Pursell v. Hydrochem LLC., et al
ORDER DENYING 131 Miller Environmental, LLC's Motion for Summary Judgment consistent with the attached Memorandum and Order. This matter remains set for an in-person status conference on November 30, 2022 at 10:30 a.m. Signed by Magistrate Judge Mark A. Beatty on 11/21/2022. (spl)
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IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
EARL AND MONICA PURSELL,
HYDROCHEM LLC, ET AL.,
Case No. 3:20-CV-01188-MAB
MEMORANDUM AND ORDER
BEATTY, Magistrate Judge:
Presently before the Court is Miller Environmental’s motion for summary
judgment (Doc. 132). For the reasons outlined below, the motion will be denied.
This case was first filed on September 11, 2020 in the Third Judicial Circuit Court
in Madison County, Illinois. Plaintiffs Earl Pursell, III, and Monica Pursell seek to recover
money damages for personal injuries and consortium injuries after Mr. Pursell sustained
injuries from an incident that occurred on September 15, 2018 at the Wood River Refinery
in Madison County, Illinois. This case was then removed to the Southern District of
Illinois by Hydrochem, LLC (“Hydrochem”) on November 5, 2020 pursuant to diversity
jurisdiction (Doc. 1). See 28 U.S.C. §1332; 28 U.S.C. §1446.
Third-Party Plaintiff Hydrochem, LLC then filed a third party complaint against
Miller Environmental (“Miller”) on May 14, 2021 (Doc. 31). In this complaint, Hydrochem
details that Miller was hired by the landowner, Phillips 66, to decontaminate, clean,
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hydro-clean, remove gases, and otherwise make safe the vessel/quench column V-18107
in anticipation of boilermakers for Miller Industrial Service Team, Inc., (“MIST”) to enter
the vessel to vacuum Raschig rings (Doc. 31, p. 2). According to Hydrochem, Miller
negligently and carelessly failed to properly inspect V-18107 to identify potentially
combustible dusts, vapors, gases, and other hazardous materials; negligently and
carelessly failed to properly decontaminate the vessel; and negligently and carelessly
failed to properly inspect the vessel (Id. at pp. 2-3). Hydrochem outlines that on
September 15, 2018, because of Miller’s negligent and careless actions, Mr. Pursell
suffered injuries due to a fire and explosion (Id. at p. 4).
After engaging in discovery, Miller filed its motion and supporting memorandum
for summary judgment on June 17, 2022 (Docs. 131 132). The same day, Miller also filed
a motion to exclude Hydrochem’s expert’s testimony (Doc. 133). On July 18, 2022,
Hydrochem filed separate responses to the motion for summary judgment and the
motion to exclude (Docs. 139, 138). Miller filed a reply brief on August 1, 2022 (Doc. 147).
On or about March 22, 2018, Miller submitted a proposal to decontaminate V-
18107 (Doc. 139-1). In the “Detailed Cleaning Method” portion of the proposal, Miller
stated that it would “inject Clean Sweep 2000X into the liquid circulation and supplied
steam headers” after the system is heated “for approximately 8-12 hours in each system”
(Id. at p. 10). The method, as described by Miller, goes on to state that “each system will
be steam rinsed for 1-2 hours prior to moving onto the next step in the decontamination
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process” (Id.). Further, the proposal contained a Responsibility Table, which
demonstrated whether Miller, Phillips 66, or both would be responsible for performance
of certain activities (Id. at pp. 11-12). Among Miller’s sole and joint responsibilities were
“Vacuum Truck,” “Use of equipment to maximize the cleaning effectiveness,”
“Monitoring and testing of cleaning solution,” “Temperature of cleaning solution,”
“Temporary Circulation Equipment,” “Hydrocarbon Test,” and “Analytical Testing.” Id.
The scope of work, specifically as to V-18107, included a liquid wash and vapor phase
(Id. at p. 8).
Miller’s Procedure to Decontaminate V-18107
Miller developed a procedure to decontaminate V-18107 (Doc. 139-4). The
procedure outlines that the Clean Sweep™ 2000X “will neutralize iron sulfides and
decontamination process” (Id. at p. 2). Once injected into the liquid solution, Clean
Sweep™ 2000X continues “at a steady rate until the system is deemed hydrocarbon and
pyrophoric free,” and circulates liquid in the bottoms of V-18107 “to remove any
hydrocarbon and pyrophoric material in the system” (Id. at pp. 2-3). The procedure
further indicates that Miller “monitor[s] the waste from the bottom of the vessel to verify
the presence of cleaning solution” and that Miller has the option of either verifying
through “visual testing” or through “analytical testing” at the drain header (Id. at p. 6).
Additionally, each procedural step in the cleaning process was required to be
signed off on before the next procedural step could occur (Doc. 139-3, p. 17). However,
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no records of signing off exist because they were destroyed in a hurricane, and digital
copies were not retained. See Doc. 139-3, pp. 6-12.
