Allen Plyler v. Whirlpool Corporation

                              In the

    United States Court of Appeals
                 For the Seventh Circuit
No. 12-2798

ALLEN PLYLER,
                                                Plaintiff-Appellant,

                                v.


WHIRLPOOL CORPORATION,
                                               Defendant-Appellee.

        Appeal from the United States District Court for the
            Northern District of Illinois, Eastern Division.
      No. 08 C 6637 — Geraldine Soat Brown, Magistrate Judge.


     ARGUED DECEMBER 6, 2012 — DECIDED MAY 5, 2014



   Before FLAUM, EASTERBROOK, and ROVNER, Circuit Judges.
   ROVNER, Circuit Judge. Allen Plyler sued Whirlpool
Corporation, alleging that a Whirlpool microwave oven started
a fire that injured him. Proceeding by consent before a
magistrate judge on claims of strict products liability and
negligent recall, a jury returned a verdict in favor of Whirlpool.
Plyler moved for a new trial, asserting that the jury verdict was
against the manifest weight of the evidence. He also challenged
2                                                     No. 12-2798
two evidentiary rulings, one that limited his testimony to his
observations and another that allowed questions about the
relationship between the fire and his later divorce. The district
court denied Plyler’s motion for a new trial, and he appeals.
Because the district court did not abuse its discretion in
concluding that the jury verdict was supported by the evidence
or in rendering the two challenged evidentiary rulings, we
affirm the judgment of the court.
                                   I.
    The fire occurred about seven years after Plyler purchased
a Whirlpool microwave oven and installed it above the stove
at his house. On October 10, 2006, at about 9:00 p.m., Plyler
used the microwave to heat food. Eight hours later, around
5:00 a.m., Plyler’s houseguest woke him, warning him of a fire
in the microwave. When Plyler went downstairs and looked at
the microwave, he saw three fires inside of it and noticed an
orange glow near the top of the unit. After attempting to put
out the fire himself, Plyler called for help. Firefighters arrived
and extinguished the fire, but Plyler suffered physical and
emotional injuries. He injured his elbow and knee while he ran
into and out of his house during the fire, and he also
experienced post-traumatic stress disorder that he attributed
to watching his house burn. (The damage to his property is not
at issue in this case.)
   At the trial on the negligent recall and strict liability claims,
the parties’ evidence focused on the cause of the fire. An
investigator for the fire department determined that the fire
had originated near the top of the microwave, but he could not
identify a specific cause and reported the cause as
No. 12-2798                                                   3
“undetermined.” Plyler blamed the fire on a product defect
that had led Whirlpool in 2001 to recall several brands of
microwaves. Larry Latack, Whirlpool’s Director of Global
Product Safety, testified about that defect and when it posed a
risk of fire. The recalled microwaves posed a fire hazard only
if two circumstances were present: (1) the microwave
contained splattered food that had gone uncleaned for an
extended time, and (2) the microwave was running at the time
of the fire. Plyler testified that he kept the microwave very
clean and never left splattered food remaining inside the unit.
He also testified that on the night of the fire, the microwave
had been off for several hours and was not running when the
fire started.
    The trial evidence on the negligence claim also covered
testimony about the effectiveness of Whirlpool’s recall. After
Whirlpool discovered that 1.8 million microwaves contained a
defect that posed a fire risk, the corporation issued a recall
through the Consumer Product Safety Commission. Whirlpool
then mailed recall notices directly to consumers who had
purchased the affected microwaves and submitted a product
registration card to Whirlpool. In addition, it released several
news announcements about the recall. Although the average
recall leads to a company repairing or replacing only
10 to 15 percent of the affected units, Latack testified that
through its efforts, Whirlpool was able to repair 75 percent of
the microwaves covered by the recall. Plyler responded that he
never received notice about the recall, but he could not
remember whether he had submitted a product registration
card for his microwave. He testified that he paid for the
microwave with a credit card, and opined that Whirlpool
4                                                    No. 12-2798
