V & M STAR STEEL v. Centimark Corp.

RECOMMENDED FOR FULL-TEXT PUBLICATION

Pursuant to Sixth Circuit Rule 206

File Name: 12a0109p.06

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

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V&M STAR STEEL,

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Plaintiff-Appellant,

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No. 10-3584

v.

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Defendant-Appellee. -

CENTIMARK CORPORATION,

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Appeal from the United States District Court

for the Northern District of Ohio at Youngstown.

No. 07-03573—George J. Limbert, Magistrate Judge.

Argued: June 7, 2011

Decided and Filed: April 25, 2012

Before: DAUGHTREY, MOORE, and STRANCH, Circuit Judges.

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COUNSEL

ARGUED: Eric W. Richardson, VORYS, SATER, SEYMOUR & PEASE LLP,

Cincinnati, Ohio, for Appellant. John P. Liekar, Jr., YUKEVICH, MARCHETTI,

LIEKAR & ZANGRILLI, P.C., Pittsburgh, Pennsylvania, for Appellee. ON BRIEF:

Eric W. Richardson, Daniel J. Buckley, VORYS, SATER, SEYMOUR & PEASE LLP,

Cincinnati, Ohio, Janice T. O’Halloran, STEFANSKI & ASSOCIATES, LLC,

Youngstown, Ohio, for Appellant. John P. Liekar, Jr., YUKEVICH, MARCHETTI,

LIEKAR & ZANGRILLI, P.C., Pittsburgh, Pennsylvania, for Appellee.

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OPINION

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JANE B. STRANCH, Circuit Judge. V&M Star Steel (“V&M”) filed suit against

Centimark Corporation (“Centimark”) alleging breach of contract and negligence after

1

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an incident at its steelwork facility. The district court1 granted summary judgment in

favor of Centimark, ruling that V&M failed to produce sufficient evidence of causation

to sustain either legal claim. Because genuine issues of material fact exist, we

REVERSE the grant of summary judgment for Centimark and REMAND for trial.

I. BACKGROUND

In 2006, V&M entered into a contract with Centimark to replace part of the

corrugated steel roof at V&M’s plant in Youngstown, Ohio. The contract by its express

terms consisted of multiple documents, including the “Construction Services

Agreement” (“the Agreement”), the exhibits with attachments that were referred to in

the Agreement, and Centimark’s “Final 2006 Roof Project Proposal” (“the Proposal”)

dated May 9, 2006.

In Article I.1 of the Agreement, the parties agreed that Centimark would perform

the work described in the Proposal, and the parties referred to that work throughout the

remainder of the Agreement as “the ‘Services.’” The Services included removing and

replacing roofing materials, installing flashing, and cleaning on certain designated

portions of the roof. Article VIII.1 of the Agreement stated that “[t]he standard of care

for all Services provided by [Centimark] to [V&M] shall meet or exceed industry

standards used by members of the construction industry practicing under similar

conditions at the same time and locality.” Centimark warranted that it had the capability,

experience and means necessary to perform the services to the standard of care stated

and in accordance with the terms of the Agreement. Art. VIII.4.

In addition to specifying the standard of care Centimark must meet in performing

the Services, the Agreement also required Centimark to observe V&M’s strict written

safety standards. Those standards were found in Exhibit II to the Agreement, called the

“Invitation to Bid Specifications,” and in Attachment C to that exhibit. Section 2.6,

titled, “Safety,” specified that “[s]trict adherence by [Centimark] personnel to all site . . .

regulations is mandated.” Section 2.6.1 stated that Centimark “shall abide by the V&M

1

The case was heard by a magistrate judge with the consent of the parties.

No. 10-3584 V&M Star Steel v. Centimark Corp. Page 3

Star Construction Safety Program” and section 2.6.2 provided that Centimark “shall

provide” a signed “Contractor Safety Agreement.” In Section 4.9.1, Centimark agreed

to perform all work “in such a manner so as not to disturb continuing operations at the

facility” because no “shut down or outage, beyond those required for routine

maintenance of the operating facilities, is planned for the duration of the project.”

