Gecker v. Menard

FRANCIS GECKER, solely as Chapter 7 Trustee for CYNTHIA COLLINS Plaintiff, v. MENARD, INC. a/k/a MENARDS Defendant

No. 16 CV 50153

UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF ILLINOIS EASTERN DIVISION

August 12, 2019

Magistrate Judge Jeffrey T. Gilbert

MEMORANDUM OPINION AND ORDER

This case is before the Court on Plaintiff's Motions to Strike Defendants' Experts Dr. Jacob L. Fisher [ECF No. 119] and Dr. William J. Hopkinson [ECF No. 120]. For the reasons discussed below, Plaintiff's Motions are denied.

BACKGROUND

Plaintiff alleges she was injured when a shopping cart made contact with her hip outside of a Menards home improvement store. Plaintiff and two other individuals were present at the time of the accident: Donnie Raulston, the store employee pushing the train of shopping carts, and Cornelia Smiley, a friend with whom Plaintiff was conversing. While the fact that a cart struck Plaintiff is not in dispute, the parties disagree as to the nature, cause, and extent of Plaintiff's injuries. In anticipation of trial, Defendants retained and disclosed two experts, Dr. Jacob L. Fisher and Dr. William J. Hopkinson. Dr. Fisher is a Ph.D. and biomechanical engineer who, using photogrammetry, recreated the scene of Plaintiff's accident in order to opine as to whether the mechanism of the accident is biomechanically consistent with Plaintiff's injuries. Dr. Hopkinson, M.D., is a board-certified orthopedic surgeon and Surgeon-in-Chief at Loyola University Medical Center. Dr. Hopkinson conducted an independent medical examination of Plaintiff and opined as to the cause of Plaintiff's injuries.

INTRODUCTION

Federal Rule of Evidence 702 and the United States Supreme Court's decision in Daubert v. Merrell Dow Pharmaceuticals, 509 U.S. 579 (1993), govern the admissibility of expert testimony in federal court. Hall v. Flannery, 840 F.3d 922, 926 (7th Cir. 2016). The familiar two-step Daubert framework allows admission of expert testimony that is "relevant to a fact in issue, is based on sufficient facts or data, and is the product of reliable scientific or other expert methods that are properly applied." Stuhlmacher v. Home Depot U.S.A., Inc., 774 F.3d 405, 409 (7th Cir. 2014); see also, Higgins v. Koch Dev. Corp., 794 F.3d 697, 704 (7th Cir. 2015) ("Rule 702 and Daubert require the district court to determine whether proposed expert testimony is both relevant and reliable."). The district court is the "gatekeeper" of expert testimony but must be mindful of the fact that "the key to the gate is not the ultimate correctness of the expert's conclusions," but "the soundness and care with which the expert arrived at her opinion." Schultz v. Akzo Nobel Paints, LLC, 721 F.3d 426, 431 (7th Cir. 2013).

A court will admit expert testimony only where the expert "(i) is qualified to offer opinion testimony under Rule 702, (ii) has employed a reliable methodology, (iii) proposes to offer opinions that follow rationally from the application of his knowledge, skill, experience, training, or education, and (iv) presents testimony on a matter that is relevant to the case at hand, and thus helpful to the trier of fact." Mintel Int'l Grp., Ltd. v. Neergheen, 636 F. Supp. 2d 677, 684-85 (N.D. Ill. 2009) (internal quotation marks omitted). The proponent of expert testimony bears the burden of proving the testimony is admissible. Fail-Safe, L.L.C. v. A.O. Smith Corp., 744 F. Supp. 2d 870, 887 (E.D. Wis. 2010).

An expert may be qualified "by knowledge, skill, experience, training or education" and need not have any "particular credentials." FED. R. EVID. 702; Tuf Racing Prod., Inc. v. Am. Suzuki Motor Corp., 223 F.3d 585, 591 (7th Cir. 2000). The court must consider "'a proposed expert's full range of practical experience as well as academic or technical training when determining whether that expert is qualified to render an opinion in a given area.'" Trustees of Chicago Painters & Decorators Pension, Health & Welfare, & Deferred Sav. Plan Trust Funds v. Royal Int'l Drywall & Decorating, Inc., 493 F.3d 782, 788 (7th Cir. 2007) (quoting Smith v. Ford Motor Co., 215 F.3d 713, 718 (7th Cir. 2000)). When assessing whether an expert is qualified, the court is "not concerned with the witness's general qualifications." Hall, 840 F.3d at 926. Instead, the court examines whether the expert has the necessary qualifications to support "'each of the conclusions he draws.'" Id. (quoting Gayton v. McCoy, 593 F.3d 610, 617 (7th Cir. 2010)). In other words, the expert must be "qualified to offer opinions in the specific area of his or her proposed testimony." Bone Care Int'l LLC v. Pentech Pharm., Inc., 2010 WL 3928598, at *1 (N.D. Ill. 2010).

