Burdess et al v. Cottrell, Inc.

Filing 166

MEMORANDUM AND ORDER: IT IS HEREBY ORDERED that Defendant Cottrell's motion for summary judgment is DENIED. (Doc. 133 ). Signed by District Judge John A. Ross on 7/10/23. (JAB)

Case: 4:17-cv-01515-JAR Doc. #: 166 Filed: 07/10/23 Page: 1 of 11 PageID #: 26521

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
GREGORY L. BURDESS and
LISA BURDESS,
Plaintiffs,
v.
COTTRELL, INC.,
Defendant.

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Case No. 4:17-CV-01515-JAR

MEMORANDUM AND ORDER
This matter is before the Court on Defendant’s motion for summary judgment in this
product liability case. For the reasons discussed below, the motion will be denied.
I.

BACKGROUND
Plaintiff Gregory Burdess worked as a car hauler for 25 years, loading cars on trailers and

transporting them throughout the country. Defendant Cottrell designs and manufactures the trailer
at issue in this case. To secure cars on a trailer, Burdess operated a chain and ratchet winch system
on the trailer requiring him to reach overhead and pull down a tie bar using significant force.
Burdess performed this forceful overhead pull-down motion repetitively throughout his
employment.
On April 5, 2013, at age 54, while traveling in Illinois on a job, Burdess woke up unable
to move his arms due to numbness. He sought medical treatment and was diagnosed with
bilateral rotator cuff impingement and bilateral carpal and cubital tunnel syndrome. After
conservative treatment proved ineffectual, Burdess underwent multiple surgeries to both upper
extremities. Burdess’s treating physicians noted some degenerative changes but opined that his
work was the prevailing factor in his injuries, with the overhead motion particularly affecting
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his shoulders.
In June 2013, Burdess filed a claim against his employer for workers’ compensation.
That case was later resolved through settlement. In May 2017, Burdess and his wife filed the
present personal injury lawsuit alleging that Cottrell’s chain and ratchet system was the cause
of his injuries. Plaintiffs assert claims on theories of strict liability (i.e., defective design) (Count
I), negligence (Count II), breach of implied warranty (Count III), and loss of consortium (Count
IV). They also seek punitive damages for Cottrell’s alleged disregard for employee safety in
pursuit of profits (Count V).
Cottrell now moves for summary judgment on numerous grounds. The facts in the record
are summarized below as relevant to each theory.
II.

LEGAL STANDARDS
Summary judgment is proper when “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). Material facts are those “that might affect the outcome of the suit under the governing law,”
and a genuine material fact is one such that “a reasonable jury could return a verdict for the
nonmoving party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). The burden of
demonstrating there are no genuine issues of material fact rests on the moving party, and the Court
considers the evidence and reasonable inferences in the light most favorable to the nonmoving
party. Allard v. Baldwin, 779 F.3d 768, 771 (8th Cir. 2015). To avoid summary judgment, the
nonmovant must present evidence sufficiently supporting the disputed material facts such that a
reasonable jury could return a verdict in their favor. Gregory v. City of Rogers, Ark., 974 F.2d
1006, 1010 (8th Cir. 1992). Where the record as a whole could not lead a rational trier of fact to
find for the non-moving party, there is no genuine issue for trial. Matsushita Elec. Indus. Co. v.

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Zenith Radio Corp., 475 U.S. 574, 587 (1986). “Credibility determinations, the weighing of the
evidence, and the drawing of legitimate inferences from the facts are jury functions, not those of a
judge.” Combs v. Cordish Cos., 862 F.3d 671, 680 (8th Cir. 2017).
III.

DISCUSSION
a. Product Identification
First, Cottrell asserts that Burdess cannot identify the specific product that allegedly caused

his injuries. When asked in discovery to identify which Cottrell trailers he used, Burdess referred
Cottrell to his employer, but the summary judgment record does not contain any business records
from Burdess’s employer submitted by either party. In his deposition, Burdess testified that he
worked on Delavan rigs from 1988 until the late 1990s. Beginning around 2001, he worked on
five or six different Cottrell rigs, all having quick-release ratchets with the same tie-down process.
(Doc. 134-1 at 43, 48, 159). Burdess’s expert witness, Dr. Gerald Micklow, explained that all
ratchet systems require excessive force levels, though the quick-release system facilitates untying.
(Doc. 134-2 at 6). Burdess could not identify the specific truck or trailer number of the rig he was
driving in April 2013, but he knew that it was a Sterling flat top Cottrell trailer, which was his bid
truck at the time. (Doc. 134-1 at 81). When shown his injury report, Burdess identified truck
number 1295 and trailer number 1296 as the rig he was operating then. (Id. at 153). Cottrell’s
corporate representative, Melanie Stone, identified two rigs known to be driven by Burdess,
including the one identified in the accident report, and both being 2004 CS-12-M3 rigs with the
same chain and ratchet tie-down system. (Doc. 154-14 at 5).
Cottrell moves for summary judgment asserting that Burdess has failed to identify the
specific rigs he used over his career, including all manufacturers, models, designs, and conditions.
In support of its position, Cottrell relies on City of St. Louis v. Benjamin Moore & Co., 226 S.W.3d

