IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF INDIANA

BALL CORPORATION, AN INDIANA )

CORPORATION AND FACTORY MUTUAL )

INSURANCE COMPANY, A RHODE )

ISLAND CORPORATION, AS SUBROGEE, )

Plaintiff, )

) 

v. ) CAUSE NO. 4:16-CV-00042-TLS-

)

AIR TECH OF MICHIGAN, INC., )

A MICHIGAN CORPORATION, )

Defendant. )

DEFENDANT’S MEMORANDUM IN SUPPORT OF MOTION FOR SUMMARY 

JUDGMENT

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Defendant, Air Tech of Michigan, Inc. (“Air Tech”) respectfully submits this 

Memorandum in Support of Defendant’s Motion for Summary Judgment. As explained 

herein, Air Tech is entitled to judgment as a matter of law. 

STATEMENT OF MATERIAL FACTS

In the very early hours of May 23, 2014, a fire occurred at Ball’s beverage can 

manufacturing plant in Monticello, Indiana. (See Air Tech’s Summary Judgment 

Appendix (“AT App.”), p. 4). The most direct physical impact of the fire was extensive 

damage to a network of ducts associated with industrial ovens used by Ball to cure 

certain solvents applied to its cans during its manufacturing process. (See AT App. p. 9, 

43:21-44:14. On May 22, 2014, Air Tech was onsite at Ball’s Monticello facility to clean 

one of the aforementioned ovens: internal bake oven number 2 (“IBO 2”). (See e.g. Dkt. 

No. 2, ¶14); (see also AT App. p. 167:21-168:4, 170:18-172:7, 176:1-178:15, 189:13-190:12, 

194:8-15; 238:14-19, 252:16-17; 275:15-20). Ball and FMIC filed a three-count complaint 

which essentially stands for the central allegation that Air Tech did not appropriately 

clean IBO 2 and caused the May 23, 2014 fire. (Dkt. No. 1).

I. IBO Number 2’s Basic Operation and Maintenance

According to its Operator’s Manual (“Manual”), IBO 2 was “designed for curing 

lacquer on containers under controlled conditions, as they are transported on a 

conveyor through four temperature zones.” (AT App. p. 289; (see also AT App. p. 394:25-

396:22; 149:2- 150:25; 252:18-253; 429:12-14, 432:18-433:1). Each of the four zones were 

heated by “burner boxes” which sat on top of IBO 2 and housed a natural gas-fueled 

flame. (AT App. p. 375:21-377:14; 153:24-156:7; 452:17-453:19, 455:11-456:10; 434:14-21). 

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The flames inside of the burner boxes were the only flames used to heat the body of IBO 

2; there was no open flame inside of the body of the oven. Id.; (see also AT App. p. 274:1-

17, 286:2-15).

Each burner box associated with IBO 2 was equipped with (1) an intake fan, 

which would bring fresh air from outside of the oven into the combustion chamber to 

assist in fueling the flame, and (2) recirculating fan(s), which would both draw the 

heated air from inside the burner box downward into the body of IBO 2, as well as 

recirculate the non-exhausted, heated air therein. Id.; (see also AT App. p. 378:2-12, 

387:18-388:2; 153:24-158:3, pp, 228:21-234:2; 437:16-439:6). IBO 2 was also equipped with 

two “squirrel cage” exhaust blowers (or fans) at both the inlet and discharge ends of the 

oven which allowed some of the hot air forced into the body of the oven (as well as the 

vapors from the curing process) to be expelled through a network of ducts to a 

regenerative thermal oxidizer (“RTO”) and, ultimately, out of the facility. (See AT App. 

p., 153:24-158:19; 437:16-439:6]. The ducts were constructed of a noncombustible metal, 

but were covered with a foam-based, aluminum backed insulating wrap on their 

exterior. (AT App. pp. 158:20-159:7; 381:24-382:16).

Ball’s manufacturing process utilized two combustible liquids: one to line the 

internal surface of the can (often referred to by Ball as “IC spray”) and another (a 

“varnish”) to coat the exterior of the cans. (AT App. p., 477; 146:14-147:13, pp. 149:2-

150:25, p. 160:4-18; 500:22-501:4, pp. 503:7-504:1; 254:2-16; 430:22-24). As an expected byproduct of the curing of these liquids and the associated condensation of the 

combustible vapors produced by same, Ball knew and understood that solid 

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accumulations of combustible deposits would occur both inside of IBO 2 (and other 

curing ovens) and the associated ductwork. (AT App. p. 149:2- 150:25; pp. 165:16-166:10, 

pp. 173:1-175:17, p. 216:10-15; 379:24-380:3; 36:21-39:18; 504:5-12; 251:3-9, p. 254:2-16;

431:19-431:25; 314, 316-320; 477; 18). The by-product was known to typically manifest in 

two forms: (1) in a true solid state where it would be hard and “flaky” or (2) a liquidlike state where it would have “gooey” consistency resembling tar. (See e.g. AT App. pp. 

