Case 1:12-cv-08892-KBF Document 1407 Filed 11/17/17 Page 1 of 78
`USDC SDNY
`DOCUMENT
`ELECTRONICALLY FILED
`DOC #: _________________
`DATE FILED: November 17, 2017
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`
`
`UNITED STATES DISTRICT COURT
`SOUTHERN DISTRICT OF NEW YORK
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`IN RE M/V MSC FLAMINIA
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`KATHERINE B. FORREST, District Judge:
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`12-cv-8892 (KBF)
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`OPINION & ORDER
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`On July 14, 2012, the M/V MSC FLAMINIA (the “Flaminia”) was crossing the
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`Atlantic Ocean bound for Antwerp, Belgium. The vessel had departed from New
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`Orleans, Louisiana fourteen days earlier and it was loaded with cargo. Early that
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`morning, alarms began to sound, followed shortly thereafter by an explosion. Three
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`members of the crew were killed, thousands of container cargos were destroyed, and
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`the vessel was seriously damaged. A number of lawsuits followed, seeking
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`compensation for death, bodily injury, loss of cargo, and damage to the vessel.
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`Many of the original claims have been settled, including those alleging wrongful
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`death and bodily injury. What remains are a host of claims relating to cargo losses
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`and vessel damage.
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`The Court has split the trial into three phases: a trial on causation in “Phase
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`1,” to be followed by trials establishing fault and damages. The Phase 1 bench trial
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`was conducted from September 11, 2017 through September 19, 2017, with closing
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`arguments on September 26, 2017.
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`At trial, three sets of parties presented related but materially different
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`theories of causation. All agree that the explosion occurred as a result of runaway
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`Case 1:12-cv-08892-KBF Document 1407 Filed 11/17/17 Page 2 of 78
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`auto-polymerization of 80% grade divinylbenzene (“DVB80”)1 that was contained in
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`ISO containers2 aboard the Flaminia. The manufacturer and shipper of that cargo,
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`Deltech Corporation (“Deltech”) and Stolt Tank Containers B.V. (“Stolt”),
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`respectively, assert that runaway auto-polymerization would not have occurred
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`absent the storage conditions on the dock at the New Orleans Terminal (“NOT”)
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`(where the DVB80 was stored before being loaded onto the ship) and aboard the
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`vessel. In contrast, Container Schiffahrts-GMBH & Co. KG MSC “FLAMINIA” and
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`NSB Niederelbe Schiffahrtsgesellschaft MBH & Co. KG (together, “Conti”), which
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`owned and operated the Flaminia, and MSC Mediterranean Shipping Company,
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`S.A. (“MSC”), the time-charterer, assert that the cause of the auto-polymerization
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`was Deltech’s failure to deliver fully oxygenated DVB80 to the dock at NOT. The
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`last party that presented a causation theory was Chemtura Corporation
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`(“Chemtura”), a shipper of another chemical contained in cargo aboard the vessel,
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`diphenylamine (“DPA”). Chemtura argued that in all events, the DPA was not a
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`substantial factor contributing to the conditions that caused the explosion.
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`The parties have spent an enormous amount of time litigating this case. The
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`discovery was, by any measure, extensive. Each group of parties retained experts,
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`resulting in a classic “battle of the experts.” The Court carefully studied the
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`experts’ work, listened to their testimony, and poked and prodded them with
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` 1
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` DVB is a chemical used for the synthesis of ion-exchange resins, an important component of water
`purifiers. These water purifiers create clean drinking water as well as clean water for use by nuclear
`power plants. DVB may also be used in the production of adhesives and polymers.
`2 ISO containers—sometimes referred to as “ISO tanks”—are receptacles that can be filled with
`liquid. The Court discusses the characteristics of the ISO containers further below.
