would not have prevented the Dewick accident” (M, R. Mem. 6:12).
In other words, Maytag claims, it is disputing only the
effectiveness of the measures and not their feasibility (id.).
But that specious distinction constitutes an unsuccessful
effort to remove the feasibility of an earlier correction of the
claimed defect from the controverted issues category. Under the
caselaw the feasibility inquiry encompasses a whole slew of
interrelated components, including not only the question of the
possibility of correction as such but also more nuanced
considerations such as the “economy, practicality and
effectiveness” of such corrections (see Oberst v. Int’l Harvester

Co., 640 F.2d 863, 865 (7th Cir. 1980); Anderson v. Malloy, 700

F.2d 1208, 1213 (8th Cir. 1983)). Because effectiveness is thus
interlaced with feasibility as contemplated by Rule 407, Maytag’s
proposed stipulation as to “feasibility” is quickly negated by
its explicit statement that it is not stipulating that those
changes would effectively have prevented Michael’s injury. And
with the issue of feasibility thus remaining in play, evidence
about any later design changes that Maytag made to the range

remains admissible according to Rule 407 (Ross v. Black & Decker

inc., 977 F.2d 1178, 1185 (7th Cir. 1992)).

Finally, Motion 6 includes a demand that evidence of
Maytag’s subsequent remedial measures not be allowed “merely to

contradict the testimony of a defense witness” (M. Motion 6:2; M.

19



Punitive damages are available in Illinois only where a
defendant has acted in a willful and wanton manner, and not
merely negligently (see, e.g., Loitz v. Remington Arms Co., 138
T11.2d 404, 415-16, 563 N.E.2d 397, 402 (1990)). And as
Dewick I, 296 F.Supp.2d at 907 details, Illinois law articulates
two overarching inquiries that can be used to inform that
determination:

1. Did defendant know that its product was defective
and likely to cause injury?

2. Despite that knowledge, did defendant fail to take
proper steps to avoid the potential for injury?

As to the first of those questions, the evidence that Maytag
was aware of two substantially similar earlier incidents in which
other infants were burned contributes to the permissibility of a
finding that Maytag was aware of the problem with its range and
of its potential to cause injuries (D. Resp. 2:14-15; Moore v.
Remington Arms, 100 I11.App.3d 1102, 1110-11, 427 N.E.2d 608,
614-15 (4th Dist. 1981)).° Maytag stresses that it is not enough
after Loitz simply to adduce raw evidence of prior substantially
similar incidents, without examining such other factors as the
number of products sold and total amount of usage, as the basis

for imputing knowledge to Maytag that the range was likely to

® This opinion’s later discussion of Motion 7? explains why

those two prior incidents are sufficiently similar to support a
permissible comparison for that purpose.

13



across the age span of the three infants {just five months) are
‘“distinction[s] without a difference” (D. Resp. 7:33).

Maytag is also wrong in arguing that some claimed
evidentiary gaps, such as Dewicks’ inability to allege precisely
how Michael opened the broiler door or the fact that Hyde focused
only on the developmental capabilities of a ten month old (and
not a child two or five months older), destroy the admissibility
of the other accidents (M. Motion 7:2-3; M, R. Mem, 7:13-14).
Instead such evidence will be admitted at trial, with Maytag of
course free to point to any claimed dissimilarities between the
incidents (caused either by asserted evidentiary holes or by the
degree to which the incidents are not identical) (Mihailovich, 359
F.3d at 908-09).

Again by way of summary, evidence as to the Drozd and
Garland claims is admissible for the limited purpose of
assertedly showing that the injuries were foreseeable because
Maytag had notice of the range’s propensity for injuring young
children. That evidence may not, however, be used to demonstrate

the alleged harmfulness of the range.!®

14 Again the blind spot of Maytag’s counsel (see n.7)

manifests itself here. It is of course totally irrelevant to the
viability of Hyde’s opinions as to Michael that Hyde did not
analyze whether design changes would prevent older children from
opening the broiler door, as M. R. Mem. 14 seeks to emphasize.

