Admissibility Rate: .478 (11/23)
United States v. Diaz, 300 F.3d 66 (1st Cir. 2002). Man's restaurant burns and he is tried for arson. Government retains two fire experts: police fire investigator Joseph Dorsey and insurance investigator Thomas Haynes. Defendant files pretrial memorandum containing this sentence: "The only anticipated legal issue potential would be the qualification of the experts, so-called, under the standards of the Daubert trilogy." At trial, Dorsey opines, over defendant's renewed objection to his qualifications, that fire was deliberately set, and Haynes gives similar opinion. At close of government's case, defendant moves for judgment of acquittal, arguing in part that prosecution experts gave contradictory testimony. District court denies motion. In chambers after close of evidence, defendant again seeks judgment of acquittal, and also says, without elaboration: "In addition, I make a motion under Rule 702 that the opinions of the two experts be excluded under the Daubert analysis as I have previously mentioned." Motions are denied and jury convicts. In post-verdict motion, defendant argues for first time that actual testimony given by experts does not satisfy Rule 702's numbered criteria. This motion too is denied, and defendant appeals. Admissibility affirmed. Because defendant did not make timely objection to reliability of testimony, as opposed to experts' qualifications, Fed. R. Evid. 103 permits review only for plain error, and no error is evident here. Defendant objects that experts should have done more sampling and testing, but defense counsel could and did explore those issues on cross-examination.
Wilson v. Bradlees of New England, Inc., 250 F.3d 10 (1st Cir. 2001). Twelve year old girl, irritated by whistling tea kettle, reaches across stove to turn off burner. Her cotton and polyester blend sweatshirt catches fire, causing third degree burns to her chest and abdomen. In resulting products liability action, plaintiffs' chemist is permitted to testify to chemistry and inflammable properties of polyvinyl chloride and plastisols, but is not permitted to testify on commercial feasibility of printing sweatshirt logos with flame-retardant ink. Exclusion affirmed. Chemist testified that he had no familiarity with silk-screening industry, ink manufacture, or logo design, that he never conducted comparison tests between flame-retardant and ordinary inks, and that he knew of no silk-screener who used flame-retardant ink to print logos. His only knowledge re use of flame-retardant ink in industry was based on phone conversation with ink vendor, who told chemist it was used for children's sleepwear.
Ferrara & DiMercurio v. St. Paul Mercury Ins. Co., 240 F.3d 1 (1st Cir. 2001). Citing arson exclusion, insurer refuses payment for commercial fishing vessel destroyed in fire. In third trial of owners' suit against insurer (before third trial judge), jury finds arson in response to special interrogatory. On appeal, owners argue that insurer's fire expert failed to supplement his expert disclosures to incorporate opinions on cause and origin of fire, and was also incompetent because his conclusions were based on data collected not by him personally but rather by another defense expert who was now deceased. Admissibility affirmed. Plaintiff says two previous judges limited defense expert's testimony to issues concerning boat's electrical system, but expert was qualified to assess causes and origins too, and previous judges' rulings were simply calculated to minimize duplication in trials where defendants' now-deceased cause-and-origins expert was testifying. Moreover, given broad discretion of trial courts under Daubert, exclusionary rulings by previous judges would not necessarily bar finding of admissibility by third trial judge. As for argument that data on which expert relied were not personally collected by him, in fact he either collected those data or worked closely with now-deceased expert who did. Partial reliance on deceased expert's report was appropriate because such material could reasonably be relied upon by experts in field. When one expert relies on opinion of another, such reliance normally goes to weight, not admissibility. Expert should have supplemented disclosures to include cause-and-origin testimony, but plaintiff suffered no prejudice, because substantially identical testimony was presented by other expert at first trial, and because plaintiff was on notice three months before trial that current expert would testify on causes and origins but did not seek to redepose him.
