Russell v. Whirlpool Corp.

• Decision Date: 17 December 2012
• Docket Number: No. 12–1451.,12–1451.
• Citation: 702 F.3d 450
• Court: U.S. Court of Appeals — Eighth Circuit
• Parties: Randy RUSSELL & Antoinette Russell, Plaintiff–Appellee v. WHIRLPOOL CORPORATION, Defendant–Appellant.

702 F.3d 450

Randy RUSSELL & Antoinette Russell, Plaintiff–Appellee

v.WHIRLPOOL CORPORATION, Defendant–Appellant.

No. 12–1451.

United States Court of Appeals,

Eighth Circuit.

Submitted: Sept. 19, 2012.

Filed: Dec. 17, 2012.

Charles C. Eblen, argued, Kansas City, MO, Christopher J. Daniels, on the brief, Columbia, SC, for appellant.

Paul P. Hasty, Jr., argued, Overland Park, KS, for appellees.

Before BYE, GRUENDER, and SHEPHERD, Circuit Judges.

BYE, Circuit Judge.

A fire destroyed the home of Randy and Antoinette Russell. The Russells filed suit against Whirlpool, alleging the fire was caused by a defective refrigerator Whirlpool designed, manufactured, and sold. The jury found in favor of the Russells. Whirlpool appeals, contending the Russells' expert witness did not use a sufficiently reliable methodology, the Russells may not infer a product defect from circumstantial evidence under Missouri tort law, and the district court ¹ erroneously allowed the Russells to introduce evidence of other Whirlpool refrigerator fires. For the reasons discussed below, we affirm.

I

The fire started in the Russells' Iberia, Missouri, home on February 6, 2010. The Russells were in Cape Girardeau, Missouri, that day, and no witnesses to the fire were reported. Firefighters from the Brumley Volunteer Fire Department and the Iberia Fire Department responded to the scene. They tried to extinguish the fire but gave up after ninety minutes. Lieutenant Training Officer Tony Smoot, who supervised the fire response, did not call the State Fire Marshal to investigate the origin and cause of the fire because he believed the house was “too far gone.” In fact, the fire at the Russells' home was a “total burn” because most combustibles were consumed in the fire and the fire eventually self-extinguished. J.A. 463.

The Russells retained Larry Giggy, a certified fire investigator in Missouri, to determine the origin and cause of the fire. Giggy interviewed Mr. Russell regarding several possible causes of the fire, including an external wood burning stove, the house's hot water system, Mrs. Russell's smoking habits, candles and other open flames, space heaters, and flammable chemicals. Giggy then walked around the house twice, taking photographs the second time. He examined the remaining studs left on the concrete wall in the basement. Noticing the studs in the middle part of the wall were more significantly burned than those on the sides, he believed the middle of the house was a “suspect area.” He found and examined several appliances, including the backup electric furnace, washer and dryer, and air handling unit, but could not find any identifiable fire patterns. He noticed nothing unusual about the internal wiring in the house and eliminated the circuit breaker panel as a potential cause.

Giggy found the stove and microwave, and after examining them, noticed they were damaged more heavily on their left sides, as viewed from the front. He asked Mr. Russell what had been located to the left of the stove and microwave. Mr. Russell told him the refrigerator had been there. This suggested to Giggy the fire spread from the refrigerator to the adjacent appliances, burning their left sides first and thereby causing greater damage. He then located the refrigerator at the bottom of the debris, unlike the stove and microwave, which did not have debris on top of them. This difference led Giggy to believe the refrigerator fell through the floor prior to the time the stove and microwave fell through the floor. The only parts of the refrigerator Giggy could identify were some of the cooling coils, some parts of the frame, and the compressor, the pump that circulates refrigerant throughout the unit. The metal appeared thinner on the bottom part of the refrigerator frame, which would have been close to the compressor. He also noticed although the refrigerator was destroyed almost beyond recognition, the nearby appliances could still be recognized for their intended function and did not burn as significantly as the refrigerator. This indicated to him the refrigerator had burned longer and hotter than the other appliances. After considering all these factors, Giggy concluded the fire started in the refrigerator.

The Russells also retained Carl Martin, a registered professional engineer, to perform a cause investigation and engineering analysis. Martin relied on Giggy's determination of the refrigerator as the area of origin. Martin observed the surfaces on the inside of the compressor compartment experienced great heat exposure and the compressor windings were not energized when the fire attacked the compressor. This suggested the compressor was not working at the time of the fire. Martin also noticed the side wall surfaces of the compressor had suffered substantial damage, which would not occur had the fire originated in some other source. These observations led Martin to conclude the fire was caused by an electrical malfunction inside the compressor.

