Opinion
TH97-009-C-T/F
July 31, 2003, Decided
For Indiana Insurance Company, PLAINTIFF: Paul D Kerpan, Clausen Miller PC, Chicago, IL USA.
For Indiana Insurance Company, PLAINTIFF: John M Choplin II, Norris Choplin & Schroeder, Indianapolis, IN USA.
For Valmont Electric Inc, Chicago Miniature Lamp Inc, Power Lighting Products Inc, DEFENDANTS: Robert F Hunt, Hunt Hassler & Lorenz, Terre Haute, IN USA.
For Aerovox Incorporated, DEFENDANT: Lawrence M Hansen, Kopka Landau & Pinkus, Indianapolis, IN USA.
ENTRY ON PLAINTIFF'S MOTION TO RECONSIDER
This Entry is a matter of public record and is being made available to the public on the court's web site, but it is not intended for commercial publication either electronically or in paper form. Although the ruling or rulings in this Entry will govern the case presently before this court, this court does not consider the discussion in this Entry to be sufficiently novel or instructive to justify commercial publication or the subsequent citation of it in other proceedings.
This matter is before the court on Plaintiff Indiana Insurance Company ("Indiana")'s motion to reconsider the court's Entry on Defendants' Motions to Exclude or Limit Plaintiff's New Experts. See Indiana Ins. Co. v. Valmont Electric Inc., 2001 U.S. Dist. LEXIS 23256, No 97-009-C-T/F, 2001 WL 1823587 (S.D. Ind. Dec. 27, 2001). Defendant Valmont opposes the motion to reconsider on the grounds that the Plaintiff is simply reprising arguments that have already been rejected. The court rules as follows.
I. Background
This section summarizes the facts recited at greater length in the court's December 27, 2001 Entry.
On April 1, 1995, a fire broke out at Pell's Bargain Mart in Brazil, Indiana. The Plaintiff, Indiana, was the insurer of the owners of the buildings destroyed in the fire, and brings this action as subrogee. The Plaintiff believes the fire was caused by the explosion of a fluorescent lighting ballast containing an oil-filled metal case capacitor, due to defects in the ballast and/or capacitor. The Plaintiff named as Defendants the manufacturer of the ballast (Valmont) and the capacitor (Aerovox).
Capacitors are devices which store electrical charge; they consist of two metal electrodes separated by a dielectric, or insulator, and enclosed in plastic or metal.
The Plaintiff originally retained expert witness Ted Wroblewski, a consulting engineer who specialized in ballast design and manufacture. In his Rule 26 disclosure and deposition, Wroblewski explained that, even under normal conditions, the current and voltage flowing through a capacitor stresses the dielectric, causing the deterioration of the dielectric materials, the release of gases, and the increase of pressure and temperature. If the increases are severe enough, the capacitor can short-circuit, resulting in what the industry terms "thermal runaway." Wroblewski opined that the Aerovox capacitor was unreasonably vulnerable to thermal runaway because of pinholes in the dielectric and insufficient dielectric. He also noted that the pressure sensitive interrupter (PSI) failed to open the circuit, and that insufficient testing was performed on the capacitor to identify these defects.
Subsequent to rendering his opinion in this case, Wroblewski died. The court permitted the substitution of a new expert on the understanding that the substitute expert would "have a similar area of expertise and will express only opinions like those previously held by the deceased expert." (March 6, 2000 Notice at 2.) The Plaintiff represented its interest in obtaining a replacement expert as a desire for live testimony before a jury, not an effort to present new theories of liability. In an unexpected twist, the Plaintiff produced as replacements for Wroblewski two experts, Mack Martin, Jr. and Donald Ruthman. The Defendants opposed the substitution, arguing that the replacement experts introduced novel testimony and/or their opinions failed to conform to the standards of Federal Rule of Evidence 702 and Daubert v. Merrill Dow Pharmaceuticals, Inc., 509 U.S. 579, 125 L. Ed. 2d 469, 113 S. Ct. 2786 (1993). In ruling on the Defendants' motion to exclude, this court authorized the substitution of two experts, but at the same time excluded certain theories of Martin and Ruthman as without precedent in Wroblewski. Specifically, it was determined that Ruthman's theories as to foreign conducting particles, foreign chemicals and oils, a non-self-clearing electrode, and the thermal protector were different from any theories espoused by Wroblewski. This court also reviewed the proposed expert testimony for conformity with Rule 702 and Daubert. In that regard, it excluded both Ruthman's theory as to the malfunctioning of the PSI and Martin's opinion that external fires do not cause capacitor explosions.
