Roberts v. Los Alamos National Security, LLC et al
-CLERK TO FOLLOW UP-ORDER granting the defendants and URs motions for summary judgment 56 , 61 , 66 , and 75 , and dismissing the complaint and defendants' third party claims in their entirety. Plaintiff's motion for partial summary ju dgment against Los Alamos 63 is denied, and plaintiff's motion to strike Los Alamos's answer 65 , Los Alamos's motion to strike plaintiff's statement of undisputed facts 80 , and UR's motion to strike plaintiff's surreply 86 are denied as moot. The Clerk is directed to close the case. Signed by Hon. David G. Larimer on 4/26/13. (EMA)
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
SAMUEL M. ROBERTS,
DECISION AND ORDER
LOS ALAMOS NATIONAL SECURITY, LLC,
Plaintiff Samuel Roberts, an employee of the University of Rochester (“UR”), brings this
action seeking compensation for serious injuries he received during an experiment with a High Yield
Neutron Temporal Diagnostic (colloquially referred to as the “light pipe,” after its most visible
component) at the UR’s Laboratory for Laser Energetics (“LLE”) on August 6, 2008. While
adjusting a pressure valve on the light pipe, it exploded, causing a support bracket to strike plaintiff's
head and neck, and rendering him a quadriplegic.
The laser light pipe was a piece of diagnostic equipment owned by the LLE, which uses a
streak camera and fast photo multiplier tube (“PMT”) to gather data about the time interval between
a laser shot and the resulting production of neutrons. Light was delivered from a scintillor or a
pressurized carbon dioxide cell to the camera and PMT by means of a highly polished steel pipe
approximately 2" in diameter, and the light pipe extended from a support bracket attached to a raised
personnel platform similar to a catwalk inside the target bay, down through the floor of the target
bay. The light pipe was kept in the LLE’s OMEGA Laser Facility, and was made available to
outside laboratories for various experiments. Although the outside laboratories could propose and
outline the experiments they wished to have conducted and the information they wished to gather,
the laser shots themselves were conducted solely by UR employees under the control of a Shot
There were five scientists who were identified as “principal investigators” for the
experiment in which plaintiff was injured: one from the UR, two from Los Alamos National
Security, LLC (“Los Alamos”), one from AWE, PLC (“AWE”), and one from the Massachusetts
Institute of Technology (“MIT”).
Barred by New York Workers Compensation Law from bringing an action against his
employer, UR, directly, plaintiff brings this negligence action against the employers of each the
non-UR “principal investigators” who were associated with the experiment. Those defendants have,
in turn, asserted claims against the UR as a third-party defendant.
The UR and the defendants have now filed summary judgment motions, primarily arguing
that the UR is directly and solely responsible for the plaintiff’s injuries, and that the defendants
neither owed nor assumed a duty of care toward the plaintiff. Plaintiff has cross moved for summary
judgment against Los Alamos alone, arguing, inter alia, that two Los Alamos employees were
members of a particular UR oversight body, the Facilities Advisory and Scheduling Committee
(“FASC”) which was responsible to ensure that the light pipe had been properly “qualified” for use,
and failed to do so.
The parties have also filed motions to strike. Plaintiff moves to strike Los Alamos’s answer
to the complaint. Los Alamos moves to strike plaintiff’s Statement of Undisputed Facts in support
of its motion for summary judgment against Los Alamos. The UR has moved to strike a surreply
which plaintiff allegedly filed without leave of Court.
For the reasons that follow, the defendants’ and UR’s motions for summary judgment (Dkt.
#56, #61, #66, and #75) are granted, and the complaint and cross claims are dismissed in their
entirety. Plaintiff’s motion for partial summary judgment against Los Alamos (Dkt. #63) is denied,
and plaintiff’s motion to strike Los Alamos’s answer (Dkt. #65), Los Alamos’s motion to strike
plaintiff’s statement of undisputed facts (Dkt. #80), and UR’s motion to strike plaintiff’s surreply
(Dkt. #86) are denied as moot.
