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Costanza v. Vulcan Ladder Co.

United States District Court, N.D. Indiana, Fort Wayne Division

February 27, 2017




         This matter is before the Court on the Defendant's Motion for Reconsideration [ECF No. 79] and accompanying Brief in Support [ECF No. 80], filed on January 3, 2017, requesting that the Court reconsider the Opinion and Order [ECF No. 77] issued December 5, 2016, granting in part and denying in part the Defendant's Motion to Exclude Opinion Testimony of Charles Proctor [ECF No. 52] (the “Motion to Exclude”) and denying the Defendant's Motion for Summary Judgment [ECF No. 47]. The Defendant maintains on reconsideration that the Court should enter summary judgment in its favor because the Court admitted the testimony of Plaintiff's expert over the Defendant's objection, and that there are no genuine issues of material fact. The Plaintiff filed a Response [ECF No. 81] on January 10, 2017, and the Defendant filed a Reply [ECF No. 82] on January 17, 2017. This matter is now fully briefed and ripe for ruling.


         A district court is “entitled to reconsider its initial denial of summary judgment, because the denial of summary judgment [i]s simply an interlocutory order, which the district court ha[s] broad authority to reconsider.” Peirick v. Ind. Univ.-Purdue Univ. Athletics Dep't, 510 F.3d 681, 694 n.5 (7th Cir. 2007); see also Fed. R. Civ. P. 54(b) (stating that orders adjudicating fewer than all claims do not end an action and “may be revised at any time before the entry of a judgment adjudicating all the claims and all the parties' rights and liabilities”).

         The Seventh Circuit has discussed the role of a motion to reconsider as follows:

A motion for reconsideration performs a valuable function where the Court has patently misunderstood a party, or has made a decision outside the adversarial issues presented to the Court by the parties, or has made an error not of reasoning but of apprehension. A further basis for a motion to reconsider would be a controlling or significant change in the law or facts since the submission of the issue to the Court.

         Bank of Waunakee v. Rochester Cheese Sales, Inc., 906 F.2d 1185, 1191 (7th Cir. 1990) (citations omitted); see also LB Credit Corp. v. Resolution Tr. Corp., 49 F.3d 1263, 1267 (7th Cir. 1995) (“[A] Rule 59(e) motion must clearly establish either a manifest error of law or fact or must present newly discovered evidence.”) (internal quotation marks omitted). However, a Rule 59(e) motion may not be used simply to re-litigate issues that have already been decided. Sigsworth v. City of Aurora, Ill., 487 F.3d 506, 512 (7th Cir. 2007) (quotation marks omitted).


         A. Objections to Proctor's Expert Testimony Regarding the Cause of the Accident

         The Defendant challenges the Court's ruling that Charles Proctor's expert opinion testimony is admissible in so far as it pertains to the cause of the accident.[1] The Defendant contends that Proctor's testimony should be excluded because its expert, Jon Ver Halen, has demonstrated that it is not possible to step on the ladder when placed against the wall without the ladder locking absent the user intentionally unlocking the hinges. The Defendant asserts that “Proctor's opinions in this case are exactly the kind of expert testimony that Rule 72 is designed to exclude” because “it is unsupported conjecture that fails to account for the undisputed evidence in this case.” (Mot. to Recons. 2, ECF No. 80.)

         The Court first notes that the Defendant has not quite particularized in its briefing for the Motion for Summary Judgment or in its briefing for this Motion where under the Daubert v. Merrell Dow Pharmaceuticals, 509 U.S. 579 (1993), framework the Court should find Proctor's expert opinion inadmissible. Baugh ex rel. Baugh v. Cuprum S.A. de C.V., 845 F.3d 838, 844 (7th Cir. 2017) (“[Defendant] repeatedly used . . . Rule 702/Daubert buzzwords and cited multiple cases applying the related framework. . . . [s]o the district judge should have treated [the defendant's objection] as invoking [the] Rule 702 and Daubert [framework].”). District courts apply the Daubert framework using a three-part analysis. Meyers v. Ill. Cent. R.R. Co., 629 F.3d 639, 644 (7th Cir. 2010). First, the Court must determine whether the proposed witness is qualified as an expert by knowledge, skill, experience, training, or education. If so, the court must then decide whether the reasoning or methodology underling the expert's testimony is reliable. If these two requirements are met, the court must assess whether the expert's proposed testimony will assist the trier of fact in understanding the evidence or to determine a factual issue. See Id. (citing Ervin v. Johnson & Johnson, Inc., 492 F.3d 901, 904 (7th Cir. 2007)). During the Court's previous inquiry, the Court observed that the Defendant did not contest the admissibility of Proctor's expert opinion on parts one or three of the Daubert framework, but surmised that the Defendant likely was objecting on the second part.[2]

         On the Motion for Reconsideration, the Defendant attacks the admissibility of Proctor's expert opinion by arguing he incorrectly relied on the testimony of the Plaintiff's two sons and the testimony of the Plaintiff who, because of the fall, has at times a limited memory of every moment of the accident. (Costanza Dep. 32 (“I remember leaving the roof area and I ended up on the ground, but I don't remember anything after that.”).) The Defendant also argues that this, combined with the fact that he did not test whether the ladder could remain unlocked after pushing on the hinges or stepping on the ladder, makes his testimony unsupported and speculative.

         But as the Court has already said in its prior Opinion and Order, Daubert and Rule 702 precisely allow for this type of expert testimony to be admitted. See Baugh, 845 F.3d at 847. In preparing his opinion testimony, Proctor reviewed the Plaintiff's Deposition [ECF No. 49-2] and those of his three sons. He examined the ladder instructions, and photographs taken by one of the Plaintiff's sons of the ladder as it was allegedly positioned after the fall. In reaching his engineering opinions, Proctor states that he followed ASTM standards. The Seventh Circuit's recent opinion in Baugh, another ladder slip and fall case, reinforces this very point that it was more than appropriate for Proctor to rely on the materials and testimony he used to support his opinion. In Baugh, “[i]n order to reach his [admissible] opinions, [a ladder expert] reviewed, among other things, photographs of the scene of the accident with overlaid measurements, transcripts of deposition testimony supplied by witnesses to the aftermath of the accident, the actual ladder that [the plaintiff] had used, and an exemplar ladder.” Id.

         That the Defendant offers a competing expert with a contrary conclusion makes no difference. Advisory Committee ...

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