DALTON et al v. MCCOURT ELECTRIC LLC et al

Filing 123

MEMORANDUM. SIGNED BY HONORABLE EDUARDO C. ROBRENO ON 7/7/2015. 7/7/2015 ENTERED AND COPIES MAILED TO COUNSEL AND E-MAILED.(amas)

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
DONALD DALTON, et al.,
Plaintiffs,
v.
MCCOURT ELECTRIC LLC, et al.,
Defendants.

:
:
:
:
:
:
:
:
:

CIVIL ACTION
NO. 12-3568

M E M O R A N D U M
EDUARDO C. ROBRENO, J.

July 7, 2015

This case sparked to life with a fire that occurred in
the home of Donald and Loris Dalton (“Plaintiffs”) and caused
substantial losses to their real and personal property--losses
Plaintiffs attribute to both Intermatic, Inc. (“Intermatic”), the
company that manufactured certain electronic components involved
in this case, and McCourt Electric, LLC (“McCourt”), the
contractor that installed said components.1 Plaintiffs brought
suit against Intermatic and McCourt, and Intermatic filed a
Daubert motion to exclude Plaintiffs’ liability expert, Michael
Wald. For the reasons that follow, the Court will deny the
Daubert motion to exclude Mr. Wald’s expert testimony at trial.

1

Plaintiffs reached a confidential joint tortfeasor
settlement with McCourt in November 2013--although McCourt
technically remains a party to the action. See Pls.’ Mem. Supp.
Resp. Mot. Summ. J. 4, ECF No. 110.

I.

FACTUAL BACKGROUND2
After Mr. and Mrs. Dalton purchased their home in the

spring of 2006, see Daubert Mot. Ex. B, Donald Dalton Dep.
26:10-24, May 28, 2013, ECF No. 98 [hereinafter Dalton Dep.],
Mr. Dalton purchased four Intermatic ML600TW Power Packs (“Power
Packs”)--devices used to reduce current for low-level exterior
lighting, see Daubert Mot. ¶ 5--for Leslie McCourt (“Mr.
McCourt”) to install. See Dalton Dep. 58:2-8. Without opening
the packaging containing the Power Packs or examining their
contents, Mr. Dalton simply left them in his basement until Mr.
McCourt arrived to install them. Id. 58:13-21.
Mr. McCourt installed each Power Pack in the basement
and connected the wires3 for the Power Pack that is the subject
of the instant litigation, while Mr. Dalton connected the wires
to the other three Power Packs. Id. 67:16-68:20. When Mr. Dalton
connected the wiring on the three Power Packs he set up, he
reviewed the instructions regarding the wattage capacity limits
of the Power Packs on the outside of the box that contained the
Power Packs, but he did not read any material found inside the

2

The following undisputed facts are drawn from
Plaintiffs’ Amended Complaint, Defendants’ Daubert motion, and
Plaintiffs’ response to said motion.
3

Mr. McCourt connected the wires of the Power Pack to
the “up-lights” that shined upon the exterior of the house. See
id. 34:17-35:9, 67:21-68:6.
2

box. Id. 81:2-82:9. Until 2012, Mr. Dalton did not experience any
issues with the functioning of the Power Packs. Id. 83:14-84:10.
On March 9, 2012, however, Mr. Court was startled by
the sound of the smoke alarms going off in his house, and by the
discovery of smoke emanating from the basement. Id. 102:10-16,
106:7-107:6. Upon entering the basement, Mr. Dalton observed
sparks and flames in the area around the subject Power Pack. Id.
107:14-108:5. Ultimately, the fire “resulted in substantial
injury and loss as to the Plaintiffs’ real and/or personal
property.” Am. Compl. ¶ 7, ECF No. 38.
Soon after the incident, Plaintiffs retained the
services of Mr. Wald of IEI Consulting, Inc., to determine the
cause of the fire. See Daubert Mot. Ex. C, Wald Report 1
[hereinafter Wald Report]. Based on his examination of the site
on April 6, 2012, Daubert Mot. Ex. D, Michael Wald Dep. 89:5-21,
July 22, 2014 [hereinafter Wald Dep.], and on his artifact
inspection on May 21, 2012, id. 93:2-95:11, Mr. Wald opined that
there “were no other electrical failures which could have caused
this fire other than the failure at the load terminal of the
timer.” Wald Report 1.
In describing why he found said cause “quite clear,”
Mr. Wald observed that “the section of metal bus that connects
one leg of the transformer output to one of the screw terminal
connections suffered a prolonged arcing failure.” Id. at 2.
3

According to Mr. Wald, “Arcing failures not only generate local
temperatures in the 3000-5000 degree Fahrenheit range, they also
produce molten metal which can drop onto combustible materials
below and ignite a fire. This is what happened in this
incident.” Id.

