Mueller v. Chugach Federal Solutions, Inc.

Filing 108

MEMORANDUM OPINION as more fully set out in order. Signed by Judge C Lynwood Smith, Jr on 06/25/14. (SPT )

FILED
2014 Jun-25 PM 03:12
U.S. DISTRICT COURT
N.D. OF ALABAMA

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF ALABAMA
NORTHEASTERN DIVISION
LINDA P. MUELLER, as
Administrator of the Estate of
Mark A. Mueller,
Plaintiff,
vs.
CHUGACH
FEDERAL
SOLUTIONS, INC. and
ASHLAND, INC.,
Defendants.

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Civil Action No. 12-S-00624-NE

MEMORANDUM OPINION
Plaintiff, Linda P. Mueller, commenced this action on February 23, 2012, and
asserted various claims arising from her husband’s death, allegedly due to his
exposure to Legionella pneumophila in the workplace, against only Chugach Federal
Solutions, Inc. (“Chugach”).1 Plaintiff twice amended her original complaint,2 and
the final iteration asserted claims against not only Chugach, but also Ashland, Inc.
(“Ashland”), for negligent and/or wanton maintenance (Count One), and negligent
and/or wanton hiring, training, and supervision (Counts Two through Four).3 With

1

See doc. no. 1 (Complaint).

2

See doc. no. 2 (First Amended Complaint); see also doc. no. 18 (Second Amended
Complaint).
3

See doc. no. 18 (Second Amended Complaint), at 4-7.

leave of court, Chugach asserted crossclaims against Ashland for breach of contract
and common law indemnity.4
The action presently is before the court on ten motions: i.e., Ashland’s motion
for summary judgment on all of plaintiff’s claims;5 Ashland’s motion for summary
judgment on Chugach’s crossclaims;6 Ashland’s motion to strike inadmissible hearsay
evidence submitted in opposition to its motion for summary judgment;7 Ashland’s
motion to exclude the expert opinion testimony of Dr. Jeffrey Garber;8 Ashland’s
motion to exclude the expert opinion testimony of Dr. James Barbaree;9 Chugach’s
motion to exclude the expert testimony of Dr. James Barbaree;10 Chugach’s motion
for summary judgment on all of plaintiff’s claims;11 Chugach’s motion to strike
and/or exclude the expert opinion of Dr. Jeffrey Garber;12 Ashland’s motion to strike
the declaration of Chris Hester;13 and Chugach’s motion to strike Ashland’s reply
brief submitted in support of its motion for summary judgment on Chugach’s
4

See doc. no. 21 (Order); see also doc. no. 22 (Chugach’s Crossclaims).

5

See doc. no. 63.

6

See doc. no. 64.

7

See doc. no. 76.

8

See doc. no. 78.

9

See doc. no. 80.

10

See doc. no. 84.

11

See doc. no. 85.

12

See doc. no. 103.

13

See doc. no. 88.

2

crossclaims.14
I. MOTIONS TO STRIKE AND TO EXCLUDE
A.

Motions Addressing Allegedly Inadmissible Hearsay Evidence
Defendants request the court to strike and refrain from considering: the

summary of an August 18, 2011 telephone conference call concerning the
investigation of Building 5681 following Mr. Mueller’s death that was compiled by
Lieutenant Colonel John Completo; and the reference in Mr. Mueller’s Huntsville
Hospital records to the results of a urine antigen test conducted by the Mayo Clinic
in Jacksonville, Florida.15

Defendants challenge both pieces of evidence as

inadmissible hearsay.16
The Federal Rules of Evidence define “hearsay” as “a statement that: (1) the
declarant does not make while testifying at the current trial or hearing; and (2) a party
offers in evidence to prove the truth of the matter asserted in the statement.” Fed. R.
Evid. 801(c). “Hearsay is not admissible unless any of the following provides
otherwise: a federal statute; these rules; or other rules prescribed by the Supreme
Court.” Fed. R. Evid. 802. Even so, it has long been the rule in the Eleventh Circuit
14

See doc. no. 105.

15

See doc. no. 76 (Ashland’s Objection to Inadmissible Hearsay Evidence Offered by
Plaintiff in Response to its Motion for Summary Judgment); see also doc. no. 84 (Chugach’s Motion
to Exclude the Expert Testimony of Dr. James Barbaree), at 17-20.
16

See supra note 15.

3

that “a district court may consider a hearsay statement in passing on a motion for
summary judgment if the statement could be ‘reduced to admissible evidence at trial’
or ‘reduced to admissible form.’” Macuba v. Deboer, 193 F.3d 1316, 1323 (11th Cir.
1999) (collecting cases).
1.

Conference call summary

Plaintiff’s briefs in opposition to summary judgment rely upon on a summary
of an August 18, 2011 telephone conference call that was prepared by Lieutenant
Colonel John Completo. Participants in that conference included representatives of:
the United States Army’s Southern Regional Medical Command; the Fox Army
Health Clinic on Redstone Arsenal, Alabama; the Centers for Disease Control and
Prevention in Atlanta; and, the Alabama Department of Public Health.17 Plaintiff
relies upon the following statement in the summary: “Unsure if cooling tower was
cleaned, discussion suggested orders were given to clean the cooling tower for a
second time — would need to confirm.”18
17

See doc. no. 72 (Plaintiff’s Opposition to Ashland’s Motion for Summary Judgment), at
10-11, 13, 19-20; see also doc. no. 99 (Plaintiff’s Opposition to Chugach’s Motion for Summary
Judgment), at 13-14.
18

See doc. no. 67-1 (Exhibit “O”: Legionella Cluster Investigation Report), at ECF 44.
“ECF” is the acronym for “Electronic Case Filing,” a system that allows parties to file and serve
documents electronically. See Atterbury v. Foulk, No. C-07-6256 MHP, 2009 WL 4723547, *6 n.6
(N.D. Cal. Dec. 8, 2009). Bluebook Rule 7.1.4 permits citations to the “page numbers generated by
the ECF header.” Wilson v. Fullwood, 772 F. Supp. 2d 246, 257 n.5 (D.D.C. 2011) (citing The
Bluebook: A Uniform System of Citation R. B. 7.1.4, at 21 (Columbia Law Review Ass’n et al., 19th
ed. 2010)). Even so, the Bluebook recommends “against citation to ECF pagination in lieu of
original pagination.” Wilson, 772 F. Supp. 2d at 257 n.5. Thus, unless stated otherwise, this court

4

Defendants contend that the quoted statement constitutes hearsay that cannot
be saved by any of the exceptions to the hearsay rule. Ashland also argues that the
evidence cannot be presented in an admissible form at trial, based upon the fact that
neither Lt. Col. Completo, nor the individual who uttered the statement, has been
disclosed as a witness.
Upon consideration, the court finds that defendants’ motions to strike are due
to be granted. The individual who made the summarized statements has not been
identified, and there is no way to determine whether that person has been designated
as a trial witness. Therefore, the court cannot assume that the statement can be
“reduced to admissible evidence at trial,” Macuba, 193 F.3d at 1323, and it will not
be considered when ruling upon defendants’ motions for summary judgment.
2.

Results of urine antigen test

Defendants also challenge plaintiff’s reliance on a portion of Mr. Mueller’s
Huntsville Hospital records indicating that a urine antigen test was conducted by the
Mayo Clinic in Jacksonville, Florida, and produced a positive result for the presence
of Legionella pneumophila.19 The contested portion of those records states that Mary
will cite the original pagination in the parties’ pleadings. When the court cites to pagination
generated by the ECF header, it will, as here, precede the page number with the letters “ECF.”
19

See doc. no. 76 (Ashland’s Objection to Inadmissible Hearsay Evidence Offered by
Plaintiff in Response to its Motion for Summary Judgment); see also doc. no. 103 (Chugach’s
Motion and Memorandum of Law in Support of Motion to Strike Statement of Dr. Jeffrey Garber
and Exclude Expert Opinions of Dr. Jeffrey Garber), at 7.

5

Cox, a registered nurse at Huntsville Hospital, spoke over the telephone with Sonya
Wilburn of the Mayo Clinic,20 who stated that the urine antigen test was positive.21
Defendants contend that the evidence is inadmissible hearsay, because plaintiff does
not have a record from the Mayo Clinic or testimony from an employee of the Mayo
Clinic proving that the urine antigen test was actually conducted and produced a
positive result.
Upon consideration, this court agrees with plaintiff’s argument that the results
of the test may be reduced to admissible evidence at trial, even though the evidence
consists of two levels of hearsay. Mr. Mueller’s Huntsville Hospital records are
admissible under the “business records” exception to the hearsay rule, as the records
of a regularly conducted activity. Federal Rule of Evidence 803(6) provides that “a
record of an act, event, condition, opinion, or diagnosis” will be excepted from the
hearsay rule if the following are satisfied:
(A) the record was made at or near the time by — or from
information transmitted by — someone with knowledge;
(B) the record was kept in the course of a regularly conducted
activity of a business organization, occupation, or calling, whether or
not for profit;

20

Sonya Wilburn’s position at the Mayo Clinic was not discussed in the parties’ briefs or the
evidentiary submissions.
21

See doc. no. 89-1 (Exhibit “A”: Huntsville Hospital Medical Records), at ECF 4.

6

(C) making the record was a regular practice of that activity;
(D) all these conditions are shown by the testimony of the
custodian or another qualified witness, or by a certification that
complies with Rule 902(11) or (12) or with a statute permitting
certification; and
(E) neither the source of information nor the method or
circumstances of preparation indicate a lack of trustworthiness.
Fed. R. Evid. 803(6) (emphasis supplied). Mary Cox’s notation in the hospital’s
records meets each of those conditions. The record indicates that the entry was made
at or near the time that she spoke with Sonya Wilburn of the Mayo Clinic.22 Further,
Huntsville Hospital is required to maintain medical records in the course of its
treatment of patients, and the process of preparing, updating, and storing those
records is a regular practice. In addition, the custodian of the records for Huntsville
Hospital signed a certification which states that the records produced were “an exact,
full, true and correct copy.”23 Finally, defendants have not pointed to any evidence
indicating a lack of trustworthiness in the source of the information.
Furthermore, the laboratory technician who performed the urine antigen test at
the Mayo Clinic could be called to testify, or the results of the urine antigen test
might be reflected in the business records of the Mayo Clinic, if they were offered
22

Id.

23

Id. at ECF 2.

7

through the custodian of those records. For all these reasons, the court will consider
the excerpt of Mr. Mueller’s medical records indicating a positive urine antigen test
when ruling upon the motions for summary judgment discussed later in this opinion.
B.

Motions to Exclude the Testimony of Dr. Jeffrey Garber
Defendants filed motions to exclude the sworn statement of Dr. Jeffrey Garber

on various grounds.24 They first argue that the testimony is due to be stricken,
because Dr. Garber was not disclosed as an expert before the January 18, 2013
deadline specified in the scheduling order for the disclosure of expert witnesses.25 In
response, plaintiff states that Dr. Garber was Mr. Mueller’s treating physician and,
as such, his sworn statement constitutes fact, and not “expert” testimony requiring
disclosure in accordance with that provision of the scheduling order.
The Eleventh Circuit has held that a treating physician may offer opinion
testimony under Federal Rule of Evidence 701, pertaining to “Opinion Testimony by
Lay Witnesses,”26 when the doctor’s opinion is “based on his experience as a
24

See doc. no. 78 (Ashland’s Objection to Proffer of Expert Opinion Testimony of Jeffrey
G. Garber, M.D.); see also doc. no. 103 (Chugach’s Motion and Memorandum of Law in Support
of Motion to Strike Statement of Dr. Jeffrey Garber and Exclude Expert Opinions of Dr. Jeffrey
Garber).
25

See doc. no. 16 (Scheduling Order).

26

Rule 701 provides:

If a witness is not testifying as an expert, testimony in the form of an opinion
is limited to one that is:

8

physician and [is] clearly helpful to an understanding of his decision making process
in the situation.” Williams v. Mast Biosurgery, USA, Inc., 644 F.3d 1312, 1316-17
(11th Cir. 2011) (alteration in original) (quoting Weese v. Schukman, 98 F.3d 542,
550 (10th Cir. 1996)). As a result, treating physicians are not subjected to the
strictures of Federal Rule of Evidence 702 and Federal Rule of Civil Procedure
26(a)(2) when their testimony concerns “observations based on personal knowledge,
including the treatment of a party.” Id. at 1317 (quoting Davoll v. Webb, 194 F.3d
1116, 1138 (10th Cir. 1999)). Even so, “when a treating physician’s testimony is
based on a hypothesis, not the experience of treating the patient, it crosses the line
from lay to expert testimony, and it must comply with the requirements of Rule 702
and the strictures of Daubert,” id., as well as the disclosure requirements of Federal
Rules of Civil Procedure 26(a)(2) and (b)(4).
Here, Dr. Garber testified that he had served as Mr. Mueller’s family physician
since 1998.27 In addition, Dr. Garber saw Mr. Mueller on July 29, 2011, and entered
(a) rationally based on the witness’s perception;
(b) helpful to clearly understanding the witness’s testimony or to determining
a fact in issue; and
(c) not based on scientific, technical, or other specialized knowledge within
the scope of Rule 702.
Fed. R. Evid. 701.
27

See doc. no. 107-1 (Exhibit “A”: Garber Statement), at 6.

9

the order for him to be admitted to Huntsville Hospital because of severe pneumonialike symptoms.28 Because of the severity of Mr. Mueller’s condition, Dr. Garber
requested the aid of specialists, including a hematologist, pulmonologist, and
infectious disease specialist.29 Even so, Dr. Garber visited Mr. Mueller each day to
monitor his prognosis, and collaborated with the other physicians in determining a
plan of treatment.30 Dr. Garber stated that Mr. Mueller was initially placed on a
regime of “broad spectrum antibiotics” in an effort to kill the bacteria suspected for
a community-acquired pneumonia, which he described as pneumonia involving the
germs traditionally found in the community.31 Mr. Mueller did not respond to those
antibiotics, however, and the team of physicians decided to test for the particular
bacteria causing his condition.32 At that point, Mr. Mueller was tested for Legionella,
and the urine antigen test conducted at the Mayo Clinic produced a positive result.33
While Dr. Garber stated that he did not personally make the decision to change the
antibiotics prescribed, as one of the team of physicians treating Mr. Mueller, he was
made aware that Mr. Mueller had been diagnosed with Legionnaires’ Disease, and

28

Id. at 9-10.

29

Id. at 11-12.

30

Id.

31

Id. at 12.

32

Id. at 13.

33

Doc. no. 107-1 (Exhibit “A”: Garber Statement), at 13.

10

that the course of treatment had been altered accordingly.34 Despite the best efforts
of the team of physicians, Mr. Mueller died a few days later.35
Based upon the fact that Dr. Garber consulted with the specialists at Huntsville
Hospital regarding the appropriate course of treatment and closely followed Mr.
Mueller’s care, his opinion regarding the cause of death is based upon his personal
experience of treating Mr. Mueller. See Williams, 644 F.3d at 1317. Thus, Dr.
Garber’s sworn statement will be treated as fact testimony for purposes of ruling upon
the motions for summary judgment discussed below, and the motion to strike is due
to be denied.36
Furthermore, as the author of Mr. Mueller’s death certificate,37 Dr. Garber may
testify as a fact witness. See Binakonsky v. Ford Motor Co., 133 F.3d 281, 290 (4th
Cir. 1998); see also Whelan v. Royal Caribbean Cruises Ltd., No. 1:12-cv-22481-UU,
2013 WL 5583609, at *5 (S.D. Fla. Aug. 13, 2013). Defendants have not moved to
exclude the death certificate, which is admissible as a public record of vital statistics.
Fed. R. Evid. 803(9). Therefore, Dr. Garber is the only witness competent to testify
with respect to the determinations made in and the contents of the death certificate.
34

Id. at 15-16.