384:10-385:3, pp. 389:11-392:21, p. 393:8-22; 507:17-508:6; 173:24-175:2; 254:2-16; 510:24-

511:6, p. 512:10-18, pp. 514:15-515:16, p. 517:4-14; 520:22-25, p. 527:3-14, pp. 528:15-529:7; 

552:1-553:21; 481; 627). The latter form of the combustible by-product was more 

commonly encountered in the ductwork; the condensate inside of the oven typically 

displayed the hard and flaky characteristics. (See e.g. AT App. pp. 173:24-175:2; 254:2-16; 

(but see AT App., pp. 389:11-392:21, p. 393:8-22). In order to ensure the safe and efficient 

operation of Ball’s manufacturing process, these accumulations of combustible byproducts were supposed to be regularly cleaned from both the ovens and ductwork. 

(See AT App. pp. 314, 316-320; 404:6-24).

According to the Manual, cleaning of the above-referenced combustible 

accumulations was recommended to be completed once a month for an oven being 

operated twenty-four (24) hours a day, seven (7) days a week, as was Ball’s IBO 2. (See 

AT App. pp. 314, 319, ).

1 398:7-400:11; 249:24-250:9; 454:3-8). This entailed the use of 

 

1 That notwithstanding, there is no dispute that Ball only cleaned its ovens once every six (6) months, and 

the associated ductwork even less frequently at once every year. (AT App., pp. 151:7-152:10, pp. 161:24-

162:5, pp. 162:24-163:14; 397:3-400:11, 403:4-14; 457:17-19; 502:3-16). In fact, Air Tech was asked to clean 

the ovens at Ball Monticello much less frequently than even other Ball locations at which it performed 

cleanings. (AT App. pp. 648:15-650:22, pp. 654:24-655:6). 

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scraping and wire-brush tools to “[t]horoughly clean duct passages2, fan blades, panel 

walls, and steelwork” associated with the given oven, and the use of a vacuum to 

“remove as much dust as possible.” (AT App. pp. 319, §4.5; 168:5-169:16). Once that is 

complete, the Manual’s recommended cleaning procedure is to run the recirculating 

fans for a short period to force “any remaining dust [to] settle[] onto the oven floor,” 

after which it should be removed with a vacuum cleaner. Id. The final step in the 

Manual’s recommended cleaning process is to raise the temperature in the oven and 

run scrap metal, “heavily coated with old varnish or lacquer,” until any remaining dust 

in the atmosphere of the IBO is removed via adhesion to same. Id.

II. IBO Number 2’s May 22, 2014 Cleaning

On May 22, 2014, Ball engaged Air Tech solely for purposes of cleaning IBO 2, 

and not its associated ductwork. (AT App. p. 148:11-18, p. 170:18-21, pp. 171:3-172:11, 

pp. 192:23-193:14, p. 194:8-15). The expectation was that Air Tech would clean inside of 

IBO 2 to the squirrel cage exhaust fans, and as far into the ductwork above the exhaust 

assembly as the Air Tech personnel could reach (which was not very far). (AT App. p. 

171:3-172:7, p. 194:8-15; 464:21-465:11; 526:3-8; 40:17-42:18)

3. The job generally required 

Air Tech to disassemble the oven’s removable panels and screens, clean its inside 

 

2 The Manual also specifically advises that “[t]he risk of fire is substantially reduced by thorough and 

regular cleaning of the fume extract ducts,” and warns that failure to do so can lead to “excessive fuming 

problems, building back to contaminate combustion chambers,” or, in other words, the burner boxes. 

(AT App. pp. 318, § 4.2; 401:2-403:14).

3Air Tech was not asked to clean the burner boxes or the actual burners therein. (AT App. pp. 466:16-23; 

164:12-14; 386:9-20; 665:19-666:15, p. 667:12-23). Notably, Ball never cleaned the burner boxes, but did 

clean the burners periodically. Id.; (see also AT App. pp. 276:23-277:9, 280:24-281:21, p. 282:11-14, p. 283:6-

19; 444:21-446:20, p. 447:15-21).