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`2
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`Case 1:12-cv-08892-KBF Document 1407 Filed 11/17/17 Page 3 of 78
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`questions. According to the Stolt/Deltech experts, the DVB80 was fully oxygenated
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`and only excessive heat conditions caused the auto-polymerization. The Conti/MSC
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`experts argue the opposite.
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`It is clear that neither the experts nor the Court will ever be absolutely
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`certain as to what caused the DVB80 to auto-polymerize and what ignited the
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`explosion. But this is a civil case—one in which the standard of proof is not
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`certainty, but a “preponderance of the evidence.” Based on that standard, the Court
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`finds that that the DVB80 was delivered to NOT in an appropriately oxygenated
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`state. However, the choice of NOT as the port of embarkation was a fatal one.
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`Together, the extended, stagnant storage under a hot sun at NOT, followed by high
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`ambient temperatures in the hold of the Flaminia, caused the DVB80 to auto-
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`polymerize. The Court also finds that the heated DPA, which had been placed in
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`containers adjacent to those filled with DVB80 at NOT and in the hold of the vessel,
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`was a substantial contributing factor in the auto-polymerization.
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`As the auto-polymerization progressed aboard the Flaminia, a white cloud of
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`venting DVB80 gases triggered alarms. The crew missed a final opportunity to
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`prevent the explosion when, lacking information as to the conditions in the hold and
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`instructions as to how much carbon dioxide (“CO2”) to release, it failed to inert the
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`venting gases. The reasonable crew response to what crew members believed was
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`an ongoing fire then created a spark that triggered the explosion.
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`The Court’s findings of fact and conclusions of law are set forth below.
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`3
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`I. THE PARTIES
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`Dozens of parties have, at various points, been involved in these proceedings.
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`For purposes of this Phase 1 causation trial, the notable players consist of the
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`following groups: first, the “ship interests,” Conti and MSC; second, the parties that
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`manufactured and shipped the three ISO containers of DVB80, Deltech and Stolt;
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`and third, the companies connected to ten ISO containers of DPA. This last group is
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`comprised of Rubicon LLC (“Rubicon”), the manufacturer; Chemtura, the owner and
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`shipper; and Bulkhaul Ltd. and Bulkhaul (USA) Inc. (together, “Bulkhaul”), which
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`provided the ISO containers in which the DPA was stored. (Stipulated Facts at 9,
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`¶ 66.)3
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`II. THE BATTLE OF THE EXPERTS
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`A total of 54 witnesses testified at trial: 35 by deposition designation; 13 by
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`trial declaration, live cross-examination, and live redirect; and six by trial
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`declaration only (because the parties waived cross-examination (see Trial Tr. at
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`101–03)).4 The Court also received into evidence over one hundred documents and a
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`videotape.
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` 3
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` Several other companies produced other chemicals being transported on the Flaminia—by the time
`of trial, these materials had been absolved of blame. Monsanto Company (“Monsanto”) was the
`manufacturer of glyphosate intermediate (“GI”) carried in 30 twenty-foot dry van containers aboard
`the vessel on July 14, 2012. (Stipulated Facts at 12, ¶ 1.) BASF Corporation (“BASF”) was the
`manufacturer of four ISO container shipments of dimethylethanolamine (“DMEA”) carried aboard
`the vessel on July 14, 2012. (Stipulated Facts at 13, ¶ 3.) Suttons International, Ltd. and Suttons
`International (N.A.) Inc. (collectively “Suttons”) were the providers of the ISO containers utilized for
`carriage of the Flaminia shipments of DMEA aboard the vessel. (Stipulated Facts at 14, ¶ 13.)
`4 This last group includes Leon Nell (ECF No. 1292), Gerry Walsh (ECF Nos. 1294, 1334), Robert
`Cohen (ECF No. 1298), Ian Wadsworth (ECF No. 1300), Tommy Sciortino (ECF No. 1302), and David
`Hughes (ECF No. 1292).
