Stohr et al v. Scharer et al

Filing 106

MEMORANDUM AND ORDER denying 75 Plaintiffs' Motion in Limine; granting in part and denying in part 92 Defendant David Farris's Motion for Summary Judgment. Signed by District Judge John W. Broomes on 5/23/2019. (mam)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS

CYNTHIA STOHR, et al.,
Plaintiffs,
v.

Case No. 17-1018-JWB

PETER SCHARER, et al.,
Defendants.

MEMORANDUM AND ORDER
This matter is before the court on Defendant David Farris’s motion for summary judgment.
(Doc. 92.) The motion is fully briefed and is ripe for decision. (Docs. 93, 102, 105.) Also before
the court is Plaintiffs’ motion in limine (Doc. 75) and Defendant’s response. (Docs. 77, 78.) For
the reasons stated herein, Defendant’s motion for summary judgment (Doc. 92) is GRANTED IN
PART and DENIED IN PART. Plaintiffs’ motion in limine (Doc. 75) is DENIED.
I. Background
Plaintiffs are the heirs of Ernest A. Stohr, who died on March 30, 2015. They assert
negligence claims against the remaining defendant, David Farris (“Defendant”).1 Plaintiffs allege
that Defendant negligently started a fire, on a property adjoining theirs, and that the fire caused
Ernest Stohr to suffer smoke inhalation and complications that ultimately caused his death two
weeks later. (Doc. 82 at 7.) Plaintiffs seek actual damages of just over $3 million, including
economic damages of about $2.4 million, as well as punitive damages. (Id. at 12.)

1

Defendants Peter and Shawnee Scharer, individually and as trustees of the Scharer living trust, were dismissed by
stipulation entered January 31, 2019. (Doc. 95.)

In his summary judgment motion, Defendant argues Plaintiffs cannot prevail because they
cannot establish the cause and origin of the fire. Alternatively, Defendant seeks summary
judgment insofar as Plaintiffs assert a wrongful death claim, arguing Plaintiffs have no expert
testimony to show that Ernest Stohr’s death was caused by smoke inhalation. (Doc. 93.)
II. Facts
The court finds the following facts to be uncontroverted for the purposes of summary
judgment. In keeping with summary judgment standards, where there is conflicting evidence or
where a fact depends upon the credibility of a witness, the court adopts the version of the facts
most favorable to Plaintiffs. The court does so because “[c]redibility determinations, the weighing
of evidence, and the drawing of legitimate inferences from the facts are jury functions, not those
of a judge” in ruling on summary judgment. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255
(1986).
A. Origin of the fire. Peter and Shawnee Scharer, individually and as trustees of the
Scharer living trust, owned property at 610 E. 85th St., Hutchinson, Reno County, Kansas.
Plaintiff Cynthia Stohr and her husband Ernest A. Stohr owned property just to the north of the
Scharer property at 9002 N. Plum St., Hutchinson, Reno County, Kansas.
Defendant worked and lived on the Scharer property. His duties included mowing the
pasture, which he did using the Scharers’ tractor. The tractor was blue and gray with a cab.
Defendant regularly used the tractor to maintain the pasture. Defendant was the only one known
to have access to the tractor and its key at the time of the fire. (Doc. 105 at 3.)
Peter Scharer wanted all of the cedar trees out of his pasture. He would typically gather up
cedar trees in piles in the pasture and burn them. Defendant had watched Peter Scharer burn the
piles on at least one occasion prior to March 16, 2015.