Section 4.9.6 provided that Centimark “shall protect all plant utilities in the Work area.

Any utility damaged by [Centimark] shall be immediately repaired, replaced or restored

to service at [Centimark’s] expense.” Section 4.9.7 provided that Centimark “shall

repair or replace in kind any damage by [Centimark] to [V&M’s] structures not included

in the scope of Work, at no cost to V&M Star.” Section 4.9.8 provided that Centimark

“shall take all necessary precautions for the protection of life and property during its

construction activities. [Centimark] shall be responsible for maintaining the integrity

and stability of adjacent structures . . . resulting from its construction activities.”

Section 26.1 of Attachment C to the “Invitation to Bid Specifications” set forth

numerous “Contractor Safety and Environmental Requirements” V&M required

Centimark to follow. Section 26.1 mandated that “[m]aterials shall be stored and stacked

in a manner that prevents sliding, falling, or collapsing.” V&M granted Centimark, its

employees, and agents reasonable access to the facility to perform the Services only if

they complied with V&M’s safety rules and regulations. Article II.2; Article VIII.6.

Finally, the parties agreed that Centimark “shall be solely responsible for the acts

and omissions of its employees,” as well as others working under Centimark’s direction

in performing the services. Art. VIII.5. Centimark agreed to indemnify and hold V&M

harmless from and against any and all damages incurred by V&M as a result of

Centimark’s negligence or breach of the Agreement. Art. IX.2. In the “Contractor

Safety Agreement” included as part of the contract, Centimark agreed to comply with

all V&M safety rules and regulations and acknowledged that failure to comply with

V&M’s safety rules “shall be grounds for . . . recovery of damages.”

After the contract was executed, Centimark received at V&M’s facility bundles

of various lengths of corrugated steel roofing panels manufactured by Flexospan. Each

No. 10-3584 V&M Star Steel v. Centimark Corp. Page 4

bundle contained approximately 30 panels of roof sheeting. The longer panels were

approximately 21 feet by 6 feet and weighed around 90 pounds each. The bundles were

secured by boards clamped with metal bands. Each bundle weighed between 2,500 and

3,000 pounds.

On Sunday, July 23, 2006, Centimark employees used a crane to lift the bundles

onto those areas of the roof to be replaced, known as A-Bay, B-Bay, and C-Bay. The

roof slope increased from a 3/12 pitch at A-Bay to a 4/12 pitch at C-Bay. On B-Bay and

C-Bay, Centimark employees secured the bundles to the roof by screwing “kickers” to

the perlins in the areas where the bundles were placed parallel to the roof line. Each

bundle was secured by two kickers. On A-Bay, however, no kickers were used, and the

bundles were placed perpendicular to the roof line.

V&M utilizes an overhead crane in A-Bay as part of its normal melt shop

operations. The crane is positioned directly below the roof of A-Bay where Centimark

staged the bundles without kickers.

Centimark employees started replacing the roof as soon as the bundles were

staged. On Thursday, July 27, 2006, employees of both Centimark and Ohio Valley

Sheeting and Painting were working on V&M’s roof in different areas. Ohio Valley had

performed roofing work for V&M for years, but it lost the bid for the roof replacement

project to Centimark. Around 12:20 p.m., Centimark employees quit work due to rain.

The record does not show what time Ohio Valley employees quit work that day. Around

7:00 p.m., a number of roof sheeting panels fell from A-Bay into one of V&M’s

electrical substations located directly below. V&M lost all power to its plant for more

than 30 hours. V&M’s damages for electrical repairs and lost profits was around

$3 million.

