Sun Chemical Corporation v. Fike Corporation et al

REPLY BRIEF to Opposition to Motion

D.N.J.March 13, 2017

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW JERSEY SUN CHEMICAL CORPORATION, PLAINTIFF, vs. FIKE CORPORATION and SUPPRESSION SYSTEMS INCORPORATED, DEFENDANTS. Civil Action No. 2:13-cv-04069-JMV-MF DEFENDANTS, FIKE CORPORATION AND SUPPRESSION SYSTEMS INC.’S, REPLY TO PLAINTIFF’S OPPOSITION TO DEFENDANT’S MOTION FOR SUMMARY JUDGMENT RETURNABLE MARCH 20, 2017 Submitted by REILLY, JANICZEK, MCDEVITT, HENRICH & CHOLDEN, P.C. Kevon Office Center 2500 McClellan Boulevard, Suite 240 Merchantville, New Jersey 08109 (856) 317-7180 Attorneys for Defendants, Fike Corporation and Suppression Systems Inc. Case 2:13-cv-04069-JMV-MF Document 189 Filed 03/13/17 Page 1 of 19 PageID: 15002 i TABLE OF CONTENTS I. INTRODUCTION……………..……..……………………….……..……...………..…..1 II. STATEMENT OF FACTS………..………………………………..………………....1 III. STANDARD OF REVIEW………..………………………………..………………...2 IV. LEGAL ARGUMENT………..………………………………..………………...........3 a. Sun’s Attempt To Point Out The Alleged Deficiencies Within Defendants’ Filing Is An Attempt To Divert The Court’s Attention…………………………………..3 b. Sun’s Attempt To Cast Itself As A Naive Purchaser Of Explosion Suppression Equipment Is Factually Unsupported……………………………………………...4 c. Sun’s Argument That The Fike System Constitutes Merchandise Under The CFA Is Without Merit………………………………………………………….……..…9 d. Sun’s Convoluted Theory Does Not Remove This Case From The Control Of The NJPLA…………………………………………………………………………...11 e. The Information Provided To Sun With Regard To The Component Fike Parts Is Not Misleading…………………………………………………………………..13 f. Sun Waived FM Compliance By The Nature Of Their Actions…………………14 V. CONCLUSION………….…………………………………...………………………15 Case 2:13-cv-04069-JMV-MF Document 189 Filed 03/13/17 Page 2 of 19 PageID: 15003 ii TABLE OF AUTHORITIES CASES Page Bayer AG & Bayer Corp. v. Schein Pharm. 129 F. Supp. 2d 705, 716 (D.N.J. 2001) ………….…………………………………...………..2,3 Dana Transport, Inc. v. Ableco Finance, LLC No. 04-2781, 2005 U.S. Dist. LEXIS 18086, 2000 WL 2000152, at (Aug. 17, 2005) ……...…....2 Danvers Motor Co., Inc. v. Ford Motor Co. No. 02-2197, 2007 U.S. Dist. LEXIS 7262, 2007 WL 419285, at (D. N.J. Jan. 31, 2007)…….....2 Dreier Co. v. Unitronix Corp. 218 N.J. Super. 260, 527 A.2d 875, 878 (Super. Ct. App. Div. 1986) …………...……….…10,11 Elizabethtown Water Co. v. Hartford Casualty Ins. Co. 998 F. Supp. 447, 458 (D.N.J. 1998) ………….…………………………………...……..………2 Hundred E. Credit Corp. v. Eric Schuster Corp. 212 N.J. Super. 350, 515 A.2d 246 (Super. Ct. App. Div. 1986) …………………...…..………..9 Laborers' Int'l Union v. Foster Wheeler Energy 26 F.3d 375, 398 (3d Cir.1994) ………….…………………………………...………...…………3 New Hope Pipe Liners, LLC v. Composites One, LCC No. 09-3222, 2009 U.S. Dist. LEXIS 111217 (D.N.J. Nov. 25, 2009) ………...……………….12 Princeton Healthcare System v. Netsmart New York, Inc. 422 N.J. Super. 467, 472 (App. Div. 2011)) ………….……………………………...……...……8 Santiago v. City of Vineland 107 F. Supp. 2d 512, 553 (D.N.J. 2000)) ………….…………………………………...…………3 Simmons v. City of Philadelphia 947 F.2d 1042, 1066 (3d Cir. 1991)) ………….………………………………….....……………3 Stockroom, Inc. v. Dydacomp Dev. Corp. 941 F. Supp. 2d 537 (D.N.J. 2013) ………….………………………………….....……………7,8 OTHER AUTHORITIES N.J.S.A. 56:8-2, et seq. ………….…………………………………...……………………………2 L.Civ.R. 7.1(d)….……………………………………………………………….………………...2 Case 2:13-cv-04069-JMV-MF Document 189 Filed 03/13/17 Page 3 of 19 PageID: 15004 1 I. INTRODUCTION Defendants, Fike Corporation and Suppression Systems Incorporated (hereinafter referred to as “Fike/SSI” and/or “Defendant”) submit this Reply to Plaintiff’s Memorandum of Law in Opposition to Defendants’ Motion for Summary Judgment. (Dkt. 180). Defendants incorporate by reference the Preliminary Statement submitted in Defendants’ Motion for Summary Judgment (Dkt. 167-2). Plaintiff’s opposition fails to defeat the arguments put forth in Defendants’ Motion for Summary Judgment. As is their custom, Plaintiff misconstrues the facts, misrepresents the law and generally fails to provide any true candor within its filing. II. STATEMENT OF FACTS Defendants rely on the Statement of Facts submitted with its Motion for Summary Judgment. (Dkt. 167-1). Defendants also incorporate by reference the Counterstatement of Facts submitted in Opposition to Plaintiff’s Motion for Summary Judgment. (Dkt. 183-1). Defendants do not wish to reiterate the facts and consume the Court’s time unnecessarily, however, Defendants believe it necessary to clarify Plaintiff’s misrepresentations contained in its opposition. Plaintiff submits that Defendants have not updated their arguments beyond that which was argued in its Second Amended Motion to Dismiss (Dkt. 31). This is completely without merit as Defendants clearly and unequivocally have proven that Plaintiff’s claims must fail as a matter of law based on the incontrovertible facts adduced during discovery. Plaintiff repeatedly refers to the holding Judge Hochberg issued in this matter in response to Defendants’ Second Amended Motion to Dismiss (Dkt. 31). The standard for a Motion to Dismiss at the pleading stage is very different from a Summary Judgment Motion. Defendants deny that they simply reiterate their arguments made in the Second Amended Motion to Dismiss. Case 2:13-cv-04069-JMV-MF Document 189 Filed 03/13/17 Page 4 of 19 PageID: 15005 2 Defendants have maintained throughout the life of this litigation that the New Jersey Consumer Fraud Act, N.J.S.A. 56:8-2, et seq. (“CFA”), is not applicable to Plaintiff’s alleged . That position has never changed. Judge Hochberg, in reviewing the facts, found at the pleading stage of the litigation that “Plaintiffs do not allege that Defendant’s product was flawed or defective; that Defendant failed to warn Plaintiff regarding a particular danger; or that Defendant’s product was improperly designed.” (Dkt. 71 at p. 8). However, the facts discovered through this litigation obliterated Plaintiff’s initial theory. Plaintiff’s nascent “alarm theory” contains a failure to warn claim as well as a claim that Defendants’ product was “flawed.” Judge Hochberg stated clearly “… discovery may reveal that the real issue is a ‘defect inherent in the product,’ rather than Defendants’ alleged representations regarding the product. As such, whether Plaintiff’s claim is for “harm caused by a product” will be tested at summary judgment.” Id. at 9. Judge Hochberg’s scenario has now come to pass and this case is ripe for Summary Judgment. III. STANDARD OF REVIEW The law is clear that reply briefs should respond to arguments raised in the opposition brief, or explain a position in the initial brief that the respondent has refuted. Bayer AG & Bayer Corp. v. Schein Pharm., 129 F. Supp. 2d 705, 716 (D.N.J. 2001) (citing Elizabethtown Water Co. v. Hartford Casualty Ins. Co., 998 F. Supp. 447, 458 (D.N.J. 1998)); Danvers Motor Co., Inc. v. Ford Motor Co., No. 02-2197, 2007 U.S. Dist. LEXIS 7262, 2007 WL 419285, at *5 (D. N.J. Jan. 31, 2007); Dana Transport, Inc. v. Ableco Finance, LLC, No. 04-2781, 2005 U.S. Dist. LEXIS 18086, 2000 WL 2000152, at *6 (Aug. 17, 2005). This limitation on the scope of a reply is in place because the local rules do not permit sur-reply briefs. See L.Civ.R. 7.1(d). Therefore, the party opposing a motion does not have the opportunity to respond to any newly minted Case 2:13-cv-04069-JMV-MF Document 189 Filed 03/13/17 Page 5 of 19 PageID: 15006 3 arguments in a reply. Bayer AG & Bayer Corp. v. Schein Pharm., 129 F. Supp. 2d 705, 716 (D.N.J. 2001) (citing Santiago v. City of Vineland, 107 F. Supp. 2d 512, 553 (D.N.J. 2000)). Moreover, in order to respond to an issue first presented in an opening brief, its initial discussion must have amounted to more than a "passing reference.” See Laborers' Int'l Union v. Foster Wheeler Energy, 26 F.3d 375, 398 (3d Cir.1994) (quoting Simmons v. City of Philadelphia, 947 F.2d 1042, 1066 (3d Cir. 1991)).” As is more fully addressed in the following sections of the reply, Plaintiff’s opposition misapplies the law and facts of this case and misconstrues Defendants’ arguments. For the reasons previously set forth in Defendants’ Motion for Summary Judgment as well as the reasons set forth in Defendants’ Opposition to Plaintiff’s Motion for Summary Judgment (Dkt. 183), Defendants’ Motion for Summary Judgment should be granted and Plaintiff’s case should be dismissed. IV. LEGAL ARGUMENT a. Sun’s Attempt To Point Out The Alleged Deficiencies Within Defendants’ Filing Is An Attempt To Divert The Court’s Attention Sun’s desperate attempt to divert the Court’s attention in this matter, by pointing out its contention that Defendants improperly referred to exhibits, exemplifies Plaintiff’s conduct throughout this litigation. Plaintiff continually focuses on the minutia and fails to focus on the actual issues in the case. Plaintiff lacks any cogent or persuasive arguments and it therefore must focus on issues of form over substance. Defendants believe it important to bring to the Court’s attention the legal issues which bear weight and merit in this case and, therefore, submit arguments to reflect the same. Defendants in no way intend to ignore the Court’s Orders or “insult the Court’s procedures.” Case 2:13-cv-04069-JMV-MF Document 189 Filed 03/13/17 Page 6 of 19 PageID: 15007 4 b. Sun’s Attempt To Cast Itself As A Naive Purchaser Of Explosion Suppression Equipment Is Factually Unsupported Sun spends an inordinate amount of time attempting to convince the Court that it is a “consumer” as defined by the CFA. Sun attempts to paint itself