Bitler v. A.O. Smith Corp.

• Decision Date: 06 December 2004
• Docket Number: No. 02-1527.,02-1527.
• Citation: 400 F.3d 1227
• Parties: Fred D. BITLER; Peggy A. Bitler; Colorado Compensation Insurance Authority, a political subdivision of the State of Colorado, Plaintiffs — Appellees, v. A.O. SMITH CORPORATION, a foreign corporation; National Propane Corp., formerly known as All Seasons Propane, a Colorado corporation, Defendants, and White Rodgers, a subsidiary of Emerson Electric Corp., a foreign corporation, Defendant — Appellant.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 1227

400 F.3d 1227

Fred D. BITLER; Peggy A. Bitler; Colorado Compensation Insurance Authority, a political subdivision of the State of Colorado, Plaintiffs — Appellees, v. A.O. SMITH CORPORATION, a foreign corporation; National Propane Corp., formerly known as All Seasons Propane, a Colorado corporation, Defendants, and White Rodgers, a subsidiary of Emerson Electric Corp., a foreign corporation, Defendant — Appellant.

No. 02-1527.

United States Court of Appeals, Tenth Circuit.

December 6, 2004.

As Clarified on Partial Grant of Rehearing February 9, 2005.

COPYRIGHT MATERIAL OMITTED

Daniel A. Nelson (Bruce A. Lampert, with him on the briefs), Schaden, Katzman, Lampert & McClune, Broomfield, Colorado, for Plaintiffs-Appellees Fred and Peggy Bitler.

Andrew M. Low (Peter J. Krumholz, with him on the briefs), Davis, Graham & Stubbs LLP, Denver, Colorado, for Defendant-Appellant.

Before LUCERO, McKAY and HARTZ, Circuit Judges.

LUCERO, Circuit Judge.

Danger lurked in Fred and Peggy Bitler's basement, liability for which is the occasion for the present appeal. Mr. Bitler was severely burned when a gas explosion occurred in the basement of his home. On filing a products liability suit against, inter alia, White-Rodgers as manufacturer of the gas control installed in his basement water heater, a jury returned a verdict finding negligence and product defect and awarded damages to the Bitlers. White-Rodgers' motions for JNOV and a new trial having been denied by the district court, the present appeal followed. In contesting the jury verdict imposing products liability on it for the explosion, White-Rodgers assigns as principal error the district court's admission of plaintiffs' expert testimony under Daubert principles. We exercise jurisdiction under 28 U.S.C. § 1291 and AFFIRM.

I

Fred and Peggy Bitler resided in a house provided for their use on the Oldland Ranch outside of Meeker, Colorado where Fred Bitler was a ranch hand. On the evening of the accident, July 25, 1996, Bitler discovered that there was no hot water when he attempted to shower. Hot water was supplied to the Bitlers' home by a liquid propane hot water heater located in the basement. Donning sweat pants, he proceeded to the basement door, unlatched it, and walked approximately two-third's of the way down the staircase when a large explosion occurred, knocking him backwards. His wife, Peggy Bitler, was thrown off a sofa and onto the floor, which was later determined to have been raised several inches by the force of the explosion. Fred Bitler sustained severe burns, and after being flown by helicopter to a hospital, underwent multiple skin graft surgeries over the following weeks. It was established at trial that he has, in addition to general disfigurement, continuing problems with regulation of his body temperature, use of his hands, growth of hair follicles, and he will also need additional procedures in the future to develop nail growth on his hands. As a result of the injuries he sustained in this accident, he is no longer able to perform the duties appertaining to his former occupation as a cowboy and ranch hand.

There were three gas propane appliances in the Bitlers' home — a cook stove in the kitchen, a furnace in a bedroom, and a space heater in one of the bedrooms. Gas was supplied to the water heater via unsupported, flexible copper tubing that ran along the basement ceiling joints. A "T-fitting" was located above the hot water heater which provided branches running to the hot water heater and the space heater. Post-accident inspection revealed a minor leak at the inlet to the bedroom heater, and a leak at the "T-connector."

White-Rodgers, a subdivision of Emerson Electric Co., manufactured the water heater gas control used in the Bitlers' hot water heater. This gas control regulates the flow of gas to the pilot and main burner of the water heater, and is designed to fulfill a crucial safety role if the pilot light is extinguished. To avoid a gas leak that could lead to an explosion or fire, the gas control is designed to shut off all gas flow to the pilot when the pilot is extinguished. As is well known, a lit pilot heats a thermocouple which in turn creates an electric current energizing an electromagnet that holds the safety valve open against the force of a spring. So long as the pilot is lit, the safety valve remains open. If the pilot goes out, however, the thermocouple will no longer be heated and will no longer produce a current to energize the electromagnet, allowing the spring to snap the valve shut. The safety valve seat is made of rubber, and is designed to create a seal against a circular metal surface when closed to prevent the flow of gas to the pilot.