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`4
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`A number of intelligent, articulate, and talented experts in their fields
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`testified at trial. Each of the individuals who testified as an expert was truly an
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`expert; the fact that the Court credits certain conclusions over others does not
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`suggest otherwise. Ultimately, the Court credits the testimony of the experts
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`representing Stolt and Deltech over the experts representing MSC, Conti, and/or
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`Chemtura.5 The Court was highly impressed with the credentials of the
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`Stolt/Deltech experts, as well as the engagement, rigor, and consistency with which
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`they approached their work and opinions; Stolt and Deltech’s experts were the most
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`persuasive.
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`While relatively early in this Opinion and technically complex, in order to set
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`the stage for the Court’s findings that follow and which rely heavily on the experts,
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`the Court now provides a brief overview of their work. The technical details will be
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`explained more thoroughly in the relevant sections of this Opinion.
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`A. Dr. Scott G. Davis
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`Scott G. Davis, Ph.D., testified extensively at trial. The Court was very
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`impressed by him. Dr. Davis has all the expertise a court could wish for:
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`extraordinary credentials, engagement with his assignment, and a careful,
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`forthright, and clear manner. The Court was particularly persuaded by the careful
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`scientific work that he did which reinforced many of his opinions. Dr. Davis was not
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` 5
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` Stolt proffered Anand Prabhakaran to conduct a thermal analysis of the maximum temperature the
`DVB80 could have reached in the ISO containers. While the Court found his analyses interesting,
`and supportive of heat contributions from the DPA and solar radiation, it ultimately does not rely on
`him. Certain of his analyses changed between his deposition and trial and while the Court credited
`his explanations, it ultimately need not delve into his analyses to reach its conclusions herein.
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`5
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`relying solely on theory—he and the company with which he is associated, GexCon
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`US, Inc. (“Gexcon”), performed modeling and testing that provide a strong,
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`independent basis for crediting his views. The Court relies heavily on his opinions.
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`He did not overreach.
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`A summary of certain of Dr. Davis’s qualifications are as follows: he holds a
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`Masters of Science and a Ph.D. in mechanical and aerospace engineering from
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`Princeton University. Dr. Davis is a registered professional engineer in California
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`and New York, a licensed engineer in Texas, and an authorized professional
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`engineer in Maryland and Pennsylvania. He is a certified fire and explosion
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`investigator with the National Association of Fire Investigators National
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`Certification Board. He has also completed a “fire cause and origin investigation”
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`training with the California Office of State Fire Marshal, hazardous waste
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`operations and emergency training in accordance with Occupational Safety and
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`Health Administration (“OSHA”) standards, and confined space entry training also
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`in accordance with OSHA. (Davis Trial Decl., ECF No. 1304, at 1, ¶¶ 3–6.) Dr.
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`Davis has authored numerous scientific and academic publications. (Id. at 1, ¶ 7.)
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`He is President and Principal Engineer at Gexcon, where he is responsible for fire
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`and explosion related assignments. (Id. at 1, ¶¶ 1, 8.) This includes post-incident
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`investigative work, worldwide training and experimentation, risk assessments, and
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`safety studies for petrochemical facilities and other industries. (Id. ¶ 8.) At Gexcon,
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`he has performed numerous explosion risk assessments, blast and venting analyses,
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`assessment of combustible dust explosions, toxic/flammable gas releases and
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`6
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`dispersion, hydrogen safety, ventilation, detector placement, and carbon monoxide
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`dispersion. (Id. at 2, ¶ 9.)