should therefore have been able to obtain from the dealer his
contact information and notify him, along with all other credit
card purchasers, of the recall.
    The jury found in favor of Whirlpool on the negligence and
strict liability claims, prompting Plyler to move for a new trial.
He first challenged the jury’s verdict, arguing that it was
against the manifest weight of the evidence. The magistrate
judge concluded, however, that a rational jury could have
accepted Latack’s testimony that the microwave posed a fire
hazard only if heavy food had accumulated inside the unit and
the microwave was in operation. Because Plyler had testified
that his microwave was both clean and off at the time of the
fire, it was reasonable for the jury to find that the microwave
was not the cause of the fire. On the negligence claim, the court
ruled that a jury could have reasonably rejected Plyler’s
argument about the additional efforts Whirlpool should have
undertaken to notify him of the recall. Plyler’s argument, the
court explained, did not undercut the considerable steps that
the corporation had undisputably taken to contact consumers,
which made Whirlpool’s recall far more successful than the
average recall.
     Plyler’s motion for a new trial also asserted that the court
had improperly restricted his testimony in two respects. First,
the court had refused to allow Plyler to testify to his
“interpretation” of what he observed, limiting him only to his
actual observations. (The court asked Plyler’s counsel if he
objected to this restriction, and counsel said “No.”). The court
explained that this restriction was correct because it prohibited
Plyler, a lay witness, merely from giving expert testimony, but
still allowed him to give “extensive testimony about his
No. 12-2798                                                      5
perceptions of the fire.” Thus Plyler could and did “testif[y]
about what he saw in the photographs taken after the fire,
including the extent and direction of the fire.” The second
evidentiary ruling that Plyler attacked was the court’s decision
to allow Whirlpool to question Plyler about his divorce, which
occurred after the fire. Because Plyler had alleged that the fire
had caused him emotional distress, the court ruled that
Whirlpool was entitled to explore whether his divorce had
contributed to his mental and emotional distress.
                                  II.
    On appeal Plyler advances three reasons that the district
court abused its discretion when it denied his motion for a new
trial. First, he repeats his argument that the jury’s verdict was
against the manifest weight of the evidence. He next maintains
that the district court improperly barred him from offering his
lay opinion about the source and direction of the fire. And
finally, Plyler insists that the district court erred when it
allowed Whirlpool to question him about his divorce.
    Our review of a decision denying a new trial is “extremely
deferential” because the district court, having seen the
presentation of the evidence and the course of the trial, is in the
best position to determine whether the verdict was against the
manifest weight of the evidence. Galvan v. Norberg, 678 F.3d
581, 588 (7th Cir. 2012); see also Whitehead v. Bond, 680 F.3d 919,
928–29 (7th Cir. 2012). A new trial is warranted only if “the
record shows that the jury’s verdict resulted in a miscarriage
of justice or where the verdict, on the record, cries out to be
overturned or shocks our conscience.” Whitehead, 680 F.3d at
928 (internal quotation marks omitted).
6                                                   No. 12-2798
    We begin with Plyler’s argument that the evidence
unequivocally demonstrated that the microwave started the
fire. He points to his own testimony that he saw flames on the
top of the microwave and to the testimony of a fire investigator
who concluded that the fire appeared to originate on top of the
microwave. But Plyler’s argument does not consider the record
as a whole. Latack, Whirpool’s Director of Global Product
Safety, testified that the microwave posed a fire risk only if it
contained splattered food and was running, and Plyler
conceded that neither condition existed when the fire started.
To justify a reversal, Plyler must do more than identify
favorable evidence that, if isolated from Whirlpool’s opposing
evidence, would support his conclusion. See Wipf v. Kowalski,
519 F.3d 380, 385 (7th Cir. 2008); Lowe v. Consol. Freightways of
Del., 177 F.3d 640, 643 (7th Cir. 1999). He must show that the
jury’s verdict is against the clear weight of all the evidence.
See Whitehead, 680 F.3d at 927. When we view the evidence in
