Steve Stevenson v. Windmoeller & Hoelscher Corp. ( 2022 )

In the
United States Court of Appeals
For the Seventh Circuit
No. 21-2107
STEVE STEVENSON,
Plaintiff-Appellant,
v.
WINDMOELLER & HOELSCHER CORP.,
Defendant-Appellee.
Appeal from the United States District Court for the
Northern District of Illinois, Eastern Division.
No. 1:19-cv-00052 — John Robert Blakey, Judge.
ARGUED FEBRUARY 17, 2022 — DECIDED JULY 7, 2022
Before ROVNER, HAMILTON, and ST. EVE, Circuit Judges.
ROVNER, Circuit Judge. Plaintiff Steve Stevenson appeals the
district court’s decision in this product-liability action not to
appoint a neutral expert pursuant to Federal Rule of Evidence
706. Finding no abuse of discretion in the court’s decision, we
affirm.
2 No. 21-2107
I.
Stevenson was injured in the course of his employment
with a commercial printing company. He was moving a
portable ladder in order to clean a component of a Primaflex
printing press, manufactured by defendant Windmoeller &
Hoelscher Corporation, that prints flexible packaging for
consumer goods such as bread and potato chips. The printing
press is a large machine measuring some 53 feet long and 17
feet high. The ladder Stevenson was handling was one of two
supplied with the machine, and its use was necessary in order
to reach an otherwise out-of-reach printing plate on the upper
level of the machine’s interior. As Stevenson moved the ladder,
it caught on the 10-foot cable of an operator pendant attached
to the machine, which caused him to twist and injure his left
shoulder and back. He later had surgery as a result of the
injury.
Stevenson filed this product-liability suit against Wind-
moeller on theories of negligence and strict liability, arguing
that the design of the printing press—including the placement
of the 10-foot cable near the access door used to service the
interior components of the machine—was defective, in that it
foreseeably gave rise to the very scenario that injured Steven-
son: the ladder catching on the cable.
Shortly after the close of fact discovery, Stevenson’s court-
appointed counsel1 filed a motion asking the court to appoint
1
Stevenson’s original counsel withdrew shortly after this suit was removed
from state to federal court. Stevenson proceeded pro se for approximately
(continued...)
No. 21-2107 3
an engineering expert2 pursuant to Fed. R. Evid. 706, which in
relevant part provides:
On a party’s motion or on its own, the court may
order the parties to show cause why expert wit-
nesses should not be appointed and may ask the
parties to submit nominations. The court may
appoint any expert that the parties agree on and any
of its own choosing. But the court may only appoint
someone who consents to act.
Rule 706(a). This rule codifies the inherent power of a trial
judge to appoint an expert who will function as a neutral
expert serving the court rather than any particular party. See 29
Charles A. Wright & Victor J. Gold, FEDERAL PRAC. & PROC.
§§ 6301–02 (1997). The rule also specifies that in a civil case
(other than one involving just compensation under the Fifth
Amendment), the expert’s compensation is payable “by the
parties in the proportion and at the time that the court
directs—and the compensation is then charged like other
costs.” Rule 706(c)(2). Stevenson’s position was that the
appointment of an engineering expert was necessary in order
to assist the jury in understanding the manufacturing and
product evidence that the parties would present, given that the
issues raised in the case (including the design and functioning
of the printing machine, the dangers presented, the feasibility
1
(...continued)
10 months, until the district court appointed counsel to represent him.
2
Stevenson also asked for the appointment of a medical expert, but he has
abandoned that request on appeal.
4 No. 21-2107
of alternative designs, and so on) were beyond the knowledge
and understanding of the ordinary layperson. Stevenson
added that he lacked the resources to employ his own expert,
and he asked the court to tax the cost of engaging such an
expert to the defendants. In his reply brief, in response to
Windmoeller’s argument that Stevenson was really seeking the
appointment of an expert to advocate for his own position,
Stevenson clarified that he was seeking the appointment of a
neutral expert.
The district court denied this motion without prejudice and
set a deadline for the submission of Windmoeller’s anticipated
motion for summary judgment.
