FSM SUPREME COURT TRIAL DIVISION
Cite as Suldan v. Mobil Oil Micronesia, Inc.
10 FSM Intrm. 574 ( Pon. 2002)
 
[10 FSM Intrm. 574]
 
CURTIS SULDAN, a minor, through his next
friend, ESTA SULDAN,
Plaintiff,
 
vs.
 
MOBIL OIL MICRONESIA, INC., MOBIL OIL
CORPORATION and MOBIL OIL GUAM, INC.,
Defendants.
 
CIVIL ACTION NO. 1999-037
 
ORDER AND MEMORANDUM
 
Martin Yinug
Associate Justice
 
Decided: April 5, 2002
 
APPEARANCES:
 
For the Plaintiff:                                Daniel J. Berman, Esq.
                                                           P.O. Box 1491
                                                           Kolonia, Pohnpei FM 96941
 
For the Defendants:                        Fredrick L. Ramp, Esq.
                                                          Law Office of Fredrick L. Ramp
                                                          P.O. Box 1450
                                                          Kolonia, Pohnpei FM 96941

* * * *

HEADNOTES

Civil Procedure ) Summary Judgment
     On motion for summary judgment, facts and inferences therefrom should be viewed in a light most favorable to the opposing party, and when facts lead to differing reasonable inferences, then summary judgment is not appropriate. Suldan v. Mobil Oil Micronesia, Inc., 10 FSM Intrm. 574, 578 (Pon. 2002).
 
Civil Procedure ) Summary Judgment
     If genuine fact issues can be reasonably resolved only in the movant's favor, then summary judgment in movant's favor is appropriate, but if those same fact issues may be reasonably in favor of either party, summary judgment will be denied. Suldan v. Mobil Oil Micronesia, Inc., 10 FSM Intrm. 574, 578 (Pon. 2002).
 
Civil Procedure ) Summary Judgment
     Rule 56(c) mandates the entry of summary judgment, after adequate time for discovery and upon
 
[10 FSM Intrm. 575]
motion, against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial. In such a situation, there can be "no genuine issue as to any material fact," since a complete failure of proof concerning an essential element of the nonmoving party's case necessarily renders all other facts immaterial. Suldan v. Mobil Oil Micronesia, Inc., 10 FSM Intrm. 574, 578 (Pon. 2002).
 
Civil Procedure ) Summary Judgment
     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. Unsupported factual assertions are insufficient to oppose a motion for summary judgment. Suldan v. Mobil Oil Micronesia, Inc., 10 FSM Intrm. 574, 579 (Pon. 2002).
 
Civil Procedure ) Summary Judgment
     A defendant moving for summary judgment may rely on the absence of evidence to support an essential element of the plaintiff's case. Suldan v. Mobil Oil Micronesia, Inc., 10 FSM Intrm. 574, 579 (Pon. 2002).
 
Civil Procedure ) Summary Judgment
     When 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. Suldan v. Mobil Oil Micronesia, Inc., 10 FSM Intrm. 574, 579 (Pon. 2002).
 
Civil Procedure ) Summary Judgment
     In responding to a summary judgment motion, an adverse party may not rest upon the mere allegations or denials of its pleading, but the adverse party's response, by affidavits or as otherwise provided in Rule 56, must set forth specific facts showing that there is a genuine issue for trial. If the adverse party does not so respond, summary judgment, if appropriate, will be entered against the adverse party. Suldan v. Mobil Oil Micronesia, Inc., 10 FSM Intrm. 574, 579 (Pon. 2002).
 
Civil Procedure ) Summary Judgment
     Only when the opposing parties submit affidavits that set forth specific facts showing a genuine issue for trial will summary judgment be barred. Suldan v. Mobil Oil Micronesia, Inc., 10 FSM Intrm. 574, 579 (Pon. 2002).
 
Civil Procedure ) Summary Judgment
     In considering a summary judgment motion, the court will consider pleadings, depositions, answers to interrogatories, admissions on file, and affidavits, 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. Suldan v. Mobil Oil Micronesia, Inc., 10 FSM Intrm. 574, 580 (Pon. 2002).
 
Civil Procedure ) Summary Judgment; Evidence ) Expert Opinion
     To state an opinion is not to set forth specific facts. In the context of a summary judgment motion, an expert must back up his opinion with specific facts. Suldan v. Mobil Oil Micronesia, Inc., 10 FSM Intrm. 574, 580 (Pon. 2002).
 
