2004 | Cited 0 times | D. Maine | January 9, 2004


In 1998, Androscoggin Energy, LLC, undertook to build an electric andsteam generating facility in Jay, Maine and hired Black & VeatchConstruction, Inc., to serve as contractor on the project. During a torchcutting operation associated with the project, a fire broke out and theproject was damaged. In the course of cleaning up debris from the fire, afire blanket that was used in connection with the torch cutting operationwas discarded by the employees of a subcontractor. Reliance InsuranceCompany, the builder's risk insurer for the project, paid outapproximately 1.6 million dollars to Androscoggin Energy and Black &Veatch in insurance proceeds. M. Diane Koken, as Liquidator on behalf ofReliance Insurance Company ("the Liquidator"), pursues throughsubrogation a products liability suit against AuburnPage 2Manufacturing, Inc., a manufacturer of fire blanket, and Inpro, Inc., adistributor.1 (Docket Nos. 12, 182.)

Separate and apart from the Liquidator's claims, Black & Veatch hasasserted a cross-claim against Auburn Manufacturing and Inpro, seekingto recover more than 7.4 million dollars for additional repair costs andliquidated damages it paid to Androscoggin Energy as a consequence ofdisruption in the project and another cross-claim for contribution orindemnification in connection with the Liquidator's suit. (Docket No.15.)

Auburn Manufacturing and Inpro, the primary target of the Liquidator'sclaims, have asserted cross-claims for contribution and indemnity againstBlack & Veatch in connection with the Liquidator's suit. (DocketNos. 32 & 45.) They have also asserted cross-claims for contributionand indemnity against Redco, Inc., and O'Connor Constructors, Inc.,subcontractors on the project, in connection with both the Liquidator'ssuit and Black & Veatch's cross-claim. (Id.) Inpro, for goodmeasure, has also asserted a cross-claim for contribution against Auburn(Docket No. 45.)

Auburn Manufacturing and Inpro have moved for summary judgment againstall of the claims against them. (Docket Nos. 74 & 75.) They contendthat the available evidence cannot support a finding that Inpro suppliedor that Auburn manufactured the fire blanket associated with the fire. Irecommend that the Court deny the motions.Page 3


This case arose from a fire that occurred during the construction of anelectric and steam generating facility in Jay, Maine, known to theparties as the Androscoggin Energy project and referred to herein as "theproject." Black & Veatch Construction, Inc., served as contractor forthe project and Redco, Inc., and O'Connor Constructors, Inc., served assubcontractors for Black & Veatch. Reliance Insurance Company was thebuilder's risk insurer. On May 17, 1999, a fire broke out at the projectwhen a Redco employee was torch-cutting a steel lifting lug above turbinenumber 3 (a generator). The fire was caused when pieces of slag, ormolten steel, fell onto a fire blanket ("the subject blanket"), which wascovering a plywood platform on top of turbine number 3. The fire did notdirectly cause damage to the generator. Rather, chemicals discharged froma fire extinguisher entered the turbine and caused damage to it,requiring repair to the turbine and delaying the project. Workmendiscarded the subject blanket shortly after the fire. The subject blankethas never been recovered. The sole contest presented by the instantsummary judgment motions concerns the sufficiency of the evidence thatAuburn manufactured and Inpro distributed the subject blanket.

