Lasek v. Vt. Vapor, Inc., 13–143.

Docket NºNo. 13–143.
Citation95 A.3d 447, 2014 VT 33
Case DateApril 11, 2014
CourtUnited States State Supreme Court of Vermont

95 A.3d 447
2014 VT 33

Johnathan LASEK

No. 13–143.

Supreme Court of Vermont.

April 11, 2014.

[95 A.3d 450]

Kaveh S. Shahi of Cleary, Shahi & Aicher, P.C., Rutland, for Plaintiff–Appellant.

Andrew B. Delaney of Martin & Associates, P.C., Barre, for Defendant–Appellee Vermont Vapor, Inc.

Allan R. Keyes of Ryan Smith & Carbine, Ltd., Rutland, for Defendant–Appellee Downing Properties, LLC.



¶ 1. Plaintiff appeals the trial court's grant of judgment as a matter of law to defendants following a three-day jury trial in this negligence case. Plaintiff claims that the trial court erred in (1) excluding the testimony of plaintiff's expert witness on causation, (2) granting defendants' motion for judgment as a matter of law, (3) excluding an eyewitness's statements to police, (4) denying plaintiff's motion for a new trial, (5) awarding all deposition costs to defendants, and (6) refusing to disqualify counsel for defendant-landlord. We affirm the trial court's decision in all respects, with the exception of the award of deposition costs.

¶ 2. This case arose following a fire that destroyed a commercial building in Rutland, Vermont in April 2010. The following facts were introduced through plaintiff's witnesses at trial. Plaintiff Johnathan Lasek leased the northern half of the building and used the space as a workshop for his house-staining business. He stored staining products and other equipment and constructed a business office in the northeastern corner of the building. The southwestern corner of the building contained a fully enclosed room that was occupied by another commercial tenant, Vermont Vapor Inc. (VVI). The remainder of the building was used by landlord Downing Properties, LLC, as storage for ATVs, motorcycles, and snowmobiles.

¶ 3. VVI used its space as a laboratory for mixing the liquid filler for electronic cigarettes. The process involved diluting liquid nicotine with glycerin and other ingredients. VVI is owned by Adam Tredwell. Adam hired his father, Warren Tredwell, to alter the room to Adam's specifications. Warren added sheetrock and other materials to create a “clean room.” He also installed an eight-inch fan

[95 A.3d 451]

on the south wall of the laboratory that vented to the outside of the building. An industrial space heater was suspended from the rafters of the warehouse, above the ceiling of the laboratory. The Tredwells connected the heater to a propane tank so that they could heat the space in the winter months. Warren was the last person in the laboratory the night before the fire.

¶ 4. The fire was reported at around 5:00 a.m. on April 7, 2010. When firefighters arrived a few minutes later, the northwest corner of the building—plaintiff's corner—had a large hole in the roof and was heavily engulfed in flames. VVI's corner was not on fire at that time.

¶ 5. Plaintiff sued VVI for negligence and strict liability, alleging that VVI had caused the fire by mishandling liquid nicotine. He also sued landlord for breach of the implied warranty of suitability for commercial use, negligence, breach of the duty to warn, and unjust enrichment. After plaintiff's presentation of his case, the trial court granted defendants' motion for judgment as a matter of law. This appeal followed.

I. Exclusion of Expert Testimony on Causation

¶ 6. Prior to trial, defendants filed a joint motion to exclude the testimony of plaintiff's fire investigator about the cause of the fire. The court did not rule on the motion at that time. Instead, it conducted a mid-trial hearing on admissibility after defendants renewed their objection. 1 The court ultimately ruled that the fire investigator could not offer his opinion regarding the cause of the fire because his opinion did not meet the standards of Vermont Rule of Evidence 702 and Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993). Plaintiff argues that this ruling was error.

¶ 7. Under Rule 702, a qualified expert witness may testify if his or her testimony “will assist the trier of fact to understand the evidence or to determine a fact in issue” and “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.” V.R.E. 702. Vermont Rule 702 is derived from Federal Rule 702, and the two provisions are substantively identical.

