[00:00:00] Speaker 04:
You may proceed.

[00:00:01] Speaker 04:
Thank you very much, Your Honor.

[00:00:02] Speaker 04:
May it please the court and counsel?

[00:00:04] Speaker 04:
My name is Spencer Kelly for the appellant, Mark Coonrod.

[00:00:08] Speaker 04:
I'd like to reserve five minutes, if that's OK, for rebuttal.

[00:00:12] Speaker 04:
We're here to ask that the district court's granting of summary judgment be reversed.

[00:00:16] Speaker 04:
This case stems from an issue, an incident that took place when a hoist manufactured by defendant

[00:00:24] Speaker 04:
CMCO and serviced by con cranes fell and landed on the head of Mr. Coonrod.

[00:00:32] Speaker 04:
During the investigation into what happened, it was found that there was a screw or a bolt that was about half an inch too long that was in the hoist that had come unscrewed or became loosened and caused the hoist to fall.

[00:00:48] Speaker 04:
The claim was brought against both CMCO as a strict liability, products liability case, and against CONCRAINS for failure to inspect and properly service the hoist

[00:01:04] Speaker 04:
Summary judgment was granted by the district court because the district court indicated that Coonrod could not meet its prima facie case for a strict liability and that it failed as a matter of law.

[00:01:17] Speaker 04:
In doing so, the district court primarily focused

[00:01:21] Speaker 04:
on the seaboard case indicating that the seaboard case was on point because in the seaboard case there was a fuse that was installed in a car and that fuse was beyond the wattage what should have been in the car and therefore there was a fire that took place and caused damages.

[00:01:40] Speaker 04:
Appellant Coonrad believes that the Seaboard case is distinguishable for a number of reasons.

[00:01:45] Speaker 04:
The main reason is because the warning in the Seaboard case for the defendant in that case was said that you should not use a fuse that was beyond the wattage.

[00:01:57] Speaker 04:
Here, there was not an adequate warning.

[00:02:00] Speaker 04:
The only warning that was presented that was in the initial hoist manual was use manufactured parts.

[00:02:08] Speaker 04:
So there was no specific warning about whether or not a screw that was longer than the 0.75 inches.

[00:02:15] Speaker 00:
We only get to the warning issue, though, if it was foreseeable that someone would use a nonconforming screw, right?

[00:02:23] Speaker 04:
That's correct, and that's where we rely upon our expert.

[00:02:27] Speaker 04:
Our expert in the case indicated that because screws and bolts are interchangeable, it was important and necessary for CMCO to specifically warn individuals, and that was foreseeable, for someone to service that hoist, that it's foreseeable that they could use a nut or bolt that was too long that could cause this problem.

[00:02:48] Speaker 02:
So your evidence of foreseeability is that your expert testified that these are interchangeable?

[00:02:56] Speaker 04:
That's correct, Your Honor.

[00:02:57] Speaker 02:
Did you have any other evidence of foreseeability?

[00:03:02] Speaker 04:
Well, we rely primarily on our expert's foreseeability as far as regarding the specific size of the bolt.

[00:03:10] Speaker 02:
Well, he didn't say the size was really the problem.

[00:03:13] Speaker 02:
He said it was the lack of loctite.

[00:03:15] Speaker 04:
That was one of the issues, yes.

[00:03:17] Speaker 04:
One of the issues was the failure to use the Loctite on the bolt, and then also the failure to warn the users of the product to use the product.

[00:03:26] Speaker 02:
I understand that, but I'm trying to understand, he's saying that, and I'm trying to understand his foreseeability argument or his theory, that when a bolt of standard size is needing replacement,

[00:03:44] Speaker 02:
You think what he's saying is that someone on the ground who's using this machine or someone who's repairing the machine may not necessarily go to the instructions in the manual and would just pick up a bolt that's available and screw it in?

[00:03:59] Speaker 02:
Is that what he's saying?

[00:04:01] Speaker 04:
Well, I think that brings up a good question.

[00:04:04] Speaker 04:
I think there's two parts to that question, right?

[00:04:07] Speaker 04:
The first part is whether or not it was foreseeable for them to use an interchangeable bolt and whether or not there was a warning in the actual manual that said, this is the size bolt that you need to use.

[00:04:18] Speaker 04:
And so what I think our expert is saying essentially in the case is that

[00:04:22] Speaker 04:
It is foreseeable for an individual that's servicing the hoist unit to look into the manual and see what size bolt or screw should be used to install in the specific hoist.

[00:04:35] Speaker 04:
And that warning was not there.

