United States District Court, E.D. Arkansas, Western Division
ANTHONY “TONY” JOSEPH DILLON, as Special Administrator of the Estate of JANNELL DILLON, Deceased PLAINTIFF
MAXUS PROPERTIES, INC., and LANDINGS ACQUISITION, LLC DEFENDANTS
OPINION AND ORDER
LEON HOLMES, UNITED STATES DISTRICT JUDGE
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
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
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.
to Exclude Expert Testimony
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
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.
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).
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.
Testimony of Ryan Baker
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.
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).
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.
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 ...