UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF FLORIDA

PENSACOLA DIVISION

EMERALD COAST UTILITIES

AUTHORITY, 

 

 Plaintiff,

v. Case No. 3:20cv5986/MCR/ZCB 

AMERICAN CAST IRON PIPE 

COMPANY; VULCAN PIPE & STEEL 

COATINGS, INC.; and INDURON 

COATINGS, LLC, 

 Defendants.

 / 

ORDER

This matter is before the Court on motions for summary judgment filed by 

Defendants American Cast Iron Pipe Company and Induron Coatings, LLC. See

ECF Nos. 70, 72.1

I. Background2

This action involves a dispute over the alleged premature corrosion and failure 

of ductile iron pipe internally lined with a ceramic epoxy called “Protecto 401” 

1 The Court previously ruled on the parties’ respective motions to exclude expert testimony 

and opinions under Federal Rule of Evidence 702 and Daubert v. Merrell Dow Pharm., Inc., 509 

U.S. 579 (1993), and American’s motion for partial summary judgment. See Order, ECF No. 94. 

2 Most of the relevant facts were detailed in a prior Order. See id. at 1-5. The Court now

restates and supplements many of those same facts to correspond with new issues presented in the 

instant motions. 

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(“P401”), which was used in two sewer pipeline construction projects commissioned 

by Plaintiff Emerald Coast Utilities Authority (“ECUA”) in Escambia County, 

Florida. Defendant American Cast Iron Pipe Company (“American”) manufactured 

the unlined ductile iron pipes used in the two projects, Defendant Induron Coatings, 

LLC (“Induron”) manufactured the P401 coating, and Defendant Vulcan Pipe and 

Steel Coatings, Inc. (“Vulcan”) applied Induron’s P401 coating to American’s 

pipes.3

 ECUA alleges that, due to each defendant’s negligence, the P401 coating 

failed to adequately protect the interior metal surfaces of both sewer pipelines, 

resulting in leaks and/or corrosion, and also that the defendants misrepresented the 

quality and fitness of P401-lined pipes, which ECUA relied on to its detriment in 

selecting them for use in the projects. The facts relevant to the instant motions, 

construed in the light most favorable to ECUA, the non-moving party, are as 

follows.4

ECUA operates the sewer system in Escambia County, Florida. In early 2006, 

ECUA began the process of upgrading Escambia County’s sewer system by, among 

other things, building a new sewer plant and associated pipelines. As relevant to the 

3 Defendant Vulcan and ECUA have settled the claims against Vulcan. See Notice of 

Settlement, ECF No. 57. American and Induron will be referred to collectively in this Order as 

“Defendants.” 

4 At the summary judgment stage, a court must construe the facts in the light most favorable 

to the non-moving party. Lujan v. Nat’l Wildlife Fed’n, 497 U.S. 871, 888-89 (1990); Zaben v. 

Air Prods. & Chems., Inc., 129 F.3d 1453, 1455 (11th Cir. 1997). All disputed facts must be 

resolved in the non-movant’s favor, and all reasonable inferences arising from those facts must be 

drawn in its favor. Id.

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instant motion, ECUA contracted with Utility Service Co., Inc. (“USC”) to construct 

one of the pipelines (known as the Blue Angel Project), and procured ductile iron 

pipe for that project from Defendants through USC.5

 See Second Amended 

Complaint, ECF No. 38 at ¶ 11. 

ECUA’s original specifications called for the use of PVC pipe in the projects. 

That changed, however, after a series of in-person meetings and phone calls between 

ECUA and representatives for Defendants. More specifically, ECUA’s design 

engineers provided American with the plans and specifications for the pipeline 

projects, see William Carter Dep., ECF No. 80-1 at 29, and met with representatives 

of all three defendants for site visits in Birmingham, Alabama. While there, ECUA 

received presentations and promotional materials from Defendants about the 

attributes and quality of P401-lined ductile iron pipes for “tough” domestic sewer 

applications. See ECUA Am. Interrog. Resp., ECF No. 69-1 at 3. According to 

ECUA, its representatives also discussed with Defendants their “primary concerns” 

regarding P401-lined ductile iron pipe; namely, whether it could handle the 

“extreme[]” levels of corrosivity expected to exist in ECUA’s pipelines. See Patrick 

Byrne Aff., ECF No. 88-2 at 3-5. In response—again, according to ECUA—both 

5 Utility Service Co., Inc. was contracted to construct a pipeline known as the Blue Angel 

Force Main Replacement. Morgan Contracting, Inc. was contracted to construct a second pipeline, 

known as Central Water Reclamation Facility Government Street Regional Lift Station & Regional 

Lift Station B.

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American and Induron assured ECUA that the product would withstand the 

anticipated levels of corrosivity and was suitable for ECUA’s particular project 

specifications. See id. This information “convinced ECUA that P401-lined ductile 

iron pipe would be suitable for” its current domestic sewer projects, as well as for 

others in the future. See Bruce Neu Affidavit, ECF No. 59-2 at 4. Soon thereafter, 

American contacted ECUA directly to request that the project specifications be 

modified to allow for the use of P401-lined ductile iron pipe “as a reasonable and 

practical additive alternate” for PVC pipe. See id. The modification was 

subsequently approved, id., and inserted into the project specifications as an 

addendum, see Blue Angel Project Plans Addendum 1, ECF No. 59-1 at 10. 

