Kechi Township v. Freightliner, LLC et al

Filing 147

MEMORANDUM AND ORDER denying 122 Motion to Exclude. Signed by District Judge Monti L. Belot on 12/29/2011. (alm)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS

KECHI TOWNSHIP and EMPLOYERS
MUTUAL CASUALTY COMPANY,
Plaintiff,
v.
FREIGHTLINER, LLC n/k/a DAIMLER
TRUCKS NORTH AMERICA LLC,
Defendant.

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CIVIL ACTION
No.

10-1051

MEMORANDUM AND ORDER
This case comes before the court on plaintiffs’ motion to
exclude Daimler’s expert John Maurus and Daimler’s response.
122 and 138).

(Docs.

Plaintiffs Kechi Township (Kechi) and Employers Mutual

Casualty Company (EMC) filed this products liability action against
defendant Freightliner, LLC., n/k/a Daimler (Daimler) to seek recovery
for damages from a fire which completely destroyed Kechi’s shop and
all its contents.

At the time of the fire, a Model RL-70 2000

Freightliner truck, manufactured and sold by Daimler, was parked
inside the shop building.
Plaintiffs retained two experts to opine that the cause of the
fire was a result of a defect in the truck.1 Don Birmingham opined,
based on his personal on-site investigation, burn patterns, and
discussions with Sedgwick County Fire Department investigators, that
the fire originated from the truck. James Martin opined that the fire
was caused by a loose connection near the starter of the truck that
1

Daimler has moved to exclude the opinions of both experts.
(Docs. 117 and 119).

created excessive resistance sufficient to ignite nearby combustibles.
After further investigation, a bus bar and cap nut were found in the
engine connecting the starter solenoid to the positive battery cable,
alternator output cable, and cab power cable.
John Maurus is offered as Daimler’s expert and has several
opinions regarding the fire.

His conclusions are as follows:

2.

The fire originated in the southeast quadrant of the
structure, in the vicinity of the wood stove and John Deere
Gator.

3.

The cause for the fire could not be determined, but based
on the origin location, damages in the fire origin area,
and circumstances surrounding the loss, there were two
reasonably probable causation scenarios:
1.
2.

4.

A fire caused by the wood stove, its flue and/or ash
disposal in a plastic bucket.
An electric malfunction in the John Deere Gator.

Conclusions by investigators for EMC Insurance Companies
regarding the fire originating in the right part of the
engine compartment in the Freightliner truck and caused by
electrical resistance heating at the starter solenoid are
implausible and highly improbable for reasons stated in
this report.

(Doc. 122, exh. 1 at 18).
Plaintiffs move for the exclusions of Maurus’ opinions on the
basis that they are inconclusive and will not be helpful to the jury.
Analysis
“Rule 702 sets forth the standard for admission of expert
testimony,” U.S. v. Fredette, 315 F.3d 1235, 1239 (10th Cir. 2003),
and assigns “to the trial judge the task of ensuring that an expert’s
testimony both rests on a reliable foundation and is relevant to the
task at hand.”

Daubert v. Merrell Dow Pharm., 509 U.S. 579, 597, 113

S. Ct. 2786, 2799, 125 L. Ed. 2d 469 (1993).

Rule 702 provides that

[i]f scientific, technical, or other specialized knowledge
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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) 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.
Fed. R. Evid. 702.
Exclusion of expert testimony is the exception, not the rule.
See Advisory Committee Notes concerning the amendment to Rule 702
(noting that “a review of the case law after Daubert shows that the
rejection of expert testimony is the exception rather than the rule.”)
While a Daubert hearing is a commonly-accepted method of performing
the court’s “gate-keeping” function, it is not required.

United

States v. Charley, 189 F.3d 1251, 1266 (10th Cir. 1999)(district court
is granted great latitude in “deciding whether to hold a formal
hearing.”) Plaintiffs do not request a Daubert hearing in this case
and the court finds it unnecessary. Plaintiffs’ challenges to Maurus’
opinions essentially center around their conclusion that Maurus has
failed to actually state an opinion.
The majority of plaintiffs’ motion is spent citing the current
standards pertaining to the admissibility of expert opinions, which
the court is well aware of.

Plaintiffs, however, spend very little

time analyzing how Maurus’ opinions should be excluded in light of
those standards.

Plaintiffs’ specific arguments concerning Maurus’

opinions are as follows:
In the current matter, the report of John Maurus
reveals that he is basically acting as a rebuttal expert.
Plaintiff concedes that Maurus should be allowed to testify
in such a manner as to challenge the testimony and opinions
of the Plaintiff’s experts. He should not, however, be
allowed to provide opinion testimony that does not actually
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state an opinion. Maurus’s conclusions in his report state
that he doesn’t know what caused the fire and speculates
about other possible ignition sources, none of which he
investigated or provides any actual information about, only
to note they were possible ignition sources. Such a
conclusion is not the well formulated opinion of a person
with specialized knowledge. It is speculation intended to
confuse the jury.
(Doc. 122 at 8).
The court has reviewed Maurus’ report which was submitted with
plaintiffs’ motion.
details

his

Maurus’ report is twenty-four pages long and

investigation.

Maurus’

opinions

are

based

on

his

investigation of the fire scene, inspections of the truck on two
occasions, examination of the evidence taken from the scene and a
review of 70 photographs.

Maurus details the scene of the fire and

the contents of the warehouse.

Maurus then states that the cause of

the fire cannot be determined but that the fire started from either
the wood stove or a malfunction in a John Deere Gator.

Maurus goes

on to detail why he has come to that conclusion. Plaintiffs urge this
court to rule that Maurus’ opinions are not admissible because Maurus
does not ultimately conclude what caused the fire.

Plaintiffs,

however, fail to cite to any authority to support their position that
an expert must conclusively state an opinion as to a cause of a fire.
In fact, an expert is permitted to testify as to different scenarios
of causation if those scenarios are the expert’s opinions and they
would be helpful to the jury.

See Werth v. Makita Elec. Works, Ltd,

950 F.2d 643, 652 (10th Cir. 1991)(expert opined on three different
scenarios).
Finally, plaintiffs make a conclusory statement that Maurus’
opinions should be excluded because they do not lack legitimate

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scientific or technical foundation.

Plaintiffs, however, have not

identified why Maurus’ opinions lack foundation.

As the court

previously explained, Maurus detailed his examination of the evidence
and his methods at the beginning of his report. A review of the scene
of

a

fire

and

observing

the

physical

evidence

acceptable practice for fire investigators.

is

a

generally

See Bitler v. A.O. Smith

Corp., 391 F.3d 1114, 1122 (10th Cir. 2004).
The bottom line of Maurus’ opinion is that the fire did not
originate at or near the truck, which appears to be the opposite of
plaintiffs’ witness Birmingham but whose methodology is similar to
Maurus’.

Daubert/Kumho Tire motions are not legitimate substitutes

for cross-examination.

Plaintiffs’ counsel can cross-examine Maurus

and the jury will have the opportunity to weigh his testimony along
with all the other evidence.
Plaintiffs’ motion to exclude Maurus’ opinions is denied.

(Doc.

122).

IT IS SO ORDERED.
Dated this 29th day of December 2011, at Wichita, Kansas.

s/ Monti Belot
Monti L. Belot
UNITED STATES DISTRICT JUDGE

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