Opinion
Case No. 02-1436-JTM
March 2, 2004
MEMORANDUM AND ORDER
On June 13, 2001, plaintiff Freddy George and his wife decided to use a Ronco. food dehydrator. This was the first time they had used the device since they bought it in late 1998 from QVC. At 8:30 in the morning, they set the unit on its high setting, and left the house a half hour later. When they returned after a couple of hours, they found the kitchen was on fire. This matter is before the court on three motions by defendants Ronco. Inventions, LLC, Ronco. RD, Inc., and Ronco. Inc.: a Daubert Motion to Exclude Plaintiffs Experts (Dkt. No. 49), a Motion for Summary Judgment (Dkt. No. 53), and a Motion in Limine (Dkt. No. 51).
Daubert Motion
Ronco's Motion to Exclude, premised on the standards set forth in Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993), seeks the exclusion of testimony from George's experts, John C. Branch (a mechanical engineer), James L. Martin (a professional engineer with a degree in electrical engineering), and Charles T. Jacobs (a fire investigator). Branch and Martin have tested three Ronco. Ten Tray Electric Food Dehydrators. Jacobs investigated the scene of the fire.
Jacobs is a fire investigator who runs Consolidated Forensic Investigations, Inc. Other than a community college class, he does not have any formal college or university education in fire investigation. However, Jacobs has extensive professional and vocational training in fire investigation, and has been recognized as a Certified Fire Investigator. Beginning in 1970, Jacobs worked for the Independence, Missouri Fire Department for some 14 years. In 1973, he transferred to the Fire Prevention Division and held the title as inspector, where his duties included enforcing the Uniform Fire Code, and he also was involved in determining the cause and origin of fires. He has completed a number of fire investigation courses. He has attended the International Association of Arson Investigator Fire and Arson Seminar on twelve different occasions beginning in 1995 and as recently as the Reno, Nevada Seminar in 2003. He has also taught numerous fire-related courses and seminars. According to Jacobs, "99%" of what he does involves fires and explosions. (Plf. Exh. B, Jacobs's Dep. at 4-5). Jacobs was asked to investigate the scene, and to focus on the possibility that the dehydrator caused the fire.
Jackson County Bomb and Arson Squad Investigation Course (1975); Penn Valley Community College Advanced Fire and Arson Investigation Course (1975); International Association of Arson Investigators, Fire and Arson Investigation Course, Indianapolis, Indiana (1976); International Association of Arson Investigators and University of Michigan Expansion Service; Lansing, Michigan, Fire and Arson Investigation Course (1977); International Association of Arson Investigators at Santa Ana College; Anaheim, California, Advanced Arson Investigation Course (1978); Denver, Colorado Arson Unit Week Course to observe operation of Arson Unit (1978); "Marshall 5" Seattle, Washington Arson Unit [one week course] (1979); National Association of Mutual Insurance Companies Arson Seminar (1979); National Fire Academy Arson Investigation Course [80 hours] (1979); International Association of Arson Investigators, Florida Chapter, Fire Investigation Techniques Conference; Tampa, Florida (1980); Harry S. Truman Police Academy, Independence, Missouri Arson Photography Course (1980); International Association of Arson Investigators at Rutgers University, Cherry Hill, New Jersey Fire and Investigation Course (1981); Arson Awareness Seminar, Wichita, Kansas, (1981); Fire and Arson Investigation Course, Wichita, Kansas (1984); 10th Annual Kansas State Fire and Arson Investigation Course, Topeka, Kansas; (1985); Chemical Analysis Seminar, Armstrong Forensics Laboratory, Arlington, Texas (1989); International Association of Arson Investigators National Seminar, Fire and Arson Investigations, Auckland, New Zealand (1993); and 5th Annual Arson National Investigation Training Seminar, Insurance Committee for Arson Control, kansas City, Missouri.
Jacobs first conducted a preliminary investigation at the scene for about 30 minutes, and determined that the fire started in the general area of the kitchen island. The fire did not start on the second floor. He also determined the fire did not start in the basement: he did not walk through the basement but stood at the bottom of the basement stairs and used a flashlight. Jacobs examined the charring patterns on the wood, but did not take any objective measurements of the char depth or angle.