Rule 56(c) provides that a moving party is entitled to summary judgment “if the pleadings,
depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any,
show that there is no genuine issue as to any material fact and that the moving party is entitled to a
judgment as a matter of law.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986). The
Court’s role in determining a motion for summary judgment is not “to weigh the evidence and
determine the truth of the matter but to determine whether there is a genuine issue for trial.” Id.
When considering a motion for summary judgment, the Court must draw inferences from underlying
facts “in the light most favorable to the party opposing the motion.” Matsushita Elec. Indus. Co. v.
Zenith Radio Corp., 475 U.S. 574, 587-88 (1986), quoting United States v. Diebold, Inc., 369 U.S.
654, 655 (1962).
Defendants’ Motions for Summary Judgment
In order to establish his negligence claims, plaintiff must prove that for each defendant that
it “owed the plaintiff a cognizable duty of care, that the defendant breached that duty, and that the
plaintiff suffered damages as a proximate result of that breach.” King v. Crossland Sav. Bank, 111
F.3d 251, 259 (2d Cir. 1997). Here, the initial and potentially dispositive question is whether, and
to what extent, any of the defendants owed the plaintiff a duty of care.
Defendants and the UR argue that UR, and UR alone, bears the liability for plaintiff’s
injuries. Plaintiff has received substantial sums under UR’s Workers Compensation policy, and will
continue to do so. The UR employed both plaintiff and his supervisor Dr.Vladimir Glebov, the
individual who asked plaintiff to make the pressure adjustment that resulted in his injuries. UR was
solely responsible for the design, fabrication, installation, maintenance and use of the light pipe.
Plaintiff argues, however, that each of the “investigators” for the experiment that was taking
place on August 6, 2008 were jointly and severally liable for his injuries. It is undisputed that none
of the investigators were permitted to, or attempted to, execute the experiment themselves:
conducting the experiment was within the sole authority and control of the UR.
None of the investigators were present in the target bay where the OMEGA Laser was housed
at the time of plaintiff’s injuries, and none of the investigators had any interaction with plaintiff or
any physical contact with, or control over, the light pipe. In fact, most of the investigators never
even saw the light pipe in person before the accident. MIT “investigator” Johan Frenje was not even
present at the OMEGA Laser Facility at the time of plaintiff’s injury.
While conceding that the AWE and MIT investigators do not appear to have played any
appreciable role or exercised any authority with regard to the safety of the experiment, plaintiff
argues that Dr. Hermann, a Los Alamos employee and the first-listed “principal investigator” for the
experiment, assumed a duty to plaintiff pursuant to several provisions of the UR’s OMEGA Laser
Facility Organization & Regulation Manual (“LFORM”), various Instructions of LLE, and the
Principal Investigator Eligibility Policy (“PIEP”).1 Specifically, plaintiff alleges that PIEP required
Dr. Herrmann to “use all reasonable efforts to comply with the . . . policies . . . [of the UR],”
including the need to “qualify” the light pipe prior to its use. (Dkt. #63-6). LLE Instruction 7700
provides specific procedures that a principal investigator must follow to fully qualify new equipment
(referred to at “diagnostics”) for use, including acquisition, assembly, fit and function tests and
qualification testing, during which the laser equipment is operated under the anticipated shot
conditions, and evaluated. (Dkt. #63-8 at UR8971-UR8977).
However, plaintiff’s interpretation of Instruction 7700 fails to consider a key fact: the light
pipe was not “new equipment.” It appears undisputed that the light pipe had already been in use at
the LLE for over two years prior to plaintiff’s injuries. The light pipe was installed and was
Los Alamos disputes that the principal investigator on the subject experiment was Dr.
Herrmann, and avers that the principal investigator responsible for the experiment was UR’s Dr.
Robert McCrory, and Director of the Laboratory for Laser Energetics. However, for purposes of
this motion, construing all inferences in plaintiff’s favor, the Court will assume arguendo that
Dr. Herrmann was, as plaintiff contends, the principal investigator, as that term is defined in the
shepherded through the beginning stages of the qualification process in 2005-2006, when the
relevant principal investigator was the UR’s Dr. Glebov.
