District Court Allows Expert Testimony Attributing Cause of a House Fire to Careless Smoking

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On May 20, 2016, the Eastern District of Pennsylvania ruled that an insurer’s fire expert could testify regarding a tenant’s smoking being the cause of a residential fire under Federal Rule of Evidence 702 and the Daubert standard. In Allstate Ins. Co. v. Anderson, No. 15-2651, 2016 U.S. Dist. LEXIS 66481 (E.D. Pa. May 20, 2016), the defendant tenant stated that he smoked a cigarette in the basement bedroom of a residence insured by Allstate and placed it in a can on a table near the foot of the bed the morning of the fire. A baseboard heater was operating in the area of the bed during this time. The tenant then left the residence to go to a corner store, returned his bedroom, and then went upstairs to eat breakfast. After eating breakfast, the tenant returned to the bedroom and discovered the fire.

Allstate’s expert David B. Klitsch authored a report stating that the fire was caused by careless smoking, which resulted in the ignition of combustibles that were located at or near floor level along the bedroom’s west wall between the baseboard heater and the bed. In reaching this opinion, Klitsch conducted an examination of the fire scene, took measurements and examined the baseboard heater and other electrical items located in the bedroom. He also reviewed deposition testimony, the tenant’s disclosures and answers to interrogatories, various fire investigation publications, and an ignition handbook that listed the materials first ignited in residential fires caused by cigarettes. Lastly, Klitsch summarized his interviews with witnesses, listed the ignition sources he considered and explained his reasons for eliminating each source except for smoking materials.

The defendant tenant asserted that the cause of the fire was undetermined and argued that Klitsch’s opinion regarding fire cause was unreliable as he failed to collect sufficient data and apply reliable principles or methodology in reaching his opinion as required under Federal Rule of Evidence 702. Specifically, the tenant argued that Klitsch failed to: (1) collect data to support his hypothesis that careless smoking caused the fire; (2) properly consider the baseboard heater as an ignition source; and (3) resolve inconsistent data by accepting the tenant’s contention that he was smoking shortly before the fire but rejecting his statement that he disposed of the cigarette in a soda can. The tenant also argued that Klitsch failed to test his own proposed ignition scenario and that he eliminated the baseboard heater as a possible ignition source without conducting a thorough examination of the unit and its components.

The district court found Klitsch’s collection of data sufficient, and his testimony reliable and admissible. In that regard, the court noted that Klitsch used an acceptable methodology in opining that careless smoking caused the fire and that the tenant would be able to challenge any claimed weaknesses with the facts relied on by Klitsch on cross-examination. Regarding the expert’s failure to test his ignition scenario, the court held that Klitsch’s process of elimination and reliance on the tenant’s admission of smoking shortly before the fire sufficient to support his conclusion. Next, the court found that the fact that Klitsch could have conducted a more thorough examination of the baseboard heater an issue that goes to the weight the jury gives his opinion, and may be challenged through vigorous cross-examination. Lastly, the court determined that any inconsistencies in Klitsch’s opinions and his reliance on only part of the tenant’s testimony to be relevant to his credibility, not the reliability of his methodology, and, therefore, issues that may be highlighted during cross-examination.


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