[00:04:37] Speaker 04:
And so that's where there was a case that was in our reply brief, the Stewart matter, that's directly on point.

[00:04:44] Speaker 04:
In the Stewart case, what happened was there was bolts that were installed in reverse order because there was no adequate warning.

[00:04:51] Speaker 04:
And as a result, there was an injury that took place.

[00:04:54] Speaker 04:
And in that case, the appellant was able to survive a motion for dismissal in that case, not a summary judgment, but basically the same standard, because there was a failure to adequately warn regarding how the bolts were to be installed.

[00:05:08] Speaker 04:
And in this case, there was no warning.

[00:05:10] Speaker 00:
So I thought everyone agreed, though, that if Loctite had been used, the fall wouldn't have happened.

[00:05:17] Speaker 04:
Yes, that's correct.

[00:05:19] Speaker 00:
And so why was it foreseeable that the Loctite wouldn't be used?

[00:05:24] Speaker 00:
Where's the evidence that that is?

[00:05:26] Speaker 04:
Well, and again, we go back to that same failure to warn, Your Honor.

[00:05:30] Speaker 00:
Yeah, but you already agreed we don't get the failure to warn unless it's foreseeable.

[00:05:33] Speaker 00:
And I couldn't find where it was foreseeable, where anyone testified that it was foreseeable that someone would not realize they needed to use Loctite.

[00:05:40] Speaker 04:
Yeah, again, that's where we rely upon our expert, Your Honor.

[00:05:43] Speaker 00:
Where do the experts say that people foreseeably wouldn't use Loctite?

[00:05:46] Speaker 04:
No, what I think our expert was saying was that it was important in the warning to indicate that loctite was required.

[00:05:54] Speaker 00:
Right, but we only get to that if it's foreseeable that someone might not use loctite.

[00:05:59] Speaker 04:
Right, but that's where we're trying to argue that if the bolt were to be replaced, that that's when the warning would come into place.

[00:06:11] Speaker 00:
But doesn't the case law say we only talk about whether the warning is adequate if there's a foreseeable replacement that's going to happen?

[00:06:16] Speaker 00:
And so here what I'm asking is how do we even get to the warning if we don't have

[00:06:20] Speaker 00:
Any evidence on your side saying it was foreseeable that someone would put in a screw without loctite?

[00:06:24] Speaker 04:
Okay, yeah.

[00:06:25] Speaker 04:
So where we get to that is where we get into the design defects that were pointed out by our expert.

[00:06:31] Speaker 04:
So specifically that there was only one screw that was installed for this hoist.

[00:06:36] Speaker 04:
And so it was foreseeable that when there was only one screw that was installed that that one screw could fail and that one screw would need to have the adequate warning to explain what size screw would be used and the loctite.

[00:06:47] Speaker 00:
But so that idea that it should have been designed totally differently with three screws or whatever,

[00:06:53] Speaker 00:
I have trouble with that argument, because it just doesn't seem like this device has been falling in other instances.

[00:06:58] Speaker 00:
There's not a safety record of this thing being a problem.

[00:07:00] Speaker 04:
So it's hard for you to win that argument.

[00:07:04] Speaker 04:
And that's where it gets a little tricky for us, Your Honor.

[00:07:07] Speaker 04:
And I can see that point, of course.

[00:07:10] Speaker 04:
What happened in this case is a hoist left CMCO's possession.

[00:07:15] Speaker 04:
It was then serviced by CONCRAINS about a year before this incident.

[00:07:19] Speaker 04:
And we have evidence that the user of the hoist did not touch or even inspect the hoist until the incident happened.

[00:07:27] Speaker 04:
And so, therefore, something happened when CONCRAINS, if it is true, if it's true that CMCO sent this out with the correct size bolt and with the Loctite as it indicates in its arguments, then when CONCRAINS came in and serviced the hoist,

[00:07:44] Speaker 04:
Something happened that bolt was changed.

[00:07:48] Speaker 04:
And that is specifically a question of fact that we believe should have been able to survive summary judgment.

[00:07:52] Speaker 00:
Mr. Court thought that was too speculative, right?

[00:07:54] Speaker 00:
Because, I mean, at least the records from concreants don't say they touched this part.

[00:07:58] Speaker 00:
So we'd have to assume that they did it instead of someone at the facility later.

[00:08:03] Speaker 04:
Right, but we have evidence that no one in the facility, no one at the facility, none of the users of the hoist, in fact, they kind of admitted that they did not inspect the item.

[00:08:14] Speaker 04:
And so we have evidence that that happened.

[00:08:17] Speaker 04:
So the last time someone touched the actual hoist was con cranes.

