Cash v. LG Elecs., Inc.

• Decision Date: 08 September 2017
• Docket Number: A17A0878.
• Citation: 804 S.E.2d 713
• Parties: CASH et al. v. LG ELECTRONICS, INC. et al.
• Court: Georgia Court of Appeals

342 Ga.App. 735

804 S.E.2d 713

CASH et al.

v.LG ELECTRONICS, INC. et al.

A17A0878.

Court of Appeals of Georgia.

September 8, 2017

Eric Sean Brock, Peter Charles Scholle, Duluth, David Alan Sleppy, Cornelia, Omar R. Chawdhary, Jason C. Webster, Houston, TX, Samuel K. Allen, for Appellants.

Edward Croxall Bresee Jr., Arthur James Park, Atlanta, Ayesha N. Khan, John W. Moss, for Appellees.

Miller, Presiding Judge.

This case involves a tragic fire at the home of appellant Debbie Cash, which resulted in the death of Cash's husband and son. Cash and her surviving daughter filed suit against LG Electronics, Inc.¹ alleging, among other claims, strict liability and negligence. Cash claims that the LG television in her living room was the cause of the fire, and in support she submitted the expert testimony of an engineer who attempted to recreate the origin of the fire. Upon LG's motion, the trial court excluded the expert's testimony, finding that the expert's opinion was not based on sufficient facts or reliable principles and methods, as required by Daubert v. Merrell Dow Pharmaceuticals, Inc. , 509 U. S. 579, 113 S.Ct. 2786, 125 LE2d 469 (1993). After excluding Cash's causation expert, the trial court granted summary judgment to LG based on the lack of competent and admissible evidence that there was a defect in the television that caused the fire. This appeal followed, and after a thorough review of the record, we affirm.

The evidence in this case shows that, on the morning of July 6, 2011, Cash's son woke up and went into the living room to watch TV. He then came into Cash's room and told Cash and her husband that the house was on fire. When Cash looked in the living room, she saw green-black smoke and that the entire entertainment center was on fire. When she and her husband were unable to extinguish the fire, Cash exited the house. Believing that her husband and son had already escaped, Cash went to a window and pulled her daughter out. Once Cash realized her husband and son were trapped in the house, the fire was too extensive for her to rescue them.

Mr. Cash died in the house. Fire fighters pulled Cash's son from the house, but he subsequently died at the hospital.

Following an investigation, the Gwinnett County fire department determined that the fire started in the vicinity of the entertainment center, but they were unable to determine the exact origin of the fire. Cash's expert opined that an internal component in the television's power supply board failed due to a manufacturing defect or mechanical damage, triggering a chain reaction that caused a fire.

1. Cash argues that the trial court erred in excluding her expert's testimony because his methods were reliable and his testimony was based on sufficient facts and data. We disagree.

"[W]hether expert testimony ought to be admitted under [ OCGA § 24–7–702 ] is a question committed to the sound discretion of the trial court." (Citation omitted.) Scapa Dryer Fabrics, Inc. v. Knight , 299 Ga. 286, 289, 788 S.E.2d 421 (2016). We will not disturb the trial court's determination "absent a manifest abuse of discretion." Mason v. Home Depot U.S.A., Inc. , 283 Ga. 271, 279 (5), 658 S.E.2d 603 (2008).

OCGA § 24–7–702 governs the admissibility of expert testimony, and it requires that the trial court act as "gatekeeper to ensure the relevance and reliability of expert testimony." (Citation and punctuation omitted.) Scapa Dryer Fabrics, Inc. , supra, 299 Ga. at 289, 788 S.E.2d 421. The statute specifically provides:

If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education may testify thereto in the form of an opinion or otherwise, if: (1) The testimony is based upon sufficient facts or data; (2) The testimony is the product of reliable principles and methods ; and (3) The witness has applied the principles and methods reliably to the facts of the case which have been or will be admitted into evidence before the trier of fact.

(Emphasis supplied.) OCGA § 24–7–702 (b)

Importantly,

in interpreting and applying this Code section, the courts of this state may draw from the opinions of the United States Supreme Court in Daubert v. Merrell Dow Pharmaceuticals, Inc. , 509 U. S. 579 [113 S.Ct. 2786, 125 L.Ed.2d 469] (1993) ; General Electric Co. v. Joiner , 522 U. S. 136 [118 S.Ct. 512, 139 L.Ed.2d 508] (1997) ;

Kumho Tire Co. Ltd. v. Carmichael , 526 U. S. 137 [119 S.Ct. 1167, 143 L.Ed.2d 238] (1999) ; and other cases in federal courts applying the standards announced by the United States Supreme Court in these cases.