After Windmoeller filed its summary judgment motion,
Stevenson renewed his motion for the appointment of an
expert pursuant to Rule 706, again anticipating the need for
expert opinion testimony and emphasizing that he was asking
for the appointment of a neutral expert. The court once again
denied the motion, reasoning that what Stevenson was really
asking for was the appointment of an expert to support his
own case, rather than a neutral expert to aid the court. The
court added that under the Northern District of Illinois’ Local
Rule 83.40, Stevenson was eligible to seek reimbursement for
reasonable expert witness fees and expenses. The court added
that “[i]f the Court later determines that it really does need a
neutral expert to help evaluate the evidence, it will revisit the
issue.” The court subsequently entered an order giving
Stevenson just over one month to respond to the motion for
summary judgment.
No. 21-2107 5
Stevenson contends that the month that the court allowed
him to respond to the summary judgment motion was insuffi-
cient to hire his own expert, allow the defense additional time
for discovery related to that expert, and then for Stevenson to
file his response to the summary judgment motion. He instead
filed his summary judgment response without the support of
any expert opinion.
The district court granted summary judgment in favor of
Windmoeller. The court reasoned in the first instance that
Stevenson had no expert opinion to support his theory of the
case as to the condition and design of the printing machine,
which was “a specialized piece of industrial equipment that the
vast majority of the population has never seen or used,” and
thus was beyond the knowledge and understanding of the
ordinary layperson. Without the support of an expert to
identify any respect in which Windmoeller’s printing press was
defective, thereby rendering it unreasonably dangerous and
the proximate cause of the plaintiff’s injuries, the court con-
cluded that the factfinder could not find in favor of the
plaintiff. See, e.g., Clark v. River Metals Recycling, LLC, 929 F.3d
434, 440 (7th Cir. 2019) (noting that Illinois courts recognize
that product liability actions frequently involve specialized
knowledge or expertise outside of a layperson’s knowledge
and so may require expert testimony). The court went on to
hold that apart from the lack of expert testimony, the plaintiff’s
claims independently failed for lack of other evidence to create
a triable issue of fact.
Stevenson appeals, arguing that the district court abused its
discretion in denying his Rule 706 motion for the appointment
of a neutral expert and that the court’s refusal to appoint such
6 No. 21-2107
an expert was the determinative factor in the failure of his case
at summary judgment.
II.
In view of the permissive language of Rule 706, we review
the district court’s decision declining to appoint an expert
solely for abuse of discretion. Martin v. Redden, 34 F.4th 564,
569 (7th Cir. 2022) (per curiam); Giles v. Godinez, 914 F.3d 1040,
1052 (7th Cir. 2019); Ledford v. Sullivan, 105 F.3d 354, 358 (7th
Cir. 1997).
The purpose of a court-appointed expert is to assist the
court in evaluating the evidence or deciding a fact in issue.
Giles, 914 F.3d at 1053 (citing Ledford, 105 F.3d at 358–59). The
court may, for example, invoke the aid of an appointed expert
“to resolve the clash of … warring party experts,” Planned
Parenthood of Wis., Inc. v. Van Hollen, 738 F.3d 786, 799 (7th Cir.
2013); see also In Re High Fructose Corn Syrup Antitrust Litig., 295
F.3d 651, 665 (7th Cir. 2002); Students of Cal. Sch. for the Blind v.
Honig, 736 F.2d 538, 548–49 (9th Cir. 1984), cert. granted &
j. vacated on other grounds, 471 U.S. 148, 105 S. Ct. 1820 (1985);
Eastern Air Lines, Inc. v. McDonnell Douglas Corp., 532 F.2d 957,
1000 (5th Cir. 1976), to help the court evaluate the admissibility
of a party’s proffered expert opinion, Gen. Elec. Co. v. Joiner, 522
U.S. 136, 148–50, 118 S. Ct. 512, 520–21 (1997) (Breyer, J.,
concurring), to address ambiguities, confusion, or contradic-
tions within the parties’ opinion evidence, Walker v. Am. Home
Shield Long Term Disability Plan, 180 F.3d 1065, 1071 (9th Cir.
