Opinion
Case No. A4-03-21, Docket No. 38.
July 28, 2004
ORDER DENYING DEFENDANT'S MOTION IN LIMINE AND DEFENDANT'S MOTION FOR SUMMARY JUDGMENT
This action arises out of a fire that destroyed the Plaintiffs' residence in rural Williams County, North Dakota. The plaintiffs, Gary and Phyllis Torske, contend the fire was caused by a defective coffee maker manufactured by the defendant, the Bunn-O-Matic Corporation. On April 19, 2004, Bunn-O-Matic filed a Motion in Limine and a Motion for Summary Judgment. For the reasons set forth below, the motion in limine is denied and the motion for summary judgment is denied.
I. BACKGROUND OF THE CASE
The plaintiffs, Gary and Phyllis Torske, are residents of Williams County, North Dakota. In August 1999, the Torskes purchased a coffee maker manufactured by the defendant, the Bunn-O-Matic Corporation (Bunn-O-Matic). Bunn-O-Matic is a Illinois corporation that does business in North Dakota.
Phyllis Torske arose on the morning of August 27, 1999, and attempted to make coffee as was her custom. The coffee maker did not work, which prompted Gary Torske to twice reset the GFCI switch on the outlet into which the coffee maker was plugged. The switch held, the coffee began brewing, and soon thereafter the Torskes were drinking their morning cup of coffee. Upon finishing their coffee, the Torskes went their separate ways to work. That afternoon a passerby, Larry Towbridge, contacted authorities to report a fire at the Torske residence. The Tioga Fire Department responded but was unable to save the Torskes' home, its contents, or adjacent property. State Farm Insurance, the Torskes' insurer, hired Harry Dodson to investigate. Dodson visited the Torskes' residence, photographed the scene, reviewed a statement given by Larry Towbridge to authorities, spoke with Gary Torske, an unnamed witness, a sheriff's deputy, and a State Farm Insurance representative. Dodson concluded the Torskes' Bunn-O-Matic coffee maker was the cause of the fire.
On February 21, 2003, the Torskes initiated this diversity action against Bunn-O-Matic, alleging that the coffee maker was the cause of the fire and seeking to recover under theories of product liability, negligence, and breach of express and/or implied warranties. In January 2004, and pursuant to Rule 26(a)(1) of the Federal Rules of Civil Procedure, the Torskes disclosed to Bunn-O-Matic the following witnesses with the caveat that these witnesses were asserted experts in their field but had not been specifically retained as experts: Mark E. Goodson, W.G. Stanfield, Dave Hallman, Michael S. McGuire, Curtis Ozment, Laurel V. Waters, Jim Fairfield, Tony Cockerill, Phil Sandoval, and Lisa Jones. In addition, pursuant to Rule 26(a)(2) of the Federal Rules of Civil Procedure, the Torskes disclosed to Bunn-O-Matic the following expert witnesses: H.C. Dodson, Jeffrey L. Sellon, and John L. Schumacher. On April 19, 2004, Bunn-O-Matic filed a Motion in Limine seeking to exclude the testimony of these witnesses on the grounds their opinions are irrelevant, excludable, or otherwise inadmissible under the Federal Rules of Evidence. In addition, Bunn-O-Matic filed a Motion for Summary Judgment.
II. LEGAL DISCUSSION A. BUNN-O-MATIC'S MOTION IN LIMINE
The admissibility of expert testimony is governed by Rule 702 of the Federal Rules of Evidence, which provides:
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.
Fed.R.Evid. 702. To be admitted under Rule 702, the expert must be qualified and the proposed testimony must be relevant and reliable. Rule 702 "is clearly one of admissibility rather than exclusion" and "reflects an attempt to liberalize the rules governing the admission of expert testimony." Lauzon v. Senco Products, 270 F.3d 681, 686 (8th Cir. 2001).
The analysis of an expert witness's proffered testimony is governed by Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579 (1993) and its progeny. In Daubert, the United States Supreme Court emphasized that a district court is to act as a "gatekeeper" when screening expert testimony for relevance and reliability. To assist district courts in this role, the Supreme Court enumerated a non-exclusive list of factors for consideration:
(1) whether the theory or technique can be (and has been) tested;
(2) whether the theory or technique has been subjected to peer review and publication;
(3) the known rate or potential rate of error; and
(4) whether the theory has been generally accepted.
Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579, 593-94 (1993). "Daubert's progeny has provided additional factors, such as: whether the expertise was developed for litigation or naturally flowed from the expert's research; whether the proposed expert ruled out other alternative explanations; and whether the proposed expert sufficiently connected the proposed testimony with the facts of the case." Lauzon v. Senco Products, 270 F.3d 681, 687.
1) EXPERT WITNESS HARRY DODSON
As noted earlier, Harry Dodson is the fire investigator initially retained by State Farm Insurance to examine the remains of the Torske residence. Bunn-O-Matic takes exception to the manner in which Dodson conducted his investigation, asserting that his methodology and opinions are unreliable. In addition, Bunn-O-Matic contends Dodson should not be allowed to offer an opinion as to the coffee maker's alleged defects because he is not an expert in that area. Not surprisingly, the Torskes disagree and tout Dodson's credentials along with his previous recognition as an expert in other, unrelated court proceedings.
Bunn-O-Matic emphasizes that Dodson is not an engineer and that his experience and training as a fire scene investigator does not encompass the design, manufacture, or construction of coffee makers. Thus, according to Bunn-O-Matic, Dodson can only speculate as to the alleged defective design and construction of the coffee maker at issue. For support, Bunn-O-Matic relies primarily upon a case entitled Weisgram v. Marley, Co., 169 F.3d 514 (8th Cir. 1999).
In response, the Torskes' cite Dodson's credentials. The Torskes also note that Dodson has, by his own estimation, investigated between fifty and sixty fires where a coffee maker was the suspected cause of the fire. Finally, the Torskes dismissWeisgram as factually distinguishable.
In Weisgram, the Eighth Circuit Court of Appeals held that an expert in fire investigation was free to testify on the origin of the fire, but was not qualified to offer an opinion as to whether a baseboard heater, the purported cause of the fire, had malfunctioned. The Court said the fire investigator had "run away" with his own unsubstantiated theories as to the cause of the fire "by relying on inferences that have absolutely no record support." 169 F.3d 514, 519 (8th Cir. 1999). In other words, there was no foundation nor any basis in the record to support the opinions on causation offered by the fire investigator.
In this case, there is no question that Dodson has extensive experience and training as a fire scene investigator. He is certainly qualified as an expert in fire investigations. Whether Dodson's expertise and training extends to the design, construction, and manufacturing of coffee makers is unclear at this stage. In Weisgram, the court said the expert's qualifications as a fire investigator "did not give him free rein to speculate before the jury as to the cause of the fire by relying on inferences that have absolutely no record support." 169 F.3d 514, 519. However, it is clear that a competent and qualified cause-and-origin expert in a fire case may opine on the cause of the fire, and may also rely upon reasonable inferences as to the cause of the fire, if there is a reasonable basis in the record to support such an opinion. Fire cases are unique, and theories of causation often depend on circumstantial evidence and reasonable inferences to be drawn from the evidence presented at trial. It is premature at this stage for the Court to wholly exclude Dodson's opinions as to cause and origin. If there is a reasonable, factual basis in the record to support Dodson's opinion on the cause and the origin of the fire, his opinion will be admissible at trial. If not, his opinion will be excluded under Weisgram. A competent and qualified cause-and-origin expert will not be allowed to "run away" and engage in speculation with unsubstantiated theories as to the cause of the fire. However, such an expert will be allowed to express opinions as to the cause and origin of the fire if there is adequate support in the trial record for such opinions. The Court will next address Bunn-O-Matic's assertion that Dodson's metholodogy was suspect and that his findings were neither reliable nor trustworthy.
According to Bunn-O-Matic, Dodson acted as State Farm Insurance's hand and conducted a cursory investigation rather than as a comprehensive, independent investigation into the Torske fire. Bunn-O-Matic faults Dodson for failing to personally interview Larry Towbridge and the firemen at the scene; for neglecting to photograph all of the appliances at the scene; for moving a number of items before photographing them in their original condition; for failing to review the circuit breakers with Gary Torske; for destroying the notes taken at the scene; and for neglecting to faithfully follow the rigors of the National Fire Protection Association (NFPA) 921 Guide for Fire and Explosion Investigations. Bunn-O-Matic also chides Dodson for failing to record the names of those witnesses he did speak with and for giving an inordinate amount of weight to statements made by the Torskes and State Farm Insurance representatives.
