DUTCH HOUSING, INC. v. NORTHLAND INSURANCE COMPANY
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RENDERED:
DECEMBER 28, 2001; 2:00 p.m.
NOT TO BE PUBLISHED
C ommonwealth O f K entucky
C ourt O f A ppeals
NO.
2000-CA-002081-MR
DUTCH HOUSING, INC.
APPELLANT
APPEAL FROM BALLARD CIRCUIT COURT
HONORABLE WILLIAM L. SHADOAN, JUDGE
ACTION NO. 99-CI-00001
v.
NORTHLAND INSURANCE COMPANY
APPELLEE
OPINION
AFFIRMING
** ** ** ** **
BEFORE:
GUDGEL, CHIEF JUDGE; COMBS AND JOHNSON, JUDGES.
JOHNSON, JUDGE:
Dutch Housing, Inc. has appealed from a jury
verdict and subsequent judgment in favor of Northland Insurance
Company entered by the Ballard Circuit Court on June 29, 2000.
Primarily, Dutch has raised four issues:
(1) whether the trial
court abused its discretion by allowing Northland to introduce
evidence through expert witnesses Paul Barnes and Harold Smith,
concerning the fire given Northland’s alleged spoliation of the
evidence; (2) whether the trial court abused its discretion by
refusing to give a missing evidence jury instruction concerning
Northland’s alleged spoliation of evidence; (3) whether the trial
court abused its discretion by allowing Smith to testify as an
expert witness and by not holding a pretrial Daubert hearing; (4)
whether the trial court erred by refusing to direct a verdict in
favor of Dutch on the grounds that Northland failed to meet its
burden of showing that Dutch’s product was the legal cause of the
fire.
Having found no reversible error, we affirm.
This appeal follows a jury trial concerning a product
liability subrogation claim arising from an alleged manufacturing
defect in a mobile home which allegedly caused a fire which
destroyed the mobile home.
The mobile home at issue was owned by
Jim and Terri Hutto, residents of Kevil, Kentucky.
On November
28, 1996, the Huttos purchased the mobile home from a local
dealer.
The mobile home was moved to the Huttos’ property and
set up in January 1997.
One room of the mobile home was used by
the Huttos as an office and was equipped with a computer, a
printer, a fax machine, two telephones, two answering machines
and a desk lamp.
All utility hookups were the responsibility of the
Huttos.
Jim Hutto and his father performed the electrical,
sewer, and water hookups themselves.
Within several months of
delivery, the circuit breakers in the mobile home began to trip
occasionally.
In an attempt to remedy the problem, Jim Hutto and
his father ran a new supply line from the outside meter box to
the circuit breaker box.
Neither Jim Hutto nor his father was a
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licensed electrician as called for by the instructions of the
Dutch homeowners’ manual.
On January 28, 1998, a fire destroyed the Huttos’ home.
The Kevil Fire Department was called, and the fire was eventually
extinguished.
The fire department did not make a determination
of the cause of the fire.
The Huttos had homeowners’ insurance
with Northland, which on January 30, 1998, assigned this claim to
an outside adjusting firm, GAB Robins, North America, Inc.
GAB
Robins received the claim on February 2, 1998, and went to the
Huttos’ fire-loss scene on that day.
Based on GAB Robin’s
estimates, Northland, on February 18, 1998, issued payment to the
Huttos for $29,974.00 for loss of the mobile home and $11,000.00
for their personal property loss.
On February 17, 1998, GAB Robins spoke with Jim
Tschida, a Northland adjuster, and Tschida authorized a “cause
and origin” investigation.
Northland retained the services of
cause and origin investigator Paul Barnes, who was instructed by
Northland to conduct a cause and origin investigation at the fire
scene.
On February 18, 1998, Barnes visited the loss site and
determined that the fire was caused by a staple which had been
driven through the insulation of a electric wire near a duplex
outlet in the room of the mobile home which had been used as an
office.
On February 25, 1998, Northland sent a letter to Dutch
and Kentucky Oaks Homes (the dealer who sold and installed the
mobile home) via certified mail, notifying them that it believed
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the fire loss was caused by “faulty manufacturing” and that, if
its expert attributes the loss to a manufacturing defect, “our
company will seek recovery from your firm.”
