Richard Clark v. River Metals Recycling, LLC

In the
United States Court of Appeals
For the Seventh Circuit
____________________
Nos. 18-3034 & 18-3141
RICHARD A. CLARK,
Plaintiff-Appellant, Cross-Appellee,
v.
RIVER METALS RECYCLING, LLC,
Defendant-Appellee, Cross-Appellant,
and
SIERRA INTERNATIONAL MACHINERY, LLC,
Defendant-Appellee.
____________________
Appeals from the United States District Court for the
Southern District of Illinois.
No. 3:15-cv-00447-JPG-RJD — J. Phil Gilbert, Judge.
____________________
ARGUED APRIL 8, 2019 — DECIDED JULY 2, 2019
____________________
Before WOOD, Chief Judge, and SCUDDER and ST. EVE, Cir-
cuit Judges.
2 Nos. 18-3034 & 18-3141
WOOD, Chief Judge. Accidents unfortunately happen on
business premises with some regularity. The workers’ com-
pensation system normally governs payments from employ-
ers to injured workers, but those workers are free to sue other
parties, such as suppliers or lessors of machinery that is used
on the site. That is what happened here: Richard A. Clark was
badly injured as he was getting off a car-crushing machine
known as a mobile RB6000 Logger/Baler (“the Crusher”),
which was used by his employer, Thornton Auto Crushing,
LLC. He sued both the manufacturer of the Crusher, Sierra
International Machinery, LLC, and the company that had
leased it to Thornton, River Metals Recycling, LLC, asserting
that they were liable to him under Illinois tort law because it
was defectively designed. The district court granted summary
judgment in both defendants’ favor after it decided to strike
the testimony from Clark’s expert. Even taking the facts in the
light most favorable to Clark, as we must, we conclude that
the district court was correct to take this action. We therefore
affirm its judgment.
I
A
Scrap cars eventually end up with a company such as
Thornton, which crushes cars and sends what remains to a
salvage company. One of the machines Thornton used to
squash the cars was the Crusher. The Crusher had been as-
sembled in Italy and then imported into the United States by
Sierra. Sierra sold it to a company called Tri-State, which in
turn conveyed it to River Metals through an asset-only pur-
chase agreement. River Metals leased it to Thornton.
Nos. 18-3034 & 18-3141 3
The Crusher was a rather large machine, as the picture of
it that appears in the record shows:
Every other day or so for about 18 months before his accident,
Clark had worked with this machine. He was responsible for
daily maintenance, including checking the oil, antifreeze, and
hydraulic fluids. In order to perform these tasks, he would
clamber up the right side of the machine, stepping and grab-
bing onto whatever was handy: the hydraulic lines, a hose, or
a cylinder, for example. This was not a method endorsed by
Sierra: it recommended instead that workers use either a lad-
der or a working platform, such as a manlift or a forklift, to
reach the tanks. When the time came to get down, Clark typ-
ically turned, stepped down from the tank-level platform
(about 60 inches above the ground) onto the steel plate on top
of the stabilizer (about 45 inches from the ground), and from
there jumped the rest of the way.
4 Nos. 18-3034 & 18-3141
On March 11, 2013, Clark finished his work up on the ma-
chine and attempted to dismount as usual. But this time he
slipped, fell to the ground, and landed on his outstretched
arm, shattering his elbow. He was taken to the Emergency De-
partment at Carbondale Memorial Hospital; the Hospital rec-
orded that “[a]s he was getting off the bailer [sic] apparently
he slipped in some hydraulic fluid.” Since the accident,
Clark’s left arm has been almost completely useless, and he
has been in constant pain. He has not been able to work, de-
spite an effort to return to Thornton.
B
A little less than two years later, Clark filed a products-
liability complaint against River Metals and Sierra in the Cir-
cuit Court of St. Clair County, Illinois. In it, he alleged that the
Crusher was defective and unreasonably dangerous, because
it failed to provide an adequate platform, handrails, or other
area for performing routine maintenance. (Sierra named sev-
eral third-party defendants, but the district court dismissed
them, and they play no part in this appeal.) River Metals and
Sierra removed the case to the U.S. District Court for the
Southern District of Illinois on the basis of diversity jurisdic-
tion, 28 U.S.C. § 1332(a)(1). After motion practice not relevant
here, the district court granted summary judgment for both
defendants on the ground that Clark could use only Illinois’s
risk-utility test for his defective-design theory, see Calles v.
