Baker Valley Lumber, Inc. v. Ingersoll-Rand Co.

• Citation: 813 A.2d 409,148 N.H. 609
• Decision Date: 12 December 2002
• Docket Number: No. 2001–272.,2001–272.
• Court: Supreme Court of New Hampshire
• Parties: BAKER VALLEY LUMBER, INC. v. INGERSOLL–RAND COMPANY and another.

148 N.H. 609

813 A.2d 409

BAKER VALLEY LUMBER, INC.

v.INGERSOLL–RAND COMPANY and another.

No. 2001–272.

Supreme Court of New Hampshire.

Argued Sept. 11, 2002.

Opinion Issued Dec. 12, 2002.

Upton & Hatfield, L.L.P., of Concord (Russell F. Hilliard and David P. Slawsky on the brief, and Mr. Hilliard orally), for the plaintiff.

Nelson Kinder Mosseau & Saturley, P.C., of Manchester (Richard C. Nelson & a. on the brief, and Mr. Nelson orally), for defendant Ingersoll–Rand Company, Inc. Bouchard & Kleinman, P.A., of Hampton (Kenneth G. Bouchard on the brief and orally), for defendant Air Services of NH, Inc.

DUGGAN, J.

The plaintiff, Baker Valley Lumber, Inc. (Baker Valley), appeals a ruling by the Superior Court (Sullivan , J.) barring the testimony of its expert witnesses under New Hampshire Rule of Evidence 702 and dismissing its negligence and products liability claims against defendants Ingersoll–Rand Company (Ingersoll–Rand) and Air Services of NH, Inc. (Air Services). We reverse the dismissals and remand to the trial court.

On March 25, 1995, a fire destroyed the Baker Valley sawmill in Rumney. Employee witnesses and the fire marshal's investigation identified the room housing the mill's air compressor as the source of the fire. On January 9, 1998, Baker Valley commenced litigation against Ingersoll–Rand, the manufacturer of the compressor, and Air Services, which serviced and maintained the compressor.

To prove its claims at trial, Baker Valley planned to introduce testimony from two experts: Richard W. Jones, a fire investigator, and Dr. Igor Paul, an adjunct professor of mechanical engineering at the Massachusetts Institute of Technology (MIT). Both experts concluded that a defect in the compressor's hose or fitting allowed highly-pressured oil to escape from the compressor. They believed that a spark then ignited this oil, causing the fire. Jones reached this conclusion by studying the charred air compressor, the fire marshal's report and the relevant depositions, and by conducting an experiment. By eliminating other possible causes, he concluded that the defect in the air compressor caused the fire. Dr. Paul's methodology involved studying the timing of the fire, the behavior of hydraulic vapor in the compressor, the color of the fire's smoke, and the appearance of the fire. Dr. Paul arrived at his conclusion largely by eliminating other possible causes.

The defendants challenged the admission of this testimony under New Hampshire Rule of Evidence 702. At the defendants' request, the trial court conducted a three-day hearing to determine whether the plaintiff's expert testimony was sufficiently reliable to be admissible. During this hearing, the defendants called their own expert, Dr. John Wilson, who testified, inter alia, that the temperature in the compressor room was too cold for the oil to become pressurized as the plaintiff's experts theorized. In response, the plaintiff called Jones to testify. Jones reiterated his theory and submitted to an extensive voir dire from the defendants' lawyers. The plaintiff also introduced the deposition of Dr. Paul.

On the second day of the hearing, the trial court ruled that Jones was not qualified to testify as an expert about his theory of the fire's causation. Several months later, the trial court issued an extensive opinion barring Dr. Paul's testimony as well. Although the court ruled Dr. Paul was qualified as an expert, the court concluded that the plaintiff had " failed to establish that Dr. Paul's theory is scientifically reliable" under either the standards established in Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993), or the "general acceptance" test established in Frye v. United States, 293 F. 1013, 1014 (D.C.Cir.1923). Consequently, the trial court granted the defendants' motion to dismiss, and this appeal followed.

After we accepted this appeal, we authorized the trial court to decide two pending motions relating to Air Services. The trial court held that: (1) Dr. Paul could not, in any event, testify against Air Services because the plaintiff had not properly disclosed him to Air Services under Superior Court Rule 35(f); and (2) Jones was not qualified to testify about the service practices of Air Services.

