Costanza v. Menards Inc et al
OPINION AND ORDER DENYING 79 Motion to Reconsider Denial of Defendant's Motion for Summary Judgment. Signed by Chief Judge Theresa L Springmann on 2/27/2017. (jss)
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF INDIANA
FORT WAYNE DIVISION
VULCAN LADDER COMPANY,
CAUSE NO.: 1:13-CV-260-TLS
OPINION AND ORDER
This matter is before the Court on the Defendant’s Motion for Reconsideration [ECF
No. 79] and accompanying Brief in Support [ECF No. 80], filed on January 3, 2017, requesting
that the Court reconsider the Opinion and Order [ECF No. 77] issued December 5, 2016,
granting in part and denying in part the Defendant’s Motion to Exclude Opinion Testimony of
Charles Proctor [ECF No. 52] (the “Motion to Exclude”) and denying the Defendant’s Motion
for Summary Judgment [ECF No. 47]. The Defendant maintains on reconsideration that the
Court should enter summary judgment in its favor because the Court admitted the testimony of
Plaintiff’s expert over the Defendant’s objection, and that there are no genuine issues of material
fact. The Plaintiff filed a Response [ECF No. 81] on January 10, 2017, and the Defendant filed a
Reply [ECF No. 82] on January 17, 2017. This matter is now fully briefed and ripe for ruling.
STANDARD OF REVIEW
A district court is “entitled to reconsider its initial denial of summary judgment, because
the denial of summary judgment [i]s simply an interlocutory order, which the district court ha[s]
broad authority to reconsider.” Peirick v. Ind. Univ.-Purdue Univ. Athletics Dep’t, 510 F.3d 681,
694 n.5 (7th Cir. 2007); see also Fed. R. Civ. P. 54(b) (stating that orders adjudicating fewer than
all claims do not end an action and “may be revised at any time before the entry of a judgment
adjudicating all the claims and all the parties’ rights and liabilities”).
The Seventh Circuit has discussed the role of a motion to reconsider as follows:
A motion for reconsideration performs a valuable function where the Court has
patently misunderstood a party, or has made a decision outside the adversarial
issues presented to the Court by the parties, or has made an error not of reasoning
but of apprehension. A further basis for a motion to reconsider would be a
controlling or significant change in the law or facts since the submission of the issue
to the Court.
Bank of Waunakee v. Rochester Cheese Sales, Inc., 906 F.2d 1185, 1191 (7th Cir. 1990)
(citations omitted); see also LB Credit Corp. v. Resolution Tr. Corp., 49 F.3d 1263, 1267 (7th
Cir. 1995) (“[A] Rule 59(e) motion must clearly establish either a manifest error of law or fact or
must present newly discovered evidence.”) (internal quotation marks omitted). However, a Rule
59(e) motion may not be used simply to re-litigate issues that have already been decided.
Sigsworth v. City of Aurora, Ill., 487 F.3d 506, 512 (7th Cir. 2007) (quotation marks omitted).
Objections to Proctor’s Expert Testimony Regarding the Cause of the Accident
The Defendant challenges the Court’s ruling that Charles Proctor’s expert opinion
testimony is admissible in so far as it pertains to the cause of the accident. 1 The Defendant
contends that Proctor’s testimony should be excluded because its expert, Jon Ver Halen, has
demonstrated that it is not possible to step on the ladder when placed against the wall without the
ladder locking absent the user intentionally unlocking the hinges. The Defendant asserts that
The Defendant in its briefing reserved its right to object at trial to the admissibility of Proctor’s
opinions regarding the instructions and visual warnings. The Court has also already held that Proctor’s
proffered alternative design of color-coded locking blocks was not sufficiently supported and therefore
inadmissible in its Opinion and Order. (Op. & Order 14–15.)
“Proctor’s opinions in this case are exactly the kind of expert testimony that Rule 72 is designed
to exclude” because “it is unsupported conjecture that fails to account for the undisputed
evidence in this case.” (Mot. to Recons. 2, ECF No. 80.)
The Court first notes that the Defendant has not quite particularized in its briefing for the
Motion for Summary Judgment or in its briefing for this Motion where under the Daubert v.
