Stuhlmacher et al v. Home Depot USA Inc The et al

Filing 51

OPINION AND ORDER denying 41 Motion in Limine; granting in part and denying in part 43 Motion for Summary Judgment. Signed by Magistrate Judge Andrew P Rodovich on 6/21/13. (mc)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF INDIANA
HAMMOND DIVISION
KURT STUHLMACHER and
KELLY STUHLMACHER,

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) Cause No.: 2:10-CV-00467-JTM-APR
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Plaintiffs,
v.
THE HOME DEPOT U.S.A., INC.
and TRICAM INDUSTRIES, INC.
Defendants.

OPINION AND ORDER
This matter is before the court on the Motion in Limine to Bar the Testimony of
Plaintiffs’ Expert Thomas Conry [DE 41] and the Motion for Summary Judgment [DE 43] filed
by the defendants, Home Depot U.S.A., Inc. and Tricam Industries, Inc., on December 21, 2012.
For the following reasons, the Motion in Limine to Bar the Testimony of Plaintiffs’ Expert
Thomas Conry [DE 41] is DENIED, and the Motion for Summary Judgment [DE 43] is
GRANTED IN PART and DENIED IN PART.

Background
The plaintiff, Kurt Stuhlacher’s, father purchased a Model 01-41000-00-foot fiberglass
Type IA stepladder from the defendant, Home Depot U.S.A., Inc., on October 31, 2008. The
ladder was manufactured by the defendant, Tricam Industries, Inc., in July 2007. Several ladders
from the subject ladder’s production batch were tested and found to conform with the
authoritative safety guidelines, the ANSI A14.5 and OSHA. The subject ladder also was labeled
as conforming to the ANSI requirements.
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On either October 31, 2008 or November 1, 2008, Kurt was using the ladder to construct
the roof of a cabin porch. Kurt testified that he set up the ladder on flat level clay “so hard that if
you struck it with a hammer, it would spark.” Before climbing up the ladder, Kurt opened it and
depressed the spreaders. He then stood in front of the ladder, grabbed a hold of the rails, shook it
around, and lifted it up to make sure everything was level and square. He next leaned the ladder
back and jiggled it around. Kurt stated that everything was perpendicular and that nothing was
out of line before he climbed the ladder. Kurt went to the seventh step of the ladder, stopped,
and began drilling a screw through a “purlin” into the rafter to his right. The ladder did not
wiggle or wobble when he climbed the ladder, and none of the ladder’s four feet sunk into the
hard clay when he climbed up. While drilling, the ladder fell to Kurt’s left. Kurt grasped the
rafter to his left and tried to hold on to it. He twisted so that the front of the cabin was to his
right. He could not hold on and fell straight down on the ladder. Kurt struck his groin on the
right front rail near the first step. He suffered bruises on the left side of his stomach, left arm,
left leg, left shoulder, and left side of his face. On November 2, 2008, Kurt sought medical
treatment for his injuries.
After the fall, Kurt inspected the area where he set up the ladder and did not see any
indentations in the ground. Kurt’s wife, Kelly Stuhlmacher, was standing below Kurt within a
foot or two of the ladder when the fall occurred. Kelly did not know what step Kurt was on
before the fall. She agreed that the ladder fell to Kurt’s left and that Kurt fell on the ladder.
When Kurt began to fall she did not hear anything nor did she see the left spreader bar separate
from the rail.
Post fall, the right rear spreader bracket rivets were pulled through the interior of the web

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of the right rear leg. The right spreader was buckled inward, and the right front spreader bracket
was bent inward. The ladder’s rear section was “racked/twisted/offset” to the right, and the
diagonal step braces were bent from the front to rear on the ladder’s front left side.
Kurt and Kelly filed their complaint against the defendants on October 22, 2010. The
plaintiffs raise several counts, including: (1) Negligence-Strict Liability, (2) Negligence- Failure
to Warn, (3) Negligence, (4) Breach of Warranty of Merchantability, (5) Breach of Implied
Warranty of Fitness for a Particular Purpose, and (6) Loss of Consortium.
The plaintiffs hired Dr. Thomas Conry as an expert witness. Conry holds a Ph.D. in
mechanical engineering and a Master of Science degree from the University of WisconsinMadison. His study has focused on mechanical design and contact mechanics, which is the
scientific study of forces, motions, displacements, and stresses placed on components. Conry is
a licensed professional engineer in Illinois, Wisconsin, Arizona, and Texas. He was a professor
of engineering from 1971 until 2006, and he taught mechanical and structural analysis,
engineering design analysis, mechanical and structural component design, materials testing
laboratory, and senior project design.
Conry studied the ladder, the industry standard for ladder safety, ANSI A14.5, and the
product design, among other things prior to preparing his expert report. Conry observed that the
rivets were not the same size as the ones called for in the product design and did not have a lip
on the underside. Conry also observed that the right rear rivet heads were indented in the right
rail. He concluded that this must have occurred during the manufacture because the marks on
the inside of the rail could not have been made by Kurt’s impact with the ladder. If the
indentation marks had been made from the bracket separating with the fiberglass rail, the only

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indentation mark would correspond to the straight edge of the steel bracket, not the 10 mm
radius arcs. This is because the edge of the bracket would have acted as a fulcrum, and the rest
of the bracket would have been separated from the rail.
At his deposition, Conry conceded that he was not an expert in ladder manufacturing. As
part of his analysis, he did not calculate the force required to bend the right front spreader
bracket. He also admitted that the right spreader’s buckle was consistent with impact. Conry
estimated that the maximum force that could have caused the damage to the right spreader bar
was 91 pounds. However, he did not state that this was in fact the amount of force applied from
Kurt’s ascent up the ladder. Conry also testified that it was possible that pressure was exerted on
the ladder by Kurt digging the legs of the ladder into the ground. Conry further admitted that he
did not determine the depth to which the rivets were indented into the exterior rail where the
rivets were set and did not determine the degree to which he claims the right rear rail was
weakened due to rivet indentation.
The defendants now move to exclude Conry’s testimony and further argue that absent
Conry’s testimony the plaintiffs cannot prove that the ladder was defective and unreasonably
dangerous or that a defect with the ladder was the proximate cause of Kurt’s injury.

