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CASE NO. 1:12-CV-00596

IN THE UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION

LUELLA C. PEHLKE, individually and as )

Special Administrator of the Estate of )

FRANK PEHLKE, JR., Deceased, )

)

Plaintiff, ) CASE NO. 1:12-CV-00596

)

V. )

)

A. O. SMITH CORPORATION, et al., )

)

Defendants. )

DEFENDANT CBS CORPORATION’S RESPONSE IN OPPOSITION TO 

PLAINTIFF’S DAUBERT MOTION RE PORTIONS OF McMULLEN TESTIMONY

NOW COMES Defendant CBS Corporation, a Delaware corporation, f/k/a Viacom Inc., 

successor by merger to CBS Corporation, a Pennsylvania corporation, f/k/a Westinghouse 

Electric Corporation (hereinafter “Westinghouse”), by and through its attorneys, Foley & 

Mansfield, P.L.L.P., and submits its response in opposition to Plaintiff, Luella Pehlke’s 

(“Plaintiff”) Daubert Motion re Portions of McMullen Testimony and states as follows:

INTRODUCTION

1. Westinghouse has designated Mr. Raymond McMullen as an expert witness in 

this matter. Mr. McMullen, an electrical engineer, was employed by Westinghouse from 1952 to 

1993, when he retired. During the course of his career he worked as a service engineer, district 

engineer, plant manager, and engineering services manager responsible for servicing a wide 

variety of Westinghouse electrical equipment, including switchgear. 

2. Since his retirement from Westinghouse, Mr. McMullen has worked as an

electrical engineering consultant for a number of private customers.

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3. Mr. McMullen has testified as a Westinghouse corporate representative witness or 

“person most knowledgeable” regarding a wide variety of Westinghouse electrical products, 

including switchgear, in twenty cases. 

4. Mr. McMullen’s education, knowledge, work experience, and training make him 

qualified to offer opinions regarding Westinghouse switchgear in this matter and provide a basis 

for the validity of his opinions. Mr. McMullen will offer opinions regarding the design, 

manufacture, components, operation, applications, and maintenance of Westinghouse electrical 

equipment, as well as the location, nature, use, and/or purpose of any asbestos-containing 

components of such equipment. See Westinghouse’s Amended Rule 26 Disclosure at 3-4. 

Additionally, Mr. McMullen will offer opinion testimony that the identification and description 

of Westinghouse electrical equipment, including switchgear, and the described condition, 

application, or service of such equipment provided by Plaintiff’s witnesses was not consistent

with equipment that Westinghouse manufactured or sold; that it would be unusual for Decedent, 

or someone working around Decedent, to drill, abrade or otherwise perform work on this 

equipment that might involve or alter asbestos-containing components, if any; and that nonmetallic electrical insulating component parts of such equipment were a) not all asbestoscontaining, b) were selected for the operating conditions of the equipment, c) were durable, and 

d) typically did not require field modification or services. Id. at 4. Finally, Mr. McMullen will 

address Plaintiff’s proffered evidence regarding Decedent’s allege specific worksite asbestos 

exposure. Id.

5. Plaintiff has failed to offer any support for her unsubstantiated claim that the 

Court should bar portions of Mr. McMullen’s testimony under Daubert v. Merrell Dow 

Pharmaceuticals, Inc., 509 U.S. 579 (1993). Mr. McMullen’s background, education, and work 

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history demonstrate that he is highly qualified to offer opinions regarding Westinghouse 

switchgear in this matter. Additionally, his experience and knowledge provide a foundation for 

his opinions and attest to the validity of those opinions. Finally, contrary to Plaintiff’s 

accusation, Mr. McMullen will not offer any opinion testimony that comments on the credibility 

of any witness in this matter; his opinions will only provide information that contradicts the 

testimony of other witnesses, which will allow the trier of fact to weigh the credibility of all 

witnesses and come to a fair conclusion. As such, Westinghouse respectfully requests that this 

Court deny Plaintiff’s Daubert motion. 