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110 (Mo. 2007), where the city sued several paint manufacturers to recover the cost of lead
abatement projects in residential housing. The city could not specifically identify the manufacturer
of the paint abated from the subject properties but sought to establish liability based on the
defendants’ respective market shares. The Missouri Supreme Court affirmed summary judgment
for the defendants reasoning that, absent product identification evidence, the city could not prove
actual causation. Id. at 115-16. See also Zafft v. Eli Lilly & Co., 676 S.W.2d 241 (Mo. 1984)
(affirming summary judgment where the plaintiffs could not identify which pharmaceutical
manufacturer produced the generic drug they each ingested).
Applying these cases to the present facts, Cottrell argues that Burdess’s claims should fail
in similar fashion because Burdess drove Delavan rigs without quick release systems from 1988
to 2001, and neither Burdess nor his experts could identify which specific Cottrell products
allegedly caused his injuries. The Court does not subscribe to this analogy. Unlike in Benjamin
Moore and Zafft, where the plaintiffs could not identify which manufacturer’s product was
ingested at a particular site or by a particular patient, here, the record reflects that Burdess drove
only Cottrell rigs, all with the same ratchet system, in the twelve years leading up to his repetitive
trauma injuries. Nothing in the record refutes this. While Burdess injury report and his employer’s
fleet records are inexplicably absent from the summary judgment record, it would appear from the
deposition testimony that such evidence exists. Most notably, Burdess and Ms. Stone relied on
injury or accident reports to identify trailer number 1296 and rig model 2004-12-M3 corresponding
to the relevant period.
Viewing the record in the light most favorable to Burdess, the Court finds the evidence
sufficient to give rise to a triable question of fact as to the source of his injuries.

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b. Defective Design
Under Missouri law, a plaintiff asserting a claim for strict liability must show that the
product was unreasonably dangerous when put to reasonably anticipated use without knowledge
of its characteristics. Mo. Rev. Stat. § 537.760(3)(b). Cottrell argues that Burdess advances an
unavailing theory of “categorical liability” by characterizing all ratchet systems as defective, as
Dr. Micklow opined. Cottrell relies on Linegar v. Armour of Am., Inc., 909 F.2d 1150 (8th Cir.
1990), where the Eighth Circuit held as a matter of law that an armored vest was not defective or
unreasonably dangerous simply because it did not cover more of the body; rather, the product’s
limitations were “open and obvious.” Id. at 1154. See also Richardson v. Holland, 741 S.W.2d
751, 754 (Mo.App. S.D. 1987) (affirming dismissal in favor of a gun manufacturer).
But these cases involving inherent risks of sudden fatal injury, at times from criminal
conduct, are plainly inapposite. This case involves a mechanical winch system that requires
repetitive strenuous exertion. While the demands of the job may have been readily apparent to
any user, it is not the role of this Court to conclude as a matter of law that the risks of cumulative
injury were open and obvious. The question whether a product is unreasonably dangerous must
be decided by the jury, applying their collective intelligence and experience to the facts and
circumstances of the case. Lachance v. Am. Home Products Corp., 2006 WL 89850, at *5 (W.D.
Mo. Jan. 13, 2006) (citing Nesselrode v. Executive Beechcraft, Inc., 707 S.W.2d 371, 378 (Mo.
1986)).
Cottrell further suggests that Cottrell’s ratchet system could not be deemed unreasonably
dangerous because Burdess’s labor union endorsed the use of quick-release ratchets in its
collective bargaining agreement. (Doc. 133-7 at 10). This theory has been rejected on numerous
occasions; the Court need not revisit it. See e.g., Taylor v. Cottrell, 995 F. Supp. 2d 1052, 1056

