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Hasan v. Cottrell, Inc.

United States District Court, N.D. Illinois, Eastern Division

August 21, 2014

EMAD HASAN, Plaintiff,
COTTRELL, INC., Defendant.


ELAINE E. BUCKLO, District Judge.

This is a products liability suit in which plaintiff, who was working as the driver of a "car hauler" manufactured by defendant, was injured when he fell from the top of a rig he claims was defectively designed. Plaintiff asserts strict liability, negligence, and contract claims. Defendant moved for summary judgment, or, in the alternative, to bar plaintiff's expert from offering opinions to support plaintiff's theory of liability.[1]

Before me is Magistrate Judge Rowland's Report and Recommendations, which recommends denying defendant's motion in full. Defendant timely objected to the Report and Recommendations, which I review de novo pursuant to 28 U.S.C. ' 636. While I conclude that certain of defendant's objections have merit, I accept Judge Rowland's ultimate recommendation for the reasons explained below.


The events culminating in plaintiff's injury are straightforward: While lying down in the course of securing an SUV to the "number one" deck position of the car hauler, i.e., the position above the rig's sleeper cab, plaintiff fell to the ground and suffered a serious injury to his foot. Plaintiff claims his fall was the direct result of the car hauler's defective design. As evidence of defect, plaintiff proffers the report of his expert, Dr. Gerald Micklow, a professor of engineering with substantial expertise in the areas of mechanical and aerospace engineering, and a frequent provider of expert reports and testimony on behalf of plaintiffs alleging defects in car haulers.

In this case, Dr. Micklow has provided a report setting forth eleven, individually numbered opinions.[2] The substance of these opinions overlaps and can be organized into three general categories:

First, Dr. Micklow opines that car carriers are unreasonably dangerous unless they include adequate fall protection mechanisms such as handholds, "catwalks, " friction increasing material, and/or flexible safety netting. He further opines that the car carrier from which plaintiff fell did not have these features. Micklow Rep., Pl.'s Resp. to Obj., Exh. B at ¶¶ 1, 2, 3, 6, 7.[3] [DN 131-2].

Second, Dr. Micklow opines that the risk of injury to workers on car haulers has long been well known in the industry and by defendant specifically, and that injuries such as plaintiff's are foreseeable in the absence of fall protection mechanisms such as those discussed in his report. Dr. Micklow further opines that plaintiff's injury was directly caused by the absence of such features from defendant's car hauler. Id. at ¶¶ 3, 4, 6, 8, 9, 10, 11.

Third, Dr. Micklow opines that feasible alternative designs exist and have existed "for some time." Specifically, he states that:

Examples of such feasible alternative designs are depicted in the photos of the European trailers obtained by Linda Weseman, the photos of European trailers, the photos of the Delavan trailer handrails, photos of the Cottrell upper deck handrails and the designs created by myself, Linda Weseman, Dr. Nigel Ellis and Sure Footing Safety Systems. Linda Weseman is a person well known to me and with whom I have conferred about this issue. She installed handrails on the specific trailer. I have reviewed the patent of Dr. Nigel Ellis and his drawings as well as his correspondence to Cottrell. Such designs by myself, Linda Weseman and Dr. Ellis are very much feasible as the same design concepts have been used on trailers for years around the world in other countries. They satisfy the Federal Size Regulations for Commercial Vehicles related to width restrictions. They are used in Europe with narrower width limits.

Id. at ¶¶ 5 (quoted text), 8.

Defendant's lead argument in its motion before Judge Rowland was that it is entitled to summary judgment, even if Dr. Micklow's testimony is considered, because plaintiff relies on the "risk-utility" method of proof to establish the car hauler's design defect, yet Dr. Micklow's opinion fails to address certain of the factors relevant to the risk-utility analysis under Illinois law. Accordingly, defendant insisted, Dr. Micklow's report and testimony do not amount to prima facie evidence that the car carrier was defective. See Mikoljczyk v. Ford Motor Co., 901 N.E.2d 329, 352 (Ill. 2008) (explaining that "risk-utility" is a method of establishing the "unreasonably dangerous" element of the design defect theory); Show v. Ford Motor Co., 697 F.Supp.2d 975, 908 (N.D. Ill. 2010) (same).

Defendant's second argument in its motion was that Dr. Micklow's report is inadmissible under Fed.R.Evid. 702 and Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993), because: a) Dr. Micklow is not qualified to offer the opinions expressed in his report, and b) his opinions are not reliable or relevant. On the first point, defendant argued that Dr. Micklow's expertise in aerospace engineering does not qualify him as an expert in "fall protection" or the "ergonomics associated with such fall protection." On the second, defendant assailed Dr. Micklow's opinions respecting feasible alternative designs and causation, insisting that they lacked support in the record and failed to consider either the cost of his proposed alternatives or whether those alternatives would have prevented plaintiff's injury in this case.

Judge Rowland recommended denying defendant's motion in its entirety. Taking defendant's arguments in reverse order, she began by analyzing Dr. Micklow's credentials and found that he was qualified to offer the opinions in his report, thus denying defendant's request to bar his testimony. Judge Rowland then turned to defendant's summary judgment arguments and concluded that Dr. Micklow's opinions about feasible design alternatives presented ...

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