United States District Court, W.D. Washington, Seattle
ORDER DENYING MOTION FOR SUMMARY JUDGMENT AND SANCTIONS
MARSHA J. PECHMAN, District Judge.
This motion is before the Court on Defendant's motion for summary judgment and sanctions. (Dkt. No. 61.) The Court considered the motion, all responsive briefing, and all related documents. The motion for summary judgment and sanctions is DENIED.
Plaintiff Ramgen Power Systems, LLC ("Ramgen") is suing Defendant Agilis Engineering, Inc. ("Agilis") for breach of contract, violations of the Uniform Commercial Code ("UCC"), breach of warranty, and professional negligence. (Dkt. No. 19 at 12-13.) Ramgen develops supersonic shockwave compressors and gas turbine power generation systems and is under contract with the United States Department of Energy to develop a supersonic shockwavebased carbon dioxide compressor and gas turbine power generation system. (Id. at 4.) Ramgen contracted with Agilis to design, manufacture, test, deliver, install, and calibrate a supersonic, shockwave based, low-pressure carbon dioxide compressor rig ("the Rig"). (Id. at 1.)
Ramgen alleges, despite warranting its services would be performed and the Rig would be delivered in conformity with the highest standards of quality and professionalism in the engineering and design industry, Agilis failed to properly perform its duties required by the contract and was negligent in designing the Rig. (Id. at 2.) On May 10, 2012, during the first fullspeed operational test with the Rig, Ramgen alleges the Rig suffered a catastrophic failure that left it inoperable. (Dkt. No. 19 at 9.)
Agilis asks the Court to enter summary judgment in its favor on all claims and strike all of Ramgen's pleadings, or alternatively, for the Court to award evidentiary sanctions for spoliation against Ramgen. (Dkt. No. 61 at 1.) Agilis contends the superseding and proximate cause of the Rig's failure was Ramgen continuing to operate the Rig after it made noises during a test run, causing the "rub event" which damaged the Rig. (Id. at 17.) Agilis further asserts Ramgen failed to mitigate damages by continuing to run the Rig after it heard noises. (Id. at 19.) Finally, Agilis asserts Ramgen spoliated evidence by detaching the Rig's nosecone after the rub event, "making it impossible for Agilis to determine what damage the nosecone suffered and to derive further evidence as to the cause of the damage to the Rig." (Id. at 22.)
Ramgen contends it properly operated the Rig, asserting noises heard during the test run were due to an unrelated "surge event" which the Rig was designed to withstand and which did not impact or cause the rub event. (Dkt. No. 70 at 13.) Instead, Ramgen alleges the catastrophic rub event was caused by a faulty design by Agilis which left the Rig "fundamentally defective and destined to fail." (Id. at 14.) Ramgen claims it had no way of knowing of the defect before running the Rig because it was given an inaccurate diagram (the "Campbell diagram") by Agilis. (Dkt. No. 72 at 5.) Ramgen contends it did not spoliate evidence or prevent Agilis from inspecting the Rig by removing the nosecone, but instead offered Agilis representatives the opportunity to see the Rig before disassembling it, and when they declined the travel, Ramgen arranged for Agilis to participate via video conference. (Dkt. No. 72 at 6.) Ramgen further notes it sent, at Agilis's request, the seal of the nosecone to Agilis and maintains the nosecone at its facility. (Id. at 7.)
Ramgen further notes Agilis's motion for summary judgment is based entirely on the declaration of Paul Gardner, which it asserts should be stricken for lack of personal knowledge. (Dkt. No. 70 at 17.) Ramgen also contends the Gardner declaration is replete with "incomprehensible assertions, unsupported allegations, and bald conclusions." (Id. at 21.) It notes Gardner is Agilis's corporate representative and its Rule 30(b)(6) declarant. (Id. at 18.) Agilis responds arguing Gardner is an expert, and as such may rely on information provided to him in providing expert testimony. (Dkt. No. 74 at 7.) Agilis goes on to argue the opinion of Dr. Shen, which Ramgen relies on, should be stricken because it is "solely based on his alleged experience." (Id. at 10.)
I. Summary Judgment Standard
Summary judgment is warranted if no material issue of fact exists for trial. Warren v. City of Carlsbad , 58 F.3d 439, 441 (9th Cir. 1995), cert. denied, 516 U.S. 1171 (1996). The underlying facts are viewed in the light most favorable to the party opposing the motion. Matsushita Elec. Indus. Co. v. Zenith Radio Corp. , 475 U.S. 574, 587 (1986). "Summary judgment will not lie if... the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Anderson v. Liberty Lobby, Inc. , 477 U.S. 242, 248 (1986). The party moving for summary judgment has the burden to show initially the absence of a genuine issue concerning any material fact. Adickes v. S.H. Kress & Co. , 398 U.S. 144, 159 (1970). If the moving party makes this showing, the burden shifts to the nonmoving party to establish the existence of an issue of fact regarding 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, 323-24 (1986). To discharge this burden, the nonmoving party cannot rely on its pleadings, but instead must have evidence showing that there is a genuine issue for trial. Id. at 324.
II. Declaration of Paul Gardner
Agilis contends the Declaration of Paul Gardner is expert testimony, and as such, is properly predicated on facts of which he has no personal knowledge. (Dkt. No. 74 at 7.) "At summary judgment, an expert declaration must meet two tests: (1) the opinion expressed must be admissible under Federal Rules of Evidence 702 and 703, and (2) the declaration must contain facts that would be admissible in evidence' and show that the affiant or declarant is competent to testify on the matters stated.'" Lopez v. Contra Costa Reg'l Med. Ctr., 2014 U.S. Dist. LEXIS 27663, *24 (N.D. Cal. Feb. 28, 2014), Fed.R.Civ.P. 56(c)(4). Agilis is correct that under Federal Rule of Evidence 703, an expert witness "is permitted wide latitude to offer opinions, including those that are not based on firsthand knowledge or observation." Daubert v. Merrell Dow Pharms. , 509 U.S. 579, 592 (1993). However, "to the extent that [an expert's] report simply recites facts that constitute inadmissible hearsay, those sections of the report are barred." McDevitt v. Guenther , 522 F.Supp.2d 1272, 1294 (D. Haw. 2007). The statements of fact in Gardner's declaration are admittedly made without personal knowledge, and are supported only by exhibits which are largely unexplained and unintelligible graphs and technical ...