Gharda USA, Inc. v. Control Solutions, Inc.

Citation464 S.W.3d 338
Decision Date08 May 2015
Docket NumberNO. 12–0987,12–0987
PartiesGharda USA, Inc. and Gharda Chemicals, Ltd., Petitioners, v. Control Solutions, Inc., United Phosphorus, Inc., and Mark Boyd, Respondents
CourtSupreme Court of Texas

Charles W. Lyman, Jeffrey S. Patterson, John B. Wallace, Hartline Dacus Barger Dreyer LLP, Kevin H. Dubose, Robert B. Dubose, Alexander Dubose Jefferson & Townsend LLP, Houston, for Petitioner Gharda Chemicals, Ltd.

David Stephen Toy, Francis I. Spagnoletti, James T. Liston, Spagnoletti & Co., John P. Abbey, Tucker Taunton Snyder & Slade, Kevin H. Dubose, Robert B. Dubose, Alexander Dubose Jefferson & Townsend LLP, Houston, for Petitioner Gharda USA, Inc.

George Howard Lugrin, Jeffrey E. Fahys, Karen Klaas Milhollin, Neil E. Giles, Hall Maines Lugrin, P.C., Houston, for Respondents Control Solutions, Inc., United Phosphorus, Inc. and Mark Boyd.

Opinion

Justice Green delivered the opinion of the Court.

In complex litigation, parties often support their respective positions with expert testimony. Such expert testimony must be both relevant and based on a reliable foundation. Helena Chem. Co. v. Wilkins, 47 S.W.3d 486, 499 (Tex.2001). This case presents the question of whether interdependent opinion testimony from a series of four experts was reliable. The court of appeals held that each expert's individual testimony was reliable, and therefore the experts' collective testimony was reliable. 394 S.W.3d 127, 159, 164 (Tex.App.—Houston [1st Dist.] 2012). We hold that the testimony of all four experts is unreliable because the individual opinion testimony of at least two experts was unreliable and the remaining two experts based their opinions on the first two experts' unreliable opinions. Because all of the plaintiffs' expert testimony was unreliable, there was no evidence of an essential element of the plaintiffs' claims. Accordingly, we reverse the court of appeals' judgment and reinstate the trial court's judgment that the plaintiffs take nothing.

I. Factual and Procedural Background

This dispute arose out of a warehouse fire in Pasadena, Texas. At the time of the fire, Mark Boyd owned the warehouse and leased it to Control Solutions, Inc. Another company, United Phosphorus, Inc., stored materials in the warehouse. Control Solutions operated a blending facility that formulated insecticides and pesticides in the warehouse. One of the chemicals Control Solutions used in its formulations was chlorpyrifos technical (chlorpyrifos). Before Control Solutions could blend chlorpyrifos with other materials, it had to melt the chlorpyrifos using an industrial oven called a “hot box.” Control Solutions's hot box was located in the southwest quadrant of the warehouse. The melting process Control Solutions employed took twenty-four hours when the hot box was set at 180 degrees Fahrenheit. All told, numerous chemicals, including flammable solvents, were stored in the warehouse.

Gharda Chemicals, Ltd. and Gharda USA, Inc. (collectively, the Gharda defendants) supplied the chlorpyrifos that Control Solutions used at its blending facility. Gharda Chemicals manufactured the chlorpyrifos in India using a batch process—as opposed to a continual process—and utilized, among other “inert ingredients,” ethylene dichloride (EDC).1 While EDC was initially present in high quantities during the manufacturing process, Gharda Chemicals distilled each batch to remove nearly all of the EDC. When making a batch of chlorpyrifos, Gharda Chemicals tested each batch for contaminants and also retained samples of each batch so that it could test for impurities later. Ultimately, the manufacturing process was designed to produce a product that contained 99.3% chlorpyrifos and 0.7% inert ingredients. When the desired purity was reached, Gharda Chemicals packaged the chlorpyrifos into sealed fifty-five gallon drums. Gharda USA then imported the drums of chlorpyrifos and sold them to American companies.

A. The Fire

At about 1:00 p.m. on March 8, 2004, Control Solutions employees placed thirty-two drums of the Gharda defendants' chlorpyrifos in the hot box to be melted overnight. The drums remained in the hot box after the Control Solutions employees went home for the day. The last person to leave the warehouse was Howard Stoddard, vice president of operations for Control Solutions. Before he left at approximately 10:00 p.m., Stoddard conducted a walk-through examination of the warehouse to ensure that the facility was running normally, and concluded that it was. The next morning, Robert Blair, distribution manager for Control Solutions, was the first person to enter the facility. Blair was working in a building adjacent to the warehouse that contained the hot box when, at approximately 5:15 a.m., he heard a boom. Blair went to the warehouse to investigate but could not determine the boom's origination. The fire alarm sounded thirty or forty-five seconds after Blair heard the boom.

