule of Evidence 702 and the
principles announced in Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579 (1993). Rule 702
states:
1
Although Electrolux indicates in its motion that it is seeking to bar the testimony of these experts in
toto, its brief does not separately challenge each opinion offered by each expert. For example,
Electrolux does not raise any specific objection to Dr. Boelhouwer’s testimony that the phrase “interior
of the dryer” on Electrolux’s product warning is ambiguous or to his ultimate conclusion that the lack
of an adequate warning renders the dryers unreasonably dangerous. In addressing the instant motion,
I have considered only those specific challenges raised by Electrolux in its brief. I will not speculate as
to where we might land in limine.
A witness who is qualified as an expert by knowledge, skill, experience, training,
or education may testify in the form of an opinion or otherwise if:
(a)
the expert’s scientific, technical, or other specialized knowledge will help
the trier of fact to understand the evidence or to determine a fact in issue;
(b)
the testimony is based on sufficient facts or data;
(c)
the testimony is the product of reliable principles and methods; and
(d)
the expert has reliably applied the principles and methods to the facts of
the case.
See also Daubert, 509 U.S. at 589-95 (explaining framework for evaluating expert testimony).
II. Michael Stoddard
Plaintiffs have disclosed Michael Stoddard, of the Wright Group, as an expert witness on
the subjects of defective design of the dryers at issue in these consolidated cases, and the
adequacy of Electrolux’s warnings. Stoddard has a Bachelor of Science in Arson Investigation,
and is a certified fire investigator through the International Association of Arson Investigators
and a certified fire and explosion investigator through the National Association of Fire
Investigators. Since April 2006, Stoddard has been employed by the Wright Group, Inc. as a
fire analyst, where he is responsible for cause and origin investigations and forensic evidence
analysis and testing, especially as it relates to dryer fires.
Stoddard has extensive professional experience with dryer fires, having investigated
hundreds of them. His methodology includes applying the scientific method to determine what
may have caused a particular fire, as well as the examination and testing of both burned and
unburned dryers to analyze their components, operation, design and maintenance. Stoddard
has examined more than 500 Electrolux gas and electric dryers, analyzing their design, their
2
modes of operation and their failures. Stoddard has test-run these dryers for over 1,000 hours.
He has authored more than 80 reports concerning these dryers. In addition, Stoddard has
attended over 60 hours of training courses and seminars specifically related to appliances and
dryers and he has performed forensic testing on dryers by other manufacturers.
Electrolux asks the court to preclude Stoddard from testifying to the following opinions:
(1)
The subject dryers’ design is defective because it allows lint to
accumulate in areas where it is in close proximity to the dryers’
heat source, and this defect could have been remedied by a simple
design alternative;
(2)
The design is defective because Electrolux opted to use HB plastic
rather than 5V plastic or steel for certain components, thereby
adding additional fuel to a fire in the event that a fire starts in the
dryer; and
(3)
Electrolux’s warnings are inadequate.
A. Defective Design: Lint Accumulation
Stoddard’s opinions regarding the hazard posed by the accumulation of lint in the subject
dryers and his proposed design alternative were formed in large part based upon his examination
and testing of numerous “exemplar dryers,” which consisted of burned Electrolux dryers that had
been sent to him for examination after a fire, and unburned dryers that Stoddard purchased new
or used. From his examinations of these dryers, Stoddard concluded that, although all dryers
accumulate lint, Electrolux has designed its driers in a way that allows lint to accumulate near
the heat source where the lint can easily ignite.
Stoddard has developed and tested an
alternative design that reduces the amount of lint accumulation by adding a barrier that prevents
lint behind the drum from coming into contact with the heat source.
3
Electrolux first argues that this court should exclude all of Stoddard’s opinions because
his expertise lies in fire analysis; therefore he is not qualified to offer opinions regarding
engineering, product design, plastics, or warnings. Although it is true that Stoddard is not
trained as an engineer, Rule 702 does not demand such a precise correlation between an expert’s
education and the opinions he offers. As set forth in Fed. R. Evid. 702, a witness may qualify
to offer an expert opinion by virtue of his or her “knowledge, skill, experience, training, or
education.”