35

Id. at 16.

36

Because the court finds that Dr. Garber has provided fact and not expert testimony, it will
not rule on Chugach’s argument that Dr. Garber’s expert opinion regarding Mr. Mueller’s cause of
death is unreliable and should be excluded.
37

See doc. no. 107-2 (Exhibit “B”: Alabama Death Certificate).

11

In addition, Chugach argues that the statement of Dr. Garber, made under oath
in question-and-answer format before a court reporter, should not be considered when
ruling upon the motions for summary judgment, because it was neither taken after
providing notice to defense counsel, nor signed by Dr. Garber. When faced with an
identical argument, the Eleventh Circuit held that “[s]worn statements given before
court reporters are at least as reliable as signed affidavits and are properly considered
on summary judgment.” Bozeman v. Orum, 422 F.3d 1265, 1267, n.1 (11th Cir.
2005) (citing In re Sunset Bay Associations, 944 F.2d 1503, 1510 (9th Cir. 1991);
10A Charles Alan Wright, Arthur R. Miller & Mary Kay Kayne, Federal Practice
and Procedure §§ 2721, 2724 (3d ed. 1998 & Supp. 2005)). Therefore, Chugach’s
motion to strike is due to be denied, and the court will consider the statement of Dr.
Garber.
C.

Motions to Exclude the Testimony of Dr. James Barbaree
Defendants also have filed motions to exclude the testimony of Dr. James

Barbaree.38 Federal Rule of Evidence 702 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
or otherwise if:
38

See doc. no. 80 (Ashland’s Objection to the Admission of the Expert Report and the
Opinion Testimony of James M. Barbaree, Ph.D. and, in the Alternative, Motion for Leave of Court
to Identify Expert Witnesses After the Court’s Deadline); see also doc. no. 84 (Chugach’s Motion
to Exclude the Expert Testimony of Dr. James Barbaree).

12

(a) the expert’s scientific, technical, or other specialized
knowledge will help the trier of fact to understand the evidence or to
determine a fact in issue;
(b) the testimony is based on sufficient facts or data;
(c) the testimony is the product of reliable principles and methods;
and
(d) the expert has reliably applied the principles and methods to
the facts of the case.
Fed. R. Evid. 702. That rule compels district courts to “conduct an exacting analysis
of the foundations of the expert opinions to ensure they meet the standards for
admissibility under Rule 702.” United States v. Abreu, 406 F.3d 1304, 1306 (11th
Cir. 2005) (quoting United States v. Frazier, 387 F.3d 1244, 1260 (11th Cir. 2004)
(internal quotation mark and emphasis omitted)).
[T]he objective of that requirement is to ensure the reliability and
relevancy of expert testimony. It is to make certain that an expert,
whether basing testimony upon professional studies or personal
experience, employs in the courtroom the same level of intellectual rigor
that characterizes the practice of an expert in the relevant field.
Kumho Tire Co., Ltd. v. Carmichael, 526 U.S. 137, 152 (1999) (alteration supplied).
“The inquiry . . . is a flexible one,” because “[m]any factors will bear on the inquiry,
and . . . [there is no] definitive checklist or test.” Daubert v. Merrell Dow
Pharmaceuticals, Inc., 509 U.S. 579, 593-94 (1993) (alterations supplied). Factors
that may be relevant include:
13

(1) whether the theory or technique can be (and has been) tested, (2)
whether the theory or technique has been subjected to peer review and
publication, (3) in the case of a particular . . . technique, the known or
potential rate of error, and (4) whether the theory or technique is
generally accepted by the relevant . . . community.
Hendrix ex rel. G.P. v. Evenflo Co., Inc., 609 F.3d 1183, 1194 (11th Cir. 2010)
(internal quotation marks and alterations omitted).39
1.

Dr. Barbaree’s background and qualifications

Dr. Barbaree holds an undergraduate and master’s degree in microbiology, and
a doctorate degree in bacteriology.40 He has worked in academia at both the
University of West Florida and Auburn University, and for the Centers for Disease
Control and Prevention (“CDC”) in Atlanta, Georgia.41 Dr. Barbaree began working

39

Additional factors that may be taken into account by a district court include:

(1) Whether the expert is proposing to testify about matters growing naturally
and directly out of research he has conducted independent of the litigation, or
whether he has developed his opinion expressly for purposes of testifying;
(2) Whether the expert has unjustifiably extrapolated from an accepted to an
unfounded conclusion;
(3) Whether the expert is being as careful as he would be in his regular
professional work outside his paid litigation consulting;
(4) Whether the field of expertise claimed by the expert is known to reach
reliable results for the type of opinion the expert would give.
Fed. R. Evid. 702 advisory committee’s note to 2000 amendments (internal citations omitted).
40

See doc. no. 74-2 (Deposition of James Barbaree, Ph.D.), at 8-9.

41

Id. at 48, 287, 334.

14

for the CDC as a microbiologist in 1972.42 When he left the CDC approximately
twenty years later, he had risen to Chief of the Respiratory Disease Epidemic
Investigations Lab.43 In that position, he was responsible for all laboratory work
conducted as part of a Legionnaires’ Disease investigation.44 He participated in over
thirty Legionella investigations throughout his career at the CDC.45
2.

Dr. Barbaree’s report

Dr. Barbaree submitted an expert report on May 27, 2013, and concluded that
Mr. Mueller “contracted Legionnaires’ Disease while working and being around the
cooling tower at building 5681, Redstone Arsenal, Alabama.”46 He indicated that his
conclusions were based upon a review of materials produced during the course of this
litigation, as well as upon the basis of his experiences as a medical microbiologist and
as a laboratory manager and team member on epidemic investigations of
Legionnaires’ Disease during his career at the CDC.47
Dr. Barbaree’s conclusion that Mr. Mueller contracted Legionnaires’ Disease
from the cooling tower adjacent to Building 5681 on Redstone Arsenal was based on

42

Id. at 290.

43

Id.

44

Id. at 13.

45

Id. at 291.

46

See doc. no. 74-1 (Opinion of James Barbaree, Ph.D.), at ECF 2.

47

Id.

15

several factors, including the following considerations:

(1) other “employees

exhibiting symptoms that could have been connected with LD [i.e., Legionnaires’
Disease]”; (2) the fact that Legionella pneumophila and other species of Legionella
were found in water samples taken from the cooling tower; (3) records showing that
the preventive maintenance on the cooling tower at Building 5681 was “questionable
in being effective”; and (4) the fact that Mr. Mueller “spent time around the cooling
tower since he often smoked in that area.”48
a.

Other employees

When addressing the subject of the other employees in the same workplace
who also had exhibited symptoms of Legionnaires’ Disease, Dr. Barbaree
acknowledged that Mr. Mueller was the only confirmed case of that disease. Seven
other employees also were tested by means of a urine antigen test, but none were
confirmed as having the disease.49 Even so, he explained that a false urine antigen
test does not conclusively show that an individual does not have the disease, because
the antigen may or may not be present when the urine sample is taken.50 Therefore,
he opined that the other employees taking the urine test could not be confirmed as

48

Id. at ECF 3-4 (alterations supplied).

49

Id. at ECF 4.

50

Id.

16

either having or not having the disease.51
b.

Water samples

Further, Dr. Barbaree disagreed with the conclusion stated in the Legionella
Cluster Investigation Report promulgated by the Southern Regional Medical
Command (“Legionella Cluster Investigation”): i.e., that the amount of Legionella
pneumophila found in the water samples gathered from Mr. Mueller’s workplace was
“a safe low level.”52 Specifically, Dr. Barbaree stated:
I do not believe that a CDC epidemiologist who is experienced with LD
outbreak investigations would agree with the statement that a low level
is safe. Legionella can be present at a low level one day in that sample
(another sample at another sampling site may be positive at a high level)
and subsequently high soon after. In one of my research projects at the
CDC, we took water samples that had amoebae (most water samples
taken in outbreak investigations have protozoa such as amoebae) were
negative [sic] and incubated them to see if they became positive, and
high counts of L. pneumophila were shown in some of these water
samples.53
c.

Preventive maintenance

Dr. Barbaree’s questioning of the effectiveness of the cooling tower’s
preventive maintenance was largely based upon the gap in service records from
March 24–July 14, 2011.54 From that gap, he inferred that there were no disinfectant
51

Id. at ECF 4-5.

52

Doc. no. 74-1 (Opinion of James Barbaree, Ph.D.), at ECF 5.

53

Id. (alteration supplied, emphasis in original).

54

Id.

17

readings taken at Building 5681 for at least 110 days.55 He stated that the free
chlorine level was 0.8 parts per million (“ppm”) on July 14, 2011, but a level greater
than 2.0 ppm is necessary to effectively reduce the growth of bacteria.56 Dr. Barbaree
also noted that the tower needed to be cleaned twice to eliminate the presence of
Legionella.57 Further, the July 14, 2011 pH value was 8.2 ppm, but pH should be
maintained below 8.0 ppm, so that chlorine is “free to react with the bacteria.”58 Dr.
Barbaree also stated that the cooling tower should have been cleaned after it was shut
down for seven days in 2011, following the tornado outbreaks that swept across the
State of Alabama.59
3.

Dr. Barbaree’s deposition testimony

Dr. Barbaree testified during deposition that, in his opinion, Mr. Mueller “most
likely” was exposed to Legionella pneumophila bacteria that bred in the waters of the
cooling tower adjacent to Building 5681.60 When questioned about the methodology
that undergirded his opinion, Dr. Barbaree said that he examined the materials
provided to him by plaintiff’s counsel, and relied upon his experience and training as

55

Id.

56

Id.

57

Id.

58

Doc. no. 74-1 (Opinion of James Barbaree, Ph.D.), at ECF 5.

59

Id.

60

See doc. no. 74-2 (Deposition of James Barbaree, Ph.D.), at 135.

18

a microbiologist and CDC laboratory manager.61 In response to questions concerning
whether his methodology had been tested, Dr. Barbaree stated: “I don’t think you can
test in each situation such as this in an expert witness testimony. There’s no way you
can absolutely test it with all the facts that are presented.”62 He also testified that he
did not know of a peer-reviewed article or publication that approved of his
methodology.63
In addition, Dr. Barbaree stated that he did not conduct testing in an attempt
to rule out the possibility of other sources for Mr. Mueller’s Legionnaires’ Disease.64
While Dr. Barbaree acknowledged the possibility that Mr. Mueller could have been
exposed to Legionella through his use of a home humidifier, showerhead, or water
fountain, he testified that he did not inspect or sample any other potential sources
because the information he had been provided did not indicate that Legionella had
been found at those locations.65
When questioned about the need for additional water and air sampling, Dr.
Barbaree testified that, while he had inspected and conducted air sampling in prior
CDC investigations to determine whether water droplets were being released from
61

Id. at 123.

62

Id. at 128.

63

Id. at 124-26.

64

Id. at 134-37.

65

Id. at 51-52, 66-69, 134-37, 141, 179.

19

cooling towers, he did not do so in this case.66 In addition, he stated that he did not
inspect the cooling tower, the smoking area near the cooling tower, or Building 5681
before forming his opinion.67 Dr. Barbaree also testified that he did not take wind
measurements to determine the direction in which water droplets or vapor emanating
from the cooling tower might travel, or whether such vapors could reach the smoking
area allegedly frequented by the deceased.68
Dr. Barbaree testified that he did not believe that even one colony-forming unit
per milliliter of Legionella was safe, despite the fact that guidelines promulgated by
the Occupational Safety and Health Administration (“OSHA”) set an “action level”
of 100 colony-forming units per milliliter.69 When questioned about that opinion, Dr.
Barbaree stated that he could not identify anyone other than himself who would agree
that an amount as small as one colony-forming unit per milliliter is dangerous. He
also testified that he was not aware of any published guideline or study that specifies
a recommended standard that is lower than the OSHA guideline, or one that discussed
a case in which an individual had contracted Legionnaires’ Disease from a cooling
tower with a concentration of Legionella pneumophila as low as one colony-forming

66

Doc. no. 74-2 (Deposition of James Barbaree, Ph.D.), at 15-16.

67

Id. at 44, 57, 86-87.

68

Id. at 58.

69

Id. at 73-76; see also doc. no. 74-1 (Opinion of James Barbaree, Ph.D.), at ECF 3.

20

unit per milliliter.70 When questioned about the OSHA “action level,” Dr. Barbaree
testified that he believed it was “difficult to say that there is a safe level of Legionella
pneumophila, because in the ecology of the organism, when you sample . . . you may
be sampling at a time when the organism hasn’t been amplified up,[71] or you may be
sampling in the wrong place.”72
When questioned about his opinion that Mr. Mueller was exposed to
Legionella pneumophila from the cooling tower as a result of being in the smoking
area outside Building 5681, in the shadow of the tower, Dr. Barbaree stated that he
had been informed by plaintiff’s counsel that Mr. Mueller was a smoker.73 He also
testified that he believed he had read such information in a deposition, but he could
not recall the specific deposition.74
4.

Analysis

Defendants have raised various challenges to this court’s consideration of Dr.

70

See doc. no. 74-2 (Deposition of James Barbaree, Ph.D.), at 81-82.

71

Dr. Barbaree described how Legionella may be “amplified” in his expert report:

Legionella can live in a planktonic state in water before being disseminated via a
mist, but thrive mainly in water by being taken in by protozoa and multiplying
intracellularly until the protozoa cell bursts, releasing many legionellae.
Doc. no. 74-1 (Opinion of James Barbaree, Ph.D.), at ECF 3 (internal citation omitted).
72

Doc. no. 74-2 (Deposition of James Barbaree, Ph.D.), at 81-82.

73

Id. at 59.

74

Id. at 59-60.

21

Barbaree’s opinion testimony when ruling upon their motions for summary judgment,
as well as its admission at trial, in the event summary judgment should be denied.
Defendants first object to Dr. Barbaree’s qualifications to render an opinion.
Specifically, Ashland challenges Dr. Barbaree’s general qualifications, while
Chugach only contends that he is not qualified to render an opinion regarding the
specific issue of the maintenance of the Building 5681 cooling tower.
Defendants also argue that Dr. Barbaree’s testimony should be excluded
because it is not based on sufficient facts or data, and because he failed to apply
reliable methodology in a reliable fashion.75
In addition, Ashland argues that Dr. Barbaree’s testimony will not assist the
trier of fact.76
a.

Dr. Barbaree’s qualifications

Ashland first asserts that Dr. Barbaree is not qualified to offer an opinion in
this case, because “he is not an epidemiologist, has never led a legionella
investigation, and does not know the methodology by which causal inferences are
reached by epidemiologists in assessing possible legionella exposures.”77 While Dr.
75

See doc. no. 81 (Ashland’s Brief in Support of its Motion to Exclude the Testimony of Dr.
Barbaree); see also doc. no. 84 (Chugach’s Motion to Exclude the Expert Testimony of Dr. James
Barbaree).
76

Doc. no. 81 (Ashland’s Brief in Support of its Motion to Exclude the Testimony of Dr.
Barbaree), at 25-28.
77

Id. at 4-5.

