MMG Insurance Company v. Samsung Electronics America, Inc.

Filing 58

MEMORANDUM ORDER denying 27 Motion to Exclude Expert Testimony of Gary Simard; denying 28 Motion to Exclude Expert Testimony of Steven Thomas; denying 29 Motion for Summary Judgment; denying as moot 34 Motion to Strike [ 27] Motion to Exclude Expert Testimony of Gary Simard; denying as moot 35 Motion to Strike 28 Motion to Exclude Expert Testimony of Steven Thomas; denying as moot 51 Motion for Leave to File Motion to Exclude Testimony of Gary Simard; denying as moot 52 Motion for Leave to File Motion to Exclude Testimony of Steven Thomas. So Ordered by Chief Judge Joseph N. Laplante.(jb)

UNITED STATES DISTRICT COURT
DISTRICT OF NEW HAMPSHIRE
MMG Insurance Co.
v.

Civil No. 11-cv-430-JL
Opinion No. 2013 DNH 061

Samsung Electronics
America, Inc. and
Best Buy Co., Inc.
MEMORANDUM ORDER
This action arises out of a house fire that allegedly
started in a home theater system manufactured by defendant
Samsung Electronics America, Inc., and sold by defendant Best Buy
Co., Inc.

By way of subrogation, plaintiff MMG Insurance Co.,

which insured the house and its contents, seeks to recover
against the defendants for the property damage that its
policyholders suffered in the fire, bringing state-law claims of
negligence, strict products liability, and breach of warranty.
This court has jurisdiction under 28 U.S.C. § 1332(a)(1)
(diversity), because MMG is a Maine corporation with its
principal place of business there, Best Buy is a Minnesota
corporation with its principal place of business there, and
Samsung is a New York corporation with its principal place of
business in New Jersey.
The defendants have moved for summary judgment.
Civ. P. 56.

See Fed. R.

Like many a defendant in a products liability case,

they argue that MMG’s designated experts, who plan to testify
that the defendants’ product caused the fire, are unqualified to
give those opinions, which are also not based on reliable
principles and methods.

See Fed. R. Evid. 702.

The defendants

point out that, without such testimony, MMG cannot prove any of
its claims.

As is often the case, however, the objections that

the defendants raise to MMG’s proffered opinion testimony go to
its weight, not its admissibility (at least so far as the court
can understand those objections from the materials submitted so
far).1

As explained more fully below, the defendants’ motions to

exclude certain of MMG’s expert witnesses are denied without
prejudice to the defendants’ ability to renew their objections to
testimony by those witnesses at trial.

But it follows that the

defendants are not entitled to summary judgment due to MMG’s lack
of expert testimony that the DVD player caused the fire.
The defendants also seek summary judgment on an alternative
ground.

They argue that the case should be dismissed because,

following the fire, MMG failed to restrict access to the
premises, and that its own investigators improperly manipulated

1

In fact, counsel for the defendants, who is highly
experienced in defending products liability actions, acknowledged
at oral argument that he had never prevailed on a motion to
exclude proffered expert testimony on the ground that it failed
to satisfy Rule 702 (though he said he had achieved rulings
limiting the scope of such testimony in some cases).
2

the evidence.

But the defendants have shown neither the degree

of culpability, nor the resulting prejudice, that would warrant
dismissal of the case as a sanction for that conduct (though the
defendants are free to seek other relief, including a spoliation
instruction to the jury at trial).
After hearing oral argument, the court denies the
defendants’ motion for summary judgment.
I.

Applicable legal standard
Summary judgment is appropriate where “the movant shows 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 dispute is “genuine” if it could reasonably be

resolved in either party’s favor at trial, and “material” if it
could sway the outcome under applicable law.

See Estrada v.

Rhode Island, 594 F.3d 56, 62 (1st Cir. 2010).

In analyzing a

summary judgment motion, the court “views all facts and draws all
reasonable inferences in the light most favorable to the
non-moving” party.

