The opinion of the court was delivered by: Karen E. Schreier Chief Judge
ORDER DENYING DEFENDANTS' MOTION TO EXCLUDE THE TESTIMONY OF PLAINTIFFS' EXPERT OR IN THE ALTERNATIVE TO STRIKE THE SUPPLEMENTAL REPORT OF PLAINTIFFS' EXPERT AND GRANTING IN PART AND DENYING IN PART DEFENDANTS' MOTION FOR SUMMARY JUDGMENT
Pending before the court is the motion of defendants, Cooper Industries, Inc., a/k/a Cooper Industries, Ltd., and Cooper Tools, Inc., to exclude the testimony of plaintiffs' expert, Lester B. Engel, P.E., and in the alternative, to strike Engel's supplemental report dated June 10, 2008. Also pending is defendants' motion for summary judgment. Defendants request oral argument on both motions. Plaintiffs, James and Brenda White, oppose defendants' motions. Defendants' motion to exclude and alternative motion to strike are denied, and their motion for summary judgment is granted in part and denied in part.
This case arises out of an accident that occurred while Mr. White was working as a forklift mechanic at Herc-U-Lift. On February 19, 2004, Mr. White set out to repair a forklift by suspending its fork carriage assembly with a chain manufactured by defendants. While Mr. White was working underneath the suspended carriage assembly, two links of the chain broke. The carriage assembly fell onto Mr. White, causing injury to his abdomen, pelvis, and legs. Plaintiffs sued defendants, alleging strict liability in tort and loss of consortium.*fn1 The facts taken in the light most favorable to plaintiffs, the nonmoving parties, are as follows.
On the morning of February 19, 2004, Mr. White's supervisor, Chuck Van Hofwegen, asked him to repair a forklift that had an oil leak in its lift cylinder. Defendants' Statement of Undisputed Material Facts (DSUMF), Docket 54 at ¶ 22. In order to access the lift cylinder, Mr. White had to move the carriage assembly out of the way, which he could do either by removing the carriage assembly from the forklift or by raising it to an upright position and securing it with two steel chains, an overhead crane, a combination of chains and solid wood blocks, or a single chain. DSUMF at ¶¶ 23-30. Mr. White chose to raise the carriage assembly and secure it with a single chain because this was the common practice at Herc-U-Lift. Video Deposition of James D. White (White Deposition), Docket 58-3 at 76-77.
Mr. White selected a 3/8" x 16' Grade 43 welded eye grab hook assembly manufactured by defendants (the failed chain)*fn2 from a selection of chains in the Herc-U-Lift shop, visually inspected it, and wrapped it around the left side of the forklift's mast so that one of the grab hooks was attached to a link and the other grab hook was left to dangle. DSUMF at ¶¶ 1-3, 36-38. Then he turned off the forklift's engine and released the pressure from the forklift's hydraulic system, putting the full weight of the carriage assembly on the chain. White Deposition at 81-82.
After securing the carriage assembly with the failed chain, Mr. White began working on the cylinder. He removed the primary feed hose from the fitting, but had problems removing the fitting itself. He unsuccessfully tried to spin the fitting out and then to raise the cylinder with a pry bar to create enough clearance to pull the fitting out. After Van Hofwegen advised Mr. White that a roll pin might be securing the fitting, Mr. White located the roll pin and observed that it looked rusted in. So he hammered on the mount bracket around the roll pin to break the rust loose, and was able to lift the cylinder about one-eighth of an inch. He attempted to pry out the cylinder, but the pry bar kept slipping. Eventually, Mr. White got out from under the carriage assembly, retrieved a different pry bar and some cardboard to place on the floor below the carriage assembly, went back under the carriage assembly, attempted to use the new pry bar, and started to get up to find a nylon strap with which to lift out the cylinder. At that point the failed chain broke and the carriage assembly fell onto Mr. White. White Deposition at 82-90.
