Frankenmuth Mutual Insurance Company v. Ohio Edison Company

Filing 34

Order denying Plaintiff's Motion to exclude expert testimony (Related Doc # 21 ). Ohio Edison's expert, Robert Kimmick, is qualified to testify under Federal Rule of Evidence 702. Judge John R. Adams on 10/4/18.(K,C)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF OHIO
EASTERN DIVISION
FRANKENMUTH MUTUAL
INSURANCE COMPANY,
Plaintiff,
v.
OHIO EDISON COMPANY,
Defendant.

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Case No. 5:17CV2013
JUDGE JOHN R. ADAMS

ORDER

This matter is before the Court on the motion of Plaintiff Frankenmuth Mutual Insurance
Company (“Frankenmuth”) to exclude testimony by Defendant Ohio Edison Company’s (“Ohio
Edison”) expert, Robert Kimmick (Doc. 21). The Court has considered the motion and the
opposition thereto. For the following reasons, the motion is DENIED.
I.

BACKGROUND
This matter arises from a fire that occurred on December 12, 2016 at the Everett building

located at 39 East Market Street, Akron, Ohio (the “Everett building”). The fire damaged both
the Everett building and the adjacent Hermes building located at 43 East Market Street (the
“Hermes building”). Both the Everett building and the Hermes building are owned by Pointe
View, Ltd. (“Pointe View”) and insured by Frankenmuth. See Amended Compl. ¶¶ 6-7. Ohio
Edison supplied electricity and electrical services to both the Everett building and the Hermes
building. Id. at ¶¶ 8-9.
The fire originated from within a wall-mounted power tap box located in the basement
electrical room of the Everett building. See id. at ¶ 11. The power tap box contained the Ohio
Edison conduit and secondary power supply lines (also known as phase conductors) which were
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connected inside the power tap box to wiring which then ran from the power tap box to various
connections in the basement electrical room in order to supply electric power to the Everett
building. See id. at ¶ 15. The post fire loss investigation revealed that the fire was caused by the
failure of the power supply line wiring and connections within the power tap box.
Indeed, it is uncontested that the Everett building fire originated in the area of the power
tap box in the southwest corner of the building’s basement. Also, Frankenmuth and Ohio Edison
do not dispute that the fire was caused by an electrical arcing event. The parties do not dispute
that water intrusion was the initiating event. It is likewise uncontested that the basement electric
room showed significant signs of water damage over time The only issue in dispute between the
parties’ experts regarding the cause of the fire is whether the fire was more likely caused by a
physical change to or around the box caused by water emanating from the basement walls,
ceiling and overall environment (as Kimmick concludes), or water that had run into the box from
conduits outside the building, causing the power supply line wiring and connections in the power
tap box to become worn and frayed, resulting in an electrical arcing fault and the ensuing fire (as
Frankenmuth contends).
Frankenmuth now seeks subrogated recovery against Ohio Edison for the damages
sustained by its insured Pointe View, for which Frankenmuth paid Pointe View pursuant to the
insurance policy Frankenmuth issued to Pointe View. See id. at ¶¶ 25-28. Frankenmuth pursues
recovery on the alleged basis that Ohio Edison failed to properly investigate, inspect, address,
repair and replace the power tap box, and the power supply wiring and connections within the
power tap box, when Ohio Edison was called to the Everett building and went into the basement
electrical room during the week prior to the fire in response to reports of smoke and flickering

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lights. See id. at ¶¶ 16-24. Frankenmuth argues that, in doing so, Ohio Edison failed to
recognize and address the conditions which led to the electrical fault and subsequent fire. See id.
Frankenmuth now seeks to exclude the testimony of Ohio Edison’s expert, Kimmick,
under Federal Rule of Evidence 702. The Court turns to the merits of that motion.
II.

