Breidor v. Sears, Roebuck and Co.
| Decision Date | 09 December 1983 |
| Docket Number | No. 82-1291,82-1291 |
| Citation | 722 F.2d 1134 |
| Parties | , 14 Fed. R. Evid. Serv. 978 Francis and Barbara BREIDOR, Appellants, v. SEARS, ROEBUCK AND CO. and Whirlpool Corporation, Appellees. |
| Court | U.S. Court of Appeals — Third Circuit |
Leonard M. Sagot (argued), W. Michael Mulvey, Sagot & Jennings, Philadelphia, Pa., for appellants.
Harry A. Short, Jr. (argued), Liebert, Short, Fitzpatrick & Lavin, Philadelphia, Pa., for appellees.
Before HUNTER, GARTH and BECKER, Circuit Judges.
This appeal requires us to consider whether the district court's rulings, that restricted direct examination of plaintiffs' expert as to the probable cause of a malfunction in a refrigerator that allegedly caused a fire that destroyed plaintiffs' home, constituted harmful error. Because we find that the court's evidentiary rulings were erroneous and harmful within Fed.R.Evid. 103(a), we will reverse and remand for a new trial.
On April 10, 1979, plaintiffs Francis and Barbara Breidor purchased from defendant Sears, Roebuck and Company a refrigerator manufactured by defendant Whirlpool Corporation. From that date until July 24, 1980, the refrigerator was in continuous use, and plaintiffs experienced no problems with the unit. On the evening of July 24, 1980, plaintiffs' daughter used the refrigerator sometime between 10:00 and 10:15 p.m., and it was functioning normally. She then left the house. Shortly thereafter a fire broke out that destroyed much of the family's home and its contents. No member of the Breidor household was home when the fire was reported at around 11:00 p.m.
Alleging that the fire was caused by a defect in the refrigerator, plaintiffs brought suit in Philadelphia County Court of Common Pleas against Sears and Whirlpool. The suit was predicated on strict liability under Restatement (Second) of Torts Sec. 402A (1965). Defendants removed the case to the District Court for the Eastern District of Pennsylvania pursuant to 28 U.S.C. Sec. 1441 (1976). 1 The case proceeded to a bifurcated trial. The liability portion of the trial focused on the origin and cause of the fire. Defendants contended and offered expert testimony to show that the fire began at a low point alongside the refrigerator, that the unit was not defective, and that there is not enough oxygen inside a refrigerator to sustain a fire. Plaintiffs contended that the fire originated inside the upper part of the refrigerator, and was caused by a defect in the refrigerator. Plaintiffs' expert witness, William Emory, testified that the fire originated in the upper part of the refrigerator but stated that he could not find a specific defect. Because of this concession, and despite repeated attempts by plaintiffs' counsel, Emory was not allowed to render an opinion as to the cause of the fire.
The jury returned a verdict in favor of Sears and Whirlpool, and this appeal followed. The plaintiffs contend that the district court abused its discretion in refusing to permit Emory to give his opinion as to the cause of the fire, and that the exclusion of this evidence affected plaintiffs' "substantial rights" within the meaning of Fed.R.Evid. 103(a).
Because this appeal turns on the admissibility of Emory's testimony, it is necessary to recount it in some detail. Emory, a professional engineer and fire investigator, was qualified as an expert on the origins and causes of fires. He first testified that the origin of the fire was in the "upper part of the refrigerator." 2 Next, he turned to the cause of the fire. Emory testified that, as a result of further investigation, he was able to eliminate several possible causes of the fire, including a smoldering cigarette or other object on the floor next to the refrigerator, an electrical breakdown in the wall outlets or the wires running to the refrigerator, or a malfunction in the refrigerator's compressor. Elimination of these possible causes reinforced Emory's initial conclusion that the fire originated in the upper part of the refrigerator.
Emory then discussed the probable cause of a fire that originates in the upper part of a refrigerator. He explained that he had gone to Sears to get information about the electrical components that were in the upper part of the refrigerator, but that he could not get this information. He also testified that he observed that the thermostat was located in the top of the refrigerator along with some other component. Using this information, he decided to try to cut into the refrigerator casing to see if he could find some problem with the thermostat, or some other source of ignition that could have caused the fire. Emory was then asked:
Q. When did you do that?
A. October 10th. The cut out portion in the back [of the refrigerator] was something I hacked out with a hack saw blade or whatever we had. We were not too successful. I could not find a specific defect. I gave it considerable thought and what I finally came up with is there had been a breakdown in the electrical MR. SHORT (defendant's counsel): I object.
The gentlemen said that he could not find a defect, and, therefore, I object to any expression of opinion.
THE COURT: What did you say?
Repeat your answer.
THE WITNESS: I could not find a specific defect due to the location of the component in the inner part and due to the fire cone.
What I did do is make an analysis as is common in engineering and determine the source of fire what [sic] would have had to be ignition by electrical objects.