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On March 16, 2015, the day of the fire, Peter and Shawnee Scharer were out of the State.
Defendant was the only other person living on the Scharer property at that time. There were piles
of cedars out in the pasture that day.
Sometime in mid or late morning on March 16, 2015, Mike Ratzloff was outside walking
about 300 yards away from the Scharer property. He saw someone in the Scharers’ blue and gray
tractor pushing brush onto a pile on the Scharer property. Shortly thereafter, he saw a man with a
hat standing by the tractor looking at one of the brush piles. Ratzloff could see three or four brush
piles. (Doc. 102-9 at 1.) Later in the day, Ratzloff saw smoke coming from the Scharer pasture.
He saw the pasture was on fire, with the wind blowing the fire to the north, and the brush piles
were burning. There was somebody on the tractor pulling a disc on the south side of the fire in an
apparent effort to create a buffer.2 Ratzloff subsequently heard the sirens of approaching fire
trucks.
Defendant drove a white pickup truck. Soon after the fire began, a white pickup truck
resembling Defendant’s was seen by a neighbor being driven on the Scharer property on the north
side of the fire. (Doc. 105 at 5.) A neighbor also saw a white pickup parked in the vicinity of the
brush piles after the fire had started. (Doc. 102-4 at 6.) The neighbor went upstairs in his house
to get a better view of the fire. Based on what he saw, he thought the fire had started in the area
of the brush piles on the Scharer property, in the same area where brush piles had previously been
burned on that property. (Id. at 5-6.)
In addition to his job on the Scharer property, Defendant had a job working at Reins of
Hope, an organization that provided horseback rides to children and adults with disabilities.

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There is some evidence in the record that this person may have been Troy Wilder, Shawnee Scharer’s brother, who
was called by Scharer after she was notified of the fire. At Scharer’s request, Wilder went to the property to assist
Defendant. Wilder allegedly hooked up the disc after Defendant was unable to do so and used it to create a firebreak.
(Doc. 102-16 at 14-18.)

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Defendant testified that on March 16, 2015, he worked at his job at Reins of Hope from 7 a.m. to
3:00 p.m., before returning to the Scharer property. Defendant denies having started the fire. (Doc.
93-7 at 6.) In his deposition, Defendant testified he was in his room at the Scharer property around
4:45 p.m. when he first saw smoke, went outside, and saw the fire. (Doc. 102-5 at 31.)
Initially, Defendant testified in his deposition that when he first saw the fire, he saw no fire
trucks, and he proceeded to call Shawnee Scharer, who told him to call 911. After being shown a
transcript of a statement he had previously given to investigators, Defendant changed his
deposition testimony to say that when he first saw the fire, the fire trucks were already present, so
he called his employer Shawnee Scharer instead of calling 911. (Doc. 105 at 9.) Defendant denied
having driven his pickup truck around the fire. (Doc. 93-7 at 6.) He testified that after he saw the
fire he went to the tractor and hooked up the “drag” behind it and pulled it through parts of the
pasture to try to create a firebreak. (Id.)
The fire was reported to Reno County Emergency Services at about 4:35 p.m. on March
16, 2015.
Detective Richard Jennings of the Reno County Kansas Sheriff’s Office investigated the
fire but “inactivated” the investigation because he was “unable to determine exactly when or where
the fire started.” (Doc. 93-6.)
B. Circumstances of Ernest Stohr’s death. After learning of the fire, Ernest Stohr’s son
and daughter-in-law assisted him in going to an area of town where there was no smoke. After the
fire department cleared the area, Cynthia Stohr returned with Ernest to their home. Smoke was
still very thick around the home when they returned. They stayed the night in the home because
they could not find any vacant handicap-accessible hotel rooms in the area. During the night, a