1999), to supply an additional, independent viewpoint when
one party has, whether for lack of resources or another reason,
omitted to present expert opinion in support of its case,
No. 21-2107 7
resulting in an incomplete or inadequate exposition of the
issues, Joe S. Cecil & Thomas E. Willging, Court-Appointed
Experts: Defining the Role of Experts Appointed Under Federal Rule
of Evidence 706, at 14 (Fed. Judicial Ctr. 1993); 29 Wright & Gold
§ 6304, at 468, or to supply expert guidance that the parties
themselves have neglected to provide on points that are
material to the court’s decision, e.g., In re Walgreen Co. Stock-
holder Litig., 832 F.3d 718, 724 (7th Cir. 2016) (noting that
district court, in evaluating reasonableness of proposed
settlement of class action challenging sufficiency of notices
provided to shareholders regarding corporate merger, could
have appointed expert to address meaningfulness of supple-
mental disclosures provided for in settlement); Ortiz v. Marti-
nez, 789 F.3d 722, 724 (7th Cir. 2015) (in international custody
dispute brought under Hague Convention, district court
appointed psychologist to evaluate children for signs of sexual
abuse as raised by respondent parent’s affirmative defenses);
Redman v. RadioShack Corp., 768 F.3d 622, 631 (7th Cir. 2014)
(noting that district court, in reviewing merits of proposed
“coupon settlement” of consumer class action, could have
appointed expert to address consumer response to coupons).
Although the rule permits a party to move for the appoint-
ment of an expert, the language of the rule envisions a neutral
expert (“[t]he court may appoint any expert that the parties
agree on and any of its own choosing”), and it is widely
understood that the job of a neutral, court-appointed expert is
to serve the interests of the court rather than those of any
party. See Martin, 34 F.4th at 569; Kennedy v. Huibregtse, 831
F.3d 441, 443 (7th Cir. 2016); Rowe v. Gibson, 798 F.3d 622, 632
(7th Cir. 2015); Van Hollen, 738 F.3d at 798–99; Jackson v. Pollion,
8 No. 21-2107
733 F.3d 786, 790 (7th Cir. 2013); DeKoven v. Plaza Assocs., 599
F.3d 578, 583 (7th Cir. 2010); High Fructose Corn Syrup Antitrust
Litig., 295 F.3d at 665; see also Hannah v. United States, 523 F.3d
597, 600 (5th Cir. 2008); Honig, 736 F.2d at 549.
Because the neutral expert envisioned by Rule 706 is one
who serves the court as opposed to a party, Stevenson’s effort
to demonstrate an abuse of discretion in the district court’s
decision not to appoint such an expert encounters a logical
obstacle from the outset. Stevenson would have to show, for
example, that the court’s own consideration of the evidence or
the issues presented was hampered by the lack of an independ-
ent expert to aid and guide the court in its evaluation of the
case. But Stevenson has not made any argument along these
lines, and indeed the record does not suggest to us that the
court had any difficulty in appreciating the nature of his claims
or in resolving the arguments presented in the briefing on
Windmoeller’s motion for summary judgment. Indeed, the
relevant point that the court made in granting the summary
judgment motion was that Stevenson’s case suffered from the
lack of partisan expert opinion to substantiate his claims, not
that the court’s evaluation was in any way hindered by the lack
of a neutral expert’s viewpoint.3
3
Stevenson points out that Windmoeller itself did not argue, in seeking
summary judgment, that the support of an expert was required in order for
him to make a prima facie case of product defect. The district court
arguably ought to have given the parties notice and an opportunity to
respond before granting summary judgment on a ground not argued by the
movant. See Fed. R. Civ. P. 56(f); e.g., Firestone Fin. Corp. v. Meyer, 796 F.3d
822, 829 (7th Cir. 2015) (citing Williams v. City of Chicago, 733 F.3d 749, 755
(continued...)
No. 21-2107 9
Stevenson nonetheless postulates that a neutral expert
might have helped his case by supplying the court with an
independent point of view that could have potentially lent
support to Stevenson’s theory that the printing press was
defective. The key word here is “potentially.”
