Summary
holding that the breach of implied warranty of merchantability claim was merged into the plaintiff's IPLA claims
Summary of this case from Constructora Mi Casita S. de R.L. de C.V. v. Nibco Inc.Opinion
Case No. 1:02-cv-1301-DFH-WTL.
March 24, 2005
ENTRY ON MOTIONS FOR SUMMARY JUDGMENT AND RELATED MOTIONS
Plaintiff Ronald Henderson is a diesel truck mechanic who was seriously injured when a component of the pressurized air suspension system of a Freightliner FL-106 truck burst while he was under the truck. In this diversity action, Henderson and his former wife Christine have sued the manufacturers of the truck and of several components of its suspension system under the Indiana Products Liability Act ("IPLA"). Plaintiffs have also sued for common law negligence and breach of implied warranties.
The defendants can be divided into three groups for purposes of the case. Freightliner, LLC manufactured the FL-106 truck. Firestone Industrial Products Company and BFS Diversified Products, LLC (together "Firestone") manufactured an allegedly defective air spring component of the truck's suspension system. Hendrickson Truck Suspension Systems, the Boler Company, and Hendrickson Spring (together "Hendrickson") manufactured an allegedly defective leaf spring that was part of the suspension. The defendants have moved separately for summary judgment on various grounds. They have also moved to strike the testimony of plaintiffs' expert witnesses and to strike plaintiffs' surreply brief. Plaintiffs have moved to strike a portion of Hendrickson's reply brief.
For the reasons discussed below, the court denies defendants' motions for summary judgment as to the core product liability claims. Plaintiffs' common law claims and breach of implied warranty claims are in effect superseded by or merged into their statutory product liability claims, so the case will proceed on only the statutory claims. Defendants' motions to strike or exclude plaintiffs' expert testimony are denied, except that Dr. Walson may not testify as to whether instructions about torque on the relevant U-bolts were confusing and defective. Plaintiffs' motion to strike the portion of Hendrickson's reply brief addressing the issue of privity is granted. All defendants' motions to strike plaintiffs' surreply briefs concerning the testimony of Timothy Couch are denied.
Undisputed Facts
In considering a motion for summary judgment, the court does not try to determine the credibility of conflicting evidence. Instead, the court must consider all evidence in the light reasonably most favorable to the non-moving parties, giving them the benefit of conflicts in the evidence and any favorable and reasonable inferences that could be drawn from the evidence. See Anderson v. Liberty Lobby, 477 U.S. 242, 255 (1986). Construing the evidence in that light, the court assumes the following facts are true for purposes of defendants' motions for summary judgment.
The FL-106 Freightliner in question went into service on July 15, 2000. On August 24, 2000, it was serviced in the state of Washington because the driver's side air suspension had failed after about 18,000 miles. The piston was missing and the air bag, a component of the air spring assembly, had a hole in it. Pl. Ev. Tab 14 (Resp. to Hendrickson). A new air bag and piston assembly was installed. Two days later, the owner brought the truck in for repairs to Stoops Freightliner-Quality Trailer, Inc. ("Stoops") in Indianapolis. The new air bag and piston assembly on the driver's side had failed.
Richard Taylor was the Stoops mechanic assigned to repair the failed air spring. He did so by replacing the rubber air bag and piston assembly. After he finished, he noticed that the air spring he had repaired was still not quite vertical. He told his foreman of the problem. Because Taylor was at the end of his shift, he was not assigned the job of fixing the leaning air spring. Taylor Dep. 30, 39.
Plaintiff Ronald Henderson was also employed as a mechanic at Stoops. His shift began on the morning of August 27, 2000. He was assigned to repair the leaning air spring. Henderson Dep. 70, 72. Sometime after receiving the assignment, Henderson rolled under the FL-106 truck on his creeper, a low rolling platform used by mechanics to move around under vehicles. Id. at 79. He had not released the air in the air suspension system, so it remained pressurized when he rolled under the truck. Id. at 83. Also, the truck was loaded with freight when Henderson rolled under it. Barker Dep. 25.
Freightliner provides instructions for service of its trucks in a Business Class Trucks Service Manual ("Service Manual"). The Service Manual provides the following instructions for replacement of an air spring assembly:
Replacement:
1. Park the vehicle on a level surface. Shut down the engine. Set the parking brake and chock the front tires. Raise the vehicle frame and support it with safety stands to remove all weight from the air springs.
2. Disconnect the leveling valve and exhaust all air from the air springs.
Freightliner Ex. H at Ex. 6. Henderson was familiar with the warning and with the need to take these steps, including releasing the air from the system, before beginning to work on the suspension system. Henderson Dep. at 6.
While Henderson was beneath the truck, the air spring assembly exploded, resulting in his serious injuries. The focal point of the explosion was the plastic composite piston, also called a "pedestal." The piston is a component of the air spring assembly and is critical to the high pressure air suspension system.
The parties dispute whether Henderson rolled under the truck merely to diagnose or inspect the leaning air spring, or whether he had actually started to work on it. Henderson does not recall anything that occurred after he rolled under the truck. Henderson Dep. 82. After Henderson was taken to the hospital, a co-worker inspected the scene and found tools under the truck, including an impact gun, some sockets, and a wrench. Barker Dep. 20-21.
Mechanic Timothy Couch was assigned to replace the failed air spring assembly on the FL-106. Couch Dep. 18-19. He was the first mechanic to work on the truck since Henderson's injury. Id. at 18. Couch found a deep-well socket wedged between the truck's frame and the axle housing. The socket belonged to Henderson. Couch testified that mechanics put such sockets in that location to prevent the frame from lowering completely down onto the axle housing when the air is released from the suspension system. Having the frame supported in that way makes work on the air spring assembly easier. Id. at 32-33.
Couch removed the failed air spring assembly that injured Henderson. Removing an air spring assembly requires the mechanic to loosen U-bolts that hold the truck's leaf springs in place. The leaf springs are integral to the truck's air suspension system. Proper alignment of a leaf spring is necessary for proper alignment of an air spring assembly.
The parties dispute whether the U-bolts securing the leaf spring were tight when Couch began to remove the failed air spring assembly, or whether Henderson had already loosened them. As explained in more detail below in the discussion of the misuse and incurred risk defenses, the court finds, applying the standard for a motion for summary judgment, that the evidence would allow a reasonable jury to find that Henderson had not loosened the U-bolts when the piston exploded. A reasonable jury could find that Henderson had not begun to service the truck at all, that he had rolled under the truck only to inspect the suspension system, and that he had placed the deep well socket on the frame so he would have extra working space after he bled the air out of the suspension.
