Stevenson v. Windmoeller & Hoelscher Corp., 21-2107

CourtUnited States Courts of Appeals. United States Court of Appeals (7th Circuit)
Writing for the CourtROVNER, CIRCUIT JUDGE
Docket Number21-2107
PartiesSTEVE STEVENSON, Plaintiff-Appellant, v. WINDMOELLER & HOELSCHER CORP., Defendant-Appellee.
Decision Date07 July 2022

STEVE STEVENSON, Plaintiff-Appellant,


No. 21-2107

United States Court of Appeals, Seventh Circuit

July 7, 2022


Appeal from the United States District Court for the Northern District of Illinois, Eastern Division. No. 1:19-cv-00052 - John Robert Blakey, Judge.

Before ROVNER, HAMILTON, and ST. EVE, Circuit Judges.


Plaintiff Steve Stevenson appeals the district court's decision in this product-liability action not to appoint a neutral expert pursuant to Federal Rule of Evidence 706. Finding no abuse of discretion in the court's decision, we affirm.



Stevenson was injured in the course of his employment with a commercial printing company. He was moving a portable ladder in order to clean a component of a Primaflex printing press, manufactured by defendant Windmoeller &Hoelscher Corporation, that prints flexible packaging for consumer goods such as bread and potato chips. The printing press is a large machine measuring some 53 feet long and 17 feet high. The ladder Stevenson was handling was one of two supplied with the machine, and its use was necessary in order to reach an otherwise out-of-reach printing plate on the upper level of the machine's interior. As Stevenson moved the ladder, it caught on the 10-foot cable of an operator pendant attached to the machine, which caused him to twist and injure his left shoulder and back. He later had surgery as a result of the injury.

Stevenson filed this product-liability suit against Windmoeller on theories of negligence and strict liability, arguing that the design of the printing press-including the placement of the 10-foot cable near the access door used to service the interior components of the machine-was defective, in that it foreseeably gave rise to the very scenario that injured Stevenson: the ladder catching on the cable.

Shortly after the close of fact discovery, Stevenson's court-appointed counsel[1] filed a motion asking the court to appoint


an engineering expert[2] pursuant to Fed.R.Evid. 706, which in relevant part provides:

On a party's motion or on its own, the court may order the parties to show cause why expert witnesses should not be appointed and may ask the parties to submit nominations. The court may appoint any expert that the parties agree on and any of its own choosing. But the court may only appoint someone who consents to act

Rule 706(a). This rule codifies the inherent power of a trial judge to appoint an expert who will function as a neutral expert serving the court rather than any particular party. See 29 Charles A. Wright &Victor J. Gold, FEDERAL PRAC. &PROC. §§ 6301-02 (1997). The rule also specifies that in a civil case (other than one involving just compensation under the Fifth Amendment), the expert's compensation is payable "by the parties in the proportion and at the time that the court directs-and the compensation is then charged like other costs." Rule 706(c)(2). Stevenson's position was that the appointment of an engineering expert was necessary in order to assist the jury in understanding the manufacturing and product evidence that the parties would present, given that the issues raised in the case (including the design and functioning of the printing machine, the dangers presented, the feasibility


of alternative designs, and so on) were beyond the knowledge and understanding of the ordinary layperson. Stevenson added that he lacked the resources to employ his own expert, and he asked the court to tax the cost of engaging such an expert to the defendants. In his reply brief, in response to Windmoeller's argument that Stevenson was really seeking the appointment of an expert to advocate for his own position, Stevenson clarified that he was seeking the appointment of a neutral expert.

The district court denied this motion without prejudice and set a deadline for the submission of Windmoeller's anticipated motion for summary judgment.

After Windmoeller filed its summary judgment motion, Stevenson renewed his motion for the appointment of an expert pursuant to Rule 706, again anticipating the need for expert opinion testimony and emphasizing that he was asking for the appointment of a neutral expert. The court once again denied the motion, reasoning that what Stevenson was really asking for was the appointment of an expert to support his own case, rather than a neutral expert to aid the court. The court added that under the Northern District of Illinois' Local Rule 83.40, Stevenson was eligible to seek reimbursement for reasonable expert witness fees and expenses. The court added that "[i]f the Court later determines that it really does need a neutral expert to help evaluate the evidence, it will revisit the issue." The court subsequently entered an order giving Stevenson just over one month to respond to the motion for summary judgment.


Stevenson contends that the month that the court allowed him to respond to the summary judgment motion was insufficient to hire his own expert, allow the defense additional time for discovery related to that expert, and then for Stevenson to file his response to the summary judgment motion. He instead filed his summary judgment response without the support of any expert opinion.

The district court granted summary judgment in favor of Windmoeller. The court reasoned in the first instance that Stevenson had no expert opinion to support his theory of the case as to the condition and design of the printing machine, which was "a specialized piece of industrial equipment that the vast majority of the population has never seen or used," and thus was beyond the knowledge and understanding of the ordinary layperson. Without the support of an expert to identify any respect in which Windmoeller's printing press was defective, thereby rendering it unreasonably dangerous and the proximate cause of the plaintiff's injuries, the court concluded that the factfinder could not find in favor of the plaintiff. See, e.g., Clark v. River Metals Recycling, LLC, 929 F.3d 434, 440 (7th Cir. 2019) (noting that Illinois courts recognize that product liability actions frequently involve specialized knowledge or expertise outside of a layperson's knowledge and so may require expert testimony). The court went on to hold that apart from the lack of expert testimony, the plaintiff's claims independently failed for lack of other evidence to create a triable issue of fact.

Stevenson appeals, arguing that the district court abused its discretion in denying his Rule 706 motion for the appointment of a neutral expert and that the court's refusal to appoint such


an expert was the determinative factor in the failure of his case at summary judgment.


In view of the permissive language of Rule 706, we review the district court's decision declining to appoint an expert solely for abuse of discretion. Martin v. Redden, 34 F.4th 564, 569 (7th Cir. 2022) (per curiam); Giles v. Godinez, 914 F.3d 1040, 1052 (7th Cir. 2019); Ledford v. Sullivan, 105 F.3d 354, 358 (7th Cir. 1997).

The purpose of a court-appointed expert is to assist the court in evaluating the evidence or deciding a fact in issue. Giles, 914 F.3d at 1053 (citing Ledford, 105 F.3d at 358-59). The court may, for example, invoke the aid of an appointed expert "to resolve the clash of ... warring party experts," Planned Parenthood of Wis., Inc. v. Van Hollen, 738 F.3d 786, 799 (7th Cir. 2013); see also In Re High Fructose Corn Syrup Antitrust Litig., 295 F.3d 651, 665 (7th Cir. 2002); Students of Cal. Sch. for the Blind v. Honig, 736 F.2d 538, 548-49 (9th Cir. 1984), cert. granted &j. vacated on other grounds, 471 U.S. 148, 105 S.Ct. 1820 (1985); Eastern Air Lines, Inc. v. McDonnell Douglas Corp., 532 F.2d 957, 1000 (5th Cir. 1976), to help the court evaluate the admissibility of a party's proffered expert opinion, Gen. Elec. Co. v. Joiner, 522 U.S. 136, 148-50, 118 S.Ct. 512, 520-21 (1997) (Breyer, J., concurring), to address ambiguities, confusion, or contradictions within the parties' opinion evidence, Walker v. Am. Home Shield Long Term Disability Plan, 180 F.3d 1065, 1071 (9th Cir. 1999), to supply an additional, independent viewpoint...

To continue reading

Request your trial

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT