In the

United States Court of Appeals

For the Seventh Circuit

No. 13-2452

EMPIRE BUCKET, INC.,

Plaintiff-Appellee,

v.

CONTRACTORS CARGO COMPANY,

Defendant-Appellant.

Appeal from the United States District Court for the 

Western District of Wisconsin. 

No. 12-CV-233 — William M. Conley, Chief Judge.

ARGUED OCTOBER 31, 2013 — DECIDED JANUARY 15, 2014

Before BAUER, MANION, and ROVNER, Circuit Judges.

MANION, Circuit Judge. Contractors Cargo Company

engaged Empire Bucket, Inc., to fabricate a steel railcar deck.

After the deck fractured, Contractors Cargo refused to pay the

full purchase price and Empire Bucket sued for breach of the

contract. Contractors Cargo countersued for breaches of the

contract, the implied warranty of merchantability, and the

implied warranty of fitness for a particular purpose. Prior to

trial, the district court granted Empire Bucket’s motion in
2 No. 13-2452

limine to exclude any testimony concerning one of the tests

performed on the deck after it failed. The jury returned a

verdict for Empire Bucket. Contractors Cargo appeals. We

affirm.

I. Facts

Contractors Cargo Company, a transportation business

engaged in heavy-haul operations throughout the United

States, commissioned Empire Bucket, Inc., to fabricate a steel

railcar deck to be used with Contractors Cargo’s Schnabel

railcar—a specialized railroad freight car for transporting

heavy and oversized loads. Contractors Cargo hired a third

party to design the deck. The designs specified that the deck be

fabricated from T-1 high-strength steel and that the welding be

performed pursuant to American Welding Society specifications. The deck was designed to attach to the Schnabel car and

to transport up to an 800,000-pound load. Empire Bucket

fabricated the deck, which passed inspection by an outside

agency and all nondestructive tests, and delivered it. Contractors Cargo connected the deck to its Schnabel railcar and

loaded it to approximately 820,000 pounds. The next morning,

an employee observed that the deck had dropped about three

inches overnight. Contractors Cargo attempted to raise the

deck with a hydraulic jacking system, but the deck fractured

during the attempt.

Contractors Cargo hired a metallurgical engineer, Josh

Schwantes, to determine why the deck had fractured.

Schwantes determined that the deck contained an inclusion—which in this case meant a portion of the weld was

composed of material with properties different from the
No. 13-2452 3

properties of the material in the rest of the weld. The inclusion

was approximately 1/10th of an inch in length at the location

where the crack originated. Schwantes also performed various

tests on the deck, including a “Charpy v-notch impact test.”

This test showed that the material around the inclusion had

low fracture toughness, which meant that the weld material

was more brittle than expected. The deck passed all other nondestructive and destructive tests for the purposes of satisfying

American Welding Society specifications.1

Based on this testing, Contractors Cargo concluded that the

deck failed because Empire Bucket did not properly fabricate

it. Thus, Contractors Cargo refused to pay Empire Bucket the

full purchase price. Empire Bucket sued in Wisconsin state

court for breach of contract. Contractors Cargo removed the

action to federal district court and filed various counterclaims,

including claims for breaches of the contract, the implied

warranty of merchantability, and the implied warranty of

fitness for a particular purpose.

Prior to trial, Empire Bucket filed a number of motions in

limine, including a motion to exclude any testimony regarding

the Charpy impact test performed on the deck. American

Welding Society standards provide that if a project is to be

welded to Charpy toughness criteria, that criteria must be

specified in the contract documents. Thus, Empire Bucket

argued, the Charpy impact test was irrelevant because the

parties’ contract did not specify any Charpy toughness criteria.

As the term suggests, destructive tests are carried out to the point that the 1

test subject fails. The Charpy impact test is a destructive test. 
4 No. 13-2452

The district court directed Contractors Cargo to proffer its

proposed testimony regarding the Charpy impact test and its

relevance to Contractors Cargo’s claims. 

Contractors Cargo explained that it did not intend to offer

testimony regarding the Charpy impact test performed on the

deck for the purpose of demonstrating that theparties’ contract

required the deck to pass such testing. (Indeed, Contractors

Cargo stipulated that the contract did not require the deck to

satisfy any Charpy toughness criteria.) Rather, Contractors

Cargo stated that it intended to offer testimony concerning the

Charpy impact testing to establish that the weld material at the

location of the inclusion had low fracture toughness (that is,

that it was unusuallybrittle). And the test indicating brittleness

supported Contractors Cargo’s experts’ conclusion that the

weld containing the inclusion was the cause and origin of the

deck’s failure, which in turn supported the implied warranty

claims.

