                          In the
 United States Court of Appeals
              For the Seventh Circuit
                       ____________

No. 05-3911
TERRY L. WINTERS,
                                        Plaintiff-Appellant,
                             v.

FRU-CON INC.,
                                        Defendant-Appellee.
                       ____________
          Appeal from the United States District Court
              for the Southern District of Illinois.
      No. 00 C 405—Clifford J. Proud, Magistrate Judge.
                       ____________
  ARGUED NOVEMBER 1, 2006—DECIDED AUGUST 22, 2007
                   ____________


 Before KANNE, EVANS, and SYKES, Circuit Judges.
  KANNE, Circuit Judge. Terry Winters’ hand was severed
at the wrist while he was working at a food processing
plant. He reached settlements with various defendants
but proceeded with his claims against Fru-Con, the com-
pany that installed the equipment that injured him.
Winters appeals the exclusion of his experts’ testimony
and the entry of judgment in Fru-Con’s favor. We affirm.


                      I. HISTORY
 A. Factual History
 In December 1998, Winters began working at Gilster-
Mary Lee’s Centralia, Illinois plant. Gilster had recently
2                                                No. 05-3911

agreed to produce cake mix and frosting for Aurora Foods,
Inc.1 Aurora would sell the cake mix and frosting under the
Duncan Hines brand name. In support of its contract with
Gilster, Aurora purchased four preexisting cake mix and
frosting manufacturing lines from a Proctor & Gamble
plant in Jackson, Tennessee. The purchased production
lines were disassembled, shipped to Illinois, and installed
in the Centralia plant. Aurora hired Fru-Con to perform
“all design, engineering and construction services neces-
sary and appropriate for the relocation and installation” of
the cake mix and frosting lines at the Centralia factory. R.
217 at Ex. 3. Fru-Con subcontracted with Logical Systems,
Inc. to update the computer programs operating the lines.
  Smoot Company, Inc., manufactured the valve that
injured Winters. The valve was located at a junction of
three tubes on one of the cake lines. The first tube brought
cake mix to the junction point. The valve’s position deter-
mined whether cake mix flowed into the second or third
tube from the first tube. The second tube connected the
junction point to a large mixer. The third tube connected
to a storage area that was used when cake mix was not
needed at the mixer. The computer control program, when
in automatic mode, determined whether to send cake
mix to the mixer or the storage area and altered the valve’s
position accordingly. Air pressure was used to move the
cake mix through the tubes and also to adjust the valve’s
position. There is no evidence in the record that Fru-Con
altered the design or structure of the tubes or diverter


1
  Pinnacle Foods Group, Inc. acquired Aurora during the
pendency of the proceedings before the district court and was
substituted as a defendant. Aurora’s change in corporate
structure does not affect our evaluation of the case and there-
fore we shall use the name Aurora consistently throughout
this opinion when referring to either Aurora or its successor
Pinnacle Foods.
No. 05-3911                                               3

valve when it installed the equipment at the Centralia
plant. Fru-Con effectively transplanted the cake and
frosting lines “as is” from the Jackson, Tennessee plant to
the Centralia, Illinois plant.
  The Centralia plant was not yet producing cake mix or
frosting when Winters was hired in December 1998.
However, during this period Winters received training
from Gilster in anticipation of his work on the production
line. Part of his training included viewing a videotape on
“lock out / tag out” safety procedures. A lock out / tag out
procedure is used by workers to allow them to safely clean
and repair automated machinery. The worker wishing
to work on machinery deactivates the machine’s power
and then places a lock and tag on that location. The
lock and accompanying tag informs other workers that
the first worker intentionally turned the power off in
order to work on the machine and consequently the other
workers should not reactivate the machine without first
checking with the original worker. There is no evidence
in the record that Winters received any training or in-
struction from Fru-Con. Although Fru-Con employees
were present at the Centralia plant when the accident
occurred in July 1999, there is no indication in the record
that Winters had any contact with Fru-Con employees
during the course of his employment.
  Winters began working on a cake line as a finish mix
operator in Spring 1999. As a finish mix operator, Winters
was involved in the packaging of cake mix into boxes.
Winters used lock out / tag out procedures when perform-
ing maintenance as a finish mix operator. He worked as a
finish mix operator for five or six weeks and was then
transferred to a control room operator position. As a
control room operator, Winters was responsible for work-
ing on a computer that controlled the movement of cake
mix ingredients along the cake line.
4                                            No. 05-3911

