Jackson v. International Paper Company

Filing 62

OPINION AND ORDER GRANTING Defendant/Third-Party Plaintiff, International Paper Companys 46 MOTION for Summary Judgment. Court DIRECTS the Clerk to enter judgment in favor of Defendant International Paper Company and against Plaintiff Oliver Jackson. The Third-Party Complaint brought by International Paper Company against Transcorr, LLC REMAINS PENDING. Signed by Magistrate Judge Paul R Cherry on 12/18/15. cc: Jackson (mc)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF INDIANA
HAMMOND DIVISION
OLIVER JACKSON,
Plaintiff,

)
)
)
v.
) CAUSE NO.: 2:13-CV-429-PRC
)
INTERNATIONAL PAPER COMPANY,
)
Defendant.
)
_________________________________________ )
)
INTERNATIONAL PAPER COMPANY,
)
Third-Party Plaintiff,
)
)
v.
)
)
TRANSCORR, LLC,
)
Defendant.
)
OPINION AND ORDER
This matter is before the Court on Defendant/Third-Party Plaintiff, International Paper
Company’s Motion for Summary Judgment [DE 46], filed on October 29, 2015. For the reasons set
forth below, the Court grants the Motion for Summary Judgment.
PROCEDURAL BACKGROUND
On October 10, 2013, Plaintiff Oliver Jackson filed a Complaint against Defendant
International Paper Company in the Lake Circuit Court, Lake County, Indiana. Plaintiff makes the
following allegations in the Complaint. On May 9, 2012, he was operating a 2007 Freightliner
pursuant to his employment with TransCorr, LLC. He traveled to Defendant International Paper
Company’s mill in the town of Cayuga, Indiana, where Plaintiff picked up a pre-loaded trailer that
was loaded with 6 rolls of paper in an enclosed trailer. The trailer was attached to the tractor and was
intended for delivery by Plaintiff. Plaintiff began operating the tractor and trailer on U.S. Highway
41 North toward the delivery destination. Approximately an hour later, Plaintiff attempted to exit

at the U.S. Highway 41 Northbound ramp 2 to Interstate 80 Westbound in the City of Hammond,
Lake County, Indiana. Plaintiff alleges that as he entered the ramp, suddenly and without warning,
the load within the trailer shifted, causing the tractor and trailer to roll over on its left side and
collide with the roadway and guardrail.
Plaintiff alleges that Defendant breached the applicable duty of care and was careless and
negligent and/or reckless, resulting in the collision. Specifically, Plaintiff alleges that Defendant
failed to properly brace or secure the load within the trailer, which resulted in the load breaking
loose and destabilizing the tractor and trailer causing the roll over and crash; failed to properly
secure the paper rolls, which were loaded with the eyes vertical in a sided vehicle with no
securement to prevent rear movement in violation of Indiana Code and the Code of Federal
Regulations; failed to properly educate, train and/or supervise the employees responsible for loading
and securing paper rolls and/or loads such as the load at issue; and was otherwise careless or
negligent, causing the collision.
The case was removed to this Court on November 22, 2013.
Defendant International Paper Company filed an Answer on December 9, 2013.
On February 20, 2014, the Court set a deadline of September 30, 2014, for Plaintiff’s expert
witness disclosures and reports and a discovery deadline of January 30, 2015.
On May 27, 2014, Defendant filed a Third Party Complaint against Transcorr, LLC, which
filed an Answer on July 25, 2014.
On September 18, 2014, the Court held a scheduling conference and reset the deadline for
Plaintiff’s expert witness disclosures and reports to March 30, 2015, and the discovery deadline for
June 29, 2015.

