Hodges et al v. Federal-Mogul Corporation, et al

Filing 149

MEMORANDUM OPINION. Signed by District Judge Michael F. Urbanski on 3/7/14. (mka)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF VIRGINIA
ROANOKE DIVISION
JEFFREY S. HODGES, et al.,

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Plaintiffs,
v.
FEDERAL-MOGUL
CORPORATION, et al.,
Defendants.

Civil Action No.: 7:12cv00362

By: Hon. Michael F. Urbanski
United States District Judge

MEMORANDUM OPINION
Plaintiffs brought this products liability and negligence action for serious burn injuries
sustained in an industrial accident at an automotive ball-bearing plant in Blacksburg, Virginia.
The matter is currently before the court on defendants’ motions to exclude the testimony of
plaintiffs’ expert witnesses and on the defendants’ motions for summary judgment. (Dkt. Nos.
75, 76, 79, 81, 84, 85, 87).1 For the reasons stated herein, the court will grant the motions to
exclude plaintiffs’ experts and grant defendants’ motions for summary judgment.
I.
The factory where the accident occurred is owned by defendant Federal-Mogul, where it
employs a manufacturing process bonding aluminum to steel. Aluminum dust, which is highly
combustible, is created as a byproduct. In order to remove this potentially dangerous dust from
1

Specifically, defendant Federal-Mogul Corporation (“Federal-Mogul”) has moved to exclude plaintiffs’ experts
and for summary judgment, (Dkt. Nos. 79 & 75 respectively); defendants Q-Tech Equipment & Services of the
Carolinas, L.L.C., Carrington Engineering Sales Co., and Carrington Engineering Sales (collectively “Carrington”)
have likewise moved to exclude plaintiffs’ experts and for summary judgment, (Dkt. Nos. 85 & 87 respectively);
defendant Dustex Corporation (“Dustex”) has also moved to exclude plaintiffs’ experts and for summary judgment,
(Dkt. No. 76 & 81 respectively); and finally, defendants Kirk & Blum Manufacturing Company and K&B Duct
(collectively “Kirk & Blum”) have moved for summary judgment (Dkt. No. 84).

the plant, Federal-Mogul worked with defendant Carrington, a manufacturer’s representative, to
design2 and install a dust collection system. Carrington served as a liaison between FederalMogul and two other companies: defendants Dustex and Kirk & Blum. A dust collection system
was installed in 2003 to remove the aluminum dust from the plant. The system utilizes fans and
ductwork to move the dust outside of the factory into an exterior dust collector called a
“baghouse.” The baghouse was designed by Dustex. Inside the ductwork, just beyond the
exterior wall of the plant, was a “back-blast damper.” Plaintiffs assert that the purpose of the
damper was to stop an explosion or conflagration occurring in the baghouse from propagating
through the ductwork and into the plant. The damper was designed by Kirk & Blum.3
Plaintiffs Jeffrey S. Hodges, Tommy Lee Bonds, and John Paul Spangler are employed
by non-party LCM Corporation (“LCM”), a company in the business of hazardous waste
removal. Plaintiffs themselves are trained and certified in hazardous waste removal. In 2010,
Federal-Mogul hired LCM to inspect for and, if necessary, clean up any aluminum dust in the
plant’s ductwork system. The inspection began on December 30, 2010. LCM determined that
all of the ducts were clean, save one, which had a buildup of three to five inches of dust inside it.
LCM returned the next day to clean the dust out of this duct. While inside the plant and
performing their duties for LCM cleaning the ductwork on December 31, 2010, plaintiffs were
burned by fire emanating from the ductwork. The exterior baghouse also exploded.
Plaintiffs contend that the source of the fire was the exterior baghouse and “[a]s a result,
a deflagration or flame front exited the baghouse where the explosion initiated, and propagated
past the flash protector [i.e. damper] that should have stopped it and continued through the

2

Carrington denies any involvement in the design process.

3

Kirk & Blum asserts that the damper was not intended to serve as a fire or explosion containment device, but was
intended merely to prevent the backflow of air from the baghouse into the plant.

2

external wall of the plant facility and into the ductwork internal to the plant where the plaintiffs
were involved in the cleaning operation.” (Compl., Dkt. No. 1, at 5). Plaintiffs assert that “[t]he
explosion and its progression from the baghouse outside the plant propagating to the interior of
the plant was captured by surveillance video.” Id. Additionally, plaintiff Jeffrey S. Hodges
testified at his deposition that he witnessed the explosion emanate from the baghouse and travel
towards him through the ductwork. Plaintiffs’ experts have expressed the opinion that (1) the
explosion originated in the baghouse; and (2) the explosion was caused by an exothermic
reaction resulting from the interaction of aluminum dust and condensation.
Defendants have a different theory of cause and origin. Defendants assert that plaintiffs
themselves caused the ignition of the aluminum dust and resulting fire and explosion by
vacuuming up the highly combustible aluminum dust with an industrial vacuum that was (1) not
grounded and (2) had a PVC pipe extension duct-taped to the end of it. Defendants argue that
the resultant static electricity was the obvious source of ignition and that the deflagration spread
both out the open ductwork and inside the plant, where it ignited the tyvek suits worn by the
plaintiffs, and down the opposite direction through the ductwork into the exterior baghouse
which, consequently, exploded. Defendants emphasize that the explosion occurred shortly after
plaintiffs began utilizing the PVC pipe, and that plaintiffs’ own testimony establishes the
presence of static electricity in the ductwork.4

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Both plaintiffs Hodges and Bonds, the LCM employees who were on a scissor lift handling the vacuum hose when
the accident occurred, testified that they felt static electricity while vacuuming before Hodges saw the fireball.
Hodges testified:
Q: In the few minutes leading up, you have the pipe in there, did you feel any
static electricity?
A: Yes
Q: Did it sting you?

3

Defendants assert that plaintiffs’ experts’ opinions on origin and cause should be
excluded as unreliable pursuant to Federal Rule of Evidence 702. As such, Federal-Mogul,
Carrington, and Dustex have moved to exclude plaintiffs’ experts. All defendants have moved
for summary judgment. Plaintiffs oppose these motions.
II.
In order to determine whether there is evidence sufficient to create a triable jury issue, the
court must first decide the pending motions to exclude the testimony of plaintiffs’ experts.
Expert testimony is governed by Federal Rule of Evidence 702 (“Rule 702”), which states that:
A witness who is qualified5 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;

A: I don’t know about the term sting or bite or whatever, but you feel it.
(Hodges Dep., Dkt. No. 107-8, at 167:6-18). Bonds testified the same:
Q: While you were [vacuuming] did you encounter any of those static electricity
bites?
A: Yes.
Q: And how would you describe that?
A: It hurts.
Q: So, you could feel that shock as you were holding the flex hose?
A: Yes, sir.
Q: Did you say anything to Hodges or Spangler about that static electricity
charge?
A: No, they knew it.
(Bonds Dep., Dkt. No. 107-9, at 102:12-22).

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For the purposes of the opinion, the court assumes without deciding that plaintiffs’ proffered experts are qualified
to render the opinions they have provided.