22

Barbaree’s degree is in microbiology and not epidemiology, he has more than twenty
years of experience with the CDC, during which time he participated in numerous
investigations of Legionella outbreaks.78 Therefore, Dr. Barbaree is qualified to offer
expert opinion testimony concerning the potential causes of Mr. Mueller’s contraction
of Legionnaires’ Disease by virtue of the knowledge, skill, and experience that he
garnered during his extensive career. See Fed. R. Evid. 702 (providing that a witness
may be qualified as an expert by virtue of his “knowledge, skill, experience, training,
or education”).
Chugach objects to Dr. Barbaree’s qualifications to offer opinion testimony
about cooling tower maintenance: specifically, that portion of his written report that
questioned the effectiveness of the preventive maintenance performed on the Building
5681 cooling tower.79 As Chugach notes, Dr. Barbaree testified that he: is not an
expert in cooling tower or HVAC maintenance; has no training in industrial hygiene;
and, has no training regarding design or maintenance of industrial HVAC systems or
cooling towers.80
In response, plaintiff states that Dr. Barbaree “does not seek to offer expert

78

See doc. no. 74-2 (Deposition of James Barbaree, Ph.D.), at 288.

79

See doc. no. 84 (Chugach’s Motion to Exclude the Expert Testimony of Dr. James
Barbaree), at 20-22; see also doc. no. 74-1 (Opinion of James Barbaree, Ph.D.), at ECF 5.
80

See doc. no. 74-2 (Deposition of James Barbaree, Ph.D.), at 9-10, 22, 346.

23

testimony regarding how a cooling tower should be maintained,” but, instead, seeks
to offer opinions limited to his experience in the investigation of Legionella outbreaks
and the conditions in which Legionella pneumophila flourish.81 Thus, plaintiff asserts
that Dr. Barbaree should be allowed to offer opinions regarding the cooling tower’s
water chemistry and its effect on the potential for Legionella pneumophila growth.82
Because of Dr. Barbaree’s experience in investigating Legionella outbreaks,
he is qualified to testify concerning the conditions under which that bacteria
flourishes. Therefore, he may testify concerning the water chemistry at the cooling
tower, and how such chemistry might effect the growth of Legionella. Even so, Dr.
Barbaree should not be permitted to testify as to the proper maintenance of a cooling
tower, or whether defendants complied with prevailing maintenance standards within
the relevant industry.
b.

Reliability

Defendants contend that Dr. Barbaree’s testimony is not reliable. Specifically,
they argue that Dr. Barbaree’s conclusions are not based upon sufficient facts or data,
because his opinion that Mr. Mueller was exposed to Legionella in the outdoor
smoking area near the cooling tower of Building 5681 is based on assumptions, and
81

See doc. no. 96 (Plaintiff’s Response in Opposition to Chugach’s Motion to Exclude the
Expert Testimony of Dr. James Barbaree), at 13.
82

Id.

24

not supported by evidence; because his opinion that the cooling tower was not being
properly maintained is based on false assumptions; because he did not test for other
potential sources of Legionella; and because the amount of Legionella found in the
water sample was far below the action level specified in OSHA regulations.
Additionally, defendants attack Dr. Barbaree’s methodology as being of his own
creation, and not subjected to testing or peer review.
The court is not persuaded by defendants’ arguments. While Dr. Barbaree
could not recall the basis for his opinion that Mr. Mueller frequented the smoking
area in question during his deposition, Mrs. Mueller testified that her husband was
a smoker, and that he regularly took smoke breaks during the work day at the
designated area outside of Building 5681.83
The remaining objections raised by defendants regarding Dr. Barbaree’s
statements concerning the smoking area — i.e., that he did not observe or inspect the
building or smoking area, and that he did not calculate the drift of water vapor or
measure the direction of the winds in the area — are more properly viewed as crossexamination material that may affect the weight to be accorded the testimony by the
finders of fact, but not its admissibility. As the Eleventh Circuit stated in Quiet
Technology DC-8, Inc. v. Hurel-Dubois UK Ltd., 326 F.3d 1333 (11th Cir. 2003):
83

See doc. no. 87-1 (Deposition of Linda Mueller), at 50-52.

25

In the end, although “[r]ulings on admissibility under Daubert
inherently require the trial court to conduct an exacting analysis of the
proffered expert’s methodology,” McCorvey [v. Baxter Healthcare
Corp.,] 298 F.3d [1253,] 1256 [(11th Cir. 2002)], it is not the role of the
district court to make ultimate conclusions as to the persuasiveness of
the proffered evidence. Indeed, as we said in Maiz [v. Virani, 253 F.3d
641 (11th Cir. 2001)], “[a] district court’s gatekeeper role under Daubert
‘is not intended to supplant the adversary system or the role of the
jury.’” 253 F.3d at 666 (quoting Allison v. McGhan, 184 F.3d 1300,
1311 (11th Cir. 1999)). Quite the contrary, “[v]igorous crossexamination, presentation of contrary evidence, and careful instruction
on the burden of proof are the traditional and appropriate means of
attacking shaky but admissible evidence.” Daubert, 509 U.S. at 596,
113 S. Ct. at 2798 . . . .
Id. at 1341 (first, sixth and seventh alterations in original, all other alterations
supplied).
Defendants also assert that Dr. Barbaree’s opinion that the cooling tower was
not being properly maintained is based on false assumptions. Defendants first argue
that Dr. Barbaree’s assumption that the chemical levels were not monitored for a 110day period is in direct contradiction with the depositions of two Chugach employees,
David Dyer and Chris Hester. In their depositions, those employees relied on Mr.
Dyer’s personal notes which reflected six adjustments to the biocide injection system
from March 24 to July 14, 2011.84 Even so, as Dr. Barbaree noted in his report, there
is no record that Ashland — the entity responsible for reading and adjusting the water
84

See doc. no. 87-7 (Deposition of David Dyer), at 131-33; see also doc. no. 87-8
(Deposition of Chris Hester), at 54-55, 140.

26

chemistry of the cooling tower — made a service visit to the tower during that 110day period.85 Because this issue appears to be in dispute, it is not a proper basis for
excluding the testimony of Dr. Barbaree as unreliable, but is again material for use
during cross-examination, to affect the weight the jury may choose to give the
testimony, but not its admissibility. See Quiet Technology, 326 F.3d at 1341.
Defendants next argue that Dr. Barbaree’s assumption that the cooling tower
was cleaned twice is based on false assumptions. In his expert report, Dr. Barbaree
stated that, “when the tower was cleaned later, it had to be cleaned twice to show no
Legionella.”86

Dr. Barbaree’s assumption is drawn from Lt. Col. Completo’s

telephone conference call summary, which includes this statement: “Unsure if cooling
tower was cleaned, discussion suggested orders were given to clean the cooling
towers for a second time — would need to confirm.”87 This court previously held that
the conference call summary should be stricken from the record, because it constitutes
inadmissible hearsay evidence. Even so, “expert opinions based on otherwise
inadmissible hearsay” may be admitted, “if the facts or data are ‘of the type
reasonably relied upon by experts in the particular field in forming opinions or

85

See doc. no. 74-1 (Opinion of James Barbaree, Ph.D.), at ECF 5; see also doc. no. 74-2
(Deposition of James Barbaree, Ph.D.), at 88-89, 104.
86

See doc. no. 74-1 (Opinion of James Barbaree, Ph.D.), at ECF 5.

87

See doc. no. 67-1 (Exhibit “O”: Legionella Cluster Investigation Report), at ECF 44.

27

inferences upon the subject.’” Daubert, 509 U.S. at 595 (citing Fed. R. Evid. 703).
Upon consideration, this court finds that the contents of the Legionella Cluster
Investigation Report, including all of its enclosures, are “of the type reasonably relied
upon by experts” in Dr. Barbaree’s field. Id.
In addition, Ashland contends that Dr. Barbaree’s testimony is unreliable
because he failed to test other potential sources of the Legionella contamination.
Specifically, Ashland asserts that Dr. Barbaree merely assumed Mr. Mueller was not
exposed to Legionella that bred in the hot water heaters or plumbing systems of the
apartment he occupied during the period in which Mr. Mueller was separated from
his wife, or in his wife’s home, even though Dr. Barbaree acknowledged that such
systems are known sources for Legionella.88 Again, Dr. Barbaree’s failure to test
other potential sources of Mr. Mueller’s illness goes to the weight, rather than the
admissibility, of his expert opinion. See Quiet Technology, 326 F.3d at 1341.
Ashland further asserts that Dr. Barbaree’s expert opinion is not based upon
sufficient facts or data, because only one colony-forming unit per milliliter of
Legionella bacteria was found in the cooling tower’s water sample, while OSHA
regulations indicate that an “action level” is 100 colony-forming units.89 While the
88

See doc. no. 81 (Ashland’s Brief in Support of its Motion to Exclude the Expert Testimony
of Dr. Barbaree), at 20-21.
89

Id. at 20.

28

amount of Legionella found in the water samples was much lower than that of
OSHA’s action level, Dr. Barbaree’s opinion that a low level of Legionella should
not be characterized as “safe” was based upon personal experience acquired during
his extensive career of investigating Legionella outbreaks, and does not make his
opinion inherently unreliable. Therefore, this challenge also goes more to the weight
of Dr. Barbaree’s expert opinion, rather than its admissibility. Id.
Additionally, the fact that Dr. Barbaree based his testimony on his own
experience, and could not cite any peer-reviewed article or publication approving his
methodology, does not necessarily disqualify him as an expert. See Fed. R. Evid.
702, advisory committee’s notes to 2000 amends. (“Nothing in this amendment is
intended to suggest that experience alone . . . may not provide a sufficient foundation
for expert testimony . . . . In certain fields, experience is the predominant, if not sole,
basis for a great deal of reliable expert testimony.”) Instead, it must be established,
by considerations other than the expert’s experience, that his methodology is reliable.
Cf. United States v. Frazier, 387 F.3d 1244, 1260-61 (11th Cir. 2004) (“Of course,
the unremarkable observation that an expert may be qualified by experience does not
mean that experience, standing alone, is a sufficient foundation rendering reliable any
conceivable opinion the expert may express.”) (emphasis in original).
c.

Relevance
29

Ashland next asserts that Dr. Barbaree’s testimony will not assist the trier of
fact, because there is “an analytical chasm between the data . . . and [his] proffered
opinion.”90 Therefore, Ashland contends that his testimony “is merely a conclusion
at which the jurors could arrive on their own and that requires no scientific or
specialized knowledge.”91 The Supreme Court addressed the subject of the relevance
of proffered expert testimony in Daubert, saying:
Rule 702 . . . requires that the evidence or testimony “assist the trier of
fact to understand the evidence or to determine a fact in issue.” This
condition goes primarily to relevance. “Expert testimony which does
not relate to any issue in the case is not relevant and, ergo, non-helpful.”
3 Weinstein & Berger ¶ 702[02], p. 702-18. See also United States v.
Downing, 753 F.2d 1224, 1242 (CA3 1985) (“An additional
consideration under Rule 702 — and another aspect of relevancy — is
whether expert testimony proffered in the case is sufficiently tied to the
facts of the case that it will aid the jury in resolving a factual dispute”).
The consideration has been aptly described . . . as one of “fit.” Ibid.
Daubert, 509 U.S. at 591.
There simply is no question that Dr. Barbaree’s testimony is relevant in the first
sense discussed in Daubert, because a central issue in this case will concern the
underlying exposure to Legionella that caused Mr. Mueller’s illness. Furthermore,
Dr. Barbaree’s expert opinion is sufficiently tied to the facts of the case because,
when forming his opinion, he considered these facts: other employees had exhibited
90

Id. at 25-28 (alteration supplied).

91

Id.

30

symptoms that could be connected to Legionnaires’ Disease; bacteria was found in
water samples taken from the cooling tower; there was a potential 110-day period
during which the cooling tower was not chemically treated; and, Mr. Mueller spent
time in the outside designated smoking area near the cooling tower.92 Therefore, his
expert opinion has “a valid scientific connection to the disputed facts in the case.”
Quiet Technology, 326 F.3d at 1347-48 (quoting Allison, 184 F.3d at 1312).
5.

Unsworn report

Ashland next asserts that Dr. Barbaree’s report should be stricken because it
is not a sworn statement.93 In response, plaintiff contends that the defect was
corrected when Dr. Barbaree recognized and identified his report under oath during
his deposition.94 Plaintiff also argues that, because the report was provided to
Ashland in June of 2013, there would be no prejudice to defendants by allowing a
verification to be added now.95
Only “pleadings, depositions, answers to interrogatories, and admissions
on file, together with affidavits” can be considered by the district court
in reviewing a summary judgment motion. Fed. R. Civ. P. 56(c)
(emphasis added). “Supporting and opposing affidavits shall be made
on personal knowledge, shall set forth such facts as would be admissible
92

See doc. no. 74-1 (Opinion of James Barbaree, Ph.D.), at ECF 4-5.

93

See doc. no. 81 (Ashland’s Brief in Support of its Motion to Exclude the Expert Testimony
of Dr. Barbaree), at 2-4.
94

See doc. no. 91 (Plaintiff’s Opposition to Ashland’s Motion to Exclude Dr. Barbaree’s
Expert Report), at 2-3.
95

Id. at 3.

31

in evidence, and shall show affirmatively that the affiant is competent
to testify to the matters related therein.” Fed. R. Civ. P. 56(e). Unsworn
statements “do [ ] not meet the requirements of Fed. Rule Civ. Proc.
56(e)” and cannot be considered by a district court in ruling on a
summary judgment motion. Adickes v. S.H. Kress & Co., 398 U.S. 144,
158 n.17, 90 S. Ct. 1598, 1608-09 n. 17, 26 L. Ed. 2d. 142 (1970).
Carr v. Tatangelo, 338 F.3d 1259, 1273 n.26 (11th Cir. 2003) (emphasis and
alterations in original).
Even so, Federal Rule of Civil Procedure 56(e)(1) provides that, “[i]f a party
fails to properly support an assertion of fact[,] . . . the court may give an opportunity
to properly support . . . the fact.” Fed. R. Civ. P. 56(e)(1) (alterations supplied).
Consistent with that rule, a “number of district courts have permitted affidavits to
cure previously unsworn materials.” DG & G, Inc. v. FlexSol Packaging Corp. of
Pompano Beach, 576 F.3d 820, 826 (8th Cir. 2009); see also Hudson v. Pennsylvania
Life Insurance Co., Civil Action No. CV-12-S-2225-NE, 2013 WL 3242877, at *10
(N.D. Ala. June 21, 2013); Volterra Semiconductor Corp. v. Primarion, Inc., 796 F.
Supp. 2d 1025, 1038-39 (N.D. Cal. 2011) (overruling an objection to unsworn expert
reports where the proponent provided a sworn declaration from the expert with the
challenged reports attached); Strauss v. DVC Worldwide, Inc., 484 F. Supp. 2d 620,
634 (S.D. Tex. 2007) (“While filing [an] unsworn expert report did not constitute
admissible summary judgment evidence, see Fed. R. Civ. P. 56(e), that deficiency was

32

cured by filing the sworn declaration . . . .”) (alteration supplied); Medtronic Xomed,
Inc. v. Gyrus ENT LLC, 440 F. Supp. 2d 1300, 1310 n.6 (M.D. Fla. 2006) (holding
that an expert report was properly before the court in considering motions for
summary judgment because the expert had identified his unsworn report during his
deposition); Maytag Corp. v. Electrolux Home Products, Inc., 448 F. Supp. 2d 1034,
1064 (N.D. Iowa 2006) (“This court concludes that subsequent verification or
reaffirmation of an unsworn expert’s report, either by affidavit or deposition, allows
the court to consider the unsworn expert’s report on a motion for summary
judgment.”); Gache v. Town of Harrison, 813 F. Supp. 1037, 1052 (S.D.N.Y. 1993)
(“To the extent defendants seek to strike the submissions . . . as unsworn reports by
experts, the issues have been mooted by plaintiff’s submission of sworn declarations
by each of these individuals swearing to the veracity of their statements.”).
Because Ashland received a copy of the report in June of 2013, more than two
months before plaintiff responded to its motion for summary judgment, and because
plaintiff submitted the August 12, 2013 deposition of Dr. Barbaree — in which the
expert report was identified under oath and marked as an exhibit — in opposition to
the motions for summary judgment, Dr. Barbaree’s expert report is properly before
the court in opposition to defendants’ motions for summary judgment.
6.