State Farm Fire & Cas. Co. v. Holmes Prods., Inc., No. 04-4532 (3d Cir. Jan. 31, 2006) (unpublished). Insured's home burns to ground. Insurer blames halogen lamp and brings subrogation claim against lamp's manufacturer. To meet manufacturer's motion for summary judgment, insurer offers testimony from fire investigator Brian Gray. District court excludes testimony and grants summary judgment to manufacturer. Exclusion affirmed. Expert had no methodological or factual basis to support his speculative opinion that lamp came into contact with drapes when knocked over by insured's dog. Because there was no other basis to suppose that lamp ignited drapes, remainder of expert's testimony would not have assisted trier of fact.
Bryte v. Am. Household, Inc., 429 F.3d 469 (4th Cir. 2005). Partially disabled from stroke, woman is left alone at home for fifteen minutes, sitting in recliner under electric throw, next to table that holds lamp and burning candle. Fire erupts, killing woman. Family sues manufacturer of throw, alleging faulty circuit caused fire. To show causation at trial, family offers testimony from assistant state fire marshall Mack Dennis and Dr. W.T. Cronenwett, both of whom opine that electric throw caused fire. Trial court excludes testimony and awards judgment as matter of law to manufacturer at close of plaintiffs' case. Exclusions affirmed. Dennis did not physically examine lamp, electrical cord, wall outlet, or wiring and did not adequately exclude candle as originating cause of fire. Cronenwett's testimony, which focused on defective electrical circuits, was necessarily dependent on Dennis's.
Golden Nugget, Inc. v. Chesapeake Bay Fishing Co., No. 03-1339 (4th Cir. Apr. 2, 2004) (unpublished), cert. denied, 543 U.S. 1053 (2005). Vessel catches fire. Did shipyard negligently leave fan switched on, causing it to overheat, sparking conflagration? On eve of trial in vessel owner's suit against shipyard, shipyard's causation expert, Frederick West, examines remains of fan. At trial, West testifies, based in part on his examination, that fan had thermal cutout that would cause fan's deactivation if heat built up. West also opines that voltage spike was true cause of fire. Vessel owner objects to testimony on both subjects, because testimony was not disclosed in expert's pretrial report. District court overrules objections, as well as vessel owner's post-judgment motions for judgment as matter of law or new trial. Owner appeals. Affirmed. Testimony should have been excluded insofar as it was founded on undisclosed examination of fan, but error was harmless. From West's deposition, ship owner was already on notice of West's position that fan probably incorporated thermal cutout, and owner failed to avail itself of opportunities to cure any prejudice after testimony on thermal cutout was admitted. Expert's position on fire's true cause could have been more definitively stated in his report, but district court legitimately found that report did generally disclose it.
Wattle v. Barko Hydraulics L.L.C., No. 03-60979 (5th Aug. 5, 2004) (unpublished). Logging machine catches fire. Purchaser sues manufacturer for breach of warranty. District court overrules purchaser's Daubert objection to testimony from manufacturer's expert, Dan Olsen, who opines on causes and origins of fire. Jury finds for manufacturer and purchaser appeals. Admissibility affirmed. District court permissibly admitted testimony based on expert's professional background and methodology. Purchaser's contrary arguments conflate report's reliability with its correctness.
United States v. Norris, 217 F.3d 262 (5th Cir. 2000), cert. denied, 534 U.S. 870 (2001). Lawyer moves $500k from firm money market accounts to his personal account. Partners sue lawyer in state court. Lawyer then withdraws money from personal account and places it in safe deposit box. Partners obtain judgment in state case. Lawyer then removes money from safe deposit box. Partners attempt to execute on state judgment. Lawyer then says he "spent" money. Partners bring involuntary bankruptcy proceeding. Lawyer then testifies in bankruptcy case that in fact he poured gasoline on money and burned it in waste receptacle at his residence. Bankruptcy court disbelieves lawyer's story and orders money produced. Lawyer refuses. Bankruptcy court holds lawyer in civil contempt, ordering that he be incarcerated until he discloses location of money. Lawyer refuses and remains incarcerated until indicted for perjury. At perjury trial, prosecution offers testimony from ATF agent who attempted to recreate lawyer's alleged currency conflagration. Admissibility affirmed. Trial court erroneously asserted that Daubert was inapplicable, but in substance district court conducted reliability analysis and permissibly found that conditions of recreation, although not necessarily identical in every respect to bonfire that lawyer claims he set, were sufficiently similar to warrant admissibility.
