Trenkle v. Kubota Tractor Corporation

Filing 41

ORDER & OPINION entered by Judge James E. Shadid on 7/22/2021. For the reasons set forth above, Defendant's Motion (Doc. 31) for Partial Summary Judgment is DENIED. See full written Order. (VH)

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E-FILED

Thursday, 22 July, 2021 11:41:15 AM
Clerk, U.S. District Court, ILCD
UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF ILLINOIS
JOSEPH TRENKLE,
Plaintiff,
v.
KUBOTA CORPORATION, KUBOTA
MANUFACTURING OF AMERICA
CORPORATION, and KUBOTA
INDUSTRIAL EQUIPMENT
CORPORATION,
Defendants.

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Case No. 18-cv-1207-JES-JEH
[Consolidated with 18-cv-1327]

ORDER AND OPINION
This matter is now before the Court on Defendant’s 1 Motion (Doc. 31) for Partial
Summary Judgment, Plaintiff’s Response (Doc. 37), and Defendant’s Reply (Doc. 38). For the
reasons set forth below, the Motion (Doc. 31) is denied.
BACKGROUND
The following facts are undisputed by the parties. 2
The Accident
Plaintiff Joseph Trenkle is a 66-year-old resident of Farmer City, Illinois. Defendant
manufactures and distributes the Kubota Model B2650HSD tractor (“the tractor”). Plaintiff was
using the tractor at his home on September 10, 2016 until about 4:30 or 5:00 pm. When he
attempted to dismount the tractor to open his garage door on his way to put the tractor away for
the day, the step on the tractor, which is 12 inches from the ground, broke and Plaintiff’s left foot

For ease of reference, the Court refers to Defendants in this matter collectively as “Defendant.”
The undisputed facts are culled from Defendant’s Motion (Doc. 31) and Plaintiff’s Response (Doc. 37). The
undisputed additional material facts are derived from the Response (Doc. 37) and Reply (Doc. 38).

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struck the ground, his body rolled to his left, and he landed on the ground on his left arm and
shoulder. His right foot was caught in the tractor step, twisting his knee. Plaintiff stood up,
remounted the tractor using a step stool, and put it away inside his shed. Doc. 31, at 3.
The Litigation
Plaintiff filed two lawsuits against Defendant for strict liability and negligence.
Defendant has conceded via a stipulation of the parties that a manufacturing defect caused the
detachment of the right step to separate when Plaintiff stepped on it. Proximate cause and
damages remain in dispute. Plaintiff alleges the September 10, 2016 fall from the tractor step
caused him to undergo meniscus repair surgery on his right knee, a total right knee replacement,
a left knee meniscus repair surgery, and a total left knee replacement. Id. at 4.
The Injuries
On September 30, 2016, Plaintiff was examined by orthopedic surgeon Dr. Anthony
Dustman. Plaintiff complained of pain in his right knee that began with a twisting injury on
September 10, 2016. Plaintiff did not complain of any left knee pain in September 2016. An xray of the right knee revealed “some mild arthritis or moderate arthritis up under the kneecap.”
The twisting injury did not cause the arthritis in the right knee. An MRI from October 4, 2016
showed a tear of the right knee meniscus. Plaintiff returned to Dr. Dustman on October 6, 2016
and underwent arthroscopic surgery to clean out the torn meniscus. Id. at 4.
On November 16, 2016, Plaintiff presented to Dr. Dustman a month after the right knee
arthroscopy. Dr. Dustman noted no limp or pain, and concluded “[t]he patient has had a good
recovery with no restriction in range of motion or pain.” Dr. Dustman testified at his deposition
that by November 16, 2016, the goals of the meniscus repair were reached. Plaintiff was under
no medical restrictions as of November 16, 2016. On November 28, 2017, Dr. Dustman