Perry Austin, the Redco millwright who was torch-cutting the lug,participated in two depositions in which he was presented with blanket"exemplars" and asked to identify which most looked like the subjectblanket. In the first deposition, conducted July 3, 2003, Austininitially described the subject fire blanket as having been gray incolor, but then changed his mind and indicated that the subject blanketwas orange and resembled a blanket manufactured by "Tillman." (Docket No.76, ¶¶ 16-17.) During this deposition, Austin was disparaging of hisPage 4own testimony: "I know I'm not any help, whatsoever. Yes, it lookslike the [orange] one. I said the other [gray] one did, too." (Docket No.76, ¶ 18.) Auburn's blanket material is tan in color. (Docket No. 95,Attached Ex. 7.) During his second deposition, conducted August 28, 2003,Austin was shown an exemplar of an Auburn fire blanket (so-called exhibit25) and the following colloquy transpired: Q. Where have you seen a burn blanket like this before? A. This looks like the blanket. Q. That you were using on May 17th, 1999, the time of the fire? A. Yes, it does.(Docket No. 95, ¶ 7 (Austin's August Depo. Trans. at 10).)4Subsequently, Austin was further questioned by other counsel, virtuallyall of whom presented him with additional blanket exemplars to compare tothe Auburn exemplar. The first comparison exemplar (deposition exhibit67) was purportedly a "Steiner blanket." Austin indicated that he stillwould choose the Auburn exemplar as more resembling the subject blanketAustin was then presented with another exemplar (deposition exhibit 68),purportedly an "Ameteck blanket." Once again, Austin chose the Auburnexemplar, though he acknowledged that he would not choose it if he had tomake his decision based solely on color. Austin was presented yet anotherexemplar (deposition exhibit 69), purportedly an "ERCO blanket."5This time, as between the AuburnPage 5exemplar and the ERCO exemplar, Austin indicated that he was gettingconfused and no longer knew which exemplar was most like the blanket inuse at the time of the fire. (Id. at 19-20.) Thereafter, upon furtherquestioning, he indicated that, in terms of texture and weave, he"want[ed] to say this one," again indicating the Auburn exemplar. (Id. at21-22.) But when asked one last time which exemplar "looks the most likethe one you were using on the day of the fire," Austin indicated, "Anyone of these three here," indicating exhibits 25, 68 and 69. (Id. at 27.)(See Docket No. 95, ¶ 7; Docket No. 98, Additional6 ¶¶ 7-12.)

It is undisputed that three rolls of Auburn fire blanket were deliveredto the project. (Docket No. 75, ¶ 25.) Two-perhaps three-of theserolls contained blanket material identical to exhibit 25 in all waysexcept that the material weighed approximately 25% more per square yard.(Docket No. 95, ¶ 24.) A jury might find that the third roll, whichwas delivered roughly one week prior to the fire, contained materialidentical to exhibit 25.7 (Docket No. 95, ¶ 25.) According toPaul Gagnon, Redco's general foreman for the project, there could havebeen as many as one hundred fire blankets on the site, but his testimonyalso permits thePage 6inference that this many fire blankets could have been cut from the threerolls of Auburn blanket. (Docket No. 76, ¶ 63; Docket No. 95, ¶63.) Gagnon testified that the subject blanket could have been cut from aroll other than the one in the Redco millwrights' tool crib, but he alsotestified that it would be the usual thing for a Redco millwright toobtain fire blanket from the Redco millwrights' tool crib, whichcontained its own roll of blanket. (Docket No. 95, ¶ 64; Docket No.98, ¶ 64.) According to Gagnon, Redco millwrights would tellpurchasing (i.e., Jay Adams, introduced below) whenever they needed anadditional roll of fire blanket. (Docket No. 95, ¶ 34.)

A jury might infer-but would not be required to do so-that a partialroll of ERCO blanket was also delivered to the project from O'Connor'swarehouse sometime prior to the fire. (Docket No. 76, ¶¶ 35-37.)In support of this factual statement, Auburn cites a set of invoices for"2025/9383 glass cloth," all of which was shipped from ERCO to O'Connorat locations in Charlestown and Canton, Massachusetts during the relevanttime period. (Docket No. 76, ¶¶ 35-36.) The individual who served asmaterials manager for Redco and O'Connor for the project, Jay Adams,testified that he twice "requested" fire blanket from O'Connor's Canton,Massachusetts warehouse for use at the project. Adams testified thatblanket sent in response to his request would have come to the projectprior to the fire and would have been tan in color. (Docket No. 76, ¶¶40-42.) However, Adams's testimony indicates that he only observed thearrival of one partial roll of tan blanket in January. (Docket No. 76,¶¶ 42-43, Ex. Q at 48:3-23.) His testimony does not support a findingthat a roll of fire blanket actually arrived from the Canton warehouse inthe spring of 1999 or that any such blanket would have been tan in color.Although the jury might infer that a roll of tan fire blanket arrived inthe spring because Adams says he requested one around that time, it isnot appropriate for the Court to draw such inferencesPage 7in favor of the summary judgment movant. Moreover, it would not beincumbent on the jury to credit Adams's testimony concerning the allegedpartial role of fire blanket allegedly delivered in January 1999. Auburnalso points to one ERCO invoice reflecting a shipment of product directlyfrom ERCO to the project. (Docket No. 76, ¶ 37.) However, the productidentified in the invoice is "Durablanket." Durablanket consists of aone-inch thick blanket insulation that is not meant for horizontalcapture of welding slag and sparks. Not only is Durablanket not fireblanket, but being one-inch thick, Durablanket bears little resemblanceto the thin fire blanket exemplars presented to Austin during hisdeposition and the appropriate summary judgment inference is thatDurablanket was not associated with the fire. (Docket No. 95, ¶ 35.)