*8 Maytag has not invoked any of the concerns contemplated

by Rule 403 that could cut against admissibility. But this Court
reserves the possibility, as the trial unfolds, not only to give

23



under Daubert-Kumho is that the opinion be both reliable and
relevant (Daubert, 509 U.S. at 590-91, 597; Smith v. Ford Motor

Co., 215 F.3d 713, 718 (7 Cir. 2000)). And whatever pigeonhole

Hyde might be considered as occupying for purposes of various
aspects of his proffered opinion, this opinion would of course
necessarily look to those dual requirements. But because
Motion 1 (other than a brief passage at M. R. Mem. 1:7-8)
challenges the admissibility of Hyde’s opinions solely on
reliability grounds, this opinion needs to discuss only that
branch of the analysis.

As to that reliability prong, cur Court of Appeals uses two

evaluative criteria; “whether the expert is qualified in the
relevant field and whether the methodology underlying the

expert’s conclusions is reliable” (Masters v. Hesston Corp., 291]

F.3d 985, 991 (7th Cir. 2002)). Those criteria are examined here
in turn.

As to Hyde's qualifications, Rule 702 permits an expert to
bé qualified through “knowledge, skill, experience, training or
education.” That proposition is really a two-sided coin--
abstract academic credentials (no matter how impressive) should
not be overvalued if not apropos to the zone of expertise
required, while at the same time relevant practical experience
should not be undervalued if pertinent (Smith, 215 F.3d at 718).

Hyde’s resume provides a snapshot of some of his relevant



R, Mem. 6:13). But such use would not run afoul of Rule 407,
which by its terms allows that category of evidence to be

introduced for impeachment purposes (Pub. Serv, Co. of Ind., Inc.

v. Bath Iron Works Corp,, 773 F.2d 783, 792 (7th Cir. 1985)). To

be sure, that exception must be carefully cabined so that it
doesn’t swallow the entire rule or offend the policy concerns

underlying Rule 407 (id.; Flaminio v. Honda Motor Co., 733 F.2d

463, 468 (7th Cir. 1984)). But all that means is that the motion
in limine must be rejected, with Maytag having the opportunity to
reassert its objection in the context of the actual testimony as
introduced at trial.

In sum, all of Dewicks’ evidence about the design changes
Maytag made after Michael’s accident is admissible on the grounds
stated here (unless, of course, barred at a later time on some
other ground). Motion 6 is denied,

Motion 7 (Dkt. No. 63-1)

M. Motion 7:1 opposes Dewicks’ introduction into evidence of
prior accidents involving the same range “for the purpose of

permitting the jury to draw an inference as to the harmful

% D, Resp. 6:32 also alludes to the admissibility of
evidence about Maytag’s consideration of potential design
modifications before Michael was injured. Maytag’s Motion 6 did
not seek to exclude that evidence--rightfully so, given this
Court’s earlier ruling (Dewick I, 296 F.Supp.2d at 910-11) that
such evidence is outside the scope of Rule 407 entirely and
(absent another ground for inadmissibility) is fair game at
trial.

20



the mechanism of how the door was opened (regardless of how the
other two children did in fact open the door) (M. Motion 7:2; M.
R. Mem. 7:13).

But those arguments fail to create an outright bar because
“substantially similar” does not equate to “identical”—-that is,
properly comparable incidents need not be carbon copies of
Michael’s accident to warrant admissibility (Mihailovich, 359
F.3d at 908). Moreover, the foundational requirement of
substantial similarity is relaxed even further when prior
accidents are introduced only to show that a defendant had notice
of a condition and not as substantive evidence that the presence

of the condition created liability (Nachtsheim vy. Beech Aircraft

Corp., 847 F.2d 1261, 1269 n.9 (7th Cir. 1988)).

Indeed, Mihailovich, 359 F.3d at 908 has recently reminded
that it is the defect or danger alleged by a plaintiff that
defines the degree of commonality required to find incidents
substantially similar, In this case the asserted danger is
simply that an infant could inadvertently open the broiler door
of the particular model of Maytag range, regardless of the exact
mechanism used or the precise age of the child (see Ross, 977
F.2d at 1185). So Dewicks are correct in contending (at least
for purposes of determining substantial similarity as it relates
to notice) that any possible differences as to how the children

opened the broiler door and any slight developmental variations

22



prevent that injury also provides the basis for a punitive
damages claim. Maytag of course disagrees, arguing both (1) that
its decision to make design changes to the range did not
necessarily connote the unsafeness of the original range design
and (2) that in any event it does not believe that the design
changes could have made (or eventually did make) the range safer
so as to have prevented an injury such as Michael’s (M. R. Mem.
2:9, T1).

