Williams v. MD Cowan Inc et al

Filing 180

ORDER granting 156 Motion to Strike ; denying 163 Motion to Amend/Correct; finding as moot 164 Motion to Exclude; finding as moot 166 Motion in Limine. The Court requests a joint status report from the defts by April 20, 2012. Signed by Judge D. P. Marshall Jr. on 4/16/12. (kpr)

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IN THE UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF ARKANSAS

WESTERN DIVISION

JOSHUA ALAN WILLIAMS

v.

PLAINTIFF

No. 4:09-cv-459-DPM

JEFFREY ANDERSON and
TESCO SERVICES, INC.

DEFENDANTS

CHARTIS CASUALTY COMPANY/
AMERICAN INTERNATIONAL SOUTH
INSURANCE COMPANY and GLOBAL
RECOVERY SERVICES

INTERVENORS

ORDER
1. Several months ago, the Court entered a comprehensive order

denying various motions for summary judgment and motions to exclude
proposed expert testimony. Document No. 149. On one point (Anderson
and his employer TESCO Services's motion for summary judgment based
on no duty), the Court denied without prejudice. The Court indicated that
it wanted to reconsider this issue: it requested focused excerpts from the
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evidentiary record on [certain] facts[,]" and anything else in the record
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that illuminates the hectic nature of the work at the well and how the
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various companies on site managed working with and around each other."

Document No. 149, at 12-13.

The Court also requested further legal

argument on Anderson's common-law duty to Williams. Id. at 13. The
parties have filed their papers. And the Court appreciates them.
2. There are two threshold matters. First, Anderson and TESCO
move to strike Williams's exhibits 154-2, 154-3 and 154-4-a new report
from Williams's expert, Perkin, and two Recommended Practice Standards
from the American Petroleum Institute. Second, Williams moves to amend
his complaint and assert a failure-to-train theory directly against TESCO,
supplementing his current respondeat superior theory.
Anderson and TESCO's motion to strike is granted. The Court did
not reopen the summary-judgment record. Instead, the Court requested
focused excerpts from the existing record. Discovery closed long ago. And
while the

Rules

allow supplemental expert opinions in certain

circumstances, Williams's deadline for disclosing expert opinions passed in
October 2010.

Document No. 58. In the circumstances here, the Court

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declines to expand the record with the new materials.
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Williams's motion to amend his complaint is denied. Trial is about

five weeks out; the deadline for proposing pleading amendments passed in
June 2010. As the Court recognized in its recent order, Williams's failure­
,
to-train theory rises or falls as a matter of law on the duty question.
TESCO would be unfairly prejudiced by a belated amendment asserting
direct liability on the threshold of trial. While some discovery has touched
on TESCO's alleged failure to train, the matter is underdeveloped. And it
would be unfair to inject this new theory now when more discovery and
motion practice cannot be done.
3. Anderson and TESCO's duty is a matter of law for the Court.
Coca-Cola Bottling Co. of Memphis, Tennessee v. Gill, 352 Ark. 240, 254, 100

S.W.3d 715, 724 (2003). The scope of that duty is defined in part by the
parties' relationship "because an act is never negligent except in reference
to, or toward, some person or legally protected interest." Hill v. Wilson, 216
Ark. 179, 183, 224 S.W.2d 797, 800 (1949). Foreseeability finishes defining
the scope. The question, in general terms, is whether a reasonably careful
person in Anderson and TESCO's shoes

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would foresee suC;h an

appreciable risk of harm to others as to cause [them] not to do the act, or to
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do it in a more careful marmer." Ethyl Corp. v. Johnson, 345 Ark. 476, 481, 49

S.W.3d 644, 648 (2001) (quotation omitted). Anderson and TESCO had no
duty to guard against risks they could not reasonably foresee. Ibid.
Anderson and TESCO had the duty to use ordinary care in fulfilling
TESCO's obligations under the casing contract. Here Williams is correct: in
its

earlier

order,

the

Court

moved

TESCOjSouthwestem Energy contract.

too

quickly

past

the

Document No. 149, at 12.

