Triton Energy Corp. v. Square D Co.

Decision Date27 October 1995
Docket Number94-16132,Nos. 94-15544,94-15588 and 94-16130,s. 94-15544
Citation68 F.3d 1216
PartiesProd.Liab.Rep. (CCH) P 14,401, 95 Cal. Daily Op. Serv. 8394, 95 Daily Journal D.A.R. 14,480 TRITON ENERGY CORPORATION, a Texas Corporation; Page Airport Services, Inc., a Nevada Corporation, Plaintiffs, and Continental Loss Adjusting, Inc., a New Hampshire Corporation, Intervenor-Appellant, v. SQUARE D COMPANY, Defendant-Appellee. TRITON ENERGY CORPORATION, a Texas Corporation; Page Airport Services, Inc., a Nevada Corporation, Plaintiffs-Appellants, v. SQUARE D COMPANY, Defendant-Appellee.
CourtU.S. Court of Appeals — Ninth Circuit

J. Albert Kroemer, Charles H. Smith, Smith & Moore, Dallas, Texas, and Daniel F. Polsenberg, Beckley, Singleton, De Lanoy David K. Rosequist, Bell and Young, Ltd., Las Vegas, Nevada, for intervenor-appellant.

Jemison & List, Las Vegas, Nevada, for plaintiffs-appellants.

Laurie J. Nicholson, Thompson, Hine and Flory, Dayton, Ohio, and Kathleen J. England, England & Associates, Las Vegas, Nevada, for defendant-appellee.

Appeals from the United States District Court for the District of Nevada.

Before: SNEED, KOZINSKI, and NOONAN, Circuit Judges.

SNEED, Circuit Judge:

Triton Energy Corporation, Page Airport Services, Inc., and Continental Loss Adjusting, Inc. (Triton) appeal the district court's final judgment which granted Square D Company's motion for summary judgment and denied Triton's motion to alter or amend. We affirm the district court's grant of summary judgment. 1

I. FACTS & PROCEEDINGS BELOW

The circumstances of this case are quite unusual. It begins with a fire in the Hughes Hangar in Las Vegas, Nevada, continues with inefficient fire inspectors, the razing of the fire-damaged hangar because of asbestos problems, several experts on the causes of the fire, and ends with a still missing circuit breaker allegedly manufactured by Square D Company several decades ago. It was and remains an unsolved mystery. The facts, more precisely stated, are as follows.

A. The Fire and Investigation

On October 9, 1989, a fire in the Hughes Hangar extensively damaged several aircraft as well as the hangar itself. Triton leased the hangar from Clark County, Nevada, and operated an aircraft maintenance business. Immediately following the fire, Clark County Fire Department investigators reported that the probable cause was an electrical malfunction in the lighting circuits of the supervisor's office.

Lee Albright, a fire investigator retained by Triton's insurer, located what he believed to be the area of origin of the fire in the ceiling lighting circuit in the supervisor's office. Albright, in his deposition, stated that he and a Hughes employee, Dennis Rasmussen, traced the wiring in the conduit above the office to three specific Square D-manufactured circuit breakers located on the left side of the hallway panel. Rasmussen stated in his deposition that he tested each of the circuit breakers on the left side of the panel and discovered one circuit breaker which indicated "continuity," i.e., the breaker was "on," allowing current to pass through it. Albright took photographs of Rasmussen performing the continuity test, which showed that all of the circuit breakers, with the exception of one, had tripped to the off position. According to Rasmussen, Albright then removed the following items: the circuit breaker that appeared to be "on" (the fourth circuit breaker from the bottom to which a wire was traced), all of the connecting conduits, and one light fixture from the south side of the supervisor's office. Albright retained this evidence for safekeeping. Shortly after the evidence was removed, asbestos was detected in the hangar and access was restricted.

