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HEADNOTES

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COURT'S OPINION

MARTIN YINUG, Associate Justice:

     The court has received and considered the motion for summary judgment of defendants (collectively "Mobil"), plaintiff's response, and Mobil's reply. Having given careful consideration to the foregoing, and the substantial quantity of material in support thereof, the court grants Mobil's motion for summary judgment. Reasons follow below.

     Also, as to housekeeping matters, Mobil's January 21, 2002, and January 24, 2002, motions for enlargement of time are granted. (There was also a December 28, 2002, motion for enlargement, but the granting of the January 21, 2002, motion effectively moots the December 28, 2002, motion.) All remaining pending motions are denied as moot.

A

     In order to accelerate the burning of a smoking fire on which a pot of pig food was cooking, Carnis poured a liquid onto the fire which he thought to be kerosene, but which the plaintiff now alleges was kerosene contaminated with gasoline. The pig food, composed of breadfruit, water, and rice, was in a pot sitting on a rebar frame, which was about 52-53 inches long, 20 inches wide, and 17 inches high. The round steel pot, which was just under three feet wide and high, was already on the rebar frame when Carnis placed shavings and firewood underneath it to start the fire. The pile of wood extended out about as far as the edges of the pot, and was stacked up close to the bottom of the pot. After starting the fire, it died down, and to accelerate the fire, Carnis poured kerosene onto the fire by putting the nozzle of the kerosene container in between the spaces of the rebar in about the middle of the grate and pouring. There was about two gallons of the liquid in a five gallon plastic container, with

[10 FSM Intrm. 578]

two openings in it, one for pouring, and one to let air in. Carnis's father had gotten the kerosene that morning from Panuelo's service station. Carnis could not tell if there was fire immediately below where he was pouring, because large pieces of firewood and the smoke blocked the view. He poured "just a little" of the kerosene into the fire, and then "flame got into the container." An orange flame "sprayed" from the container. Carnis estimated that the length of the spraying flame was about 40 inches and went beyond the pot to where Curtis was sitting on the other side. In fact the flame went about a foot beyond Curtis and in the process burned him. Carnis was not aware that Curtis, who had gone to the house to get paper, had returned and was sitting on the other side of the fire when he, Carnis, poured the liquid on the fire. When Curtis was burned, he ran to splash water on himself. The flame continued to spray from the container that Carnis was holding. When the flame was shooting out, Carnis felt the container shaking. He dropped the container, which spun until all of the contents of the container were gone. The length of the spraying flame was diminishing, and was extending out about 28 inches when the container was on the ground. The container continued to spin for about 10 seconds until the fuel was gone. Carnis testified that there was no sound of an explosion,1 rather just a "vvvv"-like sound caused by the burning of the spraying flame. The plastic container itself was not burned, except that "just a little bit of the tip on the nozzle was blackened a little bit." The container lay around until it was lost sight of.

B

     On motion for summary judgment, facts and inferences therefrom should be viewed in a light most favorable to the opposing party. Luzama v. Ponape Enterprises Co., 7 FSM Intrm. 40, 48 (App. 1995). Where facts lead to differing reasonable inferences, then summary judgment is not appropriate. Adams v. Etscheit, 6 FSM Intrm. 580, 583 (App. 1994). Anderson v. Liberty Lobby, Inc., 477 U.S 242, 250, 106 S. Ct. 2505, 2511, 91 L. Ed. 2d 202, 213 (1986), emphasizes the role of the fact finder: the existence of a genuine issue of fact rests on "whether . . . there are any genuine factual issues that properly can be resolved only by a finder of fact because they may reasonably be resolved in favor of either party." Conversely, "[w]here the record taken as a whole could not lead a rational trier of fact to find for the nonmoving party, there is no `genuine issue for trial.'" Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S. Ct. 1348, 1356, 89 L. Ed. 2d 538, 552 (1986). In sum, if genuine fact issues can be reasonably resolved only in favor of the movant, then summary judgment in movant's favor is appropriate. On the other hand, if those same fact issues may be reasonably in favor of either party, summary judgment will be denied. Further,

Celotex Corp. v. Catrett , 477 U.S. 317, 322-23, 106 S. Ct. 2548, 2552, 91 L. Ed. 2d 265, 273

