Booth v. Black & Decker, Inc.

• Decision Date: 12 April 2001
• Docket Number: No. CIV. A. 98-6352.,CIV. A. 98-6352.
• Citation: 166 F.Supp.2d 215
• Parties: Jacob J. BOOTH and Kathleen Booth, husband and wife, Plaintiff, v. BLACK & DECKER, INC., et al., Defendants.
• Court: U.S. District Court — Eastern District of Pennsylvania

166 F.Supp.2d 215

Jacob J. BOOTH and Kathleen Booth, husband and wife, Plaintiff, v. BLACK & DECKER, INC., et al., Defendants.

No. CIV. A. 98-6352.

United States District Court, E.D. Pennsylvania.

April 12, 2001.

Robert A. Stutman, Law Offices of Robert A. Stutman, P.C., Fort Washington, PA, for Plaintiff.

Donald J.P. Sweeney, J. Michael Kunsch, Sweeney, Sheehan & Spencer, Philadelphia, PA, Timothy L. Mullin, Jr., Miles & Stockbridge, P.C., Baltimore, MD, Daniel J. Divis, Gerolamo, McNulty & Lewbart, Philadelphia, PA, Howard P. Dwoskin, Marshall, Dennehey, Warner, Coleman & Goggin, Philadelphia, PA, Michael Fanning, Timby, Haft, Kopil, Fanning & Sacco, Newtown, PA, for Defendants.

MEMORANDUM

LOWELL A. REED, Jr., District Judge.

Defendant, Black & Decker, Inc., has moved for summary judgment in this products liability case. The motion hinges on the admissibility of plaintiffs' expert testimony concerning whether a toaster oven manufactured by Black & Decker was the cause of a fire that severely damaged plaintiffs' home. Upon consideration of the motion, plaintiffs' response, and the evidentiary record, including the testimony of plaintiffs' expert at Daubert hearings on January 4 and 10, 2001, the motion of defendants will be granted.

Background

On September 13, 1996, the residence of plaintiffs was ravaged by a fire. The parties agree that the fire began in the northeast corner of the kitchen. A number of appliances were located in that area of the kitchen, including a dishwasher, a toaster oven, and a microwave. Plaintiffs assert that the toaster oven caused the fire.¹ The toaster oven was manufactured by Black & Decker, and purchased by plaintiffs approximately three months before the fire took place.

Plaintiffs assert three causes of action: strict liability, negligence, and breach of warranty. They respond to summary judgment in cursory fashion, with five-page memorandum that relies completely upon and incorporates by reference the arguments and evidence presented by plaintiff in the related case Fanning v. Black & Decker, Civil Action No. 98-6141, 1999 WL 163628.² That case was settled as to Black & Decker, and dismissed by stipulation as to Caldor Corporation. Plaintiff in the related case focused on two theories of liability: design defect and manufacturing defect.³ Because plaintiffs in this case rely wholly on the arguments and evidence of plaintiff in the related case, I address here only the arguments and evidence advanced by plaintiff in the related case.

The crux of the motion for summary judgment is whether plaintiffs can prove that the toaster oven was defective and caused the fire; plaintiffs cannot succeed on any of their claims without proving defect and causation. Plaintiffs proffer the expert testimony of Richard B. Thomas, who is prepared to testify that the toaster oven was defective and caused the fire. Black & Decker argues that plaintiffs' expert, is not qualified to give his expert opinion as to a design or manufacturing defect in the toaster oven or the cause of the fire, and that his testimony is otherwise inadmissible.

This Court held two days of hearings on January 4 and 10, 2001, to determine the admissibility of Thomas' testimony, at which Thomas testified and explained photographs and images. Counsel for Black & Decker participated, as did counsel for the estate of Edith Fanning in the related case. Counsel for the Booths, plaintiffs in the instant action, took no part in that hearing, despite having received notice of it.

This Court concluded at the hearing that Thomas was qualified to testify on "matters involving electrical aspects of consumer product electrical devices, including a toaster oven...." (Transcript of Hearing on the Admissibility of Expert Testimony from Richard B. Thomas, Document No. 39, Jan. 4, 2001, at 15) ("Thomas Hearing I"). I also concluded that Thomas was qualified to interpret the results of a scanning electron microscope examination. (Id. at 109.)

The Court then turned to the questions of methodology and helpfulness to the trier of fact. Counsel for plaintiff in the related case proffered Thomas' testimony to prove that the design of the toaster oven was defective in a number of respects, that there was a manufacturing defect in the toaster, and that one or more such defects caused the fire. (Thomas Hearing I, at 11-12.) The Court expressly invited plaintiff's counsel to elicit testimony concerning the methodology applied by Thomas. (Id. at 4.) This Court also asked its own questions of Thomas and at the close of the hearing, invited the parties to bring to the Court's attention any other matters the Court should have addressed but did not. (Id. at 85.) Both parties affirmed that no stone had been left unturned. (Id.)