Consistent with ECUA’s project specifications, USC contracted with 

American to obtain the P401-lined ductile iron pipe “on behalf of and at the direction 

of ECUA” in early 2008. See ECUA Response, ECF No. 59 at 4. As agreed, 

American manufactured ECUA’s ductile iron pipes, Induron produced the P401 

coating, and Vulcan applied the P401-coating to the interior metal surfaces of the 

pipes, which were then delivered to USC and used in the construction of ECUA’s 

domestic sewer pipelines.6

 The Blue Angel pipeline went into service later that same 

6 Each “batch” of P401 produced by Induron had two components—the epoxy resin and 

an activator—that were shipped together to Vulcan. See White 30(b)(6), ECF No. 71-1 at 5, 10-

11. Vulcan mixed the epoxy and the activator, then applied the mixture to the subject pipes. See

id. at 14-17. There is no evidence or argument in this case, at least not in connection with the 

instant motions, that the P401 was applied improperly.

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year, see Nixon Dep., ECF No. 68-1 at 39, 44 & 47, and the alleged premature 

corrosion and failure of various sections of that pipeline was discovered in January 

2017, see id. at 47. This suit followed. 

ECUA’s complaint asserts four claims against American and Induron: 

negligence, negligent misrepresentation, breach of implied warranty of 

merchantability, and breach of implied warranty of fitness for a particular purpose.7

 

The Court has already granted American’s motion for partial summary judgment on 

the implied warranty claims. American now moves for summary judgment on 

ECUA’s negligent manufacturing and negligent misrepresentation claims, and 

Induron moves for summary judgment on all claims. 

II. Legal Standard

Summary judgment is appropriate where the record reflects there are no 

genuine disputes of material fact and the moving party is entitled to judgment as a 

matter of law. See Fed. R. Civ. P. 56; see also Celotex Corp. v. Catrett, 477 U.S. 

317, 322-23 (1986). A fact is “material” if, under the applicable substantive law, it 

might affect the outcome of the case. Hickson Corp. v. N. Crossarm Co., 357 F.3d 

1256, 1259-60 (11th Cir. 2004). A dispute of fact is “genuine” if “the evidence is 

7 Again, the claims against Vulcan have been settled. See Notice of Settlement, ECF No. 

57.

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such that a reasonable jury could return a verdict for the nonmoving party.” 

Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). 

The moving party bears the initial burden of “informing the court of the basis 

for its motion and of identifying those materials that demonstrate the absence of a 

genuine issue of material fact.” Rice-Lamar v. City of Fort Lauderdale, 232 F.3d 

836, 840 (11th Cir. 2000) (citing Celotex, 477 U.S. at 323). Once that burden is met, 

the nonmoving party must “go beyond the pleadings” and present competent record 

evidence showing the existence of a genuine, material factual dispute for trial. 

Celotex, 477 U.S. at 324. In doing so, and to avoid summary judgment, the 

nonmoving party “must do more than simply show that there is some metaphysical 

doubt as to the material facts.” Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 

475 U.S. 574, 586 (1986). The “mere existence of a scintilla of evidence” supporting 

the nonmovant’s case is insufficient to defeat a motion for summary judgment. 

Liberty Lobby, 477 U.S. at 252. In assessing whether a movant is entitled to 

summary judgment, a court must view the evidence and factual inferences drawn 

therefrom in the light most favorable to the non-moving party. See id. at 255; Allen 

v. Tyson Foods, 121 F.3d 642, 646 (11th Cir. 1997). Ultimately, summary judgment 

must be entered where “the nonmoving party has failed to make a sufficient showing 

on an essential element of [its] case with respect to which [it] has the burden of 

proof.” Celotex, 477 U.S. at 323.

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III. Discussion

Both defendants seek summary judgment on ECUA’s claims for negligent 

manufacturing and negligent misrepresentation, and Induron separately seeks 

summary judgment on the implied warranty claims. 

A. Negligent Manufacturing (Counts I & III)

ECUA alleges that American negligently manufactured the subject ductile 

iron pipes, and Induron negligently manufactured the P401 coating, which resulted 

in biogenic sulfide corrosion and leaks in ECUA’s domestic wastewater pipeline. 

These claims fail as a matter of law for a fairly fundamental reason. A claim for 

negligent manufacturing under Florida law requires evidence of a defect in the 

subject product. See Savage v. Danek Med., Inc., 31 F. Supp. 2d 980, 983 (M.D. 

Fla. 1999); Humphreys v. Gen. Motors Corp., 839 F. Supp. 822 (N.D. Fla. 1993). In 

the case of alleged latent defects, as here, that evidence must be in the form of expert 

testimony. See Citizens Prop. Ins. Corp. v. Simkar LLC, 813 F. Supp. 2d 1356, 1362 

(M.D. Fla. 2011); Humphreys, 839 F. Supp. at 826-27. ECUA has offered no 

evidence—expert or otherwise—that either American’s unlined ductile iron pipes, 

Induron’s P401 coating, or the finished P401-lined pipes were defective. To the 

contrary, ECUA’s own expert, Robert Nixon, testified that there is no “data to 

support” a conclusion that a manufacturing defect existed in the P401 coating or the

ductile iron pipes. See Nixon Dep., ECF No. 68-1 at 92, 123, 191. 

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Essentially conceding the absence of direct evidence of a defect, ECUA 

instead offers a res ipsa loquitur argument that the pipe failures in this case “could 

not have occurred” in the absence of a manufacturing defect. More specifically, 

ECUA argues that it is entitled to a rebuttable inference of manufacturing negligence 

because: (1) Defendants claim P401 lining has been proven to successfully protect 

against corrosion in laboratory testing and “hundreds” of domestic sewer 

applications; (2) the P401 here failed to protect against corrosion in ECUA’s 

domestic sewer pipelines; (3) Induron had control of the subject P401 until the P401-

lined pipes were “handed off to” ECUA; and (4) ECUA has “adequately refuted”

any reasonable alternative theories as to potential causes for the P401 failures while 

in ECUA’s control. See ECUA Response to Induron, ECF No. 88 at 16-17. This is 

incorrect.

