The opinion of the court was delivered by: Thomas W. Phillips United States District Judge
This matter is before the Court upon multiple motions filed by parties, including motions to reconsider, motion to file cross claims, Daubert motions, and various motions in limine. Replies and responses were received by the Court, and oral argument was taken on December 12, 2006. The Court ruled on many of the motions presented at the hearing but reserved several motions for further consideration. For the reasons stated at oral argument, defendant's motion for leave to file cross-claim [Doc. 139] is GRANTED; defendant's motion in limine regarding testimony of Brad White and Dayne Grey [Doc. 174] is DENIED;*fn1 defendant's motion in limine to prohibit any statements or references intended to incite anti-Venezuela sentiment or anti-Hugo Chavez sentiment [Doc. 175] is GRANTED; and plaintiff's motion for leave to take the deposition of Robert Montgomery for the purposes of presentation at trial [Doc. 210] is GRANTED.
For the reasons that follow, defendants' motions in limine to bar all testimony of Rodney E. Fowler for spoilation of evidence [Doc.s 167, 169, and 170] are DENIED; defendants' motions in limine to exclude the proposed testimony of Andrew T. Armstrong, Ph. D. [Doc.s 137, 140, and 152] are GRANTED in part and DENIED in part; defendants' motions to reconsider the Court's memorandum and opinion [Doc.s 155 and 178] are GRANTED in part and DENIED in part; defendant's motion in limine prohibiting any evidence alleging reliance on the skill/judgment of Industrial Paper of its salesman [Doc. 163], as well as defendants' motions in limine regarding implied warranty of fitness for a particular purposes [Doc.s 180 and 184] are DENIED; defendants' motions in limine to exclude from evidence the hearsay statement allegedly made by Ronald W. Ogle to plaintiff's expert Rodney E. Fowler [Doc.s 171 and 185] are DENIED; and defendant's motions in limine to exclude from evidence the testimony of Rodney E. Fowler on the basis that there is no evidentiary foundation to support his testimony [Doc.s 182 and 186] are DENIED.
As the facts of the case have been fully discussed in previous motions and orders, the Court omits the factual background of the case and only inserts relevant facts for the purposes of the Court's reasoning. Further, the Court merely provides an abridged summary of the motions for the purposes of this opinion. Also, for the purposes of this memorandum and opinion, the term "plaintiff" shall refer to the arcade and its operators, as well as Travelers Indemnity Company.
II. Motion in Limine to Bar all Testimony of Rodney E. Fowler for Spoliation of Evidence
Citgo Petroleum Corporation ("Citgo") asserts that plaintiff failed to preserve ductwork, an exhaust fan motor, and a transformer from the laser tag facility, while fully aware that this evidence was important in proving/disproving plaintiff's causation theory. Thus, Citgo asserts that this failure constitutes spoliation of the evidence in that no investigation of the evidence is possible. Citgo presents an affidavit from C. Monroe Copeland in support of its spoliation argument. According to Mr. Copeland, the mineral oil would have condensed into the fibers of the ductwork insulation and some of the oil would have remained in these fibers after the fire. Mr. Copeland states that several tests could have been performed to detect the presence of the mineral oil in the insulation of the ductwork and whether and where combustion took place. Further, he states that the metal ductwork could have been tested to detect if the mineral oil was present. Mr. Copeland concludes that without the ductwork, etc., whether the mineral oil was present in the ductwork, whether combustion occurred, and whether vitamin E (a component of the mineral oil) was present, cannot be answered. Additionally, Citgo cites authority, some Tennessee law, where the remedies to issues of spoilation were dismissal of the case and/or exclusion of the expert. These cases tended to involve items that could easily be stored, such as a television or automobile. Citgo also asserts that the retained fire investigator, Rodney Fowler, did not comply with various NFPA codes in his investigation of the fire. In sum, Citgo states that the testimony of Mr. Fowler should be excluded or that plaintiff's claims and complaint should be dismissed with prejudice.
