“[w]hen a litigant clearly believes a certain methodology is acceptable as shown by his or her own expert’s reliance on that methodology, it is disingenuous to challenge an opponent’s use of that methodology.”
How later courts described this case
- “[w]hen a litigant clearly believes a certain methodology is acceptable as shown by his or her own expert’s reliance on that methodology, it is disingenuous to challenge an opponent’s use of that methodology.”
Written by the judges who cited it.
The opinion
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF LOUISIANA
MONIQUE ATTUSO, et al., CIVIL ACTION
Plaintiff
VERSUS 18-157-SDD-RLB
OMEGAFLEX, INC.,
& AUDUBON PLUMBING, INC.
Defendants
RULING
Before the Court is the Defendant, Omega Flex, Inc.’s (“Omega Flex”) Motion to
Exclude Certain Opinions and Testimony of Plaintiff’s Experts,1 Derek Geer (“Mr. Geer”),
John Spruiell (“Mr. Spruiell”), and Kelly Colwell (“Colwell”) (collectively “Integrity experts”).
Plaintiff, Republic Fire and Casualty Insurance Co. (“Republic”), opposes the Motion2.
I. FACTUAL BACKGROUND
This case presents a subrogation claim by Republic resulting from Republic’s
payment of a property loss claim that arose as the result of a house fire that consumed
the residence of Republic’s insured, Monique Attuso (“Attuso”).3 Plaintiff alleges that a
fire broke out at the Attuso residence on January 21, 2017 which destroyed the residence
and its contents.4 Ultimately Republic adjusted the Attuso claim as a total loss.
1 Rec. Doc. 58.
2 Rec. Doc. 71.
3 Rec. Doc. 1-1 ¶3.
4 Id.
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According to the record, Attuso and her husband Ricky Rodriguez reported that
lightning struck the Attuso residence at approximately 3:30am on January 21st, 2017:
[The homeowner’s family] heard a "huge" lightning strike. They lost
power, saw sparks from the living room television, and saw sparks
appear to fall from the roof as they looked through the kitchen
window. They found a small fire underneath the kitchen sink that was
easily extinguished with water. Mr. Rodriguez searched the rest of
the house, including closets and attic areas and found no other
evidence of fire. He described waiting 30-45 minutes longer and
inspecting the house again. With the electricity off and no other
evidence of fire in inspected areas, they decided to go to bed. Around
7am kids went upstairs to notice smoke coming from the 2nd floor.
Mr. Rodriguez said that the wall to the right of the stairway landing
was also ‘hot’ to the touch with smoke visible. They called the fire
department and grabbed some personal belongings before exiting
the house The [homeowners] stated that electricity was off at their
house and detached shop the entire time after the lightning strike
until the following day when Entergy, the electric utility provider,
came out to re-energize.5
The only remaining claim in this litigation is the subrogation claim by Republic
against Omega Flex. The individual plaintiff’s claims (Republic’s insureds) have been
settled and dismissed from this suit.6
Republic contends that “the fire originated in the interstitial space between the first
and second floors of the Attuso residence and was caused by defects associated with the
gas piping which was designed, manufactured and sold by Defendant. Plaintiff alleges
that Omega Flex’s product, corrugated stainless steel tubing (CSST), was defective under
the terms and provisions of the Louisiana Product Liability Act (LSA-RS 9:2800.51, et
seq.) in that it was unreasonably dangerous in design, manufacture, and warranty and for
5 Rec. Doc. 58-2 p. 2.
6 See Rec. Doc. 92.
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failure to provide an adequate warning. Specifically, Plaintiff alleges that the CSST lacks
adequate protection from lightning strikes, direct or indirect, that can and do compromise
the integrity of the CSST causing gas leaks and resulting fires.”7
Republic maintains that “Omega Flex has had actual knowledge since the year
2000 that its yellow jacketed TracPipe® brand CSST was susceptible to lightning induced
failure. Specifically, the stainless-steel tubing is simply too thin walled to withstand the
electrical current from a direct or indirect lightning strike, and the electrical current will find
alternative paths to ground which results in an arcing event between the CSST and
nearby metallic objects. The arcing event results in a hole or perforation in the thin-walled
CSST which allows gas to escape. The fugitive gas is then ignited by the arcing event
resulting in a fire. There are safer alternative designs, such as Flash Shield, a competitor’s
CSST that incorporates a shunt via an aluminum mesh that runs the length of the CSST.
