Fire cause and origin expert excluded by Maryland federal judge under Daubert analysis
May 29th, 2011
In Fireman's Fund Insurance Company a/s/o Mangione Family Entpr. v. Tecumseh Products Co., et al., Civil Case No. JKB-09-2811 (D. Md. Mar. 2, 2011), the United States District Court for the District of Maryland excluded plaintiff's causation expert for failing to meet the generally accepted standards for fire investigation and failing to satisfy the requirements set out in Daubert v. Merrell Dow Pharmaceuticals, 509 U.S. 579 (1993) and its progeny, which resulted in the Court granting summary judgment for defendants.
On November 13, 2006, the Hilton Garden Inn in Owings Mills, Maryland suffered a fire and resulting damage of approximately $100,000 which plaintiff, Fireman's Fund Insurance Company paid pursuant to an insurance policy issued to Mangione Family Enterprises, the hotel owner.
As Mangione's subrogee, Fireman's Fund retained two certified fire investigators to determine the cause of the fire. After an investigation, the first expert concluded that the fire originated in the heat pump room and was caused by an undetermined failure or malfunction of the heat pump. Plaintiff's second expert, Kenneth McLauchlan, was retained to determine the exact cause of the hypothesized failure of the heat pump.
The chief building engineer reported that other heat pumps had malfunctioned and that the compressors had to be replaced regularly. McLauchlan concluded that the heat pump was the only plausible source of the fire and took possession of three heat pumps from the hotel, including, the "subject" heat pump that caused the fire, and two exemplar pumps (a working heat pump and a similarly damaged heat pump). McLauchlan examined and compared the three pumps and concluded that a manufacturing defect caused the compressor failure which caused the fire.
Defendants moved to exclude McLauchlan's testimony and the Court agreed. The Court concluded that under Daubert and its progeny, the methodology McLauchlan employed to reach his conclusions was unreliable. In particular, the Court held that NFPA 921, the generally accepted standards for fire investigation, instructs the investigator to collect data about the fire "by observation, experiment, or other direct . . . means, to analyze the data objectively and without speculation, to develop a hypothesis based solely on the data collected, to test the hypothesis by comparing it to all known facts, and to repeat the process until all feasible hypotheses have been tested. Until these steps are completed, NFPA 921 unambiguously requires an investigator to list the cause of the fire as undetermined."
The Court focused on the testing requirements under Daubert, noting that the failure to properly test a hypothesis is often grounds for excluding expert testimony. Also, the expert must rule out alternative hypotheses. Further, experts are required "to demonstrate that objects and materials are capable of behaving in the manner they hypothesize under the conditions of the event in question."
Even though McLauchlan's report had a section titled "Methodology", it failed to describe the tests utilized in forming his hypothesis. The Court found that McLauchlan had formed his hypotheses through speculation, merely relying on similar damage between the exemplar and subject heat pumps, having never tested his hypothesis, instead deriving his final hypothesis from his observations of the exemplar heat pumps, rather than testing it against them. The Court determined that McLauchlan's sample size of one being insufficient to rule out an otherwise plausible hypothesis. Also, McLauchlan failed to test and exclude a plausible alternative explanation for the fire. Consequently, in excluding McLauchlan's testimony, the Court held that McLauchlan did not meet the generally accepted standards of fire investigation set out in NFPA 921 and did not satisfy the requirements of testing and ruling out other hypotheses as required by Daubert and its progeny. Since Plaintiff's other expert relied upon McLauchlan's findings in formulating his opinions, the Plaintiff's were left without an expert to testify as to causation and the Court granted defendants' motion for summary judgment.
On November 13, 2006, the Hilton Garden Inn in Owings Mills, Maryland suffered a fire and resulting damage of approximately $100,000 which plaintiff, Fireman's Fund Insurance Company paid pursuant to an insurance policy issued to Mangione Family Enterprises, the hotel owner.
As Mangione's subrogee, Fireman's Fund retained two certified fire investigators to determine the cause of the fire. After an investigation, the first expert concluded that the fire originated in the heat pump room and was caused by an undetermined failure or malfunction of the heat pump. Plaintiff's second expert, Kenneth McLauchlan, was retained to determine the exact cause of the hypothesized failure of the heat pump.
The chief building engineer reported that other heat pumps had malfunctioned and that the compressors had to be replaced regularly. McLauchlan concluded that the heat pump was the only plausible source of the fire and took possession of three heat pumps from the hotel, including, the "subject" heat pump that caused the fire, and two exemplar pumps (a working heat pump and a similarly damaged heat pump). McLauchlan examined and compared the three pumps and concluded that a manufacturing defect caused the compressor failure which caused the fire.
Defendants moved to exclude McLauchlan's testimony and the Court agreed. The Court concluded that under Daubert and its progeny, the methodology McLauchlan employed to reach his conclusions was unreliable. In particular, the Court held that NFPA 921, the generally accepted standards for fire investigation, instructs the investigator to collect data about the fire "by observation, experiment, or other direct . . . means, to analyze the data objectively and without speculation, to develop a hypothesis based solely on the data collected, to test the hypothesis by comparing it to all known facts, and to repeat the process until all feasible hypotheses have been tested. Until these steps are completed, NFPA 921 unambiguously requires an investigator to list the cause of the fire as undetermined."
The Court focused on the testing requirements under Daubert, noting that the failure to properly test a hypothesis is often grounds for excluding expert testimony. Also, the expert must rule out alternative hypotheses. Further, experts are required "to demonstrate that objects and materials are capable of behaving in the manner they hypothesize under the conditions of the event in question."
Even though McLauchlan's report had a section titled "Methodology", it failed to describe the tests utilized in forming his hypothesis. The Court found that McLauchlan had formed his hypotheses through speculation, merely relying on similar damage between the exemplar and subject heat pumps, having never tested his hypothesis, instead deriving his final hypothesis from his observations of the exemplar heat pumps, rather than testing it against them. The Court determined that McLauchlan's sample size of one being insufficient to rule out an otherwise plausible hypothesis. Also, McLauchlan failed to test and exclude a plausible alternative explanation for the fire. Consequently, in excluding McLauchlan's testimony, the Court held that McLauchlan did not meet the generally accepted standards of fire investigation set out in NFPA 921 and did not satisfy the requirements of testing and ruling out other hypotheses as required by Daubert and its progeny. Since Plaintiff's other expert relied upon McLauchlan's findings in formulating his opinions, the Plaintiff's were left without an expert to testify as to causation and the Court granted defendants' motion for summary judgment.
