Atlantic Specialty Insurance Company et al v. Porter, Inc., No. 2:2015cv00570 - Document 74 (E.D. La. 2016)
Court Description: ORDER & REASONS denying 26 Motion in Limine as set forth in document. Signed by Judge Sarah S. Vance on 10/20/2016. (mmm)
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Atlantic Specialty Insurance Company et al v. Porter, Inc. Doc. 74 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF LOUISIANA ATLANTIC SPECIALTY INSURANCE COMPANY AND NICHOLAS CHAD GONZALEZ VERSUS CIVIL ACTION NO. 15-570 PORTER, INC., D/ B/ A FORMULA BOATS SECTION “R” (4) ORD ER AN D REASON S Before the Court is Defendant Porter, Inc.’s m otion in lim ine and Daubert m otion to strike the report of Plaintiffs’ expert witness, Gary J ones, and to prohibit J ones from testifying at trial. 1 For the following reasons, the Court DENIES defendant’s m otion. I. BACKGROU N D This lawsuit arises out of a fire onboard the Budget Bender, a recreational boat owned by plaintiff Nicholas Chad Gonzalez, that occurred on or about December 21, 20 13 and rendered the boat a total loss. The boat was insured by Atlantic Specialty Insurance Com pany, which paid Gonzalez 1 R. Doc. 26. Dockets.Justia.com $ 280 ,0 0 0 on his insurance claim . Plaintiffs assert claim s against the boat’s m anufacturer, Porter, Inc., for redhibition, breach of contract, products liability, and negligence. 2 Plaintiffs allege that the fire was caused by an electrical m alfunction attributable to corroded wiring in the port side of the boat. 3 According to plaintiffs, a gap along the edge of a wet bar in the boat’s cockpit allowed water to flow downward and onto the wiring below, causing the corrosion. 4 Plaintiffs allege that this corrosion caused a short circuit that energized wires, causing them to overheat and eventually ignite a fire. 5 To support this theory, plaintiffs retained three experts: Captain Guy Plaisance, a m arine surveyor; Gary J ones, a fire causation consultant; and Troy Little, an electrical engineer. 6 J ones was assigned to conduct an origin and cause investigation of the fire. 7 His first investigation of the boat occurred on J anuary 3, 20 14 and continued on J anuary 9. 8 J ones wrote a report on his initial investigation on 2 R. Doc. 1-2 at 3-4. Id. at 2. 4 Id. 5 Id. 6 Defendant has also m oved the Court to strike the reports of Little and Plaisance, to prohibit them from testifying, and to strike the “hose-test” video dem onstrations prepared by Plaisance. See R. Doc. 27 (Little); R. Doc. 29 (Plaisance). The Court will address those m otions separately. 7 R. Doc. 26-2 at 2. 8 Id. 2 3 J anuary 31, 20 14. 9 J ones returned to the boat and conducted a joint scene investigation with representatives from both plaintiffs and defendant on March 12, 20 14. 10 J ones wrote a report on this investigation on March 17, 20 14. 11 Another joint investigation was held on J uly 17, 20 14, and J ones wrote his final report on his investigations on August 11, 20 14, noting at the end of the report that the file was now closed. 12 J ones’ first report begins with prelim inary information like the location of the boat when the fire occurred, and how the boat receives electricity when it is m oored. 13 The report does note that the 125 volt power receptacle on the side of the boat showed “no obvious signs of fire involvem ent.”14 J ones concludes that the fire originated in the starboard side of the sectional sofa in the aft cabin, but the ignition source of the fire was not determ ined. 15 According to the report, potential ignition sources could be the fixed AC/ DC wiring and Molex electrical connectors. 16 J ones also notes that he considered “all possible fire cause theories,” and excluded 9 10 11 12 13 14 15 16 R. Doc. 26-3 at 2. Id. Id. R. Doc. 26-4 at 3. R. Doc. 26-2 at 3. Id. Id. at 4. Id. 3 “intentional hum an involvem ent” as a possible cause. 17 Finally, J ones rules out a portable electric heater as a cause of the fire. 18 J ones’ second report shifted the focus away from the Molex connectors because rem oval of additional debris and the board that held the connectors revealed that the fire actually originated in the lower void space behind the sofa frame that housed the hull wiring harnesses. 