Sexton v. Exxon Mobil Corporation et al

Filing 313

RULING denying 239 Motion in Limine. Signed by Judge John W. deGravelles on 09/04/2020. (KDC)

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UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF LOUISIANA
LEROY SEXTON
CIVIL ACTION
VERSUS
NO. 17-482-JWD-RLB
EXXON MOBIL CORPORATION,
ET AL

RULING ON DEFENDANT FLOWSERVE US INC.’S DAUBERT MOTION
AND/OR MOTION IN LIMINE TO EXCLUDE TESTIMONY OF
PLAINTIFF’S EXPERT, ROBERT M. ENICK, PH.D.

Before the Court is the Daubert Motion and/or Motion in Limine to Exclude Testimony
of Plaintiff’s Expert, Robert M. Enick (Doc. 239) brought by defendant Flowserve US Inc.
(“Defendant” or “Flowserve”). It is opposed by plaintiff Leroy Sexton (“Plaintiff” or “Sexton”).
(Doc. 259.) Flowserve filed a reply brief. (Doc. 274.) The Court has carefully reviewed the
motion and associated memoranda, and, for the following reasons, the motion is denied.
I.

BACKGROUND
The case arises out of a fire and explosion which occurred at the Exxon Mobil

Corporation refinery in Baton Rouge, Louisiana on November 22, 2016. (Doc. 239 at 1.)
Plaintiff was among those injured and sues Flowserve as the manufacturer of a plug valve1
involved in the explosion. Sexton was one of four individuals injured. An L-shaped bracket
(also manufactured by Flowserve)2 was used to mount an actuator/gearbox on top of the plug,

The valve in question was a series G411 plug valve manufactured by Flowserve’s predecessor, The Duriron
Company, Inc. (Doc. 239 at 1.) The plug is referred to by Flowserve as “the Flowserve plug valve.” (Id. at 3 n.1.) It
is also sometimes referred to as the Durco plug valve. (See, e.g., Doc. 259 at 1.)
2
Doc. 239 at 3 n.1.
1

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along with a handwheel used to manually operate the actuator/gearbox. (Id. at 2.) The plug
valve was located in an active pressurized isobutane line. (Id.)
An Exxon worker, Jonathan Zachary (“Zachary”), attempted to open the valve by using
the handwheel but found that it was inoperable. (Id. at 1–2.) While the isobutane line was still
under pressure, Zachary then began to remove the actuator gearbox in order to gain access to the
valve stem which he intended to then open with a wrench. (Id. at 2.) Four vertical bolts secured
the L-shaped bracket to the plug but also secured the pressure plate on the plug valve. (Id.)
As described in Flowserve’s motion,
After removing the actuator/gearbox, Zachary used a wrench to turn the now
exposed valve stem of the plug valve. Upon doing so, because Zachary had
removed the four vertical bolts securing the pressure plate while the isobutane line
was still pressurized, pressurized isobutane entered the plug valve causing the plug
to be partially and or totally ejected at which point the pressurized isobutane was
released into the atmosphere. The isobutane reached an ignition source . . . and a
fire and explosion occurred injuring plaintiff.
(Id. at 2-3.) As described in Plaintiff’s opposition,
Unbeknownst to Zachary, the four bolts that connected the bracket to the valve were
also the pressure-containing bolts that held the top cap of the valve in place.
Although removing the bottom four bolts could result in catastrophic valve failure,
with the plug being ejected by the pressure, resulting in the release of whatever
potentially toxic or flammable liquid was in the line, there was no warning or
instruction on the valve or the actuator to alert Zachary of that danger. Of the 500
block valves with gearboxes in the Alky unit where Zachary worked, only about
3% had this particular design characteristic. On the other 97%, there were no
“wrong bolts” associated with the actuator that, if removed, could result in a
catastrophic explosion.
(Doc. 259 at 2.)
Plaintiff sues Flowserve under the Louisiana Products Liability Act (“LPLA”), La. R.S.
9:2800.51 et seq., alleging, in part, that Flowserve’s product was unreasonably dangerous in
design pursuant to La. R.S. 9:2800.56. (Doc. 239 at 3.) In support of his contentions, Plaintiff
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offers expert witness Robert M. Enick, Ph.D. (“Enick”). (Doc. 239 at 4.) Flowserve moves to
exclude Enick’s testimony on three grounds. First, Flowserve argues that Enick’s opinion that
Flowserve’s design is defective is fatally flawed because he “has not performed the required
feasibility analysis” embedded in 9:2800.56. (Id. at 4.) Therefore, “the fact that alternative
designs may have existed at the time the Flowserve plug left its control in the 1970s is
irrelevant.” (Id.) Second, Flowserve maintains that Enick “is not qualified to provide opinions in
this case about alternative designs,” and third, his opinions regarding safer alternative designs
“are not based on any methodology or reasoning that is scientifically valid or has been tested.”
(Id. at 5.)
II.

