Reeves Construction Company v. Hayward Industries, Inc. et al

REPLY to Response

M.D. Ga.June 7, 2018

9069395v.1 IN THE UNITED STATES DISTRICT COURT MIDDLE DISTRICT OF GEORGIA MACON DIVISION Civil Action File Number 5:16-cv-329 REEVES CONSTRUCTION COMPANY, a Georgia corporation, Plaintiff, v. HAYWARD INDUSTRIES, INC., a New Jersey corporation, and DIACOM CORPORATION, a Delaware corporation, Defendants. ) ) ) ) ) ) ) ) ) ) ) ) DEFENDANT HAYWARD INDUSTRIES, INC.’S REPLY IN SUPPORT OF STATEMENT OF MATERIAL FACTS FOR WHICH THERE IS NO GENUINE ISSUE TO BE TRIED COMES NOW Defendant Hayward Industries, Inc., and pursuant to Fed. R. Civ. P. 56 and L.R. 56, submits this Reply in Support of Statement of Material Facts For Which There Is No Genuine Issue to be Tried (“Statement of Undisputed Material Facts”) in Support of Its Motion for Summary Judgment.1 5. Both machines were using 35% hydrochloric acid, which was a more concentrated acid than is custom in the industry. Aitken Dep., 45:1-4; 46:21-47:3; 49:6-19. Plaintiff’s Response: Denied. Plaintiff’s representative testified that the highest concentration of hydrochloric acid used at the Perry facility was 34%. Burdette Dep. 117:7- 118:25. Admitted that 34% hydrochloric acid is more concentrated than customarily used in the industry. However, it is immaterial that 34% hydrochloric acid is more concentrated than is 1 Defendant addresses only the statements that should be deemed admitted for purposes of summary judgment, and does not address (and omits) the statements that Plaintiff admitted as undisputed. Case 5:16-cv-00329-TES Document 82 Filed 06/07/18 Page 1 of 35 2 9069395v.1 customary in the industry because Hayward’s literature states that its gauge guard with Viton membrane is suitable for up to 37% concentration hydrochloric acid. Stevenson Dep. 81:12-82:6. Defendant’s Reply: Defendant objects to Plaintiff’s Response on the grounds that it does not directly refute the stated fact with a concise response supported by specific citations to evidence. Plaintiff’s Response misstates the subject of the cited deposition testimony of Dr. Stephenson. The cited deposition testimony relates to Hayward’s Chemical Resistance Guide, which states “The end user should be aware of the fact that actual service conditions will affect the chemical resistance. It should be noted in the following charts that the “A” rating does not mean or imply that material will perform within original specification. The chemical resistance table should be used for reference only.” Stevenson Dep., 81:12-82:6, Exh. 5. Because Plaintiff’s Response misstates the testimony and documents at issue, and Plaintiff has failed to cite to any evidence in its Response that directly refutes Paragraph 5, the Court may therefore consider this fact admitted and undisputed for purposes of Defendant’s Motion for Summary Judgment. Fed. R. Civ. P. 56(c)(1)-(2) and (e)(2). Defendant further objects to Plaintiff’s Response on the grounds that it does not respond to or address the material fact set forth in Paragraph 5 of Defendant’s Statement of Material Facts. The fact merely states that the concentration of acid used at the Perry facility was more concentrated than is custom in the industry. Hayward’s Chemical Resistance Guide or other documentation regarding the gauge guard is not placed in issue by Paragraph 5. *** 16. David Gales, the employee of Plaintiff responsible for operating the machine and daily inspections, did not know there was a gauge guard on this machine. Gales Dep., 26:7-10; 28:10-13; 33:17; 34:7-20. Case 5:16-cv-00329-TES Document 82 Filed 06/07/18 Page 2 of 35 3 9069395v.1 Plaintiff’s Response: Denied as stated. Admitted that David Gales was one of Plaintiff’s employees responsible for operating the machine and conducting daily inspections and that he did not know there was a gauge guard on the machine, but this is immaterial. Gales Dep. 28:17- 23. Defendant’s Reply: Defendant objects to Plaintiff’s Response on the grounds that it does not directly refute the stated fact with a concise response supported by specific citations to evidence. Plaintiff’s Response misstates the cited deposition testimony. David Gales testified that someone else would sometimes conduct the walk-through inspection of the AC terminal. Gales Dep., 28:17-28:1. The AC terminal is separate from the emulsion mill. Thus, the Court may consider the fact admitted and undisputed for purposes of Defendant’s Motion for Summary Judgment. Fed. R. Civ. P. 56(e)(2). Defendant further objects to Plaintiff’s Response on the grounds that the Response does not cite to specific citations of evidence that David Gales was only one of the employees responsible for operating the machine. Because Plaintiff’s Response does not directly refute the stated fact with specific citations to evidence, the Court may consider the fact admitted and undisputed for purposes of Defendant’s Motion for Summary Judgment. Fed. R. Civ. P. 56(e)(2). *** 18. No one knows who installed the gauge guard. Johnson Dep., 43:19-44:16; 66:15- 17; Reed Dep., 177:23-178:9; Gales Dep., 32:7-20. Plaintiff’s Response: Admitted, but immaterial. It is undisputed that the gauge guard was installed by the manufacturer, Dalworth, during the retrofit process. Johnson Dep. 47:22- 48:22; Young Dep. 56:25-57:3. Case 5:16-cv-00329-TES Document 82 Filed 06/07/18 Page 3 of 35 4 9069395v.1 Defendant’s Reply: Defendant objects to Plaintiff’s Response on the grounds that it does not directly refute the stated fact with a concise response supported by specific citations to evidence. Plaintiff’s Response misstates the cited deposition testimony. Young testified that he did not install the gauge guard, and Johnson testified that, to his knowledge, Young performed the retrofit work to replace the stainless steel piping with CPVC. None of the cited testimony indicates that the gauge guard was installed by Dalworth. Because Plaintiff’s Response does not directly refute the stated fact with specific citations to evidence, the Court may consider the fact admitted and undisputed for purposes of Defendant’s Motion for Summary Judgment. Fed. R. Civ. P. 56(e)(2). 19. After the Perry machine was placed into operation, Plaintiff performed cursory visual inspections, but did not perform any maintenance on the machine. Johnson Dep., 62:16- 24; Gales Dep., 29:23-30:8. Plaintiff’s Response: Denied. These witnesses never testified that they performed only “cursory” visual inspections. In fact, Gales testified that he performed daily inspections and that his inspections included “all” gauges and valves and checks for leaks. Gales Dep. 28:10-21, 30:9-11, 31:1-2. Further, Gales testified that no other preventative maintenance was performed because the only other required maintenance was “the mill itself needed to be rebuilt . . . every 2 to 3 million gallons, and that was it.” Gales Dep. 32:7-10, 96:11-17. Defendant’s Reply: Defendant objects to Plaintiff’s Response on the grounds that it does not directly refute the stated fact with a concise response supported by specific citations to evidence. Plaintiff’s Response misstates the cited deposition testimony. David Gales testified that he was not told that there was any preventive maintenance required other than rebuilding the mill. Gales Dep. 32:7-10, 96:11-17. It is undisputed that there was no maintenance on the Case 5:16-cv-00329-TES Document 82 Filed 06/07/18 Page 4 of 35 5 9069395v.1 machine from the time it was installed until the incident in question. Johnson Dep., 62:16-24; Gales Dep., 29:23-30:8. Because Plaintiff’s Response does not directly refute the stated fact with specific citations to evidence, the Court may consider the fact admitted and undisputed for purposes of Defendant’s Motion for Summary Judgment. Fed. R. Civ. P. 56(e)(2). 