In response, the Torskes maintain that Bunn-O-Matic's criticisms of Dodson are invalid and that Dodson's investigation was thorough. In addition, the Torskes note that Dodson has co-authored a book on fire investigations and has contributed to the NFPA 921 Guide for Fire and Explosion Investigations. The Torskes also note the unique problem that a fire poses for investigators, that is, the scene is less than pristine and the evidence of causation tends to be destroyed.
Having carefully reviewed Dodson's deposition testimony, the Court cannot dismiss Dodson's methodology as unreliable. Dodson did speak with Gary Torske prior to visiting the scene and learned the Torskes had difficulty making coffee the morning of their fire. However, Dodson remains adamant that his findings were based upon his first hand observations. He stresses the fact that he spent two days at the scene sifting through the remains of the Torskes' home while recording his observations and taking photographs Whether Gary Torske's statements colored Dodson's thinking is open for debate. To accept either parties' assertion would require the Court to assess Dodson's credibility, a task better left for the jury.
The fact that Dodson did not photograph every appliance or interview all of the witnesses is a subjective criticism. At this point in time it is unclear why Dodson chose not to seek out and interview firemen or Larry Towbridge. However, it is equally unclear if such interviews would have been practical or would have provided Dodson with any additional insight into the investigation. With respect to the photographs or lack thereof, Bunn-O-Matic's criticisms beg the question of how many photographs should have been taken.
It seems reasonable and prudent to afford some deference to an investigator's judgment, especially when the investigator is able to view the scene in its entirety. As noted above, Dodson spent two days at the scene taking notes and examining the rubble. Although Dodson did not photograph every appliance, it is apparent from his deposition testimony that his movement was not confined to one specific area of the fire scene and his examination was not limited to a single appliance. Rather, it appears Dodson moved through the rubble, examined a number articles scattered throughout, and checked all appliances.
Further, the Court is not persuaded that the destruction of Dodson's field notes constitutes a basis for excluding Dodson's opinions or testimony at trial. Apparently, it is Dodson's practice to destroy his field notes after transferring them to his computer. According to Dodson, his original notes are destroyed as a precautionary measure because they may be physically contaminated by the scene and pose a threat to those who handle them. While Bunn-O-Matic may question the veracity of this explanation, it presumably has received a copy of the notes in their computer form. In any event, the Court does not view Dodson's actions as presumptively unreasonable since the substance of his field notes have been electronically preserved.
Dodson's alleged failure to adhere to NFPA guidelines is somewhat more problematic. Although the Torskes do not explicitly refute Bunn-O-Matic's assertion that Dodson did not follow all NFPA guidelines, they claim that Bunn-O-Matic's advocacy of rigid adherence to NPFA guidelines ultimately undermines its assertion regarding Dodson's conversations with Gary Torske. In addition, the Torskes have submitted a statement from Dodson wherein he (1) disputes the assertion that his investigation was lacking or otherwise conducted in a manner non-compliant with recognized protocol, (2) states that any discussion of protocol during his deposition tends to be superficial because he was never asked the "how and the why" of his actions, (3) alludes to his strict adherence to unspecified investigative procedures used by his company during fire investigations, (4) indicates that others may not adhere to the same procedures, and (5) suggests that the experts opinions on which Bunn-O-Matic's criticisms are based are unreliable experts.
Having carefully reviewed the parties' filings along with the transcript of Dodson's deposition, the Court concludes that the exclusion of Dodson's testimony at trial for failure to strictly follow NFPA guidelines is not warranted under the circumstances. It is not readily apparent that a failure to strictly adhere to all NFPA guidelines renders an investigation incomplete or unreliable. In addition, while these guidelines provide a legitimate criteria for evaluating an investigation, there is nothing before the Court to suggest they are exhaustive or exclusive.
Bunn-O-Matic will be afforded an opportunity at trial to inquire about the "how and the why" of Dodson's actions. Bunn-O-Matic will have an opportunity at trial to test Dodson's veracity and credibility and to question Dodson about his methodology, his adherence to NFPA guidelines or lack thereof, his decision not to interview the firefighters or Larry Towbridge, his affiliation with State Farm Insurance, and his prior testimonial experience. It is ultimately for the jury to assess Dodson's credibility and to assess what weight, if any, Dodson's opinions are entitled.
