Allied Property And Casualty Insurance Company v. Beazer Homes Holdings Corp. et al

Filing 150

ORDER Denying 115 Defendant Beazer Homes Holdings Corporation's Motion in Limine to exclude plaintiff argument and expert presentation of alleged improper installation. Signed by Judge James C. Mahan on 6/15/12. (Copies have been distributed pursuant to the NEF - EDS)

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UNITED STATES DISTRICT COURT
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DISTRICT OF NEVADA
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ALLIED PROPERTY AND
CASUALTY INSURANCE
COMPANY, a foreign corporation,
individually and as subrogee for its
insured Joseph M. Holohan,

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2:09-CV-626 JCM (PAL)

Plaintiff,

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v.
BEAZER HOMES HOLDINGS CORP.,
et al.,

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Defendants.
ORDER

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Presently before the court is defendant Beazer Homes Holdings Corporation’s (“Beazer”)

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motion in limine to exclude plaintiff argument and expert presentation of alleged improper

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installation. (Doc. #115). Plaintiff Allied Property and Casualty Insurance Company (“Allied”) filed

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an opposition. (Doc. #118). Beazer then filed a reply. (Doc. #128).

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This case arises from a fire which occurred on or about March 5, 2007. Plaintiff Allied

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Property and Casualty Insurance Company (“Allied”) alleges that the fire was caused by a defective

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garage door opener, which was missing a ground wire. Further, Allied asserts that the garage door

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opener was improperly installed. Specifically, an expert witness for Allied asserts that the garage

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door opener was not installed in a sufficiently rigid configuration. This configuration permitted

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abnormal vibrations in the opener which, combined with thermal cycling, accelerated the chaffing

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and degradation of the power cord and led to the fire. (Doc. #118).

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James C. Mahan
U.S. District Judge

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The instant motion in limine seeks to preclude Allied from presentation at trial of any

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argument or testimony that installation of the subject garage door opener was improper. (Doc.

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#115). In particular, Beazer asserts that Allied “should not be permitted to present at trial any

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argument or testimony that the subject installation was contrary to any standard or instruction, or that

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the subject installation was insufficiently rigid, resulted in excessive vibration, or resulted in any

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degradation of the garage door opener power cord.” (Doc. #115). According to Beazer, this theory

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of causation should be precluded because it lacks factual support.

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In support of its motion, Beazer notes that plaintiff’s expert witness did not see the garage

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door opener operate and, therefore, cannot opine that the installation configuration lacked sufficient

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rigidity. Additionally, the manufacturer’s installation instructions do not mandate a particular

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installation configuration, but instead state that “[t]wo representative installations are shown. Yours

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may be different.” (Doc. #115, Ex. B). Further, the expert witness did not observe the power cord

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prior to the fire, and the power cord was not recovered after the fire. Finally, Beazer asserts that the

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last person to observe the garage door opener operate, Karen Mahaffey, did not see any looseness

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or vibrations in the garage door opener. Thus, the expert witness has no factual basis to determine

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that the power cord was degraded due to abnormal vibrations. Accordingly, Beazer asserts that the

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expert’s opinion lacks factual support and is based on unjustifiable and unsupportable circular

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assumptions. (Doc. #115).

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Allied opposes the motion in limine, arguing that testimony about vibrations and degradation

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of the power court is necessary to explain why the power cord did not fail in the years prior to the

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fire. (Doc. #118). Allied asserts that the missing ground wire, combined with improper installation

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and thermal cycling, caused the fire in this case. In support of his assertion that the garage door

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opener was improperly installed, plaintiff’s expert examined the mounting configuration of the

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opener. The expert found that the opener was mounted to one joist using the last set of fastening

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holes on two long L-shaped channel brackets without any bracing in the direction of travel of the

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garage door. The expert asserts that this configuration allowed abnormal vibrations which led to

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degradation of the power cord. (Doc. #118, Ex. 2). Allied argues that its expert’s opinions are based

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James C. Mahan
U.S. District Judge

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on “his many years of personal experience and his hands-on testing of the brackets and garage door

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opener.” (Doc. #118). Accordingly, Allied asserts that its expert’s opinions are sufficiently reliable

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and relevant, and Allied must be permitted to present its theory of causation to the jury.

