Otto v. Newfield Exploration Company et al
OPINION AND ORDER DENYING 37 Motion for Summary Judgment Signed by Judge Susan P. Watters on 12/22/2016. (AMC)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MONT ANA
BRADLEY P. OTTO, as personal
representative of the estate of Blaine P.
DEC 2 2 2016
Ctb'1Slrict Of Mo ct Court
*· U.s Oistr;
OPINION AND ORDER
PRODUCTION COMPANY; and
NEWFIELD EXPLORATION MIDCONTINENT, INC.,
Before the Court is a Motion for Summary Judgment filed by Defendants
Newfield Exploration Company, Newfield Product Company, and Newfield
Exploration Mid-Continent, Inc., (Newfield). (Doc. 37). Newfield argues there
are no genuine issues of fact and it is entitled to judgment as a matter of law. For
the reasons discussed below, the Court DENIES Newfield's Motion for Summary
Blaine Otto (Otto) was employed by a company that provided tank
inspection services, among other things, to Newfield on a contract basis at various
well sites in the Bakken Shale Oil Field. (Doc. l ). On July 18, 2013, Otto was
found dead on the catwalk of an oil storage tank at a well site in McKenzie County,
North Dakota. (Doc. 38, ii 1). The well site was operated by Newfield. (Doc. 38,
if 2). At least one of the oil storage tank's hatches was open when Otto was found
dead. (Doc. 59 at 5).
Otto's estate filed suit, alleging Otto died of exposure to deadly hydrocarbon
vapors due to intentional, reckless, and/or negligent conduct by Newfield. (Doc.
1). Newfield disputed the cause of Otto's death, alleging Otto died of natural
causes. (Doc. 38, ii 3).
The presence or exact concentration of hydrocarbon vapors at the well site at
the time of Otto's death are unknown because no measurement was taken during
the investigation. (Doc. 55, iiii 27-28). The oil's Material Safety Data Sheet states
the oil produces deadly hydrocarbon vapors. (Doc. 53-7). A NlOSH-OSHA
(National Institute for Occupational Safety and Health and Occupational Safety
and Health Administration) hazard report states in detail the hazards faced by
workers who manually gauge oil tanks. (Doc. 36-5).
The introduction to the
Workers at oil and gas extraction sites could be exposed to
hydrocarbon gases and vapors, oxygen-deficient atmospheres, and
fires and explosions when they open tank hatches to manually gauge
or collect fluid samples on production, flowback, or other tanks (e.g.,
drip pots) that contain process fluids. Opening tank hatches, often
referred to as "thief hatches," can result in the release of high
concentrations of hydrocarbon gases and vapors. These exposures can
have immediate health effects, including loss of consciousness and
(Doc. 36-5 at 5).
Otto's estate retained Dr. Tee L. Guidotti (Dr. Guidotti) and Mr. Edward R.
Ziegler (Ziegler) as liability experts. Dr. Guidotti is a physician, qualified as a
board-certified specialist in internal medicine, pulmonary medicine, and
occupational medicine. (Doc. 36-1 at 1). He is also a retired professor of
Occupational and Environmental Medicine at the George Washington University
Medical Center, where he was Chair of the Department of Environmental and
Occupational Health of the School of Public Health and Health Services and
Director of the Division of Occupational Medicine and Toxicology, Department of
Medicine, School of Medicine and Health Services. (Doc. 3 6-1 at 1). He has
worked with the oil and gas industry for over 35 years and is currently an
international consultant. (Doc. 36-1 at 1).
Dr. Guidotti's opinion is that Otto's death was caused by exposure to deadly
hydrocarbon vapors. (Doc. 36-1 at 8). Dr. Guidotti formulated his opinion after
estimating Otto's level of exposure and reviewing numerous documents and items
of evidence, including the autopsy report, the OSHA fatality report, and
information disclosed during discovery. (Doc. 36-1 at 1-2). Based on the
evidence, Dr. Guidotti listed four possible causes of Otto's death: ( 1) inhalation of
hydrocarbon vapors; (2) depleted oxygen levels due to displacement by
hydrocarbon vapors; (3) inhalation of hydrogen sulfide; and (4) natural causes.
(Doc. 36-1 at 3-4). Dr. Guidotti then proceeded to eliminate each cause based on
its likelihood, concluding inhalation of hydrocarbon vapors was the most likely
cause of Otto's death. (Doc. 36 at 3-8). The Court previously found Dr. Guidotti's
opinion was both relevant and reliable. (Doc. 75).
Ziegler is a petroleum and natural gas engineer, a registered Professional
Engineer, and a Certified Safety Professional. (Doc. 36-4 at 4). He is also trained
as an OSHA 500 Program Instructor. (Doc. 36-4 at 4). Ziegler has worked in the
oil and gas business for over 35 years. (Doc. 36-4 at 4).
Ziegler's opinion is that Newfield's conduct was grossly below any industry
standard. (Doc. 36-4 at 19). Ziegler formulated his opinion after review of
numerous documents and pieces of evidence, including safety regulations, the
OSHA file, and information disclosed during discovery. (Doc. 36-4 at 3). The
Court previously found Ziegler's opinion was both relevant and reliable. (Doc.
