Burroughs Diesel, Inc. v. Baker Petrolite, LLC et al
Filing
201
MEMORANDUM OPINION AND ORDER granting in part and denying in part 135 Motion for Summary Judgment; denying 137 Motion in Limine; denying 140 Motion to Exclude; finding as moot 142 Motion to Exclude; granting in part and denying in part 145 Motion in Limine; granting in part and denying in part 147 Motion for Summary Judgment; granting 174 Motion to Strike. Signed by District Judge Keith Starrett on 10/22/19. (cb)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF MISSISSIPPI
EASTERN DIVISION
BURROUGHS DIESEL, INC.
v.
PLAINTIFF
CIVIL ACTION NO. 2:18-CV-26-KS-MTP
BAKER PETROLITE, LLC, et al.
DEFENDANTS
MEMORANDUM OPINION AND ORDER
For the reasons provided below, the Court rules as follows:
1. The Court grants the Baker Defendants’ Motion to Strike [174]
portions of the affidavit of Plaintiff’s expert, Fernando Lorenzo.
2. The Court grants in part and denies in part the Baker
Defendants’ Motion to Exclude [145] the testimony of Plaintiff’s
expert, Fernando Lorenzo. Specifically, the Court grants the
motion with respect to Lorenzo’s opinions regarding the
remaining useful life of the metal buildings’ roofing panels and
side panels, and with respect to Lorenzo’s opinions regarding
several miscellaneous repair invoices. The Court denies the
motion in all other respects.
3. The Court denies Defendant Poly Processing Company, LLC’s
(“Poly”) Motion to Exclude [137] certain testimony by Plaintiff’s
experts, Fernando Lorenzo and Roger Craddock.
4. The Court denies Plaintiff’s Motion to Exclude [140] certain
testimony by Baker’s expert, Gale Hoffnagle.
5. The Court denies as moot Plaintiff’s Motion to Exclude [142]
certain testimony by Baker’s expert, James Koerber.
6. The Court grants in part and denies in part Poly’s Motion for
Summary Judgment [135]. The Court grants the motion with
respect to Plaintiff’s design defect claim, but the Court denies it
in all other respects.
7. The Court grants in part and denies in part Baker’s Motion
for Summary Judgment [147]. The Court denies the motion with
respect to Plaintiff’s claimed cleanup costs, tire inventory, tools
and equipment, and halogen lights, but the Court grants the
motion in all other respects.
I. BACKGROUND
This case arises from a hydrochloric acid (“HCl”) spill. Defendants Baker
Petrolite, LLC and Baker Hughes Oilfield Operations, Inc. (collectively, “Baker”)
owned a 6,100 gallon polyethylene storage tank which was designed and
manufactured by Defendant Poly Processing Company, LLC (“Poly”). Baker used the
tank to store HCl. Plaintiff, Burroughs Diesel, Inc., owned property adjacent to
Baker’s property. In October 2016, approximately 5,300 gallons of HCl leaked from a
crack in the bottom of the tank.
Plaintiff alleges that the spill created a cloud of HCl vapor that traveled to and
engulfed its property for hours, causing extensive damage to buildings, vehicles,
inventory, tools, machines, and equipment. Plaintiff contends that the spill had two
causes. First, Plaintiff alleges that the storage tank had a manufacturing defect – a
void, or air bubble, in the polyethylene that created a weak spot at the bottom of the
tank. Second, Plaintiff alleges that Baker was negligent in its maintenance/use of the
tank. Plaintiff claims that Baker failed to inspect the tank as recommended by the
manufacturer, and that Baker routinely over-filled the tank, creating excess pressure
which caused a crack to develop at the spot weakened by the manufacturing defect,
which grew over time and eventually ruptured.
2
Plaintiff asserted state-law claims of negligence, gross negligence, trespass,
and nuisance against Baker, as well as a claim under CERCLA, 42 U.S.C. § 9607, for
recovery of its response costs. Plaintiff also asserted a product liability claim against
Poly. The parties filed numerous dispositive motions, all of which are ripe for the
Court’s review.
II. MOTION TO STRIKE [174]
Baker argues that the Court should strike portions of Dr. Fernando Lorenzo’s
affidavit [162-2], presented in support of Plaintiff’s responses to Baker’s Motion for
Summary Judgment [147] and Motion to Exclude [145] his testimony. Baker contends
that the affidavit contains new, previously undisclosed expert opinions. Plaintiff
claims that the opinions were timely disclosed.
A.
Fair Market Value of the Burroughs Buildings
First, Baker argues that the Court should strike Lorenzo’s opinion that the
reduction in useful life of the metal buildings’ roofs and side panels “is proportionate
to the reduction in the fair market value of the buildings after the spill.” Exhibit 2 to
Response at 6, Burroughs Diesel, Inc. v. Baker Petrolite, LLC, No. 2:18-CV-26-KSMTP (S.D. Miss. July 19, 2019), ECF No. 166-2. Lorenzo provided specific numbers:
“[T]he diminution in value of the buildings after the spill is 65% of the pre-spill fair
market value ($4,427,770), which is $2,878,050.50, leaving a post-spill fair market
value of 35% or $1,549,719.50.” Id.
Plaintiff argues that another expert provided an appraisal of the buildings’
3
value before the spill, which was disclosed to Baker along with Lorenzo’s opinions
regarding the useful life of the buildings. Therefore, Plaintiff contends that Lorenzo’s
simple application of his own estimate of the buildings’ remaining useful life to
another expert’s appraisal of the buildings’ pre-spill value is not, in fact, a new
opinion. The Court disagrees.
The Court closely examined Lorenzo’s report [145-2], the transcript of his
deposition [145-3], and the exhibits referred to in each. Although he provided
estimates regarding the useful life of the buildings’ roofs and side panels, he never
expressed any opinion regarding the fair market value of the buildings. In fact, based
on his report and deposition, one would not anticipate the possibility of Lorenzo
expressing an opinion regarding the buildings’ market value because such opinions
are wholly dissimilar from his proposed area of expertise. Therefore, the opinions
regarding the fair market value of the buildings in section 4, sub-paragraph (D) of his
affidavit are new opinions, first disclosed in response to Baker’s motion for summary
judgment.
Rule 26 provides that “a party must disclose to the other parties the identity
of any witness it may use at trial to present” expert testimony. FED. R. CIV. P.
26(a)(2)(A). “Unless otherwise stipulated or ordered by the court, this disclosure must
be accompanied by a written report – prepared and signed by the witness – if the
witness is one retained or specially employed to provide expert testimony in the case
. . . .” FED. R. CIV. P. 26(a)(2)(B). “A party must make these disclosures at the times
4
and in the sequence that the court orders.” FED. R. CIV. P. 26(a)(2)(D). Local Rule 26
provides that a “party must make full and complete disclosure as required by Fed. R.
Civ. P. 26(a) and L.U.Civ.R. 26(a)(2)(D) no later than the time specified in the case
management order.” L.U.Civ.R. 26(a)(2).
Additionally, “[t]he parties must supplement these disclosures when required
under Rule 26(e).” FED. R. CIV. P. 26(a)(2)(E). “[A] party is required to supplement its
expert disclosures if the court so orders or if the party learns that in some material
respect the information disclosed is incomplete or incorrect and if the additional or
corrective information has not otherwise been made known to the other parties
during the discovery process or in writing.” Sierra Club, Lone Star Chapter v. Cedar
Point Oil Co., Inc., 73 F.3d 546, 570 n. 42 (5th Cir. 1996) (quoting FED. R. CIV. P.
26(e)(1)). “[T]he party’s duty to supplement extends both to information included in
the report and to information given during the expert’s deposition. Any additions or
changes to this information must be disclosed by the time the party’s pretrial
disclosures under Rule 26(a)(3) are due.” FED. R. CIV. P. 26(e)(2). “Unless the court
orders otherwise,” pretrial disclosures must be made at least thirty days before trial.@
FED. R. CIV. P. 26(a)(3). Local Rule 26 provides that a “party is under a duty to
supplement disclosures at appropriate intervals under Fed. R. Civ. P. 26(e) and in no
event later than the discovery deadline established by the case management order.”
L.U.Civ.R. 26(a)(5) (emphasis added).
Therefore, if Plaintiff wanted to supplement the information provided in
5
Lorenzo’s expert report and deposition, it was required to do so by the discovery
deadline. Here, Plaintiff first disclosed Lorenzo’s opinions regarding the fair market
value of the buildings in response to Baker’s motion for summary judgment.
Therefore, the new opinions were not timely disclosed.
Rule 37 provides: “If a party fails to provide information or identify a witness
as required by Rule 26(a) or (e), the party is not allowed to use that information or
witness to supply evidence on a motion, at a hearing, or at trial, unless the failure
was substantially justified or is harmless.” FED. R. CIV. P. 37(c)(1). When determining
whether to strike an expert’s testimony for a party’s failure to timely disclose it, the
Court considers the following factors:
(1)
the importance of the witnesses’ testimony;
(2)
the prejudice to the opposing party of allowing the witnesses to testify;
(3)
the possibility of curing such prejudice by a continuance; and
(4)
the explanation, if any, for the party’s failure to comply with the
discovery order.
Sierra Club, 73 F.3d at 572; see also Reliance Ins. Co. v. La. Land & Exploration Co.,
110 F.3d 253, 257 (5th Cir. 1997).
First, the testimony is important. Plaintiff has another expert, John Adamson,
who provided an appraisal of the property’s value before the spill. See Exhibit D to
Motion for Summary Judgment, Burroughs Diesel, Inc. v. Baker Petrolite, LLC, No.
