Thursday, September 23, 2010

Whirlpool generates more evidentiary rulings

If I were better at this I'm sure I could work up a Scylla and Charybdis joke.

LG Electronics v. Whirlpool Corp., 2010 WL 3613814 (N.D. Ill.)

And the hits just keep on coming!  This one’s about LG’s motion to exclude the testimony of Whirlpool’s expert Dr. Subbaiah Malladi.  After the Daubert hearing, the motion was granted on part and denied in part.

Dr. Malladi has an extensive background in mechanical engineering and studies how design specifications and consumer use lead to product failure, with experience with washers and dryers. He reviewed dictionaries, handbooks, and encyclopedias; bought the LG, Whirlpool, and other dryers marketed as steam dryers; performed various tests; and investigated how people use the word "steam" in magazines, patents, and advertisements. He was disclosed as an expert who would "evaluate Whirlpool's use of the word steam in connection with the performance of Whirlpool's Duet Steam Dryer relative to LG Electronics' (LG) claims." He opined that the Whirlpool dryer creates steam, as "authoritative references" and consumer publications use that word.

The court found his opinion relevant on the contested definitions of “steam”; his testimony, based on temperature tests of the dryer, will help the jury obtain a complete picture of what happens in the dryer.

Malladi also opined that the Whirlpool dryer is properly called a steam dryer because other home appliances and products similarly use the word steam.  LG argued that third party use was irrelevant, but Whirlpool contended that Malladi’s opinion was relevant to how the industry and consumers use the term.  The court reiterated its prior conclusion that Whirlpool had no authority on which to base its claim that competitors’ behavior is relevant to the alleged literal falsity of its own claims.  Moreover, even if this were an okay argument, Malladi isn’t the one to offer this opinion, because he provided no analysis.  He needed a recognized scientific method that was reliable and relevant; Whirlpool was essentially trying to use his status as an expert to present hearsay to the jury.  Malladi agreed during the hearing that he was “just reading literature that [he] found on the Internet to say that the discussion of steam is consistent with the definition of vapor arising from a heated surface.”  This opinion was excluded.

Malladi also opined that the Whirlpool dryer contains steam because Consumer Reports and Good Housekeeping referred to it as such.  LG argued that this was irrelevant, founded on hearsay, and not based on specialized knowledge; Whirlpool argued that it rebutted LG’s claim that Whirlpool’s products don’t create steam under any common and ordinary definition of the word steam within the washer/dryer context.  The court agreed this must be excluded: the underlying articles are inadmissible for the truth of the matters asserted therein, and reading them doesn’t require specialized knowledge or skill. 

Without knowing how Consumer Reports and Good Housekeeping came to use the term, there’s no reason to think that they didn’t just take Whirlpool’s name at face value—this could be evidence of deception as well as evidence of a broad meaning of steam.  Indeed, Malladi did not interview anyone at Consumer Reports, nor did he consider whether the articles’ authors were confused about the Whirlpool dryer.  “In essence, Whirlpool is attempting to circumvent the hearsay rules by having its expert rely on these publications to opine that there is steam in the dryer. Its effort fails.”

Similarly, Malladi was not qualified to opine on the significance of references to “steam” in patents.  He’d never drafted or interpreted a patent, is not an expert in patent construction, and didn’t know who drafted the patents; and he conceded that the patents he reviewed didn’t relate to steam dryers.  Even the LG patents weren’t sufficiently shown to be admissions by LG—Whirlpool offered no evidence that the inventors are or were LG employees.

The court also struck Malladi’s opinion that the Whirlpool dryer can relax wrinkles and reduce odors, because he only based his opinion on his own lay use of the dryer and a review of Consumer Reports and Good Housekeeping, without any testing or experience on the topic.

Malladi’s opinion based on the discussion of steam in the Encyclopedia of Chemical Technology, however, was admissible; LG’s disagreements went to weight (including whether he was taking the relevant language out of context) rather than admissibility.

Finally, the court rejected Malladi’s opinion that the difference between steam and conventional dryers was not their ability to produce steam while drying wet clothes but their ability to generate steam when dry clothing is placed in the dryer, because steam dryers are intended to relax wrinkles and reduce odors when dry clothing is placed in the dryer.  Though Malladi did examine steam dryers, he didn’t examine any conventional dryers or conduct wrinkle/odor testing in such dryers. He thus lacked a basis on which to compare steam dryers with conventional dryers; his opinion had to be excluded because it consisted of mere unverified statements.

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