Federal Insurance Company, et al v. Pentair Residential Filtration, LLC,

Filing 36

Judge Richard G. Stearns: ORDER entered denying 28 Motion for Summary Judgment; denying 28 Motion to Strike (Zierk, Marsha)

UNITED STATES DISTRICT COURT
DISTRICT OF MASSACHUSETTS
CIVIL ACTION NO. 12-10853-RGS
FEDERAL INSURANCE COMPANY, as
subrogee of HERITAGE ON THE GARDEN
CONDO TRUST
and
GREAT NORTHERN INSURANCE
COMPANY, as subrogee of MCKINSEY &
COMPANY
v.
PENTAIR RESIDENTIAL FILTRATION,
LLC, d/b/a AMERICAN PLUMBER LLC.
MEMORANDUM AND ORDER ON
DEFENDANT’S MOTION FOR SUMMARY JUDGMENT
AND TO STRIKE EXPERT TESTIMONY
November 21, 2013
STEARNS, D.J.
In this products liability action, plaintiffs Federal Insurance Company
(FIC) and Great Northern Insurance Company (GNIC), seek to hold a
Pentair water filtration system responsible for extensive flood damage to
the Heritage On The Garden Condominium (Heritage On The Garden).
Heritage On The Garden Condo Trust (Heritage) is FIC’s insured. GNIC is
the insurer for Heritage On the Garden tenant McKinsey & Company.

Pentair Residential Filtration, LLC (Pentair) is the successor to the
corporation that designed and manufactured the accused water filtration
system.
Plaintiffs’ theory of liability is that the system’s filter cap was
negligently designed by Pentair’s predecessor and sold into the stream of
commerce in breach of the implied warranty of merchantability. Pentair
now moves for summary judgment, seeking to strike the testimony of
plaintiffs’ expert, Dr. Thomas W. Eager. Pentair does not challenge Dr.
Eager’s professional credentials,1 but contends that he has been unable to
disprove tampering with the original filter cap design. Pentair also argues
that Dr. Eagar has failed to identify a feasible alternative design, a
necessary element of a design defect claim. The motion will be denied.
BACKGROUND
The following facts are taken for the most part from Pentair’s
Statement of Undisputed Facts (SOF).
The American Plumber brand water filter was installed sometime in
early 2002 at Heritage on the Garden on Boylston Street in Boston.

The

Dr. Eagar earned a Bachelor’s degree from Massachusetts Institute of Technology
(MIT) in the field of Metallurgy, along with a doctorate in Sciences. As a professor at
MIT for more than thirty years, and former chair of its Department of Material Sciences
and Engineering, Dr. Eagar’s focus is on the manufacture of materials, including
plastics.
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water filter system consists of a filter cap, a filter cartridge, and a sump
canister. When installed, the filter cartridge is seated in the sump canister
on a small cylindrical base. The sump canister is then screwed into the cap.
Drinking water is funneled into the cap from the building’s plumbing and
circulates through the cleansing cartridge while making its way back
through the cap.
American Plumber water filters were sold to distributors and
plumbers, but not directly to retail consumers. The suspect filter system
was manufactured in July of 2001. There is no record of who purchased the
system, nor is there any evidence to suggest that Pentair or its predecessor
played a role in its installation. There are also no maintenance records for
the system from the date of its installation to the rupture of the filter cap in
August of 2010.
Pentair contends that, as installed, the water filter was altered from
the original design (which depended on a rubber gasket to create a water
tight seal between the filter canister and the cap) by the insertion of a stand
pipe.2 The water filter system was packaged with a plastic “sump wrench”
Pentair contends that “on the bottom of the cap (the side of the cap that faces the
inside of the sump canister), someone glued a plastic tube (the stand pipe) around the
opening through which water flowed out from the water filter and back into the cap.”
Def.’s Statement of Facts (SOF) ¶ 12, citing Sternke Dep. at 21-22; Eagar Dep. at 41, 46;
Menna Dep. at 34-35. There is no evidence that Pentair modified the filter cap to

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to be used to loosen the sump canister from the sump when replacing the
filter.