The doctrine of res ipsa loquitur is an evidentiary “doctrine of extremely 

limited applicability” that permits a rebuttable inference of negligence in the absence 

of direct proof of negligence where a plaintiff first establishes that: (1) the product 

at issue was within the exclusive control of the defendant at the time of the injury, 

both as to operation and inspection; and (2) the injury-producing event is of a type 

that ordinarily does not occur in the absence of negligence by the one in control.

8

 

8 Florida’s intermediate appellate courts also “have long recognized as an essential element 

of the doctrine of res ipsa loquitur that the injury may not be the result of any voluntary action or 

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See Otis Elevator Co. v. Chambliss, 511 So. 2d 412, 413-14 (Fla. 1st DCA 1987) 

(citing Goodyear Tire & Rubber Co. v. Hughes Supply, Inc., 358 So.2d 1339 (Fla. 

1978)); Holman v. Ford Motor Co., 239 So. 2d 40, 44 (Fla. 1st DCA 1970). ECUA 

has not satisfied even the first element of this standard. 

Briefly, it is undisputed that the P401-lined ductile iron pipe at issue here was 

not within Defendants’ exclusive control or responsibility at the time of the corrosion 

failures, and had not been for more than seven years. Indeed, once the subject pipes 

were delivered to ECUA in 2008, Defendants had no further contact or involvement 

with them until the first failures began in 2015. In the interim, the pipes were 

installed in ECUA’s domestic sewer system by a government contractor and, for 

years thereafter, the pipes transported municipal sewage through inherently 

corrosive internal environmental conditions to a wastewater treatment facility. 

Defendants did not design, install, operate, inspect, repair, or perform maintenance 

on ECUA’s sewer system. Thus, on this record, there is no evidence to support a 

finding that Defendants had any control or responsibility for the subject pipes after 

ECUA took delivery of them in 2008. Only ECUA and/or its agents did. ECUA’s 

attempted invocation of res ipsa loquitur fails on this basis. See, e.g., Goodyear 

Tire, 353 So. 2d at (exclusive control requirement not met in tire blowout cases 

contribution on the part of the plaintiff.” See Otis Elevator Co. v. Chambliss, 511 So. 2d 412, 414 

n.5 (Fla. 1st DCA 1987) (collecting cases). This element is not at issue here.

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where blowout occurred after allegedly defective tire had been in plaintiff’s 

possession and control for one month, and had been driven 9,000 miles).

ECUA also has failed to satisfy the second requirement of the res ipsa

standard because it has not established that an injury-producing event of the kind 

alleged in this case—i.e., corrosion of the interior metal surfaces of a domestic sewer 

pipeline—would not, in the ordinary course of events, occur in the absence of a 

manufacturing defect. See Goodyear Tire, 358 So. 2d at 1341-42. Res ipsa loquitur

presupposes that an event would not have happened “but for” a manufacturing 

defect. See McDougald v. Perry, 716 So. 2d 783, 785 (Fla. 1998). While this 

standard does not require a plaintiff to “eliminate with certainty all other possible 

causes” of its injury, there must be “evidence from which a reasonable person can 

say that on the whole it is more likely [than not that]” manufacturing negligence was 

involved. See id. at 786; Goodyear, 358 So. 2d at 1341 (plaintiff must “establish 

that the circumstances attendant to the injury are such that...negligence is the 

probable cause and the defendant is the probable actor”). Expert evidence on the 

issue is typically required, except in “rare instances” where the underlying facts “in 

and of themselves” establish “but for” negligence as a matter of “common sense” 

and “human experience.” See McDougald, 716 So. 2d at 785-86 (explaining 

common sense understanding that trains generally do not derail, elevators do not 

freefall, and boilers do not explode, absent negligence). 

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In this case, there can be no reasonable dispute that the causes of biogenic 

sulfide corrosion failures in a domestic wastewater pipeline are beyond the common 

sense and experience of the average lay juror (and the average federal court, for that 

matter). Those sorts of determinations require an understanding of the 

interrelationship between the potential corrosive effects of domestic sewage, the 

chemical environment within a particular pipeline, and the performance capacity of 

the protective pipe coating. And often even a thorough understanding of the relevant 

factors is not enough. As the instant evidentiary record demonstrates, seasoned 

domestic wastewater industry professionals, including chemists and technical 

engineers, routinely struggle to identify the cause of specific corrosion failures.9

 

Consequently, corrosion failures do not fall within the “rare instances” where the 

facts, in and of themselves, bespeak negligence as a matter of common knowledge, 

sense, and experience. See id. at 785. Rather, expert testimony is necessary to 

explain how and why the failures could not have occurred but for manufacturing 

negligence, particularly given the expert evidence from both sides agreeing that 

biogenic sulfide corrosion can be caused abnormally aggressive environmental 

conditions inside a pipeline alone.

10 It is undisputed that ECUA has not offered any 

9 See, e.g., Order dated March 29, 2003, ECF No. 94 at 16 & n.8 (discussing American, 

Induron, and/or independent third-party labs’ inability to definitively determine cause of corrosion 

failures in Sarasota, Florida; Columbus, Georgia; Carrboro, North Carolina; and Kissimmee, 

Florida).

10 Compare Paschke Rep., ECF No. 86 at 17-18 (describing conditions known to promote 

an “abnormally corrosive environment” inside a wastewater pipeline), with Nixon Rebuttal, ECF 

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such testimony. To the contrary, and as already discussed, ECUA’s own expert, 

Robert Nixon, testified there is no “data to support” a conclusion that manufacturing 

negligence was involved here. See Nixon Dep., ECF No. 68-1 at 92, 123, 191. 

Because there is no expert evidence or “fund of common knowledge” that would 

enable lay jurors to reasonably infer negligence from the mere fact of the corrosion 

failures, see McDougald, 716 So. 2d at 786, ECUA has not satisfied the second 

requirement of the res ipsa standard. 

