Guinn v. Praxair, Inc. et al

Filing 81

ORDER Directing Fike to Supplement its 80 Motion for Summary Judgment With an Explanation of Plaintiff's and Praxiar's Responses to a Request for Concurrence and for Praxair to Furnish an Expedited Response to Plaintiff's Motion to 79 Compel. (Responses due by 12/12/2018.) Signed by District Judge Thomas L. Ludington. (KWin)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
NORTHERN DIVISION
RANDY GUINN,
Plaintiff,
v

Case No. 17-11436
Honorable Thomas L. Ludington

PRAXAIR, INC., FIBA TECHNOLOGIES,
INC., FIKE CORPORATION, AND
CHART INDUSTRIES, INC.
Defendant.
__________________________________________/
ORDER DIRECTING FIKE TO SUPPLEMENT ITS MOTION FOR SUMMARY
JUDGMENT WITH AN EXPLANATION OF PLAINTIFF’S AND PRAXAIR’S
RESPONSES TO A REQUEST FOR CONCURRENCE AND FOR PRAXAIR TO
FURNISH AN EXPEDITED RESPONSE TO PLAINTIFF’S MOTION TO COMPEL
On May 4, 2017, Plaintiff filed a complaint against Praxair, Inc. (“Praxair”) and Fiba
Technologies, Inc. (“Fiba”) for injuries sustained from a hydrogen explosion. ECF No. 1. At the
time of the incident, Plaintiff was employed by Ruan Transportation Management as a commercial
truck driver. Id. On December 23, 2014, he attempted to complete a delivery of hydrogen contained
in an insulated tank trailer. Id. Plaintiff alleges that the trailer’s safety relief system failed and
hydrogen explosively escaped the tanker, injuring him. Id.
According to the complaint, Praxair owned the trailer and was negligent and breached its
duty of reasonable care as its owner. Id. at 4. On September 15, 2017, Praxair filed a Notice of
Non-Party Fault. ECF No. 19. It presented five parties not identified in Plaintiff’s complaint and
alleged that these parties were at fault for Plaintiff’s damages. Id. Among these parties was Fike
Corporation (“Fike”) and Chart Industries Inc. (“Chart”). Id. On October 17, 2017, Fiba also filed
a Notice of Non-Party Fault listing the same parties as those listed in Praxair’s Notice of Non-

Party Fault. ECF No. 20. On December 19, 2017, Plaintiff filed an amended complaint adding
Fike and Chart as defendants. ECF No. 27.
On August 9, 2017, the Court had entered a scheduling order setting March 12, 2018 as the
conclusion of discovery. ECF No. 14. On February 3, 2018, the scheduling order was amended at
the request of the parties and the close of discovery was extended to October 19, 2018, providing
the parties more than one year for discovery. ECF No. 42. On July 9, 2018, a second amendment
to the scheduling order was submitted. ECF No. 51. It sought a further extension of the dates
entered by the Court in part based upon the attorneys’ representations that they wanted to “focus
on facilitation and to control litigation costs prior to facilitation.” Id. at 2. Accordingly, the close
of discovery was extended to November 19, 2018.
Shortly thereafter, case manager Kelly Winslow received a phone call from attorney James
Hunter seeking a conference because the existing dates needed to be furthered extended,
particularly with the need to prepare for facilitation. On August 7, 2018, a phone conference was
held and additional extensions were granted in consideration of the parties’ request for leniency to
accommodate facilitation. See ECF No. 53. The close of discovery was extended to December 3,
2018. Id.
On September 17, 2018, the Court received a Joint Status Report regarding facilitation.
The report related the fact that a facilitation session was held on September 11, 2018, that it was
unsuccessful, and that Fike “elected not to participate.” ECF No. 58 at 2. On September 28, 2018,
Fike was ordered to show cause “as to why it should not be directed to participate in an additional
facilitation session and compensate all other parties who attended the previous session.” ECF No.
62 at 4.

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Among its reasons for not participating in the facilitation session, Fike explained that
notwithstanding Praxair’s Notice of Non-Party Fault, Praxair’s Director of Safety for U.S.
Industrial Gasses, Dan Rathgeber, had been deposed on May 4, 2018 regarding the company’s
Root Cause Analysis (RCA) of the accident.
In his deposition, Mr. Rathgeber identified two causes of the incident. He stated:
“[T]here were two causes. When we say ‘caused the incident,’ we need to be talking
about the focal point here, and we were looking at the injury to Mr. Guinn, so Mr.
Guinn’s really [sic] lack of operational discipline, not lowering the tank pressure to
what the procedures and the requirements were caused the incident. And then him
also going to the back of the trailer without his required PPE caused the injury to
his – to his head.”1
ECF No. 63-4 at 130. Mr. Rathgeber further stated that none of Fike’s actions caused the incident.
Q: As part of the RCA, did you determine that any actions by Fike were a cause of
this incident?
A: Any actions by Fike, the company?
Q: Yes.
A: No.
Q: The—Praxair did not reach a determination that there was a problem with the
burst disk that was a cause of the failure, correct?
A: Correct.
ECF No. 63-4 at 89–90. Later in the deposition, Mr. Rathgeber addressed the burst disk
manufactured by Fike.
A: The burst disk is a safety device, that’s correct.
Q: Okay. And then that’s a secondary safety device after, what, the pressure relief
valve?
A: Correct.
Q: So the event that occurred in this case is an example of the safety devices
working?
A: That’s correct.
1

Mr. Rathgeber went on to explain that the term “PPE” refers to protective equipment that Plaintiff should have
been wearing. ECF No. 63-4 at 130.