  During the initial months of operation, the cake mix
would often clump and block the flow of ingredients in the
tubes on the cake lines. Control room operators, including
Winters, were responsible for unclogging the clumps of
cake mix in the tubes. Control room operators attempted
to break up clogs by banging on the outside of the tubes
or alternatively disassembling part of the cake line
and reaching into the tubes. Winters testified that
the practice of control room operators was not to use lock
out / tag out procedures when working to unclog the cake
line by hand. Instead, the control room operators placed
the computer program running the cake line into manual
from automatic. The control room operator would then
tell other control room operators in the control room that
they had placed the computer program in manual. Winters
stated that he followed these alternative procedures
instead of a lock out / tag out procedure because this is
what he observed the other control room operators doing
when he started working as a control room operator.
  Winters used the alternative procedure of placing the
computer on manual when the accident occurred on July 7,
1999. He disconnected one of the tubes and, through
the opening, placed his arm past the Smoot diverter
valve to reach the cake mix clot in the second tube. While
he was pulling his arm back, a Gilster coworker, unaware
that Winters was working on the cake line, placed the
computer program back to automatic. The diverter valve
closed on Winters’ hand at the wrist with sufficient force
to sever it completely. Winters was rushed to a local
hospital where doctors were able to successfully reattach
his hand but Winters’ use of his hand has been severely
limited.


    B. Procedural History
   In May 2000, Winters brought suit alleging product
liability and negligence claims against Fru-Con, Aurora,
No. 05-3911                                             5

Smoot Co. and Logical Systems. Winters was precluded
from suing Gilster directly because of workers’ compensa-
tion requirements. However, the defendants brought
Gilster into the case as a third party defendant alleging
that Gilster had been negligent in training and supervis-
ing Winters. By July 2001, all parties consented to the
jurisdiction of a magistrate judge pursuant to 28 U.S.C.
§ 636(c). The case was ultimately assigned to Magistrate
Judge Proud. The last party was added to the case in 2002
when Aurora filed a third party declaratory action against
Federal Insurance Co. Federal initially did not file a
consent to Judge Proud’s jurisdiction but did file a con-
sent in March 2006 after we raised the issue in our
November 23, 2005 order.
  Winters reached out of court settlements with Aurora,
Smoot Co. and Logical Systems but proceeded with his
negligence and product liability claims against Fru-Con.
Three years into the case in 2003, the magistrate judge
refused Winters leave to file a proposed amended com-
plaint in which he sought to add a claim for punitive
damages. The magistrate judge also barred testimony
from Winters’ two experts, Edmond Israelski and
H. Boulter Kelsey. Lacking an expert, the magistrate
judge granted Fru-Con’s motion for summary judgment
on Winters’ product liability claim. The case proceeded
to a jury trial on the negligence claim but the magistrate
judge granted Fru-Con’s motion for judgment as a matter
of law at the conclusion of Winters’ case-in-chief. The
magistrate judge also denied Winters’ motion for a new
trial. Winters’ now seeks direct review of the judgment
entered by the magistrate judge pursuant to 28 U.S.C.
§ 636(c)(3).


                    II. ANALYSIS
  Winters argues that Magistrate Judge Proud lacked
subject matter jurisdiction to proceed in the case because
6                                               No. 05-3911

Federal failed to file a timely consent. On the merits,
Winters argues that the magistrate judge erred by deny-
ing him leave to file his amended complaint, by barring
his experts and by granting Fru-Con’s motions on his
product liability and negligence claims.