Couch installed an aluminum replacement piston as part of his repairs to the truck. At the time the truck was inspected for purposes of litigation, the truck had 200,000 miles on it. The original leaf spring remained intact and functional, as did the aluminum replacement piston.
The Freightliner FL-106 truck at issue had an auxiliary axle added to it, known as a "push axle" or a "tag axle." The axle had been added at some unknown date before Henderson's injury and was in place at the time of the injury. The axle was not manufactured, designed or installed by Freightliner. The extra axle did not drive the truck, but it helped handle additional weight. Other facts are noted below, applying the standard for a motion for summary judgment.
Discussion
The multiple motions present numerous issues. The court begins by sorting out the legal grounds for recovery, then turns to the asserted defenses of misuse, incurred risk, and product alteration. The court then turns to the related issues of expert testimony and proof of defects.
I. Legal Theories
The Indiana Products Liability Act ("IPLA") governs "all actions that are: (1) brought by a user or consumer; (2) against a manufacturer or seller; and (3) for physical harm caused by a product; regardless of the substantive legal theory or theories upon which the action is brought." Ind. Code § 34-20-1-1. This section was amended in 1995 and recodified in 1998 to apply to all product liability claims. See Butler v. City of Peru, 733 N.E.2d 912, 918 n. 2 (Ind. 2000), citing Pub.L. No. 278-1995, § 1, 1995 Ind. Acts 4051; and Pub.L. No. 1-1998, § 15, 1998 Ind. Acts 125.
Plaintiffs have also asserted claims under the common law of negligence and claims for breach of an implied warranty of merchantability. The IPLA effectively supplants both the common law negligence claims and the breach of implied warranty claims. All of plaintiffs' claims in this case are brought by a user or consumer, against a manufacturer or sellers, for physical harm caused by a product. Plaintiffs' common law negligence claims and breach of implied warranty claims will therefore be treated as merged into the IPLA claims. The jury will be instructed only on the IPLA.
Plaintiffs' motion to strike a portion of Hendrickson's reply brief raising a new issue (lack of privity) is hereby granted. Though this decision has little practical effect, it is still worth noting that a reply brief is not an appropriate occasion for offering an entirely new argument in favor of summary judgment. Hendrickson's suggestion that this tactic is acceptable because it had asserted lack of privity as an affirmative defense in its answer entirely misses the point. When a party moves for summary judgment on specified grounds, the opponent is entitled to respond to those grounds, and need not respond with argument and evidence on other theories that might have been raised but were not. See Malhotra v. Cotter Co., 885 F.2d 1305, 1310 (7th Cir. 1989). If courts do not enforce that limit, summary judgment practice will become more expensive and uncertain.
Freightliner's motion for summary judgment poses a similar problem, though there is no separate motion to strike. Freightliner's reply brief raises a new theory of alleged product misuse, asserting at pages 13-15 that Henderson misused the truck by driving it from one service bay to another. The court has simply disregarded that improper attempt to inject a new ground for summary judgment into the reply brief.
II. The Incurred Risk and Misuse Defenses
All defendants argue that they are entitled to summary judgment because Henderson misused the product, or incurred the risk of harm, by working on the truck's suspension system without first bleeding the air pressure from the system. Misuse of a product is the failure to use it in a reasonably expected manner. Leon v. Caterpillar Industrial, Inc., 69 F.3d 1326, 1343 (7th Cir. 1995). Indiana Code § 34-20-6-4 provides:
It is a defense to an action under [the IPLA] that a cause of the physical harm is a misuse of the product by the claimant or any other person not reasonably expected by the seller at the time the seller sold or otherwise conveyed the product to another party.
The misuse defense is not necessarily a complete defense but is an element of comparative fault. Chapman v. Maytag Corp., 297 F.3d 682, 689 (7th Cir. 2002). Misuse has been further defined as "use for a purpose or in a manner not foreseeable by the manufacturer." Barnard v. Saturn Corp., 790 N.E.2d 1023, 1030 (Ind.App. 2003) (citation omitted).
The incurred risk defense is closely related, at least under the circumstances here. To prevail on an incurred risk defense, the defendants must present sufficient evidence to convince a reasonable jury that Henderson had actual knowledge of the specific risk that he faced. Ferguson v. Modern Farm Systems, Inc., 555 N.E.2d 1379, 1381 (Ind.App. 1990). To prevail at summary judgment on this defense, the defendants would have to show that any reasonable jury would be required to find that Henderson had such knowledge. "Incurred risk involves a mental state of venturousness on the part of the actor and demands a subjective analysis into the actor's actual knowledge and voluntary acceptance of the risk." Cole v. Lantis Corp., 714 N.E.2d 194, 200 (Ind.App. 1999). Because incurred risk is also an element of comparative fault, defendants would need to show that any reasonable jury would have to find that Henderson's fault was greater than fifty percent. Smock Materials Handling Co., Inc. v. Kerr, 719 N.E.2d 396, 402 (Ind.App. 1999).
The defendants rely on evidence that shows, they contend, that Henderson had loosened the U-bolts on the leaf spring while the suspension system was still pressurized. If Henderson had done that, it would have been very dangerous and directly contrary to product warnings.
Defendants are not entitled to summary judgment on the misuse and incurred risk defenses. The evidence on this record would easily allow a jury to find that Henderson had not begun working on a still pressurized air suspension system when the piston exploded. He was certainly preparing to work on the system. He had gathered some tools. He was underneath the truck looking at the suspension system. Perhaps most telling, a jury could find that he put the deep well socket on the truck frame so that he would have more room to work after bleeding the air from the system.
The defendants point to statements in Mr. Henderson's deposition testimony as evidence that he was aware of the specific risk posed by the air spring.
Q Why do you want to get the air out of the system before you remove the components?
A So it won't explode.
Henderson Dep. 6. This evidence helps support plaintiffs' case. Henderson understood that it was dangerous to work on a pressurized suspension system. That understanding provides some evidence that weighs against the circumstantial evidence that defendants cite to argue that he began working while the system was still pressurized. Perhaps even more important is the fact that Henderson put his deep well socket in a position where it would be used to support the truck after he bled the air pressure from the system. That fact weighs in favor of an inference that he intended to bleed the air pressure before working on the system, and that he would not have begun working on the system while it was still pressurized. Henderson also gave additional testimony that would support a finding that he rolled under the truck not to service it but to inspect it.
