Court: United States District Court for the Southern District of Georgia, Augusta Division
Case Name: Evanston Ins. Co. v. Xytex Tissue Servs., LLC
Citation: 2019 U.S. Dist. LEXIS 51668
The defendant was a company that stored biological material using cryogenic storage freezers. The freezers were cooled using a liquid nitrogen delivery system. If the pressure in the delivery system exceeded the permissible limits, the relief valve opened and released liquid nitrogen, which then vaporized to nitrogen gas, to release the pressure on the system.
The incident in question involved a liquid nitrogen discharge in the defendant’s warehouse. Vaporization and accumulation of nitrogen caused the oxygen level to drop setting off the oxygen sensor alarms. A dense fog set off the smoke detectors, and fire alarms sounded in the warehouse. During this incident, a warehouse deputy collapsed leading to his death.
The kin of the deceased filed a state court tort claim and subsequently moved to exclude the testimony of the defendant’s chemistry expert.
The Chemistry Expert
The defendant’s chemistry expert was an associate professor at Augusta University’s Department of Chemistry and Physics. He held a bachelor’s degree, master’s degree, and a doctorate in chemistry. The chemistry expert testified that liquid nitrogen is not an irritant, a contaminant, nor a ‘hazardous or toxic material’. The chemistry expert also attempted to opine on the general interpretation of these terms in the insurance industry. The plaintiff called for either exclusion of the testimony in its entirety or alternatively, exclusion of the portion where he proffered opinion interpreting insurance contract.
The court noted that the chemistry expert witness was qualified to testify on relevant issues concerning chemical terms and their meanings. The court also noted that the chemistry expert’s methodology, his expertise in the field, and his involvement with liquid nitrogen throughout his career rendered him sufficiently reliable to come to his expert opinion according to the standard set by Daubert.
However, he could not be considered an expert in insurance matters, and thus could not opine on the plaintiff’s duty to defend or indemnify. As such, the court excluded the chemistry expert’s testimony to the extent that he commented on the plaintiff’s duty to defend or indemnify, noting that “an expert may not merely tell the jury what result to reach,'” citing N. Am. Specialty Ins. Co. v. Wells, No. CV 412-146, 2013 U.S. Dist. LEXIS 117573, 2013 WL 4482455, at *2 (S.D. Ga. Aug. 19, 2013) (quoting Montgomery v. Aetna Cas. & Sur. Co., 898 F.2d 1537, 1541 (11th Cir. 1990)).
The court held that the testimony of the chemistry expert witness was reliable to the extent that he opined on the chemistry of liquid nitrogen and hazardous materials. He was not, however, qualified to offer an opinion or interpretation of the insurance contract.