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Poulter v. Cottrell, Inc.

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

June 6, 2017

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


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

         Plaintiff John Poulter has moved for a new trial pursuant to Fed.R.Civ.P. 59. He contends that four evidentiary decisions, individually and collectively, so biased his trial that it was incompatible with substantial justice. The rulings were not erroneous and did not, individually or in the aggregate, substantially influence his trial. Therefore, the motion for a new trial is denied. This opinion also addresses Poulter's objections to Cottrell's bill of costs.


         Plaintiff John Poulter was working as a car hauler when he fell off the upper deck of a rig designed by defendant Cottrell, Inc. (“Cottrell”). Poulter argued the rig was defectively designed. The case went to trial in February 2017. After a five day jury trial, the jury found Cottrell not liable. Poulter timely moved for a new trial.

         During pretrial motions, the Court excluded a significant number of Poulter's proposed expert's opinions because the expert (David Kassekert) failed to provide a sufficient basis for his opinions or because the opinions would not be helpful to the trier of fact. See Poulter v. Cottrell, Inc., No. 12 C 01071, 2014 WL 5293595, at *5 (N.D. Ill. June 24, 2014) (“Daubert Order”). The Court allowed, however, testimony regarding “the feasibility of including fall protection features in the design of the rig and the effect of such modifications on maximum width requirements” with a note that “his testimony may not exceed the scope already disclosed.” Id. Also before trial, the Court also denied several of Poulter's motions in limine, which are discussed in more detail below.

         At trial, Poulter introduced evidence, including the testimony of several Cottrell employees, for the purpose of showing that the company was aware of the potential risk of employees falling off of rigs while working on the upper deck. He also introduced substantial medical evidence of his injuries from doctors and family members. Poulter himself testified about what happened on the day of the fall. Cottrell argued that the rig was not defectively designed and that the fall had been caused by ice on the rig, Poulter's worn out shoes, Poulter's failure to follow safety rules, or some combination of those factors. Cottrell introduced medical testimony and expert testimony regarding safety engineering and weather, as well as testimony from Poulter's supervisor. The parties stipulated that Poulter's proposed alternative design, which incorporated several fall protection measures, was legally, financially, and technically feasible.


         A new trial is appropriate if “the jury's verdict is against the manifest weight of the evidence or if the trial was in some way unfair to the moving party.” Venson v. Altamirano, 749 F.3d 641, 656 (7th Cir. 2014). Poulter does not contend that the jury's verdict was against the weight of the evidence, but rather that four evidentiary decisions rendered the trial unfair. Even if a court's evidentiary ruling was erroneous, that is grounds for a new trial (individually or collectively) only if “in light of the entire record, ” there is “a significant chance that the error affected the jury's verdict.” Barber v. City of Chicago, 725 F.3d 702, 715 (7th Cir. 2013). The Court must also consider the “efficacy of any remedial measures” and the strength of the defendant's case. Christmas v. City of Chicago, 682 F.3d 632, 643 (7th Cir. 2012).

         Here, Poulter claims four of the Court's evidentiary decisions were erroneous. First, he argues expert David Kassekert's testimony was limited at trial beyond the Court's initial Daubert Order. Next, he argues the Court erroneously allowed testimony regarding the collective bargaining agreement (“CBA”) between the Teamsters' Union and Poulter's employer (Cassens). Third, Poulter contends that the Court should not have allowed testimony that Cassens did not ask Cottrell to install (at the time of manufacture or at the time a retrofit kit was made available) various fall protection devices. Finally, he argues that the Court should have allowed questioning of Cottrell's general counsel regarding a report that acknowledged a risk of falling from the upper deck. None of these contentions is meritorious.[1]

         I. Kassekert's Testimony

         In the 2014 Daubert Order, the Court limited Poulter's expert to testifying “about the feasibility of including fall protection features in the design of the rig and the effect of such modifications on maximum width requirements.” Daubert Order, 2014 WL 5293595 at *5. Poulter does not appear to challenge the merits of that limitation; rather, he objects that Kassekert's testimony was restricted further at trial. Just before trial, the parties agreed to a stipulation that the fall protection features about which Kassekert was going to testify were technically, economically, and legally feasible. See Tr. 261:15-262:17, Feb. 14, 2017. This stipulation rendered both opinions Kassekert was allowed to give superfluous, as they had already been stipulated to and thus rendered “within the average juror's comprehension.” See Ancho v. Pentek Corp., 157 F.3d 512, 519 (7th Cir. 1998). In discussion with the Court, Poulter's attorney appeared to acknowledge that given the scope of the stipulation and the Daubert ruling, the only use of Kassekert's testimony would be to describe the safety features discussed in the stipulation. See Tr. 111:3-113:16, Feb. 14, 2017. Kassekert did so, drawing each safety feature on photographs and explaining how it could be implemented. This was in no way a reversal of the Court's earlier opinion, which explicitly barred evidence of causation and only allowed useful information about feasibility. Daubert Order, 2014 WL 5293595 at *5. The entire point of the section of the Daubert Order on which Poulter relies was that Kassekert's testimony regarding the potential safety features could illustrate the safety features and therefore their relationship to the alleged defect. Poulter's claim that “Kassekert was not permitted to testify regarding his analysis of photographs of the relevant equipment or to explain why, in his opinion, the proffered safety features were feasible, ” Mot. at 4, ECF No. 242, is simply wrong. Kassekert was allowed both to illustrate and explain those safety features to the jury. See Tr. 112:20-113:13, Feb. 14, 2017 (“if you want to call Mr. Kassekert to . . . illustrate that on a photograph or whatever . . . you can do that much”); id. at 269:20-75:6 (Kassekert drawing illustrating on photographs the precise locations where feasible safety features could have been added). To the extent that Poulter maintains that Kassekert should have been permitted to opine that the design was defective without the missing safety features, the Daubert Order (at *5) explained that Kassekert had failed to provide an adequate basis to opine that the design of the rig was defective without the addition of those safety features and the limitations imposed on Kassekert's testimony at trial were consistent with that ruling; certainly the Court did not “reverse itself” in that regard.[2] Based on pretrial rulings adverse to the defendant, Cottrell agreed to a stipulation as to the feasibility of adding all of the safety features that Kassekert identified as feasible in his report. Given that stipulation, Poulter got every ounce of mileage from Kassekert's testimony that he could have; further testimony regarding the feasibility and legality of the safety features would have been superfluous and would not have swayed the jury.[3]

         Poulter also appears to contest that Kassekert's background was erroneously limited despite the brief scope of his anticipated testimony. Poulter alleges this lack of extensive background left the jury with a “gap in understanding why [Kassekert] was testifying about the three safety features at all.” Mot. at 5 ECF No. 242. Kassekert, however, provided plenty of detail about his education and work experience, including his experience designing ladders. See Tr. 263:14-267:14, Feb. 14, 2017. The testimony provided ample background for the jury to understand why he would be qualified to describe the fall protection features. Further background information would likely be cumulative, and certainly would not have presented a significant chance of swaying the jury's verdict.

         II. CBA and Retrofit Kit

         Under Kentucky law (the applicable law in this case), a manufacturer has a “non-delegable duty to provide a product reasonably safe for its foreseeable uses.” Montgomery Elevator Co. v. McCullough, 676 S.W.2d 776, 782 (Ky. 1984). A defendant may, however, present evidence of industry practice to demonstrate whether or not the product was in fact reasonably safe. Toyota Motor Corp. v. Gregory, 136 S.W.3d 35, 40 (Ky. 2004). This is sensible, as defectiveness means that “the product does not meet the ...

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