United States District Court, E.D. Tennessee, Knoxville
CENTRAL TRANSPORT, LLC, and CROWN ENTERPRISES, INC., Plaintiffs,
THERMOFLUID TECHNOLOGIES, INC., Defendant.
MEMORANDUM AND ORDER
C. POPLIN UNITED STATES MAGISTRATE JUDGE
case is before the undersigned pursuant to 28 U.S.C. §
636, the Rules of this Court, and Standing Order 13-02.
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.
Court will first begin with the allegations in the Complaint
and then turn to the challenged opinions.
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.].
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].
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
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].
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].
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
[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].
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.].
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.].
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.
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.].
Rugemer (“Rugemer”) is a commercial
transportation specialist, who investigates and analyzes
commercial-transportation related accidents and incidents.
[Doc. 53-1 at 1].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]. 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
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]. The following
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.
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.]. He continued that based on his experience,
the shrink wrap was loose. [Id.].
testified regarding the acceptable method of securement as
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].
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 ...