Deposition Testimony Regarding Miller’s Decontamination Process
Joseph Melton was Miller’s project and site manager for the turnaround project at
Wood River (Doc. 132-1, p. 7). Miller’s role in the turnaround was to assist Phillips 66 in
removing Hydrogen Sulfide from the system so that Phillips 66 could open various
vessels for maintenance. Id. Mr. Melton testified that on most turnarounds, Miller is not
present on the site while hydro blasting, vacuuming, or similar activities are performed
(Id. at p. 9). Mr. Melton further testified as to the process by which Miller executed this
turnaround project. The turnaround project consisted of decontaminating (also called
“deconning”) gases within a vessel at Wood River using steam, water, and “chemistry”
(Id. at p. 15). Decontamination is different from chemical cleaning because chemical
cleaning uses acid and is caustic, while decontamination uses gases and vapor space. Id.
Generally, there are two ways to remove iron sulfides. This is done either “through
a chemical process with the iron scale through an acid wash and add some surfactant in
with it to remove some of it” or by “removing the H2S, which is the hydrogen sulfide,
which is a sulfur component in the iron [sulfides] […] because by taking one part of the
molecule out, you’ve eliminated” the iron sulfides (Doc. 139-2, pp. 5-6). For the Wood
River project, Mr. Melton explained that Miller used a liquid wash/vapor to de-gas the
V-18107 quench column at issue by injecting a propriety compound called Clean
Sweep™2000X into the column (Doc. 132-1, p. 16). Miller was hired to remove the
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hydrogen sulfide from the system through the use of Clean Sweep 2000X in order for the
system to be opened up and repaired (Doc. 139-2, pp. 5-6).
Mr. Melton explained that Clean Sweep™ 2000X is “20% sodium permanganate,”
which is similar to the solutions used by other companies that perform this type of work
(Doc. 132-1, p. 16). Generally how this type of work occurs is that Miller fills the system
(V-18107, in this case) with water and then circulates that water using Phillips 66’s pumps
(Id. at p. 18). Miller then injects the chemical solution into the bottom of the system while
the vessel is heating up. Id. Mr. Melton explained that the airspace above the waterline
(“vapor space”) is then used to clean the overhead accumulator drum. Id. Mr. Melton
testified that Phillips 66 monitors this phase of the process to make sure it is flowing
correctly using a control board. Id.
Clean Sweep™ 2000X is purple in color and will change in color, which will trigger
different protocols. For example, if the solution is not purple, Mr. Melton explained that
there is a “dirty system with a lot of hydro carbonate and oxidation is available” (Id. at p.
18). When this happens, Miller continues to pump Clean Sweep™ 2000X into the system
until the solution turns purple again or there is an “oxidation percentage.” Id. Essentially,
this means the solution is still reacting with some of the sulfur content or some of the
hydrogen until it turns purple or there is an oxidation percentage. Ultimately, Mr. Melton
explained that “you can’t finish the process” until the solution is purple or there is an
oxidation percentage. Id. Before moving onto the next step in the process, Miller provides
Phillips 66 with a final sample (Id. at pp. 18-19). Phillips 66 also performs gas checks on
the overhead of the vessel to ensure hydrogen sulfide is removed from the airspace. Id.
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During the de-gassing process, the hydrogen sulfide does not disappear; rather it
is “removed as neutralized and removed as a hazard” (Id. at p. 40). Similarly, Mr. Melton
explained that sulfur is neutralized, bonded with the oxidation and neutralized, and then
removed from a dangerous form. Id. The sulfur does not disappear. Id. Prior to working
at Miller, Mr. Melton worked for PSC and he testified that the degassing process he used
at PSC is identical to the process Miller used at Wood River in September 2018 (Id. at p.
Miller analyzed the results of the cleaning process employed to “make sure the
[hydrogen sulfide] is removed” (Doc. 139-2, p. 10). Melton further testified that he would
not expect hydrogen sulfide or sulfur dioxide to still be present in the column after the
cleaning process and that “operations verifies it and says that the [hydrogen sulfide] and
everything is removed, everything is good” (Id. at p. 11).
Ron Weisar worked for Phillips 66 for nearly 25 years and during that time worked
on various turnaround projects at Wood River (Doc. 132-2, p. 24). Mr. Weisar testified
that his role in turnaround projects focused on detailing the work scope for a particular
piece of equipment or vessel, as well as determining what equipment needed repairs and
how to repair the equipment. Id. He also acted as a coordinator and planner for the
turnaround, and is familiar with the V-18107 vessel. Id. Mr. Weisar testified that hydro
blasting involves using water at high pressure to blast away material and “help clean up
a piece of equipment or structure so that Phillips 66 can properly inspect it and perform
any necessary repair.” Id. One of the objectives of hydro blasting is to remove sulfates,
which in “a wet form are like mud and in dry form are like dust.” Id. The removal of mud,
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solids, or dusts containing sulfates occurs after a vessel, like V-18107, is degassed (Id. at
p. 25). Based on his experience, Weisar expects sulfates would be present inside a vessel
after the de-gassing and before hydro blasting takes place. Id.