[00:08:21] Speaker 04:
And essentially what we're asking is that there's a reasonable inference that con cranes may not have

[00:08:27] Speaker 04:
you know, properly notified or put down the correct or what they actually modified when they serviced the hoist.

[00:08:36] Speaker 04:
And again, that's a question of material fact that we believe should be presented to a jury.

[00:08:40] Speaker 02:
Well, let me ask you, was there any evidence

[00:08:43] Speaker 02:
that any person or entity ever serviced or inspected the heist other than congruent.

[00:08:49] Speaker 04:
The only other entity that serviced the heist was ACE, which installed the original heist that was received from CMCO.

[00:08:58] Speaker 04:
CMCO sent the heist to ACE.

[00:09:00] Speaker 04:
ACE installed it using CMCO's

[00:09:02] Speaker 04:
installation packet, and then Concrane was the only other party that touched the hoist before the fall.

[00:09:10] Speaker 04:
There's evidence that the user of the hoist after the incident serviced the hoist, but that's not relevant in regards to what happened.

[00:09:22] Speaker 02:
And did you have a theory as to who installed the wrong screw?

[00:09:26] Speaker 04:
Yeah.

[00:09:29] Speaker 04:
Our theory is, all evidence points to the fact that Concrane's was the last party to touch the hoist.

[00:09:36] Speaker 04:
Right?

[00:09:37] Speaker 04:
So we believe that there's a reasonable inference that could be raised, that con cranes was the last party to touch the hoist.

[00:09:44] Speaker 04:
No one from the user testified that they even touched it or serviced it.

[00:09:50] Speaker 00:
So from the user, was there testimony of the nature every time someone touched it, we made a record of it?

[00:09:58] Speaker 04:
What there was was there was supposed to have been an every 30 day evaluation to look at the hoist to make sure it was still serviceable and the user did not do that.

[00:10:07] Speaker 00:
Right, I understand that but do we have testimony that says something like every time we touch it we write it down so if we had touched it there would be a record or we just have a silence because the fact that there isn't the monthly inspection doesn't tell us that at some point it wasn't creaking and someone changed the screw and

[00:10:25] Speaker 00:
They just didn't write it down, and so we don't have discovery about that.

[00:10:28] Speaker 04:
Yeah, we do not know whether or not.

[00:10:31] Speaker 04:
There's no indication that anyone from the user actually touched the hoist product.

[00:10:35] Speaker 00:
But I guess your answer is no.

[00:10:37] Speaker 00:
There's no policy at the user that every time you touch it, you make a record.

[00:10:40] Speaker 04:
That's right.

[00:10:41] Speaker 00:
So that leaves us with speculation about whether it was the user or concreants, right?

[00:10:45] Speaker 04:
Well, speculation or reasonable.

[00:10:47] Speaker 04:
We would categorize that as a reasonable inference, right?

[00:10:51] Speaker 04:
And that's a specific question of material fact that should allow us to summarize judgment or survive summary judgment.

[00:10:57] Speaker 04:
Whether or not a reasonable jury could find that concreants didn't actually touch it or concreants did touch it, that's the question for material fact that should have allowed us to survive summary judgment.

[00:11:09] Speaker 04:
I'll reserve the rest of my time for rebuttal.

[00:11:21] Speaker 01:
Good morning, Your Honors.

[00:11:21] Speaker 01:
May it please the court, counsel?

[00:11:24] Speaker 01:
Just to set it up before we go in, the intention is that I will discuss many of the design defect issues as well as the negligence claim against my client, Columbus McKinnon.

[00:11:34] Speaker 01:
Counsel for Kona Cranes will address the negligence claim against his client and any remaining questions the court might have about the design defect theories.

[00:11:41] Speaker 05:
Go ahead and state your name for the record.

[00:11:43] Speaker 02:
Oh, I'm sorry Aaron Kinnair from Phillips Lidl for Columbus McKinnon Before going I've got a question for you forget started go right ahead the operators manual directs that only factor factory authorized screws be used to replace the one screw holding the upper hook suspension in place and That the screw be inspected every 30 days to ensure that it's tightly in place and

[00:12:09] Speaker 02:
Unless the owner reviews the operator's manual, how would they know to do that?

[00:12:16] Speaker 01:
Well, Your Honor, this is something that is not only in the operator's manual, but this is something that you would find in the industry standards.

[00:12:22] Speaker 01:
I believe ASME B30.20 is the governing standard there.

[00:12:26] Speaker 02:
So I guess my question is, is it stated anywhere on the machine when a person's looking at that screw that there's something special about that screw they need to be familiar with?

