United States District Court, D. Connecticut
WATER POLLUTION CONTROL AUTHORITY OF THE CITY OF NORWALK, Plaintiff,
FLOWSERVE U.S. INC. Defendant,
GILBANE BUILDING CO. Third-Party Defendant
MEMORANDUM OF DECISION ON MOTIONS FOR SUMMARY
JUDGMENT AND TO EXCLUDE EXPERTS
Vanessa L. Bryant, United States District Judge.
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.
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.
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.]
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.
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
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.
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).]
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.]
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.]
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.
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 (“VFD”) for Pumps 2 and 6
overheated and failed. [Dkt. 120-7 at 123.]
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.]
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. [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.]
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.]
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
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.
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.]
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.]
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.]
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.]
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.]
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.]
point in December 2014, Flowserve and AEM inspected the Pumps
and discovered that five low discharge sensors,
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.
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.
have been no documented catastrophic failures of Pumps 2, 3,
4, or 6. [Dkt. 120-2 at 115-119, 127.]
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.]
Motions to Exclude Experts
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.
Standard of Review
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).
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.
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.
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).
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.
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.
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.
Summary of Judith Hodgson's Report
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.
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
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.
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
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.
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.
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.
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.”
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.
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.”
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
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.
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.
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.
Analysis: Motion to Exclude Hodgson
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.
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.
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
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).
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.
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.]
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.
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.
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.
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 ...