2:18-CV-26-KS-MTP (S.D. Miss. June 20, 2019), ECF No. 147-4. But Plaintiff
apparently has no appraisal of the property’s post-spill value.
6
However, allowing Lorenzo to provide expert testimony regarding the fair
market value of the properties would be prejudicial to Baker. Baker was unable to
question Lorenzo regarding any such opinions during his deposition, and it had no
opportunity to obtain rebuttal opinions from its own experts. Moreover, there is no
time to cure the prejudice because the pretrial conference is imminent. The Court will
not reopen discovery at this late stage of the proceedings. At this point, the parties
should be focused on preparation of a pretrial order and for trial.
Finally, Plaintiff has not provided any satisfactory explanation for its failure
to timely disclose Lorenzo’s opinions regarding the market value of the buildings.
Therefore, the Court concludes that they should be excluded. Plaintiff is not allowed
to rely on them in support of or response to a motion, at a hearing, or at trial.
B.
Cost to Repair and the Repaired Condition
Next, Baker argues that the Court should exclude Lorenzo’s opinions regarding
the cost to repair the buildings’ roofs and side panels, his opinion that the cost to
repair them would exceed the diminution in the buildings’ value, and his opinion that
repaired roofs and side panels would be inferior to their pre-spill condition. These
opinions are in section 5 of Lorenzo’s affidavit. See Exhibit 2 [166-2], at 6-8.
In response, Plaintiff argues that Lorenzo did, in fact, address these issues in
his deposition. Plaintiff also argues that repairing the roofs and side panels would be
essentially the same as replacing them, and, therefore, Lorenzo’s opinion regarding
the cost of replacement is sufficient notice to Defendants of his opinions regarding
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the cost of repair.
During
Lorenzo’s
deposition,
Baker’s
counsel
asked
him
whether
“regalvanizing” the roof panels would fix the problems allegedly caused by exposure
to HCl. Exhibit C to Motion in Limine at 47, Burroughs Diesel, Inc. v. Baker Petrolite,
LLC, No. 2:18-CV-26-KS-MTP (S.D. Miss. June 20, 2019), ECF No. 145-3. Lorenzo
answered, “Yes.” Id. But he noted that “galvanizing is . . . a process that is made
during the [production] of the roof panels.” Id. Later, counsel asked whether
“repainting” the side panels would fix the problems allegedly caused by exposure to
HCl. Id. at 49. Lorenzo answered, “It is possible, yes. You will have to sandblast,
prepare the surface, and then . . . repaint the side panels. Chances are that you may
not get the exact . . . same finish because as you know, those panels are factory made,
not painted after they are prepared.” Id. But he confirmed that “[w]ith the proper
preparation, . . . it will . . . re-coat the panels.” Id.
The Court closely examined Lorenzo’s report, the transcript of his deposition,
and the exhibits referred to in each. Although he provided opinions regarding the cost
to replace the buildings’ roofs and side panels, Lorenzo did not provide any opinions
regarding the cost to repair the buildings’ roofs and side panels. Plaintiff’s argument
that the two costs must be essentially the same because they will require similar
labor requires an inferential leap – without enough supporting testimony or evidence
– that the Court declines to make. Also, Lorenzo did not testify that the quality of the
repaired roofs and side panels would be inferior to their pre-spill condition. Rather,
8
he stated that repainting the side panels would probably not produce the “same
finish.” Id. In fact, he explicitly affirmed that “regalvanizing” the roof panels would
fix whatever problems were caused by the HCl, id. at 47, and that repainting the side
panels would “probably” fix them. Id. at 49.
Therefore, the Court concludes that most of the opinions expressed in section
5 of Lorenzo’s affidavit are new, previously undisclosed opinions. As noted above, if
Plaintiff wanted to supplement Lorenzo’s disclosed testimony, it was required to do
so by the discovery deadline. Plaintiff first disclosed Lorenzo’s opinions regarding the
cost to repair the buildings’ roofs and side panels, his opinion that the cost to repair
them would exceed the diminution in the buildings’ value, and his opinion that
repaired roof and side panels would be inferior to their pre-spill condition in response
to Baker’s motion for summary judgment. Accordingly, the opinions were not timely
disclosed.
The Court will assume the testimony is important, but allowing Lorenzo to
provide the new opinions would be prejudicial to Baker. Baker was unable to question
Lorenzo regarding any such opinions during his deposition, and it had no opportunity
to obtain rebuttal opinions from its own experts. Moreover, there is no time to cure
the prejudice because the pretrial conference is imminent. The Court will not reopen
discovery at this late stage of the proceedings. At this point, the parties should be
focused on preparation of a pretrial order and preparing for trial.
Finally, Plaintiff has not provided any satisfactory explanation for its failure
9
to timely disclose Lorenzo’s opinions regarding the cost to repair the buildings’ roofs
and side panels, his opinion that the cost to repair them would exceed the diminution
in the buildings’ value, and his opinion that repaired roof and side panels would be
inferior to their pre-spill condition. Therefore, the Court concludes that they should
be excluded. Plaintiff is not allowed to rely on them in support or response to a motion,
at a hearing, or at trial. The Court excludes the expert testimony contained in section
5 of Lorenzo’s affidavit, except insofar as Lorenzo addressed “regalvanizing” and
repainting during his deposition, as cited above. But Lorenzo may not say anything
on the subject that he did not say during the deposition.
For these reasons, the Court grants Baker’s Motion to Strike [174] portions of
the affidavit of Plaintiff’s expert, Fernando Lorenzo.
III. MOTION TO EXCLUDE TESTIMONY OF FERNANDO LORENZO [145]
Baker filed a Motion to Exclude [145] the testimony of Plaintiff’s expert, Dr.
Fernando Lorenzo, concerning the damages to Plaintiff’s property. Baker contends
that Lorenzo is unqualified to testify as an expert, and that his opinions are neither
reliable nor relevant.
Rule 702 provides:
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:
(a) the expert’s scientific, technical, or other specialized
knowledge will help the trier of fact to understand the evidence
or to determine a fact in issue;
10
(b) the testimony is based on sufficient facts or data;
(c) the testimony is the product of reliable principles and
methods; and
(d) the expert has reliably applied the principles and methods to
the facts of the case.
FED. R. EVID. 702. Therefore, “when 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 issue in the case.” Watkins v. Telsmith, Inc., 121 F.3d 984,
988-89 (5th Cir. 1997).
In Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579, 113 S. Ct. 2786, 125 L.
Ed. 2d 469 (1993), the Supreme Court provided a nonexclusive list of “general
observations intended to guide a district court’s evaluation of scientific evidence,”
including: “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.” Watkins, 121 F.3d at 989 (punctuation
omitted).
Not every guidepost in Daubert will necessarily apply . . . , but the
district court’s 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 is no less important.
Id. at 990-91 (punctuation omitted).
Expert testimony must be supported by “more than subjective belief or
11
unsupported speculation.” Paz v. Brush Eng’red Materials, Inc., 555 F.3d 383, 388
(5th Cir. 2009). It “must be reliable at each and every step or it is inadmissible. The
reliability analysis applies to all aspects of an expert’s testimony: the methodology,
the facts underlying the expert’s opinion, the link between the facts and the
conclusion, et alia.” Seaman v. Seacor Marine LLC, 326 F. App’x 721, 725 (5th Cir.
2009). “Overall, the trial court must strive to ensure that the expert, whether basing
testimony on professional studies or personal experience, employs in the courtroom
the same level of intellectual rigor that characterizes the practice of an expert in the
relevant field.” United States v. Valencia, 600 F.3d 389, 424 (5th Cir. 2010).
But the Court’s role as gatekeeper is not meant to supplant the adversary
system because “[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.” Daubert, 509 U.S. at 596. The Court
should focus solely on the proposed expert’s “principles and methodology, not on the
conclusions that they generate.” Id. at 595. But “nothing in either Daubert or the
Federal Rules of Evidence requires a district court to admit opinion evidence
connected to existing data only by the ipse dixit of the expert.” GE v. Joiner, 522 U.S.
136, 146, 118 S. Ct. 512, 139 L. Ed. 2d 508 (1997).
In summary, the proponent of expert testimony must demonstrate that the
proposed expert is qualified, that the testimony is reliable, and that it is relevant to
a question of fact before the jury. United States v. Hicks, 389 F.3d 514, 525 (5th Cir.
12
2004). The proponent must prove these requirements “by a preponderance of the
evidence.” United States v. Fullwood, 342 F.3d 409, 412 (5th Cir. 2003).
A.
Qualification
First, Baker argues that Lorenzo is not qualified to provide expert testimony
concerning the damage to Plaintiff’s property because he has insufficient experience,
education, or training regarding HCl. In response, Plaintiff cites Lorenzo’s education
and experience in the fields of metallurgy and mechanical engineering.
Rule 702 provides that an expert may be qualified by “knowledge, skill,
experience, training, or education . . . .” FED. R. EVID. 702. Expert testimony “serves
to inform the jury about affairs not within the understanding of the average man.”
United States v. Moore, 997 F.2d 55, 57 (5th Cir. 1993). Therefore, “[a] district court
should refuse to allow an expert witness to testify if it finds that the witness is not
qualified to testify in a particular field or on a given subject.” Wilson v. Woods, 163
F.3d 935, 937 (5th Cir. 1999).
