Opinion
TH 97-009-C-T/F
December 27, 2001, Decided
For INDIANA INSURANCE COMPANY, plaintiff: PAUL D KERPAN, CLAUSEN MILLER PC, CHICAGO, IL.
For INDIANA INSURANCE COMPANY, plaintiff: JOHN M CHOPLIN II, NORRIS CHOPLIN & SCHROEDER, INDIANAPOLIS, IN.
For VALMONT ELECTRIC INC, CHICAGO MINIATURE LAMP INC*, POWER LIGHTING PRODUCTS INC*, defendants: ROBERT F HUNT, HUNT HASSLER & LORENZ, TERRE HAUTE, IN.
For AEROVOX INCORPORATED, defendant: LAWRENCE M HANSEN, SKILES HANSEN COOKE & DETRUDE, INDIANAPOLIS, IN.
ENTRY ON DEFENDANTS' MOTIONS TO EXCLUDE OR LIMIT PLAINTIFF'S NEW EXPERTS
Though this Entry is a matter of public record and is being made available to the public on the court's web site, it is not intended for commercial publication either electronically or in paper form. The reason for this caveat is to avoid adding to the research burden faced by litigants and courts. Under the law of the case doctrine, the ruling or rulings in this Entry will govern the case presently before this court. See, e.g., Trs. of Pension, Welfare, & Vacation Fringe Benefit Funds of IBEW Local 701 v. Pyramid Elec., 223 F.3d 459, 468 n.4 (7th Cir. 2000); Avitia v. Metro. Club of Chicago, Inc., 49 F.3d 1219, 1227 (7th Cir. 1995). However, a district judge's decision has no precedential authority and, therefore, is not binding on other courts, on other judges in this district, or even on other cases before the same judge. See, e.g., Howard v. Wal-Mart Stores, Inc., 160 F.3d 358, 359 (7th Cir. 1998) ("a district court's decision does not have precedential authority"); Malabarba v. Chicago Tribune Co., 149 F.3d 690, 697 (7th Cir. 1998) ("district court opinions are of little or no authoritative value"); United States v. Articles of Drug Consisting of 203 Paper Bags, 818 F.2d 569, 571 (7th Cir. 1987) ("A single district court decision . . . has little precedential effect. It is not binding on the circuit, or even on other district judges in the same district."). Consequently, though this Entry correctly disposes of the legal issues addressed, this court does not consider the discussion to be sufficiently novel or instructive to justify commercial publication of the Entry or the subsequent citation of it in other proceedings.
Defendants filed motions to exclude or limit Plaintiff's new expert witnesses. Plaintiff, Indiana Insurance Company, opposes the motion. This court rules as follows.
I. Factual Background
This litigation arises out of a fire on April 1, 1995, at Pell's Bargain Mart in Brazil, Indiana. The complex was comprised of three large buildings built with pole barn construction using metal roofing and siding. Plaintiff is the insurer of the three owners and occupants of the complex. Phillip Nine, an electrical engineer retained by Indiana Insurance, determined that the fire was caused by an exploding ballast. Indiana Insurance also retained Theodore Wroblewski to identify the manufacturer of the ballast and determine whether it failed.
Wroblewski was a consulting engineer. He had a degree in electrical engineering and had been working as an engineer since 1940. Wroblewski specialized in ballasts, was involved with numerous patents with regards to ballasts, had published several articles on ballast usage, and in his own words, "was involved with capacitor manufacturers for use in fluorescent ballasts . . . . In all cases a capacitor has been always an integral part of a ballast . . . ." (Wroblewski Dep. at 76-77.)
Capacitors are electrical energy storage devices with two metal electrodes separated by a dielectric, or insulating, material and then enclosed in plastic or metal (Pl.'s Resp. to Def. Valmont Elec. Inc.'s Mot. to Exclude or Limit Pl.'s New Experts, Ex. H, hereinafter "Pl's Resp.") Wroblewski opined that the current and voltage flowing through capacitors causes the dielectric to deteriorate. This deterioration causes the release of gases and a rise in internal pressure, which can cause the capacitor case to rupture, short circuiting the electrical system and causing thermal runaway. Wroblewski further opined that the capacitor in this case was defective because there were pinholes in the dielectric, a potential for corona, and insufficient dielectric. He also believed that the pressure sensitive interrupter failed and that the capacitor was not sufficiently tested. Ultimately Wroblewski concluded that the defects in the capacitor caused a short to occur and the capacitor to explode from internal pressure. Wroblewski delivered his opinion and was deposed by the Defendants. A lengthy dispute over the admissibility of the expert opinions in this case arose. After extensive briefing on the subject, the magistrate judge ruled on the admissibility of this testimony. Subsequently, Wroblewski died.