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(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. “Rule 702 was intended to liberalize the introduction of relevant expert
evidence.” Bombardiere v. Schlumberger Tech. Corp., 934 F. Supp. 2d 843, 845 (N.D.W. Va.
2013) (quoting Westberry v. Gislaved Gummi AB, 178 F.3d 257, 261 (4th Cir. 1999)).
Nevertheless, in order to be admissible under Rule 702, an expert opinion must be both relevant
and reliable. PBM Products, LLC v. Mead Johnson & Co., 639 F.3d 111, 123 (4th Cir. 2011)
(citing Daubert v. Merrell Dow Pharmaceuticals, 509 U.S. 579, 597 (1993)). In assessing
whether proffered expert opinion evidence is sufficiently relevant and reliable, the court acts as a
gatekeeper. United States v. Moreland, 437 F.3d 424, 431 (4th Cir. 2006) (citing Kumho Tire
Co. v. Carmichael, 526 U.S. 137, 141 (1999)). Here, there is no issue as to relevancy of the
expert opinions. The question is whether those opinions are sufficiently reliable.
Determining the reliability of an expert opinion is a flexible inquiry, one which will
necessarily depend on both the nature of the proffered opinion and the context in which it is
offered. See United States v. Hassan, No. 12-4067, 2014 WL 406768, at *19 (4th Cir. Feb. 4,
2014) (observing that the Daubert test is flexible); see also Pugh v. Louisville Ladder, Inc., 361
F. App'x 448, 452 (4th Cir. 2010) (unpublished) (citing United States v. Wilson, 484 F.3d 267,
274 (4th Cir. 2007)) (noting there is no mechanistic test for determining the reliability of an
expert’s proffered testimony); Westberry, 178 F.3d at 260 (4th Cir. 1999) (citations omitted)
(noting both the flexible nature of the reliability inquiry and the fact that the particular factors
applicable in a given case will depend upon the unique circumstances of the expert testimony

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involved). Indeed, although the Supreme Court in Daubert listed several factors that may be
used in evaluating the reliability of proposed expert testimony, ultimately “Daubert’s list of
specific factors neither necessarily nor exclusively applies to all experts or in every case.”
Kumho Tire Co., Ltd. v. Carmichael, 526 U.S. 137, 141 (1999).
In the context of cause and origin opinions as to fires and explosions, courts have turned
to National Fire Prevention Association (NFPA) 921 methodology for guidance in determining
the reliability of expert opinions. See, e.g., United Fire & Cas. Co. v. Whirlpool Corp., 704 F.3d
1338, 1341 (11th Cir. 2013); Fireman's Fund Ins. Co. v. Canon U.S.A., Inc., 394 F.3d 1054,
1057 (8th Cir. 2005); Tunnell v. Ford Motor Co., 330 F. Supp. 2d 731, 734 (W.D. Va. 2004).
“NFPA 921 is authoritative in the fire investigation industry and NFPA 921 is the national guide
for standards in fire investigations.” Layton v. Whirlpool Corp., No. CIV.A. 3:05-0473, 2007
WL 4792438, at *3 (S.D.W. Va. Feb. 9, 2007) (citing Canon U.S.A., 394 F.3d at 1057-58 and
Travelers Indem. Co. v. Indus. Paper & Packaging Corp., No. 3:02-CV-491, 2006 WL 1788967,
at *4 (E.D. Tenn. 2006)). As such, the court will apply NFPA 921 to determine whether the
opinions of plaintiffs’ experts are sufficiently reliable under Rule 702.
While the court is obligated to examine an expert’s principles and methods, as well as the
application of those methods to the particular facts of a case, the court should not attempt to
determine the correctness of the conclusions reached. Pugh, 361 F. App'x at 452 (citing
Moreland, 437 F.3d at 431). Instead, the court’s duty is to ensure that an expert employs “‘the
same level of intellectual rigor that characterizes the practice of an expert’ in the field of fire
investigation.” Fireman's Fund Ins. Co. v. Tecumseh Products Co., 767 F. Supp. 2d 549, 556 (D.
Md. 2011) (quoting Kumho Tire, 526 U.S. at 152).

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Here, plaintiffs have designated two cause and origin experts: Patrick J. McGinley and
Martin Schloss. McGinley is a former firefighter and a professional fire cause and origin expert.
Schloss is an engineer who specializes in industrial baghouse design.
A. Cause
Both McGinley and Schloss conclude in their expert reports that the explosion at the
Federal-Mogul plant was caused by an exothermic reaction in the baghouse. An exothermic
reaction generates heat; it can occur when aluminum dust and water interact. Specifically,
McGinley states in his expert report that “the most probable cause of the event was an
exothermic aluminum dust/water combination which led to a heat buildup within the nonoperating bag house and ignition of the airborne particulate that exploded within the bag house
itself.” (McGinley Report, Dkt. No. 83-2, at 7). Schloss states in his expert report that he “can
identify the most likely ignition sources [sic] as exothermic heating of the fine combustible
aluminum dust in the baghouse.” (Schloss Report, Dkt. No. 83-3, at 32).
It is clear that neither McGinley nor Schloss utilized a sufficiently reliable methodology
to render such a cause opinion. First, courts have “required experts to demonstrate that objects
and materials are capable of behaving in the manner they hypothesize under the conditions of the
event in question.” Tecumseh Products, 767 F. Supp. 2d at 555 (citing Higginbotham v. KCS
Int'l, Inc., 85 F. App'x 911, 916 (4th Cir. 2004) (unpublished)). Neither McGinley nor Schloss
meets this standard. Both experts provide no more than a broad overview of the general concept
of an exothermic reaction: that it can result from a mixture of aluminum dust and water and that
the result is heat. Neither provides a description of how the necessary quantities and/or
proportions of those two elements combined in the baghouse at issue to produce sufficient heat
to ignite the combustible aluminum dust particulates. A heat source is not equivalent to an

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ignition source. An ignition source must generate sufficient heat to ignite the available fuel. A
fire cause opinion that fails to establish a heat source capable of generating sufficient heat to
serve as an ignition source is unreliable under Rule 702. See Truck Ins. Exch. v. MagneTek,
Inc., 360 F.3d 1206, 1213 (10th Cir. 2004) (upholding the district court’s exclusion of an expert
opinion that a ballast caused a fire where the expert did not have “any evidence that the ballast
could generate enough heat to ignite combustibles in the ceiling”); Tecumseh Products, 767
F. Supp. 2d at 555 (excluding an expert’s opinion where the expert did not determine, inter alia,
the ignition temperature of the fuel source he identified or how long the fuel source would have
to be exposed to that temperature).
Instead, McGinley simply notes that a combustible dust explosion can result from an
exothermic reaction under certain “ideal circumstances.”6 Yet McGinley expressly admits in his
deposition testimony that he cannot say what the “ideal circumstances” necessary for an
exothermic reaction inside the baghouse would be.
Q: [A]s you sit here now, within your opinions you can’t say what
the ideal circumstances are for the [] bag house and the aluminum
dust particulates that were present in it on December 31, 2010; is
that correct?
A: Other than to say that it was reached and an explosion occurred,
sir, that’s correct, sir.
Q: . . . because an explosion occurred, then you’re saying those
conditions must have been met in this case?
A: Absolutely.
(McGinley Dep., Dkt. No. 107-13, 167:6-18). It is plainly insufficient for McGinley to conclude
that the elements necessary for an exothermic reaction were presented in the baghouse based
merely on the fact an explosion occurred. This is precisely the sort of fire cause opinion
6

McGinley also does not make clear whether his theory involves ignition of a dust cloud, or of the hydrogen gas
that would result as a byproduct of an exothermic reaction. (See McGinley Dep., Dkt. No. 107-13, at 86:4-17).