Q Well, wouldn't you have let the air out of the system in this case involving your accident, August 27, 2000, as part of your process of servicing the air bag?
A No.
Q Why not?
A Because I would have visually inspected it first.
Henderson Dep. 83.
Defendants rely most heavily on a few passages in the deposition testimony of Timothy Couch, the mechanic who repaired the FL-106 after the explosion that injured Henderson. Defendants characterize Couch's deposition testimony on this latter point as unambiguous in their favor. The court does not agree.
At his deposition Couch was shown a repair order written by someone other than himself and summarizing work done on the FL-106. On the repair order, an entry labeled "B" includes the following statement: "B. THE DRIVERS SIDE AIR BAG PER OWNER IS BUSTED CHECK AND REPAIR." Below that statement, also under entry B is this notation: "CK'D FOUND THE PED ON LEFT REAR AIR BAG BROKE DAMAGED BAG, U-BOLTS LOOSE SPRING SHIFTED. R/R AIR BAG, SHIFTED AXLE BACK TO PROPER POSITION TORQUED U-BOLTS." Pl. Ev. Tab 16 (Resp. to Hendrickson). Couch was asked what this entry meant. He responded: "The mechanic looked at the truck, basically found the pedestal damaged and broken, the U-bolts were not tight and the spring was not in position. Removed and replaced the air bag, shifted the axle back to the position that it should be in and retorqued the U-bolts." Couch Dep. 26. When asked if he was the mechanic who performed that work described in entry B, Couch responded that he was. Id.
On the repair order, "AIR BAG" refers to the flexible rubber housing around the air spring assembly piston. "PED" stands for "pedestal," which is another term for the plastic composite piston. "CK'D" stands for "checked." "R/R" stands for "removed and replaced." "Spring," as used in "Spring shifted," refers to the leaf spring.
Defendants characterize this evidence as follows:
In his deposition, Mr. Couch read through the work order for the repair of the air spring after Mr. Henderson's accident that stated, "Ubolts loose and spring shifted." Mr. Couch explained that the mechanic who worked on the truck "found the pedestal damaged and broken, the U-bolts were not tight and the spring was not in position." Mr. Couch testified under oath that he was the mechanic who performed that check and performed that work. Again Mr. Couch's testimony is significant because it is evidence that Plaintiff Ronald Henderson actually performed work on the truck by loosening the U-bolt while the system was pressurized.
Firestone MSJ Reply Br. at 4.
From the court's review of the Stoops work order, it is not clear that the "B" entries that Couch read aloud and interpreted in his deposition even refer to the work he actually performed himself. Portions of Couch's testimony at page 26 of his deposition seem to correct his earlier statement that he had done the work on the "B" entries. The "B" entries start with the owner's complaint that the driver's side air bag was broken, and the entries then summarize the repair work. That seems to be the original work that Taylor did. The "C" entries start with the exploded piston that injured Henderson: "PEDESTAL ON AIR BAG JUST INSTALLED EXPLODED." See Pl. Ev. Tab 16 (Resp. to Hendrickson). After identifying the parts replaced as part of "C," including the air spring, piston, and air bag, the summary goes on to describe what appears to be the work actually performed by Couch after Henderson's injury: "CK'D FOUND PEDESTAL ON AIR BAG JUST INSTALLED ON LINE B OF THIS REPAIR ORDER EXPLDED DAMAGED BAG. R/R AIR BAG." Id. There is no reference to loose U-bolts in that entry.
In any event, what is most striking about Couch's quoted deposition testimony is that defense counsel did not ask Couch directly whether he found the U-bolts loose when he began working on the FL-106 after Henderson was injured. Couch answered that question in an affidavit that plaintiffs have submitted in opposition to summary judgment. He noted that he was the first person to work on the truck after Henderson's accident. Couch continued: "When I began work on the truck, the left (driver's side) u-bolt on the drive axle was fully tight, not loosened in any way. I did not find anything that had been loosened. During the course of replacing the air spring assembly, I loosened the u-bolt with an impact wrench, moved the leaf spring to the extent I could toward the outward side (left side) of the truck by use of a port-o-power tool, then re-tightened the u-bolt." Couch Aff. ¶¶ 5-7.
That affidavit testimony is consistent with Couch's later deposition testimony that directly addressed the key issue. He was asked to describe his repair work:
Q You were discussing that there was some alignment issues. Can you describe for me kind of what you did to maybe correct the situation?
A Loosened the U-bolts on the left side spring and moved the air spring outward toward the outward side of the truck.
Couch Dep. at 41. This testimony clearly implies that the U-bolts were tight when he began working on the truck.
In their reply briefs, all defendants objected to the Couch affidavit, quoted above. They argued that the affidavit was an improper attempt to create a genuine issue of fact by recanting deposition testimony. The Seventh Circuit has often warned that a party cannot avoid summary judgment by attempting to submit an affidavit that recants or contradicts the affiant's prior deposition testimony. See, e.g., Stinnett v. Iron Works Gym, 301 F.3d 610, 614-15 (7th Cir. 2002) (affirming summary judgment; district court has discretion to disregard affidavits that attempt to repair deposition testimony if no suitable explanation is offered, such as confusion, mistake, or lapse of memory); Piscione v. Ernst Young, LLP, 171 F.3d 527, 532 (7th Cir. 1999) (collecting cases); Adelman-Tremblay v. Jewel Companies, 859 F.2d 517, 521 (7th Cir. 1988); (applying principle to deposition and affidavit of non-party witness); Miller v. A.H. Robbins Co., 766 F.2d 1102, 1105 (7th Cir. 1985).
That rule does not come into play, however, unless the affiant's prior deposition testimony was clear and specific on the point. E.g., Maldonado v. U.S. Bank, 186 F.3d 759, 769 (7th Cir. 1999) (affirming denial of motion to strike affidavit; opposing party "simply never asked about some of the evidence provided in [the] supplemental affidavit and its attachments," and many alleged discrepancies only clarified previous testimony); Shepherd v. Slater Steels Corp., 168 F.3d 998, 1007 (7th Cir. 1999) (reversing summary judgment: "where the deposition testimony is ambiguous or incomplete, as it is here, the witness may legitimately clarify or expand upon that testimony by way of an affidavit"); Holland v. Jefferson Nat'l Life Ins. Co., 883 F.2d 1307, 1314 n. 3 (7th Cir. 1989); see also Pries v. Honda Motor Co., 31 F.3d 543, 544-45 (7th Cir. 1994) (reversing summary judgment in product liability case; plaintiff explained deposition testimony, and physical evidence supported her theory of defect).
