Q. Did you contact Mr. Krasovec before you began performing the test described in
Exhibit 8.

A. I’m not sure if it was before or if we were already underway with our testing.
(Barnett Dep., Exhibit B, pp. 37-38).

The creation of the Test Report and videotapes is a direct violation of Rule 26. Bamett’s
Report obviously did not include the October 24, 2003 Test Report, the videotapes, the
conclusions reached in the Test Report or any reference that Barnetl was planning to conduct
such testing. Accordingly, Barnett should be barred from testifying in any mamner as to his

October 24, 2003 Test Report or the videotapes. See Fritter v. Dafina, Inc., 181 F.R.D. 215

(1988) (where the court barred the de(endant’s expert from testifying at trial concerning testing
the expert performed two months after the defendant submitted the expert’s Fed.R.Civ.P. 26
report on the grounds that the testing, photographs and videotape taken by the expert violated
Rule 26 disclosure requirements and were an intolerable inconvenience to the plaintiffs and the

court); ‘Lrost v. Trek Bicycle Corporation, 162 F.3d 1004 (Cs Cir. 1998) (where the court

affirmed the trial court's decision to bar the plaintiff's expert from offering opinions based on
testing he conducted on a bicycle forty-two days alter the completion of expert discovery).

2. Barnett’s Opinions Concerning His
Comparative Analysis Should Be Barred

In his deposition, Barnett states that, following the issuance of his Report, he began
gathering data and formulating opinions as to the comparative safety of window blind cords to
other causes of accidental deaths. At his deposition, Barnett produced a series of documents to
support his opinions. ‘These documents were marked as Group Exhibit 3 to the deposition and

were entitled:



UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION

MARK WACHHOLZ, as Administrator
of the Estate of Alex Wachhoiz,
on his behalf and on behalf of his wife,
JILL WACHHOLZ and his children,
MEGAN WACHHOLZ and
MARLEIGHA LOSSIN, minors,
and as father and next friend of
MEGAN WACHHOLZ,

FILED

Noy 13 2003

Hine overt W. Gattlemant
States District Court

v. NO. 01 C 0698
LEVOLOR HOME FASHIONS, INC.;
NEWELL WINDOW FURNISHINGS, INC.
LEVOLOR HOME FASHIONS, a division of
Newell Window Furnishings, Inc.; and
HABITAT WALLPAPER AND
BLINDS, INC.,

Judge Robert W. Gettleman

Magistrate Judge Geraldine Soat Brown

)
)
)
)
)
)
)
)
Plaintiffs, )
)
)
)
)
)
)
)
)
Defendants. )
PLAINTIFFS’ MOTION FOR SANCTIONS TO BAR
THE TESTIMONY OF RALPH BARNETT
PURSUANT _TO FEDERAL RULE OF CIVIL PROCEDURE 37

Plaintiffs, Mark Wachholz, as Administrator of the Estate of Alex Wachholz, on his
behalf and on behalf of his wife, Jill Wachholz and his children, Megan Wachholz and
Marleigha Lossin, minors, and as father and next friend of Megan Wachholz by and through
their attorneys, James E. Dahl and Paul N. Bonadies, respectfully request this Court to enter an
order barring the testimony of Ralph Barnett pursuant to Fed.R.Civ.P. 37. In support of this
motion, plaintiffs state as follows:

1, This Court ordered that defendants disclose their experts on or before August 15,

2003. Plaintiffs agreed to extend that time until August 29, 2003.

/O

6



. review the contents of Exhibit 4. (Barnett Dep., Exhibit B, p. 151). How is a party, when
confronted with all of these new documents, supposed to adequately depose an expert when the
expert, himself, states that it would take all day to review the documents? The prejudice to that
party is substantial. Barnett’s conduct indicates he has no regard for this Court’s rules.
Batnett’s actions should not be tolerated and the appropriate sanction is to exclude him from
testifying in this matter.

B. The Defendants’ Conduct With Respect To
Barnett Was Neither Justified Nor Harmless,

As stated above, the sanction of exclusion of a witness is automatic and mandatory unless
the sanctioned party can show that its violation of Rule 26(a) was either justified or harmless.

David v. Caterpillar, Inc,, 324 F.3d 851 (7 Cir. 2003); Salgato v, General Motors Corporation.

