Smith v. Wacker Nueson Corporation et al
Filing
111
ORDER denying 95 Motion for Summary Judgment. Signed by Chief Judge David R. Herndon on 4/30/12. (klh, )
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
MARK S. SMITH, JR.,
Plaintiff,
v.
No. 09-CV-1064-DRH-DGW
WACKER NEUSON CORPORATION
and WACKER NEUSON SE,
Defendants.
____________________________________
WACKER NEUSON CORPORATION
and WACKER NEUSON SE,
Third-Party Plaintiffs,
v.
FONTANA CONTRACTING COMPANY
and WESCON PRODUCTS COMPANY,
a subsidiary of Latshaw Enterprises, Inc.,
Third-Party Defendants.
MEMORANDUM and ORDER
HERNDON, Chief Judge:
I. Introduction and Background
Pending before the Court is Wescon Products Company’s motion for summary
judgment (Doc. 95). Wescon Products Company (“Wescon”) argues that it is entitled
to summary judgment as the discovery reveals no evidence of an unreasonably
dangerous and defective condition of the control cable at the time it left the control
of Wescon which was a proximate cause of Smith’s injury nor does it reveal any
evidence of negligence on the part of Wescon which was a proximate cause of the
injury; nor does the evidence support a cause of action for implied warranty. Wescon
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further argues that the discovery and evidence reveals that there was no knowledge
on the part of Wescon concerning the manner in which the control cable was designed
or protected when incorporated into the design of the one-ton asphalt roller. Wacker
Neuson Corporation (“Wacker”) opposes the motion (Doc. 100). Based on the
following, the Court denies the motion for summary judgment.
Mark S. Smith Jr. sued Wacker for personal injuries he suffered while
employed by Fontana Contracting Company (“Fontana”). While on the job, Smith was
struck by a one-ton asphalt roller manufactured by Wacker, which contained a drive
control cable designed and manufactured by third party defendant Wescon. Smith
sued Wacker alleging, inter alia, that the design of the roller was unreasonably
dangerous because it did not contain an automatic fail safe or emergency stop
mechanism.
Thereafter, Wacker filed third party actions against Fontana and
Wescon. Smith settled with Fontana and Wacker and the Court issued Orders finding
good faith settlements on August 29, 2011 and on October 13, 2011 (Docs. 83 & 89,
respectively).
Wacker continues to pursue its third party claim for contribution against
Wescon based upon strict liability, negligence, and implied indemnity. In addition
to alleging that the Wescon-designed cable was defective, Wacker alleges that Wescon
was negligent by failing to warn its users of the defective condition of the cables;
failing to retrofit or correct known flaws in the cables; failing to adequately test the
cable to ensure that they were “corrosion resistant” before advertising to the public
that they were; failing to warn its customers that its cables could fail due to corrosion
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under normal , intended use; failing to provide any literature or instructions as to the
limitations of the cables; and by representing that the cables would not corrode
without obtaining test data to support that claim.
II. Facts
On October 8, 2008, plaintiff Mark Smith was injured in a road paving project
when a Model RD11V asphalt roller designed, manufactured and distributed by
Wacker struck him in the leg. The Model RD11V roller contained a “Series 40 Armor
Core” push-pull cable designed, manufactured, sold and distributed by Wescon. That
type of push-pull cable was designed by Wescon in the early 1990s. The purpose of
the push-pull cable, generally, is to transfer a load from an input device, such as a
lever on a Wacker roller, to an output device on a piece of equipment, normally the
hydrostatic fluid pump on a Wacker roller. On the day of the accident, the Wescon
40 Series push-pull cable fractured and the Wacker roller ran into Smith.
Wescon
prepared and distributed a sales catalog to Wacker regarding the push-pull cable. In
the catalog on page 3, Wescon, inter alia, made the following representations with
respect to the 40 Series push-pull cable:
Wescon’a long-lay conduit construction incorporates multiple strands
of oil-tempered carbon spring steel wires to withstand high tension and
compression with minimum deflection under load while providing
superior protection for the load carrying core;
The extraordinary life of the conduit in Wescon controls is due to its
tough polyethylene covers;
These covers seal out environmental contaminants such as dirt and
moisture, while resisting abrasion and common solvents; and
Specifically formulated High Density Polyethylene liners (as well as
special formulations for high temperature applications) minimize
friction for maximum efficiency. The inside diameter is precisely
controlled, minimizing lost motion and premature wear.
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Further, the catalog states:
Weson’s Corrosion Resistant Design
All standard conduit fittings are plated steel. Guide tubes are nickelplated brass. Rods are stainless steel for corrosion resistance. In
addition, all bulk-packed Wescon cables are furnished with protective
vinyl caps installed over threads to prevent damage during shipment
and handling. Stainless steel conduit fittings and mounting hardware
are available for marine and other demanding applications.
III. Summary Judgment
A motion for summary judgment asks that the Court find that a trial based on
the uncontroverted and admissible evidence would-as a matter of law-conclude in the
moving party's favor and is thus unnecessary. See Fed. R. Civ. Pro. 56(c). When
evaluating a motion for summary judgment, the Court must give the non-moving
party the benefit of all reasonable inferences from the evidence submitted and resolve
“any doubt as to the existence of a genuine issue for trial ... against the moving party.”
Celotex Corp. v. Catrett, 477 U.S. 317, 330 n. 2, 106 S.Ct. 2548, 91 L.Ed.2d 265
(1986). Nevertheless, “the Court's favor toward the non-moving party does not extend
to drawing inferences that are supported by only speculation or conjecture.” Singer
v. Raemisch, 593 F.3d 529, 533 (7th Cir. 2010). The non-moving party must set
forth specific facts showing that there is a material issue for trial. Fed. R. Civ. Pro.
