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

Breaking Legal Developments

06-27-2012

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

 

EXECUTIVE SUMMARY:      This weekly newsletter covers:

  1. ALA. Dist Ct. approves use of Process of Elimination in Robe fire case


(1) ALA. DIST CT. APPROVES USE OF PROCESS OF ELIMINATION IN ROBE FIRE CASE

In Harold A. Ledbetter v. Blair Corporation(June 27, 2012), http://www.leagle.com/xmlResult.aspx?xmldoc=In%20FDCO%2020120627E22.xml&docbase=CSLWAR3-2007-CURR, the United States District Court, M.D. Alabama, Eastern District reviewed a products liability action arises out of the tragic death of seventy-year-old Annie Thrash, who on October 30, 2008, while alone in her apartment, was fatally burned when the 100% cotton chenille robe she was wearing somehow ignited. How the robe ignited and why are critical issues for determining the liability, if any, of Defendant Blair, LLC ("Blair"), which marketed and sold the chenille robe. Multiple expert witnesses have been engaged on both sides to unravel the clues. Before the court were motions that seek to exclude part or all of the testimony of seven of those expert witnesses, pursuant to the standards of Federal Rule of Evidence 702 and Daubert v. Merrell-Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993).2 (See Docs. # 169, 170, 171, 172, 174.) The motions have been fully briefed and are ready for disposition. The court's ruling on the expert using a process of elimination is below.

In the dark, early morning hours of October 30, 2008, a resident of apartment 3-E at Arbor Place Apartments was awakened by smoke and called 911. The first responders on the scene were the Opelika Police Department and the Opelika Fire Department. Apartment 3-E was inspected. There was light smoke, but no fire. Next door, at apartment 3-D, however, the front door was hot to the touch. The police made a forcible entry into apartment 3-D, and were met by heavy smoke and heat. Firefighters followed, with hose in tow, and doused the flames that had flared up from the sofa when the door was opened. A body was found lying supine on the floor between the coffee table that adjoined the burned sofa and the television. The victim was Annie Thrash. The burns were fatal, covering 70 to 80 percent of her body. The 100% cotton Blair chenille robe and pajamas she had been wearing were burned off; only tattered remnants remained, and those remnants were virtually unrecognizable.

The heaviest smoke damage was in the living room, but the fire damage was contained primarily to the sofa. It was determined that the initial fire most likely depleted the oxygen, causing the fire to extinguish itself and preventing its spread to other areas. The heat nonetheless was lethal. Although not burned, Ms. Thrash's Chihuahua was found dead in its bed in Ms. Thrash's bedroom. Temperatures inside the apartment reached 500 degrees Fahrenheit, which was more than sufficient to melt and silence the smoke alarm in the hallway going to the bedroom.

Precisely what Ms. Thrash was doing moments before the fire ignited is not known. There were no eyewitnesses. There are some clues, however, from the apartment itself. For instance, cold water was running in the kitchen sink. A pot filled with water was atop the gas stove burner that was in the "on" position emitting natural gas, but not burning, and there was a strong odor of natural gas in the kitchen. Additionally, information about Ms. Thrash was garnered from her friends and family. That information such as that she often slept on the sofa to alleviate back pain, that she was a non-smoker, and that she was, as her neighbor said, "early to bed, and early to rise" has been given varying degrees of importance by the parties in trying to piece together the final moments in Ms. Thrash's life.

The experts retained by Plaintiff and Blair, not surprisingly, disagree about how the fire started and what caused Ms. Thrash's death. Plaintiff, as the executor of his mother's estate, brings this suit on the theory that Ms. Thrash was in the kitchen preparing her breakfast when she reached over the gas stove, and her robe caught fire from the flames on the gas stove burner. The robe engulfed Ms. Thrash in flames, making her a human torch. Ms. Thrash fled the kitchen, passed through the small dining room, and went into the living room, where she fell to the floor, and the burning robe ignited the sofa as she passed by it. Plaintiff's theory rests on grounds that the Blair robe Ms. Thrash was wearing was unreasonably dangerous in that it was highly flammable and contained a design defect in that the long sleeve, eight button, loose-fit design made it more susceptible to cooking fires. Based on this theory, Plaintiff brings claims alleging a violation of the Alabama Extended Manufacturer's Liability Doctrine, negligent failure to warn and/or conduct a timely recall, and wantonness. (Doc. # 55.)

Blair filed an answer denying all material allegations and asserting certain defenses. (Doc. # 66.) Blair also retained its own experts who opine that Plaintiff's theory cannot be substantiated. Those experts opine, for example, that it cannot be proven that the fire ignited in the kitchen, rather than at the sofa.

