United States District Court, S.D. West Virginia, Charleston Division
MEMORANDUM OPINION AND ORDER
R. Goodwin, Judge
before the court is Mountaineer Gas Company's Motion for
Sanctions for Spoliation of Evidence [ECF No. 287] and
Travelers Property Casualty Company of America's Motion
in Limine for Sanctions against Defendant Mountaineer Gas
Company for Spoliation of Evidence [ECF No. 307]. For the
reasons stated herein, these Motions [ECF Nos. 287, 307] are
case arises from a boiler explosion that occurred at St.
Mary's Medical Center (“St. Mary's”), in
Huntington, West Virginia, on June 25, 2013. In April 2013,
St. Mary's commissioned the services of Combustion
Service & Equipment Company (“CS&E”) to
supply three boilers for a new boiler system at St.
Mary's. Mem. Law Supp. Mot. Sanctions Spoliation Evid. 2
(“Def.'s Mem.”) [ECF. 288]. St. Mary's
installed the boiler system as part of an expansion project
that involved the construction of a new building known as the
“boiler house.” Id. at 3. Next to the
boiler house, Mountaineer Gas Company
(“Mountaineer”) maintained a small building,
known as the “gashouse, ” which supplied
Mountaineer's gas to the three boilers in the boiler
after installation, St. Mary's began experiencing
technical problems with the boilers including incidents
related to low gas pressure from Mountaineer's supply
line, which was causing a safety sensor to operate and
shutdown the boilers. Pl.'s Resp. to Mountaineer Gas
Co.'s Mot. Sanctions 2 (“Pl.'s Resp.”)
[ECF No. 293]. St. Mary's reported these issues to
Mountaineer and, in response, Greg Morris, a Mountaineer
technician, visited St. Mary's on June 25, 2013.
Id. Mr. Morris, along with CS&E technician, Tim
Rider, and St. Mary's facility manager, Everett Chapman,
attempted to troubleshoot the low gas pressure. Def.'s
Mem. 4. Mr. Rider attempted to run all three boilers
simultaneously at the maximum operating rate. Id.
Despite Mr. Rider's efforts, the gas pressure fell below
the desired level. Id. Mr. Morris attempted to
troubleshoot the low gas pressure by opening a bypass valve
in the gashouse, and Mr. Rider again attempted to operate the
boilers at the maximum operating rate. Id. at 5.
Approximately eight to ten minutes into the operation, one of
the boilers-referred to herein as Boiler 1-exploded.
Id. Boilers 2 and 3 did not malfunction. Pl.'s
some of the facts regarding the aftermath of the explosion
are disputed, the parties agree that representatives from St.
Mary's, Mountaineer, and CS&E were onsite immediately
after the explosion. Id. at 2-5; Def.'s Mem.
3-7. Greg Morris was on site before, during, and after the
explosion. Pl.'s Resp. 4. Lance Herbert,
Mountaineer's Gas Operations Manager, joined Mr. Morris
along with several other Mountaineer employees. Id.
Representatives from Mountaineer and St. Mary's took
photographs of the condition of the gashouse and the boiler
room post-explosion. Id.; Def.'s Mem. 6-7.
1 expelled fireproofing and debris during the explosion,
covering the boiler room with debris. Pl.'s Resp. 3. St.
Mary's employees immediately cleared the debris for fear
that they would get “sucked into” the remaining,
functioning boilers. Id. at 4. As part of their
post-explosion inspection, Mountaineer employees checked the
regulators downstream from the bypass valve and discovered
that the regulators were contaminated with “a
significant level of dirt and debris.” Id. The
employees discarded the debris once they completed their
Mary's employees checked the gas piping and the gas
trains leading to each of the three boilers upon learning
that Mountaineer found debris in the regulators. Id.
at 4-5. Dirt and debris had contaminated all three boilers,
but Boiler 1 contained more dirt and debris than Boilers 2
and 3. Id. at 5. Mr. Chapman photographed the dirt
and debris discovered in Boiler 1 and sealed the open ends of
the gas piping and gas train, preserving the debris inside
the piping. Id.; Def.'s Mem 6. Mr. Chapman took
photographs of the dirt and debris discovered in Boilers 2
and 3, and discarded the debris upon completion of his
inspection. Pl.'s Resp. 5.
inspections and meetings occurred over the weeks and months
following the explosion. Mountaineer's retained expert,
Walter Rothfuss, visited the explosion site on July 11,
and September 18, 2013 “to inspect the boilers, their
components, and the evidence.” Id. Ex. 8, at 6
[ECF No. 293-8].
September 24, 2013, Bill Noyes, a consultant for Travelers
Property Casualty Company of America
(“Travelers”), St. Mary's insurer, informed
the parties by email that St. Mary's intended to remove
and replace Boiler 1 and its electrical components, and
explained the procedure for Boiler 1's removal.
