Empire Fire & Marine Insurance Company et al v. Centex Homes et al
MEMORANDUM ORDER: Plaintiffs' Motion in Limine 2 and Defendant's Motion in Limine 1 are DENIED. Defendant's Motion in Limine 2 is GRANTED (see Memorandum Order for further details). Signed by Judge Richard G. Andrews on 1/23/2015. (nms)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF DELAWARE
EMPIRE FIRE AND MARINE
INSURANCE COMPANY, as subrogee of
JAMES AND CHARLENE
STATE FARM FIRE AND CASUALTY
COMPANY, as subrogee of VICTOR AND
Civil Action No. 13-332-RGA
ROYAL PLUS ELECTRIC, INC.,
Before the Court are Plaintiffs' Motion in Limine 2 and Defendant's Motions in Limine 1
and 2. (D.I. 96 at 4-14). Per the Court's request, Defendant submitted a supplemental letter
addressing the deposition testimony of the Dautenhahns' neighbor, Richard Neff, and providing
the date for when cigarette butts were first found on the property. (D.1. 99). Plaintiffs responded
to Defendant's letter on January 21, 2015. (D.I. 102). IT IS HEREBY ORDERED that
Plaintiffs' Motion in Limine 2 and Defendant's Motion in Limine 1 are DENIED, and
Defendant's Motion in Limine 2 is GRANTED.
Plaintiffs' Motion in Limine 2
Plaintiffs move to preclude Defendant from making any reference to an improperly
disposed of cigarette as a possible cause of the fire. (D.1. 96 at 4). In the Memorandum Order
issued on November 25, 2014, I granted Plaintiffs' Motion in Limine to exclude the testimony of
Defendant's expert, Gregory Paulsen, regarding careless smoking as a possible cause of the fire.
(D.1. 84). Mr. Paulsen's expert report does not mention careless smoking as a possible cause of
the fire, and he testified at his deposition that he could not say, one way or the other, whether
careless smoking was a potential cause of the fire because there was no evidence either way.
(D.1. 81, Ex.Cat 65:19-66:10). Since then, the Dautenhahns' neighbor, Mr. Neff, has come
forward and testified to seeing a man in his mid-twenties, dressed in painter's clothing, talking
on his cell phone in front of the Dautenhahn home, thirty to forty-five minutes before the fire.
(D.1. 99, Ex. A at 7:16-9:23 & 14:6-16:3).
Mr. Neff's testimony does not appear to be reconcilable with that of the painter, Brian
O'Connell, who testified that he was at the Dautenhahn home around 10:30 a.m. on the morning
of April 20, 2012, and only stayed for about thirty minutes. (D.I. 96, Ex. 7 at 53:4-54:5). Mr.
Neff's testimony is particularly significant because Mr. O'Connell is in his mid-twenties,
smokes, and testified to smoking on the Dautenhahns' property every day while working there.
(Id. at 42:14-43:10). 1 The fire marshal, Harry Miller, testified that had he known one of the
painters was a smoker at the time of his investigation, he would have been concerned that his
conclusion about the cause of fire may have been incorrect. (Id., Ex. 6 at 137:9-15). Mr. Miller
also testified that if someone had been smoking at the house on the day of the fire, then he would
have likely deemed the cause of fire undetermined. (Id. at 138:22-139:3). In light of Mr. Neff's
testimony, the theory of careless smoking cannot be ruled out as a matter oflaw, and Defendant
is not precluded from presenting evidence tending to suggest that careless smoking cannot be
Mr. O'Connell testified that he did not smoke at the Dautenhahn home on the day of the fire.
ruled out as a possible cause of the fire. My prior Order granting Plaintiffs' Motion in Limine to
exclude Mr. Paulsen's testimony regarding careless smoking, however, still stands.
Defendant's Motion in Limine 1
Defendant moves to prohibit Plaintiffs' expert, Samuel Sudler, from testifying that
Defendant made a loose electrical connection at the time of installation. (D.I. 96 at 7). I have
already addressed this issue in the Memorandum Order issued on November 25, 2014, finding
that, "Mr. Sudler's opinion need not be that it is more likely than not Royal Plus made a loose
connection, nor must Mr. Sudler conclude with a reasonable degree of professional certainty that
Royal Plus made a loose connection." (D.I. 84 at 6). Mr. Sudler testified at his deposition that
he did not know whether the original connection was loose when it was made, and that he did not
know when the connection came loose. (D.I. 96, Ex. 5 at 21 :5-17). Therefore, Mr. Sudler may
testify to the possible causes of the loose connection, including the possibility that Defendant
made a loose electrical connection at the time of installation. To the extent that Mr. Sudler's
testimony at trial is inconsistent with his expert report or deposition testimony, that is a proper
subject of impeachment.
Defendant's Motion in Limine 2
Defendant moves to permit the fire marshal, Mr. Miller, to testify at trial that he cannot
rule out careless smoking as a potential cause of the fire. (D.I. 96 at 8). When Mr. Miller drafted
his report, he was unaware that one of the painters, Mr. O'Connell, was a smoker. (Id., Ex. 6 at
137:16-23). Mr. Miller testified at his deposition that ifhe found out someone was smoking at
the house on the day of the fire then his conclusion likely would have been different. (Id. at
138:22-139:3). Therefore, in light of Mr. Neffs testimony, Mr. Miller is permitted to testify that
he cannot rule out careless smoking as a potential cause of the fire.
For the reasons set forth above, Plaintiffs' Motion in Limine 2 and Defendant's Motion in
Limine 1 are DENIED, and Defendant's Motion in Limine 2 is GRANTED.
2J r"' of January, 2015.
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