Deimer v. Cincinnati Sub-Zero Products, Inc.

• Decision Date: 04 October 1994
• Docket Number: 94-3523,Nos. 94-2141,SUB-ZERO,s. 94-2141
• Citation: 58 F.3d 341
• Parties: 42 Fed. R. Evid. Serv. 789, Prod.Liab.Rep. (CCH) P 14,262 Constance DEIMER, Plaintiff-Appellant, v. CINCINNATIPRODUCTS, INCORPORATED, Defendant-Appellee. * .
• Court: U.S. Court of Appeals — Seventh Circuit

Page 341

58 F.3d 341

42 Fed. R. Evid. Serv. 789, Prod.Liab.Rep. (CCH) P 14,262

Constance DEIMER, Plaintiff-Appellant, v. CINCINNATI SUB-ZERO PRODUCTS, INCORPORATED, Defendant-Appellee.

Nos. 94-2141, 94-3523 ^*.

United States Court of Appeals, Seventh Circuit.

Submitted Oct. 4, 1994. ^**

Decided July 5, 1995.

Robert A. Holstein (submitted), David L. Poindexter, Eileen C. Urban, Holstein, Mack & Klein, Chicago, IL, for Constance Deimer.

Jeffrey Singer, Paul E. Wojcicki, Segal, McCambridge, Singer & Mahoney, Chicago, IL, for Cincinnati Sub-Zero Products, Inc.

Barbara J. Anderson, John A. Rupp, Coffield, Ungaretti & Harris, Chicago, IL, for Product Liability Advisory Council, Inc., amicus curiae.

Before CUDAHY, ESCHBACH and RIPPLE, Circuit Judges.

RIPPLE, Circuit Judge.

Constance Deimer was a surgical nurse at Northwestern Memorial Hospital in Chicago, Illinois. On March 21, 1988, Ms. Deimer was injured while moving a Blanketrol Hypo-Hyperthermia machine manufactured by Cincinnati Sub-Zero Products, Inc. ("Sub-Zero") to an operating room. Just before the injury, the power cord for the machine was lying across the top of the machine. As Ms. Deimer began to push the machine to the operating room, the power cord fell off the machine, and she stumbled on it. Ms. Deimer consequently bumped into the machine and fell. The 185-pound machine (filled with several gallons of water) then became unstable and fell on her knee.

Ms. Deimer brought an action against Sub-Zero on the alternative theories of strict liability and negligent product design. She alleged both that the machine was top-heavy The district court dismissed the strict liability claim. In regard to the claim concerning the negligent product design of the power cord, the district court granted partial summary judgment for the defendant. The court held that Ms. Deimer's deposition testimony that she did not look for the cord-storage wrap device on the day of the accident precluded any claim that this alleged defect was the proximate cause of her injury. Trial was conducted on the remainder of the negligence count. However, Ms. Deimer's expert witness was prohibited from testifying at trial on the cord wrap defect issue. The district court denied Ms. Deimer's motion, accompanied by a clarifying affidavit, to reconsider the grant of partial judgment, and ultimately the district court granted judgment as a matter of law for Sub-Zero under Fed.R.Civ.P. 50.

and unstable, and that the machine had an inadequate and detachable cord wrap. The original action was brought in Illinois state court, but Sub-Zero removed the suit to the district court on the ground that the parties were of diverse citizenship. See 28 U.S.C. Sec. 1441.

On the first appeal to this court, we affirmed the grant of judgment as a matter of law, but remanded the denial of Ms. Deimer's motion to reconsider the partial summary judgment. We held that "in light of [Ms. Deimer's] clarifying affidavit," summary judgment concerning the negligent design of the cord wrap device was not appropriate. Deimer v. Cincinnati Sub-Zero Prods., Inc., 990 F.2d 342, 346 (7th Cir.1993).

After preliminary motions had been addressed, a jury trial was held on April 12, 1994. During the trial, the district court granted Sub-Zero's oral motion to strike the testimony of Ms. Deimer's expert witness, Roland Ruhl. The court then granted Sub-Zero's motion for judgment as a matter of law. In an oral rendition, the district court, relying on Daubert v. Merrell Dow Pharmaceuticals, --- U.S. ----, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993), held that Dr. Ruhl's testimony was merely subjective opinion, lacking any scientific methodology. The district court was of the view that Dr. Ruhl had failed to substantiate his opinion on the basis of any scientific research. The court also held that Dr. Ruhl's analysis had not been applied, in a meaningful way, to the facts of the case. It concluded that "[t]here is simply no evidence from which a rational jury could conclude that this was an unsafe machine when it left their possession, control and manufacture, that it was unsafe for its intended use or that they should bear liability for what happened here." Tr. III at 458. Ms. Deimer now appeals the judgment of the district court and submits that the court erred in its exclusion of Dr. Ruhl's testimony and the consequent granting of judgment as a matter of law to the defendant.

DISCUSSION

1.

