Boathouse Condominiums at 1111 N. Water St. begun $1 million structural repairs, despite lawsuit dismissal

$1M in foundation repairs start on high-end condo building after lawsuit
Posted on October 13, 2016 by Sheryl Barr

Source: http://www.mlive.com, October 11, 2016
By: Andrew Dodson

More than $1 million in work to stabilize a multi-million dollar condominium project began this week, more than a year after a lawsuit alleging the building had extensive construction defects was dismissed.

In March 2014, 19 residents of the Boathouse Condominiums, 1111 N. Water St., in downtown Bay City filed a lawsuit against five defendants, including the Boathouse Condominiums Owner’s Association, claiming the revitalization project’s construction was defective and “failed in several respects,” according to court records. The residents argued the building had poor ventilation and insulation and an insufficient heating system, in addition to more serious claims that the building’s foundation was heaving and settling.

A year later, Bay County Circuit Court Judge Kenneth W. Schmidt dismissed the case. The residents and defendants entered into a mediation arrangement, according to residents in the condo building, to come up with a solution.

On Monday, Oct. 10, crews from Pennsylvania-based Nicholson Construction began installing extra foundation on the river side of the building, said Paul Rowley, the building’s developer and resident agent for Marina Place LLC, one of the defendants in the lawsuit.

“The building doesn’t appear to have moved at all, but we want to be sure it stays that way into the future,” Rowley said. “I’m calling the work an extra insurance policy on the building.”

In addition to the foundation work, crews are also tearing out an old wood deck, installing new pilings alongside the west side of the building and constructing a new deck out of more durable materials.

Rowley expects the work — which he estimated at more than $1 million — to last a few weeks.

“I’m the biggest investor in that building, so I want to make sure it’s in good shape,” he said.

Several of the 19 plaintiffs in the case were either unable to be reached or declined to comment, only acknowledging that work was being done on the building.

In converting the former Jennison Boathouse into 37 high-end condos, Marina Place acted as the developer, Gregory Construction as the general contractor, Friewald/Staudacher Design Inc. as the architect and MacMillan Associates Inc. as the engineer.

The building was constructed in 1921 as a steel warehouse. A large addition was added in 1935 bringing the total size of the building to about 42,800 square feet. It was later used for boat storage.

William D. Gregory and Rowley were the primary developers and investors in converting the building into living space in the mid-2000s.

Rowley said the work isn’t forcing any condo owners to temporarily leave their residences.



==========




BAY CITY, MI — Nineteen residents of a riverfront condominium complex in downtown Bay City are suing the various businesses that envisioned and constructed their abodes, claiming the structure is rife with defects.

The residents of the Boathouse Condominiums at 1111 N. Water St. — Dan Blossom, Kris Blossom, Elizabeth Cooley, Carl Cooper, David Dunn, Sue Dunn, Elaine Hirschfield, Jim Patterson, Shelley Patterson, Andy Rogers, Sandy Rogers, Karl Roth, Stephen Sgrazzutti, Shelley Sgrazzutti, Carol Short, David Udehn, Rose Udehn, Dana Wiltse, and Jannis Wiltse — filed their lawsuit in Bay County Circuit Court in March.

They named as the defendants Marina Place LLC, the Boathouse Condominiums Owners' Association, Gregory Construction, Freiwald/Staudacher Design Inc., and MacMillan Associates Inc.

Bay City businessman and developer Paul A. Rowley is listed as the resident agent for Marina Place LLC in state documents.

Freiwald/Staudacher Design Inc. is no longer listed as defendant in the case, having been dismissed from the suit in the spring, records show.

In the suit, the residents are seeking damages in excess of $25,000.

"Individual plaintiffs have requested the association, through its Board of Directors, take action to prosecute construction defect claims, but they've failed to do so," the suit states, adding that the association was incorporated on or about Nov. 16, 2005, as a nonprofit to manage and administer affairs of the condos.

Shelley Sgrazzutti is the president of the board. Rowley is also a member.

In converting the former Jennison Boathouse into 37 high-end living quarters, Marina Place acted as the developer, Gregory Construction as the general contractor, Friewald/Staudacher as the architect and MacMillan as the engineer.

The building was constructed in 1921 as a steel warehouse. A large addition was added in 1935 bringing the total size of the building to about 42,800 square feet. It was later used for boat storage.

William D. Gregory and Rowley were the primary developers and investors in converting the building into living space in the mid-2000s.

The suit states: "The Project as constructed was defective and failed in several respects including but not limited to failure to make the building water tight causing water leaks to occur at several locations and failing to properly design and/or build a structurally sound building, causing damage to the Project, including but not limited to:

• Gaps of varying widths around many of the windows
• Poor ventilation
• Poor insulation
• Insufficient heating systems
• Premature roadway failure
• Improper storm water drainage
• Heaving of the building foundation
• Cracking of the building exterior wall cladding system
• Cracking of the interior perimeter wall drywall
• Excessive water intrusion
• Water damage
• Mold

When it was initially filed, the suit's allegations comprised six counts, but it was subsequently amended in August to include a total of 14 counts, alleging breach of contract, breach of warranty, breach of covenant, negligence, misrepresentation, and piercing the company veil.

The defendants' response to the allegations states "that it is without sufficient knowledge upon which to form a belief as to the truth or falsity of those allegations contained therein and, therefore, neither admits nor denies them, but leaves Plaintiffs to their strict proofs thereof."

"I can't talk intelligently about it as I haven't read the complaint," said Rowley. "The only thing I'm aware of is anyone who can raise the filing fee can sue you for anything. Somebody's got to explain to me down the line what I'm supposed to have done."

The Times was unable to reach most of the plaintiffs. Those The Times did reach declined to comment.

"We haven't seen any evidence that substantiates the claims that you see in the complaint," said Southfield attorney Adam L. Kochenderfer, representing Marina Place. "However, we are continuing to actively investigate the allegations."

Troy attorney James Sukkar, representing Gregory Construction, declined to comment. The Times was unable to contact the other defendants or their attorneys.

The case is scheduled for a settlement conference before Bay County Chief Circuit Judge Kenneth W. Schmidt on Tuesday, Jan. 13, 2015.

