Lapsley v. XTEK, Inc.

• Decision Date: 27 July 2012
• Docket Number: No. 11–3313.,11–3313.
• Citation: 689 F.3d 802
• Parties: Leonard LAPSLEY, et al., Plaintiffs–Appellees, v. XTEK, INC., Defendant–Appellant.
• Court: U.S. Court of Appeals — Seventh Circuit

689 F.3d 802

Leonard LAPSLEY, et al., Plaintiffs–Appellees,

v.XTEK, INC., Defendant–Appellant.

No. 11–3313.

United States Court of Appeals, Seventh Circuit.

Argued May 23, 2012.

Decided July 27, 2012.

Edward J. Wartman (argued), Attorney, Law Office of Edward J. Wartman, Merrillville, IN, for Plaintiffs–Appellees.

Jon B. Laramore (argued), Attorney, Faegre Baker Daniels LLP, Indianapolis, IN, for Defendant–Appellant.

Before MANION, ROVNER, and HAMILTON, Circuit Judges.

HAMILTON, Circuit Judge.

This appeal arose from an accident at a steel rolling mill that permanently disabled one of the workers there. The circumstances of that accident were unusual. Industrial grease was propelled in a jet with enough energy to penetrate and pass through the human body like a bullet. That jet hit and disabled plaintiff Leonard Lapsley. At trial the jury found that the accident was caused by a design defect in a heavy industrial product designed and manufactured by defendant Xtek, and sold and installed in the mill. That equipment contained an internal spring that could exert over ten thousand pounds of force. The jury accepted the theory of plaintiffs' expert witness, Dr. Gary Hutter, that the spring was the culprit mechanism behind the accident and that an alternative design of a thrust plate in the equipment would have prevented the disabling accident. Xtek has appealed, challenging the district court's denial of its Daubert motion that sought to bar Dr. Hutter from offering his expert opinions, which were essential to the plaintiffs' case.

The purpose of the Daubert inquiry is to scrutinize proposed expert witness testimony to determine if it has “the same level of intellectual rigor that characterizes the practice of an expert in the relevant field” so as to be deemed reliable enough to present to a jury. Kumho Tire Co. v. Carmichael, 526 U.S. 137, 152, 119 S.Ct. 1167, 143 L.Ed.2d 238 (1999). A Daubert inquiry is not designed to have the district judge take the place of the jury to decide ultimate issues of credibility and accuracy. If the proposed expert testimony meets the Daubert threshold of relevance and reliability, the accuracy of the actual evidence is to be tested before the jury with the familiar tools of “vigorous cross-examination, presentation of contrary evidence, and careful instruction on the burden of proof.” Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 596, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993). Once the district court has adequately applied the Daubert framework, our review of the determination to admit or exclude the evidence is deferential. E.g., United States v. Lupton, 620 F.3d 790, 798–99 (7th Cir.2010) (affirming exclusion of expert testimony); see also Kumho Tire, 526 U.S. at 152, 119 S.Ct. 1167 (reversing court of appeals decision that failed to accord sufficient discretion to district court that admitted expert testimony). In this case, the district court's stated analysis of the proposed testimony was brief, but it was also directly to the point and was sufficient to trigger deferential review on appeal. We affirm the judgment of the district court.

I. Factual and Procedural Background

Plaintiff Leonard Lapsley worked for many years as a millwright at the old Bethlehem Steel works in Burns Harbor, Indiana. On May 19, 2004, Lapsley had just finished filling a large spindle mechanism with industrial strength grease, as he had many times before, using a grease wand of his own manufacture. The grease wand was connected by a hose to a pressurized grease distribution system in the mill. Suddenly, as Lapsley stood near the spindle, a loud “shotgun-like” bang was heard across the mill floor and Lapsley fell to the ground, covered in grease. Co-workers rushed to his aid. He had a hole in his chest and could not breathe properly. Lapsley was taken to the hospital, where it was discovered that grease had somehow been injected into his chest with enough force to break several of his ribs, fill his chest cavity, and even create an exit wound through his back. After eleven surgeries, doctors have been unable to remove all of the grease, some of which has fused with Lapsley's internal tissues. Lapsley survived, but he suffers constant pain so severe that he is unable to return to work or do many activities he once enjoyed. Leonard's wife Barbara also sought damages for the effect the accident has had on their life together.