ROBERT M. ENICK, PH.D.
Robert Enick’s curriculum vitae is found at Doc. 239-14 at 2–50 and Doc. 259-1 at 376–

429. His qualifications are summarized at Doc. 239-6 at 3–7 and 259-1 at 3–7. Briefly, he is a
professor of Chemical Engineering at the University of Pittsburgh. He has a Ph.D. in Chemical
Engineering. He is the former Chairman of the Department of Chemical and Petroleum
Engineering at the University of Pittsburgh and is the current Vice-Chair of Research in the
same Department. He has training and experience in chemical plant design, including teaching a
six-credit senior level course which provides “training on valves, which includes the different
types of valves (including plug valves) and actuators, the determination of metal thickness for
the valve given its pressure rating, the determination of the number of bolts required to safely
retain the pressure boundary, and the selection of appropriate materials of construction for the
valve and the seals.” (Doc. 239-6 at 3; 259-1 at 3.)
He provided an extensive report of some 245 pages along nearly 200 pages of
appendices. (Docs. 239-2 through 239-5; Doc. 259-1 at 1–429.) In his report, Dr. Enick explains

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the operation of the plug valve at issue; explains why it failed; analyzes its probable date of
manufacture; recounts prior incidents of catastrophic failures involving plug valves similarly
configured to the one at issue here; compares those valves and associated brackets with the one
at issue here; discusses 10 alternative designs that existed before the manufacture of the subject
valve/bracket and why these designs eliminate the risk that gave rise to the subject accident; and
analyzes the cause of the subject explosion/fire. He also provided a two-page affidavit.3 (Doc.
259-2.)
III.

ARGUMENTS OF THE PARTIES
A. Flowserve’s Arguments
1. Enick’s Failure to Perform Feasibility Analysis
Flowserve argues that, while Enick provides 10 allegedly safer alternative designs for a

plug, these alternative designs are irrelevant because they are not accompanied by a feasibility
analysis which is required by La. R.S. 9:2800.56. (Doc. 239 at 4; Doc. 239-1 at 8–12.) La. R.S.
9:2800.56 states:
Unreasonably dangerous in design
A product is unreasonably dangerous in design if, at the time the product
left its manufacturer’s control:
(1) There existed an alternative design that was capable of preventing the
claimant’s damage; and
(2) The likelihood that the product’s design would cause the claimant’s
damage and the gravity of that damage outweighed the burden on the
manufacturer of adopting such alternative design and the adverse effect, if
any, of such alternative design on the utility of the product. An adequate
warning about a product shall be considered in evaluating the likelihood of

3

Because this affidavit is the subject of a motion to strike (Doc. 278), which is opposed (Doc. 288), the Court has
not considered it for purposes of the present motion.

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damage when the manufacturer has used reasonable care to provide the
adequate warning to users and handlers of the product.
The plaintiff must therefore produce evidence showing that “the risk avoided by the
alternative design outweigh[s] the burden of its adoption.” (Doc. 239-1 at 8 (citing Glascock v.
Medical Depot, Inc., No. 11-305, 2013 WL 361002, at *3 (M.D. La. Jan. 29, 2013) (citing
Seither v. Winnebago Indus., Inc., 02-2091, p. 4 (La. App. 4th Cir. 7/2/03), 853 So .2d 37, 40;
Krummel v. Bombardier Corp., 206 F.3d 548, 552–53 (5th Cir. 2000); Jones v. Flowserve FCD
Corp., 73 F. App’x 706 (5th Cir. 2003). Flowserve argues the following:
[A] plaintiff must produce evidence regarding the frequency of accidents like his
own, the economic costs entailed by those accidents, or the extent of the reduction
in frequency of those accidents that would have followed on the use of his
proposed design . . . [or] the loss of product utility that the use of the alternative
design would have occasioned.
(Doc. 239-1 at 9 (quoting Jones, 73 F. Appx. at 708-10).)
Flowserve insists that Enick has performed no studies, analysis or research of any of
these factors, including the likelihood of incidents like this occurring (Id. at 10), “the frequency
with which plant operators come into contact with plug valve with actuator mounting
configurations” like the one in question, the costs associated with the alternative design, or the
effect on the utility of the product of such alternative designs (Id. at 10–11).
2. Enick’s Qualifications
Flowserve complains that is “not qualified to render . . . opinions about the existence of
alternative designs in the 1970s much less that any such alternative designs were ‘safer’
designs.” (Doc. 239-1 at 13.) Enick’s degree is in the unrelated fields of chemical or petroleum
engineering, he is not a professional engineer, never performed outside consulting work
involving valve design or manufacturing, and never designed a valve of the kind involved here.