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fire restarted on their property and they worked to put it out, with Ernest using a hose in an attempt
to keep the fire from getting to the house. They were outside most of the night.
During the week of March 16 to March 23, 2015, Ernest was using rescue inhalers. He
lost about ten pounds that week and was coughing, wheezing, nauseated, and suffering shortness
of breath and fatigue. These symptoms started 24 to 48 hours after the fire and progressed
throughout the week.
Ernest Stohr was admitted to the hospital on March 23, 2015, complaining of shortness of
breath. At the time, he was suffering from chronically high blood pressure, peripheral vascular
disease, diabetes, chronic obstructive pulmonary disease (COPD), and avascular necrosis.
On March 30, 2015, Ernest Stohr died. An autopsy was performed. An amended death
certificate was filed with the State of Kansas and signed by Jaime Oeberst, M.D. (Doc. 93-9.3)
Section 28 of the certificate addresses the “Cause of Death.” Part I deals with “Events (diseases,
injuries, or complications) that directly caused the death.” On Line A the physician is to list the
“immediate cause,” defined as “Final Disease or Condition Resulting in Death.” On Line A, Dr.
Oeberst listed “Ruptured Abdominal Aortic Aneurysm.” On Lines B, C, and D, the physician is
directed to list “Conditions, if any, leading to cause listed on line a,” and “underlying cause,”
defined as “disease or injury that initiated the events resulting in death.” On Line B, Dr. Oeberst
listed “hypertensive and atherosclerotic cardiovascular disease.” Part II of Section 28 calls for
“other significant conditions contributing to death but not resulting in the underlying cause given
in Part I.” Dr. Oeberst listed “smoke inhalation, exacerbation of chronic obstructive pulmonary
disease, [and] diabetes mellitus.” (Id.)

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The parties stipulated to the admissibility of the death certificate, subject to any objections regarding relevance or
materiality. (Doc. 82 at 3.)

