Hirchak v. W.W. Grainger, Inc.

• Decision Date: 17 November 2020
• Docket Number: No. 19-2642,19-2642
• Citation: 980 F.3d 605
• Parties: Joseph HIRCHAK; Cindy Hirchak, Plaintiffs - Appellants v. W.W. GRAINGER, INC., doing business as Grainger, doing business as Dayton; Dayton Electric, Defendants - Appellees McMaster-Carr, Defendant
• Court: U.S. Court of Appeals — Eighth Circuit

980 F.3d 605

Joseph HIRCHAK; Cindy Hirchak, Plaintiffs - Appellants

v. W.W. GRAINGER, INC., doing business as Grainger, doing business as Dayton; Dayton Electric, Defendants - AppelleesMcMaster-Carr, Defendant

No. 19-2642

United States Court of Appeals, Eighth Circuit.

Submitted: September 22, 2020

Filed: November 17, 2020

Alan J. Charkey, Brett N. Tishler, WHITE & WILLIAMS, Philadelphia, PA, Benjamin Michael Weston, LEDERER & WESTON, West Des Moines, IA, for Plaintiffs - Appellants.

Kevin M. Reynolds, WHITFIELD & EDDY, Des Moines, IA, for Defendants - Appellees.

Before COLLOTON, GRUENDER, and GRASZ, Circuit Judges.

GRUENDER, Circuit Judge.

Joseph and Cindy Hirchak brought claims of negligence and failure to warn against W.W. Grainger, Inc. ("Grainger"), a distributor of industrial equipment, and its subsidiary, Dayton Electric Manufacturing Co. ("Dayton") (collectively, "Defendants"). After ruling a report authored by the Hirchaks’ expert inadmissible, the district court¹ granted summary judgment in favor of Defendants. We affirm.

I.

On October 20, 2015, a web sling (the "subject sling") at the plant of Joseph Hirchak's employer, Weiler, Inc. ("Weiler"), broke, dropping its load of steel tubing onto Joseph Hirchak and injuring him. The Hirchaks, citizens of Iowa, brought product liability and breach of warranty claims against Grainger in Iowa state court, alleging that Grainger supplied the subject sling to Weiler. Grainger, which is incorporated and has its principal place of business in Illinois, removed the case to federal court on the basis of diversity jurisdiction. See 28 U.S.C. § 1332(a). The Hirchaks’ amended complaint added Dayton, which also is incorporated and has its principal place of business in Illinois, as a defendant. Later, the Hirchaks narrowed their claims against Defendants to negligence and failure to warn.

During the time period relevant here, Grainger distributed a web-sling model that it identified under stock-keeping unit 2MJT4. Grainger's 2MJT4 slings were manufactured by Juli Sling Co., Ltd. ("Juli") and distributed by Grainger under the Dayton brand. Because any other web-sling models that Juli manufactures are not at issue here, we refer to slings of the same model as Grainger's 2MJT4 slings as "Juli slings." We refer to Juli slings that Grainger distributed as "Grainger-distributed Juli slings."

To prove that Defendants supplied the subject sling, the Hirchaks submitted an expert report that concluded that the subject sling was a Grainger-distributed Juli sling. The Hirchaks’ expert based this opinion on similarities that he identified between the subject sling and two known Grainger-distributed Juli slings, one purchased new and the other furnished by Weiler.

To prove that they did not supply the subject sling, Defendants submitted an affidavit from Grainger's director of supplier management, who averred that all Juli slings distributed by Grainger shipped from Juli with sewn-in capacity and warning tags that the subject sling lacked. Grainger's director of supplier management also stated that although Weiler had a customer account with Grainger, Grainger's sales records listed no sales of slings to Weiler. In addition, although Weiler's purchase records listed numerous purchases of slings from other suppliers, they listed no purchases of slings from Grainger. Defendants also disputed the significance of the similarities that the Hirchaks’ expert identified between the subject sling and the two known Grainger-distributed Juli slings, arguing that "virtually all [slings] that are marketed in the United States" share many of these similarities.