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surfaces and components of the combustible deposits from the curing process with 

wire-brushes and scrapers, vacuum as much dust and particulate as possible, and then 

reassemble the oven. (AT App. pp. 464:21-465:11; 168:5-169:16; 652:14-653:1; 525:9-25;

431:19-431:25; 659:17-24, pp. 660:19-661:12; 525:9-25; 673:13-22, 675:19-25, 676:8-22, p. 

677:2-17). At that point, Air Tech would inform Ball that Air Tech’s tasks were 

complete, Ball would inspect the work, and Air Tech would be dismissed. (AT App. p. 

167:21-168:4, pp. 180:12-181:18, pp. 182:6-185:20, pp. 197:24-199:3, p. 211:18-23, p. 212:9, 

pp. 225:16-227:20; 410:21-416:19; 513:16-23, p. 516:5-15; 521:23-524:14; 674).

Ball knew and expected that once Air Tech’s work was complete, there would 

still be a significant amount of dust and scraped particulate present inside of IBO 2 

which had been loosened by the cleaning (i.e. scraping and brushing) process. (AT App. 

p. 405:23-409:21; 183:10-186:14; 284:12-24; 319 § 4.5). Accordingly, upon the completion 

of Air Tech’s work on May 22, 2017, there still remained three additional steps to be 

completed in the cleaning process: (1) running of the circulating fans to force airborne 

dust and particulate to settle onto the oven floor; (2) vacuuming the particulate from the 

oven floor; and, (3) running lacquered scrap metal through the oven to collect any 

lingering dust and particulate. Id.; (see also AT App. pp. 185:23-187:16; p. 461:11-463:13; 

278:18-279:3; 668:20-670:5). Ball, alone, performed each of these last three cleaning tasks, 

as well as other start up and safety tasks, without any involvement or participation by 

Air Tech; indeed, Air Tech had no knowledge of how to operate the IBO and was not 

expected by Ball to do so. Id.; (see also AT App. p. 415:7-416:15; 464:3-20; 183:10-186:14, 

pp. 198:19-202:17; 257:13-258:12; 651:4-10; 425:13-23, pp. 426:9-429:4, pp. 435:19-436:4, 

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pp. 440:9-442:13]. Critically, although the Manual instructs that dust forced onto the 

oven’s floor by the fans be removed by vacuuming, Ball admits that it never did so. (AT

App. p. 405:23-409:21; 319 § 4.5].

III. The May 23, 2014 Fire

Air Tech completed the May 22, 2014 cleaning of IBO 2 without a hitch. (AT App. 

pp. 189:13-190:12, p. 191:13-19, p. 192:19-22, pp. 195:14-198:13). Subsequently, Ball 

performed its own tasks, including the running of the scrap metal to capture 

particulate, and encountered no problems or concerns. (AT App., pp. 198:14-205:25). 

IBO 2 then resumed normal production for several hours without incident. (AT App. p. 

205:15-25; 459:1-461:2, p. 468:1-5; 679:8-11, p. 682:19-683:8; 239:18-25, p. 248:10-17, p. 

264:25-265:2; 477; 20).

Shortly after midnight on May 23, Ball electronic technicians (“ETs”) and 

millwrights received a page requesting they investigate IBO 2 due to reports (from 

some unidentified Ball personnel) of a smell of something hot and light smoke in the 

vicinity of the IBO 2 exhaust blower. (AT App. p. 684:23-686:16, p. 692:1-25, 695; 240:20-

241:9, p. 242:3-16, 271; 20; 478). Millwright Wes Krintz explained that these reports 

were not all that concerning at the time. (AT App. pp. 240:20-241:9, pp. 245:22-246:10).

He knew that the oven had been cleaned during the previous shift and this could cause 

a smell of something hot, and even light smoke. Id.

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Upon arrival, the reports of smoke were visually confirmed by Krintz, who 

witnessed it exiting a small, “pitot tube” 4 hole in the ductwork above the oven. (AT

App. pp. 241:13-22, pp. 245:22-246:10, p. 247:8-16, pp. 255:7-256:8, p. 259:3-25, pp. 263:2-

264:15, p. 267:7-22, pp. 268:21-269:12; (see also AT App. p. 458:3-22). ET, Bob Pellegrini, 

also observed a little smoke in the area, and both Pellegrini and Krintz confirmed the 

reports of a smell of something hot. (AT App. pp. _684:23-686:16; 267:15-22). Visual 

inspection of the nearby squirrel cage exhaust blower initially revealed nothing of 

concern. (AT App. pp. 266:2-16). Pellegrini checked IBO 2’s control panel for any signs 

of temperature or air flow problems and found no indication of any ongoing problem 

inside of the oven that might explain the smell of smoke present. (AT App. pp. 686:17-

689:10). 