The court has now had the benefit of both further briefing and an evidentiary hearing on the issues. This additional information and argument has clarified certain matters and has led the court to reconsider, in several respects, its earlier rulings. The reasoning behind these departures will be explained below.
II. Discussion
A. Novelty of Ruthman's Theories
(i) foreign particles
In its motion to reconsider, the Plaintiff does not deny that Ruthman's proposed testimony regarding foreign conducting particles or chemicals or oils introduces a subject nowhere treated by Wroblewski. The court therefore stands by its original decision in this regard, and will not allow any theories as to possible defects in the Aerovox capacitor of this nature.
(ii) self-clearing mechanism
The Plaintiff does object to the exclusion of Ruthman's theories as to the self-clearing mechanism and the thermal protector, and asserts that these are not new concepts. It is true that both Wroblewski (Wroblewski Dep. at 138-139) and Defendant Aerovox's expert Ron Rice (Rice Dep. at 60, 63, 95) alluded to the self-clearing mechanism as a feature of the Aerovox capacitor. In his Rule 26 statement, however, Ruthman seems to go further: "It is a design defect to manufacture a 570 volt capacitor with two separate electrodes where one of the electrode cannot self-clear. This is not a common industry design and Aerovox has not produced the data to substantiate this design." Because Wroblewski failed to say anything about a defect in this aspect of the capacitor design in either his Rule 26 statement or his deposition, the court properly excluded Ruthman from presenting such a theory at trial. It now appears that the Plaintiff disavows any theory positing a defect in the self-clearing mechanism, as counsel for Indiana, at the Daubert hearing, denied that the Plaintiff's experts had formed such an opinion. In light of that clarification (or change of position), the court will permit Ruthman to testify as to the self-clearing feature to the extent it is necessary to elucidate the general functioning of the Aerovox capacitor. At the same time, he will not be allowed to tender any opinion as to the presence of a defect in this mechanism, consistent with the representations made by the Plaintiff's counsel.
(iii) thermal protector
In its earlier ruling the court also held that testimony regarding the thermal protector was novel and therefore inadmissible pursuant to the court's substitution order. The court noted that Wroblewski did not mention the topic in his Rule 26 statement. However, it appears that Wroblewski discussed this subject in his deposition. There, he described the thermal protector as located in the power lead to the ballast. (Wroblewski Dep. at 101.) The purpose of the thermal protector, he explained, is to open the circuit when it senses a temperature of a hundred degrees [celsius], plus or minus five, on the surface of the "primary coil. " ( Id. at 187.) Because "there's quite a distance between the capacitor as [internal heat and pressure are] building up versus the thermal protector in the line … there's a thermal delay between a temperature sensed at one end of the unit to the other[.]" ( Id. at 187-188.) On account of this distance, the thermal protector would not sense abnormally high temperatures at the region of the ballast where the capacitor lies. ( Id. at 204.) The evident point of Wroblewski's testimony was that even a properly functioning thermal protector would not open a circuit in response to the onset of thermal runaway because the protector is located at too great a remove from the heat source (the capacitor).
