Dillon v. Maxus Props., Inc., 4:17CV00813 JLH
| Decision Date | 09 April 2019 |
| Docket Number | NO. 4:17CV00813 JLH,4:17CV00813 JLH |
| Parties | ANTHONY "TONY" JOSEPH DILLON, as Special Administrator of the Estate of JANNELL DILLON, Deceased PLAINTIFF v. MAXUS PROPERTIES, INC., and LANDINGS ACQUISITION, LLC DEFENDANTS |
| Court | U.S. District Court — Eastern District of Arkansas |
This is an action arising from the death of JANNELL Dillon. On the morning of August 18, 2016, emergency personnel responded to 911 reports of a fire at Dillon's apartment in Little Rock. After entering the apartment to extinguish the fire, the responders found her dead on the floor of the hallway outside the two bedrooms. She had died from smoke and soot inhalation. Her estate sued the companies that owned and managed the apartment complex, alleging that the defendants breached duties owed to Dillon because the smoke detector within her apartment failed to sound an alarm during the fire. If it had sounded, the estate alleged, it would have timely alerted Dillon to the danger and she would have escaped.
Several motions are pending. The defendants have moved for partial summary judgment on Dillon's product liability and breach of an implied warranty of habitability claims. Dillon's estate has not responded to those motions, but has instead moved to withdraw those two claims. Because the partial summary judgment motions are unopposed, they are granted. The product liability and breach of an implied warranty of habitability claims are dismissed with prejudice. The plaintiff's motion to withdraw these two claims is denied as moot.
The plaintiff has moved to exclude two of the defendants' experts. The defendants have moved for summary judgment on the issue of causation, and have also moved for partial summary judgment on the plaintiff's punitive damages claim. For the reasons that will be explained, the plaintiff's motion to exclude the defendants' experts is granted in part and denied in part, the defendants' motion for summary judgment is denied, and the defendant's motion for partial summary judgment on the issue of punitive damages is denied.
The use of expert evidence in federal court is governed by Federal Rule of Evidence 702, as interpreted by the Supreme Court in Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S. Ct. 2786, 125 L. Ed. 2d 469 (1993). Rule 702 states:
A witness who is qualified as an expert by knowledge, skill, experience, training, or education may testify in the form of an opinion or otherwise if: (a) the expert's scientific, technical, or other specialized knowledge will help the trier of fact to understand the evidence or to determine a fact in issue; (b) the testimony is based on sufficient facts or data; (c) the testimony is the product of reliable principles and methods; and (d) the expert has reliably applied the principles and methods to the facts of the case.
The Court acts as a gatekeeper to ensure that a proffered expert is qualified by his knowledge, skill, experience, training, or education before that person may testify as an expert. Daubert, 509 U.S. at 589, 113 S. Ct. at 2795; Kumho Tire Co. v. Carmichael, 526 U.S. 137, 141, 119 S. Ct. 1167, 1171, 143 L. Ed. 2d 238 (1999).
"Rule 702 favors admissibility if the testimony will assist the trier of fact, and doubts regarding whether an expert's testimony will be useful should generally be resolved in favor of admissibility." Clark v. Heidrick, 150 F.3d 912, 915 (8th Cir. 1998) (citation and quotation omitted). "Only if an expert's opinion is 'so fundamentally unsupported that it can offer no assistance to the jury' must such testimony be excluded." Hose v. Chicago Nw. Transp. Co., 70 F.3d 968, 974 (8th Cir. 1995) (quoting Loudermill v. Dow Chem. Co., 863 F.2d 566, 570 (8th Cir. 1988)). "'[E]ven ifthe judge believes there are better grounds for some alternative conclusion, and that there are some flaws in the scientist's methods, if there are good grounds for the expert's conclusion it should be admitted.'" Bonner v. ISP Techs., Inc., 259 F.3d 924, 929 (8th Cir. 2001) (quoting Heller v. Shaw Indus., 167 F.3d 146, 152-53 (3d Cir. 1999)). "Vigorous cross-examination, presentation of contrary evidence, and careful instruction on the burden of proof are the traditional and appropriate means of attacking shaky but admissible evidence." Daubert, 509 U.S. at 596, 113 S. Ct. at 2798.