Mr. Wald laid out his reasoning in greater

detail in the following portion of his report:
The arcing event that occurred only involved one
leg of the transformer output. Thus, the cause of this
damage is what is known as in-line arcing. In-line
arcing occurs when a conductor breaks while current is
being drawn through it and electrons jump (arc) from
one side of the break to the other. The arc produces
plasma and the nearby burning plastics produce carbon.
Both of these cause a conductive atmosphere such that
the arc can continue, consuming portions of the
conductor as it travels. That is why a section of the
terminal bus is consumed. This bus broke while the
landscape lights were operating and arcing occurred.
The possibility that there was a loose connection at
the screw terminal that caused this arcing can
positively be eliminated since there is no arcing or
even melting at the stranded wiring at the screw
terminal. Thus it is concluded that the failure
originated in the section of bus below the screw
terminal end.
This section of bus is part of the original
construction of the timer. There is no evidence that
any excessive electrical loads were placed on this bus
since all of the downstream wiring and lights were in
good operating condition. Therefore it must
be
concluded that this bus was in a damaged condition
when this product was manufactured and sold. The cross
sectional area of the bus was so small that the bus
separated while only carrying a small load. Some
defect in this material must have existed, possibly a
crack or a bubble in the metal, or else the metal was
damaged during manufacture and assembly by Intermatic,
to ultimately result in this internal failure. It is
noted that this failure occurred in the area where the
bus turns (is bent) 90 degrees from horizontal to
4

vertical which would be a likely place for a crack to
form.
Id.
On July 22, 2014, and October 8, 2014, the parties
conducted Mr. Wald’s expert deposition. See Wald Dep. 1:11,
171:11. Prior to the first session of his deposition, Mr. Wald
was instructed to bring “[h]is entire case file and all
materials in his possession regarding the above matter, including
all artifacts”; prior to the second session, the instruction was
elaborated to request materials “includ[ing], but [] not limited
to, all literature, studies, testing, evidence and documentation
of testing, that support the opinions and conclusions [Mr. Wald]
has offered, and any and all other documents and materials, by
whatever name known, that Mr. Wald contends support his opinions
and/or conclusions and report(s) in this matter.” Daubert Mot.
Ex. E, Dep. Notices.
On each occasion, Mr. Wald testified that he brought
the entire contents of his file, see Wald Dep. 8:23-15:23,
178:20-179:21--except for a “little diagram of the [Dalton’s]
house” that he could not find, which he thought did not have
“any real relevance,” id. 15:5-23. Mr. Wald’s file included,
inter alia, his “current bio,” billing records, photographs, his
investigative reports on the fire, and “a CD of all the
electronic files that were transmitted to [him]” in connection

5

with this case. Id. 10:24-11:16. Mr. Wald did not bring any
notes--as he claimed he had not taken any during the course of
his investigation, either by hand or electronically, id. 15:2416:15--nor did he provide any testing results or industry
literature that he relied upon in his investigation. Accordingly,
Mr. Wald confirmed that the sole bases for the opinions contained
in his report were the photographs, his own observations, his
past forensic work, and well-established and thoroughly tested
principles of science, rather than any further experimentation
or consultation of literature or standards. See id. 106:13-109:5.

II.