150 F.3d 735 (7" Cir. 1998). In order to determine whether a violation of Rule 26 was cither
justified or harmless, the court in David v, Caterpillar. Inc., 324 F.3d 851 (7 Cir. 2003) set forth

four factors to guide the court in its determination. Those factors are:

1. The prejudice of surprise to the party against whom the evidence
is offered.

2. The ability of the party to cure the prejudice.

3. The likelihood of obstruction to the trial.

4. The bad faith or willfulness involved in not disclosing the evidence at an
earlier date.

324 F.3d at 857
Barnett’s failure to disclose in his Report all of his opinions, documents and exhibits,
satisfies all of these guidelines. The prejudice to the plaintiffs is that the defendants have been

allowed to conduct expert discovery beyond the discovery completion date, the plaintiffs had no

12



* 26 were either justified or harmless. The plaintiffs were placed in a position of having to depose
Barnett without having notice of all of his opinions and the basis for those opinions.

This is not the first time that the plaintiffs have had to request this Court to sanction the
defendants. In February of 2003, the plaintiffs filed a Motion for Sanctions after discovering that
the defendants had not produced relevant documents and had not identified certain witnesscs. In
light of that Motion, this Court continued the discovery completion date from July 18, 2003 to
September 20, 2003 in order to allow the plaintiffs to re-depose certain individuals based on the
newly produced discovery. The defendants also agreed to pay the plaintifts $8,000 to
compensate the plaintiffs for the time and costs incurred in taking the additional discovery.

Now, alter the September 20, 2003 discovery completion date, the plaintiffs have learned
that an expert disclosed by the defendants on August 28, 2003, did not include all of his opinions
and information in his Report. At no time, prior to the deposition, did the defendants request an
extension of time to supplement their expert witness report. The plaintiffs should not be put in
the position of, once again, having to re-open discovery because the defendants chose not to
follow the rules. This conduct of the defendants is neither justified nor harmless.

In his deposition, Barnett states that: “We never mess around with a court mandate,
especially a federal court mandate.” (Barnett Dep. Exhibit B, p. 158), Clearly, Barnett did not
mean what he said because his expert Report and deposition testimony reveal that he has
“messed around” with the requirements of Fed.R.Civ.P. 26(a). Accordingly, based on the
defendants’ violations of fed.R.Civ.P. 26(a), Barnett should be barred from testifying in this

matter.



UNITED STATES DISTRICT COURT Buy > ~ cud
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION

FILED
Nov 13 2003

MARK WACHHOLZ, as Administrator
of the Estate of Alex Wachholz,
on his behalf and on behalf of his wite,
HLL WACHHOLZ and his children,
MEGAN WACHHOLZ and
MARLEIGHA LOSSIN, minors,
and as father and next friend of
MEGAN WACIIHOLZ,

Judge Robert W. Gettleman
United States District Court

v. NO. 01 C 0698
LEVOLOR HOME FASHIONS, INC.;
NEWELL WINDOW FURNISHINGS, INC.
LEVOLOR HOME FASHIONS, a division of
Newell Window Furnishings, Inc.; and
HABITAT WALLPAPER AND
BLINDS, INC.,

)
)
)
)
)
)
)
)
Plaintif('s, )
)
)
) Judge Robert W. Gettleman
)
) Magistrate Judge Geraldine Soat Brown
)
)
)
Defendants. )
PLAINTIFFS’ MEMORANDUM IN SUPPORT OF THEIR
MOTION FOR SANCTIONS TO BAR THE TESTIMONY OF RALPH BARNETT
PURSUANT TO FEDERAL RULE OF CIVIL PROCEDURE 37
Plaintiffs respectfully submit this Memorandum in Support of their Motion for Sanctions
to Bar the Testimony of Ralph Barnett Pursuant to Federal Rule of Civil Procedure 37.!
INTRODUCTION
This is a setious casc about the death of a four year old boy who strangled on a blind
cord. The defendants retained Ralph Barnett (“Barnett”) as one of their experts (attached as
Exhibit A is a copy of his Report). Barnett has been a professional expert witness for at least

forty years and he specifically claims to know the federal court rules. Yet, Barnett’s deposition

reveals that he and the defendants have intentionally violated those rules by formulating new

‘ The Court should note that the plaintiffs have also filed a Motion in Limine to bar Ralph Bamett’s testimony
pursuant to Fed.R.Evid. 702.