Furthermore, black iron pipe is also a safer alternative design because testing has
demonstrated that black iron pipe is capable of withstanding significant more current (over
250 coulombs) than TracPipe® brand CSST without the creation of holes or perforations.
Moreover, in 2006, Omega Flex placed on the open market an alternative product,
CounterStrike, which was designed in an attempt to withstand the effects lightening [sic]
was having on the yellow jacketed TracPipe® CSST product.”8
Defendant Omega Flex denies that its product caused the subject fire and resulting
damages. Omega Flex “contends that bonding and grounding of its’ TracPipe® yellow
jacketed CSST renders it a safe product.”9 Defendant maintains that “there were multiple
7 Rec. Doc. 92 p. 4.
8 Rec. Doc. 92 p. 4-5.
9 Id. at p. 5.
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fires at the Attuso home which spread and eventually ignited gas at Omega Flex’s
CSST.”10 Omega Flex submits that the installer, Audubon Plumbing, “improperly
install[ed] the subject CSST by failing to directly bond the CSST to the home’s grounding
electrode” and that had “the CSST been properly installed (i.e. bonded) an arcing event
would not have occurred at the CSST and the fire could not have occurred”.11
II. THE SUBJECT MOTION IN LIMINE12
Defendant Omega Flex moves the Court to exclude the following specific opinions
of the Integrity experts:13
1. The fire at issue would still have occurred if the CSST was bonded; and
2. The applicable Omega Flex Design Guide and Installation Instruction (“D&I
Guide”) is ambiguous or confusing.
Defendant contends that the Integrity experts should be prohibited from rendering the
challenged opinions because they are unsupported by reliable methodology, and
Defendant argues that Colwell is not qualified to render an opinion on applicable
standards regarding bonding and the confusion created by the Omega Flex instructions.
A. Bonding Opinion Testimony
Defendant explains that the “risk of CSST is that it is allegedly more susceptible to
perforation from an electrical arcing event than black iron pipe resulting from a lightning
strike/event.”14 Defendant further explains that “to combat the purported risk due to
lightning, CSST manufacturers, including Omega Flex, require that its product be bonded
10 Rec. Doc. 92 p. 5.
11 Id. at p. 5.
12 Rec. Doc. 58.
13 See Rec. Doc. 58-2 (Integrity Experts Report).
14 Rec. Doc. 58 p. 11.
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to the building’s grounding electrode.”15 According to Defendant’s expert, the CSST in the
Attuso home was not bonded to the home’s grounding electrode.16 Omega Flex’s defense
to liability is that the CSST “installation was not performed in accordance with the
applicable codes at the time and . . . there was no electrical bond” which according to
Omega Flex was the specific safety measure which would have protected against the
harm encountered by the Attusos.17
In response to this defense, Plaintiff’s Integrity expert opines that the risk
encountered in this case, namely fire due to failure of the CSST from arcing due to lighting
strike, would have occurred notwithstanding bonding of the CSST.18 The Integrity experts
performed lab testing to demonstrate the likelihood of failure even when the CSST is
bonded.
Defendant argues that the experiment that Integrity did to test the susceptibility of
bonded CSST to lightning strikes was “entirely irrelevant given Integrity’s failure to apply
their tests to the facts involved in this action.”19 Defendant challenges the reliability of the
testing methodology used by the Integrity experts arguing that their lab experiments “in
absolutely no way resemble the configuration of the Attuso home.”20 Defendant argues
that the experiment conditions did not represent the actual conditions at the Attuso home
and are therefore unreliable.
For example, Defendant points out that:
15 Rec. Doc. 58 p. 11.
16 Rec. Doc. 57-4, Exhibits D & E. (The “goal of direct bonding of CSST is to prevent an electrical arcing
event from melting a hole in the CSST.”) Rec. Doc. 57-4 p. 281 ¶7 (Kytomaa Affidavit, para. 7).
