Opinion
CV-20-08261-PCT-MTM
10-27-2022
PURE Insurance Company, Plaintiff, v. Clawfoot Supply LLC, et al., Defendants.
ORDER
Honorable Michael T. Morrissey United States Magistrate Judge
Pending before the Court is Defendant Clawfoot Supply, LLC's Motion for Summary Judgment on the issue of causation (doc. 54). The Court has considered the motion, response (doc. 68), and reply thereto (doc. 71), and the corresponding separate statements of facts and evidence (docs. 55, 69, 70). For the following reasons, Defendant Clawfoot Supply, LLC's Motion for Summary Judgment is denied.
I. Background
Plaintiff Pure Insurance Company (“Pure Insurance”) is the insurance carrier for Stephen and Julia Zastrow. Doc. 52-1 at 3. In 2018, the Zastrow's remodeled their home in Flagstaff and installed a new faucet valve (the “valve”) in their guest bathroom. Doc. 52-1 at 10-11. The valve was sold by Defendant Clawfoot Supply, LLC (“Clawfoot Supply”). Doc. 52-1 at 4, 13-14. After the valve's installation, a neighbor discovered a leak coming from the Zastrow's home. Doc. 52-1 at 13-15. It was later determined the leak originated from the valve in the guest bathroom. Doc. 52-1 at 13-15. The Zastrow's home sustained damages due to the water loss. Doc. 52-1 at 3. Plaintiff Pure Insurance paid the Zastrow's claim and sought subrogation from Defendant Clawfoot Supply asserting claims of strict liability, negligence, breach of express warranties, and breach of implied warranties. Doc. 1-1 at 5-8.
Defendant Clawfoot Supply moved to exclude the opinions of Plaintiff Pure Insurance's expert, David Bolding, see Defendant's Motion to Exclude Plaintiff's Expert David Bolding's Opinions (doc. 52) and Defendant's Motion to Exclude Plaintiff's Untimely Expert Opinions (doc. 51), which this Court denied. Doc. 73. This Court admitted Bolding's causation opinions, including his opinion on the dezincification of the valve. Doc. 73.
Defendant Clawfoot Supply now moves for summary judgment on the issue of causation. Doc. 54. Defendant Clawfoot Supply contends Plaintiff's expert's opinions, even if admitted, “cannot establish that the water loss in the Zastrow's home was caused by Defendant's valve, and Plaintiff therefore cannot carry its burden of proving causation.” Doc. 54 at 4.
II. Legal Standards
Summary judgment is appropriate when there is no genuine dispute as to any material fact and, viewing those facts in a light most favorable to the nonmoving party, the movant is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(a). Summary judgment may also be entered “against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial.” Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). A fact is material if it might affect the outcome of the case, and a dispute is genuine if a reasonable jury could find for the nonmoving party based on the competing evidence. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).
Causation is a required element of each of Plaintiff Pure Insurance's claims. See Jimenez v. Sears, Roebuck & Co., 183 Ariz. 399, 402 (Ariz. 1995) (“A prima facie case of strict products liability is established by showing that when the product left the defendant's control, it was in a defective condition that made it unreasonably dangerous and the defect was a proximate cause of plaintiff's injuries.); Gomulka v. Yavapai Mach. & Auto Parts, Inc., 155 Ariz. 239, 243 (Ariz.Ct.App. 1987) (holding that in order to prove negligence, plaintiff must prove all elements under a strict liability theory, plus knowledge); ThermoLife Int'l, LLC v. MusclePharm Corp., No. 1 CA-CV 20-0209, 2021 WL 1626497, at *4 (Ariz.Ct.App. Apr. 27, 2021) (holding causation is a required element of a breach of warranty claim).
The admission of Bolding's expert opinions does not necessarily mean that the evidence is sufficient to support the causation element of Plaintiff's claims. See Stilwell v. Smith & Nephew, Inc., 482 F.3d 1187, 1195 (9th Cir. 2007). Even where scientific evidence “meets the standards of Rule 702,” summary judgment may be an “appropriate safeguard.” Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 596 (1993). Proof of causation must be such as to suggest probability, rather than mere possibility. See Robertson v. Sixpence Inns of Am., Inc., 163 Ariz. 539, 546 (Ariz. 1990). However, as this Court noted in its prior Order, see Doc. 73 at 4, “[v]igorous cross-examination, presentation of contrary evidence, and careful instruction on the burden of proof are the traditional and appropriate means of attacking shaky but admissible evidence.” Daubert, 509 U.S. at 596.