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Pursuant to Federal Rule of Evidence 702,

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a witness who is qualified as an expert by knowledge, skill, experience, training, or
education may testify in the form of an opinion or otherwise if: (a) the expert’s
scientific, technical, or other specialized knowledge will help the trier of fact to
understand the evidence or to determine a fact in issue; (b) the testimony is based on
sufficient facts or data; (c) the testimony is the product of reliable principles and
methods; and (d) the expert has reliably applied the principles and methods to the
facts of the case.

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FED. R. EVID. 702. In Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 597 (1993), the

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Supreme Court held that a trial court performs a “gatekeeping role” when performing a Rule 702

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analysis. Thus, the court can only admit expert testimony that is relevant and reliable. Id.

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Testimony is relevant if it will “help the trier of fact to understand the evidence or to determine a fact

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in issue.” FED. R. EVID. 702. The expert testimony must be “sufficiently tied to the facts of the case

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. . . .” Daubert, 509 U.S. at 591 (quoting United States v. Downing, 753 F.2d 1224, 1242 (3d Cir.

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1985)).

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The court has substantial discretion in its gatekeeping role. United States v. Hankey, 203

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F.3d 1160, 1167 (9th Cir. 2000). However, the Supreme Court identified several non-exclusive

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factors to aid the court in deciding whether the expert testimony is reliable: (1) whether a theory or

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technique can be, and has been, tested, (2) whether it has been subjected to peer review and

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publication, (3) the known or potential error rate of the theory or technique, and (4) whether the

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theory or technique enjoys general acceptance within the relevant scientific community. See

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Daubert, 509 U.S. at 592-94; Hankey, 203 F.3d at 1167.

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“Unlike an ordinary witness . . . an expert witness is permitted wide latitude to offer opinions,

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including those that are not based on firsthand knowledge or observation.” Daubert, 509 U.S. at

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592; see also FED. R. EVID. 702 (stating that an “expert may base an opinion on facts or data in the

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case that the expert has been made aware of or personally observed”). The focus of the court’s

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gatekeeping role is on the principles and methodology of the expert opinion, not on the correctness

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James C. Mahan
U.S. District Judge

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of the expert opinion. See Daubert, 509 U.S. at 595. If a party believes that the admissible opinions

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of an expert are “shaky,” those opinions are to be attacked by cross examination and contrary

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evidence, rather than be excluded. Id.

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In the instant case, plaintiff’s expert witness’s opinions regarding improper opener

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installation and causation of the fire are admissible. While the expert may not have firsthand

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knowledge or observation of the garage door opener and power cord at issue in this case, firsthand

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knowledge is not necessary for expert opinion. See FED. R. EVID. 702. See Primiano v. Cook, 598

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F.3d 592 (9th Cir. 2010). Allied alleges that the expert’s opinions are based on his personal

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knowledge, an examination of the installation configuration in this case, and hands-on testing of the

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support brackets and garage door opener. (Doc. #118).

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After examining the principles and methodology of the expert’s opinions in this case under

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the Daubert factors, the court finds that the expert’s opinions are sufficiently relevant and reliable

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to be admissible at trial. See Daubert, 509 U.S. at 592-94; FED. R. EVID. 702. While Beazer

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contests the accuracy, comprehensibility, and correctness of Allied’s expert witness’s opinions,

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Beazer can attack this allegedly “shaky” but nevertheless admissible evidence through vigorous

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cross-examination and presentation of contrary evidence. Daubert, 509 U.S. at 596.

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Accordingly,

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IT IS HEREBY ORDERED, ADJUDGED, AND DECREED that defendant Beazer Homes

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Holdings Corporation’s motion in limine to exclude plaintiff argument and expert presentation of

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alleged improper installation (doc. #115) be, and the same hereby is, DENIED.

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DATED June 15, 2012.

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UNITED STATES DISTRICT JUDGE
NITED STATES
I D
JUDG
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James C. Mahan
U.S. District Judge

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