19 Representatives of both sides agreed as to the origin of the fire. 20 The report further noted that “localized adverse electrical activity was documented at the factory wiring harness to the blowers, speakers, and galvanic isolator.”21 It concludes by stating that plaintiffs’ expert Troy Little will be researching the causation link between “the fire in the aft cabin and the overheated connector in the engine com partment wiring harness,” and that J ones’ portion of the investigation is com pleted. 22 Porter now m oves the Court to exclude J ones’ reports and to prohibit J ones from testifying. Porter gives three arguments for exclusion: (1) that 17 Id. at 5. Id. at 5-6. 19 R. Doc. 26-3 at 2. 20 Id. 21 Id. 22 Id. at 3. J ones’ third report solely reiterates conclusions stated in his previous reports and does not offer any new inform ation. See R. Doc. 26-4. 4 18 plaintiffs failed to subm it an expert report on behalf of J ones; (2) that the docum ents that plaintiffs did submit do not to satisfy the technical requirements of Federal Rule of Civil Procedure 26 and this Court’s scheduling order; and (3) that J ones does not base his proffered expert testim ony on reliable data and sound m ethodologies, as required by Federal Rule of Evidence 70 2 and Daubert v. Merrell Dow Pharm aceuticals, Inc., 50 9 U.S. 579 (1993). Plaintiffs initially responded to defendant’s Rule 26 arguments 23 but not its Daubert argument. The Court ordered plaintiffs to address the Daubert issues. 24 Plaintiffs did so, and defendant replied. 25 II. LEGAL STAN D ARD When expert testim ony offered by one party is subject to a Daubert challenge, the Court m ust act as a “gatekeeper” under Federal Rule of Evidence 70 2. A district court has considerable discretion to adm it or exclude expert testim ony under Rule 70 2. See Gen. Elec. Co. v. Joiner, 522 U.S. 136, 13839 (1997); Seatrax, Inc. v. Sonbeck Int’l, Inc., 20 0 F.3d 358, 371 (5th Cir. 23 24 25 R. Doc. 35. R. Doc. 50 . R. Doc. 66. 5 20 0 0 ). Rule 70 2, which governs the adm issibility of expert witness testim ony, provides: A witness who is qualified as an expert by knowledge, skill, experience, training, or education m ay 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 testim ony is based on sufficient facts or data; (c) the testim ony is the product of reliable principles and m ethods; and (d) the expert has reliably applied the principles and m ethods to the facts of the case. Fed. R. Evid. 70 2. In Daubert v. Merrell Dow Pharm aceuticals, Inc., the Supreme Court held that Rule 70 2 requires the district court to act as a gatekeeper to ensure that “any and all scientific testim ony or evidence adm itted is not only relevant, but reliable.” 50 9 U.S. at 589; see also Kum ho Tire Co., Ltd. v. Carm ichael, 526 U.S. 137, 147 (1999) (clarifying that the Daubert gatekeeping function applies to all form s of expert testimony). The Court’s gatekeeping function thus involves a two-part inquiry into reliability and relevance. First, the Court m ust determ ine whether the proffered expert testim ony is reliable. The party offering the testim ony bears the burden of establishing its reliability by a preponderance of the evidence. See Moore v. Ashland Chem . Inc., 151 F.3d 269, 276 (5th Cir. 1998). The reliability inquiry 6 requires the Court to assess whether the reasoning or m ethodology underlying the expert’s testim ony is valid. See Daubert, 50 9 U.S. at 592-93. The aim is to exclude expert testim ony based merely on subjective belief or unsupported speculation. See id. at 590 . The Court in Daubert articulated a flexible, non-exhaustive, five-factor test to assess the reliability of an expert’s m ethodology: (1) whether the expert’s theory can be or has been tested; (2) whether the theory has been subject to peer review and publication; (3) the known or potential rate of error of a technique or theory when applied; (4) the existence and m aintenance of standards and controls; and (5) the degree to which the technique or theory has been generally accepted in the scientific com m unity. Id. at 593-95. The Supreme Court has emphasized, however, that these factors “do not constitute a ‘definitive checklist or test.’” Kum ho, 526 U.S. at 