Dunn v. Nexgrill Indus. Inc.

• Decision Date: 25 February 2011
• Docket Number: No. 09–2722.,09–2722.
• Citation: 636 F.3d 1049
• Parties: Thomas DUNN; Thelma Dunn, Appellants,v.NEXGRILL INDUSTRIES, INC., Appellee.
• Court: U.S. Court of Appeals — Eighth Circuit

636 F.3d 1049

84 Fed. R. Evid. Serv. 1014

Thomas DUNN; Thelma Dunn, Appellants,

v.NEXGRILL INDUSTRIES, INC., Appellee.

No. 09–2722.

United States Court of Appeals, Eighth Circuit.

Submitted: April 12, 2010.Filed: Feb. 25, 2011.

Bradley R. Hansmann, argued, St. Louis, MO, Russell F. Watters, Patrick A. Bousquet, on the brief, St. Louis, MO, for appellant.Timothy C. Sansone, argued, St. Louis, MO, Peter von Gontard, on the brief, St. Louis, MO, for appellee.Before WOLLMAN, HANSEN, and MURPHY, Circuit Judges.HANSEN, Circuit Judge.

Following a fire at the residence of Thomas and Thelma Dunn (the Dunns), the Dunns filed a complaint against Nexgrill Industries, Inc. (Nexgrill), the manufacturer of the propane fired gas grill they used on the night of the fire, claiming that the fire was caused by a design defect in the cabinet of the grill which allowed a rubber regulator hose to come in contact with a heated grease tray, then to melt and become breached, thereby allowing propane vapors to escape and become ignited by the grill's burners. As part of their case, the Dunns wanted to establish that the grill was defective by presenting the expert testimony of Randy Bicknese, including evidence of certain tests he had performed. Nexgrill filed a motion to bar the testimony and opinions of Bicknese (Bicknese evidence), which the district court granted. Nexgrill then filed a motion for summary judgment, which the district court also granted. The Dunns appeal, arguing that the district court abused its discretion in excluding the expert testimony of Bicknese and erred in granting the motion for summary judgment. After a careful review of the record, we affirm the district court's judgment.

I.

In May 2006, the Dunns purchased a new Jenn–Air gas grill (the grill) that was designed, manufactured, and sold by Nexgrill. The grill produces heat for cooking by the combustion of propane vapors. A portable replaceable cylinder shaped tank located in the bottom of the grill cabinet stores liquid propane under pressure until the propane is delivered to the grill's manifold through a regulator and hose assembly. The propane tank is equipped with a pressure relief valve which allows propane to be released in substantial quantity from the tank when the tank's internal pressure rises to the point where the tank might explode. In normal operation, propane vapors are delivered to the three main burners via control valves located on the front panel. A heat shield is located above the propane tank to protect the tank from the heat emanating during normal cooking from the bottom of the burners and from the grease tray located underneath the burners.

On the evening of August 24, 2006, Mrs. Dunn used the grill to cook dinner for herself, her husband, their daughter, and their granddaughter. She testified that she started the grill around 6:45 p.m. that evening, stopped grilling around 7:00 p.m., and at that time turned the burner control knobs to the “off” position on the grill. Mrs. Dunn then testified that her daughter and granddaughter left at approximately 8:30 that evening and the Dunns went to bed at approximately 8:45 p.m. She then awoke to “glass popping and breaking and trees popping and cracking” and “a big ball of orange.” (J.A. at 493.) Mrs. Dunn then called 911 and escaped their home. The record indicates that the fire alarm was activated at 9:42 p.m.

Following the fire, Richard Hewitt, a senior investigator from Grinnell Mutual Reinsurance Company (Grinnell), the Dunns' insurer, carried out an initial investigation of the fire on August 28, 2006. Hewitt examined the fire scene a second time on October 3, 2006, and was accompanied by Dr. Lloyd Brown, an electrical engineer retained by Grinnell; Alan Dudden, an engineer from Nexgrill; Randy Bicknese, of Schaeffer Engineering, Inc., a mechanical engineer retained by the propane cylinder's supplier; and Gary Railing, an insurance adjustor.