    A. The Magistrate Judge’s Jurisdiction
  “Ensuring the existence of subject-matter jurisdiction is
the court’s first duty in every lawsuit.” McCready v. White,
417 F.3d 700, 702 (7th Cir. 2005) (citing Steel Co. v.
Citizens for a Better Env’t, 523 U.S. 83 (1998)). Our initial
review of the record in November 2005 revealed that
Federal had failed to file a consent to the magistrate
judge’s jurisdiction. Federal remedied this failure by fil-
ing a consent in March 2006. This is sufficient to provide
us with jurisdiction as it is clear to us that all parties,
including Winters, have always intended to consent to
proceeding before the magistrate judge pursuant to 28
U.S.C. § 636(c). Federal’s inadvertent failure to file its
consent was due to late entry into the case after the case
had been reassigned to the magistrate judge and Federal’s
after the fact consent is sufficient to manifest its consent.
See Roell v. Withrow, 538 U.S. 580, 590 (2003) (holding
that implied consent to the magistrate judge’s jurisdic-
tion can be determined by a voluntary appearance before
the magistrate judge after a party has been informed of the
need for consent and the right to refuse); King v. Ionization
Int’l, Inc., 825 F.2d 1180, 1185 (7th Cir. 1987) (noting that
after the fact consent to the magistrate judge’s jurisdiction
is permissible if it is a manifestation of the parties’ pre-
existing desire to consent to the magistrate judge).


    B. Winters’ Amended Complaint
  We reject Winters’ argument as to the magistrate judge’s
refusal to allow him to amend his complaint for punitive
No. 05-3911                                                7

damages three years into the litigation. Winters errone-
ously argues that his ability to file his proposed pleading
was limited by the Illinois pleading rule that prohibits
the pleading of punitive damages in the complaint until
he has established in discovery facts that support claimed
punitive damages. 735 ILCS COMP. STAT. 5/2-604.1.
However, the district court, as a federal court sitting in
diversity, properly applied Rule 15 of the Federal Rules
of Civil Procedure instead of the Illinois pleading rules
because the “Federal Rules of Civil Procedure apply to all
cases filed in federal court, no matter what the basis of
subject matter jurisdiction.” Hefferman v. Bass, 467 F.3d
596, 599 (7th Cir. 2006) (citing Hanna v. Plumer, 380 U.S.
460 (1965)); see, e.g., Harper v. Vigilant Ins. Co., 433 F.3d
521, 525 (7th Cir. 2005) (“As a federal court sitting in
diversity by virtue of jurisdiction pursuant to 28 U.S.C.
§ 1332, we apply state law to resolve substantive questions
and federal law to resolve procedural and evidentiary
issues.”) (internal quotations and citations omitted).
  Thus, the issue for review is whether the district court
properly denied Winters’ proposed amended complaint
pursuant to Rule 15. Rule 15 allows amendment of a
complaint after the filing of an answer upon leave of court
and leave of court shall be freely given when justice so
requires. FED. R. CIV. P. 15(a). “[A] district court may
deny leave to amend [a complaint] on the grounds of
undue delay, bad faith, dilatory motive, prejudice or
futility.” Guise v. BWM Mortgage, LLC, 377 F.3d 795, 801
(7th Cir. 2004) (citing Indiana Funeral Dirs. Ins. Trust. v.
Trustmark Ins. Corp., 347 F.3d 652, 655 (7th Cir. 2003)).
“We review a denial of a motion to amend only for an
abuse of discretion.” Perry v. First Nat’l Bank, 459 F.3d
816, 819 (7th Cir. 2006) (quoting Butts v. Aurora Health
Care, Inc., 387 F.3d 921, 925 (7th Cir. 2004)). A federal
trial judge’s decision is an abuse of discretion “only if no
reasonable person could agree with [the decision].” Butts,
8                                              No. 05-3911

387 F.3d at 925 (citing Cleveland v. Porca Co., 38 F.3d 289,
297 (7th Cir. 1994)).
  The magistrate judge’s decision was not an abuse of
discretion. Winters’ failure to bring a timely claim for
punitive damages was due to his failure to understand that
federal pleading rules controlled the issue. An amended
complaint three years into the litigation affects the defen-
dant’s discovery and trial strategy and therefore the
magistrate judge was reasonable in rejecting Winters’
proposed amendment.