Both parties have retained expert witnesses to explain how the failed chain broke. Plaintiffs retained Engel, a metallurgical engineer, to serve as a testifying expert and timely disclosed his expert report on August 30, 2007 (2007 Report). See Engel 2007 Report, Docket 59-4. Because the reliability of Engel's testimony is at issue, the court will discuss his opinions in detail. The thrust of Engel's testimony is that the chain failure resulted from defects in one or more of the failed chain's links. Engel's 2007 Report indicates that he conducted a visual examination, Rockwell B hardness testing, and a metallographic examination of the failed chain. Engel also conducted load testing on an exemplar chain. Engel found that the failed chain failed at two links positioned one link apart. Both links exhibited ductile shear fractures. Engel found no evidence of fatigue fractures or prior cracking in the failed links. One of the failed links appeared to have experienced a bending load on its side, leading Engel to conclude that the hook had been attached to that link. Only a few links had been elongated slightly over the life of the failed chain, indicating that the failed chain had not been exposed to severe overloads during its lifetime. Engel also found that the hardness of the failed and unfailed links was typical of links of that type. Load testing of the exemplar chain showed that a typical Grade 43 chain exhibited breaking strengths that exceeded the specified minimum even when tied in a knot around a sharp cornered object.
Engel determined that the failed chain was supporting a load of only 45 percent of its maximum working load and 15 percent of its minimum breaking force requirement at the time of the accident. Even with the observed wear, the failed chain would not be expected to break with such a light load. Based on the ductile shear fracture failure mode of the failed links and the lack of evidence of a fatigue fracture or other unusual condition in the failed chain, Engel concluded that the root cause of the failure was a defective and unreasonably dangerous chain.
Defendants deposed Engel on January 17, 2008. Engel testified that he believed the chain failure was caused by a material defect in the material of the failed chain, but was unable to define that defect. Deposition of Lester B. Engel, P.E., Docket 59-14 at 205-06. He agreed that he had conducted all of the tests generally accepted by metallurgists as tests designed to find defects in materials, and that these tests did not reveal any defects with the materials. Engel Deposition at 206.
Counsel for defendants asked Engel whether there was a second hypothetical explanation of how the chain failed, that is, that the failed chain was somehow severely overloaded. See Engel Deposition at 191. Engel agreed that a chain may fail because it experiences a greater load than it was designed and manufactured to withstand as well as because some links are weaker than the others. Engel Deposition at 187. Engel admitted that the testing of the links of the failed chain did not reveal any reasons why the links should be weaker, making the overloading alternative more reasonable. Engel Deposition at 187. Engel stated, however, "[b]ut then you have -- the other part of that is that there's something else about those links that we've not figured out that makes them problematic." Engel Deposition at 187-88. Engel later testified that he did not consider the overloading hypothesis a true alternative in this case because there were no facts suggesting an excessive load. Engel Deposition at 191. Because the carriage assembly was static and weighed only 2,430 pounds, Engel concluded that the failed chain was not overloaded. Engel Deposition, Docket 72-2 at 199-200. He agreed that he was unable to conceptualize a way in which the failed chain carried a load of greater than 2,430 pounds at the time of the accident. Engel Deposition at 193.
Engel also testified that it remained his opinion that the failed chain failed at two links positioned one link apart. He admitted that it was "not absolutely clear just which link went first," and that he did not have an opinion to a reasonable degree of engineering certainty as to which link failed first. Engel also did not have an opinion to a reasonable degree of engineering certainty as to whether the failed link that opened up at 42 degrees was hanging free and not under any load before the accident occurred. Engel Deposition at 183.
Defendants retained as a testifying expert Salvatore C. Malguarnera, Ph.D., P.E., a mechanical engineering technical consultant. Malguarnera wrote a report dated April 21, 2008, in which he addressed Engel's expert opinions and described testing that showed how the failed chain may have become overloaded. Docket 59-12. Malguarnera concluded that a load of 2,400 pounds can break a new 3/8-inch Grade 43 chain if it is applied in a rapid or dynamic way. Plaintiffs deposed Malguarnera on May 12, 2008. See Deposition of Salvatore C. Malguarnera, Ph.D., P.E., Docket 58-8. Malguarnera testified that if the mast of a forklift fell three to three and a half feet, it could break a new Grade 43 chain. Malguarnera Deposition at 18. He explained that his "dynamic loading" theory explained how a 2,400 pound load could have broken a 3/8-inch Grade 43 chain that did not have any defects. Malguarnera Deposition, Docket 65-2, Ex. C at 85-86.
