Schuring et al v. Cottrell, Inc. et al

Filing 121

MEMORANDUM Opinion and Order signed by the Honorable Virginia M. Kendall on 3/27/2017. The Court denies Cottrell's Motion to Bar Plaintiffs Expert 97 anddenies its Motion for Summary Judgment 94 against the Schurings for Counts I-IV and XIII of their Complaint. Mailed notice(lk, )

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

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Gregory Schuring and Mary Schuring,
Plaintiffs,
v.
Cottrell, Inc. and Casses Corporation,
Defendants.

No. 13 C 7142
Judge Virginia M. Kendall

MEMORANDUM OPINION AND ORDER
Plaintiff Gregory Schuring and his spouse, Mary Schuring, brought this action against
Defendant Cottrell, Inc.1 after Gregory sustained injuries in a fall from a Cottrell-manufactured
trucking rig during the course of his work as a truck driver hauling cars. Plaintiffs filed state
claims in Illinois against Cottrell, and Cottrell removed the state action to this Court pursuant to
diversity jurisdiction. (Dkt. 2.) Gregory Schuring seeks damages for strict product liability
(Count I), product negligence (Count II), implied warranty (Count III), and willful and wanton
conduct (Count IV), while Mary Schuring seeks to remedy her loss of consortium (Count XIII).
Cottrell moves this Court to bar Plaintiffs’ expert, Clarke Gernon, from testifying about the
unreasonable danger posed by the design of Cottrell’s trucking rig [97] and moves for summary
judgment pursuant to Federal Rule of Civil Procedure 56. [94] For the following reasons, the
Court denies both motions.

1

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.)

1

BACKGROUND
The parties do not dispute the below facts unless otherwise noted.
On September 3, 2011, Plaintiff Gregory Schuring (“Schuring”) was working as a car
hauler for Cassens Transport Company, Inc., delivering automobiles to dealerships in Illinois.
(Dkt. 107, Plaintiffs’ Response to Defendant Cottrell’s LR 56.1 Statement of Material Facts, ¶¶
1, 3, 5-6.)

He drove a rig made by Defendant Cottrell, Inc. (“Cottrell”), which designs,

manufactures, and sells automobile transport trailers. (Id., ¶¶ 2, 6.) At his last stop of the day,
he went to unload two Nissan Jukes. (Id., ¶ 5.) Both vehicles sat on the upper deck of the rig –
one in the “No. 6” position, towards the front of the truck over its cab, and the other in the “No.
8” position, towards the rear. (Id., ¶ 7; Dkt. 109, Cottrell’s Response and Objections to Plaintiffs’
Statement of Additional Facts, ¶ 2.) Schuring climbed to the upper deck, still elevated, and tried
to walk from the No. 6 position in the front to the No. 8 position in the rear.2 (Dkt. 107, ¶¶ 6, 11;
Dkt. 105-2, Schuring Dep., at 152, 149:5-21.) In doing so, Schuring crossed over the middle
position, No. 10. (Dkt. 107, ¶ 11; Dkt. 109, ¶ 2.) He gripped the bar adjacent to position No. 10
and attempted to step with his right foot onto a narrow steel beam that served as the outer rail of
position No. 8.3 (Dkt. 109, ¶¶ 6-7; Dkt. 105-2, at 15, 6:3-7.)4 His right foot slipped on a

2

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.)
3
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.
4
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,
771 F.3d 1001, 1005-06 (7th Cir. 2014) (where expert report “filed with the district court … could not be admitted
into evidence without an affidavit attesting to its truthfulness” based on Federal Rule of Civil Procedure 56(e)(3) and
Federal Rule of Evidence 901(a)). (See e.g., Dkt. 109, ¶¶ 6-7.) The parties in Estate of Brown also failed to depose
proffered expert William Gault, so the absent affidavit in that case proved fatal to the expert report’s admissibility
without another means by which Gault could attest to the truthfulness of his statements. See Estate of Brown v.