In ruling on Empire Bucket’s motion in limine, the district

court focused almost entirely upon ContractorsCargo’s breach

of contract claim. The district court remarked that there “may

be a better case for admitting ... testimony about the cause of

the deck failure for the purposes of discussing a breach of

implied warranty theory, as the actual performance of the deck

might then be relevant to whether it was adequate for the

general or specific purposes for which it was built.” Nonetheless, the district court observed that “the liability question at

issue in this case is not whether or why the deck failed, but

whether the deck satisfied the terms of the contract.” The

district court concluded that the testimony regarding the

Charpy impact test was irrelevant and granted Empire
No. 13-2452 5

Bucket’s motion in limine to bar testimony regarding that test

at the liability phase of the trial. 

However, at trial the district court clarified that only

specific references to the Charpy impact test were barred.

General references to the weld material’s “brittleness” or

“toughness” were otherwise admissible. Consequently,

Contractors Cargo’s experts were permitted to testify regarding the low fracture toughness (that is, brittleness) of the

material at the location of the inclusion in the weld. For

instance, Duane Gilbert, an experienced welder who qualified

as an expert in the areas of welding, fitting, and quality

assurance and control, testified that a weld can become brittle

if “the heat input is too high.” He testified further that the deck

failed at the inclusion because it had a “brittle fracture.”

Specifically, Gilbert explained, the crack in the deck originated

at the inclusion because it was the weak point in the brittle

weld material. Similarly, Schwantes, who qualified as an

expert in metallurgical failure analysis andstatic,dynamic, and

fatigue mechanical testing, testified that thedeck suffered from

a “brittle fracture,” which he defined as “a fracture that occurs

below the yield strength of the material.” He explained that 2

his testimony was drawn from initial observations that were

confirmed “[b]ased on the analysis we had performed, based

on metallography and some of the other test results.”

Schwantes concluded that the inclusion was the “primary

factor” in the deck’s failure, and that the deck’s fracture was

similar to “a textbook case for a brittle fracture.” Nonetheless,

Schwantes explained that “brittleness” is the opposite of “ductility” or

2

the “measure of a material’s, let’s say, elastic or capacity to form.”
6 No. 13-2452

the jury returned a verdict for Empire Bucket. Contractors

Cargo appeals.

II. Discussion

On appeal, Contractors Cargo argues that the district court

erred in excluding as irrelevant specific references to the

Charpy impact test performed on the deck. Evidence is

relevant if it has any tendency to make a fact more or less

probable than it would be without the evidence, and the fact is

of consequence in determining the action. Fed. R. Evid. 401.

Where a district court grants a motion in limine and excludes

evidence under Rule 401, we review the district court’s ruling

under an abuse of discretion standard. Thompson v. City of

Chicago, 472 F.3d 444, 453 (7th Cir. 2006).3

Contractors Cargo contends that the district court abused

its discretion in excluding as irrelevant specific references to

the Charpy impact test performed on the deck because the test

was relevant to Contractors Cargo’s claims for breaches of the

implied warranty of merchantability and the implied warranty

of fitness for a particular purpose. Under Wisconsin law,

 Contractors Cargo argues that the district court abused its discretion by

3

merely considering Empire Bucket’s motion in limine because the motion

was filed nine days after the first submission deadline. This argument is

without merit. A motion in limine is merely a “pretrial request that certain

inadmissible evidence not be referred to or offered at trial.” Black’s Law

Dictionary 1109 (9th ed. 2009). The district court retains the power to make

evidentiary rulings throughout the trial. Indeed, a district court may even

adjust its disposition of a motion in limine during the course of a trial.

Farfaras v. Citizens Bank & Trust of Chicago, 433 F.3d 558, 565 (7th Cir. 2006).

Furthermore, Contractors Cargo does not contend that it was unfairly

disadvantaged by the slight tardiness of Empire Bucket’s motion in limine.
No. 13-2452 7

“[u]nless excluded or modified ..., a warranty that the goods

shall be merchantable is implied in a contract for their sale if

the seller is a merchant with respect to goods of that kind.”

Wis. Stat. § 402.314. The goods, inter alia, must be “fit for the

ordinary purposes for which such goods are used.” Id.Wisconsin law also provides that “[w]here the seller at the time of

contracting has reason to know any particular purpose for

which the goods are required and that the buyer is relying on

the seller’s skill orjudgment to select orfurnish suitable goods,

there is unless excluded or modified ... an implied warranty

that the goods shall be fit for such purpose.” Wis. Stat.

§ 402.315.