Def.'s Mem. Ex. 16, at App. B [ECF 288-16]. Several of
the parties requested to perform additional testing of the
electrical components before Boiler 1 was removed. Pl.'s
Resp. 7. Traveler's acquiesced to these requests and on
September 30 and October 1, 2013, Rich Martin, an employee of
Rothfuss Engineering Company (“REC”), and Mr.
Noyes performed electrical wire marking on Boiler 1.
Def.'s Mem. 8.
October 28 and 30, 2013, Boiler 1 was removed from St.
Mary's and transported to a storage facility. Pl.'s
Resp. 8. On September 18, 2014, Mr. Rothfuss conducted his
last pre-suit examination of Boiler 1, at a facility in
Nicholasville, Kentucky where Boiler 1 was being preserved in
anticipation of future litigation. Id. Ex. 8, at 6.
19, 2015, Travelers filed this subrogation lawsuit on behalf
of its insured against Mountaineer. Compl. [ECF No. 1].
Discovery commenced shortly thereafter. The court entered
multiple scheduling orders over the course of this case to
facilitate the parties' discovery needs. See
Sched. Orders [ECF Nos. 46, 75, 110, 158, 241, 278, 320, 327,
339, 345]. The parties also submitted multiple stipulations
extending time to participate in discovery, including
deadlines pertaining to the disclosure of experts, the
deadlines for briefing, and deadlines to take depositions.
See Stipulations [ECF Nos. 15, 162, 163, 195, 244,
263, 280, 291, 292].
discovery progressed in this case, the parties engaged in
additional examination and inspection of Boiler 1 and
substantial written discovery. On July 28, 2016, Mr.
Rothfuss, along with several other consultants, participated
in a laboratory examination and analysis of debris found in
Boiler 1's gas train. Pl.'s Resp. Ex. 8, at 6. On
July 19, 2016, REC conducted flow testing of the gashouse
inlet strainer as well as the gas train inlet strainer of
Boiler 1 at REC's facility in Jessup, Maryland.
Id. On September 7, 2016, Mr. Rothfuss conducted
another examination of Boiler 1. Id. On September
19, 2016, he produced his expert report and conclusions with
respect to the potential causes of the boiler explosion.
was required, pursuant to the then-current scheduling order
addressing expert disclosures, to submit its expert
disclosures by September 19, 2016. Am. Sched. Order 1 [ECF
No. 158]. In his report, Mr. Rothfuss articulated
nineteen different causes for Boiler 1's explosion.
Pl.'s Resp. Ex. 8, at 6. Mr. Rothfuss's initial
report did not indicate that he was unable to perform a
thorough investigation of the evidence, nor did he allege
that his conclusions regarding causation were affected by the
absence of any pertinent information or evidence.
deadline for depositions and the close of discovery was
October 17, 2016, which was amended by stipulation of the
parties to November 18, 2016. Stipulation Enlargement Time 1
[ECF No. 195]. A subsequent Amended Scheduling Order, dated
January 18, 2017, set the deadline for dispositive motions
for April 10, 2017. Sched. Order 1 [ECF No. 241]. This
Amended Scheduling Order did not extend any of the discovery
April 7, 2017, three days prior to the deadline to file
dispositive motions set forth by the court's Amended
Scheduling Order, all parties, except Mountaineer, moved
again to extend the remaining deadlines. Joint Mot. Amend
Sched. Order [ECF No. 272]. In their motions, the parties
represented that all fact discovery and fact depositions were
complete, all expert reports were exchanged, and all of the
parties' experts had been deposed, except for Mr.
Rothfuss. Id. at ¶¶ 12-13.
April 27, 2017, six months after the close of discovery, Mr.
Rothfuss submitted a new, “preliminary” report.
See Pl.'s Resp. Ex. 10 [ECF No. 293-10].
Therein, nearly four years after the boiler explosion, Mr.
Rothfuss raised the specter of spoliation of evidence,
claiming that Travelers did not maintain certain evidence to
the detriment of Mountaineer. Id. at 9, 12-13.
Specifically, Mr. Rothfuss stated, for the first time, that
he had requested the opportunity to perform testing of the
control and safety devices on the boiler system during his
July 11, 2013 inspection, and that Travelers and St.
Mary's representatives refused such testing. Id.
at 9. He also stated that St. Mary's did not retain the
control panels to Boiler 1, making any further evaluation of
Boiler 1's electrical wiring impossible. Id. at
19, 2017, the parties deposed Mr. Rothfuss. See
Pl.'s Resp. Ex. 11 [ECF No. 293-11]. Counsel for
Travelers, noting Mr. Rothfuss's supplemental opinions,
asked Mr. Rothfuss to explain the basis for his amendments:
Q: As of September 2016, you were aware at that point that
some of the evidence you just described was no longer in
Q: You also were aware that at least some of the evidence,
including the flame sensor, was, in your estimation, unable
to be tested; correct?
Q: It's also your testimony that by September 2016
you're aware that the boiler had been removed from its
location and placed in storage in ...