Once a vessel, such as or similar to the V-18107, is tested and monitored, it is
opened to atmosphere (Id. at p. 26). After the vessel is opened, Phillips 66 uses air blowers
to move air through the tower to ensure a safe entry atmosphere within the tower. Id.
While air is being pumped into the vessel, Phillips 66 monitors the atmosphere inside the
vessel to ensure the process is progressing and to determine when the vessel will be ready
for entry (Id. at p. 27). Phillips 66 keeps a constant eye on the vessel to check for any smoke
or fumes and “starts keeping it wet.” Id. Per Mr. Weisar, it was Phillips 66’s expectation
that while some sulfates would be removed during the chemical cleaning process, others
would remain (Id. at p. 31).
Brett Haynes has worked at Miller as an MSS-SMC/Chemical Manager since May
2020 (Doc. 132-3, p. 1). Before joining Miller, Haynes worked for Hydrochem. Id. Haynes
is familiar with the de-gassing procedures used on vessels such as V-18107, and is familiar
with the processes Hydrochem used in 2018. Id.
With respect to the September 2018 turnaround at Wood River, Mr. Haynes
submitted an affidavit detailing that Miller’s scope of work was to degas the process
equipment of any volatile organic compounds, hydrogen sulfide, and light oils to allow
for maintenance and a final cleaning (Id. at p. 2). De-gassing, or decontamination, does
not mean a total cleaning of all scale and sludges, including scales and sludges that
contain sulfates. Id. Degassing likewise does not remove scale, sludges, and dusts from
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packing material, including Raschig rings. Id. Degassing, however, does remove
contamination that would prohibit the plan from conducting additional mechanical
cleaning methods was needed, including hydro blasting or vacuuming. Id.
Hydrochem’s teaching methods and instruction regarding degassing of columns
such as or similar to V-18107 recognize that degassing is not designed or intended to
remove sludges, dusts, or solids, but instead removes bad atmospheric gases such as
hydrogen sulfide and volatile organic compounds (Id. at p. 3). Further, within
Hydrochem’s Chemical Services Division, it was known and understood that the
degassing process is not intended or designed to remove sulfur containing solids,
materials of this type were to be removed via hydro blasting (Id. at p. 4). Hydrochem’s
degassing process, like Miller’s, is designed and intended to remove Hydrogen Sulfide
and volatile organic gasses so that the structure or equipment can be opened, entered,
and cleaned and a subsequent cleaning process, such as hydro blasting would be used to
remove solids, including dusts and sludges which contain sulfur (Id. at pp. 3-4). Like
Miller’s process, Hydrochem’s degassing process is designed to make a vessel or other
similar equipment “clear for entry” (Id. at p. 3).
In September of 2018, Hydrochem employed Jeff Reese as its integration manager
and his duties included integrating PSC’s operations into Hydrochem’s (Doc. 132-4, p. 5).
Reese also acted as Hydrochem’s overall manager for the Wood River turnaround (Id. at
p. 6). As overall manager, Reese coordinated Hydrochem’s activities which he describes
as “multiple industrial cleaning activities across multiple operating units that was [sic]
bound for the turnaround” (Id. at p. 7). Reese describes the E-Train as a “sulfur unit” but
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is unable to identify or provide even a general description of the E-Train unit’s purpose
and/or function. Id. Hydrochem provided a vacuum truck which was used to remove
packing material from the E-Train unit. Id. MIST employees used a hose attached to the
vacuum truck to remove the Raschig rings from the E-Train unit, including V-18107 (Id.
at p. 8).
With respect to V-18107, Reese had no discussions or communications with
anyone at Phillips 66 concerning the presence of combustible dust in the column once air
mover operations were commenced. (Id. at p. 13). As of September 15, 2018, Reese did not
believe a quench column specifically designed to remove sulfur from a petroleum
product would contain residual sulfur after it was degassed. (Id.). Reese concedes that he
“did not know the process” (Id. at p. 14).
September 15, 2018 Incident
The removal of the Raschig rings that Pursell and another MIST employee were
doing on September 15, 2018, was done with the expectation that the quench column had
been decontaminated and was free of hydrocarbons and pyrophoric, and that any iron
sulfides had been neutralized (Doc. 139-5). MIST employed 57 people per shift, including
Earl Pursell and Walter Ricks (Id. at p. 3). The V-18107 vessel Ricks and Pursell were
working on at the time of the explosion/fire, has twenty to twenty-four inch diameter
manway which Ricks and Pursell used to enter the vessel’s interior. (Doc. 132-6).
