UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF INDIANA

FORT WAYNE DIVISION

R&E PIZZA PEOPLE, INC., )

d/b/a Little Caesars Pizza, )

)

Plaintiff, )

)

vs. ) CAUSE NO. 1:14-cv-126-PPS

)

STEPHAN MACHINERY, INC., )

)

Defendant. )

OPINION AND ORDER

This is a subrogation action involving a fire at a Little Caesars Pizza in Angola,

Indiana. Little Caesars claims that a mixer designed, manufactured, and installed by

Stephan Machinery, Inc. malfunctioned and caught fire, causing almost $286,000 in

damage to the pizza store. (That particular Little Caesars is owned by R&E Pizza

People, Inc., but for ease of reference I will just call them R&E for short.) Stephan

Machinery filed a motion for summary judgment and R&E subsequently moved to bar

the expert testimony of Stephan Machinery’s experts Gary Woodall and Mark Howard

and to exclude their expert reports. For the reasons detailed in this Opinion and Order,

both motions are denied.

BACKGROUND

On February 15, 2013, there was a fire at the Little Caesars Pizza store in Angola,

Indiana. [DE 39 at 2.] Two of R&E’s employees, Erica Poikey and Shannon Green, were

responsible for closing the store on the night of February 14, 2013. [DE 40-2 at 2.] 
Poikey and Green left the store at approximately 10:30 pm. [DE 39 at 2.] Within the

store, there was a Stephan Machinery dough mixer. [Id.] The mixer had been

purchased from Blue Line Food Service Distributing. [DE 40-2 at 6.] There was a

preparation table located in close proximity to the mixer. [DE 40-7 at 3.] On the night

of the fire, there was a cardboard box sitting on the bottom shelf of the preparation

table. [Id. at 4-5.] That box contained professionally cleaned towels that were used for

wiping up sauce or grease on tables and general cleaning. [Id. at 5-7.] 

Around 9:30 am on February 15, 2013, the fire was discovered when the store

was opened by Maureen Snook, a manager for R&E. [DE 40-2 at 2; DE 40-3 at 3.] Upon

entering the building, Snook noticed that it was full of smoke and that the indicator

lights on the pizza oven were “on.” [DE 40-3 at 3-4; DE 43 at 4.] Snook turned off the

pizza oven and a bread warmer and then exited the building, and immediately

contacted the Angola fire Department. [DE 40-3 at 4; DE 43 at 6.] 

R&E filed its complaint against Stephan Machinery in state court and Stephan

Machinery removed the action to this Court. [DE 1.] The complaint had seven counts

but R&E tells me it only intends to pursue its claims of strict liability, breach of implied

warranty of merchantability, and negligence. [DE 43 at 15.] R&E’s allegations hinge on

its claim that the fire originated at the mixer, which was designed, manufactured,

assembled, distributed, and sold by Stephan Machinery. [DE 3 at ¶4.] Stephan

Machinery, however, asserts that the origin of the fire could not have been the mixer

because it was unplugged [DE 39 at 2-3], and that the origin of the fire was the

2
cardboard box on the shelf under the preparation table, with the most probable cause

being the spontaneous combustion of the towels contained in the box [Id. at 3-4; 20-21]. 

R&E has moved to strike Stephan Machinery’s experts while Stephan Machinery has

moved for summary judgment relying, in part, on its experts’ analysis.

DISCUSSION

I. R&E’s Motion to Bar Expert Testimony of Defendant’s Experts Gary Woodall and

Mark Howard. 

The admissibility of expert testimony is governed by Federal Rule of Evidence

702 and the Supreme Court’s opinion in Daubert v. Merrell Dow Pharmaceuticals, Inc., 509

U.S. 579 (1993). See Lewis v. Citgo Petroleum Corp., 561 F.3d 698, 705 (7th Cir. 2009). Rule

702 provides, in relevant part, that if “scientific, technical or other specialized

knowledge will help the trier of fact[,] . . . [a] witness who is qualified as an expert by

knowledge, skill, experience, training or education may testify [thereto] in the form of

an opinion . . . .” Fed. R. Evid. 702. The Rule “also requires that: (1) the testimony must

be based upon sufficient facts or data; (2) it must be the product of reliable principles

and methods; and (3) the witness must have applied the principles and methods

reliably to the facts of the case.” Happel v. Walmart Stores, Inc., 602 F.3d 820, 824 (7th Cir.