Summary Judgment Standard.
"The court shall grant summary judgment ifthe movant shows that there is
no genuine dispute as to any material fact and the movant is entitled to judgment as
a matter oflaw." Fed. R. Civ. P. 56(a). A party seeking summary judgment
always bears the initial responsibility of informing the court of the basis for its
motion, and identifying those portions of the pleadings, depositions, answers to
interrogatories, and admissions on file, together with the affidavits, if any, which it
believes demonstrate the absence of a genuine issue of material fact. Celotex
Corp. v. Catrett, 477 U.S. 317, 323 (1986).
Material facts are those which may affect the outcome of the case. Anderson
v. Liberty Lobby, Inc., 4 77 U.S. 242, 248 (1986). A dispute as to a material fact is
genuine ifthere is sufficient evidence for a reasonable fact-finder to return a
verdict for the nonmoving party. Anderson, 477 U.S. at 248. If the moving party
meets its initial responsibility, the burden then shifts to the opposing party to
establish that a genuine issue of fact exists. Matsushita Elec. Indus. Co. v. Zenith
Radio Corp., 475 U.S. 574, 586 (1986).
The evidence is viewed in the light most favorable to the opposing party and
all justifiable inferences are to be drawn in its favor. Anderson, 477 U.S. at 255.
Credibility determinations, the weighing of the evidence, and the drawing of
legitimate inferences from the facts are jury functions, not those of a judge.
Anderson, 477 U.S. at 255. Summary judgment is improper where divergent
ultimate inferences may reasonably be drawn from the undisputed facts. Fresno
Motors, LLC v. Mercedes Benz USA, LLC, 771F.3d1119, 1125 (9th Cir. 2014).
The Court previously determined North Dakota law governs this case. (Doc.
40). In North Dakota, negligence consists of a duty on the part of an allegedly
negligent party to protect the plaintiff from injury, a failure to discharge that duty,
and resulting injury proximately caused by the breach of the duty. Forsman v.
Blues, Brews, and Bar-B-Ques, Inc., 820 N.W.2d 748, 753 (N.D. 2012). To prove
causation in a toxic tort case, the plaintiff must show the substance is capable of
causing the injuries suffered by the plaintiff (general causation) and that the
substance did in fact cause those injuries (specific causation). Golden v. CH2M
Hill Hanford Group, Inc., 28 F.3d 681, 683 (9th Cir. 2008).
Newfield argues that it is entitled to summary judgment because there is no
direct evidence of the exact concentration of hydrocarbon vapors at the well site at
the time of Otto's death. The Court disagrees.
Newfield is correct that speculative evidence cannot defeat a motion for
summary judgment. See Barnes v. Arden Mayfair, Inc., 759 F.2d 676, 681 (9th
Cir. 1985). However, reasonable inferences drawn from probative evidence can
defeat a motion for summary judgment. Fresno Motors, 771 F.3d at 1125. In a
toxic tort case, a reasonable estimate of exposure by a reliable expert is often the
only way a plaintiff can prove specific causation. See Bland v. Verizon Wireless,
(VA W) L.L. C., 538 F.3d 893, 898 ("Critical to a determination of causation is
characterizing exposure ... [t ]he magnitude or concentration of an exposure
should be estimated.") (citing Federal Judicial Center, The Reference Manual on
Scientific Evidence 472 (2d ed. 2000)).
Here, the oil's MSDS states it produces deadly hydrocarbon vapors. (Doc.
53-7). A NIOSH-OSHA hazard report states the deadly hydrocarbon vapors
present a hazard to workers who open tank hatches to manually gauge samples.
(Doc. 36-5). One of the services Otto provided to Newfield was manually gauging
samples. (Doc. 1). Otto was found dead on the catwalk of an oil storage tank with
at least one hatch open. (Doc. 38, if 1; Doc. 59 at 5). Newfield operated the well
site. (Doc. 38, if 2). Based on a reasonable estimate of Otto's exposure, the
autopsy, and circumstances of death, Dr. Guidotti concluded exposure to deadly
hydrocarbon vapors was the most likely cause of Otto's death. (Doc. 36-1 at 3-8).
Ziegler concluded Otto was exposed to the deadly hydrocarbon vapors because
Newfield's conduct fell below industry safety standards, including its failure to:
develop a safety program with monitoring and audits, effectively communicate
with workers, utilize remote measuring equipment, and require necessary safety
gear such as respirators. (Doc. 36-4 at 9-14, 18). A jury faced with this evidence
could reasonably infer Otto was killed by deadly hydrocarbon vapors because of
Newfield's conduct. Summary judgment is therefore inappropriate.
The cause of Otto's death remains a genuine issue of fact. Ncwfield's
Motion for Summary Judgment (Doc. 37) is therefore DENIED.
day of December,
USAN P. WATTERS
U.S. DISTRICT JUDGE
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