The Russells filed suit against Whirlpool alleging a defective refrigerator designed, manufactured, and sold by Whirlpool caused the fire. Their claim did not identify a specific defect, but instead inferred the existence of a defect from circumstantial evidence. At the close of discovery, Whirlpool moved to strike the opinions of Larry Giggy and Carl Martin, arguing they did not meet the standard for admissibility the Supreme Court stated in Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993). The district court denied the motions, as well as Whirlpool's related motion for summary judgment. Whirlpool renewed its motion to strike shortly before trial and requested the district court hold a hearing pursuant to Federal Rule of Evidence 104(a) to resolve the preliminary question regarding Giggy and Martin's qualifications to testify. The court denied the motion and agreed instead to evaluate the reliability of expert witness testimony as it came in. At that time, Whirlpool also filed a motion in limine to prevent the Russells from offering evidence of other similar incidents of fires alleged to have started in or around Whirlpool refrigerators. The court granted the motion and required the Russells to approach the bench and receive permission before offering such evidence.

At trial, Giggy testified regarding his investigation of the fire scene, his conclusion, and his methods. During cross-examination, Whirlpool's attorneys questioned Giggy about the extent to which he had employed National Fire Protection Association (NFPA) 921, Guide for Fire and Explosion Investigations. The NFPA is a nonprofit organization dedicated to fire prevention, and NFPA 921 is a document intended to “establish guidelines and recommendations for the safe and systematic investigation or analysis of fire and explosion incidents.” NFPA 921 § 1.2.1. Whirlpool presented a transcript from a deposition Giggy gave in a different case in 2008 in which he stated NFPA 921 is the standard to which fire investigators are held. In his trial testimony in this case, however, Giggy maintained NFPA 921 is merely a guide for origin-and-cause investigations, rather than a standard. Whirlpool again renewed its motion to strike Giggy's opinion at the conclusion of his testimony. The district court stated it believed Giggy's qualifications under Daubert were “pretty shaky,” but denied the motion.

Carl Martin also testified regarding his theory of the fire's origin. In response to a question regarding the significance of the lack of power in the compressor at the time of the fire, he stated, “It tells me that the fire originates within the compressor compartment and progresses outward from that location. And obviously it's not a big secret here. The theory is in the past there have been problems with the relay contactors.” J.A. 590. Whirlpool immediately objected and argued the Russells had introduced similar incidents evidence in violation of the court's in limine order. Whirlpool moved for a mistrial, or in the alternative, to strike the comment and give a curative instruction to the jury. The court denied the motion for a mistrial but granted the motion to strike and instructed the jury to disregard Martin's comment.

At the conclusion of trial, the jury returned a verdict in favor of the Russells in the amount of $1,377,550.00. Whirlpool filed a renewed motion for judgment as a matter of law, or in the alternative, for a new trial. It also moved once again to strike Giggy and Martin's testimony. The court denied the motions. Whirlpool appealed.

II

Whirlpool argues Giggy's testimony is inadmissible, and the district court therefore erred by admitting it, for two reasons. First, Giggy's failure to employ NFPA 921 automatically subjects his expert opinion to exclusion. Second, Giggy's failure to use any scientific methodology for his origin-and-cause investigation makes his opinions unreliable.

“Decisions concerning the admission of expert testimony lie within the broad discretion of the district court, and these decisions will not be disturbed on appeal absent an abuse of that discretion.” Peitzmeier v. Hennessy Indus., Inc., 97 F.3d 293, 296 (8th Cir.1996). An abuse of discretion occurs when a district court: (1) does not consider a relevant factor that should have been given significant weight; (2) considers and gives significant weight to an irrelevant or improper factor; or (3) considers all and only proper factors but commits a clear error of judgment in weighing those factors. Dunn v. Nexgrill Industries, Inc., 636 F.3d 1049, 1055 (8th Cir.2011). In the context of admitting evidence, an abuse of discretion occurs “only where the error is clear and prejudicial to the outcome of the proceeding.” Torbit v. Ryder Sys., Inc., 416 F.3d 898, 903 (8th Cir.2005).

A. NFPA 921

Whirlpool argues Giggy's investigative methods deviated from NFPA 921 and that deviation required the district court to...