Rogers, Steven et al v. K2 Sports USA et al
Filing
253
ORDER granting in part and denying in part plaintiffs' 139 Motion to Strike Opinion Testimony; granting in part and denying in part defendant's 102 Motion for Summary Judgment. Granting with respect to plaintiffs' claims for breach of warranty; granting in part plaintiffs' 149 Motion for Summary Denial of Defendant's Motions. Denying defendant's motion to produce ski goggles and to sanction plaintiffs for spoliation; granting 250 Stipulation of Dismissal. All claims as to defendants Lexington Insurance Company and AIG Europe Limited are dismissed. Signed by District Judge James D. Peterson on 12/28/2018. (jls)
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF WISCONSIN
STEVEN SCOTT ROGERS, by his guardian,
Tracy Rogers, TRACY ROGERS, SAMBA HEALTH
BENEFIT PLAN, BLUE CROSS BLUE SHIELD
OF WISONSIN, and STATE OF WISCONSIN
DEPARTMENT OF HEALTH SERVICES
Plaintiffs,
OPINION & ORDER
17-cv-534-jdp
v.
K2 SPORTS, LLC, LEXINGTON INSURANCE
COMPANY, and AIG EUROPE LIMITED,
Defendants.
Plaintiff Steven Scott Rogers fell while skiing and suffered a serious brain injury. Scott
and his wife, plaintiff Tracy Rogers, contend that Scott’s helmet, made by defendant K2 Sports,
was defectively designed and that the defect was a cause of his injury. They have sued K2 for
negligence, strict product liability, and breach of warranty. Dkt. 32. Tracy also claims loss of
consortium as a result of her husband’s injuries.1 K2 denies that the helmet was defective,
contending instead that the helmet was the wrong size and that Scott had not properly fastened
it, and that he was injured by direct contact with the ground.
1
Plaintiffs Samba Health Benefit Plan, Blue Cross Blue Shield of Wisconsin, and State of
Wisconsin Department of Health Services all paid for Scott’s medical treatment and claim to
be subrogated to Scott’s rights. Dkt. 1-1, ¶¶ 5–6; Dkt. 43, ¶ 3. The parties have stipulated to
the dismissal of defendants Lexington Insurance Company and AIG Europe Limited. Dkt. 250.
K2 moves for summary judgment on all of plaintiffs’ claims. Dkt. 102. Plaintiffs oppose,
and they move to strike defendant’s experts’ opinions that the helmet moved out of position
when Scott fell. Dkt. 139.
At the heart of this case is a straightforward dispute about the role of the helmet in
Scott’s injury. The court will limit the testimony of K2’s experts about how the injury occurred
because some of those opinions are too speculative. But that still leaves genuine disputes about
the fit of the helmet and whether it was properly designed, so K2’s motion for summary
judgment will be denied.
UNDISPUTED FACTS
The following facts are undisputed except where noted.
Scott wore a K2 Phase 08 helmet while skiing with his stepson Coby at the Afton Alps
Ski Area in Washington County, Minnesota, on New Year’s Eve 2015. Around 8:40 p.m., Scott
and Coby skied down a beginner’s run called Nancy’s Nursery. Scott fell about halfway down
the hill near some small mounds called “rollers.” Coby was in front of Scott and did not witness
the fall. Another skier did witness the fall, but he was not able to recall any details about it,
except that the fall did not seem unusual.
The fall left Scott unconscious and bleeding from his left ear. Scott was taken by
ambulance to a hospital, where doctors conducted tests including a CT scan of Scott’s head.
The accident caused brain hemorrhages and fractured Scott’s skull, left clavicle, and numerous
ribs along Scott’s left side. As a result of permanent brain damage caused by the accident, Scott
now lives at a VA hospital where he receives round-the-clock care.
2
The K2 helmet was certified as compliant with the standards of ASTM International,
which is an organization that develops and publishes technical standards for a wide range of
products.2 Compliance with ASTM standards is voluntary. The K2 helmet has three layers.
The exterior layer is a hard-plastic shell. The shell is lined with an Expanded Polystyrene (EPS)
energy-attenuating layer, which is supposed to absorb and dissipate shock from a blow to the
head. The third layer is a comfort liner that can be adjusted to fit on the user’s head. After
Scott’s accident, the lower left rear of the exterior shell was cracked. And, in the same area, the
shock-absorbing EPS layer was flattened, and chunks of the EPS were missing.
The parties sharply dispute what happened to the helmet when Scott fell. K2 contends
that the helmet was improperly fit and not properly fastened. K2’s theory is that as Scott fell,
his helmet shifted out of place and the left posterior region of his head was exposed and directly
hit the ground. Dkt. 144, ¶ 38. K2 contends that the helmet only partially protected Scott’s
head, and that the point of impact on the helmet was below the “test line,” which is the lower
limit of the area that is supposed to be protected under ASTM standards. K2 also contends
that pictures from the day of the accident show that Scott failed to tighten the helmet’s
chinstrap. Id., ¶ 39.