A proposed expert does not have to 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.” Huss v. Gayden, 571 F.3d 442,
452 (5th Cir. 2009). Likewise, lack of personal experience “should not ordinarily
disqualify an expert, so long as the expert is qualified based on some other factor
provided by Rule 702 . . . .” United States v. Wen Chyu Liu, 716 F.3d 159, 168 (5th
Cir. 2013). Moreover, an “expert witness is not strictly confined to his area of practice,
13
but may testify concerning related applications; a lack of specialization does not affect
the admissibility of the opinion, but only its weight.” Id. at 168-69. Regardless of its
source, “the witness’s . . . specialized knowledge,” must be “sufficiently related to the
issues and evidence before the trier of fact that the witness’s proposed testimony will
help the trier of fact.” Id. at 167.
Baker notes that Lorenzo admitted that he has only worked on one insurance
claim involving an HCl spill, and that he has no other training, experience, or
education concerning HCl spills. See Exhibit C [145-3], at 32-33. However, Lorenzo is
a metallurgist, and he has a Ph.D. in “Materials Science and Engineering.” Exhibit 2
[166-2], at 25. He has worked with insurance companies providing damage estimates
to commercial property owners. Exhibit C [145-3], at 49.
The Court believes that Lorenzo has sufficient education and experience to
provide expert testimony regarding the damage to Plaintiff’s property caused by the
HCl spill. His expertise in mechanical engineering and metallurgy is applicable to
the issues presented here, and he has experience providing damage estimates on
commercial properties. His admitted lack of specific experience with HCl goes to the
weight of his testimony, rather than its admissibility.
B.
Reliability
Next, Baker argues that Lorenzo’s opinions are not reliable. The reliability of
proposed expert testimony “is determined by assessing whether the reasoning or
methodology underlying the testimony is scientifically valid.” Knight v. Kirby Inland
14
Marine, Inc., 482 F.3d 347, 352 (5th Cir. 2007). As noted above, “the expert’s
testimony must be reliable at each and every step or it is inadmissible.” Seaman, 326
F. App’x at 725. Baker made several arguments regarding the reliability of Lorenzo’s
opinions. The Court will address each in turn.
1.
Errors in Report
First, Baker argues that Lorenzo’s opinions regarding the damage to Plaintiff’s
property are unreliable because his report includes several factual errors. Lorenzo
admitted the errors during his deposition and corrected them. Exhibit C [145-3], at
27-29. “[A] few scattered errors in an expert report are not necessarily grounds for
exclusion,” particularly where the expert admitted the errors and corrected them
during discovery. Moore v. Int’l Paint, LLC, 547 F. App’x 513, 516 (5th Cir. 2013); cf.
Marsh v. Wallace, 2008 WL 4000809, at *6-*7 (S.D. Miss. Aug. 22, 2008) (in bench
trial, court declined to exclude expert’s opinions because of errors in figures). Baker
is free to cross-examine Lorenzo regarding the errors, but the Court will not exclude
his opinions on this basis alone.
2.
Loss of Useful Life – Roofs
Next, Baker argues that the Court should exclude all of Lorenzo’s opinions
regarding the loss of useful life to the roofs on Plaintiff’s metal buildings. The roofing
panels were made of galvanized steel, which is steel coated with zinc. Lorenzo stated
that the HCl vapors eroded the zinc coating on the roofing panels, reducing their
useful life. Baker asserted several arguments as to why the Court should exclude
15
Lorenzo’s opinions on this issue. The Court will address each one.
i.
Personal Inspection & Reliance on Third Party Data
First, Baker argues that the Court should exclude Lorenzo’s opinions
regarding the roofs’ loss of useful life because he did not personally inspect them.
Instead, he relied on data gathered by another expert. “A personal examination of the
person or object of the expert’s testimony is not required under” the Rules of Evidence.
Peteet v. Dow Chem. Co., 868 F.2d 1428, 1432 (5th Cir. 1989). “[E]xperts often rely on
facts and data supplied by third parties.” Bryan v. John Bean Division of FMC Corp.,
566 F.2d 541, 545 (5th Cir. 1978). In short, the Court’s chief concern is the data’s
sufficiency to support the expert’s conclusions, rather than its source. This issue goes
to the weight of the testimony, rather than its admissibility.
ii.
Testing
Next, Baker argues that the Court should exclude Lorenzo’s opinions regarding
the roofs’ loss of useful life because he did not perform any testing to determine the
thickness of the zinc coating on the metal panels. Based on his knowledge of industry
standards, Lorenzo initially assumed that the roofing panels had a zinc coating
consistent with “G60” panels. Exhibit C [145-3], at 27; Exhibit 2 [166-2], at 4. He then
applied an equation based on the chemical reaction between HCl and zinc to
determine how much of the zinc would have been consumed by HCl. Exhibit 2 [1662], at 3. He used a pH level consistent with some of the third-party samples taken
from the scene. Id. Lorenzo later confirmed that the panels were “G60” panels, but he
16
learned (from Baker’s expert) that the zinc coating on “G60” panels was thinner than
he had originally believed. Id. at 4. He revised his calculations accordingly. Id.;
Exhibit C [145-3], at 27.
An expert’s failure to conduct testing does not necessarily render his opinion
unreliable. See, e.g. United States v. Garcia-Vargas, 667 F. App’x 491, 492 (5th Cir.
2016) (district court did not err in admitting expert testimony that litigant argued
should have been tested more); Barnett v. Deere & Co., 2016 WL 6652750, at *2 (S.D.
Miss. Nov. 10, 2016) (expert not required to test alternative design in product liability
case); Hankins v. Ford Motor Co., 2011 WL 6046304, at *4 (S.D. Miss. Dec. 5, 2011)
(expert was not required to test his opinions for them to be admissible). Here,
Lorenzo’s determinative process was logical and based on fundamental chemistry.
His failure to conduct testing to confirm the loss of zinc coating goes to the weight of
his testimony, rather than its admissibility.
iii.
Factual Basis & Connection to Conclusion
Finally, Baker presented several arguments which challenge the factual basis
of Lorenzo’s opinions, as well as the connection between those facts and Lorenzo’s
conclusions. First, Baker argues that Lorenzo relied upon insufficient data to form
his opinions. Lorenzo relied on samples taken by Richard Edwards, an engineer hired
by Travelers. Edwards only took twelve usable samples from the Plaintiff’s property,
and only six of the samples were from roofs. Exhibit E to Motion to Exclude at 43,
Burroughs Diesel, Inc. v. Baker Petrolite, LLC, No. 2:18-CV-26-KS-MTP (S.D. Miss.
17
June 20, 2019), ECF No. 145-5. Beyond cursory descriptions in the chart Edwards
provided, Lorenzo did not know where the samples were taken. Exhibit C [145-3], at
40-42. Also, Edwards only confirmed or denied the presence of chlorides, an indicator
of HCl exposure, and Lorenzo did not know the concentration of chlorides in any
sample. Exhibit E [145-5], at 43; Exhibit C [145-3], at 61.
Next, Baker argues that Lorenzo improperly extrapolated Edwards’
incomplete sampling data to all roofs on Plaintiff’s property. In other words, Baker
argues Lorenzo assumed that every metal roof on Plaintiff’s property was exposed to
the same concentration of HCl, based on a limited number of data points. In fact,
Lorenzo acknowledged this inferential leap in his report, noting that Edwards’ data
“clearly confirms that . . . almost every surface . . . was exposed to the highly corrosive
effect of the Hydrochloric Acid vapors released from Baker Petrolite.” Exhibit B to
Motion in Limine at 6, Burroughs Diesel, Inc. v. Baker Petrolite, LLC, No. 2:18-CV26-KS-MTP (S.D. Miss. June 20, 2019), ECF No. 145-2. He took the inference a step
further when calculating the roofs’ loss of zinc coating. Lorenzo assumed that the
roofs were exposed to HCl solution with a pH value of 1.0, id. at 7, but Edwards only
recorded a single sample with a pH value of 1.0 – from the surface of an ice machine,
rather than from a roof. Exhibit E [145-5], at 43.
Finally, Baker argues that Lorenzo’s opinion regarding the roofs’ loss of useful
life is complete speculation. Lorenzo assumed that the reduction in the useful life of
the metal roofing panels was equal to his calculated reduction in the zinc coating on
18
the panels, without articulating any methodology or reasoning to support such an
inference. Exhibit B [145-2], at 7.
In response to these issues with Lorenzo’s testimony, Plaintiff notes that
Lorenzo’s opinions regarding the roofs’ loss of useful life are supported by calculations
based on samples taken from the site, known chemical reactions between zinc and
HCl, and the undisputed thickness of the zinc coating on the steel roofing panels.
Plaintiff contends that Baker’s problems with Lorenzo’s testimony are just “fodder
for cross-examination,” rather than grounds for exclusion.
Rule 702 specifically requires that an expert’s testimony be based upon
sufficient facts or data. FED. R. EVID. 702(b). Phrased differently, proposed expert
testimony “must be supported by appropriate validation – i.e. good grounds, based on
what is known.” Daubert, 509 U.S. at 509 (punctuation omitted). “Where an expert’s
opinion is based on insufficient information, the analysis is unreliable.” Paz, 555 F.3d
at 388; see also Seaman, 326 F. App’x at 725. Therefore, expert testimony must be
supported by “more than subjective belief or unsupported speculation.” Paz, 555 F.3d
at 300. “Although the Daubert reliability analysis is flexible and the proponent of
expert testimony need not satisfy every one of its factors, the existence of sufficient
facts is . . . in all cases mandatory,” Moore, 547 F. App’x at 515, and “a district court
has broad discretion to determine whether a body of evidence relied upon by an expert
is sufficient to support that expert’s opinion.” Knight, 482 F.3d at 354. “Overall, the
trial court must strive to ensure that the expert, whether basing testimony on
19
professional studies or personal experience, employs in the courtroom the same level
of intellectual rigor that characterizes the practice of an expert in the relevant field.”