Id.

The following facts are set forth in

accordance with this standard.
II.

Background
On March 9, 2009, in the early afternoon, firefighters from

the Manchester Fire Department responded to the report of a fire

3

at a single-family home owned by Mark and Helen Berthiaume.
Nobody was home at the time.
After the fire was extinguished, Mitchell Cady, an
investigator with the department, examined the scene, taking a
number of photographs.

Cady concluded that the fire originated

in the living room, in the “entertainment center”--a cabinet that
contained, among other things, a television, cable box, Wii video
game system, and home theater system.

While Cady could not

determine the “exact” cause of the fire, he concluded that it was
not intentionally set, and that “it was most likely caused by an
electrical malfunction involving one or more of” these devices.
There is no dispute in this case, in fact, that the fire
originated in the area of the entertainment center.
Within the entertainment center, the home theater system was
positioned atop the cable box, on the left-hand side (facing the
cabinet) of a shelf below the television.

The Wii was positioned

on the right-hand side of that shelf, on the other side of a
partition that divided the shelf into its left and right sides.
The television was positioned on the shelf above these other
components.

The home theater system, manufactured by defendant

Samsung, consisted of a five-disc player with a power supply,
amplifier, and tuner, contained within a metal cabinet.

While

the top of the home theater cabinet was a solid sheet of steel,

4

vents were placed in the bottom, including underneath the power
supply.

A cooling fan was mounted in the rear of the unit.

On March 14, 2009, two investigators, Robert Long and Gary
Simard, examined the scene on behalf of MMG, the Berthiaumes’
property insurer.

Long acknowledges that “the scene was

unprotected for five days prior to [their] arrival” and that,
when they arrived, “there were people in there from the cleaning
company and the board-up company.”

Following “fire patterns” in

the structure, Long and Simard focused on the remains of the
entertainment center, noting that it, as well as “some of the
debris,” had been moved away from the wall prior to their
arrival.

Nevertheless, “a substantial amount of debris

remained,” which the investigators “systematically cleared . . .
via the layering method,” i.e., “removing debris from the top
down and observing the relative location of artifacts.”

In this

process, they removed “anything that looked electrical, wiring or
anything like that,” placing it in bags, leaving the rest of the
debris, which was “structure-related,” in place.
Long and Simard also encased the entertainment center in
shrink wrap and moved it from the living room into the garage (an
area of the house that had not sustained any damage in the fire).
Simard explained that they did this so that the workers on the
site could secure the living room ceiling above the entertainment

5

center, which had sustained heavy damage in the fire.

Before

wrapping and moving the entertainment center, Simard and Long
examined and took photographs of it.
Following the investigation, which also included
interviewing Mark Berthiaume and reviewing Cady’s report, Long
prepared a report concluding that “the fire originated within the
entertainment center . . . .

Further evidence indicates the fire

originated in the . . . cable box or the . . . DVD player,” i.e.,
home theater system.

Those devices, as just stated, were located

in the left-hand compartment of the shelf below the television.
The report explains that the partition separating this
compartment from the right-hand side of the compartment (housing
the Wii) showed “fire damage that was greater on the left side
than on the right side” and “directional toward the lower section
of the shelf.”

This directional fire damage aligned with a

“distinct thermal pattern . . . on the right side of the cable
box and the underside of the DVD player.”
At his deposition, Simard acknowledged the possibility that
the burn pattern on the shelf partition could have come from the
television, had it caught fire and fallen down from the shelf
above.

But he explained he did not think this was the case

principally because, had the fire started in the television, it
would have caused “more consistent burning on the appliances all

6

the way across,” rather than just on the left-hand side.

Simard

acknowledged, however, that the shelf holding the television
(which had been positioned above the home theater system) was not
recovered from the scene and that, while he believed it had been
consumed in the fire, “[i]t could have been thrown out by the
firefighters.”
A second inspection of the scene occurred on March 15, 2009,
the day after Long and Simard had first visited.