The fire department arrived shortly thereafter. The first responders entered through a door in the northwest quadrant of the warehouse. During interviews with fire origin investigators, the fire fighters reported that they saw flames to their right, near the southwest quadrant of the warehouse. Television news helicopters arrived and took video of the fire. The news helicopters recorded the fire fighters entering the warehouse, damage to a ridge vent on the roof in the area of the warehouse above the hot box, and the overall progression of the fire. The fire fighters decided to let the fire burn, and it spread to other portions of the warehouse. The northwest quadrant burned with such intensity that the steel beams supporting that quadrant failed, resulting in a partial collapse of the warehouse roof.

The fire consumed nearly everything inside the warehouse. However, either two or four unburned drums of the Gharda defendants' chlorpyrifos were found in the warehouse and were, for the most part, in “pristine condition.”

B. The Plaintiffs' Experts and Their Investigations and Testimony

At the time of the fire, Harold “Buddy” Rice was the lead investigator in the Harris County Fire Marshal's Office. Rice was the first fire origin investigator on the scene when he arrived at the warehouse about two hours after the fire began. The fire was still active at that time, so Rice's initial investigation was limited to photographing the warehouse's exterior and conducting interviews with fire fighters and Control Solutions personnel. When Rice first entered the warehouse to investigate the next day, he only investigated the interior of the warehouse twice in forty-five minute intervals. He spent half of the first interval and ten to fifteen minutes of the second interval investigating the hot box. Rice spent the remaining time investigating other portions of the warehouse, but he did not investigate the heavily burned northwest quadrant because it had collapsed. During his investigation, Rice observed burn patterns that led away from the hot box, bending of the hot box's hinges, distension of the hot box, and differential burning of several of the drums of chlorpyrifos within the hot box.2 Based on this investigation, Rice concluded that “there was a buildup of some sort of flammable vapors or something within—within that hot box that caused the explosion and fire.” However, Rice admitted that he did not know what the vapor could have been, how much vapor there was, or what source ignited the vapor. Rice also testified that he did not investigate any of these aspects of his theory.

Soon after the fire, Control Solutions began its own investigation into the cause. It retained Salvador “Sammy” Russo as a fire origin investigator. Russo first visited the burned warehouse six days after the fire. On this first visit, Russo interviewed Control Solutions personnel, determined the pre-fire contents of the warehouse, and inspected the exterior of the building. Russo had also previously reviewed the news video of the fire. On a subsequent visit, Russo investigated the entire interior of the warehouse and observed that the hot box's hinges appeared to have been pushed open, the latching mechanism on the hot box doors was bent, the roof above the hot box was distorted, there were fire patterns leading away from the hot box, and the drums within the hot box exhibited differential burning. Russo also observed the condition of the warehouse's and hot box's electrical systems.3

Part of Russo's duties as a fire origin inspector required him to conduct a chemical forensic analysis of the burned drums of chlorpyrifos. The analytical protocol Russo employed called for taking samples of both the solids and the volatile gases that remained within the burned drums of chlorpyrifos. To analyze the volatile gases, Russo numbered each drum, placed each drum into an overpack, placed an absorbent charcoal badge within the overpack, and sealed the overpack. After the charcoal badges and vapor content of the drums spent seventeen days in the overpacks, Russo removed them and sent them to be analyzed using gas chromatography

mass spectrometry (GC–MS). This protocol was designed to determine only whether a specific volatile gas was present in the burned drums of chlorpyrifos, but not to provide a quantitative measurement of the volatile gases detected. Russo began this sampling protocol of the volatile gases thirteen days after the fire. Despite taking samples of the solids, Russo never had those samples tested.

Based on his investigation, Russo concluded that the fire originated within the hot box, and, conversely, that the fire did not start outside of the hot box and spread into it. Specifically, Russo testified that an ignitable vapor within the hot box exploded and the ensuing fire spread throughout the warehouse. Like Rice, however, Russo could not testify as to what the alleged vapor was, the source of the vapor, the extent of the vapor, whether any vapor that existed was sufficient to reach...

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