Garris et al v. Pelonis Appliances, Inc. et al

Filing 212

ORDER denying 137 Motion to Exclude; denying 138 Motion to Exclude; denying 140 Motion to Exclude; denying 142 Motion for Summary Judgment; denying 175 Motion to Strike ; denying 180 Motion to Strike ; denying 189 Motion to Strike. Signed by Judge Jay C. Zainey on 4/2/14. (Reference: 10-1569, 10-4513)(jrc)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
ELIZABETH GARRIS, ET AL.

CIVIL ACTION

VERSUS

NO. 10-1569
c/w 10-4513

PELONIS APPLIANCES, INC.,
ET AL.

SECTION: "A" (1)

ORDER AND REASONS
The following motions are before the Court: Motion to Exclude
Expert Testimony of Frederick M. Brooks (Rec. Doc. 137), filed by
Plaintiffs; Motion to Exclude Expert Testimony of Richard W. Jones,
Jr. (Rec. Doc. 138), filed by Defendants; Motion to Exclude Expert
Testimony

of

George

A.

Hero,

III

(Rec.

Doc.

140),

filed

by

Defendants; Motion to Strike Expert Affidavits (Rec. Doc. 189),
filed by Defendants; Motion to Strike Defendants' Filed Summary
Judgment

Evidence

and

Exhibits

(Rec.

Doc.

175),

filed

by

Plaintiffs; Motion to Strike Defendants' Filed Summary Judgment
Evidence and Exhibits (Rec. Doc. 180), filed by Plaintiffs; Motion
for Summary Judgment (Rec. Doc. 142), filed by Defendants.

All of

the motions are opposed and are before the Court on the briefs
without oral argument.1
I.

BACKGROUND
In the early morning hours of December 16, 2009, a fire

occurred in the bedroom of Plaintiffs Ronald and Elizabeth Garris'
1

The Court notes the parties' request for oral argument, but
determines that oral argument is not necessary in this matter.

apartment.

Before going to sleep the previous night, Mrs. Garris

placed a space heater on the floor next to her bed.

Plaintiffs

have filed this products liability action against Defendants for
damages sustained as a result of the fire.
Plaintiffs allege that a defect in Defendants' heater was the
cause of the fire.

Defendants deny liability, arguing that the

heater was not defective and did not cause the fire.

Rather,

Defendants point to evidence of Plaintiffs smoking cigarettes in
their apartment and contend that the cause of the fire was linked
to either a disregarded cigarette or cigarette lighter in the
vicinity of the heater.2
Defendants retained electrical engineer and certified fire
explosion expert Frederick Brooks to render expert opinions in this
matter.

Brooks stated that, as the remains of a cigarette lighter

were found in the debris from the fire, he could not rule out a
cigarette being the cause of the fire.

Brooks also opined that it

was extremely unlikely that the heater could reach temperature
levels

high

enough

to

ignite

the

nearby

bedding

materials.

Further, Brooks stated that he found no indication of any sort of
defect in the heater.
Plaintiffs retained certified fire investigator Richard Jones
as an expert to investigate the fire and render his opinion as to
causation.

Jones concluded that the fire originated from inside

2

Both Mr. and Mrs. Garris admitted to being cigarette
smokers and smoking inside the home.
2

the heater.

Jones noted that a combustible, such as dust or lint,

inside the heater likely sparked the fire.

Jones also refuted the

idea of a cigarette or cigarette lighter causing the fire.
Plaintiffs

also

retained

George

Hero

as

an

electrical

engineering expert to render his opinions as to the cause of the
fire. Hero determined that the cause and origin of the fire was the
defective heater.

Hero also found no credible evidence that the

fire was caused by smoking or cigarettes.
The parties have filed the instant motions moving to exclude
from evidence the opinions of the aforementioned experts, moving to
strike expert affidavits included as exhibits to motions filed, and
for summary judgment on the issue of causation.

For the reasons

that follow, these motions are DENIED.
II.

