Ronald J. Papa et al.,, Appellants,v.Associated Indemnity Corporation et al., Respondents.BriefN.Y.June 20, 2017To be Argued by: SEAN W. COSTELLO (Time Requested: 10 Minutes) Appellate Division Docket No. CA 16-01136 Erie County Clerk’s Index No. 2012-600077 New York Supreme Court Appellate Division—Fourth Department RONALD J. PAPA and THERESA M. PAPA d/b/a MUIR LAKE ASSOCIATES, Plaintiffs-Respondents, – against – ASSOCIATED INDEMNITY CORPORATION and D&D POWER, INC., Defendants-Appellants. NATIONAL FIRE ADJUSTMENT CO., INC., Plaintiff-Respondent, – against – D&D POWER, INC., Defendant-Appellant. REPLY BRIEF FOR DEFENDANT-APPELLANT D&D POWER, INC. Of Counsel: R. Anthony Rupp III Sean W. Costello RUPP BAASE PFALZGRAF CUNNINGHAM LLC Attorneys for Defendant-Appellant D&D Power, Inc. 1600 Liberty Building 424 Main Street Buffalo, New York 14202 (716) 854-3400 TABLE OF CONTENTS PRELIMINARY STATEMENT ....... ............ .... .... ....... .. ... .. ................ ....... ........ ........ ....... .. ... ... .... . 1 ARGUMENT ......... .......... ..... ... .... ... .................. .... ..... ... .. ... .. ... ... ... ... .... ................... .... .. ..... ......... .. ... 2 POINT I THE QUALIFIED EXPERT METALLURGIST'S OPINION CONFIRMS THAT THE CONDUIT FAILED DUE TO CORROSION ..................... ... .. . 2 POINT II D&D WAS NOT NEGLIGENT, AND PLAINTIFFS' DAMAGES WERE NOT REASONABLY FORESEEABLE AT THE TIME OF THE UTILITY POLE REPLACEMENT ..... ...... .. ................ .... ...... ... 10 CONCLUSION ... .... ... .......... ... ....... ..... .. ...... ........ .. ..... .............. .. ..... ........ ... .............................. ...... 14 TABLE OF AUTHORITIES CASES Danielenko v. Kinney Rent A Car, Inc., 57 N.Y.2d 198, 455 N.Y.S.2d 555 (1982) ................................................ .. ... ........................... 12 Deridarian v. Felix Contractor Corp., 51 N.Y.2d 308, 315,414 N.E.2d 666 (1980) .. ... ..... ... .. ... ..... .... ................ ... .... ..... ...... ................. 2 Edwards v. St. Elizabeth Med. Ctr., 72 A.D.3d 1595, 899 N.Y.S.2d 499 (4th Dep't 2010) .............. ... .. ............. ....... .............. .. ......... 7 Hileman v. Schmitt's Garage, Inc., 58 A.D.2d 1029, 397 N.Y.S.2d 501 (4th Dep't 1977) ..... ..... ... .......... ... ............. ... ..... ....... ...... 3, 4 Muhammad v. Fitzpatrick, 91 A.D.3d 1353,937 N.Y.S.2d 519 (4th Dep't 20 12) ... .......... ................ .. ......... .............. .. ........ 9 Nonnon v. City of New York, 32 A.D.3d 91,819 N.Y.S.2d 705 (1st Dep't 2006) .. ........ ............... .. ..... ... ....... ..... .. .............. ... .. 9 Payant v. Imobersteg, 256 A.D.2d 702, 68 1 N.Y.S.2d 135 (3d Dep' t 1998) ... ..... ....... ....... ... ... ... ....... ... .... ..... .. .... ...... .. . 6 Schuster v. Dukarm, 38 A.D.3d 1358, 831 N.Y.S.2d 619 (4th Dep' t 2007) ...... .. ..... ... .................... ....... .. ..... .... ...... .... 7 Smith v. M. V. Woods Constr. Co., 309 A.D.2d 1155, 764 N.Y.S.2d 749 (4th Dep't 2003) .... ................. ............. ........................ 5, 6 Wasserman v. Carella, 307 A.D.2d 225, 762 N.Y.S.2d 382 (1st Dep' t 2003) ..... ... ........................ ... .... .. ....................... 7 STATUTE CPLR 3212 ..... ........... ............. .... ... ... ...... .... ...... ....... ....... .......... .................. .... ....... .... ...................... 1 11 PRELIMINARY STATEMENT Defendant, D&D Power, Inc. ("D&D"), submits this reply brief in further support of its consolidated appeals from an order granted by the Hon. Diane Y. Devlin, J.S.C., on February 22, 2016, which denied D&D's motions for summary judgment. As set forth in D&D's principal brief, D&D's motion was supported with evidence establishing that corrosion, not D&D's alleged negligence, caused the metal conduit at issue to fail. In their opposition brief, plaintiffs launch some unfounded attacks on D&D's expert metallurgist, but these are a mere distraction and do not refute the expert's opinion within a reasonable degree of metallurgical certainty that the metal conduit failed because of corrosion. Plaintiffs still have failed to offer any expert proof supporting their speculation that the conduit failed due to stress placed on it during the pole-replacement procedure, and speculation simply cannot defeat a motion for summary judgment supported by evidence. Further, even if D&D's