Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Guinn v. Praxair, Inc.

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

May 21, 2019

RANDY GUINN, Plaintiff,
v.
PRAXAIR, INC., FIBA TECHNOLOGIES, INC., FIKE CORPORATION Defendants.

         OPINION 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

          Thomas L. Ludington, United States District Judge.

         On May 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”).[1] Am. Compl., ECF No. 27.

         This 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.

         On 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. 111.[2] On February 4, Praxair and Fiba filed separate motions for summary judgment. ECF No. 106, 108.

         Following 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.

         I.

         A.

         The following information involving the transportation and delivery of hydrogen was obtained from depositions and the various expert reports and appears largely uncontested.

         Hydrogen 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.

         The 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.

         The 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.

         While 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.

         To 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.

         All 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.

         The 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.

         Upon 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.

         B.

         The 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.

         Prior 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.

         C.

         Following 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.”[3]

ECF No. 63-4 at 130-131.

         Rathgeber 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 pressure.

Id. at 44-45.

         As part 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 protective equipment.

Id. at 130-131.

         D.

         The 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.

         Fiba 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.[4] 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.[5]

         Fike 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.

         E.

         Approximately 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.

         In the 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.

         II.

         Plaintiff's motion for reconsideration of the Court's order denying his motion to amend his complaint will be addressed first.

         A.

         Pursuant 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, 2015).

         Plaintiff's motion for reconsideration will be granted in part.

         B.

         Plaintiff 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 Fiba.[6]

         On 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.

         Shortly 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.[7] Id.

         On 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 prejudice.”).

         Plaintiff 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 Guinn.

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.

         The 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).

         C.

         Upon closer consideration, Plaintiff's motion to reconsider will be granted in part.

         1.

         Plaintiff's First Amended Complaint presents one count of negligence against Praxair. It provides:

         As the owner of the subject trailer, Praxair, Inc. breached its duty of reasonable care owed to Plaintiff including, but not limited to:

a. failing to maintain the subject trailer in a reasonably safe condition;
b. negligently testing or failing to test the subject trailer;
c. negligently inspecting or failing to inspect the subject trailer;
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 omitted).

         Because 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 claims.

         Plaintiff's Second Amended Complaint sought to clarify the allegations against Praxair as follows:

         As the 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.

         Subparagraphs (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.

         The 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.

         2.

         Plaintiff's First Amended Complaint presents one count of negligence against Fiba. It provides:

         Defendant 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 trailer;
b. negligently inspecting or failing to inspect the subject trailer;
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 service;
f. failing to warn Plaintiff of the signs of valve degradation and the consequences thereof.

ECF No. 27 at 7.

         Plaintiff's Second Amended Complaint would clarify Plaintiff's allegations against Fiba. It provides:

         Defendant Fiba committed negligence as it breached its duty of reasonable care owed to Plaintiff ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.