In sum, the Court finds ECUA has not provided competent evidence of the 

existence of a manufacturing defect, or of its entitlement to a rebuttal inference of 

manufacturing negligence under the doctrine of res ipsa loquitur. Thus, there are no 

genuine disputes of material fact, and Defendants are entitled to judgment as a matter 

of law, on ECUA’s negligent manufacturing claims. 

B. Negligent Misrepresentation (Counts IV & VI)

ECUA asserts negligent misrepresentation claims against both Defendants. 

Defendants argue summary judgment is proper on grounds that ECUA has not 

shown the existence of a material misrepresentation by either Induron or American, 

or justifiable reliance.11 The Court disagrees. 

No. 68-4 at 6 (“completely concur[ring] with” Paschke’s description of the conditions that promote 

biogenic sulfide corrosion in wastewater pipelines); see also Nixon Dep., ECF No. 68-1 at 94 

(agreeing that certain environmental conditions “do make a [pipeline] more aggressive than it 

would be” without those conditions).

11 To establish a negligent misrepresentation claim under Florida law, a party must show: 

“(1) a misrepresentation of material fact that the defendant believed to be true but which was in 

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1. Material Misrepresentations

To establish its negligent misrepresentation claims, ECUA first must show 

“false statements of material fact” by Defendants. Arlington Pebble Creek, LLC v. 

Campus Edge Condo. Ass’n, Inc., 232 So. 3d 502, 505 (Fla. 1st DCA 2017). “A fact 

is material if, but for the alleged nondisclosure or misrepresentation, the complaining 

party would not have entered into the transaction.” Atl. Nat’l Bank of Fla. v. Best, 

480 So. 2d 1328, 1332 (Fla. 2d DCA 1985). Unless the facts are undisputed, 

materiality is a question of fact for a jury. Id. 

Defendants argue there is no question of fact on materiality because the 

evidence offered by ECUA in support of this element is either (a) immaterial and 

non-actionable puffery; or (b) inadmissible because the evidence—more 

specifically, an affidavit by Patrick Byrne, a former ECUA engineer, who recounts 

representations alleged made by Defendants regarding the suitability of P401-lined 

ductile iron pipe for ECUA’s pipelines—is in the form of a sham affidavit that must 

be disregarded because it “directly contradicts” earlier Rule 30(b)(6) deposition 

testimony given by ECUA’s corporate representative, Stacy Hayden. This is 

incorrect. 

fact false; (2) that defendant should have known the representation was false; (3) the defendant 

intended to induce the plaintiff to rely on the misrepresentation; and (4) the plaintiff acted in 

justifiable reliance upon the misrepresentation, resulting in injury.” Arlington Pebble Creek, LLC 

v. Campus Edge Condo. Ass’n, Inc., 232 So. 3d 502, 505 (Fla. 1st DCA 2017). Only the first and 

fourth elements are at issue in this case.

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First, ECUA has presented evidence that Defendants made statements that 

amounted to more than puffery. In Florida, sellers “are given some latitude in 

enhancing the quality or value of their wares” during the sales process. See Mfg. 

Rsch. Corp. v. Greenlee Tool Co., 693 F.2d 1037, 1040 (11th Cir. 1982). 

Expressions of opinion made to “puff” a product generally “are not actionable in 

misrepresentation even if untrue on the theory that no reasonable person would rely 

on general claims of superiority made by a salesman.” Id.; see also Mejia v. Jurich, 

781 So. 2d 1175, 1177 (Fla. 3d DCA 2001). However, “where the person expressing 

the opinion is one having superior knowledge of the subject of the statement and the 

plaintiff can show that said person knew or should have known from facts in his or 

her possession that the statement was false, then the opinion may be treated as a 

statement of fact.” Id. And, of course, “statements misrepresenting a product or 

falsely ascribing benefits or virtues to a product are actionable.” Id. at 1041 

(emphasis added). 

True, several of Defendants’ alleged misrepresentations do constitute puffery. 

For example, statements that P-401 is “gangbusters” against hydrogen sulfide 

corrosion, see Hayden Dep., ECF No. 69-3 at 60-61, or that “[n]othing protects tough 

sewer pipe applications more effectively than ductile iron pipe and fittings lined with 

Induron’s” P401 ceramic epoxy, see ECUA Am. Interrog. Resp., ECF No. 69-1 at 

3, are too hyperbolic and/or vague to be considered objective representations of 

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material fact about the characteristics and capabilities of P401-lined ductile iron 

pipe. See MDVIP, Inc. v. Beber, 222 So. 3d 555, 561-62 (Fla. 4th DCA 2017); 

Holmes v. Behr Process Corp., No. 2:15cv454, 2015 WL 7252662, at *3 (N.D. Ala. 

Nov. 17, 2015).12 Statements of that nature are not actionable under Florida law. 

With that said, ECUA’s negligent misrepresentation claims also are supported with 

evidence of factual statements by Defendants ascribing specific and material 

properties to P401-lined ductile iron pipe during the Birmingham visit. More 

specifically, Patrick L. Byrne, a Professional Engineer who participated in the visit 

on behalf of ECUA, submitted an affidavit (“Byrne affidavit”) stating that, while 

there, the parties “specifically discussed...in detail” one of ECUA’s “primary 

concerns” regarding P401-lined ductile iron pipe, which was “the potential for 

failures and leaks due to corrosion resulting from potential hydrogen sulfide gas 

problems[,]” and whether P401 “would be able to handle the anticipated levels of 

corrosivity[.]” See Byrne Aff., ECF No. 88-2 at 3-4. According to Byrne, all three 

defendants represented that P401 “was able to withstand extremely corrosive 

12 See MDVIP, Inc. v. Beber, 222 So. 3d 555, 561-62 (Fla. 4th DCA 2017) (statements that 

defendant health care organization would provide “exceptional doctors,” “the best hospitals and 

doctors” and the “finest national specialists” were non-actionable puffery); Wasser v. Sasoni, 652 

So. 2d 411, 412 (Fla. 3d DCA 1995) (seller’s representations that an apartment building was “a 

very good building requiring normal type of maintenance” and “an excellent deal” were puffing 

and not fraudulent misrepresentations); see also Holmes v. Behr Process Corp., No. 2:15cv454, 

2015 WL 7252662, at *3 (N.D. Ala. Nov. 17, 2015) (applying Alabama law) (salesman’s alleged 

representation that subject product was “a high quality primer suitable for adhering to both plaster 

and sheetrock/drywall walls and ceilings” was “nothing more than puffery”).

