Sexton v. Exxon Mobil Corp.

484 F.Supp.3d 321

Leroy SEXTON

v.EXXON MOBIL CORPORATION, et al.

CIVIL ACTION NO.: 17-482-JWD-RLB

United States District Court, M.D. Louisiana.

Signed September 4, 2020

David P. Wilson, Provost Umphrey Law Firm, LLP, Beaumont, TX, Corey Lamar Pierce, Law Office of Corey L. Pierce, Dwayne M. Murray, Murray & Murray Law Firm, Baton Rouge, LA, Thomas McGowan, Pro Hac Vice, Little Rock, AR, for Leroy Sexton.

Andrew Blanchfield, Brian T. Butler, Crews Reynolds LeBlanc, Jr., Chelsea Acosta Payne, Keogh, Cox & Wilson, Ltd., Baton Rouge, LA, for Brock Industrial Services, LLC.

Michael P. Bienvenu, Brent Eugene Kinchen, Gregory P. Aycock, Gregory Kent Moroux, Jr., Valerie Briggs Bargas, William C. Helm, Kinchen, Walker, Bienvenu, Bargas, Reed & Helm, LLC, Baton Rouge, LA, for Flowserve US, Inc.

RULING ON DEFENDANT FLOWSERVE US INC.’S DAUBERT MOTION AND/OR MOTION IN LIMINE TO EXCLUDE TESTIMONY OF PLAINTIFF'S EXPERT, MICHAEL EDWARD SAWYER

JOHN W. deGRAVELLES, JUDGE

Before the Court is the Daubert Motion and/or Motion in Limine to Exclude Testimony of Plaintiff's Expert, Michael Edward Sawyer (Doc. 238) brought by defendant Flowserve US Inc. ("Defendant" or "Flowserve"). It is opposed by plaintiff Leroy Sexton ("Plaintiff" or "Sexton"). (Doc. 258.) Flowserve filed a reply brief. (Doc. 275.) The Court has carefully reviewed the motion and associated memoranda, and, for the following reasons, the motion is denied.

I. BACKGROUND

The case arises out of a fire and explosion which occurred at the Exxon Mobil Corporation refinery in Baton Rouge, Louisiana on November 22, 2016. Plaintiff was among those injured and sues Flowserve as the manufacturer of a plug valve¹ involved in the explosion. Sexton was one of four individuals injured. An L-shaped bracket (also manufactured by Flowserve) was used to mount an actuator/gearbox on top of the plug, along with a handwheel used to manually operate the actuator/gearbox. (Id. at 2-3.) The plug valve was located in an active pressurized isobutane line. (Id. at 3.)

An Exxon worker, Jonathan Zachary ("Zachary"), attempted to open the valve by using the handwheel which was inoperable. (Id. at 1-2.) While the isobutane line was still under pressure, Zachary then began to remove the actuator gearbox in order to gain access to the valve stem which he intended to then open with a wrench. (Id. at 2.) Four vertical screws secured the L-shaped bracket to the plug but also secured the pressure plate on the plug valve. (Id. )

As described in Flowserve's motion,

After removing the actuator/gearbox, Zachary used a wrench to turn the now exposed valve stem. Upon doing so, because Zachary had removed the four vertical bolts securing the pressure plate while the isobutane line was still pressurized, pressurized isobutane entered the plug valve causing the plug to be partially and or totally ejected at which point the pressurized isobutane was released into the atmosphere. The isobutane reached an ignition source ... and a fire and explosion occurred injuring plaintiff.

(Id. at 2-3.) As described in Plaintiff's opposition,

Unbeknownst to Zachary, the four bolts that connected the bracket to the valve were also pressure-containing bolts that held the top cap of the valve in place. Although removing the bottom four bolts could result in catastrophic valve failure, with the plug being ejected by the pressure, resulting in the release of whatever potentially toxic or flammable liquid was in the line, there was no warning or instruction on the valve or the actuator to alert Zachary of that danger. Of the 500 block valves with gearboxes in the Alky unit where Zachary worked, only about 3% had this particular design characteristic. On the other 97%, there were no "wrong bolts" associated with the actuator that, if removed, could result in a catastrophic explosion.

(Doc. 258 at 1-2.)

According to Flowserve, Plaintiff sues Flowserve under the Louisiana Products Liability Act ("LPLA"), La. R.S. 9:2800.51 et seq. , alleging that Flow Serve's product was 1) unreasonably dangerous in construction or composition; 2) unreasonably dangerous in design and 3) unreasonably dangerous due to inadequate warnings. (Doc. 238 at 3). According to Plaintiff, he is asserting claims against Flowserve for design defect and lack of an adequate warning under subsections (2) and (3). (Doc. 258 at 4.) Despite Flowserve's assertion, he does not mention a claim based on defective construction or composition. (Id. )

II. MICHAEL EDWARD SAWYER

The subject of Flowserve's motion is Michael Edward Sawyer ("Sawyer"). Sawyer's Curriculum Vitae is attached to Plaintiff's opposition brief. (Doc. 258-1 at 46-60.) Briefly, Sawyer earned a Bachelor of Science degree in Safety Engineering from Texas A&M University in 1983. He is a Registered Professional Engineer in Texas and Massachusetts and a Certified Safety Professional. According to his CV, he has "led and participated on various safety engineering projects over the past 36 years. These have ranged from general industrial safety applications to detailed analyses of process units and systems.... The greatest span of Mr. Sawyer's career has been in the area of process safety [and] has facilitated numerous hazard and risk assessments studies of petrochemical facilities throughout the world." (Doc. 258-1 at 48.) He has also "participated in numerous fire and explosion investigations at refineries, and facilities handling highly hazardous chemicals ..." (Doc. 258-1 at 3.)

