Motion 3 - product liability motion to strike expert testimony
Respectfully Submitted, Stone Container Corporation, a Delaware corporation, One of its attorneys, Eric D. Kaplan , Kaplan Papadakis & Gournis, P.C., 100 N. LaSalle Street, Suite 2215, Chicago, Illinois 60602, (312) 726-0531, Attorney No. 36826, Michael H. Berman, Michael H. Berman P.C., 100 N. LaSalle Street, Suite 2215, Chicago, Illinois 60602, (312) 726-0531.
Defendant, Stone Container Corporation (“Stone”), by its attorneys, KAPLAN PAPADAKIS & GOURNIS, P.C. and MICHAEL H. BERMAN, P.C., hereby moves to strike the testimony of Plaintiff's opinion witness, Donald Person, stating as follows:
1. On October 17, 1995, Plaintiff was injured when he stood on a load of corrugated bundles and pulled on a band.
2. At trial, Plaintiff called Donald Person (“Person”) to testify as to custom and practice in the corrugated container industry and also to testify as to his opinions as to the cause of the accident.
3. Person has no packaging knowledge other than his experience at Acme Steel Strapping and his employment by GSA. Prior to the trial, Person had no experience whatsoever in the shipment or transportation of corrugated containers similar to the corrugated containers made by Stone and transported by FAB.
4. Person's company, Acme, did not manufacture plastic strapping similar to the Tenax 1716 strapping at issue in the present case until 1998, 3 years after the accident in this case.
5. Person testified that in his opinion, Stone should have used air bags even though he knows of no corrugated container manufacturer that ships corrugated containers less than 50 miles with air bags. He also testified that air bags are used in inter modal transport of goods and open container transport, neither of which are at issue in this case. He further testified that ASTM standards 3950 and 4675 do not require or even mention air bags.
6. Person also testified that in his opinion, Stone should have banded bundles to pallets, that Stone used oversized pallets, that Stone should have locked the bundles in transit, and that Stone failed to test seals and also failed to pass warnings on to FAB. Again, Person could not point to any authority whatsoever to support his opinions other than his experiences. These experiences do not include any experience shipping corrugated containers.
7. As to his opinion as to how a strap allegedly broke, Person testified that he never examined any broken banding and that it would be “pure speculation” for him to testify as to the condition of the strapping at the time of the accident.
8. Person's testimony should be barred due to the fact that: (1) he has no experience in the corrugated container shipping industry and therefore cannot possibly testify as to the custom and practice in the industry (whether that includes the use of air bags, locking devices, unitization, seal testing or warnings in the industry); (2) Person could not testify as to the cause of the accident and that any attempt to do so would be “pure speculation” on his part; (3) he does not have experience with plastic strapping similar to Tenax and Acme did not make any such strapping until 3 years after the accident; (4) almost all of his experience with strapping involved steel strapping which is not at issue in this case.
9. Stone requests that Person's testimony be stricken from the record and that the jury be instructed to ignore the testimony.
WHEREFORE, Defendant, Stone Container Corporation, requests that this Honorable Court strike the testimony of Plaintiff's opinion witness, Donald Person, that the Court instruct the jury to ignore the testimony and other such further relief as this Honorable Court deems just and appropriate.
STONE CONTAINER CORPORATION, a Delaware corporation
One of its attorneys
Eric D. Kaplan
KAPLAN PAPADAKIS & GOURNIS, P.C.
100 N. LaSalle Street
Chicago, Illinois 60602
Attorney No. 36826
Michael H. Berman
Michael H. Berman P.C.
100 N. LaSalle Street, Suite 2215
Chicago, Illinois 60602