Jones et al v. Heil Process Equipment, LLC et al, No. 3:2013cv22811 - Document 51 (S.D.W. Va. 2014)
Court Description: MEMORANDUM OPINION AND ORDER granting Plaintiffs' 46 MOTION for Destructive Testing of the Subject Fan. Signed by Magistrate Judge Cheryl A. Eifert on 10/16/2014. (cc: attys; any unrepresented party) (mkw)
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Jones et al v. Heil Process Equipment, LLC et al Doc. 51 IN TH E U N ITED STATES D ISTRICT COU RT FOR TH E SOU TH ERN D ISTRICT OF W EST VIRGIN IA H U N TIN GTON D IVISION W ILLIAM R. JON ES, e t al., Plain tiffs , v. Cas e N o .: 3 :13 -cv-2 2 8 11 H EIL PROCESS EQU IPMEN T, LLC, D e fe n d an t/ Th ird -Party Plain tiff, v. SPECIAL METALS CORPORATION , d / b/ a H U N TIN GTON ALLOYS CORPORATION an d H U N TIN GTON ALLOYS CORPORATION , Th ird -Party D e fe n d an ts . MEMORAN D U M OPIN ION AN D ORD ER Pending before the Court is Plaintiffs Motion for Destructive Testing of the Subject Fan. (ECF No. 46). Neither the Defendant, nor either of the Third-Party Defendants, has responded in opposition to the m otion, and the tim e for filing a responsive m em orandum has expired. See L. R. Civ. P. 7.1(a)(7). Accordingly, for the reasons that follow, the Court GRAN TS the m otion. This case involves personal injuries suffered by Plaintiff William R. J ones while working at Huntington Alloys on March 26, 20 12. On that date, Mr. Sm ith was allegedly struck in the head by a blade that broke off of an operating stack fan m anufactured by Defendant Heil Process Equipm ent, LLC ( Heil ). Plaintiffs have brought a products 1 Dockets.Justia.com liability action against Heil, alleging strict liability, negligent m anufacturing, breach of express and im plied warranties, and reckless disregard or indifference to civil obligations arising out of the m anufacturing, distribution, and ultim ate sale of the fan to Huntington Alloys. During the course of discovery, the parties conducted non-destructive inspections and analysis of the subject fan and fan blade, both with and without experts present. The fan and the fan blade, as they appeared after the accident involving Mr. J ones through the present, were preserved with photographs and video recordings. (ECF Nos. 46 at 2, 47 at 6). After com pleting a non-destructive evaluation of the fan, Plaintiffs expert engineer, J aim e Petty-Galis, prepared an affidavit in which she testified that nondestructive testing was insufficient to allow her to identify the root cause of the fan blade s failure, and the only way to obtain the inform ation necessary to provide a conclusive opinion was to conduct destructive testing. (ECF No. 42-2). Ms. Petty-Galis prepared a protocol for conducting the destructive testing, which she provided to Plaintiffs counsel. (Id.). She further affirm ed that the proposed protocol com plied with accepted practices for perform ing forensic m aterial analysis of the com ponents in question. (Id.). On Septem ber 2, 20 14, Plaintiffs counsel sent to counsel for the adverse parties a notice of intent to perform destructive testing that included Ms. Petty-Galis s protocol, and requested an agreem ent to perform the necessary destructive testing. (ECF Nos. 425, 46-1). In response, counsel for Heil objected to the tim ing of the testing and to som e aspects of the proposed protocol, but did not object outright to the concept of destructive testing. (Id.). The Third-Party Defendants expressed no objections to the testing or the protocols. (ECF No. 46 at 2-3). Upon receipt of Heil s letter, counsel for 2 Plaintiffs forwarded it to Ms. Petty-Galis to address Heil s stated concerns with the protocol. Ms. Petty-Galis prepared a detailed reply in which she explained the basis for the protocol, and specifically com m ented on each reservation or challenge raised by Heil. (ECF No. 46-2). Ms. Petty-Galis s reply was provided to Heil s counsel, if not upon receipt, as part of Plaintiffs Motion to Perform Destructive Testing. As indicated, Heil has not raised with the Court any further objections. Plaintiffs argue that a m otion to perm it destructive testing should be assessed under the four considerations set forth in Mirchandani v. Hom e Depot, U.S.A., Inc., 235 F.R.D. 611, 614 (D.Md. 20 0 6), which include: (1) Whether the proposed testing is reasonable, necessary, and relevant to proving the m ovant's case; (2) Whether the non-m ovant's ability to present evidence at trial will be hindered, or whether the non-m ovant will be prejudiced in som e other way; (3) Whether there are any less prejudicial alternative m ethods of obtaining the evidence sought; and (4) Whether there are adequate safeguards to m inim ize the prejudice to the non-m ovant, particularly the non-m ovant's ability to present evidence at trial. Id. They contend that, here, testing is reasonable, necessary, and relevant to prove their case; particularly, as non-destructive testing has been done and is inadequate to establish the root cause of the fan blade s failure. Moreover, the non-m oving parties are not prejudiced by destructive testing because they have had am ple opportunity to perform their own non-destructive testing, have photographs and video recordings, and have been invited to attend and participate in the destructive testing. There are no less extrem e alternatives available to obtain the necessary inform ation, and adequate safeguards have been taken by providing the parties with protocols, inviting their participation, and m aking available the results of the destructive testing. (ECF No. 47 at 5-7). 3 Having considered Plaintiffs argum ents, and noting no objections to their logic, the undersigned agrees that they have provided good cause for an order perm itting their expert to proceed with destructive testing in accordance with the proposed protocols. Therefore, Plaintiffs m otion is granted. The Clerk is instructed to provide a copy of this Order to counsel of record and any unrepresented party. EN TERED : October 16, 20 14 4
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