56(e); Celotex, 477 U.S. 317, 106 S.Ct. 2548, 91 L.Ed.2d 265. The key inquiry is the
existence of evidence to support a plaintiff's claims or affirmative defenses, not the
weight or credibility of that evidence, both of which are assessments reserved to the
trier of fact. See Schacht v. Wis. Dep't of Corrections, 175 F.3d 497, 504 (7th Cir.
1999).
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IV. Analysis
Wescon argues that there is no evidence that the cable was manufactured with
insufficient strength and that there is evidence that Wacker selected the cable that it
wanted to use from the specifications offered by Wescon.1 Further, Wescon maintains
that there is no evidence of any defect in the cable at the time it left Wescon’s control.
Wacker counters that it purchased the push-pull cable from Wescon based on the
representations made in Wescon’s sales catalog, including representations that the
Wescon-designed cable was “corrosion resistant” and contained seals which
prevented moisture and debris form infiltrating the cable. Wacker contends that
there are disputes of fact as to the condition of the cable at the time of the accident.
The Court agrees with Wacker.
Clearly, there are disputes of material as to whether the push-pull cable was
defective when it left the control of Wescon under both Illinois or Missouri law. See
Pasquale v. Speed Products Engineering, 166 Ill.2d 337, 351 (1995); Chubb Group
of Ins. v. C.F. Murphy & Associates, 656 S.W.2d 766 (Mo. App. 1983); Lewis v.
Envirotech Corp., 674 S.W.2d 105 (Mo. App. 1984). Wescon’s Senior Vice President
1
The Court also notes, as Wacker did, that Wescon’s motion for summary judgment is
insufficient and that Court could deny the motion on that basis alone. Wescon’s motion is
comprised exclusively of conclusory statements regarding the lack of evidence and its lack of
liability. It attaches several depositions to its summary judgment motion, but fails to point to
any particular evidence to support its conclusion. Courts are entitled to assistance from counsel,
and an invitation to search without guidance is no more useful than a litigant's request to a
district court at the summary judgment stage to paw through the assembled discovery material.
“‘Judges are not like pigs, hunting for truffles buried in’ the record.” Albrechtsen v. Bd. of
Regents, 309 F.3d 433, 2002 WL 31397690 (7th Cir. 2002), quoting United States v. Dunkel,
927 F.2d 955, 956 (7th Cir. 1991). Despite being insufficient, the Court will address the merits
of the motion.
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of Engineering, Mr. Anthony Beuglsdyk, confirmed that the push-pull cable is
intended for use by Wescon in outdoor construction equipment such as an asphalt
roller. Further, Beuglsdyk determined that the push-pull cable was defective. He
testified that the cable failed largely due to corrosion as the cable had “a lot of
corrosion” and “a lot of debris” and that although Wescon advertised the Series 40
armored core cable as resistant to corrosion, without testing corrosion resistance to
confirm such, the subject cable failed due to corrosion. Specifically, he testified that
the push-pull cable failed on the date of the incident due to corrosion resulting in part
from worn seals on the cable. Wescon had seen that failure mode on other occasions
before the accident, but neither warned its customers of that defect nor modified its
claim of “corrosion resistance.” Further, Beugelsdyk conceded that the type of pushpull cable used in the Wacker roller was never tested for corrosion resistance by
anyone. Beugelsdyk referred to the cable as defective in his own written report.
Further, Wescon’s Rule 26 liability expert, James Briem, wrote a report criticizing the
design of the push-pull cable as defective. Briem stated: “The push-pull cable failed
due to corrosive attack of the carbon steel cable.
At the time of the fracture,
corrosion had reduced the strength of the cable to about 10% of its original strength.”
Also, Wacker’s expert, Michael Rogers, determined that the design of the push-pull
cable was defective for its reasonable and intended use on outdoor construction
equipment, therefore, rendering the cable defective when it left Wescon’s control.
Based on the foregoing, the Court concludes that there are genuine issues of fact that
precludes summery judgment.
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As noted by the parties’ briefs, there seems to be a dispute as to whether
Missouri or Illinois law applies to this case. This issue has not been fully developed
by the parties and must be resolved prior to trial.2 Thus, the Court DIRECTS the
parties to brief this issue. The briefs shall be no longer than 10 pages in length and
the briefs are due on or before May 21, 2012.
V. Conclusion
Accordingly, the Court DENIES Wescon’s motion for summary judgment (Doc.
95). Further, the Court SETS this matter for Final Pre-trial Conference on July 12,
2012 at 1:30 p.m.
IT IS SO ORDERED.
David R.
Herndon
2012.04.30
14:34:46 -05'00'
Signed this 30th day of April, 2012.
Chief Judge
United States District Court
2
When a federal court hears a case in diversity, it applies the choice-of-law rules of the
forum state to determine which state's substantive law applies. Klaxon Co. v. Stentor Elec. Mfg.
Co., 313 U.S. 487, 496, 61 S.Ct. 1020, 85 L.Ed. 1477 (1941). Thus, the Court would ordinarily
follow Illinois choice of law to decide this issue. However, “[c]ourts do not worry about conflict of
laws unless the parties disagree on which state's law applies.” Wood v. Mid–Valley, Inc., 942 F.2d
425, 426 (7th Cir.1991). Moreover, failure to raise the issue can be considered a waiver. See
GATX Leasing Corp. v. Nat'l Union Fire Ins. Co., 64 F.3d 1112, 1115 n. 6 (7th Cir.1995).
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