After the power went out, Larry Collins, a V&M millwright, and Eric Crowl, of

V&M security, climbed onto the roof to be sure that no more panels would fall onto the

men working below at the substation. Collins testified it was obvious to him that one

bundle of roofing panels had slid down A-Bay so that the bottom board securing the

bundle was trapped in the gutter, and some of the panels were stopped at the gutter, but

No. 10-3584 V&M Star Steel v. Centimark Corp. Page 5

the top board to secure the panels was missing so that the rest of the panels made it to

the substation directly below. Collins found only a few panels from the bundle left on

the roof. Collins did not observe any panels coming all the way out of other bundles

staged on the roof, but he testified that “almost every bundle that was up there was

shifting down. . .[;] this was the only one that actually let go.” Noticing that some of the

bands on the bundles were broken, Collins and Crowl remarked to each other that they

hoped the rest of the bundles would stay on the roof.

Collins further testified that it appeared the roofers walked off the job when it

started to rain without putting away materials or equipment, and “nothing was secured.”

Believing that gravity or the wind had caused the panels to slide from the roof into the

substation, Collins tied rope around two smaller bundles of unsecured roofing panels that

were sitting up on a ledge. He and Crowl also tied down a generator.

Rusty Myers, Centimark’s operations manager, testified consistently with

Collins. Myers and Centimark’s project foreman, Mike Helms, returned to V&M’s plant

shortly after the incident. V&M’s roofing project manager, Justin Littleton, instructed

Myers to secure the loose panels that remained on the roof. Myers testified that

“[d]irectly above the substation you could see more of that bundle of panels sticking into

the gutter up on the roof.” Myers and Helms gathered the remaining panels from the

bundle that slid, pulled them back from the low roof, and put them in a more secure

place on the roof. Myers did not have any kickers to secure the other bundles on A-Bay,

so he removed some of the metal bands from the bundles and screwed them across the

corners of the bundles to secure them to the roof.

During deposition, V&M’s counsel showed Myers photographs depicting

stressed bands on bundles that appeared to be moving downhill on the roof. When asked

if he observed that condition while he was on the roof, Myers answered, “I may very

well have. It’s normal; it’s not abnormal.” Myers acknowledged that a band would

break if a bundle “was on such a steep slope that the panels were to creep to a point” that

the band was stressed. When asked, “See the bundles out of its banding; is that normal

also?” Myers responded, “I’ve seen it before, but not S that’s not as common as the

No. 10-3584 V&M Star Steel v. Centimark Corp. Page 6

previous picture.” Myers testified that he had “most definitely” seen sheets or panels

coming out of bundles, but he stated that the bundles could have arrived from the factory

that way. He thought it “just peculiar” that the bands on the bundle at A-Bay did not

appear to be damaged and that the panels from that bundle had “been wiggled or slid

out.”

Myers later provided Centimark with an affidavit that is inconsistent with his

deposition testimony and with other evidence produced by Centimark. In the affidavit,

Myers averred:

12. At all times the bundles were completely intact and the

metal straps were secure and tight. No bundle, or individual panel within

a bundle, exhibited any evidence of shifting, sliding or otherwise moving

from the place where any particular bundle was staged on the roof.

There were never any reports that a bundle/strap was loose or that any

bundles/panels were sliding or moving. . . .

16. It is not necessary to secure bundles until metal straps are

removed which does not occur until a roofing crew is ready to begin

roofing in the area where the bundle is staged. Once a bundle is opened

it is secured by a kicker and, if all panels in the opened bundle are not

used immediately, additional methods are used to secure the panels

overnight.

17. On July 27, 2006 the subject bundle had not been opened

and it was staged in an area where CentiMark crews were not working

and would not be working for approximately another week.

Centimark produced the expert report of Larry Bajek, a Centimark engineer.

Bajek stated that “[t]here are no national or local standards, practices or customs for the

storage and placement of corrugated panel bundles on a roof. The staging of materials

in process is left up to the site conditions and the individual installation companies.”

