*1 514
“(1) proceedings not in a further inconsistent with identical to one issue was (2) opinion. final adjudication; there was a prior merits; (3) estopped
judgment on the privity party party or with a
party awas (4) the adjudication; and es- prior given a full and fair party
topped adjudicated on the heard
opportunity issue.” WEISGRAM, individually and on Chad v. Commis- behalf the heirs of Bonnie Jo (quoting Willems at 1066-67 Weisgram, decedent, Appellee, 619, 621 Safety, Pub. 333 N.W.2d sioner of omitted)). (Minn.1983)(quotations prior In action the issue to be COMPANY, Corpo MARLEY a Delaware “necessary been precluded must have subsidiary, Marley Elec ration and its resulting judgment.” Hau essential Company, Heating a Delaware Cor tric (Minn. Medley, N.W.2d ser v. Industries, poration; Dominion United 1978). preclusion in Minnesota “must Issue Appel Corporation, a Delaware spec than mere upon rest a more solid basis lants. adjudicated actually ulation as to what was prior action.” Parker v. MVBA Harve Casualty Farm Fire & Insurance State (Minn.Ct. Sys., 491 store N.W.2d Company, Appellee, App.1992). for an ac Canal’s counterclaim standing counting was lack dismissed Marley Company, Corporation; a Delaware by so it never either the considered Company, Heating De- Electric judge in It would be the state case.4 Corporation; laware United Dominion speculation mere to conclude Industries, Inc., Corporation, a Delaware Valley whether court in that case decided Appellants. fees, livestock Pride owed direct certainly never had occasion to consider No. 97-3735. amount that have been owed. More Appeals, United Court of States over, by Valley any failure Pride to Eighth Circuit. pay from livestock fees could excuse Canal maintaining walkway is the cattle not the 16, 1998. Submitted Nov. of what same issue a determination 23, 1999. Decided Feb. fees, Valley any, if Pride amount direct owes it cannot be said that the Canal. Since Rehearing Suggestion Rehearing ever direct fee issue was decided En April Banc Denied 1999.* case, prior state court the issue merits precluded. is not
C. summary,
In conclude that neither the we preclu-
Rooker-Feldman doctrine nor issue presented
sion the claim Canal in this bar
case.
therefore reverse and remand for
brought
Donnkenny,
by Valley
preclu
on issue
now
in federal court.
The cases cited
Pride
Nadler,
(S.D.N.Y.
procedurally
F.Supp.
factually
Inc. v.
sion are
different
1989),
precluded
example,
that was "substan
claim
this case. For
brecht,
in Wanamaker v. Al
95-8061,
tively
to a counterclaim that
been
identical"
No.
Christine A. (James Hill, brief), appellants. on the S’. (Paul Dunn, Fargo, ND, argued Daniel J. Strandness, MN, brief), Wayzata, A. appellees. BRIGHT, BOWMAN, Judge, year-old baseboard manufactured Chief Before MAGILL, Marley had been mounted on that south wall Judges. Circuit the fire. There was structural BOWMAN, Judge. Chief the town damage around entrance of residence, in- house. remainder judg- Marley Company appeals from *3 entry- cluding area from the downstairs Court, upon a of the District entered ment smoke, heat, damage way, and suffered verdict, damages to awarding Chad water, damage. no fire individually Weisgram, and on behalf Weisgram, and to State heirs of Bonnie autopsy Weisgram An determined Casualty Company. We va- Fire and Farm inhalation, is, from smoke carbon died entry judgment remand for cate and poisoning, approximately 2:30 monoxide law favor. of judgment as matter of morning. dispute that the There is no Marley. likely was the source of the carbon monoxide Further, smoldering Weisgram’s blood sofa.
I. 0.15, evi- level was and there was alcohol drug gener- she had dence that taken 30, 1993, approximately On December pain as a ally prescribed relieve and a.m., firefighters called to town 6:00 were aid, sleep although clear from it was not Fargo, Weisgram of Bonnie North house night. whether she took it that She tests Dakota, off-duty firefighter when an noticed evening p.m. last seen alive at 11:00 was around the front entrance flames by fiancé, observed of December her who front of the residence home. The door was beverage smoke a her drink alcoholic closed), (although door was open the storm cigarette before left. notwithstanding sub-freezing outdoor temperature. Firefighters entered town son, Chad,1 individually Weisgram’s adult Weisgram’s body found house and Bonnie heirs, Weisgram’s on behalf of Bonnie top large, lying face down on of a broken Marley wrongful for death of his sued mirror, split- upstairs in the bathroom Farm, insured the mother. State open entry They also found an residence. home, Marley in- Weisgram to recover sued bedroom, Weisgram’s upstairs window paid damage surance benefits for adjoined body where bathroom contents, Weisgram and its town house The was found. cover of smoke detector damage (by assignment) paid for the benefits ceiling upstairs hallway in the located adjoining Ferguson town house. was found had been removed and cases were consolidated and tried to bedroom, carpeted Weisgram’s floor of where strictly Marley liable on a pro- laying it had been since was defective. because baseboard heater exposed ar- duced the soot that covered $500,000 jury awarded Chad folding chair was on the carpeting. eas of A $100,575.42 to Farm. Mar- heirs and State floor, up, cover. folded near the detector ley’s a matter of law motion room, L-shaped living in the Upstairs (JAML) and its for a new trial both motion by badly damaged fire in sectional sofa Marley appeals. were denied. one section of sections. The back of both open along railing that was a metal sofa was II. right entryway immediately to the (north) District review de novo the of the entrance at about shoulder We Marley’s entryway; deny decision to motion standing in the the Court’s level when Records, Inc., section, Finley equally damaged, along v. River N. other JAML. See (8th Cir.1998). (east) 913, 917 view adjoining upstairs. To the We wall left entrance, light favorable to directly in front of the south the evidence most Farm, wall, Weisgram and and will not a hole State there was burned Chad court’s unless all of entryway. the floor of A fifteen- reverse the decision living time of the night was not in the home at the 1. Chad was not at home the fire. who son, Ryan, adult Bonnie had another eration, “points properly properly [Mar- admitted the evidence admitted way susceptible ley’s] and is of no reasonable prove by preponderance insufficient to sustaining [Weisgram and inferences State heater was defective at the time position.” Wright v. Willamette In- Farm’s] it, any purported sold much less that (8th Cir.1996). dus., unreasonably dangerous rendered the heater proximately caused that resulted initially consider the tragic death of Bonnie proof products burden of in this strict liabili the damage to her McKnight home. See prevail ty order to North case. Controls, Inc., Johnson law, required the plaintiffs Dakota (“A Cir.1994) motion for pres- [JAML] prove a preponderance of the evidence legal ents a question to the district court design defective in “was *4 to this court review: ‘whether there is manufacture; prod defect rendered sufficient evidence to a ver- unreasonably dangerous consumer; uct ”) (citation omitted). quoted dict.’ to case product left the defect existed when judgment Thus is entitled to as a manufacturer; proxi defect a plaintiffs’ matter of law claims. [plaintiffs’] injuries.” mate cause En v. Sports Shop, dresen Scheels Hardware & 225,
Inc.,
(N.D.1997);
560 N.W.2d
229
see
III.
§
(Supp.
also N.D. Cent.Code
28-01.3-06
challenged
We first examine the
testi
1997) (“No product may be considered to
mony.