[00:12:35] Speaker 01:
No, Your Honor, there are instructions on the machine to consult the manual, but not specifically to that particular question.

[00:12:43] Speaker 02:
Your client sold more than 63,000 manguard hoists since 2004, is that right?

[00:12:49] Speaker 01:
Yes, that's right, Judge.

[00:12:50] Speaker 02:
What do you believe are the odds that every one of those 63,000 hoist owners and God knows how many operators strictly follows the operator's manual?

[00:13:02] Speaker 01:
Well, Your Honor, it's not a guarantee that everyone does that.

[00:13:05] Speaker 01:
That's certainly something that we would have to agree with you on.

[00:13:09] Speaker 01:
But the manual is there for a reason.

[00:13:11] Speaker 02:
My question is, what are the odds?

[00:13:13] Speaker 02:
Is it 100% that everyone's going to do that?

[00:13:15] Speaker 01:
I certainly couldn't say that.

[00:13:16] Speaker 02:
You'd have to say it's less than 100%, right?

[00:13:18] Speaker 01:
I would.

[00:13:19] Speaker 01:
OK.

[00:13:20] Speaker 02:
What are the odds that when this one screw needs replacement, that every owner and operator will go to the operator's manual?

[00:13:31] Speaker 02:
to see how to replace the screw.

[00:13:33] Speaker 02:
This is a standard screw, too, by the way.

[00:13:35] Speaker 01:
Well, Your Honor, these are industrial equipment.

[00:13:38] Speaker 02:
What are the odds of that happening?

[00:13:39] Speaker 01:
I don't have an answer on that.

[00:13:40] Speaker 01:
Less than 100%?

[00:13:41] Speaker 01:
It would be less than 100%.

[00:13:43] Speaker 01:
But again, these are industrial equipment.

[00:13:45] Speaker 01:
These are not

[00:13:47] Speaker 01:
your everyday I'm not going in using when these are qualified users are supposed to be using these pieces of equipment they're supposed to be the ones making the repairs on them and just on what we seem to be focused on here I want to make clear up front plaintiff in this case has not played a strict liability claim under a failure to warn theory

[00:14:05] Speaker 01:
I see that this is something we're focusing on a lot, but if you were to look at plaintiffs complaint They're pursuing design and manufacturing claims here rather than failure to warn So I do feel this is somewhat misdirected from what the actual claim is in the case.

[00:14:18] Speaker 02:
Let me ask you this What are the odds that all 63 owners and operators those heists inspect?

[00:14:27] Speaker 02:
the screw every 30 days

[00:14:30] Speaker 01:
again your honor i don't have uh... certainty on the odds for you but this is something that you have some certainty that it's less than a hundred percent i had i could say that it would be a bit less than a hundred percent but i can say with certainty that we have no records of any prior incident being reported to us whether via warranty claim legal claim otherwise of any instance where someone has

[00:14:49] Speaker 01:
Failed to either use the correct part in the maintenance of one of these products or where this hoist has Unraveled from the upper hook assembly the screw has come loose that is something I can say with certainty We have no risks of and that is something that's undisputed in this case by the plaintiff appellant as well Let me ask you this if that screw comes on unraveled or broken and it's not in place what happens is

[00:15:16] Speaker 01:
I don't have an answer for that, Judge, because we haven't seen that occur.

[00:15:19] Speaker 01:
What happened in this case?

[00:15:20] Speaker 01:
Well, in this case, we had a screw that was not the appropriate part and was lacking the Loctite adhesive.

[00:15:26] Speaker 02:
My question is, if the screw isn't operating like it should, what happens?

[00:15:30] Speaker 01:
Sorry, could you repeat that?

[00:15:31] Speaker 02:
If the screw doesn't operate like it's intended to operate, what happens?

[00:15:34] Speaker 01:
Well, if the screw doesn't operate and you take out the idea of the loctite and the depth, if it unravels, then presumably the hook could, but that is a secondary issue that would happen.

[00:15:43] Speaker 01:
The lock washer would also have to come loose, the redundancy plate would have to come loose, and then the hook itself would also then have to unravel.

[00:15:51] Speaker 01:
These are situations we didn't have here because our screw was not in place and plaintiff's own expert admits that had the Columbus-McKinnon screw been in place at the time of the accident, and that's one that has this locking adhesive on its threads, this accident never occurs.

[00:16:05] Speaker 02:
If that screw needs replaced, the person replacing it needs to go to the operator's manual to recognize that a screw that fits that hole isn't sufficient.

[00:16:17] Speaker 02:
It needs to be a screw that fits the hole that has Loctite on it.