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Plaintiffs cite deposition testimony of Geri Hart, M.D., and argue it shows Hart’s opinion
that “smoke inhalation from the Fire contributed to Ernest Stohr’s death.” (Doc. 102 at 13.) The
cited portions of the deposition, however, do not show such an opinion. Dr. Hart opined only that
the fire exacerbated Ernest Stohr’s COPD, which “then caused this cascade of events that ended
in his death.” (Doc. 102-6 at 4) (emphasis added.) When asked if it was her opinion that the
exacerbation of the COPD caused the aneurysm, she said no, and further stated that the aneurysm
was caused “by long-standing diabetes, tobacco, [and] hypertension.” (Id. at 4-5.) She agreed
with the statement in the death certificate that the aneurysm was the cause of death. (Id. at 5.)
Plaintiffs also cite the deposition of Costy Mattar, M.D., and similarly assert he testified
that “smoke inhalation from the Fire contributed to Ernest Stohr’s death.” (Doc. 102 at 13.) Again,
the deposition excerpts do not support that assertion. Dr. Mattar was asked at his deposition to
read a letter in which he had previously stated that “[o]bviously the COPD exacerbation and smoke
inhalation played a major role in [Ernest Stohr’s] death.” The letter additionally stated that Ernest
Stohr had high blood pressure and “[i]t is possible that the ruptured aortic aneurysm occurred
during one of these hypertensive episodes.” (Doc. 102-8 at 4.) But in the deposition excerpts
cited, Dr. Mattar did not assert that smoke inhalation from the fire played any contributory role in
the rupture of the aneurysm or in Mr. Stohr’s death. Dr. Mattar only opined that increased blood
pressure increased the likelihood of an aneurysm rupturing. (Id. at 5.) When asked to explain his
opinion concerning the aneurysm, he stated the following:
Q. Can you explain to us physiologically how an increased blood pressure could
lead to a rupture of an abdominal aortic aneurysm?
A. When the blood pressure is high, it put[s] pressure on that pouch and it can
rupture. Also, [an] aneurysm can rupture with normal blood pressure.
Q. And so what you’re saying is that Mr. Stohr’s abdominal aortic aneurysm could
have ruptured for a variety of different reasons; correct?
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A. Yes.
Q. And you’re not able to state to a reasonable degree of medical certainty what
likely caused his abdominal aortic aneurysm to rupture; correct?
A. If you want me to tell you the more – more 50 percent [sic] – the likelihood that
it rupture[d] from that high blood pressure more than [a] certain number, I can’t
give you that number.
Q. And I guess what I want to know is, in this case, are you attempting – you used
the word possible –
A. Possible, yeah.
Q. In your letter.
A. Yeah.
Q. And I understand when you say possible, what you’ve told us is there’s several
possible reasons why his –
A. Yes.
Q. - abdominal aortic aneurysm, which killed him, could have ruptured; correct?
A. Yes, yes.
Q. All right. And so what I want to know is, in this case, are you intending to offer
an opinion that you know what the – what likely caused his abdominal aortic
aneurysm to rupture?
A. To rupture? I cannot tell you what likely. [sic] Possibly the high blood pressure.
Possibly the stress of the shortness of breath. Possibly that was the time for the
aneurysm to rupture because it can do it. Like you can wreck your car driving going
on the highway; the same thing. Because it can happen. And that’s how people
die, regular people, regardless if they were in the hospital or walking on the street.
(Id. at 2.) The court finds that Plaintiffs’ proposed fact that smoke inhalation contributed to the
death of Ernest Stohr is not supported by the deposition testimony.
Finally, Plaintiffs cite a letter dated September 1, 2016, from Steven Ronsick, M.D., which
stated in part that “[t]he smoke inhalation and the exacerbation of his COPD and acute respiratory
failure are definitely linked to the grass fire smoke inhalation which caused [Ernest Stohr’s] death.”
(Doc. 102-13.) Aside from the confusing nature of this assertion, Dr. Ronsick’s letter is clearly
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unsworn hearsay and is not admissible in evidence to prove the cause or causes of Ernest Stohr’s
death. See Adams v. Am. Guarantee and Liab. Ins. Co., 233 F.3d 1242, 1246 (10th Cir. 2000)
(hearsay testimony that would be inadmissible at trial cannot be used to defeat a motion for
summary judgment); Capobianco v. City of New York, 422 F.3d 47, 55 (2d Cir. 2005) (“As a
general matter, it is correct that unsworn letters from physicians generally are inadmissible hearsay
that are an insufficient basis for opposing a motion for summary judgment.”)
III. Summary Judgment Standards
Summary judgment is appropriate if the moving party demonstrates that there is no
genuine dispute as to any material fact, and the movant is entitled to judgment as a matter of law.
Fed. R. Civ. P. 56(a). A fact is “material” when it is essential to the claim, and the issues of fact
are “genuine” if the proffered evidence permits a reasonable jury to decide the issue in either party's
favor. Sotunde v. Safeway, Inc., 716 F. App'x 758, 761 (10th Cir. 2017). The movant bears the
initial burden of proof and must show the lack of evidence on an essential element of the claim.
Thom v. Bristol—Myers Squibb Co., 353 F.3d 848, 851 (10th Cir. 2004) (citing Celotex Corp. v.
Catrett, 477 U.S. 317, 322–23 (1986)). The nonmovant must then bring forth specific facts
showing a genuine issue for trial. Id. The court views all evidence and reasonable inferences in the
light most favorable to the nonmoving party. LifeWise Master Funding v. Telebank, 374 F.3d 917,
927 (10th Cir. 2004).
IV. Analysis

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1.

Cause of the fire.