Bajek also stated that “[u]ntil the packaging is removed, the panels are secure and do not

require kickers or any other restraining device to prevent sliding.” Bajek reported that

“[p]hotographs and testimony demonstrate that the metal straps around the bundle at

issue remained intact, although at least two of the boards from under the strapping had

been displaced[,]” which he opined required intentional force to remove. Testing done

for Centimark by PSI showed that, if one board was removed from a bundle, the panels

No. 10-3584 V&M Star Steel v. Centimark Corp. Page 7

remained secure and could not be moved with normal human force. After a second

board was removed, the panels could be moved with normal human force, but did not

slide by gravity. After a third board was removed, “the panels slid by gravity, in a

similar fashion to what was found at the accident site.” Bajek stated that “PSI’s testing

confirms that an intentional act was required to compromise the manufacturer’s binding

of the bundles and that a removal of the boards, as seen at the accident site, would cause

the panels to slide.” Centimark asserted that a third party, possibly one or more Ohio

Valley employees, tampered with the bundle at issue, but Centimark acknowledged in

its briefing in the court below that the sabotage theory was speculation.

During their investigation, V&M’s safety director, Chad McClimans, and Justin

Littleton considered whether any of three factors caused the panels to slide from the roof

based on the way the bundles were staged: wind, vibration from V&M’s overhead crane

in A-Bay, or the acts of some person. They ruled out wind because the National

Weather Service reported the wind at only eight miles per hour on the evening of the

incident, but they did not rule out the other two possibilities. McClimans firmly believed

that vibration of V&M’s overhead crane in A-Bay caused the panels to slide on the roof.

He did not believe that anyone would commit sabotage to put people at risk and cause

the amount of damage that occurred.

V&M produced an expert report and affidavit from Daniel C. Mester, a lifelong

member of the Iron Workers Local 17. Mester had forty years of pertinent experience

installing metal roof sheeting. In his opinion, Centimark should have used kickers or

some type of restraining device to secure the bundles staged on A-Bay because the use

of kickers is a “normal and common procedure” any time material is placed on a sloped

surface. Mester explained that the metal bands could not be relied upon to prevent

panels from sliding out of bundles because the bands can stretch or weaken during transit

from the manufacturer and when the bundles are lifted by crane to the roof. He noted

that vibration from V&M’s overhead crane in A-Bay, wind, and precipitation all added

to the constant force of gravity so that the “natural tendency is for the sheeting to want

to move downhill.” Mester stated that, “[f]rom the photos I was shown, this is exactly

No. 10-3584 V&M Star Steel v. Centimark Corp. Page 8

what happened.” He opined that the absence of kickers on A Bay “is what allowed the

sheeting to slide off the roof.” Like Centimark’s expert, Bajek, Mester also stated that

the panels would slide downward as soon as the bands were cut. In Mester’s opinion,

Centimark did not set up the job properly because kickers should have been used on all

roof levels.

After the incident and before allowing work to continue, V&M required

Centimark to state in writing the preventative measures it planned to follow to secure

material on the roof. Centimark agreed, among other things, to use one kicker on each

perpendicular bundle and to secure old panels and opened new bundles at the end of each

work day “to prevent wind uplift.”

On cross-motions for summary judgment, the district court determined that the

contract contained conflicting terms on the standard of care Centimark was required to

meet. Construing the ambiguity against V&M, the court ruled that Centimark could not

be held strictly liable for the damages V&M suffered. V&M Star v. Centimark Corp.,

No. 4:07CV3573, 2009 WL 5943241, at *11 (N.D. Ohio Feb. 4, 2009). The court also

held that V&M was not entitled to an inference of negligence under the doctrine of res

ipsa loquitur because the roof was not under Centimark’s exclusive control at the time

of the incident. Id. at *16. The court also ruled that the expert opinion of Daniel Mester

for V&M was inadmissible. Id. at **17-19. Finally, the court concluded that V&M

could not prevail on the breach of contract or negligence claims because it did not

produce any direct evidence of causation and there was no circumstantial evidence from

which a reasonable factfinder could conclude that Centimark caused the injury to V&M.

Id. at *20. The court denied V&M’s motion for summary judgment on the breach of

contract claim and granted Centimark’s motion on both claims.

