Nationwide Agribusiness Insurance Company et al v. Meller Anlagenbau GMBH

Filing 96

ORDER signed by Judge Rudolph T. Randa on 3/5/2015. 71 Defendants' MOTION in Limine to Exclude Opinions and Testimony of Michael Wright DENIED; 73 Defendants' MOTION for Summary Judgment GRANTED-IN-PART and DENIED-IN-PART. Telephonic Scheduling Conference set for 3/31/2015 at 9:30 AM Central Time before Judge Rudolph T. Randa, the Court will initiate the call. (cc: all counsel)(cb)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN
NATIONWIDE AGRIBUSINESS
INSURANCE COMPANY,
Plaintiff,
FRANSISCO ALCALA,
Involuntary Plaintiff,
-vs-

Case No. 12-C-1227

MELLER POULTRY EQUIPMENT, Inc., and
MELLER ANLAGENBAU GMBH,
Defendants.
DECISION AND ORDER
Fransisco Alcala fell from a catwalk in a chicken coop at the Cold
Spring Egg Farm facility in Palmyra, Wisconsin, sustaining serious
injuries. Alcala and Cold Spring’s workers’ compensation provider,
Nationwide Agribusiness Insurance Company, seek recovery from Meller
Anlagenbau GmbH, the company that manufactured and installed the
chicken coop. Plaintiffs bring claims for strict liability, negligence, and
breach of the implied warranties of workmanship, merchantability, and
fitness for a particular purpose.
Meller moves for summary judgment and to exclude the expert

opinions and testimony of Michael Wright, a civil engineer who opined that
the catwalk was defective. Wright’s testimony meets the threshold
requirements of relevance and reliability under Daubert v. Merrell Dow
Pharm., Inc., 509 U.S. 579, 589 (1993). Therefore, Meller is not entitled to
summary judgment on plaintiffs’ negligence and strict liability claims.
However, Meller’s motion is granted with respect to the warranty claims.
BACKGROUND
Meller is a German corporation that has been making chicken coops
for over 30 years. In 2004, S&R Egg Farm, Inc. or Cold Spring Egg Farms,
Inc. (S&R, collectively) purchased chicken coops from Meller. S&R
purchased the chicken coops for a new barn being built at the Cold Spring
facility in Palmyra known as Barn 10. Meller did not construct the building
for Barn 10 (it was built by a non-party, Henning Construction).
The chicken coops installed in Barn 10 consist of 10 modules of
chicken cages (11 aisles), each comprised of eight tiers of chicken cages.
Additionally, in each aisle, a catwalk is installed between the fourth and
fifth tiers of cages, resulting in a two-story chicken coop.
Meller’s catwalks are made of metal. Metal gratings are placed
inside and between two metal “angles” (L-shaped brackets or channels)
that are secured by bolts on the horizontal flanges of the angles to supports
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connected to the caging modules on either side of the aisle.
Alcala was employed as a barn worker at the Cold Springs farm.
Alcala was responsible for cleaning barns and taking care of the birds.
Alcala weighed at least 320 pounds at the time of his accident, placing him
in the 97th percentile of workers.1 Alcala usually did not work in Barn 10,
but on May 8, 2011, the day of the accident, Alcala and about 20 of his
coworkers were asked to report to Barn 10.
S&R was putting the birds in Barn 10 through a “molting” phase by,
among other things, restricting the birds’ diets. While molting, the birds
cease egg production and begin shedding feathers. S&R molts its birds to
extend the “productive” egg laying life of the birds. Molting is illegal in
Germany and in Europe, where Meller is located, because it violates
animal protection laws.
As the birds lose their feathers, the feathers collect in a feed belt
that runs along the cages. S&R requires its barn workers to manually
remove the feathers from a feed belt using their hands. S&R has no written
policies or procedures regarding this practice. To perform this task, the
barn workers were positioned at either end of the aisles in Barn 10. Barn

Alcala’s weight was recorded as 250 pounds by the hospital on the day of the
accident. This factual dispute is irrelevant to the Court’s analysis herein.
1