    C. Barring of Experts
  Winters challenges the magistrate judge’s decision to
exclude his two experts, Israelski and Kelsey. Israelski’s
proposed testimony focused on the design of the computer
system operating the cake line that injured Winters.
Kelsey’s proposed testimony was on the Smoot valve.
  Israelski was tendered as an expert in “human factors.”
Human factors is a discipline that incorporates a study
of human behaviors, limitations and capabilities into the
design of products, systems and equipment. Winters
sought Israelski’s testimony on the design of the computer
system that operated the Smoot valve. According to
Israelski’s proposed testimony, the computer system was
not designed properly because it did not have a means of
warning the operator that a second worker had taken the
Smoot valve offline for cleaning.
  The magistrate judge rejected Israelski as an expert
witness. He determined that Israelski’s work was not
performed in accordance to the standards of intellectual
rigor required for admissibility. Thus, the proposed
testimony was “speculative and not the result of scientific
procedure. Simply put, it is not reliable.” R. 202 at 6.
No. 05-3911                                                9

  Kelsey was tendered as an expert in “forensic engineer-
ing analysis in the area of mechanical systems.” R. 203
at 2. Kelsey’s proposed opinion was that the Smoot valve
and its associated control system was defective and
unreasonably dangerous because (1) there was no manual
guard or block that could stop the valve from shifting,
(2) there was no sensor or switch that deactivated the
valve when the hose was disconnected, and (3) there
was no electrical circuit that stopped that valve from
operating when the hose was disconnected from the line.
He proposed several alternatives but he did not test the
alternatives. Additionally, Kelsey criticized relying
solely on a lock out / tag out procedure. The magistrate
judge determined that the failure to test Kelsey’s sug-
gestions doomed his proposed opinion and excluded him
from testifying.
  “The admissibility of expert testimony is governed by
Federal Rule of Evidence 702 as well as Daubert v. Merrell
Dow Pharms., Inc.” Naeem v. McKesson Drug Co., 444 F.3d
593, 607 (7th Cir. 2006) (citing 509 U.S. 579 (1993)).
“Expert testimony is admissible ‘if scientific, technical or
other specialized knowledge will assist the trier of fact
to understand the evidence or to determine a fact in
issue.’ ” Kempner Mobile Elecs., Inc. v. Sw. Bell Mobile
Sys., 428 F.3d 706, 712 (7th Cir. 2005) (citing FED. R. EVID.
702). “The district court is a ‘gate-keeper’ who determines
whether proffered expert testimony is reliable and rele-
vant before accepting a witness as an expert.” Autotech
Tech. Ltd. P’ship v. Automationdirect.com, 471 F.3d 745,
749 (7th Cir. 2006). “We review de novo whether the
district court applied the appropriate legal standard in
making its decision to admit or exclude expert testimony,
and we review for abuse of discretion the district court’s
choice of factors to include within that framework as
well as its ultimate conclusions regarding the admissi-
10                                              No. 05-3911