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`Dr. Davis is a member of Gexcon’s “docents group,” which delivers industrial
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`seminars all over the world on the hazards associated with gas explosions. (Id. at 2,
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`¶ 10.) He has expertise in the investigation and prevention of fires, explosions, and
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`dispersion hazards such as flammable vapors, as well as extensive experience
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`evaluating the cause, origin, and dynamics associated with fires and explosions,
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`principally as they relate to ignition, flame propagation, chemical kinetics, and fluid
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`dynamic processes associated with combustion and explosion events. (Id. at 2, ¶¶
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`11, 12.) Dr. Davis has been the lead investigator on hundreds of fire and explosion
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`incidents, including chemical and industrial facilities and equipment, dust
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`explosions, natural gas and propane explosions, above-ground storage tanks,
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`unintentional ignition including thermal runaway, and residential and commercial
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`fires. (Id. at 2, ¶ 13.) Prior to joining Gexcon, his research focused on heat and flow
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`processes in fires, chemically reacting flows, flame dynamics, and combustion
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`phenomena in high-pressure burners and reactors. (Id. at 3, ¶ 16.) As part of his
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`professional experience, he has developed large-scale experiments to understand the
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`explosion phenomena of deflagration to detonation. (Id. at 3, ¶ 17.)
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`Deltech retained Dr. Davis to conduct and lead a comprehensive scientific
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`investigation into the cause and origin of the explosion and fire that occurred
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`aboard the Flaminia on the morning of July 14, 2012. (Id. at 10, ¶ 1.) His
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`investigation and work on this case lasted over two and a half years. (Id. at 12, ¶
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`7
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`14.) As part of his work, Dr. Davis and others from Gexcon visited the Deltech
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`facility in Baton Rouge, Louisiana where the DVB80 at issue in this case was
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`manufactured and filled into ISO containers for transport. (Id. at 10, ¶ 3.) He
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`reviewed the records of DVB80 production and storage and measured the dissolved
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`oxygen saturation levels at various stages of Deltech’s DVB80 manufacturing,
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`storage, and transport process. (Id. at 10, ¶¶ 4–5.) Dr. Davis performed detailed
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`computational fluid dynamic (“CFD”) analysis of the mixing and storage of DVB80
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`in Deltech’s main cooling and storage tanks. (Id. at 10, ¶ 6.)
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`The Court found Dr. Davis’s mathematical heat transfer models particularly
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`compelling. He created and used these models to ascertain the magnitude of heat
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`transferred to the DVB80 ISO containers during the time they were stored at NOT
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`aboard the Flaminia. (Id. at 10, ¶ 7.) This analysis included evaluating the
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`combined effects of the ambient air temperature, solar radiation on the dock,
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`thermal radiation from neighboring ISO containers of heated DPA, the ambient air
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`temperature in the hold where the containers of DVB and DPA were stored (“Hold
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`4”), the impact of ventilation (or lack thereof), and the heated bunker fuel wing
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`tanks adjacent to Hold 4. (Id. at 10–11, ¶ 7.) Dr. Davis’s heat transfer model
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`allowed him to estimate the approximate time it took the DVB to begin auto-
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`polymerizing. (Id. at 11, ¶ 8.)
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`As part of his work on the case, Dr. Davis performed thermal accelerated rate
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`calorimetry tests (“ARC” tests) of DVB80 to determine the time to onset of an
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`exothermic reaction (discussed below), which indicates the onset of polymerization;
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`8
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`tests to determine the flammability characteristics of DVB80; and tests relating to
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`venting and peak temperature rise under certain conditions. (Id. at 11, ¶ 9.)
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`Further, he used advanced computational fluid analyses as well as an analytic
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`model of CFD dispersion to evaluate the effectiveness of the CO2 system, the
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`dispersion of venting DVB80 within the cargo hold, and explosion modeling. (Id. at
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`11, ¶¶ 11–12.)
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`In addition to all of this, Dr. Davis created a full-scale model to test certain
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`temperature conditions. He placed an ISO container with characteristics as similar
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`as possible to one of the ISO containers (Tank I) aboard the Flaminia, filled with
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`DVB80, and placed it within a specially built structure (the “Full-Scale Test”). The
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`Full-Scale Test allowed Dr. Davis to establish with a high and persuasive degree of
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`scientific certainty: (1) the representative UA (relating to thermal resistance) of the
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`Stolt ISO containers filled to 80% capacity with Deltech’s DVB80; and (2) the
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`minimum expected time it took to auto-polymerize, or the shelf life of Deltech’s
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`DVB80 as prepared and shipped aboard the Flaminia. (Id. at 11–12, ¶ 13.)