Present at this

inspection were representatives of the manufacturers of the
various devices within the entertainment center, who had been
notified and invited by MMG, including a consultant and an
attorney who attended on behalf of Samsung.

Among those who

attended on behalf of MMG was an engineering consultant, Steven
R. Thomas.

During this inspection, certain items, including the

entertainment center, were identified for packaging and transport
to a laboratory facility in Massachusetts, where they were
further examined by Thomas, among others.

Thomas also acquired

and tested an exemplar of the same model of Samsung home theater
system found in the Berthiaumes’ home, and reviewed Cady’s report
and the accompanying photographs.
Thomas then prepared a report concluding that the fire was
“a result of a component failure/overheating of the power supply”
in the DVD player.

The report explains that:

7

The burn patterns and configuration of the Samsung home
theater system and [cable box] clearly established this
location for point of ignition. The fire damage was
most intense and concentrated in the area of the
Samsung power supply. This area is covered by a steel
sheet which would have protected the internal
components had ignition occurred above or behind the
unit. This area of the Samsung home theater [system]
had a power source and would remain at an elevated
temperature if the system was simply left on. The
[cable box] had no power sources in the affected area
and the power supply which was on the opposite side of
the unit remained generally intact.
Thomas testified that, although the shelf that held the
television was not recovered from the scene, its condition after
the fire supported his conclusion that ignition occurred inside
the home theater unit, because Cady’s photographs show “basically
some charring of the underside of the shelf,” with its thickness
“essentially intact.”

Thus, Thomas explained, “the shelf, as

well as the top of the Samsung unit, . . . would have protected
the damaged components within the Samsung unit from the fire
event had it originated at a level up above that shelf, such as
the television.”

In fact, Thomas testified that the “the burning

of the interior of the Samsung unit” made him confident that the
television was not the source of the fire.

He maintains this

confidence even though there were portions of the television that
he would have expected to survive the fire that were nevertheless
not recovered from the scene.

8

II.

Analysis

A.

Plaintiff’s expert witnesses
MMG has designated both Simard and Thomas to serve as expert

witnesses in this matter.

The defendants have moved to preclude

any expert testimony from either as to the cause or the origin of
fire, objecting that it is inadmissible under Rule 702 of the
Federal Rules of Evidence.

Under Rule 702,

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 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.
Fed. R.

Evid. 702.

As the structure of this rule suggests,

before the factfinder in a case can consider expert testimony
over the adverse party’s objection, the trial judge, serving as
“gatekeeper,” must determine whether the testimony satisfies the
relevant foundational requirements.

See Daubert v. Merrell Dow

Pharms., Inc., 509 U.S. 579, 597 (1993).
The defendants argue that the anticipated expert testimony
from both Simard and Thomas as to the cause and origin of the
fire fails to meet the requirements of Rule 702 in two respects.
The defendants argue that (1) neither Simard nor Thomas is
qualified to give expert testimony as to the cause or origin of
9

the fire and (2) the methodology that each expert used to support
his opinions on that point “is biased, lacks factual or
scientific support, and is nothing more than speculative
conjecture.”

As explained below, the court disagrees, at least

based on the materials before it at present.

Conspicuous by its

absence from these materials is anything from the defendants’ own
retained experts, including, most significantly, anything
criticizing their counterparts’ methodology.

The court therefore

denies the defendants’ motions to exclude testimony from Simard
and Thomas without prejudice to the defendants’ ability to renew
their objections to that testimony later in these proceedings.2
1.

Simard

The defendants’ objection to Simard as unqualified is
difficult to take seriously.

Simard, who spent nearly 30 years

as a firefighter before retiring in 2009, has investigated more
than 500 fires.

