Andrews v. The Brethren Mutual Insurance Company

Filing 102

MEMORANDUM (Order to follow as separate docket entry) re 63 First MOTION in Limine Purchase Price filed by Clayton Andrews. Signed by Chief Judge Matthew W. Brann on 10/12/2023. (ea)

Case 4:19-cv-02107-MWB Document 102 Filed 10/12/23 Page 1 of 27

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
CLAYTON ANDREWS,

No. 4:19-CV-02107
(Chief Judge Brann)

Plaintiff,
v.
THE BRETHREN MUTUAL
INSURANCE COMPANY,
Defendant.

MEMORANDUM OPINION
OCTOBER 12, 2023
I.

BACKGROUND
This dispute arises from Defendant The Brethren Mutual Insurance Company’s

decision to deny an insurance claim submitted by Plaintiff policyholder Clayton
Andrews. Andrews purchased a commercial property in Shamokin, Pennsylvania and
insured it with a policy from Brethren. Less than five months after the purchase, the
property burned down. Andrews submitted a claim to Brethren, who investigated and
denied the claim on the grounds that the fire had been set intentionally, either by
Andrews or at his direction. Andrews proceeded to file suit against Brethren. A trial is
set to begin on November 13, 2023. Ahead of trial, Andrews has filed seven Motions
in Limine seeking to exclude evidence relating to: (1) the purchase price of the property;
(2) a prior water loss claim filed by Andrews and paid by Brethren; (3) prior fire loss
claims filed by Andrews’ brothers; (4) the sale of the property following the fire; (5)

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limitation damages; (6) the expert opinion and testimony of Richard Andress; and (7)
the type and amounts of insurance coverage Andrews purchased from Brethren.
Brethren filed a Motion in Limine seeking to exclude evidence of the absence of an
arrest of prosecution by law enforcement arising from the fire. Brethren does not oppose
Andrews’ Motion regarding his brothers’ prior fire loss claims and Andrews does not
oppose Brethren’s Motion, so the Court will grant the relief requested in both. The
Court addresses the remaining Motions in turn.
II.

Motions in Limine
Motions in limine are “designed to narrow the evidentiary issues for trial and to

eliminate unnecessary trial interruptions”1 A court may decide the motion before trial
or defer a decision until during trial.2 The movant seeking to admit evidence carries the
burden of proof to meet the threshold of admissibility under the relevant rule or
principle.
III.

ANALYSIS
A.

Purchase Price

Andrews seeks to preclude Brethren from introducing into evidence the price
Andrews paid, $45,000, to purchase the property. He argues that the purchase price is
irrelevant because the property was insured for replacement value; “the amount of
coverage was entirely based upon the building make-up, its square footage, and

1
2

Bradley v. Pittsburgh Bd. of Educ., 913 F.2d 1064, 1069 (3d Cir. 1990).
See United States v. Adams, 36 F.4th 137, 150 (3d Cir. 2022).
2

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Brethren’s internal process and procedures for determining coverage.”3 Brethren argues
that the purchase price of the Building is relevant, because it shows that Andrews “had
a strong financial motive to set fire to the premises.”4
“Arson is an affirmative defense and therefore the defendant has the burden of
proving by a preponderance of the evidence that the fire was of an incendiary origin
and that the plaintiff was responsible for it.”5 The insurance company need not present
direct evidence that the plaintiff caused the fire; it may meet its burden through
circumstantial evidence.6 An insurer seeking to prove its case via circumstantial
evidence generally must show evidence of: “(1) an incendiary fire; (2) a motive by the
insured to destroy the property; and (3) circumstantial evidence connecting the insured
to the fire.”7 It is well established that financial motive is sufficient to satisfy the second
factor.8 This includes evidence that the insured stood to receive a financial windfall due

3
4
5
6
7
8

Purchase MIL Br., Doc. 64 at 6.
Purchase MIL Opp. Br., Doc. 87 at 2.
Doylestown Dodge, Inc. v. Great Am. Ins. Co., 1985 WL 3285 at *6 (E.D. Pa. Oct. 25, 1985)
(collecting cases).
Ruttenberg v. Fire Assoc. of Philadelphia, 186 A. 194, 195 (Pa. Super. 1936).
Mele v. All-Star Ins. Corp., 453 F. Supp. 1338, 1341 (E.D. Pa. 1978); accord Sperrazza v.
Cambridge Mut. Fire Ins. Co., 459 A.2d 409, 410-11 (Pa. Super. 1983).
E.g., Ly v. Universal Property & Cas. Ins. Co., 2021 WL 1837468, at *4 (E.D. Pa. May 7,
2021); Merrone v. Allstate Vehicle and Property Ins. Co., 2019 WL 5310576, at *6 (W.D. Pa.
Oct. 21, 2019); Wells v. State Farm Fire and Cas. Co., 2013 Wl 6044371, at *2-3 (E.D. La.
Nov. 14, 2013); Auto Club Family Ins. Co. v. Mullins, 2012 WL 6043652, at *5 (N.D. Ala.
Nov. 29, 2012); State Farm Property and Cas. Ins. Co. v. Hargis, 2010 WL 1662179, at *3
(W.D. Ky. Apr. 23, 2010) (citing Arms v. State Farm Fire & Cas. Co., 731 F.2d 1245, 1250
(6th Cir. 1984)); Randle v. Allstate Indem Co., 649 F. Supp. 2d 675, 679 (N.D. Ohio 2009);
U.S. v. Martin, 523 F.3d 281, 290 (4th Cir. 2008); St. Paul Fire & Marine Ins. Co. v. Salvador
Beauty College, Inc., 930 F.2d 1329, 1332 (8th Cir. 1991).
3

