United States District Court, E.D. Michigan, Northern Division
AND ORDER GRANTING IN PART MOTION FOR RECONSIDERATION,
DIRECTING THE FILING OF SECOND AMENDED COMPLAINT, DENYING
MOTIONS CHALLENGING EXPERT WITNESSES, GRANTING FIKE'S
MOTION FOR SUMMARY JUDGMENT, STRIKING PRAXAIR AND FIBA'S
NOTICES OF NON-PARTY AT FAULT, DENYING PRAXAIR'S MOTION
FOR SUMMARY JUDGMENT, DENYING FIBA'S MOTION FOR SUMMARY
JUDGMENT AND AMENDING SCHEDUING ORDER
L. Ludington, United States District Judge.
4, 2017, Plaintiff filed a complaint against Praxair, Inc.
(“Praxair”) and Fiba Technologies, Inc.
(“Fiba”) for injuries sustained from an explosion
involving a hydrogen trailer (the “Trailer”).
Compl., ECF No. 1. On December 19, 2017, Plaintiff filed an
amended complaint adding Defendants Fike Corporation
(“Fike”) and Chart Industries
(“Chart”). Am. Compl., ECF No. 27.
opinion and order addresses the following five pending
motions. On December 3, 2018, Fike filed a motion for summary
judgment. ECF No. 80. The next week, Plaintiff filed a motion
to amend his complaint a second time. ECF No. 84. On January
25, 2019, Plaintiff's motion to amend his complaint was
denied. ECF No. 97. Plaintiff filed a motion to reconsider
the Court's order denying his motion to amend, which will
be addressed by this opinion.
January 25, 2019, Praxair filed a motion to exclude the
testimony of Plaintiff's two experts, Thomas G. Witte and
Michael D. Klein. ECF No. 100. Praxair contends that
Witte's calculations of the Trailer's vacuum are
scientifically unsound and incorrect. Praxair also contends
that Plaintiff cannot call Witte as a witness because his
conclusion that the Trailer's pressure rose to an unsafe
level contradicts Plaintiff's testimony to the contrary.
Finally, Praxair argues that Klein's testimony should be
excluded because he failed, in assessing causation, to
analyze and exclude alternative ignition sources for the
explosion. A few days later, Fiba filed a motion to exclude
Klein's testimony. ECF No. 101. Like Praxair, Fiba argues
that Klein failed to assess alternative ignition sources.
Fiba also contends that Klein's determination that the
Trailer's vent stack rain flap did not fully open is not
supported by the evidence. The next week, Fiba filed a notice
of concurrence with Praxair's motion. ECF No.
February 4, Praxair and Fiba filed separate motions for
summary judgment. ECF No. 106, 108.
a brief explanation about hydrogen and its transportation and
a brief recitation of the relevant facts, each of the motions
will be addressed in turn.
following information involving the transportation and
delivery of hydrogen was obtained from depositions and the
various expert reports and appears largely uncontested.
is typically transported in its liquid form. However, liquid
hydrogen transforms from a liquid to a gas at a very low
temperature, -423 degrees Fahrenheit. It is the lightest
known gas and is 7/100ths as heavy as air. Accordingly, it is
imperative that the liquid hydrogen remain at a low
temperature within the trailer during transportation. As the
temperature within the trailer rises, the liquid hydrogen
will begin converting to a gas. Because hydrogen gas occupies
more space than liquid hydrogen, the pressure within the
trailer will increase.
trailer is designed to keep the hydrogen at a low
temperature. To accomplish this, the trailer has an inner and
an outer container. The inner container contains the hydrogen
and the outer container holds the inner container. Between
the two is an empty space maintained in a vacuum, helping
sustain a low temperature within the inner container. Despite
the vacuum, the inner container's temperature will
inevitably rise. The design of the trailer cannot prevent
this, only slow the progression. However, the quality of the
vacuum will affect how quickly the temperature rises. The
better the vacuum, the slower the rise in temperature. The
poorer the vacuum, the quicker the rise in temperature.