B. The Testing of the Circuit Breaker

On January 22, 1990, Square D was notified of the fire and the allegations concerning its circuit breaker. Square D and Triton arranged for a testing of the circuit breaker on June 12, 1990, although the test was not actually carried out until October 4, 1990. The testing of Square D's circuit breaker in the presence of the parties revealed that the breaker was not defective. Months later, one of Triton's attorneys contacted Albright

                and asked if it was possible that he had removed the wrong circuit breaker.  Albright stated in his deposition that he reexamined the photographs taken before he had removed the circuit breaker and informed the Triton attorneys that "we didn't take the [circuit breaker] that we had tested and that was in the on position."  (Intervenor-Appellant's Excerpts of Record (AER) at 168.)   The photographs of the circuit panel showed that the breaker in the "on" position was located in the fifth position from the bottom to which wiring in the conduit had been traced.  The circuit breaker Albright removed, which was tested by the parties, was located, as mentioned above, in the fourth position from the bottom
                
C. The Demolition of the Hangar

The cleanup and demolition of the hangar because of asbestos contamination began on March 1, 1990, and was completed in June 1990. According to Square D, it learned of the hangar's demolition only after the fact on July 9, 1990. Because Triton and the insurance companies were under the false assumption that Albright had removed the defective circuit breaker, neither the panel box nor any of the other circuit breakers were salvaged prior to the hangar's demolition. Consequently, Triton was left without the most critical piece of evidence--the allegedly defective Square D circuit breaker.

D. Triton's Case

Triton brought this action in state court on October 8, 1991, stating causes of action for breach of warranties, negligence and strict liability. Square D removed the action to the district court and Continental Loss Adjusting, Inc., a subrogated insurer which had paid Clark County pursuant to a property damage policy, intervened as plaintiff.

After lengthy discovery lasting some eighteen months, the evidence regarding the missing circuit breaker essentially consisted of opposing expert opinion. Triton's expert was Douglas Bennett. Relying on the testing conducted by Albright and Rasmussen, and a photograph taken by the Fire Department, Bennett stated:

The handle is clearly in the "on" position, not in the trip position. Unless--in this particular case, unless there is a defect in the breaker, it hasn't tripped.... [I]t's my conclusion, based on all the evidence, that this breaker didn't trip. (Appellant's Excerpts of Record (ER) at 180, 182.)

Square D's expert, Edward Dessert, differed. His opinion was that the failure of the handle to move to the tripped position did not mean the breaker had failed to trip. Dessert stated:

[T]he breaker can and will "trip" properly and the handle may not move to the fully tripped position. In other words, the fact that the handle is not in the fully tripped position is not indicative that the internal automatic mechanism of the breaker has not "tripped." (AER at 101-02.)

To establish that the missing circuit breaker caused the fire, Bennett opined that

[i]n the context of the evidence presented in this case, I have concluded that it is highly improbable for a properly operating circuit breaker to be able to heat the conduit to ignition temperature. Therefore, a properly operating circuit breaker would not have allowed this fire to be started. (ER at 135-36.)

Bennett also opined that the circuit breaker was defective at the time it left Square D. 2 He stated that the missing circuit breaker contained a design or manufacturing defect. Bennett concluded that

the most probable failure mechanism [in this case] is a blockage of the internal operating mechanism of the circuit breaker by a foreign object, most probably a piece of the case or the fiber slide.... [A]s it relates to the fiber slide, I think that's clearly a design defect. As it relates to the chipping of the case, that may be a manufacturing defect. (AER at 677, 679.)

Bennett gave this as the basis for the foregoing opinion I think primarily based on the deposition of Mr. Dessert that I attended wherein he described the numerous modifications that had been made with the case, both in material and molding characteristics, and also the significant body of information concerning the propensity of the slide to break and become dislodged within the cavity or the body of the circuit breaker. (AER at 677.)

Square D offered Dessert's expert opinion to refute Bennett's design and manufacturing defect theory. Dessert stated:

I have never seen a Square D circuit breaker returned from the field where the circuit breaker was prevented from automatically tripping by either a loose chip from the case or a broken fiber slide. I have seen circuit breakers returned from the field that contained broken fiber slides but this condition ... would not and has not prevented any circuit breaker from performing its designed automatic trip function. (AER at 103.)

Neither party offered evidence as to whether the allegedly defective circuit breaker had been damaged in the more than twenty year period since it left Square D's plant.

E. The District Court's Disposition

Square D filed a motion to dismiss, or alternatively, for summary judgment. Square D argued that the case should be dismissed because Triton had allowed critical evidence to be destroyed. Square D also argued for the preclusion of Triton's expert testimony because of evidence spoliation and, based on such preclusion, to grant summary judgment because no genuine issues of material fact would remain for trial. The district court granted Square D's summary judgment motion and denied Triton's motion to alter or amend. The district court, without addressing the spoliation issue, ruled that Triton had failed to show a genuine issue of material fact with regard to whether the defect in the circuit breaker existed when it left the Square D plant. The district court...

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