MEMORANDUM OPINION AND ORDER
Plaintiff Gregory Schuring and his spouse, Mary Schuring, brought this action against Defendant Cottrell, Inc.
BACKGROUND
The parties do not dispute the below facts unless otherwise noted.
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
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, 113.) 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 Schur-ing, 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, 111.) 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.)
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 Ger-non 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 Cott-rell’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 Cott-rell’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.,
In evaluating whether an expert’s proposed testimony meets the Dau-bert standard, the Court “scrutinize^] 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,
Courts apply the Daubert framework to Rule 702 using a three-part analysis. Myers v. Ill. Cent. R.R. Co.,
B. Daubert analysis
1. Qualifications
Cottrell first argues that Gernon does not qualify to give the opinions he offers because his expertise does not prepare him to speak on the matters at issue in this case. Gernon testified that he does not hold himself out as an expert with regards to the “automobile transport industry” or the “design and manufacture of automobile transport trailers.” (Dkt. 98, at 5; Dkt. 105-7, at 55, 216:18-217.) Asked if he held himself out as a “fall protection or prevention expert,” Gernon replied, “Not particularly.” (Dkt. 98, at 5; Dkt. 105-7, at 26, 100:21-23.) He also confirmed that he had never worked for a car hauler designer, hauled ears, consulted for a car hauling company, designed any part of any automobile transport trailer, nor consulted with .'anyone regarding the design of such a trailer. (Dkt. 98, at 5; Dkt. 105-7, at 121:17-122:15.) He never witnessed the model of this Cottrell rig in operation. (Dkt. 98, at 5; Dkt. 105-7, at 75, 4:24,) Moreover, he could not speak to specifics about the federal regulations restricting truck dimensions or drivers’ union agreements. (Dkt. 98, at 5: Dkt. 105-7, at 212:18-214:21; 215:14-216:17.)
While Gernon’s answers affect the weight of his credibility, Cottrell mis-eharacterizes the Daubert inquiry. Courts do not necessarily require an expert witness to possess specialized expertise with an industry or product. Rather, courts ask whether his qualifications “provide a foundation for [him] to answer a specific question.” See Gayton v. McCoy,
The parties do not dispute Gernon’s expertise as a forensic mechanical engineer. He holds a graduate degree in mechanical engineering and has managed or engineered such projects for forty-eight years. (See Dkt. 105-9, at 1.) Gernon’s experience includes mechanical puzzles of far greater complexity than safety mechanisms for trucking rigs, such as converting a chemical and biological weapons production facility into a center for cancer research and designing devices to test the engines of tanks and helicopters used in Operation Desert Storm. (See id., at 1.) Nothing in
Of course, a mechanical engineer does not necessarily qualify to speak to all product design questions. See Gayton,
Gemon’s testimony more closely resembles that of the expert offered in Lott, who qualified to testify even without experience specific to the waste disposal system at issue. See e.g., Lott,
2. Reliability of Methodology
Cottrell next argues that Gemon does not employ a reliable methodology for discerning the opinions he offers, given that he does not test any alternative design to support his opinions about the unreasonable danger imposed by the rig as designed. (Dkt. 98, at 8-9.) Gernon admits that he did not test his theories about a grab-bar or the Sure Footing mechanism, two of the safety features about which he opines in his report. (Dkt. 105-6, at 3-6;
Courts value the testing of alternative designs to form the basis of opinions offered about them in product defect cases. See Bielskis,
More accurately, Daubert looks to whether the theory has been or can be tested.
