Winters v. Fru-Con Inc.

Decision Date22 August 2007
Docket NumberNo. 05-3911.,05-3911.
Citation498 F.3d 734
PartiesTerry L. WINTERS, Plaintiff-Appellant, v. FRU-CON INC., Defendant-Appellee.
CourtU.S. Court of Appeals — Seventh Circuit

Robert B. Ramsey (argued), Brent, Coon & Associates, St. Louis, MO, for Plaintiff-Appellant.

Dennis E. Rose (argued), Donovan, Rose, Nester & Szewczyk, Belleville, IL, for Defendant-Appellee.

Before KANNE, EVANS, and SYKES, Circuit Judges.

KANNE, Circuit Judge.

Terry Winters' hand was severed at the wrist while he was working at a food processing plant. He reached settlements with various defendants but proceeded with his claims against Fru-Con, the company that installed the equipment that injured him. Winters appeals the exclusion of his experts' testimony and the entry of judgment in Fru-Con's favor. We affirm.

A. Factual History

In December 1998, Winters began working at Gilster-Mary Lee's Centralia, Illinois plant. Gilster had recently agreed to produce cake mix and frosting for Aurora Foods, Inc.1 Aurora would sell the cake mix and frosting under the Duncan Hines brand name. In support of its contract with Gilster, Aurora purchased four preexisting cake mix and frosting manufacturing lines from a Proctor & Gamble plant in Jackson, Tennessee. The purchased production lines were disassembled, shipped to Illinois, and installed in the Centralia plant. Aurora hired Fru-Con to perform "all design, engineering and construction services necessary and appropriate for the relocation and installation" of the cake mix and frosting lines at the Centralia factory. R. 217 at Ex. 3. Fru-Con subcontracted with Logical Systems, Inc. to update the computer programs operating the lines.

Smoot Company, Inc., manufactured the valve that injured Winters. The valve was located at a junction of three tubes on one of the cake lines. The first tube brought cake mix to the junction point. The valve's position determined whether cake mix flowed into the second or third tube from the first tube. The second tube connected the junction point to a large mixer. The third tube connected to a storage area that was used when cake mix was not needed at the mixer. The computer control program, when in automatic mode, determined whether to send cake mix to the mixer or the storage area and altered the valve's position accordingly. Air pressure was used to move the cake mix through the tubes and also to adjust the valve's position. There is no evidence in the record that Fru-Con altered the design or structure of the tubes or diverter valve when it installed the equipment at the Centralia plant. Fru-Con effectively transplanted the cake and frosting lines "as is" from the Jackson, Tennessee plant to the Centralia, Illinois plant.

The Centralia plant was not yet producing cake mix or frosting when Winters was hired in December 1998. However, during this period Winters received training from Gilster in anticipation of his work on the production line. Part of his training included viewing a videotape on "lock out / tag out" safety procedures. A lock out / tag out procedure is used by workers to allow them to safely clean and repair automated machinery. The worker wishing to work on machinery deactivates the machine's power and then places a lock and tag on that location. The lock and accompanying tag informs other workers that the first worker intentionally turned the power off in order to work on the machine and consequently the other workers should not reactivate the machine without first checking with the original worker. There is no evidence in the record that Winters received any training or instruction from Fru-Con. Although Fru-Con employees were present at the Centralia plant when the accident occurred in July 1999, there is no indication in the record that Winters had any contact with Fru-Con employees during the course of his employment.

Winters began working on a cake line as a finish mix operator in Spring 1999. As a finish mix operator, Winters was involved in the packaging of cake mix into boxes. Winters used lock out / tag out procedures when performing maintenance as a finish mix operator. He worked as a finish mix operator for five or six weeks and was then transferred to a control room operator position. As a control room operator, Winters was responsible for working on a computer that controlled the movement of cake mix ingredients along the cake line.

During the initial months of operation, the cake mix would often clump and block the flow of ingredients in the tubes on the cake lines. Control room operators, including Winters, were responsible for unclogging the clumps of cake mix in the tubes. Control room operators attempted to break up clogs by banging on the outside of the tubes or alternatively disassembling part of the cake line and reaching into the tubes. Winters testified that the practice of control room operators was not to use lock out / tag out procedures when working to unclog the cake line by hand. Instead, the control room operators placed the computer program running the cake line into manual from automatic. The control room operator would then tell other control room operators in the control room that they had placed the computer program in manual. Winters stated that he followed these alternative procedures instead of a lock out / tag out procedure because this is what he observed the other control room operators doing when he started working as a control room operator.

Winters used the alternative procedure of placing the computer on manual when the accident occurred on July 7, 1999. He disconnected one of the tubes and, through the opening, placed his arm past the Smoot diverter valve to reach the cake mix clot in the second tube. While he was pulling his arm back, a Gilster coworker, unaware that Winters was working on the cake line, placed the computer program back to automatic. The diverter valve closed on Winters' hand at the wrist with sufficient force to sever it completely. Winters was rushed to a local hospital where doctors were able to successfully reattach his hand but Winters' use of his hand has been severely limited.

B. Procedural History

In May 2000, Winters brought suit alleging product liability and negligence claims against Fru-Con, Aurora, Smoot Co. and Logical Systems. Winters was precluded from suing Gilster directly because of workers' compensation requirements. However, the defendants brought Gilster into the case as a third party defendant alleging that Gilster had been negligent in training and supervising Winters. By July 2001, all parties consented to the jurisdiction of a magistrate judge pursuant to 28 U.S.C. § 636(c). The case was ultimately assigned to Magistrate Judge Proud. The last party was added to the case in 2002 when Aurora filed a third party declaratory action against Federal Insurance Co. Federal initially did not file a consent to Judge Proud's jurisdiction but did file a consent in March 2006 after we raised the issue in our November 23, 2005 order.

