Commercial Litigation and Arbitration

Spoliation — No Adverse Inference Sufficient to Avoid Summary Judgment Generated by Loss of Evidence Irrelevant to the Causation Problem That Led to Grant of SJ

Vaughn v. Konecranes, Inc., 2016 U.S. App. LEXIS 4061 (6th Cir. Mar. 1, 2016):

The essential question is one of causation in this diversity action arising out of an accident on a job site in Paris, Kentucky. The case is very fact-intensive. Plaintiff, George Vaughn, was injured when an overhead crane moved a piece of equipment on which plaintiff was working, pinning his foot. Plaintiff contends that defendant Konecranes, Inc. was negligent in repairing and maintaining the crane and other equipment, specifically the radio system used to maneuver the crane. Because plaintiff did not produce any evidence that Konecranes' negligence was the proximate cause of the accident, we affirm the district court's grant of summary judgment to Konecranes.


Plaintiff is a 14-year employee at Central [*2]  Motor Wheel of America, Inc., in Paris, Kentucky. Central Motor Wheel produces automotive parts such as aluminum wheels. On May 8, 2012, plaintiff and a coworker, Mr. Bashaw, were performing maintenance on die sets. The die sets are comprised of top and bottom parts that fit together, between which sheets of metal are inserted to press out forms. The die set is attached to a crane with an attached hoist and trolley, allowing it to move the set horizontally or vertically.1 Plaintiff used a radio remote transmitter2 to lift the top half of a die set off of the bottom half so that he could inspect the surfaces and tighten the components of the die set. After inspection, the top half would be lowered to the bottom half and bolster pins located in the top half would align with the guides in the bottom half for reassembly.3

1   The "bridge" is that part of an overhead crane consisting of girders, trucks, end ties, walkway and drive mechanism that carries the trolley and travels in a direction parallel to the floor. The hoist is the part of the crane that lifts the load vertically off the floor.

2   The radio system controlling the crane is comprised of a transmitter and a receiver. The transmitter resides [*3]  within the remote operated by a person on the ground. The receiver is located on the crane bridge 40 feet above the floor of the facility. The remote sends radio signals of a certain frequency that are detected by the receiver on the crane bridge, telling it which way to move the crane. The receiver contains a relay or contactor. (When a relay is used to switch a large amount of electrical power through its contacts, it is designated as a "contactor." The terms "relay" and "contactor" are often used interchangeably.) A "contactor" opens and closes an electric power circuit. The most common industrial use for contactors is the control of electric motors such as the one used to power the overhead crane in this case. Contactors typically have multiple "contacts," and when those contacts are open, power cannot reach the motor. If the contactor becomes fused or stuck in a closed position, the power to the motor cannot be shut off.

3   The overhead crane was originally manufactured by Demag Cranes in 1993. Since the installation at Central Motor Wheel in 1997, the crane had been modified considerably, including the addition of a remote-control radio system manufactured by Hetronic USA and installed [*4]  in 2006, and a hoist and pulley mechanism attached to the crane manufactured by defendant Konecranes and installed in April 2012, shortly before the accident.

Plaintiff and Bashaw were on opposite sides of the die set. Plaintiff had set the radio remote on an adjacent die set while he was working on the die set involved in the accident. Bashaw was manually steadying the top half of the die set to assist plaintiff. The evidence is in dispute as to whether plaintiff handed the radio remote to Bashaw or Bashaw retrieved it from the adjacent die set, but it is undisputed that plaintiff asked Bashaw to use the remote to lower the top half while plaintiff guided it to align with the bottom half. Bashaw either placed the remote around his waist using the attachment belt provided for that purpose or he held it in his hand while lowering the top half of the die. The pins entered the guides but became stuck short of full insertion due to misalignment. Bashaw testified that if he did not already have the belt on, he donned it at this point so that he could use both hands to free the jammed pins. He testified that as he attempted to raise the top half of the die, the crane bridge drive "spontaneously" [*5]  activated, moving the crane and dragging the die set on which the two men were working across the floor. Bashaw testified that he used the remote to reverse the direction of the crane without success. Plaintiff, who had his hands on the die set, felt it begin to move toward him. He testified that it was only moving horizontally, not vertically. Bashaw testified that he continued to manipulate the remote in order to try to move the crane in the opposite direction to no avail. A coworker, Mr. Curtis, was walking into the shop and testified that he saw the die set moving toward plaintiff and saw Bashaw operating the remote in an apparent effort to change its direction. The record is in dispute as to whether anyone tried to activate the emergency stop button or turn off the crane.

