Atlantic Specialty Insurance Company et al v. Porter, Inc., No. 2:2015cv00570 - Document 75 (E.D. La. 2016)
Court Description: ORDER & REASONS granting 27 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. 75 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, Troy Little, and to prohibit Little from testifying at trial. 1 For the following reasons, the Court GRANTS 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. 27. 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 Little investigated the Budget Bender on J anuary 31, 20 14, March 12, 20 14, and J uly 17, 20 14, and subm itted a report of his findings on August 5, 20 14. 7 Little’s report noted that he had confirm ed Gary J ones’ analysis of the fire’s origin, and the report recited Little’s evaluation of the electrical 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 J ones and Plaisance, to prohibit them from testifying, and to strike the “hose-test” video dem onstrations prepared by Plaisance. See R. Doc. 26 (J ones); R. Doc. 29 (Plaisance). The Court will address those m otions separately. 7 R. Doc. 27-2 at 1-2. 2 3 wiring behind the sofa where the fire originated. 8 Little’s report stated that while perform ing a visual inspection, he observed a corroded pigtail connection that “exhibited signs of electrical dam age consistent with that of water intrusion.”9 Though Little was unable to determ ine the relationship between the pigtail connector and the wiring harnesses routed through the fire origin area, Little’s report theorized that the circuits in the deteriorated pigtail connector short circuited, which energized the circuits and bypassed the protective circuit breakers, causing current to travel through the wiring harness and overheat “butt-splice” connectors, starting the fire. 10 Little concluded that water ingress into the pigtail connection caused its corrosion and deterioration. 11 However, Little’s report did not identify which specific connector failed, nor did it describe or explain the steps Little took to confirm his “conclusion.”12 Porter now m oves the Court to exclude Little’s report and to prohibit Little from testifying. Porter gives three arguments for exclusion: (1) that plaintiffs failed to subm it an expert report on behalf of Little; (2) that the docum ent plaintiffs did subm it failed to satisfy the technical requirem ents of 8 9 10 11 12 Id. at 2. Id. Id. at 2-3. Id. at 4. Id. 3 Federal Rule of Civil Procedure 26 and this Court’s scheduling order; and (3) that Little 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 argum ents 13 but not its Daubert argument. The Court ordered plaintiffs to address the Daubert issues. 14 Plaintiffs filed their response, 15 and defendant replied. 16 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. 20 0 0 ). Rule 70 2, which governs the adm issibility of expert witness testim ony, provides: 13 14 15 16 R. Doc. 36. R. Doc. 50 . R. Doc. 57. R. Doc. 60 . 4 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 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. 5 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., 43 F.3d 1311, 1317 (9th Cir. 1995), whether the expert has adequately accounted for obvious alternative explanations, see Claar v. Burlington 6 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 trials, and this Court m ust still ensure that the proffered testim ony is reliable. See id. 7 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 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 8 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 argum ent that Little’s expert report 17 should be stricken because it does 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.”18 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: 17 Defendant adam antly m aintains that the Little report should not even be considered a “report,” and refers to the docum ent throughout its m otion as the “Little Letter.” See generally R. Doc. 27-1. However, Little writes in the first paragraph of the docum ent, “[p]lease accept the following as a report of my findings. R. Doc. 27-2 at 1 (em phasis added). Though what to call the docum ent m ay just be sem antics, the Court will treat Little’s docum ent as an expert report. 18 R. Doc. 18. 9 (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 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 Little’s report does not include m any of these requirem ents, defendant argues the report 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. 19 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). Though Little’s report certainly could have been m ore detailed (which he him self adm itted in his deposition), it sufficiently establishes that he will be testifying as to his hypothesis that water ingress into the electrical system caused a short circuit which ultim ately led to the fire. 20 Additionally, the 19 20 R. Doc. 18 at 2. R. Doc. 27-2 at 2-4. 10 report notes that Little’s conclusions are based on his exam inations of the fire scene and his visual inspections of the dam aged electrical connections routed through the boat to the fire origin area. 21 Any confusion or questions that defendant had over the basis for Little’s conclusions could be addressed in a deposition or through other discovery means. See Kirkland v. Marriott Int’l 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 . Corp., No. 99-10 48, 20 0 0 WL 33915847, at *2 (E.D. La. Nov. 29, 20 0 0 ) (same). Finally, defendant received Little’s report in August 20 15, well before the April 20 16 deadline. 