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Breaking Legal Developments


Published by:
Peter A. Lynch, Esq.
of Cozen O'Connor


EXECUTIVE SUMMARY:      This weekly newsletter covers:

  1. Texas Court Discusses Expert's Qualifications on Fire Causation


In Anita Pugh, et al v. Conn's Appliances (3/18/2004), NO. 09-02-514 CV, the Ninth District Court of Appeals, reviewed a claim that an expert lacked qualifications to testify on fire causation. The Appellants argued the trial court erred in admitting expert testimony, and they asked for a new trial.

In 1997, the Pughs bought, and had installed in their apartment, a window air conditioner sold to them by Conn's Appliances, Inc. and manufactured by U.S. Natural Resources (doing business as Friedrich Air Conditioning and Refrigeration Company). Two years later, fire destroyed the apartment. The Pughs' daughter, Whitney, testified she went into the room where the window air conditioner was located and saw flames in the unit. Appellants' expert attributed the fire to loose connections in the air conditioner. However, appellees' expert, Hank Bardenhagen, testified the fire did not originate in the unit. The Pughs contended the trial court erred in admitting Bardenhagen's testimony, because they say he was not qualified to offer the opinion and his methodology was unreliable. Appellees responded that the Pughs did not timely object to the testimony. When appellees offered Bardenhagen's report into evidence, the Pughs objected that he had "not been shown to possess any certification to appear before this Court as an expert witness." The objection put the trial court on notice of appellants' objections to Bardenhagen's qualifications as an expert. But, after overruling the "certification" objection, the trial court was not informed of any other objection to the reliability of Bardenhagen's testimony. Nor was a motion made to strike his testimony on reliability grounds. There being no objection presented to the trial court that the methodology was unreliable, the Court of Appeals considered only that part of issue one dealing with Bardenhagen's qualifications to testify as an expert.

Whether an expert is qualified is a preliminary question the trial court decides. The Court of Appeals reviews the trial court's decision under an abuse of discretion standard. Gammill v. Jack Williams Chevrolet, Inc., 972 S.W.2d 713, 718-19 (Tex. 1998). The test is whether the offering party establishes that the expert has knowledge, skill, experience, training, or education regarding the issue before the court that would qualify the expert to give an opinion on that particular subject. See Tex. R. Evid. 702; Roberts v. Williamson, 111 S.W.3d 113, 121 (Tex. 2003). Here, the specific subject matter is the cause and origin of the fire. The question the court considered is whether Bardenhagen has specialized knowledge to assist the jury in understanding that issue. See Helena Chem. Co. v. Wilkins, 47 S.W.3d 486, 500 (Tex. 2001).

Appellants cite to Bardenhagen's speculative statement -- "I imagine -- I'm not an engineer" -- as one disqualifying him from testifying as an expert. But this statement, made during his trial testimony, did not refer to Bardenhagen's opinion on the origin or cause of the fire. Bardenhagen was commenting on the testing process used by Johnny Cmaidalka, plaintiffs' engineer expert, and on the failure to properly preserve the evidence. Appellants immediately objected, and the trial court sustained the objection to any speculation by Bardenhagen. Bardenhagen did not expand on his statement, and the comment did not disqualify him from testifying as an expert on matters within his knowledge.

The Pughs argue Bardenhagen was not qualified to testify for various reasons: he is not an engineer and has no electrical degree or training; he is not a peace officer or fire marshal; he was not a state or privately certified fire investigator at the time of his investigation; and at the time of his trial testimony he had only one private certification, which he received after he prepared his report.

Appellees offered evidence of Bardenhagen's qualifications to testify to fire causation. He has an associate degree in fire service technology and is familiar with fire and explosive investigation guidelines put out by the National Fire Protection Association. He began his career as a firefighter and ultimately became a fire investigator. He has held certifications as an arson investigator, firefighter, peace officer, and firefighter instructor. And the jury could have inferred that once he began working in the private arena, he was not allowed to hold the public sector certifications. In the private sector, Bardenhagen has been investigating fires for approximately twelve years. After preparing his report and prior to his trial testimony, he obtained a certification as a fire investigator. Bardenhagen says he has investigated thousands of fires, lectured on fire investigations involving electrical fires, and testified in federal and state courts as a cause and origin fire expert in both civil and criminal cases. The evidence of his work background, his education, his knowledge, and experience in fire investigation demonstrate Bardenhagen had expertise concerning the actual subject about which he offered an opinion. See Gammill, 972 S.W.2d at 718-19; Broders v. Heise, 924 S.W.2d 148, 152-53 (Tex. 1996). Issue one is overruled.