as an unsophisticated buyer of the equipment necessary to design this dust collector. The facts of this case show otherwise. Sun’s lead engineer, Robert Scheer, testified that he had installed at least five dust collectors during his career. Specifically, Mr. Scheer testified as follows: A. I have installed one, two, three, four, five, possibly, more, dust collectors I had them installed. Q. Five dust collectors over your career? A. Yes. (See deposition testimony of Robert Scheer attached as Exhibit “N” to Defendants’ Motion for Summary Judgment at 83:15-20) (Dkt. 167-18). He also indicated he was an active participant in the design and implantation of this dust collector and suppression isolation system. Sun’s corporate designee, Gary Andrzejewski, identified Richard Blake as an in-house expert. (See deposition testimony of Gary Andrzejewski attached hereto as Exhibit “A” at 248:9-17). Additionally, in a series of emails beginning March 24, 2011, Richard Blake begins a back and forth email chain with four Sun engineers and SSI representative Lon Scholl. (This email is attached to Defendant’s Motion for Summary Judgment at Exhibit “E”). (Dkt. 167-9). A few excerpts from the email chain will provide the Court with the clarity needed to determine that Sun was sophisticated in the area of dust collectors and suppression systems. Mr. Blake proposed two hypothetical situations to Lon Scholl discussing the raw material for the dust collector demonstrating his knowledge of the Fike equipment. Id. Mr. Blake’s submission included Pst, Pmax and ST-2 figures. Id. Mr. Blake also indicated to the team of Case 2:13-cv-04069-JMV-MF Document 189 Filed 03/13/17 Page 7 of 19 PageID: 15008 5 Sun engineers his understanding of the suppression system needed for the dust collector. Id. Mr. Blake stated the following: As a company, we ARE familiar with deflagration suppression systems--utilized in place of venting in some instances. I asked Mr. Scholl to work with UAS to present options for suppression RATHER than venting for this baghouse. Then we can compare 2 protective devices. Big advantage of chemical suppression is that there is not a dust and fireball release to the rooftop or surrounds. It stops the deflagration in its tracks, and the collector can be returned to service after investigating the source and refilling the chemical suppressant (bicarb of soda). Mr. Scheer’s response to Mr. Blake’s submission is extensive and replete with an understanding of the systems to be designed. Id. At the time, Sun was considering three separate projects involving dust collector and the suppression devices. Id. The experience level of Mr. Scheer with respect to dust collectors and suppression equipment is further demonstrated by his April 13, 2015 correspondence to the U.S. Chemical Safety Board (“CSB.”) (A copy of the April 13, 2015 correspondence is attached as Exhibit “B” and was produced in discovery in the Caddell v. UAS, et al. case, Docket No. MID-L-5532-14, and marked as Exhibit 12 at the deposition of Luis Toscano in the present case). Mr. Scheer in his letter, after receiving a copy of the CSB report, counters the factual assertions and assumptions made by the CSB. 1 Within the correspondence, Mr. Scheer illustrates his extensive knowledge of dust collectors and, particularly in paragraph 5, reveals his understanding of the Fike suppression equipment used in the dust collector: 1 This reference is not a recitation or adoption of the recommendations of the CSB, but merely used to demonstrate the breadth of Mr. Scheer’s knowledge of the Fike products. Reference to CSB findings have been redacted. Case 2:13-cv-04069-JMV-MF Document 189 Filed 03/13/17 Page 8 of 19 PageID: 15009 6 5. The numbers given to Fike were 299 bars/sec. and generate 9 psi gauge pressure maximum. A bar = 14.7 psi and 9 psi = 0.61 bar. For it to develop its maximum pressure it would take 0.0023 seconds. Assuming there was an explosion in the dust collector that sent a fire ball into the room and caused class III-B material to fall from the structure in the room that caused a second explosion, it would be all over with within 0.05 seconds. Not minutes as required to assemble the eight people in a hallway that were injured by the explosion and obtain a fire extinguisher. It is undisputed by all parties that Robert Scheer was the lead engineer on the dust collector project and after review by Sun’s engineering team and its consultant, Global Risk Consultants (“GRC”), selected the equipment Sun chose to use for suppression. Based on the extent of Mr. Scheer’s experience and awareness of the products in this case, it is clear that Sun was not the “naïve” consumer it currently portrays itself to be. Sun’s “unsophisticated consumer” position is logically unsupportable. Plaintiff’s position is based on the irreconcilable portrayal of the company as inexperienced regarding the equipment they engineered into their process system and that they should be considered an unsophisticated “consumer. Yet, paradoxically, Sun posits it was knowledgeable enough about the application of NFPA 69 and FM approvals and that the mention of “alarm” within these standards was a misrepresentation to them by virtue of the application of, and implications raised by, these standards. There is no language about the alarm function directly anywhere in the marketing material Plaintiff cites. Sun’s experts extrapolate three separate industry standards in order to construct their tortuous argument, ultimately using the audibility criteria for building- wide fire alarms for the 1 ½ by 1 inch Fike buzzer/alarm indicators. To be misled is an active concept, not one conceived after the fact. A reader must knowledgeably extrapolate and refer by adoption to a number of standards to find the misrepresentation Plaintiff claims regarding the alarm’s auditory level. If only the truly Case 2:13-cv-04069-JMV-MF Document 189 Filed 03/13/17 Page 9 of 19 PageID: 15010 7 sophisticated purchaser could read the standard and, even arguably, be misled, Plaintiff cannot logically claim a lack of sophistication. The very act of performing the sophisticated analysis Plaintiff says was necessary to arrive at the conclusion that they were misled, i.e. that the alarm was or could be a “fire alarm,” exemplifies a breadth of knowledge and sophistication that removes the plaintiff from any legitimate claim that it is a naive “consumer” under the CFA. Moreover, Sun’s arguments in support of its assertion that it is a “person” under the CFA directly contradict its arguments that the product in this case is “off the shelf” consumer “merchandise”. On the one hand, Sun claims a lack of sophistication and knowledge regarding the system, the equipment or the ability of its engineers to understand it. Alternatively, it claims that this product is such a “standard,” non-specialized or customized piece of equipment that it was the type “sold to the general public”. It compares this accessory designed with particularized variables to retail goods. Fike does not mass produce explosion protection systems and they are not generally purchased by the public. Dr. Murphy testified the equipment is “industrial equipment,” generally sold, as here, to persons operating manufacturing processes, not to persons for residential or, even generally commercial purposes. See deposition transcript of Dr. Murphy attached to Defendants’ Motion for Summary Judgment at Exhibit “BB” at 314:20—315-8 (Dkt. 167-32). The Fike equipment is sold to consumers in a specialized industry who need to protect facilities from explosion, not the general public. Plaintiff points to Stockroom, Inc. v. Dydacomp Development Corp., 941 F. Supp. 2d 537 (D.N.J. 2013) in support of its position when, in fact, the case illustrates why the CFA is not applicable to the present matter. In Stockroom, the plaintiff was a retailer of adult-themed products and clothing. Defendant was a software company that sold an order processing system Case 2:13-cv-04069-JMV-MF Document 189 Filed 03/13/17 Page 10 of 19 PageID: 15011 8 for online merchants to plaintiff. In deciding the CFA applied based on the facts before it, the Court noted that the plaintiff was a retailer whose business was wholly unrelated to computer software and programming. Id. at 544. The Court determined that, based on their lack of knowledge regarding the goods and system purchased, the plaintiff was as vulnerable as a private individual. Id. The Court in Stockroom specifically noted the differences between the Stockroom case and Princeton Healthcare System v. Netsmart New York, Inc., 422 N.J. Super. 467, 472 (App. Div. 2011)) (where the Court found that the CFA was not applicable). The Court explained that plaintiff in Stockroom was not assisted by a computer consultant and there were no proposals exchanged that contained detailed specifications. Stockroom at 544. The contract terms, moreover, were not negotiated over several years and there were no consultants actively participating in the negotiations. Id. Unlike the current case, Stockroom involved a form contract. Id. The computer software that was purchased by Stockroom was standardized and not a complex and highly-customized system. Id. The Court explained that if multiple proposals were exchanged and if the negotiations between the parties spanned several years then the CFA would not apply. Id. at 545. The current matter is both distinguishable from Stockroom and analogous to Princeton Healthcare (explained more fully in Defendants’ Motion for Summary Judgment). (Dkt. 167-2). Sun ordered a specified product for a system it was engineering. Sun communicated its requirements, multiple proposals were exchanged, and Sun employees engineered the integration of the Fike equipment. Despite the failures in their execution of the required engineering and the other issues regarding their performance, Plaintiff maintained control of the integration of the system going so far as to use outside consultants to review the decisions and engineering designs. Case 2:13-cv-04069-JMV-MF Document 189 Filed 03/13/17 Page 11 of 19 PageID: 15012 9 Further, Sun also states broadly that Defendants’ argument stating that Sun is a “sophisticated purchaser” must be rejected due to the holding in Hundred E. Credit Corp. v. Eric Schuster Corp., 212 N.J. Super. 