Discussion
The admissibility of expert evidence is governed by Federal Rule of Evidence 702,
Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579, 113 S. Ct. 2786, 125 L.Ed.2d 469 (1993),
and its progeny. Winters v. FruCon Inc., 498 F.3d 734, 741 (7th Cir. 2007). Rule 702 provides:
If scientific, technical, or other specialized knowledge will assist the trier of fact to
understand the evidence or to determine a fact in issue, a witness qualified as an
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expert by knowledge, skill, experience, training, or education, may testify thereto in
the form of an opinion or otherwise, if (1) the testimony is based upon sufficient
facts or data, (2) the testimony is the product of reliable principles and methods, and
(3) the witness has applied the principles and methods reliably to the facts of the
case.
Under Daubert, the court exercises a “gatekeeping” function to ensure that expert testimony is
both reliable and relevant pursuant to Rule 702. Lees v. Carthage College, 714 F.3d 516, 521
(7th Cir. 2013); Winters, 498 F.3d at 741; Kumho Tire Co., Ltd. v. Carmichael, 526 U.W. 137,
141, 119 S. Ct. 1167, 143 L.Ed.2d 238 (1999). The examination applies “to all kinds of expert
testimony.” U.S. v. Conn, 297 F.3d 548, 555 (7th Cir. 2002)(noting that Rule 702 makes no
distinction between “scientific” knowledge and other forms of specialized knowledge)(citing
Kumho Tire, 526 U.S. at 149). The main purpose of the court’s gatekeeping requirement “is to
make certain that an expert, whether basing testimony upon professional studies or personal
experience, employs in the courtroom the same level of intellectual rigor that characterizes the
practice of an expert in the relevant field.” Kumho Tire, 526 U.S. at 152.
In light of Daubert and Kumho Tire, the Seventh Circuit has endorsed a two-step
analysis for district courts to use in evaluating expert testimony under Rule 702: first, the court
must determine whether the expert’s testimony is “reliable;” and second, the court must
determine whether the expert’s testimony is “relevant.” Lees, 714 F.3d at 521; Hardiman v.
Davita Inc., 2007 WL 1395568 (N.D. Ind. May 10, 2007). Like all questions of admissibility,
these regarding a witness’s testimony are matters of law to be determined by the judge.
Hardiman, 2007 WL 1395568 at *2 (quoting and citing Porter v. Whitehall Labs., Inc., 791 F.
Supp. 1335, 1342 (S.D. Ind. 1992), aff’d, 9 F.3d 607 (7th Cir. 1993). “The burden of showing an
expert’s testimony to be relevant and reliable is with the proponent of the evidence.” Bickel v.

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Pfizer, Inc., 431 F. Supp. 2d 918, 921 (N.D. Ind. 2006).
To satisfy the reliability requirement, the expert must be qualified in the relevant field,
and his opinion must be based on sound methodology. Smith v. Ford Motor Co., 215 F.3d 713,
718 (7th Cir. 2000); see also Hardiman, 2007 WL 1395568 at n.1 (discussing courts’ ability to
combine the qualifications inquiry into the reliability prong). In determining whether an expert
is qualified to render an opinion, the court should consider his “full range of practical experience
as well as academic or technical training . . . .” U.S. v. Parra, 402 F.3d 752, 758 (7th Cir.
2005)(quoting Smith, 215 F.3d at 718). Still, “[a] court’s reliability analysis does not end with
its conclusion that an expert is qualified to testify about a given matter . . . . [T]he court’s
gatekeeping function [also] focuses on an examination of the expert’s methodology.” Smith,
215 F.3d at 718. Hence, an expert’s work is admissible “only to the extent it is reasoned, uses
the methods of the discipline, and is founded on data. Talking off the cuff – deploying neither
data nor analysis – is not an acceptable methodology.” Lang v. Kohl’s Food Stores, Inc., 217
F.3d 919, 924 (7th Cir. 2000).
Daubert outlined the following factors in assessing an expert’s methodology:
(1) whether a theory or technique . . . can be (and has been) tested; (2) whether the
theory or technique has been subjected to peer review and publication; (3) the known
or potential rate of error; (4) the existence and maintenance of standards controlling
the technique’s operation; and (5) whether the technique or method has met with
general acceptance.
Conn, 297 F.3d at 555 (quoting Daubert, 509 U.S. at 593-94). No matter what type of
specialized information is proffered, “the Daubert factors set forth above ought not be
considered a definitive check list suitable for the evaluation of all kinds of evidentiary
submissions involving specialized knowledge.” Conn, 297 F.3d at 555-56. The list should be

