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Dillon v. Maxus Properties, Inc.

United States District Court, E.D. Arkansas, Western Division

April 9, 2019

ANTHONY “TONY” JOSEPH DILLON, as Special Administrator of the Estate of JANNELL DILLON, Deceased PLAINTIFF



         This is an action arising from the death of JANNELL Dillon. On the morning of August 18, 2016, emergency personnel responded to 911 reports of a fire at Dillon's apartment in Little Rock. After entering the apartment to extinguish the fire, the responders found her dead on the floor of the hallway outside the two bedrooms. She had died from smoke and soot inhalation. Her estate sued the companies that owned and managed the apartment complex, alleging that the defendants breached duties owed to Dillon because the smoke detector within her apartment failed to sound an alarm during the fire. If it had sounded, the estate alleged, it would have timely alerted Dillon to the danger and she would have escaped.

         Several motions are pending. The defendants have moved for partial summary judgment on Dillon's product liability and breach of an implied warranty of habitability claims. Dillon's estate has not responded to those motions, but has instead moved to withdraw those two claims. Because the partial summary judgment motions are unopposed, they are granted. The product liability and breach of an implied warranty of habitability claims are dismissed with prejudice. The plaintiff's motion to withdraw these two claims is denied as moot.

         The plaintiff has moved to exclude two of the defendants' experts. The defendants have moved for summary judgment on the issue of causation, and have also moved for partial summary judgment on the plaintiff's punitive damages claim. For the reasons that will be explained, the plaintiff's motion to exclude the defendants' experts is granted in part and denied in part, the defendants' motion for summary judgment is denied, and the defendant's motion for partial summary judgment on the issue of punitive damages is denied.

         Motion to Exclude Expert Testimony

         The use of expert evidence in federal court is governed by Federal Rule of Evidence 702, as interpreted by the Supreme Court in Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993). Rule 702 states:

A witness who is qualified as an expert by knowledge, skill, experience, training, or education may testify in the form of an opinion or otherwise if: (a) the expert's scientific, technical, or other specialized knowledge will help the trier of fact to understand the evidence or to determine a fact in issue; (b) the testimony is based on sufficient facts or data; (c) the testimony is the product of reliable principles and methods; and (d) the expert has reliably applied the principles and methods to the facts of the case.

         The Court acts as a gatekeeper to ensure that a proffered expert is qualified by his knowledge, skill, experience, training, or education before that person may testify as an expert. Daubert, 509 U.S. at 589, 113 S.Ct. at 2795; Kumho Tire Co. v. Carmichael, 526 U.S. 137, 141, 119 S.Ct. 1167, 1171, 143 L.Ed.2d 238 (1999).

         “Rule 702 favors admissibility if the testimony will assist the trier of fact, and doubts regarding whether an expert's testimony will be useful should generally be resolved in favor of admissibility.” Clark v. Heidrick, 150 F.3d 912, 915 (8th Cir. 1998) (citation and quotation omitted). “Only if an expert's opinion is ‘so fundamentally unsupported that it can offer no assistance to the jury' must such testimony be excluded.” Hose v. Chicago Nw. Transp. Co., 70 F.3d 968, 974 (8th Cir. 1995) (quoting Loudermill v. Dow Chem. Co., 863 F.2d 566, 570 (8th Cir. 1988)). “‘[E]ven if the judge believes there are better grounds for some alternative conclusion, and that there are some flaws in the scientist's methods, if there are good grounds for the expert's conclusion it should be admitted.'” Bonner v. ISP Techs., Inc., 259 F.3d 924, 929 (8th Cir. 2001) (quoting Heller v. Shaw Indus., 167 F.3d 146, 152-53 (3d Cir. 1999)). “Vigorous 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.” Daubert, 509 U.S. at 596, 113 S.Ct. at 2798.

         Expert Testimony of Ryan Baker

         Here, the defense has designated Ryan Baker as an expert witness on the cause and origin of the fire that caused Dillon's death. Baker opines that (1) the fire originated in the apartment's west bedroom; (2) the material that first ignited was Dillon's bed linens; (3) the most probable ignition source was heat produced from an unattended or improperly discarded smoldering cigarette; (4) the cigarette ignited the bed linens or blankets and Dillon discarded the cigarette; and (5) an intentional act could not be eliminated. Document #32-1 at 7. The estate challenges Baker's testimony, arguing that “Baker failed to adhere to basic and central requirements of [the National Fire Protection Association standards] in investigating” the fire. Document #34 at 4.

         “An expert qualified as a fire investigator may testify as to his opinion on the fire's origin and possible causes based on evidence.” Booth v. Kelley, 882 F.3d 759, 762 (8th Cir. 2018). A fire origin and cause expert may “testify as to the point of origin and . . . explain that he inferred” what caused the fire through process of elimination. Hickerson v. Pride Mobility Prods. Corp., 470 F.3d 1252, 1257-58 (8th Cir. 2006). But an investigator may not testify as to who caused a fire. Booth, 882 F.3d at 762 (citing Brandt Distrib. Co. v. Fed. Ins. Co., 247 F.3d 822, 826 (8th Cir. 2001)). The Eighth Circuit has approved of NFPA 921 as a valid method for determining the cause of a fire, so long as it is followed reliably. See Manuel v. MDOW Ins. Co., 792 F.3d 838, 845 (8th Cir. 2015).

         Baker concluded that the fire was caused by a cigarette based on multiple scene inspections, a two-day laboratory examination of evidence from the scene, interviews with two witnesses, and an affidavit by Dillon's neighbor. See Document #32-1 at 3-6. Baker himself did not conduct each of the inspections and examinations, but under NFPA 921 a fire investigator may rely on the findings of others. NFPA 921 explains that a proper origin and cause investigation consists of “an examination of the scene and by a combination of other data collection methods, such as the review of previously conducted investigations of the incident, the interviewing of witnesses or other knowledgeable persons, and the results of scientific testing. Document #32-10 at 7-8. NFPA 921 thus expressly allows an investigator to rely on facts or data gathered by others. The estate complains that Baker did not analyze the bedding itself, but it has pointed to nothing in NFPA 921 that requires such specific testing. Many items of evidence from fire scene were tested. Document #32-1 at 14-17, 305-306.

         Most of Baker's testimony is admissible. See Hickerson, 470 F.3d at 1257. The purported flaws in Baker's testimony go to its weight, not admissibility. The estate has pointed out gaps in Baker's investigation and the basis for his conclusion. For example, Baker does not know what materials the blankets were made of. Document #32-2 at 68-70. The estate will be able to expose these weaknesses in Baker's report as well as ...

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