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10 has 11 aisles, so there were approximately 22 barn workers in Barn 10
on the day of Alcala’s accident. Although there were eight tiers of cages
(four on the ground floor and four on the second-story), the barn workers
could only pick feathers from the feed belts of two tiers at a time. They
started at the top and worked their way down. They changed positions to
the next lower two tiers about every 20 to 30 minutes. This process, which
occurs daily over a period of several weeks, takes about two-and-a-half
hours to complete.
In order to be more comfortable, the barn workers sometimes placed
wooden boards across the aisles so they could sit on this platform while
cleaning feathers. When removing feathers from the top two feed belts, the
barn workers placed the board at the level of the second-highest highest
tier, which Alcala said was at least chest-high. S&R’s barn workers have
been doing this since at least 1994, and S&R’s management and ownership
was aware of the practice.
Alcala walked to the rear of Barn 10, grabbed a board, and went to
aisle number five. He placed the board crosswise in the aisle, resting it on
the cages, at the third or fourth tier up, i.e., the top two tiers, either chesthigh or head-high. Alcala then climbed up the side of the chicken cages and
transferred himself to a sitting position on the board. After cleaning
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feathers from the top two tiers for about 20 or 30 minutes, Alcala started
climbing down the cages. During his deposition, Alcala testified that he
slipped while climbing down and fell, that he somehow came into contact
with the metal catwalk grate, and that he landed on the barn’s concrete
floor. In his interrogatory answers, Alcala stated that the metal scaffolding
“collapsed” as he was walking on it, causing him to fall to the floor below.
Alcala was taken to Froedtert Memorial Lutheran Hospital by
Flight for Life. Alcala suffered a left tibial fracture, an open complex
bimalleolar fracture of the right ankle, a compression fracture at L1 and
degenerative changes from T12 to L1 and L2. The left tibial plateau
fracture and the open complex bimalleolar fracture of the right ankle
required open reduction and internal fixation with plates and screws and
intramedullary nailing. In addition, Alcala’s injuries will cause his knees to
become arthritic, requiring a total knee anthroplasty, and his ankle will
require a subtalar fusion.
ANALYSIS
Summary judgment should 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). The plain
language of the rule “mandates the entry of summary judgment, after
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adequate time for discovery and upon motion, 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). The Court
must accept as true the evidence of the nonmovant and draw all justifiable
inferences in his favor. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255
(1986). Summary judgment is appropriate only if, on the record as a whole,
a rational trier of fact could not find for the non-moving party. Rogers v.
City of Chi., 320 F.3d 748, 752 (7th Cir. 2003).
I.

Strict liability and negligence
Plaintiffs argue that Meller’s catwalk contains manufacturing,

design, and warning defects. A product contains a manufacturing defect if
the product “departs from its intended design even though all possible care
was exercised in the manufacture of the product.” Wis. Stat. §
895.047(1)(a).2 A product contains a design defect if “the foreseeable risks
of harm posed by the product could have been reduced or avoided by the
adoption of a reasonable alternative design by the manufacturer and the
omission of the alternative design renders the product not reasonably safe.”

Wisconsin law applies in this diversity case. § 895.047 applies to strict products
liability claims that are commenced on or after February 1, 2011. 2011 Wis. Act 2, §
45(5).
2

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Id. A product is defective because of “inadequate instructions or warnings
only if the foreseeable risks of harm posed by the product could have been
reduced or avoided by the provision of reasonable instructions or warnings
by the manufacturer and the omission of the instructions or warnings
renders the product not reasonably safe.” Id. Plaintiffs must also show that
the defective condition rendered the product unreasonably dangerous to
persons or property; that the defective condition existed at the time the
product left the control of the manufacturer; that the product reached the
user or consumer without substantial change in the condition in which it
was sold; and that the defective condition was a cause of the claimant’s
damages. § 895.047(1)(b-e).
A claim of strict products liability “is much like a negligence claim
because it requires proof either that the product was unreasonably
dangerous or, what amounts to the same thing, that it was defective.”
Krien v. Harsco Corp., 745 F.3d 313, 317 (7th Cir. 2014). To succeed on a
claim of negligence, the plaintiffs must prove the existence of a duty of care
on the part of the defendant, breach of that duty of care, a causal
connection between the defendant’s breach and the plaintiff’s injury, and
actual loss or damage resulting from the injury. Gritzner v. Michael R., 611
N.W.2d 906, 912 (Wis. 2000). Negligence-based liability arises when the
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seller of a product breaches the duty of reasonable care in designing or
manufacturing the product. Komanekin v. Inland Truck Parts, 819 F.
Supp. 802, 808 (E.D. Wis. 1993). In the negligence context, the
reasonableness of a product’s design “turns essentially on whether the
seller could have come up with a less dangerous design.” Id.
Meller argues that the plaintiffs need expert testimony to survive
summary judgment on these claims. Thus, Meller’s motion is presented in
tandem with its motion to exclude the expert opinion and testimony of
Michael Wright, a civil engineer who opined that “the cause or causes of
[Alcala’s] injuries are from the defects in the design, manufacturing,
instructions and installation” of the platform in the chicken coop. ECF No.
76-23 (Exhibit W, Wright Report). Meller’s request for summary judgment
on these claims therefore rises and falls on its accompanying Daubert
motion.
The Court is not entirely persuaded that the plaintiffs need expert
testimony to proceed to trial. “Before expert testimony is held to be a
prerequisite, it must be found that the matter is not within the realm of
ordinary experience and lay comprehension.” White v. Leeder, 440 N.W.2d
557, 562 (Wis. 1989). As the Court has commented in previous orders, a
catwalk should not collapse under the weight of one man. See, e.g., Bruss v.
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Milwaukee Sporting Goods Co., 150 N.W.2d 337 (Wis. 1967) (no expert
testimony required in negligence action by students injured in collapse of
folding bleachers in high school gymnasium); Sumnicht v. Toyota Motor
Sales, USA, Inc., 360 N.W.2d 2, 18 (Wis. 1984) (in a strict liability case,
evidence of a malfunction “is one type of circumstantial evidence that can
be used in establishing a defective condition”). However, it is not necessary
to proceed with this line of inquiry because Wright’s testimony is
admissible at trial.
II.