CDC Advises Hospitals to Alert Patients at Risk from Contaminated Heater-Cooler Devices Used during Cardiac Surgery

Distributed via the CDC Health Alert Network
October 13, 2016, 13:00 ET (1:00 PM ET)
CDCHAN-00397
Summary
The Centers for Disease Control and Prevention (CDC) is advising hospitals to notify patients who underwent open-heart (open-chest) surgery involving a Stöckert 3T heater-cooler that the device was potentially contaminated, possibly putting patients at risk for a life threatening infection. New information indicates that these devices, manufactured by LivaNova PLC (formerly Sorin Group Deutschland GmbH), were likely contaminated with the rare bacteria Mycobacterium chimaera during manufacturing. Hospitals should advise potentially exposed patients to seek medical care if they are experiencing symptoms such as night sweats, muscle aches, unexplained weight loss, fatigue, or unexplained fever. In addition, hospitals that use or have used this device are strongly encouraged to make and execute a plan to communicate with potentially exposed patients and to increase awareness among healthcare providers.
Background
In the spring of 2015, investigators in Switzerland reported a cluster of six patients with invasive infection of M. chimaera, a species of nontuberculous mycobacterium (NTM) commonly found in soil and water. The infected patients had undergone open-heart surgery that used contaminated heater-cooler devices during extracorporeal circulation (1). In July 2015, a Pennsylvania hospital also identified a cluster of invasive NTM infections among patients who had undergone open-heart surgery.  CDC assisted in a field investigation that used both epidemiologic and laboratory evidence to identify an association between invasive Mycobacterium avium complex (including M. chimaera) infections and exposure to contaminated 3T heater-cooler devices, consistent with the Swiss report (2).
The water circuits in these heater-cooler devices that are used to regulate temperature during cardiopulmonary bypass do not come into direct contact with the patient’s circulating blood; however, these reports suggest that M. chimaera can be aerosolized by the devices and result in infections (1,2). The Food and Drug Administration (FDA) and CDC have issued alerts about the need to follow updated manufacturer’s instructions for maintenance and use of the devices, evaluate the devices for contamination, remain vigilant for new infections, and continue to monitor reports from the United States and overseas (2).
CDC in collaboration with National Jewish Health completed a whole-genome sequencing analysis and results demonstrate that M. chimaera isolates from patients with heater-cooler associated infections and from the 3T heater-cooler devices from several U.S. hospitals (in Pennsylvania and Iowa) are all highly related to each other (3). This evidence for likely point-source contamination of the 3T heater-cooler devices is consistent with recent reports from Europe (http://www.fda.gov/MedicalDevices/Safety/AlertsandNotices/ucm504213.htm) that describe matching of M. chimaera sequences from environmental isolates at the device production site in Germany and isolates from patients and devices in Europe.
More than 250,000 heart bypass procedures using heater-cooler devices are performed in the United States every year; the 3T heater-cooler device linked to these infections represents about 60% of the heater-cooler devices in the country (2,4). In hospitals where at least one infection has been identified, the risk of infection was between about 1 in 100 and 1 in 1,000 patients. Initial information suggests that patients who had prosthetic material implanted are at highest risk for NTM infections. These infections are difficult to treat and delays in diagnosis further complicate patients’ clinical management. Therefore, it is imperative that patients and providers are informed about the risk of infection associated with use of the 3T device and the need for appropriate diagnostic evaluation to facilitate timely diagnosis and treatment.
Recommendations
Healthcare providers

1. Internists, infectious disease specialists, cardiologists, cardiothoracic surgeons, and other clinicians should suspect NTM infections among patients who have signs of infection and a history of open-chest cardiac surgery.

• Infections can take months to cause symptoms.
• Patients with NTM infections following cardiac surgery have presented with a variety of clinical manifestations. Common examples are endocarditis, surgical site infection, or abscess and bacteremia. Other clinical manifestations have included hepatitis, renal insufficiency, splenomegaly, pancytopenia, and osteomyelitis. 

2. Diagnosis can be difficult due to the nonspecific presentation of illness and the slow growing nature of the bacteria.

• Physicians should consider consulting with an infectious disease specialist if caring for patients who have undergone an open-chest cardiac procedure and present with signs of infection.
• Cultures for acid fact bacilli (AFB) should be obtained as part of the evaluation.
• Other specialized testing to detect M. chimaera may be needed and further laboratory testing should be discussed and arranged in consultation with an infectious disease specialist or health department.

Hospitals

1. Hospitals performing open-chest cardiac surgery should immediately assess their use of heater-cooler devices and determine whether they are currently using – or have previously used – 3T devices.  Facilities should ensure that they are implementing current FDA recommendations to minimize patient risk to infections associated with heater-cooler devices (http://www.fda.gov/MedicalDevices/Safety/AlertsandNotices/UCM520191.htm).
2. Hospitals should notify cardiothoracic surgeons, cardiologists, infectious disease physicians, internists, primary care physicians, and other clinicians who evaluate patients that have had open-chest cardiac or other bypass surgery, about the risk of infection associated with 3T heater-cooler devices. CDC has sample letters available at https://www.cdc.gov/hai/outbreaks/heater-cooler.html.
3. Hospitals should review their facility’s microbiology laboratory database and records of surgical procedures for any positive NTM cultures in surgery patients that might indicate a possible case.  CDC has provided guidance on case-finding: http://www.cdc.gov/hai/pdfs/outbreaks/Guide-for-Case-Finding.pdf.
4. Hospitals should consider institution-specific strategies for alerting patients of the risk of infection related to potentially contaminated heater-cooler devices. CDC has sample patient notification letters available at https://www.cdc.gov/hai/outbreaks/heater-cooler.html.
5. Hospitals can consider prospective surveillance of patients who have undergone open-chest cardiac surgery involving a 3T heater-cooler device.
6. Hospitals should consider using informed consent to educate patients of the potential NTM infection risk.
7. The overall risk of M. chimaera infection is low relative to other complications following cardiac surgery; emergent cardiac procedures should not be delayed because of the use of 3T devices. Continued use of 3T devices should be done in accordance with the latest manufacturer’s recommendations, including maintenance and proper positioning of devices to minimize the risk of patient exposure.
8. Hospitals that have identified contaminated 3T heater-cooler devices or patient infections associated with devices should promptly alert their local or state health department and submit a report to FDA via MedWatch at http://www.fda.gov/Safety/MedWatch/HowToReport/DownloadForms/default.htm

Health Departments

1. Health departments should communicate with healthcare facilities that perform cardiac surgery using heater-cooler devices about the risk of M. chimaera infection associated with open-chest cardiac surgery involving use of the 3T heater-cooler devices.  Health departments should direct facilities to CDC and FDA heater-cooler guidance documents in these communications.

• CDC guidance documents can be found here:
  • http://www.cdc.gov/hai/pdfs/outbreaks/Guide-for-Case-Finding.pdf
  • http://www.cdc.gov/HAI/pdfs/outbreaks/CDC-Notice-Heater-Cooler-Units-final-clean.pdf
• FDA guidance documents can be found here:
  • http://www.fda.gov/MedicalDevices/Safety/AlertsandNotices/ucm504213.htm
  • http://www.fda.gov/MedicalDevices/Safety/AlertsandNotices/ucm466963.htm
  • http://www.fda.gov/MedicalDevices/Safety/AlertsandNotices/UCM520191.htm

2. Health departments should track reports from healthcare facilities about potential infections associated with heater-cooler devices and encourage facilities to report these events to FDA.
3. Health departments should be prepared to assist healthcare facilities with further investigation; CDC is available for further consultation as needed.

Patients

1. Symptoms of NTM infection, including M. chimaera infection, can take months to appear. Patients should be aware of the symptoms of NTM infection which can include persistent or unexplained fever; night sweats; redness, heat, or pus around a surgical incision; muscle aches; unexplained weight loss; or fatigue.
2. Patients who have had cardiac surgery should seek medical evaluation if they have one or more of these symptoms or have questions about possible exposure to a heater-cooler device.