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flexible “to account for the various types of potentially appropriate expert testimony” rather than
definitive or exhaustive. Depulty v. Lehman Bros., Inc., 345 F.3d 494, 505 (7th Cir. 2003). See
also Lees, 714 F.3d at 521 (“[B]ecause there are ‘many different kinds of experts, and many
different kinds of expertise,’ the reliability analysis should be geared toward the precise sort of
testimony at issue and not any fixed evaluative factors.”)(citing Kumho Tire, 526 U.S. at 150).
The court may tailor its approach using the Daubert factors as a starting point in an effort to
evaluate the particular evidence before it. Conn, 297 F.3d at 556.
The expert testimony must “fit the issue to which the expert is testifying.” Chapman v.
Maytag Corp., 297 F.3d 682, 687 (7th Cir. 2002)(internal citations and quotes omitted). Further,
“[i]t is critical under Rule 702 that there be a link between the facts or data the expert has
worked with and the conclusion the expert’s testimony is intended to support.” U.S. v. Mamah,
332 F.3d 475, 478 (7th Cir. 2003)(citing Gen. Elec. v. Joiner, 522 U.S. 136, 146, 118 S. Ct. 512,
139 L.Ed.2d 508 (1997)). As the Supreme Court wrote: “[N]othing in either Daubert or the
Federal Rules of Evidence requires a district court to admit opinion evidence that is connected to
existing data only by the ipse dixit of the expert.” Gen. Elec., 522 U.S. at 146. Therefore, an
expert “who invokes ‘my expertise’ rather than analytic strategies widely used by specialists is
not an expert as Rule 702 defines that term.” Zenith Elec. Corp. v. WH-T Broad. Corp., 395
F.3d 416, 419 (7th Cir. 2005); see also Mamah, 332 F.3d at 478 (“The court is not obligated to
admit testimony just because it is given by an expert.”). Rather, the Seventh Circuit has
reiterated: “An expert who supplies nothing but a bottom line supplies nothing of value to the
judicial process.” Zenith Elec. Corp., 395 F.3d at 419 (collecting cases of reiteration).
Once evidence is deemed reliable, it still must be excluded if it is not relevant, which

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under Rule 702 means that it is not likely “to assist the trier of fact to understand the evidence or
determine a fact in issue . . . .” U.S. v. Hall, 93 F.3d 1337, 1342 (7th Cir. 1996). The expert
testimony must relate to an issue in the case, or it is not relevant. Daubert, 509 U.S. at 591. To
“assist” a jury, the Seventh Circuit has explained that the expert testimony will not aid a jury if it
“addresses an issue of which the jury is already generally aware, and it will not contribute to
their understanding of the particular dispute.” Hall, 93 F.3d at 1104. Alternatively, if, because
of the expert’s knowledge of relevant facts, the expert’s particular use of those facts “will help
the trier determine a fact, then the opinion is admissible under Rule 702.” Porter, 791 F. Supp.
at 1343.
The defendants dispute whether Conry is qualified to give his expert testimony and
whether his testimony is reliable. The defendants argue that Conry in unqualified because he has
no experience in the design or manufacture of fiberglass ladders. The defendants point to
Conry’s concession that he lacks this experience and argue that although Conry considers
himself an expert in materials, failure mechanisms, and root cause failures, he does not have any
recorded experience with fiberglass rails, the material the ladder at issue was produced from.
The defendants maintain that Conry cannot conclude that the ladder’s rail strength was reduced
without having knowledge of fiberglass materials.
The plaintiffs counter that Conry has extensive experience with the forces, motions,
displacements, and stresses placed on components and systems of components. Conry has both a
Ph.D. in mechanical engineering and a Master of Science degree from the University of
Wisconsin-Madison. His study has focused on mechanical design and contact mechanics, which
is the scientific study of forces, motions, displacements, and stresses placed on components.

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Conry is a licensed professional engineer in Illinois, Wisconsin, Arizona, and Texas. He was a
professor of engineering from 1971 until 2006, and he taught mechanical and structural analysis,
engineering design analysis, mechanical and structural component design, materials testing
laboratory, and senior project design. As part of his teaching, he focused on failure mechanisms
and modes of failure to show students how to avoid such failures. He also had training in the
area of fasteners and joints and deformation of materials. In his forensic activity, he has
followed a reverse process. When a failed component or system was presented, he followed a
logical engineering-based path to determine the root cause of the failure. Conry states that this
failure analysis is a common engineering method.

To prepare his opinion, Conry inspected the

fiberglass rail, measured the rivets, and studied the design drawings. Conry conducted a failure
analysis and constructed his theory on why the ladder failed based on all the physical evidence of
the ladder and subject conditions.
Although Conry does not have experience in fiberglass ladder manufacturing, he has
extensive experience in evaluating the reasons products do not perform as expected. The
defendants argue that Conry’s lack of experience dealing with fiberglass is reason enough to
discount his expertise, however, the court does not agree. Certainly this is one factor that may
affect the weight his testimony is given, but it does not nullify his experience evaluating the
failure of machines. The defendants’ vision of applicable experience is too narrowly construed.
Conry is an expert in dealing with multiple types of materials and evaluating the faults with the
products. Specifically, Conry has a background of evaluating faults with fasteners, joints, and the
deformation of materials, and here the cause of the ladder’s failure may have been with the
bracket. This falls squarely into Conry’s area of expertise. Conry has a history of following a

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reverse process to determine the root cause of a product’s failure and may shed light on why this
particular “machine” did not perform as expected. The defendants only have attacked Conry’s
experience dealing with fiberglass and have not criticized Conry’s experience applying this
practice, determining why machines fail, or evaluating the failure of fasteners.
The defendants also criticize the methodology Conry used to reach his conclusion. The
defendants argue that Conry’s theory that the ladder fell because of the lack of a lip on the rivet’s
underside and a lack of rivet head dimension is not supported by testing, investigation, peer
review, or authoritative literature. The defendants further argue that there is no evidence to
support Conry’s theory that the rivets were indented when they were set, weakening the
fiberglass rail. Conry also conceded that the ANSI A14.5 was the authoritative standard for
assessing ladder safety and did not claim the ladder would have failed to meet these
requirements. Additionally, the defendants argue that Conry’s theory of causation was based on
speculation and not supported by the evidence.
Turning first to the defendants’ critique of Conry’s failure to test the ladder, not every
expert opinion must be subject to testing. Schmude v. Tricam Industries, Inc., 550 F.Supp.2d
846, 852 (E.D. Wis. 2008). The Supreme Court intended for the Daubert factors to have
considerable leeway. Schmude, 550 F.Supp. 2d at 852 (citing Kumho Tire Co., Ltd. v.
Carmichael, 526 U.S. 137, 152, 119 S.Ct. 1167, 1176, 143 L.Ed.2d 238 (1999)). In Schmude,
the expert explained how a properly peened rivet was intended to fasten the leg of a ladder to the
cap and described how in his opinion the misalignment of the ladder assembly during
manufacturing caused the failure of the product. Schmude, 550 F.Supp.2d at 852. The court
explained that the defect was not the type that lended itself to empirical testing. Schmude, 550