[00:16:21] Speaker 01:
Well, again, Judge, this is an industrial equipment where someone who is qualified is supposed to be.

[00:16:26] Speaker 01:
I understand.

[00:16:26] Speaker 02:
Is my question the answer?

[00:16:27] Speaker 02:
Is that yes or no?

[00:16:29] Speaker 01:
They would need to know that they used the correct part, yes.

[00:16:32] Speaker 02:
OK.

[00:16:32] Speaker 02:
All right.

[00:16:34] Speaker ?:
Thanks.

[00:16:34] Speaker ?:
OK.

[00:16:34] Speaker 01:
Another issue that I would like to just correct on the record is with respect to the notion of interchangeability that's been discussed.

[00:16:43] Speaker 01:
Plaintiff's expert has not notably said in this case that the subject screw, what we've been calling the subject screw, the one that was in place on the date of the incident, is interchangeable with the Columbus-McKinnon screw.

[00:16:55] Speaker 01:
plaintiffs export makes a generic statement that screws and bolts are usually interchangeable but what he notably does not do is ever say that these two screws are interchangeable with one another and it's our position and what we've submitted to the court that they are not because we're talking about screws of different lengths one is nearly twice the length of the other and again that screw does not have loctite the subject screw that we've been talking about that was in place on the date of the incident well does anyone say that is the length that was the problem

[00:17:22] Speaker 01:
plaintiff's expert says both that the length of the screw is the problem and that the absence of Loctite I thought I thought he said I thought he conceded that the length didn't make a difference is only the Loctite no judge there is

[00:17:36] Speaker 01:
on the correct location for that.

[00:17:39] Speaker 01:
In the opening brief, we have plaintiff conceding that use of too long a screw was essential to the cause of the loss.

[00:17:45] Speaker 01:
I don't have the specific citation for plaintiff's expert, but in one of his declarations, he also does identify that the use of a screw that was too long for the hoist was a cause of the incident here.

[00:17:56] Speaker 01:
He primarily says that the use of a screw that was lacking that locking adhesive on its threads was the essential cause of the loss and says that if the screw had had that adhesive on it on the date of the incident, this incident never occurs, which is what we say entitles us and was why the court correctly granted summary judgment in our favor because that is a concession that if the hoist was as designed, it was using the parts that the hoist is designed to use, it comes the way that it leaves Columbus McKinnon.

[00:18:26] Speaker 02:
Then this accident never occurs and therefore plaintiff cannot carry the prima facie burden of showing that this waste was dangerously Defective at the time it left the manufacturer's hands and just as it was reasonably foreseeable that someone might not follow the instructions in the operators manual about how to replace that screw

[00:18:45] Speaker 01:
Well, Judge, on the topic of reasonable foreseeability, that is where the issue of known risks comes into play.

[00:18:51] Speaker 01:
Again, as we've been discussing today, we've had more than 63,000 of these hoists sold since 2004, and no prior instances where this has occurred.

[00:19:00] Speaker 01:
That goes directly to the issue of reasonable foreseeability.

[00:19:04] Speaker 01:
And we would submit that the evidence shows that this was not reasonably foreseeable, and therefore the court was appropriately granting summary judgment on those issues.

[00:19:12] Speaker 02:
Well, there could be other machines out there that have the wrong screw.

[00:19:15] Speaker 02:
They just haven't fallen down yet.

[00:19:18] Speaker 01:
Judge, that's a hypothetical that I couldn't say one way or the other.

[00:19:21] Speaker 02:
What I'm saying is there could be people or entities using the wrong screws and you just haven't found out about it.

[00:19:28] Speaker 02:
They may happen and they may catch the mistake and they fix it or they just hasn't happened yet.

[00:19:34] Speaker 01:
Certainly we don't know what we have not been informed of, but this is something that we continually do monitor.

[00:19:40] Speaker 01:
Our internal folks are keeping track of any claims that come in to us.

[00:19:44] Speaker 01:
We are tracking this.

[00:19:45] Speaker 01:
We have been since at least 2004 when our records go back to, and no one has ever encountered this issue outside of this case where we know that the part was put in was not one that was approved by Columbus McKinnon.

[00:19:57] Speaker 01:
And Judge, did you have a question?

[00:19:58] Speaker 05:
I just want to make clear.

[00:19:59] Speaker 05:
So when we're referring to the expert's opinion, the plaintiff's expert's, I think you're referring to ER 38.

[00:20:04] Speaker 05:
There's this paragraph 8 where the expert says, my conclusion and opinion is that the hoist failure was due to several factors.

