Coastal Drilling Company, L.L.C., Certain Underwriters at Lloyd's of London and London Institute Companies all subscribing to insurance policy No. 14720.025 VS Lemoine Marine Refrigeration, Inc. and First Operations, LP

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NOT DESIGNATED FOR PUBLICATION STATE QF LOUISIANA TS COUi F PPEAL FIRST IRCUIT NO 2012 CA 0603 COASTAL DRILLING COMPANY L CERTAIN UNDERWRITERS C AT LLOYD OF LONDON AND LONDON INSTITUTE COMPANIES S ALL SUBSCRIBING TO INSURANCE POLICY N0 14720 025 VERSUS f LEMOINE MARINE REFRIGERATION INC AND FIRST OPERATIONS LP l Judgment u rendered U 2 2013 s Appealed from the 16 Judicial District Court in and far the Parish of St Mary Louisiana Trial Court No 115627 Honorable Charles L Porter Judge ALEXANDER L BURNS ATfORNEYS FOR FREDERICK T III HAAS APPELLANTS PLAINTIFFS NEW ORLEANS LA COASTAL DRILLING COMPANY CCERTAIN LL UNDERWRITERS AT LLOYD S OF LONDON AND LONDON INSTITIJTE COMPANIES DANIEL R ATIQNSON JR ATTORNEYS FOR BATON APPELLEE DEFENDANT LA ROUGE AND FIRST OPERATIONS LP LOUIS C IACOUR JR NEW ORLEANS LA BEFORE KUHN PETTIGREW AND McDONALD JJ PETTIGREW J This is a products liability case in which the plaintiffs Coastal Drilling Company LLC Coastal Drilling and its Insurers seek damages fQr losses caused by a fire that destroyed a drilling barge owned and insured bv plaintiffs The plaintiffs appeal two judgments First they appeal a summary judgment granted in favor of defendant First Operations LP alleged to be liable in produc liability as the manufacturer of a coil s fan air handling uniY a component part of the air conditioning system which allegedly failed and caused the fire The judgment dismissed all of plaintiffs claims against First Operations based on the trial court finding that no genuine issues of material fact s remain and that First Operations is exonerated from any liability The court judgment s was based on evidence establishing that modifications which disabled certain safety components to the unit manufactured by First Operations were made after its delivery to the barge such that piaintiffs failed to prove an essential element of its products liability claim i that a defect attributable to First Operations existed prior to subsequent e modifications to the unit In particular the trial court found plaintiffs evidence failed to create a genuine issue as to causation r whether the fan coil could have reached the e temperatures necessary to ignite the fire Plaintiffs also appeal a second judgment contending the trial court erred in striking the testimony of experts they intended to s in opposition to the summary judgment bmit and in granting summary judgment in fravor of First Operations LP an error they contend was compounded by the ruling disallowing their experts testimony After reviewing the record including the excluded testimonies the trial court reasons for judgments and s considering the plaintiffs arguments on appeal we find no error below and affirm FACTS AND PROCEDURAL HISTORY On June 11 2005 at approximately 3 A a fire erupted in the living quarters 00 M of Coastal Drilling inland barge 21 operating at that time in the waters of St Mary s Parish Louisiana resulting in significant property loss total loss of the drilling rig Based on an alleged theory that the cause and origin of the fire was the heating and ventilating conditioning air HVAC system specifically the alleged malfunction of the ductless fan z coil unit manufactured by First Operataons Coastaf Drilling and i irsurers sometimes s referred to collectively as plainkiffs filed suit on June 9 2006 seeking damages from First Operations and Lemoine Refrigeration t Hi ontrack e q rfor the construction of the Lemoine acquired the i rom a distrib incorp it into the HVAC nit ter ratEd barge design and installed it on the barge The re uthat Lemoine removed a strap rd dicates on thermal sensor on the refrigerant iine in the unit for the unit to operate as a slave unit This action was alleged to have voided the UL certificate on the stand unit alone However the record also reveals that the claims of plaintiffs against Lemoine have been resolved and the only remaining defendant is First Operations The allegations against First Operations were defective design manufacture and failure to adequately warn All evidence presented established that there was no contractual relationship between First Operations and Lemoine nor were there any communications between First Operation and the distributer or Lemoine ftefrigeration concerning the use of the unit on the barge Nonetheless under Louisiana Prod Liability Act La R 9 et cts S 2800 51 seq First Operations as manufacturer may be liable if the plaintiffs can prove that the fire was caused solely by a defect that existed in the ductless fan coil unit at the time it left the control of First Operations Plaintififs petition contains such allegations On November 15 2010 First Operations filed a Motion to Strike Certain Exclude Witnesses in anticipation that Coastal Drilling would submit the testimony of such witnesses to oppose a summary judgment the defendant intended to file First Operations objections to these witnesses are grounded in La Code Evid Art 702 and Daubert v Merrill Dow Pharmaceuticals Inc 509 U 579 113 S 2786 125 S Ct 2d Ed L 469 1993 and its contention that the opinions of plaintiffs anticipated experts James L Mazerat K Derek Lorgeway JefFrey W Kuen and Roger B Tate fail to meet the requirements and standards set forth by law The following day on November 16 2010 First Operations filed the motion for summary judgment essentially asserting that at least two major modifications were made by Lemoine to the unit after it was acquired from First Operations without any communication between