Williams v. MD Cowan Inc et al
ORDER denying 81 Motion for Partial Summary Judgment; denying 85 Motion for Partial Summary Judgment; denying 96 Motion for Partial Summary Judgment; denying 99 Motion in Limine; denying 101 Motion for Summary Judgment; denying 105 Motion in Limine; denying 106 , but, as to common-law duty, the denial is without prejudice, the Motion for Summary Judgment; denying 109 Motion in Limine; denying 110 Motion in Limine. Signed by Judge D. P. Marshall Jr. on 9/29/11. (kpr)
IN THE UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF ARKANSAS
JOSHUA ALAN WILLIAMS
MD COWAN, INC.; TESCO SERVICES,
INC.; JEFFREY ANDERSON; and RIG
CHARTIS CASUALTY COMPANY/
AMERICAN INTERNATIONAL SOUTH
INSURANCE COMPANY AND GLOBAL
In 2007, twenty-one-year-old Joshua Williams lost his right leg in a
drilling accident. He brought this diversity action against MD Cowan and
Rig Technology for strict products liability, negligent design, and failure to
warn; and against Anderson and Tesco for negligence. Nine motions are
ripe. The Court apologizes for its delay in ruling.
1. The Facts. DeSoto Drilling employed Joshua Williams. In April of
2007 he was working on Rig #9, which MD Cowan designed and
Rig Tech supplied the hoisting system-also called the
traveling blocks or drawworks-incorporated into Rig #9. Tesco Services
had a tool attached to the top drive of DeSoto's rig. Jeffery Anderson, a
Tesco employee, was responsible for operating that particular tool.
On the day of the accident, the top drive of the rig misaligned.
Another DeSoto employee told Williams and a co-worker to climb the mast
and realign the top drive.
realignment and came down.
The co-worker finished his part of the
Williams, however, had to make more
Derrick Long, another DeSoto employee, was acting as the ng
operator or driller. When Williams's co-worker got down, he told Long
that he was finished with his repairs. Unaware that Williams was still
working on the top drive, at least two DeSoto employees made a decision
to resume operations. Williams alleges that Anderson, the Tesco employee,
also participated in that decision, telling Long "lift it up" or words to that
Long engaged the clutch; and the drawworks moved upward,
catching Williams's leg in a pinch point. Among other injuries, Williams's
right leg had to be amputated above the knee.
The parties' main factual disputes center around (1) what additional
steps, if any, Williams and his co-workers could or should have taken to
prevent the accident; (2) whether Rig #9 complied with appropriate
industry safety standards; and (3) whether Rig #9 was defective and
unreasonably dangerous. Williams moves for partial summary judgment
against all Defendants, alleging that the only issue remaining for trial is
The Defendants respond with cross-motions for summary
Finally, all parties seek to exclude opinions from opposing
experts under Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579
2. The Legal Standard. Summary judgment is appropriate when
there is no genuine dispute of material fact and the moving party is entitled
to judgment as a matter of law. FED. R. ClY. P. 56(a). The Court views the
evidence on each motion in the light most favorable to the nonmoving
party. Gazal v. Boehringer Ingelheim Phannaceuticals, Inc., 647 F.3d 833, 837
(8th Cir. 2011). If the moving party shows that no genuine dispute of
material fact exists on a particular issue, then the nonmoving party must
meet proof with proof to show otherwise. Celotex Corp. v. Catrett, 477 U.S.
317, 322-24 (1986). If no reasonable jury could return a verdict for the non
moving party in light of all the proof, then summary judgment is
appropriate. RSBI Aerospace, Inc. v. Affiliated FM Insurance Co., 49 F.3d 399,
401 (8th Cir. 1995).
3. MD Cowan's Liability. Williams makes three claims against MD
Cowan: (1) strict liability for defective design; (2) failure to adequately
warn; and (3) negligent design.
In order to succeed on his strict-liability design claim, Williams must
prove: (1) damages; (2) that MD Cowan was engaged in the business of
manufacturing, assembling, selling, leasing or distributing the rig; (3) that
MD Cowan supplied the rig in a defective condition that made it
unreasonably dangerous; and (4) proximate cause.
Pilcher v. Suttle
Equipment Co., 365 Ark. 1, 6,223 S.W.3d 789, 794 (2006). Williams and MD
Cowan dispute only the last two elements.
