Presley v. Lakewood Engineering and Mfg. Co., 07-3846.

• Decision Date: 21 January 2009
• Docket Number: No. 07-3846.,07-3846.
• Citation: 553 F.3d 638
• Parties: Jeannine PRESLEY, Individually and as Personal Representative of the Estate of George Presley, Deceased; Shelter Insurance Company, as Subrogee of Jeannine Presley and George Presley, Appellants, v. LAKEWOOD ENGINEERING AND MANUFACTURING COMPANY, Appellee.
• Court: U.S. Court of Appeals — Eighth Circuit

553 F.3d 638

Jeannine PRESLEY, Individually and as Personal Representative of the Estate of George Presley, Deceased; Shelter Insurance Company, as Subrogee of Jeannine Presley and George Presley, Appellants, v. LAKEWOOD ENGINEERING AND MANUFACTURING COMPANY, Appellee.

No. 07-3846.

United States Court of Appeals, Eighth Circuit.

Submitted: September 22, 2008.

Filed: January 21, 2009.

David Odell Kemp, argued, Dallas, TX, for Appellants.

James W. Ozog, argued, Chicago, IL, Jennifer J. Karpinski and Ryan M. Frierott, Chicago, IL, and J. Carter Fariley, Little Rock, AR, on the brief, for Appellee.

Before RILEY, HANSEN, and MELLOY, Circuit Judges.

RILEY, Circuit Judge.

Jeannine Presley (Jeannine), individually and as the personal representative of her late husband George Presley (George), and Shelter Insurance Company (Shelter) (collectively, plaintiffs) sued Lakewood Engineering and Manufacturing Company (Lakewood) on theories of negligence, breach of warranty, and strict products liability. Plaintiffs alleged a space heater manufactured by Lakewood (Lakewood heater) caused a fire in the Presleys' home which resulted in property damage and personal injury. Upon motion by Lakewood, the district court¹ excluded the testimony of plaintiffs' causation expert, Raymond D. Arms (Arms), and granted Lakewood's motion for summary judgment. We affirm.

I. BACKGROUND

Because we review de novo the evidence and testimony involved in a motion for summary judgment in the light most favorable to the non-moving party, we cast the facts and reasonable inferences of this case in the light most favorable to plaintiffs.² See Hickerson v. Pride Mobility Prods. Corp., 470 F.3d 1252, 1256 (8th Cir.2006).

A. The Fire

On the night of January 30, 2004, Jeannine was reading and George was watching television in the den of their house. Near George's chair was the Lakewood heater, an oil-filled space heater, model 7096, manufactured by Lakewood in 1998. George regularly used the Lakewood heater to warm his feet while sitting in his den chair. According to plaintiffs' expert Martin Gallaher (Gallaher), George said he used the Lakewood heater on the night of January 30, 2004. Around 10 o'clock, Jeannine went to bed. George remained in the den watching television, and went to bed around midnight. According to Gallaher, in a June 20, 2005 letter to plaintiffs' counsel (Gallaher letter), George said it was possible he left the Lakewood heater on that night.

At around 3 o'clock, Jeannine arose to use the restroom and did not notice anything unusual in the house. At approximately 6 o'clock, Jeannine again awoke to use the restroom and, as she exited her bedroom, was engulfed in smoke. Jeannine immediately woke up George, and George ran to the den to investigate the fire. Jeannine saw fire coming from the kitchen of the house, called 911, and exited the house. George remained in the house.

The Fayetteville Fire Department responded to Jeannine's call and rescued George from the house. By that time, the fire had spread throughout the house. Jeannine and George were taken to the hospital where both were treated for smoke inhalation. Jeannine remained in the hospital for three days, and George was released from the hospital thirteen days after the fire. The Presleys' home experienced extensive damage from the fire.

B. Fire Investigation

After the fire, two fire inspectors from the Fayetteville Fire Department, Kyle Curry (Inspector Curry) and Dennis Ledbetter (Inspector Ledbetter), examined the Presleys' home and gathered evidence from the scene. In an attempt to identify the origin and cause of the fire, Inspector Curry and Inspector Ledbetter examined the burn and damage patterns on the interior and exterior of the home. The inspectors also gathered several items from around George's chair for examination by an electrical engineer. The items collected included the Lakewood heater, a carbon monoxide detector, several pieces of wiring, a floor lamp, candle remnants, and chair remnants. The inspectors also investigated possible electrical sources of the fire, noting there was an extension cord running from the area around George's chair to an outlet on the east wall of the den into which the Lakewood heater, the floor lamp, a cordless phone, and a hand-held massager were plugged. These findings were documented in a report prepared by Inspector Curry.