350, 515 A.2d 246 (Super. Ct. App. Div. 1986). It is true that the Court in Hundred E. Credit expanded the meaning of the term “consumer” under the NJCFA to include business entities. Id. However, the Court further explained that “[I]t may well be, of course, that certain practices unlawful in a sale of personal goods to an individual consumer would not be held unlawful in a transaction between particular business entities; the Act largely permits the meaning … to be determined on a case-by-case basis.” Id. at 357. Based on the foregoing arguments, Sun is a sophisticated buyer. Sun was not inexperienced with dust collectors and explosion suppression and isolation systems. In fact, Sun was working on designing dust collectors in three other facilities. Sun cannot legitimately claim protections under the CFA by stating that it was an inexperienced, naive, business entity that was uninformed in the transaction between itself and Defendants and, thus, qualified as a victimized business entity. Sun’s own engineers state that Sun as a company “IS” familiar with dust collection systems. Sun had an engineering division to undertake precisely the type of process engineering that was being undertaken by its engineers in this case including its own expert (Blake) and outside consultants (GRC). So while “business entities” may not per se be excluded under the CFA, sophisticated entities are not included in its scope. c. Sun’s Argument That The Fike System Constitutes Merchandise Under The CFA Is Without Merit Sun’s argument that the Fike suppression equipment is “merchandise” under the CFA is without merit or support from the facts in this case. Sun oversimplifies the design system and implementation of the Fike equipment into the dust collection system. Sun cites to “Attachment A” to support its argument that the Fike suppression equipment was “standard.” However, while Case 2:13-cv-04069-JMV-MF Document 189 Filed 03/13/17 Page 12 of 19 PageID: 15013 10 the parameters in Attachment A lay out a range of acceptable limits, it does not take away from the reality that the engineering and design parameters for the explosion suppression equipment is customized as per the requirements of the customer. The equipment cannot be integrated into a larger system without additional specific information from the customer. Even assuming these are “standard” parameters, this product is not mass produced or sold “off the shelf” to the general public. The integration of the equipment into the larger confines of a process system results in specialized equipment designed using a customers’ specific parameters. Plaintiff also makes the argument that FM approval in some way standardizes the equipment at issue in this case. The fact that FM examined and approved component parts, hardly makes them standardized when the component parts are integrated into a system as complex as Sun’s dust collector system. The plethora of emails between Sun personnel and SSI in the consideration of placement of the Fike suppression equipment belies Sun’s attempt to minimize the negotiations. Additionally, Sun interacted directly with SSI with regard to its requirements for the equipment to be integrated into the dust collector system. Sun’s dust collector system was unique. The dust collector it obtained to install in the US Ink plant was also unique, therefore, component parts provided by Fike to this system are equally unique. Sun wholly mischaracterizes the Court’s decision in Dreier Co. v. Unitronix Corp., 218 N.J. Super. 260, 527 A.2d 875, 878 (Super. Ct. App. Div. 1986). In Dreier, the Defendants alleged that “the Consumer Fraud Act did not apply to the transaction because plaintiff was not a ‘consumer’…” Id. The Court ultimately found that under the specific circumstances of that case, Plaintiff was a consumer and therefore afforded protection under the CFA. Id. However, Plaintiff used the Dreier decision to allege that even if the “Fike system was somehow customized … this does not foreclose Sun’s ability to bring this CFA action.” (See Plaintiff’s Brief in Opposition to Case 2:13-cv-04069-JMV-MF Document 189 Filed 03/13/17 Page 13 of 19 PageID: 15014 11 Defendants’ Motion for Summary Judgment at Dkt. 180). The court in Dreier only held that the CFA applied because the Plaintiff was considered a consumer, the Court did not address whether or not it mattered that the computer system was “customized.” Id. The holding in this case is irrelevant for the purposes that Sun is attempting to use it. The Court did not once address the applicability of the CFA due to the type of merchandise that was purchased. Any holding from this case that is used by Sun to attempt to persuade this Court to believe that customized merchandise is protected under the CFA is inapplicable and a gross mischaracterization of the law. An Explosion Protection System is not an “off the rack” product. d. Sun’s Convoluted Theory Does Not Remove This Case From The Control Of The NJPLA In its attempt to take this matter outside the control of the PLA, Sun asserts a convoluted theory that Fike’s equipment did not provide the results Fike promised it would. The information submitted on behalf of Fike and SSI to Sun indicates that the protection provided by the explosion suppression equipment was for the dust collector only. (See Exhibit “C”). It is undisputed that there was no deflagration in the dust collector. Plaintiff’s attempt to argue that “once the deflagration commenced, the Fike system should have suppressed and isolated it.” (See p. 24 of Dkt. 180). This theory, however, fails to acknowledge that the equipment protected by the Fike suppression was the dust collector only. Sun chose to limit the area of the building it protected and now seeks to shift responsibility for doing so onto its vendors. The deflagration never occurred within the dust collector and, therefore, Plaintiff’s theory is misplaced. Plaintiff’s interpretation of the scope of the PLA renders it inapplicable in almost all scenarios. Preemption does not mean election. Artful framing of an issue does not make a “product” based case into a “representation” based case. The PLA is, by its stated purpose, to function as the means for recovery whenever a claim is made for injury from a product. Case 2:13-cv-04069-JMV-MF Document 189 Filed 03/13/17 Page 14 of 19 PageID: 15015 12 Plaintiff’s “alarm theory” is a product based theory. Plaintiff only presents evidence that it never sounded. If it failed to function, as Plaintiff posits, then this is a claim based on the alleged failure of a product. Plaintiff suggests the alarm worked, but was not sufficient in producing sound. Plaintiff’s experts do not review the auditory capability of the 1x1 ½ inch speaker when purchased. Sun fails to provide any reason to believe that the buzzer worked but was too faint to be heard versus never sounded at all. In an attempt to avoid PLA preemption, Plaintiff’s experts attempt to carefully avoid the product related issues by never addressing the auditory capacity of the design of the buzzer or the potential that it never functioned at all. Such manipulation does not fundamentally change what the Court must address, i.e. whether there was a failure in the design or functioning of the product. Therefore, this product centered claim is preempted by the PLA. Sun cites to New Hope Pipe Liners LLC v. Composites One, LLC, No. 09-3222, 2009 U.S. Dist. LEXIS 111217 (D.N.J. Nov. 25, 2009), to attempt to discredit Fike’s interpretation of the PLA and argue that the PLA subsumption has limitations. The New Hope court, in fact, stated: … when deciding whether or not the PLA has subsumed a particular claim courts does not simply determine whether or not the victim’s injury was literally “caused by a product.” Instead, courts tend to look at the essence of the claims and decide whether plaintiff is disguising what would traditionally be considered a products liability claim as an alternative cause of action. (citations omitted). The court further stated, “If the facts of a case suggest that the claim is about defective manufacture, flawed product design, or failure to give an adequate warning, then the PLA governs and the other claims are subsumed.” Id. at 8. Sun’s claims deal directly with “defective Case 2:13-cv-04069-JMV-MF Document 189 Filed 03/13/17 Page 15 of 19 PageID: 15016 13 manufacture, flawed product design or a failure to give adequate warning” and are subsumed by the PLA. e. The Information Provided To Sun with Regard To The Component Fike Parts Is Not Misleading The information Defendants provided was clear in its intent. As the multiple proposals submitted indicate, the dust collector unit was the sole equipment to be protected by the Fike suppression equipment. (See Exhibit “M” attached to Defendants’ Motion for Summary Judgment at Dkt. 167-17). As the Fike Bulletin and Fike Profile drawings and manuals indicate, the explosion suppression equipment is