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Kucharski v. Orbis Corp.

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

May 5, 2017



          AMY J. ST. EVE, District Court Judge

         Defendant Orbis Corporation (“Orbis”) has moved for summary judgment on Counts I and II of Plaintiffs Jerzy and Maria Kucharski's Complaint alleging negligence and loss of consortium. (R. 95, Mem. of Law in Support of Mot. for Summ. J.) Defendant has also moved to exclude portions of the opinions and testimony of Plaintiffs' expert Donald Hess pursuant to the Federal Rules of Evidence and Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579 (1993). For the following reasons, the Court grants in part and denies in part Defendant's Daubert motion and grants Orbis's motion for summary judgment.


         This case arises from injuries Jerzy Kucharski (“Kucharski”), a truck driver employed by Polmax Trucking, Inc. (“Polmax”), suffered on October 15, 2012, while opening the rear doors of a semi-trailer in Laredo, Texas. (R. 100, Ex. 1, Kucharski's Statement of Facts, 1, ¶¶ 1-2.) Kucharski has sued Orbis for negligence, and his wife, Maria, has sued Orbis for negligence and loss of consortium.

         I. The Loading of the Trailer

         Orbis loaded the semi-trailer with plastic interlocking pallets at its facility in Menasha, Wisconsin and contracted with Polmax to transport the pallets from Menasha to Hidalgo, Mexico-the semi-trailer's ultimate destination as relevant to this lawsuit. (Id. 1-2, ¶¶ 2-3.) On or about October 10, 2012, Polmax dispatched its local driver, Adam Gadek (“Gadek”), to pick up the trailer and deliver it to the Polmax terminal in Markham, Illinois. (Id. 2, ¶ 4.) Gadek, who had been driving commercial vehicles for about thirty years and had worked for Polmax for two years, has no recollection of the load at issue, but he signed a bill of lading for the subject load indicating that he picked up the load on October 10, 2012. (Id. 2, ¶ 5-6.) Oscar Lopez, an Orbis employee, also initialed the bill of lading for the subject load on October 10. (Id. 3, ¶ 10.) As part of his employment with Polmax, Gadek received and familiarized himself with the Federal Motor Carrier Safety Regulations (“FMCSR”). (Id. 2, ¶ 5-6.) Polmax drivers are required to use load locks, security bars, or other securement measures, including plastic wrapping, to prevent the loads from shifting during transport. (Id. 2, ¶¶ 8-9.)

         Based upon the bill of lading and the size of the trailer, there were approximately thirty inches between the end of the load and the rear doors of the trailer. (Id. 3, ¶ 11.) The load at issue in this case was a sealed load of black plastic pallets that were 48 x 48 inches and weighed 30-40 pounds. (Id. 6, ¶ 4.) There were 44 cubes, each containing 14 pallets, and they were loaded in 22 stacks of 28 pallets. (Id.) Each stack consisted of 2 cubes with one cube of 14 pallets on top of another. (Id.) There was plastic-like banding around the stacks of pallets. (Id.) The trailer was 53 feet long, leaving 30 inches between the load of pallets and the rear door. (Id.)

         Orbis typically loads the trailers and does not allow drivers on the loading dock during the fork-lift loading of the trailers, however, drivers are permitted to stand near the shipping desk, which is about fifty feet away from the loading dock, and watch their trailers being loaded. (Kucharski's Statement of Facts 3, ¶ 12; R. 95, Ex. F, Dep. of Thomas Young 20: 17-25, 46: 5-22.) Loads must be secured because a load can shift while in transit and securement devices can prevent a load from falling out of the rear doors when the driver opens them. (Kucharski's Statement of Facts 7, ¶ 7.) The loading procedures, contained in the “Order Picking and Shipping” document, indicate that the loader is responsible for ensuring that the load is secured within the trailer. (Id. 6, ¶ 6.) Witnesses, however, offered inconsistent testimony about who has ultimate responsibility for securing the load. Lopez testified, for example, that it is not the loader's job to secure the load with securement devices. (R. 95, Ex. B, Dep. of Oscar Lopez 18: 6-12.) Despite saying that it was not the loader's job, Lopez explained that when the loading docks are busy, Lopez will put the securement straps or locks in place himself to speed up the loading process. (Id. 18: 16-24.) Lopez estimated that he did this once or twice a week. (Id. 19: 2.) Gadek testified that the shipper is responsible for loading the truck and securing the load with straps, but he also testified that the driver is “supposed to secure the freight” so it does not fall inside the truck. (R. 95, Ex. C, Dep. of Adam Gadek, 40: 18-20; 32: 16-18.) Gadek stated that he always kept a few straps inside the trailer so he could provide them to the shipper to secure the freight. (Id. 30: 17-21.)

