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Water Pollution Control Authority of the City of Norwalk v. Flowserve U.S. Inc.

United States District Court, D. Connecticut

March 28, 2018

WATER POLLUTION CONTROL AUTHORITY OF THE CITY OF NORWALK, Plaintiff,
v.
FLOWSERVE U.S. INC. Defendant,
v.
GILBANE BUILDING CO. Third-Party Defendant

          MEMORANDUM OF DECISION ON MOTIONS FOR SUMMARY JUDGMENT AND TO EXCLUDE EXPERTS

          Hon. Vanessa L. Bryant, United States District Judge.

         I. Introduction

         Plaintiff Water Pollution Control Authority of the City of Norwalk (“WPCA”) brings claims of products liability, breach of contract, and violation of the Connecticut Unfair Trade Practice Act action against Defendant Flowserve U.S. Inc. (“Flowserve”), and also asserts breach of contract against Third-Party Defendant Gilbane Building Co. (“Gilbane”). Flowserve and Gilbane have both moved for summary judgment against WPCA. [Dkts. 119 (Gilbane MSJ against WPCA); 128 (Flowserve MSJ against WPCA).] In addition, Flowserve brought claims against third-party defendant Gilbane asserting breach of contract and seeking indemnification. [Dkt. 30 (Third-Party Complaint).] Flowserve seeks summary judgment in its favor as to its breach of contract claim, and Gilbane seeks summary judgment as to Flowserve's indemnification claim. [Dkt. 123 (Flowserve MSJ against Gilbane).] Gilbane also asserted counterclaims against Flowserve seeking contribution and negligence, and Flowserve seeks summary judgment as to both. [Dkt. 123 (Flowserve MSJ against Gilbane)]. Finally, Flowserve has moved to exclude two of WPCA's experts. [Dkts. 121 (Motion to Exclude Hodgson); 126 (Motion to Exclude Dickson).] All motions are opposed. For the reasons set forth herein, Flowserve's motions to exclude experts Hodgson and Dickson are GRANTED, Flowserve and Gilbane's motions for summary judgment against WPCA are GRANTED, and Flowserve and Gilbane's motions for summary judgment against each other are found as moot.

         II. Factual Background

         In 2008, Camp Dresser McKee, Inc. (“CDMS”) designed the headworks portion of a wastewater treatment plant upgrade (the “Project”) for WPCA. [Dkt. 130-4 at 14, 251.] The headworks included machinery to conduct the first stage of wastewater treatment, including “the preliminary treatment, the screening, the pumping, and grit removal.” Id. at 13. When designing the headworks, CDMS began by identifying a pump design which would meet WPCA's operational needs, and then designed the rest of the headworks system upgrade. Id. The pump design CDMS chose was based on the Flowserve MSX series 3 pumps. Id. at 21.

         On June 25, 2009, WPCA engaged Gilbane, a construction management company, to serve as Construction Manager for the Project. [Dkt. 120-4 (Agreement) at 2.] Gilbane's contract with WPCA required it to act as WPCA's fiduciary in soliciting bids for subcontractors for the Project. [Dkt. 146-2 at 2.] Among other subcontracts, Gilbane solicited bids for vertical non-clog dry pit submersible pumps. [Dkt. 120-6 (Deposition of Patrick Delany) at 36.]

         The pumps were required to meet certain specifications set forth by CDMS. [Dkt. 130-4 at 21.] The design specifications were based on the Flowserve MSX series 3 pumps. Id. Among other specifications, the design specifications required that each pump operate at a capacity of 19 million gallons per day and have motors with a maximum 215 horsepower rating. [Dkt. 130-11.] The specifications did not call for venting. Id.

         Flowserve, a pump designer, manufacturer, and supplier, submitted the lowest bid. Id. The bid required Flowserve to manufacture the Pumps, but excluded offloading, storage, handling, installation, temporary dunnage, field piping, field wiring, and interfacing with the control system. [Dkt. 130-15 at 8-9.] Flowserve's bid expressly warranted that the Pumps would comply with CDMS's pump specifications, based on the Flowserve MSX series 3 pump, and would be free from defects in workmanship and material. [Dkt. 130-15 at 16.]