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environments . . . [,] would be suitable for [ECUA’s] particular plans[,] and would 

withstand the anticipated corrosion” conditions. Id. Byrne said that all three 

defendants also provided “specific technical data and testing” reports to substantiate

those representations. See id. at 4; see also Induron P401 Standards Booklet, ECF 

No. 88-1 at 201-45. Byrne’s affidavit is corroborated by Bruce Neu, a project 

engineer for the subject pipelines who also attended the Birmingham visit, and who 

testified that Defendants, including Induron, “marketed” and “represent[ed]” P401 

as able to withstand the anticipated high concentrations of biogenic sulfides in 

ECUA’s pipeline. See Neu Dep., ECF No. 69-5 at 24-25. Moreover, at least one 

American sales representative confirmed that “from what little [he] can remember,” 

he did “have discussions with [Byrne] regarding the potentially aggressive nature of 

[ECUA’s] line and the use of P401[-lined ductile iron pipe] to protect it.” See Carter 

Dep., ECF No. 59-3 at 16. Based on this evidence, a reasonable jury could conclude

that Defendants’ statements were more than just puffing, that Defendants 

specifically knew and understood ECUA’s unique domestic wastewater needs and, 

using their superior knowledge and experience with P401-lined ductile iron pipes,

represented that their products would meet those needs. And given Defendants’ 

asserted position in this case—i.e., that P401-lined ductile iron pipe is suitable only 

for “typical” domestic wastewater applications, as opposed to “overly aggressive”

ones, like ECUA’s, see, e.g., Jeffers 30(b)(6) Dep., ECF No. 71-2 at 32, 65-66—a 

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reasonable jury also could conclude that Defendants knew or should have known 

their representations about the suitability of P401-lined ductile iron pipe for ECUA’s 

pipelines were false. See N. Am. Med. Corp. v. Axiom Worldwide, Inc., 522 F.3d 

1211, 1225 n.12 (11th Cir. 2008) (“Whether a statement is literally false is a finding 

of fact.”). Taken together, this evidence is more than sufficient to create a question 

of fact regarding whether Defendants made a false statement of material fact to 

ECUA. See Atlantic Nat’l, 480 So. 2d at 1332. 

Perhaps recognizing that the Byrne affidavit would be largely determinative 

for the negligent misrepresentation claim for summary judgment purposes, 

Defendants argue that the affidavit should be disregarded as a sham because, in their 

view, it directly contradicts the Rule 30(b)(6) deposition of ECUA’s corporate 

representative, Stacy Hayden, without a sufficient explanation of the discrepancies. 

The Court disagrees. 

It is true that a party cannot create a genuine dispute of material fact by filing 

an affidavit that flatly contradicts, without explanation, the affiant’s previously given 

deposition testimony giving “clear answers to unambiguous questions which negate 

the existence of any genuine issue of material fact.” See Van T. Junkins & Assocs., 

Inc. v. U.S. Indus., Inc., 736 F.2d 656, 657-58 (11th Cir. 1984). When that occurs, 

a court may disregard the affidavit as a sham manufactured to circumvent summary 

judgment on an otherwise factually unsupported claim. See id.; see also Tippens v. 

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Celotex Corp., 805 F.2d 949, 953 (11th Cir. 1986); Lane v. Celotex Corp., 782 F.2d 

1526, 1529 (11th Cir. 1986) (quoting Radobenko v. Automated Equip. Corp., 520 

F.2d 540, 544 (9th Cir. 1975) (“[T]he very object of summary judgment is to separate 

real and genuine issues from those that are formal or pretended.”). However, not 

every discrepancy between prior testimony and a subsequent affidavit justifies 

application of the sham affidavit rule. An affidavit should not be disregarded if it 

merely “supplements earlier testimony, presents a variation of testimony, or 

represents instances of failed memory.” Pashoian v. GTE Directories, 208 F. Supp. 

2d 1293, 1299 (M.D. Fla. 2002) (citing Rollins v. TechSouth, Inc., 833 F.2d 1525, 

1530 (11th Cir. 1987)). In those circumstances, any inconsistencies would create 

issues of credibility and weight of the evidence that require resolution by the trier of 

fact. See Tippens, 805 F.2d at 953-54.13 Only an affidavit that is “inherently 

irreconcilable” with an affiant’s earlier testimony may be disregarded. See id. at 954 

& n.6.

Applying those principles here, Defendants’ sham affidavit argument fails for 

two reasons. First, while the Court may reject a witness’s affidavit where it directly 

contradicts that same witness’s prior deposition testimony, the same is not true of an 

13 Tippens v. Celotex Corp., 805 F.2d 949, 953-54 (11th Cir. 1986) (“To allow every failure 

of memory or variation in a witness’s testimony to be disregarded as a sham would require far too 

much from lay witnesses and would deprive the trier of fact of the traditional opportunity to 

determine which point in time and with which words the witness (in this case, the affiant) was 

stating the truth.”). 