Ashland’s alternative motion for time to obtain and disclose experts
33

Because this court will overrule defendants’ motions to exclude the testimony
of Dr. Barbaree, it must now address Ashland’s alternative motion for “a reasonable
time, at least 30 days, within which to obtain and disclose one or more experts to
address any expert opinions of Dr. Barbaree . . . .”96
According to the initial scheduling order entered in this case, plaintiff was
required to disclose her experts on or before January 18, 2013, and defendants were
required to disclose their experts on or before February 22, 2013.97 This court later
extended the deadline for defendants to disclose their experts to May 23, 2013, and
the deadline for dispositive motions to August 1, 2013.98 Plaintiff did not disclose
any expert witnesses before her January 18, 2013 deadline. Even so, on May 9, 2013,
plaintiff requested leave of court to file the expert report of Dr. Barbaree after the
deadline,99 which this court granted on August 1, 2013.100 Therefore, Ashland asserts
that it did not have a reason to retain and disclose an expert by its May 23, 2013
deadline, and should now be allowed a reasonable time within which to obtain experts
to address the opinions of Dr. Barbaree.

96

Doc. no. 81 (Ashland’s Brief in Support of its Motion to Exclude the Expert Testimony
of Dr. Barbaree), at 28-29.
97

See doc. no. 16 (Scheduling Order).

98

See doc. no. 40 (Order dated Apr. 3, 2013).

99

See doc. no. 41 (Motion for Leave to File Expert Witness Report After Deadline).

100

See doc. no. 68 (Order dated Aug. 1, 2013).

34

Ashland failed to note in its motion, however, that this court also extended the
deadline for conducting discovery on expert witnesses until August 21, 2013 when
it granted plaintiff’s motion for leave to file Dr. Barbaree’s report out of time.101 At
the very least, Ashland should have filed a motion for leave to retain its own expert
during that period, and the court would then also have entertained a further extension
of the deadlines for discovery and dispositive motions. Therefore, Ashland’s motion
for a reasonable time to obtain an expert will be denied.
D.

Chugach’s Motion to Strike Ashland’s Reply Brief
Chugach asks the court to strike the reply brief that was submitted by Ashland

in support of its motion for summary judgment on Chugach’s crossclaims,102 and cites
Ashland’s non-compliance with Appendix II of the Uniform Initial Order entered in
this case.103 Specifically, Chugach asserts that Ashland’s thirteen-page reply brief
exceeds the ten-page limitation dictated by the Uniform Initial Order.104 In addition,
Chugach contends that Ashland violated the Uniform Initial Order when it addressed
Chugach’s disputes with the allegedly undisputed facts set out in the initial motion
101

Id.

102

See doc. no. 82 (Ashland’s Reply Brief in Support of its Motion for Summary Judgment
on Chugach’s Crossclaims).
103

See doc. no. 105 (Chugach’s Motion to Strike Ashland’s Reply Brief in Support of its
Motion for Summary Judgment); see also doc. no. 14 (Uniform Initial Order).
104

See doc. no. 14 (Uniform Initial Order), at 13 (stating that “[r]eply briefs are limited to ten
pages.”) (alteration supplied).

35

for summary judgment.105
Ashland filed its motion for summary judgment on July 31, 2013.106 This court
granted plaintiff’s motion to file the expert report of Dr. James Barbaree out of time
one day later.107 Because of plaintiff’s four-month delay in filing that report,
however, this court entered an amended scheduling order which allowed for
additional discovery and extended the deadline for dispositive motions from August
1, 2013 to September 20, 2013.108
Following the entry of that order, plaintiff’s counsel took the depositions of
Chugach employees David Dyer and Chris Hester on August 15, 2013.109 Ashland
asserts that Chugach relied heavily on those depositions in its response brief, and that
such testimony was not available when Ashland filed its initial motion for summary
judgment.110 Further, in its reply brief, Ashland acknowledged that portions of its
brief were not permissible under the specific terms of the Uniform Initial Order, and
sought “leave of Court” to address Chugach’s assertions that were based upon those
105

Id. at 16 (“The reply submission, if any, shall consist of only the moving party’s disputes,
if any, with the non-moving party’s additional claimed disputed and undisputed facts”) (emphasis
supplied).
106

See doc. no. 64 (Ashland’s Motion for Summary Judgment on Claims Made Against it by
Chugach).
107

See doc. no. 68 (Order dated Aug. 1, 2013).

108

Id. at 15-16.

109

See doc. no. 106 (Ashland’s Response to Chugach’s Motion to Strike Ashland’s Reply
Submission) ¶ 2.
110

Id. ¶ 3.

36

belated depositions.111 Therefore, the motion to strike Ashland’s reply brief will be
denied.
E.

Ashland’s Motion to Strike the Declaration of Chris Hester
Chugach submitted a declaration from Chris Hester, its HVAC Mechanical

Supervisor for Redstone Arsenal, in support of its motion for summary judgment on
all of plaintiff’s claims.112 Mr. Hester identified and sought to authenticate Chugach’s
subcontract with Ashland, and various documents relating to the extension of that
contract.113 Ashland filed a “response” to Chugach’s motion, stating that it did not
oppose the entry of summary judgment in favor of Chugach, but arguing,
nevertheless, that Chris Hester’s declaration should be stricken. Ashland stated three
different grounds for that contention: (1) the declaration contradicted Hester’s sworn
deposition testimony; (2) Hester lacked personal knowledge to authenticate the
exhibits to his declaration; and (3) the declaration was a belated and backdoor means
of submitting evidence in opposition to Ashland’s motion for summary judgment on
Chugach’s crossclaims.114
The Eleventh Circuit has held that “a party cannot give ‘clear answers to
111

See doc. no. 82 (Ashland’s Reply Brief in Support of its Motion for Summary Judgment
on Chugach’s Crossclaims), at 8 n.2.
112

See doc. no. 85 (Chugach’s Motion for Summary Judgment).

113

See doc. no. 87-13 (Declaration of Chris Hester).

114

See doc. no. 88 (Ashland’s Response to Chugach’s Motion for Summary Judgment), at

2.

37

unambiguous questions’ in a deposition and thereafter raise an issue of material fact
in a contradictory affidavit that fails to explain the contradiction.” Rollins v.
TechSouth, Inc., 833 F.2d 1525, 1530 (11th Cir. 1987) (quoting Van T. Junkins and
Associates, Inc. v. U.S. Industries, Inc., 736 F.2d 656, 657 (11th Cir. 1984)). The
Eleventh Circuit has cautioned, however, that this so-called “sham affidavit” rule
should be applied “‘sparingly because of the harsh effect it may have on a party’s
case.’” Allen v. Board of Public Education for Bibb County, 495 F.3d 1306, 1316
(11th Cir. 2007) (quoting Rollins, 833 F.2d at 1530). Indeed, courts are advised to
be careful to distinguish “between discrepancies which create
transparent shams and discrepancies which create an issue of credibility
or go to the weight of the evidence.” Tippens v. Celotex Corp., 805 F.2d
949, 953 (11th Cir. 1986).
[E]very discrepancy contained in an affidavit does not
justify a district court’s refusal to give credence to such
evidence. In light of the jury’s role in resolving questions
of credibility, a district court should not reject the content
of an affidavit even if it is at odds with statements made in
an early deposition.
Id. at 954 (quoting Kennett-Murray Corp. v. Bone, 622 F.2d 887, 894
(5th Cir. 1980)) (alteration in original) (citation omitted).
Faulk v. Volunteers of America, 444 F. App’x 316, 318 (11th Cir. 2011).
Ashland asserts that Hester’s declaration is inadmissible because it contradicts
his sworn deposition statement that he had never seen the contract between Chugach

38

and Ashland:
Q.
Now, are you familiar with the agreement between Ashland
and Chugach as it relates to cooling water treatment?
A.

When you say familiar?

Q.

Have you seen it?

A.

This? No, I have not.

Q.
Well, is it your understanding or were you ever told —
were you ever told or instructed by your supervisors that the agreement
with Ashland stated that Ashland was to provide once a week routine
plant service visit[s] for each listed boiler and 25 percent of the listed
cooling towers?
A.
No, I was not told by my supervisor that, my boss, that was
the agreement.
Q.

You were never told that?

A.

No.

Q.
You never knew that the agreement between Chugach and
Ashland stated that Ashland was to provide once a week routine plant
service visit[s] for each listed boiler and 25 percent of the listed cooling
towers?
A.

I knew that, but I was not told by him that.

Q.

How did you know it?

A.
Because we had extended our agreement with Ashland over
the period I was supervisor and we would meet with Ashland and
discuss that.

39

Q.

You would learn it in a meeting?

A.
Well, me and Ashland would — Ashland, whoever it may
be at that time, whoever was the guy, would sit down and discuss the
extension of the contract and then in that extension I would — we would
discuss what was required of them. And that’s how I knew.
....
Q.
So every tower covered under the contract with Ashland
was supposed to be visited once a month?
A.

That was the goal. Now —

Q.

Well, that’s what the contract says; isn’t it?

A.

Yes. That’s what — now, I don’t know what that contract
— I have never seen that contract.

Q.
I’ll show you — and, again, it was provided and attached
as an exhibit —
A.

I understand.

Q.

— to a filing in this matter, so.

A.

Sure.

....
Q.
It appears to me the plain language of reading that would
say that they were — that Ashland was supposed to provide once a week
routine plant service visit[s]; correct?
A.

That’s what it reads.

Q.

For the boilers, and 25 percent of the cooling towers —
40

A.

Uh-huh. (Affirmative.)

Q.

— right? Is that a yes?

A.

I’ll agree that that’s what it says, yes.

Q.
Okay. Y’all are saying — y’all had an agreement to do
something different than what the contract says?
A.
This contract is not necessarily, in my opinion, the contract
that they were working on with me.
Q.
So you had an agreement with them that was different than
what’s in writing there?
A.
Possibly. The contract that they was working with with me
may not be or may be this. I did not see either one, but I sat in when
they sold and resold and repitched the contract with them, and other
companies as well who bid it, but I did not get to see the new accepted
contract. You hear me? Because this is the original contract in 2003
and in 2003 I was not the supervisor.115
In response, Chugach states that Hester did not testify during his deposition
that he had never seen a contract, but rather that “he had never seen the contract
marked as Plaintiff’s Exhibit 9 to his deposition.”116 In addition, Chugach asserts that
“[t]he document about which Mr. Hester was questioned during his deposition

115

Doc. no. 87-8 (Deposition of Chris Hester), at 34-40 (alterations supplied); see also id.
at 48 (“I’ll repeat, I have never seen this contract . . . .”); id. at 128 (“because I’ve already told you
I have not seen the contract that was agreed upon, but I sat in the meeting where they sold their pitch,
I sat in the meeting where they told what they was [sic] going to do, but I have not seen a piece of
paper — the contract, . . .”).
116

See doc. no. 98 (Chugach’s Opposition to Ashland’s Motion to Strike Evidence Submitted
in Support of Motion for Summary Judgment), at 4.

41

(Exhibit 9) and the contract attached as Exhibit A to his Declaration are not the same
document.”117
Upon consideration, the court finds that there are inconsistencies between
Hester’s deposition testimony that “I sat in the meeting where they sold their pitch,
I sat in the meeting where they told what they was [sic] going to do, but I have not
seen a piece of paper — the contract,” and the subsequent statements in his
declaration that the appended contracts were true and correct copies of the agreement
between Chugach and Ashland.118 Because Hester testified that he never saw the
contracts entered into between Chugach and Ashland, he cannot now attempt to
authenticate those same contracts. Therefore, Ashland’s motion to strike will be
granted.119
II. MOTIONS FOR SUMMARY JUDGMENT
The Federal Rules of Civil Procedure provide that a court “shall grant summary
judgment if the movant shows that there is no genuine dispute as to any material fact
and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). In

117

Id. (alteration supplied).

118

Compare doc. no. 87-8 (Deposition of Chris Hester), at 128, with doc. no. 87-13
(Declaration of Chris Hester), at ECF 3.
119

Because the court finds that Hester’s declaration is inconsistent with his earlier deposition
testimony, it will not rule on Ashland’s arguments that Hester lacks personal knowledge to
authenticate the exhibits to his declaration and that the declaration is a belated attempt to submit
evidence in opposition to Ashland’s motion for summary judgment on Chugach’s crossclaims.

42

other words, summary judgment is proper “after adequate time for discovery and
upon motion, against a party who fails to make a showing sufficient to establish the
existence of an element essential to that party’s case, and on which that party will
bear the burden of proof at trial.” Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986).
“In making this determination, the court must review all evidence and make all
reasonable inferences in favor of the party opposing summary judgment.” Chapman
v. AI Transport, 229 F.3d 918, 921 (11th Cir. 2000) (en banc) (quoting Haves v. City
of Miami, 52 F.3d 918, 921 (11th Cir. 1995)). “[A]n inference is not reasonable if it
is only a guess or a possibility, for such an inference is not based on the evidence, but
is pure conjecture and speculation.” Daniels v. Twin Oaks Nursing Home, 692 F.2d
1321, 1324 (11th Cir. 1983). Additionally,
[t]he mere existence of some factual dispute will not defeat summary
judgment unless that factual dispute is material to an issue affecting the
outcome of the case. The relevant rules of substantive law dictate the
materiality of a disputed fact. A genuine issue of material fact does not
exist unless there is sufficient evidence favoring the nonmoving party
for a reasonable jury to return a verdict in its favor.
Chapman, 229 F.3d at 1023 (quoting Haves, 52 F.3d at 921) (alteration supplied);
see also Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 251-52 (1986) (asking
“whether the evidence presents a sufficient disagreement to require submission to a
jury or whether it is so one-sided that one party must prevail as a matter of law”).

43

III. SUMMARY OF FACTS
A.

The Parties
Plaintiff asserts claims against defendants, both individually and in her

representative capacity as the administrator of the estate of her deceased husband,
Mark A. Mueller.120 Throughout the relevant time period, Mr. Mueller was an
employee of the Camber Corporation, a contractor performing work for the United
States Army on Redstone Arsenal.121 His workplace was located in Building 5681.122
Chugach Management Services, Inc. (“Chugach Management”), a subsidiary
of the Chugach Alaska Corporation, held the “Installation Support Services
Contract,” an agreement that required the maintenance of heating, ventilation, and air
conditioning (“HVAC”) systems serving buildings located on Redstone Arsenal.123
Chugach Management entered into a water treatment subcontract with Ashland for
the servicing of HVAC cooling towers in 2003.124 Defendant Chugach Federal

120
121
122

See doc. no. 18 (Second Amended Complaint).
Id. ¶ 4.
Id.

123

See doc. no. 87-7 (Deposition of David Dyer), at 28-29; see also doc. no. 87-11
(Deposition of Rob Spencer), at 10; doc. no. 87-12 (Deposition of Stacy Willis), at 74; doc. no. 87-8
(Deposition of Chris Hester), at 28-34; doc. no. 87-5 (Affidavit of Chris Hester) ¶ 2; doc. no. 87-9
(ISS Contract), at ECF 2.
124

See doc. no. 87-7 (Deposition of David Dyer), at 28-29; see also doc. no. 87-11
(Deposition of Rob Spencer), at 10; doc. no. 87-12 (Deposition of Stacy Willis), at 74; doc. no. 87-8
(Deposition of Chris Hester), at 28-34; doc. no. 87-5 (Affidavit of Chris Hester) ¶ 2; doc. no. 87-9
(ISS Contract), at ECF 2.

