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Gopalratnam v. Hewlett-Packard Co.

United States District Court, E.D. Wisconsin

March 21, 2017

S.V. GOPALRATNAM and HEMALATHA GOPALRATNAM
v.
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,
v.
SAMSUNG SDI CO., LTD. and DYNAPACK TECHNOLOGY CORP. Third-Party Defendants.

         ORDER 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

          PAMELA PEPPER United States District Judge

         Three defendants[1] 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.

         The 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.

         A. Factual Background

         On June 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.

         A year 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.

         The 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 ¶14.

         When 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.

         B. Procedural Background

         1. The Complaints

          In the 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 ¶¶34-37.

         2. The Defendants' Motions to Exclude Experts

          During 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 depositions. Id.

         Defendant 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.

         3. The Plaintiffs' Motion for Declaratory Judgment

         Before 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 3-4.

         By 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.

         4. The Motions for Summary Judgment

         Samsung 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.[2] Finally, Hewlett-Packard filed for summary judgment, dkt. no. 165, again arguing the unreliability of the expert witness testimony, dkt. no. 166.

         I. DISCUSSION

         A. Motions to Exclude Expert Witness Testimony

         1. The Need for Expert Witness Testimony

         To 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. Id.

         In 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 conclusions.[3] Id.

         As a 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. at 681.

         The 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.

         The 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.

         2. Applicable Law

         The 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.”

         The 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)).

         Rule 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)

         To be 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 719.)

         The 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 scientific community.”

Daubert, 509 U.S. at 593-94.

         3. Analysis of the Experts

         a. Daniel Doughty, Ph.D.-Battery Expert

          The 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 ...


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