effectiveness of a vacuum is measured in microns which can be
measured in one of two ways: cold microns and warm microns. A
cold micron reading is measured while the trailer holds
hydrogen. A warm micron reading is measured while the trailer
is empty. The maximum safe micron level differs between cold
microns and warm microns. The higher the micron reading, the
higher the vacuum temperature. The lower the micron reading,
the lower the vacuum temperature. A low micron reading is
indicative of an effective vacuum. When a vacuum temperature
rises to a certain micron level, it is deemed unsafe.
liquid hydrogen is being transported, it can only be held in
the trailer for a certain amount of time because its
temperature will increase and become a gas. This will cause
the pressure within the trailer to increase. Eventually, the
pressure will reach a level that the trailer can no longer
contain the hydrogen gas. At this point, the gas must be
permitted to escape or the trailer may explode.
facilitate a controlled release of hydrogen, the trailer is
equipped with three safety release mechanisms. The first is
the back pressure regulators which provide the smallest
amount of pressure release at 135 psig. If the pressure
increases beyond the capability of the back pressure
regulators, then the spring loaded safety relief valves will
activate. The spring loaded safety relief valves provide a
medium amount of pressure release at 150 psig. And finally,
if the pressure increases beyond the capability of the spring
loaded safety relief valves, the rupture discs will activate.
As the name implies, the discs with rupture and release a
high amount of pressure at 219 psig.
three of these safety relief mechanisms channel into the
trailer's vent stack which releases the hydrogen gas into
the air outside the trailer. The release of hydrogen gas can
be dangerous because hydrogen has a broad flammability range
and requires only a low level of energy to ignite. 0.02
millijoules of energy can ignite hydrogen which is less than
seven percent of the energy needed to ignite natural gas.
Hydrogen can ignite from the slightest source, such as static
electricity or friction. For this reason, it is imperative
that the vent stack and the trailer itself be constructed of
material and in a manner that eliminates any such ignition
source from being present.
trailer has a pressure gauge that the driver can view from
their seat. Praxair instructs its drivers to monitor the
pressure level within the trailer. If the pressure rises more
than 0.2 psig over two hours, drivers must stop, find a safe
location, and vent the trailer.
arriving at their destination, drivers must attach a hose
from the trailer to the receiving hydrogen tank. The driver
activates a switch on the tank and it automatically lowers
the tank pressure to 135 pounds. The driver then must
manually lower the tank pressure to 120 pounds and increase
the trailer pressure to 135 pounds. It is dangerous for the
trailer to exceed 135 pounds of pressure because the
trailer's maximum pressure is 150 pounds. The difference
in pressure between the trailer and the tank forces the
hydrogen to flow from the trailer into the tank. It is
important that the difference in pressure be great enough
that the hydrogen is forced to flow between the two.
Otherwise, the hydrogen will not flow into the tank and the
pressure within the trailer will continue to build. The
optimal difference in pressure is 15 pounds.
incident at issue occurred on December 22, 2014. Plaintiff
was scheduled to deliver hydrogen from East Chicago, Indiana
to Hemlock Semiconductor in Hemlock, Michigan. Pl.'s Dep.
at 39, ECF No. 55-1. The trailer used to deliver the hydrogen
was Trailer 4855 (“Trailer”). Am. Compl. at 3,
ECF No. 27.
to making the delivery, Plaintiff inspected the Trailer. ECF
No. 55-1 at 36. This included examining the Trailer's
valves, meters, hoses, and vent knobs. Id. Plaintiff
also checked to ensure that the Trailer's pressure was
below 12 psig. ECF No. 100-9 at 22. Upon arriving at Hemlock
Semiconductor, Plaintiff parked the Trailer at one of eight
hydrogen tanks. ECF No. 55-1 at 30. He chock blocked the
Trailer's tires, lowered the Trailer's airbag,
grounded the Trailer, and connected a copper grounding wire
to the Trailer. Id. at 49-50. Plaintiff then lowered
the pressure in the receiving tank and elevated the pressure
in the Trailer. Id. at 53. Hydrogen began pumping
from the Trailer into the tank. Id. at 56. At some
point, Plaintiff recalls the pressure in the Trailer quickly
rising to 140 psig. ECF No. 80-5 at 58. Hydrogen then
explosively escaped the Trailer and injured Plaintiff. ECF
No. 27 at 5.
the incident, Praxair (the owner of the Trailer) developed a
Root Cause Analysis (“RCA”) of the accident on
March 31, 2015. Rathgeber Dep. at 136, ECF No. 63-4. The
focus of an RCA is first to determine what the employee's
injury is and then to determine how the injury occurred.
