Knight v. Henderson International Technologies, Inc. et al
Filing
120
ORDER & REASONS granting in part and denying in part Atlas Copcos 102 Motion for Summary Judgment as stated herein. FURTHER ORDER granting Servomexs 96 Motion for Summary Judgment. The plaintiffs claims against Servomex are DISMISSED WITH PREJUDICE. Signed by Judge Martin L.C. Feldman on 3/16/2016. (caa)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
SIMON KNIGHT
CIVIL ACTION
V.
NO. 14-2307
HENDERSON INTERNATIONAL
TECHNOLOGIES INC., ET AL.
SECTION "F"
ORDER AND REASONS
Before the Court are two motions for summary judgment: one
brought by defendant Atlas Copco Compressors, LLC, individually
and on behalf of Henderson International Technologies, Inc.; and
the other brought by Servomex Company, Inc. Both motions seek
summary relief on the plaintiff, Simon Knight’s, claims under the
Louisiana
Products
Liability
Act.
For
the
following
reasons,
Atlas’ motion is GRANTED as to the plaintiff’s negligence claim
and DENIED as to the plaintiff’s claims under the LPLA. Servomex’s
motion is GRANTED.
Background
This personal injury action arises from an explosion of a
helium compressor that caused a flying object to pierce a hole
through the plaintiff’s ankle.
Knight initially brought suit against numerous defendants who
manufactured and serviced the compressor and its component parts.
Two defendants remain: Atlas Copco Compressors, LLC (sometimes
referred to as Henderson) and Servomex Company, Inc. Both move for
1
summary judgment urging that the plaintiff’s claims under the
Louisiana Products Liability Act fail as a matter of law.
The accident occurred while the plaintiff, Simon Knight, was
working
for
Louisiana.
AirGas
Knight
Inc.
was
at
a
compressor
responsible
for
station
filling
near
Houma,
cylinders
with
various gases. While Knight was performing his duties, a large
compressor in the AirGas facility exploded sending a piece of
shrapnel
through
his
ankle.
Knight
has
undergone
extensive
surgeries including a fusion of his ankle. He has, however, been
able to return to employment.
AirGas
owned
the
compressor
that
exploded.
Henderson,
however, manufactured it. Henderson delivered the compressor to an
AirGas facility in Ohio. Sometime later, AirGas disassembled the
compressor and moved it to its facility in Houma, Louisiana, where
AirGas reassembled it. Henderson contends that AirGas disassembled
and reassembled the compressor without consulting or informing
Henderson.
In
2009,
compressor
for
AirGas
blended
contacted
gases.
Henderson
Henderson
about
initially
using
the
sold
the
compressor to AirGas for use with pure helium; however, AirGas
wanted to use it to compress heliox, a mixture of helium and
oxygen.
Henderson
consulted
with
AirGas
to
make
necessary
modifications to the compressor and to determine the maximum ratio
of oxygen for safe operation.
2
In order to produce heliox, AirGas needed a blending unit in
addition to the compressor. The blending unit is a complex machine
with multiple layers of equipment. Two components of the blending
machine are pertinent here. The first component is an oxygen purity
analyzer
designed
and
manufactured
by
Servomex.
The
analyzer
measures the ratio of oxygen in the gas blend. The second component
is a static blender. The static blender consists of a panel with
two knobs which are operated and monitored by an AirGas employee
called a pumper. The knobs adjust the volumes of oxygen and helium
to
be
mixed.
A
computer
screen
displays
various
gauges
and
information, including the ratio of oxygen determined by the
Servomex analyzer.
The compressor had a maximum oxygen tolerance of 18 percent.
If the oxygen level exceeded 18 percent, the Servomex device was
designed to automatically shut down the compressor. Nearly a month
before the explosion, AirGas sent the analyzer to Servomex for
repair. According to the AirGas pumper, Robert Adams, the analyzer
reading was not displaying correctly on the computer screen. AirGas
employees detached the analyzer and sent it to Servomex. Upon
return days later, AirGas employees reinstalled the analyzer.
After the explosion, some AirGas employees stated in depositions
that they believed the input and output wires were reversed on the
Servomex analyzer causing the blending unit to read the percentages
of oxygen backwards. The plaintiff submits photos of the wires
3
that show the wire labeled as number 1 is connected to port number
2, and vice-versa. The plaintiff believes this may have caused the
explosion.
Notably, it was AirGas who designed the blending unit. Derek
Camp, an AirGas engineer and corporate representative, wrote the
operator’s manual for the blending unit. Camp trained AirGas
employees on how to use the blending unit. He performed startup
testing
and
made
modifications
to
the
blending
unit
and
the
compressor. Henderson contends that it was not consulted during
any part of this process.