Also relevant to the inquiry is a January 4, 2000, letter from O'ConnorManager Kenneth Snee to Attorney Anthony Zelle, counsel for Reliance.Snee wrote the letter in response to a request from Attorney Zelle forany available information concerning the subject blanket. In response tothis request, Snee indicated that the blanket had been discarded, butthat he was enclosing a copy of an Inpro invoice dated May 10, 1999, forfire blanket "[that] was purchased just prior to the incident." (Id.,¶ 12; Docket No. 98, ¶ 1.) Finally, Eugene Whalberg, Rule 30(b)(6)corporate designee for both Redco and O'Connor, testified that Redco andO'Connor purchased more fire blanket rolls for the project only as neededfor the work and that, so far as either Redco or O'Connor knew, the threerolls of Auburn fire blanket purchased from Inpro were the only sourcefor the fire blankets used on the project. (Docket No. 95, ¶ 12.)

Motions Related to the Summary Judgment Record

1. Black & Veatch's Motion to Strike Opinions of William M.Johnson (Docket No. 96)

Auburn and Inpro offer testimony from William M. Johnson, generalmanager of Inpro, to the effect that a project the size of theAndroscoggin Energy Project would have requiredPage 8approximately 93 rolls of fire blanket material and that the three rollsof Auburn blanket Inpro supplied to the project would not have beensufficient to service all of the hot work performed on the project byRedco and O'Connor. (Docket No. 76, ¶¶ 65-66.) Black & Veatchmoves to strike this opinion testimony on various grounds, includingDaubert grounds. (Docket No. 96.) In opposition to the motion, Auburn andInpro describe Johnson as a fact witness, not an expert witness, andargue that his lay opinions are permissible inferences drawn fromadmissible fact testimony. (Docket No. 110.) I agree with Auburn andInpro that Johnson's fact testimony should not be stricken. On the otherhand, when addressing a summary judgment motion the Court drawsinferences in favor of the non-movant. In effect, Auburn and Inpro areasking the Court to draw inferences against the non-movants in order tocredit Johnson's testimony. Ultimately, this testimony should neither bestricken, nor credited. A jury would be free to disregard Johnson'stestimony at trial for several reasons, including (1) Johnson'sacknowledgement that he has no experience in welding, (2) his mistakenassumption that Redco employees would not use any given fire blanketrepetitively, which is belied by Austin's testimony, (3) the fact thatmuch hot work is done without using fire blanket, (4) the contradictorytestimony by Jay Adams, Redco and O'Connor's purchasing agent, that theentire project would likely only require six to eight rolls (Docket No.95, ¶¶ 65-66; Docket No. 98, ¶ 65), and the fact that a jurysimply need not infer, as Johnson does, that the subject project hasanything in common with the entirely unrelated projects that form thebasis of Johnson's inferential opinion. The motion to strike Johnson'saffidavit testimony is DENIED.Page 9

