Zens v. Slatkin & Co., Inc., et al
OPINION AND ORDER denying 40 Motion to Exclude Expert; denying 46 Motion to Exclude Expert. Signed by U.S. District Judge Charles B. Kornmann on 3/18/14. (SKK)
UNITED STATES DISTRICT COURT
DISTRICT OF SOUTH DAKOTA
MAR 2 1 2U14
RYAN C. ZENS and ASHLEY A. ZENS,
OPINION AND ORDER ON
MOTIONS TO EXCLUDE EXPERTS
SLATKIN & CO., INC., BATH & BODY
WORKS LLC, and BATH & BODY WORKS *
LLC d/b/a THE WHITE BARN CANDLE CO., *
AERON LIFESTYLE TECHNOLOGY, INC., *
Third Party Defendant. *
Defendants and Third Party Plaintiffs,
Plaintiffs instituted this diversity action seeking damages arising out of a fire in their
Redfield, South Dakota, home which plaintiffs claim was caused by a Wallflower plug-in
fragrance diffuser which they purchased from Bath and Body Works. Plaintiffs claim defendants
are liable for negligence, failure to warn, strict liability, and breach of warranties. Defendants
filed a third party complaint against the manufacturer, Aeron Lifestyle Technology, seeking
contribution and indemnity.
Plaintiffs have filed a motion to exclude two of defendants' designated experts pursuant
to Fed. R. Evid. 702 and Daubert v. Merrell Dow Phann.. Inc., 509 U.S. 579, 113 S.Ct. 2786,
125 L.Ed.2d 469 (1993). The third party defendant filed a motion to exclude one of plaintiffs'
experts on the same basis.
The fire at issue occurred on August 30, 2008. A number of investigations and reports
soon followed. The Redfield Fire Department issued a report. The fire was also investigated by
Larry Creighton of Advanced Investigative Services ("AIS") and he issued a report. Dennis
Smith from Kodiak Fire & Safety Consulting of Ft. Wayne, Indiana, was retained to examine the
fire scene and issued a report. Cowan Engineering and Consulting took photographs of the fire
scene and issued a report. Nathan Taarud, an American Family Insurance adjuster also took
pictures of the fire scene. A number of items were recovered from the fire scene by the several
investigators, including a duplex receptacle (an electrical outlet), the remains of a Wallflower
fragrance diffuser from the area of origin of the fire, and a Wallflower fragrance diffuser that was
purchased at the same time and used in another room.
The artifacts collected from the fire scene were sent to Anderson Engineering ofNew
Prague, Inc. in July 2012. A joint examination by Beth Anderson, plaintiffs' forensic electrical
engineering expert, and Larry Hanke of Materials Evaluation and Engineering, Inc. ("MEE") was
conducted in October 2012.
Anderson opines that the Wallflower unit had defective insulation on the inside wiring,
allowing electrical arcing and a resulting fire. She concludes this based upon her observation of
the unit. She claims the unit shows the presence of "demarcation," a sharp line between melted
and unmelted copper wires. She claims the scientific community considers demarcation a sign of
internal arcing, as opposed to damage caused by heat resulting from fire external to the unit. She
bases her opinion, in part, upon the NFPA 921 Guide for Fire and Explosion Investigations.
Scientific Expert Analysis ("S.E.A.") of Columbus, Ohio, was retained by defendants to
review the results of evidence examinations and review and analyze the various reports. The
investigation was assigned to Robert Carbonara, a materials scientist. He reviewed the reports
from Anderson Engineering, MEE, and AIS. He examined exemplar Wallflower units and
outlets but did not examine the actual unit and outlet from the fire.
Daniel Churchward, a forensic fire investigator and owner of Kodiak, was retained by
defendants. He conducted an examination of artifacts removed from the fire scene and held at
Anderson Engineering's laboratory in Minnesota. Church ward and James Small conducted
research and testing on exemplar Aeron air fresheners at the SEA laboratory in Columbus, Ohio,
and at Kodiak's laboratory. Churchward reviewed reports from an on-site investigation
conducted by his employee, Dennis Smith, as well as reports by Larry Creighton from AIS, Larry
Hanke from MEE, and from Anderson Engineering.