References

1. Sax H, Bloemberg G, Hasse B, et al. Prolonged outbreak of Mycobacterium chimaera infection after open-chest heart surgery. Clin Infect Dis 2015;61:67-75.
2. Food and Drug Administration. Nontuberculous Mycobacterium (NTM) infections associated with heater-cooler devices (HCD) during cardiothoracic surgery. Gaithersburg, MD; FDA Circulatory System Devices Panel of the Medical Devices Advisory Committee; June 2-3, 2016.  http://www.fda.gov/AdvisoryCommittees/CommitteesMeetingMaterials/MedicalDevices/MedicalDevicesAdvisoryCommittee/CirculatorySystemDevicesPanel/ucm485091.htm.
3. Mycobacterium chimaera Contamination of Heater-Cooler Devices Used in Cardiac Surgery — United States MMWR Morb Mortal Wkly Rep 2016;65:1117–1118. DOI https://www.cdc.gov/mmwr/volumes/65/wr/mm6540a6.htm?s_cid=mm6540a6_w
4. The Society of Thoracic Surgeons. Adult cardiac surgery volumes and procedures.  Adult Cardiac Surgery Database 2015.

The Centers for Disease Control and Prevention (CDC) protects people's health and safety by preventing and controlling diseases and injuries; enhances health decisions by providing credible information on critical health issues; and promotes healthy living through strong partnerships with local, national and international organizations.

Schaefer v. Universal Scaffolding & Equip., LLC, No. 15-2393 (7th Cir. 2016) : the prevalence of defects among the Universal scaffolding pieces at the worksite certainly makes it more likely that the piece that hit Schaefer was defective

Schaefer v. Universal Scaffolding & Equip., LLC, No. 15-2393 (7th Cir. 2016) 


Schaefer’s employer, Brand Energy, was erecting scaffolding at a Dynegy power plant. 

Brand had complete control over the scaffold construction. Brand acquired the scaffold components from Universal, but Dynegy paid for the scaffolding and owned it. 

Brand workers had difficulties with the Universal components because faulty components would not readily lock. A bar popped loose and struck Schaefer on the head. Schaefer suffered serious injuries. In addition to bringing a workers’ compensation claim against Brand, Schaefer sued Universal. 

Because the piece of scaffolding that hit him was lost, he added claims for negligent spoliation of evidence against Brand and Dynegy. Schaefer also alleged construction negligence and failure to warn against Dynegy. 

The district court granted summary judgment for defendants, holding that without the missing piece, Schaefer could not prove his product liability claims; that Dynegy was not liable for any defects or negligence; and that Schaefer could not prove the spoliation claims because, without proof that the missing piece was defective, it was not possible to prove that its loss caused any damage. 

The Seventh Circuit affirmed in part, but reversed as to spoliation. Illinois law does not require a plaintiff to prove that he would have won his case but for the spoliation, it requires only that the plaintiff show a “reasonable probability” of success. 

Schaefer adduced evidence from which a jury could make this finding: the batch of scaffolding had a large number of defective pieces. 