2. Auburn's Motion to Strike Non-Rule 56 Evidence Submitted byBlack & Veatch (Docket No. 108)8

In opposition to Auburn and Inpro's motions for summary judgment, Black& Veatch has presented a series of additional statements of materialfact (Docket No. 95, ¶¶ 71-80) that essentially ask the Court to drawan inference that Redco and O'Connor witnesses lied under oath duringtheir depositions in an effort to prevent Black & Veatch fromidentifying the subject blanket as an Auburn blanket so as to protecttheir employers from possible liability on Auburn and Inpro'scross-claims for contribution. The requested inference is premised onalleged communications involving Black & Veatch counsel,"Redco/O'Connor" counsel and certain O'Connor witnesses.9 It is alsopremised on certain communications between counsel concerning theapplication of a confidential settlement agreement to the relationshipbetween Black & Veatch, on the one hand, and Redco and O'Connor, onthe other. The alleged communications are all described in affidavitssubmitted by Black & Veatch's counsel. Although Rule 56 certainlyimposes an obligation on the Court to draw inferences in favor of Black& Veatch, a non-movant, the requested inferences are exceedinglygrasping in nature. Asking the Court to infer perjury on the part ofwitnesses based on their silence concerning an issue and based on thewrangling of counsel is a curious way to generate a genuine issue ofmaterial fact on an issue concerning which one bears the ultimate burdenof proof. My conclusion is that the challenged statements of fact addnothing material to the summary judgment record and I likely would havedisregarded them even in the absence of a motion to strike. The onlystatement in this group that appears to present a material fact statementisPage 10paragraph 71, in which Black & Veatch contends that Mr. Snee told itscounsel, Attorney Lee Davis, that the subject blanket was supplied byInpro. This conversation allegedly occurred during a meeting on April30, 2001. (Docket No. 95, ¶ 71.) However, Attorney Davis's co-counseland associate, Keith Pittman, failed to inquire about this allegedconversation during Snee's July 31, 2003, deposition, despite Snee'stestimony during the deposition that the blanket could have come fromanother source. Needless to say, if there is an appropriate manner forBlack & Veatch to impeach Snee's deposition testimony at trial, itwould not involve putting Attorney Davis on the witness stand. Havingfailed to inquire about the alleged prior inconsistent statement duringthe deposition or to preserve the alleged statement in any more reliableway, I am not inclined to permit Black & Veatch's counsel toattribute statements to a witness, whether those statements are hearsayor not.

Auburn and Inpro also ask the Court to strike Black & Veatch'sreference to certain O'Connor packing slips, which Black & Veatchreferenced in response to Adams's statement that two rolls of non-Auburn,tan fire blanket arrived at the project in early 1999, before the fire.(See Docket No. 95, ¶ 42, Ex.31.) Black & Veatch failed to tiethese exhibits to any authenticating testimony and they are stricken forpurposes of this summary judgment motion.

Finally, Auburn and Inpro ask the Court to strike testimony by two factwitnesses, John Davisson, who served as Black & Veatch's projectmanager, and Alan Goodman, a private investigator retained by Black &Veatch's counsel in connection with this suit. Neither of these gentlemenprovide expert opinion testimony in their summary judgment affidavits.The averments they offer are challenged on various grounds, includingrelevance and lack of materiality. I have not found it necessary toincorporate the affidavit testimony of these witnesses on behalf of Black& Veatch, having found sufficient evidence in the record to disposePage 11of the summary judgment motions without it, as discussed below. Sufficeit to say that separately analyzing each of the averments contained inthese two affidavits and the grounds given for striking them would notmaterially assist the Court in resolving the summary judgmentcontest.10 The motion to strike is GRANTED with regard toBlack & Veatch's statements of additional material facts 71 through80 and to the packing lists referenced by Black & Veatch in itsqualifying response to statement of material fact 42. The motion isDENIED in all other respects.