Williams is not entitled to summary judgment against MD Cowan on
this claim. First, when viewed in the light most favorable to MD Cowan,
the evidence does not show that the company supplied the rig in a
defective condition that was unreasonably dangerous. Williams points to
MD Cowan's failure to comply with standards from the American National
Standards Institute and the American Petroleum Institute as evidence that
the rig was defective and unreasonably dangerous. The ANSI and API
standards, however, are not the law; they are voluntary standards. Any
violation of ANSI or API standards is only evidence of defect; it does not
establish that the rig was defective as a matter of law.
Newberry Co., 549 F.2d 1166, 1168 (8th Cir. 1977).
Further, MD Cowan has met proof with proof: it has offered its own
expert testimony that the company did not run afoul of ANSI or API
standards and that the rig was neither defective nor unreasonably
dangerous. Conseco Life Insurance Co. v. Williams, 620 F.3d 902, 909 (8th Cir.
It is not this Court's place to weigh the competing evidence.
Anderson v. Liberty Lobby, Inc., 477 U.S. 242,249 (1986). Instead, a jury must
consider the credibility of the parties' experts, determine what the
applicable industry standards were, and decide whether the rIg was
Williams's motion on this claim also fails on causation.
Arkansas law, "causation is almost always a question of fact for the jury
and not appropriate for summary judgment." Southeastern Distributing Co.
v. Miller Brewing Co., 366 Ark. 560, 568-69, 237 S.W.3d 63, 69 (2006). This
case is no exception. MD Cowan has offered proof that Williams's and his
co-workers' negligence in not following established safety procedures
proximately caused the accident. It is for the jury to decide whether a
defect in the rig, Williams's actions, others' actions, or some combination of
circumstances caused the accident.
Williams is not entitled to summary judgment on his negligent
design claim for the same reasons. Genuine issues of material fact exist
that must be resolved by a Jury:
What were the applicable industry
standards of care - ANSI, API, OSHA, or something else?
Cowan's rig meet the appropriate standard?
Was Williams's alleged
negligence a proximate cause of his injuries? The parties, through their
experts and the record, have created factual issues on all these points.
Summary judgment is therefore inappropriate.
Williams is not entitled to summary judgment on his failure-to-warn
claim either. Generally, "there is a duty to warn the ultimate user of a
product of the risk of the product.
This duty exists under either a
negligence theory or a strict-liability theory." Lee v. Martin, 74 Ark. App.
193, 199-200,45 S.W.3d 860, 865 (2001) (citation omitted).
Williams alleges that MD Cowan provided no warnings with the rig.
MD Cowan, however, says it supplied "manuals of the component part
manufacturers and remain[ed] available to DeSoto Drilling for inquiries."
Document No. 89, at 4. It also argues that DeSoto Drilling was aware of the
lockout/ tag out capabilities of the rig. Document No. 89, at 4-5.
" [A]dequacy of a warning is generally a question of fact for the jury."
Bushong v. Garman Co., 311 Ark. 228, 233, 843 S.W.2d 807, 810 (1992).
Whether MD Cowan's reliance on the component manufacturers' warnings
was acceptable under the circumstances is bound up with whether the rig
itself was defective. The warnings' adequacy thus presents a jury issue as
If Williams proves to the jury that NID Cowan's warnIngs were
inadequate, then a presumption arises that [Williams] would have read
and heeded adequate warnings or instructions. This presumption may be
rebutted by evidence which persuades the trier of fact that an adequate
warning or instruction would have been futile under the circumstances."
Bushong, 311 Ark. at 234,843 S.W.2d at 811 (quotation omitted).
MD Cowan argues that Williams
ignored his own training, the
policies and procedures of his employer, and a sign on the ladder he
climbed to reach the mast which would have reminded him to follow lock
out/tag out procedures."
Document No. 88, at 16.
In the face of these
contentions and Williams's deposition testimony, a reasonable jury could
find that Williams would not have heeded adequate warnings. Therefore,
even if MD Cowan's warnings were inadequate, the evidence viewed in the
light most favorable to MD Cowan shows that a jury issue remains on
whether adequate warnings would have been futile.
issues of material fact exist on all of Williams's claims, his motion for
partial summary judgment against MD Cowan is denied.
MD Cowan's motion for summary judgment - presented by adoption
of the relevant portions of Rig Tech's summary-judgment motion - fails as
well. The same genuine issues remain when the table is turned and the
evidence viewed in the light most favorable to Williams. Williams's claims
raise questions of defectiveness and causation - questions that must be left
to the jury in light of the competing expert opinions and other testimony.
MD Cowan's motion for summary judgment, Document No. 104, is
therefore also denied.