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(1986).2

     After the movant has made out a prima facie case for summary judgment, a shifting of the burden occurs which requires the responding party to come forward with evidence to show that a genuine issue of material fact exists, and in so doing the responding party may not look to unsubstantiated denial of liability but must come forward with competent evidence, admissible at trial, to establish that there is a genuine issue of fact. FSM Social Sec. Admin. v. Weilbacher, 7 FSM Intrm. 442, 444 (Pon. 1996). Unsupported factual assertions are insufficient to oppose a motion for summary judgment. Williams v. Weber Mgmt. Servs., Inc., 839 F.2d 1039, 1041 (5th Cir. 1987). A moving defendant may rely on the absence of evidence to support an essential element of the plaintiff's case. Palandjoglou v. United Nat'l Ins. Co., 821 F. Supp. 1179 (S.D. Tex. 1993). Of course, where a movant has demonstrated that no genuine issue of material fact exists, he must still show that applicable law entitles him to judgment in his favor, since Rule 56(c) of the FSM Rules of Civil Procedure by its terms provides that summary judgment may be granted where there is no "genuine issue as to any material fact and . . . the moving party is entitled to judgment as a matter of law" (emphasis added). It bears noting that the language itself of Rule 56(e) of the FSM Rules of Civil Procedure provides that in responding to a motion for summary judgment,

(emphasis added). Finally, "[o]nly when the opposing parties submit affidavits that set forth specific facts showing a genuine issue for trial will summary judgment be barred." 11 James Wm. Moore, Moore's Federal Practice § 56.14[1][f] (3d. ed. 1999) (citing in n.83 Travelers Ins. Co. v. Liljeberg Enterprises, Inc., 7 F.3d 1203, 1206-07 (5th Cir. 1993) (granting summary judgment in movant's favor where nonmovant's affidavit was conclusory and did not specify when or how it had been denied possession of certain premises)).3

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C

     In support of its motion for summary judgment, Mobil has submitted the transcripts of trial testimony of its two expert witnesses in the course of the Lebehn v. Mobil Oil Micronesia, Inc., 10 FSM Intrm. 348 (Pon. 2001). Rule 56(c) provides that the court will consider "pleadings, depositions, answers to interrogatories, . . . admissions on file, . . . and affidavits" in considering a motion for summary judgment. Suldan does not object to the submission of this material, and the scope of the foregoing is sufficient to encompass sworn trial testimony where that testimony goes to the same contamination and subsequent causation issues raised in the instant case. In United States v. Various Slot Machines on Guam, 658 F.2d 697, 699 (9th Cir. 1981), discussed in some detail immediately infra, the court considered without comment testimony from another case in ruling on a motion for summary judgment. Thus, the trial transcripts are properly before the court on motion for summary judgment. In responding to Mobil's motion for summary judgment, Suldan has submitted portions of the depositions of its designated experts. Depositions are expressly included in Rule 56(e).

     To this court's logical sense, the Ninth Circuit Court of Appeals is precisely correct in Slot Machines when it opines that "we have difficulty with the notion that to state an opinion is to set forth specific facts. Be that as it may, we also think that in the context of a motion for summary judgment, an expert must back up his opinion with specific facts." 658 F.2d at 700. No expert opinion arises simultaneously with the events that ultimately gives rise to that opinion, but comes to harvest in the course of the lawsuit and in the usual case is a gloss on the occurrence or events on which the lawsuit is based. In that sense an opinion is not a "fact" within the meaning of Rule 56(e) of the FSM Rules of Civil Procedure. However, Rules 702-704 of the FSM Rules of Evidence expressly allow for the opinion testimony of expert witnesses. As the Slot Machines court noted, the question is whether any given opinion is "back[ed] up . . . with specific facts." 658 F.2d at 700.

     Of course, the facts of this case are not the facts of Slot Machines, where the machines

