Barnett v. ProCom Heating, Inc.
Filing
28
MEMORANDUM OPINION AND ORDER granting 19 MOTION to Exclude the Expert Testimony of David R. Sneed and Johnie P. Spruiell, P.E. filed by ProCom Heating, Inc. The court ORDERS that defendant's motion to exclude be, and is hereby, granted, and Sneed and Spruiell will not express any opinions to the effect that the heater at issue was defective or that a defect in the heater caused the fire. (Ordered by Judge John McBryde on 4/2/2018) (tln)
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U.S. DISTRICT COURT
NORTHERN DISTRICT OF TEXAS
~]~~~~
IN THE UNITED STATES DISTRICT C URT
NORTHERN DISTRICT OF TEXAS
FORT WORTH DIVISION
CLElU(, U.S. DISTIUCT COURf
DAVID BARNETT,
§
BY-----;::--c------
Deputy
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Plaintiff,
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§
vs.
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NO. 4:17-CV-380-A
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PROCOM HEATING, INC.,
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Defendant.
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MEMORANDUM OPINION AND ORDER
Came on for consideration the motion of defendant, Procom
Heating, Inc., to exclude the expert testimony of David R. Sneed
("Sneed") and Johnie P. Spruiell, P.E.
("Spruiell"). The court,
having considered the motion, the response of plaintiff, David
Barnett, the reply, the record, and applicable authorities, finds
that the motion should be granted.
I.
Plaintiff's Claims
The operative pleading is plaintiff's first amended
complaint filed June 20, 2017. Doc. 1 8. In it, plaintiff alleges
that a heater manufactured by defendant malfunctioned during
operation and emitted a candling flame instead of concentrated
hot air, engulfing plaintiff's hangar and its contents in flames.
Specifically, plaintiff says that the heater had a design or
manufacturing defect in a set screw that caused the fan blades to
1
The "Doc.
"reference is to the number of the item on the docket in this action.
detach from the motor shaft, causing a flame,
rather than hot
air, to be emitted due to poor combustion. Plaintiff asserts
claims for strict products liability, negligence, breach of
express and implied warranties, and violation of the Texas
Deceptive Trade Practices-Consumer Protection Act.
II.
Grounds of the Motion
Plaintiff has designated Sneed as an expert on the fire's
cause and origin, and Spruiell as an expert on the alleged defect
in the heater. Defendant says that Spruiell is not qualified to
render an opinion concerning the alleged defect in the design of
the heater. Further, the opinions of both Sneed and Spruiell are
unreliable.
III.
Standards Applicable to Expert Testimony
Rule 702 of the Federal Rules of Evidence provides:
A witness who is qualified as an expert by
knowledge, skill, experience, training, or education
may testify in the form of an opinion or otherwise if:
(a) the expert's scientific, technical, or other
specialized knowledge will help the trier of fact to
understand the evidence or to determine a fact in
issue;
(b) the testimony is based on sufficient facts or
data;
(c) the testimony is the product of reliable
principles and methods; and
(d) the expert has reliably applied the principles
and methods to the facts of the case.
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Thus, for expert testimony to be admissible, the expert must be
qualified and his testimony must be relevant and reliable. In
determining the admissibility of expert testimony, the trial
court acts as gatekeeper, following the guidance of the Supreme
Court in Daubert v. Merrell Dow Pharm.,
Inc., 509 U.S. 579
(1993), and Kumho Tire Co. v. Carmichael, 526 U.S. 137 (1999)
As for qualification, the court must ensure that those who
purport to be experts have expertise concerning the actual
subject about which they offer opinions. Gammill v. Jack Williams
Chevrolet, Inc., 972 S.W.2d 713, 719 (Tex. 1998); Broders v.
Heise,
924 S.W.2d 148, 153
(Tex. 1996). For example, in Wilson v.
Woods, a reputable fire investigator was prevented from
testifying as an accident reconstruction expert because his
expertise was no greater than that of. any other individual with a
general scientific background. 163 F. 3d 935, 938
(5th Cir. 1999).
Credentials alone are not determinative; the expert must be
qualified to give an opinion on a particular subject.
Christophersen v. Allied-Signal Corp., 939 F.2d 1106, 1112-13
(5th Cir. 1991).
As for reliability, both parties cite to Mondis Tech., Ltd.
v. LG Electronics,
Inc., which explains:
To satisfy the reliability prong of Daubert, an
expert's opinion testimony must be based upon
"sufficient data" and must be "the product of reliable
principles and methods" that are "reliably" applied "to
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the facts of the case." Fed. R. Evid. 702 & advisory
committee note. When evaluating the reliability of the
proffered testimony of an expert, "Rule 702 demands
that expert testimony relate to scientific, technical
or other specialized knowledge, which does not include
unsubstantiated speculation and subjective beliefs."
