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ArcelorMittal Indiana Harbor LLC v. Amex Nooter LLC

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

December 29, 2017

ARCELORMITTAL INDIANA HARBOR LLC and ARCELORMITTAL USA LLC, Plaintiffs,
v.
AMEX NOOTER, LLC, Defendant.

          OPINION AND ORDER

          PAUL R. CHERRY MAGISTRATE JUDGE UNITED STATES DISTRICT COURT

         This 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.

         On 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.

         A. Defendant Amex Nooter, LLC's Motion to Strike Hearsay Statements

         In this 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.

         At his 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 employees:

Q. Did you hear Korrie Griffith say anything when you [saw] him?
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?
A. Yeah.
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?
A. Yeah.
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).

         Amex 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.

         Although 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:

         (1) Supporting Factual Positions. A party asserting that a fact cannot be or is genuinely disputed must support the assertion by:

(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).

         Amex 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.

         B. Motions to Exclude

         The 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 ...

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