447 F.3d 510 (7th Cir. 2006), 04-2882, Andrews v. E.I. Du Pont De Nemours and Co.
|Citation:||447 F.3d 510|
|Party Name:||Steven G. ANDREWS, Plaintiff-Appellant, v. E.I. DU PONT DE NEMOURS AND COMPANY, Defendant/Third-Party Plaintiff-Appellee, and Canada Maritime Limited, a foreign limited liability company, and Adrian Carriers, Incorporated, an Iowa corporation, Third-Party Defendants-Appellees.|
|Case Date:||May 05, 2006|
|Court:||United States Courts of Appeals, Court of Appeals for the Seventh Circuit|
Argued Sept. 7, 2005.
Appeal from the United States District Court for the Central District of Illinois. No. 02 C 4032Joe Billy McDade, Judge.
[Copyrighted Material Omitted]
Stephen T. Fieweger, Andrew M. Rink (argued), Katz, Huntoon & Fieweger, Moline, IL, for Plaintiff-Appellant.
Raymond M. Ripple (argued), E I Du Pont De Nemours & Company, Wilmington, DE, Kevin L. Halligan, Bush, Motto, Creen & Koury, Davenport, IA, Jason J. O'Rourke, Lane & Waterman, Rock Island, IL, for Defendants-Appellees.
Before Cudahy, Manion, and Sykes, Circuit Judges.
Sykes, Circuit Judge.
Steven Andrews ("Andrews") was transporting thousands of pounds of ink for E.I. du Pont de Nemours and Company ("DuPont") when his truck tipped over on a highway ramp. Andrews sued DuPont for negligently loading the truck. When DuPont won a summary judgment, Andrews moved the district court to alter or amend its judgment under Rule 59(e) of the Federal Rules of Civil Procedure. That request tolled the time for appealing. See Fed. R. App. P. 4(a)(4)(A). Once the district court denied Andrews' motion, the thirty-day clock for appealing began. Id. Andrews asked the district court to reconsider once again. His second request came more than ten days after the entry of judgment, however, which is too late. See Fed.R.Civ.P. 59(e). Andrews did not see it that way. He read the district court's denial of the first Rule 59(e) motion as a new basis for the summary judgment, and thus a new judgment. Andrews maintained that his new Rule 59(e) motion came within ten days of the new judgment. The district court disagreed. It explained that there was nothing new in its denial of the first Rule 59(e) motion and again refused to alter the judgment, this time on the basis that Andrews' motion was not timely. By the time Andrews finally appealed, thirty-five days after the denial of his first Rule 59(e) motion, it was too late to challenge the entire judgment. The question for us is whether the district court properly denied as untimely Andrews' second motion to alter or amend the judgment. We hold that it did.
Andrews was driving a semitrailer filled with eighteen "totes" (a portable tank of sorts) of ink, each containing 1000 liters and weighing about 2420 pounds, when the semi turned over entering a highway in Illinois. The ink belonged to DuPont, which had packed the truck at its Iowa shipping facility. Andrews sued DuPont for injuries he suffered in the accident,
alleging that DuPont negligently loaded the ink totes. Andrews maintained that the totes should have been loaded in a pinwheel fashion inside the trailer and that the totes should have been braced to the side walls. Instead, the totes apparently were stacked. According to Andrews, "stacked totes" is synonymous with "improperly loaded totes," and we can assume as much for purposes of this appeal. Andrews' theory of the case is that as he took the curve to enter the highway, the improperly loaded ink totes shifted to one side of his trailer causing the turnover.
Andrews' claims did not survive summary judgment. Applying Illinois law to this diversity dispute, the district court held that Andrews could not prove his casewhich involves physics questions about a cargo load of liquid ink weighing more than 40,000 pounds, the superelevation1 of highway ramps, and the force needed to move the ink totes out of formationwithout an expert because the facts and issues are outside the experience of the ordinary juror. See generally Baltus v. Weaver Div. of Kidde & Co., Inc., 199 Ill.App.3d 821, 145 Ill.Dec. 810, 557 N.E.2d 580, 588 (1990) (discussing when expert testimony is necessary). Andrews offered one expert but because the expert based his calculations on data from the wrong highway ramp, the court concluded that the witness did not pass muster under the test for reliable expert testimony set out in Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993). Without his only expert, Andrews had no way to demonstrate that any negligence on DuPont's part proximately caused the truck to tip over, and the district court granted DuPont summary...
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