Jacobs testified that in his preliminary investigation, he was "trying to evaluate the burn patterns, [and] get a feel for where the fire started." (Plf. Exh. B, Jacobs Dep. at 52). He mainly sought to "find the area of lowest heavy damage. That is usually your point of origin. And you should have a relatively heavy damage directly above that area too."(Id. at 53). Jacobs is aware that NFPA Guidelines state that analysis of depth of charring provides the most reliable method of evaluating fire spread, but stated that the guidelines provided only a general recommendation, which was not required in all cases. Jacobs testified that actual measurements or the completion of a vector diagram were unnecessary in this instance, because the nature of the charring was obvious. (Id. at 95).
Jacobs believes the fire was caused by the dehydrator. Jacobs's report extends over several pages and contains numerous photographs. The ceiling above the island bar sustained the heaviest high damage. The vertical legs of the bar were mostly damaged at the south end. Kitchen cabinets at the east end of the north wall sustained the greatest damage. A well-defined V-pattern was observed indicating flame progression from the bar to the west. A portion of the particle bar top was consumed at the south end. The north end was charred but remained intact.
In the center of the bar, along the west side, was a circular area of melted plastic where the dehydrator had been. A protected area was beneath the melted plastic, which had a diameter of 11 inches. Jacobs's report does not explicitly note any burn patterns coming through the hole in the island counter, but he has testified that the fire had to start on top of the island "because there is nothing [underneath] to cause a fire." (Id. at 138).
Martin is an electrical engineer, whose business specializes in electrical consulting engineering. He is a graduate of Wichita State University with a Bachelor of Science in Electrical Engineering in 1968. He has also taken two 3-semester-hour courses in fire science. Branch has a Bachelor of Science and Master's degree in Mechanical Engineering from the University of Nebraska.
Martin and Branch began their testing using Jacobs's assumption that the dehydrator caused the fire, seeking to find if they could cause the dehydrator to burn if air inflow was impeded. The testing was designed to see if the dehydrator could cause the fire, not if it actually did cause it. Martin "reasoned, since the fire incident occurred the very first time the George's food dehydrator was used, it is probable the air distribution fan failed or perhaps was never actually operational on that particular food dehydration unit." (Def. Exh. B, at 3). Ultimately Martin and Branch were able to ignite their test units if they blocked the fan from operating, and disabled the unit's temperature control device.
Under Dauhert and its progeny, the court must determine if the proposed expert testimony would provide scientific, technical or other specialized knowledge which would assist the trier of fact's understanding of an issue. 509 U.S. at 592. See Kumho Tire Co. v. Carmichael, 526 U.S. 137, 148 (1999). The determination of reliability is a flexible one. The court must find the opinion is based on a reliable foundation in terms of its reasoning and methodology. Kumho, 526 U.S. at 141. The court must also determine if the testimony is relevant. Id.
The court finds no basis for the exclusion of Jacobs's testimony. Ronco's arguments against Jacobs (the dehydrator was specifically mentioned as a potential cause of the fire when he was hired, his supposed lack of education, that he did not spend enough time at the scene, his failure to take objective measurements of charring at the scene) do not provide a basis for exclusion of the testimony. He has performed many investigations over a long career. Jacobs spent over four hours in total at the scene. Although he lacks college or university training, he has extensive professional and vocational training in the subject area. Jacobs's report contains a lengthy narrative and numerous photographs which provide a credible basis for his testimony that the pattern of charring was so obvious that specific measurements were not necessary. There is no evidence that Jacobs has applied an unusual approach in his investigation; his investigation appears to follow standard fire investigation practices. Jacobs narrowed the scope of the potential sources of the fire, specifically excluding the area under the island. A review of Jacobs's report reveals no significant gaps in deductions, nor any basis for viewing his conclusions as so unreliable or irrelevant as to justify exclusion.
Nor does the court find any basis for the exclusion of the testimony of Martin and Branch. Ronco. in its brief reverses the order (first Martin and Branch, then Jacobs) in which the experts are addressed in the present order, as well as the actual chronological order in which they rendered their opinions. This has the result of suggesting that opinions of the engineers is mere grasping in the dark for an explanation of the fire — an attempt to identify a potential cause of the fire, not the actual cause. Such a suggestion would have merit if Jacobs's testimony was not before the court. But, in conjunction with that testimony, the testimony of Martin and Branch is admissible. Jacobs testified that the point of origin of the fire was the dehydrator. Martin and Branch can provide evidence that the dehydrator under some circumstances can cause a fire.