20. Plaintiff did not ask for, and Dalworth (the machine’s manufacturer) did not provide, any recommendations regarding maintenance or inspection of the machine. Aitken Dep., 41:5-42:17; Young Dep., 82:1-3; 85:5-22; 94:10-95:11; 95:22-96:2; Johnson Dep., 51:22- 52:18; 62:21-24; Gales Dep., 10:11-14; 31:10-19; 32:17-21; 89:9-22; 96:11-25; Reed Dep., 144:5-24; 166:9-167:7; Burdette Dep., 63:13-18; 65:22-25; 66:22-67:4; 69:1-8. Plaintiff’s Response: Denied. The cited testimony does not support this statement. Aitken testified that Dalworth “recommends maintenance of components that Dalworth builds.” Aitken Dep. 41:24-25. Johnson testified only that he was not “personally” involved in inspection and maintenance. Johnson Dep. 51:22-52:7. Gales testified that he was instructed that the only required maintenance was visual inspections and periodic rebuilding of the mill. Gales Dep. 29:23-30:4, 32:7-10, 96:11-17. Burdette’s testimony indicates that daily inspections were taking place. Burdette Dep. 65:22-66:7. Moreover, even if no maintenance was taking place, as implied by Defendant’s statement, it would be immaterial because both Defendant Hayward’s expert, Michael Stevenson, and its corporate representative, Jon Stone, testified that the gauge guard is not a maintainable or repairable item. Stevenson Dep. 69:23-70:13-24; Stone Dep. 168:9-169:3. Defendant’s Reply: Defendant objects to Plaintiff’s Response on the grounds that it does not directly refute the stated fact with a concise response supported by specific citations to evidence. Plaintiff’s Response misstates the cited deposition testimony. Aitken testified that Dalworth only made recommendations regarding the maintenance of components manufactured Case 5:16-cv-00329-TES Document 82 Filed 06/07/18 Page 5 of 35 6 9069395v.1 by Dalworth, and did not make any recommendations with respect to maintenance or inspection of any other components on the machine. Aitken Dep., 41:5-42:17. Young testified that he did not provide any information regarding inspection or maintenance of the machine because “they already have a maintenance program already set up” and it’s up to the customer to determine the appropriate inspection and maintenance schedule. Young Dep., 82:1-3; 85:5-22; 94:10-95:11; 95:22-96:2. Although Johnson testified that he was not personally involved in inspection and maintenance of the machine, it was his responsibility to develop a preventive maintenance schedule, but he did not do so because he lacked the requisite expertise. Johnson Dep., 51:22- 52:18; 62:21-24. Gales testified that no one at Dalworth ever told him about the usable life or work life of any component on the machine, how often any portion of the machine should be replaced, or if the acid system should be periodically replaced. Gales Dep., 10:11-14; 31:10-19; 32:17-21; 89:9- 22; 96:11-25. Reed testified that Dalworth never provided any literature from either Hayward or Diacom to Plaintiff and Dalwroth never provided any other literature regarding inspection or preventive maintenance outside of the service manuals. Reed Dep., 144:5-24; 166:9-167:7. Because Plaintiff’s Response does not directly refute the stated fact with specific citations to evidence, the Court may consider the fact admitted and undisputed for purposes of Defendant’s Motion for Summary Judgment. Fed. R. Civ. P. 56(e)(2). *** 27. The asphalt emulsion processing machine at issue was retrofitted before installation and had all of the stainless steel piping replaced with CPVC piping because an Case 5:16-cv-00329-TES Document 82 Filed 06/07/18 Page 6 of 35 7 9069395v.1 identical machine installed at a Colas subsidiary in Cheyenne, Wyoming experienced leaks and corrosion in the stainless steel piping on the acid line. Reed Dep., 102:14-103:2; 103:3-6; Young Dep., 51:12-21; 55:14-24; Gales Dep., 22:5-8; 23:2-3. Plaintiff’s Response: Admitted, but immaterial. The hazard of which Hayward failed to warn in this case is the susceptibility of the diaphragm in Hayward’s gauge guard to permeation, not the corrosive properties of hydrochloric acid. Defendant’s Reply: Defendant objects to Plaintiff’s Response on the grounds that it does not directly refute the stated fact with a concise response supported by specific citations to evidence. Thus, the Court may consider the fact admitted and undisputed for the purpose of Defendant’s Motion for Summary Judgment. See Fed. R. Civ. P. 56(e)(2). Defendant further objects to Plaintiff’s Response on the grounds that it does not respond to or address the material fact set forth in Paragraph 27 of Defendant’s Statement of Undisputed Material Facts. The fact merely states that the asphalt emulsion machines at Perry and in Cheyenne were retrofitted with CPVC due to leaks and corrosion in the stainless steel piping lines at Cheyenne. Hayward’s warnings or any alleged hazard is not placed in issue by Paragraph 27. 28. Plaintiff understood that the retrofit was necessary because there was the potential for the stainless steel to react with the acid. Johnson Dep., 41:13-18. Plaintiff’s Response: Admitted, but immaterial. The hazard of which Hayward failed to warn in this case is the susceptibility of the diaphragm in Hayward’s gauge guard to permeation, not the corrosive properties of hydrochloric acid. Defendant’s Reply: Defendant objects to Plaintiff’s Response on the grounds that it does not directly refute the stated fact with a concise response supported by specific citations to Case 5:16-cv-00329-TES Document 82 Filed 06/07/18 Page 7 of 35 8 9069395v.1 evidence. Thus, the Court may consider the fact admitted and undisputed for the purpose of Defendant’s Motion for Summary Judgment. See Fed. R. Civ. P. 56(e)(2). Defendant further objects to Plaintiff’s Response on the grounds that it does not respond to or address the material fact set forth in Paragraph 28 of Defendant’s Statement of Undisputed Material Facts. The fact merely states that Plaintiff understood that the retrofit was necessary due to the potential for corrosion of the stainless steel due to the acid. Hayward’s warnings or any alleged hazard is not placed in issue by Paragraph 28. 29. Plaintiff maintained the Material Safety Data Sheet (“MSDS”) for hydrochloric acid on site, and Jarrod Crum, Plaintiff’s Safety Director, read the MSDS for hydrochloric acid. Crum Depo., 42:13-43:12, attached as Exhibit I. Plaintiff’s Response: Admitted, but immaterial. The hazard of which Hayward failed to warn in this case is the susceptibility of the diaphragm in Hayward’s gauge guard to permeation, not the corrosive properties of hydrochloric acid. Defendant’s Reply: Defendant objects to Plaintiff’s Response on the grounds that it does not directly refute the stated fact with a concise response supported by specific citations to evidence. Thus, the Court may consider the fact admitted and undisputed for the purpose of Defendant’s Motion for Summary Judgment. See Fed. R. Civ. P. 56(e)(2). Defendant further objects to Plaintiff’s Response on the grounds that it does not respond to or address the material fact set forth in Paragraph 29 of Defendant’s Statement of Undisputed Material Facts. The fact merely states that Plaintiff maintained the MSDS for hydrochloric acid on site and that Plaintiff’s safety director had read the MSDS for hydrochloric acid. Hayward’s warnings or any alleged hazard is not placed in issue by Paragraph 29. Case 5:16-cv-00329-TES Document 82 Filed 06/07/18 Page 8 of 35 9 9069395v.1 30. The MSDS for hydrochloric acid explicitly states that the “[m]aterial is very corrosive and will attack most metals and evolve hydrogen gas. . . hydrogen gas will form upon corrosion with metal and is very flammable. Chlorine may also be released.” Plaintiff’s Document Production, Material Safety Data Sheet for Muriatic Acid,2 attached as Exhibit M. Plaintiff’s Response: Admitted, but immaterial. The hazard of which Hayward failed to warn in this case is the susceptibility of the diaphragm in Hayward’s gauge guard to permeation, not the corrosive properties of hydrochloric acid. Defendant’s Reply: Defendant objects to Plaintiff’s Response on the grounds that it does not directly refute the stated fact with a concise response supported by specific citations to evidence. Thus, the Court may consider the fact admitted and undisputed for the purpose of Defendant’s Motion for Summary Judgment. See Fed. R. Civ. P. 56(e)(2). Defendant further objects to Plaintiff’s Response on the grounds that it does not respond to or address the material fact set forth in Paragraph 30 of Defendant’s Statement of Undisputed Material Facts. The fact merely states the information contained in the MSDS for hydrochloric acid. Hayward’s warnings or any alleged hazard is not placed in issue by Paragraph 30. 