Scottsdale Ins. Co. v. Deere & Co.

Decision Date14 July 2015
Docket NumberCase No. 14–1183–JTM.
Citation115 F.Supp.3d 1298
Parties SCOTTSDALE INSURANCE CO., A/S/O Chris Chereny and Karly Chereny, Plaintiff, v. DEERE & COMPANY, Defendant.
CourtU.S. District Court — District of Kansas

Chad Michael Neuens, Neuens Mitchell PLLC, Tulsa, OK, Derek S. Casey, Triplett, Woolf & Garretson, LLC, Wichita, KS, for Plaintiff.

Emily R. Davis, Lathrop & Gage, LLP, Overland Park, KS, Peter F. Daniel, Lathrop & Gage, LLP, Kansas City, MO, for Defendant.

MEMORANDUM AND ORDER

J. THOMAS MARTEN, Chief Judge.

This case arises out of a fire that destroyed a combine manufactured by defendant Deere & Company ("Deere") and insured by plaintiff Scottsdale Insurance Co. ("Scottsdale"). Scottsdale, as subrogee of the insured combine owners, brought this action for breach of express warranty and breach of implied warranty of merchantability, alleging that a defect in the combine's Emissions Control System ("ECS") caused the fire. This matter is before the court on Deere's motion for summary judgment (Dkt. 49). Deere seeks summary judgment on Scottsdale's express and implied warranty claims, and further seeks exclusion of expert testimony by Raymond Thompson. As discussed below, the motion is granted in part and denied in part.

I. Uncontroverted Facts
A. Background Facts

Chris and Karly Chereny ("the insureds") operate a custom harvesting business.

They have a combined 55 years of experience operating harvesting machines. On March 25, 2013, the insureds purchased two used 2012 model year John Deere S670 combines from a Kansas John Deere dealer. The dealer informed the insureds that the combines came with a warranty. They received a copy of the front page of their purchase order, which includes a section of text stating in all capital letters that the purchase excludes an implied warranty of merchantability.

The insureds allege they never received a copy of the Deere express warranty regarding the combines. Deere's standard express warranty ("the Deere warranty") states that it will repair or replace any covered part that is found to be defective in material or workmanship during the warranty term. The Deere warranty covers the combine's non-wear1 components for a 12–month period from the date of purchase.

B. The S670 Emissions Control System

The S670 combine's ECS removes particulate matter from its engine exhaust. The system employs sensors and oxidizers, monitored and controlled by a computer, and a two-phase physical filtration system within the combine's exhaust system. Exhaust gas passes through the Diesel Oxidation Catalyst ("DOC"), which reduces carbon monoxide, hydrocarbons, and some particulate matter. Downstream of the DOC, exhaust gas is forced through porous channel walls of a Diesel Particulate Filter ("DPF"), trapping particulate matter therein. Particulate matter trapped in the DPF is oxidized through a continuous cleaning process called Passive Regeneration. Passive Regeneration does not create more heat than normal engine operations.

A computer controlling the ECS supplements Passive Regeneration with an automated Active Regeneration process on an as-needed basis. The need for Active Regeneration is determined through an analysis of exhaust temperature and pressure data collected by sensors. The computer alerts the driver that Active Regeneration is required. The operator can, under some circumstances, override the computer to delay the Active Regeneration process through the combine's Touch Screen Display. If the operator continues to override the Active Regeneration process, the computer will eventually force a Parked Regeneration process if it senses that the DPF is incapable of performing its function on a passive or automatic basis. Once the computer forces a Parked Regeneration, it limits the engine's output such that the combine is incapable of conducting harvesting functions.

C. The Combine Fire

During harvest operations on June 2, 2013, a fire occurred on or in one of the combines, destroying it. Mrs. Chereny was driving behind the combine at the time. She testifies that she observed flames shooting from the combine's exhaust before it caught fire.

II. Expert Opinion Testimony

Scottsdale proffers the testimony of Raymond Thompson in the form of expert opinion testimony under FED.R.EVID. 702. Deere argues that Thompson's opinion testimony should be excluded because his report violates the disclosure requirements of Rule 26, or, alternatively, that Thompson is not qualified to testify as to alleged defects in the combine's emissions system. As explained below, Thompson is qualified to testify about the origin of the fire, but not about a defect in the combine.