Martin is a professional engineer with a degree in electrical engineering from Wichita State University. He holds a Bachelor of Science Degree in Electrical Engineering and has continually practiced as a licensed professional engineer since August of 1968. In 1977, he formed Martin Engineering, which specializes in consulting engineering and forensics engineering. On behalf of Martin Engineering, Martin has provided electrical engineering consulting to a wide variety of electrical construction projects and has completed more than 650 forensics engineering assignments. Ofthose 650 assignments, about 400 of them involved fires. Of the residential fires, 7 involved dishwashers and 5 of the 7 were Whirlpool Dishwashers.
Branch has a Bachelor of Science in Mechanical Engineering and a Masters in Mechanical Engineering from the University of Nebraska. He is also doing postgraduate work in mechanical engineering at Wichita State University, and has completed the International Association of Arson Investigators 2002 Fire and Arson Investigation Course. He is a registered professional engineer in Nebraska, Kansas, Oklahoma and Iowa. He formerly was a certified Fire Fighter. He also has an extensive employment background as an engineer, which includes teaching Thermodynamic Engineering to undergraduate students at Wichita State University.
The testimony of Martin and Branch is admissible and relevant; it provides a likely cause for the fire which began where the dehydrator was sitting. The tests of Martin and Branch were undertaken using standard engineering procedures, carefully documented and open for review and analysis by other persons. Defendants' arguments with respect to Martin and Branch, as well as those with respect to Jacobs, provide a proper fodder for cross-examination, but they form no basis for exclusion of the testimony under Daubert.
As noted earlier, Ronco. has also moved for summary judgment on George's claims. A portion of this motion is dependent on success in the Daubert motion: without expert evidence, Ronco. argues, George's claims must be dismissed. Because the court has denied the Daubert motion, this portion of the summary judgment motion is also denied.
Ronco. also seeks dismissal in the summary judgment motion of George's claim for breach of implied warranty, arguing that the claim violates the four-year statute of limitations provided by KSA 84-2-725. Plaintiff defends the motion on the grounds that while he did, indeed, buy the dehydrator from QVC on December 10, 1996, there is no evidence as to when the dehydrator was delivered. Ronco. has obtained evidence from QVC, however, that the product was shipped to the Georges on December 13, 1996. Testimony from QVC personnel indicates that shipments from its warehouses arrive within a few weeks at most. The complaint in the present action was brought on December 9, 2002, almost six years after the purchase of the product, and well outside the four-year statute of limitations.
Ronco's Motion in Limine seeks a determination that plaintiff's damages must be measured by the reduction in fair market value, rather than determined as replacement cost. George concedes the issue with respect to damaged or destroyed personal property, but contends that damages with respect to the house can be assessed by determining replacement cost, citing Horsch v. Terminix Internat'l Co., 19 Kan. App. 2d 134, 137, 865 P.2d 1044 (1994). The court grants Ronco's motion. The general rule in Kansas is that damages to real property are to be determined by the difference to the market value of the property before and after the injury. Williams v. Amoco. Prod'n Co., 241 Kan. 102, 734 P.2d 113 (1987). Horsch recognized that there is "no one set rule" for damages to real property, 19 Kan. App. 2d at 138, and affirmed an award which included consideration of damages beyond reduction in value, but the case itself is atypical: plaintiffs in that case were suing in part for the effects resulting from "the stigma of termite damage." Id. at 137. Given the more traditional nature of the present action, the court finds that plaintiff's damages must be expressed in the traditional terms of loss of, or reduction in, the property's fair market value.
IT IS ACCORDINGLY ORDERED this 2d day of March, 2004, that the defendants' Motion to Exclude (Dkt. No. 49) is denied; Motion for Summary Judgment (Dkt. No. 53) is granted as to plaintiff's implied warranty claim and otherwise denied; and Motion in Limine (Dkt. No. 51) is granted.