Hickerson v. Pride Mobility Products Corp.

• Decision Date: 13 December 2006
• Docket Number: No. 06-1647.,06-1647.
• Parties: Henry HICKERSON, Plaintiff-Appellant, v. PRIDE MOBILITY PRODUCTS CORPORATION; The Scooter Store-Kansas City, L.L.C., Defendants-Appellees.
• Court: U.S. Court of Appeals — Eighth Circuit

470 F.3d 1252

Henry HICKERSON, Plaintiff-Appellant, v. PRIDE MOBILITY PRODUCTS CORPORATION; The Scooter Store-Kansas City, L.L.C., Defendants-Appellees.

No. 06-1647.

United States Court of Appeals, Eighth Circuit.

Submitted: September 28, 2006.

Filed: December 13, 2006.

Paul Paxton Hasty, Jr., Wallace & Saunders, Kansas City, MO, for Plaintiff-Appellant.

Douglas M. Greenwald, Charles A. Getto, McAnany & Van Cleave, Kansas City, KS, for Defendants-Appellees.

Before, ARNOLD, BYE, and MELLOY, Circuit Judges.

MELLOY, Circuit Judge.

Plaintiff Henry Hickerson lost his wife and home in a fire. He sued Defendants alleging a motorized wheelchair or scooter they manufactured and sold to him, a Pride Jet 3 Power Chair ("PowerChair"), was defective and caused the fire. Mr. Hickerson designated a fire causation expert witness who offered an opinion regarding the location of the point of origin of the fire and identified the PowerChair as a possible cause of the fire. The expert based these conclusions on burn patterns and damage and on the facts that the remains of the PowerChair were sitting at the center of the area of origin and that no other appliance in the area of origin contained batteries or was connected to an external power source at the time of the fire. Defendants moved to exclude Mr. Hickerson's expert witness on the basis that he was not an expert in the engineering or manufacturing of motorized chairs or scooters and was therefore unqualified to identify a specific defect in the PowerChair. Defendants also moved for summary judgment. The district court granted in part and denied in part Defendants' motion to exclude the expert witness and granted Defendants' motion for summary judgment. We reverse and remand.

I. Background

The fire consumed Mr. Hickerson's home in the early morning hours of October 22, 2003. Mr. Hickerson escaped from the house, but his wife did not. That same day, two investigators from the office of the State Fire Marshal examined the site and interviewed the firefighters and other people at the scene. David Owens, one of the State's investigators, found the remnants of the PowerChair in an area of a living room that he identified as the area of the most intense heat and a likely point of origin for the fire. He examined the PowerChair and found that a battery cable had shorted to the metal of the chair. He could not determine whether the shorted cable was a cause or a result of the fire. He also identified the remains of a tower-type space heater near the remains of the PowerChair and identified shorted wires in the home's electric system. Again, he could not determine if the shorted wires were a cause or a result of the fire. Mr. Owens ultimately concluded that an electrical engineer should examine the PowerChair. He also concluded that the cause of the fire could not be determined due to the amount of damage to the scene.

Mr. Hickerson's insurance company hired a consulting firm to investigate the fire. The investigator from the consulting firm was William L. Schoffstall, and Mr. Hickerson designated Mr. Schoffstall as an expert witness regarding fire origin and causation. Mr. Schoffstall was an experienced firefighter and a certified and experienced fire scene investigator. Mr. Schoffstall arrived at the site of the remains of the Hickerson home on October 23, 2003, the day after the fire. When he arrived, family members were already sorting through the remains and were in the process of removing items from the scene.¹ The family members complied with a request to exit the fire scene until after the investigation was complete.

In a written report, Mr. Schoffstall described his examination of the interior and exterior of the home. He eliminated various rooms as possible locations for the origin of the fire based on observations of the relative degrees of damage, the pattern and direction of damage, and the type of damage, i.e., fire, smoke, or heat. He noted an oval burn pattern in an area of the living room that he identified as the area of the highest heat and the likely point of origin of the fire (the same area identified by State Fire Marshal investigator David Owens). Mr. Schoffstall also noted that Mr. Hickerson had said the area of the oval burn pattern was the area from which he noticed high heat as he escaped from the house. Mr. Hickerson commented only as to heat because he could not see through the smoke when escaping the home.