Corona is "a faint glow adjacent to the surface of an electrical conductor at sufficiently high voltage that results from electrical discharge and indicates an early stage of electric breakdown in the surrounding air or gas." Webster's Third New Int'l Dictionary 509 (1986).
This court then allowed Indiana Insurance to substitute a new expert with the understanding that:
Plaintiffs' (sic) new expert will merely be a substitute for the deceased expert, and will have a similar area of expertise and will express only opinions like those previously held by the deceased expert. In other words, allowing this supplement is NOT an invitation to Plaintiffs (sic) to introduce new and different theories in this case.
(March 6, 2000 Notice at 2.) Plaintiff's interest in substituting a new expert was represented not to be an abandonment of Wroblewski's theories, but merely a preference for live testimony before the jury rather than the use of depositions. Plaintiff submitted two experts, Mack Martin, Jr. and Donald R. Ruthman, in place of Wroblewski.
Martin has over thirty years experience working in the engineering field dealing with capacitor failures. Although not a licensed engineer, he has worked with numerous electrical systems and published articles for numerous electrical engineering organizations. Martin opined that the capacitor failed and exploded violently, "most probably" due to defects in the capacitor (as opposed to an external cause). He further noted that external fires do not cause the type of damage he saw in the capacitor and that he had never seen a capacitor protected by a "tar dam."
There is apparently no technical definition of the term "tar dam." According to Ruthman, "The words 'tar dam' is an object to keep the tar away from the capacitor." (Ruthman Dep. at 32.)
Plaintiff also retained Donald R. Ruthman. Ruthman has a degree in electrical engineering and has been an electrical engineer for over forty years. Early in his career, he worked with capacitors in ballasts. More recently, he has designed and produced "hundreds of thousands" of capacitors. (Ruthman Dep. at 99.) Ruthman opined that the capacitor in this case was defective because of foreign conducting particles, holes in the polypropylene insulation (dielectric), and/or a variation of foreign chemicals within the capacitor. He also believed that the capacitor had inadequate dielectric leading to thermal runaway. Finally, Ruthman opined that the capacitor was defective because of insufficient margin distance between its electrodes causing corona, the pressure sensitive interrupter and capacitor cover did not function because they were blocked by asphalt, one of the electrodes was not self-clearing, the thermal protector was not a protective device, there was not proper testing of the capacitor, there was no tar dam, and there was inadequate case insulation.
The Defendants now object to the new experts and have filed a motion to exclude or limit their testimony claiming that: (1) the new experts are not substitutes for Wroblewski; (2) the opinions of the new experts are not substitutes for Wroblewski's opinion; and (3) the new experts' testimony does not satisfy the requirements of Federal Rule of Evidence 702 and the case law interpreting the Rule.
II. The Court's Order
Defendants contend that the testimony of the new experts is in violation of this court's order of March 7, 2001. First, Defendants object because the Plaintiff has named two witnesses to take the place of the one deceased expert witness. The Defendants rely on language in this court's order that referred to "a" disclosure and "the" expert, implying that only one witness would be offered by the Plaintiff. As a general matter, although the court's order did contain singular articles, orders should not be read so meticulously as to exclude two witnesses because of some general language that is singular. Although the court had in mind that the Plaintiff would substitute one expert witness for its deceased witness, the order does not prevent the use of two witnesses if it is the only way to duplicate Wroblewski's testimony.
Defendants also claim that Martin and Ruthman do not have similar areas of expertise to those of Wroblewski, in violation of this court's order. Defendants point to the fact that Wroblewski has extensive experience in the ballast industry and his capacitor experience is limited to capacitors used in ballasts. Martin, on the other hand, is primarily a fire loss investigator and has done little to no work in patenting ballast-related technologies. Finally, the Defendants point out that Ruthman has a lot of capacitor experience, but little to no experience with ballasts. Although this court agrees that there are differences in the experts' experiences, the court order merely stated that the experts were to have "similar" areas of expertise. It is almost impossible to find someone with the exact same experiences and background as Wroblewski. Both Wroblewski and Ruthman are electrical engineers with experience with ballasts and capacitors. Martin does not have a degree in electrical engineering, but he does have extensive experience in engineering and in managing engineering firms. Although Wroblewski may have had more experience with ballasts and patents, that does not mean that his areas of expertise are not similar to Ruthman's and Martin's. In short, although there are differences in their experiences, the areas of expertise are close enough to qualify as "similar."