Id. at 24-25. Praxair's Director of Safety for
U.S. Industrial Gasses, Dan Rathgeber, was deposed on May 4,
2018 regarding the RCA. Rathgeber explained that during the
RCA, Trailer 4855 was inspected “top to bottom”
and no problems were found. Id. at 129. He did
identify two causes of Mr. Guinn's injury. He stated:
[T]here were two causes. When we say “caused the
incident, ” we need to be talking about the focal point
here, and we were looking at the injury to Mr. Guinn, so Mr.
Guinn's really lack of operational discipline, not
lowering the tank pressure to what the procedures and the
requirements were caused the incident. And then him also
going to the back of the trailer without his required PPE
caused the injury to his - to his head.”
ECF No. 63-4 at 130-131.
explained the first cause of the accident as follows:
Mr. Guinn failed to reduce the pressure in the tank to below
or at 120 psig based on the data that we have…So when
you're delivering liquid hydrogen, one of the first
things you do is you start building pressure in the trailer.
So Mr. Guinn would be basically taking liquid hydrogen,
putting it through an atmospheric vaporizer, kind of like a
fin coil where it's absorbing heat. And when any kind of
a cryogenic material absorbs heat, it expands and it produces
pressure. So he's building the pressure up in his trailer
from, roughly, 18 to 50 pounds to his delivery pressure which
is going to be below 135 pounds because 135 is the max
pressure he should allow that trailer to get to.
Now, unfortunately what Mr. Guinn did, he was supposed to -
we always want to have a 15 pound DP, differential pressure,
between the trailer and the tank you're delivering to. So
Mr. Guinn tried to put - tried to get the trailer - you know,
tried to deliver to a tank that was 130 pounds, with a five
pound DP, so the liquid has nowhere to go at that point so
it's expanding. He's trying to control pressure, but
it has nowhere to go because he hasn't lowered the
Id. at 44-45.
of his report, Rathgeber had prepared a diagram which he
referenced during his deposition.
This diagram reflects the pressure and level of that tank
during the time of the delivery.
Now, as you can see, this is the delivery that Mr. Guinn
made; and the pressure right here never gets below 120. And
you can see a small blip in the level, and some of that could
be done to the pressure. But you can see over here, a normal
delivery where the driver takes it below 120, you can see a
linear increase, and so that product now has a place to go
and starts increasing the level, and you don't see that
over here with Mr. Guinn… And so what I'm saying
is that if Mr. Guinn had followed the procedure like he was
supposed to and reduce the tank down to 120 psig, the
pressure that is built up in the trailer - and the other part
of this cause is that Mr. Guinn has full control over many
things. One is building the pressure in the trailer, the
other is venting the pressure in the trailer as well so
you're watching that pressure that's, you know, built
into these procedures and what he's trained in to open
the vents as the pressure gets higher to make sure that he
has a place for that pressure to go as he's watching it.
Id. at 47-48.
Regarding the second cause of the accident, he stated Yeah,
so Mr. Guinn's procedures when we have a stack fire is to
don his baklava on top of his__ and his hardhat on top of
that and, you know, with all of his gloves and everything, go
back to the trailer and switch the diverter valve, which, you
know, he was somewhat attempting to do, it seems based on the
Hemlcok statements, but he was also not wearing his
Id. at 130-131.
case currently has three defendants: Praxair, Fiba, and Fike,
but an unusual alignment of the financial interests of the
parties. Praxair “produces, stores, and distributes
industrial gases, such as oxygen and hydrogen.” ECF No.
