Pennsylvania Court Analyzes Expert Opinions
The United States District Court for the Middle District of Pennsylvania recently handed down its opinion in Mutual Benefit Ins. Co. v. KAZ, Inc. 2014 WL 671445, in which it cited with approval NFPA 921. KAZ was a subrogation action filed by Mutual Benefit Insurance Company (“MBIC”) alleging strict liability, negligence and breach of warranty against defendant KAZ. It was alleged that MBIC’s subrogor, the Millers, had a house that was damaged by fire due to KAZ’ fault in designing, manufacturing, distributing and selling of a vaporizer that was the alleged cause of the fire. Before the court was KAZ’ motion in limine to exclude the testimony of MBIC’s forensic expert.
MBIC’s retained expert, who visited the scene, concluded that the fire’s point of origin was the living room, specifically at the power cord of the vaporizer manufactured by KAZ. MBIC’s expert determined that the power cord failed, igniting the carpet and other nearby combustibles. MBIC further retained another expert to opine on the electrical origin and cause. That MBIC expert concluded that the fire’s point of origin was the power cord of the KAZ vaporizer. The electrical origin and cause expert, using NFPA 921 Section 18.2.1, considered and eliminated all other possible causes for the failure of the cord and determined the only possible cause was a manufacturing defect.
KAZ challenged MBIC’s opinion arguing that it was unreliable because he failed to identify a particular defect in the product which led to the fire. In its analysis, the court set forth the elements of Daubert, FRE 702 and the 3d Circuit cases construing both. It noted that the standard for reliability of expert testimony is not high.
Ultimately, the court concluded that MBIC’s expert testimony, reports and opinion were reliable pursuant to Rule 702. The expert clearly stated in his rebuttal report and his deposition that his analysis followed NFPA 921. “Marshall’s use of Section 18.2.1 is appropriate because the origin of the fire is clearly defined: the parties agree that the fire originated in the northwest part of the living room, where the vaporizer was located. Emig (the other expert) had already concluded that the only possible cause of the fire was electrical.” KAZ, 2014 WL671445*at 3. The court noted the expert methodically eliminated other potential ignition sources except for the vaporizer’s power cord and then eliminated all other potential sources for the cord’s ignition, other than manufacturing defect. The expert then methodically addressed the possible causes for the cord’s malfunction. The expert eliminated all other potential reasons for the malfunction, including the possibility of external damage to the cord, improper use by the owner and the age of the cord.
This case demonstrates the proper use of Section 18.2.1 in identifying the cause and origin of a fire through the process of elimination. The expert concluded that the only possible cause was a manufacturing defect. It is important to note that even if an expert cannot affirmatively identify a defect, he may opine about the defect still if he can eliminate credibly all other potential. The court noted that several other courts had recognized NFPA 921 was reliable for the purposes of 702. (citations omitted). Because the expert’s methodology set forth in NFPA 921 could easily be replicated, the court found the opinion to be reliable. “Under Daubert, there is no reason why Marshall must specifically identify the exact manufacturing defect at issue for his opinion to be admissible.” Id. at 4.