Strong v. E. I. DuPont de Nemours Co., Inc.
| Decision Date | 18 December 1981 |
| Docket Number | 81-1283,Nos. 81-1488,s. 81-1488 |
| Citation | 667 F.2d 682 |
| Parties | 9 Fed. R. Evid. Serv. 1247 Bessie J. STRONG, Administratrix of the Estate of Carl R. Strong, deceased, Appellant, v. E. I. DuPONT de NEMOURS CO., INC., a corporation, Appellee, Nebraska Natural Gas Co., a corporation, Norton McMurray Manufacturing Company, a corporation, and Louise T. Hammond. Bessie J. STRONG, Administratrix of the Estate of Carl R. Strong, deceased, Appellant, v. E. I. DuPONT de NEMOURS CO., INC., a corporation, Nebraska Natural Gas Co., a corporation, Norton McMurray Manufacturing Company, a corporation, Appellee, Louise T. Hammond. |
| Court | U.S. Court of Appeals — Eighth Circuit |
Joseph P. Cashen, argued, Kennedy, Holland, Delacy & Svoboda, Omaha, Neb., for E. I. Du Pont de Nemours Co.
Lyle E. Strom, argued, Gerald L. Friedrichsen, Fitzgerald, Brown, Leahy, Strom, Schorr & Barmettler, Omaha, Neb., for Norton McMurray Mfg. Co.
Stephen A. Davis, argued, and Terry J. Grennan of Cassem, Tierney, Adams, Gotch & Douglas, Omaha, Neb., for appellant.
Before BRIGHT and ROSS, Circuit Judges, and LARSON, * Senior District Judge.
Bessie R. Strong, Administratrix of the Estate of Carl R. Strong, her deceased husband, brought actions sounding in negligence, strict liability, express warranty, and implied warranty in connection with the death of Mr. Strong. Mrs. Strong appeals from the district court's 1 denial of a new trial following a directed verdict for defendant Norton McMurray Manufacturing Company (Norton McMurray) and denial of a new trial following a jury verdict for defendant E. I. DuPont de Nemours Company (DuPont). We affirm.
On January 10, 1976, an explosion destroyed the Pathfinder Hotel at the intersection of Sixth and Broad Streets in downtown Fremont, Nebraska, and killed appellant's husband. Mr. Strong, a Construction Supervisor in the Fremont area for the Nebraska Natural Gas Company (NNG), was investigating a report of a gas odor in the hotel. A length of two-inch Adyl "A" plastic pipe, containing a metal insert stiffener, both manufactured by DuPont and sold to NNG, pulled from a connecting device called a compression coupling, manufactured by Norton McMurray and sold to NNG. The pull-out was caused by shrinkage in the plastic pipe due to cold, and the explosion occurred when gas migrated to the nearby hotel basement.
NNG began using plastic pipe as a substitute for metal pipe in 1972. The company connected lengths of DuPont plastic pipe to existing metal lines with compression couplings made by Norton McMurray and other manufacturers. Natural gas utilities, including NNG, have long used compression couplings to connect steel pipes to steel. A compression coupling is a metal cylinder, threaded on each end, and fitted with nuts. The ends of the pipes to be joined are inserted into the coupling, the nuts are tightened, and elastic tapered washers are thereby forced against the pipe creating a gas-tight seal. When compression couplings are used to join plastic pipes, metal stiffeners such as those manufactured by DuPont are inserted to keep the pipes from collapsing.
Plaintiff contends that DuPont and Norton McMurray failed accurately or adequately to warn NNG that a two-inch plastic pipe connected to a steel pipe by means of a compression coupling would not withstand longitudinal forces as the plastic pipe contracted and that "pull-out" would occur at the joint. 2 The risk of pull-out can be reduced by "anchoring" the pipe or by using "locking-type" compression couplings that are specially designed to withstand longitudinal forces.
Following the directions of Mr. Strong, NNG employees installed the plastic pipe and compression coupling at Sixth and Broad Streets in June of 1974. Mr. Strong personally inspected the connection before the workers buried it. Prior to the pull-out and explosion that killed him, Mr. Strong was aware of at least two other incidents involving pull-outs of plastic pipes from compression couplings. On November 29, 1974, Mr. Strong uncovered a pull-out at Sixth and C Streets in Fremont. Despite this incident, he conducted no tests or investigations to determine the safety of connecting two-inch plastic pipe with compression couplings. Also, on the night before the fatal explosion he was part of a crew that discovered a pull-out at Fifth and D Streets in Fremont.
