Reliance on Unreliable Opinions Puts Fire Investigators’ Origin Theories on Ice

Fire Disaster in Warehouse

The Texas Supreme Court recently held that a trial court did not abuse its discretion by disregarding the testimony of two fire investigators who relied on the unreliable opinions of other witnesses to provide a complete factual foundation for their origin theories. In Gharda USA, Inc. et al. v. Control Solutions, Inc. et al., Cause No 12-0987, the plaintiffs filed suit alleging that a chemical manufactured and sold by the defendants contained a manufacturing defect that led to a warehouse fire and over $8 million in damages. Specifically, plaintiffs alleged the chemical chlorpyrifos was contaminated with ethylene dichloride (EDC) when sold and that this contamination led to a chemical reaction, a release of flammable gases into a hotbox holding the chemical and eventual ignition of the vapors through spontaneous combustion or static electricity.

In support of their ignition theory, the plaintiffs proffered the testimony of two fire investigators regarding fire origin. Harold “Buddy” Rice investigated the fire scene, observed burn patterns, documented fire damage and concluded that the fire originated in the hot box and that “there was a buildup of some sort of flammable vapors or something within – within that hotbox that caused the explosion and fire.” Salvador “Sammy” Russo examined the scene, conducted witness interviews, analyzed burn patterns and fire damage, and determined that the fire originated within the hotbox and that an ignitable vapor within the hotbox exploded, resulting in the fire. Neither Rice nor Russo were able to testify as to what the vapor was, its source, amount present, or what caused it to ignite and deferred to other experts to address these issues.

The plaintiffs retained two chemists to complete the origin theories offered by Rice and Russo and prove how the fire started in the hotbox. In that regard, Dr. Andrew Armstrong opined that EDC contamination of the chlorpyrifos resulted in exothermic decomposition and eventual ignition through spontaneous combustion or static electricity. Armstrong, however, completed no calculations, research, or tests to support his theory. Dr. Nicholas Cheremisinoff testified that it was “possible” that flaws in the defendant’s manufacturing process resulted in the EDC contamination, however, he admitted that there was no physical evidence to support his opinion.

At trial, the testimony of the plaintiffs’ four experts was admitted over the defendants’ objections. A jury found that the chlorpyrifos was defective, that the defect caused the fire and awarded the plaintiffs damages in the amount of $8,370,000. The defendants moved for judgment notwithstanding the verdict, arguing that the testimony of the plaintiffs’ experts was unreliable. The trial court agreed. However, the court of appeals reversed the decision, holding that the plaintiffs’ expert testimony was reliable and that there was sufficient evidence of negligence, manufacturing defect and causation.

The Texas Supreme Court reviewed the decision and held that the trial court did not abuse its discretion in excluding Cheremisinoff’s testimony as unreliable, as it was based only on possibilities, speculation, assumptions, and was untested. Similarly, the Supreme Court held that Armstrong’s testimony was properly rejected as unreliable as it was based only on mere possibilities and lacked supporting testing. The Supreme Court further held that the trial court properly disregarded the testimony of Rice and Russo that the fire originated at the hot box as the factual foundation for their testimony never materialized as it relied on the unreliable opinions of chemists Cheremisinoff and Armstrong. As the testimony of the plaintiffs’ four experts was properly excluded, the Supreme Court held that the plaintiffs could not prove fire cause and reinstated the trial court’s judgment that the plaintiffs take nothing.

The Supreme Court’s ruling demonstrates that an expert’s opinion is only as strong as the information relied on. With this in mind, attorneys must conduct a thorough investigation prior to disclosing and when evaluating expert testimony, including identifying all of the materials relied on by an expert witness in formulating his/her opinions and scrutinizing those materials to ensure that they are reliable and admissible. Attorneys who fail to complete these steps risk having testimony vital to their client’s case excluded in its entirety based on an expert’s reliance on unreliable information or, in the alternative, missing a valuable opportunity to challenge the opinions of an opposing party’s expert.

 

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