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EBENHOECH v. KOPPERS INDUSTRIES

December 24, 2002

ALBERT W. EBENHOECH AND GAIL EBENHOECH, H/W, PLAINTIFFS,
V.
KOPPERS INDUSTRIES, INC., ET AL., DEFENDANTS



The opinion of the court was delivered by: Jerome B. Simandle, District Judge.

      OPINION

This Court is presently called upon to decide, among other issues, an issue of first impression, namely whether an action may lie in New Jersey products liability law when a tank car used to transport a hazardous chemical has some of the hazardous chemical on its exterior and causes injury to an employee of the consumer of the chemical. For the reasons that follow, this Court finds that a plaintiff injured by the chemical spill may allege that the tank car, with the spill on its exterior, suffers from a manufacturing defect.

This Court will also decide the issues presented in the following motions: (1) plaintiffs' motion to bar testimony of, or admission into evidence of, various incident reports of plaintiff's employer and testimony or evidence of the amount of plaintiff's lump sum retirement payment, (2) defendant's motion to strike plaintiffs' products liability claim, (3) defendant's motion to dismiss plaintiffs' cause of action and damage claim, (4) defendant's motion to strike plaintiffs' claim of future wage loss and preclude evidence thereof, (5) defendant's motion to admit evidence regarding plaintiff's conduct at trial, (6) defendant's motion to preclude opinions of plaintiffs' expert, and (7) defendant's motion to deem its requests for admissions be admitted. Several aspects of these motions have been resolved.*fn1

The Court thus needs to decide the issues presented in five motions: (1) plaintiffs' motion to bar admission into evidence of Solutia's unusual incident report, (2) defendant's motion to preclude opinions of plaintiffs' expert, (3) defendant's motion to admit evidence regarding plaintiff's conduct at trial, (4) defendant's motion to dismiss plaintiffs' cause of action and damage claim, and (5) defendant's motion to strike plaintiffs' products liability claim.

This Court will first consider the evidentiary motions and will grant plaintiff's motion by finding the unusual incident report is inadmissible, will grant defendant's motion to preclude the strict liability opinion of plaintiff's expert, and will grant defendant's motion to admit conduct evidence subject to restrictions on the use of the evidence. Then the Court will consider the two motions relating to plaintiff's causes of action and will deny the negligence motion and will deny in part the products liability motion, so that the negligence claim and manufacturing defect products liability claim will proceed to trial.

I. BACKGROUND*fn2

On November 2, 1998, plaintiff Albert Ebenhoech, as chief chemical operator at Solutia, Inc., slipped and fell about fifteen feet off the side of a tank car and severely injured his left leg. Plaintiff alleges that defendant Koppers Industries should be liable under a negligence or products liability theory for spilling a hazardous chemical called phthalic anhydride on the rail car and for not cleaning it off prior to shipping the car to Solutia. Phthalic anhydride ("PAA") is a liquid chemical that solidifies in ambient conditions and can cause thermal burns, allergic respiratory reactions, and eye and skin burns. When solidified, PAA appears as a white crystalline substance.

On November 2, 1998, plaintiff was asked to decontaminate a tank car that had arrived at Solutia's facilities about one week prior. The tank car was leased to Solutia by defendant Koppers for use in transporting the PAA. Plaintiff says that when he observed the PAA crystalized on the sides of the rail car when it arrived at Solutia, he was aware that he would need to clean the spill. Plaintiff was assisted in the clean-up operation by another worker, Ed Tokley.

Solutia's PAA cleaning process included two steps. First, a large plastic drum with two holes in the bottom was positioned either on a flat domed platform or directly on top of the rail car to be cleaned. Next, soda ash was mixed with warm water from a hose inside the drum. As the solution mixed, it would flow out of the bottom drum holes and over the PAA on the sides of the rail car and would break up the solidified PAA. The PAA would then fall off the side of the rail car and into a catch pan.

