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In re M/V MSC Flaminia

United States District Court, S.D. New York

July 28, 2017

IN RE M/V MSC FLAMINIA

          OPINION & ORDER

          KATHERINE B. FORREST United States District Judge.

         This large, complex maritime matter concerns an explosion and ensuing fire that occurred aboard the M/V MSC Flaminia (“Flaminia”), on July 24, 2012. There are numerous parties who have asserted all manner of claims against one another, seeking to assign/avoid responsibility for liability and damages. The parties have agreed to a phased trial, with causation a first order of business. That trial shall commence on September 11, 2017.

         Pending before the Court are a massive array of motions: motions for summary judgment, motions to preclude expert testimony pursuant to the principles set forth in Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993), and motions to strike declarations. The volume of paper has run into the thousands of pages and has occupied a large section of the floor in the undersigned's personal office. This opinion resolves the remaining Daubert motions.[1] The Daubert motions addressed herein are as follows:

1. Stolt Tank Containers B.V.'s and Stolt-Nielsen's USA, Inc.'s (together, “Stolt”) and Deltech Corporation's (“Deltech”) motion to preclude Paul Beeley (proffered by MSC Mediterranean Shipping Company S.A. (“MSC”)), (ECF Nos. 1037, 1059);
2. Stolt's motions to preclude additional witnesses proffered by MSC: Robert Ahlborn, Michael Daum, David Hughes, Brian Ott, and Robert A. Richard, (ECF Nos. 1030, 1026, 1017, 1034, & 1013);
3. Deltech's motion to preclude David A. Robbins (proffered by Conti 11. Container Schiffahrts-GMBH & Co. KG MS and Niederlebe Schiffahrtgessellschaft GMBH & Co., KG (“Conti/NSB”)), (ECF No. 1053);
4. Stolt's motion to preclude additional witnesses proffered by Conti/NSB: David Robbins, Ian Wadsworth, and Edward Hammersley, (ECF No. 1009);
5. Stolt's motion to preclude John Walker (proffered by Conti/NSB), (ECF No. 1020);
6. MSC's motion to preclude S. Gregory Borossay (proffered by Stolt), (ECF No. 1043);
7. Conti/NSB's motion to preclude various firefighting experts: Sean Tortora (proffered by Cargo Claimants), Todd Duke (proffered by Stolt), and John Gow (proffered by Bulkhaul Ltd. and Bulkhaul USA (together, “Bulkhaul”)), (ECF No. 1046);
8. Chemtura Corp., Chemtura Italy S.R.L., Chemtura Europe GMBH, (collectively, “Chemtura”), Rubicon LLC (“Rubicon”), and Bulkhaul's joint motion to preclude portions of the report of Deborah Kaminski (proffered by Deltech), (ECF No. 1068); and
9. Conti/NSB's motion to preclude David Gossman and other experts testifying that there was a preexisting fire.

         In short, the Court rules on these motions as follows:

1. Stolt and Deltech's motions to preclude Beeley are GRANTED in part and DENIED in part.
2. Stolt's motion to preclude Ahlborn, Daum, Hughes, Ott, and Richard is GRANTED in part and DENIED in part;
3. Deltech's motion to preclude Robbins is GRANTED in part and DENIED in part;
4. Stolt's motion to preclude Robbins, Wadsworth, and Hammersley is GRANTED in part and DENIED in part;
5. Stolt's motion to preclude Walker is GRANTED;
6. MSC's motion to preclude Borossay is GRANTED;
7. Conti/NSB's motion to preclude various firefighting experts is GRANTED in part and DENIED in part.
8. Chemtura, Rubicon, and Bulkhaul's motion to preclude portions of Kaminski's report is DENIED;
9. Conti/NSB's motion to preclude David Gossman and other experts testifying that there was a preexisting fire is DENIED.

         At the outset, the Court notes that there are bases for preclusion common to many of the proffered experts. Some of these issues are potentially curable with a trial declaration. Others are not. The Court has directed the parties to submit trial declarations from proffered experts not later than Monday, August 14, 2017, and to file any motions for reconsideration of this Opinion & Order in light of the trial declarations not later than Friday, August 18, 2017. (ECF No. 1274.)

         The Court briefly summarizes the common bases for preclusion as follows. As discussed further in this Opinion & Order, experts are not percipient witnesses to facts, and they cannot offer factual narratives in the form of expert testimony that would displace the role of the factfinder. The Court therefore precludes those portions of expert reports that simply present factual narratives about the events at issue in this action, or that make factual assertions regarding the cause of the casualty (or its extent) that are properly for the factfinder to make. Additionally, the Court will not admit opinions premised on speculation or that amount to ipse dixit, i.e., assertions that something is true because the expert says so.

         The Court also precludes expert testimony in whole or part that is outside the proffered witness's established area of expertise; the Federal Rules of Evidence-and this Court-require that proffered experts confine their testimony to the subjects on which they are qualified to opine. In short, experts must stay in their lane, and this Court will police inappropriate drifting. Along these lines, experts may not simply serve as a vehicle for the opinions of others, especially when the proffered witness does not possess the requisite expertise. The Rules of Evidence allow experts to rely upon inadmissible evidence or upon experts outside their field if it is the kind of data upon which an expert in their field would reasonably rely, but only if in doing so they develop their own, separate opinions applying their specific expertise. The rules also allow an expert to present the work of others if the expert supervised, directed, or participated in that work, and if the expert is qualified in the field and could perform the work themselves. By contrast, the Court will preclude proffered witnesses who simply aggregate or recite the opinions of others, especially if they are not qualified in the field in which they opine. A metallurgist may testify as to metallurgy; a chemist as to chemistry. They cannot speak for each other.

