Opinion
No. A3-98-137
July 17, 2000
MEMORANDUM AND ORDER
I. INTRODUCTION
Before the court are several motions in limine and summary judgment motions filed by defendant Farmers Union Cooperative of LaMoure (Farmers Union) and defendant Vining Oil Gas Company (Vining). The motions in limine seek to exclude certain evidence and expert testimony from trial and consideration at the summary judgment stage. The motions came on for hearing on June 27, 2000. At the conclusion of the arguments, the court denied all but one motion in limine and denied the motions for summary judgment. This written order follows.
A decision on Farmers motion in limine regarding evidence of installation, (doc. #66), has been deferred. While the court is inclined to allow testimony of Farmers installation of the pipe in question, the court is concerned with how to procedurally handle the matter since all parties agree that Farmers cannot be held liable for the installation based on North Dakota's statute of repose. The parties are reminded that the court directed additional briefing on this matter, such briefs are due by July 27, 2000.
II. BACKGROUND
Plaintiff, Lilian Maria Dickie, was severely burned when a fire broke out on the farm of her employer, Peter Shockman, on August 5, 1998. The cause of the fire was attributed to a leak in an underground pipe which connected two underground propane tanks with a grain dryer. The underground pipe had been sold and installed by Farmers Union in October of 1975. Over the years, Farmers Union delivered propane gas to the Shockman system; the last such delivery occurred in 1995. Vining also supplied Shockman with propane gas and on July 2, 1998, Vining delivered roughly 1600 gallons of propane gas to the Shockman farm without noticing any leak in the system. Neither Farmers Union nor Vining had ever warned Shockman of the hazards of propane or the risk of pipe corrosion.
Plaintiff, who has settled her negligence claim against Shockman, brings suit against Farmers Union and Vining claiming that Farmers Union is liable for supplying a defective pipe, that Vining is liable for not detecting the leak in the pipe, and that both are liable for not warning about the hazards of propane and/or the risk of pipe corrosion and failing to inspect the pipe.
II. MOTIONS IN LIMINE
Both Vining and Farmers Union have brought motions in limine seeking to exclude portions of expert testimony from trial and consideration on the pending summary judgment motions. Neither Vining nor Farmers Union challenges the qualifications of the proffered experts, thus, this court must resolve the concerns of the reliability and relevancy of the proffered testimony. See Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993).
Pursuant to Rule 702 of the Federal Rules of Evidence, a qualified expert may testify "if scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue." Fed.R.Evid. 702. Under Daubert and its progeny, the Supreme Court has directed the trial court to serve as a gatekeeper overseeing that any proffered expert testimony is both relevant (will it assist the jury?) and reliable (is it scientific or technical knowledge rather than subjective belief or unsupported speculation?). See Daubert, 509 U.S. at 590-91. See also Kumho Tire Company, Ltd. v. Carmichael, 526 U.S. 137, 141-42 (1999); General Electric Co. v. Joiner, 522 U.S. 136, 142 (1997). A preliminary assessment must be made of whether the reasoning or methodology underlying the testimony is valid and whether that reasoning or methodology properly can be applied to the facts in issue. Daubert, 509 U.S. at 592-93.
The inquiry in determining the reliability and relevance of the testimony is flexible. Id. at 594. The focus of the inquiry is on the principles and methodology not on the conclusions; however, the conclusions must be examined to determine whether they could reasonably flow from the facts known to the expert and the methodology employed. Joiner, 522 U.S. at 146. Generally, where relevant, the trial court may want to consider whether the scientific or technical knowledge can be or has been tested, whether the knowledge has been subject to peer review, publication or otherwise submitted to the scientific community, what the rate of error is and whether there are controlling standards, and whether there is general acceptance in the scientific community.See, e.g., Jarequi v. Carter Mfg. Co., Inc., 173 F.3d 1076, 1082 (8th Cir. 1999). Of course, the court would also want to be sure that there is a reasonable factual basis for the testimony. See Weisgram v. Marley Co., 169 F.3d 514, 519-20 (8th Cir. 1999).
This list of factors is not a definitive checklist. Kumho Tire, 526 U.S. at 151. In fact, as explained in Kumho Tire, these considerations may or may not be applicable in every individual case. Id. This may be particularly true in experience-based testimony. Still, the court must subject the testimony to some type of review for "fit" employing as many Daubert factors as are helpful. See id. at 152. In this regard, the trial court is given broad latitude to decide how to determine reliability. Id. This case has reached the point of summary judgment and Daubert has a role to play at this stage. See Cortes-Irizarry v. Corporacion Insular, 111 F.3d 184, 188 (1st Cir. 1997) (explaining that if the proffered testimony fails to pass the threshold for admissibility, a district court may exclude the evidence from consideration when passing on motions for summary judgment). However,
[t]he fact that Daubert can be used in connection with summary judgment motions does not mean that it should be used profligately. A trial setting normally will provide the best operating environment for the triage which Daubert demands. Voir dire is an extremely helpful device in evaluating proffered expert testimony, and this device is not readily available in the course of summary judgment proceedings. Moreover, given the complex factual inquiry required by Daubert, courts will be hard-pressed in all but the most clearcut cases to gauge the reliability of expert proof on a truncated record. Because the summary judgment process does not conform well to the discipline that Daubert imposes, the Daubert regime should be employed with great care and circumspection at the summary judgment stage.Id. (citations omitted). On the truncated record before the court, it cannot clearly be determined that the proffered expert testimony is unreliable and irrelevant.