Pellegrini fetched a “heat gun” (i.e. a thermal imaging device) for purposes of 

checking the temperatures in the area in comparison with temperatures of analogous 

components on other ovens on the production floor. (AT App. pp. 680:11-681:9, p. 690:4-

16). While smoke continued to be observed in the vicinity of the exhaust blower, the 

temperature readings Pellegrini initially obtained when he pointed the heat gun 

directly at the squirrel cage did not reveal any obvious ongoing problem. Id. In fact, 

Pellegrini testified that, initially, IBO 2’s exhaust blower was cooler than that of an 

adjacent machine. Id.5

 

4 A “pitot tube” is an instrument which Ball would periodically use to measure air flow inside of the 

facility’s ductwork. (MTE App. pp. 419:13-422:21). Access holes for these measurements were located on a 

stretch of horizontal ductwork directly above IBO 2. Id.

5 The accounts of Krintz, Pellegrini, and another millwright, Randy Crume begin to diverge at this point 

in the sequence of events. (AT App. pp. 701:17-702:7, 703:12-13). Pellegrini claims that the burners and 

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Shortly after the initial temperature readings by Pellegrini, Krintz and another 

millwright, Randy Crume, used a scissor lift to obtain an eye-level view of the exhaust 

end of IBO 2 in an effort to further investigate the presence of smoke. (AT App. pp. 

705:23, p. 706:20-23; 262:4-22, p. 266:2-16). Krintz observed sparks and embers through

the same pitot tube holes in the ductwork from which he had previously seen smoke 

emanating. (AT App. pp. 261:8-262:3). Crume observed thicker smoke from the area of 

the exhaust blower and paint on the exterior of the blower began to bubble. (AT App. 

pp. 707:4-708:2). Pellegrini continued to operate the heat gun, and, in addition to an 

increase in smoke, observed the temperature of the exhaust assembly steadily increase

as high as 520° F. (AT App. pp. 693:17). Krintz and Crume attempted to spray a fire 

extinguisher into the small pitot tube hole, which appeared to make things worse. (AT 

App. pp. 262:4-22). The men ultimately decided to leave the area, the plant was 

evacuated, and the fire department was called. 

When Captain Rocky Strange of the Monticello Fire Department arrived at the 

plant at approximately 12:53 a.m., Ball personnel informed him that a fire was ongoing 

in a “vent” above one of Ball’s ovens. (AT App. pp. 565:23-570:20, 586). When Captain 

Strange arrived at the scene of the reported fire, he observed fire around the exterior of 

the vent and could see that the insulation wrapped around the ductwork was aflame. 

Id.; (see also AT App. pp. 571:23-572:16). Captain Strange and his crew tore into the 

 

associated recirculating fans for IBO 2 were shut down while the other fans were left on. (AT App. pp. 

690:4-691:22). Crume states that, to his knowledge, the burners were never shut down. (AT App. pp. 

709:16-710:5). Krintz recalls that all at the scene discussed the need to shut all of the blowers off to avoid 

feeding air to any flame that might be present inside of the oven or ductwork, and that all ultimately 

agreed to do so. (AT App. pp. 243:16-244:5, p. 259:18-23, p. 260:18-21, p. 261:4-11).

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ductwork and began spraying water directly into the exhaust vents in an effort to douse 

the fire. Id.; (see also AT App. pp. 582:1-21). After a long fight, the fire was ultimately 

brought under control. Id.; (see also AT App. pp. 583:16-584:20, p. 585:3-24). 

The events in the early hours of May 23 left Ball’s production floor an utter mess. 

(AT App. pp. 583:16-584:20, p. 585:3-24; 208:6-211:17). The Monticello Fire Department 

had cut into the ductwork and its associated insulation as part of their efforts. Id.; (see 

also AT App. pp. 571:23-572:16). A high powered hose was sprayed into the various 

portions of the ductwork and oven, and dry chemical extinguishers had been utilized in 

an effort to suppress the flames. Id. As expected, all of this activity generated a 

significant amount of debris, dust, and particulate. Id.; (see also AT App. pp. 207:22-

211:17, pp. 218:6-220:10, 236).

