V&M Star Steel v. Centimark Corporation
Filing
OPINION and JUDGMENT filed: The judgment in favor of Centimark is REVERSED and the case is REMANDED for trial. Decision for publication pursuant to local rule 206. Martha Craig Daughtrey, Karen Nelson Moore, and Jane Branstetter Stranch (AUTHORING), Circuit Judges.
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RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit Rule 206
File Name: 12a0109p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
_________________
X
No. 10-3584
v.
>
,
CENTIMARK CORPORATION,
Defendant-Appellee. N
Appeal from the United States District Court
for the Northern District of Ohio at Youngstown.
No. 07-03573—George J. Limbert, Magistrate Judge.
V&M STAR STEEL,
Plaintiff-Appellant,
Argued: June 7, 2011
Decided and Filed: April 25, 2012
Before: DAUGHTREY, MOORE, and STRANCH, Circuit Judges.
_________________
COUNSEL
ARGUED: Eric W. Richardson, VORYS, SATER, SEYMOUR & PEASE LLP,
Cincinnati, Ohio, for Appellant. John P. Liekar, Jr., YUKEVICH, MARCHETTI,
LIEKAR & ZANGRILLI, P.C., Pittsburgh, Pennsylvania, for Appellee. ON BRIEF:
Eric W. Richardson, Daniel J. Buckley, VORYS, SATER, SEYMOUR & PEASE LLP,
Cincinnati, Ohio, Janice T. O’Halloran, STEFANSKI & ASSOCIATES, LLC,
Youngstown, Ohio, for Appellant. John P. Liekar, Jr., YUKEVICH, MARCHETTI,
LIEKAR & ZANGRILLI, P.C., Pittsburgh, Pennsylvania, for Appellee.
_________________
OPINION
_________________
JANE B. STRANCH, Circuit Judge. V&M Star Steel (“V&M”) filed suit against
Centimark Corporation (“Centimark”) alleging breach of contract and negligence after
1
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an incident at its steelwork facility. The district court1 granted summary judgment in
favor of Centimark, ruling that V&M failed to produce sufficient evidence of causation
to sustain either legal claim. Because genuine issues of material fact exist, we
REVERSE the grant of summary judgment for Centimark and REMAND for trial.
I. BACKGROUND
In 2006, V&M entered into a contract with Centimark to replace part of the
corrugated steel roof at V&M’s plant in Youngstown, Ohio. The contract by its express
terms consisted of multiple documents, including the “Construction Services
Agreement” (“the Agreement”), the exhibits with attachments that were referred to in
the Agreement, and Centimark’s “Final 2006 Roof Project Proposal” (“the Proposal”)
dated May 9, 2006.
In Article I.1 of the Agreement, the parties agreed that Centimark would perform
the work described in the Proposal, and the parties referred to that work throughout the
remainder of the Agreement as “the ‘Services.’” The Services included removing and
replacing roofing materials, installing flashing, and cleaning on certain designated
portions of the roof. Article VIII.1 of the Agreement stated that “[t]he standard of care
for all Services provided by [Centimark] to [V&M] shall meet or exceed industry
standards used by members of the construction industry practicing under similar
conditions at the same time and locality.” Centimark warranted that it had the capability,
experience and means necessary to perform the services to the standard of care stated
and in accordance with the terms of the Agreement. Art. VIII.4.
In addition to specifying the standard of care Centimark must meet in performing
the Services, the Agreement also required Centimark to observe V&M’s strict written
safety standards. Those standards were found in Exhibit II to the Agreement, called the
“Invitation to Bid Specifications,” and in Attachment C to that exhibit. Section 2.6,
titled, “Safety,” specified that “[s]trict adherence by [Centimark] personnel to all site . . .
regulations is mandated.” Section 2.6.1 stated that Centimark “shall abide by the V&M
1
The case was heard by a magistrate judge with the consent of the parties.