Civil Procedure ) Summary Judgment; Evidence ) Expert Opinion
     No expert opinion arises simultaneously with the events that ultimately gives rise to that opinion,
 
[10 FSM Intrm. 576]
but comes to harvest in the course of a 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 Civil Rule 56(e), but since Evidence Rules 702-704 expressly allow for expert witnesses' opinion testimony, the question is whether any given opinion is backed up with specific facts. Suldan v. Mobil Oil Micronesia, Inc., 10 FSM Intrm. 574, 580 (Pon. 2002).
 
Civil Procedure ) Summary Judgment; Evidence ) Expert Opinion
     The precise combustive characteristics of kerosene, gasoline, and mixtures of the two lie beyond the ordinary ken of the court. In these circumstances, an expert's opinion is indispensable to the finder of fact in determining whether questions of fact may be reasonably resolved only in favor of the moving party. Suldan v. Mobil Oil Micronesia, Inc., 10 FSM Intrm. 574, 581 (Pon. 2002).
 
Evidence ) Expert Opinion
     An expert may opine on a particular case's facts as they are made known to him at or before the hearing at which the expert testifies and the expert may offer an opinion that embraces an ultimate issue to be decided by the trier of fact. Suldan v. Mobil Oil Micronesia, Inc., 10 FSM Intrm. 574, 581 (Pon. 2002).
 
Civil Procedure ) Summary Judgment; Evidence ) Expert Opinion
     When the expert opinion offered by the nonmovant does not go to the causation issue presented by the facts, and on which the movant's expert offered his opinion, it does not create a fact issue under Rule 56. Suldan v. Mobil Oil Micronesia, Inc., 10 FSM Intrm. 574, 582 (Pon. 2002).
 
Civil Procedure ) Summary Judgment; Evidence ) Expert Opinion
     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. When a lawsuit deals with scientific, technical, or other specialized knowledge, 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. When 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 summary judgment motion. Suldan v. Mobil Oil Micronesia, Inc., 10 FSM Intrm. 574, 582 (Pon. 2002).
 
Civil Procedure ) Summary Judgment; Evidence ) Expert Opinion
     When the plaintiff's expert's testimony does not set forth specific facts showing that there is a genuine issue of fact as to the kerosene contamination issue and since the defect's existence goes to a necessary element of the plaintiff's case, the plaintiff has failed 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 and summary judgment in the defendants' favor is therefore appropriate. Suldan v. Mobil Oil Micronesia, Inc., 10 FSM Intrm. 574, 583 (Pon. 2002).
 
Evidence; Torts ) Product Liability
      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, evidence 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. Suldan v. Mobil Oil Micronesia, Inc., 10 FSM Intrm. 574, 583 (Pon. 2002).
 
Evidence; Torts ) Product Liability
     When the alleged defect in the kerosene resulted from the contamination of the product, and not its
 
[10 FSM Intrm. 577]
design, logic dictates that the plaintiff must show a high degree of similarity 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. Suldan v. Mobil Oil Micronesia, Inc., 10 FSM Intrm. 574, 583 (Pon. 2002).
 
Evidence; Torts ) Product Liability
     When the instant case is similar to the other accidents to the extent that the alleged defect is the same, i.e., contaminated kerosene, but the manner in which the other accidents occurred is quite different, the other accidents are not sufficiently similar to be admissible on the question of dangerousness. Suldan v. Mobil Oil Micronesia, Inc., 10 FSM Intrm. 574, 583 (Pon. 2002).
 
Civil Procedure ) Summary Judgment; Evidence ) Expert Opinion
      Facts that go to the question of a contamination source are rendered immaterial in light of the defendants' expert's competent, uncontroverted expert testimony that nothing about the combustion event that caused the injury led him to believe that the kerosene was contaminated. Suldan v. Mobil Oil Micronesia, Inc., 10 FSM Intrm. 574, 583-84 (Pon. 2002).

* * * *

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

     This case, which was filed in August of 1999, centers around an injury to plaintiff Curtis Suldan ("Suldan") that happened nearly seven years earlier, on October 31, 1992, when Curtis and his brother Carnis Suldan were attempting to cook pig food. At the time of the accident, Curtis was 6 or 7, and Carnis was 12. Carnis, at his deposition taken nine years later ) in May of 2000 when he, Carnis, was 21 years old ) recounted events as follows.