The

contract informs the duty question. E.g., The Shaw Group, Inc. v. Marcum,
516 F.3d 1061, 1065-67 (8th Cir. 2008). The Shaw Group's contract with the
Army prescribed specific duties, which the parties essentially agreed
determined The Shaw Group's tort duties to the soldier. 516 F.3d at 1065.
The facts presented a jury question on whether The Shaw Group exercised
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ordinary care in fulfilling those duties. 516 F.3d at 1065-67.
The TESCOjSouthwest Energy contract about safety is general by
comparison. The text of the safety provision of the parties' contract is in
the margin:

TESCO promised to provide

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continuous adequate

·19. SAFETY, HEALTH AND ENVIRONMENTAL POLICY
19.1 [TESCO] shall provide continuous adequate protection of
Work, [Southwestern Energy's] property and adjacent property,
and take all necessary precautions to keep and maintain the

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workplace free from recognized hazards caused by [TESCO], its
employee, agents and others under [TESCO's] control which are
likely to cause death, illness or injury to persons or damage to
property. [TESCO] shall comply and cause [TESCO's] employees,
agents and others under [TESeO's] control entering upon
[Southwestern Energy's] Premises in the performance of Work or in
connection therewith to comply with all applicable safety, health,
and environmental rules of [Southwestern Energy] (as contained in
the most current Southwestern Safety and Health Manual provided
to [TESeO] under this Agreement) together with all applicable
provisions of federal, state or local safety, health, and
environmental laws, rules, regulations or orders. This provision
will not require [Southwestern Energy] to police [TESCO's]
compliance with any safety, health, and environmental rules, laws,
regulations or orders and shall not impose any obligation on the
part of [Southwestern Energy] under such rules,laws, regulations
or orders. Nothing contained in this paragraph shall be interpreted
as enlarging the legal duty of [Southwestern Energy] to [TESCO] or
[TESCO's] agents, employees, and others under [TESCO's] control
or altering the status of [TESCO] as set forth in this Agreement.
19.2 [TESCO] shall not commence Work if [TESCO] has not familiarized
itself with [Southwestern Energy's] safety, health and
environmental rules which are available for [TESCO' s] review
upon [TESCO's] request. In addition, [TESeO] must have all
required safety equipment prior to commencement of Work.
[Southwestern Energy] shall be under no obligation to pay
[TESeO] any amount when [TESeO's] employee(s) and/ or
subcontractor(s) is not permitted to perform Work due to lack of
safety equipment. Additionally, [TESCO] may be liable to
[Southwestern Energy] for any incremental costs incurred (e.g.,
extra logistics costs) if immediate removal of [TESeO' s]
employee(s) and/ or subcontractor(s) is required or Work is
delayed due to [TESCO' s] failure to meet all safety requirements.
19.3 Subparagraphs 19.1 and 19.2 in this Paragraph 19 are agreed to by
both [Southwestern Energy] and [TESCO] to be of the highest
importance. A breach or violation of any of the terms of Paragraph
19 of this Agreement by [TESCO] will be considered to be a
material and substantial breach of this Agreement. If [TESCO] fails

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protection of Work," that is, of its services at the well. Document No. 97-3, at

5 f TESCO also promised to "take all necessary precautions to keep and
maintain the workplace free from recognized hazards caused by [TESCO],
its employee[s], agents and others under [TESCO's] control which are
likely to cause death, illness or injury to persons or damages to property."

Ibid.

TESCO

promised

that

it-"and

others

under

[TESCO's]

control" - would comply with Southwestern Energy's safety rules.

Ibid.

TESCO did not promise to police Southwestern Energy's compliance with
that company's own safety rules. Nor did TESCO promise to police DeSoto
Drilling's compliance with its parent company's safety rules.

TESCO's

safety obligations were about its own work, not safety obligations of others.
Most importantly, the parties' contract did not put TESCO in charge of the
drawworks or drawworks safety during casing operations. As to those

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to promptly cure said breach or violation or to otherwise comply
with Paragraph 19 of this Agreement. [Southwestern Energy] may
seek removal of [TESCO] as provided in this Agreement and may
take any other action permitted under law or by the terms of this
Agreement, including its termination.

Document No. 97-3, at 5.