Plaintiffs’ negligence claim4 requires them to prove by a

preponderance of evidence that Defendant’s negligent acts caused them damages.5 The burden of
proving causation was discussed in Yount v. Deibert, 282 Kan. 619, 147 P.3d 1065 (2006), a case
in which there was no direct proof of the cause of a fire but circumstantial evidence pointed to a
group of boys who had been playing with fire before the incident. In addressing the burden of
proof, the court quoted at length from a well-known treatise:
The plaintiff must introduce evidence which affords a reasonable basis for the
conclusion that it is more likely than not that the conduct of the defendant was a
cause in fact of the result. A mere possibility of such causation is not enough; and
when the matter remains one of pure speculation or conjecture, or the probabilities
are at best evenly balanced, it becomes the duty of the court to direct a verdict for
the defendant. Where the conclusion is not one within common knowledge, expert
testimony may provide a sufficient basis for it, but in the absence of such testimony
it may not be drawn....
The plaintiff is not, however, required to prove the case beyond a reasonable doubt.
The plaintiff need not [negate] entirely the possibility that the defendant's conduct
was not a cause, and it is enough to introduce evidence from which reasonable
persons may conclude that it is more probable that the event was caused by the
defendant than that it was not. The fact of causation is incapable of mathematical
proof, since no one can say with absolute certainty what would have occurred if the
defendant had acted otherwise. Proof of what we call the relation of cause and
effect, that of necessary antecedent and inevitable consequence, can be nothing
more than ‘the projection of our habit of expecting certain consequents to follow
certain antecedents merely because we had observed these sequences on previous
occasions.’ If as a matter of ordinary experience a particular act or omission might
be expected, under the circumstances, to produce a particular result, and that result
in fact has followed, the conclusion may be permissible that the causal relation
exists.

4

Plaintiffs asserted a theory of negligence per se in the pretrial order in addition to ordinary negligence. (Doc. 82 at
6-7, 9.) Defendant has moved for summary judgment on the negligence per se theory, arguing the pretrial order shows
that Plaintiffs only asserted that theory against the Scharers. (Doc. 93 at 16.) See Fed. R. Civ. P. 16(d) (the pretrial
order controls the action unless the court modifies it.) Plaintiffs’ response does not address the issue. (Doc. 102.)
Because Plaintiffs have not contested the issue, the court will grant Defendant’s motion for summary judgment insofar
as Plaintiffs now seek to assert a theory of negligence per se against Defendant.
5

Plaintiffs seek various other damages in addition to damages for wrongful death. (Doc. 82 at 12.)

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Id. at 628–29, 147 P.3d at 1072–73 (quoting Prosser & Keeton on Torts, § 41, pp. 269-70 (5th ed.
1984)).
Plaintiffs argue the evidence shows a genuine issue of fact as to what time Defendant was
present on the Scharer property on March 16, 2015, and whether he lit any brush fires that day.
The court agrees. A jury viewing the evidence in Plaintiffs’ favor could reasonably conclude that
Defendant was, more likely than not, the person seen on the morning of March 16, 2015, piling up
brush on the Scharer property with the Scharers’ tractor. A jury could further conclude Defendant
likely started the fire by burning those brush piles. There is no direct evidence of this, but a jury
examining all of the circumstances could, if it drew all reasonable inferences in Plaintiffs’ favor,
make such findings by a preponderance of the evidence. The circumstances potentially supporting
such a conclusion include evidence of the following: that Defendant had previously watched Peter
Scharer burn the brush piles; that Defendant knew Peter Scharer wanted the cedars burned and the
fact the brush was piled up for burning on the day of the fire; the fact that Peter and Shawnee
Scharer were out of town at the time of the fire; Defendant’s exclusive access to the tractor on the
morning and afternoon of the fire; Mike Ratzloff’s testimony that he saw a man using the Scharers’
tractor to pile up brush shortly before the fire; testimony indicating the fire likely started in the
area of the brush piles; the sighting of what appeared to be Defendant’s pickup truck parked by
the brush piles and driving around the fire; the absence of evidence suggesting a likely alternative
source or cause of the fire; and the absence of an indisputable alibi for Defendant for the morning
of March 16, 2015, or for the afternoon when the fire apparently started.6

6
Defendant cites no uncontroverted evidence establishing an alibi. The court notes it is uncontroverted that a
document created by Defendant allegedly showing his work times at Reins of Hope in March of 2015, differs markedly
from other, more detailed time records from Reins of Hope. (Doc. 105 at 6-7.) Also, the document shows no specific
hours worked for any day of March 2015 and indicates Defendant was paid for only two hours of work each day that
month. (Id.)