         Flowserve also provided a six-year, limited, pro-rated warranty covering a pro-rated portion of any repair or replacement covered by the warranty over six years. Id. The warranty excluded coverage if the Pumps were exposed to:

(1) maintenance, repair, installation, handling, packaging, transportation, storage, operation or use which is improper or otherwise not in compliance with Vendor's instructions; (2) alteration, modification or repair by anyone other than Vendor or those specifically authorized by Vendor, (3) accident, contamination, foreign object damage, abuse, neglect or negligence after shipment to Gilbane Building Company; (4) damage caused by failure of a Vendor supplied Product not under warranty or by any hardware or software not supplied by Vendor; (5) use of counterfeit or replacement parts that are neither manufactured nor approved by Vendor for use in the Equipment; or (6) Equipment which is normally consumed in operation or which have normal life inherently shorter than the warranty period including, but not limited to, consumables (e.g. gaskets, o -rings, etc.).

Id. Flowserve also provided, in all capital letters, “THESE WARRANTIES ARE EXCLUSIVE AND IN LIEU OF ALL OTHER WARRANTIES, WHETHER WRITTEN, EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY, AND FITNESS FOR A PARTICULAR PURPOSE.” Id. Flowserve also limited its liability, stating:

Limitation of Liability: The remedies set forth herein are exclusive, and the total liability of the Vendor with respect to this Contract, or any breach thereof, whether based on contract, warranty, tort (including negligence), indemnity, strict liability or otherwise, shall not exceed the Contract Price of the specific equipment or service which gives rise to the claim. IN NO EVENT, WHETHER ARISING BEFORE OR AFTER COMPLETION OF ITS OBLIGATIONS UNDER THE CONTRACT, SHALL VENDOR BE LIABLE FOR SPECIAL, CONSEQUENTIAL, INCIDENTAL OR PENAL DAMAGES OF ANY KIND (INCLUDING BUT NOT LIMITED TO LOSS OF USE, REVENUE OR PROFITS, INVENTORY OR USE CHARGES, COST OF CAPITAL, OR CLAIMS OF CUSTOMERS) INCURRED BY GILBANE BUILDING COMPANY OR ANY THIRD PARTY.

Id.

         Flowserve's bid and proposed warranties were discussed at a June 23, 2009 scope review meeting, in which WPCA declined to participate. [Dkt. 130-16 (Scope Review Meeting Minutes).]

         WPCA submitted the combined package of all winning bids for Project subcontracts to the Clean Water Fund for approval. [Dkt. 120-38.] In that submittal, Harold Alvord, WPCA's representative, certified that “the information contained above and in any attached statements and materials in support thereof is true and correct to his/her knowledge.” Id. Flowserve's limitation of liability and warranty language was in the Clean Water Fund application. [Dkt. 150 at 6-7.]

         The Connecticut Department of Environmental Protection (“DEP”) authorized Gilbane to award the subcontract for six vertical dry pit pumps (the “Pumps”) to Flowserve on October 9, 2009. [Dkt. 120-3 at 4.] The final purchase order, which was executed on December 2, 2010, included the same warranty and limited liability language which was included in its bid and discussed at the scope review meeting. [Dkt. 120-19 at 1-3; Dkt. 125-10 at 1.]

         Flowserve shipped the Pumps to the WPCA plant in August 2011. [Dkt. 130-22 at 190.] Multiple contractors were involved in installing the Pumps, including Electrical Energy Systems (which installed power and control wiring), Ferguson Mechanical (which conducted the pipe to Pump fitting), NIC Systems (which installed supervisory control and data acquisition systems), and Aqua Solutions (which certified that the Pumps were satisfactorily installed and tested). [Dkt. 130-3 at 144-46.] Final start-up and testing of all equipment took place on March 12, March 13, and March 15, 2012. [Dkt. 130-3 at 144-145.] By March 22, 2012, installation and testing of the six Pumps was completed. [Dkt. 120-5 at 154-55.] Nothing out of the ordinary was identified, and the Pumps were commissioned after the March 2012 testing. Id. at 155. Another performance test, on April 18, 2012, revealed that Pump 1 was operating at 50% of expected flow. [Dkt. 130-24.] Pump 1 was disassembled, a large wooden block was found and removed, and Pump 1 was returned to full capacity. Id. On April 30, 2012, CDMS and Gilbane accepted the Pumps and purchase order terms. [Dkt. 130-52.]

