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City of Chicago v. Westchester Fire Insurance Co.

September 1, 2010

CITY OF CHICAGO, PLAINTIFF,
v.
WESTCHESTER FIRE INSURANCE COMPANY, DEFENDANT.



The opinion of the court was delivered by: Judge Joan H. Lefkow

OPINION AND ORDER

The City of Chicago (the "City") brought suit against Westchester Fire Insurance Company ("Westchester") seeking a declaratory judgment and injunctive relief related to a claim the City made with Westchester under an insurance policy. Before the court are both parties' motions to exclude certain expert opinions. The City has moved to exclude the testimony of Westchester's expert Dr. Michael Stringfellow. Westchester has moved to exclude certain expert opinion testimony of (1) Mr. John Huston, P.E., (2) Mr. Thomas Vukovich, and (3) Professor Randall Geiger. For the following reasons, the City's motion [#52] is granted in part and denied in part, and Westchester's motion [#54] is granted in part and denied in part.

BACKGROUND

This case involves a dispute over insurance coverage for a Liebert Series 600 model, 500 KVa uninterruptible power supply (the "UPS") at the City's 911 Call Center (the "911 Center"). The UPS failed on July 22, 2004, causing the City's 911 system to go down. It was repaired and placed back into service the following day. The UPS then operated without incident until replaced on March 25, 2005 with two new Liebert 400 KVa UPS units. The City filed a claim with Westchester to cover its costs related to the repair and replacement. Westchester responded that only costs related to the repair of the UPS are covered, maintaining that the UPS was fully repaired by July 26, 2004. The City contends that the UPS had latent damage from the July 22, 2004 failure requiring replacement in order for the system to be brought back to its pre-July 22, 2004 condition.

I. Westchester's Expert: Dr. Michael Stringfellow

Dr. Stringfellow is the chief scientist for PowerCET Corporation, where he works on consulting, education, and training projects on power quality, grounding, electromagnetic compatibility, and lightning and transient protection of power and communication systems. He has a Ph.D. in atmospheric electricity, is a registered professional engineer, and is a senior member of the Institute of Electrical and Electronics Engineers. Dr. Stringfellow's main focus is on lightning and its effects on overhead power lines, although he also has worked more generally on transient protection of power and communication systems and dealt with UPS units, including their design.

Dr. Stringfellow has expressed the following opinions: (1) Prior to July 22, 2004, the UPS had exhausted approximately half its rated life and likely had components nearing the end of their life. (2) The City had not appropriately maintained the UPS. (3) The UPS was damaged primarily because of a temporary overvoltage that resulted from a lightning strike to the power system. The temporary overvoltage damaged fuses at the UPS's input. (4) The damage to the UPS could have resulted from the temporary overvoltage or, more likely, the application of 120 volt AC to the circuitry by first responders. (5) During the repair, all major power electronic components and damaged control boards were replaced. No evidence exists suggesting that latent damage was present and reduced the UPS's service life. (6) Any concern about latent damage could have been addressed through further tests or replacement of any other suspect electronic control boards. (7) The facility was improperly grounded and not in compliance with the National Electrical Code, which may have contributed to the damage. (8) The City was planning on replacing the UPS with a dual-redundant system prior to July 22, 2004. (9) The decision to upgrade the system was made before any analysis of damage to the UPS was available. (10) The temporary power system used as a backup after July 22, 2004 was unnecessarily expensive, complex, and a disproportionate response. Dr. Stringfellow's opinions are based on his scientific and engineering knowledge, experience and investigations into power system incidents, and a review of various documents, including deposition transcripts, photographs of the damaged circuit boards, and Liebert manuals and white papers.

II. The City's Experts

A. Mr. John Huston, P.E.

Mr. Huston is a licensed professional engineer and the Vice President of Technology Integration at Teng & Associates ("Teng"). He was hired by the City as a peer reviewer soon after July 22, 2004 to assess the initial failure of the UPS and help in the subsequent design of the new system. Mr. Huston viewed boards that were removed from the UPS after it was damaged, some that were visibly damaged and others that were not. He did not physically test any of the removed boards himself but sent them to be tested by Packer Engineering. Packer Engineering could not conclusively determine what caused the failure. Mr. Huston concluded, however, that there was a catastrophic failure because of a surge and that, because the logic board, which is the most protected component of the UPS, was physically damaged, every board in the unit was exposed to some type of distress. Based on his observations of the removed boards, others' conclusions, and his professional experience, Mr. Huston opines that the UPS, even after repair, was unreliable and not sufficient for use in a life safety facility like the 911 Center and thus needed to be replaced. He states that there was no way to know whether the UPS was functioning at the level it should unless it was factory witness tested. According to Mr. Huston, however, factory witness testing is cost-prohibitive and was not a feasible option for the City since it would have required removing the UPS from the 911 Center for testing.*fn1 Further, he did not believe other field testing was worthwhile, as factory witness testing would be the only way to truly determine whether the UPS was functioning at its pre-July 22, 2004 condition.

The City disclosed Mr. Huston in its amended Rule 26(a)(2) disclosures as an expert who will testify that (1) because the UPS's logic board was destroyed, the surge affected all other components of the UPS; (2) the UPS was irreparably damaged by a large electric surge that created latent semi-conductor failure; (3) the board replacement was not an adequate repair because damage from old boards would leak into new boards; (4) the UPS had to be factory witness tested to determine its true functionality, which was not financially feasible; and (5) the failure was not caused by improper maintenance because pre-failure maintenance logs demonstrate that Liebert declared the unit to be defect free.

B. Professor Randall Geiger

Professor Geiger is a professor in the Department of Electrical and Computer Engineering at Iowa State University, having previously served as chairman of the department. He has a Ph.D. in electrical engineering from Colorado State University. He teaches courses in circuits, including integrated circuits, and has published widely on related topics. He is a fellow of the Institute of Electrical and Electronics Engineers.

Professor Geiger was retained by the City to provide an opinion on "what change, if any, in the reliability of [the UPS] should be attributed to the malfunction and subsequent repair of this device." Expert Report of Randall Geiger at 3, attached as Ex. 5 to Def.'s Mot. He concluded that, after the July 22, 2004 failure and repair, the UPS was substantially less reliable than it had been prior to the event. In preparing his expert report, Professor Geiger reviewed various documents, including depositions, failure analyses by Teng, Liebert, and Packer Engineering, and photographs of the damaged boards that were included in these analyses. After completing the report, he observed the UPS in a warehouse but stated that it was not necessary for him to see the UPS prior to ...


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