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Breaking Legal Developments


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


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In Merrell v. Wal-Mart, (Dec. 16, 2008), Texas Court of Appeals 6th District, reversed summary judgment for Wal-Mart permitting a halogen lamp case to proceed to trial. Wal-Mart had been granted summary judgment because the trial court viewed the plaintiff's expert's evidence as insufficient and speculative.

Plaintiff's appealed the trial court's order granting Wal-Mart, Inc., summary judgment. This was a products liability suit based on an allegedly defective halogen torchiere lamp which may have caused the wrongful death of Charles Thomas Merrell, II (Charles II), Merrell and Cerverny's son. Charles II had just graduated from Austin College and had been hired as a stockbroker for A.G. Edwards' Paris, Texas, office. The house Charles II rented caught fire and burned, killing Charles II and his girlfriend, Latosha Gibson. The fire originated near the recliner in the living room. The fire report indicated the cause of the fire was unknown. The halogen torchiere lamp, which the Parents allege was the cause of the fire, was located next to the recliner. Wal-Mart denied the lamp was the cause of the fire. An alternative cause of the fire, which Wal-Mart alleged was more likely the cause, was that a dropped marihuana joint or cigarette caused the fire. Both victims had marihuana in their systems at the time of their deaths. The trial court granted Wal-Mart's no-evidence and traditional motions for summary judgment. The Court of Appeals reversed permitting the case to proceed to trial.

The Parents also brought suit against the Holmes Group, a manufacturer of halogen torchiere lamps, and Wilma Pearce, the landlord. The Parents alleged that Pearce failed to equip the residence with a smoke detector. In addition, Wal-Mart brought a cross-claim for indemnity and contribution against Pearce for failing to install a smoke detector. The Parents' claims against Wal-Mart were severed from the rest of the case after the trial court granted Wal-Mart's motion for summary judgment.

When Charles II graduated with honors from Austin College, he accepted a position as a stockbroker with A.G. Edwards in Paris, Texas. Charles II and Gibson rented a home in Honey Grove, Texas, near Paris, Texas. In October 2000, Charles II began a nine-week course to prepare for the stockbroker's examination and asked Merrell to "go and buy a floor lamp so he could study because the lighting was so bad in that house." The two went together to purchase the lamp at Wal-Mart. Although Merrell could not remember the specific Wal-Mart store at which the lamp was purchased, Merrell testified he was positive the lamp was purchased at a Wal-Mart store because he "never shopped anywhere but Wal-Mart." Charles II selected a lamp which may have been a halogen torchiere lamp. Merrell paid around $30.00 for the lamp. Because the lamp was a floor model, Merrell did not receive a box, any of the accompanying warnings, or instructions for safe operation. Even though the United States Consumer Product Safety Commission (the Commission) required all retailers to make available a free wire mesh guard for all halogen torchiere lamps, Wal-Mart did not provide a wire mesh guard with the lamp. Merrell testified there was a warning sticker on the cord, but could not remember what the sticker said. Charles II took the lamp home and placed it by his recliner in the living room.

During the early morning hours of December 2, 2000, a fire started in the living room while Charles II and Gibson were sleeping. The fire engulfed the entire house. Neither Charles II nor Gibson were able to escape, and both died of smoke inhalation. The toxicology report detected cannabinoids in the blood of both victims at the time of their deaths. It is uncontested that the fire originated in the general vicinity of the recliner. The recliner was completely consumed in the fire and was more extensively consumed by the fire than any other piece of furniture. The fire burned through the ceiling approximately two feet from the recliner.

The fire inspectors concluded the "exact cause of the fire could not be determined." Although photographs of the fire were preserved, the lamp was inadvertently disposed of and has not been recovered. In the fire report, the fire inspectors noted that the victims were known to leave candles unattended. The chief of police for Honey Grove, testified there were candleholders located on a small table between the lamp and the sofa. The lamp had been warped from the heat, but was upright and plugged in. He estimated the height of the lamp would be approximately six feet. He testified that a bong and ashtrays were found in the house. One of the ashtrays was on the small table with the candleholders. Larry Phillips, a lieutenant with the Honey Grove Police Department, testified they found "quite a bit" of drug paraphernalia. The police found a bong, several pipes, and several joints located in ashtrays. Phillips could not recall if any of the pipes were found in the living room. He testified the joints and blunts were found in ashtrays. Although several of the ashtrays were collected and preserved as evidence, the ashtray located in the living room was not preserved. He remembered a pole lamp with a bowl on top, but could not recall whether it was a halogen or incandescent lamp.

