Joseph Hirchak v. W.W. Grainger

J
                 United States Court of Appeals
                             For the Eighth Circuit
                         ___________________________

                                 No. 19-2642
                         ___________________________

                          Joseph Hirchak; Cindy Hirchak

                                     Plaintiffs - Appellants

                                         v.

   W.W. Grainger, Inc., doing business as Grainger, doing business as Dayton;
                                Dayton Electric

                                    Defendants - Appellees

                                  McMaster-Carr

                                         Defendant
                                  ____________

                     Appeal from United States District Court
                  for the Southern District of Iowa - Des Moines
                                  ____________

                          Submitted: September 22, 2020
                              Filed: November 17, 2020
                                 ____________

Before COLLOTON, GRUENDER, and GRASZ, Circuit Judges.
                        ____________

GRUENDER, Circuit Judge.

      Joseph and Cindy Hirchak brought claims of negligence and failure to warn
against W.W. Grainger, Inc. (“Grainger”), a distributor of industrial equipment, and
its subsidiary, Dayton Electric Manufacturing Co. (“Dayton”) (collectively,
“Defendants”). After ruling a report authored by the Hirchaks’ expert inadmissible,
the district court 1 granted summary judgment in favor of Defendants. We affirm.

                                          I.

       On October 20, 2015, a web sling (the “subject sling”) at the plant of Joseph
Hirchak’s employer, Weiler, Inc. (“Weiler”), broke, dropping its load of steel tubing
onto Joseph Hirchak and injuring him. The Hirchaks, citizens of Iowa, brought
product liability and breach of warranty claims against Grainger in Iowa state court,
alleging that Grainger supplied the subject sling to Weiler. Grainger, which is
incorporated and has its principal place of business in Illinois, removed the case to
federal court on the basis of diversity jurisdiction. See 28 U.S.C. § 1332(a). The
Hirchaks’ amended complaint added Dayton, which also is incorporated and has its
principal place of business in Illinois, as a defendant. Later, the Hirchaks narrowed
their claims against Defendants to negligence and failure to warn.

        During the time period relevant here, Grainger distributed a web-sling model
that it identified under stock-keeping unit 2MJT4. Grainger’s 2MJT4 slings were
manufactured by Juli Sling Co., Ltd. (“Juli”) and distributed by Grainger under the
Dayton brand. Because any other web-sling models that Juli manufactures are not
at issue here, we refer to slings of the same model as Grainger’s 2MJT4 slings as
“Juli slings.” We refer to Juli slings that Grainger distributed as “Grainger-
distributed Juli slings.”

      To prove that Defendants supplied the subject sling, the Hirchaks submitted
an expert report that concluded that the subject sling was a Grainger-distributed Juli
sling. The Hirchaks’ expert based this opinion on similarities that he identified



      1
       The Honorable Rebecca Goodgame Ebinger, United States District Judge for
the Southern District of Iowa.

                                        -2-
between the subject sling and two known Grainger-distributed Juli slings, one
purchased new and the other furnished by Weiler.

       To prove that they did not supply the subject sling, Defendants submitted an
affidavit from Grainger’s director of supplier management, who averred that all Juli
slings distributed by Grainger shipped from Juli with sewn-in capacity and warning
tags that the subject sling lacked. Grainger’s director of supplier management also
stated that although Weiler had a customer account with Grainger, Grainger’s sales
records listed no sales of slings to Weiler. In addition, although Weiler’s purchase
records listed numerous purchases of slings from other suppliers, they listed no
purchases of slings from Grainger. Defendants also disputed the significance of the
similarities that the Hirchaks’ expert identified between the subject sling and the two
known Grainger-distributed Juli slings, arguing that “virtually all [slings] that are
marketed in the United States” share many of these similarities.

       No Weiler employee was identified who could testify as to how the subject
sling came into Weiler’s possession. Nor does the record indicate how the known
Grainger-distributed Juli sling that Weiler furnished to the Hirchaks’ expert came
into Weiler’s possession.