Daubert motion
Rule 702 of the Federal Rules of Evidence requires the Court to

perform a “gatekeeping” function before admitting expert scientific
testimony in order to “ensure that any and all scientific testimony or
evidence admitted is not only relevant, but reliable.” Daubert, 509 U.S. at
589. The Court must make the following inquiries: first, the expert must
be qualified by knowledge, skill, experience, training, or education; second,
the proposed expert testimony must assist the trier of fact in determining a
relevant fact at issue in the case; third, the expert’s testimony must be
based on sufficient facts or data and reliable principles and methods; and
fourth, the expert must have reliably applied the principles and methods to
the facts of the case. Lees v. Carthage College, 714 F.3d 516, 521-22 (7th
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Cir. 2013). With regard to reliability, the Court considers a non-exhaustive
list of guideposts, including whether the scientific theory can be or has
been tested, whether the theory has been subjected to peer review and
publication, and whether the theory has been generally accepted in the
relevant scientific, technical, or professional community. Am. Honda Motor
Co., Inc. v. Allen, 600 F.3d 813, 817 (7th Cir. 2010) (citing Daubert at 59394).
A Daubert inquiry “is not designed to have the district judge take
the place of the jury to decide ultimate issues of credibility and accuracy. If
the proposed expert testimony meets the Daubert threshold of relevance
and reliability, the accuracy of the actual evidence is to be tested before the
jury with the familiar tools of ‘vigorous cross-examination, presentation of
contrary evidence, and careful instruction on the burden of proof.’” Lapsley
v. Xtek, Inc., 689 F.3d 802, 805 (7th Cir. 2012) (quoting Daubert at 596).
Wright has 35-plus years of professional experience as a structural
engineer,

safety

engineer,

construction

engineer,

certified

safety

professional, certified plant engineer, and expert witness. He is the
President of a company called Safety Through Engineering, Inc. Meller
does not challenge Wright’s credentials, and the Court finds that he is
qualified to render an expert opinion in this case.
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Wright described his methodology as follows:
I’m not sure every little detail, but in general terms I
reviewed the photos, my site information taken by the
photos. I reviewed the depositions. I reviewed the witness
statements. I reviewed the exhibits. I reviewed Wisconsin
Building Code, International Building Code, all the items
that I’ve listed in my report of March 27, 2014, and did
calculations and made those opinions based on my years of
experience as a structural engineer and safety engineer,
working with millwrights my entire 35 years, and
understood by reading the depositions and being present, I
understood and could – in my mind’s eye could see what was
happening. Also, from my original site inspection, I had my
opinion based on the angle geometry and connection of the
angle what most likely happened.
Wright Dep. at 71-72.
Wright opines that as Alcala came into contact with the grate, the
angle support nearest the cage where Alcala climbed down rotated toward
the grate, allowing the grate to fall through. “It is my opinion that the two
structural edge angles failed to be properly and adequately braced to be
able to resist the twisting effects and the gravity loading effects caused by
the normal foreseeable floor loading on the subject floor grating at the time
of the accident.” Report at 11. According to Wright’s calculations, the angle
was “unstable and couldn’t support the load” and “the degree of angle
rotation was enough to relieve that grating and let it fall.” Wright Dep. at
169-70.