Ron Weisar, the Phillips 66 Day Shift Turnaround Coordinator for the E-Train
Sulfur Recovery Unit, testified that the expectation was that there would not be
significant combustible dust encountered after the cleaning process (Id. at p. 1; 14). There
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had never been an incident where there was any type of sulfur dust explosion from
vacuuming Raschig rings and Miller did not raise the potential for such an event (Doc.
139-6, p. 5). Weisar, therefore, signed off on the Entry Permit which did not reference
“fire/sparks” or “fire watch”, items which would have been referenced if combustible
dust were anticipated (Doc. 139-6, p. 6-8). He expected that Miller would remove most of
the sulfates or the solids from the tower (Id. at p. 11). Nor would Weisar expect SO2
(sulfur dioxide) and H2S (hydrogen sulfide) to be at levels outside of safe limits when
workers were going to be inside V-18107 (Id. at p. 13). Weisar admitted that an area may
be determined safe to enter, but the activity may disturb “a pocket of gas.” Id.
Ricks and Pursell used an unbonded plastic hose to vacuum the packing material,
also known as Raschig rings from V-18107. (Doc. 132-5, p. 5). The packing material or
Raschig rings were stacked eight foot high in the vessel and Pursell and Ricks had
removed between three to four feet of the rings from the vessel before the explosion/fire
occurred (Id. at p. 6). Ricks estimates it took three to four hours to remove the three to
four feet of rings/packing material from the vessel (Id. at pp. 7-8). Ricks and Pursell wore
Hydrogen Sulfide monitors and neither of which went off or otherwise activated prior to
the explosion/fire (Id. at p. 19). While Ricks was inside the vessel he detected a “small
hint of a sulfur smell” but that sensation did not cause him any alarm as it is not
uncommon to smell or note a “small hint of sulfur” (Id. at pp. 18-19).
Ricks observed a fireball exit the vacuum hose and enter the vessel. He heard a
sound comparable to shotgun going off, followed by a fire exiting the end of the hose. (Id.
at p. 22). The vacuum hose, in Ricks’ words, “choked down and just spit a big ball of fire
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out of it.” Id. While he was vacuuming the packing material, Earl Pursell did not detect
or observe any dust accumulation in V-18107. (Doc. 132-7, p. 4). Pursell’s H2S alarm
buzzed and blinked following the explosion, but not before. (Id. at p. 2).
Back in June of 2018, Hydrochem would use bonded hoses to remove packing
material from a quench column such as V-18107 when it “knew of a known combustible
material” as is stated in Hydrochem’s policy (Doc. 132-4, p. 14). Reese did not ask Phillips
66 to provide documentation or material concerning the chemical cleaning process that
was to be performed before Hydrochem commenced its air mover operations on the ETrain unit, including V-18107 and did not request MDS sheets (Id. at p. 20). Reese
acknowledges that elemental sulfur - assuming it’s not exposed to electricity or a certain
type of flame source, will not burst into flame, smolder or catch fire as it is not “selfexploding” (Id. at p. 28). Reese acknowledges that he knew as of September of 2018 that
sulfur was a combustible dust but in planning Hydrochem’s work on this turnaround
did not reach out to Hydrochem’s Chemical Treatment Division to discuss potential
hazards associated with removing packing material from a sulfur quench tower such as
V-18107 (Id. at 110).
Reese was familiar with Phillips 66’s policies regarding safe vacuum truck
operations, and acknowledges those policies apply to Hydrochem’s operations at Wood
River. He was also aware of Phillips 66 policies which state, “all vacuum trucks and
hydro-excavation trucks must be grounded and hoses bonded at all times while loading
or unloading any material including hydrocarbon or flammable/combustible materials”
and “the movement of liquid or dry material through flexible hoses has the potential to
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generate static sparks which is capable of igniting flammable material or vapors.” (Id. at
Phillips 66 Incident Report + After Incident reports
Per an internal incident investigation report prepared by Phillips 66, the fuel that
caused the explosion, which resulted in the respiratory exposure incident suffered by
Pursell, was combustible sulfur dust (Doc. 139-12). Per XRF data gathered by Phillips 66
regarding the Raschig rings gathered from V-18107 following the incident, the residual
particulate covering the Raschig rings was more than 40% sulfur and more than 10% iron,
the two main components of iron sulfide (Doc. 139-13). Dust with greater than 25 percent
sulfur has the propensity for ignition or explosion (Doc. 139-11, p. 12).