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On July 1, 2015, the Court granted Plaintiff’s motion to extend the discovery deadline to
September 29, 2015.
On August 20, 2015, the Court issued an Opinion and Order, granting Defendant’s Motion
to Strike and Exclude Plaintiff’s Improper Expert Disclosure of Dr. R. Matthew Brach, Ph.D., P.E.
and denying Plaintiff’s Motion for Enlargement of Time to File Rebuttal Expert Report.
On October 29, 2015, Defendant filed the instant Motion for Summary Judgment and a
Notice to Pro Se Plaintiff. On November 20, 2015, the Court extended Plaintiff’s response deadline
to December 17, 2015. The Court reaffirmed the December 17, 2015 response deadline on December
1, 2015. Plaintiff has not filed a response, and the time to do so has passed.
The parties filed forms of consent to have this case assigned to a United States Magistrate
Judge to conduct all further proceedings and to order the entry of a final judgment in this case.
Therefore, this Court has jurisdiction to decide this case pursuant to 28 U.S.C. § 636(c).
SUMMARY JUDGMENT STANDARD
The Federal Rules of Civil Procedure mandate that motions for summary judgment be
granted “if the movant shows that there is no genuine dispute as to any material fact and the movant
is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). Rule 56 further requires the entry
of summary judgment, after adequate time for discovery, against a party “who fails to make a
showing sufficient to establish the existence of an element essential to that party’s case, and on
which that party will bear the burden of proof at trial.” Celotex Corp. v. Catrett, 477 U.S. 317, 322
(1986) (citing Fed. R. Civ. P. 56(c)). “[S]ummary judgment is appropriate—in fact, is
mandated—where there are no disputed issues of material fact and the movant must prevail as a
matter of law. In other words, the record must reveal that no reasonable jury could find for the non-

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moving party.” Dempsey v. Atchison, Topeka, & Santa Fe Ry. Co., 16 F.3d 832, 836 (7th Cir. 1994)
(citations and quotations omitted).
A party seeking summary judgment bears the initial responsibility of informing the court of
the basis for its motion and identifying those portions of the pleadings, depositions, answers to
interrogatories, and admissions on file, together with the affidavits, if any, that it believes
demonstrate the absence of a genuine issue of material fact. See Celotex, 477 U.S. at 323; Fed. R.
Civ. P. 56(c). The moving party may discharge its initial responsibility by simply “‘showing’—that
is, pointing out to the district court—that there is an absence of evidence to support the nonmoving
party’s case.” Celotex, 477 U.S. at 325. When the nonmoving party would have the burden of proof
at trial, the moving party is not required to support its motion with affidavits or other similar
materials negating the opponent’s claim. Celotex, 477 U.S. at 323, 325; Green v. Whiteco Indus.,
Inc., 17 F.3d 199, 201 n.3 (7th Cir. 1994); Fitzpatrick v. Catholic Bishop of Chi., 916 F.2d 1254,
1256 (7th Cir. 1990). However, the moving party, if it chooses, may support its motion for summary
judgment with affidavits or other materials, and, if the moving party has “produced sufficient
evidence to support a conclusion that there are no genuine issues for trial,” then the burden shifts
to the nonmoving party to show that an issue of material fact exists. Becker v. Tenenbaum-Hill
Assoc., 914 F.2d 107, 110-111 (7th Cir. 1990) (citations omitted); see also Hong v. Children’s
Mem’l Hosp., 993 F.2d 1257, 1261 (7th Cir. 1993).
Once a properly supported motion for summary judgment is made, the non-moving party
cannot resist the motion and withstand summary judgment by merely resting on its pleadings. See
Fed. R. Civ. P. 56(e); Donovan v. City of Milwaukee, 17 F.3d 944, 947 (7th Cir. 1994). Rule 56(e)
provides that “[i]f a party fails to properly support an assertion of fact or fails to properly address