In Ruthman's Rule 26 disclosure, he opined that, "the thermal protector, by design, is not a protective device for this capacitor." It seemed as if this statement referred to a design defect in the ballast, i.e, the thermal protector should have been placed closer to the capacitor to detect rises in temperature. As there was no precedent for this view anywhere in Wroblewski's Rule 26 statement or deposition, the court precluded Ruthman from offering an opinion thereon. Subsequently, the Plaintiff has clarified that it does not intend to present evidence of a defect relating to the thermal protector. Instead, the purpose of the thermal protector testimony, the Plaintiff now claims, is to rebut any attempt by the Defendants to argue that the capacitor explosion was caused by an external fire. Ruthman will testify that the thermal protector would have detected the rising air temperature and opened the circuit before sufficient heat from the external fire could have penetrated through to the capacitor and triggered an explosion. (Ruthman Dep. at 176.) Because Wroblewski previously addressed the general subject of the thermal protector, and because Ruthman does not propose to testify as to defects in the thermal protector, the court will allow his opinion. However, the court will hold counsel for Indiana to his word and limit Ruthman's testimony in this area to rebuttal of the Defendants' theory that an external fire precipitated the capacitor explosion.
The court notes that the Magistrate Judge's September 29, 2000 Entry on the Defendant's Motion to Exclude affirmed the admissibility of the thermal protector theory as expressed by Wroblewski and Ordean Anderson. (September 29, 2000 Entry at 6.) Although the precise issue has not been briefed by the parties, it is clear that Ruthman, having previously designed capacitors intended for use in lighting ballasts, possesses the requisite expertise to present testimony on the ability of a thermal protector to detect ambient temperature and open the circuit in response to an approaching fire. Of course, Ruthman would still be subject to cross-examination on this theory and its application to this case.
B. Admissibility under Rule 702
(i) Ruthman's asphalt theory
Both Ruthman's theory regarding the pressure-sensitive interrupter (PSI) and Martin's opinion that external fires do not cause capacitor explosions were deemed by the court to lack the reliability demanded of expert testimony under Rule 702 and Daubert. Rules 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 rule was amended in 2000 to codify, with minor variation, the Supreme Court decision Daubert v. Merrill Dow Pharmaceuticals, Inc., 509 U.S. 579, 125 L. Ed. 2d 469, 113 S. Ct. 2786 (1993), which set forth the appropriate analysis for the admissibility of scientific opinions (later expanded to all technical expertise in Kumho Tire Co., Ltd. v. Carmichael, 526 U.S. 137, 143 L. Ed. 2d 238, 119 S. Ct. 1167 (1999)). See Newsome v. McCabe, 319 F.3d 301, 306 (7th Cir. 2003). The central idea behind the amended rule is that the trial judge acts as a "gatekeeper," keeping out evidence which is either irrelevant or unreliable. Daubert, 509 U.S. 579 at 589, 125 L. Ed. 2d 469, 113 S. Ct. 2786; Advisory Committee Note to 2000 Amendments to Fed. R. Evid. 702. The Advisory Committee Note to the amended rule lists the factors identified in Daubert as useful in making reliability assessments-- e.g., whether a theory has been tested, subjected to peer review and publication; whether a rate of error is known; whether the theory is governed by standards and controls; and whether it is generally accepted in the relevant scientific community. Advisory Committee Note to Fed. R. Evid. 702 (enumerating the specific factors explicated in Daubert; noting five additional factors courts have found relevant in determining reliability of expert testimony). The Advisory Committee Note also observes that the factors are "neither exclusive nor dispositive" and do not apply to every type of expert opinion. See Kumho Tire, 526 U.S. at 150; see also Tyrus v. Urban Search Mgmt., 102 F.3d 256 (7th Cir. 1996) ( Daubert factors not readily applicable to testimony of sociologist). The admissibility of expert testimony and the qualification of an expert witness are preliminary questions to be decided by the court, see Fed. R. Evid. 104(a), and the Plaintiff bears the burden of establishing admissibility by a preponderance of the evidence, Daubert 509 U.S. at 592 n.10 (citation omitted).
