Federal Judge Finds No Spoliation, Denies Daubert Challenge in Nutone Fan Case

Plaintiff (subrogating insurer) alleges that a fire occurred at the restroom of a gas station-convenience store in East Berne, New York due to a defect in a Nutone ceiling vent fan.  An eyewitness saw flames coming from the fan.  Plaintiff disclosed a fire origin and cause expert and an electrical expert, who concluded the fan motor had both a manufacturing and a design defect.  Plaintiff put Nutone on notice shortly after the fire and gave them an opportunity to view the scene during a joint evidence exam.  Plaintiff preserved the fan and other material from the bathroom, and defendant’s fire investigator made no request to preserve additional material from the scene.

Years later, Nutone disclosed its fire expert, who gave his opinion, for the first time, that the fire started in wiring in the bathroom ceiling, not in the fan/motor.  Nutone made a motion for summary judgment, claiming that this unspecified wiring should have been preserved, but was not.   The court rejected Nutone’s assertion of spoliation as “vague and undefined. ” [1]  The court found that plaintiff “took adequate measures to preserve relevant evidence,” and that they gave Nutone an opportunity to identify other evidence to preserve – “an opportunity which Nutone failed to avail itself of.”  The plaintiff was not under a duty to preserve everything from the fire scene, and defendant could not remain silent at the scene, only to spring a spoliation claim years later for failure to preserve something that plaintiff was never asked to preserve.

The Court also rejected defendant’s Daubert attempt to preclude plaitntiff’s fire and electrical experts.  The Court found that the experts’ opinions were relevant, were  based on a reliable methodology and were consistent with that methodology.  The fire investigation was done in accordance with the professional standards and scientific methodology used by fire investigation experts, as set forth in NFPA 921.  So far as plaintiff’s electrical expert, the Court was satisfied that he had investigated the relevant evidence, had performed a series of germane tests, and had based his opinions on reliable and generally accepted methodologies.

Bottom Line:  Spoliation and Daubert motions are the most common ways by which defendants seek to have property subrogation claims dismissed.  Proper scene preservation, prompt notification to adverse parties, preservation of evidence and the retention of competent experts who use reliable and tested methodologies are the means to defeat spoliation and Daubert motions.


[1] Selective v. Nutone, 2010 WL 3360127, *3 (NDNY August 25, 2010)

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