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drawworks, DeSoto Drilling, not TESCO, was the party contractually

situated like The Shaw Group.
The

undisputed

fact

is

that

DeSoto

Drilling - Williams's

employer - decided how to operate the rig in general and when to move
the rawworks in particular. Randy Payne, DeSoto's operations manager,
d
explained in his deposition:

Counsel for AndersonjTESCO: Okay. Having gone through
this lawsuit on behalf of Mr. Anderson and TESCO, it appears
the biggest criticism that Mr. Williams has with what Mr.
Anderson did or didn't do on the rig was that he instructed or
directed in some capacity Derrick Long to raise the top drive
which caused Josh to have his leg cut off. Who directs and
controls the operations on a DeSoto rig, specifically rig number
nine?
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Counsel for Williams: Object as to form as to the preface of the

question. Go ahead.

Witness Payne: The driller controls his crew. The rig manager
has control of the entire operation. It doesn't really matter who
tells our people what to do. The person that's operating the rig,
whether it's the driller or the [assistant driller], they ultimately
assume responsibility of what's going on, knowing what's
going on, and if they can or cannot perform that-because we
have people out there telling us all the time to pick up, set
down, stop, do this, do that, and that's why we have the people
we do to make sure that all of that is coordinated and is done
correctly.

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Counsel for AndersonjTESCO: So irrespective of whether Mr.
Anderson said, Pick it up, with a question mark, Pick it up,
with an exclamation point or, Pick it up, with a period, it's a
DeSoto employee that is the one that makes the decision
whether or not to engage the clutch and raise the drawworks.
Is that how I understand it?
Witness Payne: That is correct.
Document No. 151-5, at 2-3.
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Beyond DeSoto's undisputed control of the rig and its drawworks,

the Court concludes - taking the focused record excerpts in the light most
favorable to Williams when disputed - that no genuine issue exists about
several other important facts.
•

Everyone was in a hurry that night. Concrete trucks were
waiting. And DeSoto wanted to resume casing as soon as
possible. Document Nos. 151-2, at 16-18; 97-4, at 42; & 151-1, at
15.

•

TESCO, through Anderson, was responsible for running the
TESCO tool. Document No. 151-2, at 4-10.

•

Anderson was not to begin or resume any casing operations
until all the rig workers were in a safe position. Document No.
97-4, at 13.

•

TESCO depended on DeSoto to move the drawworks and the
TESCO tool. Document No. 151-2, at 4-10.

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•

Before any casing work began at the well site, TESCO led a
safety meeting about casing with DeSoto folks. This meeting
was, among other things, to build a sense of teamwork about
safety for the work. Document No. 97-4, at 12-13.

•

Long, DeSoto's assistant driller, was in charge of running the
rig the night of the accident.

•

Right before the accident, Long's DeSoto supervisors had told
him and Anderson to resume casing. Document Nos. 151-2, at
16-17, & 97-4, at 42.

•

When Long and Anderson got to the rig floor, Long wondered
where Williams was, looked up, and could not see him.
Document No. 151-2, at 17

•

When he saw Long look up, Anderson looked up too and did
not see Williams either. Document Nos. 151-2, at 16-17.

•

Then Anderson said, illift it up," or some encouraging words to
that effect, to Long. Anderson needed the drawworks lifted
slightly to do some work with a file. Document No. '151-2, at 17.

•

Whether to move the drawworks was Long's decision.
Document No. 97-7, at 10.

•

(

TESCO personnel were not authorized to operate the
drawworks, and DeSoto personnel would stop them if TESCO
personnel tried to do so. Document No. 151-1, at 11-12.

•

(

Long released the brake, kicked the clutch in, and pushed the
throttle. Document No. 151-2, at 17.

•

Williams was pinned, and badly injured, when the drawworks
moved up.

(

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If Williams had been injured by TESCO's tool when Anderson was

operating it, then the duty question would be clear. So, too, if Williams

h~d been injured by Long moving the drawworks with no involvement by
Anderson. TESCO's work provided the occasion for the accident. But
TESCO's work was dependent on DeSoto Drilling's control of the
drawworks.

Or to put it in terms of people, Anderson's work was

dependent on Long's moving the drawworks up and down. Whether to
engage this equipment was Long's decision, a decision already authorized
in general- indeed, directed - by Long's bosses. But Anderson needed this
step taken and he encouraged it.
(

Cobb v. Indian Springs, Inc., is illuminating. 258 Ark. 9,522 S.W.2d 383

(1975). Applying a section from the First Restatement of Torts, the Court
emphasized several things: iiBig Jim" Babbitt, the security guard at Indian
Springs mobile-home park, was in a pOSition of authority over the
teenagers; Big Jim suggested to the sixteen-year-old driver that the young
man show the group what his 1964 Comet would do; and the guard told
the driver to shut the car down when he came over the top of a hill because

(

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of a nearby gas line. 258 Ark. at 12-19, 522 S.W.2d at 384-89. Big Jim's

authority and his encouragement loomed large. Id. at 16-17, 522 S.W.2d at
387.
The facts here are different. Long, not Anderson, was in control of
whether the drawworks moved. Like Big Jim the security guard in the
Cobb case, Anderson did encourage action.