         On July 15, 2012, the plant experienced a heavy storm and ran all six Pumps simultaneously. [Dkt. 130-9 at 121, 126.] The Project specifications did not state that all six pumps should be able to run at the same time, but rather that the system should be able to handle 95 million gallons of sewage per day, which would require five Pumps to run and allow the sixth to serve as a spare. Id. at 126-27. Nevertheless, for 30 minutes during the storm, the Pumps kept up with the flow. [Dkt. 130-32 at 2.] However, the system “blew wastewater out of the top of the grit tanks which [are] immediately downstream of the Pumps” because the grit tanks, which were not manufactured by Flowserve, “couldn't handle the flow” produced by all six Pumps. [Dkt. 130-9 at 126-27; Dkt. 120-19; Dkt. 130-32.] During this event, the variable frequency drives[1] (“VFD”) for Pumps 2 and 6 overheated and failed. [Dkt. 120-7 at 123.]

         Flow Tech, the subcontractor that supplied the VFDs, investigated the VFD failure. [Dkt. 130-14 at 70.] Flow Tech's investigation revealed that, at WCPA's request, the VFD cooling fans had been modified to operate off of thermostats rather than continuously, and that Pump 6 was set to run at 110%. [Dkt. 130-32.] The VFDs were repaired at no cost to WPCA. [Dkt. 120-7 at 123; Dkt. 120-9 at 123.]

         On August 4, 2013, OMI, Inc. (“OMI”), a third-party contracted by WPCA to operate and maintain the facility, bled air from Pump 5. [Dkt. 120-10 at 6.] On August 6, 2013, OMI reported that Pump 5 had no influent flow, and was running but not pumping.[2] [Dkt. 120-10 at 8.] Shawn Jennings, OMI's maintenance manager, testified that when a pump is pumping but not running, that may indicate that the pump is airbound, and that the air needs to be bled out of the pump. [Dkt. 130-6 (Deposition of Shawn Jennings) at 118.] When a pump becomes airbound, the pump seals are not cooled properly and can fail. [Dkt. 130-3 at 157.]

         On August 12, 2013, an OMI pump operator noted that Pump 1 was, in fact, airbound. Jennings Dep. at 118-19. On August 13, 2013, Pump 1 reached a high temperature and the primary mechanical seal on Pump 1 failed. [Dkt. 120-11 at 1; Dkt. 130-38.] Pump 1 was replaced. [Dkt. 120-12 (invoice for Pump repair).] Associated Electro Mechanics, Inc. (“AEM”), a Flowserve servicer that inspects and maintains Flowserve equipment, repaired Pump 1 and concluded that the Pump 1 failure occurred due to thermal shock caused by running the pump dry. [Dkt. 120-11 (invoice stating “primary seal failed due to overheated [sic] from running pump dry”); Dkt. 130-8 at 7.] Inspection revealed wastewater in the coolant system, indicating that four of the six Pumps had experienced a primary mechanical seal failure. [Dkt. 130-54.]

         AEM also evaluated Pump 5 and concluded that the primary mechanical seal in Pump 5 also failed due to thermal shock from running dry. [Dkt. 120-17 at 1.] Pump 5 was repaired on December 30, 2013 and experienced no subsequent catastrophic failures. [Dkt. 120-18 (invoice for Pump repair); Dkt. 120-8 at 44.]

         On September 6, 2013, Flowserve denied WPCA's warranty claim for coverage for the seal inspections and repairs of Pumps 1 and 5, explaining that “it is apparent” from AEM's inspection that Pump 1 “ran dry for an extended period which caused the primary mechanical seal to catastrophically fail and allowed the coolant system to be contaminated with sewage.” [Dkt. 120-13 (Denial Letter) at 5.] Flowserve further stated that “[b]ased on the information provided on the other pump failures, it is highly likely that the cause is the same for all of the failed units.” Id. Flowserve found WPCA's claim not warrantable and declined to cover the charges for the inspection and repair of the Pumps. Id.

         Ms. Burns, a Principal Engineer for the City of Norwalk Engineering Division, submitted a sworn affidavit stating she attempted multiple times to contact Flowserve after the denial of the warranty claim, and that Flowserve would not return her calls. [Dkt. 146-2 at 4-5 (stating Ms. Burns sent letters to Flowserve on October 8, 2013 and October 30, 2013).] William Wantz, a Flowserve customer service employee, testified at his deposition that he did not respond Ms. Burns' attempts to contact Flowserve because his manager, Sam Moore, told him to let Flowserve management “handle it.” [Dkt. 146-36 at 63.]