Valencia, 600 F.3d at 424.
Moreover, while “reliable expert testimony often involves estimation and
reasonable inferences from a sometimes incomplete record,” an expert may not make
“numerous assumptions with no apparent underlying rationale.” Moore, 547 F. App’x
at 516. Experts can build up to conclusions through basic scientific premises, but “the
extrapolation or leap . . . must be reasonable and scientifically valid.” Moore, 151 F.3d
at 279. “[C]ourts are free to reject a theory based on extrapolation when ‘there is
simply too great an analytical gap between the data and the opinion proffered.’”
Johnson v. Arkema, Inc., 685 F.3d 452, 460-61 (5th Cir. 2012) (quoting Joiner, 522
U.S. at 146). As noted above, “nothing in either Daubert or the Federal Rules of
Evidence requires a district court to admit opinion evidence connected to existing
data only by the ipse dixit of the expert.” Joiner, 522 U.S. at 146.
Here, Plaintiff has not offered any substantial opposition to Baker’s argument.
Plaintiff doesn’t dispute that Lorenzo based his opinions regarding the metal roofs on
a limited number of samples from a variety of surfaces throughout Plaintiff’s
property. Likewise, Plaintiff does not dispute that Lorenzo doesn’t know where the
samples were taken or the concentration of chlorides in each sample.
Even if the Court agreed with Plaintiff that the problems with the data go to
the weight of Lorenzo’s testimony, rather than its admissibility, his conclusions still
20
rest on various unsupported inferences and extrapolations. He assumed that the HCl
exposure level of every metal roof was at least the same as that of an ice machine. He
reasoned that the roofs would have actually received more exposure to HCl than the
ice machine because they were not under cover, and that the ice machine sample had
a lower pH than the roof samples because the roofs had been exposed to rain during
the two weeks between the spill and Edwards’ inspection. Lorenzo also assumed that
the reduction in the useful life of the metal roofing panels was equal to his calculated
reduction in the zinc coating on the panels, without articulating any methodology or
reasoning to support such an inference.
The Court finds that Lorenzo’s opinions regarding the remaining useful life of
the metal roofing panels is unreliable because of the combination of 1) their sketchy
factual basis, and 2) Lorenzo’s unsupported inferences and extrapolations from the
already limited facts. The Court grants Baker’s motion as to this issue.
3.
Loss of Useful Life – Side Panels
Next, Baker argues that the Court should exclude Lorenzo’s opinions regarding
the loss of useful life of the side panels on Plaintiff’s metal buildings. First, Baker
argues that Lorenzo based his opinion on insufficient data. As noted above, Lorenzo
relied on samples taken by Richard Edwards, a consultant hired by Travelers.
Edwards only took twelve usable samples from Plaintiff’s property, and Lorenzo
doesn’t know whether any of them are from the side panels of Plaintiff’s metal
buildings. Exhibit E [145-5], at 43; Exhibit C [145-3], at 40-42. Regardless, Edwards
21
only confirmed or denied the presence of chlorides, an indicator of HCl exposure, and
Lorenzo doesn’t know the concentration of chlorides at any specific location on the
property. Exhibit E [145-5], at 43; Exhibit C [145-3], at 61.
Baker also argues that Lorenzo’s opinions on the side panels are unreliable
because he relied on a single unreliable source. During his deposition, Lorenzo
admitted that the only basis for his opinion that the painted metal side panels had
lost 50% of their useful life was an article from www.hunker.com, a do-it-yourself
home repair website. Exhibit C [145-3], at 47-48. The record contains no evidence
that this is the sort of authority typically relied on by experts in the fields of
metallurgy and/or mechanical engineering. See Valencia, 600 F.3d at 424.
Finally, Baker notes that Lorenzo provided no basis whatsoever for his
assumption that the side panels had lost 50% of their useful life. With respect to the
roofs, he performed calculations based on the chemical reaction between HCl and
zinc. He performed no such calculation with respect to the paint on the side panels,
and expressed no opinion as to the amount of paint eroded by HCl. He noted that
some paints include metal compounds, and, therefore, he assumed that the HCl
would react with the paint in the same way it theoretically reacted with the zinc on
the roofing panels. Exhibit C [145-3], at 66. But he did not identify any metal
compounds in the paint on the side panels or perform calculations as he did with the
roofing panels. He assumed that there were metals in the paint and pulled a number
out of thin air as to the amount of paint eroded by HCl. See id. at 48, 66. Then he
22
assumed – without articulating any supporting methodology or rationale – that a loss
of 50% of the paint would cause a 50% loss in the useful life of the side panels.
The Court excludes Lorenzo’s opinion regarding the loss of useful life of the
metal buildings’ side panels because 1) he failed to demonstrate that the single source
he relied on in support of his opinion was the sort typically relied on by experts in his
field, and 2) his failure to articulate a methodology or rationale in support of opinions
regarding the amount of paint eroded and loss of useful life. The Court grants Baker’s
motion as to this issue.
4.
Cost to Replace Tools and Equipment
Next, Baker argues that the Court should exclude Lorenzo’s opinion that
“approximately 70% of the tools and components included in [Plaintiff’s] list would
require replacement as a result of having been exposed to Acid attack.” Exhibit B
[145-2], at 8.
Lorenzo did not personally observe any HCl damage on any tool or equipment.
In preparing his report, he relied on photographs of tools and equipment taken by
other experts that showed corrosion, rust, and pitting on various metal tools,
equipment, and components. Exhibit C [145-3], at 63-64. He also testified that
Plaintiff provided a list of tools and equipment that were not damaged before the
spill, but had to be replaced after the spill. Id. at 51, 63-64.
Lorenzo explained that tools made with chrome plating or stainless steel would
be susceptible to damage if exposed to HCl. He testified that “exposure to hydrochloric
23
acid vapors will induce some corrosion and possible failures due to stress corrosion
cracking . . . .” Exhibit C [145-3], at 49. But he could not identify any specific tool with
“stress corrosion cracking.” Id. at 49-50. He admitted that he did not inspect any tools
or equipment. Id. at 50. Instead, Lorenzo assumed that everything on the property
was exposed to HCl vapor because the Edwards report “indicated that most of – or all
the surfaces . . . have traces of chloride.” Id. at 52. According to Lorenzo, “[t]hat is
confirmation that hydrochloric acid was in contact with most of the surfaces of the . .
. Burroughs facility,” and such contact can cause corrosion in stainless steel and
chrome tools, as well as electrical and electronic components. Id.
The Court denies this aspect of Baker’s motion. Lorenzo’s opinion rests on
reasonable – yet not perfect – premises and data. Unlike his opinions regarding the
loss of useful life of the metal roofing and side panels, there is no massive gap between
steps in his reasoning process. The biggest hole in his reasoning is the assumption
that HCl touched everything on the property, but he apparently shares that opinion
with Edwards, another party’s expert. Moreover, photographs taken by Edwards
confirm corrosion and/or rust on some of the tools and equipment, and Plaintiff’s
descriptions of equipment failures and tool damage is consistent with HCl exposure,
as described by Lorenzo. Neither Lorenzo’s failure to personally inspect every tool,
nor his reliance on information provided to him by Plaintiff are fatal to his analysis.
Rather, these are all matters to be addressed in cross-examination, and the jury is
free to weigh them as it deems fit.
24
5.
Repair Invoices/Estimates
Finally, Baker argues that the Court should exclude Lorenzo’s opinions
regarding various other repair costs already incurred by Plaintiff.
i.
Generators
Baker argues that the Court should exclude Lorenzo’s opinion that Plaintiff’s
repairs to generators were related to the HCl spill because Lorenzo did not personally
observe any damage to the generators. The repairs had already been performed when
he inspected the generators. Exhibit C [145-3], at 55.
Plaintiff did not direct the Court to any specific testimony or record evidence
regarding the basis of Lorenzo’s opinion that the damage to the generators was
caused by the HCl spill. Plaintiff cites Lorenzo’s general testimony regarding the
effect of HCl on electric and electronic components. See id. at 49-53. Lorenzo
apparently relied on what Plaintiff told him about the condition of the generators
before they were repaired. However, Lorenzo’s deposition transcript contains no
mention of that predicate information. The Court doesn’t know what Plaintiff told
Lorenzo about the generators’ condition before repairs, or how Lorenzo then drew the
conclusion that the problems were caused by the HCl spill. Therefore, the Court
concludes that Plaintiff has not carried its burden of demonstrating that Lorenzo’s
opinion regarding the damage to the generators is reliable.
ii.
Wrecker Trucks
Next, Baker argues that the Court should exclude any opinion from Lorenzo
25
about repairs to the wrecker trucks being related to the HCl spill. Lorenzo denied
having inspected any wrecker trucks, and he testified that he had no opinion
regarding the cause of any damage to them. Id. at 55; Exhibit G to Motion to Exclude
at 3-4, Burroughs Diesel, Inc. v. Baker Petrolite, LLC, No. 2:18-CV-26-KS-MTP (S.D.