PROCEDURAL HISTORY
Plaintiffs filed a complaint on June 25, 2012,

asserting the following claims: (1) negligence by Intermatic
(Count I); (2) negligence by McCourt (Count II); (3) strict
products liability against both Intermatic and McCourt (Count
III); (4) breach of implied warranties against Intermatic (Count
IV); and (5) breach of implied warranties against McCourt (Count
V). Compl. ¶¶ 13-40, ECF No. 1. On March 19, 2013, Magistrate
Judge Thomas J. Rueter permitted Plaintiffs to file an amended
complaint to add a claim of interference with enjoyment of real
property. ECF No. 37; see Am. Compl ¶¶ 16, 21, 31, 37, 44. On
December 5, 2015, however, Plaintiffs stated that “[w]hen [they]
proceed to trial in this matter they will be limiting their
6

claims . . . [to] assert a claim only against defendant
Intermatic on a claim for strict product liability.” Pls.’ Resp.
Mem. 8, ECF No. 115.4
Intermatic filed a motion for summary judgment (ECF
No. 99), as well as a Daubert motion to preclude Plaintiffs’
liability expert, Mr. Wald, from testifying (ECF No. 98).
Intermatic also filed a third-party complaint on December 17,
2013, which alleges that Deltran Corp. (“Deltran”) manufactured a
defective component part of the Intermatic device that allegedly
caused the fire.5 ECF No. 59. Deltran in turn filed a fourthparty complaint against Thyssen Krupp Materials NA (“Thyssen”)
on March 20, 2014, which asserts that liability should shift to
Thyssen, as the supplier of the brass used in the allegedly
defective component of the Power Pack. ECF No. 75. In response
to Deltran’s fourth party complaint, Thyssen filed a motion for
summary judgment or, in the alternative, a motion for leave to
file a fifth-party complaint against a company named PMX
Industries. ECF No. 102. In the motion, Thyssen asserts that it
was prejudiced by the fact that Deltran failed to provide timely
4

As the pages of Plaintiffs’ response are not numbered,
the Court will refer to the page numbers imposed by ECF.
5

According to Plaintiffs’ expert report, the device
that caused the fire was an “Intermatic Power Pack,” which is a
small power source that can be used to power light timers.
Deltran allegedly manufactured the “load terminal” and “load bus”
contained in the Power Pack. See Third Party Compl. ¶¶ 10, 13,
ECF No. 59.
7

information indicating that PMX Industries may have actually
supplied the brass to Deltran. Both Deltran and Thyssen have
joined Intermatic’s Daubert motion. ECF Nos. 101, 103. The Court
held a hearing on the motion for June 8, 2015. The Defendants’
Daubert motion is ripe for disposition

III. LEGAL STANDARD
Federal Rule of Evidence 702, which governs the
admissibility of expert testimony, provides:
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
principles and methods; and

product

of

reliable

(d)
the
expert
has
reliably
applied
the
principles and methods to the facts of the case.
In Daubert v. Merrell Dow Pharmaceuticals, Inc., the
Supreme Court described the gatekeeping role district courts
play under Rule 702 in “ensur[ing] that any and all scientific
testimony or evidence is not only relevant, but reliable.” 509
U.S. 579, 589 (1993). When “[f]aced with a proffer of expert
scientific testimony . . . the trial judge must determine at the
8

outset, pursuant to Rule 104(a), whether the expert is proposing
to testify to (1) scientific knowledge that (2) will assist the
trier of fact to understand or determine a fact in issue.” Id.
at 592. This gatekeeping function “applies not only to testimony
based on ‘scientific’ knowledge, but also to testimony based on
‘technical’ and ‘other specialized’ knowledge.” Kumho Tire Co.
v. Carmichael, 526 U.S. 137, 141 (1999).
As interpreted by the Third Circuit, Rule 702 provides
“three distinct substantive restrictions on the admission of
expert testimony: qualifications, reliability, and fit.” Elcock
v. Kmart Corp., 233 F.3d 734, 741 (3d Cir. 2000). The proponent
of the expert testimony bears the burden of establishing that
the proffered testimony meets each of the three requirements by
a preponderance of the evidence. See Padillas v. Stork–Gamco,
Inc., 186 F.3d 412, 418 (3d Cir. 1999). The Third Circuit has
emphasized that not only do the Rules of Evidence generally
“embody a strong preference for admitting any evidence that may
assist the trier of fact,” but Rule 702 specifically “has a
liberal policy of admissibility.” Pineda v. Ford Motor Co., 520
F.3d 237, 243 (3d Cir. 2008) (quoting Kannankeril v. Terminix
Int’l, Inc., 128 F.3d 802, 806 (3d Cir. 1997)) (internal
quotation marks omitted).
The first requirement, whether the witness is
qualified as an expert, has been interpreted liberally to
9