2

substance thought to be hydraulic fluid and wedged between the deck’s outer rail and its
“flipper,” a metal hinge used to bridge positions No. 8, 10, and 6 so that vehicles drive on the
upper deck. (Dkt. 107, ¶¶ 13, 15; Dkt. 109, ¶ 8; Dkt. 105-7, Gernon Dep., at 36, 139:4-140:25.)
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 base of the grab-bar at position No. 10 in order to free his foot and himself.5 (Dkt.
107, ¶ 17; Dkt. 109, ¶ 10.) Schuring successfully unhooked his right foot, but when he did, he
fell to the ground and landed on his left buttocks. (Dkt. 109, ¶¶ 10, 11; Dkt. 105-2, at 166, 163:2164:9; 175-181, 172:21-178:5.)
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, ¶
3.) 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 Schuring, he has seen a couple of car hauler rigs that have posts and cable guard
Thomas, 771 F.3d at 1006. Here, Gernon attests in his deposition to the authenticity of the photographs of the
original Cottrell rig and the Sure Footing system, so he does not face the same challenge, and Plaintiffs’ facts based
on these can be admitted. (See Dkt. 105-7, at 5, 13:2-30; 14:5-10; at 6, 22:8-13; 23:23-24:14; see also, Dkt. 105-1;
Dkt. 105-10.) Cottrell also objects to the use of video surveillance for the same reason, but neither motion turns on
the use of the only paragraph in the Plaintiffs’ Supplement Statement of Facts that cites to this evidence, so the
Court need not resolve its admissibility at this time. (See Dkt. 109, ¶ 20.)
5
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.)

3

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, ¶ 1.) 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.)

4

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.)
DISCUSSION
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 Gernon 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 Cottrell’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 Cottrell’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., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469
(1993).” Lewis v. CITGO Petroleum Corp., 561 F.3d 698, 705 (7th Cir. 2009) (citing Naeem v.
McKesson Drug Co., 444 F.3d 593, 607 (7th Cir. 2006)). Rule 702 charges trial judges with
acting as “gatekeeper[s] with respect to testimony proffered under Rule 702 to ensure that the
testimony is sufficiently reliable to qualify for admission.” Mihailovich v. Laatsch, 359 F.3d
892, 918 (7th Cir. 2004) (citing Kumho Tire Co. v. Carmichael, 526 U.S. 137, 147, (1999)).
“The purpose of [the Daubert ] inquiry is to vet the proposed testimony under Rule 702's

5

requirements that it be ‘based on sufficient facts or data,’ use ‘reliable principles and methods,’
and ‘reliably appl[y] the principles and methods to the facts of the case.’” Lapsley v. Xtek,
Inc., 689 F.3d 802, 804 (7th Cir. 2012) (quoting Fed. R. Evid. 702).
In evaluating whether an expert's proposed testimony meets the Daubert standard, the
Court “scrutinize[s] 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, 689 F.3d at 805 (quoting Kumho
Tire, 526 U.S. at 152). Whether to admit expert testimony rests within the discretion of the
district court. See id., 689 F.3d at 810 (“[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.’”) (quoting Bielskis v. Louisville Ladder, Inc., 663
F.3d 887, 894 (7th Cir. 2011)). The expert’s proponent bears the burden of demonstrating that
the

testimony

would

satisfy

the

Daubert

standard

by

a

preponderance

of

the

evidence. Lewis, 561 F.3d at 705; see also Fed. R. Evid. 104(a) (“The court must decide any
preliminary question about whether a witness is qualified....”); Fed. R. Evid. 702 advisory
committee’s note to 2000 amendment.
Courts apply the Daubert framework to Rule 702 using a three-part analysis. Myers v.
Ill. Cent. R.R. Co., 629 F.3d 639, 644 (7th Cir. 2010). First, the Court must determine whether
knowledge, skill, experience, training, or education qualify the proposed witness as an expert. If
so, the Court must decide whether the reasoning or methodology underlying the expert’s
testimony is reliable. If the proposed expert meets both requirements, the Court 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, 629 F.3d at 644 (citing Ervin v.