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another party’s assertion of fact as required by Rule 56(c), the court may . . . consider the fact
undisputed for purposes of the motion [or] grant summary judgment if the motion and supporting
materials—including the facts considered undisputed—show that the movant is entitled to it . . . .”
Fed. R. Civ. P. 56(e)(2), (3); see also Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248-50 (1986).
Thus, to demonstrate a genuine issue of fact, the nonmoving party must “do more than simply show
that there is some metaphysical doubt as to the material facts,” but must “come forward with
‘specific facts showing that there is a genuine issue for trial.’” Matsushita Elec. Indus. Co. v. Zenith
Radio Corp., 475 U.S. 574, 586-87 (1986) (quoting Fed. R. Civ. P. 56(e)).
In viewing the facts presented on a motion for summary judgment, a court must construe all
facts in a light most favorable to the non-moving party and draw all legitimate inferences in favor
of that party. See Anderson, 477 U.S. at 255; Srail v. Vill. of Lisle, 588 F.3d 940, 948 (7th Cir.
2009); NLFC, Inc. v. Devcom Mid-Am., Inc., 45 F.3d 231, 234 (7th Cir. 1995). A court’s role is not
to evaluate the weight of the evidence, to judge the credibility of witnesses, or to determine the truth
of the matter, but instead to determine whether there is a genuine issue of triable fact. See Anderson,
477 U.S. at 249-50.
MATERIAL FACTS
On May 9, 2012, Plaintiff Oliver Jackson was operating a 2007 Freightliner truck tractortrailer pursuant to his employment as a truck driver with TransCorr, LLC. Plaintiff was hired as a
truck driver at TransCorr in 2011 and was assigned to the same route five days a week for the year
leading up to the occurrence. Plaintiff was assigned to the “International Paper corrugated run,”
which required him to travel in a triangle among various International Paper mills.

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On May 9, 2012, Plaintiff arrived at the International Paper Cayuga mill to pick up a trailer
assignment. The trailer assigned to Plaintiff had already been sealed by the time Plaintiff arrived at
the mill. The trailer contained six rolls of paper: four 94-inch by 55-inch rolls of paper, one 94-inch
by 54-inch roll of paper, and one 98-inch by 55-inch roll of paper. The paper contained in the trailer
was loaded and sealed at the Cayuga mill. Plaintiff did not see the paper load prior to the occurrence
and had no idea how the paper rolls were placed within the trailer. Before exiting the mill with the
pre-loaded and sealed trailer, Plaintiff was required to “scale out” and testified that “everything was
on axle the way it was supposed to have been.” (Def. Br., Ex. A, p. 60). At the time Plaintiff exited
the paper mill with the pre-loaded and sealed trailer, the weight of the cargo on the trailer was
evenly distributed. (Id. at 69:1-4; 92:19-22).
Plaintiff proceeded from the mill to U.S. Highway 41 on the designated International Paper
route where he traveled for approximately 90 miles to Indianapolis Boulevard. At Indianapolis
Boulevard, Plaintiff was at a traffic light getting ready to merge onto Interstate 80/94 via a
360-degree single lane ramp. Plaintiff testified that as he ascended the ramp to merge onto Interstate
80/94, he was looking to his left to navigate the merging traffic when a vehicle came up on his right
side in the emergency lane and “shot in front” of him. (Id. at 80-81). Plaintiff testified he was not
looking to his right and had no reason to look to his right because no cars should have been on his
right side. (Id. at 81:6-8; 82:6-8).
In response to his belief that the passing vehicle may stop in front of him, Plaintiff “engaged
the brakes hard and pulled the steering wheel to the left.” (Def. Br., Ex. 3, Pl. Resp. to Inter. 23; Def.
Br. Ex. 1, at 158). The truck rolled over on the driver’s side onto the wall separating the ramp from
the interstate merge. (Def. Br., Ex. 1, at 73).

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Indiana police arrived at the scene and noted “unsafe speed” as the primary cause of the
occurrence. No vehicle or environmental contributing factors were noted as a cause of the
occurrence on the report.
Defendant retained expert engineer Michael A. Sutton to investigate the rollover accident.
On May 15, 2015, Defendant timely served Plaintiff with its F.R.C.P. 26(a)(2) disclosure,
identifying the use of Mr. Sutton as an expert witness and attaching his report and qualifications. Mr.
Sutton reviewed the Indiana Officer’s Standard Crash Report and Driver/Vehicle Examination
Report, the bill of lading of the paper stock loaded onto the trailer on the day of the accident,
discovery material from Plaintiff, discovery material from Transcorr, LLC, discovery material from
Defendant, aerial photographs of the accident site, Federal Motor Carrier Safety Regulations 49 CFR
part 393.122, and the American Association of State Highway and Transportation Officials “A
Policy on Geometric Design of Highways and Streets, 2001.”
Based upon his review of the material and his knowledge, qualifications, and expertise, Mr.
Sutton offers the opinion that “[t]here is no evidence that the positioning or securement of the paper
roll load caused or contributed to this accident.” (Def. Br., Ex. A, Sutton Report, ¶ 10). Mr. Sutton
also offers the following additional opinions regarding causation:
• The securement of the paper rolls was consistent with federal regulations and
industry standards. Id. at ¶ 1.
• Accelerations sufficient to move a paper roll would only occur after the tractor
trailer has already begun to roll over. Id. at ¶ 2.
• The minimum sustained acceleration rate to cause a paper roll to tip exceeds the
maximum sustained deceleration rate for a truck like the one Plaintiff was driving.
Id. at ¶ 3.

