Am. Modern Home Ins. Co. v. Thomas
| Decision Date | 17 September 2018 |
| Docket Number | No. 4:16 CV 215 CDP,4:16 CV 215 CDP |
| Parties | AMERICAN MODERN HOME INSURANCE COMPANY, Plaintiff, v. AARON THOMAS, et al., Defendants. |
| Court | U.S. District Court — Eastern District of Missouri |
This case arises out of a fire that occurred in Aaron and Aimee Thomas's apartment on January 3, 2014. The Thomases made a claim on their renter's insurance policy, but their insurer, American Modern Home Insurance Company, has yet to determine the claim. American Modern brought this declaratory judgment action in February 2016 seeking a declaration that there is no coverage under the policy. In their counterclaim, the Thomases seek a declaration that they are entitled to recover on the policy. They also raise claims of vexatious refusal to pay and intentional infliction of emotional distress. The case is set for trial beginning October 9, 2018, and the parties have filed motions to exclude certain expert testimony at trial. I will grant these motions in part and deny them in part. I will also deny the parties' motions for partial summary judgment.
In its complaint, American Modern contends that the Thomases' claim is not covered under the insurance policy because 1) the fire was intentionally set by or at the direction of the Thomases, 2) the Thomases engaged in fraudulent and dishonest conduct in relation to their claim, and 3) the Thomases failed to cooperate and failed to comply with their responsibilities related to the investigation and their claim. The Thomases deny American Modern's allegations and themselves seek a declaration that they are entitled to recover under the policy. In addition, the Thomases bring a claim of vexatious refusal to pay, arguing that American Modern made lengthy, abusive, and unwarranted record requests; engaged in dilatory tactics in its purported investigation of the insurance claim; and refused to pay on the claim without reasonable cause for over two years before bringing this action. Aimee Thomas also contends that she suffered severe emotional distress because of the extreme and outrageous tactics American Modern used during its handling of the claim, including the repeated accusations made to her by fire investigators that she set the fire and their attempts to make her confess under veiled threats of criminal prosecution, losing custody of her daughter, and her husband being suspended from National Guard training.
The parties have moved to exclude the testimony of fire cause and origin experts and insurance industry experts under Fed. R. Evid. 702 and Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579 (1993), and its progeny. The purpose ofsuch motions is to ensure that only reliable and relevant expert testimony is presented to a jury. Russell v. Whirlpool Corp., 702 F.3d 450, 456 (8th Cir. 2012).
The opinion of a qualified expert witness is admissible if: 1) it is based upon sufficient facts or data, 2) it is the product of reliable principles and methods, and 3) the expert has applied the principles and methods reliably to the facts of the case. Fed. R. Evid. 702.; see also David E. Watson, P.C. v. United States, 668 F.3d 1008, 1015 (8th Cir. 2012). A party's mere disagreement with an expert's assumptions and methodologies does not warrant exclusion of expert testimony. David E. Watson, 668 F.3d at 1015. If a party thinks other assumptions and methodologies are more appropriate, it may make this apparent through cross-examination and its own expert witnesses. Id. "[Q]uestions of conflicting evidence must be left for the jury's determination." Bonner v. ISP Techs., Inc., 259 F.3d 924, 930 (8th Cir. 2001) (internal quotations marks and citation omitted).
I have substantial discretion in determining whether expert testimony should be allowed. Russell, 702 F.3d at 456. If I am satisfied with the expert's knowledge, skill, experience, training, or education, and the expert's testimony is reasonably based on that expertise, admitting the testimony is not an abuse of discretion. Daubert, 509 U.S. at 588-91; Weitz Co. v. MH Washington, 631 F.3d 510, 527 (8th Cir. 2011). I should resolve doubts regarding an expert's testimony in favor of admissibility. Marmo v. Tyson Fresh Meats, Inc., 457 F.3d 748, 758(8th Cir. 2006). However, if the expert's opinion is so fundamentally unsupported that it can offer no assistance to the jury, it must be excluded. Bonner, 259 F.3d at 929-30.
Against this backdrop, I turn to the issues raised by the parties in relation to the proffered expert testimony in this case.
Each side has proffered the opinions and testimony of fire cause and origin experts. American Modern's two experts, Dan Bruno and John Nordyke, opine that the fire was incendiary in nature and originated on the floor in the passageway between the dining room and kitchen with ignition of flammable liquid. The Thomases' expert, Jim Kuticka, opines that the fire was accidental and originated on the stove when overheated vegetable oil ignited in a pot upon removal of the pot's lid.
