Assaf v. Cottrell, Inc. et al

Filing 166

WRITTEN Opinion entered by the Honorable James F. Holderman on 9/19/2012: For the reasons explained in the Statement section of the order, defendant Cottrell Inc.'s "Motion to Exclude the Testimony of Dr. Harvey Cohen under Daubert and fo r Summary Judgment" [148, 150] is granted in part and denied in part. The court grants summary judgment to Cottrell on Assaf's claim that it is liable under a theory of strict liability (Count I). The court denies Cottrell summary judgment on the other counts, and denies without prejudice Cottrell's motion to exclude Dr. Cohen's testimony. The motion to dismiss of defendants East Coast Truck & Trailer Sales Inc. and East Coast Auto Transport Inc. 156 is denied. A status hearing is set for October 2, 2012. [For further details see minute order.] Notice mailed by judge's staff (ntf, )

Order Form (01/2005)

United States District Court, Northern District of Illinois
Name of Assigned Judge
or Magistrate Judge

James F. Holderman

CASE NUMBER

10 C 85

CASE
TITLE

Sitting Judge if Other
than Assigned Judge

DATE

9/19/2012

Yasser Assaf vs. Cottrell, Inc. et al.

DOCKET ENTRY TEXT

For the reasons explained in the Statement section of the order, defendant Cottrell Inc.’s “Motion to Exclude the
Testimony of Dr. Harvey Cohen under Daubert and for Summary Judgment” [148, 150] is granted in part and
denied in part. The court grants summary judgment to Cottrell on Assaf’s claim that it is liable under a theory
of strict liability (Count I). The court denies Cottrell summary judgment on the other counts, and denies without
prejudice Cottrell’s motion to exclude Dr. Cohen’s testimony. The motion to dismiss of defendants East Coast
Truck & Trailer Sales Inc. and East Coast Auto Transport Inc. [156] is denied. A status hearing is set for October
2, 2012.

O[ For further details see text below.]

Docketing to mail notices.

STATEMENT
On December 6, 2007, plaintiff Yasser Assaf injured himself when he fell from an auto hauler trailer
manufactured by defendant Cottrell, Inc., and sold to Assaf’s employer by East Coast Truck & Trailer Sales Inc.
and East Coast Auto Transport Inc. (the “East Coast Entities”). According to Assaf, the auto hauler trailer had
a defective design because it did not provide sufficient safety mechanisms, such as guardrails, handholds, or
sufficiently wide catwalks. In this products liability action, Assaf alleges that Cottrell and the East Coast Entities
are liable to him under three theories: strict liability (Counts I & V), negligence (Counts II & VI), and breach of
implied warranty (Counts III & VII). (Dkt. No. 2, Ex. A.) Assaf also alleges that Cottrell is liable for punitive
damages for its “wilful & wanton conduct.” (Count IV.) Pending before the court is Cottrell’s “Motion to
Exclude the Testimony of Dr. Harvey Cohen under Daubert and for Summary Judgment” (Dkt. Nos. 148 & 150)
and the East Coast Entities’ “Motion to Dismiss” Assaf’s complaint. For the reasons explained below Cottrell’s
“Motion to Exclude the Testimony of Dr. Harvey Cohen under Daubert and for Summary Judgment” is granted
in part and denied in part. The court grant’s Cottrell summary judgment on Assaf’s claim that it is liable under
a theory of strict liability (Count I). The court denies Cottrell’s request for summary judgment on the other
counts, and denies without prejudice Cottrell’s motion to exclude Dr. Cohen’s testimony. The East Coast
Entities’ motion to dismiss is denied.
ANALYSIS
Cottrell’s summary judgment motion seeks to exclude the testimony of Assaf’s expert, Dr. Harvey Cohen,
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STATEMENT
and contends that it is entitled to summary judgment on each of Assaf’s claims against it. Because the resolution
of the summary judgment motion does not depend on the admissibility of Dr. Cohen’s testimony, the court will
address the summary judgment motion first.
I.

