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Mind Over Matter: Court Finds Expert Opinion Based on NFPA 921 Reliable Despite Absence of Physical Testing

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In Smith v. Spectrum Brands, Inc., 2022 U.S. Dist. LEXIS 142262, the United States District Court for the Eastern District of Pennsylvania (District Court) considered whether the plaintiffs’ liability expert met the requirements of Rule 702 of the Federal Rules of Evidence and could testify that a filter pump for an aquarium tank was defectively designed and caused a fire at the plaintiffs’ home. The defendant filed a motion to exclude the plaintiffs’ liability expert on grounds that the expert’s opinion did not satisfy the reliability element of Rule 702 because the expert never conducted physical testing on the filter pump. The court found that the cognitive testing employed by the expert through various methods, including visual inspections of the evidence, a review of photographs of the scene and literature from the manufacturer, and research on similar products, was sufficiently reliable to admit his opinion.

The Smith case involved a civil action brought by Jeanette Scicchitano Smith and Alexander Smith that arose from a 2019 fire at their residence in Lincoln University, Pennsylvania. The fire purportedly started in a filter pump, which was operating at the time of the fire, that the plaintiffs purchased in 2002 as part of an aquarium tank kit.

After the fire, the plaintiffs hired a fire investigator to inspect the site and try to identify the origin and cause of the fire. The fire investigator placed the origin of the fire in the immediate area of the aquarium tank. The plaintiffs then retained a forensic electrical engineer to assist with investigating the cause of the fire. The electrical engineer reviewed photographs of the fire scene, conducted visual examinations of the electrical items in the area of origin, reviewed x-rays of the filter pump and researched the filter pump as well as similar brands. Based on his investigation, the electrical engineer opined that the subject filter pump caused the fire and that the pump was defectively designed because it did not have a thermal protection component, which would have prevented the fire. The plaintiffs filed a lawsuit against Spectrum Brands (Spectrum), the seller and manufacturer of the filter pump.

Spectrum filed a motion to exclude the plaintiffs’ electrical engineer, arguing that the engineer’s opinions were based on speculation because he did not conduct any physical tests on the filter pump and failed to rule out alternative causes. The plaintiffs opposed the motion, arguing that the engineer followed the scientific method and the National Fire Protection Association (NFPA) 921 guidelines for fire investigations.

The District Court began its analysis by considering Rule 702 of the Federal Rules of Evidence, as well as the United State Supreme Court’s analysis in Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S.  579 (1993) (Daubert), which led to Rule 702. The District Court explained that Rule 702 essentially requires that an expert be qualified to testify on the subject matter, that the testimony be appropriately applied to the facts of the case and based on reliable principals and methods.

In this case, Spectrum did not challenge the engineer’s qualifications or whether the opinion suitably applied to the case. As such, the court focused on whether the engineer’s testimony satisfied the reliability element of Rule 702. The court considered whether the testimony was “based on methods and procedures of science rather than on subjective belief or unsupported speculation.”

Under the Daubert analysis, a key question to be answered in determining whether the theory or technique is based on scientific knowledge is whether it can be tested. However, the District Court clarified that the testing does not necessarily need to be in the form of physical testing.  According to the court, it can also be in the form of cognitive testing, using research and data to test hypotheses through analytical reasoning.

Here, the physical evidence was too severely fire damaged to be physically tested. However, the engineer interviewed the plaintiffs, the private fire investigator, the fire marshal, and he reviewed hundreds of photos, as well as the physical evidence and x-rays of the filter pump. The engineer also reviewed the manufacturer’s literature and researched alternative filter pump designs. In addition, the engineer tested several hypotheses regarding other potential causes of the fire, including the failure of the power cord, the aquarium lamp and the tank heater. The court found that not only were the methods employed by the engineer adequate under the scientific method, but they were also in accordance with NFPA 921, which further supported the reliability of the engineer’s testimony. For these reasons, the court found the engineer’s opinion to be reliable and, thus, admissible at trial.

The Smith case is an important reminder that the analysis of the admissibility of expert testimony is a flexible inquiry that permits experts “wide latitude to offer opinions.” This case establishes that expert testimony does not necessarily require physical experimentation, as long as the expert’s cognitive testing is performed in accordance with the scientific method and other accepted standards. The Smith decision also shows that, with respect to cases involving fires, an engineer’s compliance with NFPA 921 further supports the reliability of the engineer’s opinions. Subrogation professionals should consider this case when facing a motion to exclude their expert.

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