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Strobert Tree Services, Inc. v. Kenneth Lilly Fasteners, Inc.

Superior Court of Delaware

October 16, 2018

STROBERT TREE SERVICES, INC, Plaintiff,
v.
KENNETH LILLY FASTENERS, INC., Defendant.

          Submitted: July 19, 2018

          On Defendant Kenneth Lilly Fastener's Motion in Limine to Strike Plaintiff's Expert Report.

          George T. Lees, III, Esquire, Logan & Petrone, LLC, 100 West Commons Blvd., Suite 435, New Castle, Delaware, 19720. Attorney for Plaintiff.

          David Baumberger, Esquire, Chrissinger & Baumberger, 3 Mill Road, Suite 301, Wilmington, Delaware, 19806. Attorney for Defendant.

          CALVIN L. SCOTT, JR. JUDGE

         Facts

         Strobert Tree Services, Inc. ("Plaintiff") claims breach of contract, breach of express warranty, and breach of implied warranty of merchantability against Kenneth Lilly Fasteners, Inc. ("Defendant"). Plaintiff and Defendant entered into an agreement where the Defendant was to supply 1, 000 locknuts and bolts to Plaintiff for use in Plaintiff's Peterson 6710B Grinder (hereinafter "grinder").

         Plaintiff uses this stump grinder during land clearing operations. Plaintiff contends that due to the high temperatures generated by the grinder and severe vibrations, a lock nut and bolt system must be used as opposed to a normal nut and bolt system. Plaintiff purchased the nuts in batches of 1000 from Defendant in a prior exchange. Plaintiff claims that the 2013 batch is at issue in the case sub judice.

         Plaintiff plead that the locknuts and bolts were repeatedly re-installed due to the locknuts continuously failing and shearing off of the old bolts. Plaintiff contacted Defendant regarding this failure. Subsequently Defendant sent out a representative to inspect the materials. Plaintiff alleges that the Defendant's representative determined that the locknuts were defective. Subsequently Defendant replaced the 1, 000 locknuts and bolts at no charge. Defendant's personnel told Plaintiff that that they should not be using an impact wrench to install the nuts because this application method destroys the waxy lubricant on the nut. [1] Prior to this conversation the teeth on the grinder were installed using an air driven impact wrench. The fasteners allegedly always held and the teeth never detached from the drum when Plaintiff used this method. [2] Plaintiff's personnel subsequently installed all nuts on the teeth using a torque wrench, but the problem allegedly still existed.

         Plaintiff had the mill drum assembly on the grinder removed and upon inspection Plaintiff alleges that the drum was damaged beyond repair. Mr. Strobert in his deposition stated that the 2013 batch was different than the previous batch purchased from Defendant. In the 2013 batch he "could actually see the metal from the nut just shearing off the threads." Plaintiff alleges that Defendant distributed defective locknuts and bolts ("2013 batch") to Plaintiff which resulted in damage to Plaintiff's Peterson 6710B Grinder. Plaintiff claims that it purchased a new mill drum rotor and expended $89, 481.15 in labor and materials to remove and replace the drum rotor.

         Dr. David Pope's Report

         Plaintiff retained David P. Pope, Ph.D. as an expert witness. Dr. Pope opined that the failure of the locknuts and bolts resulted in irreparable damage to the drum on the grinder. The drum of the grinder is a large rotating device that is 46 ½ inches in diameter and 69 3/8 inches long. It weighs 16, 000 pounds and has 24 replaceable grinding teeth. Each of these teeth are attached to the perimeter of the drum with 7/8" diameter and 7" long grade 8 bolts with washers and grade C prevailing torque nuts. This drum rotates at 840 to 900 rpm and grinds large diameter logs. Dr. Pope opined that the drum was damaged when fasteners failed; releasing grinding teeth, which then damaged other parts of the drum.

         Dr. Pope performed multiple tests on the batches provided by Plaintiff. His goal was to determine if an impact wrench destroyed the lubricant which damaged the threads. Only one unused nut from the 2013 batch was provided to Dr. Pope for testing. Dr. Pope did not test the one unused nut in the formulation of his report. Defendant states they are still in possession of the remainder of the 2013 batch, and have offered Plaintiff the opportunity to test the remaining pieces. Plaintiff however, has not done so.

         The Parties' Contentions Regarding the ...


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