Clark et al v. River Metals Recycling, LLC, et al

Filing 257

MEMORANDUM AND ORDER, The Court DENIES Clark's motion for reconsideration (ECF No. 249) and motion for a hearing on the same (ECF No. 250), as well as Sierra's motion to strike Clark's reply brief (ECF No. 254). Signed by Judge J. Phil Gilbert on 8/24/2018. (jdh)

UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
RICHARD A. CLARK,
Plaintiff,
v.

Case No. 3:15-cv-00447-JPG-RJD

RIVER METALS RECYCLING, LLC and
SIERRA INTERNATIONAL MACHINERY,
LLC,
Defendants.
MEMORANDUM AND ORDER
J. PHIL GILBERT, DISTRICT JUDGE
Plaintiff Richard Clark has asked the Court to reconsider—pursuant to Federal Rule of
Civil Procedure 59(e)—its decision to grant summary judgment to the defendants. (ECF No.
249.) The Court DENIES the motion.
I.

BACKGROUND
This is a products liability case about a man who was injured when he either fell or

jumped from a mobile RB6000 Logger/Baler: a car crusher. (See generally ECF No. 245.) The
Court granted summary judgment for the defendants when plaintiff Richard Clark failed to
present reliable expert testimony on any alleged design defect, which is a requirement of the
risk/utility test under Illinois law. Henry v. Panasonic Factory Automation Co., 396 Ill. App. 3d
321, 327, 917 N.E.2d 1086, 1092 (2009); Baltus v. Weaver Div. of Kidde & Co., 199 Ill. App. 3d
821, 834, 557 N.E.2d 580, 588 (1990); Show v. Ford Motor Co., 659 F.3d 584, 588 (7th Cir.
2011). The Court also found that Clark’s proposed expert—Dr. James Blundell—failed under the
standards outlined in Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993) and its
progeny. Clark had attempted to rely on the deposition testimony of some of defendant Sierra
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International Machinery, LLC’s employees in order to carry his burden, but that theory also
failed. (See ECF No. 245, pp. 13, 14.)
II.

LEGAL STANDARDS
Federal Rule of Civil Procedure 59(e) allows the Court to amend a judgment if the

movant “can demonstrate a manifest error of law or present newly discovered evidence.”
Obriecht v. Raemisch, 517 F.3d 489, 494 (7th Cir. 2008). A “manifest error” is a “wholesale
disregard, misapplication, or failure to recognize controlling precedent.” Burritt v. Ditlefsen,
807 F.3d 239, 253 (7th Cir. 2015) (internal quotations and citations omitted) (emphasis added).
This form of relief is only available if the movant clearly establishes the manifest error.
Harrington v. City of Chicago, 433 F.3d 542, 546 (7th Cir. 2006) (citing Romo v. Gulf Stream
Coach, Inc., 250 F.3d 1119, 1122 n. 3 (7th Cir. 2001)).
III.

ANALYSIS
A.

Errors of Law

Controlling precedent in this Court consists of (1) Supreme Court of the United States
decisions; (2) Seventh Circuit decisions; and (3) in diversity cases like this one, certain Illinois
state decisions. Decisions from other federal circuit courts—and especially unpublished district
court decisions—are not controlling precedent. So when Clark starts his brief by arguing that the
Court committed a manifest error of law by adjudicating the Daubert issue at the summary
judgment stage without holding oral arguments—because of cases like Cortes-Irizarry v.
Corporacion Insular De Seguros, 111 F.3d 184 (1st Cir. 1997), Padillas v. Stork-Gamco, Inc.,
186 F.3d 412, 418 (3d Cir. 1999), and Yow v. Cottrell, Inc., No. 3:04CV888 DRH, 2006 WL
2736122, at *10 (S.D. Ill. Sept. 25, 2006), opinion vacated in part on reconsideration, No. 3:04CV-888-DRH, 2007 WL 2229003 (S.D. Ill. Aug. 2, 2007)—he has certainly failed to establish

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that the Court failed to apply controlling precedent. And even if those cases applied here, none of
them support the proposition that the Court is required to hold oral arguments in every Daubert
dispute: (1) the First Circuit in Cortes-Irizarry did not mandate oral arguments, but instead said
that courts should generally use “great care” when adjudicating Daubert issues at the summary
judgment stage without the benefit of a hearing, 111 F.3d at 188; (2) the Third Circuit has since
limited Padillas to not require a hearing when, just like in this case, the “district court already
had before it the depositions and affidavits of plaintiff’s experts[,]” Oddi v. Ford Motor Co., 234
F.3d 136, 154 (3rd Cir. 2000); and (3) Yow cited no case law in its one-paragraph consideration
of the Daubert issue therein and is accordingly not persuasive in any sense.
Next, Clark argues that the Court failed to apply controlling precedent when deciding to
exclude Dr. Blundell’s expert testimony pursuant to Daubert. Basically, Clark argues that Dr.
Blundell (1) is highly qualified; (2) cited to an industry standard; and (3) was not required to
propose his own specifications for an alternative design. None of these arguments work. First,
the Court struck Dr. Blundell’s testimony because of his lack of methodology, not his
qualifications. (See ECF No. 245, pp. 9–13.) Second, the Court already noted that the industry
standard that Blundell cited did not require the alternative ladder design that Blundell
proposed—and he admitted as much at his deposition, when he said “I believe to make this
vehicle safe [a fixed ladder] has to be there but, I mean, there’s nothing in this standard that says
you have to have a fixed ladder.” (Id. at 12 [citing Blundell Dep. at 102:16–19, ECF No. 145,
Ex. H].) And contrary to Clark’s unsupported assertion in his 59(e) motion, a jury is not entitled
to hear Dr. Blundell’s “interpretation of the standard and why he believes it is relevant to his
opinions in this case” when Dr. Blundell already admitted that the standard does not apply. (Pl.’s
Mot. for Reconsideration, ECF No. 249, p. 6.)

