United States District Court, E.D. Wisconsin
S.V. GOPALRATNAM and HEMALATHA GOPALRATNAM
HEWLETT-PACKARD COMPANY Defendant and THE ESTATE OF ARUN GOPALRATNAM and AMERICAN FAMILY MUTUAL INSURANCE COMPANY, Plaintiffs, and Third-Party Plaintiff and ABC INSURANCE COMPANY Defendants,
SAMSUNG SDI CO., LTD. and DYNAPACK TECHNOLOGY CORP. Third-Party Defendants.
GRANTING SAMSUNG SDI'S MOTION TO EXCLUDE THE TESTIMONY OF
DANIEL DOUGHTY, Ph.D., MICHAEL HILL AND JOSEPH BURTON (DKT.
NO. 157); GRANTING DYNAPACK TECHNOLOGY'S MOTION TO
EXCLUDE TESTIMONY OF DANIEL DOUGHTY (DKT. NO. 160); GRANTING
HEWLETT PACKARD'S MOTION TO EXCLUDE TESTIMONY OF DANIEL
DOUGHTY, Ph.D, MICHAEL HILL AND BENJAMIN MILLS (DKT. NO 170);
GRANTING DEFENDANTS' MOTIONS FOR SUMMARY JUDGMENT (DKT.
NOS. 155- SAMSUNG SDI; 163-DYNAPACK TECHNOLOGY; AND
165-HEWLETT-PACKARD CO.); DENYING AS MOOT PLAINTIFFS'
MOTION FOR A DECLARATORY JUDGMENT (DKT. NO. 125); GRANTING
HEWLETT-PACKARD'S MOTION TO FILE DOCUMENTS RESTRICTED TO
CASE PARTICIPANTS (DKT. NO. 175); AND DENYING DEFENDANTS'
RULE 7(h) EXPEDITED NON-DISPOSITIVE JOINT MOTION TO STRIKE
PLAINTIFFS' REPLY AND JOINT MOTION FOR LEAVE TO FILE
SUR-REPLY TO PLAINTIFFS' MOTION FOR DECLARATORY JUDGMENT
(DKT. NO. 182); AND DISMISSING CASE
PEPPER United States District Judge
defendants have asked the court to exclude proposed
plaintiffs' expert witnesses Daniel Doughty, Ph.D. and
Benjamin Mills; one defendant also has asked the court to
exclude as an expert Joseph Burton (Samsung SDI-dkt. no.
157). All three defendants have filed motions for summary
judgment. The plaintiffs have filed a motion for a
declaratory judgment regarding the applicability of the 2011
amendments to Wisconsin's products liability and
comparative fault statutes.
court will grant the defendants' motions to exclude the
testimony of Daniel Doughty, Ph.D. and Michael Hill (and deny
as moot Samsung's motion to exclude the testimony of
Joseph Burton, and Hewlett-Packard's motion to exclude
the testimony of Benjamin Mills), and will grant the
defendants' motions for summary judgment. The court will
deny as moot the plaintiffs' motion for declaratory
judgment (dkt. no. 125) and the defendants' motion to
strike and seek leave to file a sur-reply (dkt. no. 182). The
court will grant Hewlett-Packard's motion to file
documents restricted to the case participants. Dkt. No. 175.
17, 2009, Arun Gopalratnam, the plaintiffs' son,
purchased an HP Mini 110 XP laptop computer. Dkt. No. 167 at
¶1. The laptop contained a battery pack manufactured by
DynaPack. Id. at ¶2. The battery pack contained
lithium ion battery cells manufactured by Samsung SDI.
Id. at ¶3.
later, on June 4, 2010, Arun died in a fire at the
plaintiffs' former home. Id., at ¶4. The
fire began at approximately 3:30 P.M., and neighbors reported
it to to the Menomonee Falls Fire Department when they
observed flames coming out of a ground-level window of one of
the home's bedrooms. Id. at ¶¶18, 54;
Dkt. No. 80-3, at 5. After firefighters had put out the
blaze, they found Arun dead on the floor in the basement
bedroom of the home. Dkt. No. 167 at ¶¶6-7. Fire
investigators found Arun's laptop and cell phone on a
mattress in the basement bedroom. Id. at ¶9.
The laptop and cell phone were retained as evidence.
