Graham v. I.M.O. Industries Inc.

16 Pa. D. & C.4th 492, 1992 Pa. Dist. & Cnty. Dec. LEXIS 154
CourtPennsylvania Court of Common Pleas, Alleghany County
DecidedOctober 15, 1992
Docketno. GD 91-3994
StatusPublished
Cited by3 cases

This text of 16 Pa. D. & C.4th 492 (Graham v. I.M.O. Industries Inc.) is published on Counsel Stack Legal Research, covering Pennsylvania Court of Common Pleas, Alleghany County primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Graham v. I.M.O. Industries Inc., 16 Pa. D. & C.4th 492, 1992 Pa. Dist. & Cnty. Dec. LEXIS 154 (Pa. Super. Ct. 1992).

Opinion

WETTICK, J.,

These lawsuits arise out of an accident that occurred in April 1989 at a plant operated by LTV Steel Corp. Plaintiffs’ complaints allege that plaintiffs were injured when a centrifugal blower exhauster, known as the no. 5 exhauster, malfunctioned, caught fire and exploded. Defendant I.M.O. Industries Inc., is the successor-in-interest to Delaval Steam Turbine Co., which designed, built and sold the no. 5 exhauster apparently during the period from 1952 to 1954. Defendant General Electric Co. allegedly inspected, cleaned, repaired and tested component parts of this exhauster at its place of business in 1985.

Plaintiffs scheduled the depositions of corporate representatives of both defendants pursuant to Rule 4007.1(e) of the Pennsylvania Rules of Civil Procedure. At both depositions, plaintiffs’ counsel asked the designated corporate representatives to express opinions concerning the cause of the 1989 accident. At both depositions, counsel for the party that had produced the witness objected. Plaintiffs’ motion to compel these witnesses to provide this opinion testimony is the subject of this opinion and order of court.

IMO designated Richard Salzmann, the manager of product engineering for the Delaval Steam Turbine Di[494]*494vision of IMO. IMO relies on the following facts to support its objections.

Mr. Salzmann was not employed by IMO when the exhauster was designed, manufactured, sold or installed. The exhauster has not been in IMO’s possession or control since its installation in the early 1950s. Mr. Salzmann was never involved in the maintenance of this exhauster during its 35 years of operation prior to the accident. He will not be called by IMO as an expert witness at trial. He has never seen the exhauster either before or after the accident. He was not asked to and never investigated the cause of the accident. He never discussed the cause of the accident with anyone in his engineering department. To the best of his knowledge, IMO has not determined the cause of the accident. He has never been asked to assist IMO in determining the cause of the accident. He has never expressed an opinion as to the cause of the accident. He has never prepared any report, oral or written, concerning the cause of the accident. To the best of his knowledge, there has never been any investigation by IMO concerning the failure of the no. 5 exhauster.

Mr. Salzmann’s sole source of information concerning the nature of the accident and the history of the no. 5 exhauster comes from documents that IMO’s counsel had obtained from IMO and LTV.1 Mr. Salzmann also met with IMO’s counsel and a specially retained consultant after he was selected by IMO to testify as its corporate [495]*495representative. At this meeting, Mr. Salzmann would have learned of the opinions of this expert witness, if any were expressed. At this meeting, Mr. Salzmann was not asked to give any opinion as to the cause of the accident.

At his deposition, Mr. Salzmann testified that he is capable of giving an opinion as to the cause of the explosion. His opinion would be based entirely on the information in the previously described documents that he reviewed. He was not asked about his ability to express any opinions concerning the accident based primarily on his experiences with IMO/Delaval products.

General Electric designated Robert L. Coen, a mechanical projects manager at its West Mifflin Branch. Mr. Coen had no recollection as to whether General Electric had repaired a Delaval rotor at its West Mifflin facility. However, from a review of the job orders, he could determine that General Electric repaired two rotor assemblies in July 1985 and that the rotors could have possibly been from the no. 5 exhauster. He described the work that was done for each job order. He described the testing that was conducted and the test results. He answered questions concerning limitations on the testing that was performed and expressed opinions as to whether it would have been prudent to test the rotor in a different fashion. His testimony was based on the information in the job orders and his general knowledge of the services that General Electric performs.

Upon instructions of counsel, he was unwilling to express opinions concerning the design of the rotor (General Electric had nothing to do with its design) or possible causes of the rotor’s malfunction that were unrelated to [496]*496any services that General Electric provided or advice that it gave LTV.

Plaintiffs’ discovery requests are governed by my opinions in Williams v. South Hills Health System, 24 D.&C.3d 206 (1981), and Feyes v. Gehl, 134 Pitts. L.J. 55 (1985).2 In the Williams case, plaintiffs deposed a physician who was in charge of emergency services at the defendant hospital at the time of the deposition but who was not a hospital employee at the time of the alleged malpractice. This witness was asked to express medical opinions relevant to the malpractice claim on the basis of his experience in emergency care procedures. Defendant’s counsel instructed him not to testify as to these matters on the ground that any opinions that he expressed were not based on any facts within his personal knowledge but rather on information gained through his medical study and general experience. In the Feyes case, plaintiffs deposed a treating physician who was a defendant in a medical malpractice claim. The defendant physician refused to answer questions involving medical opinions that had no relationship to his treatment of the plaintiff-patient.

The Williams and Feyes opinions recognize that our discovery rules permit discovery seeking information involving an opinion or a contention that relates to a fact or the application of law to fact. Pa.R.C.P. 4003.1(c). Both opinions also recognize that Rule 4003.5’s protec[497]*497tions from discovery of opinions held by an expert apply only to specially retained experts. However, in both opinions I upheld the objections to discovery seeking the expert opinions of witnesses not protected by Rule 4003.5 where the expert’s opinion was not based in any way on his involvement with the subject matter of the litigation. The foundation for my ruling in Williams v. South Hills Health System was a qualified common law privilege that protects experts who have no personal information concerning the subject matter of the litigation. The foundation for my ruling in Feyes v. Gehl was Rule 4011’s prohibition against discovery that will cause unreasonable annoyance, burden and expense.

In the present case, Mr. Salzmann and Mr. Coen do not have any personal information that would assist them in forming an opinion as to the causes of the explosion. Their opinions would be based solely on information in documents prepared by others. Any experts whom plaintiffs retain will be in the same position as these witnesses to offer factual and opinion testimony concerning the causes of the explosion. Consequently, if Mr. Salzmann and Mr. Coen were not employees of the defendant corporations, plaintiffs would clearly not be allowed to depose these witnesses or any other experts who have no relevant factual information for purposes of having them express opinions as to the causes of the accident based on facts obtained from a review of documents which they did not prepare and their expertise gained through training and experience.

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Bluebook (online)
16 Pa. D. & C.4th 492, 1992 Pa. Dist. & Cnty. Dec. LEXIS 154, Counsel Stack Legal Research, https://law.counselstack.com/opinion/graham-v-imo-industries-inc-pactcomplallegh-1992.