Commercial Litigation and Arbitration

The Danger of Taking Expert Depositions — Opening the Door to New Opinions — Expert Report’s Purported Reservation of the Right to Add or Amend Opinions Based on New Information Rejected

Goesel v. Boley Int’l (HK) Ltd,, 2012 U.S. Dist. LEXIS 152524 (N.D. Ill. Oct. 24, 2012):

This action seeks to recover damages sustained by then five year old Cole Goesel ("Cole") when a plastic toy sword that he was playing with -- part of a toy product known as the "Boley Cosmic Robot" -- shattered and a piece of that sword pierced Cole's eye. After discovery was closed, this Court approved and entered the jointly submitted final pretrial order ("FPTO") on June 21, 2012, and the litigants adhered to the schedule provided there for the submission of motions in limine by tendering a host of such motions -- 13 by plaintiffs (cited simply "P. No. --") and 11 by defendants. ***

Here in summary are the aspects of Reiner's proposed testimony sought to be barred by plaintiffs' motions:

1. P. No. 1 objects to Reiner's opining on the type of plastic of which the sword that injured Cole and the sample swords tested by plaintiffs' opinion witness were manufactured.

2. P. No. 2 seeks to bar Reiner's testimony as to the reasonable foreseeability of Cole's conduct at the time of the occurrence.

3. P. No. 3 seeks to preclude Reiner's proposed testimony criticizing the manner in which plaintiffs' opinion witness conducted abuse testing of those sample swords.

As to P. No. 1, plaintiffs have submitted evidence from a highly credentialed opinion witness, Dr. Duane Priddy, who conducted a sophisticated chemical analysis that concluded the sword that shattered was manufactured from a type of plastic known as "crystal" or "general purpose" polystyrene. By contrast, nothing in Reiner's history in the toy industry gives him even the slightest of credentials to speak to that issue, thus presenting the familiar situation in which a proposed witness has credentials that would enable him or her to testify in other areas but not on the subject under consideration (see, e.g., DePaepe v. Gen. Motors Corp., 141 F.3d 715, 720 (7th Cir. 1998)).

Defendants' attempted response to P. No. 1 offers nothing substantive to support Reiner's testimony on a subject in which he is totally lacking in qualifications. Hence P. No. 1 is granted.

As for P. No. 2, it is a long time since Reiner was five years old – his CV reflects that he graduated from Rensselaer Polytechnic Institute more than a half century ago. More seriously, his Fed. R. Civ. P. ("Rule") 26(a)(2)(B) report said nothing at all on the issue of foreseeability, a subject on which he later advanced an ipse dixit during his post-report deposition.

Footnote 2. This Court regularly urges counsel in cases before it to read and consider the first-rate article by Gregory Joseph in the American Bar Association's Litigation magazine (Expert Approaches, 28 No. 4 Litigation 20 (Summer 2002)) in which he points out the risk involved in taking such post-report depositions. Without such a deposition, the opinion witness' testimony is circumscribed by the content of the report, while a deposition poses the risk of opening up other areas as well.

In that respect Reiner's background and experience are singularly deficient in any showing that would entitle him to claim "scientific, technical, or other specialized knowledge [that] will help the trier of fact to understand the evidence or to determine a fact in issue" (the language of Evid. R. 702(a)). Instead members of the lay jury will be able on their own to deal with the issue of foreseeability. Indeed, Reiner's willingness to reach out gratuitously beyond his own field of special knowhow appears to raise serious concerns as to his general credibility.

P. No. 3 also relates to a subject beyond the scope of the Reiner written report: During his deposition he said "that he also had 'questions' regarding the manner in which Plaintiffs' expert, Timothy Pine, had conducted abuse testing of other, identical toy swords also sold by Defendants" (P. No. 3 at 2). But as P. No. 3, id. went on to state:

Mr. Reiner, however, admitted at the deposition that he had not formulated a specific opinion on whether Mr. Pine's testing was consistent with the applicable requirements for such testing set forth in ASTM F-963. Further, Defendants have never supplemented Reiner's report to identify any definitive criticisms of Mr. Pine's tests.

Once again the wisdom of Greg Joseph's caveat is evident. This Court takes seriously its close of discovery orders, which it enters only when both sides have confirmed that they are through with the process -- in other words, its issuance of an FPTO is indeed "final," absent some extraordinary reason for changing the ground rules for trial that the FPTO establishes. In that regard this Court will not credit or honor the hedge that Reiner attempts to insert at the end of the "Conclusion" section of his written report:

Be advised that this report is based on information received to date; I reserve the right to change or amend my opinion, after receipt of further information through discovery.

In sum, P. No. 3, like P. Nos. 1 and 2, is granted.

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