the light most favorable to Whirlpool, as we must when
reviewing a verdict in its favor, see Galvan, 678 F.3d at 588;
Wipf, 519 F.3d at 384, we conclude that the jury could have
reasonably accepted the evidence offered by Whirlpool that the
microwave did not cause the fire. By accepting that evidence
refuting causation, the jury reasonably rejected both the
negligence and strict liability claims. See Malen v. MTD
Prods., Inc., 628 F.3d 296, 303 (7th Cir. 2010) (explaining that
proof of causation is vital to both negligence and strict
products liability claims).
   Although the jury’s verdict is justified by the evidence
disproving causation alone, Plyler asserts that the weight of the
evidence establishes that, for his negligence claim, Whirlpool
No. 12-2798                                                    7
breached the duty of care that it owed him for a recall. He
insists that his testimony—that he purchased his oven with a
credit card—provided a “sufficient factual basis” for the jury
to conclude that Whirlpool should have done more to track
him down and advise him of the recall. But again, to warrant
a new trial Plyler must do more than show that the jury could
have reached the opposite conclusion. See Wipf, 519 F.3d at 385.
Rather, he must establish that the magistrate judge abused her
discretion in concluding that the jury’s verdict was justified.
See Whitehead, 680 F.3d at 928. Plyler has not done so.
Whirlpool presented evidence that, through its several recall
notices (news announcements and mailings directly to
consumers who completed product registration cards), it was
able to rework 75 percent of the affected microwaves, far better
than the average consumer product recall. The jury was not
required to accept Plyler’s argument that, because microwave
dealers may have possessed his and other purchasers’ credit
card information, Whirlpool’s above-average recall efforts fell
short of due care. Thus, the district court properly concluded
that the jury’s verdict was not against the clear weight of the
evidence.
    Plyler next asserts that the district court erred when it
restricted him to offering testimony based on his own
perceptions. He contends that this ruling erroneously barred
him from testifying to his inferences about the cause of the fire
because those inferences were “tethered” to his perceptions.
Putting aside the likelihood that his counsel waived this
contention in the district court when he said that he had no
objection to the restriction, we conclude that the magistrate
judge correctly enforced Federal Rule of Evidence 701. Under
8                                                     No. 12-2798
that rule, the judge properly allowed Plyler to testify about
events that he observed, but not his interpretation of them. As
a lay witness, Plyler could testify to his observations of the fire
and its aftermath, but not draw inferences about its origin,
which requires specialized knowledge. See United States v.
Wantuch, 525 F.3d 505, 513 (7th Cir. 2008) (stating that lay
opinion testimony is admissible only to help jury understand
facts about which witness is testifying); United States v. Conn,
297 F.3d 548, 554 (7th Cir. 2002) (explaining that lay opinion
testimony is not admissible to “provide specialized
explanations or interpretations that an untrained laymen
would not make if perceiving the same acts or events.”)
(internal citation and quotation marks omitted). The magistrate
judge thus properly limited Plyler to offering testimony based
only on his own perceptions.
    Finally, Plyler challenges the district court’s decision to
allow Whirlpool to cross-examine him about his divorce. He
argues that his divorce did not contribute to the emotional
distress that followed the fire, so he contends that questions
about his divorce were irrelevant. Evidence is relevant if it has
“any tendency to make a fact more or less probable,” see FED.
R. EVID. 401, and we give significant deference to a district
court’s decision weighing the probative value against
prejudice, see Whitehead, 680 F.3d at 930; Cerabio LLC v. Wright
Med. Tech., Inc., 410 F.3d 981, 994 (7th Cir. 2005). The inquiry
into the emotional impact of Plyler’s divorce was relevant to
damages because, after Plyler testified that the fire caused him
emotional distress, Whirlpool was entitled to explore
whether—despite his denial—other sources, including his
divorce, contributed to his emotional distress. See FED. R.
No. 12-2798                                                 9
EVID. 401. Therefore, the district court did not abuse its
discretion in allowing questions about the emotional impact of
his divorce.
                                                 AFFIRMED.