Maytag’s first point (while correct) does not dispose of the
issue, because Dewicks have presented enough evidence about (at
least) the nature and sufficiency of Maytag’s investigation to
suggest that at trial the two facts might be interrelated (D.
Resp. 2:15, 16, 20, 22). And as to the second point, it is
enough to say that the effectiveness of the design changes that
Maytag discussed before Michael’s injury and then completed after
his injury is hotly contested.”

In sum, this Court of course reiterates that its present
ruling in no way implicates a substantive decision on the
propriety of punitive damages--that will be for the jury to
determine. All that has been established here is that Dewicks
may proceed with that aspect of their suit by presenting at trial

evidence that could potentially establish the basis for a

1° That subject has been addressed in the June 4 Opinion’s

ruling as to Motion 1, and it will be discussed further here in
dealing with Motion 6

17



depends is not that testing is a prerequisite for the

admissib ty of alternative design suggestions, but rather that
without seme assurance of reliability--via a sound methodology
such as testing--testimony cannot be presented to a jury (see,
e.g-, Bourelle, 220 F.3d at 538). For example, in Masters, 291
F.3d at 992 (emphasis added) the witness was prohibited from
offering an opinion as to the feasibility of a product redesign
because he had done “no testing or research.” And similarly in
Dhillon, 269 F.3d at 869 the witness could not testify to his
proposed design alternatives because of a general “failure to
take any steps that would show professional rigor in the
assessment of the alternative designs.”

What all of that makes plain is that Hyde’s failure to
conduct actual hands-on testing does not mandate a determination
that the methodology he used to form his opinions about the
safety of the range and about alternative designs that might have
been safer was not reliable (Cummins v. Lyle Indus., 93 F.3d 362,
369 (7th Cir. 1996)). To the contrary, this Court holds that the
methodologies Hyde did employ (including performing force tests,
making calculations using anthropometric data and reviewing other
publicly available information about existing ranges with
features similar to his suggested changes) sufficiently guarantee
that certain of his opinions--those as to the safety (or lack of

safety) of the original range and as to the alternative designs



question of the safety of a 10 month old in relation to broiler
doors, given its emphasis on the paucity of similar occurrences
when it comes to arguing foreseeability or unforeseeability.
Instead a far more realistic approach is to construe the general
subject for consideration as “child safety in relation to
household appliances.” And under that rubric both Hyde’s
academic training and his practical experience clearly provide
abundant qualification for his rendering of an opinion.

But the basic determination that Hyde is qualified to give
an expert opinion here is not enough: For such an opinion to be
admissible, it must also satisfy the independent requirement of
reliability based on the methodology used to reach his
conclusions (Bourelle v. Crown Equip. Corp., 220 F.3d 532, 537
n.il (7th Cir, 2000)). Because the crediting or discrediting of
Hyde’s conclusions poses a factual issue to be considered at
trial, the Daubert-Kumho assessment of his opinions’ reliability
must focus exclusively on that methodology and not on his
ultimate conclusions (Chapman v. Maytag Corp., 297 F.3d 682, 687
(7th Cir, 2002); Smith, 215 F.3d at 718). And to that end the
most significant reliability factor is whether a particular
proposed expert (whether or not classified as a “scientist” as
such) has used the scientific method to arrive at his or her
conclusions and opinions (Chapman, 297 F.3d at 688).

Hyde has testified that he did use the scientific method in



qualifications. He holds a college degree in Safety and Fire
Protection Engineering Technology, has supplementary
certifications as a product safety professional and specialist
and is a member of several professional organizations devoted to
product safety, safety engineering and safety testing. Most
significantly, Hyde has worked for over a quarter century in the
product safety arena. Much of his professional experience
involves evaluating product safety from an accident prevention
standpoint. During his time as a safety and fire consultant
about half of Hyde’s time was spent analyzing products for
accident prevention (Hyde Dep. 23-24). And in his 11 years as a
product and safety engineer Hyde evaluated a whole slew of
products (including fans, heating equipment, humidifiers and
vacuum cleaners) with an eye towards safety concerns (Hyde Dep,
25-26)--and for present purposes, one key component of his safety
analysis included determining whether the products posed accident
risks to children less than a year old (Hyde Dep. 26-28).