In its prior ruling, the court permitted Ruthman to testify as to the thermal runaway theory, which determination is not contested here. However, applying the principles of Daubert and Rule 702, it excluded what the Plaintiff refers to as Ruthman's "asphalt theory." In his Rule 26 disclosure statement, Ruthman expressed the opinion that "the ballast was defective because the pressure sensitive interrupter and capacitor cover were blocked by asphalt which prevented the interrupter from functioning." He also stated, "Valmont did not manufacture this ballast with a tar dam or with 1/4" space between the terminals and asphalt." As Ruthman explained at his deposition and at the Daubert hearing, the buildup of gas inside a capacitor will cause an increase pressure which, if sufficient, will expand the capacitor cover. This activates the PSI, whose function it is to open the circuit and cut off electricity to the capacitor before an explosion can occur. In order for the PSI to operate properly, a clearance space of at least 1/4 inch adjacent to the capacitor cover must be retained to allow the cover to expand. It is Ruthman's conclusion that Valmont negligently manufactured the ballast by pouring asphalt around the capacitor vessel without any device to preserve the integrity of the clearance space. As a result, the PSI did not open the circuit in response to rising pressure inside the capacitor.
The court barred presentation of Ruthman's asphalt theory on the grounds that he could not show it is generally accepted or has been subject to peer review, and for the additional reason that the theory assumes what must be demonstrated: that the PSI failed and caused an internal explosion. As clarified by the Daubert hearing, it appears that the essence of Ruthman's contention is the need for some means of preserving the space around the capacitor cover; precisely how that is done-whether by a device called a "tar dam" or some other means of preventing the asphalt from collapsing the space-is of secondary importance. While Ruthman would not be competent to testify as to the precise details with respect to a tar dam, he may explain the purpose such a device would serve. As for the clearance space, Ruthman has adequately shown the industry recognition of such a space requirement for pressure sensitive interrupting capacitors: Underwriters Laboratories (UL) requires such a space (Ruthman Dep. at 32-33); Valmont's building instructions for the ballast mandate a 1/4" to 3/8" space, depending on the size of the capacitor, "between the capacitor terminals and the nearest hard surface" (Ex. F. to Pls.' Resp. to Valmont's Mot. to Exclude); Aerovox's expert Ronald Rice also noted the UL spacing requirement (Rice Dep. at 78); and Aerovox's catalog entry on PSIs indicates the need for spacing (Pls.' Ex. H. to Pls.' Resp. to Valmont's Mot. to Exclude). Thus, Ruthman will be allowed to testify on the need for a clearance space.
Ruthman has said that he is not aware of any industry standard with respect to tar dams, and that "I would only determine in my own mind how I would put in a device to stop the tar." (Ruthman Dep. at 120-121.) Ruthman's speculation as to how precisely a tar dam would work does not pass Rule 702 muster; however, Ruthman is clearly qualified to give an opinion as to the need for a device which would guarantee the necessary space. Thus, while he may not delve into the specifics of tar dam design, manufacture, or function, he may state the industry view that something is needed to preserve space for the capacitor cover to expand.
The Defendants counter that Ruthman is not competent to say whether the Valmont ballast in this case in fact lacked the requisite spacing, as Ruthman is not an expert in ballast design or construction. It is true that Ruthman's expertise lies in the design and manufacture of capacitors, nonetheless, he has designed capacitors for use in lighting ballasts and has tested for the amount of pressure necessary to activate PSIs. Although at the Daubert hearing Ruthman conceded he did not have prior experience with a capacitor cover blocked by asphalt in particular, this gap does not render his opinion inadmissible because he has dealt extensively with PSI failures due to obstruction of capacitor covers by other, comparably rigid materials. Furthermore, his view that asphalt impeded the cover is adequately supported by his post-fire examination of the ballast remains, where he observed asphalt covering the capacitor vessel (Ruthman Dep. at 47); by the Valmont pour instructions, which, according to him, do not accommodate the required space; and by the lack of evidence of a tar dam or equivalent device in both the Valmont building instructions and a UL photograph of the open ballast. As Ruthman's background in electrical engineering and capacitor design equips him with the necessary expertise to interpret these materials, this foundation is adequate to warrant submission of the theory to a jury. Defendants certainly may cross-examine Ruthman on his basis for believing that the Valmont ballast lacked the appropriate spacing, but that question goes to the weight of his testimony rather than its admissibility.