As one district court explained:
“That proposition is really a two-sided
coin—abstract academic credentials (no matter how impressive) should not be overvalued if not
apropos to the zone of expertise required, while at the same time relevant practical experience
should not be undervalued if pertinent.” Dewick v. Maytag Corp., 324 F. Supp. 2d 894, 897
(N.D. Ill. 2004) (citing Smith v. Ford Motor Co., 215 F.3d 713, 718 (7th Cir. 2000)). The court
must consider the proposed expert’s “full range of practical experience” as well as his or her
academic or technical training when deciding whether the expert is qualified to render an
opinion in a particular area. Smith, 215 F.3d at 718. See also Tyus v. Urban Search Mgmt., 102
F.3d 256, 263 (7th Cir. 1996) (“[G]enuine expertise may be based on experience or training.
In all cases, however, the district court must ensure that it is dealing with an expert, not just a
hired gun.”).
I am satisfied that Stoddard has ample practical experience that qualifies him as an expert
with respect to the cause and origin of the subject fires as well as dryer design and safety.
Stoddard has spent a decade testing and examining dryers, fires associated with those dryers,
dryer design, dryer operation, and dryer failure modes, Stoddard has similar experience assessing
accepted warning label or product literature. Based on Stoddard’s many hours of hands-on
4
experience, numerous physical examinations, and testing of various manufacturers’ dryers
(especially the Electrolux dryers at issue in this case), as well as his knowledge of industry
practice and developments in the field of dryer design, I am satisfied that Stoddard is qualified
to offer an opinion regarding the hazards posed by the subject dryers and the existence of safer
design alternatives.2
Second, Electrolux contends that Stoddard’s opinion concerning the defective design of
its dryers is unreliable because: 1) Stoddard knew nothing about the operational history,
installation or maintenance of many of the exemplar dryers on which he relied in forming his
opinion; 2) Stoddard has not conducted lint accumulation testing; 3) Stoddard was able to
recreate a fire in an Electrolux dryer only by introducing lint to the heat source; and 4) Stoddard
did not examine a representative sample of the relevant population of Electrolux dryers.
In evaluating whether a proposed’s expert’s testimony is reliable, the court should ensure
that the expert “employs in the courtroom the same level of intellectual rigor that characterizes
the practice of an expert in the relevant field.” Kumho Tire Co., 526 U.S. at 152. The court must
ensure that the expert used a valid methodology, sufficient data justified the use of the
methodology, and the expert applied the methodology appropriately. Stollings v. Ryobi
Technologies, Inc., 725 F.3d 753, 765 (7th Cir. 2013). The court has considerable leeway in
determining whether particular expert testimony is reliable. Manpower, Inc. v. Ins. Co., 732 F.3d
2
W hile not binding on this court, at least two other courts have reached this same conclusion. See,
State Farm Fire & Cas. Co. v. Electrolux Home Products, Inc., et al., Case No. 10-cv-3901-jfb-akt (tr. of
hearing, Aug. 22, 2012) and State Farm Gen. Ins. Co. v. Electrolux Home Products, Inc., et al., Sup. Ct.,
County of Los Angeles, North Central District, Case No. EC053578, (tr. of hearing June 13, 2012),
attached as Exhs. 1 and 2 to plt.’s brief in opposition, dkt. 135. See also State Farm Fire & Cas. v.
Electrolux Home Products, Inc., 2013 W L 3013531 (N.D. Ind., June 17, 2013) (deeming similar expert
testimony of Ronald Parsons, Stoddard’s colleague at the W right Group, to be reliable).
5
796, 806 (7th Cir. 2013). However, there must be a “link between the facts or data the expert
has worked with and the conclusion the expert's testimony is intended to support.” United States
v. Mamah, 332 F.3d 475, 478 (7th Cir. 2003). Various factors to consider, to the extent they
apply, include whether a theory or technique can be and has been tested, whether it has been
subjected to peer review and publication, and whether it is generally accepted. All this being so,
no definitive checklist exists; the inquiry is flexible. See Daubert, 509 U.S. at 593–94.
Applying these considerations to Stoddard’s opinions, I am satisfied that he reached his
defective design theory as a result of reliable methods and that sufficient facts and data exist to
support his conclusions. Stoddard’s opinion that the lint in the subject dryers accumulates near
the heat source was derived from physical examinations of over 100 Electrolux dryers, all of
which were documented and photographed. Stoddard’s determination that the fires at issue
originated when lint ignited upon contact with the heat source was derived after a thorough
cause and origin investigation utilizing the scientific method, the validity of which Electrolux
does not challenge. Electrolux complains that the exemplar pool was not “representative” but
it doesn’t say why not: as it acknowledges, Stoddard examined used, unburned Electrolux dryers
as well as burned dryers.
