BENTON – Senior U.S. District Judge Phil Gilbert, cranky when he rejected an injury suit from a client of Bruce Cook’s firm in June, tersely denied reconsideration.
“There is nothing to reconsider here,” Gilbert wrote on Aug. 24, as he stood by an order excluding an expert for plaintiff Richard Clark of Cobden and closing the case.
“Clark argues that the court made several manifest errors of fact in its decision,” Gilbert wrote.
“None of these arguments correctly represent the court’s order.”
Joseph Bartholomew of Cook’s firm sued River Metals Recycling and Sierra International Machinery for Clark in 2015, in St. Clair County circuit court.
He claimed Clark fell and shattered an elbow while maintaining tanks on a baling machine at a car crushing business.
Clark sued River Metals as the machine’s owner and Sierra as manufacturer.
River Metals removed the action to federal court.
Last year, Cook and Colleen Jones of his firm entered appearances for Clark.
Gilbert granted summary judgment to River Metals and Sierra this year, in an order full of vinegar.
“This case is simpler than the docket sheet indicates,” Gilbert wrote.
He wrote that Clark would climb up on the machine, step on hydraulic lines, grab a hose to hold on to, and move across a cylinder to reach the tanks. He also wrote that Clark stood five feet above the ground.
This contravened Sierra’s recommendation that workers use a ladder or a platform, Gilbert wrote.
He wrote that Clark always jumped down after checking the tanks, “even though the operator’s manual says ‘Do NOT jump off the machine.’”
Clark sued on a strict liability theory, arguing the machine should have had a fixed ladder.
Gilbert had ruled that Clark would have to present expert testimony that the danger of the design outweighed its utility.
Clark presented James Blundell, who testified that the machine should have had a ladder, toe boards, and rails.
“And that bare conclusion is just about all that Dr. Blundell has offered,” Gilbert wrote.
“Sierra points out that Dr. Blundell basically just looked at the machine, decided it needed a ladder, and did nothing more.
“Clark disagrees, and refers to Sierra’s motion as frivolous and absurd.”
The words came from a brief Cook filed.
“There are a lot of good reasons not to refer to an opposing argument this way,” Gilbert wrote.
He wrote that the biggest reason was that Sierra’s argument was correct.
“This case has reached its end,” he wrote, but it hadn’t.
Jones moved for reconsideration on July 23, arguing that Gilbert committed error by finding Clark jumped.
She wrote that Clark never testified that he jumped.
She moved for a hearing on Blundell’s testimony, but also argued that Gilbert shouldn’t require expert testimony on common sense safety features.
“Here, while the crusher component of the machine is complex, the mounting of the machine by plaintiff in the absence of a ladder to perform required maintenance is not,” Jones wrote.
Sierra counsel David Schott of Edwardsville opposed reconsideration on July 30, writing that Clark was the only witness to the accident.
“The product in question is a complex piece of machinery that the average juror would not even have heard of much less even seen,” Schott wrote.
River Metals counsel James Craney of Edwardsville joined Schott’s response.
Cook replied on Aug. 13, arguing that he planned to call Sierra’s expert as a witness for Clark at trial.
He wrote that the expert testified that portable detachable ladders were feasible or that Clark should have used a stepladder.
“A manufacturer is duty bound to adopt all devices necessary to make his product not unreasonably dangerous,” Cook wrote.
Gilbert denied reconsideration 11 days later, finding Clark waived his arguments about the deposition of Sierra’s expert.
“These freshly minted arguments include new citations to deposition testimony, cases that did not appear in Clark’s response brief at the summary judgment stage, and more,” he wrote.
“That is a textbook example of waiver.”
He wrote that Clark contradicted himself at his deposition, saying that he always jumped down and that he didn’t know why he fell.
“Every factual discrepancy is there,” he wrote.