Here, the defense has designated Ryan Baker as an expert witness on the cause and origin of the fire that caused Dillon's death. Baker opines that (1) the fire originated in the apartment's west bedroom; (2) the material that first ignited was Dillon's bed linens; (3) the most probable ignition source was heat produced from an unattended or improperly discarded smoldering cigarette; (4) the cigarette ignited the bed linens or blankets and Dillon discarded the cigarette; and (5) an intentional act could not be eliminated. Document #32-1 at 7. The estate challenges Baker's testimony, arguing that "Baker failed to adhere to basic and central requirements of [the National Fire Protection Association standards] in investigating" the fire. Document #34 at 4.
"An expert qualified as a fire investigator may testify as to his opinion on the fire's origin and possible causes based on evidence." Booth v. Kelley, 882 F.3d 759, 762 (8th Cir. 2018). A fire origin and cause expert may "testify as to the point of origin and . . . explain that he inferred" what caused the fire through process of elimination. Hickerson v. Pride Mobility Prods. Corp., 470 F.3d 1252, 1257-58 (8th Cir. 2006). But an investigator may not testify as to who caused a fire. Booth, 882 F.3d at 762 ). TheEighth Circuit has approved of NFPA 921 as a valid method for determining the cause of a fire, so long as it is followed reliably. See Manuel v. MDOW Ins. Co., 792 F.3d 838, 845 (8th Cir. 2015).
Baker concluded that the fire was caused by a cigarette based on multiple scene inspections, a two-day laboratory examination of evidence from the scene, interviews with two witnesses, and an affidavit by Dillon's neighbor. See Document #32-1 at 3-6. Baker himself did not conduct each of the inspections and examinations, but under NFPA 921 a fire investigator may rely on the findings of others. NFPA 921 explains that a proper origin and cause investigation consists of "an examination of the scene and by a combination of other data collection methods, such as the review of previously conducted investigations of the incident, the interviewing of witnesses or other knowledgeable persons, and the results of scientific testing. Document #32-10 at 7-8. NFPA 921 thus expressly allows an investigator to rely on facts or data gathered by others. The estate complains that Baker did not analyze the bedding itself, but it has pointed to nothing in NFPA 921 that requires such specific testing. Many items of evidence from fire scene were tested. Document #32-1 at 14-17, 305-306.
Most of Baker's testimony is admissible. See Hickerson, 470 F.3d at 1257. The purported flaws in Baker's testimony go to its weight, not admissibility. The estate has pointed out gaps in Baker's investigation and the basis for his conclusion. For example, Baker does not know what materials the blankets were made of. Document #32-2 at 68-70. The estate will be able to expose these weaknesses in Baker's report as well as argue inferences the jury should make from the report's omissions. See Daubert, 509 U.S. at 596, 113 S. Ct. at 2798.
Baker may not, however, testify that Dillon herself discarded a smoldering cigarette for two reasons. First, this testimony is not scientific, technical, or other specialized knowledge purportedto be within Baker's expertise. See Fed. R. Evid. 702. Second, the Eighth Circuit has indicated specifically "that a fire investigator should not 'usurp the province of the jury' by testifying as to who caused the fire." Booth, 882 F.3d at 762. Baker may not testify that "the tenant, Ms. Dillon" improperly discarded any cigarette that caused the fire, as his report indicates.
The defense has also designated Tony Bishop as a forensic engineering expert. The estate asks the Court to exclude parts of his opinions. The estate moves to exclude Bishop's opinion that "[t]he electrical facilities and utilization devices in the structure did not serve as an ignition source for the fire." Document #32-4 at 2. The estate also moves to exclude any testimony that the smoke alarm sounded at the time of the fire.
As with Baker's testimony, the estate attacks Bishop's methodology as noncompliant with NFPA 921. Specifically, the estate challenges Bishop's failure to test his hypothesis that a power cord in Dillon's bedroom did not start the fire and his hypothesis that the smoke alarm did not sound during the fire. Bishop's report reveals that he followed NFPA 921 by reviewing and relying on previously conducted investigations of the incident, interviewing of witnesses or other knowledgeable persons, and scientific testing. Document #32-10 at 7-8. Much of the estate's attack rests on a withering critique of Bishop by a rebuttal expert, whose own previous scholarship formed the basis of some of Bishop's testimony. But the jury will be able to hear from this rebuttal expert and will be able to determine from all the evidence what weight to give Bishop's testimony. Bishop's testimony is admissible.
A court should enter summary judgment if the evidence, viewed in the light most favorable to the nonmoving party, demonstrates that there is no genuine dispute as to any material fact and that the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(a); see also Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249-50, 106 S. Ct. 2505, 2511, 91 L. Ed. 2d 202 (1986); Torgerson v. City of Rochester, 643 F.3d 1031, 1042 (8th...
To continue reading
Request your trial