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Estate of Gibson v. Chemtreat, Inc.

United States District Court, S.D. Indiana, Indianapolis Division

December 1, 2017




         This matter is before the Court on Motions for Summary Judgment filed pursuant to Federal Rule of Civil Procedure 56 by Defendants Caravan Facilities Management, LLC, (“Caravan”) (Filing No. 136), General Motors, LLC, (“General Motors”) (Filing No. 141), and ChemTreat, Inc. (“ChemTreat”) (Filing No. 145). Following an explosion caused by a mix of incompatible chemicals in a water tank at a General Motors plant, James Gibson was tragically killed. Plaintiff, Estate of James Gibson (“the Estate”) filed a Second Amended Complaint for damages based on negligence and violation of the Indiana Product Liability Act. (Filing No. 67.) Each of the Defendants denies liability and each has moved for summary judgment on the claims against them. For the reasons stated below, Caravan's Motion for Summary is granted and General Motors' and ChemTreat's Motions for Summary Judgment are denied.

         I. BACKGROUND

         A. The Estate's Surreply

         As an initial matter, the Court notes that the Estate filed a Surreply on October 16, 2017 (Filing No. 175), and General Motors and ChemTreat have filed objections to the Surreply. (Filing No. 176; Filing No. 184.) Local Rule 56-1(d) provides that “[a] party opposing a summary judgment motion may file a surreply brief only if the movant cites new evidence in the reply or objects to the admissibility of the evidence cited in the response.” The Estate asserts that the Reply Briefs filed by each of the Defendants in support of their Motions for Summary Judgment contain either new evidence or objections regarding the admissibility of the Estate's evidence cited in the Estate's Response in Opposition to Summary Judgment, which justifies filing a surreply. (Filing No. 175 at 1.)

         1. ChemTreat's Objection

         ChemTreat argued in its Reply Brief that the Estate's Response Brief failed to comply with Local Rule 56-1 (b) because the Estate's Statement of Material Facts in Dispute spans twenty-five pages and contains “numerous statements that are neither material nor disputed for purposes of the present motion.” (Filing No. 169 at 5.) ChemTreat contends that because of this failure the Court should strike the Estate's Statement of Material Facts in Dispute and accept ChemTreat's recitation of the facts. In response, the Estate explains that its Response in Opposition is lengthier because it combined its Responses against three the Defendants' Motions for Summary Judgment. Additionally, the Estate argues that ChemTreat has cited allegedly undisputed facts that the Estate contends are disputed without any citations to the record. ChemTreat replies that it did not object to the admissibility of any evidence in the record, but it did object to the Estate's statements of facts for procedural non-compliance with Rule 56-1 (b). Accepting ChemTreat's invitation to strike the Estate's recitation of the Material Facts in Dispute would mean that the Court would not consider a significant portion of the Estate's evidence. Even if the Court were to accept ChemTreat's framing of a technical, procedural flaw, the Court, in its discretion, would not strike the Estate's Statement of Material Facts in Dispute as proposed by ChemTreat.

         Local Rule 56-1 governs summary judgment procedure and the parties' obligations in this District. Local Rule 56-1(b) requires the non-moving party to include in its response brief a section labeled “Statement of Material Facts in Dispute” that “identifies the potentially determinative facts and factual disputes that the party contends demonstrate a dispute of fact precluding summary judgment.” Local Rule 56-1(f)(1)(A) explains that “the court will assume that the facts as claimed and supported by admissible evidence by the movant are admitted without controversy except to the extent that the non-movant specifically controverts the facts in that party's ‘Statement of Material Facts in Dispute' with admissible evidence.” As noted by ChemTreat, the Estate's Response Brief includes the required “Statement of Material Facts in Dispute, ” but it largely fails to identify factual disputes and specifically controvert the facts put forth by the Defendants. The Estate's Statement is better described as a narrative of the events-beginning as early as 1999- leading up to the explosion on July 1, 2014, as opposed to identifying material factual disputes. The Court reminds counsel to follow proper summary judgment procedure, as it is not the Court's role to scour the record to find disputed issues of fact in response to summary judgment. However, despite the Estate's counsel's failure to identify and controvert specific issues of fact, there are still obvious disputes (contrary to what ChemTreat has termed as undisputed facts)-as expanded upon in the parties' arguments-that preclude summary judgment as it pertains to ChemTreat and General Motors.