31. The MSDS also contains storage instructions and reiterates that “[t]his product will attack most metals and release hydrogen gas which is explosive.” Plaintiff’s Document Production, Material Safety Data Sheet for Hydrochloric Acid, attached as Exhibit M. Plaintiff’s Response: Admitted, but immaterial. The hazard of which Hayward failed to warn in this case is the susceptibility of the diaphragm in Hayward’s gauge guard to permeation, not the corrosive properties of hydrochloric acid. 2 Muriatic Acid is the same as hydrochloric acid. Crum Dep., 42:6-12. Case 5:16-cv-00329-TES Document 82 Filed 06/07/18 Page 9 of 35 10 9069395v.1 Defendant’s Reply: Defendant objects to Plaintiff’s Response on the grounds that it does not directly refute the stated fact with a concise response supported by specific citations to evidence. Thus, the Court may consider the fact admitted and undisputed for the purpose of Defendant’s Motion for Summary Judgment. See Fed. R. Civ. P. 56(e)(2). Defendant further objects to Plaintiff’s Response on the grounds that it does not respond to or address the material fact set forth in Paragraph 31 of Defendant’s Statement of Undisputed Material Facts. The fact merely states the information contained in the MSDS for hydrochloric acid. Hayward’s warnings or any alleged hazard is not placed in issue by Paragraph 31. 32. Mr. Crum also knew that hydrochloric acid will deteriorate most products. Crum Dep., 45:14-20. Plaintiff’s Response: Admitted, but immaterial. The hazard of which Hayward failed to warn in this case is the susceptibility of the diaphragm in Hayward’s gauge guard to permeation, not the corrosive properties of hydrochloric acid. Defendant’s Reply: Defendant objects to Plaintiff’s Response on the grounds that it does not directly refute the stated fact with a concise response supported by specific citations to evidence. Thus, the Court may consider the fact admitted and undisputed for the purpose of Defendant’s Motion for Summary Judgment. See Fed. R. Civ. P. 56(e)(2). Defendant further objects to Plaintiff’s Response on the grounds that it does not respond to or address the material fact set forth in Paragraph 32 of Defendant’s Statement of Undisputed Material Facts. The fact merely states that Jarrod Crum was aware that hydrochloric acid will deteriorate most products. Hayward’s warnings or any alleged hazard is not placed in issue by Paragraph 32. Case 5:16-cv-00329-TES Document 82 Filed 06/07/18 Page 10 of 35 11 9069395v.1 33. Michael Burdette, the terminal manager for Plaintiff’s Perry facility, testified that the MSDS sheets for the hydrochloric acid were maintained onsite and that he reviewed the MSDS for hydrochloric acid “many times.” Burdette Dep., 77:10-78:15. Plaintiff’s Response: Admitted, but immaterial. The hazard of which Hayward failed to warn in this case is the susceptibility of the diaphragm in Hayward’s gauge guard to permeation, not the corrosive properties of hydrochloric acid. Defendant’s Reply: Defendant objects to Plaintiff’s Response on the grounds that it does not directly refute the stated fact with a concise response supported by specific citations to evidence. Thus, the Court may consider the fact admitted and undisputed for the purpose of Defendant’s Motion for Summary Judgment. See Fed. R. Civ. P. 56(e)(2). Defendant further objects to Plaintiff’s Response on the grounds that it does not respond to or address the material fact set forth in Paragraph 33 of Defendant’s Statement of Undisputed Material Facts. The fact merely states that Michael Burdette testified that the MSDS for hydrochloric acid was maintained onsite and that he reviewed it many times. Hayward’s warnings or any alleged hazard is not placed in issue by Paragraph 33. 34. David Gales, the individual responsible for actually operating the machine, testified that he read information online regarding hydrochloric acid, and that he had been trained on the hazards and effects of hydrochloric acid. Gales Dep., 86:21-87:11; 87:25-88:14. Plaintiff’s Response: Admitted, but immaterial. The hazard of which Hayward failed to warn in this case is the susceptibility of the diaphragm in Hayward’s gauge guard to permeation, not the corrosive properties of hydrochloric acid. Defendant’s Reply: Defendant objects to Plaintiff’s Response on the grounds that it does not directly refute the stated fact with a concise response supported by specific citations to Case 5:16-cv-00329-TES Document 82 Filed 06/07/18 Page 11 of 35 12 9069395v.1 evidence. Thus, the Court may consider the fact admitted and undisputed for the purpose of Defendant’s Motion for Summary Judgment. See Fed. R. Civ. P. 56(e)(2). Defendant further objects to Plaintiff’s Response on the grounds that it does not respond to or address the material fact set forth in Paragraph 34 of Defendant’s Statement of Undisputed Material Facts. The fact merely states that David Gales had read information regarding hydrochloric acid and that he had been trained on the hazards of hydrochloric acid. Hayward’s warnings or any alleged hazard is not placed in issue by Paragraph 34. 35. David Sexton, the plant manager when the machine was installed, also knew of the hazards associated with a high concentration of hydrochloric acid. Mr. Sexton testified that he was aware that the machine was using a high concentration of hydrochloric acid, and that the stainless steel pipes on the acid line were replaced with CPVC because the pipes were leaking. Sexton Dep., 35:10-18; 63:22-24. Plaintiff’s Response: Admitted, but immaterial. The hazard of which Hayward failed to warn in this case is the susceptibility of the diaphragm in Hayward’s gauge guard to permeation, not the corrosive properties of hydrochloric acid. Defendant’s Reply: Defendant objects to Plaintiff’s Response on the grounds that it does not directly refute the stated fact with a concise response supported by specific citations to evidence. Thus, the Court may consider the fact admitted and undisputed for the purpose of Defendant’s Motion for Summary Judgment. See Fed. R. Civ. P. 56(e)(2). Defendant further objects to Plaintiff’s Response on the grounds that it does not respond to or address the material fact set forth in Paragraph 35 of Defendant’s Statement of Undisputed Material Facts. The fact merely states that David Sexton had knowledge of the dangers of a high Case 5:16-cv-00329-TES Document 82 Filed 06/07/18 Page 12 of 35 13 9069395v.1 concentration of hydrochloric acid, and knew that the machine had to be retrofitted because of leaks. Hayward’s warnings or any alleged hazard is not placed in issue by Paragraph 35. 