Thomas Clark, a Pentair engineer since 2000, and its current

“certification manager,” testified that the cap was designed to be tightened
by hand, and not with the sump wrench.
On August 21, 2010, the filter cap ruptured and split in half. The
rupture caused water to flood Heritage On The Garden, resulting in a
damages claim (which plaintiffs paid) in excess of $1.3 million. In April of
2011, Dr. Eagar was engaged by plaintiffs to examine the cap and other
components of the water filter system. More specifically, Dr. Eagar was
asked to “reach a preliminary opinion on what caused the top of [the] water
filter to split.” Eagar Dep. at 14. Dr. Eagar was provided with the water
filter, the filter cartridge, two gaskets, a metal O-ring, a metal wrench, a
plastic wrench, and a filter cap.
Dr. Eagar and an MIT colleague, Dr. Harold Larson, examined the
fracture in the cap under a stereomicroscope.

Dr. Eagar reached a

“preliminary opinion” that the location of the fracture “was the highest
stress location” and that “the fracture surface indicated that there was a
pre-existing crack at the time of the final separation that covered
include the stand pipe. However, Dr. Eagar is of the belief that the stand pipe was part
of the original system as manufactured.
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approximately half of the original cross-section.” Id. at 24-25. Dr. Eagar
also concluded “preliminarily” that the crack “grew by fatigue or corrosion
fatigue over time until the remaining cross-section was too small to support
the stress.” Id. Dr. Eagar located the rupture in the area of the filter cap
whether the canister screws into the cap. Further examination revealed
abrasions and cracks on opposite sides of the stand pipe along its vertical
axis and at the bottom of the filter cartridge.
After learning of Clark’s opinion that the original design had been
altered by the insertion of the stand pipe, Dr. Eagar performed additional
tests on the remnants of the filtration system and reviewed the deposition
testimony of several Pentair employees.

While unable to definitively

establish the provenance of the stand pipe, Dr. Eagar believes that it was
manufactured and installed as part of the original system. His specific
findings are as follows.
The tube was glued into the molded cap and was a near perfect
fit in both diameter and blue color. The cap also had molded
into the top “MADE IN THE USA.”
During Discovery the depositions of defendant’s representatives
were taken and both Mr. Sternke and Mr. Clarke admitted that
the cap was an American Filter product, yet they still maintain
that the matching tube, both in color and in dimension, is not
part
of
their

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product. They even suggest that the placement of this tube is
what caused the failure of the cap. I disagree. Without the tube
there would be no radial alignment of the filter cartridge within
the housing which could cause the water to bypass the
cartridge.
Furthermore, I have measured the assembly with a filter
cartridge and the tube and find no basis to suggest that the tube
adds any stress to the portion of the cap which failed. The
stress at the location which failed is the highest stress location
when the unit is pressurized [Clarke Dep. at 24.] There is a
rubber gasket outside the tube that transmits the stress of
tightening the sump portion of the housing with the filter
cartridge to the cap. The tube that is allegedly a “modification”
creates no stress on the cap failure location and does not
participate in the closure force of the sump screwed into the
cap. I find that the addition of the tube, even if it were a
modification (which I doubt based on the reasons noted above),
did not contribute in any way to this failure. I find no evidence
that the cap was counterfeit or was modified in any substantial
manner that contributed to this failure.
Gericke Aff. at Ex. A (Eagar Report).
Dr. Eager explained that in his opinion, the cap failed because of a
design defect, specifically that the inside corner radius where the crack
originated was “only 7% of the wall thickness whereas, in good engineering
design an inside radius on plastic components should be 25% to 75% of the
wall thickness. . . . Thus, there is no need to hypothesize that this filter was
over-pressurized. Based upon the final crack size, it failed under normal
service conditions.” Eagar Aff. ¶ 4. He concluded that the cap was not a
counterfeit and that the

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tube played no part in causing the rupture.3
DISCUSSION
Summary judgment is appropriate when “the movant shows that
there is no genuine dispute as to any material fact and the movant is
entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). For a
dispute to be “genuine,” the “evidence relevant to the issue, viewed in the
light most flattering to the party opposing the motion, must be sufficiently
open-ended to permit a rational factfinder to resolve the issue in favor of
either side.” Nat’l Amusements, Inc. v. Town of Dedham, 43 F.3d 731, 735
(1st Cir. 1995) (citation omitted).

“Trialworthiness requires not only a

‘genuine’ issue but also an issue that involves a ‘material’ fact.” Id. A
material fact is one which has the “potential to affect the outcome of the
suit under applicable law.” Nereida-Gonzalez v. Tirado-Delgado, 990 F.2d
701, 703 (1st Cir. 1993). “[W]hen the facts support plausible but conflicting
inferences on a pivotal issue in the case, the judge may not choose between
those inferences at the summary judgment stage.”