IV. Prior Events

As Captain Strange explained, the May 23, 2014 event was not the first time that 

he or the Monticello Fire Department had responded to a fire or smoke event at Ball’s 

facility involving the ductwork and/or the ignition of Ball’s manufacturing byproducts. (AT App. pp. 573:21-574:10, p. 575:7-22, p. 578:11-580:4, 586, 610, 616). For 

example, on October 9, 2011, there was a reported fire in the ductwork in the vicinity of 

one of the ovens at Ball’s facility. (AT App. pp. 610). Ball advised that it would 

disassemble the oven to check whether the fire might have spread from the ductwork to 

the oven, but there is no indication that any oven was actually involved in this event. 

(AT App. pp. 610; 576:21-577:24).

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On April 3, 2013, Ball personnel reported a fire in a section of the ductwork

exterior to the building. (AT App. pp. 616). Ball disclosed that it was “having trouble 

with the blower system.” Id. This caused overheating and “burning off [of] accumulated 

debris inside the flues [i.e. the ductwork].” Id.; (see also AT App. pp. 580:14-581:1). 

On July 11, 2013, Ball reported another fire. (AT App. p. 627). On this occasion, 

Ball informed the Monticello Fire Department that one of its ovens (referred to as a 

“furnace” in the report) had a “build up [sic] of can lubrication on and inside it that 

ignited.” Id. The lack of adequate air flow, once again, caused an overheating situation 

which “cause[ed] the oily build up to catch fire.” Id.

Captain Strange also independently recalled at least one other fire in the 

ductwork several years before the aforementioned. (AT App. p. 578:11-580:4). Strange, 

himself, was elevated via scissor lift to the ductwork above Ball’s production floor 

where a fire was ongoing “right in the duct.” Id. He created a hole large enough to 

insert a hose into the duct with a special attachment affixed which allowed him to 

extinguish the fire without having to get into the ductwork himself. Id.

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ARGUMENT6 7

I. There is no competent evidence that Air Tech breached any duty to Ball.

Ultimately, the issue of breach comes down to whether Air Tech left something 

combustible inside of IBO 2 at the conclusion of the May 22, 2014 cleaning that, in the 

exercise of reasonable and ordinary care, it should not have. As a threshold matter, 

there is no dispute that Air Tech’s charge did not require that it render IBO 2 

completely free of combustible dust and particulate or that it become an insurer of the 

oven (or its ductwork) against any risk or accident. (AT App. p. 405:23-409:21; 183:10-

186:14; 274:1-17, p. 284:12-24; 319 § 4.5); see also Kostidis v. Gen. Cinema Corp., 754 N.E.2d 

563, (Ind. Ct. App. 2001) (duty of reasonable care did not render defendant an insurer or 

guarantor against all risks or accidents). Indeed, it was Ball’s expectation and 

understanding that combustible dust and particulate loosened by Air Tech’s efforts 

would remain in the oven at the conclusion of Air Tech’s task on May 22, 2014 and that 

Ball, itself, still had to perform the final three steps in the cleaning process before 

resuming normal production in IBO 2. (AT App. pp. 405:23-409:21; 183:10-186:14; 274:1-

17, p. 284:12-24; 319 § 4.5).

 

6 Because this Court is sitting in diversity, and because Indiana has the most intimate contacts to the facts 

underlying this dispute, Plaintiffs’ claims are controlled by Indiana law. See e.g. Bitler Inv. Venture II, LLC 

v. Marathon Ashland Petroleum, LLC, 779 F.Supp.2d 858, 879 (N.D. 2011); see also Bell Microproducts, Inc. v. 

Mkt. Dev. Specialists, Inc., 2008 U.S. Dist. LEXIS 39420 *, 2008 WL 2074134*, (N.D. Ind. May 14, 2008); 

7 Plaintiffs’ Complaint asserts a claim for “breach of implied duty of workmanlike performance.” (Dkt. 

No. 1, Count II). In Indiana, this duty may give rise to a claim for either breach of contract or negligence, 

but does not function as a stand-alone cause of action. See e.g. Farah, LLC v. Architura Corp., 952 N.E.2d 

328, 336 (Ind. Ct. App. 2011). Plaintiffs assert claims for breach of contract and negligence, so Count II is 

entirely redundant; a grant of summary judgment on Count I and III would necessarily dispose of Count 

II. Id.

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The foregoing is significant insofar as it demonstrates, unequivocally, that 

evidence which merely establishes that dust and particulate was present inside of IBO 2 

at the time of the fire provides no reliable indication or reasonable inference of any fault 

attributable to Air Tech. That would be true even if, as Plaintiffs’ cause and origin 

expert, Scott Howell (“Howell”) has speculated, there were literal piles of combustible 

dust littering the oven. (See AT App., pp. 559:10-560:18).