Ronald Ogle and Ogle's Repair Company ("Ogle") filed a joinder to Citgo's motion. Also, Venture Tech, Inc. ("Venture Tech") filed a joinder, stating that Citgo sold them the subject mineral oil and that the legal arguments raised by Citgo would apply with equal force to the claims brought by Venture Tech. Thus, Venture Tech joins in Citgo's motion.
In response, plaintiff states that the Court has previously addressed these issues on two separate occasions, specifically in two memorandum and opinions with respect to defendant Ogle's motions for summary judgment. Plaintiff also asserts that the requested sanctions are too harsh; that courts generally are reluctant to dismiss a lawsuit on spoliation; that there was no evidence that the plaintiff could have practically collected the subject items without undue hardship and extreme financial burden (the HVAC unit is 5 tons); that the diffusion fluid consumed itself in the fire; and that Mr. Fowler properly documented the fire scene in accordance with NFPA 921.
B. Applicable Law and Analysis
Tennessee courts have the discretion to sanction destruction of evidence and to impose sanctions appropriate under the circumstances of each case. The subject evidence that the defendants desired plaintiff to preserve includes ductwork, an exhaust fan motor, and a transformer from the laser tag facility. While the Court is aware that this evidence may have been important in proving or disproving plaintiff's causation theory, the Court finds that the sanctions requested by the defendants are unduly harsh. The Court believes that the issue can be addressed in questioning the credibility and veracity of Mr. Fowler's theories and arguments. Moreover, the defendants' ability to discredit and call into question both Mr. Fowler's fire scene investigation and his analysis, militates against substantial prejudice to the defendants. See Roskam Baking Co. v. Lanham Machinery Co., 87 F.Supp.2d 758 (W.D. Mich. 1999).
The plaintiff states that some defendants have retained their own experts on the issue and have developed theories as to the cause of the fire. The Court therefore finds that the defendants are able to develop their own theories regarding the possible cause of the fire and to call into question the theories put forth by Mr. Fowler. See id. For further reason, the Court reflects that preserving all of the evidence that defendants demand is not feasible nor realistic. This is not a case involving preservation of a computer, automobile, or paper file, items that are easily collected, stored, and preserved. The matter involves a 5 ton HVAC system with a network of ductwork, as well as other substantial machinery. Defendants' argument that the external fan motor and a cross section of the ductwork could have been preserved, at the very least, is noted and will be a proper area for cross-examination at trial. In light of this discussion, defendants' motions regarding spoliation of the evidence is denied.
III. Motion in Limine to Exclude Expert Testimony of Andrew Armstrong
It is proposed that Dr. Andrew T. Armstrong, Ph.D and CPC, intends to testify that the wording and warnings contained in the material safety data sheets ("MSDS") for diffusion fluid provided by Industrial Paper and Packaging Corp. ("Industrial Paper") are "not appropriate, [are] wrong, and [are] very misleading," i.e. the word "non-flammable" should not have been used in the MSDS. Although not included in Dr. Armstrong's report, it also appears from his deposition testimony that Dr. Armstrong might intend to render an opinion as to the MSDS that Citgo disseminated to the public.
Citgo is in the upper chain of distribution and put out its own MSDS, which did not state that the fluid was "non-flammable." Further, it appears that Citgo's MSDS was not delivered to the end-user, the arcade. However, Citgo believes that by discussing the diffusion fluid at issue in this case, Dr. Armstrong's testimony will also address issues concerning Citgo and its MSDS's statements and warnings. Citgo advances various arguments.
First, Citgo asserts that Dr. Armstrong is not competent to provide expert testimony regarding warnings on an MSDS. Citgo asserts that since Dr. Armstrong neither has education nor experience in writing or reviewing MSDS's, he should be prevented from testifying on the issue of MSDS warnings. Citgo states that although Dr. Armstrong and/or his firm have been asked to supply data that actually goes into an MSDS, he and/or his firm do not perform the actual writing or warnings that are used in MSDS's. Citgo notes that Dr. Armstrong's testimony is addressed directly to the wording on the MSDS and that, while he may have training and experience in investigating chemicals in suspect fire debris or experience with various chemicals, he does not have the necessary training or experience to address the types of wording and warnings used in a MSDS. Citgo cites essentially two cases to support its proposition.