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F.Supp.2d at 852. The court made special note that the strength of the metal used to manufacture
the rivet was not in question and explained that the expert’s theory was based on the
misalignment of the rivet. Schmude, 550 F.Supp.2d at 852. The court went on to explain that no
one knew precisely how the rivet became dislodged but that the expert offered one theory on
how it may have occurred. Schmude, 550 F.Supp.2d at 853 (“The theory that a stepladder may
collapse if the rivet fastening one of the legs to the cap fails is not ‘rocket science.’”).
Conry’s theory similarly is based on

the failure of the connection of the spreader

bar bracket to the rail, and he explained that physical evidence showed that a pre-existing
condition led to Kurt’s fall. It is Conry’s position that the substituted rivets were over-tightened
and weakened the fiberglass rail during the manufacturing process, which fractured the rear rail
and led to the disconnection of the spreader bar. The depressions in the rail showed that the
spreader bar was over-tightened, and Conry concluded that the marks on the inside of the rail
could not have been made by Kurt’s impact with the ladder. If the indentation marks had been
made from the bracket separating with the fiberglass rail, the only indentation mark would
correspond to the straight edge of the steel bracket, not the 10 mm radius arcs, because the edge
of the bracket would have acted as a fulcrum and the rest of the bracket would have been
separated from the rail. Conry has maintained that the defendants’ theory that the damage
occurred as a result of the fall would have created a completely different set of bends in the
spreader bar brackets.
Conry’s theory is not the type that lends itself to the testing the defendants argue is
pertinent to support his opinion. Similar to the expert in Schmude, Conry determined that the
rivets were not the same ones called for in the product’s design. Conry then examined the ladder

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and concluded how the marks on the ladder most likely would have occurred. The marks
showed that the incorrect rivets were over-tightened, causing weakness in the rail and the
ultimate separation of the rail from the spreader. It is unclear how testing would substantiate his
opinion which is based on the markings of the subject ladder. Although the defendants’ expert
based his opinion on the forces applied to the ladder, this is not telling of the method the
plaintiffs’ expert must employ. Rather, Conry relied on his specialized knowledge and applied
the accepted engineering principles of Failure Mode Analysis to consider all the markings on the
ladder and to determine the only manner in which all the markings could have come into being.
The court equates Conry’s theory to that of an accident reconstruction expert. Conry
studied the ladder and worked backwards to reconstruct the cause of the accident. “When
evaluating the reliability of accident reconstruction experts, courts have considered such factors
as whether the expert applied well-established engineering techniques to the particular materials
at issue, whether the accident reconstruction methodology is based on the expert's practical
experience in the area, whether novel methodology has been subject to publication, and the
general acceptance of the techniques in the relevant engineering and accident analysis fields.”
See Smith v. Ford Motor Co., 215 F.3d 713, 720-21 (7th Cir. 2000). In Smith, the Seventh
Circuit explained that the reconstruction expert’s failure to publish any articles related to his
opinion in a peer reviewed magazine was not dispositive of the reliability of his opinion because
if his reconstruction methodology was based on his extensive practical experience, his failure to
publish did not cast doubt on the reliability of his analytical technique. Smith, 215 F.3d at 720.
This suggests that extensive practical experience alone may satisfy the Daubert standards,
although the court is cautious to rely on “expertise” without additional indicators of reliability.

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See Zenith, 395 F.3d at 419.
Here, such additional indicators are present. In addition to Conry’s extensive practical
experience considering why machines fail, he also has published a myriad of articles, and as
many of the titles suggest, his publications have dealt with the failure of various machines. If
Conry’s system for analyzing broken machines is unreliable, the defendants may rely on
criticisms of the methods he applied to analyze failures in his articles. In addition to his
extensive expertise evaluating the failure of machines and the list of related articles, Conry also
employed well-established engineering principles. Conry testified that it has been a core part of
engineering education to study the reasons machines fail and to conduct failure analyses. For
these reasons, Conry’s failure to conduct tests is not dispositive of the reliability of his opinions
that were based on his expertise and generally accepted engineering principles.
The defendants further argue that Conry stated that the pressure required to cause the
marks from Kurt’s fall would have been 91 pounds, a measure that the defendants’ own expert
could not reproduce from proper use of the ladder. However, Conry did not state that the
pressure was in fact 91 pounds. Rather, Conry has explained that his calculation of spreader bar
compression force of 91 pounds was not a direct statement of the forces on the spreader bar at
the time of the accident, but was the maximum force that could have been applied to produce the
damage. Any greater force would have created larger permanent deflections in the spreader bar.
Conry explained that engineering calculations often require estimated values for unknown
variables and that the rate of error is calculated based on the variance in the unknown and
calculation method. Conry did not state that 91 pounds of pressure had to be applied when Kurt
ascended the ladder to produce the results, rather it was an unknown variable that he chose for