Hartley v. St. Paul Fire & Marine Ins. Co., No. 03-6208 (6th Cir. Dec. 21, 2004) (unpublished). Did marina fire consuming seventeen vessels originate when houseboat owner negligently left his space heater on to keep his cat warm on cold wintry night? In his petition for exoneration from liability, houseboat owner says he doesn't remember whether he turned off his space heater that particular night, but contends that fire originated on another vessel. But insurers' expert on fire origins, Rick Franklin, opines that fire began on petitioner's houseboat. Relying on that testimony, trial judge finds for insurers, and houseboat owner takes interlocutory appeal. Admissibility affirmed. Expert was not required to eliminate all other possible causes. His failure to do so goes to weight, not admissibility.
Patterson v. Cent. Mills, Inc., No. 01-3551 (6th Cir. Apr. 30, 2003) (unpublished). Boy is badly burned when t-shirt catches fire. In suit against t-shirt's manufacturer and vendor, plaintiffs offer expert testimony on flammability warnings from Gordon Damant. District court excludes testimony and jury finds for defendants. Exclusion affirmed. Witness had never written flammability warning labels for clothing, had no specific education re such warnings, and in fact had no experience with flammability warnings except those placed on mattresses and furniture.
Pride v. Bic Corp., 218 F.3d 566 (6th Cir. 2000). Man mysteriously catches fire while inspecting pipe behind his house. In products liability action, widow's theory is that man's butane lighter first failed to extinguish, igniting man's clothing, then exploded, dousing man with isobutane and fueling conflagration that ultimately caused his death. Widow offers three experts: mechanical engineer who has testified in numerous products liability suits, on subjects ranging "from car seat belts to manure spreaders"; firefighter who has previously testified in Bic lighter cases on causes and origins of fires; and analytical chemist. Engineer opines, based on inspection of lighter, that exploding-lighter scenario is most likely cause of fire, and that mishap was caused by manufacturing defect, and also by failure of lighter's design to incorporate redundant safety features. Firefighter opines that lighter was most likely cause of fire based on elimination of other plausible causes as well as information suggesting that fire started in victim's breast pocket. Chemist opines, based on information re condition of plastic from lighter, that lighter exploded. After Daubert hearing, magistrate recommends exclusion of all three experts and award of summary judgment in favor of defendants. District court denies widow's requests to tender additional expert testimony and reopen Daubert hearings, and accepts magistrate's recommendations. Exclusion affirmed. Trial court is owed deference on evidentiary rulings, and de novo review of record supports trial court's conclusions. None of widow's experts conducted replicable laboratory tests showing that explosion of lighter was consistent with failure to extinguish caused by product defect. Engineer's testimony re manufacturing defect is contradicted by widow's other witnesses and by defense experts' lab tests. Firefighter admitted he was not engineer, had performed no tests, and was not expert in lighters. Chemist admitted lack of expertise in fire investigations and did not personally examine lighter. Chemist also designed lab experiment to test his hypothesis but said he "chickened out and shut the experiment down."
United States v. Gardner, 211 F.3d 1049 (7th Cir. 2000). At arson trial, government expert on causes and origins of fires testifies that faulty electrical wiring did not cause fire and that burn pattern was consistent with use of accelerant. Admissibility affirmed. Expert testified he relied on 120 photographs, reports from fire scene investigators, and personal interviews, and that such sources are commonly consulted in field of arson investigation to determine causes and origins of fires.