Maytag’s contention (M, Mem. 1:16, M. R. Mem. 1:1~-3) that,
because Hyde has never previously analyzed the specific safety
issue of how a 10 month old infant interacts with a broiler door,
he is somehow unqualified to render an opinion here takes far too
restrictive a view of what Rule 702 calls for as to the scope of
a witness’ expertise. Indeed, it is extraordinarily ironic for

Maytag to urge that the issue be whittled down to the narrow



punitive damages award.?!

Motion 6 (Dkt. No. 62-1

Here Maytag postulates that Rule 407 dictates that Dewicks
should not be permitted to introduce evidence of any design
changes Maytag made to the broiler door after Michael’s accident
(M, Motion 6:1-2). Rule 407 states that evidence of subsequent
measures “that, if taken previously, would have made the injury
or harm less likely to occur” cannot be introduced “to prove
negligence, culpable conduct, a defect in a product, a defect in
a product’s design, or a need for a warning or instruction.”
Rule 407 specifically does not require that evidence of those
measures be excluded “when offered for another purpose, such as
proving ownership, control, or feasibility of precautionary
measures, if controverted or impeachment.”

On that score Dewicks contend that evidence of the later
design changes is admissible because Maytag has placed
feasibility into controversy by taking the position that those
changes did not render the oven safer and would not have
prevented Michael’s injury (D. Resp. 6:31-32), Maytag quickly
counters by agreeing to “stipulate that the subsequent remedial
measures at issue were feasible at the time of the Dewick

accident,” while still maintaining that its “alternative designs

“ This denial of Motion 2 is by definition linked to the

June 4 Opinion’s rulings as to Motions 3, 8 and 11.

18



alternatives (Hyde Rep. 9, 13). Hyde did not test any of those
alternative designs with actual children, nor did he appear to
conduct any research or collect any data regarding his cther
alternative design suggestions or regarding warnings.

Maytag cites to several Seventh Circuit cases for the
proposition that a witness’ failure to engage in the physical
testing of suggested alternative designs precludes him from
testifying about those suggestions (see, ¢.g., Masters, 291 F.3d

at 992; Dhillon v. Crown Controls Corp., 269 F.3d 865, 870 (7th

Cir. 2001)). But despite any such emphasis on the need to test
alternative designs, those and other cases also consistently

remind that the Daubert-Kumho reliability inquiry is a flexible

one and that “no single factor, even testing, is dispositive”
toward determining whether a witness’ methodology is sufficiently

reliable to admit his opinion testimony (Dhillon, 269 F.3d at

870; Smith, 215 F.3d at 719; see also Kumho, 526 U.S. at 150,

152). Instead of making any particular methodology the sin qua
non of reliability, a court must keep its eye on the ultimate
question: Do the methods used by a witness adequately guarantee
that his or her findings (while not necessarily correct, a matter
for the factfinder to decide at trial) are at least reliable (see

Cooper v. Carl A. Nelson & Co., 211 F.3d 1008, 1020 (7th Cir.

2000))?

Indeed the central thrust of the cases on which Maytag



Conclusion

This opinion has granted Maytag’s Motion 1 in part and
denied it in part, denied Motions 2 and 6 and granted Motion 7
for the limited purpose it seeks to advance, With all the
parties’ motions in limine now having been dispatched, counsel
for the parties are directed to transmit letters to this Court on
or before July 20, 2004, with copies to opposing counsel,
identifying their respective unavailabilities for trial (taking
witness unavailabilities into account) between August 16 and

November 30, 2004. This Court will then set the case for trial.

Milton I. Shadur
Senior United States District Judge

Date: July 6, 2004

the appropriate cautionary instructions as to the jury’s use of
testimony regarding the Drozd and Garland incidents, but also to
engage in appropriate Rule 403 balancing in that respect
(Mihailovich, 359 F.3d at 913).

24



‘inate Order Pont (06/7)

United States District Court, Northern District of linois

Name of Assigned Judge Milton I, Shadur Sitting Sudge if Other
or Magistrate Judge . than Assigned Judge
CASE NUMBER 03 C 1548 DATE 7/6/2004
CASE Michael A. Dewick, Sr., et al vs. Maytag Corp., et al
TITLE
[In the following box (a) indicate the party filing the motion, ¢.g., plaintitt, defendant, 3rd purly plaintiff, und (b) state briefly the nature
MOTION: of the motion being presented.)

