Opinion
Civil Action No. 98C-10-210-FSS.
Submitted: May 12, 2000.
Decided: August 25, 2000.
Upon Defendants' Motion for Reargument, Renewal of Motion for Judgment as a Matter of Law, or In The Alternative for New Trial — Denied And Plaintiff's Motion for Costs, Expert Witness Fees, And Pre-Judgment and Post-Judgment Interest — Granted.
OPINION AND ORDER
This case concerns a house fire's point of origin and cause. Plaintiff is the homeowners' insurance company. Defendants are the companies behind the homeowners' electric-powered recliner. Plaintiff alleges that the chair malfunctioned somehow and started the fire. Defendants contend that Plaintiff failed to prove that their chair was to blame and that, most likely, one of the homeowners started the fire by careless smoking.
A jury concluded that the chair probably started the fire. Defendants filed dispositive motions during trial and timely post-trial motions, which Plaintiff opposes. Plaintiff filed a timely post-trial motion for costs, including expert witness fees, and pre-judgment and post-judgment interest, which Defendants oppose.
I.
Defendants contend, as they did at trial, that "[b]ecause neither of Plaintiff's experts were qualified to state whether the subject chair or the electrical system in this particular chair could have caused the fire," Defendants are entitled to judgment as a matter of law. Defendants also contend that, "neither Plaintiff's experts stated his opinions to a reasonable degree of "scientific, engineering' or even "cause and origin investigation certainty.'"
II.
In terms of the facts, everyone agrees that on October 31, 1996, a fire started inside the homeowners' living room and damaged their home severely. An Assistant State Fire Marshall examined the fire scene and concluded, based on several factors about which he testified at trial, that the fire's origin appeared to have been in the back of an electric-powered recliner. The fire investigator also concluded from circumstantial evidence that the transformer was plugged in and energized when the fire began. The fire investigator's specific conclusion as to the fire's cause was "some sort of electrical malfunction in the mechanism of the chair." The fire investigator had been a fireman for eleven years. He taught at the Delaware State Fire School for about four years. He has been an assistant fire marshall since 1984. He estimated that in that role, he had examined between 900 and 1300 fires.
As discussed below, a privately retained expert for Plaintiff also testified that he was "100%" certain that the chair was plugged in and the fire started at the chair's back. The privately retained expert was a former fire investigator with the Pennsylvania State Police for 17 years. In that capacity he received 400 hours of specialized training in fire investigation. He investigated over 1300 fires. Since 1989 the expert has been employed part-time by a private, fire investigation company. The expert testified that he has performed an additional 750 fire investigations for his private employer. Without conferring with the Delaware fire investigator before-the-fact, the private fire investigator also concluded "that the fire had started in the reclining chair as a result of an electrical malfunction with the electrical system in the chair." The expert ruled out smoking as the fire's cause based not only on the homeowner's say so, but also on circumstantial evidence such as the burn pattern on the chair.
The chair was a Berkline P126 Recliner Massage Chair. As its name implies, the chair was more than just a chair. It was a marvel of modern electric furniture design and engineering. The chair was powered by a transformer that plugged into a standard wall outlet. The transformer reduced the household current to twelve volts DC, which powered the chair's ten motors and heaters. According to competent experts retained by Defendants, including an electrical engineer, various safety features such as fuses, timers, thermostats, thermal devices, and the low-voltage made it virtually impossible for the chair to catch fire. Besides, Defendants contended that circumstantial evidence established that the chair was not even plugged in when the fire started. Defendants' experts concluded that while it was almost impossible for the chair's electrical system to have malfunctioned even if it were plugged in, other circumstantial evidence pointed to one of the homeowners having left a burning cigarette on or near the chair. A smoldering cigarette probably started the fire. The homeowner who smokes testified, however, that the chair belonged to her husband and she rarely sat in the chair, much less smoked in it. She denied starting the fire inadvertently. Her family backed her up.
III.
After the fire, the homeowners' insurance company reluctantly paid the homeowners' claim and it sued Defendants. At trial, as mentioned above, both sides presented substantial expert testimony. Plaintiffs focused on experts who determine where fires start. Defendant presented substantial expert testimony about the chair's specific components and the fire's origin. Except for the homeowners' testimony, the trial was a battle of the experts.