meant to protect a dust collector only. See Defendants’ Motion for Summary (Dkt. 167) and Defendants’ Opposition to Plaintiff’s Motion for Summary Judgment (Dkt. 183). Plaintiff attempts to make the argument that the statements made in the Defendants’ marketing materials were specific and meant to convey product details to Sun. This argument fails by virtue of the fact that the Fike marketing materials were provided for a general overview of dust collection suppression. Plaintiff fails to cite to the “Explosion Protection Application Profile” provided to Sun. On the first page of the application profile, the following language is present: The purpose of this application guide is to provide an understanding of the possible explosion hazards, and protection strategies for dust collection systems. This document is intended to be a guideline and is not applicable to all situations. If you have any questions, please contact the Fike Explosion Protection Group, or our sales representative in your area. (See Exhibit “P” to Defendants’ Motion for Summary Judgment at Dkt. 167-20). Thus, the Application Profile did not specifically address Sun’s equipment. The language of this profile makes it clear that Fike’s marketing materials are meant for general reference only. Case 2:13-cv-04069-JMV-MF Document 189 Filed 03/13/17 Page 16 of 19 PageID: 15017 14 To be a misrepresentation there must be a lack of understanding created or related to a sale. Feigned lack of knowledge or understanding contrived after the fact by attorneys or corporate executives does not create a misrepresentation and does not make an action centered on the performance of a product into a representation based claim. Bob Scheer did not claim any misunderstanding of the Fike materials upon which Sun now relies in support of its misrepresentation arguments. (See Exhibit “N” to Defendants’ Motion for Summary Judgment at Dkt. 167-18). f. Sun Waived FM Compliance By The Nature Of Their Actions Plaintiff incredibly argues that it did not waive the FM compliance with regard to this equipment. The facts in this matter clearly establish the opposite. As is more fully briefed in Defendants’ Opposition to Plaintiff’s Motion for Summary Judgment (Dkt. 183), Sun waived FM compliance of the Fike equipment because it instructed Fike to provide only one sensor. In a March 30, 2012 proposal, Fike proposed two sensors with the equipment. (See Exhibit “C”). Sun considered two sensors and even sought advice from GRC with regard to the second sensor. In fact, the second sensor was proposed to William J. Gotto of GRC as to whether it was necessary. (See February 21, 2012 email attached as Exhibit “C”). GRC was serving as an insurance analyst with regard to the risks involved in Sun’s decision to design a dust collection system. In the February 21, 2012 email chain, Mr. Gotto and Mr. Scheer discussed the need for a second sensor to be installed on the equipment. Id. Initially, GRC inquired: FM requires two CEREX pressure detectors. No other agency requires this duplication and is nominally not installed in a system this small per Lon Scholl of Fike. Can we install just one CEREX pressure detector to keep costs down? Id. Case 2:13-cv-04069-JMV-MF Document 189 Filed 03/13/17 Page 17 of 19 PageID: 15018 15 Following that email, the recommendation from GRC on April 2, 2012 was “1 pressure detector should be sufficient.” Mr. Gotto agreed with these recommendations and forwarded them to Sun which implemented deleting the second sensor. Further, in his deposition testimony in Caddell v. UAS, et al., Mr. Gotto was questioned with regard to the conversations about the email surrounding the removal of the second sensor. Mr. Gotto testified: There was a subsequent e-mail that you're aware of where Mr. Scheer requested the removal of a particular device [sensor]. Gary [Weil] and I did have a conversation about that as well, and it was documented in my e-mail response that removing that device was - - was acceptable. (See Exhibit “E” deposition transcript of Gotto at 210:14-2). Mr. Gotto was aware that by removal of the device it would leave the equipment non- compliant with FM. What follows is the colloquy with regard to FM compliance: Q. And did you think the removal of that device complied with FM and NFPA standards? A. We were aware that the -- there was disparity between the two recognized standards, and as such, we felt that we were both comfortable that the device was not necessary. (See Exhibit “E” at 211:6-11). It is undisputed that the position with regard to removing the second sensor was completely Sun’s directive with its full knowledge that to do so would render the equipment non- compliant with FM. Therefore, Plaintiff’s argument with regard to FM compliance and misrepresentation is contrary to the facts. V. CONCLUSION Defendants reiterate the arguments contained within its Motion for Summary Judgment as well as those objections to Plaintiff’s Motion for Summary Judgment as if fully set forth Case 2:13-cv-04069-JMV-MF Document 189 Filed 03/13/17 Page 18 of 19 PageID: 15019 16 herein. The issues in this case are clear and undeniable. Sun cannot sustain its claims under the CFA as it is clearly a sophisticated buyer purchasing a customized piece of equipment thereby taking this case outside the parameters of the CFA. This case is a products liability case subsumed by the PLA and as such should be dismissed as Plaintiff failed to allege such a violation. Respectfully submitted, REILLY, JANICZEK, MCDEVITT, HENRICH & CHOLDEN, P.C. By: /s/ Gino P. Mecoli Gino P. Mecoli, Esquire Suzanne I. Turpin, Esquire Attorneys for Defendants, Fike Corporation and Suppression Systems Inc. Dated: March 13, 2017 Case 2:13-cv-04069-JMV-MF Document 189 Filed 03/13/17 Page 19 of 19 PageID: 15020 1 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW JERSEY REILLY, JANICZEK, MCDEVITT, HENRICH & CHOLDEN, P.C. Kevon Office Center 2500 McClellan Boulevard, Suite 240 Merchantville, New Jersey 08109 (856) 317-7180 Attorneys for Defendants, Fike Corporation and Suppression Systems Inc. SUN CHEMICAL CORPORATION, PLAINTIFF, vs. FIKE CORPORATION and SUPPRESSION SYSTEMS INCORPORATED, DEFENDANTS. Civil Action No. 2:13-cv-04069-JMV-MF DEFENDANTS, FIKE CORPORATION AND SUPPRESSION SYSTEMS INC.’S, RESPONSE TO PLAINTIFF’S SUPPLEMENTAL STATEMENT PURSUANT TO L.CIV.R.56.1 IN OPPOSITION TO DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT Defendants, Fike Corporation and Suppression Systems Inc. (hereinafter referred to as “Fike and “SSI”), by and through its undersigned attorneys, pursuant to L.Civ.R. 56.1, submits this Response to Plaintiff’s Supplemental Statement Pursuant to L.Civ.R. 56.1 (“Supplemental Statement”). Defendants object to Plaintiff’s submission of its Supplemental Statement because despite Plaintiff’s explicit representation to the contrary, it is not compliant with L.Civ. R. 56. A review of Plaintiff’s Supplemental Statement reveals that it is a mere recitation of facts already laid out in the Statement of Undisputed Facts in Support of its Motion for Summary Judgment. This is made obvious by Plaintiff’s repeated reference to its Case 2:13-cv-04069-JMV-MF Document 189-1 Filed 03/13/17 Page 1 of 22 PageID: 15021 2 Statement of Undisputed Facts in support of its own Motion for Summary Judgment, Dkt. 168-1, and to the exhibits cited therein, in place of citations to the record. L. Civ. R. 56 states in relevant part: The opponent of summary judgment shall furnish, with its opposition papers, a responsive statement of material facts, addressing each paragraph of the movant's statement, indicating agreement or disagreement and, if not agreed, stating each material fact in dispute and citing to the affidavits and other documents submitted in connection with the motion; any material fact not disputed shall be deemed undisputed for purposes of the summary judgment motion. In addition, the opponent may also furnish a supplemental statement of disputed material facts, in separately numbered paragraphs citing to the affidavits and other document submitted in connection with the motion, if necessary to substantiate the factual basis for opposition. Therefore, under the Rule, a party opposing a Motion for Summary Judgment may submit disputed material facts in support of its opposition. Here, Sun is plainly asserting what it considers to be undisputed facts, since these very same facts were previously set forth in its “Statement of Undisputed Facts” under Dkt. 168-1. Plaintiff does not have authority to file its Supplemental Statement under the Local Civil Rules for the District of New Jersey. As such, the Supplemental Statement does not warrant the Court’s consideration. However, to the extent that the Court considers the assertions therein, Defendants respectfully request that the Court consider the responses herein. Finally, Defendants’ explanation and clarification of Plaintiff’s many misstatements are not meant to suggest questions of fact exist in this case. Defendants maintain their arguments set forth in Defendants’ Summary Judgment Motion previously filed as if set forth at length herein. (Dkt. 167). However, in order to fully brief the Court with accurate information, Defendants feel it necessary to expand, clarify and Case 2:13-cv-04069-JMV-MF Document 189-1 Filed 03/13/17 Page 2 of 22 PageID: 15022 3 correct Plaintiff’s assertions and refer to existing facts within the case to provide the Court with a clear picture of the issues present and pertinent in this matter. 1. Admitted with qualification. SSI was not retained to provide fire protection solutions for the project at issue in this case. (Please see Dkt. 183-1 at para. 6). 