       The district court granted summary judgment in favor of Defendants. First,
the district court held that the Hirchaks’ expert’s report was inadmissible because
his opinion that the subject sling was a Grainger-distributed Juli sling was based on
insufficient facts. The district court reasoned that the Hirchaks’ expert’s analysis
provided a factual basis for, at most, the premise that the subject sling was a Juli
sling. It does not follow, the district court pointed out, that the subject sling was a
Grainger-distributed Juli sling; the subject sling could well have been a Juli sling
distributed by one of Grainger’s competitors. Second, the district court held that,
without their expert’s report, the Hirchaks had failed to present sufficient evidence
that Defendants supplied the subject sling to Weiler in order to resist summary
judgment.



                                         -3-
      The Hirchaks appeal, raising the sole argument that summary judgment was
inappropriate because the district court abused its discretion in excluding their
expert’s opinion that the subject sling was a Grainger-distributed Juli sling.

                                           II.

      “We review [a] district court’s grant of summary judgment de novo.”
Hickerson v. Pride Mobility Prods. Corp., 

470 F.3d 1252

, 1256 (8th Cir. 2006). “We
review for abuse of discretion [a] district court’s ruling regarding the admissibility
of expert testimony.”

Id. “[T]he Federal Rules

of Evidence govern the admissibility of evidence in [a]
diversity case.” Wood v. Valley Forge Life Ins., 

478 F.3d 941

, 945 (8th Cir. 2007).
Under Federal Rule of Evidence 702, testimony in the form of an expert opinion
must be “based on sufficient facts” and “help the trier of fact” by applying the
expert’s “specialized knowledge” and “reliable principles and methods.” Among
the factors that determine whether an expert opinion satisfies these requirements is
its “ability to rule out other possibilities.” Lauzon v. Senco Prods., Inc., 

270 F.3d 681

, 693 (8th Cir. 2001). An expert opinion “should not be excluded [simply]
because” the expert “failed to rule out every possible alternative.”

Id. But an expert

opinion must account for “obvious” alternatives.

Id. (citing Claar v.

Burlington N.
R.R., 

29 F.3d 499

, [502-]03 (9th Cir. 1994)); see also Packgen v. Berry Plastics
Corp., 

847 F.3d 80

, 87 (1st Cir. 2017) (“An expert should adequately account for
obvious alternative explanations.” (internal quotation marks and alterations
omitted)). Otherwise, the expert either failed to base his opinion “on sufficient facts”
or, if sufficient facts were present, failed to “help the trier of fact” by explaining how
application of his “specialized knowledge” and “reliable principles and methods” to
the facts supports his opinion over the obvious alternatives. See Fed. R. Evid. 702.

       Here, the Hirchaks’ expert failed to account for the possibility that the subject
sling was distributed by another distributor of Juli slings. This is an obvious
alternative to his opinion that the subject sling was a Grainger-distributed Juli sling.


                                          -4-
As the district court pointed out, the Hirchaks’ expert made no effort to rule out this
alternative. Nor could he, as the results of his analysis at best tended to show only
that the subject sling was a Juli sling. His opinion that the subject sling was a
Grainger-distributed Juli sling was therefore based on insufficient facts, and the
district court did not abuse its discretion in excluding it. See McAndrew v. Garlock
Equip. Co., 

537 F. Supp. 2d 731

, 735 (M.D. Pa. 2008) (holding an expert product-
identification opinion “not based upon sufficient facts” because, by comparing the
defective product only to the defendant’s products, the expert failed to account for
the possibility that the defendant’s competitors’ products had similar
characteristics).

       The Hirchaks present two arguments that their expert’s opinion was based on
sufficient facts. First, the Hirchaks emphasize the factual support for the premise
that the subject sling was a Juli sling. The Hirchaks claim that this premise is
supported by the similarities that their expert’s “Fourier Transform Infrared
Spectroscopy,” “chemical,” and “microscopic” analysis revealed between the
subject sling and the two known Grainger-distributed Juli slings.