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Star Construction Safety Program” and section 2.6.2 provided that Centimark “shall
provide” a signed “Contractor Safety Agreement.” In Section 4.9.1, Centimark agreed
to perform all work “in such a manner so as not to disturb continuing operations at the
facility” because no “shut down or outage, beyond those required for routine
maintenance of the operating facilities, is planned for the duration of the project.”
Section 4.9.6 provided that Centimark “shall protect all plant utilities in the Work area.
Any utility damaged by [Centimark] shall be immediately repaired, replaced or restored
to service at [Centimark’s] expense.” Section 4.9.7 provided that Centimark “shall
repair or replace in kind any damage by [Centimark] to [V&M’s] structures not included
in the scope of Work, at no cost to V&M Star.” Section 4.9.8 provided that Centimark
“shall take all necessary precautions for the protection of life and property during its
construction activities. [Centimark] shall be responsible for maintaining the integrity
and stability of adjacent structures . . . resulting from its construction activities.”
Section 26.1 of Attachment C to the “Invitation to Bid Specifications” set forth
numerous “Contractor Safety and Environmental Requirements” V&M required
Centimark to follow. Section 26.1 mandated that “[m]aterials shall be stored and stacked
in a manner that prevents sliding, falling, or collapsing.” V&M granted Centimark, its
employees, and agents reasonable access to the facility to perform the Services only if
they complied with V&M’s safety rules and regulations. Article II.2; Article VIII.6.
Finally, the parties agreed that Centimark “shall be solely responsible for the acts
and omissions of its employees,” as well as others working under Centimark’s direction
in performing the services. Art. VIII.5. Centimark agreed to indemnify and hold V&M
harmless from and against any and all damages incurred by V&M as a result of
Centimark’s negligence or breach of the Agreement. Art. IX.2. In the “Contractor
Safety Agreement” included as part of the contract, Centimark agreed to comply with
all V&M safety rules and regulations and acknowledged that failure to comply with
V&M’s safety rules “shall be grounds for . . . recovery of damages.”
After the contract was executed, Centimark received at V&M’s facility bundles
of various lengths of corrugated steel roofing panels manufactured by Flexospan. Each
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bundle contained approximately 30 panels of roof sheeting. The longer panels were
approximately 21 feet by 6 feet and weighed around 90 pounds each. The bundles were
secured by boards clamped with metal bands. Each bundle weighed between 2,500 and
3,000 pounds.
On Sunday, July 23, 2006, Centimark employees used a crane to lift the bundles
onto those areas of the roof to be replaced, known as A-Bay, B-Bay, and C-Bay. The
roof slope increased from a 3/12 pitch at A-Bay to a 4/12 pitch at C-Bay. On B-Bay and
C-Bay, Centimark employees secured the bundles to the roof by screwing “kickers” to
the perlins in the areas where the bundles were placed parallel to the roof line. Each
bundle was secured by two kickers. On A-Bay, however, no kickers were used, and the
bundles were placed perpendicular to the roof line.
V&M utilizes an overhead crane in A-Bay as part of its normal melt shop
operations. The crane is positioned directly below the roof of A-Bay where Centimark
staged the bundles without kickers.
Centimark employees started replacing the roof as soon as the bundles were
staged. On Thursday, July 27, 2006, employees of both Centimark and Ohio Valley
Sheeting and Painting were working on V&M’s roof in different areas. Ohio Valley had
performed roofing work for V&M for years, but it lost the bid for the roof replacement
project to Centimark. Around 12:20 p.m., Centimark employees quit work due to rain.
The record does not show what time Ohio Valley employees quit work that day. Around
7:00 p.m., a number of roof sheeting panels fell from A-Bay into one of V&M’s
electrical substations located directly below. V&M lost all power to its plant for more
than 30 hours. V&M’s damages for electrical repairs and lost profits was around
$3 million.
