Certain Underwriters at Lloyds, London v. Pettit

Filing 73

ORDER denying Plaintiffs' 70 Motion for Reconsideration signed by Judge Ricardo S. Martinez. (TH)

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UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF WASHINGTON
AT SEATTLE

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CERTAIN UNDERWRITERS at LLOYD’S,
LONDON, Subscribing to Policies
Numbered 8029663, 8001778, 8071754,
8072492, 8072737, and 8071620,

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ORDER DENYING PLAINTIFFS’
MOTION FOR RECONSIDERATION

Plaintiffs,

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Case No. C17-259RSM

v.

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JEFF PETTIT, an individual,
Defendant.

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This matter comes before the Court on Plaintiffs’ Motion for Reconsideration. Dkt.
#70. The Court has determined that response briefing is unnecessary. See LCR 7(h)(3).

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Plaintiffs seek reconsideration of the Court’s Order Granting in Part Defendant’s

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Motion in Limine, Dkt. #51. In that Order, the Court ruled that “Mr. Way’s expert opinions

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that defects in Defendant’s power cord adapter or inlet were due to ‘movement, corrosion,
damage and improper maintenance’ are not admissible under FRE 702.” Dkt. #51 at 7. The

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Court reached this ruling after considering the reliability factors set forth in Daubert I, infra,

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finding that “Mr. Way’s theories as to the above causes of ignition are generally accepted

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ORDER DENYING PLAINTIFFS’ MOTION FOR RECONSIDERATION - 1

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within the relevant scientific community, but that the theories have not been adequately tested
as to the facts of this case.” Id.

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Plaintiffs now argue that the Court’s ruling is clear error resulting in manifest injustice.

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Dkt. #70 at 1. Plaintiffs explain that Mr. Way’s metallurgical analysis established “electrical

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activity” on one of the receptacle spades for the power cord at issue, leading to the conclusion
that there was series arcing, which could only occur in high resistance electrical connections,

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and that the only way the shore power connection could have developed high resistance was if

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there was a gap between the conductors, which only forms due to looseness, dirt or grit, or

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corrosion, and that proper maintenance should have detected and/or prevented such a condition,
and that this situation was unsafe and likely contributed to the fire. Id. at 2 (citing Dkt. #70).

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Plaintiffs argue that because Mr. Way followed NFPA 921, his conclusions are reliable.1 Id. at

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5–6. Plaintiffs repeat many of their prior arguments about the sufficiency of the testing, and

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argue that the sufficiency of testing goes to weight, not admissibility. Id. at 7–10.

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“Motions for reconsideration are disfavored.” LCR 7(h)(1). “The court will ordinarily

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deny such motions in the absence of a showing of manifest error in the prior ruling or a

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showing of new facts or legal authority which could not have been brought to its attention

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earlier with reasonable diligence.” Id.

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Under Rule 702, the trial court acts as a gatekeeper and ensures that the proffered
scientific testimony meets certain standards of both relevance and reliability before it is
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As Plaintiffs point out, NFPA 921 states in part that “[i]n order to conform to the scientific method, once a
hypothesis is developed, the investigator must test it using deductive reasoning.” Dkt. #49 at 294. However, it goes
on to state that “[t]he investigator does not have a valid or reliable conclusion unless the hypothesis can stand the
test of careful and serious challenge,” and that “a hypothesis can be tested physically by conducting experiments,
analytically by applying accepted scientific principles, or by referring to scientific research, “ but that “[w]hen
relying on the research of others, the investigator… must ensure that the conditions, circumstances and variables of
the research and those of the hypothesis are sufficiently similar.” Id. Importantly, “[t]he testing process needs to
be continued until all feasible hypotheses have been tested and one is determined to be uniquely consistent with the
facts and with the principles of science,” and “[i]f no hypothesis can withstand an examination by deductive
reasoning, the issue should be considered undetermined.” Id.

ORDER DENYING PLAINTIFFS’ MOTION FOR RECONSIDERATION - 2

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admitted. Daubert v. Merrell Dow Pharm., Inc. ("Daubert I"), 509 U.S. 579, 590, 113 S. Ct.

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2786, 125 L. Ed. 2d 469 (1993). The party proffering expert testimony has the burden of

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showing the admissibility of the testimony by a preponderance of the evidence. Daubert I, 509

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U.S. at 592 n.10. “[J]udges are entitled to broad discretion when discharging their gatekeeping

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function” related to the admission of expert testimony. United States v. Hankey, 203 F.3d
1160, 1168 (9th Cir. 2000) (citing Kumho Tire Co. v. Carmichael, 526 U.S. 137, 150-53, 119 S.

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Ct. 1167, 143 L. Ed. 2d 238 (1999)). Expert testimony must be reliable. The Supreme Court in

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Daubert I set forth the following factors for the trial court to consider when assessing the

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reliability of proffered expert testimony: (1) whether the expert’s method, theory, or technique
is generally accepted within the relevant scientific community; (2) whether the method, theory,

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or technique can be (and has been) tested; (3) whether the method, theory, or technique has

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been subjected to peer review and publication; and (4) the known or potential rate of error of

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the method, theory, or technique. 509 U.S. at 593-94.

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The Court first finds that Plaintiffs do not present any new argument, or new facts

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which could not have been brought to the Court’s attention earlier with reasonable diligence.2

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Turning to the issue of manifest error, after reviewing this Motion, the Court continues to find

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that Mr. Way’s opinions relied in part on speculation, and that although he did some testing,

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including deductive reasoning, he did not adequately test each of the hypotheses upon which

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his ultimate conclusions were based, or adequately test other feasible hypotheses. Exclusion
was proper under FRE 702 and Daubert I, and Plaintiffs have failed to demonstrate manifest
error in the Court’s prior Order.

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Plaintiffs state they “made the tactical decision” in their Response to Defendant’s Motions in Limine “to focus
[their] response to the broad attack based on purported lack of evidentiary support for [their] expert opinions, rather
than the methodologies and testing employed by Mr. Way,” and that “[t]hose issues are more fully discussed in this
motion.” Dkt. #70 at 3 n.4.

ORDER DENYING PLAINTIFFS’ MOTION FOR RECONSIDERATION - 3

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Having reviewed the relevant briefing and the remainder of the record, the Court hereby
finds and ORDERS that Plaintiffs' Motion for Reconsideration, Dkt. #70, is DENIED.

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DATED this 23 day of October, 2018.

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A

RICARDO S. MARTINEZ
CHIEF UNITED STATES DISTRICT JUDGE

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ORDER DENYING PLAINTIFFS’ MOTION FOR RECONSIDERATION - 4