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(Id. at 13–15.) He has not published articles on valve design and never had previous experience
with a Durco plug valve. (Id. at 15.) He has never had experience with evaluating gearbox
bracket configurations and has received no specialized training in this area. (Id. at 15–16.) He
has never submitted peer reviewed research or articles on his alternative designs. (Id. at 17.)
Therefore, Flowserve maintains he does not have the requisite expertise to render an opinion on
these matters.
3. Methodology
Flowserve charges that Enick’s conclusions were reached without the use of “scientific
methodology” and, in fact, he applied no “methodology standards.” (Doc. 239-1 at 18.) His
“opinions . . . that his proposed alternative designs are ‘safer’ have absolutely no indicia of
reliability under Daubert” and should not be allowed. (Id.)
B. Plaintiff’s Arguments
Plaintiff responds generally that a formal feasibility analysis is not required under the
facts of this case but, in any event, one is embedded in his report. Further, Enick’s opinions, set
out in an exquisitely detailed opinion of over 200 pages and supported by another 200 pages of
appendices, more than meets the Daubert standard of reliability and Enick is well qualified by
education, training and experience to render his opinions.
1. Feasibility Study
Plaintiff begins by emphasizing that, while alternative designs is “one important aspect”
of Enick’s testimony, “it is hardly the totality” of same. (Doc. 259 at 6.) Enick also testifies
regarding 1) the operation of the plug valve at issue; 2) why it failed; 3) its probable date of
manufacture; 4) prior incidents of catastrophic failures involving plug valves similarly
configured to the one at issue here; 5) a comparison those valves and associated brackets with

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the one at issue here; and 6) the cause of the subject explosion/fire. (Id. at 5.) Regardless of how
the Court rules on the challenged part of Enick’s opinions (alternative designs), there is no
possible basis to exclude these unchallenged parts of his testimony. (Id. at 5–6.)
As to the obligation to perform a feasibility analysis of the alternative designs, Plaintiff
argues that an expert is not required to perform that function. Rather, this is a burden placed “on
the Plaintiff, not the Plaintiff’s expert.” (Id. at 10.) “The plaintiff has to come forward with
sufficient evidence for the factfinder to make a finding on each factor, but there is no
requirement that each element be proved by expert testimony, much less testimony by the same
expert.” (Id.) Plaintiff points the Court to Lavespere v. Niagra Machine & Tool Works, Inc.,
where the Court said:
As courts in other jurisdictions that have placed on plaintiffs the burden of proof
on the risk-utility issue have suggested, there may be cases in which the judge or
jury, by relying on background knowledge and “common sense,” can “fill in the
gaps” in the plaintiff’s case, estimating the extent of the risk avoided, the costs of
implementing the proposed change, or the adverse effects of the design
modification on the utility of the machine. For this to be possible, however, the
product itself, or at least the design feature in question, must be relatively
uncomplicated, and the implications of the change in design must be such that a
layman could readily grasp them.
910 F.2d 167, 184 (5th Cir. 1990).
Plaintiff also points to similar language in Krummel v. Bombardier Corp., 206 F.3d 548,
552 n.4 (5th Cir. 2000): “A plaintiff may not need to detail and to quantify the risk and utility of
a product where the product or the design feature in question is relatively uncomplicated and
must be such that a layman could readily grasp them.” (Doc. 259 at 11.) Such, argues Plaintiff,
is the case here since each alternative design merely attaches the actuator to the valve in a
manner “that does not use all of the pressure-containing bolts to hold the actuator in place.” (Id.)

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Furthermore, insists Plaintiff, Enick’s report does contain a risk-utility analysis. Each of the ten
proposed alternative designs “was marketed and in use by 1971”. (Id.) Each of the alternative
designs “completely eliminates the risk.” (Id. at 11 (citing Ex. 1, Enick Report, Doc. 259-1 at
105–145).) Because the alternative designs involve placing the fasteners in a different location,
the redesign can be accomplished inexpensively. Referring specifically to “Safer valve
alternative # 5”, Enick wrote:
The double nuts with studs variants could have been used with the 1970s Durco
FIG.G411 valve that was involved in the accident. This would have been a simple,
inexpensive way to make the removal of the operator and wheel and adapter much
safer than the bracket associated with the Exxon refinery fire. The double nuts with
studs strategy would have required no modification of the Durco FIG.G411 valve
body, bonnet, plug or flanges. It would have required the replacement of the bolts
with the proper length studs and the purchase of 8 nuts.
(Doc. 259 at 12 (quoting Ex. 1, Enick Report, Doc. 239-1 at 144).)
Indeed, argues Plaintiff, “Flowserve adopted the flange mount system illustrated in
‘Safer design alternative # 5’ in the early 1980s.” (Doc. 259 at 13.) Further, “the evidence
shows that someone modified one of the Durco plug valves at Exxon to use the ‘studs and two
sets of nuts’ design in ‘Safer valve design # 5’ to eliminate the danger from Flowserve’s
original design, all for the cost of maybe a couple dollars.” (Id. at 13-14 (citing Ex. 1, Enick
Report, Doc. 259-1 at 140; Ex. 2, Enick Affidavit, Doc. 259-2).)
Insofar as the risk of the design in the accident valve, Plaintiff maintains that both of its
experts, Sawyer and Enick, independently “presented ample evidence of the risks associated
with Flowserve’s design and the risk of serious injury or death demonstrated by similar
incidents.” (Id. at 13.) Thus, all of the elements of the risk-utility evaluation have been amply
presented by this expert and Plaintiff.
2. Qualifications