         On October 31, 2013, Flowserve manager Nicholas Kipe sent a letter to Ms. Burns stating that Flowserve was “working to identify the root cause” of the problems the pumps had experienced in August. [Dkt. 146-2 at 5; Dkt. 146-21.] Mr. Kipe explained that, based on inspection of Pump 1, “the reason for failure is a catastrophic failure of the lower (primary) mechanical seal, ” caused by “dramatic temperature swings that typically can only occur when the pump is running dry for a period of time.” [Dkt. 146-21.] Mr. Kipe stated if evidence arose during inspection that the failures were due to defects in materials or workmanship, “then Flowserve will of course honor its warranty.” Id. Ms. Burns never heard back from Flowserve about its identification of the root cause of the problem. [Dkt. 146-2 at 5.]

         In November 2013, Flowserve Senior Electrical Engineer Mohamed Ngayenga conducted a simulation of the Pumps and confirmed that they reacted appropriately when there was low pressure discharge. [Dkt. 146-26 at 103.]

         After a February 2014 inspection, Flowserve employee Ryan Malooly stated “the thought was that the seals ran dry to produce this type of failure, but upon examination of the pump station this seems highly unlikely. What else could cause the seals to fail this catastrophically?” [Dkt. 146-23 at 3.] Fellow Flowserve employee Mark Brewster responded that he was “very adamant” that the seals were run dry. Id. at 2. Ms. Burns received a letter from Samuel Moore dated February 14, 2014, which stated that Flowserve believed the pumps had “run dry.” [Dkt. 146-2.]

         On May 10, 2014, WPCA reported that Pump 1 experienced a “catastrophic failure.” [Dkt. 120-14.] However, AEM inspected Pump 1 on May 30, 2014, found no problems, and affirmed that the Pumps' mechanical seals were in good condition. [Dkt. 130-6 at 133.]

         On December 1, 2014, WPCA reported that Pump 1 had another failure. [Dkt. 130-6 at 135.] AEM inspected Pump 1, found that the stator was grounded, and replaced it. [Dkt. 130-48.] This repair was covered under Flowserve's prorated warranty. [Dkt. 120-15; Dkt. 120-20 at 120.]

         At some point in December 2014, Flowserve and AEM inspected the Pumps and discovered that five low discharge sensors, [3] which were set to stop the Pumps after a certain period of low discharge pressure, had been reset. [Dkt. 130-51 at 2; Dkt. 146-3 at 4; Dkt. 146-23 at 3.] The sensors were intended to stop the Pumps after 45 seconds of low discharge pressure, but five of the sensors were not set to stop the Pumps until two minutes of low discharge pressure, and the sensor on Pump 1 was not set to stop that Pump until four minutes of low discharge pressure. Id. at 3. Those settings were high enough that they could have caused catastrophic events such as the prior overheating of Pump 1. Id.

         In April 2015, Flowserve Senior Electrical Engineer Mohamed Ngayenga returned to the WPCA facility with AEM employee William Andrejczyk to “set up 6 low discharge pressure switches, verify and validate the proper operation of each pump.” [Dkt. 146-27 at 1.] After they completed their work, they reported that they reset the sensors to shut down the Pumps after 45 seconds of low pressure. Id.

         There have been no documented catastrophic failures of Pumps 2, 3, 4, or 6. [Dkt. 120-2 at 115-119, 127.]

         WCPA contracted with Arcadis U.S., Inc. to replace the Pumps on January 8, 2015. [Dkt. 120-34.] CDMS, the Project designer, conducted a technical evaluation for WCPA and determined it was not necessary to replace the Flowserve Pumps. [Dkt. 120-2 at 289.] OMI likewise did not recommend that the Pumps be replaced. [Dkt. 120-26 at 213.]

         III. Motions to Exclude Experts

         WPCA has disclosed two experts for trial: Judith Hodgson, a licensed professional engineer who opines as to whether the Pumps were defectively designed, and Bonneau Dickson, a professional consulting sanitary engineer who opines as to WPCA's damages. Flowserve has moved to exclude both experts. The Court describes each expert's reports and the motions to exclude them below.