Miller v. Baker Implement Co., 439 F.3d 407 (8th Cir. 2006). Cotton picker is destroyed when it catches fire and its two attached fire extinguishers fail to operate properly. Owner's subrogated insurer brings products liability suit against cotton picker's manufacturer and fire extinguishers' manufacturer. Insurer initially submits reports from engineer William Ford, who opines that onboard fire suppression system or operable fire extinguishers would have mitigated damage, and from Jim Swaim, expert on fire origin investigation, who opines along similar lines. Insurer later moves for late designation of third expert, engineer Ernest Barany, who opines that fire would have caused minimal damage had cotton picker been equipped with automatic fire extinguishing system like those available in combine harvesters. Defendants move for summary judgment and for exclusion of Ford's and Swaim's testimony under Daubert. Defendants also oppose insurer's designation of Barany as untimely. District court excludes Ford's and Swaim's testimony, and also holds, sua sponte, that Barany's opinion would be inadmissible under Daubert. District court then awards summary judgment to defendants. Exclusions affirmed. Neither Ford nor Swaim stated that any onboard fire suppression system could have been employed on cotton picker, nor did either expert offer any substantial basis for their contention that operable fire extinguishers would have contained fire. Insurer complains that district court held no live Daubert hearing before excluding their testimony, but insurer submitted briefs and affidavits, and its right to be heard was not infringed. As for Barany, district court did not abuse its discretion in considering Daubert sua sponte in its ruling on insurer's motion for late designation. Between Barany's report and parties' Daubert briefing on other experts, district court had benefit of sufficient record to conduct its Daubert analysis of Barany's testimony. Moreover, Barany's report could have established only that it was feasible to install onboard fire suppression system on combine harvesters, not on cotton pickers.
Fireman's Fund Ins. Co. v. Canon U.S.A., Inc., 394 F.3d 1054 (8th Cir. 2005). Did defect in Canon copier cause fire? Subrogated insurers say it did, relying on testimony from fire causation experts Beth Anderson and Michael Wald. District court excludes testimony as unreliable and awards summary judgment to Canon. Exclusion affirmed. Experts purported to follow methods prescribed by National Fire Protection Association in its publication NFPA 921: Guide for Fire and Explosion Investigations (1998). That methodology qualifies as reliable approach endorsed by professional organization. However, it requires examination of hypotheses through testing and comparison with data from fire scene analysis. District court did not err in concluding that experts failed to satisfy that requirement. In particular, experimental tests employed by experts did not account for several relevant factors.
Rogers v. Allstate Ins. Co., No. 02-1516 (8th Cir. Oct. 10, 2002) (unpublished). In trial over insurance claim arising from destruction of house by fire, district court admits defendant insurer's expert testimony re canines trained to detect accelerants, and jury finds for defendants. Admissibility affirmed. Record does not indicate that Daubert was raised at trial, and other evidence supported conclusion that fire was spread by accelerants, so any error would be harmless.
Dillon Cos., Inc. v. Hussmann Corp., No. 03-1493 (10th Cir. Jan. 20, 2006) (unpublished). Grocery store hires commercial refrigeration contractor to perform work during store's remodeling. While using acetylene oxygen torches to braze refrigeration pipes, contractor accidentally ignites exposed paper-faced insulation. Building is destroyed in resulting conflagration. Grocery store sues contractor. Contractor asserts comparative negligence defense. At trial, contractor seeks to prove grocery store's negligence through testimony from engineer and fire investigator Roger Craddock, who opines: (1) that paper-backed insulation was highly inflammable and should have been covered; (2) that grocery store violated 1976 Uniform Building Code by installing paper-backed insulation; (3) that grocery store should have installed sprinkler heads or draft stops above drop ceiling; and (4) that building would not have been destroyed if grocery store had used foil-faced insulation or installed sprinklers or draft stops. Jury finds for grocery store but assesses 35% comparative fault against store. Admissibility affirmed. Grocery store challenges expert's qualifications on appeal but did not do so before or during trial, and so review is for plain error. Store complains that expert's educational background is in civil engineering, and that he is not an architect, structural or fire protection engineer, or certified fire investigator. But he was qualified by virtue of substantial experience and course work in fire investigation and allied fields.