Scripto-Tokai Corp., 224 Ill. 2d 247, 255–59 (2007), and that he
had failed to present admissible expert evidence for that pur-
pose.
The problem was not that Clark failed to present an expert:
he did, in the person of Dr. James Blundell. Dr. Blundell has
been a professor of mechanical engineering at the University
Nos. 18-3034 & 18-3141 5
of Missouri for over 30 years, and he has published many
peer-reviewed articles in that field. He opined that the
Crusher should have had a ladder, toeboards, and guardrails.
In support of those recommendations, he pointed to a stand-
ard published by the American National Standards Institute
(ANSI) recommending that a ladder be available at the front
platform of the machine for safe ascent and descent. This
would have required an alteration of the front platform, but
Dr. Blundell thought that this would be straightforward—it
could be done by mimicking the cab end of the machine. He
did not, however, develop this idea any further or provide
any sketches as examples. That would have been difficult,
Clark argues, because the defendants had refused to make
their drawings or specifications for the machine available to
him.
The district court found that Dr. Blundell’s testimony did
not satisfy the threshold criteria of Federal Rule of Evidence
702—in particular, the requirement that “the expert … relia-
bly appl[y] the principles and methods to the facts of the
case.” FED. R. EVID. 702(d). It did so for several reasons. First,
looking at Dr. Blundell’s deposition, the court noted that “he
repeatedly demonstrated … that he does not understand how
to perform daily maintenance on the machine.” Second, be-
cause Dr. Blundell had no alternative design to offer, the court
thought that his opinion was “nothing more than a bare con-
clusion that adds nothing of value to the judicial process.” See
Clark v. River Metals Recycling, LLC, No. 3:15-cv-00447-JPG-
RJD, 2018 WL 3108891, at *6 (S.D. Ill. June 25, 2018) (cleaned
up) (quoting McMahon v. Bunn-O-Matic Corp., 150 F.3d 651,
658 (7th Cir. 1998)). Third, Dr. Blundell eventually admitted
that the ANSI standard to which he had pointed did not insist
on a fixed ladder, as opposed to an external ladder. (Indeed,
6 Nos. 18-3034 & 18-3141
that standard—as quoted in Dr. Blundell’s report—is con-
cerned with the need for railings, not ladders.) For all those
reasons, the court struck Dr. Blundell’s testimony. It also re-
jected Clark’s last-ditch effort to rely on the testimony of Si-
erra’s Service Tech Manager, Antonio Torres, in support of the
defective-design theory. Taking that testimony in the light
most favorable to Clark, Torres admitted that it would be fea-
sible to put a ladder and a handrail somewhere on the front
platform, but critically, Torres also said that there were “other
ways” to provide a safe way of getting on and off the machine.
Id. at *7. Those “other ways” were Sierra’s designed and in-
tended ways: an external ladder, forklift, or manlift.
Without admissible expert testimony, the district court
held, Clark’s suit could not survive. The court accordingly
granted summary judgment for both defendants and dis-
missed all other claims. It also refused to allow Clark to
amend his complaint to introduce a failure-to-warn theory.
Such an 11th-hour amendment would gravely prejudice the
defendants, the court concluded, and there was no justifica-
tion for Clark’s delay in raising the claim. Clark has appealed
only from the summary judgment ruling, not from the denial
of leave to amend.
II
Clark’s principal argument on appeal is that the district
court erred in its treatment of Dr. Blundell, and more broadly
in its decision that expert testimony was essential. He first
contends that the court should have held a hearing before ex-
cluding Dr. Blundell’s testimony. Second, he argues that ex-
pert testimony was not necessary to establish the “common-
sense” point that a safety feature such as a built-in ladder had
to be included in order to make the Crusher safe.
Nos. 18-3034 & 18-3141 7
A
We consider de novo the question whether the district court
properly applied the Rule 702 framework (often called the
Daubert framework, after the Supreme Court’s decision in
Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579
(1993), which was largely codified in the Rule). Lapsley v. Xtek,
Inc., 689 F.3d 802, 809 (7th Cir. 2012). In so doing, we bear in
mind that the threshold inquiry “is not designed to have the
district judge take the place of the jury to decide ultimate is-
sues of credibility and accuracy.” Id. at 805. If the district court
has properly applied the Rule, our review of the decision to
admit or exclude evidence is deferential. Id.