DOCKET ENTRY:

for trial.

(i) if

qd im Filed motion of [ use listing in “Motion” box above.]

(2) a Brief in support of motion duc

Q) o Answer brief to motion due. Reply to answer brief due___

(4) oO Ruling/Hearing on __set for at

(5) im Status hearingfheld/continued to] [set for/re-set for] on _setfor at

(6) a Pretrial conferencc[held/continued to| (set for/re-set for] on setfor at

(7) Oo Trial[set for/re-set for] on al

(8) i) [Bench/Jury trial] [[earing] held/continued to at

(9) im This case is dismissed [with/without] prejudice and without costs[by/agreement/pursuant to]
OOFRCP4(m) =O Local Rule 41.) COFRCP41(a)(1) OO FRCP41(a}(2).

qo) ff {Other docket entry] Enter Memorandum Opinion and Order. This opinion has granted Maytag’s

motion | in part and denicd it in part, (57-1) denied motions 2 and 6 (58-1, 62-1) and granted motion 7
(63-1) for the limited purpose it seeks to advance. Counsel for the parties are directed to transmit letters
to this Court on or before July 20, 2004, with copies to opposing counsel, identifying their respective
unavailabilitics for trial between August 16 and November 30, 2004. This Court will then set the case

[For further detail see order attached to the original minute order.)

No notices required

oY | Notices mailed by judge's staff,

Notified counsel by telephone.

Dacketing to mail notices,

Mail AQ 450 form.
Copy w judge/magistrate judge.

SN

initials

No notices required, advised in open court

ourtroom
deputy’s

y
£0

© Wd 9

= TAP 4002

umber of notices

JUL 07 2004

dnte docketed,

TrerziNa

dade received in
central Clerk's Office

‘mailing deputy initials



Both Daybert and Kumho require this Court to be a

gatekeeper, not a roadblock (Kumho, 526 U.S. at 141). Faithful
to that mandate, it has reviewed the Hyde Report and his
deposition thoroughiy, and it has determined:

1. As to (a) the original design of the range at issue
and (b) the proposed alternative designs of a recessed
handle or a modified pivot hinge, Hyde’s methodology does
not fall outside of the reliability boundaries demarcated by
Daubert-Kumho. Hence his testimony on those subjects
(including of course the inferences that his expertise
allows him to draw from his research) is admitted.’

2. Hyde’s testimony as to other alternative design
suggestions and as to warnings is barred,

Motion 2 (Dkt. No. 58-1)

In an earlier opinion (“Dewick I,” 296 F.Supp. 905 (N.D,
Tll. 2003)) this Court addressed at some length whether Dewicks

could amend the Complaint under Fed, R. Civ. P. (“Rule”) 15(a) to

® It is worth noting that Dewicks also attack the
methodology used by Maytag’s expert to form his opinions (D.
Resp. 1:7-9). While Maytag is correct that the reliability of
its expert does not bear directly on Hyde’s reliability (M. R.
Mem. 1:5), that debate over which methodology produced more
reliable results really underscores this Court’s determination
that rather than cutting Dewicks off at the pass, the sounder
course of action is to admit Hyde’s testimony on the subjects
where his methodology has passed muster here, allowing the
parties to engage in vigorous cross-examination at trial to hash
out which witness’ approach has arguably generated more reliable
results (see Cooper, 211 F.3d at 1021).

11



of a recessed handle and a modified pivot door--are not
meaningless conclusions drawn with no substantiating analysis

(id.; see also Clark v, Takata Corp,, 192 F.3d 750, 757 (7th Cir.

1999)).”

But the answer is different as to Hyde’s opinions about
other alternative designs and about warnings. There Maytag (at
its R. Mem. 1:7) correctly argues that Dewicks have not produced
any evidence of Hyde’s use of a methodology that is sufficiently
reliable to satisfy Daubert-Kumho. Hyde has simply not explained
how he arrived at his conclusions as to any of his proposed
design alternatives other than the recessed handle and modified
pivet hinge (Hyde Rep. 13-14). And without his having tested the
efficacy of Maytag’s original warning or having drafted alternate
warnings or having offered any other comparably reliable
methodology, Hyde’s opinions on that subject cannot he
characterized as anything more than speculation or personal
observation (Chapman, 297 F.3d at 688; Bourelle, 220 F.3d at 538-

39).