150 (quoting Daubert, 50 9 U.S. at 593). Rather, district courts “m ust have considerable leeway in deciding in a particular case how to go about determ ining whether particular expert testim ony is reliable.” Id. at 152. Courts have also considered whether experts are “proposing to testify about m atters growing naturally and directly out of research they have conducted independent of the litigation, or whether they have developed their opinions expressly for purposes of testifying,” Daubert v. Merrell Dow Pharm s., Inc., 7 43 F.3d 1311, 1317 (9th Cir. 1995), whether the expert has adequately accounted for obvious alternative explanations, see Claar v. Burlington N .R.R., 29 F.3d 499 (9th Cir. 1994), and whether the expert “is being as careful as he would be in his regular professional work outside his paid litigation consulting,” Sheehan v. Daily Racing Form , Inc., 10 4 F.3d 940 , 942 (7th Cir. 1997). The Court also considers this m otion recognizing that this case involves a nonjury trial. In Daubert, the Suprem e Court's overriding concern was with the problem of exposing the jury to confusing and unreliable expert testim ony. See 50 9 U.S. at 595-97. In the wake of Daubert, several courts have recognized that in the context of a bench trial, as is the case here, “the Daubert gatekeeping obligation is less pressing,” because the gatekeeper and trier of fact are the same. Volk v. United States, 57 F.Supp.2d 888, 896 n.5 (N.D. Cal. 1999); see also Seaboard Lum ber Co. v. United States, 30 8 F.3d 1283, 130 1-0 2 (Fed. Cir. 20 0 2) (explaining that in the context of a bench trial the Daubert standard m ust still be applied but the concerns about expert evidence m isleading a jury “are of lesser im port”); Gibbs v. Gibbs, 210 F.3d 491, 50 0 (5th Cir. 20 0 0 ) (“Most of the safeguards provided for in Daubert are not as essential in a case such as this where a district judge sits as the trier of fact in place of a jury.”). Nevertheless, Daubert still applies in bench 8 trials, and this Court m ust still ensure that the proffered testim ony is reliable. See id. Expert testim ony “m ust be reliable at each and every step or else it is inadm issible. The reliability analysis applies to all aspects of an expert’s testim ony: the methodology, the facts underlying the expert’s opinion, the link between the facts and the conclusion, et alia.” Knight v. Kirby Inland Marine Inc., 482 F.3d 347, 355 (5th Cir. 20 0 7) (citation om itted). “Where the expert’s opinion is based on insufficient inform ation, the analysis is unreliable.” Paz v. Brush Engineered Materials, Inc., 555 F.3d 383, 388 (5th Cir. 20 0 9). In Joiner, the Supreme Court explained that “nothing in either Daubert or the Federal Rules of Evidence requires a district court to adm it opinion evidence that is connected to existing data only by the ipse dixit of the expert.” 522 U.S. at 146. Rather, “[a] court m ay conclude that there is sim ply too great an analytical gap between the data and the opinion proffered.” Id.; see also LeBlanc v. Chevron USA, Inc., 396 F. App’x 94, 98 (5th Cir. 20 10 ). If the Court is satisfied that the expert’s testim ony is reliable, the Court m ust then determ ine whether the expert’s analysis is relevant. The question here is whether the reasoning or methodology “fits” the facts of the case and 9 will thereby assist the trier of fact to understand the evidence. See Daubert, 50 9 U.S. at 591. “[F]undam entally unsupported” opinions “offer[] no expert assistance to the [trier of fact]” and should be excluded. Guile v. United States, 422 F.3d 221, 227 (5th Cir. 20 0 5) (citing Viterbo, 826 F.2d at 422). III. D ISCU SSION A. Mo tio n to Strike Before reaching the m erits of defendant’s Daubert m otion, the Court will address defendant’s argument that J ones’ expert reports should be stricken because they do not com ply with Federal Rule of Civil Procedure 26, and this Court’s scheduling order, which requires that expert reports fully set forth “all m atters about which [the expert witness] will testify and the basis therefor” and “be obtained and delivered to counsel for Defendant as soon as possible, but in no event later than April 15, 20 16.”26 Rule 26(a)(2)(B) provides that, “unless otherwise stipulated or ordered by the court,” a party m ust disclose its expert witnesses along with a written report prepared and signed by the witness that contains: (i) a com plete statem ent of all opinions the witness will express and the basis and reasons for them; (ii) the facts or data considered by the witness in form ing them ; (iii) any exhibits that will be used to sum m arize or support them ; (iv) the witness's 26 R. Doc. 18. 