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Reeves Construction Co. v. Hayward Industries, Inc.

United States District Court, M.D. Georgia, Macon Division

February 21, 2019




         The Court previously granted Defendant Diacom Corporation’s Motion for Summary Judgment, [Doc. 98], such that the only remaining claims are against Defendant Hayward Industries, Inc. (“Hayward”). Hayward moves the Court to grant summary judgment on the claims against it [Doc. 57] and to exclude the expert testimony of Dr. Fredrick Willard [Doc. 58]. For the reasons that follow, Hayward’s Motion for Summary Judgment [Doc. 57] is GRANTED, and its Motion in Limine [Docs. 58] is DENIED as moot.


         In 2008, Plaintiff ordered an MP-10S 75tph Asphalt Emulsion System, Continuous Injection Process machine (“CIP”) from non-party Dalworth Machine Products (“Dalworth”) to be used in manufacturing asphalt paving and other materials. [Doc. 1,¶¶ 6–8; Doc. 69-1, ¶¶ 1, 4]. The CIP included an acid system that supplied hydrochloric acid for use in manufacturing the asphalt products. [Id. at ¶ 4; Burdette Depo., pp. 30:7– 16, 34:12–21]. Prior to Plaintiff using the CIP, Dalworth installed a gauge guard manufactured by Hayward and distributed to Dalworth by non-party Wipco, which was used to protect the CIP’s pressure gauge from corrosive or otherwise damaging fluids. [Doc. 69-1, ¶¶ 10, 11; Doc. 83, ¶ 10, 12]. A component part of the gauge guard was a diaphragm manufactured by Diacom and composed of Viton, a fluoropolymer. [Doc. 83, ¶¶ 12, 20]. The gauge guard is depicted below with the diaphragm labeled as “4. FPM Membrane.”

         (Image omitted)

         On June 2, 2014, the Viton diaphragm failed due to hydrogen chloride (i.e., the gaseous form of undissolved hydrochloric acid) continuously permeating through the Viton diaphragm over time and reacting with water on the other side of the diaphragm to create hydrochloric acid, which corroded the stainless-steel parts of the pressure gauge to which the gauge guard was attached. [Doc. 1, ¶ 18; see also Doc. 94, pp. 22:23-25:22]. The CIP leaked approximately 30 gallons of hydrochloric acid throughout Plaintiff’s facility, destroying the CIP and part of the building in which the CIP was housed. [Doc. 69-1, ¶¶ 21, 22]. Plaintiff alleges that the leak caused approximately $1.8 million in damages. [Doc. 1, ¶ 28].

         As a result, Plaintiff filed the instant lawsuit, alleging that the damages to its property were proximately caused by Hayward and Diacom’s negligent failure to (1) use due care in the selection of materials for use in acid-contact environments, (2) use due care to avoid causing injury to others, (3) provide accurate and timely information concerning the suitability of their products for acid-contact environments, including the effect of permeability on the useful life of their products, and (4) provide adequate warnings regarding the likelihood that their products would fail over time when used in acid-contact environments. [Doc. 1, ¶ 26]. Plaintiff suggests that the gauge guard should have come with a warning in the form of a label stating the device’s expiration date when used with acids. [Doc. 94, p. 97:1–7]. The Court granted summary judgment in favor of Diacom on all of the claims Plaintiff asserted against it. [Doc. 98].

         Hayward now moves for summary judgment on all of Plaintiff’s claims against it and seeks to exclude the testimony of Plaintiff’s expert witness, Dr. Fred Willard. The Court held a hearing on the issues, conducted an extensive review of the record, and now finds as follows.


         A. Standard of Review

         A party is entitled to summary judgment “if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” Fed. R. Civ. P. 56(c). As to issues for which the movant would bear the burden of proof at trial, the “movant must affirmatively show the absence of a genuine issue of material fact and support its motion with credible evidence demonstrating that no reasonable jury could find for the non-moving party on all of the essential elements of its case.” Landolfi v. City of Melbourne, 515 F. App’x 832, 834 (11th Cir. 2013) (citing Fitzpatrick v. City of Atlanta, 2 F.3d 1112, 1115 (11th Cir. 1993)). As to issues for which the non-movant would bear the burden of proof at trial, the movant may (1) simply point out an absence of evidence to support the non-moving party’s case or (2) provide “affirmative evidence demonstrating that the [non-movant] will be unable to prove its case at trial.” United States v. Four Parcels of Real Prop. in Greene & Tuscaloosa Ctys., 941 F.2d 1428');">941 F.2d 1428, 1438 (11th Cir. 1991) (citing Celotex Corp. v. Catrett, 477 U.S. 317');">477 U.S. 317, 325 (1986)).

         Once the movant satisfies its burden, the burden shifts to the non-movant, who must “go beyond the pleadings and present affirmative evidence to show that a genuine issue of material fact exists.” Porter v. Ray, 461 F.3d 1315');">461 F.3d 1315, 1320 (11th Cir. 2006) (citing Fitzpatrick, 2 F.3d at 1115–17) (emphasis added). “A factual dispute is genuine ‘if the evidence is such that a reasonable jury could return a verdict for the nonmoving party.’” Four Parcels, 941 F.2d at 1437 (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242');">477 U.S. 242, 248, (1986)).

         B. Design Defect

         Plaintiff’s first claim charges Hayward with breaching its duty to “use due care in the selection of materials for use in acid-contact environments and applications.” [Doc. 1, ¶ 25(a)]. This allegation seems to implicate design-defect liability; however, during the hearing on Defendants’ motions, Plaintiff’s counsel specifically indicated that this is not a design-defect case. [Doc. 94, p. 92:12–18].[1] Accordingly, Plaintiff has waived any design defect claim that can be inferred from the Complaint, and the Court will not consider any allegations or arguments as to such a claim. To the extent a design-defect claim is present, it is DISMISSED without prejudice.

         C. Failure to Warn

         Plaintiff argues that the true crux of this case is Hayward’s failure to warn of the ability of acids to permeate through the diaphragm in its gauge guards. Generally, “the manufacturer of a product which, to [the manufacturer’s] actual or constructive knowledge, involves danger to users, has a duty to give warning of such danger.” Fouch v. Bicknell Supply Co., 756 S.E.2d 682, 689 (Ga. Ct. App. 2014) (quoting Chrysler Corp. v. Batten, 450 S.E.2d 208');">450 S.E.2d 208, 211 (Ga. 1994)). This duty extends to “foreseeable dangers arising from the reasonable use for which the product is intended” and requires that the manufacturer “exercise [ ] reasonable care to inform third persons of the dangerous condition or of the facts which make the product likely to become dangerous.” Camden Oil Co. v. Jackson, 609 S.E.2d 356, 358 (Ga. Ct. App. 2004). Nevertheless, the existence of a duty to warn “depends on the foreseeability of the use in question, the type of danger involved, and the foreseeability of the user’s knowledge of the danger,” all of which are ...

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