Thomas testified that at the outset of his investigation, there were "two candidates for the cause of the fire, a microwave oven and a toaster oven." (Transcript of Hearing on the Admissibility of Expert Testimony from Richard B. Thomas, Document No. 40, Jan. 10, 2001, at 11) ("Thomas Hearing II"). He was asked to examine both of them. He testified about his examination and explained a number of photographs of the toaster. He testified, "The condition of the [toaster] oven is certainly indicative of the — it being the cause of the fire." (Id. at 17.) Thomas explained his hypothesis of how the toaster oven caused the fire: "[T]he toaster oven overheated as a result of being kept on by a failure of the main power contacts." (Id. at 18.)

Thomas testified that he had attempted to confirm his hypothesis by examining the power contacts with a scanning electron microscope. This involved removing the contacts from the toaster oven and placing them under a scanning electron microscope to ascertain their condition. Thomas explained that the contacts had indications of melting and scoring, suggesting that the surfaces had welded. (Thomas Hearing II, at 61.)

Thomas also explained that the toaster oven was, in his opinion, defectively designed because it lacked a high-temperature limit switch or thermal cut-off device and because of an abundance of plastic material, which has a low melting point. (Id. at 30-31.) He concluded that a thermal cut-off device, which would shut off the power in the toaster oven when it reached a certain temperature and thus prevent overheating, could "easily" have been incorporated into the toaster oven at issue. He based this conclusion on (1) "general knowledge of the devices and their applications"; (2) the fact that [a thermal cut-off device] was incorporated into a Canadian unit; and (3) on the testimony of one of the manufacturer's representatives. (Thomas Hearing II, at 46.) Such a device would have, in the opinion of Thomas, "possibly prevented the fire." (Id.)

Thomas never conducted any testing to determine the maximum temperature that might be reached in the toaster oven. (Id. at 73-74.) Nor did he test his hypothesis by placing the toaster oven in an unregulated condition to determine whether it would start a fire under such circumstances. (Id. at 83-84.) Thomas did not conduct any testing or make a model of the kind of thermal cut-off device he believed should have been incorporated into the toaster oven. (Id. at 71.)

Daubert Analysis

The admissibility of expert testimony turns on whether the expert is qualified, and whether the testimony meets the two requirements of Rule 702 of the Federal Rules of Evidence, Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993) and Kumho Tire Co., Ltd. v. Carmichael, 526 U.S. 137, 119 S.Ct. 1167, 143 L.Ed.2d 238 (1999):(1) that the methodology underlying the testimony is valid and (2) that the opinion will be helpful to the factfinder.

Thomas' qualifications are not at issue, and thus, my focus today is on his methodology. To assess an expert's methodology under Rule 702, Daubert and Kumho Tire, a district court must, according to the Court of Appeals for the Third Circuit, be mindful of the following factors: "(1) whether a method consists of a testable hypothesis; (2) whether the method has been subjected to peer review; (3) the known or potential rate of error; (4) the existence and maintenance of standards controlling the technique's operation; (5) whether the method is generally accepted; (6) the relationship of the technique to methods which have been established to be reliable; (7) the qualifications of the expert witness testifying based on the methodology; and (8) the non-judicial uses to which the method has been put." Oddi v. Ford Motor Co., 234 F.3d 136, 145 (3d Cir.2000) (citations omitted); Elcock v. Kmart Corporation, 233 F.3d 734, 745-46 (3d Cir. 2000) (citations omitted).

Thomas advanced two hypotheses: (1) that a manufacturing defect caused the contacts of the toaster oven became welded together while it was being operated and caused the toaster oven to overheat and catch on fire; (2) that the toaster oven contained a design defect in that it lacked a thermal cut-off device.⁴ For the following reasons, I conclude that Thomas has not provided sufficient evidence for this Court to conclude that his methodology was reliable.

1. Manufacturing Defect

The method applied by Thomas in his investigation of the alleged manufacturing defect appears to have consisted of a testable hypothesis, but Thomas never tested his hypothesis. Thomas hypothesized that the fire was caused by a spontaneous welding of contacts in the toaster that caused the toaster to overheat and combust. Thomas never attempted to recreate this phenomenon with a similar or identical toaster, something that he conceded could have been done. (Thomas Hearing II, at 83-84.) Thomas' "tests" of his hypothesis consisted of an examination of the subject toaster oven's contacts under a scanning electron microscope, for the purpose of determining whether there was evidence of welding or fusing of the contacts that would have caused the...