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performed a total knee replacement on Plaintiff’s right knee. According to Dr. Dustman, the
September 2016 injury did not cause the right knee arthritis, which could not have developed in
the months since the injury. Id. at 5. When asked whether the arthritis in Plaintiff’s knee was
eventually going to need a knee replacement or require Plaintiff to live with the pain, Dr.
Dustman testified “Yeah. I think that’s a fair—I’m more certain that it would progress down the
road than it wouldn’t. I mean, again, you’re asking me to look in a crystal ball that is pretty hard
to see. Pretty foggy there.” 3 Doc. 32-9, at 47.
Kubota’s orthopedic expert, Dr. Mark Hutchinson, opined that, “[b]ased on imaging and
operative findings, to a reasonable degree of medical certainty, Mr. Trenkle had degenerative
joint disease including degenerative meniscus pathology that preceded the accident in question
and would have progressed regardless of the accident in question.” He further opined, “[t]o a
reasonable degree of medical certainty, the symptoms and treatment of the RIGHT knee after 16
November 2016, including the need for viscosupplementation and the need for RIGHT total knee
arthroplasty were neither caused by the 10 September 2016 fall nor by any exacerbation or
aggravation of the pre-existing RIGHT knee pathology that occurred on the date.”
Dr. Dustman saw Plaintiff 6 months after the tractor accident, on April 17, 2017, at which
time Plaintiff complained of left knee pain associated with slipping and twisting his knee. Dr.
Dustman found a torn meniscus in the left knee and performed an arthroscopy in May 2017. Dr.
Dustman stated the “mechanism of injury which causes a tear of the cartilage” is consistent with
a twisting injury.
Q. All right. Doctor, do you have an opinion whether the twisting fall from the
Kubota tractor step caused in whole or in part the need for the operations on his
right and left knee?
Because the basis of Plaintiff’s dispute regarding this statement of fact is lack of completeness, the Court recites
the actual testimony from the transcript and finds the statement undisputed only to the extent it is supported by Dr.
Dustman’s deposition testimony.

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A. I have no clue where that twisting injury occurred. I was not there. I didn’t see
it. I will tell you with certainty that that twisting injury is a mechanism of injury
which causes the tear of the cartilage which caused the necessity to do the operation,
yes.
Doc. 32-9, at 26.
Q. Are you able to state to a reasonable degree of medical certainty that the
problems with the left knee that you saw and treated Mr. Trenkle for commencing
on April 17 of … 2017, would not have happened but for a slipping and falling
incident that occurred in September of 2016?
***
A. I got no clue what you just asked me. I do like medical reasonable degree because
that means I only have to be 50 percent correct, and in my business, I’ve got to be
a hundred percent correct. So I am going to tell you that when I saw him April 17th
of 2017, that knee presented with a degenerative tear or a tear of the cartilage, okay?
Period. All right? I confirmed it on an MRI, and I scoped him. Now, when all that
occurred I don’t know, and I’m going to tell you, within a reasonable degree of
medical certainty, that, no question, aggravates or progresses the progression of
arthritis. Is that the question you were trying to ask me? I’ll try to explain medically
as best I can for you guys and the jury, but when that occurred I got no clue. I know
when I saw him, that’s how he presented. The MRI confirmed it. As I mentioned, I
like it when I match with it. Scope it. Leave it alone. You’re not 20. Now, that
usually takes me about a half hour to tell the patient that, but that’s it in a nutshell.
Id. at 19–20. Finally, Plaintiff’s treating physician testified regarding causation as
follows:
Q. … Joe Trenkle has and will testify that the only twisting injury that occurred to
him was on 9-10-16 when the step of the Kubota tractor failed. Now, if you accept
that history, tell the jury your opinion as to the twisting injury and Joe’s medical
care for his knees; in other words, the relationship between the twisting injury and
his knees and his care.
A. Well, there’s no question in my mind that that’s a direct correlation. The injury
to tear the meniscus is twisting, okay? That’s by far the most common, all right?
That occurs, you then have an MRI that confirms it and a scope that actually shows
it. Yes, a direct relationship to that.
Doc. 32-10, at 33–34.