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`Dr. Davis’s conclusion, with which the Court agrees, is that Deltech’s DVB80
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`would not have auto-polymerized and undergone the thermal runaway reaction it
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`did on July 14, 2012, if it had not sat still in the sun at NOT, if it had not been
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`stored next to heated DPA both on the dock at NOT and in Hold 4, and if Hold 4 had
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`been properly ventilated and had not had high ambient temperatures. (Id. at 13–
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`14, ¶¶ 1–6.) In addition, even when thermal runaway had been achieved, an
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`explosion was not a foregone conclusion; additional deployment of CO2 could have
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`9
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`rendered the gas inert, and in the absence of an ignition event—a spark—no
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`explosion would have been triggered. (Id.)
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`B. Dr. Deborah Kaminski
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` The Court was also highly impressed by Deborah Kaminski, Ph.D., another
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`expert retained by Stolt and Deltech. Dr. Kaminski provided a number of opinions
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`relating to heat transfer—an area particularly important in this case, as the parties
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`are litigating whether, how, and to what extent heat transferred into or out of the
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`containers in which the DVB and DPA were stored (the “ISO containers”)
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`contributed to runaway auto-polymerization. Dr. Kaminski is another true expert,
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`with decades of relevant in-depth experience.6
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`A summary of Dr. Kaminski’s credentials are as follows: she is a Professor
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`Emerita of Mechanical Engineering at Rensselaer Polytechnic Institute (“RPI”).
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`(Kaminski Decl., ECF No. 1303, at 2, ¶ 3.) She earned her Bachelor of Science in
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`physics from RPI in 1973; her Masters of Science in Chemical Engineering from RPI
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`in 1976; and her Ph.D. in Mechanical Engineering from RPI in 1985. (Id. at 2, ¶ 4.)
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`Prior to obtaining her doctorate, she spent five years at General Electric Research
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`and Development Center, working on heat transfer. (Id. at 2, ¶ 5.) Her doctoral
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`research was on computational fluid dynamics in free convection. (Id. at 2, ¶ 6.) Dr.
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`Kaminski was the Associate Technical Editor for the Journal of Heat Transfer from
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`1998–2001, and she was named a Fellow in the American Society of Mechanical
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` 6
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` The Court was also impressed by the fact that Dr. Kaminski is not a professional testifying
`expert—this was the first case in which she provided testimony in court. (Tr. at 930:16-18.)
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`10
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`Engineers in recognition of her work in radiation heat transfer. (Id. at 3, ¶¶ 7–9.)
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`In 1995–96 she served as the Program Director of Thermal Transport and Thermal
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`Processing at the National Science Foundation. (Id. at 3, ¶ 10.) She has also co-
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`authored a book on thermal engineering, published in 2004, and has written 82
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`articles in peer-reviewed publications as well as 11 additional publications in the
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`areas of thermal engineering and heat transfer. (Id. at 3, ¶ 11.)
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`Dr. Kaminski was retained to determine the temperature history and
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`polymerization of the DVB80 containers from the time they were filled at Deltech’s
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`Baton Rouge manufacturing facility until the time the first alarm went off aboard
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`the Flaminia on July 14, 2012. She also computed the temperature of the DPA and
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`measured its contribution to heat conditions within the hold where the containers of
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`DVB80 and DPA were stored.