those two regarding the alternative modified use of the unit 3 First Operations also contends that t unit was a in v n contemplated by the ae ed li t vays t manufacturer such that the warranty was invalidated It cor therefore as a matter tends of law it cannot be held liable in the absence of proof that the unit contained a defect at the time of delivery to Coastal Drilling and that uch defect was the sole cause of the fire and resultant property loss On January 6 2011 the motion to strike the testimony of plaintiffs experts came up f hearing before the trial court following which the trial court denied the motion and r rendered oral reasons On that same date the triaf Court heard the motion for summary judgment and took that matter under advisement On February 25 2011 after reconsideration of all of the evidence and argument rcounsel the trial court reversed its earlier ruling and granted First Operations M to Strike expert opinion tion cclude F testimony by plaintiffs experts James L Mazerat Fire Investigator Roger B Tate Mechanical Engineer K Derek Longeway Mecnanical Engineer and Jeffrey W Kuen setting forth written reasons for that judgment on February 25 2011 and signing the judgment on March 18 2011 Also on February 25 2011 the trial cou rendered written reasons for granting t summary judgment in favor of First Operations which judgment was signed on March 15 2011 dismissing plaintiffs claims against First Operation with prejudice On March 24 2011 plaintiffs fiied a motion for new trial which the triai court denied on March 25 2011 On Apri 13 2011 p9aintiffs fifed a motion for devolutive appeal which motion was granted on Apri9 14 2011 APPELLANTS PLAINTIFFS ASSIGNMENTS OF ERROR The plaintiffs assert five assignments of error and contend these assignments raise twelve separate issues The assignments f error together with the issues the plaintiffs assert are as follows 1 The District Court erred when it excluded a known scientific phenomenon the pyrolysis long term low the as unreliable theory when neither party raised briefed or argued the issue at the time the motion was originally heard and decided and temperature ignition of wood 4 2 when First perations original motion did not bring Daubert into play a First Qp did not articulate an objection rateoris to pyrolysis as junic scoei with parti ce uiarity b The Uiskric Ce ay ot decide summary rt judgment on issues th rver not raised r briefed by the at parties c s tion beraiion r First ged challe the applicability of scientific pri t4 the instanc facts to ples ec determine causati which s rfor a Deubert n at nds challenge The deb over pyrolysis and the long term ate low temperature ignition of wood s not about the science d rather the debate concerns the nexus of time and temperature needed for ignition to occur This is a genuine issue of materia fact 3 The District Court erred in granting summary judgment because plaintiffs evidence including plaintifFs expert testimony properly considered creates genuine issues of material fact and the district court was persuaded by and applied the wrong law a The District Court may not grant summary judgment where the facts and expert testimony create genuine issues of materiaf fact i Summary judgment in fire specific products liability cases circumstantial evidence is permitted to defeat summary judgment ii Coastal Drilling is entitled to res insa oauitor because no plausible alternaitivE explanation for the fire exists iii Coastal Drilling presented evidence in its opposition to First Operatimns r summary judgment otion for which established genuine issue ef makerial fact which precluded summary judgment b The legal standard refied uRon by the districk court to grant summary judgmen is co to Louisiana law trary The District Cour relied on Calorad law in granting both the motion to strike and the summary judgment The District Court incorrectly held that modifications made by Lemoine Marine entitled First Operations to an 4 absolute defense a An absoiute defense to a produc liability s case does not exist under the comparative fault doctrine b Facts argued created a genuine issue of material fact regarding whether or not the modifeation to the unit was a causative factor qr if it was whether or not the modification was reasonably anticipated by First Operations 5 The District Court erred by denying the motion for new trial without allowing Coastal Drilling to be heard on the serious and improperly raised pyroiysis unreliable science issue a Due Process was violated because appellant was not given notice or fair opportunity to be heard on the new pyrolysis issue 5 b Persuasive authc rthat wood can ritees c ognize and wilQ ignite at iemperat less than 40Q res DISCUSSTON AND ANA XSIS At the outset we note that the tria0 gave very thoraugh reasons for both of court the judgments complained of on appeal there are nine pages of written reasons for granting the summary judgmert and sixteen aages of the court reasons for s reconsideration of and granting the motion te strike the testimony of plaintiffs experts Our careful review of those reasons reveals that the trial court carefully set forth the correct burden of proof as well as the applicable law and then did a clear and thorough application of that law to the facts of this case iNe find the record wholly supports the reasons and analysis employed by the trial court and iro affirming those judgments we hereby adopt the trial court reasons by reference s We also fnd that those reasons dispose of most of the issues raised by the plaintiffs assignments of error on appeal and we will not re the applicable law or anafysis herein We will address the remaining hash portions of plaintiffs arguments that were not before the trial court and were