II. STANDARD OF REVIEW

We review the grant of summary judgment de novo, drawing all reasonable

inferences in favor of the non-moving party. See Wimbush v. Wyeth, 619 F.3d 632, 636

(6th Cir. 2010). Summary judgment is appropriate only when the evidence, taken in the

light most favorable to the nonmoving party, establishes that there is no genuine issue

No. 10-3584 V&M Star Steel v. Centimark Corp. Page 9

as to any material fact and the movant is entitled to judgment as a matter of law. Fed.

R. Civ. P. 56(c); Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587

(1986).

A genuine issue of material fact exists when there are “disputes over facts that

might affect the outcome of the suit under the governing law.” Anderson v. Liberty

Lobby, Inc., 477 U.S. 242, 248 (1986). In evaluating the evidence, “the judge’s function

is not himself to weigh the evidence and determine the truth of the matter but to

determine whether there is a genuine issue for trial.” Id. at 249. While the mere

existence of a scintilla of evidence in support of the non-moving party is insufficient to

defeat a motion for summary judgment, the court may deny the motion if the record

contains evidence from which a jury could reasonably find for the non-moving party.

Id. at 252.

III. ANALYSIS

Because V&M brought the case under diversity jurisdiction, state law governs

the substantive issues and federal law governs the procedural issues, including

evidentiary rulings made pursuant to the Federal Rules of Evidence. Gass v. Marriott

Hotel Servs., Inc., 558 F.3d 419, 425–26 (6th Cir. 2009). Under Ohio law, the elements

of a breach of contract claim are: (1) the existence of a contract; (2) performance by the

plaintiff; (3) breach by the defendant; and (4) damage or loss to the plaintiff as a result

of the breach. Savedoff v. Access Grp., Inc., 524 F.3d 754, 762 (6th Cir. 2008) (applying

Ohio law); Logsdon v. Ohio N. Univ., 587 N.E.2d 942, 946 (Ohio Ct. App. 1990). The

elements of negligence are: (1) the existence of a duty; (2) breach of the duty; and (3)

an injury proximately resulting from the breach. Jeffers v. Olexo, 539 N.E.2d 614, 616

(Ohio 1989).

A. The contract was not ambiguous

We do not agree that the contract between V&M and Centimark contained

ambiguous terms. In performing the actual work—that is, removing and replacing

roofing materials, installing flashing, and cleaning—Centimark agreed to “meet or

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exceed industry standards used by members of the construction industry practicing under

similar conditions at the same time and locality.” The parties dispute what those

industry standards are, as we discuss below. Wholly separate from the standard of care

in performing the Services, however, is Centimark’s agreement to follow V&M’s

mandatory safety rules which were designed to protect people and structures in the work

area and prevent any unnecessary plant shutdown while the roofing work was underway.

Centimark agreed to store and stack materials in a manner to prevent them from sliding

or falling, and Centimark covenanted to protect V&M’s plant utilities. These mandatory

safety requirements are easily harmonized with the standard of care for performing the

actual work because V&M imposed the different standards to address different concerns.

Nonetheless, V&M cannot hold Centimark strictly liable for the damages

incurred because Centimark accepted contractual responsibility to pay the cost to repair

damage that Centimark caused. See Agreement, Article IX.2 (indemnity for damages

arising from negligence or breach “by Contractor”); Invitation to Bid Specifications,

§ 4.9.6 (“Any utility damaged by the Contractor”); § 4.9.7 (“any damage by the

Contractor”). Whether Centimark caused the damages by failure to follow V&M’s

safety rules and/or by failure to perform the roofing work in a manner meeting or

exceeding industry standards are the central disputed factual issues in the case. Under

Ohio law, V&M must prove causation by a preponderance of the evidence in order to

recover the claimed damages, especially lost profits, as a result of breach of contract or

negligence. See Charles R. Combs Trucking, Inc. v. Int’l Harvester Co., 466 N.E.2d

883, 887 (Ohio 1984) (contract); Pacher v. Invisible Fence of Dayton, 798 N.E.2d 1121,

1128 (Ohio Ct. App. 2003) (negligence).