encompass “a broad range of knowledge, skills, and training.” In
re Paoli R.R. Yard PCB Litig., 35 F.3d 717, 741 (3d Cir. 1994).
Under the second requirement, that of reliability, when the
expert testifies to “scientific knowledge,” the expert’s
opinions “must be based on the ‘methods and procedures of
science’ rather than on ‘subjective belief or unsupported
speculation’; the expert must have ‘good grounds’ for his or her
belief.” Id. at 742 (quoting Daubert, 509 U.S. at 590). In
considering whether there are “good grounds” for the expert’s
opinions, courts often look to a number of factors, such as:
(1)
whether
a
method
consists
of
a
testable
hypothesis; (2) whether the method has been subject to
peer review; (3) the known or potential rate of error;
(4) the
existence
and
maintenance
of
standards
controlling the technique’s operation; (5) whether the
method is generally accepted; (6) the relationship of
the technique to methods which have been established
to be reliable; (7) the qualifications of the expert
witness testifying based on the methodology; and
(8) the non-judicial uses to which the method has been
put.
Id. at 742 n.8. This list of factors “is non-exclusive,”
however, and “each factor need not be applied in every case.”
Elcock, 233 F.3d at 746. As the Supreme Court in Kumho Tire
noted, the district court “must have considerable leeway in
deciding in a particular case how to go about determining
whether particular expert testimony is reliable. That is to say,
a trial court should consider the specific factors identified in
Daubert where they are reasonable measures of the reliability of
10

expert testimony.” 526 U.S. at 152.
The final prong of the Third Circuit’s Rule 702
analysis requires that the expert testimony “‘fit,’ in that it
must assist the trier of fact. Admissibility thus depends in
part upon ‘the proffered connection between the scientific
research or test result to be presented and particular disputed
factual issues in the case.’” Oddi v. Ford Motor Co., 234 F.3d
136, 145 (3d Cir. 2000) (citation omitted) (quoting In re Paoli,
35 F.3d at 743). The Third Circuit has stressed that
[t]his [“fit”] standard is not intended to be a high
one, nor is it to be applied in a manner that requires
the plaintiffs ‘to prove their case twice--they do not
have to demonstrate to the judge by a preponderance of
evidence that the assessments of their experts are
correct,
they
only
have
to
demonstrate
by
a
preponderance of evidence that they are reliable.”
Id. (quoting In re Paoli, 35 F.3d at 744). This “fit” requirement
essentially means that “even if an expert’s proposed testimony
constitutes scientific knowledge, his or her testimony will be
excluded if it is not scientific knowledge for purposes of the
case.” In re Paoli, 35 F.3d at 743.

IV.

DISCUSSION
In their Daubert motion, Defendants do not contest Mr.

Wald’s qualifications; rather, they challenge the reliability and
fit of his testimony. The Court will treat each point in turn.
A.

Reliability
11

Defendants assert that “[d]ue to the lack of
methodology in the formulation of his expert report . . . and
the opinions contained therein, and the ipse dixit6 nature of
those opinions, any testimony at trial on the part of Wald is
unreliable and unfit for presentation to a jury in this matter.”
Daubert Mot. ¶ 1. Thus, Defendants conclude, Mr. Wald’s
testimony must be excluded. The Court is not persuaded.
Upon his investigation of the evidence, Mr. Wald
determined that there were only three hypotheses that could
explain the fire’s cause: (1) “an inherent manufacturing defect
of the terminal components . . . eventually malfunctioned”;
(2) “a loose or otherwise improper connection made by the
installer McCourt Electric to the terminal 6 years earlier . . .
eventually resulted in the overheating of the connection and the
malfunction of the product”; or (3) “the Power[ ]Pack, wiring[,]
and components were overloaded with improper bulbs or other
electrical elements downstream.” Pls.’ Resp. Mem. 2. Plaintiffs
note that “these were the only three hypotheses suggested,
proposed, addressed or rebuked by any of the parties or their
experts to explain this malfunction”--and the third hypothesis
“was reviewed by Wald and defendant’s expert and disregarded as
the load was deemed well within proper limits.” Id. at 2 n.1.