Bitler v. A.O. Smith Corp., 391 F.3d 1114 (10th Cir. 2004), reprinted as amended, 400 F.3d 1227 (10th Cir. 2004), cert. denied, 126 S. Ct. 395 (2005). Injured in fire sparked by basement gas explosion, man blames propane water heater, alleging that its defective design permitted accumulation of copper sulfide on safety valve seat, preventing seal from closing and creating gas leak. On summary judgment, manufacturer offers testimony from fire investigation expert, Eden Boh, who opines that water heater was source of accident, and from plaintiffs' engineer and accident investigator, Donald Sommer, who opines that gas leak was caused by copper sulfide deposits. District judge overrules defendants' reliability objections and denies summary judgment. In subsequent pretrial proceedings, magistrate judge refuses reconsideration of district judge's ruling on admissibility of Sommer's testimony. Jury awards substantial damages at trial and manufacturer appeals. Admissibility affirmed. Magistrate judge was not required to revisit district judge's prior ruling on admissibility of Sommer's testimony; trial courts must perform their gatekeeping function, but once they have performed it, they are not required to "linger at the 'gate,' as if caught in Zeno's paradox." On merits of evidentiary rulings, Boh performed standard fire investigation procedure of observing conditions at scene and deducing cause of accident. Such methods are not susceptible of testing or peer review but are generally accepted in field of fire investigation. As to Sommer, defendants fault his lack of "testing," but gas explosion was one-time occurrence; Sommer was not relying on novel theories about causal relations among regularly recurring natural phenomena. His approach of considering various possible causes and ruling out implausible causes is methodologically similar to technique of differential diagnosis upheld in other contexts. No abuse of discretion.
103 Investors I, L.P. v. Square D Co., 372 F.3d 1213 (10th Cir. 2004). Building owners allege that defendant's defective busways sparked fire. District court excludes owners' initial expert reports, strikes their rebuttal report as untimely, and awards summary judgment to defendant. Exclusion reversed. District court abused discretion in excluding owners' rebuttal report. That report was technically untimely, but only because district court granted extension for defendant's reports without granting corresponding extension for rebuttal reports. Owners could not reasonably be expected to rebut reports not yet submitted.
Truck Ins. Exch. v. Magnetek, Inc., 360 F.3d 1206 (10th Cir. 2004). Subrogated insurer sues manufacturer of fluorescent light ballast, claiming defect in ballast caused fire. In support, insurer relies on testimony from fire expert Dr. Joe Romig, who opines that ballast could have started fire at temperatures well under wood's usual ignition point of 400 degrees Fahrenheit, through process known as "pyrolysis." Insurer also offers testimony from fire department investigator, Lt. Dan Pfannenstiel, who bases his opinion on his experience as fire investigator and his elimination of other possible origins of fire. District court excludes testimony from both witnesses and awards summary judgment. Exclusion affirmed. Lower court excluded pyrolysis testimony both because it found pyrolysis theory was unproven and unreliable, and also because it was not reliably applied. District court's first basis for exclusion was correct and so its second basis need not be reached. Pyrolysis theory enjoys only tenuous support in literature and remains fraught with scientific uncertainty, and cannot be applied to these facts without analytical gaps of impermissible breadth. Insurer protests that defendants did not contest generic reliability of pyrolysis theory before district court, but district court has independent gatekeeping obligations to evaluate scientific foundations of evidence, and may look beyond testimony of witnesses before it in doing so. Fire department investigator, meanwhile, testified that standard method of analysis is first to determine ignition temperature of fuel and then to determine what heat source could generate that temperature. Under that method of analysis, investigator could not legitimately conclude that wood could ignite at temperatures generated by ballast except through reliance on pyrolysis theory.
Call v. State Industries, No. 99-8046 (10th Cir. July 24, 2000) (unpublished). Home burns down. Homeowners' insurer brings subrogation action against manufacturer of hot water heater and offers two experts of some kind [on design defect? on causation?]. Admissibility affirmed. District court conducted extensive hearings to establish qualifications of experts and reliability of testimony. Establishing precise "rate of error" or showing that experts' theories have been subjected to peer review and publication are not prerequisites to finding of reliability in all instances. Moreover, any deficiencies in expert testimony were grist for cross-examination.