4. Rig Tech's Liability. For the reasons explained as to MD Cowan,
neither Williams nor Rig Tech is entitled to summary judgment on
Like his case against MD Cowan, Williams's case
against Rig Tech is tied up in factual questions for the Jury:
standards was Rig Tech required to meet? Did it meet them? If not, did its
failure proximately cause Williams's injury?
Did Rig Tech provide
Would adequate warnings have been futile?
legal analysis is virtually identical; and the disputed facts preclude
summary judgment for Williams and Rig Tech too.
But Williams's case against Rig Tech presents a wrinkle-the
This doctrine provides that
inherently safe component parts are not responsible for accidents that
result when the parts are integrated into a larger system that the
component-part supplier did not design or build. This doctrine applies to
claims for negligence and strict liability./I Wagner v. General Motors Corp.,
370 Ark. 268, 275, 258 S.W.3d 749, 755 (2007) (quotation omitted); see also In
re TMJ Implants Products Liability Litigation v. £.1. DuPont de Nemours & Co.,
97 F.3d 1050, 1055 (8th Cir. 1996). Rig Tech argues that the component
parts doctrine bars Williams's claims against it.
Rig Tech may be right. If its drawworks were an inherently safe
component part and Rig Tech did not participate in designing or building
the rig or integrating the drawworks into the rig, then Williams's claims
against Rig Tech fail. But factual issues preclude the Court from reaching
this conclusion at this point. First, there is a genuine dispute-arising out
of the parties' ANSI/API/OSHA battle-as to whether Rig Tech's
drawworks were defective in and of themselves. If they were, then the
component-parts doctrine does not shield Rig Tech from liability. Further,
the parties dispute the degree of involvement that Rig Tech had in the
drawworks. Williams argues that Rig Tech engineered and designed the
drawworks specifically for MD Cowan and this particular rig model. Rig
Tech, on the other hand, argues that it merely supplied the drawworks
based on MD Cowan's design requirements. Whether the drawworks were
defective and how much involvement Rig Tech had in designing the
drawworks for integration into Rig #9 are questions for the jury. Only after
those questions are answered can the Court determine whether the
component-parts doctrine bars Williams's claims against Rig Tech as a
matter of law.
Tesco's and Jeffrey Anderson's Liability.
against Tesco and Anderson are different. Williams brings a negligence
claim against Anderson for telling Derrick Long to move the top drive,
which crushed Williams's leg.
Williams also alleges that Tesco, as
Anderson's employer, is liable for his negligence.
And on summary
judgment, Williams argues a failure-to-train theory against Tesco.
Williams backs his allegations with contentions about common-law
duty and contractual duty. The second contention is misplaced. Anderson
was not a party to the TESCO/Southwest Energy contract. A duty of care
sometimes arises from a contractual relationship.
Keck v. American
Employment Agency, Inc., 279 Ark. 294, 300-01, 652 S.W.2d 2, 6 (1983). But
Anderson owed no duty of care to Williams through a contract to which he
was not a party.
The duty question as a matter of common law is not so clear. The
Court appreciates the parties' briefing but concludes that this issue needs
more focused attention on the facts and the law. Anderson and Tesco's
motion for summary judgment is denied without prejudice. The Court
reopens the dispositive-motion period until 1 November 2011 and invites
these Defendants to renew their motion on Anderson's common-law duty
to Williams before that date. Williams should respond within thirty days
after any renewed motion is filed; Anderson and Tesco may reply within
fifteen days. No sur-reply will be allowed.
The Court would benefit from a set of focused excerpts from the
evidentiary record on these facts: the relationships and collaboration
between DeSoto personnel, Tesco personnel, and individuals from other
companies at the well site; all the evidentiary materials about who said and
did what right before the accident; and anything else in the record that
illuminates the hectic nature of the work at the well and how the various
companies on site managed working with and around each other. Second,
the Court would benefit from more legal argument on common-law duty.
Beyond the RESTATEMENT (FIRST) OF TORTS, do the RESTATEMENT (SECOND)
or RESTATEMENT (THIRD) or treatises offer any guidance on this duty
question? And beyond the Cobb case, do the more recent Arkansas cases on
duty and foreseeability help resolve the issue as to Anderson?
The Court, in sum, needs more help from the parties on the material
undisputed facts, and the law, about what common-law duty, if any,
Anderson owed Williams in the particular circumstances presented by this
drilling operation. Tesco's potential liability on the newly raised failure-to
train theory will, it seems to the Court, rise or fall depending on whether
Anderson had a duty and, if so, that duty's scope.