36. None of Plaintiff’s employees knew of any material that can withstand direct exposure to hydrochloric acid indefinitely. Burdette Dep., 125:6-10; Reed Dep., 162:21-163:10; Gales Dep., 85:18-23; Johnson Dep., 75:22-25. Plaintiff’s Response: Admitted, but this statement is misleading to the extent it suggests that Plaintiff’s employees believed that no such material exists. Burdette merely stated that he was not aware of such materials because he was “not a chemist.” Burdette Dep. 125:6-9. Reed testified that he couldn’t answer the question because he didn’t know what “indefinitely” meant, but noted that Plaintiff has “tanks and we have piping with acid in them that don’t leak.” Reed Dep. 163:14-16. Gales merely testified that he couldn’t recall such materials. Gales Dep. 85:23. Johnson testified that it was not his area of expertise. Johnson Dep. 75:25. Moreover, even if true, this statement is immaterial. The hazard of which Hayward failed to warn in this case is the susceptibility of the diaphragm in Hayward’s gauge guard to permeation, not the corrosive properties of hydrochloric acid. Defendant’s Reply: Defendant objects to Plaintiff’s Response on the grounds that it does not respond to or address the material fact set forth in Paragraph 36 of Defendant’s Statement of Undisputed Material Facts. The fact merely states that none of Plaintiff’s employees knew of any material that can withstand direct exposure to hydrochloric acid indefinitely. Hayward’s warnings or any alleged hazard is not placed in issue by Paragraph 36. 37. None of Plaintiff’s employees or agents could recall who installed the subject gauge guard, and many did not even know that a Hayward gauge guard had been installed. Case 5:16-cv-00329-TES Document 82 Filed 06/07/18 Page 13 of 35 14 9069395v.1 Johnson Dep., 43:19-44:16; 66:15-17; Gales Dep., 26:7-10; 28:10-13; 32:7-20; 33:17; 34:7-20; Reed Dep., 177:23-178:9. Plaintiff’s Response: Admitted, but immaterial. It is undisputed that the gauge guard was installed by the manufacturer Dalworth during the retrofit process. Johnson Dep. 47:22- 48:22; Young Dep. 84:7-9. Defendant’s Reply: Defendant objects to Plaintiff’s Response on the grounds that it does not directly refute the stated fact with a concise response supported by specific citations to evidence. Plaintiff’s Response misstates the cited deposition testimony. Young testified that he did not install the gauge guard, and Johnson testified that, to his knowledge, Young performed the retrofit work to replace the stainless steel piping with CPVC. None of the cited testimony indicates that the gauge guard was installed by Dalworth. Because Plaintiff’s Response does not directly refute the stated fact with specific citations to evidence, the Court may consider the fact admitted and undisputed for purposes of Defendant’s Motion for Summary Judgment. Fed. R. Civ. P. 56(e)(2). Defendant further objects to Plaintiff’s Response insofar as Plaintiff admitted in Paragraph 18 that Darryl Young does not know who installed the gauge guard but does not think it was him. Because Plaintiff’s Response does not directly refute the stated fact with specific citations to evidence, the Court may consider the fact admitted and undisputed for purposes of Defendant’s Motion for Summary Judgment. Fed. R. Civ. P. 56(e)(2). Defendant further objects to Plaintiff’s Response on the grounds that it does not respond to or address the material fact set forth in Paragraph 37 of Defendant’s Statement of Undisputed Material Facts. The fact merely states that none of Plaintiff’s employees could recall who installed the subject gauge guard, and many did not even know that a Hayward gauge guard had Case 5:16-cv-00329-TES Document 82 Filed 06/07/18 Page 14 of 35 15 9069395v.1 been installed. The fact does not relate to Darryl Young’s testimony regarding who installed the gauge guard. Rather, the fact relates to whether Plaintiff’s employees knew if a gauge guard was installed, and if so, if they knew who installed it. 38. Every Hayward gauge guard is shipped with Hayward’s Installation, Operation, and Maintenance Guide. Hayward’s response to Diacom’s Interrogatories, attached as Exhibit J; Stone Dep., 63:1-22, Exh. 5; Hayward 691, attached as Exhibit K. Plaintiff’s Response: Admitted, but immaterial. The gauge guard was sold to Dalworth, not Plaintiff, and installed by Dalworth. Young Dep. 79:20-80:24, 84:7-9, & Ex. 10; Johnson Dep. 47:22-48:22. There is no evidence in this case that any representative of Plaintiff received Hayward’s Installation, Operation and Maintenance Guide. Johnson Dep. 71:12-72:8, 73:4-12; Burdette Dep. 62:20-63:18. Defendant’s Reply: Defendant objects to Plaintiff’s Response on the grounds that it does not directly refute the stated fact with a concise response supported by specific citations to evidence. It is undisputed that the subject gauge guard was shipped to Plaintiff’s facility. Because Plaintiff’s Response does not directly refute the stated fact with specific citations to evidence, the Court may consider the fact admitted and undisputed for purposes of Defendant’s Motion for Summary Judgment. Fed. R. Civ. P. 56(e)(2). Defendant further objects to Plaintiff’s Response on the grounds that it does not respond to or address the material fact set forth in Paragraph 38 of Defendant’s Statement of Undisputed Material Facts. The fact merely states that every Hayward gauge guard is shipped with the Installation, Operation, and Maintenance Guide. The fact does not relate to whether any of Plaintiff’s employees received the Installation, Operation and Maintenance Guide. Case 5:16-cv-00329-TES Document 82 Filed 06/07/18 Page 15 of 35 16 9069395v.1 39. The Installation Guide warns that “Hayward assumes no responsibility for damage or injury resulting from chemical incompatibility between its products and the process fluids to which they are subjected. Compatibility charts provided in Hayward literature are based on ambient temperature and are for reference only. Customer should always test to determine application suitability.” Hayward 691; Stone Dep., 64:1-11, Exh. 5. Plaintiff’s Response: Admitted, but immaterial. The gauge guard was sold to Dalworth, not Plaintiff, and installed by Dalworth. Young Dep. 79:20-80:24, 84:7-9, & Ex. 10; Johnson Dep. 47:22-48:22. There is no evidence in this case that any representative of Plaintiff received Hayward’s installation, operation and maintenance guide. Johnson Dep. 71:12-72:8, 73:4-12; Burdette Dep. 62:20-63:18. Defendant’s Reply: Defendant objects to Plaintiff’s Response on the grounds that it does not directly refute the stated fact with a concise response supported by specific citations to evidence. It is undisputed that the subject gauge guard was shipped to Plaintiff’s facility. Because Plaintiff’s Response does not directly refute the stated fact with specific citations to evidence, the Court may consider the fact admitted and undisputed for purposes of Defendant’s Motion for Summary Judgment. Fed. R. Civ. P. 56(e)(2). Defendant further objects to Plaintiff’s Response on the grounds that it does not respond to or address the material fact set forth in Paragraph 39 of Defendant’s Statement of Undisputed Material Facts. The fact merely states that every Hayward gauge guard is shipped with the Installation, Operation, and Maintenance Guide. The fact does not relate to whether any of Plaintiff’s employees received the Installation, Operation and Maintenance Guide. Case 5:16-cv-00329-TES Document 82 Filed 06/07/18 Page 16 of 35 17 9069395v.1 40. None of Plaintiff’s agents or employees read any of the package instructions or inserts that were included with the gauge guard. Johnson Dep., 43:19-44:16; 66:15-17; Gales Dep., 26:7-10; 28:10-13; 32:7-20; 33:17; 34:7-20; Reed Dep., 177:23-178:9. Plaintiff’s Response: The cited depositions do not support this statement. Nevertheless, Plaintiff believes this is a correct statement because the gauge guard was sold to Dalworth, not Plaintiff, and installed by Dalworth. Young Dep. 79:20-80:24, 84:7-9, & Ex. 10; Johnson Dep. 47:22-48:22. Defendant’s Reply: Defendant objects to Plaintiff’s Response on the grounds that it does not directly refute the stated fact with a concise response supported by specific