United States District Court, N.D. Illinois, Eastern Division
MEMORANDUM OPINION AND ORDER
J. Tharp, Jr. United States District Judge.
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.
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.
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.
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.
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. 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.
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.
State Law Controls
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).
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. Erie R.R. v. Tompkins, 304 U.S.
64, 74 (1938).
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