LEGAL STANDARD
Expert testimony is admissible if it meets the requirements of Federal Rule of Evidence

702. The rule states:
If a 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. The Sixth Circuit has interpreted Rule 702 to impose three requirements:
“First, the witness must be qualified by knowledge, skill, experience, training, or education.
Second, the testimony must be relevant, meaning that it will assist the trier of fact to understand
the evidence or to determine a fact in issue. Third, the testimony must be reliable.” U.S. ex rel.
Tenn. Valley Auth. v. 1.72 Acres of Land in Tenn., 821 F.3d 742, 749 (6th Cir. 2016) (quoting In
re Scrap Metal Antitrust Litig., 527 F.3d 517, 528-29 (6th Cir. 2008)) (internal quotations
omitted). Furthermore, “rejection of expert testimony is the exception, rather than the rule.” Id.
III.

DISCUSSION
Kimmick has authored a written report and testified at deposition. (Exs. 23-9; 23-10.)

Kimmick’s opinions address three main issues: (1) the origin and cause of the fire, (2) alleged
fire and electric code violations, and (3) Ohio Edison’s adherence to electric utility company
standards of care. (See id.) Kimmick concluded that the most likely cause of the fire was a
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physical impingement of conductors caused by movement of the junction box, which movement
itself was caused by the rotting of the plywood backing onto which the box was attached. (See
id.) Kimmick opined that the water damage did not come from the manhole or the conduit line,
but from the foundation of the Everett building and dripping from the ceiling. (See id.)
Kimmick also opines that Frankenmuth’s insured, Pointe View, allegedly violated fire and
electric code provisions, thereby contributing to the spread of the fire and preventing earlier
detection of the problems with the power tap box and the wiring and connections within it. (See
id.) According to Kimmick, Pointe View did not provide sprinkler protection above the
suspended ceiling in the Everett building electrical room, and did not install fire stops in the pipe
chase within the basement electrical room. (See id.)
Frankenmuth first argues that Kimmick’s testimony should be precluded under Rule 702
because he is not qualified to offer expert opinions on any of the issues for which he offers them.
(Doc. 21-1, p. 10.) Specifically, Frankenmuth argues that: (1) Kimmick was not a certified fire
and explosive investigator when he conducted his investigation for purposes of determining the
origin and cause of the fire; (2) Kimmick has never been qualified, and has never testified, as a
fire origin and cause expert; (3) Kimmick is not a fire protection engineer and has only
participated in the design/modification of one fire protection system; and (4) Kimmick has no
training, background, or experience working for any electrical utility. The Court disagrees that
these issues prevent Kimmick from qualifying as an expert under Rule 702.
The pertinent question regarding Kimmick’s qualifications is whether his testimony “is
about matters growing naturally and directly out of research [he has] conducted independent of
the litigation[.]” Buck v. Ford Motor Co., 810 F. Supp. 2d 815, 842 (N.D. Ohio 2011) (finding
licensed civil engineer with work experience in highway and traffic engineering, accident

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reconstruction, and human driver error was qualified to testify about automotive gas pedal error).
Here, Kimmick has both a bachelor’s and master’s degree in electrical engineering, which
qualifies him to investigate an electrical fire. (Doc. 23-1, p. 1.) Further, Kimmick is a registered
Professional Engineer in Ohio, Pennsylvania, West Virginia, South Carolina and Kansas. (Id.)
During his career as an electrical engineer, Kimmick has led the design of several fire protection
systems. (Kimmick Dep. at 54:7-58:7.) He was in the process of acquiring his official Certified
Fire and Explosion Investigator designation around the time the Everett building investigation
began, and has now acquired it. Kimmick taught a course on electrical evidence in fire
investigations for the Pennsylvania State Police. (Doc. 23-1, p. 3.) He has studied the relevant
National Fire Protection Association sections concerning fire protection systems. (Doc. 23, p. 3.)
It is evident that Kimmick’s testimony in this matter is rooted in his education,
experience, and research outside of this litigation. Accordingly, he is not precluded from offering
expert testimony under Rule 702. Frankenmuth’s argument that Kimmick’s experience must
include prior instances of giving expert testimony is not supported in the case law, and is not
well-taken. Kimmick’s background as an electrical engineer, and his experience inspecting and
engineering fire protection systems to meet code qualifies him as an expert in this case.
(Kimmick Dep. at 54:12-55:3.)
Moreover, it is undeniable that Kimmick’s testimony is relevant as is required under Rule
702. An expert’s testimony is relevant if it “will help the trier of fact to understand the evidence
or determine a fact issue.” In re Ford Motor Co. Spark Plug and 3-Value Engine Prods. Liab.
Litig., 98 F. Supp. 3d 919, 922 (N.D. Ohio 2014). The cause of the basement fire is a fact at
issue in the case. How the fire developed, and how the prospective damage allegedly went
unmitigated by the building’s fire system also is an issue. Kimmick’s expert testimony will help