6

Johnson & Johnson, Inc., 492 F.3d 901, 904 (7th Cir. 2007)); see also Ortiz v. City of
Chicago, 656 F.3d 523, 526 (7th Cir. 2011). The Court only addresses those opinions brought to
the Court's attention and will not separately probe to issue sua sponte determinations regarding
the admissibility of each statement. See, e.g., Goldberg v. 401 North Wabash Venture LLC, No.
09 C 6455, 2013 WL 212912, at *1 n.1 (N.D.Ill. Jan. 18, 2013).
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 cars, 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 mischaracterizes 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, 593 F.3d 610, 617

7

(7th Cir. 2010) (citing Berry v. City of Detroit, 25 F.3d 1342, 1351 (6th Cir.1994)); see e.g., Lott
v. ITW Food Equip. Grp. LLC, No. 10 CV 1686, 2013 WL 3728581, at *6, 14 (N.D. Ill. July 15,
2013) (holding that mechanical engineer proffered as expert witness need not have experience
engineering the particular piece of equipment at issue). For example, courts often find generalist
physicians competent to testify about medical problems typically treated by specialists if the
opinion does not require specialized knowledge.

See Gayton, 593 F.3d at 617 (citations

omitted). A doctor who is not a cardiologist or pharmacist may testify that a combination of
medications and symptoms contributed to a plaintiff’s death where the effects of resulting
vomiting are not specialized knowledge, but she may not qualify to testify that a particular
medication would have prevented the death. See id. An expert witness does not even have to
offer “scientific” testimony as long as it is within his competence. See Tuf Racing Prods., Inc. v.
American Suzuki Motor Corp., 223 F.3d 585, 591 (7th Cir. 2000) (citations omitted).
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 the record suggests, and Cottrell does not argue, that fall protection
design for trucking rigs is so specialized that someone with Gernon’s mechanical engineering
background would not qualify to opine on the issue. (See id., at 1.)
Of course, a mechanical engineer does not necessarily qualify to speak to all product
design questions.

See Gayton, 593 F.3d at 617.

8

Cottrell points to cases where proposed

witnesses did not qualify as experts without more particularized backgrounds. See e.g., Padilla
v. Hunter Douglas Window Coverings, Inc., 14 F.Supp.3d 1127, 1131-32 (N.D. Ill. 2014); Moore
v. P & G-Clairol, Inc., 781 F. Supp. 2d 694, 704 (N.D. Ill. 2011); Edwards v. Permobil, Inc., No.
11-CV-1900-SSV-DEK, Dkt. 208 (E.D. La. Aug. 21, 2013). Yet none of these cases directly
apply. Padilla struck an expert witness who “admitted during his deposition that he has no
practical experience or training in the field of window blind design…” See e.g., Padilla, 14
F.Supp.3d at 1132. But in that case, unlike here, the proffered witness based his expertise on his
tenure as Commissioner on the United States Consumer Production Safety Commission without
any training as an engineer, which he conceded would be necessary for him to understand how
window blinds open and close. See e.g., Padilla, 14 F.Supp.3d at 1131-32. Similarly, in Moore
v. P & G-Clairol and Edwards, the mechanical engineers proffered as experts – including
Gernon himself in the latter – did not possess the specialized psychological expertise to qualify
to speak on whether product instructions or warning labels would properly caution users against
their misuse. See e.g., Moore v. P & G-Clairol, Inc., 781 F. Supp. 2d at 704; Edwards, No. 11CV-1900-SSV-DEK. But Gernon does not opine on any warning labels or instructions that
drivers would need to interpret. (See Dkt. 105-6, at 3-6.)
Gernon’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, 2013 WL 3728581 at *14. More on point, Gernon’s qualifications and testimony
mirror that of Dr. Gerald Micklow in Hasan v. Cottrell, Inc., whose mechanical engineering
expertise qualified him to opine about the fall protection design on a Cottrell trucking rig
because such questions do not require “such a highly specialized analysis” that a general
background would not sufficiently prepare an expert witness to answer the questions asked on