Natural gas distribution systems are subject to both Federal and State regulation. NNG officials admitted at trial that their company is governed by the standards and regulations promulgated pursuant to the Natural Gas Pipeline Safety Act of 1968, Pub.L. 90-481, 82 Stat. 720 (1968), 49 U.S.C. §§ 1671 et seq. (1976). These standards require builders of natural gas pipelines to allow for thermal contraction and to install connections that will withstand pull-out. The regulations also require the preparation of a "procedure manual," and NNG complied with this regulation in June 1973. The NNG handbook stipulates that a locking-type compression coupling such as a "Posihold" or "lock stiffener" should have been used at Sixth and Broad Streets rather than the standard coupling that was employed. Employees who worked under plaintiff's decedent testified that they were unaware of both the regulations governing natural gas transportation and the NNG handbook.
A DuPont sales representative first introduced NNG to plastic pipe in 1972. In 1972, 1973, 1974, and 1975 DuPont sales representatives held training sessions for NNG employees and stated that plastic pipe could be connected with compression couplings. There is evidence that Mr. Strong attended a number of these sessions, that at least two of the sessions included the showing of DuPont films depicting the connection of plastic pipes with compression couplings, and that at least two sessions included demonstrations by the DuPont representatives of the procedures for making such connections. There was no mention of the pull-out problem at any of the sessions, although there was testimony at trial indicating that the representatives were aware of the hazard. The record also shows that a DuPont representative supervised the connection of the first plastic pipe in Fremont with a Norton McMurray coupling and that another representative recommended plastic pipe as a safe replacement for downtown steel lines.
Over the years DuPont issued a variety of printed instructions and technical information to NNG. A number of these bulletins state that compression couplings can be used with plastic pipe, although Bulletin 680 captioned "Technical Data Sheet" notes the pull-out problem. NNG possessed this item prior to the installation of the coupling at Sixth and Broad. In 1975, prior to the pull-out at that intersection, DuPont issued revised bulletins to NNG warning of thermal contraction and of the need to anchor plastic pipes joined with compression couplings. The company also sent a newsletter to NNG in 1975 that discusses the need for anchoring, but none of the NNG employees who testified at trial said that they had read the newsletter.
The contacts between Norton McMurray and NNG were much less extensive than those between DuPont and NNG. There is conflicting evidence in the record on whether or not any Norton McMurray personnel actually knew that NNG used plastic pipe. The Norton McMurray catalog received by NNG did not include a warning of the potential pull-out problem along with its listing of the kind of compression coupling used at Sixth and Broad. The catalog did, however, list the availability of a locking-type compression coupling that was designed to resist pull-out, and in 1975 Norton McMurray provided NNG with a sample of this lock stiffener coupling. At no time did a Norton McMurray sales representative discuss the pull-out hazard with NNG. There is evidence in the record that Norton McMurray was aware of the problem, but that the company instructed its sales personnel not to discuss pull-out with customers unless they raised the topic.
The late Honorable Robert V. Denney, Judge of the United States District Court for the District of Nebraska, conducted a month long jury trial on plaintiff's claims. Judge Denney refused to allow an expert witness called by plaintiff to testify on the adequacy of the warnings and instructions in the DuPont films and printed materials and in the Norton McMurray catalog. Judge Denney granted Norton McMurray's motion for a directed verdict at the close of plaintiff's evidence and denied plaintiff's subsequent motion for a new trial. Judge Denney granted DuPont's motion to dismiss the causes of action based on express and implied warranty and refused to read plaintiff's proposed instruction on misrepresentation. The jury found for DuPont on the remaining claims of strict liability and negligence and the court denied plaintiff's motion for a new trial. In this appeal plaintiff argues that the court erred in excluding expert testimony, in granting Norton McMurray's motion for a directed verdict, in dismissing the express warranty claim against DuPont, and in refusing to read the instruction on misrepresentation.
Plaintiff called as her expert witness Robert F. Harrison, an engineer who has had experience investigating fires and explosions and who investigated the explosion in this case soon after it occurred. Defendants objected to a number of questions that plaintiff posed to Harrison, and the court sustained the objections. In offers of proof Harrison testified that in his opinion the various communications from DuPont and Norton McMurray to NNG did not provide adequate warnings and instructions. In particular, he stated that the lack of adequate warnings and instructions constituted defects which made the products unreasonably dangerous.
Under Fed.R.Evid. 704 an expert may render an opinion on an ultimate issue, but the testimony must be useful...
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