State Farm Fire and Casualty v. Omega Flex Inc

Filing 49

OPINION AND ORDER denying the 42 motion to exclude the testimony of Dr. Kytomaa. This is a definitive ruling. The 43 motion to exclude the testimony of Dr. Wagenhofer is also denied. This is not a definitive ruling. The Court will reconsider the issue after State Farm concludes its case-in-chief at trial. Signed by Judge J. Leon Holmes on 12/12/2017. (ljb)

IN THE UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF ARKANSAS
WESTERN DIVISION
STATE FARM FIRE AND CASUALTY,
as Subrogee of Michael Crockett and Holly Crockett
v.

PLAINTIFF

No. 4:16CV00387 JLH

OMEGA FLEX, INC.

DEFENDANT
OPINION AND ORDER

State Farm Fire and Casualty has filed two motions to exclude expert testimony that the
defendant, Omega Flex, Inc., intends to offer. The first motion seeks to exclude opinion testimony
of Dr. Harri Kytomaa. The second motion seeks to exclude the testimony of Dr. Matthew
Wagenhofer.
State Farm brings this action as subrogee of Michael and Holly Crockett, whose home
suffered fire damage following a lightning strike on May 9, 2015. Omega Flex manufactured
yellow-jacketed TracPipe brand Corrugated Stainless Steel Tubing, which was installed in the
Crocketts’ home.

The complaint alleges that Omega Flex negligently designed, prepared,

manufactured and sold the TracPipe, that the product was unreasonably dangerous, and that the
defects in the product proximately caused the fire at the Crocketts’ home.
The use of expert evidence in federal court is governed by Federal Rule of Evidence 702, as
interpreted by the Supreme Court in Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579,
113 S. Ct. 2786, 125 L. Ed. 2d 469 (1993). Rule 702 states:
If scientific, technical, or other specialized knowledge will assist the trier of fact to
understand the evidence or to determine a fact in issue, a witness qualified as an
expert by knowledge, skill, experience, training, or education, may testify thereto in
the form of an opinion or otherwise, 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.

Under Rule 702, the Court must ensure that a proffered expert is qualified by his knowledge, skill,
experience, training, or education before that person may testify as an expert. Besides examining
a proffered expert’s qualifications, the Supreme Court stated in Daubert that the trial judge also has
a gatekeeping responsibility to ensure that expert evidence is both relevant and reliable before
admitting it. Daubert, 509 U.S. at 589, 113 S. Ct. at 2795; Kumho Tire Co. v. Carmichael, 526 U.S.
137, 141, 119 S. Ct. 1167, 1171, 143 L. Ed. 2d 238 (1999). Regarding relevancy, the Supreme Court
stated that Rule 702 requires the proffered expert testimony to relate to an issue in the case and also
to be sufficiently tied to the facts of the case, i.e., that the expert testimony has appropriate “fit.”
Daubert, 509 U.S. at 591, 113 S. Ct. at 2795-96; see also Lauzon v. Senco Prods., Inc., 270 F.3d
681, 694 (8th Cir. 2001). As to reliability, the Supreme Court stated that the inquiry envisioned by
Rule 702 is a “flexible one.” Daubert, 509 U.S. at 594, 113 S. Ct. at 2797. The inquiry should focus
on the principles and methodology the expert uses and not on the conclusions generated. Id. at 595,
113 S. Ct. at 2797. The Daubert Court gave four factors that should guide a district court’s analysis:
(1) whether the theory can be or has been tested; (2) whether the theory has been subjected to peer
review and publication; (3) in the case of a particular scientific technique, what the known or
potential rate of error is and the existence and maintenance of standards controlling the technique’s
operation; and (4) whether the theory has received “general acceptance” in the relevant scientific
community. Id. at 593-94, 113 S. Ct. at 2796-97. The Court noted that many factors will bear on
the inquiry and that the four factors given above should not be taken as a “definitive checklist or
test.” Id. at 593, 113 S. Ct. at 2796; Kumho Tire, 526 U.S. at 141-42, 119 S. Ct. at 1171. In addition
to the four factors explicitly listed by the Supreme Court in Daubert, courts after Daubert have noted
additional relevant factors, including “whether the expertise was developed for litigation or naturally

