The opinion of the court was delivered by: Michael P. McCUSKEY Chief U.S. District Judge
Thursday, 13 October, 2011 02:34:11 PM
Clerk, U.S. District Court, ILCD
This case is before the court for ruling on the Motion to Dismiss (#52) and the Motion for Summary Judgment (#36) filed by the Defendant, Ford Motor Company ("Ford"). Following a careful and thorough review of all the motions and supporting documents filed by the parties, this court rules as follows: (1) Defendant's Motion to Dismiss (#52) is GRANTED; and (2) Defendant's Motion for Summary Judgment (#36) is GRANTED.
On October 21, 2003, the Plaintiff, Dr. Dana Gray, and his wife, Tami Gray ("Tami"), bought their son, J.T. Gray ("J.T."), a previously owned 2001 Ford Explorer Sport Trac ("Explorer") for his sixteenth birthday. Around 3:00am on June 26, 2005, Tami awoke to the smell of smoke. She looked out her window and saw flames shooting out of the front of J.T.'s Explorer, which was parked in the driveway. She quickly woke Dr. Gray and J.T., exited the house, and called 911. After the family had safely exited the home, the flames from the front of the Explorer spread to the garage. Although the firefighters were able to control the fire, the fire caused extensive damage to the house and the lawn. In particular, the fire caused the ceiling of the garage to collapse, which destroyed old china and silver, children's clothing, old dolls, toys, sports equipment, and picture albums which had all been stored in the attic. Additionally, the fire (in combination with the later re-construction efforts) destroyed much of Tami's award winning garden. Thankfully, no member of the Gray family suffered any physical injuries as a result of the fire.
At the time of the fire, the Plaintiff's home and automobiles were insured by Cincinnati Insurance Company ("Cincinnati"), under policies providing Plaintiff with over $400,000 in coverage. Plaintiff, after the fire, filed a claim and received a payment totaling $183,425 covering a variety of property damage suffered by the Plaintiff. This reimbursement covered losses suffered by the Plaintiff including the actual structural damage to the home and garage; loss of the Explorer; family heirlooms, including two or three sets of china, children's clothing, dolls, toys, sports equipment and pictures; and some of the landscaping damage suffered.
On September 15, 2005, Plaintiff filed a complaint against Defendant in the Circuit Court of the Sixth Judicial Circuit, Champaign, Illinois. On October 19, 2005, Defendant removed the case to this court on the basis of 28 U.S.C. §§ 1332 and 1441. Thereafter, the case was transferred to the Eastern District of Michigan pursuant to a Judicial Panel on Multidistrict Litigation Transfer Order. In June 2006, the transferee court issued Case Management Order No. 1, which designated Plaintiff's attorney as co-lead counsel for the co-plaintiffs, who were ordered to and did file a Master Amended Complaint, incorporating the claims made in each individual case. In January 2009, by stipulation of the parties, co-plaintiffs were given leave to file the Fourth Amended Master Complaint, in which only common law negligence and strict products liability claims were advanced. At the conclusion of the Multidistrict Litigation, the District Court for the Eastern District of Michigan issued a Suggestion of Remand Order, finding that "the only claims to be tried . . . [on] remand are claims asserting common law negligence and strict products liability arising under state law." Pursuant to the Suggestion of Remand and the Conditional Remand Order, the stay was lifted and Plaintiff's case was reopened in this court on September 9, 2010.
On December 1, 2010, Plaintiff filed his Amended Complaint (#21) against Defendant, alleging: (1) a strict product liability claim; and (2) an Illinois Consumer Fraud Act claim. In regards to damages, the Plaintiff sought to recover damages for emotional distress, the loss of personal property in excess of that already paid by his insurer, and lost income.*fn2 On December 10, 2010, Plaintiff filed a Motion for Leave to File an Amended Complaint (#22), which was denied by this court. On March 16, 2011, Defendant filed a Motion to Dismiss Count II of Plaintiff's Amended Complaint (#28). On April 4, 2011, Plaintiff filed a Response (#30) to Defendant's Motion to Dismiss Count II, in which the Plaintiff conceded that Count II was barred by the multidistrict litigation and also renewed his petition for leave to file an Amended Complaint. On July 18, 2011, this court entered an Order (#48) granting Defendant's Motion to Dismiss Count II of Plaintiff's Amended Complaint (#28) and granting Plaintiff's Renewed Petition for Leave to File Amended Complaint Asserting Negligence (#30). In the Order, this court expressly stated the following: "Plaintiff is instructed to comply with Judge Friedman's order in his Suggestion of Remand. Plaintiff may only bring claims for common law negligence and strict products liability arising under state law."