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• The placement of the paper rolls on a friction mat prevents movement of the rolls,
and, in general, the braking, accelerating, and cornering capability of a tractor trailer
is insufficient to cause movement of a roll relative to the trailer. Id. at ¶ 4.
• Plaintiff’s deceleration may have caused minor motion of the paper insufficient to
result in a lateral imbalance or increased risk of a rollover. Furthermore, at the speed
Plaintiff claims to have been driving, the truck would have come to a stop prior to
amassing enough energy to roll over. Id. at ¶ 5-6.
• The g-force generated by a truck traveling at Plaintiff’s alleged rate of speed would
have been insufficient to tip or slide a paper roll. Furthermore, the rollover threshold
of the truck is calculated at a lower g-force than that necessary to tip or slide a paper
roll. Accordingly, the truck would roll before the paper began to slip or tip. Id. at ¶
7.
• To generate enough g-force of lateral acceleration to roll the truck, Plaintiff would
have to be traveling 30 to 32 mph. At that speed, the truck would be at risk for a
rollover regardless of the way the cargo was positioned and secured. Id. at ¶ 8.
• The physical evidence demonstrates that Plaintiff caused the accident by driving
at an unsafe speed on the exit ramp. Id. at ¶ 9.
Plaintiff’s proposed rebuttal expert disclosure was stricken and the testimony and opinion
of the proposed expert was excluded by the Court on August 20, 2015.
ANALYSIS
To prevail on a claim for negligence under Indiana law, a plaintiff must prove: (1) the
defendant owed the plaintiff a duty of care at the time the injury occurred; (2) the defendant’s
behavior did not conform to that standard of care; and (3) the plaintiff’s injuries were proximately
caused by the defendant’s breach of the duty of care. Neal v. Cure, 937 N.E.2d 1227, 1236 (Ind. Ct.
App. 2010) (citing McSwane v. Bloomington Hosp. and Healthcare Sys., 916 N.E.2d 906, 910 (Ind.
2009)). Defendant International Paper Company seeks summary judgment in its favor on Plaintiff
Oliver Jackson’s Complaint on the basis that Plaintiff has failed to make a showing sufficient to
establish causation. Defendant argues that Defendant has offered expert testimony negating

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causation and Plaintiff has offered neither expert testimony to create a genuine issue of material fact
as to causation nor sufficient factual evidence to establish causation. Plaintiff has not filed a
response, and the time to do so has passed.
Under Indiana law, the plaintiff bears the burden of proving every element of the prima facie
case of negligence, including causation. Daub v. Daub, 629 N.E.2d 873, 877 (Ind. Ct. App. 1994);
see also Porter v. Whitehall Labs., Inc., 791 F. Supp. 1335 (S.D. Ind. 1992) (citing Cowe by Cowe
v. Forum Grp., 575 N.E.2d 630, 636 (Ind. 1991)). The plaintiff “must present evidence of probative
value based on facts, or inferences to be drawn from the facts, establishing both that the wrongful
act was the cause in fact of the occurrence and that the occurrence was the cause in fact of [his]
injury.” Daub, 629 N.E.2d at 877-78. A plaintiff cannot meet his burden on causation with evidence
based upon mere speculation. Id. Expert testimony is necessary when the issue of causation is not
within the understanding of a lay person. Id. This is because an expert “who has the ability to apply
principles of science to the facts, has the power to draw inferences from the facts which a lay witness
or jury would be incompetent to draw.” Id.
In U-Haul International v. Nulls Machine and Manufacturing Shop, the Indiana Court of
Appeals affirmed summary judgment for the defendant when the plaintiff “failed to demonstrate a
material issue of fact on the question of proximate cause.” 736 N.E.2d 271, 285 (Ind. Ct. App. 2000)
(citing Long v. Methodist Hosp. of Ind., Inc., 699 N.E.2d 1164 (Ind. Ct. App. 1998) (finding that the
issue of proximate cause was properly before the court because the defendant had designated the
affidavit of an expert stating that defendant’s conduct did not cause the plaintiff’s injuries)). The
U-Haul case involved allegations of the failure of a valve within a vehicle braking system. Id. at
284-85. The court found that the defendant had designated expert evidence negating the element of