8 Indeed, the Manual 

contemplated that running the recirculating fans at the conclusion of the task performed 

by Air Tech (which Ball did do) would result in such piles that could (and should) then 

be vacuumed (which Ball did not do on the date at issue or, in fact, any date that the 

ovens were cleaned). (AT App. pp. 319 § 4.5; (see also AT App. pp. 405:23-409:21, pp. p. 

415:7-416:15). Even assuming these “pile[s] of particulate” were present, Plaintiffs have 

adduced no evidence which would allow for a reasonable inference that they resulted 

from any failure or omission of Air Tech. (See AT App., pp. 559:10-560:18).

Even setting the foregoing aside, there is no reliable (or admissible) evidence that 

any loose combustible particulate was present inside of IBO 2 leading up to or at the 

time of the fire. Howell admits that he cannot identify, with any degree of certainty, the 

“first fuel” to suit his theory that this fire originated in the burner box then spread to the 

squirrel cage and, subsequently, the ducts. (AT App. pp. 549:16-551:19, pp. 559:10-

560:18; 475). Nevertheless, his “Report of Findings” plainly expresses his opinion that 

 

8 Contemporaneously herewith, Air Tech is filing a motion to exclude Howell’s would-be testimony as 

unreliable and entirely speculative. That motion is expressly incorporated by reference as if stated fully 

herein.

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the “first fuel” was the “small particulate material scraped off of the interior of IBO 2 

just prior to the fire.” (AT App., pp. 475). He claims that the basis for this conclusion

comes from a general description of the accumulations by former Ball employee Freddy 

Spencer, visual examination of cans found at the end of the line after the fire was 

extinguished, and “thought experiments”. (AT App. pp. 538:9-539:9, p. 539:13-23, 540:4-

541:16, p. 542:11-24, pp. 542:25-543:7, pp. 544:21-545:3, pp. 549:16-551:19; 698, 699, 475, 

482).

There are two fundamental problems with Howell’s leap of logic. First, Howell 

admits that no actual testing was performed to confirm that the dust observed on the 

cans was, in fact, the combustible condensate by-product of Ball’s manufacturing 

process and Air Tech’s subsequent scraping thereof. (AT App. pp. 549:16-551:19).

Given that the same condensate was available for comparison from the ductwork, in 

which copious amounts of it allowed the fire to spread, he certainly could have done so. 

(See AT App. pp. 3). Howell offers no explanation for this failure.

Second, all of the cans subject to his “thought experiments” were at the end of the 

line, outside of IBO 2, when they were collected. (AT App. pp. 540:24-543:7, pp. 544:21-

545:3; 698, 699, 482). As both Captain Strange and Dale Spencer (former production 

supervisor at Ball) explained, Ball’s production area (particularly in the vicinity of IBO 

2) was covered with debris, dust and particulate from seemingly innumerable sources, 

including not only the by-products of the fire, itself, but also the charred combustible 

accumulations from inside of the ductwork, which was cut open during the firefight. 

(AT App. pp. 583:16-584:20, p. 585:3-24; 208:6-211:17; 571:23-572:16; 207:22-211:17, pp. 

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218:6-220:10, 236; (See also AT App. p. 5). As Dale Spencer, himself, explained without 

some sort of testing, the little speck of supposed dust depicted on the photographs 

singled out by Howell in his report “could have c[o]me from anywhere.” (AT App. pp. 

218:6-220:10). Moreover, Howell’s description of the dust observed on the can as 

displaying a “light gray” color is inconsistent with the description of Air Tech personnel 

(who actually scraped it loose) that it was black. (AT App. pp. 542:11-24; 659:17-24, pp. 

661:19-662:6). Under the circumstances, it would be entirely speculative to infer that 

any dust was present inside of IBO 2 at all. See e.g. Gabb v. Wexford Health Sources, Inc., 

2019 U.S. App. LEXIS 18097 *12 (7th Cir. June 17, 2019) (citing Austin v. Walgreen Co., 

885 F.3d 1085, 1089 (7th Cir. 2018)) (mere speculation or conjecture cannot overcome a 

motion for summary judgment).

There is also no competent evidence that Air Tech failed to appropriately clean 

the areas of IBO 2 that fell within the scope of its work. Dale Spencer, who was the point 

of contact with Air Tech for the May 22, 2014 cleaning and periodically checked in on its 

progress, never assessed whether Air Tech did or did not appropriately clean the 

squirrel cage. (AT App. pp. 167:21-168:4, pp. 176:1-178:15, p. 179:8-21, pp. 197:14-198:13, 

pp. 217:6-227:20). He testified that he was not aware of any defect in Air Tech’s 

performance, and could not say that Air Tech did anything that might have caused the 

May 23, 2014 fire. (AT App. pp. 188:5-12). Indeed, no Ball employee was able to do so. 