=======

In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 15-2393
MATTHEW SCHAEFER, et al.,
Plaintiffs-Appellants,
v.
UNIVERSAL SCAFFOLDING & EQUIPMENT, LLC,
et al.,
Defendants-Appellees.
____________________
Appeal from the United States District Court for the
Southern District of Illinois.
No. 10-cv-791 — Philip M. Frazier, Magistrate Judge.
____________________
ARGUED JANUARY 14, 2016 — DECIDED OCTOBER 7, 2016
____________________
Before FLAUM and RIPPLE, Circuit Judges, and PETERSON, District Judge.∗
PETERSON, District Judge. This diversity case requires us to review the district court’s application of Illinois tort law, par-ticularly concerning spoliation of evidence. Matthew Schaefer, a construction worker, alleges that he was seriously
∗ Of the Western District of Wisconsin, sitting by designation.
2 No. 15-2393
injured when a defective piece of scaffolding fell and struck him on the head. So, in addition to bringing a workers’ com-pensation claim against his employer, Schaefer sued the scaf-folding manufacturer, Universal Scaffolding & Equipment, LLC. When he learned that the piece of scaffolding that hit him had been lost, he added claims for negligent spoliation of evidence against his employer, Brand Energy Services, LLC, and against Dynegy Midwest Generation, LLC, the company that had engaged Brand to build scaffolding at a Dynegy power plant. Schaefer also alleged claims for con-struction negligence and failure to warn against Dynegy. Schaefer’s wife joined his claims for negligent spoliation and brought claims for loss of consortium against each of the de-fendants.
In a series of decisions, the district court granted sum-mary judgment for defendants. At the heart of the case is the missing piece of scaffolding, which had been lost while in Dynegy’s possession, before anyone had tested it for defects. The district court held that without the missing piece, Schaefer could not prove his product liability claims against Universal. The district court also held that Dynegy was not liable for any defects or negligence in the construction of the scaffolding. We affirm these decisions.
But the district court also held that Schaefer and his wife could not prove their spoliation claims either, reasoning that because the Schaefers were unable to prove that the missing piece was in fact defective, they would be unable to prove that the loss of the piece caused them any damage. The dis-trict court here relied on an incorrect statement of Illinois spoliation law, which does not require a plaintiff to prove that he would have won his case but for the spoliation. A
No. 15-2393 3
spoliation claim under Illinois law requires only that the plaintiff show a “reasonable probability” of success on the underlying suit. Because the Schaefers adduced evidence from which a jury could make this finding—the batch of scaffolding used on the Dynegy project had a large number of defective pieces—the grant of summary judgment on the spoliation claims was improper. Accordingly, we reverse the grant of summary judgment on the spoliation claims against Brand and Dynegy.
I. Background
Matthew Schaefer was an employee of Brand Energy Services, LLC, which had been engaged by Dynegy Midwest Generation, LLC, to erect scaffolding at a Dynegy power plant. Under its contract with Dynegy, Brand had complete and authoritative control over the scaffold construction. Ryan Wampler was Brand’s project manager. Dynegy also had a safety manager at the power plant, Don Watson. Brand acquired the scaffold components from Universal Scaffold-ing & Equipment, LLC, but Dynegy paid for the scaffolding and owned it.
The Universal scaffolding used a “cup-lock” system in which metal tabs on the horizontal bars, called “ears,” would fit into a cup attached to the vertical members. A second cup would be locked down onto the ears to hold the components in place. Brand workers had difficulties with the Universal scaffolding components because some of the bars were not the proper length and some had bent ears, and those faulty components would not readily lock into the cups. Eventually the problem became prevalent enough that Wampler had his crew inspect the new Universal components as they arrived and then mark and set aside the defective pieces.
4 No. 15-2393
At the time of Schaefer’s accident, November 2008, Schaefer and other Brand employees, including Maynard Hudson, were assembling scaffolding. Schaefer was a level below Hudson. A laborer would hand Schaefer a piece of scaffolding, and Schaefer would hand it up to Hudson, who would assemble the pieces. Hudson placed a three-foot, six-inch horizontal bar in the cups; but when he placed the next bar, the three-foot, six-inch bar popped out of its cups, fell, and struck Schaefer on the head. Schaefer suffered serious injuries to his neck, back, shoulders, and arms.
Precisely what caused the bar to fall is sharply disputed. Neither Schaefer nor Hudson noticed any defects in the bars, although during the assembly process they did not have time to look carefully. Wampler investigated the accident, and he reported that Hudson had knocked the bar with his hip or tool bag; but Hudson denies this. Schaefer contends that the root cause was Universal’s defective scaffolding, but proving that theory is problematic because of what hap-pened to the bar.
Immediately after Schaefer’s accident, Watson (Dynegy’s safety manager) asked Wampler to retrieve the bar that struck Schaefer. Watson stored the bar in his office at the power plant. When he moved offices in December 2009, he left the bar behind, and it was eventually moved to a storage room in the power plant. The last time that anyone saw the bar was in September or October of 2010, when a safety worker saw it in the storage room. By November 2011, the first time that Schaefer sought to examine the bar as part of discovery in this case, it had been lost.
Schaefer filed a workers’ compensation claim in March 2009. He filed a discovery action against Brand in Illinois
No. 15-2393 5
state court in December 2009. Brand never responded to the suit or to Schaefer’s interrogatories asking who had sold Brand the scaffolding used at the construction site and what the company had done with the scaffolding after finishing the project. Schaefer did not press the discovery action.
In June 2010, Schaefer and his wife, Cynthia, filed a com-plaint against Universal in state court, bringing claims for negligence, strict liability for product defect, strict liability for failure to warn, and loss of consortium. (Both Matthew and Cynthia Schaefer are plaintiffs and appellants, but for simplicity, we will refer to them collectively as “the Schaefers,” and we will refer to Matthew as “Schaefer.”) Universal removed the case to federal court on the basis of diversity. Two amended complaints later, Schaefer had six causes of action under Illinois law: three against Universal for negligence (product liability), strict liability for product defect, and strict liability for failure to warn; two against Dynegy for negligence and negligent spoliation; and one against Brand for negligent spoliation. Schaefer’s wife also brought three claims of her own: one against Dynegy for negligent spoliation; one against Brand for negligent spolia-tion; and one against all defendants for loss of consortium.
The district court granted summary judgment to defend-ants on all claims in a series of decisions issued over the course of two years. In June 2013, a now-retired district judge denied Brand’s motion for summary judgment on the spoliation claim against it. In February 2014, the district judge who took over the case denied cross-motions from the Schaefers and from Brand and Dynegy for summary judg-ment on the spoliation claims, but he granted Universal’s motion for summary judgment on all claims against it.
6 No. 15-2393
The parties then consented to have a magistrate judge preside over the remainder of the case (i.e., the claims against Dynegy and Brand). In January 2015, the magistrate judge granted Dynegy’s motion for summary judgment on Schaefer’s negligence claim against it. A month later, as the case neared trial on the remaining claims for spoliation and loss of consortium, the magistrate judge granted Brand and Dynegy’s joint motion in limine to exclude all evidence and testimony that the missing scaffolding bar was defective. At the magistrate judge’s invitation, Brand and Dynegy re-newed their motions for summary judgment on the spolia-tion and loss of consortium claims. The magistrate judge granted Brand and Dynegy’s renewed motion and the case was over. This appeal followed.
II. Discussion
The Schaefers contend that the district court erred in en-tering summary judgment on each of their claims. We re-view the district court’s grant of summary judgment de no-vo, examining the record in the light most favorable to the Schaefers. Carson v. ALL Erection & Crane Rental Corp., 811 F.3d 993, 995 (7th Cir. 2016). Under Federal Rule of Civil Pro-cedure 56, summary judgment is appropriate only when there are no genuine disputes of material fact and the mov-ing party is entitled to judgment as a matter of law.
A. Product liability and negligence claims
We begin with Schaefer’s product liability claims against Universal. Relying on Shramek v. General Motors Corp., Chev-rolet Motor Division, 69 Ill. App. 2d 72, 216 N.E.2d 244 (1966), and its progeny, the district court concluded that product liability claims fail under Illinois law when the plaintiff does
No. 15-2393 7
not present the allegedly defective product itself, or at least other admissible evidence that the product was defective. On appeal, Schaefer contends that the district court erred in concluding that he lacked evidence that the bar was defec-tive. We disagree.