Much like in Hasan, the plaintiffs here seek to admit Gernon’s opinions that the Cottrell rig in question provided unreasonably dangerous inadequate fall protection mechanisms -in spots where the design could have included a catwalk, grab-bars, interconnecting cables, a moving safety platform, and a moveable safety platform. (See Dkt. 105-6, at 3-6.) See e.g., Hasan,
Testing alternative designs strengthens the reliability of an expert’s opinions, but the Court questions the utility of doing so here relative to the .inevitable expense. Gernon’s opinions do not point to novel safety features whose approximate costs and benefits remain unknown to the Defendants. Instead, Gernon opines that Cottrell should have been more generous and strategic ’ with fall protection safety mechanisms similar to those that the'company already has in place on the rig, which were presumably the product of reliable principles and methods before they were installed. (See Dkt. 105-6, at 3-9.) See e.g., Lott,
Regardless of whether an expert conducts testing, in a defective design case, an expert opining about alternatives must look to a combination of factors to determine the appropriateness of that design, including its compatibility with the existing product and the comparative installation and maintenance costs. See Dhillon,
Accordingly, Gernon approaches his theories with an intellectual rigor like others in his field, even without testing the designs about which he opines. See Daubert,
3. Helpfulness to the Trier of Fact
Because the Court finds Gernon qualified and his opinions sufficiently reliable, it must assess whether the expert’s proposed testimony will assist the trier of fact in understanding the evidence or determining a factual issue. See Fed. R. Evid. 702; Myers,
The Defendant only argues that Ger-non’s testimony is not relevant because he cannot establish that the design of the Cottrell rig likely caused the incident as opposed to a “series of intervening intentional misuse and events.” (Dkt. 98, at 10.) Cottrell relies on Rodriguez, where the court did not hold a handgun manufacturer liable for a product defect because the court found that a fight, not the gun’s defect, had proximately caused the plaintiffs injuries. See e.g., Rodriguez v. Glock, Inc.,
A. Legal Standard
The Court proceeds to consider Cott-rell’s Motion for Summary Judgment, which it argues will succeed even if the Court considers Gernon’s testimony. “The court shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). Whether a fact is material depends on the underlying substantive law that governs the dispute. Carroll v. Lynch,
B. Product Defect
Cottrell argues that it is entitled to summary judgment because Plaintiffs do not conduct a risk-utility test to establish a defect with the Cottrell rig, as required to show strict product liability in Illinois. (Dkt. 95, at 2.) Plaintiffs argue that Cottrell views this analysis too narrowly, saying that they have sufficient evidence to reach a jury under the consumer expectation test, which provides a type of risk-utility test under Illinois product liability law. (Dkt. 104, at 7.) Neither states the law precisely. Rather, the consumer-expectation perspective provides but one factor among many that can be considered within the risk-utility test, and alone can form the basis of proof or theory for a case. See Show,
Cottrell predicates its argument on the assertion that Gernon does not conduct any risk-utility analysis, as stated in his
Q: Did you conduct any type of risk utility analysis with regard to... the design of the rig that Mr. Schuring was using at the time of his accident?
A: As depicted here.
Q: Correct.
A: No..In other words, .you’re—you’re not referring to the modifications I suggested. In other words, you’re—you’re referring to it as—
Q: As it was the day of this accident.
A: Yeah. And—And as provided to him by the retrofit— :
Q: Yeah.
A: —From—
Q: As it was the day of the accident.
A: Right. No.
(Id.) Gernon clarified that counsel’s question did not refer to Opinions 1-4 of his report on suggested safety mechanism's, but only to the overall design of the rig; which most closely relates to Opinion 5. (See Dkt. 105-6, at 3-6.) Even then, the question broadly refers to the design of the rig as a whole, whereas Gernon only opines that the design requires multiple trips from ground level to the upper deck in order to comply with the unloading instructions that Cottrell recommends. (See id,, at 6.) Gernon does not so clearly state, as Cottrell’s argument suggests, that he failed to conduct any risk-utility analysis.