7 Indeed, Maytag’s repeated stress on the fact that the

other two children were older and more developed than Michael at
the time of their injuries (see the later discussion of Motion 7)
displays a blind spot on the part of its counsel. If the range
posed a hazard to such children that led Maytag to redesign
changes that made it more difficult for them to pull down the
door, Hyde could logically view the pre-change situation as to
Michael as an a fortiori case for the application of his force
tests and other analysis. Certainly there was no need for him to
conduct like analyses as to older toddlers, for Maytag’s own
emphasis really concedes the issue.

10



conducting his research and formulating his opinions (Hyde Dep.
65). But this Court would shirk its gatekeeper role if it were
to accept that conclusory declaration without examining whether
Hyde's actions really comport with the standard of reliability

envisioned by the scientific method requirement (see Kumho, 526

U.S, at 141; Smith, 215 F.3d at 719).

Hyde's Report (“Rep.”) 16-19 and his corresponding
deposition indicate that he is prepared to offer opinions about a
wide range® of subjects, including (1) whether the design of the
range that was involved in Michael’s accident made it “defective,
unreasonably dangerous, and not reasonably safe for its intended
and foreseeable uses,” (2) whether the warnings that accompanied
the range were adequate and (3) whether alternative designs and
warnings could have made the range safer. Each of those subjects
calls for separate scrutiny.

To develop all of his opinions Hyde first conducted several
force tests on the Maytag range (Hyde Rep. 10-11). Relatedly he
also gathered anthropometric data for infants the same age as
Michael and used that information to determine that a broiler
door with a recessed handle or modified pivot hinge (both of
which require greater force to open than the broiler door on the

range model involved in Michael’s accident) would be safer

® In light of the serious subject matter of this lawsuit,

this should not be mistaken as a pun (even a bad one).

7



tendency or capacity of the subject oven range.” But D. Resp.
7:33-34 makes clear that such evidence is proffered only to show
that those prior incidents put Maytag on notice of a defect and
that the likelihood of injury from that defect was foreseeable.
Earlier accidents that occurred under circumstances
substantially similar to those that led to plaintiff’s accident
are relevant to whether a defendant had notice of a particular
defect or danger, so such earlier occurrences are usually
admissible under Rule 402 (Mihailovich v. Laatsch, 359 F.3d 892,
908 (7th Cir. 2004)).’* Maytag seeks to avoid the impact of that
principle by urging that the other two incidents that Dewicks
seek to admit (the Drozd and Garland claims) did not occur under
circumstances substantially similar to those of Michael’s injury.
In that respect Maytag first notes that both of the other
children were older than Michael and urges that the age
differential and corresponding developmental differences preclude
a finding of substantial similarity (M. Motion 7:2; M. R. Mem,
7:14). And Maytag also asserts that because the Dewicks do not
know @xactly how Michael opened the broiler door, the Drozd and

Garland claims cannot be substantially similar with respect to

4 Both parties consistently cite to Illinois law as to the

admissibility of prior accidents to show notice. But all of
those references are inconsequential, given the maxim that a
federal court sitting in diversity looks to federal law to decide
evidentiary issues such as this one (Klonowski v. Int’ Armament
Corp., 17 F.3d 992, 995 (7th Cir. 1994)).

21


just testimony based on science.

In brief, that previously-debated question was answered with
an unconditional “yes.” And that made it irrelevant which of the
various sources of expertise listed in Rule 702 informed a
designated expert’s opinions, although the standards for testing
the opinion may differ, For example, on the one hand most
disciplines do not implicate peer review, which Daubert, 509 U.S.
at 593 had specified as one relevant standard in the area of
“scientific” knowledge, while on the other hand aspects of the
scientific method may well be employed (or indeed required) to
reach valid opinions in fields not labeled as demanding
“scientific” knowledge.®

What remains as the common core for any Rule 702 opinion

° Any reference to Kumho is conspicuously absent from

Maytag’s submissions. Maytag’s sole focus on the Daubert
standards skews the analysis, for as Kumho, 526 U.S. at 150-51
stressed:

The conclusion, in our view, is that we can neither
rule out, nor rule in, for all cases and for all time
the applicability of the factors mentioned in Daubert,
nor can we now do so for subsets of cases categorized
by category of expert or by kind of evidence. Too much
depends upon the particular circumstances of the
particular case at issue.