In the present procedural posture, we are concerned with whether V&M

presented sufficient evidence, taken in its favor, to warrant a jury trial on the disputed

issues. We conclude that V&M met its summary judgment burden. We consider first

whether the testimony of V&M’s expert, Daniel Mester, is admissible and then turn to

other evidence V&M produced.

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B. Mester’s expert opinion is admissible

We review the question whether expert testimony was properly excluded for

abuse of discretion. Kentucky Speedway, LLC v. Nat’l Ass’n of Stock Car Auto Racing,

Inc., 588 F.3d 908, 915 (6th Cir. 2009). A district court abuses its discretion if it

predicates a ruling on an erroneous view of the law or a clearly erroneous assessment of

the evidence. Id.

Each party presented expert reports and affidavits concerning whether there were

any industry standards applicable to staging corrugated panel bundles on a roof.

Centimark’s engineer, Larry Bajek, opined that there are no national or local standards,

practices, or customs governing the storage and placement of bundles on a roof. He

averred that the individual installation company determines how roofing materials will

be staged, depending on site conditions.

V&M’s expert, Daniel Mester, averred to a reasonable degree of certainty based

on his forty years of experience installing metal roofs that kickers are always used to

secure roofing materials when they are placed on a sloped surface, regardless of roof

pitch. In his opinion, Centimark’s foreman and job superintendent did not properly set

up the job because kickers or some other type of restraining device should have been

used to secure the perpendicular bundles staged on A-Bay.

Federal Rule of Evidence 702(a) provides that “[a] witness who is qualified as

an expert by knowledge, skill, experience, training, or education may testify in the form

of an opinion” if the expert’s technical or “other specialized knowledge” will help the

jury understand the evidence or determine a fact in issue. Mester was qualified by

knowledge, skill, experience, and training to give reliable opinion testimony about the

frequency and necessity of kicker use in the metal roofing industry. See In re Scrap

Metal Antitrust Litig., 527 F.3d 517, 528–29 (6th Cir. 2008). Mester’s opinion was

relevant because it would assist the jury in deciding the parties’ dispute regarding the

existence and application of industry standards. See id. By excluding Mester’s

testimony in its entirety, the district court precluded V&M from supporting its claims

and meeting Centimark’s expert testimony.

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The district court next focused on Mester’s statement in his report: “As soon as

the bands are cut, when you go to put them down they are going to want to slide down.”

The court ruled this testimony was not relevant under Federal Rule of Evidence 104(b)2

because V&M had not produced any evidence that the metal bands around the bundle

in question had been cut; instead, the evidence indicated the metal bands on the bundle

were still intact.

Mester’s statement was not considered in its proper context. Mester explained

that kickers are used when placing materials on a sloped surface because “[a]s soon as

the bands are cut” the panels in the bundles “are going to want to slide down.” Mester

did not state or imply that the metal bands on the bundle at issue had been cut; rather,

he simply described what ordinarily occurs if metal bands are cut while the bundle sits

unsecured on a sloped surface. V&M was not required to present proof that the bands

had been cut on the bundle in question as a condition for the admission of Mester’s

expert testimony. Mester’s explanation, based on his extensive knowledge and

experience in the industry, would have assisted the jury in understanding the force of

gravity on the roofing panels.

Next, the district court excluded Mester’s opinion because it “has no factual basis

for causation” 2009 WL 5943241, at *18, but we disagree. Mester averred that kickers

are necessary to secure bundles on the roof because metal shipping bands become weak

during transportation and cannot be relied upon to prevent panels from sliding out of

bundles. Mester stated: “Vibration from the overhead crane, wind and precipitation all

add to the constant force of gravity. The natural tendency is for the sheeting to want to

move downhill. From the photos I was shown, this is exactly what happened.” In other

words, based on the facts made known to him, Mester concluded, based on his

knowledge and experience, that the metal bands no longer resisted gravity’s effect on the

panels and, because they were placed perpendicular to the roof line, they slid downhill

2

Rule 104(b) provides: “When the relevance of evidence depends on whether a fact exists, proof

must be introduced sufficient to support a finding that the fact does exist. The court may admit the

proposed evidence on the condition that the proof be introduced later.”