The rule against submitting affidavits that contradict prior depositions does not apply to Couch's testimony, where defense counsel danced around the direct question. They obtained deposition testimony they could use to support their argument, but did not get a direct answer to the critical direct question: Were the U-bolts already loose when Couch began working on the truck? In such a case, it is entirely proper for a party opposing the motion for summary judgment to submit an affidavit from the witness stating clearly the answer to the critical question. See Holland, 883 F.2d at 1314 n. 3 (reversing summary judgment where affidavit "presents no direct contradiction of any plain or unequivocal admission in her deposition. . . . Here, [plaintiff's] affidavit answers a question — a key question — that was never put to her squarely in the deposition").
Defendants' effort to discount Couch's affidavit is especially weak in this case because Couch's deposition testimony actually did directly address the critical question. As noted, at page 41 of his deposition testimony, Crouch testified that he loosened the U-bolts. Defendants are not entitled to summary judgment on the theory that Henderson misused the product or incurred the risk by working on the truck suspension system while it was still pressurized. The weight of the evidence appears to point in the opposite direction; in any event, the evidence certainly does not support defendants' view beyond a reasonable dispute.
To support these defenses, defendants also cited deposition testimony from Bruce Barker, a co-worker who thought the U-bolts had been loose when Couch started working on the truck. Barker further testified, however, that he had only a sketchy memory on the point, and that the lawyers should ask Couch, who actually worked on the truck and made the repairs. See Barker Dep. at 32,41. Barker's testimony does not entitle defendants to summary judgment.
After defendants filed their reply briefs, plaintiffs submitted surreply briefs that attached fresh copies of the Couch affidavit and argued that Couch had not contradicted his deposition testimony. All defendants then moved to strike the surreply briefs as late and unauthorized. In the court's view, the surreply briefs were late but otherwise proper. Defendants' original briefs had attempted to finesse the critical issue by ignoring Couch's testimony on the key question, and by relying on inference from some of their indirect questions to him. Plaintiffs properly responded with the Couch affidavit and other portions of his testimony. That response showed quite clearly that defendants' attempt to portray the evidence on this question as undisputed was groundless. In fact, those attempts undermined the credibility of the defense motions more broadly.
Defendants then raised new arguments in their reply briefs attacking the Couch affidavit. Local Rule 56.1(d) allows a surreply brief in opposition to summary judgment where, among other situations, the moving party's reply brief "objects to the admissibility of the non-moving party's evidence." The court believes it is fair to treat the defendants' attacks on the Couch affidavit as an attack on its admissibility. It is only fair to allow plaintiffs to respond to that argument and to explain fully why the Couch affidavit was not an improper attempt to contradict deposition testimony. Defendants point out correctly that the plaintiffs' surreply briefs were late, by varying degrees, since defendants filed their reply briefs at different times. The court believes it is in the interests of justice to consider these reply briefs, and to excuse the late filing. See Harmon v. OKI Systems, 115 F.3d 477, 481 (7th Cir. 1997) (affirming district court's decision to deny motion to strike brief and to excuse failure to comply strictly with local rules by party who sought and won summary judgment). All three defense motions to strike plaintiffs' surreply briefs are denied.
III. Alteration
Freightliner argues that the FL-106 truck was substantially altered by the addition of the auxiliary axle, also known as a push axle or tag axle. Freightliner's expert Paul Hynes testified in his affidavit that the addition of the auxiliary rear axle "increased the likelihood that a malfunction or failure of the suspension system or its component parts would occur." Freightliner argues that this substantial alteration was an unforeseeable intervening and proximate cause of Henderson's injuries. According to Freightliner, the presence of the auxiliary axle means that plaintiffs cannot establish the essential element of proximate cause, so that Freightliner is entitled to summary judgment as a matter of law.
The argument is not persuasive as a basis for summary judgment. The conclusory statement in Hynes' affidavit stops well short of claiming that the auxiliary axle actually contributed at all to the Henderson accident. "When a defendant manufacturer in a [products] liability case moves for summary judgment, it has the burden to show the uncontroverted nonexistence of at least one of the elements essential to plaintiff's case." Wolfe v. Storks RMS Protecon, Inc., 683 N.E.2d 264, 267 (Ind.App. 1997), citing Jarrell v. Monsanto Co., 528 N.E.2d 1158, 1162 (Ind.App. 1988). Freightliner has not established the "uncontroverted nonexistence" of proximate cause.
Proximate cause in a product defect action is established "if the injury caused by the product is a natural and probable consequence which was, or should have been, reasonably foreseen or anticipated in light of the attendant circumstances." Montgomery Ward Co. v. Gregg, 554 N.E.2d 1145, 1156 (Ind.App. 1990). In a product defect action, "substantial alteration of the product is relevant to the issue of proximate cause." Leon v. Caterpillar Industrial, Inc., 69 F.3d 1326, 1339 (7th Cir. 1995). The plaintiff bears the burden to show that the product reached him without substantial alteration. Bishop v. Firestone Tire Rubber Co., 814 F.2d 437, 443 (7th Cir. 1987). Substantial alteration is "any change which increases the likelihood of a malfunction, which is the proximate cause of the harm complained of, and which is independent of the expected and intended use to which the product is put." Leon, 69 F.3d at 1338, quoting Schooley v. Ingersoll Rand, Inc., 631 N.E.2d 932, 938 (Ind.App. 1994).
The defendants here rely on Wolfe, Leon, and Bishop to argue that the plaintiffs cannot meet their burden of proof on proximate cause. However, all three cases involved critical facts missing from this case. In all three cases the alteration was a direct and undisputed cause of the injury, and there was no evidence independent of the alteration that the product was defective when it left the control of the defendant manufacturer.