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Plaintiff calls Flowserve’s objection to Enick’s qualifications “patently frivolous.” (Doc.
259 at 14.) Plaintiff points to his “considerable expertise in valves and refineries” (Id. at 14–15
(citing Doc. 259-1 at 3–7, 377–424)), and points to his extensive experience in in-depth
research on various topics. (Id. at 15 (citing Doc. 259-1 at 7).) Plaintiff argues that despite the
fact that his background is in chemical engineering rather than mechanical engineering, multiple
disciplines are allowed to opine on a given subject as long as their training and experience
qualify them to do so. (Id. at 16 (citing Wheeler v. John Deere Co., 935 F.2d 1090, 1100 (10th
Cir. 1991) (collecting cases); St. Martin v. Mobil Expl. & Producing U.S., 224 F.3d 402, 405-06
(5th Cir. 2000).) Nor is it required that Enick test the alternative designs since “the alternative
designs . . . were on the market half a century ago, one of which Flowserve adopted four
decades ago.” (Id.) It is not required that an expert personally observe the device in question but
can base his opinions on data provided by others. (Id. at 16–17.)
3. Methodology
Plaintiff argues that the methodology utilized by Enick—to research, discover and
explain practical and inexpensive alternative designs to the Flowserve product which could
totally eliminate the risk without sacrificing utility or increasing cost—was sufficient, and “a
quite simple and straightforward methodology that even Flowserve should be able to
understand.” (Id. at 15.)
C. Flowserve’s Reply
Flowserve reiterates its earlier arguments. It concedes that an expert is not required to
perform the risk-utility analysis as long as the “product itself, or at least the design feature in
question [is] relatively uncomplicated . . . such that a layman could readily grasp” the
implications of the design changes. (Doc. 274 at 3 (quoting Lavespere, 910 F.2d at 184).) But

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Flowserve disagrees with Plaintiff that the product here, and the suggested design changes, are
uncomplicated. (Id. at 3–4.) “The Flowserve plug valve is sophisticated mechanical industrial
equipment used in advanced technical industrial applications not readily encountered or familiar
to any layperson.” (Id. at 3.)
Further, Flowserve disputes Plaintiff’s assertion that his other expert, Sawyer, adds any
useful information to the risk-utility issue. (Id. at 4.) Flowserve reiterates its challenge to
Enick’s qualifications and, indeed, labels him “uniquely unqualified” and “remarkably
unqualified” to render the opinions he has given. (Id. at 6, 10.)
IV.

STANDARD
Flowserve’s motion is a Daubert challenge. See Daubert v. Merrell Dow Pharm., Inc.