1

rOgG


2. On August 28, 2003, Ralph Barnett issued his Fed.R.Civ.P. 26(a) Report. On
October 31, 2003, Mr. Bamett was deposed by the plaintiffs.

3. At his deposition, it was discovered that defendants violated Fed.R.Civ.P. 26(a).
Barnett testified that following the submission of his Report, he formulated new opinions,
conducted new tests and compiled additional documents which were not part of his Report.

4, Fed. R. Civ, P. 37 provides that:

A party that without substantial justification fails to disclose information
required by Rule 26(a) or 26(e)(1), or to amend a prior response to
discovery as required by Rule 26(e)(2), is not, unless such failure is
hamuless, permitted to use as evidence at a trial, at a hearing, of on a motion
any witness or information not so disclosed... .

5. Counsel for the plaintiffs and counse) for the defendants have discussed the issues
raised in this motion but have yet to reach a resolution.

6. In support of this motion, the plaintiffs have filed a Memorandum in Support of
their Motion for Sanctions to Bar the Testimony of Ralph Bamett which sets forth in greater
detail the basis for plaintiffs’ motion.

WHEREFORE, plaintiffs respectfully request this Court to bar Mr. Ralph Bamett as an

expert witness in this matter pursuant to Fed, R. Civ. P. 37 and to award fees and costs incurred

in connection with the deposition of Ralph Barnett and this motion.

JAMES E. DAHL (0568724) MARK WACHHOLZ, as Administrator
PAUL BONADIES (6206589) of the Estatgof Alex Wachholz, et al.
DAHL & BONADIES We ,

225 West Washington Street, #1640 mak 45 a ee
Chicago, Illinois 60606, 312/641-3245 One of Their Attorneys


“opportunity to prepare for the new opinions and documents disclosed in Barnett’s deposition, and
the plaintiffs are now forced to request this Court to re-open discovery in order to address the
additional disclosures of Barnett which will only delay the trial of this matter. See, In tc Brand
Name Prescription Drugs Antitrust Litigation, 2000 WL 748155 (N.D.1IL 2000) (where one of
the grounds that supported the court’s granting of defendant's motion to strike plaintifl’s
supplemental expert report was that the additional delay resulting from te-opening expert
discovery was prejudicial to the defendant); Salgado v. Gencral Motors Corp., 150 F.3d. 735
(where the court affirmed the trial court Rule 37 sanction of exclusion of plaintiff's expert
witness on the grounds that plaintiff's expert witness report failed to comply with the
requirements of Rule 26).

The defendants have absolutely no explanation or justification as to why all of Barnett’s
opinions, tests and documents were not part of his Report and were not disclosed to the plaintiffs
until the day of his deposition. The defendants’ conduct is in direct violation of Rule 26(a) and
is so egregious that Barnett should be excluded from testifying at trial, and this Court should
award the plaintiffs the costs and fees incurred in deposing Barnett and in bringing this Motion.
JAMES E. DATIL (0568724) MARK WACHHOLZ, as Administrator

PAUL BONADIES (6206589) of the Listate of Alex Wachholz, et al.
DAIIL & BONADIES

a
225 West Washington Street, #1640 AG a L£
Chicago, Iinois 60606 By: 2/4 4-4)" a

312/641-3245 One of Their Attorneys

13



© he compiled additional documents in support of his opinions that were not teferenced

in his Report, that were not produced as part of his file and that, in his opinion,

would take all day for someone to review.
None of this information was part of his Report nor did the defendants ever make any attempt to
supplement his Report prior to the deposition. If Barnett’s deposition had not been rescheduled
from September 17, 2003, none of thesc new opinions and documents would have been part of
his testimony because Barnett did not begin formulating the new opinions and compiling the new
documents until the last week of October. Barnett knew there were rules that prohibited this type

of behavior but he chose not to follow the rules. Barnett testified as follows:

Q. You never stop thinking about this case?

A. That’s correct, I never do.

Q. And you never stop thinking or supplementing or supporting your opinions do
you?

A ‘That’s correct and I°ll be doing that right up to the time of trial even though most

of the new things I will have will not get into the trial. But I will not stop thinking
of it up until the trial, through the trial, and I may be publishing the results alter
the trial. As you know, I normally do.