Plaintiffs contend that the helmet did not actually meet ASTM standards. Plaintiffs’
theory is that the bottom rear of the helmet was excessively tapered at the test line. As a result
of the tapering, the helmet did not afford sufficient protection against a blow such as the one
Scott suffered. Plaintiffs also contend that the helmet was the right size for Scott.
2
See Detailed Overview, ASTM International, www.astm.org/ABOUT/full_overview.html
3
ANALYSIS
K2 moves for summary judgment on the grounds that plaintiffs cannot prove that
Scott’s K2 helmet was defective or that it caused Scott’s injuries. In connection with their
opposition to K2’s motion, plaintiffs move to strike parts of K2’s expert evidence. The court
begins with plaintiffs’ challenge to the expert evidence.
A. Plaintiffs’ motion to exclude expert evidence
Under Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993), and Kumho Tire
Co. v. Carmichael, 526 U.S. 137, 147 (1999), the court must serve as a gatekeeper to ensure
that proffered expert testimony meets the requirements of Federal Rule of Evidence 702.
Essentially, the gatekeeping function consists of a three-part test: the court must ensure that
the expert is qualified, that the expert’s opinions are based on reliable methods and reasoning,
and that the expert’s opinions will assist the jury in deciding a relevant issue. Myers v. Ill. Cent.
R. R. Co., 629 F.3d 639, 644 (7th Cir. 2010). The proponent of expert evidence bears the
burden of establishing that the expert’s testimony is admissible. Lewis v. CITGO Petroleum Corp.,
561 F.3d 698, 705 (7th Cir. 2009).
Plaintiffs move to strike aspects of the expert reports of P. David Halstead and Irving
Scher. Although plaintiffs dispute Halstead’s qualifications, the main question is whether
Halstead and Scher used reliable methodologies and reasoning. The admissibility inquiry
undertaken by the court “must be ‘tied to the facts’ of a particular case.” Kumho, 526 U.S. at
at 150 (quoting Daubert, 509 U.S. at 591). The “critical inquiry” for admissibility is whether
the opinion is rationally connected to the underlying data or “connected to the existing data
‘only by the ipse dixit of the expert.’” Gopalratnam v. Hewlett-Packard Co., 877 F.3d 771, 781
4
(7th Cir. 2017). Expert testimony that merely asserts a “bottom line” or provides testimony
based on subjective belief or speculation is inadmissible. Metavante Corp. v. Emigrant Sav. Bank,
619 F.3d 748, 761 (7th Cir. 2010).
1. P. David Halstead
P. David Halstead is the Technical Director of Southern Impact Research Center.
Halstead conducted a series of drop tests to try to replicate the damage on Scott’s helmet, and
thereby to determine the amount of force that the helmet and Scott experienced at the time of
Scott’s fall. Dkt. 110, at 6. Halstead offers two main opinions: (1) that the helmet was not
defective, and (2) that the helmet was out of place at the time of the accident. Plaintiffs move
to strike three aspects of Halstead’s report. Dkt. 137, at 6–7.
First, plaintiffs move to strike Halstead’s opinion that the helmet was out of position at
the time of the accident. Halstead expresses that opinion in various forms:
•
“It is my opinion that Mr. Rogers’ injuries were caused by
complex fall kinematics that resulted while his helmet was out
of position (rotated slightly to the left and possibly higher on
the right) exposing his temporal bone in the area he sustained
the mastoid fracture.” Dkt. 110, at 7.
•
“Mr. Rogers sustained his injuries when his partially
helmeted head, with the mastoid area of the temporal bone
exposed, made contact with a somewhat compliant surface
such as snow substantially similar to the snow measured at
Afton Alps.” Id. at 9.
•
“The skull fracture is a result of functionally direct contact
with the impact surface to the mastoid area.” Id.
•
“Given the test results had the helmet been in position the
skull fracture almost certainly would not have occurred.” Id.
The court agrees with plaintiff that Halstead has not shown that this opinion is rationally
connected to underlying data.
5
Halstead conducted a series of drop tests using K2 Phase 08 helmets, the same model
as Scott’s helmet. Id. at 6. Under the ASTM standards, a helmet must keep the user’s head
from accelerating more than 300 g, meaning that the force of impact on the skull is equivalent
to 300 times the force of gravity or less. Dkt. 124-13, at 3. Although these drop tests were not
testing for ASTM compliance, Halstead used 300 g as a threshold for the helmet’s effectiveness.
Halstead conducted eleven tests by dropping helmets on to a modular elastomer programmer
(MEP), a rubber pad that is somewhat harder than packed snow. Dkt. 110, at 6. None of the
drops resulted in an acceleration of more than 181 g or damaged the helmet in a way that
resembled the damage to Scott’s helmet. So Halstead conducted three more tests using a
harder, steel anvil. Id. at 6. One of these drops did crack the helmet, but the damage was still
not as severe as Scott’s helmet.