bility of expert testimony.” Kempner Mobile Elecs., Inc.,
428 F.3d at 712 (citing United States v. Parra, 402 F.3d
752, 758 (7th Cir. 2005)). The district court identified
and applied the appropriate legal standards therefore
satisfying the de novo element of our review. See Durkin v.
Equifax Check Servs., Inc., 406 F.3d 410, 420 (7th Cir.
2005) (citing Ammons v. Aramark Unif. Servs., Inc., 368
F.3d 809, 816 (7th Cir. 2004)).
  Turning to the second step in our review, the abuse of
discretion component, the district court rejected the
proposed expert testimony holding that it was not reli-
able because the proposed experts had failed to test
their alternative designs. One of the “purpose[s] of the
Daubert standard is to ensure that any admitted scientific
evidence is reliable; that is, well-grounded in methods
and procedures of science. The focus of the district court’s
Daubert inquiry must be solely on principles and methodol-
ogy, not on the conclusions they generate.” Chapman v.
Maytag Corp., 297 F.3d 682, 687 (7th Cir. 2002) (citing
Bourelle v. Crown Equip. Corp., 220 F.3d 532, 536 (7th Cir.
2000); Cummins v. Lyle Indus., 93 F.3d 362, 368 (7th Cir.
1996)). “Daubert offers a non-exclusive list of factors to aid
judges in determining whether [a] particular expert
opinion is grounded in reliable scientific methodology.
Among the factors articulated are: (1) whether the prof-
fered theory can be and has been tested; (2) whether the
theory has been subjected to peer review; (3) whether the
theory has been evaluated in light of potential rates of
error; and (4) whether the theory has been accepted in the
relevant scientific community.” Dhillon v. Crown Controls
Corp., 269 F.3d 865, 869 (7th Cir. 2001) (citing Daubert,
509 U.S. at 593-94).
  “In alternative design cases, we have consistently
recognized the importance of testing the alternative
design” as a factor that the district court should consider
No. 05-3911                                               11

in evaluating the reliability of the proposed expert testi-
mony. Dhillon, 269 F.3d at 870 (citing Bourelle, 220 F.3d
at 535-38; Cummins, 93 F.3d at 368). Testing an alterna-
tive design can assist a proposed expert in considering: (1)
the alternative’s compatibility with existing systems,
(2) relative efficiency of the current versus alternative
design, (3) short and long term maintenance costs for
the alternative design, (4) ability of the proposed pur-
chaser to service and maintain the alternative design,
(5) cost of installing the alternative design, and (6) change
in cost to the machine. Dhillon, 269 F.3d at 870 (citing
Cummins, 93 F.3d at 369). “Many of these considerations
are product and manufacturer specific and cannot be
reliably determined without testing” of the alternative
design. Id. Although testing an alternative design will
likely be advantageous in demonstrating that the proposed
expert’s testimony is reliable, we have not mandated
alternative design testing as “an absolute prerequisite to
the admission of expert testimony” because the Daubert
inquiry is a “flexible inquiry.” Cummins, 93 F.3d at 368-69.
There could be situations where the district court deter-
mines the proposed expert’s testimony regarding an
alternative design is reliable despite a lack of testing of
the alternative design because the expert has adhered to
the “standards of intellectual rigor that are demanded in
[his or her] professional work,” such as relying on the data
generated by other researchers, making proper personal
observations or taking other appropriate actions. Id. at 369
(citing Rosen v. Ciba-Geigy Corp., 78 F.3d 316, 318 (7th
Cir. 1996); Bammerlin v. Navistar Int’l Transp. Corp., 30
F.3d 898, 901 (7th Cir. 1994); Porter v. Whitehall Labs.,
Inc., 9 F.3d 607, 614 n.6 (7th Cir. 1993)). The appropriate-
ness of the proposed expert’s methodology is a question for
the district court in its role as a gate-keeper. “An expert
must substantiate his opinion; providing only an ultimate
conclusion with no analysis is meaningless.” Clark v.
12                                              No. 05-3911

Takata Corp., 192 F.3d 750, 757 (7th Cir. 1999) (internal
quotations omitted).
  The district court properly exercised its discretion in
finding that Winters’ proposed experts were not reliable
and therefore properly rejected their tendered expert
testimony. The proposed experts both failed to test their
alternative designs and also failed to utilize any other
method of research to compensate for their lack of alter-
native testing. Thus, their proposed opinion is based on a
belief that alteration to add a safety improvement is
appropriate and therefore there is no need to determine
the reliability of their alternatives. “Simply put, an expert
does not assist the trier of fact in determining whether
a product failed if he starts his analysis based upon
the assumption that the product failed (the very question
that he was called upon to resolve).” Id.
  Finally, Winters argues that the district court erred in
failing to reopen discovery to allow his proposed experts
to conduct testing of their alternative designs. Winters
sought to reopen discovery after the district court decision
barring his proposed experts. “We review the district
court’s decision not to reopen discovery for abuse of dis-
cretion.” Raymond v. Ameritech Corp., 442 F.3d 600, 603
n.2 (7th Cir. 2006) (citing Kalis v. Colgate-Palmolive Co.,
231 F.3d 1049, 1056 (7th Cir. 2000)). The litigation process
does not include “a dress rehearsal or practice run” for
the parties. Steen v. Myers, 486 F.3d 1017, 1022 (7th Cir.
2007) (quoting Hammel v. Eau Galle Cheese Factory, 407
F.3d 852, 859 (7th Cir. 2005)). Winters had ample time
to develop his case and conduct his testing of his alterna-
tive design during the discovery period. His inability to
produce admissible expert testimony is due to his own
actions, namely the failure of his proposed experts to test
their alternatives. The district court was not required to
give Winters a “do over” and therefore we find that the
district court did not abuse its discretion.
No. 05-3911                                              13