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affidavit that allegedly contradicts another witness’s deposition. See Ward v. City 

of Birmingham, No. 2:12cv257, 2013 WL 541429, at *9 (N.D. Ala. Feb. 8, 2013); 

Duvall Chems. v. Osterman & Co., Inc., No. 4:04cv059, 2006 WL 6848733, at *2 

(N.D. Ga. Mar. 14, 2006). As the Ninth Circuit observed, 

[t]he rationale underlying the sham affidavit rule is that a party ought 

not be allowed to manufacture a bogus dispute with himself to defeat 

summary judgment. That concern does not necessarily apply when the 

dispute comes from the sworn deposition testimony of another witness.

Nelson v. City of Davis, 571 F.3d 924, 928 (9th Cir. 2009); see also McCall v. 

Houston Cnty., 2014 WL 3045552, at *3 n.8 (M.D. Ala. July 3, 2014) (“To reject an 

affidavit [that contradicts another witness’s deposition] would amount to nothing 

more than the judgment that one witness is credible and the other is not; it is 

elementary that such determinations are inappropriate at summary judgment.”); 

Ward, 2013 WL 541429, at *9; Duval Chems., 2006 WL 6848733, at *2. Here, 

because Induron does not claim that Byrne testified in contradiction to his own

affidavit—and instead claims only that the affidavit allegedly contradicts the 

testimony of another witness, Stacy Hayden—the sham affidavit rule is inapplicable.

Even assuming the sham affidavit rule applied in this context, however, 

Induron’s argument would fail on the merits because there is no contradiction or 

inherent inconsistency between Hayden’s deposition testimony and the Byrne 

affidavit. Hayden, as ECUA’s corporate representative, testified that he was not 

present at the Birmingham visit and did not personally know the specific content of 

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representations made to ECUA there. See Hayden Dep., ECF No. 69-3 at 188-93. 

However, Hayden also identified the ECUA staff members who were present 

(including Byrne) and testified that he understood from them that Defendants gave 

presentations on the suitability of P401-lined ductile iron pipe for ECUA’s domestic 

wastewater needs, and provided brochures and other technical data to substantiate 

its representations that P401 would protect ECUA’s system from hydrogen sulfide 

corrosion for the anticipated 100-year life of the pipe. See Hayden Dep., ECF No. 

69-3 at 17-18, 22-24, 42-43, 60-61. The Byrne affidavit does not contradict 

Hayden’s testimony. Rather, it supplies the details that Hayden was unable to 

provide himself—that is, it recounts Defendants’ alleged specific representations 

and describes the precise documentary materials about P401-lined ductile iron pipe

that were provided to ECUA at the Birmingham visit—based on the firsthand 

knowledge of a witness, Byrne, who was in personal attendance. Because the Byrne 

affidavit merely supplements Hayden’s testimony, and its contents are readily 

reconcilable with that testimony, it cannot be disregarded as a sham under applicable 

law. See Pashoian, 208 F. Supp. 2d at 1299 (citing Rollins, 833 F.2d at 1530). And, 

as the Court has already found, the entirety of the record evidence raises genuine 

disputes of material fact on the first element of ECUA’s negligent misrepresentation 

claims. 

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In short, Defendants’ puffery and sham affidavit arguments fail as a matter of 

Florida and federal law, respectively. Therefore, summary judgment on those 

grounds is denied.

2. Justifiable Reliance

Defendants also argue ECUA cannot satisfy the justifiable reliance element 

of its negligent misrepresentation claim because there is no evidence that ECUA 

relied solely on Defendants’ representations or even at all. This argument is readily 

rejected. There is no requirement that a plaintiff’s reliance on a defendant’s alleged 

misrepresentations be the “sole or even the predominant cause of [the plaintiff’s] 

decision to purchase [a product]” so long as the plaintiff’s “reliance is a substantial 

factor in determining the course of conduct that results in his loss.” Specialty Marine 

& Indus. Supplies, Inc. v. Venus, 66 So. 3d 306, 311 (Fla. 1st DCA 2011). ECUA 

has offered evidence that it sought and relied on Defendants’ recommendations 

about the suitability of P401-lined ductile iron pipe for its domestic wastewater 

pipeline needs. See, e.g., Hayden Dep., ECF No. 69-3 at 17-23; (testifying that 

ECUA staff relied on “all the information that was provided” by American and 

Induron’s “technical” and “sales folks” in selecting P401-lined ductile iron pipe); 

Neu Dep., ECF No. 69-5 at 106-13 (explaining that Defendants’ presentations at the 

Birmingham visit persuaded ECUA representatives that P401-lined ductile iron pipe 

would protect ECUA’s pipeline from corrosion); Byrne Affidavit, ECF No. 88-2 

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(detailing Defendants’ specific representations that “convinced ECUA that the 

P401-lined [ductile iron pipe] would be suitable for] ECUA’s wastewater pipeline 

projects). The record also reflects that ECUA independently investigated the relative 

merits of using P401-lined ductile iron pipe versus alternatives and confirmed that 

the former was an “industry standard” with “decades” of use in sewer applications. 

See, e.g., Neu Dep., ECF No. 73-2 at 8-11. There is no evidence or even argument 

that ECUA reasonably could have discovered that P401-lined ductile iron pipe was 

not appropriate for the anticipated aggressiveness of its sewers, although even if 

there were such evidence, that fact might implicate comparative negligence 

principles but it would not doom ECUA’s negligent misrepresentation claims. See 

Gilchrist Timber Co. v. ITT Rayonier, Inc., 696 So. 2d 334, 335 (Fla. 1997) (holding 

that principles of comparative negligence apply in negligent misrepresentation cases 

and recipients of information are responsible for “investigating information that a 

reasonable person in the position of the recipient would be expected to investigate”); 

Specialty Marine, 66 So. 3d at 311 (affirming jury finding both that plaintiff 

justifiably relied and that defendant’s misrepresentations were the cause of only 90% 

of the plaintiff’s damages); Newbern v. Mansbach, 777 So. 2d 1044, 1046 (Fla. 1st 

DCA 2001) (“Gilchrist in no way suggests that a cause of action may be precluded 

as a matter of law based on the trial court’s determination that a plaintiff reasonably 

could have discovered the information and/or that such information is part of public 

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record.”). Based on the totality of the foregoing evidence, a reasonable factfinder 

could find that ECUA justifiably relied on Defendants’ alleged misrepresentations. 