509 U.S. 579 (1993). When Daubert is invoked, a district court may, but is not required to, hold
a hearing at which the proffered opinion may be challenged. Carlson v. Bioremedi Therapeutic
Sys., Inc., 822 F.3d 194, 201 (5th Cir. 2016). However, when no hearing is held, “a district court
must still perform its gatekeeping function by performing some type of Daubert inquiry.” Id.
“At a minimum, a district court must create a record of its Daubert inquiry and ‘articulate its
basis for admitting expert testimony.’” Id. (quoting Rodriguez v. Riddell Sports, Inc., 242 F.3d
567, 581 (5th Cir. 2001)).
Pursuant to Federal Rule of Evidence 702, “a witness who is qualified as an expert by
knowledge, skill, experience, training, or education may testify in the form of an opinion or
otherwise” if the rule’s preconditions are met. The role of the trial court is to serve as the
gatekeeper for expert testimony by making the determination of whether the expert opinion is
sufficiently reliable. As the Fifth Circuit has held:
[W]hen expert testimony is offered, the trial judge must perform a screening
function to ensure that the expert’s opinion is reliable and relevant to the facts at
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issue in the case. Daubert went on to make “general observations” intended to
guide a district court’s evaluation of scientific evidence. The nonexclusive list
includes “whether [a theory or technique] can be (and has been) tested,” whether it
“has been subjected to peer review and publication,” the “known or potential rate
of error,” and the “existence and maintenance of standards controlling the
technique's operation,” as well as “general acceptance.” The [Supreme] Court
summarized:
The inquiry envisioned by Rule 702 is, we emphasize, a flexible one.
Its overarching subject is the scientific validity and thus the
evidentiary relevance and reliability–of the principles that underlie
a proposed submission. The focus, of course, must be solely on
principles and methodology, not on the conclusions that they
generate.
Watkins v. Telsmith, Inc., 121 F.3d 984, 988-89 (5th Cir. 1997) (internal citations omitted).
Cases following Daubert have expanded upon these factors and explained that Daubert’s
listing is neither all-encompassing nor is every factor required in every case. See, e.g., Gen. Elec.
Co. v. Joiner, 522 U.S. 136, 142 (1997); Guy v. Crown Equip. Corp., 394 F.3d 320, 325 (5th Cir.
2004). Indeed, courts may look to other factors. Joiner, 522 U.S. at 146.
As this Court has explained:
The admissibility of expert testimony is governed by Federal Rule of Evidence
702 and Daubert v. Merrell Dow Pharmaceuticals, Inc., which provide that the
court serves as a gatekeeper, ensuring all scientific testimony is relevant and
reliable. This gatekeeping role extends to all expert testimony, whether scientific
or not. Under Rule 702, the court must consider three primary requirements in
determining the admissibility of expert testimony: 1) qualifications of the expert
witness; 2) relevance of the testimony; and 3) reliability of the principles and
methodology upon which the testimony is based.
Fayard v. Tire Kingdom, Inc., No. 09-171, 2010 WL 3999011, at *1 (M.D. La. Oct. 12, 2010)
(internal citations omitted) (citing Kumho Tire Co., Ltd. v. Carmichael, 526 U.S. 137, 147
(1999)).
This Court has broad discretion in deciding whether to admit expert opinion testimony.
See, e.g., Joiner, 522 U.S. at 138-39 (holding that appellate courts review a trial court’s decision
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to admit or exclude expert testimony under Daubert under the abuse of discretion standard);
Watkins, 121 F.3d at 988 (“District courts enjoy wide latitude in determining the admissibility
of expert testimony.”); Hidden Oaks Ltd. v. City of Austin, 138 F.3d 1036, 1050 (5th Cir. 1998)
(“Trial courts have ‘wide discretion’ in deciding whether or not a particular witness qualifies as
an expert under the Federal Rules of Evidence.”).
“Notwithstanding Daubert, the Court remains cognizant that ‘the rejection of expert
testimony is the exception and not the rule.’” Johnson v. Samsung Elecs. Am., Inc., 277 F.R.D.
161, 165 (E.D. La. 2011) (citing Fed. R. Evid. 702 Advisory Committee Note to 2000
amendment.) Further, as explained in Scordill v. Louisville Ladder Group, L.L.C.:
The Court notes that its role as a gatekeeper does not replace the traditional
adversary system and the place of the jury within the system. As the Daubert
Court noted, “[v]igorous cross-examination, presentation of contrary evidence,
and careful instruction on the burden of proof are the traditional and appropriate
means of attacking shaky but admissible evidence.” The Fifth Circuit has added
that, in determining the admissibility of expert testimony, a district court must
defer to “‘the jury’s role as the proper arbiter of disputes between conflicting
opinions. As a general rule, questions relating to the bases and sources of an
expert’s opinion affect the weight to be assigned that opinion rather than its
admissibility and should be left for the jury’s consideration.’”
No. 02-2565, 2003 WL 22427981, at *3 (E.D. La. Oct. 24, 2003) (Vance, J.) (internal citations
omitted) (relying on, among others, Rock v. Arkansas, 483 U.S. 44, 61 (1987), and United
States v. 14.38 Acres of Land, More or Less Sit. In Leflore Cty., 80 F.3d 1074, 1077 (5th Cir.
1996)).
The Supreme Court has recognized that not all expert opinion testimony can be
measured by the same exact standard. Rather, the Daubert analysis is a “flexible” one, and “the
factors identified in Daubert may or may not be pertinent in assessing reliability, depending on
the nature of the issue, the expert’s particular expertise, and the subject of his testimony.”

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Kumho, 526 U.S. at 150 (cited with approval in Pipitone v. Biomatrix, Inc., 288 F.3d 239, 244
(5th Cir. 2002)).
“As a general rule, questions relating to the bases and sources of an expert’s opinion
affect the weight to be assigned that opinion rather than its admissibility and should be left for
the jury’s consideration.” United States v. 14.38 Acres of Land More Or Less Situated in Lefore
Cty., 80 F.3d at 1077 (quoting Viterbo v. Dow Chemical Co., 826 F.2d 420, 422 (5th Cir.
1987)); see also Imperial Trading Co. v. Travelers Property Cas. Co. of America, No. 06-4262,
2009 WL 2356292, at *3 (E.D. La. July 28, 2009). Furthermore, “[m]atters left for the jury’s
consideration include the alleged miscalculations, erroneous assumptions, and inconsistencies
that plaintiffs object to.” Imperial Trading, 2009 WL 2356292, at *3 (citing Southwire Co. v.
J.P. Morgan Chase & Co., 258 F. Supp. 2d 908, 935 (W.D. Wis. 2007)).
V.