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`Dr. Kaminski created reliable experimental and theoretical estimations of the
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`thermal resistance of the relevant ISO containers. She then predicted the
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`temperatures of the liquid DVB80 and heated DPA while the ISO containers were
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`at NOT and examined the influence of the heated DPA on the DVB80. She
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`discussed the heat transfer that occurred at NOT—where one ISO container filled
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`with DVB80, an unstable and heat-sensitive mixture, was stored facing three
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`neighboring containers filled with heated DPA; two additional containers of DVB80
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`were on top of the stack. Her analysis determined that all of the DVB80 containers
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`were affected by solar radiation, infrared radiation, and proximity to neighboring
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`11
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`DPA containers. Her opinions in this regard were rigorous, based in evidence,
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`clearly explained, and persuasive.
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`In addition, Dr. Kaminski modeled the temperatures of the DVB80
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`containers while they were in the hold of the Flaminia for 14 days, considering a
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`number of different air temperature scenarios. She then predicted the induction
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`time for the three ISO containers of DVB80. Her conclusions agree with those of
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`Dr. Davis on which the Court relies, finding thermal runaway following from the
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`combined conditions of heat at NOT and both heat and poor ventilation in Hold 4.
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`C. Dr. Hans Fauske, D.Sc.
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`A third expert upon whom the Court relies is Dr. Hans Fauske. He was
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`retained by Deltech to testify regarding the thermal stability of DVB80. His
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`testimony was ultimately narrow—providing experimental results that allowed for
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`a mathematical calculation predicting the time necessary to achieve runaway auto-
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`polymerization. Dr. Davis was persuaded as to the reliability of these equations,
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`and so was the Court.
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`Dr. Fauske is the founder, Emeritus President, and Regent Advisor of Fauske
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`and Associates, LLC, a world leader in nuclear, industrial, and chemical processes,
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`and now a wholly-owned subsidiary of Westinghouse Electric Company. He
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`obtained a Masters in Science in Chemical Engineering from the University of
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`Minnesota in 1959 and a Doctorate of Science from the Norwegian Institute of
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`Technology in 1963. After completing his graduate education, Dr. Fauske joined the
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`staff of the Argonne National Laboratory, an entity managed by the University of
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`12
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`Chicago. In 1972, he became a Senior Chemical Engineer at the lab (the equivalent
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`of a full professor of the University of Chicago). In 1975 he was awarded the
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`University of Chicago Medal for Distinguished Performance. He has won a number
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`of awards and recognitions from organizations and academic institutions worldwide,
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`has published more than 200 scientific articles, and holds numerous patents in the
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`areas of nuclear and chemical safety.
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`
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`Dr. Fauske believes strongly in the benefits of experimental results to inform
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`his conclusions. He presented compelling testimony regarding testing that he
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`conducted for this matter. Dr. Fauske also ran a series of ARC tests, Thermal
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`Activity Monitor (“TAM”) tests, and Vent Sizing Package Calorimeter (“VSP2”)
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`testing. In his opinion, TAM tests are the most accurate means to determine the
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`shelf life of DVB80. (Fauske Decl. at 27, ¶ 79.) He was persuasive in this view.
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`Based on these experiments, Dr. Fauske was able to derive “Arrhenius equations”
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`that predict the “shelf life” (that is, the “induction time” or time to auto-
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`polymerization) of Deltech’s DVB80 as a function of its temperature. (Fauske Decl.,
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`ECF No. 1290, at 5, ¶¶ 37–38.) “Arrhenius equations” are mathematical
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`calculations that can account for chemical reactions occurring at increased
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`temperatures. (Id. at 6, ¶ 41.)
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`Dr. Fauske determined an Arrhenius equation applicable here based on
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`guidelines for the DVB published by Deltech and Dow Chemical Company (“Dow”).
