Citations
- 156 F. Supp. 2d 697
Full opinion text
ORDER
ROSEMOND, United States Magistrate Judge.
Before the Court is “Defendant’s Motion To Bar The Testimony Of Michael Morse ”. The motion is granted in part and denied in part.
The underlying action arises out of the electrocution death of a 15-year old boy who died while using a submersible pump manufactured by the defendant to remove accumulated rain water from an above ground swimming pool in his backyard. The product involved is a Wayne Model CDU 800 sump pump. The pump has an electric motor that is contained inside the metal body or “case” of the sump pump. Affixed to the top of the pump case is a switch housing, which is made of noneon-ductive plastic. It houses the two connection terminals for the electric motor (the “hot” and the neutral), as well as the ground terminal which is connected to the metal case of the sump pump. The sump pump’s power cord, which connects the electric motor to an external power source, enters the pump through a seal arrangement in the top of the switch housing. The seal is formed by a rubber grommet which surrounds and fits tightly against the outer sheath of the power cord. Inside the switch housing, the sheath of the power cord terminates, exposing the individually insulated lead wires of the power cord. These lead wires, consisting of the “hot” wire, the neutral wire and the ground wire, connect to the two motor terminals and the ground terminal inside the switch housing.
The power cord is secured in the seal by means of a strain relief clamp. This clamp is crimped tightly onto the sheath of the power cord in the assembly process. Because the outside diameter of the strain relief clamp is larger than the inside diameter of the hole in the rubber grommet through which the power cord enters the switch housing, the clamp prevents the power cord from being pulled out through the seal and allowing water to enter the switch housing.
The accident that is the subject of this litigation occurred on June 13, 1995. At that time, the plaintiffs decedent was using the sump pump to drain approximately 6 to 8 inches of water from a swimming pool in his backyard. Two days after the accident, on June 15, 1995, as part of its cause of death investigation, the McHenry County Sheriffs Office delivered the sump pump to Packer Engineering (“Packer”), an independent engineering firm, for analysis.
Packer carefully inspected, photographed and documented the condition of the sump pump and prepared a written report of its findings. Packer’s photographs show that the power cord of the sump pump was pulled out of the watertight seal past the point where the outer sheath of the power cord terminates. This resulted in the three inner lead wires of the power cord, which are normally located inside the switch housing, being pulled up through the watertight seal. This, in turn, created a l/16th inch gap in the watertight seal, which allowed water to enter the switch housing.
The Packer photographs also revealed the absence of a strain relief clamp either on the sheath of the power cord or inside the sealed switch housing. Significantly, the water from the decedent’s swimming pool was still inside the switch housing when Packer first unscrewed the cover, indicating that the switch housing had remained screwed in place from the time of the accident until the time of Packer’s inspection. Plaintiff maintains that the absence of a strain relief clamp proves that the sump pump was defectively manufactured.
Although the Packer photographs show that the strain relief clamp was absent from the power cord and the switch housing, the photographs show distinct marks on the sheath of the power cord in the location where the clamp was supposed to be. These marks correspond precisely to the points around the circumference of the power cord to which a properly crimped strain relief clamp would apply pressure.
Pursuant to plaintiffs Second Amended Complaint, plaintiff pursues two theories of liability, to-wit: negligent manufacture of the submersible pump and a defectively designed submersible pump. With respect to plaintiffs assertion that the pump was defectively designed, plaintiff charges that there should have been a supplemental restraint system in place on the pump. Plaintiff maintains that such a supplemental restraint system would have protected against the possibility that users, carrying the pump by the cord, would apply pressure on the strain relief clamp and might, ultimately, cause the strain relief clamp to fail, thereby allowing the power cord to be pulled out of the pump’s housing while still attached to the pump’s motor. Under such circumstances, argues the plaintiff, water would enter the pump, become electrified, and any individual exposed to that electrical force could suffer a fatal electrical shock.
Plaintiffs counsel hired Mr. Greg Kap-lan to devise and fabricate a supplemental restraint for the exterior of the sump pump at issue and to provide an estimate of the manufacturing and supply costs for such a part. As Mr. Kaplan himself states, he was retained “to make a clamp. [He] was not brought [into] [the case] to evaluate ... the existing unit.” Mr. Kaplan was to offer an opinion on the supplemental restraint device designed by him and provide a basis for his belief that the device could be manufactured at a cost of less than 15