Mr. Schoffstall found no signs of faulting with the home's circuit breaker box, but noted that some of the breakers appeared to have been "tampered with" after the fire. Having found no signs of faulting, he eliminated the breaker box as a possible point of origin or cause. He also examined the furnace, the washer and dryer, the oven/stove unit, the dishwasher, and some of the house's wiring. He found no signs of faulting and eliminated these items as possible causes. He did note fire damage to some of the house's wiring, but observed no evidence that the wiring was a cause or point of origin for the fire. There is no suggestion that the damaged wiring ran through the area of the oval burn pattern.

Mr. Schoffstall examined and sifted through ashes and debris at the point of origin and identified the remains of the PowerChair. Mr. Schoffstall found and preserved as evidence several parts of the PowerChair including wires, battery parts, parts of the seat, the base of the PowerChair, and an item identified possibly as the charger. He examined the wiring of the PowerChair and determined that it showed signs of faulting.

In the written report, Mr. Schoffstall concluded as follows:

In the professional judgment of this investigator, this fire is classified as undetermined. The fire was found to have started in the living room area near the west end of the structure. The only source of ignition in this area was the scooter and with the damage found to the wires of the unit, it could not be ruled out as the source of the fire.

In an affidavit that he prepared later, Mr. Schoffstall further stated:

5. The only items found in the area of origin were the remnants of Plaintiff's scooter, including: the base of the scooter, batteries and possible charger, parts of the seat, and some wiring.

6. That [sic] the remnants of Plaintiff's scooter, identified in Statement No. 5, were the only possible sources of ignition found in the area of origin. All of the items found in the area of origin, identified in Statement No. 5, were preserved for investigation and available to Defendants for inspection.

At the time of the fire, the PowerChair was approximately six months old. Mr. Hickerson and his wife had purchased the PowerChair new from Defendant The Scooter Store-Kansas City LLC. Defendant Pride Mobility Products Corporation had manufactured the PowerChair. Mr. Hickerson stated in a deposition that the space heater identified by David Owens was not attached to a power source at the time of the fire. It is undisputed that the space heater contained no batteries or other independent, on-board power source. Mr. Hickerson stated in an affidavit that he had placed insulation in the crawlspace under his home, observed the floor joists, and observed that no wiring ran through the floor at the alleged area of origin.

Defendants' experts were Francis Burns, a fire investigator, and Thomas J. Bazjek, an electrical engineer. These experts were not afforded an opportunity to examine the fire scene, as Defendants did not receive notice of the fire until after cleanup had occurred at the site. The preserved remains of the PowerChair were available for inspection by Defendants at a firm in Tennessee, Diversified Product Inspections, Inc., and, in fact, Mr. Bazjek participated in a group examination of the remains. Mr. Burns and Mr. Bajzek also examined the photographs of the fire scene taken by Mr. Schoffstall, discovery materials related to the litigation, and official reports from the State Fire Marshal and the local fire department.

Mr. Bazjek stated that when he examined the PowerChair remains, the battery cable was no longer fused to the frame of the chair, as described by the State Fire Marshal. However, there was evidence of electrical activity at the corresponding location of the cable. He also determined that certain pieces of debris collected by Mr. Schoffstall were not part of the PowerChair, but rather, were an electric plate and electric heating element "consistent with the type found in portable space heaters." Mr. Bazjek ultimately concluded that there was "no evidence of a defect or failure in any component [of the] PowerChair that could have caused the fire." He further stated that the damage to the PowerChair was consistent with "attack by an external fire," and he could not rule out two floor lamps, a table lamp, a heating pad, a television, or a VCR (all purportedly in the living room), or the house's wiring as possible sources of the fire.

Expert Francis Burns concluded that nothing from the group examination of the remains of the PowerChair indicated that the PowerChair was a cause rather than a victim of the fire. Like Mr. Bajzek, he identified additional "energized" appliances in the living room, including the two floor lamps, the table lamp, the television and VCR, and the heating pad. In addition, he noted that Mr. Hickerson was a smoker and had been smoking in the house on the night of the fire. There was no suggestion that Mr. Hickerson had been smoking in the area identified as the origin of the fire, and Mr. Hickerson stated in his deposition that he had not smoked in the room of origin on the night of the fire. There was also no suggestion that any appliances or devices other than the PowerChair and the space heater were located in the area of the living room identified as the origin of the fire.

Defendants moved to exclude Mr. Schoffstall's testimony and moved for summary judgment. The district court granted in part the ...