Winters reached out of court settlements with Aurora, Smoot Co. and Logical Systems but proceeded with his negligence and product liability claims against Fru-Con. Three years into the case in 2003, the magistrate judge refused Winters leave to file a proposed amended complaint in which he sought to add a claim for punitive damages. The magistrate judge also barred testimony from Winters' two experts, Edmond Israelski and H. Boulter Kelsey. Lacking an expert, the magistrate judge granted Fru-Con's motion for summary judgment on Winters' product liability claim. The case proceeded to a jury trial on the negligence claim but the magistrate judge granted Fru-Con's motion for judgment as a matter of law at the conclusion of Winters' case-in-chief. The magistrate judge also denied Winters' motion for a new trial. Winters' now seeks direct review of the judgment entered by the magistrate judge pursuant to 28 U.S.C. § 636(c)(3).


Winters argues that Magistrate Judge Proud lacked subject matter jurisdiction to proceed in the case because Federal failed to file a timely consent. On the merits, Winters argues that the magistrate judge erred by denying him leave to file his amended complaint, by barring his experts and by granting Fru-Con's motions on his product liability and negligence claims.

A. The Magistrate Judge's Jurisdiction

"Ensuring the existence of subject-matter jurisdiction is the court's first duty in every lawsuit." McCready v. White, 417 F.3d 700, 702 (7th Cir.2005) (citing Steel Co. v. Citizens for a Better Env't, 523 U.S. 83, 118 S.Ct. 1003, 140 L.Ed.2d 210 (1998)). Our initial review of the record in November 2005 revealed that Federal had failed to file a consent to the magistrate judge's jurisdiction. Federal remedied this failure by filing a consent in March 2006. This is sufficient to provide us with jurisdiction as it is clear to us that all parties, including Winters, have always intended to consent to proceeding before the magistrate judge pursuant to 28 U.S.C. § 636(c). Federal's inadvertent failure to file its consent was due to late entry into the case after the case had been reassigned to the magistrate judge and Federal's after the fact consent is sufficient to manifest its consent. See Roell v. Withrow, 538 U.S. 580, 590, 123 S.Ct. 1696, 155 L.Ed.2d 775 (2003) (holding that implied consent to the magistrate judge's jurisdiction can be determined by a voluntary appearance before the magistrate judge after a party has been informed of the need for consent and the right to refuse); King v. Ionization Int'l, Inc., 825 F.2d 1180, 1185 (7th Cir.1987) (noting that after the fact consent to the magistrate judge's jurisdiction is permissible if it is a manifestation of the parties' preexisting desire to consent to the magistrate judge).

B. Winters' Amended Complaint

We reject Winters' argument as to the magistrate judge's refusal to allow him to amend his...

To continue reading

Request your trial
262 cases
  • In re Dealer Mgmt. Sys. Antitrust Litig.
    • United States
    • U.S. District Court — Northern District of Illinois
    • January 21, 2022
    ...determines whether proffered expert testimony is reliable and relevant before accepting a witness as an expert." Winters v. Fru-Con Inc. , 498 F.3d 734, 741 (7th Cir. 2007) (quoting Autotech Tech. Ltd. Partnership v. , 471 F.3d 745, 749 (7th Cir. 2006) (internal quotati......
    • United States
    • U.S. District Court — Northern District of Illinois
    • March 25, 2010
    ... ... See Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 150, 120 S.Ct. 2097, 147 L.Ed.2d 105 (2000). "Once a jury has spoken, we are ... See Winters v. Fru-Con Inc., 498 F.3d 734, 741-42 (7th Cir.2007) (quoting Autotech Tech. Ltd. P'ship v ... ...
  • U.S. v. Pansier
    • United States
    • U.S. Court of Appeals — Seventh Circuit
    • August 12, 2009 governed by Federal Rule of Evidence 702 and the framework established by the Supreme Court in Daubert. Winters v. Fru-Con Inc., 498 F.3d 734, 741 (7th Cir.2007). Rule 702 allows the admission of expert testimony if "scientific, technical, or other specialized knowledge will assist the t......
  • Cage v. City of Chi.
    • United States
    • U.S. District Court — Northern District of Illinois
    • September 24, 2013
    ...suggesting the methodology Dr. Wraxall and Harmor employed in conducting the PSA Card tests was flawed. See Winters v. Fru–Con Inc., 498 F.3d 734, 742 (7th Cir.2007) (“The focus of the district court's Daubert analysis must be solely on principles and methodology, not on the conclusions the......
  • Request a trial to view additional results
1 firm's commentaries
  • No Expert Do-Overs
    • United States
    • LexBlog United States
    • March 4, 2024
    ...would be found inadmissible.” Id. A plaintiff seeking to replace an excluded expert likewise drew back a nub in Winters v. Fru-Con Inc., 498 F.3d 734 (7th Cir. 2007). Rule 702 “does not include a dress rehearsal or practice run for the parties.” Id. at 743 (citation and quotation marks omit......
1 books & journal articles
  • Witness
    • United States
    • James Publishing Practical Law Books Trial Objections
    • May 5, 2022
    ...the proper methodology for proposing alternative designs includes more than just conceptualizing possibilities. Winters v. Fru-Con Inc. , 498 F.3d 734, 743 (7th Cir. 2007). The district court properly exercised its discretion in finding that defendant’s proposed experts were not reliable an......

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