George v Mobil Oil Micronesia Inc [2002] FMSC 41; 10 FSM Intrm. 590 (Pon. 2002) (5 April 2002)

FEDERATED STATES OF MICRONESIA
SUPREME COURT TRIAL DIVISION
Cite as George v Mobil Oil Micronesia Inc, [2002] FMSC 41; 10 FSM Intrm. 590 (Pon. 2002)

ELAINE GEORGE, a minor, through her next friend, MARKO EHSA,
Plaintiff,

vs.

MOBIL OIL MICRONESIA, INC., MOBIL OIL CORPORATION and MOBIL OIL GUAM, INC.,
Defendants.

CIVIL ACTION NO. 1999-038

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

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HEADNOTES

Civil Procedure - Summary Judgment
When the plaintiff offered no objection to the defendants' expert's competent opinion and does not point to any part of the record that contains a countervailing, competent opinion based on the facts of the case that is sufficient to raise an issue of fact, summary judgment for the defendants is appropriate. George v. Mobil Oil Micronesia, Inc., [2002] FMSC 41; 10 FSM Intrm. 590, 592 (Pon. 2002).

Civil Procedure - Summary Judgment; Evidence - Expert Opinion
When the defendants' expert has testified, and the plaintiff conceded, that gasoline and kerosene are completely miscible, when the plain inference from expert's miscibility testimony is that the fuel which first burned normally was identical in its chemical makeup to the fuel which the plaintiff later claimed exploded, and when the defendant offers nothing in her response to address the anomaly created by the expert's specific testimony on the miscibility point as it relates to her memory of what occurred, in the absence of such evidence, and given the expert's competency to opine on a verifiable physical phenomenon like miscibility, no issue of fact exists on this specific point. George v. Mobil Oil Micronesia, Inc., [2002] FMSC 41; 10 FSM Intrm. 590, 592 (Pon. 2002).

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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 Elaine George's response, and Mobil's reply. Mobil's motion is granted.

Mobil's January 21, 2002, and January 24, 2002, motions for enlargement of time are granted. All remaining pending motions are denied as moot.

Marko Ehsa ("Ehsa") is the grandmother of the plaintiff Elaine George ("George"). Ehsa testified at her deposition - taken on December 16, 1999, or one month short of eight years after the events in question - as follows.

On January 16, 1992, Ehsa filled a cold kerosene stove using fuel that she had gotten from Silver Rose Service Station. Before she filled the stove, the fuel gauge on the stove indicated that the stove was empty. She then lit the stove, which she accomplished without incident, and placed a pot of soup on the stove. The stove burned uneventfully for at least two minutes, and then the cap of the fuel tank blew off and the stove and the pot fell over. Burning kerosene spilled across the floor to where the then three year old George was sitting. The stove was burned and blackened but not blown apart. Both the stove and the what was left of the kerosene that was used to fill the stove were discarded.

The court has in its order and memorandum entered today in Suldan v. Mobil Oil Micronesia, Inc., [2002] FMSC 11; 10 FSM Intrm. 574 (Pon. 2002), addressed the question of an expert's role in a motion for summary judgment in cases like the one at bar, and the court will not repeat here what is said at some length there. Suffice it to say that a part of the record in this case is the transcript of Dr. Joseph Shepherd's testimony in Lebehn v. Mobil Oil Micronesia, Inc., [2001] FMSC 28; 10 FSM Intrm. 348 (Pon. 2001).[1] Dr. Shepherd is Mobil's expert witness, and is competent to render an expert opinion under Rules 702-704 of the FSM Rules of Evidence. In his testimony in Lebehn, a transcript of which is attached to Mobil's motion for summary judgment as exhibit "F," Dr. Shepherd opined on the causation question in this case. Dr. Shepherd offered a summary of operative events that was essentially the same as that described by Ehsa[2] in her deposition. Exhibit "F" to Mobil's Motion for Summary Judgment at 110. He testified that the accident as described was physically not possible, and that he believed that the stove was accidently upset or that the cookware fell over and the stove then overturned. Id. George offered no objection to this opinion either in the course of Lebehn, or in this case as it has been submitted through the transcript of Dr. Shepherd's testimony in Lebehn. Nor does George point to any part of the record that contains a countervailing, competent opinion based on the facts of this case that is sufficient to raise an issue of fact. On this state of the record, summary judgment is appropriate. United States v. Various Slot Machines on Guam[1981] USCA9 1539; , 658 F.2d 697, 700-01 (9th Cir. 1981).

The court also notes one specific aspect of Dr. Shepherd's testimony in Lebehn as it relates to causation in the case at bar. Dr. Shepherd testified, and plaintiff conceded, that gasoline and kerosene are completely miscible. This means that they mix completely because they are made up of similar molecules, and that they will not "unmix" - i.e., if permitted to stand undisturbed, the mixture would not separate out into its component parts of gasoline and kerosene, but would remain an homogenous mixture. Ehsa testified that the stove burned for at least two minutes without incident - i.e., in the same way it would have if it had been filled with kerosene - before exploding. But the plain inference from Dr. Shepherd's miscibility testimony is that the fuel which first burned normally was identical in its chemical makeup to the fuel which Ehsa later claimed exploded. As far as the court can determine, George offers nothing in her response to Mobil's motion for summary judgment to address the anomaly created by Dr. Shepherd's specific testimony on the miscibility point as it relates to Ehsa's memory of what occurred. In the absence of such evidence, and given Dr. Shepherd's competency to opine as an expert on a verifiable physical phenomenon like miscibility, no issue of fact exists on this specific point.

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

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^[1] Also today, the court enters orders granting motions for summary judgment in William v. Mobil Oil Micronesia, Inc., [2002] FMSC 42; 10 FSM Intrm. 584 (Pon. 2002) and Adolip v. Mobil Oil Micronesia, Inc., [2002] FMSC 12; 10 FSM Intrm. 587 (Pon. 2002). These two cases, Suldan, Lebehn, and the case at bar all deal with injuries that allegedly resulted from contaminated kerosene sold by Mobil. Counsel in all of these cases are the same.

^[2] The medical record from George's treatment at Pohnpei hospital makes no mention of burning kerosene as the cause of the burns, and states variously that "unfortunately a pot of soup poured on her [Elaine's] face and extremities"; "3 yrs old child F brought to ER & crying. While eating unfortunately a pot of soup poured to her body due to floor fell on the ground"; and "3 Y O female brought into ER via grandma's & burns on the face & the abd & extremities from soup."