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

No. 01-4061
VANESSA G. CHAPMAN, as Special
Personal Representative of the ESTATE
OF KYLE E. CHAPMAN, JR., deceased,

                                               Plaintiff-Appellee,
                                v.

MAYTAG CORPORATION,
                                           Defendant-Appellant.
                         ____________
           Appeal from the United States District Court
    for the Southern District of Indiana, Indianapolis Division.
       No. 99 C 39—Kennard P. Foster, Magistrate Judge.
                         ____________
      ARGUED MAY 21, 2002—DECIDED JULY 29, 2002
                    ____________


 Before BAUER, COFFEY, and RIPPLE, Circuit Judges.
  BAUER, Circuit Judge. Vanessa Chapman filed a wrong-
ful death suit against Maytag Corporation on behalf of
the estate of her late husband, Kyle Chapman. Mr. Chap-
man was electrocuted when he touched a metal surface
energized by a current emanating from a Maytag range
in the Chapman’s home. The case was tried to a jury, which
returned a verdict and substantial damages in favor of
the Chapmans. Maytag appeals the verdict arguing, among
other things, that the district court erroneously admit-
ted the testimony of the Chapman’s expert without satisfy-
ing the mandates of Rule 702 and the Daubert test.
2                                                No. 01-4061

  We agree with Maytag that the district court failed
to properly apply the analytical principles set forth in
Daubert and as a result, we reverse the decision of the
district court and remand the case for a new trial.


                     BACKGROUND
  On January 2, 1997, Kyle and Vanessa Chapman pur-
chased a Magic Chef range manufactured by Maytag Cor-
poration. With the range, the Chapmans received an Own-
er’s Guide, a Gas Installation Manual and a warning label,
affixed to the range’s power cord. All three documents spe-
cifically advised the consumer that the range must be
plugged into a properly grounded three-hole receptacle
in compliance with local rules and the National Electri-
cal Code, and that failure to do so may result in shock haz-
ard. Nevertheless, Mr. Chapman plugged the range into
a kitchen outlet that he previously installed himself as
part of some remodeling to their home. This outlet had a
three-hole, grounding type receptacle but Mr. Chapman
did not install it correctly: he failed to install a grounding
wire and, contrary to the explicit Maytag warnings, the
outlet was not grounded.
  The Maytag range was manufactured in 1996 at May-
tag’s Magic Chef factory in Cleveland, Tennessee. The par-
ties do not dispute that the range was defective when it
left the Maytag factory. When it was assembled, a wire
branching off the power cord that is designed and intended
to be enclosed within a metal housing on the rear of the
unit instead became pinched between the metal frame
of the range and the back cover plate that covered the
electrical wiring. Over time, the insulation on the pinched
wire wore down and increasing amounts of electrical cur-
rent ran into the stove housing, on to the gas line, into
the wall, and eventually to the heating ducts.
  On several occasions in late July and early August of
1998, the Chapmans experienced electrical shocks from cur-
No. 01-4061                                               3

rents in running water in their home. Then, on August 3,
Mr. Chapman sustained a severe shock from touching the
gas meter while outside painting. On August 5, Mr. Chap-
man was in the crawl space under the home when he came
in contact with the energized metal surface of a heat-
ing duct and was fatally electrocuted. It was ultimately
determined that the Maytag range was the source of the
electrical current.
  Mrs. Chapman filed a wrongful death suit against May-
tag on behalf of her husband’s estate. The suit alleged that
the Maytag range was defective and that the defect was
the cause of Mr. Chapman’s death. It is undisputed that
over time, the insulation covering the pinched wire had
broken down and caused a short circuit, allowing electric-
ity to flow from the pinched wire and ultimately to the
ductwork. The parties disagree on the nature of the short
circuit. Maytag argues that the defect in the range was
not the source of the accident and that Mr. Chapman’s
death could have been avoided had he plugged the range
into a properly grounded outlet, as directed. Mrs. Chapman
insists that the accident would have occurred regardless
of whether or not the outlet was grounded.
   On January 13, 2000, Maytag moved for summary
judgment, proffering the affidavit of its expert, Dr. Andrew
Neuhalfen, who holds a Ph.D. in Materials Engineering
and a B.S. in Electrical Engineering. Dr. Neuhalfen tes-
tified that prior to Mr. Chapman’s accident, there was a
complete, instantaneous breakdown of the insulation cov-
ering the pinched wire. Had the outlet been properly
grounded, the current flowing into the frame of the range
would have been sufficient to trip the circuit breaker in-
stantaneously, thus terminating the electric current to the
outlet to which the stove was connected. According to Dr.
Neuhalfen, this would have happened some time prior to
the time that Mr. Chapman came into contact with the
metal ductwork in the crawl space. Dr. Neuhalfen, there-
4                                                No. 01-4061