The letter stated
that Dutch and Kentucky Oaks Homes would have ten days to inspect
the loss site, or Northland would assume that they did not wish
to inspect and Northland’s expert would be unchallenged.
Dutch received this letter from Northland on March 2,
1998.
Dutch, a subsidiary of Champion Enterprises, Inc.,
contacted Louis M. Balius, general counsel for Champion.
On
March 3, 1998, Balius contacted Northland with the following
electronic mail message:
Please be advised that I received your
February 25, 1998 notification letter
regarding the above-referenced claim. Dutch
will visit the site and investigate the
remains of the home and attempt to determine
the cause and origin of the fire. However,
it will not be possible to have our
investigators there within the 10 day
deadline set forth in your letter. Today, we
will contact our investigators, who will
advise you of their schedule for visiting the
site. Please forward to me any reports
prepared by your fire experts, the local fire
department or any other source so that we may
assess the situation. Please do not hesitate
to call me at 248-340-7745. My facsimile
number is 248-340-7773. My address is: Louis
M. Balius, Assoc. General Counsel, Champion
Enterprises, Inc., 2701 University Drive,
Suite 300, Auburn Hills, Michigan 48353.
Dutch also contacted GAB Robins, via facsimile, and
requested any expert reports or pictures.
GAB Robins responded
by telling Balius that any photographs and reports would be “kept
strictly between Paul Barnes and Northland Insurance Company.”
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After receiving the notice of loss from Northland,
Dutch notified its insurance carrier, Travelers Insurance
Company, of Northland’s potential subrogation claim.
On March 5,
1998, Peter Kovalski, a claims representative for Travelers,
contacted Northland about the Huttos’ loss and left a message
that Dutch “was interested in investigating.”
Later that day,
Kovalski spoke with JaAnne Coenen, a recovery specialist with
Northland, and in a letter dated March 6, 1998, stated:
As you know from our telephone
conversation, we insure Champion and are
responsible for evaluating this claim for
property damage. Initially, I would like to
obtain your expert’s report, which identifies
the product defect and color photos of the
accident scene so we can determine if we need
to arrange for an expert inspection within
the next couple of weeks. Please send the
report and photos by overnight mail as soon
as possible.
On March 10, 1998, Coenen responded by letter stating
in part:
Per your requests to our office
concerning the above-captioned file, I
enclose for your review the limited
documentation we have at this time. As of
this date, I do not have the hard copy of the
cause and origin report written by Paul
Barnes.
Mr. Barnes has inspected the premises,
however, the formal report has not been
received in Northland’s office. Mr. Barnes
can be reached at 502-885-0733.
As this claim progresses, and I have
additional supporting documentation for the
claim, I will forward it to your offices.
It appears that after this point formal written
communication between the parties ceased and the parties began to
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communicate by telephone conversations and voice messages.
Needless to say, the parties have different accounts of the
subsequent communication which occurred between them.
However,
it is undisputed that without giving any further written notice
Northland set a deadline that the debris could be removed by the
Huttos after April, 1, 1998.1
On April 2, 1998, the Huttos had
all remains of the mobile home removed.
On April 30, 1998, Coenen received a phone call from
Balius, asking for a status on Northland’s subrogation claim
against Dutch.
Coenen called Kovalski and, on May 6, 1998, she
sent documentation to Travelers on the subrogation claim.
Included therein was a copy of Barnes’ cause and origin report.
On May 20, 1998, Kovalski notified Coenen that Travelers would
like to arrange for an expert to visit the fire-loss site.
Dutch
claims that it learned on May 22, 1998, for the first time that
the mobile home debris had been cleared on or about April 2,
1998.
On January 7, 1999, Northland and the Huttos filed this
action against Dutch and Kentucky Oaks Homes alleging a
manufacturing defect.
Northland sought to recover $44,594.39 in
payments it had made to the Huttos for loss of the mobile home
1
At trial, Jim Hutto testified that he had received numerous
complaints from both city officials and neighbors that the debris
was an “eyesore” that needed to be removed as soon as possible.
In its brief, Northland argues that the Huttos were “homeless”
during this time. After reviewing the record, it appears that
during this time Northland was paying the Huttos’ necessary
expenses including food and shelter as an accommodation so the
fire scene could be preserved for further investigation.