44

Solutions, Inc., another subsidiary of the Chugach Alaska Corporation, obtained the
Installation Support Services Contract in 2011.125 Ashland’s subcontract for water
treatment services was periodically renewed from 2003 until March 31, 2012.126
B.

Maintenance of the HVAC Cooling Tower for Building 5681
1.

Relevant individuals

Chris Hester was the HVAC Mechanical Supervisor for Chugach.127 As such,
he supervised the maintenance of HVAC systems and cooling towers serving
buildings on Redstone Arsenal, including Building 5681, and managed a team of
employees that included HVAC technicians, control technicians, electricians,
plumbers, and filter changers.128 When Hester was hired in 2003, he had over fifteen
years of experience working with industrial HVAC systems, and had served as a
master mechanic for ten years.129 In addition, he had obtained a certificate from the
National Air Refrigeration Services (“NARS”) School, and was licensed by the State
of Alabama as a HVAC mechanical contractor and a refrigeration contractor.
David Dyer was an on-site HVAC mechanic for Chugach, and was responsible
125

See doc. no. 87-7 (Deposition of David Dyer), at 14-15; see also doc. no. 87-5 (Affidavit
of Chris Hester) ¶ 7.
126

See doc. no. 87-14 (Deposition of Doug Entz), at 123-24, 132-33, 136; see also doc. no.
87-8 (Deposition of Chris Hester), at 24, 36.
127

See doc. no. 87-8 (Deposition of Chris Hester), at 23-24.

128

Id.

129

See doc. no. 87-5 (Affidavit of Chris Hester) ¶ 3.

45

for the maintenance of cooling towers, including the tower that serviced Building
5681.130 He obtained a certificate in air conditioning and refrigeration from the City
Technical School in Huntsville, Alabama, and had over ten years of experience with
industrial HVAC systems at the time that he was hired.131 As an HVAC mechanic,
Dyer was responsible for ensuring that the chemical reservoirs for the biocide injector
system were full, and that the system was operating properly.132 Even so, Dyer does
not have experience in either water chemistry or Legionella detection and prevention,
and he was not trained to adjust the chemical feed for the cooling tower.133
The number of Ashland employees who inspected the Building 5681 cooling
tower in 2011 is in dispute. Ashland asserts that there were three service technicians:
Leonard Schwartz; Stacy Willis; and Rob Spencer.134

Leonard Schwartz was

employed by Ashland as an “Application Engineer I” from July 1, 2008 until July 1,
2011.135 He possesses a Bachelor of Science degree in chemical engineering, and had
seven years of experience in water treatment when he was hired in 2008.136 Stacy
Willis served as Ashland’s account manager for northern Alabama from July 11,
130

See doc. no. 87-7 (Deposition of David Dyer), at 30, 74, 79, 125.

131

Id. at 18-19, 24-25; see also doc. no. 87-10 (Affidavit of David Dyer) ¶ 3.

132

See doc. no. 87-7 (Deposition of David Dyer), at 26-27.

133

Id. at 50, 52, 68, 102.

134

See doc. no. 65 (Ashland’s Brief in Support of its Motion for Summary Judgment), at 3-4.

135

See doc. no. 66-4 (Exhibit “D”: Affidavit of Leonard Schwartz), at 3.

136

Id.

46

2011 until October of 2012.137 When he was hired, he had several years of experience
in water treatment, and had been trained while working for Ashland’s competitor,
Nalco, a subsidiary of Ecolab, Inc.138 Rob Spencer was hired by Ashland as a service
technician on July 11, 2011.139 Prior to his employment with Ashland, Spencer had
received basic water treatment training in the United States Navy.140 In addition, he
acquired additional skills from on-the-job-training by Stacy Willis, and through
Ashland’s online training program.141
Chugach contends that, following the end of Leonard Schwartz’s employment
on July 1, 2011, there was frequent turnover in the Ashland service technicians sent
to Building 5681.142 Chugach asserts that Ashland dispatched a total of eleven
different technicians after July 1, 2011.143
2.

Services provided by Ashland

Ashland was responsible for providing the chemicals used to treat cooling

137

See doc. no. 87-12 (Deposition of Stacy Willis), at 10-11.

138

Id. at 13-14. “Nalco” was formed in 1928 as the National Aluminate Corporation;
however, the company’s name was later changed to “Nalco” as a result of multiple mergers and
acquisitions. See http://www.nalco.com/aboutnalco/history.htm (last visited June 13, 2014).
139

See doc. no. 87-11 (Deposition of Rob Spencer), at 11-12.

140

Id. at 23.

141

Id. at 11-12, 24.

142

See doc. no. 87-7 (Deposition of David Dyer), at 64-65; see also doc. no. 87-8 (Deposition
of Chris Hester), at 50.
143

See doc. no. 87-8 (Deposition of Chris Hester), at 50.

47

tower waters, and for periodic inspection of the towers.144 Chemical treatment of
cooling tower water is necessary to prevent scale corrosion and microbiological
growth, including the Legionella bacteria.145 Even so, Chugach did not retain
Ashland to test or sample the cooling tower waters for the presence of Legionella.146
Ashland provided two chemicals for the treatment of cooling tower waters:
“Drew 2215,” a phosphate used to reduce the level of rust, corrosion, and inorganic
material in the waters;147 and “Biosperse 3001,” which essentially is a bleach used to
reduce the concentration of algae, bacteria, and fungi in the waters.148
Ashland’s contract required weekly visits to Redstone Arsenal, and the
inspection of each cooling tower at least once each month.149 Typically, when an
Ashland service employee arrived at Chugach’s maintenance building on Redstone
Arsenal each week, Dyer would drive the Ashland representative to the cooling
towers that were to be inspected that week.150 For that reason, the parties disagree
144

See doc. no. 66-2 (Exhibit “B”: Solicitation Packet for Boiler and Cooling Water
Treatment).
145

See doc. no. 87-14 (Deposition of Doug Entz), at 114.

146

See doc. no. 65 (Ashland’s Brief in Support of its Motion for Summary Judgment), at 3.

147

See doc. no. 66-6 (Exhibit “F”: Drew 2215 Product Data Sheet).

148

See doc. no. 66-7 (Exhibit “G”: Biosperse 3001 Product Data Sheet).

149

See doc. no. 87-12 (Deposition of Stacy Willis), at 21; see also doc. no. 87-7 (Deposition
of David Dyer), at 35-36, 107-08; doc. no. 87-8 (Deposition of Chris Hester), at 35-37, 39, 47-48,
50-51, 54, 57; doc. no. 87-14 (Deposition of Doug Entz), at 125-26.
150

See doc. no. 66-4 (Exhibit “D”: Affidavit of Leonard Schwartz), at 3; see also doc. no. 8711 (Deposition of Rob Spencer), at 12, 21; doc. no. 87-12 (Deposition of Stacy Willis), at 21, 25-26,
28-29, 73, 76, 81; doc. no. 87-14 (Deposition of Doug Entz), at 17-20, 25-27, 74-76, 84, 96-97, 111-

48

about the issue of which entity bore the responsibility for ensuring that each cooling
tower was inspected at least once each month. Ashland contends that Chugach did
not consult with it to determine which cooling towers were to be inspected during an
Ashland employee’s weekly visit.151

Further, Ashland contends that its

representatives did not have the authority or the ability to inspect any cooling towers,
other than the ones to which they were driven by Dyer.152
On the other hand, Chugach asserts that Ashland was required to maintain
records of which cooling towers had been inspected each week, in order to ensure that
all towers were inspected at least once during each calendar month.153 Further,
Ashland’s service representatives were issued a security badge, which Chugach
contends allowed Ashland employees access to Redstone Arsenal from Monday
through Friday, 7:00 a.m. to 5:00 p.m., and allowed them to drive to different
locations on the base without the assistance or escort of Dyer.154 Therefore, Chugach
asserts that Ashland employees could have driven to the parking lot for Building

12, 117, 124-25.
151

See doc. no. 66-4 (Exhibit “D”: Affidavit of Leonard Schwartz), at 3-4; see also doc. no.
87-11(Deposition of Rob Spencer), at 13, 16, 19, 20-21, 63-64, 70; doc. no. 87-12 (Deposition of
Stacy Willis), at 21, 28-29, 81.
152

See doc. no. 66-4 (Exhibit “D”: Affidavit of Leonard Schwartz), at 3-4; see also doc. no.
87-11(Deposition of Rob Spencer), at 13, 16, 19, 20-21, 63-64, 70; doc. no. 87-12 (Deposition of
Stacy Willis), at 21, 28-29, 81.
153

See doc. no. 87-8 (Deposition of Chris Hester), at 53-54.

154

Id. at 63; see also doc. no. 87-7 (Deposition of David Dyer), at 141-42.

49

5681, and inspected the cooling tower at that location without the presence (or escort)
of a Chugach employee.155
Ashland was contractually required to test free chlorine levels, pH,
conductivity, acidity, and the inventory levels of Drew 2215 and Biosperse 3001
during each regular service inspection.156 The contract also provided that Ashland
was to “run in-plant microbiological evaluations.”157 Doug Entz, an Ashland
corporate representative, testified during his deposition that an “in-plant
microbiological evaluation” is a dip slide which tests for bacteria, fungi, and mold.158
Even so, Ashland asserts that it was only required to conduct a dip slide analysis
when the technician was concerned that a particular cooling tower had an elevated
level of bacteria.159
Following the completion of each service inspection, Ashland’s representatives
were required to prepare a spreadsheet report for each cooling tower inspected, and

155

See doc. no. 87-8 (Deposition of Chris Hester), at 61-63; see also doc. no. 87-7
(Deposition of David Dyer), at 142.
156

See doc. no. 87-14 (Deposition of Doug Entz), at 126-27; see also doc. no. 87-11
(Deposition of Rob Spencer), at 57-59.
157

See doc. no. 66-2 (Exhibit “B”: Solicitation Packet for Boiler and Cooling Water
Treatment), at 8.
158

See doc. no. 87-14 (Deposition of Doug Entz), at 126-27.

159

See doc. no. 87-11 (Deposition of Rob Spencer), at 67-68; see also doc. no. 87-12
(Deposition of Stacy Willis), at 31, 73-74.

50

to provide the report to Chugach.160 Those reports recorded the following information
for inspections of the Building 5681 cooling tower during the relevant period:161
pH

Free Chlorine162

Conductivity163

February 2

8.31

2.2

821

February 24

8.28

2.18

808

March 24

8.39

0.00

888

July 14

8.9

0.08

894

2011 Date

160

See doc. no. 66-4 (Exhibit “D”: Affidavit of Leonard Schwartz), at 4; see also doc. no.
87-11 (Deposition of Rob Spencer), at 26-27, 77, 80-81; doc. no. 87-12 (Deposition of Stacy Willis),
at 25-26, 79.
161

See doc. no. 66-9 (Exhibit “I”: Ashland’s Weekly Service Reports), at 1-2, 6, 11, 15-16.

162

According to the OSHA Technical Manual:

b. Traditional oxiding agents such as chlorine and bromine have been proven
effective in controlling Legionella in cooling towers. Continuous chlorination at low
free residual levels can be effective in controlling Legionella growth. It is important,
however, that the proper oxidant level be established and maintained because free
residual chlorine above 1 ppm may be corrosive to metals in the system and may
damage wood used in cooling towers; free residual levels below 1 ppm may not
adequately control Legionella growth . . . . Frequent monitoring and control of pH
is essential for maintaining adequate levels of free residual chlorine. Above a pH of
8.0, chlorine effectiveness is greatly reduced . . . .
Doc. no. 67-5 (Exhibit “S”: OSHA Technical Manual (OTM), Section III: Chapter 7, Legionnaires’
Disease), at ECF 8 (ellipses supplied). Even so, it appears that the contractual parameters for the pH
level in the cooling towers on Redstone Arsenal were between 7.8 and 8.9, as evidenced by the
Ashland service inspection reports. See doc. no. 66-9 (Exhibit “I”: Ashland’s Weekly Service
Inspection Reports).
163

Conductivity measures the ability of water to pass an electrical current. It is affected by
the presence of inorganic dissolved solids. See United States Environmental Protection Agency, 5.9
Conductivity, http://water.epa.gov/type/rsl/monitoring/vms59.cfm (last visited May 9, 2014).
According to the contract between Ashland and Chugach, the conductivity of the circulating water
should range between 650-880 micro-ohms (“MMHO”). See doc. no. 66-2 (Exhibit “B”: Solicitation
Packet for Boiler and Cooling Tower Water Treatment), at 12.

51

July 22

8.43

HIGH

893

As evidenced by the foregoing table, there is a 110-day gap — from March 24
to July 14, 2011 — in Ashland’s service reports for the cooling tower located at
Building 5681.164 The issue of whether Ashland, in fact, performed any service
inspections at that location during the 110-day gap is disputed. Chugach contends
that service inspections were performed, but that Ashland failed to submit its weekly
service reports as a result of its frequent employee turnover.165 As proof that
inspections were, in fact, conducted during that period, even though not recorded in
Ashland’s reports, Chugach relies on Dyer’s handwritten notes showing that
adjustments were made to the chemical feed for that tower.166 Dyer testified during
his deposition that he relied upon Ashland’s representatives for recommendations
regarding when the chemical feed needed to be adjusted and, therefore, he asserted
that adjustments to the chemical feed were generally only made on occasions when
an Ashland representative was present.167 Because Dyer noted adjustments to the
chemical feed for the Building 5681 cooling tower seven times during the alleged
110-day gap in service, Chugach argues that Ashland did, in fact, perform service
164

See doc. no. 66-9 (Exhibit “I”: Ashland’s Weekly Service Reports).

165

See doc. no. 87-8 (Deposition of Chris Hester), at 64-65, 71-72, 74-77.

166

Id. at 54-55; see also doc. no. 87-7 (Deposition of David Dyer), at 53-54, 65-66, 121-22,

167

See doc. no. 87-7 (Deposition of David Dyer), at 50, 53-54, 65-66, 106, 112, 121-22, 138.

138.

52

inspections.168 Even so, Dyer also testified that he periodically adjusted the chemical
feed for the cooling tower on his own volition, without the advice of Ashland,
whenever he detected the growth of algae.169
The cooling tower for Building 5681 was inspected twice in July of 2011: first
on July 14th; and again on July 22nd.170 Following the inspection on July 14, 2011,
Willis reported that “all parameters look good.”171 Even though the free chlorine
level was low on July 14, 2011, Willis testified that he knew the sample was “taken
in between cycles and another slug dose would come right behind it and shoot this
number up to 2.2.”172 When the cooling tower was inspected eight days later, the free
chlorine level was high at 2.2 ppm.173
After Mr. Mueller was diagnosed with Legionnaires’ Disease in early August
of 2011, Dyer checked the chemical levels in the cooling tower and reported that the
tower was “hot,” a term meaning that the chemical levels exceeded the targets.174
Chugach asserts that Ashland failed to fulfill its contractual obligations as a

168

Id. at 46, 49-50, 131-33.

169

Id. at 97-98.

170

See doc. no. 87-12 (Deposition of Stacy Willis), at 17, 77-78.

171

Id. at 43, see also doc. no. 66-13 (Exhibit “M”: Ashland’s July 14, 2011 Service Reports),
at ECF 5-6.
172

Doc. no. 87-12 (Deposition of Stacy Willis), at 44.

173

Id. at 45-46, 61.

174

See doc. no. 87-10 (Affidavit of David Dyer) ¶¶ 15-18.