Id. at ¶10.
plaintiffs alleged in their complaint that “an internal
failure of the lithium ion battery” in Arun's
laptop “caused a fire to start in the
Gopalratnam” home; they alleged that the fire
“originated” in the laptop. Dkt. No. 1 at
¶13. They alleged that Arun was “fatally
injured” as a result of the fire. Id. at
the investigators found the laptop in the aftermath of the
fire, the battery cell that the plaintiffs allege was
defective was missing from the laptop. Id. at
¶10. After they retrieved the laptop and cell phone, the
investigators dumped the debris from the mattress onto the
floor, and shoveled it out of the basement bedroom window
“into two large, unmarked debris piles.”
Id. at ¶11. “During this process, fire
personnel unknowingly shoveled the allegedly defective
battery cell into one of the two piles, ” id.
at ¶12, and other fire personnel later “discovered
the allegedly defective battery cell buried in one of these
large piles, ” id. at ¶13. No one knows
where the allegedly defective battery cell was located before
it got shoveled with the other debris out the window.
Id. at ¶14. The fire investigators could not
determine the cause of the fire, listing its cause as
“undetermined.” Id. at ¶23. The
investigators were unable to rule out the possibility that
the fire had an electrical cause, nor could they rule out
“human involvement.” Id. at ¶24.
complaint, the plaintiffs brought claims of negligence,
strict products liability, and breach of warranty against
Hewlett-Packard and its insurer. Dkt. No. 1. As discussed
above, Hewlett-Packard then filed a third-party complaint
against DynaPack and Samsung SDI Samsung, alleging that if
Hewlett-Packard were to be found liable, those two entities
had contributory liability because they had manufactured the
battery pack and the battery, respectively. Dkt. No. 7. On
October 31, 2014, the plaintiffs filed an amended complaint
adding DynaPack and Samsung SDI as defendants, and seeking
damages based on claims of negligence and strict products
liability. Dkt. No. 66. As in the original complaint, the
plaintiffs alleged that the lithium ion battery in the laptop
caused the fire. Id. at ¶16. Neither the
laptop, the battery pack or the battery cells in the battery
pack ever were subject to a recall. Dkt. No. 167 at
The Defendants' Motions to Exclude Experts
discovery, the plaintiffs identified four expert witnesses
whom they planned to call to support their allegations. They
identified Michael Hill, whom they identified as an
“expert on the issue of the cause and origin of the
subject fire, ” dkt. no. 158 at 3; Daniel Doughty, whom
they identified as an “expert on the issue of battery
safety, ” id.; and Joseph Burton, whom they
identified as an “expert on the issue of conscious pain
and suffering, ” id.. All three experts
provided expert witness reports, and testified at
Samsung SDI asked the court to exclude all three of these
witnesses under Fed.R.Evid. 702 and Daubert v. Merrell
Dowe Pharmaceutical, Inc., 509 U.S. 579 (1993). Dkt.
Nos. 157, 158. DynaPack moved to exclude Doughty as an expert
on battery safety. Dkt. Nos. 160, 161. Hewlett-Packard asked
the court to exclude the testimony of Doughty and Hill, as
well as the testimony of the fourth expert, Benjamin Mills,
an electrical engineer who provided opinions on
“whether the electrical system in the house or any
electrical appliances in the room caused the fire.”
Dkt. Nos. 171 at 29; 172-7.
The Plaintiffs' Motion for Declaratory Judgment
the defendants filed their Daubert motions, the
plaintiffs filed a motion for declaratory judgment on a
discreet issue. Dkt. No. 125. They pointed out that a finding
of liability as to any of the defendants would require a
determination of damages, which would include consideration
of any pain and suffering Arun endured, as well as his
parents' grief and loss of his society. Id. at
2. They indicated that in February 2011, the Wisconsin
legislature had, as part of a tort reform project, added two
new statutes regarding product liability claims-Wis. Stat.
§§895.046 and 895.047. Id. The plaintiffs
told the court that these statutes had changed the law-at the
time of the fire, Wisconsin law did not require a fact finder
to allocate fault among the plaintiff and the defendants in a
strict liability case, and the common law allowed joint and
several liability among the parties. Id. The new
laws had changed that. The plaintiffs asked the court to
issue a “declaratory ruling that the 2011 statutes . .
. do not apply to this lawsuit . . . .” Id. at
separate motion, the plaintiffs asked the court to stay all
briefing until it ruled on the declaratory judgment motion.