         I. GOVERNING LEGAL PRINCIPLES

         This is a complex case. It is complex both because of the number of parties asserting and defending against all manner of claims, but also because technical issues lie at the core of the dispute. How did the fire start in “Hold 4”? What caused the explosion? Was it caused by one type of cargo or several in combination? Once a fire had ignited, did those in positions of responsibility take the appropriate responsive steps? This is a classic case in which expert assistance is appropriate and the Court anticipates it will be of tremendous assistance. See United States v. Bilzerian, 926 F.2d 1285, 1294 (2d Cir. 1991) (noting that the use of experts in complex, technical cases may assist the trier of fact).

         The trial will be to the bench - and the Court looks forward to the trial as one in which very interesting issues will be addressed. But the fact that the trial will be to the bench does not diminish, let alone eliminate the requirements of Rule 702 of the Federal Rules of Evidence (“Rule 702”) and interpreting case law. In short, the fact that the trial is to the bench does not signal a “free-for-all” vis-à-vis expert witnesses. See State of New York v. United Parcel Serv., Inc., No. 15-cv-1136, 2016 WL 4735368, at *1 (S.D.N.Y. Sept. 10, 2016). Experts are entirely appropriate to assist the Court with complex, technical matters. But they are not percipient witnesses (except in atypical cases, not here applicable), and they are not a vehicle to provide a factual narration. See, e.g., SEC v. Tourre, 950 F.Supp.2d 666, 675 (S.D.N.Y. 2013); Island Intellectual Prop. LLC v. Deutsche Bank A.G., No. 09-cv-2675, 2012 WL 526722, at *2 (S.D.N.Y. Feb. 14, 2012); Highland Capital Mgmt., L.P. v. Schneider, 551 F.Supp.2d 173, 187 (S.D.N.Y. 2008); In re Rezulin Prods. Liab. Litig., 309 F.Supp.2d 531, 551 (S.D.N.Y. 2004).[2]

         Rule 702 is the primary locus of the principles governing appropriate use of experts. It 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 the case.

Fed. R. Evid. 702. The overarching purpose of the Rule 702 inquiry is “evidentiary relevance and reliability-of the principles that underlie a proposed submission. The focus, of course, must be solely on principles and methodology, not on the conclusions they generate.” Daubert, 509 U.S. at 595; see also Major League Baseball Props., Inc. v. Salvino, Inc., 542 F.3d 290, 311 (2d Cir. 2008).

         Once qualified, an expert is “permitted wide latitude to offer opinions, including those that are not based on firsthand knowledge or observation.” Daubert, 509 U.S. at 592; see also Major League Baseball, 542 F.3d at 310.[3] This latitude is premised upon legal principles that assume a base level of reliability - leaving to the trier of fact ultimate determinations regarding, inter alia, weight. Daubert, 509 U.S. at 592. Threshold determinations regarding reliability are based on a review of a proposed expert's qualifications, whether the proffered opinions are based on reliable data and methodology, and whether the testimony will assist the trier of fact rather than usurp his or their role. See, e.g., Nimely v. City of New York, 414 F.3d 381, 396-97 (2d Cir. 2005); Arista Records LLC v. Lime Grp. LLC, No. 06-cv-5936, 2011 WL 1674796, at *1 (S.D.N.Y. May 2, 2011).

         “Daubert motions” are routinely used to challenge an expert's qualifications, data, methodology, or the propriety of his/her opinions. The Daubert motions described above assert challenges in each of these areas. The Court therefore reviews the particular principles applicable to these motions.

         Even qualified experts may not, however, testify as to certain matters. For example, courts routinely preclude experts from testifying as to the credibility of other witnesses or evidence. See United States v. Scop, 846 F.2d 135, 142 (2d Cir. 1988), modified on reh'g, 856 F.2d 5 (2d Cir. 1988); In re Blech Sec. Litig., No. 94-cv-7696, 2003 WL 1610775, at *21 (S.D.N.Y. Mar. 26, 2003) (citing Scop, 846 F.2d at 142); LinkCo, Inc. v. Fujitsu Ltd., No. 00-cv-7242, 2002 WL 1585551, at *2 (S.D.N.Y. July 16, 2002). They also may not supplant the role of the factfinder by reciting factual narratives or by weighing the evidence to reach factual determinations. See Tourre, 950 F.Supp.2d at 675.

         A. Qualifications

         Determining that an expert is in fact an expert is the first step in ensuring reliability. Qualified expert witnesses enter the courtroom with a mantle of assumed expertise-“ahh, ” a trier of fact may say, “he/she will be able to explain all of this to me.” It follows that a non-expert, playing the role of an expert, may induce misplaced reliance. Determining whether a witness is in fact qualified to offer expert testimony is a necessary screening inquiry. See Daubert, 509 U.S. at 592 n.10; Arista Records, 2011 WL 1674796, at *2.

         Expertise may be acquired in a number of ways, and most true experts have a combination of qualifying experiences: Most, but not all, experts have an educational background in a relevant field, and a qualified expert may have training or on-the-job experience that provided necessary skills to render the proffered opinions. See United States v. Tin Yat Chin, 371 F.3d 31, 40 (2d Cir. 2004) (citation omitted) (“To determine whether a witness qualifies as an expert, courts compare the area in which the witness has superior knowledge, education, experience, or skill with the subject matter of the proffered testimony.”); see also Cary Oil Co. v. MG Ref. & Mktg., Inc., No. 99-cv-1725, 2003 WL 1878246, at *2 (S.D.N.Y. Apr. 11, 2003). If, however, there is a mismatch between the area of expertise and the proffered opinions, there is a possibility of cloaked unreliability. An individual with expertise in one field may not offer opinions in another: the expertise and area of proffered opinions should be closely related. See Tin Yat Chin, 371 F.3d at 40.