citations to evidence. Thus the Court may consider the fact admitted and undisputed for purposes of Defendant’s Motion for Summary Judgment. Fed. R. Civ. P. 56(e)(2). Defendant further objects to Plaintiff’s Response on the grounds that it does not respond to or address the material fact set forth in Paragraph 40 of Defendant’s Statement of Undisputed Material Facts. The fact merely states that none of Plaintiff’s agents or employees read any of the package instructions or inserts that were included with the gauge guard. The fact does not relate to who purchased or installed the gauge guard. *** 43. David Gales did not know there was a gauge guard on this machine, even though he was responsible for operating and inspecting the machine. Gales Dep., 26:7-10; 28:10-13; 33:17; 34:7-20. Plaintiff’s Response: Admitted, but immaterial because Gales did not need to know a gauge guard was installed in order to operate and inspect the machine. The gauge guard is not maintainable or repairable. Stevenson Dep. 69:23-70:12; Stone Dep. 168:9-169:3. All the user Case 5:16-cv-00329-TES Document 82 Filed 06/07/18 Page 17 of 35 18 9069395v.1 can do is check it for leaks, which Gales did daily anyway. Stone Dep. 169:4-8; Gales Dep. 30:9- 11, 31:1-2. Defendant’s Reply: Defendant objects to Plaintiff’s Response on the grounds that it does not directly refute the stated fact with a concise response supported by specific citations to evidence. Thus, the Court may consider the fact admitted and undisputed for purposes of Defendant’s Motion for Summary Judgment. Fed. R. Civ. P. 56(e)(2). Defendant further objects to Plaintiff’s Response on the grounds that it does not respond to or address the material fact set forth in Paragraph 43 of Defendant’s Statement of Undisputed Material Facts. The fact merely states that David Gales did not know there was a gauge guard installed on the machine. The fact does not relate to whether the gauge guard was maintainable or repairable. 44. No one involved in the retrofit process recalls installing the gauge guard, and no one involved in the retrofit process recalls who installed the gauge guard. Johnson Dep., 43:19- 44:16; 66:15-17; Gales Dep., 26:7-10; 28:10-13; 32:7-20; 33:17; 34:7-20; Reed Dep., 177:23- 178:9. Plaintiff’s Response: Admitted, but immaterial. It is undisputed that the gauge guard was installed as part of the retro fit undertaken by the machine manufacturer, Dalworth. Young Dep. 79:20-80:24, 84:7-9, & Ex. 10; Johnson Dep. 47:22-48:22. Defendant’s Reply: Defendant objects to Plaintiff’s Response on the grounds that it does not directly refute the stated fact with a concise response supported by specific citations to evidence. Thus, the Court may consider the fact admitted and undisputed for purposes of Defendant’s Motion for Summary Judgment. Fed. R. Civ. P. 56(e)(2). Case 5:16-cv-00329-TES Document 82 Filed 06/07/18 Page 18 of 35 19 9069395v.1 Defendant further objects to Plaintiff’s Response on the grounds that it does not respond to or address the material fact set forth in Paragraph 44 of Defendant’s Statement of Undisputed Material Facts. The fact merely states that no one recalls installing the gauge guard and no one knows who installed it. The fact does not relate to the reason why the gauge guard was installed or who performed the retrofit work. 45. Kyle Johnson, David Sexton, and David Gales, the Reeves employees responsible for operation and maintenance of the machine, did not even know that a Hayward gauge guard had been installed on the machine. Johnson Dep., 42:16-43:4; 43:19-44:16; 66:15-17; Gales Dep., 26:7-10; 28:10-13; 33:15-17; 34:7-20. Plaintiff’s Response: Admitted, but immaterial. These employees did not need to know a gauge guard had been installed in order to operate and maintain the machine. The gauge guard is not maintainable or repairable. Stevenson Dep. 69:23-70:12; Stone Dep. 168:9-169:3. All the user can do is check it for leaks, which Gales did daily anyway. Stone Dep. 169:4-8; Gales Dep. 30:9-11, 31:1-2. Defendant’s Reply: Defendant objects to Plaintiff’s Response on the grounds that it does not directly refute the stated fact with a concise response supported by specific citations to evidence. Thus, the Court may consider the fact admitted and undisputed for purposes of Defendant’s Motion for Summary Judgment. Fed. R. Civ. P. 56(e)(2). Defendant further objects to Plaintiff’s Response on the grounds that it does not respond to or address the material fact set forth in Paragraph 45 of Defendant’s Statement of Undisputed Material Facts. The fact merely states that Plaintiff’s employees did not know there was a gauge guard installed on the machine. The fact does not relate to whether the gauge guard was maintainable or repairable. Case 5:16-cv-00329-TES Document 82 Filed 06/07/18 Page 19 of 35 20 9069395v.1 *** 55. The Hayward Chemical Resistance Guide warns that an “A rating does not mean or imply that material performed within original specification. Chemical resistance tables should be used for reference only. [It is] the ultimate responsibility of the end user to determine the capability of the chemical being used in his or her particular application.” Stone Dep., 165:11- 17; Exh. 42. Plaintiff’s Response: Denied. There are what appear to be typographical errors that make this an inaccurate quote from Hayward’s Chemical Resistance Guide. For example, the last sentence actually reads: “It is the ultimate responsibility of the end user to determine the compatibility of the chemical being used in his or her particular application” (not “the capability of the chemical”). Stone Dep., Ex. 42. Further, this statement is immaterial to the crucial issue in this case, which is Defendant’s failure to warn of the inherent susceptibility to a permeation of the Viton diaphragm used in its gauge guard, which is not a chemical compatibility issue. Defendant’s Reply: Defendant objects to Plaintiff’s Response on grounds that it does not respond to or address the material fact set forth in Paragraph 55 of Defendant’s Statement of Undisputed Material Facts. The fact states the information contained on Hayward’s Chemical Resistance Guide, including the compatibility of Viton with hydrochloric acid. The fact does not relate to permeation of the diaphragm. 56. Hayward also provides all of its distributors, including Wipco, with a copy of the Terms and Conditions of Sale, which includes Hayward’s statement of product warranties. Stone Dep., 59:25-16; 59:23-60:5. Plaintiff’s Response: Admitted, but immaterial to Plaintiff’s claims against Hayward. Plaintiff is not in privity with Hayward. The Hayward gauge guard was sold to Dalworth by Case 5:16-cv-00329-TES Document 82 Filed 06/07/18 Page 20 of 35 21 9069395v.1 Wipco. Young Dep. 79:20-80:24, & Ex. 10. Plaintiff never ordered any parts directly from Hayward. Stone Dep. 176:6-11; Johnson Dep. 73:16-19. Therefore, Hayward’s Terms and Conditions of Sale and its product warranties are irrelevant to Plaintiff’s claims against Hayward. Stewart v. Gainesville Glass Co., Inc., 206 S.E.2d 857, 860 (Ga. Ct. App. 1974) (A “warranty is not negotiable or assignable, and does not run with the article sold.”) (quoting Smith v. Williams, 45 S.E. 394, 394 (Ga. 1903)). Defendant’s Reply: Defendant objects to Plaintiff’s Response on the grounds that it does not respond to or address the material fact set forth in Paragraph 56 of Defendant’s Statement of Undisputed Material Facts. The fact relates to information provided to Hayward’s distributors. The fact does not relate to whether Plaintiff ordered any parts directly from Hayward. 