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LEGAL STANDARD
Summary judgment is appropriate where the movant shows, through “materials in the
record, including depositions, documents, electronically stored information, affidavits or
declarations, stipulations … admissions, interrogatory answers, or other materials” 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. In resolving a motion for summary judgment, “[t]he court has one task
and one task only: to decide, based on the evidence of record, whether there is any material
dispute of fact that requires a trial.” Waldridge v. Am. Hoechst Corp., 24 F.3d 918, 920 (7th Cir.
1994).
In order to withstand a motion for summary judgment, the nonmovant must “set forth
specific facts showing that there is a genuine issue for trial.” Anderson v. Liberty Lobby, Inc., 477
U.S. 242, 250 (1986). When presented with a motion for summary judgment, the Court must
construe the record “in the light most favorable to the nonmovant and avoid[] the temptation to
decide which party’s version of the facts is more likely true.” Payne v. Pauley, 337 F.3d 767, 770
(7th Cir. 2003). If the evidence, however, is “merely colorable, or is not significantly probative
or merely raises ‘some metaphysical doubt as the material facts,’ summary judgment may be
granted.” Liberty Lobby, 477 U.S. at 249-50. Thus, in order to overcome the undisputed facts set
forth in a defendants’ motion for summary judgment, a plaintiff cannot rest on the allegations in
his complaint but must point to affidavits, depositions or other evidence of an admissible sort
that a genuine dispute of material fact exists between parties. Fed. R. Civ. P. 56(e)(2); Behrens v.
Pelletier, 516 U.S. 299, 309 (1996).

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DISCUSSION
In its Motion for Summary Judgment, Kubota argues Plaintiff has failed to establish that
Plaintiff’s right knee replacement or the injuries to Plaintiff’s left knee were caused by the
September 10, 2016 fall.
The Right Knee
With respect to the right knee, Defendant argues Plaintiff cannot establish that his fall
was a cause of his right total knee replacement. Doc. 31 at 11–12. In support of its argument,
Defendant refers to Dr. Dustman’s deposition testimony and argues that the cause of Plaintiff’s
right total knee replacement was his preexisting arthritis, and the right total knee replacement
would have been required even if Plaintiff had not fallen from the tractor. Id. at 11. At his
deposition, Dr. Dustman testified as follows:
Q. And would it be fair to say that the twisting injury did not cause that arthritis that
you saw?
A. Correct, correct. The twisting injury—I want to make sure I have everybody
understand this. This injury, okay, contributes to a progression of that, but does it
cause it? I’m not sure. I’m not sure we have any data that says it does or doesn’t
with it, but it certainly contributes to the progression of that arthritis.
Doc. 33-9 at 45. Later, the following exchange occurred:
Q. Would it be fair to say that the twisting injury did not cause the arthritis that you
saw in the knee at the arthroscopy?
A. Yes.
Q. Okay.
A. It takes longer for that [to] develop than a month or two.
Q. And that arthritis that you saw in the knee was eventually going to need a knee
replacement, or live with it like you described earlier as it progressed?
A. Yeah, I think that’s fair—I’m more certain that it would progress down the road
than it wouldn’t.
Doc. 33-9 at 47. Additionally, Dr. Dustman testified:
Q. Okay. And is it fair to say as you’ve testified previously that this arthritis that
you saw and these grades would have been there before the injury that occurred on
September 10?
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A. Yeah. That’s just a little too much to come from just that injury. Now, it’s also
fair to say that that tear didn’t help things, and it progressed it. There’s no question
in my mind that injury and tearing of cartilage … meniscus is an injury, okay …
there’s no question that progresses it. I don’t think its causal.
Q. Making sure I understand what you just said, you don’t think that the twisting
of the knee was causal to the arthritis that you saw?
A. Correct, correct.
Doc. 33-10 at 79–80.
Based on the above, Defendant argues Plaintiff lacks evidence that the right total knee
replacement would have occurred absent the fall from the tractor. Doc. 31 at 12. In response,
Plaintiff points out that a plaintiff may recover damages for the acceleration of a progressive
disease. Id. at 11 (citing Gruidl v. Schell, 166 Ill. App. 3d 276, 282, 519 N.E.2d 963, 967–68
(1988)). In Gruidl, the Illinois appellate court noted that
[i]t is hornbook law that a tortfeasor is liable for the injuries he or she causes, even
though the injuries consist of the aggravation of a pre-existing condition. (Balestri
v. Terminal Freight Cooperative Association (1979), 76 Ill.2d 451, 455, 31 Ill.Dec.
189, 191, 394 N.E.2d 391, 393.) Further, a plaintiff with a disease may recover
damages also for the activation of a dormant disease or the acceleration of a
progressive disease. A plaintiff, however, can recover only for that part of his
suffering that proximately resulted from the defendant’s negligence and was
thereby activated, aggravated, or accelerated. (15 Illinois Law &
Practice, Damages, § 37 (1968).) “A plaintiff is not entitled to recover damages for
conditions which are due entirely to a previous disease.” 25 C.J.S., Damages, § 20,
at 657 (1966).
Gruidl v. Schell, 166 Ill. App. 3d 276, 282, 519 N.E.2d 963, 967–68 (1988). In reply, Defendant
argues (1) that Dr. Dustman does not provide the requisite expert opinion that the fall caused
Plaintiff to undergo surgery earlier than he would have absent the fall, and (2) even if he did,
Plaintiff’s damages would be the same because he would ultimately endure the same pain from
surgery and recovery. Doc. 38 at 12–13.
Defendant’s argument ignores portions of Dr. Dustman’s testimony regarding aggravation
of a preexisting condition and fails to account for the pain and suffering Plaintiff experienced