         In the Second Circuit, courts examine an expert's qualifications in light of the “liberal thrust” of the Federal Rules and the Rules' “general approach of relaxing the traditional barriers to “opinion' testimony.”[4] See Daubert, 509 U.S. at 588; In re Rezulin, 309 F.Supp.2d at 559 (“The Second Circuit has taken a liberal view of the qualification requirements of Rule 702, at least to the extent that a lack of formal training does not necessarily disqualify an expert from testifying if he or she has equivalent relevant practical experience.”). If an expert's training and experience are in a field closely related to the subject matter of the proposed testimony, that showing may be sufficient to meet Rule 702's qualification standards in appropriate circumstances. See Arista Records, 2011 WL 1674796, at *3 (citation omitted); Johnson & Johnson Vision Care, Inc. v. CIBA Vision Corp., No. 04-cv-7369, 2006 WL 2128785, at *5 (S.D.N.Y. July 28, 2006).

         B. Reliable Data and Methodology

         Even qualified experts must, however, base their opinions on reliable data and a valid methodology. Daubert, 509 U.S. at 592-93. In the absence of either, the expert's opinions are unreliable and should not be allowed. See id. Whether the data and methodology meet the requisite standards “entails a preliminary assessment of whether the reasoning or methodology underlying the testimony is scientifically valid and of whether that reasoning or methodology properly can be applied to the facts in issue.” Id. Among the questions a court considers is whether the theory or methodology can be tested, whether it has been subjected to peer review and publication, whether it has a known or potential rate of error, and whether there is “general acceptance” of the methodology or theory. Id. at 593-94.

         An opinion that is speculative or conjectural is not based on a reliable methodology and fails to comply with the standards in Rule 702. See Daubert, 509 U.S. at 590 (noting that “the word ‘knowledge, '” as used in Rule 702, “connotes more than subjective belief or unsupported speculation”); see also Major League Baseball, 542 F.3d at 311 (citation omitted). Similarly, conclusory opinions-often referred to as ipse dixit-fail to provide a methodology that would allow a court to assess reliability. See Major League Baseball, 542 F.3d at 311 (citation omitted); Bridgeway Corp. v. Citibank, 201 F.3d 134, 142 (2d Cir. 2000) (citation omitted). Ipse dixit opinions are therefore excludable on that basis. See, e.g., Nimely, 414 F.3d at 396-97. It should be noted that there are instances in which qualified experts proffer only ipse dixit-when in fact it appears that they had the ability to support their opinions. However, the disclosure obligations set forth in Rule 26 do not provide for a “do over”-in most cases, what is done is done.[5]

         C. Experts as Aggregators

         From these principles flow another with particular relevance to this case: experts may rely on one another, but they may only do so if the requisite standards for reliability are met each step of the way.[6] If one expert's opinions are built upon a foundation laid by another, reliability of the latter requires reliability of the former.

         There are instructive circuit court cases as well as a series of helpful district court cases that discuss the issues that arise in this regard. See, e.g., Forte v. Liquidnet Holdings, Inc., 675 F. App'x 21, 23-24 (2d Cir. 2017) (noting that a failure to independently verify data used in the report can itself constitute grounds for preclusion); Dura Auto. Sys. of Ind., Inc. v. CTS Corp., 285 F.3d 609, 614 (7th Cir. 2002) (“A scientist, however well credentialed he may be, is not permitted to be the mouthpiece of a scientist in a different specialty. That would not be responsible science.”); In re TMI Litig., 193 F.3d 613, 716 (3d Cir. 1999) (“Crawford-Brown's failure to assess the validity of the opinions of the experts he relied upon together with his unblinking reliance on those experts' opinions, demonstrates that the methodology he used to formulate his opinion was flawed under Daubert as it was not calculated to produce reliable results. Thus, the District Court did not abuse its discretion in excluding Crawford-Brown's testimony.”); TK-7 Corp. v. Estate of Barbouti, 993 F.2d 722, 732 (10th Cir. 1993); U.S. Bank Nat'l Ass'n, 112 F.Supp.3d at 131 (S.D.N.Y. 2015); Member Servs., Inc. v. Sec. Mut. Life Ins. Co. of N.Y., No. 06-cv-1164, 2010 WL 3907489, at *27 (N.D.N.Y. Sept. 30, 2010); Malletier v. Dooney & Bourke, Inc., 525 F.Supp.2d 558, 664 (S.D.N.Y. 2007) (citing Dura Auto. Sys., 285 F.3d at 614) (excluding a critical conclusion based on a regression analysis that the proposed expert had not performed and was unqualified to do and explaining that “the regression analysis could only be admissible if [the excluded expert] is permitted to give an opinion . . . of other experts to the extent that they are of the type that would be reasonably relied upon by other experts in the field . . . . But in doing so, the expert witness must in the end be giving his own opinion. He cannot simply be a conduit for the opinion of an unproduced expert.”).

         In Dura Automotive Systems, the district court disqualified Dura's sole expert witness and, finding that the remaining evidence was insufficient to create a triable issue of fact, granted summary judgment for its adversary, CTS. The Seventh Circuit affirmed the court's preclusion of the expert.

         Dura Automotive Systems involved environmental contamination claims. A key issue involved the relative locations of the groundwater stream below the CTS plastic manufacturing plant versus the Dura Automotive plant. See 285 F.3d at 611. Dura's expert offered opinions regarding whether CTS's plant was within the “well field's capture zone”-that is, whether groundwater could be expected to flow to the well field. See id. To determine the flow required mathematical modelling of soil porosity, pumping flow and other data. See id. Dura's proposed expert sought to testify regarding the results of such modelling.

