Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Yasser Assaf v. Cottrell

September 19, 2012

YASSER ASSAF
v.
COTTRELL, INC. ET AL.



Name of Assigned Judge James F. Holderman Sitting Judge if Other or Magistrate Judge than Assigned Judge

CASE TITLE

DOCKET ENTRY TEXT

For the reasons explained in the Statement section of the order, defendant Cottrell Inc.'s "Motion to Exclude the Testimony of Dr. Harvey Cohen under Daubert and for Summary Judgment" [148, 150] is granted in part and denied in part. The court grants summary judgment to Cottrell on Assaf's claim that it is liable under a theory of strict liability (Count I). The court denies Cottrell summary judgment on the other counts, and denies without prejudice Cottrell's motion to exclude Dr. Cohen's testimony. The motion to dismiss of defendants East Coast Truck & Trailer Sales Inc. and East Coast Auto Transport Inc. [156] is denied. A status hearing is set for October 2, 2012.

O[ For further details see text below.] Docketing to mail notices.

STATEMENT

On December 6, 2007, plaintiff Yasser Assaf injured himself when he fell from an auto hauler trailer manufactured by defendant Cottrell, Inc., and sold to Assaf's employer by East Coast Truck & Trailer Sales Inc. and East Coast Auto Transport Inc. (the "East Coast Entities"). According to Assaf, the auto hauler trailer had a defective design because it did not provide sufficient safety mechanisms, such as guardrails, handholds, or sufficiently wide catwalks. In this products liability action, Assaf alleges that Cottrell and the East Coast Entities are liable to him under three theories: strict liability (Counts I & V), negligence (Counts II & VI), and breach of implied warranty (Counts III & VII). (Dkt. No. 2, Ex. A.) Assaf also alleges that Cottrell is liable for punitive damages for its "wilful & wanton conduct." (Count IV.) Pending before the court is Cottrell's "Motion to Exclude the Testimony of Dr. Harvey Cohen under Daubert and for Summary Judgment" (Dkt. Nos. 148 & 150) and the East Coast Entities' "Motion to Dismiss" Assaf's complaint. For the reasons explained below Cottrell's "Motion to Exclude the Testimony of Dr. Harvey Cohen under Daubert and for Summary Judgment" is granted in part and denied in part. The court grant's Cottrell summary judgment on Assaf's claim that it is liable under a theory of strict liability (Count I). The court denies Cottrell's request for summary judgment on the other counts, and denies without prejudice Cottrell's motion to exclude Dr. Cohen's testimony. The East Coast Entities' motion to dismiss is denied.

ANALYSIS

Cottrell's summary judgment motion seeks to exclude the testimony of Assaf's expert, Dr. Harvey Cohen, and contends that it is entitled to summary judgment on each of Assaf's claims against it. Because the resolution of the summary judgment motion does not depend on the admissibility of Dr. Cohen's testimony, the court will address the summary judgment motion first.

I. Summary Judgment

A grant of summary judgment is proper "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); see also Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986). "There is no genuine issue of material fact when no reasonable jury could find in favor of the nonmoving party." Brewer v. Bd. of Trs. of the Univ. of Ill., 479 F.3d 908, 915 (7th Cir. 2007). When ruling on a motion for summary judgment, the court must consider the facts before it in the light most favorable to the nonmoving party, drawing all reasonable inferences in the nonmoving party's favor. McCann v. Iroquois Mem'l Hosp., 622 F.3d 745, 752 (7th Cir. 2010).

Initially, the court notes that Cottrell failed to file a reply to Assaf's Local Rule 56.1(b)(3)(C) Statement of Additional Material Facts. (Dkt. No. 160.) Accordingly, all of the facts in Assaf's Local Rule 56.1(b)(3)(C) Statement are deemed admitted for purposes of this motion. Malec v. Sanford, 191 F.R.D. 581, 584 (N.D. Ill. 2000) ("The sanction for failing to reply is identical to that imposed for failing to respond: admission of the opposing party's factual contentions.").

Cottrell first argues that it is entitled to summary judgment on all of the claims against it because Assaf has not presented sufficient evidence that the trailer's alleged defect proximately caused his injury. Cottrell is correct that Dr. Cohen does not opine on causation. (Dkt. No. 150 ("Cottrell's SMF") ¶¶ 36-37.) Cottrell errs, however in its assertion that Assaf must have expert testimony to show causation. In support of its argument, Cottrell cites Show v. Ford Motor Co., 659 F.3d 584, 585 (7th Cir. 2011), which applied Illinois law holding that "expert testimony is vital in design-defect suits when aspects of a product's design or operation are outside the scope of lay knowledge." In this case, Assaf's allegations involve only a simple slip-and-fall case in which the aspects of the product at issue are within lay knowledge. A lay jury is capable of evaluating whether the absence of guardrails, handholds, and wider catwalks caused Assaf to fall. Accordingly, Assaf's testimony that when he lost his balance, there was no part of the trailer that he could have grabbed on to regain his balance (Dkt. No. 160 ("Pl.'s SMF") ¶ 16) (the truth of which, again, is deemed admitted for the purposes of this motion) is sufficient to allow a reasonable jury to find that the trailer's alleged defect caused Assaf's injuries.

Next, Cottrell contends that Assaf has not submitted sufficient evidence that the alleged design defect made the trailer unreasonably dangerous, which is a required element of a strict liability claim. Mikolajczyk v. Ford Motor Co., 901 N.E.2d 329, 345 (Ill. 2008) ("Under Illinois law, the elements of a claim of strict liability based on a defect in the product are: (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."). A plaintiff may show a design defect that is unreasonably dangerous in either of two ways. First the plaintiff may use the "consumer-expectation test," which requires the plaintiff to "prove that the product is dangerous to an extent beyond that which would be contemplated by the ordinary consumer who purchases it." Show v. Ford Motor Co., 697 F. Supp. 2d 975, 980 (N.D. Ill. 2010) (citation and quotation marks omitted), aff'd, 659 F.3d 584 (7th Cir. 2011). Second, the plaintiff may use the "risk-utility test," under which "the plaintiff must offer proof that the risk of danger inherent in the product design outweighs its benefits." Id. at 981. Assaf states that he can prove that the trailer was unreasonably dangerous under either test (Dkt. No. 162, at 8), but presents evidence and argument related only to the risk-utility test. Moreover, "if the evidence is sufficient to implicate the risk-utility test, a broader test which incorporates the factor of consumer-expectation is applied by the trier of fact." See Mikolajczyk,901 N.E.2d at 352--53. Accordingly, the court will evaluate the sufficiency of Assaf's evidence under only the risk-utility test. See Cappellano v. Wright Med. Grp., Inc., 838 F. Supp. 2d 816, 827 (C.D. Ill. 2012).

Assaf asserts that under that test he need only submit evidence that a condition of the trailer caused his injury, and the burden then shifts to Cottrell to show that the benefits of the challenged design outweigh its safety risks. In support of that contention, Assaf cites Mikolajczyk's statement that under the risk-utility test, "the plaintiff may introduce 'evidence that the product's design proximately caused his injury.'" and that "[i]f the defendant thereafter 'fails to prove that on balance the benefits of the challenged design outweigh the risk of danger inherent in such designs,' the plaintiff will prevail." Mikolajczyk, 901 N.E.2d at 336 ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.