Halstead opined that because his tests could not replicate the damage to Scott’s helmet,
Scott’s helmet must not have been in place on Scott’s head at the time of the accident. Id. at
8–9. Halstead did not conduct any follow-up testing; he did not, for example, try dropping the
helmet while it was out of place on the headform or try dropping the helmet without using a
full-sized headform. Instead, Halstead scanned both the accident helmet and the most severely
damaged test helmet with a laser. Id. After eyeballing the results of the laser scan, Halstead
again concluded that the damage did not match and that therefore the helmet was not in place
at the time of the accident. He opined specifically that the helmet rotated to the left, exposing
the area where Scott’s skull was fractured.
Two factors that a court may consider regarding the admissibility of expert testimony
are whether the expert “unjustifiably extrapolated from an accepted premise to an unfounded
conclusion” and whether “the expert has adequately accounted for obvious alternative
6
explanations.” Gopalratnam, 877 F.3d at 788 (quoting Fuesting v. Zimmer, Inc., 421 F.3d 528,
534–35 (7th Cir. 2005)). Both factors support striking Halstead’s opinion here. When
Halstead’s test results failed to re-create the damage to Scott’s helmet, Halstead had a basis for
concluding that Scott’s fall was in some way atypical. But he had no foundation to then
extrapolate from these results that the helmet was therefore out of position. And he was even
less justified in hypothesizing on the helmet’s exact orientation during the accident. Halstead
did not confirm his hypothesis through additional testing, nor did he address alternative
explanations for the damage to Scott’s helmet, such as the existence of a manufacturing defect
or a weakening of the helmet through multiple impacts. And his use of laser scanning provided
no additional details to support his hypothesis. Halstead simply picked one possible
explanation for the test results and then assumed it was true. Halstead concedes that he is not
an expert in the “full body kinematics” that are critical to understanding how Scott was injured.
Dkt. 110, at 7.
Second, plaintiffs move to strike Halstead’s opinion regarding the speed and force of
impact on Scott’s head at the time of the accident:
Based on biomechanical testing the likely impact speed of his
head to the surface was 13–14 mph or higher, head accelerations
were in the range of 170 g – 220 g with angular acceleration
between 7000–8000 rad/sec2.
Dkt. 110, at 7. The court will strike this opinion. Rule 702 places the responsibility on the
expert to explain how his methodologies support his opinions. Metavante, 619 F.3d at 761.
Although not explicitly stated, Halstead appears to have adopted these numbers from the
results of his tests on the MEP pad. Dkt. 110, at 6. But as Halstead emphasized in his report,
the tests on the MEP pad were unable to replicate Scott’s accident. It is not clear why the
7
speeds and forces of impact must nonetheless be correct, and Halstead does not provide an
explanation.
Third, plaintiffs move to strike Halstead’s opinion regarding the helmet’s ability to
protect against high-speed impact:
“As the biomechanical testing shows the helmet, at its thinnest,
well below the test line is able to take an impact at nearly 14 miles
per hour with a hemi anvil and still remain under 300g.”
Id. at 7. The court will not strike this opinion, which is based on the test results. Plaintiffs
suggest that Halstead is not qualified to provide “biomechanical engineering opinions,” but in
their reply brief, plaintiffs concede that Halstead is an experienced technician who is qualified
to conduct the type of drop testing he performed. Dkt. 151, at 2.
The bottom line is that the court will consider Halstead’s drop testing analysis, but it
will not consider his testimony that the helmet was out of place at the time of the accident.
2. Irving Scher, Ph.D., P.E
Irving Scher is a biomechanical engineer at Guidance Engineering and Applied
Research. Scher’s report includes two separate sets of conclusions that are relevant to summary
judgment. First, Scher used computer models to determine the fit and looseness of the helmet
that Scott wore. Second, Scher conducted a biomechanical engineering analysis to determine
the “kinematics” of the accident—the movement of Scott’s body and ski equipment according
to the laws of physics. Plaintiffs move to strike both sets of conclusions. Dkt. 137, at 7–8.
a. Helmet fit
Scher opines that the helmet was poorly fit and that it was loose enough to move out
of place:
•
“Mr. Roger’s head circumference at the hat line is
approximately 57 centimeters. Because the head size
8
recommended for the subject helmet ranges from 59 to 62,
Mr. Rogers’ head was at or below the lower end of the subject
helmet’s size.” Dkt. 107, ¶¶ 10-12.
•
“At the level of the helmet brim there was at least 2 to 4
centimeters of free space between Mr. Rogers’ head and the
helmet in the anterior-posterior direction, and the helmet had
space to rotate 20 degrees clockwise and counter-clockwise.”
Id. ¶ 13.