After the power went out, Larry Collins, a V&M millwright, and Eric Crowl, of
V&M security, climbed onto the roof to be sure that no more panels would fall onto the
men working below at the substation. Collins testified it was obvious to him that one
bundle of roofing panels had slid down A-Bay so that the bottom board securing the
bundle was trapped in the gutter, and some of the panels were stopped at the gutter, but
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the top board to secure the panels was missing so that the rest of the panels made it to
the substation directly below. Collins found only a few panels from the bundle left on
the roof. Collins did not observe any panels coming all the way out of other bundles
staged on the roof, but he testified that “almost every bundle that was up there was
shifting down. . .[;] this was the only one that actually let go.” Noticing that some of the
bands on the bundles were broken, Collins and Crowl remarked to each other that they
hoped the rest of the bundles would stay on the roof.
Collins further testified that it appeared the roofers walked off the job when it
started to rain without putting away materials or equipment, and “nothing was secured.”
Believing that gravity or the wind had caused the panels to slide from the roof into the
substation, Collins tied rope around two smaller bundles of unsecured roofing panels that
were sitting up on a ledge. He and Crowl also tied down a generator.
Rusty Myers, Centimark’s operations manager, testified consistently with
Collins. Myers and Centimark’s project foreman, Mike Helms, returned to V&M’s plant
shortly after the incident. V&M’s roofing project manager, Justin Littleton, instructed
Myers to secure the loose panels that remained on the roof. Myers testified that
“[d]irectly above the substation you could see more of that bundle of panels sticking into
the gutter up on the roof.” Myers and Helms gathered the remaining panels from the
bundle that slid, pulled them back from the low roof, and put them in a more secure
place on the roof. Myers did not have any kickers to secure the other bundles on A-Bay,
so he removed some of the metal bands from the bundles and screwed them across the
corners of the bundles to secure them to the roof.
During deposition, V&M’s counsel showed Myers photographs depicting
stressed bands on bundles that appeared to be moving downhill on the roof. When asked
if he observed that condition while he was on the roof, Myers answered, “I may very
well have. It’s normal; it’s not abnormal.” Myers acknowledged that a band would
break if a bundle “was on such a steep slope that the panels were to creep to a point” that
the band was stressed. When asked, “See the bundles out of its banding; is that normal
also?” Myers responded, “I’ve seen it before, but not S that’s not as common as the
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previous picture.” Myers testified that he had “most definitely” seen sheets or panels
coming out of bundles, but he stated that the bundles could have arrived from the factory
that way. He thought it “just peculiar” that the bands on the bundle at A-Bay did not
appear to be damaged and that the panels from that bundle had “been wiggled or slid
out.”
Myers later provided Centimark with an affidavit that is inconsistent with his
deposition testimony and with other evidence produced by Centimark. In the affidavit,
Myers averred:
12.
At all times the bundles were completely intact and the
metal straps were secure and tight. No bundle, or individual panel within
a bundle, exhibited any evidence of shifting, sliding or otherwise moving
from the place where any particular bundle was staged on the roof.
There were never any reports that a bundle/strap was loose or that any
bundles/panels were sliding or moving. . . .
16.
It is not necessary to secure bundles until metal straps are
removed which does not occur until a roofing crew is ready to begin
roofing in the area where the bundle is staged. Once a bundle is opened
it is secured by a kicker and, if all panels in the opened bundle are not
used immediately, additional methods are used to secure the panels
overnight.
17.
On July 27, 2006 the subject bundle had not been opened
and it was staged in an area where CentiMark crews were not working
and would not be working for approximately another week.
Centimark produced the expert report of Larry Bajek, a Centimark engineer.
Bajek stated that “[t]here are no national or local standards, practices or customs for the
storage and placement of corrugated panel bundles on a roof. The staging of materials
in process is left up to the site conditions and the individual installation companies.”