     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,

the plain language of Rule 56(c) mandates the entry of summary judgment, after adequate time for discovery and upon motion, against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial. In such a situation, there can be "no genuine issue as to any material fact," since a complete failure of proof concerning an essential element of the nonmoving party's case necessarily renders all other facts immaterial.

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

[10 FSM Intrm. 579]

(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,

an adverse party may not rest upon the mere allegations or denials of the adverse party's pleading, but the adverse party's response, by affidavits or as otherwise provided in this rule, must set forth specific facts showing that there is a genuine issue for trial. If the adverse party does not so respond, summary judgment, if appropriate, shall be entered against the adverse party.

(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

[10 FSM Intrm. 580]

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.

     In Slot Machines, the plaintiff United States moved for summary judgment on the question of the forfeiture of the eponymous devices. In support of its motion, the United States submitted two FBI agents' affidavits, which described the slot machines in detail. Id. at 698. The court found that the two affidavits ) along with testimony from another case confirming that the devices had been received by one of the claimants from outside of Guam ) were sufficient to sustain the plaintiff's motion for summary judgment whether the machines were "gambling devices" as defined in 15 U.S.C.  1171(a)(1) and (2). Id. at 699, 697. In responding to the motion, the claimants submitted the affidavits of Messrs. Shelton and Pangelinan. Id. at 699. The court "assume[d]" that they both qualified as experts on coin-operated machines. Id. at 700. In their affidavits, they opined that the machines were not gambling devices, but "electronic point-maker machines." Id. at 699. In Shelton's affidavit was the ostensible statement of fact that the machines did not contain slots for the insertion of coins, and did not contain a return of jackpots or other awards. Id. Photos demonstrated that the machines had these features, and the court determined that it need to give no weight to allegations that had been demonstrated to be false. Id. at 701. Otherwise, the court found that Shelton's and Pangelinan's affidavits were bereft of facts, and as such were insufficient to create an issue of fact under Rule 56(e) in the face of the FBI agent's factually specific affidavits. Id. at 699, 701.

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

[10 FSM Intrm. 581]

themselves were available for inspection. In the case at bar, neither the allegedly contaminated kerosene nor the container from which it was poured are available for either inspection or testing. Thus to a degree absent in Slot Machines, the court ) and for that matter the parties as well ) must rely on inferences and conclusions to be drawn from remembered facts and hypotheses based on those facts, and must do so where those memories, inferences, hypotheses, and conclusions relate to events that occurred over nine years ago. Even more significantly, the precise combustive characteristics of kerosene, gasoline, and mixtures of the two lie beyond the ordinary ken of this court. In these circumstances, an expert's opinion is indispensable to the finder of fact in determining whether questions of fact may be reasonably resolved only in favor of the moving party.

     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

[10 FSM Intrm. 582]

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.

[10 FSM Intrm. 583]

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.

     Suldan stresses the fact that beginning on November 30, 1992, and continuing throughout December of 1992 and into January of 1993, a series of accidents in Pohnpei resulting in injury ) two of which were very serious ) that Mobil admits resulted from contaminated kerosene. Two more accidents also related to contaminated kerosene occurred in 1994. These accidents by and large appear to have occurred in the course of filling either lit stoves or lamps. Suldan points to these accidents and poses the question, "Does not the obvious question of fact seem clear at the outset to prohibit summary judgment?" Pl.'s Opp'n to the Defs.' Motions for Summary Judgment on All Claims at 2 (Dec. 18, 2001).

     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.

     The instant case is similar to the other accidents that Suldan offers to the extent that the alleged defect is the same, i.e., contaminated kerosene. But the manner in which the other accidents occurred ) principally in the course of filling already lit stoves and lamps ) is different from the facts of the accident in this case, which resulted from pouring kerosene onto a smoking fire. Thus the court finds that the other accidents are not sufficiently similar to be admissible on the question of dangerousness, and so will not consider them. However, even a finding of substantial similarity would not change the fact that Dr. Shepherd, testifying on the specific facts of this case, offered admissible testimony that nothing about the facts and circumstances indicate kerosene contamination as the cause of the plaintiff's injuries. Suldan has not countered that opinion. Hence, even if the other accidents were substantially similar, they would still be exactly that, i.e., other accidents. They would be insufficient to create an issue of fact in the face of specific, admissible testimony that contaminated kerosene did not cause the combustion event in this case.