Hydrochem’s Expert Report and Findings
Hydrochem’s expert, Russell Ogle, Ph.D., found that the V-18107 was packed with
hydrocarbon and pyrophoric-contaminated Raschig rings (Doc. 139-15, p. 30; Doc. 13914, pp. 2-3; Doc. 139-11, pp. 3-4). Furthermore, the Phillips 66 incident investigation
observed a residue on the Raschig rings and determined that it was a combination of
metal sulfides, but principally iron sulfide based on chemical analysis (Doc. 139-12).
Aside from sulfur-containing residue on the Raschig rings, no other credible condensedphase fuels were identified in Phillips 66’s investigation or otherwise. “[V]arious gas
monitoring devices recorded concentrations of sulfur-containing gases” (Doc. 139-15, p.
35). Low concentrations of hydrogen sulfide were also recorded (Id. at pp. 36-40).
Summary judgment must be granted “if the movant shows that there is no genuine
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dispute as to any material fact and the movant is entitled to judgment as a matter of
law.” FED. R. CIV. P. 56(a); see also Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986); Spath
v. Hayes Wheels Int'l-Ind., Inc., 211 F.3d 392, 396 (7th Cir. 2000). The Court must construe
the evidence in the light most favorable to the nonmoving party and draw all reasonable
inferences in favor of that party. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255
(1986); Chelios v. Heavener, 520 F.3d 678, 685 (7th Cir. 2008); Spath, 211 F.3d at 396.
The initial summary judgment burden of production is on the moving party to
show the Court that there is no reason to have a trial. Celotex, 477 U.S. at 323; Modrowski
v. Pigatto, 712 F.3d 1166, 1168 (7th Cir. 2013). If the moving party bears the burden of
persuasion on an issue at trial, it must “lay out the elements of the claim, cite the facts
which it believes satisfies these elements, and demonstrate why the record is so one-sided
as to rule out the prospect of a finding in favor of the non-movant on the claim.” Hotel 71
Mezz Lender LLC v. National Ret. Fund, 778 F.3d 593, 601 (7th Cir. 2015); accord Felix v.
Wisconsin Dep't of Transp., 828 F.3d 560, 570 (7th Cir. 2016). Where the moving party fails
to meet that strict burden, the Court cannot enter summary judgment for that party even
if the opposing party fails to present relevant evidence in response. Cooper v. Lane, 969
F.2d 368, 371 (7th Cir. 1992).
In responding to a motion for summary judgment, the nonmoving party may not
simply rest upon the allegations contained in the pleadings, but must present specific
facts to show that a genuine issue of material fact exists. Celotex, 477 U.S. at 322–
26; Anderson, 477 U.S. at 256–57; Modrowski, 712 F.3d at 1168. A genuine issue of material
fact is not demonstrated by the mere existence of “some alleged factual dispute between
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the parties,” Anderson, 477 U.S. at 247, or by “some metaphysical doubt as to the material
facts.” Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). Rather, a
genuine issue of material fact only exists if “a fair-minded jury could return a verdict for
the [nonmoving party] on the evidence presented.” Anderson, 477 U.S. at 252.
The Illinois Contribution Act provides that, “[W]here 2 or more persons are
subject to liability in tort arising out of the same injury to [the plaintiff], ... there is a right
of contribution among them, even though judgment has not been entered against any or
all of them.” Sherwood v. City of Chicago, No. 19 C 6605, 2020 WL 777258, at *3 (N.D. Ill.
Feb. 18, 2020) (citing 740 ILL. COMP. STAT. 100/2). The present matter is a third-party
action brought by Hydrochem against Miller based on negligence. “To state a cause of
action for negligence, a complaint must allege facts that establish the existence of a duty
of care owed by the defendant to the plaintiff, a breach of that duty, and an injury
proximately caused by that breach.” Simpkins v. CSX Transp., Inc., 965 N.E.2d 1092, 1096
(Ill. 2012) (internal citations omitted).
Miller contends that Hydrochem cannot prove the essential elements of its
contribution claim for negligence (duty, breach of duty, and causation) and thus
summary judgment is warranted (Doc. 132, p. 10). According to Miller, Hydrochem’s
central theory is that Miller left behind solids in the vessel in question, which caused the
explosion that resulted in Plaintiff’s injuries. But according to Miller, it never had a duty
to remove solids and solids containing sulfur specifically; rather, its duty was limited to
degassing the vessel in question (Id.). In fact, Miller argues that it was Hydrochem’s role
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to neutralize iron sulfide and oxide pyrophoric materials (Id. at p. 11).
Hydrochem argues that Miller owed a duty to make V-18107 safe for workers
providing the next step in the turnaround process to bring the SRU back online by
neutralizing iron sulfides and oxidize residual hydrocarbons and pyrophoric material
through a hybrid decontamination process (Doc. 139, pp. 14-15, citing Doc. 139-4).