work had caused further damage to the corroded conduit, which already was in a state of failure, plaintiffs have not pointed to any evidence that their damages were foreseeable. The trial court should have granted D&D summary judgment as a matter of law because the undisputed evidence established that it was not foreseeable that the conduit, which appeared from the surface to be sound, was corroded through underground at its point of failure. For all of the reasons set forth below and in D&D's principal brief, D&D cannot be liable to plaintiffs as a matter of law. The trial court's order should be reversed and D&D's motions for summary judgment pursuant to CPLR 3212 should be granted. ARGUMENT POINT I THE QUALIFIED EXPERT METALLURGIST'S OPINION CONFIRMS THAT THE CONDUIT FAILED DUE TO CORROSION. As explained in D&D's principal brief, D&D's motion for summary judgment was supported by the affidavit of Mohan S. Devgun, Ph.D., who is an expert metallurgist and Chair and Professor at the Buffalo State College Department of Engineering Technology. (R. 248-249). It is undisputed that Professor Devgun is the only expert metallurgist who has examined the metal conduit sweep at issue. He opined that it is his "professional opinion within a reasonable degree of metallurgical certainty that the sweep failed because of prolonged corrosion and that overstress of the metal played no part in the separation of the sweep from the PVC conduit." (R. 247). In opposition to D&D's motion for summary judgment, plaintiffs failed to offer qualified expert evidence - from a metallurgist or otherwise - that supports their speculative claim that the conduit at issue failed due to D&D's work. See D&D's Brief at pp. 13- 19. Additionally, plaintiffs did not oppose D&D's motion with the affidavit of an expert in the field of utility pole replacement, and no qualified expert controverts the testimony of D&D's representatives regarding the propriety of D&D's utility pole replacement. Plaintiffs failed to present evidence supporting their speculation regarding the cause of the metal conduit's fai lure, and thus this is a case "where only one conclusion may be drawn from the established facts and where the question of legal cause may be decided as a matter of law." Derdiarian v. Felix Contractor Corp., 51 N.Y.2d 308,3 15,434 N.Y.S.2d 166, 170 (1980). - 2 - To distract from their failure to rebut D&D's evidence that its work was not the proximate cause of their damages , plaintiffs' brief questions whether D&D's expert metallurgist was qualified to offer an opinion on the failure of the metal conduit. As discussed below, plaintiffs ' critiques of Professor Devgun's affidavit are baseless, and they have offered no expert evidence controverting Professor Devgun's professional opinion as an expert metallurgist that the conduit failed due to corrosion. Plaintiffs only speculate that the metal conduit failed because D&D did not support it during the utility pole replacement at issue. They presented no metallurgist' s opinion, and no expert evidence that D&D's work was negligent. In contrast, D&D demonstrated its entitlement to judgment as a matter of law because it offered evidence, including Professor Devgun's expert opinion, that the metal conduit failed due to corrosion. The fact that the conduit failed due to corrosion necessarily means that it did not fail because of stress placed on the conduit during the utility pole replacement. Because Professor Devgun's metallurgical expertise allowed him to identify the true cause of the conduit failure, he certainly is qualified to state that the plaintiffs' speculative cause for the failure is not correct. In an attempt to support their claim that D&D's expert metallurgist was not qualified to opine on the cause of the metal failure at issue, plaintiffs cite to Hileman v. Schmitt's Garage, Inc., 58 A.D.2d 1029, 397 N.Y.S.2d 501 (4th Dep't 1977). Hileman does not support plaintiffs' argument that an expert metallurgist somehow is not qualified to determine the cause of the metal failure at issue. There, "[p]laintiff's expert testified that his specialty was physical - 3 - metallurgy, particularly in the area of failure analysis, i.e., surface phenomena such as fusion, processing and treatment of steels." 