Judge Rejects Defense’s Daubert Challenge to Subrogating Carrier’s Experts

Most of you have heard about the US Supreme Court’s 1993 Daubert decision[1] , in which the court set forth the criteria witnesses must meet before being allowed to testify as “experts” in federal court. [2]  Daubert is a new favorite of the defense bar in property subrogation litigation as it allows the defense to try to “win” a subrogation claim by getting the subrogating carrier’s expert barred from testifying – which oftentimes leads to the entire case getting dismissed and preventing a jury from considering the case.  Most courts have rejected Daubert challenges in fire subrogation matters, so long as plaintiff’s counsel submits sufficient proof that the expert is well-qualified in the field and used sound methodology (i.e., NFPA 921 or other relevant guidance).  It is incumbent upon Plaintiff’s counsel to fight such challenges vigorously, including drafting – in consultation with the expert – a detailed affidavit for the witness to lay out in detail his/her qualifications and the methodology used in performing the fire investigation or evidence exam.  In the few cases I’ve seen where courts have granted Daubert motions, it appears from the record that Plaintiff’s counsel did not submit sufficient proof to fight off the motion.   Usually, where the defense faults the subrogating carrier expert’s investigation, the court normally will deny the motion and allow the defense to raise their objections through cross-examination at trial.

A case last month from the federal court in the Southern District of New York is a good example of a court denying a Daubert motion in a fire subrogation case. [3]  A fire occurred September 1, 2010 and spread to a neighboring building in Mount Vernon, New York.  The carriers for the two properties paid and both brought suit against The Holmes Group, claiming the fire was caused by a defective bedroom fan.  The two cases were consolidated.  The court concluded that both of Plaintiffs’ experts (a fire investigator and a failure analysis engineer) were well-qualified and used sound methodology, and thus denied defendant’s Daubert motion.  [4]

The fire investigator issued an initial report stating that the cause of the fire was undetermined.  However, following discovery, he issued a supplemental report citing the fan as the origin.  Defendant tried unsuccessfully to argue that this fire investigator failed to “test” his theory (i.e., show that this model fan in fact could have failed and caused a fire and left similar burn patterns, etc.).   The court rejected this, finding that testing “is not an absolute requirement.”   Experts may be allowed to testify even if they have not “tested” their theories, if their theories “are otherwise based on reliable scientific methods.”  Nor did the court fault this fire expert for issuing a supplemental report which changed his conclusion.  The court noted that the homeowner gave detailed deposition testimony in which she stated she saw flames coming from the fan and that nothing else was on fire.  Based on his review of this testimony, the court found the fact the fire investigator changed his conclusion did not “render his opinion unreliable.”

Similarly, the Court denied defendant’s challenge to Plaintiff’s electrical failure engineer.  Though this engineer did not perform a “test” on an exemplar fan, the court was satisfied that he used reliable scientific methods and thus “his failure to test is not a valid ground for excluding his testimony.”   Defendant faulted this expert for not examining an air conditioner that was in the room.  The Court disagreed, finding there was no reason for the air conditioner to be tested, given that it was ruled out based upon the homeowner’s testimony that only the fan was on fire and nothing else in the room was.

The Court further denied defendant’s motion for summary judgment for theories based on strict liability and negligence.  Plaintiff had agreed that their breach of warranty claim was untimely and thus that cause of action was dismissed.

Bottom Line:  Where an expert issues a report close in time to the fire, it would be helpful if this report is marked “preliminary” and the expert states that the investigation is “ongoing” and that the conclusion contained in the report is “subject to change following receipt of further information.”  A favorite defense cross-examination technique is to try to show that an expert “rushed to judgment” before all facts were in and before any discovery was conducted.  By stating an early report is “preliminary” it may assist in fighting a Daubert challenge by showing the expert had not yet conclusively determined the cause and was waiting for more information, and possibly testing, to be done.   While it is always a good idea to have your failure analysis expert perform a test on an exemplar, such testing is not mandatory, so long as your expert otherwise uses “reliable scientific methods.”   Daubert motions, though routinely denied, must be taken seriously, and Plaintiff’s counsel must fight them vigorously through affidavits by the attorney and expert. 

[1] Daubert v. Merrill Dow, 509 US 579 (1993)
[2] Daubert was codified at Federal Rules of Evidence 702 which set forth the criteria courts are to consider in deciding whether or not to allow an expert to testify.   However, most courts and commentaries refer generally to these type of defense motions as “Daubert challenges.”
[3]Nationwide Mut. Fire Ins. Co. v. Sunbeam, 2014 US Dist. LEXIS 109235 (SDNY 7/17/14)
[4] I will not name the two experts involved, but I am familiar with both and can state that both are well-qualified seasoned veterans in their fields of fire investigation and failure analysis.