interFIRE Home interFIRE Home interFIRE VR Support Training Calendar Training Center Resource Center Message Board Insurance Info

Breaking Legal Developments

02-14-2011

Published by:
Peter A. Lynch, Esq.
of Cozen O'Connor
palynch@cozen.com
http://www.cozen.com

 

EXECUTIVE SUMMARY:      This weekly newsletter covers:

  1. NY DIST CT Permits Plaintiff's Experts to Testify the Coffee Maker Subject to Recalls Caused the Fire


(1) NY DIST CT PERMITS PLAINTIFF'S EXPERTS TO TESTIFY THE COFFEE MAKER SUBJECT TO RECALLS CAUSED THE FIRE

In Denny v. Bunn-O-Matic, the United States District Court, N.D. New York, http://www.leagle.com/xmlResult.aspx?xmldoc=In FDCO 20110215931.xml&docbase=CSLWAR3-2007-CURR, (February 14, 2011, No. 5:08-CV-838, Plaintiff brought an action against the defendant seeking compensation for damages she sustained when her Baldwinsville, New York, home was destroyed by fire on January 26, 2006. Plaintiff asserted that a coffee maker that was manufactured by defendant was defective, unreasonably dangerous, and caused the fire. The complaint was initially filed in the Supreme Court, Onondaga County, on June 23, 2008. On August 1, 2008, defendant removed the action to the district court pursuant to 28 U.S.C. § 1441. The court has jurisdiction under 28 U.S.C. § 1332.

The discovery process has ended, and defendant moved for: (1) an order precluding the testimony of plaintiff's experts under Federal Rule of Evidence 702 and Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S.Ct. 2786 (1993); (2) spoliation sanctions for plaintiff's failure to preserve evidence; and (3) summary judgment pursuant to Federal Rule of Civil Procedure 56 dismissing the complaint in its entirety. Plaintiff opposed.

Plaintiff purchased the coffee maker at issue in late 2004 or early 2005. It is undisputed that the model coffee maker at issue was subject to two product recalls. The first recall was announced on June 10, 2005, and warned that the coffee maker posed a fire hazard. The second recall, dated July 25, 2006, expanded the first recall to include later-manufactured coffee makers of this particular model. It was alleged that these recalls were prompted by 33 fires in which this model coffee maker was implicated.

On the morning of January 26, 2006, plaintiff, who lived alone, made coffee per her routine and left for work. At about 3:00p.m. that afternoon Denny was notified that there had been a fire at her house. It appears undisputed that the fire originated in the kitchen, in the area where the coffee maker sat on a counter. Plaintiff maintained that the coffee maker was plugged directly into a wall outlet near the counter and was the only appliance plugged into that outlet.

An Onondaga County fire investigator, arrived at the fire scene approximately 45 minutes after the fire was reported. During his investigation he placed the remains of the coffee maker as well as the wall outlet and associated wiring in a plastic evidence bag. Ryan left this bag on the counter in the fire-damaged kitchen. He denied disassembling or altering the coffee maker. He noted that the home had "knob and tube" wiring that, although common in older construction, that would not meet current electrical codes. He concluded that the fire started in the area where the coffee maker was plugged into the wall outlet, but he was unable to definitively determine whether the coffee maker or the outlet and its wiring caused the fire.

The next day, January 27, 2006, a claim representative for State Farm Insurance Company ("State Farm"), plaintiff's insurance provider, responded to the scene and took possession of the plastic bag of evidence that had been left on the counter. He locked the bag in the trunk of his car and then boarded-up the windows and doors of the house to preserve the scene.

Also on January 27, 2006, a private cause and origin investigator, was retained by State Farm to investigate the fire. On that date, the adjuster gave the investigator a plastic bag containing the coffee maker, outlet, and wiring. The investigator claimed that when he received the bag it was "semi-sealed"—meaning it was "rolled up" with evidence tape on the outside of the bag but not covering the opening. Ivory placed this bag in a storage facility at his lab. The investigator performed a physical inspection of the fire scene on January 28, 2006, removed a wall switch and its wiring from the kitchen, and utilized a hydrocarbon detector. He denied altering the physical evidence in any way and transferred the evidence to another expert on February 3, 2006. The fire investigator concluded that the fire was caused by the subject coffee maker.