Diviero v. Uniroyal Goodrich Tire Co., 114 F.3d 851,
853 (9th Cir. 1997) (citing Daubert, 509 u.s. at 590).
"The reliability analysis applies to all aspects of an
expert's testimony: the methodology, the facts
underlying the expert's opinion, and the link between
the facts and the conclusion." Knight v. Kirby Inland
Marine, Inc., 482 F.3d 347, 355 (5th Cir. 2007) (quoting
Heller v. Shaw Indus., Inc., 167 F.3d 146, 155 (3d Cir.
1999)). "But nothing in either Daubert or the Federal
Rules of Evidence requires a district court to admit
opinion evidence which is connected to existing data
only by the ipse dixit of the expert." General Elec.
Co. v. Joiner, 522 u.s. 136, 146 (1997). However,
"[w]hen the methodology is sound, and the evidence
relied upon sufficiently related to the case at hand,
disputes about the degree of relevance or accuracy
(above this minimum threshold) may go to the
testimony's weight, but not its admissibility." i4i
Ltd. P'ship v. Microsoft Corp., 598 F.3d 831, 852 (Fed.
Cir. 2010). That is, a trial court is not permitted
under Daubert to "transform a Daubert hearing into a
trial on the merits." Pipitone v. Biomatrix, Inc., 288
F.3d 239, 250 (5th Cir. 2002).
No. 2:07-CV-565-TJW-CE, 2011 WL 2417367, at *1 (E.D. Tex. June
14, 2011).
IV.
Analysis
Plaintiff does not dispute that to meet his burden of proof,
he must show that the heater was defective and there was a causal
connection between the defect and the fire. Plaintiff has
designated Spruiell as an expert regarding the defect. Defendant
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maintains that Spruiell is not qualified to testify on that
subject because he lacks specific, particular expertise,
education, or training in the area of oil-fired or kerosene-fired
heaters. Spruiell testified that he had a general mechanical
engineering background, but had not done a job involving a heater
like the one at issue and had no particular expertise regarding
it. Doc. 20 at 89. Nor was he an expert or did he ordinarily deal
with photoelectric or flame preempting devices like the heater at
issue had. Id. at 123. Although it appears that Spruiell has
spent the bulk of his career "doing forensic engineering on
individual different types of products," id. at 86, 123-24,
plaintiff has not shown that Spruiell's work qualifies him to
give an opinion in this case. See, e.g., Roman v. Western Mfg.,
Inc., 691 F.3d 686, 692-93
(5th Cir. 2012) (although mechanical
engineer had no experience with stucco, he had a Ph.D. in his
field and had worked extensively with the same kind of pumps as
the one in issue); Koenig v. Beekmans, No. 5-15-CV-00822-RCL-RBF,
2017 WL 6003022, at *2-3
(W.D. Tex. Dec. 1,2017)
(neuropsychologist with over 30 years• experience performing
assessments of patients with traumatic brain injuries was
qualified to criticize clinical use of particular test at issue
even though he had no specialized knowledge regarding it) .
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Defendant additionally urges that, even if Spruiell is
qualified to testify, his opinions concerning the defect in the
heater are unreliable and, therefore, inadmissible. Under
Spruiell's theory, a defect allowed the set screw holding the fan
blade to the shaft of the fan motor to become loosei and, the fan
blade came off the shaft of the fan motor before plaintiff
started the heater on the day of the fire. According to Spruiell,
[o]ur opinion is that the set screw in the fan hub
became loose previous to the fire, during heater
operation. Then, when [plaintiff] applied the slosh
test to check fuel level, the loose fan came off the
motor shaft. When the heater then was operated, poor
combustion due to lack of fan operation caused flames
to issue from the front, serving as the ignition source
for the hangar fire.
Doc. 20 at 34.
The evidence submitted with regard to the motion reflects
that: The fire took place on February 11, 2014. Doc. 20 at 26.
Sneed met with plaintiff at the scene of the fire on February 24,
2014, and took the heater to his laboratory. Id. at 27-28. On
March 18, 2014, Sneed and Spruiell examined the heater at Sneed's
laboratory by removing the top cover and visually inspecting what
was underneath. Id. at 28. The fan was not connected to the shaft
of the motor, but lying in front of it. The set screw remained in
place in the fan hub, but had backed out about .015 inches. Id.
Sneed and Spruiell do not know the exact cause for the
loosening of the set screw. Doc. 20 at 32. Spruiell would expect
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that if the fan/hub/shaft assembly were properly designed, and if
the set screw were properly tightened at the factory, minor
vibrations encountered during operation would not loosen the set
screw. But, aerodynamic coupling between the fan blades and
nearby air vanes at the back of the combustion chamber "could
have played a role." Id. And,
"[e)ventually, the result could be
loosening of the set screw." Id. However, Spruiell did not do any
testing to establish that such a loosening could have occurred.