Merrell Dow Pharmaceuticals, 509 U.S. 579 (1993), framework the Court should find Proctor’s
expert opinion inadmissible. Baugh ex rel. Baugh v. Cuprum S.A. de C.V., 845 F.3d 838, 844
(7th Cir. 2017) (“[Defendant] repeatedly used . . . Rule 702/Daubert buzzwords and cited
multiple cases applying the related framework. . . . [s]o the district judge should have treated [the
defendant’s objection] as invoking [the] Rule 702 and Daubert [framework].”). District courts
apply the Daubert framework using a three-part analysis. Meyers v. Ill. Cent. R.R. Co., 629 F.3d
639, 644 (7th Cir. 2010). First, the Court must determine whether the proposed witness is
qualified as an expert by knowledge, skill, experience, training, or education. If so, the court
must then decide whether the reasoning or methodology underling the expert’s testimony is
reliable. If these two requirements are met, the court must assess whether the expert’s proposed
testimony will assist the trier of fact in understanding the evidence or to determine a factual
issue. See id. (citing Ervin v. Johnson & Johnson, Inc., 492 F.3d 901, 904 (7th Cir. 2007)).
During the Court’s previous inquiry, the Court observed that the Defendant did not contest the
admissibility of Proctor’s expert opinion on parts one or three of the Daubert framework, but
surmised that the Defendant likely was objecting on the second part. 2
Proctor holds a Ph.D. in mechanical engineering from Purdue University and is a licensed P.E.
who operates an engineering consulting firm. The Court found in its Opinion and Order that the Plaintiff
has established that Proctor is a qualified expert in this case given his education, qualification as a
professional engineer, and his professional background. (Op. & Order 8, ECF No. 77.) The Court also
found that Proctor’s testimony will assist the trier of fact in determining the factual issues at hand. (Id. at
On the Motion for Reconsideration, the Defendant attacks the admissibility of Proctor’s
expert opinion by arguing he incorrectly relied on the testimony of the Plaintiff’s two sons and
the testimony of the Plaintiff who, because of the fall, has at times a limited memory of every
moment of the accident. (Costanza Dep. 32 (“I remember leaving the roof area and I ended up on
the ground, but I don’t remember anything after that.”).) The Defendant also argues that this,
combined with the fact that he did not test whether the ladder could remain unlocked after
pushing on the hinges or stepping on the ladder, makes his testimony unsupported and
But as the Court has already said in its prior Opinion and Order, Daubert and Rule 702
precisely allow for this type of expert testimony to be admitted. See Baugh, 845 F.3d at 847. In
preparing his opinion testimony, Proctor reviewed the Plaintiff’s Deposition [ECF No. 49-2] and
those of his three sons. He examined the ladder instructions, and photographs taken by one of the
Plaintiff’s sons of the ladder as it was allegedly positioned after the fall. In reaching his
engineering opinions, Proctor states that he followed ASTM standards. The Seventh Circuit’s
recent opinion in Baugh, another ladder slip and fall case, reinforces this very point that it was
more than appropriate for Proctor to rely on the materials and testimony he used to support his
opinion. In Baugh, “[i]n order to reach his [admissible] opinions, [a ladder expert] reviewed,
among other things, photographs of the scene of the accident with overlaid measurements,
transcripts of deposition testimony supplied by witnesses to the aftermath of the accident, the
actual ladder that [the plaintiff] had used, and an exemplar ladder.” Id.
That the Defendant offers a competing expert with a contrary conclusion makes no
difference. Advisory Committee Notes to Rule 702 specifically provide:
When facts are in dispute, experts sometimes reach different
conclusions based on competing versions of the facts. The emphasis
in the [Rule] on ‘sufficient facts or data’ is not intended to authorize
a trial court to exclude an expert’s testimony on the ground that the
court believes one version of the facts and not the other.
Fed. R. Evid. 702, advisory committee’s note (2000 amends.). It was entirely appropriate for
Proctor to rely on the Plaintiff’s version of events, along with accompanying testimony and
materials in forming his expert testimony. “The soundness of the factual underpinnings of the
expert’s analysis and the correctness of the expert’s conclusions based on that analysis are
factual matters to be determined by the trier of fact, or, where appropriate, on summary
judgment.” Smith v. Ford Motor Co., 215 F.3d 713, 718 (7th Cir. 2000).