(See AT App. pp. 469:15-470:22; 443:19-22, p. 448:21-23, p. 449:19-22; 285:15-286:1, pp. 

286:20-287:1; 704:16-18; 264:25-265:2; 682:19-683:8).

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The foregoing notwithstanding, Howell posits that a “chunk” of material 

exhibiting honeycomb-like characteristics indicates that Air Tech failed to properly 

clean the squirrel cage blower. (AT App. pp. 537:4-12, pp. 554:13-555:11, p. 561:12-

562:16; 496; 6970. However, as with the dust purportedly found on the cans, Howell 

performed no testing of the “chunk” in an effort to confirm that it was, in fact, the 

combustible condensate. (AT App. p. 557:4-24). Howell also acknowledges that a 

significant amount of tar-like accumulations, additional creosote-like solids, and other 

substances dislodged by the fire department were found in the same blower and 

appeared to have dropped down into the area of the squirrel cage from the ductwork 

above. (AT App. pp. 553:14-556:6; 494, Photograph 14). Once again, this failure to test 

artifacts is not explained by Howell.

Also important to note is that the tarry form of the condensate had a tendency to 

run down solid surfaces and even drip. (See e.g. AT App. pp. 552:1-553:21; 383:25-385:3, 

pp. 390:20-392:15, p. 393:8-22; 656:11-17, p. 657:6-18; 254:9-13). Even FMIC

acknowledged that this dripping and running phenomenon was observed on the 

outside of the ductwork following the fire, but claimed the effects of combustion 

precluded observation this behavior inside of the ducts. (AT App. pp. 45:25-47:5). Both 

Air Tech’s cause and origin expert Mike Vergon, and Howell did observe evidence of 

the running and dripping of the “goo” inside the exhaust system, including in the 

squirrel cage blower. (AT App. pp. 713:3-15, pp. 714:4-715:17; 481). This precludes any 

reliable inference that adhesion of accumulations to the metal surfaces in the fan 

housing, alone, reflected a failure by Air Tech. (AT App. pp. 716:17-717:9, pp. 719:14-

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721:3, p. 723:1-25, p. 724:10-24, pp. 725:19-726:10). Such a determination simply cannot 

be made without further supporting evidence. Unfortunately for Plaintiffs, none exists.

In addition to the above, the honeycomb-like material Howell relies upon was 

collected during an inspection that occurred on September 1, 2015, more than a year 

after the fire and subsequent disassembly of the affected equipment. (AT App. pp. 718:2-

9, p. 722:1-11, 729:15-19). The blower units had been removed from their operating 

position and kept in storage in the interim timeframe. Given that the blower units 

contained a considerable amount of the combustible accumulations, including in the 

“goo” and tar-like form, the removal, transport, and placement into storage certainly 

could have caused the accumulations to be moved from their position at the time of the 

fire and deposit elsewhere. This, too, precludes any reliable inference as to whether it 

was present before the fire in the absence of other evidence to that effect. (See AT App. 

pp. 716:17-717:9, pp. 719:14-721:3, p. 723:1-25, p. 724:10-24, pp. 725:19-726:10).

There is no reliable, admissible evidence that Air Tech inappropriately 

performed its task on May 22, 2014. Absent such there can be no breach. Absent breach, 

Plaintiffs cannot prevail on their claims. Summary judgment should be entered 

accordingly.

II. There is no competent evidence that Air Tech caused the fire.

Where it concerns matters not within a lay person’s understanding, a plaintiff 

must present competent, reliable expert testimony to establish causation, particularly 

where there are multiple potential causes. See e.g. Muncie State Transit Auth. V. Smith, 

743 N.E.2d 1214, 1217 (Ind. Ct. App. 2001). Indiana courts recognize that where 

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causation entails questions of cause and origin of a fire, expert testimony is required. See 

State Farm Fire & Cas. Co. v. Niswander, 7 N.E.3d 295, 299 (Ind. Ct. App. 2014). Even 

where expert testimony is advanced to that end, summary judgment is proper in favor 

of a defendant if the testimony fails to meet requisite elements of admissibility. Lytle v. 

Ford Motor Co., 814 N.E.2d 301, 308 (Ind. Ct. App. 2004).