10 qualifications, including a list of all publications authored in the previous 10 years; (v) a list of all other cases in which, during the previous 4 years, the witness testified as an expert at trial or by deposition; and (vi) a statement of the com pensation to be paid for the study and testim ony in the case. Fed. R. Civ. P. 26(a)(2)(B). Because J ones’ reports do not include m any of these requirem ents, defendant argues the reports m ust be stricken. Defendant’s argument that plaintiff has violated Rule 26(a)(2)(B) fails to recognize that the Court has “otherwise stipulated or ordered” that an expert report m ust m erely set forth “all m atters about which they will testify and the basis therefor” and be delivered to defendant by April 15, 20 16. 27 See Knorr v. Dillard’s Store Services, Inc., No. 0 4-320 8, 20 0 5 WL 20 60 90 5, at *2 (E.D. La. Aug, 22, 20 0 5) (rejecting sim ilar argument of technical noncom pliance with Rule 26 because of Court’s scheduling order). J ones’ first and second reports sufficiently establish that he will be testifying as to the origin of the fire and the elim ination of certain alternate causes of the fire. 28 Additionally, J ones’ reports m ake clear that his conclusions are based on “a total analysis of the inform ation collected during the investigation,”29 which includes witness statem ents, physical evidence, exam inations of char and burn patterns, analysis of heat intensity patterns, and other dam age 27 28 29 R. Doc. 18 at 2. See generally R. Doc. 26-2; R. Doc. 26-3. R. Doc. 26-3 at 3. 11 pattern analysis. 30 Any confusion or questions that defendant had over the basis for J ones’ conclusions could be addressed in a deposition or through other discovery means. See Kirkland v. Marriott International Inc., 416 F. Supp. 2d 480 , 486 n. 2 (E.D. La. 20 0 6) (refusing to strike report with inform ation that was difficult to understand because inform ation was clarified in subsequent deposition); Stahl v. N ovartis Pharm aceuticals Corp., No. 99-10 48, 20 0 0 WL 33915847, at *2 (E.D. La. Nov. 29, 20 0 0 ) (same). Finally, defendant received J ones’ reports in August 20 15, well before the April 20 16 deadline. 31 Therefore, J ones’ reports are tim ely and adequately set forth the m atters about which he will testify and the basis for his opinions. Furtherm ore, although J ones’ reports did not include inform ation like his resume, his qualifications, his com pensation, or a list of other cases in which he has testified as an expert, plaintiffs separately gave defendant docum entation of J ones’ compensation and his resum e, which included his qualifications and a list of cases in which J ones has testified as an expert either at trial or by deposition. 32 Defendant had all of this inform ation before 30 31 32 R. Doc. 26-2 at 2-5. R. Doc. 27-1 at 2. R. Doc. 35-11. 12 J ones’ deposition and was not prejudiced by the absence of this inform ation from J ones’ reports. For the foregoing reasons, plaintiffs’ technical noncom pliance with Rule 26 does not warrant this Court’s striking J ones’ reports. See Knorr, 20 0 5 WL 20 60 90 5 at *2. B. Da ub ert In addition to its Rule 26 argum ent, defendant argues that J ones’ reports do not comply with the standards of Federal Rule of Evidence 70 2 and Daubert. In support, defendant m aintains that J ones should be excluded from testifying because he offers an opinion only as to the origin— rather than the cause—of the fire, and he m ade “no m eaningful attem pt to rule out other possible sources of the fire.”33 Defendant argues that these failures are evidence that J ones did not follow the Scientific Method and National Fire Protection Association publication 921, Guide for Fire and Explosion Investigations. 34 The Court is not persuaded by defendant’s arguments. 