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the fact-finder understand the complex circumstances which led to the electrical fire.
Accordingly, Kimmick’s testimony is relevant.
Frankenmuth also argues that Kimmick’s conclusions are not reliable because they are
not based on sufficient facts or data. (Doc. 21-1, p. 14-15.) Although the basis for this
contention is somewhat unclear, it appears that Frankenmuth faults Kimmick at least in part for
allegedly unreliable metallurgical testing and that he allegedly did not “interview key witnesses
or identify any documents in support of his opinion about alleged code violations.” (Id., p. 8.)
Neither argument is persuasive.
First, in addition to relying on metallurgical tests to reach his conclusions regarding the
cause of the fire, Kimmick appears to have relied on much of the same facts and data that
Frankenmuth’s expert relied on. These include inspections and examinations at the Everett
building fire scene, inspection of debris removed from the scene, review of documents and
photographs exchanged in discovery, and the depositions in the case.
Kimmick also explained the bases for his criticism of Plaintiff’s experts’ conclusions that
water invaded the electrical tap box from outside pipes that fed the conductors to the building.
He observed that a foam seal was evident on the manhole end of the conduits. He noted the lack
of corrosion on the floor of the tap box (which he claims would have occurred had condensation
leaked through the manhole and underground conduits). He noted the remnants of foam sealing
placed on the building side. He explained how rust on numerous pieces of equipment was
consistent with water coming from other sources. He described the water-rotted plywood piece
that held the tap box in place and the corroded anchors from the tap box. (Doc. 21-9, pp. 6-9.)
Thus, Kimmick’s conclusions are based on a number sufficient facts to be admitted as expert
testimony under Federal Rule of Evidence 702.

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Moreover, contrary to Frankenmuth’s apparent assertion, Kimmick reviewed the Akron
Fire Department incident report and accompanying photographs, along with transcripts of the
depositions of various witnesses. (Id. at pp. 1-2.) It is untrue that he did not review any
document from the Akron Fire Department. Furthermore, he explicitly noted that he included
testimony from the witnesses in his analysis.
Likewise, Kimmick’s observations about deficiencies in the building’s fire protection
system are based upon a straightforward reading of the relevant industry standards. This is a
reading an engineer could make.
Similarly, Kimmick’s testimony regarding the lack of a standard in the electrical utility
industry for how to respond to a customer service call appears to be based in his knowledge of
the relevant National Electric Code, National Electric Safety Code, and National Fire Protection
Association standards. Kimmick can testify regarding whether any of the codes or standards
prescribe an action to be taken by a utility when a customer calls with a report of smoke from the
day before.
Kimmick’s report and conclusions are not excludable under Rule 702 as unreliable. They
are based on sufficient facts and data obtained from his expert observations and knowledge, Fire
Department records, and sworn testimony of several witnesses.
Frankenmuth is free to cross-examine Kimmick regarding any perceived deficiencies in
his expertise, investigation, or analysis. These alleged deficiencies bear on the weight of
Kimmick’s testimony. However, they do not preclude Kimmick from offering expert testimony
at the trial of this matter. For the reasons discussed, Kimmick may testify in this case as an
expert qualified under Federal Rule of Evidence 702.
IV.

CONCLUSION

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For the reasons stated, Frankenmuth’s motion to exclude expert testimony (Doc. 21) is
DENIED. Ohio Edison’s expert, Robert Kimmick, is qualified to testify under Federal Rule of
Evidence 702.

IT IS SO ORDERED.
s/John R. Adam______________________
JOHN R. ADAMS
UNITED STATES DISTRICT JUDGE
DATED: ____10/4/2018__________

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