Valentine v. Jones Lang Lasalle Americas, Inc. et al

Filing 40

OPINION and ORDER Granting Defendant Kone, Inc.'s 31 Motion to Exclude Expert Report, Opinions, and Testimony of C. Stephen Carr, Ph.D. and 32 Motion for Summary Judgment - Signed by District Judge Judith E. Levy. (FMos)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
Marcia Valentine,
Plaintiff,
v.

Case No. 13-cv-10888
Hon. Judith E. Levy
Mag. Judge Mona K. Majzoub

Jones Lang LaSalle Americas, Inc.,
and Kone, Inc.,
Defendants.
________________________________/
OPINION AND ORDER GRANTING DEFENDANT KONE, INC.’S
MOTION TO EXCLUDE EXPERT REPORT, OPINIONS, AND
TESTIMONY OF C. STEPHEN CARR, Ph.D. [31] AND MOTION
FOR SUMMARY JUDGMENT [32]
This is a personal injury case.

Pending are defendant KONE,

Inc.’s motion to exclude the report, opinions, and testimony of plaintiff’s
expert, C. Stephen Carr, Ph.D. (Dkt. 31), and motion for summary
judgment. (Dkt. 32.)
I.

Background
This arises from the same incident outlined in the Court’s prior

opinion and order granting defendant Jones Lang LaSalle Americas,
Inc.’s motion for summary judgment. (Dkt. 37.) The Court accordingly

adopts that statement of facts in relation to the July 20, 2012 trip-andfall incident on elevator Unit 9 that gives rise to this litigation.
A. KONE’s Role
Defendant KONE, Inc. (“KONE”) is the designated elevator
maintenance and service contractor for Cadillac Place, the building
where plaintiff’s accident took place.

The State of Michigan owns

Cadillac Place, and awarded KONE the maintenance contract for the
building on May 1, 2012. Prior to that contract, elevator maintenance
and service was performed by Otis Elevator Company (“Otis”). KONE’s
route technician, David Boyd, serviced elevator Unit 9 on two occasions
prior to July 20, 2012: once on June 25, 2012, fixing Unit 9 after it
“timed out,” and once on July 6, 2012, performing routine monthly
maintenance on the elevator. Boyd determined that the elevator was
running properly after performing the monthly maintenance.
On July 20, 2012, Unit 9 misleveled and began oscillating, causing
plaintiff to trip and fall into it, sustaining injuries. Thirty minutes after
plaintiff’s incident, Boyd arrived at the site, observed the oscillation,
took Unit 9 out of service, and requested that KONE send a service
team to investigate the problem. On July 23, 2012, Boyd, along with a
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City of Detroit Elevator Inspector, returned to investigate the unit
further. The City Inspector witnessed the oscillation, and ordered Unit
9 removed from service pending repairs and re-inspection.
On August 8 and 9, 2012, KONE mechanics Todd Parker and
Mark Smith went to Cadillac Place to diagnose and repair Unit 9.
Parker, assisted by Smith, used a tool called a “mag probe” not
routinely carried by route mechanics such as Boyd, to discover that the
oscillation was caused by residual magnetism between the two iron
brake cores in the Unit 9 brake.1

As set forth in KONE’s motion for summary judgment (Dkt. 32, at 6-7)
the Unit 9 brake functions by using magnetism to release the brake.
The brake in Unit 9 is always set whenever the elevator is not in use.
When the elevator moves, the brake coil energizes the iron brake cores,
creating a magnetic field that brings and holds the cores together.
When the elevator reaches its destination and needs to stop, the coil is
de-energized, separating the cores and setting them into place. A
counterweight drops as the brake sets, which keeps the elevator
balanced.
1

In this case, the cores were getting too close together when the coil
energized. Because the cores were too close together, the magnetic field
lingered longer than it should have. The residual magnetism delayed
the setting of the brake, which delayed the dropping of the
counterweight. Because the counterweight dropped too late, the
elevator misleveled, raising it two inches higher than it should have
been. The elevator attempted to correct the misleveling, but in doing so
reset the brake, which caused the counterweight to drop late again,
3

