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Schuring v. Cottrell, Inc.

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

March 27, 2017

Gregory Schuring and Mary Schuring, Plaintiffs,
v.
Cottrell, Inc. and Casses Corporation, Defendants

          MEMORANDUM OPINION AND ORDER

          Virginia M. Kendall United States District Court Judge

         Plaintiff Gregory Schuring and his spouse, Mary Schuring, brought this action against Defendant Cottrell, Inc.[1] after Gregory sustained injuries in a fall from a Cottrell-manufactured trucking rig during the course of his work as a truck driver hauling cars. Plaintiffs filed state claims in Illinois against Cottrell, and Cottrell removed the state action to this Court pursuant to diversity jurisdiction. (Dkt. 2.) Gregory Schuring seeks damages for strict product liability (Count I), product negligence (Count II), implied warranty (Count III), and willful and wanton conduct (Count IV), while Mary Schuring seeks to remedy her loss of consortium (Count XIII). Cottrell moves this Court to bar Plaintiffs' expert, Clarke Gernon, from testifying about the unreasonable danger posed by the design of Cottrell's trucking rig [97] and moves for summary judgment pursuant to Federal Rule of Civil Procedure 56. [94] For the following reasons, the Court denies both motions.

         BACKGROUND

         The parties do not dispute the below facts unless otherwise noted.

         On September 3, 2011, Plaintiff Gregory Schuring (“Schuring”) was working as a car hauler for Cassens Transport Company, Inc., delivering automobiles to dealerships in Illinois. (Dkt. 107, Plaintiffs' Response to Defendant Cottrell's LR 56.1 Statement of Material Facts, ¶¶ 1, 3, 5-6.) He drove a rig made by Defendant Cottrell, Inc. (“Cottrell”), which designs, manufactures, and sells automobile transport trailers. (Id., ¶¶ 2, 6.) At his last stop of the day, he went to unload two Nissan Jukes. (Id., ¶ 5.) Both vehicles sat on the upper deck of the rig - one in the “No. 6” position, towards the front of the truck over its cab, and the other in the “No. 8” position, towards the rear. (Id., ¶ 7; Dkt. 109, Cottrell's Response and Objections to Plaintiffs' Statement of Additional Facts, ¶ 2.) Schuring climbed to the upper deck, still elevated, and tried to walk from the No. 6 position in the front to the No. 8 position in the rear.[2] (Dkt. 107, ¶¶ 6, 11; Dkt. 105-2, Schuring Dep., at 152, 149:5-21.) In doing so, Schuring crossed over the middle position, No. 10. (Dkt. 107, ¶ 11; Dkt. 109, ¶ 2.) He gripped the bar adjacent to position No. 10 and attempted to step with his right foot onto a narrow steel beam that served as the outer rail of position No. 8.[3] (Dkt. 109, ¶¶ 6-7; Dkt. 105-2, at 15, 6:3-7.)[4] His right foot slipped on a substance thought to be hydraulic fluid and wedged between the deck's outer rail and its “flipper, ” a metal hinge used to bridge positions No. 8, 10, and 6 so that vehicles drive on the upper deck. (Dkt. 107, ¶¶ 13, 15; Dkt. 109, ¶ 8; Dkt. 105-7, Gernon Dep., at 36, 139:4-140:25.)

         With his foot stuck, Schuring fell backwards and hung upside down. (Dkt. 107, ¶ 16.) Dangling, he called for help. (Id., ¶ 17.) No help came. (Id., ¶ 17.) Schuring could feel pain in his right foot and leg. (Dkt. 109, ¶ 10.) With no help on the way, Schuring hooked his left foot around the base of the grab-bar at position No. 10 in order to free his foot and himself.[5] (Dkt. 107, ¶ 17; Dkt. 109, ¶ 10.) Schuring successfully unhooked his right foot, but when he did, he fell to the ground and landed on his left buttocks. (Dkt. 109, ¶¶ 10, 11; Dkt. 105-2, at 166, 163:2-164:9; 175-181, 172:21-178:5.)

