United States District Court, N.D. Indiana, Hammond Division
ARCELORMITTAL INDIANA HARBOR LLC and ARCELORMITTAL USA LLC, Plaintiffs,
AMEX NOOTER, LLC, Defendant.
OPINION AND ORDER
R. CHERRY MAGISTRATE JUDGE UNITED STATES DISTRICT COURT
matter is before the Court on (1) Plaintiffs' Motion to
Exclude Opinion Testimony of Richard Parry [DE 145], filed by
Plaintiffs ArcelorMittal Indiana Harbor LLC and ArcelorMittal
USA LLC (collectively “ArcelorMittal”); (2)
Plaintiffs' Motion to Exclude the Opinion Testimony of
Ronald Pape [DE 146]; (3) Plaintiffs' Motion to Exclude
the Opinion Testimony of Clifford Bigelow [DE 147]; (4)
Plaintiffs' Motion to Exclude the Opinion Testimony of
Ross Smith [DE 148]; (5) Amex Nooter, LLC's Motion to
Exclude Testimony of ArcelorMittal's Designated
Testifying Expert Donald J. Hoffmann [DE 144 and 151], filed
by Defendant Amex Nooter, LLC (“Amex Nooter”) and
(6) Defendant Amex Nooter, LLC's Motion to Strike Hearsay
Statements [DE 152]. The motions were all fully briefed on
November 16, 2017.
April 3, 2013, a fire occurred at Blast Furnace No. 3, a part
of ArcelorMittal's Indiana Harbor Facility, while Amex
Nooter employees Korrie Griffith and Robert Swimline were
rebuilding the excess gas bleeder pilot burner cabinets
pursuant to a contract between ArcelorMittal and Amex Nooter.
As Griffith and Swimline were working, natural gas was
released from the system and ignited. In the Amended
Complaint brought against Amex Nooter based on theories of
negligence and breach of contract, ArcelorMittal seeks
approximately $3.2 million in property damage and excess fuel
costs as a result of the fire. Discovery is closed, and
ArcelorMittal's Motion for Summary Judgment is fully
briefed and pending. The Court considers each of these
evidentiary motions prior to ruling on the Motion for Summary
Judgment by separate order.
Defendant Amex Nooter, LLC's Motion to Strike Hearsay
motion, Amex Nooter asks the Court to strike from
ArcelorMittal's Brief in Support of its Motion for
Summary Judgment hearsay statements of Eric Frahm made during
the course of Frahm's deposition.
February 29, 2016 deposition, which counsel for Amex Nooter
attended, Eric Frahm testified regarding statements made to
him by Korrie Griffith immediately following the April 3,
2013 fire, when both Frahm and Griffith were Amex Nooter
Q. Did you hear Korrie Griffith say anything when you [saw]
A. Oh, yeah.
Q. What did he say?
A. Well, first when he comes down, I get back down stopping
it, Ray's got him because he's trying to take off. He
goes I can't pass the piss test, I can't pass the
piss test, this is my fault. I did this, I did this. I just
killed a guy. I just killed a guy.
Q. You heard - A. Korrie say that, yeah.
Q. - Korrie say I can't pass the piss test?
A. Yeah, I heard him. The two ambulance drivers heard him and
Ray heard him.
. . . .
Q. So do you have any evidence as we sit here today, I'm
just asking, do you have any direct knowledge that Korrie
actually changed the valve out on the fly or is that - A.
Besides him telling me did it?
Q. So he told you that?
Q. What did he say exactly?
A. He said I fucked up. I thought I could do it on the fly.
Q. That's what he told you?
Q. And that's what you observed-that's what you heard
immediately after the accident?
A. Yeah, because he's freaking out and he can't pass
the drug test. He goes, I killed a guy. Oh, my God, I killed
a guy. He goes, I tried to do it on the fly. I fucked up, I
fucked up, I fucked up.
(ECF 143-9, pp. 18:3-17, 42:16-43:10).
Nooter argues that Eric Frahm's deposition testimony
should be stricken because (1) Frahm's statements were
made during a deposition and thus are out-of-court statements
being offered for the truth of the matter asserted and, (2)
as a former employee at the time of his deposition,
Frahm's statements do not constitute non-hearsay under
Federal Rule of Evidence 801(d)(2)(C). Notably, Amex Nooter
is not arguing that Korrie Griffith's statements
made after the fire and repeated in Frahm's deposition
testimony are themselves hearsay. Essentially, Amex Nooter is
arguing that deposition testimony of a former employee cannot
be used on summary judgment.
a deposition transcript is not usually admissible at trial,
it may be used in support of summary judgment. The Seventh
Circuit Court of Appeals has explained that “hearsay is
inadmissible in summary judgment proceedings to the same
extent that it is inadmissible in a trial, except
that affidavits and depositions, which . . . are not
generally admissible at trial, are admissible in summary
judgment proceedings to establish the truth of what is
attested or deposed, provided, of course, that the
affiant's or deponent's testimony would be admissible
if he were testifying live.” Eisenstadt v. Centel
Corp., 113 F.3d 738, 742 (7th Cir. 1997) (internal
citations omitted) (emphasis added). Likewise, Federal Rule
of Civil Procedure 56(c) provides, in relevant part:
Supporting Factual Positions. A party asserting that
a fact cannot be or is genuinely disputed must support the
(A) citing to particular parts of materials
in the record, including depositions, documents,
electronically stored information, affidavits or
declarations, stipulations (including those made for purposes
of the motion only), admissions, interrogatory answers, or
other materials . . . .
Fed. R. Civ. P. 56(c)(1)(A) (emphasis added).
Nooter does not argue that Eric Frahm would be unable to give
the same testimony during trial. Thus, the use of Eric
Frahm's deposition testimony in support of
ArcelorMittal's Motion for Summary Judgment is proper,
whether or not he was an employee at the time of the
deposition. The Court denies Defendant Amex Nooter, LLC's
Motion to Strike Hearsay Statements.
Motions to Exclude
five pending motions to exclude expert witness opinion
testimony are governed by Federal Rule of Evidence 702 and
Daubert v. Merrell Dow Pharmaceuticals, Inc., 509
U.S. 579 (1993). See Krik v. Exxon Mobil Corp., 870
F.3d 669, 673 (7th Cir. 2017). Rule 702 provides:
A witness who is qualified as an expert by knowledge, skill,
experience, training, or education may testify in the form of
an opinion or otherwise if:
(a) the expert's scientific, technical,
or other specialized knowledge will help the trier of fact to
understand the evidence or to determine a fact in issue;
(b) the testimony is based on sufficient
facts or data;
(c) the testimony is the product of reliable
principles and methods; and
(d) the expert has reliably applied the
principles and methods to the facts of ...