         The Seventh Circuit noted that Dura's expert was a hydrogeologist who was admittedly not an expert in mathematical models of groundwater flow and that he had further conceded that the modelling that he relied on for his conclusion had been done by other employees of his consulting firm using two models. Id. at 611-12. When CTS moved to exclude the expert, Dura responded by offering affidavits from the supporting personnel who had performed the underlying work, and CTS moved to strike them; the district court had granted this motion and found that standing alone, Dura's expert could not support the reliability of the models. Id. at 612.

         The Court agreed that the affidavits had been properly struck and that without them, the proposed expert lacked an adequate foundation for his testimony. Id. The Court stated that “[a]n expert witness is permitted to use assistants in formulating his expert opinion, and normally they need not themselves testify . . . Analysis becomes more complicated if the assistants aren't merely gofers or data gatherers but exercise professional judgment that is beyond the expert's ken.” Id. at 612-13. While acknowledging that it is common for an expert to base his/her opinion in part on what a different expert believes, the Court found that the issue became more complicated if the soundness of the underlying expert judgment was in issue: “Suppose a thoracic surgeon gave expert evidence in a medical malpractice case that the plaintiff's decedent had died because the defendant, a radiologist, had negligently failed to diagnose the decedent's lung cancer until it was too advanced for surgery. The surgeon would be competent to testify that the cancer was too advanced for surgery, but in offering the additional and critical judgement that the radiologist should have discovered the cancer sooner he would be, at best, just parroting the opinion of an expert in radiology competent to testify . . . .” Id. at 613. The Court found that the principle was the same in the case before it: While Dura's proposed expert could testify as to the area he was an expert in, he could not provide conclusions that depended on the modelling he had not and could not himself competently perform. Id. at 614.[7]

         Similarly, in TK-7, the Tenth Circuit affirmed the preclusion of a proffered expert, Dr. Boswell, who had relied on projections performed by another individual whom Boswell had determined was an expert. The Court stated that Boswell lacked the expertise to perform the projections himself and there was no indication in the record that he had any familiarity with the methods of reasoning of the individual who had performed the projections. See 993 F.2d at 732. The Court stated that “Dr. Boswell's lack of familiarity with the methods and the reasons underlying [the other individual's] projections virtually precluded any assessment of the validity of the projections through cross-examination of Dr. Boswell.” Id. To satisfy Rule 703 of the Federal Rules of Evidence, which allows an expert to rely on hearsay, nonetheless requires expert validation subject to cross-examination. Id.

         II. DISCUSSION

         A. Stolt's and Deltech's motions to preclude experts

         1. Robert Ahlborn

         MSC has proposed Robert Ahlborn as an expert in domestic and international regulatory regimes applicable to the ocean carriage of dangerous goods. Ahlborn submitted both an initial and a rebuttal report. He attached his C.V. to his initial report at Appendix 1. (Ahlborn Rpt., ECF No. 1033-1 at 48.) His summary of qualifications states he has experience in regulatory compliance, among other areas. His professional experience includes almost eighteen years at the National Cargo Bureau, Inc., as Vice President of Liner Activities. His duties and responsibilities in that position include: to “[o]versee Hazmat policy and programs, ” “[d]evelop and maintain various Hazmat / Dangerous Goods training courses, ” and “[d]evelop and maintain internal Hazmat / Dangerous Goods training program.” (Id.) Prior to this position, Ahlborn worked as Director of Security and Dangerous Goods for Hapag-Lloyd (America), Inc. for over thirty years. (Id.) He lists among his “Key Accomplishments:” Co-Founder (and several terms as Chairman) of the International Vessel Operators Dangerous Goods Association, ” his representation of that organization at the International Maritime Organization's Sub-Committee on Dangerous Goods, Solid Cargos and Containers, and membership on the “Dangerous Goods Advisory Council.” (Id.)

         Ahlborn's executive summary states that “Deltech's DVB is sensitive to heat and must be stabilized via a chemical inhibitor in order to prevent auto-polymerization.” He states further, “[Deltech's] procedures included routing shipments of DVB through northern U.S. ports instead of New Orleans during warm periods of the year, chilling the DVB prior to loading it into tank containers, instructing carriers to keep DVB shipments out of direct sunlight and away from heat sources, and requiring that DVB not be loaded aboard vessels if its temperature was at or above 27 [degrees] C.” (Id. at 3.) Based on these procedures, Ahlborn offers the following opinion:

In my opinion, these procedures were flawed in that they did not account for a number of variables outside of Deltech's control, whereas many of these variables could have been controlled by the use of temperature-controlled equipment . . . . Despite having instituted these procedures to prevent future incidents of auto-polymerization, Deltech violated its own shipping procedures with respect to the casualty DVB shipments by routing them through New Orleans during the hottest part of the year.

(Id.) He offers an additional opinion: “Deltech also failed to fulfill a number of its obligations under the applicable hazardous material regulations: failing to properly test its DVB, failing to prepare valid shipping papers, failing to provide emergency response information, and failing to certify that the DVB shipments were in proper condition for transportation.” (Id. at 2.) Ahlborn also makes a number of factual statements including:

Stolt knew that Deltech's DVB needed to be stabilized to prevent auto-polymerization . . . . Stolt also knew that temperature and oxygen availability were critical to preventing auto-polymerization of Deltech's DVB. However, Stolt entirely disregarded this information in terms of vetting the DVB. When Stolt booked the ocean carriage of the DVB with MSC, it did not advise MSC of any of these properties and risks and, in fact, misrepresented the DVB as posing no risk to persons, property or the marine environment under the applicable international regulations. Stolt did nothing to comply with the handling instructions and warnings provided by Deltech and likewise failed to pass on these instructions and warnings to MSC, with the result that MSC had no knowledge of these instructions. In its handling of the DVB shipments, Stolt failed to meet a number of its obligations under the applicable hazardous materials regulations.