In its prior ruling, the court also expressed concern that Ruthman's asphalt theory assumed precisely what needs to be proved, namely that the failure of the PSI caused the explosion. As the court now understands the issue, it is more accurate to say that the PSI is a type of safeguard whose malfunction would not cause an explosion, strictly speaking, but fail to prevent one by not opening the circuit. Ruthman's view that the PSI did not in fact activate is not assumed but inferred from evidence of discoloration of the capacitor remains, an indication of corona which, according to Ruthman, shows the capacitor was still electrified at the time of the explosion. (Ruthman Dep. at 83-84.) Again, as an expert in capacitors Ruthman is qualified to testify as to these matters. That the PSI did not activate is also reasonably inferred from the capacitor explosion itself, which would suggest that voltage was still being applied to the capacitor. To be sure, as Aerovox expert Ronald Rice noted, it is possible that rapidly rising pressure inside the capacitor could blow out the cover even though the PSI performed its function. (Rice Dep. at 68-70.) Rice stated that he had seen this, although "very rarely." ( Id. at 69.) It is also possible that the corona-caused discoloration identified by Ruthman occurred prior to the time of the explosion and, therefore, is not probative of the continued application of voltage at that point. However, both of these objections pertain to doubts about the ultimate correctness of Ruthman's opinion and are matters for the jury to weigh. They do not affect the admissibility of Ruthman's proposed testimony. "The question of whether the expert is credible or whether his or her theories are correct given the circumstances of a particular case is a factual one that is left for the jury to determine after opposing counsel has been provided the opportunity to cross-examine the expert regarding his conclusions and the facts on which they are based." Smith v. Ford Motor Co., 215 F.3d 713, 719 (7th Cir. 2000) (citing Walker, 208 F.3d at 589-90). Because the Plaintiff has met its burden of demonstrating the soundness of Ruthman's asphalt theory, it may be presented to the trier of fact.
As the Plaintiff explains, it is the purpose of other experts (Ordean Anderson and Mack Martin) to eliminate the possibility of an external fire as the cause of the capacitor explosion, leaving an internal cause ( i.e., the gradual buildup of pressure inside the capacitor vessel) as the sole remaining explanation. From there it is a short step to say that the PSI did not trigger-the premise for Ruthman's opinion, which then purports to explain what caused this malfunction. The testimony of the Plaintiff's two other experts thus provides an additional basis for Ruthman's more precise identification of the defect that, in the Plaintiff's view, failed to prevent the explosion and resulting fire. It is well-established that experts may rely upon the reports or testimony of other experts in rendering their opinions. See, e.g., Fed. R. Evid. 703; Walker v. Soo Line R.R. Co., 208 F.3d 581, 588 (7th Cir. 2000).
(ii) Mack Martin's Testimony
In the Entry on Defendants' Motion to Exclude, the court concluded that Mack Martin's background and experience as an investigator into the causes of electrical fires qualified him as an expert under Rule 702. However, it excluded his proposed testimony that the explosion of the ballast was most probably due to defects in the capacitor and not an external fire because this conclusion was based purely on his past experience as a fire investigator, which was not reliably related to the facts of this case.
