Civil Practice – Evidence – Expert Opinion – Thought Experiment – Tort/Negligence – Contract – Separate Duty – Damages

Severn Peanut Co. v. Industrial Fumigant Co. (Lawyers Weekly No. 14-02-0257, 11 pp.) (Terrence Boyle, J.) 2:11-cv-00014; E.D.N.C.

Holding: Even though plaintiffs’ experts have not conducted physical experiments, they have conducted thought experiments, a type of testing recognized by the authoritative NFP A 9 21: Guide for Fire & Explosion Investigations.

The court denies defendants’ motion to exclude plaintiffs’ experts. Defendants’ motion for summary judgment is granted as to plaintiffs’ breach of contract claim but denied as to plaintiffs’ tort claim.

Defendant Industrial Fumigant Co. (IFC) fumigated plaintiff’s peanut storage dome. A week later, smoke was seen coming from the dome. Despite fire suppression efforts, there was an explosion 25 days after fumigation. The explosion caused severe damage to the dome and the peanuts inside it.

Plaintiffs’ experts point to actual evidence to show a scientific foundation for their opinion that piled aluminum phosphide tablets will ignite without the introduction of liquid water. Such evidence includes, but is not limited, to the sheer number of Fumitoxin tablets distributed through a small opening, a photograph of piled tablets, other expert testimony, the applicators manual and label warnings, and potential gaps in eyewitnesses’ testimony.

Without determining whether or not the expert testimony at issue on the question of piling is correct, the court finds that it does have a sufficient scientific foundation to be reliable. Further, as the evidence relates to the cause of the fire, it is relevant and would be helpful to the jury.

NFP A 9 21: Guide for Fire & Explosion Investigations (NFP A 921) is considered authoritative in the field of fire investigations.

Testing of a hypothesis may take many different forms including cognitive experiments. NFPA 921 § 4.3.6

Plaintiffs have demonstrated that phosphine gas (produced by aluminum phosphide tablets) is a recognized fire hazard in both scientific literature and in the fumigation industry. Various labels required by the EPA contain clear warnings and explanations of the risk of ignition from the piling of tablets. Further, the experts have pointed to general academic acceptance of the theory that the piling of the tablets can cause ignition.

The lack of physical testing conducted by the experts themselves is not fatal to plaintiffs’ attempt to introduce their testimony. The NFP A 921 states, “A hypothesis can be tested either physically by conducting experiments or analytically by applying scientific principles in thought experiments.” NFPA 921 § 4.3.6.

Defendants have pointed to no controlling case law on point that mandates the exclusion of the experts’ testimony because of their lack of testing.

As plaintiffs have demonstrated that there is a valid scientific foundation for their experts’ testimony, defendants’ motion to exclude the testimony of Rich and Schumacher as to their piling and ignition theories is denied.

Even though the parties’ contract imposed the same duties on defendants as the duties imposed by public safety statutes (the Federal Insecticide, Fungicide, and Rodenticide Act and the N.C Pesticide Law), defendants’ statutory duties are independent of their contractual duties. The fact that the pesticide application agreement restates defendants’ obligation does not nullify or subsume the duties that existed independently of the contract. The contract provisions do not eliminate the negligence remedies available to plaintiffs in the event defendants’ statutory duties are breached.

Where the parties’ contract says defendants would not be liable for damages to plaintiff’s property, product, equipment, downtime, or loss of business, all of plaintiffs’ damages are barred by the contract, and their breach of contract claim must fail.

However, the damage exclusions in the pesticide application agreement do not bar recovery for plaintiffs’ negligence claims.

Finally, there is evidence of a genuine factual dispute as to whether defendant Rollins exercised the requisite control over IFC to hold Rollins liable for the acts or omissions of IFC. The court denies defendants’ motion for summary judgment in favor of Rollins on the grounds that the corporate veil cannot be pierced.

Defendants’ motion for summary judgment is granted in part and denied in part.