DISCUSSION
a.) Motions to Exclude Expert Testimony (Rec. Docs. 137, 138,
and 140)
Rule

702

of

the

Federal

Rules

of

admissibility of expert witness testimony.3

Evidence

governs

the

Rule 702 provides in

pertinent part:
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

3

Fed. R. Evid. 702; see also Daubert v. Merrell Dow
Pharmaceuticals, Inc., 509 U.S. 579, 588 (1993); United States v.
Hitt, 473 F.3d 146, 158 (5th Cir. 2006).
3

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.4
The

Supreme

Court's

decision

in

Daubert

"provides

the

analytical framework for determining whether expert testimony is
admissible

under

702."5

Rule

In

order

for

evidence

to

be

admissible under Daubert, the evidence must be both reliable and
relevant.6

The

district

court

serves

as

a

determining the admissibility of expert testimony.7

gatekeeper

in

The district

court must make a "preliminary assessment of whether the reasoning
or methodology underlying the testimony is scientifically valid and
whether that reasoning or methodology properly can be applied to
the facts in issue."8

The proponent of the expert testimony has

the burden of proving that the proffered testimony is admissible.9
However, the proponent need not prove to the judge that the

4

Fed. R. Evid. 702.

5

Pipitone v. Biomatrix, Inc., 288 F.3d 239, 243 (5th Cir.
2002).
6

Daubert, 509 U.S. at 589; see also Kumho Tire Co., Ltd. v.
Carmichael, 526 U.S. 137, 147 (1999).
7

U.S. v. Fullwood, 342 F.3d 409, 412 (5th Cir. 2003).

8

Pipitone, 288 F.3d at 244.

9

Fullwood, 342 F.3d at 412.
4

expert’s testimony is correct.10
and

appropriate

means

for

There exist several traditional

attacking

“shaky

but

admissible

evidence,” including “[v]igorous cross-examination, presentation of
contrary

evidence,

and

careful

instruction

on

the

burden

of

proof.”11
In Plaintiffs' Motion to Exclude Expert Testimony of Frederick
M. Brooks (Rec. Doc. 137), they seek to exclude Brooks' testimony
for not meeting the standards of Rule 702 and Daubert.12 Plaintiffs
argue that Brooks' testimony is based on unsubstantiated and
unverified information provided to Brooks by counsel for Defendants
and that he failed to conduct adequate research before forming his
opinions.

Further, Plaintiffs argue that Brooks acts as an

advocate by making the determination that Plaintiffs ignored a
warning against placing the heater too close to combustibles.
In Defendants' Motion to Exclude Expert Testimony of Richard
W.

Jones,

Jr.

(Rec.

Doc.

138)

and

Motion

to

Exclude

Expert

Testimony of George A. Hero, III (Rec. Doc. 140), they seek to
exclude the expert testimony of Jones and Hero for not meeting the
standards of Rule 702 and Daubert.

Defendants argue that the

experts' opinions are unreliable, speculative, and not based on
scientific principles.

Further, Defendants argue that the experts

10
Moore v. Ashland Chemical, Inc., 151 F.3d 269, 276 (5th
Cir. 1998).
11

Daubert, 509 U.S. at 596.

12

Id. at 591.
5

are not qualified to render the opinions in their reports.
The Fifth Circuit has stated the following, which is useful in
determining the admissibility of the expert testimony in this
matter:
[I]n determining the admissibility of expert testimony,
the district court should approach its task with proper
deference to the jury's role as the arbiter of disputes
between conflicting opinions.
As a general rule,
questions relating to the bases and sources of an
expert's opinion affect the weight to be assigned that
opinion rather than its admissibility and should be left
for the jury's consideration.13
After reviewing the parties' arguments in the instant motions,
the Court finds that the deficiencies the parties purport to
identify in the aforementioned experts’ opinions lend themselves
well to being challenged via vigorous cross-examination in front of
the jury.

Jurors are quite capable of understanding how to weigh

expert evidence that may be based on assumptions contrary to the
other trial evidence presented to the jury.
While the deficiencies in the experts' opinions might rise to
the threshold level that would allow the Court to exercise its
discretion to exclude testimony as unreliable, the Court does not
find any deficiency that rises to the level that mandates exclusion
under Daubert.

The Court is not persuaded that the problems

Plaintiffs and Defendants purport to identify in these motions

13

United States v. 14.38 Acres of Land, More or Less
Situated in Leflore Cnty., State of Miss., 80 F.3d 1074, 1077
(5th Cir. 1996).
6

trigger the nuclear option of excluding the expert testimony of
Brooks, Jones, or Hero.