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methodology rejected by the court in Pride v. BIC Corp., 54 F. Supp. 2d 757 (E.D. Tenn. 1998),
aff'd, 218 F.3d 566 (6th Cir. 2000). In Pride, plaintiffs alleged that a fire which originated in the
left shirt pocket of plaintiff’s deceased husband was caused by a defect in a BIC lighter. The
court rejected the cause opinion of plaintiff’s experts, finding that their opinions were not “not
supported by any methodology.” Id. at 762. “Rather, [their cause] opinion[s] appear[ed] to be
based on the conclusion that the lighter was the only source of ignition in the area and therefore
that a defect in the lighter must have caused the fire.” Id. (emphasis in original). “[T]he jury,”
the court concluded, “would not be aided by the unverified speculations of the plaintiff’s
experts.” Id. The Sixth Circuit affirmed the district court’s decision to exclude the proffered
expert testimony on the grounds it was insufficiently reliable. Pride v. BIC Corp., 218 F.3d 566
(6th Cir. 2000). The jury in this case would likewise not be aided by the speculative assertion
that the circumstances necessary for an exothermic reaction were present in the baghouse when
the experts cannot say what those circumstances might be.
Schloss also cannot establish that the conditions necessary for an exothermic reaction
existed in the baghouse at the time of the event in question. While there is no question that
aluminum dust was present, neither Schloss nor McGinley can establish that water was present in
the baghouse. Both simply speculate that water might have been present through condensation –
for example, a possible temperature differential inside the bag house and the outside environment
– without offering any evidence that it was in fact present. Neither expert provides any witness
accounts or physical evidence of the presence of condensation. Neither provides any models,
calculations, or experimental testing to indicate that condensation would have been possible, let
alone probable, under the conditions of the baghouse at the time of the explosion. In other
words, plaintiffs’ experts speculate that condensation was present and that such condensation

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interacted with the aluminum dust to cause the baghouse to explode.7 Such speculation does not
rise to the level of a reliable expert opinion as to the cause of a fire or explosion. See Tunnell v.
Ford Motor Co., 330 F. Supp. 2d 731, 734 (W.D. Va. 2004) (excluding an expert’s fire cause
opinion where it was based on the speculative presence of high alcohol content liquor inside the
vehicle at issue); see also Tyger Const. Co. Inc. v. Pensacola Const. Co., 29 F.3d 137, 142 (4th
Cir. 1994) (citation omitted) (“An expert’s opinion should be excluded when it is based on
assumptions which are speculative and are not supported by the record.”); Sparks v. Gilley
Trucking Co., Inc., 992 F.2d 50, 54 (4th Cir. 1993) (citation omitted) (“[A] court may refuse to
allow a generally qualified expert to testify if his factual assumptions are not supported by the
evidence.”).
Moreover, McGinley does not even fully stand by his cause opinion. During his
deposition, McGinley repeated referred to an exothermic reaction as a “possibility.” For
example, he testified as follows:
Q: How have you tested your hypothesis that enough water or
enough condensate accumulated to cause this explosion?
A: I didn’t say that that specifically did cause the explosion. I said
it’s a possibility.
Q: But that’s your opinion is that that’s what happened, right?
A: It’s my opinion that that’s a possibility. . . . these events occur
in bag houses and the initiating mechanisms, the initial mechanism
the vast majority of time is never identified.
(McGinley Dep., Dkt. No. 107-13, at 98:7-20; see also id. at 79:12-13 (“I’m trying to give you
what I believe are possibilities.”)). Perhaps recognizing this hedging on the part of their expert,
7

 Of some moment, both McGinley and Schloss do no more than speculate as to why the baghouse exploded due to
an exothermic reaction on the day in question as opposed to the prior seven years the dust collection system had
operated without incident. In short, the fundamental problem with plaintiffs’ experts’ opinions is that they dismiss
the static electricity generated by the vacuuming operation as the source of the ignition of the aluminum dust
without providing any credible alternative.

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plaintiffs themselves have now disavowed an intention to rely on their experts’ cause opinions.
In their response in opposition to the defendants’ motions to exclude, plaintiffs state that they
intend, “with regard to the ‘cause’ issue, i.e. the ignition source within the baghouse, . . . [to]
limit the presentation of the expert testimony to identify[ing] conditions existing in the baghouse
at the time of the explosion that might have served as a source of ignition.” (Br. in Opp’n re
Mots. to Exclude Test. of McGinley and Schloss, Dkt. No. 102, at 2-3) (emphasis added). This
retraction is consistent with the tentative nature of McGinley’s and Schloss’ opinions as to cause.
At most, both experts state that an exothermic reaction can occur in a baghouse. But the fact that
an exothermic reaction can occur under certain conditions is no substitute for evidence that an
exothermic reaction did in fact happen here. An expert “must demonstrate not only that his
hypothesis is plausible, but that it, and not some alternative hypothesis, best explains the event in
question.” Tecumseh Products, 767 F. Supp. 2d at 555 (emphasis in original) (citing
Higginbotham v. KCS Int'l, Inc., 85 F. App'x 911, 916 (4th Cir. 2004) (unpublished)).
In light of the foregoing, the court is compelled to exclude the plaintiffs’ experts’
opinions that an exothermic reaction caused the baghouse to explode. Neither expert provided
anything more than conjecture that conditions conducive to such a reaction were present. As
such, their opinions as to cause do not survive Daubert scrutiny. The court must next address
their opinions as to the origin of the explosion.
B. Origin
Although the speculative cause opinions of plaintiffs’ experts cannot be admitted,
plaintiffs argue that an inability to offer such opinions is not necessarily fatal to their case.
Because their products liability claims are based on allegedly faulty safety devices (the damper
and the venting capacity of the baghouse), and because the risk of explosions in baghouses is

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well known, plaintiffs assert that the critical issue is the place of origin of the explosion,
regardless of the cause.8 The court therefore turns to the reliability of McGinley’s and Schloss’
origin opinions.
As an initial matter, it must be noted that the term “origin opinion” can refer to two
distinct concepts. First, there is “area of origin,” which is defined as “a structure, part of a
structure, or general geographic location within a fire scene in which the ‘point of origin’ is
reasonably believed to be located.” NFPA 921-17.1 Second, there is “point of origin,” which is
defined as “the smallest location a fire investigator can define, within an ‘area of origin,’ in
which a heat source, source of oxygen, and a fuel interacted with each other and a fire or
explosion began.” Id. Because neither McGinley nor Schloss can reliably establish the
interaction of a heat and fuel source capable of starting the explosion at issue, it is clear that they
cannot give a point of origin opinion. Nevertheless, there remains the possibility that plaintiffs’
experts can render a sufficiently reliable opinion as to area of origin. NFPA 921-17.2.1.3 (“Not
identifying a point of origin will not necessary preclude determining an origin and cause.”); see
also Bryte ex rel. Bryte v. Am. Household, Inc., 429 F.3d 469, 478 (4th Cir. 2005) (noting that
an expert was able to identify the “area of origin” of a fire, not the “point of origin”). Thus, for
the remainder of this opinion, the court will use the term “origin opinion” to refer to an opinion
regarding the explosion’s area of origin.
Notwithstanding defendants’ arguments to the contrary, it does not automatically follow
that an expert incapable of rendering a reliable cause opinion is likewise incapable of rendering a
8

 Plaintiffs liken this case to one involving a defective airbag in a vehicle that strikes a tree. It matters not, they
contend, why the vehicle struck the tree. What matters is that the airbag failed. In the same manner, plaintiffs argue
that it does not matter why the fire and explosion started, what matters is that the baghouse was insufficiently vented
resulting in its explosion and the damper did not keep the resultant fire from leaving the baghouse and travelling
inside the plant via the ductwork to burn the plaintiffs. Although plaintiffs argue that they need not prove the reason
for the fire and explosion, they acknowledge that they must prove that the conflagration started in the baghouse,
rather than the ductwork. As will be seen, this is a burden they cannot meet.

