Bryte ex rel. Bryte v. American Household

• Decision Date: 21 November 2005
• Docket Number: No. 04-1051.,04-1051.
• Citation: 429 F.3d 469
• Parties: David BRYTE, Personal Representative of the Estate of Lova E. BRYTE, deceased; David Bryte; Kathy B. Smith; James B. Smith; M.E. Smith, a minor, by and through her legal guardian, Kathy B. Smith; Donna J. Miller, Plaintiffs-Appellants, v. AMERICAN HOUSEHOLD, INCORPORATED, formerly known as Sunbeam Corporation; Sunbeam Products, Incorporated, Defendants-Appellees, and Sears Roebuck and Company, Defendant.
• Court: U.S. Court of Appeals — Fourth Circuit

429 F.3d 469

David BRYTE, Personal Representative of the Estate of Lova E. BRYTE, deceased; David Bryte; Kathy B. Smith; James B. Smith; M.E. Smith, a minor, by and through her legal guardian, Kathy B. Smith; Donna J. Miller, Plaintiffs-Appellants, v. AMERICAN HOUSEHOLD, INCORPORATED, formerly known as Sunbeam Corporation; Sunbeam Products, Incorporated, Defendants-Appellees, and Sears Roebuck and Company, Defendant.

No. 04-1051.

United States Court of Appeals, Fourth Circuit.

Argued May 26, 2005.

Decided November 21, 2005.

COPYRIGHT MATERIAL OMITTED

ARGUED: William J. Hansen, McDermott, Hansen & Mclaughlin, Denver, Colorado, for Appellants. Stephen Thomas Moffett, Moffett & Dillon, Birmingham, Michigan, for Appellees. ON BRIEF: George E. McLaughlin, McDermott, Hansen & Mclaughlin, Denver, Colorado, for Appellants. John E. Hall, John H. Williams, Jr., Eckert, Seamans, Cherin & Mellott, P.L.L.C., Morgantown, West Virginia; Thomas Vitu, Moffett & Dillon, Birmingham, Michigan, for Appellees.

Before WIDENER, NIEMEYER, and LUTTIG, Circuit Judges.

Affirmed by published opinion. Judge WIDENER wrote the opinion, in which Judge NIEMEYER and Judge LUTTIG concurred.

WIDENER, Circuit Judge.

On October 23, 2000, Lova Bryte died in a fire in her Preston County, West Virginia apartment. She was using an electrically heated throw at the time of the fire. Several weeks later, plaintiffs, Mrs. Bryte's personal representative and relatives, brought this action against defendant American Household, Inc. (formerly Sunbeam Corp.), the manufacturer of the throw. Plaintiffs alleged that the electric throw had a defective safety circuit and that this defect caused the deadly fire. At trial, the district court excluded various evidence, including expert testimony, offered by plaintiffs to prove the causation and defect elements of their claims. At the close of plaintiffs' case, the district court granted defendant's motion for judgment as a matter of law on the ground that plaintiffs had not established sufficient evidence of causation. Plaintiffs appeal from the district court's evidentiary rulings and the ensuing judgment for defendant. We affirm.

I.

Though the record on appeal is extensive, the basic facts of this case are not disputed. Mrs. Bryte had begun using the electric throw in question about two years before the fire occurred, after having suffered a stroke. As a result of her stroke, Mrs. Bryte could not pick herself up from her recliner without assistance, and her movement was limited to shifting in the chair. Also as a result of her stroke, Mrs. Bryte used the electric throw throughout the year to keep warm when sitting in her recliner. Typically, she would have had placed over her a blanket or afghan and the throw would be laid on top of the blanket. When in use, the electric throw would be plugged directly in to a wall outlet on Mrs. Bryte's left. When not in use, the throw was draped over the back of the recliner or a love-seat. The throw had not malfunctioned and there was no visible damage to it or its power cord.

Other than the recliner, the living room of Mrs. Bryte's apartment contained a love-seat, a television and VCR, a coffee table, a telephone, and a small table to the right of the recliner, which table had a lamp and a candle on it. Mrs. Bryte did not smoke.

The morning of the fire, Mrs. Bryte and her care-giver, Donna Miller, were in the apartment alone. During the late morning or early afternoon, Mrs. Miller assisted Mrs. Bryte into the recliner and then retrieved the electric throw from the back of the love-seat. Mrs. Miller covered Mrs. Bryte with a blanket, then with the throw, plugged the throw in to a wall outlet to the left of the recliner, and turned it on to the low setting. The throw was not tucked in around Mrs. Bryte's sides. The power cord extended, at Mrs. Bryte's feet, from the throw, and the temperature control rested on the floor to Mrs. Bryte's left below her feet. Mrs. Bryte did not adjust the temperature control herself. At around 11 a.m., Mrs. Miller had lighted the candle that sat on the small table to the right of the recliner. According to Mrs. Miller, at that time the candle was partly burned, and, as far as she saw, the flame had not extended above the rim of the glass candle container. Mrs. Miller also testified that Mrs. Bryte was unable to reach the candle, or the lamp that also was on the table. Mrs. Bryte could, however, reach a part of the table for such things as a denture cup, a Star magazine, a cookbook, a Bible and her glasses.