¶ 8. In Daubert, the U.S. Supreme Court held that Federal Rule 702 superseded the traditional test for admissibility of expert testimony set forth in Frye v. United States, 293 F. 1013, 1014 (D.C.Cir.1923). 509 U.S. at 586, 592–93, 113 S.Ct. 2786. The Daubert decision created “a flexible standard requiring only that expert testimony be both relevant and reliable to be admissible.” 985 Assocs., Ltd. v. Daewoo Elecs. Am., Inc., 2008 VT 14, ¶ 6, 183 Vt. 208, 945 A.2d 381 (citing Daubert, 509 U.S. at 588–89, 113 S.Ct. 2786). Because our rules of evidence are “essentially identical” to the federal rules, we have adopted the standards set forth in Daubert and its progeny governing admissibility of expert testimony. Id. (quotation omitted).

¶ 9. “[W]e review trial court decisions on the admissibility of expert testimony only for abuse of discretion.” Id. ¶ 9. However, we must “engage in a substantial and thorough analysis of the trial

[95 A.3d 452]

court's decision and order to ensure that the trial judge's decision was in accordance with Daubert and our applicable precedents.” USGen New Eng., Inc. v. Town of Rockingham, 2004 VT 90, ¶ 24, 177 Vt. 193, 862 A.2d 269 (quotation omitted).

¶ 10. The proffered opinion of plaintiff's fire investigator was that vapors from liquid nicotine in the lab came into contact with the pilot light of the overhead industrial space heater, causing a flash fire. During the Daubert hearing, he admitted that he was not a chemical engineer and did not know how much of any chemical was present in the VVI lab the night of the fire. He further admitted that he did not know the volume of air circulating through the lab because he did not know the size of the vent or the filter fabric that was used. When asked what methodology he used to determine how chemical vapors got out of the lab and reached the space heater overhead, he responded:

There may have been penetrations in that ceiling. With having a supposed vent in the door you're saying that you mixed the chemicals within the room, we know that. The chemicals may or may not have been being drawn out by an exhaust fan. We know that the fumes and the vapor given off from these chemicals will fill the room, come out and rise.

The court asked, “How do we know that?” The fire investigator responded that “if you look at the [material safety data] sheets ... some of those chemicals that were ... used in this process were lighter than air.” Landlord's attorney then asked how the fire investigator had calculated that the concentration of these chemicals in the air was high enough to be ignited by the pilot light from the space heater. Plaintiff's fire investigator responded that he was not an engineer, but that this was the “commonsense” approach for this type of investigation. He opined that if there were containers without lids that contained solutions of the chemicals used by VVI in the lab, the lab likely would have been saturated with fumes, and the fumes would have escaped through a hole in the ceiling or through the door, and made their way up to the space heater where they ignited. On cross-examination, he agreed that nicotine is much heavier than air and that its vapors would have gone down, not up. He thought that mixing the nicotine with other chemicals, perhaps alcohol, created a flammable vapor that reached the pilot light:

[M]y thoughts and the process through this is, [with] this being mixed with other chemicals—all the properties ... go out the window because we don't know what type of chemical this is now because we've mixed alcohol, we've mixed a couple other different chemicals with it. And they all have properties that will burn.... No, I don't know how else to explain it to you. I'm not a chemical engineer to break that all down.

¶ 11. The court excluded plaintiff's fire investigator's testimony pertaining to causation. The court explained that the fire investigator was not trained in chemistry, and did not know what chemicals were present, what their flammability or other characteristics were, or how they would interact with each other or flow through the air. The court noted that nicotine was present, but nicotine has a low flammability rating and is heavier than air. Even accepting that nicotine's properties could have been modified by a combination of other chemicals, there was no evidence of what the other chemicals were or how they would behave. The court concluded that the fire investigator could not offer his opinion regarding the cause of the fire because it did not meet the standards of Daubert and Rule 702.

[95 A.3d 453]

¶ 12. “Proposed testimony must be supported by appropriate validation— i.e., ‘good grounds,’ based on what is known.” Daubert, 509 U.S. at 590, 113 S.Ct. 2786. The trial court properly excluded the fire investigator's testimony because it was based on speculation. Although the evidence showed that VVI used nicotine and other chemicals in the course of its business, there was no evidence that these chemicals were present in the lab in a quantity sufficient to ignite a flame at a space heater above and outside of the room on the night of the fire. Furthermore, the fire investigator was unable to offer a reliable explanation of how any nicotine vapors that were present would be able to travel up to the space heater because, as he conceded, nicotine vapors are heavier than air and would therefore tend to...

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