fore, attributed the circuit breaker’s failure to trip to the
undisputed fact that the outlet was not grounded. He
concluded the accident would have been prevented had the
outlet been properly grounded. Based on this expert tes-
timony, Maytag argued that its range was not defective
as a matter of law because it was accompanied by ade-
quate warnings, which, if followed, would have rendered
the product safe despite the presence of the pinched wire.
  In response to Maytag’s summary judgment motion, Mrs.
Chapman proffered an affidavit of her own expert, James
Petry, who holds an undergraduate degree in Mechanical
Engineering. Petry put forth an alternative theory as to
why the circuit breaker failed to trip at the time of the
accident: a “resistive short” theory; that is, the short cir-
cuit created by the pinched wire was a resistive short,
rather than a direct short. Petry opined that vibrations
in the floor of the Chapman’s kitchen caused the insula-
tion covering the pinched wire to wear through and as
a result, current escaped from the circuit and passed
through the insulation, into the range chassis, then through
the gas line to the furnace and eventually to the heat-
ing ducts. Petry stated that this leaked current eventu-
ally became high enough to electrocute Mr. Chapman, but
was not high enough to trip the circuit breaker in the
electrical panel of the house. Based on this “resistive short”
theory, Petry asserted that the accident would have oc-
curred regardless of whether the outlet was properly
grounded. Petry represented to the court that he was
“currently designing a testing procedure which when com-
pleted will conclusively prove this theory to be true.”
  Maytag filed a reply and a motion in limine to bar Petry’s
testimony as an expert, arguing that Mrs. Chapman failed
to satisfy the requirements for expert testimony pursu-
ant to Rule 702 and the Daubert standard. The court de-
nied Maytag’s summary judgment motion, as well as
its motion in limine. However, the court did find that
No. 01-4061                                                 5

Petry “failed to specify the details supporting his opinion
that Mr. Chapman would have been electrocuted,” regard-
less of whether the outlet was properly grounded. More-
over, the court stated that the lack of any scientific testing
presented a “serious problem for the status of Petry’s tes-
timony as expert opinion.” Nevertheless, the court held
that Maytag did not adequately demonstrate that Petry’s
testimony did not qualify as expert testimony.
  At trial, Maytag renewed its objection to Petry’s testi-
mony as an expert, but the objection was overruled. After
the jury returned a verdict in favor of the Chapmans,
Maytag moved for a new trial, again arguing that Petry’s
“resistive short” theory should have been excluded pursu-
ant to Rule 702 and the Daubert standard. Maytag also
argued that the trial court’s rulings in Pretrial Order No. 2
were erroneous. The district court denied Maytag’s motion
and this appeal followed.


                        ANALYSIS
A. Expert Testimony
  Maytag first argues that the district court erroneously
admitted Petry’s testimony because none of the requisite
reliability criteria for the admission of scientific expert
testimony was satisfied. Matters relating to the admissi-
bility of scientific expert testimony are governed by Fed-
eral Rule of Evidence 702 and Daubert v. Merrell Dow
Pharmaceuticals, Inc., 509 U.S. 579 (1993). We first un-
dertake a de novo review of whether the district court
properly followed the analytical framework established
in Daubert. Bradley v. Brown, 42 F.3d 434, 436-37 (7th
Cir. 1994). Provided the district court adhered to Daubert’s
parameters, we will disturb the district court’s findings
only if they are manifestly erroneous. Id.
  Under Daubert, the district court is to perform a gate-
keeping function and conduct a two-step analysis be-
6                                               No. 01-4061

fore admitting expert scientific testimony under Rule 702.
First, the court must determine whether the expert’s tes-
timony reflects scientific knowledge; that is, the court must
make “a preliminary assessment of whether the reason-
ing or methodology underlying the testimony is scientifi-
cally valid.” Daubert, 509 U.S. at 592-93. This requires the
court to consider whether the testimony has been sub-
jected to the scientific method, ruling out any subjective
belief or unsupported speculation. Porter v. Whitehall Labs.
Inc., 9 F.3d 607, 614 (7th Cir. 1993). The second part of
the Daubert analysis requires the district court to deter-
mine “whether the evidence or testimony assists the trier
of fact in understanding the evidence or in determining
a fact in issue.” Id. at 616. In other words, “the suggested
scientific testimony must ‘fit’ the issue to which the expert
is testifying.” Id.; see also O’Conner v. Commonwealth
Edison Co., 13 F.3d 1090, 1106 (7th Cir. 1994).
   Maytag contends that Petry’s testimony did not meet
the first prong of the Daubert test. Petry concluded that
the insulation enclosing the pinched wire eventually be-
came compromised, allowing a fatal amount of electrical
current to “leak through” the insulation of a 120 volt wire
without tripping a 20-amp circuit breaker. He further
hypothesized that this leakage occurred for weeks prior
to the accident, without completely destroying the insula-
tion or causing a direct short. Consequently, according
to Petry, the grounding of the receptacle would not have
prevented the electrocution. In response, Maytag argued
that Petry was not qualified to offer such an opinion about
electricity because: he does not have sufficient knowledge
or experience in the field, he has no graduate training
in electrical engineering, he does not attend education
classes or seminars regarding electrical engineering, he
has never published or lectured in the field of electrical
science or engineering, and he has never previously tes-
tified as an expert on electrical issues. Maytag further ar-
No. 01-4061                                                7