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to the insured value of the property exceeding the purchase price.9 Andrews’ argument
that the purchase price is irrelevant because he did not seek a particular coverage type
or amount is unavailing. Andrews may argue to the jury that he did not create the
financial motive, but there is no question one existed.
Andrews also argues that, even if the purchase price is relevant, it should be
nevertheless excluded on the grounds that it is unfairly prejudicial. The Court agrees
that the evidence is prejudicial—when a building purchased for $45,000 and insured
for $2.8 million burns down, it is likely to raise a few eyebrows—but it does not agree
that it is unfairly so. Evidence of high probative value will often be highly prejudicial.
This is insufficient to render the prejudice unfair. The Court also notes that Andrews
purchased the building just over four months prior to the fire, which is probative of a
motive to receive an immediate financial windfall. Finally, evidence of financial
motive, no matter how strong, is insufficient on its own for Brethren to prevail,
somewhat lessening the prejudicial impact of evidence of the purchase price.
B.

Post-Fire Sale and Sale Price

Andrews seeks to exclude evidence that he sold the vacant commercial land for
$225,000 after the fire.10 Brethren argues that evidence of the sale of the property is
relevant to Andrews’ “motive to set, either directly or indirectly, the fire which is the

9

10

See Musha v. USAA Gen. Indem. Co., 2011 13160343, at *4 (S.D. Ga. Dec. 14, 2011) (finding
evidence of financial motive where the insured purchased a house for $168,500 and had it
insured for $221,000).
Sale MIL, Doc. 69,
4

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subject matter of the litigation.”11 The parties’ arguments on this issue are not
particularly well developed. While it is true that Andrews sold the property for $180,000
more than he paid for it, other factors such as the value of the building as it stood before
the fire and the time, materials, and equipment lost in the fire would bear on the financial
motive to set fire to the building rather than simply sell it as it was. However, Andrews
has not cited any such record evidence or other authority in support of his arguments.
Though the Court finds that evidence of the sales price is less probative than that of the
purchase price, it does not find that it has no probative value. Further, Brethren
specifically argues that Andrews received a financial windfall by “having [Brethren]
cover the expenses associated with the demolition and debris removal of the firedamaged remains and selling the land for exactly five times the amount paid for the
structure.”12 To the extent that Brethren is arguing that the property was worth more as
a vacant lot and that Andrews fraudulently induced Brethren into paying to clear the
land, the evidence of the sales price is not duplicative of the evidence of the purchase
price as Andrews suggests. Therefore, the Court will deny Andrews’ motion to exclude
evidence of the sale of the property.
C.

Water Loss

Andrews seeks to exclude evidence of a water loss claim—for which Brethren
paid Andrews $32,295 in losses—arising out of flooding of an upper floor of the

11
12

Sale MIL Opp., Doc. 88 ¶ 7.
Sale MIL Opp. Br. 2-3.
5

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building.13 He argues that the water loss claim and the related evidence is irrelevant to
the fire at issue in the case.14 He suggests that, by paying the claim after “investigation
failed to reveal any evidence that Mr. Andrews was responsible for the flood,”
“Brethren acknowledged that the water loss claim was legitimate.”15 Brethren argues
that Andrews’ statements subsequent to the payout for the water loss claim shows that
the claim was fraudulent and “set into motion a course of conduct.”16 Brethren further
argues that Andrews’ inconsistent statements regarding the cause of the flooding are
admissible for impeachment purposes.17
Federal Rule of Evidence 404(b)(2) allows for the admission of “a crime, wrong,
or other act” as proof of “motive, opportunity, intent, preparation, plan, knowledge,
identity, absence of mistake, or lack of accident.” Brethren’s argument that admission
of the water loss claim “will provide focus to the jury concerning [Andrews’] fraudulent
schemes”18 assumes the conclusion that the water loss claim was fraudulent. Andrews’
argument that Brethren would not have paid out a claim it believed was fraudulent is
well taken. The question then is whether Brethren has introduced evidence sufficient to
show that Brethren got it wrong the first time.19 The Court finds that it has not.

13
14
15
16
17
18
19

Water Loss MIL, Doc. 65 ¶ 2
Water Loss MIL Br., Doc. 66 at 5.
Id.
Water Loss MIL Opp., Doc. 84 ¶ 3.
Water Loss Opp. Br., Doc. 85 at 2.
Id.
See Huddleston v. U.S., 485 U.S. 681, 689 n.6 (1988) (“In the Rule 404(b) context, similar act
evidence is relevant only if the jury can reasonably conclude that the act occurred, and the
defendant was the actor.”).
6

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Dennis Gordon, the independent insurance adjuster retained by Brethren to
investigate the water loss claim was advised that Andrews “apparently had some
workers do some maintenance work to the dwelling. A garden hose was hooked up to
a sink in the closet area with a nozzle at the end. The spigot was kept in the ‘on’ position,
which allowed for pressure to gather within the garden hose, which eventually
leaked.”20 Asked at his deposition if he denied telling Gordon that he had workers in
the building using the hose Andrews responded: “I don’t deny it. I might have told him
that they could have used it. I don’t know what my maintenance guys would have done
to use it, maybe cleaning something up, yes. I could have told him that, yes.”21 Andrews
also testified that he was not sure who had used the hose, or for what purpose the hose
had been used.22 Andrews was also interviewed by Shamokin Police Chief Raymond
Siko following the fire and Siko noted that, when asked if he had any prior insurance
claims, Andrews said “someone opened a locked door where a sink was located at,
attached a hose to it, turned it on and flooded the first floor which needed to be repaired”
and that he “was the only one who had a key to the closet where the hose and sink were
located.”23 Siko confirmed this apparent inconsistency during a deposition.24
To the extent that these statements are inconsistent they are not enough, on their
own, to compel the conclusion that the water loss claim was fraudulent. The