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his calculation. Conry was unable to calculate the exact force on the spreader bar prior to the
rivet connection failure because the level of bending and cracking that existed prior to Kurt’s
impact with the ladder was unknown. Conry explained that the calculation contained a certain
level of uncertainty but that level was quantifiable by determining the variance. Therefore, his
methodology satisfied the Daubert standard.
Furthermore, contrary to the defendants’ contention that Conry did not account for Kurt’s
impact with the bar, Conry explained that Kurt’s contact with the bar could have distorted the
spreader bar, adding to any previous bending. Any deflection in the spreader bar created by
Kurt’s impact would have been less severe, resulting in a much lower compressive force in the
spreader bar prior to the rivet connection failure. In any case, as explained above, Conry has
maintained that the spreader bar only could have separated in the manner he described because
of the markings and indentations on the inside rail.
In support of their argument, the defendants rely on Morehouse v. Louisville Ladder,
2004 WL 2431796 (D.S.C. June 28, 2004). In this case, the expert hypothesized that the ladder
spontaneously buckled because of a weak or defective rail. Morehouse, 2004 WL 2431796 at
*5. He did not test his hypothesis and assumed that the bent leg on the ladder did not occur prior
to the incident or from the plaintiff’s impact with the ladder. Morehouse, 2004 WL 2431796 at
*5. The court ruled that the plaintiff’s expert had not employed sound scientific methodologies
to test his theory and instead developed a hypothesis to conform to the condition of the ladder
post-accident. Morehouse, 2004 WL 2431796 at *6. For this reason, the expert’s testimony was
unreliable under Daubert. Morehouse, 2004 WL 2431796 at *6. In reaching this decision, the
court relied on the fact that the expert did not know the condition of the ladder before the

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accident, and because the defendant lost his memory, the expert could not say whether the
damage was from the defendant coming into contact with the ladder during the fall. Morehouse,
2004 WL 2431796 at *5-6.
Here, the plaintiff’s father bought the ladder a few days before Kurt’s fall, and Kurt was
using the ladder for the first time on the day of his fall. Because the ladder never had been used
prior to this incident, Conry made a well-supported assumption that the ladder was in the
condition in which it left the store at the time of Kurt’s fall. Conry also knew Kurt’s actions
prior to the fall and accounted for the contact that Kurt had with the ladder. Conry stated that
certain markings on the ladder could not have been from Kurt’s contact with the ladder. Rather,
the only way the markings could have appeared was from the prior separation of the spreader bar
from the rail as a result of the over-tightening of the rivets. Conry both knew the prior condition
of the ladder and the course of events that led to Kurt’s injury, including Kurt’s movements
while on the ladder and subsequent impact with the ladder. He applied his knowledge to
determine how the marks came to exist on the ladder.
The defendants further argue that Conry’s theory of causation was based on speculation
because there was no evidence that the rivets were indented when set. However, it is Conry’s
position that physical evidence supports this conclusion. The depressions in the fiberglass rail
and key witness marks reflect the over tightening of the rivets. The defendants’ evidence may
support a different conclusion, but at this point the court is not to weigh the evidence. Conry has
presented one theory on how the marks came to exist and what may have caused Kurt’s accident.
It is a task for the jury to sort out which theory is better supported by the evidence, but at this
point the court agrees that the physical markings on the ladder may support Conry’s theory.

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The defendants also argue that Conry conceded that the ANSI A14.5 was authoritative
standard for ladder safety and that Conry does not claim that the ladder would fail any tests
under this standard. To begin, compliance with safety regulations is not dispositive of the
manufacturer’s or seller’s liability. Ind. Code § 34-20-5-1. Instead, it creates a rebuttable
presumption that the product was not defective. Ind. Code § 34-20-5-1. Additionally, Conry
did not concede that the subject ladder met the ANSI standards. At his deposition, Conry agreed
that the ladder as designed complied with the authoritative safety guidelines. However, he did
not agree, nor can it be certain, that the subject ladder complied with the ANSI guidelines.
Although the reports on the batch test from the subject ladder’s time of manufacture revealed
that the ladders met the ANSI A14.5 standards, this is not telling that the ladder in question
conformed to the standards. This is further supported because the subject ladder did not conform
to the design specifications. The rivets did not have a lip and a smaller diameter rivet was used.
Therefore, Conry’s “concession” that the ladder complied with the applicable safety guidelines
does not provide grounds upon which to exclude his opinion.
Finally, the defendants argue that Conry’s theory was contrary to the facts of the case.
Conry stated that the pressure could have been created by Kurt digging the rear ladder feet into
the clay and squeezing both spreaders. However, Kurt testified that the ground was so hard that
“if you struck it with a hammer the ground would spark.” Conry explains that the defendants
misinterpret his theory. It is the defendants’ position that compressive force only can
deliberately be generated by pushing on the front rails. Conry’s testimony that it was possible a
different force was applied by Kurt digging the ladder into the ground was a means of showing
how other forces could be applied to the spreader bar. Conry attempted to show that by stepping

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forward on the ladder, greater compressive forces may have been in play than if the user stepped
up. Moreover, it is plausible that the parties had a different understanding of “digging” and that
Conry used this term to refer to Kurt’s set up of the ladder. This is evident by the plaintiffs’
response that the defendants do not understand Conry’s explanation of Kurt’s set-up of the
ladder.
Because ANSI tests require a great amount of flexibility, it was possible that Kurt applied
compressive force to the spreader bar without being aware of it, such as when he shook the
ladder to assure its stability or from the pressure of the ladder against the ground when he jiggled
the ladder. This would have created a different force between the ladder and the ground than
that produced by someone climbing up the ladder. Review of Conry’s expert report does not
reveal that his theory was based on Kurt digging the legs of the ladder into the hard ground.
However, at his deposition, he stated that it was a possibility that the ladder was dug into the
earth, bending the spreader bar. Conry did not state that this was the only way in which the 70
pound load necessary to bend the spreader bar could have been applied. Rather, he asserted that
the rivets were applied improperly during the manufacturing process causing weakening and
cracks in the fiberglass. The fiberglass had potential crack nucleation sites at the location of the
rivet head and bracket edge indentations, and by applying an incalculable amount of force both
during the ladder’s set up and Kurt’s ascent, the cracks weakened the structure around the rivet
holes and caused the bracket to break during Kurt’s use of the ladder.
Overall, the court agrees that Conry’s theory does not require the testing promoted by the
defendants, nor does Daubert demand such testing. An expert’s opinion also is sufficient if the
theory can be tested, is generally accepted, or is subjected to peer review. Conry had specialized

