Guinn v. Praxair, Inc.

386 F.Supp.3d 850

Randy GUINN, Plaintiff,

v.PRAXAIR, INC., Fiba Technologies, Inc., Fike Corporation, Defendants.

Case No. 17-11436

United States District Court, E.D. Michigan, Northern Division.

Signed May 21, 2019

Barry R. Conybeare, Matthew R. Conklin, Conybeare Law Office, P.C., St. Joseph, MI, Debra A. Freid, Freid, Gallagher, Saginaw, MI, Christopher Patrick Desmond, Vernon R. Johnson, Johnson Law, PLC, Detroit, MI, Thomas W. Waun, Grand Blanc, MI, for Plaintiff.

Theresa M. Asoklis, James J. Hunter, Richard A. Joslin, Jr., Collins Einhorn Farrell PC, Southfield, MI, David J. Yates, Eric P. Conn, Michael Wisniewski, Segal McCambridge Singer & Mahoney, Novi, MI, for Defendants.

OPINION AND ORDER GRANTING IN PART MOTION FOR RECONSIDERATION, DIRECTING THE FILING OF SECOND AMENDED COMPLAINT, DENYING MOTIONS CHALLENGING EXPERT WITNESSES, GRANTING FIKE'S MOTION FOR SUMMARY JUDGMENT, STRIKING PRAXAIR AND FIBA'S NOTICES OF NON-PARTY AT FAULT, DENYING PRAXAIR'S MOTION FOR SUMMARY JUDGMENT, DENYING FIBA'S MOTION FOR SUMMARY JUDGMENT AND AMENDING SCHEDUING ORDER

THOMAS L. LUDINGTON, United States District Judge

On May 4, 2017, Plaintiff filed a complaint against Praxair, Inc. ("Praxair") and Fiba Technologies, Inc. ("Fiba") for injuries sustained from an explosion involving a hydrogen trailer (the "Trailer"). Compl., ECF No. 1. On December 19, 2017, Plaintiff filed an amended complaint adding Defendants Fike Corporation ("Fike") and Chart Industries ("Chart").¹ Am. Compl., ECF No. 27.

This opinion and order addresses the following five pending motions. On December 3, 2018, Fike filed a motion for summary judgment. ECF No. 80. The next week, Plaintiff filed a motion to amend his complaint a second time. ECF No. 84. On January 25, 2019, Plaintiff's motion to amend his complaint was denied. ECF No. 97. Plaintiff filed a motion to reconsider the Court's order denying his motion to amend, which will be addressed by this opinion.

On January 25, 2019, Praxair filed a motion to exclude the testimony of Plaintiff's two experts, Thomas G. Witte and Michael D. Klein. ECF No. 100. Praxair contends that Witte's calculations of the Trailer's vacuum are scientifically unsound and incorrect. Praxair also contends that Plaintiff cannot call Witte as a witness because his conclusion that the Trailer's pressure rose to an unsafe level contradicts Plaintiff's testimony to the contrary. Finally, Praxair argues that Klein's testimony should be excluded because he failed, in assessing causation, to analyze and exclude alternative ignition sources for the explosion. A few days later, Fiba filed a motion to exclude Klein's testimony. ECF No. 101. Like Praxair, Fiba argues that Klein failed to assess alternative ignition sources. Fiba also contends that Klein's determination that the Trailer's vent stack rain flap did not fully open is not supported by the evidence. The next week, Fiba filed a notice of concurrence with Praxair's motion. ECF No. 111.² On February 4, Praxair and Fiba filed separate motions for summary judgment. ECF No. 106, 108.

Following a brief explanation about hydrogen and its transportation and a brief recitation of the relevant facts, each of the motions will be addressed in turn.

I.

A.

The following information involving the transportation and delivery of hydrogen was obtained from depositions and the various expert reports and appears largely uncontested.

Hydrogen is typically transported in its liquid form. However, liquid hydrogen transforms from a liquid to a gas at a very low temperature, -423 degrees Fahrenheit. It is the lightest known gas and is 7/100ths as heavy as air. Accordingly, it is imperative that the liquid hydrogen remain at a low temperature within the trailer during transportation. As the temperature within the trailer rises, the liquid hydrogen will begin converting to a gas. Because hydrogen gas occupies more space than liquid hydrogen, the pressure within the trailer will increase.

The trailer is designed to keep the hydrogen at a low temperature. To accomplish this, the trailer has an inner and an outer container. The inner container contains the hydrogen and the outer container holds the inner container. Between the two is an empty space maintained in a vacuum, helping sustain a low temperature within the inner container. Despite the vacuum, the inner container's temperature will inevitably rise. The design of the trailer cannot prevent this, only slow the progression. However, the quality of the vacuum will affect how quickly the temperature rises. The better the vacuum, the slower the rise in temperature. The poorer the vacuum, the quicker the rise in temperature.