57. The warranty specifically states: “All products manufactured by Hayward are warranteed against defects in material or workmanship for a period of two years from date of shipment. . . HAYWARD MAKES NO OTHER REPRESENTATION OR WARRANTY, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO, ANY IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.” Stone Dep., 59:24-60:10; Exh. 4. Plaintiff’s Response: Admitted, but immaterial to Plaintiff’s claims against Hayward. Plaintiff is not in privity with Hayward. The Hayward gauge guard was sold to Dalworth by Wipco. Young Dep. 79:20-80:24, & Ex. 10. Plaintiff never ordered any parts directly from Hayward. Stone Dep. 176:6-11; Johnson Dep. 73:16-19. Therefore, Hayward’s Terms and Conditions of Sale and its product warranties are irrelevant to Plaintiff’s claims against Hayward. Stewart v. Gainesville Glass Co., Inc., 206 S.E.2d 857, 860 (Ga. Ct. App. 1974) (A “warranty is not negotiable or assignable, and does not run with the article sold.”) (quoting Smith v. Williams, Case 5:16-cv-00329-TES Document 82 Filed 06/07/18 Page 21 of 35 22 9069395v.1 45 S.E. 394, 394 (Ga. 1903)). Defendant’s Reply: Defendant objects to Plaintiff’s Response on the grounds that it does not respond to or address the material fact set forth in Paragraph 57 of Defendant’s Statement of Undisputed Material Facts. The fact states information on Hayward’s warranty. The fact does not relate to whether Plaintiff ordered any parts directly from Hayward. 58. Wipco, as a distributor for Hayward, had actual knowledge that Hayward parts are warranted for a period of two years. Zemler Dep., 87:13-19, attached as Exhibit L. Plaintiff’s Response: Admitted, but immaterial to Plaintiff’s claims against Hayward. Plaintiff is not in privity with Hayward. The Hayward gauge guard was sold to Dalworth by Wipco. Young Dep. 79:20-80:24, & Ex. 10. Plaintiff never ordered any parts directly from Hayward. Stone Dep. 176:6-11; Johnson Dep. 73:16-19. Therefore, Hayward’s Terms and Conditions of Sale and its product warranties are irrelevant to Plaintiff’s claims against Hayward. Stewart v. Gainesville Glass Co., Inc., 206 S.E.2d 857, 860 (Ga. Ct. App. 1974) (A “warranty is not negotiable or assignable, and does not run with the article sold.”) (quoting Smith v. Williams, 45 S.E. 394, 394 (Ga. 1903)). Defendant’s Reply: Defendant objects to Plaintiff’s Response on the grounds that it does not respond to or address the material fact set forth in Paragraph 58 of Defendant’s Statement of Undisputed Material Facts. The fact relates to Wipco’s knowledge regarding the Hayward warranty. The fact does not relate to whether Plaintiff ordered any parts directly from Hayward. 59. Wipco never relayed any warranty information to either Dalworth or Plaintiff, and Dalworth never relayed any information regarding chemical compatibility with the gauge guard to Plaintiff. Zemler Dep., 90:21-24; Young Dep., 94:10-16; Gales Dep., 89:9-22. Case 5:16-cv-00329-TES Document 82 Filed 06/07/18 Page 22 of 35 23 9069395v.1 Plaintiff’s Response: Admitted, but immaterial to Plaintiff’s claims against Hayward. Plaintiff is not in privity with Hayward. The Hayward gauge guard was sold to Dalworth by Wipco. Young Dep. 79:20-80:24, & Ex. 10. Plaintiff never ordered any parts directly from Hayward. Stone Dep. 176:6-11; Johnson Dep. 73:16-19. Therefore, Hayward’s Terms and Conditions of Sale and its product warranties are irrelevant to Plaintiff’s claims against Hayward. Stewart v. Gainesville Glass Co., Inc., 206 S.E.2d 857, 860 (Ga. Ct. App. 1974) (A “warranty is not negotiable or assignable, and does not run with the article sold.”) (quoting Smith v. Williams, 45 S.E. 394, 394 (Ga. 1903)). Defendant’s Reply: Defendant objects to Plaintiff’s Response on the grounds that it does not respond to or address the material fact set forth in Paragraph 59 of Defendant’s Statement of Undisputed Material Facts. The fact relates to Wipco’s knowledge regarding the Hayward warranty, Dalworth’s knowledge regarding chemical compatibility, and whether either Wipco or Dalworth related that information to Plaintiff. The fact does not relate to whether Plaintiff ordered any parts directly from Hayward. 60. Kyle Johnson did not receive any documentation or other literature regarding any component parts on the machine during the retrofit, even though all shipments were addressed to his attention. Johnson Dep., 32:16-33:1; 33:9-11; 45:2-7; 49:10-24; 50:12-19; 68:19-69:3; 73:10- 12; Exhs. 8-9, 10. Plaintiff’s Response: The cited testimony does not support this statement. Therefore, it is denied. Johnson testified that any literature accompanying the retrofit parts would have been given to Darryl Young of Dalworth, but he was not aware of whether or not there was any such literature. Johnson Dep. 73:4-12. Case 5:16-cv-00329-TES Document 82 Filed 06/07/18 Page 23 of 35 24 9069395v.1 Defendant’s Reply: Defendant objects to Plaintiff’s Response on the grounds that it does not directly refute the stated fact with a concise response supported by specific citations to evidence. The deposition testimony cited by Plaintiff is only a small portion of the cited testimony in support of this fact. Johnson testified that he did not receive any literature shipped with the mill or any of the component parts. Johnson Dep., 32:16-33:1; 33:9-11; 45:2-7; 49:10- 24; 50:12-19; 68:19-69:3; 73:10-12; Exhs. 8-9, 10. Because Plaintiff’s Response does not directly refute the stated fact with specific citations to evidence, the Court may consider the fact admitted and undisputed for purposes of Defendant’s Motion for Summary Judgment. Fed. R. Civ. P. 56(e)(2). 61. David Gales did not receive any instructions or other documents relating to operation of the machine, or any of its components, during the retrofit process. Gales Dep., 27:9- 28:9; 90:1-5; 95:21-25. Plaintiff’s Response: The cited testimony does not support this statement. Pages 27, 28, and 95 of Gales’ deposition testimony deal with the original installation of the machine, not the retrofit. Page 90 deals with whether or not he had received any written materials regarding replacement of the acid system, not operation of the machine or its components. Defendant’s Reply: Defendant objects to Plaintiff’s Response on the grounds that it does not directly refute the stated fact with a concise response supported by specific citations to evidence. David Gales testified that during his time working with the machine, not just during the initial installation, he never received any literature, documentation, or manuals associated with the mill, any other portions or components of the machine. Gales Dep., 27:9-28:9; 90:1-5; 95:21-25. Because Plaintiff’s Response does not directly refute the stated fact with specific Case 5:16-cv-00329-TES Document 82 Filed 06/07/18 Page 24 of 35 25 9069395v.1 citations to evidence, the Court may consider the fact admitted and undisputed for purposes of Defendant’s Motion for Summary Judgment. Fed. R. Civ. P. 56(e)(2). *** 63. Darryl Young and Dalworth Machine Products were sophisticated intermediaries between Hayward and Plaintiff. Dalworth had over 30 years experience building asphalt processing machines, and had actually installed Hayward gauge guards for use on acid systems on more than one prior occasion. Young Dep., 37:13-24; 37:25-38:5; 83:14-22; 84:10-14. Plaintiff’s Response: Denied. This is a legal conclusion, not an undisputed fact. It is undisputed that Darryl Young and Dalworth Machine Products had no knowledge that the Viton diaphragm membrane, made by Co-Defendant Diacom, in the Hayward gauge guard was susceptible to permeation. Young Dep. 144:18-21; Young Decl., ¶¶ 6-9. Moreover, they had no reason to know because Hayward’s product literature makes no mention of this hazard. See Stevenson Dep., Ex. 5. Defendant’s Reply: Defendant objects to Plaintiff’s Response on the grounds that it does not directly refute the stated fact with a concise response supported by specific citations to evidence. Defendant further objects to Plaintiff’s Response because it does not respond to or address the material fact set