Walter et al v. Auto-Owners Mutual Insurance Company et al (TV1)
Filing
98
ORDER denying 58 Defendant's Motion in Limine to Exclude Testimony of Todd Duncan; denying 60 Defendant's Motion in Limine to Exclude the Testimony of Charles Witt; denying as moot 62 Defendant's Motion in Limine to Exclude the Testimony of Maurice Mallia and Mary French-Ewers; and denying 65 Defendant's Motion in Limine to Exclude the Testimony of Greg Lampkin. Signed by Magistrate Judge Debra C Poplin on August 1, 2018. (RLK)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF TENNESSEE
AT KNOXVILLE
MARTIN WALTER, ELIZABETH WALTER, )
GARY WICHROWSKI, JAN WICHROWSKI, )
d/b/a B&G PROPERTIES,
)
)
Plaintiffs,
)
)
v.
)
)
AUTO-OWNERS MUTUAL INSURANCE
)
COMPANY,
)
)
Defendant.
)
No. 3:15-CV-535-TAV-DCP
MEMORANDUM AND ORDER
This case is before the undersigned pursuant to 28 U.S.C. § 636, the Rules of this Court,
and Standing Order 13-02.
Now before the Court are Defendant’s Motions in Limine to Exclude Plaintiffs’ Experts,
Todd Duncan [58], Charles Witt [60], Maurice Mallia and Mary French-Ewers [Doc. 62], and
Greg Lampkin [Doc. 65]. The parties appeared before the Court on May 10, 2018, for a Daubert
hearing. Attorneys Louis A. McElroy, II, and Archie Carpenter appeared on behalf of Plaintiffs.
Attorneys Dean T. Howell and Howard E. Jarvis appeared on behalf of Defendant. No testimony from
Plaintiffs’ expert witnesses was presented. Accordingly, for the reasons more fully set forth below,
the Court DENIES the Motions with respect to Todd Duncan [Doc. 58], Charles Witt [Doc. 60],
and Greg Lampkin [Doc. 65] and DENIES AS MOOT Defendant’s Motion [Doc. 62] with respect
to Maurice Mallia and Mary French-Ewers.
I.
BACKGROUND
This case concerns whether an explosion occurred in Plaintiffs’ building on June 1, 2011,
and whether Plaintiffs’ building was damaged by the alleged explosion. [Doc. 40 at ¶ 7, Doc. 46
1
at ¶ 7]. Plaintiffs disclosed the following experts to testify at trial about the existence of an
explosion, the structural damages caused by an explosion, and the estimation of costs to repair the
damages caused by the explosion: Greg Lampkin (“Lampkin”); Todd Duncan (“Duncan”); Charles
Witt (“Witt”); Maurice Mallia (“Mallia”); and Mary French-Ewers (“French-Ewers”). [Doc. 24]
(Plaintiffs’ Disclosure of Potential Expert Witnesses).1 Defendant has challenged all of their
opinions.2
The Court will first discuss the allegations in the Complaint and then turn to the expert
witnesses’ testimony.
A.
Factual History
Plaintiffs filed their Complaint [Doc. 1-2] on November 6, 2015, and subsequently, on
December 13, 2017, filed a First Amended Complaint for Damages and Breach of Contract [Doc.
40] (“Amended Complaint”).3 In their Amended Complaint, Plaintiffs state that they collectively
own a building located on 7620-22 Clinton Highway in Powell, Tennessee (hereinafter,
“Building”). [Id. at ¶ 2]. Prior to June 1, 2011, Defendant issued an insurance policy to Plaintiffs,
which protected the Building and its contents from the perils listed in the policy. [Id. at ¶ 6].
Plaintiffs allege that on June 1, 2011, a fire and explosion occurred in the Building, causing
damages thereto and to the contents therein. [Id. at ¶ 7]. Plaintiffs continue that the damage was
the type identified and covered under the policy Defendant issued. [Id.]. Plaintiffs state that they
1
Plaintiffs also disclosed David Icove, Ph.D., a professional engineer who works with the
Knox County Fire Investigation Unit. [Doc. 24]. It does not appear, however, that Plaintiffs will
call Dr. Icove as a witness in this case.
2
As discussed below, in response to Defendant’s Motion to Exclude Mallia and FrenchEwers, Plaintiffs stated that they no longer intend to rely on their testimony.
3
The original Complaint was filed in the Circuit Court for Knox County, Tennessee, but
was removed to this Court on December 4, 2015.
2
have timely performed all conditions precedent to recover under the policy and that they have
made a full demand of their loss to Defendant. [Id. at ¶¶ 9-10]. Plaintiffs maintain that Defendant
has not paid the full amount owed to them and that Defendant has breached the contract between
the parties. [Id. at ¶¶ 10-11]. Plaintiffs seek monetary damages in an amount not to exceed the
policy limits of $549,100.00. [Id. at 3].4
Defendant has raised challenges to Plaintiffs’ expert witnesses. Specifically, Defendant
challenges the opinion of Lampkin, a fire investigator for the Knox County Fire Investigation Unit
(“KCFIU”),5 who opines that a “low-order explosion” caused by the ignition of Coleman fuel
occurred in Plaintiffs’ Building. Defendant challenges Lampkin’s methodology in arriving at his
opinion and claims that Lampkin is not qualified to testify as to the cause of the alleged damage
that he discovered in Plaintiffs’ Building.
Next, Defendant challenges the opinion of Duncan, a professional engineer, who opines on
the “structural damages caused by the fire and/or explosion in question at the scene of the loss.”
[Doc. 24]. Defendant argues that Duncan is not qualified to render an opinion about explosions,
and it challenges Duncan’s methodology in arriving at his conclusion.
With regard to Witt, a Tennessee licensed general contractor, Defendant maintains that his
testimony regarding the costs to repair the damages should be excluded because he is not qualified
to offer expert testimony regarding explosions and his methodology is unreliable. Defendant
4
The Court observes that Plaintiffs’ Amended Complaint states that they seek recovery
from Defendant Charles Woods, who caused the fire and explosion in the Building. [Doc. 40 at
¶¶ 8, 12]. Charles Woods, however, was dismissed on November 8, 2016, pursuant to Federal
Rule of Civil Procedure 41(b). [Doc. 7].
5
KCFIU is a specialized unit of the Knox County Sheriff’s Office.
3
explains that any admissible foundation for his conclusions is based on Duncan’s opinion, which
is unreliable.
Finally, Defendant challenges the testimony of Mallia, a structural engineer, and FrenchEwers, an engineer in training. Defendant argues that their testimony concerning the possibility
that the fire incident caused structural movement should be excluded for several reasons.
Specifically, Defendant asserts that Mallia and French-Ewer’s methodology is not reliable and that
they are not qualified to offer their opinions. Plaintiffs have advised the Court that they will not
be calling Mallia and French-Ewers to testify, but Defendant argues that they should still be
deemed unqualified to testify by order of the Court.
The Court will now turn to the testimony of each challenged expert witness.
B.
Testimony of Gregory Lampkin
Lampkin is a fire investigator for the KCFIU, where he has been employed for
approximately twenty-four (24) years. [Doc. 65-1 at 9]. Lampkin is certified through the National
Association of Fire Investigators as a Certified Fire and Explosion Investigator and through the
International Association of Arson Investigators as a Certified Fire Investigator. [Id. at 12]. His
work entails, among other things, responding to fires and conducting investigations into their
origin and cause. [Id. at 9]. He explained that during his training, he experienced two low-order
explosions caused by Coleman fuel. [Id. at 68].
In his deposition, Lampkin testified that he arrived on the scene immediately after he
learned about the fire, which was not long after the fire department arrived. [Id. at 13]. At the
scene, he interviewed several people, took photographs, talked to the firefighters, and began
looking at the Building. [Id.]. Lampkin testified that the fire damage was in the rear portion of
the downstairs but that there was smoke damage throughout the whole Building. [Id.]. Lampkin
4
stated that he discussed the Building’s pre-fire condition with Charles Woods (“Woods”),6 Plaintiff
Martin Walter, and David Phelps (“Phelps”), the maintenance worker. [Id. at 16]. Lampkin was
the lead investigator of this matter until the case was reopened. [Id. at 21].7
Lampkin testified that in his opinion, a low-order explosion occurred when Coleman fuel
was ignited in the basement of Plaintiffs’ Building. [Id. at 8]. Lampkin stated that there was
evidence at the scene that immediately drew his interest to a low-order explosion but that he
confirmed his thoughts with David Icove, Ph.D., a KCFIU investigator and professional engineer,
(“Dr. Icove”) and Dennis Kennamer (“Kennamer”), a fire investigator with the Bureau of Alcohol,
Tobacco, Firearms, and Explosives (“ATF”). [Id. at 16-17]. Lampkin testified that he does not
know the pressure that was generated by the low-order explosion but that Dr. Icove took steps to
determine the speed of the low-order explosion. [Id. at 17].
Lampkin testified that the definition of “low-order damage” is explained in the Summary
Expert Report by the Knox County Sheriff’s Office’s Fire Investigative Unit on the June 1, 2011
Fire and Explosion at 7622 Clinton Highway, Knoxville, Knox County, Tennessee (“Summary
Report”).8 [Id. at 18]. Lampkin stated that the Summary Report references 921 of NFPA in
6
See infra note 4.
7
The Court understands that the fire incident that occurred in the Building was subject to
a criminal investigation. It appears that the criminal case was reopened in 2014 when Woods, the
individual charged with arson, agreed to be debriefed with respect to the incident. [Doc. 65-1 at
92]. Officials believed Woods’s debriefing would uncover new information. [Id.].
8
The Summary Report was identified as Exhibit 4 to Lampkin’s Deposition [Doc. 65-1 at
26-28] and submitted as part of Plaintiffs’ Supplemental Response to the Daubert Motion
regarding Lampkin to further detail his qualifications and the methodology he used in the
investigation [Doc. 74]. Defendant argues in its Reply Memorandum [Doc. 78], without citing
supporting authority, that Plaintiffs’ experts should not be permitted to rely upon the Summary
Report and that the Summary Report should not be considered by the Court in reviewing any of
the Daubert Motions because Dr. Icove has not been deposed concerning the Summary Report
5
defining “low-order damage” as “a slow rate of pressure rise or low-force explosion”9 and
explained that the Summary Report used the word “explosion” to describe low-order damage.