Bajek also stated that “[u]ntil the packaging is removed, the panels are secure and do not
require kickers or any other restraining device to prevent sliding.” Bajek reported that
“[p]hotographs and testimony demonstrate that the metal straps around the bundle at
issue remained intact, although at least two of the boards from under the strapping had
been displaced[,]” which he opined required intentional force to remove. Testing done
for Centimark by PSI showed that, if one board was removed from a bundle, the panels
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remained secure and could not be moved with normal human force. After a second
board was removed, the panels could be moved with normal human force, but did not
slide by gravity. After a third board was removed, “the panels slid by gravity, in a
similar fashion to what was found at the accident site.” Bajek stated that “PSI’s testing
confirms that an intentional act was required to compromise the manufacturer’s binding
of the bundles and that a removal of the boards, as seen at the accident site, would cause
the panels to slide.” Centimark asserted that a third party, possibly one or more Ohio
Valley employees, tampered with the bundle at issue, but Centimark acknowledged in
its briefing in the court below that the sabotage theory was speculation.
During their investigation, V&M’s safety director, Chad McClimans, and Justin
Littleton considered whether any of three factors caused the panels to slide from the roof
based on the way the bundles were staged: wind, vibration from V&M’s overhead crane
in A-Bay, or the acts of some person. They ruled out wind because the National
Weather Service reported the wind at only eight miles per hour on the evening of the
incident, but they did not rule out the other two possibilities. McClimans firmly believed
that vibration of V&M’s overhead crane in A-Bay caused the panels to slide on the roof.
He did not believe that anyone would commit sabotage to put people at risk and cause
the amount of damage that occurred.
V&M produced an expert report and affidavit from Daniel C. Mester, a lifelong
member of the Iron Workers Local 17. Mester had forty years of pertinent experience
installing metal roof sheeting. In his opinion, Centimark should have used kickers or
some type of restraining device to secure the bundles staged on A-Bay because the use
of kickers is a “normal and common procedure” any time material is placed on a sloped
surface. Mester explained that the metal bands could not be relied upon to prevent
panels from sliding out of bundles because the bands can stretch or weaken during transit
from the manufacturer and when the bundles are lifted by crane to the roof. He noted
that vibration from V&M’s overhead crane in A-Bay, wind, and precipitation all added
to the constant force of gravity so that the “natural tendency is for the sheeting to want
to move downhill.” Mester stated that, “[f]rom the photos I was shown, this is exactly
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what happened.” He opined that the absence of kickers on A Bay “is what allowed the
sheeting to slide off the roof.” Like Centimark’s expert, Bajek, Mester also stated that
the panels would slide downward as soon as the bands were cut. In Mester’s opinion,
Centimark did not set up the job properly because kickers should have been used on all
roof levels.
After the incident and before allowing work to continue, V&M required
Centimark to state in writing the preventative measures it planned to follow to secure
material on the roof. Centimark agreed, among other things, to use one kicker on each
perpendicular bundle and to secure old panels and opened new bundles at the end of each
work day “to prevent wind uplift.”
On cross-motions for summary judgment, the district court determined that the
contract contained conflicting terms on the standard of care Centimark was required to
meet. Construing the ambiguity against V&M, the court ruled that Centimark could not
be held strictly liable for the damages V&M suffered. V&M Star v. Centimark Corp.,
No. 4:07CV3573, 2009 WL 5943241, at *11 (N.D. Ohio Feb. 4, 2009). The court also
held that V&M was not entitled to an inference of negligence under the doctrine of res
ipsa loquitur because the roof was not under Centimark’s exclusive control at the time
of the incident. Id. at *16. The court also ruled that the expert opinion of Daniel Mester
for V&M was inadmissible. Id. at **17-19. Finally, the court concluded that V&M
could not prevail on the breach of contract or negligence claims because it did not
produce any direct evidence of causation and there was no circumstantial evidence from
which a reasonable factfinder could conclude that Centimark caused the injury to V&M.
Id. at *20. The court denied V&M’s motion for summary judgment on the breach of
contract claim and granted Centimark’s motion on both claims.