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Third, Clark fails to adequately address the central reason for the Court’s exclusion of Dr.
Blundell’s testimony:
The Court is puzzled why it should admit expert testimony regarding safety
mechanisms that would allegedly help with routine maintenance when that
expert does not even know where that maintenance is supposed to be
performed. That alone disqualifies Dr. Blundell. But there are more reasons as
well. Notably, Dr. Blundell offered no calculations to support his theory, he does
not provide even a rough sketch of an alternative design, and his opinion is
nothing more than a “bare conclusion” that adds “nothing of value to the judicial
process.” McMahon v. Bunn-O-Matic Corp., 150 F.3d 651, 658 (7th Cir. 1998)
(quoting Mid–State Fertilizer Co. v. Exchange National Bank, 877 F.2d 1333,
1339 (7th Cir. 1989)).
(ECF No. 245, p. 12) (emphasis added). Clark instead argues that Dr. Blundell was not required
to propose his own specifications at all, and may rather state generally that the side of the
machine where the injury occurred should just mirror the other side of the machine. (Pl.’s Mot.
for Reconsideration, ECF No. 249, p. 6.) Clark argues in the same paragraph that an “alternative
feasible design already exists on the same piece of equipment and on other pieces of equipment
built by Defendant Sierra,” but he does not identify any portion of the record where Dr. Blundell
discussed this—so it does not appear relevant to the Daubert exclusion question. (Id.)
Next, Clark claims that the safety features in this case—chiefly, a ladder—are simple
enough for a layperson to understand, so expert testimony regarding the car crusher is not
required under Illinois law. For the reasons already explained in the Court’s prior decision, that
argument is wrong: the product in this case—an RB6000 mobile baler—is a highly specialized
piece of industrial machinery that no ordinary consumer will have purchased or even heard of.
Accordingly, the risk-utility test applied to this case—not the consumer expectations test—and
the risk-utility test requires the plaintiff to offer proof beyond the jury’s own experiences: such
as expert testimony on the feasibility of alternative designs, conformity with industry standards,
guidelines by industry associations, legislative criteria, and more. See, e.g., Henry v. Panasonic
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Factory Automation Co., 396 Ill. App. 3d 321, 327, 917 N.E.2d 1086, 1092 (2009) (affirming
summary judgment for the defendant when the plaintiff did not present expert testimony on the
design and manufacture of a “specialized piece of equipment” that required “specialized
knowledge”); Baltus v. Weaver Div. of Kidde & Co., 199 Ill. App. 3d 821, 834, 557 N.E.2d 580,
588 (1990) (expert opinion is necessary when the product involves “specialized knowledge or
expertise outside the layman’s knowledge”); Show v. Ford Motor Co., 659 F.3d 584, 588 (7th
Cir. 2011) (“absence of expert evidence…is fatal to plaintiffs' suit.”) There is no need to re-hash
any of this.
Clark also points to a few cases where Illinois state courts did not require expert
testimony, but none of them help his cause: (1) the Court already explained that Hernandez v.
Power Const. Co., 73 Ill.2d 90 (1978) deals with the absence of a ladder on some scaffolding in
an Illinois Structural Work Act case, which is quite different from the instant case; (2) Thacker v.
UNR Indus., Inc. 151 Ill.2d 343, 336 (1992) dealt with a scenario there “were numerous
witnesses who were able to describe the mechanics of asbestos movement because they were
able to see the ‘haze’ of asbestos which existed ‘throughout’ the plant,” while there were no
witnesses to Clark’s accident in this case; and (3) Ryan v. Blakey, 71 Ill. App. 3d 339, 353 (1979)
found that there was no need for an elaborate physical exhibit at trial to show how fluid flows
from one place to another, which, again, does not have much bearing here.
Clark makes one final argument: that he should be able to present the deposition
testimony of two of defendant Sierra’s employees—as well as Sierra’s expert witness—in order
to carry his burden under the risk-utility test. But the two employees—Antonio Torres and
Stephen Simmons—were never identified as expert witnesses by either party during this case,
and the deposition testimony that Clark seeks to use mainly consists of a series of “yes” and “no”