The officers collected the candleholders and other evidence, but a number of the items collected are now missing, including the candleholders. The videotape taken at the scene and some of the photographs are also missing.

Although there is no evidence Charles II smoked cigarettes, there is some evidence that Gibson smoked cigarettes.

The fire marshall, conducted his investigation approximately four days after the fire. Although he did not find any candleholders during his investigation of the fire, He testified he had been advised "the subjects that lived in the house did burn candles." He testified the table "was charred heaviest on the side that would have been up against the chair." He opined the candles were not a likely cause of the fire based on the charring of the table. When asked whether bulb fragments from an exploding halogen lamp could have caused a smoldering fire in the recliner, the fire marshall stated, "Could be a possibility. I haven't seen anything that would discount or prove either way." The fire marshall testified a dropped cigarette butt, joint, or ashes could have caused a smoldering fire, and he could not rule out smoking materials as a potential cause of the fire. In the fire marshall's opinion, the chair likely smoldered for a couple of hours before it ignited into flames. The fire marshall based this opinion on "the patterns, the Sheetrock, and the wood and the charring" as well as the burn-through in the ceiling above the reclining chair. The lamp had been disassembled by the time the fire marshall conducted his investigation. The pieces of the lamp were leaning against the wall. The fire marshall did not investigate whether the lamp was a halogen lamp or what the wattage of the bulb was. The fire marshall could not recall whether he examined the bowl of the lamp.

Wal-Mart retained two fire experts Shortly before summary judgment, the Parents retained a new expert. About the only thing the experts could agree on was that the fire investigation 3was not very thorough.

The Parents brought suit for negligence, gross negligence, breach of warranty, and strict products liability. The Parents' claims for negligence, gross negligence, and breach of warranty involve the same underlying conduct as the strict products liability claim. At trial and on appeal, Wal-Mart did not challenge any elements unique to negligence, gross negligence, or breach of warranty. Here, the only alleged negligence was the selling of a defective product. In that instance, the plaintiff must prove that the injury resulted from a defect in the product. In its order granting Wal-Mart's motion, the trial court stated "all claims and causes of action asserted by Plaintiffs against Wal-Mart shall be DISMISSED with prejudice." Because all of the Parents' causes of action are based on a product defect and the parties have only briefed strict products liability, this case focused exclusively on strict products liability.

The Texas Supreme Court has adopted the Second Restatement's standard for products liability. The Second Restatement provides:

(1) One who sells any product in a defective condition unreasonably dangerous to the user or consumer or to his property is subject to liability for physical harm thereby caused to the ultimate user or consumer, or to his property, if

(a) the seller is engaged in the business of selling such a product, and

(b) it is expected to and does reach the user or consumer without substantial change in the condition in which it is sold. The four elements for a products liability action are:

(a) the product must be defective; (b) the product must reach the consumer without substantial change from the time it leaves the possession and control of the manufacturer or seller; (c) the defective condition of the product must render the product unreasonably dangerous; and (d) the unreasonably dangerous condition of the product must be the cause of the injury to the user.

Strict products liability requires proof of producing cause. Producing cause is a cause that is a substantial factor in bringing about an injury and without which the injury would not have occurred. In other words, the essential components of producing cause are "(1) the cause must be a substantial cause of the event in issue and (2) it must be a but-for cause, namely one without which the event would not have occurred."