Since 2009, he has worked as a field

investigator for a Maine-based fire investigation and analysis

2

It is therefore unnecessary (for now at least) to resolve
the parties’ intense dispute about the timeliness of the
defendants’ motions to exclude Simard and Thomas. MMG has moved
to strike those motions by filing two separate motions of its
own, while the defendants have filed two more motions, each
seeking to allow the filing, nunc pro tunc, of one of its motions
to exclude. MMG’s motions to strike, and the defendants’ motions
to allow the filings of the motions to exclude, are all denied as
moot, since the defendants’ original motions to exclude Simard
and Thomas are denied on the merits.
10

consultancy, Fire & Explosion Investigation, Inc., and holds a
number of licenses or certifications as a fire investigator,
including from the state of Maine, the International Association
of Arson Investigators, and the National Association of Fire
Investigators.

He also holds an undergraduate degree in fire

science and has attended numerous courses and seminars on fire
investigation over the past 20 or so years.
The defendants nevertheless argue that Simard is unqualified
to opine as to the origin of the fire in this case due to a “lack
of expertise with respect to fires where the suspected cause is
electric energy.”3

But Simard testified at his deposition that

he has, in fact, investigated electrical fires (as one would
expect of someone who has investigated hundreds of fires) as well
as taken courses in investigating fires where the suspected cause
is an electrical appliance.

In any event, while a witness

offering opinions under Rule 702 “should have achieved a
meaningful threshold of expertise in the given area,” he need not
possess “overly specialized knowledge.”

3

Levin v. Dalva Bros.,

The defendants also point out that, prior to now, Simard
“has only testified twice” and “never been qualified as an expert
witness on the subject of [fire] origin and cause investigations
. . . in a civil case.” The court is at a loss to see what this
says about Simard’s “knowledge, skill, experience, training, or
education” in the subject-matter of his testimony under Rule 702.
That rule, after all, requires a witness giving opinion testimony
on a subject to be an expert in the field--not to be an expert at
being a witness.
11

Inc., 459 F.3d 68, 78 (1st Cir. 2006) (quotation marks omitted).
So the fact that Simard is an expert in investigating fires in
general, rather than in investigating electric fires
specifically, does not disqualify him from opining that the fire
at issue here originated from an electrical source.

See Warford

v. Indus. Power Sys., Inc., 553 F. Supp. 2d 28, 34 (D.N.H. 2008)
(ruling that witness’s many years of investigating maritime
accidents qualified him to opine that defendants’ actions had
caused an electrical fire on a vessel, despite his lack of
“experience or training in electrical matters”).
The defendants’ objection to Simard’s anticipated testimony
as “biased, speculative, and therefore, unreliable” fares no
better.4

The defendants mention three alleged deficiencies in

Simard’s methodology:
(a) he did not account for the shelf from the
entertainment center that held the television;
(b) he identified neither “the first material ignited
nor the ignition sequence;” and
(c) he did not employ “re-creatable” testing of his
theory of the fire’s origin.

4

The defendants do not explain what they mean when they say
Simard’s opinion is “biased,” or how, in any event, that would
disqualify him from offering it under Rule 702. It is true that
MMG hired Simard (through his employer) to investigate the fire,
and now wants him to testify as to the results of his
investigation at trial, but that sort of “bias” is present with
nearly every retained expert, and, of course, can be fully
explored by the defendants in cross-examining Simard.
12

Based on these alleged flaws, the defendants attempt to
characterize Simard’s approach as inconsistent with the National
Fire Protection Association’s Guide for Fire and Explosion
Investigations, known as NFPA 921 and generally recognized as a
reliable methodology for investigating the cause of fires.

See

Adams v. J. Meyers Builders, Inc., 671 F. Supp. 2d 262, 273
(D.N.H. 2009).
The court finds the defendants’ characterizations strained.
They fall well short of rendering inadmissible Simard’s opinion
that the fire originated in either the cable box or the home
theater.

