District Court in South Carolina Allows Parties’ Experts to Testify in Design Defect Case Involving Heater’s Ignition of Woman’s Clothing

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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 at her place of business and turned it on to warm the room. Approximately an hour and a half later, the plaintiff was walking in the area of her workbench when she heard a noise coming from the front of the store. She stopped for several seconds, turned around, and looked over her left shoulder, but seeing nothing, continued walking. Seconds later, she “smelled something burning,” “saw flames over [her] shoulders,” and realized her cotton clothing was on fire. As a result of the incident, the plaintiff suffered severe burns to approximately 40 percent of her body.

The plaintiff filed a products liability action against the heater’s manufacturer and retailer, alleging that the heater’s “guard” was defectively designed and caused her injuries. In support, the plaintiff identified several experts, including Brian R. Durig and Richard W. Henderson. Durig authored a report opining that the fire originated “above the burner assembly/front guard” of the heater and that the heater’s front guard design caused the incident by allowing the shirt worn by the plaintiff to come into contact with the heater’s elevated temperatures. Durig further concluded that an alternative design consisting of a “larger, oblong guard” would have prevented the incident. The defendants filed a motion to exclude arguing that Durig’s testimony regarding fire origin and cause should be excluded as prejudicial under Federal Rule of Evidence 403 because the opinions were based solely on information provided by the plaintiff, who had no specific recollection of the events leading to the accident. In rejecting this argument, the district court noted that the defendants’ position was incorrect as Durig’s endeavors in reaching his opinions, in addition to interviewing the plaintiff, included an examination of the fire scene, the heater, the plaintiff’s clothing and a review of the parties’ discovery responses and documents produced and relevant ANSI standards for gas-fired construction heaters.

The defendants further asserted that Durig’s opinions regarding the alternative guard design were unreliable because he: (1) admitted the alternative design might have to be modified; (2) was not familiar with national standards applicable to the heater; (3) failed to recognize that the alternative design failed to comply with safety and industry standards; and (4) did not opine that the heater’s original design was defective. The district court, however, determined that Durig’s opinions were sufficiently reliable to warrant admission at trial because he built a prototype model equipped with the alternative guard and also conducted testing to verify that the prototype was functional. Although Durig admitted that his prototype wasn’t designed to go into production, the district court found that it established the existence and functionality of a commercially feasible safer alternative design. Regarding the defendants other arguments, the district court noted that Durig was sufficiently familiar with applicable national standards and that he was not retained to offer testimony regarding the defectiveness of the heater’s design.

Expert Richard W. Henderson, on the other hand, was retained by the plaintiff to offer testimony that the heater was defective and unreasonably dangerous due to the design of its guard. In that regard, Henderson concluded that the heater’s guard failed to protect users from exposure to excessively high temperatures capable of igniting cotton clothing within a few seconds. Henderson also opined that the alternative guard design developed by Durig sufficiently protected users from exposure to the heater’s dangerous temperature levels. The defendants argued that Henderson was unqualified to testify and that his opinions should be excluded as unreliable and irrelevant because: (1) the alterative design failed to comply with applicable industry and safety standards; (2) Henderson was not familiar with relevant ANSI standards; and (3) Henderson admitted that the alternative guard design was not final and may have to be changed. In denying the defendants’ motion, the district court noted that Henderson, as a certified fire investigator who investigated fires for approximately 30 years, was indeed qualified to testify. Furthermore, the district court rejected the defendants arguments regarding the reliability and relevancy of Henderson’s opinions after determining that he properly relied on his own temperature testing as well as Durig’s data and conclusions regarding the alternate guard, which the court already found to be sufficiently reliable for admission. Specifically, the district court found Henderson’s testimony reliable and relevant because it: (1) would enable the jury to determine whether the plaintiff proved the allegedly defective guard could have ignited cotton fabric; and (2) would enable the plaintiff to establish her design defect claim using a risk-utility analysis by showing an alternative feasible design.

The defendants’ expert, Allen W. Dudden, authored a report opining that, even if the heater was equipped with the prototype alternative guard fabricated by plaintiff’s experts, the heater would still not pass clothing ignition tests under either ANSI or UL standards. The plaintiff filed a motion to exclude Dudden’s testimony arguing that he was unqualified and that his testimony should be excluded as unreliable under Federal Rule of Evidence 702 and Daubert because he relied on the incorrect ANSI standard in forming his opinions. In denying the motion, the district court held that Dudden, although not an licensed engineer, was qualified to testify as he had extensive experience working with various gas appliances, including radiant heaters. Moreover, the court found Dudden’s opinions sufficiently reliable and noted that the plaintiff would be permitted to cross-examine him about his application of the pertinent ANSI standards at trial.

 

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