         A. Standard of Review

         In order to prevail on a motion for summary judgment, the moving party must present admissible evidence tending there is no genuine issue as to material fact and that it instilled to judgment as a matter of law. ." Fed. . Civ. P. 56(c)("A party may object that the material cited to support or dispute a fact cannot be presented in a form that would be admissible in evidence." Fed. . Civ. P. 56(c)(4). “Because the purpose of summary judgment is to weed out cases in which ‘there is no genuine issue as to any material fact and . . . the moving party is entitled to a judgment as a matter of law, ' it is appropriate for district courts to decide questions regarding the admissibility of evidence on summary judgment.” Raskin v. Wyatt Co., 125 F.3d 55, 66 (2d Cir. 1997) (quoting Fed.R.Civ.P. 56(c)). An expert report is not a “talisman against summary judgment.” Id. If the expert testimony is excluded as inadmissible, the court must make the summary judgment determination without that evidence. Id. at 66-67. Accordingly, the Court must examine the admissibility of WPCA's experts' testimony before ruling on the motions for summary judgment. See, e.g., Rexall Sundown, Inc. v. Perrigo Co., 651 F.Supp.2d 9, 25 (E.D.N.Y. 2009) (discussing the summary judgment standard and noting that the court must examine the admissibility of plaintiff's expert testimony in ruling on defendant's motion for summary judgment).

         A motion to exclude evidence “calls on the Court to make a preliminary determination on the admissibility of the evidence under Rule 104 of the Federal Rules of Evidence.” Highland Cap. Mgmt., L.P. v. Schneider, 379 F.Supp.2d 461, 470 (S.D.N.Y. 2005). Evidence should be excluded if it is inadmissible. Id. “Under Rules 701 and 702, opinions must be helpful to the trier of fact, ” in order to be admissible. Hygh v. Jacobs, 961 F.2d 359, 363-64 (2d Cir. 1992). In addition, “Rule 403 provides for exclusion of evidence which wastes time.” Id. “These provisions afford ample assurances against the admission of opinions which would merely tell the jury what results to reach.” Id.

         Rule 702 requires a valid scientific connection to the inquiry as a prerequisite to admission. Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 591 (1993). Expert witness testimony is admissible only if: (1) “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;” (2) “the testimony is based upon sufficient facts or data;” (3) “the testimony is the product of reliable principles and methods;” and (4) “the expert has reliably applied the principles and methods to the facts of the case.” Fed.R.Evid. 702; Amorgianos v. Nat'l R. R. Passenger Corp., 303 F.3d 256, 265 (2d Cir. 2002). Although Rule 702 embodies a “liberal standard of admissibility for expert opinions, ” Nimely v. City of N.Y., 414 F.3d 381, 395 (2d Cir. 2005), it also “establishes a standard of evidentiary reliability” for “all scientific, technical, or other specialized matters within its scope.” Kumho Tire Co., Ltd. v. Carmichael, 526 U.S. 137, 148 (1999). What constitutes a “reasonable measure[] of reliability in a particular case is a matter that the law grants the trial judge broad latitude to determine.” Id. at 153.

         “Although Rule 702 sets forth specific criteria for the district court's consideration, the Daubert inquiry is fluid and will necessarily vary from case to case.” Amorgianos, 303 F.3d at 266. District courts may consider a number of factors when assessing an expert's reliability, such as (1) whether a theory or technique “can be (and has been) tested, ” (2) “whether the theory or technique has been subjected to peer review and publication, ” (3) a technique's “known or potential rate of error, ” and “the existence and maintenance of standards controlling the technique's operation, ” and (4) whether a particular technique or theory has gained “general acceptance” in the relevant scientific community. Daubert, 509 U.S. at 593-94; see also Amorgianos, 303 F.3d at 266; Fed. Deposit Ins. Corp. v. Suna Assocs., Inc., 80 F.3d 681, 687 (2d Cir.1996).