On October 4, 2000, plaintiff filed this action in New Jersey Superior Court, Camden County. On November 16, 2000, defendant removed the case to this Court, citing diversity jurisdiction. On July 6, 2001, defendant filed a motion for summary judgment which was denied by this Court on January 16, 2002. [Docket Items 11-1.] Since then, the parties have filed the seven motions in limine at issue here.

II. DISCUSSION

A. Standard of Review

This Court may hear the present motions in limine because it has the inherent authority to manage cases brought before it.*fn3 Luce v. United States, 469 U.S. 38, 40 n. 2 (1984). An "in limine ruling on evidence issues is a procedure which should, in the trial court's discretion, be used in appropriate cases." In re Japanese Elec. Prods. Antitrust Litig., 723 F.2d 238, 260 (3d Cir. 1983), rev'd on other grounds sub nom., Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574 (1986). One such appropriate case is where the court can shield the jury from unfairly prejudicial or irrelevant evidence. See United States v. Romano, 849 F.2d 812, 815 (3d Cir. 1988). The in limine motion then fosters efficiency for the court and for counsel by preventing needless argument at trial. New Jersey Civil Procedure § 16-2:2 (citing Bradley v. Pittsburgh Bd. of Educ., 913 F.2d 1064, 1069 (3d Cir. 1988)). However, the ruling should not be made prematurely if the context of trial would provide clarity. Japanese Elec., 723 F.2d at 260.

B. Analysis

1. Plaintiff's motion to bar admission of Solutia's "Unusual Incident Report"

In this motion, plaintiffs seek to exclude an unusual incident report created by plaintiff's employer after the accident. Plaintiffs argue that the Solutia report should be excluded because it is not relevant*fn4 since it deals with Solutia's actions and not Koppers, and because it is hearsay.*fn5 (Pls.' Br. at 3-6.) Defendant argues that it is relevant to the issue of fault and that it is admissible under either the records of regularly conducted activity exception, Fed.R.Evid. 803(6), or the statement against interest exception, Fed.R.Evid. 804(b)(3), to the hearsay rule. (Def.'s Br. at 2-8.) This Court finds that the report is relevant, but is inadmissible hearsay.

The report is relevant evidence of the accident's occurrence and cause. It describes the chronology of the incident and determines that its primary cause was the "at-risk behavior of working at an elevated location without fall protection." (Pls.' Br., Ex. C.) The report includes observations that form the basis for the conclusion, such as plaintiff's lack of personal fall protection, Solutia's improper facilities for cleaning PAA, and the soda ash solution's "extremely" slippery nature when use on smooth tank cars. (Id. at 2.) The report also includes information directly relevant to defendant Koppers' liability. On page one of the report, the description of the accident begins with a statement that "Koppers phthalic anhydride car GATX 31772 had been received on 10/23 with spilled/solidified material on top and down the sides of the car." (Id. at 1.) The report is therefore clearly relevant not just to the accident's cause, but also to the issue of when and how the PAA appeared on the exterior of the tank car.

However, while the report is relevant, this Court finds that it is not admissible. Defendant admits that it is hearsay, but argues that the regularly conducted activity exception and the statement against interest exception to the hearsay rule allow the admission of the report. This Court finds that neither exception applies.*fn6

The report does not fit within the exception for reports of regularly conducted activities which allows admission if:

the witness who lays the foundation for the admission of evidence testif[ies]: (1) that the declarant in the records had knowledge to make accurate statements; (2) that the declarant recorded the statements contemporaneously with the actions which were the subject of the reports; (3) that the declarant made the record in the regular course of the business activity; and (4) that such records were regularly kept by the business.

United States v. Furst, 886 F.2d 558, 571 (3d Cir. 1989), cert. denied, 493 U.S. 1062 (1990) (citing Fed.R.Evid. 803(6)).*fn7

Plaintiffs argue that the reports should be excluded because they were not made in the regular course of business. (Pls.' Br. at 4.) In support of their argument, they cite Palmer v. Hoffman, 318 U.S. 109 (1943) in which the Supreme Court upheld the exclusion of an employee's report about an accident. The Court held that:

it is manifest that in this case those reports are not for the systematic conduct of the enterprise as a railroad business. Unlike payrolls, accounts receivable, accounts payable, bills of lading and the like, these reports are calculated for use essentially in the court, not in the business. Their primary utility is in litigating, not in railroading.