According to Hewitt's report, at the time of the fire, the grill had been located on a deck near the exterior west wall of the Dunns' home. There was no fire, heat, or smoke damage on the exterior south, east, and north sides of the home. The exterior west side, however, “received a severe amount of fire and heat damage.” (J.A. at 315.) Hewitt reported that the other heat producing devices located on the outside of the home and in the garage, basement, and kitchen/dining area were eliminated as possible causes of the fire. In his report, Hewitt stated that “[t]he burn patterns exhibited to the grill, structure, and deck along with the fire movement and intensity patterns all indicate that the fire originated in the bottom cabinet located beneath the burners of the grill” and concluded that “[t]he fire was most probably caused from fugitive [liquid propane] gas escaping from the grill[']s fuel delivery system located in the lower or bottom cabinet of the grill.” ( Id. at 316.) Brown agreed with Hewitt's conclusion that the fire originated from inside the grill.

During the October 3 investigation, Bicknese observed that all of the grill's burner control valves were in the off position, the propane tank was empty, and the tank had a pressure relief valve. Bicknese theorized that the pressure relief valve was triggered during the fire and released a substantial amount of propane gas, which contributed to the magnitude of fire damage to the exterior west wall of the home and its deck. Agreeing with Hewitt and Brown, Bicknese determined that the fire originated inside the lower compartment of the grill. During his observation, he hypothesized that “it [was] probable that the pressure relief valve in the cylinder's service valve operated during the fire,” and “the release of propane from the cylinder's pressure relief valve contributed to the magnitude of fire damage to the west exterior wall and wood deck of the structure.” ( Id. at 742.)

Bicknese's services were then retained by the Dunns' counsel “to perform additional analysis and testing and to render professional opinions regarding what role, if any, the Jenn–Air grill had in the cause of the fire.” ( Id. at 743.) The model of Jenn–Air grill the Dunns had used was no longer available in retail stores, so Bicknese purchased a used grill (test grill) to perform certain tests. According to Bicknese's report, the test grill's original owner stated that “the [test] grill was in its original configuration and no repairs had been made, other than normal cleaning, since it was purchased.” ( Id.) Bicknese stated in his affidavit that the testing was done

to establish certain scientific principles: (1) to determine whether or not the propane hose can deteriorate sufficiently to leak when in contact with the grease tray during grill operation; (2) to determine if propane leaking from the deteriorated hose can be ignited by the operating burner; (3) to determine if a propane hose fire in the cabinet can be sustained after the burner controls are turned off; (4) to determine if a propane hose fire in the cabinet is readily detectable from outside the grill with the grill lid open and the cabinet door closed; (5) to document the operating characteristics of the grill's propane distributing system; (6) to determine the consumption rate of the propane hose as a result of the ignited leak.

( Id. at 737.)

While installing a propane tank in the test grill's cabinet (in the position indicated on the sliding tray that supports the tank located in the very bottom of the grill), Bicknese observed that on the test grill, the propane hose between the regulator and the manifold that connects the two devices could come into contact with the grease tray as the propane tank was pushed into its stowed position within the grill cabinet, and that the grill had no retainer clip or other device to prevent the hose from coming into contact with the grease tray. He attributed the hose's tendency to ride up and touch the grease tray to a “slight curl” in the hose that occurred when the regulator, to which the hose is attached, was attached to the tank. He fired up the burners and measured the temperature of the grease tray (located beneath the burners but above the propane tank, regulator, and hoses). He observed some melting of the regulator's hose where it was touching the grease tray. Based on safety concerns, Bicknese then removed the propane tank from the grill, leaving the regulator and its hose assembly in the cabinet. He attached an extension hose between the removed propane tank and the regulator's intake connector and then intentionally placed the hose connecting the regulator with the manifold up against the grease tray by using a nylon tie-down to secure the hose to an existing metal horizontal “barrier bar” located within the cabinet. Bicknese explained that because he had removed the propane tank, he secured the propane hose to the horizontal bar barrier at a location consistent with where it would have been if the propane regulator were attached to a properly oriented and stowed propane tank and that the propane hose as secured by the tie-down was in a position consistent with where it would naturally come into contact with the grease tray as a result of sliding the propane tank to the indicated stowed position within the grill cabinet.

During his testing, Bicknese determined that the grease tray could reach temperatures sufficient to melt and breach the propane hose while food was being cooked on the grill. When the hose was breached while in contact with the grease tray, the operating burners ignited the escaping propane, starting a fire. According to Bicknese's report, “[t]he fire that existed at the location of the hose breach within the cabinet was not readily detectable from the exterior of the grill with the cabinet door closed” and the “fire continued until the service valve of the propane tank was closed.” ( Id. at 743.) He reported that it took approximately 20 minutes for the fire to...