(Id. at 3.) And,

As a result of the DVB being loaded into a sealed tank container, MSC relied solely upon the information provided by Stolt in its handling of the DVB shipments. Because Stolt misrepresented the properties and risks of the DVB shipments, MSC was unaware of both the prior incidents involving Deltech's DVB and the risks posed by the DVB shipments when it stowed the cargo aboard the Vessel . . . MSC exercised reasonable care under the circumstances and had no reason to suspect that the DVB shipments were being misrepresented by Stolt.

(Id.) And finally, “[i]n summary, Deltech and Stolt both mishandled the DVB shipments, with the end result being that MSC was unaware of the true risks presented by the DVB shipments, including the risk of auto-polymerization and the potential for explosion and fire.” (Id.)[8] Following this summary, Ahlborn's report consists of forty-six pages of text, only eight pages of which discuss the regulatory scheme of the international carriage of dangerous goods. (See Ahlborn Rpt., ECF No. 1033-1 at 3-11.) Starting at page 11, and continuing for the remainder of his report, Ahlborn provides a lengthy factual narrative of Deltech's and Stolt's prior experience with DVB shipments, Deltech's shipping procedures, a discussion of a tank container company's alleged refusal to handle Deltech's shipments of DVB, the relationship between Deltech and Stolt, booking requests and procedures between Deltech and Stolt, bookings by Stolt with MSC, and facts relating to the booking, loading and carriage of the DVB at issue in this case.

         Stolt has moved to preclude Ahlborn (both his initial report and his rebuttal report) on the basis that he lacks the qualifications to provide the array of opinions and statements contained in his report, and because much of his report usurps the Court's role as the finder of facts. With one narrow exception, the Court agrees with Stolt. The Court therefore precludes all but the narrow testimony from Ahlborn outlined below.

         As an initial matter, the Ahlborn report is one of the many reports presented to the Court in connection with this matter in which “experts” purport to provide extensive factual narrative-to gather facts from throughout the record, to tell a story favorable to their client and with much advocacy embedded throughout, and to purport to “opine” on the ultimate fact issues that this Court must find only after trial. This is not a proper use of expert testimony. Thus, at the outset, the factual narrative that occurs from page 11 to the end of the report is improper. The law setting forth the applicable principles is discussed above. In addition, the Court notes that such an assembly embedded with advocacy is not what this Court needs from an expert-the lawyers can do all of that in opening or closing statements and proposed conclusions of fact and law. Simply put, this narrative may have been helpful for the lawyers to understand their case, or for the clients, but it is not helpful to the Court, and is also improper.

         In addition, it is evident from the Court's recitation of only some of the “opinions” that Ahlborn purports to present that his report exceeds the bounds of his role and qualifications as an expert. An expert does not “find” facts, an expert does not opine on a party's state of mind (that a party “mislead” or “misrepresented” something to another), and an expert certainly cannot state that his client, MSC, was or was not aware of anything. Most egregious in this regard is the ultimate statement, “MSC was unaware of the true risks presented by the DVB shipments, including the risk of auto-polymerization and the potential for explosion and fire.”

         In addition to these major failings in Ahlborn's report, he makes a number of statements as to which he lacks the requisite expertise. He is not an expert in chemistry-yet his report is full of statements of fact about auto-polymerization and the characteristics of DVB.

         It is too late for Ahlborn to redo his report and limit his opinions to those that would have been proper. However, the Court does find that an overview of the regulatory environment would be helpful. It is likely that this can be the subject of conclusions of law as to which no testimony is necessary. However, for present purposes, MSC should assume that Ahlborn would only be allowed to testify as to the contents of pages 3-11 of his report.

         2. Paul Beeley

         MSC has proposed Paul Beeley as an expert in the cause and origin analysis of seaborne casualties. His C.V. is attached to his report at Appendix 1. (Beeley Rpt., ECF No 1039-1.) He is a “[s]pecialist in fire and explosion, ” with “37 years [of] experience in forensic investigation.” (Id. at 135.) His qualifications include inter alia, a masters degree from the Graduate Centre for Studies in Combustion and Explosion at the University of Leeds in 1974, and a Doctorate in “high temperature ignition phenomenon” from the University of Leeds in 1979. (Id.) His professional experience includes almost twenty-four years as a consulting scientist at “Dr. JH Burgoyne and Partners, ” a consulting firm where he became a partner in 1985, twelve years as “Director and sometimes Chairman of Burgoyne Consultants Ltd., . . . a sister company to Burgoyne and Partners specializing in safety management and the provision of technical advice on avoid[ing] . . . fire and explosion, ” and working at his own practice since 2003. (Id. at 136.) He asserts “[i]n addition to determining origin and cause[, ] I am also familiar with factors relating to the development and spread of fire and smoke . . ., ” and “I have investigated fires resulting from a wide range of causes including mechanical and electrical failure, self heating, and intentional fire raising.” (Id.) Notably, he has no special expertise in chemistry. He proclaims to have “extensive experience of incidents where fires and explosions have resulted from the decomposition of thermally unstable chemicals or mixtures, ” a majority of which involved industrial processes. (Id. at 137.).