•
“The subject helmet was not snugly fitted to Mr. Rogers’
head.” Id. ¶ 14.
These opinions are rationally connected to the reasonably reliable data that Scher considered;
the court will not strike them.
Scher created a 3D computer model of Scott’s head from the CT scans on the night of
Scott’s accident. Dkt. 112, at 15. Using this model, Scher calculated circumference of Scott’s
head as 57 centimeters. Because the helmet that Scott purchased was recommended for head
circumferences of 59 to 62 centimeters, Scher opined that Scott’s helmet was one size too large.
Scher scanned an exemplar K2 helmet of the same size as Scott’s helmet. Within his computer
modeling software, Scher placed the 3D model of the helmet on the 3D model of Scott’s head.
Scher determined that there was at least 2.25 centimeters of free space between Scott’s head
and the interior of the helmet, and that with this extra space the helmet could freely rotate 20
degrees clockwise and counterclockwise. Finally, Scher viewed photographs of Scott on the day
of the accident and determined that Scott’s chin strap was “loose.” Id. at 16. Scher’s analysis
of the helmet’s fit led Scher to conclude that it was possible for the helmet to move out of
position and expose a portion of the posterior region of Scott’s head.
Plaintiffs contend that Scher’s analysis is unreliable because Scott’s head actually has a
circumference of 60 centimeters, not 57 centimeters. Plaintiffs’ measurement comes from
9
Tracy’s declaration that she measured Scott’s head with a tape measure. Dkt. 123, ¶¶ 7–8.3
Neither party adduces evidence showing that the other party’s measurement is manifestly
incorrect, so the size of Scott’s head is a matter of genuine dispute.4 Such a dispute does not
render Scher’s opinion inadmissible.
b. Kinematics analysis
Scher also offered opinions about how Scott fell and how he was injured, which Scher
refers to as a “kinematics” analysis. He expresses those opinions as follows:
•
“Mr. Rogers likely caught his ski edge, fell forward and
leftward while rotating clockwise and continuing downhill,
and contacted the left, posterior region of his helmeted head
on his acromioclavicular joint and proximal humerus, a very
rigid area of hard-packed snow, or both.” Dkt. 112, at 36.
•
“Because the helmet was not snug on Mr. Rogers’s head and
he did not adjust appropriately the chin strap, the subject
helmet was able to (and did) move out of position during Mr.
Rogers’s fall and subsequent head impact.” Id.
•
“No snowsport helmet would be able to prevent the injuries
sustained by Mr. Rogers in the subject accident.” Id.
•
“The subject helmet rotated axially counterclockwise and
rightwards on Mr. Rogers’ head during his fall such that his
helmet was out of place and exposed a portion of the left
3
K2 objects that this is untimely and unreliable expert testimony. The evidence is vulnerable
to impeachment, but it is not expert evidence. The court will allow plaintiffs to submit evidence
of the size Rogers’ head.
4
Plaintiffs contend that Scher did not follow the K2 head-measurement instructions, but their
argument is based solely on a flier that plaintiffs downloaded from a third-party website.
See Dkt. 124, ¶ 58; Dkt. 124-19. Because plaintiffs have produced no evidence that this flier
originated from K2, K2 objects that it is inadmissible under Federal Rule of Evidence 901.
However, even if the flier were admissible, it does not affect the admissibility of Scher’s
testimony. According to plaintiffs, the flier shows that Scher should have measured Scott’s
head at a lower location. But the flier uses a cartoon drawing to show the correct position to
measure the head circumference, and the cartoon is not clearly different from the position
where Scher measured Scott’s head. Tracy claims that she measured Scott’s head in the same
location as Scher. Dkt. 123, ¶¶ 7–8. Tracy does not claim she used this flier.
10
posterior region of his head just prior to impact.” Dkt. 107,
¶ 9.
•
“Mr. Rogers failed to properly tighten the subject helmet’s
chin strap, which allowed the subject helmet to move out of
position as he fell.” Id. ¶ 15.
•
“Immediately before Mr. Rogers’ head contacted the ground,
the subject helmet moved out of position, causing the point
of impact to be below the helmet’s test line.” Id. ¶ 18.
•
“In my professional opinion, any snow sport helmet with a
similar fit and loose chin strap on Mr. Rogers’ head would
have similarly moved relative to his head in the subject fall.”
Id. ¶ 20.
The court will not consider these opinions because they are too speculative: there is simply not
enough information about how Scott fell to support this analysis.
Based on the assumption that “catching an edge” is a common occurrence among skiers,
and the location and severity of Scott’s injuries, Scher created a computer simulation using the
computer program MADYMO. Scher ran several simulations in MADYMO, using different
estimates for Scott’s speed and the conditions on the ski slope. Id. at 29. He tweaked the
variables in the simulation until he was able to create a simulation that could result in injuries
similar to Scott’s injuries. Then based on that simulation, he opined on Scott’s body
movements as he fell, and the forces that Scott experienced when he hit the ground. Scher
opines both that Scott’s helmet hit the ground below the test line, and that Scott hit the ground
with such force that no helmet could have prevented Scott’s injuries.