On appeal, the plaintiff argues that the trial court erred in finding Jones unqualified as an expert, in ruling that the theory presented by the plaintiff's experts was unreliable, and in determining that it had not properly disclosed the witness under Rule 35(f). The plaintiff has not briefed the trial court's determination that Jones was not qualified to testify about the service practices of Air Services, and thus we decline to review this ruling. We address the remaining issues in turn.

We first consider whether the trial court erred in ruling that Jones is unqualified to testify as an expert concerning the plaintiff's pressurized oil theory. New Hampshire Rule of Evidence 702 states that an expert may be qualified on the basis of "knowledge, skill, experience, training, or education." N.H. R. Ev. 702. We will reverse a trial court's determination of expert qualification if we find it to be an unsustainable exercise of discretion. See State v. Santamaria, 145 N.H. 138, 143, 756 A.2d 589 (2000) ; see also State v. Lambert, 147 N.H. 295, 296, 787 A.2d 175 (2001) (explaining unsustainable exercise of discretion standard).

The record establishes that Jones had over fifty years of experience investigating fires, and fifty years of experience working with compressors. Jones, in fact, testified that he had personally investigated "more than a dozen" cases involving air compressors, although he had never before concluded that an air compressor was the cause of a fire. Despite Jones' extensive background, the trial court found him unqualified because he lacked personal experience with cases involving "a spray or mist turning into ... a gas and filling the atmosphere so it could float into an ignition source."

The threshold for expert qualification, however, does not require the degree of specialization mandated by the trial court. "While the trial court may rule that a certain subject of inquiry requires that a member of a given profession ... be called, usually a specialist in a particular branch within a profession will not be required." Mankoski v. Briley, 137 N.H. 308, 312–13, 627 A.2d 578 (1993) (brackets and quotation omitted). In Mankoski , we held that an orthopedic surgeon was not per se unqualified from testifying as an expert about the psychological health of his patient. More recently, we ruled that a serologist was qualified to testify about the source of blood taken from a victim's vaginal smear, despite her lack of specific knowledge regarding the age and condition of the victim. See State v. Newman, 148 N.H. 287, ––––, 808 A.2d 7 (2002). Thus, in this case, Jones' extensive background in the profession of fire investigation was sufficient to qualify him to testify about the plaintiff's causation theory despite his lack of experience with the specific type of fire causation alleged in this case.

The trial court also based its decision upon Jones' lack of knowledge about the scientific processes in his theory and his unfamiliarity with the relevant scientific literature. Formal academic knowledge, however, is only one means by which an expert may be qualified to testify under Rule 702. In this case, Jones' extensive expertise in "practical engineering," acquired from his work in fire investigation and with compressors, was sufficient to qualify him based upon his "knowledge, skill, experience, training, or education." N.H. R. Ev. 702.

Finally, the trial court noted that Jones did not conduct an experiment that successfully recreated his explanation of the fire's cause. This fact is not relevant to his qualification as an expert, but instead relates to the weight and credibility of his testimony, which is to be evaluated by the fact-finder. See Emerson v. Bentwood, 146 N.H. 251, 253, 769 A.2d 403 (2001). Because the record fails to support the trial court's conclusion that Jones was not qualified to testify about the plaintiff's theory, we hold that the trial court's disqualification on this ground was an unsustainable exercise of discretion.

The trial court ruled that the plaintiff's other expert witness, Dr. Paul, was qualified to testify about the plaintiff's theory concerning the cause of the fire. At oral argument, counsel for Air Services suggested that the trial court's determination was incorrect. This issue, however, is not raised in either of the defendants' briefs, and so we decline to address it.

Given that both Jones and Dr. Paul are qualified as experts, we next consider whether their testimony is admissible. Rule 702 states that a qualified expert may offer 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." N.H. R. Ev. 702. Thus, expert testimony "must rise to a threshold level of reliability to be admissible."

State v. Cressey, 137 N.H. 402, 405, 628 A.2d 696 (1993). For many years, New Hampshire followed Frye , which held that expert opinion must "have gained general acceptance in the particular field in which it belongs" to be admissible. Frye , 293 F. at 1014; see State v. Coolidge, 109 N.H. 403, 421–22, 260 A.2d 547 (1969), rev'd on other grounds , 403 U.S. 443, 91 S.Ct. 2022, 29 L.Ed.2d 564 (1971). Following the enactment of the Federal Rules of Evidence, the United States Supreme Court abandoned the Frye test in Daubert , establishing a more flexible standard of reliability that places special emphasis on four factors: (1) " whether a 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 or potential rate of error" of a particular technique; and (4) the Frye ...