The crane moved the die set until further motion was impeded by an adjacent die set. Plaintiff's foot was caught between the two die sets. The witnesses testified that the crane motor continued to run until the "main conductor disconnect" switch was activated by another employee. Plaintiff managed to extricate his foot, but he sustained serious soft-tissue injuries to his foot for which he received medical attention. [*6]

At the time of the accident, plaintiff's employer, Central Motor Wheel, had a contract with defendant Konecranes to maintain its cranes, including the one involved in the accident. Pursuant to this contract, Konecranes conducted scheduled maintenance and performed necessary repairs. The day after the accident, Konecranes sent two technicians, Chris Campbell and Steve Lawson, to Central Motor Wheel to inspect the crane and its components. The technicians tested the crane, including testing of the radio control system. They found nothing wrong with the system, but removed it and replaced it with a new control system. Konecranes' Service Report from May 9, 2012, the day after the accident, states:

   Accessed crane. Removed radio control systems. Radio to be referred to Hetronics [sic] for evaluation. Inspected radio wiring back to bridge; nothing abnormal noted. Removed Bridge reversing and high speed contactors. . . . .

Konecranes Service Report (May 9, 2012). In addition to sending out technicians to examine the crane and its components, Konecranes also conducted an investigation into the accident. Konecranes concluded that the accident was the result of either "faulty radio control or operator [*7]  error." Konecranes Accident Investigation Product Incident Report Form, at 5 (May 10, 2012). As remedial measures, Konecranes installed a new emergency stop mechanism and a new radio control system.

The radio control system removed from the facility by Konecranes' technicians the day after the accident was sent to Hetronic USA, the original manufacturer of the radio system, for evaluation and testing. Hetronic prepared a service report after testing the radio control system. Under the "System Failure Description," the report states, "operator stated bridge started running by itself. No other possible cause could be found to explain the issue." Hetronic Service Report, at 1 (May 2012). Under the "System Repair Description," the report states:

   5/22/12 Sent in [transmitter and receiver]. Found [transmitter] to have broken lower housing. Replacing lower housing. Replacing missing rubber cap. Also replacing out of date battery with two new batteries. Could not replicate BRIDGE function moving on its own. Performed tests using computer simulator, range test, extreme environment heat/cold test, and individual output test. No evidence of uncontrolled movement could be replicated. Could have [*8]  possible matching or cable harness problem. Range function tested. IN Returning unrepaired per customer request 7/16/12 EO

Id. The Hetronic service report states that the radio system was to be returned to Konecranes "unrepaired per customer request." Id. Konecranes says that it cannot locate the removed bridge contactors, but it is unknown whether they were misplaced by Konecranes or Hetronic failed to return them to Konecranes after testing.

Plaintiff's employer, Central Motor Wheel, also conducted its own internal investigation into the accident. It found that the failure of plaintiff and his coworker to follow company procedures by leaving the radio remote "energized" while the crane was not in use may have contributed to the accident. Central Motor Wheel also concluded that a "potential failure in the remote control mechanism of the Demag crane" and the "poor layout of die storage" were conditions that "could have caused [the] injury." Central Motor Wheel Accident Report, at 2 (May 15, 2012).