1 2. Admitted with qualification. SSI was not retained in its capacity as a Fire Protection Equipment Contractor for the project at issue in this case, nor did it provide services as a fire contractor. (Please see Dkt. 183-1 at para. 7). 3. Admitted that Fike sells these types of equipment. However, only Explosion Suppression Equipment protecting a dust collector is implicated in this matter as it is the only equipment Fike chose to install at its East Rutherford ink manufacturing facility. 4. Admitted with qualification. Although Sun portrays its impetus for installing a new dust collection system for its workers’ safety, Robert Scheer, in his deposition, explained that the dust collection system was necessary due to a failure of the “scrubber” system that was in place at the US Ink facility. (Please see Dkt. 183-1 at para. 10; Exhibit “G” referenced therein at 161:11-18, 164:1-11, 271:3-17). 5. Admitted with qualification. Please see response to para. 4. 6. Admitted with qualification. Please see response to para. 4. 7. Admitted with qualification. Although it appears from the February 11, 2011 1 Since the majority of the assertions in Plaintiff’s Supplemental Statement correspond to various paragraphs within its Statement of Undisputed Facts in support of its Motion for Summary Judgment, Defendants will respond to same by directing the Court’s attention to the corresponding responses set forth within their Counterstatement of Undisputed Facts in Opposition to Plaintiff’s Motion for Summary Judgment at Dkt. 183-1 For ease of the Court’s reference, Defendants will reassert these responses in full herein. Case 2:13-cv-04069-JMV-MF Document 189-1 Filed 03/13/17 Page 3 of 22 PageID: 15023 4 email, cited by Sun, that Sun was concerned with flames blowing back into the duct from the baghouse, multiple proposals submitted by SSI clearly identify that the equipment protected by the Fike explosion suppression equipment is the dust collector only. Additionally, Sun’s lead engineer, Robert Scheer, testified that it was Sun’s understanding that the Fike explosion suppression equipment was in place to protect the dust collector. Even after the incident, Sun’s engineer provided a statement to the CSB that the Fike product provided protection only to the dust collector unit. (Please see Dkt. 183-1 at para. 13, Exhibits “H” & “G” at 235:25-236:3 referenced therein.). 8-9. Denied as stated. It is clear from the proposals submitted by SSI with regard to the project that the protected equipment was intended as the dust collector. See language quoted in para. 8, supra. Moreover, Sun did more than “look into” the means and methods outlined by early literature provided to it, Sun’s engineering team assigned to the East Rutherford project (including Chris McCollum, Robert Scheer, Scott DeMonte and Sun’s in house expert, Richard Blake) consulted with other engineers at Sun (Rick Minner, Kurt Scott, Brian Panzyk and Paul Dudley) who were evaluating all dust collectors at Sun sites nationwide. Sun additionally sought review, advice and approval from Global Risk Consultants (GRC) and outside experts retained by Sun. GRC, represented by William Gotto, reviewed the plans for isolation and suppression provided by Sun specifically providing advice, oversight and approval for plan changes proposed by the lead design engineer, Robert Scheer. Gotto approved the removal of the second pressure detector and the admonition to connect the system to the existing building wide Case 2:13-cv-04069-JMV-MF Document 189-1 Filed 03/13/17 Page 4 of 22 PageID: 15024 5 fire alarm. He testified as follows: Q. The system which you defined which was installed in 2012 at East Rutherford, as part of its review did GRC believe that the Fike SSI system, fire suppression explosion protection system was designed to protect all the interconnected ductwork at the East Rutherford facility associated with the premix ring? . . . A. No. Q. Okay. No, you didn't believe it was designed to protect all the interconnected ductwork based on your review? A. No. Finally, it is specifically denied that the equipment sold by SSI was ever represented to protect all areas of the facility or the ductwork. To the contrary, Sun engineers specifically recognized the potential of “deep seated fires” and resisted “protecting the mixers and the rest of the system.” (Please see Dkt. 183-1 at para. 14, Exhibits “J,” “K” & “L” referenced therein.). 10. Admitted. 11. Admitted with qualification. It is admitted that quotes from SSI were submitted to Sun Chemical through Faber Industries. (Please see copies of additional quotes attached collectively as Exhibit “M” to Dkt. 183-1.) It is further admitted that more unique parameters and specifications were provided directly to SSI from Sun to enable the customization of the Fike explosion suppression equipment. For example, Sun provided to SSI a Pmax value (the measurer of the amount of maximum amount of pressure that is built from an explosion) and a Kst value (a measure of how fast pressure will rise in an enclosed area) as well as the size of the vessel to be protected (the dust collector unit) and the maximum temperatures in order to design the equipment. (Please see Exhibits attached to Dkt. 183-1: Exhibit “G” at 119:7-20; 169:23-25; 170:1-5; Please also see emails bates Case 2:13-cv-04069-JMV-MF Document 189-1 Filed 03/13/17 Page 5 of 22 PageID: 15025 6 stamped SUN00005206-5209, attached as Exhibit “N” ) In an associated email of March 25, 2011, Richard Blake of Sun Chemical identified his opinion to select suppression over other options, by stating “Big advantage of chemical suppression is that there is not a dust and fireball release to the roof-top or surrounds. (sic) It stops the deflagration in its tracks, and the collector can be returned to service after investigating the source and refilling the chemical suppressant (Bicarb of soda).” Id. In his introductory comments to the other Sun engineers assigned to the project, Mr. Blake comments “As a company, we ARE familiar with deflagration suppression systems--utilized in place of venting in some instances.” Id. (Please see Dkt. 183-1 at para. 16). Finally, the Fike equipment is significantly more complex than a customer-oriented product that would be sold retail. Per Sun’s expert, it is “industrial equipment” which must “take into account the particulars of the industrial facility where it’s installed.” (Please see Dkt 183, Exhibit “BB” 312:9- 315:8). 12. Admitted with qualification. NFPA 69 requires using deflagration suppression as a means of hazard management. (Please see Dkt. 183-1 at para. 20). 13. Admitted with qualification. It is admitted that NFPA 69 requires visible and audible alarms, however, the alarms are meant for operator interface and not general occupant evacuation. The “local, visible and audible alarms” are for an operator charged with the responsibility of interfacing with the equipment only. (Please see Dkt. 183-1 at para. 21). Case 2:13-cv-04069-JMV-MF Document 189-1 Filed 03/13/17 Page 6 of 22 PageID: 15026 7 14. Admitted with qualification. It is admitted that NFPA 69 requires visible and audible alarms, however, the alarms are meant for operator interface and not general occupant evacuation. The “local, visible and audible alarms” are for an operator charged with the responsibility of interfacing with the equipment only. (Please see Dkt. 183-1 at para. 21). 15-16. Admitted with qualification. It is admitted that on March 28, 2011 Lon Scholl emailed two attachments, constituting marketing materials to Sun employees. It is inappropriate for Sun to propose a purpose and/or meaning to the advertising materials. The Bulletin, or “Data Sheet” as termed by Plaintiff, provides specifically: The purpose of this application guide is to provide an understanding of the possible explosion hazards, and protection strategies for dust collection systems. This document is intended to be a guideline and is not applicable to all situations. If you have any questions please contact the Fike Explosion Protection Group or our sales representative in your area. (Please see Dkt. 183-1 at para. 25). 17. Admitted with qualification. The documents referred to by Sun are documents that contain language that speaks for itself. The language should be viewed independently in context and no conclusion and/or clarification is necessary or appropriate by Sun. (Please see Dkt. 183-1 at para. 25, and Exhibit “Q” referenced therein). Moreover, the Fike Application Profile referenced by Plaintiff clearly states that The purpose of this application guide is to provide an understanding of the possible explosion hazards, and protection strategies for dust collection systems. This document is intended to be a guideline and is not applicable to all situations. If you have any questions please contact the Fike Explosion Protection Group or our sales representative in your area. Case 2:13-cv-04069-JMV-MF Document 189-1 Filed 03/13/17 Page 7 of 22 PageID: 15027 8 18. Admitted with qualification. The documents referred to by Sun are documents that contain language that speaks for itself. The language should be viewed independently in context and no conclusion and/or clarification is necessary or appropriate by Sun. (Please see Dkt. 183-1 at para. 25, and Exhibit “Q” referenced therein). Moreover, the Fike Application Profile referenced by Plaintiff clearly states that The purpose of this application guide is to provide an understanding of the possible explosion hazards, and protection strategies for dust collection systems. This document is intended to be a guideline and is not applicable to all situations. If you have any questions please contact the Fike Explosion Protection Group or our sales representative in your area. (Please see Dkt. 168-1, Exhibit 15 referenced therein). 