9

such design. See e.g., Hasan v. Cottrell, Inc., No. 10 C 5534, 2014 WL 4124254, at *3 (N.D.Ill.
Aug. 21, 2014). Gernon’s lack of specialization may affect the weight of his opinions, but does
not preclude their admissibility. See e.g., Lott, 2013 WL 3728581 at *14 (citing Loeffel Steel
Prods., Inc., 372 F.Supp.2d 1104, 1113 (N.D.Ill. 2005)). Far from disqualifying him, the Court
finds that the breadth and depth of Gernon’s mechanical design expertise will sufficiently
prepare him to analyze the feasibility and utility of the various safety mechanisms at issue in the
design of this Cottrell trucking rig. See Gayton, 593 F.3d at 617. For these reasons, the Court
finds Gernon’s expert qualifications sufficient for the opinions he offers.
2. Reliability of Methodology
Cottrell next argues that Gernon 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; Dkt. 105-7, at 31-32,
120:123-121:12; 48 at 186:18-187:14.)
Courts value the testing of alternative designs to form the basis of opinions offered about
them in product defect cases. See Bielskis, 663 F.3d at 895; Dhillon v. Crown Controls Corp.,
269 F.3d 865, 870 (7th Cir. 2001); Bourelle v. Crown Equipment Corp., 220 F.3d 532, 535-36
(7th Cir. 2000) (citing Cummins v. Lyle Indust., 93 F.3d 362, 368-70 (7th Cir. 1996)); see e.g.,
Hasan, 2014 WL 4124254 at *3. However, it does not follow that the law therefore requires
testing. “Hands-on testing of an alternative design offered by an expert is not an absolute
prerequisite to the admission of expert testimony that a design is defective in a products liability

10

action.” Dhillon, 269 F.3d at 865. Testing a theory provides but one measure of its reliability.
See e.g., Hasan, 2014 WL 4124254 at *10.
More accurately, Daubert looks to whether the theory has been or can be tested.6 509
U.S. at 593. Rule 702 seeks to ensure that expert witnesses use the intellectual rigor required in
their professional work. Cummins, 93 F.3d at 369 (citations omitted). This can be accomplished
a number of ways, including personal experiments or observations.

Id. (citing Porter v.

Whitehall Labs., Inc., 9 F.3d 607, 614 n.6 (7th Cir. 1993); see e.g., Hasan, 2014 WL 4124254 at
*4; Lott, 2013 WL 3728581 at *20. Cf. Winters v. Fru-Con Inc., 498 F.3d 734, 742-43 (7th Cir.
2007) (affirming court’s exclusion of expert witnesses where they failed to test and “failed to
utilize any other method of research to compensate for their lack of alternative testing,” such as
“making proper personal observations”). For example, the Hasan court admitted the expert to
opine on: the unreasonable danger incurred by inadequate fall protection mechanisms on the
Cottrell rig at issue, which could have included “handholds, catwalks, friction increasing
material, and/or flexible safety netting”; the foreseeability of injury; and the feasibility of the
alternative design. See e.g., Hasan, 2014 WL 4124254 at *1-2, 5 (internal quotations omitted).
There, the expert based his opinions on a review of photos, patents, and discussions about the
alternative design without testing or personal observing the alternative design. See e.g., id. at *12, 5 (internal quotations omitted). The reliability of his method sufficed relative to the simplicity
of the design challenged and additional safety features proposed. See e.g., id. at *4-5.
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
6

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, 269 F.3d at 593-94.

11

safety platform, and a moveable safety platform. (See Dkt. 105-6, at 3-6.) See e.g., Hasan, 2014
WL 4124254 at *1-2, 5 (internal quotations omitted). Like the expert in Hasan – also a
mechanical engineer – Gernon has not per se tested the alternative design but has formed his
opinions through reviewing photographs and patents of these designs, as well as photographs of
the rig in question. (See Dkt. 105-6, at 3-9.) See e.g., id. at *1-2, 5 (internal quotations omitted);
Lott, 2013 WL 3728581 at *8, 20 (expert permissibly analyzed alternative design with deposition
transcripts, exhibits, and photographs, without testing).