2010).

Under this framework, I must act as a gatekeeper for expert testimony,

determining prior to admission whether the testimony is both relevant and reliable. 

U.S. v. Pansier, 576 F.3d 726, 737 (7th Cir. 2009). In conducting this inquiry, I must focus

solely on principles and methodology, not on the conclusions they generate. Winters v.

3
Fru-Con Inc., 498 F.3d 734, 742 (7th Cir. 2007). “The goal of Daubert is to assure that

experts employ the same ‘intellectual rigor’ in their courtroom testimony as would be

employed by an expert in the relevant field.” Jenkins v. Bartlett, 487 F.3d 482, 489 (7th

Cir. 2007) (quoting Kumho Tire Co. v. Carmichael, 526 U.S. 137, 152 (1999)).

R&E presents three challenges to the expert report and testimony. First, R&E

argues that Stephan Machinery failed to timely disclose its experts in line with the

Court’s Scheduling Order. [DE 45 at 2-4.] This is patently false. While Stephan

Machinery moved on the expert designation deadline for an Emergency Motion for

Extension of Time [DE 25] to extend the deadline to designate experts, seeking

additional time to depose R&E employees, it also placed in the mail to R&E its expert

designations and report. By placing its designations and report in the mail on the date

of the deadline, Stephan Machinery properly served R&E pursuant to Federal Rule of

Civil Procedure 5(b)(2)(c). 

R&E’s reliance on Judge Collins’ Opinion and Order denying Stephan

Machinery’s Emergency as an indication that Stephan Machinery was not in compliance

with the Federal Rule of Civil Procedure 26 disclosure deadline is misplaced. At no

point in her Opinion and Order did Judge Collins find that service of the designations

and report was untimely or improper. She merely noted that, among other reasons,

additional discovery clearly was not necessary for Stephan Machinery’s experts to

complete their report because they were able to mail a report the day of the deadline

(and of the filing of the Emergency Motion). [DE 31 at 2-3.] R&E seems to have

4
interpreted that Opinion and Order as essentially striking the designations and report

for failure to comply with Rule 26, thus eliminating a need for R&E to depose Stephan

Machinery’s experts or to prepare a rebuttal expert report. R&E did so at its own peril

as Stephan Machinery complied with the Scheduling Order and Rule 26(a)(2) of the

Federal Rules of Civil Procedure and timely served its expert designations and report.

Second, R&E argues that Stephan Machinery failed to comply with Rule 26

because it filed a joint report signed by both experts without delineating which opinions

belong to each expert and, even if both experts adopt the exact same opinion, the

testimony of the experts is cumulative and must be barred pursuant to Federal Rule of

Evidence 403. [DE 45 at 3-9.] R&E failed to point to any case law stating that joint

reports are prohibited by courts in the Seventh Circuit. In fact, there is evidence to the

contrary. Sullivan v. Alcatel Lucent USA Inc., No. 12 C 07528, 2014 WL 3558690 (N.D. Ill.

July 17, 2014); Gilbane Bldg. Co. v. Downers Grove Cmty. High Sch. Dist. No. 99, No. 02 C

2260, 2005 WL 838679 (N.D. Ill. Apr. 5, 2005). I will not strike the joint report simply

due to its form. I do, however, order Stephan Machinery to designate which portions of

the report to which each expert will testify. Furthermore, I will bar any testimony to the

extent it is it is needlessly cumulative pursuant to Rule 403.

Finally, R&E argues that Stephan Machinery’s experts’ opinions are not

sufficiently reliable to withstand Daubert scrutiny. I disagree. R&E objects to two of the

expert opinions. At no point does R&E challenge the qualifications of either expert. 

Rather, R&E challenges the expert testimony regarding the surveillance video of the

5
fire, arguing that no special skills are needed in viewing the video to determine where

the smoke originated or note the darkening of the cardboard box on the bottom shelf of

the preparation table. [DE 45 at 9-11.] But the experts are not opining on what is in the

video. Rather they are using the video as a factual basis for their opinions and

describing how they did so, which is entirely permissible. See, e.g., United States v.

