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Central Transport LLC v. Thermofluid Technologies, Inc.

United States District Court, E.D. Tennessee, Knoxville

January 3, 2020

CENTRAL TRANSPORT, LLC, and CROWN ENTERPRISES, INC., Plaintiffs,
v.
THERMOFLUID TECHNOLOGIES, INC., Defendant.

          MEMORANDUM AND ORDER

          DEBRA C. POPLIN UNITED STATES MAGISTRATE JUDGE

         This case is before the undersigned pursuant to 28 U.S.C. § 636, the Rules of this Court, and Standing Order 13-02.

         Now before the Court is Defendant's Motion to Preclude the Testimony of Timothy Wilhelm [Doc. 45], Defendant's Motion to Preclude the Testimony of Brooks Rugemer [Doc. 47], and Plaintiffs' Motion to Recover Expert Fees Related to Plaintiffs' Experts' Deposition Testimony [Doc. 60]. The parties appeared before the Court on August 27, 2019, for a motion hearing. Attorneys Trevor Sharp and Jackson Tidwell appeared on behalf of Plaintiffs. Attorney David Draper appeared on behalf of Defendant. No. testimony from Plaintiffs' expert witnesses was presented. Accordingly, for the reasons set forth below, the Court DENIES Defendant's Motion [Doc. 45], GRANTS Defendant's Motion [Doc. 47], and GRANTS IN PART Plaintiffs' Motion [Doc. 60].

         I. BACKGROUND

         The Court will first begin with the allegations in the Complaint and then turn to the challenged opinions.

         A. Complaint

         This case concerns whether a fire in Plaintiffs' building on March 1, 2016, was the result of Defendant's alleged improper packaging. The Complaint states that the fire occurred at a terminal when a pallet of Valken Tactical Green Gas (“Green Gas”) ignited while being loaded by a forklift. Plaintiff Central Transport, LLC leases the terminal from Plaintiff Crown Enterprises, Inc. [Doc. 1 at ¶ 5]. The Complaint avers that a spark at floor level occurred when the fork of the forklift struck the dock plate while loading the Green Gas. [Id. at ¶ 6]. A massive fire quickly ensued and spread through the Central Transport trailer and warehouse facility. [Id.].

         The Complaint states that under local, state, and federal law, Defendant owed Plaintiffs a duty to exercise reasonable care in the packaging, supervision of packaging and handling, and inspection of the Green Gas to ensure that it was safe for shipment. [Id. at ¶ 7]. The Complaint states that the proximate cause of the fire and resulting damage was the result of Defendant's negligent acts, more specifically pled as follows:

(1) Failure to adequately and safely package the Green Gas;
(2) Failure to inspect the pallet of Green Gas to ensure that it was safe for shipment;
(3) Failure to adequately warn of the ineffective and defective packaging of the Green Gas;
(4) Failure to supervise its employees responsible for packaging and shipping the flammable Green Gas;
(5) Failure to implement appropriate quality controls so as to prevent damaged or defective shipment from leaving its custody and control;
(6) Failure to properly handle and/or exercise due care in handling Green Gas during packaging; and
(7) Failure to properly stack the pallets of Green Gas in a manner so as to prevent damage to the containers.

[Id. at ¶ 8].

         B. Experts' Opinions

         Relevant to the instant matter, Plaintiffs retained Timothy Wilhelm and Brooks Rugemer to testify as experts in this case. The Court will now turn to the experts' opinions and testimony.

         1. Timothy Wilhelm

         Timothy Wilhelm (“Wilhelm”) is a fire and explosion investigator. [Doc. 54-1 at 1]. Wilhelm was retained to determine the cause and origin of the fire. [Id.]. In his expert report, Wilhelm states that in conducting the fire investigation, he used the scientific method, the basic method of fire investigations, and a systematic approach as discussed in the 2014 edition of the National Fire Protection Association (“NFPA”) 921: Guide for Fire and Explosion Investigation. [Id. at 4]. He makes the following findings in his report:

1. The area of origin of the fire was in trailer #49-8068 located at dock #127;
2. The first fuel ignited is propane based Green Gas;
3. The ignition source is a spark created by metal to metal contact of the forklift and dock plate; and
4. The circumstances that brought the ignition source in contact with the first fuel ignited is the inadvertent leaking of Green Gas from its container allowing it to be ignited by a spark.