Both Henderson and Servomex submit that the plaintiff has
failed to establish sufficient evidence to show that either was
responsible for the explosion. Henderson contends that the cause
of the explosion was twofold: the crossed wires of the Servomex
analyzer and/or operator error by AirGas’ pumper, Robert Adams.
Servomex urges that the AirGas employees’ statements claiming the
analyzer’s wires were reversed are inadmissible hearsay. Servomex
contends that there has been no substantial inspection of its
device that links it to the cause of the accident. For these
reasons, the defendants seek summary dismissal of the plaintiff’s
claims.
I.
Federal Rule of Civil Procedure 56 instructs that summary
judgment is proper if the record discloses no genuine dispute as
4
to any material fact such that the moving party is entitled to
judgment as a matter of law. No genuine dispute of fact exists if
the record taken as a whole could not lead a rational trier of
fact to find for the non-moving party. See Matsushita Elec. Indus.
Co. v. Zenith Radio., 475 U.S. 574, 586 (1986). A genuine dispute
of fact exists only “if the evidence is such that a reasonable
jury could return a verdict for the non-moving party.” Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).
The Court emphasizes that the mere argued existence of a
factual dispute does not defeat an otherwise properly supported
motion. See id. Therefore, “[i]f the evidence is merely colorable,
or
is
not
appropriate.
significantly
probative,”
summary
Id. at 249-50 (citations omitted).
judgment
is
Summary judgment
is also proper if the party opposing the motion fails to establish
an essential element of his case.
477 U.S. 317, 322-23 (1986).
See Celotex Corp. v. Catrett,
In this regard, the non-moving party
must do more than simply deny the allegations raised by the moving
party.
See Donaghey v. Ocean Drilling & Exploration Co., 974 F.2d
646, 649 (5 Cir. 1992). Rather, he must come forward with competent
evidence, such as affidavits or depositions, to buttress his claim.
Id. Hearsay evidence and unsworn documents that cannot be presented
in a form that would be admissible at trial do not qualify as
competent opposing evidence. Martin v. John W. Stone Oil Distrib.,
Inc., 819 F.2d 547, 549 (5 Cir. 1987); Fed. R. Civ. P. 56(c)(2).
5
Finally, in evaluating the summary judgment motion, the Court must
read the facts in the light most favorable to the non-moving party.
Anderson, 477 U.S. at 255.
II.
The plaintiff’s claims against both defendants arise under
the Louisiana Products Liability Act. The LPLA establishes the
“exclusive theories of liability for manufacturers for damage
caused by their products.” La. R.S. § 9:2800.52. “Manufacturer” is
defined broadly to include one who influences the design of a
product
or
incorporates
into
the
product
a
component
part
manufactured by another manufacturer. La. R.S. § 9:2800.53. The
plaintiff has the burden of proof to show: 1) the defendants are
manufacturers of products; 2) a characteristic of their products
proximately
caused
reasonably
anticipated
characteristic
that
his
injury;
use
of
caused
his
3)
the
the
injury
product;
injuries
was
arose
and
from
4)
a
the
“unreasonably
dangerous.” See La. R.S. § 9:2800.54.
There are only four ways in which a plaintiff can show that
a product was “unreasonably dangerous.” He must show either that
it was unreasonably dangerous: 1) in construction or composition;
2) in design; 3) due to an inadequate warning; or 4) due to breach
of an express warranty. See La. R.S. § 9:2800.54(B). The meaning
of “unreasonably dangerous” differs slightly in the context of
each theory of liability.
6
A
product
is
unreasonably
dangerous
in
construction
or
composition if, at the time it leaves the manufacturer’s control,
it
deviates
in
a
material
way
from
the
manufacturer’s
specifications for otherwise identical products. See La. R.S. §
9:2800.55. A product is unreasonably dangerous in design if, at
the time it leaves the manufacturer’s control, there exists an
alternative design for the product capable of preventing the injury
and
such
alternative
would
not
be
over
burdensome
on
the
manufacturer. See La. R.S. § 9:2800.56. A product is unreasonably
dangerous due to an inadequate warning if the product possesses a
characteristic that may cause damage and the manufacturer fails to
use
reasonable
care
to
provide
adequate
warning
of
such
characteristic. See La. R.S. § 9:2800.57. A product is unreasonably
dangerous for failing to comply with an express warranty if the
warranty
induced
the
plaintiff
to
use
the
product
and
the
untruthfulness of the warranty was the proximate cause of his
injuries.
See
La.
R.S.
§
9:2800.58.
The
plaintiff
sues
both
defendants under all four theories.
III.
Henderson claims that the plaintiff has failed to carry his
burden
to
produce
evidence
showing
how
the
compressor
was
unreasonably dangerous or the proximate cause of his injuries. In
support, Henderson relies on testimony of AirGas employees who
claim that the input and output wires were reversed on the Servomex
7
analyzer. Additionally, Henderson contends that the pumper, Robert
Adams, who was operating the blending unit at the time of the
explosion
was
inexperienced.