OCGA § 24–7–702 (f). The trial court has "substantial discretion in deciding how to test an expert's reliability." (Citation omitted.) Butler v. Union Carbide Corp. , 310 Ga. App. 21, 26 (1), 712 S.E.2d 537 (2011). The party seeking to rely on the expert bears the burden of proving the expert is sufficiently reliable. Id.

To admit expert testimony under OCGA § 24–7–702, the trial court must consider: (a) the qualifications of the expert; (b) the reliability of the testimony; and (c) the relevance of the testimony. Scapa Dryer Fabrics, Inc. , supra, 299 Ga. at 289, 788 S.E.2d 421. These are three distinct factors, and courts should be careful not to conflate them. Quiet Technology DC–8, Inc. v. Hurel-Dubois UK, Ltd. , 326 F.3d 1333, 1341 (II) (A) (11th Cir. 2003). The trial court in this case focused solely on the reliability of the expert's testing, and accordingly, we do as well.

[G]enerally, reliability is examined through consideration of many factors, including whether a theory or technique can be tested, whether it has been subjected to peer review and publication, the known or potential rate of error for the theory or technique, the general degree of acceptance in the relevant scientific or professional community, and the expert's range of experience and training.

(Citations and punctuation omitted.) Old Republic Nat. Title Co. v. RM Kids, LLC , 337 Ga. App. 638, 647 (4), 788 S.E.2d 542 (2016), cert. denied (Feb. 27, 2017). This is not an exhaustive list of factors, and courts may consider them in a "flexible" manner. United Fire & Cas. Co. v. Whirlpool Corp. , 704 F.3d 1338, 1341 (II) (11th Cir. 2013). The trial court may not exclude an otherwise sufficient expert "simply because it believes that the opinion is not—in its view—particularly strong or persuasive. The weight to be given to admissible expert testimony is a matter for the jury." Seamon v. Remington Arms Co., LLC , 813 F.3d 983, 990 (III) (A) (2) (11th Cir. 2016).

Importantly, however, a trial court is not permitted to "admit opinion evidence that is connected to existing data only by the ipse dixit of the expert. A court may conclude that there is simply too great an analytical gap between the data and the opinion proffered." Gen. Elec. Co. v. Joiner , 522 U. S. 136, 146 (III), 118 S.Ct. 512, 139 L.Ed.2d 508 (1997) ; see also HNTB Ga., Inc. v. Hamilton-King , 287 Ga. 641, 644 (1), 697 S.E.2d 770 (2010). That is precisely the problem with the expert's methodology in this case.

a. Sufficient facts and data

Under this prong, we consider the facts on which the expert relied to reach his conclusions. "Although an expert lacks direct evidence of the cause of the fire, the expert may rely upon circumstantial evidence to support his theory." (Citations and punctuation omitted.) Great Northern Ins. Co. v. Ruiz , 688 F.Supp.2d 1362, 1371 (III) (A) (1) (a) (S.D. Ga. 2010).

Here, the expert formulated a hypothesis that the television was the source of the fire, based on the following circumstantial evidence: Cash's testimony that she saw the fire burning upwards from the middle of the entertainment center; the more significant amount of burning in the area of the speaker compared with the remainder of the TV; and the destruction of the power board in the TV.² Based on this evidence, the expert conducted testing to establish the nature of the failure in the television.

b. Principles and methodology³

Cash's expert opined that the fire was caused by a series of events, beginning with one of two internal components called capacitors⁴ located in the power supply board of the TV. Specifically, the expert stated that "Capacitor C612" failed due to a manufacturing defect or mechanical damage, and as a result, pressure increased inside Capacitor C612, causing the vented end of the capacitor to extend outward, like "wings," and make contact with an adjacent component called the heat sink.⁵ He contended that this contact created a "rather violent" electrical arc that was sufficient to ignite vapors and/or other materials inside the television. He then opined that the resulting flame burned the gasses as they escaped from Capacitor C612, igniting either a plastic sleeve surrounding the capacitor or a paper component in the power supply board. This ignition then caused flammable materials to drip and engulf components of the speaker located in the bottom right hand corner of the TV. This fire, he claimed, eventually ignited the remainder of the plastic base of the TV, and spread beyond the television. To prove this hypothesis, the expert designed a protocol to reverse engineer the cause of the fire. Problematically, however, the expert's methodology required repeated manipulation to achieve his desired results.

Specifically, the expert testified that, to complete the first step of his hypothesis, it was critical to establish that the "wings" from Capacitor C612 made contact with the neighboring heat vent component. At the outset, the expert manipulated the experiment in a way that did not reflect the conditions in existence on the day of the fire because he removed a safety fuse from the TV to trigger the venting of Capacitor C612's wings. However, there was no evidence that the safety fuse was missing from the LG TV at issue at the time of the fire....