[Id. at 9].[1]

         Wilhelm testified that the operator of the electric forklift saw a spark as he was driving over the dock plate. [Doc. 54-2 at 20]. Wilhelm's understanding is that the dock plate is a metal plate that provides a bridge to the trailer and the facility. [Id. at 21]. He testified that he cannot provide a description of the metal plate, which direction the plate was pointing, or whether the plate sloped. [Id.]. He does not know how high the bottom of the forklift was from the floor. [Id.]. He acknowledged that he did not inspect any physical evidence from the fire. [Id. at 22]. Wilhelm was told that there was nothing left to inspect and that everything was cleaned. [Id. at 23]. Wilhelm stated that he has never provided testimony in connection with a forklift-related fire. [Id. at 20].

         Wilhelm testified that despite the lack of physical evidence, he was able to provide an opinion by discussing what happened with the forklift operator, Arthur Jefferson. [Id. at 23]. He explained as follows:

A lot of times the physical evidence in the fire gets destroyed. It gets burned up. And in the case of a pallet or something like that, it would be destroyed anyway.
So yeah, with an eyewitness statement and the fact that there was no other electrical sources within the trailer and there were no other ignition sources within the trailer and there was no other fuel in the trailer, then I was able to form my opinion.

[Id.]. Wilhelm testified that he determined the origin of the fire through his interview with Jefferson. [Id.] Wilhelm explained that Jefferson crossed the dock plate in the forklift and saw a spark and then it went immediately to the pallet. [Id.]. Wilhelm stated that the Green Gas was the only fuel source at the dock plate and at the bottom of the trailer. [Id. at 23-24]. Wilhelm stated, “I mean I just didn't have anything else that could have been ignited. It was an empty trailer.” [Id. at 24].

         During his deposition, Wilhelm was also asked about his opinion that the ignition source was the spark created by metal-to-metal contact of the forklift and dock plate. [Id.]. Wilhelm explained that at the time he drafted his report, he did not know what portion of the forklift came into contact with the dock plate. [Id.]. Wilhelm stated that he based this opinion strictly on Jefferson's statement that he saw a spark when he came over the dock plate and “[k]nowing that it takes metal-to-metal to make a spark, that's what I concluded.” [Id.]. Wilhelm testified that he did not need to examine the dock plate based on Jefferson's account and the photographs that he (Wilhelm) reviewed. [Id. at 24, 25]. Wilhelm testified that, based on Jefferson's account, the spark came from the forklift when Jefferson drove it over the dock plate. [Id. at 25]. Wilhelm stated, “We know that we had a fire. We know that we had an empty trailer with no ignition source in it. And we know that the forklift came over the dock plate, and by eyewitnesses' accounts, there was a spark and it ignited the pallet.” [Id.].

         Wilhelm also discussed his opinion that regarding the circumstances that brought the ignition source in contact with the first fuel, which Wilhelm opined was the inadvertent leaking of Green Gas. [Id.]. Wilhelm acknowledged that ideally, he would have examined the remnant cans from the fire scene, but no evidence had been preserved. [Id. at 27]. Wilhelm testified that he did not examine the forklift that was involved. [Id.].

         Wilhelm testified that he adhered to NFPA 921 in his investigation. [Id. at 28]. He acknowledged that he did not perform any testing. [Id. at 27]. In addition, he did not perform any arc mapping. [Id. at 29]. With respect to the fire dynamics, Wilhelm testified that the fire started within the trailer outside the sprinklers' coverage and that there were no sprinklers inside the interior of the trailer. [Id. at 30]. Further, with respect to fire patterns, he explained that the photograph of the trailer (where the fire originated) showed the trailer was totally consumed and that there was fire damage on the trailer adjacent to the consumed trailer, which indicated that the origin of the fire was in the consumed trailer. [Id.]. He stated that the trailer to the left of the consumed trailer showed a bit of smoke damage on it, while the trailer on the right showed no damage at all. [Id.].

         Wilhelm testified that he is not able to determine the cause of the spark, the ultimate cause of the fire, or the cause of the ignition source. [Id. at 31]. He did, however, know the ignition source. [Id.].