In opposing Empire Bucket’s motion in limine, Contractors

Cargo explained that it intended to offer testimony concerning

the Charpy impact testing to establish that the weld material

used at the location of the inclusion had low fracture toughness

(that is, that it was unusually brittle). According to Contractors

Cargo’s experts, the finding that the weld material at the

location of the inclusion was brittle supported their conclusion

that the weld containing the inclusion was the cause and origin

of the deck’s failure. In turn, this conclusion supported the

inference that Empire Bucket failed to fabricate the deck such

that it was “fit for the ordinary purposes for which such” decks

are used or fit for the “particular purpose for which” ContractorsCargo orderedthedeck. Consequently, Contractors Cargo

4

On appeal, Contractors Cargo does not explicitly articulate the “ordinary

4

purpose” or known “particular purpose” that the deck allegedly failed to

achieve. But we think the purpose fairly obvious—namely, that the deck

(continued...)
8 No. 13-2452

argues, the results of the Charpy impact test performed on the

deck make it more probable that Empire Bucket breached the

implied warranty of merchantability or the implied warranty

of fitness for a particular purpose. However, we need not—and

do not—decide whether the district court abused its discretion

when it excluded specific references to the Charpy impact test

because any error would be harmless.

An error is harmless if it does not affect the complaining

party’s substantial rights. Fed. R. Civ. P. 61; Whitehead v. Bond,

680 F.3d 919, 930 (7th Cir. 2012). We would not find that

Contractors Cargo’s substantial rights were affected unless

there was a significant chance that the exclusion of specific

references to the Charpy impact test affected the outcome of

the trial. Whitehead, 680 F.3d at 930.

There is no significant chance that the exclusion of specific

references to the Charpy impact test affected the outcome of

the trial. As discussed above, the Charpy impact test performed on the deck was relevant to Contractors Cargo’s

implied warranty claims only to the extent the results showed

that the material in the location of the inclusion had low

toughness (that is, that it was unusually brittle). But at trial,

Contractors Cargo’s experts testified repeatedly that the

material in the location of the inclusion was brittle. Moreover,

Schwantes testified that the experts knew the material near the

inclusion was brittle based on observations from the initial

inspection of the deck and the “analysis we had performed,

 (...continued) 4

would transport up to an 800,000-pound load without failing.
No. 13-2452 9

based on metallography and some of the other test results[.]”5

Contractors Cargo’s experts only were barred from specifically

identifying the Charpy impact test. This is not the exclusion of

scientific evidence but of a scientific label. Cf. Falana v. Kent

State Univ., 669 F.3d 1349, 1356 (Fed. Cir. 2012) (finding

exclusion of exhibits to be harmless error where the relevant

substance of the exhibits was otherwise admitted); Cook v.

Navistar Int’l Transp. Corp., 940 F.2d 207, 213 (7th Cir. 1991)

(finding exclusionofindustry publications to be harmless error

where “the substance of” the publications was otherwise

admitted).

Contractors Cargo points out that its experts were also

barred from testifying about the precise fracture toughness

values of the material at the location of the inclusion generated

by the Charpy impact test. However, while the precise values

of the material’s toughness would be important for establishing that the deck failed to satisfy particular Charpy toughness

criteria (a theory Contractors Cargo expressly disclaims), in

this case the Charpy impact test performed on the deck is only

relevant to Contractors Cargo’s implied warranty claims to the

extent the test shows that the material at the location of the

inclusion was brittle. No dispute about the specific degree of

brittleness was presented to the jury. Indeed, Contractors

Cargo’s proffer does not include any attempt to show that the

Schwantes’ testimony, that the conclusions about the material’s 5

brittleness were based on metallographic analysis and other testing, belies

Contractors Cargo’s argument that its experts were deprived of the “badge

of science” when testifying that the material around the inclusion was

brittle. Moreover, Schwantes and Gilbert’s extensive qualifications were

described to the jury prior to the experts’ respective testimony.
10 No. 13-2452

precise fracture toughness values of the material at the location

meant that the deck would only be able to support a particular

weight limit that fell below the weight limit the deck was

designed to handle.Rather,ContractorsCargo’s experts merely

testified that the brittleness of the material at the location of the

inclusion supported the conclusion that the weld containing

the inclusion was the cause and origin of the deck’s failure.

Consequently, there is no significant chance that the minor

evidentiary limitationimposedby thedistrict court affected the

outcome of the trial.

III. Conclusion

In light of the testimony admitted at trial, the excluded

evidence regarding the Charpy impact test would have added

little to Contractors Cargo’s case for its implied warranty

claims. Because any error would be harmless, we AFFIRM the

judgment of the district court.