397 N.Y.S.2d at 503. This Court concluded that it would have been proper for plaintiff's counsel to "pursue a line of questioning which might have connected the disengagement of the wheel to a defect or flaw in the metal rim." /d. However, rather than have the metallurgist offer such an opinion, the attorney improperly attempted instead "to qualify the metallurgist as an expert in dynamics and forces." /d. Here, Professor Devgun's opinion is based on his inspection of the metal conduit sweep at issue and his observation that the metal conduit sweep failed due to corrosion of metal. This is an opinion wholly and appropriately within the field of metallurgy, not dynamics. The observation that the metal conduit did not fail due to stresses placed on it during the pole replacement is not an expert opinion on dynamics, as an expert metallurgist certainly is qualified to state whether metal exhibits an overstress failure or failed because of corrosion. That the conduit did not sustain an overstress failure also is the obvious corollary to the expert metallurgical opinion that the cause of the metal conduit' s failure was corrosion. Indeed, the photographs attached to the Devgun Affidavit show such extreme and obvious corrosion through the conduit that this failure due to corrosion may even be a matter within the ordinary experience and understanding of a layperson. (R. 250-256). Though hardly relevant to this case where an expert metallurgist opined on the cause of a metal conduit's failure, plaintiffs' brief persists in its attempt to pull a question of fact - 4 - from thin air by emphasizing in bold text an observation from an opinion of this Court that "a metallurgist may not testify on dynamics and forces." Smith v. M . V. Woods Constr. Co., 309 A.D.2d 1155, 1156, 764 N.Y.S.2d 749, 751 (4th Dep't 2003); see Plaintiffs' Brief at p. 18. The context of that opinion was a holding that a vocational rehabilitation expert properly testified regarding the personal-injury plaintiff's vocational abilities, but lacked the expertise to testify about the plaintiff's "past and future loss of earnings, past and future loss of household services or future medical expenses, all of which are generally the subject of expert testimony by an economist." 309 A.D.2d at 1156. Here, as explained above, Professor Devgun is an expert metallurgist, and his opinion related to the failure of the metal conduit. He did not observe "evidence of an overstress failure" of the metal, and concluded that the conduit failed due to corrosion. (R. 245). Despite what plaintiffs suggest, in making an observation regarding the condition of the metal conduit that he personally examined, Professor Devgun did not offer an expert opinion regarding dynamics and forces. In any case, the fact that the conduit failed due to corrosion necessarily means that it did not fail because of stress placed on it during the utility pole replacement. If anything, the Smith v. M. V. Woods decision reinforces the fact that plaintiffs failed to rebut D&D's proof that the metal conduit failed as a result of corrosion. Plaintiffs did not come forward with a contrary opinion from a qualified expert that would have created a question of fact. They offered an unsworn report from an architect and a statement from an electrician, neither of whom were qualified to opine on the cause of the metal failure at issue. See D&D's Brief at pp. 13-14. These individuals might properly have offered an expert opinion in a case involving architecture or an electrical system, but there is nothing to indicate that their - 5 - "area of expertise includes assessing" metal failures, and they lacked "a proper foundation for the expert's opinion" on the cause of the metal conduit's failure. Smith, 309 A.D.2d at 1156. For the proposition that Professor Devgun' s "opinions exceed the scope of his expertise and are not admissible," plaintiffs' brief at page 20 cites to Payant v. Imobersteg, 256 A.D.2d 702, 681 N.Y.S.2d 135 (3d Dep't 1998). Payant was concerned with the testimony of medical professionals, not metallurgists, and certainly does not bear on the "scope" of Professor Devgun's expertise. In any event, while Professor Devgun may not have been qualified to offer an opinion on dynamics (and he did not), as an expert metallurgist with experience in failure investigations, Professor Devgun certainly is qualified to determine whether a metal object sustained an overstress failure or failed due to corrosion. His education, experience, and training in the field of metallurgy are set forth in his