The steel mill where Lapsley worked uses immense rollers to flatten ingots of hot steel. Those rollers are connected to drive motors by large drive shafts known as spindles. Rather than try to explain the design of a spindle with text alone, we include a diagram taken from Xtek's exhibits at trial:

Image 1 (5.03" X 2.39") Available for Offline Print The drive end pod is turned by the mill's powerful drive motors. The spindle connects the drive end pod to the roll end pod, which connects to and turns the heavy steel rollers that flatten the steel ingots. Ring and hub gears at each end transfer the rotational energy from the motor to the spindle and then from the spindle to the roller. The spring inside the spindle pushes both ends of the spindle against a thrust plate. Keeping axial tension in this way helps hold the spindle tightly in place and limits its vibration as it turns. Because the spindle weighs several tons, the spring must be very powerful, exerting a lateral force of more than ten thousand pounds.

To reduce friction and wear, the gears at each end of the spindle need to be kept lubricated, so the empty spaces around each end of the spindle inside the end pods are filled with industrial grease. Just before the accident occurred, the spindle in question had been returned from reconditioning by Xtek and had been reinstalled. The roller was also installed in the roll end pod but the spindle had not yet operated because it needed to be greased. Lapsley filled the drive end pod with grease through the port labeled “zerk fitting” in the diagram above. He removed the actual zerk fitting (a one-way valve) to aid that process. Lapsley next started filling the roll end pod with grease. As the roll end had filled, he went back to the drive end and was about to replace the fitting there when he was hit in the chest by the jet of grease.

Hours after the accident the spindle was inspected and was put into service. It operated for two years without any further incident. Both sides' experts and an internal team from the mill investigated possible causes of the accident. No one was able to recreate it or to determine to an absolute certainty what was the precise cause.

As Lapsley lay stunned on the floor of the mill being helped by co-workers, he responded to the inevitable question “What happened?” by gasping that the grease wand had exploded. But witnesses testified that the actual wand—which was admitted into evidence at trial in pristine condition—had not exploded. In fact, the wand was still connected to the hose leading to the mill's centralized, high-pressure grease distribution system. Some inconsistencies in various witnesses' memories on this last point supported the hypothesis of Xtek's expert—that the jet of grease came from a pressurized disconnection of the wand from the hose. Lapsley's lawyers and expert criticized the hose-disconnection theory at trial. The jury did not accept it, and there were ample reasons for that decision.¹

Lapsley's expert, Dr. Hutter, hypothesized that the internal spring must have become bound up or cocked during reconditioning of the spindle or installation of the roller. His theory was that the spring must have suddenly let loose and expanded as the roll end pod filled with grease, creating the loud explosive sound heard across the mill and pushing the entire spindle deeper into the drive end pod. Since the space between the spindle and the drive end thrust plate was completely filled with incompressible grease, the spindle would have acted like a ram, pushing the grease away and out through any opening in the mechanism. Lapsley just happened to be standing two feet in front of the narrow, open grease port, which acted to focus the immense energy from the spring into a narrow, high-velocity jet of grease.

The grease port was not the only opening through which grease could escape under that pressure, but it was probably the path of least resistance. The pod had relief fittings, which would allow some grease to escape if the internal pressure exceeded five pounds per square inch, and rubberized “Glyd seals,” which would give way at fifty to sixty pounds per square inch. Dr. Hutter accounted for these alternate grease pathways in his calculations. He still concluded that the effect of the spring unbinding and acting as a ram could produce sufficient grease velocity to cause Lapsley's injuries. He also calculated the possible effect of an alternative thrust plate design—the design actually used by Xtek both before and after the accident, but not with the spindle involved in the accident. That alternative design had grooves cut into it to assist grease flow throughout the mechanism. Dr. Hutter's calculations showed that those grooves could have rerouted some flow and thereby reduced the jet of grease out the grease port enough to reduce significantly the injury to Lapsley.

Long before trial, Dr. Hutter submitted a preliminary report and was deposed by Xtek's lawyers. The Lapsleys' lawyers did not provide all of Dr. Hutter's notes and calculations supporting his report until the day of the deposition. That is the sort of oversight that makes it more difficult to take an effective deposition. It should not have happened. But Xtek went forward with the deposition as scheduled. The remedy for the late disclosure of notes and calculations was left to the district court's discretion, and the district judge reasonably allowed Xtek to conduct a second deposition. See, e.g., Hunt v. DaVita, Inc., 680 F.3d 775, 780–81 (7th Cir.2012...