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Breaking Legal Developments


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


EXECUTIVE SUMMARY:      This weekly newsletter covers:

  1. SD Supreme Court Permits Expert Pyrolysis Testimony


In SUPREME PORK, INC., Plaintiff and Appellee, v. MASTER BLASTER, INC., (April 1, 2009) 2009 SD 20, the court permitted expert fire causation testimony based on pyrolysis.

In 1999, a small fire broke out in the pressure washer room of Supreme Pork's pig farrowing facility near Lake Benton, MN. The power washer sustained some damage but was completely repaired. In restoring the pressure washer room, Supreme Pork contracted with Master Blaster to add and install a second power washer. It was decided that the power washers' venting system needed to be redesigned and a new chimney installed. Master Blaster did not perform these services.

The parties disagree about the details of the subsequent conversation; however, it is undisputed that Master Blaster recommended Pipestone Plumbing and Heating (PP&H) for the venting and chimney work. Following this discussion, Master Blaster contacted PP&H. PP&H provided a price quote to Master Blaster. Master Blaster included the price of PP&H's quote, plus an additional fee, in Master Blaster's quote and bill to Supreme Pork.

On March 21, 2002, a second fire ignited above the ceiling of the pressure washer room, near the exhaust chimney. This fire did significant damage to Supreme Pork's facilities. Fire investigation experts were retained by a number of parties for post-fire causation analysis.

During the June 2007 trial, several of these experts testified about the cause of the fire and the surrounding circumstances. The trial court permitted testimony regarding: an expert's pretrial preparations made after his deposition; the existence of non-causal building code violations in the chimney installation; the power washer manufacturer's recommendation that a more insulated type of chimney be used; a different fire in 1999 which resulted from PP&H's installation; and, a theory of ignition called pyrolysis.

The trial court determined that PP&H served as Master Blaster's subcontractor/agent for this project, which, under Minnesota law, made Master Blaster liable for PP&H's negligence. Master Blaster appealed those rulings. The trial court determined that Minnesota law applied in this case because, among other reasons, the fire occurred in Minnesota.

The Court examined the issue of undisclosed expert testimony. The Court recognized that the purpose of pretrial discovery is to allow the parties to obtain the fullest possible knowledge of the issues and facts before trial. To fulfill this purpose, the parties are under a duty seasonably to supplement their responses with respect to any question directly addressed to . . . the subject matter on which the expert witness is expected to testify, and the substance of the expert's testimony. This is to promote the truth finding process and avoid trial by ambush. Seasonable disclosure allows opposing counsel the ability to effectively cross-examine an expert witness at trial.

A circuit court's admission of expert testimony falls within its broad discretion and is reviewed under the abuse of discretion standard. This Court has identified three areas of concern that it considers regarding allegations of undisclosed expert testimony: (1) the time element and whether there was bad faith by the party required to supplement; (2) whether the expert testimony or evidence pertained to a crucial issue; and (3) whether the expert testimony differed substantially from what was disclosed in the discovery process.

Dr. Schroeder's testimony regarding undisclosed underlying information.

Master Blaster also alleges that Dr. Robert Schroeder's testimony included previously undisclosed underlying information. Master Blaster suggests that statements about Dr. Schroeder's research and experiments concerning the pyrolysis; theory of ignition were improperly allowed. Further, Master Blaster alleges that Dr. Schroeder's telephone conversation with Dr. Vytenis Babrauskas on the Saturday before trial was inadmissible hearsay evidence.

Essentially, Master Blaster's arguments question the basis of Dr. Schroeder's opinion. The basis of an expert's opinion is generally a matter going to the weight of the testimony rather than the admissibility. Similarly, some of Master Blaster's concerns raised on this issue are more appropriately considered with the scientific validity of pyrolysis.