Id. at 114. The business records exception was not intended to "make admissible all evidence, no matter how incompetent or irrelevant, merely by virtue of the fact that it appeared in a business record." Gordon v. Robinson, 210 F.2d 192, 196 (3d Cir. 1954). Instead, it was meant to "admit into evidence entries of a purely clerical or routine nature not dependent upon speculation, conjecture or opinion." Id. Courts have therefore found that the exception applies to business records which are reliable and trustworthy because the employee was motivated to be accurate because the business depends on accuracy of the record to conduct its affairs, and created the record in a habitual manner. Certain Underwriters at Lloyd's London v. Sinkovich, 232 F.3d 200, 205 (4th Cir. 2000).

In Palmer, the Supreme Court found that the incident report was not trustworthy and was not admissible because (1) the business had motivation to skew the record because it was prepared in anticipation of litigation, and (2) the record was not routinely created, but was only created because of an unusual accident. Palmer, 318 U.S. at 111-14. The Third Circuit has cited Palmer for the proposition that the motivation of the report's writer is key to deciding whether the report is admissible under Rule 803(6). Casoni, 950 F.2d at 911, n. 10; see also Sinkovich, 232 F.3d at 205 (excluding report when "primary motive" for its creation was litigation).

Here, the report is not admissible as a record of a regularly conducted business because (1) it was prepared with the knowledge that the event could lead to litigation and (2) it was not routinely created. The report indicates the possibility of litigation by titling the document "recordable injury," by classifying the incident as "OSHA Recordable/Days Away Case," and by investigating the cause of an accident that left an employee with a "seriously" injured left ankle. (Pls.'s Br., Ex. C at 1.) The report also shows that the incident was not common, leading to the conclusion that the report was not routinely created. The report's title alone indicates that the report was made to document an "unusual incident." (Id.) The report also indicates that the chief operator on site stated that "he had performed this cleaning task several times in the past without incident, although this was the first time that the operation required work outside of the platformed dome area." (Id. at 2.) Additionally, the report includes an analysis of the consequences of behavior like plaintiff's and finds that the certain consequences of "working outside of the guarded area on top of a phthalic anhydride rail car without fall protection" are "job completed," "save time," and "meet deadline." (Id. at 4.) The uncertain consequences include "nothing bad happens" and "injury or death." (Id.) This Court finds that a report created after an "unusual incident" that occurred during the "first time that the operation required work outside the platformed dome area" and led to the "uncertain consequence" of "injury" is not a report made in the regular course of business.

The report also does not fit within the hearsay exception for statements against interest, which requires proof (1) that the declarant is unavailable, and (2) that the statement is so far contrary to the declarant's pecuniary, proprietary or penal interest that "a reasonable person in the declarant's position would not have made the statement unless believing it to be true." Fed.R.Evid. 804(b)(3);*fn8 Blackburn v. United Parcel Serv., 179 F.3d 81, 96 (3d Cir. 1999).

This Court finds that the report is not a statement against interest because defendant has not shown either precondition. First, defendant has not shown that the writer of the report is unavailable to testify at trial. While the report itself does not indicate its author, counsel for defendant represented to this Court that it was written by Martin Rose, Solutia's Safety Supervisor. Even so, defendant did not represent that Martin Rose is unavailable as a witness or that his whereabouts are unknown. Instead, the record shows that Mr. Rose was available to complete an affidavit on May 29, 2001, (Pls.' Products Liability Br., Ex. H), and that Mr. Rose will testify for the plaintiff at trial, (Joint Final Pretrial Order at 11).