Copper sulfide is a frequent contaminate found in gas and propane lines. If copper sulfide particles of sufficient size become lodged on a safety valve seat when a pilot is extinguished, the particles may prevent the valve from sealing, resulting in a gas leak. It was established that numerous accidents have occurred in this manner, and that copper sulfide contamination was a significant source of concern for White-Rodgers. As a consequence, White-Rodgers modified the design of the safety valve in 1978 and began installing a wire mesh screen in the gas inlet, upstream from the safety valve to prevent copper sulfide particles from migrating onto the rubber valve seat. In further recognition of the safety hazard caused by copper sulfide contamination, White-Rodgers recalled all gas controls lacking the mesh screen in 1980. Thereafter, White-Rodgers also began adding another safety feature to the mesh screen by installing a deflection "baffle" to aid in preventing debris from reaching the valve and to hold the edges of the mesh screen in place more effectively. The safety valve installed in the Bitler's water heater was one of about 200,000 devices produced in the interim that contained the mesh screen, but did not contain the baffle.

As a result of their investigations, plaintiffs' expert Elden Boh concluded that the water heater was the source of the accident, and plaintiffs' expert Donald Sommer concluded that the leak was caused by copper sulfide contamination on the water heater's safety valve seat. Elden Boh is a fire investigator hired by the Colorado Farm Bureau, and Donald Sommer is an engineer and accident investigator retained by the Bitlers. Although White-Rodgers contests the admissibility of these two experts on appeal, plaintiffs' expert W. Alan Bullerdiek, a chemical engineer, also testified concerning the history of copper sulfide-contamination-related accidents, and that the amount of contamination found on the Bitlers' safety valve seat was at an unacceptable level.

During post-accident testing of the safety valve installed in the Bitlers' water heater, the device was disassembled in the presence of representatives of both White-Rodgers and the Bitlers. Copper sulfide particulate contamination was discovered downstream of the mesh screen and found on the safety valve seat. During the teardown, a test of the valve revealed that it snapped shut as designed. Plaintiffs' expert, Donald Sommer, opined at trial that a mix of copper sulfide particles and grease located on the safety valve seat caused the leak. Mr. Sommer testified that the valve seat was altered after the accident when the control was turned to the "off" position; furthermore, he testified that because copper sulfide contamination leads to intermittent leaks, the teardown test could not be determinative. Whether the particles found on the safety valve were large enough or of sufficient quantity to have caused the gas leak in the present case is hotly disputed.

Having marshaled their expert witnesses and having ruled out to their satisfaction all other sources of the gas leak save for the gas control on the water heater, the Bitlers filed suit in Colorado State Court against White-Rodgers, as well as A.O. Smith Corporation, which manufactured the water heater, and National Propane Corporation, which installed and maintained the water heater and propane piping in the house. After removing the case to federal district court, defendants moved for summary judgment, contesting the admission of the plaintiffs' expert testimony as insufficiently reliable and lacking a firm foundation in science. In an order denying the motion, the trial judge found that the Bitlers' proposed expert testimony was relevant and reliable in accord with the standard required by Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993). The matter proceeded to a two-week jury trial, at the close of which the jury returned a verdict against White-Rodgers and National Propane, attributing fifty percent of the fault to National Propane and forty percent to White-Rodgers, and awarding $2,319,492.27 in damages to the Bitlers. As to White-Rodgers specifically, the jury found both negligence and product defect. In its order of October 30, 2002, the district court denied White-Rodgers' motions for judgment as a matter of law and for a new trial. This appeal followed.

II

We review de novo whether the district court properly performed its role as "gatekeeper" in admitting or excluding expert testimony. Dodge v. Cotter Corp., 328 F.3d 1212, 1223 (10th Cir.2003) ("Though the district court has discretion in how it conducts the gatekeeper function, we have recognized that it has no discretion to avoid performing the gatekeeper function."). We review for abuse of discretion the manner in which the district court exercises its Daubert "gatekeeping" role in making decisions whether to admit or exclude testimony. General Elec. Co. v. Joiner, 522 U.S. 136, 139, 118 S.Ct. 512, 139 L.Ed.2d 508 (1997). We will not, however, disturb a district court's ruling absent our conviction that it is arbitrary, capricious, whimsical, manifestly unreasonable, or clearly erroneous. Goebel v. Denver and Rio...