In issue two, the Pughs argued the trial court erred in admitting Bardenhagen's testimony on burn patterns, because the burn pattern testimony was "new information" not disclosed prior to trial. Appellees argue we should not consider this issue, because the Pughs failed to designate it in their request for preparation of a partial reporter's record. See Tex. R. App. P. 34.6 (c). Rule 34.6 (c) provides, in part, as follows:

(1) Effect on Appellate Points or Issues.

If the appellant requests a partial reporter's record, the appellant must include in the request a statement of the points or issues to be presented on appeal and will then be limited to those points or issues.

(2) Other Parties May Designate Additions.

Any other party may designate additional exhibits and portions of the testimony to be included in the reporter's record.

Tex. R. App. P. 34.6(c)(1), (2). The Pughs' statement of the issue in their partial record request complains only of the lack of Bardenhagen's qualifications to testify as an expert. If the Court of Appeals strictly enforced the rule here, it would not consider any point or issue not included in the partial record request -- "litigants who ignore our rules do so at the risk of forfeiting appellate relief." See Bennett v. Cochran, 96 S.W.3d 227, 230 (Tex. 2002)

The Pughs repeatedly objected at trial to Bardenhagen's burn pattern testimony on the failure-to-disclose ground. Appellees were aware of the Pughs' objections and presented the trial judge with reasons why those objections had no merit. In addition, appellees responded to the Pughs' partial record request by bringing up on appeal the remainder of the trial record below. In view of appellees' awareness of the Pughs' objections and the complete record on appeal, we find appellees are not prejudiced by the Pughs' failure to specifically state issue two in their request for a partial record. Id. 228-30; see also Gunnerman v. Basic Capital Management, Inc., 106 S.W.3d 821, 825 (Tex. App.--Dallas 2003, pet. denied). The court addressed the merits of issue two.

Prior to the burn pattern testimony, the trial court admitted Bardenhagen's report into evidence. There was nothing about burn patterns in the report. The report declared the "loss did not originate within the . . . window air conditioner . . . the fire started within the interior portion of the living room" and the cause was "an overheating of the supply cord system, for the air conditioner, at and/or near the wall outlet." The report also stated "[t]his opinion is limited in scope. There is not ample photo and written documentation . . . to be able to form a complete and formal opinion."

By Bardenhagen's own acknowledgment in his report and his repeated admission on cross-examination, the conclusion in the report was not provable. An expert's testimony that is unreliable may be legally no evidence, and had his opinion remained unsupported factually, an objection to its lack of reliability or a motion to strike may have been well-taken. The court did not find this objection or motion in the record. But even though an opinion is admitted without objection, if it is incompetent and without probative force it will not support a verdict; what is no evidence remains no evidence. See Robertson Tank Lines, Inc. v. Van Cleave, 468 S.W.2d 354, 360 (Tex. 1971). Here, however, Bardenhagen testified that new evidence produced by the Pughs, after his report was prepared, did support his opinion. The Pughs did not attack the sufficiency of the evidence to support the jury verdict.

On the night before trial, appellees and Bardenhagen received from the Pughs' attorney some color photographs of the fire scene that had been taken shortly after the fire occurred. Once Bardenhagen observed what he perceived to be burn patterns in the newly produced photographs, he concluded, with some proof, that the fire's origin was not in the air conditioner. (1) Appellees sought to offer this new evidence to support Bardenhagen's opinion on causation. The Pughs objected to the burn pattern-photograph evidence on failure-to-supplement grounds. After appellees' attorney indicated Bardenhagen's testimony regarding burn pattern evidence in the photographs would not constitute a change in his opinion, the trial judge stated, "If [Bardenhagen's] not changing anything[,] "I'll overrule the objection." Appellees' attorney then sought to lay the groundwork for admission of the testimony. Appellants continued to object, because Bardenhagen's report had not been supplemented prior to trial with the burn pattern theory. As the discussion continued, the trial court's focus shifted from concern with whether the testimony would be a change in opinion to the timing of the production of the photographs. The court again overruled appellants' objection, this time because appellees "just got these pictures since the report was submitted."

