Submitted: January 17, 2013
Appeal from United States District Court for the Eastern District of Arkansas - Little Rock
Before LOKEN, MURPHY, and COLLOTON, Circuit Judges.
LOKEN, Circuit Judge.
Joshua Williams was severely injured while working on an oil and gas rig in Conway County, Arkansas. After recovering workers' compensation benefits from his employer, DeSoto Drilling, Inc. ("DeSoto"), Williams commenced this diversity action for damages, asserting tort claims against various third parties including rig and drilling equipment manufacturers; TESCO Services, Inc. ("TESCO"), the contractor installing casing pipe in the well-hole at the time of the accident; and Jeffrey Anderson, a TESCO employee. Chartis Casualty Company, DeSoto's workers' compensation carrier, intervened in the lawsuit, seeking a statutory lien on Williams's recovery from third-party tortfeasors. See Ark. Stat. § 11-9-410(a)(1).
Williams and two manufacturers settled after the district court denied their cross motions for summary judgment. After further briefing, the court granted summary judgment dismissing negligence claims against Anderson and TESCO on the ground that these defendants' common law duty of ordinary care to Williams, as informed by the contractual relationships between the parties, did not "require Anderson and TESCO to foresee" that the actions of Williams's co-workers would result in his tragic injury. Williams v. Anderson, No. 4:09-cv-459, 2012 WL 1314150, at *5 (E.D. Ark. Apr. 16, 2012). The court also struck an untimely report by Williams's expert witness and denied his belated motion to amend the complaint to add a failure-to-train claim against TESCO. Williams and Chartis separately appeal these rulings. We consolidated the appeals. Reviewing the grant of summary judgment de novo, we affirm. See Koch v. Sw. Elec. Power Co., 544 F.3d 906, 908 (8th Cir. 2008) (standard of review).
As we are reviewing the grant of summary judgment in favor of defendants Anderson and TESCO, we state the material facts, when disputed, in the light most favorable to Williams, the non-moving party.
A. The Parties.
Southwestern Energy Production Company ("SWE") was the Owner/Operator of the oil and gas well. SWE hired DeSoto, its wholly-owned subsidiary, to serve as the Drilling Contractor. DeSoto owned Drilling Rig #9, on which the accident occurred, and employed a drilling crew that included Williams to operate the rig. MD Cowan, Inc. designed and manufactured Rig #9. Rig Technology, Ltd. supplied the rig's hoist system, or drawworks, which raised and lowered a power swivel, or top drive, on the mast of the rig. SWE hired TESCO, an independent contractor, to provide casing services for the well. Installing casing pipe, which preserves the structural integrity of the well-hole, is a specialized service that is often not performed by Operators or Drilling Contractors. For these services, TESCO provided a "TESCO tool" that DeSoto attached to the rig's top drive. SWE's On-Site Representative, Laddy Pendergraff, coordinated and oversaw the operations of DeSoto and TESCO.
DeSoto began drilling the well in early April, 2007. Ten days later, casing operations began. Williams's expert explained: "DeSoto's Rig Crew would operate Rig 9 while Tesco's Casing Crew would control the details of the work with regard to handling, making-up and running the Casing." To install casing pipe, DeSoto's Driller, at the time in question Assistant Driller Derrick Long, hoisted the top drive with the attached TESCO tool upward along the rig mast while a pipe boom lifted a 40-foot section of casing pipe into position. After the Driller, operating the drawworks, lowered the TESCO tool over the top of the casing pipe, TESCO's Casing Drive System Operator, in this case Jeffrey Anderson, locked the TESCO tool onto the pipe section. The Driller then lowered the casing pipe to the well-hole and, using the TESCO tool, rotated the pipe section, threading it into the existing "string" of casing pipe until firmly connected. The entire string was then lowered into the well-hole and the process repeated until the needed sections of casing pipe were connected and cemented into the well-hole.
B. The Accident.
On the morning of the accident, the top drive came out of alignment with the well-hole, causing sections of casing pipe to become "cross-threaded." Casing operations halted. DeSoto's rig foreman, Wade Hargis, ordered Williams and another DeSoto employee, Will Cox, to climb the two sides of the rig mast and realign the top drive. Because of inclement weather, Long, Anderson, and Pendergraff went inside a shelter, the "doghouse, " on the floor of the rig.
Some 45 minutes later, Cox climbed down after completing his adjustments and went into the doghouse. Williams testified that he finished his adjustments and started down, but Hargis, standing on the rig floor, told Williams to climb back up and make more adjustments, which he did. In the doghouse, Long asked Cox if they were done; Cox replied he had done all he could. Pendergraff told Long to "get this show on the road" because cement trucks were waiting. Hargis, now inside the doghouse, said, "yeah, let's go." Long and Anderson, unaware that Williams was still atop the mast making repairs, went outside to their controls. Each looked up and saw no one on the mast because Williams was behind the top drive. Anderson had a file in his hand to repair a cross-threaded pipe section sitting in the slip, but Long needed to raise the top drive so that Anderson could access the pipe threads. Long asked Anderson if he ...