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reliable origin opinion. NFPA 921 clearly delineates “origin” and “cause” as distinct inquires,
addressing each in separate chapters (seventeen and eighteen, respectively). Indeed, determining
the origin of a fire and/or explosion is generally a prerequisite for rendering a valid cause
opinion. NFPA 921-18.1 (“Fire cause determination generally follows origin determination.”).
Thus, it is inaccurate to characterize cause and origin opinions as mutually co-dependent. In
fact, a cause opinion is usually dependent upon an origin opinion. Id. (“Generally, a fire cause
determination can be considered reliable only if the origin has been correctly determined.”); see
also id. at 17.1 (“Generally, if the origin cannot be determined, the cause cannot be determined,
and generally, if the correct origin is not identified, the subsequent cause determination will also
be incorrect (emphasis added)). Thus, it is certainly possible for a fire investigator to reach a
valid origin opinion and then be unable to proceed further in the sequential process to establish
cause. This fact was tacitly acknowledged in Tunnell v. Ford Motor Co., in which the court
permitted the testimony of a fire origin expert while simultaneously excluding that expert’s
speculative cause opinion. 330 F. Supp. 2d 731, 738-42 (W.D. Va. 2004); see also Dodson v.
Ford Motor Co., No. C.A. PC 96-1331, 2006 WL 2405868, at *5 (R.I. Super. Aug. 17, 2006)
(unpublished) (discussing NFPA 921) (“Not surprisingly, the methodologies used to determine
‘area of origin’ and ‘point of origin’ are different from those used to determine ‘cause.’ As a
result, the methodologies used to determine ‘area of origin’ and ‘point of origin’ must be
evaluated separately from those used to determine ‘cause.’”).
Although a cause opinion is not a requirement of an origin opinion, it is clear that the
absence of a cause can substantially impact the reliability of an origin opinion. “The lack of a
competent ignition source at the hypothesized origin should make th[at] hypothesis subject to
increased scrutiny.” NFPA 921-17.6.1.1. An origin opinion lacking a cause is even more

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problematic where, as here, there is a clearly established source of ignition – static electricity –
elsewhere. “[T]he investigator who eliminates a potential ignition source because it is ‘not in the
area of the hypothesized origin,’ needs to be especially diligent in testing the origin hypothesis
and in considering alternate hypotheses.” NFPA 921-17.6.1.1. In their expert reports and
deposition testimony, both McGinley and Schloss readily admit that the static electricity from the
ungrounded industrial vacuum and PVC pipe used by the plaintiffs is a possible source of
ignition. Both have dismissed it at the cause of the explosion because it is not within their
hypothesized area of origin. Yet neither McGinley nor Schloss demonstrated the special
diligence called for by NFPA 921-17.6.1.1.
McGinley and Schloss reject static electricity in the ductwork as the cause of the ignition
of the aluminum dust resulting in the fire and explosion based primarily on two factors: (1) the
eyewitness account of one of the plaintiffs, Jeffrey Hodges, and (2) video footage captured by a
security camera inside the plant. McGinley also gives the opinion that, had the explosion
initiated in the ducts inside the plant, the ductwork would have been “substantially different” in
that there would have been “substantial deformation.” (McGinley Report, Dkt. No. 83-2, at 6).
Specifically, McGinley states that “most probably [the explosion] would have caused [the
ductwork] to separate at the seams resulting in a much more physically damaged configuration
than was experienced in this event.” Id. Schloss, for his part, asserts that the ductwork is a less
ideal environment for creating an aluminum dust cloud than the baghouse. He asserts that this is
so because of the limited space for such a cloud to form in ductwork and because the smaller,
more volatile dust particles would not have stayed in the ductwork, but instead traveled to the
baghouse. (Schloss Report, Dkt. No. 83-3, at 32-33). As will be demonstrated, these opinions

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are not supported by a sufficiently reliable methodology for rejecting static electricity caused by
the plaintiffs’ ungrounded vacuuming as the cause of the fire and explosion at issue in this case.
(i) Testing
“Testing . . . is often a key component of the Daubert inquiry, and the failure to properly
test a hypothesis is often grounds for excluding expert testimony in this jurisdiction.” Fireman's
Fund Ins. Co. v. Tecumseh Products Co., 767 F. Supp. 2d 549, 554-55 (D. Md. 2011) (citing
Marsh v. W.R. Grace & Co., 80 Fed. Appx. 883 (4th Cir. 2003) (unpublished) and Tunnell v.
Ford Motor Co., 245 Fed. Appx. 283, 287 (4th Cir. 2007) (per curiam)). Nevertheless, neither
Daubert nor NFPA 921 has a strict physical testing requirement. Layton v. Whirlpool Corp.,
CIV.A. 3:05-0473, 2007 WL 4792438, at *3 (S.D.W. Va. Feb. 9, 2007) (citing Travelers Indem.
Co. v. Indus. Paper & Packaging Corp., No. 3:02-CV-491, 2006 WL 1788967, at *4 (E.D. Tenn.
2006) (“[E]xpert testimony has been held to be consistent with NFPA 921 and satisfy Daubert
without independent testing.”)).
Courts have been somewhat imprecise in their usage of the term “testing” in the context
of expert opinion reliability. As a result, an initial review of the case law on the subject indicates
some tension among authorities. Compare Kingsley v. Brenda & Gene Lummus, Inc.,
1:11CV32, 2012 WL 727091, at *7 (W.D.N.C. Mar. 6, 2012) (quoting Tunnell v. Ford Motor
Co., 330 F. Supp. 2d 707, 725 (W.D. Va. 2004)) (noting Daubert “does not require an expert to
perform testing before his opinion is admissible.”); id. (“[L]ack of testing may be relevant to the
weight attributed to [an expert’s] opinions, it does not render his opinions inadmissible per se
under Daubert.”); Main St. Am. Grp. v. Sears, Roebuck, & Co., CIV JFM-08-3292, 2010 WL
956178, at *5 (D. Md. Mar. 11, 2010) (“Case law is clear that testing is not a requirement for
admissibility under Daubert and the Federal Rules of Evidence.”), with Tecumseh Products Co.,

15

767 F. Supp. 2d at 555 (excluding an expert opinion where the expert “never tested his
hypothesis, as both courts and NFPA 921 emphatically require”); id. (citations omitted)
(“Exactly how rigorous such [] test[ing] would need to be to meet Daubert’s threshold of
reliability is not at issue in this case; it is a sufficient basis for excluding [the expert’s] testimony
to observe that he performed no testing at all.” (emphasis in original)).
In attempting to resolve this tension, the court notes that any rigid testing requirement
would be incompatible with the flexible nature of the Daubert inquiry. See Oglesby v. Gen.
Motors Corp., 190 F.3d 244, 250 (4th Cir. 1999) (citing Daubert, 509 U.S. at 593-94)
(“Reliability of specialized knowledge and methods for applying it to various circumstances may
be indicated by testing . . . . But at bottom, the court’s evaluation is always a flexible one[.]”
(emphasis added)). Nevertheless, it seems clear that the absence of physical testing or modeling
in an expert’s methodology can impact the reliability of that expert’s opinion. The Fourth
Circuit has repeatedly upheld district court decisions excluding expert opinions as unreliable due
to a lack of testing. See Marsh v. W.R. Grace & Co., 80 F. App'x 883, 886 (4th Cir. 2003)
(unpublished) (internal citations omitted) (“Daubert first suggests that [courts] should evaluate
whether an expert’s opinion is subject to testing . . . . The record supports the district court’s
decision that [the proffered expert’s] opinion is unreliable because it cannot be tested or verified
consistently, and therefore, the court did not abuse its discretion.”); Oglesby, 190 F.3d at 250
(affirming the district court exclusion of an expert’s opinion that a particular device was
defective where the expert “did not test it” and “did not apply any calculations”).9 It is likewise
clear that NFPA 921 recognizes both modeling and experimental testing as tools which can be
utilized to help determine fire origin. See NFPA 921-17.6.2.2 (Fire Modeling); id. at 17.6.2.3
9

 Similarly, in Pride v. BIC Corp., 218 F.3d 566 (6th Cir. 2000), in upholding the district court’s exclusion of an
expert the Sixth Circuit noted that the proffered expert “did not do any testing,” but gave an opinion “based on the
reports, depositions, pictures and other records he reviewed.” Id. at 572, 578. 