6

Latin for “he, himself, said it.”
12

Defendants do not dispute this.
The components in question “are all internal to the
Power[ ]Pack and cannot be viewed unless the Power[ ]Pack is
disassembled.” Id. at 3. The five components consist of:
(1) internal wiring affixed to a (2) screw that is connected to
the end of the long side of an (3) L-shaped brass terminal, on
the short side of which is another (4) screw that is clamped
down on (5) external wiring that leads out of the Power Pack.
See id. The melting that occurred in connection with the subject
fire completely consumed half of the long side leading up to the
ninety degree bend of the terminal--including the bend area
itself--as well as much of the short arm of the terminal. See
id. Thus, the Court is confronted with two proffered possible
causes of the fire, mere millimeters apart: either a
manufacturing defect existed in metal of the long side or near
the bend of the terminal, or installer error occurred in the
affixing of the wire with the screw on the short side of the
terminal. Plaintiffs and their expert assert the former;
Defendants and their experts the latter.
In essence, Defendants’ argument is summed up in their
claim that “the methodology used by Wald to arrive at his
opinions in this case satisfies almost none of the[] factors”
laid out by the Third Circuit in In re Paoli:
(1)

testable

hypothesis--he
13

has

not

performed

any

testing and his lack of testing disproves his
conclusion; (2) peer review--not performed; (3) known
or potential rate of error--none offered and/or is
unknown; (4) standards controlling the technique’s
operation--none; (5) method is generally accepted--no
such
evidence
exists;
(6)
relationship
of
the
technique to methods which have been established to be
reliable--not shown.
Defs.’ Br. Supp. Daubert Mot. 12, ECF No. 98 [hereinafter Defs.’
Br.]. The Third Circuit has offered these factors to guide a
court’s reliability inquiry under Daubert; however, the Third
Circuit has also emphasized that although said list of factors
is a “convenient starting point,” it is “neither exhaustive nor
applicable in every case.” Kannankeril, 128 F.3d at 806–07.
In reaching his conclusion, Mr. Wald reviewed the
physical evidence, inspecting the remains of the products and
examining the site of the fire. Importantly, Mr. Wald eliminated
the possibility of installer error--at least in his opinion--in
his examination of the evidence, given such factors as the
destruction of the long side of the terminal (relatively far
from the screw connection that Defendants allege was loose), see
Wald Dep. 126:6-18, the “visibly tight” nature of the stranded
wire still tucked up against the exterior screw connection, id.
98:11-99:24, and the absence of substantial melting or arcing
damage on the stranded wires, see Wald Report 2.
Thus, although Mr. Wald’s ability to test his own
defect hypothesis was limited by the destruction of the very

14

evidence that might have supported it, he could also support his
conclusion by ruling out the only other available theory of
loose wiring installation. In his own words, Mr. Wald avowed
that he applied the scientific method7 in “identify[ing] the
potential sources of ignition in [the] area, . . . eliminat[ing]
the ones that can be eliminated, and if you are left with one,
then you have identified the source of ignition for the fire.”
Wald Dep. 109:14-18. Given the exceedingly narrow range of
possible causes in this case, and in light of the evidence Mr.
Wald cited against the “loose-connection theory,” the Court
finds the logic of his method to be sound.
Notably, according to what is termed the “malfunction
theory,” the Plaintiffs are not required to prove the precise
nature of the alleged defect. To prevail on a strict liability
claim under Pennsylvania law, a plaintiff must prove that
(1) the product was defective; (2) the defect was the proximate
7

Although Defendants assert that Mr. Wald failed to
proceed in accordance with the National Fire Protection
Association (“NFPA”) standard set forth in NFPA 921, the Court
finds that Mr. Wald adequately took a “systematic approach” and
applied the “scientific method” in his investigation. Daubert
Mot. Ex. F., NFPA 921 §§ 4.2-4.3. Indeed, Defendants’
dismissiveness of Mr. Wald’s reliance on “deductive reasoning,”
see Defs.’ Reply Br. 3, ECF No. 117, is somewhat at odds with
NFPA 921’s own affirmation of the important role deductive logic
plays in the scientific method. See Daubert Mot. Ex. F., NFPA
921 § 4.3.6. Moreover, § 4.3.6 recognizes that “[a] hypothesis
can be tested either physically by conducting experiments or
analytically by applying scientific principles in ‘thought
experiments.’” Id.
15