[Id.]. Based on his experience, Lampkin determined that the fire ignition and the low-order
explosion occurred simultaneously. [Id.]. He testified that there was only a single ignition and
while the exact point could not be identified, it was determined that the fire was ignited in the
basement area. [Id. at 18-19]. Lampkin further explained that the Coleman fuel vapors ignited or
exploded and that in his opinion, there was “one fire ignited that most likely caused this low-order
damage and the fire to begin.” [Id.]. When questioned about calculations of the fuel-to-air ratio,
the turbulence effects, or the vapor density of the Coleman fuel, Lampkin stated that he did not
perform calculations. [Id. at 19]. He testified, however, that Dr. Icove did some calculations and
that the vapor density calculations are contained in a written document—The Coleman Fuel
MSDS. [Id.]. The vapor density calculations are also included in the Summary Report. [Doc. 741 at 19].
Lampkin was questioned about his conclusion contained in a report that he authored,
Prosecutive Report, which states, “Evidence of a low-order explosion consistent with a fuel/air
explosion were visible at the scene.” [Doc. 65-1 at 27].10 Lampkin explained that a “fuel/air
explosion” means a mixture between fuel—that is, Coleman fuel vapors—and ambient air. [Id. at
27-28]. Lampkin continued that in a low-order explosion, the pressure moves slowly and affects
[Doc. 78 at 9]. While Defendants may wish to challenge the admissibility of the Summary Report
through a motion in limine or objection at trial, there is no basis upon which to exclude its
consideration for the purposes submitted, i.e., Lampkin’s qualifications and methodology.
9
“NFPA” stands for the National Fire Protection Association. NFPA published 921, which
is the “Guide for Fire and Explosion Investigations.” [Doc. 65-2].
10
The Prosecutive Report was marked as Exhibit 8 to Lampkin’s deposition, [Doc. 65-1 at
25], but was not submitted to the Court for review.
6
the weakest parts of a building. [Id. at 29-30]. Lampkin described signs of low-order damage he
identified in the Building, including (1) the lower garage door was buckled outward; (2) at least
three, if not more, support poles that held the floor system were dislodged; (3) a pole had lifted up
and had a piece of felt paper under it; (4) a wall downstairs had been dislodged out of place; (5)
the corner of a large glass window had been dislodged; and (6) a piece of clothing from the inside
was pinched in between the wall. [Id.]. Lampkin testified that his knowledge of Coleman fuel
and its property and tendency to cause low-order damage when ignited led him to believe that there
was low-order damage in the Building. [Id.]. He did not, however, calculate the pressure or force
required to displace the above structures. [Id. at 22].
Lampkin explained that in a low-order explosion, the force operates in a 360-degree
direction. [Id.]. He stated that force would operate equally against all points of the 2 x 4 wall, the
garage door, and the upstairs window. [Id. at 23]. He testified that although the force would
operate on the container, no force would be exerted on any of the light items in the garage area
because those items would not contain the actual force in a pressurized atmosphere. [Id.]. With
respect to the basement, Lampkin testified that the containing structures include the exterior walls
on the floor and the ceiling. [Id. at 24]. Lampkin stated that the 2 x 4 wall was originally a
container but that “it gave,” explaining that he observed a clean area on the concrete where the 2
x 4 wall appeared to have been. [Id.]. He continued that he is not sure if the wall had moved
before the fire but that Plaintiff Martin Walters and Phelps said that it had not. [Id.].
Turning to the garage door, Lampkin testified that the outward buckling of the door
indicated the effect of a low-order explosion. While acknowledging that it was possible that the
buckle could have resulted from someone pushing the garage door out from the inside or battering
on it to push it out, [id.], Lampkin maintained that the garage door was bulged out as a result of
7
the low-order explosion because it was the weakest link in the containing structure of the basement.
[Id. at 23]. When asked why the explosion damaged the garage door but not other doors that were
closer to the fire, Lampkin explained:
I attribute that to the fact that those doors open inward, which is the
strongest way you’re pushing. You’re not pushing against the door
lock, you’re pushing against the entire door frame, which means
most likely you would have had to have either bend the door or
dislodge the entire frame out of the concrete block as opposed to a
garage door with a broken hinge that was obviously weaker. I don’t
remember what those doors, exterior doors, if they were wood or
metal.
[Id. at 37]. Lampkin continued that the damage was consistent with blast overpressure and wave,
meaning a low-order explosion. [Id. at 38].
In reference to the dislodged poles, Lampkin was asked whether he attempted to rule out
other causes of their displacement. Lampkin testified that he did not but that by his visual
inspection, he did not believe the displacement was caused by settlement. [Id.]. He explained,
“The weight of the floor is going to be constant, so I don’t know, it couldn’t have moved the pole
into a different place. The poles weren’t loose, I’m sure we shook them, so I guess that’s
something I did to check that. The poles were tight when you shook them with your hand.” [Id.].
Lampkin stated that the explosion generated enough force to lift the ceiling of the basement. [Id.
at 39].
Lampkin further testified that the explosion started off as equal in all directions, but as the
explosion met obstacles, the forces changed. [Id. at 63]. The equal force radiated from the
epicenter outward in all directions in a sphere. [Id.]. Lampkin stated that he did not calculate the
kinetic energy that impacted the wall or the basement ceiling. [Id. at 65]. He further stated that
he did not calculate the pressure and that he did not know the amount of force that caused the
damages to the 2 x 4 wall or the front door frame. [Id. at 73, 74, 76]. Lampkin testified that he
8
did not believe it was necessary to know the amount of force generated by the explosion in order
to determine that an explosion occurred because he could look at the end result, [id. at 78], and
maintained that NFPA 921 supports his conclusion that a low-order explosion occurred in the
Building. [Id. at 68].
Lampkin pointed out that the front door frame was bent, which is “very indicative of a blast
low-order damage.” [Id. at 75]. He stated that he observed the damage to the garage door and that
the damage was consistent with pressure that had been redirected. [Id. at 69]. He explained that
most likely, the pressure was redirected by the 2 x 4 wall and traveled to the garage door, which
caused the garage door to bend on the other side of the epicenter. [Id. at 69-70]. When Lampkin
was asked whether the absence of evidence that the force affected lighter items suggests that the
force did not enter the garage, Lampkin responded, “No . . . [b]ecause I don’t think the force was
great enough to move those. The force is attacking the containing vessel, which is the [B]uilding,
not the stuff in it.” [Id. at 73].
When asked about the amount of force required to dislodge the window frame, Lampkin
testified that he did not calculate any forces, but he considered the fact that the window was
dislodged but not broken. [Id. at 83]. He explained that “[NFPA] 921 actually states that it will
dislodge windows but not break them.” [Id.]. He continued that he did not conduct any
experiments to test his hypothesis that the damage was the result of a low-order explosion but that
he discussed with others at the scene what could cause such damage and that he relied on NFPA
921 in determining that it was a low-order explosion. [Id. at 84].11
11
Lampkin also testified that the term “low-order explosion” was used in an earlier version
of NFPA 921, but he does not believe the term is in the current edition. [Doc. 65-1 at 84].
9
Lampkin stated that as part of the scientific method investigating fires, he is required to
test his hypothesis. [Id. at 85].12 Because it is standard to do so, he believed alternative hypotheses
were developed, but at the time of his deposition, he could not recall the alternative hypotheses in
this matter. [Id.]. Lampkin clarified that he did consider another cause of the damage to the front
door and to the garage door. [Id.]. He continued in his testimony that the blast pressure wave
damaged the container but did not dislodge lighter items, which is consistent with NFPA 921. [Id.
at 87]. He explained, “[M]ost of the damage will occur at the vent where the gas is escaping. It
will not necessarily affect the stuff inside as bad as it will on the vessel walls, container, and the
vent.” [Id.].
Finally, Lampkin was asked about what steps he took to verify the condition of the Building
before the fire. Lampkin testified that he would have read inspection reports and walked through
the Building with the occupants to ask questions about the Building’s prior condition as that was
standard practice. [Id. at 91].
C.
Testimony of Todd Duncan
Duncan is a professional engineer. [Doc. 58-7 at 1]. He currently serves as the president
of Structural Engineering Assessments, PC, (“SEA”) and has been with the company since August
1989. [Id.]. His work with SEA, includes forensic review and analysis of structures experiencing
failures or collapse, as well as performing evaluations of existing structures in residential,
commercial, and industrial buildings to determine the condition thereof for potential buyers and
sellers. [Id.].
12
The Court observes that the question was specific to investigating fires, but Lampkin’s
testimony related to alternative hypotheses for the damages he observed. [Doc. 65-1 at 85]. Earlier
in his deposition, Lampkin testified that he could not recall the alternative hypotheses that he
developed with respect to the causation of the fire. [Id. at 9]. He later testified regarding his
alternative hypothesis for the damages in the basement. [Id. at 85].
10
In his expert report, Duncan concludes that the “damage and movement of the structures
are consistent with the pressure caused by an explosion within the structure, as well as the
conclusion of the Knox County Sheriff’s Department of evidence of a low-order explosion.” [Doc.
58-2 at 8]. Throughout his report, Duncan explains why the opinions of John Rast (“Rast”),
Defendant’s expert, are not supported by the physical evidence. For example, with respect to
Rast’s theory that varying soil bearing conditions and moisture caused differential settlement
between the columns, Duncan states this theory is inconsistent with his (Duncan’s) elevation
survey, which indicated little or no differential settlement. [Id. at 2.]. Duncan submits that the
physical evidence of the columns is consistent with the floor system being lifted off the columns.
[Id. at 2-3]. Further, Duncan explains that Rast addressed the outward displacement of the south
exterior wall and concluded that the crack pattern indicated differential settlement. [Id. at 4].
