Kirk v. Clark Equip. Co.

• Decision Date: 25 March 2021
• Docket Number: No. 20-2983,20-2983
• Citation: 991 F.3d 865
• Parties: Tyler KIRK and Melissa Kirk, Plaintiffs-Appellants, v. CLARK EQUIPMENT COMPANY, Defendant-Appellee.
• Court: U.S. Court of Appeals — Seventh Circuit

991 F.3d 865

Tyler KIRK and Melissa Kirk, Plaintiffs-Appellants,

v.CLARK EQUIPMENT COMPANY, Defendant-Appellee.

No. 20-2983

United States Court of Appeals, Seventh Circuit.

Argued February 24, 2021

Decided March 25, 2021

Robert B. Patterson, Attorney, LAW OFFICES OF ROBERT B. PATTERSON, LTD, Chicago, IL, for Plaintiffs - Appellants.

Jonathan Garside, Attorney, GREENSFELDER, HEMKER & GALE, P.C., St. Louis, MO, for Defendant - Appellee.

Before Flaum, Manion, and Kanne, Circuit Judges.

Flaum, Circuit Judge.

Tyler Kirk suffered severe injuries to his right lower leg, foot, and ankle when the skid-steer loader he was operating for his employer tipped over. He and his wife, Melissa Kirk (collectively, the "Kirks"), brought a strict-liability action against the loader's manufacturer, defendant-appellee Clark Equipment Company, alleging a design defect and loss of consortium. The district court granted Clark's motions to exclude the testimony of the Kirks’ expert and for summary judgment. The Kirks appealed the district court's order. We now affirm.

I. Background

A. Tyler Kirk's Accident

Tyler Kirk began working at Sterling Steel Company ("Sterling") in 2014. Sterling employed Kirk at its factory in Sterling, Illinois. As part of his work duties, Kirk operated the Bobcat Model S130 Skid-Steer Loader at issue in this suit (the "Loader"). The Loader is a small, compact, and maneuverable wheeled front-end loader. It is primarily used for earthmoving, including digging, carrying, and dumping loose materials with a bucket attachment. Sterling purchased the Loader new in 2008 from a local dealership, rather than directly from Clark. At the time of Kirk's accident, it was equipped with a sixty-two-inch bucket attachment, solid-rubber tires, rear-axle counterweights, and a heavy rear-light guard that was attached post sale. These components increased the Loader's rated operating capacity ("ROC")—the maximum load the Loader can carry safely and stably—to 1,420 lbs.

Kirk regularly used the Loader to clean under roll lines at the factory. He scooped up steel scale, a byproduct of the steel casting process, from the factory's lower level and moved it up a concrete ramp with approximately a thirty-degree in-cline. Other Sterling employees used the Loader to perform the same task, and the record indicates that no significant accidents involving the Loader occurred prior to Kirk's accident.

Kirk's injuries occurred on May 12, 2015, when he operated the Loader to move steel scale from the lower level to the waste pile on the main level. After scraping the scale material from the floor into the bucket, he drove the Loader up the ramp and approached the waste pile. Kirk asserts that the Loader began to wobble and tip forward as he raised the Loader's lift arms, which held the bucket, to dump the scale on the pile. In an effort to stabilize himself, Kirk braced his right foot on the console near the front opening of the Loader's operator cab. His foot slipped out the front of the cab, and he brought the lift-arm cross-member down on it, crushing his foot between the cross-member and the forward structure of the operator cab. Kirk suffered serious injuries to his foot and ankle, requiring multiple surgeries and pro-longed hospitalization and resulting in permanent right leg disability, loss of his job, and medical expenses totaling $433,000.

Kirk testified that no one else witnessed his accident; therefore, the details of the accident come from his account. He testified that he did not know "how full the bucket was or how the load looked" at the time of the accident, other than that it did not look unusually large. He stated that as he approached the waste pile, he raised the bucket to about chest height, he could see beneath the bucket, and the load may have extended over the top of the bucket.

B. Procedural Background

The Kirks filed a two-count complaint against Clark, alleging that Clark was strictly liable for Tyler Kirk's injuries and for Melissa Kirk's loss of consortium. They alleged that the Loader that Clark manufactured and sold to Sterling was in a dangerous, unsafe, and defective condition for its foreseeable use because the Loader had a propensity to tip forward when a sixty-two-inch bucket was used to carry a heavy, dense load such as steel scale. In bringing their claims, the Kirks invoked theories under Illinois law known as the consumer expectations test and the risk-utility test. Clark responded by filing a third-party complaint against Sterling for contribution or indemnity.

The Kirks retained only one expert witness: Daniel Pacheco. Pacheco has been employed in engineering positions since 1964 and licensed as a professional engineer since 1970. Pacheco, as President of Polytechnic, Inc., since 1989, provides forensic engineering analyses of mechanical engineering issues, including evaluation of the design and implementation of material-handling equipment.