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knowledge in the failure of machines, from which he was able to deduce from the marks on the
ladder his theory on why the ladder failed. He applied generally accepted engineering principles,
principles of failure analysis, and the scientific method to consider all of the markings on the
ladder and to deduce the only manner in which the markings could have come into being. Conry
has demonstrated that it is a common and long-standing practice within engineering to evaluate
the failure of machines, an area in which he has extensive background. Such knowledge is a core
to any engineering education. Specifically, the field of forensic engineering relies on applying a
reverse process to explain all evidence and the possible path(s) that could have produced all the
evidence.
Moreover, contrary to the defendants’ opinion, Conry accounted for all the evidence.
Conry stated that he considered Kurt’s impact on the ladder and the possible effect that could
have had on the shape of the spreader bar. He pointed to physical evidence to show why he
believed the problems instead resulted from the manufacture of the ladder. It is his position that
the rivets were improperly applied, and based on the markings, this had to occur during
manufacture. This ultimately led to the separation of the spreader bracket from the rail and
caused Kurt’s fall once force was applied. The defendants assert that Kurt could not have
exerted the force necessary to cause the damage, but Conry maintains that the force exerted is
unknown and cannot be calculated because of the condition of the ladder and the damage caused
by Kurt’s impact.
Turning now to the defendants’ motion for summary judgment, pursuant to Federal Rule
of Civil Procedure 56(c), summary judgment is proper only if it is demonstrated that “there is no
genuine issue as to any material fact and the moving party is entitled to a judgment as a matter of

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law.” Celotex Corp. v. Catrett, 477 U.S. 317, 322-23, 106 S. Ct. 2548 , 91 L. Ed. 2d 265 (1986);
Kidwell v. Eisenhauer, 679 F.3d 957, 964 (7th Cir. 2012); Stephens v. Erickson, 569 F.3d 779,
786 (7th Cir. 2009). The burden is upon the moving party to establish that no material facts are
in genuine dispute, and any doubt as to the existence of a genuine issue must be resolved against
the moving party. Adickes v. S.H. Kress & Company, 398 U.S. 144, 160, 90 S. Ct. 1598, 1610,
26 L. Ed.2d 142, 155 (1970); Stephens, 569 F.3d at 786. A fact is material if it is outcome
determinative under applicable law. There must be evidence on which the jury could reasonably
find for the nonmoving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S. Ct.
2505, 2510, 91 L.Ed.2d 202, 212 (1986); Stephens, 569 F.3d at 786; Wheeler v. Lawson, 539
F.3d 629, 634 (7th Cir. 2008). However, summary judgment may be entered against the nonmoving party if it is unable to “establish the existence of an essential element to [the party’s]
case, and on which [that party] will bear the burden of proof at trial . . .”. Kidwell, 679 F.3d at
964 (citing Benuzzi v. Bd. of Educ., 647 F.3d 652, 662 (7th Cir.2011) (quoting Celotex Corp. v.
Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986)).
In deciding a motion for summary judgment, the trial court must determine whether the
evidence presented by the party opposed to the summary judgment is such that a reasonable jury
might find in favor of that party after a trial.
The inquiry performed is the threshold inquiry of determining
whether there is the need for a trial--whether, in other words, there
are any genuine factual issues that properly can be resolved only by
a finder of fact because they may reasonably be resolved in favor of
either party.
[T]his standard mirrors the standard for a directed verdict under
Federal Rule of Civil Procedure 50(a), which is that the trial judge
must direct a verdict if, under the governing law, there can be but one
reasonable conclusion as to the verdict.
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Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250, 106 S. Ct. 2505,
2511, 91 L.Ed.2d 202, 212 (1986).