53

result of the frequent turnover of inspection technicians in 2011. Chugach argues
that, as a result of the frequent turnover, Ashland regularly sent new employees, who
were inexperienced, and who had to learn the process of properly servicing cooling
towers.175

Chugach also contends that the frequent turnover prevented its

representatives from developing a working relationship with the Ashland service
technicians.176 In addition, Chugach states that, on many occasions, Ashland sent new
representatives without any prior notice, which resulted in security badge issues and,
therefore, service problems.177 Additional problems allegedly were created when an
Ashland service technician arrived to perform chemical treatments on the same day
that another Ashland representative had delivered products.178 Chugach contends
that, as a result of all of these alleged issues, the Ashland service technicians “could
not accomplish their job and complete necessary tasks required under the contract in
an efficient manner.”179 Chris Hester testified in his deposition that these issues were
discussed during numerous meetings with Ashland.180
C.

Legionnaires’ Disease

175

See doc. no. 87-8 (Deposition of Chris Hester), at 59-60.

176

Id. at 49-50.

177

Id. at 60-61.

178

Id. at 43.

179

Id. at 43, 74.

180

Id. at 43-44.

54

The “Legionella Cluster Investigation” conducted by Southern Regional
Medical Command provided the following information concerning Legionnaires’
Disease:
3.

BIOLOGY OF LEGIONELLOSIS
a.

Etiological Agent.

....
(2) Legionellae thrive in warm, aquatic
environments and are relatively resistant to the effects of
chlorine and heat. Legionellae are generally spread
through the air by aerosolized water which is then inhaled
or microaspirated. Contaminated aerosols come from
devices such as cooling towers, showers, and faucets . . . .
It is not transmitted from person to person.
b.

Clinical Features.

(1) Legionnaires’ disease (Legionellosis) is a
bacterial infection that was first identified following a 1976
outbreak of pneumonia at an American Legion Convention
in Philadelphia. Persons with Legionnaires” [sic] disease
may present early in the illness with nonspecific symptoms,
so it can be difficult to diagnose. Signs of the disease can
include: a high fever, chills, and a cough. Some people
also suffer from muscle aches and headaches.
(2) Twenty to forty percent (20-40%) of cases
exhibit gastrointestinal symptoms.
The clinical
presentation of Legionnaires” [sic] disease is not generally
clinically distinguishable from other causes of communityassociated pneumonia. This can lead to cases of
Legionellosis being misdiagnosed. The incubation period
55

for Legionnaires’ disease is 2-10 days with an average of
5-6 days. Chest X-rays are needed to diagnose the
pneumonia caused by the bacteria. However, it is not
possible to diagnose Legionellosis based on radiographic
evidence only. Chest radiographs of patients with
Legionellosis are clinically indistinguishable from those of
patients with pneumococcal pneumonia or mycoplasma
pneumonia, which are common causes of communityassociated pneumonia. Because of this, laboratory testing
is required to identify cases of Legionellosis. These tests
can include cultures or PCR tests on sputum, blood, or lung
tissues but the most common diagnostic test is the urine
antigen test. A milder infection caused by the same type of
Legionella bacteria is called Pontiac Fever. Symptoms are
similar to Legionnaires’ disease with fever, headache, and
muscle aches, however, there is no pneumonia. The
incubation period for Pontiac Fever is 5-66 hours, most
often 24-48 hours. Symptoms of Pontiac Fever go away on
their own in two to five days without treatment and without
causing further problems . . . .
c.

Epidemiology.

(1) People most at risk of getting sick from infection
with Legionella bacteria are older people (usually 65 years
of age or older), as well as people who are smokers, or
those who have a chronic lung disease (like emphysema).
(2) People who have weak immune systems from
diseases like cancer, diabetes, or kidney failure are also
more likely to get sick when exposed to Legionella
bacteria. People who take drugs to suppress (weaken) the
immune system (like after a transplant operation or
chemotherapy) are also at higher risk.181
181

Doc. no. 67-1 (Exhibit “O”: Legionella Cluster Investigation), at ECF 4-5 (emphasis in

original).

56

D.

Mr. Mueller’s Alleged Exposure to Legionella
The HVAC system for Building 5681 included a cooling tower located at the

rear of the building.182 There was a designated smoking area directly behind the
building, and plaintiff testified that her husband regularly spent time in that area.183
Defendants dispute that testimony, because plaintiff has not identified any other
witnesses who can attest to Mr. Mueller’s use of the smoking area.
David Dyer described the outside smoking area as “a handicapped concrete
ramp that comes up and then goes in the back door,” approximately forty feet from
the cooling tower.184 The expert report submitted by James Davis described the
smoking area as located approximately 63 feet north of the cooling tower, and
shielded by a wall on the south side and a partial roof over the rear entrance door.185
Plaintiff asserts that Mr. Mueller was exposed to Legionella when water vapor
from the cooling tower drifted to the designated smoking area and was inhaled by her
husband.186 It should be noted, however, that the cooling tower was equipped with
drift eliminators that reduced the amount of water vapor released, and any airborne
182

See doc. no. 87-1 (Deposition of Linda Mueller), at 54; see also doc. no. 87-2 (Deposition
of Scott Bentley), at 65, 164-65.
183

See doc. no. 87-1 (Deposition of Linda Mueller), at 50-51.

184

See doc. no. 87-7 (Deposition of David Dyer), at 149-50.

185

See doc. no. 87-6 (Deposition of Sam Davis, Jr.), at 17, 52-53.

186

See doc. no. 74-1 (Opinion of James Barbaree, Ph.D.), at ECF 3-4; see also doc. no. 74-2
(Deposition of James Barbaree, Ph.D.), at 58-59.

57

drift.187 Defendants also assert that the wall and partial roof shielding the smoking
area obstructed the movement of water vapor.188
It should be noted that plaintiff does not appear to contend that her husband
contracted Legionnaires’ Disease while inside Building 5681. Indeed, the following
facts regarding a person’s potential exposure to moisture from the cooling tower
while inside the building are not in dispute. Water from the cooling tower circulated
through the chillers, but it was not circulated to the air handlers inside the building.189
Further, the room in which Mr. Mueller worked (151) was serviced by air handler unit
number four, which was located on the roof of Building 5681, and not in close
proximity to the cooling tower.190 Consequently, it is highly unlikely that moisture
from the cooling tower circulated into Room 151.191 Even if water vapor somehow
entered the air handler circulating air to Room 151, it was removed by the filters and
coils that conditioned the air.192 In addition, the HVAC system for Building 5681 was
programmed to maintain a positive building pressure, compared to the atmospheric
pressure outside the building: a fact that also worked to prevent unconditioned
187

See doc. no. 87-6 (Deposition of Sam Davis, Jr.), at 36, 51-52.

188

Id. at 52-53.

189

See doc. no. 87-2 (Deposition of Scott Bentley), at 61-63; see also doc. no. 87-5 (Affidavit
of Chris Hester) ¶¶ 24-26.
190

See doc. no. 87-5 (Affidavit of Chris Hester) ¶¶ 24-26.

191

Id. ¶ 26.

192

See doc. no. 87-6 (Deposition of Sam Davis, Jr.) at 49-50.

58

outside air from entering the building.193
E.

Mr. Mueller’s Onset of Symptoms
Mr. Mueller became ill in late July of 2011, and exhibited symptoms of

lethargy, lack of appetite, and extreme changes in body temperature.194 His health
continued to worsen over the course of a week until July 29, 2011, when he first
visited Dr. Jeffrey Garber, his family physician.195 Dr. Garber recommended that Mr.
Mueller go directly to Huntsville Hospital, and arranged for him to be admitted.196
Following admission, Mr. Mueller was found to be suffering from an undiagnosed
problem with his blood count.197
During his hospital stay, a urine antigen test was ordered and analyzed by the
Mayo Clinic in Jacksonville, Florida.198 The results showed that Mr. Mueller tested
positive for a Legionella bacterial infection, and those results were reported to
Huntsville Hospital on August 3, 2011.199 One day later, plaintiff was told by the
head nurse overseeing her husband’s treatment that he had been diagnosed with

193

See doc. no. 87-3 (Declaration of James S. Davis, Jr.), at ECF 10.

194

See doc. no. 87-1 (Deposition of Linda Mueller), at 59-61.

195

Id. at 60-61.

196

Id. at 59-63.

197

Id. at 73.

198

See doc. no. 73-1 (Exhibit “A”: Huntsville Hospital Medical Records), at ECF 2-3.

199

Id.

59

Legionnaire’s Disease.200 Mr. Mueller remained in the hospital until his death on
August 8, 2011.201
Mr. Mueller’s supplemental death certificate listed the cause of death as
pneumonia with respiratory failure due to Legionella.202 It is important to note,
however, that a supplemental medical certification containing that information was
prepared by Dr. Garber at plaintiff’s request.203 The original certificate of death made
no reference to Legionella.204
After Mr. Mueller’s death, Dr. Gualtieri, one of his treating physicians, ordered
an autopsy for the purpose of identifying the cause of Mr. Mueller’s blood count
problem.205 The autopsy was limited to Mr. Mueller’s spleen, and revealed that the
blood count problem was “pancytopenia”: a condition in which there is a marked
reduction in the number of red and white blood cells and platelets.206 See Dorland’s
Illustrated Medical Dictionary 1356 (30th ed. 2003).
F.

The Legionella Cluster Investigation Report
Major General Ted Wong, the Commanding General of the United States
200

See doc. no. 87-1 (Deposition of Linda Mueller), at 68.

201

Id. at 59, 67, 72, 93-94.

202

See doc. no. 73-5 (Exhibit “E”: Death Certificate), at ECF 2.

203

See doc. no. 87-1 (Deposition of Linda Mueller), at 93-96.

204

See doc. no. 73-5 (Exhibit “E”: Death Certificate), at ECF 3.

205

See doc. no. 87-1 (Deposition of Linda Mueller), at 72-73.

206

Id. at 74-75; see also doc. no. 87-17 (Autopsy Report).

60

Army’s Southern Regional Medical Command, issued Operation Order 11-62 on
August 18, 2011, which directed Scott Bentley and Dr. Shannon Ellis to conduct an
investigation regarding potential sources of Legionella contaimination in Building
5681, and to prepare a report detailing their findings and conclusions.207 Bentley and
Dr. Ellis were on-site at Redstone Arsenal from August 21–24, 2011 in connection
with that investigation.208
Scott Bentley served as the Industrial Hygiene Program Manager for SRMC,
and he had over thirty years of experience as an industrial hygienist, including
experience conducting investigations involving Legionella.209 He was responsible for
overseeing the environmental assessment aspects of the investigation.210
Dr. Shannon Ellis, a Lieutenant Colonel in the United States Army, served as
the Chief of Preventive Medicine at Winn Army Hospital.211 In that capacity, Dr.
Ellis was responsible for public health and preventive medicine issues at United
States Army posts, and was regularly involved in investigating outbreaks of

207

See doc. no. 87-2 (Deposition of Scott Bentley), at 22-23, 26-27, 91-92, 94-95; see also
doc. no. 87-4 (Deposition of Shannon Ellis, O.D.), at 11, 14-15, 70.
208

See doc. no. 87-2 (Deposition of Scott Bentley), at 28; see also doc. no. 87-4 (Deposition
of Shannon Ellis, O.D.), at 49.
209

See doc. no. 87-2 (Deposition of Scott Bentley), at 8-9, 16.

210

Id. at 37-38.

211

See doc. no. 87-4 (Deposition of Shannon Ellis, O.D.), at 7-8.

61

communicable diseases on military bases.212 Dr. Ellis has a degree in laboratory
medicine, and was familiar with microbiology and the growth of Legionella
bacteria.213 He was responsible for the medical aspects of the investigation.214
1.

Potential sources of Legionella at Building 5681

For purposes of their investigation, Bentley and Dr. Ellis assumed that Mr.
Mueller had died of Legionnaires’ Disease.215 Therefore, they only sought to
determine whether the environment of the building in which he had worked was
contaminated.216
Bentley and Dr. Ellis began their investigation on August 21, 2011, by
participating in a comprehensive walk-through of Building 5681, for the purpose of
assessing the building and identifying potential sources of Legionella
contamination.217 During their walk-through, Bentley and Dr. Ellis identified the
cooling tower and the HVAC system as potential sources of the Legionella
contamination.218
212

Id. at 8, 12-13.

213

Id. at 19.

214

Id. at 46.

215

Id. at 150; see also doc. no. 87-2 (Deposition of Scott Bentley), at 98.

216

See doc. no. 87-4 (Deposition of Shannon Ellis, O.D.), at 150; see also doc. no. 87-2
(Deposition of Scott Bentley), at 98.
217

See doc. no. 87-2 (Deposition of Scott Bentley), at 28-29; see also doc. no. 87-4
(Deposition of Shannon Ellis, O.D.), at 17.
218

See doc. no. 87-2 (Deposition of Scott Bentley), at 31.

62

2.

Additional, potential cases of Legionella-induced illnesses

A “line listing” of all employees working in Building 5681 who exhibited
symptoms that could be linked to Legionella was created.219 Dr. Ellis then supervised
medical evaluations of those employees.220 No confirmed cases of Legionnaires’
Disease or “Pontiac Fever”221 were identified, other than that of Mr. Mueller.222
Therefore, Dr. Ellis concluded that no other person who worked in Building 5681 had
219

A line listing is a protocol methodology for organizing information during an
epidemiological study. Id. at 34-35; see also doc. no. 87-4 (Deposition of Shannon Ellis, O.D.), at
35-38. The Legionella Cluster Investigation provides the following summary of the line listing:
The line listing of employees was a comprehensive attempt to gather all cases,
no matter how improbable and unsubstantiated the cases were, in relationship to
Legionella. A total of thirteen (13) individuals were identified, however, only two
(2) besides the index case, are moderately suspect. The other individuals reported
having sinus infections or upper respiratory infections and were not suspect cases.
Many individuals with symptoms did not get tested, since the individual or his/her
physician did not feel it was necessary to be tested . . . .
Doc. no. 67-1 (Exhibit “O”: Legionella Cluster Investigation Report), at ECF 7.
220

See doc. no. 87-4 (Deposition of Shannon Ellis, O.D.), at 38-39.

221

“Pontiac Fever” is defined as “an influenzalike disease caused by infection with a strain
of Legionella pneumophila; characteristics include fever, chills, cough, muscle pain, headache, chest
pain, and pleurisy.” Dorland’s Illustrated Medical Dictionary 687 (30th ed. 2003).
222

See doc. no. 87-4 (Deposition of Shannon Ellis, O.D.), at 38-39. The Legionella Cluster
Investigation provides the following information concerning the case interviews:
Medical interviews were conducted on-site with spouse of the deceased
employee and other employees who were tested and/or had symptoms. Two (2)
employees had probable pneumonia and others had symptoms which might have
suggested Legionella infection. A total of eight (8) urine antigen (Ag) tests were
documented (either by written report, electronic medical records, or self-reported by
employees (see line listing for details)), with all tests being negative.
Doc. no. 67-1 (Exhibit “O”: Legionella Cluster Investigation Report), at ECF 7.

63

contracted a Legionella infection.223
Plaintiff denies that Dr. Ellis’s conclusion was accurate. She argues that,
because the investigation did not begin until August 21, 2011, the individuals
evaluated by Dr. Ellis had recovered from their illnesses, and that any symptoms
indicative of Legionnaires’ Disease would have been greatly reduced.224
Further, plaintiff argues that a co-worker of Mr. Mueller’s, Allison Rowland,
was diagnosed with Pontiac Fever.225 Plaintiff’s assertion is based upon the fact that
the antibodies test ordered by Rowland’s private physician returned positive for
Legionella.226 Further, Rowland testified that she occasionally visited the outside
smoking area when she needed to use her cellular telephone, because it was difficult
to obtain a signal inside the building.227 Even so, the issue of whether Rowland was
actually diagnosed with Pontiac Fever appears to be disputed. Indeed, Rowland
testified during her deposition that her treating physician never informed her of such
a diagnosis.228 In addition, Dr. Ellis testified during his deposition that an antibodies

223

See doc. no. 87-4 (Deposition of Shannon Ellis, O.D.), at 46.