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As in Yount, there is no direct or concrete proof here of how this fire started, and the
authorities ultimately reached no conclusion as to its cause, but enough circumstantial evidence
has been cited to allow a reasonable jury to conclude that Defendant’s negligent actions more
likely than not caused the fire. A jury could reach that conclusion by drawing inferences from the
evidence such that it would constitute a reasonable deduction rather than mere speculation.
Accordingly, Defendant’s motion for summary judgment will be denied insofar as he claims
Plaintiffs have failed to cite evidence showing a genuine issue of fact as to the cause of the fire.
2. Wrongful death. “If the death of a person is caused by the wrongful act or omission of
another, an action may be maintained for the damages resulting therefrom….” K.S.A. § 601901(a). As explained in Burnette v. Eubanks, 308 Kan. 838, 425 P.3d 343 (2018), this requires a
showing that a wrongful act “caused or contributed” to the death. But regardless of whether an act
is claimed to be the sole cause or a contributing cause, a plaintiff must show “but-for causation” –
meaning if the death would have occurred without a defendant’s negligence, no causation has been
shown and there is no claim for wrongful death. Id. at 842-43, 425 P.3d at 348.
Plaintiffs argue the testimony of Drs. Hart and Mattar satisfies the causation element,
because it shows there was a “direct causal relationship between Ernest’s smoke inhalation, the
spiking of his blood pressure for many hours, and the fatal rupture of his aortic aneurysm.” (Doc.
102 at 20.) But as previously indicated in the statement of facts, the deposition testimony of these
witnesses does not include any opinion that smoke inhalation from the fire was a contributing
factor in the rupture of the aneurysm or in Ernest Stohr’s death. Nor can the letter of Dr. Ronsick
satisfy the causation element, because the letter is inadmissible hearsay. Finally, to the extent
Plaintiffs rely on the death certificate alone to establish causation, the document itself is equivocal
and is insufficient for a jury to conclude – without resorting to speculation - that smoke inhalation

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was a “but-for” cause of the rupture of the aneurysm. Expert medical testimony is required under
these circumstances to establish that smoke inhalation from the fire was a cause of Mr. Stohr’s
death. See Puckett v. Mr. Carmel Reg. Med. Center, 290 Kan. 406, 435-36, 228 P.3d 1048, 1068
(2010) (expert testimony is generally required to establish causation on medical issues because
such matters are outside the knowledge of the average lay person.) Because Plaintiffs have failed
to cite expert medical testimony from which a jury could properly find that smoke inhalation
caused or contributed to Mr. Stohr’s death, the claim for wrongful death fails as a matter of law.
Defendant’s motion for summary judgment is accordingly granted insofar as Plaintiffs assert a
claim for wrongful death. This ruling does not preclude Plaintiffs’ negligence claim insofar as it
seeks damages other than those for wrongful death. See K.S.A. § 60-1801 (an action for injury to
a person or to real estate survives the death of the injured person, and may be brought
notwithstanding the death of the person.)
V. Motion in Limine
Plaintiffs seek an order in limine precluding Defendants from introducing any evidence of
“collateral source” benefits that Plaintiffs received from third parties, and evidence of “unrelated
acts of arson that were committed in Reno County by a third party.” (Doc. 75 at 1.)
1. Collateral source benefits. Under the collateral source rule, benefits received by a
plaintiff from sources independent of and collateral to a wrongdoer will not diminish the damages
otherwise recoverable from the wrongdoer. Rose v. Via Christ Health System, Inc., 276 Kan. 539,
544, 78 P.3d 798, 802 (2003). Plaintiffs seek an order excluding from trial any evidence that
Plaintiffs received any benefits or compensation “by reason of the illness of, injuries to, or death
of Ernest Stohr.” (Doc. 75 at 1.) Defendant’s response7 argues that evidence of the following

7

Defendant filed a notice that he joined in a response brief filed by the Scharers. (Doc. 78).