Recently, this circuit made clear that a federal standard of review governs the adjudication of a motion for a judgment as a matter of law:

[I]t is entirely consistent to say that although state law defines the elements of a claim and the burden of persuasion, federal law defines the standard for evaluating the sufficiency of the evidence. If reasonable persons could not find that the evidence justifies a decision for a party on each essential element, the court should grant judgment as a matter of law--before trial under Rule 56, later under Rule 50, and using the same federal standard each time. By linking the standard for summary judgment to the standard for overturning a verdict, Anderson and Celotex leave no other option. We now adopt the federal reasonable-person standard across the board: pre-trial, mid-trial, post-trial, and on appeal, for evaluating both the merits and the quantum of relief. Contrary decisions are no longer authoritative.

Mayer v. Gary Partners & Co., 29 F.3d 330, 335 (7th Cir.1994). We must view the evidence in the light most favorable to the nonmoving party and ascertain whether there exists "any evidence upon which a jury could reach a verdict for the party producing it, upon whom the onus of proof is imposed." Fulk v. Illinois Cent. R.R., 22 F.3d 120, 124 (7th Cir.), cert. denied, --- U.S. ----, 115 S.Ct. 193, 130 L.Ed.2d 125 (1994). In applying this standard, our review is de novo. Id. at 123 (citing Harrison v. Dean Witter Reynolds, Inc., 974 F.2d 873, 884 (7th Cir.1992), cert. denied, --- U.S. ----, 113 S.Ct. 2994, 125 L.Ed.2d 688 (1993)).

In Daubert, the Supreme Court of the United States held that the trial court must, under Rule 702 of the Federal Rules of Evidence, exercise "some degree of regulation of the subjects and theories about which an expert may testify." --- U.S. at ----, 113 S.Ct. at 2795. ¹ The Court stated that an expert scientific opinion must be grounded in the "methods and procedures of science," and must consist of more than simply "subjective belief or unsupported speculation." Id. The Court added:

[A]n inference or assertion must be derived by the scientific method. Proposed testimony must be supported by appropriate validation--i.e., "good grounds," based on what is known. In short, the requirement that an expert's testimony pertain to "scientific knowledge" establishes a standard of evidentiary reliability.

Id.

Our case law has applied Daubert by adopting a two-step methodology for the district courts to employ in fulfilling their "gatekeeping function" under Fed.R.Evid. 702. First, the district court must determine "whether the expert's testimony pertains to scientific knowledge. This task requires that the district court consider whether the testimony has been subjected to the scientific method; it must rule out 'subjective belief or unsupported speculation.' " Porter v. Whitehall Lab., 9 F.3d 607, 614 (7th Cir.1993) (quoting Daubert, --- U.S. at ----, 113 S.Ct. at 2795). Second, the district court has to "determine whether the evidence or testimony assists the trier of fact in understanding the evidence or in determining a fact in issue. That is, the suggested scientific testimony must 'fit' the issue to which the expert is testifying." Id. at 616.

In reviewing the district court's fact-specific application of the approach mandated by Daubert, we must apply a deferential standard of review. A "decision to allow expert testimony is within the broad discretion of the trial judge and 'is to be sustained on appeal unless manifestly erroneous.' " Bradley v. Brown, 42 F.3d 434, 437 (7th Cir.1994) (quoting United States v. Daccarett, 6 F.3d 37, 58 (2d Cir.1993) (citation omitted), cert. denied, --- U.S. ----, ----, ----, 114 S.Ct. 1294, 1295, 1538, 127 L.Ed.2d 648, 648, 128 L.Ed.2d 190 (1994)).

2.

We begin with the first of the two inquiries required by the Daubert methodology. As we noted in Porter, 9 F.3d at 615, and again in Gruca v. Alpha Therapeutic Corp., 51 F.3d 638, 643 (7th Cir.1995), Daubert set forth several nonexclusive guideposts to assist the district courts in determining whether the proffered scientific expert testimony fairly can be characterized as a scientific opinion: whether the proffered conclusion lends itself to verification by the scientific method through testing; whether it has been subjected to peer review; whether it has been evaluated in light of the potential rate of error of the scientific technique; and whether it is consistent with the generally accepted method used for gathering the relevant scientific evidence. See also United States v. Pierre, 47 F.3d 241, 243 (7th Cir.1995); Bradley, 42 F.3d at 437.

Turning to the proffered testimony in the case before us, we certainly cannot say that the district court abused its discretion in deciding that the testimony could not be characterized as scientific. At the outset, it is important to note that the record supports the district court's conclusion that the witness did not conduct any studies or analysis to substantiate his opinion. The district court stated, "There is no supporting methodology or protocol of any kind to render his opinion reasonable or credible. There is not any foundation for him to say how this accident happened, and particularly by virtue of the manufacturer's power strap and cord and the manner in which it was affixed to the machine." Tr. III at 451. The witness proffered unverified statements that were unsupported by any scientific method. This type of unsubstantiated testimony...