not or directly addressed in its reasons for judgments Assignments of Error One and Two Motion to Strike These two assignments challenge the trial court grant of the motion to strike the s plaintiffs experts According to the plaintiffs assertions no one raised the issue of the unreliability of the pyrolysis term lo temperature ignition of wood and F long v rst Operations motion did not bring Daubert nto Qlay such that the trial court erred in even considering the issue There is absolutely no support for this assertior First Operations pleading entitfed Motion to Strike nd Da Nlotion and Request for Hearing or b rt explicitly alleged that the plaintiffs experts t meet the requirements and standards fail set forth in Daubert Moreover the trial cQUrt expressiy noted that his decision to reconsider and grant the motion was based primarily on his consideration of the factors in La C art 1425 which provides guidelines and a procedure for determining the P admissibility of expert opinion testimony The courk also expressly noted among many other observations supported by the record that the theory posited by proposed expert 6 Mazerat was not based on sufficientfy reiiable scientific theory This significant finding is supported by the opinion testimony of First Oper expert Babrauskas upon whose ions publications Mazerat admi reiiec that t pyrolysis experirnentation that the edly A f tioYic tfiat is not one that thus far has been plaintiffs experts posited conrerne amendable to having theories constr braukas expressed serious doubt as to cked the plaintiffs experts methods of coli ata their hypothesis lack of data and g cti statements and other evidence they used to suppo ruling out other potential causes of t the fire For these and all the other reasor given by the trial court we find the motion s to strike was properly granted To the extent that the plaintiffs assert that the trial court was without authority to reconsider its prior ruling the law is well established that a trial court has the authority to review and reconsider an interlocutory ruling at any time prior to final judgment if the new ruling would do substantial justice See Ryan v State Farm Mutual Auto Ins Co 2010 p 4 App 1 Cir 12 68 So 563 5fa6 writ denied 2011 0961 La 10 22 3d 0172 La 4 60 So 1250 il 3d 1 However most significantly we note thak ir granting the motion for summary judgment the trial court stated that even consrdering the testimony of the proppsed experts its legal conclusions would not be a Our de novo review leads us to the fectee same conclusions as the trial court even consideri tne excluded evidence our legal rg conclusions would be the same Assignments of Error Three and Four Summary udgment Again the trial court gave excellent and thorough reasons for granting summary judgment The applicable law on summary judgment as well as the burden of proof and the elements of a cause of action under Louisiana Products Liability Law La R s S 51 2800 9et seq are well stated and carefully in detail properly applied to the facts of this case in those written reasons The reasons adequately espouse the same findings reached after our de novo review and we see no need to recreate that analysis herein We simply and briefly address plaintiffs ole assertion that is not covered in the trial court reasons namely that the trial court reiied on the wrong i standard Ci s gal e 7 Colorado law in granting the iudg T sse is meritless Although the trial t a his t ia court very clearly cited and was guic7ed by cases fr other circuits khis was very clearly ro limited in scope ta those courts tr af khe reliability of the pyrolysis theory t ie at advanced by the plaintifFs expe oer iis c fHo beth hefore and after ts ior se v ver citing those cases and relying on ever ras piaintiffs point out language in a those cases for that limited purpose the trial courk in this matter specifically delineated applicable Louisiana law and applied that law and that law only to the facts of this case And while we agree with the plaintiffs contention that the mere finding of a modification alone is ordinarily nok an absolute defense to the appellants claims implicit in the trial court reasons is the finding also reached on our de novo review that such s modification was not and should have not been reasonable anticipated by First Operations Assignment of Error Number Five Denial of Due Process The plaintiffs argue they were denied due pracess by the trial court failing to give s notice and a fair opportunity to be heard nd enying kheir mokion for new trial without granting a contradictory hearing hereon Hlowever Gr r of he record reveals that viev the plaintiffs motion for newtriaFwas notbased or any newevidence that had not been previously introduced that may affect the court ruling Indeed plaintifFs basis for a new s trial is a re of all the same arguments they advance for the triaf court allegedly hashing s improper consideration of issues in granting the mction to strike As articulated earlier herein the trial court did not err there were nc procedural irregUlarities n the trial court s holding a Daubert hearing and kh Same all wikhout mare did not warrant se gations the plaintiffs being granted a contradictory hearing prior to the trial court denial qf a s motion for new triaL CONCLUSTON Fpr all the foregoing reasons as well as the reasons given by the trial court for both judgments at issue finding no error we afFrm the judgments of the trial court granting First Operations Motion to Strike as well as granting First Operations Motion for s Summary Judgment and dismissing the elaims of the plaintiffs against it All costs of this appeal are assessed to the piaintiffs appellants AFFIRMED 9

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