Miss. June 20, 2019), ECF No. 145-7. Lorenzo specifically denied having formed any
opinion regarding the cause of any alleged damage to the wrecker trucks. Therefore,
the Court grants this aspect of Baker’s motion.
iii.
Tires/Equipment in Wrecker Building
Baker also argues that the Court should exclude any opinion from Lorenzo that
Plaintiff’s replacement of tires on equipment/vehicles in the wrecker building was
caused by exposure to HCl. Lorenzo denied having any opinion regarding the cause
of any damage to the tires on vehicles and/or equipment in the wrecker building.
Exhibit C [145-3], at 55; Exhibit G [145-7], at 3-4. Therefore, the Court grants this
aspect of Baker’s motion.
iv.
Tires on Forklifts
Baker argues that the Court should exclude any opinion from Lorenzo that
Plaintiff had to replace the tires on the forklifts because of the HCl spill. Lorenzo
denied having any opinion regarding the cause of any damage to the tires on the
forklift. Exhibit C [145-3], at 55; Exhibit G [145-7], at 3-4. Therefore, the Court grants
this aspect of Baker’s motion.
26
v.
Miscellaneous
Plaintiff’s list of damages includes a list of “Miscellaneous Repairs/Quotes for
Damages.” See Exhibit B to Motion for Summary Judgment at 5-6, Burroughs Diesel,
Inc. v. Baker Petrolite, LLC, No. 2:18-CV-26-KS-MTP (S.D. Miss. June 20, 2019), ECF
No. 147-2. Baker argues that the Court should exclude any testimony from Lorenzo
that the damage to these items was caused by the HCl spill. Lorenzo admitted that
he did not personally inspect the listed equipment. Exhibit C [145-3], at 55. He only
viewed repair invoices and relied on what Plaintiff told him. In response, Plaintiff
cites Lorenzo’s general testimony regarding the effect of HCl on electric and electronic
components. See id. at 49-53.
With respect to the replacement of halogen light kits, see Exhibit G [145-7], at
5, Lorenzo testified that Plaintiff told him that the halogen lights started having
“accelerated failures” that were consistent with the corrosion of electric and electronic
components Lorenzo described earlier in the deposition. Exhibit C [145-3], at 55. This
is sufficient to admit the testimony. Baker is free to cross-examine Lorenzo regarding
his lack of any first-hand observation of the damage to the lights.
However, with respect to the remaining items listed in the miscellaneous
section of the damage list – HVAC, surveillance system, electrical and machine
repairs, cable replacement, forklift and loader repair – Plaintiff has not provided any
evidence of the predicate information relied upon by Lorenzo in forming his opinions.
The Court doesn’t know what Plaintiff told Lorenzo about the items’ conditions before
27
repairs, or how Lorenzo then drew the conclusion that the problem was caused by the
HCl spill. Therefore, the Court concludes that Plaintiff has not carried its burden of
demonstrating that Lorenzo’s opinion regarding the damage to the remaining
miscellaneous items is reliable.
C.
Relevance
Finally, Baker argues that Lorenzo’s opinion regarding the cost to remove and
replace the roofs and side panels on the metal buildings is irrelevant. Baker notes
that Lorenzo testified that the roofs could be re-galvanized and the side panels
repainted. See Exhibit C [145-3], at 47, 49. Therefore, Baker argues that Lorenzo’s
opinion regarding the cost to remove and replace the roofs and side panels is
irrelevant because he did not demonstrate that replacement is necessary.
The Court denies this aspect of Baker’s motion. Although replacement of the
roofs and side panels may not be necessary, it may nevertheless be prudent and/or
desirable, depending on the extent and nature of the damage to the existing panels. 1
The fact that the damage can be repaired does not remove replacement from the table
as an option.
IV. MOTION TO EXCLUDE TESTIMONY OF CRADDOCK AND LORENZO [137]
Defendant Poly Processing Company, LLC (“Poly”) filed a Motion to Exclude
[137] certain testimony from Plaintiff’s experts, Roger Craddock and Fernando
Lorenzo. For the reasons below, the Court denies the motion.
See the Court’s discussion below regarding the measure of damages in actions for damage to real
property.
1
28
A.
Testimony Re: Manufacturing Defect
First, Poly argues that Plaintiff did not disclose any expert opinions related to
the product liability claims asserted against it. In Count Six of the Complaint,
Plaintiff asserted claims governed by the Mississippi Products Liability Act
(“MPLA”). 2 Complaint at 13-14, Burroughs Diesel, Inc. v. Baker Petrolite, LLC, No.
2:18-CV-26-KS-MTP (S.D. Miss. Feb. 21, 2018), ECF No. 1. Specifically, Plaintiff
alleged that tank holding the HCl was defectively manufactured. Id. 3
To succeed on a manufacturing defect claim, a plaintiff must show, at the time
the product left the control of the manufacturer or seller: (1) the product deviated in
a material way from the manufacturer’s specifications or from otherwise identical
units manufactured to the same manufacturing specifications; (2) the defective
condition rendered the product unreasonably dangerous to the user or consumer; and
(3) the defective and unreasonably dangerous condition of the product proximately
caused the damages for which recovery is sought. MISS. CODE ANN. § 11-1-63(a).
Lorenzo and Craddock stated in their report that “the crack in the bottom of
the tank was a large semi-elliptical fatigue crack that initiated at a manufacturing
flaw in the tank’s bottom.” Exhibit F at 13, Burroughs Diesel, Inc. v. Baker Petrolite,
LLC, No. 2:18-CV-26-KS-MTP (S.D. Miss. June 12, 2019), ECF No. 135-6. Later in
Plaintiff argues that all of his claims against Poly are not governed by the MPLA. The Court will
address this issue in more detail below, but Plaintiff is mistaken.
3 Plaintiff also alleged that the tank was defectively designed, but it conceded the design defect claim
in response to Poly’s motion for summary judgment. See Response to Motion for Summary Judgment
at 7, Burroughs Diesel, Inc. v. Baker Petrolite, LLC, No. 2:18-CV-26-KS-MTP (S.D. Miss. July 3,
2019), ECF No. 161.
2
29
the report, they described the “origin of the crack/rupture” as a “small void in the
plastic that resulted from a casting defect . . . .” Id. at 15. According to Lorenzo and
Craddock, the “tank’s rupture originated from a weak area in the bottom of the tank
and grew over time when the tank was pressurized during filling.” Id.
Lorenzo echoed this opinion during his deposition. He testified that the “initial
void was – basically a pore spherical defect in the tank that eventually, due to the
overstress, it would develop into a crack. And then it started growing.” Exhibit C [1453], at 5. Lorenzo affirmed that but for the void in the bottom in the tank, the crack
would not have developed. Id. at 4. But he also admitted that no crack would have
initiated from the void under “normal loading conditions.” Id. at 6.
Craddock confirmed during his deposition that to initiate a crack, there would
had to have been both over-pressurization and an “anomaly in the tank.” Exhibit C
to Motion for Summary Judgment at 5, Burroughs Diesel, Inc. v. Baker Petrolite, LLC,
No. 2:18-CV-26-KS-MTP (S.D. Miss. June 12, 2019), ECF No. 135-3. He explicitly
testified: “[A]bsent the void there, under the circumstances or the exposure of this
tank, the cracks should not have occurred.” Id. But he also testified that the tank
would not have failed but for over-pressurization/over-filling. Id. at 5-6, 24. He
explained:
There is an anomaly in the bottom of the tank. The tank has an
overpressure that occurs sufficient enough to initiate the crack at that
anomaly. And once you start the crack at that time, you’ve got less
strength, less availability to resist pressures being applied to the tank
itself.
30
And so as you continue to use the tank, whether you overfill it, whether
you don’t overfill it, but what occurs is over the exposure to the
hydrostatic pressure and any other potential pressures internal to the
tank, the crack begins to manifest and it grows.
As it grows, it gets weaker and weaker and weaker until at some point
it’s going to go all the way through to rupture, which is what occurred
here.
Id. at 6.
These opinions regarding an air bubble or void in the polyethylene storage tank
are relevant to Plaintiff’s manufacturing defect claim. Craddock and Lorenzo testified
that a crack would not have formed in the tank but for the air bubble, an alleged
manufacturing defect. Therefore, the Court rejects the premise of Poly’s argument.
Plaintiff has, in fact, disclosed opinions from Lorenzo and Craddock regarding the
existence of a manufacturing defect.
B.
Qualification
Next, Poly argues that neither Lorenzo nor Craddock are qualified to offer an
opinion that an alleged manufacturing defect caused the tank to rupture. As noted
above, Rule 702 provides that an expert may be qualified by “knowledge, skill,
experience, training, or education . . . .” FED. R. EVID. 702. But a proposed expert does
not have to 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.” Huss, 571 F.3d at 452; see also Williams v. Manitowoc
Cranes, LLC, 898 F.3d 607, 623-24 (5th Cir. 2018). Lack of personal experience is not
disqualifying, as long as “the expert is qualified based on some other factor provided
31
by Rule 702 . . . .” Wen Chyu Liu, 716 F.3d at 168. Likewise, expert witnesses are not
“strictly confined to [their] 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.” Id. at 168-69. “[T]he witness’s . . . specialized knowledge,” must
be “sufficiently related to the issues and evidence before the trier of fact that the
witness’s proposed testimony will help the trier of fact.” Id. at 167.