224

See doc. no. 99 (Plaintiff’s Opposition to Chugach’s Motion for Summary Judgment), at

10.
225

See doc. no. 73-3 (Exhibit “C”: Deposition of Dr. Debra Miles Williams), at 32, 33-36,
67-68; see also doc. no. 73-4 (Exhibit “D”: Deposition of Allison Rowland), at 65-66.
226

See doc. no. 87-4 (Deposition of Shannon Ellis, O.D.), at 38-39.

227

See doc. no. 73-4 (Exhibit “D”: Deposition of Allison Rowland), at 31-32.

228

Id. at 39.

64

test could be positive if you were exposed at any time during your lifetime to
Legionella; whereas, a positive urine antigen test demonstrates that a person was
recently exposed to Legionella.229
3.

Inspection of the HVAC system

Bentley and Dr. Ellis eliminated the HVAC system as a possible source for the
Legionella contamination. There were several reasons for doing so. They noted that,
even though the HVAC system serving Building 5681 was approximately forty years
old, it appeared to be well-maintained.230 They also observed that the air filters were
correctly installed, and changed quarterly.231 Further, they found “no evidence [of]
loose debris/dirt/dust falling from . . . ductwork onto work surfaces.”232
Nevertheless, standing water was observed in the condensate-tray areas for air
handling units 4 and 8.233 Consequently, Bentley and Dr. Ellis recommended that the
air handling units be “checked for chilled-water and/or hot water leaks, and the
condensate drain should be checked for blockage.”234 Water samples from air
handling units 4 and 8 also were collected to determine the presence of Legionella

229

See doc. no. 87-4 (Deposition of Shannon Ellis, O.D.), at 38-39.

230

See doc. no. 67- 1 (Exhibit “O”: Legionella Cluster Investigation Report), at ECF 11.

231

Id.

232

Id. (alteration supplied).

233

Id.

234

Id. at ECF 11-12.

65

bacteria, and the results of the laboratory analysis of those samples were negative.235
There also was an outstanding work order to repair or replace the vibration
connection and steam leak for the Unit 8 Chiller.236 Even so, Bentley and Dr. Ellis
opined that this deficiency had little impact on the overall efficiency of the HVAC
system.237
4.

Water sampling

Prior to the arrival of Bentley and Dr. Ellis on Redstone Arsenal, Cherie Miller,
a safety officer at the Arsenal’s Fox Army Health Center, collected four water
samples from the cooling tower.238 Those samples were submitted for Legionella
testing to “Assured Bio,” a laboratory accredited by the American Industrial Hygiene
Association and the CDC.239 The results of the analysis revealed one colony-forming
unit per milliliter of Legionella pneumophila in the cooling tower water.240 As
previously noted in Part I of this opinion, both CDC and OSHA guidelines for
cooling towers place the “action level” at concentrations equal to or greater than 100
235

Id. at ECF 12.

236

See doc. no. 67-1 (Exhibit “O”: Legionella Cluster Investigation Report), at ECF 12.

237

Id.

238

See doc. no. 87-2 (Deposition of Scott Bentley), at 39-41.

239

Id. at 41-43, 45; see also doc. no. 87-4 (Deposition of Shannon Ellis, O.D.), at 126-127;
see also doc. no. 87-18 (Deposition of Merissa McGraw), at 12-13, 17, 32.
240

See doc. no. 87-2 (Deposition of Scott Bentley), at 59-60; see also doc. no. 87-4
(Deposition of Shannon Ellis, O.D.), at 20; doc. no. 67-1 (Exhibit “O”: Legionella Cluster
Investigation), at ECF 62-70.

66

colony-forming units per milliliter — grossly more than the concentration detected
in the water samples collected by Cherie Miller.241 That action level requires prompt
cleaning of the cooling tower, or biocide treatment of the system, or both actions.242
Even so, Dr. Ellis testified during deposition that the proper goal for
maintaining a cooling tower is to achieve zero colony-forming units per milliliter of
Legionella.243 He opined that a level of zero colony-forming units per milliliter is
almost impossible to achieve, however; and, for that reason, a small concentration of
Legionella is expected in most water systems.244
While plaintiff concedes that a small concentration of Legionella is to be
expected, she contends it should not also be characterized as “safe.” To support that
argument, she relies upon Dr. James Barbaree’s statement that he did not believe a
CDC epidemiologist who was experienced with Legionnaires’ Disease outbreaks
would agree with the notion that a level of Legionella as low as one colony-forming
unit per milliliter was “safe.”245
In addition, plaintiff challenges the accuracy of the analysis conducted by
241

See doc. no. 87-2 (Deposition of Scott Bentley), at 60; see also doc. no. 87-4 (Deposition
of Shannon Ellis, O.D.), at 20-22, 25-26, 88-90, 146; doc. no. 67-5 (Exhibit “S”: OSHA Technical
Manual (OTM)-Section III, Chapter 7: Legionnaires’ Disease), at ECF 20-21.
242

See doc. no. 87-4 (Deposition of Shannon Ellis, O.D.), at 26.

243

Id. at 146.

244

Id. at 89-90, 151.

245

See doc. no. 74-1 (Opinion of James Barbaree, Ph.D.), at ECF 5.

67

Assured Bio laboratory, because Merissa McGraw agreed with plaintiff’s counsel
during her deposition that the samples submitted to analysis were “deficient.”246
According to McGraw, those samples were deficient because only 90 milliliters of
water were supplied to the laboratory, whereas at least 250 milliliters allegedly are
needed for a competent evaluation.247

McGraw testified that she notified

representatives at Fox Army Health Center that a sample size of 250 milliliters was
needed, that the representatives emailed her back and asked for additional water
sample kits, that McGraw sent a second email asking how many kits should be sent,
but she never received a response.248 Therefore, additional samples were not
submitted.249 A larger sample size is preferred because it has increased sensitivity to
the amount of Legionella present.250 Even so, McGraw testified that she could only
speculate as to how much a proper sample size would have altered the results.251
Plaintiff also contends that, after the low free chlorine reading on July 14,
2011, Ashland increased the chemical exposure time by twenty minutes.252 Thus,
246

See doc. no. 75-2 (Deposition of Merissa McGraw), at 22. Merissa McGraw is employed
by Assured Bio, and is responsible for “the DNA side of the laboratory.” Id. at 6.
247

Id. at 21-22.

248

Id. at 25.

249

Id.

250

Id. at 20-21.

251

Id. at 43-44.

252

See doc. no. 99 (Plaintiff’s Opposition to Chugach’s Motion for Summary Judgment), at
10 (citing doc. no. 87-7 (Deposition of David Dyer), at 58-59).

68

plaintiff argues that the additional exposure time would have killed the vast majority
of Legionella present in the cooling tower water during the period of time in which
Mr. Mueller was exposed to Legionella.253
5.

Inspection of the cooling tower and maintenance records

During the course of their investigation, Bentley and Dr. Ellis inspected the
cooling tower for Building 5681 and its biocide injection system — a system that is
designed to prevent the growth of bacteria such as Legionella — and concluded that
the system was functioning properly.254 Bentley and Dr. Ellis also did not observe
any overflows or pooling of water around the cooling tower that could have
contributed to the growth of Legionella.255 Maintenance personnel also removed a
panel to allow inspection of the cooling tower’s interior basin, and Bentley observed
that it appeared clean and well-maintained.256
Bentley reviewed operational procedures, inspection and preventive
maintenance logs, the inspection checklist, and maintenance records, and testified that
he did not identify any outstanding, uncompleted maintenance issues, or any violation

253

Id.

254

See doc. no. 87-2 (Deposition of Scott Bentley), at 41-42, 53-54, 112; see also doc. no.
87-4 (Deposition of Shannon Ellis, O.D.), at 46-47, 74, 122.
255

See doc. no. 87-2 (Deposition of Scott Bentley), at 61; see also doc. no. 87-4 (Deposition
of Shannon Ellis, O.D.), at 20-24.
256

See doc. no. 87-2 (Deposition of Scott Bentley), at 63.

69

of protocols.257 For all of those reasons, Bentley concluded that the cooling tower had
been properly maintained, and that chemical treatments were applied at appropriate
intervals.258
Plaintiff agrees that those were Bentley’s conclusions, but contends that they
were incorrect.259
Based upon Bentley’s visual inspection of the cooling tower, his review of the
maintenance records, his discussions with operators, and his review of the results of
Assured Bio’s laboratory report, Bentley concluded that the cooling tower was not
the source of Mr. Mueller’s Legionella contamination.260 Again, plaintiff admits that
was Bentley’s conclusion, but does not agree that his conclusion was correct.261
6.

Investigatory conclusions

At the conclusion of their investigation, Bentley and Dr. Ellis prepared a report
summarizing their findings.262
Based on the results and observations made during this investigation,
there is no evidence to link the building environment to Legionella.
257

Id. at 52-53, 57.

258

Id. at 58-59, 63-64, 181-82.

259

See doc. no. 99 (Plaintiff’s Opposition to Chugach’s Motion for Summary Judgment), at

260

See doc. no. 87-2 (Deposition of Scott Bentley), at 103.

261

See doc. no. 99 (Plaintiff’s Opposition to Chugach’s Motion for Summary Judgment), at

262

See doc. no. 67-1 (Exhibit “O”: Legionella Cluster Investigation Report).

12.

12.

70

Medical evaluation concluded that there were no other confirmed cases
of Legionella infection among the group and there was no evidence to
suggest the worker who died of Legionella contracted the infection in
the workplace.263
A list of recommendations to address potential environmental hazards in
Building 5681 was included.264 Even so, no recommendations related to the cooling
tower, or the use of additional chemical treatments to aid in the elimination of
Legionella.265
G.

Dr. Barbaree’s Report
In direct contradiction to the results of the Legionella Cluster Investigation

conducted by Bentley and Dr. Ellis, Dr. James Barbaree concluded that, “to a
reasonable degree of scientific certainty . . . Mark A. Mueller (deceased) contracted
Legionnaires’ Disease while working and being around the cooling tower at building
5681, Redstone Arsenal, Alabama.”266 As described in Part I.C.2, supra, his
conclusion was based on four factors: (1) other “employees exhibiting symptoms that
could have been connected with LD [i.e., Legionnaires’ Disease]”; (2) the fact that
Legionella pneumophila and other species of Legionella were found in water samples
taken from the cooling tower; (3) records showing that the preventive maintenance
263

Id. at ECF 15.

264

Id. at ECF 15-18.

265

Id.

266

See doc. no. 74-1 (Opinion of James Barbaree, Ph.D.), at ECF 2.

71

on the cooling tower at Building 5681 was “questionable in being effective”; and (4)
the fact that Mr. Mueller “spent time around the cooling tower since he often smoked
in that area.”267
IV. DEFENDANTS’ MOTIONS FOR SUMMARY JUDGMENT
A.

Count One: Plaintiff’s Negligent Maintenance Claim
Count One of plaintiff’s second amended complaint asserts claims against both

defendants for negligent maintenance of the HVAC system of Building 5681.268
Defendants argue that this claim fails for lack of evidence.269
A negligence claim based upon Alabama law requires a plaintiff to prove four
elements: defendant owed plaintiff a duty of reasonable care; defendant breached that
duty; plaintiff suffered a loss or injury; and, defendant’s breach was the actual and
proximate cause of plaintiff’s loss or injury. See Ford Motor Co. v. Burdeshaw, 661
So. 2d 236, 238 (Ala. 1995). Defendants argue that plaintiff has failed to produce
evidence establishing that Mr. Mueller died of Legionnaires’ Disease. Defendants
also assert that plaintiff has produced no evidence that they breached any duty owed
to Mr. Mueller, or that any alleged breach was the proximate cause of his death.

267

Id. at ECF 3-4 (alterations supplied).

268

See doc. no. 18 (Second Amended Complaint), at 4.

269

See doc. no. 65 (Ashland’s Brief in Support of its Motion for Summary Judgment), at 18;
see also doc. no. 86 (Chugach’s Brief in Support of its Motion for Summary Judgment), at 17-25.

72

This court addressed defendants’ arguments concerning the admissibility of the
results of the urine antigen test conducted by the Mayo Clinic in Part I.A.2 of this
opinion, supra, and held that those results may be considered when ruling upon the
present motions. Therefore, the argument that plaintiff has not presented evidence
establishing that Legionnaires’ Disease was the cause of Mr. Mueller’s death is
rejected here, for purposes of the present motion.
With regard to defendants’ argument that plaintiff has failed to produce
evidence that they breached a duty owed to Mr. Mueller, this court finds that there are
genuine issues of material fact which preclude the entry of summary judgment. First,
Ashland had a contractual duty to inspect each of the cooling towers on Redstone
Arsenal at least once a month, and to adjust the chemical composition of the waters,
if the inspection indicated a need for doing so. Even so, Ashland has admitted that
there is a 110-day gap in its service records for the cooling tower at Building 5681.
Further, the question of whether Chugach or Ashland bore the responsibility for
ensuring that each cooling tower was inspected at least once each month is clearly a
genuine issue of material fact.
As stated in Part I.C.4.a, supra, Dr. Barbaree may not testify regarding the
prevailing industry standards for cooling tower maintenance; however, he may testify
regarding the water conditions in which Legionella thrives. Further, Dr. Barbaree’s
73

testimony regarding those water conditions is relevant in determining whether
defendants breached a duty of care owed to Mr. Mueller. Dr. Barbaree stated in his
expert report that the pH level should be maintained below 8.0 ppm — generally
between 7.2 and 7.6 ppm — so that chlorine is free to react with bacteria present in
the water.270 Even so, the pH levels recorded on six different dates during the months
of January through July of 2011 were all above 8.2 ppm.271 Dr. Barbaree also stated
that chlorine should be maintained at a level greater than 2.0 ppm.272 Even so, no free
chlorine was reported on either February 15 or March 24, 2011, and only 0.8 ppm of
chlorine was recorded on July 14, 2011.273 Based upon those records, Dr. Barbaree
concluded that the effectiveness of the preventive maintenance at Building 5681 in
reducing Legionella was questionable.274
Plaintiff has not provided expert testimony regarding the standard of care for
the maintenance of cooling towers, or whether that standard was violated in this case.
Even so, the court finds that the evidence of a 110-day gap in service records, coupled
with Dr. Barbaree’s testimony that the water chemistry was such as to foster the
growth of Legionella, creates a genuine issue of material fact as to whether
270

See doc. no. 74-1 (Opinion of James Barbaree, Ph.D.), at ECF 5.

271

Id.

272

Id.

273

Id.

274

Id.

74

defendants breached a duty owed to Mr. Mueller.
Defendants also assert that plaintiff has failed to present evidence showing that
any alleged breach of duty was the proximate cause of Mr. Mueller’s death. Upon
consideration, however, the court finds that genuine issues of material fact clearly
exist. First, there are the competing conclusions of Dr. Barbaree’s report, and that of
the Legionella Cluster Investigation conducted by Bentley and Dr. Ellis, regarding
the pivotal issue of whether there was a causal linkage between Mr. Mueller’s
contraction of Legionnaires’ Disease and his work environment. In addition, the
parties dispute whether a level of one colony-forming unit per milliliter of Legionella
pneumophila is safe, or whether it is a sufficient concentration to pose a health risk
to humans. The parties also are in disagreement as to whether the results derived
from the water samples collected by Cherie Miller accurately reflected the
concentration of Legionella in the cooling tower water, due to the deficient size of
those samples. Finally, there are genuine issues of material fact regarding the
questions of whether Mr. Mueller frequented the outside smoking area on a regular
basis, and whether water vapor from the cooling tower could have drifted to that
location.
For all of the foregoing reasons, defendants are not entitled to summary
judgment on plaintiff’s negligence claim.
75

B.