Duncan concludes that Rast’s opinion is incorrect because the horizontal mortar joints were still
aligned across the crack. [Id.].
In addition, Duncan calculated the pressure required to move or collapse the walls and the
ceiling. [Id. at 3]. Duncan ultimately concludes as follows:
Interfire states, “Low[-]order explosion describes an explosion
event where the blast pressure front moves slowly, displacing or
heaving (rather than shattering) objects in its path.” For the
purposes of description and investigation, NFPA 921 seems to
prefer to characterize the damage caused by an explosion to a
structure, rather than characterizing the explosion. Low-order
damage as described by NFPA 921 states, “Low-order damage is
characterized by walls bulged out or laid down, virtually intact, next
to the structure. Roofs may be lifted slightly and returned to their
approximate original position. Windows may be dislodged,
sometimes without glass being broken. Debris produced is
generally large and is moved short distances. Low-order damage is
produced when the blast load is sufficient to fail structural
connections of large surfaces, such as walls or roof, but insufficient
to break up larger surfaces and accelerate debris to significant
velocities.” NFPA also states, “Relatively slow rates of pressure rise
11
will produce the pushing or bulging type of damage effects seen in
low-order damage. The weaker parts of the confining structure or
vessel, such as windows or structural seams, will rupture first;
thereby[,] venting the blast pressure wave and reducing the total
damage effects of the explosion.”
Based upon the observed damage and movement in the noted items,
the majority of the pressure from the explosion was contained in the
large space of the lower (basement) level, in the area between the
east side of the interior wood stud partition wall and the east exterior
wall. The pressure resulted in the lifting of the main level floor
framing system, which pushed the roof framing system upward.
Simultaneous with the movement of the floor and roof systems, the
south exterior wall bulged toward the south providing a large
opening, which allowed the pressure force from the explosion to
reach into the space of the main floor level, forcing the loose mortar
debris . . . onto the main floor, as well as, venting to decrease the
magnitude of the pressure as it diluted in the additional movement
of space. As the floor and roof systems returned to their
approximate pre-explosion position, a second pressure was
generated by the descent of the roof (similar to the pressure created
when the center pole is removed from a tent). The second pressure,
combined with the diluted pressure from the explosion that
remained in the main level floor space, was sufficient enough to
push the base of the metal storefront frame toward the west, which
provided a release for the pressure. The poor condition of the
existing roofing was exacerbated during the lift and drop of the roof
framing system, which resulted in the current leaks. While the
observed conditions were found to match several of the NFPA
conditions characterizing “low-order damage,” the disconnected
components of the referenced building needed less pressure from the
explosion to result in the noted structural damage.
[Id. at 8]. Based on his inspection, Duncan recommends four general structural repairs. [Id. at 7].
During his deposition, Duncan testified that he was not asked to make a determination as
to whether an explosion occurred in the Building and that he will not be offering any opinion
regarding whether an explosion occurred in the Building. [Doc. 58-1 at 5]. He stated that he will
offer testimony as to whether there is evidence that is consistent with an explosion. [Id.]. He
testified that he does not consider himself to be an expert in explosions. [Id.]. He explained that
his work at SEA involves conducting forensic investigations on damaged structures. [Id. at 6]. He
12
also designs structures and oversees the construction process during the installation of building
structures. [Id.]. When asked whether any part of his work involves determining whether
explosions occurred, he responded, “Just in the sense of looking for evidence that is consistent
with an explosion.” [Id.].
Duncan’s consultation work includes assessing catastrophic structural damage from EF4
tornadoes, blasting and explosions, and impact damage from automobiles and trains. [Id.].
Duncan explained that when he does consultations, he determines what damage was caused after
there has been a tornado, explosion, or impact damage. [Id.]. Duncan testified that he has never
been involved in a case wherein he was asked to determine whether an explosion occurred and that
he has never published literature on explosions or fire investigations. [Id. at 7].
Duncan testified that he inspected the Building to look for evidence of damage and to
determine if the damage was consistent with an explosion. [Id. at 8]. Duncan photographed the
damage to the steel flanges, and he determined the pressure that would be required to lift the floor
up over the flanges, which is approximately 21.3 pounds per square foot (“psf”). [Id. at 9-10].
Duncan stated that he did not determine the amount of pressure or force generated by the explosion
in the Building. [Id. at 10].
Duncan stated that he reviewed photographs of the Building that were taken before the fire
and provided by Defendant’s experts and the Sheriff’s Department. [Id.]. He did not review any
photographs of the basement’s condition that were taken before the fire. [Id.]. Duncan testified
that he disagreed with Rast’s conclusion that the Building had settled. [Id. at 12]. Duncan
explained that there was no evidence of settlement and that the base plates were within a quarter
of an inch of each other, which is considered well below the tolerance level allowed for
construction. [Id.]. Duncan further explained that he saw a melted piece of plastic sheeting that
13
was caught between the cap plate and the bottom of the wood beam, which is indicative of the
floor structure being lifted above the cap plate. [Id. at 12-13].
When asked about whether he was offering some type of explosion as the explanation for
certain conditions he observed in the basement, Duncan replied that there was pressure in the
basement. [Id. at 13]. He calculated what the pressure needed to be to displace structures, but he
does not know the amount of pressure generated by the explosion. [Id.]. He stated that based upon
the evidence that he found, it appeared that the floor lifted and pulled the 2 x 4 wall slightly up off
of the floor so that when the pressure made contact with the 2 x 4 wall, it was able to push it west.
[Id. at 16]. He explained that he was not sure if pressure would act equally along the entire part
of the ceiling because pressure starts reacting against itself when it reaches corners. [Id. at 17].
Duncan testified that he is not sure how much pressure reached the western wall or the
garage area. [Id. at 18]. He stated that the pressure caused movement of the south wall and that
7.9 psf of pressure would be required to cause the movement. [Id. at 19]. He also found a crack
at the southeast corner of the south wall. [Id. at 20]. He continued that when the pressure was
generated, it was placed against the lower portion of the wall but not the portion above the main
floor. [Id.]. He continued that as the main floor system elevated at the same time the pressure was
against the wall, the wall pushed out to deflect towards the south. [Id.]. He stated that there was
also separation of the wood framing from the masonry wall sections that showed movement toward
the south. [Id.]. In order to confirm his theory one hundred percent regarding movement of the
south wall, Duncan testified that he would have to know the amount of pressure that was generated.
[Id. at 21].
Duncan testified that he discounted lateral movement due to settlement when he conducted
an elevation survey of the floor system and found that it was fairly level along the wall. [Id.]. He
14
stated that there was insufficient variation to be indicative of settlement of the south wall. [Id. at
22]. When asked whether he took any steps to determine the Building’s condition prior to the fire,
Duncan responded:
A. I always look at the whole building to see if there is any—any signs
of previous movement that would indicate any kind of lateral
loading displacement.
I know Mr. Rast has theorized that the subfloor has expanded out to
push that wall out, but that doesn’t hold water because it’s—the way
that the subfloor framing is put in, it’s at a 45-degree angle. So I
didn’t see any—I’ve not seen any evidence that would show any
prior cause to move that outside wall.
. . . [T]he charts that [Rast] puts in his report talks about the
expansion of the wood with the different relative humilities. And
the – first off, I was out there in the summer so the relative humidity
would have been at its highest point, and I didn’t see any signs of
moving or pushing.
Having it at a 45-degree angle then takes the movement from
pushing directly against the south wall, but pushing it at an angle, so
you’ve knocked 30% of that movement off of that expansion just
because of the placement of the studs – or the planks.
[Id. at 23-24].
Duncan testified that the pressure generated from the event pushed against the ceiling of
the basement (or the floor of the main level), which then pushed the roof of the Building. [Id. at
25]. The pressure also pushed against the south wall, allowing pressure to vent into the upstairs.
[Id.]. Further, Duncan stated that the pressure generated by the downward force of the roof was
sufficient to push out the base of the metal storefront. [Id. at 26]. He testified that the pressure
indirectly affected the roof flashing when the floor caused the roof to raise, causing the flashing to
pull loose. [Id. at 30].
When asked whether he could cite to any scientific or engineering literature that supports
his testimony (i.e., that an explosion event occurring in the basement of the Building could raise
15
the floor above it, which would then raise the ceiling), Duncan replied, “Just experience.” [Id. at
27]. He stated that he has not published any literature. [Id.]. He further testified that he considered
alternative hypotheses for the damage he discovered. [Id. at 34]. Specifically, Duncan testified:
I went in looking for as many possible options as I could. That’s the
way I investigate all my structures. If somebody says they’ve got
wind damage, I go in looking for wind damage, I go in looking for
settlement. I go in looking for lateral pressure. I try to make sure I
cover all the bases so that I tell them how to fix their buildings like
they need to be fixed.
So, yes, I considered as many possibilities that I could think of.
[Id.].
D.
Testimony of Charles Witt
Witt is a licensed contractor in Tennessee. [Doc. 60-2 at 1]. He has had his contractor’s
license since 1992. [Id.]. He is the owner of TCS of Tennessee, Inc. [Doc. 60-1 at 3]. The
majority of his work over the past twenty-two (22) years has consisted of repairing and renovating
existing commercial construction. [Doc. 60-2 at 1]. In addition, he investigates and provides
repair estimates for property owners and insurance companies. [Id. at 2].
With respect to his opinion in this case, Witt opines as follows:
Based upon the scope of work defined by Todd Duncan, my visits
to the scene of the accident and measurements regarding the scope
of work, it is my opinion that a reasonable degree of certainty within
the construction industry that the cost of repairs for the
recommended work is $300,991.91. The breakdown of the work is
computed in Xactimate estimate attached hereto as Exhibit 1.
[Id.].13
13
During his deposition, Witt testified that Xactimate is a computer-generated estimating
program used by the insurance industry. [Doc. 60-1 at 10].