In arguing that complete qualification (or re-qualification) of the light pipe should have been
performed in 2008, plaintiff relies heavily on the UR’s own investigation and Incident Report
concerning his accident, which identified the “failure of management to comply with the [LFORM]
that requires all new diagnostics to be fully qualified two weeks before the date of an experiment”
as one of the causes. The fact that the supporting facts which follow in the investigative report –
“that the light pipe’s design, assembly and installation were insufficient and done by inexperienced
and unqualified personnel” – occurred in 2005-2006 suggests that the investigators were referring
to the initial qualification procedures by UR “management” as incomplete. (Dkt. #63-1, Exh. 16).
The investigative report thus appears to place the responsibility for any oversight squarely
on UR “management” in 2005-2006 when the light pipe was installed, and there is no indication that
any of the non-UR principal investigators for the subject experiment in 2008 were considered
responsible for the accident (nor is there evidence anywhere in the record that Dr. Herrmann or any
other non-UR investigator had any knowledge that the light pipe was not fully qualified). This
conclusion appears to be consistent with the LFORM and PIEP, which contain no requirement that
non-UR principal investigators, such as Dr. Herrmann, confirm, re-assess or repeat qualification
procedures for diagnostics that have already been put into use by the UR. To the contrary, although
plaintiff contends that the Court should look to the LFORM in determining the responsibilities of
the various parties, the LFORM explicitly places the “overall responsibility for the safe operation
of the Laser Facility” squarely on the Laser Facility Manager and Laboratory Safety Officer
employed by the UR. (Dkt. #63-3 at UR218). Indeed, it appears undisputed that non-UR employees
seeking to use a diagnostic have no practical means to question whether it has completed UR’s
qualification process: rather, in describing the proposed experiment on UR’s Shot Request Form,
a principal investigator is simply presented with a list of diagnostics that are represented by the UR
as cleared and available for use, from which they can make selections. When Dr. Herrmann
completed the Shot Request Form for the subject experiment, that list included the light pipe.
Moreover, assuming arguendo that Dr. Herrmann was required to confirm whether
qualification procedures had been fully followed in 2006 and/or to complete the qualification process
if it had not already been finished, there is no evidence that by not doing so here, he enhanced the
risk to plaintiff. It is undisputed that the direct cause of plaintiff’s injuries was the faulty installation
(e.g., the use of incorrect bolts, shorter and fewer in number than those specified for the bracket) in
a support bracket for the light tube, which caused the bracket to give way, and to a lesser extent,
improper installation of the pressure control system and use of an insufficiently-rated regulating
valve. It is also undisputed that these defects dated back to the light tube’s initial installation in July
2006 that would have been invisible to the naked eye without disassembling the light pipe, and there
is no evidence that these components would have been expected to be uninstalled, removed,
disassembled and inspected as part of the qualification process.
I have considered the remainder of plaintiff’s arguments, and find them to be without merit.
I accordingly conclude that plaintiff cannot demonstrate that Los Alamos’s Dr. Herrmann or
any of the other defendants had any control over the installation, repair, maintenance, service, design,
qualification (or lack thereof) or hands-on use of the light pipe, nor did any of the defendants
supervise, direct or control plaintiff, or otherwise assume a duty of care toward him. Defendants’
motions for summary judgment are granted.
Plaintiff’s Cross Motion for Partial Summary Judgment Against Los Alamos
Plaintiff also notes that two Los Alamos employees were members of the FASC, a 12-
member committee made up of UR personnel and UR facility “users” from other institutions, which
performs scheduling functions, reviews experimental proposals, and evaluates the availability and
effectiveness of the facility’s existing equipment and diagnostics. Plaintiff contends that the FASC
had the duty and opportunity to review the safety of the light pipe and recommend improvements,
and did not.