In Leon, a retailer had installed a new seat and a "dead man's switch" on a forklift. An injured employee sued the manufacturer for strict liability after the dead man's switch (designed to disengage the transmission when no one was sitting on the seat) failed and the employee was struck by the forklift. On the issue of strict liability, the Seventh Circuit upheld a district court's dismissal of the claim because the evidence was undisputed, indeed it was confirmed by the plaintiff's own expert, that the added seat and the added dead man's switch combined to cause the injury. 69 F.3d at 1332. Further, it was "undisputed that the forklift was not in a defective or in an unreasonably dangerous condition when it left [the manufacturer]." Id. at 1340. Here, there is no evidence that the auxiliary axle contributed to the injury at all. There certainly is not undisputed evidence that it did contribute to the injury. It is also disputed whether the FL-106 left Freightliner's control in a defective condition. Plaintiffs have raised issues of fact on these questions independent of the auxiliary axle.
Similarly, in Wolfe, the Indiana Court of Appeals affirmed summary judgment for the defendant manufacturer where a meat processing worker was injured after her clothing became entangled in a turning bolt which protruded from a hydraulic motor. In that case, the motor with the protruding bolt was a replacement motor, supplied by a supplier other than the defendant manufacturer of the original motor. The manufacturer's original motor did not have a protruding bolt. The court noted that "[i]t is a defense that the cause of the physical harm is a modification or alteration of the product . . . if such modification or alteration is the proximate cause of physical harm where such modification or alteration is not reasonably expectable to the seller." 683 N.E.2d at 268 (emphasis added). The court observed that:
In the present case, Wolfe was injured when her smock became caught in a protruding, turning bolt which connected the coupler to the hydraulic motor. The original system provided by Stork had no coupler and no protruding bolts. Thus, the undisputed, designated evidence reveals that the dangerous instrumentality, the protruding, turning bolt, was introduced when the hydraulic motor was replaced. As noted above, there is no evidence of Stork's involvement in the replacement of the conveyor motor.
. . . . [W]e conclude, as a matter of law, that the replacement of the conveyor motor with the addition of the protruding, turning bolts, one of which directly caused Wolfe's injuries, constituted the sole proximate cause of Wolfe's injury which served to cut off any liability Stork may have had. Stork has established the uncontroverted nonexistence of the element of proximate cause.
. . . . In the present case, Wolfe failed to establish that her injuries were proximately caused, even remotely, by Stork. As noted above, the replacement of the hydraulic motor with the protruding, turning bolts was the sole proximate cause of Wolfe's injuries.Id. at 268-69 n. 1 (emphasis added). Defendants seek to analogize the added auxiliary axle here to the added motor and protruding bolt in Wolfe. However, as the language of the Court of Appeals makes clear, the protruding bolt in that case, like the dead man's switch in Leon, was the undisputed sole and direct cause of the plaintiff's injury. That is simply not the case here.
Finally, in Bishop, the Seventh Circuit upheld a directed verdict in favor of a defendant tire manufacturer where the plaintiff was injured when a lock ring on a tire gave way under pressure while the plaintiff was inflating the tire. "The evidence presented was uncontroverted that the lock ring which caused Bishop's injuries had undergone a substantial change after it had left the manufacturer and prior to Bishop's accident, and thus Firestone was entitled to a directed verdict." 814 F.2d at 443 (emphasis added).
In each of those cases, the cause of the accident was shown, beyond reasonable dispute, to be the identified alteration. Freightliner argues: "Plaintiffs have failed to produce any evidence — as required — to establish that the addition of the [auxiliary] axle was not a superceding and intervening cause of Plaintiffs' alleged injuries." Freightliner MSJ Br. at 7. In fact, the plaintiffs have come forth with evidence from which a jury could infer that the leaf spring and air spring with which the truck left Freightliner's control were the sole causes of the injury. That evidence constitutes evidence that the auxiliary axle was not the cause at all. Freightliner has not come forward with evidence tending to show that the auxiliary axle contributed to this injury in any way. Hynes testified only vaguely that the alteration "increased the likelihood" that some unspecified "malfunction or failure of the suspension system or its component parts would occur." Hynes Aff. ¶ 13. In addition, plaintiffs have pointed to evidence from Stoops employee Bruce Barker that the auxiliary axle was in place and was supporting part of the weight of the truck's load at the time of the accident. Barker Dep at 41-42, 44-45. That evidence tends to show that the auxiliary axle contributed nothing to the accident. Freightliner may make its substantial alteration argument to a jury. Its motion for summary judgment on this point is denied.
IV. Expert Testimony and Product Defects
The Indiana Product Liability Act provides in part that:
a person who sells, leases, or otherwise puts into the stream of commerce any product in a defective condition unreasonably dangerous to any user or consumer . . . is subject to liability for physical harm caused by that product to the user or consumer [if] that user or consumer is in the class of persons that the seller should reasonably foresee as being subject to the harm caused by the defective condition.
Ind. Code § 34-20-2-1. Under the IPLA, plaintiffs must prove: (1) the product was "defective" and as a result "unreasonably dangerous"; (2) the defect existed at the time the product left the defendants' control; (3) the product was expected to and did reach the consumer without substantial alteration; (4) the plaintiff's injuries were proximately caused by the defect in the product. Moss v. Crosman Corp., 136 F.3d 1169, 1171 (7th Cir. 1998). Where the existence of a defect depends on matters beyond the common understanding of a lay juror, admissible expert testimony is required to sustain the plaintiff's burden of proof on the question. Cansler v. Mills, 765 N.E.2d 698, 706 (Ind.App. 2002).
To meet that burden, plaintiffs rely on Dr. Robert Walson and David Zedonis. Dr. Walson has a Ph.D. in metallurgical engineering and teaches at Butler University. Plaintiffs offer Dr. Walson to testify about two principal conclusions: (1) that the Firestone air spring was defective due to voids and irregularities in the plastic composite material used to manufacture the piston; and (2) that the Firestone air spring was defective due to inadequate warnings on the air spring regarding the proper torque at which to tighten the nuts securing the air spring assembly to the leaf spring. Pl. Ev. Tab 12 at 6 (Resp. to Firestone). David Zedonis is an engineer who has often worked on litigated matters. He is expected to testify about three principal conclusions: (1) that the leaf spring manufactured by Hendrickson was defective due to improper dimensions, and that the improper dimensions contributed to the failure of the air spring assembly; (2) that the air spring assembly manufactured by Firestone was defective due to weaknesses in the plastic composite material used to manufacture the air spring's piston that exploded; and (3) that by incorporating these two defective components, the FL-106 truck manufactured by defendant Freightliner was itself defective. Pl. Ev. Tab 15 at 2 (Resp. to Firestone).