3. Black & Veatch's Motion for Leave to File Surreply and toSupplement the Record (Docket No. 123)

Black & Veatch moves for leave to submit a surreply memorandum anda surreply statement of material facts. Black & Veatch argues that itshould have an opportunity to respond to Auburn's statement that Black& Veatch has a "cavalier" attitude toward its Rule 11Page 12obligations.11 Black & Veatch can rest assured that I havenot based my recommendation in any way on this invective. Other than thisconcern, Black & Veatch's request is simply an effort to have thelast word. The vast majority of its proposed surreply memorandum echoesprior submissions. As for the surreply statement of material facts, Black& Veatch is, in effect, asking that it be permitted to deny andqualify on Auburn's denials and qualifications of Black & Veatch'soriginal denials and qualifications of Auburn's statements of fact Thisis a far cry from the process envisioned by Local Rule 56. Additionally,the surreply statements Black & Veatch presents consist primarily ofcommentary on the evidence12 and rely primarily on citation to Black& Veatch's opposition to Auburn's motion to strike rather than therecord. Finally, the summary judgment record is already sufficientlymuddled by Black & Veatch's decision to present the majority of itscase in qualifying statements of material fact, rather than in itsadditional statement of material facts. One would think that counselwould prefer to set forth the factual basis for a claim in a statement ofadditional material facts. Among other things, such an approach enablescounsel to present the facts of the case in the fashion that is mostconducive to a favorable disposition. Such an approach also cleans up thepapers significantly, because it permits the movant to address theclaimant's additional statements directly, without having to admit,qualify and deny the claimant's admissions, qualifications and denials.The motion to file the surreply papers is DENIED.Page 13


Summary judgment is warranted only if "the pleadings, depositions,answers to interrogatories, and admissions on file, together with theaffidavits, if any, show that there is no genuine issue as to anymaterial fact and that the moving party is entitled to a judgment as amatter of law." Fed.R.Civ.P. 56(c). The Court must view the summaryjudgment facts in the light most favorable to the nonmoving party andcredit all favorable inferences that might reasonably be drawn from thefacts without resort to speculation Merchants Ins. Co. v. United StatesFid. & Guar. Co., 143 F.3d 5, 7 (1st Cir. 1998). If such facts andinferences could support a favorable verdict for the nonmoving party,then there is a trial-worthy controversy and summary judgment must bedenied. ATC Realty. LLC v. Town of Kingston 303 F.3d 91, 94 (1st Cir.2002).

In the context of a summary judgment motion premised on the issue ofproduct identification, the nonmoving party may identity the product bymeans of circumstantial evidence, but that evidence must support theinference that the movant's product was probably-rather than possibly oras likely as not-the product that caused the harm. See Tragarz v. KeeneCorp., 980 F.2d 411, 418 (7th Cir. 1992) (concerning identity of sourceproduct in asbestos exposure case); Healey v. Firestone Tire & RubberCo., 663 N.E.2d 901, 903 (N.Y. 1996) (concerning identity of manufacturerof exploding tire rim); Riley v. S.C. Johnson & Son. Inc., 2003 WL22956922, *2, 2003 U.S. Dist. LEXIS 22453, *6 (W.D.N.Y. March 18, 2003)(Feldman, U.S. Mag. J.); see also Ricci v. Alternative Energy. Inc.,211 F.3d 157, 162 (1st Cir. 2000) (recognizing that proof of proximatecausation by circumstantial evidence requires an inference of probablecausation, not merely possible causation).Page 14

Auburn and Inpro argue that the subject blanket has not been identifiedto a reasonable probability as an Auburn blanket supplied by Inpro. Theycontend that there is a mere possibility that the subject blanket was anAuburn blanket because only three rolls of Auburn blanket are known tohave been present at the project site and additional, non-Auburn fireblankets were also present at the site. (Auburn's Mot. Summ. J., DocketNo. 75, at 15-17.) The ultimate question is whether, if it credited allof the evidence favorable to the non-movants, drew all availablereasonable inferences, and discredited all of the evidence favorable tothe movant that it did not have to believe, see Reeves v. SandersonPlumbing Prods. Inc., 530 U.S. 133, 150-51 (2000), a jury couldconclude, without engaging in speculation, that the subject fire blanketwas probably manufactured by Auburn and supplied by Inpro. In my view, ajury could make the necessary finding based on the following evidence andreasonable inferences:

(1) The three invoices reflecting delivery of Auburn-manufactured fireblanket by Inpro, the Inpro warehouse picking ticket related to the thirdroll of Auburn blanket, and the total absence of any documentary evidenceindicating that blanket from another source was delivered to the project.

(2) Austin's testimony that the Auburn series 2025 exemplar looked likethe subject blanket

(3) The exhibits depicting the similar appearance of Auburn series 2025material and series 2400 material, which could support a conclusion thatAustin's testimony concerning the Auburn exemplar is probative of theidentity of the subject blanket, regardless of whether he was shown 2025material instead of 2400 material.