Electrolux’s objection to Stoddard’s failure to perform lint accumulation testing misses
the mark. According to Stoddard, the problem with the design of Electrolux’s dryers is not how
much lint they accumulate but where the lint accumulates. It is further Stoddard’s opinion that,
because it is reasonably foreseeable that some dryer owners may not properly vent or clean their
dryers and thereby may fail to prevent excessive lint build-up, Electrolux should have accounted
for that risk when designing its dryers. Stoddard notes a 2003 study by the Consumer Product
6
Safety Commission which found that lint accumulates inside a dryer even when the lint screen
has been cleaned after each use and the dryer is properly exhausted. Given the nature of the
alleged defect Stoddard has identified, the fact that he did not test or control for various factors
that can affect the amount of lint that accumulates does not impact the scientific validity or
relevance of his opinion.
Finally, given the otherwise-scientifically sound methods that Stoddard used to reach his
conclusions, his opinion is not rendered inadmissible by the mere fact that he was unable to
recreate a lint-ignited dryer fire in an Electrolux dryer without physically introducing a piece of
lint to the heat source. As he explained at his deposition, Stoddard Dep., dkt. 128-9, at 210-11,
it would cost unknown amounts of time and money to run numerous dryers continuously until
a fire spontaneously ignited in one of them. Electrolux is free to attempt to discredit Stoddard’s
test methods at trial, but these methods are not so unreliable as to be inadmissible. Stollings,
725 F.3d at 765 (district judge's gatekeeping role does not extend to reliability of expert
conclusions; that conclusions can be impeached does not mean the testimony is unreliable).
B. Defective Design: Plastic Components
Electrolux attacks Stoddard’s opinion that the subject dryers were defectively designed
because certain components were composed of HB-rated plastics instead of plastics treated with
fire retardant or other materials. Electrolux argues that Stoddard’s opinion rests on nothing
more than a test that exposed the plastics to a flame for a maximum of 60 seconds, which is not
a predictor of how these plastics would perform in a “real-world” dryer fire.
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This is not an accurate characterization of the foundation for Stoddard’s opinion. In
addition to the component burn testing to which Electrolux refers, Stoddard’s opinion is based
on fire containment testing of an Electrolux dryer during which HB plastics melted and flowed
out of the dryer cabinet, and on his knowledge of alternative dryer designs that use metal
components instead of the plastics used in the subject Electrolux models.
In addition,
Stoddard’s training and experience as a fire and cause analyst, with his special emphasis on dryer
fires, makes him qualified to offer an opinion regarding the overall effect on a fire if the fire came
into contact with a fire-retardant, self-extinguishing plastic versus an inflammable plastic that
continued to burn. As plaintiffs correctly point out, see Br. in Opp., dkt. 135, at 10, Stoddard
does not offer opinions regarding the makeup of particular plastics, how the plastics themselves
are manufactured or how a particular plastic failed, such that the opinion would require some
expertise in plastics engineering. Rather, Stoddard’s opinion regarding Electrolux’s use of plastics
is narrow: in most conditions, the use of an alternate plastic or metal would have been more
effective at reducing a fire’s spread and containing the fire to the cabinet. I am satisfied from
Stoddard’s reports that there is a sufficient link between his testing and review of alternate
designs and his opinion regarding the risk posed by Electrolux’s choice of certain plastics for
some of the dryer components.
That said, the relevance of Stoddard’s opinion regarding fire containment (as opposed
to fire ignition) is not clear. Without knowing the specific facts of each fire at issue in this case,
the court cannot determine if testimony regarding fire containment would assist the jury in
determining any fact at issue in this case. Electrolux is free to re-assert its relevance objection
after the record has been more fully developed, either at summary judgment or trial.
8
3. Warnings
In his report, Stoddard offers several opinions about the efficacy of Electrolux’s warnings
and user instructions in preventing the risk of fire posed by the dryers’ alleged problem with lint
accumulation. Stoddard has opined that the Electrolux warnings are inadequate because: 1)
Electrolux did not include a warning to have the dryer serviced every 18 months on the onproduct labels of every subject dryer model; 2) Electrolux did not include instructions on how
to remove lint in areas inaccessible to the user; 3) it is foreseeable that users will not comply with
the requirement that they service the dryer every 18 months; 4) Electrolux failed to comply with
voluntary standards regarding warnings and instructions; and 5) Electrolux should have
implemented engineered active warning devices to warn users of the need to service the dryer
and of conditions restricting air flow.