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questions and answers. That is not expert testimony sufficient to defeat a Daubert challenge in a
complex products liability suit, as this Court already explained at length. (ECF No. 245, pp. 13,
14.)
The third individual is Sierra’s expert: Michael Rogers. Clark believes that Rogers’s
deposition alone is enough to carry his burden under the risk-utility test regarding the absence of
ladders, guardrails, and the like on the car crusher. But Clark has waived this argument: he did
not make it in his response to the motions for summary judgment. Nichols v. Michigan City Plant
Planning Dep't, 755 F.3d 594, 600 (7th Cir. 2014) (citing Laborers' Int'l Union of N. Am. v.
Caruso, 197 F.3d 1195, 1197 (7th Cir. 1999)). Instead, Clark argued at that time: “we intend to
rely upon defendant’s experts (Mr. Torres, Mr. Simmons, Mr. Olds) principally on alternative
design; that is, with some safe way to mount and dismount from the machine which was Sierra’s
non-delegable duty.” (Pl.’s Resp. to Mot. for SJ, ECF No. 239, p. 19) (emphasis added). Clark
did later mention that “perhaps Mr. Rogers would be helpful on ‘toe boards’ (which we do not
suggest are common knowledge),” but that is it. (Id.) Identifying a witness who might be
“helpful on toe boards” in one sentence—in a case where the briefing rests almost entirely on
ladders (and to a much lesser extent, guardrails)—does not come remotely close to meeting
Clark’s burden to present expert testimony in a complicated products-liability case at the
summary judgment stage. Crespo v. Colvin, 824 F.3d 667, 673 (7th Cir. 2016) (“…perfunctory
and undeveloped arguments…are waived.”) (quoting United States v. Berkowitz, 927 F.2d 1376,
1384 (7th Cir. 1991)). In fact, Clark himself demonstrates in the instant briefing how perfunctory
his prior argument about Mr. Rogers was: he did not mention Mr. Rogers in relation to ladders—
his overarching theory in this case—until his Rule 59(e) motion, and then again develops that
argument in more detail in his reply brief to the defendants’ response to his 59(e) motion. These

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freshly minted arguments include new citations to deposition testimony, cases that did not appear
in Clark’s response brief at the summary judgment stage, and more. That is a textbook example
of waiver.
B.

Errors of Fact

To finish, Clark argues that the Court made several manifest errors of fact in its decision.
None of these arguments correctly represent the Court’s order. First, Clark says that the Court
incorrectly identified F.LLI Tabarelli S.p.A. as the assembler of the car crusher, when it was
actually Sierra that imported the machine into the country and attached it to the mobile trailer.
(Pl.’s Mot. for Reconsideration, ECF No. 249, p. 16.) That argument ignores the fact that the
Court said in its decision—in the sentence directly after the one that Clark objects to—that
“(‘Sierra’) then imported the baler into the United States, reassembled it to some degree,
mounted it on a trailer, and sold the entire machine….” (ECF No. 245, p. 1–2.)
Clark also says that the Court erred when it stated that “[o]nce Clark checked the tanks,
he always used the same method to get down: he would face away from the trailer and jump—
even though the Operator’s Manual says ‘Do NOT jump off the machine’ . . . So one day, after
re-filling the hydraulic fluid using his method, Clark fell.” (Pl.’s Mot. for Reconsideration, ECF
No. 249, p. 16–17.) Clark thinks that “the Court correctly states elsewhere in its [o]rder” that
“Mr. Clark testified that he fell when stepping down from the machine, not when jumping off of
it”—but that the Court failed to do the same in this one instance. The Court is constrained, once
again, to address Clark’s arguments. In its order, the Court specifically cited to Clark’s
deposition testimony, where he stated that he dismounted from the machine every time in the
same manner: facing away from the trailer and jumping. (Richard Clark Dep. at 95:3–10,
116:18–117:4, ECF No. 145, Ex. G.) And then the Court identified the part of the deposition

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where Clark contradicted himself: when he said that he did not know why he fell in this one
instance. (Id. at 67:15–24.) Every factual discrepancy is there.
To conclude, Clark complains that the Court cited to the portion of the Operator’s
Manual that says “Do NOT jump off the machine”—even though the Operator’s Manual,
attached as an exhibit to Sierra’s motion for summary judgment—says “Do NOT jump off the
machine.” (Sierra’s Mot. Sum. J., ECF No. 145, Ex. F, p. 6.) And whether Clark received a copy
of that manual is completely irrelevant: Clark did not plead a failure to warn theory in this case,
as the Court already explained at length in its prior decision. There is nothing to reconsider here.
CONCLUSION
For the foregoing reasons, the Court DENIES Clark’s motion for reconsideration (ECF
No. 249) and motion for a hearing on the same (ECF No. 250), as well as Sierra’s motion to
strike Clark’s reply brief (ECF No. 254).
IT IS SO ORDERED.
DATED: AUGUST 24, 2018
s/ J. Phil Gilbert
J. PHIL GILBERT
DISTRICT JUDGE

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