17 Rec. Doc. 58 p. 12.
18 See Rec. Doc. 63-13.
19 Rec. Doc. 58 p. 19.
20 Id. at p. 30.
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Integrity pin-pricked the outer sheathing of the CSST as part of its
experiment, Defendant argues that there is “no information that the CSST
at the Attuso home was pinpricked”.21
“the capacitor array used in the testing was only capable of discharging 17
kv, which is much lower than voltages generated by lightning, and required
pinpricking of the CSST”22
“Integrity utilized a short branch circuit wire which in no way relates to the
lengthy exhaust duct at the Attuso home”.23
“By pinpricking the CSST and the opposing cable, the Integrity witnesses
created a pathway that encouraged an arcing event when such a condition
did not exist at the Attuso home.”24 “By creating a more preferential pathway
to ground, Integrity created a situation where an arcing event was likely to
occur.”25
Plaintiff responds that “testing conducted by Integrity has concluded that bonding
and grounding is not an effective means of protecting TracPipe CSST from lightning
induced damage.”26 Responding to the Defendants relevance objection, Plaintiff argues
that “[i]t is clearly a question of fact whether bonding and grounding is an effective means
of protecting CSST from damage due to lightning, and whether bonding would have made
a difference in this case.”27 The Court finds that the proposed opinion testimony by the
21 Rec. Doc. 58 p. 19.
22 Id.
23 Id. at p. 32.
24 Id. at p. 19.
25 Id. at p. 20.
26 Rec. Doc. 71 p. 21.
27 Id. at p. 22.
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Integrity experts as to the effectiveness of bonding and grounding in preventing the type
of loss presented in this case is relevant.28 It addresses a material fact at issue and will
assist the tries of fact to understand an issue that is not within the average lay persons
common knowledge or understanding.29
On the reliability challenge, Plaintiff responds that “this contention is without merit.
During their investigation of the fire, the Integrity Experts followed the reliable and widely
accepted principles and methods described in NFPA 921”.30 Plaintiff contends that
“Integrity bonded/grounded CSST gas piping in the manner depicted and described in
Section 4.10 of the Omega Flex (DEI Guide). They subjected this CSST to electrical
impulse currents at voltages well below that of a typical lightning strike.”31 In fact, in
unrelated prior lab testing, Omega Flex utilized the pin prick method to breach the CSST
jacket in a “simulated lightning test.”32
The Court is persuaded by the Plaintiff’s argument that the “Defendant’s expert,
Kytomaa, testified in another case to having pinpricked the jacket on CSST that was the
subject of his testing. As Dr. Kytomaa explained, the jacket on the CSST is pinpricked to
provide a localized decrease in the dielectric strength of the jacket so that testing on CSST
can be conducted at lower voltages than would be generated by a lightning strike.”33 The
28 FED. R. EVID. 702; Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993).
29 “There is no more certain test for determining when experts may be used than the common sense inquiry
whether the untrained layman would be qualified to determine intelligently and to the best possible degree
the particular issue without enlightenment from those having a specialized understanding of the subject
involved in the dispute.” Ladd, Expert Testimony, 5 VAND.L.REV. 414, 418 (1952); FED. R. EVID. 702.
30 Rec. Doc. 71 p. 13. Plaintiff also directs the Court to State Farm Fire and Casualty v. Omega Flex, Civil
Action 4:16-cv-00387-JLH, on the docket of United States District Court Eastern District of Arkansas,
wherein a similar Motion in Limine which challenged the reliability of the Integrity experts’ methodology was
denied.
31 Id. at p. 15.
32 Id.; Rec. Doc. 71-4
33 Rec. Doc. 71 p. 16 (internal citations to the Kytomaa deposition omitted).
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record demonstrates that Omega Flex has utilized the pin prick methodology in its own
testing. The Court rejects the argument that the methodology used is inherently unreliable
or flawed.34 Discrepancies or variations between the lab simulations and the actual field
conditions can be pointed out on cross-examination and by counter-posing expert
testimony. The Court denies Omega Flex’s Motion to exclude opinion testimony regarding
whether the fire at issue would still have occurred if the CSST was bonded.