         The Daubert analysis is flexible and dependent on the facts of the particular case; the above factors “do not constitute a definitive checklist or test.” Daubert, 509 U.S. at 593; Kumho Tire, 526 U.S. at 150 (“the gatekeeping inquiry must be tied to the facts of a particular case”); Amorgianos, 303 F.3d at 266. “In undertaking this flexible inquiry, the district court must focus on the principles and methodology employed by the expert, without regard to the conclusions the expert has reached or the district court's belief as to the correctness of those conclusions.” Amorgianos, 303 F.3d at 266 (citing Daubert, 509 U.S. at 595). An expert's opinion is not admissible unless a “rigorous examination of the facts on which the expert relies, the method by which the expert draws an opinion from those facts, and how the expert applies the facts and methods to the case at hand” reveals that the opinion is “reliable at every step.” Amorgianos, 303 F.3d at 266.

         An expert's opinion is not reliable if it “simply rehash[es] otherwise admissible evidence about which he has no personal knowledge.” Schneider, 379 F.Supp.2d at 468-69 (citing Fed.R.Evid. 703). “While an expert must of course rely on facts or data in formulating an expert opinion, an expert cannot be presented to the jury solely for the purpose of constructing a factual narrative based upon record evidence.” Id. Such an opinion would lack the “level of intellectual rigor [which] would be expected in the scientific community, ” and which is required in the courtroom. Amorgianos, 303 F.3d at 296.

         In addition to the standard for admission of expert testimony set forth in Rules 702 and 703, the court may also “exclude relevant evidence if its probative value is substantially outweighed by a danger of one or more of the following: unfair prejudice, confusing the issues, misleading the jury, undue delay, wasting time, or needlessly presenting cumulative evidence.” Fed.R.Evid. 403. “These circumstances entail risks which range all the way from inducing decision on a purely emotional basis, at one extreme, to nothing more harmful than merely wasting time, at the other extreme. Situations in this area call for balancing the probative value of and need for the evidence against the harm likely to result from its admission." Notes of Advisory Committee on Proposed Rules. Accordingly, under Rule 403, an expert's opinion may be excluded if it risks “an undue tendency to suggest decision on an improper basis, ” in addition to the bases for exclusion under Rules 702 and 703. Id.

         B. Summary of Judith Hodgson's Report

         Ms. Hodgson, a licensed professional engineer, has a bachelor's degree in mechanical engineering from Penn State. [Dkt. 122-2 at 7.] She served as an engineer at DuPont for ten years; while there she served as a maintenance and reliability engineer, as well as a project engineer specifying and sizing equipment for a $90 million chemical plant. Id. She also spent ten years as a corporate pump consultant, trouble-shooting pumps and seals within DuPont, including at several wastewater facilities. Id. She also worked in the Reactor Coolant Pump (RCP) Services group at Westinghouse for six years, where she focused on the three-stage seal for RCP vertical pumps. Id.

         Hodgson concluded that the Pumps had eight design defects which “were the cause of the pump failures and operational problems that plagued WPCA's operation of its treatment plant since at least August 2013.” Id. at 13. In light of those defects, Hodgson concludes that it was “in WPCA's best interest” to replace the Pumps. Id. The defects Hodgson identifies include the following.

         First, Hodgson found that the 200 horsepower Pump motors were undersized, and provided only 1% above what was calculated to be required, whereas the “rule-of-thumb margin is at least 10 to 15% to allow for unknowns and/or unaccounted-for differences.” Id. at 13. Hodgson explained that smaller motors run hotter than larger motors, which raised the temperature of the coolant, which caused the lower seal to leak. Id. Once coolant leaked out of the lower seal, the remaining coolant and motor became hotter, and caused an explosion when the liquid ultimately vaporized. Id. Hodgson asserts this explosion caused both seals to fail. Id.

         Second, Hodgson found the Pumps defective because they did not include vents, and also asserted Flowserve should have alerted WPCA that it would need to add vents to the Pumps. Id. Hodgson explained that the Pumps are prone to filling with gas while off, and once a pump is full of gas, when it is turned on, the sewage will churn but will not flow. Id.

         Third, Hodgson found the Pump shafts not strong enough to render the seals and bearings reliable. Id. at 14. Hodgson opined that the Pumps lacked necessary stiffness, and that stiffness prevented the lower mechanical seals from sealing properly. Id. In addition, Hodgson asserts the Pumps were less bend-resistant than other pump manufacturers' shafts, and that they were inadequate for the exceptional demands of the WPCA system. Id.

         Fourth, Hodgson found that the lip seal for the lower bearings was defective, and had a useful life of only about three months, after which it provided no protection against contaminants entering the bearing or grease exiting the bearing. Id. At that point, fluid leaking from the pump seals could have reached the motor and caused a short circuit. Id.