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and personal property, and the Huttos sought $29,933.14 in
uninsured losses they incurred as a result of the fire.2
On June 5 and 6, 2000, a jury trial was held in Ballard
Circuit Court, and the jury returned a verdict in favor of
Northland for $44,594.39.
On June 26, 2000, the trial court
entered a judgment consistent with the jury verdict.
On June 15,
2000, prior to entry of final judgment, Dutch filed a motion for
judgment notwithstanding the verdict.
motion was denied.
On August 4, 2000, the
This appeal followed.
Dutch first claims the trial court abused its
discretion by allowing Northland to present evidence through Paul
Barnes and Harold Smith concerning the cause of the fire given
Northland’s spoliation of the evidence.
A trial court’s
evidentiary ruling is subject to appellate review to determine if
it has abused its discretion.3
The test for abuse of discretion
is whether the trial judge’s decision was arbitrary,
unreasonable, unfair, or unsupported by sound legal principles.4
Dutch’s central argument is that the trial court abused its
discretion by allowing Barnes and Smith to testify concerning the
cause of the fire since the mobile home debris was removed before
2
By agreed order, the plaintiffs subsequently dismissed all
claims against Kentucky Oaks Homes and the Huttos settled with
Dutch and dismissed all claims against it.
3
Goodyear Tire and Rubber Co. v. Thompson, Ky., 11 S.W.3d
575, 577 (2000)(citing Tumey v. Richardson, Ky., 437 S.W.2d 201,
205 (1969); and Transit Authority of River City v. Vinson,
Ky.App., 703 S.W.2d 482, 484 (1985)).
4
Id. at 581.
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Dutch was able to inspect it making it difficult for Dutch to
refute Northland’s experts’ conclusions.
On January 7, 2000, the trial court held a pretrial
hearing to address Dutch’s motions concerning Northland’s actions
and concluded that the notice of 29 days that Dutch had been
given before the mobile home debris would be removed was
insufficient under the circumstances.5
The trial court
recognized that under certain circumstances the time that
Northland gave Dutch to inspect the mobile home debris could be
deemed as reasonable, but that absent a compelling reason Dutch
should have been provided more time and/or better notice of
Northland’s intention to remove the mobile home debris.
The
trial court indicated that to properly ensure that Dutch had
notice and that Northland had documentation it had given notice,
Northland should have given notice of its intentions through
written letters rather than phone calls and voice messages.
During the hearing, the only relief that Dutch sought
from the trial court was to completely exclude the expert
testimony of Barnes and Smith.
Northland argued that it had
given adequate notice to Dutch, but that in the event the trial
court concluded that it had improperly destroyed the evidence a
missing evidence instruction would be the proper relief, and not
disqualification of its only expert witnesses.
5
The trial court
This was the second time the parties had discussed possible
sanctions before the trial court. During a hearing held on
October 15, 1999, the trial court gave some indication as to how
it might rule on the motions, but no order was entered.
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concluded that Northland had improperly destroyed the evidence,
but that Dutch was negligent in its own right.
The trial court
ultimately sanctioned Northland by refusing to permit Barnes to
give an opinion that the staple was the cause of the fire.
However, the trial court also ruled that provided it later
concluded Smith was qualified as an expert metallurgist under
KRE6 702, Smith would then be allowed to testify to his expert
opinions relative to the cause of the fire.
In Monsanto Co. v. Reed7, our Supreme Court declined to
create a new tort or claim for spoliation of evidence.
Instead,
the Court ruled that “[w]here the issue of destroyed or missing
evidence has arisen, we have chosen to remedy the matter through
evidentiary rules and ‘missing evidence’ instructions.”8
In a
criminal case interpreting the application of Sanborn, supra, the
Court stated:
[T]he court should consider whether a
“missing evidence instruction” should be
given or whether the Commonwealth’s evidence
should be limited, or even prohibited, to
eliminate the prejudice resulting from the
unavailability of the exculpatory evidence.”9
We believe that under the circumstances of the case sub
judice, the trial court did not abuse its discretion by imposing
6
Kentucky Rules of Evidence.
7
Ky., 950 S.W.2d 811, 815 (1997).
8
Id. (citing Tinsley v. Jackson, Ky., 771 S.W.2d 331 (1989);
and Sanborn v. Commonwealth, Ky., 754 S.W.2d 534 (1988)).