20
21
22
23
24

Water Loss MIL Opp. ¶ 2 (quoting Water Loss Notice, Ex. A., Doc. 84-4).
Andrews 2018 Dep., Doc. 84-5, 89:18-25; see also Water Loss MIL Opp. ¶ 2.
Andrews 2018 Dep. 86:22-87:11, 89:9-25, 90:25-92:11, 93:5-10.
SPD Incident Report, Ex. E, Doc. 84-7 at 6.
Siko Dep., Doc. 84-8, 141:25-142:14.
7

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inconsistency between Andrews’ testimony and the statements he gave to Gordon rely
on both Gordon’s characterization of Andrew’s statements to him, and Andrews’
recollection of that conversation which occurred months earlier. The evidence of
inconsistent statements given to Siko suffer from the same flaw: Siko’s notes are from
his interview with Andrews on December 26, 2017,25 over five years before his
deposition.26
To buttress their argument that the water loss claim was fraudulent, Brethren also
suggests that Andrews “did not effectuate repairs from the water loss for which he
received insurance proceeds.”27 Here, Brethren’s argument proves too much. When
asked during his deposition if the water damage had been repaired prior to the fire,
Andrews responded “no, not fully,”28 Andrews testified that he hired, and presumably
paid for, a remediation company (at Brethren’s direction) after the loss.29 He testified
that he had purchased the materials to repair the floor30 and that he was “getting
somebody in to do the carpet, redo the carpet in the basement.”31 Brethren asks the
Court to overlook all of the steps Andrews did take, simply because he had not actually

25
26

27
28
29
30
31

SPD Incident report at 5.
See Pinkney v. Meadville, Pa., --- F. Supp. 3d ----, 2023 WL 24297, at *18 (W.D. Pa. 2023)
(“Because of reliability concerns, the rules expressly exclude police reports as inadmissible
hearsay.”) (quoting Krepps v. Gov’t of Virgin Islands, 47 V.I. 662, 672 (D.V.I. 2006), aff’d
438 F. App’x 86 (3d Cir. 2010)). But cf. Sarauw v. Fawkes, 66 V.I. 254, 270 (V.I. 2017)
(observing that the inconsistency between statements “made in a very short duration” was
“without legitimate excuse or explanation”).
Water Loss Opp. ¶ 2.
Andrews 2023 Dep., Doc. 84-6, 9:10-13 (emphasis added).
Andrews 2018 Dep. 96:12-25.
See Andrews 2018 Dep., Doc. 65-1, 110:20-25 (testifying that he purchased “tiles, glue, and
paint”).
Andrews 2018 Dep., Doc. 84-5, 96:6-11.
8

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repaired the damage yet. Andrews taking these steps, spending time and money on
repairs, does not suggest that the claim was fraudulent—it suggests just the opposite.
As the party seeking to admit the evidence, Brethren carries the burden of proof
to show that it is admissible. It may be that Brethren could prove by a preponderance
of the evidence that the water loss claim was fraudulent. However, the Court finds that
Brethren has not done so here and agrees with Andrews that allowing Brethren the
opportunity to do so at trial would create an unacceptable danger of confusing the
issues; this trial is about the fire loss, not the water loss.32 The Court is also mindful of
the danger posed by allowing Brethren to introduce evidence of the water loss claim if
it cannot prove that the claim was fraudulent. Courts have excluded evidence of prior
fire loss claims in similar cases on the grounds that “prior fire losses have no relevance
to the present fire” and “[s]uch evidence would only be highly prejudicial to the
plaintiff.”33 The relevance of the water loss claim here is more attenuated; it was a
different type of loss, for a substantially smaller dollar amount.
The Court will grant Andrews’ Motion in Limine to exclude any evidence of the
prior water loss claim.

32

33

See U.S. v. Green, 617 F.3d 233, 249 (3d Cir. 2010) (“To be admissible under Rule 404(b),
evidence of uncharged crimes must . . . satisfy Rule 403.”) (citing United States v. Butch, 256
F.3d 171, 175 (3d Cir. 2001)); U.S. v. Hans, 738 F.2d 88, 95 (3d Cir. 1984) (observing that
even if evidence is “admissible under Rule 404(b), it still has to meet the balancing
requirements of Rule 403”).
Cantor v. Nat’l Union Fire Ins. Co., 12 Phila.Co.Rptr. 232, 237 (Pa. Com. Pl. 1985); see also
American Nat’l Prop. and Cas. Co v. Felix, 399 F. Supp. 3d 324, 353 (W.D. Pa. 2019) (denying
motion for new trial and reaffirming decision to exclude evidence of prior fire loss claim).
9

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D.

Limitation of Damages

Andrews asks the Court to require that, if Brethren is found liable, the damages
should be for the replacement cost value of $2,865,000, not the actual cash value at the
time of the loss or the market value of comparable properties in the Shamokin area.34
As noted by Brethren, “the policy of insurance specifically dictates that an insured is
not entitled to replacement cost unless he rebuilds or repairs the [property] subject to
certain time limitations.”35 There is no dispute that Andrews did not rebuild or repair
the property. Instead, Andrews suggests that he is excused from doing so because
“Brethren’s denial of coverage and refusal to pay Mr. Andrews replacement costs
coverage under the Policy constitutes a waiver of its ability to limit damages to the
actual cash value.”36
In support of his argument that the Court should not enforce the policy condition
requiring him to rebuild or replace the property within a certain amount of time,
Andrews cites Ferguson v. Lakeland Mut. Ins. Co.,37 where the Pennsylvania Superior
Court held such a provision unconscionable.38 In a later case, Burton v. Republic Ins.
Co.,39 the Superior Court clarified that an insured is excused from the replacement
requirement where:

34
35
36
37
38
39

Damages MIL, Doc. 71 ¶ 10.
Damages MIL Opp. Br., Doc. 93 at 2.
Damages MIL Br., Doc. 72 at 5.
596 A.2d 883 (Pa. Super. 1991).
Damages MIL Br. 10.
845 A.2d 889 (Pa. Super. Ct. 2004).
10

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(1) the insurer denied liability;
(2) the insureds faced the ‘unsavory’ choice of either accepting actual cash
value or expending a large sum in replacement costs without a guarantee
of reimbursement; and
(3) any payment of replacement value by in the insurer hinged on the
insured either expending funds or obtaining a judicial determination of
liability.40
The Court finds that all three elements are satisfied here. Brethren admits that,
notwithstanding its advance of funds for debris cleanup, it denied coverage,41 leaving
Andrews in a position where he would have needed to spend over $2 million to rebuild
the property42 and then obtain a favorable judgment in court before being reimbursed.
Brethren argues that, even if the Court excuses Andrews from the time limitation,
Andrews “must still demonstrate that he would have replaced the property as
required.”43 In support, Brethren cites two out-of-state cases, Conrad Brothers v. John
Deere Ins. Co.44 and Bailey v. Farmers Union Co-Op. Ins.,45 in which courts ruled in
favor of the insured. In Conrad Brothers, the Iowa Supreme Court held that the insurer
repudiated its obligation under the contract and found that there was “substantial
evidence from which the court could have concluded Conrad Bros. would have repaired

40

41

42
43
44
45

Utica Mut. Ins. Co. v. Cincinnati Ins. Co., 362 F. Supp. 3d 265, 269 (E.D. Pa. 2019) (citing
Burton, 845 A.2d at 898-99; Rotell v. Erie Ins. Grp., 53 Pa. D. & C. 4th 533, 544 (Comm. Pl.
2001)).
Damages MIL ¶ 9; Damages MIL Opp. ¶ 9. The Court notes that Brethren states its
“declination of coverage letter . . . speaks for itself.” This is an improper response. State Farm
Mut. Auto. Ins. Co. v. Riley, 199 F.R.D. 279, 279 (N.D. Ill. 2001). The Court takes Brethren’s
admission that it denied coverage to mean just that.
See Coverage MIL Opp., Doc. 82 ¶ 5 (noting that Brethren determined the cost to replace the
building to be approximately $2.8 million).
Damages MIL Opp. Br. 2.
640 N.W.2d 231 (Iowa 2001).
498 N.W.2d 591 (Neb. Ct. App. 1992).
11

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but for John Deere’s repudiation.”46 In Bailey, the Nebraska Court of Appeals ruled in
favor of the insured on the grounds that “[a] condition is excused if the occurrence of
the condition is prevented by the party whose performance is prevented by the party
whose performance is dependent upon the condition.”47
In Utica Mutual Insurance Company v. Cincinnati Insurance Company,48 the
United States District Court for the Eastern District of Pennsylvania, held that
Pennsylvania’s “prevention theory approach” is not inconsistent with the holdings in
Conrad Brothers and Bailey. Under the prevention theory approach, “[t]he inquiry
focuses on the insurer’s actions and their consequences for the insured’s ability to
perform—i.e., whether the insurer paid actual cash value or denied liability altogether
and whether denying funds made it impossible, or at least unduly risky, for the insured
to comply with the replacement condition.”49 Then, “the insured must still demonstrate
that, but for the insurer’s denial of payment, it would have replaced the property as
required.”50
The Court finds that, in this case, Brethren’s denial of coverage is sufficient to
carry this burden.51 This is consistent with Bailey, in which that court “w[ould] not
allow [the insurer] to raise a defense [insured’s] failure to perform an act which [insurer]

46
47
48
49
50
51

Conrad Brothers, 640 N.W.2d at 242.
Id. at 598 (citing Chadd v. Midwest Franchise Corp., 412 N.W.2d 453 (1987)).
362 F. Supp. 3d 265 (E.D. Pa. 2019).
Id.
Id. (citing Conrad Brothers, 640 N.W.2d at 242; Bailey, 498 N.W.2d at 599).
See Conrad Brothers, 640 N.W.2d at 242) (“. . . the insured must prove the repudiation
materially contributed to its nonperformance”) (citing Restatement (Second) of Contracts §
255) (emphasis added).
12

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itself greatly hindered [insured] from performing.”52 To the extent that the court in
Conrad Brothers required more from the insured, that case is distinguishable because
there the insurer had issued a check to the insureds for the actual cash value
($60,037.50), but not the replacement cost ($120,075).53 In this case, Brethren advanced
only $100,000 and compliance with the requirement to rebuild or repair the building
would have required Andrews to spend far more than the $60,000 in Conrad Brothers.
Thus, Brethren’s denial of coverage “materially contributed” to Andrews’
nonperformance.54
Nevertheless, Brethren asserts that “the evidence at trial will establish that
[Andrews] had no intention of replacing the property and would have only received
actual cash value had no coverage dispute arisen.”55 On the limited record before it, the
Court is not prepared to preclude Brethren from introducing such evidence. Therefore,
the Court will allow Brethren the opportunity to do so prior to ruling on Andrews’
Motion.
E.