Scher’s simulation, and the opinions based on it, are inadmissible because they are
based on guesswork rather than the facts of Scott’s accident. An expert must show that he has
sufficient data to use the methodology employed. See Gopalratnam, 877 F.3d at 781 (Rule 702
requires the underlying data to be both qualitatively and quantitatively sufficient to conduct
11
the analysis). Opinions that are based on speculation are inadmissible. Metavante, 619 F.3d at
761. Here, there was no witness who could describe the moments leading up to the fall, no
measurement or even estimate of Scott’s speed at the time of the fall, and no reliable evidence
of Scott’s skiing abilities or style. The court will exclude the opinions expressed on pages 21
through 31 of Scher’s report. Dkt. 112.
Scher is free to testify that the helmet was loose and that it might have moved out of
position. And he can testify that based on Halstead’s testing, and based on the literature
regarding head injuries and ski accidents, it seems unlikely that a typical fall could have caused
the injuries that occurred. But Scher cannot speculate that the helmet actually moved or opine
on the exact location of the helmet at the time of impact.
B. K2’s motion for summary judgment
Plaintiffs bring claims under theories of strict product liability, negligence, breach of
warranty, and loss of consortium. K2 moves for summary judgment on all of plaintiffs’ claims.
The court will grant summary judgment on only the breach of warranty claims, which plaintiffs
waive. Genuine disputes of material fact preclude summary judgment on the other claims.
1. Summary judgment standard
Summary judgment is appropriate only if there is no genuine dispute as to any material
fact. Fed. R. Civ. P. 56(a). In ruling on a motion for summary judgment, the court views all
facts and draws all inferences in the light most favorable to the non-moving party. Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). Summary judgment will not be granted unless
“the record taken as a whole could not lead a rational trier of fact to find for the non-moving
party.” Sarver v. Experian Info. Sols., 390 F.3d 969, 970 (7th Cir. 2004) (quoting Matsushita Elec.
Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586-87 (1986)).
12
2. Strict Product liability claim
Wisconsin product liability law is codified under Wisconsin Statute § 895.047.5 A
product liability claim has five elements: (1) the product was defective; (2) the defect rendered
the product unreasonably dangerous; (3) the defect existed when the product left the control
of the manufacturer; (4) the product reached the consumer without substantial change; and
(5) the defect caused the claimant’s damages. Wis. Stat. § 895.047(1). K2 contends that they
are entitled to summary judgment because plaintiffs cannot show that the helmet had a defect
that rendered it unreasonably dangerous and because plaintiffs cannot show that the alleged
defect caused Scott’s injuries.
There are three different categories of defects under the statute: design defects,
manufacturing defects, and warning defects. Plaintiffs concede that they do not have evidence
of a manufacturing defect, but they bring alternative claims for defective design if the helmet
was in place during the accident and defective warning if the helmet fell out of place before the
impact. Under the first theory, plaintiffs must show that the helmet had a design defect that
caused Scott’s injuries to be worse than they would have been without the defect. Under the
second theory, plaintiffs must show that the helmet’s instructions did not warn users to tighten
the chinstrap. K2 seeks summary judgment as to both theories.
5
The Wisconsin Supreme Court has not stated whether preexisting common law still applies
where consistent with the product liability statute. One federal court analyzed the legislative
history and determined that it does. Janusz v. Symmetry Med. Inc., 256 F. Supp. 3d 995, 1001
(E.D. Wis. 2017). Because both parties cite common law that predates the statute, and because
there is no authority to the contrary, the court will assume that Wisconsin’s common law still
applies at least where it does not contradict the terms of the statute.
13
a. Defective design
Defendants contend that plaintiffs cannot adduce evidence of a design defect and that,
even if a defect exists, plaintiffs cannot show that it caused Scott’s injuries. The court will
address each element in turn.
i.
Unreasonably dangerous defect
Summary judgment is inappropriate when resolution of a claim requires the court to
choose between opposing expert testimony. See Wipf v. Kowalski, 519 F.3d 380, 385 (7th Cir.
2008) (explaining that “in a case of dueling experts . . . it is left to the trier of fact . . . to decide
how to weigh the competing expert testimony”). That is the case here. Both parties hired
experts to test K2 helmets according to ASTM standards, but the experts disagree on the testing
procedures and achieved different results.6
Under Wisconsin’s product liability statute, a product is defective in design if the
“foreseeable risks of harm posed by the product could have been reduced or avoided by the
adoption of a reasonable alternative design by the manufacturer and the omission of the
alternative design renders the product not reasonably safe.” Wis. Stat. § 895.047(1)(a).