affidavit. Professor Devgun's affidavit also describes the factual bases for his opinion in this case, including his review of the underlying facts of this case, relevant data sources, and scientific literature. (R. 231-232, 248-249). Further, and contrary to plaintiffs' claims in opposition to D&D's motion, Professor Devgun's opinion regarding the failure of the metal did not require any "expertise in electrical systems or utility pole replacements." See Plaintiffs' Brief at p. 19. While Professor Devgun properly noted that D&D presented evidence that the utility pole replacement was "typical," the metallurgical opinion he offered did not relate to the propriety of the electrical system or utility pole replacement, but specifically was limited to the cause for the failure of the conduit at issue. - 6- As for plaintiffs' claim that Professor Devgun is not a "soils expert," this too has nothing to do with the ultimate metallurgical opinion that he reached. Professor Devgun explained soil resistivity to help explain for the Court and the parties why the corrosion occurred, which is independent of his conclusion that the metal conduit failed due to corrosion. Notably, too, plaintiffs overlooked, or did not trouble to examine, the list of resources that Professor Devgun reviewed. These resources include a database with information on the soil resistivity in the area at issue. (R. 232). Plaintiffs argue that D&D's expert opinion did not satisfy its burden on a motion for summary judgment, but in the cases they cite for that proposition, no evidentiary facts supported the experts' opinions. See Schuster v. Dukarm, 38 A.D.3d 1358,83 1 N.Y.S.2d 619 (4th Dep' t 2007), Wasserman v. Carella, 307 A.D.2d 225, 762 N.Y.S.2d 382 (1 st Dep't 2003). In this case, the factual basis for Professor Devgun's opinions is set forth at length in his expert affidavit, and includes his review of pleadings, materials exchanged in discovery, photographs, deposition testimony, a soil survey, and scholarly articles. (R. 232). Plaintiffs' suggestion that Professor Devgun' s affidavit fails to provide a basis for his expert opinion also disregards the fact that Professor Devgun personally examined the conduit itself. (R. 229-231). Thus, contrary to plaintiffs' suggestion that Professor Devgun 's opinion was "baseless," it was well founded on evidence described in his affidavit. See Edwards v. St. Elizabeth Med. Ctr., 72 A.D.3d 1595, 1596, 899 N.Y.S.2d 499, 500 (4th Dep' t 2010) ("court erred in determining that the affidavit of her expert safety engineer submitted in opposition to the motion was without foundation, speculative and lacking probative value" because the "expert relied upon his review of the complete record, as well as his experience" and "cited scientific literature") . - 7 - Further, plaintiffs offer a number of objections to Professor Devgun's non-destructive visual inspection of the conduit, suggesting that Professor Devgun should have performed unspecified "testing." Plaintiffs ' Brief at pp. 19, 23. However, the photographs of the subject conduit show the conduit clearly and obviously to be corroded through, and Professor Devgun's affidavit recites that his observations during his non-destructive examination of the metal conduit, together with the other information that he reviewed, was sufficient for him to form his opinion. (R. 230-231). Plaintiffs have offered no expert witness affidavit of their own with which they can rebut Professor Devgun's opinions, and their unsupported speculation that unspecified "testing" should have been performed does nothing to refute Professor Devgun' s opm10ns. Nothing in plaintiffs' argument changes the fact that Professor Devgun is an expert metallurgist, fully qualified to offer the opinion that he rendered. Plaintiffs have attempted to find fault with Professor Devgun' s inspection of the conduit, but they have no metallurgical expert who drew a contrary conclusion from the evidence or who offers an opinion that Professor Devgun should have taken some other steps during his inspection. Plaintiffs' brief claims that D&D failed to meet a "burden of providing [sic] general acceptance of an expert' s methodology rests upon the party offering the disputed expert testimony." Plaintiffs' Brief at p. 23 (emphasis added). However, Professor Devgun's expert metallurgical opinion and the foundation for that opinion are not disputed by any qualified