Assaf v. Cottrell, Inc. et al

Filing 194

MEMORANDUM Opinion and Order. Cottrel's Rule 60(b) motion 192 is denied. In light of the Seventh Circuit's opinion in Ruppell v. CBS Corp., 701 F.3d 1176 (7th Cir. 2012), plaintiff Yasser Assaf must put on sufficient evidence at trial to carry his burden under the risk-utility test. Assaf's failure to put on such evidence will result in the granting of a motion for judgment as a matter of law against him. The parties are again encouraged to discuss settlement, taking into account Ruppell's clarification of the law applicable in this case. Hearing date of 3/28/13 at 9:00 a.m. remains. Signed by the Honorable James F. Holderman on 3/27/13. Notice mailed by judge's staff (ntf, )

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
YASSER ASSAF,

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Plaintiff,
v.
COTTRELL, INC.,
Defendant.

No. 10 C 85

MEMORANDUM OPINION AND ORDER
JAMES F. HOLDERMAN, Chief Judge:
On September 19, 2012, this court denied defendant Cottrell, Inc.’s motion for summary
judgment on plaintiff Yasser Assaf’s negligent-product-design claim. (Dkt. No. 166.) Cottrell has
now moved under Fed. R. Civ. P. 60(b) to alter that denial, arguing that the court should dismiss
that claim (the only claim remaining in this case) in light of the Seventh Circuit’s November 2012
citation to the Illinois Supreme Court’s opinion in Jablonski v. Ford, 955 N.E.2d 1138 (Ill. 2011),
confirming that a plaintiff must satisfy the risk-utility test to succeed in a negligent-product-design
case. Ruppell v. CBS Corp., 701 F.3d 1176, 1183 (7th Cir. 2012).
This court’s summary judgment ruling held that Assaf failed to present sufficient evidence
to create a genuine dispute as to whether he satisfied the risk-utility test. (See Dkt. No. 166, at 3-4.)
As a result, the court granted Cottrell summary judgment on Assaf’s strict liability claim, because
Illinois law plainly required the use of the risk-utility test to prevail on a strict liability claim in the
circumstances of this case. (See id.) At that time, Cottrell did not cite the Jablonski case and did not
argue that the negligent-product-design claim also required satisfying the risk-utility test. The
court therefore held that Cottrell waived that point with respect to the negligent-product-design

claim, and the court denied Cottrell’s summary judgment motion with respect to that claim. (Id. at
4 (“Without any briefing from the parties on whether the negligence . . . claim[] require[s] Assaf to
prove a product defect, the court declines to grant summary judgment to Cottrell on th[at]
claim[].”).)
The court declined to conclude sua sponte that the negligent-product-design claim required
the use of the risk-utility test because the Illinois Supreme Court’s opinions left some ambiguity on
the question. Specifically, before Jablonski, the Illinois Supreme Court had suggested that the
risk-utility test was not applicable in negligent-product-design cases. See, e.g., Calles v.
Scripto-Tokai Corp., 864 N.E.2d 249, 263 (Ill. 2007) (surveying the Illinois Supreme Court’s
earlier statements on the question but concluding that “the conclusion that the risk-utility test is not
applicable in negligent-product-design cases is not binding precedent”).
In Jablonski, the Illinois Supreme Court rejected the conclusion that the risk-utility test is
not applicable in negligent-product-design cases, but left open a possible basis for arguing that a
negligence claim can prevail without applying the risk-utility test. See Jablonski, 955 N.E.2d at
1154. Specifically, the Illinois Supreme Court held that “risk-utility balancing remains operative
in determining whether a defendant’s conduct is reasonable in a negligent-design case” and that
the risk utility test is “essentially identical to the test applied in determining” negligence. Id. at
1154-55 (emphasis added). Those statements establish that the risk-utility test is one way to prevail
in a negligent-product-design case, but do not state explicitly that satisfying the risk-utility test is
necessary to succeed in a negligent-product-design case. In light of the ambiguity remaining in

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Jablonski, the court concluded that Cottrell waived the argument that the negligent-product-design
claim requires satisfying the risk-utility test by failing to assert that argument in its briefing. 1
Cottrell argues that Ruppell “clarified” Illinois law by stating that
“A product liability action . . . is based upon fundamental concepts of common law
negligence,” which require the plaintiff to show “the manufacturer knew or should
have known of the risk posed by the product design at the time of manufacture of
the product” and that “the risk of harm outweighs the utility of a particular design.”
Ruppell v. CBS Corp., 701 F.3d 1176, 1183 (7th Cir. 2012) (quoting Jablonski, 955 N.E.2d at
1153-54). The Seventh Circuit’s opinion refutes any possible argument that the risk-utility test is
not necessary to a negligent-product-design claim because it states that a negligence claim
“require[s]” the risk-utility test.
Nonetheless, Cottrell is not entitled to relief under Rule 60(b). First, the court denied
Cottrell’s summary judgment motion not because Illinois law was unclear, but because Cottrell
waived the argument that negligent products liability actions require the risk-utility test for
purposes of summary judgment. The Seventh Circuit’s opinion in Ruppell does not in any way
change the determination that Cottrell waived the argument on summary judgment, and it would
be unfair to allow Cottrell a second bite at the apple on summary judgment merely because of an
intervening change in the law.
Second, and more significantly, a Rule 60(b) motion is an inappropriate vehicle for asking
the court to now grant summary judgment to Cottrell. The only subsection of Rule 60(b) possibly
applicable is (6), which provides for amending a judgment for “any other reason that justifies

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Significantly, Cottrell’s briefing did not mention Jablonski or present any other argument
on the question. (See Dkt. Nos. 149, 163.)
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relief,” a standard that requires “exceptional circumstances.” C.K.S. Engineers v. White Mountain
Gypsum, 726 F.2d 1202, 1204-05 (7th Cir. 1984). A subsequent change in law is generally not an
adequate reason for relief. Norgaard v. DePuy Orthopaedics, 121 F.3d 1074, 1077 (7th Cir. 1997).
In addition, a party’s fault—such as Cottrell’s waiver here—will preclude a finding of exceptional
circumstances. Reinsurance Co. of Am., Inc. v. Administratia Asigurarilor de Stat (Admin. of State
Ins.), 902 F.2d 1275, 1278 (7th Cir. 1990). Thus, the court lacks the authority under Rule 60(b) to
grant Cottrell the relief it seeks.
Finally, the court notes that Cottrell has other avenues for relief making a Rule 60(b)
motion unnecessary, because it can proceed to trial arguing that Assaf must put on evidence to
satisfy the risk-utility test. What Cottrell cannot do is re-litigate the summary judgment motion in
an attempt to undo its failure to raise the proper arguments at the proper time. Because Cottrell
waived the argument at the summary judgment stage that a negligent-product-design claim
requires satisfying the risk-utility test, Assaf is now entitled to proceed to trial with another
opportunity to present evidence showing that he satisfies the risk-utility test.
CONCLUSION
For the reasons explained above, Cottrel’s Rule 60(b) motion (Dkt. No. 192) is denied. In
light of the Seventh Circuit’s opinion in Ruppell v. CBS Corp., 701 F.3d 1176 (7th Cir. 2012),
plaintiff Yasser Assaf must put on sufficient evidence at trial to carry his burden under the
risk-utility test. Assaf’s failure to put on such evidence will result in the granting of a motion for
judgment as a matter of law against him. The parties are again encouraged to discuss settlement,
taking into account Ruppell’s clarification of the law applicable in this case.
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ENTER:

_______________________________
JAMES F. HOLDERMAN
Chief Judge, United States District Court
Date: March 28, 2013

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