After examining the fire scene, Inspector Curry and Inspector Ledbetter concluded the fire began in the den next to George's chair. However, Inspector Curry and Inspector Ledbetter could not specify an exact cause of the fire. Inspector Curry's report stated the cause of the fire was "undetermined at this time," with the evidence obtained at the scene to undergo "further evaluation."

C. Plaintiffs' Expert Arms

Plaintiffs employed Arms, a fire expert and electrical engineer, to investigate the cause of the fire and formulate a theory of fire causation. To guide his investigation and reasoning, Arms generally relied upon NFPA 921: Guide for Fire and Explosion Investigations (2001) (NFPA 921), other treatises and handbooks, the scientific method, and his knowledge of electrical engineering and related disciplines. Arms also developed his theories through his own observation and testing.

Within a few months after the fire, Arms personally observed the fire scene and the evidence collected by Inspector Curry. After observing the fire scene, Arms agreed with Inspector Curry that the fire started in the den near George's chair. Arms's observations also ruled out the cordless phone and hand-held massager as causes of the fire because these artifacts were not collected from the fire scene and were plugged into an extension cord outside the area of origin. Further, Arms's examination of the Lakewood heater identified acute damage at the double wire neutral connection which was unlike the damage to other connections in the heater.

In addition to his own observations, Arms had metallurgical testing performed on the evidence collected from the fire scene. The metallurgical testing included macrophotography, stereoscopy, SEM imagery, X-ray, and EDS analysis. Although Arms was not present for these tests, Arms reviewed the results and discovered (1) the double neutral wire connection had experienced severe corrosion from extreme heat and chlorine emitted by the heated wire insulation; (2) the double neutral wire had been improperly crimped resulting in a loose connection and production of heat; (3) the extension cord into which the Lakewood heater was plugged and the male end of the Lakewood heater power cord demonstrated burn patterns suggesting the Lakewood heater was drawing electricity at the time of the fire; and (4) the extension cord remnants collected at the scene were not the cause of the fire because they demonstrated "arc through char."

Following the metallurgical tests, Arms also analyzed flammability tests conducted by Clayton and Associates on components of an exemplar heater (C & A flammability tests). To conduct these tests, Arms was provided exemplar heaters. During the C & A flammability tests, samples of wire insulation and plastic from the exemplar heaters were suspended twelve inches above a cotton ball and subjected to a five second, 3/4 inch flame. If, after applying the flame, the component burned or ignited the cotton ball by dripping, the test was concluded. However, if initially there was no sustained combustion, the flame was applied up to three times for an additional five seconds each time. After these tests had been conducted, Arms discovered all of the components would burn to consumption after the heat from the flame was applied.

Based upon his observation and the results of the metallurgical and C & A flammability tests, Arms hypothesized a manufacturing defect in the Lakewood heater caused the fire. Arms's theory is summarized as follows:

1. George left the Lakewood heater "on" when he went to bed on January 30, 2004;

2. While the Lakewood heater was left "on," a high resistance wire connection in the control panel on the neutral double wire became hot due to a defective crimp on the connection;

3. The heat from the improperly crimped connection caused wire insulation in the heater control panel to emit flammable gases, or "off gas";

4. The released gases were then ignited through arcs created by the normal operation of the thermostat in the control panel 5. The ignited gases created a fire on the insulation of the power cord in the heater's control panel;

6. The flame on the power cord insulation ignited the insulation on a second power cord in the control panel;

7. The fire then burned up the insulation of the second power cord to the heater's switch;

8. The heater's switch ignited and spread the fire to the plastic around the heater's lifting handle above the switch;

9. The fire from the lifting handle ignited the front cover of the heater;

10. The front cover of the heater melted away from the screw affixing it to the heater, fell on the carpet in the den, and spread the fire to other combustibles in the room including the drapes, the carpet, and George's chair;

11. As the fire spread, it attacked the extension cord where the Lakewood heater was plugged in and spread the fire down the extension cord to the south wall of the den; and

12. Finally, the fire spread to the east wall of the den, and eventually to other parts of the house.

In an affidavit submitted to the district court, Arms stated he put his theory "together in pieces." Arms explained he used a "piecemeal" approach because it would be impossible to recreate the fire scene and his ignition scenario. Arms claimed the extended period of time over which the Presley fire scenario developed, and the high cost of recreating the fire scene, made it impractical to "sit down and develop a scenario where you actually heat up the wire with the resistance heating to cause gassing, to cause...