Specifically,

(a) even if Simard was wrong in assuming that the shelf
holding the TV had been consumed in the fire (as noted
supra, Thomas’s interpretation of one of Cady’s photos
suggests that at least part of the shelf survived), it
does not follow that his opinion as to the fire’s
origin is based on the “absence of evidence,” in
violation of NFPA 921. In fact, as discussed supra,
Simard’s opinion is based principally on the presence
of burn marks on the left side of the partition on the
shelf below the television, where the cable box and
home theater were located;
(b) Simard identified the origin of the fire, not its
cause--as he explained, he left that to Thomas--so it
strikes the court as not particularly important that
Simard did not identify the ignition source or the
first material ignited, particularly in the absence of
any well-supported, or even well-developed, argument by
the defendants on this point; and
(c) as this court has previously noted, NFPA 921
specifically contemplates that testing of a fire
investigator’s hypothesis “may be either cognitive or
experimental,” so that a fire investigator’s failure to
employ “re-creatable testing” in reaching a conclusion
13

does not render it unreliable, Adams, 671 F. Supp. 2d
at 273 (quoting and adding emphasis to NFPA 921 and
citing cases).
Despite these alleged flaws, then, the court finds that Simard’s
anticipated testimony as to the origin of the fire is based upon
sufficient facts or data, and is the product of reliable
principles and methods which he has applied reliably to the facts
of the case.

See Fed. R. Evid. 702.

The defendants’ motion to

preclude Simard’s testimony is denied without prejudice to their
objecting to his testimony later in the proceedings.
2.

Thomas

The defendants argue that Thomas is unqualified to opine
that the fire was “a result of a component failure/overheating of
the power supply” in the home theater unit because Thomas lacks
experience in evaluating “consumer electronic products or
electric appliances.”

This argument fails for lack of merit.

Thomas, who has worked as a forensic engineer since 1991,
testified that he handled fire cases “right from the beginning,”
including fire cases that involved appliances.

He has also

worked in research and development for two different companies,
testing and analyzing electrical products, and holds an
undergraduate degree in engineering science, with an emphasis in
mechanical and electrical engineering.

While emphasized by the

defendants, the facts that Thomas “cannot demonstrate . . . where

14

he has investigated fires of similar circumstances” or “has never
been involved in the design of a DVD player” do not disqualify
him from opining that the home theater was the cause of the fire
here, because Rule 702 does not demand such an exacting fit
between an expert’s experience and opinions.
supra.

See Part III.A.1,

The court rules that Thomas is qualified to render his

disclosed opinions in this case.
The defendants also argue that “Thomas’s methodology is
biased, speculative, and therefore unreliable.”5

Their principal

charge is that his theory that the fire started inside the home
theater system, which identifies the five-disc DVD tray inside
the system as the “initial fuel package,” fails to account for
the fact that portions of the tray survived the fire.

But, when

asked to explain this at his deposition, Thomas stated that a
fire requires “both a competent fuel source and a competent
supply of oxygen, and there’s only a limited supply of oxygen
within that unit.”
Rather than “fail[ing] the test of logic,” as the defendants
argue, this explanation seems consistent with this court’s
layman’s knowledge of fires--and, as already noted, the

5

As is the case with the defendants’ memorandum in support
of their motion to exclude Simard, see note 4, supra, the
defendants state in a subject heading of their memorandum in
support of their motion to exclude Thomas that his “methodology
. . . is biased,” but nowhere explain what they mean by that.
15

defendants do not rely on anything from their own expert to cast
doubt on Thomas’s explanation, let alone show that it is
unreliable.

Instead, the defendants simply assert that Thomas

“offered no explanation as to why there would be sufficient
oxygen to start the fire inside the [home theater system], but
not enough oxygen to allow all of the plastic carousel to burn.”
In fact, Thomas explained that the area of the carousel tray that
did not burn was “a dead zone from an oxygen flow standpoint”
because there was “very little in the way of venting over in that
area of case” enclosing the home theater’s components (which, as
discussed above, contained ventilation holes only in certain
spots).6

The defendants have offered nothing to suggest that

this theory is fundamentally inconsistent with accepted
principles of fire science so as to render Thomas’s opinions
inadmissible.