What is true, as Cottrell further points out, is that Gernon does not consider several of the above risk-utility factors. His report does not explicitly account for consumer expectations; product instructions and warnings, or the range of similar available products. See Show,
Lastly, while the risk-utility analysis does rely oh expert opinion as a component needed to establish a complex product’s unreasonable dangerousness through a risk-utility approach, the law does not therefore require the expert to shoulder the overall analysis. Rathér, that responsibility remains with the plaintiff, who must establish sufficient risk-utility evidence in the record. See Show,
C. Causation
Cottrell also contends that no genuine issue of material fact remains such that Plaintiffs can show causation as a matter of law, given intervening, unforeseeable factors that led to Plaintiffs’ inju-ríes. (Dkt. 95, at 4.) Cottrell concedes that Plaintiffs show but-for causation. (“Causation in fact, however, is not the issue here...”) (Id,, at 6.) But Cottrell contests that Plaintiffs can show proximate cause.
To survive summary judgment in a strict product liability or negligence case, a plaintiff must point to relevant, outstanding factual issues that could show with reasonable certainty that the product’s defect caused the injury. See e.g., Stallings v. Black & Decker Corp., No. 06 C 4078-JPG,
• Indeed, Cottrell concedes that “the issue of proximate cause is generally one of fact for the jury...” (Dkt. 95, at 7.) Although Cottrell paints the events leading up to Schuring’s injury as a veritable Rube Goldberg machine of unexpected cause and effect, enough material facts exist on the record and remain in dispute such that more than one' conclusion about causation could be reasonably drawn, thus precluding summary judgment. Cottrell offers one conclusion: that Schuring failed to properly lower the upper deck to unload, to inspect for hydraulic fluid, and to watch his footing, all of which resulted in the extraordinary circumstance of Schuring slipping upside down, after which Schuring intentionally decided to extricate himself by wiggling his lodged right foot free, which led to him falling and injuring himself. (Id., at 4.) In this narrative, Cottrell points to each of Schuring’s decisions as unforeseeable and out of Cottrell’s control, which would not allow the Plaintiffs to demonstrate proximate cause.
However, the Plaintiffs raise a number of disputed facts that affect whether a reasonable trier of fact could find proximate cause. For example, the parties dispute whether Schuring slipped in hydraulic fluid or another substance (see Dkt. 107, ¶ 13; Dkt. 105-7, at 36, 139:4-140:25), which could contribute to a factfinder’s understanding about whether or not Cott-rell could foresee the incident, depending on whether the fluid was commonly found on the upper decks of trucking rigs and whether the design of the rig accounts for this. They also dispute whether it wopld have been feasible for Gottrell to add the safety mechanisms in question, particularly before the time of Schuring’s fall in September 2011. (See Dkt. 109, ¶ 18.) Specifically, Cottrell points to testimony from Hanks about whether or not-that technology could have been fitted to the rig used by Schuring before September 2011 because Hanks says the first version would not have fit the rig at issue while the second version did not develop until 2012. (See id.; DR 105-8, at 11-15, 35:19-36:1; 52:9-15). However, Hanks also says that Sure Footing can modify any car hauler to fit the moveable platform system. (See id. at 10, 31:14-33:13; at 11, 35:4-12.) Sure Footing had even entered negotiations with Cottrell in June or July of 2011, a couple of months before Schuring’s fall, to discuss whether to add the mechanism to Cottrell rigs. (See id., at 11-12, 37:14-41:5.) The answer goes to the feasibility of adding the safety mechanisms in question before Sehuring’s fall, specifically Sure Footing movable platforms, which a fact-finder needs to determine whether a condition existed that led to the fall, and whether the defendant could have foreseen the fall.