Summary Judgment

A grant of summary judgment is proper “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); see also Celotex
Corp. v. Catrett, 477 U.S. 317, 322-23 (1986). “There is no genuine issue of material fact when no reasonable
jury could find in favor of the nonmoving party.” Brewer v. Bd. of Trs. of the Univ. of Ill., 479 F.3d 908, 915 (7th
Cir. 2007). When ruling on a motion for summary judgment, the court must consider the facts before it in the
light most favorable to the nonmoving party, drawing all reasonable inferences in the nonmoving party’s favor.
McCann v. Iroquois Mem’l Hosp., 622 F.3d 745, 752 (7th Cir. 2010).
Initially, the court notes that Cottrell failed to file a reply to Assaf’s Local Rule 56.1(b)(3)(C) Statement
of Additional Material Facts. (Dkt. No. 160.) Accordingly, all of the facts in Assaf’s Local Rule 56.1(b)(3)(C)
Statement are deemed admitted for purposes of this motion. Malec v. Sanford, 191 F.R.D. 581, 584 (N.D. Ill.
2000) (“The sanction for failing to reply is identical to that imposed for failing to respond: admission of the
opposing party’s factual contentions.”).
Cottrell first argues that it is entitled to summary judgment on all of the claims against it because Assaf
has not presented sufficient evidence that the trailer’s alleged defect proximately caused his injury. Cottrell is
correct that Dr. Cohen does not opine on causation. (Dkt. No. 150 (“Cottrell’s SMF”) ¶¶ 36-37.) Cottrell errs,
however in its assertion that Assaf must have expert testimony to show causation. In support of its argument,
Cottrell cites Show v. Ford Motor Co., 659 F.3d 584, 585 (7th Cir. 2011), which applied Illinois law holding that
“expert testimony is vital in design-defect suits when aspects of a product’s design or operation are outside the
scope of lay knowledge.” In this case, Assaf’s allegations involve only a simple slip-and-fall case in which the
aspects of the product at issue are within lay knowledge. A lay jury is capable of evaluating whether the absence
of guardrails, handholds, and wider catwalks caused Assaf to fall. Accordingly, Assaf’s testimony that when he
lost his balance, there was no part of the trailer that he could have grabbed on to regain his balance (Dkt. No. 160
(“Pl.’s SMF”) ¶ 16) (the truth of which, again, is deemed admitted for the purposes of this motion) is sufficient
to allow a reasonable jury to find that the trailer’s alleged defect caused Assaf’s injuries.
Next, Cottrell contends that Assaf has not submitted sufficient evidence that the alleged design defect
made the trailer unreasonably dangerous, which is a required element of a strict liability claim. Mikolajczyk v.
Ford Motor Co., 901 N.E.2d 329, 345 (Ill. 2008) (“Under Illinois law, the elements of a claim of strict liability
based on a defect in the product are: (1) a condition of the product as a result of manufacturing or design, (2) that
made the product unreasonably dangerous, (3) and that existed at the time the product left the defendant’s control,
and (4) an injury to the plaintiff, (5) that was proximately caused by the condition.”). A plaintiff may show a
design defect that is unreasonably dangerous in either of two ways. First the plaintiff may use the “consumerexpectation test,” which requires the plaintiff to “prove that the product is dangerous to an extent beyond that
which would be contemplated by the ordinary consumer who purchases it.” Show v. Ford Motor Co., 697 F.
Supp. 2d 975, 980 (N.D. Ill. 2010) (citation and quotation marks omitted), aff’d, 659 F.3d 584 (7th Cir. 2011).
Second, the plaintiff may use the “risk-utility test,” under which “the plaintiff must offer proof that the risk of
danger inherent in the product design outweighs its benefits.” Id. at 981. Assaf states that he can prove that the
trailer was unreasonably dangerous under either test (Dkt. No. 162, at 8), but presents evidence and argument
related only to the risk-utility test. Moreover, “if the evidence is sufficient to implicate the risk-utility test, a
broader test which incorporates the factor of consumer-expectation is applied by the trier of fact.” See
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STATEMENT
Mikolajczyk, 901 N.E.2d at 352–53. Accordingly, the court will evaluate the sufficiency of Assaf’s evidence
under only the risk-utility test. See Cappellano v. Wright Med. Grp., Inc., 838 F. Supp. 2d 816, 827 (C.D. Ill.
2012).
Assaf asserts that under that test he need only submit evidence that a condition of the trailer caused his
injury, and the burden then shifts to Cottrell to show that the benefits of the challenged design outweigh its safety
risks. In support of that contention, Assaf cites Mikolajczyk’s statement that under the risk-utility test, “the
plaintiff may introduce ‘evidence that the product’s design proximately caused his injury.’” and that “[i]f 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.” Mikolajczyk, 901 N.E.2d at 336 (quoting Lamkin v.
Towner, 563 N.E.2d 449, 457 (Ill. 1990)). The Mikolajczyk court was merely describing a statement in Lamkin,