Parker and Smith fixed the Unit 9 brake by disassembling it
entirely, replacing the shim between the brake cores, adjusting the
brake coil, and reassembling the brake over a period of two days. The
City Inspector re-inspected Unit 9, and returned it to service on August
17, 2012.
B. Plaintiff’s Expert, C. Stephen Carr, Ph.D.2
C. Stephen Carr holds a Ph.D. in mechanical engineering. He is a
practicing engineer and engineering manager. He is a member of the
National Association of Elevator Safety Authorities, the National
Association of Elevator Contractors, the International Association of
Elevator Consultants, the American Society of Mechanical Engineers
and various Code Writing Subcommittees of ASME, and the National
Interest Review Group.

Dr. Carr focuses his work on the forensic

investigation of vertical transportation accidents, and has worked in
forty-five states, Puerto Rico, the District of Columbia, and Alberta,

thereby pulling the elevator up two inches. This pattern would repeat
as long as the elevator was running. 
2 Although both parties provided Dr. Carr’s report, neither party
provided Dr. Carr’s curriculum vitae or other background materials. As
such, the Court will provide his background as thoroughly as possible
from what is set forth in the briefs.
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Canada in the past decade. He has served or is serving as an expert
witness in over 420 cases.
Plaintiff retained Dr. Carr to offer expert testimony in this
litigation.

On November 21, 2013, Dr. Carr prepared an eight-page

report containing eight substantive paragraphs laying out his opinions
related to KONE’s liability. It states in relevant part:
23. My investigation is ongoing. I need maintenance records
for the elevators in the bank including elevator #9 to proceed
further. I have not visited the site nor inspected, measured
and tested the equipment nor read the reports of the Defense
Expert(s). Therefore, I reserve the right to supplement this
Report as more information becomes known. However,
based upon the information that I have been provided thus
far and my experience in this field and a reasonable degree
of engineering certainty, I render the following findings.
24. It may be inferred that the harm suffered by Marcia
Valentine because of the events that happened that day do
not normally occur but for negligence of the Defendants.
25. Clearly the Plaintiff, Marcia Valentine, played no role in
causing the elevator malfunction that she experienced. Kone
and the building owner had exclusive control of the
equipment that caused her harm.
26. Of course a properly working elevator does not operate
the way elevator #9 did at the Cadillac Place Building on 20
July 2012 but for the negligence of the Defendants. The
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rapid floor movements, up and down, were the result of the
age of the equipment and its need for maintenance.
27. In most states, the owner/operator of vertical
transportation equipment is considered a Common Carrier
and held to a higher standard of care, a non-delegable duty.
Given these common carriers requirements, it is reasonable
to conclude that the preventive maintenance program of
Kone was insufficient to meet their obligation.
28. The Standard of Care in the elevator industry is to do
what a prudent maintenance organization would do to keep
the equipment running safely and protect the public. Older
equipment must be maintained to operate like new with few
if any callbacks.
29. All these Defendants had a duty to the public including
Marcia Valentine to provide safe elevator service. The
defendants clearly breached that duty. Their breach was the
proximate cause of the incident that resulted in the injury of
the plaintiff.
30. There are approximately 1,000,000 working elevators in
this country and 99.97 percent of them simply do not
function as elevator #9 at the Cadillac Place Building did in
July of 2012. The defendants should have recognized this.
(Dkt. 31-2 at 11-12.)
In preparing his report, Dr. Carr reviewed KONE’s incident
report, the documents the City of Detroit generated following its
inspection, and the deposition transcripts of KONE employees Boyd,
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Parker, and Smith. He also reviewed two professional publications and
the KONE Maintenance Manual. According to his report, Dr. Carr did
not review any further maintenance records or inspect the elevator
itself.
II.