27 at 3. It owns Trailer 4855. Id. Plaintiff is not
an employee of Praxair, but of Ruan Transportation Management
(“Ruan”). Ruan contracts with Praxair to provide
drivers and, presumably, tractor trucks to transport the
liquid hydrogen. Praxair's Mot. Partial Sum. J., ECF No.
55 at 2. As part of Ruan and Praxair's contract, Ruan
agreed to indemnify Praxair against all claims and
liabilities, except those arising from Praxair's sole
negligence. As part of his employment duties for Ruan,
Plaintiff transported and delivered Praxair products to
Praxair customers. ECF No. 27 at 3. Plaintiff had been
working for Ruan for two and a half years when the incident
occurred. ECF No. 55-1 at 17.
services gas containment equipment, including Praxair's
trailers. ECF No. 27 at 4. Fiba typically conducts visual
inspections of trailers once a year and a pressure test
inspection once every five years. Clay Dep. at 15-16, ECF No. 106-14.
Fiba had serviced the trailer in October 2014, just two
months prior to the incident. Id. at 70. Fiba issued
a Certificate of Compliance which provided
This is to Certify that FIBA Technologies, Inc. hereby
confirms that the product being supplied conforms to the
specifications set forth by Purchase Order Number: 60011861,
and referenced to FIBA Work Order Number: OH16534…If
the product is a trailer, FIBA also certifies that the
equipment has been manufactured in accordance with all
requirements of the U.S. Federal Motor Vehicle Safety
Standards, at the time of manufacture.
manufactures burst or rupture discs for hydrogen trailers,
including Trailer 4855. ECF No. 27 at 4. As discussed above,
these discs are safety release devices.
two and a half years after the incident, Plaintiff filed his
initial complaint, claiming that the trailer's
“safety relief system failed.” Compl., ECF No. 1.
He listed only two defendants, Praxair and Fiba. Plaintiff
alleged that Praxair breached its duty of reasonable care in
maintaining, testing, and inspecting the trailer.
Id. at 4-5. He also claimed that Praxair was
negligent by permitting use of the trailer and by
“failing to warn Plaintiff of the signs of valve
degradation and the consequences thereof.” Id.
at 4. Plaintiff further claimed that Fiba breached its duty
of reasonable care by negligently testing and inspecting the
trailer and failing to recommend its removal from service.
See Id. at 5-6.
fall of 2017, Praxair and Fiba filed separate Notices of
Non-Party Fault. ECF No. 19, 20. Both identified five
additional parties, including Fike, not identified in
Plaintiff's complaint and alleged that these parties were
at fault for Plaintiff's damages. On December 19, 2017,
Plaintiff filed his first amended complaint which added Fike
as a defendant to the action. ECF No. 27. Plaintiff alleged
that Fike “negligently designed, tested, approved,
manufactured, produced and/or recommended the burst or
rupture discs used on the subject trailer.”
Id. Neither Praxair nor Fiba filed crossclaims.
motion for reconsideration of the Court's order denying
his motion to amend his complaint will be addressed first.
to Eastern District of Michigan Local Rule 7.1(h), a party
may file a motion for reconsideration of a previous order,
but must do so within fourteen days of the order's entry.
A motion for reconsideration will be granted if the moving
party shows: “(1) a palpable defect, (2) the defect
misled the court and the parties, and (3) that correcting the
defect will result in a different disposition of the
case.” Michigan Dept. of Treasury v. Michalec,
181 F.Supp.2d 731, 733-34 (E.D. Mich. 2002) (quoting E.D.
Mich. LR 7.1(g)(3)). A “palpable defect” is
“obvious, clear, unmistakable, manifest, or
plain.” Id. at 734 (citing Marketing
Displays, Inc. v. Traffix Devices, Inc., 971 F.Supp.2d
262, 278 (E.D. Mich. 1997)). “[T]he Court will not
grant motions for rehearing or reconsideration that merely
present the same issues ruled upon by the Court, either
expressly or by reasonable implication.” E.D. Mich.
L.R. 7.1(h)(3). See also Bowens v. Terris, No.