         Lopez also testified that interlocked loads, such as the load in this case, are very secure and even if one of the legs jump out of the securement device, the load itself would still be secure. (Id. 36: 3-16.) Shrink wrap can also be used, at the discretion of the loader, to bind the two cubes of pallets closest to the rear door together and prevent them from moving while a truck was in transit. (Dep. of Thomas Young, 29: 17-19; 30: 5-7.) If the loader decided to shrink wrap the load, the loader would use the shrink wrap machine, which was located near the loading dock, to wrap the load in industrial grade Saran wrap during the loading process. (Kucharski's Statement of Facts, 8, ¶ 10.) If a load was wrapped, the loader would place a W on the bill of lading indicating as such. (Id.) The bill of lading for the load at issue in this case did not contain a W, indicating that the load was not shrink wrapped. (Id.)

         Thomas Young, an Orbis employee, explained that loaders used either bands or shrink wrap to secure the loads, and that decision was a “personal preference”-each method had “about the same effect.” (Id. 58: 1-7.) Young did state, however, that using shrink wrap was the safest method of securing the last two cubes of pallets when there was space at the back of the trailer between the pallets and the rear doors. (Id. 34: 15-20; 38: 1-3.) He testified that if there was any space between the load and the rear of the trailer, the best practice was to secure the load with shrink wrap. (Id. 35: 10-12.) If the trailer was full and the load went completely up to the rear door, however, shrink wrap was not necessary because there was no space for load movement in the trailer. (Id. 34: 21-25; 35: 1-3.)

         Once the loading is complete and the forklift is no longer in use, drivers are permitted to approach the rear of the trailer and affix securement devices such as load locks, straps, or bars. (Dep. of Thomas Young 46-47.) Drivers, however, sometimes do not go to the dock area to check the back of the trailer after the load is complete. (Dep. of Oscar Lopez 17: 19-24.) Oscar Lopez estimated that approximately 50% of drivers go to the rear of the trailers to check the loads after they have been loaded. (Id.) After the trailer is loaded, the driver receives a green light, indicating that it is safe to pull away from the loading dock and close the rear trailer doors. (Kucharski's Statement of Facts, 3, ¶¶ 15-16.) The doors cannot be closed while the trailer is positioned at the loading dock. (Id. 3, ¶ 16.) After the driver pulls away from the dock, drivers typically walk around to the back of the vehicle and close the rear doors and then the shipper seals the doors shut. (Id. 9, ¶ 14.) When closing the doors, drivers are able to view the load from the ground level. (R. 95, Ex. C, Dep. of Adam Gadek 42: 3.)

         II. The Accident

         Kucharski picked up the sealed trailer at the Polmax terminal in Markham and proceeded to drive for two days, arriving in Laredo, Texas on October 15, 2012. (Kucharski's Statement of Facts, 4, ¶¶ 19-20.) Kucharski did not open the sealed rear doors until arriving in Laredo. (Id. 4, ¶ 21.) When he arrived in Laredo, Kucharski first opened the right rear door of the truck. (Id. 5, ¶ 1.) Kucharski testified that when he opened the right rear door, he noticed that the pallets were banded together by metal bands, but he did not notice any additional securement devices. (R. 95, Ex. E, Dep. of Jerzy Kucharski 66: 6-20.) Although it was dark inside the trailer, Kucharski saw the pallets and “everything looked okay” to him. (Id. 63: 4-15.) Kucharski then opened the left side rear door, by pulling down on the latch with substantial force. (Id. 76: 10-16.) Once Kucharski started to open the door, the door immediately started to open and push him back. (Id. 72: 2-10.) He tried to hold the door in place, but quickly lost control of the door. (Id. 72: 8-14.) Kucharski testified that after losing control of the door, the door burst open, and five or six of the pallets fell on him. (Id. 68: 18-22; 69: 6-8.) Kucharski believes that the pallets must have tipped over while in the back of the trailer. (Id. 62: 19-22.) He recalled a band that may have been holding the pallets together dangling close to his body after he fell and he believes that the pallets were not banded together when he opened the door. (Id. 70: 11-15, 22-24.)


         I. Legal Standard

         “Federal Rule of Evidence 702 and Daubert . . . govern the admission of expert testimony in federal courts.” C.W. ex rel. Wood v. Textron, Inc., 807 F.3d 827, 834 (7th Cir. 2015). “The rubric for evaluating the admissibility of expert evidence considers whether the expert was qualified, whether his methodology was scientifically reliable, and whether the testimony would have assisted the trier of fact in understanding the evidence or in determining the fact in issue.” Hartman v. EBSCO Indus., Inc., 758 F.3d 810, 817 (7th Cir. 2014); see also Higgins v. Koch Dev. Corp., 794 F.3d 697, 704 (7th Cir. 2015) (“Rule 702 and Daubert require the district court to determine whether proposed expert testimony is both relevant and reliable.”). Although the Seventh Circuit reviews “the district court's application of Daubert [ ] de novo, ” if “the court adhered to the Daubert framework, then its decision on admissibility is reviewed for abuse of discretion.” Estate of Stuller v. United States, 811 F.3d 890, 895 (7th Cir. 2016).

