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Richardson International (US) Limited v. Buhler, Inc.

United States District Court, D. Nebraska

March 28, 2017

BUHLER INC, Defendant.


          Joseph F. Bataillon Senior United States District Judge

         This matter is before the court on defendant Buhler's motion in limine to exclude certain testimony of the plaintiffs' experts Kenneth R. Scurto ("Scurto"), James E. Maness ("Maness"), and Dr. Thomas Schnell ("Dr. Schnell"), Filing No. 80. Buhler seeks exclusion of the testimony under Daubert v. Merrell Dow Pharms., 509 U.S. 579, 589(1993).

         I. BACKGROUND

         The experts' reports have been filed. Filing No. 83-4, Ex. D, Scurto Report ("Rep't"); Filing No. 83-8, Ex. H, Maness Rep't; Filing No. 83-11, Ex. K, Schnell Rep't. Also, all of the experts were deposed. Filing No. 85-3, Ex. 3, Scurto Deposition ("Dep."); Filing No. 85-7, Schnell Dep.; Filing No. 85-11, Maness Dep.

         The record shows plaintiffs' expert Kenneth Scurto is a fire investigator with over 36 years of experience in fire investigations. He has had training in all aspects of fire suppression. He was Deputy Inspector with the Nebraska State Fire Marshal's Office from 1985 to 2002. He was a Fire Investigator with Leuwerke and Associates for four years and has worked at Independent Forensic Investigations Corporation for more than ten years. He is certified as a Fire and Explosion Investigator by the National Association of Fire Investigators, and he has held that certification for eleven years. He is also a member of National Association of Fire Investigators, International Association of Arson Investigators, Nebraska Chapter of the International Association of Arson Investigators, Nebraska Society of Fire Service Instructors, and the Nebraska State Volunteer Firefighters Association. He has investigated almost 1800 fires and explosions and has testified in numerous cases.

         He was retained to conduct a fire investigation of the June 3, 2013 fire at the Richardson facility in South Sioux City, Nebraska. He performed a half-day physical inspection, interviewed several witnesses, and reviewed system data. The system data could not be printed, but Scurto viewed the data and took notes on it.

         The defendant was provided an opportunity to conduct an investigation into the fire and to freely inspect the facility and equipment involved in the fire and was notified that cleanup, remediation, and repairs would commence after that. The plaintiffs have shown that Fire Investigator Kenneth Ward and Mechanical Engineer Duane Wolf investigated on behalf of the defendant on June 8, 2013, and June 10, 2013. Filing No. 85-2, Ex. 21, Rick Martin Dep. at 89-96. Both Ward and Wolf were disclosed in initial disclosures, but neither has been designated as an expert witness in the case.

         The record shows the control system data was only kept on the server for 90 days after the fire and was then purged under the standard protocol of the server. Filing No. 85-20, Ex. 20, J. Olson Dep. at 61, 72-73. The plaintiffs and its expert were not aware that the server did not permit printouts or reports of material, just stored raw data. Id. at 65-66. Buhler's expert, Rick Martin acknowledged that there is no evidence of intentional spoliation of the system data. Filing No. 85-21, Ex. 21, Martin Dep. at 65. He testified he was able to form a cause and origin opinion without viewing any of the control data information.

         Scurto's cause and origin opinions are based on application of the techniques set forth in the National Fire and Protection Association document 921, Guide for Fire and Explosion Investigations and the National Fire and Protection Association ("NFPA") Document 1033, Standard for Professional Qualifications for Fire Investigator. He also based his opinion on his observations of burn patterns and heat damage, witness interviews, Richardson employee deposition transcripts, company documents including coated product pre-op checklist, records on ovens, 1078 multigrain granola batch details, oven product history, the Aeroglide Safety Procedures page from the owner's manual, the Buhler service contract, and hand-written statements of Richardson employees as well as his education, training and experience.