On June 15, 2011, Defendant filed a Motion for Summary Judgment (#36) and attached supporting exhibits. Defendant argued that it is entitled to summary judgment because: (1) Plaintiff failed to offer admissible expert testimony demonstrating that the speed control deactivation switch was defective; (2) Plaintiff failed to offer admissible expert testimony establishing that the speed control deactivation switch was the proximate cause of the fire; and (3) Plaintiff has not identified any recoverable damages from the fire.
On July 11, 2011, Plaintiff filed a Response to the Motion for Summary Judgment (#39)
and attached supporting exhibits. Plaintiff argued that summary judgment is not appropriate because: (1) Dr. Charles Pendleton ("Dr. Pendleton") is qualified to render an opinion to a reasonable degree of scientific certainty that the speed control deactivation switch was defective; (2) Dr. Pendleton and John Knapp ("Knapp") are qualified to render opinions to a reasonable degree of scientific certainty regarding the origin and cause of the vehicle fire; and (3) there is a genuine issue of material fact regarding recoverable damages. The first expert, Knapp, is a fire investigator with seventeen years of experience investigating the origins of vehicle fires. Knapp testified that the fire originated in the engine compartment of the Explorer, on the driver's side forward of the firewall. The second expert, Dr. Pendleton, teaches high school and college level courses on the theory and servicing of automotive systems. In addition, Dr. Pendleton has conducted 300 investigations of automotive failures, about ninety percent of which resulted in fires. Utilizing Knapp's determination of the origin of the fire, Dr. Pendleton testified in his deposition that the fire was caused by an electrical circuit igniting the brake fluid contained within the cruise control disconnect switch. Dr. Pendleton also provided an opinion in his deposition that the cruise control disconnect switch was defective.
On July 26, 2011, after the parties' filings in regards to the Defendant's Motion for Summary Judgment (#36), Plaintiff filed a Second Amended Complaint (#50), alleging: (1) a strict product liability claim; (2) a negligence claim; (3) a willful and wanton negligence claim; and (4) a negligence claim based on res ipsa loquitur. Under Local Rule 7.1(E), as a result of the filing of the Second Amended Complaint, all pending motions became moot. However, on August 9, 2011, Defendant filed its Answer (#51), in which Defendant revived its Motion for Summary Judgment (#36). Additionally, on August 9, 2011, Defendant filed a Motion to Dismiss (#52) Counts 3 and 4 of Plaintiff's Second Amended Complaint. On August 26, 2011, Plaintiff filed a Response (#53) to the Defendant's Motion to Dismiss Counts 3 and 4. On September 22, 2011, this court entered the following Text Order to ensure that the parties were aware of the procedural impact of the Second Amended Complaint on the Defendant's Motion for Summary Judgment:
TEXT ORDER notifying parties that under Local Rule 7.1(e), as a result of the Plaintiffs filing of the Second Amended Complaint (#50), the pending Motion for Summary Judgment (#36) became moot. However, on August 9, 2011, when Defendant filed its Answer (#51), Defendant revived its Motion for Summary Judgment (#36). Plaintiffs Second Amended Complaint (#50) contained three additional counts, namely: (1) specific negligence; (2) willful and wanton negligence; and (3) general negligence. This court will treat the Defendants Motion for Summary Judgment (#36) as requesting summary judgment on the following counts of the Plaintiffs Second Amended Complaint: Strict Product Liability (Count 1); Specific Negligence (Count 2); and General Negligence (Count 4). This court will not consider the Willful and Wanton Negligence (Count 3) allegation in the Defendants Motion for Summary Judgment (#36). Both parties are hereby granted leave to file an additional response, if desired, in regards to the Motion for Summary Judgment on the following counts of Plaintiffs Second Amended Complaint: Specific Negligence (Count 2) and General Negligence (Count 4). Responses due by 10/7/2011.
On October 7, 2011, Defendant filed a Memorandum in Support (#74) of its Motion for Summary Judgment as permitted by this court. Plaintiff did not take the opportunity offered by this court to file an additional response focusing on the Motion for Summary Judgment as it relates to his specific negligence and general negligence claims.
On July 18, 2011, this court granted the Plaintiff's Renewed Petition for Leave to File Amended Complaint Asserting Negligence (#30), believing that it was clear to the Plaintiff that he could file one additional claim-specifically a negligence claim. However, Plaintiff's Second Amended Complaint (#50) not only retained the strict product liability claim and added the negligence claim Plaintiff was granted leave to file, but also introduced two new claims: a willful and wonton "negligence" claim and a negligence claim based on res ipsa loquitur. Thereafter, Defendant filed a Motion to Dismiss (#52) the willful and wanton conduct claim and the negligence claim based on res ipsa loquitur, and Plaintiff filed a Response (#53).