Electrolux first challenges Stoddard’s qualifications to provide expert testimony regarding
the adequacy of the warnings affixed to and accompanying the subject dryers, pointing out again
that Stoddard’s qualifications lie in the field of fire cause and origin, not engineering or related
fields like human factors analysis. In response, plaintiffs assert that Stoddard does not intend
to offer “any opinions related to the field of ‘human factors’ such as the propriety of the color,
font, or style of a warning, or a consumer’s ability or inclination to comprehend or react to a
warning label or product literature.” Br. in Opp., dkt. 135, at 10-11. Instead, say plaintiffs,
Stoddard’s opinion on warnings “concerns only the impropriety of Electrolux’s use of product
literature as a solution to a product design hazard.” Id. At 11.
I agree with plaintiffs that Stoddard’s lack of training and experience as a human factors
analyst, engineer or warnings specialist does not disqualify him from offering his opinion
whether Electrolux’s warnings were adequate. Based on his intimate familiarity with the
9
Electrolux ball-hitch dryers that are at issue in this case, Stoddard has specialized knowledge that
permits him to opine whether the warnings are adequate to address the hazards posed by the
product’s alleged defective design. Various courts have permitted similar testimony. Accord,
Tanner v. Shoupe, 228 Wis. 2d 357, 374-75, 596 N.W. 2d 805 (Wis. Ct. App. 1999) (trial court
erred in precluding witness from offering expert testimony about adequacy of defendant’s
warnings on car battery, where witness had studied car batteries for over 30 years as an auto
mechanic and consultant, had disassembled thousands of batteries and had seen hundreds of
exploded batteries and knew what caused them to explode); Pineda v. Ford Motor Co., 520 F.3d
237, 245 (3d Cir. 2008) (district court abused discretion in refusing to allow engineer to opine
that 2002 Ford Explorer’s service manual should have contained explicit warning that following
necessary step-by-step instruction for replacing liftgate brackets and hinges was safety issue;
expert did not purport to opine on how warning should be worded or how it should appear in
order to effectively convey its message to auto technician but only that proper warning would
be solution to the engineering problem he had identified). As the court observed in Pineda, 520
F.3d at 245, “a proper warning is also a solution to an engineering problem.” Having concluded
that Stoddard may offer expert testimony regarding the engineering problems posed by the
subject dryers, it follows that he may also testify regarding the adequacy of Electrolux’s warnings
as a solution to those problems.
That said, I agree with Electrolux that Stoddard’s report goes much farther than simply
assessing Electrolux’s product literature and opining whether the warning and instructions
provided therein would adequately address the design problem he has identified. In particular,
Stoddard has opined that Electrolux could have addressed the alleged warning inadequacies by
incorporating into the dryer design service reminder lights, restricted airflow notifications and
10
a “lockout feature to shut the dryer down if the warning light was ignored by the user with
conditions of poor airflow, which could only be reset by a trained servicer.” See Stoddard Rep.
in Blake, dkt. , at 104-10. Electrolux objects to this testimony on the ground that it is neither
relevant nor reliable, arguing that Stoddard’s proposed designs are theoretical only and not
supported with any data, testing or analysis to show their efficacy or feasibility in general, much
less that they would have made any difference in any of the instant cases. Br. in Supp. of Mot.
to Preclude, dkt. 128, at 24.
This criticism is well-founded. As the court of appeals noted in Cummins v. Lyle Industries,
93 F.3d 362, 368 (7th Cir. 1996):
There are a number of considerations which must inform . . . a
conclusion [that the manufacturer ought to have incorporated
alternative designs and warnings]. These include, but are not
limited to, the degree to which the alternative design is compatible
with existing systems and circuits; the relative efficiency of the two
designs; the short- and long-term maintenance costs associated
with the alternative design; the ability of the purchaser to service
and to maintain the alternative design; the relative cost of
installing the two designs; and the effect, if any, that the
alternative design would have on the price of the machine. Many
of these considerations are product- and manufacturer-specific, and
most cannot be determined reliably without testing.
Here, in contrast to his proposed guard for separating the lint from the heat source, which
Stoddard actually designed, tested and had reviewed by his peers, Stoddard’s proposed
warning/lock out system exists in “concept” form only. However, “[p]roposing an ideal situation
to a problem is not a qualification for designing or producing a practical solution to the
problem.” Flores v. DaimlerChrysler Corp., 2008 WL 822008, *3 (S.D. Tex. Mar. 26, 2008).