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toward the gutter. Mester added: “The absence of [kickers] on A Bay is what allowed

the sheeting to slide off the roof” and into the substation.

“Experts are permitted a wide latitude in their opinions, including those not based

on firsthand knowledge.” Jahn v. Equine Servs., PSC, 233 F.3d 382, 388 (6th Cir.

2000). Expert opinion can also be based on an inference and can embrace an ultimate

issue. Fed. R. Evid. 704(a). The district court faulted Mester’s opinion because he did

not take any frequency measurements from the roof during mill operations to determine

the amount of vibration on the roof of A-Bay, nor did he make any calculations based

on weather reports. The court further believed that Mester’s statements were

inadmissible because they “lack any indicia of probability and are mere comments on

possibility.” 2009 WL 5943241, at *18.

We do not interpret Mester’s report in the same way. He was not required to

develop scientific measurements to support his opinion that gravity caused the panels to

slide. “So long as the Earth rotates on its axis, the law of gravity is certain. While the

law of gravity prevails, it is also certain that an unsupported object will fall until its

travel is interrupted by some object or surface below.” Busch v. Unibilt Indus., Inc., No.

18175, 2000 WL 1369891, at *3 (Ohio Ct. App. Sept. 22, 2000); Szotak v. Moraine

Country Club, Inc., 872 N.E.2d 1270, 1276–77 (Ohio Ct. App. 2007) (“Until the law of

gravity is repealed, standing above ground level on a ladder presents an inherent risk of

injury resulting from a fall.”); Holdshoe v. Whinery, 222 N.E.2d 435, 438 (Ohio Ct. App.

1966) (“If no restraint was put on a motor vehicle parked on an incline, gravity would

cause the motor vehicle to roll down the incline at an accelerating speed.”). Jurors do

not need to hear expert scientific evidence to determine causation, and the court admitted

as much. 2009 WL 5943241, at *19. But jurors must be allowed to hear relevant

evidence, and they can understand from their own life experience that objects set on a

slope will move downward with the force of gravity unless restrained. See Ramage v.

Central Ohio Emergency Serv., Inc., 592 N.E.2d 828, 833 (Ohio 1992) (“[M]atters of

common knowledge and experience, subjects which are within the ordinary, common

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and general knowledge and experience of mankind, need not be established by expert

opinion testimony.”).

Under the Federal Rules of Evidence, the standard for relevance is “extremely

liberal.” See Dortch v. Fowler, 588 F.3d 396, 400 (6th Cir. 2009). Evidence is relevant

if it has “any tendency to make the existence of any fact that is of consequence to the

determination of the action more probable or less probable than it would be without the

evidence.” Fed. R. Evid. 401. Relevant evidence is admissible under Federal Rule of

Evidence 402. Mester’s opinion helps V&M establish that, had Centimark installed

kickers on A-Bay, it is more probable that the panels would not have fallen into the

substation when gravity pulled them downward. Therefore, his opinion is relevant,

admissible evidence. We believe the court’s expressed concerns bear on the weight the

jury may give Mester’s opinion at trial, not on its admissibility. See Best v. Lowe’s

Home Ctrs., Inc., 563 F.3d 171, 182 (6th Cir. 2009). Accordingly, we conclude that the

exclusion of Mester’s expert opinion was an abuse of discretion.

C. Summary judgment was not appropriate

A jury trial is warranted because genuine issues of material fact exist on this

record. V&M produced evidence to show the existence of a contract, V&M’s

performance of the contract, Centimark’s breach of it, and resulting damages to V&M.

See Savedoff, 524 F.3d at 762; Logsdon, 587 N.E.2d at 946. Construing the facts in the

light most favorable to V&M, a reasonable jury could find that Centimark breached

contract provisions requiring it to store materials away from edges to prevent objects

from falling, to protect V&M’s utilities, and to work in a manner so as not to disturb the

continuing operations of V&M’s facility.