See Specialty Marine, 66 So. 3d at 311 (“It is for the jury to determine whether 

reliance was justified under the totality of circumstances.”). Accordingly, summary 

judgment on justifiable reliance grounds is denied.

C. Implied Warranties—Induron (Counts IX & XII)

Induron moves for summary judgment on ECUA’s implied warranty claims 

on three grounds. First, Induron argues that ECUA lacks privity with Induron 

because it did not purchase P401 directly from Induron and it is not a third-party 

beneficiary under any P401 sales contract with Induron. Second, Induron argues 

Florida law bars implied warranty claims by remote purchasers against upstream 

component part manufacturers who are not in privity. Last, Induron ECUA has not 

shown that Induron intended or directed ECUA to use P401 in a peculiar or unusual 

manner, rather it was used for its ordinary purpose.

1. Privity

The Court begins with the issue of privity. As discussed in a prior Order, ECF 

No. 94, privity may arise under Florida law where: (1) the plaintiff purchased a 

product directly from the defendant; (2) the plaintiff is a third-party beneficiary of a 

contract to which the defendant is a party; or (3) the defendant made direct 

assurances to, or otherwise directly engaged with, a plaintiff-buyer who purchased

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from a third-party. See, e.g., Padilla v. Porsche Cars N. Am., Inc., 391 F. Supp. 3d 

1108, 1116 (S.D. Fla. 2019) (collecting cases). ECUA did not purchase P401 

directly from Induron and, in connection with the instant briefing at least, it offered 

no evidence to support a finding that it has third-party beneficiary status under any 

sales contract(s) for the P401 used in its projects.14 However, ECUA has provided 

evidence that it had direct discussions with, and received direct representations from, 

at least one Induron representative about the suitability of P401-lined pipes for its 

anticipated domestic wastewater needs, during the Birmingham visit. As already 

discussed, Patrick L. Byrne, a Professional Engineer who participated in the visit on 

behalf of ECUA, submitted an affidavit stating that the parties “specifically 

discussed ... in detail” one of ECUA’s “primary concerns” regarding P401-lined 

ductile iron pipe, which was “the potential for failures and leaks due to corrosion 

resulting from potential hydrogen sulfide gas problems[,]” and whether P401 “would 

be able to handle the anticipated levels of corrosivity[.]” See Byrne Aff., ECF No. 

88-2 at 3-4. According to Byrne, Induron (as well as the other two defendants) 

represented that P401 “was able to withstand extremely corrosive environments...[,] 

would be suitable for [ECUA’s] particular plans[,] and would withstand the 

14 Compare ECUA Response to American First MSJ, ECF No. 59 at 4 (conceding that 

ECUA’s contractor purchased P401-lined ductile iron pipe from American “on behalf of and at 

the direction of ECUA”) (emphasis in original), with ECUA Response to Induron MSJ, ECF No. 

88 at 33-35 (asserting ECUA’s implied warranty claims are covered under Florida’s third-party 

beneficiary laws but citing no evidence to support the assertion). 

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anticipated corrosion” conditions. Id. Byrne said that all three defendants also 

provided “specific technical data and testing” reports to substantiate their 

representations. See id. at 4; see also Induron P401 Standards Booklet, ECF No. 88-

1 at 201-45. Included among the data from Induron was a P401 case history from a 

sewer system in South Florida, complete with pictures, in which “severe” corrosive 

conditions “destroyed” the PVC-lined concrete walls of the pipeline (as well as 

various flanges and fittings) but the P401-lined portions of ductile iron pipe 

remained unscathed. See P401 Case History, ECF No. 88-1 at 188-89. Byrne’s 

affidavit is corroborated by Bruce Neu, a project engineer for the subject pipelines 

who also attended the Birmingham visit, who testified that Defendants, including 

Induron, “marketed” and “represent[ed]” P401 as able to withstand the anticipated 

high concentrations of biogenic sulfides in ECUA’s pipelines. See Neu Dep., ECF 

No. 69-5 at 24-25. On the whole, this evidence is more than sufficient to create a 

triable dispute of material fact as to whether Induron—based on its direct contacts 

and representations to ECUA—was in privity with ECUA. See Global Quest, LLC 

v. Horizon Yachts, Inc., 849 F.3d 1022, 1032 (11th Cir. 2017) (applying Florida law); 

ISK Biotech Corp. v. Douberly, 640 So. 2d 85 (Fla. 1st DCA 1994) (finding privity 

where manufacturer’s representative told third-party seller to assure plaintiff that 

product would not destroy plaintiff’s crop); Cedars of Lebanon Hosp. Corp. v. 

European X-Ray Distrib. of Am., Inc., 444 So. 2d 1068, 1072 (Fla. 3d DCA 1984) 

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(finding privity where manufacturer’s representative made express warranty through 

direct contacts with the purchaser who bought product from third-party distributor).