2:15-CV-10203, 2015 WL 3441531, at *1 (E.D. Mich. May 28,
motion for reconsideration will be granted in part.
filed his initial complaint over two years ago on May 4,
2017. ECF No. 1. In it, he alleged that the Trailer's
“safety relief system failed” and listed only two
defendants, Praxair and Fiba. Id. On September 15,
2017, Praxair filed its Notice of Non-Party Fault. ECF No.
19. Almost three months later, Plaintiff filed a motion to
amend his complaint and the motion was granted. ECF No. 25,
26. The amended complaint added two new parties, Fike and
Chart, but added no additional claims against Praxair or
February 3, 2018, the scheduling order was amended at the
request of the parties and the close of discovery was
extended to October 19, 2018, providing the parties more than
one year for discovery. ECF No. 42. On July 9, 2018, a second
amendment to the scheduling order was submitted. ECF No. 51.
It sought a further extension of the dates entered by the
Court in part based upon the attorneys' representations
that they wanted to “focus on facilitation and to
control litigation costs prior to facilitation.”
Id. at 2. Accordingly, the close of discovery was
extended to November 19, 2018.
thereafter, the Court case manager received a phone call from
counsel for Praxair seeking a conference because the existing
dates needed to be furthered extended, particularly with the
need to prepare for facilitation. On August 7, 2018, a phone
conference was held and additional extensions were granted in
consideration of the parties' request for leniency to
accommodate facilitation. See ECF No. 53. The close
of discovery was extended to December 3, 2018. Id.
December 12, 2018, Plaintiff filed a motion to amend his
complaint a second time. According to the Sixth Circuit,
“[t]o deny a motion to amend, a court must find
‘at least some significant showing of prejudice to the
opponent.'” Duggins v. Steak ‘N Shake,
Inc., 195 F.3d 828 (quoting Moore v. City of
Paducah, 790 F.2d 557 (6th Cir. 1986)). Filing a motion
after the close of discovery constitutes significant
prejudice. Id. (“[A]llowing amendment after
the close of discovery creates significant
sought to amend his complaint in the following three ways:
(a) Amend Plaintiff's specific theories of liability to
confirm [sic] with the discovery and expert opinions that
[had] been developed throughout the case;
(b) Amend the Complaint to replace Praxair, Inc. as a
defendant with the now owner of Praxair, Inc., Linde, PLC;
(c) Add a consortium claim for Plaintiff's wife Melissa
Mot. Am. Compl. at 4, ECF No. 84. When he filed his motion,
Plaintiff had filed his initial complaint over a year and
half prior, discovery had closed, and Fike had already filed
a motion for summary judgment.
Court denied Plaintiff's motion because permitting the
Second Amended Complaint would frustrate a timely resolution
of Plaintiff's claim and prejudice Defendants. ECF No.
97. The deadline for discovery had been extended three
separate times, and Plaintiff did not submit his motion to
further amend the complaint within the discovery deadline.
The Court further held that Plaintiff's Second Amended
Complaint was not permissible because it would transform the
fundamental theories of liability in the case. Furthermore,
Plaintiff's motion was lacking in analysis. See
Id. at 7 (“Plaintiff has not adequately addressed
the substantive issues surrounding the substitution of Linde
as a defendant and his request will be
denied…Plaintiff seeks to add his wife, Melissa Guinn,
as a plaintiff, contending that she ‘obviously has
sustained significant injuries in the case.' If this
assertion is as obvious as Plaintiff contends, it is unclear
why Plaintiff waited over a year and a half to attempt to add
her as a plaintiff.”)(citation omitted).
closer consideration, Plaintiff's motion to reconsider
will be granted in part.
First Amended Complaint presents one count of negligence
against Praxair. It provides:
owner of the subject trailer, Praxair, Inc. breached its duty
of reasonable care owed to Plaintiff including, but not
a. failing to maintain the subject trailer in a reasonably
b. negligently testing or failing to test the subject
c. negligently inspecting or failing to inspect the subject
d. negligently allowing the subject trailer to leave its
place of business in an unsafe condition;
e. failing to remove the subject trailer from use;
f. failing to warn Plaintiff of the signs of valve
degradation and the consequences thereof.
