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Ferguson v. Menard, Inc.

United States District Court, N.D. Indiana, LaFayette Division

September 27, 2017

JOEL FERGUSON, et al., Plaintiffs,
v.
MENARD INC., Defendant.

          OPINION AND ORDER

          Joseph S. Van Bokkelen, United States District Judge.

         Plaintiffs Joel and Tammy Ferguson sued Defendant Menard Inc. in Tippecanoe County Superior Court for damages rising out of Joel Ferguson's injury at a Menard store.[1] The case was removed to federal court on the basis of diversity jurisdiction. The Court finds that it has jurisdiction because there is complete diversity between the parties and the amount in controversy exceeds $75, 000.

         This matter is now before the Court on Menard's motions for summary judgment (DE 37) and to strike certain evidence Plaintiffs have offered in opposition to Menard's motion for summary judgment (DE 44). After having provided the parties with a draft of this opinion, the Court held oral argument on the motion on September 26, 2017.

         A. Facts

         On January 17, 2014, Plaintiff Joel Ferguson, a truck driver, was making a delivery to the Menard store in West Lafayette, Indiana. The loading dock where he was to make his delivery was equipped with a dock leveler. A dock leveler is a metal plate that extends from the end of the dock. Once it is in place it forms a ramp or bridge between the dock and a trailer so that a forklift can drive over it to unload pallets from within the trailer.

         Ferguson had experience operating dock levelers similar to the dock levelers used at Menard. That dock leveler is put in place by inserting a hand lever, also called a handle or bar, into a socket in the device. On the day of the incident, Ferguson found the lever and put it into the socket, in the one o'clock position. Using both hands, he lowered the lever by pulling it toward himself, attempting to get the lever to the 9 o'clock position (parallel to the dock floor), where it needed to be to place the dock leveler in its locked position, ready for use. However, when Ferguson moved the lever he could not get the dock leveler to lock in place. While attempting to put the lever back in its original one o'clock position, the lever was pulled out of his hands. It came out of the socket, and spiraled back, striking Ferguson above his right eye. He testified that it was pulled out of his hands by the weight of the dock leveler plate because the spring mechanism did not engage.

         Menard employee Marcus Curtin was operating a forklift in the receiving area facing the loading dock doors and was positioned behind Ferguson when the incident occurred. On the evening of the day of Ferguson's accident, after the accident, Curtin, James Van Fossan (another loading dock worker), and Menard's receiving manager, Randy Harcourt, tested the dock leveler Ferguson had used. Each of the three men operated the dock leveler two or three times. Each time the dock leveler operated properly and the dock plate locked in position when the lever was lowered to the nine o'clock position. The dock levelers at the Menard store in West Lafayette have been in continuous use since the store opened in 2006. Curtin and Van Fossan worked at the receiving dock there between 2012 and 2016. During that time there were no reports of difficulty using the dock leveler and the only injuries to anyone using a dock leveler was the injury to Ferguson.

         Ferguson's amended complaint alleges simply that his injuries “resulted from the negligence and/or fault of Menards and/or APS.” (DE 3 at 2.)[2] During discovery, Menard attempted to flesh out this allegation by propounding an interrogatory asking Plaintiffs to state each reason why they contend Menard was negligent. Plaintiffs' answer was that “the dock-plate system malfunctioned and caused a bar to shoot up and hit me in the eye/face . . .” adding that the response “may be supplemented as discovery continues.” (DE 46-1 at 4.) Plaintiffs never supplemented the response. Plaintiffs were also asked in the interrogatories to identify the experts they intended to call at trial. They named only Jay Nogan, who, they said, would provide testimony regarding the design, installation, operation, and maintenance of the dock leveler.

         At the preliminary pretrial conference held on May 26, 2016, Magistrate Judge John Martin established December 30, 2016, as the deadline for Plaintiffs' expert witness disclosures and reports (DE 20). By order dated September 14, 2016, he reaffirmed that deadline. When Plaintiff did not disclose any additional experts or serve any expert reports on Menard by the deadline, Menard, on January 12, 2017, filed its motion for summary judgment on the basis of Plaintiffs' claim that the dock leveler malfunctioned.

         In the motion for summary judgment, Menard argued that the undisputed evidence showed that there is no evidence of any defect in the dock leveler that caused Ferguson's injury and that Menard had no actual or constructive knowledge of any unreasonably hazardous condition presented by the dock leveler.

         Plaintiffs filed their response to the summary judgment motion on February 24, 2017, which they supported with the affidavit and expert report of Brooks Rugemer, video surveillance tapes, and excerpts from the deposition testimony of Bill Nash and James Van Fossan. Rugemer's expert report was dated January 1, 2017. In their response, Plaintiffs asserted for the first time that the forklift struck the dock leveler and caused the lever to fly into the air, striking Ferguson. They also claimed that the testimony of Nash and Van Fossan raises a factual issue as to whether improper adjustment and maintenance of the springs in the dock leveler contributed to the incident.

         B. Discussion

         (1) The Motion to Strike

         Menard argues that Rugemer's affidavit should be stricken because it was untimely and because it is inadmissible under Federal Rule of Evidence 702. There is no need to discuss the timeliness issue because in any case Rugemer's affidavit is inadmissible because it is not helpful. It is not based on any scientific principles, but instead relies on his viewing of an extremely poor quality video that he claims shows that the forklift struck the dock leveler when it was in an upright position. Rugemer is no better qualified to say what the video shows than a juror would be. He applied no scientific, technical, or other specialized knowledge that would help the trier of fact to understand the evidence. Moreover the data-the video tape-is of such poor quality that it is impossible to tell from it whether the forklift struck the dock leveler or when the lever left the socket and struck Ferguson. Thus Rugemer's opinion is not based on sufficient facts or data. In fact, there wasn't any disagreement that ...


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