Defendants finally claim that the experts do not have the same theories as to the causes of the fire. In his Rule 26 disclosure, Wroblewski opined that the Aerovox Acrofoil capacitor in the Valmont ballast was "defective" and "unreasonably dangerous" because: (1) the manufacturing process failed to recognize pinholes in the dielectric and a potential for corona; (2) the capacitor design failed to incorporate sufficient dielectric; (3) the pressure sensitive interrupter failed; and (4) there was not sufficient testing on the capacitor. Wroblewski further opined that the capacitor would be safer with the addition of more insulation and that the above-mentioned defects permitted a short to occur in the capacitor leading to thermal runaway and the explosion which caused the fire. Martin opined that the capacitor failed and exploded most likely due to defects in the capacitor and that he "has never seen a capacitor protected by a tar dam in a ballast." Ruthman opined that the capacitor was defective due to either foreign conducting particles, holes in the insulation, or a variation of foreign oils or chemicals within the capacitor. He further believed that there was inadequate dielectric in the capacitor causing a short, an increase in pressure, and the thermal runaway and resulting explosion. Ruthman also stated that the margin distance between the electrodes was deficient leading to corona, the pressure sensitive interrupter and capacitor cover were blocked by asphalt which caused them to malfunction, the capacitor was defectively designed because one of the electrodes could not self-clear, the thermal protector was not a protective device, there was no evidence of sufficient testing of the capacitor, there was no tar dam, and there was inadequate case insulation.
Although some of these theories are the same, Martin and Ruthman clearly introduced new theories, which violates the specific directive of this court. Defendants contest almost all of the new experts' theories claiming that they are not the same as Wroblewski's, relying largely on questions asked of Martin and Ruthman at their depositions about the similarity of their findings to Wroblewski's. ( See Martin Dep. at 45-46, Ruthman Dep. at 29, 75.) Martin and Ruthman's answers in their depositions are not dispositive of whether their theories are the same as Wroblewski's. They cannot be required to remember every detail of Wroblewski's deposition testimony. Although some of the theories are worded differently, the majority of them appear to be the same. For example, Ruthman discusses the margin distance between the electrodes as a cause for corona. Wroblewski does not mention the margin distances of the electrodes, but does mention that the capacitor had a potential for corona without specifically mentioning why. Theses two theories are not dissimilar as Defendants argue. Also, Defendants take issue with the mention of tar dams. Although Wroblewski never specifically mentioned tar cams, he did discuss the failure of the pressure sensitive interrupter, which is caused by a failure to include tar dams. However, Ruthman mentions several items that are not in Wroblewski's Rule 26 discussion including that there were foreign conducting particles, a variation of foreign chemicals and oils, the self-clearing electrode, and the thermal protector. Because those theories are different from Wroblewski's, Plaintiff will not be allowed to introduce them at trial.
This court is confused because Plaintiff appears to argue that tar dams were necessary in Ruthman's opinion, but that they were never used in Martin's. Perhaps, Plaintiff is implying that the entire capacitor industry does not have reasonably safe standards.
III. Rule 702 and Daubert
Defendants also challenge Martin and Ruthman under Federal Rule of Evidence 702 and Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 125 L. Ed. 2d 469, 113 S. Ct. 2786 (1993). Specifically, Defendants contend that Martin is not qualified, that Martin's theories are not the product of reliable principles and methods, that Ruthman is unqualified, and that Ruthman has not done the testing required by Daubert.
A. The Daubert Methodology
Rule 702 provides that experts may testify if they have "specialized knowledge" are qualified based on "knowledge, skill, experience, training, or education," and the testimony "will assist the trier or fact to understand evidence or to determine a fact in issue." Fed. R. Evid. 702.
Under Federal Rule of Evidence 702 and the principles of Daubert, a district court judge is to act as a "gatekeeper" for expert testimony, only admitting such testimony after receiving satisfactory evidence of its reliability. 509 U.S. at 589. The trial court has considerable latitude in determining whether Daubert's factors have been satisfied and the expert testimony is admissible. Bourelle v. Crown Equip. Corp., 220 F.3d 532, 538 (7th Cir. 2000). Rule 702 was amended, effective December 1, 2000, and now allows the district court, after assessing the expert's qualifications, to admit expert testimony 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." Fed. R. Evid. 702. That amendment was designed to "affirm[] the trial court's role as gatekeeper and provide [] some general standards that the trial court must use to assess the reliability and helpfulness of proffered expert testimony." Fed. R. Evid. 702 advisory committee's note.