Mrs. Miller left the apartment at 1:55 p.m. to pick up Mrs. Bryte's granddaughter from school, leaving the candle lighted and the electric throw turned on. Mrs. Miller returned to the apartment at, she estimated, 2:08 p.m., at which time she heard Mrs. Bryte calling for help. Upon entering the apartment, Mrs. Miller saw smoke and fire coming up the left side of Mrs. Bryte's recliner and heard "snapping and cracking." Mrs. Miller did not see any flames related to the power supply cord of the electric throw and she could not identify more specifically the source of the flames, other than the fact that the flame was "down beside [Mrs. Bryte's] chair and up on her leg." Mrs. Miller tried, but was unable, to extinguish the fire. While in the apartment, however, Mrs. Miller was able to see that the candle was still lighted and that neither it nor the lamp had been moved or overturned. The flames and smoke forced Mrs. Miller to flee the apartment to get the children out.

Shortly after the fire was extinguished, and before the removal of Mrs. Bryte's remains, Assistant State Fire Marshall Mack Dennis was called to the scene. At that time, Dennis had been employed by the West Virginia State Fire Marshall's Office as a cause and origin investigator for over 20 years. While he was not certified as a fire investigator, he had attended numerous courses in arson and explosive investigation. Dennis' investigation of the fire scene traced the fire's path, starting from Mrs. Bryte's left side and moving around the room. Dennis took photographs of the fire scene and made a not-to-scale diagram of the room where the fire occurred, which located the large artifacts in the room. Dennis took oral, not written, statements from the witnesses to the fire.

Dennis' diagram did not indicate the wall outlets located in the room. He did observe, however, that the wall outlet immediately to Mrs. Bryte's left "had an electrical service cord plugged into it, and the remains of that cord came over to Mrs. Bryte and was [sic] laying across her arm." Dennis' report later characterized the cord as "wrapped around" Mrs. Bryte's left arm. He did not measure the cord or the exact distance between the wall outlet to her left and Mrs. Bryte's body, but approximated the distance to be "two and a half feet." Dennis did not recover or photograph the service cord that he saw draped across Mrs. Bryte's body. Indeed, Dennis did not know at first what this cord was for; only later, after speaking with family members and Mrs. Miller, did he learn that Mrs. Bryte had been using an electric throw at the time of the fire.

Dennis did not know that there was a lamp, or observe any other cord, plugged in to the same wall outlet as the cord found on Mrs. Bryte. But there was another cord, an extension cord running from a wall outlet behind the chair, to the lamp on the table. Moreover, he did not inspect the outlet's wiring. Dennis nonetheless excluded the outlet, and also the table, candle, and lamp as potential origins of the fire based on his discussions with Mrs. Miller and family members. Also, he made this determination without knowing how the candle had been lighted.

Dennis' only report, issued the day of the fire, concluded that the cause of the fire was "improper use of an electric blanket." Specifically, Dennis recorded Mrs. Miller as having told him that the electric throw was "around" Mrs. Bryte. Dennis later may have concluded, for reasons that are unclear due to interruptions in his testimony, that the throw may not have been used improperly. But he nevertheless maintained that the throw was the cause of the fire.

Critically, Dennis did not recover any artifacts or samples from the scene. Dennis testified that he had no reason to do so, nor did he advise the Brytes to preserve the fire scene or any of its artifacts, for the same reason: "I had no reason to believe it [the fire] was other than accidental." Apparently no one, until his attorney did, instructed David, Mrs. Bryte's son, about preserving evidence from the fire scene, and David removed the debris, including the recliner and electrical devices, and disposed of it at a landfill that he owned.¹

Plaintiffs filed this suit about six weeks later, on December 1, 2000.² In addition to Dennis, plaintiffs retained Dr. W.T. Cronenwett as an expert witness to offer opinion testimony regarding the specific cause of the fire. In his first deposition, Dr. Cronenwett opined that the electric throw was the ignition source of the fire. He based that opinion on "[t]he absence of any other ignition source in the area, the snapping and crackling that was heard, the fact that Mrs. Bryte was confined to her chair, did not smoke and had no opportunity or means to set herself on fire, and the fact that there are—have been a number of instances where the Sunbeam electrically heated bedding products have spontaneously burst into flames." More specifically, Dr. Cronenwett testified that the blanket caused the fire due to defectively designed circuitry. He acknowledged, however, that his opinion that the defective circuitry in the throw had caused the fire rested wholly on the conclusion of Dennis.³ Dr. Cronenwett attributed his inability to independently identify the specific source of ignition to the fact that there was "no remaining physical evidence" after the fire.

Dr. Cronenwett was deposed twice, the second time in April 2003....