James Munger has an associate degree in fire science, and a doctorate in occupational safety and health engineering. Dr. Munger offered three opinions that are the subject of Blair's Daubert challenge. The first pertains to testimony about the cause and origin of the fire. The second is that the level of Ms. Thrash's carboxyhemoglobin (15%) is consistent with the fire in the sofa being secondary to the burning of Ms. Thrash's robe. The third pertains to his opinions that the videos he reviewed showed "rapid" flame spread and "easy" ignition of the Blair chenille robe.

a. Cause and Origin

Mr. Munger offers proposed expert testimony on the cause and origin of the fire.9 He opines that there were two origins of the fire. The initial origin was in the kitchen at the stove with the ignition of Ms. Thrash's robe after coming in contact with the left front burner. The sofa, according to Mr. Munger, was a secondary origin. The front burner of the gas stove was the source. Mr. Munger explains that he formulated his opinion based upon the standards set forth by the National Fire Protection Association in its publication NFPA 921: Guide for Fire and Explosion Investigations. The parties do not dispute that NFPA 921 is an accepted methodology for the investigation and analysis of fires and explosives. See Tunnell v. Ford Motor Co., 330 F.Supp.2d 707, 725 (W.D. Va. 2004) (observing that many courts have recognized NFPA 921 as "`a peer reviewed and generally accepted standard in the fire investigation community'" (quoting Travelers Prop. & Cas. Corp. v. Gen. Elec. Co., 150 F.Supp.2d 360, 366 (D. Conn. 2001))).

However, Blair seeks to exclude Mr. Munger's testimony on the grounds that he misapplied NFPA 921 standards and did not apply the methodology (NFPA 921) reliably to the facts of the case. Blair argues that Mr. Munger improperly determined the origin of the fire before he determined a source, disregarded NFPA 921 methodology by using a faulty process of elimination ("negative corpus") to define the stove as the ignition source,10 and failed to properly investigate other potential causes of the fire. Plaintiff responds that Blair's criticism is unwarranted, that Blair misinterprets portions of NFPA 921, and that Mr. Munger adequately explains in his report, deposition and affidavit his strict adherence to NFPA 921's procedures.

At this time, Blair has not demonstrated that Mr. Munger misapplied the NFPA 921 guidelines in such a way to render his methodology unreliable. In his affidavit, Mr. Munger cites various guidelines of the NFPA 921 that demonstrate that his methodology in forming his opinions as to the source and origin of the fire were consistent with NFPA 921. In particular, he cites 18.1.3 (addressing the scenario when there is no physical evidence of an ignition source), 18.2.3 (addressing point and area of origin determinations where a single point cannot be identified), and 18.1.5 (addressing the role of ignition sequence in determining fire cause). He also adequately explains how the process of elimination plays a legitimate and integral role under NFPA 921 for selecting a final hypothesis (see Doc. # 194, at 28-29), and that "negative corpus" is a different concept from the process of elimination outlined in NFPA 921. Based on the evidentiary submission pertaining to Mr. Munger's opinions, Blair has not persuaded the court that Mr. Munger's method of examining possible ignition sources is contrary to NFPA 921. As set forth by the standards in Daubert and Rule 702, the testimony of Mr. Munger as to the origin and cause of the fire qualifies as reliable testimony. Mr. Munger has at least good grounds for his conclusions. Blair's various concerns about Mr. Munger's application of NFPA 921 methodology are properly reserved for cross-examination. The motion to exclude in this regard, therefore, is due to be denied.

b. Fit Between Expert Opinion and Facts

Blair argues that Mr. Munger's opinion that the fire was caused when a flame at the stove ignited the robe is speculative, given the absence of fire damage to the stove, photographic or testimonial evidence of a fire at the stove, or evidence showing burned remnants of Mrs. Thrash's robe in the kitchen. This is one example, according to Blair, as to why there are too many analytical gaps between Mr. Munger's opinion and the actual facts. To demonstrate that the expert testimony is relevant, there "must be an appropriate `fit' with respect to the offered opinion and the facts of the case." McDowell v. Brown, 392 F.3d 1283, 1299 (11th Cir. 2004). "For example, there is no fit where a large analytical leap must be made between the facts and the opinion." Id.

In his report, deposition testimony, and affidavit, Mr. Munger details that he meticulously followed NFPA 921's scientific method in formulating his opinions. He garnered facts about the fire by examining the scene of the fire, and by reviewing photographs and reports, statements, deposition testimony, the fire behavior of the Blair robe material, observations of the fire department personnel as to the condition of the stove, and information gathered about Ms. Thrash's routine activities. The facts and data collected were analyzed in the context of Mr. Munger's knowledge, training, experience, and expertise. He next developed a hypothesis based on the empirical data, and not on speculation. That hypothesis, as stated, was that the initial ignition took place at the stove while Ms. Thrash was cooking breakfast; the ignition source was the left front burner; and the first material ignited was the robe. The ignition of the sofa was secondary and occurred as Ms. Thrash, while on fire, traveled past the sofa. Moreover, as to the absence of fire damage in the kitchen, Mr. Munger hypothesized that Ms. Thrash took the initial burning materials (the robe) out of the kitchen and into the living room. He then tested his hypothesis using fire modeling and conducted a carbon monoxide exposure analysis, which he concluded demonstrated a carbon monoxide ("CO") level consistent with the CO that would be produced from the burning robe all by itself. Mr. Munger performed this testing to ensure that his hypothesis could withstand a careful and serious challenge. Based on that testing, he concluded that there were no other causes consistent with the data. In sum, the record is sufficient to demonstrate the requisite fit.

