Richardson International (US) Limited et al v. Buhler Inc

Filing 110

MEMORANDUM AND ORDER denying 80 Motion in Limine to exclude certain testimony of the plaintiffs' experts Kenneth R. Scurto, James E. Maness, and Dr. Thomas Schnell. Ordered by Senior Judge Joseph F. Bataillon. (ADB)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA

RICHARDSON INTERNATIONAL (US)
LIMITED, and NATIONWIDE
AGRIBUSINESS INSURANCE
COMPANY,

8:14CV148
MEMORANDUM AND ORDER

Plaintiffs,
vs.
BUHLER INC.,
Defendant.

This matter is before the court on defendant Buhler’s motion in limine to exclude
certain testimony of the plaintiffs’ experts Kenneth R. Scurto (“Scurto”), James E.
Maness (“Maness”), and Dr. Thomas Schnell (“Dr. Schnell”), Filing No. 80.

Buhler

seeks exclusion of the testimony under Daubert v. Merrell Dow Pharms., 509 U.S. 579,
589 (1993).
I.

BACKGROUND
The experts’ reports have been filed.

Filing No. 83-4, Ex. D, Scurto Report

(“Rep’t”); Filing No. 83-8, Ex. H, Maness Rep’t; Filing No. 83-11, Ex. K, Schnell Rep’t.
Also, all of the experts were deposed.

Filing No. 85-3, Ex. 3, Scurto Deposition

(“Dep.”); Filing No. 85-7, Schnell Dep.; Filing No. 85-11, Maness Dep.
The record shows plaintiffs’ expert Kenneth Scurto is a fire investigator with over
36 years of experience in fire investigations. He has had training in all aspects of fire
suppression. He was Deputy Inspector with the Nebraska State Fire Marshal’s Office
from 1985 to 2002. He was a Fire Investigator with Leuwerke and Associates for four

years and has worked at Independent Forensic Investigations Corporation for more than
ten years.

He is certified as a Fire and Explosion Investigator by the National

Association of Fire Investigators, and he has held that certification for eleven years. He
is also a member of National Association of Fire Investigators, International Association
of Arson Investigators, Nebraska Chapter of the International Association of Arson
Investigators, Nebraska Society of Fire Service Instructors, and the Nebraska State
Volunteer Firefighters Association. He has investigated almost 1800 fires and
explosions and has testified in numerous cases.
He was retained to conduct a fire investigation of the June 3, 2013 fire at the
Richardson facility in South Sioux City, Nebraska. He performed a half-day physical
inspection, interviewed several witnesses, and reviewed system data. The system data
could not be printed, but Scurto viewed the data and took notes on it.
The defendant was provided an opportunity to conduct an investigation into the
fire and to freely inspect the facility and equipment involved in the fire and was notified
that cleanup, remediation, and repairs would commence after that. The plaintiffs have
shown that Fire Investigator Kenneth Ward and Mechanical Engineer Duane Wolf
investigated on behalf of the defendant on June 8, 2013, and June 10, 2013. Filing No.
85-2, Ex. 21, Rick Martin Dep. at 89-96. Both Ward and Wolf were disclosed in initial
disclosures, but neither has been designated as an expert witness in the case.
The record shows the control system data was only kept on the server for 90
days after the fire and was then purged under the standard protocol of the server. Filing
No. 85-20, Ex. 20, J. Olson Dep. at 61, 72-73. The plaintiffs and its expert were not
aware that the server did not permit printouts or reports of material, just stored raw data.
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Id. at 65-66. Buhler’s expert, Rick Martin acknowledged that there is no evidence of
intentional spoliation of the system data. Filing No. 85-21, Ex. 21, Martin Dep. at 65.
He testified he was able to form a cause and origin opinion without viewing any of the
control data information.
Scurto’s cause and origin opinions are based on application of the techniques set
forth in the National Fire and Protection Association document 921, Guide for Fire and
Explosion Investigations and the National Fire and Protection Association (“NFPA”)
Document 1033, Standard for Professional Qualifications for Fire Investigator. He also
based his opinion on his observations of burn patterns and heat damage, witness
interviews, Richardson employee deposition transcripts, company documents including
coated product pre-op checklist, records on ovens, 1078 multigrain granola batch
details, oven product history, the Aeroglide Safety Procedures page from the owner’s
manual, the Buhler service contract, and hand-written statements of Richardson
employees as well as his education, training and experience.
James Maness has a B.S. in Mechanical Engineering from the University of
Maryland.