Plaintiff's experts were not electrical engineers. They were not qualified to review the chair's electric components in order to determine how it malfunctioned and caused the fire. Plaintiff's experts, however, were qualified to examine a fire scene and determine the fire's cause and point of origin. Plaintiff's experts opined, consistent with each other, that the fire did not appear to have been caused by careless smoking. Instead, it appeared to have been caused by some malfunction associated with the chair's electric components. The fact that Plaintiff's experts could not determine precisely how the fire started does not mean that their testimony about the fire's point of origin was incompetent and unpersuasive.
Similarly, while experts must testify to within a reasonable degree of probability in their fields of expertise, Defendants' alternative argument is little more than a "Gotcha!" under this case's facts. Plaintiffs retained expert testified that he was "100%" certain of his conclusions. While the Assistant State Fire Marshall did not testify expressly that his opinions were within a reasonable degree of probability, he testified that he formed his opinions about the fire's origin as part of his official investigation on behalf of the State of Delaware. The Assistant Fire Marshall did not characterize the fire as one of undetermined origin; his official report and his testimony attributed the fire to the chair and not to careless smoking. Taken as a whole, there is no reasonable room to question the Assistant State Fire Marshall's firmness about the tire's cause and point of origin. The Court is satisfied that the Assistant State Fire Marshall's official conclusion as to the fire's origin was held by him to the appropriate degree of probability.
See D.R.E. 702.
In this regard, the Court's findings are bolstered by the verdict. The Court charged the jury about the proper way to evaluate expert opinions. Consistent with the Court's pattern jury instructions, the Court specifically instructed the jury:
Pattern Jury Instructions for Civil Practice in the Superior Court of the State of Delaware § 22.14. (October 17, 1997 Revision).
[I]n order for you to find a fact based on an expert's testimony, that testimony must be based on reasonable probabilities, not just possibilities.
The Court concludes, based on the evidence presented and the jury instruction, that the jury found that Plaintiff's expert testimony was based on "reasonable probabilities, not just possibilities."
The Court recognizes that Defendants' experts were impressive and the jury could have returned a Defendants' verdict. But the Plaintiff's verdict also is understandable. Plaintiff, for example, had an independent governmental agency, the State Fire Marshal, on its side. Defendants' experts, on the other hand, were hired by Defendants. To some extent, Defendants' retained experts' opinions turned on the assumption that the chair was not even plugged in, which opinion was questionable. Originally, one of Defendants' own experts agreed that the chair probably caused the fire. That expert changed his opinion, but his first conclusion was consistent with Plaintiff's experts
The fire started somewhere. If the physical evidence and the homeowners' testimony did not support the conclusion that smoking caused the fire and everyone agrees that the fire started in or near the chair, the chair probably was plugged in and its electrical system probably malfunctioned somehow. That conclusion is supported by substantial evidence, even if other evidence points in an other direction. In short, the verdict is not against the great weight of the evidence, nor does the evidence preponderate so heavily against the jury verdict that a reasonable jury could not have reached the result.
Storey v. Camper, Del. Supr., 401 A.2d 458, 465 (1979).
IV.
Under 10 Del. C. § 5101:
Generally a party for whom final judgment in any civil action . . . is given . . . shall recover, against the adverse party, costs of suit to be awarded by the court.
Costs include fees for expert witnesses. The prevailing Plaintiff also is entitled to pre-judgment and post-judgment interest.
10 Del. C. § 8906. See also Superior Court Civil Rule 54(d). (Except when an express provision therefore is made either in a statute or in these Rules . . ., costs shall be allowed as a course to the prevailing party . . .)
Moskowitz v. Mayor Council of Wilmington, Del. Supr., 391 A.2d 209 (1978).
In this instance, the parties are sophisticated businesses represented by experienced trial attorneys. Under the circumstances, the fact that Defendants acted in good faith is no reason to blunt the consequences of their decision to take the matter to trial. The Court will follow the general rule and award costs, including expert witness fees, pre-judgment and post-judgment interest. If Defendants had prevailed, the Court would have awarded costs to them.
The parties shall confer and agree on a form of order. Preliminarily, Plaintiff's motion appears reasonable, except that Defendant's opposition to certain deposition-related costs and Defendant's proposed starting date for pre-judgment interest also seem valid. The Court, however, expects counsel to agree on the final judgment's amount and the form of order.
V.
Meanwhile, for the reasons presented above, Defendants' motions are DENIED. Plaintiff's motion is GRANTED. The Court will enter a judgment order upon submission.
IT IS SO ORDERED. ______ Judge.