DISCUSSION
A. Qualifications
Federal Rule of Evidence 702 requires that an expert be properly qualified. Generally, if

there is some reasonable indication of qualifications, the court may admit the expert’s testimony
and then leave to the jury the extent of those qualifications. Rushing v. Kansas City S. Ry. Co.,
185 F.3d 496, 506 (5th Cir. 1999), superseded by statute on other grounds. Furthermore, “Rule
702 does not mandate that an expert be highly qualified in order to testify about a given issue.
Differences in expertise bear chiefly on the weight to be assigned to the testimony by the trier of
fact, not its admissibility.” Carlson, 822 F.3d at 199 (quoting Huss v. Gayden, 571 F.3d 442,
452 (5th Cir. 2009)). The Supreme Court in Kumho Tire, 526 U.S. at 148-149, 156, and

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Daubert, 509 U.S. at 592, endorsed expert testimony based on personal observation and
experience.4
Here, Enick more than meets the Rule 702 and Daubert threshold for expertise in the
areas where he has rendered his opinions. He has a Ph.D. in Chemical Engineering. He is the
former Chairman of the Department of Chemical and Petroleum Engineering at the University
of Pittsburgh and is the current Vice-Chair of Research in the same Department. His curriculum
vitae runs over 50 pages (Doc. 259-1 at 376–427) and, while it is true that the majority of his
training and experience seems to be in chemical engineering, he also has training and
experience in chemical plant design and touts specific training and experience with valves,
including plug valves. This includes teaching a six-credit senior level course which provides:
[T]raining on valves, which includes the different types of valves (including plug
valves) and actuators, the determination of metal thickness, given its pressure
rating, the determination of the number of bolts required to safely retain the
pressure boundary, and the selection of appropriate materials of construction for
the valve and the seals.
(Doc. 239-6 at 3; 259-1 at 3.) He “developed the entire chemical engineering unit operations
(i.e. equipment) laboratory” which incorporated six plug valves of various kinds. (Id.) He built
and maintains for his own research and that of graduate students a research laboratory which
includes valves. (Id. at 4.) He worked with another professor and $7,000,000 of funding to
develop a laboratory which includes a “continuous flow-plug reactor.” (Id.)
Flowserve insists, however, that Enick’s degree is in the unrelated field of chemical
engineering, he is not a professional engineer, never performed outside consulting work
involving valve design or manufacturing, and never designed a valve of the kind involved here
(Id. at 14-15), and is therefore “uniquely unqualified” and “remarkably unqualified.”(Doc. 274

4

See also LeBlanc v. Chevron USA, Inc., 396 F. App’x. 94, 100 (5th Cir. 2010) (per curiam) (unpublished).

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at 6-7.) The Court disagrees. The fact that another discipline, mechanical engineering for
example, may also provide training that would qualify an expert in this area, doesn’t disqualify
those outside the field of mechanical engineering. It is not uncommon for multiple disciplines
to have overlapping areas of expertise. And, as long as the expert is sufficiently trained,
educated or knowledgeable about a given subject matter, he may opine in that area even if other
disciplines also exercise expertise on the matter. So, for instance, “[a] medical degree is not a
prerequisite for expert testimony relating to medicine . . . [W]e have held that scientists with
PhDs were qualified to testify about fields of medicine ancillary to their field of research.”
Carlson, 822 F.3d at 200. See also St. Martin v. Mobil Offshore & Expl. & Producing, U.S., 224
F.3d 402, 405–06, (5th Cir. 2000) (explaining that witness’ expertise in marshland ecology
along with personal observation of property in question sufficiently qualified him as an expert
on servitude owner’s damage to marshland, even though not trained as a hydrologist). “In a
products liability action, an expert witness is not strictly confined to his area of practice, but
may testify concerning related applications; a lack of specialization does not affect the
admissibility of the opinion, but only its weight.” Wheeler, 935 F.2d at 1100 (collecting cases).
Courts have rejected the notion that the Federal Rules of Evidence require an expert to
have previously opined on a specific issue to be qualified as an expert on that issue. See, e.g.,
BP Expl. & Prod., Inc. v. Callidus Techs., L.L.C., No. 02-2318, 2003 WL 26118097, at *1–2
(E.D. La. Apr. 8, 2003) (rejecting argument that expert was not qualified to opine on specific
field of “flare tip design” where the expert had a general knowledge of engineering and
combustion systems); Watson v. Snap-On Tools, Inc., No. 04-1313-A, 2006 WL 2114558, at *6
(W.D. La. Jul. 26, 2006) (holding that an expert qualified in failure analysis but not in general
manufacturing, did have sufficient understanding of manufacturing processes to explain how

