494 F.3d 1337 (11th Cir. 2007), 06-14909, Proctor v. Fluor Enterprises, Inc.

Docket Nº:06-14909.
Citation:494 F.3d 1337
Party Name:Bobby PROCTOR, Plaintiff-Appellee, v. FLUOR ENTERPRISES, INC., Defendant-Appellant,
Case Date:August 13, 2007
Court:United States Courts of Appeals, Court of Appeals for the Eleventh Circuit

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494 F.3d 1337 (11th Cir. 2007)

Bobby PROCTOR, Plaintiff-Appellee,


FLUOR ENTERPRISES, INC., Defendant-Appellant,

No. 06-14909.

United States Court of Appeals, Eleventh Circuit.

August 13, 2007

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James Rebarchak, Kirkland Edward Reid, Miller, Hamilton, Snider & Odom, LLC, Mobile, AL, for Defendant-Appellant.

Glenda G. Cochran, Stephen J. Becker, Cochran & Associates, Birmingham, LA, for Proctor.

Appeal from the United States District Court for the Northern District of Alabama.

Before EDMONDSON, Chief Judge, HULL, Circuit Judge, and FORRESTER, [*]District Judge.

HULL, Circuit Judge:

In this diversity case, defendant Fluor Enterprises, Inc. ("Fluor") appeals the entry of judgment of nearly $2.5 million following a jury trial on plaintiff Bobby Proctor's negligence claim under Alabama law. Fluor contends that it is entitled to (1) judgment as a matter of law because Proctor failed to establish that Fluor breached a duty of care that proximately caused Proctor's injuries arising from a manufacturing plant accident or, alternatively, (2) a new trial based on the district court's erroneous decisions to exclude evidence on the borrowed servant doctrine and admit expert testimony on the cause of Proctor's stroke. After review and oral argument, we affirm the district court's denial of Fluor's motion for judgment as a matter of law but conclude that Fluor is entitled to a new trial.


Because this appeal involves issues about the sufficiency of the evidence, we first outline the evidence presented at trial.

A. Decatur Plant Accident

Plaintiff Proctor testified about the manufacturing plant accident and his subsequent injuries. Proctor worked at Solutia, Inc. ("Solutia") in its acrylic manufacturing plant in Decatur, Alabama. Proctor had worked at the plant for over thirty-five years, the last ten years as a senior operator. Proctor, as a Solutia senior operator, oversaw six "TM" machines, which are a series of connected tubs that contain chemical solution baths used in the manufacture of acrylic fiber. Proctor was responsible for maintaining quality control by recording readings related to temperature, pressure, and speed of the machines.

On January 30, 2002, Solutia's night supervisor at its Decatur plant, John Peck, told Proctor that one of the TM machines had fluctuating pressure problems and that Proctor should call an electrical and instrumentation ("E&I") technician to troubleshoot the machine. E&I technicians were responsible for diagnosing problems and making repairs to the machines. Solutia had contracted with Fluor, an engineering and construction contractor, to provide construction, maintenance, and engineering technicians to Solutia.

Proctor radioed for E&I technicians, and Darrell Terry and Charles Lawrence soon arrived. Terry was a direct Solutia employee, and Lawrence was a Fluor contract employee working full time at Solutia's Decatur plant. Lawrence had responded to Proctor's requests for an E&I technician numerous times and carried a manual temperature probe. Proctor had witnessed Lawrence take a manual temperature of the solution bath in troubleshooting TM machines approximately a hundred times.

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After troubleshooting the machine, Lawrence told Proctor that the vortex breaker in the TM machine was clogged and that Proctor needed to clean it. Proctor had previously checked vortex breakers for pluggage over a hundred times, and he discovered that the breaker was actually clogged only twenty percent of those times.

Based on Lawrence's diagnosis, Proctor prepared to check the solution bath for pluggage. Proctor put on a neoprene glove, a metallic sleeve, and a rubber glove to protect himself from the hot liquid bath. Proctor noticed that the temperature controller on the TM machine read 96 degrees Celsius, one degree below the desired temperature and four degrees below the solution bath's boiling point of 100 degrees Celsius. Proctor reduced the pressure and temperature on the control panel about twenty percent. According to Proctor, the solution bath was not boiling out or spilling. As Proctor reached into the bath, the solution bath vaporized and blew out over him, causing second-degree burns over twenty percent of Proctor's body. Proctor testified that he had never seen a similar accident during his tenure as a senior operator. Proctor was rushed first to a local hospital and then to a burn unit in Birmingham, where he remained for twelve days.