Rule 195.6 of the Texas Rules of Civil Procedure provides that parties must amend or supplement the written reports of testifying expert witnesses. See Tex. R. Civ. P. 195.6. The supplementation must be done with reasonable promptness; a supplemental response made less than thirty days before trial is presumed not to meet that requirement. See Tex. R. Civ. P. 193.5(b). Here, appellees did not supplement Bardenhagen's report prior to trial to include the burn pattern evidence.

When a party does not supplement discovery, the trial court must exclude the evidence unless the court finds good cause for failing to supplement, or finds there is no unfair surprise or unfair prejudice in admitting the evidence. See Tex. R. Civ. P. 193.5, 195.6; Ersek v. Davis & Davis, P.C., 69 S.W.3d 268, 271 (Tex. App.--Austin 2002, pet. denied); Rutledge v. Staner, 9 S.W.3d 469, 472 (Tex. App.--Tyler 1999, pet. denied). The burden of establishing good cause or the lack of unfair surprise or prejudice is on the party seeking to use the evidence, and any finding to that effect must be supported by the record. See Tex. R. Civ. P. 193.6(b), (c). Here, the trial judge implicitly found good cause for appellees' failure to supplement. He said the reason he was admitting the evidence despite the nondisclosure was because the photographs were not provided by the Pughs until right before trial. The Court of Appeals reviewed the trial court's determination of good cause under an abuse of discretion standard -- whether under the circumstances of the particular case the trial court's action was arbitrary or unreasonable. Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 241-43 (Tex. 1985); Norfolk Southern Ry. Co. v. Bailey, 92 S.W.3d 577 (Tex. App.--Austin 2002, no pet.).

Appellees filed a motion for sanctions based on their claim that appellants failed to timely disclose the photographs. The record does not reflect a ruling on the motion. The record is in conflict on whether Bardenhagen had earlier received black and white, fire scene photographs and then received the color photographs on the night before trial, or whether he had already been given some color copies during the discovery process and then received additional photographs from the Pughs' attorney on the eve of trial. And the reason for the Pughs' late production is unclear. The record is clear that on the night before trial appellants produced some fire scene, color photographs which Bardenhagen said supported his opinion. The trial judge heard Bardenhagen's testimony and the attorneys' explanations and based his ruling on a determination that "new" photographic information was supplied by plaintiffs to defendants on the eve of trial. The Court of Appeals deferred to the trial judge's resolution of any conflict in the facts. Given appellants' eve of trial production of "new" evidence, appellees' time frame for supplementing Bardenhagen's report was necessarily limited. Under these circumstances, the determination that appellants' late production of the photos constituted good cause to permit Bardenhagen's testimony was within the trial court's sound discretion. See Beard Family Partnership v. Commercial Indem. Ins. Co., 116 S.W.3d 839, 850 (Tex. App.--Austin 2003, no pet.). The Court of Appeals overruled issue two.

Bardenhagen also testified concerning burn patterns on the air conditioner's wires and sides that were consistent with his opinion that the fire did not originate in the air conditioner itself. When appellees offered the testimony into evidence, appellants objected only that Bardenhagen was not qualified to testify about fire effects from electrical fires. Any later objection that appellees had not supplemented Bardenhagen's report with an opinion on the unit's burn patterns was not timely and did not preserve this objection. See Tex. R. App. 33.1; Atlantic Richfield Co. v. Misty Prods., Inc., 820 S.W.2d 414, 421 (Tex. App.--Houston [14th Dist.] 1991, writ denied) (Party must make timely objection and obtain a ruling before the testimony is offered and received; complaint is waived if objection is made after admission of the evidence.). The burn pattern evidence on the air conditioner was properly in evidence.

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), (e-mail), Follow us on Twitter at @firesandrain.

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