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flowed from the expert’s research; whether the proposed expert ruled out other alternative
explanations; and whether the proposed expert sufficiently connected the proposed testimony with
the facts of the case.” Lauzon, 270 F.3d at 687 (citing cases).
The trial court’s role is not to determine whether an expert’s opinion is correct; it is an expert
witness’s methodology, rather than his conclusions, that is the primary concern of Rule 702. Bonner
v. ISP Techs., Inc., 259 F.3d 924, 929 (8th Cir. 2001). “‘[E]ven if the judge believes there are better
grounds for some alternative conclusion, and that there are some flaws in the scientist’s methods,
if there are good grounds for the expert’s conclusion it should be admitted . . . .’” Id. (quoting Heller
v. Shaw Indus., 167 F.3d 146, 152-53 (3d Cir. 1999)). “Vigorous cross-examination, presentation
of contrary evidence, and careful instruction on the burden of proof are the traditional and
appropriate means of attacking shaky but admissible evidence.” Daubert, 509 U.S. at 596, 113 S.
Ct. at 2798. “Rule 702 favors admissibility if the testimony will assist the trier of fact, and doubts
regarding whether an expert’s testimony will be useful should generally be resolved in favor of
admissibility.” Clark v. Heidrick, 150 F.3d 912, 915 (8th Cir. 1998) (citation and quotation
omitted). “Only if an expert’s opinion is ‘so fundamentally unsupported that it can offer no
assistance to the jury’ must such testimony be excluded.” Hose v. Chicago Nw. Transp. Co., 70 F.3d
968, 974 (8th Cir. 1995) (quoting Loudermill v. Dow Chem. Co., 863 F.2d 566, 570 (8th Cir. 1988)).
Dr. Kytomaa’s proposed testimony meets the requirements of Rule 702 as interpreted by the
Supreme Court in Daubert. It is based upon sufficient facts, it is the product of reliable principles
and methods, and Dr. Kytomaa has applied the principles and methods reliably to the facts of this
case. It appears that he has used scientific principles that have been subjected to peer review and
publication, as indicated by the citations to peer-reviewed publications in his report. Furthermore,

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it appears that he has used scientific principles that are generally accepted in the relevant scientific
community. Although State Farm criticizes Dr. Kytomaa on several points, that criticism should
appropriately be developed on cross-examination and submitted to the jury for its consideration in
determining the credibility of Dr. Kytomaa’s testimony.
The proposed testimony of Dr. Wagenhofer is different. Dr. Wagenhofer proposes to testify
regarding two specific instances in which black iron pipe reportedly failed. Neither of those
instances involved a lightning strike. State Farm argues that Dr. Wagenhofer’s testimony is
irrelevant and based purely on speculation. Omega Flex argues that Dr. Wagenhofer’s testimony
is relevant, pointing to arguments by State Farm that black iron pipe is a safe alternative to Omega
Flex’s TracPipe and contending that Dr. Wagenhofer’s testimony is relevant to rebut that argument.
After careful consideration, the Court will postpone ruling on the admissibility of
Dr. Wagenhofer’s testimony until State Farm has concluded its case-in-chief at trial. After hearing
all of the evidence, the Court will be in a better position to judge whether that testimony is relevant
under Rule 401. If the testimony is relevant, at that time the Court can better judge whether its
probative value is substantially outweighed by the danger of confusing the issues, misleading the
jury, undue delay, and wasting time. See Fed. R. Evid. 403. One of the concerns is whether
Dr. Wagenhofer’s proposed testimony may result in mini-trials over the cause of two incidents that
may be only remotely relevant to the issues of this case. The Court can assess these concerns better
at trial than now.
The motion to exclude the testimony of Dr. Kytomaa is DENIED. Document #42. This is
a definitive ruling.

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The motion to exclude the testimony of Dr. Wagenhofer is also DENIED. Document #43.
This is not a definitive ruling. The Court will reconsider the issue after State Farm concludes its
case-in-chief at trial.
IT IS SO ORDERED this 12th day of December, 2017.

_________________________________
J. LEON HOLMES
UNITED STATES DISTRICT JUDGE

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