         Beeley's report contains a lengthy recital of the incident, including the discovery of smoke and fumes, the crew's emergency response, the release of CO2, and the explosion. (Id. at 12-21.) He describes the cargo contained in Hold 4, the surveys, samplings, and inspections he conducted, and the results of analyses conducted on the samples (taken largely from the report prepared by FORCE Technology). (Id. at 24-90.) He then segues into a discussion of the physical and chemical properties of divinylbenzene (“DVB”), and a summary of previous incidents involving DVB (taken mostly from the internet). (Id. at 91-105.) In section 11.3.2 of his report, Beeley states:

Divinylbenzene . . . (is) capable of undergoing polymerization reactions which (is) accompanied by the release of heat. In order to prevent self polymerization during storage the product has to be dosed with a chemical inhibitor. To be effective the inhibitor requires the presence of dissolved oxygen. In the process of chemical inhibition both inhibitor and oxygen undergo chemical reaction so that their concentration diminishes with time . . . . The polymerization reaction can start spontaneously if the concentration of inhibitor present in the product falls below the required concentration or if the concentration of dissolved oxygen in the divinylbenzene diminishes to the extent that the inhibitor can no longer be effective. Alternatively reaction can be initiated by contaminants, including water.

(Id. at 117.) He additionally states:

The source of the vapors and the divinylbenzene is considered to be a runaway polymerization involving one or more of the divinylbenzene containers shipped by Stolt/Deltech. This conclusion is supported by the analysis contained in the report by Exponent, which indicates that the properties of the product shipped by Stolt/Deltech were such that in the period when the consignments of DVB were at the terminal in New Orleans, and during the duration of the voyage, the material became unstable due to consumption of oxygen and consequent failure of chemical inhibition so that on the morning of 14th July it underwent runaway self polymerisation.
It is also noted that the Exponent report is critical of the manufacturing process carried out at Deltech and the failure to ensure that the product was adequately aerated at the time it was shipped from the factory.

(Id. at 121.) Beeley notes:

It is not possible on present evidence to be certain that thermal runaway resulting in the ignition of the plume emanating from the tank was the ignition source for the explosion, but it is noted that there are clear indications in the product literature that fires and explosions can occur as a result of the self polymerisation of DVB.

(Id. at 127.) Yet he does little to resolve the doubt than to conclude “to the extent that it affects liability[, ] the identity of the ignition source is almost irrelevant.” (Id. at 128.)

         In his conclusion, in addition to identifying the cause of the explosion, Beeley opines as to why DVB allegedly underwent polymerization:

12.3 The flammable aerosol was formed as a result of the divinylbenzene in one or more of the containers shipped by Stolt/Deltech undergoing an exothermic runaway self polymerisation process. Potential reasons why the material underwent this process include lack of adequate chemical inhibition and/or aeration at the time of loading, chemical contamination, and the exposure of the consignment to ambient temperatures which, whilst not abnormal for marine transportation, were sufficient to cause the material to undergo a runaway reaction. This is supported by:
a. The study carried out by Exponent which indicates that the product produced by Deltech was likely to undergo runaway self polymerisation on exposure to the ambient temperatures encountered after leaving the factory.
b. Previous instances of Deltech products undergoing runaway self polymerisation.
c. The apparent lack of controls on the degree of aeration during manufacture and storage set out in the report by Exponent.

(Id. at 133.)

         Stolt has moved to preclude Beeley on several bases: (1) much of his report consists of improper factual narrative, (2) his opinions lie beyond his area of expertise because he is a “cause and origin” specialist offering opinions about the chemical properties of DVB and the proper chemical inhibition and oxygenation of DVB, (3) his proposed testimony is speculative and lacks a reasonable degree of certainty. (Mem. in Support of Motion to Exclude Paul Beeley, ECF No. 1038.)

         The Court agrees that Beeley's report must be precluded in part due to his factual narratives, his conclusions that displace the role of the factfinder, his failure to stay within the lane of his expertise, and the portions of his report that are cumulative of other experts, particularly that of Brian Ott. First, as with many other experts here, the Court precludes Beeley's extensive factual narrative presented on pages 7 to 104 of his report. (See Beeley Rpt., ECF No. 1038-1 at 8-105.) In addition, the Court precludes Section 12 of Beeley's report, which contains factual conclusions regarding what caused the casualty; such determinations are properly made by the factfinder, not presented by an expert. (See id. at 131-32.)

         Second, Beeley is an expert in fire investigations and forensics; he is not an expert in chemistry or in self-reactant monomers. Section 10 of his report, in which he presents information about the properties of DVB and previous DVB incidents, is beyond his scope of expertise and cumulative of the testimony of Ott, who is a chemistry expert; is it therefore precluded. The Court also precludes: (1) Beeley's discussion of “self polymerization” of DVB beginning at the top of page 117 and ending after the first full paragraph of page 118 of the report, and (2) Beeley's discussion of the properties of DVB beginning with the first full paragraph on page 125 and through the first full paragraph on page 126. While Beeley may rely upon the opinions and analyses of others who are chemistry experts, he cannot present their expertise as his own.

         The motion to preclude Beeley is therefore GRANTED in part as discussed above, and DENIED as to the remainder of his report.

         3. David Hughes

         MSC has proposed David Hughes as a metallurgical expert. His C.V. is attached to his report at ECF No. 1021-2. He is a “Consultant Metallurgist, ” with expertise in “providing metallurgical services in relation to major ship casualties” involving “constructive total loss, hull and structural failures, cargo tank issues (corrosion)” etc. (Hughes Rpt. App'x, ECF No. 1021-2 at 1.) His educational qualifications include a Higher National Certificate (roughly equivalent to one year of university) in Metallurgy and a Graduateship in Metallurgy (equivalent to Honors degree). (Id. at 5.) Since 2006 he has worked at his own metallurgical consultancy providing services related to “metallurgical matters, ” and “casualty investigation-structural, corrosion and machinery breakdowns.” (Id. at 4.) Prior to that he worked as a “Consultant Metallurgist/Director” at Taylor Marine TR Little (2002-2006), and a “Group Metallurgist” at Alfred H. Knight Consultancy (1997 - 2002), where he was employed as a “consultant metallurgist carrying out mainly marine casualty/ failure investigations, ” and “provided managerial, technical and consultancy support in respect of ferrous related cargo matters.” (Id. at 4-5.)

