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Arcelormittal Indiana Harbor LLC v. Amex Nooter, LLC

United States District Court, N.D. Indiana, Hammond Division

September 19, 2016

AMEX NOOTER, LLC, Defendant.



         This matter is before the Court on ArcelorMittal's Motion to Compel Amex Nooter to Produce Responsive Documentation [DE 107], filed by Plaintiff ArcelorMittal Indiana Harbor LLC (“Indiana Harbor”) on August 18, 2016. Defendant Amex Nooter, LLC (“Amex Nooter”) filed a response on September 1, 2016, and Indiana Harbor filed a reply on September 8, 2016.

         This litigation arises out of a fire and explosion that occurred at Blast Furnace No. 3 at Indiana Harbor's Harbor West Facility on April 3, 2013, when Amex Nooter was performing work for Indiana Harbor. The valve came off a live gas pipe while Korrie Griffith, an employee of Amex Nooter, was working on the pipe. Griffith's supervisor, Eric Olson, testified that he told Griffith not to touch the valve; Griffith testified that Olson told him to try to fix the valve even though it was “live.” As a result of the explosion, another Amex Nooter employee was injured, and Indiana Harbor sustained property damage.

         Based on information learned through the discovery process, Indiana Harbor served on Amex Nooter Its Third Set of Requests for Production of Documents on July 13, 2016. This set contained twenty requests for production that fell into three categories:

1. Request for Production No. 1 - Request for production of documentation regarding a prior accident involving an Amex Nooter employee disregarding the express instructions of his supervisor by manipulating a hot water valve and causing burn injuries to another worker.
2. Requests for Production Nos. 2 through 4 - Requests for production of documentation regarding Amex Nooter's decision in April 2013 to no longer perform work at Indiana Harbor facilities and its later proposal and work at Indiana Harbor facilities.
3. Requests for Production Nos. 5 through 20 - Requests for production of documentation regarding a letter Amex Nooter sent to Indiana Harbor on February 22, 2013, acknowledging its internal safety and communication issues among its employees' work at ArcelorMittal.

         Amex Nooter responded on August 12, 2016, objecting to the requests and producing no documents. After an unsuccessful meet and confer, Indiana Harbor filed the instant motion.

         Federal Rule of Civil Procedure 26 provides that the scope of discovery is as follows:

Parties may obtain discovery regarding any nonprivileged matter that is relevant to any party's claim or defense and proportional to the needs of the case, considering the importance of the issues at stake in the action, the amount in controversy, the parties' relative access to relevant information, the parties' resources, the importance of the discovery in resolving the issues, and whether the burden or expense of the proposed discovery outweighs its likely benefit. Information within this scope of discovery need not be admissible in evidence to be discoverable.

Fed. R. Civ. P. 26(b)(1). The Court considers each category of requested documents in turn.

         1. Request for Production No.1

         Request for Production No. 1 asks for

[a]ny and all documentation regarding a prior accident at ArcelorMittal's Indiana Harbor facility involving Amex Nooter and its work on a hot water line, in which an ArcelorMittal employee was injured when a valve was opened, as testified to by Eric Frahm, on pages 79 through 96 of his deposition and William Emery on pages 189 through 192 at his deposition.

(Pl. Br., Ex. H, Req. No. 1).

         In his deposition, Eric Frahm, a former Amex Nooter supervisor, testified that, prior to April 3, 2013, an Amex Nooter employee opened a hot water line valve that had just been “hot tapped” and hot water came out of the valve onto a mill employee's feet and burned him. Frahm testified that the valve should not have been opened. When asked if the employee was “not that experienced, ” Frahm answered, “I don't know about not experienced just went brain dead for a minute. I don't know. He just made a mistake.” (Pl. Br., Ex. C, 82:16-22). Management at Amex Nooter became aware of the hot water valve incident. Frahm testified that he and the other supervisors were not part of any Amex Nooter meeting regarding valves and did not put anything into place to prevent the water incident from happening again. The employee was not disciplined.

         Indiana Harbor argues that the documentation is relevant and proportional because the facts of the hot water valve incident are substantially similar to the facts leading to the April 3, 2013 incident (Pl. Br. 4-5 (citing Milhailovich v. Laatch, 359 F.3d 892, 908 (7th Cir. 2004) (discussing admissibility of other accidents)). In support, Indiana Harbor contends that both incidents involved (1) an Amex Nooter employee disregarding the safety instructions of a supervisor; (2) an Amex Nooter employee manipulating a valve against the instructions of the supervisor; and (3) another individual suffering severe burn injuries. Indiana Harbor further argues that the event is relevant because Amex Nooter did not put safety measures into place to prevent future occurrences following the hot water valve incident. And, Indiana Harbor suggests that these facts show that Amex Nooter had a pattern and practice of allowing employees to perform work in an unsafe manner.

         “‘Other accident' evidence is ‘generally deemed admissible both to prove the existence of a defect or danger in a location or a product and to show that the defendant had notice of the defect or danger, so long as the other accidents are “substantially similar” to the accident at issue in the litigation.'” Sandoval v. Bridge Terminal Trans., Inc., No. 14-C-639, 2015 WL 3650644, at *1 (E.D. Wis. June 10, 2015) (quoting Mihailovich, 359 F.3d at 908; citing Lobermeier v. Gen. Tel. Co. of Wis., 349 N.W.2d 466, 476 (Wis. 1984)).

         The hot water valve incident is not relevant to the April 3, 2013 gas valve incident. Contrary to the first two similarities asserted by Indiana Harbor, there is no evidence that the employee who opened the water valve was given safety instructions that he disregarded nor is there evidence that he disregarded supervisor instructions. And, there is conflicting testimony as to whether Griffith was told not to touch the valve or was told to fix the valve even though it was live. Although Frahm was Griffith's supervisor, he was not the supervisor during the water valve incident; rather, he was a co-worker. While both incidents involved an injury, one injury was from hot water coming from a water valve and the other was from a fire that occurred after gas escaped from a valve. Although both incidents concern “valves, ” the water valve incident involved the “opening” of the hot water valve whereas the description of the April 3, 2013 incident is that the valve “came off.” (Def. Br., Ex. 1, 49:13-52:1). While the question before the Court is one of relevance in the context of discovery and not of admissibility at trial, other than both involving “valves, ” the incidents are too dissimilar for the water valve incident to be relevant.

         Also, Indiana Harbor has not shown how documentation regarding the water valve incident is relevant to any claim or defense in this case. Indiana Harbor reasons that this discovery request supports a pattern and practice of allowing employees to work in an unsafe manner and that, but for Amex Nooter putting into place appropriate safety measures, the April 3, 2013 incident would not have happened. But, Indiana Harbor does not explain how training on the proper handling of a hot water valve, including not opening a hot water valve that had just been “hot tapped, ” would have prevented an incident involving ...

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