Adams
admitted
in
deposition
testimony that he had never read the operator’s manual for the
compressor and was unaware of periodic maintenance requirements.
Adams also stated that he was unfamiliar with how the equipment
worked. Henderson asserts that the only two plausible explanations
for the explosion are operator error and/or the reversal of the
wires on the Servomex analyzer.
The plaintiff submits that, shortly after the blending unit
came online, the compressor began emitting loud and unusual noises.
AirGas contacted Henderson and Henderson sent a representative,
Ron Norton, to address the problem. Norton determined that he
needed to lengthen the springs for the valves on the fourth and
fifth stages of the compressor. Derek Camp, the AirGas engineer
and
corporate
representative,
testified
that
he
relied
on
Henderson to fix the problems with the compressor. The plaintiff’s
experts have determined that the fourth and fifth stages of the
compressor caused the explosion. The plaintiff faults Norton’s
repairs.
Additionally,
the
plaintiff
points
to
emails
between
Henderson employees and a third party in which they discussed the
possible corrosive effect on the valves of the AirGas compressor
due to the introduction of oxygen. The plaintiff submits that
8
Henderson knew of the potential for corrosion and failed to warn
AirGas despite many opportunities to do so. The plaintiff contends
that
AirGas
compressor
According
relied
could
to
on
be
the
Henderson’s
used
for
plaintiff,
representations
blended
Henderson
gas
that
containing
never
the
oxygen.
communicated
its
knowledge of oxygen’s potential corrosive effects on the valves.
Moreover,
Shelton,
found
the
plaintiff’s
after
expert
performing
metallurgist,
destructive
testing
Dr.
Tom
that
the
fourth and fifth stage inlet and outlet valves on the compressor
were eroded and leaking at the time of the incident. He opined
further that the “material used to fabricate the check valves was
not suitable for the environment, pressure, temperature, and flow
rates experienced in the fourth and fifth stage cylinders.” He
advised that alternative metals would have been more suitable under
the conditions in which the compressor was being used.
In short, the record is rampant with substantial issues of
material fact. For example, it is unclear whether the repairs made
to the compressor by Henderson’s employee contributed to the
explosion. It is also uncertain as to when Henderson knew of the
corrosive effects of introducing oxygen to the compressor and
whether it communicated that knowledge to AirGas. Equally unclear
is whether the compressor was designed with materials to adequately
withstand the introduction of oxygen, and whether corrosion played
a role in causing the explosion. Such factual determinations must
9
be made by the jury. Atlas Copco’s motion for summary judgment is
denied. 1
IV.
Servomex, however, submits that the plaintiff has failed to
produce any competent evidence to show how a characteristic of the
Servomex
dangerous.
device
It
caused
contends
the
that
explosion
the
AirGas
or
was
unreasonably
employees’
deposition
testimony claiming that the connections on the Servomex machine
were
somehow
reversed
is
inadmissible
hearsay.
The
plaintiff
stated in his deposition that he was told by the pumper, Robert
Adams, that the connections, or modules, on the Servomex device
were backwards. In turn, Adams testified that Derek Camp told him
that the wires on the analyzer were mislabeled. Similarly, another
AirGas witness, B.G. Colley, testified that Derek Camp told him
that the inlet and outlet monitoring connections had been switched
on the Servomex analyzer. So, clearly, someone told someone who
told someone. All of this testimony is classic hearsay based on
the alleged statements of Derek Camp.
When questioned about his colleague’s testimony, Derek Camp
did not recall any conversations with Adams or Colley about the
Servomex modules being switched. Indeed, when asked whether he
thought that switching the modules would have an effect on the
1
Both sides in this dispute seem to have a substantial litigation
risk of success.
10
system, Camp stated, “If you switch the modules – you have a sample
1, sample 2. Sample 1 was being taken from the inlet of the
compressor, sample 2 from the outlet. Sample 1 was the sample that
was to secure the oxygen supply, close that valve. So if sample 2
were switched with 1, it should not have had any effect at all
because those are both zeroed and spanned identically.” Further,
Camp denied ever investigating whether the modules on the Servomex
device had been switched.
The plaintiff’s theory of liability is that the wires attached
to the Servomex device are reversed in the photographs because
Servomex improperly
switched
the
modules
on
the
back
of
the
analyzer while conducting repairs. Allegedly, reversing the wires
was necessary because the modules were reversed. But this theory
rests entirely on Colley and Adams’ indirect testimony that Derek
Camp told them that the modules had been switched. Camp does not
recall making those statements, and he denies ever reversing the
wires. To the contrary, he testified that the modules on the
Servomex device were “zeroed and spanned identically,” and that
switching the modules would have no effect on the system.