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(E.D. Mo. 2014) (denying summary judgment based on preemption under the Labor Management
Relations Act, reasoning that the CBA between plaintiff’s union and employer did not define the
standard of care or Cottrell’s state law duty to provide safe products); Stanley v. Cottrell, Inc.,
2013 WL 466262, at *4 (E.D. Mo. Feb. 7, 2013) (same); Miller v. Cottrell, Inc., 2015 WL 4644346,
at *2 (E.D. Mo. Aug. 4, 2015) (granting remand because the plaintiff’s claim did not depend on
any interpretation of the CBA); Hale v. Cottrell, Inc., 2012 WL 13028556, at *3 (W.D. Mo. Apr.
17, 2012) (same); Johnson v. Auto Handling Corp., 857 F. Supp. 2d 848, 851 (E.D. Mo. 2012)
(same).
Viewing the record in the light most favorable to Burdess, the Court finds the evidence
sufficient to give rise to a jury question as to defective design.
c. Medical Causation
Next, Cottrell contends that the record lacks evidence that its product caused Burdess’s
repetitive trauma injuries. Burdess’s orthopedic surgeon, Dr. Mitchell Rotman, opined that
Burdess’s conditions were caused by his use of the ratchet system on his trailer. (Doc. 141-6 at 8,
10-11). Another orthopedic specialist, Dr. James Emanual, explained that carpel tunnel syndrome
is related to power gripping, lifting, pushing, and pulling. (Doc. 139-1 at 3). He confirmed that
Burdess’s shoulder condition was related to overhead work, including pulling down the tie-down
bar. (Id. at 6, 8). He stated that trigger finger is typically seen in patients who do power gripping
and repetitive work with the hands and wrists. (Id. at 9). His impression from Burdess was that
operating the tie-down bar particularly bothered his shoulders. (Id. at 14). Emanuel added that the
gripping and forceful flexing and extending of the elbow required in the maneuver could also
contribute to carpal and cubital tunnel syndrome. (Id.).
Both Rotman and Emanuel conceded that they had no specific knowledge about Cottrell’s

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or any other manufacturer’s ratchet system. Rotman assumed they were similar with respect to
overhead work. (Doc. 141-6 at 17). Emanuel clarified that one mechanism over another would
not make a difference; rather, it is the actual force and repetitive nature of the task that causes the
injury. (Doc. 139-1 at 18). Cottrell thus argues that the record lacks the requisite expert testimony
establishing medical causation because Burdess’s physicians could not attribute his injuries to its
specific product. In support of its position, Cottrell cites several railroad worker injury cases
brought under the Federal Employers’ Liability Act instructing that expert testimony is necessary
to establish causation where the injury is alleged to be a result of cumulative trauma from repetitive
work. See e.g., Ackman v. Union Pac. R.R. Co., 556 S.W.3d 80, 85 (Mo. App. E.D. 2018)
(affirming summary judgment where medical records did not attribute plaintiff’s back problems
to his work); Payton v. Union Pac. R. Co., 405 S.W.3d 1, 6 (Mo. App. E.D. 2013) (affirming
directed verdict where no expert identified loose cab seats violating safety regulations as the cause
of plaintiff’s degenerative disk disease).
But these cases only confirm the impropriety of summary judgment here. In contrast to
Ackman and Payton, Dr. Emanuel specifically attributed Burdess’s shoulder problems to his
overhead work and further opined that the hand gripping and elbow flexing and extending required
to operate the ratchet could contribute to carpal and cubital tunnel syndrome. (Doc. 139-1 at 14).
Dr. Rotman opined that Burdess’s problems were caused by his use of the chain and ratchet system
on his trailer. (Doc. 141-6 at 8, 10-11). Dr. Micklow opined that Cottrell’s ratchet system is
defective in design because it requires the operator to us excessive levels of overhead pull-down
force. Cottrell’s suggestion that unretained physicians must identify the make and model of a
patient’s work implement in order to opine on the cause of his injuries is not reasonable. Even the
fact that Dr. Micklow could not identify Cottrell’s product as the particular ratchet on Burdess’s