expert. Indeed, the cases cited by plaintiffs for the proposition that D&D somehow had a burden to demonstrate the validity of Professor Devgun's "procedures" are inapplicable to this - 8 - matter, because in those cases, there were dueling experts in the relevant field, each claiming that the other's methods were unsound. See Nonnon v. City of New York, 32 A.D.3d 91 , 107, 819 N.Y.S.2d 705, 716 (1st Dep' t 2006) (where both plaintiffs and defendants had expert epidemiologists and toxicologists offering competing opinions regarding whether "extended exposure to hazardous levels of numerous carcinogens in this particular landfill caused their cancers."); Muhammad v. Fitzpatrick, 91 A.D.3d 1353, 1354, 937 N.Y.S.2d 519, 521 (4th Dep't 2012) (plaintiff made a "showing that [defendants'] theory was not generally accepted within the relevant medical community."). Here, plaintiffs made no evidentiary showing that Professor Devgun's opinion was not supported by the evidence, because they offered no expert on metal failures who concluded that the conduit failed for a reason other than corrosion. They did not offer any metallurgist' s opinion that Professor Devgun's examination of the evidence was inadequate or improper, and indeed, the failure of the conduit due to corrosion probably is obvious even to a lay observer, given the corroded appearance of the conduit and the many visible points where corrosion made holes in the conduit. Plaintiffs' attacks on D&D's expert claiming that his opinions are not based on evidence are false and inexplicable, because Professor Devgun's affidavit recites his review of evidence, not least of all the actual metal conduit at issue. Plaintiffs claim that Professor Devgun "has not supported his conclusions with cogent evidence." Plaintiffs' Brief at p. 24. That claim is preposterous and not even superficially true, given Professor Devgun's detailed explanation of the evidence that he reviewed and the explanation of relevant principles of metallurgical science contained in his affidavit. - 9- In sum, plaintiffs have not presented expert analysis of the conduit sweep at issue that refutes the opinion of D&D's expert metallurgist that the conduit failed due to corrosion. Plaintiffs have failed to offer any expert proof or direct evidence supporting their speculative theory- refuted by the physical evidence - that stress placed on the conduit, not corrosion, caused the conduit to fail. D&D met its burden of proving that it did not proximately cause plaintiffs' damages and there is no material question of fact precluding judgment in favor of D&D as a matter of law. Plaintiffs' baseless attempts to create a question of fact regarding the cause of the metal conduit's failure cannot remedy their failure to submit competent expert evidence supporting their purely speculative theory that the visibly-corroded conduit failed as a result of stress during the utility pole replacement. There is no true question of fact regarding the cause of the conduit failure. Because the unrebutted expert proof establishes that D&D's work was not the proximate cause of plaintiffs' alleged damages, this Court should grant summary judgment dismissing plaintiffs' complaints against D&D. POINT II D&D WAS NOT NEGLIGENT, AND PLAINTIFFS' DAMAGES WERE NOT REASONABLY FORESEEABLE AT THE TIME OF THE UTILITY POLE REPLACEMENT. D&D demonstrated that it is entitled to summary judgment as a matter of law because the undisputed facts of this case establish that plaintiffs' alleged damages were not reasonably foreseeable at the time of the utility pole replacement. See D&D's Brief at pp. 21 -23. D&D established that the damages were not reasonably foreseeable because: - 10 - (1) The portion of the conduit sweep/elbow that was visible during the utility pole replacement appeared to be in good condition, and there was no sign of any problem with the conduit. (R. 168, 180, 187-188, 243); (2) The normal pole-replacement procedure did not require that D&D support the conduit or the secondary electrical service lines that ran through the conduit. (R. 138, 143, 165, 175); and (3) The conduit was buried in and supported by the earth. (R. 143, 172). In opposition to D&D's motion, plaintiffs submitted no proof suggesting that any of these statements was incorrect or that suggests that plaintiffs' alleged damages were or should have been foreseeable to D&D. In fact, plaintiffs' opposition to D&D's motion