ExxonMobil Oil Corp. v. Amex Construction Co. - A Daubert Challenge Upheld
On November 11, 2009 Judge Virginia Kendall of the Northern District entered memorandum opinion and orders in the matter styled, ExxonMobil Oil Corp. v. Amex Construction Co., Case No.07 C 4278 applying a Daubert challenge from third party defendants to opinions held by Amex's retained expert Dr. Nicholas Biery of SEA, Ltd. One of the defendants, Ambitech Engineering, was charged with negligence in the design of the plastic piping, which was serving as a temporary by-pass for the return cooling water line of ExxonMobil's Joliet refinery. The plastic pipe uncoupled at a welded intersection during plant operation. The resulting shutdown resulted in a very large business interruption claim and a smaller physical loss/damage component. As to Ambitech, the underlying defendant, contractor Amex (who installed the plastic pipe and performed welding of the sections) alleged that Ambitech was negligent in the design of the specified piping. Specifically, the issue surrounded whether a thicker wall section ought to have been specified in conformance with ASME standard B 31.3 and whether the failure to specify a thicker wall section led to the de-coupling event. .
The attack on Dr. Biery and his opinions was not foundational, but rather focused on the lack of methodology/substantiation in expressing opinions which were challenged as being unsupported and subject to the Daubert prohibition on the expression of conjecture passing as expert opinion. Dr. Biery was of the opinion that Ambitech did not exercise the requisite degree of care/skill in detailing the HDPE pipe since the specified by-pass had a wall thickness "thinner" than what was required under ASME B31.3 requirements. Ambitech contended that the wall thickness was of no legal consequence since there was never any credible evidence upon which Dr. Biery could say that the pipe ever experienced heat/pressure conditions in situ exceeding the installed pipe's material capacities. Hence, you had a situation where a party's alleged breach of duty was not causative of the loss since the breach could not be proven as constituting a proximate cause of the loss. Judge Kendall ruled that Dr. Biery is not allowed to testify that the allegedly incorrectly specified plastic pipe failed in service because of plant operating conditions. Dr. Biery will only be allowed to opine that there was a deviation from B31.3 requirements but won't be able to testify that it was causative of the loss.