V&M also produced evidence of negligence in that Centimark owed V&M a

duty, Centimark breached the duty, and injury to V&M proximately resulted from the

breach. See Jeffers, 539 N.E.2d at 616. We agree with the district court that V&M is

not entitled to an inference of negligence based on the doctrine of res ipsa loquitur

because V&M did not establish one of the necessary prerequisites, that being “the

instrumentality causing the injury was, at the time of the injury, or at the time of the

No. 10-3584 V&M Star Steel v. Centimark Corp. Page 15

creation of the condition causing the injury, under the exclusive management and control

of” Centimark. See Hake v. George Wiedemann Brewing Co., 262 N.E.2d 703, 705

(Ohio 1970). Nonetheless, despite V&M’s inability to produce an eye witness to the

incident, it produced sufficient circumstantial evidence to justify a jury trial on

negligence.

Contrary to the district court’s view, causation is not “left to utter speculation.”

2009 WL 5943241, at *21. Collins testified that, when he and Crowl climbed to the roof

after the power outage, they found the roof in disarray. It appeared the roofers had left

in a hurry due to the rain and failed to secure materials and equipment to the roof before

they left. The bundle of panels on A-Bay directly above the substation appeared to have

slid downward where the bottom board of the bundle came to rest in the gutter.

Although the metal bands were intact, Collins reported that the upper boards were

missing, only a few panels remained on the roof, and the rest of the panels had fallen into

the substation. At deposition, Myers confirmed that photographs depicted other staged

bundles moving downhill on the roof, stressing the metal bands, and he agreed such

movement is a normal occurrence, although he retreated from that testimony when he

filed a subsequent affidavit.

The expert evidence tends to confirm the lay witness testimony that gravity

caused the unsecured panels to slide. Centimark’s expert, Bajek, acknowledged that the

panels are secure in the packaging—protective boards and metal bands—until the

packaging is removed and Collins’s testimony makes clear that some packaging boards

were removed from the bundle in question. In addition, PSI’s testing for Centimark

confirmed that, after a third board is removed from a bundle, the panels will slide by

gravity “in a similar fashion to what was found at the accident site.” This evidence,

combined with Mester’s expert testimony for V&M, points to gravity as a likely cause

of the bundle’s movement on the roof and the lack of kickers as the reason why the

panels continued to slide off the roof and into the substation. And while evidence of

subsequent remedial measures—like Centimark’s use of kickers on A-Bay after the

incident—is not admissible to prove negligence or culpable conduct, it may be

No. 10-3584 V&M Star Steel v. Centimark Corp. Page 16

admissible for impeachment or, if disputed, the feasibility of precautionary measures.

Fed. R. Evid. 407. Finally, a question for the jury remains as to whether the panels

escaped the bundles due to manufacturer error, a combination of rain and vibration, or

other external force. Even if the missing boards could have been removed from the

bundle only by intentional force, as Centimark argues, a jury question remains as to

whether it is more probable that Centimark employees removed the boards and failed to

secure the panels before leaving work for the day or whether Ohio Valley employees

committed sabotage against V&M, a theory Centimark both offered and acknowledged

to be nothing more than its own speculation. All of these possibilities must be submitted

to a jury for resolution on the disputed evidence as a whole. See Bourjaily v. United

States, 483 U.S. 171, 179–80 (1987) (“[I]ndividual pieces of evidence, insufficient in

themselves to prove a point, may in cumulation prove it. The sum of an evidentiary

presentation may well be greater than its constituent parts.”).

“Credibility determinations, the weighing of the evidence, and the drawing of

legitimate inferences from the facts are jury functions, not those of a judge[.]”

Anderson, 477 U.S. at 255; Bobo v. UPS, Inc., 665 F.3d 741, 748 (6th Cir. 2012).

Having carefully reviewed the record, we are convinced that a jury trial is warranted.

IV. CONCLUSION

For all of the reasons stated, summary judgment in favor of Centimark should not

have been granted. Accordingly, we REVERSE the judgment in favor of Centimark

and REMAND for trial.