19. Admitted with qualification. It is admitted that the information contained in the Fike Bulletin or “Data Sheet” is as stated. However, as Plaintiff repeatedly does, Plaintiff takes the words out of context. The documents are written documents which speak for themselves. Any characterization of said language is inappropriate by Sun. As is more fully explained in the Preliminary Statement in Defendants’ Brief in Support of their Opposition to Plaintiff’s Motion for Summary Judgment, Dkt. 183, the language in the advertising materials submitted by Defendants in no way contradicts the position of Defendants in this matter. (Please see Dkt. 183-1 at para. 27, and Exhibit “R” referenced therein). 20. Admitted with qualification. It is admitted that the information contained in the Fike Bulletin is as stated. However, as Plaintiff repeatedly does, Plaintiff takes the words out of context. The documents are written documents which speak for themselves. Any characterization of said language is inappropriate by Sun. As is Case 2:13-cv-04069-JMV-MF Document 189-1 Filed 03/13/17 Page 8 of 22 PageID: 15028 9 more fully explained in the Preliminary Statement in Defendants’ Brief in Support of their Opposition to Plaintiff’s Motion for Summary Judgment, Dkt. 183, the language in the advertising materials submitted by Defendants in no way contradicts the position of Defendants in this matter. (Please see Dkt. 183-1 at para. 28). 21. Admitted with qualification. It is admitted that the information contained in the Fike Bulletin is as stated. However, as Plaintiff repeatedly does, Plaintiff takes the words out of context. The documents are written documents which speak for themselves. Any characterization of said language is inappropriate by Sun. As is more fully explained in the Preliminary Statement in Defendants’ Brief in Support of their Opposition to Plaintiff’s Motion for Summary Judgment, Dkt. 183, the language in the advertising materials submitted by Defendants in no way contradicts the position of Defendants in this matter. (Please see Dkt. 183-1 at para. 28). 22. Admitted with qualification. There is a distinction between an FM approved product and a system approved by FM. 23. Admitted with qualification. There is a distinction between an FM approved product and a system approved by FM. 24. Admitted with qualification. There is a distinction between an FM approved product and a system approved by FM. 25. Admitted. 26. Admitted Case 2:13-cv-04069-JMV-MF Document 189-1 Filed 03/13/17 Page 9 of 22 PageID: 15029 10 27. Admitted with Qualification. In the referenced testimony, Mr. McClelland explained that the audible alarm function, the Fike Piezo Alarm, is intended to emit a steady tone to alert those in its immediate vicinity of a non-normal event. Please see Dkt. 168-3 at Exhibit “22” at 68:6-21. He specifically stressed that the function is not intended as a building notification system. Id. at 68:20-22. 28-29. Admitted with qualification. Fike admits that the equipment sold to Sun was compliant with FM 5700. In fact, the FM testing report and certification that evaluated the Fike control panel indicated the following: They [the control panels] are equipped with audible and visual alarms, and means for automatic shutdown of customer’s process equipment. Fault detection on actuation and detection circuits is performed for opens, shorts, or ground faults as applicable. Fault detection or activation of the control system results in activation of both audible and visual alarms and shutdown circuits. FM wrote the performance specification for compliance. FM conducted the testing on the control panels. FM produced the report stating that the panels met FM requirements for audible alarms. FM determined the definition of audible alarm within the context of their certification. Therefore, the statement that the equipment was FM compliant is not in dispute. (Please see Dkt. 183-1 at para. 32, Exhibit “P” referenced therein). Moreover, FM requires as a basis for continued approval “satisfactory field experience,” “compliance with terms stipulated in the Approval Agreement,” and “satisfactory re-examination of production samples for continued conformity to requirements,” and “satisfactory Facilities and Procedures Audits” as part of a follow-up program. (See 1999 FM 5700 at §1.5). Despite these follow-up procedures, FM has not retracted FM- Case 2:13-cv-04069-JMV-MF Document 189-1 Filed 03/13/17 Page 10 of 22 PageID: 15030 11 compliance from the Fike equipment at issue. Therefore, the statement that the equipment was FM compliant is not in dispute. 30. Admitted. 31. Admitted with qualification. Although Dr. Murphy may have been able to purchase standard components, these components do not represent the components in this case. Any of the components purchased by Dr. Murphy would not be operational unless integrated into the system as specified by the customer. (Please see Dkt. 183-1 at para. 35). 32. Denied as stated. Plaintiff’s characterization and/or assumption in para. 42 is not a statement of fact and, therefore, Defendants are not able to respond. Defendants do not admit to Plaintiff’s recitation. (Please see Dkt. 183-1 at para. 42). 33. Denied as stated. Plaintiff’s characterization and/or assumption in para. 42 is not a statement of fact and, therefore, Defendants are not able to respond. Defendants do not admit to Plaintiff’s recitation. (Please see Dkt. 183-1 at para. 43). 34. Admitted with qualification. The Faber proposal submitted on April 3, 2012 indicates that the “protected equipment” with regard to the proposal was the “SFC8 UAS Dust Collector Inlet Duct (Chemical Isolation, without option for Suppression).” It is clear from the proposal that the dust collector unit is the only thing protected by the Fike equipment. Additionally, the proposal states: Revision #2 omits the options US Ink does not required from our meeting. Your (addressed to Bob Scheer) request to include the second pressure detection is NOT included in this proposal; therefore this equipment does not be meet FM standards. The proposal goes further to state: Case 2:13-cv-04069-JMV-MF Document 189-1 Filed 03/13/17 Page 11 of 22 PageID: 15031 12 We are offering an isolation and suppression system for the UAS dust collector as requested.” This proposal was accepted by Sun. It is clear from the language of the proposal that the second pressure detection was not included and Sun was advised that the equipment did not meet FM standards. It is further clear from the proposal that the suppression system was meant to protect the dust collector only. (Please see Dkt. 183-1 at para. 45). 35. Admitted with qualification. The equipment was used as an accessory to protect its dust collector unit. (Please see Dkt. 183-1 at para. 47, Exhibit “U” at 112:19-25 referenced therein; see also para. 34, supra). 36-37. Denied as stated. The Fike explosion suppression system proposed to Sun was designed and customized to respond to the requirements submitted by Sun. In fact, on the page of the proposal entitled “QUALIFICATIONS and/or EXCEPTIONS” at #10, it states: The equipment quoted in this proposal is based upon preliminary process information, and may change significantly during the actual design phase of the project. Any change in equipment requirements based upon actual process information or installation parameters may significantly alter the cost of the protection system. Therefore, indicating that the equipment was to be customized based on the information provided by Sun. (Please see Dkt. 183-1 at para. 48). 38. Denied. The parts are not listed as “standard” on the proposals or web page referenced. Plaintiff’s self-serving characterization of these parts as “standard” is entirely its own and completely unfounded. Case 2:13-cv-04069-JMV-MF Document 189-1 Filed 03/13/17 Page 12 of 22 PageID: 15032 13 39. Admitted with qualification. Sun omits from their recitation the March 30, 2012 proposal provided by SSI to United Air Specialist, Inc., the manufacturer of the Dust Collection System. That proposal in fact lists two (2) pressure detectors, but in a handwritten note, the “2” is crossed out and replaced with a “1” leading to the omission of a second pressure detector from the final, April 3 2012 proposal referenced by Sun, which explicitly states Revision #2 omits the options US Ink does not required from our meeting. (sic). Your (addressed to Bob Scheer) request to include the second pressure detection is NOT included in this proposal; therefore this equipment does not be meet FM standards. Thus there was a difference in parts listed in the final two proposals regarding Fike equipment. (Please see Dkt. 183-1 at para. 37, Exhibit “H” referenced therein). 40. Denied. The March 30, 2012 proposal referenced in para. 39, infra, deliberately not referenced by Plaintiff, contains a differing Kst value: 25-300 bar*m/sec, as opposed to 165 bar*m/sec in the final April 3, 2012 proposal. (Please see Dkt. 183-1, Exhibit “H”).Please also see para. 39, infra. 41. Admitted that this language appears in the proposal. Please see para. 39, infra. 42. Admitted with qualification. KST and PMax are only two of the multiple parameters that factor into the design of the suppression equipment, as discusses at paras. 