Expert Used to Deny Summary Judgment in Kitchen Fire

I think all lawyers are nominal conspiracy theorists. What else does the law school environment teach other than not to trust anyone at any time, and that most people – probably all – people are out to get you? At the risk of being untoward, but last month’s Godwin v. Electrolux Home Products, Inc., No. 2:09-0106, 2011 WL 1357691 (M.D. Tenn. Apr. 11, 2011) [PDF] makes you wonder what a plaintiff (or his subrogee) can pull out of his hat.

The crux of the case involves that perilous issue: expert testimony. The court, in assessing the admissibility of such testimony, ruled that the Plaintiff’s expert could testify as to the source of a fire based on burn patterns, and rightly so, as the expert was qualified and burn patterns are a reliable source of data to use in an house fire. Thus, Plaintiff’s expert’s testimony precluded summary judgment in favor of the defendant. But something seemed a little off in the facts.

Frances Godwin’s home is destroyed by a fire. There seems to be no dispute that the fire originated at the stove. However, the stories of the reason for the fire diverge. I assume that Godwin’s insurer brought the action as a subrogee, and that’s what makes this case particularly interesting. If Godwin burned down the house because of her own negligence, then the insurer is out the money paid for the claim. But if there is some chance that a product defect contributed to the fire, then the insurer can spread the misery around a bit. The plaintiff put forth a theory that the stove in the home was defective, but the defendant put forward these facts:

A dispute arises as to the timing of the fire alarm at Plaintiff’s residence. According to Plaintiff, the fire alarm occurred at approximately 5:35 p.m., to which two different fire departments responded. (Docket Entry Number 49, Plaintiff’s Responses to Defendant’s Statement of Material Facts at ¶ 2). The fire department report for the Cumberland County Fire Department reflects that the fire alarm sounded at 7:11 p.m., Jay Schienost, Plaintiff’s daughter, places the fire starting between 5:30 and 5:45 p.m.

Defendant cites the testimony of Jimmy Barnes, a volunteer firefighter for the Cumberland County Fire Department, who responded to the fire. Plaintiff allegedly stated that she had cooked dinner on the stove a couple of hours before the fire and had left some pots and pans on the stove top. Barnes testified that there were pots and pans on the top of the range, and that one of the stove’s top knobs had been left in the “on” position. The Cumberland County Fire Department concluded that the fire “started from something left unattended on the range.”

This seems like a pretty clear case of homeowner negligence. In a cunning move, the insurer hired a fire investigator, who attributed the fire to a defect in the Electrolux stove. (There was some testimony about the self-cleaning mechanism not working properly prior to the fire.) The plaintiff hired a mechanical engineer to opine on the cause of the fire, who stated that the fire was not caused by cooking. Summary judgment denied. In so many other cases, we see ill-qualified experts who cannot withstand Daubert. In this case, careful expert selection helped to create an issue fact resolvable only be a jury, and probably helped Godwin’s insurer recoup some of the loss on the home. Congratulations to Godwin’s insurer in using a slick litigation strategy to get past summary judgment. Whether or not the fire was caused by Godwin’s negligence, perhaps the insurer won’t bear the entire loss. Creation of fact seems to be a fine form of risk spreading.

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