(4) The absence of any evidence that Steiner or Ameteck blankets werepresent at the project.Page 15

(5) The absence of any documentary evidence that ERCO blanket waspresent at the project.

(6) The absence of any testimony based on personal knowledge that aroll of tan fire blanket was actually delivered to the project fromO'Connor's Canton warehouse in the spring of 1999.

(7) The movants' attempt to pass off a delivery of ERCO Durablanket asa delivery of fire blanket.

(8) Inpro's delivery to O'Connor at the project of the third roll ofAuburn fire blanket one week prior to the fire.

(9) Gagnon and Wahlberg's testimony that O'Connor purchased more fireblanket rolls for the project as needed, which could support an inferencethat Redco and O'Connor's blanket requirements for the May work onturbine 3 were satisfied by the May order of Auburn blanket

(10) Testimony that Redco millwrights would normally use fire blanketobtained from their own tool crib and would request additional fireblanket through the purchasing agent.

(11) O' Connor and Redco's use of the same purchasing agent.

(12) Snee's January 4, 2000, letter to Anthony Zelle, which couldsupport an inference that O'Connor considered Inpro's third delivery ofAuburn blanket to be the most likely source of the subject blanket,because it is the only answer offered in response to a request for theidentity of the manufacturer of the subject blanket and because Snee'sindication that the May 10, 1999, invoice reflected a purchase "justprior to the incident" further supports an inference that the temporalproximity of the May 10 delivery to the May 17 incident is probative ofthe probable source of the subject blanketPage 16

(13) Wahlberg's isolated testimony that the three rolls of Auburnblanket were the only known source for fire blanket used on the project,regardless of any contrary testimony he offered.


For the reasons stated herein, I DENY Black & Veatch's motion tostrike (Docket No. 96), DENY its motion for leave to file surreplysummary judgment papers (Docket No. 123), and GRANT, IN PART, Auburn'sand Inpro's motion to strike (Docket Nos. 108 and 112). I furtherRECOMMEND that the Court DENY Auburn and Inpro's Motions for SummaryJudgment (Docket Nos. 74 & 75).


1. The Liquidator also pursues contract and tort claims againstBlack & Veatch and two subcontractors associated with the fire,Redco, Inc., and O'Connor Constructors, Inc., for compromising ordestroying the products liability action by discarding the blanket. 1have recommended that summary judgment be entered against these claims ina companion opinion filed January 8, 2004.

2. The Liquidator resubmitted the Second Amended Complaint with anamended signature line. The Clerk captioned this filing as a ThirdAmended Complaint. The filings are identical but for the signaturelines.

3. The factual statement recited herein is drawn from the parties'Local Rule 56 statements of material facts in accordance with the LocalRule. The factual statement construes the available evidence in the lightmost favorable to the non-movants and resolves all reasonable inferencesin their favor. Thames Shipyard & Repair Co. v. United States.350 F.3d 247, 276 (1st Cir. 2003).

4. Only the Liquidator has supplied a complete copy of Austin'sAugust 28, 2003, deposition transcript, which can be found attached asExhibit 7 to the appendix associated with Docket No. 97, captioned"Appendix of Exhibits Accompanying the Plaintiff's Opposition to AuburnManufacturing's Motion for Summary Judgment." In a deposition erratasheet signed September 29, 2003, Austin revised these two responses toread, "This looks like a fire blanket," and "I don't know." Black &Veatch argues that the errata sheet revisions support an inference ofpurposeful evasion (Statement of Material Facts in Opp. to Auburn's Mot.Summ. J., Docket No. 95, ¶ 7), but the Court need not draw any suchinference because the original testimony is admissible evidence in itsown right.

5. ERCO is an acronym for Eastern Refractories Company, Inc.

6. It is helpful if a party responding to a summary judgment statementof material facts numbers any additional statements of material factsconsecutively to the movant's statements, rather than recommencing at"1."