22 Therefore, Little’s report is tim ely and adequately sets forth the m atters about which he will testify and the basis for his opinions. Furtherm ore, although Little’s report did not include inform ation like the exhibits used to support his conclusions, his qualifications, his com pensation, or other cases in which he has testified as an expert, plaintiffs separately gave defendant the photographic exhibits that Little relied on, 23 his com pensation, 24 and his resume, which included his qualifications and a 21 22 23 24 Id. R. Doc. 27-1 at 2. R. Doc. 36 at 14. R. Doc. 36-13. 11 list of cases in which Little has testified as an expert either at trial or by deposition. 25 Defendant had all of this inform ation before Little’s deposition and was not prejudiced by its om ission from Little’s report. For the foregoing reasons, plaintiffs’ technical noncom pliance with Rule 26 does not warrant this Court’s striking Little’s report. See Knorr, 20 0 5 WL 20 60 90 5 at *2. B. Da ub ert In addition to its Rule 26 argument, defendant argues that Little’s report does not com ply with the standards of Federal Rule of Evidence 70 2 and Daubert. In support, defendant maintains that Little’s conclusions are unreliable because Little’s theory of causation is scientifically unsupportable and does not conform with the Scientific Method as applied to fire causation investigations, as explained by National Fire Protection Association publication 921, Guide for Fire and Explosion Investigations. 26 The Court finds that defendant’s argum ents have m erit. In determ ining whether an expert’s m ethodology is sufficiently reliable, Daubert asks, am ong other things, whether the expert’s m ethodology can be controlled by standards, and whether the theory or 25 26 R. Doc. 36-12. R. Doc. 27-1 at 16. 12 m ethodology is generally accepted within the scientific com m unity. 50 9 U.S. at 594. Courts largely agree that the peer-reviewed NFPA 921 em bodies the standards of the field of fire investigation and causation. David L. Faigm an et al., 5 Modern Scientific Evidence § 37:9 (20 15-20 16 ed.); see also Johnson v. Sam sung Elec. Am ., Inc., 277 F.R.D. 161, 165-66 (E.D. La. 20 11); Butcher v. Allstate Ins. Co., No. 0 6-423, 20 0 9 WL 30 1822, at *3 (S.D. Miss. Feb. 5, 20 0 9) (“It is well recognized that [NFPA 921] is the m ost generally accepted standard for m ethodology for [fire scene investigation]”.); Travelers Prop. & Cas. Corp. v. Gen. Elec. Co., 150 F. Supp. 2d 360 , 366 (D. Conn. 20 0 1) (noting that NFPA 921 is “a peer reviewed and generally accepted standard in the fire investigation com m unity”). NFPA 921 explains that in order to apply the Scientific Method to fire incident investigation, the investigator m ust follow seven steps: (1) identify the problem; (2) define the problem ; (3) collect data; (4) analyze the data; (5) develop a hypothesis; (6) test the hypothesis; and (7) select a final hypothesis. N ational Fire Protection Association 921: Guide for Fire and Explosion Investigation, 19 (20 14). It goes on to note that a hypothesis can be tested “physically by conducting experiments, analytically by applying accepted scientific principles, or by referring to scientific research . . . .” Id. It further observes that “whenever the investigator relies on research as a 13 m eans of hypothesis testing, references to the research relied upon should be acknowledged and cited.” Id. at 20 . Sim ply identifying a fuel or ignition source does not and cannot describe how a fire came to be. The investigator m ust determ ine and test the sequence of events that allowed for combustion to begin. Id. at 20 1-0 2. NFPA 921 devotes an entire chapter to fires started by electricity. According to NFPA 921, for a fire to start from an electrical source, the electrical wiring, equipm ent, or com ponent m ust have been energized, and this energy m ust produce sufficient heat and temperature to ignite nearby com bustible m aterial. Id. at 10 7. Ignition will not occur unless the heat transfer from the electrical source is maintained for long enough to bring the fuel source to its ignition tem perature. Id. NFPA 921 states that before a fire can properly be determ ined to have been caused by electricity, the source of heat, the temperature generated, the first ignited fuel, and the path of transfer from the heat source and the ignited fuel m ust be calculated or identified. Id. Finally, the NFPA cautions that the investigator m ust be careful not to assum e that abnorm al electrical activity or dam age (like arcing) is evidence that the fire was caused by electricity, because this dam age can be both the cause of the fire or a result of the fire. Id. at 10 9. 14 Little’s report states his hypothesis that electrical activity caused the fire on the Budget Bender. Little posits that due to water ingress, a pigtail electrical connector corroded to the point that it caused a short circuit, which energized circuits with no circuit breaker protection. 