As explained more thoroughly in Air Tech’s Motion to Exclude filed 

contemporaneously herewith, although Plaintiffs designated Scott Howell as an expert 

witness, his opinions are unreliable and inadmissible.

9 His analysis as to both the origin 

and cause of the subject fire did not comport with accepted fire investigation standards 

and, instead, was largely based upon unfounded assumption, conjecture, and 

speculation. Howell failed to “bridge the analytical gap” between the empirical 

evidence and data collected in connection with the fire and his opinions to the effect 

that Air Tech caused the fire. Gaskin v. Sharp Elecs Corp., 2007 U.S. Dist. LEXIS 65532 *21-

27, *30-31 (N.D. Ind. Aug. 31, 2007). For this reason, his opinion is unreliable, and 

cannot be asserted to support the existence of any genuine disputes which might 

preclude summary judgment.

It warrants reminding that (1) Ball did not expect Air Tech to deliver a 

particulate free oven, (2) Ball admits that it was responsible for the last three steps in the 

cleaning process; and (3) Ball admits that the first of these steps was not performed in 

compliance with the Manual and that the second step, vacuuming the particulate forced 

 

9 Air Tech’s Motion to Exclude is hereby incorporated by reference as if fully stated herein.

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to the oven floor, was never performed by Ball. (AT App. pp. 405:23-409:21; 183:10-

186:14; 284:12-24; 319 § 4.5; 185:23-187:16; 461:11-463:13; 278:18-279:3; 668:20-670:5; 415:7-

416:15; 464:3-20; 183:10-186:14, pp. 198:19-202:17; 257:13-258:12; 651:4-10; 425:13-23, pp. 

426:9-429:4, pp. 435:19-436:4, pp. 440:9-442:13). Assuming some dust was, in fact, left in 

the oven, such would not provide any reliable indication that Air Tech did not perform 

exactly as was expected. Accordingly, if (as Plaintiffs theorize) dust inside of IBO 2 

ignited and was exhausted out of IBO 2, establishing a genuine dispute as to causation 

demands competent evidence that this dust ignited something that Air Tech improperly 

left specifically in the eastern squirrel cage, as there is no dispute that Air Tech was not 

responsible for cleaning the ductwork on May 22 and it had been several months since 

Ball previously hired them to do so.

The only evidence Plaintiffs identify as supporting the theory that Air Tech 

caused the fire by failing to clean the squirrel cage is a sample of honeycomb-like 

material which they claim was collected from the eastern squirrel cage fan. However, it 

is plain that the sample they rely upon was actually recovered from the west exhaust 

assembly. (AT App. pp. 553:14-555:11; 725:19-726:10, 727; 734-740; 730:16-731:4; 751-

762). Moreover, given that there the tar-like form of accumulations – which had a 

tendency to run down surfaces and drip – were observed inside of the blowers and that 

the inspection of the blowers (and collection of the sample in question) occurred only 

after the exhaust assemblies were removed, transported, and placed in storage for well 

over a year, there is absolutely no competent evidence that the fire was caused by 

something improperly left in the eastern squirrel cage. Gabb v. Wexford Health Sources, 

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Inc., 2019 U.S. App. LEXIS 18097 *12 (speculation and conjecture cannot overcome a 

motion for summary judgment).

CONCLUSION 

For all of the above and foregoing reasons, this Court should grant Air Tech’s 

Motion for Summary Judgment. There is no admissible evidence giving rise to any 

reasonable inference that Air Tech breached any obligation it might have owed to 

Plaintiffs, or that any such breach caused the May 23, 2014 fire in question. Air Tech is 

entitled to judgment as a matter of law.

Respectfully submitted,

/s/ Jacob M. O’Brien

Jacob M. O’Brien, ID # 31445-09

Andrew B. Miller, ID # 18795-45

Starr Austen & Miller, LLP

201 South Third Street

Logansport, IN 46947

P: (574) 722-6676

Email: obrien@starrausten.com

miller@starrausten.com

ATTORNEYS FOR DEFENDANT 

AIR TECH OF MICHIGAN, INC.

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CERTIFICATE OF SERVICE

I hereby certify that on August 16, 2019, I served the foregoing on counsel of 

record via electronic mail.

Mark N. Senak

msenak@skgsmlaw.com

s/ Jacob M. O’Brien

Jacob M. O’Brien

Starr Austen & Miller, LLP

201 South Third Street

Logansport, IN 46947

(574) 722-6676

(574) 753-3299

miller@starrausten.com

100114.006/msj memo

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