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Meller

argues

that

Wright

lacked

a

reasonable

scientific

methodology to support his opinion about how the accident occurred.
Meller’s argument consists of picking and choosing isolated portions of
Wright’s Expert Report and deposition testimony to suggest that Wright
simply assumed that the platform was defective. See Winters v. Fru-Con
Inc., 498 F.3d 734, 743 (7th Cir. 2007) (“an expert does not assist the trier of
fact in determining whether a product failed if he starts his analysis based
upon the assumption that the product failed (the very question that he was
called upon to resolve)”). To the contrary, Wright’s opinions are grounded
in scientific methodology; he did not simply look at the angle and declare it
defective.
For example, consider the following elaboration in Wright’s
testimony:
A:

The angle is outside of industry practice and codes
because it’s not connected on the vertical leg and
because it can’t take the required loads of the building
and because it can’t take the required loads of the
building code or ACSE loads. And it rotates, and it
opens up, and the person falls through and it closes
back up. It rotates in a plastic – or elastic mode so it
goes right back.

Q:

… That’s what you’re trying to calculate on this Exhibit
Number 11 here?

A:

Yes. It’s based on Exhibit Number 5. And I made
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reference in the – in the calculation.
Q:

But you were unable to do the calculation to lead to any
specific conclusion; is that correct?

A:

No.

Q:

So tell me the … conclusion that you were –

A:

It’s inadequate.

Q:

I thought you said you couldn’t perform the calculation.

A:

The calculation assumes – I showed you hours ago that
you have to prevent angle rotation. I showed you that
in this standard. So automatically it fails. So then I
took the calculation one step farther and said, okay,
let’s assume that it’s – the vertical leg is bolted on both
ends, which it’s not, and run the calculation again to
see if it checks then, if they just have to go back and
put bolts in. It still doesn’t work.

Wright Dep. at 161-63. Moreover,
A:

From a structural engineering point of view, what
happened is the angle is unbraced, upper vertical leg is
not connected to the supporting channels at either end,
nor is the upper leg of the supporting channel
supported, braced, for its entire length of the 62 and
5/8 – or 5/6 – 5/8 length.
So, therefore, the top flange is not braced horizontally
whatsoever for its entire length, which is against the
design – AISC design standards, and you can’t get a
safe load determination from it.
But what happened is when a load was applied in that
area, the angle cannot resist that load properly and it
doesn’t deflect. It rotates..
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So deflection is not an issue. It’s the rotating inward
towards the catwalk. Top flange rotates inward
towards the catwalk. Bottom flange goes down and
rotates because it’s a rigid body.
And just from that phenomena of the top flange going
in, the bottom flange coming out, it actually slips off –
the grating actually slips off the angle, and thereby the
person would fall through.
And by the person falling through, the body function
would create friction on the angle – or on the grating,
and the grating would follow thereafter on top of the
person.
And since the rotation stresses, the torsional – latter
torsional buckling stresses of the angle was below
yield, it would basically pop back into place like a
rubber band, elastic, and it would not show signs of
being overstressed. Because in fact it wasn’t
overstressed; it was unstable.
So that’s my opinion of what happened. And I showed
you documents creating that’s exactly the issue.
Id. at 262-63. There is more, but the Court will not belabor the point.
Wright’s opinion is not the dreaded “ipse dixit,” or “because I say so.”
General Electric v. Joiner, 522 U.S. 136, 146 (1997).
Meller further argues that Wright’s opinions are unreliable because
he did not design, build and test any proposed alternative designs or
proposed warnings. “Testing is certainly one of the most common and
useful reliability guideposts for a district court when contemplating
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proposed Rule 702 evidence. But physical re-creations of industrial
accidents are not always feasible or prudent.” Lapsley, 689 F.3d at 815.
Wright’s calculations are simply another form of testing. Id. (“A
mathematical or computer model is a perfectly acceptable form of test”); see
also Cummins v. Lyle Indus., 93 F.3d 362, 369 (7th Cir. 1996) (“We do not
mean to suggest, of course, that hands-on testing is an absolute
prerequisite to the admission of expert testimony”). Bolting the vertical
flange (as advised by Wright and the industry standard) is an alternative
design that would render the catwalk safer than Meller’s design. Wright’s
calculations, however, revealed that even with the vertical flange bolted,
the catwalk would still be unable to support its intended load. Thus,
Wright proposes that a box, I-beam support, or bracing underneath the
grating should be added to the structure. Wright built such structures
“numerous times” over his years of experience, and there was no need to
“calculate it again.” Wright Dep. at 431-32.3 This methodology is not
unreliable under Daubert.
Meller also argues that Wright’s opinions are unreliable because he
found no evidence of a manufacturing defect. This is a mischaracterization
Moreover, S&R added steel anti-expansion bars underneath the grating of all
Meller catwalk systems in all of its barns immediately following the accident. Thus,
Wright’s alternative design has been tested on a daily basis at S&R following the Alcala
accident.
3

