EXECUTIVE SUMMARY: This
weekly newsletter covers:
FLA DIST CT Permits Expert to Offer Testimony based on Inspection
FLA DIST CT PERMITS EXPERT TO OFFER TESTIMONY BASED ON INSPECTION
In Charney v. Sears (Aug. 30, 2011), US Dist Ct (SD Fla) available at 2011 U.S. Dist. LEXIS 97005, a Florida District Court reviewed a challenge to plaintiff's fire expert in a refrigertor fire case.
This was a product liability action involving a fire, a refrigerator, and a doublewide mobile home. On or about May 26, 2008, Plaintiff Michael Charney ("Charney") awoke to a loud noise and the smell of smoke in his Port St. Lucie mobile home. He discovered there was a fire in his kitchen. He attempted to put it out with a garden hose, but to no avail. The fire destroyed his home and injured him physically. Charney believes the fire originated in his refrigerator, a Kenmore Top Mount Refrigerator Freezer, Model # 70822, which he purchased from Defendant Sears, Roebuck, and Company ("Sears") in March 2001. On October 14, 2010, Charney filed the present action against Sears for the personal injuries he suffered as a result of the fire. He alleges negligence (Count I); strict liability for a manufacturing defect (Count II); negligence for defective warnings (Count III); and strict liability for a design defect (Count IV). Sears moved to strike Charney's only expert and for summary judgment on all counts. In the course of this litigation, Plaintiff retained an expert, Peter Coste ("Coste") who opined that the cause of the fire was due to an electrical fault in the ice maker in the freezer compartment of the refrigerator. Sears vehemently objected to the methodology used by Coste and asked the Court to exclude his opinion because it was unreliable. Additionally, Sears argued that because there was no proof of a defect in the refrigerator, it is entitled to summary judgment on all counts.
There was no evidence in the record that supported Plaintiff's theories of defective warning or design defect. Coste did not offer an opinion on either of those claims. He only maintained the fire was the result of a manufacturing defect in the ice maker. Having no other information or evidence with respect to any alleged defective warning or design defect, the Court dismissed Counts III and IV.
Federal Rule of Evidence 702 sets out the following requirements for expert testimony:
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, if (1) the testimony is based upon sufficient facts or data, (2) the testimony is the product of reliable principles and methods, and (3) the witness has applied the principles and methods reliably to the facts of the case.
Fed. R. Evid. 702. The U.S. Supreme Court's decision in Daubert v. Merrell Dow Pharmaceuticals, 509 U.S. 579, 113 S. Ct. 2786, 125 L. Ed. 2d 469 (1993), and its progeny, govern the application of Rule 702. Under Rule 702 and Daubert, district courts must act as "gatekeepers," admitting expert testimony only if it is both reliable and relevant, to prevent speculative and unreliable testimony from reaching the jury. Rink v. Cheminova, Inc., 400 F.3d 1286, 1291 (11th Cir. 2005). Specifically, the district court must consider whether 1) the expert is qualified to testify competently regarding the matters he intends to address; 2) the methodology by which the expert reaches his conclusions is sufficiently reliable as determined by the sort of inquiry mandated in Daubert; and 3) the testimony assists the trier of fact, through the application of scientific, technical, or specialized expertise, to understand the evidence or to determine a fact in issue. City of Tuscaloosa v. Harcros Chems., Inc., 158 F.3d 548, 562-63 (11th Cir. 1998) (footnote omitted). In the Eleventh Circuit, these three considerations are known as "qualifications, reliability, and helpfulness," and must not be conflated by the district court. United States v. Frazier, 387 F.3d 1244, 1260 (11th Cir. 2004). The party offering the expert bears the burden of satisfying each of the three elements by a preponderance of the evidence. Rink, 400 F.3d at 1292 (citations omitted). The qualifications of Peter Coste and the helpfulness of his testimony were not at issue, only the reliability of his methodology.
In determining reliability, the Court may consider the following non-exclusive factors:
(1) whether the expert's theory can be and has been tested;
(2) whether the theory has been subjected to peer review and publication;
(3) the known or potential rate of error of the particular scientific technique; and
(4) whether the technique is generally accepted in the scientific community." See McCorvey v. Baxter Healthcare Corp., 298 F.3d 1253, 1256 (11th Cir. 2002) (citing Daubert, 509 U.S. at 593-94). However, these factors are not the "definitive checklist or test" for reliability, see Daubert, 509 U.S. at 593, and in some cases, evidence which does not meet all or even most of these factors may still be admissible, because other factors may predominate. U.S. v. Brown, 415 F.3d 1257, 1267-68 (11th Cir. 2005)
In cases of fire investigations, most experts employ methods set forth in the Guide for Fire and Explosion Investigations, specifically, National Fire Protection Association Standard 921 ("NFPA 921"). It recommends following a systematic approach in fire investigations and suggests using the basic methodology of the scientific method. The steps of the scientific method are: (1) recognize the need; (2) define the problem; (3) collect data; (4) analyze the data; (5) develop a hypothesis (inductive reasoning); and (6) test the hypothesis (deductive reasoning). NFPA 921 § 4.3-4.3.6. This standard served to guide the Court in determining the reliability of Coste's methodology.
When making this determination, the Court walks a fine line between acting as a gatekeeper in admitting expert testimony and acting as a finder of fact in weighing evidence presented by experts. The latter role would be an improper one for the Court. Though Defendant made excellent points about the shortcomings of the Coste's analysis, the Court could not exclude expert testimony merely because it is questionable. Indeed, the Daubert Court stated "[v]igorous cross-examination, presentation of contrary evidence, and careful instruction on the burden of proof are the traditional and appropriate means of attacking shaky but admissible evidence." 509 U.S. at 595.In viewing the facts in a light most favorable to Plaintiff, the Court could not say that Coste's testimony was inherently unreliable. He did conduct two visual inspections of the refrigerator, reviewed relevant materials such as the St. Lucie County Fire District Investigation Report, and analyzed photographs of the fire scene. Report Coste's Report showed he did collect data, analyze data, and develop a hypothesis. Coste also contended he "tested" the hypothesis through mental exercises. He appeared to have applied scientific principles and relied on his experience in fire investigations in concluding the ice maker was the point of origin of the fire. Though it would make for a much stronger case had he physically tested exemplars, or conducted any sort of physical testing, it is not for this Court to make determinations on the persuasiveness of this evidence. The Court also noted that it did retain discretion to exclude Coste's testimony once it has been presented to the jury.
ORDERED AND ADJUDGED that Defendant's Motion to Exclude Plaintiff's Expert and for Summary Judgment was GRANTED IN PART and DENIED IN PART. The Motion is GRANTED as to the dismissal of Counts III and IV of the Complaint. Counts III and IV are hereby DISMISSED WITH PREJUDICE. The Motion is DENIED as to the request for the exclusion of expert Coste and as to summary judgment.
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),
email@example.com (e-mail), http://www.cozen.com. Follow us on Twitter at @firesandrain.
Please direct comments, suggestions, stories, and other items to the author by
e-mail at firstname.lastname@example.org