Neither side challenges the personal educational, training, or experience qualifications of the other's expert(s) to testify generally in the area of fire origin and cause. However, they challenge the opposing experts on other grounds.
Dan Bruno is the Fire Marshal of the West County EMS and Fire Protection District who responded to the fire during the afternoon of January 3, 2014, and conducted the subsequent investigation. Bruno's examinations of the fire sceneincluded taking photographs, making diagrams, measuring charred trusses, and moving debris to observe burn and char patterns. Bruno interviewed the Thomases; received statements from friends, family, and acquaintances of the Thomases; reviewed cell phone messages between the Thomases; and reviewed Aimee Thomas's 911 emergency call. He researched the litigation history of the Thomases, contacted and spoke with the Thomases' insurance adjuster at American Modern, and conducted a recorded interview of Aimee Thomas jointly with American Modern's fire investigator, John Nordyke. From his observations and the information gathered during this investigation, Bruno formed various hypotheses and eliminated each of them except for the fire being intentionally set. He based this conclusion on several factors, including what he considered to be a liquid pour pattern on the floor extending from the kitchen to the dining room, the extent of fire damage when considering the time elapsed between the 911 call and fire suppression, the location of the most extensive fire damage, and the Thomases' demeanor and statements.
The Thomases argue that the methodology used by Bruno to determine origin and cause was not consistent with NFPA 921 and that his opinion must therefore be excluded. NFPA 921 is a well-accepted standard set forth by the National Fire Protection Association by which fire investigations are to be conducted. It requires that hypotheses of fire origin be carefully examined against empirical data obtainedfrom the fire scene and appropriate testing. See Fireman's Fund Ins. Co. v. Canon USA, Inc., 394 F.3d 1054, 1057-58 (8th Cir. 2005); see also Presley v. Lakewood Eng'g & Mfg. Co., 553 F.3d 638, 645 (8th Cir. 2009). While an expert who purports to follow NFPA 921 must apply it reliably or his testimony may be excluded, Manuel v. MDOW Ins. Co., 791 F.3d 838, 845 (8th Cir. 2015), NFPA 921 is not the only reliable way to investigate a fire. Russell, 702 F.3d at 455. Therefore, a fire expert's reliance on a methodology other than NFPA 921 does not render his opinion unreliable per se. Id. at 455-56.
Bruno does not claim that he followed and applied NFPA 921's provisions in his investigation of the fire. His failure to follow NFPA 921 therefore cannot serve as basis to exclude his expert opinion on cause and origin. Russell, 702 F.3d at 455-46. The issue, then, is whether Bruno's methodology in forming the bases of his opinion is otherwise sufficiently reliable. I find that it is.
In the context of fire investigations, an expert opinion formed on the basis of observation and experience may meet the reliability threshold if the expert observed the relevant evidence, applied his specialized knowledge, and systematically included or excluded possible theories of causation. Shuck v. CNH America, 498 F.3d 868, 875 (8th Cir. 2007). See also Russell, 702 F.3d at 456-58 (); Hickerson v. Pride Mobility Prods. Corp., 470 F.3d 1252, 1257 (8thCir. 2006) (same). This is what Bruno did here. During the course of his investigation, Bruno gathered evidence, formed hypotheses as to the possible origin and cause of the fire, systematically evaluated the evidence against these hypotheses, and reached conclusions as to the validity of his hypotheses based on specific observations of the evidence in this case and his experience in fire investigation. This method is sufficiently reliable. See Russell, 702 F.3d at 457; Hickerson, 470 F.3d at 1257. I will therefore deny the Thomases' motion to the extent they seek to exclude Bruno's expert opinion regarding the origin and cause of the fire. The Thomases' challenges to Bruno's credibility and the credibility of his opinion based on bias, taint, and unethical conduct are proper subjects for cross-examination.
I agree with the Thomases, however, that Bruno is not qualified to render an opinion on the meaning of a person's emotional responses, motivations, or veracity. Although Bruno can testify as a lay witness to factual descriptions of a person's conduct and their interactions with him (e.g., smiling, calm, crying), I will not permit him to testify as to how he believed any person felt based on their conduct (e.g., satisfaction, pride), or to his own subjective characterization of any person's conduct (e.g., "beyond bizarre," "beyond abnormal"). S...
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