Furthermore, Hydrochem argues Miller had a duty to identify ignitable material that
could remain in the column and notify Phillips 66, as well as other personnel (Doc. 139,
p. 15). Miller filed a reply brief, arguing that Hydrochem submitted inadmissible
evidence (e.g., inadmissible hearsay, lack of foundation, and speculation/conjecture) and,
ultimately, Hydrochem’s arguments relating to duty and breach still fail. The Court first
turns to whether Miller owed a duty and, if so, the parameters of that duty.
Miller argues that Hydrochem’s amended complaint refers to contractual duties
as the basis for its claim against Miller (Doc. 132, p. 11). But Miller takes umbrage with
this position, as Hydrochem fails to “identify a contract, agreement or proposal and does
not allege or otherwise identify a specific contractual provision…[to] describe the nature,
extent and scope of the putative duty it would place on Miller” (Doc. 132, p. 11). But if
Hydrochem is referring to Miller’s proposal as the basis for liability, Miller argues that
the proposal outlines that the scope of the duty was limited to degassing the vessel only,
which Miller did (Id. at pp. 10-11). Specifically, Miller was hired to “ensure the sulfur ETrain unit equipment, including V-18107, was properly degassed with a chemical
decontamination package” (Doc. 132-1).
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Hydrochem argues that Miller had a duty to remove or neutralize pyrophoric
materials and iron sulfides and that had Miller succeeded in this, “there is no possibility
that Pursell would have been injured” (Doc. 139, p. 16). Hydrochem also says that the
record makes clear Miller had a duty to make V-18107 safe for workers before they
continued the next step in the turnaround process (Id. at p. 14).
Whether or not a duty exists is a question of law. Baroni v. Viox Servs., Inc., No. 11
C 3738, 2014 WL 3805745, at *4 (N.D. Ill. July 30, 2014) (citing Adams v. N. Ill. Gas Co., 809
N.E.2d 1248, 1257 (Ill. 2004)). For negligence in Illinois, a plaintiff must establish that the
“defendant owed a duty of care, that the defendant breached that duty, and that the
plaintiff incurred injuries proximately caused by the breach.” Sears, Roebuck & Co. v. Tyco
Fire Prod. LP, 833 F. Supp. 2d 892, 906 (N.D. Ill. 2011) (citing Johnson v. Wal–Mart Stores,
Inc., 588 F.3d 439, 441 (7th Cir.2009) (quoting Espinoza v. Elgin, Joliet & E. Ry. Co., 649
N.E.2d 1323, 1326 (Ill. 1995)). Where the negligence action is based on a contractual
obligation, the scope of the duty is determined by the contract terms. ExxonMobil Oil Corp.
v. Amex Constr. Co., 702 F.Supp.2d 942, 970 (N.D. Ill. 2010) (citing Melchers v. Total Elec.
Constr., 723 N.E.2d 815, 818 (Ill. App. Ct. 1999)); see also Dyduch v. Crystal Green Corp., 582
N.E.2d 302, 306 (Ill. App. Ct. 1991).
Despite Miller’s criticism of this argument, and Hydrochem’s failure to point to a
contract detailing Miller’s duty, both parties seem to argue that the Court must look to
Miller’s proposal to determine the scope of its duty. The parties cite to two main cases in
support of their positions—Bray and Pasquinelli. In Bray, the Court analyzed whether a
counter-defendant to the City of Chicago had a contractual duty to maintain a sidewalk
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where the plaintiff fell and was injured. Bray v. City of Chicago, 2022 IL App (1st) 201214,
¶ 30. The court analyzed the contract and found there was some evidence from which a
jury could conclude that the counter-defendant owed plaintiff a duty of care to maintain
the sidewalk in a safe way, breached that duty, and the breach was the proximate cause
of her injuries. Id. at ¶ 40.
In Pasquinelli, the estate of an elderly married couple sued the company they hired
to take care of the couple after the couple died due to complications from carbon
monoxide poisoning after the husband left his car running in the attached garage for
many hours. The estate argued that the caretaking company owed the couple a
“common-law duty of care due to its ‘specialize knowledge in caring for elderly clients
reliant on [Comfort Keepers] for their safety’.” Pasquinelli v. Sodexo, Inc., 193 N.E.3d 836,
845 (Ill. App. Ct. 2021). Ultimately, the court found that the caretaking company did not
owe the aforementioned common-law duty of care to the couple because the couple and
their caregiver had a contract for their care; therefore, the scope of duty was determined
by the terms of the contract and the duties could not be expanded beyond the scope of
the contract. Id. at 846. Both Bray and Pasquinelli demonstrate that when a contract is in
play, the Court must look to the terms of the contract to analyze whether there is a duty
and the parameters of that duty.