Engel wrote a supplemental report dated and served on defendants on June 10, 2008 (2008 Report), one week after the close of discovery. See Engel 2008 Report, Docket 59-11. A significant portion of Engel's 2008 Report discussed Malguarnera's testing and results. Engel examined the exemplar chains from Malguarnera's testing and described the links in detail in his report. Engel also provided several reasons why Malguarnera's dynamic loading theory did not explain how the failed chain broke. Based on the orientation of the links in the incident chain, Engel concluded that the failed link attached to the hook was the first link to fail. The other failed link was part of the free end of the chain at the time of the accident, and Engel opined that it failed after becoming entangled in the lift truck components as they fell. Malguarnera's chain testing, however, never resulted in a link failure at a grab hook attachment. Based on Malguarnera's testing, Engel concluded that if the failed chain had failed as a result of dynamic loading, it would have failed where the chain wrapped around the lift truck structure, not at the grab hook attachment. Further, there was no evidence that the carriage assembly was positioned in a way that could have created a dynamic load on the chain. Finally, the links of the failed chain did not show significant elongation, but measurement of the chains from Malguarnera's testing showed that chain links elongate when dynamically loaded.
Engel concluded his 2008 Report with further discussion of the failed chain. He explained that the first link to fail, the one attached to the hook, became significantly deformed before finally failing. The deformation of a link happens over time, and should only occur when the load exceeds the working load limit. A defective chain link with a localized discontinuity, low yield strength, or low elongation, however, can become deformed at much lighter loads. Engel stated that he could not determine whether there was a discontinuity in the failed link. But, "[a]lthough no specific defective properties could be identified, all of the evaluation results and accident history support that the chain failure was the result of a defective chain link." Engel 2008 Report at 5.
Defendants' experts, on the other hand, opine that the failed chain was not defective. Brian D. Todd, metallurgical engineer and defendants' manager for Quality and Metallurgical Services, performed a non-destructive inspection of the failed chain and concluded that the failure was caused by an overload condition. He found that both broken links showed ductile shear type fracture surfaces, which happens when steel is overloaded. Todd also examined a metallurgical cross section of the failed chain, and concluded that the microstructure of the steel was typical and that there were no defects in material or manufacture. Finally, Todd found that the chain exhibited damage, wear, and tear consistent with being in service for several years. He found that the extent of the wear on some of the links exceeded the out-of-service condition for thickness as provided in the National Association of Chain Manufacturers "Welded Steel Chain Specifications" and in defendants' literature, so that the failed chain should have been removed from service before Mr. White used it. Todd Report, Docket 34-19 at 4-5.
Defendants also retained Dave Kramer, P.E., who examined the failed chain and concluded that there were no flaws or defects in the chain. He also found that "[t]he failure of two links by ductile shear along with the bending and gouging of adjacent links cannot be explained by static loading. This failure can be explained by a sudden impact load such as the carriage dropping and impacting a slack chain." Like Todd, Kramer opined that the pre-accident abrasive wear and gouging of the failed chain was severe enough that it should have been taken out of service. Kramer Report, Docket 58-14 at 3.
In addition to their metallurgical engineering experts, defendants retained two mechanical engineering experts to investigate possible causes of the accident. As previously discussed, Malguarnera proposed the dynamic loading theory. In his opinion, "[t]he only conclusion that can be reached based on the scientific evidence is that the chain . . . failed because of the rapid descent of the unrestrained section of the mast of the forklift that Mr. White was working on and not because of some 'mysterious' defect." Malguarnera Report, Docket 58-6 at 3. Malguarnera also concluded that the failed chain was not defective in design or manufacture, the failed chain was in unserviceable and unsafe condition and should not have been in use at the time of the accident, and that Mr. White did not secure the carriage assembly in accordance with the directions contained in the forklift service manual. Malguarnera Report, Docket 58-6 at 3-4. Likewise, James L. Suhr, P.E., concluded that "[t]he nature of the failure indicates unidentified loading in addition to the tensile load imposed by the mast." Suhr Report, Docket 58-4 at 4. Suhr did not offer an opinion on the source of the "unidentified loading."
I. Exclusion of Engel's Expert Testimony
Defendants move to exclude Engel's testimony as unreliable under Daubert and Federal Rule of Evidence 702. In the alternative, defendants move to strike Engel's 2008 Report as ...