for summary included an affidavit from plaintiff Ronald J. Papa where he: (1) Cited to evidence that there was no obvious condition of concern with respect to the visual portion of the conduit. (R. 167-168, 855); (2) Noted that D&D allowed the secondary service lines at issue to be supported by the ground. (R. 853); and (3) Attached photographs showing that the conduit break at issue was below the surface of the earth. (R. 884 ). There are no questions of fact regarding these circumstances. Plaintiffs do not dispute that from the surface, the corroded and unsound condition of the conduit was not apparent. As set forth in D&D's brief, this meant that D&D did not need to support the conduit or the secondary electrical service lines that ran through the conduit during the pole replacement, because during a routine utility pole replacement with a sound conduit, there is no need to provide additional support for the conduit. See D&D's Brief at p. 22. D&D's evidence that the pole-replacement procedure used was proper and that it was not foreseeable that it would damage - 11 - the conduit is uncontroverted by any expert or other person with skill, knowledge, experience, and training in the field of utility pole replacement. (R. 138, 143, 165, 175). Thus, the essential facts are undisputed, and it was not foreseeable under these facts that D&D's pole-replacement work would damage the conduit. See Danielenko v. Kinney Rent A Car, Inc., 57 N.Y.2d 198, 204, 455 N.Y.S.2d 555, 557 (1982) ("Whether a breach of duty has occurred, of course, depends upon whether the resulting injury was a reasonably foreseeable consequence of the defendants' conduct."). Plaintiffs' appellate argument focuses on proximate causation, not whether their damages reasonably were foreseeable at the time of the utility pole replacement. Plaintiffs offer that because their architect and electrician concluded, without any foundation, that the conduit was "ruptured" and "torqued," there "is a logical inference for the jury's consideration that such damage was caused by D&D's failure to support the wires during the replacement, and not by mere 'corrosion' as D&D contends." Plaintiffs' Brief at p. 26. This argument misses the mark. Even accepting plaintiffs' speculation that their damages could have been avoided if D&D had supported the conduit during the utility pole replacement, plaintiffs cannot establish that D&D violated a duty of care that it owed to them when it did not support the conduit. D&D's workers had extensive experience replacing utility poles and testified that sound conduits are not damaged in the pole replacement procedure that D&D used. Plaintiffs ' after-the-fact claim that the conduit was "ruptured" and "torqued" in no way establishes that this result was foreseeable. There was no evidence offered to establish that plaintiffs' damages reasonably were foreseeable, as plaintiffs offered no evidence from anyone familiar with utility pole replacement - 12 - procedures that disputed the testimony of D&D's journeyman linemen, which established that plaintiffs' damages were not foreseeable. Therefore, the undisputed evidence in this case established that it was not reasonably foreseeable that the conduit at issue- which appeared sound- would break during the utility pole replacement if not supported. D&D's conduct was reasonable in light of what could have been anticipated, so there was no breach of a duty to plaintiffs, no negligence, and there can be no liability. The trial court should have granted D&D's motion for summary judgment. - 13 - CONCLUSION Plaintiffs' speculation did not create a genuine issue of material fact regarding the metal conduit's failure requiring the trial of this matter, and the trial court erred when it denied D&D's motion for summary judgement. Further, plaintiffs' damages were not foreseeable at the time of the utility pole replacement because D&D could not have known of the corroded condition of the conduit. D&D demonstrated its entitlement to summary judgment as a matter of law, and this Court should reverse the trial court's order and issue an order granting summary judgment dismissing plaintiffs' actions against D&D. Dated: August 10, 2016 Buffalo, New York RUPP BAASE PFALZGRAF CUNNINGHAM LLC Attorneys for Defendant/ Appellant, D&D Power, Inc. R. Anthony Rupp III, Esq. Sean W. Costello, Esq. 1600 Liberty Building Buffalo, New York 14202 (716) 854-3400 - 14-