Under Illinois law, plaintiffs in product liability actions “must identify the manufacturer of the product and demon-strate a causal relationship between the injury and the man-ufacturer’s product.” Tragarz v. Keene Corp., 980 F.2d 411, 418 (7th Cir. 1992) (citing Zimmer v. Celotex Corp., 192 Ill. App. 3d 1088, 1091, 549 N.E.2d 881, 883 (1989)). As part of proving a causal relationship, Schaefer must adduce evidence that the bar was, in fact, defective. This evidence can be direct or cir-cumstantial, but Schaefer must establish that a defect in the scaffolding caused the accident. Shramek, 216 N.E.2d at 247; see also Sanchez v. Firestone Tire & Rubber Co., 237 Ill. App. 3d 872, 874, 604 N.E.2d 948, 950 (1992) (“Proper circumstantial evidence includes either proof that tends to exclude other extrinsic causes or expert testimony that the product was de-fective.”). The mere fact that an accident occurred does not establish causation. Shramek, 216 N.E.2d at 247.
Schaefer relies on deposition testimony from four wit-nesses, arguing that this testimony creates a genuine dispute of material fact as to whether the bar was defective. But these witnesses merely confirm that workers at the construc-tion site had identified some defective scaffolding pieces. The record does not establish that every piece of scaffolding at the jobsite was defective, and there is no evidence in the record that the specific bar that caused Schaefer’s injury was defective. And one of Schaefer’s own experts, Geno Mani-ago, conceded at his deposition that even if that specific bar
8 No. 15-2393
had been defective, the bar could have been damaged at the work site, which would mean that the defect was not at-tributable to Universal.
Without the bar itself, which was lost before it was ana-lyzed, Schaefer cannot prove that Universal’s defective product caused his injuries, and thus he cannot succeed on his product liability claims against Universal. At most, he has adduced expert opinions that the bar that hit him might have been one of the defective ones. But this is not enough to get the case to a jury. See Sanchez, 604 N.E.2d at 950 (“[L]iability in a products liability action cannot be based on mere speculation, guess, or conjecture, and the circumstanc-es shown must justify an inference of probability as distin-guished from mere possibility.”); Phillips v. U.S. Waco Corp., 163 Ill. App. 3d 410, 419, 516 N.E.2d 670, 675 (1987) (“With-out an examination of the scaffold itself to determine if the collapse was a result of a preexisting defect, Phillips could never prove, directly or inferentially, a claim based in negli-gence or strict liability.”). The district court properly granted summary judgment to Universal on Schaefer’s product lia-bility claims. And, consequently, Cynthia Schaefer’s loss of consortium claim against Universal necessarily fails, and the district court properly granted summary judgment on that claim, too.1
1 Under Illinois law, “actions for personal injuries and actions for loss of consortium … are legally distinct.” Mitchell v. White Motor Co., 58 Ill. 2d 159, 163, 317 N.E.2d 505, 507 (1974). But when a defendant is not liable for the underlying claim, it is appropriate to dismiss attached claims for loss of consortium. See, e.g., Fluker v. County of Kankakee, 945 F. Supp. 2d 972, 994 (C.D. Ill.), aff’d, 741 F.3d 787 (7th Cir. 2013).
No. 15-2393 9
This leaves Schaefer’s negligence claim against Dynegy. As a general rule of Illinois law, a party who hires an inde-pendent contractor is not liable for the acts of the independ-ent contractor. Wilfong v. L.J. Dodd Const., 401 Ill. App. 3d 1044, 1060, 930 N.E.2d 511, 526 (2010). Dynegy hired Brand to build the scaffolding, so if the general rule applies, Dynegy is not liable for the defective construction. On ap-peal, Schaefer gives three reasons (the same reasons he gave to the district court) why the general rule should not apply. We are not persuaded.
Schaefer relies first on the “retained control” exception to the general rule, as articulated in § 414 of the Restatement (Second) of Torts, which Illinois has adopted. Section 414 provides:
One who entrusts work to an independent con-tractor, but who retains the control of any part of the work, is subject to liability for physical harm to others for whose safety the employer owes a duty to exercise reasonable care, which is caused by his failure to exercise his control with reasonable care.
Restatement (Second) of Torts § 414 (1965). Schaefer con-tends that Dynegy retained enough control over Brand’s work that Dynegy owed him a duty to exercise reasonable care over the scaffolding project.
Schaefer argues that Dynegy exercised control through Watson, Dynegy’s on-site safety director at the power plant. According to Schaefer, Watson “would walk around the job site, talk to workers and try to correct unsafe things.” Appel-lants’ Brief, at 35. Watson’s authority, according to Schaefer,
10 No. 15-2393
was conferred through the Master Services Agreement (MSA), under which “Dynegy reserve[d] the right to inspect and deny access or use of any equipment or substance brought on site.” Id. at 9 (citing Dkt. 197-6).
2 The MSA also required Brand to participate in Dynegy’s safety program.
But Watson’s work and Dynegy’s safety program estab-lish only that Dynegy had a right to inspect and to require general safety. The comments to § 414 make clear that retain-ing these general rights do not give rise to liability under the retained control exception. As comment C provides:
In order for the rule stated in this Section to apply, the employer must have retained at least some degree of control over the manner in which the work is done. It is not enough that he has merely a general right to order the work stopped or resumed, to inspect its progress or to receive reports, to make suggestions or rec-ommendations which need not necessarily be followed, or to prescribe alterations and devia-tions. Such a general right is usually reserved to employers, but it does not mean that the contractor is controlled as to his methods of work, or as to operative detail. There must be such a retention of a right of supervision that the contractor is not entirely free to do the work in his own way.
Restatement (Second) of Torts § 414, Comment C.
2 All docket citations refer to the district court docket.
No. 15-2393 11
Schaefer contends that Watson’s activities are compara-ble to those that were sufficient to show “retained control” in Bokodi v. Foster Wheeler Robbins, Inc., 312 Ill. App. 3d 1051, 728 N.E.2d 726 (2000). But in Bokodi, “defendants’ actions in-dicated a substantial level of involvement in the incidental activities at the work site.” 728 N.E.2d at 735. Watson’s safe-ty inspection activities, which extended to the entire plant and not just to the scaffolding project, did not get him in-volved in incidental activities of the scaffold construction. The contract between Dynegy and Brand expressly gave Brand control:
Contractor is, and shall continue to be, an in-dependent contractor, and any provisions of this Agreement or any Purchase Order which may appear to give Dynegy the right to direct Contractor as to details of performing any Ser-vices, or to exercise a measure of control over Contractor’s performance of the Services, shall be interpreted to mean that Contractor will fol-low the instructions of Dynegy with respect to the results of the Services achieved only and not in the means whereby the Services are to be accomplished. Contractor shall have complete and authoritative control as to the details of performing the Services.
Dkt. 197-6, at 12 (MSA, § A.23) (emphasis added). Other sec-tions of the contract gave Dynegy the right to inspect Brand’s work and to halt work when unsafe, but the contract did not give Dynegy control over operational details of the scaffold construction. Without control over operational de-tails, the right of inspection and the authority to stop work is
12 No. 15-2393
insufficient to establish “retained control” under § 414 of the Restatement. Moiseyev v. Rot's Bldg. & Dev. Inc., 369 Ill. App. 3d 338, 351, 860 N.E.2d 1128, 1139 (2006). And when, as in this case, the evidence establishes only the right to inspect, to halt work, and to make safety suggestions, the question is decidable as a matter of law. Id. at 1139‒40.
Second, Schaefer contends that Dynegy, as the landown-er, is liable for unsafe conditions on its premises. But Schaefer devotes only a scant paragraph to the issue. He cites no authority and simply asserts that the ill-fitting scaf-folding components constitute a condition of the land. Per-functory and undeveloped arguments are waived, as are ar-guments unsupported by legal authority. United States v. Hook, 471 F.3d 766, 775 (7th Cir. 2006).
But Schaefer’s argument would fail even if not waived. Illinois courts have adopted §§ 343 and 343A of the Restate-ment (Second) of Torts for purposes of evaluating premises liability claims. Cooper v. Carl A. Nelson & Co., 211 F.3d 1008, 1015 (7th Cir. 2000), as amended on denial of reh’g and reh’g en banc, (June 1, 2000) (citing Genaust v. Ill. Power Co., 62 Ill. 2d 456, 468, 343 N.E.2d 465, 472 (1976)). These provisions im-pose liability on landowners, under certain circumstances, for harm caused “by a condition on the land.” Restatement (Second) of Torts § 343. But not everything located on a landowner’s property is a “condition on the land.” See, e.g., Gregory v. Beazer E., 384 Ill. App. 3d 178, 191, 892 N.E.2d 563, 577 (2008) (asbestos blankets and gloves were not conditions on the land); Quinton v. Kuffer, 221 Ill. App. 3d 466, 472, 582 N.E.2d 296, 300 (1991) (a flammable 55-gallon drum that ex-ploded was not a condition on the land). Schaefer was not injured by already-assembled scaffolding, which could ar-
No. 15-2393 13
guably be a condition on the land. He alleges that he was in-jured as a result of an activity taking place on the Dynegy property, one that involved a defective piece of equipment. The cause of Schaefer’s injury is unlike those things that con-stitute conditions on the land, so premises liability is a poor fit for Schaefer’s negligence claim against Dynegy.