See also Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 149-51, 120 S.Ct. 2097, 2109,
147 L. Ed.2d 105, 120-22 (2000) (setting out the standard for a directed verdict); Celotex Corp., 477
U.S. at 322-23, 106 S. Ct. at 2553; Stephens, 569 F.3d at 786; Argyropoulos v. City of Alton, 539
F.3d 724, 732 (7th Cir. 2008)(stating that a genuine issue is one on which a reasonable fact finder
could find for the nonmoving party); Springer v. Durflinger, 518 F.3d 479, 483 (7th Cir.
2008)(stating that a genuine issue exists and summary judgment is inappropriate if there is sufficient
evidence for a jury to return a verdict for the nonmoving party).
The plaintiffs raised six counts against the defendants including: (1) Negligence-Strict
Liability, (2) Negligence- Failure to Warn, (3) Negligence, (4) Breach of Warranty of
Merchantability, (5) Breach of Implied Warranty of Fitness for a Particular Purpose, and (6) Loss
of Consortium. The defendants argue that summary judgment should be granted on each of these
counts.
When exercising diversity jurisdiction, the court applies state substantive law and federal
procedural law. Ritchie v. Glidden Company, 242 F.3d 713, 720 (7th Cir.2001). See also Fidelity
National Title Insurance Co. of New York v. Intercounty National Title Insurance Co., 412 F.3d
745, 750 (7th Cir. 2005) (“The Federal Rules of Civil Procedure, not state procedural rules, govern
in diversity, as they do in federal-question, cases in federal district courts.”). Indiana Law governs
the substantive issues of the parties’ dispute and consequently implicates the Indiana Product
Liability Act.
The IPLA states:
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This article governs all actions that are:
(1) brought by a user or consumer;
(2) against a manufacturer or seller; and
(3) for physical harm caused by a product;
regardless of the substantive legal theory or theories upon which the action is brought.
Ind. Code § 34–20–2–1.
In order for liability to attach under the IPLA, a plaintiff must prove that “(1) the product was
defective and unreasonably dangerous; (2) the defective condition existed at the time the product
left the defendant's control; and (3) the defective condition was the proximate cause of the plaintiff's
injuries.” Deaton v. Robinson, 878 N.E.2d 499, 501 (Ind. App. 2007) (citing Coffman v. PSI Energy,
Inc., 815 N.E.2d 522, 527 (Ind. App. 2004)). See also Ind. Code § 34-20-4-1 (explaining that
plaintiff must show both that product was in a defective condition and unreasonably dangerous);
Warriner v. DC Marshall Jeep, 962 N.E.2d 1263, 1267 (Ind. App. 2012). “‘Unreasonably
dangerous’, for purposes of IC 34-20, refers to any situation in which the use of a product exposes
the user or consumer to a risk of physical harm to an extent beyond that contemplated by the
ordinary consumer who purchases the product with the ordinary knowledge about the product's
characteristics common to the community of consumers.” Ind. Code § 34-6-2-146. A product may
be defective because of a defective design, a failure to warn of the dangers of the product’s use, or
a manufacturing flaw. Ind. Code § 34-20-2-2.
The defendants argue that the plaintiffs were unable to establish that the ladder was
unreasonably dangerous because Conry’s testimony must be excluded. As explained above, Conry
provided sufficient support for his theories, and his testimony will not be excluded. Through his
testimony, the plaintiffs presented evidence that the ladder was both defective because it was not
built to design specifications and dangerous because the defect caused cracking and the spreader bar

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to separate. Specifically, Conry explained that the ladder was defective because the rivets were
over-tightened during the manufacturing process, thereby creating nuclei for cracks and weakening
the rail. This defect was dangerous because once pressure was applied to the ladder, cracks formed,
specifically around the rivets. This caused the rivets to separate from the rail and the spreader bar
to fail. Moreover, the over-tightening of the rivets and consequential weakening of the rail was not
observable to the user, nor was it obvious how much force the user was applying given the flexibility
of the ladder. Therefore, the potential risk was not observable to the reasonably user.
The defendants also argue that the ladder is presumed not defective because it complied with
the State of the Art and Applicable Governmental Regulations and that the plaintiffs have not
rebutted this presumption. Indiana Code § 34-20-5-1 states:
In a product liability action, there is a rebuttable presumption that the product that
caused the physical harm was not defective and that the manufacturer or seller of the
product was not negligent if, before the sale by the manufacturer, the product:
(1) was in conformity with the generally recognized state of the art applicable to the
safety of the product at the time the product was designed, manufactured, packaged,
and labeled; or
(2) complied with applicable codes, standards, regulations, or specifications
established, adopted, promulgated, or approved by the United States or by Indiana,
or by an agency of the United States or Indiana.

When these conditions are met, the plaintiff bears the burden of establishing that he has evidence
to overcome the presumption. Schultz v. Ford Motor Co., 857 N.E.2d 977, 985 (Ind. 2006).
The defendants argue that they have uncontested evidence that the ladder was in conformity
with the generally recognized state of the art guidelines applicable to the ladder at the time it was
designed, manufactured, packaged, and labeled. The ladder was labeled, and ladders from the
subject ladder’s production batch were tested and found to conform to ANSI A14.5 and the OSHA
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requirements. Conry stated in his deposition that he was not claiming that the ladder would have
failed any ANSI performance test regardless of his criticism of the rivet head shape, size, and
setting. For this reason, the defendants argue that the plaintiffs cannot rebut any presumption to the
contrary.
The defendants misinterpret Conry’s testimony. During the line of questioning at his
deposition concerning the ANSI safety standards, Conry was asked whether he was going to claim
in this case that the design of the accident ladder was deficient. Conry responded “The design, no.”.
(Conry Dep. p. 9) Conry admitted only that the design of the ladder would have complied. Conry
also stated that he did not know whether the subject ladder would have failed any tests at the time
the ladder was manufactured. (Conry Dep. p. 6) Therefore, neither the plaintiffs nor their expert
admitted that the subject ladder complied with ANSI standards.
The plaintiffs do not dispute that there is a rebuttable presumption that the ladder was not
defective.

However, the plaintiffs argue that Conry’s testimony rebuts the presumption.

