United States District Court, W.D. Virginia, Roanoke Division
JEFFREY S. HODGES, et al., Plaintiffs,
FEDERAL-MOGUL CORPORATION, et al., Defendants.
MICHAEL F. URBANSKI, District Judge.
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). For the reasons stated herein, the court will grant the motions to exclude plaintiffs' experts and grant defendants' motions for summary judgment.
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 the plant, Federal-Mogul worked with defendant Carrington, a manufacturer's representative, to design and install a dust collection system. Carrington served as a liaison between Federal-Mogul 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.
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 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. 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.
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 qualified as an expert by knowledge, skill, experience, training, or education may testify in the form of an opinion or otherwise if:
(a) the expert's scientific, technical, or other specialized knowledge will help the trier of fact to understand the evidence or to determine a fact in issue;
(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.Appx. 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 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.Appx. 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).
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.
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 non-operating 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.Appx. 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 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." 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?
(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 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 interacted with the aluminum dust to cause the baghouse to explode. 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 ...