Zuzula v. Abb Power T & D Co., Inc.

• Decision Date: 03 June 2003
• Docket Number: No. 01-10082-BC.,01-10082-BC.
• Citation: 267 F.Supp.2d 703
• Parties: Kim ZUZULA, Personal Representative of the Estate of Steven Zuzula, Deceased, Plaintiff, v. ABB POWER T & D COMPANY, INC., Defendant.
• Court: U.S. District Court — Eastern District of Michigan

267 F.Supp.2d 703

Kim ZUZULA, Personal Representative of the Estate of Steven Zuzula, Deceased, Plaintiff, v. ABB POWER T & D COMPANY, INC., Defendant.

No. 01-10082-BC.

United States District Court, E.D. Michigan, Northern Division.

June 3, 2003.

COPYRIGHT MATERIAL OMITTED

Paul M. Purcell, Purcell, Tunison, Karl J. Weyand, Jr., Grimaldi, Pearson, Saginaw, MI, for Plaintiff.

Dennis M. Goebel, Harvey Kruse, Julie E. Nichols, Troy, MI, for Defendants.

OPINION AND ORDER DENYING MOTIONS BY PLAINTIFF AND DEFENDANT TO EXCLUDE TESTIMONY FROM EXPERT WITNESSES

LAWSON, District Judge.

The parties have each filed a motion to exclude the testimony of the other party's expert witness who each intend to offer opinion testimony on the merits of a design and a theory of causation in this products liability case arising from the death of Steven Zuzula. Zuzula was electrocuted on February 18, 1999 while installing an industrial fuse in high-voltage electrical switching gear designed and manufactured by the defendant, ABB Power T & D Company, Inc. At the time of the accident, Zuzula worked for a power plant, Midland Cogeneration Venture ("MCV"), which owned and maintained the electrical switching gear. The Court has reviewed the reports submitted by the respective witnesses pursuant to Federal Rule of Civil Procedure 26(a)(2) together with their depositions, and has heard the arguments of the parties through their respective counsel in open court on October 23, 2002. The Court finds that the parties have submitted sufficient information to permit the Court to adjudicate the motions. See Greenwell v. Boatturight, 184 F.3d 492, 498 (6th Cir.1999) (holding that the district court need not conduct a separate evidentiary hearing to adjudicate a so-called Daubert motion). The Court concludes that the parties each have established an adequate foundation according to Federal Rules of Evidence 104 and 702 and the applicable decisional authority, and therefore the Court will deny both motions to preclude the respective witnesses from testifying.

I

MCV operates a plant in Midland, Michigan that generates electrical power for consumption by industrial facilities. In 1987-88, MCV purchased eleven industrial power generation units from an ABB affiliate. These units consist of eleven large generators and their associated equipment, which includes high-voltage switches, transformers, electrical boxes, fuses, and other high-voltage electrical components. Each power generation unit has a "DD module"—a four-drawer, high-voltage, metal-clad cubicle with high-voltage switches and high-voltage fuses. The purpose of the DD switching gear is to connect its generator to power lines which carry electricity to a transformer that, in turn, sends power out of the plant, and to take the generator off line when required.

On February 4, 1999, generator unit 14 was taken off line for servicing. Zuzula's co-worker, Michael Stahr, removed all of the fuses from the four drawers of power generation unit 14's DD module. Stahr then left a red tag on the door—an "A" order—indicating that the unit had been taken out of service. According to plant safety rules, a written authorization (another "A" or "B" order) was required before the door and the drawer to the fuse holders could be moved or altered. On February 18, 1999, Michael Bell, another MCV employee, went to reactivate the unit 14 DD module by installing fuses in each drawer. Bell was reinstalling fuses in the west side of the DD module and Zuzula went to install fuses on the east side. Zuzula was electrocuted and killed while replacing the fuses. No one appears to have witnessed the accident.

Unit 14's DD module is located out-of-doors. Two weather doors enclose the Unit 14 cabinet in which the fuse drawers sit. In order to gain access to the "fuse busses" inside the drawers, the two weather doors must be swung open. Then, two spring-loaded handles must be partially rotated. The handles each release a latch that is secured in a slot cut into an angleiron rail on which the drawer slides. The operator is then able to pull the drawer forward, which disengages it from the energized stabs in the rear of the console. The operator must pull the drawer out far enough so that the latches fall into a forward slot cut into the rails, preventing the drawer from moving back toward the energized stabs. Once the drawer is fully forward, the operator, using a key, can open the access door to the fuse busses. The key not only turns the door lock, but also rotates a half-moon-shaped disc in place which also is intended to prevent the drawer from sliding back toward the power source. The disc is mounted on the drawer so that it travels along adjacent to the rail, making it impossible to turn—and the fuse buss access door impossible to open— unless the drawer is pulled to the fullforward-and-latched position. When the drawer is pulled out, the weather doors cannot be closed.