In his expert report, Pacheco rendered opinions on design flaw and causation. Regarding design, he opined that the Loader was "unreasonably dangerous for its intended and foreseeable use because it had the innate propensity to not perform as the consumer/operator would expect." He also stated his opinion that the Loader's "design providing for the use of the [sixty-two-inch low-profile] bucket ... made it highly likely, if not certain, that the bucket would be loaded in excess of the loader's Rated Operating Capacity of 1300/1400 lbs." He contended that limiting the bucket to a fifty-four-inch capacity "would have prevented exceeding the Rated Operating Capacity ... and prevented the tip forward at the time of Mr. Kirk's injury."

Regarding causation, Pacheco opined that the "unreasonably dangerous condition" of the Loader equipped with the sixty-two inch bucket "directly contributed to cause the leg injury suffered by Tyler Kirk because the sudden tip forward resulted in Mr. Kirk's proper attempt to lower the bucket while his leg was instinctively and inadvertently positioned in the zone where it was crushed between the descending lift arm cross member and loader frame."

At the close of discovery, Clark moved to exclude Pacheco's testimony and for summary judgment. Clark argued that Pacheco's proffered opinions did not meet the standards for admissibility under Federal Rule of Evidence 702. It further argued that without his testimony or the testimony of another expert, the Kirks could not prove the essential elements of their claims. The district court granted both motions, concluding that Pacheco's opinions did not meet the standards laid out in Rule 702 and the Supreme Court's decision in Daubert v. Merrell Dow Pharmaceuticals, Inc. , 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993). The district court dismissed Clark's third-party complaint against Sterling as moot.¹ The Kirks then appealed.

II. Discussion

On appeal, the Kirks challenge the district court's granting of Clark's motions to exclude and for summary judgment. We begin our analysis with the motion to exclude before proceeding to the summary judgment motion.

A. Exclusion of Pacheco's Testimony

The Kirks first appeal the exclusion of Pacheco's testimony. Rule 702 and Daubert govern the admissibility of expert testimony. Haley v. Kolbe & Kolbe Millwork Co. , 863 F.3d 600, 611 (7th Cir. 2017). Rule 702 provides that a witness "qualified as an expert by knowledge, skill, experience, training, or education may testify" if:

(a) the expert's scientific, technical, or other specialized knowledge will help the trier of fact to understand the evidence or to determine a fact in issue;

(b) the testimony is based on sufficient facts or data;

(c) the testimony is the product of reliable principles and methods; and

(d) the expert has reliably applied the principles and methods to the facts of the case.

Fed. R. Evid. 702.

In Daubert , the Supreme Court explained that Rule 702 confides to the district court a gatekeeping responsibility to ensure that the proposed expert testimony "is not only relevant, but reliable." 509 U.S. at 589, 113 S.Ct. 2786. In performing this role, the district court must engage in a three-step analysis, evaluating: "(1) the proffered expert's qualifications; (2) the reliability of the expert's methodology; and (3) the relevance of the expert's testimony." Gopalratnam v. Hewlett-Packard Co. , 877 F.3d 771, 779 (7th Cir. 2017) (emphasis omitted). Clark challenged, and the district court's order addressed, only the second step—the reliability of Pacheco's testimony.

When, as here, a party challenges a district court's exclusion of an expert, our review proceeds in two steps. Timm v. Goodyear Dunlop Tires N. Am., Ltd. , 932 F.3d 986, 993–94 (7th Cir. 2019). "We review de novo whether a district judge has followed Rule 702 and Daubert ." Haley , 863 F.3d at 611. If the court correctly "applied the Rule 702/ Daubert framework, we review [its] decision to admit or exclude expert testimony for abuse of discretion." Id. Under that standard, "[s]o long as the district court adhered to Daubert ’s requirements, we shall not ‘disturb the district court's findings unless they are manifestly erroneous.’ " Naeem v. McKesson Drug Co. , 444 F.3d 593, 607–08 (7th Cir. 2006) (citation omitted). If, however, "the district court failed to conduct a Daubert analysis, then we review de novo whether the expert's testimony was admissible under Federal Rule of Evidence 702." United States v. Adame , 827 F.3d 637, 645 (7th Cir. 2016).

1. Applicable Standard of Review

We conclude that the district court adequately performed the Daubert analysis. "To apply the proper legal standard, ‘judges merely need to follow Daubert in making a Rule 702 determination.’ " Gopalratnam , 877 F.3d at 782 (quoting Naeem , 444 F.3d at 608 ). A court, however, "must provide more than just conclusory statements of admissibility or inadmissibility to show that it adequately performed its gatekeeping function." Gayton v. McCoy , 593 F.3d 610, 616 (7th Cir. 201...