16
During his deposition, Witt testified that he visited the Building two times prior to
providing the costs for repairs. [Doc. 60-1 at 8]. He stated that he does not remember the exact
dates that he visited, but his visits were within a couple of weeks from the date of his report. [Id.].14
He continued that the first time he visited the Building, he and his partner, Reggie Bazel, reviewed
Duncan’s expert report with Duncan. [Id.]. Witt then returned to the Building to “scope[] the
damages.” [Id.]. Witt explained that when he “scoped the damages,” he visited the Building and,
following the guidelines of Duncan’s report, determined what needed to occur to make the repairs.
[Id.]. He stated that on his first visit to the Building, he stayed a couple of hours, and on the second
visit, he was “there the better part of a day.” [Id. at 8-9].
During one of his inspections of the Building, Witt took measurements of what needed to
be torn out, replaced, and repaired. [Id. at 9]. Witt testified that he did not discuss the Building’s
condition before the fire with anyone. [Id.]. In addition, Witt stated that he did not review any
photographs of the Building taken before June 1, 2011. [Id.]. Witt stated that his estimate
regarding the cost of repairs is based on Duncan’s report. [Id.]. He also inspected the Building in
2014 and developed an estimate for the work that needed to be done. [Id.]. Witt stated that his
estimate is based on the condition of the Building as he found it in 2014. [Id.].
In making his estimate, Witt assumed that Duncan’s recommendations were an accurate
assessment of the damage caused to the Building solely from the explosion. [Id. at 10]. He further
assumed that Duncan’s recommendations were accurate as to the extent of the work. [Id.].15 Witt
testified that he reviewed the recommendations in Duncan’s report (A, B, C, and D), visited the
14
Witt’s report is dated October 17, 2014. [Doc. 60-2].
15
As mentioned above, Duncan recommends four general structural repairs, which are
labeled as “A, B, C, and D” in his report. [Doc. 58-2 at 7].
17
Building to scope the damages and to obtain measurements, and then imputed the information into
the Xactimate system to provide an estimate of the costs of repairs. [Id. at 14].
Witt testified that his estimate does not account for whether the Building was constructed
properly when it was built, any previous damage to the Building, the previous construction of the
Building, or any previous settlement of the Building. [Id.].
E.
Testimony of Mallia and French-Ewers
Mallia and French-Ewers submitted a report dated October 11, 2011, at the request of TIS
Insurance Services. [Doc. 62-3]. In their report, they explain that the scope of their inspection
was to determine if the structural damage to the Building could have been related to the fire. [Id.
at 1]. They explained that their report is solely based on visual observations at the site and that no
destructive or material testing was performed. [Id.]. They conclude as follows:
Without knowing how much pressure was produced by a fire,
explosion, or the ignition of an accelerant, it is impossible to say
whether or not the fire incident caused the movement. However,
calculation[s] were performed in order to determine the amount of
pressure it would take to move the stud wall, fail the 12” CMU wall,
and lift the floor and roof framing. Based on the friction between
the wood and the concrete, a pressure of 6.2 psf is needed to move
the base of the stud partition wall. Since the wall was moved about
18”, a pressure greater than 6.2 psf would have been required. In
order to fail the grout and move the 12” CMU wall, a pressure of
11.24 psf would be required. And, a pressure of about 30-35 psf
would be required to lift the floor and roof framing (an estimate
weight of the dead load) to cause the movement seen around the
girder saddles or the post caps on the upper level. If the previously
mentioned pressures are reasonable during the fire incident (whether
it be explosion or ignition of an accelerant), then it is possible that
the fire incident could have caused the movement mentioned in this
report. It does not appear that the observed movements are caused
by failure of the foundation or external loads such as wind and
seismic events.
[Id. at 5].
18
Defendant deposed Mallia on July 30, 2014, and deposed French-Ewers on July 31, 2014.
Although the Court has reviewed their deposition testimony, [Docs. 62-1, 62-2], the Court will not
summarize their depositions because Plaintiffs have represented to the Court that they are not
calling either expert as a witness in this case.
II.
STANDARD OF REVIEW
“Federal Rule of Evidence 702 obligates judges to ensure that any scientific testimony or
evidence admitted is relevant and reliable.” Kumho Tire Co., Ltd. v. Carmichael, 526 U.S. 137,
147 (1999) (quoting Daubert v. Merrell Dow Pharma., Inc., 509 U.S. 579, 589 (1993)).
Specifically, Rule 702 provides 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:
(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 the principles and methods to the
facts of the case.
Fed. R. Evid. 702.
In Daubert, the Supreme Court of the United States stated that a district court, when
evaluating evidence proffered under Rule 702, must act as a gatekeeper, ensuring “that any and all
scientific testimony or evidence admitted is not only relevant, but reliable.” 509 U.S. at 589. The
Daubert standard “attempts to strike a balance between a liberal admissibility standard for relevant
19
evidence on the one hand and the need to exclude misleading ‘junk science’ on the other.” Best v.
Lowe’s Home Ctrs., Inc., 563 F.3d 171, 176–77 (6th Cir. 2009).
The factors relevant in evaluating the reliability of the testimony, include: “whether a
method is testable, whether it has been subjected to peer review, the rate of error associated with
the methodology, and whether the method is generally accepted within the scientific community.”
Coffey v. Dowley Mfg., Inc., 187 F. Supp. 2d 958, 970-71 (M.D. Tenn. 2002) (citing Daubert, 509
U.S. at 593–94). Rule 702 inquiry as “a flexible one,” and the Daubert factors do not constitute a
definitive checklist or test. Kumho Tire Co., 526 U.S. at 138-39 (citing Daubert, 509 U.S. at 593);
see also Heller v. Shaw Indus., Inc., 167 F.3d 146, 152 (3d Cir. 1999) (explaining that these factors
“are simply useful signposts, not dispositive hurdles that a party must overcome in order to have
expert testimony admitted”).
“Although Daubert centered around the admissibility of scientific expert opinions, the trial
court’s gatekeeping function applies to all expert testimony, including that based upon specialized
or technical, as opposed to scientific, knowledge.” Rose v. Sevier Cty., Tenn., No. 3:08-CV-25,
2012 WL 6140991, at *4 (E.D. Tenn. Dec. 11, 2012) (citing Kumho Tire Co., 526 U.S. at 138-39).
“[A] party must show, by a ‘preponderance of proof,’ that the witness will testify in a manner that
will ultimately assist the trier of fact in understanding and resolving the factual issues involved in
the case.” Coffey, 187 F. Supp. 2d at 70-71 (quoting Daubert, 509 U.S. at 593-94). The party
offering the expert has the burden of proving admissibility. Daubert, 509 U.S. at 592 n. 10.
Moreover, the Supreme Court has explained that in determining “whether the expert is
proposing to testify to (1) scientific knowledge that (2) will assist the trier of fact,” the court must
assess “whether the reasoning or methodology underlying the testimony is scientifically valid and
whether it can properly be applied to the facts in issue.” Id. at 592–93. “Furthermore, the court
20
must examine the expert's conclusions in order to determine whether they can reliably follow from
the facts known to the expert and the methodology used.” In re Diet Drugs, No. MDL 1203, 2001
WL 454586, at *7 (E.D. Pa. Feb. 1, 2001) (citing Heller, 167 F.3d at 153).
Further, a court should “exclude proffered expert testimony if the subject of the testimony
lies outside the witness's area of expertise.” In re Diet Drugs, 2001 WL 454586, at *7 (quoting 4
Weinstein's Fed. Evid. § 702.06[1], at 702–52 (2000)). This simply means that “a party cannot
qualify as an expert generally by showing that the expert has specialized knowledge or training
which would qualify him or her to opine on some other issue.” Id. (other citations omitted).
Finally, “the court will not exclude expert testimony merely because the factual bases for
an expert's opinion are weak.” Andler v. Clear Channel Broad., Inc., 670 F.3d 717, 729 (6th Cir.
2012) (quotation marks and citations omitted). Exclusion is the exception, not the rule, and “the
gatekeeping function established by Daubert was never ‘intended to serve as a replacement for the
adversary system.’” Daniels v. Erie Ins. Group, 291 F. Supp. 3d 835, 840 (M.D. Tenn. Dec. 4,
2017) (quoting Rose v. Matrixx Initiatives, Inc., No. 07–2404–JPM/tmp, 2009 WL 902311, at *7
(W.D. Tenn. March 31, 2009)) (other quotations omitted). Rather, “[v]igorous 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.” Daubert, 509 U.S. at 596.
Rule 702 does not “require anything approaching absolute certainty.” Daniels, 291 F. Supp. 3d at
840 (quoting Tamraz v. Lincoln Elec. Co., 620 F.3d 665, 671–72 (6th Cir. 2010)).
III.
ANALYSIS
Guided by the foregoing, the Court will consider Defendant's Motions in Limine.
Defendant raises various claims with regard to each expert, and these will be addressed in turn as
to each expert.
21
A.
Gregory Lampkin
Lampkin opines that there was evidence at the scene of the fire that a low-order explosion
occurred in Plaintiffs’ Building, causing low-order damage.16 Defendant challenges Lampkin’s
qualifications to render his opinion and his methodology. The Court will begin with Lampkin’s
qualifications and then turn to his methodology.
1.
Qualifications
Defendant does not appear to challenge Lampkin’s qualifications as an expert in fire and
explosion investigations. Instead, Defendant asserts that he is not qualified to render an opinion
with respect to the cause of damages to the Building because he is not an engineer. In addition,
Defendant asserts that Lampkin was not designated as an expert witness to testify as to whether an
explosion caused any damages to the Building and he did not provide a written report in
compliance with Federal Rule of Civil Procedure 26(a)(2)(B).
Plaintiffs assert that Lampkin is highly qualified to render his opinions in this case.
Plaintiffs state that Lampkin is an experienced investigator of not only fires, but also explosions.
They note that he is a member of several fire and explosion associations and that he has worked
with the leading expert, Dr. Icove, in this area. A copy of Lampkin’s CV is included in Appendix
A of the Summary Report [Doc. 74].