Andress Opinion

Andrews seeks to exclude the expert testimony and report of Russel L. Andress,
the fire expert retained by Brethren. During the pendency of this matter, Brethren
originally retained Alex Profka as a fire expert.56 Profka prepared a report regarding his

52
53
54
55
56

498 N.W.2d at 599 (quoting Pollack v. Fire Ins. Exch., 423 N.W.2d 234, 237 (Mich. Ct. App.
1988)).
640 N.W.2d at 235.
Cf. Conrad Brothers, 640 N.W.2d at 242.
Damages MIL Opp. Br. 3.
Andress MIL ¶ 6.
13

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assessment of the cause of the origin of the fire dated February 28, 2020.57 Profka
unfortunately passed away on January 23, 2022.58 Brethren subsequently retained
Andress, who prepared his own report.59 Andrews argues that Andress’ report and
testimony should be excluded because “the proffered opinions (1) simply ‘parrot’ the
ideas and conclusions of Mr. Profka; (2) are not the product or reliable principles or
methods; and (3) are based entirely on unsupported speculation and conjecture and not
facts of record.”60
Federal Rule of Evidence 702 requires that expert testimony is (1) qualified, (2)
reliable, and (3) assists the trier of fact.61 Andrews does not dispute the qualifications
of Andress, only that his opinions are not reliable and would not assist the trier of fact.
As to the latter, Andrews argues that Andress’ opinions would not assist the jury
because they “are based entirely on speculation with regard to what may have actually
caused the fire and who was responsible for it.”62 Whether the testimony will assist the
trier of fact turns on whether it is “‘sufficiently tied to the facts of the case,’ so that it
‘fits’ the dispute.”63 “This condition goes primarily to relevance.”64 Andress’
determination that “an accelerant was poured onto the stairs to enhance the speed and

57
58
59
60
61
62
63
64

Profka Report, Ex. A., Doc. 73-1 p. 2-21.
Andress MIL Opp. Br. 2.
Andress Report, Opp. Ex. B, Doc. 90-4.
Andress MIL ¶ 10.
UGI Sunbury LLC v. A Permanent Easement for 1.7575 Acres, 949 F.3d 825, 832 (3d Cir.
2020).
Andress MIL Br. 13-14.
Id. (quoting Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 591 (1993))
Daubert, 509 U.S. at 591.
14

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intensity of th[e] fire”65 is unquestionably relevant to this dispute, as it is an element of
Brethren’s affirmative defense.66 Andress need not conclude that Andrews himself
caused the fire for his opinion to be relevant. Andrews’ arguments that Andress’ opinion
would not help the jury because “it is based entirely on speculation” are challenges to
the reliability of Andress’ opinion, not its relevance.
“Rule 702’s reliability threshold requires expert testimony to be ‘based on
methods and procedures of science, not on subjective belief and unsupported
speculation.’”67 A pending amendment to Rule 702, scheduled to take effect on
December 1, 2023, “clarif[ies] and emphasize[s] that expert testimony may not be
admitted unless the proponent demonstrates to the court that it is more likely than to
that the proffered testimony meets the admissibility requirements set forth in the rule.”68
The amendment was motivated by the Advisory Committee’s “observation that in ‘a
number of federal cases . . . judges did not apply the preponderance standard of
65
66
67
68

See generally Andress Report.
See Mele, 453 F. Supp. at 1341 (identifying whether the fire was incendiary in nature as an
element of the arson affirmative defense).
UGI Sunbury, 949 F.3d at 833-34 (quoting Karlo v. Pittsburgh Glass Works, LLC, 849 F.3d
61, 80 (3d Cir. 2017); In re TMI Litig., 193 F.3d 613, 703 (3d Cir. 1999)).
Fed. R. Evid. 702, Advisory Comm. Notes, 2023 Amendments. The amended rule reads as
follows:
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 the proponent
has demonstrated by a preponderance of the evidence that:
(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 expert’s opinion reflects a reliable
application of the principles and methods to the facts of the case.
Fed. R. Evid. 702 (effective Dec. 1, 2023) (italicized language added by amendment,
struck through language deleted by amendment).
15

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admissibility to Rule 702’s requirements of sufficiency of basis and reliable application
of principles and methods, instead holding that such issues were ones of weight for the
jury.’”69 The Committee emphasized that rulings which have held “the critical questions
of the sufficiency of an expert’s basis for his testimony, and the application of the
expert’s methodology, are generally questions of weight and not admissibility” “are an
incorrect application of Rules 702 and 104(a).”70 Thus, the amendment “echoes the
existing law on the issue,” rather than a change of the Rule 702 standard.71 Therefore,
the Court will take heed of the forthcoming changes so as to avoid the misapplication
of Rule 702 identified by the Advisory Committee.
Brethren argues that Andrews “has not identified any fire experts nor has he
presented any evidence that the reports of Alex Profka and Russel Andress are in any
way deficient or discordant with fire investigation industry standards or protocols.”72
While true, it is Brethren who has the burden to “demonstrate by a preponderance of
the evidence that the testimony is the product of reliable principles and methods and the