Courts have broad latitude when deciding whether an expert's testimony is reliable. Higgins, 794 F.3d at 704. Reliability involves, "among other things: (1) whether the proffered theory can be and has been tested; (2) whether the theory has been subjected to peer review; (3) whether the theory has been evaluated in light of potential rates of error; and (4) whether the theory has been accepted in the relevant scientific community." Baugh v. Cuprum S.A. de C.V., 845 F.3d 838, 844 (7th Cir. 2017). To satisfy reliability, an expert may not "simply assert[s] a 'bottom line'" or base her opinion on "subjective belief or speculation." Metavante Corp. v. Emigrant Sav. Bank, 619 F.3d 748, 761 (7th Cir. 2010). Rather, an expert's testimony must demonstrate "the same level of intellectual rigor that characterizes the practice of an expert in the relevant field." Kumho Tire Co. v. Carmichael, 526 U.S. 137, 153 (1999).

The relevance standard for expert testimony is similarly liberal. Hale v. State Farm Mut. Auto. Ins. Co., 2016 WL 6947065, at *2 (S.D. Ill. 2016). Simply put, an expert's testimony must "assist[] the jury in determining any fact at issue in the case." Stuhlmacher, 774 F.3d at 409. If "the jury is able to evaluate the same evidence and is capable of drawing its own conclusions," then the expert's testimony is not helpful. Sanders v. City of Chicago Heights, 2016 WL 4398011, at *4 (N.D. Ill. 2016).

The court's application of these admissibility standards "is not intended to supplant the adversarial process." Ortiz v. City of Chicago, 656 F.3d 523, 536 (7th Cir. 2011). Even "shaky" testimony may satisfy Rule 702 and Daubert, Bielskis v. Louisville Ladder, Inc., 663 F.3d 887, 894 (7th Cir. 2011), as it ultimately is for the jury to determine the accuracy of admissible expert evidence that has been "tested" through "'vigorous cross-examination, presentation of contrary evidence, and careful instruction on the burden of proof.'" Lapsley v. Xtek, Inc., 689 F.3d 802, 805 (7th Cir. 2012) (quoting Daubert, 509 U.S. at 596).

I.MOTION TO STRIKE DR. JACOB L. FISHER'S REPORT ANDBAR DR. FISHER AS AN EXPERT WITNESS

Defendant retained Dr. Fisher, a Ph.D. and biomechanical engineer, to recreate the scene of Plaintiff's accident using photogrammetry and to assess whether the mechanism of the cart accident was biomechanically consistent with Plaintiff's injuries. Dr. Fisher's qualifications as a biomechanical engineer are not in dispute. Dr. Fisher received a Ph.D. in bioengineering from the University of Pennsylvania and graduated summa cum laude with a Bachelor of Science degree from Pennsylvania State University. He has testified as an expert in both state and federal court, and his qualifications have previously passed muster under the Daubert framework within this circuit. Hopey v. Spear, 2016 WL 4443205 (C.D. Ill. 2016).

Here, Dr. Fisher arrived at his conclusions based on his review of depositions and statements of eyewitnesses, medical experts, and Plaintiff herself. Dr. Fisher also relied upon photographs of the incident location and three surveillance videos from the date of the incident. Additionally, Dr. Fisher reviewed two investigation reports, Plaintiff's medical records, and with respect to the shopping cart itself, examined photographs, a specification sheet, and two physical exemplar shopping carts. He also reviewed several medical studies related to hip injuries, focusing specifically on the mechanism and cause of labral tears.

More controversial from Plaintiff's perspective was Dr. Fisher's use of 3D scans taken by Dr. Fisher's colleagues, rather than by Dr. Fisher himself. As Dr. Fisher stated in his report and during his deposition, he relied on interior and exterior laser scans of the store entrance taken by other individuals at Exponent, the engineering and scientific consulting firm at which Dr. Fisher works. These scans ultimately aligned, or registered, to build a 3D point cloud of the location of Plaintiff's accident. Dr. Fisher himself examined and measured exemplar Menards shopping carts, which he subsequently used to create a 3D model of the cart train that made contact with Plaintiff. This model of the cart train was, in turn, placed within the 3D point cloud of the accident scene and oriented so that it matched the length and position of the cart train captured in store surveillance footage at various points in time. Using photogrammetry, Dr. Fisher matched the frame, position, orientation, and length of the cart train so as to re-create how, and to what ultimate effect, the cart train struck Plaintiff on the date of the incident.

Based on the above sources, and utilizing the 3D model he created, Dr. Fisher theorized that the dynamics of the incident occurred as follows. A cart train of approximately seven to nine carts made contact with Plaintiff, and when it did, it was traveling at a speed much lower than 3.5 feet per second. Dr. Fisher calculated this speed based, in part, on surveillance video that capturedMr. Raulston pushing the cart train just before the accident. In estimating the cart train's speed at the time of the accident, Dr. Fisher found it particularly helpful that a frame of the surveillance video shortly before the accident showed Mr. Raulston remove his hands from the cart...