Morales v. E.D. Etnyre & Co.

• Decision Date: 17 June 2005
• Docket Number: No. CIV. 04-558 JB/WDS.,CIV. 04-558 JB/WDS.
• Citation: 382 F.Supp.2d 1252
• Parties: Robert MORALES, Angela K. Morales, Brandon R. Morales, Mary Ann Morales, and Tate W. Morales, Plaintiffs, v. E.D. ETNYRE & CO., Defendants.
• Court: U.S. District Court — District of New Mexico

382 F.Supp.2d 1252

Robert MORALES, Angela K. Morales, Brandon R. Morales, Mary Ann Morales, and Tate W. Morales, Plaintiffs, v. E.D. ETNYRE & CO., Defendants.

No. CIV. 04-558 JB/WDS.

United States District Court, D. New Mexico.

June 17, 2005.

COPYRIGHT MATERIAL OMITTED

Jerrald J. Roehl, The Roehl Law Firm, P.C., Albuquerque, NM, for the Plaintiffs.

Terry R. Guebert, Marcus E. Garcia, Valerie S. Reighard, Guebert, Bruckner & Bootes, P.C., Albuquerque, NM, for Defendant E.D. Etnyre & Co.

MEMORANDUM OPINION AND ORDER

BROWNING, District Judge.

THIS MATTER comes before the Court on Defendant E.D. Etnyre & Co.'s Motion to Prohibit the Opinion Testimony of Robert Puschinsky, P.E., Based Upon Daubert v. Merrell Dow Pharmaceuticals, Inc., and Motion for Summary Judgment, filed January 21, 2005 (Doc. 55). The Court held a hearing on this motion on February 24, 2005. The primary issues are: (i) whether Puschinsky's testimony is relevant and reliable under Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993); and (ii) whether, if Puschinsky's testimony is not relevant and reliable, the Court should enter summary judgment for Defendant E.D. Etnyre & Co. ("Etnyre"). Because the Court determines that Puschinsky's testimony meets Daubert v. Merrell Dow Pharmaceuticals, Inc.'s standards for the Plaintiffs' claims of negligent and/or defective design, the Court will deny Etnyre's motion in part, but will grant the motion as to the Plaintiffs' other claims.

FACTUAL BACKGROUND

On or about June 20, 2003, hot asphalt severely burned Plaintiff Robert Morales while he was operating an asphalt black topper road machine, model BT-HS, serial No. J-8367 ("Black Topper"). Etnyre manufactured the Black Topper and Defendant Road Machinery Company, Inc. ("Road Machinery") distributed it. Robert Morales, along with his wife, Angela K. Morales, and his children, Brandon R. Morales, Mary Ann Morales, and Tate W. Morales, filed suit against Etnyre, Road Machinery, and John Does 1-10.¹

PROCEDURAL BACKGROUND

1. The Complaint and Discovery.

On April 7, 2004, the Plaintiffs filed their Complaint for Personal Injuries against Etnyre and Road Machinery in negligence and strict liability for the design, manufacture, sale, maintenance, distribution, and marketing of the Black Topper. The Plaintiffs' Complaint contains three counts against the Defendants: negligence, strict product liability, and a claim for punitive damages. See Complaint ¶¶ 8, 10, and 12. The Initial Pretrial Report established a deadline of September 15, 2004 for the Plaintiff's disclosure of expert witnesses.

Pursuant to this deadline, the Plaintiffs retained and identified Puschinsky as their expert witness regarding the allegedly defective Black Topper. The Plaintiffs retained Puschinsky to assist the jury's understanding of their claims of product liability and negligence against the Defendants. The Plaintiffs have produced Puschinsky's four reports in discovery containing his opinions in this case. See Puschinsky's January 8, 2004 Report; Puschinsky's July 8, 2004 Report; Puschinsky's September 29, 2004 Report; Puschinsky's October 7, 2004 Report.

Defense counsel took Puschinsky's deposition on October 8, 2004 and questioned him about his reports. Etnyre contends that, in his deposition, Puschinsky stated that his opinions, as offered at his deposition, were final opinions. See Deposition of Bob Puschinsky at 155:7-17, taken October 8, 2004 (hereinafter "Puschinsky Depo."). The transcript of the deposition, however, shows that Puschinsky stated:

Q. Okay. Now, let me go back to my question, though. Do you have any other opinions not previously discussed here today and not contained in your report?

A. Not at this moment.

Id.

After that date, twenty depositions were taken, nine of which the Defendants took. Discovery in this matter ended on December 15, 2004. The Court did not set a time limit by which the parties had to file their Daubert motions.

In response to this motion, Puschinsky submitted an affidavit stating: (i) the Black Topper "is a very simple miniature processing plant on wheels;" (ii) his experience in refining and chemical plants is directly related to a Black Topper; (iii) the operations and maintenance manual requires the use of diesel fuel to clean the Black Topper, a fact that Etnyre disputes; and (iv) the operations and maintenance manual is deficient because it does not inform the user how many times to clean the Black Topper with diesel fuel. See Puschinsky's Aff. at ¶ 11, at 3-4.