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rig, aside from Burdess’s own account, does not entitle Cottrell to summary judgment. Cottrell’s
argument only underscores the existence of genuine issues of material fact to be resolved by a jury
as to whether Burdess sustained repetitive trauma injuries as a result of exertions required to
operate a Cottrell ratchet system. Indeed, the Eighth Circuit opined as much in this very case.
“There are certainly facts … that suggest that a causal connection between Burdess’s bilateral
shoulder impingement and his use of Cottrell’s tie-down ratchet system was capable of
ascertainment prior to [his diagnosis].” Burdess v. Cottrell, Inc., 53 F.4th 442, 451 (8th Cir. 2022).
Viewing the record in the light most favorable to Burdess, the Court finds the evidence
sufficient to raise a jury question on medical causation.
d. Failure to Warn
Missouri law applies a two-pronged causation test to failure to warn claims. Miller v.
Cottrell, Inc., 2007 WL 3376731, at *5 (W.D. Mo. Nov. 8, 2007) (citing Mothershead v.
Greenbriar Country Club, Inc., 994 S.W.2d 80, 89 (Mo. App. E.D. 1999)). The first prong requires
proof of a proximate causal link between the plaintiff’s injury and the product allegedly lacking a
warning. The second prong requires the plaintiff to show that a warning would have altered his
behavior. Id. If a jury could find that the plaintiff did not already know of the danger, it is presumed
that a warning would have been heeded. Moore v. Ford Motor Co., 332 S.W.3d 749, 762 (Mo.
2011); Miller, 2007 WL 3376731, at *5.
Cottrell moves for summary judgment on Burdess’s failure-to-warn claim arguing that the
record lacks evidence supporting the second prong. Specifically, in his deposition, Burdess said
he had never seen or read any operator’s manual or warning labels on his rigs, and he was not
aware of any warning that would have prevented his injury. (Doc. 145-2 at 29-30, 32). Cottrell
submits that these statements preclude a finding that a warning may have altered Burdess’s

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behavior. But the Court cannot make that conclusion as a matter of law. A jury could reasonably
infer that Burdess was simply unaware of any warnings about the ratchet, or that he believed that
no warning could have prevented his injury given the nature of the work. It is not the role of this
Court to speculate whether and how Burdess might have heeded a warning had he seen one. These
are questions for a jury to resolve. Moore, 332 S.W.3d at 763 (reversing directed verdict and
noting that whether a plaintiff would have heeded a warning is a credibility determination for the
jury).
In its reply brief, Cottrell raises the new argument that Burdess cannot establish what
warnings were provided because he has not identified which rigs he operated during the relevant
period. A party cannot raise a new issue in a reply brief because it deprives the opposing party an
opportunity to respond. Walker v. Kemper, 2005 WL 8169209, at *16 n.8 (E.D. Mo. May 31,
2005). Moreover, Cottrell bears the burden of showing the absence of disputed facts, and the Court
must view the record in the light most favorable to Burdess and resolve any conflict against the
movant. Mindful of these standards and given the minimal record on this issue, the Court does not
decide it as a matter of law and defers to the jury to weigh the evidence presented at trial.
Viewing the evidence and reasonable inferences in the light most favorable to Burdess,
Cottrell cannot carry its burden to demonstrate that there are no genuine issues of material fact in
dispute on this issue.
e. Implied Warranty
In Missouri, there are three theories of recovery available to a plaintiff in a products liability
case: strict liability, negligence, and breach of warranty. Becker v. Ford Motor Co., 2010 WL
11582979, at *3 (E.D. Mo. Sept. 24, 2010). To recover on a claim of breach of implied warranty,
a plaintiff must demonstrate (1) that defendant sold goods which were not “merchantable” at the

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time of sale; (2) that an injury resulted that was proximately caused by the defective nature of the
goods; and (3) notice to the seller. Id.
Cottrell asserts that Burdess’s alternate claim for breach of implied warranty is time-barred
under Missouri’s four-year statute of limitations on contracts for sale. Mo. Rev. Stat. § 400.2725(2). Burdess correctly responds that Missouri’s five-year statute of limitations for personal
injury actions applies here. Mo. Rev. Stat. § 516.120. Chole v. Boston Sci. Corp., 2020 WL
1853266, at *2 (E.D. Mo. Apr. 13, 2020) (citing Witherspoon v. General Motors Corp., 535 F.
Supp. 432, 434 (W.D. Mo. 1982)). See also Hollifield v. Ford Motor Co., 2007 WL 9718133, at
*3 (W.D. Mo. May 1, 2007) (noting that a breach of warranty claim requests relief on a products
liability theory). Cottrell’s attempt to characterize this issue as unsettled is unavailing.
Cottrell also asserts that any implied warranties were disclaimed. But the record lacks
sufficient evidence for the Court to make that determination as a matter of law. With respect to
the prima facie elements of Burdess’s warranty claim, the record does present factual disputes as
to whether Cottrell’s product was merchantable and whether it proximately cause Burdess’s
injuries. As such, summary judgment is not warranted.
IV.

CONCLUSION
Summary judgment is proper when 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. The record in this
case presents numerous factual disputes to be resolved by a jury.

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Accordingly,
IT IS HEREBY ORDERED that Defendant Cottrell’s motion for summary judgment is
DENIED. (Doc. 133).

Dated this 10th day of July, 2023.

________________________________
JOHN A. ROSS
UNITED STATES DISTRICT JUDGE

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