Lorenzo is a metallurgist, and he has a Ph.D. in “Materials Science and
Engineering.” Exhibit 2 [166-2], at 25. Moreover, Poly admits that Lorenzo is
qualified to offer the opinions in the expert report dated March 26, 2019. Exhibit F
[135-6]. As explained above, the report contains opinions that a manufacturing defect
– the air bubble, or void – was a proximate cause of the HCl spill. Therefore, the Court
believes that Lorenzo has sufficient education to provide expert testimony regarding
the cause of the HCl spill – specifically, that the air bubble or void in the tank was a
proximate cause of the spill. His expertise in mechanical engineering and metallurgy
is applicable to the issues presented here. His admitted lack of specific experience
with polyethylene tanks goes to the weight of his testimony, rather than its
admissibility.
Craddock has a B.S. in Civil Engineering, and he has been a practicing
engineer, licensed in multiple states, for over fifty years. Exhibit F [135-6], at 60-61.
He “specializes in failure analysis and accident investigation in matters involving
petrochemical, natural gas and propane facilities, petroleum refineries, oil field and
32
pipeline operations, marine and offshore structures, and heavy construction.” Id. at
60. He has investigated thousands of industrial incidents, id. at 60, 63-64, including
approximately one hundred “tank failures” and at least a dozen polyethylene “tank
failures.” Exhibit C [135-3], at 3. Finally, Poly admits that Craddock is qualified to
offer the opinions in the report dated March 26, 2019, and the report clearly states
that a manufacturing defect – the air bubble, or void – was a proximate cause of the
HCl spill. Therefore, the Court concludes that Craddock has sufficient education and
experience to provide expert testimony that the air bubble or void in the tank was a
proximate cause of the spill. His lack of specific experience designing and/or
manufacturing polyethylene tanks goes to the weight of his testimony, rather than
its admissibility.
For these reasons, the Court denies Poly’s Motion to Exclude [137] certain
testimony by Plaintiff’s proposed experts, Fernando Lorenzo and Roger Craddock. 4
V. MOTION TO EXCLUDE TESTIMONY OF GALE HOFFNAGLE [140]
Plaintiff filed a Motion to Exclude [140] certain testimony by Gale Hoffnagle,
Baker’s proposed meteorology expert. For the reasons provided below, the Court
denies the motion.
A.
Qualification
First, Plaintiff argues that Hoffnagle is not qualified to offer any opinions
Poly’s reply brief contains arguments regarding the disclosure and reliability of Craddock’s
opinions regarding Poly’s inspections during the manufacturing process. These arguments were not
presented in Poly’s initial brief. Therefore, the Court will not address them. Wallace v. County of
Comal, 400 F.3d 284, 292 (5th Cir. 2005).
4
33
estimating the concentration of HCl in the vapor cloud produced by the spill, the
chemical effect of water vapor and/or soda ash on the HCl vapor cloud, or the effect
of the HCl vapor cloud on Plaintiff’s property. The Court disagrees.
Baker presented Hoffnagle’s affidavit, in which he claims to have “practiced
atmospheric chemistry for the past fifty years.” Exhibit A to Response at 1, Burroughs
Diesel, Inc. v. Baker Petrolite, LLC, No. 2:18-CV-26-KS-MTP (S.D. Miss. July 1, 2019),
ECF No. 156-1. He is also a “member of the American Institute of Chemical
Engineers,” and he studied atmospheric chemistry at New York University, including
graduate work. Id. at 2. Finally, his undisputed qualifications in the field of
meteorology are applicable to these issues. Therefore, the Court concludes that
Hoffnagle has sufficient education and experience to provide expert testimony
regarding the concentration of HCl in the vapor cloud produced by the spill, and the
chemical effect of water vapor and/or soda ash on the HCl vapor cloud. Plaintiff’s
objections to his qualifications go to the weight of his testimony, rather than its
admissibility. As for the effect of the HCl vapor cloud on Plaintiff’s property, Plaintiff
has not identified – and the Court has not seen – any opinions from Hoffnagle
regarding the alleged damage to Plaintiff’s property. Therefore, Plaintiff’s objection
on this point is moot.
B.
Reliability
Next, Plaintiff argues that Hoffnagle’s opinions regarding the strength and
concentration of HCl in the vapor cloud are unreliable. Specifically, Plaintiff argues
34
that Hoffnagle admitted that he did not know the rate and duration of the HCl spill,
or the size of the vapor cloud. Accordingly, Plaintiff contends that Hoffnagle has no
way of accurately calculating whether the concentration of the HCl was reduced by
water vapor or soda ash.
Hoffnagle intends to testify that “[e]vaporation of the acid into the saturated
air created the cloud and reduced the strength of the released acid through the
addition of atmospheric water vapor into the cloud. The strength of the acid in the air
would also have been reduced by the use of soda ash to neutralize the acid.” Exhibit
B to Motion to Exclude at 8, Burroughs Diesel, Inc. v. Baker Petrolite, LLC, No. 2:18CV-26-KS-MTP (S.D. Miss. June 17, 2019), ECF No. 140-2. In support of this opinion,
he acknowledged that the rate and duration of HCl discharge is unknown. Id. at 7.
He noted that “evaporation of hydrochloric acid into the air is a non-trivial calculation
because of the competing evaporation of water and hydrogen chloride” in the HCl
solution. Id. However, he stated that evaporation occurred because “a cloud
appear[ed] in the air.” Id. “As the evaporate rises it meets the atmosphere which is
completely saturated, 100% relative humidity . . . . Thus, the water vapor in the air
is being added to the cloud,” which “will reduce the strength of the HCl in the air . . .
by an unknown amount.” Id. at 7-8. Likewise, “the 89 bags of soda ash used to
neutralize the acid” would have also reduced the acid concentration by an unknown
amount. Id. at 8.
The Court concludes that Hoffnagle’s opinions are reliable, as far as they go.
35
He didn’t attempt to calculate the specific concentration of the HCl in the vapor cloud
or propose that water vapor and soda ash reduced the concentration by a specific
amount. He only stated that water vapor and soda ash would have reduced the
concentration by an unknown amount. His reasoning is sound, and it supports his
limited conclusions.
VI. MOTION TO EXCLUDE TESTIMONY OF JAMES KOERBER [142]
Plaintiff filed a Motion to Exclude [142] certain testimony by Baker’s expert,
James Koerber. Specifically, Plaintiff argues that the Court should exclude Koerber’s
opinion that the metal buildings’ alleged loss of value will be realized in the future
and, therefore, should be discounted to present value. Plaintiff contends that the
opinion is both irrelevant and unreliable.
The Court denies this motion as moot. As explained below, Plaintiff can not
meet its burden of proving the amount of damage to the metal buildings with
reasonable certainty, and the Court grants Baker’s motion for summary judgment as
to that element of damages. Therefore, the Court assumes Baker will not offer
Koerber’s testimony on this issue, and the Court need not address Plaintiff’s
arguments.
VII. MOTION FOR SUMMARY JUDGMENT AS TO POLY [135]
Defendant Poly filed a Motion for Summary Judgment [135] as to Plaintiff’s
claims against it. In Count Six of the Complaint, Plaintiff asserted product liability
claims against Poly. Plaintiff contends that Poly negligently manufactured and/or
36
designed the polyethylene tank that contained the HCl. Specifically, Plaintiff alleges
that the tank had a “void in the bottom of the tank . . . which weakened this area
below the required design capacity and made this weakened area likely to rupture
and explode from pressurization and/or over-pressurization.” Complaint [1], at 13.
Poly contends that Plaintiff does not have enough evidence to support its claims.
Rule 56 provides that “[t]he court shall grant summary judgment if 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); see also Sierra Club,
Inc. v. Sandy Creek Energy Assocs., L.P., 627 F.3d 134, 138 (5th Cir. 2010). “Where
the burden of production at trial ultimately rests on the nonmovant, the movant must
merely demonstrate an absence of evidentiary support in the record for the
nonmovant’s case.” Cuadra v. Houston Indep. Sch. Dist., 626 F.3d 808, 812 (5th Cir.
2010) (punctuation omitted). The nonmovant “must come forward with specific facts
showing that there is a genuine issue for trial.” Id. “An issue is material if its
resolution could affect the outcome of the action.” Sierra Club, 627 F.3d at 138. “An
issue is ‘genuine’ if the evidence is sufficient for a reasonable jury to return a verdict
for the nonmoving party.” Cuadra, 626 F.3d at 812.
The Court is not permitted to make credibility determinations or weigh the
evidence. Deville v. Marcantel, 567 F.3d 156, 164 (5th Cir. 2009). When deciding
whether a genuine fact issue exists, “the court must view the facts and the inference
to be drawn therefrom in the light most favorable to the nonmoving party.” Sierra
37
Club, 627 F.3d at 138. However, “[c]onclusional allegations and denials, speculation,
improbable inferences, unsubstantiated assertions, and legalistic argumentation do
not adequately substitute for specific facts showing a genuine issue for trial.” Oliver
v. Scott, 276 F.3d 736, 744 (5th Cir. 2002).
A.
“Negligent Manufacturing”
In response to Poly’s motion, Plaintiff argues that it asserted a “common law
negligence” claim against Poly which was not subsumed by the Mississippi Products
Liability Act (“MPLA”). The MPLA “provides the exclusive remedy in any action for
damages caused by a product against a product manufacturer, designer, or seller.”