Sawyer's report is attached to Flowserve's motion at Doc. 238-2 at 154–173; it is also attached to Plaintiff's opposition at Doc 258-1 at 1–20. The documents he reviewed in preparation for giving his opinions are found at Doc. 258-1 at 21–45. His prior depositions and trial testimony for the preceding four years can be found at Doc. 258-1 at 59 and his fee schedule is in the same document, id. at 60. Flowserve attaches his deposition at Doc. 238-2 at 1–153. His affidavit is attached at Doc. 258-2.²

III. ARGUMENTS OF THE PARTIES

A. Flowserve's Arguments

Flowserve's main argument, that Sawyer's opinions are irrelevant, is premised on its contention that, under the LPLA, "whether a product is ‘unreasonably dangerous’, is determined at the time the product left the manufacturer's control , which in this case, was the [sic] in the 1970s." (Doc. 238-1 at 8 (emphasis in original).) Flowserve further contends that "the totality of Sawyer's opinions [regarding] plaintiff's claims against Flowserve are contained in a single paragraph," [paragraph 5.4 found at Doc. p. 19 of his report], which states:

Flowserve's omissions, and failures were contributing factors to the existing circumstances at the Baton Rouge [sic]. As admitted by Flowserve's Corporate Representative, notifying their end users about safety was a duty of Flowserve. While Flowserve purports to have notified ExxonMobil about the safer design, it failed to produce evidence of that communication with the Baton Rouge Refinery pertaining to the plug valve design hazard identified in memorandums to its valve distributors such as Setpoint.

(Doc. 238-1 at 3–4.)

Because this alleged failure on the part of Flowserve occurred after the valve left the control of Flowserve's predecessor, "no relevant inquiry exists under the specific LPLA claims asserted by plaintiff ... regarding the conduct of Flowserve after the Flowserve plug valve left Flowserve's control in the 1970s." (Id. at 9.) "In short, Mr. Sawyer is simply attempting to opine on a theory of liability that does not exist under the LPLA – i.e. that, after the Flowserve plug valve ... left its control, Flowserve's [sic] changed its design for mounting actuators/gearboxes and that Flowserve (1) had a duty to notify Exxon of its new design, and (2) failed to do so. No such theory of liability can be found in the LPLA." (Id. at 10)

La. R.S. 9:2800.57(C), imposes a duty to use reasonable care to provide an adequate warning of a characteristic of the product that may cause damage and the danger of such characteristic to users and handlers of the product, about which it has become aware after the product has left its control. Flowserve contends that "[a]s a matter of law, [it] has no application in this case." (Id. at 9.) Why? "In this case, Flowserve was already aware of the purportedly dangerous characteristic that may cause damage alleged to exist in the Flowserve plug valve and Flowserve contends that it used reasonable care to provide an adequate warning, which is the scenario contemplated in 9:2800[.57](A)." (Id. )³

Further, argues Flowserve, even if 2800.57(C) did apply, Sawyer does not opine that Flowserve became aware of a dangerous characteristic of the product after it left Flowserve's control or failed to provide an adequate warning concerning same, but only that Flowserve changed the design and failed to alert Exxon/Mobil "about its new (allegedly ‘safer’) design." (Id. at 9-10.)

Flowserve's second reason proffered to exclude Sawyer's opinions is that the alleged changes to the product upon which he bases his opinions are inadmissible subsequent remedial measures under Federal Rule of Civil Procedure 407. (Id. at 10–11 (citing no case law in support of this contention).) Third, Flowserve argues that his opinions are "admittedly not opinions for which any scientific, technical, or other specialized training are required to help the trier of fact in this case understand the evidence or determine a fact in issue as required by Rule 702 of the Federal Rules of Evidence." (Id. at 11–12 (citing Sawyer's deposition, Doc. 238-2 at 7–10, 14).) Finally, Sawyer is "admittedly not qualified ... to provide any opinions in this case regarding any of plaintiff's claims against Flowserve under the LPLA." (Id. at 12 (citing Sawyer's deposition, Doc. 238-2 at 36–37).)

B. Plaintiff's Arguments

In his opposition, Plaintiff disagrees with Flowserve's limited characterization of Sawyer's report (Doc. 258 at 5 (citing to specific pages of the report, Doc. 258-1).) Plain...