[00:20:11] Speaker 05:
The failure to use Loctite on the subject's screw, the failure to have a torque marker, the use of a screw that was too long.

[00:20:18] Speaker 05:
I think that's the language you're referring to?

[00:20:21] Speaker 05:
Yes, Judge.

[00:20:22] Speaker 05:
Thank you.

[00:20:22] Speaker 05:
Sorry, that's a little loud.

[00:20:25] Speaker 01:
Would that answer both of your questions?

[00:20:26] Speaker 01:
OK.

[00:20:27] Speaker 01:
It did.

[00:20:28] Speaker 01:
Just to continue on then, with respect to the other design defect claims that have been alleged in this case, I think this is something that was correctly dismissed by the district court.

[00:20:38] Speaker 01:
You know, it's a bit of a red herring, these notions that there were additional things that could have been done with the design of this hoist.

[00:20:44] Speaker 01:
we have the testimony here excuse me the evidence here from plaintiff's own expert that had the hoist been as designed on the date of the incident or not having this issue occur that's again with the Loctite so the notion that there should have been additional screws or torque markers we really think those are red herrings that don't go to the issue and that that was correctly rejected by the district court

[00:21:06] Speaker 01:
I do think we probably extensively addressed our views on the foreseeability, and I see my time is up.

[00:21:11] Speaker 01:
So absent any other questions, I will not steal counsel's time and pass it over.

[00:21:16] Speaker 05:
Well done.

[00:21:17] Speaker 01:
Thank you.

[00:21:19] Speaker 05:
She gave you five seconds extra.

[00:21:23] Speaker 03:
Council, Your Honors, thank you.

[00:21:25] Speaker 03:
So as you know from our briefing, our sorry, Adam Murray for Cone Cranes, our briefing tracks Ms.

[00:21:32] Speaker 03:
Connors on the issues of product liability and the statutory defense.

[00:21:36] Speaker 03:
So I just want to address any questions you might have about the negligence claim against Cone Cranes.

[00:21:42] Speaker 03:
So, Coonrod alleged that Conecranes negligently serviced the hoist by doing a number of things that took place before the sale and one thing that took place after the sale, failing to properly inspect the hoist.

[00:21:59] Speaker 03:
The claim itself is a little bit nonsensical since it alleges that cone cranes negligently serviced the hoist, but most of the things that he brought up took place beforehand.

[00:22:10] Speaker 03:
On the one claim that happened after the sale, Coonrod did not dispute that Pierce did not ask cone cranes to inspect the upper hoist assembly, the upper hook assembly.

[00:22:23] Speaker 03:
There are service records at SCR 46 and 50 that list the parts that were used.

[00:22:32] Speaker 03:
Cone Cranes listed all the parts that were used, all the service that was done.

[00:22:35] Speaker 03:
Everything performed, appeared in the invoice.

[00:22:40] Speaker 03:
There's simply no evidence on Cone Cranes.

[00:22:43] Speaker 00:
So we basically have no evidence anywhere about who changed the screw, right?

[00:22:48] Speaker 00:
So we have cone cranes, has these records of the billing that don't say anything about a screw.

[00:22:54] Speaker 00:
They have their inspection records that don't say anything about a screw or anyone touching it.

[00:22:58] Speaker 00:
And so why isn't it 50-50, which of cone cranes?

[00:23:02] Speaker 00:
Why should we assume that it must have been the user instead of cone cranes in that situation?

[00:23:08] Speaker 03:
Well, Judge Freeland, I don't think it is 50-50, because the evidence on our side is the way that cone cranes does service and tracks all the parts that are used and performed.

[00:23:18] Speaker 03:
On their side, there isn't evidence.

[00:23:21] Speaker 03:
So we came forward with enough evidence to show that we didn't touch the hook.

[00:23:27] Speaker 00:
So we have the billing records.

[00:23:29] Speaker 00:
Is there testimony that says we always write down everything we do?

[00:23:33] Speaker 03:
Yeah, there is.

[00:23:34] Speaker 03:
That would be in the declaration of Mike Petrito.

[00:23:38] Speaker 03:
That's in the district court record.

[00:23:41] Speaker 03:
It's docket 57.

[00:23:45] Speaker 03:
So that is Kuhn Crane's approach to doing it.

[00:23:49] Speaker 03:
And if you look through those records that are in the supplemental excerpts, then you'll see that all the parts that were ordered for this repair are listed.

[00:23:59] Speaker 03:
And there's not a single screw or bolt there.