         Fifth, Hodgson found Flowserve's suction elbow design defective because it caused gas bubbles to form, which blocked the flow of wastewater into the impeller and made the wastewater flow erratically. Id. This erratic flow increased the force exerted on the impeller and threatened to cause a “pump trip.” Id.

         Sixth, Hodgson found the Pump design's lack of indicators to monitor the coolant was a defect. Id. at 15. If the Pumps had included coolant monitors, Hodgson reasoned it would have been easier to address issues like a low coolant level or contaminated coolant. Id. Without monitors, Hodgson asserted the “only indication WPCA received” when coolant overheated and became contaminated for these problems “was that the motor automatically shut off due to high temperature.” Id.

         Seventh, Hodgson found that the Pump design lacked the ability to provide proper warning about a leaking seal. Id. The Pumps were designed to alert the pump operator to a seal problem if the upper seal leaked. Id. The Pumps did not include an alert when the lower seals leaked, and the only indication WPCA received of the lower seal leaks was that the motor automatically shut off due to high temperature. Id. In addition, Hodgson explained that the upper seals failed catastrophically, but grease from the thrust bearings stopped the resultant leakage from entering the barrier chamber where the moisture meter is located. Id. As a result, no alarm was triggered and WPCA was not alerted that their seals had failed. Id.

         Eighth, Hodgson found the design of the sensors for the low pressure monitors defective. Id. While Flowserve did not manufacture or design the monitors, Hodgson included them in her analysis because Flowserve supplied them. Id. Hodgson asserted the low pressure discharge sensors were supposed to automatically stop the pump when the pump could not generate enough pressure. Id. Hodgson opined that the pressure sensors failed to provide that protection, and in fact “did not provide any protection for the first 3 years that [the Pumps] were in operation.” Id.

         In addition to asserted defects, Hodgson opined that the Pumps failed to meet three Project specifications. First, the specifications required the Pumps to include a suction elbow that provided equal flow distribution to the impeller; Hodgson asserted the provided elbows allowed erratic flow. Id. at 16. Second, the specifications required the Pumps' upper seals to be in an oil-filled chamber; Hodgson asserts the upper seals provided were in an air-filled chamber. Id. Third, the specifications required the bearings to be permanently lubricated; Hodgson asserts the supplied bearings eventually lost their lubrication. Id.

         Lastly, Hodgson opined that Flowserve delivered equipment that did not match the description in its purchase order submittal. Id. at 16. Specifically, Flowserve represented that it would provide common cartridge seals to be used as lower seals, but in actuality they provided component seals. Id. Hodgson explained that cartridge seals are pre-set and pre-tested, whereas component seals are not pre-tested and require adjustments upon installation. Id.

         Hodgson advised that the cost of replacing the Pumps' motors with larger Flowserve motors would be too expensive, and would also be ineffective because the Pumps would still be “too sensitive” after the motor replacement. Id. at 17. For these reasons, she recommended replacing the Pumps with pumps from another manufacturer. Id.

         Hodgson also concluded that Flowserve should not have denied WPCA's warranty claim, because the Pumps' failure was due to a design defect rather than improper operation. Id. Hodgson concluded the Pumps' inability to run dry without failing was due to the aforementioned design defects, including inadequately lubricated seals, a lack of vents, an improperly sized motor, poorly designed elbows, and inadequate sensors. Id. Hodgson asserts the Pumps failed because of those design defects, rather than an operational issue. Id.

         C. Analysis: Motion to Exclude Hodgson

         Defendant moves to exclude Hodgson's testimony because Hodgson lacks the qualifications required to testify and because Hodgson's conclusions are not supported by acceptable methodology. [Dkt. 66.] The Court addresses each challenge to Hodgson's report below.

         i. Hodgson's Credentials

         Flowserve asserts Hodgson is unqualified to opine on whether the Pumps were defective because she does not have the requisite experience with the type of pump at issue in this case. [Dkt. 122.]

         “District courts are accorded considerable discretion to determine an expert's qualifications.” United States v. Diallo, 40 F.3d 32, 34 (2d Cir. 1994). A witness is qualified where he or she has “superior knowledge, education, experience, or skill with the subject matter of the proffered testimony.” Vale v. U.S., No. 15-3265, 2016 WL 7435909, at *1 (2d Cir. Dec. 21, 2016) (summary order) (finding an expert unqualified to testify as to plaintiff's medical diagnosis where expert was trained in a different medical discipline, had no a valid license to practice medicine, and had not practiced medicine in 16 years).