The procedural history of this case makes it clear that the Plaintiff, in filing his Second Amended Compliant, completely disregarded this court's Order (#48). This court, although it was not required to, granted the Plaintiff's Renewed Petition for Leave to File Amended Complaint Asserting Negligence (#30). In the Plaintiff's Renewed Petition, the Plaintiff's request in his own words was as follows:
Therefore, for these reasons, Plaintiff respectfully requests this Court grant him leave to replace Count 2 in Plaintiff's Complaint filed December 1, 2010 [Doc #21] with Count 2 asserted in Plaintiff's proposed Amended Complaint [Doc #22-1], as this result prejudices no party and serves the greater interest of justice in this matter.
This court only granted the relief requested by the Plaintiff-which was to allow Plaintiff to add the single count of common law negligence which had been contained as a proposed amended complaint (#22-1). Therefore, Plaintiff did not have leave to file any other claim, and the attempt to include two new claims beyond what was requested in his request for leave is indicative of bad faith.*fn3 Moreover, this court finds that allowing the Plaintiff to introduce new legal theories at this late stage of the litigation would not be in the interests of justice. See Campbell v. Ingersoll Mill. Mach. Co., 893 F.2d 925, 927 (7th Cir. 1990). This case was initially filed on September 15, 2005, and the Plaintiff has had the opportunity to file multiple amended complaints in this case. Despite prior opportunities over the past six years to include additional claims, this court finds that there was undue delay because Plaintiff first made a request to include the willful and wanton claim on December 10, 2010, and first introduced the negligence claim based on res ipsa loquitur on July 26, 2011. Therefore, this court finds that both the willful and wonton "negligence" claim and the res ipsa loquitur claims are dismissed because they were beyond the limited leave that the Plaintiff was given by this court to amend his complaint and allowing further leave to amend would not be in the interests of justice.
II. MOTION FOR SUMMARY JUDGMENT
A. SUMMARY JUDGMENT STANDARD
Under Federal Rule of Civil Procedure 56, summary judgment is appropriate "if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a). In ruling on a motion for summary judgment, a district court "has one task and one task only: to decide, based on the evidence of record, whether there is any material dispute of fact that requires a trial." Waldridge v. Am. Hoechst Corp., 24 F.3d 918, 920 (7th Cir. 1994). In making this determination, the court must construe the evidence in the light most favorable to the nonmoving party and draw all reasonable inferences in favor of that party. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986); Burwell v. Pekin Cmty. High Sch. Dist. 303, 213 F. Supp. 2d 917, 929 (C.D. Ill. 2002). Speculation, however, is not the source of a reasonable inference. See Burwell, 213 F. Supp. 2d at 929, citing Chmiel v. JC Penney Life Ins. Co., 158 F.3d 966, 968 (7th Cir. 1998).
Therefore, the nonmoving party cannot rest on mere allegations or denials to overcome a motion for summary judgment; "instead, the non-movant must present definite, competent evidence in rebuttal." Butts v. Aurora Health Care, Inc., 387 F.3d 921, 924 (7th Cir. 2004). Consequently, expert testimony which is offered by a party only supports a finding that there is a genuine issue of material fact if it is admissible under Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993). See e.g., Ervin v. Johnson & Johnson, Inc., 492 F.3d 901, 904-05 (7th Cir. 2007). Summary judgment "is the 'put up or shut up' moment in a lawsuit, when a party must show what evidence it has that would convince a trier of fact to accept its version of events." Koszola v. Bd. of Educ. of City of Chicago, 385 F.3d 1104, 1111 (7th Cir. 2004). Specifically, to survive summary judgment, the nonmoving party "must make a sufficient showing of evidence for each essential element of its case on which it bears the burden at trial."
Kampmier v. Emeritus Corp., 472 F.3d 930, 936 (7th Cir. 2007), citing Celotex Corp., 477 U.S. at 322-23. "Conclusory allegations not supported by the record are not enough to withstand summary judgment." Basith v. Cook County, 241 F.3d 919, 928 (7th Cir. 2001).
B. STRICT PRODUCT LIABILITY-DESIGN DEFECT
To prevail on a strict liability claim based on a product defect, the Plaintiff has the burden to demonstrate each of the following elements: "(1) a condition of the product as a result of manufacturing or design, (2) that made the product unreasonably dangerous, (3) and that existed at the time the product left the defendant's control, and (4) an injury to the plaintiff, (5) that was proximately caused by the condition." Mikolajczyk v. Ford Motor Co., 901 N.E.2d 329, 345 (Ill. 2008). In its Motion for Summary Judgment (#36), Defendant argues that Plaintiff has failed to offer admissible evidence on three separate elements of his strict liability claim, specifically: (1) that the design of the cruise control deactivation switch ("switch") made it unreasonably dangerous; (2) that the defective condition of the switch proximately caused the injury; and (3) that the Plaintiff has failed to identify recoverable damages. Since the failure to offer admissible evidence on any element of the prima facie case is sufficient to grant summary judgment on Plaintiff's strict product liability claim, ...