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causation and that the plaintiff had failed to refute the evidence with its own expert opinion on
causation. Id. at 285. In requiring expert testimony on such a technical issue, the court explained
that, “[a]lthough most people are undoubtedly aware that the purpose of a vehicle’s brake system
is to stop the vehicle’s motion, the manner in which the separate components operate within that
system is beyond their knowledge or understanding.” Id. The court went on to hold that, “when
liability is premised upon an allegation that a specific component of the brakes failed and caused the
brakes to malfunction, expert testimony on that subject is necessary.” Id.
Here, Plaintiff is alleging that the improper loading and securement of six large rolls of paper
caused his vehicle to roll over. As in U-Haul, although most people are undoubtedly aware that a
shift in weight can generally cause imbalance, the manner and force required to prevent and/or
achieve an imbalance sufficient to roll a truck is a technical and scientific calculation based upon
gravitational forces that is beyond the knowledge or understanding of most lay individuals. As
outlined above in the report of Defendant’s expert, Mike Sutton, determining whether Plaintiff’s
accident could have been caused by the placement of the paper rolls requires analysis and
calculation of technical issues such as rate of speed, acceleration, deceleration, g-force, and
geometry. Mr. Sutton is qualified to perform such an analysis and has determined that “there is no
evidence that the positioning or securement of the paper roll load caused or contributed to this
accident.” (Def. Br., Ex. 5).
Accordingly, Mr. Sutton has negated an essential element of Plaintiff’s claim–causation, and
Plaintiff has not come forward with expert opinion and testimony to refute or raise a question of fact
as to Mr. Sutton’s expert opinion. Plaintiff cannot now or ever come forward with such evidence,
as Plaintiff has no expert. The time for disclosing and designating expert opinions has passed, and

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Plaintiff’s purported expert has been excluded from offering any opinions or testimony. See (Docket
entry 38). Accordingly, because Plaintiff has failed to demonstrate a material issue of fact on the
question of causation, summary judgment on behalf of Defendant is warranted.
Even if Plaintiff were not required to establish causation through expert opinion in this case,
he has still failed to offer any evidence to create a genuine issue of material fact as to causation.
Expert testimony is not required on causation if a plaintiff presents sufficient circumstantial evidence
to constitute a legal inference as opposed to mere speculation. Passmore v. Barrett, No. 2:13-CV290, 2015 WL 3737137, at *4 (N.D. Ind. June 15, 2015) (citing Smith v. Beaty, 639 N.E.2d 1029,
1034 (Ind. Ct. App. 1994)), reconsideration denied, No. 2:13-CV-290, 2015 WL 5350916 (N.D. Ind.
Sept. 14, 2015). “[T]he plaintiff’s burden may not be carried with evidence based merely upon
supposition or speculation.” Smith, 639 N.E.2d at 1033-34; Daub, 629 N.E.2d at 877. Furthermore,
“standing alone, evidence establishing a mere possibility of cause or which lacks reasonable
certainty or probability is not sufficient evidence by itself to support a verdict.” Daub, 629 N.E.2d
at 877; Taylor v. Cmty. Hosps. of Ind., Inc., 949 N.E.2d 361, 364 (Ind. Ct. App. 2011)
(“[N]egligence cannot be established through inferential speculation alone.” (quoting Hale v. Cmty.
Hosp. of Indianapolis, Inc., 567 N.E.2d 842, 843 (Ind. Ct. App. 1991)); see also Luphahla v. Marion
Cnty. Sheriff’s Dept., 868 N.E.2d 1155, 1157-58 (Ind. Ct. App. 2007) (citing Topp v. Leffers, 838
N.E.2d 1027, 1033 (Ind. Ct. App. 2005), trans. denied, 855 N.E.2d 998 (2006)).
In Daub, the plaintiff slipped on the defendant’s patio and began experiencing back pain
sometime thereafter. 629 N.E.2d at 877. Because the plaintiff failed to designate any medical expert
who could link her injury to the slip on the patio, the trial court granted judgment in favor of the
defendants at the close of the plaintiff’s evidence. Id. at 877. On appeal, the court affirmed the trial

