When a Product Expert Has No Experience with Product Allegedly Causing Fire: A Recent Exclusion and Considerations

Toaster on fire

An Illinois federal district judge recently excluded certain testimony offered by a plaintiff’s expert in a product liability case. The ruling offers an opportunity to stay abreast of recent expert witness rulings and the viability of an argument routinely used by the defense — that the plaintiff’s expert lacks any experience with the specific product that allegedly caused the fire. Although a common argument, it can give rise to a number of case-specific considerations. The Case The recent case of Ostrinsky v. Black & Decker (U.S.), Inc., et. al, Case No. 15 C 1545 (N.D. IL, November 16, 2016) is instructive on this issue. In Ostrinksy, it was alleged that the decedent died when a toaster made by Black and Decker (B&D) allegedly failed to pop up bagel slices and ...
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Kentucky Judge Sets Aside Manslaughter Conviction in Deadly Trailer Fire Case After Finding it was Based on Unreliable Forensic Evidence

Some Fire line do not cross tape On December 28, 2016, Logan County Commonwealth Circuit Judge Tyler Gill granted Robert Yell a new trial and vacated his 2006 manslaughter conviction in a case involving a September 11, 2004 mobile home fire that resulted the death of Yell’s 2-year-old son. Although the conviction was upheld on two prior occasions, Yell was successful in contending that forensic evidence admitted at trial to prove that the fire had multiple points of origin was scientifically unreliable, thus denying him of due process. The evidence in question consisted of expert witness testimony that holes in the floor and irregular burn patterns on the wall of the structure indicated the use of an accelerant and the use of an accelerant-detecting dog that indicated the presence of an ignitable liquid at multiple locations in ...
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Eastern District of California Throws Out Civil Rights Lawsuit Against Modesto County Officials in Wrongful Conviction Case

http://www.dreamstime.com/stock-images-gavel-image21788164 On January 15,1997, a rental home in Modesto, California owned by George Souliotes burned down, killing tenant Michelle Jones and her two children. Authorities arrested Souliotes, charging him with three counts of homicide and one count of arson. At trial, fire investigators from the Modesto County Fire Department testified that the fire was caused by arson. They relied on several factors to support their conclusion: the fire being unusually hot; “pour patterns” on the floor where flammable liquids obviously had been poured and ignited; “deep charring” on the walls; insufficient fuel load in the house to sustain such an intense fire unless an ignitable liquid, i.e., an accelerant, had been added; a hand-held hydrocarbon detector indicated the presence of ignitable liquids at the scene; and an eyewitness testified that a ...
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Fifth Circuit Affirms District Court’s Exclusion of Opinions of Plaintiffs’ Expert Engineers Regarding Cause of Vehicle Fire and Defective Design of Fuel Tank

78397252 On October 5, 2016, the U.S. Court of Appeals for the Fifth Circuit held that opinions of the plaintiffs’ expert engineers regarding the cause of a vehicle fire and the defective design of the vehicle’s fuel tank were properly excluded. In Sims v. Kia Motors of Am., 2016 U.S. App. LEXIS 18116 (5th Cir. Tex. Oct. 5, 2016), Henry Sims, Sr. was a passenger in the backseat of a 2010 Kia Soul when it collided with another car in an intersection, spun out and collided with a yield sign. As the Soul continued forward, the immovable base of the sign passed beneath the front bumper and continued along the underside of the vehicle until it tore a large hole in the fuel tank causing gasoline to leak onto the roadway. ...
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Environmental Group Files Federal Lawsuit Seeking Invalidation of Emergency Firefighting Regulation and Review of U.S. Forest Service’s Firefighting Tactics After Agency Destroys Critical Wildlife Habitat to Fight Forest Fire

o inferno das chamas e o seu combate Forest Service Employees for Environmental Ethics (FSEEE) recently filed a lawsuit in the Eastern District of Washington against the U.S. Forest Service in response to the agency’s decision to cut 114 acres of timber and critical spotted owl habitat to fight a forest fire that ignited on June 29, 2015 in North Central Washington. Significantly, the fire never came close to the area cut by the Forest Service. In Case No. 2:16-cv-00293-TOR, FSEEE seeks to rescind a 2008 regulation invoked by the Forest Service while fighting the June 29, 2015 fire that permits the agency to suspend all environmental laws after declaring a state of emergency during fire suppression activities. The suit further demands that the Forest Service’s firefighting program be reviewed to assess the effectiveness of its tactics and ...
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Sixth Circuit Upholds Dismissal of Civil Rights Action Based Upon Wrongful Conviction in Arson/Murder Case