Dkt. No. 129. The court held a hearing, at which it noted
that an issue very similar to the one the plaintiffs had
raised was pending before the Wisconsin Supreme Court
(Clark ex rel. Gramling v. Am. Cyanamid Co., 2015 WL
5684280 (Wis. Ct. App. Sept. 29, 2015)). Dkt. No. 133. The
court denied without prejudice the motion for declaratory
judgment, and stayed briefing until the Wisconsin Supreme
Court could issue a ruling. Dkt. No. 135 at 12-13. After the
Wisconsin Supreme Court remanded the issue back to the Court
of Appeals, see dkt. no. 141 at 1, the court set
deadlines for fully briefing the motion for declaratory
judgment, dkt. no. 142 at 3.
The Motions for Summary Judgment
SDI filed its motion for summary judgment on June 24, 2016,
dkt. no. 155, arguing in great part that the plaintiffs could
not prove causation without their experts. They also argued
that the plaintiffs' wrongful death claim was barred by
the statute of limitations. Dkt. No. 156 at 10. DynaPack,
too, filed a motion for summary judgment, dkt. no. 163,
arguing that the only evidence the plaintiffs had as to
problems with the battery pack came from Doughty, whose
testimony was not reliable and did not implicate the battery
pack, dkt. no. 164. DynaPack also brought a statute of
limitations defense. Dkt. No. 164 at 11. Finally,
Hewlett-Packard filed for summary judgment, dkt. no. 165,
again arguing the unreliability of the expert witness
testimony, dkt. no. 166.
Motions to Exclude Expert Witness Testimony
The Need for Expert Witness Testimony
support their theory that the battery pack in Arun's
laptop caused a fire originating on the bed in the basement
bedroom, the plaintiffs retained Daniel Doughty and Michael
Hill. Doughty issued a report opining that the fire was
caused by a defective cell within the battery pack. Dkt. No.
158 at 3. Hill issued a report opining that the cause of the
fire was the laptop battery and that the fire originated on
the bed where the laptop was located at the time of the fire.
their motions to exclude Doughty's and Hill's
opinions, the defendants contend that the court should not
admit these reports-the plaintiffs' only evidence
regarding the cause of the fire-because the plaintiffs'
experts are unqualified to render their opinions, and did not
use reliable methodology in reaching their
preliminary matter, the court must determine if expert
testimony is necessary for the plaintiff to establish a
prima facie case. Wisconsin courts do not require
expert testimony as long as the case involves issues within
the general common knowledge of a lay jury. Peplinski v.
Fobe's Roofing, Inc., 531 N.W.2d 597, 601 (Wis.
1995); City of Cedarburg Light & Water Comm'n v.
Allis-Chalmers Mfg. Co., 149 N.W.2d 661, 662 (Wis.
1967); Steinberg v. Arcilla, 194 Wis.2d at 759, 764,
535 N.W.2d at 445-46 (Ct. App. 1995); Clifford v. Crop
Prod. Servs., 627 F.3d 268, 273 (7th Cir. 2010).
Products liability cases are not treated differently.
Smoot v. Mazda Motors of Am., 469 F.3d 675, 680 (7th
Cir. 2006) (citing Mesman v. Crane Pro Servs., 409
F.3d 846, 849-50 (7th Cir. 2005)). In Smoot, the
Seventh Circuit concluded “the district judge was
correct . . . to reject the plaintiffs' attempt to invoke
the doctrine . . . or, to state the point more practically,
was correct to rule that the plaintiff could not prove a
product defect without expert testimony.” Id.
fire investigators at the scene were unable to determine what
caused the fire. The court finds that the plaintiffs need
expert testimony to prove their claim that a defective cell
in the battery pack in Arun's laptop caused the fire. The
inner workings of a laptop and its components, including the
battery pack and its cells, are highly technical, beyond the
understanding of lay persons, and, therefore, within the
competence of experts. See Peplinski, 531 N.W.2d at
599; City of Cedarburg, 149 N.W.2d at 662. In cases
like this one, the question of “causation, like the
issue of negligence, involves technical, scientific or
medical matters which are beyond the common knowledge or
experience of jurors and without the aid of expert testimony
the jury could only speculate as to what inferences to draw
if it were left to determine the issue.” City of
Cedarburg, 149 N.W.2d at 662. The lack of expert
testimony in such a case “results in an insufficiency
of proof.” Id.