Therefore, these motions are DENIED.

b.) Motion to Strike Expert Affidavits filed by Plaintiffs
(Rec. Doc. 189)
On November 25, 2013, Plaintiffs filed into the record, as
exhibits to their opposition to Defendants' Motion to Exclude
Expert Testimony of George A. Hero, III (Rec. Doc. 140), affidavits
from their experts Hero and Jones.14 Defendants have filed a Motion
to Strike Expert Affidavits filed by Plaintiffs (Rec. Doc. 189),
moving for the Court to strike those expert affidavits.
Defendants argue that the affidavits offer new opinions, rely
on new sources for the experts' opinions, and discuss additional
testing that has been conducted. Defendants argue that Plaintiffs'
disclosure of the affidavits is untimely, taking place after the
depositions of both Hero and Jones, and not in compliance with the
deadlines set in the Court's scheduling order for exchanging expert
reports.
Plaintiffs

oppose

the

motion,

arguing

that

the

expert

affidavits were submitted in response to Defendants' motions to
exclude the experts' testimony, as well as questions that arose in
the course of depositions.

Plaintiffs claim their experts are

merely providing additional information in light of issues raised
by Defendants.

Plaintiffs deny providing new opinions, but rather

14

Rec. Doc. 161-1 (Hero affidavit); Rec. Doc. 161-2 (Jones
affidavit).
7

contend that all issues discussed in their experts' affidavits had
been previously raised.
A review of the affidavits at issue reveals an effort by
Plaintiffs

to

supplement

their

expert

reports.

Plaintiffs

submitted these affidavits after the Court's scheduling order
deadline for the exchange of expert reports.
Federal Rule of Civil Procedure 16(b) authorizes district
courts to control and expedite the discovery process through a
scheduling order.15

Consistent with this authority, the Court has

"broad discretion" to enforce its scheduling order.16

The Court

considers the following four factors in exercising its discretion
to allow this evidence: (1) a party's explanation for its failure
to timely identify its witnesses and exhibits; (2) the importance
of the proposed evidence; (3) potential prejudice in allowing the
admission of the exhibits or testimony; and (4) the availability of
a continuance to cure such prejudice.17
With regard to the first factor, Plaintiffs give no reason for
their failure to comply with the scheduling order other than their
assertion that the affidavits were in response to issues raised by
Defendants in motions filed and depositions held after the expert
report deadline. While this factor weighs in favor of striking the

15

Fed. R. Civ. P. 16(b).

16

Geiserman v. MacDonald, 893 F.2d 787, 790 (5th Cir. 1990).

17

Id.
8

affidavits, the Court finds that the remaining factors weigh in
favor of allowing the affidavits to stand as expert testimony.
With regard to the second factor, this case greatly hinges on
the cause of the fire at Plaintiffs' home.

As the expert opinions

in these affidavits go towards proving the cause of the fire, they
are of significant evidentiary importance to this case.
Under

the

third

factor,

the

potential

for

Defendants in admitting the affidavits is low.

prejudice

to

The experts'

opinions in the affidavits provide further detail and additional
testing on previous assertions.

This may require Defendants to

expend resources in response, but will not force Defendants to
wholly re-structure their defense.
And finally, under the fourth factor, any prejudice suffered
by Defendants can likely be cured by a continuance. Since there is
currently no trial date, any prejudice to Defendants can be
accounted for when a trial date in this matter is set.
The

experts'

supplements

to

affidavits

Plaintiffs'

at

issue

shall

previously-issued

be
expert

considered
reports.

Accordingly, any purported deficiencies with the opinions therein
are subject to cross-examination in front of the jury.
The Court recognizes that Plaintiffs' use of affidavits to
supplement their expert reports was procedurally improper and not
in compliance with the scheduling order.

As a result, the court

will allow Defendants to cure any prejudice by extending deadlines
or

supplementing

their

own

expert

9

reports,

if

requested

by

Defendants.
For the foregoing reasons, Defendants' Motion to Strike Expert
Affidavits filed by Plaintiffs (Rec. Doc. 189) is DENIED.
c.) Motions to Strike Defendants' Summary Judgment Evidence
and Exhibits (Rec. Docs. 175 and 180)
On November 5, 2013, Defendants filed certain exhibits in
conjunction with their Motion for Summary Judgment (Rec. Doc. 142).
Plaintiffs' Motions to Strike Defendants' Summary Judgment Evidence
and Exhibits (Rec. Docs. 175 and 180) moves for the Court to strike
those

exhibits.

Specifically,

Plaintiffs

move

to

strike

an

affidavit of Defendants' expert Brooks,18 as well as exhibits to the
affidavit.