II. STANDARD OF REVIEW
We review the grant of summary judgment de novo, drawing all reasonable
inferences in favor of the non-moving party. See Wimbush v. Wyeth, 619 F.3d 632, 636
(6th Cir. 2010). Summary judgment is appropriate only when the evidence, taken in the
light most favorable to the nonmoving party, establishes that there is no genuine issue
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as to any material fact and the movant is entitled to judgment as a matter of law. Fed.
R. Civ. P. 56(c); Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587
(1986).
A genuine issue of material fact exists when there are “disputes over facts that
might affect the outcome of the suit under the governing law.” Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 248 (1986). In evaluating the evidence, “the judge’s function
is not himself to weigh the evidence and determine the truth of the matter but to
determine whether there is a genuine issue for trial.” Id. at 249. While the mere
existence of a scintilla of evidence in support of the non-moving party is insufficient to
defeat a motion for summary judgment, the court may deny the motion if the record
contains evidence from which a jury could reasonably find for the non-moving party.
Id. at 252.
III. ANALYSIS
Because V&M brought the case under diversity jurisdiction, state law governs
the substantive issues and federal law governs the procedural issues, including
evidentiary rulings made pursuant to the Federal Rules of Evidence. Gass v. Marriott
Hotel Servs., Inc., 558 F.3d 419, 425–26 (6th Cir. 2009). Under Ohio law, the elements
of a breach of contract claim are: (1) the existence of a contract; (2) performance by the
plaintiff; (3) breach by the defendant; and (4) damage or loss to the plaintiff as a result
of the breach. Savedoff v. Access Grp., Inc., 524 F.3d 754, 762 (6th Cir. 2008) (applying
Ohio law); Logsdon v. Ohio N. Univ., 587 N.E.2d 942, 946 (Ohio Ct. App. 1990). The
elements of negligence are: (1) the existence of a duty; (2) breach of the duty; and (3)
an injury proximately resulting from the breach. Jeffers v. Olexo, 539 N.E.2d 614, 616
(Ohio 1989).
A. The contract was not ambiguous
We do not agree that the contract between V&M and Centimark contained
ambiguous terms. In performing the actual work—that is, removing and replacing
roofing materials, installing flashing, and cleaning—Centimark agreed to “meet or
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exceed industry standards used by members of the construction industry practicing under
similar conditions at the same time and locality.” The parties dispute what those
industry standards are, as we discuss below. Wholly separate from the standard of care
in performing the Services, however, is Centimark’s agreement to follow V&M’s
mandatory safety rules which were designed to protect people and structures in the work
area and prevent any unnecessary plant shutdown while the roofing work was underway.
Centimark agreed to store and stack materials in a manner to prevent them from sliding
or falling, and Centimark covenanted to protect V&M’s plant utilities. These mandatory
safety requirements are easily harmonized with the standard of care for performing the
actual work because V&M imposed the different standards to address different concerns.
Nonetheless, V&M cannot hold Centimark strictly liable for the damages
incurred because Centimark accepted contractual responsibility to pay the cost to repair
damage that Centimark caused. See Agreement, Article IX.2 (indemnity for damages
arising from negligence or breach “by Contractor”); Invitation to Bid Specifications,
§ 4.9.6 (“Any utility damaged by the Contractor”); § 4.9.7 (“any damage by the
Contractor”). Whether Centimark caused the damages by failure to follow V&M’s
safety rules and/or by failure to perform the roofing work in a manner meeting or
exceeding industry standards are the central disputed factual issues in the case. Under
Ohio law, V&M must prove causation by a preponderance of the evidence in order to
recover the claimed damages, especially lost profits, as a result of breach of contract or
negligence. See Charles R. Combs Trucking, Inc. v. Int’l Harvester Co., 466 N.E.2d
883, 887 (Ohio 1984) (contract); Pacher v. Invisible Fence of Dayton, 798 N.E.2d 1121,
1128 (Ohio Ct. App. 2003) (negligence).
In the present procedural posture, we are concerned with whether V&M
presented sufficient evidence, taken in its favor, to warrant a jury trial on the disputed
issues. We conclude that V&M met its summary judgment burden. We consider first
whether the testimony of V&M’s expert, Daniel Mester, is admissible and then turn to
other evidence V&M produced.