2. Puschinsky's Qualifications.

Puschinsky's formal education consists of a Bachelor's Degree in Aeronautical Engineering. See Curriculum Vitae of Roberty W. Puschinsky at 2 (hereinafter "Puschinsky C.V."). Puschinsky earned his degree in 1957 after studying five years at the University of Minnesota. See id. Puschinsky is registered as a Professional Engineer in the State of Texas. See id.

Amoco Oil Co. employed Puschinsky for seventeen years, from 1974 to 1991, as a Maintenance Engineer, Maintenance Superintendent, Process Superintendent, and Operations Superintendent. See id. at 1-2. He was working at, and part of the time, in charge of, one of the largest refineries and processing plants in Texas. Puschinsky worked in Amoco's Texas City refinery, last working as the Operations Superintendent for its Acid and Alkylation Plant. See Puschinsky Depo. at 36:2-3; Puschinsky's C.V. at 2-3.

At Amoco, Puschinsky's experience involved responsibilities that relate to his expertise in this case, including: (i) working as a maintenance engineer; (ii) performing inspections of equipment failures; (iii) specifying repairs; (iv) designing failure avoidance improvements; and (v) supervising the proper training of employees to make sure jobs were carried out safely. See Puschinsky's C.V. at 2. While employed with Amoco, Puschinsky worked with trucks, such as vacuum trucks, which have similar functions and parts as the Black Topper that is the subject of this lawsuit. See Puschinsky Depo. at 32:20 — 33:3. During his time at Amoco, Puschinsky did hands-on operation of equipment during labor shortages; there were six months of union work stoppages, and Puschinsky physically operated and maintained the Ammonia and Coker Plants during 1974 and 1980. See Puschinsky Depo. at 36:12-19; Puschinsky C.V. at 3.

Etnyre contends that Puschinsky's primary expertise is limited to consultation and litigation support in the field of gas and petrochemical refineries. The Plaintiffs contend that his experience is broader. Puschinsky's consultation business is primarily in the area of refining, but not chemical refining plants. See Puschinsky Depo. at 25:1-6. Certainly Puschinsky is a consultant for major worldwide oil and chemical corporations, and assists them in enhancing the process and operation safety and performance of their plants, including process licensing. Puschinsky is a world-wide expert in safety of processing plants. He is also a consultant for manufacturing corporations. See Puschinsky C.V. at 2.

Puschinsky completes audits of plants for safe operation in accordance with American Petroleum Institute Recommended Practices. These audits include safety review of design and operation of refining plants, including piping and tanks. He has visited more than fifty refineries and chemical plants world-wide for processing and/or safety consultation or litigation support. See id. During 2004, he conducted safe operation audits of refineries in Sasolburg, South Africa; Paris, France; Marseille, France; Schwedt, Germany; and Stanlow, England. He is recognized as a leading expert in the processing and refinery plant field.

Road Machinery agrees that, in the field of refinery and processing plants, Puschinsky is an expert. Puschinsky is not, however, a safety engineer. Puschinsky has nonetheless worked on safety matters in a way similar to that a designated safety engineer would. He has been involved with safety issues his entire engineering career of more than forty-five years. See Puschinsky Aff. ¶ 5, at 1-2. Thus, it is fair to say that Puschinsky has experience in safety engineering.

He also worked as a Navy engineer. In addition, while working at McDonnell-Douglas, he was the engineer advisor on three space missions. See Puschinsky's C.V. at 3.

Puschinsky has taught courses in product safety and given seminars for corporations such as Phillips Petroleum Co., DuPont, and Allied Signal Corp. See Puschinsky Depo. at 31:19 — 32:4. Puschinsky is a significant contributor to and panel member for Phillips World-Wide HF Alkylation symposia. See Puschinsky's C.V. at 2. He has provided the Honeywell Corporation's HF Alkylation advisory service for its North American customers and has visited many refineries in this capacity. See id. Puschinsky is a certified instructor in hazard analysis techniques. See id.

Puschinsky is not a published author in subjects related to his field. See Puschinsky Depo. at 25:21-25. Puschinsky has, however, been a contributor to items published in his field. Puschinsky has been a contributor to several publications of the American Petroleum Institute, and has developed and presented a seminar for industry through that same Institute. See id. at 25:21 — 26:25; Puschinsky's C.V. at 2. His contributions include articles defining safe operations in plants, about how to perform safety studies, about the meaning of the Code of Federal Regulations, and about how an industry responds to a specific regulation. These articles were published in Refining Today, Oil and Gas Journal, EPA studies by the federal government, and American Petroleum Institute editions of recommended practices that set industry standards. See id.

As further proof of Puschinsky's recognition as a national expert in accident investigation and safe procedures in refineries and processing plants, Puschinsky has been an invited contributor to the Report to...