  D. Judgment for Fru-Con on Winters’ Tort Claims
  Winters, bringing his tort claims under Illinois law,
alleged that the conveyance system that injured him
contained dangerous conditions that were defective and not
reasonably safe. The district court granted Fru-Con’s
motion for summary judgment on Winters’ strict liability
claim due to the exclusion of Winters’ experts. The district
court granted Fru-Con’s motion for judgment as a matter
of law on Winters’ negligence claim after determining
that Fru-Con did not owe him a duty of care.
  “We review grants of summary judgment de novo.”
Lummis v. State Farm Fire & Cas. Co., 469 F.3d 1098,
1099-1100 (7th Cir. 2006) (citing Hrobowski v. Worthington
Steel Co., 358 F.3d 473, 475 (7th Cir. 2004); Rogers v. City
of Chicago, 320 F.3d 748, 752 (7th Cir. 2003)). “We may
affirm summary judgment on any basis we find in the
record.” Aviles v. Cornell Forge Co., 183 F.3d 598, 603 (7th
Cir. 1999) (citing McClendon v. Indiana Sugars, Inc., 108
F.3d 789, 796 (7th Cir. 1997)). Summary judgment is
proper “if the pleadings, depositions, answers to inter-
rogatories, and admissions on file, together with the
affidavits, if any, show that there is no genuine issue as
to any material fact and that the moving party is entitled
to a judgment as a matter of law.” FED. R. CIV. P. 56(c). In
considering a motion for summary judgment, the district
court is not required to scour the record in search of
evidence to defeat the motion; the nonmoving party must
identify with reasonable particularity the evidence upon
which the party relies. Johnson v. Cambridge Indus., Inc.,
325 F.3d 892, 898 (7th Cir. 2003). In evaluating a motion
for summary judgment, the district court’s function is
not to weigh the evidence and determine the truth of the
matter, but to determine whether there is a genuine issue
for trial. See Albiero v. City of Kankakee, 246 F.3d 927, 932
(7th Cir. 2001) (“The primary purpose of summary judg-
14                                             No. 05-3911

ment is to isolate and dispose of factually unsupported
claims.”).
   The district court properly granted summary judgment
for Fru-Con on Winters’ product liability claim because
Winters had failed to develop evidence sufficient to meet
his burden of proof at trial. Illinois applies the strict
liability doctrine as set forth in § 402A of the Second
Restatement of Torts and therefore, “strict liability is
imposed upon a seller of any product in a defective condi-
tion unreasonably dangerous to the user or consumer or
to his property.” Calles v. Scripto-Tokai Corp., 864
N.E.2d 249, 254 (Ill. 2007) (citing Suvada v. White Motor
Co., 210 N.E.2d 182, 187 (1965); RESTATEMENT (SECOND)
OF TORTS § 402A). “A manufacturer has a nondelegable
duty to produce a product that is reasonably safe for all
intended uses.” Hansen v. Baxter Healthcare Corp., 764
N.E.2d 35, 43 (Ill. 2002) (citing Doser v. Savage Mfg. &
Sales, Inc., 568 N.E.2d 814, 819 (Ill. 1990)). “A plaintiff
may demonstrate that a product is defective in design . . .
(1) by introducing evidence that the product failed to
perform as safely as an ordinary consumer would expect
when used in an intended or reasonably foreseeable
manner or (2) by introducing evidence that the product’s
design proximately caused his injury and the defendant
fails to prove that on balance the benefits of the chal-
lenged design outweigh the risk of danger inherent in
such designs.” Lamkin v. Towner, 563 N.E.2d 449, 457 (Ill.
1990). The first test is referred to as the “consumer
expectation test,” and the second test is known as the “risk
utility” or “risk benefit” test. Hensen, 764 N.E.2d at 43.
  “Under the consumer expectation test, a plaintiff must
establish what an ordinary consumer purchasing the
product would expect about the product and its safety.
This is an objective standard based on the average,
normal, or ordinary experiences of the reasonable person;
it is not dependent upon the subjective expectation of a
No. 05-3911                                                15