         Back in 2009, Cottrell had retrofitted the head ramp with a strap system after two fatal incidents prompted the company to provide additional materials to protect the safety of their customers. (Dkt. 107, ¶ 6; Dkt. 109, ¶ 1; Dkt. 105-8, Hanks Dep., at 6, 15: 7-21; Dkt. 105-4, Howes Dep., at 10-11, 32:14-36:23.) This retrofitting included the addition of two cables strung by posts in position No. 6 in order to protect drivers from falling off the upper deck. (Dkt. 109, ¶ 3.) No such cable guardrails flanked positions No. 10 or 8, where Schuring slipped. (Id., ¶ 5.) A catwalk attached in the middle of the outer rail of position No. 8, which provided a wider surface area for drivers walking or standing on the upper deck while loading or unloading cars. (Id., ¶ 12.) No such catwalk existed where Schuring's foot slipped off the rail. (Id., ¶ 13.) According to Schuring, he has seen a couple of car hauler rigs that have posts and cable guard rails installed in the position No. 8 area where he fell. (Id., ¶ 16; Dkt. 105-2, at 51, 51:7-52:14.) The rail itself had been coated with non-skid paint, making it a surface that Cottrell's user manual and warning labels advised drivers to use when climbing up or down the head ramp or generally moving about the rig. (Id., ¶ 14.) The user manual also warned that drivers should check for any fluids, debris or other contaminants on the decks and, if found, clean any residue before proceeding. (Dkt. 105-2, Cottrell Operator's Manual for Car-Hauling Equipment, at 394.)

         Schuring and his spouse, Mary, filed this Complaint in Illinois state court, alleging that design flaws in the trucking rig, including inadequate catwalks and grab-bars, led to Schuring's fall. (Dkt. 2-2, at 4; Dkt. 107, ¶ 1.) The Plaintiffs seek actual, compensatory, and punitive damages. (See Dkt. 2-2, at 5-7, 9, 24.) To prove these defects, Plaintiffs offer the testimony of their expert, Clarke J. Gernon, Sr. (Dkt. 105-7, Gernon Dep.; Dkt. 105-6, Gernon Findings; Dkt. 105-9, Gernon Resume.) Gernon has forty-eight years of experience as a mechanical engineer, working on projects in the automotive, aerospace, and aircraft industries, among others. (Dkt. 105-9, at 1.) He has provided expert testimony in cases related to accidents involving automobiles, forklifts, tractors, and heavy machinery. (Id., at 3-16.) For Schuring's case, along with his respective personal observations and inspections of the truck and alternative design in question, Gernon reviewed patents, federal regulations, photographs, deposition transcripts, and documents produced by Defendants. (Dkt. 105-6, at 3-8.) He offers five opinions on what he deems unreasonably dangerous aspects of the design and manufacture of Cottrell's trucking rig, namely insufficient catwalks, grab-bars, movable safety platforms, and an overall design that requires drivers to make multiple trips to the head ramp in order to comply with Cottrell's unloading procedure. (Id., at 3-6.)

         On October 4, 2013, Cottrell removed the action to this Court pursuant to diversity jurisdiction. (Dkt. 2, at 1.) Cottrell now moves to bar Gernon as an expert and, regardless of whether the Court considers Gernon's testimony, moves for summary judgment against the Schurings. (Dkt. 94; Dkt. 97.)

         DISCUSSION

         In Counts I-IV, Gregory Schuring seeks damages for strict liability, negligence, implied warranty, and willful and wanton conduct, respectively. (Dkt. 2-2, at 3-9.) His spouse, Mary Schuring, seeks to remedy her loss of consortium in Count XIII. (Id., at 24.) Cottrell moves to bar Plaintiffs' expert, Gernon, by arguing that Gernon fails to meet any of the criteria required for an expert to testify. (Dkt. 98, at 3.) Cottrell further moves for summary judgment on the grounds that the record, even with Gernon's testimony, cannot show that the design and manufacture of Cottrell's trucking rig proximately caused Schuring's injury. (Dkt. 95, at 1-2.)