Id. at 118-19. Rather, he relied on a hunch. Id. at 118.
Photographs taken during the inspection of the heater show that
the cover could have been taken off after the fire and before
Sneed and Spruiell made their inspection. Id. at 117. In
addition, markings on the shaft of the fan motor are consistent
with the set screw being tightened,
insufficiently tightened.
loosened, and then
Id. at 104-05. If the set screw had
worked its way loose and moved along the shaft on its own, one
would expect to find a scrape along the shaft, but there is none.
Id. at 119-20.
Q. But the second indentation would have been--the
first indentation would have been made from the
torquing of the set screw?
A. That's right. At the factory.
Q. The second indentation, in your mind, was not the
result of torquing of the set screw, but wobbling of
the hub on the shaft?
A. Once the set screw had gotten loose enough to escape
from the first factory indentation.
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Q. Okay. Why do we not see evidence of a scrape mark
between the two indentations?
A. I don't know.
Q. Is that something that you would expect to find if
no human intervention was involved in--between the
first and the second indentations?
A. I really don't know why there's not a scrape. One
would think there would be at least some small scrape,
but I don't have an explanation for that.
Q.
. I'm not saying that the set screw was or was
not loose, but I'm just saying physically what we see
here is consistent with the set screw being unscrewed
and then re-screwed in a different location. I'm not
saying that that happened. I'm just saying the evidence
is consistent with that.
A. That is a way to interpret the evidence.
Spruiell's theory that the set screw simply became loose on its
own is nothing more than ipse dixit.
Spruiell further theorizes that once the set screw became
loose and the fan moved closer to the motor (that is, slightly
rearward,
id. at 32), the fan came off the opposite end of the
shaft when plaintiff performed a slosh test to determine how much
fuel was in the heater. Id. at 31. Spruiell did not talk to
plaintiff about how the slosh test was performed, i.e., how high
he lifted the handle or how hard he bumped one or both wheels on
the threshold of the doorway. Id. at 95-97. He did not do any
testing of an exemplar heater to determine whether the fan blade
could fall off during a slosh test and if so, whether the person
performing the test would hear it fall.
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Id. at 95. Again, the
opinion is simply based on the ipse dixit of the expert. Because
the analytical gap between the data and the opinion is too great,
the testimony will be excluded. General Elec. Co. v. Joiner, 522
u.s. 136, 146 (1997)
0
Defendant additionally, and alternatively, maintains that
Sneed's causation theory is unreliable due to a number of missing
facts. As set forth in the Guide for Fire and Explosion
Investigations, NFPA 921, which Sneed purported to follow:
The ignition sequence of a fire event is defined as the
succession of events and conditions that allow the
source of ignition, the fuel, and the oxidant to
interact in the appropriate quantities and circumstance
for combustion to begin. Simply identifying a fuel or
an ignition source by itself does not and cannot
describe how a fire came to be. Fire results from the
interaction of fuel, an oxidant, and an ignition
source. Therefore, the investigator should be cautious
about deciding on a cause of a fire just because a
readily ignitable fuel, potential ignition source, or
any other of an ignition sequence's elements is
identified. The sequence of events that allow the
source of ignition, the fuel, and the oxidant to
interact in the appropriate quantities and
circumstances for combustion to begin, is essential in
establishing the cause.
Doc. 20 at 10-11. Here, Sneed was unable to testify to the
temperature of the flames emitted by the heater, the ignition
temperature of the material that caught fire, how close the
material was to the flames emitted by the heater, or how long the
material was exposed to flames emitted by the heater. Doc. 20 at
62,
65-66. He simply made the leap that a properly functioning
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heater could not have caused the fire to the conclusion that a
malfunctioning heater must have caused the fire because there was
a fire.
Further, NFPA 921 requires that the cause determination for
the fire account for the actions of safety devices. Id. at 13.
But Sneed testified that the safety features were beyond his
scope. Id. at 79-80. Plaintiff says that Sneed relied upon
Spruiell's opinions in this regard, but does not point to any
testimony or opinion of Spruiell regarding the heater's safety
devices. Doc. 25 at 17. As previously noted, Spruiell testified
that safety devices was not an area he practices in ordinarily.
Doc. 20 at 123. And, his report simply makes the conclusory
statement that he and Sneed "believe that in this case, overall
evidence indicates that the heater either did not shut off, or
shut off too slowly." Id. at 33. They simply had "insufficient
information" to evaluate the safety features of the heater. Id.
That the safety device failed because there was a fire is the
kind of circular reasoning that is not helpful to the trier of
fact and must be excluded.
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v.
Order
For the reasons discussed,
The court ORDERS that defendant's motion to exclude be, and
is hereby, granted, and Sneed and Spruiell will not express any
opinions to the effect that the heater at issue was defective or
that a defect in the heater caused the fire.
SIGNED April 2, 2018.
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