Perhaps most critically, the parties dispute whether Schuring “chose” to fall by not lowering the upper deck before unloading, by failing to see the fluid on which he slipped, and finally by dislodging his foot in order to free himself. (See Dkt. 107, at ¶¶ 11,17, 21.) Cottrell points to Schuring’s contemplation as evidence of his multiple options through which his choice to free his foot breaks the chain of proximate
Each of these disputed facts speaks to the foreseeability of the incident, and thus all are material. Other questions of foreseeability remain, such as whether Schur-ing knew or should have known about the dangers that drivers encountered while unloading cars from double-decker rigs, especially in light of the fatalities that prompted Cottrell’s retrofitting some but not all of the upper deck’s positions. (Dkt. 105-8, at 6, 15:. 7-21; Dkt. 105-4, at 10-11, 32:14-36:23; Dkt. 107, ¶ 6; Dkt. 109, ¶¶ 1, 3, 5.)
These outstanding findings of fact are needed to decide whether Schuring’s fall constitutes a natural and continuous consequence of Cottrell’s rig design. See e.g., Hill,
CONCLUSION
For these reasons, the Court denies Cottrell’s Motion to Bar Plaintiffs’ Expert [97] and denies its Motion for Summary Judgment [94] against the Schurings for Counts I-IV and XIII of their Complaint.
Notes
. Plaintiffs also brought this action against Cassens Corporation, which remains a party to this suit but does not present motions contemplated by this Order. The parties do not dispute that the Schurings and Cassens Corporation have reached a resolution of this claim. (Dkt. 107, ¶ 3.)
. The parties dispute whether Schuring "chose” to walk between these two positions, or whether he needed to do so based on the design of the trucking rig. (See Dkt. 107, ¶ 11.)
. Cottrell disputes Plaintiffs’ assertion that Schuring “gripped the grab bar adjacent to [the No, 10] position” because Schuring does not use the term "grab bar” in his deposition. (Dkt. 109, ¶ 6; Dkt. 105-2, at 156:3-7.) Schuring demurs the use of the term he employs: "My right hand was on that No. 10, the third, whatever you want to refer to, handrail..,” (Dkt. 105-2, at 156:3-4.) The parties and record do not give the Court reason to believe that the different terms refer to different components of the truck, so the Court construes Schuring’s statement, whether a handrail or grab-bar, as undisputedly referring to the same part of the truck.
. In its response to Plaintiffs’ additional facts that rely in whole or in part on photographs submitted by proffered expert Clarke Gernon, Cottrell objects to the admissibility and consideration of the photographs, stating that they are exhibits to Gernon’s unsworn Rule 26 Report that should be considered hearsay under Estate of Brown v. Thomas,
. The parties also dispute whether Schuring "chose” to fall because he contemplated and executed the decision to use his left foot to free his right foot. (Dkt. 107, ¶ 17.)
. In the absence of testing, courts can also weigh whether a theory has been subject to peer review and publication, whether it has a known or potential rate of error, and the extent to which the relevant scientific community accepts the theory. Daubert, 509 U.S. at 593-94,
. Plaintiffs witness Chris Hanlcs testified that he could not fit version one onto a Cottrell rig, (Dkt. 105-8, at 11, 35:14-36:1.)
. Show may even indicate, but does not clearly hold, that the burden of conducting a risk-utility test shifts to the defendant after the plaintiff introduces evidence that shows either the consumer-expectation test or proximate cause. "If the defendant thereafter fails to prove that on balance the benefits of the challenged design outweigh the risk of danger inherent in such designs, the plaintiff will prevail. This test.. .has come to be known as the risk-utility or risk-benefit test.” Show,
. In its Motion for Summary Judgment, Cott-rell does not specify to which of Plaintiffs’ counts this argument applies, (see Dkt. 95, at 4-13) but the Court applies this argument to all of Plaintiffs' counts against Cottrell because each relies on proximate cause as an element. See e.g., Mikolajczyk,
.Plaintiffs also argue in their Response to Defendants' Motion for Summary Judgment that the misuse that Cottrell points out does not provide an affirmative defense to liability under Illinois law. (Dkt.. 104, at 6.) Cottrell concedes as much, and does not assert misuse as an affirmative defense. (Dkt. 110, at 14-15.) The Court therefore considers this argument moot.