FACTUAL BACKGROUND 

Raymond McMullen started with Westinghouse as a co-op student after graduating from 

high school in 1949. McMullen Dep. at 11-12 (Jan. 5, 2012), attached as Exhibit 1. He attended a 

two-year degree program, and became a full-time Westinghouse employee in 1952, starting as a 

“junior service engineer” and progressing to service engineer. Id. He received a B.S. degree in 

electrical engineering in 1966, then became a district engineer. Id. In 1972, Mr. McMullen 

became the manager of the Westinghouse apparatus service plant in Cincinnati, Ohio, and in 

1974 he became the Westinghouse district service manager, a position he held until retirement. 

Id.

As a district service manager, Mr. McMullen “had a crew of 15 engineers and 5 techs that 

were in the field maintaining switchgear for customers.” Id. at 13. These engineers worked at a 

variety of facilities, including manufacturing plants, steel mills and commercial buildings. Id. at 

14. 

Mr. McMullen supervised Westinghouse employees who “worked as a breaker crew 

doing inspection of medium voltage breakers for customers.” McMullen Dep. at 13 (Mar. 14, 

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2012), attached as Exhibit 2. He has “electrical engineering expertise as well as the experience in 

managing a family of engineers, 15 of them that worked in the field.” Id. at 15. He also 

“managed an apparatus service plant where we repaired Westinghouse equipment.” Id. He is 

able to testify about the variety of circuit breakers used in Westinghouse switchgear, including 

oil circuit breakers, air circuit breakers, and gas circuit breakers. Id. at 30. 

Beginning in 2007, Mr. McMullen has testified as a Westinghouse corporate 

representative or “person most knowledgeable” witness regarding a wide variety of 

Westinghouse electrical products, including switchgear, in twenty cases. Two such cases were 

pending at the time in MDL No. 875, USDC ED Pa. Mr. McMullen has been examined as a 

corporate representative in two depositions (one in MDL 875 and one in Cook County, IL) by 

plaintiff’s counsel, Cascino Vaughn. A complete list of Mr. McMullen’s prior depositions as a 

Westinghouse corporate representative witness is attached as Exhibit 3.

In addition to his litigation consulting work, Mr. McMullen consults with various 

industrial companies regarding a variety of issues involving electrical equipment. McMullen 

Dep. at 6-9 (Apr. 22, 2009), attached as Exhibit 4. 

ARGUMENT

I. MR. McMULLEN IS QUALIFIED TO OFFER OPINIONS REGARDING 

WESTINGHOUSE SWITCHGEAR IN THIS MATTER.

Federal Rule of Evidence 702 states that a witness must be “qualified as an expert by 

knowledge, skill, experience, training, or education” in the relevant field. Fed. R. Evid. 702(a); 

Smith v. Ford Motor Co., 215 F.3d 713, 718 (7th Cir. 2000). In determining the admissibility of 

expert opinion testimony, “a court should consider a proposed expert’s full range of practical 

experience as well as academic or technical training when determining whether that expert is 

qualified to render an opinion in a given area.” Smith, 215 F.3d at 718. As the Seventh Circuit

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has opined, “[w]hile ‘extensive academic and practical expertise’ in an area is certainly sufficient 

to qualify a potential witness as an expert, ‘Rule 702 specifically contemplates the admission of 

testimony by experts whose knowledge is based on experience.’” Smith, 215 F.3d at 718 (citing 

Bryant v. City of Chicago, 200 F.3d 1092, 1098 (7th Cir. 2000) and Walker v. Soo Line R. Co., 

208 F.3d 581, 591 (7th Cir. 2000)); see also Kumho Tire Co., Ltd. v. Carmichael, 526 U.S. 137, 

156 (1999) (“[N]o one denies that an expert might draw a conclusion from a set of observations 

based on extensive and specialized experience.”) In fact, “[a]n expert may be qualified to render 

opinions based on experience alone.” Jordan v. City of Chi., No. 08 C 6902, 2012 WL 254243, 

at *3 (N.D. Ill. Jan. 27, 3012). 

