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Saturday, July 20, 2019

Seventh Circuit sides with Gilbert in shutting down injury suit supported by weak expert

Federal Court

By Record News | Jul 9, 2019


CHICAGO – U.S. Senior District Judge Phil Gilbert correctly ended an injury suit after an expert who called a machine dangerous couldn’t explain how to make it safer, Seventh Circuit appellate judges ruled on July 2. 

They affirmed Gilbert in granting summary judgment against Richard Clark of Cobden, a client of Bruce N. Cook’s firm in Belleville. 

Chief Justice Diane Wood wrote that a report of University of Missouri mechanical engineering professor James Blundell was five pages long. 

“Brevity may be the soul of wit, but there is a difference between a complete but concise treatment of a subject and a failure to address the important points,” Wood wrote. 

Clark, as an employee of Thornton Auto Crushing, shattered his left elbow in a fall from a crushing machine. 

According to the ruling, Clark worked with the machine for 18 months before the accident. He checked oil, antifreeze, and hydraulic fluids, and would clamber up the machine’s right side, “stepping and grabbing onto whatever was handy.” 

Sierra recommended using a ladder, a forklift, or a man lift. 

To get down, Clark stepped from a platform 60 inches from the ground to a steel plate 45 inches from the ground, and jumped the rest of the way. 

On March 11, 2013, he attempted to dismount as usual but slipped and fell to the ground. His arm became almost useless and he has been in constant pain.  

In 2015, Clark sued River Metals Recycling as the machine’s owner and Sierra International Machinery as its manufacturer. 

Joseph Bartholomew of the Cook firm filed the suit in St. Clair County circuit court. 

Defendants removed it to U.S. district court. 

Blundell opined for Clark that that the machine should have had a ladder at the front, along with toe boards and guardrails. 

Defendants moved to strike his report, and Clark moved for a hearing. 

Gilbert denied a hearing and rejected the report as bare conclusion. 

He found Brundell repeatedly demonstrated in his deposition that he didn’t understand how to perform daily maintenance on the machine. 

Gilbert granted summary judgment last June, and Clark appealed. 

Clark claimed Gilbert should have allowed Brundell’s report and shouldn’t have ruled on it without a hearing. 

In the alternative, he claimed he didn’t need Brundell because the defect was so obvious that jurors would understand it without expert testimony. 

Wood and Justices Michael Scudder and Amy St. Eve heard argument on April 8. 

Wood wrote that they had no trouble following Gilbert’s thinking. 

"We see no deficiency in the district court’s decision about the necessity of a hearing, and so it committed no error when it resolved this issue without one,” Wood wrote.

“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 question becomes more complex if we must decide how such a ladder might have been built into the machine." 

She wrote that just to say it would be possible to attach a ladder doesn’t tell where it should go, how expensive a design change would be, or whether a ladder would be enough without toe boards and guardrails. 

She further wrote that the case couldn’t be resolved exclusively on common experience, and that Clark needed expert testimony for a critical element of his case. With Blundell’s analysis excluded, he had none, she wrote.

“It is always regrettable when a person is injured on the job, especially when it seems from a lay person’s standpoint that a relatively easy measure might have prevented the injury,” she wrote. “But that does not mean that every possible defendant is always liable.” 

Bartholomew and Cook represented Clark along with Colleen Jones and Stephanie Brauer of Cook’s firm. 

James Craney and Nicole Winters, both of Edwardsville, represented River Metals 

John Socolow of White Plains, New York, represented Sierra International along with David Schott and Scott Bjorseth, both of Edwardsville.

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Fitzpatrick & Hunt, Pagano, Aubert, LLP U.S. Court of Appeals for the Seventh Circuit

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