Defendants have moved to strike the testimony of Dr. Walson and Zedonis. Without their opinions, plaintiffs would have no expert testimony to support their claims of product defect, so that summary judgment would be mandated on all claims. Defendants argue that the testimony of Zedonis and Dr. Walson fails to meet the standards of Rule 702 of the Federal Rules of Evidence, as articulated by Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993), and Kumho Tire Co. v. Carmichael, 526 U.S. 137 (1999).
Federal Rule of Evidence 702 governs the admissibility of such testimony because it is premised on specialized engineering knowledge. Rule 702 provides:
If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise, if (1) the testimony is based upon sufficient facts or data, (2) the testimony is the product of reliable principles and methods, and (3) the witness has applied the principles and methods reliably to the facts of the case.
The court's role in applying Rule 702 is to be a "gatekeeper." Daubert, 509 U.S. at 589. In its role as gatekeeper, the court must consider both the relevance and the reliability of the proffered evidence. Kumho Tire, 526 U.S. at 141.
A. Relevance of Both Experts' Opinions
The relevance test asks whether the fact finder will be helped by the expert testimony either to understand the evidence or to determine a fact at issue in the case. In other words, the testimony must fit the issue in the case, and about which the expert is testifying. E.g., Zarecki v. National R.R. Passenger Corp., 914 F. Supp. 1566, 1573 (N.D. Ill. 1996). Dr. Walson's and Zedonis's opinions about the design and manufacture of the plastic composite piston, the leaf spring, the FL-106 truck and the circumstances of Henderson's injury are highly relevant and fit the issues in the case. The relevance prong of the Daubert analysis is easily satisfied with regard to both Dr. Walson and Zedonis.
There is one exception, however. The motion to strike Dr. Walson's testimony will be granted in part, with respect to his opinion that the instructions to mechanics about the torque to use on the U-bolts were confusing. Dr. Walson testified that the torque applied to the U-bolts did not cause the failure of the piston. Walson Dep. at 119. Accordingly, his opinion about the instructions does not address a relevant issue that the jury would need to evaluate.
B. Reliability of Dr. Walson's Testimony
Firestone does not challenge Dr. Walson's qualifications, and the court is satisfied that Dr. Walson is qualified by both education and experience to give his proposed testimony. Dr. Walson holds a Ph.D. in metallurgical engineering, an M.S. in physics, and a B.S. in engineering physics. Pl. Ev. Tab 13 (Resp. to Firestone). He has over thirty years experience in mechanical engineering stress and materials failure analysis in academic and industry settings. Id. He has taught a seminar in automotive materials and design. Id. He has university-level teaching experience and design experience involving the composite plastic material at issue in this case. Walson Dep. 27-28, 32. Dr. Walson is president of a technical consulting company specializing in forensic engineering and failure analysis of products, systems, parts, and materials. Walson Dep. 44; Pl. Ev. Tab 13 (Resp. to Firestone).
Firestone contends that Dr. Walson's methods were not sound. It argues that "his opinions lack the requisite indicia of trustworthiness required by Daubert." Firestone Br. on Mot. to Strike at 6. Specifically, Firestone argues that Dr. Walson did not "scientifically test his positions" and "can point to no peer review or outside analysis. In short, he goes from observation to conclusion and bypasses the scientific method." Id.
In Kumho Tire, the Supreme Court explained that the four factors most often cited from Daubert — testability, peer review, known or potential error rates and standard procedures, and degree of acceptance in relevant scientific community — were addressed to scientific testimony. The relevant inquiries for other types of expert testimony may be different. 526 U.S. at 149-51. The Court instructed district judges to focus on the central goal, which is "to make certain that an expert, whether basing testimony upon professional studies or personal experience, employs in the courtroom the same level of intellectual rigor that characterizes the practice of an expert in the relevant field." Id. at 152. As a result, "the Daubert framework is a flexible one that must be adapted to the particular circumstances of the case and the type of testimony being proffered." Mihailovich v. Laatsch, 359 F.3d 892, 919 (7th Cir. 2004).
Rigid adherence to the four Daubert factors for scientific evidence is not appropriate where, as with Dr. Walson, the expert is relying on his experience in the relevant field. The concept of peer-reviewed literature, for example, does not fit this case well. See Kumho Tire, 526 U.S. at 150-51 ("relevant reliability concerns may focus upon personal knowledge or experience. . . . It might not be surprising in a particular case, for example, that a claim made by a scientific witness has never been the subject of peer review, for the particular application at issue may never previously have interested any scientist"); United States v. Allen, 269 F.3d 842, 846 (7th Cir. 2001) (affirming district court's determination that DEA agent with substantial experience was qualified expert in field of narcotics trafficking and his opinion about weapons used in narcotics trafficking was therefore reliable and relevant), quoting Fed.R.Evid. 702 advisory committee note ("In certain fields, experience is the predominant, if not sole, basis for a great deal of reliable expert testimony.").
Dr. Walson researched the suspension system, springs, composite plastics, rubber and metals involved in this case in reference materials published by the American Society of Metals International and the Society of Automotive Engineers. Walson Dep. 7-9. He reviewed the Freightliner maintenance manual for the FL-106 and also the maintenance history of the FL-106 at issue. Id. at 52-53. He visually inspected the truck and its suspension system, including the leaf spring and failed air spring assembly. Id. at 18. He examined the failed composite plastic components of the air spring assembly at his office at Butler University using an optical microscope and a scanning electron microscope. Id. at 20. Dr. Walson testified to "many years" of experience using electron scanning microscope technology for engineering failure analysis in both academic and industry settings, and to fourteen years of teaching a course in the use of the scanning electron microscope at Butler University. Id. at 42-43. Dr. Walson also performed x-ray inspection of the failed plastic composite piston, and compared it to x-rays of the other pistons from the same truck, both plastic composite and aluminum. Id. at 24, lines 6-11; 97, lines 129-37. Dr. Walson testified to twenty years of experience in the use of x-ray technology in engineering failure analysis. Id. at 24, lines 12-16. He has taught university-level courses in engineering x-ray techniques. Id. at 25-26. He received training through and is a participating member of the American Society for Nondestructive Testing. Id. at 25. He has used x-ray technology in failure analysis approximately 200 times, 20 of which involved the failure of plastics, including automotive parts, and including the composite plastic at issue in this case. Id. at 27-28. Dr. Walson has performed failure analysis on failed heavy-duty trucks, including several involving the suspension system, though not an air suspension system. Id. at 57-58.