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Q: Because I think, as you said earlier, if they didn’t work, the entire tank full of
liquid hydrogen could have exploded?
A: That’s correct.
ECF No. 63-4 at 134–135. Accordingly, Fike’s counsel suggested that notwithstanding the status
of the existing pleadings, Fike’s counsel had been informed that Plaintiff was not looking for any
payment or contribution from Fike. ECF No. 63 at 11–12.
On October 12, 2018, the Court directed Plaintiff, Praxair, Fiba, and Chart to submit
supplemental briefing as to whether a second facilitation would be productive. ECF No. 66. On
October 19, 2018, Praxair filed its supplemental briefing and noted that Plaintiff’s complaint very
generally alleges that his injury occurred due to a failure of the trailer’s safety system. ECF No.
67 at 5. Praxair argued that because bursting discs are components of the trailer’s safety system,
Praxair would not withdraw its Notice of Non-Party at Fault naming Fike as a party until Plaintiff
withdrew or dismissed his claim that the trailer’s safety system failed. Id. at 5–6.
Later that same day, Plaintiff filed his supplemental briefing. ECF No. 70. Plaintiff’s
counsel expressed its willingness to dismiss Plaintiff’s claims against Fike if Praxair and Fiba
dismissed their Notice of Non-Party Fault against Fike. Id. at 2. However, Plaintiff did not address
amendment of his complaint to more specifically explain his negligence claim to exclude its
implication of Fike. Id.
I.
On December 30, 2018, Fike filed a motion for summary judgment. ECF No. 80. Fike
contends that “neither of Plaintiff’s liability experts found fault with Fike’s rupture disc and neither
failed to place any blame for Mr. Guinn’s accident or injuries upon Fike.” Id. at 2. However,
Fike’s motion does not indicate whether it sought concurrence from Plaintiff, who Praxair only

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identified as a potential party at fault because of Plaintiff’s generic reference to the “trailer’s safety
system,” or from Praxair, whose expert also testified that Fike’s product performed as expected.
Pursuant to Local Rule 7.1, before filing any motion in this Court “[t]he movant must
ascertain whether the contemplated motion . . . will be opposed. If the movant obtains concurrence,
the parties or other persons involved may make the subject matter of the contemplated motion or
request a matter of record by stipulated order.” E.D. Mich. L.R. 7.1(a)(1). If concurrence is not
obtained, the motion must state that the opposing party was contacted but concurrence in the relief
sought was withheld. E.D. Mich. L.R. 7.1(a)(2).
Fike’s motion does not indicate whether it contacted Plaintiff or Praxair or if Plaintiff
opposed the motion. Accordingly, Fike will be directed to seek concurrence from Plaintiff and
Praxair and to supplement its motion with Plaintiff’s and Praxair’s responses.
II.
Plaintiff has filed a Motion to Compel Answers to Interrogatories and the Production of
Documents. ECF No. 79. It explained that Plaintiff’s expert, Thomas Witte, P.E., is of the opinion
that the pressure in the trailer which led to the explosion of gas into the atmosphere was caused by
(a) overfilling of the trailer by Praxair and (b) an unrepaired defect in the trailer which allowed the
trailer to lose vacuum pressure. Id. at 11. Plaintiff believes that “historical vacuum pressure
readings and trailer repair records” might corroborate Mr. Witte’s opinion.
In its May 10, 2018 response, Praxair objected to Plaintiff’s request for historical vacuum
readings “that are not near in time to the incident.” ECF No. 79-1. In its June 25, 2018 response,
Praxair also objected to providing “Trailer 4855’s vacuum readings from December 23, 2014 to
the present” because “vacuum readings after the incident are not relevant to Plaintiff’s claims.”
ECF No. 79-2. As Praxair now has Mr. Witte’s opinion report, it will be directed to file an

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expedited response to Plaintiff’s motion. Notwithstanding Praxair’s May and June 2018 responses,
Plaintiff filed its motion to compel some five months later on November 30, 2018.
III.
Accordingly, it is ORDERED that Fike seek concurrence from Plaintiff and Praxair on its
motion for summary judgment, ECF No. 80, and supplement its motion with Plaintiff’s and
Praxair’s responses on or before December 12, 2018.
Furthermore, it is ORDERED that Praxair respond to Plaintiff’s motion to compel, ECF
No. 79, on or before December 12, 2018.

Dated: December 6, 2018

s/Thomas L. Ludington
THOMAS L. LUDINGTON
United States District Judge

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