Experts are entitled to rely upon hearsay in forming their opinions when it is the type of information upon which experts in the particular field routinely rely. The court did not agree with Master Blaster that a telephone conversation with a leading expert in the field is not of a type reasonably relied upon by experts in the particular field in forming opinions or inferences upon the subject, Master Blaster's hearsay arguments are without merit. Master Blaster's argument suggests that an expert cannot review their work before their trial appearance by discussing their conclusions with colleagues in the field. The court could not accept such a suggestion.

SDCL 19-15-3 (Rule 703) provided:

The facts or data in the particular case upon which an expert bases an opinion or inference may be those perceived by or made known to him at or before the hearing. If of a type reasonably relied upon by experts in the particular field in forming opinions or inferences upon the subject, the facts or data need not be admissible in evidence.

Mr. Rallis' testimony regarding attic shield covers.

Master Blaster argues that Chris Rallis introduced a new theory of causation at trial. At Rallis' depositions, he posited that the shields used to prevent contact between the cellulose insulation and the exhaust vent were insufficiently secured and allowed the insulation to come into proximity with the exhaust vent, leading to the fire. The attic shields were, in this case, thin pieces of metal rolled into a cylinder around the exhaust vent. This created an area of dead space between the exhaust vent and the insulation in the ceiling. The shields were made and installed by PP&H. Cellulose insulation is treated, shredded newspaper.

Rallis' reports, testimony and depositions repeatedly stated his theory that the fire was caused by the insulation getting too close to the exhaust vents. He suggested that the proximity of the insulation and the vent changed at some point. The reason for this change was unknown; however, Rallis hypothesized a number of scenarios, including motion in the attic shield, the shield being tipped over, insulation migration due to air currents, the vent itself moving, etc.

Master Blaster argued that the specific factual scenario, that insulation came over the top of the attic shield because it did not have a top cover, was presented for the first time at trial. Supreme Pork responds that Rallis presented nothing new; the movement of insulation over the top of the shield is logically included in Rallis' general theory of preventing contact.

As with Rallis' previous testimony regarding the Class A vents, discussed above, Rallis' testimony about attic shield top covers came in response to cross-examination. Reading the transcript, the top cover discussion arises from a hypothetical posed to Rallis by Master Blaster's counsel. This hypothetical doubles the depth of the insulation surrounding the attic shields from Rallis' previous assumption. Furthermore, the first suggestion that the shield needs to be covered was made by Master Blaster's counsel.

Applying the areas of concern; the timing of this testimony favors Supreme Pork because it came in response to a direct question from Master Blaster. Further, there is no evidence of bad faith. While the issue of causation is a central issue in Supreme Pork's claims, the over the top of the shield theory did not substantially differ from Rallis' or Supreme Pork's central theory. Rallis' statements were observations and conclusions made about the hypothetical posed to him by Master Blaster. The manner in which this testimony came to be presented simply does not support a conclusion that this was previously undisclosed testimony necessitating reversal. The court did not find the admission of the discussion of attic shield top covers to be an abuse of discretion.

Whether the trial court erred when it admitted evidence of non-causal code violations on the same project and evidence regarding a 1999 fire at another facility.

For evidence to be admitted during trial, it first must be found to be relevant. Once the evidence is found to be relevant, it is admissible unless it is specifically excluded. The applicable statute involved in the instant case was SDCL 19-12-5 (FRE 404(b)), which provided:

Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show that he acted in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.

Furthermore, this statute is a rule of inclusion. Therefore, if evidence of other acts is relevant, it is admissible for any legitimate purpose other than to prove the character of the defendant. Even if the evidence is relevant and offered for an acceptable purpose, SDCL 19-12-3 (FRE 403) acts as a type of safeguard that allows evidence of other acts to be excluded if its probative value is substantially outweighed by other factors such as unfair prejudice. It is important to remember, however, that because virtually all relevant evidence presented at trial is harmful to the other party, this is not what is meant by unfair prejudice. To cause unfair prejudice, the evidence must persuade the jury in an unfair and illegitimate way. As this court previously stated in State v. Steichen:

Prejudicial evidence is that which has the capacity to persuade the jury by illegitimate means which results in one party having an unfair advantage. Evidence is not prejudicial merely because its legitimate probative force damages the defendant's case. Even though the admission of [other] acts evidence will usually result in such prejudice, it will not be admitted only if that prejudice is unfair.