         Hughes's executive summary explains that the “purpose of the metallurgical investigations was primarily to assist the Fire Experts and to try and determine any damages/conditions to the Tanks that may have pre-existed the explosion and thus may have contributed to, or been associated with, the cause of the explosion, ” and determine which damages were consequential (occurred after the explosion) and which were causative. (Hughes Rpt., ECF No. 1021-1 at 5.) The report notes that much of the damage to the thirty-one tanks examined was caused after the explosion. (See id) Hughes states “[t]he only tank(s) that could be considered as possibly causative would be, in my view, those that exhibited some form of damage that could have breached the tank in some manner without any significant collapse of the stack. The obvious candidates are either by mechanical cracking of the tank shell, a chemical reaction causing overheating and melting through the stainless steel tank wall and/or a release of vapors . . . .” (Id. at 69.) Hughes discounts the possibility of the tanks having developed cracking prior to the explosion. (See id.)

         He also rules out over pressurization of tanks J, K, and I: “None of the visual damage observed to any of the thirty one tanks, including Tanks A, C, I, J and K was consistent with damage that might be expected if any of the tanks had failed due to a significant over-pressurisation event. Under such circumstances, expansion of the tank body and associated ruptures of the shell plate would be expected. I did not observe any such damage to any of the Tanks.” (Id. at 29.)

         Regarding melting of the stainless steel, Hughes notes “[o]f the thirty one tanks recovered, the only ones that actually exhibited melting of the stainless steel and/or with holes/fractures not associated with the final crushed condition, are Tanks A, C, J, K and I. All five tanks exhibited melting from inside the respective Tank. It should be understood that where melting had occurred, this was not melting of the original wrought stainless steel plate, but melting of the plate that had already been degraded mainly by carburisation, which has the effect of significantly lowering the melting point of the alloy.” (Id. at 69.) With respect to tanks I, J, and K, which had carried DVB, Hughes made the following observations:

1. Tank I: “It is clear that this tank has been heated from the inside to significant temperatures. The appearance of the crushed melt holes indicates that the melting occurred prior to the substantial crushing. It is not possible to say precisely, relative to the explosion, when the melt holes were formed. It is possible that some melt holes were (part) formed prior to the explosion and some were formed afterwards. It is also possible that all the melts holes were formed after the explosion.” (Id. at 57.)
2. Tank J: “The internal surface of the tank had undergone carburisation . . . The carburisation is very likely a result of the breakdown of the product inside the tank producing a carbon rich environment. The source of the heat could be external or internal.” (Id. at 60.) “It is considered likely that the hole [in the port forward side] was formed prior to ultimate collapse of this tank in this area.” (Id.) The report concludes “the damages to Tank J would appear to be consequential to the explosion and so this tank can be eliminated from further consideration with regards to causation due to a breach of the tank wall.” (Id. at 72.)
3. Tank K: “The internal surface of the tank had undergone carburisation and the shell plate in general was sensitized. The carburisation is very likely the result of high temperatures and the breakdown of the product inside the tank producing a carbon rich environment. The melt holes were associated with massive carbide formation.” (Id. at 63.) The report concludes “the damages to Tank K would appear to be subsequent, and consequential, to the explosion and so this tank can be eliminated from further consideration with regards to causation due to a breach of the tank wall.” (Id. at 73.)

         Hughes concluded “[a]lthough melting had occurred to Tanks [] J, K, and I, and this had occurred before the final crushed condition as found during discharge, it is not possible to say when this heating occurred. It may well have all occurred after the first explosion but before further crushing occurred.” (Id. at 75.)

         Stolt has moved to preclude Hughes on the basis that his testimony is not probative of the cause of the explosion and therefore irrelevant under Rule 402, and might also be unfairly prejudicial and misleading under Rule 403. (Mem. in Support of Motion to Preclude David Hughes, ECF No. 1018.) Stolt does not challenge Hughes qualifications or the reliability of his methods, only the relevance of his findings.

         Stolt argues that because Hughes's report concludes that the melting damages to tanks occurred after the explosion, it is not probative of the cause of the explosion. This is incorrect. Evidence that eliminates possible causes of the explosion may be probative of and helpful to determining the actual cause. In addition, Stolt does not discuss why Hughes's testimony should be precluded under Rule 403 except to say, without explanation, that it would be misleading. There is no danger of Hughes's testimony about misleading the factfinder here, particularly in the context of a bench trial. Stolt's motion to preclude Hughes's testimony is therefore DENIED.