Daubert itself is not to the contrary. It made clear
that its list of factors was meant to be helpful, not
definitive. Indeed, those factors do not all
necessarily apply even in every instance in which the
reliability of scientific testimony is challenged.



cause injury (M. Motion 2:8; M. R. Mem. 2:8-10; Loitz, 138 Til.2d
at 419-20, 563 N.E.2d at 404). But as Dewick I, 296 F.Supp. at
908-09 explained in detail, later Illinois cases (see, e.g.,
Barton v, Chicago & N.W. Transp. Co., 325 I11.App.3d 1005, 1032,
757 N.E.2d 533, 555 (1st Dist. 2001)) have held that the
conclusion in Loitz that a low accident ratio could bar a claim
for punitive damages has been limited to situations in which the
injury was related to an inherently dangerous product (or
activity), while most earlier cases have held that an oven range
is not traditionally categorized as an inherently dangerous
product.

Maytag first tries to jump that hurdle by arguing that even

if the Loitz focus on accident ratios is limited to inherently

dangerous situations, the scenario in this case should still be
included because “a range is a product that by its very nature
produces extreme heat that can cause injury if someone touches
the inside of it while it is in use” (M. R. Mem. 2:8). And
Maytag makes the added pitch that Illinois courts have found that
low accident ratios are relevant to the punitive damages issue
even for products that are not inherently dangerous (M. R. Mem.
2:10).

But neither of those arguments really advances the ball for
Maytag, because any determination that Dewicks may proceed with

the claim for punitive damages is firmly grounded in Loitz-~not

14



change after it became aware that two infants had been injured in
connection with the broiler. That really sidesteps significant
factors bearing on the adequacy of Maytag’s conduct. Thus, while
portions of Sargunam’s deposition allude to the possibility that
Maytag did investigate the incidents, other excerpts leave much
to be desired as to the nature and scope of any investigation and
corrective efforts (D. Resp. 2:20-21), Those conflicts in
Sargunam’s testimony exemplify the type of credibility
assessments best reserved for resolution in a trial setting
rather than via pretrial motion (see, e.g., Sarsha v. Sears
Roebuck & Co., 3 F.3d 1035, 1041 (7" Cir. 1993)).

Moreover, Maytag offers no support for its seeming position
(M. Motion 2:6) that only a complete lack of investigation (as
contrasted with a cursory ox otherwise inadequate investigation)
could support a claim for punitive damages. Although Dewicks’
evidence may not in the end convince a jury that they are
entitled to punitive damages based on the lack of quality of
Maytag’s investigation, that evidence is certainly sufficient to
go to the jury on the punitive damages issue by casting doubt on
Maytag’s claim that it conducted a thorough good faith

investigation (Loitz, 138 Ill. 2d at 427, 563 N.E.2d at 407).

As for Dewicks’ second contention (D. Resp. 2:22-23), they
urge that Maytag’s failure to implement the design change that it

considered before Michael’s injury until it was too late to

16



with Maytag’s remaining motions.*

Motion 1 (Dkt. No, 57-1)

Pursuant to Fed. R. Evid. (“Rule”) 702, Dewicks offer the
opinion testimony of Jack E. Hyde (“Hyde”). For Hyde's testimony
to be admissible under Rule 702, it must satisfy the two-part

test first set out in Daubert v. Merrell Dow Pharm., Inc., 509

U.S. 579 (1993) and later extended to fields of nonscientific

expertise in Kumho Tire Co. v. Carmichael, 526 U.S. 137 (1999).

As reflected both in Kumho and in the essentially contemporaneous
amendment to Rule 702 with its accompanying Committee Note,‘ they
eliminated any then-existing question as to whether the district

courts’ gatekeeping function applied to all expert testimony, not

* All citations to Maytag’s motions, which include

statements in their support, wil], take the form “M. Motion

_ i,” with the number preceding the colon conforming to
Maytag’s motion numbering and the number following the colon
indicating the page of the motion statement. That same usage
extends to Maytag’s memorandum (cited “M. Mem.”) in support of
its Motion 1, to Dewicks’ submissions (cited “D. Resp.”) and to
Maytag’s reply (cited “M. R. Mem.”).