69
70
71

72

Sardis v. Overhead Door Corp., 10 F.4th 268, 283-84 (4th Cir. 2021) (quoting Advisory
Comm. on Evidence Rules, Agenda for Committee Meeting 17 (Apr. 30, 2021)).
Id. at 284 (quoting Advisory Comm., Agenda at 105, 107).
Id. (citing Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 591 (1993); Kumho
Tire Co., Ltd. v. Carmichael, 526 U.S. 137, 147 (1999)). See also Wood v. Showers, 822 F.
App’x 122, 125 (3d Cir. 2020) (rejecting “lower bar for expert testimony” where flaws “such
as the reliability of an expert’s principles and methods would be primarily a question for the
jury and would not be screened by the trial judge”); U.S. v. Schiff, 602 F.3d 152, 172 (3d Cir.
2010) (observing that “‘a trial judge acts as a gatekeeper to ensure any and all expert testimony
is not only relevant, but also reliable’ . . . [b]efore the proposed testimony gets presented to the
jury.”) (quoting Pineda v. Ford Motor Co., 520 F. 3d 237, 243 (3d Cir. 2008)); TMI, 193 F.3d
at 665 (observing that the proponent of expert testimony must show the testimony is reliable
by a preponderance of the evidence).
Andress MIL Opp. Br. 2.
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expert’s opinion reflects a reliable application of the principles and methods to the facts
of the case.”73 Reliability does not require that the “opinion is supported by the best
methodology or unassailable research.”74 An opinion may be reliable “even though the
judge thinks that the opinion is incorrect.”75
Andress’ “Determination” includes four distinct opinions: (1) the “fire did
originate within the open stairway which leads to the upper levels of the structure;” (2)
“the reignition of previously extinguished wood stairs . . . along with the identification
of ignitable liquids by accelerate canine Locke indicate that an accelerant was poured
onto the stairs to enhance the spread and intensity of this fire;” (3) “[t]he ignition source
for this fire is a competent ignition source introduced to the ignitable liquid soaked
wood stairs . . . by the human hand;” and (4) “[a]ll reasonable accidental ignition sources
were eliminated during [Andress’] investigation.”76
Profka, the expert originally retained by Brethren, noted in his report that he
“conducted the investigation on all dates according to NFPA 921, which included the
elimination of accidental causes.”77 Andress’ curriculum vitae states that he “use[s] a
systematic approach utilizing the Scientific Method as outlined in NFPA 921,”78 and

73
74
75

76
77
78

Fed. R. Evid. 702 (effective Dec. 1, 2023).
Karlo, 849 F.3d at 81.
In re Paoli R.R. Yard Pcb Litig., 35 F.3d 717, 744 (3d Cir. 1994); see also TMI, 193 F.3d at
664 (“Thus, plaintiffs do not ‘have to prove their case twice—they do not have to demonstrate
to the judge by a preponderance of the evidence that the assessments of their experts are
correct, they only have to demonstrate by a preponderance of evidence that their opinions are
reliable.’”) (quoting Paoli, 35 F.3d at 744).
Andress Report 16.
Profka Report 2.
Andress CV, Opp. Ex. C, Doc. 90-3 at 1.
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“NFPA 921 qualifies as ‘a reliable method endorsed by a professional organization.’”79
However, there is no mention of NFPA 921, or any other standard in his report.
Andress’ report simply states that his “investigation was completed using the provided
photographs, reports, and depositions along with a physical site visit, and interviews.”80
The Court addresses these defects and their impact on the admissibility of each of
Andress’ opinions in turn.
1.

Origination

Andress bases his opinion that the fire began in the stairway on “examination of
photographs . . . as well as interviews with Deputy Chief Ken Pilkus who was inside
the structure during the initial fire attack.”81 He first concludes that “it was clear that
this fire began within the structure.”82 He notes that a photograph taken by Pilkus during
the fire “shows heavy fire in the common hallway at the stairway” and that post fire
photographs “clearly indicate a sustained fire in the stairway which compromised the
structural integrity of the stairs above resulting in their collapse.”83 Further, these
photographs show evidence of a “clean burn” of the staircase,84 which, contrasted with
the “fire damaged but intact” structures in other areas, revealed “no indications of fire

79
80
81
82
83
84

Russell v. Whirlpool Corp., 702 F.3d 450, 455 (8th Cir. 2012) (quoting Fireman’s Fund Ins.
Co. v. Canon U.S.A., Inc., 394 F.3d 1054, 1058-59 (8th Cir. 2005)).
Andress Report 1.
Id. at 3.
Id.
Id.
Id.
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origin except at the staircase.”85 But Andress does not, however, explain why evidence
of a clean burn is sufficient to show that the fire started in a certain area.86
2.

Accelerant

The basis for Andress’ opinion that “an accelerant was poured onto the stairs to
enhance the spread and intensity of this fire” is (1) “the identification of ignitable liquids
by accelerant canine Locke,” and (2) “the reignition of the previously extinguished
wood stairs as witnessed by Deputy Chief Ken Pilkus.”87
a.

Accelerant Canine

In his analysis regarding the presence of a liquid accelerant, Andress begins by
describing the process in which an accelerant canine, Locke, alerted to the presence of
ignitable liquids. He notes that Locke “alert[ed] to the presence of ignitable liquids at
the entrance of the staircase on the main level” and” in the debris fields beneath the
collapsed staircase.”88 Dauphin County Detective Dennis Woodring, the handler for
Locke, then set up a “can test” for Locke in which he arranged cans of debris samples
from the areas where Locke alerted along with cans of samples known to be free of
ignitable liquids.89 Andress states that Locke alerted to the samples from the debris field