however, and went on to clarify that:
This burden-shifting formulation of the risk-utility test comes from Lamkin, but was not a part of
the holding in that case. In fact, the holding in Lamkin negates any such burden on the defendant,
because this court found that summary judgment for the defendant in that case was proper. If the
burden had shifted to the defendant, summary judgment could not have been entered in the
defendant’s favor.
. . . . [N]o decision of this court has expressly adopted this burden-shifting formulation of
the risk-utility test.
Id. at 341 (citations omitted). Moreover, another Illinois Supreme Court opinion has clarified that a plaintiff may
proceed under the risk-utility test “by presenting evidence that the risk of danger inherent in the challenged
design outweighs the benefits of such design.” Calles v. Scripto-Tokai Corp., 864 N.E.2d 249, 255 (Ill. 2007).
Accordingly, the court determines that the plaintiff bears the burden of presenting evidence that the risks of the
design outweigh its benefits, and that in the absence of such evidence, summary judgment for the defendant is
appropriate. See Cappellano, 838 F. Supp. 2d at 832 (“Because Plaintiff has provided this court with no basis
for comparing the risk and the benefits, he has not met his burden. In other words, in order to perform the initial
balancing under the risk-utility test to determine it the case should go to the jury, this court must have something
to balance. It cannot be enough to show that there is a risk without providing any way to balance the risk against
the benefits.”).
Here, Assaf admits that Dr. Cohen’s opinions do not attempt to balance the risks of the trailer’s design
against its benefits, but relate only to the alleged safety risks of the product. (Dkt. No. 162, at 9.) Moreover, the
only evidence Assaf points to that he asserts is relevant to the balancing of the risks and benefits is the testimony
of Cottrell’s Vice President Phillip Howes about additional safety features that Cottrell used to retrofit the trailers
it had sold beginning in 2009, and alternative catwalk designs that Cottrell began testing in 2005. That evidence
is irrelevant, however, because the relevant inquiry is into “the availability and feasibility of alternate designs
at the time of the product’s manufacture,” not at the time of the plaintiff’s injury. Jablonski v. Ford Motor Co.,
955 N.E.2d 1138, 1154 (Ill. 2011) (emphasis added) (explaining the factors relevant to the risk-utility analysis);
see also Calles, 864 N.E.2d at 262 (holding that evidence of a substitute product that was available in the same
month as the injury is “insufficient to demonstrate that a substitute product was available at the time of the
manufacture of the [allegedly defective product]”). The trailer involved in the accident here was manufactured
in 2003 (Pl.’s SMF ¶ 3), so evidence about alternative designs available in 2005 or 2009 is not relevant.
Moreover, a defendant’s subsequent remedial measures are not admissible under Federal Rule of Evidence 407
unless the defendant contests the feasibility of those measures. Cottrell has stated that it will not contest the
feasibility of adding additional safety measures to the trailers. (Dkt. No. 163, at 8.) Accordingly, the evidence
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STATEMENT
is not admissible and Assaf has failed to present evidence allowing the court to balance the risks and benefits of
the challenged design. Accordingly, the court holds that Assaf has not presented sufficient evidence to allow a
reasonable jury to conclude that the design of the trailer was defective under the risk-utility test.
That holding entitles Cottrell to summary judgment on Assaf’s strict liability claim, which plainly requires
Assaf to show the existence of a defect. (Assaf’s argument that collateral estoppel entitles him to avoid summary
judgment on that claim fails, because the prior case in which he asserts Cottrell was found liable for a trailer’s
design defect involved a different model of trailer.)
Assaf’s negligence and breach of implied warranty claims, however, do not require, at least explicitly, a
showing of a defect. See Jablonski, 955 N.E.2d at 1153-54 (“A product liability action asserting a claim based
on negligence, such as negligent design, is based upon fundamental concepts of common law negligence. As in
any negligence action, a plaintiff must establish the existence of a duty, a breach of that duty, an injury that
proximately caused by that breach, and damages.” (citation omitted)); Brandt v. Boston Scientific Corp., 792
N.E.2d 296, 299 (Ill. 2003) (“To succeed on a claim of breach of implied warranty of merchantability, a plaintiff
must allege and prove: (1) a sale of goods (2) by a merchant of those goods, and (3) the goods were not of
merchantable quality.”). Without any briefing from the parties on whether the negligence and warranty claims
require Assaf to prove a product defect, the court declines to grant summary judgment to Cottrell on those claims.
II.