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of Wright’s testimony. “Since I don’t have the drawings, I can’t see if they
performed what was required on the drawings so I can’t distinguish if it
was just a design defect or both [i.e., manufacturing]. If the design showed
braces or bolts at the top angle, leg, I don’t know because I don’t have the
drawings.” Wright Dep. at 441. In fact, Wright did gather evidence of a
manufacturing defect. For example, Wright observed during his inspection
that nuts and bolts had fallen out of the Meller equipment onto the ground,
and various witness-employees testified as such. Moreover, whether it was
a design or manufacturing defect, Wright’s testimony is admissible because
it is undisputed that Meller designed, manufactured, supplied and oversaw
the installation of the catwalk.
Finally, Meller argues that Wright’s opinions are unreliable because
he relied upon standards and regulations that are not applicable to this
case or to Meller (e.g., OSHA, AISC, ACI, ANSI, NFPA, and the Wisconsin
Building

Code).

Once

again,

the

Court

disagrees

with

Meller’s

characterization of Wright’s testimony. Wright canvassed various industry
standards and, based upon his expertise, explained which standards are
relevant and which are not. For example, Wright explained that ACI
(American Concrete Institute) standards applied in this case even though
Meller did not make the concrete floor or build the building because it was
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built specifically to house Meller’s products. Wright Dep. at 104-120.
Wright also rejected the contention that the AISC (American Institute of
Steel Construction) manual is irrelevant because it is “the standard of the
industry, and that angle was not designed by the standard of industry.”
Wright

Dep.

at

92.

Ultimately,

Meller’s

arguments

about

the

inapplicability of various standards is the proper subject of crossexamination at trial.
III.

Breach of warranties
Plaintiffs’ breach of warranty claims are barred by the six-year

limitations period in the Uniform Commercial Code (as adopted in
Wisconsin). Wis. Stat. § 402.725. Plaintiffs argue that the limitations
period is three years running from the date of injury, Wis. Stat. § 893.54,
but this statute (and the accompanying discovery rule) applies to tort
claims, not claims sounding in contract. Plaintiffs object that the
limitations period set forth in § 402.725 expired before Alcala was even
injured, but this is not an anomalous or unfair result. See Ogle v.
Caterpillar Tractor Co., 716 P.2d 334, 350 (Wyo. 1986) (“it is worth noting
that an injured plaintiff whose warranty action is barred by UCC § 2-725
can still bring an action in either negligence or strict liability”).
The Court also agrees with Meller that the plaintiffs’ claim for
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breach of the implied duty of workmanship is duplicative of their
negligence claim. See Colton v. Foulkes, 47 N.W.2d 901, 903-04 (Wis. 1951).
To the extent that the plaintiffs intended this claim to sound in contract, it
is either time-barred or fails for lack of privity. City of LaCrosse v.
Schubert, Schroeder & Assocs., Inc., 240 N.W.2d 124, 125-26 (Wis. 1976)
(overruled on other grounds).4
CONCLUSION
Meller’s motion to exclude the opinions and testimony of Michael
Wright [ECF No. 71] is DENIED. Meller’s motion for summary judgment
[ECF No. 73] is GRANTED-IN-PART and DENIED-IN-PART. The
Court will conduct a telephonic status conference on March 31, 2015 at
9:30 a.m. (Central Time), the purpose of which will be to set this matter
for trial on the Court’s calendar. The Court will initiate the call.
Dated at Milwaukee, Wisconsin, this 5th day of March, 2015.
SO ORDERED:
__________________________
HON. RUDOLPH T. RANDA
U.S. District Judge

Indeed the lack of privity between the plaintiffs (Alcala and Nationwide) and
Meller would seem to preclude recovery on any breach of warranty claim. See, e.g,
McLain v. Dana Corp., 16 S.W.3d 320, 326-27 (Kent. Ct. App. 1999); Bruns v. Cooper
Indus., Inc., 605 N.E.2d 395, 397 (Ohio Ct. App. 1992).
4

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