Carbonara opines that there was no arcing in the Wallflower unit which allegedly caused
the fire. He contends that Anderson's conclusion that demarcation is present and is evidence of
arcing is based upon old science and is no longer accepted in the scientific community. Both
Carbonara and Churchward opine that there must have been external damage to the unit's plug or
the outlet caused by moving furniture or some other significant external force and that applied
force was the cause of the fire. They base this opinion, in part, upon wall damage present near
the outlet. Any melting of the wires internally to the Wallflower unit, they contend, was the
result of an external fire.
Plaintiffs contend that Carbonara's opinions are unreliable because he does not accept
that a sharp line of demarcation is proof of an electrical arcing event which, plaintiffs contend,
renders his scientific methodology unreliable because it has no basis in scientific fact. Plaintiffs
contend that neither of defendants' experts conducted any testing on the unit in question, and
contend that such experts base their opinions as to the cause of the fire on speculation that the
unit was damaged. Defendants counter that Anderson's opinion is unreliable because it is based
upon an NFP A guideline which will soon be revised.
Pursuant to Fed. R. Evid. 702,
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
(b) the testimony is based on sufficient facts or data;
(c) the testimony is the product of reliable principles and methods; and
(d) the expert has reliably applied the principles and methods to the facts
The district judge conducts an initial inquiry as part of its "gatekeeping" obligation to
determine whether the proffered testimony is "scientific, technical, or other specialized
knowledge" and whether the evidence will "assist the trier of fact to understand the evidence or
to determine a fact in issue." Daubert, 509 U.S. at 590-91, 113 S.Ct. at 2795. Thus, the district
court must determine whether the "scientific testimony or evidence is not only relevant, but
reliable." Vasquez v. Colores, 648 F.3d 648,653 (8th Cir. 2011). Put another way, the district
court must determine whether "the expert's methodology is reliable and can be reasonably
applied to the facts of the case." David E. Watson, P.C. v. United States, 668 F.3d 1008, 1015
(8th Cir. 2012). The gatekeeping function serves "to make certain that an expert, whether basing
testimony upon professional studies or personal experience, employs in the courtroom the same
level of intellectual rigor that characterizes the practice of an expert in the relevant field." Kuhn
v. Wyeth, Inc., 686 F.3d 618, 625 (8th Cir. 2012) (quoting Kumho Tire Co .. Ltd. v. Carmichael,
526 U.S. l37, 152, 119 S.Ct. 1167, 143 L.Ed.2d 238 (1999)). "[T]he court's inquiry is intended
to be flexible." Scroggin v. Wyeth, 586 F.3d 547, 565 (8th Cir. 2009).
To satisfy the reliability requirement, the party offering the expert
testimony must show by a preponderance of the evidence both that the
expert is qualified to render the opinion and that the methodology
underlying his conclusions is scientifically valid. To satisfy the relevance
requirement, the proponent must show that the expert's reasoning or
methodology was applied properly to the facts at issue.
Khoury v. Phillips Medical Systems, 614 F.3d 888, 892 (8th Cir. 2010) (internal quotations and
Third party defendants contend that plaintiffs' expert's opinion should be excluded for
the same reason that her opinion was excluded in Fireman's Fund Ins. Co. v. Canon USA. Inc.,
394 F.3d 1054 (8th Cir. 2004). In Fireman's Fund, the Eighth Circuit held that the "opinion ofa
qualified expert witness is admissible if (1) it is based upon sufficient facts or data, (2) it is the
product of reliable principles and methods, and (3) the expert has applied the principles and
methods reliably to the facts of the case." Fireman's Fund v. Canon, 394 F.3d at 1057. In
Fireman's Fund, Anderson's opinion was excluded because she did not apply the National Fire
Protection Association ("NFPA") Standard 921 reliably to the facts of the case. Fireman's Fund,
394 F.3d at 1057-58. In other words, she did not reconcile her theory of the fire's origin based
upon testing of exemplar copiers with empirical data obtained from the fire scene and appropriate
testing of the actual copier involved in the fire. Fireman's Fund v. Canon, 394 F.3d at 1059. Of
course, that finding was fact specific to Anderson's work in that case.