Gernon took even further steps,

including observing the moveable safety platform design in person and reviewing witness
depositions. (See Dkt. 105-6, at 3-9.)
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, 2013 WL 3728581 at *8, 20

(alternative design expert opinion admissible without testing where design was otherwise
available and not new). Even Sure Footing moveable safety platforms, which have yet to be
formally tested but have been installed on some trucks, feature enhanced designs of safety
mechanisms akin to the catwalks that Cottrell already has installed on the upper decks of its rigs.
(See Dkt. 105-8, at 6, 15:14-16:19; at 7, 21:9-19, at 12, 41:6-17.) The Court also questions the
practicality. Requiring physical testing for alternative designs before an expert can opine on
them could create such a substantial upfront expense that such evidence would prove “cost

12

prohibitive for the vast majority of plaintiffs.” See e.g., Traharne v. Wayne/Scott Fetzer Co., 156
F.Supp.2d 697, 712-13 (N.D.Ill. 2001), aff’d 156 F.Supp.2d 717 (N.D.Ill. 2001).
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, 269 F.3d at 869 (citing to Cummins, 93 F.3d at
369). Gernon observed that the second edition of the movable safety platform fit the rig at the
Sure Footing facilities.7 (See Dkt. 109, ¶ 18.) Although he did not have access to a figure
estimating the cost of the updated version, he contemplated the cost of the first version, which its
creator estimated to be about $3,000 per side. (Dkt. 107, ¶¶ 31-33; Dkt. 109, ¶ 19; Dkt. 105-8, at
9, 27:11-22; Dkt. 105-7, at 27, 104:12-15.) Gernon similarly did not have a figure to ballpark the
maintenance costs, but projected that they would be minimal. (Dkt. 107, ¶¶ 31-33; Dkt. 105-7, at
27, 103:15-104:21.) Even if the clarity of Gernon’s analysis leaves something to be desired,
such weakness affects the weight of his testimony, not its admissibility. See NutraSweet Co. v.
X-L Engineering, Co., 227 F.3d 776, 789 (7th Cir. 2000); see e.g., Hasan, 2014 WL 4124254 at
*5; Traharne, 156 F.Supp.2d at 713 (leaving trier of fact to determine credibility of electrical
engineer expert who predicated opinions on generally accepted design principles and expertise).
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, 509 U.S. at 593;
Cummins, 93 F.3d at 369 (citations omitted); Tuf Racing Prods., Inc., 223 F.3d at 591; see e.g.,
Hasan, 2014 WL 4124254 at *4; Lott, 2013 WL 3728581 at *20. Cf. Winters, 498 F.3d at 74243. Particularly in light of his background, the relative simplicity of the safety features in

7

Plaintiff’s witness Chris Hanks testified that he could not fit version one onto a Cottrell rig. (Dkt. 105-8, at 11,
35:14-36:1.)

13

question, and his consideration of the facts available to him through personal observation,
photographs, patents, depositions, and other documents, the Court finds Gernon’s proffered
opinions sufficiently reliable for admission. See e.g., Hasan, 2014 WL 4124254 at *4-5; Lott,
2013 WL 3728581 at *8, 20.
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, 629 F.3d at
644 (citing Ervin, 492 F.3d at 904); see also Ortiz, 656 F.3d at 526. The Rule’s basic standard of
relevance is “liberal,” including evidence that has “any tendency to make the existence of any
fact that is of consequence to the determination of the action more probably or less probably than
it would be without the evidence.” Daubert, 509 U.S. at 587 (citing Fed. R. Evid. 401).
The Defendant only argues that Gernon’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 plaintiff’s injuries. See e.g.,
Rodriguez v. Glock, Inc., 28 F. Supp. 2d 1064, 1070 (N.D. Ill. 1998). Cottrell points to a series
of moments leading up to Schuring’s injury that, Cottrell argues, intervene and break the chain of
causation arising from any defect in Cottrell’s rig, including that Schuring did not lower the
upper deck into the proper position for unloading, that he failed to inspect for hydraulic fluid,
and that he intentionally decided to fall once his foot wedged and he fell upside down. (Dkt. 98,
at 11.) However, as discussed below, the parties dispute the facts underlying each of these