         ChemTreat also challenged an inference that one of its employees, Hank Pietras (“Pietras”), a chemical sales engineer, knew about the addition of the barrel pump at issue as speculation and conjecture to support the Estate's Theory of ChemTreat's knowledge.[1] Because ChemTreat objected to consideration of this inference on the basis of speculation, ChemTreat opened the door to the Estate's filing of a Surreply and ChemTreat may not now escape what follows from that objection. ChemTreat objects to the substance of the Surreply because it asserts that in pages 13 through 15 of the Surreply “the Estate offers new factual assertions and raises substantive arguments not articulated in its initial response.” (Filing No. 176 at 2.) ChemTreat explains that the Estate's Response Brief focused only upon what Pietras knew, but in its Surreply the Estate now expands its argument to what Pietras should have known as well. As will be explained later in this ruling, the facts of this case foreclose ChemTreat's argument that the Estate's inference on Pietras' knowledge is pure speculation, as his job required him to be knowledgeable about chemical compatibility and others relied on his advice. Negligence law requires that a jury examine what the negligent party knew or should have known. Smith v. Baxter, 796 N.E.2d 242, 246 (Ind. 2003). While the Estate's Surreply makes a passing reference that what Pietras should have known is sufficient for a finding of negligence, much of the Estate's Surreply against ChemTreat focuses on Pietras' actual knowledge.

         The Estate has properly used its Surreply to respond to ChemTreat's Reply Brief objections regarding the admissibility of the Estate's evidence and ChemTreat's objection is overruled.

         2. General Motors Objection

         The Estate's Surreply argues that General Motors has taken a new factual position that the Hazardous Materials Control Committee (“HMCC”) is not a “GM entity”. The parties fully briefed their dispute about HMCC, a cross-functional committee, in the summary judgment briefings. In both General Motors' Motion for Summary Judgment and Reply, General Motors maintained that Quaker Chemical Corporation (“Quaker”) led the HMCC meetings and that HMCC was a cross-functional committee. Specifically, in General Motors' Reply it took issue with the Estate referring to HMCC as “GM HMCC”. (Filing No. 184 at 2.) General Motors did not cite new evidence regarding the HMCC. Therefore, the Court will disregard Section II.4 of the Estate's Surreply. The fact that General Motors did not cite new evidence regarding the HMCC is bolstered by the fact that the Estate devoted one paragraph to an allegedly new factual position in its Surreply.

         In its Reply General Motors objects to the consideration and use of the Call to Action Report (“Call to Action Report”) and Fatality Report to the extent the report discusses remedial measures. (Filing No. 172 at 2.) This document contains both an assessment of circumstances that led to the accident and action items moving forward. (Filing No. 165-31.) The action items contain references to which policies and procedures were violated as well as remedial measures. Id. at 4. One of the highly contested issues is whether or not HMCC was required to review new usage of existing chemicals. Relatedly, General Motors' control over HMCC (which had final approval of chemical use) is also highly contested. Although the Call to Action Report contains some remedial measures, the Court will admit the Call to Action Report in its entirety because it refers to policies and procedures in effect at the time of the accident regarding HMCC approval for new use of existing chemicals and General Motors' extent of control over HMCC. Consistent with Federal Rule of Evidence 407, to the extent that the Call to Action Report refers to subsequent remedial measures, such evidence cannot be used to prove negligence or culpable conduct; rather it is admitted to prove the disputed issue of HMCC's approval process and General Motors' control of HMCC.

         General Motors' Objection to Section II.4 of the Estate's Surreply is sustained, and the Surreply on this issue is will not be considered by the Court. General Motors' Objection to Section II.3 is overruled, and the Surreply will be considered by the Court as to this section.

         B. Statement of Material Facts

         The following material facts are not in dispute and are viewed in a light most favorable to the Estate as the non-moving party. See Luster v. Ill. Dep't of Corrs., 652 F.3d 726, 728 (7th Cir. 2011). James Gibson (“Gibson”) was killed following a tragic explosion at General Motors' Marion Metal Stamping Plant located in Marion, Indiana (“the Plant”) on July 1, 2014. Gibson worked for Quaker, an independent contractor of General Motors. He was a Quaker employee and his title was Site Manager. Quaker contracted with ChemTreat, [2] a water treatment company, to monitor the performance of water treatment systems within the welder water system at the Plant, and to make recommendations on products to use. ChemTreat employee, Pietras, visited the Plant approximately twice each month to “(1) track ChemTreat inventory on site, (2) collect and analyze water samples, (3) evaluate performance of ChemTreat's chemical program, and (4) make chemical water treatment program recommendations for improving performance and system conditions.” Caravan provides building maintenance services to the Plant.[3]