Mr. Barnett, what do you mean even though they won’t get in?

Because it won’t be timely. You fellows have rules of when things can get in
and when they don’t. Those are not rules that apply to me. (emphasis added)

(Barnett Dep., Exhibit B, pp. 117-118)
Fed.R.Civ.P, 37 requires that the sanction of exclusion is automatic and mandatory unless
the sanctioned party can show that its violation of Rule 26(a) was either justified or harmless.

David y, Caterpillar, Inc., 324 F.3d 851 qm Cir, 2003); Salgato v. General Motors Corp., 150

F.3d 735 a Cir. 1998). The defendants cannot possibly establish that their violations of Rule



; tidy 1 9 2008

UNITED STATES DISTRICT COURT FE
FOR THE NORTHERN DISTRICT OF ILLINOIS ILEp
EASTERN DIVISION

NOV 18 2009

MARK WACHHOILZ, as Administrator )
of the Estate of Alex Wachhollz, et al. ) Jude ower 4
) United slate PW. Gaiceman
Plaintiffs, —) Slates Distr Court
v. ) NO. 01 C 0698
)
LEVOLOR HOME FASHIONS, INC.; ) Judge Robert W. Gettleman
etal. )
) Magistrate Judge Geraldine Soat Brown
Defendants. —)
NOTICE OF FILING

TO: — Joseph J. Krasovec Af
Schiff, Hardin & Waite
Sears Tower, #6600
Chicago, TL 60606

PLEASE TAKE NOTICE that we have this 13" day of November, 2003, filed with the Clerk of
the United States District Court, Illinais, the following:

1, Plaintiffs’ Motion for Sanctions to Bar the Testimony of Ralph Barnett Pursuant to
Federal Rule of Civil Procedure 37

2 Plaintiffs’ Memorandum in Support of Their Motion for Sanctions to Bar the Testimony
of Ralph Bamett Pursuant to Federal Rule of Civil Procedure 37

3. Plaintiffs’ Motion Jn Limine to Bar the Testimony of Ralph Barnett Pursuant to Federal
Rule of Evidence 702

4. Plaintiffs’ Memorandum in Support of Their Motion Jn Limine to Bar the Opinions of
Ralph Barnett Pursuant to Federal Rule of Evidence 702

5, Plaintiffs’ Motion Jn Limine to Bar the Testimony of Christine Wood Pursuant to Federal
Rule of Evidence 702

6. Plaintiffs’ Memorandum in Support of Their Motion Jn Limine to Bar Testimony of
Christine Wood Pursuant to Federal Rule of Evidence 702

7. Exhibits to Plaintiffs’ Memorandums in Support of Their Motion for Sanctions and
Motion Jn Liming to Bar Testimony of Ralph Barnett

PAUL N. BONADIFS (6206589)

DAHL & BONADIES ;
225 West Washington Street, Suite 1640 JL Lena. ,
Chicago, Illinois 60606 Chan X ley

312/641-3245 Attorneys for Plaintiffs

/O6


The Seventh Circuit in Salgado v. General Motors Corporation, 150 F.3d 735 (7" Cir.
1998) has set forth a significant discussion as to what is required under Rule 26. In footnote 6 to
the opinion, the court states that:

Rule 26(a) Expert Reports must be “detailed and complete.” [citations
omitted]. A complete report must include the substance of the testimony
which an expert is expected to give on direct examination together with the
reasons therefore. [citations omitted]. The report must be complete such
that opposing counsel is not forced to depose an expert in order to avoid
ambush at trial, and moreover, the report must be sufficiently complete so
as to shorten or decrease the need for expert depositions and thus to
conserve resources [citations omitted].

Compliance with Rule 26 in particular with the requirement of total
disclosure is emphasized in the Advisory Committee comments. The
“incentive for total disclosure” is the threat that expert testimony not
disclosed in accordance with the rule can be excluded pursuant to Rule
37(c)(1). The availability of this sanction “puts teeth into the rule”
[citations omitted].