forth in paragraph 63. Paragraph 63 relates to Dalworth’s prior experience with building asphalt emulsion machines and installation of Hayward gauge guards. The fact does not relate to whether Young or Dalworth had any knowledge of whether the diaphragm was permeable. Because Plaintiff’s Response does not directly refute the stated fact with specific citations to evidence, the Court may consider the fact admitted and undisputed for purposes of Defendant’s Motion for Summary Judgment. Fed. R. Civ. P. 56(e)(2). Case 5:16-cv-00329-TES Document 82 Filed 06/07/18 Page 25 of 35 26 9069395v.1 65. Young had used the Hayward gauge guard on multiple prior occasions, and concedes that he reviewed the Hayward Chemical Resistance Guide before selecting this gauge guard for use at Plaintiff’s facility. Young Dep., 37:13-24; 37:25-38:5; 82:2-25; 83:14-22; 84:10- 85:6. Plaintiff’s Response: Admitted that Young reviewed the Hayward Chemical Resistance Guide. Denied that this amounts to a “concession.” Defendant’s Reply: Defendant objects to Plaintiff’s Response on the grounds that it does not directly refute the stated fact with a concise response supported by specific citations to evidence. The fact states that Young had used the Hayward gauge guard on multiple prior occasions. Plaintiff’s Response does not directly refute the stated fact with any specific citation to evidence. Thus, the Court may consider the fact admitted and undisputed for purposes of Defendant’s Motion for Summary Judgment. Fed. R. Civ. P. 56(e)(2). 66. Notwithstanding this knowledge, Young never conveyed any information that he obtained from the Hayward literature to any of Plaintiff’s agents or employees. Young Dep., 82:1-83:3; 85:5-22. Plaintiff’s Response: Admitted, but immaterial because none of the information in the Hayward literature mentions the inherent susceptibility to permeation of the Viton membrane contained in Hayward’s gauge guard. Stevenson Dep., Ex. 5. Defendant’s Reply: Defendant objects to Plaintiff’s Response on the grounds that it does not directly refute the stated fact with a concise response supported by specific citations to evidence. Defendant further objects to Plaintiff’s Response on the grounds that it does not respond to or address the material fact set forth in Paragraph 66 of Defendant’s Statement of Undisputed Material Facts. The fact states that Young did not convey any information from Case 5:16-cv-00329-TES Document 82 Filed 06/07/18 Page 26 of 35 27 9069395v.1 Hayward’s literature to Plaintiff. The fact does not relate to what information was or was not contained in the literature. Plaintiff’s Response does not directly refute the stated fact with any specific citation to evidence. Thus, the Court may consider the fact admitted and undisputed for purposes of Defendant’s Motion for Summary Judgment. Fed. R. Civ. P. 56(e)(2). 67. Nor did he provide any written materials or literature relating to the gauge guard to anyone at Reeves. Young Dep., 94:10-16; Reed Dep., 166:22-167:8. Plaintiff’s Response: Admitted, but immaterial because none of the information in the Hayward literature mentions the inherent susceptibility to permeation of the Viton membrane contained in Hayward’s gauge guard. Stevenson Dep., Ex. 5. Defendant’s Reply: Defendant objects to Plaintiff’s Response on the grounds that it does not directly refute the stated fact with a concise response supported by specific citations to evidence. Defendant further objects to Plaintiff’s Response on the grounds that it does not respond to or address the material fact set forth in Paragraph 67 of Defendant’s Statement of Undisputed Material Facts. The fact states that Young did not provide any written materials or literature relating to the gauge guard to Plaintiff. The fact does not relate to what information was or was not contained in the literature. Plaintiff’s Response does not directly refute the stated fact with any specific citation to evidence. Thus, the Court may consider the fact admitted and undisputed for purposes of Defendant’s Motion for Summary Judgment. Fed. R. Civ. P. 56(e)(2). *** 71. Plaintiff did not have a formalized preventive maintenance schedule for replacing any component parts on the machine, but relied on Dalworth to provide that information. Johnson Dep., 62:16-24; 67:10-20; Gales Dep., 31:10-15; Reed Dep., 34:22-35:1; Crum Dep., 45:21-25; Burdette Dep., 131:5-18. Case 5:16-cv-00329-TES Document 82 Filed 06/07/18 Page 27 of 35 28 9069395v.1 Plaintiff’s Response: Denied. Johnson testified that Plaintiff implemented preventative maintenance based on experience. Johnson Dep. 67:21-68:9. In addition, preventative maintenance called for the machine to be periodically rebuilt. Gales Dep. 32:7-10, 96:11-17. Defendant’s Reply: Defendant objects to Plaintiff’s Response on the grounds that it does not directly refute the stated fact with a concise response supported by specific citations to evidence. Johnson testified that he did not develop a preventive maintenance schedule for the machine, and that he did not discuss a preventive maintenance schedule with Darryl Young or Dalworth. Johnson Dep., 62:16-24; 67:10-20. Gales testified that there was no preventive maintenance schedule on the machine. Gales Dep., 31:10-15. The cited testimony by Johnson relates to preventive maintenance with asphalt equipment generally, and not specifically to the machine at issue in this case. Because Plaintiff’s Response does not directly refute the stated fact with any specific citation to evidence, the Court may consider the fact admitted and undisputed for purposes of Defendant’s Motion for Summary Judgment. Fed. R. Civ. P. 56(e)(2). Defendant further objects to Plaintiff’s Response on grounds that it does not respond to or address the material fact set forth in Paragraph 71 of Defendant’s Statement of Undisputed Material Facts. The fact relates to preventive maintenance for component parts on the machine, not as to the machine as a whole. 72. However, Young did not provide a recommended maintenance schedule for any component parts. Young Dep., 94:17-96:2. Plaintiff’s Response: Denied. Young testified that he provided a lengthy manual for the Dalworth asphalt mill and its component parts. Young Dep. 96:3-10. Admitted that Dalworth did not provide literature specific to Hayward’s gauge guard. Young Dep. 94:10-16. Case 5:16-cv-00329-TES Document 82 Filed 06/07/18 Page 28 of 35 29 9069395v.1 Defendant’s Reply: Defendant objects to Plaintiff’s Response on the grounds that it does not directly refute the stated fact with a concise response supported by specific citations to evidence. Defendant further objects to Plaintiff’s Response on grounds that it does not respond to or address the material fact set forth in Paragraph 72 of Defendant’s Statement of Undisputed Material Facts. Young testified that he did not provide any recommendations for maintenance on component parts of the machine because Plaintiff should already have a program in place, they are familiar with all of the component parts, and they are actually operating the machine. The cited testimony by Young is that he did not provide Plaintiff with any written materials relating to the Hayward gauge guard. Because Plaintiff’s Response does not directly refute the stated fact with any specific citation to evidence, the Court may consider the fact admitted and undisputed for purposes of Defendant’s Motion for Summary Judgment. Fed. R. Civ. P. 56(e)(2). 