Although Lampkin is not a structural engineer, the Court finds that he is qualified to render
an opinion regarding whether there was a low-order explosion in the Building, which caused loworder damage. Lampkin is certainly permitted to testify as to his knowledge of low-order
16
As discussed above in section I, Lampkin explained that “low-order damage” was
described as “a slow rate of pressure rise or low-force explosion.” [Doc. 65-1 at 18]. He continued
that the Summary Report, which referenced NFPA 921, used the word “explosion” to describe
low-order damage. [Id.]. The Court will use the phrase “low-order explosion” because this is the
phrase that Lampkin primarily uses in his testimony.
22
explosions and the characteristics of such explosions, as these conclusions are based upon a
sufficient foundation of experience and knowledge. Particularly relevant to this case, Lampkin
has experienced two low-order explosions caused by Coleman fuel during his training. Applying
his training and knowledge of low-order explosions to the described circumstances of Plaintiffs’
Building observed during the investigation, Lampkin reached his opinion that certain damage to
the Building was consistent with a low-order explosion. Specifically, Lampkin testified as follows:
Okay. The signs of low-order damage that we found in the building
were a lower garage door that was buckled outward. There were at
least three, if not more, support poles that held the floor system up
that were dislodged, mis – they were in a different place. There was
a pole that actually had lifted up and had a piece of felt paper laying
under it.
And the front door – at the front door of the building, it had two
glass doors, but to the left of those glass doors was a another glass,
a large glass window, similar to those behind you, and one corner of
it had been dislodged and a piece of clothing from the inside was
actually pinched between it and the wall.
That, with the knowledge of the Coleman fuel and its property and
tendency to cause low-order damage when ignited, we believe that
that’s—that’s what we saw that made us—led us to believe that was
low-order damage in the building.
[Doc. 65-1 at 21].
The Court finds Lampkin is unquestionably qualified to render his opinions based on his
training and experience. Lampkin has been a fire investigator since 1994 for the KCFIU and part
of his responsibilities include responding to fires, conducting investigations in their origin and
cause, and performing follow-up investigations. He is certified through the National Association
of Fire Investigators as a Certified Fire and Explosion Investigator. In addition, he is certified
through the International Association of Arson Investigators as a Certified Fire Investigator. [Id.
at 12]. Here, Lampkin led the investigation and concluded that certain observed conditions in the
23
Building were consistent with a low-order explosion. Lampkin is offered as a fire and explosion
investigator, not a structural engineer. The fact that he may not be familiar with all technical
engineering aspects of a building does not make him unqualified to testify regarding observed
building conditions that are consistent with low-order explosions. Lampkin established that he
had experience with low-order explosions caused by Coleman fuel, the same fuel source identified
in this case, and that he was knowledgeable of NFPA 921, which guides the investigation of
explosions, including characteristic structural damage to be considered in the investigative analysis
of low-order damage. Lampkin’s investigation of a possible explosion necessarily required a
survey of evidence that would be consistent with such cause, and he was able to explain how the
observed conditions in the Building resulted from the force of a low-order explosion. Accordingly,
the Court deems Lampkin qualified based on his knowledge of the effects of such explosions on
building structures.
Further, Defendant argues that Lampkin did not provide a written report in compliance
with Rule 26(a)(2)(B) and that he should be limited to the scope of Plaintiffs’ expert designation.17
Defendant maintains that the word “damages” is not in the designation for Lampkin, and therefore,
he should not be allowed to testify as to damages to the Building. While Defendant is correct that
the word “damages” is not mentioned in Plaintiffs’ designation, the Court notes that Lampkin’s
disclosure includes references to his observations of conditions in the Building as a basis for his
opinion. Specifically, the disclosure states, “In his opinion, there was evidence at the scene of the
17
The Court observes that Defendant simply states that Lampkin “did not provide a written
report in compliance with Rule 26(a)(2)(B).” It is not clear, however, if Lampkin was required to
submit the more detailed report under Rule 26(a)(2)(B). See Fed. R. Civ. P. 26(a)(2)(B)
(discussing disclosure requirements for a witness who is “retained or specially employed to
provide expert testimony in the case or one whose duties as the party’s employee regularly involve
giving expert testimony”). Defendant does not explain this argument, and therefore, the Court will
not analyze it.
24
fire that a low-order explosion consistent with a fuel/air explosion in the [B]uilding had occurred.”
[Doc. 24 at 1]. In addition, the disclosure discusses evidence that the 2 x 4 wall has been pushed
inward and that the mutual support posts showed evidence of movement. Experience and
knowledge as a fire and explosion investigator may qualify one to deduce the likely cause of an
event based on observation and physical evidence. See Green v. State Farm Fire and Cas. Co.,
No. 10-12287, 2011 WL 2412945, at *1 (E.D. Mich. June 14, 2011) (citing e.g., Bitler, v. A.O.
Smith Corp., 391 F.3d 1114, 1125 (1[0]th Cir. 2004) (“Employing his experience and knowledge
as a fire investigator, [the expert] observed the physical evidence at the scene of the accident and
deduced the likely cause of the explosion. Although such a method is not susceptible to testing
or peer review, it does constitute generally acceptable practice as a method for fire investigators
to analyze the cause of fire accidents. . . . Nothing in Rule 702 or Daubert requires more.”).
Here, the investigation of a low-order explosion under the NFPA necessarily involves the
consideration of whether characteristic damage is observed in an affected structure. Lampkin is
guided by the NFPA in his responsibility of investigating and analyzing fire and explosive
incidents and rendering opinions. As previously stated, Lampkin is permitted to testify about
physical evidence he observed relating to conditions of the Building. While these structural
conditions also may be “damages,” simply because Lampkin is not an engineer does not mean he
is unqualified to offer expert opinion about physical observations falling within his area of
expertise as a fire and explosive investigator. The Court notes that while Rule 26(a) seeks to
prevent “ambush at trial” and to “shorten or decrease the need for expert depositions,” R.C.
Olmstead, Inc. v. CU Interface, LLC, 606 F.3d 262, 271 (6th Cir. 2010), “those concerns can
become moot when a deposition is actually taken.” United States v. Roberts, 830 F. Supp. 2d 372,
387 (M.D. Tenn. 2011) (citing E.E.O.C. v. Freemen, 626 F. Supp. 2d 811, 821 (M.D. Tenn. 2009)).
25
“Moreover, because one purpose of Rule 26(a)(2) is to provide notice, a deposition disclosure may
be curative.” Id. (internal quotation marks and citation omitted); see also Daniels, 291 F. Supp.
3d at 846 (stating the same). Here, Lampkin’s deposition was actually taken, and Defendant has
raised no concern that it will be prejudiced at trial based on an inability to adequately prepare for
cross-examination. See id. (explaining that the expert’s “deposition was actually taken more than
three months prior to trial, and defendant “does not argue that it will be prejudiced at trial based
on an inability to adequately prepare for cross-examination”). Accordingly, the Court finds
Defendant’s argument unavailing.
2.
Principles and Methods
Defendant objects to the facts and data supporting Lampkin’s opinions and his
methodology in arriving at his opinion. Specifically, Defendant argues that Lampkin did not
determine the pressure caused by the alleged explosion. In addition, Defendant argues that
Lampkin’s methodology is not relevant or reliable, it is inconsistent with NFPA 921, and it does
not satisfy the Daubert factors. Finally, Defendant argues that Lampkin’s testimony does not fit
the facts of this case.
Plaintiffs argue that Lampkin did not think it was necessary to determine the amount of
force generated by the explosion and that Lampkin followed the scientific method when
conducting his investigation. Plaintiffs state that Defendant does not point to any authority that
requires a determination of the pressure or force that was generated by the explosion.
Defendant’s primary challenge to Lampkin’s opinion is that it is unreliable because he did
not determine the amount of pressure generated by the alleged explosion. Specifically, Lampkin
testified that he did not know the pressure generated by the low-order explosion. [Doc. 65-1 at
17]. In his deposition, and without the necessity of calculating pressure, Lampkin was able to
26
testify how the force of an explosion would operate and how the blast pressure would have been
reflected by certain conditions. For instance, Lampkin explains that with respect to a low-order
explosion, the force would operate in all directions and would operate on the container but not on
the light items. [Id. at 22-23]. Lampkin stated that the light items were in a “pressurized
atmosphere, but there’s not going to be any pressure moving on them because they’re not
containing the actual force.” [Id. at 23]. Lampkin continued explaining how a low-order explosion
affected the structure of the Building and how the force was redirected by certain structures. [Id.
23-25, 69]. While Defendant takes particular issue with the fact that Lampkin did not calculate
the pressure generated by the low-order explosion or the pressure necessary to move the structures,
Lampkin was able to offer testimony as to the explosion pattern and the resulting effects that he
determined were consistent with the NFPA’s guidance for determining a low-order explosion
event. Moreover, Defendant did not identify any citations to NFPA 921 indicating that pressure
or force calculations are necessary measures in the investigation of a low-order explosion event.
Therefore, the Court finds Defendant’s objection to the factual basis of Lampkin’s opinion an
appropriate subject for cross-examination, but insufficient to exclude his testimony under Daubert.
Defendant continues that Lampkin’s methodology is simply observing the damage, citing
to Lee v. Andersen, 616 F.3d 803 (8th Cir. 2010) to support its argument. In Lee, the plaintiff filed
a claim pursuant to 42 U.S.C. § 1983 over the death of her son. Id. at 805. Plaintiff argued that
her son did not possess a gun when officers shot him. Id. at 807-08. In support of her argument,
plaintiff retained an expert who used digital video recording and processing technology to increase
the contrast of video images that were captured by a surveillance camera. Id. at 808. The expert
opined that plaintiff’s son did not have a firearm. Id. When asked what methods and principles
he used to interpret the images, the expert testified that his first method was “simple observation.”
27
Id. The court excluded the expert’s testimony relating to whether plaintiff’s son possessed a gun,
explaining that “the jury does not need assistance in determining whether they can see a gun or
any other object in the decedent’s hand.” Id. at 805. The Eighth Circuit Court of Appeals affirmed
the court’s decision, finding that the expert’s “opinion would not have assisted the jury but rather
would have told it what result to reach.” Id. at 809.