Judge Holding Documents In 1986, David Gavitt was sentenced to life in prison after a jury convicted him of arson and felony murder stemming from a fire that took the life of his wife and two daughters. In 2012, the state court granted Gavitt’s unopposed motion for relief from judgment due to newly discovered evidence based on advancements in fire science. The judgment was vacated, charges dismissed, and Gavitt was released from jail. Gavitt later brought a civil rights action against numerous city and county entities, prosecutors, police officers, and investigators that participated in the prosecution against him. He claimed the defendants intentionally misrepresented evidence and failed to disclose exculpatory evidence, thus violating his due process rights. All defendants moved to dismiss the pleadings and all but one of the motions were dismissed ...
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In a Split Decision, Seventh Circuit Affirms District Court’s Denial of Habeas Corpus in Arson/Murder Case

In 1993, Glenn Patrick Bradford, a then Evansville, Indiana police officer, was convicted of murder and arson and sentenced to 80 years in prison. Bradford filed a petition for habeas corpus in federal court, but the Southern District of Indiana denied review last November. In Bradford v. Brown, 2016 U.S. App. LEXIS 14260, the Seventh Circuit affirmed the district court’s denial of Bradford’s request. In a factually rich opinion, Judge Posner, joined by Judge Kanne, found that Bradford failed to present sufficient evidence to establish that he was innocent of arson and murder and that his original defense counsel was ineffective. Judge Hamilton dissented arguing that the state did not present enough evidence to demonstrate that Bradford set the fire that killed his ex-lover. Judge Hamilton further stated that defense counsel’s ...
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District Court in South Carolina Allows Parties’ Experts to Testify in Design Defect Case Involving Heater’s Ignition of Woman’s Clothing

531050703 On August 10, 2016, the District Court for the District of South Carolina ruled that experts retained by a woman who suffered severe burns after a propane heater ignited her clothing could testify under Federal Rule of Evidence 702, Federal Rule of Evidence 403 and the Daubert standard regarding the origin and cause of the fire, the defectiveness of the heater’s design, and how an alternative design would have prevented the incident. Likewise, the district court ruled that an expert retained by the defendant manufacturer and retailer to rebut the conclusions of the plaintiff’s experts could also testify. In Marshall v. Lowe’s Home Ctrs., LLC, 2016 U.S. Dist. LEXIS 105317 (D.S.C. Aug. 10, 2016), the plaintiff situated a “Thermoheat Propane Tank Top Construction Heater, Model No. TT15CL” near her workbench ...
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Cook County Prosecutors Agree Chicago Man Convicted of Arson in 1996 Should Get New Trial Due to Evolution in Fire Science

Two decades after Adam Gray was convicted of setting a fire that killed two people in Chicago’s Brighton Park neighborhood, Cook County prosecutors agree that he deserves a new trial because advancements in fire science have “partially invalidated” expert testimony crucial to his conviction. In Gray’s case, police and prosecutors alleged that in March of 1993 the then 14 year-old became angry with a girl who rejected him and retaliated by igniting an accelerant he poured on the back porch of the home where she resided. While the girl and her parents escaped the fire, two second-floor tenants died. At trial, prosecutors presented testimony from two fire investigators who stated that they discovered charring and deep burn patterns in the area of origin consistent with the use of an accelerant. ...
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Fire Chief’s Testimony Ruled Admissible in Arson Case Despite Concession He’s Unqualified to Determine Cause of All Fires

iStock_000001627771_Large A defendant sought to have his arson conviction overturned, arguing that the justice presiding at his trial committed a reversible error in permitting one of the state’s witnesses to give opinion testimony. In State v. Barnett (Case No. 1984 Me. LEXIS 784), the defendant claimed that a fire chief from the responding fire department should not have been permitted to testify that, while investigating the origin of a fire at the defendant’s home, he called in the state fire marshal’s office to assist because he thought the fire was “suspicious.” The defendant contended that the chief’s testimony contained an expert opinion and therefore violated the court’s earlier ruling that the chief was not competent to testify as an expert. Regarding his credentials, the fire chief testified that he served as ...
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