      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

[10 FSM Intrm. 584]

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.

* * * *

________________________________________________________

Footnotes:

1. Suldan urges variously that "[t]he acts and omissions of Defendants are directly and circumstantially linked to the explosion which injured Plaintiff," Pl.'s Opp'n to the Defs.' Motions for Summary Judgment on All Claims at 3 (Dec. 18, 2001), and that "[s]imply put, kerosene does not explode unless defective." Id. at 16. The court notes at the outset that Carnis Suldan, an eyewitness to the event, testified that no explosion occurred.

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

[c]ourts and commentators quickly perceived the trilogy as ushering in a "new era" for more favorable judicial attitudes toward summary judgment. In the wake of the trilogy, summary judgment went from being seen as a motion reluctantly granted only in rare cases to being viewed as a fulcrum for adjudicating the heavy caseload facing federal courts. The trilogy cases not only provided supportive rhetoric for summary judgment but also rendered a number of important doctrinal pronouncements and specific holdings.

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

3.As noted further immediately below, affidavits have not been submitted in the case at bar ) rather sworn trial and deposition testimony ) but the same principle holds.

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).

4. Later, during cross-examination (Exhibit "E" to Mobil's Motion for Summary Judgment at 321-22) and redirect (id. at 338-339) there is discussion of the spinning motion of the kerosene container after Carnis dropped it. Dr. Shepherd termed the motion "bizarre," and offered the following explanation:

[I]n order to get something to spin, you're going to have to apply a force and that force is going to have to produce some motion and that motion would be some sort of circular motion. The combustion that would be occurring would be occurring in the ) a pool fire, the pool of fuel which is spilled out onto the ground and in no way does that imply that there's any force in the bottle. Now, the bottle or tank could have been just simply dropped onto the ground in such a way that it continued a circular motion.

Id. at 339.

5. One portion of Mr. Burke's deposition would, in any event, give the court cause for pause with respect to Mr. Burke's expert qualifications. He testified at pages 74 and 75 of his deposition that a mixture of gasoline and kerosene would emulsify, and that if allowed to stand for 24 hours, the gasoline would come to the top. On the other hand, Dr. Shepherd testified that gasoline and kerosene are "completely miscible", because they contain large numbers of identical molecules. Exhibit "E" to Mobil's Motion for Summary Judgment at 25. Dr. Shepherd had performed an experiment on mixtures of gasoline and kerosene left to stand for weeks. Id. at 29-30. Samples taken at the end were essentially identical to the initial samples. Id. At the trial in Lebehn, Suldan's counsel conceded the miscibility of the mixture. Id. at 25.

 

 
/Pr\4SSi '1udEA.d)r f$i w0unrn8 pe>e e A\4gs80 7t lCSBeS2J]1c)r f$i w0unrn8 pe>e e /Pr\4SSi '1udEA.d)r f$i w0unrn8 pe>e e A\4gs80 7t lCSBeS2J]3c)r f$i w0unrn8 pe>e e /Pr\4SSi '1udEA.d)r f$i w0unrn8 pe>e e A\4gs80 7t lCSBeS2J]0c)r f$i w0unrn8 pe>e e /Pr\4SSi '1udEA.d)r f$i w0unrn8 pe>e e A\4gs80 7t lCSBeS2J]0!A I ,0TA%80Si '1ud"A I ,0TA%80 7t lCSBe(A I ,0TA%80 7t lCSBeS2J]3(A I ,0TA%80 7t lCSBeS2J]79A!O#2M"?E7/P' e nSS w\4SSi '1ud(A!O#2M"?E7/P'/P' e nTsDs!2A!O#2M"?E7/P'^2W/P' e nTsDs!D]02A!O#2M"?E7/P'^2W/P' e nTsDs!D]02A!O#2M"?E7/P'^2W/P' e nTsDs!D]02A!O#2M"?E7/P'^2W/P' e nTsDs!D]02A!O#2M"?E7/P'^2P/P' e nTsDs!D]02A!O#2M"?E7/P'^2P/P' e nTsDs!D]12A!O#2M"?E7/P'^2P/P' e nTsDs!D]17A!O#2M"?E7/P'ne oa/P'ne &t(A I ,0TA%80 7t lCSBeS2J]1(A I ,0TA%80 7t lCSBeS2J]2(A I ,0TA%80 7t lC