6

The defendants also complain that Thomas relied solely on
“deductive analysis” to arrive at this explanation but, as
already discussed, that is an acceptable methodology of fire
investigation under NFPA 921. See Part III.A.1, supra (citing
Adams, 671 F. Supp. 2d at 273). Furthermore, Thomas did test an
exemplar of the carousel tray, and found that it “lit and
maintained a fire.” At oral argument, the defendants protested
that Thomas had failed to reference this testing in his report
and, for that reason, should not be permitted to testify about it
at trial. But this court ordinarily does not consider points
made for the first time at oral argument. See Doe v.
Friendfinder Network, Inc., 540 F. Supp. 2d 288, 304 n.19 (D.N.H.
2008). If the defendants wish to press this objection, they
should raise it in a pre-trial motion in limine.
16

The defendants also suggest that the lack of evidence of
“arcing” inside the home theater system necessarily means that it
could not have served as the source of the fire.

The defendants

state that “[t]he fire investigation community considers the lack
of arcing in a burned appliance proof that the appliance was not
energized at the time of the fire.

If an appliance is not

energized at the time of the fire, it cannot be considered a
cause of the electrical fire.”

But the defendants fail to

provide any record support for this statement, and Thomas, for
one, disagrees with it--he testified that it “is typical to have
a fire that’s labeled as electrical and not have evidence of
electrical activity,” i.e., arcing.

Furthermore, despite the

defendants’ suggestion to the contrary, NFPA 921 does not require
evidence of arcing to support the conclusion that a fire was
electrical in nature.

Indeed, the very portions of NFPA 921

relied on by the defendants say that an investigator can rely on
other information to reach that conclusion, and recognize (as
Thomas testified) that “[a]bnormal electrical activity will
usually produce characteristic damage that may be recognized
after a fire” (emphases added).

Under the standards the

defendants themselves invoke, then, the lack of signs of arcing
does not make Thomas’s opinion unreliable.

17

The defendants’ remaining objections to Thomas’s methodology
are likewise without merit.

Specifically:

(a) the defendants criticize Thomas for failing to
realize that the printed circuit boards within the home
theater were made of flame-retardant material, but the
court is at a loss to see how that renders his opinion
unreliable, since he believes that the carousel tray,
rather than the circuit boards, was the initial fuel
for the fire;
(b) the defendants argue that “Thomas does not know
enough about the safety devices equipped in the” home
theater unit, specifically, a “switch mode power
supply,” but Thomas explained that this component would
not have prevented the fire from starting in the manner
he concludes it did, and the defendants have offered
nothing to suggest that this view is mistaken; and
(c) the defendants argue that Thomas “offered no
engineering analysis to explain why the DVD player was
a more likely candidate for the cause of the fire as
opposed to the TV, the Wii or the cable box,” but, in
fact, Thomas explained at his deposition that burn
patterns excluded the television and the Wii as sources
of the fire, while the cable box was excluded because
it “had no power sources in the affected area and the
power supply which was on the opposite side of the unit
remained generally intact.”
So the defendants’ criticisms of Thomas’s methodology, like their
criticisms of Simard’s methodology, serve at most as potential
areas of inquiry on cross-examination at trial.

They do not

render Thomas’s opinion that the fire resulted from “a component
failure/overheating of the power supply” in the home theater
system unreliable under Rule 702.

The defendants’ motion to

exclude Thomas’s testimony is denied without prejudice to their
objecting to his testimony later in the proceedings.
18

B.

Defendants’ motion for summary judgment
As noted at the outset, one of the bases for the defendants’

summary judgment motion is that Simard and Thomas cannot offer
expert testimony as to the cause and origin of the fire and that,
without this testimony, MMG cannot prevail on any of its claims.
The defendants are not entitled to summary judgment on this
basis, however, because, as just discussed, Simard and Thomas are
qualified to opine that the fire originated in the Samsung home
theater unit, due to an electrical failure there, and those
opinions are sufficiently reliable to be admissible at trial.
See Masello v. Stanley Works, Inc., 2011 DNH 061.
The defendants also seek summary judgment “as a sanction of
dismissal based on [MMG’s] spoliation of the evidence,”
particularly, its “mishandl[ing] of the fire scene.”