Dr. Cohen’s Expert Testimony

To be admissible, expert testimony must be both relevant and reliable. Bielskis v. Louisville Ladder, Inc.,
663 F.3d 887, 893 (7th Cir. 2011). Dr. Cohen’s sole opinion is that the trailer was defective because it did not
provide sufficient safety mechanisms to protect users from falls. That opinion was plainly relevant to the strict
liability claim, but may not be relevant to a negligence or breach of implied warranty claim, which as explained
above do not explicitly require a showing of a defect. Nonetheless, the parties have not briefed the relevance of
Dr. Cohen’s testimony in the absence of the strict liability claim. Accordingly, the court declines at this pretrial
stage to rule on the admissibility of Dr. Cohen’s testimony, and will instead address the issue, if necessary, at
the trial. See Kumho Tire Co. v. Carmichael, 526 U.S. 137, 152 (1999) (“The trial court must have the same kind
of latitude in deciding how to test an expert's reliability, and to decide whether or when special briefing or other
proceedings are needed to investigate reliability, as it enjoys when it decides whether that expert’s relevant
testimony is reliable.”); Bielskis, 663 F.3d at 894(“[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.” (citation omitted)).
III.

The East Coast Entities’ Motion to Dismiss

The East Coast Entities move under Fed. R. Civ. P. 12(b)(6) to dismiss the claims against them. A motion
to dismiss under Rule 12(b), however, “must be made before pleading if a responsive pleading is allowed.” Fed.
R. Civ. P. 12(b). Here, both of the East Coast Entities have filed a responsive pleading. (Dkt. Nos. 21 & 22.)
Accordingly, their Rule 12(b)(6) motion is denied as untimely.
IV.

The Importance of Procedure

Finally, the court admonishes the parties to improve their unfortunate lack of attention to following proper
procedures in this case. In addition to the East Coast Entities’ untimely Rule 12(b)(6) motion, and Cottrell’s
failure to reply to Assaf’s Local Rule 56.1(b)(3)(C) Statement of Additional Material Facts, there have been
several other missteps. First, Assaf’s response to Cottrell’s summary judgment motion (Dkt. No. 162) is thirty10C85 Yasser Assaf vs. Cottrell, Inc. et al.

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STATEMENT
four pages long—nineteen pages longer than the fifteen-page limit. L.R. 7.1. Assaf did not ask permission to file
the extra pages, nor did he provide a table of cases or a table of contents, as Local Rule 7.1 requires.
For its part, Cottrell calls the court’s attention to Assaf’s violation of the court’s rules (Dkt. No. 163, at
1), but fails to notice that its own memorandum in support of its motion for summary judgment (Dkt. No. 149)
spills thirty words onto the sixteenth page. While less blatant than nineteen extra pages, Cottrell’s violation is
perhaps more egregious because it would have taken little effort to excise the extra thirty words, and Cottrell’s
failure to do so merely violates the court’s local rules without making Cottrell’s argument more persuasive.
Next, the East Coast Entities filed their reply in support of their motion to dismiss on September 17, 2012
(Dkt. No. 165), four days after the September 13, 2012, deadline (Dkt. No. 159), but did not ask the court’s leave
for the late filing.
Because there is enough blame to go around, the court has considered all of the late and oversize filings,
has overlooked their deficiencies, and now declines to impose any monetary sanctions against the parties. The
parties, however, should not interpret the court’s largess as condoning the errant conduct. The court is deeply
disappointed with the cavalier attitude that the parties have demonstrated in this litigation. Accordingly the court
admonishes the parties that any future violations of the court’s rules or orders could readily lead to appropriate
sanctions, including, if necessary, monetary sanctions against the parties’ attorneys.

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