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Expert Excluded for Failure to Test and Failure to Rule Out Alternative Causes

Plaintiff brought a product liability action against defendant manufacturer, alleging her home was destroyed by fire caused by a defective satellite receiver. Plaintiff retained a mechanical engineer and fire protection engineering consultant as her expert witness. The expert learned from the homeowner, who learned from a satellite repair technician, that the satellite had “electrical problems.” The technician had apparently serviced several hundred satellites and only the first generation receivers had a propensity to overheat. He never worked on the plaintiff’s receiver and did not know whether plaintiff’s receiver was first or second generation.

Plaintiff’s expert hypothesized that the receiver caused the fire. Yet he admittedly did not test his hypothesis using the subject or an exemplar receiver and conducted no tests to verify whether plaintiff had even experienced the electrical problems that the technician described. He conceded he could not exclude the television or the electrical outlets as possible sources of the fire. He did not even bother to determine whether plaintiff owned the first or second generation receiver.

The underlying court determined the expert failed to follow the accepted rules of fire investigation, had not tested plaintiff’s receiver or any similar receiver, failed to use objective standards in his investigation, and his opinion was not supported by sufficient facts and data. The expert’s testimony was excluded and judgment entered in favor of defendant.

The court of appeals upheld the exclusion, finding that the expert’s failure to rule out alternative causes of the fire and failure to test the subject receiver or similar receivers were fatal to his opinions, which were based on nothing more than conversations with the homeowner and not on scientific data. Further, judgment against plaintiff was warranted because plaintiff could not produce evidence of a specific defect or that any such defect caused the fire.

The expert’s opinions could not save plaintiff’s theory given that he did not test his hypothesis and could point to no specific defect. His reliance on defendant’s creation of a second generation power supply as evidence that the first generation contained defects was held improper without evidence to demonstrate that a defect actually existed. The case is Thompson v. Echostar Comm. Corp., 89 So.3d 696 (Miss. App. 2012).

© Copyright 2020 Armstrong Teasdale LLP. All rights reserved National Law Review, Volume II, Number 284


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Our fire and electrical liability attorneys are fully immersed in fire and explosion issues. We are experienced in fire and explosion training, are active members of professional and legal organizations devoted to these areas and are respected leaders in the industry. In fact, our attorneys are so well-versed in the industries they serve, they are often called upon to share knowledge and experience as instructors, authors and advisors. Our fire and electrical liability clients include well-known companies in the energy, chemical, gas and petroleum industries; product manufacturers and...

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