The facts in Lee are distinguishable from the instant matter. In Lee, the jury was capable
of looking at a video to determine whether the individual possessed a gun—no specialized
knowledge was necessary. Here, any evidence of an explosion requires specialized knowledge of
which a layperson is unfamiliar. Further, Lampkin testified that his knowledge of Coleman fuel
and its property and tendency to cause low-order damages when ignited led him to believe that
there was low-order damage to the Building. [Doc. 65-1 at 22]. Contrary to Defendant’s assertion,
Lampkin’s reasoning and ultimate conclusion is not based solely on observations of conditions in
the Building, but include facts and data collected during the investigation, his experience and
knowledge as a fire and explosion investigator, and his reliance on NFPA 921.
Next, Defendant argues that Lampkin must be disqualified because of various other issues
with his methodology. Specifically, Defendant asserts that Lampkin’s methodology does not
conform to NFPA 921, his methodology does not fit the facts of the case, and his methodology
does not satisfy Daubert standards.
The parties seem to agree that NFPA 921 is the appropriate standard for reliable principles
and methods. Defendant disputes whether Lampkin reliably applied NFPA 921 to the facts of the
case. Defendant argues that Lampkin failed to collect data, analyze data, develop a hypothesis,
test his hypothesis, and select a final hypothesis.
28
This Court has already recognized “that NFPA 921 is a peer reviewed and generally
accepted standard in the fire investigation community.” Travelers Indem. Co. v. Indus. Paper &
Packaging Corp., No. CIVA302CV491PHILLIPS, 2006 WL 1788967, at *4 (E.D. Tenn. June 27,
2006) (collecting cases).
“Although following NFPA 921 indicates the reliability of an
investigator’s methods, a departure from the document’s guidelines is not necessarily in and of
itself grounds for automatic disqualification.” Travelers Cas. Ins. Co. v. Volunteers of Am. Ky.,
Inc., No. 5:10-301-KKC, 2012 WL 3610250, at *3 (E.D. Ky. Aug. 21, 2012) (citing Thompson v.
State Farm Fire and Cas. Co., 548 F. Supp. 2d 588, 592 (W.D. Tenn. 2008)).
The 2017 edition of NFPA 921 recommends that fire investigators follow the scientific
method in seven steps: (1) recognize the need/identify the problem; (2) define the problem; (3)
collect data; (4) analyze the data; (5) develop a hypothesis (inductive reasoning); (6) test the
hypothesis (deductive reasoning); and (7) select the final hypothesis. [Doc. 65-2 at 2]. Defendant
asserts that Lampkin failed to perform steps three through seven, but the Court finds otherwise.
Defendant argues that Lampkin did not collect “crucial data” and proceeds to list seventeen
areas that Lampkin did not analyze. NFPA 921 describes collecting data and analyzing data as
follows:
Collect Data: Facts about the fire incident are now collected by
observation, experiment, or other direct data-gathering means. The
data collected is called empirical data because it is based on
observation or experience and is capable of being verified or known
to be true.
Analyze the Data: The scientific method requires that all data
collected be analyzed. This is an essential step that must take place
before the formation of the final hypothesis. The identification,
gathering, and cataloging of data does not equate to data analysis.
Analysis of the data is based on the knowledge, training, experience,
and expertise of the individual doing the analysis. . . . Understanding
the meaning of the data will enable the investigator to form
hypotheses based on the evidence, rather than on speculation.
29
[Doc. 65-2 at 3].
Lampkin explained in his deposition that he participated in the investigation as the lead
investigator. [Doc. 65-1 at 21]. He inspected the Building, he photographed the scene, he
interviewed witnesses, he discussed the Building’s condition prior to the accident with the
occupants, he discussed the matter with the firefighters at the scene, he made observations to the
structure, and he discussed the evidence and his initial thoughts regarding a low-order explosion
occurring in the Building with Dr. Icove and Kennamer. [Id. at 13, 16-17]. After his investigation,
he concluded that the cause of the fire was the ignition of Coleman fuel, which caused a low-order
explosion. [Id. at 18-19]. Lampkin determined the evidence of a low-order explosion was
consistent with a fuel/air explosion visible at the scene. [Id. at 27]. He testified that his knowledge
of Coleman fuel and its property and tendency to cause low-order damage when ignited led him
to believe that low-order damage existed in the Building. [Id. at 21].
As previously discussed, experience and knowledge as a fire investigator may qualify one
to deduce the likely source of a fire based on observation of physical evidence. See Bitler v. A.O.
Smith Corp., 400 F.3d 1227, 1235 (10th Cir. 2005). In this case, Lampkin explained his data
collection and analysis process during his deposition and further supplemented the information
with the Summary Report. Defendant’s critiques of Lampkin’s shortcomings are proper subjects
for cross-examination, and the Court finds that “weaknesses in the factual basis of an expert
witness’ opinion . . . bear on the weight of the evidence rather than on its admissibility.” United
States v. L.E. Cooke Co., 991 F.2d 336, 342 (6th Cir. 1993). See Potts v. Martin & Bayley, Inc.,
No. 4:08-CV-00015-JHM, 2011 WL 4703058, at *4 (W.D. Ky. Oct. 4, 2011) (defendant’s
complaint regarding these allegedly unaccounted for factors goes to the weight of the testimony,
not its admissibility); Spears v. Cooper, No. 1:07-cv-58, 2008 WL 5552336, at *5 (E.D. Tenn.
30
Nov. 17, 2008) (“[C]redibility attacks, such as the use of incorrect or incomplete data in
formulating an opinion, are intended for cross-examination.”); see also [Doc. 65-2 at 4] (NFPA
921) (“The evidence that indicates an explosion occurred includes damage or change brought about
by blast overpressure as an integral element, producing physical effects on structures, equipment,
and other projects.”). As the Court in Daubert stated: “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.” Daubert, 509 U.S. at 595.
Next, Defendant argues that Lampkin did not develop, test, or select a hypothesis. With
respect to developing a hypothesis, NFPA 921 states, “Based on the data analysis, the investigator
produces a hypothesis, or hypotheses, to explain the phenomena . . . These hypotheses should be
based solely on the empirical data that the investigator has collected through observation and then
developed into explanations for the event, which are based upon the investigator’s knowledge,
training, experience, and expertise.” [Doc. 65-2]. As mentioned above, Lampkin testified that his
investigation, knowledge, and experience led him to believe an explosion occurred in the Building
and that the evidence was consistent with NFPA 921. [Doc. 65-1 at 16-19, 68]. Defendant argues
that Lampkin’s testimony is unreliable because during his deposition, which was taken almost six
years after the 2011 incident, he stated that he could not recall his alternative hypotheses in this
case.18 Lampkin went on to add, however, that he believed he developed other hypotheses because
it is standard to do so, and when Defendant specifically questioned him about alternative
considerations that might explain some of the conditions of the Building, Lampkin was able
provide a response. For instance, Lampkin was asked whether the 2 x 4 wall could have been
dislodged by the stream of water from the firehose used to extinguish the fire, and he responded
18
See infra p.10 and note 12.
31
that “it was very unlikely.” [Doc. 65-1 at 90]. Similarly, when asked about the damage to the
garage door, he ruled out other considerations, such as damage caused by a vehicle or a crowbar.
[Id. at 85]. Thus, it is apparent that Lampkin gave consideration to other explanations for
conditions that he observed in the Building, and Defendant’s arguments suggesting otherwise may
be presented to the jury to consider and weigh.
Further, NFPA 921 states, “Testing of the hypothesis is done by the principle of deductive
reasoning, in which the investigator compares the hypothesis to all known facts as well as the body
of scientific knowledge associated with the phenomena relevant to the specific incident.” [Doc.
65-2 at 3]; see also Volunteers of Am. Ky, Inc. 2012 WL 3610250, at *4 (finding expert’s testimony
admissible when he relied on deductive reasoning and concluding defendant’s argument that the
expert did not properly test his opinions against all of the evidence “bears on the weight” of the
opinions, as opposed to their admissibility); Travelers Indem. Co., 2006 WL 1788967, at *4
(“expert testimony has been held to be consistent with NFPA 921 and satisfy Daubert without
independent testing”) (other citations omitted). NFPA 921 continues, “A hypothesis can be tested
physically by conducting experiments, analytically by applying accepted scientific principles, or
by referring to scientific research.” [Doc. 65-2 at 3]. Here, Lampkin offered testimony that given
the property of Coleman fuel, it has a tendency to cause low-order damages when ignited and that
the evidence he observed and inspected was consistent with NFPA’s description of the explosion.
[Doc. 65-1 at 21-22, 68]. Lampkin also testified why certain areas and items were not damaged,
while other areas and items were damaged. [Id. at 73]. In addition, he relied on the occupant’s
description on the condition of the Building prior to the fire. [Id.]. Lampkin concluded that a loworder explosion occurred consistent with Coleman fuel/ambient air reaction and further observed
that the damage to the Building was consistent with such an explosion. See [Doc. 65-2 at 4] (NFPA
32
921) (“The evidence that indicates an explosion occurred includes damage or change brought about
by blast overpressure as an integral element, producing physical effects on structures, equipment,
and other projects.”).
Although Defendant criticizes Lampkin’s opinion for lack of testing, Defendant has not
suggested what tests should have been prepared or what material evidence those tests would have
yielded. Moreover, NFPA 921 is a guide defined as “[a] document that is advisory or informative
in nature and that contains only nonmandatory provisions.” Thompson, 548 F. Supp. 2d at 592
(citing NFPA 921 ch. 1.3.69).