With these cases in mind, the Court first turns its attention to the language
contained in Miller’s proposal and procedure. The proposal outlines the work that Miller
planned to do at the Wood River site. “The Clean Sweep™ 2000X is an exceptionally high
performing chemistry used at a very low concentration in water/steam to internally clean
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and decontaminate the refinery process equipment” (Doc. 139-1, p. 10). The Sulfur Unit
E-Train Decontamination Procedure outlines that the Clean Sweep™ 2000X “will
neutralize iron sulfides and oxidize residual hydrocarbons and pyrophoric material
through a hybrid decontamination process” (Doc. 139-4, p. 2). The process of injecting
Clean Sweep™ 2000X would continue “at a steady rate until the system is deemed
hydrocarbon and pyrophoric free,” as well as circulating liquid in the bottoms of V-18107
“to remove any hydrocarbon and pyrophoric material in the system” (Id. at pp. 2-3).The
procedure further indicates that Miller would “monitor the waste from the bottom of the
vessel to verify the presence of cleaning solution” and that Miller had the option of either
verifying through “visual testing” or through “analytical testing” at the drain header (Id.
at p. 6). Ultimately, Miller was hired to remove the hydrogen sulfide from the system
through the use of Clean Sweep™ 2000X in order for the system to be opened up and
repaired (Doc. 139-2, pp. 5-6). Before moving onto the next step in the process, Miller
provided Phillips 66 with a final sample. Id. at pp. 18-19. Phillips 66 also performs gas
checks on the overhead of the vessel to ensure hydrogen sulfide is removed from the
Based on the documents before the Court, Miller was responsible for degassing
the vessel and removing and/or neutralizing hydrocarbon and pyrophoric material as
well as iron sulfides so that the next step in the decontamination process could occur.
Furthermore, the proposal details that safety is “the single most important thing we do
every day—it is the number one priority at Miller Environmental” (Doc. 139-1, p. 4).
Hydrochem has presented more than sufficient factual basis demonstrating that Miller
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had a duty to decontaminate V-18107 and make it safe per its own procedural documents,
and the understandings of the parties to the agreement. As such, the Court moves onto
whether Miller is entitled to summary judgment based on proximate cause.
Miller further argues that Hydrochem cannot establish that Miller’s breach of its
duty was the proximate cause of Plaintiff’s injuries either (Doc. 132, pp. 11-12). Simply
put, Miller argues that the incident, alone, is not proof that Miller proximately caused the
incident. Miller argues that Hydrochem has failed to submit evidence that the circulation
of Clean Sweep™ 2000X was not performed or that testing to support that
decontamination was also not performed (Id. at p. 13). Furthermore, Miller says
Hydrochem only submits inadmissible hearsay statements offered “by alleged
witnesses,” including Whiddon, Call, Ketcham, and Jarett. Miller contends these
individuals do not have personal knowledge as to the work Miller performed (Id. at p.
14). Lastly, Miller argues that Hydrochem’s expert, who believes “the incident and Mr.
Pursell’s injuries were caused by [Miller]’s failure to adequately decontaminate the
column,” is unqualified and his testimony and opinion are inadmissible because they do
not meet the requirements of Daubert or Rule 702 (Doc. 132, p. 15). Miller filed a reply
brief as well, in which it reiterated its argument that the only support in the record for
Hydrochem’s position is “inadmissible hearsay,” which the Court should not consider in
its analysis (Doc. 147, citing to Docs. 139-7, 139-8, 139-9, and 139-10).
As an initial matter, “a court may only consider admissible evidence in assessing
a motion for summary judgment. Gunville v. Walker, 583 F.3d 979, 985 (7th Cir. 2009). In
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both the initial motion and the reply brief, Miller does not explain how certain
depositions are inadmissible hearsay and the Court declines to make those arguments for
Miller. See Mulvania v. Sheriff of Rock Island Cty., 850 F.3d 849, 860 (7th Cir. 2017) (citing
Vaughn v. King, 167 F.3d 347, 354 (7th Cir. 1999) (“It is not the responsibility of this court
to make arguments for the parties.”))). Without a proper objection that Whiddon, Call,
Ketcham, and Jarett’s testimony cannot be presented in any admissible form, the Court
finds this testimony to be competent summary judgment evidence creating a genuine
issue of material fact for trial. See Lewandowski v. City of Milwaukee, 823 F. App'x 426, 428–
29 (7th Cir. 2020) (noting that a district court “cannot consider inadmissible hearsay, over
proper objections, in deciding summary judgment”) 1 (emphasis added). If a jury were to
credit the deposition testimony presented by Hydrochem, it could reasonably find that
Hydrochem’s version of the events were true.