K2 contends that plaintiffs have not shown any evidence of a design defect. But
plaintiffs’ expert, Mariusz Ziejewski, provides evidence sufficient to support a reasonable jury
verdict that a foreseeable risk of harm could have been reduced by the adoption of a reasonable
alternative design. Ziejewski’s report states that due to tapering at the edge, the K2 helmet
does not provide the protection required by ASTM standards when struck in the lower back.
Dkt. 116; Dkt. 124-7. Ziejewski further states that other helmets without this tapering do
6
K2’s expert, Halstead, conducted ASTM testing in addition to the tests at issue in plaintiffs’
motion to strike. Dkt. 110, at 5. Plaintiffs do not move to strike Halstead’s ASTM test results.
14
provide the protection required by ASTM. This makes the K2 helmet more dangerous than
helmets from K2’s competitors.
K2 argues that Ziejewski’s report is insufficient to establish a design defect because the
report does not specifically opine that the design of the K2 helmet rendered it “not reasonably
safe” or “unreasonably dangerous.” Dkt. 103, at 12. But an expert does not need to parrot the
exact language used in the statute. See In re Zimmer Nexgen Knee Implant Prod. Liab. Litig., 218
F. Supp. 3d 700, 725 (N.D. Ill. 2016), aff’d sub nom. In re Zimmer, NexGen Knee Implant Prod.
Liab. Litig., 884 F.3d 746 (7th Cir. 2018) (“Plaintiffs are not required to put forth an expert to
say the magic words . . . But Plaintiffs must provide sufficient evidence to allow a jury to reach
that conclusion without resorting to speculation”) (applying Wisconsin law). A jury could use
the evidence in the report to find that the increased danger posed by the K2 helmet’s tapering
is unreasonable.
K2 also contends that to establish a design defect, plaintiffs must show that the K2
helmet failed the ASTM standards that were in effect at the time of manufacturing. K2 argues
that Ziejewski instead tested the K2 helmet according to current ASTM testing procedures.
Ziejewski concedes that he used the updated procedures, but he argues that it is more accurate
than the old testing standard. Dkt. 124, ¶¶ 22–23. Plaintiffs need to show only that a
reasonable alternative design would have eliminated the risk of harm. Ziejewski tested multiple
helmets using the same test methods and concluded the K2 helmet failed where alternative
designs did not.
The ASTM standards may be relevant, but they are not dispositive. If the ASTM
standards were adopted by federal or state law, then K2 would be entitled to a rebuttable
presumption that the helmet was not defective. Wis. Stat. § 895.047(3)(c). But the ASTM
15
standards are only voluntary. Compliance with voluntary standards at the time of
manufacturing may be evidence that K2 behaved reasonably, in defense of plaintiffs’ negligence
claim. See Michaels v. Mr. Heater, Inc., 411 F. Supp. 2d 992, 997 (W.D. Wis. 2006) (citing Getty
Petroleum Marketing, Inc. v. Capital Terminal Co., 391 F.3d 312, 326 (1st Cir. 2004)). So, at trial,
K2 can raise this defense in response to plaintiffs’ negligence claim. But it is only a piece of
evidence that the jury may weigh when deciding whether defendants met their duty to exercise
reasonable care. Id.
ii.
Causation
K2 also contends that it is entitled to summary judgment because the helmet was out
of place at the time of impact, so plaintiffs cannot show that any alleged defect caused Scott’s
injuries. The location of the helmet at the time of the accident is sharply and genuinely
disputed, so that theory provides no basis for granting summary judgment to K2.
Nevertheless, K2 contends that even if the helmet was in place, it is still entitled to
summary judgment because no helmet could have prevented Scott’s injury because preexisting
injuries made him particularly vulnerable. This theory provides no basis for granting summary
judgment to K2 either.
K2 adduces some evidence that Scott had suffered previous head injuries. Dkt. 144,
¶¶ 45–50. But K2 has scant evidence that the prior injuries were serious ones. More important,
K2 does not adduce any evidence to support the outlandish statement in its brief that “no
helmet would have been able to prevent the injuries he sustained on December 31, 2015.” Dkt.
103, at 10. K2’s own proposed findings of fact undermine this idea:
Had Mr. Rogers not been wearing a helmet, his brain injury would
have been at least as severe if not more severe than it was on
December 331, 2015, leaving him with worse permanent
16
residuals or traumatic brain injury, or could have even adversely
impacted his survival.