2) EXPERT WITNESSES JEFFREY L. SELLON AND JOHN L. SCHUMACHER
Jeffrey Sellon is an electrical engineer who is also a certified fire and explosion expert, certified fire investigation instructor, and a certified vehicle fire investigator. Sellon conducted a fire cause analysis at the Torskes' request. In his report to the Torskes dated September 26, 2002, Sellon stated his investigation had yielded the following: (1) the probable cause of the fire was a failure in the coffee maker or its cord, (2) the specific failure of the coffee maker was not determined due to the severe damage caused by the fire, and (3) a failure of the GFCI receptacle and the associated house wiring was eliminated as the cause of the fire. Sellon's opinions were reviewed and affirmed by John L. Schumacher, a chemical engineer who has eleven years of forensic engineering experience and specializes in causes of fire and explosions.
Bunn-O-Matic's criticisms of Sellon and Schumacher mirror those leveled against expert witness Dodson. Bunn-O-Matic contends that neither Sellon nor Schumacher have the requisite expertise in the design, construction, and manufacture of a coffee maker to offer an opinion regarding the coffee makers alleged defects. In addition, Bunn-O-Matic contends that Sellon's and Schumacher's opinions are untrustworthy as neither were able to identify a specific problem or defect with the coffee maker and both have relied upon unreliable information provided to them by Dodson. In response, the Torskes assert that Sellon and Schumacher are qualified, that their opinions have a solid foundation, and that their conclusions are borne out by circumstantial evidence.
For the reasons discussed above as to expert witness Dodson (see pp. 5-6), the Court believes it is premature to wholly exclude such opinions as to the cause and origin of the fire. Again, if there is a reasonable and adequate factual basis in the record to support such expert opinions, by inference or otherwise, the opinions will likely be admissible. If not, opinions as to the cause of the fire will likely be excluded under Weisgram.
3) PURPORTED EXPERTS WITNESSES NOT RETAINED AS EXPERTS FOR THE PURPOSES OF THIS CASE
As noted above, the Torskes identified the following persons as potential witnesses: Mark E. Goodson, W.G. Stanfield, Dave Hallman, Michael S. McGuire, Curtis Ozment, Laurel V. Waters, Jim Fairfield, Tony Cockerill, Phil Sandoval, and Lisa Jones. Apparently Hallman, McGuire, Ozment, and Waters have reported on and testified in other, unrelated court proceedings about problems with Bunn-O-Matic coffee makers. Fairfield, Cockerill, Sandoval, and Jones are employees of State Farm Insurance. However, Bunn-O-Matic has yet to receive any information concerning their qualifications or opinions in this case.Bunn-O-Matic contends that any opinion expressed by the above-named witnesses would be unreliable and irrelevant. Specifically, Bunn-O-Matic contends these individuals have not independently investigated or have independent knowledge of this case. In addition, Bunn-O-Matic contends the reports of these individuals, which are related to the litigation of other claims against Bunn-O-Matic, do not concern the model of Bunn-O-Matic coffee maker at issue in this lawsuit. Hence, any probative value of their testimony would be outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury. See Fed.R.Evid. 403.
Notably, the Torskes have not addressed these concerns in their response in opposition to Bunn-O-Matic's motion. The Torskes' failure to address these concerns could be construed as an admission that Bunn-O-Matic's motion as it pertains to Goodson, Stanfield, Hallman, McGuire, Ozment, Waters, Fairfield, Cockerill, Sandoval, and Jones is well-taken. In any event, the Court agrees that any testimony concerning problems with Bunn-O-Matic coffee makers other than the model owned by the Torskes is of questionable relevance and the probative value of such testimony may be substantially outweighed by the danger of unfair prejudice. With that, the Court simply notes that discovery is ongoing and that Bunn-O-Matic is still in the process of collecting information concerning the qualifications and opinions of these witnesses.
B. MOTION FOR SUMMARY JUDGMENT
The crux of Bunn-O-Matic's motion for summary judgment is that the Torskes cannot prevail without the inadmissible testimony of their expert witnesses. Thus, their motion presupposes that the Court will exclude all of the testimony of the expert witness retained by the Torskes. However, such is not the case. Given the disputed material facts in this case, a grant of summary judgment would be inappropriate.
III. CONCLUSION
Bunn-O-Matic's Motion in Limine (Docket No. 26) is DENIED. Bunn-O-Matic's Motion for Summary Judgment (Docket No. 26) is DENIED.