         “The expert's qualifications . . . must be relevant to the opinions she offers. Whether a witness is qualified as an expert can only be determined by comparing the area in which the witness has superior knowledge, skill, experience, or education with the subject matter of the witness's testimony.” Diallo, 40 F.3d at 34 (finding expert qualified who had never been to Benin but had advised neighboring African countries about their gold export policies relying on their gold export regulations, reasoning that experience meant the expert was able to evaluate the effect Benin's regulations had on exporting gold from Benin); see also Duchimaza v. U.S., 2016 WL 5799295, *5 (D. Conn. Sept. 30, 2016) (finding expert's 22 years of experience in retailer compliance before the EBT program was implemented insufficient to qualify him as an expert in identifying EBT fraud).

         Flowserve asserts Hodgson is unqualified to opine on whether the Pumps were defective because she based many of her opinions on her experience with nuclear pumps, rather than wastewater pumps. [Dkt. 122.] To further support its position that Hodgson does not have the requisite knowledge for this case, Flowserve cites Hodgson's admission that she consulted with fellow engineers before rendering her opinion. Id.

         WPCA responds that Hodgson is qualified to testify in this case because she has worked as an engineer in pump design or inspection for twenty years. WPCA states the argument that Hodgson is not qualified to testify about problems with mechanical seals and pumps at the WPCA facility because she worked on mechanical seals and pumps at nuclear power plants is “akin to suggesting that an engineer who gained her knowledge working for Chevrolet could not testify about combustion engines, or a particular engine at issue, in a vehicle manufactured by Ford.” [Dkt. 141 at 2-3.]

         Hodgson was responsible for inspecting and troubleshooting problems with pumps for DuPont's pump division for over 15 years. Hodgson Report at 1. Hodgson also worked for Westinghouse as a lead development and design engineer for seals of reactor cooler pumps. Hodgson Dep. at 24. Hodgson described her experience with wastewater facilities in her deposition:

We were on the same floor as the civil engineers [at DuPont], the pump consultants, and when they came asking us about, you know, the pump, I had just been trained on the Hydraulic Institute standard on how to design a pump, designing the pumping system for wastewater. And they, they weren't aware of that standard, so I helped with -- with that by following the HI standard and setting up a spreadsheet for them. But I didn't have to go out and then do anything more than ‘here are the equations, here are the drawings, here's the spreadsheet.'

Id. at 37.

         Flowserve has failed to explain why Hodgson's experience designing and troubleshooting pumps is not applicable to this case. For example, the Court notes that Hodgson has never worked with wastewater pumps in the context of a municipal wastewater treatment facility, and has never worked with dry pit submersible pumps. [Dkt. 122-3 (Hodgson Dep.) at 31-37.] However, she has designed a seal to prevent a leak from reaching a nuclear reactor and causing the nuclear reactor to melt down. Id. at 32-34. While Flowserve posits that the radioactivity of a nuclear reactor would impact the type of seal required to prevent a leak, Flowserve offers no evidence supporting its conclusion that Hodgson's experience with nuclear reactor pumps has not equipped her with relevant skills and expertise. Nor has Flowserve explained why Hodgson's experience in DuPont's pump division is inapplicable.

         Likewise, while Hodgson has never worked for a pump manufacturer and has never performed hands-on maintenance on a pump, her training at DuPont required her to install mechanical seals on pumps. Id. at 32, 35-36. Flowserve again fails to establish why Hodgson's experience is inadequate. While an expert witness's qualifications must be within the subject matter of the witness's testimony, the expert's experience need not be identical to the case at hand. See Diallo, 40 F.3d at 34.

         In addition, Flowserve's assertion that Hodgson's consultation with fellow engineers renders her unqualified is unavailing. Hodgson explained at her deposition that she spoke with a retired pump consultant, Robert Hart, who “told [her] how pumps are designed, ” and opined that the Flowserve pump design “looks like they were picking existing parts so, you know, not -- it is not their own motor, that sort of thing. They didn't design the motor.” Hodgson Dep. At 127. She also testified she spoke with ...


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