9
Tinsley v. Jackson, Ky., 771 S.W.2d 331, 332 (1989).
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this limited sanction on Northland.10
We believe that under
Monsanto and Tinsley the trial court has discretion to weigh the
culpability of the parties and to fashion an appropriate remedy.
In the present case, the trial court noted that Northland acted
unreasonably, but also that Dutch was dilatory in getting an
investigator to go to the Huttos’ home.
Thus, the trial court
chose a sanction whereby it attempted to ameliorate the harm
caused to Dutch by the removal of the debris by preventing Barnes
from testifying concerning his opinion as to the cause of the
fire.11
We hold that the trial court did not abuse its
discretion in ordering this limited sanction.
Dutch also claims the trial court abused its discretion
by failing to give a missing evidence instruction.
We believe
for the most part that this issue has already been sufficiently
10
Dutch has cited this Court to foreign courts that have
treated spoliators more harshly than the trial court did in the
present case. We note that our review of these cases reveal that
the actions was more egregious. For example, in Stubli v. Big D
International Trucks, Inc. 810 P.2d 785 (Nev. 1991) the spoliator
destroyed evidence before the other parties were given notice and
an opportunity to inspect. In Lee v. Boyle-Midway Household
Products, Inc. 792 F.Supp. 1001 (W.D.Pa. 1992) a consumer was
injured when drain cleaner he had used to unclog his kitchen sink
erupted while he was bent over the sink. The plaintiff’s counsel
lost the only evidence that the manufacturer could use in its
defense, the drain cleaner. In the present case, Dutch did have
access to the staple that Northland argued was defective and
Dutch had an opportunity to disprove Northland’s conclusions.
Moreover, in the present action Dutch was given an opportunity to
inspect the premises before the Huttos removed the debris.
11
We note that this sanction as a practical matter had very
little impact on the trial. Barnes in fact did testify during
cross-examination that he “sent to the lab what I thought caused
it, the lab confirmed it.” And, Smith’s testimony obviously was
based on the premise that Barnes had identified the staple and
wire as the cause of the fire.
-10-
addressed.
Under Monsanto and Tinsley, it is within the
discretion of the trial court to remedy spoliation of evidence.
Obviously, the remedy must be appropriate for the particular
abuse in each individual case.
During the pre-trial hearing,
Northland asked the court to give a missing evidence instruction
if it decided sanctions were appropriate.
The trial court was
within its discretion to refuse to give a missing evidence
instruction.
Dutch next claims the trial court abused its discretion
by allowing Harold Smith to testify and by failing to hold a
Daubert12 evidentiary hearing.
We disagree.
Kentucky has adopted the standards set forth in Daubert
and Kumho13, for determining whether a witness is qualified to
testify as an expert.14
KRE 702 states:
If scientific, technical, or other
specialized knowledge will assist the trier
of fact to understand the evidence or to
determine a fact in issue, a witness
qualified as an expert by knowledge, skill,
experience, training, or education, may
testify thereto in the form of an opinion or
otherwise.
For a review of Daubert and its application in
Kentucky, we cite the applicable portion of Goodyear:
12
Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S.
579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993).
13
Kumho Tire Co. v. Carmichael, 526 U.S. 137, 119 S.Ct.
1167, 143 L.Ed.2d 238 (1999).
14
Goodyear Tire, 11 S.W.3d at 577.
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When faced with a proffer of expert
testimony, the trial judge must determine at
the outset of trial pursuant to KRE 104,
“whether the expert is proposing to testify
to (1) scientific [, technical, or other
specialized] knowledge that (2) will assist
the trier of fact to understand or determine
a fact in issue.” Daubert, 509 U.S. at 592,
113 S.Ct. at 2796, 125 L.Ed.2d at 482. In
order to meet the above standard, proffered
expert testimony, which is based on
“scientific, technical, or other specialized
knowledge,” must be both relevant and
reliable. Id. at 589, 113 S.Ct. at 2795, 125
L.Ed.2d at 480.
The consideration of relevance has been
described as one of “fit.”