The effectiveness of a vacuum is measured in microns which can be measured in one of two ways: cold microns and warm microns. A cold micron reading is measured while the trailer holds hydrogen. A warm micron reading is measured while the trailer is empty. The maximum safe micron level differs between cold microns and warm microns. The higher the micron reading, the higher the vacuum temperature. The lower the micron reading, the lower the vacuum temperature. A low micron reading is indicative of an effective vacuum. When a vacuum temperature rises to a certain micron level, it is deemed unsafe.

While liquid hydrogen is being transported, it can only be held in the trailer for a certain amount of time because its temperature will increase and become a gas. This will cause the pressure within the trailer to increase. Eventually, the pressure will reach a level that the trailer can no longer contain the hydrogen gas. At this point, the gas must be permitted to escape or the trailer may explode.

To facilitate a controlled release of hydrogen, the trailer is equipped with three safety release mechanisms. The first is the back pressure regulators which provide the smallest amount of pressure release at 135 psig. If the pressure increases beyond the capability of the back pressure regulators, then the spring loaded safety relief valves will activate. The spring loaded safety relief valves provide a medium amount of pressure release at 150 psig. And finally, if the pressure increases beyond the capability of the spring loaded safety relief valves, the rupture discs will activate. As the name implies, the discs with rupture and release a high amount of pressure at 219 psig.

All three of these safety relief mechanisms channel into the trailer's vent stack which releases the hydrogen gas into the air outside the trailer. The release of hydrogen gas can be dangerous because hydrogen has a broad flammability range and requires only a low level of energy to ignite. 0.02 millijoules of energy can ignite hydrogen which is less than seven percent of the energy needed to ignite natural gas. Hydrogen can ignite from the slightest source, such as static electricity or friction. For this reason, it is imperative that the vent stack and the trailer itself be constructed of material and in a manner that eliminates any such ignition source from being present.

The trailer has a pressure gauge that the driver can view from their seat. Praxair instructs its drivers to monitor the pressure level within the trailer. If the pressure rises more than 0.2 psig over two hours, drivers must stop, find a safe location, and vent the trailer.

Upon arriving at their destination, drivers must attach a hose from the trailer to the receiving hydrogen tank. The driver activates a switch on the tank and it automatically lowers the tank pressure to 135 pounds. The driver then must manually lower the tank pressure to 120 pounds and increase the trailer pressure to 135 pounds. It is dangerous for the trailer to exceed 135 pounds of pressure because the trailer's maximum pressure is 150 pounds. The difference in pressure between the trailer and the tank forces the hydrogen to flow from the trailer into the tank. It is important that the difference in pressure be great enough that the hydrogen is forced to flow between the two. Otherwise, the hydrogen will not flow into the tank and the pressure within the trailer will continue to build. The optimal difference in pressure is 15 pounds.

B.

The incident at issue occurred on December 22, 2014. Plaintiff was scheduled to deliver hydrogen from East Chicago, Indiana to Hemlock Semiconductor in Hemlock, Michigan. Pl.'s Dep. at 39, ECF No. 55-1. The trailer used to deliver the hydrogen was Trailer 4855 ("Trailer"). Am. Compl. at 3, ECF No. 27.

Prior to making the delivery, Plaintiff inspected the Trailer. ECF No. 55-1 at 36. This included examining the Trailer's valves, meters, hoses, and vent knobs. Id. Plaintiff also checked to ensure that the Trailer's pressure was below 12 psig. ECF No. 100-9 at 22. Upon arriving at Hemlock Semiconductor, Plaintiff parked the Trailer at one of eight hydrogen tanks. ECF No. 55-1 at 30. He chock blocked the Trailer's tires, lowered the Trailer's airbag, grounded the Trailer, and connected a copper grounding wire to the Trailer. Id. at 49–50. Plaintiff then lowered the pressure in the receiving tank and elevated the pressure in the Trailer. Id. at 53. Hydrogen began pumping from the Trailer into the tank. Id. at 56. At some point, Plaintiff recalls the pressure in the Trailer quickly rising to 140 psig. ECF No. 80-5 at 58. Hydrogen then explosively escaped the Trailer and injured Plaintiff. ECF No. 27 at 5.

C.

Following the incident, Praxair (the owner of the Trailer) developed a Root Cause Analysis ("RCA") of the accident on March 31, 2015. Rathgeber Dep. at 136, ECF No. 63-4. The focus of an RCA is first to determine what the employee's injury is and then to determine how the injury occurred. Id. at 24–25. Praxair's Director of Safety for U.S. Industrial Gasses, Dan Rathgeber, was deposed on May 4, 2018 regarding the RCA. Rathgeber explained that during the RCA, Trailer 4855 was inspected "top to bottom" and no problems were found. Id. at 129. He did identify two causes of Mr. Guinn's injury. He stated:

[T]here were two

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