         Once it is determined that “the proposed expert testimony meets the Daubert threshold of relevance and reliability, the accuracy of the actual evidence is to be tested before the jury with the familiar tools of vigorous cross-examination, presentation of contrary evidence, and careful instruction on the burden of proof.” Lapsley v. Xtek, Inc., 689 F.3d 802, 805 (7th Cir. 2012) (quoting Daubert, 509 U.S. at 596). Daubert lists a number of relevant considerations in evaluating an expert's reasoning and methodology, including testing, peer review, error rates, and acceptability in the relevant scientific community. Daubert, 509 U.S. at 593-94. A district court's inquiry under Daubert, however, is a flexible one and district courts have wide latitude in performing this gate-keeping function. See Kumho Tire Co. v. Carmichael, 526 U.S. 137, 141 (1999); Hartman, 758 F.3d at 818. “Daubert's list of specific factors neither necessarily nor exclusively applies to all experts or in every case.” Kumho, 526 U.S. at 141 (internal quotation omitted). “[T]he key to the gate is not the ultimate correctness of the expert's conclusions, ” rather, “it is the soundness and care with which the expert arrived at her opinion[.]” Wood, 807 F.3d at 834 (quotations and citations omitted). In short, “[i]t is critical under Rule 702 that there be a link between the facts or data the expert has worked with and the conclusion the expert's testimony is intended to support.” United States v. Mamah, 332 F.3d 475, 478 (7th Cir. 2003). “The party offering the expert testimony bears the burden of proving its reliability.” Brown v. Burlington N. Santa Fe Ry. Co., 765 F.3d 765, 772 (7th Cir. 2014).

         II. Analysis

         Plaintiffs disclosed Donald Hess as an expert on the standards governing truck drivers. Hess was a truck driver off and on between 1971 and 1989, and he then became a classroom instructor regarding truck driving. For over a decade he was the director of transportation and public safety programs at John Wood Community College in Quincy, Illinois. Hess has served as an expert witness in over 100 cases in federal and state court. Defendant moves to exclude three specific categories of opinions offered by Hess: (1) that Orbis violated custom and practice in the shipping industry; (2) that Orbis's internal policies imposed a duty on Orbis owed to Kucharski; and (3) that the FMCSR apply to Orbis and create a duty even though Orbis is a shipper and the FMCSR apply only to carriers.

         Before analyzing each opinion, the Court notes, as another court in this district has observed, that “[g]enerally speaking, the fact that Hess has more than 40 years of experience in truck driving, both as a driver and as an instructor, is sufficient to qualify him to testify as an expert in this field.” Ashley v. Schneider Nat'l Carriers, Inc., No. 12-CV-8309, 2016 WL 3125056, at *7 (N.D. Ill. June 3, 2016); see also Smith v. Ford Motor Co., 215 F.3d 713, 718 (7th Cir. 2000) (noting that “Rule 702 specifically contemplates the admission of testimony by experts whose knowledge is based on experience.”). Even a “supremely qualified expert, ” however, “cannot waltz into the courtroom and render opinions unless those opinions are based upon some recognized scientific method.” Smith, 215 F.3d at 718 (quotations omitted). Accordingly, while Hess may be generally qualified to offer expert opinions on the trucking industry, to ensure that Hess's opinions in this case are reliable, the Court must examine his methodologies to ensure that his opinions are reasoned and founded on data. See Metavante Corp. v. Emigrant Sav. Bank, 619 F.3d 748 (7th Cir. 2010) (an expert must “explain the methodologies and principles that support his opinion; he cannot simply assert a bottom line”).

         A. Opinion Regarding Shipping Industry Custom and Practice

         Defendant seeks to exclude Hess's opinions regarding shipping industry customs and practices because, although Hess has experience as a truck driver, he does not have any direct experience in the shipping industry specifically and his opinions are not based on any reliable methodology. Defendant notes that Hess has not inspected the actual pallets or truck at issue in this case and contends that Hess's experience does not provide him with a sufficient basis to offer an opinion as to whether this specific load should have been secured with shrink wrap.

         Despite Defendant's arguments, courts typically allow expert testimony regarding the customs, standards, and practices in a given industry. See, e.g., WH Smith Hotel Servs., Inc. v. Wendy's Int'l, Inc., 25 F.3d 422, 429 (7th Cir. 1994) (affirming admission of expert testimony on customs in the real estate industry); Walker v. Jax Mold & Mach. Ltd., 72 F.3d 131 (6th Cir. 1995) (“Due to their extensive practical experience in the relevant industry, the district court did not err in finding that [the experts] were qualified to provide information on industry standards, nor did the court abuse its discretion in determining that their expert opinions would assist the jury.”) Cage v. City of Chicago, 979 F.Supp.2d 787, 803-04 (N.D. Ill. 2013) (“experts may rely on their professional experience to offer opinion testimony regarding the standard of care and generally-accepted industry standards”); Fed. Ins. Co. v. Arthur Andersen, LLP, No. 03 C 1174, 2006 WL 6555232, at *3 (N.D. Ill. Jan. ...

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