34, 48, and 50. The ability to provide equipment of these ranges stems from the testing of the particular materials and the proprietary information derived from that testing. (Please see Dkt. 183-1 at para. 48; Exhibit “S” referenced therein at 19:20-23). Case 2:13-cv-04069-JMV-MF Document 189-1 Filed 03/13/17 Page 13 of 22 PageID: 15033 14 43. Admitted with qualification. Parameters were required to specifically design the equipment to meet Sun’s needs. Please see Dkt. 183-1, Exhibit “G” referenced therein at 170:3-5 Additionally, the information provided by Sun was incorrect with regard to the maximum operating temperature. Sun indicated the maximum temperature was 210º. On the date of the incident, the temperature rose to 384º, well beyond the flash points of the combustible materials. Please see Dkt. 183-1, Exhibit “V” referenced therein at 100:25-101:6. This incorrect figure significantly contributed to the cause of the accident. (Please see Dkt. 183-1 at para. 50; Exhibits referenced therein). 44. Admitted with qualification. Sun rejected explosion venting to avoid a dust and fireball release to the roof-top of the Facility and surrounding residential area. (Please see paras. 32-33 of Plaintiff’s Supplemental Statement, Dkt. 180-9). 45-46. Denied as stated. Plaintiff fails to disclose the true nature of Mr. Schultz’s testimony. When discussing a hybrid mixture, such as the mixture in this matter, Mr. Schutlz indicated he did not work on the hybrid systems independently. Please see Dkt. 183-1; Exhibit “W” referenced therein at 58:20-22. Mr. Schultz was not provided the list of components or dust prior to designing the system. Id. at 186:16-187:22, 195:5-13, 195:7-11. (Please see Dkt. 183-1 at para. 50; Exhibits referenced therein). 47. Admitted. 48. Admitted 49. Denied. Throughout the course of the negotiations, Sun employed and utilized a plethora of engineers to consider this equipment and its dust collector system as a Case 2:13-cv-04069-JMV-MF Document 189-1 Filed 03/13/17 Page 14 of 22 PageID: 15034 15 whole. In fact, in a March 25, 2011 email, Richard Blake, Sun employee, explained to his colleagues “As a company we ARE familiar with deflagration suppression systems, used in place of venting in some instances.” Mr. Blake goes on to say: I asked Mr. Scholl to work with UAS to present options for suppression RATHER than venting for this baghouse. Then we can compare two protective devices. Big advantage of chemical suppression is that there is not a dust and fireball release to the rooftop or surrounds. It stops the deflagration in its tracks, and the collector can be returned to service after investigating the source and refilling the chemical suppressant (bicarb of soda). These exchanges precede the purchase of the Fike explosion suppression equipment and clearly demonstrate, without question, that Sun was an experienced and sophisticated buyer of this type of equipment. In fact, Sun corporate designee recognized Richard Blake as an expert in dust collection: Q. And Richard Blake? A. Richard Blake is a very, very solid engineer. Would I say that he's an expert, he would probably say no, but he's a solid engineer and he would know how to manage a project. Q. I have to get a clear answer to that. Is he in fact an expert in the design of dust collection systems? A. I would say yes. (Please see Dkt. 183-1 at para. 57, Exhibit “ii” at 248:9-17 referenced therein). Moreover, it consulted other experts at GRC. See also paras. 8-9, supra. (See Dkt. 183-1 at para. 57 and Exhibits referenced therein). 50. Admitted with qualification. Although Fike and SSI fell out of communication, the engineers within Sun continued to discuss the option of explosion suppression as evidenced in the various emails attached hereto and referenced herein. In July Case 2:13-cv-04069-JMV-MF Document 189-1 Filed 03/13/17 Page 15 of 22 PageID: 15035 16 2012 lead engineer Robert Scheer retired and received no further contact regarding the project. Please see Dkt. 183-1 at para. 59, Exhibit “G” at 67:2- 69:18. Ultimately, the equipment was not connected to the building-wide fire alarm as originally directed by William Gotto. See Dkt. 183-1 at para. 59 Exhibit “J.” (Please see Dkt. 183-1 at para. 59; Exhibits referenced therein). 51. Admitted 52. Admitted 53. Admitted with qualification. Defendants hereby submit the following timeline to better educate the Court with regard to the precise timing of the events in this case. Mr. Lindke started-up operations in the Premix room at approximately 11:00 PM October 8 after a long holiday weekend. From the motor amperage data recorded in the PSI data file, Mixer #106 was started up at 23:15 and Mixer #206 at 23:16. They were full of completed mixture awaiting discharge to the next step in the manufacturing process. Mixer #306 was started up at 23:30. The amperage drawn by the mixer motors was essentially constant and the temperature slowly increased to approximately 140 °F. The increase in weight temperature increased to 182 °F and the current load of the motors indicates substantial increase in the viscosity of the mixture. The mixer temperature increased over the next 7 minutes to 200°F. Over the next 5 minutes the temperature increased to 225°F. From 02:27 to 05:28 the temperature increased to as high as 377°F. This is above the flash-point. At 05:28 the recorded temperature decayed over the same time period to approximately 300 °F. At approximately 1:00 PM, Mr. Wright was dumping bags of gilsonite which were to be added to Mixer #306 at the bag dump station, Mixer #206 was receiving a final addition of oil from the bottom after mixing, Mixer #106 was finished and waiting to be pumped out to the ball milling area. As Mr. Wright was finishing dumping the last bag of gilsonite into the bag-dump station he reports hearing a squealing noise that he normally associated with Case 2:13-cv-04069-JMV-MF Document 189-1 Filed 03/13/17 Page 16 of 22 PageID: 15036 17 an overloaded mixer. He reports going to the control room to check the motor amperages. He reports that all the motor current indicators showed normal readings and the noise had ceased. As he began to return to the bag dump station he saw a flash of flame jet out from the bag dump station. He left the area to get Mr. Castro, his supervisor. Other employees report hearing a thud or thump sound that interrupted their normal activity and several proceeded to walk toward the apparent source of the sound. In approximately 1.5 to 2.0 minutes seven employees were gathered at the roll-up door that served as an entry into the Premix room. All report seeing a persisting flame associated with the flexible duct that connected the Mixer #306 to the dust collection system. In fact, US Ink employees testified that they observed the alarm warning lights activated. George Rodriguez went on to alert the other employees about the activation. Please see Dkt. 183-1, Exhibit “gg” referenced therein; Exhibit “dd” at 58:5-60:17; Exhibit “ee” at 165:9-24. Mr. Pernenski told George Rodriguez to pull the fire alarm. Please see deposition testimony of Stanley Pernenski at 42:19-21, attached as exhibit “ff.” Two (2) employees began ascending the stairs along the south wall of the Premix Room with hand-portable fire extinguishers. Mr. Prenenski discharged the ABC Dry Chemical fire extinguisher at the fire from part-way up the south stairs. Either immediately upon the discharge or a second or two later, accounts differ, a large fire ball erupted, pushing a black cloud ahead of it as it extended towards the employees standing at the roll-up door opening. (Please see Dkt. 183-1 at paras. 80-85; Exhibits “hh” referenced therein). 54. Admitted 55. Denied as stated. The explanation of Sun’s damages is not accurate and a subject of Defendants’ motion to exclude their expert, Robert Dovell. (Dkt. 132). Moreover, it is specifically denied that any damages or losses were caused by the actions or omissions of Defendants. (Please see Dkt. 183-1 at para. 100). Case 2:13-cv-04069-JMV-MF Document 189-1 Filed 03/13/17 Page 17 of 22 PageID: 15037 18 56. Denied as stated. The explanation of Sun’s damages is not accurate and a subject of Defendants’ motion to exclude their expert, Robert Dovell. (Dkt. 132). (Please see Dkt. 183-1 at para. 101). 57. Denied as stated. 58. Admitted with qualification. The CSB conducted its investigation, however, Sun did not fully cooperate with the CSB and Sun was of the opinion it did not have an obligation to assist the CSB as evidenced by the testimony of Gary Andrzejewski wherein he stated the following: Again, I’ll state it as I did before, the CSB conducted their own investigation. They knew what transpired within our facility and they knew there wasn’t an MOC that was performed. So why am I going to tell them something they already know. (Please see Dkt. 183-1 at para. 104; Exhibit “ii” referenced therein at 244:12-7). 59. Denied. There has been no factual support for the assertion in this paragraph. The bald assertions submitted within this paragraph with no proof or citations in support thereof renders it impossible for Defendants to respond to this paragraph. Moreover, it is specifically denied that any damages or losses were caused by the actions or omissions of Defendants. (Please see Dkt. 183-1 at para. 117). 60. Denied. There has been no factual support for the assertion in this paragraph. The bald assertions submitted within this paragraph with no proof or citations in support thereof renders it impossible for Defendants to respond to this paragraph. Moreover, it is specifically denied that any damages or losses were caused by the actions or omissions of Defendants. (Please see Dkt. 183-1 at para. 118). 