Sikora v. AFD Industries, Inc.

221 F. Supp. 2d 920, 2002 U.S. Dist. LEXIS 18277, 2002 WL 31103483
CourtDistrict Court, N.D. Illinois
DecidedSeptember 18, 2002
Docket98 C 1116
StatusPublished
Cited by1 cases

This text of 221 F. Supp. 2d 920 (Sikora v. AFD Industries, Inc.) is published on Counsel Stack Legal Research, covering District Court, N.D. Illinois primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Sikora v. AFD Industries, Inc., 221 F. Supp. 2d 920, 2002 U.S. Dist. LEXIS 18277, 2002 WL 31103483 (N.D. Ill. 2002).

Opinion

MEMORANDUM OPINION AND ORDER

MORAN, Senior District Judge.

Plaintiff brought this product liability action against a manufacturer and a distributor of elevator cables, and defendants now move to bar testimony of plaintiffs proposed expert, Richard Bertz. For the following reasons, defendants motions are denied.

BACKGROUND

Plaintiff was allegedly working as an elevator mechanic’s helper for Montgomery Elevator Company (Montgomery) on April 30, 1993. He was scraping the outer surfaces of elevator cables in a Chicago hotel when his right arm and a portion of his left hand became trapped between a cable and a sheave, causing their amputation. The cables, manufactured by Verto Staalkabel B.V. (Verto) and distributed by AFD Industries, Inc. (AFD), are comprised of numerous strands of metal wires that are wrapped around a natural fiber core. During manufacture, a factory lubricant is applied to the fiber core and to the outside of the cables. The cables then require additional lubrication throughout their useful life.

The elevators here were installed in February 1992, and prior to the hotel’s opening in March 1993, a black tarry substance (referred to as “gunk” by the parties) began to appear on and be thrown off the cables. Montgomery employees lubricated the cables with one field lubricant, Nylube, and after consultation with AFD and Verto, with another. The gunk persisted, however, and Montgomery asked that the cables be replaced. AFD and Verto refused to replace all the cables, instead offering to remove the cables from one of the elevators, elevator P6, for examination. No agreement was reached. Plaintiff was attempting to remove the gunk from the cables in elevator P6 when he was injured. All of the cables were then replaced in October 1993, and the problem did not recur.

Plaintiffs proposed expert Richard Bertz has 31 years of elevator industry field experience, including as a mechanic, *922 estimator, project engineer, sales manager, and consultant. He has worked with various elevator code enforcement agencies and has published several articles on elevator technology. In preparing his report, Bertz examined photographs of the cables and read testimony from people who had examined and worked with the cables. He compared these observations against his own knowledge, as well as with elevator industry literature.

Bertz asserts that there was excessive wear early in the life of the cables, shown by their loss of diameter. He also finds that two processes had taken place simultaneously: rouging and the buildup of a wet tarry substance. Rouging occurs when the fiber core of a cable dries, particles of steel slough off, and a fine red dust is cast from the cable. He theorizes that the gunk buildup was more likely than not created by excessive depletion of factory applied lubricant.

According to Bertz, the fact that the cables were so dry as to cause rouging and at the same time able to throw off a wet lubricant could only mean that the cables were manufactured defectively. He knows of no error in the field that would cause this simultaneous condition. He proposes that more likely than not there was either incompatibility between the core fiber and core lubricant or improper factory control of lubrication.

Bertz’s findings lead him to four main conclusions: (1) that the elevator ropes were in a worn condition when they were inspected two weeks before plaintiffs injuries; (2) that defendants were negligent in recommending and applying a specific field lubrication to the cables at the inspection; (3) that the simultaneous rouging and gunk throw-off were caused by a manufacturing defect; and (4) that a manufacturing defect and/or defendants’ negligence were the proximate cause of plaintiffs injuries.

DISCUSSION

Defendants challenge portions of Betz’s report and subsequent deposition testimony for failing to comply with the requirements of Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993), and Federal Rule of Evidence 702. Under Rule 702, our task is to screen out unreliable and irrelevant testimony. Walker v. Soo Line R.R. Co., 208 F.3d 581, 590 (7th Cir.2000); Kumho Tire Co., Ltd. v. Carmichael, 526 U.S. 137, 148, 119 S.Ct. 1167, 143 L.Ed.2d 238 (1999). In determining reliability, we ask if the expert is qualified in the relevant field and examine the methodology used to reach conclusions. Kumho, 526 U.S. at 153, 119 S.Ct. 1167.

A person can be qualified in a field through knowledge, skill, experience, training, or education. F.R.E. 702. Defendants do not dispute Bertz’s experience in elevator maintenance and do not challenge his qualification to opine about the alleged worn condition of the cables in April 1993. They do, however, challenge his qualifications to opine about the causes of the gunk formation and about whether the cables were defectively manufactured.

The gunk formation at issue does not often occur, and there is limited literature about that. Here we have someone who has been working in the elevator industry for over 30 years, with extensive experience in maintenance, who has never come across it. He has, however, come across a wide variety of cable problems in the field, including materials that developed on cables after manufacture. While Bertz may not have been familiar with this particular type of gunk, his extensive background in elevator operation, maintenance and safety qualifies him to speak on what are and are not its probable causes.

Defendants also point out that Bertz’s background does not include any experi *923 ence in cable design or manufacture. It is illogical, they argue, for someone to state with any certainty that a product was manufactured defectively if he does not have any experience or prior education in the manufacturing or design process. But Bertz reaches his conclusion from a different angle. His experience in the maintenance field guides his conclusion that the alleged condition of the cables did not arise from an error in the field, which in turn leads to his conclusion that the error must have occurred in manufacture. Since elimination of alternatives is a proper method of examination, Bammerlin v. Navistar International Transportation Corp., 30 F.3d 898, 902 (7th Cir.1994), his experience in the field, which covers alternatives, qualifies him to provide this opinion.

We next turn to the issue of whether the methodology Bertz uses to reach his conclusions is reliable. Bertz’s opinion was formed by comparing the evidence before him against the knowledge he has gathered working in the elevator industry.

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Cite This Page — Counsel Stack

Bluebook (online)
221 F. Supp. 2d 920, 2002 U.S. Dist. LEXIS 18277, 2002 WL 31103483, Counsel Stack Legal Research, https://law.counselstack.com/opinion/sikora-v-afd-industries-inc-ilnd-2002.