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such processes affect failure analysis and could offer reliable opinions). See also Tingle v.
Hebert, No. 15-626, 2018 WL 2287028, at *4 (M.D. La. Apr. 23, 2018).
The Court also notes that, with respect to the level of expertise required, the alternate
designs which form the basis for Enick’s opinions are not ones that he has created in the
abstract or that he has created at all. They are not ones that are untested and in fact have been
put into general use. They are designs which in some cases are decades old and in some cases
have been in use at the Exxon refinery where the accident took place. Indeed, “Durco actually
manufactured 4 of these 10 designs in the 1960s, including 3 safer plug valves and a safer
butterfly valve (also a block valve like a plug valve.)” (Doc. 259-1 at 146 (emphasis in
original).) And the concept involved in the allegedly safer designs is not highly sophisticated
but starts with the simple premise that when one removes bolts to access a valve, the bolts
should not, when loosened, allow pressurized and flammable gas to escape where they can
ignite and explode.
In summary, the Court finds that Enick is well qualified to testify in the areas outlined in
his report, and the Court denies Flowserve’s motion in this regard.
B. Methodolgy
Flowserve charges that Enick’s conclusions were reached without the use of “scientific
methodology” and, in fact, he applied no “methodology standards.” (Doc. 239-1 at 18.) His
“opinions . . .that his proposed alternative designs are ‘safer’ designs have absolutely no indicia
of reliability under Daubert” (id.), and should not be allowed. The Court disagrees. As stated
earlier in this ruling, the Daubert analysis is a “flexible” one, and “the factors identified in
Daubert may or may not be pertinent in assessing reliability, depending on the nature of the issue,
the expert’s particular expertise, and the subject of his testimony.” Kumho, 526 U.S. at 150 (cited

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with approval in Pipitone v. Biomatrix, Inc., 288 F.3d 239, 244 (5th Cir. 2002)). Cases following
Daubert have expanded upon these factors and explained that Daubert’s listing is neither allencompassing nor is every factor required in every case. See, e.g., Joiner, 522 U.S. at 142; Guy,
394 F.3d at 325. Rather, courts may look to other factors. Joiner, 522 U.S. at 146.
Here, Enick provided an extensive report of some 245 pages supported by nearly 200
pages of appendices. (Docs. 239-2 through 239-5; Doc. 259-1 at 1–429.) In his report, Enick
evaluates the plug valve at issue; explains why it failed; analyzes its probable date of
manufacture; recounts prior incidents of catastrophic failures involving plug valves similarly
configured to the one at issue here; compares those valves and associated brackets with the one
at issue here; discusses at length the 10 alternative designs that existed before the manufacture
of the subject valve/bracket and explains how and why these designs eliminate the risk that gave
rise to the subject accident; and, finally, analyzes the cause of the subject explosion/fire. The
Court finds that Enick’s methodology passes Daubert muster.
C. Feasibility Analysis
Both Plaintiff and Defendant agree that in a products liability action based on design, the
plaintiff must produce evidence not just of alternative designs but that “[t]he likelihood that the
product’s design would cause the claimant’s damage and the gravity of that damage outweighed
the burden on the manufacturer of adopting such alternative design and the adverse effect, if
any, of such alternative design on the utility of the product.” La. R.S. 9:2800.56(2). Both parties
agree that this feasibility or risk-utility evidence need not be by way of expert testimony as long
as “the product itself, or at least the design feature in question, [is] relatively uncomplicated,
and the implications of the change in design must be such that a layman could readily grasp
them.” (Doc. 274 at 3(emphasis omitted); Doc. 259 at 11 (both quoting Lavespere, 910 F.2d at