“Fit” is not always obvious, and
scientific validity for one purpose
is not necessarily scientific
validity for other, unrelated
purposes. . . . The study of the
phases of the moon, for example,
may provide valid scientific [,
technical, or other specialized]
“knowledge” about whether a certain
night was dark, and if darkness is
a fact in issue, the knowledge will
assist the trier of fact. However,
(absent creditable grounds
supporting such a link), evidence
that the moon was full on a certain
night will not assist the trier of
fact in determining whether an
individual was unusually likely to
have behaved irrationally on that
night.
Daubert, 509 U.S. at 591, 113 S.Ct. at 2796,
125 L.Ed.2d at 481-82 (internal citation
omitted).
The consideration of reliability entails
an assessment into the validity of the
reasoning and the methodology upon which the
expert testimony is based. It is the inquiry
into the reasoning and methodology where
application of the Daubert and Mitchell
factors comes most into play. We emphasize
that the inquiry into reliability and
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relevance is a flexible one. The factors
enumerated in Daubert and Mitchell are
neither exhaustive nor exclusive. A trial
court may apply any or all of these factors
when determining the admissibility of any
expert testimony.
The facts set forth in Daubert and
adopted in Mitchell that a trial court may
apply in determining the admissibility of an
expert’s proffered testimony include, but are
not limited to: (1) whether a theory or
technique can be and has been tested; (2)
whether the theory or technique has been
subjected to peer review and publication; (3)
whether, with respect to a particular
technique, there is a high known or potential
rate of error and whether there are standards
controlling the technique’s operation; and
(4) whether the theory or technique enjoys
general acceptance within the relevant
scientific, technical, or other specialized
community. Daubert, 509 U.S. at 592-94, 113
S.Ct. at 2796-97, 125 L.Ed.2d at 482-83.
One of Dutch’s main arguments is that the trial court
abused its discretion by failing to hold a pretrial Daubert
hearing.
Dutch has offered no authority for the proposition that
the trial court must hold a formal Daubert hearing.
Dutch cites
this Court to Goodyear for support of its position that the trial
court abused its discretion in making its Daubert determinations.
However, Goodyear merely states that the trial court must make
the necessary determinations “at the outset of trial”15 and “at a
preliminary hearing.”16
15
Goodyear, supra at 578.
16
Id. at 583.
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We believe Morales v. American Honda Motor Co., Inc.,17
correctly states the law:
Furthermore, contrary to Defendants’
assertions, a district court is not required
to hold a formal hearing to determine whether
a person is qualified to be a witness;
rather, the court must merely make a
determination as to the proposed expert’s
qualifications.
We have reviewed that record and believe the trial
court complied with the requirements set forth in Goodyear as to
the manner of the hearing.
Dutch’s argument that the trial court
failed to comply with Goodyear is disingenuous.
Two preliminary
hearings were held and Dutch was given the opportunity to add
oral arguments to its motions to exclude Smith as an expert
witness.
At a hearing held on May 5, 2000, the trial court
indicated that it had read all of the extensive written motions
submitted by the parties.
We believe the pre-trial hearings held
by the trial court complied with the requirements of Goodyear.
Dutch also argues that the trial court abused its
discretion by allowing Smith to testify because he was
unqualified to render an expert opinion.
In its brief, Dutch
argues:
The fact that Smith was attempting to give an
opinion on what caused the fire at the Hutto
Home without having personally gone to the
scene and having eliminated other potential
causes concerned the trial court, and was the
basis for its ruling that Smith could not
testify that a high resistance fault was the
cause of the fire. However, the Court
17
151 F.3d 500, 515 (6th Cir. 1998)(citing Hopkins v. Dow
Corning Corp., 33 F.3d 1116, 1124 (9th Cir. 1994)).
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apparently disagreed or disregarded Dutch’s
challenges to Smith’s qualifications or his
unreasonable reliance on the findings of
Barnes [citation to record omitted][.]
After reviewing the record and the authority cited to us by the
parties, we cannot say that the trial court abused its discretion
by allowing Smith to testify.
In Daubert, the Court recognized
that an expert’s testimony will often be based on specific
evidence given to him for examination, and unlike a lay witness,
he may offer opinions, “including those that are not based on
first hand knowledge or observations.”18
Furthermore, KRE 703(a) states:
The facts or data in a particular case
upon which an expert bases an opinion or
inference may be those perceived by or made
known to the expert at or before the hearing.