One can only guess as to the impact that a court-appointed
expert might have had on Stevenson’s own case. Stevenson
himself concedes that there is no way to know whether or not
a neutral expert would have supported his theory of recovery.
That alone makes it impossible for Stevenson to show that he
was prejudiced by the district court’s decision not to appoint
such an expert. Coupled with the fact that a neutral expert is
meant to assist the court rather than the parties, speculation
about whatever incidental benefit that expert might have lent
to Stevenson’s case gets him nowhere in a challenge to the
district court’s refusal to invoke its authority under Rule 706.
3
(...continued)
(7th Cir. 2013)). But, of course, Stevenson himself had anticipated the need
for expert opinion in support of his case when he asked the court to appoint
an expert pursuant to Rule 706, so the district court’s rationale could not
have taken him entirely by surprise. Moreover, as framed by Stevenson’s
briefing, the issue presented in this appeal is not whether it was appropriate
in the abstract for the district court to grant summary judgment in Wind-
moeller’s favor for want of expert opinion supporting Stevenson’s theory
of the case. In other words, Stevenson does not quarrel with the notion that
the specialized knowledge of an expert was required. Rather, his argument
is that given the necessity of expert opinion to make his case, it was an
abuse of discretion for the district court to deny his Rule 706 requests and
unfair for the court to then rely on the absence of expert opinion as a basis
for entering summary judgment against him.
10 No. 21-2107
Certainly a district court, confronted with a summary
judgment record that is either devoid of expert opinion
altogether or is limited to expert opinion on only one side of
the dispute, may exercise its discretion to appoint its own
expert as one way to address the gap or the imbalance in the
record, particularly if there are issues as to which the court
believes it would benefit from an independent viewpoint. See
29 Wright & Gold § 6302, at 452 (“Appointment of a court
expert … may be justified where the parties entirely fail to
present expert testimony or only some parties present such
testimony, thus depriving the trier of fact of a balanced view of
the issues.”); § 6304, at 468 (“Th[e] judicial encroachment upon
adversary powers [exemplified by appointing a neutral expert]
is justified because it is a means of compensating for weak-
nesses in the adversary system that can undermine accurate
factfinding.”); e.g., Norwood v. Zhang, 2013 WL 5162202, at *6
(N.D. Ill. Sept. 13, 2013) (granting prisoner’s request for
appointment of expert pursuant to Rule 706 in case alleging
that health care providers committed malpractice and were
deliberately indifferent to his serious medical condition); but see
also Martin, 34 F.4th at 570 n.2 (noting that “caution is espe-
cially warranted” when party seeks appointment of expert
under Rule 706 to fill hole in its own case, and that court
should consider, inter alia, “whether appointing such an expert
may undermine the court’s neutrality”). But the court was
under no obligation to do so here, particularly when Stevenson
has been unable to identify any respect in which the court’s
own analysis was hampered by the lack of a neutral expert.
In the end, only an advocate expert could have filled the
gap that the district court cited in Stevenson’s case, and there
No. 21-2107 11
were means available to Stevenson and his counsel to engage
such an expert. We can certainly accept as true Stevenson’s
representation that he lacked the resources to pay for an
expert—and his additional assertion that his court-appointed,
pro bono counsel should not have been required to advance
the costs of such an expert—but as the district court pointed
out, Stevenson could have asked the court to pre-authorize the
payment for such an expert from a district court fund under
Local Rule 83.40. In relevant part, the rule provides:
Any party for whom counsel has been recruited by
the Court pursuant to LR 83.36 and has filed an
appearance on behalf of the party shall bear ex-
penses of the litigation to the extent reasonably
feasible in light of the party’s financial condition.
Such expenses shall include, but not be limited to
discovery expenses, subpoena and witness fees, and
transcript expenses. If the party is unable to pay the
expenses of litigation, recruited counsel may ad-
vance part or all of the payment of any such ex-
penses without requiring that the party remain
ultimately liable for such expenses, except out of the
proceeds of any recovery. The assigned attorney or
firm is not required to advance the payment of such
expenses.