16

(Experimental Testing). Under the particular facts of this case, the lack of physical testing,
calculations, or modeling undercuts the reliability of plaintiffs’ experts’ origin opinions.
In determining that the ductwork would have appeared “different” due to over
pressurization had the ignition initiated within it, McGinley did not perform tests of similar
ductwork to determine how it would respond to such an ignition event. Nor did he perform any
modeling or calculations to determine how much pressure would be needed to cause the
deformity he believes would have resulted. Instead, he simply relies on the fact that he has
observed many fire/explosion scenes over his long career as a fire cause and origin expert and,
previously, as a firefighter and fire investigator. Such experiential expert testimony is not per se
unreliable. “The Fourth Circuit has acknowledged that, although experiential expert testimony
does not rely on anything like a scientific method, such testimony is admissible under Rule 702
so long as an experiential witness explains how his experience leads to the conclusion reached,
why his experience is a sufficient basis for the opinion, and how his experience is reliably
applied to the facts.” The Harvester, Inc. v. Rule Joy Trammell Rubio, LLC, No. 3:09-CV-358,
2010 WL 2653373, at *2 (E.D. Va. July 2, 2010) (internal quotation marks and alternations
omitted) (quoting from United States v. Bynum, 604 F.3d 161, 167 (4th Cir. 2010)). But simply
noting his history of past observations is insufficient to explain how McGinley arrived at his
conclusion here. McGinley simply states he would expect the ductwork to have been deformed
due to over pressurization. This conclusory statement is readily distinguishable from reliable
experiential expert witness testimony. Cf. Bynum, 604 F.3d at 167-68 (affirming the admission
of expert testimony as to the authenticity of images of child pornography where the expert
“testified as to exactly the steps he takes in determining the authenticity of images under the
approved FBI ‘checklist,’ including ascertaining an image’s resolution and focus, examining its

17

sharpness and depth, comparing it to images in the FBI database, and identifying in the image
certain human characteristics – like skin, teeth, ears, and hair – that are difficult to recreate by
computer”).
McGinley’s untested conclusion that the ductwork would have been deformed by the
ignition of aluminum dust within it is analogous to the expert opinion at issue in Oglesby v.
General Motors Corp. In Oglesby, the Fourth Circuit upheld the exclusion of an expert who
sought to testify that the spontaneous detachment of a radiator hose was caused by a defect in a
plastic inlet connector piece. 190 F.3d at 247. Similar to McGinley’s investigation here, “[i]n
preparing to render his expert opinion, [the expert in Oglesby] looked at the broken plastic
connector and the piece which broke off, took physical measurements of the connector, and
photographed the parts.” Id.10 This constituted the entirety of the expert’s investigation; he did
not perform any tests or calculations to determine the strength of the part or the stresses to which
it was subjected. Id. at 247-48. The Fourth Circuit observed that:
Under generally known engineering principles, stress applied in a
given amount in a particular direction would theoretically cause a
plastic part to reshape itself, if hot enough, or to break. To
conclude, however, that a particular stress caused a particular
plastic part to reshape itself or to break, the engineer would have to
know the amount of the particular stress and the stress resistance of
the part at various temperatures in order to ascertain that the
particular stress overcame the stress resistance of the part. [The
proffered expert] conceded, however, that he had none of the
necessary data and therefore could not make any such calculations
for the part in this case. . . .
The district court recognized this flaw, concluding that [proffered
expert] opinion lacked “any probative value” because it lacked
“the reliability, foundation and relevance necessary for
admissibility” under Federal Rule of Evidence 702.

10

It does not appear that McGinley took any measurements during the course of his fire investigation in this case.
(McGinley Dep., Dkt. No. 107-13, at 27:14-17).

18

Id. Similarly here, generally known principles of physics make clear that over pressurization
events can cause deformities. Yet to conclude that a particular event would cause a given level
of deformity (or any deformity) requires knowledge of the particular stress generated and the
stress resistance of the substance at issue. McGinley provides neither.
As for Schloss, his opinion that the ductwork is a less ideal environment for creating an
aluminum dust cloud than the baghouse does not establish that a dust cloud did not or could not
form in the ductwork. Nor does he provide any measurements, calculations, or physical testing
to show the relative likelihood of dust cloud formation inside the baghouse versus inside the
ductwork. His bald assertion that the baghouse provided superior conditions for dust cloud
formation is insufficient. “[N]othing in either Daubert or the Federal Rules of Evidence requires
a district court to admit opinion evidence that is connected to existing data only by the ipse dixit
of the expert.” Gen. Elec. Co. v. Joiner, 522 U.S. 136, 146 (1997).
(ii) Eyewitness Account
Plaintiffs experts, like plaintiffs themselves, rely heavily on the testimony of plaintiff
Hodges. Hodges’ testimony regarding what he saw of the explosion is as follows:
I was standing with my left hand learning on the pipe with the
flashlight in my hand and looking through the duct as to what we
were vacuuming.
Looking through the pipe, you know, I could see the 3 to 5 inches
of dust. It kind of varied through it all and went all the way back
to outside the building where there was a turn or something in the
duct. You could see past that.
There was a damper or backsplash or whatever they come up with
for the name of this thing. That was in the pipe and it was open
because of the material that was in the pipe holding it open. I
could see past that and into a curve in the pipe which went into the
baghouse.

19

I was standing there and at that time from that end, from the
baghouse end and past the damper, there was a flash of a fireball
and the next thing I know I’m on fire.
(Hodges Dep., Dkt. No. 107-8, at 40:2-17). Hodges also specifically testified as to configuration
of what he apparently believed to be the damper.
Q: Was it a flap with a hinge at the top?
A: I don’t know. I know that I could see the flapper that was in
there and to me it looked like it pivoted from the center, but I don’t
know.
Q: That’s what I’m trying to find. Where you saw that could you
see a gap on the side, the top, or the bottom?
A: I could see over the top of it from the center up.
(Id. at 101:1-9). However, due to the actual configuration of the damper, this description is
physically impossible. There is no dispute of fact that the damper was hinged at the top. (See
Schloss Dep. Ex. 5, Dkt. No. 107-17, at 286).11 As such, there is no possible way Hodges could
have seen over the top of it to the portion of the ductwork beyond. Neither the fact that Hodges
admitted that he was unsure how the damper hinged, nor his insistence that he did, in fact, see
past the damper, (Hodges Dep., Dkt. No. 107-8, at 40:16; id. at 75:11-13), alters this simple fact.
Whatever it was Hodges saw, he saw “over the top of it from the center up” – therefore to
conclude Hodges was in fact seeing past the damper is to ignore the damper’s undisputed
configuration. Consequently, Hodges’ testimony that he observed the explosion traveling from
beyond the damper cannot be a valid basis on which to conclude that the origin of the explosion
was inside the baghouse located on the far side of the damper from Hodges.
During his deposition, McGinley labored at length to explain how Hodges could have
nevertheless seen past the damper. He posits that the “geometry” of the dust in the ductwork
11

 In layperson’s terms, the damper resembles a large, metal toilet seat, oriented vertically with the hinge on top, the
outside of the seat facing the baghouse and the inside of the seat facing the ductwork leading into the plant.

20

could have been an “EKG”-like pattern, such that it accumulated more on one side of the duct
than the other, thus allowing the non-translucent dust to prop open the damper while
simultaneously allowing Hodges to see past it. (See McGinley Dep., Dkt. No. 107-13, at 66:1767:20; id. at 68:8-69:17). Hodges, however, clearly testified that he saw over – not to the side –
of the damper. Thus, McGinley’s creative hypothesis is not consistent with Hodges’ testimony.
Moreover, McGinley’s repeated references to the accuracy of Hodges’ description of the
ductwork’s configuration on the far side of the damper does not change the fact that Hodges
could not have seen over the top of the damper. Nor is Hodges’ description of the ductwork on
the far side of the damper, which simply continued on before making an approximately ninety
degree turn into the baghouse, particularly probative. The exterior ductwork was exposed and in
plain view outside the plant and it is no great mystery as to how it was configured past the
damper. In sum, McGinley has failed to explain how Hodges could have possibly seen over the
top of the damper as Hodges testified that he did. While NFPA 921 recognizes witness
statements as an important source of data, “[w]hen witness statements are not supported by the
investigator’s interpretation of the physical evidence, the investigator should evaluate each
separately.” NFPA 921-17.3.3.15.
Because Hodges’ testimony that he could see over the top of the damper is physically
impossible, we are left with his testimony that he saw a flash of a fireball in the ductwork. In
this regard, Hodges’ testimony is similar to that of a Mrs. Miller in the case of Bryte ex rel. Bryte
v. Am. Household, Inc., 429 F.3d 469 (4th Cir. 2005). In the Bryte case, the Fourth Circuit
upheld the exclusion of a fire cause expert where that expert eliminated a possible cause of a
deadly house fire, a candle, based on the observations of Mrs. Miller. The expert excluded the
candle because Mrs. Miller observed it still lit and upright after the outbreak of the fire. The