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court’s ruling, finding that the plaintiff’s testimony alone was “so lacking in probative value on the
question of cause in fact that it offers the jury at best only the mere possibility that her back ailment
was in fact caused by the slip [she] experienced . . . .” Id. at 878.
Similarly, in Buckner v. Sam’s Club, Inc., the plaintiff alleged that she stepped on a small
object near a watch display at a store and suffered injury, but the small object was never found. 75
F.3d 290, 291-92 (7th Cir. 1996). After affirming the district court’s exclusion of a self-serving
affidavit from the plaintiff and an inappropriate “expert” affidavit, the Seventh Circuit affirmed
summary judgment for the defendant because the plaintiff had “no evidence linking the accident
with [defendant’s] alleged negligence; their case lacked the critical element of causation.” Id. at 293.
The court noted that “no one has seen this mysterious object” that allegedly caused the injury and
there was “no direct evidence to support that conclusion.” Id. at 294.
In the instant case, the paper rolls at issue were loaded and sealed in the trailer before
Plaintiff got to the mill. Plaintiff never saw the paper rolls prior to the accident and unequivocally
testified that he has no idea how the paper was loaded and secured within the trailer. Yet, Plaintiff
acknowledged that the weight of the cargo within his trailer was evenly distributed at the time of
departure. In other words, Plaintiff has no information as to how the paper was loaded and secured.
Thus, Plaintiff’s allegations that the paper rolls were improperly loaded and secured and that the
alleged improper loading and securing caused the rollover is speculative and devoid of any probative
value.
Plaintiff has offered no evidence supporting his theory other than the fact that the rollover
occurred. Plaintiff’s unsupported assertions regarding the paper load are even less probative and
more speculative when considered alongside Plaintiff’s own testimony that he had to brake hard to

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avoid another vehicle and that he was cited for traveling at an unsafe speed. In other words, even
if the loading and securement of the paper were one possible cause of the rollover, there is no
evidence to suggest that any inference to be drawn about the paper is probative enough to be
elevated above any inference that the Plaintiff’s own maneuver to the left or rate of speed was just
as likely to have caused the rollover. In fact, Defendant’s expert specifically opines that it was
Plaintiff’s behavior, and not the placement of the paper rolls, that caused the occurrence. Therefore,
even if Plaintiff were not required to offer an expert opinion in this case, the evidence before the
Court is devoid of any facts sufficient to establish causation, and summary judgment in favor of
Defendant is warranted on this additional ground.
CONCLUSION
Based on the foregoing, the Court hereby GRANTS Defendant/Third-Party Plaintiff,
International Paper Company’s Motion for Summary Judgment [DE 46]. The Court DIRECTS the
Clerk of Court to enter judgment in favor of Defendant International Paper Company and against
Plaintiff Oliver Jackson.

The Third-Party Complaint brought by International Paper Company against Transcorr, LLC
REMAINS PENDING.
So ORDERED this 18th day of December, 2015.

s/ Paul R. Cherry
MAGISTRATE JUDGE PAUL R. CHERRY
UNITED STATES DISTRICT COURT
cc:

Pro se Plaintiff

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