In Russell v. Whirlpool Corp., the Eighth Circuit noted that, while Fireman's Fund held
that NFP A 921 qualifies as "a reliable method endorsed by professional organizations," "we have
not held NFP A 921 is the only reliable way to investigate a fire. Our NFP A 921 cases stand for
the simple proposition an expert who purports to follow NFP A 921 must apply its contents
reliably." Russell v. Whirlpool Corp., 702 F.3d at 455.
"In the context of fire investigations, we have held expert opinions formed on the basis of
observations and experience may meet this reliability threshold." Russell v. Whirlpool Corp.,
702 F.3d 450,457 (8th Cir. 2012) (citing Shuck v. CNH America, 498 F.3d 868, 875 (8th Cir.
2007) and Hickerson v. Pride Mobility Prods. Corp., 470 F.3d 1252, 1257 (8th Cir. 2006)). The
parties in Shuck argued the experts' testimony was not based on a reliable methodology because
they did not test damaged combine parts, exemplar combine parts, or oil from the combine. The
Eighth Circuit held in Shuck that failure to test the unit in question" did not necessarily render
the experts' methodology flawed nor opinions inadmissible." Shuck v. CNH America, Inc., 498
F.3d at 874. Rather, the Eighth Circuit held that the experts used reliable methods when they
"observed the relevant evidence, applied their specialized knowledge, and systematically
included or excluded possible theories of causation." Shuck v. CNH America. Inc., 498 F.3d at
In Hickerson, the defendant challenged the plaintiffs expert's conclusion that a motorized
power scooter caused a house fire, claiming it was too speculative because the expert failed to
eliminate other potential ignition sources. The Eighth Circuit found "nothing unreliable" in the
expert's methodology, in which he considered bum patterns, identified a point of origin, and
eliminated as many alternative causes of the fire as possible. Hickerson, 470 F.3d at 1257.
The Eighth Circuit held that "[w]e have found reliability in these cases [Shuck and
Hickerson] without insisting upon rigid adherence to the Daubert factors. As our prior case law
instructs, we have reached these conclusions by examining the facts of each individual case,
considering the Daubert factors to the extent they fit the facts." Russell v. Whirlpool Corp., 702
F.3 at 457.
I find that the opinions of Anderson, Carbonara, and Churchward are sufficiently reliable
to go to the jury. Each expert bases his or her opinion on accepted methodology. I reject the
contention that Anderson's opinions are based upon a scientific standard that will be rejected in a
future publication. I reject plaintiffs' contention that the defendants' experts' opinions are based
upon speculation about damage to the outlet or Wallflower unit. They noted there was damage to
the wall near the outlet that appeared to have occurred prior to the fire and claimed to have
eliminated any other cause of the fire.
Historically, district courts have reviewed expert testimony to determine whether it is
based upon generally accepted scientific principles or is instead "junk science." The judge's role
in analyzing Rule 702 and Daubert "is to prevent juries from being swayed by dubious scientific
testimony." Russell v. Whirlpool Corp., 702 F.3d at 456. Accord, In re Zurn Pex Plumbing
Prods. Liab. Litig., 644 F.3d 604, 613 (8th Cir. 20 II) ( "The main purpose of Daubert exclusion
is to prevent juries from being swayed by dubious scientific testimony"). No expert in this case
has employed "dubious" scientific reasoning. That the opinions are subject to attack as being
contrary to other expert's opinions and being inconsistent with other facts are matters for the
jury. "Vigorous cross-examination, presentation of contrary evidence, and careful instruction on
the burden of proof are the traditional and appropriate means of attacking shaky but admissible
evidence." Russell v. Whirlpool Corp., 702 F.3d at 458 (quoting Daubert, 509 U.S. at 596, 113
IT IS ORDERED:
1. Plaintiffs' motion, Doc. 40, to exclude defendants' experts is denied.
2. Third party de~dant's motion, Doc. 46, to exclude an expert is denied.
Dated this $ctrryofMarch, 2014.
BY THE COURT:
CHARLES B. KORNMANN
United States District Judge
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