Vining objects that certain portions of the testimony of plaintiffs' expert, Dr. Loper, are speculation. Plaintiffs proposes to have Dr. Loper testify regarding the leak which was found in the pipe excavated after the accident. Dr. Loper is a highly qualified metallurgist who examined the pipe in issue and measured the size of the pinhole which was present. From the size of the pinhole, Dr. Loper, using a normal rate of corrosion, was able to extrapolate a range of time it would take for such a hole to form in this specific type of pipe. Rates of corrosion and general metallurgical principles, such as the properties and characteristics of steel, are areas outside the knowledge of the normal juror. Thus, Dr. Loper's testimony is helpful to a jury in determining a fact in issue, i.e., when the leak in the pipe occurred. See Fed.R.Evid. 702.
Vining argues that Dr. Loper's opinion is speculation since he is only able to give a range of months rather than a specific date for the pinhole formation. The court disagrees. Daubert recognizes that there are, arguably, no certainties in science. See 509 U.S. at 590. In this court's view, the fact that Dr. Loper is only able to provide a range of time for the formation of the pinhole goes to the weight of his opinion and not to its admissibility. Dr. Loper's opinion on the age of the leak is reliable not speculation. His opinion is based on extensive scientific/technical knowledge in metallurgical engineering. General rates of corrosion and the properties and characteristics of steel pipe are undoubtedly known to such engineers. See Redman v. John D. Brush Co., 111 F.3d 1174, 1179 (4th Cir. 1997). It is not unreasonable nor unreliable for an expert to use this specialized knowledge to extrapolate the length of time it would take a pinhole to form based on its size. Dr. Loper indicates that such an approach is generally accepted in the metallurgical engineering community and would be used by other metallurgical engineers faced with the same circumstances. That other metallurgical engineers might come up with a different result is a basis for cross-examination, not exclusion. Vining's motion in limine regarding Dr. Loper's testimony is DENIED.
Next, Vining, along with Farmers Union, challenges the proposed testimony of Dr. Hall, a mechanical engineer, plaintiffs' expert on the characteristics and properties of propane and the standards, codes, and regulations concerning propane delivery. Defendants basically argue that Dr. Hall's proposed testimony, concerning the standards and codes of propane suppliers, will usurp the role of judge and jury by allowing him to testify to the law. While it is well settled that the law is not the proper subject of expert testimony, defendants' arguments are simply red herrings.
Dr. Hall will not be testifying as to the law but to the National Fire Protection Association (NFPA) standards and other codes applicable within the propane industry. Dr. Hall has first hand knowledge of these standards and codes. It is generally held that expert testimony is properly admitted to establish the standards of a relevant industry. See Ray v. Wal-Mart Stores, Inc., 120 F.3d 882, 884-85 (8th Cir. 1997) (holding that expert opinion testimony that Wal-Mart's inspection program was inadequate, and inferior to industry standards was properly admitted); TCBY Systems, Inc. v. RSP Co., Inc., 33 F.3d 925 (8th Cir. 1994) (expert testimony that store did not meet minimum custom and practice observed by franchisers in the industry was admissible as it helped jury to understand what was reasonable in that industry); Miller v. Yazoo Manuf. Co., 26 F.3d 81, 83 (8th Cir. 1994) (expert testifying to ANSI standards); St. Joe Mineral Corp. v. OSHA, 647 F.2d 840, 845 n. 8 (8th Cir. 1981). Since the NFPA standards and other codes, with which the jury will likely be unfamiliar, will be evidence in this case, Dr. Hall's testimony will help the jury understand those standards and help them to determine whether the defendants met their standard of care under the law. Thus, the court sees no problem in allowing such testimony.
The defendants also object to two other lines of Dr. Hall's testimony: corrosion protection and warnings. Some of the important issues in this case involve the corrosion protection of piping and exactly what constitutes such protection. Dr. Hall has helpful specialized knowledge regarding the meaning of "corrosion protection" within the industry. When terms have a specialized or technical meaning within a particular industry it is helpful and appropriate to have an expert explain those terms to the jury.Nucor Corp. v. Nebraska Public Power Dist., 891 F.2d 1343, 1350 (8th Cir. 1989) (recognizing the value of expert testimony to define terms of a technical nature and to explain whether such terms have acquired a well-recognized meaning in the business or industry). Therefore, this testimony will not be excluded.