2. Upstream Component Part Manufacturers

Induron next argues that “downstream” purchasers of a final product, like 

ECUA, are barred from asserting breach of implied warranty claims against 

“upstream” (or “remote”) component part manufacturers, like Induron, under 

Florida law. The Court disagrees. As the cases cited by Induron make clear, 

Florida’s Uniform Commercial Code only bars a purchaser’s implied warranty claim 

against a remote component part manufacturer with whom the purchaser lacks 

privity. See, e.g., Favors v. Firestone Tire & Rubber Co., 309 So. 2d 69, 73 (Fla. 

4th DCA 1975); Schuessler v. Coca-Cola Bottling Co. of Miami, 279 So. 2d 901, 

903-04 (Fla. 4th DCA 1973); see also Safranek v. Wal-Mart Stores, Inc., No. 

0:07cv61533, 2009 WL 10668141, at *3 (S.D. Fla. Mar. 24, 2009). Here, the Court 

has already found the record evidence more than sufficient to create a triable dispute 

of material fact as to whether Induron and ECUA were in privity for implied 

warranty purposes. Resolution of that dispute of fact at trial will determine whether 

the “remote” manufacturer rule applies in this case; therefore, summary judgment is 

not appropriate on this ground.

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3. Fitness for a Particular Purpose

Induron argues summary judgment should be granted on ECUA’s implied 

warranty of fitness for a particular purpose claim because ECUA has not shown that 

“Induron intended or directed ECUA to use [P401] in a peculiar or unusual 

manner[.]” See Induron Mot., ECF No. 70 at 39-41. Again, the Court disagrees.

The warranty protections of Fla. Stat. § 672.315 (fitness for a particular 

purpose) arise where “the seller at the time of contracting has reason to know any 

particular purpose for which the goods are required and that the buyer is relying on 

the seller’s skill or judgment to select or furnish suitable goods.” See also Royal 

Typewriter Co., a Div. of Litton Bus. Sys., Inc. v. Xerographic Supplies Corp., 719 

F.2d 1092, 1100 (11th Cir. 1983) (applying Fla. Stat. § 672.315). 

A ‘particular purpose’ differs from an ordinary purpose in that it 

envisages a specific use by the buyer which is peculiar to the nature of 

the business whereas the ordinary purposes for which goods are used 

are those envisaged in the concept of merchantability and go to the uses 

which are customarily made of the goods in question.

See Off. Comment 2 to Fla. Stat. § 672.315; Royal Typewriter, 719 F.2d at 1100. 

So, for example, whereas “shoes are generally used for the purpose of walking upon 

ordinary ground,” such that the implied warranty of merchantability applies, “a seller 

may know that a particular pair was selected to be used for climbing mountains,” in 

which case the implied warranty of fitness for a particular purpose applies. Off. 

Comment 2 to Fla. Stat. § 672.315. The existence or nonexistence of a warranty of 

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fitness for a particular purpose “must and necessarily...depend[s]” on whether the 

buyer relied on his own judgment at the time of purchase, or instead, the skill and 

judgment of the seller, and “this is question of fact to be determined by a jury.” 

Smith v. Burdine’s, Inc., 198 So. 223, 229 (Fla. 1940); Off. Comment 2 to Fla. Stat. 

§ 672.315; see also Green v. Am. Tobacco Co., 304 F.2d 70, 73 (5th Cir. 1962) 

(applying Florida law and quoting Smith, 198 So. at 229);15 Masforce Eur., BVBA v. 

Mastry Marine & Indus. Design, Inc., No. 8:11cv1814, 2013 WL 12156533, at *14 

(M.D. Fla. Oct. 24, 2013) (same). 

Defendants’ own position regarding the facts and evidence again defeats their 

arguments in favor of summary judgment. Induron (and American) have offered 

evidence and argued at length that P401 is suitable only for “typical” domestic 

wastewater applications, and not “overly aggressive” ones, like ECUA’s. See, e.g., 

Jeffers 30(b)(6), ECF No. 71-2 at 32, 65-66. Logically speaking, one cannot insist 

that ECUA’s domestic wastewater pipeline conditions were atypical and 

extraordinarily aggressive while also maintaining that ECUA’s P401-lined ductile 

iron pipes were only ever put to their ordinary and customary use for implied 

warranty purposes. In any event, the Court has already found that ECUA has 

produced sufficient evidence to create a jury question on the issue of whether : (1) 

15 In Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir. 1981) (en banc), the 

Eleventh Circuit adopted as binding precedent all decisions of the former Fifth Circuit rendered 

prior to October 1, 1981.

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Defendants specifically knew and understood the anticipated aggressiveness of 

ECUA’s sewer conditions and, using their superior knowledge and experience with 

P401-lined ductile iron pipes, nonetheless represented that their product would 

protect against biogenic sulfide corrosion and leaks; and (2) ECUA relied on 

Defendants’ skill and judgment in selecting P401-lined ductile iron pipes for its 

pipeline projects. This evidence is sufficient to establish a genuine dispute of 

material fact on ECUA’s implied warranty of fitness for a particular purpose claim. 

Accordingly, the motions for summary judgment filed by Defendants 

American, ECF No. 72, and Induron, ECF No. 70, are GRANTED IN PART and 

DENIED IN PART, as follows:

1. Summary judgment is granted in Defendants’ favor on ECUA’s 

negligent manufacturing claims (Counts I & III). 

2. Summary judgment is denied in all other respects (Counts IV, VI, IX & 

XII). 

3. In order to assist the Court in effectively managing its calendar, counsel 

are directed to confer personally and notify the Court in writing, within 

seven days, of the expected length of the trial and whether this case will 

be tried by judge or jury. Trial will be scheduled by separate order.

4. The docket indicates that the parties have not engaged in mediation 

since February 2022. Therefore, this matter will be referred for a 

settlement conference with a magistrate judge by separate order. 

SO ORDERED, on this 10th day of July, 2023.

 M. Casey Rodgers M. CASEY RODGERS

UNITED STATES DISTRICT JUDGE

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