A forensic electrical engineer retained by State Farm, conducted an examination of the physical evidence over the course of several days in February 2006, during which he used a temperature meter. The engineer denied "disassembling" the coffee maker but acknowledged "pulling back" the covers of two internal wires. He claimed that those internal wires were disconnected from the coffee maker when he received the evidence. The engineer released an initial report on June 5, 2006, which concluded that the coffee maker's internal wires had arced at points referred to as "3X" and "5X" and caused the ignition of the fire. On April 19, 2010, after conducting additional tests and receiving new information, the engineer provided a supplemental report indicating that an arc at point "2X" could also have ignited the fire.

On April 24, 2006, the Vice President of quality assurance for defendant, and defense investigator retained by defendant, examined the scene and the physical evidence. Both concluded that the coffee maker was not defective, did not exhibit a failure similar to the reason for the product recalls, and did not cause this fire.

Defendant argued that plaintiff's claim should be dismissed because: (1) plaintiff could not establish that the coffee maker was defective or caused the fire; (2) plaintiff's representatives altered the physical evidence and failed to preserve the scene; and (3) plaintiff's experts were unreliable and their testimony should be precluded.1 Since plaintiff's ability to establish a prima facie case hinges on the admissibility of the expert testimony, the first and third issues were analyzed together.

It is well-established that "[u]nder Daubert, the district court functions as the gatekeeper for expert testimony whether proffered at trial or in connection with a motion for summary judgment." Major League Baseball Props., Inc. v. Salvino, Inc., 542 F.3d 290, 311 (2d Cir. 2008) (internal quotation marks and citation omitted). Such testimony must be reliable and is properly excluded if it is "speculative or conjectural." Id.

Defendant claims that plaintiff's fire investigator's findings were unreliable because he failed to consider the wall outlet as a possible source of the fire and did not properly calibrate his hydrocarbon detector. The investigator explained that he had not calibrated the detector in the six months prior to the fire investigation because he "readily change[s] the tip" and cleans it after every use. It is unclear whether this guarantees the accuracy of the detector. Regardless, it appears that this device was used to detect signs of accelerants to indicate that a fire was intentionally set. Defendant itself did not allege that this fire was intentionally set and there was no evidence to suggest otherwise. Defendant's own representatives and experts agreed that the point of origin was in the area of the kitchen where the coffee maker was plugged into the wall. Also, plaintiff's fire investigator did not rely on the detector's readings alone. He noted that his visual inspection of the premises revealed "no signs of pour patterns, trailers, or intentional sets."

His report showed that he considered alternative sources of the fire. He examined and ruled out as a possible cause the dishwasher, refrigerator, toaster, stove, range hood, microwave, and a small television—all of which were located in the kitchen. He also removed a light switch as well as the wires "directly above and below the wall outlet that the coffee maker was plugged into" and provided same to the engineer for analysis. In reaching his conclusion that the coffee maker caused the fire, he relied, in part, on the numerous signs of arcing inside the coffee maker that the engineer analysis later revealed.

It cannot be said that his findings were unreliable or that he ignored alternative sources of the fire. Accordingly, his expert testimony was permitted.

Defendant claims that the engineer's findings were unreliable because they are based on an incorrect assumption that one of the internal wires was rated at only 90EC, he subsequently changed his opinion, he failed to test his theories, he did not properly calibrate his temperature meter, and he ignored the possibility that the wall outlet caused the fire.

First, to reach his conclusion that the operating temperature exceeded the temperature rating of the "neutral wire" inside the coffee maker, the engineer assumed that this wire was not rated higher than 90EC. However, this was a reasonable assumption since a neighboring wire was labeled with a 200EC rating and the neutral wire was unlabeled. He testified that the National Electric Code allows wires to be unlabeled only if their temperature rating is less than 90EC (194EF). When he tested an exemplar coffee maker, he found that the temperature reached 210EF-16EF higher than what an unlabeled wire could handle. He concluded that this was "the most likely explanation for the short" that started the fire.

Defendant's expert testified that the neutral wire was actually rated at 200EC and, therefore, could withstand the highest temperature measured by plaintiff's test. He claimed that he was "not aware" of the requirement that a wire be stamped with a 200EC rating. Defendant also submitted purchase orders from January 2005 showing that 200EC-rated wire were purchased and used in the model coffee maker at issue. Plaintiff's expert maintained that those purchase orders were irrelevant as they do not establish that this specific coffee maker, which may have been purchased as early as 2004, contained 200EC-rated wire.'