       Although Defendants contest the significance of these similarities,
characterizing “virtually all” of them as “common to four-foot long polyester web
slings, which are ubiquitous in industry,” we need not settle this dispute. Regardless
how rare the similarities in question are, they do not constitute a sufficient factual
basis for the Hirchaks’ expert’s opinion that the subject sling was also a Grainger-
distributed Juli sling. As the district court explained, this opinion cannot stand solely
on the premise that the subject sling was a Juli sling. It also requires the premise
that if the subject sling was a Juli sling, then the subject sling was a Grainger-
distributed Juli sling. Whatever support the Hirchaks’ expert’s analysis may provide
for the first premise, it provides no support for the second premise. And to satisfy
Federal Rule of Evidence 702(c), the expert opinion itself—not just one of its several
premises—must be “based on sufficient facts.” Accord Kuhn v. Wyeth, Inc., 

686 F.3d 618

, 625 (8th Cir. 2012) (“Expert evidence may be excluded if the court



                                          -5-
determines that there is simply too great an analytical gap between the data and the
opinion proffered.” (internal quotation marks omitted)).

        Second, the Hirchaks claim that the record fills the analytical gap in their
expert’s reasoning by supplying a factual basis for the second premise of his opinion.
According to the Hirchaks, the fact that a known Grainger-distributed Juli sling was
found in Weiler’s possession after the accident warrants a presumption that other
Juli slings in Weiler’s possession must also be Grainger-distributed Juli slings. This
presumption implies that if the subject sling was a Juli sling, then the subject sling
was a Grainger-distributed Juli sling.

       The Hirchaks’ argument presupposes that the record can rescue an expert
opinion from inadmissibility by filling its analytical gaps. But this is not the law.
“[C]ourts must guard against invading the province of the jury on a question which
the jury was entirely capable of answering without the benefit of expert opinion.”
Am. Auto. Ins. v. Omega Flex, Inc., 

783 F.3d 720

, 725 (8th Cir. 2015). Consequently,
we must not permit an expert to proceed “beyond [his] expertise.”

Id. at 724.

An
expert may proceed as far as—but no further than—his specialized knowledge
assists him in going. See Fed. R. Evid. 702(a) (limiting expert testimony to that
which employs the expert’s “specialized knowledge” to “help the trier of fact”);
Omega 

Flex, 783 F.3d at 723-25

(affirming the district court’s decision to admit an
engineer’s opinion that propane-gas tubing was “too thin” but not his opinion that
the tubing was “unreasonably dangerous”); Robertson v. Norton Co., 

148 F.3d 905

,
907 (8th Cir. 1998) (affirming the district court’s decision to admit a ceramics
expert’s opinion that a ceramic grinding wheel was defective but not his opinion that
the manufacturer’s warning was inadequate). This rule deprives the jury of “nothing
helpful,” 

Robertson, 148 F.3d at 908

, and it safeguards against the risk that the jury
might defer to the expert simply because of the expert’s “expertise in other areas,”
Omega 

Flex, 783 F.3d at 725

.

       Here, even if the Hirchaks’ expert’s specialized knowledge assisted him in
establishing the premise that the subject sling was a Juli sling, it did not assist him


                                         -6-
in proceeding to the opinion that the subject sling was a Grainger-distributed Juli
sling. For the limited purpose of determining whether the district court abused its
discretion in excluding the Hirchaks’ expert’s opinion, we need not decide whether
the Hirchaks are correct that the record contains sufficient evidence to support this
additional step. Even if it does, the Hirchaks’ expert was not permitted to invade the
province of the jury by taking this step for it. 2

                                          III.

       Because the district court did not abuse its discretion in excluding the
Hirchaks’ expert’s opinion that the subject sling was a Grainger-distributed Juli
sling, the Hirchaks’ only argument that the district court erred in granting
Defendants’ motion for summary judgment fails. Accordingly, we affirm.
                      ______________________________




      2
        The Hirchaks do not argue that even if their expert’s report was inadmissible,
the district court erred in granting summary judgment. Nor do they argue that even
if their expert’s opinion that the subject sling was a Grainger-distributed Juli sling
was inadmissible, the district court abused its discretion in excluding the rest of their
expert’s report. Therefore, these arguments are waived. See Liscomb v. Boyce, 

954 F.3d 1151

, 1154 (8th Cir. 2020) (“[C]laims not raised in an opening brief are deemed
waived.”).

                                          -7-

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