Dr. Walson used the x-ray and electron microscopy technology to examine the failed air spring component and its non-failed counterparts to determine the origins and nature of the material failure. He testified at his deposition that these examinations revealed that the composite plastic piston contained voids or holes that its unbroken counterparts did not contain and that should not have been there. He was asked for the basis of his conclusion on this point.
Based on my experience of looking at failed parts, when you have holes in them, that is weaker than if you don't have holes in them. And we do testing for students, that's what we do: We test parts. We drill holes and show them that when you have a hole . . . it is weaker. So based on my training, experience, the part is going to be weaker with defects than if it didn't have defects.
Walson Dep. 82, lines 10-19. Dr. Walson also opined that the component materials of the composite plastic were not bonded adequately and that this contributed to its failure. He was asked for the basis of this opinion.
That would be years of experience in products where, when we made composites at John Deere, we wanted to make sure [adequate bonding] happened. . . . That you get a stronger part when the matrix is attached to the particles of glass or a reinforcing glass.Id. at 87, lines 6-11. At another point, Dr. Walson testified:
[B]ased on my experience, looking at broken parts, looking at composite parts, looking at literature, it is [an] established fact that defects reduce the strength and make the parts more susceptible to breakage. . . . The lack of bonding to glass to the matrix, this lack of uniform filling of the glass is a defect, yes.Id. at 77, lines 8-17.
Dr. Walson's testimony about the failure of the piston is based, as he notes throughout his deposition, on his years of experience in materials failure analysis. This experience included the instruments, principles and methods of analysis that he applied to the alleged material failures in this case, and some of it involved the plastic composite material at issue in this case. Dr. Walson acquired his knowledge of the use of these instruments and methods of analysis from training at universities and professional engineering organizations and has taught them to science and engineering students as well as professional engineers. Pl. Ev. Tab 13 (Resp. to Firestone). The court is satisfied that the opinions of Dr. Walson concerning the failure of the piston are based on his knowledge and professional experience, that his knowledge and personal experience form a reliable basis for expert opinion in the engineering or materials failure fields, and that he applied his knowledge and experience reliably to the specific facts of this case.
Defendants contend that the Dr. Walson has engaged in circular reasoning: from the premise that the piston exploded, he has concluded that it must have been defective. The court does not interpret his testimony that way. The fact that a brand new piston exploded just hours after it was installed does not prove conclusively that the part was defective under the law. However, the fact is surely highly relevant in the analysis. The new piston exploded without even having been subjected to the forces and rigors of highway driving. The fact that this was the third piston on a new truck is also relevant. The first had failed after about 20,000 miles. The second failed after two days of driving. The fact that the aluminum fourth replacement piston was used without incident for 180,000 miles is also relevant. Dr. Walson did not merely conclude that a failed part must have been defective because it failed. He used his professional knowledge and experience to examine the remains of the failed part, to compare them to other parts that had not failed, and to provide a plausible explanation for its failure. The explanation is reliable enough to allow it to be presented at trial and tested through the more conventional means of challenging evidence, through crossexamination and presentation of contradictory evidence. See Daubert, 509 U.S. at 595-96.
C. Reliability of Zedonis's Testimony
Both Firestone and Hendrickson have also challenged the qualifications and methodology of David Zedonis. Plaintiffs propose to have Zedonis testify (1) that the leaf spring manufactured by defendant Hendrickson was defective due to improper shape and dimensions; (2) that inherent weaknesses in the plastic composite material used to manufacture the air spring's piston constituted a design defect; and (3) that by incorporating these two defective components, the FL-106 truck manufactured by Freightliner was itself defective.
Zedonis is a registered professional engineer in Indiana. He is employed as a consulting engineer for an engineering consulting company called Forensic Services Group. Zedonis Dep. 8. He has a bachelor's degree and approximately twenty years experience in the field of mechanical engineering, including some experience in the areas of product design and testing, and including product design experience involving metals, plastics and composites. His principal area of specialty appears to be accident reconstruction. Pl. Ev. Tab 16 (Resp. to Firestone).
Zedonis's theory of the accident is that the leaf spring had dimensions that were different from those of a new leaf spring to which he compared it. This difference, he contends, caused an abnormal misalignment of the air spring assembly, so that it leaned off of vertical and caused an abnormal load of pressure on the composite plastic piston. The inherent weakness of the piston caused it to burst under this abnormal load of pressure. Thus, Zedonis contends that the failure of the piston resulted from the combination of the defective leaf spring and a piston that was too weak. In support of these opinions, Zedonis noted that the new plastic piston on the driver's side exploded, while the plastic piston on the other (less seriously misaligned) side of the truck survived for at least 200,000 miles without failing. He also noted that the aluminum replacement piston functioned for 180,000 miles without bursting under the same misalignment conditions caused by the defective leaf spring, which had not been replaced.
The defendants contend that Zedonis is not qualified to testify because he has no training or experience in truck suspensions. Plaintiffs point out that Zedonis has testified as an expert in other cases involving truck suspensions. Pl. Resp. to Boler at 9. However, this court's gatekeeper responsibilities are not discharged by relying on other courts' exercise of that function. Zedonis has no apparent practical experience with truck suspension systems in general or air springs in particular. When asked if he had "ever heard of" leaning air springs or leaning air ride suspension issues prior to this case he responded: "Not that I recall." Zedonis Dep. 30. When asked if he considered himself an expert in air spring design he responded: "Not specifically." When asked if he considered himself an expert in air spring failure he responded: "Not specifically." Id. at 150.
On the other hand, Zedonis has extensive experience in mechanical engineering and failure analysis in general. Defendants can challenge Zedonis's qualifications as not on par with the qualifications of their own experts, but a witness may testify as an expert without a perfect match between qualifications and the specific issues in the case. See Smith v. Ford Motor Co., 215 F.3d 713, 720 (7th Cir. 2000) (reversing exclusion of plaintiffs' experts who had engineering qualifications even though neither was an expert in automotive design or engineering: "[E]xpert testimony need only be relevant to evaluating a factual matter in the case. That testimony need not relate directly to the ultimate issue that is to be resolved by the trier of fact."); Owens v. Amtrol, Inc., 94 F. Supp. 2d 952, 954-55 (N.D. Ind. 2000) (allowing expert testimony from engineer with experience with pressure vessels different from the water pressure vessel at issue in the case). Zedonis is qualified to assist the trier of fact in determining "what happened, and why it happened and what's wrong." That is, he is qualified to describe how the leaf spring was different in size and shape from one made to the manufacturer's specifications; how this difference caused a misalignment that increased the pressure on the air spring; and how he concludes this increased pressure caused the plastic piston to burst. He is also qualified to opine as to the relative strength of the composite plastic material used to manufacture the piston. See Smith, 215 F.3d at 720.