cause of the plaintiff’s injury; and (3) the defect existed at
the time the product left the manufacturer’s control. Barnish v.
KWI Bldg. Co., 980 A.2d 535, 541 (Pa. 2009). However, when a
product is destroyed or otherwise unavailable--as is often the
case with fire damage--the plaintiff may prove the defect’s
existence by circumstantial evidence of a malfunction. Id. Under
the malfunction theory of product liability, the plaintiff must
produce (1) “evidence of the occurrence of a malfunction,”
(2) “evidence eliminating abnormal use,” and (3) evidence
eliminating “reasonable[] secondary causes for the malfunction.”
Id. (quoting Rogers v. Johnson & Johnson Prods., Inc., 565 A.2d
751, 754 (Pa. 1989) (internal quotation marks omitted)).
Evidence supporting this theory relieves the plaintiff from the
obligation to pinpoint the precise defect, and indicates that
the alleged defect both caused the injury and existed when the
product left the manufacturer’s control. See id. at 542. This
malfunction theory closely aligns with the approach Mr. Wald
took in his investigation.
In reaching his conclusions, Mr. Wald drew upon “his
experiences investigating similar . . . fire scenarios over the
past 20+ years as a forensic electrical engineering consultant.”
Pls.’ Resp. Mem. 12. Mr. Wald testified that, over the years, he
has performed a number of arcing damage experiments involving
metal objects with degraded cross-sectional areas--and he has
16

observed melting and arcing results similar to what he believes
occurred in this case. Wald Dep. 145:7-147:10. Defendants
concede that “[e]xperience may provide a sufficient foundation
for expert testimony,” but they are mistaken in their claim8 that
he simply “aver[red] conclusionarily that his experience led to
his opinion.” Defs.’ Reply Br. 5 (emphasis omitted). Mr. Wald
clearly described his prior experiences with loose-connection
damage, and he laid out the reasons why the instant situation
“does not look like one would expect it to look like if it were
a loose terminal connection.” Wald Dep. 149:13-15; see also id.
147:11-151:8.
At best, misunderstanding Mr. Wald’s testimony--and at
worst, mischaracterizing it--Defendants assert that his
explanation of a “prolonged arcing failure,” Defs.’ Br. 14, was
later contradicted9 by his statement that “arcing is not--plays

8

Defendants point out that Mr. Wald has never seen a
case of arcing damage with current levels as low as those
involved here. See Defs.’ Br. 11. Thus, Defendants argue that
“Wald possesses no experiential foundation” for his opinion. Id.
This is simply untrue, however, as Mr. Wald testified that he
has (1) observed arcing damage under similar conditions and has
(2) seen many instances of what loose-connection damage looks
like. Surely this provides a relevant experiential foundation,
even if he has never confronted these exact circumstances before.
9

Defendants also assert that Mr. Wald first opined that
the defect was on the terminal’s bend, but later contradicted
himself and said it was somewhere in the middle of the long side
of the terminal. Defs.’ Br. 10. However, Mr. Wald actually said
he believed that the defect was “somewhere near [the] bend.”
17

no real significant role in any of this we’re talking
about. . . . It doesn’t play any significant role in this event
at all.” Wald Dep. 254:9-14. Contrary to Defendants’ claim that
this shows that “Wald’s opinion as to the cause of the fire has
changed,” Defs.’ Br. 14, the plain text of the notes of Mr.
Wald’s testimony reveals otherwise.10 Rather than changing his
story, Mr. Wald was remarking that regardless of whether there
was a defect in the metal or a loose wiring connection, metal
melted and arcing inevitably occurred with the current running
Wald Dep. 122: 15-22 (emphasis added). These statements are
easily reconciled, and do not render his opinion unreliable.
10

In context, the passage reads as follows:
Again, just to help you, hopefully, arcing is
not--plays no real significant role in any of this
we’re talking about. It is a fact that whenever you
part conductors there will be a parting arc. It’s
defined in NFPA 921. It doesn’t play any significant
role in this event at all.
You and I agreed two hours ago that the
explanation for this fire is either a loose connection
or a defect in the material. They both produce the
same result. You overheat the material. They both
produce molten metal.
The difference is if you had an overheating loose
connection, you melt the metal at the connection, and
the connection separates and we’re done. And you don’t
see what we have here.
Whereas, if the melting is due to a defect in the
material, you melt at the location of the defect,
which is what we see here. This case is extremely
simple.