61. Admitted in part that meetings occurred and documents were generatred. However, it is denied that spurious activations represent “failures” of the Fike Case 2:13-cv-04069-JMV-MF Document 189-1 Filed 03/13/17 Page 18 of 22 PageID: 15038 19 equipment. The spurious GCA activation occurs only when an explosion does not occur. Bruce McLelland succinctly explained why the GCA activations are not “failures”: Q. Is a GCA -- premature GCA activation considered a system failure? A. No, it's not a system failure. Q. Why not? A. Because the system didn't fail. There's a part within a system that operated early. Very sensitive systems. It never puts the client in jeopardy. It doesn't cause the system to be out of commission without knowing it. It causes the annunciation and notification to the client that it needs to be taken care of and corrected. It was never put in jeopardy of performance of the system. (Please see Dkt. 183-1 at paras. 122-136, Exhibit “bb” referenced therein at 306:7-207-2). 62. Admitted. For further reference, Sun deliberately and with full awareness of the FM compliance implications, chose to omit a second pressure detector from the Fike Suppression Equipment it purchased. (Please see Dkt. 183-1 at para. 137; Please also see Dkt. 183 at paras. 29-32, 36-37). 63-64. Denied as stated. Sun rejected a second sensor and FM compliance. (Please see Dkt. 183-1 at para. 137; Please also see Dkt. 183 at paras. 29-32, 36-37). 65-66. Admitted with qualification. Defendants admit that Sun was required to make workers’ compensation payments. However, those workers’ compensation payments are not recoverable under the CFA as they represent damages resulting from personal injury. Further, any analysis relied upon by Sun with regard to Mr. Dovell’s findings is inappropriate as Mr. Dovell’s findings are the subject of a Motion to Bar. (Dkt. 132). (Please see Dkt. 183-1 at para. 141). 67. Admitted with qualification. Defendants admit that Sun is claiming Case 2:13-cv-04069-JMV-MF Document 189-1 Filed 03/13/17 Page 19 of 22 PageID: 15039 20 administrative costs associated with the shutdown. However, Defendants filed a Motion to Bar Mr. Dovell’s opinions with regard to the reasonableness and substantiation of these damages. (Dkt. 132). Therefore, it is inappropriate for Sun to argue summary judgment with regard to these amounts when their very existence is in question. Moreover, specifically denied any costs were caused by the actions or omissions of these defendants. (Please see Dkt. 183-1 at para. 142). 68. Admitted with qualification. Defendants admit that Sun is claiming additional labor costs associated with the shutdown. However, Defendants have filed a Motion to Bar Mr. Dovell’s opinions with regard to the reasonableness and substantiation of these damages. (Dkt. 132). Therefore, it is inappropriate for Sun to argue summary judgment with regard to these amounts when their very existence is in question. Moreover, specifically denied any costs were caused by the actions or omissions of these defendants. (Please see Dkt. 183-1 at para. 143). 69. Admitted with qualification. Defendants admit that Sun is claiming distribution costs associated with the shutdown. However, Defendants have filed a Motion to Bar Mr. Dovell’s opinions with regard to the reasonableness and substantiation of these damages. (Dkt. 132). Therefore, it is inappropriate for Sun to argue summary judgment with regard to these amounts when their very existence is in question. Moreover, specifically denied any costs were caused by the actions or omissions of these defendants. (Please see Dkt. 183-1 at para. 144). 70. Admitted with qualification. Defendants admit that Sun is claiming property related costs associated with the shutdown. However, Defendants have filed a Motion to Bar Mr. Dovell’s opinions with regard to the reasonableness and Case 2:13-cv-04069-JMV-MF Document 189-1 Filed 03/13/17 Page 20 of 22 PageID: 15040 21 substantiation of these damages. (Dkt. 132). Therefore, it is inappropriate for Sun to argue summary judgment with regard to these amounts when their very existence is in question. Moreover, specifically denied any costs were caused by the actions or omissions of these defendants. (Please see Dkt. 183-1 at para. 145). 71. Admitted in part; denied in part. It is admitted that Sun may have incurred fees with regard to legal work defending an action with the Borough of East Rutherford. However, the conflict with the Borough of East Rutherford was generated due to Sun’s engineering team’s failure to properly obtain permits necessary to perform the work when installing the dust collector system. Sun failed to obtain permits and/or oversight from the Borough of East Rutherford when installing the dust collector system. Therefore, any legal fees derived as a result of defending that position are not recoverable under the CFA. Moreover, it is specifically denied that any damages or losses were caused by the actions or omissions of Defendants. (Please see Dkt. 183-1 at para. 153-154). 72. Admitted. 73. Denied. Defendants were not “reluctant” to provide information requested by Sun. To the contrary, in the June 7, 2012 email cited by Plaintiff, Rick Seidel stated “I can gladly email [the drawings] to him rather quickly…” As indicated by the cited documents and testimony, Fike/SSI employees merely sought to check with the direct purchaser of the Fike Equipment, UAS, before sending the drawings. Case 2:13-cv-04069-JMV-MF Document 189-1 Filed 03/13/17 Page 21 of 22 PageID: 15041 22 74. Admitted with qualification. As the testimony cited by Plaintiff indicates, Luis Toscano was not involved in the discussions regarding a second detector or FM compliance. (Please see paras. 8-9, infra). Respectfully submitted, REILLY, JANICZEK, MCDEVITT, HENRICH & CHOLDEN, P.C. Attorneys for Defendants, Fike Corporation and Suppression Systems Inc. By: /s/ Gino P. Mecoli Gino P. Mecoli Suzanne I. Turpin Dated: March 13, 2017 Case 2:13-cv-04069-JMV-MF Document 189-1 Filed 03/13/17 Page 22 of 22 PageID: 15042 Case 2:13-cv-04069-JMV-MF Document 189-2 Filed 03/13/17 Page 1 of 3 PageID: 15043 Case 2:13-cv-04069-JMV-MF Document 189-2 Filed 03/13/17 Page 2 of 3 PageID: 15044 Case 2:13-cv-04069-JMV-MF Document 189-2 Filed 03/13/17 Page 3 of 3 PageID: 15045 Case 2:13-cv-04069-JMV-MF Document 189-3 Filed 03/13/17 Page 1 of 4 PageID: 15046 Case 2:13-cv-04069-JMV-MF Document 189-3 Filed 03/13/17 Page 2 of 4 PageID: 15047 Case 2:13-cv-04069-JMV-MF Document 189-3 Filed 03/13/17 Page 3 of 4 PageID: 15048 Case 2:13-cv-04069-JMV-MF Document 189-3 Filed 03/13/17 Page 4 of 4 PageID: 15049 Case 2:13-cv-04069-JMV-MF Document 189-4 Filed 03/13/17 Page 1 of 5 PageID: 15050 Case 2:13-cv-04069-JMV-MF Document 189-4 Filed 03/13/17 Page 2 of 5 PageID: 15051 Case 2:13-cv-04069-JMV-MF Document 189-4 Filed 03/13/17 Page 3 of 5 PageID: 15052 Case 2:13-cv-04069-JMV-MF Document 189-4 Filed 03/13/17 Page 4 of 5 PageID: 15053 Case 2:13-cv-04069-JMV-MF Document 189-4 Filed 03/13/17 Page 5 of 5 PageID: 15054 Case 2:13-cv-04069-JMV-MF Document 189-5 Filed 03/13/17 Page 1 of 4 PageID: 15055 Case 2:13-cv-04069-JMV-MF Document 189-5 Filed 03/13/17 Page 2 of 4 PageID: 15056 Case 2:13-cv-04069-JMV-MF Document 189-5 Filed 03/13/17 Page 3 of 4 PageID: 15057 Case 2:13-cv-04069-JMV-MF Document 189-5 Filed 03/13/17 Page 4 of 4 PageID: 15058 Case 2:13-cv-04069-JMV-MF Document 189-6 Filed 03/13/17 Page 1 of 19 PageID: 15059 Case 2:13-cv-04069-JMV-MF Document 189-6 Filed 03/13/17 Page 2 of 19 PageID: 15060 Case 2:13-cv-04069-JMV-MF Document 189-6 Filed 03/13/17 Page 3 of 19 PageID: 15061 Case 2:13-cv-04069-JMV-MF Document 189-6 Filed 03/13/17 Page 4 of 19 PageID: 15062 Case 2:13-cv-04069-JMV-MF Document 189-6 Filed 03/13/17 Page 5 of 19 PageID: 15063 Case 2:13-cv-04069-JMV-MF Document 189-6 Filed 03/13/17 Page 6 of 19 PageID: 15064 Case 2:13-cv-04069-JMV-MF Document 189-6 Filed 03/13/17 Page 7 of 19 PageID: 15065 Case 2:13-cv-04069-JMV-MF Document 189-6 Filed 03/13/17 Page 8 of 19 PageID: 15066 Case 2:13-cv-04069-JMV-MF Document 189-6 Filed 03/13/17 Page 9 of 19 PageID: 15067 Case 2:13-cv-04069-JMV-MF Document 189-6 Filed 03/13/17 Page 10 of 19 PageID: 15068 Case 2:13-cv-04069-JMV-MF Document 189-6 Filed 03/13/17 Page 11 of 19 PageID: 15069 Case 2:13-cv-04069-JMV-MF Document 189-6 Filed 03/13/17 Page 12 of 19 PageID: 15070 Case 2:13-cv-04069-JMV-MF Document 189-6 Filed 03/13/17 Page 13 of 19 PageID: 15071 Case 2:13-cv-04069-JMV-MF Document 189-6 Filed 03/13/17 Page 14 of 19 PageID: 15072 Case 2:13-cv-04069-JMV-MF Document 189-6 Filed 03/13/17 Page 15 of 19 PageID: 15073 Case 2:13-cv-04069-JMV-MF Document 189-6 Filed 03/13/17 Page 16 of 19 PageID: 15074 Case 2:13-cv-04069-JMV-MF Document 189-6 Filed 03/13/17 Page 17 of 19 PageID: 15075 Case 2:13-cv-04069-JMV-MF Document 189-6 Filed 03/13/17 Page 18 of 19 PageID: 15076 Case 2:13-cv-04069-JMV-MF Document 189-6 Filed 03/13/17 Page 19 of 19 PageID: 15077 CERTIFICATE OF SERVICE AND FILING I hereby certify that a true and correct copy of the foregoing, Fike Corporation and Suppression Systems Inc.’s Reply to Plaintiff’s Opposition to Defendant’s Motion For Summary Judgment and Certificate of Service and Filing have been served this date via ECF, regular mail and electronic mail upon the following: John McGahren, Esquire Stephanie Feingold Morgan, Lewis & Bockius LLP 502 Carnegie Center Princeton, NJ 08540-6289 REILLY, JANICZEK, MCDEVITT, HENRICH & CHOLDEN, P.C. By: /s/ Gino P. Mecoli Gino P. Mecoli, Esquire Suzanne I. Turpin, Esquire Attorneys for Defendants, Fike Corporation and Suppression Systems Inc. Dated: March 13, 2017 Case 2:13-cv-04069-JMV-MF Document 189-7 Filed 03/13/17 Page 1 of 1 PageID: 15078