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would not violate the collateral source rule and should be admitted: (1) evidence regarding an
accidental life insurance policy on which Plaintiffs obtained payment; (2) evidence regarding
Cindy Stohr’s receipt of a Veterans Administration survivor benefit; (3) evidence of Social
Security Disability and Medicaid benefits received by Jeffrey Stohr; and (4) evidence of write-offs
and adjustments of Ernest Stohr’s medical expenses. (Doc. 77 at 7.)
At least some, and likely most, of the collateral source benefits cited by Defendant may no
longer be relevant in view of the court’s dismissal of Plaintiff’s wrongful death claim. Because
the court’s ruling has significantly narrowed the damages that remain at issue, and it is unclear
from the current motion what collateral source payments (if any) remain at issue, the court will
deny Plaintiffs’ motion to exclude these items, but will do so without prejudice. The parties are
directed to confer as to whether Defendant intends to introduce evidence of any collateral source
benefits in view of the summary judgment ruling. Plaintiffs may then refile a motion in limine as
necessary to address any remaining items, and Defendant may file a response thereto.
2. Evidence of arsonist. Defendant may seek to introduce evidence at trial that an
individual named James Farra started ten grass and brush fires in the Hutchinson area on March
14, 2015, four fires on March 24, 2015, and seven fires on April 7, 2015, and that Farra was
arrested on seven counts of arson. Defendant alleges that Detective Jennings had Farra in custody
in April of 2015, and that Farra admitted having ignited several fires, but Jennings did not ask
Farra about the March 16, 2015, fire. (Doc. 77 at 12.) Defendant argues this is circumstantial
evidence of possible alternative causes of the March 16 fire and is also relevant to show that
Jennings, who reached no conclusion as to the cause of the March 16 fire, failed to thoroughly
investigate Farra as a suspect in that fire. For their part, Plaintiffs contend this evidence amounts

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to speculation that will distract or prejudice the jury, and also that it is inadmissible character
evidence. (Doc. 75 at 6.)
The motion to exclude this evidence will be denied. Evidence is relevant if it has “any
tendency to make a fact more or less probable than it would be without the evidence,” provided
the fact is of consequence to the action. Fed. R. Evid. 401. Evidence that this individual was
actively setting fires of a type arguably similar to the one at issue, in the same general area, and at
about the same time as the March 16 fire, would tend to make it more probable that Farra started
the March 16 fire. It bears noting that Plaintiffs seek to hold Defendant liable for the fire based
solely on circumstantial evidence, despite the fact that no one saw him start the fire. By the same
token, Defendant is entitled to offer circumstantial evidence of his own suggesting possible
alternative causes of the fire, including evidence that another individual in the same area was
intentionally setting similar fires. The jury is entitled to consider and weigh this evidence in
determining the facts. Plaintiffs have failed to show that the probative value of such evidence is
substantially outweighed by the danger of unfair prejudice or confusion of the issues. See Fed. R.
Evid. 403. Plaintiffs can of course present evidence indicating that Farra was not involved in the
March 16 fire, and the jury can make its determination from the totality of the evidence. Finally,
the court rejects Plaintiffs’ contention that evidence relating to Farra must be excluded as improper
character evidence. Rule 404(b) permits evidence of a person’s wrongs or other acts to show
motive, opportunity, plan, and identity, among other purposes. Fed. R. Evid. 404(b)(2). Evidence
that Farr engaged in a series of arsons at the time in question would have a tendency to show such
purposes, including the identity of the person who started the fire, separate and apart from any
relationship to Farr’s character. Plaintiffs’ motion to exclude such evidence will be denied.

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VI. Conclusion
Defendant’s motion for summary judgment (Doc. 92) is GRANTED IN PART and
DENIED IN PART. Plaintiffs’ motion in limine (Doc. 75) is DENIED. IT IS SO ORDERED this
23rd day of May, 2019.
_____s/ John W. Broomes__________
JOHN W. BROOMES
UNITED STATES DISTRICT JUDGE

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