particular consumer or user.” Calles, 864 N.E.2d at 255.
Winters failed to develop any evidence to determine what
an ordinary consumer would expect about the cake line
and its operation. Therefore, we shall next consider the
risk utility / risk benefit test.
  “Under the risk utility test, . . . a plaintiff may prove a
design defect by presenting evidence of the availability and
feasibility of alternate designs at the time of its manufac-
ture, or that the design used did not conform with the
design standards of the industry, design guidelines
provided by an authoritative voluntary association, or
design criteria set by legislation or governmental regula-
tion.” Id. at 263-64. Winters’ primary evidence was his
proposed experts that he wanted to present in support of
an alternative design argument but this evidence was
properly excluded by the district court because of Winters’
failure to comply with Daubert and Rule 702. Thus,
Winters attempts to fall back to his only remain-
ing evidence, an alleged failure to comply with OSHA
requirements. However, Winters does not explain how
these regulations would impact any proposed alternative
design of the cake line or how this would be an improve-
ment on the design of the cake line. All that remains is
Winters’ belief that the design was defective and mere
belief without evidence in support is not sufficient to
survive summary judgment. Celotex Corp. v. Catrett, 477
U.S. 317, 324 (1986); see, e.g., Koszola v. Bd. of Educ. of the
City of Chicago, 385 F.3d 1104, 1111 (7th Cir. 2004) (citing
Johnson, 325 F.3d at 901).
  Additionally, even if Winters had provided sufficient
evidence to survive summary judgment, summary judg-
ment in favor of Fru-Con was still appropriate because, as
a matter of law, Fru-Con cannot be held strictly liabile
under § 402A. Although a literal reading of § 402A would
limit strict liability only to sellers of a product, Illinois
applies strict liability to “all persons in the distributive
16                                               No. 05-3911

chain of a defective product.” Prompt Air, Inc. v. Firewall
Forward, Inc., 707 N.E.2d 235, 238 (Ill. App. Ct. 1999).
“[T]he major purpose of strict liability is to place the
loss caused by a defective product on those who create the
risk and reap the profit by placing such a product in the
stream of commerce, regardless of whether the defect
resulted from any negligence of the manufacturer.” Carollo
v. Al Warren Oil Co., Inc., 820 N.E.2d 994, 1001 (Ill. App.
Ct. 2004) (citing Trans States Airlines v. Pratt & Whitney
Canada, Inc., 682 N.E.2d 45, 53 (Ill. 1997); Liberty Mut.
Ins. Co. v. Williams Mach. & Tool Co., 338 N.E.2d 857, 860
(Ill. 1975)).
  Fru-Con was not involved in placing the cake line into
the stream of commerce but installed, without alteration,
the cake line that had been transported to the Illinois
factory from Tennessee. “[T]he policy reasons which justify
extending the doctrine of strict liability to parties such
as retailers or distributors are [not] applicable to product
installers” when the installer does not participate in
placing the product into the stream of commerce. Hinojasa
v. Automatic Elevator Co., 416 N.E.2d 45, 48 (Ill. App. Ct.
1980). Strict liability is not applied to the installer because
(1) they are not involved in the sale of the product, (2) they
did not receive any profit from the placing of the defective
product in the stream of commerce, and (3) the installer
lacks the purchasing power of a retailer or distributor
and therefore cannot exert pressure on the manufacturer
to enhance product safety. Hinojasa, 416 N.E.2d at 48
(citing Peterson v. Lou Bachrodt Chevrolet Co., 329 N.E.2d
785, 787 (Ill. 1975)). “The critical question is not whether
the defendant’s principal function was to render a service.
Rather, the question is whether the defendant played an
integral role in the distribution of a defective product.”
Prompt Air, Inc., 707 N.E.2d at 239. As Fru-Con was not
involved in the distribution of the cake line or the Smoot
valve, it cannot be held strictly liable. Additionally, any
No. 05-3911                                             17

