Elmore v. Dixie Pipeline Co.

• Decision Date: 03 October 2017
• Docket Number: NO. 2015–CA–01499–COA,2015–CA–01499–COA
• Citation: 245 So.3d 500
• Parties: Edith Davis ELMORE, Appellant v. DIXIE PIPELINE COMPANY, Appellee
• Court: Mississippi Court of Appeals

245 So.3d 500

Edith Davis ELMORE, Appellant

v.DIXIE PIPELINE COMPANY, Appellee

NO. 2015–CA–01499–COA

Court of Appeals of Mississippi.

October 3, 2017

Rehearing Denied March 6, 2018

Certiorari Denied June 21, 2018

ATTORNEYS FOR APPELLANT: JOHN W. CHRISTOPHER, JAMES W. NOBLES JR.

ATTORNEYS FOR APPELLEE: JAMES G. HOUSE III, LAURA D. GOODSON

BEFORE GRIFFIS, P.J., FAIR AND GREENLEE, JJ.

GRIFFIS, P.J., FOR THE COURT:

¶ 1. Edith Davis Elmore appeals the exclusion of her expert witness and the entry of summary judgment on all asserted claims. Upon review, we find no error and affirm.

FACTS AND PROCEDURAL HISTORY

¶ 2. Dixie Pipeline Company ("Dixie") operates a buried pipeline through which liquid propane is transported. The pipeline, which was constructed in 1961, extends approximately 1,100 miles from Texas to North Carolina, and includes various sizes of pipe. The particular segment at issue consists of a 395–mile stretch of 12–inch-diameter pipe, which runs from the west side of the Mississippi River near Erwinville, Louisiana, eastward to Opelika, Alabama, and passes through Clarke County, Mississippi. Lone Star Steel Company manufactured the pipe using a low-frequency electric resistance welding (ERW) process.

¶ 3. In 1988 and 1989, the Pipeline and Hazardous Materials Safety Administration (PHMSA) issued an alert notice to all hazardous-liquid-propane operators who had in place ERW pipe manufactured before 1970. The notices advised of operational failures of pipeline constructed with ERW pipe manufactured prior to 1970. The notices included certain recommendations by the PHMSA. Neither notice required pipeline operators to cease operating pre–1970 manufactured ERW pipe, or remove and replace the pipe.

¶ 4. On November 1, 2007, the pipeline ruptured near Carmichael, Mississippi. As a result of the rupture, liquid propane was released, some of which vaporized and exploded. At the time of the explosion, Elmore owned a house located approximately 1.1 miles from the accident site. Elmore claims her house suffered structural damage as a result of the shockwaves from the explosion.

¶ 5. The National Transportation Safety Board (NTSB) investigated the pipeline rupture. The NTSB noted that the pipeline segment at issue was hydrostatically pressure tested in 1961, and again in 1984.¹ Additionally, in-line inspections were subsequently performed in 1998, 2005, and 2006. Based on the inspections, the NTSB determined that no defects or anomalies in the subject pipe joint could be correlated with the 2007 rupture. The NTSB ultimately concluded that "the probable cause" of the subject pipeline rupture "was the failure of a weld that caused the pipe to fracture along the longitudinal seam weld, a portion of the upstream girth weld, and portions of the adjacent pipe joints." Importantly, the NTSB concluded that the following were not factors in the rupture: corrosion, excavation damage, the controller's actions, or the operating conditions of the pipeline.

¶ 6. In her amended complaint, Elmore asserted claims of negligence, strict liability, and punitive damages against Dixie, as the operator of the pipeline. Following the agreed-upon discovery deadline, Elmore filed a motion to direct Dixie to produce the transcript of the corporate deposition taken in a case that involved the same pipeline rupture, but was litigated in Texas.² The circuit court denied the untimely motion.

¶ 7. Dixie subsequently filed motions for summary judgment on all claims asserted by Elmore. The circuit court granted summary judgment in favor of Dixie on the strict-liability and punitive-damages claims, but denied the motion as to Elmore's negligence claim.

¶ 8. Dixie further filed a motion to exclude the opinions and testimony of Elmore's expert witness, Dr. Kendall Clarke. Following a hearing, the circuit court granted the motion, in part, and excluded Dr. Clarke from offering opinion testimony regarding the standard of care for pipeline operators, or any violation of that standard of care by Dixie.

¶ 9. Prior to trial, Dixie filed a renewed motion for summary judgment on Elmore's negligence claim. On reconsideration, and in light of the partial exclusion of Dr. Clarke's testimony, the circuit court granted summary judgment as to Elmore's negligence claim. Elmore now appeals and argues the circuit court erroneously: (1) denied her motion to produce the transcript of the corporate deposition taken in the Texas litigation, (2) excluded Dr. Clarke, (3) granted summary judgment on her strict-liability claim, (4) granted summary judgment as to her negligence claim, and (5) granted summary judgment on her punitive-damages claim.

