element of his case. Specifically, defendant claims that plaintiff has failed to come forth with any direct or circumstantial evidence that Kiswire manufactured the wire rope that failed.
Based upon a review of the record before the Court, plaintiff cannot produce any evidence (direct or circumstantial) of an essential element of his case, i.e., that Kiswire was the manufacturer of the wire rope that failed. Plaintiff first uses deductive reasoning that as between Graham Wire Rope (Graham, Texas) and Gulf Coast Wire (Oklahoma City), Mr. Hawkins must have bought the wire rope from Gulf Coast Wire. Plaintiff then reaches the conclusion that of all the suppliers to Gulf Coast Wire, Kiswire was the "most likely source." Plaintiff bases this latter conclusion on the facts that Gulf Coast Wire purchased "a lot" of rope from Kiswire, "Kiswire was the 'dominant' manufacturer of wire rope sold by Gulf Coast," and "When Gulf Coast went bankrupt, it owed Kiswire $ 320,872.89, and Kiswire was one of the company's biggest creditors." Although Gulf Coast Wire had another large creditor, Kulkoni, plaintiff says that Gulf Coast did "quite a bit more business with Kiswire than with Kulkoni," that "Gulf Coast preferred to do business with Kiswire rather than with Kulkoni," and that Kulkoni has established that none of the 1/2" wire rope it supplied to Gulf Coast Wire in the relevant time period was used on the rig.
Plaintiff's evidence against Kiswire is flawed in several respects. First, contrary to plaintiff's assertions, Kulkoni has not established that none of the half-inch wire rope it supplied to Gulf Coast Wire in the relevant time period was used on the rig. Plaintiff supports this proposition by citing pages 13 and 14 of the deposition of Mr. Becker. A review of these pages, however, does not lead the Court to the same conclusion.
Mr. Becker has been the President of Kulkoni since 1965 (Doc. 110, Exh. J, p.7). From 1980 to 1984, Kulkoni did business with Gulf Coast Wire (Doc. 110, Exh. J, p.8). When Gulf Coast Wire filed bankruptcy, Kulkoni filed a claim against Gulf Coast Wire in bankruptcy court for approximately $ 400,000 (Doc. 110, Exh. J, p.9). In the early 1980s, two different manufacturers sold 1/2" wire rope to Kulkoni: 1) Boo-Koo Steel & Wire Company, (Busan, Korea), and 2) Nam Sun (Chang Won, Korea) (Doc. 110, Exh. J, pp.13-14). Kulkoni sold one reel of 1/2" wire rope to Gulf Coast Wire on December 23, 1982 and another on January 4, 1983 (Doc. 110, Exh. J, pp.18-19). One reel contains approximately 2,500 feet of wire rope (Doc. 110, Exh. J, pp.15-16). There were also shipments of 1/2" wire rope on October 19, 1982, November 8, 1982, November 19, 1982, December 8, 1982, and January 13, 18, and 25, 1983 (Doc. 110, Exh. J, p.31).
The record also shows that in addition to Kiswire and Kulkoni, Gulf Coast Wire bought wire rope from numerous other sources. Mr. Sullivan, the owner of Gulf Coast Wire, testified that he bought from about five or six foreign sources and half a dozen local sources (Doc. 110, Exh. K, p.9). Mr. Sullivan testified that if someone was interested in buying 70 feet of wire rope, there would be a "jillion places" between Graham, Texas, and Oklahoma City which could have supplied this amount (Doc. 110, Exh. K, pp.70-71).
Based on the above, plaintiff has not and cannot prove the essential element that Kiswire manufactured the wire rope in question. Although plaintiff offers circumstantial evidence that suggests this possibility, "a fact is not established from circumstantial evidence unless the circumstances or events are so related to each other as to make the conclusion the only probable, not possible, one that can be drawn from them." York v. Lunkes, 189 Ill. App. 3d 689, 545 N.E.2d 478, 480 (Ill.App. 1 Dist. 1989, 136 Ill. Dec. 954) (citing Mateika v. LaSalle Thermogas Co., 94 Ill. App. 3d 506, 418 N.E.2d 503, 49 Ill. Dec. 649 (1981)). Here, plaintiff admits Gulf Coast's records prior to 1984 have been destroyed (Doc. 17, p.8). Based on what has been presented to the Court, plaintiff can show, at best, only that Kiswire was a "possible" but not a "probable" manufacturer of the wire rope that failed.
Based on the foregoing, defendant has shown that plaintiff cannot prove the identity of the manufacturer which is a necessary element of his case. Consequently, defendant's motion for summary judgment is GRANTED.6
Defendant Kiswire's Motion to Quash Depositions and For Protective Order (Doc. 100) is GRANTED. Plaintiff's Motion to Compel (Doc. 104) is DENIED. Defendant Kiswire's Motion to Strike Testimony of Donald Pellow (Doc. 118) is GRANTED. Plaintiff's Motion for Leave to File Response to Kiswire's Motion to Strike Pellow Testimony (Doc. 128) is GRANTED. Plaintiff's Motion to Strike Portions of Kiswire's Reply in Support of Motion for Summary Judgment (Doc. 129) is MOOT. Defendant Kiswire's Motion for Summary Judgment (Doc. 109) is GRANTED. Plaintiff's claims against defendant Kiswire are DISMISSED WITH PREJUDICE and this action is DISMISSED. The Clerk of the Court is DIRECTED to enter Judgment accordingly.
IT IS SO ORDERED.
James L. Foreman