N.D. Ill. Local Rule 83.40(a).
In turn, District Court Fund Regulation 4G, of the Regula-
tions Governing the Prepayment and Reimbursement of
Expenses in Pro Bono Cases, expressly provides that “[r]eason-
able costs for expert services, other than interpreters, not
12 No. 21-2107
otherwise avoided, waived, or recoverable, may be reimbursed
from the District Court Fund … .” By the terms of the local
rule, counsel has the option of either advancing the expense of
hiring an expert and then seeking reimbursement from the
court fund at a later date or seeking pre-payment of such an
expense. Rule 83.40(b). In his reply brief, Stevenson notes that,
given the likely cost of hiring an expert, prior court approval
of the expense surely would have been required. See District
Court Fund Regulations 3G, 4G. He is almost certainly correct
in that regard. But he does not explain why he could not have
obtained quotes from one or more prospective experts and
asked the district court to approve the cost in advance, so that
his counsel was not at risk of incurring substantial costs that
might not be reimbursed later. Given the option of employing
an expert at the expense of the district court fund, we cannot
see why Stevenson was not obliged to at least try to engage an
expert of his own and seek authorization for the expert to be
compensated from the district court fund.
All of this would have taken time, of course, and Stevenson,
as we have acknowledged, suggests that the one month that
the district judge gave him to respond to Windmoeller’s
summary judgment motion was insufficient for this purpose.
But Stevenson could have asked the court for more time as
necessary. Likewise, to the extent Stevenson’s engagement of
an expert might have entitled the defense to take discovery
related to his expert’s opinions, there is no reason to think that
the district judge would not have extended discovery and the
summary judgment briefing schedule for that purpose.
Stevenson also complains that although the district judge,
in denying his Rule 706 motions, said that he would revisit the
No. 21-2107 13
need for a court-appointed expert as necessary in addressing
the motion for summary judgment, he ultimately did not do so
(at least explicitly). Indeed, the judge went on to grant Wind-
moeller’s summary judgment on the ground that Stevenson
needed an expert to support his case, without acknowledging
that the court had previously denied Stevenson’s request for
the appointment of an expert. Stevenson accuses the judge of
engaging in a sort of “gotcha” reasoning in this regard. But,
again, Stevenson is failing to appreciate the distinction between
a court-appointed, neutral expert and an advocate expert
engaged by a party to support his own case. Stevenson’s case
failed at summary judgment because he had no expert opinion
to back up his own claims. The case did not fail because the
district judge did not have the benefit of a neutral expert, who
as far as we know might have supported Windmoeller’s case
or neither party’s case, as opposed to Stevenson’s case. On
summary judgment, it was Stevenson’s burden, not the court’s,
to present evidence—including, as necessary, evidence in the
form of expert opinion—demonstrating the existence of a
dispute of material fact. The court did not have an obligation
under Rule 706 to appoint an expert to help Stevenson for that
purpose. See Hannah, 523 F.3d at 600. And, in view of the fact
that the court had already made this clear to Stevenson in its
prior order denying his second request for the appointment of
an expert, the court was not required to make the same point
yet again in resolving Windmoeller’s motion for summary
judgment.
We note that the district court, in granting Windmoeller’s
motion for summary judgment, found that even apart from
Stevenson’s lack of expert testimony to support his case,
14 No. 21-2107
Windmoeller was entitled to summary judgment on other
grounds. Stevenson argues on appeal that those additional
grounds cannot be separated from his own lack of expert
testimony. We can accept this assertion as true arguendo for
present purposes. Given that the court did not abuse its
discretion in refusing to appoint a neutral expert, there is no
need to consider whether the court properly could have
granted summary judgment on those other grounds.
Likewise, we do not need to reach any other arguments on
the merits of the parties’ respective cases, including Wind-
moeller’s theory as to the post-sale modification of its printing
machine.
III.
The district court did not abuse its discretion in rejecting
Stevenson’s requests that it appoint an independent expert
pursuant to Rule 706.
AFFIRMED