The Plaintiff submits that the purpose of Martin's opinion is to rebut the Defendants' theory that an external fire caused the capacitor to explode. Martin stated that he has examined at least 500 ballasts, though potentially many more, over the past twenty or so years. (Martin Dep. at 15-16.) In this case he looked at physical evidence of the capacitor remains, photographs, literature provided by the Plaintiff, and depositions. ( Id. at 89.) His opinion that the Aerovox capacitor exploded due to an internal defect is based on the experience of not having seen a capacitor burned in an external fire marked by physical deformations similar to those present in the Aerovox capacitor. As he put it, "I can tell from looking [at the Aerovox capacitor] can that it was in a fire but the physical deformation of that can is clearly related to pressure inside the can that caused it to explode." ( Id. at 36.) According to Martin, the pieces of the can, the rounded sides and bottom of the can, and the shape of the ballast case all point to an explosion caused by an internal buildup of pressure. Ballast transformers that have been through external fires "don't look like that," but instead "they look just like they do physically in size as they do when they are brand new. They are just oxidized and the material inside [is] baked orange or is totally destroyed in some cases and sometimes they will be slightly ballooned but they don't explode." ( Id. at 40.) In Martin's experience, the examination of other ballasts "where the heat generation was clearly from the fire and we know there [was] no failure in the capacitors" did not reveal the same type of physical damage to the capacitor as occurred in this case. ( Id. at 41.) Martin ruled out the alternate explanation of an explosion caused by an external fire boiling the oil inside the capacitor because, he said, a fire would open holes in the capacitor before the oil could heat up sufficiently to cause an explosion. ( Id. at 38.)
In its earlier decision, the court likened Martin's appeal to his field experience as a fire investigator to the invocation of experience by the expert in Clark v. Takata Corp., 192 F.3d 750, 758 (7th Cir. 1999). In Takata, the expert was asked how he knew that a properly functioning seat belt would have prevented the plaintiff from moving more than two inches off his seat and striking his head against the roof in an accident in which the vehicle rolled over. The expert's response of experience, unsupported by any testing or data regarding the impact the physical forces of the rollover would have on a person of the plaintiff's size-or indeed any indication how his experience aided him in arriving at his conclusion--was clearly question-begging. On reconsideration, the court now believes Martin's citation of his fire investigation experience avoids that deficiency. Specifically, Martin has related his experience to the facts of this case by contrasting the appearance of ballasts and capacitors where the physical damage was caused by an external heat source and where there was no known capacitor failure versus their appearance in this case; he has pointed to physical evidence suggesting the capacitor was subject to rising internal pressure; and he has ruled out an alternative explanation for the explosion. For that reason, his opinion has "a reliable basis in the knowledge and experience of [the relevant] discipline." Daubert, 509 U.S. at 592. While laboratory testing or studies confirming Martin's theory would have been helpful, they are not the sine qua non of testimonial reliability. Given the nature of this case, Martin's prior post-fire examinations of hundreds of lighting ballast capacitors serves as adequate foundation for him to say whether an external fire alone (as opposed to internal defect) could cause the type of damage exhibited by the Aerovox capacitor at issue here. While he does not know precisely what defect in the capacitor would have precipitated the thermal runaway (Martin Dep. at 51-53), that question is within the purview of the Plaintiff's other experts and is not critical to his testimony. In sum, while the Defendants may probe his theory for weaknesses, Martin will be allowed to present it to a jury.
III. Conclusion
In keeping with the above discussion, Ruthman's testimony regarding any foreign particles or oils is disallowed; his testimony with respect to the self-clearing mechanism will be allowed with the proviso that he not assert a defect in that mechanism; his opinion as to the thermal protector will be allowed as rebuttal evidence only; his theory as to the PSI will be allowed; and finally, Mack Martin will be permitted to proffer his opinion before a jury regarding the likelihood of the capacitor having exploded due to an external fire.
ALL OF WHICH IS ORDERED this 31st day of July 2003.
John Daniel Tinder, Judge
United States District Court