United States District Court, D. South Dakota, Northern Division
RYAN C. ZENS and ASHLEY A. ZENS, Plaintiffs,
SLATKIN & CO., INC., BATH & BODY WORKS LLC, and BATH & BODY WORKS LLC d/b/a THE WHITE BARN CANDLE CO., Defendants and Third Party Plaintiffs,
AERON LIFESTYLE TECHNOLOGY, INC., Third Party Defendant.
OPINION AND ORDER ON MOTIONS TO EXCLUDE EXPERTS
CHARLES B. KORNMANN, District Judge.
Plaintiffs instituted this diversity action seeking damages arising out of a fire in their Redfield, South Dakota, home which plaintiffs claim was caused by a Wallflower plug-in fragrance diffuser which they purchased from Bath and Body Works. Plaintiffs claim defendants are liable for negligence, failure to warn, strict liability, and breach of warranties. Defendants filed a third party complaint against the manufacturer, Aeron Lifestyle Technology, seeking contribution and indemnity.
Plaintiffs have filed a motion to exclude two of defendants' designated experts pursuant to Fed.R.Evid. 702 and Daubert v. Merrell Dow Phann., Inc. , 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993). The third party defendant filed a motion to exclude one of plaintiffs' experts on the same basis.
The fire at issue occurred on August 30, 2008. A number of investigations and reports soon followed. The Redfield Fire Department issued a report. The fire was also investigated by Larry Creighton ofAdvanced Investigative Services ("AIS") and he issued a report. Dennis Smith from Kodiak Fire & Safety Consulting of Ft. Wayne, Indiana, was retained to examine the fire scene and issued a report. Cowan Engineering and Consulting took photographs of the fire scene and issued a report. Nathan Taarud, an American Family Insurance adjuster also took pictures of the fire scene. A number of items were recovered from the fire scene by the several investigators, including a duplex receptacle (an electrical outlet), the remains of a Wallflower fragrance diffuser from the area of origin of the fire, and a Wallflower fragrance diffuser that was purchased at the same time and used in another room.
The artifacts collected from the fire scene were sent to Anderson Engineering ofNew Prague, Inc. in July 2012. A joint examination by Beth Anderson, plaintiffs' forensic electrical engineering expert, and Larry Hanke of Materials Evaluation and Engineering, Inc. ("MEE") was conducted in October 2012.
Anderson opines that the Wallflower unit had defective insulation on the inside wiring, allowing electrical arcing and a resulting fire. She concludes this based upon her observation of the unit. She claims the unit shows the presence of "demarcation, " a sharp line between melted and unmelted copper wires. She claims the scientific community considers demarcation a sign of internal arcing, as opposed to damage caused by heat resulting from fire external to the unit. She bases her opinion, in part, upon the NFPA 921 Guide for Fire and Explosion Investigations.
Scientific Expert Analysis ("S.E.A.") of Columbus, Ohio, was retained by defendants to review the results ofevidence examinations and review and analyze the various reports. The investigation was assigned to Robert Carbonara, a materials scientist. He reviewed the reports from Anderson Engineering, MEE, and AIS. He examined exemplar Wallflower units and outlets but did not examine the actual unit and outlet from the fire.
Daniel Churchward, a forensic fire investigator and owner of Kodiak, was retained by defendants. He conducted an examination of artifacts removed from the fire scene and held at Anderson Engineering's laboratory in Minnesota. Churchward and James Small conducted research and testing on exemplar Aeron air fresheners at the SEA laboratory in Columbus, Ohio, and at Kodiak's laboratory. Churchward reviewed reports from an on-site investigation conducted by his employee, Dennis Smith, as well as reports by Larry Creighton from AIS, Larry Hanke from MEE, and from Anderson Engineering.
Carbonara opines that there was no arcing in the Wallflower unit which allegedly caused the fire. He contends that Anderson's conclusion that demarcation is present and is evidence of arcing is based upon old science and is no longer accepted in the scientific community. Both Carbonara and Churchward opine that there must have been external damage to the unit's plug or the outlet caused by moving furniture or some other significant external force and that applied force was the cause ofthe fire. They base this opinion, in part, upon wall damage present near the outlet. Any melting ofthe wires internally to the Wallflower unit, they contend, was the result ofan external fire.
Plaintiffs contend that Carbonara's opinions are unreliable because he does not accept that a sharp line ofdemarcation is proofofan electrical arcing event which, plaintiffs contend, renders his scientific methodology unreliable because it has no basis in scientific fact. Plaintiffs contend that neither ofdefendants' experts conducted any testing on the unit in question, and contend that such experts base their opinions as to the cause ofthe fire on speculation that the unit was damaged. Defendants counter that Anderson's opinion is unreliable because it is based upon an NFPA guideline which will soon be revised.
Pursuant to Fed.R.Evid. 702,
A witness who is qualified as an expert by knowledge, skill, experience, training, or education may testifY in the ...