Considering these opposing arguments, and viewing the facts in the light most favorable to plaintiff, it cannot be said that plaintiff's assumption that the internal wire was rated at 90EC was "so unrealistic and contradictory as to suggest bad faith." Zerega Ave. Realty Corp. v. Hornbeck Offshore Transp., LLC, 571 F.3d 206, 214 (2d Cir. 2009) (internal quotation marks omitted). "Other contentions that the assumptions are unfounded go to the weight, not the admissibility, of the testimony." Id.

Second, defendant's attempt to discredit the engineer because he supplemented his report was not persuasive. His initial report indicated that he found five different arcs in the wiring inside the coffee maker and identified the 3X and 5X arcs as the "most probable" source of ignition. The initial report also "suggested" that the other three arcs were the result of the fire, not the cause. In his supplemental report, he identified new evidence and concluded that the 2X arc could have been the source of ignition. He also noted that his "opinion stated in the June 5, 2006 report, that `an internal electrical short in the Bunn Model GR10 coffee maker was the source of ignition of this fire remains unchanged." Therefore, his supplemental report was consistent with the initial report and did not call into question the reliability of his testimony.

Third, his performed tests on exemplar coffee makers. His report indicated that he attached a temperature meter to the coffee maker's tank at the location of the 3X and 5X arcs, filled the tank with water, and found that the tank reached 210.8EF after 48 minutes. Moreover, the case cited by defendant for the proposition that expert testimony should be excluded if the expert fails to sufficiently test all theories, Brooks v. Outboard Marine Corp., 234 F.3d 89 (2d Cir. 2000), was distinguished here for the same reason at least two other district courts have distinguished it. See Tedone v. H.J. Heinz Co., 686 F.Supp.2d 300, 311 (S.D.N.Y. 2009); Bah v. Nordson Corp., No. Civ. 9060, 2005 WL 1813023, at *8 (S.D.N.Y. Aug. 1, 2005). In Brooks, the expert testimony was excluded because the expert did not have experience with the kind of boat and engine at issue, never saw the actual evidence, did not speak with witnesses, was unaware of the basic facts of the incident, and did not reconstruct the accident. Here, the engineer, has been a forensic electrical engineer for 17 years, has an abundance of experience investigating and analyzing failures in electrical appliances that cause fires and property damage. Further, he examined the actual coffee maker and wiring in question, inspected the fire scene, spoke with witnesses and investigators, and was familiar with the facts.

Fourth, regarding the temperature meter, he testified at his deposition that "the meter was calibrated at the time of the test." Therefore, defendant's claim that Hahn did not calibrate the meter was without merit. Finally, his initial and supplemental reports showed that he inspected the wall outlet but ruled it out as a cause of the fire because the damage was attributed to melting from the fire and not to "any abnormal electrical activity on the wiring or contacts." He also noted that the junction box and switch that the fire investigator had removed "showed no evidence of abnormal electrical activity nor did any of the house wiring retrieved from the scene." Therefore, he did consider alternative sources of the fire.

In sum, plaintiff's experts analyses and conclusions were relevant, reliable, and would help a jury understand the cause of this fire. Defendant's criticisms go towards the weight of this evidence, not its admissibility. Defendant could subject the experts to cross-examination and present its own expert testimony at trial. Therefore, the plaintiff's expert testimony will be permitted. It follows that plaintiff's claim survives a motion for summary judgment as these experts establish a causal link between defendant's product and the fire in plaintiff's home.

Plaintiff's experts' analyses and conclusions were relevant, reliable, and would help a jury understand the cause of this fire. Therefore, the plaintiff's expert testimony was permitted and, in turn, plaintiff can establish a causal link between defendant's product and the fire in her home.

ORDERED, that

1. Defendant's motion to preclude plaintiff's experts' testimony was DENIED;

2. Defendant's motion for summary judgment was DENIED

1. Defendant did not question either expert's credentials.

Mr. Lynch can be reached at Cozen and O'Connor, 501 West Broadway, Suite 1610, San Diego, California 92101, 800-782-3366 (voice), 619-234-7831 (fax), palynch@cozen.com (e-mail), http://www.cozen.com. Follow us on Twitter at @firesandrain.

Please direct comments, suggestions, stories, and other items to the author by e-mail at palynch@cozen.com

Home | interFIRE VR Support | Training Calendar | Training Center | Resource Center | Message Board | Insurance Info
Sponsorship Opportunities
Web Site Designed for 800 x 600 by Stonehouse Media Incorporated® Copyright © 2014 All Rights Reserved.