1998 SD 126, P27, 588 NW2d 870, 876. Moreover, admission of the evidence is favored under SDCL 19-12-3, and the judicial power to exclude such evidence should be used sparingly.

The party objecting to the admission of evidence has the burden of establishing that the trial concerns expressed in Rule 403 substantially outweigh probative value. A trial court's determination to admit other acts evidence will not be overruled absent an abuse of discretion. Upon review a court must be careful not to substitute our reasoning for that of the trial court. On review the question is not whether the Supreme Court would have admitted the prior bad acts evidence if it had been the trial judges. Instead, the court must ask whether the trial court in the case below abused its discretion by admitting the prior bad acts evidence. Therefore, if the prior bad acts evidence was introduced for any proper purpose, its use is sustainable on appeal.

Code Violations

During trial, the court allowed testimony regarding other building code violations in the exhaust system. These violations were used to illustrate PP&H's lack of knowledge of building codes and safety requirements, resulting in the generally poor design and quality of workmanship. The trial court allowed Master Blaster to write limiting instructions for the jury explaining that these violations were not to be considered as a cause of the fire. The court read Master Blaster's instructions to the jury.

The Uniform Mechanical Code requires an eighteen-inch clearance from the junctions of the vent pipe to combustibles. The clearance for the junctions installed by Supreme Pork was only seven and one eighth inches. Both parties concede this is a violation of the Code, but not a cause of the fire. Other alleged violations of the Code were deemed cumulative and not admitted into evidence.

Master Blaster argues that this code violation was inadmissible bad acts testimony which Supreme Pork introduced to show PP&H's propensity; for negligent workmanship and its bad character. This argument is without merit.

Master Blaster mischaracterizes the code violations as character evidence. Supreme Pork was not attempting to prove PP&H's character; or reputation; with this evidence. Therefore, SDCL 19-12-4 (Rule 404(a)) is inapplicable. The trial court admitted the evidence under SDCL 19-12-5 (Rule 404(b)). The non-causal code violations were relevant, admissible, circumstantial evidence of PP&H's knowledge of safety standards at the time of installation, not its character.

SDCL 19-12-4. (Rule 404(a)) provided:

Evidence of a person's character or a trait of his character is not admissible for the purpose of proving that he acted in conformity therewith on a particular occasion, except:

(1) Evidence of a pertinent trait of his character offered by an accused, or by the prosecution to rebut the same;

(2) Evidence of a pertinent trait of character of the victim of the crime offered by an accused, or by the prosecution to rebut the same, or evidence of a character trait of peacefulness of the victim offered by the prosecution in a homicide case to rebut evidence that the victim was the first aggressor;

(3) Evidence of the character of a witness, as provided in 19-14-8 to 19-14-16, inclusive.

The trial court considered Master Blaster's motion to exclude the evidence at the pretrial hearing, and reserved its ruling until trial. At trial, the motion was denied. While the code violations did not contribute directly to the fire, they have a tendency to show that PP&H did not know of safety requirements on this particular installation. Therefore, this evidence was relevant under SDCL 19-12-1 and obviously satisfied the trial court's concerns regarding SDCL 19-12-3 (Rule 403) and SDCL 19-12-5 (Rule 404(b)) because they were mentioned and discussed in the pretrial motion hearing, in the pretrial order, and during discussions regarding the evidence prior to its introduction.

The Order for Motions in Limine provides, in relevant part:

# 6. The Court reserves its ruling on the Defendant's Motion in Limine to preclude any testimony or mention of non-causal violations of the Uniform Mechanical Code by Plaintiff, its counsel or its witnesses. . . The Court acknowledges that these violations appear to be classic FRE 403(b) evidence that should be excluded. However, the Court prefers to make an informed judgment after hearing the evidence and the context in which it is offered. In the event Plaintiff can establish the evidence meets an exception under FRE 404(b). Counsel for Plaintiff must approach and offer the evidence outside the hearing of the jury and receive a ruling on the matter prior to presenting such evidence to the jury.