Funches v. Progressive Tractor & Implement Company, LLC, 905 F.3d 846, 850 (5th
Cir. 2018) (citing Elliott v. El Paso Corp., 181 So. 3d 263, 270 (Miss. 2015); MISS. CODE
ANN. § 11-1-63(a)) (punctuation omitted). Accordingly, the Mississippi Supreme
Court has held that the “MPLA has abrogated products-liability claims based on
strict-liability or negligence theories . . . .” Elliott, 181 So. 3d at 268. Therefore, as all
of Plaintiff’s “negligence . . . claims are based on the damages purportedly caused by
alleged defects in the” polyethylene tank, the Court “must analyze those claims under
the MPLA.” Id. at 269. 5
B.
Design Defect
Next, Poly argues that Plaintiff has no evidence of a design defect in the HCl
Joiner v. BCAM Self-Insurer’s Fund, No. 1:09-CV-93-GHD-DAS, 2012 WL 567201, at *2-*3 (N.D.
Miss. Feb. 21, 2012), cited by Plaintiff, is inapplicable because it pre-dates the Mississippi
legislature’s 2014 amendment of the MPLA. See Funches, 905 F.3d at 850; Elliott, 181 So. 3d at 268.
5
38
tank. Plaintiff conceded this claim in its response to Poly’s motion. Therefore, the
Court grants Poly’s motion with respect to any design defect claim against Poly
asserted in the Complaint.
C.
Manufacturing Defect
Poly also argues that Plaintiff has insufficient evidence to support a
manufacturing defect claim.
1.
Defect
First, Poly argues that Plaintiff has no evidence that the HCl tank had a
“defective condition,” as required by the MPLA. When a plaintiff asserts a
manufacturing defect claim:
The manufacturer . . . of the product shall not be liable if the claimant
does not prove by the preponderance of the evidence that at the time the
product left the control of the manufacturer . . . :
(i) . . . The product was defective because it deviated in a material
way from the manufacturer’s . . . specifications or from otherwise
identical units manufactured to the same manufacturing
specifications, . . . ; and
(ii) The defective condition rendered the product unreasonably
dangerous to the user or consumer; and
(iii) The defective and unreasonably dangerous condition of the
product proximately caused the damages for which recovery is
sought.
MISS CODE ANN. § 11-1-63(a).
Poly argues that Plaintiff has no evidence that the tank “deviated in a material
way from the manufacturer’s . . . specifications or from otherwise identical units
39
manufactured to the same manufactured specifications . . . .” MISS. CODE ANN. § 111-63(a)(i)(1). However, the record contains evidence of a “small void in the plastic that
resulted from a casting defect” in the polyethylene tank. See Exhibit F [135-6], at 15.
Both Plaintiff’s experts and Baker’s expert noted the defect. See Exhibit B to
Response at 25, Burroughs Diesel, Inc. v. Baker Petrolite, LLC, No. 2:18-CV-26-KSMTP (S.D. Miss. Aug. 14, 2019), ECF No. 182-2; Exhibit F [135-6], at 15. The record
contains evidence that Poly conducts testing on tanks after they are manufactured to
identify such flaws in tanks after casting. Exhibit C [135-3], at 21; Exhibit B to Motion
for Summary Judgment at 5, Burroughs Diesel, Inc. v. Baker Petrolite, LLC, No. 2:18CV-26-KS-MTP (S.D. Miss. June 12, 2019), ECF No. 135-2; Exhibit A to Motion for
Summary Judgment at 38, Burroughs Diesel, Inc. v. Baker Petrolite, LLC, No. 2:18CV-26-KS-MTP (S.D. Miss. June 12, 2019), ECF No. 135-1. If Poly finds a bubble in
the tank, it repairs it, as necessary and possible. Exhibit B [135-2], at 5.
This evidence creates a genuine dispute of material fact as to whether the tank
at issue in this case “deviated in a material way from the manufacturer’s . . .
specifications or from otherwise identical units manufactured to the same
manufactured specifications . . . .” MISS. CODE ANN. § 11-1-63(a)(i)(1). Plaintiff is not
necessarily required to put on evidence of Poly’s design specifications. See Cooper Tire
& Rubber Co. v. Tuckier, 826 So. 2d 679, 683-84 (Miss. 2002); Shelter Ins. Co. v.
Mercedes Benz, USA, 2006 WL 1601770, at *1-*2 (N.D. Miss. June 8, 2006). Rather,
Plaintiffs must “prove that the [tank] deviated.” Shelter Ins. Co. v. Mercedes Benz,
40
USA, 236 F. App’x 45, 47-48 (5th Cir. 2007). A jury could reasonably infer from the
evidence cited above that an air void in the tank is a deviation from Poly’s
specifications and/or otherwise identical tanks manufactured by Poly.
2.
Unreasonably Dangerous
Next, Poly argues that Plaintiff has not presented evidence that the alleged
defect was “unreasonably dangerous” as required by the MPLA. See MISS. CODE ANN.
§ 11-1-63(a)(ii). The Mississippi Supreme Court has used a risk-utility analysis to
determine whether a product is unreasonably dangerous. See Smith v. Mack Trucks,
Inc., 819 So. 2d 1258, 1262-63 (Miss. 2002); see also Young v. Bristol-Myers Squib Co.,
2017 WL 706320, at *5-*6 (N.D. Miss. Feb. 22, 2017). Under this analysis, a product
is “unreasonably dangerous” if its utility is “outweighed by its danger.” Smith, 819
So. 2d at 1263. The Court considers the following factors:
(1) The usefulness and desirability of the product – its utility to the user
and to the public as a whole.
(2) The safety aspects of the product – the likelihood that it will cause
injury, and the probable seriousness of the injury.
(3) The availability of a substitute product which would meet the same
need and not be as unsafe.
(4) The manufacturer’s ability to eliminate the unsafe character of the
product without impairing its usefulness or making it too expensive to
maintain its utility.
(5) The user’s ability to avoid danger by the exercise of care in the use of
the product.
(6) The user’s anticipated awareness of the dangers inherent in the
product and their avoidability, because of general public knowledge of
41
the obvious condition of the product, or of the existence of suitable
warnings or instructions.
(7) The feasibility, on the part of the manufacturer, of spreading the loss
by setting the price of the product or carrying liability insurance.
Id.
Many of the factors in Mississippi’s risk-utility analysis are not applicable here
because an air void is not a characteristic inherent to a polyethylene tank. Rather, it
was a manufacturing defect. The void in the tank has no relation to its usefulness,
and a jury could reasonably conclude – based on the evidence cited above – that a
tank without a void would have been safer, while providing the same utility.
Plaintiff’s experts testified that the crack in the tank would not have occurred
but for the void. Exhibit C [145-3], at 15; Exhibit C [135-3], at 5. Also, it is undisputed
that Poly conducted testing to identify such flaws after casting. Exhibit C [135-3], at
21; Exhibit B [135-2], at 5; Exhibit A [135-1], at 38. Poly’s representative testified
that a void or bubble in the tank can cause “some degree of weakness,” which would
“raise some concern and probably downgrade the tank.” Exhibit A [135-1], at 38.
Therefore, if Poly finds a bubble in the tank, it repairs it, as necessary and possible.
Exhibit B [135-2], at 5. Finally, the manufacturing standards governing the tank
provided that its “walls shall be free, as commercially practicable, of visual defects
such as foreign inclusions, air bubbles, pinholes, pimples, crazing, cracking and
delaminations that will impair the serviceability of the vessel.” Exhibit L to Motion
for Summary Judgment at 3, Burroughs Diesel, Inc. v. Baker Petrolite, LLC, No. 2:1842
CV-26-KS-MTP (S.D. Miss. June 12, 2019), ECF No. 135-12. Considering this
evidence, a jury could reasonably conclude that the void in the HCl tank rendered the
tank “unreasonably dangerous,” as contemplated by the MPLA. See Forbes v. GM
Corp., 935 So. 2d 869, 879 (Miss. 2006).
3.
Causation
Finally, Poly argues that Plaintiff can not prove that the alleged defect caused
the spill. Rather, Poly contends that Baker’s over-filling of the tank caused the spill.
Under Mississippi law, “there may be more than one proximate cause of an
injury.” Miss. Power & Light Co. v. Walters, 158 So. 2d 2, 20 (Miss. 1963). Plaintiff
has presented evidence that the void in the tank was a proximate cause of the
rupture, along with Baker’s over-filling of the tank. See, e.g. Exhibit C [145-3], at 15;
Exhibit C [135-3], at 5. Therefore, a jury could reasonably conclude that a defect in
the tank was a proximate cause of Plaintiff’s alleged injuries.
D.
Conclusion
For these reasons, the Court grants in part and denies in part Poly’s Motion
for Summary Judgment [135]. The Court grants the motion with respect to Plaintiff’s
design defect claim, but the Court denies it in all other respects.
VIII. MOTION FOR SUMMARY JUDGMENT AS TO BAKER [147]
The Baker Defendants filed a Motion for Summary Judgment [147] as to
numerous elements of Plaintiff’s alleged damages. Plaintiff “has the burden of
proving any amount of damages with reasonable certainty.” Brothers v. Winstead, 129
43
So. 3d 906, 925 (Miss. 2014). Plaintiff must present sufficient evidence to remove the
quantum of damages “from the realm of speculation and conjecture . . . .” Adams v.