Specifically, Conry has demonstrated that the subject ladder was not produced in accordance with
the design standards both because it used defective rivets and the rivets were over-tightened. For
these reasons, it cannot be determined whether the subject ladder would have complied with the
ANSI standards. Certainly, the ANSI would not approve the condition of a ladder that had cracks
and would buckle under the type of use Kurt testified to conducting.
The defendants also argue that Conry’s causation theory relies on Kurt’s misuse of the
ladder. The IPLA states that:
It is a defense to an action under this article (or IC § 33-1-1.5 before its
repeal) that a cause of the physical harm is a misuse of the product by the claimant
or any other person not reasonably expected by the seller at the time the seller sold
or otherwise conveyed the product to another party.
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Ind. Code § 34-20-6-4.
To allocate fault to a plaintiff in a products liability action as a matter of law on the theory of
misuse, the undisputed evidence must conclusively show that the plaintiff’s use of the product was
not reasonably expected to the seller. Barnard v. Saturn Corp., 790 NE2d 1023, 1031 (Ind. App.
2003). The defendant bears the burden of showing that the plaintiff misused the product in an
unforeseeable manner. Marshall v. Clark Equipment Co., 680 NE2d 1102, 1108 (Ind. App. 1997).
The defendants argue that if Kurt squeezed the front and rear legs together to buckle the
spreader, he did not use the ladder in the way it was intended. This would create the same amount
of pressure that would be created by a 600 pound person during normal use, and the ladder only was
intended for someone who weighed less than 300 pounds. However, the facts reveal that Kurt shook
the ladder to make sure it was level and that all the feet were on the ground. This event may have
caused an impact greater than that created by a person climbing up the ladder because the ladder
may have impacted with the ground in a different way. Whether it was reasonably foreseeable that
a user would shake the ladder to assure its stability in the manner Kurt did is a question better
reserved for the jury. For these reasons, the defendants’ motion for summary judgment on Count
I is DENIED.
The defendants next argue that summary judgment must be granted on Count II, NegligenceFailure to Warn, because the plaintiffs have not provided evidence to support the allegation that a
lack of warning caused Kurt’s fall. Proof of the proximate causation element is measured according
to a two-part inquiry that looks first to causation in fact. City of Gary ex. rel. King v. Smith &
Wesson, 801 N.E.2d 1222, 1243 (Ind. 2003). The Indiana Supreme Court stated that factual
causation presents a question of fact that asks if the injury would not have occurred without the

24

defendant's breach. City of Gary, 801 N.E.2d at 1243-44 ( citing Cowe v. Forum Group, Inc., 575
N.E.2d 630, 635 (Ind. 1991)). See also Paragon Family Restaurant v. Bartolini, 799 N.E.2d 1048,
1055 (Ind. 2003)(“At a minimum, proximate cause requires that the injury would not have occurred
but for the defendant's conduct.”).
The second proximate cause inquiry regards the scope of liability and limits liability for
those acts that, though a factual cause, were not “a natural and probable consequence, which in light
of the circumstances, should have been foreseen or anticipated.” Bader v. Johnson, 732 N.E.2d
1212, 1218 (Ind.2000). The question of proximate cause is a matter for the jury, but “it becomes a
question of law where only a single conclusion can be drawn from the facts.” Hamilton v. Ashton,
846 N.E.2d 309, 316 (Ind. App. 2006); Peters, 804 N.E.2d at 743.
The plaintiffs have not presented any evidence to show that the ladder’s warnings and
instructions were deficient. They have not pointed to any omissions or errors in the warnings labels
or presented any argument on how additional warnings may have resulted in a different outcome.
In fact, in their response to the defendants’ motion in limine to bar Conry’s testimony, the plaintiffs
stated that “this is not a case involving defective design and inadequate warnings.” (Pl.’s Br. p. 10)
At his deposition, Kurt testified that he read all the instructions and warnings on the ladder
before he used it. He further stated that he knew the proper use of a ladder. When asked whether
any warning would have stopped him from climbing or handling the ladder, Kurt replied that he did
not know if a warning would have helped. Additionally, the plaintiffs did not respond to this
argument in their response brief and have waived any challenge to the defendants’ argument.
Hernandez v. Cook County Sheriff’s Office, 634 F.3d 906, 913 (7th Cir. 2011); Laborers’
International Union of North America v. Caruso, 197 F.3d 1195, 1197 (7th Cir. 1999). For these

25

reasons, the defendants’ motion for summary judgment is GRANTED with respect to Count II.
The defendants next argue that the IPLA supplants common law claims for negligence. The
IPLA is a codification of the common law doctrine of strict liability, through which the Indiana
legislature intended to preempt the field of strict liability in tort. Koske v. Townsend Engineering
Co., 551 N.E.2d 437, 442 (Ind.1990). After amendments to the Act in 1995, it is “clear the
legislature intended that the [A]ct govern all product liability actions, whether the theory of liability
is negligence or strict liability in tort.” Stegemoller v. ACandS, Inc., 767 N.E.2d 974, 975 (Ind.
2002); Burt v. Mikita USA Inc., 212 F.Supp.2d 893, 897 (N.D. Ind. 2002) Though the Act describes
separate proof schemes derived from strict liability and negligence standards, the Act itself provides
for a single cause of action when a consumer seeks to recover from a manufacturer or seller for
physical harm. In re Lawrence W. Inlow Accident Litigation, No. IP 99–0830–C H/K, 2002 WL
970403 at *12 (S.D.Ind. Apr.16, 2002) (stating that the Act is “applicable to all actions for physical
harm brought by a consumer against a manufacturer or seller of a product, regardless of the
substantive legal theory.”) (citations and quotations omitted); Tungate v. Bridgestone Corp., 2004
WL 771191 at *6 (S.D.Ind. March 26, 2004). For this reason, the plaintiffs’ common law
negligence claim is merged into the IPLA claim.
Likewise, claims for breach of implied warranty sounding in tort are redundant to a count
based on strict liability in tort, and both cannot be pursued. Bunkel v. Renovations, Inc., 822
N.E.2d 150, 152-153 (Ind. 2005); Spangler v. Sears, Roebuck and Co., 752 F.Supp. 1437, 1449
(S.D. Ind. 1990); Thiele v. Faygo Beverage, Inc., 489 N.E.2d 562, 584 (Ind. App. 1986). Again,
the plaintiffs have not responded to this argument and have waived their right to do so. Hernandez,
634 F.3d at 913; Caruso, 197 F.3d at 1197. The court GRANTS the defendants’ motion for

26

summary judgment on this count.
Based on the foregoing, the Motion in Limine to Bar the Testimony of Plaintiffs’ Expert
Thomas Conry [DE 41] is DENIED, and the Motion for Summary Judgment [DE 43] is GRANTED
IN PART and DENIED IN PART.
ENTERED this 21st day of June, 2013

/s/ Andrew P. Rodovich
United States Magistrate Judge

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