c. Mr. Munger's Analysis of CO levels

Mr. Munger used the Stewart and Coburn-Forster-Kane ("CFK") equations to determine the level of CO one would expect to find in Ms. Thrash had the robe ignited first, versus if the sofa had ignited first. To obtain CO data to input into these equations, Mr. Munger ran a fire model, known as the Fire Dynamics Simulator ("FDS"). He also relied on an article titled, "Full-Scale Burning Behavior of Curtains and Draperies," by L. Dow Moore, for CO data.

Blair contends that Mr. Munger's opinion related to Ms. Thrash's CO level is unreliable for three main reasons: first, that the FDS model that Mr. Munger employed gives inaccurate CO results because it does not account for specific inputs related to Ms. Thrash; second, that the CO calculations from the Moore article are inapposite and inapplicable to the present case; and third, that the CFK equation cannot accurately predict the CO levels in an individual analogous to Ms. Thrash. Plaintiff argues that these arguments lack merit, and the court agrees. First, as pointed out by Mr. Munger, NFPA 921 adopts the FDS Manual and the CFK equation as reliable and valid methods to test a hypothesis on the source and origin of a fire. (Munger's Aff. 18-19 (quoting NFPA 921, 23.10.8, 23.10.8.2, 23.10.8.2.2).) Additionally, Mr. Munger attests that the CFK formula is "contained in the high[ly] recognized Society of Fire Protection Engineers Handbook of Fire Protection Engineering." (Munger's Aff. 19.) Based upon the FDS's recognition by the NFPA 921, as well as the testimony about how Mr. Munger managed this model, there are good grounds to conclude that Mr. Munger's employment of the FDS test does not fall short of the expert standards established in Daubert and Rule 702.

Second, the court finds that the discrepancy between the CO data from the Moore article and the CO data in the present case is an appropriate issue for cross-examination, but does not warrant exclusion of this evidence. Mr. Munger's affidavit reveals that he has a basis to conclude that the differences in 100 ppm of CO on the 100% cotton worn by Ms. Thrash and the cotton blend referenced in the Moore article does not alter the reliability of his fire modeling. (Munger's Aff. 22.) Whether his conclusion is correct is a matter for cross-examination, since the discrepancies go to the weight of his conclusions. Blair has not presented sufficiently compelling evidence that the Moore article conclusions are so inapposite to the present case that they render Mr. Munger's modeling unreliable and invalid to the point of exclusion.

Third, based upon a review of Mr. Munger's affidavit, indicating, among other things, that the Society of Fire Protection Engineers has approved the use of the CFK equation in predicting CO levels in humans, and the affidavit testimony Mr. Munger provided to demonstrate the steps he took to reliably model and conservatively estimate the CO levels, the court finds that Blair's critique of the CFK equation is appropriate for cross-examination, but is not sufficient for exclusion. In sum, Mr. Munger will be permitted to testify about Ms. Thrash's CO levels and the conclusions he reached, and Blair will be allowed to challenge those conclusions at trial.

d. Flammability of the Robe

Finally, Blair argues that Mr. Munger must be excluded from providing any testimony about the flammability of the robe because he admits that he is not an expert in that field. (See Munger's Dep. 17.) Of particular concern to Blair is Mr. Munger's testimony that he reviewed the videos on flammability testing conducted on exemplar robes in accordance with Flammable Fabrics Act (i.e., the Govmark testing), and that the testing showed "rapid" flame spread and "easy" ignition of the cotton robe. In response, Plaintiff concedes that Mr. Munger will not be offering any design opinions related to the flammability of the robe. Plaintiff argues, however, that Mr. Munger is qualified to comment on the testing videos he reviewed and to consider it, along with other empirical data, in forming his opinion about the source and origin of the fire.

Based upon careful consideration of the arguments, Blair's motion to exclude any testimony from Mr. Munger in which he would offer design opinions related to the flammability of the robe is due to be granted, given Plaintiff's concession. The motion to exclude is due to be denied, however, to the extent that Mr. Munger will be permitted to testify that he watched the videos, but ruling will be reserved for trial context on Mr. Munger's opinion of what the videos demonstrated to him.

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.