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`(Id. at 6–7, ¶ 44.) Notably, the Arrhenius equations that he derived from the TAM
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`testing (assuming no headspace in the ISO container) and from the guidelines
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`provided by Deltech and Dow predicted the shelf life of the DVB80 used in the Full-
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`Scale Test conducted by Dr. Davis. In addition, based on his testing, Dr. Fauske
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`was able to conclude that the DVB80 sample he received from Deltech, which had
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`been manufactured in the same manner as that which filled the ISO containers
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`aboard the Flaminia, was adequately saturated with oxygen. According to his
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`Arrhenius equations, under normal conditions, the upper bound of the shelf life for
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`DVB80 manufactured according to the same process as that aboard the Flaminia
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`was 64.9 days. (Id. at 37, ¶ 94.) This means, under normal conditions, the DVB80
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`aboard the Flaminia should have made it safely to port in Antwerp, Belgium.
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`The Court was persuaded by Dr. Fauske that the Arrhenius equation he
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`developed allows for a determination of how long Deltech’s DVB80 would remain
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`stable at various temperatures, and provides the approximate shelf life of the
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`DVB80.
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`D. Plaintiffs’ Experts
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`With regard to the plaintiffs’ expert witnesses, the Court again notes that all
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`were impressively credentialed and deserving of the title “expert.” However, for the
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`reasons set forth here and throughout this opinion, the Court was not persuaded by
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`their testimony that Deltech did not adequately oxygenate the DVB80, or that
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`anything other than crew activity ignited the explosion.
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`Plaintiffs retained Dr. Paul Beeley, a forensic investigator who specializes in
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`fires and explosions. Dr. Beeley presented four possible sources of ignition for the
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`Flaminia fire and explosion including: a spark involving the electrical system inside
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`14
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`Hold 4; crew activity on deck; discharge of static electricity; and thermal runaway of
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`the DVB leading to auto-ignition. (Beeley Decl. ¶ 8.) At trial, though, Dr. Beeley
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`could not identify any physical evidence supporting one source of ignition over
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`another, and he did not assign a relative probability to any of the sources. (Tr. at
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`774:4–6; id. at 775:3–6; id. at 788:4–16.) Further, he did not perform an
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`independent investigation of the ship’s electrical systems, but instead relied on
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`another expert’s opinion regarding the equipment.7 As such, Dr. Beeley’s testimony
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`cannot be relied on to prove anything beyond the fact that the explosion was
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`triggered in one of at least four ways. The Court’s task in this Phase 1 trial is to
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`determine whether these possibilities can be measured—and they can.
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`Plaintiffs also retained Edward Hammersley, another fire and explosion
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`investigator and a chemistry expert, and David Robbins, a forensic investigator and
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`specialist in fires and explosions. The Court found Hammersley and Robbins
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`similarly credible, but was still unpersuaded that auto-polymerization occurred as a
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`result of a flaw in Deltech and/or Stolt’s manufacturing and/or transport processes.8
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`Hammersley’s declaration focused on testing of samples of materials from
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`Hold 4 of the Flaminia, which, he concluded, demonstrated that the DVB shipments
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`had undergone auto-polymerization that resulted in venting of DVB80 polymer.
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`(Hammersley Decl. at ¶¶ 8, 44–49, 74–75, 99–100.) He also determined that no
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` 7
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` Dr. Beeley relied on David Robbins, whose testimony is discussed below.
`8 Both Hammersley’s and Robbins’s declarations focused, in large part, on the fact that the explosion
`derived from auto-polymerization that occurred in the tanks of DVB80. The facts that auto-
`polymerization had occurred and that the DVB80 exploded were no longer in dispute at the time of
`the Phase 1 trial.
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`Case 1:12-cv-08892-KBF Document 1407 Filed 11/17/17 Page 16 of 78
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`other cargo was involved in the explosion, and that there was not a fire in the hold
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`prior to the release of CO2. (Id. at ¶¶ 9–10.) With regard to the induction time to
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`auto-polymerization, while Hammersley testified that Dr. Fauske’s Arrhenius
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`equations resulted in a “prediction contrary to scientific expectation,” he was not
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`persuasive in this view. (Hammersley Decl. at ¶¶ 113, 116, 127.) And at trial,
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`Hammersley conceded that Dr. Fauske’s equations set forth a conservative view of
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`temperature conditions (that is, a view favorable to the plaintiffs’ interests). (Tr. at
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`1397:4–1400:14.) Hammersley did not perform any TAM tests of his own. (Id. at
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`1405:9–10.)