If of a type reasonably relied upon by
experts in the particular field in forming
opinions or inferences upon the subject, the
facts or data need not be admissible in
evidence.
Thus, the argument that Smith’s testimony is tainted or that he
was unqualified to render an opinion because he never visited the
fire scene is unfounded.
At trial, Smith was called for the specific purpose of
testifying as to whether the melting around the staple indicated
that it was an ignition point.
Whether the melting was
consistent with the external heat of a fire or whether it was
consistent with a higher degree of heat at the origin of the fire
was hotly disputed at trial.
18
Obviously, Smith testified that he
Daubert, supra at 592.
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believed after testing the staple that its condition was
consistent with melting that would have occurred at the origin of
the fire.
Dutch’s central argument before this Court is that
Smith is a metallurgist and not an electrical engineer, and thus
unqualified to testify as to an electrical cause of the fire.
Dutch presented this same argument to the trial court and the
jury during the trial.
Weisgram v. Marley Co.19
For its contention, Dutch has cited
In Weisgram, a wrongful death action
was brought against a manufacturer of an allegedly defective
baseboard heater.
The plaintiffs’ sought to introduce testimony
of a metallurgist who had been instructed as to the plaintiffs’
theory of the cause of the fire and had been asked to look at
certain heater components.
The metallurgist examined the
thermostat contacts and the high limit control contacts.
He
admitted that he was not an expert in fire cause and origin, in
baseboard heater operation, or in the design or testing of
contacts in such a unit.
Weisgram is easily distinguished from the present case.
Here, Smith was asked to testify with regard to an area within
his specific expertise.
More precisely, at trial his testimony
was introduced for the purpose of examining a staple which had
been in the fire.
Also, unlike the expert in Weisgram, Smith did
have ten years of experience as a cause and origin investigator,
but conceded that his expertise was limited to testing materials
19
169 F.3d 514 (8th Cir. 1999).
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that related to causes of fire.
Moreover, in Weisgram the
metallurgist formed his theory with practically no knowledge of
the heater at issue and performed no tests to determine whether
his theory was possible.
In the present case, Smith performed tests on the
staple using both a microprobe and an electron microscope.
Smith
did microprobe analysis of the staple legs to determine the cause
of globules that formed on the staple.
Smith also was able to
determine the elements that were present on the leg of the staple
and to determine the origin of the elements.
Smith determined
that the staple leg revealed iron and copper prominently fused
together on the globule.
Smith concluded that there had been a
fusion between the copper wire and metal staple and this came
about through a long, slow defusion process until an ignition
occurred.
Smith concluded that this was the result of a
misdriven staple in the wire which created a high resistance
fault.
Smith testified that this would have generated heat in
the surrounding area which would have affected the surrounding
materials and would have made the materials more easily
ignitable.
Smith testified that his theory was based on more
than “mere speculation.”
Dutch effectively cross-examined Smith
as to the range of his knowledge and attempted to dispute his
findings with its own expert witness, James MacDonald.
After a
thorough review of the record, we cannot say that the trial court
abused its discretion by allowing Smith to testify.
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His
testimony was based on scientifically acceptable examinations
with the caveat that he was relying on the assumption that Barnes
had given him untainted evidence.
The trial court did not err in
allowing his testimony.
Dutch’s final claim of error is that Northland failed
to meet its burden of proof at trial to prove that a misdriven
staple was the case of the fire and that the trial court should
have granted Dutch a directed verdict.
We initially consider
Northland’s burden of proof in a product liability case.
In
Perkins v. Trailco Manufacturing & Sales Co.,20 our Supreme Court
stated:
The sufficiency of circumstantial
evidence to overcome a motion for a directed
verdict was discussed in Holbrook, supra.
Therein we said, “. . . the essence of the
test concerning the sufficiency of the
plaintiff’s circumstantial evidence
concerning causation is that the proof must
be sufficient to tilt the balance from
‘possibility’ to ‘probability’.”
The standard of review of a trial court’s denial of a
motion for a directed verdict is set forth in Lewis v. Bledsoe
Surface Mining Co.,21 which states:
Upon review of the evidence supporting a
judgment entered upon a jury verdict, the
role of an appellate court is limited to
determining whether the trial court erred in
failing to grant the motion for directed
verdict. All evidence which favors the
prevailing party must be taken as true and
20
Ky., 613 S.W.2d 855, 857 (1981).