From 1967 through 1974, Maness was a Research Engineer with the

National Bureau of Standards, Consumer Product Safety Research and High
Temperature Measurements group, publishing technical papers on research dealing
with issues including fire-related consumer product safety. He worked as the Director of
Technical Services for the National Grain & Feed Association from 1974 to 1984. In
that capacity he was responsible for safety and health programs, grain grades and
weights issues, environmental quality concerns, research, energy conservation and
various engineering and technical programs. He is presently an independent safety
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consultant.

He offered opinions on industry standards and engineering practices,

including NFPA and Factory Mutual (“FM”).

He identified contributing factors that

influenced the event and how it could have been prevented. He further opined on
Buhler’s failure to follow recognized standards, guidelines and regulations pertaining to
the operation of the dryer and the responsibility of Buhler to provide a safe design.
Also, he offered an opinion on Richardson’s operational practices as far as
housekeeping practices to minimize the risk of fires and explosions. He relied on the
information provided by counsel, including Scurto’s report, depositions, deposition
exhibits, documents produced in discovery, witnesses’ statements and comments, the
fire marshal report, NFPA 61—Standards for the Prevention of Fires and Explosions in
Agricultural and Food Processing Facilities (2002), NFPA 86—Standards for Ovens and
Furnaces (2007), FM Global Property Loss Prevention Data Sheets 6-9 for Industrial
Ovens and Dryers, and appropriate portions of Occupational Safety and Health
Administration’s (“OSHA”) General Industry Standards, 29 C.F.R. 1910.
Thomas Schnell has a Ph. D. in industrial design. He has been employed as a
professor at the University of Iowa for eighteen years.

Dr. Schnell teaches and

conducts research in the area of Safety Engineering and Human Factors. He has
taught such subjects as Industrial Engineering Design, Operational Systems, Human
Factors, Quality Engineering, Ergonomic Design, Quality Control, and Human
Performance in Engineered Systems. He was asked to give an opinion on a design
defect and adequacy of warnings and instructions from a safety engineering and human
factors perspective.

After the defendant belatedly produced a hazard analysis, Dr.

Schnell reviewed and evaluated it.
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Buhler challenges all of Scurto’s opinion testimony as relying on allegedly
spoliated evidence, contending that Scurto’s opinions are inextricably intertwined with
critical, missing data. It argues that Richardson should not be allowed to advance
causation theories that depend upon data that they failed to preserve. Alternatively, it
asks the court to exclude the portions of Scurto’s report that rely extensively on the
spoliated control systems data. Also, it argues that Scurto should be precluded from
testifying at trial in a manner inconsistent with admissions he made at his deposition.
Buhler challenges Maness’s opinions 1 (adequacy of warnings and instructions)
and 4 (adequacy of housekeeping and cleaning) as lacking evidentiary support and
based on missing data. It argues that Maness did not offer independent opinions on the
subject of the origin and cause of the fire, but relied on the cause and origin opinions of
Scurto and the Fire Marshal.

It contends Maness’s opinions are not supported by

Scurto's or the Fire Marshal's opinions. Buhler also challenges Maness’s supplemental
report (regarding NFPA 86 (1999 edition) standards) as untimely.
With respect to Dr. Schnell’s testimony, Buhler asserts his opinions 1 (defective
design), 3 (warnings system), and 4 (adequacy of hazard analysis) are outside Dr.
Schnell’s area of expertise and are also improper rebuttal evidence and should be
excluded.

Buhler contends that the deadline for disclosure of the plaintiffs’ expert

witness reports was September 9, 2016.1 On that date, plaintiffs’ counsel sent defense
counsel an email notifying him that Richardson’s warnings/human factors expert, Tom
Schnell, was out of the country working on a Department of Defense contract and that a
1

The deadline for disclosure of the defendant’s expert reports was November 4, 2016, and the
deadline for plaintiffs to disclose additional experts to refute the defendant’s experts was November 18,
2016.