         2. Brooks Rugemer

         Brooks Rugemer (“Rugemer”) is a commercial transportation specialist, who investigates and analyzes commercial-transportation related accidents and incidents. [Doc. 53-1 at 1].[2]Plaintiffs state that Rugemer's ultimate conclusions from his investigation should be more appropriately tailored as follows: (1) Valken used recycled and repaired pallets; (2) Valken failed to properly package its product on a pallet, in an manner that prevented sliding and movement of the product; and, (3) Valken's decision to stack [its] product six tiers high caused or contributed to the crushing of boxes on the bottom of the pallet. [Doc. 53 at 5].[3] At the hearing, Plaintiffs stated that they intend to only rely on the opinions that are consistent with their Rule 26 disclosure-that is, Rugemer's opinions “concerning the method and manner of Defendant's preparation for shipment of the subject Valken Green Gas involved in the fire on March 1, 2016.” [Doc. 53-1 at 1].

         Rugemer testified that the only deposition he read was of Floyd Brewer (“Brewer”), Defendant's owner and president, and that he did not talk to Jefferson but reviewed Jefferson's handwritten statement and Wilhelm's interview notes of Jefferson. [Doc. 57-1 at 12]. During his deposition, Rugemer reviewed a photograph of a pallet of Green Gas to which he testified was similar to the pallet of Green Gas at issue. [Id. at 18].[4] The following exchange occurred:

A. To me what I see here is the top three tiers of the pallet are leaning, that indicates to me that the stretch wrap isn't right, wasn't applied properly. The bottom left carton is already showing some crush damage or maybe pinch damage from being next to another pallet. There's a slight overhang on both sides of the pallet and -
Q. Do you see an overhang on the right side of the bottom?
A. From about the third tier up. So starting at first and second tiers are leaning to the right, the third tier is leaning to the right. The top three tiers are leaning to the left, so they are outside of the running lines of the pallet.

[Id.].

         Rugemer testified that the boxes were out of vertical alignment and that such a condition could be caused by the manner of handling during transport, but it suggests that the stretch wrap used on the pallet is not tight. [Id.]. Rugemer believed that Defendant's owner testified that Defendant applies the stretch wrap manually. [Id.]. He stated that he did not need to know what particular stretch wrap material was used and what the manufacture required. [Id.]. He explained that he did not need to know what particular stretch wrapped was used because whatever was used, the top tier boxers on the pallet still moved. [Id.]. He acknowledged that he does not know why the top tier moved. [Id.]. He opined that one of the reasons the top tier shifted is because of the loose stretch wrap. [Id. at 19]. When asked how he could determine that the stretch wrap was loose based on the photograph, Rugemer testified, “I have been doing this for decades. I have handled hundreds and hundreds of claims. I have taught warehouse people how to unitize a pallet like this. This is a common symptom of not properly applying shrink wrap.” [Id.].[5] He continued that based on his experience, the shrink wrap was loose. [Id.].

         Rugemer testified regarding the acceptable method of securement as follows:

The best way to secure them onto the pallet is when you begin the stretch wrap process, is to tie off the loose end of the stretch wrap through one of the pallet openings, one of the fork openings, and that gives you somewhat of an anchor. And as you wrap, your first wrap goes around part of the pallet and the bottom case and then you overlap anywhere from half to a third and you work your way to the top.

[Id. at 20].

         Rugemer acknowledged that he does not know the condition of the pallet at issue before it was moved. [Id. at 23]. During the deposition, defense counsel showed Rugemer a photograph of a palletized load of Green Gas, which is Exhibit 7 to Brewer's deposition and reproduced in Rugemer's report. [Id., Doc. 53-1 at 27]. Rugemer stated that if he had received the pallet in that condition as demonstrated in Exhibit 7, he would have taken the pallet to someone who handles packaging and requested that the shrink wrap be straightened. [Doc. 57-1 at 23]. He stated that he would also want to see the bill of lading to determine if the driver noted any damage. [Id.]. He stated that he reviewed the bill of lading in this case and that the driver of the truck reported no damage to the shipment. [Id.]. He testified that drivers are supposed to note damage ...


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