In the first case, Johnson v. Manitowoc Boom Trucks, Inc., 406 F.Supp.2d 852 (M.D.Tenn. 2005), the Court found that the proposed expert had "no specific education on warnings, no specific training on warnings, ha[d] never done any testing of proposed warnings, and no warnings that he drafted ha[d] ever been actually used on equipment in the field."*fn2 In the second case, Patterson v. Central Mills, Inc., 64 Fed.Appx. 457 (6th Cir. 2003), the Court stated that the expert "had never written flammability warnings for clothing, ha[d] no specific education on warnings, had no specific training with respect to warnings on clothing, and had never written an article regarding clothing subject to peer review." Both experts were excluded from testifying on the issue of appropriate warnings. In light of these cases, Citgo argues that the lack of Dr. Armstrong's knowledge, skill, experience, training, and education regarding MSDS warnings should preclude his testimony.
Second, since Dr. Armstrong had not reviewed the MSDS provided by Citgo before writing his report (only the MSDS provided by Industrial Paper), Citgo asserts that Dr. Armstrong should not be able to offer opinions as to Citgo's MSDS.*fn3 Third, since Dr. Armstrong has no knowledge regarding the contents of the labels on the containers that arrived at Q-Zar, he should not be permitted to give testimony on whether Citgo or any other entity provided sufficient warnings to the end user regarding the properties of diffusion fluid. Fourth, since Dr. Armstrong has not tested the fluid, he should not be able to offer any opinion on the properties or qualities of the fluid. Fifth, Citgo contends that his testimony would not assist the trier of fact to determine a fact in issue because his testimony is focused on the warnings of flammability, which the jury should understand; further, his testimony may confuse the jury, that is, the jury may confuse Industrial Paper's MSDS with Citgo's MSDS. Lastly, Citgo asserts that since Dr. Armstrong has not satisfied the Daubert factors, which include testing, peer review, error rate, and acceptance in the applicable community, his testimony should be excluded.
Venture Tech joins in Citgo's motion and also presents additional arguments. Venture Tech submits that the issue of effect of the subject MSDS on the reader does not require scientific, technical, or specialized knowledge. Venture Tech asserts that expert testimony is not needed on the topic of whether the MSDS taken as a whole places the end user on notice that the diffusion fluid can burn and/or the reasonableness of any alleged warning contained in the MSDS. Also, Venture Tech argues that the MSDS is not intended for the consumer or retail use. Rather, the MSDS is prepared for employers in the occupational setting who are to train their employees concerning the labeling system and the MSDS. Venture Tech asserts that Dr. Armstrong is applying an incorrect and completely subjective standard to the MSDS. Also, Venture Tech states that Dr. Armstrong does not discuss OSHA regulations governing the MSDS's as they relate to "combustible" and "flammable" terms; rather, he refers to the dictionary definitions.*fn4 Additionally, Venture Tech argues that neither his opinions on the effect of the warning or the actual chemical properties have been tested and that his opinions have not been subjected to peer review. Also, Venture Tech states that Dr. Armstrong's testimony has been prepared only for this litigation. Further, Venture Tech asserts that the testimony of Dr. Armstrong should be excluded because his own statements demonstrate that his expertise lies only in chemistry. Venture Tech asserts that Dr. Armstrong admitted that his expertise is not in the cause and origin of fires.*fn5
Ogle has joined in Citgo's motion, as well as Venture Tech's motion to exclude Dr. Armstrong's opinions. Further, Ogle asserts that Mr. Armstrong freely admitted in his deposition that he does not have any specialized knowledge, experience, or expertise that would qualify him to testify or render expert opinions as to the work performed on the subject HVAC system by Mr. Ogle, through Ogle's Repair Company, on September 3, 1999, and that in fact he had no idea what services Mr. Ogle or Ogle's Repair Company ...