Coyne v. Taber

Partners I, 53 F.3d 454, 460 (1st Cir. 1995).
Pentair’s first assay on summary judgment is the contention that Dr.
Eagar’s testimony “do[es] not withstand scrutiny under the principles
Dr. Todd J. Menna, Pentair’s expert, is of the opinion that the water filter failed as a
result of the post-manufacture installation of the stand pipe by an unknown third party.

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articulated by the Supreme Court in Daubert v. Merrell Dow Pharm., Inc.,
509 U.S. 579 (1993).” Def. Mem. at 2. Pentair asserts that in dismissing
the stand pipe as a causative factor, Dr. Eagar “conducted no tests or
measurements of any kind, and he simply ignored cracks in the ‘stand pipe’
and the filter cartridge, which he concedes demonstrate that a vertical force
along the center axis of the cap and the filter cartridge was present.”4 Def.
Mem. at 2. Pentair argues further that Dr. Eagar’s opinions as to what
caused the filter cap to rupture are based on “speculative assumptions.” Id.
at 2-3.
In Daubert, the Supreme Court

imposed a duty on federal trial

judges to play the role of “gatekeeper,” insuring that the fact-finding
process does not become distorted by “expertise that is fausse and science
that is junky.” Kumho Tire Co., Ltd. v. Carmichael, 526 U.S. 137, 159
(1999) (Scalia, J., concurring); see also Wilson v. City of Chicago, 6 F.3d
1233, 1238 (7th Cir. 1993). Two gateposts frame the exercise of a judge’s

Dr. Eagar claims that “without the tube there would be no radial alignment of the filter
cartridge within the housing which could cause the water to bypass the cartridge.”
Eagar Report at 2. Further, Dr. Eagar “measured the assembly with a filter cartridge
and the tube and found no basis to suggest that the tube adds any stress to the portion of
the cap which failed.” Id. In his opinion, a fatigue crack developed at a weak point in
the filter cap (“[T]he inside corner radius where the crack originated was much too
small for good general engineering design in plastic materials”) and grew steadily over
time, extending to half of the thickness of the cap just before it fractured. He concluded
that the “weak point” of the cap was unable to sustain the stress exerted on it by water
pressure and torque (the force from tightening the cap).
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discretion to admit or exclude expert testimony. First, the witness must be
shown to be sufficiently qualified by “knowledge, skill, experience, training,
or education.” Fed. R. Evid. 702. Second, the Federal Rules of Evidence
require that the judge “ensure that any and all scientific testimony or
evidence admitted is not only relevant, but [also] reliable” (and helpful to
the finder of fact). Daubert, 509 U.S. at 589. “[T]he trial judge must
determine at the outset, pursuant to Rule 104(a), whether the expert is
proposing to testify to (1) scientific knowledge that (2) will assist the trier of
fact to understand or determine a fact in issue. This entails a preliminary
assessment of whether the reasoning or methodology underlying the
testimony is scientifically valid and of whether that reasoning or
methodology properly can be applied to the facts in issue.” Id. at 592-593.
In pressing its Daubert challenge, Pentair objects to Dr. Eagar’s
rejection of the insertion of a foreign stand pipe as the precipitating cause
of the rupture in favor of his theory that a defect in the design of the cap
allowed a stress fracture to develop causing the cap to fail under pressure.
Pentair specifically criticizes Dr. Eagar’s “assumptions” that the water
pressure in the system typically measured at 100 psi5 and that the stress

Dr. Eagar concedes that he cannot definitively say what the water pressure level
actually was anywhere in the building at the precise point in time when the filter cap
failed – that “[every time someone turns on a faucet there is a significant change in
water pressure.” SOF ¶ 41. Dr. Eagar based his 100 psi assumption on a photograph of
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fracture had been aggravated when an unknown person used the plastic
wrench to tighten the cap to the canister.6
Pentair argues that Eagar’s opinion, at best, is that “it was possible for
the filter cap to develop a fatigue crack [because] of water pressure and
torque; therefore, it must have.” Def. Mem. at 16. Pentair argues that, as a
matter of law, a plaintiff’s expert in a product liability case is required to
opine that a defect was the cause of the injury at issue, while Dr. Eagar’s
testimony merely theorizes that the alleged design defect could have caused
the cap to fail. In advancing this argument, Pentair relies on a misreading
of Enrich v. Windmere Corp, 416 Mass. 83, 87-89 (1993). In Enrich, the
plaintiff brought a products liability action for property damage sustained
as the result of a fire alleged to have been caused by an electric fan. The
trial judge directed a verdict at the close of the evidence, ruling that “[t]he
cause of the fire was not susceptible of determination by the jury’s ‘general