Dkt. 144, ¶ 51. K2 also says that plaintiffs’ expert Ziejewski “concedes that an alternative
design would not have prevented Mr. Rogers from suffering a traumatic brain injury or a
subdural hematoma in the subject incident.” Dkt. 103, at 11 (citing Dkt. 144, ¶ 28). As
plaintiffs point out, K2 has grossly misstated the substance of Ziejewski’s deposition testimony
in this proposed fact. Ziejewski testified that a properly designed helmet would have prevented
a subdural hematoma, a level 4 injury. Ziejewski acknowledged that even with a properly
designed helmet, “mild traumatic brain injury” was still a possible or likely outcome. Dkt. 122,
at 28:21–29:25.
b. Defective Instructions
Plaintiffs’ alternative theory is that if the helmet slipped out of place before impact, it
slipped because of defective instructions. Under Wisconsin’s product liability statute, a product
is defective because of inadequate instructions or warnings if “foreseeable risks of harm posed
by the product could have been reduced or avoided by the provision of reasonable instructions
or warnings by the manufacturer and the omission of the instructions or warnings renders the
product not reasonably safe.” Wis. Stat. § 895.047(1)(a). Plaintiffs do not need to show that
Scott actually read the instructions to prove causation. When a product is missing an adequate
warning, the missing warning is a substantial factor in causing injury if a reasonable person
would have heeded the warning and as a result avoided injury. Michaels, 411 F. Supp. 2d at
1006 (citing Tanner v. Shoupe, 228 Wis. 2d 357, 596 N.W.2d 805, 817–18 (Ct. App. 1999)).
There is a presumption that any missing instructions would have been read, and therefore a
presumption of causation. Id.
17
Throughout its briefing, K2 contends that the looseness of Scott’s chinstrap was a factor
that caused the helmet to slip out of place. Plaintiffs contend that any mistake by Scott in
tightening his chinstrap was caused by the fitting instructions included with the helmet. The
helmet’s instructions state that the helmet should be snug and that after adjusting the straps
and pads, “the skin on your forehead should move with the helmet.” Dkt. 145, ¶ 10. The
instructions do not include specific directions on the tightness of the chinstrap. A reasonable
jury could find that this instruction does not warn consumers that they need to tighten the
chinstrap in addition to adjusting the pads and comfort liner.
K2 contends that plaintiffs are required to adduce expert testimony regarding the
effectiveness of product warnings. Dkt. 103, at 15. But K2 cites no case in which expert
testimony was required to show that a warning was defective. Under Wisconsin law, expert
testimony is required only if the court finds that “the underlying issue is not within the realm
of the ordinary experience of mankind.” State v. Kandutsch, 2011 WI 78, ¶ 28, 336 Wis. 2d
478, 799 N.W.2d 865 (internal quotations omitted). And Wisconsin courts have declined to
require expert testimony in cases involving much more complex issues than these fitting
instructions. See Lindeman v. Mt. Olympus Enterprises, Inc., No. 14-cv-435, 2015 WL 4772925,
at *3 (W.D. Wis. Aug. 12, 2015) (collecting cases). Here, the instructions are written in plain
language, and the act of reading and following instructions is well within the ordinary
experience of mankind.
The court denies K2’s motion for summary judgment on the defective instructions
claim.
18
3. Negligence claim
Plaintiffs also bring a claim for negligence. To sustain this claim, plaintiffs must prove
(1) the existence of a duty of care on the part of the defendant, (2) a breach of that duty of
care, (3) a causal connection between the defendant’s breach of the duty of care and the
plaintiff’s injury, and (4) actual loss or damage resulting from the injury. Smaxwell v. Bayard,
2004 WI 101, ¶ 32, 274 Wis. 2d 278, 682 N.W.2d 923. In Wisconsin, a manufacturer’s duty
of care includes the duty to safely design the product so it is fit for its intended purpose, and
the duty to conduct adequate inspections and tests to determine the extent of defects.
Wis. Civil Jury Instructions § 3200(2).
K2 contends that plaintiffs have not adduced evidence of “specific acts of negligence.”
Dkt. 103, at 17. But plaintiffs can rely on the same evidence used to establish their product
liability claims. Although negligence and product liability are alternative theories of liability,
there is significant overlap between the two. See Krien v. Harsco Corp., 745 F.3d 313, 317 (7th
Cir. 2014) (“[A] claim of strict products liability is much like a negligence claim because it
requires proof either that the product was unreasonably dangerous or, what amounts to the
same thing, that it was defective”). Plaintiffs’ expert testimony from Ziejewski is sufficient to
create a material dispute regarding whether K2 breached its duty to design a product that was
safe for skiers.
4. Breach of warranty claim
K2 moves for summary judgment on plaintiffs’ claims for breach of warranty on two
grounds. Dkt. 103, at 17–18. First, K2 contends that under Austin v. Ford Motor Co., claims for
breach of warranty cannot be brought when the plaintiff has a tort claim. See 86 Wis.2d 628,
273 N.W.2d 233, 240 (1979) (“[I]t is inappropriate to bring an action for breach of warranty
19
where a tort remedy is sought”). Second, K2 contends that there is no privity of contract
between plaintiffs and K2. See St. Paul Mercury Ins. Co. v. Viking Corp., 539 F.3d 623, 626 (7th
Cir. 2008) (Wisconsin law requires privity of contract between parties before liability can be
founded on breach of express or implied warranty).