A. In my opinion, there was an electrical breakdown which creates an electrical arcing which is over two thousand degrees farenheit.
The process of electrical arcing produces a pressure wave due to the temperature and the pressure conditions there would have been sufficient to have pushed open the upper door.
Emory next testified that, because the fire often destroys all direct evidence of its cause, fire experts often cannot find any specific cause of a fire. Emory explained that this lack of direct evidence frequently requires fire experts to rely on circumstantial evidence to establish the probable cause of a fire. 3 Emory then explained that in this case he could not find any direct evidence (i.e., a "specific defect"), because of the fire damage to the refrigerator and because the location of the electrical components inside the metal casing of the refrigerator made it impossible to access them. 4
Emory also testified that the basis for his proffered expert opinion was: (1) the construction of the refrigerator; (2) the damage he observed; (3) the parts list provided by Whirlpool; (4) his background and experience in investigating other fires; (5) the source of the fuel (cabinet insulation); and (6) his knowledge of electricity and his experience with electrical objects. 5
Plaintiffs' counsel also attempted--unsuccessfully--to have Emory testify that he had eliminated all other possible causes of the fire except for an electrical malfunction in the thermostat unit.
Q. Based on that opinion, and also based on your review and investigation, would you tell this jury all of the possible ways a fire could have originated inside that refrigerator or freezer?
....
Q. Mr. Emory, is there any other possible explanation for how the fire would have originated inside the refrigerator other than to be originated by electricity? MR. SHORT: Objection, sir.
Q. Does your investigation point to any possible origin outside the refrigerator that could have started the fire?
Despite this testimony establishing that fire experts frequently rely on circumstantial evidence in forming an expert opinion as to the cause of a fire, and that, because of the fire damage and the location of the electrical components inside the refrigerator casing, there was no direct evidence available in this case, and despite the fact that Emory was apparently prepared to testify that the evidence pointed to an electrical malfunction in the thermostat as the only possible cause of the fire, the district court repeatedly refused to permit Emory to state his opinion as to the probable cause of the fire.
Expert opinion evidence is admissible if it "will assist the trier of fact to understand the evidence or to determine a fact in issue." Fed.R.Evid. 702. "[T]he trial judge has broad discretion in the matter of the admission or exclusion of expert evidence, and his action is to be sustained unless manifestly erroneous." Salem v. U.S. Lines Co., 370 U.S. 31, 35, 82 S.Ct. 1119, 1122, 8 L.Ed.2d 313 (1962); Seese v. Volkswagenwerk A.G., 648 F.2d 833, 844 (3d Cir.); cert. denied, 454 U.S. 867, 102 S.Ct. 330, 70 L.Ed.2d 168 (1981); see Fed.R.Evid. 103(a) ()
The grounds for the district court's refusal to admit Emory's expert testimony are not clear from the record. Based upon a careful reading of the trial transcript we have gleaned two possible reasons for the court's decision. First, some of the district court's statements to plaintiffs' counsel appear to reflect the court's concern that, because Emory could not find a specific defect, his opinion as to the probable cause of the fire was mere guess work. Second, evidence in the record suggests that the court may have considered Emory's testimony unnecessary because the plaintiffs had adduced enough evidence of a malfunction in the upper portion of the refrigerator to permit the case to go to the jury under the theory of MacDougall v....
To continue reading
Request your trial
-
U.S. v. Lankford
...566 F.2d 884, 886 (4th Cir.1977); see also United States v. Parshall, 757 F.2d 211, 213-14 (8th Cir.1985); Breidor v. Sears, Roebuck & Co., 722 F.2d 1134, 1140-41 (3d Cir.1983). C. Harmless 1. Cross-Examination of LeCroy Having found that the district court erred in limiting the cross-exami......
-
U.S. v. Downing
...418 (1952)); 3 J. Weinstein & M. Berger, Weinstein's Evidence Sec. 702, at 702-12 n. 6 (citing cases). Cf. Breidor v. Sears, Roebuck and Co., 722 F.2d 1134, 1138 (3d Cir.1983) (citing Salem v. United States Lines Co., 370 U.S. 31, 35, 82 S.Ct. 1119, 1122, 8 L.Ed.2d 313 (1962)) (district cou......
-
In re Agent Orange Product Liability Lit.
...issues in the protracted Agent Orange litigation — causation — and would therefore assist the trier of fact. Breidor v. Sears, Roebuck and Co., 722 F.2d 1134, 1139 (3d Cir.1983). His general scientific technique consists of making an inference from epidemiologic data and animal studies that......
-
Leonard v. Stemtech Int'l Inc.
...were similar to those in this case goes to the weight given to his testimony, rather than admissibility. SeeBreidor v. Sears, Roebuck & Co., 722 F.2d 1134, 1138–39 (3d Cir. 1983) ("Where there is a logical basis for an expert's opinion testimony, the credibility and weight of that testimony......