7. Auburn has manufactured two strains of welding blanket material.Exemplars of both can be found in the record at exhibit 7 attached toBlack & Veatch's opposing statement of material facts (Docket No.95). The exhibit illustrates how similar the two strains of materialappear. One strain of Auburn material is so-called "2400 series," whichweighs 24 ounces per square yard. The other is 2025 series, which weighs18 ounces per square yard. Other than the weight of the materials, thereis no appreciable difference between the two materials. (Docket No. 95,¶ 24.) The exemplar presented to Austin at his August 28 depositionwas composed of 2025 series material. According to Inpro's generalmanager, William Johnson, Inpro did not distribute Auburn's 2025 seriesmaterial prior to the fire, only series 2400. Auburn and Inpro seek touse this testimony to establish that the series 2025 exemplar shown toAustin during his deposition could not have served as an identificationexemplar for the subject blanket because there could not have been series2025 material at the project as of the time of the fire. (Docket No. 107,¶ 25.) This is not a particularly productive argument because, basedon the similarity in appearance between series 2025 and series 2400material, a jury might reasonably conclude that if the subject blanketlooked like series 2025 material, as Austin testified, then it alsolooked like series 2400 material. Additional evidence in the record would permit the jury to infer thatthe third roll of Auburn fire blanket delivered to the project wasactually composed of series 2025 material. (Docket No. 95, ¶ 25.) Theparties dispute whether such an inference is a fair one in light ofJohnson's testimony. (See Docket No. 107, ¶ 25; Docket No. 108 at 8.)In my view the inference is one that a jury would be free to draw.

8. Inpro joins in this motion. (Docket No. 112)

9. For example, Black & Veatch asks the Court to infer thatwitnesses from Redco and O'Connor as much as admitted that the subjectblanket was an Auburn blanket because, during telephone interviews withBlack & Veatch counsel, no one told Black & Veatch counsel thatthe blanket could have come from any other source. (Docket No.95,172.)

10. Davisson's affidavit is found at Exhibit 1 to Black &Veatch's responsive statement of material facts. Goodman's affidavit isfound at Exhibit 16 to the same. In its motion to strike, Auburn does notbother to identify the specific responsive statements of material factthat would be placed in jeopardy if the motion to strike were granted.For ease of reference, it is helpful if a party addresses a motion tostrike at the statements of material fact that are being challenged, notsimply at the underlying record source for the statement. 1 also notethat Auburn and Inpro argue for striking evidence based on irrelevance,lack of materiality and improper testimony regarding issues of law. Thesethree grounds are not especially good reasons to file a motion to strike,which serves to significantly delay the closure of the summary judgmentrecord, increase the parties' costs, and clutter the Court's docket. If astatement of material fact is truly immaterial or irrelevant, then it canbe admitted for purposes of summary judgment without risk. Additionally,the irrelevance, immateriality, or impropriety of a statement of fact canbe explained in the associated summary judgment memorandum. Motions tostrike are more appropriately used to address proffers that are bothrelevant and material, but are not of evidentiary quality for otherreasons, such as an expert opinion that is based on unreliable science ora fact statement that is supported only by inadmissible hearsay, to giveonly two examples. The affidavit of Alan Goodman is offered to impeach the affidavittestimony of William Johnson, Inpro's general manager, that Austin'sdeposition exemplar could not have been made of the same series of Auburnmaterial as the subject blanket. 1 have already indicated, see footnote7, supra, that a jury might reasonably infer that series 2400 materiallooks like the subject blanket, based on the resemblance between series2025 and series 2400 material. The affidavit of John Davisson is used byBlack & Veatch to address a variety of issues, including the likelysource of dust on the subject blanket, how the various blanket exemplarsused during the Austin depositions either do or do not resemble oneanother, how contractors normally keep records concerning the movement ofconsumable supplies and equipment, and the number of trades performinghot work on the project and the likely timeframe of that work. Althoughthese issues are relevant in one way or another to the case, Black &Veatch's use of Davisson's affidavit testimony is not part of the factualbasis on which I base my recommendation.

11. In its original cross-claim, Black & Veatch alleged that thesubject blanket was manufactured by another company, evidently becausethe Liquidator's complaint so alleged. For example, numerous cone lusorystatements are offered to the effect that various pieces of evidence arerelevant, admissible and material.

12. For example, numerous conc lusory statements are offered to theeffect that various pieces of evidence are relevant, admissible andmaterial.

Back to top