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B. Mester’s expert opinion is admissible
We review the question whether expert testimony was properly excluded for
abuse of discretion. Kentucky Speedway, LLC v. Nat’l Ass’n of Stock Car Auto Racing,
Inc., 588 F.3d 908, 915 (6th Cir. 2009). A district court abuses its discretion if it
predicates a ruling on an erroneous view of the law or a clearly erroneous assessment of
the evidence. Id.
Each party presented expert reports and affidavits concerning whether there were
any industry standards applicable to staging corrugated panel bundles on a roof.
Centimark’s engineer, Larry Bajek, opined that there are no national or local standards,
practices, or customs governing the storage and placement of bundles on a roof. He
averred that the individual installation company determines how roofing materials will
be staged, depending on site conditions.
V&M’s expert, Daniel Mester, averred to a reasonable degree of certainty based
on his forty years of experience installing metal roofs that kickers are always used to
secure roofing materials when they are placed on a sloped surface, regardless of roof
pitch. In his opinion, Centimark’s foreman and job superintendent did not properly set
up the job because kickers or some other type of restraining device should have been
used to secure the perpendicular bundles staged on A-Bay.
Federal Rule of Evidence 702(a) provides that “[a] witness who is qualified as
an expert by knowledge, skill, experience, training, or education may testify in the form
of an opinion” if the expert’s technical or “other specialized knowledge” will help the
jury understand the evidence or determine a fact in issue. Mester was qualified by
knowledge, skill, experience, and training to give reliable opinion testimony about the
frequency and necessity of kicker use in the metal roofing industry. See In re Scrap
Metal Antitrust Litig., 527 F.3d 517, 528–29 (6th Cir. 2008). Mester’s opinion was
relevant because it would assist the jury in deciding the parties’ dispute regarding the
existence and application of industry standards. See id. By excluding Mester’s
testimony in its entirety, the district court precluded V&M from supporting its claims
and meeting Centimark’s expert testimony.
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The district court next focused on Mester’s statement in his report: “As soon as
the bands are cut, when you go to put them down they are going to want to slide down.”
The court ruled this testimony was not relevant under Federal Rule of Evidence 104(b)2
because V&M had not produced any evidence that the metal bands around the bundle
in question had been cut; instead, the evidence indicated the metal bands on the bundle
were still intact.
Mester’s statement was not considered in its proper context. Mester explained
that kickers are used when placing materials on a sloped surface because “[a]s soon as
the bands are cut” the panels in the bundles “are going to want to slide down.” Mester
did not state or imply that the metal bands on the bundle at issue had been cut; rather,
he simply described what ordinarily occurs if metal bands are cut while the bundle sits
unsecured on a sloped surface. V&M was not required to present proof that the bands
had been cut on the bundle in question as a condition for the admission of Mester’s
expert testimony.
Mester’s explanation, based on his extensive knowledge and
experience in the industry, would have assisted the jury in understanding the force of
gravity on the roofing panels.
Next, the district court excluded Mester’s opinion because it “has no factual basis
for causation” 2009 WL 5943241, at *18, but we disagree. Mester averred that kickers
are necessary to secure bundles on the roof because metal shipping bands become weak
during transportation and cannot be relied upon to prevent panels from sliding out of
bundles. Mester stated: “Vibration from the overhead crane, wind and precipitation all
add to the constant force of gravity. The natural tendency is for the sheeting to want to
move downhill. From the photos I was shown, this is exactly what happened.” In other
words, based on the facts made known to him, Mester concluded, based on his
knowledge and experience, that the metal bands no longer resisted gravity’s effect on the
panels and, because they were placed perpendicular to the roof line, they slid downhill
2
Rule 104(b) provides: “When the relevance of evidence depends on whether a fact exists, proof
must be introduced sufficient to support a finding that the fact does exist. The court may admit the
proposed evidence on the condition that the proof be introduced later.”