Even if this testimony were disregarded, Miller still would not be entitled to
judgment as a matter of law, as there is additional evidence in the record to support a
jury finding in favor of Hydrochem. Miller argues that Hydrochem’s expert cannot be
considered because his report and testimony do not meet the requirements of Daubert
and Rule 702. But this Court previously found those arguments to be unavailing in its
October 21, 2022 Order (Doc. 168). “A district court’s decision to exclude expert testimony
is governed by Federal Rules of Evidence 702 and 703, as construed by the Supreme Court
See also Cohn v. Wexford Health Sources, Inc., No. 3:19-CV-00376-NJR, 2022 WL 2802304, at *6 (S.D. Ill. July
18, 2022) (noting that the party seeking exclusion of testimony as hearsay had failed to argue that the
testimony could not be presented in a form that would be admissible in evidence).
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in Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469
(1993).” Brown v. Burlington Northern Santa Fe Ry. Co., 765 F.3d 765, 771 (7th Cir. 2014).
Ultimately, the Court found that Mr. Ogle would be permitted to testify and that his
opinions and testimony could not be excluded, as he is qualified to provide his opinions
on the very technical subject matter (Doc. 168, p. 7). The Court will not reiterate its
reasoning here as to why Mr. Ogle’s opinion is admissible.
Now turning to proximate cause, “[t]he term ‘proximate cause’ [under Illinois law]
encompasses two distinct requirements: cause in fact and legal cause.” City of Chicago v.
Beretta U.S.A. Corp., 821 N.E.2d 1099, 1127 (Ill. 2004). In determining whether a plaintiff
has established cause in fact, the Court asks, “whether the injury would have occurred
absent the defendant's conduct.” Id. “The second requirement, legal cause, is established
only if the defendant's conduct is so closely tied to the plaintiff's injury that he should be
held legally responsible for it.” Id. (internal citation omitted). ExxonMobil Oil Corp., 702 F.
Supp. at 964–65.
Miller was hired to decontaminate gases and vapors from the V-18107 vessel,
which included removing and/or neutralizing iron sulfides and hydrogen sulfide (Doc.
139-2, pp. 5-6; 132-1, p. 16). Specifically, Clean Sweep™ 2000X “will neutralize iron
sulfides and oxidize residual hydrocarbons and pyrophoric material through a hybrid
decontamination process” (Doc. 139-4, p. 2). An internal incident investigation report
prepared by Philipps 66 stated that the fuel that caused the explosion was combustible
sulfur dust (Doc. 139-12). Hydrochem’s expert, Russell Ogle, Ph.D., found that the V18107 was packed with hydrocarbon and pyrophoric-contaminated Raschig rings (Doc.
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139-15, p. 30; Doc. 139-14, pp. 2-3; Doc. 139-11, pp. 3-4). Furthermore, the Phillips 66
incident investigation observed a residue on the Raschig rings and determined that it was
a combination of metal sulfides, but principally iron sulfide based on chemical analysis
(Doc. 139-12). Miller may argue that any residue qualifies as “solids” for which they are
not responsible. But Hydrochem also put forth deposition testimony that had Miller
adequately decontaminated the column, it would have eliminated the presence of fuel
within the column (Doc. 139-15, p. 42 (“Had all of the iron sulfide and other sulfur
compounds been fully oxidized by Clean Sweep™ 2000X, no flammable sulfur
compounds or sulfur-containing combustible dust would have remained. The presence
of this fuel is proof that ME failed to adequately decontaminate the column”; See also Doc.
139-11, p. 13 (stating that one of the goals of decontamination was to eliminate iron sulfite
and that per the lab analysis, iron sulfite and elemental Sulphur were both identified on
the dust from the Raschig rings)). Hydrochem also put forth evidence that, per Miller’s
proposal and procedure, Miller was supposed to recirculate the Clean Sweep™2000X
solution, but this was not completed, performed, and/or there is no record of this being
performed (Doc. 139-15, p. 42). Additionally, Hydrochem’s expert opined that “analytical
testing to confirm that the column had been decontaminated was apparently not
performed” (Doc. 139-15, p. 42). Ultimately, Mr. Ogle has opined that Mr. Pursell’s
injuries were caused by Miller’s failure to adequately decontaminate the column (Id. at p.
There is evidence in the record that materials Miller was hired to neutralize and/or
remove certain materials from the vessel and these materials were still present after the
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incident. Miller argues that these solid substances were not part of their work to
decontaminate the vessel, but ultimately, this argument, and the evidence supporting it,
are not for this Court to weigh at this time. Hydrochem and Miller offer two very different
stories as to what exactly happened to cause the explosion that injured Mr. Pursell.
Simply put, this dispute cannot be resolved at the summary judgment stage and the
motion for summary judgment will be denied.
For the aforementioned reasons, Miller’s motion for summary judgment (Doc. 131)
is DENIED. This matter remains set for an in-person status conference on November 30,
2022 at 10:30 a.m.
IT IS SO ORDERED.
DATED: November 21, 2022
/s/ Mark A. Beatty
MARK A. BEATTY
United States Magistrate Judge
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