14

moments. (See Dkt. 107, ¶¶ 6, 11, 13, 18-19, 24-25.) Gernon’s opinions on the product defect
and alternative design would help to the Court to understand the purported foreseeability and
unreasonable danger of the design. Cf. Rodriguez, 28 F. Supp. 2d at 1070. Gernon’s testimony
and cross-examination would allow a factfinder to weigh the extent to which the rig’s design
could, or could not have been, different, and how this might have changed the outcome of
Schuring’s incident. Such findings factor into causation and thus all of the Schurings’ claims
against Cottrell. See e.g., id.; see also Mikolajczyk v. Ford Motor Co., 231 Ill.2d 516, 543 (Ill.
2008) (requiring proximate cause element for strict liability cases in Illinois); Caterpillar, Inc. v.
Usinor Industeel, 393 F.Supp.2d 659, 685 (N.D.Ill. 2005) (implying proximate cause element for
implied warranty); Krywin v. Chicago Transit Authority, 238 Ill.2d 215, 235 (Ill. 2010)
(requiring proximate cause finding for willful and wanton conduct claim); Johnson v. May, 223
Ill. App. 3d 477, 488 (5th Dist. 1992); Malfeo v. Larson, 208 Ill. App. 3d 418, 425 (1st Dist.
1990) (loss of consortium claims rely on negligence finding for spouse). Further, Schuring’s
strict product liability claim relies in part on expert opinion in order to establish that the design
was unreasonably dangerous. See Show v. Ford Motor Co., 659 F.3d 584, 587 (7th Cir. 2011).
Gernon thus offers relevant opinions, and his testimony qualifies him to serve as an expert
witness in this case under Daubert. 509 U.S. at 587; Myers, 629 F.3d at 644 (citing Ervin, 492
F.3d at 904); see also Ortiz, 656 F.3d at 526.
II. Motion for Summary Judgment
A. Legal Standard
The Court proceeds to consider Cottrell’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

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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,
698 F.3d 561, 564 (7th Cir. 2012) (citation omitted). “A factual dispute is ‘genuine’ only if a
reasonable jury could find for either party.” Nichols v. Mich. City Plant Planning Dep’t, 755
F.3d 594, 599 (7th Cir. 2014) (internal quotation marks and citation omitted). Because the
plaintiff bears the ultimate burden of persuasion, the defendant’s summary judgment burden
“may be discharged by ‘showing’—that is, pointing out to the district court—that there is an
absence of evidence to support the nonmoving party’s case.” Celotex Corp. v. Catrett, 477 U.S.
317, 325 (1986); see also Andrews v. CBOCS W., Inc., 743 F.3d 230, 234 (7th Cir. 2014).
“Upon such a showing, the nonmovant must then ‘make a showing sufficient to establish the
existence of an element essential to that party's case.’” Modrowski v. Pigatto, 712 F.3d 1166,
1168 (7th Cir. 2013) (quoting Celotex, 477 U.S. at 322). Summary judgment is appropriate
where “no reasonable jury could rule in favor of the nonmoving party.” See Bagwe v. Sedgwick
Claims Mgmt. Servs., Inc., 811 F.3d 866, 879 (7th Cir. 2016) (citation omitted).
B. Product Defect
Cottrell argues that 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, 659 F.3d at 585-86; see e.g.,