33 R. Doc. 26-1 at 16. Id. Unlike its other Daubert m otions in this case, defendant does not point to any specific action taken by J ones that does not com ply with N FPA 921. J ones first report states that he conducted his investigation consistent with the guidelines of N FPA 921, R. Doc. 26-2 at 2, and the steps detailed by his report are consistent with fire origin determination according to N FPA 921. See N FPA 921 at 187. 13 34 Defendant’s only argum ent against the adm ission of J ones’ opinion on the origin of the fire is that it is unnecessary, since defendant agrees with J ones on the origin of the fire. The Court finds that J ones’ opinion on the origin of the fire will assist the Court in understanding what happened in this case, and it will not exclude this opinion. The Court likewise rejects defendant’s argument that J ones’ other testim ony should be excluded because he m ade no m eaningful effort to exclude other causes. First, J ones excluded intentional hum an involvement as a cause of the fire, after reasonably considering the location of the origin area, the secured state of the cabin, and the seating arrangement within the cabin. 35 Next, J ones addressed the possibility that a portable electric heater was the cause of the fire. At the tim e of the fire, Gonzalez had left a portable heater turned on in the cockpit. 36 J ones noted that the heater was not located in the area of the fire’s origin, that it was field tested (by plugging it in to see if it still worked), and that it continued to operate norm ally. 37 Based on these two facts, J ones excluded the heater as a cause of the fire. Defendant nevertheless argues that J ones did not adequately elim inate the heater as a 35 36 37 R. Doc. 26-2 at 5 Id. Id. 14 possible cause because the heater was plugged into an electrical circuit that was routed through the origin area. 38 J ones’ exclusion of the heater as a cause is reasonably based on reliable principles. Portable space heaters are a frequent cause of fires, see David L. Faigm an, et al., 5 Modern Scientific Evidence § 37:51 (20 15-20 16 ed.). Thus any proper exam ination of the fire on the Budget Bender would have to address the possibility that the heater was the cause. But N FPA 921 notes that appliances that are not located in the area of origin can generally be excluded. N FPA 921 at 257. This m akes sense since appliances can start fires by heating nearby com bustible m aterial until a fire starts. As the heater was not in the area of origin, J ones reasonably excluded the possibility that the heater caused the fire. Additionally, that the heater was field tested after the fire and functioned norm ally suggests that there was no abnorm al electrical activity in heater’s wiring. Defendant’s argument to the contrary can be addressed adequately through cross-exam ination. Cole’s Tool W orks v. Am . Pow er Conversion Corp., No. 0 6-169, 20 0 9 WL 1298236, at *3 (N.D. Miss. May 7, 20 0 9) (“Any deficiencies in [the expert]’s m ethodology regarding the exclusion of other possible causes of the fire m ay be adequately addressed by m eans of cross-exam ination and im peachm ent.”). 38 R. Doc. 27-1 at 17. 15 Further, defendant erroneously equates failing to exclude every possible alternative cause with failing to exclude any other possible causes. Clearly, J ones did exclude m ore than one potential cause, ruling out intentional hum an activity and the portable space heater. He did not purport to isolate the sole cause of the fire. J ones’ exclusion only of certain potential causes, without offering an opinion on the actual cause of the fire, does not render his testim ony inadm issible, since the lim ited opinions he offers have a sufficiently reliable basis. See Cole’s Tool W orks, 20 0 9 WL 1298236, at *3. IV. CON CLU SION For the foregoing reasons, the Court is satisfied that the proffered testim ony of Gary J ones is both reliable and relevant. Accordingly, the Court DENIES the m otion to exclude the reports and expert testim ony of Gary J ones. 20th New Orleans, Louisiana, this _ _ _ _ _ day of October, 20 16. _____________________ SARAH S. VANCE UNITED STATES DISTRICT J UDGE 16
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