73. Rather, from Dalworth’s perspective, it was Plaintiff’s responsibility to establish a maintenance program based on their plant’s specific needs. Young Dep., 94:17-95:11. Plaintiff’s Response: Denied. This is not an undisputed fact. Rather, it is Defendant Hayward’s characterization of Dalworth’s “perspective.” Defendant’s Reply: Defendant objects to Plaintiff’s Response on the grounds that it does not directly refute the stated fact with a concise response supported by specific citations to evidence. Young testified that he did not provide any recommendations for maintenance on component parts of the machine because Plaintiff should already have a program in place, they are familiar with all of the component parts, and they are actually operating the machine. Because Plaintiff’s Response does not directly refute the stated fact with any specific citation to evidence, the Court may consider the fact admitted and undisputed for purposes of Defendant’s Motion for Summary Judgment. Fed. R. Civ. P. 56(e)(2). Case 5:16-cv-00329-TES Document 82 Filed 06/07/18 Page 29 of 35 30 9069395v.1 74. Plaintiff apparently intended to run the machine continuously until it malfunctioned and completely stopped working, which is exactly what happened, with calamitous results. Willard Dep., 187:17-20. Plaintiff’s Response: Denied. This is not an undisputed fact. It is Defendant Hayward’s characterization of Willard’s testimony, and it is incorrect. Plaintiff had a preventative maintenance program that consisted of daily checks of the machine and all of its gauges and valves, and checks for leaks. Gales Dep. 30:9-11, 31:1-2. In addition, it was intended that the machine would be periodically rebuilt. Id. at 32:7-10, 96:11-17. Finally, Burdette’s testimony makes clear that the machine was not run continuously. It was operated as needed to satisfy customer demand. Burdette Dep. 44:24-46:9. Defendant’s Reply: Defendant objects to Plaintiff’s Response on the grounds that it does not directly refute the stated fact with a concise response supported by specific citations to evidence. Defendant further objects to Plaintiff’s Response on grounds that it does not respond to or address the material fact set forth in Paragraph 74 of Defendant’s Statement of Undisputed Material Facts. The cited testimony by Gales relates to his inspection of the machine, and not to any preventive maintenance. Gales further testified that the Dalworth mill (not the entire machine) needed to be rebuilt every 2 to 3 million gallons. Because Plaintiff’s Response does not directly refute the stated fact with any specific citation to evidence, the Court may consider the fact admitted and undisputed for purposes of Defendant’s Motion for Summary Judgment. Fed. R. Civ. P. 56(e)(2). *** Case 5:16-cv-00329-TES Document 82 Filed 06/07/18 Page 30 of 35 31 9069395v.1 79. In drafting the warnings and instructions included with the gauge guard, Hayward relied upon information in the public domain and other published reference material. Stone Dep., 177:17-178:22. Plaintiff’s Response: Denied. The referenced testimony relates only to the source of the data in Hayward’s Chemical Compatibility Guide, not the drafting of warnings and instructions. Stone Dep. 177:17-18. Defendant’s Reply: Defendant objects to Plaintiff’s Response on the grounds that it does not directly refute the stated fact with a concise response supported by specific citations to evidence. Hayward’s Chemical Compatibility Guide contains warnings related to the data included in the Guide, which came from information in the public domain. Because Plaintiff’s Response does not directly refute the stated fact with any specific citation to evidence, the Court may consider the fact admitted and undisputed for purposes of Defendant’s Motion for Summary Judgment. Fed. R. Civ. P. 56(e)(2). *** 82. Plaintiff is exclusively involved in the manufacture of asphalt emulsions and had been using a high concentration of hydrochloric acid since its plant began operating. Burdette Dep., 14:12-16; 117:7-22; Reed Dep., 94:12-15; Gales Dep., 41:13-18. Plaintiff’s Response: Denied as stated with respect to the characterization of the concentration of hydrochloric acid as “high.” The percentage concentration of hydrochloric acid used by plaintiff was 34%, which is higher than the concentration used by some other manufacturers of asphalt emulsions but not as high as the 37% concentration Hayward marketed the gauge guard as withstanding. Stevenson Dep. 81:12-82:6. Plaintiff has no information with respect to what defendant means by the term “high” concentration. Case 5:16-cv-00329-TES Document 82 Filed 06/07/18 Page 31 of 35 32 9069395v.1 Defendant’s Reply: Defendant objects to Plaintiff’s Response on the grounds that it does not directly refute the stated fact with a concise response supported by specific citations to evidence. The fact relates to the business operations of Plaintiff and the concentration of hydrochloric acid used in its operations. Moreover, Plaintiff admitted that 35% hydrochloric acid is more concentrated that customarily used in the industry. See supra, ¶5. Plaintiff’s Response does directly respond or relate to this stated fact. Thus, the Court may consider the fact admitted and undisputed for purposes of Defendant’s Motion for Summary Judgment. Fed. R. Civ. P. 56(e)(2). Defendant further objects to Plaintiff’s Response on the grounds that it does not respond to or address the material fact set forth in Paragraph 82 of Defendant’s Statement of Material Facts. The fact merely states that the concentration of acid used at the Perry facility was more concentrated than is custom in the industry. Hayward’s Chemical Resistance Guide or other documentation regarding the gauge guard is not placed in issue by Paragraph 82. Because Plaintiff’s Response misstates the testimony and documents at issue, and Plaintiff has failed to cite to any evidence in its Response that directly refutes Paragraph 82, the Court may therefore consider this fact admitted and undisputed for purposes of Defendant’s Motion for Summary Judgment. Fed. R. Civ. P. 56(c)(1)-(2) and (e)(2). Case 5:16-cv-00329-TES Document 82 Filed 06/07/18 Page 32 of 35 33 9069395v.1 Respectfully submitted this 7th day of June, 2018. 950 East Paces Ferry Road Suite 2850 Atlanta, Georgia 30326 470.419.6653 (Direct) 470.419.6650 (Main) 470.419.6651 (Fax) jeffrey.melcher@wilsonelser.com tawana.johnson@wilsonelser.com WILSON ELSER MOSKOWITZ EDELMAN & DICKER LLP /s/ Jeffrey W. Melcher Jeffrey W. Melcher Georgia Bar No. 501180 Tawana B. Johnson Georgia Bar No. 339485 Counsel for Defendant Hayward Industries, Inc. Case 5:16-cv-00329-TES Document 82 Filed 06/07/18 Page 33 of 35 34 9069395v.1 IN THE UNITED STATES DISTRICT COURT MIDDLE DISTRICT OF GEORGIA MACON DIVISION Civil Action File Number 5:16-cv-329 REEVES CONSTRUCTION COMPANY, a Georgia corporation, Plaintiff, v. HAYWARD INDUSTRIES, INC., a New Jersey corporation, and DIACOM CORPORATION, a Delaware corporation, Defendants. ) ) ) ) ) ) ) ) ) ) ) ) CERTIFICATE OF SERVICE I HEREBY CERTIFY that on this date I filed the foregoing DEFENDANT HAYWARD INDUSTRIES, INC.’S REPLY IN SUPPORT OF STATEMENT OF MATERIAL FACTS FOR WHICH THERE IS NO GENUINE ISSUE TO BE TRIED via CM/ECF, which will automatically serve all Counsel of record as follows: Jefferson C. McConnaughey David Bessho Cozen O’Connor Promenade II Suite 400 1230 Peachtree Street NE Atlanta, GA 30309 jmcconnaughey@cozen.com dbesssho@cozen.com Attorneys for Plaintiff Ollie M. Harton William J. Martin Hawkins Parnell Thackston & Young LLP 303 Peachtree Street NE Suite 4000 Atlanta, Georgia 30308 oharton@hptylaw.com wmartin@hptylaw.com Attorneys for Defendant Diacom Corporation Case 5:16-cv-00329-TES Document 82 Filed 06/07/18 Page 34 of 35 35 9069395v.1 This 7th day of June, 2018. 950 East Paces Ferry Road Suite 2850 Atlanta, Georgia 30326 470.419.6653 (Direct) 470.419.6650 (Main) 470.419.6651 (Fax) jeffrey.melcher@wilsonelser.com tawana.johnson@wilsonelser.com WILSON ELSER MOSKOWITZ EDELMAN & DICKER LLP /s/ Tawana B. Johnson Jeffrey W. Melcher Georgia Bar No. 501180 Tawana B. Johnson Georgia Bar No. 339485 Counsel for Defendant Hayward Industries, Inc. Case 5:16-cv-00329-TES Document 82 Filed 06/07/18 Page 35 of 35