21

Fourth Circuit explained that the expert’s opinion was flawed not because of his “reliance on
Mrs. Miller’s observations, but because the fact that she saw the lighted candle on the table in
itself cannot exclude it as a cause of the fire . . . .” Id. at 477. The Fourth Circuit noted that the
candle nevertheless could have started the fire by setting a nearby lampshade or blanket alight,
id., and concluded that
Daubert aims to prevent expert speculation, and our review of the
record convinces us that [the proffered expert’s] failure to
independently evaluate the open flame in the room cannot be
reconciled with the reliability mandate.
[The expert] was
permitted to rely on what Mrs. Miller saw, but not on her
conclusions about the cause of the fire. As to the candle he
essentially did the latter.
Id. By accepting Hodges’ physically impossible testimony, McGinley and Schloss commit the
same error here, rubber stamping Hodges’ conclusion as to the origin of the fireball. This is not
a conclusion based on scientific methodology, it is advocacy.
(iii) Video Footage
A security camera was operating inside the plant at the time of the fire and explosion of
the baghouse. The resultant video footage does not, however, directly capture the event. It does
not depict the baghouse, the ductwork, or plaintiffs as they are vacuuming. Instead, the video
depicts a doorway into the plant some distance both from where plaintiffs were working and the
baghouse. No activity is seen on screen until there is a sudden flash of white light, followed by a
faint orange glow. In the aftermath, persons can be seen entering and exiting the building as part
of the rescue efforts following the fire and explosion. However, nothing more of the accident
can be seen. (See generally, Dkt. No. 78-29).
Neither McGinley nor Schloss provide any detailed analysis in their original expert
reports as to what is depicted in the video. McGinley’s original expert report asserts that footage

22

“clearly shows the initial flash of light and blast occurring outside the building exterior wall, not
inside.” (McGinley Report, Dkt. No. 83-2, at 5). He provides zero explanation of how he
reached this conclusion. Schloss’ original expert report is somewhat more methodologically
sound, as it at least attempts to describe how he analyzed the video footage. Schloss concludes
that the flash in the first frame of the explosion occurs on the “right side of the frame.” (Schloss
Report, Dkt. No. 83-3, at 31). The court has reviewed the video as well as the multiple
submissions by the parties with various frame-by-frame screen shots. There is nothing selfevident about either the video as a whole or the first frame of the explosion to support the
assertions made by plaintiffs’ experts. That is, it is not clearly shown in the video that the initial
flash of light and blast occurred outside, as opposed to inside, and it likewise not clear that the
flash in the first frame appears on the right side of the screen. In place of analysis, plaintiffs’
experts simply state conclusions about what the video depicts. In order to accept their claims as
to the video’s content, the court would have to rely on the “ipse dixit of the expert[s],” a rejected
practice. Gen. Elec. Co. v. Joiner, 522 U.S. 136, 146 (1997); see also Kipperman v. Onex Corp.,
411 B.R. 805, 844 (N.D. Ga. 2009) (internal quotations and alterations omitted) (“The trial
court’s gatekeeping function requires more than simply ‘taking the expert’s word for it.’ An
expert must be able to explain step by step how and why he reached his given conclusions.”).12
McGinley and Schloss have attempted to rehabilitate their reliance on the video footage,
both in their responses to deposition questions and via affidavits in response to the frame-byframe analysis provided by the defendants’ expert witness report. In their affidavits, both
plaintiffs’ experts reach the same conclusion: that the most significant event in the video – the
initial whiteout – must correspond to the most significant event that occurred at the plant that day

12

Indeed, an ipse dixit assertion does not even meet the requirements of Rule 26(a)(2). See Fed. R. Civ. P.
26(a)(2)(B)(i) (requiring that an expert report contain “the basis and reasons” for an expert’s opinions).

23

– the baghouse exploding. (McGinley Aff., Dkt. No. 107-15, at 4; Schloss Aff., Dkt. No. 10719, at 3). Thus, they posit, because the whiteout comes first in the video, the baghouse must
have exploded first. This is not science, this is argument. The simple fact is that the video is, at
best, inclusive. In and of itself, the video cannot provide the basis for an expert opinion that the
explosion and fire originated in the baghouse. In short, the video evidence cannot cure the other
deficiencies in plaintiffs’ experts’ origin opinion methodology. “[A]ny step that renders the
analysis unreliable . . . renders the expert’s testimony inadmissible.” Nucor Corp. v. Bell, C/A
206-CV-02972-DCN, 2008 WL 4442571, at *13 (D.S.C. Jan. 11, 2008) (quoting In re Paoli R.R.
Yard PCB Litig., 35 F.3d 717, 745 (3d Cir. 1994)).
(iv) Conclusion
The reliability of an expert’s opinion depends on many factors. The precise nature of the
factors relevant to the Rule 702 inquiry will vary with the both the nature of the opinion rendered
and the context in which it is offered. Here, the court must ensure that the proffered fire origin
experts display “‘the same level of intellectual rigor that characterizes the practice of an expert’
in the field of fire investigation.” Fireman's Fund Ins. Co. v. Tecumseh Products Co., 767
F. Supp. 2d 549, 556 (D. Md. 2011) (quoting Kumho Tire, 526 U.S. at 152). As set forth above,
a confluence of multiple factors – the lack of a reliably established ignition source in the
baghouse; the undisputed presence of static electricity in the ductwork; the absence of physical
testing, modeling, or calculations; and undue reliance on physically impossible elements of an
eyewitness account – serves to undercut the reliability of plaintiffs’ experts’ opinions. In
particular, McGinley and Schloss did not exercise the heighten rigor required by NFPA 92117.6.1.1 in discounting the undisputed presence of static electricity in the ductwork as the origin

24

of the fire and explosion. As such, the origin opinions offered by McGinley and Schloss are not
sufficiently reliable to be admissible under Rule 702.
III.
Plaintiffs argue that even if their experts are excluded, summary judgment is not
warranted because they have competent lay testimony upon which a jury could rely in
concluding that the fire and explosion originated in the baghouse and that their injuries resulted
from the improper venting of the baghouse and damper’s failure to prevent the fire from entering
the plant’s interior. The court cannot agree.
Under Federal Rule of Civil Procedure 56(a), the 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); Celotex Corp. v. Catrett, 477 U.S.
317, 322 (1986); Glynn v. EDO Corp., 710 F.3d 209, 213 (4th Cir. 2013). When making this
determination, the court should consider “the pleadings, depositions, answers to interrogatories,
and admissions on file, together with . . . [any] affidavits” filed by the parties. Celotex, 477 U.S.
at 322. Whether a fact is material depends on the relevant substantive law. Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 248 (1986). “Only disputes over facts that might affect the outcome
of the suit under the governing law will properly preclude the entry of summary judgment.
Factual disputes that are irrelevant or unnecessary will not be counted.” Id. (citation omitted).
The moving party bears the initial burden of demonstrating the absence of a genuine issue of
material fact. Celotex, 477 U.S. at 323. If that burden has been met, the non-moving party must
then come forward and establish the specific material facts in dispute to survive summary
judgment. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586–87 (1986).