Wal-Mart argued the trial court erred in admitting an affidavit. In this affidavit, Charles II's neighbor, stated he noticed the living room lamp was still on when he left his house "late Friday night to go play cards," i.e., the night of the fire. The affidavit, though, is not sworn. Because the affidavit is not sworn, Wal-Mart argued the affidavit was incompetent evidence. By Texas statute, an affidavit must be "signed by the party making it, sworn to before an officer authorized to administer oaths, and officially certified to by the officer under his seal of office." An unsworn affidavit is incompetent summary judgment evidence. The trial court erred in admitting the affidavit for all purposes. However, as discussed below, the affidavit was admissible for a limited purpose as information reasonably relied upon by Plaintiff's expert.

Wal-Mart advanced two reasons for excluding the plaintiff's expert's affidavit. First, Wal-Mart argued the affidavit should have been excluded because it relies on inadmissible evidence, i.e., neighbor's affidavit. Second, Wal-Mart argued the expert's testimony should not have been admitted because it was scientifically unreliable. Wal-Mart did not challenge the qualifications as an expert witness.

Wal-Mart argued the plaintiff's expert's affidavit was inadmissible because it relied upon the unsworn affidavit of the neighbor. The Parents argued the expert could reasonably rely on the statement under Texas Rule of Evidence 703.

The Texas Rules of Evidence were adopted over twenty years ago to permit experts to consider inadmissible evidence. Traditionally, an expert could not rely upon statements of third parties that were not properly admitted into evidence.

Rule 703 expressly permits an expert to base his or her opinion upon facts or data perceived by, reviewed by, or made known to the expert 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. This change was designed to broaden the basis for expert opinions and to bring courtroom practice in line with the practice of experts themselves when they are not in court.

Wal-Mart disagreed. However the neighbor was not an unknown bystander, nor does the statement repeat a rumor. The veracity of the statement can be verified, and Wal-Mart could present contrary evidence if the statement is incorrect. An expert is not required to have personal knowledge of the facts upon which he or she bases his or her opinion and can reasonably rely upon the factual statements of eyewitnesses. Wal-Mart's experts also rely on witness statements which were not introduced into the record in admissible form (or even introduced at all). Because the trial court could reasonably conclude the neighbor's statement was of the nature reasonably relied upon by experts, the trial court did not abuse its discretion in admitting plaintiff's expert affidavit.

Wal-Mart also claimed the plaintiff's expert affidavit was speculative, conclusory, and scientifically unreliable.

The trial court must make a threshold determination of the admissibility of expert testimony under Rule 702. TEX. R. EVID. 702; . To be reliable, the scientific techniques or principles underlying the expert's testimony must be well grounded in the methods and procedures of science. In determining the reliability of an expert's testimony, a trial court may consider the following nonexhaustive list of factors: (1) the extent to which the theory has been or can be tested; (2) the extent to which the techniques rely on the subjective interpretation of the expert; (3) whether the theories have been subjected to peer review and/or publication; (4) the techniques' potential rate of error; (5) whether the underlying theories or techniques have been generally accepted as valid by the relevant scientific community; and (6) the nonjudicial uses which have been made of the theories or techniques. Id. The Texas Supreme Court has noted the factors listed in Robinson do not apply with equal force to all types of scientific or technical evidence.

Wal-Mart objected to the affidavit in its "Objections to Summary Judgment Evidence in Support of Plaintiffs' [*19] Response." Wal-Mart complained that the affidavit contained hearsay, was speculative, and was conclusory. Wal-Mart, though, did not complain about the scientific reliability of the affidavit

The Texas Supreme Court has held that a speculative or conclusory statement of an expert witness is insufficient to create a question of fact to defeat summary judgmentA naked and unsupported opinion of a witness is incompetent evidence. . "An expert opinion is conclusory when it offers an opinion with no factual substantiation. . . . [*21] The expert must explain how he reached his conclusion." In his report, the expert states, "On the basis of the eyewitness observation, physical evidence and analysis of the fire, the fire was caused by the halogen torchiere lamp." Wal-Mart argued this conclusion demonstrated that the opinion is merely unsupported speculation. Although the statement, when considered in isolation, might appear insufficient, review of the entire affidavit and supporting attachments demonstrates that opinion has considerably more factual substantiation.