As a

“companion to” the spoliation doctrine, which “permits an adverse
inference from one side’s destruction of evidence,” a court has
the “inherent power” to sanction a party who has “improperly
altered or damaged” evidence.

Sacramona v. Bridgestone/

Firestone, Inc., 106 F.3d 444, 446 (1st Cir. 1997).

While the

authorized punishments for spoliation by a plaintiff include
dismissal of the case, the Court of Appeals has cautioned that it
“views dismissal with prejudice as a harsh sanction, which runs
counter to [its] strong policy favoring the disposition of cases

19

on the merits.”

Collazo-Santiago v. Toyota Motor Corp., 149 F.3d

23, 28 (1st Cir. 1998) (quotation marks omitted).
The defendants have not shown that the harsh sanction of
dismissal is appropriate here.

As an initial matter, it is not

clear from the defendants’ motion and supporting memorandum
precisely what evidence they accuse MMG of improperly altering or
destroying.

They point out that, by the time Long and Simard

inspected the scene, “emergency repair personnel had been inside
the house, and through the area of origin.”

But the presence of

“emergency repair personnel” in the aftermath of a house fire
strikes the court as unsurprising, if not inevitable, rather than
“improper.”

Furthermore, the defendants have not shown that the

presence of these people, in and of itself, “altered or damaged”
any evidence.

Sacramona, 106 F.3d at 446.

The defendants suggest that, based on a comparison of Cady’s
photographs of the scene to the testimony of MMG’s experts as to
what they observed upon their arrival, certain items that
survived the fire were missing, including the shelf that held the
television and some of the television’s components.

Putting

aside the fact that this is only one permissible view of the
evidence (another view, based on the materials presently before
the court, is that at least some of those items did not in fact
survive the fire), the defendants do not explain how MMG bears

20

any responsibility for whatever firefighters, or other emergency
personnel, might have done to items involved in the fire before
MMG’s investigators had even arrived.

Nor, even more

importantly, have the defendants even tried to articulate any
prejudice they have suffered from the absence of the shelf and
components.

Just like MMG’s investigators, the defendants had

access to Cady’s photograph of the shelf, and the only evidence
in the record as to the significance of the television components
is Thomas’s testimony that their absence does not shake his
confidence that the television was not the source of the fire.7
The defendants also complain that Long and Simard
“process[ed] the evidence within the entertainment center,
improperly manipulating the artifacts suspected as the direct
cause of the fire . . . .

As a result, debris was lost, and it

will never be know [sic] whether Simard and/or Long discarded or
altered evidence.”

But this rather strong charge is

unaccompanied by any citation to the record which, so far as the
court can tell, does not support it.

7

Simard testified that he

At oral argument, the defendants suggested that the shelf
must have gone missing after the firefighters had left, but
before Long and Simard arrived, since Cady was able to take a
photograph of it--and that culpability for the lost shelf lies
with MMG based on its failure to secure the scene in the interim.
But, again, this is not the only plausible explanation for the
fate of the shelf and, even if it were, the defendants have not
show resultant prejudice sufficient to warrant dismissal of the
case as a sanction.
21

and Long “systematically cleared” the debris around the
entertainment center “via the layering method,” i.e., “removing
debris from the top down and observing the relative location of
artifacts.”

In this process, they removed “anything that looked

electrical, wiring or anything like that,” placing it in bags,
and leaving the rest of the debris, which was “structurerelated,” in place.

So Simard did not, contrary to what the

defendants say, “admit” to “improperly manipulating” any of the
debris, nor is there evidence that any of it was “lost” by MMG’s
investigators.