25

In determining whether a genuine issue of material fact exists, the court views the facts
and draw all reasonable inferences in the light most favorable to the non-moving party. Glynn,
710 F.3d at 213 (citing Bonds v. Leavitt, 629 F.3d 369, 380 (4th Cir. 2011)). “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. However, the
non-moving party “must set forth specific facts that go beyond the ‘mere existence of a scintilla
of evidence.’” Glynn, 710 F.3d at 213 (quoting Anderson, 477 U.S. at 252). Instead, the nonmoving party must show that “there is sufficient evidence favoring the non[-] moving party for a
jury to return a verdict for that party.” Res. Bankshares Corp. v. St. Paul Mercury Ins. Co., 407
F.3d 631, 635 (4th Cir. 2005) (quoting Anderson, 477 U.S. at 249).
Although it is Virginia law that governs the substance of plaintiffs’ claims, “whether
there is sufficient evidence to create a jury issue of those essential substantive elements of the
action, as defined by state law, is controlled by federal rules.” See, e.g., Jones v. JC Penney
Corp., Inc., 6:12-CV-00010, 2013 WL 625720, at *3 n.4 (W.D. Va. Feb. 20, 2013) (quoting
Fitzgerald v. Manning, 679 F.2d 341, 346 (4th Cir. 1982)); Smith v. Gen. Motors Corp., 376
F. Supp. 2d 664, 676 (W.D. Va. 2005) (quoting the same passage from Fitzgerald), aff'd sub
nom. Estate of Smith v. Gen. Motors Corp., 179 F. App'x 890 (4th Cir. 2006).
In order to prove their products liability claims, plaintiffs must show that their injuries are
related to a failure of the baghouse to properly vent the explosion or the damper to contain it. As
such, they readily concede that if they fail to prove that the fire originated on the far side of the
damper, they have no actionable products liability claim. Plaintiffs point to four pieces of
evidence which they say, even in absence of expert testimony, create a colorable issue of fact for
a jury: (1) the testimony of Hodges; (2) the testimony of another plaintiff, John Paul Spangler,

26

(3) the video footage from the security camera, and (4) the lack of deformity in the ductwork
post-ignition. Reviewing not only this evidence, but the record as a whole, the court finds that,
viewing the evidence in the light most favorable to the plaintiffs, no reasonable jury could find in
their favor as to their products liability claims.
First, as previously discussed, Hodges’ testimony that he saw over the top of the damper
is impossible. There is no dispute of fact as to the configuration of the damper, which was
hinged at the top. Hodges was clearly mistaken when testifying he saw over the top of it.
Hodges’ physically impossible testimony does not create an issue of fact for the jury. It is proper
to discount a plaintiff’s testimony for purposes of summary judgment when “it is blatantly
contradicted by the record, blatantly inconsistent, or incredible as a matter of law, meaning that it
relates to facts that could not have possibly been observed or events that are contrary to the laws
of nature.” Feliciano v. City of Miami Beach, 707 F.3d 1244, 1253 (11th Cir. 2013) (collecting
authorities). Here, Hodges’ testimony that he saw over the top of the damper “could not have
possibly been observed” due to the damper’s configuration. As such, Hodges’ testimony does
not provide any basis for a jury to do anything but speculate that the ignition originated in the
baghouse and that the baghouse and damper subsequently failed to protect him. In short, it
provides no support to plaintiffs’ argument that a defect in the baghouse or damper caused their
injuries.
As to Spangler’s testimony, plaintiffs contend that his observations regarding the event
provide further lay evidence of ignition in the baghouse. Specifically, plaintiffs point to
Spangler’s comments indicating that, when the explosion occurred, he was about to open a door
leading to the plant’s exterior when he observed a bright light “from the front.” Spangler’s exact
deposition testimony on this point is as follows:

27

A: . . . So when I turned around is when the explosion occurred. I
was walking toward the door, almost at the door.
Q: And you heard two explosions; is that correct?
A: I heard one explosion. Well the first one – it all happened so
fast – it was the bright white light just came at me from the front
and blasted me pretty good and I don’t know if I lost consciousness
or not, but the next thing I remember is just vaguely looking
around and everything was going in really slow motion.
(Spangler Dep., Dkt. No. 107-10, at 40:22-41:10). Spangler reiterated his orientation later in his
deposition.
Q: When that first bright light came, you said you come back in,
you were facing towards where Mr. Hodges –
A: No, sir; I was facing the door getting ready to go out the door.
It was propped by the six-inch aluminum hose that we used to
vacuum was coming through the bottom of the door.
(Id. at 42:15-22). Spangler’s testimony does not remedy the fatal failure of proof in plaintiffs’
case. To be sure, Spangler describes a flash of white light and disorienting explosion. But what
his testimony does not do is provide the source for the ignition of the fire and explosion. There
is no dispute in this case that plaintiffs were burned inside the plant by fire emanating from the
ductwork they were vacuuming and that the outside baghouse exploded. Spangler’s testimony
does nothing to assist the jury in deciding whether the claimed defects in the baghouse and
damper played any role in the injuries he and his co-workers sustained. In that regard,
Spangler’s testimony is just as inconclusive as the video footage and provides no clue as to how
and where the fire and explosion began and, critically, whether the claimed defects of the damper
and baghouse caused plaintiffs’ injuries.13

13

Spangler also testified that the burns he received from the accident primarily “hit [him] in the face and went
back,” although he received additional burns on the back of his head from falling debris; he could not, however,
recall being hit by a blast of air from any particular direction. (See Spangler Dep., Dkt. No. 107-10, at 95:24-96:14).
Moreover, he first noticed that he was on fire – his hair burning – when he saw Danny Collins (a non-plaintiff

28

As to the video, the court has already noted that the assertions made by plaintiffs’
proffered experts that it “clearly” shows the explosion first occurring outside the plant to be
without basis. The video does not show the baghouse, the ductwork, or the plaintiffs. In sum, it
does not directly depict the events in question. As with Spangler’s testimony, there is simply no
way for a jury to reach any conclusion as to the ignition of the fire and explosion from watching
the video except by conjecture, guess, or random judgment.
Finally, plaintiffs asserted at oral argument that the jurors themselves can look at the
ductwork and see for themselves that the fire did not begin there. As noted previously,
McGinley did not provide a sufficiently reliable foundation for his opinion that ignition of the
aluminum dust in the ductwork would have resulted in its physical deformation. To allow the
jury to reach this conclusion invites utter speculation.
In light of the foregoing, it is clear that, without reliable expert testimony, plaintiffs
cannot produce sufficient evidence upon which a jury could conclude that the ignition of the
aluminum dust took place in the baghouse and that the damper and an insufficiently vented
baghouse failed to protect the plaintiffs. At most, plaintiffs’ evidence, taken together and viewed
in the light most favorable to them, leaves the jury completely at sea as to cause and origin of the
fire and explosion in this case. As was true in Logan v. Montgomery Ward & Co., Inc., 216 Va.
425, 429, 219 S.E.2d 685, 688 (1975), the “evidence in the instant case fails to eliminate the
possibility that the blame attaches to some party other than [the defendants]. Neither is the proof
such that the existence of a defect in the [baghouse and/or damper] is the only reasonable
inference that can be drawn to explain the explosion.” In short, this is “the case of an

employee of LCM Corp.) running towards the scissor lift upon which Hodges and Bonds were standing to vacuum.
(Id. at 41:11-14). In sum, Spangler did not give any testimony indicating that he caught fire from an explosion
originating outside as opposed to inside the plant. Thus, this testimony likewise does not provide any basis for
concluding the fire originated in the baghouse versus the ductwork, or the interior of the plant versus the exterior.