U.S. Homecrafters, Inc., 744 So. 2d 736, 740 (Miss. 1999). However, Plaintiff “should
not be deprived of its right to recover because of its inability to prove with absolute
certainty the extent of the loss . . . .” Id. The “law does not require such absolute
accuracy of proof.” Id. Indeed, “a measure of speculation and conjecture attends even
damage proof all would agree reasonably certain.” Brothers, 129 So. 2d at 925; see
also Piney Woods Country Life Sch. V. Shell Oil Co., 116 F.3d 478, 1997 WL 256767,
at *9 (5th Cir. 1997).
A.
Metal Buildings
First, Baker argues that the proper measure of the damage to Plaintiff’s metal
buildings is the cost of repair or, phrased differently, the cost to restore them to their
pre-spill condition. Baker contends that Plaintiff has not presented any evidence of
the cost to repair the buildings, and, therefore, summary judgment is appropriate as
to that element of Plaintiff’s damages. In response, Plaintiff argues that the
diminution in the buildings’ fair market value is the appropriate measure of damages,
and that it has presented sufficient evidence from which a jury could determine an
amount of damages.
“As a general rule, the measure of damages in actions for permanent injury to
land where there is no willful trespass is the difference in value in the before-andafter damage to the premises.” Harrison v. McMillan, 828 So. 2d 756, 769 (Miss.
44
2002); see also Blackard v. Hercules, Inc., 2014 WL 3548829, at *10 (S.D. Miss. July
17, 2014). This “before and after” rule “is not a hard and fast or inflexible rule
applicable under all circumstances, and it will not apply where there is a more
definite, equitable, and accurate way by which the damages may be determined.”
Bynum v. Mandrel Indus., Inc., 241 So. 2d 629, 634 (Miss. 1970). For example, “where
the land, or buildings located on the property, has been damaged but the property
may be restored to its former condition at a cost less than the value determined by
the diminution of the value of the land, the cost of restoration of the property, plus
compensation for the loss of its uses, may be the measure of damages.” Harrison, 828
So. 2d at 769; see also Waggener v. Leggett, 150 So. 2d 529, 531 (Miss. 1963). “This is
particularly true where the adoption of the difference in value as the measure of
damages would be difficult and uncertain, or where the injury is not so much to the
land itself as to improvements thereon.” Bynum, 241 So. 2d at 635.
The Court will assume, for the purpose of addressing the current motion, that
the “before and after” rule applies, as Plaintiff argues. Plaintiff has provided evidence
of the metal buildings’ value before the spill – an appraisal by its expert, John
Adamson. Exhibit D to Motion for Summary Judgment, Burroughs Diesel, Inc. v.
Baker Petrolite, LLC, No. 2:18-CV-26-KS-MTP (S.D. Miss. June 20, 2019), ECF No.
147-4. However, the Court excluded Lorenzo’s opinion regarding the fair market
value of the metal buildings after the spill, and Plaintiff has not directed the Court
to any admissible evidence of the metal buildings’ fair market value after the spill.
45
Likewise, the Court excluded Lorenzo’s opinions regarding the loss in useful life of
the metal buildings’ roofing and side panels, and Plaintiff has not directed the Court
to any admissible evidence from which a jury could infer the diminution in value of
the metal buildings.
Therefore, Plaintiff can not meet its burden of proving the amount of damage
to the metal buildings with reasonable certainty, and the Court grants this aspect of
Baker’s motion.
B.
Cleanup
Next, Baker argues that Plaintiff has not provided any evidence of the
necessity, scope, or cost of its alleged cleanup efforts. The Court disagrees. First, the
record contains expert testimony that that Plaintiff’s entire property was exposed, to
some degree, to a cloud of HCl vapor. See, e.g. Exhibit E [145-5], at 3. According to
the Edwards report, multiple surfaces across the property tested positive for
chlorides, an indicator of HCl exposure. Id. at 43. This is sufficient basis for a jury to
infer that some degree of cleanup was necessary.
As for the alleged scope and cost of cleanup, the Court agrees that Plaintiff’s
evidence is sketchy. But Plaintiff is not required to prove damages with “absolute
certainty.” Adams, 744 So. 2d at 740. Michael and Robert Burroughs provided their
best recollection regarding what was done, the number of employees utilized, and the
number of hours worked. While there is ample material for impeachment of their
estimates during cross-examination, a jury could reasonably award Plaintiff some
46
cleanup costs based on their testimony. The Court denies this aspect of Defendant’s
motion.
C.
Tire Inventory
Next, Baker argues that Plaintiff has no evidence that its tire inventory was
damaged by the HCl spill. The Court disagrees. It is undisputed that Goodyear and
Michelin voided the warranties on their tires that Plaintiff had in inventory. In the
Court’s opinion, a jury could reasonably infer that at least some of Plaintiff’s tire
inventory was damaged by the HCl spill or, at the very least, that the value of the
inventory was damaged. The Court denies this aspect of Defendant’s motion.
D.
Generators
Baker also argues that Plaintiff has no evidence that its diesel generators were
damaged by the HCl spill. In response, Plaintiff did not address the generators or
refer the Court to any specific evidence that the generators were damaged by the HCl
spill. The Court is not obligated to search the record for evidence in support of
Plaintiff’s claims. RSR Corp. v. Int’l Ins. Co., 612 F.3d 851, 857 (5th Cir. 2010).
“Rather, the party opposing the summary judgment is required to identify specific
evidence in the record and to articulate precisely how this evidence supports his
claim.” Id.; see also Texas v. EEOC, 933 F.3d 433, 446 (5th Cir. 2019); C. F. Dahlberg
& Co., Inc. v. Chevron U.S.A., Inc., 836 F.2d 915, 920 (5th Cir. 1988).
Plaintiff generally referred to the testimony and report of its expert, Fernando
Lorenzo, but the Court excluded Lorenzo’s opinions regarding the generators.
47
Therefore, Plaintiff has failed to demonstrate the existence of a genuine dispute of
material fact on this issue, and the Court grants Baker’s motion with respect to
Plaintiff’s past and future repairs to the diesel generators.
E.
Tools & Equipment
Next, Baker argues that Plaintiff has insufficient evidence to support its
claimed damages to tools and equipment. The Court disagrees. Plaintiff’s expert,
Lorenzo, intends to testify that tools and equipment were damaged by the HCl
exposure. As discussed above, Lorenzo’s testimony on this point is susceptible to
cross-examination, but he provided a rational basis for his opinions. His failure to
observe the tools firsthand is not fatal to his testimony or Plaintiff’s claim for
damages. The Court denies this aspect of Baker’s motion.
F.
Miscellaneous
Finally, Baker argues that summary judgment is appropriate as to numerous
miscellaneous elements of damages, including forklifts and loaders, halogen lights,
surveillance system, wrecker trucks, forklift tires, tires on equipment and vehicles in
the wrecker building, electrical repairs, steel cable replacement, machine repairs, and
HVAC repairs. See Exhibit B to Motion for Summary Judgment at 3-6, Burroughs
Diesel, Inc. v. Baker Petrolite, LLC, No. 2:18-CV-26-KS-MTP (S.D. Miss. June 20,
2019), ECF No. 148. Baker argues that Plaintiff has no evidence that these repairs
were caused by the HCl spill.
In response, Plaintiff did not address each of these elements of damages or
48
refer the Court to specific evidence in support of them. Again, the Court is not
obligated to search the record for evidence in support of Plaintiff’s claims. RSR Corp.,
612 F.3d at 857. “Rather, the party opposing the summary judgment is required to
identify specific evidence in the record and to articulate precisely how this evidence
supports his claim.” Id. Plaintiff generally referred to Lorenzo’s testimony and report,
but the Court excluded any testimony from Lorenzo about the alleged damage to the
wrecker trucks, the tires and equipment in the wrecker building, the forklift tires,
and all of Plaintiff’s “Miscellaneous Repairs/Quotes for Damages,” see Exhibit B [1472], at 3-6, except the halogen light kits. Therefore, the Court grants this aspect of
Baker’s motion, except with respect to Plaintiff’s claimed damages to the halogen
light kits.
IX. CONCLUSION
For these reasons, the Court rules as follows:
1. The Court grants Baker’s Motion to Strike [174] portions of the
affidavit of Plaintiff’s expert, Fernando Lorenzo.
2. The Court grants in part and denies in part Baker’s Motion
to Exclude [145] the testimony of Plaintiff’s expert, Fernando
Lorenzo. Specifically, the Court grants the motion with respect
to Lorenzo’s opinions regarding the remaining useful life of the
metal buildings’ roofing panels and side panels, and with respect
to Lorenzo’s opinions regarding several miscellaneous repair
invoices. The Court denies the motion in all other respects.
3. The Court denies Poly’s Motion to Exclude [137] certain
testimony by Plaintiff’s experts, Fernando Lorenzo and Roger
Craddock.
4. The Court denies Plaintiff’s Motion to Exclude [140] certain
49
testimony by Baker’s expert, Gale Hoffnagle.
5. The Court denies as moot Plaintiff’s Motion to Exclude [142]
certain testimony by Baker’s expert, James Koerber.
6. The Court grants in part and denies in part Poly’s Motion for
Summary Judgment [135]. The Court grants the motion with
respect to Plaintiff’s design defect claim, but the Court denies it
in all other respects.
7. The Court grants in part and denies in part Baker’s Motion
for Summary Judgment [147]. The Court denies the motion with
respect to Plaintiff’s claimed cleanup costs, tire inventory, tools
and equipment, and halogen lights, but the Court grants the
motion in all other respects.
SO ORDERED AND ADJUDGED this 22nd day of October, 2019.
/s/
Keith Starrett
KEITH STARRETT
UNITED STATES DISTRICT JUDGE
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