         James Maness has a B.S. in Mechanical Engineering from the University of Maryland. From 1967 through 1974, Maness was a Research Engineer with the National Bureau of Standards, Consumer Product Safety Research and High Temperature Measurements group, publishing technical papers on research dealing with issues including fire-related consumer product safety. He worked as the Director of Technical Services for the National Grain & Feed Association from 1974 to 1984. In that capacity he was responsible for safety and health programs, grain grades and weights issues, environmental quality concerns, research, energy conservation and various engineering and technical programs. He is presently an independent safety consultant. He offered opinions on industry standards and engineering practices, including NFPA and Factory Mutual ("FM"). He identified contributing factors that influenced the event and how it could have been prevented. He further opined on Buhler's failure to follow recognized standards, guidelines and regulations pertaining to the operation of the dryer and the responsibility of Buhler to provide a safe design. Also, he offered an opinion on Richardson's operational practices as far as housekeeping practices to minimize the risk of fires and explosions. He relied on the information provided by counsel, including Scurto's report, depositions, deposition exhibits, documents produced in discovery, witnesses' statements and comments, the fire marshal report, NFPA 61-Standards for the Prevention of Fires and Explosions in Agricultural and Food Processing Facilities (2002), NFPA 86-Standards for Ovens and Furnaces (2007), FM Global Property Loss Prevention Data Sheets 6-9 for Industrial Ovens and Dryers, and appropriate portions of Occupational Safety and Health Administration's ("OSHA") General Industry Standards, 29 C.F.R. 1910.

         Thomas Schnell has a Ph. D. in industrial design. He has been employed as a professor at the University of Iowa for eighteen years. Dr. Schnell teaches and conducts research in the area of Safety Engineering and Human Factors. He has taught such subjects as Industrial Engineering Design, Operational Systems, Human Factors, Quality Engineering, Ergonomic Design, Quality Control, and Human Performance in Engineered Systems. He was asked to give an opinion on a design defect and adequacy of warnings and instructions from a safety engineering and human factors perspective. After the defendant belatedly produced a hazard analysis, Dr. Schnell reviewed and evaluated it.

         Buhler challenges all of Scurto's opinion testimony as relying on allegedly spoliated evidence, contending that Scurto's opinions are inextricably intertwined with critical, missing data. It argues that Richardson should not be allowed to advance causation theories that depend upon data that they failed to preserve. Alternatively, it asks the court to exclude the portions of Scurto's report that rely extensively on the spoliated control systems data. Also, it argues that Scurto should be precluded from testifying at trial in a manner inconsistent with admissions he made at his deposition.

         Buhler challenges Maness's opinions 1 (adequacy of warnings and instructions) and 4 (adequacy of housekeeping and cleaning) as lacking evidentiary support and based on missing data. It argues that Maness did not offer independent opinions on the subject of the origin and cause of the fire, but relied on the cause and origin opinions of Scurto and the Fire Marshal. It contends Maness's opinions are not supported by Scurto's or the Fire Marshal's opinions. Buhler also challenges Maness's supplemental report (regarding NFPA 86 (1999 edition) standards) as untimely.

         With respect to Dr. Schnell's testimony, Buhler asserts his opinions 1 (defective design), 3 (warnings system), and 4 (adequacy of hazard analysis) are outside Dr. Schnell's area of expertise and are also improper rebuttal evidence and should be excluded. Buhler contends that the deadline for disclosure of the plaintiffs' expert witness reports was September 9, 2016.[1] On that date, plaintiffs' counsel sent defense counsel an email notifying him that Richardson's warnings/human factors expert, Tom Schnell, was out of the country working on a Department of Defense contract and that a report would not be ready until Dr. Schnell returned three weeks later. Filing No. 91-1, Ex. L, Hartnett Affidavit ("Aff."), Ex. L1, Hartnett-Hicks Email. Buhler's counsel, as a matter of professional courtesy, offered to extend the deadline for disclosure of the report by one week, but not longer. Id. The plaintiffs contend that Buhler withheld documents critical to Dr. Schnell's opinions, namely, its "hazard analysis, " until after the plaintiffs' expert report deadline. The hazard analysis was produced on October 20, 2016, at the deposition of ...

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