         The explosion at issue in this case occurred in the welder water system. The welder water system has two systems that work together to cool the welding tools in the Plant: a closed loop welder water system and an open cooling tower system. Attached to the open cooling tower system is a brominator. The brominator's operating manual contains a cautionary warning that the use of chemical products other than “BCDMH” “could cause a chemical reaction leading to excessive pressurization of the brominator tank, creating an explosion of the vessel, causing death, serious bodily injury, or property damage.” (Filing No. 165-32 at 3.) C2188, one of the chemicals involved in the chemical reaction which caused the explosion, was used in the open cooling tower system to treat the water on a regular basis. (Filing No. 142 at 3.) C2188 is manufactured and supplied by ChemTreat. Id.

         On December 11, 2013, General Motors employee, Matt Emery (“Emery”)[4] approached Gibson about finding an alternative use for the remaining unused Onyxide 200 (“Onyxide”), a biocide chemical. (Filing No. 166 at 17.) Gibson then contacted ChemTreat employee Pietras via email and the following email exchange occurred:

Hank, I have a quantity of biocide I need to use up by the end of the year. It is Onyxide 200 and is equivalent to Grotan. Is it safe, possible and reasonable to put this biocide in the WW loop or Cooling Tower? What other information do you need to explore this option? Would this contribute to the TOC level in the WW loop? . . . Please respond as quickly as possible-I have to answer this question soon.

         (Filing No. 165-28 at 2-3). Pietras responded,

I would put them in the Tower system because we can blow that system down, we don't have to worry about any concentrating affect. Let's not mess with the WW loop, as it is in the best shape it has been in twenty years!

Id. Gibson then asked,

How about the dosage? Use kill dose as recommended by the manufacturer. I think it is 1500 ppm.

Id. Pietras answered,

That would be good, but that could be about 20-30 gallons depending on how you [] have, you could just do doses of 5-10 gallons. Maybe you just want to add it all at once and get rid of it though.

Id. Pietras admits that he did not consult the Material Safety Data Sheets (“MSDS”) on the chemical compatibility of Onyxide 200 and C2188 (the chemical already in the open cooling tower system) before making his recommendation to Gibson. (Filing No. 147-5 at 39-40.) The MSDS identifies C2188 as an oxidizer and flags Onyxide 200 as a risk to react with oxidizers; thus, the MSDS warned of the risk of a chemical reaction between the two chemicals at issue. Having received Pietras' recommendation, Gibson reported back to Emery that Onyxide could be reused as another biocide. (Filing No. 147-2 at 58-59.) Emery and Gibson concluded that Onyxide did not need to be presented to HMCC for approval. “So since it was a biocide that we were using previously, you can use as another biocide, we did not see that as a need to reapprove the chemical because it was being used as a biocide.” (Filing No. 147-2 at 33.)[5] It is undisputed that the use of new chemicals must be approved by HMCC, but the parties dispute whether or not new uses of existing chemicals were required to be approved at the time of the explosion and who was responsible for ensuring HMCC approval was sought.

         After receiving Pietras' response that Onyxide could be used in the welder water cooling tower and reporting back to Emery, Gibson then instructed Quaker employee, Jordan Tharp (“Tharp”) to introduce Onyxide into the open cooling tower system. Initially, Tharp used a pump that was used previously to pump a different chemical, but noticed that the Onyxide was being pumped into the system at an extremely low rate because it was too viscous and thick for the pump and hose. (Filing No. 166 at 22.) Tharp reported the pumping problem to Pietras and Gibson. (Filing No. 147-5 at 40;Filing No. 166 at 22.) It was at this point that Defendant Caravan was brought into the series of events, because the installation of a new pump required pipe fitting work that only Caravan could perform. (Filing No. 166 at 22-23.) Gibson discussed the need for a pump that could handle a larger volume of Onyxide with General Motors employee Emery who places orders through General Motors' work request system. Id. Gibson located the Lincoln barrel pump he wanted to use from a stock of existing pumps and Emery placed the order for the pump installation with Caravan employee Robert Ogden (“Ogden”). Id. Ogden knew the pump would be installed upstream of the brominator; however, Ogden and Gibson never discussed the flow capacity ...

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