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toward the gutter. Mester added: “The absence of [kickers] on A Bay is what allowed
the sheeting to slide off the roof” and into the substation.
“Experts are permitted a wide latitude in their opinions, including those not based
on firsthand knowledge.” Jahn v. Equine Servs., PSC, 233 F.3d 382, 388 (6th Cir.
2000). Expert opinion can also be based on an inference and can embrace an ultimate
issue. Fed. R. Evid. 704(a). The district court faulted Mester’s opinion because he did
not take any frequency measurements from the roof during mill operations to determine
the amount of vibration on the roof of A-Bay, nor did he make any calculations based
on weather reports.
The court further believed that Mester’s statements were
inadmissible because they “lack any indicia of probability and are mere comments on
possibility.” 2009 WL 5943241, at *18.
We do not interpret Mester’s report in the same way. He was not required to
develop scientific measurements to support his opinion that gravity caused the panels to
slide. “So long as the Earth rotates on its axis, the law of gravity is certain. While the
law of gravity prevails, it is also certain that an unsupported object will fall until its
travel is interrupted by some object or surface below.” Busch v. Unibilt Indus., Inc., No.
18175, 2000 WL 1369891, at *3 (Ohio Ct. App. Sept. 22, 2000); Szotak v. Moraine
Country Club, Inc., 872 N.E.2d 1270, 1276–77 (Ohio Ct. App. 2007) (“Until the law of
gravity is repealed, standing above ground level on a ladder presents an inherent risk of
injury resulting from a fall.”); Holdshoe v. Whinery, 222 N.E.2d 435, 438 (Ohio Ct. App.
1966) (“If no restraint was put on a motor vehicle parked on an incline, gravity would
cause the motor vehicle to roll down the incline at an accelerating speed.”). Jurors do
not need to hear expert scientific evidence to determine causation, and the court admitted
as much. 2009 WL 5943241, at *19. But jurors must be allowed to hear relevant
evidence, and they can understand from their own life experience that objects set on a
slope will move downward with the force of gravity unless restrained. See Ramage v.
Central Ohio Emergency Serv., Inc., 592 N.E.2d 828, 833 (Ohio 1992) (“[M]atters of
common knowledge and experience, subjects which are within the ordinary, common
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Document: 006111284543
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V&M Star Steel v. Centimark Corp.
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and general knowledge and experience of mankind, need not be established by expert
opinion testimony.”).
Under the Federal Rules of Evidence, the standard for relevance is “extremely
liberal.” See Dortch v. Fowler, 588 F.3d 396, 400 (6th Cir. 2009). Evidence is relevant
if it has “any tendency to make the existence of any fact that is of consequence to the
determination of the action more probable or less probable than it would be without the
evidence.” Fed. R. Evid. 401. Relevant evidence is admissible under Federal Rule of
Evidence 402. Mester’s opinion helps V&M establish that, had Centimark installed
kickers on A-Bay, it is more probable that the panels would not have fallen into the
substation when gravity pulled them downward. Therefore, his opinion is relevant,
admissible evidence. We believe the court’s expressed concerns bear on the weight the
jury may give Mester’s opinion at trial, not on its admissibility. See Best v. Lowe’s
Home Ctrs., Inc., 563 F.3d 171, 182 (6th Cir. 2009). Accordingly, we conclude that the
exclusion of Mester’s expert opinion was an abuse of discretion.
C. Summary judgment was not appropriate
A jury trial is warranted because genuine issues of material fact exist on this
record.
V&M produced evidence to show the existence of a contract, V&M’s
performance of the contract, Centimark’s breach of it, and resulting damages to V&M.
See Savedoff, 524 F.3d at 762; Logsdon, 587 N.E.2d at 946. Construing the facts in the
light most favorable to V&M, a reasonable jury could find that Centimark breached
contract provisions requiring it to store materials away from edges to prevent objects
from falling, to protect V&M’s utilities, and to work in a manner so as not to disturb the
continuing operations of V&M’s facility.