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184.). Plaintiff also points to similar language in Krummel, 206 F.3d at 552, n. 4: “A plaintiff
may not need to detail and to quantify the risk and utility of a product where the product or the
design feature in question is relatively uncomplicated and must be such that a layman could
readily grasp them.” (Doc. 259 at 11.) Where the parties disagree is whether the “design feature
in question” is “relatively uncomplicated . . . such that a layman could readily grasp them.”
It may be true, as Flowserve suggests, that “[t]he Flowserve plug valve is sophisticated
mechanical industrial equipment used in advanced technical industrial applications not readily
encountered or familiar to a layperson.” (Doc. 274 at 3.) But Enick’s opinions do not concern
the operation of the valve and that is not the “design feature in question.” Rather, the “design
feature in question” is the manner in which the actuator and gear housing were fastened to the
valve. As Flowserve explains in its motion:
While in the process of removing the actuator gear housing, instead of removing
the two horizontal bolts that attached [the] gearbox to the L-shaped bracket,
Zachary removed the four [bolts] that secured the L-shaped bracket to the plug
valve and which also secured the pressure plate on the plug valve. . . . [B]ecause
Zachary had removed the four vertical bolts securing the pressure plate while the
isobutane line was still pressurized, pressurized isobutane entered the plug valve
causing the plug to be partially and or totally ejected at which point the pressurized
isobutane was released into the atmosphere. The isobutane reached an ignition
source . . . and a fire and explosion occurred injuring plaintiff.
(Doc. 239 at 2-3.) As described in Plaintiff’s opposition,
Unbeknownst to Zachary, the four bolts that connected the bracket to the valve were
also pressure-containing bolts that held the top cap of the valve in place. Although
removing the bottom four bolts could result in a catastrophic valve failure, with
the plug being ejected by the pressure, resulting in the release of whatever
potentially toxic or flammable liquid was in the line, there was no warning or
instruction on the valve or the actuator to alert Zachary of that danger. Of the 500
block valves with gearboxes in the Alky unit where Zachary worked, only about
3% had this particular design characteristic. On the other 97%, there were no
“wrong bolts” associated with the actuator that, if removed, could result in a
catastrophic explosion.
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(Doc. 259 at 2.)
The heart of Enick’s report states:
Unlike the valves involved in the Exxon/Mobil (and Primex and Amoco) fire, none
of the 10 safe alternative valves could have a plug ejection due to operator error
related to the removal of the bracket and/or actuator. All 10 alternative safer designs
were available before the valve involved in the ExxonMobil refinery incident left
Durco’s control. There was simply no need for Durco to manufacture a valve
where 2/3 of the bolts associated with the bracket were so dangerous to
incorrectly remove that the plug could be ejected from the valve body and a
massive, rapid release of flammable fluids would have prevented plug ejection.
There were 10 safer preexisting alternatives that would have prevented plug
ejection; 7 of these options had no “incorrect-to-remove” bolts at all, and the
other 3 bolts did have “incorrect-to-remove” bolts but also had extra bonnet
bolts that would have prevented plug ejection even if the incorrect bolts were
removed. Durco actually manufactured 4 of these 10 designs in the 1960s,
including 3 safer plug valves and a safer butterfly valve (also a block valve like
a plug valve.) Therefore, the valve involved in the 2016 Baton Rouge fire was
not only dangerous, but unreasonably dangerous because there were so many
other safer options available before 1971.
(Doc. 259-1 at 146 (emphasis in original).)
The Court therefore feels that placement of bolts for the removal of the actuator/gear
housing in such a way such that they could not be confused with bolts holding the pressure plate
of the valve is the kind of design feature that is “relatively uncomplicated” such that “a layman
could readily grasp them” without expert testimony. Krummel, 206 F.3d at 552 n. 4. See also
McDaniel v. Terex USA, L.L.C., 466 F. App’x 365, 377 (5th Cir. 2012) (“This case does not
demand a complex, statistical risk-utility analysis” where “a jury could reasonably find that
covering or moving the [inner Kelly float] pedal [of a drill bit] would enhance safety without
incurring prohibitive cost or sacrificing utility.”); Thibodeaux v. Wellmate, No. 12-1375, 2016
WL 3144374, at *2 (E.D. La. June 6, 2016) (noting that the proposed alternative design to the
bladder of a water pressure tank was “in wide use” and concluding that “[t]his is the kind of
case in which the design feature in question, attachment of the bladder to the bottom of the tank,
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is relatively uncomplicated and the implications of the change in design is such that a layman
could readily grasp them. Therefore, this is a case in which expert testimony on the alternative
design is not necessary.”)
But even if this were not so and the risk utility evidence would need to come in by way
of expert testimony, such evidence is contained and discussed in Enick’s report. For instance, at
Doc. 259-1, at pages 16–40 and 184–229, Enick discusses and supports in graphic detail the
massive monetary damages, multiple deaths and serious injuries associated with similar
incidents at a Primex PVC plant in Puebla, Mexico in 1977 and at an Amoco plant in New
Castle, Delaware in 1980. As to cost and utility, he also shows discusses that there were
“simple, inexpensive” alternative designs that would have eliminated the risk entirely and
“required no modification of the Durco FIG.G411 valve body, bonnet, plug or flanges. It would
have required the replacement of the bolts with the proper length studs and the purchase of 8
nuts” and possibly a “slight elongation of the slots of the L-bracket.” (Doc. 259-1 at 144.) Enick
also writes that “the evidence shows that someone modified one of the Durco plug valves at
Exxon to use the ‘studs and two sets of nuts’ design in ‘Safer valve design # 5’ to eliminate the
danger from Flowserve’s original design, all for the cost of maybe a couple of dollars.” (Doc.
259 at 13-14.)
In summary, the Court reject’s Flowserve’s challenge to Enick’s testimony based on his
alleged failure to do a risk-utility analysis. None of this is to say that Enick’s opinions are
correct. That is for the jury to decide. But the opinions meet the reliability standard set by
Daubert and therefore Flowserve’s motion is denied.
VI.

CONCLUSION

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For the foregoing reasons, Flowserve’s Daubert Motion and/or Motion in Limine to
Exclude Testimony of Plaintiff’s Expert, Robert M. Enick (Doc. 239) is DENIED.
Signed in Baton Rouge, Louisiana, on September 4, 2020.

S
JUDGE JOHN W. deGRAVELLES
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF LOUISIANA

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