# 9. The Court reserves its ruling on Defendant's motion to preclude presentation of evidence, or reference to, a 1999 fire at Pipestone Artificial Breeders, LLC. . . . Prior to any reference or attempt to present evidence on the matter, Plaintiff's counsel must request a hearing outside the presence of the jury. Plaintiff's counsel must then satisfy the relevancy requirement in FRE 401. . . . The evidence must also satisfy the requirements of FRE 403, in that its probative value must substantially outweigh the danger of unfair prejudice.

There is no indication that this ruling was an abuse of discretion.

1999 Pipestone Fire

In 1999, a fire started in the pig barn of a veterinary clinic in Pipestone, MN. Investigators determined that the cause of this fire was the improper installation of the vent system for the building's power washer. This vent system was installed by PP&H. Chris Rallis, Supreme Pork's expert witness in this case, was hired by PP&H's insurance carrier to investigate the 1999 fire. He concluded PP&H's actions had caused the fire. PP&H's president, Doug Dammann, testified that he was informed that PP&H was the cause of this 1999 fire. It was determined that the cause of the 1999 fire was that proper clearances were not maintained between the escaping heat and combustible materials. Paul Miersma, Master Blaster's president and owner, explained to the trial court that Dammann had informed him PP&H would be making certain [its] employees were putting in the vent systems right; before installing the vent system in Supreme Pork's facility. Miersma was aware of the fire at the Pipestone veterinary clinic. The fire at the veterinary clinic was in February of 1999. Master Blaster's bid, including the chimney work from PP&H was dated September 1999.

Master Blaster alleges it was unfairly required to litigate the cause of the 1999 fire during the trial. Moreover, Master Blaster argues that this fire occurred at a different time, place and under different causal circumstances. Therefore, it argues, this evidence was inadmissible under SDCL 19-12-1 (Rule 401), -2 (Rule 402), and -5 (Rule 404 (b)).

After considering Master Blaster's motion in limine, the trial court concluded that the cause and timeframe of the Supreme Pork installation was similar enough to warrant inclusion under SDCL 19-12-5 (Rule 404(b)). Like the testimony regarding code violations, this testimony was relevant for purposes other than character. Because of the almost identical nature of the incidents, this testimony was relevant to the foreseeability of harm, the risk of the danger with respect to the lack of safety measures, PP&H's lack of knowledge about installing exhaust chimneys in a manner that maintains the required clearances between combustibles and heat, and Master Blaster's lack of due care in selecting a subcontractor.

Master Blaster concedes Supreme Pork claimed it proffered the evidence to show PP&H's lack of knowledge concerning proper installation methods. Master Blaster has not established that the evidence was not relevant for this purpose or that such knowledge was not relevant to the issues in the case.

Evidence of the 1999 fire also establishes that Master Blaster knew, at the time it subcontracted PP&H, that PP&H's power washer venting work had been the cause of fires, yet Master Blaster retained PP&H to do the work. Master Blaster argues that all that was necessary for Supreme Pork to show in its negligence claim was that '[Master Blaster] and [PP&H] had a duty to use reasonable care under the circumstances to install the flue vents. . . .' Jury Instruction No. 25. This knowledge was, therefore, relevant to the reasonableness of Master Blaster's recommendation to hire PP&H and its eventual subcontracting with them for the installation of flue vents. Because it was relevant for these other purposes, the evidence was admissible under Rule 404(b).

While this may be a closer call than the code violations, discussed above, the Supreme Court could not conclude that the trial court abused its discretion.

Paul Miersma, Master Blaster's president and owner, stated that Master Blaster was required to hire an outside entity to perform the installation of the vent system. According to Miersma, the law requires that the installation must be performed by a licensed plumber. Master Blaster sub-contracted with PP&H to perform these skilled services. PP&H's lack of knowledge of basic code requirements (the safety standards regarding the required clearances between combustibles and heat sources) in performing this installation is an issue of consequential fact that was logically relevant to the case.