III. Discussion
Defendant first argues that Bolding “abandoned” the copper-rich brass theory at his deposition in favor of the theory of dezincification. Doc. 54 at 2. The Court disagreed with this notion in its Order ruling on Defendant's Motion to Exclude Plaintiff's Expert David Bolding's Opinions (doc. 52) and Defendant's Motion to Exclude Plaintiff's Untimely Expert Opinions (doc. 51).
Defendant next argues Bolding's expert opinion regarding the failure of the valve due to “copper-rich brass” and/or “dezincification” is insufficient to prevail on causation. Doc. 54 at. 5-6. Defendant argues Bolding's opinion is insufficient to establish causation because Bolding failed to support his opinion with reference to studies or literature and failed to conduct adequate testing. Doc. 54 at 5. The Court disagrees.
Bolding contends the valve failed due to “improper alloy constituents which weakened the connection.” Doc. 51-1 at 5. Bolding argues that the type of brass used (naval brass) was not appropriate for “use in a home, [such as the Zastrow's], using treated or potable water.” Doc. 51-1 at 41. Bolding explained in his supplemental disclosure statement and at deposition, that naval brass, which contains a high content of zinc, is susceptible to dezincification when in contact with potable water. Doc. 51-1 at 41; Doc. 51-1 at 51-55. He further explained that the excessive copper content (which he observed during his visual examination) was a sign of the dezincification because as the zinc seeps out of the brass, it causes the copper content to rise in response to the alloy losing zinc. Doc. 51-1 at 51-55.
Bolding testified that based on his experience examining failed plumbing components, there are three common elements to plumbing component failure as the result of dezincification: (1) “contact with potable water”; (2) “whitish residue and/or buildup on the exterior of the plumbing component, which is [one piece of evidence] of dezincification”; and (3) “copper-rich failure surface areas or adjacent areas, generally, they're in the failure surface, which are areas where that zinc has been removed from creating weaker component and subsequent failure.” Doc. 59-1 at 45:23-25, 46:1-8; 18:2325, 19:1-2. Bolding noted that all three indicators were present in this case. Doc. 59-1 at 45:5-25; 47:1-5; Doc. 51-1 at 3-6, 41.
Bolding's dezincification opinion was further supported by the results from the experts' joint zoom metallurgical laboratory examination conducted on November 16, 2021. Doc. 70 at 3, ¶¶ 10, 15; 6, ¶ 41; Doc. 55-1 at 46:4-13, 50-51. Based on a “handheld XRF” exam, it was determined the valve was composed of 60.5% copper, 38.4% zinc, and .6% tin. Doc. 55-1 at 50-51. Bolding explained that “high zinc percentage brass alloys, generally over 15 to 20 percent [such as the valve in question] are subject to dezincification when in contact with potable water.” Doc. 70-1 at 40:1-11. Bolding supported this opinion with reference to “research documents and manufacturer's literature,” which indicate that “more than 15% zinc in brass alloys in contact with potable water . . . raises the susceptibility of that brass alloy to dezincification” and ultimate failure. Doc. 59-1 at 48:19-25.
Bolding also noted “whitish areas” on the valve as evidence of zinc seeping out of the brass material. Doc. 70-1 at 23. Bolding's opinion is supported by photos of the valve (included in the Defense expert's report) which show a white residue. Doc. 70-1 at 66-69.
Although Bolding did not conduct additional metallurgical testing before he issued his report, he participated in the joint zoom metallurgical laboratory examination, reviewed the results, and filed a supplemental disclosure statement that reaffirmed the opinions he expressed in his report and further noted that, as he suspected, the valve “failed due to improper alloy constituents” because the type of brass used was not appropriate for use in a home with potable water. Doc. 70-1 at 62. Additionally, although it is unclear what research materials Bolding relied on in reaching his opinion, Plaintiff Pure Insurance has nevertheless presented “probable facts” from which a jury could reasonably conclude Defendant's valve caused the water damage in the Zastrow's home. See Robertson, 163 Ariz. at 546 (to survive summary judgment on the issue of causation, a “[p]laintiff need only present probable facts from which the causal relationship reasonably may be inferred”); Barrett v. Harris, 207 Ariz. 374, 378 (Ariz.Ct.App. 2004) (“Causation is generally a question of fact for the jury unless reasonable persons could not conclude that a plaintiff had proved this element.”). Defendant may address at trial any potential issues with Plaintiff's evidence. See Daubert, 509 U.S. at 596.
Accordingly, Defendant Clawfoot Supply's Motion for Summary Judgment is denied.
IT IS ORDERED as follows:
1. Defendant Clawfoot Supply, LLC's Motion for Summary Judgment (doc. 54) is denied.