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report would not be ready until Dr. Schnell returned three weeks later. Filing No. 91-1,
Ex. L, Hartnett Affidavit (“Aff.”), Ex. L1, Hartnett-Hicks Email. Buhler’s counsel, as a
matter of professional courtesy, offered to extend the deadline for disclosure of the
report by one week, but not longer. Id. The plaintiffs contend that Buhler withheld
documents critical to Dr. Schnell’s opinions, namely, its “hazard analysis,” until after the
plaintiffs’ expert report deadline. The hazard analysis was produced on October 20,
2016, at the deposition of Shane Parker, forty-one days after the report deadline.
Richardson contends it should have been produced in initial disclosures and in
response to document requests. Dr. Scurto’s report was produced to the defendant on
November 28, 2016. Dr. Scurto was deposed on December 12, 2016.
II.

LAW
Federal Rule of Evidence 702 governs the admissibility of expert testimony and

requires that: A(1) the evidence must be based on scientific, technical or other
specialized knowledge that is useful to the finder of fact in deciding the ultimate issue of
fact; (2) the witness must have sufficient expertise to assist the trier of fact; and (3) the
evidence must be reliable or trustworthy.@ Kudabeck v. Kroger Co., 338 F.3d 856, 859
(8th Cir. 2003). Expert testimony assists the trier of fact when it provides information
beyond the common knowledge of the trier of fact. Id. at 860.
The proponent of expert testimony bears the burden of providing admissibility
beyond a preponderance of the evidence. Lauzon v. Senco Prods., 270 F.3d 681, 686
(8th Cir. 2001). “The rule clearly ‘is one of admissibility rather than exclusion.’” Id.
(quoting Arcoren v. United States, 929 F.2d 1235, 1239 (8th Cir.1991)).

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When faced with a proffer of expert testimony, trial judges are charged with the
Agatekeeping@ responsibility of ensuring that all expert evidence admitted is both
relevant and reliable.

Kumho Tire Co. v. Carmichael, 526 U.S. 137, 147 (1999);

Daubert v. Merrell Dow Pharms., 509 U.S. 579, 589 (1993); United States v. Merrell,
842 F.3d 577, 582 (8th Cir. 2016).

A trial court must be given wide latitude in

determining whether an expert=s testimony is reliable. See Kumho Tire, 526 U.S. at
152. This analysis requires that the court make a Apreliminary assessment of whether
the reasoning or methodology underlying the testimony is scientifically valid and of
whether that reasoning or methodology . . . can be [properly] applied to the facts in
issue.@ Daubert, 509 U.S. at 592-93.
“In diversity cases, a district court applies federal law to the issue of adverse
inference instructions for spoliation of evidence.” Burris v. Gulf Underwriters Ins. Co.,
787 F.3d 875, 879 (8th Cir. 2015).

Spoliation refers to the destruction or material

alteration of evidence or to the failure to preserve property for another's use as evidence
in pending or reasonably foreseeable litigation. Micron Technology, Inc. v. Rambus
Inc., 645 F.3d 1311, 1320 (Fed. Cir. 2011). Under federal law, “in order for an adverse
inference instruction for spoliation to be warranted, a district court is required to make
two findings: (1) there must be a finding of intentional destruction indicating a desire to
suppress the truth, and (2) there must be a finding of prejudice to the opposing party.”
Burris, 787 F.3d at 879; see Bakhtiari v. Lutz, 507 F.3d 1132, 1136 (8th Cir. 2007) (to
find spoliation, the court must determine that the party who held the evidence
intentionally destroyed it with a desire to suppress the truth); Stevenson v. Union Pacific
R. Co., 354 F.3d 739, 748 (8th Cir. 2004) (the party deprived of access to the evidence
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must also show prejudice).

Federal Courts may impose a range of sanctions and

remedies when a party abuses the judicial process by destroying evidence. Stevenson,
354 F.3d at 745–46. This includes giving an "adverse inference" instruction, precluding
the offending party from offering evidence on the matter, or even settling a disputed
matter of fact. Id. at 750–51.
III.