Additionally, Stoddard has not pointed to any other dryers that contain similar warning systems
and he has not cited any other data to support the reliability of his opinion. Finally, plaintiffs
11
have not developed any meaningful response to this objection to Stoddard’s testimony. For all
these reasons, I am not persuaded that Stoddard’s testimony regarding an alternative warning
system is reliable.
On the subject of warnings, therefore, Stoddard will be allowed to testify only as to the
adequacy of Electrolux’s existing product literature and warnings in addressing the risk posed by
the alleged design defect in its dryers. Stoddard may not testify about the feasibility of
engineered warnings systems as a solution to the problem.
III. W. Joseph Fallows
Plaintiffs have offered W. Joseph Fallows as an expert on the design and commercial use
of plastic products and the ethical standards associated with that work. Fallows is a mechanical
engineer with 30 years of marketing and industrial experience in the field of plastics engineering.
His expertise in the field of plastics engineering is undisputed. Fallows has expressed the
following opinions in this case:
1)
The subject dryers were unreasonably dangerous because they were
designed with a non-fire-retardant plastic for the air duct and
blower housing;
2)
It was reasonably foreseeable to Electrolux that the combustible
plastics in its dryers could ignite;
3)
Electrolux breached its duty of care by designing and
manufacturing dryers with a combustible and non-selfextinguishing plastic air duct and blower housing; and
4)
Electrolux violated basic engineering principles by choosing not to
make a design change after testing established that a design change
would create a safer product.
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Electrolux raises three objections to Fallows’s opinions. First, it argues that the data on
which he relies—the UL 94 Flame Ratings standards, a Wright Group video showing molten,
burning plastic seeping out of the right front burner of an Electrolux dryer and the results of a
GE fire containment test (which the subject dryers failed)–-do not logically support his
conclusion that the plastics that Electrolux used in its dryers would burn longer and pose a
greater hazard in the event of a dryer fire than other plastics that it could have used. Second,
it argues that Fallows’s opinions are irrelevant because he admits he has no knowledge regarding
the particulars of any of the dryer fires at issue in this case. Finally, it contends that Fallows is
not qualified to offer opinions on engineering ethics, and in any case, such opinions are not
admissible.
Although it is a close question, I am satisfied that Fallows has cited sufficient evidence
to support his conclusion that, should a fire ignite inside it, a dryer that contained a vent and
blower housing manufactured from the HB plastics Electrolux used would pose more of a hazard
than one containing parts made from fire-retardant 5V plastics, and further, that Electrolux had
the knowledge and the means to design this hazard out of its products. The GE containment
testing and the Wright Group’s video and observations of the burn patterns in hundreds of
Electrolux dryers arguably provide the “real world” evidence regarding fire containment that
Electrolux complains is lacking from the UL 94 standards. Electrolux will be free during cross
examination to explore the analytical gaps of which it complains, but the gaps are not so large
as to preclude Fallows from testifying altogether.
That said, I am not convinced from plaintiffs’ submissions that Fallows’s opinions are
relevant to the particular fires at issue in this case. Plaintiffs must prove not only a design defect
13
but causation. See, e.g., Insolia v. Philip Morris Inc., 216 F.3d 596, 604 (7th Cir. 2000). Although
I agree with plaintiffs that evidence of causation need not come from Fallows (who offers no
opinion on this subject), but it needs to come from someone. Presumably, plaintiffs have evidence
in at least some of the Wisconsin dryer fires that flames escaped the dryer cabinet and caused
more property damage than would have been caused if Electrolux had used fire-retardant
plastics. At this juncture, however, the court hasn’t seen it. Accordingly, like Stoddard, Fallows
may testify regarding the alleged defect posed by the use of HB plastics only upon a showing by
plaintiffs that such testimony is relevant.
Finally, I agree with Electrolux that Fallows is not qualified to offer an opinion regarding
“engineering ethics,” and in any event such testimony would not be helpful to the jury. Fallows
has no special background or expertise in the field beyond his general familiarity with the
Engineering Code of Ethics. Even if Fallows were qualified, the provision of the code that he
cites does little more than state the obvious: engineers should design products that are safe. An
expert is not needed to convey this notion to the jury. Further, permitting Fallows to opine that
Electrolux behaved “unethically” would confuse the jury and unfairly prejudice Electrolux by
implying scienter or at least allowing the jury to infer it. Ethical standards are different from the
standards the jury must apply. The jury instructions will inform the jury about the relevant legal
standards in this case. Accordingly, I find that Fallows’s ethics testimony is inadmissible under
Federal Rules of Evidence 403 and 702. Good Shepherd Manor Found., Inc. v. City of Momence, 323
F.3d 557 (7th Cir. 2003) (“[E]xpert testimony as to legal conclusions that will determine the
outcome of the case is inadmissible.”).
