Schuring v. Cottrell, Inc.

• Citation: 244 F.Supp.3d 721
• Decision Date: 27 March 2017
• Docket Number: No. 13 C 7142,13 C 7142
• Parties: Gregory SCHURING and Mary Schuring, Plaintiffs, v. COTTRELL, INC. and Casses Corporation, Defendants.
• Court: U.S. District Court — Northern District of Illinois

244 F.Supp.3d 721

Gregory SCHURING and Mary Schuring, Plaintiffs,

v.COTTRELL, INC. and Casses Corporation, Defendants.

No. 13 C 7142

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

Signed March 27, 2017

Edward Roy Moor, Moor Law Office, P.C., Frank James Dermody, Kyle R. Burkhardt, Milo W. Lundblad, Cole Harrison Munvez, David Adam Warnick, Brustin & Lundblad, Ltd., Chicago, IL, for Plaintiffs.

Daniel J. Carpenter, Amy J. Lorenz Moser, Carpenter Moser, LLC, St. Louis, MO, Scott R. Sinson, Bullaro & Carton, P.C., Jennifer Ann Heydemann, Heplerbroom LLC, Chicago, IL, Troy A. Bozarth, Benjamin W. Powell, Hepler Broom LLC, Edwardsville, IL, for 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, 119 S.Ct. 1167, 143 L.Ed.2d 238 (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, 119 S.Ct. 1167 ). 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...