85
86

87
88
89

Id. at 4-5.
Cf. Chester Valley Coach Works, Inc. v. Fisher-Price, Inc., 2001 WL 1160012, at *8 (E.D. Pa.
Aug. 29, 2001) (discussing expert testimony in which expert “pointed to particular sections of
NFPA 921 that support his conclusion that evidence of ‘clean burn’ and/or ‘spalling’ in a given
location are not necessarily indicators of fire origin”).
Andress Report 16.
Id. at 4.
Id. at 4-5.
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near the stairs, indicating that the samples from the area near the staircase contained
ignitable liquids.90
Samples from the debris field were subsequently sent to the Pennsylvania State
Police Laboratory for testing, where “no common ignitable liquids were identified in
the samples.”91 According to Andress, the Police Laboratory report offers three possible
reasons for a failure to identify an ignitable liquid: (1) “no ignitable liquid present;” (2)
“an ignitable liquid present below quantities required for positive identification;” or (3)
“an uncommon ignitable liquid.”92 Andress suggests that the “unknown ignitable liquid
was possibly diluted by the vast amounts of water used to extinguish this fire and the
delay in recovering these samples.”93 Andress concludes that “[g]iven the alert by
[Locke] on the debris as well as during a can test it is reasonable to conclude that an
ignitable liquid was present but could not be identified by the laboratory.”94
In U.S. v. Hebshie,95 the United States District Court for the District of
Massachusetts, granting a petition for habeas corpus and overturning an arson
conviction, highlighted the unreliability of accelerant-detection canines:
NPFA 921 circumscribes the use of canines; they are meant simply to be
tools to help investigators narrow the search area for ignitable liquids. . . .
What investigators refer to as “accelerants” actually represent a wide
range of common and frequently benign materials. In addition, such
chemicals can be created by the breaking down of materials during a fire,
such as decomposing carpet and other adhesives. “Unlike explosive or
90
91
92
93
94
95

Id. at 5.
Id. at 14.
Id.
Id.
Id.
754 F. Supp. 2d 89 (D. Mass 2010).
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drug-detecting dogs, these canines are trained to detect substances that are
common to our everyday environment. Merely detecting such quantities
is of limited evidential value.” For these reasons, NFPA 921 requires not
just laboratory corroboration, but also comparison samples.”96
The Hebshie court is not alone: “Most courts have held that uncorroborated
canine alerts are novel scientific evidence, not generally accepted in the scientific
community of arson investigators.”97 Though Locke’s handler did set up comparison
samples, NFPA 921, the method Andress purports to apply, requires both comparison
samples and laboratory corroboration.98 Rather than a reliable application of NFPA 921
methods, Andress’ conclusion that “it is reasonable to conclude that an ignitable liquid
was present”99 given the alert of Locke is contrary to those methods. Therefore,
Andress’ reliance on the alert of an accelerant-detecting canine does not pass the smell
test.
b.

Reignition

After firefighters were able to “knock down” the fire on the stairs, it “re-ignited
three times.”100 Andress concludes, without explanation, that this “was likely the result
of the reignition of vapors from an ignitable liquid on the stairs.”101 Andress does

96
97

98
99
100
101

Id. at 110 (quoting NFPA 921 § 14.5.3.5).
State v. Sharp, 928 A.2d 165, 185-86 (N.J. Super. 2006) (collecting cases); see also Landry v.
State, 380 P.3d 25, 33-34 (Utah Ct. App. 2016); Harris v. Gourley, 2013 WL 1294444, at *8
(M.D. Ga. Mar. 27, 2013) (observing that “dog sniffs for possible accelerant do not constitute
substantive evidence of the presence of an accelerant”) (citing Carr v. State, 482 S.E.2d 314
(1997)); Jaslar v. Zavada, 2009 WL 82553, at *7 n.10 (M.D. Pa. Jan. 12, 2009) (observing
that, where an accelerant-detection canine hits on areas where chemical analysis found no
accelerant, it “suggest[s a] lack of reliability of the results of the accelerant detection dog”).
Hebshie, 754 F. Supp. 2d at 110.
Andress Report 14.
Id. at 5.
Id.
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suggest that “[i]gnitable liquids which would have permeated the wood steps are not
water soluble and their vapors would continue to ignite when subjected to an ignition
source.”102 However, while this may explain how an ignitable liquid would have led to
reignition if one was present, it does not establish that one was actually present. In his
report, Andress does not consider any alternatives for reignition or explain why a liquid
accelerant is the most likely cause. This logical leap, based on only Andress’ ipse dixit,
is insufficient to meet Rule 702’s reliability standard.103
Even if the Court were to overlook the deficiencies of Andress’ report regarding
the presence of an accelerant, it would still exclude his opinion on this issue because
his testimony would not “help the trier of fact to understand the evidence or to determine
a fact at issue.”104 The parties do not dispute that an accelerant was detected in the
stairwell—it is not a “fact at issue.”105 As Andress notes, the Pennsylvania Police Lab
was unable to identify the accelerant, and Andress does not offer any additional color,
supported by NFPA 921 or any other standard, which would broaden the jury’s
understanding of the issue.
3.

Ignition Source

Andress opines that the fire was ignited “by the human hand” and that “[a]ll
reasonable accidental ignition sources were eliminated during this investigation.”106

102
103
104
105
106

Id. at 14.
Meadows v. Anchor Longwall and Rebuild, Inc., 306 F. App’x 781, 790 (3d Cir. 2009) (citing
Gen Elec. Co. v. Joiner, 522 U.S. 136, 146 (1997)).
Fed. R. Evid. 702(a).
See Andrews’ Pretrial Mem., Doc. 95 at 13-14.
Andress Report 16.
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Nowhere in Andress’ report prior to the Determination section does Andress explain
his basis for his opinion that the fire was intentionally set.107 To the extent that Andress’
opinion that the fire was incendiary is based on Andrews’ financial motivations or past
insurance claims,108 “permitting expert testimony on this subject would be merely
substituting the expert’s judgment for the jury’s and would not be helpful to the jury.”109
To the extent that this opinion is based on his elimination of “all reasonable accidental
ignition sources,” it appears Andress has again applied a methodology rejected by the
NFPA.110
Andress’ elimination of all reasonable accidental ignition sources also does not
reflect a reliable application of NFPA 921, or any other standard. Andress notes that the
“only known mechanical issue in the building was a problem with the natural gas boiler
in the basement” and eliminates this as a cause because “[n]o fire damage was found in
the basement and no evidence of a natural gas event was identified.”111 Andress does
not explain what evidence he might expect to find following a “natural gas event” or
otherwise show how his elimination of this as a cause is in accordance with NFPA 921.
Andress also rejects the opinion of Pennsylvania State Fire Marshal Vicki Spencer of a
“potential electrical failure as there is no evidence to support an electrical