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IV. Dr. Eric J. Boelhouwer
Dr. Eric J. Boelhouwer is plaintiffs’ warnings expert. He holds a Ph.D. and a Master of
Industrial and Systems Engineering from Auburn University and is a member of a number of
organizations related to human factors and product safety. Dr. Boelhouwer earned a bachelor’s
degree in chemical engineering and an MBA in business administration. Since late 2010, when
he obtained his Ph.D., Dr. Boelhouwer has been employed as a consultant by Dorris &
Associates International, LLC. Part of his work involves making recommendations to clients
regarding the format, content and layout of product warnings. Dr. Boelhouwer has published
a number of papers and given multiple presentations, many of which relate to industrial chemical
safety and labeling.
A. Opinions Applicable to All Eight Cases
1. 18-Month Service Requirement
The June 2008 Use and Care Guides for the subject dryers contain a warning3 informing
users that, to prevent fire,
the interior of the dryer, lint screen housing and exhaust duct
should be cleaned approximately every 18 months by qualified
service personnel. An excessive amount of lint build-up in these
areas could result in inefficient drying and possible fire.
Dr. Boelhouwer has opined in all eight cases that this warning is inadequate to address the
alleged design defect of excessive lint accumulation behind the drum because consumers are
unlikely to comply with it. Boelhouwer draws this conclusion from a number of preliminary
3
Some of the dryers had a similar warning placed directly on them.
15
opinions, set out at pages 6-7 of his report. See, e.g., Boelhouwer Rep.-Blake, dkt. 128, ex. 10.
Electrolux challenges the following three of these sub-opinions:
1)
Electrolux failed to provide a feedback mechanism to remind
consumers as to when the last service was performed or when the
next service may be needed;
2)
The “cost of compliance” with the 18-month service requirement
is too high for many dryer owners; and
3)
Consumers have an expectation that household appliances are
typically serviced on an “as needed” basis.
Broadly speaking, Electrolux challenges Dr. Boelhouwer’s opinions as mere ipse dixit,
unsupported by any reliable testing, consumer surveys or research. Br. in Supp., dkt. 128, at 2122. In response, plaintiffs insist that Dr. Boelhouwer has done enough, and that Electrolux’s
arguments go to credibility, not reliability. Plaintiffs point to non-binding cases in which a
human factors expert’s training and experience, along with knowledge of the facts in the case,
was found sufficient to satisfy the reliability requirement, br. in Opp., dkt. 135, at 25-26 (citing
Michaels v. Mr. Heater, Inc., 411 F. Supp. 2d 992, 999-1000 (W.D. Wis. 2006) and Burks v.
Abbott Laboratories, 917 F. Supp. 2d 902, 920 (D. Minn. 2013)), and note that Electrolux’s own
expert acknowledged in a deposition in a previous case that she had derived her opinion that
Electrolux’s warnings were adequate without conducting testing or surveys, id. at 27.
As the Advisory Committee Note observes, Daubert’s factors for assessing reliability are
“neither exclusive nor dispositive” and do not apply to every type of expert opinion. See Kumho
Tire, 526 U.S. at 150; see also Tyrus v. Urban Search Mgmt., 102 F.3d 256 (7th Cir.1996) (Daubert
factors not readily applicable to testimony of sociologist). Even so, a witness relying solely or
primarily on experience still “must explain how that experience leads to the conclusion reached,
16
why that experience is a sufficient basis for the opinion, and how that experience is reliably
applied to the facts,” because “the trial court’s gatekeeping function requires more than simply
taking the expert’s word for it.” Fed. R. Evid. 702 Advisory Committee’s Notes to 2000
Amendments (citations omitted).
a. reminder mechanism
I agree with Electrolux that Dr. Boelhouwer has not bridged the analytical gap with
respect to his opinion that Electrolux’s warning on its dryers is inadequate because it does not
provide a reminder mechanism—such as a sticker on the dryer where a service technician could
record the date of service—to inform consumers when the last service was performed or the next
service may be needed.