16

Mikolajczyk, 231 Ill.2d at 555-56. Plaintiffs use the test to demonstrate the unreasonable danger
element in a product liability claim. See Show, 659 F.3d at 585-86. A risk-utility analysis
therefore provides a relevant consideration in a strict product liability case, but it is not an
element of the claim that the plaintiff must prove. See e.g., Mikolajczyk, 231 Ill.2d 516 at 546.
Beyond consumer expectations, the risk-utility test may consider: the utility to the individual
user or public as a whole; the magnitude and probability of foreseeable risks of harm; product
instructions and warnings; the range of product choices; whether the design conformed to
industry standards and regulations; the availability and feasibility of alternative designs at the
time of the product’s manufacture; and the likely effects of an alternative design on production
costs, longevity, maintenance, and repair. See Show, 659 F.3d at 586-87; see e.g., Jablonski v.
Ford Motor Company, 2011 IL 110096, ¶ 85 (Ill. 2011); Mikolajczyk, 231 Ill.2d at 555-56.
Cottrell predicates its argument on the assertion that Gernon does not conduct any riskutility analysis, as stated in his deposition and as shown in his expert report. (See Dkt. 95, at 2;
Dkt. 105-6; Dkt. 105-7, at 50, 194:18-195:14.) First, Cottrell overstates Gernon’s admission.
Cottrell relies on the below portion of Gernon’s deposition:
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.

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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 mechanisms, 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, 659
F.3d at 586-87; see e.g., Jablonski, 2011 IL 110096 ¶ 85; Mikolajczyk, 231 Ill.2d 516 at 555-56.
(See Dkt. 105-6, at 3-6.) Yet, in preparing his report, Gernon certifies that he reviewed materials
including all witness depositions, which contained facts relating to other risk-utility factors. (See
id., at 7.) For instance, as to the magnitude and probability of foreseeable risks, other witness
depositions attest to earlier deaths caused falls from other double-decker trucking rigs, including
one Cottrell rig. (See Dkt. 105-8, at 6, 15: 7-21; Dkt. 105-4, at 10, 32:14-33:19.) Similarly,
Cottrell points to testimony by Gernon stating that he did not consider the cost of the alternative
design that he proposed, nor installation or maintenance costs. (Dkt. 95, at 3; Dkt. 105-7, at 27,
103:15-104:19; 53, 208:4-10.) However, other parts of the record report price points that Gernon
would have considered within his reported document review. This includes the estimate from

18

Howes that Cottrell spent about $300-400 in materials plus labor costs to install the material
safety devices that it added to the head ramp in 2009, which could help to estimate what would
have been the cost of similar cables and grab-bars. (Dkt. 105-4, at 55:22-56:2; Dkt. 104, at 9.)
The record also includes Hanks’s testifying that version one of the Sure Footing design would
have cost $3,000 per side, even though he could not price version two. (See Dkt. 105-8, at 9,
27:11-22.) Gernon had all of the above factors at his disposal to consider, and need not have
considered them all explicitly in his report in order for them to have factored into his analysis.
See Show, 659 F.3d at 586-87; see e.g., Jablonski, 2011 IL 110096 ¶ 85; Mikolajczyk, 231 Ill.2d
516 at 555. Nor must the risk-utility analysis consider every possible factor. See Show, 659 F.3d
at 586; see e.g., Hasan, 2014 WL 4124254 at *5 (citing Jablonski, 2011 IL 110096, ¶¶ 85-86).
Lastly, while the risk-utility analysis does rely on 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.

Rather, that

responsibility remains with the plaintiff, who must establish sufficient risk-utility evidence in the
record. See Show, 659 F.3d at 585-88 (product liability can be established where the “plaintiff”
introduces evidence about consumer expectations or product design).8 As discussed above, the
record indeed speaks to elements of the risk-utility analysis even where Gernon does not speak to
these directly. Accordingly, summary judgment cannot be granted on these grounds.
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
8

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, 659 F.3d at 585 (citing Mikolajczyk, 231 Ill.2d at 526-27) (internal quotations omitted).