alterations done to the cake lines were done by Logical
Systems, a defendant with whom Winters has already
settled.
  As to the district court’s entry of judgment as a matter
of law on Winters’ negligence claim, “we review de novo the
grant of a Rule 50(a) judgment as a matter of law.” Murray
v. Chicago Transit Auth., 252 F.3d 880, 886 (7th Cir. 2001)
(citing Massey v. Blue Cross-Blue Shield of Illinois, 226
F.3d 922, 924 (7th Cir. 2000)). “Under Rule 50, a court
should grant judgment as a matter of law when a party
has been fully heard on an issue and there is no legally
sufficient evidentiary basis for a reasonable jury to find
for that party on that issue.” Alexander v. Mount Sinai
Hosp. Med. Ctr., 484 F.3d 889, 902 (7th Cir. 2007) (citing
Murray, 252 F.3d at 886). “The standard governing a
Rule 50 motion mirrors that employed in evaluating a
summary judgment motion” except that the two motions
are made at different times during the proceedings before
the district court. Appelbaum v. Milwaukee Metro. Sewer-
age Dist., 340 F.3d 573, 578 (7th Cir. 2003) (citing Reeves
v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 150
(2000)).
   “A product liability action asserting a claim based on
negligence . . . falls within the framework of common law
negligence.” Calles, 864 N.E.2d at 270 (citing Flaugher v.
Sears, Roebuck & Co., 378 N.E.2d 337, 340 (1978)). “[T]o
state a claim for negligence, the plaintiff must establish
that the defendant owed the plaintiff a duty of care, that
the defendant breached that duty, and that the plaintiff
was injured as a proximate result of such breach.” Gilley
v. Kiddel, 865 N.E.2d 262, 274-75 (Ill. App. Ct. 2007)
(citing Milz v. M.J. Meadows, Inc., 599 N.E.2d 1290, 1293
(Ill. App. Ct. 1992)). Winters argues that Fru-Con had a
duty to ensure his safety under Fru-Con’s contract that
governed Fru-Con’s work at the Illinois plant. Fru-Con was
18                                              No. 05-3911

required to ensure worker safety during its work at the
plant. “The question of whether a duty exists . . . is
determined by the terms of the contract, and the duty,
if any, will not extend beyond that described in the con-
tract.” Putman v. Village of Bensenville, Illinois, 786
N.E.2d 203, 208 (Ill. App. Ct. 2003) (citation omitted). Fru-
Con’s contract did not establish a duty between Fru-Con
and Winters. The scope of Fru-Con’s work was to install
the cake and frosting lines. Fru-Con was responsible for
safety during its work. However, Winters was not injured
by the installation work but instead by the operation of the
cake line after the installation was finished. The injury
was outside the installation process and therefore outside
of Fru-Con’s duty as established by its contract. Fru-Con
was responsible only for the installation of the cake and
frosting lines. Its workers were at the plant but did not
supervise or otherwise interact with Winters in a profes-
sional capacity. Winters has already reached settlements
with Aurora, Smoot Co. and Logical Systems but he is
not entitled to anything from Fru-Con.


                   III. CONCLUSION
  The judgment of the district court is AFFIRMED.

A true Copy:
      Teste:

                        ________________________________
                        Clerk of the United States Court of
                          Appeals for the Seventh Circuit




                   USCA-02-C-0072—8-22-07