The only support Boelhouwer offered for this opinion is his
“background, training and experience.” Boelhouwer Dep., dkt. 133, at p. 96. However, he
acknowledged that he had not done any research, conducted studies, written papers, attended
seminars or received any specific education that addressed whether consumers were unable or
unwilling to remind themselves about regular service required for a home appliance. Id. at 9899. Further, he could point to no study, paper or survey by others that supported his opinion
that a warning lacking such a reminder mechanism is inadequate. Id. at 133. Apart from new
automobiles, he could not identify other products containing such reminder mechanisms, id. at
97, and he made no attempt to compare Electrolux’s warning to those of other dryer
manufacturers. Id. at 118.
As the court indicated in United States v. Benson, 941 F.2d 598, 604 (7th Cir. 1991),
“[a]n expert's opinion is helpful only to the extent the expert draws on some special skill,
17
knowledge, or experience to formulate [his] opinion; the opinion must be an expert opinion (that
is, an opinion informed by the witness's expertise) rather than simply an opinion broached by
a purported expert.” Here, there is nothing to indicate that Dr. Boelhouwer’s opinion passes this
test. He may have education, training and experience in the field of human factors, but his
testimony offers no assurance that his conclusion about the reminder mechanism was informed
by this expertise.4 Accordingly, his testimony on this point shall be precluded.
b. cost of compliance
It is a closer question whether to allow Dr. Boelhouwer to testify as to his opinion that
the “cost of compliance” with the 18-month service requirement is too high for many dryer
owners. Unlike his gratuitous opinion regarding the reminder mechanism, Dr. Boelhouwer
pointed to the following data and scholarly research that informed this conclusion: 1) a
September 2010 survey of 358 dryer owners by the Consumer Product Safety Commission,
which found that “[a] service call to clean the accumulated lint within the dryer can be costly
and inconvenient to the customer, and therefore the consumer may overlook performing this
maintenance task until there is an operating problem with the dryer, which may lead to a higher
risk of fire”; 2) Dr. Boelhouwer’s review of depositions of approximately 100 dryer-fire litigants,
from which he found that it was not their custom or practice to call qualified service personnel
to service their dryers at 18-month intervals; and 3) two scholarly articles, one written by
Dingus, Hathaway and Hunn in 1991 and one written by Rogers, Lamson and Rousseau in
4
Apart from this, it is difficult to reconcile his criticism of the lack of a reminder mechanism with his
testimony that dryer users ordinarily will not comply with the 18-month service requirement in any
event because they view the cost of compliance to be too high.
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2000, which posit that cost of compliance is a barrier to achieving warnings compliance and is
one of the most consistent findings of warnings research.
Electrolux does not challenge the findings of the scholarly articles or Boelhouwer’s
reliance on them, but insists that neither the CPSC survey respondents nor the Electrolux
owners whose dryers caught on fire can be deemed a statistically valid sample of dryer owners.
Therefore, Electrolux argues, Boelhouwer has no reliable basis for his conclusion that the costs
of complying with the 18-month service requirement is too high for many dryer owners.
Electrolux does not point to any contrary evidence or surveys that Dr. Boelhouwer failed to
consider, but suggests that Dr. Boelhouwer should have conducted his own survey before
drawing his conclusions.
Although I agree that the data from which Boelhouwer draws his conclusion is somewhat
flimsy, when determining whether an expert’s testimony is reliable, the court looks to whether
the expert used the same level of intellectual rigor in the courtroom that he would have used in
the field. Here, there is no evidence suggesting that Dr. Boelhouwer failed to do so. Notably,
Dr. Boelhouwer testified that it is customary in the field of warnings analysis to consider studies
or surveys conducted by others in order to gain background information about consumers’ habits
with respect to specific products, and that conducting independent studies is not done in every
case. Boelhouwer Dep., dkt. 128, exh. 12 at 63. Further, although “statistical validity” may be
a necessary benchmark in certain fields of research, Electrolux presents no evidence to suggest
that this is true for the discipline of “human factors,” which has been described as “a discipline
that incorporates a study of human behaviors, limitations and capabilities into the design of
products, systems and equipment.” Winters v. Fru-Con Inc., 498 F.3d 734, 741 (7th Cir. 2007).