107
108
109
110
111

See generally id.
See id. 9-11.
Zimmer Surgical, Inc. v. Stryker Corp., 365 F. Supp. 3d 466, 497 (D. Del. 2019) (quoting
Siring v. Oregon State Bd. of Higher Educ., 927 F. Supp. 2d 1069, 1077 (D. Or. 2013)).
See Muth v. Woodring, 755 F. App’x 109, 114 (3d Cir. 2018) (observing that the NFPA
“explicitly rejected the negative corpus methodology” in 2011).
Andress Report 15.
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malfunction.”112 Other than noting Andrews was unaware of any electrical issues,
Andress does not explain what evidence of a potential electrical malfunction is
missing.113 Andress’ failure to show his work here is particularly glaring, as he is not
simply offering his own unsupported opinion, but also rejecting the opinion of another.
Therefore, Andress’ opinions regarding the ignition source must also be excluded.
The Court emphasizes that Andress’ conclusions did not factor into its decision
to exclude his report and testimony. On the contrary, Andress’ conclusions, reached by
a “Fire Origin and Cause” investigator with nearly 30 years of experience, appear
eminently reasonable. This is precisely why they must be excluded.114 Further, even if
the Court assumes Andress applied the NFPA 921 standard, Andress appears to have
reached a number of his conclusions contrary to that standard. Not only does this require
the exclusion of those opinions, it raises questions about the reliability of the rest of the
report. The Court will grant Andrews’ Motion to Exclude the Report and Testimony of
Fire Expert Russel L. Andress.
F.

Insurance Coverage

Andrews seeks to exclude any evidence that he “sought a certain amount of
insurance on the property, or to increase the amount of insurance on the property.”115

112
113
114

115

Id.
Id.
See Sardis, 10 F.4th at 283 (observing that, because “expert evidence can be both powerful
and quite misleading,” “the importance of the gatekeeping function cannot be overstated”)
(quoting Daubert, 509 U.S. at 592, 595; United States v. Barton, 909 F.3d 1323, 1331 (11th
Cir. 2018)).
Coverage MIL, Doc. 75.
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The parties agree that, prior to closing on his purchase of the building, Andrews,
through insurance agent Eric Fryer, “purchased a replacement cost coverage policy
from [Brethren] which insured the building for $2.2 million as well as $240,000 in
business income loss coverage.”116 The parties also agree that Brethren, after an
inspection of the Building, “dictated that the building coverage limit [be] increased to
$2,864,434.”117 However, Brethren denies that Andrews did not request the business
income loss coverage be increased to $500,000.118
Brethren does not oppose Andrews’ Motion with “with respect to the issue of the
procurement of the policy of insurance and the fashion in which the coverage limit for
[the Building] was determined.”119 However, Brethren argues that the facts relating to
Andrews “purchasing insurance in the first place” and “requesting that the limit for the
business personal property [policy] be set at $500,000” “go to the issue of motive.”120
The disagreement between the parties regarding whether Andrews requested business
income loss coverage and whether he requested the coverage limit to be increased is a
factual issue, which is the province of the jury, and inappropriate for disposition on a
motion in limine. Further, the Court agrees with Brethren, that, if Andrews requested

116
117
118
119
120

Id. ¶ 4; Coverage MIL Opp., Doc. 82 ¶ 4
Coverage MIL Opp. ¶ 5; Coverage MIL ¶ 5.
Coverage MIL Opp. ¶ 5. Contra Coverage MIL ¶ 13 (“At no time did Mr. Andrews request or
demand the stated business loss coverage.”).
Coverage MIL Opp. Br., Doc. 83 at 2.
Id.
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that coverage or the subsequent increase, that it is evidence that may prove motive,
which is a component of Brethren’s arson defense.121
Therefore, the Court will grant Andrews’ Motion to exclude evidence that
Andrews “sought a certain amount of replacement value insurance or asked for an
increase in replacement value insurance coverage.” The Court notes that the relief
sought by Andrews is narrow. The Court does not understand Andrews to be seeking to
exclude evidence relating to the business income loss coverage and the circumstances
regarding Andrews’ initial purchase of either policy.122 Also, Andrews does not ask the
Court to prohibit the introduction of evidence relating to the type or amount of coverage
for purposes other than to suggest that Andrews affirmatively sought a certain coverage
type or amount. The Court’s Order granting Andrews’ Motion therefore will only grant
the narrow relief requested.
IV.

CONCLUSION
For the foregoing reasons, Andrews’ Motions in Limine relating to the purchase

price and sale price of the property are denied; Andrews’ Motions in Limine relating to
the prior water loss, prior fire loss, the expert testimony of Richard Andress, and the
replacement value insurance are granted; and Brethren’s Motion in Limine to exclude
evidence of the absence of an arrest or prosecution is granted.

121

122

The Court also notes that this issue is not presented by Andrews’ Motion See Coverage MIL
Proposed Ord., Doc. 75 (proposing the Court preclude Brethren from “making any reference
or insinuation that [Andrews] “sought a certain amount of replacement value insurance or
asked for an increase in replacement value insurance coverage) (emphasis added). The Court
nevertheless addresses the issue for the avoidance of doubt.
See generally Coverage MIL.
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An appropriate Order follows.
BY THE COURT:

s/ Matthew W. Brann
Matthew W. Brann
Chief United States District Judge

27