Although the amendment significantly altered the language of the rule, it "merely reflects the traditional Daubert inquiry." First Tenn. Bank Nat'l Ass'n v. Barreto, 268 F.2d 319, 331 (6th Cir. 2001). Under Daubert, the court is to determine (1) whether the expert will testify to valid scientific or other expert knowledge based on sound methodology and (2) whether the testimony will assist the trier of fact with a fact at issue. 509 U.S. at 592. Daubert provided a non-exclusive list of factors that courts could examine to determine whether the testimony was scientifically valid. Among those is (1) whether the expert's technique or theory can be or has been tested, (2) whether the theory has been subject to peer review, (3) the known or potential error rate, (4) the existence and maintenance of standards and controls, and (5) whether the theory is generally accepted in the community. Courts have also looked to (1) whether the opinions were developed solely for litigation or developed naturally from the expert's work, (2) whether the expert has unjustifiably extrapolated from an accepted premise to an unfounded conclusion, (3) whether the expert has accounted for other explanations, (4) whether the expert is exerting proper care commensurate with the standards of his profession or area of expertise, and (5) whether the field itself is known to reach reliable results. See Fed. R. Evid. 702 advisory committee's note. Although Daubert arose out of scientific evidence, the Supreme Court (and now Federal Rule 702) has established that expert testimony that is more technical than scientific is governed by the same criteria as the admission of scientific expert testimony. Kumho Tire Co. v. Carmichael, 526 U.S. 137, 141, 143 L. Ed. 2d 238, 119 S. Ct. 1167 (1999). The admissibility of expert testimony and the qualification of an expert witness are preliminary questions to be determined by the district court, see Fed. R. Evid. 104(a), and Plaintiff has the burden of establishing these matters by a "preponderance of proof." Daubert, 509 U.S. at 592 n.10 (citation omitted).
B. Mack Martin
Martin was hired by Plaintiff to testify to "his experience investigating ballast fires, his previous examination of ballasts for evidence of internal explosion, and that the violent damage seen on the Valmont ballast does not occur by external fire." (Pl.'s Resp. at 10.) In United States v. Benson, 941 F.2d 598, 604 (7th Cir. 1991), the Seventh Circuit stated, "An expert's opinion is helpful only to the extent the expert draws on some special skill, knowledge, or experience to formulate that opinion; the opinion must be an expert opinion (that is, an opinion informed by the witness' expertise) rather than simply an opinion broached by a purported expert." First, Defendants have challenged whether Martin has "specialized knowledge," and is qualified based on "knowledge, skill, experience, training, or education." Specifically, Defendants note that Martin is not a licensed engineer, he has not testified in any other case on a similar issue, he has patented no devices, and he has not worked in the manufacture of capacitors or ballasts. Plaintiff points to the fact that Martin has examined well over 500 ballasts to determine fire origins. Furthermore, Martin has worked in the field of electrical engineering for almost thirty years. Although Martin does not have the extensive educational background that Wroblewski and Ruthman have, he does have extensive experience in the field of electrical engineering and has taught seminars on the causes of electrical fires, the exact subject on which the Plaintiff is questioning him. This is sufficient to qualify Martin as an expert under Rule 702.
Defendants also challenge Martin's theories. They note that Martin has done no testing of the capacitors used in fluorescent light ballast or the ballasts involved in the litigation, including a failure to expose any capacitors to external heat sources. In addition, Martin relies on one study, the Powell study, which he admits he did not look at prior to giving his expert opinion. Plaintiff responds that testing could not be done on capacitors because the conditions of the explosion could not be replicated and that the theory of thermal runaway has been accepted by Defendants' experts.
If a witness is relying primarily on experience, the witness must "explain how that experience leads to the conclusion reached, why that experience is a sufficient basis for the opinion, and how that experience is reliably applied to the facts." Fed. R. Evid. 702 advisory committee's note. Plaintiff has not carried its burden with respect to Martin. Martin looked at the physical evidence, the photos and literature presented to him by Plaintiff, and read the depositions before giving his opinion that the damage to the capacitor was not caused by an external fire and "the explosion of this ballast was most probably due to defects in the capacitor." (Rule 26 Op. of Mack Martin P 4.) What this boils down to is Martin saying "I have seen a lot of fires and if the capacitor explodes it is always caused by an internal, as opposed to external fire." This is insufficient to satisfy the standards set by Rule 702 and Daubert.