         I. Motion to Bar Plaintiffs' Expert, Clarke Gernon

         A. Legal Standard

         The Court first turns to Cottrell's Motion to Bar Plaintiffs' Expert. “The admissibility of expert testimony is governed by Federal Rule of Evidence 702 and the Supreme Court's opinion in Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993).” Lewis v. CITGO Petroleum Corp., 561 F.3d 698, 705 (7th Cir. 2009) (citing Naeem v. McKesson Drug Co., 444 F.3d 593, 607 (7th Cir. 2006)). Rule 702 charges trial judges with acting as “gatekeeper[s] with respect to testimony proffered under Rule 702 to ensure that the testimony is sufficiently reliable to qualify for admission.” Mihailovich v. Laatsch, 359 F.3d 892, 918 (7th Cir. 2004) (citing Kumho Tire Co. v. Carmichael, 526 U.S. 137, 147, (1999)). “The purpose of [the Daubert ] inquiry is to vet the proposed testimony under Rule 702's requirements that it be ‘based on sufficient facts or data, ' use ‘reliable principles and methods, ' and ‘reliably appl[y] the principles and methods to the facts of the case.'” Lapsley v. Xtek, Inc., 689 F.3d 802, 804 (7th Cir. 2012) (quoting Fed.R.Evid. 702).

         In evaluating whether an expert's proposed testimony meets the Daubert standard, the Court “scrutinize[s] the proposed expert witness testimony to determine if it has ‘the same level of intellectual rigor that characterizes the practice of an expert in the relevant field' so as to be deemed reliable enough to present to a jury.” Lapsley, 689 F.3d at 805 (quoting Kumho Tire, 526 U.S. at 152). Whether to admit expert testimony rests within the discretion of the district court. See id., 689 F.3d at 810 (“[W]e ‘give the district court wide latitude in performing its gate-keeping function and determining both how to measure the reliability of expert testimony and whether the testimony itself is reliable.'”) (quoting Bielskis v. Louisville Ladder, Inc., 663 F.3d 887, 894 (7th Cir. 2011)). The expert's proponent bears the burden of demonstrating that the testimony would satisfy the Daubert standard by a preponderance of the evidence. Lewis, 561 F.3d at 705; see also Fed. R. Evid. 104(a) (“The court must decide any preliminary question about whether a witness is qualified....”); Fed.R.Evid. 702 advisory committee's note to 2000 amendment.

         Courts apply the Daubert framework to Rule 702 using a three-part analysis. Myers v. Ill. Cent. R.R. Co., 629 F.3d 639, 644 (7th Cir. 2010). First, the Court must determine whether knowledge, skill, experience, training, or education qualify the proposed witness as an expert. If so, the Court must decide whether the reasoning or methodology underlying the expert's testimony is reliable. If the proposed expert meets both requirements, the Court must assess whether the expert's proposed testimony will assist the trier of fact in understanding the evidence or determining a factual issue. See Fed. R. Evid. 702; Myers, 629 F.3d at 644 (citing Ervin v. Johnson & Johnson, Inc., 492 F.3d 901, 904 (7th Cir. 2007)); see also Ortiz v. City of Chicago, 656 F.3d 523, 526 (7th Cir. 2011). The Court only addresses those opinions brought to the Court's attention and will not separately probe to issue sua sponte determinations regarding the admissibility of each statement. See, e.g., Goldberg v. 401 North Wabash Venture LLC, No. 09 C 6455, 2013 WL 212912, at *1 n.1 (N.D.Ill. Jan. 18, 2013).

