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UNITED STATES DISTRICT COURT FOR THE 

NORTHERN DISTRICT OF ILLINOIS

________________________________________________________________________

LUELLA PEHLKE, Individually and as

Special Administrator of the Estate of

FRANK PEHLKE, Deceased,

Case No.: 12−cv−00596

Plaintiff,

Honorable Virginia M. Kendall

v. 

CBS Corporation, 

Defendant.

________________________________________________________________________

Plaintiff’s Daubert Motion re Portions of McMullen Testimony

________________________________________ _____________________________________

Plaintiff moves this Court to strike certain portions of the testimony of CBS expert 

witness Raymond McMullen under Daubert pursuant to this Court’s scheduling order entered on 

February 10, 2016. (ECF Doc # 38.)

Raymond McMullen is an engineer who retired from CBS in 1992. He was originally 

presented as a designated witness for CBS on electrical equipment including switchgear. 

Plaintiff also listed Mr. McMullen as a witness in early discovery disclosures for his lay witness 

testimony about CBS switchgear design and other matters. On May 20, 2016, CBS made a new 

written “expert” disclosure for Mr. McMullen. CBS stated: “Mr. McMullen has personal 

knowledge of relevant facts but also is an expert based upon his specialized knowledge, training, 

and skill.” (Ex.1 at 4.) The recent disclosure describes opinions and testimony “Mr. McMullen 

is expected to give.” (Ex.1 at 5.) The disclosure was signed only by CBS attorney William 

Foote; it was not signed by Raymond McMullen. 

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Plaintiff challenges expert testimony McMullen is expected to give on Daubert grounds. 

Plaintiff adopts and incorporates the Daubert case law standards set forth in Plaintiff’s May 27, 

2016 Motion to Limit Costs of Daubert Hearing. (ECF Doc # 52 at 2-4.)

According to the disclosure, McMullen will opine that:

 identification of CBS/Westinghouse switchgear equipment “by decedent and/or his 

witnesses was not consistent with equipment that Westinghouse manufactured or sold;

 it “would be unusual for ... someone working around decedent ... to perform work on 

such equipment that might involve or alter asbestos-containing components;” 

 “non-metallic electrical insulating component parts ... were not all asbestos-containing . . 

.were durable and typically did not require field modification or service;” and

 “McMullen has reviewed or will review the testimony of the fact witnesses in this case as 

well as the exhibits and documents admitted into evidence addressing the presence, 

operation, use, maintenance or repair of the Westinghouse electrical equipment at the 

Joliet Arsenal and will address the opportunities they presented for specific work site 

asbestos exposures as alleged by plaintiff.”

These recently disclosed opinions are improper under Daubert because McMullen does not 

rely on a valid methodology or basis.

Additionally, McMullen is not qualified to render opinions about the credibility of fact 

witness testimony.

1

 CBS cannot usurp the function of the finder of fact by relying on the 

opinions of an expert witness about credibility of a lay witness.

 

1 Opinions by expert witnesses about credibility of other witnesses are not favored. In Goodwin 

v. MTD Prods., 232 F.3d 600, 609 (7th Cir. Wis. 2000), the Court held: 

MTD also wanted to introduce Plamper's "expert opinion" that he did not believe 

Goodwin when he stated he was in the operator's zone behind the lawn mower with the 

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Plaintiff’s counsel has already advised CBS of the Daubert challenges to Mr. McMullen. 

Relief Requested

This Court should strike and limit Raymond McMullen’s testimony consistent with this 

motion. 

Dated: July 1, 2016

_/s/ Daniel B. Hausman___________

Attorney for Plaintiff

Robert G. McCoy

Daniel B. Hausman

Cascino Vaughan Law Offices, Ltd.

220 South Ashland Ave.

Chicago, IL 60607

(312) 944-0600

(312) 944-1870 (fax)

dhausman@cvlo.com

 

discharge chute facing down when he was injured. We agree with the trial judge who 

properly concluded that, although defense counsel could argue to the jury that the 

accident occurred in a different way, MTD was not entitled to have an expert give an 

opinion as to the veracity of Goodwin's testimony concerning the circumstances 

surrounding the accident when that opinion was merely based on speculation and not on 

admissible scientific evidence. Any argument by MTD that Plamper was entitled to give 

expert opinion as to whether he believed Goodwin's testimony that he was in the 

operator's zone behind the mower with the discharge chute facing down is without merit 

because an expert cannot testify as to credibility issues. Rather, credibility questions are 

within the province of the trier of fact, in this case a jury. Hasham, 200 F.3d at 1047 

("We will not second-guess a jury on credibility issues."). 

See United States v. Benson, 941 F.2d 598, 604 (7th Cir. 1991) (“Credibility is not a proper 

subject for expert testimony; the jury does not need an expert to tell it whom to believe, and the 

expert’s ‘stamp of approval’ on a particular witness’ testimony may unduly influence the jury.”); 

United States v. Vest, 116 F.3d 1179 (7th Cir. 1997), cert. denied, 522 U.S. 1119 (1998) 

(deeming improper the testimony of an expert who “was in no better position than a lay person to 

say whether the patient testified truthfully”). 

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Certificate of Service

I hereby certify that on July 1, 2016, I caused the forgoing to be electronically filed with 

the United States District Court for the Northern District of Illinois using the CM/ECF system 

which will automatically send all necessary notifications of this filing to CM/ECF participants in 

this case.

Dated: July 1, 2016

_/s/ Daniel B. Hausman___________

Attorney for Plaintiff

Daniel B. Hausman

Cascino Vaughan Law Offices, Ltd.

220 South Ashland Ave.

Chicago, IL 60607

(312) 944-0600

(312) 944-1870 (fax)

dhausman@cvlo.com

Case: 1:12-cv-00596 Document #: 63 Filed: 07/01/16 Page 4 of 4 PageID #:651