In Clark v. Takata Corp., 192 F.3d 750, 758 (7th Cir. 1999), the Seventh Circuit affirmed the trial court's decision to not allow an expert witness to testify because "his opinion . . . is based solely on his belief and assumption without any scientific testing, data, or supporting research material in the record." Id. The court further noted:
Nothing in either Daubert or the Federal Rules of Evidence requires a district court to admit opinion evidence which is connected to existing data only by the ipse dixit of the expert. Either "hands-on testing" or "review of experimental, statistical, or other scientific data generated by others in the field" may suffice as a reasonable methodology upon which to base an opinion.
Id. (internal citations omitted). This case is similar because Martin's opinion is based solely on his experience and a review of photographs. He has performed no testing from which to derive his opinion that all exploding capacitors are caused by internal problems. Further, Martin has presented no other studies which support his conclusion. Given the absence of a stated reasoning or methodology, the court is unable to consider the error rate of the scientific technique, if any, used by Martin in formulating his opinions. Similarly, the court is unable to determine on the basis of the record before it that his theory or methods are consistent with the generally accepted method for gathering and evaluating evidence in the field of electrical engineering as applied to capacitor and ballast fires. Finally, it appears that Martin's work suffers from several of the concerns of other circuits, including a lack of accounting for other explanations.
The one study mentioned in Martin's deposition, the Powell study, appears to be merely deposition testimony of Powell with accompanying photographs. (Martin Dep. at 108-09.) See Daubert v. Merrell Dow Pharmaceuticals, Inc., 43 F.3d 1311, 1317 (9th Cir. 1995) (looking at whether experts are "proposing to testify about matters growing naturally and directly out of research they have conducted independent of the litigation, or whether they have developed their opinions expressly for purposes of testifying"). In any event, that "study" illustrated what capacitors looked like after thermal runaway, but did not show that capacitors that are caught in external fires cannot look the same or similar.
Plaintiff spends much of its argument on this point discussing the validity of thermal runaway as a scientific theory. Although this is an interesting topic, it is not relevant in a discussion of Martin's expertise because he was specifically hired for the limited purpose of determining whether the explosion was caused by an external or internal fire and in fact cannot even opine what defect in the capacitor caused the thermal runaway. (Martin Dep. at 51-53.) Plaintiff also argues the correctness of its expert's facts and conclusions. However, "the soundness of the factual underpinnings of the expert's analysis and the correctness of expert's conclusions based on that analysis are factual matters to be determined by the trier of fact, or where appropriate summary judgment." Smith v. Ford Motor Co., 215 F.3d 713, 718 (7th 2000).
Although Martin mentioned thermal runaway briefly in his deposition, it was not in his Rule 26 opinion. In any event, to the extent that Martin would testify about thermal runaway, this testimony would be repetitive of that given by Ruthman, and thus violate the court's order.
C. Donald Ruthman
With respect to Ruthman, Defendants first challenge his qualifications and note that he has never been involved in the design or manufacture of ballasts, has never published on ballasts, and has not worked for a company that designs capacitors for ballasts. Ruthman has a degree in electrical engineering and has worked with capacitors for almost fifty years. Although the majority of his work does not deal with ballasts, he has designed capacitors that are similar to the one in question. (Pl.'s Resp., Ex. E.) To the extent that Ruthman may have lacked familiarity with some aspects of the capacitor-ballast industry, such unfamiliarity merely affects the weight and credibility of his testimony, not its admissibility. See Davis v. Combustion Eng'g, Inc., 742 F.2d 916, 919 (6th Cir. 1984). Because of Ruthman's education and his work with capacitors for almost fifty years, he has the knowledge, skill, experience, training, and education to testify as an expert on how capacitors misfunction.
Defendants also challenge Ruthman's opinions because his theories have not been tested, have not been subjected to peer review and publication, there is no known error rate, and there are none of the established criteria of general acceptance. This appears to be a challenge to the first part of the Daubert test, whether the expert will testify to valid scientific and other expert knowledge based on sound methodology.