DISCUSSION
The court has considered the evidence submitted by the parties and finds that all

three experts are eminently qualified to render opinions on the challenged topics. With
respect to Scurto’s cause and origin testimony, the defendant’s challenge is primarily
based on its assertion of spoliation of evidence. It appears that the defendant had the
same opportunity to view the control system data that the plaintiffs did. The plaintiffs
have shown that defendant’s experts and employees had the opportunity to investigate
the scene and could have accessed the information before the server was purged.
Also, the defendant’s expert, Rick Martin, was able to form his opinion without the
information. The defendant has not asserted that the spoliation was intentional and the
defendant does not appear to have been prejudiced. The court has not been presented
with evidence that shows the failure to maintain the information was anything but
inadvertent.

Accordingly, the court finds that exclusion of Scurto’s testimony because

of the alleged spoliation is not warranted.
Even if it were, the remedy would be an adverse inference instruction and not
complete exclusion of the testimony. Depending on the evidence at trial, the court can
revisit the issue. The parties are cautioned, however, that no adverse inference
instruction will be given without informing the jury that Fire Investigator Kenneth Ward
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and Mechanical Engineer Duane Wolf investigated on behalf of the defendant on June
8, 2013, and June 10, 2013, but were not designated as experts.
The plaintiffs have shown that Scurto’s opinions are relevant and reliable and are
based on sound methodology that can be applied to the facts in this case. His opinions
are based on a physical investigation of the scene on June 4, 2013, a review of the file
materials in this matter, and interviews of key witnesses. The control system data was
only one component of his investigation. His observations and notes on the data were
included in his report and were available to the defendant’s expert.

Other criticisms of

Scurto’s testimony go to weight, not admissibility.
The plaintiffs have also shown that Maness’s opinions are relevant and reliable.
The fact that he did not make a physical inspection of the scene is the subject of crossexamination and not a ground to exclude the testimony. The defendant’s criticisms go
more to the weight than to the admissibility of the evidence. The defendant’s assertions
of untimely disclosure are unavailing. The record shows that Maness timely
supplemented his report in that he testified at his deposition on December 5, 2016, that
he would offer an opinion on the 1999 version of the NFPA. He also supplemented his
opinion in writing on November 30, 2016. He was questioned extensively about the
1999 version at his deposition and the defendant’s expert would have been aware of the
supplemented opinion at his deposition on December 15, 2016.
As to Dr. Schnell, the court rejects the defendant’s argument that the untimely
disclosure warrants exclusion of Schnell’s testimony. The defendant appears to engage
in gamesmanship. The plaintiffs have shown that the hazard analysis was belatedly

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produced.

The hazard analysis affected the expert’s opinions on warnings and

instructions.
The defendant’s argument that after the defendant refused to extend the time for
disclosure of the report beyond a week, the plaintiffs were left with the choice of either
seeking leave of court to file the report out of time or do without the proposed case-inchief expert also lacks merit. If faced with such a motion under the circumstances
presented here—an expert overseas for up to three weeks—the court would most likely
have granted an extension.

Notably, the defendant was aware of the identity and

general subject matter of the report since Dr. Schnell had been disclosed as an expert
earlier. The defendant has not been prejudiced by the purported untimeliness of the
report, Buhler was in possession of all the information it needed before its expert was
deposed. Under the circumstances, the court will not exclude the testimony and the
court finds it can be presented in the plaintiffs’ case in chief rather than as rebuttal
testimony.
The court also rejects the defendant’s argument that Dr. Schnell’s opinions on
design are outside the area of his expertise. His opinions on design defects and
deficiencies in the owners’ manual, warnings and instructions were expressed from the
perspective of safety engineering and human factors. Dr. Schnell is an Industrial
Engineer with expertise in safety engineering. Again, the defendant’s criticisms go to
the weight rather than the admissibility of the evidence and are properly the subject of
cross-examination.

Accordingly,

IT IS ORDERED that:

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1.

Defendant Buhler’s motion in limine to exclude certain testimony of the

plaintiffs’ experts Kenneth R. Scurto, James E. Maness, and Dr. Thomas Schnell (Filing
No. 80) is denied.
Dated this 28th day of March, 2017.

BY THE COURT:
s/ Joseph F. Bataillon
Senior United States District Judge

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