Gardner, 211 F.3d 1049, 1054 (7th Cir. 2000) (cause and origin expert’s reliance on

reports, photographs, and third party observations are of a type reasonably relied upon

by experts in the field of fire cause and origin); United States v. Lundy, 809 F.2d 392, 395-

96 (7th Cir. 1987) (arson experts regularly rely on interviews of witnesses to a fire as a

standard investigating technique for determining cause and origin of fire). 

R&E also challenges the experts’ ultimate opinion that the most probable ignition

source for the fire was spontaneous combustion of the towels contained in the box on

the bottom shelf of the preparation table next to the mixer. [DE 45 at 11-12.] Mark

Howard is a Senior Fire Investigator and Gary Woodall is a Senior Forensic Engineer. 

Both gentlemen have extensive training and experience in investigating and

determining the cause of fires. [DE 45-2 at 123-131.] Based on their experience and

expertise, it is well within the province of these experts to testify regarding probable

ignition sources. 

For these reasons, R&E’s Motion to Bar the Expert Testimony of Stephan

Machinery’s Experts and Exclude Their Opinions is denied. As discussed above, R&E

neglected to file a rebuttal report or depose Stephan Machinery’s experts because it

6
believed that the report was noncompliant with Rule 26. This approach was illconceived, yet in the interest of fairness, I will grant R&E the opportunity to draft and

serve a rebuttal report responding to the opinions asserted in R&E’s expert report.

II. Stephan Machinery’s Motion for Summary Judgment.

We now move to Stephan Machinery’s Motion for Summary Judgment. 

Summary judgment is proper “if the movant shows that there is no genuine dispute as

to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R.

Civ. P. 56(a). A genuine dispute about a material fact exists only “if the evidence is such

that a reasonable jury could return a verdict for the non-moving party.” Anderson v.

Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A nonmoving party like R&E is not entitled

to the benefit of “inferences that are supported by only speculation or conjecture.”

Argyropoulos v. City of Alton, 539 F.3d 724, 732 (7th Cir. 2008) (citations and quotations

omitted).

There remain too many genuine disputes as to material facts for me to grant

summary judgment – most significantly, the origin of the fire. R&E asserts that it was

the mixer and designates evidence from which that fact might reasonably be inferred. 

[DE 43-2 at 5; DE 43-3 at 25; DE 43-9 at 7; DE 43-11 at 14.] Stephan Machinery asserts

that the fire started when oily towels in a box on the lower shelf of the preparation table

located next to the mixer spontaneously combusted and designates evidence from

which that fact might reasonably be inferred. [DE 45-2 at 8.] Several other material

facts remain disputed, including: (1) whether the mixer was plugged in at the time of

7
the fire [compare DE 43-2 at 5; DE 43-10 at 4, 12; with DE 45-2 at 6, 9]; (2) whether the

mixer was in the same condition as when it was purchased [compare DE 43-13 at 7; DE

43-11 at 2; with DE 46-1 at 4-5]; and (3) whether the preparation table contained dirty

towels [compare DE 43-3 at 10-11; DE 43-10 at 6-8, 10; with DE 45-2 at 8]. 

These facts are both material and disputed and therefore must be put to a jury. 

For these reasons, Stephan Machinery’s Motion for Summary Judgment is denied.

CONCLUSION

For the aforementioned reasons, the Court DENIES R&E Pizza People Inc.’s 

Motion to Bar Expert Testimony of Defendant’s Experts Gary Woodall and Mark

Howard and to Exclude Their Opinions [DE 44]. The Court ORDERS Stephan

Machinery, Inc. to designate which portions of the report to which each expert will

testify. Stephan Machinery, Inc. must do so no later than December 3, 2015. The Court

GRANTS R&E Pizza People, Inc. leave to file a rebuttal report responding to the

opinions asserted in Stephan Machinery’s expert report no later than December 10,

2015. Finally, the Court DENIES Stephan Machinery’s Motion for Summary Judgment

[DE 38] and Motion for Oral Argument [DE 41].

SO ORDERED.

ENTERED: November 24, 2015

s/ Philip P. Simon 

PHILIP P. SIMON, CHIEF JUDGE

UNITED STATES DISTRICT COURT

8