The central question then becomes whether Zedonis applied reliable methods in arriving at his opinion of what happened — i.e., the shape and dimensions of the leaf spring increasing the pressure on the air spring — to cause the plastic piston to burst, injuring Henderson. Zedonis examined the failed air spring assembly, which had been saved. He also inspected the truck on January 19, 2004, approximately three and a half years after the accident. The failed air spring had been replaced by that time, but the leaf spring had not been replaced. He examined the truck's overall suspension system, and removed and replaced both air springs. He examined the surviving plastic composite piston and the aluminum piston that was used to replace the one that burst. Pl. Ev. Tab 15 (Resp. to Firestone). He removed the driver's side leaf spring and measured its dimensions. For this task, Zedonis relied on a service bulletin created by Freightliner, the "Freightliner Airliner Suspension Air-Spring Bag Misalignment Troubleshooting Service Bulletin (32-40)," and fabricated a measuring tool ("span tool") pursuant to instructions provided in the bulletin. According to Zedonis's report:
[D]imensional checks made on the removed [leaf] spring showed it was a deviated part per the bulletin. [Also], the position of the spring mounting hole location in the new spring to be installed would improve the centering condition of the air spring by approximately 3/4 of an inch. Use of the 16inch span tool described in the bulletin showed that the hole of the old spring was off position (short) and that the new spring was satisfactory. This measured condition documents the Hendrickson spring as a defective part in the rear suspension. This part should be replaced according to the Freightliner Airliner Suspension Air-Spring Bag Misalignment Troubleshooting Service Bulletin (32-40).Id. at 5.
Zedonis has described a method satisfactory to arrive at the conclusion that the leaf spring at issue had dimensions different from those specified by the manufacturer of the truck. Zedonis has also linked the effects of the different dimensions to the alignment of the suspension and to the forces on the piston. He reported that the alignment of the air spring improved when the new leaf spring was installed. He further explained that "the air spring piston is an integral part of the air spring assembly and the truck suspension. The piston . . . communicates the loading between the . . . frame of the truck, and the leaf spring that is attached to the axle." Id. at 8. The "loading forces that are reacted into the base by the misalignments, lean and tilt" of the air spring assembly add to the load on the piston. Id. After describing how the leaf spring caused misalignment, lean and tilt of the air spring assembly, Zedonis observed that this misalignment places "additional loads on the air spring pistons. This composite piston is made of plastic and does not have an infinite strength. There is no doubt that there is a limit to the tilt that the plastic piston can withstand." Id. at 9. Zedonis further stated that "The use of a composite piston in the suspension system of a medium duty truck appears to me to be a poor choice given the misalignment condition. . . ." Id.
Zedonis did not conduct tests that would quantify his analysis and measure the extra forces or replicate the circumstances that led to failure of the piston. Such tests may not have been possible. In reaching his conclusions, however, he had the real-world experience of the other plastic piston, which was not subject to the same misalignment, and of the replacement aluminum piston, which was subject to the same misalignment but did not fail in 180,000 miles, after a brand new plastic piston had exploded while the truck was still in the repair shop. Defendants also have not yet come forward with tests showing that Zedonis's testimony cannot be reliable.
In Daubert, the Supreme Court reminded lower courts that traditional methods of challenging weak evidence, such as cross-examination and presentation of contradictory evidence, would remain the principal methods. Along those lines, it is worth noting that on the existing record, the defense experts — apart from the theory that Henderson started working on the suspension while it was still pressurized — do not provide a satisfactory explanation for the explosion of a new piston. Also, their testimony in this record does not show the use of methods different from Dr. Walson's or Zedonis's. Tom Wirtz is the director of product engineering for the company that actually molded the plastic cylinder in question. He testified in his affidavit, that he examined the failed piston, that he "found it to be appropriately manufactured consistent with its design," and that he found "no visible evidence of any product failure due to any problem in the manufacture or design" of the piston. Wirtz Aff. ¶ 17. The affidavit provides no further explanation, nor any indication of further testing. Similarly, Nathan Ware opined that the Hendrickson leaf spring was not defective. He disagreed with Zedonis's theory that misalignment caused by the leaf spring added to the loads on the piston. Ware offered no specific explanation for the explosion here other than the possibility that Henderson tried to work on a pressurized suspension system. For the reasons explained above, that theory is at least fairly debatable here. There is considerable evidence to the contrary. If the jury rejects that theory, plaintiffs' experts appear to offer the only available explanation for the explosive failure of a brand new piston while the truck was still in the shop.
The court does not yet have access to all of the reports and testimony of the defense experts. These comments about defense expert theories are based on the current record on the pending motions.
Accordingly, the defense motions to strike plaintiffs' expert testimony are denied except with respect to Dr. Walson's opinion about whether torque instructions on the air spring assembly were confusing and defective. The testimony of Dr. Walson and Zedonis is sufficient to meet plaintiffs' burden of showing the existence of product defects that proximately caused Henderson's injuries. Defendants' motions for summary judgment are denied to the extent they are based on attempts to exclude the expert testimony.
Conclusion
For the reasons stated above, the court makes the following rulings with respect to the various motions: Firestone's motion to strike the expert testimony of Dr. Walson and Zedonis is denied in its entirety with this exception: Dr. Walson may not testify as to the supposed defects in instructions about torque for the U-bolts. Hendrickson's motion to exclude the expert testimony of Zedonis is denied. Firestone's, Hendrickson's and Freightliner's motions for summary judgment are denied with the qualification that plaintiff's common law and breach of implied warranty claims are superseded by their statutory claims. The case will proceed to trial on the statutory product liability claims only. Plaintiffs' motion to strike the portion of Hendrickson's Reply Brief addressing the issue of privity is granted. All defendants' motions to strike plaintiff's surreply briefs concerning Couch's testimony are denied. The court will conduct a scheduling conference on Friday, April 22, 2005 at 4:30 p.m. in Room 330, Birch Bayh U.S. Courthouse, Indianapolis, Indiana, to set a new trial date and address other issues as needed.
So ordered.