Elosu v. Middlefork Ranch Inc.

• Court: U.S. Court of Appeals — Ninth Circuit
• Writing for the Court: BENNETT, District Judge
• Citation: Elosu v. Middlefork Ranch Inc., 26 F.4th 1017 (9th Cir. 2022)
• Decision Date: 23 February 2022
• Docket Number: No. 21-35309,21-35309
• Parties: Maria Fernanda ELOSU, Individual; Robert Louis Brace, Plaintiffs-Appellants, v. MIDDLEFORK RANCH INCORPORATED, an Idaho Corporation, Defendant-Appellee.

26 F.4th 1017

Maria Fernanda ELOSU, Individual; Robert Louis Brace, Plaintiffs-Appellants,

v.MIDDLEFORK RANCH INCORPORATED, an Idaho Corporation, Defendant-Appellee.

No. 21-35309

United States Court of Appeals, Ninth Circuit.

Argued and Submitted December 8, 2021 Pasadena, California

Filed February 23, 2022

Patrick C. Bageant (argued), Hollystone Law, Boise, Idaho, for Plaintiffs-Appellants.

Gerald Kobluk (argued), KSB Litigation P.S., Spokane, Washington, for Defendant-Appellee.

Before: Carlos T. Bea and Kenneth K. Lee, Circuit Judges, and Richard D. Bennett,^* District Judge.

BENNETT, District Judge:

On July 20, 2017, a fire swept through a cabin in the Idaho wilderness. Nobody was at home, and neither residents, neighbors, nor first responders saw the cabin catch fire. Appellants Maria Elosu and Robert Brace contend that the fire was caused by a negligent employee of Appellee Middlefork Ranch, Inc. ("Middlefork"), the homeowners' association which governs the cabin. Their case rises and falls on an expert report prepared by fire investigator Michael Koster, who hypothesized that an open-flame pilot light on the northern end of the cabin ignited combustible vapors from an excessive oil stain that had been applied to the wooden deck the previous day—sparking a fast-moving conflagration that swept across the deck and burned the entire structure to the ground.

This appeal arises from an order of the United States District Court for the District of Idaho excluding Koster's testimony—and precluding Appellants' case on the critical element of causation, the sole triable issue that remained in this litigation. The district court did not hold that Koster's methodology was unreliable or that he was not qualified to render an expert opinion in the field of fire investigation. Indeed, the parties stipulated to his qualifications and methodology.¹ Instead, the court took issue with Koster's "ultimate conclusions," finding that the substance of his opinion was speculative, uncertain, and contradicted by multiple eyewitness accounts.

District courts have a longstanding responsibility to screen expert testimony, and to prevent unfounded or unreliable opinions from contaminating a jury trial. See generally Daubert v. Merrell Dow Pharm., Inc. , 509 U.S. 579, 586, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993). However, this Court has cautioned that the district court is "a gatekeeper, not a fact finder." Primiano v. Cook , 598 F.3d 558, 568 (9th Cir. 2010) (quoting United States v. Sandoval-Mendoza , 472 F.3d 645, 654 (9th Cir. 2006) ). Although a district court may screen an expert opinion for reliability, and may reject testimony that is wholly speculative, it may not weigh the expert's conclusions or assume a factfinding role. We are compelled to find that the district court assumed such a role in this case. In the plain text of its opinion, the district court took issue only with Koster's "ultimate conclusions." In its findings, the court disregarded much of the expert's scientific analysis, weighed the evidence on record, and demanded corroboration—factfinding steps that exceed the court's gatekeeping role. Accordingly, we reverse the judgment of the district court and remand for further proceedings consistent with this opinion.

BACKGROUND

Maria Elosu and Robert Brace, husband and wife, were the owners and seasonal residents of Cabin 16, a luxury vacation cabin located in the remote Valley County, Idaho, and governed by Middlefork Ranch, Inc. Cabin 16 was a flat, one-story building with a 500-square-foot wooden deck that wrapped around the north, east, and south sides of the structure. The northern end of the deck featured a propane-fueled refrigerator atop an open-flame pilot light, with a propane supply provided and managed by Middlefork. The east side of the deck held various items of wooden furniture—an old sofa, a teak picnic table, and benches.²

On the day before the fire, Brace power-washed and stained the deck with Penofin-brand oil. Penofin oil is highly flammable: Penofin oil cans come with detailed disposal instructions and a warning label that specifically alerts the user to the potential for "spontaneous combustion." Appellants' chemical expert Douglas Byron concluded in his report that Penofin oil is approximately as incendiary as charcoal starter fluid—with a higher density than air and a tendency to self-heat. When properly applied, Penofin oil becomes dry to the touch after four hours, "serviceable" after twelve, and fully cured after four to seven days. Based on the application instructions, which dictate that one gallon should be used for every 300 square feet of application, a 500-square-foot deck should be treated with approximately one-and-a-half gallons of Penofin oil. Both parties acknowledge that Brace applied as much as two-and-a-half gallons that day.