By asking the Court to rule on the admissibility of Proctor’s expert opinion testimony by
comparing it to Ver Halen’s, the Defendant asks the Court to, jump the gun, and make a
credibility determination at the Daubert/Rule 702 admissibility stage, before making a reliability
determination. “Reliability . . . is primarily a question of the validity of the methodology
employed by an expert, not the quality of the data used in applying the methodology or the
conclusions produced.” Manpower, Inc. v. Ins. Co. of Pa., 732 F.3d 796, 806 (7th Cir. 2013).
There is no basis to exclude Proctor’s testimony simply because Ver Halen reaches a competing
conclusion. Accordingly, based on the record, the Court denies the Defendant’s Motion to
Reconsider with respect to the admissibility of Proctor’s testimony regarding the causation of the
The Defendant asserts that the Plaintiff has failed to make a showing of the causation of
the accident that would defeat summary judgment because Ver Halen’s testimony, report, and
accompanying video prove beyond measure that the Plaintiff’s theory of the accident is simply
not possible. 3 The Court addressed this issue in its Opinion and Order, concluding that on review
of the record “a reasonable jury could determine that the Plaintiff’s accident was the result of the
hinge locks not engaging after the Plaintiff unfolded, positioned, and climbed the ladder.” (Op. &
Order 18, ECF No 77.) The Court will expound on its reasoning in this Motion for
Under the Indiana Products Liability Act (“IPLA”), “the plaintiff must show that (1) the
product is defective and unreasonably dangerous, (2) the defective condition existed at the time
the product left the defendant’s control, and (3) the defective condition is the proximate cause of
the plaintiff’s injuries.” Nat. Gas Odorizing, Inc. v. Downs, 685 N.E.2d 155, 160 (Ind. Ct. App.
1997). “Proximate cause is an essential element of, and is determined in the same manner in,
both negligence and product liability actions.” Minisan v. Danek Medical Inc., 79 F. Supp. 2d
970, 975 (N.D. Ind. 1999) (first citing Wolfe v. Stork RMS–Protecon, Inc., 683 N.E.2d 264 (Ind.
Ct. App. 1997); then citing Lucas v. Dorsey Corp., 609 N.E. 2d 1191 (Ind. Ct. App. 1993)).
“Whether a plaintiff alleges a manufacturing defect, design defect, or failure to warn, a plaintiff
must prove proximate causation, i.e., that the defect or missing warning proximately caused his
injury.” Runge v. Stanley Fastening System, L.P., No. 4:09-CV-130, 2011 WL 6755161, *14
(S.D. Ind. Dec. 23, 2011) (brackets and quotations removed); Kovach v. Caligor Midwest, 913
N.E. 2d 193, 197–98 (Ind. 2009).
The Defendant also asserts that the Court, in making its decision, applied “great emphasis” to
the Motion Hearing held July 8, 2016, in which the parties were able to visually demonstrate to the Court
with an exemplar ladder how it works, and in particular the locking block mechanism. On this Motion for
Reconsideration, the Court clarifies that its determination in its Opinion and Order was on review of the
entire record. (Opinion & Or. 18, ECF No. 77 (“On review of the record, the Court determines that a
reasonable jury could determine that the Plaintiff’s accident was the result of the hinge locks not engaging
. . . .”) (emphasis added).)
“Proximate cause is established if the injury to the plaintiff is a natural and probable
consequence of the defendant’s act or omission ‘which was, or should have been, reasonably
foreseen or anticipated in light of attendant circumstances.’” Minisan, 79 F. Supp. 2d at 975
(citing Montgomery Ward & Co. v. Gregg, 554 N.E.2d 1145, 1156 (Ind. Ct. App. 1990)).
