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Breaking Legal Developments

03-15-2004

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

 

EXECUTIVE SUMMARY:      This weekly newsletter covers:

  1. Tenth Circuit Excludes Expert Opinion


(1) TENTH CIRCUIT EXCLUDES EXPERT OPINION

In Truck Insurance Exchange v. Magnetek, Inc., No. 03-1026, Feb. 25, 2004, the Tenth Circuit Court of Appeals discussed an expert’s reliance on pyrolysis. On November 9, 1998, a fire destroyed Sammy's Restaurant in Lakewood, Colorado. In this subrogation case, plaintiff Truck Insurance Exchange claimed that a fluorescent light ballast manufactured by defendant MagneTek, Incorporated, caused the fire, and sought to recover over $1.5 million paid out to Sammy's. The district court's jurisdiction was based on diversity between Truck, a California corporation, and MagneTek, a Delaware corporation with its principal place of business in Tennessee. See 28 U.S.C. §§ 1332, 1446.

Following the completion of discovery, MagneTek moved to exclude certain opinion testimony of Truck's experts under Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993). The district court granted MagneTek's Daubert motions in part, finding that the experts' conclusions about the cause of the fire were not based on a sufficiently reliable scientific theory. The district court then ruled that without such expert testimony a rational trier of fact could not find for Truck, and granted summary judgment in favor of MagneTek. Truck appealed both of these decisions and this court affirmed.

The afternoon of November 9, 1998, crews from the West Metro Fire Protection District responded to a report of smoke coming from Sammy's Restaurant. When firemen arrived at the restaurant they encountered heavy smoke, but no open flames. The firemen could not locate the source of the smoke until the fire broke through the kitchen floor and the ceiling of the storage area below. The fire then quickly spread and destroyed the building.

Investigators from the West Metro Fire Protection District and Phoenix Investigations, a private fire inspection company hired by Truck, performed the initial investigation of the fire. They began by sifting through the fire debris to identify burn patterns and other evidence of the fire's origin and cause. The investigators concluded that the fire started in the void space between the basement storeroom ceiling and the kitchen floor.

Amongst the debris in the basement, the investigators found a fluorescent light fixture that had been mounted to the storeroom ceiling. Three investigators, Lt. Dan Pfannenstiel of the West Metro Fire Protection District, and Thomas McAdam and George Hodge of Phoenix Investigations, concluded that the light fixture somehow started the fire because there were no other apparent heat sources in the area of the fire's origin. Knowing that fluorescent light fixtures contain a component called a "ballast" that is designed to control the amount of heat the fixture can generate, the investigators then focused on the ballast as a likely cause of the fire.

After their initial examination, Pfannenstiel and McAdam turned the fixture over to Hodge of Phoenix Investigations and Dr. Joe Romig of Ponderosa Associates, another investigation firm hired by Truck, for further analysis. Hodge disassembled the fixture and examined the various parts of the ballast in an effort to determine both its manufacturer and whether it had in fact overheated. Eventually, these analysts determined that the ballast had been manufactured by MagneTek. They also observed oxidation patterns on the fixture and discoloration of the ballast's heating coils that suggested the ballast had shorted, causing internal overheating prior to the external fire.

The ballast contained a device called a thermal protector, which is designed to shut off power running through the fixture if the temperature exceeds 232 Fahrenheit, well below the approximately 400F generally believed to be the minimum temperature necessary to ignite wood. Once the temperature falls sufficiently, the thermal protector restores power. Both parties agreed that the thermal protector in the ballast from Sammy's continued to function properly even after the fire.

Because they had eliminated any other heat source, Truck's experts remained convinced that the ballast was the likely cause of the fire. They therefore began to study how the ballast might have started a fire in spite of the functioning thermal protector.

Truck's experts conducted a series of simulations, at least one of which showed that a shorted "exemplar" (or test) ballast of a type similar to that found at Sammy's reached temperatures of 340 before the thermal protector began to cycle on and off. The test ballast eventually reached stable temperatures over 300.

Though both this peak temperature and the stable temperature are significantly below normal wood ignition temperature, Romig proposed to testify that this level of overheating was sufficient to have caused the Sammy's fire. Romig based his conclusion that the shorted ballast could have and, in his opinion, did start the fire on a theory called "pyrolysis," which posits that wood can catch fire at temperatures below 400 if it is exposed to such temperatures over a long enough period of time. Pfannenstiel's testimony likewise would have been that in his opinion the ballast caused the fire. His opinion was based not on scientific theory, but on his experience as an investigator and his having eliminated any other possible heat source as a cause.

MagneTek, disagreeing that pyrolysis could be relied upon to explain the start of the fire, and further disagreeing that the evidence supported the conclusion that there was no other possible source of the fire, moved to exclude the opinions of both Romig and Pfannenstiel and for summary judgment. Applying Daubert and its progeny, the trial court granted these motions to the extent the experts expressed opinions about the actual cause of the fire. The end result was that Truck had no expert testimony showing that the ballast could have reached temperatures approaching 400 or that wood can catch fire below that temperature. The court then concluded that without any such evidence, Truck could not establish causation, an essential element of all its claims, and granted MagneTek's motion for summary judgment.

Rule 702 of the Federal Rules of Evidence states:

If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training or education, may testify thereto in the form of an opinion or otherwise, if (1) the testimony is based upon sufficient facts or data, (2) the testimony is the product of reliable principles and methods, and (3) the witness has applied the principles and methods reliably to the facts of the case.

Fed. R. Evid. 702. The Supreme Court has laid out a framework for analyzing proffered expert testimony in the so-called Daubert trilogy, which consists of Daubert, General Electric Co. v. Joiner, 522 U.S. 136 (1997), and Kumho Tire Co., Ltd. v. Carmichael, 526 U.S. 137 (1999).

Analysis under Daubert is intended to ensure that the evidence is both "reliable" and "relevant." See 509 U.S. at 589. In this case, the district court addressed only the first of these requirements, and found that the conclusions of Dr. Romig and Lt. Pfannenstiel were not sufficiently reliable.

To determine the reliability of expert testimony, courts assess "whether the reasoning or methodology underlying the testimony is scientifically valid." Daubert, 509 U.S. at 592-93. In Daubert, the Court listed four factors that, while not an exclusive list of considerations for a trial court, will often be important in making this assessment: (1) whether the opinion has been subjected to testing or is susceptible of such testing; (2) whether the opinion has been subjected to publication and peer review; (3) whether the methodology used has standards controlling its use and known rate of error; (4) whether the theory has been accepted in the scientific community. See Id. at 590.

The court summarized the burden of the plaintiff to show the reliability of proffered expert opinions this way:

The plaintiff need not prove that the expert is undisputedly correct or that the expert's theory is "generally accepted" in the scientific community. Instead, the plaintiff must show that the method employed by the expert in reaching the conclusion is scientifically sound and that the opinion is based on facts, which sufficiently satisfy Rule 702's reliability requirements.

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

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