Here, there is no evidence, and Plaintiff does not offer any specific arguments, to 

demonstrate that Mr. McMullen is not qualified to render an expert opinion regarding 

Westinghouse switchgear in this matter. Mr. McMullen’s education and work experience

demonstrate that he is sufficiently qualified to provide expert opinion testimony in this matter. 

Mr. McMullen has a Bachelor’s of Science in electrical engineering. Exhibit 1 at 11-12. 

Additionally, his knowledge, skill, experience, and training provides additional qualifications for 

rendering his opinions in this matter. Mr. McMullen worked for Westinghouse for almost 45 

years. Id. at 10:2-10. He began as a co-op student after high school, and after obtaining his 

associates degree, he became a junior service engineer and was later promoted to service 

engineer. Id. at 11:12-25. He later worked in the district engineering department, and after 

obtaining his Bachelor’s in electrical engineering, he became manager of the apparatus service 

plant in Cincinnati from 1972 to 1974. Id. at 11:25-12:16. Subsequently, he became the district 

electric service manager until his retirement. Id. at 12:16-17. In this capacity, he managed 

fifteen engineers who worked in the field repairing Westinghouse equipment. Exhibit 2 at 15:3-

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15. He supervised and personally observed engineers and technicians maintaining switchgear for 

customers at industrial plants and commercial facilities. Exhibit 1 at 13:19-15:7. He received 

training regarding procedures for inspecting and cleaning out switchgear and breakers from 

manuals and through hands-on training with senior service engineers. Id. at 27:11-28:2. Thus, 

Mr. McMullen is appropriately qualified to offer the opinions discussed above regarding 

Westinghouse switchgear in this matter. 

II. MR. McMULLEN’S OPINION ARE RELIABLE UNDER DAUBERT BASED ON 

HIS KNOWLEDGE, SKILL, AND EXPERIENCE. 

Mr. McMullen’s background and experience also provide an adequate basis for the 

reliability of his expert opinions regarding Westinghouse switchgear. Plaintiff simply states in 

her Daubert motion that Mr. McMullen’s “opinions are improper under Daubert because 

McMullen does not rely on a valid methodology or basis” without providing any information or 

any support to substantiate this bare accusation. Plaintiff’s Daubert Motion re Portions of 

McMullen Testimony at 2. The decision regarding whether to admit expert testimony is within 

the sound discretion of the trial court, and the trial court has “wide latitude . . . in determining [] 

how to measure the reliability of expert testimony.” Cage v. City of Chicago, 979 F. Supp. 2d 

787, 798-99 (N.D. Ill. 2013). While Federal Rule of Evidence 702 requires that an expert’s 

testimony be “based on sufficient facts or data” and “the product of reliable principles and 

methods,” this Rule “specifically contemplates the admission of testimony by experts whose 

knowledge is based on experience.” Fed. R. Evid. 702(b)-(c); Cage, 979 F. Supp. 2d at 802 

(quoting Walker v. Soo Line R.R. Co., 208 F.3d 581, 591 (7th Cir. 2000), accord Metavante 

Corp. v. Emigrant Sav. Bank, 619 F.3d 748. 761 (7th Cir. 2010)); see also Jordan, 2012 WL 

254243, at *3 (“An expert may be qualified to render opinions based on experience alone”). The 

Advisory Committee Notes to Rule 702 specifically states

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Some types of expert testimony will not rely on anything like a scientific method . 