gues that Petry never offered any study or writing to
back up his theory and more specifically, he could not sub-
stantiate his opinion that it is even possible for a fatal
amount of electrical current to “leak through” the insula-
tion to an uninsulated surface without tripping the cir-
cuit breaker. Maytag asserts that Petry could not even
show that the scientific community recognizes the con-
cept of a “resistive short” or the principles on which this
purported phenomenon is based.
   We agree with Maytag that the district court failed
to properly assess whether Petry’s theory is scientifically
valid. The purpose of the Daubert standard is to ensure
that any admitted scientific evidence is reliable; that is,
well-grounded in methods and procedures of science.
Bourelle v. Crown Equip. Corp., 220 F.3d 532, 536 (7th
Cir. 2000). The focus of the district court’s Daubert inquiry
must be solely on principles and methodology, not on the
conclusions they generate. Cummins v. Lyle Indus., 93 F.3d
362, 368 (7th Cir. 1996). Daubert sets forth a nonexclusive
list of factors or guideposts that a court should consider
for this analysis: (1) whether the theory can be and has
been verified by the scientific method through testing; (2)
whether the theory has been subjected to peer review; (3)
the known or potential rate of error; and (4) the general
acceptance of the theory in the scientific community. Id.
It is incumbent upon the trial court to carefully consider
these factors before admitting any expert scientific evi-
dence. The Daubert test is a flexible one and there is
no requirement that an expert’s testimony satisfy each of
the listed factors. United States v. Vitek Supply Corp., 144
F.3d 476, 485 (7th Cir. 1998). However, the record in
this case reveals that the district court conducted virtually
no Daubert analysis of Petry’s qualifications in light of
these factors.
  A very significant Daubert factor is whether the prof-
fered scientific theory has been subjected to the scientific
8                                                No. 01-4061

method. Bradley, 42 F.3d at 438. It is undisputed that
Petry did not conduct any scientific tests or experiments
in order to arrive at his conclusions. Petry never pro-
duced any studies, tests or experiments to justify or ver-
ify his conclusions, despite his representations to the
court that such test results would be forthcoming. In our
opinion, the absence of any testing indicates that Petry’s
proffered opinions cannot fairly be characterized as scien-
tific knowledge. Personal observation is not a substitute
for scientific methodology and is insufficient to satisfy
Daubert’s most significant guidepost. O’Conner, 13 F.3d
at 1107 (holding that a physician who relied only on per-
sonal observation without any personal study or experi-
ment to justify his conclusions did not meet the Daubert
standard). Petry’s opinions amount to nothing more than
unverified statements unsupported by scientific method-
ology. Accordingly, the district court erred when it did not
exclude Petry’s testimony.
   Further, Petry’s testimony failed to satisfy any of the
other Daubert guideposts for reliability. Petry presented
no proof that his theory is generally accepted in the scien-
tific community. Cummins, 93 F.3d at 369 (noting that
Daubert suggests the review of experimental, statistical,
or other scientific data generated by others in the field).
Instead, his theory is novel and unsupported by any arti-
cle, text, study, scientific literature or scientific data pro-
duced by others in his field. Id. (excluding an expert’s
scientific opinion where expert failed to “read any studies,
surveys or analyses” in support of his theory). Addition-
ally, by his own admission, Petry has not published any
writings or studies concerning his “resistive short” theory.
Unsubstantiated testimony, such as this, does not ensure
that “the experts’s opinion has a reliable basis in knowl-
edge and experience of his discipline.” Deimer v. Cincinnati
Sub-Zero Prods, Inc., 58 F.3d 341, 345 (7th Cir. 1995).
The Daubert standard and Rule 702 are designed to en-
No. 01-4061                                                 9

sure that, when expert witnesses testify in court, they
adhere to the same standards of intellectual rigor that
are demanded in their professional work. Cummins, 93
F.3d at 369. Petry’s testimony simply does not satisfy this
standard of reliability.
  Petry’s “resistive short” theory was relevant to Maytag’s
contention that the electrocution would not have occurred
if the outlet was grounded, and therefore, to the ulti-
mate issue of the parties’ comparative faults. The jury
returned only a general verdict, so it cannot be determined
whether the jury relied on Petry’s testimony in apportion-
ing fault. Because we find that Petry’s testimony was
improperly admitted, a new trial is required.