29

unexplained accident which may have been attributable to one of several causes, for some of
which the defendant[s are] not responsible.” Id. For more than a century, it has been well
established in Virginia14 that:
Where damages are claimed for injures which may have resulted
from one of two causes, for one of which the defendant is
responsible and the other of which it is not responsible, the
plaintiff must fail if his evidence does not show that the damage
was produced by the former cause. And he must also fail if it is
just as probable that the damages were caused by the one as by the
other, since the plaintiff is bound to make out his case by the
preponderance of the evidence.
Norfolk & W. Ry. Co. v. Poole’s Adm’r, 100 Va. 148, 40 S.E. 627, 629 (1902). There is in this
case simply no proof of a defect in the baghouse or damper that caused plaintiff’s injuries
beyond the realm of “conjecture, guess, or random judgment upon mere supposition.”
Chesapeake & O. Ry. Co. v. Whitlow, 104 Va. 90, 51 S.E. 182, 184 (1905). As such, the court is
required to grant summary judgment on the products liability claims.
IV.
Having determined that there is insufficient evidence giving rise to a genuine issue of
material fact as to the origin of the fire and explosion, and thus no evidence that a product defect
caused or contributed to plaintiffs’ injuries, the court must address one further issue. Plaintiffs
acknowledge that summary judgment is appropriate for Carrington, Dustex, and Kirk & Blum if
there is no jury issue as to origination. The same is true for the products liability claim against
Federal-Mogul. However, plaintiffs contend that their negligence claim against Federal-Mogul

14

As previous noted, in diversity cases “whether there is sufficient evidence to create a jury issue of th[e] essential
substantive elements of [an] action, as defined by state law, is controlled by federal rules.” Fitzgerald v. Manning,
679 F.2d 341, 346 (4th Cir. 1982). However, it is well established that the burden of proof is substantive and
therefore controlled by state law. See Shady Grove Orthopedic Associates, P.A. v. Allstate Ins. Co., 559 U.S. 393,
454 n.12 (2010) (so noting).

30

remains actionable as Federal-Mogul was aware of the explosive properties of aluminum dust
and negligently failed to protect plaintiffs from those dangers.
Specifically, plaintiffs point to a dust explosion hazard assessment performed by
Chilworth Technology in April 2010 following an explosion in a Federal-Mogul facility in Italy.
Chilworth’s assessment culminated in a report that included twelve suggestions and
recommendations. (See Chilworth Dust Explosion Hazard Assessment, Dkt. No. 107-1, at 51011). Plaintiffs contend that Federal-Mogul did not implement many of these recommendations
prior to the explosion. However, even assuming the failure to implement all Chilworth
recommendations was negligent, “[n]egligence and an accident . . . do not make a case. As
between them there must be causal connection.” Hawkins v. Beecham, 168 Va. 553, 561, 191
S.E. 640, 643 (1937). Here, the suggestions and recommendations made by Chilworth as to the
design of the baghouse or damper are not relevant, as plaintiffs cannot establish a triable issue of
fact as to the origin of the fire and explosion. Plaintiffs nevertheless maintain that FederalMogul was negligent in failing to follow certain Chilworth recommendations, regardless of the
ignition source of the conflagration. Specifically, plaintiffs assert that Federal-Mogul was
negligent in its maintenance of the dust collection system, in particular by failing to empty the
baghouse before plaintiffs performed their maintenance operation on the dust collection system.
(Pls.’ Mem. in Opp’n to Federal-Mogul’s Mot. for Summ. J., Dkt. No. 104, at 22). The court
disagrees.
It is well-settled that a federal court sitting in diversity looks to state law so that
“litigation of state-based rights in federal court does not yield results materially different from
those attained in the state courts.” Johnson v. Hugo’s Skateway, 974 F.2d 1408, 1416 (4th Cir.

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1992) (citing Erie R.R. Co. v. Tompkins, 304 U.S. 64, 68 (1938)). Thus, Virginia law governs
the substance of plaintiffs’ negligence claims.
To establish a claim for negligence under Virginia law, the
plaintiff must satisfy three elements: (1) “the identification of a
legal duty of the defendant to the plaintiff;” (2) “a breach of that
duty;” and (3) “injury to the plaintiff proximately caused by the
breach.” Talley v. Danek Med., Inc., 179 F.3d 154, 157 (4th
Cir.1999). “Under Virginia law, ‘[t]he standard of conduct to
which a party must conform to avoid being negligent is that of a
reasonable man under like circumstances.” Id. at 157–58 (quoting
Moore v. Va. Transit Co., 50 S.E.2d 268, 271 (Va. 1948) (citation
and internal quotation marks omitted)). Furthermore, “[d]uty is
not an abstract concept but is always tied to a particular individual
or class of persons to which an individual belongs. In determining
whether a duty exists, the Court considers factors including
foreseeability of harm, the likelihood of injury, the magnitude of
the burden of guarding against that injury, and the consequences of
placing such a burden on the defendant.” Jappell v. Am. Ass'n of
Blood Banks, 162 F.Supp.2d 476, 480 (E.D.Va.2001) (internal
citations omitted).
Holland v. Chase Home Fin., LLC, 2:11CV223, 2011 WL 4025220, at *5 (E.D. Va. Sept. 9,
2011) (alterations in original). The seventh of the Chilworth suggestions and recommendations
states that “[b]efore repairs or maintenance activities are conducted on dry-dust collectors, empty
the collector and thoroughly remove accumulations.” (Chilworth Dust Explosion Hazard
Assessment, Dkt. No. 107-1, at 510). Plaintiffs ask that Federal-Mogul be held liable for
negligence for not removing the aluminum dust from the baghouse before plaintiffs began their
dust removal work. Yet the entire purpose of hiring the plaintiffs was to clean out the dangerous
dust that had built up in the dust removal system. Federal-Mogul sought out experts in
hazardous waste removal. LCM, a hazardous waste contractor, was hired to do the work, and it
is undisputed that plaintiffs, employees of LCM, were trained and certified in hazardous waste
removal.

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The court finds as a matter of law Federal-Mogul acted reasonably in doing so. Indeed, it
difficult to hypothesize a more reasonable response to the buildup of explosive aluminum dust
than to hire hazardous waste removal experts to remove it.15 The court thus rejects the catch-22
logic that Federal-Mogul acted unreasonably by failing to empty the dust collection system
before hiring plaintiffs to empty the dust collection system. Federal-Mogul could not have
reasonably foreseen that trained and certified experts would have used an ungrounded vacuum
with a PVC pipe attachment that generated static electricity to vacuum highly combustible
aluminum dust. In order for Federal-Mogul to guard against this sort of accident, it would itself
have to become an expert in hazardous waste removal, thus defeating the entire purpose of hiring
third-party experts. This is not a case where Federal-Mogul created a ticking-time bomb and
innocent bystanders simply had the misfortune of being in the wrong place at the wrong time.
Plaintiffs were at the plant on the day of fire and explosion to remedy the potential for the very
accident that occurred. Federal-Mogul cannot be liable for placing them in such a position.
Plaintiffs assert that they were unaware that they were vacuuming combustible aluminum
dust, and therefore unaware of the risk of using an ungrounded vacuum. But the burden is
clearly not the party hiring the hazardous waste removal experts to inform those experts how to
do their jobs. Federal-Mogul was reasonable in assuming LCM and the plaintiffs, as hazardous
waste removal experts, would determine both the substance they were dealing with and the
proper method for removing it. Placing the burden on Federal-Mogul on either of those issues
would defeat the purpose of hiring a third party expert.
15

Plaintiffs reliance on Jones v. Meat Packers Equip. Co., 723 F.2d 370 (4th Cir. 1983), is therefore misplaced.
First, Jones is a contributory negligence case. The court does not need to reach the question of contributory
negligence to conclude that Federal-Mogul acted reasonably and was therefore was not negligent in its own actions.
Second, the facts of Jones are clearly distinguishable. The plaintiff in Jones was engaged in routine cleaning of a
machine when it started and injured her; she brought suit against the manufacturer of the machine. Id. at 371.
Plaintiffs here have brought suit against a third-party that hired their employer, LCM, for the express purpose of
remedying a potentially dangerous situation.

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V.
The opinions offered by plaintiffs’ experts lack a reliable foundation and are therefore
inadmissible under Rule 702. In the absence of expert testimony, there is no genuine issue of
material fact. Summary judgment for the defendants is therefore appropriate.
The clerk is directed to send a certified copy of this Memorandum Opinion to all counsel
of record. An appropriate Order will be entered this day.
Entered: March 7, 2014

/s/ Michael F. Urbanski
Michael F. Urbanski
United States District Judge

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