[00:24:05] Speaker 03:
It's also not entirely clear to me that Kuhn Rods is

[00:24:10] Speaker 03:
necessarily appealing this negligence ruling.

[00:24:14] Speaker 03:
There's only a couple of allegations in the opening brief.

[00:24:18] Speaker 03:
I just want to touch on briefly.

[00:24:20] Speaker 03:
One is that the cost of the service was almost 50% of the hoist price.

[00:24:26] Speaker 03:
And from that, Coonrod thinks that you guys should be able to infer that this was a comprehensive servicing.

[00:24:33] Speaker 03:
But that's not really the case.

[00:24:36] Speaker 03:
The only thing that you can infer from the cost of the service is the cost of the service.

[00:24:41] Speaker 03:
And it's undisputed that the service did not involve the upper hook assembly at all.

[00:24:47] Speaker 03:
Cone crane service involved the chain aspect of the hoist.

[00:24:50] Speaker 03:
So if you look at the diagram of the equipment on SCR 106, you can see that you can set this thing down on a table, lay it on its side, open it up and take out all the chain assembly equipment that we worked on and put it back together without even touching the hook.

[00:25:10] Speaker 03:
He also alleges that Cone Cranes was the last person to touch the upper housing, but that can't possibly be true.

[00:25:17] Speaker 03:
The crane was in service for about five months before it came to us for service.

[00:25:23] Speaker 03:
And we fixed it, sent it back on April 1st of 2015.

[00:25:27] Speaker 03:
The accident happened almost 16 months later.

[00:25:30] Speaker 03:
So I think particularly given the lack of evidence on their side, the amount of evidence on our side about what we did, together with the condition of the hook when we got it after only five months, it would not be reasonable to infer that Conecranes was the only person who could possibly have touched the hook.

[00:25:48] Speaker 05:
I guess one question I have, really for all the parties in this case, is that why would someone remove the Loctite screw and replace it with a screw that was too long?

[00:25:56] Speaker 05:
If there's never been a failure of this before, it's always been great, how did this even happen?

[00:26:03] Speaker 05:
Why would someone do that?

[00:26:04] Speaker 03:
There's not really evidence in the record that goes to that question, but what I would suggest you look at is the condition of the equipment when it did come to us for service, that it had been in service for only five months, and the chain mechanism was essentially destroyed.

[00:26:22] Speaker 03:
So there was obviously some very hard use going on of the equipment.

[00:26:27] Speaker 03:
And we fixed it and sent it back, and it worked for another 16 months.

[00:26:31] Speaker 03:
So when that thing operates, it vibrates heavily, is that what you're saying?

[00:26:35] Speaker 03:
That's not necessarily what I'm saying.

[00:26:36] Speaker 03:
When CoonRod used it, it probably vibrated heavily.

[00:26:41] Speaker 03:
What's the distinction?

[00:26:43] Speaker 03:
What are you saying?

[00:26:45] Speaker 03:
I think it's, well, again, this isn't in the record, but if the equipment came back to us just five months after going into service and the chain mechanism was that damaged, that all those parts had to be replaced, then I think

[00:27:03] Speaker 03:
one reasonable inference would be that there was some kind of pretty heavy use going on.

[00:27:08] Speaker 00:
And are you saying it was being used beyond its specifications or something?

[00:27:12] Speaker 00:
Like it's only supposed to be up to 10 tons and they're using it for 20 tons or I don't know what?

[00:27:16] Speaker 03:
No, I wouldn't be suggesting anything that specific.

[00:27:18] Speaker 03:
I'm just trying to come up with a reason why somebody might end up replacing the screw.

[00:27:23] Speaker 02:
So what you're saying is if there's heavy use, that screw is likely to be under greater stress and either break off or come loose even with the Loctite on it?

[00:27:32] Speaker 03:
No, I would think 63,000 units without that ever happening is probably evidence that that's not likely.

[00:27:39] Speaker 02:
So I'm trying to understand what you're saying then.

[00:27:41] Speaker 02:
You're saying the heavy use is the reason you think that this screw needed replacement.

[00:27:45] Speaker 02:
So why would it need replacement if there's nothing wrong with it?

[00:27:47] Speaker 03:
Well, Judge Reza, at this point, I'm just speculating, just like the jury would just be speculating.

[00:27:54] Speaker 03:
The question was, why would someone replace the screw?

[00:27:56] Speaker 03:
And the only reason I can think of is, you know, if there was some kind of heavy use or perhaps they were

[00:28:03] Speaker 03:
Moving the hoist itself from one crane to another.

[00:28:06] Speaker 03:
I don't really know.

[00:28:08] Speaker 03:
It's just speculation.