ECF No. 27 at 5-6. The claim provided few facts and no
guidance as to the particulars of Plaintiff's claim. In a
complaint, the pleader need not provide “detailed
factual allegations”, but the “obligation to
provide the ‘grounds' of his ‘entitle[ment]
to relief' requires more than labels and conclusions, and
a formulaic recitation of the elements of a cause of action
will not do.” Bell Atlantic Corp. v. Twombly,
550 U.S. 544, 555 (2007). The pleading “must contain
sufficient factual matter, accepted as true, to state a claim
to relief that is plausible on its face.”
Iqbal, 556 U.S. at 678-79 (quotations and citation
Plaintiff presented only conclusory theories of breach, the
complaint lacked sufficient factual information to support
his legal claims or to apprise the Defendants of the case
they were called upon to defend. There is no indication, for
example, as to how Praxair acted negligently in its
maintenance, testing, or inspection of the trailer. The lack
of factual allegations not only limited the Defendants'
ability to understand Plaintiff's claims against them, it
also limited the Court's ability to understand the
Second Amended Complaint sought to clarify the allegations
against Praxair as follows:
owner of the subject trailer, Praxair committed negligence as
it breached its duty of reasonable care owed to Plaintiff
including, but not limited to:
a. In overfilling the trailer in violation of 49 CFR;
b. In failing to monitor the tanker's holding time as
required by 49 CFR;
c. In failing to investigate prior burst disc ruptures;
d. In failing to investigate and repair historically bad
vacuums in trailer 4855;
e. In failing to take trailer 4855 out of service due to the
history of poor vacuums and burst disc ruptures;
f. In having pressure gauges on tank 4 at the Hemlock Tank
Farm which were difficult to read;
g. In having signage at the Hemlock Tank Farm at tank #4
which was inconsistent with driver delivery instructions;
h. In operating the trailer with a vent stack rain flap which
failed to fully open 90 degrees in violation of 49 CFR;
i. In operating the subject trailer with lights on the back
near the vent stack which were not designed to be explosion
proof in a hydrogen environment;
j. In failing to appropriately assess the risks of hydrogen
contact with the liquid tank lighting and perform proper
hazard analysis and properly apply the design-guard-warn
hierarchy to trailer 4855;
k. Failing to warn plaintiff and other drivers of trailer
4855 of the danger of operating the subject trailer while it
was overfilled and failing to instruct plaintiff and other
similarly situated drivers to open road relief valves to
alleviate the overfilling of the trailer.
ECF No. 84-1 at 5-6.
(a), (f), (g), and (k) however, fall beyond the purview of
the scope of the First Amended Complaint. The First Amended
Complaint makes no claims in relation to overfilling the
Trailer as alleged in subparagraphs (a) and (k). Instead, the
allegations all concern the Trailer and Praxair's
maintenance of the Trailer. Subparagraphs (f) and (g) both
relate to the signage at Hemlock. None of the allegations in
the First Amended Complaint relate to signage.
allegations within the First Amended Complaint are broad and
contemplate multiple theories of liability. Subparagraphs
(b), (c), (d), (e), (h), (i), and (j) of the Second Amended
Complaint fall within the broad purview of the First Amended
Complaint. They each relate to the Trailer itself and
Praxair's maintenance of the Trailer. They do not expand
upon the allegations of the First Amended Complaint, but
instead make the claim more precise.
First Amended Complaint presents one count of negligence
against Fiba. It provides:
Fiba Technologies, Inc. breached its duty of reasonable care
owed to Plaintiff including, but not limited to:
a. negligently testing or failing to test the subject
b. negligently inspecting or failing to inspect the subject
c. negligently allowing the subject trailer to leave its
place of business in an unsafe condition;
d. failing to properly repair the subject trailer;
e. failing to recommend removal of the subject trailer from
f. failing to warn Plaintiff of the signs of valve
degradation and the consequences thereof.
ECF No. 27 at 7.
Second Amended Complaint would clarify Plaintiff's
allegations against Fiba. It provides:
Fiba committed negligence as it breached its duty of
reasonable care owed to Plaintiff ...