Williams's motion for summary judgment against Anderson and
Tesco is denied in any event. Williams has the burden of proof. And even
if Anderson owed Williams a duty, whether or not Anderson exercised
ordinary care is a question for the jury on the record presented.
6. Daubert Motions. The parties have also filed competing Daubert
motions to exclude the testimony of opposing expert witnesses. Williams
argues that the Defendants' experts' opinions are irrelevant and unreliable
because they focus on employer obligations under OSHA rather than
design obligations under ANSI. But as the Court has noted, jury questions
exist on what the applicable industry standards were at the time of the
accident and whether the rig complied with those standards. The parties
are entitled to present their experts' opinions to help the jury answer these
questions as long as those opinions are relevant and reliable. Daubert, 509
u.S. at 589-91.
Rather than showing irrelevance or unreliability, Williams has shown
that the Defendants' experts reached different conclusions and focused on
different standards than his experts.
Williams cannot exclude other
experts' opinions simply because they do not align with his experts'
opinions - that is the nature of competing expert testimony.
reviewed the record and reports, the Court concludes that the Defendants'
experts have testimony to offer that is sufficiently relevant and reliable to
be considered by the jury.
Williams also attempts to exclude testimony from Rig Tech expert
C.S. Kirkpatrick because his report does not set forth his qualifications as
required by Federal Rule 26(a)(2). Rig Tech says that it thought a copy of
Kirkpatrick's CV had already been transmitted to Williams and that any
failure to provide it was unintentional. Rig Tech has since filed a copy.
The Court takes Rig Tech at its word, concluding that this inadvertent
omission should not preclude Kirkpatrick from offering his expert opinion,
especially considering that trial is almost eight months away. If it has not
already done so, Rig Tech must also supplement its disclosures to include
information about other cases in which Kirkpatrick has testified and his
compensation in this case. FED. R. CN. P. 26(a)(2)(B)(v) & (vi).
Finally, Williams argues that Defendants' expert opinions are
cumulative and their testimony should therefore be limited. This portion
of Williams's motion is premature. Overlap in the experts' reports does not
necessarily mean that their testimony will be cumulative and thus perhaps
The Court encourages all counsel to work together and
streamline each expert's testimony to eliminate duplication. If this remains
an Issue, the Court will take it up at the pretrial.
Document No. 110, is denied.
The Defendants also move to exclude the opInIons of Williams's
experts. They first argue that the experts' opinions regarding convenience
improperly invade the province of the jury. It is true that the Court must
"guard against invading the province of the jury on a question which the
jury [is] entirely capable of answering without the benefit of expert
opinion." Robertson v. Norton Co., 148 F.3d 905, 908 (8th Cir. 1998). But
even assuming that convenience is an ultimate issue, expert testimony on
that issue is admissible if it would will assist the jury in understanding the
evidence or making a determination on that issue. FED. R. EVID. 702 & 704.
The experts may offer their informed opinions on the convenience issue in
light of their specialized knowledge of human and other factors that bear
on convenience in industrial settings.
The Court also disagrees with Defendants' contention that because
convenience involves subjective judgment, expert opinions about it are
Williams has retained Dr. Kenneth Laughery, a
psychologist with experience in human-factors studies, on this point.
Laughery has "extensive experIence In assessIng dangers in industrial
settings, including drilling operations" and "was retained to explain the
dynamics of the occurrence from the standpoint of predictive human
behavior[.]" Document No. 125, at 6.
Laughery's opinion is sufficiently
reliable; and it will inform the jury about psychological and human factors
that bear on the convenience issue.
The remainder of the Defendants' criticisms about Williams's experts
are grounds for robust cross-examination, not exclusion. For example, the
Defendants argue that Williams's experts have never designed or
developed lockout/tag out devices in the oil and natural gas industry.
They also say that an alternate design proposed by one of Williams's
experts was developed solely for this litigation. These criticisms go to the
weight of each expert's opinion rather than admissibility. On the whole,
the experts' opinions are sufficiently reliable and relevant to go to the jury.
Williams's motions for partial summary judgment against MD
Cowan, Rig Tech, Tesco, and Jeffrey Anderson, Document Nos. 81, 85, & 96,
are denied. Rig Tech's motion for summary judgment, Document No. 101,
and MD Cowan's motion for summary judgment by adoption, Document
No. 104, are denied as well. Anderson and Tesco's motion for summary
judgment, Document No. 106, is denied- but as to common-law duty the
denial is without prejudice. Finally, Williams's Daubert motion, Document
No. 110, is denied; and the Defendants' Daubert motions, Document Nos. 99,
105, & 109, are also denied.
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