Standard of Review
The admissibility of expert reports and testimony is governed by

Fed. R. Evid. 702, which 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 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.
District courts must ensure “that an expert's testimony both rests
on a reliable foundation and is relevant to the task at hand.” Daubert v.
Merrell Dow Pharm., Inc., 509 U.S. 579, 580 (1993). The requirements
of Rule 702 and Daubert cover all forms of knowledge referenced in Rule
702: scientific, technical, and other specialized knowledge. Kumho Tire
Co. v. Carmichael, 526 U.S. 137, 152 (1999). When evaluating expert
testimony, “[t]he focus . . . must be solely on principles and
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methodology, not on the conclusions that they generate.” Daubert, 509
U.S. at 595.
Summary judgment is proper where “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). The Court may
not grant summary judgment if “the evidence is such that a reasonable
jury could return a verdict for the nonmoving party.”

Anderson v.

Liberty Lobby, Inc., 477 U.S. 242, 248. The Court “views the evidence,
all facts, and any inferences that may be drawn from the facts in the
light most favorable to the nonmoving party.” Pure Tech Sys., Inc. v.
Mt. Hawley Ins. Co., 95 F. App'x 132, 135 (6th Cir. 2004) (citing
Skousen v. Brighton High Sch., 305 F.3d 520, 526 (6th Cir.2002)).
III.

Analysis

The Court will first address KONE’s motion to exclude Dr. Carr’s
report, opinions, and testimony, and then its motion for summary
judgment.
A. Dr. Carr’s Report, Opinions, and Testimony Do Not Meet the
Standards of Fed. R. Evid. 702
Dr. Carr, in addition to the written report quoted above,
elaborated on his theory of KONE’s liability at deposition on May 1,
8

2014. Dr. Carr is of the belief that brakes like the one at issue should
be visually inspected once every two years, although he cited to no
supporting manual, publication, or customary practice in support of
that belief. (Carr. Dep. 54:18-25, 58:3-23.) After repeated questioning,
Dr. Carr could provide no basis for this inspection standard, and
instead seemed to reframe it as KONE’s obligation to perform the
inspection, regardless of when or if it had been done within the two-year
timeframe by the prior contractor. (See, e.g., id. at 60:13-25, 61:1-17.)
Dr. Carr was not aware if such an inspection had been done, because he
had no records from KONE’s predecessor, Otis. (Id. at 55:1-6.) Dr.
Carr’s theory of liability, therefore, is fundamentally premised on
KONE having failed to perform an inspection on a timetable of Dr.
Carr’s own creation. Even if he had a basis for this timetable, Dr. Carr
could not reliably conclude that the inspection needed to be performed
during the time KONE was the maintenance and service operator for
Unit 9 prior to plaintiff’s fall.
As a threshold matter, an expert witness must possess “scientific,
technical, or other specialized knowledge [that] will assist the trier of
fact to understand the evidence or to determine a fact in issue.” Fed. R.
9

Evid. 702. “Knowledge” under Rule 702 requires “more than subjective
belief or unsupported speculation.” Daubert, 509 U.S. at 590.

An

expert must “employ[] 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.
It is proper to exclude testimony where an opinion is too
speculative, or is simply a hypothesis presented in the guise of
knowledge. See Tamraz v. Lincoln Elec. Co., 620 F.3d 665, 670 (6th Cir.
2010) (rejecting expert testimony under Rule 702 where an expert’s
theory was hypothetical and unsupported by factual or scientific
evidence). “Nothing in either Daubert or the Federal Rules of Evidence
requires a district court to admit opinion evidence which is connected to
existing data only by the ipse dixit of the expert.” GE v. Joiner, 522
U.S. 136, 146 (1997) (citing Turpin v. Merrell Dow Pharm., Inc., 959
F.2d 1349, 1360 (6th Cir. 1992)).
Dr. Carr’s report begs the question of KONE’s liability.