. . Nothing in this amendment is intended to suggest that experience alone—or 

experience in conjunction with other knowledge, skill, training or 

education—may not provide a sufficient foundation for expert testimony. To the 

contrary, the text of rule 702 expressly contemplates that an expert may be 

qualified on the basis of experience. In certain fields, experience is the 

predominant, if not sole, basis for a great deal of reliable expert testimony.

Advisory Committee Notes to Fed. R. Evid. 702 (emphasis added). As such, “expert testimony 

is not unreliable simply because it is found on his experience rather than on data.” Cage, 979 F. 

Supp. 2d at 802-03 (quoting Metavante Corp., 619 F.3d at 761); see also Peoples State Bank v. 

Stifel, Nicolaus & Co., Inc., No. 1:10-cv-1640-RLY-TAB, 2013 WL 1024917, at *5 (S.D. Ind. 

Mar. 14, 2013) (finding the methodology and reliable-facts-and-data factors of the Daubert 

inquiry “not very helpful” where the expert relied primarily on his twenty-five years of 

experience in the industry; in such cases, the “relevant reliability concerns . . . focus upon 

personal knowledge or experience”). For example, in Goldberg v. 401 North Wabash Venture, 

LLC, No. 09 C 6455, 2013 WL 212912 (N.D. Ill. Jan. 18, 2013), this district rejected the 

argument that an expert’s “methodology” was not reliable because he applied personal 

experience and knowledge of the industry custom and practice in forming his opinions. The 

court stated that his opinion was “not inherently unsound because it [was] founded on his 

experience rather than on data.” Id. at *5. The expert did not simply assert a “bottom line” 

conclusion but explained the background for his opinions based on experience in the industry. 

Id. As this district has stated, experts are permitted to rely on their professional experience to 

offer opinion testimony regarding generally-accepted industry standards. Cage, 979 F. Supp. 2d 

at 803; see also WH Smith Hotel Servs., Inc. v. Wendy’s Int’l, Inc., 25 F.3d 422, 429 (7th Cir. 

1994); Baldonado v. Wyeth, 04 C 4312, 2012 WL 3234240, at *3-6 (N.D. Ill. Aug. 6, 2012) 

(denying Daubert motion regarding expert who offered opinion on the standard of care in the 

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industry where the expert “[brought] to bear her experience and training on the issue” and 

“repeatedly emphasized during her testimony that her opinions are not subjection, but are instead 

based on training and experience and having done the same process.”); Fed. Ins. Co. v. Arthur 

Andersen, LLP, No. 03 C 1174, 2006 WL 6555232, at *3 (N.D. Ill. Jan. 18, 2006) (“An expert 

may properly testify as to the ‘customs and standards of the industry.’”) (internal citation 

omitted); Harms v. Laboratory Corp. of America, 155 F. Supp. 2d 891, 903-04 (N.D. Ill. 2001) 

(testimony about general industry standards from the expert’s personal knowledge and not from 

observation of testing procedures related to the case “is classic expert testimony.”) 

Here, the fact that Mr. McMullen did not undertake any scientific testing or experiments

to reach his opinions does not make his testimony unreliable under Rule 702 and Daubert. To the 

contrary, Mr. McMullen’s opinions are based on his extensive knowledge and experience from 

his almost forty-five years with Westinghouse, as well as his education and other technical 

training. As mentioned above, during his career-long employment with Westinghouse, Mr. 

McMullen worked as an engineer in various capacities and later worked as a district electric 

service manager. Exhibit 1 at 11:12-12:17. In this capacity, he supervised and managed fifteen 

engineers who worked in the field repairing Westinghouse equipment and personally observed 

engineers and technicians who were maintaining switchgear for customers at industrial plants 

and commercial facilities. Exhibit 2 at 15:3-15; Exhibit 1 at 13:19-15:7. He received training 

regarding procedures for inspecting and cleaning out switchgear and breakers from manuals and 

through hands-on training with senior service engineers. Exhibit 1 at 27:11-28:2. This 

experience and training, coupled with his educational background in engineering, demonstrates 

that his opinions are reliably supported, as his knowledge is based on his extensive experience in 

the industry, as contemplated by Rule 702. 