27 These energized circuits supposedly created energy that traveled through the wiring harness and other electrical connections until they overheated and started the fire. 28 Little based his conclusions on his analysis of the boat’s electrical system and his personal observations of the pigtail connection, the wiring harness, and other conductors, which revealed evidence of electrical activity and dam age. 29 Though Little’s theory seem s possible, his report and subsequent deposition reveal two fatal flaws with his methodology that undercut its reliability: Little does not provide critical data, and he never tested his hypothesis. The Court addresses each deficiency in turn. 1. La ck o f Cr it ica l D a t a Little’s report never identifies when the short circuit occurred, the m agnitude and duration of the current generated by the short circuit, or the 27 R. Doc. 27-2 at 3-4. Contrary to defendant’s expert report, Little did not say there were no circuit breakers in the wiring. Rather, he stated that the short circuit allowed the circuit breakers to be bypassed. Id. at 3. 28 Id. at 3. 29 Id. at 2-4. 15 am ount of energy created and the temperature generated. In fact, Little’s report acknowledges that he never identified the specific connector or conductor that failed, the devices that “m ay have been involved,” or “whether or not the ground circuit was involved.”30 Nor did he determ ine the relationship between the pigtail connector and the wiring harnesses routed through the fire origin area. 31 Without this data, Little’s proposed cause of the fire is nothing m ore than a possibility rooted in speculation, a flaw that at least one other district court has found to warrant exclusion of an expert electrical engineer in a fire case. See Gross v. Daim lerChry sler Corp., No. 0 1-320 3, 20 0 3 WL 2330 5157, at *4 n.6 (D. Md. Sept. 29, 20 0 3) (expert’s theory that the m ost likely scenario was that the electrical fire was caused by short circuit was rooted in “pure speculation [as] there is no identification whatsoever of the source, cause or measurable “severity” of the alleged overcurrent”). The data that Little does possess and rely on, the electrical activity and dam age in some of the electrical connections, is at best equally consistent with being the cause of the fire and an effect of the fire, and at worst m ore likely evidence of an effect of the fire. See N FPA 921 at 10 9; Faigm an, supra, at § 37:51 (“Did the 30 31 Id. Id. 16 wire short and start the fire, or did the fire burn the insulation and cause the wire to short? Alm ost always it is the latter.”). 2. La ck o f Te s t in g Little likely would have developed som e of the im portant data, and shown whether the electrical dam age was a cause or the effect of the fire, had he tested his theory. Unfortunately, and despite having over two years to do so, Little never did any testing to confirm his hypothesis. 32 NFPA 921 m akes clear that a hypothesis as to the cause of a fire should be tested before any cause can be officially determ ined. In his deposition, Little adm its that he intended at the time he drafted his report to do testing, including X-ray tests, m etallurgical tests, destructive analysis, and laboratory analysis of the boat’s wiring. 33 This testing would have allowed Little to “clarify absolutely” whether the corrosion that Little opines caused the short circuit occurred before the fire or because of it, or even because of the water used by the firefighters to put out the fire. 34 Little also adm its that additional testing and analysis could have shown whether an external device plugged into the 32 Plaintiffs did test their theory of how water could have entered the electrical system in Captain Plaisance’s “hose-test.” As defendant seeks to exclude that evidence, the Court addresses its adm issibility in another order. 33 R. Doc. 60 -1 at 11. 34 Id. at 9-10 . 17 same pigtail connector could have failed and caused the fire. 35 Although physical experimentations and recreations are not the only m eans by which a hypothesis can be tested, Little did not even refer to any scientific research or publications that he used to test his hypothesis analytically. See N FPA 921 at 20 . Nor did he refer to any calculations or m odels he used to test his theory. Failure to test a hypothesis has been found particularly relevant by other courts in Daubert fire cases. See Ham m ond v. Colem an Co., Inc., 61 F. Supp. 2d 533, 539 (S.D. Miss. 1999) (excluding engineering expert in products liability fire case in part because expert did “not attem pt to sim ulate or recreate [sic] the incident . . . . [and has] conducted no tests”), aff’d, 20 9 F.3d 718 (5th Cir. 20 0 0 ); Com er v. Am . Elec. Pow er, 63 F. Supp. 2d 927, 938 (N.D. Ind. 1999) (excluding electrical engineering expert in fire case in part because the expert never did “any testing to determ ine how m any volts it would actually take” to start fire); Knotts v. Black & Decker, Inc., 20 4 F. Supp. 2d 10 29, 10 45 (N.D. Ohio 20 0 2) (excluding electrical engineering expert in fire case in part because of lack of testing to verify expert’s theory that product could lead to overheating and fire). 35 Id. at 12-13. 18 This Court agrees with the reasoning in those cases and finds that Little’s failure to test his hypothesis, com bined with his failure to obtain the relevant data, renders his m ethodology unreliable. As it stands, all that connects the data to Little’s theory is ipse dixit. See Joiner, 522 U.S. at 146. Without m ore data and testing, “there is simply too great an analytical gap between the data and the opinion offered,” id., and plaintiffs have not met their burden in establishing Little’s reliability. See Moore, 151 F.3d at 276. IV. CON CLU SION For the foregoing reasons, the Court GRANTS the motion to exclude the expert testim ony of Troy Little. New Orleans, Louisiana, this _ _ _ _ _ day of October, 20 16. 20th _____________________ SARAH S. VANCE UNITED STATES DISTRICT J UDGE 19
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