Schaefer’s third basis for holding Dynegy liable is a “fail-ure to warn” theory. The Illinois Supreme Court has applied § 388 of the Restatement (Second) of Torts to failure to warn claims. See Busch v. Graphic Color Corp., 169 Ill. 2d 325, 348, 662 N.E.2d 397, 409 (1996). Under § 388, in certain circum-stances, one who provides chattel for another to use has a duty to warn of known defects in the chattel. Schaefer con-tends that Dynegy should have warned him about the defec-tive scaffolding. The district court held that Schaefer could not proceed under this theory of negligence because he had failed to adduce evidence of any unequal knowledge be-tween Schaefer and Dynegy. The district court was correct.
Under Illinois law, “[a] duty to warn exists where there is unequal knowledge, actual or constructive of a dangerous condition, and the defendant, possessed of such knowledge, knows or should know that harm might or could occur if no warning is given.” Happel v. Wal-Mart Stores, Inc., 199 Ill. 2d 179, 186, 766 N.E.2d 1118, 1123 (2002) (citations, internal quotation marks, and alterations omitted). Schaefer’s knowledge of the defective scaffolding was undisputedly equal to, and likely much greater than, Dynegy’s knowledge. By the time of the accident, Brand workers had already had several problems with the scaffolding. Brand’s project su-pervisor Wampler (Schaefer’s boss) had directed Brand workers to go through new shipments of scaffolding, mark
14 No. 15-2393
the bad pieces, and set them aside. Wampler had also talked to his crews about the bad scaffolding. Schaefer himself testi-fied that he had noticed problems with the scaffolding on the jobsite. As for the specific bar that struck him, Schaefer han-dled it when he passed it up to Hudson to put it into place. Because Schaefer had at least as much knowledge as Dynegy had about the bar’s defects, Schaefer’s failure to warn theory necessarily fails.
3 And with that, Schaefer’s negligence claim against Dynegy is doomed, along with his wife’s related loss of consortium claim.
In sum, based on undisputed facts of the record, the dis-trict court properly granted summary judgment on Schaefer’s product liability claims against Universal and his negligence claim against Dynegy.
B. Spoliation claims
The Illinois Supreme Court recognized a cause of action for negligent spoliation of evidence in Boyd v. Travelers Insur-ance Co., 166 Ill. 2d 188, 193, 652 N.E.2d 267, 270 (1995), as modified on denial of reh’g, (June 22, 1995). In that case, the plaintiff, Boyd, was injured in an explosion that he alleged was caused by a defective propane heater. Insurance com-pany employees took the heater for testing to determine the cause of the explosion, but the heater was lost while in the insurance company’s possession, before it had been tested for defects. Boyd brought spoliation claims against the in-
3 It bears mentioning that Schaefer’s arguments in support of his negligence claim against Dynegy generally presume that the bar was defective. But without the bar, he cannot prove that it was defective, so his negligence claim against Dynegy would fail for the same reason that his product liability claims against Universal fail.
No. 15-2393 15
surance company, which the insurance company moved to dismiss. The case was certified to the Illinois Supreme Court, which held for the first time that Illinois recognizes a claim for negligent spoliation, and that Boyd had stated such a claim, even though he would not be able to prove that the heater was actually defective. Boyd, 652 N.E.2d at 272.
Under Boyd, spoliation is not a separate, new tort, but a species of negligence. Accordingly, a negligent spoliation claim requires the plaintiff to prove the traditional four ele-ments of negligence: a duty to preserve the evidence; breach of that duty by loss of the evidence; that the loss proximately caused the plaintiff’s inability to prove his underlying claim; and actual damages as a result. Id. at 270; see also Martin v. Keeley & Sons, Inc., 2012 IL 113270, ¶ 26, 979 N.E.2d 22, 27.
In this case, the district court twice denied motions for summary judgment on the Schaefers’ spoliation claims. A-8‒16. The district court held that both Brand and Dynegy had a duty to preserve the scaffolding piece, but that questions of fact about the other elements precluded summary judgment for either side. As trial approached, Brand and Dynegy filed a joint motion in limine to exclude any evidence or argument that the scaffolding was defective. Dkt. 220. The motion prompted the district court (now with Magistrate Judge Fra-zier presiding) to revisit the proximate cause issue. The dis-trict court granted the motion in limine, reasoning that with-out the missing scaffolding piece, the Schaefers could never prove by a preponderance of the evidence that the loss of the bar caused them to lose their underlying claims. With that evidentiary ruling made, the Schaefers’ spoliation claims were doomed. The court invited Brand and Dynegy to re-
16 No. 15-2393
new their motions for summary judgment and granted them.
On appeal, the Schaefers contend that the district court applied the wrong legal standard to their spoliation claims, which led the court to incorrectly grant the motion in limine. The Schaefers contend that they had adduced admissible ev-idence that the bar was defective, and thus they should have been allowed to proceed to trial on their negligent spoliation claims. Brand and Dynegy disagree, and they contend that the district court also erred in its earlier decisions that they had a duty to preserve the bar. We may affirm a district court’s grant of summary judgment based on any ground that the record supports, so long as the non-moving party had the opportunity to contest the issue. Gerhartz v. Richert, 779 F.3d 682, 685 (7th Cir.), cert. denied, 136 S. Ct. 319 (2015). Accordingly, we consider both issues, duty and causation.
1. Duty
Illinois law imposes no general duty to preserve evi-dence, but a duty arises if two conditions are satisfied. First, a “relationship” condition: the duty must “arise[] by agree-ment, contract, statute, special circumstance, or voluntary undertaking.” Dardeen v. Kuehling, 213 Ill. 2d 329, 336, 821 N.E.2d 227, 231 (2004). Second, a “foreseeability” condition: the duty to preserve must “extend[] to the evidence at is-sue—i.e., whether a reasonable person should have foreseen that the evidence was material to a potential civil action.” Id. A plaintiff must satisfy both the relationship condition and the foreseeability condition to prove that a duty to preserve evidence existed. Id.
No. 15-2393 17
The foreseeability condition is straightforward here: both Brand and Dynegy knew that the bar was involved in a seri-ous workplace injury, which is why Dynegy’s Watson sought to preserve it in the first place. Dynegy contends that the foreseeability condition had “expired,” so to speak, by the time Dynegy lost the bar in October 2010, because Schaefer had not asked Dynegy for the bar by then, and no one in Dynegy’s position would think that the bar mattered anymore. But that is merely conclusory. We agree with the district court that Dynegy, having collected the bar because of its role in a workplace accident, could not simply assume after less than two years that the bar was no longer pertinent to a personal injury claim.
The relationship condition is more complex. As one dis-trict court in this circuit has recently observed, “Illinois courts have not precisely defined what constitutes a ‘special circumstance,’ but ‘something more than possession and control are required, such as a request by the plaintiff to pre-serve the evidence and/or the defendant’s segregation of the evidence for the plaintiff[’]s benefit.’” Hart v. Amazon.com, Inc., No. 15-cv-1217, 2015 WL 8489973, at *6 (N.D. Ill. Dec. 8, 2015) (quoting Martin, 979 N.E.2d at 31). It would be an un-derstatement to say that this area of Illinois law is not gov-erned by bright-line rules. But Martin makes clear that mere possession of the evidence is not enough to impose a duty. 979 N.E.2d at 31‒32. Nor is being the plaintiff’s employer, or being a potential litigant. Id. But a request by a plaintiff to preserve the evidence, or a defendant’s segregation of the evidence for the plaintiff, are recognized as special circum-stances. Id.
18 No. 15-2393
For Brand, those special circumstances are present, alt-hough in a factually complicated way. Brand did not take long-term possession of the bar. But after the accident, Wampler, Brand’s project supervisor, collected the bar and delivered it to Watson, Dynegy’s safety supervisor, for safe-keeping because of its role in Schaefer’s accident. Schaefer filed a discovery action against Brand in December 2009. His discovery requests did not ask Brand to produce the bar it-self, but Schaefer was plainly seeking information about the bar, which at the time Brand knew was in Dynegy’s posses-sion. Brand contends now that Schaefer’s discovery com-plaint was legally unsound, and that Brand was entitled to ignore it. Maybe so, but the potential infirmities of the dis-covery action are beside the point. What matters is that a lit-tle more than a year after Schaefer’s accident, Brand knew that Schaefer was looking to Brand for information about the allegedly defective bar, which Brand had collected and de-livered to Dynegy to preserve. These facts bring the case close to Miller v. Gupta, 174 Ill. 2d 120, 129, 672 N.E.2d 1229, 1233 (1996), where analogous special circumstances satisfied the relationship prong. In Miller, the plaintiff’s attorney re-quested X-rays from the plaintiff’s doctor, and the doctor collected them. But the cleaning staff inadvertently tossed them out before copies were provided to plaintiff’s attorney. The district court here was right: having collected the bar, and knowing that Schaefer was looking for it, Brand had a duty to preserve it.