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III. MR. McMULLEN WILL NOT OFFER ANY OPINION REGARDING THE 

CREDIBILITY OF OTHER WITNESSES.

Further, Plaintiff incorrectly maintains that Mr. McMullen will comment on the 

credibility of Plaintiff’s fact witnesses. Plaintiff misses the point of Mr. McMullen’s testimony. 

Mr. McMullen will not offering any testimony that touches on the credibility of any of Plaintiff’s 

witnesses. Mr. McMullen will not offer any testimony regarding whether he believes Plaintiff’s 

fact witnesses. To the contrary, Mr. McMullen’s testimony and opinions contains information 

regarding Westinghouse switchgear, specifically, the types of switchgear used in applications 

relevant to this case; the maintenance and service of switchgear; the components of switchgear; 

and the durability and potential for deterioration of such components, that contradicts the 

statements of Plaintiff’s fact and expert witnesses. Mr. McMullen is not opining about how the 

jury should weight the facts of the case but what the jury should consider in making its 

assessment of the facts of the case. At trial, a defendant such as Westinghouse is certainly 

allowed to present evidence, expert or otherwise, that contradicts the plaintiff’s evidence. See 

U.S. v. Benson, 941 F.2d 598, 604 (7th Cir. 1991) (cited by Plaintiff) (an expert witness may give 

testimony “that, if accepted will lead the jury to disbelieve a witness.”) For instance, as stated in 

Goodwin v. MTD Products, Inc., 232 F.3d 600, 609 (7th Cir. 2000), which Plaintiff cited in her

Daubert motion, “defense counsel could argue to the jury that the accident occurred in a different 

way.” As the Seventh Circuit has stated,

Suppose, for example, that a defendant in a suit involving an automobile accident 

testifies that he was travelling 15–20 miles per hour when he entered an 

intersection and hit plaintiff's car. An accident reconstruction expert testifies, 

however, that based on his analysis of the angle of deflection, damage to the two 

cars, his estimate of the point of impact, the two cars' final resting positions, and 

other factors, that the defendant had to be travelling at least 40 miles per hour 

when he entered the intersection. That is useful expert testimony because it is 

based on specialized knowledge that is not within the average layman's ken. If the 

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jury accepted that testimony, it would necessarily disbelieve the defendant but 

that is no reason for refusing to admit the testimony.

Benson, 941 F.2d at 604. Thus, Mr. McMullen’s testimony is not improper. 

CONCLUSION

For these reasons, Westinghouse respectfully requests that this Court deny Plaintiff’s 

Daubert Motion re Portions of McMullen’s Testimony and grant such further relief that this 

Court deems just and proper.

Respectfully submitted,

 By: /s/ William C. Foote

William C. Foote #6199467

wfoote@foleymansfield.com

Foley & Mansfield, PLLP

101 S. Hanley Road, Suite 600

St. Louis, MO 63105

Tel: (314) 925-5700

Fax: (314) 925-5701

Lawrence D. Wilson

LDWilson@ewhlaw.com

Evert Weathersby Houff

3455 Peachtree Road NE, Suite 1550

Atlanta, GA 30326

Tel: (678) 651-1200

Fax: (678) 651-1201

Attorneys for Defendant

CBS Corporation, a Delaware corporation, f/k/a 

Viacom, Inc., successor by merger to CBS 

Corporation, a Pennsylvania, f/k/a Westinghouse 

Electric Corporation

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CERTIFICATE OF SERVICE

I hereby certify that a copy of the foregoing document was filed electronically with the 

Clerk of the Court using the CM/ECF system and is available for viewing and downloading from 

the CM/ECF system. The forgoing documents was served upon all counsel of record via the 

CM/ECF system on this 22

nd day of July, 2016. 

/s/ William C. Foote

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