Ruthman's main theory appears to be that inadequate dielectric allowed the heat and pressure in the capacitor to build, the pressure sensitive interrupter failed, and the capacitor exploded causing the fire. He terms this occurrence as thermal runaway. Defendants do not appear to seriously challenge the existence of thermal runaway and, although Ruthman performed no tests of his theory that an internal thermal runaway caused the Aerovox capacitor to explode and he did not attempt to replicate the explosion or any parts of the process leading to the explosion, both Ruthman and Wroblewski and Defendant's own expert, Ronald B. Rice, testified that thermal runaway can occur in capacitors of this type. In addition, the magistrate judge in this case already ruled that testimony about thermal runaway would be admissible. Finally, Rice appears to have done significant testing of the capacitors and has determined the rate that thermal runaway occurs in capacitors. (Pl.'s Resp. Ex. A.) The theory of thermal runaway is generally accepted in the scientific community. In addition, Ruthman's testimony about thermal runaway appears to be squarely within his field of expertise and helpful to the trier of fact. Because Ruthman's theory about thermal runaway is generally accepted and will assist the trier of fact with a fact at issue, he will be allowed to present testimony on it to the jury.
However, Ruthman's theories about the pressure sensitive interrupter should not be presented to the jury. The pressure sensitive interrupter is supposed to be activated by rising pressure in the capacitor, causing the cover of the capacitor to move or bulge and thereby breaking the electrical connection. If this occurs, thermal runaway is prevented because the current stops and the pressure in the capacitor falls so there is no explosion (allegedly the cause of the explosion and fire in the rest of ballast and the fire in the buildings). Ruthman opined that the asphalt in the capacitor in question was hard and there was no space between the asphalt and the cover. In this way, the cover was prevented from bulging or moving and the pressure sensitive interrupter was prevented from working. Ruthman opined that the capacitors were defective because they did not have a tar dam or 1/4 of inch space between the asphalt and cover.
Defendants claim that Ruthman has never tested his theory about the hard asphalt, he has never seen the pressure sensitive interrupter in question, and there are no studies about the advisability of tar dams in ballasts of this type. Although the pressure sensitive interrupter in question was destroyed by the fire so it was not possible to examine it and Ruthman has tested and designed capacitors for over thirty years (including apparently performing and witnessing experiments on the amount of pressure necessary to activate the pressure sensitive interrupter), there are several problems with his analysis.
First, he cannot show that his asphalt theory is generally accepted, has been subject to peer review, or any of the other Daubert factors. Furthermore, Ruthman starts his analysis with a conclusion that needs to be established, that the pressure sensitive interrupter failed and caused an internal explosion. The Defendants contend that some other part of the ballast was defective and caused the capacitor to explode from external causes. An expert cannot "assume[] as truth the very issue that [Plaintiff] needs to prove in order to recover." Clark, 192 F.3d at 757. Ruthman's only support for his theory that the pressure sensitive interrupter did not work was that "the power was still being applied to that capacitor." (Ruthman Dep. at 47.) This court's understanding of the pressure sensitive interrupter is that it serves to stop current inside the capacitor if the pressure becomes too great. There is nothing in Ruthman's testimony that indicates that the pressure sensitive interrupter would prevent an explosion that was caused by external forces. Because all of Ruthman's theories about the asphalt and tar dam are based on the unsubstantiated assumption that the pressure sensitive interrupter failed and he offers no reliable methodology by which he established his theories, his theories that the asphalt and lack of a tar dam caused the failure of the pressure sensitive interrupter are not admissible. Finally, Ruthman's theories will not assist the trier of fact. Because there is absolutely no evidence that the asphalt prevented the pressure sensitive interrupter from working (let alone that the pressure sensitive interrupter did not work), this evidence would serve only to confuse the jury.
Although Rice mentions the possibility of asphalt blocking the pressure sensitive interrupter in his deposition, he does not have any support for this supposition and admits that he "had never seen that." (Rice Dep. at 88.)
In fact, Rice's deposition testimony indicates that the capacitor may explode even if the pressure sensitive interrupter is working if the pressure rises too quickly. (Pl.'s Resp. Ex. A at 62-67.)
IV. Conclusion
In sum, Martin's testimony is barred in whole because it is not based on reliable methodology and fails the Daubert test. Ruthman will be allowed to present his theory on thermal runaway, but will not be allowed to discuss his theories: that there were foreign conducting particles, that there was a variation of foreign chemicals and oils, on the self-clearing electrode, on the thermal protector, and that the pressure sensitive interrupter failed because of the hardened asphalt or due to the lack of a tar dam or space. For the foregoing reasons, Defendants' Motion to Exclude or Limit the Testimony of Plaintiff's New Experts is GRANTED in part and DENIED in part.
ALL OF WHICH IS ORDERED this 27th day of December 2001.
John Daniel Tinder, Judge
United States District Court