Servomex offers an affidavit of its supervisor, Nathan Gomez,
who oversaw the repairs of the analyzer. Gomez stated with firsthand knowledge that the “two oxygen purity transducers in the
Servomex
Analyzer
are
identical
in
their
manufacture
and
function.” Moreover, he claimed, “The oxygen measuring cells were
11
replaced – not switched – with new oxygen measuring cells, and the
oxygen purity transducers were not moved and none of the internal
wiring or tubing was altered during the service on September 11,
2013.” The plaintiff responds with mere speculation.
Absent the hearsay testimony of Adams and Colley, the plaintiff
has no admissible competent evidence. First, he has the photos
showing that the wires on the Servomex device were reversed. Yet,
the plaintiff admits that AirGas employee B.G. Colley reinstalled
the Servomex device after it was repaired. It is undisputed that
Colley reattached the wires that are depicted in the photograph.
Accordingly, if the wires were reversed, it was not the fault of
Servomex.
The plaintiff’s remaining evidence consists of expert reports
speculating that an introduction of oxygen to the system might
have caused the explosion. The plaintiff’s expert engineer, Fred
Liebkemann, found that reversing the wires “might result in out of
tolerance blended gas being sent to fill rather than vent, but
only during transient conditions (while the operator is balancing
the flows by adjusting the regulators).” Adams testified, however,
that he was looking at the display screen at the time of the
explosion, not adjusting the regulators on the static blender.
Finally, the plaintiff submits an untimely supplemental brief
in which he offers a new expert report finding that the reversed
wires, again might have caused the explosion. Absent any evidence
12
of an unreasonably dangerous characteristic in Servomex’s product,
however, this speculative finding does not attach liability to
Servomex.
The
plaintiff’s
only
remaining
contention
is
that
the
Servomex device was never repaired properly, and the same defect
that existed when AirGas returned the analyzer to Servomex caused
the explosion. Again, the plaintiff offers no competent evidence
to support his theory. The plaintiff submits that the pumper,
Robert Adams, was “waiting for the Servomex unit to stabilize” at
the time of the explosion. He contends that the failure of the
Servomex unit to stabilize “is the precise issue identified by
Servomex when the unit was repaired on September 11, 2013.” But
that account, however, is inconsistent with Adams’ own testimony.
Adams stated that nothing out of the ordinary occurred before
the explosion. When asked if he was concerned that something was
wrong before the explosion, Adams stated, “No, Sir.” The only
testimony suggesting Adams was “waiting for the Servomex unit to
stabilize” was given by Rebecca Daigle. Daigle was not onsite at
the time of the explosion, and her testimony is based entirely on
what she recalls Adams telling her. Once again, rank hearsay.
All of the plaintiff’s theories of liability under the LPLA
are grounded on the premise that Servomex improperly switched the
modules on the analyzer. In support, however, the plaintiff offers
only
speculation
and
hearsay.
13
Hearsay
evidence
and
unsworn
documents
that
cannot
be
presented
in
a
form
that
would
be
admissible at trial do not qualify as competent opposing evidence.
Martin v. John W. Stone Oil Distrib., Inc., 819 F.2d 547, 549 (5
Cir. 1987); Fed. R. Civ. P. 56(c)(2).
Moreover, none of the plaintiff’s experts - or anyone else have performed the necessary testing or analysis on the Servomex
device to acquire competent evidence to prove that the modules
were switched. Summary relief is proper if the party opposing the
motion fails to establish an essential element of his case.
See
Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986). On this
record, the plaintiff fails to show how any characteristic of the
Servomex device was unreasonably dangerous or the proximate cause
of his injuries. Servomex’s motion for summary judgment is granted.
V.
In addition to his claims under the LPLA, the plaintiff
asserts negligence claims against both defendants. It is well
settled that the LPLA establishes the “exclusive theories of
liability for manufacturers for damage caused by their products.”
La. R.S. § 9:2800.52. Negligence is not a theory permitted by the
LPLA. Stahl v. Novartis Pharmaceuticals Corp., 283 F.3d 254, 261
(5th Cir. 2002)(“[F]or causes of action arising after the effective
date of the LPLA, negligence, strict liability, and breach of
express warranty are not available as theories of recovery against
14
a
manufacturer,
independent
from
the
LPLA.”).
Thus,
the
plaintiff’s negligence claims are dismissed.
Accordingly, IT IS ORDERED that Atlas Copco’s motion for
summary judgment is GRANTED as to the plaintiff’s negligence claim
and DENIED as to the plaintiff’s claims under the LPLA.
IT IS FURTHER ORDERED that Servomex’s motion for summary
judgment is GRANTED. The plaintiff’s claims against Servomex are
DISMISSED WITH PREJUDICE.
New Orleans, Louisiana, March 16, 2016
______________________________
MARTIN L. C. FELDMAN
UNITED STATES DISTRICT JUDGE
15
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