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The CPSC survey and the first-hand reports of 100 dryer owners, though perhaps not
representative of the average dryer owner, provide at least some data regarding the habits of
“many” dryer owners, which is how Boelhouwer phrased his opinion regarding the costs of
compliance. Combined with the scholarly research on costs of compliance and Dr. Boelhouwer’s
education and training, they are sufficient to substantiate Boelhouwer’s “cost of compliance”
opinion. See Daubert, 509 U.S. at 590 (expert must have “‘good grounds,’ based on what is
known” for his conclusions).
c. consumers’ “expectations” regarding household appliances
I do not reach the same conclusion with respect to Dr. Boelhouwer’s opinion that
consumers have an expectation that household appliances are typically serviced on an “as
needed” basis. Here, Dr. Boelhouwer paints too broadly, offering an opinion that goes beyond
the habits of “many” dryer owners and speaks to the habits of all consumers with respect to all
household appliances.
In this instance, the CPSC survey and the dryer fire litigant
depositions—which are the only two pieces of data on which Dr. Boelhouwer relies for his
opinion---are too slender a thread on which to hang his broad conclusions about consumer
behaviors in general with regard to household appliances in general. Although plaintiffs tout Dr.
Boelhouwer’s expertise as a “human factors” expert, they point to nothing in his training or
experience that qualifies him to offer such a wide-ranging opinion, which presumably could be
tested with surveys or research.
In short, Dr. Boelhouwer’s opinion regarding consumers’ expectations as to when they
need to service household appliances is not reliable enough to be admissible.
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2. Proposed Feedback System
As an alternative to the 18-month service instruction, Dr. Boelhouwer opines that
Electrolux should have designed its dryers to include a “feedback system” to alert consumers
about the increasing risk of lint accumulation. Dr. Boelhouwer describes such a system as “an
indicator light on the control panel in combination with a word message to inform the dryer
what actions needed to be taken to reduce the risk of fire.” Br. in Supp., dkt. 128, exh. 10,
Boelhouwer Rep.–Blake, at 7.
I agree with Electrolux that Dr. Boelhouwer is not qualified to offer this opinion. Again,
plaintiffs’ argument in support of admissibility rests solely on Dr. Boelhouwer’s “expertise”
regarding warnings and on a non-binding case with inapposite facts. Whereas the human factors
expert in Smith v. Ingersoll-Rand Co., 214 F.3d 1235, 1243 (10th Cir. 2000) offered the rather
commonsensical opinion that the milling machine at issue could have been made safer by the
simple addition of mirrors that would enable the operator to view the groundsmen on either side,
here the vague “feedback system” that Dr. Boelhouwer proposes is much more complex and
product-specific. Dr. Boelhouwer has no relevant engineering or design experience regarding
such feedback systems, he did not attempt to construct one and he did not analyze whether and
with what success such a system had been used by other manufacturers. Accord Jaurequi v. Carter
Mfg. Co., Inc., 173 F.3d 1076, 1084 (8th Cir. 1999) (Excluding expert testimony that “warnings
were deficient in placement, design, orientation, and content” as unreliable because “[n]either
[expert] had created or even designed a warning device which would have been more appropriate,
much less tested its effectiveness.”). Further, Dr. Boelhouwer could not point to any relevant
training, experience or research on his part that would qualify him to opine that his theoretical
21
system would be any more effective than the warnings already provided—warnings which he
claims that consumers will ignore. All told, Dr. Boelhouwer is not qualified to offer his opinion
regarding his proposed feedback system, and even if he was, the opinion is not reliable.
B. Case-Specific Opinions
Finally, Dr. Boelhouwer will not be permitted to testify regarding his opinions regarding
foil duct (in the Donahue and Freeman cases) and the “risk of fire” warnings (in the Larson and
McCants cases). As Electrolux correctly argues (at dkt. 128, 25-26), neither of these opinions
is supported by any authority or analysis and would not be helpful to the jury. Plaintiffs do not
argue otherwise or offer any meaningful response to Electrolux’s objection apart from their
blanket assertion that Boelhouwer is a qualified expert in the field of human factors analysis.
As already noted, this is not enough.
ORDER
IT IS ORDERED THAT:
The motion of defendant Electrolux to exclude the testimony of W. Joseph Fallows,
Michael Stoddard and Eric J. Boelhouwer is GRANTED IN PART and DENIED IN PART, as
more specifically explained in the preceding opinion.
Entered this 25th day of June, 2014.
BY THE COURT:
/s/
STEPHEN L. CROCKER
Magistrate Judge
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