plaintiffs cannot prevail on any of their theories of
recovery, whether they sound in strict products liability or
negligence, because without competent expert testimony, the
jury would be forced to speculate about the cause of the
fire. Because expert testimony is necessary for the
plaintiffs to prevail, the court must enter summary judgment
in favor of the defendants if the plaintiffs do not present
admissible expert evidence to establish their prima
facie case, including the cause of the fire.
admissibility of expert testimony is governed by Federal Rule
of Evidence 702 and Daubert v. Merrell Dow Pharms.,
509 U.S. 579 (1993). Rule 702 says that a witness
“may” testify as an expert if the witness is
“an expert by knowledge, skill, experience, training,
or education;” the expert's knowledge “will
help the trier of fact to understand the evidence or to
determine a fact in issue;” the expert's testimony
is “based on sufficient facts or data” and is
“the product of reliable principles and methods;”
and the expert “has reliably applied the principles and
methods to the facts of the case.”
Supreme Court has held that the Federal Rules of Evidence
“assign to the trial judge the task of ensuring that an
expert's testimony both rests on a reliable foundation
and is relevant to the task at hand.” Daubert,
509 U.S. at 597. The Daubert Court held that under
Rule 702, a court must engage in a three-step inquiry before
allowing a witness to testify as an expert. The court must
“determine . . . whether the expert is proposing to
testify to (1) scientific knowledge that (2) will assist the
trier of fact to understand or determine a fact in
issue.” Daubert, 509 U.S. at *592. Next, the
court must determine whether “the reasoning or
methodology underlying the testimony is scientifically
valid.” Id. at 592-93. Third, the court must
determine “whether that reasoning or methodology
properly can be applied to the facts in issue.”
Id. at 593. “Daubert interpreted an
earlier version of Rule 702, but it remains the gold standard
for evaluating the reliability of expert testimony and is
essentially codified in the current version of Rule
702.” Manpower, Inc. v. Ins. Co. of Pa., 732
F.3d 796, 806 (7th Cir. 2013) (citing Lees v. Carthage
College, 714 F.3d 516, 521 (7th Cir. 2013)).
702 indicates that an expert witness may be qualified as an
expert “by knowledge, skill, experience, training or
education.” An expert need not have particular academic
credentials to be qualified; “anyone with relevant
expertise enabling him to offer responsible opinion testimony
helpful to judge or jury may qualify as an expert
witness.” Tuf Racing Prods, Inc. v. American Suzuki
Motor Corp., 223 F.3d 585, 591 (7th Cir. 2000)
relevant for purposes of Rule 702, the testimony must assist
the trier of fact to understand the evidence or to determine
a fact in issue. Relevant evidence is evidence “that
has any tendency to make the existence of any fact that is of
consequence to the determination of the action more probable
or less probable than it would be without the
evidence.” Daubert, 509 U.S. at 587 (quoting
Fed.R.Evid. 401). “Where an expert's hypothetical
explanation of the possible or probable causes of an event
would aid the jury in its deliberations, that testimony
satisfies Daubert 's relevancy
requirement.” Smith v. Ford Motor Co., 215
F.3d 713, 718-19 (7th 2000). If an expert uses hypothetical
explanations for causes of an event, those hypotheticals must
have “analytically sound bases, ” rendering them
“more than mere ‘speculation' by the
expert.” Id. at 719 (quoting DePaepe v.
General Motors Corp., 141 F.3d 715, 720 (7th Cir.
1998)). (The question of whether the expert's theory is
correct given the circumstances of a particular case is a
factual one left for the jury to determine. Id. . at
factors the trial court should consider when determining if
an expert's opinion is reliable are:
(1) “whether [the expert's theory or technique] can
be (and has been) tested”;
(2) “whether the theory or technique has been subjected
to peer review and publication”;
(3) “the known or potential rate of error”; and
(4) “general acceptance” in the “relevant
Daubert, 509 U.S. at 593-94.
Analysis of the Experts
Daniel Doughty, Ph.D.-Battery Expert
defendants argue that the court must exclude Doughty's
opinions because he is not qualified to offer opinions under
Rule 702, and because his opinions are unreliable. Dkt. No.
158 at 15. The court finds that Doughty has sufficient
qualifications and experience to testify as to potential
design and/or manufacturing defects in the battery pack, but
concludes that his ...