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     Suldan's complaint contains counts for negligence, products liability, breach of warranty, abnormally dangerous activity, and punitive damages. As pled, all of these counts rest on the premise that the kerosene that Carnis Suldan poured onto the fire on October 31, 1992, was contaminated, and that the legal fault for that contamination rests with Mobil. One of Mobil's experts, Dr. Joseph Shepherd, specifically addressed the contamination issue as it related to the case at bar in the course of his testimony in Lebehn. Dr. Shepherd is a professor of aeronautics at the California Institute of Technology. He obtained his doctorate in applied physics from that same institution, and has specialty in the area of combustion, fire, and explosion. Rule 702 of the FSM Rules of Evidence provides that a duly qualified expert may offer opinion testimony if scientific knowledge will assist the trier of fact. Dr. Shepherd is competent to offer his opinion under that rule. He testified at length to the behavior of both kerosene and kerosene contaminated to various degrees with gasoline. Dr. Shepherd was asked about the factual allegations in this case, and in response to the question provided a summary of the facts. Exhibit "E" to Mobil's Motion for Summary Judgment at 111 (exhibit "E" is the transcript of Dr. Shepherd's November 7 and 8, 2000, testimony in Lebehn). Rule 703 of the FSM Rules of Evidence provides that an expert may opine on the facts of a particular case as they are made known to him "at or before the hearing [at which the expert testifies]." Rule 704 of the FSM Rules of Evidence further expressly permits an expert to offer an opinion "that embraces an ultimate issue to be decided by the trier of fact," which in this instance is contamination as it embraces causation. When asked, "[i]s there something about that, the factual scenario that indicates to you that there was contaminated fuel?", he answered "no", and that "[p]ouring fuel onto a lit fire, even if it's only beginning to light, is an extremely hazardous exercise." Ex. "E" to Mobil's Motion for Summary Judgment at 111.4 Suldan offered no objection to Dr. Shepherd's opinion in Lebehn. Nor in this case does he offer any objection to the opinion as it has been offered by submission of Dr. Shepherd's trial testimony in Lebehn.

     In responding to Mobil's motion for summary judgment, Suldan has submitted his exhibit 22, which is a four page excerpt of the deposition of Suldan's designated expert, Mr. Jeffrey Burke, who completed an unspecified university chemistry curriculum during the course of obtaining his bachelor

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of science degree in mechanical engineering. Burke also holds a master's degree in business administration and another master's degree in public administration. As the court did in Slot Machines, this court will assume for the sake of the instant discussion that Mr. Burke is a competent expert on the issues in this case under FSM Rule of Evidence 702.5 He testified that if one were to pass a lit match across the opening of a five gallon container containing one inch of kerosene, the kerosene would not ordinarily explode or combust. He also testified that if one were to drop the match into the container of kerosene, the kerosene would "probably not" either explode or combust.

     The critical consideration with respect to Burke's deposition testimony is that Curtis Suldan's injuries did not result from passing a match over the mouth of a container containing kerosene, or dropping a match into such a container. Burke's testimony does not fairly meet the opinion testimony of Dr. Shepherd. If Burke held the view that the injury in this case could only have resulted from the combustion of contaminated kerosene, the court would fully expect that he would express that opinion, and that that opinion would be based on the facts of this case. However, Suldan does not direct the court to any part of the record where such an opinion is set forth. In Slot Machines, the issue was whether the opinions offered by the claimant nonmovants, which went to the same question on which movant offered factually substantiated affidavits, was sufficient to create an issue of fact. Here, however, there is even a greater degree of defect than in Slot Machines in the sense that the opinion offered by the nonmovant does not go to the causation issue presented by the facts, and on which Dr. Shepherd offered his opinion. Consequently, Burke's testimony does not create a fact issue under Rule 56 of the FSM Rules of Civil Procedure.

     Given the amount of paper that the parties have filed in presenting the motion, response, reply, and supporting exhibits, the question presents itself whether, by dint of sheer volume, there is buried somewhere in the assembled collation a "genuine issue [of] material fact" sufficient to preclude summary judgment. FSM Civ. R. 56(c). But this fails to acknowledge the fact that the litigation process is designed not only to discover information, but also to reduce it to the essentials necessary to advance a party's case. Where a lawsuit deals, as here, with "scientific, technical, or other specialized knowledge," FSM Evid. R. 702, an expert's opinion is a useful tool in this paring process. Its value derives in no insubstantial part from the fact that it reflects a synthesis of relevant facts. Where such an opinion goes to a necessary element of the case, and stands unopposed by a countervailing, factually supported expert opinion that fairly meets the moving party's opinion, it may be dispositive in the context of a motion for summary judgment. Slot Machines, 658 F.2d 697; cf. Merit Motors, Inc. v. Chrysler Corp., 569 F.2d 666, 673, 674 (D.C. Cir. 1977) (a "pre-trilogy" opinion by Judge J. Skelly Wright holding that nonmovant's expert's affidavit in anti-trust action was insufficient to create an issue of fact where that affidavit made "unsupported assumptions"; district court's grant of summary judgment in movant's favor affirmed).