the water pressure gauge taken shortly after the failure occurred, as well as on the fact
that most faucets and valves are designed to operate at less than 100 psi. Dr. Eagar
testified that he adjusted the 100 psi figure to account for the fact that the failure
occurred on an upper floor of the condominium building. Eagar Dep. at 146.
Dr. Eagar assumed that the plastic wrench was used because it was supplied with the
original kit. Pentair’s expert Dr. Menna conversely assumed that whoever installed the
water filter system would have tightened it by hand based on the instructions that came
with the replacement filter cartridge. However, there is no evidence that the instruction
leaflet was provided with the original filter kit.

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knowledge of practical affairs.’” Id. at 89.7 As the Court in Enrich observed,
“there was no evidence that some defect in the fan caused the fire or that, if
such a defect existed, it was present at the time the fan was sold. The
presence of such a defect cannot be inferred in the absence of expert
testimony.”

Id. at 87 (emphasis added).

Neither Enrich nor Daubert

requires that an expert rule out every conceivable alternative explanation of
an event as a predicate for the admissibility of his or her testimony.
Daubert does not require that a party who proffers expert
testimony carry the burden of proving to the judge that the
expert’s assessment of the situation is correct. . . . In short,
Daubert neither requires nor empowers trial courts to
determine which of several competing theories has the best
provenance. It demands only that the proponent of the
evidence show that the expert’s conclusion has been arrived at
in a scientifically sound and methodologically reliable fashion.
Ruiz-Troche v. Pepsi Cola of Puerto Rico Bottling Co., 161 F.3d 77, 85 (1st
Cir. 1998) (citations omitted).

In pressing their counter-argument,

plaintiffs appropriately cite Santos v. Sunrise Med., Inc., 351 F.3d 587, 590
(1st Cir. 2003) (expert’s failure to determine the amount of force necessary
to tip a hydraulic lift did not render his testimony too speculative), and
Simmons v. Monarch Mach. Tool Co., Inc., 413 Mass. 205, 212 (1992) (fact

The Enrich plaintiff was proceeding without expert testimony, relying unpropitiously
on the doctrine of res ipsa loquitur.
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that expert failed to measure the actual forces necessary to cause a tap to
eject did not render his testimony unacceptably speculative).
Outside of the Daubert context, Pentair argues that summary
judgment is appropriate because of Dr. Eagar’s alleged failure to offer
evidence of a feasible alternative (and safer) design. See Evans v. Lorillard
Tobacco Co., 465 Mass. 411, 428 (2013), quoting Restatement (Third) of
Torts: Products Liability § 2 comment f, at 24 (1998) (“To establish a prima
facie case of [product] defect, the plaintiff must prove the availability of a
technologically feasible and practical alternative design that would have
reduced or prevented the plaintiff's harm.”). While correctly citing the law,
Pentair’s argument fails to sufficiently credit Dr. Eagar’s opinion that “in
good engineering design . . . an inside radius on plastic components should
be 25% to 75% of the wall thickness.”8 He iterated this opinion in his
deposition and in an affidavit submitted with plaintiffs’ opposition to the
summary judgment motion.9 In sum, there is sufficient evidence of a

In his report, Dr. Eagar stated that his opinion with respect to the desired wall
thickness was based in part on a widely accepted engineering treatise, the Engineering
Materials Handbook, and its chapter entitled “Design Approach for Engineering
Plastics.”
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To repeat, Dr. Eagar opined that the cap failed because it was only 7% of the wall
thickness instead of the desired 25% to 75% and that “[a] larger inside corner radius
would prevent a crack from forming in that area of the type that occurred in this case.”
Eagar Aff. ¶ 6.
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feasible alternative design offered by plaintiffs to warrant submission of the
issue to a jury.
ORDER
For the foregoing reasons, the motion to strike Dr. Eagar’s testimony
on Daubert grounds is DENIED. The motion for summary judgment is
DENIED.
SO ORDERED.
/s/ Richard G. Stearns
___________________________
UNITED STATES DISTRICT JUDGE

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