V&M also produced evidence of negligence in that Centimark owed V&M a
duty, Centimark breached the duty, and injury to V&M proximately resulted from the
breach. See Jeffers, 539 N.E.2d at 616. We agree with the district court that V&M is
not entitled to an inference of negligence based on the doctrine of res ipsa loquitur
because V&M did not establish one of the necessary prerequisites, that being “the
instrumentality causing the injury was, at the time of the injury, or at the time of the
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creation of the condition causing the injury, under the exclusive management and control
of” Centimark. See Hake v. George Wiedemann Brewing Co., 262 N.E.2d 703, 705
(Ohio 1970). Nonetheless, despite V&M’s inability to produce an eye witness to the
incident, it produced sufficient circumstantial evidence to justify a jury trial on
negligence.
Contrary to the district court’s view, causation is not “left to utter speculation.”
2009 WL 5943241, at *21. Collins testified that, when he and Crowl climbed to the roof
after the power outage, they found the roof in disarray. It appeared the roofers had left
in a hurry due to the rain and failed to secure materials and equipment to the roof before
they left. The bundle of panels on A-Bay directly above the substation appeared to have
slid downward where the bottom board of the bundle came to rest in the gutter.
Although the metal bands were intact, Collins reported that the upper boards were
missing, only a few panels remained on the roof, and the rest of the panels had fallen into
the substation. At deposition, Myers confirmed that photographs depicted other staged
bundles moving downhill on the roof, stressing the metal bands, and he agreed such
movement is a normal occurrence, although he retreated from that testimony when he
filed a subsequent affidavit.
The expert evidence tends to confirm the lay witness testimony that gravity
caused the unsecured panels to slide. Centimark’s expert, Bajek, acknowledged that the
panels are secure in the packaging—protective boards and metal bands—until the
packaging is removed and Collins’s testimony makes clear that some packaging boards
were removed from the bundle in question. In addition, PSI’s testing for Centimark
confirmed that, after a third board is removed from a bundle, the panels will slide by
gravity “in a similar fashion to what was found at the accident site.” This evidence,
combined with Mester’s expert testimony for V&M, points to gravity as a likely cause
of the bundle’s movement on the roof and the lack of kickers as the reason why the
panels continued to slide off the roof and into the substation. And while evidence of
subsequent remedial measures—like Centimark’s use of kickers on A-Bay after the
incident—is not admissible to prove negligence or culpable conduct, it may be
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admissible for impeachment or, if disputed, the feasibility of precautionary measures.
Fed. R. Evid. 407. Finally, a question for the jury remains as to whether the panels
escaped the bundles due to manufacturer error, a combination of rain and vibration, or
other external force. Even if the missing boards could have been removed from the
bundle only by intentional force, as Centimark argues, a jury question remains as to
whether it is more probable that Centimark employees removed the boards and failed to
secure the panels before leaving work for the day or whether Ohio Valley employees
committed sabotage against V&M, a theory Centimark both offered and acknowledged
to be nothing more than its own speculation. All of these possibilities must be submitted
to a jury for resolution on the disputed evidence as a whole. See Bourjaily v. United
States, 483 U.S. 171, 179–80 (1987) (“[I]ndividual pieces of evidence, insufficient in
themselves to prove a point, may in cumulation prove it. The sum of an evidentiary
presentation may well be greater than its constituent parts.”).
“Credibility determinations, the weighing of the evidence, and the drawing of
legitimate inferences from the facts are jury functions, not those of a judge[.]”
Anderson, 477 U.S. at 255; Bobo v. UPS, Inc., 665 F.3d 741, 748 (6th Cir. 2012).
Having carefully reviewed the record, we are convinced that a jury trial is warranted.
IV. CONCLUSION
For all of the reasons stated, summary judgment in favor of Centimark should not
have been granted. Accordingly, we REVERSE the judgment in favor of Centimark
and REMAND for trial.
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