     Suldan urges that "Defendants must prove that there is no genuine issues about any material fact to be entitled to judgment as a matter of law." Pl.'s Opp'n to the Defs.' Motions for Summary Judgment on All Claims at 14 (Dec. 18, 2001) (emphasis in the original). This misses the point.

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Viewed in the light of Dr. Shepherd's specific testimony that nothing about the combustion event in this case points to kerosene contamination, Burke's testimony does not "set forth specific facts showing that there is a genuine issue of fact," FSM Civ. R. 56, as to the kerosene contamination issue. The existence of the defect goes to a necessary element of Suldan's case. In the words of Catrett, 477 U.S. 317, 322, 106 S. Ct. 2548, 2552, 91 L. Ed. 2d 265, 273 (1986), Suldan has "fail[ed] to make a showing sufficient to establish the existence of an element essential to [his] case, and on which [he] will bear the burden of proof at trial." Summary judgment in favor of Mobil is therefore appropriate.

     Mobil has cited numerous design defect products liability cases for the proposition that the admissibility of evidence of other accidents is premised on the similarity between the accident at issue and the other accidents that the plaintiff seeks to introduce. For example, in Lovick v. Wil-Rich, 588 N.W.2d 688, 697 (Iowa 1999), the court held that on a design defect products liability claim, evidence of other accidents is admissible to show a dangerous condition so long as the proponent makes a foundational showing that the prior accidents occurred under substantially the same circumstances. Further, "[e]vidence proffered to illustrate the existence of a dangerous condition necessitates a high degree of similarity because it weighs directly on the ultimate issue to be decided by the [finder of fact]." In re Air Crash Disaster of Sioux City, Iowa, on July 19, 1989, 1991 WL 279005 at 2 (N.D. Ill. 1991). While the alleged defect in the kerosene in this case resulted from the contamination of Mobil's product, and not its design, logic dictates the same result, that Suldan must show a "high degree of similarity," id., between the accident in this case and the accidents in the other cases before the other accidents will be admitted on the question of the dangerous condition of the allegedly contaminated product in the case at bar.

      Lastly, the parties devote considerable discussion to whether the allegedly contaminated fuel that caused the injury in this case originated from a delivery to Pohnpei service stations from Mobil's delivery truck known as the ME-147, which had a 5,000 gallon capacity, or its truck known as the ME-096, with a 3,000 gallon capacity. However, facts that go to the question of the contamination source are rendered immaterial in light of Dr. Shepherd's competent, uncontroverted expert testimony that nothing about the combustion event that caused the injury in this case led him to believe that the

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kerosene was contaminated. Catrett, 477 U.S. at 323, 106 S. Ct. at 2552, 91 L. Ed. 2d at 273 ("a complete failure of proof concerning an essential element of the nonmoving party's case necessarily renders all other facts immaterial").

     Accordingly, Mobil's motion for summary judgment is granted on all claims. A judgment issues herewith.

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Footnotes:

2. Referring to Liberty Lobby, Catrett, and Matsushita, Prof. Moore notes that

11 James Wm. Moore, Moore's Federal Practice § 56.03[1] at 56-25 (3d. ed. 1999) (footnotes omitted).

Prof. Moore cites Brunet, The Use and Misuse of Expert Testimony in Summary Judgment, 22 U.C. Davis L. Rev. 93, 127 (1988), for the somewhat colorful formulation that "[t]he recipe to avoid summary judgment is for the nonmovant to obtain an expert and to file a properly admissible counter-affidavit creating `genuine issues of material fact' requiring a conventional trial." 11 James Wm. Moore, supra note 2, § 56.14[1][e] n.56. Moore notes "that Brunet's article was written before the D.C. Circuit's opinion in Catrett on remand, which arguably requires a broader view of permissible affidavits for expert witnesses as well as fact witnesses." Id. On remand in Catrett, the court denied summary judgment based on nonmovant's tender of a letter from a trial witness were the letter was "reducible to admissible evidence in the form of trial testimony." Catrett v. Johns-Manville Sales Corp. 826 F.2d 33, 38 (D.C. Cir. 1987), cert. denied, 484 U.S. 1066 (1988).

Id. at 339.