A. Portions of Thompson's testimony are inadmissible under F.R.E. 702.

The judge must determine at the outset whether the expert testimony is admissible pursuant to FED.R.EVID. 104(a) ; Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579, 592, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993). " Federal Rule of Evidence 702 requires a district court to assess proffered expert testimony to ensure it is both relevant and reliable." United States v. Avitia–Guillen, 680 F.3d 1253, 1256 (10th Cir.2012). The court must determine whether the expert is qualified to testify, then "whether the opinion is reliable by assessing the underlying reasoning and methodology." United States v. Nacchio, 555 F.3d 1234, 1241 (10th Cir.2009) (en banc); see FED.R.EVID. 702.

1. Thompson's qualifications

"A witness who is qualified as an expert by knowledge, skill, experience, training, or education may testify in the form of an opinion...." FED.R.EVID. 702. An expert must testify within the reasonable confines of his subject area. Ralston v. Smith & Nephew Richards, Inc., 275 F.3d 965 (10th Cir.2001). A lack of specialization does not affect the admissibility of an expert's opinion, only its weight. Id.; see also Ho v. Michelin N. Am., Inc., 520 Fed.Appx. 658, 665 (10th Cir.2013) (unreported) (citing Ralston, 275 F.3d at 970 ) (affirming district court's rejection of expert testimony regarding defective tire design based on generalized experience as a tire failure investigator).

Thompson is a certified fire and explosion investigator and vehicle fire investigator. He previously worked as an automotive technician in a Volvo dealership. Thompson has been employed at ProNet, an engineering forensic company, for ten years. (Dkt. 50–8, at 3). Thompson's training and experience qualify him to provide opinion testimony about the origin of the fire.

However, Thompson's area of expertise does not extend to complex diesel emissions control systems. Although he previously worked as an automotive technician, he did not work on DPF systems, combines, or with software systems similar to that used to control the S670's emissions and regeneration systems. Thompson is not an engineer and does not otherwise have training, education, or experience in designing or analyzing computer controlled turbo-diesel emissions systems utilizing DPFs. His specialized fire investigation training does not pertain to engine and emissions management software or hardware. Accordingly, Thompson's testimony is admissible only as to the origin of the fire, not whether a system or component failed or contained a defect in materials or workmanship.

2. Thompson's methods

An expert's opinion testimony must be based on sufficient facts or data and must be the product of reliable principles and methods applied to the facts of the case in a reliable manner. FED.R.EVID. 702. Experience and knowledge as a fire investigator may qualify one to deduce the likely source of a fire based on observation of physical evidence. See Bitler v. A.O. Smith Corp., 400 F.3d 1227 (10th Cir.2004) (fire investigator offered expert testimony identifying a water heater as the source of an explosion accident; an engineer expert testified as to the particular defect in the water heater that caused the explosion).

Here, Thompson's opinion is based on his examination of the combine, his review of photographs of the combine, and interviews with the Cherenys. (Dkt. 55, at 228; Dkt. 50–9, at 1–2). He observed burn patterns and the extent of fire damage on the combine and determined that the fire began between the engine and the DPF. (Dkt. 55, at 241). Such methods, employed by a fire investigation expert, are sufficiently reliable for determining the fire's point of origin.

Accordingly, Thompson's testimony is admissible as to his opinion that the fire originated near the DPF. (Dkt. 50–9, at 2).

B. Thompson's expert report violates Rule 26(a)(2).

An expert witness who is retained or specially employed to provide expert testimony must provide a written report as part of Rule 26(a) initial disclosures. FED.R.CIV.P. 26(a)(2)(B). Such report must include:

(i) a complete statement of all opinions the witness will express and the basis and reasons for them; (ii) the facts or data considered by the witness in forming them; (iii) any exhibits that will be used to summarize or support them; (iv) the witness's qualifications, including a list of all publications authored in the previous 10 years; (v) a list of other cases in which, during the previous 4 years, the witness testified as an expert at trial or by deposition; and (vi) a statement of the compensation to be paid for the study and testimony of the case.

FED.R.CIV.P. 26(a)(2)(B).

Thompson's report states his opinion that the fire "originated near the particulate filter." (Dkt. 50–9, at 2). His reasoning is based on observations of the fire damage. Id. However, his reasoning is not well explained; the report merely refers to the recorded observations as its reasoning without explaining what about the observations led Thompson to conclude that the fire originated near the DPF.

According to the report, the only facts or data considered are Thompson's observations. Those observations are reported in four bullet points, noting only: (1) severe fire damage; (2) that two wheels were consumed and the remaining two wheels were...

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