B. Opinion Testimony regarding the D&I Guide
Defendant, Omega Flex, moves to exclude testimony that the Omega Flex Design
Guide and Installation Instruction (“D&I Guide”) is ambiguous or confusing, on the
grounds that Integrity expert Colwell35 is not qualified to render such an opinion.
Defendant argues that Colwell’s opinion that installation instructions relating to bonding
of the CSST in the D&I are confusing or unclear is based on Colwell’s “assumptions
and/or personal beliefs [] rather than any scientific or recognized methodology.”36
Colwell opines that:
[t]he grounding/bonding of the gas system in the Attuso residence,
per the NFPA 70: National Electrical Code (NEC), was properly
accomplished by attachment of equipment grounding conductors at
the two tankless water heaters. The instructions provided in Omega
Flex's December 2005 Design and Installation Guide (D&I Guide) -
Section 4.10 depicting the use of a bonding clamp to establish, what
the manufacturer has termed as "direct bonding." This term is non-
standard, undefined, and confusing. An electrical bond connection is
intentional and "directly" made when gas appliances are physically
connected to the grounding electrode system. The instructions as
34 Shuck v. CNH Am., LLC, 498 F.3d 868, 874 (8th Cir. 2007) (“[w]hen a litigant clearly believes a certain
methodology is acceptable as shown by his or her own expert’s reliance on that methodology, it is
disingenuous to challenge an opponent’s use of that methodology.”).
35 Mr. Colwell is being offered by Plaintiff to offer testimony and/or opinions relating to the D&I Guide, and
the sufficiency of the instructions, particularly relating installation of the CSST, within the D&I Guide.
36 Id. p. 21.
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written could be interpreted in at least two ways. First, the "direct
bonding" scheme must be followed; second, the requirements of the
NEC must be met, and that the "direct bond" is just one way of
achieving bonding, and if this method is chosen the clamp should not
be attached to the corrugated portion of the tubing. As a licensed
electrician with 20-plus years of experience in construction and
interpreting the National Electrical Code, I interpret the latter, and
that simply complying with the National Electrical Code was what
was required for bonding of the gas piping system. While the National
Electrical Code allows the bonding as described in the D&I Guide, it
clearly does not require a "heavy gauge bond wire" as stated in the
D&I Guide. The D&I Guide seems to defer to the National Electrical
Code when stating "The bonding is a requirement of the National
Electrical Code," but in fact, it was not.37
In other words, according to Colwell, the Omega Flex D&I instructions regarding bonding
can be read to require NEC standard grounding installation or something more.
By the plain language of FRE 702 an expert may be qualified by “scientific,
technical, or other specialized knowledge”.38 Colwell is a licensed master electrician and
electrical contractor. He has worked as an expert in the electrical industry as defined in
Section 15.5 of NFPA 921, Guide for Fire and Explosion Investigations (2017), and
provided technical assistance to fire investigators. He is a qualified installer of a different
brand of CSST and has investigated over 200 fires involving CSST since 2005. Colwell
has presented at fire investigation seminars and conferences in Louisiana, Arkansas,
Oklahoma, and Texas. He has presented on the topic of CSST at the National Association
of State Fire Marshals conference and the Texas Professional Real Estate Inspectors
37 Rec. Doc. 71-4, ¶25.
38 FED. R. EVID. 702.
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Association. He contributed to two published papers on the topic of CSST failures from
lightning and roofing fasteners.39
The Court finds that by virtue of his training and experience, Colwell is qualified to
provide opinion testimony on how a CSST installer might interpret the bonding installation
instructions in the Omega Flex D&I Guide. The Defendant’s Motion in Limine on this point
is DENIED.
III. CONCLUSION
For the above reasons, Omega Flex’s Motion in Limine40 is hereby DENIED.
IT IS SO ORDERED.
Signed in Baton Rouge, Louisiana on April 6, 2020.
S
CHIEF JUDGE SHELLY D. DICK
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF LOUISIANA
39 See Rec. Doc. 71-4.
40 Rec. Doc. 58.
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