While following NFPA 921 indicates the reliability of an
investigator's methods, any departure from the document's guidelines is not necessarily in and of
itself grounds for automatic disqualification. Id. Whether any testing would undercut or support
Lampkin’s conclusion is a matter that goes to the weight of his testimony and is not determinative
with respect to the admissibility of his testimony. Expert testimony has been held to be consistent
with NFPA 921 and satisfy Daubert without independent testing. See Erie Ins. Co. v. Sunbeam
Prod., Inc., No. 2:12-CV-00703, 2015 WL 127894, at *7 (S.D. Ohio Jan. 8, 2015) (stating that
although the expert “did not perform physical experiments to test his hypothesis, NFPA 921
specifically provides that testing is done by the principle of deductive reasoning”); Travelers
Indem. Co., 2006 WL 1788967, at *4 (permitting an expert fire investigator to testify without
performing physical testing); McCoy v. Whirlpool Corp., No. Civ.A 02-2064, 2003 WL 1923016,
at *3–4 (D. Kan. Apr. 21, 2003) (stating that “independent testing is not the sine qua non of
admissible under Daubert”); Donegal Mut. Ins. v. White Consolidated Ins., 852 N.E.2d 215, 225
(Ohio Ct. App. 2006) (disagreeing with defendant’s argument that the expert’s lack of testing the
hypothesis rendered the opinion inadmissible); see also Abon, Ltd., v. Transcontinental Ins. Co.,
No. 2004-CA-0029, 2005 WL 1414486, at *10 (Ohio Ct. App. June 16, 2005) (explaining that
33
“courts have found deductive reasoning and process of elimination to be credible scientific
evidence”).
Considering the foregoing, the Court is satisfied that Lampkin’s testimony is grounded in
the generally accepted methodology outlined in NFPA 921, which recognizes a proper role for
deductive reasoning, and is more than mere unsupported speculation or subjective belief. Lampkin
used reliable principles and methods to form his opinion and applied those principles and methods
fairly to the facts of this case. Lampkin’s professional experience, combined with his knowledge
of Coleman fuel, reliance on NFPA 921, along with his collection and analysis of available data
(inspected the Building the night of the fire; interviewed witnesses, including the occupants;
discussed the matter with firefighters; confirmed his belief with Dr. Icove and Kennamer;
photographed the scene; and observed the damage to the structures) satisfies the Court. Defendant
may challenge the degree of credibility the jury ought to accord Lampkin’s opinions by presenting
counter evidence to refute their veracity.
Defendant also asserts that the term “low-order explosion” is not utilized in NFPA 921 and
that Lampkin’s use of the term is “another example of a methodological flaw.” [Doc. 66 at 15].
As mentioned above, it is not clear if the proper term is “low-order explosion” or “low-force
explosion.” Lampkin testified that NFPA 921 defines “low-order damage” as “a slow rate of
pressure rise or low-force explosion.” [Doc. 65-1 at 18]. He stated that NFPA 921 used the word
“explosion” to describe “low-order damage.” [Id.]. Later, during his deposition, Lampkin was
asked whether the term “low-order explosion” was used in NFPA 921. [Id. at 84]. Lampkin
responded that the term was used in an earlier version but that it is not used in the current version.
[Id.].
34
Again, it is not clear to the Court whether the correct term is actually “low-force explosion”
or whether the term “low-order explosion” was simply used in an earlier edition. If the latter is
true, the fact that the 2017 edition of NFPA 921 no longer utilizes this term is not a reason to
exclude Lampkin’s testimony, given that Lampkin did not have the 2017 edition when he
investigated the incident in 2011. If the former is true, the Court finds that this is not a reason to
exclude his testimony. This is certainly an area that can be addressed on cross-examination.
Defendant further argues that Lampkin’s opinions do not fit the facts of this case. Whether
his opinions fit the facts of this case “goes to the question of helpfulness to the trier of fact.” Stoots
v. Heckler & Koch, Inc., 299 F. Supp. 814, 829 (W.D. Tenn. 2004). As to whether or not a loworder explosion occurred in the Building, there is a connection between the testimony being offered
and the issue in this case. The Court finds Lampkin’s testimony helpful and that Defendant’s
concerns regarding the facts can be addressed through vigorous cross-examination. See id. (“More
importantly, however, that factual weaknesses may eventually be shown in [the expert’s] opinions
does not require the Court to bar his testimony at this stage. Such concerns go to the weight, not
the admissibility, of his testimony.”).
Defendant is free to conduct a “[v]igorous cross-
examination” and/or present evidence to the contrary. Daubert, 509 U.S. at 596.
Finally, Defendant argues that Lampkin’s methodology does not satisfy the Daubert
factors. Defendant asserts that Lampkin did not undertake testing in order to attempt to validate
his methodology and conclusions; his methodology has not been subject to peer review; his
methodology is not supported by peer-reviewed scientific or engineering literature; he did not
provide any rate of error; and his methodology is not generally accepted in the scientific
community.
35
As discussed above, Lampkin testified his opinion is consistent with NFPA 921, which
both parties acknowledge is the generally accepted standard in the fire and explosion investigation
community.
NFPA 921 sets forth recommendations and guidelines for investigation, not
requirements. Therefore, any deviation from NFPA’s guidelines is not dispositive. Alford v.
Allstate Ins. Co., No. 12-cv-14238, 2013 WL 12181846 (E.D. Mich. July 8, 2013) (citing People
v. Jackson, No. 272776, 2008 WL 2037805, at *1 (Mich. Ct. App. May 13, 2008)). While
Defendant argues that Lampkin did not conduct any testing, NFPA 921 provides that “[t]esting of
the hypothesis is done by the principle of deductive reasoning, in which the investigator compares
the hypothesis to all known facts as well as the body of scientific knowledge associated with the
phenomena relevant to the specific incident.” [Doc. 65-2 at 3]. Further, expert testimony has been
held to be consistent with NFPA 921, and satisfy Daubert, without independent testing. See Erie
Ins. Co., 2015 WL 127894, at *7; McCoy, 2003 WL 1923016, at *3. Moreover, Defendant’s
argument that Lampkin’s opinions were not subject to peer review is misplaced.19 It is not
Lampkin’s conclusions that have to be peer reviewed, but rather the theories underlying the
forensic investigation standards in NFPA 921, which he used to formulate his conclusions. Erie
Ins. Co., 2015 WL 127894, at * 7 (citing Daubert 509 U.S. at 593); see also Ky. Farm Bureau
Mut. Ins. Co. v. Hitachi Home Elecs., No. 3:08-30-DCR, 2009 WL 2589854, at *4 (E.D. Ky. Aug.
20, 2009) (“Thus, these scientific theories underlying the forensic fire investigative techniques [in
NFPA 921] have already been tested and deemed reliable.”). Lampkin testified about the steps
taken in his investigation and the results thereof, and any criticism that his investigation was less
than a strictly textbook inquiry goes to the weight of his testimony, and not its admissibility.
19
Specifically, during his deposition, Lampkin was questioned as to whether anyone peer
reviewed his opinions in this case. [Doc. 65-1 at 83]. Lampkin testifies, “I believe Mr. Icove has
peer reviewed them.”
36
Based on the foregoing, the Court finds that Lampkin’s reliance on NFPA 921 and his
experience meets the qualification requirements pursuant to Rule 702. The Court finds that
Defendant’s arguments go towards the weight of the evidence rather than its admissibility.
Accordingly, Defendant’s Daubert Motion in Limine to Exclude the Testimony of Greg Lampkin
[Doc. 65] is DENIED.
B.
Todd Duncan
Defendant raises two primary challenges to Duncan’s testimony. First, Defendant argues
that he is not qualified to offer an opinion on whether an explosion occurred in the Building.
Second, Defendant asserts that Duncan’s methodology is not relevant, reliable, or consistent with
the standards under Daubert.
The Court will address Defendant’s challenges separately.
1.
Qualifications
Defendant asserts that by his own admission, Duncan is not permitted to offer any expert
opinion testimony on whether an explosion occurred in the Building. Defendant emphasizes that
Duncan specifically answered, “No,” when asked whether he considered himself an expert on
explosions. Defendant continues that Duncan does not have the necessary training, education, or
experience with respect to explosions.
Plaintiffs submit that Defendant’s argument is misplaced. Plaintiffs acknowledge that
Duncan is not an expert on explosions. Plaintiffs state that Duncan does not need to be such an
expert to know that an explosion occurred or caused damage. Plaintiffs state that Duncan, through
his education, training, and experience, is an expert on physical forces and reading evidence caused
by such forces.
37
As mentioned above, Duncan is a professional engineer and is the owner of SEA. [Doc.
58-1 at 6; Doc. 58-7 at 1]. He obtained his Bachelor of Science degree in 1985 in civil engineering,
and he majored in structural engineering. [Doc. 58-7 at 6]. He is affiliated with the American
Society of Civil Engineers, the Structural Engineering Institute, and the Tennessee Building
Officials Association. [Id.]. In addition, he is a past board member of the City of Knoxville
Building Board of Adjustments and Appeals. [Id.] His work involves consultations, where he
assesses catastrophic structural damage from EF4 tornados, blasting and explosions, and impact
damages from automobiles and trains. [Id.]. During his deposition, Duncan testified that with
respect to such consultations, they are limited to determining what damage was caused and not
what caused the damage. [Doc. 58-1 at 6]. He further testified that he performs forensic
investigations for damaged structures. [Id.]. When asked whether his work with SEA involves
determining whether explosions occurred, he answered, “Just in the sense of looking for evidence
that is consistent with an explosion.” [Id.].
The Court finds Duncan qualified to render his opinions in this case. Duncan is not an
expert on explosions, nor does he purport to be an expert on explosions. While Duncan may not
render an opinion as to whether an explosion actually occurred, he may offer opinions that the
damages in the Building are consistent with the structural damages seen from an explosion. Given
his extensive background in engineering, his professional experience of performing forensic
investigations, and his experience in looking for evidence consistent with damages from
explosions, the Court finds Duncan qualified to render his opinion in this case.
2.
Principles and Methods
Defendant asserts that Duncan’s testimony is neither relevant nor reliable. Defendant’s
primary challenge to Duncan’s testimony is that Duncan did not calculate the pressure generated
38
by the explosion. Defendant continues that while pressure is the basis of Duncan’s opinion, he
failed to quantify the pressure of the explosion. Defendant maintains that this is fatal to the
admissibility of Duncan’s opinion.