Rather, as just discussed, any “lost” debris

(such as the television shelf or television components) was
already missing by the time Long and Simard arrived.
Long and Simard did “admit” to encasing the entertainment
center itself in shrink wrap and moving it, together with the
debris they bagged, from the living room into the garage.

Simard

explained that they did this, however, so that the workers on the
site could secure the ceiling above.

As MMG points out, NFPA 921

specifically recognizes that “[p]hysical evidence may need to be
moved prior to the discovery of the cause of the fire,” including
to “ensure that it is protected from further damage.”

Indeed,

NFPA 9221 provides that “[i]n and of itself, such movement of
evidence or alteration of the scene should not be considered
spoliation of evidence.”

The defendants have not questioned

22

Simard’s claimed need to move the entertainment center, nor, more
importantly, have they offered anything (beyond a conclusory
assertion) to show that this prejudiced their ability to conduct
their own investigation into the fire--an investigation which
began the very next day, after Long and Simard identified Samsung
as the manufacturer of one of the appliances at the site of the
fire’s origin and the company dispatched both an investigator and
an attorney to the scene.

If the movement of the entertainment

center, or anything else Long and Simard did, hampered the
defendants’ investigation in any way, one would expect them to
explain how, e.g., through an affidavit from their own expert.
The absence of any such evidence makes the defendants’ spoliation
argument more or less impossible for this court to accept.
As the defendants recognize, “of particular importance when
considering the appropriateness of [spoliation] sanctions [are]
the prejudice to the non-offending party and the degree of fault
of the offending party.”

Collazo-Santiago, 149 F.3d at 28.

While, contrary to MMG’s argument, “bad faith is not essential”
to imposing a spoliation sanction, the defendants have failed to
attribute even “carelessness” to MMG in its handling of the fire
scene.

Sacramona, 106 F.3d at 447.

23

Nor, even more importantly,

have the defendants even attempted to show any prejudice.8

So

their motion for summary judgment based on MMG’s alleged
spoliation of evidence is denied.

If the defendants wish, they

may request an instruction at trial informing the jury that they
may draw an adverse inference from MMG’s spoliation.

See, e.g.,

Booker v. Mass. Dep’t of Pub. Health, 612 F.3d 34, 45-47 (1st
Cir. 2010).

As with any other requested instruction, of course,

the court will give it only if it is consistent with controlling
law and supported by the evidence.
IV.

Conclusion
For the foregoing reasons, the defendants’ motions to

preclude Simard9 and Thomas10 from testifying, and the defendants’
motion for summary judgment,11 are DENIED.

8

MMG’s motions to

This court is sensitive that “‘courts must not hold the
prejudiced party to too strict a standard of proof regarding the
likely contents of the destroyed evidence because doing so allows
the spoliators to profit from the destruction of evidence.’”
Rockwood v. SKF USA, Inc., 2010 DNH 171, 22 (quoting Se. Mech.
Servs., Inc. v. Brody, 657 F. Supp. 2d 1293, 1300 (M.D. Fla.
2009)). Here, however, the defendants have not even ventured an
explanation as to how they might have been prejudiced by MMG’s
handling of the fire scene; instead, they seem to take the
position that any manipulation of the scene before their
investigator arrived entitles them to dismissal of the case.
That is not the law of spoliation in this circuit.
9

Document no. 27.

10

Document no. 28.

11

Document no. 29.
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strike12 the defendants’ motions to preclude its experts and the
defendants’ motions13 for leave to file those motions are DENIED
as moot.

See note 1, supra.

SO ORDERED.

___________________________
Joseph N. Laplante
United States District Judge
Dated: April 16, 2013
cc:

Charles W. Grau, Esq.
Lisa Hall, Esq.
Michael S. McGrath, Esq.
Robert W. Upton, II, Esq.
Thomas DeMicco, Esq.
Christopher P. Flanagan, Esq.

12

Document nos. 34-35.

13

Document nos. 51-52.
25