Wald Dep. 254:8-255:4.
18

through the molten metal. The arcing itself is not the point;
the question is why it occurred.
Finally, Defendants point to Fireman’s Fund Insurance
Co. v. Canon U.S.A., Inc., 394 F.3d 1054 (8th Cir. 2005), “the
one prior decision where Wald’s opinion testimony was precluded
(and [the exclusion of his testimony was] upheld on appeal),”
Pls.’ Resp. Mem. 18. However, the instant case is
distinguishable from Fireman’s Fund--where, unlike here, the
court found that Mr. Wald had not “proposed a specific defect.”
394 F.3d at 1059.11
Further, contrary to Defendants’ claims, Mr. Wald did
develop a “testable hypothesis”--albeit one understandably
limited by the destruction of the evidence--by applying the
“generally accepted” method of using deductive reasoning to
narrow down alternative explanations. See Daubert Mot. Ex. F.,
NFPA 921 § 4.3.6. Defendants argue that Mr. Wald “did not
perform any test or experiment to determine the feasibility of a
‘prolonged’ ‘in-line’ arcing failure in a brass-coated terminal
that conducts 15 amperes of current from a twelve volt (12V)

11

In the instant case, Mr. Wald proposed a specific
defect: a cross-sectional area of the long side or bend of the
terminal with insufficient mass to support the current running
through it. He merely could not describe the precise location or
appearance of the defect as a result of the damage.
19

source”--testing that Mr. Wald admitted was feasible.12 However,
Mr. Wald found that such testing was unnecessary, as the
occurrence of melting and arcing as a result of electrical
current running through an insufficient cross-sectional area of
metal is already a well-established phenomenon. Daubert Hrg. Tr.
33:1-14. Even if conducting a particular test may have rendered
the opinion “more” reliable, that does not mean that without it,
the opinion is unreliable. The Court finds that, under these
circumstances, this criticism goes to the weight of Mr. Wald’s
opinion and not its reliability.
Although a consulting electrical engineer’s casespecific forensic evaluation may not neatly fit into all of the
elements the Third Circuit has discussed in the context of
Daubert analysis, the Third Circuit has also stressed that “[a]s
long as an expert’s scientific testimony rests upon ‘good
grounds, based on what is known,’ it should be tested by the
adversary process--competing expert testimony and active crossexamination--rather than excluded from jurors’ scrutiny for fear
that they will not grasp its complexities or satisfactorily

12

Although counsel for Intermatic pointed out that
§ 4.3.6.1 of NFPA 921 states that “[a]ny hypothesis that is
incapable of being tested is an invalid hypothesis,” Daubert
Hrg. Tr. 70:3-12, Mr. Wald recognized that his hypothesis was
readily testable--he simply argued that such testing would be
pointless, as the principles underpinning his hypothesis have
already been so thoroughly tested and universally established,
see id. 33:1-14.
20

weigh its inadequacies.” United States v. Mitchell, 365 F.3d
215, 244 (3d Cir. 2004) (quoting Ruiz–Troche v. Pepsi Cola of
P.R. Bottling Co., 161 F.3d 77, 85 (1st Cir. 1998)). Defendants
have highlighted several alleged shortcomings that a jury would
need to weigh carefully. Regardless, Mr. Wald’s testimony is
based on good enough grounds, and it should not be discarded
because Defendants judge that it would have been “more” reliable
with additional testing. Accordingly, the Court finds that Mr.
Wald’s expert testimony is sufficiently reliable under Daubert
and Rule 702, and further concerns may be adequately addressed
during cross-examination at trial.
B.

Fit
For essentially the same reasons Defendants raised in

challenging Mr. Wald’s reliability, Defendants argue that his
principles and methods “do not fit the facts and evidence in
this case.” Defs.’ Br. 17. As mentioned earlier, however, the
“fit” standard is not a high one, Oddi, 234 F.3d at 145, and the
Court finds that Mr. Wald’s “proposed testimony [not only]
constitutes scientific knowledge,” but constitutes “scientific
knowledge for purposes of the case,” In re Paoli, 35 F.3d at 743.
Mr. Wald’s testimony would adequately “assist the trier of fact,”
Oddi, 234 F.3d at 145; thus, it will not be excluded as unfit.

21

V.

CONCLUSION
For the foregoing reasons, the Court will deny

Defendants’ Daubert motion. An appropriate order follows.

22