Counts Two through Four: Plaintiff’s Negligent Hiring, Training, and
Supervision Claims275
1.

Chugach’s motion

Chugach argues that plaintiff’s negligent hiring and training claims are due to
be dismissed because plaintiff has not presented substantial evidence that Chugach
hired improper persons, or that any of its employees engaged in wrongful conduct.276
In addition, Chugach asserts that plaintiff cannot produce substantial evidence
establishing that any of its employees were incompetent because of a lack of
training.277
While Section II(D) of plaintiff’s opposition brief is entitled “Substantial
Evidence Forecloses Summary Judgment on the Issue of Negligent Hiring, Training,
and Supervision,” plaintiff only addressed the negligent supervision aspect of the
claim alleged in Count Four of her Second Amended Complaint, and not her claims
of negligent hiring (Count Two) and training (Count Three).278 Therefore, plaintiff
has effectively abandoned her claims for negligent hiring and training. Issues and
275

Plaintiff’s claims of negligent hiring and training closely resemble the analysis of a claim
for negligent supervision. See Sanders v. Shoe Show, Inc., 778 So. 2d 820, 824 (Ala. Civ. App.
2000). Even so, plaintiff asserted claims of negligent hiring, training, and supervision as separate
counts in her second amended complaint. See doc. no. 18 (Second Amended Complaint).
276

See doc. no. 86 (Chugach’s Brief in Support of its Motion for Summary Judgment), at 26-

277

Id. at 27-29.

278

Doc. no. 99 (Plaintiff’s Opposition to Chugach’s Motion for Summary Judgment), at 28-

27.

29.

76

contentions not raised in a party’s brief are deemed abandoned. See, e.g., Chapman
v. AI Transport, 229 F.3d 1012, 1027 (11th Cir. 2000) (en banc) (“Parties opposing
summary judgment are appropriately charged with the responsibility of marshaling
and presenting their evidence before summary judgment is granted, not afterwards.”);
Road Sprinkler Fitters Local Union No. 669 v. Independent Sprinkler Corp., 10 F.3d
1563, 1568 (11th Cir. 1994) (holding that a district court can “properly treat as
abandoned a claim alleged in the complaint but not even raised as a ground for
summary judgment”) (citing Lazzara v. Howard A. Esser, Inc., 802 F.2d 260, 269
(7th Cir. 1986) (holding that a ground not pressed in opposition to a motion for
summary judgment is to be treated by the district court as abandoned)).
In opposing a motion for summary judgment, a party may not rely on his
pleadings to avoid judgment against him. There is no burden on the
district court to distill every potential argument that could be made
based upon the materials before it on summary judgment. Rather, the
onus is upon the parties to formulate arguments; grounds alleged in the
complaint but not relied upon in summary judgment are deemed
abandoned . . . .
Resolution Trust Corp. v. Dunmar Corp., 43 F.3d 587, 599 (11th Cir. 1995) (citations
and internal quotation marks omitted).
The heading to Count Four of plaintiff’s second amended complaint clearly
indicates an intention to assert a negligent supervision claim against both Chugach
and Ashland (“Negligent/Wanton Supervision of Chugach Federal Solutions, Inc. and
77

Ashland, Inc.”), although plaintiff’s counsel erroneously framed the allegations of
that Count in the singular, rather than plural: i.e., “The Defendant[s] negligently . .
. supervised employees, during their employment with the Defendant[s]. This
negligent . . . supervision allowed employees to negligently . . . maintain the air
conditioning and heating system located at Building 5681 of the Redstone Arsenal,
which caused MARK A. MUELLER to suffer serious medical conditions and
ultimately cause[d] his death.”279
Moreover, when responding to defendants’ summary judgment motions,
plaintiff’s counsel altered the theory of this claim, and argued that “the negligent
supervision claim against Chugach focuses on whether Chugach, [acting] through its
employees [i.e., Hester and Dyer], kept track of Ashland’s activities competently.”280
This revised iteration of plaintiff’s negligent supervision claim is due to be
dismissed, because plaintiff cannot use her summary judgment brief to assert a new
claim that was not pled in her complaint. See Davis v. Coca-Cola Bottling Co.
Consolidated, 516 F.3d 955, 977 (11th Cir. 2008) (providing that a plaintiff cannot
raise a claim in a brief that was not pled in the complaint); see also Grimsley v.
Marshalls of MA, Inc., 284 F. App’x 604, 610-11 (11th Cir. 2008) (affirming the
279

Doc. no. 18 (Second Amended Complaint) ¶ 27 (alterations and emphasis supplied,
capitalization in original).
280

Doc. no. 99 (Plaintiff’s Opposition to Chugach’s Motion for Summary Judgment), at 2829 (emphasis and alterations supplied).

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dismissal of a claim first raised in a summary judgment brief).
2.

Ashland’s motion

Ashland argues that plaintiff’s negligent hiring and training claims are due to
be dismissed because she has not produced substantial evidence that any Ashland
employee was incompetent or unfit, or that Ashland knew (or should have known) of
any such alleged incompetence or unfitness.281 As with plaintiff’s opposition to
Chugach’s motion for summary judgment, plaintiff stated in a heading to one section
of her opposition brief that “Substantial Evidence Forecloses Summary Judgment on
the Issue of Negligent Hiring, Training, and Supervision,” but the discussion that
followed that heading only addressed her negligent supervision claim, and not her
claims for negligent hiring and training.282 Therefore, for the reasons discussed in
the preceding subsection, plaintiff has effectively abandoned her claims of negligent
hiring and training against Ashland. See, e.g., Chapman, 229 F.3d at 1027.
Ashland argues that summary judgment should also be granted on plaintiff’s
claim for negligent supervision. Alabama law defines the claim of negligent
supervision in the following manner:
In the master and servant relationship, the master is held
281

See doc. no. 65 (Ashland’s Brief in Support of its Motion for Summary Judgment), at 19-

282

Doc. no. 99 (Plaintiff’s Opposition to Chugach’s Motion for Summary Judgment), at 28-

23.
29.

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responsible for his servant’s incompetency when notice or knowledge,
either actual or presumed, of such unfitness has been brought to him.
Liability depends upon its being established by affirmative proof that
such incompetency was actually known by the master or that, had he
exercised due and proper diligence, he would have learned that which
would charge him in the law with such knowledge. It is incumbent on
the party charging negligence to show it by proper evidence. This may
be done by showing specific acts of incompetency and bringing them
home to the knowledge of the master, or by showing them to be of such
nature, character, and frequency that the master, in the exercise of due
care, must have them brought to his notice. While such specific acts of
alleged incompetency cannot be shown to prove that the servant was
negligent in doing or omitting to do the act complained of, it is proper,
when repeated acts of carelessness and incompetency of a certain
character are shown on the part of the servant to leave it to the jury
whether they would have come to his knowledge, had he exercised
ordinary care.
Lane v. Central Bank of Alabama, N.A., 425 So. 2d 1098, 1100 (Ala. 1983) (internal
quotation marks omitted) (quoting Thompson v. Harvard, 235 So. 2d 853, 858 (Ala.
1970)); see also Sanders v. Shoe Show, Inc., 778 So. 2d 820, 824 (Ala. Civ. App.
2000).
The court finds that there are genuine issues of material fact on the following
questions: whether Ashland’s service technicians can be considered incompetent or
unfit for their job; whether Ashland had knowledge of any incompetence; and
whether Ashland’s disregard of those service technicians’ alleged incompetence
caused Mr. Mueller’s death. Specifically, there was an alleged high turnover rate
among the service technicians sent to Redstone Arsenal by Ashland, and those new
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employees allegedly were inexperienced with cooling towers.283 In addition, Chris
Hester testified that he had numerous discussions with Ashland’s representatives
about problems with the services provided.284 Furthermore, Doug Entz, an Ashland
corporate representative, stated during deposition that Ashland had not instituted a
system of checks and balances, to ensure that all cooling towers were inspected on
a monthly basis.285 Accordingly, Ashland’s motion for summary judgment will be
denied with regard to plaintiff’s claim for negligent supervision.
C.

Plaintiff’s Wantonness Claims
Plaintiff’s second amended complaint also alleged that: defendants wantonly

failed to maintain the HVAC system and cooling tower at Building 5681 (Count
One); defendants were wanton in their hiring practices (Count Two); and, defendants
wantonly failed to train and supervise their employees (Counts Three and Four).286
Defendants assert that plaintiff cannot present substantial evidence establishing
that they undertook any act, or failed to undertake any act, with knowledge that injury
was likely to occur. In response, plaintiff states that she does not object to the entry
of summary judgment in favor of defendants on her wantonness claims. Therefore,

283

See doc. no. 87-8 (Deposition of Chris Hester), at 59-60.

284

Id. at 43-44.

285

See doc. no. 87-14 (Deposition of Doug Entz), at 22, 24.

286

See doc. no. 18 (Second Amended Complaint), at 4-7.

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summary judgment will be entered in favor of defendants on those claims.
D.

Claims Asserted by Plaintiff in Her Individual Capacity, or for
Compensatory Damages
Plaintiff’s second amended complaint states that she asserts claims

“individually and in her own capacity as Personal Representative of the Estate of
Mark A. Mueller[,]” and that she seeks recovery of compensatory and punitive
damages.287 The Alabama Wrongful Death Act states that:
(a) A personal representative may commence an action and
recover such damages as the jury may assess in a court of competent
jurisdiction within the State of Alabama . . . for the wrongful act,
omission, or negligence of any person, persons, or corporation, his or
her or their servants or agents, whereby the death of the testator or
intestate was caused, provided the testator or intestate could have
commenced an action for the wrongful act, omission, or negligence if it
had not caused death.
Ala. Code § 6-5-410(a) (1975) (2005 Replacement Vol.) (emphasis supplied). It is
black letter Alabama law that only punitive damages may be recovered in wrongful
death actions. See, e.g., Trott v. Brinks, Inc., 972 So. 2d 81, 84-85 (Ala. 2007); see
also Simmons v. Pulmosan Safety Equipment Corp., Inc., 471 F. Supp. 999, 1001
(S.D. Ala. 1979).
Ashland argues that, because the Wrongful Death Act specifies that only a
personal representative may commence an action, it is entitled to summary judgment
287

See doc. no. 18 (Second Amended Complaint), at 1, 5, 6, 7 (alteration supplied).

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on any claims asserted by plaintiff in her individual capacity. In addition, both
defendants argue that plaintiff cannot recover the compensatory damages sought in
her second amended complaint.
In response, plaintiff states that she is only seeking “damages for wrongful
death stemming from the death of her husband, Mr. Mueller.”288 Therefore, plaintiff
implicitly concedes that summary judgment is due to be entered in favor of
defendants on any individual claims she may have attempted to assert, and on her
claims for compensatory damages.
V. ASHLAND’S MOTION FOR SUMMARY JUDGMENT ON
CHUGACH’S CROSSCLAIMS
A.

Breach of Contract
In its crossclaim, Chugach asserts that Ashland breached the subcontract by:

“(1) supplying defective chemicals that failed to prevent the growth of Legionella
bacteria; (2) failing to properly monitor the chemical levels in the cooling tower for
Building 5681; and (3) failing to properly maintain the automatic biocide injector
system on the cooling tower for Building 5681.”289 Even so, Chugach stated in its
opposition that it “has not identified sufficient evidence to support its contention the

288

See doc. no. 72 (Plaintiff’s Opposition to Ashland’s Motion for Summary Judgment), at
31; see also doc. no. 99 (Plaintiff’s Opposition to Chugach’s Motion for Summary Judgment), at 29.
289

Doc. no. 22 (Chugach’s Crossclaims), at 5.

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chemicals were defective[,]” and, therefore, does not intend to pursue the breach of
contract claim on that ground.290
To prevail on a breach of contract claim, a plaintiff must show: “(1) the
existence of a valid contract binding the parties in the action, (2) his own performance
under the contract, (3) the defendant’s nonperformance, and (4) damages.” Ex parte
Steadman, 812 So. 2d 290, 293 (Ala. 2001) (quoting Southern Medical Health
Systems, Inc. v. Vaughn, 669 So. 2d 98, 99 (Ala. 1995)). Summary judgment is only
appropriate when “the contract is unambiguous and the facts undisputed.” Ex parte
Awtrey Realty Co., Inc., 827 So. 2d 104, 107 (Ala. 2001) (quoting P & S Business,
Inc. v. South Central Bell Telephone Co., 466 So. 2d 928, 931-32 (Ala. 1985)),
overruled on other grounds by White Sands Group, LLC v. PRS II, LLC, 32 So. 3d
5 (Ala. 2009).
Here, the facts are anything but undisputed. Indeed, there are genuine issues
of material fact concerning the questions of: whether the contract between Ashland
and Chugach Management Services was later transferred to defendant Chugach
Federal; whether the contract provision requiring all cooling towers to be inspected
monthly was modified through the parties’ course of performance; whether Ashland
failed to test the cooling tower at Building 5681 over a 110-day period; whether
290

Doc. no. 70 (Chugach’s Opposition to Crossclaim Defendant Ashland’s Motion for
Summary Judgment), at 11-12, n.1.

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Ashland or Chugach was responsible for ensuring that all cooling towers were visited
monthly; whether Ashland was responsible for maintaining the biocide pumping
system; and whether Ashland’s service technicians had the authority to inspect
cooling towers other than those to which they were escorted by Dyer.
Therefore, Ashland’s motion for summary judgment on Chugach ’s crossclaim
for breach of contract will be denied.
B.

Common Law Indemnity
Ashland argues that Chugach’s crossclaim for common law indemnity is due

to be dismissed, because Ashland and Chugach are alleged joint tortfeasors. Ashland
is correct when asserting that, as a general rule, there is no right of indemnity or
contribution among joint tortfeasors under Alabama law. See, e.g., Kennedy Engine
Co. v. Dog River Marina & Boatworks, Inc., 432 So. 2d 1214, 1215 (Ala. 1983)
(“Alabama law does not recognize actions for indemnity or contribution from joint
tortfeasors.”); Parker v. Mauldin, 353 So. 2d 1375, 1377 (Ala. 1977). Even so, there
are a few notable exceptions: i.e., “a joint wrongdoer may claim indemnity where he
has not been guilty of any fault, except technically or constructively, or where both
parties are at fault, but the fault of the party from whom indemnity is claimed was the
proximate or primary cause of the injury.” Crigler v. State, 438 So. 2d 1375, 1385
(Ala. 1983) (citing Mallory S.S. Co. v. Druhan, 84 So. 874 (Ala. 1920)).
85

Chugach asserts that both exceptions apply. Chugach first argues that Ashland
has failed to present evidence showing that it was guilty of any fault. As support for
that contention, Chugach states that it relied exclusively on Ashland for the
inspections of the cooling towers, and any resulting recommendations regarding
adjustments to the chemical feed. In addition, Chugach contends that, even if this
court finds that it was at fault, Ashland’s fault was the proximate cause of Mr.
Mueller’s death, because any Legionella present in the cooling tower would have
been a result of Ashland providing ineffective chemical treatments.
Upon consideration, the court finds that there are genuine issues of material
fact concerning whether Chugach was guilty of any fault, and which defendant, if
any, was the proximate cause of Mr. Mueller’s death. Therefore, summary judgment
will be denied on Chugach’s crossclaim for common law indemnity.
VI. CONCLUSION
An appropriate Order, consistent with this Memorandum Opinion, will be
entered contemporaneously herewith.
DONE and ORDERED this 25th day of June, 2014.

______________________________
United States District Judge

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