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from the early progression of his arthritis. First, contrary to Defendant’s assertions, Dr. Dustman
did testify that the fall resulting in the torn meniscus caused plaintiff’s arthritis to progress
sooner than it would have without the fall. See Doc. 33-10 at 32 (“A. Yeah. That’s just a little too
much to come from just that injury. Now, it’s also fair to say that that tear didn’t help things, and
it progressed it. There’s no question in my mind that injury and tearing of cartilage … meniscus
is an injury, okay … there’s no question that progresses it.”). Second, both the analysis in Gruidl
and Illinois Pattern Instruction 30.21 support Plaintiff’s aggravation of a preexisting condition
theory. See Gruidl, supra; see also Ill. Pattern Jury Instr.-Civ. 30.21 (“If you decide for the
plaintiff on the question of liability, you may not deny or limit the plaintiff’s right to damages
resulting from this occurrence because any injury resulted from [an aggravation of a pre-existing
condition] [or] [a pre-existing condition which rendered the plaintiff more susceptible to
injury].”). For these reasons, Defendant’s Motion is denied as it relates to the right total knee
replacement.
The Left Knee
With respect to the left knee, Defendant argues Plaintiff cannot establish causation with
respect to either the left knee meniscus tear or the arthritis in the left knee necessitating a left
total knee replacement. Specifically, Defendant argues Plaintiff has failed to establish sufficient
evidence of causation because: (1) the records indicate Plaintiff first complained to Dr. Dustman
about his left knee in April 2017, months after the September 2016 fall, even though a meniscus
tear is usually painful and symptomatic; (2) Dr. Dustman did not offer any opinion that the fall
caused the injuries or problems with his left knee; and (3) Dr. Dustman concluded the injury
causing the tear in the meniscus was recent when he stated “[s]o obviously he’s recently

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aggravated it because it’s flared up.”). Doc. 31 at 13–14. Both parties rely on portions of Dr.
Dustman’s deposition testimony, so the Court will reproduce those passages here.
Q. Joe Trenkle has and will testify that the only twisting injury that occurred to him
was on 9-10-16 when the step of the Kubota tractor failed. Now, if you accept that
history, tell the jury your opinion as to the twisting injury and Joe’s medical care
for his knees; in other words, the relationship between the twisting injury and his
knees and his care.
A. Well, there’s no question in my mind that that’s a direct correlation. The injury
to tear the meniscus is twisting, okay? That’s by far the most common, all right?
That occurs, you then have an MRI that confirms it and a scope that actually shows
it. Yes, a direction relationship to that.
Q. And his medical care thereafter?
A. Yes.
Q. That’s why he needed medical care. That’s why he came to you.
A. Correct, correct.
[Recross]
Q. And just to clarify there, Doctor, were you referring to the right knee?
A. Yes. That’s what I interpreted we were talking about.
….
[Redirect]
Q. Well, what about the left knee, the twisting injury with regard to the left knee,
because he reported to you that he twisted his left knee also.
A. Yes.
Q. In this same—
A. I’ll agree with the same hypothesis that we had earlier. As I mentioned a couple
times, it’s mirrored. It’s exactly the same thing. It’s just on the other side, and there
is a direct relationship in my mind between that pathology and the twisting.
Q. And that’s in regard to both the right knee and the left knee?
A. Correct.
Doc. 33-10 at 33–35.
Q. All right. Doctor, do you have an opinion whether the twisting fall from the
Kubota tractor step caused in whole or in part the need for the operations on his
right and left knee?
[Objection omitted]
A. I have no clue where that twisting injury occurred. I was not there. I didn’t see
it. I will tell you with certainty that that twisting injury is a mechanism of injury
which causes the tear of the cartilage which caused the necessity to do the operation,
yes.
A. All right. So do you basically—
[Mr. Larson] Q. Let me clarify which—I apologize for interrupting—which
operation are you saying?