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`
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`Robbins similarly concluded that the fire and explosion were caused by the
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`DVB80’s auto-polymerization and ignition due to a discharge of static electricity.
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`He analyzed previous incidents involving auto-polymerized DVB as well as the
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`preferred and calculated temperature and storage conditions for the Flaminia
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`DVB80. Like Hammersley, Robbins ruled out alternative sources of a fire, such as
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`other cargo. (Robbins Decl. ¶ 172.) Overall, the Court was not persuaded that
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`Hammersley’s and Robbins’s explanations supported a theory that auto-
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`polymerization occurred due to a flaw in Stolt and Deltech’s processes.
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`
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`Finally, plaintiffs retained Dr. Brian Ott, a chemical engineer who opined
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`that it was “more likely than not that the subject DVB shipments were not fully
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`saturated with oxygen when they were delivered” to NOT. (Ott Decl. ¶ 17.) The
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`Court was not persuaded. Though Dr. Ott opined that the liquid DVB80 was not
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`sufficiently oxygenated, he neither modeled its mixing within the storage tank nor
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`tested the oxygen saturation levels of DVB during Deltech’s manufacturing process.
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`The Court is also unpersuaded by Dr. Ott’s calculation of the relevant UA values;
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`Dr. Davis’s values were based on direct measurement through his Full-Scale Test,
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`while Dr. Ott’s were reverse-engineered and based on an incorrect assumption
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`regarding the oxygen saturation in one of the tanks used during manufacturing.
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`Additionally, his model failed to incorporate the influence of solar radiation and
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`DPA on the containers while they sat on the dock.
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`
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`Further, Dr. Ott critiqued Dr. Davis’s computation of what is referred to as
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`the cumulative Fraction of Inhibitor Life Consumed (“FILC”) measure. Dr. Ott
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`contends that because Dr. Davis’s calculations depend on precise knowledge of the
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`oxygen concentration and temperature of the subject DVB shipments—which is
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`unattainable—they are necessarily unreliable. (Ott Decl. at ¶¶ 179–80, 186.) This
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`position is unpersuasive. While there is uncertainty, that does not address Dr.
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`Davis’s careful, reasoned conclusions based on certain known facts, principles,
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`modeling, and experiments. In addition, Dr. Ott’s model of the DVB’s shelf life is
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`itself flawed. It derived a UA value based on incorrect assumptions, used an
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`unrealistic temperature contribution from the DPA on the ambient air, and failed to
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`account for diffusion from the headspace. (Davis Decl. at 100, ¶ 3.)
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`
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`The Court also viewed Dr. Ott as overreaching in his answers at trial. For
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`instance, he posited assumptions that, if credited, (1) would support a scenario in
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`which most, if not all, of Deltech’s DVB shipments are so unstable that venting and
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`even explosions should occur frequently on trans-Atlantic voyages (and they do not);
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`and (2) predicted auto-polymerization of the Flaminia shipments almost a week
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`before it actually occurred. Furthermore, Court found Dr. Ott unnecessarily
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`argumentative, distracting from any persuasive force in his arguments.
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`E. Chemtura’s Expert
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`
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`Chemtura presented one witness at trial, Douglas Carpenter, a mechanical
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`engineer who was retained to determine what DPA’s role might have been in the
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`fire and explosion. The Court found Carpenter credible but was not ultimately
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`persuaded by his views. He principally opined that the DPA did not make a
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`“thermal contribution” (that is, contribute to heat) in the adjacent DVB containers.
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`Carpenter opined that the source of heat for the DVB containers may have been re-
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`radiation from other cargo exposed to solar radiation or the pavement; notabl