19

Plaintiffs’ injuries. (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.9 Plaintiffs argue that Cottrell should have been able to
foresee the chain of events that led to Schuring’s fall, however convoluted, because of the rig’s
design defects.10 (Dkt. 105, at 6-7.)
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, 2008 WL 4530695, at *10 (S.D.Ill. Oct. 7, 2008) (citing Wintz By and Through Wintz
v. Northrop Corp., 110 F.3d 508, 515 (7th Cir. 1997)).

Proximate cause shows that the

plaintiff’s injury occurred through a “natural and continuous sequence of events unbroken by any
effective intervening cause.” See e.g., Hill v. Brass Eagle, Inc., No. 15 C 368, 2016 WL
4505170, at *9 (N.D.Ill. Aug. 29, 2016) (citing Kleen v. Homak Mgf. Co., 321 Ill.App. 3d 639,
641, 749 N.E.2d 26, 29 (2001)). It only becomes a question of law where no material fact issues
remain, or “only one conclusion is clearly evident” to a reasonable factfinder. Id.; Rodriguez, 28
F.Supp.2d at 1070. The question comes down to whether the defendant could foresee the
incident. See e.g., Hill, 2016 WL 4505170 at *9 (citing Lee v. Chicago Transit Auth., 152 Ill.2d
432, 456, (Ill. 1992)). Proximate cause is “ordinarily a question for the jury.” See e.g., id. at *9
(quoting Kleen, 749 N.E.2d at 29); Rodriguez, 28 F.Supp.2d at 1070.
9

In its Motion for Summary Judgment, Cottrell 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, 231 Ill.2d at 543 (required for strict product
liability); Caterpillar, Inc., 393 F.Supp.2d at 685 (required for implied warranty); Krywin, 238 Ill.2d at 235
(required for willful and wanton conduct); Johnson, 223 Ill.App.3d at 488; Malfeo, 208 Ill.App.3d at 425 (1st Dist.
1990) (required for spouse’s negligence claim in order to show loss of consortium).
10
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.

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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, 139:4140:25), which could contribute to a factfinder’s understanding about whether or not Cottrell
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 would have been feasible for Cottrell 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.; Dkt. 105-8, at 11-15, 35:19-36:1; 52:9-15). However, Hanks also says that Sure

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Footing can modify any car hauler to fit the moveable platform system. (See id. at 10, 31:1433:13; 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 Schuring’s fall, specifically Sure Footing movable
platforms, which a factfinder 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 cause. Plaintiffs, however, did not see his decision
as a choice. As Schuring concluded about his thought process, “There was nothing else I could
do.” (Dkt. 105-2, at 167, 164:5.) Under these circumstances, a factfinder would be best situated
to make the call on whether Schuring made a genuine choice that provided a superseding factor
that broke any causation resulting from the design of Cottrell’s rig.
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 Schuring 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.)

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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, 2016
WL 4505170, at *9 (internal citation omitted).

A reasonable factfinder could conclude a

narrative distinct from that put forth by Cottrell. Instead of seeing Schuring’s fall as the result of
a series of coincidences and bad choices on his part, she could also resolve that Cottrell knew or
should have known about the risk that drivers encountered on their upper decks given the earlier
incidents and that, regardless, the company decided against retrofitting the rig with safety
measures at positions No. 8 and 10 without a sufficient basis in the relative utility, risks, and
costs. As Hanks testified, a fall from the upper deck of another rig has occurred before with far
graver consequences, so Schuring’s circumstances are not necessarily so unusual that a second
narrative cannot stand. (See Dkt. 105-8, at 6, 15: 7-21.) Because no single “clearly evident”
conclusion can be drawn, and material fact issues remain, the Court must allow a jury to make
these determinations. Id.; Rodriguez, 28 F.Supp.2d at 1070. Accordingly, the Court denies
Cottrell’s Motion for Summary Judgment.
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.

________________________________________
Virginia M. Kendall
United States District Court Judge
Northern District of Illinois
Date: _3/27/2017___

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