No Weiler employee was identified who could testify as to how the subject sling came into Weiler's possession. Nor does the record indicate how the known Grainger-distributed Juli sling that Weiler furnished to the Hirchaks’ expert came into Weiler's possession.

The district court granted summary judgment in favor of Defendants. First, the district court held that the Hirchaks’ expert's report was inadmissible because his opinion that the subject sling was a Grainger-distributed Juli sling was based on insufficient facts. The district court reasoned that the Hirchaks’ expert's analysis provided a factual basis for, at most, the premise that the subject sling was a Juli sling. It does not follow, the district court pointed out, that the subject sling was a Grainger-distributed Juli sling; the subject sling could well have been a Juli sling distributed by one of Grainger's competitors. Second, the district court held that, without their expert's report, the Hirchaks had failed to present sufficient evidence that Defendants supplied the subject sling to Weiler in order to resist summary judgment.

The Hirchaks appeal, raising the sole argument that summary judgment was inappropriate because the district court abused its discretion in excluding their expert's opinion that the subject sling was a Grainger-distributed Juli sling.

II.

"We review [a] district court's grant of summary judgment de novo." Hickerson v. Pride Mobility Prods. Corp. , 470 F.3d 1252, 1256 (8th Cir. 2006). "We review for abuse of discretion [a] district court's ruling regarding the admissibility of expert testimony." Id.

"[T]he Federal Rules of Evidence govern the admissibility of evidence in [a] diversity case." Wood v. Valley Forge Life Ins. , 478 F.3d 941, 945 (8th Cir. 2007). Under Federal Rule of Evidence 702, testimony in the form of an expert opinion must be "based on sufficient facts" and "help the trier of fact" by applying the expert's "specialized knowledge" and "reliable principles and methods." Among the factors that determine whether an expert opinion satisfies these requirements is its "ability to rule out other possibilities." Lauzon v. Senco Prods., Inc. , 270 F.3d 681, 693 (8th Cir. 2001). An expert opinion "should not be excluded [simply] because" the expert "failed to rule out every possible alternative." Id. But an expert opinion must account for "obvious" alternatives. Id. (citing Claar v. Burlington N. R.R. , 29 F.3d 499, 502-03 (9th Cir. 1994) ); see also Packgen v. Berry Plastics Corp. , 847 F.3d 80, 87 (1st Cir. 2017) ("An expert should adequately account for obvious alternative explanations." (internal quotation marks and alterations omitted)). Otherwise, the expert either failed to base his opinion "on sufficient facts" or, if sufficient facts were present, failed to "help the trier of fact" by explaining how application of his "specialized knowledge" and "reliable principles and methods" to the facts supports his opinion over the obvious alternatives. See Fed. R. Evid. 702.

Here, the Hirchaks’ expert failed to account for the possibility that the subject sling was distributed by another distributor of Juli slings. This is an obvious alternative to his opinion that the subject sling was a Grainger-distributed Juli sling. As the district court pointed out, the Hirchaks’ expert made no effort to rule out this alternative. Nor could he, as the results of his analysis at best tended to show only that the subject sling was a Juli sling. His opinion that the subject sling was a Grainger-distributed Juli sling was therefore based on insufficient facts, and the district court did not abuse its discretion in excluding it. See McAndrew v. Garlock Equip. Co. , 537 F. Supp. 2d 731, 735 (M.D. Pa. 2008) (holding an expert product-identification opinion "not based upon sufficient facts" because, by comparing the defective product only to the defendant's products, the expert failed to account for the possibility that the defendant's competitors’ products had similar characteristics).

The Hirchaks present two arguments that their expert's opinion was based on sufficient facts. First, the Hirchaks emphasize the factual support for the premise that the subject sling was a Juli sling. The Hirchaks claim that this premise...