[00:28:09] Speaker 03:
There's no evidence Okay.

[00:28:11] Speaker 05:
All right.

[00:28:11] Speaker 05:
Thank you counsel.

[00:28:12] Speaker 03:
Okay.

[00:28:12] Speaker 05:
Thank you Thank you very much is there anything in the record that answers the question I asked as to why someone would

[00:28:26] Speaker 05:
I mean, for example, I can't imagine someone would take this thing apart to cannibalize a Loctite screw.

[00:28:32] Speaker 05:
You know, like at my house, remote controls for TVs get cannibalized because they want batteries for a flashlight or vice versa.

[00:28:39] Speaker 05:
I can't see that being the case here.

[00:28:41] Speaker 04:
Yeah, right.

[00:28:42] Speaker 04:
And again, that goes specifically to our question regarding, or to our pleading, which is that there was a design flaw on the actual hoist using that only one screw.

[00:28:51] Speaker 04:
So at some point, and again, we believe that there's a reasonable inference that concreens was the last party to touch the hoist mechanism.

[00:28:59] Speaker 04:
And therefore, because of that, we believe that there's a reasonable inference that that screw was replaced by concreens.

[00:29:05] Speaker 04:
Even though it's not in their record,

[00:29:07] Speaker 04:
or not in their evidence, but no one from the user of the hoist even inspected the item.

[00:29:14] Speaker 04:
And so the answer as to why someone would replace the screw is specifically a question of material fact that we believe that should have survived summary judgment.

[00:29:27] Speaker 05:
But I take it there was no expert testimony or anything of the record just to get down to the core of the question of why would someone do this?

[00:29:33] Speaker 04:
We do not have, we don't have the answer to that question.

[00:29:36] Speaker 04:
And that's where I think a jury would be able to make the reasonable inference that Concrane's was the one who replaced the screw and or the bolt or and or.

[00:29:46] Speaker 04:
that the design of having just one bolt on this hoist, which, as you said, Your Honor, this is a hoist that is being used heavily.

[00:29:54] Speaker 04:
Mr. Concrete's attorney just admitted, essentially, that it was such heavy use that it needed service within five months of it being in use.

[00:30:04] Speaker 04:
And therefore, there was a design flaw because it caused a situation where the screw in the hoist mechanism itself was weak and required that service.

[00:30:14] Speaker 02:
Well, do you have any answer to the fact that CMCO claims that they had 63,000 sales and this never happened to any other unit?

[00:30:29] Speaker 02:
Did you explore that with them?

[00:30:31] Speaker 02:
And did you come up with any reason why they haven't had any complaints?

[00:30:37] Speaker 04:
Well, I think your honor brought up a really good point in that there may be others out there that are just waiting to break.

[00:30:44] Speaker 02:
That's my point.

[00:30:45] Speaker 02:
My question is, what's your point?

[00:30:46] Speaker 02:
Did you explore that with them to find out what's the reason?

[00:30:49] Speaker 02:
How is it possible that my client is the only person in 63,000 who's been injured because one screw holding up this heavy equipment over his head failed?

[00:31:01] Speaker 02:
Why is he the only one?

[00:31:02] Speaker 02:
Did you explore that and see what the reason could be that

[00:31:05] Speaker 04:
for their for their for their statistics did you drill down on that at all well again we rely upon our on the on our experts opinion on that indicating that there were multiple problems you don't expect your expert to to do the investigation for you did you investigate it well we we uh... uh... not not and not

[00:31:22] Speaker 04:
I guess not as much as we probably should have, to be honest.

[00:31:26] Speaker 04:
But that is something that our expert indicated that that's where the design flaw came in.

[00:31:30] Speaker 00:
The expert said it wouldn't have happened if the screw had been replaced with a conforming screw.

[00:31:36] Speaker 04:
That's right.

[00:31:37] Speaker 04:
And that's where that failure to warn and the failure to specifically indicate what size screw and to use the loctite when replacing the screw was so important.

[00:31:49] Speaker 04:
And if there are no other questions, I have no question.

[00:31:52] Speaker 04:
OK.

[00:31:52] Speaker 04:
Thank you.

[00:31:53] Speaker 05:
All right.

[00:31:54] Speaker 05:
Thank you to all counsel for your briefing and argument in this case.

[00:31:57] Speaker 05:
This matter is submitted, coming from Buffalo to Portland's a long way.

[00:32:01] Speaker 05:
So appreciate you making the trip.

[00:32:04] Speaker 05:
This matter is submitted, and this panel will return tomorrow.

[00:32:09] Speaker 02:
All rise.