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Breaking Legal Developments


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


EXECUTIVE SUMMARY:      This weekly newsletter covers:

  1. Kansas District Court Opinion On Daubert Challenge


In McCoy v. Whirlpool, No. 02-2064-KHV, April 21, 2003, the District Court of Kansas reviewed the defendantís Daubert challenge. In various capacities, James B. and Lorray McCoy filed separate suits for property damage arising out of a fire at their home on February 16, 2000. Plaintiffs alleged that the fire originated in a Kenmore "New Generation" dishwasher which they purchased from Sears, Roebuck and Company ("Sears") on August 26, 1996. Plaintiffs claimed that Sears and Whirlpool Corporation ("Whirlpool"), which manufactured the dishwasher, were liable under various theories of product liability. Defendants denied that the fire originated in the dishwasher and argued that it was not defective or unreasonably dangerous. Plaintiffs have designated various experts to testify about the cause and origin of the fire. Defendants ask the Court to exclude reports and testimony by two of them, James L. Kuticka and James L. Martin.

Plaintiffs designated James L. Kuticka to provide testimony concerning the cause and origin of the McCoy fire. Kuticka prepared an expert report dated November 19, 2002, which eliminated external sources of combustion and concluded that "the heat source which created such damage [to the McCoy dishwasher] had to be internal to the dishwasher and originated in the area of the control panel at or near the location of the door switches and timer assembly." Fourth Report (Investigative Follow-Up) (November 19, 2002) at 6, Exhibit 1 in Defendants' Reply Memorandum In Support Of Their Motion To Exclude Testimony Of Plaintiffs' Expert, James L. Kuticka (Doc. # 132) filed April 7, 2003. Defendants ask the Court to exclude this opinion because under Daubert v. Merrel Dow Pharm., Inc. an expert cannot merely rely on an untested assumption that "there is no other explanation." Defendants also argue that Kuticka is unqualified to offer an opinion about where the fire originated because he "does not even know the specific components located within that area." Defendants' Memorandum In Support Of Motion To Exclude Testimony Of Plaintiffs' Expert, James L. Kuticka (Doc. # 114) filed March 10, 2003, at 9.

The Court must first determine whether Kuticka is qualified by "knowledge, skill, experience, training, or education" to render opinions regarding the cause and origin of the McCoy fire. See Fed.R.Evid. 702. Kuticka has been a fire investigator since 1975, conducting fire origin and cause investigations in Missouri, Arkansas, Kansas, Oklahoma, Nebraska and Iowa. He has completed more than 800 hours of fire investigation education, been certified as a fire investigator by the International Association of Arson Investigators and serves as a Fire Service Instructor. Kuticka has investigated approximately 4,000 fires. Kuticka professes to be a fire investigator, not an expert in dishwasher component parts. The fact that he may not know what specific components were located in the area where the fire started--e.g., resistors, terminations, relays, switches, etc.--does not make him unqualified to testify where the fire started or whether its source was inside or outside the dishwasher.

Defendants claimed that as a matter of law, Kuticka cannot testify to his untested assumption that aside from internal combustion, "there is no other explanation" for the fire. This proposition can be easily rejected. First, Weisgram stands for no such rule. Second, the parties have agreed that the National Fire Protection Association ("NFPA") has published NFPA 921, its "Guide for Fire and Explosion Investigations"--which represents the national standard with regard to appropriate methodology for investigation by fire science experts. Plaintiffs have demonstrated that Kuticka's testimony is generally consistent with the methodology established in NFPA 921 which recognizes a proper role for deductive reasoning in its methodology. Nothing in the Weisgram holding suggests that deductive reasoning is inherently unreliable and invalid under Daubert. Kuticka's testimony will be helpful to the jury, which can easily sort out any perceived inadequacies at the time of trial.

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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