The court is more concerned, however, with Dr. Hall's proposed testimony regarding warnings. Defendants correctly note that Dr. Hall is not an expert in writing warnings and has never designed one. The Eighth Circuit has recently addressed the concern of expert testimony on the adequacy of warnings. See Jaurequi, 173 F.3d at 1084; Robertson v. Norton Co., 148 F.3d 905, 907 (8th Cir. 1998). In doing so the circuit has instructed that the quality of a particular warning is an issue of language, impression, syntax, display, and emphasis — issues generally outside the expertise of pathologists, entomologists, and mechanical engineers. See Robertson, 148 at 907. Notwithstanding these concerns, the court notes that Dr. Hall's proposed testimony regards the need for a warning and not the adequacy of a warning. Dr. Hall may testify as to the need for warnings in this case subject to the court's supervision. The motions in limine to exclude the testimony of Dr. Hall are DENIED.
Farmers Union also challenges the testimony of Dr. Engberg, Vining's mechanical engineer expert, who offers a conflicting opinion on the cause and age of the leak in the pipe. Farmers Union challenges Dr. Engberg for reasons similar, if not identical, to the challenges to Dr. Loper and Dr. Hall. Consequently, the court rejects the challenge for similar reasons. The motion in limine is DENIED.
Turning to the last motion in limine, Farmers Union seeks to exclude evidence on the need for warnings in this case. Plaintiffs have been allowed to amend their complaint to more specifically allege a failure to warn claim. Therefore, Farmers Union's concern is moot. The motion in limine to exclude this evidence is DENIED.
In sum, the motions in limine brought by Vining and Farmers Union are denied and such evidence will be considered for purposes of the summary judgment motions. As instructed at the hearing, these motions may be renewed during trial when the facts have been more fully developed.
III. SUMMARY JUDGMENT MOTIONS
Summary judgment is only appropriate where there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c). When, however, the evidence would support conflicting conclusions or conflicting inferences can be drawn from the facts, summary judgment is inappropriate. See Kells v. Sinclair Buick-GMC Truck, Inc., 210 F.3d 827, 830 (8th Cir. 2000); Ozark Interiors, Inc. v. Local 978 Carpenters, 957 F.2d 566, 569 (8th Cir. 1992). Ordinarily, questions of negligence and proximate cause are questions of fact for the jury to determine. Johnson v. Anderson, 555 N.W.2d 588, 592 (N.D. 1996).
Viewing the facts in the light most favorable to plaintiffs, the non-moving party, see Quick v. Donaldson Co., Inc., 90 F.3d 1372, 1377 (8th Cir. 1996), it is apparent that material questions of fact abound. As to Vining, plaintiffs raise genuine issues of material fact concerning whether the leak in the pipe existed at the time of the July 1998 gas fill and whether Vining's delivery person should have detected it. It is undisputed that the delivery person did not detect the leak but this does not ipso facto relieve Vining from potential liability. According to plaintiffs' proffered expert a proper pressure check of the system would have revealed the leak that arguably existed on the date of the fill. A dispute remains whether the delivery person did such a check; thus, this is a matter for the jury. Consequently, Vining's motion for summary judgment is DENIED.
Likewise, material issues of fact remain in plaintiffs' case against Farmers Union. For example, plaintiffs claim that Farmers Union, knowing the intended use of the pipe, supplied a defective product for use in the underground propane transmission system. Under North Dakota law sellers and suppliers may be liable if the product sold is defective and unreasonably dangerous and proximately causes harm. See N.D. Cent. Code § 28-01.3-06; Reagan v. Hi-Speed Checkweigher Co., 30 F.3d 947, 948-49 (8th Cir. 1994). Plaintiffs allege that the pipe was defective since it lacked corrosion protection. Questions of fact exist as to whether the soil conditions required such protection and whether the pipe itself was corrosion protected. Consequently, summary judgment on this claim would be inappropriate.
In sum, the court finds that material issues of fact exist regarding what the defendants knew or should have known and whether they acted reasonably under the circumstances; thus, the summary judgment motions are DENIED in all respects.
IV. CONCLUSION
As provided above, the following motions are DENIED:
1. Vining's motion in limine to exclude portions of expert testimony, (doc. #54);
2. Farmers Union's motion in limine regarding warnings testimony, (doc. #68);
3. Farmers Union's motion in limine to exclude portions of Dr. Hall's testimony, (doc. #71);
4. Farmers Union's motion in limine to exclude portions of Dr. Engberg's testimony, (doc. #74);
5. Vining's motion for summary judgment, (doc. #55);
6. Farmers Union's motion for summary judgment, (doc. #77).