On July 20, 2017, Appellant Brace left Cabin 16 prior to 8:00 a.m. He claims that he noticed sticky spots on the wooden deck where the Penofin oil had failed to dry. Brace provided rags for Elosu and their child to clean the deck, instructing them to dispose of them in the fire pit.³ Elosu allegedly found the deck too sticky to clean. Thereafter, the parties concur that a Middlefork employee visited Cabin 16 to check the propane levels, determined that the propane was out or low, and elected to refill the propane and reignite the pilot light. The parties also acknowledge that this employee confirmed that the deck below the refrigerator was dry before he lit the pilot light. Appellants further claim that the deck remained sticky with oil, that "[Middlefork's] employee was standing in wet oil next to the refrigerator" when he lit the flame, and that Elosu expressed concern that the oil could ignite.

Around 4:00 p.m., while Elosu and her child were away, Cabin 16 caught fire. The first people to notice the fire were a group of contractors working on a neighboring cabin, including Kenny Pyle, Regee Rauch, and Greg Gamez. These contractors did not see the fire ignite and arrived well after the conflagration had spread. When they arrived, the eastern deck was filled with flames, localized specifically near the southeast corner. Rauch ran onto the north deck to bang on the windows and draw the attention of anyone inside. Pyle attempted to extinguish the fire with a garden hose, but retreated when the fire spread and engulfed the entire structure. The cabin burned to the ground and was "a complete and total loss."

Each party's insurance company conducted initial examinations of the scene: Appellants' insurer sent Shane Hargrove four days after the fire, while Middlefork's insurer sent Glen Johnson two months later. Hargrove and Johnson each investigated the scene individually, before conducting joint interviews of the eyewitnesses, each of whom confirmed that there had not been a fire on the north-facing deck when they arrived.⁴ Johnson concluded that the fire had originated on the southeast deck, and that it could have been caused by discarded oil-soaked rags or a mop head. But Johnson had no direct evidence of his theory, Hargrove characterized the fire site as a "black hole," and neither could offer an opinion about the specific "source of ignition" that rose to the level of "more probable than not."

Elosu and Brace retained three additional experts to examine the fire site: Michael Koster, a fire investigator, Richard Mumper, a mechanical engineer, and Douglas Byron, a chemist. Mumper evaluated the remains of the cabin and confirmed that there was no evidence of a mechanical breakdown or another point of ignition. Byron conducted a chemical analysis of Penofin oil in light of the weather conditions on the day of the fire, and confirmed that the Xylene vapors released by evaporating Penofin could cause an explosion upon contact with an open flame. He also determined that there was "no evidence or indication of spontaneous combustion," as witnesses had not smelled an acrid odor, and video taken of the fire did not display the off-white smoke characteristic of this phenomenon.

Michael Koster, a fire investigator employed by Reliant Investigations, Inc., was the only expert to offer a specific theory as to the cause and origin of the fire.⁵ Koster personally examined the remains of Cabin 16 on May 27, 2018, evaluating the cabin's wiring, structure, insulation, and propane system to rule out external issues.⁶ He retrieved several five-gallon buckets of Penofin oil from a shed on the property—one of which was half empty. He compared the scene on the ground to photos of the cabin taken before the fire to calculate "mass loss," flame length, and rates of exposure—concluding that the north end of the cabin had seen "the most significant amount of mass loss." He also spoke with Brace to confirm his story of events, and reviewed tapes of witness interviews from the previous investigations.

Koster reported his findings on January 10, 2020. In this report, Koster reviewed literature on volatile liquids and lumber fires, and applied professional standards governing fire and explosion investigations, see National Fire Protection Association, NFPA 921: Guide for Fire and Explosion Investigations (2017 ed.) ("NFPA 921"), to conclude that Cabin 16 had likely been destroyed by a fast-moving vapor fire that was ignited by the refrigerator pilot light. His hypothesis was that the excess Penofin oil Brace applied to the deck had pooled beneath the floorboards, evaporated during the heat of the following day, and ignited upon encountering the open flame. The resulting conflagration had swept through the deck, ignited the oil stains and the furniture, and eventually consumed the entire cabin.

Koster reviewed Johnson's report, and opined that it had failed to comply with the NFPA 921 standards. Koster challenged Johnson's conclusion that the fire was caused by discarded rags or a mop head, as "no remnants of cotton fiber materials or rags were found ... within his suspected area of...