It

assumes that, because a mishap occurred, the mishap is, by necessity,
the result of KONE’s negligence. The report, however, never states the
factual, scientific, or technical basis for a determination of negligence
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other than Dr. Carr’s apparent belief that a maintenance and service
operator is per se negligent when a mishap occurs. Dr. Carr’s deposition
testimony elaborates slightly on the basis for KONE’s negligence, but
provides no real factual basis for his opinion.3
It is undisputed that Unit 9 malfunctioned because of an issue
with residual magnetism in the brake cores. Dr. Carr’s opinion that the
issue occurred because of KONE’s negligence, however, is no more than
speculation. There is no factual basis for Dr. Carr’s proposed two-year
brake core inspection schedule, and even if there were, there is no
evidence that such an inspection was not completed. There is no factual
basis for Dr. Carr’s belief that KONE should have inspected the brake
in the two-and-a-half months it was maintaining and servicing the
Cadillac Place Building elevators, particularly as Dr. Carr did not
review the relevant inspection records. Dr. Carr’s theory lacks support
in the record, and would require a finder of fact to simply accept his

to Fed. R. Civ. P. 26(a)(2)(B)(i), an expert report must include
“a complete statement of all opinions the witness will express and the
basis and reasons for them.” See Brainard v. Am. Skandia Life Assur.
Corp., 432 F.3d 655, 664 (6th Cir. 2005). Here, Dr. Carr appears to
supplement his report by providing additional theories of liability at his
deposition. Out of an abundance of caution, the Court will address
those issues despite the fact that they are not set forth in his report.  
3

 Pursuant

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conclusion that KONE was negligent, based on no supporting
knowledge for that conclusion.
The Court has no doubt that Dr. Carr generally possesses a great
deal of knowledge about elevator incidents. In this matter, though, Dr.
Carr’s report, testimony, and opinions lack a reasonable basis in fact.
Accordingly, the Court will grant the motion to exclude Dr. Carr’s
report, testimony, and opinions, and will consider the motion for
summary judgment without them.
B. Summary Judgment Is Warranted
To prove negligence under Michigan law, a plaintiff must show a
duty, a breach of that duty, cause-in-fact and proximate causation, and
damage.

Romain v. Frankenmuth Mut. Ins. Co., 483 Mich. 18, 21

(2009). “[U]nder Michigan law, a legal duty is a threshold requirement
before there can be any consideration of whether a person was negligent
by breaching that duty and causing injury to another.” Riddle v.
McLouth Steel Prods. Corp., 440 Mich. 85, 99 (1992).
KONE argues that its only duty was to the State of Michigan, the
owner of Cadillac Place, with whom KONE had its maintenance and
repair contract.

The Michigan Supreme Court has stated that “the
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threshold question is whether the defendant owed a duty to the plaintiff
that is separate and distinct from the defendant’s contractual
obligations. If no independent duty exists, no tort action based on a
contract will lie.” Fultz v. Union-Commerce Assocs., 470 Mich. 460, 467
(2004).

The question is thus “whether, aside from the contract, the

defendant owed any independent legal duty to the plaintiff.” Loweke v.
Ann Arbor Ceiling & Partition Co., L.L.C., 489 Mich. 157, 171 (2011).
The Court in Loweke, clarifying Fultz, stated that “[u]nder Fultz, a
contracting party’s assumption of contractual obligations does not
extinguish or limit separate, preexisting common law or statutory tort
duties owed to noncontracting third parties in the performance of a
contract.” Loweke, 489 Mich. at 172.
Plaintiff argues that KONE breached a duty of due care owed to
her. Under Loweke, a separate legal duty could arise from, among other
sources, the “generally recognized common-law duty to use due care in
undertakings.” Id. at 170. Further relying on Clark v. Dalman, 379
Mich. 251 (1967) and Laier v. Kitchen, 266 Mich. App. 482 (2005),
plaintiff argues that KONE had a duty to “use due care or to act so as