Master Blaster was the named defendant in this case; its negligence in hiring and recommending PP&H for the installation was another fact of consequence in the case. Though the negligent hiring issue was not directly put before the jury, Master Blaster's negligence in regard to the installation was considered by the jury. Master Blaster's knowledge of PP&H's involvement in the 1999 fire was a fact at least logically relevant to the theory that it was negligent in hiring PP&H for this installation. The Supreme Court did not find that the trial court's rulings on the relevance issues were an abuse of discretion.

Whether Dr. Schroeder's testimony regarding pyrolysis; failed to meet the Daubert v. Merrell Dow Pharmaceuticals, Inc. standard.

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.SDCL 19-15-2 (Rule 702).

Master Blaster suggests that the trial court abused its discretion by permitting Dr. Schroeder's testimony regarding a pyrolysis theory of causation. Master Blaster does not challenge Dr. Schroeder's qualifications as an expert or that scientific knowledge would assist the trier of fact in this case. Instead, Master Blaster argues that the theory of pyrolysis itself is scientifically unreliable and should have been excluded on the authority of Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S. Ct. 2786, 125 L. Ed. 2d 469 SCt 2786 (1993).

The pyrolysis theory posits that the ignition temperature of wood and wood products is lower after prolonged exposure to heat. The generally accepted temperature for ignition is 400 degree F. Research indicates ignition can occur when lower temperature heat is applied for a period of time. There is an ongoing debate in the fire science community regarding the exact temperatures and durations required for this effect to occur. The existence of this debate was discussed by several of the expert witnesses in depositions. The existence of the debate about pyrolysis pertains more to the basis for Dr. Schroeder's expert opinion, rather than the admissibility of the theory. See First Western Bank Wall v. Olsen, 2001 SD 16, 621 NW2d 611.

In considering Daubert challenges, the Supreme Court has stated:

Judges have considerable leeway; in deciding in each case how to go about determining whether particular expert testimony is reliable. Although the standard for reliability is not high, the goal is to ensure that expert testimony is based on sound methods and valid procedures.Wells v. Howe Heating & Plumbing, Inc., 2004 SD 37, P16, 677 NW2d 586, 592

In this case, Dr. Schroeder provided the trial court with published scientific articles discussing this theory, in addition to his own work experience and research. Master Blaster's expert witnesses agreed with Dr. Schroeder that the temperatures in the exhaust vent could have ignited the cellulose insulation if it came into contact with the vent. While these experts did not agree that this is what did occur, they did not suggest that Dr. Schroeder's theory, as a scientific matter, was without merit. Furthermore, the Consumer Product Safety Commission (CPSC) requires that manufacturers inform installers and consumers of cellulose insulation of ways to avoid the fire hazard that exists where cellulose insulation is installed . . . too close to the exhaust flues from heat-producing devices or apparatus such as furnaces, water heaters, and space heaters. 16 CFR 1404.1(a). In this case, Dr. Schroeder's theory of ignition is sufficiently reliable to withstand the Daubert challenge, whether it was called pyrolysis; or simply the fire hazard recognized by the CPSC and others.

The trial court's conclusion about the reliability of the pyrolysis theory is within its considerable leeway to admit relevant, reliable scientific testimony. The trial court's conclusion was not an abuse of discretion.

Master Blaster unavailingly relies on Truck Ins. Exchange v. MagneTek, Inc., 360 F3d 1206 (10thCir 2004). MagneTek concerns the low temperature 232 degrees F ignition of a three inch block of wood in a fluorescent light fixture. This case deals with the ignition of cellulose ignition after prolonged exposure to heat in the 300 degrees F or greater range. While the MagneTek decision rejects the pyrolysis theory, it has not been followed in any other jurisdiction and is not controlling in South Dakota.

The trial court judgment was affirmed.

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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