ANALYSIS

I. The Denial of the Production of the Corporate–Deposition Transcript

¶ 10. Elmore first argues the circuit court erroneously denied her "motion to direct [Dixie] to produce the corporate deposition taken in the Texas litigation." "[Circuit] courts are afforded broad discretion in discovery matters, and this Court will not overturn a [circuit] court's decision unless there is an abuse of discretion." Ashmore v. Miss. Authority on Educ. Television , 148 So.3d 977, 981 (¶ 9) (Miss. 2014).

¶ 11. On February 27, 2014, an agreed order extending case-scheduling deadlines was entered by the circuit court, which extended the discovery-completion date to March 28, 2014. This was the second extension entered by the circuit court to allow the parties to complete discovery. On April 15, 2014, almost three weeks after the expiration of the agreed-upon discovery deadline, Elmore filed the subject motion and sought the production of "a true and correct copy of the deposition [transcript], with all exhibits, given by representatives of Dixie in the referenced Texas litigation."

¶ 12. Prior to the agreed-upon discovery deadline, Elmore propounded written discovery to Dixie and deposed two corporate representatives of Dixie. At no time before the close of discovery did Elmore request Dixie to produce prior corporate depositions taken in Texas. In fact, Elmore acknowledged that a formal request was not made until the filing of the motion at issue, which was after the expiration of the discovery deadline.

¶ 13. The circuit court "has the authority and indeed the duty to maintain control of the docket and ensure the efficient disposal of court business." Douglas v. Burley , 134 So.3d 692, 699 (¶ 20) (Miss. 2012) (emphasis omitted) (citing Venton v. Beckham , 845 So.2d 676, 684 (¶ 25) (Miss. 2003) ). We find no abuse of discretion in the circuit court's denial of Elmore's untimely discovery motion.

II. The Exclusion of Dr. Clarke's Testimony

¶ 14. Elmore next argues the circuit court erroneously excluded the opinions and testimony of her expert, Dr. Kendall Clarke. "The standard of review for the admission or exclusion of expert testimony is abuse of discretion." Patterson v. Tibbs , 60 So.3d 742, 748 (¶ 19) (Miss. 2011).

"This Court should find error in the [circuit] court's decision to exclude expert testimony only if the decision was arbitrary or clearly erroneous." Id.

¶ 15. The circuit court excluded Dr. Clarke's opinion testimony regarding the standard of care of pipeline operators, and the alleged breach of that standard by Dixie. Rule 702 of the Mississippi Rules of Evidence stated³ :

If scientific, technical or other specialized knowledge will assist the trier of fact in understanding the evidence or determining a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training or education, may testify in the form of an opinion or otherwise if (1) the testimony is based upon sufficient facts or data, (2) the testimony is a product of reliable principles and methods, and (3) the witness has applied the principles and methods reliably to the facts of the case.

In Daubert v. Merrell Dow Pharmaceuticals, Inc. , 509 U.S. 579, 589, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993), the United States Supreme Court held that expert testimony must be relevant and reliable. Thus, "[w]hen determining whether expert testimony is admissible, our [circuit] judges should act as gatekeepers and must determine whether the proposed testimony meets the requirements of Rule 702 and Daubert 's relevance and reliability prongs." Patterson , 60 So.3d at 749 (¶ 22).

¶ 16. Elmore retained Dr. Clarke, a metallurgical engineer, to offer expert opinions and testimony regarding Dixie's alleged negligence in its operation of the pipeline. In formulating his opinions, Dr. Clarke relied upon the NTSB report, the American Petroleum Institute (API) Standards, and the American Society of Mechanical Engineers Standards. Dr. Clarke did not rely upon the federal safety regulations, including 49 C.F.R. § 195 (2015), "Transportation of Hazardous Liquids by Pipeline."

¶ 17. Elmore acknowledges that Dr. Clarke's opinions did not include a violation of the federal regulations. However, Elmore asserts that Dr. Clarke was not required to base his opinions upon the federal regulations and to opine whether or not the federal regulations had been violated since her case was "based on common-law tort claims" and not on the federal statute. We disagree.

¶ 18. The Dixie pipeline became subject to the federal safety regulations for hazardous liquid pipelines, codified in 49 C.F.R. § 195, upon enactment in 1969 by the U.S. Department of Transportation. Under these regulations, propane is classified as a highly volatile liquid. In his deposition, Dr. Clarke admitted that he had no familiarity with the federal regulations that govern integrity management for the pipeline. Additionally, Dr. Clarke admitted that he did not apply or consider those applicable federal regulations and standards in rendering his opinions in this matter. Instead, Dr. Clarke used "the API code because that applies in [his] business."

¶ 19. While the record indicates the pipeline was made of API-grade steel pipe and manufactured according to API standards, the pipe was not manufactured by Dixie. Instead, Dixie was the operator...