150 F.3d at 741-742.
The Seventh Circuit then explained, in detail, what should be included in an expert witness
report. The expert’s report should contain:

1. A complete and detailed statement of all opinions to be
expressed at trial and the basis and reasons in support of those opinions. In
simple language, this means that the report must contain all information
relating to “how” and “why” the expert reached the conclusions and.
opinions contained within the report;

2. The data or other information considered by the witness in
forming the opinions. This means “what” the expert saw, heard,
considered, read, thought about or relied upon jn reaching the conclusions
and opinions contained within the report. This includes factual information
given to the expert by the attorney in forming an opinion;

3. All exhibits to be used as a summary or support for the
opinions. This category encompasses demonstrative evidence which
summarizes or supports the expert’s opinions;

150 F.3d at 742.



ARGUMENT

RALPH BARNETT SHOULD BE BARRED FROM TESTIFYING
PURSUANT TO FEDERAL RULES OF CIVIL PROCEDURE 26 AND 37

Federal Rule of Civil Procedure 26(a)(2) provides the following:

2. Disclosure of Expert Testimony

A. In addition to the disclosures required by paragraph J, a party
shall disclose to other parties the identity of any person who may be used at
trial to present evidence under Rule 702, 703 or 705 of the Federal Rules of
Evidence.

B. Except as otherwise stipulated or directed by the court, this
disclosure shall, with respect to a witness who is retained or specially
employed to provide expert testimony in the case or whose duties as an
employee of the party regularly involved giving expert testimony, be
accompanied by a written report prepared and signed by the witness. The
report shall contain a complete statement of al] opinions to be expressed and
the basis and reasons therefore; the data or other information considered by
the witness in forming the opinions; any exhibits to be used as a summary
of or support for the opinions; the qualifications of the witness including a
list of all publications authored by the witness within the proceeding 10
years; ...

If a party fails to follow the requirements under Fed.R.Civ.P. 26(a)(2), then Fed.R.Civ.P. 37
provides a sanction in the form of barring the witness from testifying in the matter. Fed.R.Civ,P.
37 states that:

(c) Failure to Disclose; False or Misleading Disclosures;
Refusal to Admit.

(1) A party that without substantial justification fails to disclose
information required by Rule 26(a) or 26(e)(1) shall not, unless such failure
is harmless, be permitted to use as evidence at a trial, at a hearing or ona
motion, any witness or information not so disclosed, In addition to or in
Hieu of this sanction, the court, on motion and after affording an opportunity
to be heard, may impose other appropriate sanctions. . . .



‘ opinions two months after the issuance of his Report, by conducting testing a week before his
deposition, and by generating new documents the night before his deposition. Barnett’s conduct
should not be tolerated and he should be barred from testifying in this matter.

According to this Court’s order, the defendants were to disclose experts on or before
August 15, 2003. Plaintiffs agreed to extend the deadline to August 29, 2003. On August 28,
2003, the defendants identified Barnett, an engineer, as one of their experts (attached as Lixhibit
A is a copy of his l’ed.R.Civ.P. 26 Report dated August 28, 2003).” After receiving his Report,
plaintiffs scheduled Barnett’s deposition for September 17, 2003. In light of the materials
referenced in his Report, plaintiffs requested a copy of his file the day before his deposition. At
the plaintiffs’ request, Barnett’s deposition was rescheduled and continued to October 31, 2003.
On October 28, 2003, defendants provided plaintiffs with Barnett’s file (attached as Exhibit B is
a copy of his deposition transcript). On October 31, 2003, Barnett was deposed.

At his deposition, it was discovered that the defendants and Barnett have blatantly
disregarded Rule Federal Rule of Civil Procedure 26(a). Fed.R.Civ.P. 26 requires the “disclosure
of all opinions, the basis and reasons for the opinions, the data or other information considered
by the witness, and any exhibits to be used in support of the opinions.” Barnett testified that after
he issued his Report:

« he conducted tests and created new reports regarding safety devices for blinds;

« he generated new opinions regarding the comparative salety of blinds;

« he generated new documents concerning the accident frequency rate of window
blinds; and

2 All Exhibits to this Memorandum have been separately bound.

2



AFFIDAVIT OF SERVICE BY MESSENGER DELIVERY

The undersigned, being first duly sworn on oath, states that she served the
foregoing motion on the above-named attorneys of record by causing a truc and correct
copy thereof to be delivered by Comct Messenger Service on November {3, 2003.