The affidavit specifically incorporates his report, which was attached to the affidavit. The affidavit states, "[t]he basis of my opinions expressed herein and in my report are more fully developed and are contained in my report dated February 8, 2007, attached hereto." When we consider the affidavit in connection with the attached report, there is sufficient factual substantiation of the opinions.

The expert used numerous published articles to establish general causation, i.e., the fact that halogen lamps can cause fires. He listed an extensive list of articles and government reports on which he relied. He relied upon research conducted by Underwriters Laboratories (UL) concerning halogen lamp temperatures. He also relied upon sixteen articles, many of which have been published in scientific journals. The scientific literature established four main mechanisms by which halogen lamps can cause fires as documented by scientific literature: 1) ignition of combustibles in close proximity, 2) ignition of combustibles by exploding lamp fragments, 3) electrical short circuits, and 4) tip-over of the lamp resulting in ignition of combustibles. He asserted that halogen lamps operate at very high temperatures and generate sufficient heat to allow ordinary combustibles to be ignited without direct bulb contact. Using scientific studies, he illustrated that combustibles within two or three inches from the bulb pose a serious risk of igniting. Logically, if the bulb itself, or fragments, come into direct contact with a combustible, the risk of igniting would be even greater.

He established specific causation, i.e., that Charles II's halogen lamp was the cause of the fire, by elimination of other possible causes of the fire and evaluating the statements of the fact witnesses along with the evidence collected at the scene. He concluded the "most likely mechanism" was "'nonpassive failure' of the lamp igniting the recliner below." Nonpassive failure involves an exploding bulb causing hot glass, capable of igniting ordinary combustibles like furniture, to ignite. His report contains an extensive recitation of the facts, including that the lamp lacked a wire mesh guard, was located adjacent to the recliner, and the ceiling had been penetrated by the fire in the area of the recliner. The report also noted that the neighbor stated the lamp was still on when he left his house around midnight the night of the fire. He noted the sofa and small table were both damaged more extensively on the side closest to the lamp, and the halogen lamp was extensively damaged.

Wal-Mart argued the expert failed to exclude other potential causes. But he did examine and exclude the alternative causes. He considered these possibilities, but rejected the candle theory because of the disparity between the damage to the recliner and the sofa. The pictures of the scene showed the recliner was completely consumed, but the sofa was only partially consumed. He concluded the disparity demonstrated the fire did not originate at the table because the sofa was closer to the table. He also states the candle wax would not have survived the fire if the candles were the point of origin. The conclusion that smoking materials caused the fire was incorrect according to the expert. He states that there is no evidence smoking materials caused the fire and that "[t]he condition of the recliner after the fire is in no way indicative of ignition of the recliner by a cigarette." Further, he found no evidence of electrical activities or other indicators of an electrical cause of the fire.

The expert's testimony is "post hoc" only in that he proposes several hypotheses, and then examines each in turn. This is not inadmissible reasoning; this is the scientific method.

It is clear that Wal-Mart's experts disagree with the conclusions reached by the plaintiff's expert. Conclusory evidence lacks probative value due to insufficient factual substantiation--not from "differing conclusions as to the underlying factual situation." The fact that an expert witness may have made errors does not create an impermissible "analytical gap." While the expert's analysis is not irrefutable, he did provide factual substantiation for his opinions. His opinions were based on his knowledge, training, and experience as an expert in fire science and fire investigation, his review of the pictures of the scene, the statements of the fact witnesses, and numerous published articles. The evidence is not speculative or conclusory and does not contain an impermissible "analytical gap" between the data and the conclusions. His testimony is not incompetent evidence.

After reviewing other issues raised the Court of Appeals ruled the trial court did not err in admitting all the summary judgment evidence. Although the neighbor's affidavit was not admissible for all purposes, plaintiff's expert could rely upon the statement in his affidavit. Plaintiff's expert's affidavit was not speculative or conclusory. Because the Parents introduced more than a scintilla of evidence on each challenged element of their cause of action, the trial court erred in granting Wal-Mart's no-evidence motion for summary judgment. The court reversed the order of the trial court granting Wal-Mart's summary judgment motion and remand this case to the trial court for further proceedings consistent with this opinion.

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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