Second, defendant has not shown that the statement was against Mr. Rose's or Solutia's interest when made. An "essential predicate" for a statement against interest is that it "be objectively contrary to the declarant's interest." United States v. Ashfield, 735 F.2d 101, 110 (3d Cir. 1984). Here, Mr. Rose made the statements during an investigation of the accident and thus, could "have been serving as a conduit for defenses" that could potentially be used by Solutia. See id. (stating that statement made after investigation had begun was likely not against interest, but was strategically made). Also, the report is really against plaintiff's interest, not Mr. Rose's or Solutia's. It states that the cause of the incident was plaintiff's "at-risk behavior of working at an elevated location without fall protection." (Pls.' Br., Ex. C at 2.) It explains that corrective action should be taken to instruct "all employees" to avoid the behavior that plaintiff engaged in. (Id.) It recommends use of a contractor for future cleaning operations "which cannot be performed safely by plant personnel." (Id. at 4.) The focus of the report is on the plaintiff's actions as employee, not on Solutia's. As such, it is not a statement against interest by Solutia and is not admissible under the statement against interest exception to the hearsay rule.

Because the report does not qualify for any exception to the hearsay rule, this Court does not need to consider the hearsay within the report. This Court will grant plaintiffs' motion to bar admission of the Solutia "Unusual Incident" report from defendant's case in chief. Nothing precludes its use as potential impeachment material, or to refresh recollection of the witness, if its author testifies at trial.

Defendant's motion to preclude opinions of plaintiffs' expert.

Defendant seeks to exclude the opinions of plaintiffs' expert, George P. Widas, regarding plaintiff's products liability claim. (Def.'s Br. at 2.) Widas prepared two reports for plaintiffs: (1) a July 15, 2001 report that about Koppers' alleged negligence, and (2) a June 4, 2002 report about the products liability claim. In this motion, defendant only seeks to exclude the second report, arguing that Widas' methodology does not have sufficient reliability under the requirements of Daubert v. Merill Dow Pharmaceuticals, 509 U.S. 579 (1993). (Def.'s Br. at 2.)

Under the Federal Rules of Evidence, a federal judge must serve as a "gatekeeper" to ensure that "any and all expert testimony or evidence is not only relevant, but is also reliable." Kannankeril v. Terminix Int'l, Inc., 128 F.3d 802, 806 (3d Cir. 1997) (citing Daubert, 509 U.S. at 589). Rule 702,*fn9 which governs the admissibility of expert testimony, has a liberal policy of admissibility which requires (1) that the proffered witness be an expert; (2) that the expert testify about matters requiring scientific, technical, or specialized knowledge; and (3) that the expert's testimony assist the trier of fact. Kannankeril, 128 F.3d at 806. Here, defendant has not challenged Mr. Widas' qualifications. However, defendant challenges the reliability of Widas' methodology, arguing that he "has performed no scientific testing or analysis whatsoever nor has he relied upon any publication relating to railroad cars or railroad safety. He has provided no objective anchor for his conclusions." (Def.'s Br. at 14.)

The Supreme Court re-examined the trial judge's "gatekeeping" function under Daubert in Kumho Tire Co. v. Carmichael, 526 U.S. 137 (1999). The Court found that when a party questions the expert's factual basis, data, principles, methods, or their application, Rule 702's "standard of evidentiary reliability" requires that the trial court "determine whether the testimony has `a reliable basis in the knowledge and experience of [the relevant] discipline.'" Id. at 149 (quoting Daubert, 509 U.S. at 592). The court must "make certain that an expert, whether basing testimony upon professional studies or personal experience, employs in the courtroom the same level of intellectual rigor that characterizes the practice of an expert in the relevant field." Kumho, 526 U.S. at 152. The Third Circuit summarizes the nature of this inquiry as follows:

In interpreting this second requirement, we have concluded that "an expert's testimony is admissible so long as the process or technique the expert used in formulating the opinion is reliable." In order for the expert testimony to be "reliable," we have required that the testimony be based on the "methods and procedures of science," rather than on "subjective belief or unsupported speculation." Moreover, Daubert does not set up a test of which opinion has the best foundation, but rather whether any particular opinion is based on valid reasoning and reliable ...

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