21
Ky., 798 S.W.2d 459, 461-62 (1990). See also Smith v.
Wal-Mart Stores, Inc., Ky., 6 S.W.3d 829, 830 (1999).
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the reviewing court is not at liberty to
determine credibility or the weight which
should be given to the evidence, these being
functions reserved to the trier of fact. The
prevailing party is entitled to all
reasonable inferences which may be drawn from
the evidence. Upon completion of such an
evidentiary review, the appellate court must
determine whether the verdict rendered is
“‘palpably or flagrantly’ against the
evidence so as ‘to indicate that it was
reached as a result of passion or prejudice’”
[citations omitted].
After reviewing the record, we cannot say that the
verdict was “palpably or flagrantly against the evidence so as to
indicate that it was reached as a result of passion or
prejudice.”
For its contention that Northland’s evidence never
achieved the required threshold of “probability”, Dutch relies on
the following excerpt from Smith’s testimony:
Q: Did you make a conclusion as to whether or
not the staple contributed to ignition?
A: Yes.
Q: Tell the jury your conclusion.
A: Melting occurred and this long term high
resistance fault resulted in continuous
heating over a period for a year until
ignition of adjacent wood resulted and the
fire started.
Q: In your opinion, is that something that
could have caused the fire?
A: Yes.
Admittedly, Northland would have been better served by
never asking Smith whether the melting was something that “could”
have caused the fire.
Moreover, upon cross-examination by Dutch
about other possibilities as to why the staple was in such
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condition, Smith noted that “anything is possible.”
However,
Smith had already testified in length that from his testing and
examination of the staple that he believed the staple was the
origin of the fire.
It is clear from reviewing Smith’s
testimony that he believed the staple and the wire caused a high
resistance fault22 which ignited the adjacent wood.
Smith’s
testimony coupled with Barnes’ testimony that the staple was the
cause and origin of the fire met the necessary requirements set
forth in Perkins and Holbrook, supra.
For these reasons, the judgment of the Ballard Circuit
Court is affirmed.
GUDGEL, CHIEF JUDGE, CONCURS AND FILES SEPARATE
OPINION.
COMBS, JUDGE, DISSENTS AND FILES SEPARATE OPINION.
GUDGEL, CHIEF JUDGE, CONCURRING:
Although I am very
sympathetic to the views expressed in the dissenting opinion
herein by Judge Combs, I nevertheless feel constrained to concur
in the result reached by Judge Johnson.
As an appellate judge, I
ordinarily am unwilling to second-guess the trial court’s
exercise of its discretion in supervising and conducting trial
proceedings, except in instances where the alleged abuse is
egregious.
Indeed, reasonable judicial minds may disagree
regarding particular issues in most cases involving abuse of
discretion issues.
Because I am reluctant to find an abuse of
22
Smith defined a “high resistance fault” as “an incomplete
circuit.”
-20-
discretion except in the most egregious of instances, and I am
satisfied that the trial court’s rulings and exercise of its
discretion herein were not sufficiently egregious to justify our
intervention on appeal, I concur in Judge Johnson’s opinion.
COMBS, JUDGE, DISSENTING:
I am concerned about the
inadequacy of the sanctions imposed by the trial court on the
spoliation of evidence issue.
Since the excluded testimony of
Barnes ultimately made its way to the jury through Smith, more of
an equalizer was needed in order to compensate for the
disadvantage resulting to Dutch by the lack of opportunity to
investigate the crime scene.
Indeed, the trial court had
observed that such an injustice had been perpetrated on Dutch.
I
believe that more of a reprisal or sanction against Northland was
required as a compensation.
At the very least, a missing evidence instruction was
warranted.
Under the circumstances of this case, the combination
of spoliation with the inadequacy of the sanction made such an
instruction necessary.
Failure to grant that instruction did
amount to an abuse of discretion.
I would vacate and remand for
a new trial.
BRIEF AND ORAL ARGUMENT FOR
APPELLANT:
BRIEF AND ORAL ARGUMENT FOR
APPELLEE:
Mindy Barfield
Lexington, KY
R. Aaron Hostettler
London, KY
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