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A. Both. Both the right knee and then another twisting, or the same. I don’t know
when that occurred. I have no clue. Did the very same thing to the left knee.
Doc. 33-9 at 25–26.
Q. Are you able to state to a reasonable degree of medical certainty that the
problems with the left knee that you saw and treated Mr. Trenkle for commencing
on April 17 of … 2017, would not have happened but for a slipping and falling
incident that occurred in September of 2016?
…
A. I got no clue what you just asked me. I do like medical reasonable degree because
that means I only have to be 50 percent correct, and in my business, I’ve got to be
a hundred percent correct. So I am going to tell you that when I saw him on April
17th of 2017, that knee presented with a degenerative tear or a tear of the cartilage,
okay? Period. All right? I confirmed it on an MRI, and I scoped him. Now, when
all that occurred I don’t know, and I’m going to tell you, within a reasonable degree
of medical certainty, that, no question, aggravates or progresses the progression of
arthritis. Is that the question you were trying to ask me? I’ll try to explain medically
as best I can for you guys and the jury, but when that occurred I got no clue. I Know
when I saw him, that’s how he presented. The MRI confirmed it.…
Doc. 33-10 at 18–21 (cleaned up).
Defendant first takes issue with the timing of Plaintiff’s injury—the medical records
show he first reported the issue to Dr. Dustman more than 6 months after the fall from the tractor
even though a torn meniscus is usually painful and symptomatic. Doc. 31 at 13. However,
Plaintiff testified at his deposition that he noticed pain in both knees immediately after the fall.
Doc. 33-4 at 7. Further, Plaintiff testified that the only injury to his left knee occurred on the date
of the tractor step failure. Doc. 37-1. While the absence of left knee complaints in the medical
records until April 2017 provides a strong line of questioning for Dr. Dustman and Plaintiff on
cross examination, it is not a basis for granting summary judgment here. Whether Plaintiff’s
testimony is credible is a question for the jury.
Next, Defendant argues Dr. Dustman did not offer any opinion that the fall caused the
injuries or problems with his left knee. Dr. Dustman was not present at the time of the fall and
testified that he did not know when the injury occurred. However, he did testify that, if he relies
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on Plaintiff’s statements that the only twisting injury that occurred to him was on the date of the
fall from the tractor, then there is a direct relationship “between that pathology and the twisting.”
Doc. 33-10 at 35. As a physician, Dr. Dustman reasonably relies upon statements from his
patients when arriving at a diagnosis or medical opinion. See Fed. R. Evid. 703. Thus, Dr.
Dustman was entitled to rely on Plaintiff’s statements that the only twisting injury to his knee
occurred on the date of the tractor fall when formulating his expert opinion in this case.
Defendant’s third argument suggests Dr. Dustman concluded the injury causing the tear in the
meniscus was recent when he stated “[s]o obviously he’s recently aggravated it because it’s
flared up.”). Doc. 31 at 13–14. Yet as Plaintiff points out, that statement is more naturally read to
mean a prior, existing injury has recently been aggravated, rather than to describe an entirely new
injury. Thus, this statement does not support Defendant’s argument. In sum, when Plaintiff’s
statements and Dr. Dustman’s opinions are viewed together, Plaintiff has presented sufficient
evidence of causation to survive Defendant’s Motion for Summary Judgment as it relates to his
left knee meniscus injury.
Finally, Defendant reiterates the same argument about Plaintiff’s left total knee
replacement that was made earlier with respect to his right total knee replacement. Dr. Dustman
testified that the injuries to the left knee “mirrored” the injuries to the right knee; “it’s exactly the
same thing.” Doc. 33-10 at 35. This argument fails for the same reasons articulated above—
Plaintiff has produced sufficient evidence that the meniscus tear aggravated or progressed the
arthritis of his left knee, necessitating surgical intervention sooner than he would have absent the
fall. Accordingly, Defendant’s Motion for Summary Judgment is denied in its entirety.

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CONCLUSION
For the reasons set forth above, Defendant’s Motion (Doc. 31) for Partial Summary
Judgment is DENIED.

Signed on this 22nd day of July, 2021.
s/ James E. Shadid
James E. Shadid
United States District Judge

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