We reach the same conclusion with regard to Dynegy be-cause Dynegy voluntarily assumed a duty to preserve the bar. “A voluntary undertaking requires a showing of affirm-ative conduct by the defendant evincing defendant’s intent to voluntarily assume a duty to preserve evidence.” Martin,
No. 15-2393 19
979 N.E.2d at 28. Dynegy knew that Schaefer had been in-jured when the bar fell on him, and Watson asked a Brand employee to retrieve the bar so that Watson could store it in his office so that “there wasn’t any issue later.” And Watson recognized the potential importance of the bar to Schaefer’s case: sometime after the accident, Watson went to the inter-net to find out how much the bar weighed and what amount of force it had when it fell and struck Schaefer. Dynegy took affirmative steps to take possession of the bar, and to save it for potential litigation. Thus, Dynegy’s voluntary undertak-ing satisfies the relationship condition of the duty analysis.
2. Causation
We turn now to whether the district court applied the correct standard for causation, and whether under the cor-rect standard, the Schaefers had raised a genuine issue of fact regarding whether the loss of the bar was the proximate cause of Schaefer’s inability to prove his underlying negli-gence claims.
Causation in a spoliation case is a subtle concept. Under the principles set out in Boyd, the spoliation plaintiff has to prove that the loss of the evidence would cause him to lose the underlying case. 652 N.E.2d at 271. This showing pre-vents a spoliation claim from succeeding on the loss of some inconsequential evidence. But, as explained in a critical foot-note in Boyd, the spoliation plaintiff does not have to prove that he would have actually won his case with the missing piece:
A plaintiff need not show that, but for the loss or destruction of the evidence, the plaintiff would have prevailed in the underlying action.
20 No. 15-2393
This is too difficult a burden, as it may be im-possible to know what the missing evidence would have shown.
Id. at 271 n.2. If the spoliation plaintiff had to prove that he would have won the underlying suit if he had the missing evidence, he would be in a hopeless Catch-22: if he could prove that he would have won the underlying case even without the lost evidence, then he could not show that the loss of that evidence actually harmed him. In other words, it would be impossible for the spoliation plaintiff to show both that without the lost evidence he would necessarily lose the underlying case, and that with it, he would win.
So, to prevail on their spoliation claims, the Schaefers must make two showings. First, they must show that the loss of the scaffolding piece would cause them to lose their un-derlying suit. Id. And second, they must show that if they had the scaffolding piece, they would have a “reasonable probability” of winning. Id. But “reasonable probability” is less than proof of success by a preponderance of the evi-dence, because that is the standard required to show that they would have won the underlying suit.
Boyd makes clear that the burden is on the Schaefers to make these showings; there is no evidentiary presumption that negligently lost evidence is favorable to the plaintiff. Id. at 273. Although the burden is on the plaintiff, if a defendant shows that the plaintiff could not win the underlying suit even with the lost evidence, then the spoliation claim neces-sarily fails. Id. at 271 n.2. Causation in a negligence case is generally question for the trier of fact, unless there is no ma-terial dispute or only one conclusion is clearly evident. Wil-
No. 15-2393 21
liams v. Univ. of Chi. Hosps., 179 Ill. 2d 80, 88, 688 N.E.2d 130, 134 (1997).
The magistrate judge in this case held the Schaefers to the wrong standard. The magistrate judge correctly acknowl-edged that to succeed on the spoliation claims, Boyd “would require plaintiff to show a reasonable probability of success” on the underlying negligence claims. A-42. But the magis-trate judge conflated reasonable probability of success with proof by a preponderance of the evidence:
And plaintiff must prove a reasonable proba-bility of success on the merits. Now I have a hard time distinguishing in my mind any qual-itative difference between reasonable probabil-ity of success on the merits and the ability to show a preponderance of the evidence. Both mean more likely than not.
A-40. The magistrate judge also incorrectly paraphrased the holding in Boyd: “Or I think another way that it was put in Boyd is that, but for the loss of the scaffolding they would have been able to succeed on their claims.” A-42. This con-tradicts the actual holding in Boyd, which is that a spoliation plaintiff need not prove that he would have succeeded on the underlying claim but for the loss of the evidence.
Applying the proper standard, and viewing the record in the light most favorable to the Schaefers (as we must on the defense motions for summary judgment), the Schaefers have adduced sufficient evidence to put the issue of causation into genuine dispute. There was a pervasive problem with the scaffolding at the Dynegy jobsite, and workers were having ongoing problems with the horizontal bars popping out of
22 No. 15-2393
cups. The problem got so bad that Brand’s project supervisor had workers go through each new shipment of scaffolding and set aside the bad pieces. No one has provided testimony that the bar that hit Schaefer was actually defective. Several employees testified that they did not notice any defects in the bar that fell on Schaefer, but there is ample testimony that the defects would not be readily apparent after only a quick glance, which is all that Schaefer and his colleagues had time for while assembling the scaffolding. Hudson, the employee who installed the bars involved in the accident, testified that he did not bump any of them, despite Wampler’s report. If the jury were to believe Hudson, a rea-sonable jury could eliminate his negligence as a cause of the accident. It may be impossible for Schaefer to prove his neg-ligence case without the missing evidence, but the finger of suspicion points distinctly toward the missing bar, just as it pointed to the missing propane heater in Boyd. If Schaefer’s experts had had the opportunity to test the missing piece, they might have been able to confirm that the piece had de-fects that had gone unnoticed by the lay witnesses at the jobsite. But the loss of the piece deprived Schaefer of the op-portunity to develop this important proof.
We conclude that the Schaefers have raised a genuine is-sue of fact as to whether, with the missing scaffolding, they would have had a reasonable probability of success on their underlying claims. The district court’s grant of summary judgment on this issue is reversed.
3. Motion in limine
Our ruling necessarily means that the district court also erred in granting the joint motion in limine No. 21, which excluded all evidence that the missing piece was defective.
No. 15-2393 23
We review rulings on motions in limine for abuse of discre-tion; decisions about admitting and excluding evidence “are peculiarly within the competence of the district court.” Von der Ruhr v. Immtech Int’l, Inc., 570 F.3d 858, 862 (7th Cir. 2009) (citations and internal quotation marks omitted). But we will overturn the district court’s ruling if it is based on the wrong legal standard. See Aldridge v. Forest River, Inc., 635 F.3d 870, 875 (7th Cir. 2011) (“[T]he district court’s decision [on a mo-tion in limine] is to be overturned only if no reasonable per-son would agree with the trial court’s ruling.”).
The district court’s ruling on motion in limine No. 21 was based on the notion that any evidence that the missing scaf-folding was defective would be necessarily speculative. The district court’s reason for excluding Schaefer’s experts was that they could not reliably testify that the missing scaffold-ing actually had any of the defects that had been common in the Universal scaffolding at the work site:
I’m not going to allow Maniago or Unger to of-fer any opinion as to any defect that existed or that the defect may have caused the accident to happen, the incident to happen for the simple reason that, by their own admission and just by the application of just common sense, is that, that is just purely speculation on their part.
A-45. Both Maniago and Unger conceded that without the opportunity to test the lost scaffolding piece they could not say whether it was defective. But that is part of the showing that the Schaefers had to make to support their spoliation claims. They offered Maniago and Unger to help explain how the scaffolding worked, and to offer explanations of how the alleged defects in the scaffolding could have caused the bar to fall and thereby cause Schaefer’s injuries. Maniago’s and Unger’s testimony could have been admitted for these purposes, even if they could not testify whether the missing bar was actually defective. And the prevalence of defects among the Universal scaffolding pieces at the worksite certainly makes it more likely that the piece that hit Schaefer was defective. The district court’s grant of motion in limine No. 21, excluding all evidence that the missing scaffolding was defective, was in error because it evaluated the relevance of their testimony under the wrong legal standard applicable to spoliation claims.
This is not to say that Maniago’s and Unger’s testimony must be admitted. On remand, the parties may revisit their qualifications and the reliability of their testimony. But the district court must evaluate these issues under the correct standard for evaluating a negligent spoliation claim under Illinois law.
III. Conclusion
For the foregoing reasons, we AFFIRM the entry of summary judgment on all claims against Universal, and the entry of summary judgment on Schaefer’s negligence claim and Cynthia Schaefer’s related loss of consortium claim against Dynegy. We REVERSE the grant of summary judgment on the Schaefers’ spoliation claims against Dynegy and Brand. We REMAND for further proceedings consistent with this opinion.