Like other modules in Unit 14, the DD module contains two red fuse busses toward the back of the module. Tubular fuses connect to the front of the busses. In order to install the fuses, the maintenance worker must push inward toward the back of the module and against the fuse busses. It has been suggested that spare fuses were stored in a compartment below the fuse buss drawer, which is not accessible when the fuse buss drawer is pulled out.

Evidence from the accident scene, including photographs of the DD module and fuse buss drawer, show that the disc attached to the key lock was out of place following Steven Zuzula's electrocution. The disc's rotation is limited by a small metal stud attached to a spring plate adjacent to the disc. The stud is aligned with a slot in the disc that, when properly functioning, prevents the disc's full rotation. However, after the accident, the stud was out of place, allowing the disc to rotate freely, with the effect that the key lock could be turned and the fuse buss access door opened without the drawer being pulled to its full-forward-and-locked position. In other words, with the disc mechanism in this condition, access to the fuse buss could be had with the drawer in its energized position, or with the drawer moving freely on its rails so that when an operator exerted the force necessary to snap the fuse into place he could push the drawer into the energized stabs in the back of the console.

The plaintiff has presented the testimony of John Fagan, who offers an opinion that the fuse buss drawer mechanism and interlock system was defectively designed. Fagan also provides his opinion as to how the accident occurred and how Steven Zuzula was electrocuted. The defendant counters with the testimony of Frank A. Denbrock, who opines that the unit was adequately designed in accordance with the state of the art at the time, and that the accident was caused by someone, perhaps the plaintiffs decedent, intentionally bypassing the redundant mechanical interlocking devices.

A.

The plaintiffs expert, John Fagan, is a professor of electrical engineering at the University of Oklahoma, where he has taught that subject for twenty-seven years. He is the holder of thirteen industrial patents on a variety of mechanical and electrical inventions. Prior to joining the university, Fagan was a design engineer at Mobil Oil from 1964 to 1967, where he designed nuclear magnetic resonance analysis equipment. Most of his time there was spent analyzing geological samples to determine the likelihood of oil. Fagan claims to have worked with high voltage equipment carrying about 10 kilovolts while at Mobile.

Fagan worked for Texas Instruments from 1967 to 1968. There, he designed the APS 115 radar, which the company then sold to the Navy for anti-submarine aircraft. This job did not involve high-voltage machinery. After one year at Texas Instruments, Fagan joined the United States Air Force as a design and development engineer. In this position, he worked on the control systems aboard military aircraft that involved power switching and cut-outs, but no high-voltage systems.

Fagan claimed to have worked on power-generating equipment similar to the machinery involved in this case while in Saudi Arabia, although little detail is provided as to what he was doing there. He also designed a high-voltage piece of equipment for the bakery industry, which is now sold to large commercial bakers throughout the United States. That item, called the Hydraplated Oiler System, "is a piece of equipment that is used in commercial bakeries that uses high voltage electricity to plate the bread pans with oil prior to ... the dough piece being put in it." Fagan Dep. at 71. The machine uses 25,000 volts of electricity. All of Fagan's other patents and designs involve pressure equipment, additional baking equipment, hydraulics, and temperature measurement in hostile environments.

In order to formulate his opinions in this case, Fagan inspected and photographed the DD module in Unit 14 at MCV; read the depositions of nine witnesses and accompanying exhibits; reviewed photographs of the equipment taken shortly after the accident; reviewed the reports of the accident from MCV and OSHA; reviewed the equipment manuals, plant operating procedures, and the decedent's training records; and inspected two pieces of analogous high-voltage switching equipment manufactured by Federal Pacific and General Electric, respectively, at two power generating facilities in Oklahoma. These later inspections occurred serendipitously when Professor Fagan was taking his electrical engineering students on a tour of power generating facilities as part of his course of instruction to these senior and graduate students. Fagan was able to examine the switch gear, fail safe and interlock mechanisms of these comparable units, but he took no notes or photographs on these outings.

Mr. Fagan then prepared a report pursuant to Rule 26(a)(2) in which he set forth the following opinions: Mr....