Specifically to causation, Proctor opined at several points including in his report and
accompanying testimony. At the deposition Proctor was asked:
At the time of [the Plaintiff]’s fall, he had [the ladder] fully
unfolded to the 180-degree position with the exception that
it’s your opinion that the locking mechanism had not locked;
(Proctor Dep. 30, ECF No. 49-2). And later,
Now, in your report, you did not really discuss how it was
that [the Plaintiff] came to fall; is that true? You don’t just
attempt to give a scenario or give an accident reconstruction
in terms of how he fell; is that true?
It was my understanding, again, that it was when he was
exiting the ladder getting onto the roof. A continuation of
that would be the dynamics of it, which I may not have put
into the report. The dynamics would be that he would be
applying foot force on the ladder as he’s exiting, which then
initiated the fall due to the fact that it, to my belief, was not
Specifically where did he, in your opinion, apply foot force
to cause this incident?
It would have been on the step where he was when he was
exiting, and I haven’t determined specifically which step that
(Id. at 32). And in his Report [ECF No. 52-3], Proctor confirmed his belief in the causation of the
accident when he stated:
1. The instructions provided with the subject ladder misled [the
Plaintiff] into believing that the subject ladder was properly locked
prior to his attempt to climb and exit the ladder.
2. The instructions provided with the subject ladder lacked clarity
regarding locking block correct engagement for ladder use.
(Proctor Report 12, ECF No. 52-3). Proctor concedes that he did not perform tests to verify
whether the ladder could be positioned as the Plaintiff did without the ladder locking (Id. at 35),
whether weight could be applied to the ladder without it locking (Id.), whether the ladder could
be climbed when a user positions it backwards (Id. at 36), whether the ladder would lock when a
user pushed the frame as described by the Plaintiff (Id. at 37), and whether the labeling
requirements complied with the applicable ANSI A14.2 standard (Id. at 48). But as the Court
previously stated, this does not disqualify his testimony. “The mere fact that [an expert] could
not testify about certain facts relating to the accident with absolute certainty does not render his
opinions unreliable or irrelevant.” See Baugh, 845 F.3d at 847. (causation at issue in jury verdict
of ladder slip and fall case). “The jury must still be allowed to play its essential role as the arbiter
of the weight and credibility of expert testimony.” Stollings v. Ryobi Techs., Inc., 725 F.3d 753,
765 (7th Cir. 2013). Another way of putting it: “[E]xpert testimony does not need to be
conclusive to be relevant.” Id. The Court has reviewed Ver Halen’s report, testimony, and
accompanying video and finds that there is still a triable issue of material fact. Proctor’s expert
opinion provides a sufficient basis for the Plaintiff’s alleged causation of the accident. On review
of the record, the Court finds that Ver Halen’s expert opinion does not conclusively rule out
Proctor’s as the Defendant contends. “Indeed, it is often the case that experts reach conflicting
conclusions based on applying different but nevertheless reliable methodologies to a set of
partially known facts. The determination of which opinion (if any) identifies the most probable
cause of an injury is typically a question of weight, not reliability.” Baugh, 845 F.3d at 847.
Lastly, the Defendant points to the Opinion and Order to argue that the Court did not
consider the Plaintiff’s assertion that he pushed the ladder frame before climbing. The Court
takes the opportunity to clarify this point. The Court finds that a reasonable jury could determine
that (1) the Plaintiff was misled by the ladder’s instructions and warnings and (2) the locking
blocks did not engage when the Plaintiff unfolded, positioned, pushed, climbed, tossed his tool
belt from, and ultimately fell off, the ladder. Furthermore, Ver Halen’s video demonstration does
not conclusively rule out that Plaintiff’s push of the ladder frame would have locked it into place.
As the Court stated in its Opinion and Order, the evidence in this case is not so one-sided or
conclusive to resolve this issue at the summary judgment stage, where the Court must construe
all facts in a light most favorable to the nonmoving party and reasonable inferences. Bellaver v.
Quanex Corp., 200 F.3d 485, 491–92 (7th Cir. 2000).
For the forgoing reasons the Defendant’s Motion to Reconsider Denial of Defendant’s
Motion for Summary Judgment [ECF No. 79] is DENIED.
SO ORDERED on February 27, 2017
s/ Theresa L. Springmann
CHIEF JUDGE THERESA L. SPRINGMANN
UNITED STATES DISTRICT COURT
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