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not to unreasonably endanger the person or property of another.”
Clark, 379 Mich. at 261.
Although unclearly pled, the scope of KONE’s alleged duty
appears to have been the requirement to inspect the elevator brakes.
Relying on the report of KONE’s expert, Jon B. Halpern, P.E., plaintiff
argues that the inspection should be performed annually. (Dkt. 36-6, at
5 (“Kone Inc. had no notice of any problem that gave it any indication
that the brake was faulty and required a repair and the brake module
should have been performed earlier than when normally scheduled on
an annual basis.”).)
Plaintiff then states, unsupported by the record, that KONE
should have performed this annual brake inspection in the two-and-ahalf months it was performing elevator maintenance and repair, but did
not. Plaintiff asserts, also without supporting evidence, that KONE
failed to review prior maintenance records and instead restarted the
maintenance calendar, thereby pushing off the dates for routine
maintenance and inspection.
First, the Halpern statement indicates not that KONE missed or
forgot to schedule its brake inspection, but that such an inspection was
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“normally scheduled on an annual basis,” and the time for that repair
had not yet come.

(Dkt. 36-6, at 5.)

Other than the excluded

assumptions of her expert, Dr. Carr, plaintiff raises no genuine issue of
material fact as to whether KONE failed to perform the scheduled
brake inspection in a timely fashion.
Second, plaintiff’s argument may be barred by law.

KONE’s

responsibility to inspect, maintain, and repair the elevator was
governed by its contract with the State of Michigan.

The Court’s

directive in a case such as this “is to determine whether a defendant
owes a noncontracting, third-party plaintiff a legal duty apart from the
defendant’s contractual obligations to another.” Loweke, 489 Mich. at
169 (emphasis added). An independent legal duty outside of a contract
arises when, through performance of contractual duties, “a duty . . .
arise[s] to perform the act in a nonnegligent manner.” Fultz, 470 Mich.
at 465.

Where the party under contract simply fails to perform its

contractual obligations, as plaintiff argues Kone did here, that failure
“create[s] no new hazard to plaintiff.” Id. at 469. At best, plaintiff

15

appears to allege a breach of contract, rather than a violation of an
independent duty outside of the contract.4
Ultimately, plaintiff’s argument fails because, even were the
Court to assume that KONE had a duty to plaintiff, there is no question
of material fact as to whether KONE violated any such duty. Plaintiff’s
expert’s testimony is inadmissible, and the facts otherwise presented
amount to little more than a conclusory supposition that KONE must
have breached a duty, with no facts establishing the nature of the
breach.

Accordingly, the Court must grant summary judgment and

dismiss plaintiff’s complaint against KONE.

Plaintiff’s briefing can also be read to argue that KONE had a
separate duty to either redo all maintenance, whether scheduled or not,
immediately after beginning its performance under the contract, or to
review prior maintenance records and correct all oversights by Otis. If
this is plaintiff’s argument, she failed to provide evidence to support it.
The former argument amounts to plaintiff attempting to add terms to
KONE’s contract that are not there. With respect to the latter
argument, even if plaintiff could have or should have reviewed prior
maintenance records, plaintiff did not present any evidence to suggest
that KONE did not undertake such a review upon entering into the
contract with the State of Michigan.

4

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IV.

Conclusion

For the above stated reasons, it is hereby ordered that:
Defendant KONE, Inc.’s motions to exclude the expert reports,
opinions, and testimony of Dr. C. Stephen Carr (Dkt. 31) is GRANTED;
Defendant KONE, Inc.’s motion for summary judgment is
GRANTED; and
Plaintiff’s complaint is DISMISSED.
IT IS SO ORDERED.

Dated: September 30, 2014
Ann Arbor, Michigan

s/Judith E. Levy
JUDITH E. LEVY
United States District Judge

CERTIFICATE OF SERVICE
The undersigned certifies that the foregoing document was served
upon counsel of record and any unrepresented parties via the Court’s
ECF System to their respective email or First Class U.S. mail addresses
disclosed on the Notice of Electronic Filing on September 30, 2014.

s/Felicia M. Moses
FELICIA M. MOSES
Case Manager

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