Peck, Solutia's night supervisor who reported the TM machine malfunction to Proctor, testified that E&I technicians carry manual temperature probes with them and measure the solution bath temperature when troubleshooting TM machines. Peck previously had seen Lawrence measure the bath temperature when troubleshooting pressure problems on TM machines.

Lawrence testified that after receiving Proctor's request for troubleshooting, he first checked the liquid level in the solution bath and found no problem. Lawrence checked the pressure indicator and then walked down to the basement to inspect the machine pumps and pipes. Lawrence had "never seen the pipes shake like they were shaking" and called for Terry to join him in the basement. Based on this violent shaking, Lawrence concluded that the pump was cavitating. Lawrence returned upstairs and informed Proctor that, in his opinion, the vortex breaker was clogged and needed cleaning. Lawrence admitted that he never took a manual temperature of the solution bath. Lawrence had taken a manual temperature of the solution bath as part of his troubleshooting duties on over a hundred occasions, but he claimed that he never took a temperature when troubleshooting a pressure problem.

Proctor also presented the testimony of Scott Curry, an E&I technician at Solutia's Decatur plant. Curry testified that E&I technicians are responsible for troubleshooting and diagnosing problems with the TM machines and that senior operators correct problems based on the E&I technicians' diagnoses. According to Curry, the three potential causes of pump cavitation are low liquid level, improper temperature, and pluggage. When Curry troubleshoots a pressure problem, he first checks the liquid level of the bath and the pressure gauges and then takes a manual temperature of the solution bath using a digital thermometer that every E&I technician carries. If the liquid and temperature levels are correct, Curry concludes that there is pluggage in the machine. Curry confirmed that there was no written procedure on how to troubleshoot a TM machine.

Dr. Marvin McKinley, Ph.D., testified as Proctor's expert witness on the cause of the accident. Dr. McKinley opined that the accident occurred because the temperature controller failed and overheated the solution. The solution then vaporized, and

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the excess temperature caused the solution to blow out from the pump. Dr. McKinley identified the three causes of pump cavitation as low liquid level, high temperature, and an obstruction in the machine. Dr. McKinley claimed that the "logical progression" to troubleshoot pump cavitation would be to check the liquid and temperature level first because these potential causes were easy to detect, while a clog is more difficult to uncover. According to Dr. McKinley, had Lawrence used his probe thermometer to perform a manual check on the TM machine's temperature, the excessive temperature would have been discovered and the accident could have been avoided.

Proctor also introduced into evidence a shift report from the Decatur plant on February 1, 2002, the first day in which the malfunctioning TM machine was restarted after the accident. This shift report stated that the machine's pumps began cavitating again. Solutia personnel determined that the temperature controller was malfunctioning, causing the actual bath temperature to be 101 degrees Celsius, which was four degrees higher than the controller set point. No clog in the vortex breaker was noted.

Fluor called Terry, who worked with Lawrence as an E&I technician, as its witness. Terry described his efforts to troubleshoot the malfunctioning TM machine at the time of the accident. When Terry joined Lawrence in the basement, he noticed that the pumps were vibrating more violently than he had ever seen them vibrate. After consulting with Lawrence and a mechanic, Terry returned upstairs and told Proctor he was going to get a hook to check for a clog in the solution bath. Terry claimed that he did not know at the time that excess temperature could cause the pump cavitation, but he conceded that he now knows that temperature is a possible cause.

B. Medical Evidence

Proctor described his burn treatment at the Birmingham hospital. During his twelve-day hospital stay, Proctor was wrapped in bandages and underwent "extremely" painful treatment. Dr. James M. Cross, M.D., the medical director of the Birmingham burn unit, testified that Proctor suffered scalding burns over approximately twenty percent of his body and was in constant pain during his entire hospital stay. Proctor underwent daily hydrotherapy, a painful process that washed off loose skin from the burns. Dr. Cross prescribed physical therapy after the hospitalization.

Following his release from the hospital, Proctor was confined to his bed at home for three to four weeks. By March, the pain from Proctor's burns had mostly gone away, but he testified that he still suffers blisters and irritation from the burns. Proctor continued a regular course of outpatient treatment for his burns and physical and occupational therapy from soon after his February 11 hospital discharge until April 8, 2002. Proctor suffered a stroke on April 10, 2002. After several days of hospitalization, Proctor underwent physical, speech, and...

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