         B. Daubert analysis

         1. Qualifications

         Cottrell first argues that Gernon does not qualify to give the opinions he offers because his expertise does not prepare him to speak on the matters at issue in this case. Gernon testified that he does not hold himself out as an expert with regards to the “automobile transport industry” or the “design and manufacture of automobile transport trailers.” (Dkt. 98, at 5; Dkt. 105-7, at 55, 216:18-217.) Asked if he held himself out as a “fall protection or prevention expert, ” Gernon replied, “Not particularly.” (Dkt. 98, at 5; Dkt. 105-7, at 26, 100:21-23.) He also confirmed that he had never worked for a car hauler designer, hauled cars, consulted for a car hauling company, designed any part of any automobile transport trailer, nor consulted with anyone regarding the design of such a trailer. (Dkt. 98, at 5; Dkt. 105-7, at 121:17-122:15.) He never witnessed the model of this Cottrell rig in operation. (Dkt. 98, at 5; Dkt. 105-7, at 75, 4:24.) Moreover, he could not speak to specifics about the federal regulations restricting truck dimensions or drivers' union agreements. (Dkt. 98, at 5: Dkt. 105-7, at 212:18-214:21; 215:14-216:17.)

         While Gernon's answers affect the weight of his credibility, Cottrell mischaracterizes the Daubert inquiry. Courts do not necessarily require an expert witness to possess specialized expertise with an industry or product. Rather, courts ask whether his qualifications “provide a foundation for [him] to answer a specific question.” See Gayton v. McCoy, 593 F.3d 610, 617 (7th Cir. 2010) (citing Berry v. City of Detroit, 25 F.3d 1342, 1351 (6th Cir.1994)); see e.g., Lott v. ITW Food Equip. Grp. LLC, No. 10 CV 1686, 2013 WL 3728581, at *6, 14 (N.D. Ill. July 15, 2013) (holding that mechanical engineer proffered as expert witness need not have experience engineering the particular piece of equipment at issue). For example, courts often find generalist physicians competent to testify about medical problems typically treated by specialists if the opinion does not require specialized knowledge. See Gayton, 593 F.3d at 617 (citations omitted). A doctor who is not a cardiologist or pharmacist may testify that a combination of medications and symptoms contributed to a plaintiff's death where the effects of resulting vomiting are not specialized knowledge, but she may not qualify to testify that a particular medication would have prevented the death. See Id . An expert witness does not even have to offer “scientific” testimony as long as it is within his competence. See Tuf Racing Prods., Inc. v. American Suzuki Motor Corp., 223 F.3d 585, 591 (7th Cir. 2000) (citations omitted).

         The parties do not dispute Gernon's expertise as a forensic mechanical engineer. He holds a graduate degree in mechanical engineering and has managed or engineered such projects for forty-eight years. (See Dkt. 105-9, at 1.) Gernon's experience includes mechanical puzzles of far greater complexity than safety mechanisms for trucking rigs, such as converting a chemical and biological weapons production facility into a center for cancer research and designing devices to test the engines of tanks and helicopters used in Operation Desert Storm. (See id., at 1.) Nothing in the record suggests, and Cottrell does not argue, that fall protection design for trucking rigs is so specialized that someone with Gernon's mechanical engineering background would not qualify to opine on the issue. (See id., at 1.)

         Of course, a mechanical engineer does not necessarily qualify to speak to all product design questions. See Gayton, 593 F.3d at 617. Cottrell points to cases where proposed witnesses did not qualify as experts without more particularized backgrounds. See e.g., Padilla v. Hunter Douglas Window Coverings, Inc., 14 F.Supp.3d 1127, 1131-32 (N.D. Ill. 2014); Moore v. P & G-Clairol, Inc.,781 F.Supp.2d 694, 704 (N.D. Ill. 2011); Edwards v. Permobil, Inc., No. 11-CV-1900-SSV-DEK, Dkt. 208 (E.D. La. Aug. 21, 2013). Yet none of these cases directly apply. Padilla struck an expert witness who “admitted during his deposition that he has no practical experience or training in the field of window blind design…” See e.g., Padilla, 14 F.Supp.3d at 1132. But in that case, unlike here, the proffered witness based his expertise on his tenure as Commissioner on the United States Consumer Production Safety Commission without any training as an engineer, which he conceded would be necessary for him to understand how window blinds open and close. See e.g., Padilla, 14 F.Supp.3d at 1131-32. Similarly, in Moore v. P & G-Clairol and Edwards, the mechanical engineers proffered as experts - including Gernon himself in the latter - did not possess the specialized psychological expertise to qualify to ...


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