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Poulter v. Cottrell Inc.

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

December 28, 2016

JOHN POULTER, Plaintiff,
COTTRELL, INC., Defendant.


          John J. Tharp, Jr. United States District Judge.

         Defendant Cottrell, Inc., moved for summary judgment (having lost a previous motion for summary judgment) in this products liability case on the ground that federal law requires expert testimony to prove a product is defective, even in diversity cases. Because this Court concludes that state law governs whether such testimony is required to prove a products liability claim, and Kentucky law does not require such testimony where the alleged defect is within the ken of ordinary jurors, Cottrell's second motion for summary judgment is also denied.


         This case has already survived summary judgment once and the issues here are exclusively legal, so few facts are necessary to understand the present dispute. Plaintiff John Poulter hauls cars for a living, which is what he was doing using a rig manufactured by Cottrell when he fell on January 31, 2011. See Poulter v. Cottrell, Inc., 50 F.Supp.3d 953, 955 (N.D. Ill. 2014). Poulter sued Cottrell in strict product liability and negligence, claiming the rig was defective because it should have included more safety features (such as handrails and guardrails or cables). Id. at 958. Cottrell moved for summary judgment, claiming (among other things) that Poulter had failed to establish “a negative risk utility, ” “a feasible alternative design, ” or “evidence of causation.” Id. at 961. The Court denied Cottrell's motion for summary judgment, finding that testimony from Poulter's expert, Cottrell's own engineer, and other evidence such as photographs of the rig, were sufficient to create issues of material fact. Id. at 961-962.

         Some two years later, Cottrell claimed via a motion in limine that federal law should apply to whether an expert is required to prove the existence of a defect, that federal law requires such expert testimony, and that Poulter failed to provide such testimony. See Def.'s Mot., ECF No. 163. Poulter does have an expert, but the expert is barred by a prior ruling of this Court from testifying that the rig was defective because the expert failed to set forth the standards used in reaching that opinion. See Poulter v. Cottrell, Inc., No. 12 C 01071, 2014 WL 5293595, at *4 (N.D. Ill. June 24, 2014). Similarly, the Court barred testimony that the lack of safety measures “was the principal cause” of the fall because it “offers no more than the inference that any lay person could draw from Poulter's testimony: that he fell because he had nothing to hold onto or to catch him.” Id. at *3-4.

         After considering the motion in limine, the Court authorized Cottrell to file this second motion for summary judgment to more fully address three issues: (1) whether federal or state law governs whether expert testimony as to the existence of a defect is required, (2) what that law says on the question, and (3) if required, whether the admissible portion of Poulter's expert testimony suffices.


         As an initial matter, the Court notes and rejects Cottrell's effort to expand the scope of the issues to be addressed. Cottrell, for example, devotes the third section of its brief to the idea that Poulter's expert's remaining testimony (which has already been found admissible by this Court) is in fact inadmissible. See Def.'s Mem. at 12, 15-16, ECF No. 170. Cottrell further adds an argument that Poulter's breach of implied warranty claim should be dismissed because Kentucky law requires privity of contract.[1] Id. at 16. Cottrell also mischaracterizes, or at least misapprehends, the Court's prior summary judgment ruling when it claims that the Court held that “plaintiff's claims ‘collapse' without expert evidence of defect.” Id. at 3. In fact, the Court noted only that the analyses required for plaintiff's strict liability and negligence claims “collapse” into the same analysis in a case of design defect “because the foundation of both theories is that the product is unreasonably dangerous.” Id. (internal quotation omitted). Nowhere did the Court hold that expert evidence of design defect is required. Had the Court done so, Cottrell would not have needed this second bite at the summary judgment apple.[2]

         For his part, Poulter devotes much of his brief to an argument about law of the case- even though the Court granted leave to Cottrell to file its further motion-and opted not to answer the first or second questions, preferring to simply stand on the sufficiency of his evidence under either regime. See Pl.'s Resp. at 6-8, ECF No. 175. That risky approach offers little assistance in addressing the issues identified by the Court. The problems in these responses notwithstanding, the Court presses on to address the issues on which it requested briefing: whether state or federal law applies to the issue of if an expert's testimony on a product's defect is required, what that law says, and whether Poulter has provided what the law requires of him.

         I. State Law Controls

         This is a diversity case in which Kentucky substantive law applies. Cottrell's motion is premised upon a 2011 Seventh Circuit case in which a panel ruminated about whether “federal rather than state law determines whether expert evidence is essential.” Show v. Ford Motor Co., 659 F.3d 584, 586 (7th Cir. 2011). After noting several federal statutes that require expert testimony to establish consumer expectations, the opinion went on to analyze Illinois law to determine whether or not in that case an expert's testimony was required. Id. at 586-87. Both parties had assumed Illinois law governed the issue, and its dicta notwithstanding, the Show panel explicitly “bypass[ed]” the issue of whether “federal law determines what kind of evidence is required.” Id. at 587. It then concluded that under Illinois law, such evidence is required in a products liability suit. Id. at 588. The Seventh Circuit has continued to require expert testimony in products liability cases when applying Illinois law. See Thornton v. M7 Aerospace LP, 796 F.3d 757, 772 (7th Cir. 2015). Other district courts have also considered Show to be an application of Illinois law rather than an overriding federal rule. See, e.g., Assaf v. Cottrell, Inc., No. 10 C 85, 2012 WL 4177274, at *2 (N.D. Ill. Sept. 19, 2012). The Seventh Circuit has also accepted state law as controlling other evidentiary questions in products liability cases, such as whether a defect can be proved by circumstantial evidence. See, e.g., Schaefer v. Universal Scaffolding & Equip., LLC, 839 F.3d 599, 604-05 (7th Cir. 2016). Other circuits have also applied state law to determine whether expert testimony is required. See, e.g., Newell Rubbermaid, Inc. v. Raymond Corp., 676 F.3d 521, 532 (6th Cir. 2012).

         Further, although it is true that the Federal Rules of Evidence apply in diversity suits, state law controls issues such as “the elements of a defense and the burden of persuasion.” Intercon Solutions, Inc. v. Basel Action Network, 791 F.3d 729, 732 (7th Cir. 2015). Federal adoption of a requirement for expert testimony could be considered to add an element to state law where none exists, or at the very least increase the burden of persuasion that might otherwise apply under state law. Increasing the evidentiary requirements on plaintiffs who are pulled by defendants into federal court rather than remaining in state court could, therefore, threaten to revive the “mischievous results” that current doctrine attempts to alleviate.[3] Erie R.R. v. Tompkins, 304 U.S. 64, 74 (1938).

         There are good reasons, then, for caution in following the path considered-but by-passed-by the Seventh Circuit in Show. This Circuit has not itself committed to that path, and existing precedent points in the other direction. In light of the Seventh Circuit's history of accepting state law as controlling questions of what evidence is required to prove a case and the underlying principles of diversity jurisdiction, the Court finds that it is to state law-here, ...

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