Plaintiffs argue that it is not necessary to determine the amount of pressure generated by
the explosion and that Defendant may cross examine Duncan on this issue. Plaintiffs argue that
Duncan relied on the physical evidence to support his opinion and that he considered many
alternatives with respect to the damage before forming his conclusion. Plaintiffs argue that his
opinions are based on a universally-accepted method—that is, NFPA 921—and that he obtained
sufficient facts and data to support his opinions.
With respect to calculating the amount of force generated by the explosion, the Court
disagrees with Defendant for similar reasons explained above. Specifically, the Court finds that
Defendant may properly cross examine Duncan as to why the pressure was not calculated and that
Defendant may present contrary evidence to attack the veracity of Duncan’s opinion. At this point,
however, Defendant has not pointed to any authority requiring pressure calculations in the
determination of a low-order explosion pursuant to NFPA 921. “Testing of the hypothesis is done
by the principle of deductive reasoning, in which the investigator compares his or her hypothesis
to all the known facts as well as the body of scientific knowledge associated with the phenomenon
relevant to the specific incident. A hypothesis can be tested either physically by conducting
experiments or analytically by applying scientific principles in ‘thought experiment.’” Dorn v.
BMW of N. Am., LLC, No. 09-1027-WEB, 2010 WL 3913226, at *5 (D. Kan. Sept. 30, 2010)
(citing NFPA 921, 4.3.6). Testing is not a prerequisite to admissibility. See id. at *14 (explaining
that Rule 702 does not require “actual testing by the expert”); see also Jacobs v. Tricam Indus.,
Inc., 816 F. Supp. 2d 487, 493 (E.D. Mich. 2011) (explaining that “testing is not required in every
39
case, particularly where, as here, the expert conducted an examination of the physical evidence”)
(citing Clark v. Chrysler Corp., 310 F.3d 461, 467 (6th Cir. 2002) (“Daubert does not require an
expert to come in an actually perform tests in any given situation”), vacated on other grounds, 540
U.S. 801 (2003)); Crouch v. John Jewell Aircraft, Inc., No. 3:07-CV-638-DJH, 2016 WL 157464,
at *3 (W.D. Ky. Jan. 12, 2016) (stating that while “testing is always desirable, [it] is not a
prerequisite to admissibility”) (other citations omitted).
Here, Duncan’s testimony is based on a reliable exercise of his engineering expertise and
forensic experience to the available facts.
Although Defendant maintains that Duncan’s
conclusions have not been validated, citing to Duncan’s deposition testimony wherein he testifies
that he cannot one hundred percent confirm that the event generated enough pressure to move the
wall, Rule 702 does not “require anything approaching absolute certainty.” Daniels, 291 F. Supp.
3d at 840 (quoting Tamraz, 620 F.3d at 671–72).
Defendant asserts that Duncan’s methodology is unreliable for a number of other reasons.
For instance, Defendant argues that Duncan’s first visit to the Building was on February 29, 2012,
which was more than eight months after the fire on June 1, 2011, and that he did not return to the
Building until the summer of 2014. Further, Defendant submits that Duncan did not determine the
condition of the Building prior to the incident and that the damage could be the result of other
causes. Duncan, however, testified that he did consider many other reasons for the damage,
including settlement of the Building. Further, the Court finds such areas are subject to vigorous
cross-examination and presentation of contrary evidence but are not reasons for exclusion. See
40
Andler, 670 F.3d at 729 (explaining that weakness in an expert witness’s factual basis is not a
reason for exclusion).20
As part of his investigation, Duncan inspected the Building to determine if the damage was
consistent with an explosion, he photographed the damaged structures, he considered alternative
theories as to the damages, he reviewed photographs of the Building that were taken prior to the
fire, he conducted an elevation survey, and relied upon his professional experience. The Court is
satisfied that his testimony meets the Daubert principles.
Finally, Defendant argues that Duncan’s methodology does not satisfy the Daubert factors
because Duncan did not test his conclusions, his methodology has not been peer reviewed, he did
not determine the rate of error, and his methodology is not generally accepted in the scientific
community. Defendant also asserts that Duncan’s opinion was developed solely for this litigation.
The Court disagrees that Duncan should be excluded from testifying in this case.
Defendant argues that Duncan did not perform a specific test (i.e., determining the pressure
generated by the explosion), but Duncan inspected the Building, performed an elevation survey,
and testified that he considered all possible causes for the observed damages in the Building. [Doc.
58-1 at 34]. Further, in his expert report, Duncan relies on NFPA 921, a generally accepted source,
that characterizes the type of damage that he observed in the Building. [Doc. 58-2 at 7]. The
Court also does not find that Duncan developed his opinions solely for this litigation as his work
consists of performing consultations with respect to damages observed after explosions. [Doc. 581 at 6]. Finally, with respect to the rate of error and whether Duncan’s methodology has been peer
20
Defendant also argues that Duncan filed an affidavit, claiming to have personal
knowledge that the pressure was caused by an explosion within the structure. [Doc. 59 at 16].
Defendant requests that the Court strike the affidavit pursuant to Rule 56(c)(4). The affidavit [Doc.
33-1], however, was filed in opposition to Defendant’s Motion for Summary Judgment, which is
not before the undersigned.
41
reviewed, the Court has considered these factors, but in light of Duncan’s professional experience,
investigation of the Building, and reliance on NFPA 921, the Court does not find these factors fatal
to the admissibility of his opinion. SCA Hygiene Prod. Aktiebolag v. First Quality Baby Prod.,
LLC, 250 F. Supp. 3d 244, 262 (W.D. Ky. 2017) (“Therefore, the lack of peer review or error rates
is not fatal.”). Accordingly, the Court finds Defendant’s Motion in Limine to Exclude the
Testimony of Todd Duncan [Doc. 58] is DENIED.
C.
Charles Witt
Defendant challenges Witt’s testimony because he relied upon Duncan’s opinion.
Defendant asserts that because Duncan’s opinion should be excluded, Witt’s opinion should also
be excluded. Defendant maintains that should the Court grant its Motion regarding Duncan, there
would be no valid basis for Witt’s proposed testimony.
As explained above, the Court declines to exclude Duncan’s testimony in this case.
Accordingly, the Court finds no basis to exclude Witt from testifying as to the costs of repairs, and
therefore, Defendant’s Motion in Limine to Exclude the Testimony of Charles Witt [Doc. 60] is
DENIED.
D.
Maurice Mallia and Mary French-Ewers
As mentioned previously, Defendant’s Motion challenges Mallia’s and French-Ewer’s
qualifications and their methodology. In response, Plaintiffs state that Defendant’s Motion should
be rendered moot because they do not intend to rely on Mallia’s and French-Ewer’s opinions at
trial. In its Reply, Defendant asserts that Plaintiffs did not object to the Motion, meaning that all
the reasons set forth for exclusion of the witnesses are undisputed.
During the hearing in this matter, Defendant maintained that its Motion should be granted.
For grounds, Defendant argued that it believed Duncan relied on Mallia and French-Ewers’s
42
report, but it would need to confirm.21 Plaintiffs stated that it is unfair to deem Mallia and FrenchEwers unqualified to render an opinion in this matter, given that Plaintiffs do not intend to rely on
their testimony. Subsequently, after the hearing in this matter, Defendant filed a Supplemental
Brief [Doc. 84], stating that Plaintiffs filed an exhibit list that indicated that they may use the
“reports, drawings, tables, photos, and exhibits to reports prepared by Mary French-Ewers” and
the “reports, drawings, tables, photos, and exhibits to reports prepared by Maurice Mallia.” [Doc.
84 at 1] (citing [Doc. 81 at ¶¶ 18-19]). The Court ordered [Doc. 85] Plaintiffs to respond to
Defendant’s Supplemental Brief, given that Plaintiffs’ exhibit list was contrary to the
representations made to the Court at the May 10 hearing.
Plaintiffs filed a Reply to Defendant’s Supplemental Brief, stating as follows: “Plaintiffs
have no intention on using Maurice Mallia or Mary French-Ewers as experts. Plaintiffs have no
intention of using the reports, drawings, or calculations contained in their reports. This writer
made that representation to the court at the oral argument on the Daubert motions and it remains
true.” [Doc. 86 at 1]. Plaintiffs explain that they named Mallia and French-Ewers on their exhibit
list under the heading “if needed” in the event Defendant uses the witnesses’ information.
Plaintiffs continue that they did not want to be barred from using these same reports on crossexamination because, at the hearing, Defendant would not agree to restrict these witnesses for both
parties.
Although Defendant insists that the expert witnesses should be excluded based on their
qualifications and methodology, the Court finds no reason to make such findings, given Plaintiffs’
representations to the Court that they will not utilize any information provided by Mallia and
21
Upon the Court’s review of Duncan’s deposition testimony and his report, it does not
appear that Duncan relied on Mallia and French-Ewers’s opinions in forming his own conclusions.
43
French-Ewers in this case. The purpose of Defendant’s Motion is to exclude these witnesses at
trial—Plaintiffs have agreed not to use them. Accordingly, the Court finds Defendant’s Motion in
Limine to Exclude the Testimony of Maurice Mallia and Mary French-Ewers [Doc. 62] DENIED
AS MOOT.
IV.
CONCLUSION
Accordingly, for the reasons set forth above, the Court finds as follows:
1. Defendant’s Motion in Limine to Exclude the Testimony of
Todd Duncan [Doc. 58] is DENIED;
2. Defendant’s Motion in Limine to Exclude the Testimony of
Charles Witt [Doc. 60] is DENIED;
3. Defendant’s Motion in Limine to Exclude the Testimony of
Maurice Mallia and Mary French-Ewers [Doc. 62] is DENIED
AS MOOT; and
4. Defendant’s Motion in Limine to Exclude the Testimony of
Greg Lampkin [Doc. 65] is DENIED.
IT IS SO ORDERED.
ENTER:
_______________________
Debra C. Poplin
United States Magistrate Judge
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