         4. Brian Ott

         MSC has proposed Brian Ott as its chemical expert. His C.V. is attached to his report at Appendix 4. (Ott Rpt., ECF No. 1036-4). Ott holds a masters in chemical engineering from Michigan Technological University (2008) and a doctorate in chemical engineering also from Michigan Technological University (2009). (Id. at 284.) He currently works as a “Managing Engineer” at Exponent. According to his Professional Profile, Ott “uses his expertise as a chemical engineer to analyze chemical processes in the petroleum refining and petrochemical industries. He specializes in the investigation and prevention of process failures involving equipment, operations, and control systems. . . . He performs hazard and regulatory compliance analyses with an emphasis on implementing and improving Job Safety Assessments (JSAs) and Standard Operating Procedures (SOPs) [and] has extensive knowledge in standards related to the chemical processing industry including OSHA, API, ASME, NFPA, CFR, and DOT codes and regulations.” (Id.) He previously worked as a “Research Assistant” at Michigan Technological University's Center for Environmentally Benign Functional Material (2003-2009), where he conducted research on “polymerization reactions and polymer/solvent interactions.” (Id. at 284-85.) In 2009 Ott published his Ph.D. dissertation titled, “Phase equilibrium as modeled by the Statistical Associated Fluid Theory (SAFT) Equation of State, ” and published “Towards the development of CO2 separation membranes” in collaboration with another individual in the Journal of Minerals & Materials Characterization and Engineering in 2008. (Id., 285.) Notably, Ott has no special expertise in classifying chemicals under maritime regulations issued by the United Nations such as the International Maritime Dangerous Goods (“IMDG”) Code.

         Ott was retained “to perform an engineering investigation into the manufacture, storage, and transport of DVB 80 shipped on the MSC Flaminia and to determine the potential for DVB 80 to have autopolymerized and created an explosive environment during the time frame of the incident voyage.” (Ott Rpt., ECF No. 1036-1 at 10.) In the Introduction of Ott's report, a discussion of the chemical properties of DVB and the proper chemical inhibition and oxygenation of DVB, is interspersed with Deltech's history with DVB:

Deltech has experienced prior incidents wherein DVB 80 autopolymerized. In an attempt to prevent further self-polymerization incidents, Deltech implemented a process whereby DVB 80 would not be shipped from southern ports (e.g., NOT) during the summer period. However, prior to the incident voyage, Deltech violated their protocol and shipped DVB 80 from southern ports during summer months. After the protocol's April 16 cutoff, shipments of DVB 80 shipped out of NOT (a southern port) and arrived at Deltech's storage facility at ADPO at temperatures above 25[degrees] C.

(Id. at 13.) Ott engages in a similar discussion in his rebuttal report. (See Ott Rebuttal Rpt., ECF No. 1036-5 at 37-38.) While discussing the progression of Deltech shipping standards, Ott incorporates Deltech's past experience with DVB, including a list of previous Deltech DVB incidents. (See Ott Rpt., ECF No. 1036-1 at 27-31.)

         At various points in the report, Ott qualifies his opinions with terms such as “likely, ” “possible, ” and “plausible:”

Since the ISO container is neither stirred nor agitated, any available oxygen in the headspace can only enter the DVB liquid by diffusion and natural convection. Exponent concludes that it is likely the lack of aeration by Deltech and the possible use of inert gas (i.e., nitrogen) to purge piping and storage tanks limited the amount of oxygen available for inhibition in their shipped DVB 80 product in the subject shipment.

(Id. at 14 (emphasis added).) Additionally,

There is no available information regarding the oxygen content of the subject shipment and our analysis above demonstrated that it is plausible that, given Deltech's lack of manufacturing controls, oxygen depleted DVB 80 could have been produced. . . . Although our hold model demonstrates that higher hold temperatures likely occurred in the subject voyage due to the heated DPA, this approach provides a conservative (lower) bound for the DVB temperature. Our analysis demonstrates that, under the assumptions used, the time to runaway is approximately 9 days at 31 [degrees] C. . . . The time to runaway is strongly dependent on the initial temperature . . . The initial oxygen concentration of the DVB 80 is unknown; therefore, the time for a tank to become oxygen depleted is also unknown.

(Id. at 64.) Ott partly relies on contingent likelihood in his proposed event hypothesis:

The DVB 80 in the ISO containers loaded onto the MSC Flaminia was likely above its SADT and, if it was uninhibited, the heat generated from the self-polymerization reaction outpaced the heat loss to the hold of the ship. . . . [I]f the DVB 80 was below the critical oxygen concentration shortly after being loaded on board the MSC Flaminia, it could begin to autopolymerize during the voyage. Even if the DVB contained some oxygen, the heat transfer from the heated bunker fuel and DPA tanks would increase the temperature of the DVB tanks, causing an increase in the oxygen consumption rate, followed by an [sic] self-polymerization reaction.

(Id. at 16.)

         Ott's rebuttal report seeks to rebut opinions offered by other experts on matters ranging from the temperature of DVB to estimates of the inhibition times of DVB 80 and hypothetical sequence of events leading to the explosion, among other things. However, towards the end of his rebuttal report, Ott veers into a discussion of how DVB should have been classified consistent with the recommendation of the UN classification guidelines:

For international transport, Deltech designated DVB 80 as UN0382 Environmentally Hazardous Substance, Liquid, N.O.S. (not otherwise specified). This designation is used for liquid substances and mixtures that are dangerous to the aquatic environment and do not meet the classification criteria for any other class or another substance within Class 9.

(Ott Rebuttal Rpt., ECF No. 1036-5 at 39.) And concludes:

Based on having a heat of polymerization greater than 300 J/g and an SADT equivalent of less than 75 [degrees] C for a 50 kg package, the thermal stability of DVB 80 is consistent with a material that meets the definition of Division 4.1 self-reactive substance. Since Deltech did not measure the oxygen content of their DVB 80, they cannot ensure their product would not behave in a fashion consistent with the labeling of a Class 4.1 self-reacting substance.

(Id. at 45.)

         Stolt has moved to preclude Ott as an expert witness on several bases: (1) Ott lacks the necessary experience, qualification and expertise to offer opinions on the proper classification for DVB, (2) his proposed testimony includes improper factual narrative, and (3) his proposed testimony is ...


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