Turning first to the question of basic methodology, we find
no error in the district court’s application of Rule 702. The
court summarized the Rule accurately and then turned to the
task of applying it to Dr. Blundell’s testimony. Our review of
that application is only for abuse of discretion.
The district court’s decision to exclude the testimony rep-
resented a reasonable assessment of the proposed evidence. It
found Dr. Blundell’s methodology to be unclear and conclu-
sory, and we have no trouble following its thinking. We see
no deficiency in the district court’s decision about the neces-
sity of a hearing, and so it committed no error when it re-
solved this issue without one. The report is just five pages
long, including Dr. Blundell’s discussion of the facts of the
case, his description of the machine, and his recitation of the
Operator’s Manual. His analysis covers one page, in which he
cited only an ANSI standard. The portion of that standard on
which he relied states “Every open-sided floor or platform
that is four feet or more above adjacent floor or ground level
8 Nos. 18-3034 & 18-3141
shall be guarded by a railing system along all open sides, ex-
cept where excluded as specified in 1.2 or where there is en-
trance to a ramp, stairway or fixed ladder.” Because Clark was
descending from a height of approximately five feet (59.75
inches), Dr. Blundell concluded that “a railing, a fixed ladder
and a toe board should have been provided.”
Brevity may be the soul of wit, but there is a difference be-
tween a complete but concise treatment of a subject and a fail-
ure to address the important points. There are several prob-
lems with Dr. Blundell’s cursory statement. First, his para-
phrase of the ANSI standard is not accurate. Although it does
say that a railing is necessary, it says nothing about requiring
a fixed ladder or a toeboard. Instead, it says that there should
be an opening in a guard rail for a fixed ladder, and it is silent
about toeboards. Indeed, Dr. Blundell did not even recom-
mend, based on his own experience, that a toeboard and a
fixed ladder should be added to a guardrail in order properly
to protect maintenance workers.
The district court also criticized Dr. Blundell for his lack of
knowledge of the Crusher machine. It is true that he could not
readily identify where each type of maintenance occurred. On
the other hand, no one contested the fact that Clark had to
climb up and get down from the front area, and Dr. Blundell
was well aware of that. But the lack of dispute over the critical
area is at most one point in Dr. Blundell’s favor, and it is not
one that overrode the other deficiencies the district court
noted. We thus conclude that the district court did not err
when it excluded Dr. Blundell’s proffered expert testimony.
Nos. 18-3034 & 18-3141 9
B
Clark’s back-up position is that the need for some safe-
guards on the Crusher was obvious enough that he should
have been able to reach the jury without expert testimony. Re-
call that under Illinois law, a plaintiff bringing a strict-liability
case based on a product defect must prove the following:
(1) a condition of the product as a result of manufac-
turing or design, (2) that made the product unreasona-
bly dangerous, (3) and that existed at the time the
product left the defendant’s control, and (4) an injury
to the plaintiff, (5) that was proximately caused by the
condition.
Mikolajczyk v. Ford Motor Co., 231 Ill. 2d 516, 543 (2008), opin-
ion modified on denial of reh’g (Dec. 18, 2008). The only ele-
ment at issue in Clark’s case is the second—whether the prod-
uct was unreasonably dangerous. He bears the burden of
proof. Id.
Illinois courts use two different approaches in order to de-
cide whether something is unreasonably dangerous—the
consumer-expectations test and the risk-utility test. Id. at 541.
But if the evidence before the court implicates the risk-utility
test, it is the one that the court should use, “because the latter
[i.e. the consumer-expectations test] is incorporated into the
former and is but one factor among many for the jury to con-
sider.” Id. at 556. The Illinois Supreme Court calls this an in-
tegrated test, and it has created a daunting list of at least 11
non-exclusive and non-dispositive factors that a factfinder
might consider when applying it. We list a few of those factors
to give the reader a feel for what is relevant:
10 Nos. 18-3034 & 18-3141
(1) The usefulness and desirability of the product to the
user and to the public at large;
(2) The likelihood that the product will cause injury, and
if so, how serious that injury might be;
(3) The availability of substitutes that would meet the
same need in a safer way;
(4) The feasibility for the manufacturer to eliminate the
unsafe characteristics without either impairing utility
or driving cost up too high;
(5) The user’s ability to avoid danger by the exercise of
care;
(6) The user’s probable awareness of dangers inherent in
the product, either through general public knowledge
or suitable warnings or instructions;
(7) The manufacturer’s ability to obtain liability insurance.