B. Pretrial Order
  Maytag also argues that the district court’s rulings in
Pretrial Order No. 2 were erroneous. The pretrial ruling
states that: (1) adequate warnings cannot render a prod-
uct with a manufacturing defect non-defective under In-
diana law, even if compliance with the warnings would
have rendered the product safe; (2) misuse is not a complete
defense to a strict liability claim, but rather a factor going
to the issue of comparative fault under section 34-20-8-1
of the Indiana Code; and (3) even if misuse is a complete
defense, the failure to follow the manufacturer’s instruc-
tions does not constitute misuse as a matter of law. May-
tag argues that these rulings do not correctly apply Indi-
ana law on these issues and as a result, the district court
improperly refused to allow Maytag to “assert, prove or
argue that its warnings or Mr. Chapman’s failure to com-
ply therewith rendered the stove non-defective or consti-
tuted misuse.” Generally, we review a decision in a pretrial
order to admit or bar certain evidence for an abuse of dis-
cretion. Hotaling v. Chubb Sovereign Life Ins. Co., 241 F.3d
572, 578 (7th Cir. 2001). In this case, however, the district
10                                               No. 01-4061

court first made determinations regarding Indiana law;
such determinations of law are reviewed de novo. Donovan
v. Robbins, 752 F.2d 1170, 1178 (7th Cir. 1985) (“Even when
the standard is abuse of discretion, review for errors of
law is plenary”).
  We find that the district court’s pretrial order is not
contrary to Indiana law. First, Maytag’s warnings have
no bearing on the defective condition of the range. It is
undisputed that Maytag’s range was manufactured with a
defect. We believe that the district court correctly deter-
mined that “adequate warnings will not render a prod-
uct with a manufacturing defect non-defective,” regard-
less of whether compliance with the warnings would
have rendered the product safe. Although Maytag pro-
vided numerous warnings with which Mr. Chapman failed
to comply, “warnings cannot make a dangerous product
safe.” Marshall v. Clark Equip. Co., 680 N.E.2d 1102,
1105 (Ind. App. 1997). Accordingly, it was well within the
discretion of the district court to hold that warnings will
save a product from being defective only when a product
is without manufacturing defects. See, e.g., Glover v. BIC
Corp., 6 F.3d 1318, 1323 (9th Cir. 1993) (holding that “[a]l-
though an adequate warning will prevent the reliance on
a theory of strict liability in a failure to warn defect case,
such a warning will not make safe a product with a manu-
facturing defect”).
  Second, the district court did not err when it determined
that the defense of misuse is not a complete defense,
but instead is an element of comparative fault. The
court’s order cites the amendment to the Indiana prod-
ucts liability statute, which states: “The fault of the per-
son suffering the physical harm . . . shall be compared by
the trier of fact in accordance with [sections of the com-
parative fault act].” The Indiana General Assembly defined
“fault” as “an act of omission that is negligent, willful, wan-
ton, reckless or intentional toward the person or prop-
erty of others.” I.C. § 34-20-8-1. The district court deter-
No. 01-4061                                              11

mined that any “misuse” falls within the scope of the def-
inition of “fault.” Accordingly, the court concluded that
since a jury is directed to compare all “fault” in a case,
it was the intent of the legislature that “misuse” be a
part of the comparative fault analysis, rather than pro-
viding a defendant with a complete defense. We find that
this interpretation of Indiana law is not an abuse of dis-
cretion.
  Finally, Maytag challenges the district court’s determina-
tion that Mr. Chapman’s failure to heed the warnings is
not “misuse” under Indiana law. In support of its position,
Maytag cites only Indiana cases in which the defendant
was injured by a defect-free product. We agree with the
district court that the Chapmans’ case is extraordinary and,
therefore, distinguishable, based on the undisputed fact
that the Maytag range was defective. The court reasoned
that “an Indiana court would interpret the statute and
make the policy decision to not allow Maytag to assert
the defense of misuse on the basis of Mr. Chapman’s fail-
ure to comply with its warnings.” Again, we find that
this conclusion was within the sound discretion of the
district court.


                     CONCLUSION
 For the foregoing reasons, we REVERSE and REMAND this
matter to the district court for a new trial.

A true Copy:
      Teste:

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


                   USCA-97-C-006—7-29-02