[x] Under penalties as provided by law pursuant to
735 ILCS 5/1-109, J certify that the statements
set forth herein are true and correct.



“Deaths, 0-4 Ycars Old”

* “Swimming Pool Deaths, 0-4 Years Old”

« “Crib Deaths, 0-4 Years Old”

« “Bed Deaths, 0-4 Years Old”

« “Bucket Deaths, 0-4 Years Old”

« “Plastic Bag Deaths, 0-4 Years Old”

« “Window Cord Deaths, 0-4 Years Old”

* “Scouting Resources — Knots A through G”

® Blow up from dictionary

« “Rigging Manual, compiled by D.E. Dickie, Professional Engineer”

« “Scout Knowledge”

None of these opinions or documents were part of Bamett’s Report. (Attached as Exhibit D is a
copy of the documents marked as Group Exhibit 3 to his deposition). In fact, these documents
were not given to defendants’ counsel until approximately 4:00 p.m. the day before the
deposition. When asked why Bamett’s comparative analysis was not performed prior to August
28, 2003, Barnett testified as follows:

Q. Sir, do you know when you began the process of assembling this information for
this report that’s reflected on page 1 of Exhibit 3?

A. The beginning would have becn a decision that ] made probably weeks before, but
actually going and getting the data started about a week ago.

Q. 1s there any reason that you didn’t decide to take the comparative approach that’s
reflected in the first page of Exhibit 3, the reason you didn’t come to that concept
approach prior to August 28, 2003?

A. No teal reason. | just keep -- I’m always thinking about this case.

(Barnett Dep., Exhibit B, pp. 113-126).


« Dependency Hypothesis Part II

® Risk Analysis

e Safety Hicrarchy
Accident Statistics:

© Copies of the deaths and graphs that were part of Exhibit 3
Accident Frequency Rate:

« A handwritten page entitled “Accident Frequency Rate, 2000”

Knots:

« Handwritings entitled “Knots”

« “Doctrine of Manifest Danger”

» “Design of Machines and Elements”

« Bungee Cord Danger Analysis

« Float Scaffold

« Commercial ‘I'rce Chipper: The Leg Pull In Hypotheses
© Ladder Rung vs. Side Rail Handgrip Strategy

e Ladder Slide Out — First Order Analysis

© Fall Protection: Minimum Weight Lanyard for Bow Hunters
* Anti Hair Entanglement

« Anti Hair Snare Pool Drain Cover

(Attached as Exhibit E is a copy of the documents marked as Group Exhibit 4 to his deposition).
With the exception of four documents entitled “Safeguard Evaluation Protocol,” “The
Dependency Hypotheses (Part I),” “The Dependency Hypotheses (Part 11”, and “Risk Analysis,”
the remaining documents produced at his deposition werc not referred to in Barnett’s Report nor
were they provided to counsel prior to the deposition. ‘There is absolutely no justification for
Barnett’s identification and the production of these documents on the day of the deposition.

These documents were so voluminous that Barnett stated it would take all day for a person to

u



UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION

NOV 13 zouy

MARK WACHHOLZ, as Administrator
of the Estate of Alex Wachholz,

on his behalf and on behalf of his wife,
JILL WACHHIOLZ and his children,
MEGAN WACHHOLZ and
MARLEIGHA LOSSIN, minors,

and as father and next friend of
MEGAN WACHHOLZ,

Jutta

nope;
‘Nitiea ert W. Gettioman

States District Court

)
)
)
)
)
)
)
)
Plaintiffs, )

v. ) NO. 01 C0698
)
LEVOLOR HOME FASHIONS, INC.; )
NEWELI. WINDOW FURNISHINGS, INC.)
LEVOLOR HOME FASHIONS, a division of )
Newell Window Furnishings, Inc.; and )
)
)
)

IIABITAT WALLPAPER AND
BLINDS, INC.,

Judge Robert W. Gettleman

Magistrate Judge Geraldine Soat Brown

Defendants.
NOTICE OF MOTION

TO: Joseph J. Krasovec III,
Schiff, Hardin & Waite
Sears Tower, #6600
Chicago, IL 60606

On November 18, 2003, at 9:00 a.m., or as soon thereafter as counsel may be heard, | shall
appear before Judge Robert W. Gettleman or any judge sitting in him stead in the courtroom usually
occupied by him in Room 1703 of the United States District Court, 219 South Dearborn Street, Chicago,
Illinois and present:

1. Plaintiffs’ Motion for Sanctions to Bar the Testimony of Ralph Bameitt Pursuant to
Federal Rule of Civil Procedure 37

2. Plaintiffs’ Motion Jz Limine to Bar the Testimony of Ralph Barnett Pursuant to Federal
Rule of Evidence 702

3. Plaintiffs’ Motion Jn Limine to Bar the Testimony of Christine Wood Pursuant to Federal
Rule of Evidence 702

PAUL N. BONADIES (6206589)

DAHL & BONADIES aa 5
225 West Washingion Street, Suite 1640 Li. yu hi .
Chicago, Illinois 60606 Live Ls
312/641-3245 Attorneys for Plaintiffs

SOG



AFFIDAVIT OF SERVICE BY MESSENGER DELIVERY ,

The undersigned, being first duly sworn on oath, states that she served the

foregoing documents on the above-named attorneys of record by causing true and sorrect ,
Aa a

copies thereof to be delivered by Comet Messenger Service on November /3. 42003.

qm

SUBSCRIBED AND SWORN
to before me this [3 day of
November 2003

Lae MOL

NOTARY PUBLIC

OFFICIAL SEAL
notaay Lisa M. ODEH

UBLIC, STATE OF ILLINOIS
MY COMMISSION EXPIRES 4-10-2004



As outlined below, it is clear that the defendants have not complied with the requircments of
Rule 26.

A. Barnett’s Report Fails To Contain All
Of His Opinions, The Documents, Or Exhibits

1. Barnett Should Be Barred From Offering Any Testimony
Based On His October 24, 2003 Test Report And Videotapes.

One of the issues in this lawsuit is whether Levolor should have incorporated a safety
device known as a “break away tassel” with its blinds. A “break away tassel” is a safety device
which splits apart when downward pressure is applied thus eliminating the hazardous condition
ofa looped pull cord. In his Report, Barnett gives the opinion that the presence of a break away
tassel would not have prevented Alex’s death because an alleged knot above the tassel would
have defeated the device and the device would not have worked due to the manner in which the
cord was on Alex’s neck. There is absolutely no support in his Report for these opinions.

Then, on October 24, 2003, two months after his Report and a week before his
deposition, Barnett attempted to study the effectiveness of the break away tassel by conducting
certain tests. He then formulated new opinions and documented those tests through photographs
(“Test Report”) and videotape. The Test Report and videotapes were provided to counsel on
October 28, 2003 (attached as Exhibit C is a copy of the Test Report). When questioned about
the timing of his tests, Barnett testified as follows:

Q. Sir, looking at the two reports, can you tell me when it was after August 28, 2003
that you decided to perform the tests that describe the October 24, 2003 report?

A. T think it was in the following month, in September.
Q. Did you contact Mr. Krasovec before you performed the tests described in Exhibit
8?

A Eventually. Yes, | did.



‘ Based on this testimony, it is clear that Barnett’s opinions concerning his comparative analysis
were not part of his Report. Therefore, he should be barred from offering any opinions at trial
regarding his comparative analysis or from referring to any documents contained in Group
Exhibit 3 to his deposition.

3. Barnett Should Be Barred From Offering Any Opinions Regarding
The Documents Contained In Group Exhibit 4 To His Deposition

On the day of his deposition, Bamett produced four file folders of documents which, with
the exception of four documents, were not referenced in his Report or produced as part of his
file. In fact, Barnett testified that he had gathered these additional materials on October 30,
2003, the day before his deposition. (Bamett Dep. Exhibit B, pp 18-19), Plaintiffs had these
documents marked as Group Exhibit 4 to Barnett’s deposition. Group Exhibit 4 consists of file
folders marked:

« = Literature

e Accident Statistics

« Accident Frequency Rate
» Knots

The individual documents contained within these file folders are:

Literature:

* Classification of Safety Devices
* Philosophical Aspects of Dangerous Safety Systems
« = ‘She Principal of Uniform Safety
e = The Principals of Human Safety
« Reasonably Foreseeable Use
« Above Ground Swimming Pool Safety Concepts
» Safeguard Evaluation Protocol
« Dependency Hypothesis
10