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Schaefer v. Universal Scaffolding & Equip., LLC

United States District Court, S.D. Illinois

February 10, 2014



MICHAEL J. REAGAN, District Judge.

This case, in which Plaintiffs have sued under theories of negligence, strict liability, failure to warn, negligent spoliation, and loss of consortium, comes before the Court on six motions: four motions for summary judgment and two motions to bar expert testimony pursuant to Federal Rule of Evidence 702 (and Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993)). After a thorough review of the record, the parties' arguments, and relevant precedent, the Court rules as follows.


According to the Second Amended Complaint, Plaintiff Matthew Schaefer was working for contractor (and Defendant) Brand Energy Services ("Brand") at a power plant owned by Defendant Dynegy Midwest Generation ("Dynegy") when a piece of scaffolding manufactured by Defendant Universal Scaffolding & Equipment ("Universal") struck him. That piece of scaffolding has since disappeared, though it is undisputed it was in Dynegy's possession following Schaefer's injury.

Plaintiff and his wife sued in state court, and the case was removed (by Universal-the only Defendant at the time) in October 2010. By random draw, the case was assigned to District Judge G. Patrick Murphy, and Plaintiffs added Dynegy and Brand via amended complaints. The Second Amended Complaint targets Defendants thusly:

Count I - a negligence claim against Universal, which designed and manufactured the piece of scaffolding alleged to have failed;
Count II - a strict liability/products defect claim against Universal;
Count III - a strict liability/failure to warn count against Universal;
Count IV - a negligence claim against Dynegy, the owner/operator of the power plant where Plaintiff sustained his injury;
Counts V and VI - negligent spoliation claims against both Dynegy and Brand re: the disappearance of the piece of scaffolding at the heart of the case;
Count VII - a loss of consortium claim against all three Defendants.

Dynegy filed crossclaims for contribution against Brand and Universal, and after extensive discovery, motion practice began. In December 2012, Brand moved for summary judgment on a theory it owed no duty to Plaintiffs to preserve the scaffolding. After a June 2013 hearing, Judge Murphy denied that motion.

From August to September 2013, the parties filed the six motions now before the Court:

1. Plaintiffs' Motion for Summary Judgment against Brand and Dynegy (Doc. 115);
2. Universal's Motion for Summary Judgment (Doc. 117);
3. Universal's Motion to Bar Plaintiffs' Scaffolding Expert Richard Unger (Doc. 118);
4. Universal's Motion to Bar Plaintiffs' Scaffolding Expert Gene Maniago (Doc. 119);
5. Brand's Cross-Motion for Summary Judgment re: Plaintiffs' Spoliation Claims and Dynegy's s (Doc. 122);
6. Dynegy's Cross-Motion for Summary Judgment re: Plaintiffs' Spoliation Claims (Doc. 123).

Other than Universal's challenges to Plaintiffs' experts-September 2013 challenges that inexplicably drew no response until February 2014-the motions have ripened.[1] For the reasons explained below, the Court DENIES Plaintiffs' Motion for Summary Judgment (Doc. 115) and the Cross-Motion for Summary Judgment filed by Brand (Doc. 122) and Dynegy (Doc. 123). The Court also GRANTS Universal's Motion for Summary Judgment (Doc. 117) as to Plaintiff's claims, a ruling which renders Universal's challenges to Plaintiffs' experts (Doc. 118; Doc. 119) MOOT.


In 2008, Dynegy bought over $2.5 million worth of scaffolding from Brand, and hired Brand to erect the scaffolding at Dynegy's power plant in Baldwin, Illinois. Plaintiff Matthew Schaefer, a Brand employee, was helping to erect the scaffolding in November 2008. Plaintiff was handing pieces of scaffolding up to a co-worker when, somehow, an approximately 3.5-foot piece fell approximately six feet onto his head. According to the Second Amended Complaint, Plaintiff suffered "disabling injuries to his neck, back, head, shoulders and arms." Plaintiff testified he was concussed, suffered a herniated disc, has memory loss and occasional headaches (though those were severe immediately following his accident), has had two spinal taps and currently suffers from back pain, neck pain, and numbness in his extremities. (Doc. 116-3, 10-11).

There is some confusion as to who manufactured the piece of scaffolding that struck Plaintiff. Plaintiff's co-worker testified the majority of the scaffolding was marked with labels indicating it was made by Defendant Universal Scaffolding & Equipment, and that much of that scaffolding was not of uniform length and had bent "ears" (portions of scaffolding that help stabilize the scaffolding structure at each junction). (Doc. 116-8, 6-8). (The power plant scaffolding was of the "cup lock" or "cup and lock" variety, in which horizontal members are stabilized by a cup that slides down each vertical member and locks horizontal pieces in place). Plaintiff's co-worker testifies that the 3.5-foot horizontal bar "popped... out" of its cup when he put in an adjoining horizontal piece. (Doc. 116-8, 9-10). Once the piece of scaffolding struck Plaintiff, a Brand supervisor, Ryan Wampler, directed all employees to "go around and hit all the cups, " presumably to shore up the joints between adjoining pieces of scaffolding. (Doc. 116-8, 14-15).

Wampler immediately told Dynegy's on-site Health & Safety Director Donald Watson about Plaintiff's accident. Under instructions from his own supervisor, Watson told Wampler to secure the bar. Wampler took the scaffolding to Watson, who in turn stored it in his office with at least one other fallen piece of scaffolding (that Watson kept to "make sure there [weren't] any issues"). (Doc. 116-1, 9). Upon procuring the bar, Watson states: "I did look at it, and I went to the internet because I wanted to find out how much the piece weighed. I want[ed] to know, you know, how much, what force was when it came down and hit [Plaintiff] in the head." (Doc. 123-1, 20). Wampler (and by extension, Brand) knew Dynegy had possession of the scaffolding component. (Doc. 99-1, 7).

In December 2009, when Watson moved his office to O'Fallon, Illinois, he left the scaffolding bar in his Baldwin office. In early 2010, Watson's Baldwin office was cleared, its contents stored in a training room at Baldwin. In September or October 2010, a safety professional saw the scaffolding component, but by the time Dynegy was presented with a pointed request for the scaffolding (in November 2011), it was nowhere to be found.

In the meantime, Plaintiff filed a March 2009 workers' compensation suit and a December 2009 discovery complaint against Brand. Watson's testimony is somewhat contradictory as to whether he knew about the workers' comp claim: at one point he thought he knew about Plaintiff's workers comp claim (Doc. 123-1, 21-22); at another he claims not to remember knowing about any litigation until contacted by Dynegy's attorney (Doc. 123-1, 34-36).

Brand received the discovery complaint in February 2010 (during which time the scaffolding bar was either in Watson's old office or in the Baldwin training room). The suit in discovery contained three interrogatories that, though not demanding the specific piece of scaffolding that struck Plaintiff, broadly concerned the scaffolding equipment ...

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