Plaintiffs have not substantively responded to either of these arguments. Dkt. 137, at
52–53. Failure to respond to an argument can result in waiver or forfeit of a claim. Nichols v.
Nat’l Union Fire Ins. Co. of Pittsburgh, PA, 509 F. Supp. 2d 752, 760 (W.D. Wis. 2007)
(collecting cases). Because plaintiffs did not respond to K2’s arguments regarding privity or the
ability to bring warranty claims in a tort case, the court will grant summary judgment for K2
on plaintiffs’ claims for breach of warranty.
5. Loss of consortium claim
K2 moves for summary judgment on Tracy’s loss of consortium claim because it is
derivative of Scott’s injuries. Because the court denies summary judgment on Scott’s product
liability and negligence claims, it will also deny summary judgment on Tracy’s claim for loss of
consortium.
K2 also moves to dismiss Tracy’s claim on the ground that plaintiffs have not properly
pleaded loss of consortium in their amended complaint. Plaintiffs’ amended complaint does
not include “loss of consortium” as an independent cause of action, but it does include
allegations that “Plaintiff Tracy Rogers . . . has been deprived of the services, society,
companionship and consortium of Scott Rogers as a proximate result of his enhanced injuries.”
Dkt. 32, ¶ 23. K2 contends that this is insufficient under the plausible pleading standard of
Ashcroft v. Iqbal, 556 U.S. 662 (2009).
20
Plaintiffs’ allegations are sufficient to state a claim. Even post-Iqbal, Federal Rule of
Civil Procedure 8 requires only “adequate notice of the scope of, and basis for” the asserted
claims. Avila v. CitiMortgage, Inc., 801 F.3d 777, 783 (7th Cir. 2015) (citing Vincent v. City
Colleges of Chi., 485 F.3d 919, 923 (7th Cir.2007)). Here, K2 had adequate notice that Tracy
was seeking relief for loss of consortium as a result of the enhanced injuries caused by the K2
helmet.
C. Additional motions and requests for relief
As a final matter, plaintiffs ask the court to deny certain requests by K2 that plaintiffs
contend were improperly included in K2’s summary judgment reply. Dkt. 149. Some of the
“motions” to which plaintiffs refer are objections to allegedly inadmissible evidence—
objections that K2 is allowed to raise during summary judgment. For example, K2 objects that
the declarations from Tracy and Ziejewski, first produced with plaintiffs’ summary judgment
opposition, are untimely expert testimony. Dkt. 143, at 3–10. There is nothing improper about
K2 making these objections in its summary judgment reply. (The court has overruled the
objection to Tracy’s declaration, and it has not considered the Ziejewski declaration. Whether
the Ziejewski evidence will be allowed at trial will be addressed later at the final pretrial
conference.)
But K2 requests two additional forms of relief in its reply brief. First, K2 contends that
plaintiffs should be sanctioned for spoliation because Tracy adjusted the helmet’s comfort liner
and therefore altered it from its condition at the time of the accident. Dkt. 143, at 7–8 fn. 7.
Second, K2 contends that plaintiffs did not disclose the existence of Scott’s ski goggles and
must be ordered to turn them over. Id. at 8.
21
A party may not raise new issues in a reply brief. See Casna v. City of Loves Park, 574
F.3d 420, 427 (7th Cir. 2009). In any event, both of K2’s requests for additional relief are
undeveloped. The spoliation arguments are relegated to a footnote. And both requests
misconstrue the history of this case. K2’s own experts previously removed the helmet’s comfort
lining at issue. Dkt. 112, at 10–11. And K2 was already aware of Scott’s goggles, Dkt. 130
(Tracy dep. 33:9–17), and Halstead included a pair of goggles as a factor in his testing. Dkt.
110, at 4. The court will deny K2’s requests for additional relief, thus granting plaintiffs’
request.
ORDER
IT IS ORDERED that:
1. Plaintiffs motion to exclude the opinion testimony of K2’s experts, Dkt. 139, is
GRANTED in part and DENIED in part, as provided in this opinion.
2. Defendant K2’s motion for summary judgment, Dkt. 102, is DENIED for the most
part. The motion is GRANTED only with respect to plaintiffs’ claims for breach of
warranty.
3. Plaintiffs Scott Rogers and Tracy Rogers’ motion, Dkt. 149, for summary denial of
K2’s motions is GRANTED in part. The court denies defendant K2’s motions to
produce ski goggles and to sanction plaintiffs for spoliation.
4. Pursuant to the parties’ stipulation, Dkt. 250, all claims as to defendants Lexington
Insurance Company and AIG Europe Limited are DISMISSED without prejudice.
Entered December 28, 2018.
BY THE COURT:
/s/
________________________________________
JAMES D. PETERSON
District Judge
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