Plaintiff filed suit in Kentucky state court against only Konecranes, alleging negligent repair, failure to warn, and product liability for the manufacture, design, sale and delivery of the [*9]  crane. Konecranes removed the action to federal court based on diversity jurisdiction and filed third-party complaints against Demag, the manufacturer of the crane, Hetronic, the manufacturer of the radio control system, and Central Motor Wheel, plaintiff's employer, for apportionment and indemnification. Demag and Hetronic were dismissed by the district court, but it then granted summary judgment in favor of Central Motor Wheel on Konecranes' common--law indemnity claims but in favor of Konecranes on its contractual indemnity claims. Memorandum Opinion and Order (May 29, 2015).4

4   This decision was also appealed to our Court. It is docketed in Case No. 15-5690.

The parties conducted substantial discovery concerning the accident and subsequent investigations on the crane and its component parts. In October 2014, the district court granted partial summary judgment to Konecranes on plaintiff's product liability claim. Memorandum Opinion and Order Granting Partial Summary Judgment to Konecranes (Oct. 2, 2014). The claims against Konecranes for negligent repair, failure to warn, and product liability for the Konecranes-brand hoist and trolley components of the crane remained. Id. at 6-7.

Plaintiff's expert, [*10]  Frederick Heath, submitted two reports addressing the causation issue, both of which were excluded by the district court. Memorandum Opinion and Order Excluding Expert (Apr. 13, 2015). Finding no genuine issue of material fact on the remaining portion of plaintiff's product liability claim, and finding that plaintiff failed to establish the causation element of his negligence claim, the district court granted summary judgment to Konecranes. Memorandum Opinion and Order Granting Konecranes' Motion for Summary Judgment (Apr. 15, 2015). The plaintiff filed a motion to set aside the judgment under Federal Rule of Civil Procedure 60(b) that was denied. Memorandum and Opinion Denying Rule 60(b) Motion (May 26, 2015).

Plaintiff appeals the grant of summary judgment on the negligence claim, the district court's order excluding his expert, and the order denying his motion to set aside the judgment under Rule 60(b). Plaintiff does not pursue the dismissal of his product liability claim on appeal. On appeal, plaintiff contends that the district court (1) abused its discretion by excluding his expert's report; and (2) erred in evaluating plaintiff's claim for a "missing evidence" or spoliation adverse inference concerning causation.



On appeal, plaintiff specifically challenges the exclusion of his expert's reports and the rejection of his argument that he would be entitled to a spoliation instruction at trial. We agree [*21]  with the district court's rulings on both of these issues and discuss them briefly below. Even if we were to admit the expert's reports, and even if we were to assume that plaintiff would receive a spoliation instruction at trial, we would still affirm the judgment of the district court.


B. The Missing Evidence Does Not Warrant a Presumption of Causation

After his expert's reports were excluded, plaintiff argued that he should survive summary judgment because he would be entitled to a "missing evidence" instruction at trial. Plaintiff contends that such an instruction would allow an inference that if the missing bridge contactors could be found, their condition would show why the crane moved independently.

Konecranes concedes that it does not know why the contactors are missing, or who or which company misplaced them, but, regardless of what happened to them, plaintiff has not adduced enough evidence to go to a jury with a theory that fused contactors caused the accident. Absent evidence that failure of the contactors caused the crane to move, their disappearance alone is not enough for plaintiff [*27]  to survive summary judgment. Konecranes also correctly points out that absent any evidence of destruction or bad faith with a culpable state of mind, which is not alleged, plaintiff is not entitled to an adverse inference about causation from the missing parts. Beaven v. U.S. Dep't of Justice, 622 F.3d 540, 553 (6th Cir. 2010). We agree. Even with a missing evidence instruction, it is unlikely that a jury could find by a preponderance of the evidence that the radio control system was the cause of the accident. See Whitt v. Stephen Cty., 529 F.3d 278, 284-85 (5th Cir. 2008). There simply is not sufficient evidence for a jury to draw a reasonable conclusion as to why this accident happened. The district court was right to conclude the case as it did after careful consideration.

Accordingly, we conclude that there is insufficient evidence to support two essential elements of the negligence claim, breach and causation, and affirm the judgment of the district court.

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