At least 5,000 gallons of the low sulfur diesel fuel spilled in the Port Isabel Channel, after a barge allided with a dock

 
A Coast Guard law enforcement boat enforces a safety zone as Miller Environmental response crews use absorbent pads and absorbent boom to collect diesel from the Port Isabel Channel in Texas, Thursday, Oct. 13, 2016. U.S. Coast Guard photo by Petty Officer 1st Class Andrew Kendrick.

Coast Guard, Texas General Land Office responding to diesel spill near South Padre Island, Texas
Oct 13th, 2016


PORT ISABEL, Texas — Response workers were able to recover more than 2,000 gallons of diesel through the night and into Thursday morning in the Port Isabel Channel, after a barge allided with a dock Tuesday.

Tuesday at 11:24 p.m., watchstanders at Coast Guard Sector Corpus Christi received a report that the a barge in tow of the towing vessel, Capt. Jim Green, allided with a dock at the Subsea 7 facility in the channel, which caused the release of approximately 5,000 gallons of the low sulfur diesel fuel one of the barges was carrying.

The Coast Guard, Texas General Land Office and other state and local responders arrived quickly after the incident occurred and began response efforts with the barge owner to mitigate impacts from the spill and recover the diesel from the water. Miller Environmental was also activated as the oil spill response organization and began cleanup operations. The unified command believes there is approximately 1,000 gallons of diesel that has not been recovered.

Response crews will continue using absorbent pads, absorbent boom, shore-side skimming drums and vacuum trucks Thursday, to collect the remaining diesel which can be recovered.

As the area around the damaged barge is cleaned, the unified command anticipates moving the barge to a Transmontaigne dock, in the Brownsville Ship Channel, to offload the cargo. The Coast Guard will re-evaluate the need for keeping the safety zone after the barge is moved and will re-open the waterway if it does not impact any cleanup operations.

There have been no reported impacts to wildlife.

The Coast Guard is investigating the cause of the incident.  Drunk or careless captain?

Agri Star Meat & Poultry, LLC, of Postville, Iowa, to pay a penalty of $43,000 and to resolve industrial stormwater violations under the Clean Water Act.

EPA Reaches Settlement with Agri Star Meat & Poultry, LLC, of Postville, Iowa, for Industrial Stormwater Violations
10/13/2016
Contact Information:
Angela Brees (brees.angela@epa.gov)
913-551-7940

Environmental News


FOR IMMEDIATE RELEASE
(Lenexa, Kan., Oct. 13, 2016) - EPA Region 7 has reached an administrative settlement with Agri Star Meat & Poultry, LLC, of Postville, Iowa, to resolve industrial stormwater violations under the Clean Water Act. Under the settlement, Agri Star must comply with its industrial stormwater permit and pay a penalty of $43,000.

EPA investigations in March 2015 found that Agri Star failed to comply with its industrial stormwater permit, including failure to:

• Develop and update an adequate stormwater pollution prevention plan
• Implement best management practices to reduce the amount of pollutants in stormwater
• Perform facility inspections
• Conduct annual comprehensive site compliance evaluations
• Conduct visual stormwater monitoring
• Conduct employee training

Under an administrative compliance order issued in August 2016, Agri Star is addressing each of the violations to bring the facility into compliance with its industrial stormwater permit. Actions detailed in the compliance order include: installing and maintaining adequate control measures and best management practices; performing site evaluations of the implemented best management practices; updating and implementing sampling procedures; conducting employee training; and updating and implementing an adequate stormwater pollution prevention plan.

Pollutants from industrial stormwater facilities, if not properly managed, can negatively impact water quality and aquatic life. Stormwater pollution from a food processing facility can include bacteria, ammonia, biochemical oxygen demand, oil and grease, and total suspended solids. The stormwater from Agri Star discharges into Hecker Creek, which is a losing stream and tributary to the Yellow River. Strong and effective stormwater controls are necessary to ensure protection of losing streams, which are vulnerable to negative water quality impacts from pollution.

The Clean Water Act seeks to protect streams and wetlands that form the foundation of our nation’s water resources, which are critical in adapting to climate change impacts like drought, stronger storms, and warmer temperatures.

“The resolution of this action highlights the need for industrial facilities to control pollutants that may come in contact with stormwater,” said Karen Flournoy, director of EPA Region 7’s Water, Wetlands and Pesticides Division. “The Clean Water Act and the industrial stormwater program require common-sense pollution prevention actions and best management practices, which include employee training, regular facility inspections, stormwater monitoring, and constructing and maintaining structural controls.”

The settlement is subject to a 40-day public comment period before it becomes final. The public comment period began Sept. 29, 2016. Information on how to submit comments is available online.

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