Plaintiffs

argue

that

Brooks'

affidavit

additional opinions based on incomplete research.

includes

Plaintiffs also

move to strike exhibits consisting of photographs of Plaintiffs'
home taken after the fire, arguing that they are irrelevant to the
issue of causation.
The

Court

denies

Plaintiffs'

motion

affidavit and the related exhibits.

to

strike

Brooks'

As the Court ruled with

respect to Plaintiffs' expert affidavits, the affidavit of Brooks
shall be considered a supplement to his previously-issued expert
reports,

with

his

opinions

subject

to

cross-examination

by

Plaintiffs at trial.
With respect to the other exhibits Plaintiffs move to strike,
the Court finds these exhibits were not determinative of the

18

Rec. Doc. 142-9.
10

Court's

ruling

on

Defendants'

Motion

for

Summary

Judgment.

Therefore, Plaintiffs' motion, as it pertains to striking these
exhibits, is moot.
d.) Motion for Summary Judgment (Rec. Doc. 142)
Summary Judgment is appropriate only if, "the pleadings,
depositions, answers to interrogatories, and admissions on file,
together with affidavits, if any," when viewed in the light most
favorable to the non-movant, "show that there is no genuine issue
as to any material fact."19

A dispute about a material fact is

"genuine" if the evidence is such that a reasonable jury could
return a verdict for the non-moving party.20

Once the moving party

has initially shown "that there is an absence of evidence to
support the non-moving party's cause,"21 the non-movant must come
forward with "specific facts" showing a genuine factual issue for
trial.22

Conclusional

allegations

and

denials,

speculation,

improbable inferences, unsubstantiated assertions, and legalistic
argumentation do not adequately substitute for specific facts
showing a genuine issue for trial.23

19

TIG Ins. Co. v. Sedgwick James, 276 F.3d 754, 759 (5th
Cir. 2002) (citing Anderson v. Liberty Lobby, Inc., 447 U.S. 242,
249-50 (1986)).
20

Id. (citing Anderson, 477 U.S. at 255).

21

Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986).

22

Id. (citing Fed. R. Civ. P 56(e); Matsushita Elec. Indus.
Co. v. Zenith Radio, 475 U.S. 574, 587 (1986)).
23

Id. (citing SEC v. Recile, 10 F.3d 1093, 1097 (1993)).
11

In Defendants' Motion for Summary Judgment (Rec. Doc. 142),
they assert that Plaintiffs are incapable of proving the essential
elements of their case under the Louisiana Products Liability Act.
Defendants aver that Plaintiffs cannot prove a defect in the
heater, cannot exclude all alternative causes of the fire, and
cannot prove that any manufacturing or other defect in the heater
caused the fire.
Plaintiffs have submitted expert testimony suggesting evidence
of a defect in the heater that caused the fire.

Since the Court

denied Defendants' motions to exclude the testimony of Plaintiffs'
experts, there remains a genuine dispute as to the material facts
surrounding the cause of the fire.

While Defendants deny the

existence of any defect, whether one existed is an issue of fact to
be

decided

by

the

jury.

Therefore,

summary

judgment

is

inappropriate and Defendants' motion is DENIED.
III. CONCLUSION
Accordingly, and for the foregoing reasons;
IT IS ORDERED that Plaintiffs' Motion to Exclude Expert
Testimony of Frederick M. Brooks (Rec. Doc. 137) is DENIED;
IT IS FURTHER ORDERED that Defendants' Motion to Exclude
Expert Testimony of Richard W. Jones, Jr. (Rec. Doc. 138) is
DENIED;
IT IS FURTHER ORDERED that Defendants' Motion to Exclude
Expert Testimony of George A. Hero, III (Rec. Doc. 140) is DENIED;
IT IS FURTHER ORDERED that Defendants' Motion to Strike Expert
Affidavits (Rec. Doc. 189) is DENIED;
12

IT IS FURTHER ORDERED that Plaintiffs' Motion to Strike
Defendants' Filed Summary Judgment Evidence and Exhibits (Rec. Doc.
175) is DENIED;
IT IS FURTHER ORDERED that Plaintiffs' Motion to Strike
Defendants' Filed Summary Judgment Evidence and Exhibits (Rec. Doc.
180) is DENIED;
IT IS FURTHER ORDERED that Defendants' Motion for Summary
Judgment (Rec. Doc. 142) is DENIED.
New Orleans, Louisiana, April 2, 2014.

______________________________
JAY C. ZAINEY
UNITED STATES DISTRICT JUDGE

13