However, as Los Alamos notes, the FASC does not make, and is not responsible for making,
safety-related recommendations concerning diagnostics. As set forth in the LFORM, the FASC
recommends improvements to existing laboratory capabilities, such as the development or
acquisition of new diagnostics. (Dkt. #63-3 at UR104-105). Although the FASC’s general
responsibilities include “review[ing] experimental proposals for compatibility and safety” (Dkt. #633 at UR104) (emphasis added), there is no indication in the LFORM or elsewhere that the FASC has
any authority or responsibility to physically examine or assess the safety (or qualification status) of
diagnostics, particularly diagnostics that are already in use. The review of diagnostics safety is a
component of the qualification process, which is undertaken solely by UR employees. Assuming
arguendo that the FASC did have the power or responsibility to review safety issues with existing
equipment, it is undisputed that the FASC has no power or authority to implement any changes
whatsoever. Such power and control lies exclusively with the UR.
As such, I conclude that the members of the FASC neither had nor assumed a duty of care
toward UR employees such as plaintiff. Accordingly, plaintiff’s cross motion for partial summary
judgment against Los Alamos is denied.
Plaintiff’s Motion to Strike Los Alamos’s Answer
Plaintiff moves to strike Los Alamos’s answer for failure to comply with a court order under
Fed. R. Civ. Proc. 37(b). Specifically, he argues that Los Alamos has failed to produce certain
discovery, allegedly ordered by Magistrate Judge Feldman when he ordered Los Alamos generally
to respond to plaintiff’s requests for admission.
Los Alamos contends that it did respond to the requests for admission, as ordered. Upon
review of the evidence, I am convinced that Los Alamos has, to the extent practicable, complied with
plaintiff’s requests for responsive data, including but not limited to e-mails and electronic data.
Although plaintiff suggests that Los Alamos’s alleged withholding of pertinent documents may have
impaired his ability to oppose summary judgment, insofar as further discovery could better establish
plaintiff’s allegation that Dr. Herrmann was the “lead principal investigator” responsible for the
subject experiment, such discovery would not change the outcome of the instant decision. As
discussed in detail above, even assuming that Dr. Herrmann was the “lead” principal investigator
for the subject experiment, neither his undisputed actions nor UR’s policies and procedures render
him liable for plaintiff’s injuries. Plaintiff’s motion to strike (Dkt. #65) is denied.
Los Alamos’s Motion to Strike Plaintiff’s Statement of Undisputed Facts
Los Alamos moves to strike plaintiff’s statement of undisputed facts, because it fails to cite
to the record, or rely on persons with first-hand knowledge, and includes a number of misleading
“undisputed facts.” In response, plaintiff has attempted to identify the source for each of the
undisputed facts he alleges. In reply, Los Alamos argues that several of plaintiff’s “undisputed facts”
do not jibe with the materials that allegedly support them. (For example, plaintiff erroneously
attributes certain statements by the UR to Los Alamos’s Dr. Herrmann).
The Court has considered the documentary and testimonial evidence supporting each of the
undisputed facts alleged by plaintiff, and to the extent that misstatements of that evidence have been
identified, I observe that they were likely unintentional, and have disregarded them and deferred to
the evidentiary “primary sources” instead in rendering the instant decision. As such, Los Alamos’s
motion to strike (Dkt. #80) is denied as moot.
UR’s Motion to Strike Plaintiff’s Surreply
The UR moves to strike plaintiff’s reply papers (Dkt. #72) as a surreply which was submitted
without leave of court. While acknowledging that Dkt. #72 should not have been filed without leave
of Court, I note that the Court’s consideration of that document, or lack thereof, would not alter the
outcome of the instant motions in any case. The motion to strike (Dkt. #86) is accordingly denied
For the foregoing reasons, the defendants’ and UR’s motions for summary judgment (Dkt.
#56, #61, #66, and #75) are granted, and the complaint and defendants’ third party claims are
dismissed in their entirety. Plaintiff’s motion for partial summary judgment against Los Alamos
(Dkt. #63) is denied, and plaintiff’s motion to strike Los Alamos’s answer (Dkt. #65), Los Alamos’s
motion to strike plaintiff’s statement of undisputed facts (Dkt. #80), and UR’s motion to strike
plaintiff’s surreply (Dkt. #86) are denied as moot. The Clerk is directed to close the case.
IT IS SO ORDERED.
DAVID G. LARIMER
United States District Judge
Dated: Rochester, New York
April 26, 2013.
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