Calles, 224 Ill. 2d at 264–66.
Although it may seem obvious that a ladder was all that a
maintenance worker would have needed in order safely to get
up to the top of the Crusher and back down again, the ques-
tion becomes more complex if we must decide how such a
ladder might have been built into the machine. Just to say, as
Sierra seems to concede, that it would be possible to attach a
fixed ladder to the machine, does not tell us where the ladder
should have gone, how expensive this design change would
have been, or whether a ladder alone would be enough with-
out guardrails and toeholds. We also know nothing about
possible substitutes for the Crusher, or about the relative ease
of obtaining liability insurance.
Nos. 18-3034 & 18-3141 11
Illinois courts have recognized that “[p]roducts liability
actions … often involve specialized knowledge or expertise
outside the layman’s knowledge” and so may require expert
testimony. See Baltus v. Weaver Div. of Kidde & Co., 199 Ill. App.
3d 821, 834 (1990); Show v. Ford Motor Co., 659 F.3d 584, 585
(7th Cir. 2011) (“Several intermediate appellate decisions in
Illinois say that expert testimony is vital in design-defect cases
when aspects of a product’s design or operation are outside
the scope of lay knowledge.”). We understand this to imply
that there might be some products that are so simple that no
expert is needed to tell people how to use them. Thus, for in-
stance, in Baltus the Illinois Appellate Court observed that “if
a chair is designed to be easily collapsible, for portability, but
has the tendency to collapse when someone sits on it, an ex-
pert in chair design may not be needed to help the jury decide
that the design is unreasonably dangerous; it does not func-
tion in the manner expected and is in fact unsafe.” 199 Ill.
App. 3d at 836. But we agree with the district court that the
case before us is not one that can be resolved exclusively on
the basis of common experience. Clark needed expert testi-
mony for this critical element of his case (i.e. what design(s)
would have been acceptable), and with Dr. Blundell’s analysis
excluded, he had none. Summary judgment for both defend-
ants followed naturally.
III
Before concluding, we add a few words about River Met-
als’s cross-appeal. The first point to make is that it was unnec-
essary to file a formal cross-appeal. River Metals is simply of-
fering an alternate ground to support the district court’s judg-
ment in its favor; it has no desire to change that judgment. In
the district court, it moved for dismissal on the ground
12 Nos. 18-3034 & 18-3141
(among others) that it was a non-manufacturer defendant for
purposes of 735 ILCS 5/2-621. See also id. 5/2-621(b), (c) (re-
quiring dismissal of a non-manufacturer defendant once the
manufacturer has “been required to answer or otherwise
plead” unless the plaintiff establishes certain exceptions). The
district court denied the motion because it thought that River
Metals raised this defense too late—more than two years after
filing the answer, and several months after moving for sum-
mary judgment.
This may have been erroneous. Illinois courts focus only
on the establishment of the manufacturer’s identity “in a
timely fashion” and the lack of prejudice for a plaintiff. Cherry
v. Siemans Med. Sys., Inc., 206 Ill. App. 3d 1055, 1061 (1990).
But we do not need to resolve this dispute in light of our de-
cision that both defendants were entitled to summary judg-
ment on the merits. We also have no need to address River
Metals’s arguments that, as a lessor of a used product, it was
not a company that could be strictly liable for design defects,
and that its liability was precluded by the terms of the agree-
ment pursuant to which it bought the assets of Tri-State, the
original purchaser from Sierra.
IV
It is always regrettable when a person is injured on the job,
especially when it seems from a layperson’s standpoint that a
relatively easy measure might have prevented the injury. But
that does not mean that every possible defendant is always
liable. Clark sued the manufacturer and lessor of the machine
on which he had been working, but under Illinois law, he
needed expert testimony to pin down exactly why the ma-
chine was designed in a defective way. The district court did
Nos. 18-3034 & 18-3141 13
not abuse its discretion in excluding the only expert testimony
that he had, and so its judgment must be AFFIRMED.