TruSouth Oil L L C v. Burlington Insurance Co et al

Filing 197

MEMORANDUM ORDER denying 98 Daubert Motion; denying 99 Daubert Motion; denying 100 Daubert Motion; denying 101 Daubert Motion. Signed by Magistrate Judge Mark L Hornsby on 12/19/2012. (crt,Dauterive, C)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF LOUISIANA
SHREVEPORT DIVISION

TRUSOUTH OIL, LLC

CIVIL ACTION NO. 11-cv-0493

VERSUS
BURLINGTON INSURANCE CO., ET AL

MAGISTRATE JUDGE HORNSBY

MEMORANDUM ORDER
PetroTech’s Daubert Motion Re: Opinions of Lynn Massad (Doc. 99) is denied.
PetroTech originally argued that Massad’s testimony should be excluded or limited because
Massad did not issue an expert report and her testimony would include an unsupported
opinion on the industry standard for testing. TruSouth responded that adequate disclosure
was made for this in-house employee to satisfy Rule 26(a)(2)(B) and that Massad would
testify as a fact witness about the testing conducted but would not testify as to what the
industry standard was in 2010. PetroTech stated in its reply that it accepts TruSouth’s
explanations regarding the scope of Massad’s testimony. The court finds that the disclosure
regarding Massad’s testimony satisfied the rule. The other objections to her testimony are
moot in light of the developments made during the briefing.
PetroTech’s Daubert Motion Re: Opinions of Jeremy C. Hoffpauir (Doc. 98) is
denied. Mr. Hoffpauir, a registered professional engineer with experience working with
hydraulic systems and oils, offers four conclusions in his report. PetroTech does not
challenge his conclusions that the use of the subject oil resulted in a varnish-like substance

buildup in the hydraulic systems of the equipment that was uncharacteristic of properly
performing oil, the varnish-like substance caused failures of hydraulic systems, and the costs
to repair damage to the hydraulic systems were reasonable and necessary expenses to repair
existing damage and prevent future malfunctions caused by the subject hydraulic oil.
PetroTech does object to a fourth opinion, which reads as follows:
The number of hydraulic system failures began increasing during the summer
of 2010 and peaked in the fall of 2010, which is consistent with the ‘New June
Blend’ entering the stream of commerce in June 2010.
PetroTech argues that Hoffpauir improperly equated the presence of the varnish-like
substance to the use of PetroTech material, without any testing or verification, and
improperly implied that the mere presence of the varnish-like substance equated to damage
caused by PetroTech material. The essence of PetroTech’s argument is that New June Blend
entering the “system of commerce” does not equate to causation.
TruSouth responds that Mr. Hoffpauir’s review of invoices and other evidence noted
a correlation between the rise of customer complaints and TruSouth’s purchase of the New
June Blend that contained tall oil. TruSouth says that a conclusion of whether the PetroTech
product was the cause of the customer complaints is one for the jury, which they can make
based on the results of Hoffpauir’s investigation. TruSouth’s characterization of Hoffpauir’s
testimony on this point suggests that it is more in the nature of fact evidence than an expert
opinion. A correlation can often be established by any witness, expert or not, by presenting
testimony or other evidence that shows a temporal or other relationship between one event

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and another. Causation, on the other hand, calls for an expert opinion in the context of a case
such as this. TruSouth suggests that Hoffpauir will not offer that ultimate opinion but will
simply present facts in an effort to establish a mere correlation between New June Blend
being used and customer complaints arising. TruSouth will be allowed to present such
evidence.
PetroTech’s Daubert Motion Re: Opinions of Christian W. Knudsen (Doc. 101) is
denied. Dr. Knudsen has multiple degrees in chemical engineering and has been a registered
professional engineer for more than 30 years. He has opined that any competent chemical
engineer would have advised PetroTech not to blend tall oil into its New June Blend, that
Lynn Massad of TruSouth would have rejected the blend out of hand had she been given any
indication tall oil was a component, and that TruSouth and Ms. Massad “should not be
considered in any way responsible for this debacle.” PetroTech objects that this final
statement is an unsubstantiated legal opinion and faults Dr. Knudsen for having done no
testing of the products at issue.
None of Knudsen’s opinions relate to the actual results of the testing, so the court sees
no basis to attack his testimony on the grounds that he did not test the New June Blend
himself. His opinions regard whether a reasonable chemist at TruSouth should have tested
for the presence of tall oil, and those opinions do not appear to be improper. Knudsen will
be allowed to testify, and PetroTech may attempt to diminish the weight of his testimony by

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cross-examining him regarding the lack of testing and other weaknesses it perceives with
respect to his testimony.
PetroTech’s Daubert Motion Re: Opinions of John S. Roberts, PhD (Doc. 100) is
denied. Roberts has a PhD in chemistry and has offered 13 numbered opinions in his report.
The first 12 are to the effect that the tall oil included in PetroTech’s New June Blend may
not be suited for use as a blend component and a lubricant, PetroTech’s documentation
misrepresented that the product was made of petroleum products, TruSouth would not have
purchased the New June Blend had it known of its actual contents, and the New June Blends
are not stable to oxidation and generate solids in a relatively short time.
PetroTech’s motion is directed at opinion number 13: “The solids generated by the
testing of the ‘New June Blends’ are similar to solids found in equipment of end users of
TruSouth hydraulic fluids.” PetroTech complains that Roberts tested New June Blend, which
was a single component and not the sole ingredient of TruSouth’s hydraulic oils, meaning
no TruSouth customer used straight New June Blend. PetroTech adds that Roberts said he
assumed the solid material he examined came from equipment that had oil in it made from
New June Blend, but Mr. Hoffpauir (who provided Roberts the solids) testified that he did
not verify whether the equipment he examined had actually received hydraulic oil that
contained New June Blend. If this is correct, Dr. Roberts may not be able to testify with
respect to opinion number 13. The court will not make a definitive ruling on the issue based
on the limited record before it, but TruSouth will have to establish an adequate foundation

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before presenting testimony of this nature. If TruSouth intends to elicit such testimony from
Dr. Roberts at trial, counsel should bring this to the court’s attention early in the trial so that
any hearing outside the presence of the jury that may be required to resolve the issue can be
conducted in the evening or otherwise so that the presentation to the jury during ordinary
hours is not delayed.
THUS DONE AND SIGNED in Shreveport, Louisiana, this 19th day of December,
2012.

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