* As a then member of the Judicial Conference’s Advisory
Committee on the Rules of Evidence, this Court chaired the
subcommittee in charge of drafting the proposed amendments to
Rules 701, 702 and 703, In an instance of particular
serendipity, the resulting work product had been approved by the
Advisory Committee and Standing Committee and was out for public
comment just at the time when Kumho came before the Supreme
Court--and that Court cited the Committee Note approvingly in the
course of its opinion (526 U.S. at 156-57). As a result, the
Committee Note was in turn revised to reflect the Kumho decision,
and the final product then cleared the Standing Committee, the
Judicial Conference and the Supreme Court so as to become
effective December 1, 2000.



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

MICHAEL A. DEWICK, SR., et al.,
etc.,

Plaintiffs,
v. No. 03 C 1548

)
)
)
)
)
)
)

MAYTAG CORPORATION, et al.,

)

)

Defendants.
MEMORANDUM OPINION AND ORDER

Michael Dewick Sr. and Holly Dewick (collectively
“Dewicks”), as parents of and next of kin to minor Michael Dewick
Jr. (“Michael”!), have filed a products liability action against
Maytag Corporation (“Maytag”), stemming from an incident in which
Michael climbed inside the broiler compartment of a kitchen range
manufactured by Maytag when he was 10 months old. In
anticipation of the forthcoming trial, Maytag filed 12 motions in
limine to exclude various categories of evidence.? After Motion
9 was granted by agreement, Motions 3-5, 8 and 10-12 were dealt
with in this Court’s June 4, 2004 memorandum opinion and order

(“June 4 Opinion”), This memorandum opinion and order now deals

1 This omission of “Jr.” should create no confusion,

because Michael Sr. is not referred to separately anywhere in
this opinion.

# In a reversal of the normal sequence, those motions were
filed in advance of the parties’ joint submission of a proposed
final pretrial order, which came in mid-June and was entered by
this Court on June 21, 2004.

S



include the possibility of punitive damages. That opinion, id.
at 911 (while properly not resolving the question whether Dewicks
could establish an entitlement to punitive damages at trial)
concluded that under the lenient Rule 15(a) standards Dewicks
could so amend the Complaint.

Motion 2 is thus Maytag’s second pretrial attempt to stave
off the possibility of punitive damages, this time by arguing
that Dewicks have not presented enough (or really any) evidence
to allow them to move forward with their claim for punitive
damages (M, Motion 2:1). Although Maytag (per this court’s
request) has framed that argument as a motion in limine, what
Maytag is really requesting is a judgment as a matter of law on
the punitive damages claim (M. Motion 2:1 n.1).

That being so, Maytag must show (as with a Rule 56 motion)
that when the evidentiary record is considered in the light most
favorable to Dewicks with the benefit of all reasonable favorable
inferences, no reasonable jury could return a verdict in their

favor (Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986);

Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986); Lesch

vw. Crown Cork & Seal Co., 282 £,3d 467, 471 (7th Cir. 2002)).

There is no need to rehash the entire substance of Dewick I ta
see that Dewicks have come forth with sufficient evidence to
create a genuine issue of material fact as to whether Maytag’s

conduct could justify an award of punitive damages.

12


made in spite of it. At its core Loitz, 138 Ill.2d at 419-20,
563 N.E.2d at 404 advocates a more complete exploration of the
circumstances surrounding an injury, rather than merely tallying
up prior substantially similar occurrences to reach the
conclusion that a defendant had knowledge of a particular
problem. So even if Dewicks’ evidence of prior occurrences may
not be compelling enough to get over an accident ratio threshold
and ultimately convince a jury to award punitive damages because
the infrequency of such occurrences negates the kind of
deliberate indifference (or worse) that might justify such an
award, the totality of the evidence (including the two earlier
injuries) is enough to engage the jury in the kind of holistic
evaluation envisioned by Loitz,

Next, Dewicks have also posed a jury issue as to whether
(given what Maytag already knew about the range) it failed to
take steps necessary to avoid injury. Evidence on that score is
in two areas: the asserted failure to investigate and the
asserted failure to implement contemplated design changes in a
timely manner.

As for the first of those issues, Maytag asserts at M.
Motion 2:5-6 that Dewicks have not come forward with any evidence
to refute the testimony by its Product Safety Manager Isaac
Sargunam (“Sargunam”) that Maytag reviewed the design of the

broiler door and entertained the possibility of making a design

15