Unlike the teenage driver,

however, Long was already under general instructions from his bosses to
take action. The teenager's parents had not told him to go drive around
and show off what his Comet could do.

In sum, Anderson had less

authority and gave weaker encouragement than did the security guard
whose acts presented a jury question.
The Court is persuaded that the RESTATEMENT (SECOND) OF TORTS §
876 provides a useful rubric too. Anderson did not engage the drawworks

ill concert with Long. These men had a common design - getting back to
work casing.

But Anderson's encouraging word was not tortious.

RESTATEMENT (SECOND) OF TORTS § 876(a) (1977).

Anderson did not,

knowing that Long's conduct was in breach of his duty to Williams, give
Long substantial assistance or substantial encouragement. RESTATEMENT
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(SECOND) OF TOR1S § 876 (b) (1977).

Finally, Anderson did not give

substantial assistance at all- he echoed the marching orders Long had
already received from his bosses at DeSoto Drilling.

RESTATEMENT

(SECOND) OF TOR1S § 876(c) (1977).
The casing work was, in Anderson's phrase,

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a teamwork deal."

Document No. 97-4, at 13. Collaboration between TESCO and DeSoto was

essential; Anderson and Long had to work together. The TESCO I DeSoto
c6llaboration takes the legal issue back to the undisputed facts about
control. There was a special relationship by contract, word, and deed
between TESCO and DeSoto. But DeSoto Drilling, acting in the persons of
Long and his superiors, controlled when and how the drawworks moved.
All the circumstances combine to put the duty here on DeSoto, not TESCO.
Smith v. Hansen, 323 Ark. 188, 195-97,914 S.W.2d 285, 289 (1996).

The parties' relationship determines both the duty owed and the
foreseeability of harm. Hill, 216 Ark. at 183, 224 S.W.2d at 800i see also
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Shannon v. Wilson, 329 Ark. 143, 158, 947 S.W.2d 349, 356-57 (1997). The

differing relationships among the folks involved in the casing operation
therefore resulted in different duties to one another and, in particular, to
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Williams. Long, for example, had a special relationship to Williams as his
DeSoto co-worker. He also had control over moving the rig's drawworks.
This combination of relationship and control meant that Long could
reasonably foresee the risk of harm from his actions; and thus he had a
duty to guard against that harm.
The relationship running from Williams to Anderson to TESCO, on
the other hand, is more attenuated.

Anderson and TESCO still owed

Williams a duty of ordinary care under the circumstances.

But here,

ordinary care did not require Anderson and TESCO to foresee that
Anderson's encouraging word might push Long-a worker with
independent control of the rig and orders from his own bosses - to do
something he did not already intend to do. Ordinary care did not require
TESCO to guard against Anderson's every word and against all speech of
every TESCO employee. Because Anderson's statement did not violate the
duty that he and TESCO owed to Williams, the Court vacates its earlier
denial without prejudice of Anderson and TESCO's motion for summary
judgment. Document No. 149, at 18.
granted.
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The motion, as supplemented, is

* * *

Motion to strike, Document No. 156, granted.

Motion to amend,

Document No. 163, denied. TESCO and Anderson's motion for summary

judgment, Document No. 106, granted as supplemented by Document No.
151.
The only claims remaining for trial are cross claims among the
Defendants. Williams's pretrial motions, Document Nos. 164 & 166, and
Anderson and TESCO's pretrial motion about Williams's designated
deposition testimony, Document No. 165, are therefore denied as moot. The
Court requests a joint status report from the Defendants about (1) how
many days they estimate the trial on their cross claims will take, and (2)
which, if any, of TESCO and Anderson's pending pretrial motions,
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Document Nos. 165, 169, & 171, still apply to the trial on the cross claims.

This status report is due by 20 April 2012.
So Ordered.

D.P. Marshall Jr. {/
U:nited States District Judge

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