702,
Under Federal Rule of Evidence
in a
have a
or to
defective condi
be
“a
qualified
expert by
witness
as an
knowl
tion,
product
unless at the time the
was sold
skill,
edge,
experience,
training, or edu
seller,
by
manufacturer or other initial
opinion
if,
cation”
give
testimony
to
a
there was
defect or defective condition in
“scientific, technical,
extent,
spe
or other
product
product
made the
which
unrea
knowledge
cialized
will assist the trier
fact
sonably dangerous
to
user or consum
to
understand
evidence or to determine a
er.”).
hearing
argument,
After
oral
it is not
fact
It is the role of
issue.”
the district
entirely
plaintiffs
clear to us whether the
testimony
court to make certain that
admit
design defect,
alleging that the
had a
relevant,
only
ted under Rule 702 “is not
defect,
manufacturing
possibly
no defect
Pharm.,
reliable.” Daubert v. Merrell
any case, however,
Dow
at all.
we hold that
Inc.,
579, 589,
2786,
509
granted
U.S.
113 S.Ct.
125
Marley.2
JAML
have
should
been
(1993);
L.Ed.2d 469
see Wood v.
The District Court abused its
also
Minne
discretion
Co.,
allowing
Mfg.
306,
certain
&
opinion testimony
Mining
at trial.
sota
112 F.3d
309
(8th Cir.1997).3
testimony
below,
explain
por-
Once that
is removed
consid-
we
reject any
required
plaintiffs
opportunity
We
contention that we are
close case.
had
fair
prove
they
to
for a new
because
to
remand
trial
our failure to
their claim and
failed to
so.
do
deny
plaintiffs
opportunity
do so would
reopen discovery
identify
Supreme
pending
Now
additional wit
before the
Court
Carmichael,
might
who
to their
nesses
liabili
case of Kumho Tire Co. v.
97-
No.
1709,
7,
(Dec.
1998),
ty. Although
Federal Rule
Civil Procedure
vinyl
glue
linoleum
used
fire,
years
vinyl
prior
some fifteen
secure
Dolence’s
not surprising-
ly,
underflooring,
flammability
was the same as Freeman’s. Dolence
glue.5
While Freeman was
never went to the
town house.
trial,
thought
he testified at
he drew his conclusions
originated
largely
in the area of the baseboard heat-
observations Freeman made
*6
er, we think the
abused its
the
of
fire:
on
court
discretion
at
scene
“Based
the
the
permitted
away”
when
physical
it
Freeman to “run
examination
the heater and the
Captain
with
I
his own unsubstantiated theories:
evidence that
Freeman and
had
rug
heater,
photographs
blocked the
somehow
discussed and
which I inter-
evidence,
rug
ignited,
pret
physical
then
in
the heater
as
the hole
my
by
couple
transferred sufficient heat to the
so that
in
made
floor
floor
was
(an
flooring
things.”
at
adhesive
Id.
50-51. Dolence went
to
conjecture
rug
composition
pushed
adhesive whose
and other char-
that a small
was
over
unknown)
heater,
gassed,”
“off
acteristics
and
two-thirds of
the heat was
enough
“trapped
that the heater
so that
in
and
radiated
heat
there
was focused down
ignited.
linoleum,”
vapors
vapors
those
to the ...
that “volatile
were —
—whatever
qualification
investigator
Freeman’s
as
from the adhesive come
into the location
[sic]
heater,”
give
speculate
him
to
ignition
“[t]he
did not
free rein
and that
to
relying
vapors
as
those
is what
this fire.” Id. at
cause
caused
absolutely
theory?
on inferences that
no record
And Dolence’s
for his
have
51.
basis
support.
explanation. Everything
No foundation was established for
“There is no other
did,
by Captain
Freeman
extent
out ...
to
he
and
else
ruled
Freeman.”
allowing
in
testing
the court abused its discretion
Id. at 52. Dolence did no
to bolster
n theory
of no
to hear this
he knew
admitted
investigate
assigned
photographs
5.
As the individual
take some
to retrieve
fire,
Weisgram,
would have been re-
Freeman
burned
heater.
It is
his
baseboard
clear from
sponsible
taking samples
for
items
of these
for
very
testimony
beginning
from the
Freeman
Nevertheless,
analysis.
sought only samples
he
fire, see,
thought the
caused the
baseboard heater
of the burned
from the area around
burn-
20,
e.g.,
May
(testimony
Trial
of Dan
Tr.
(and
in
floor in the
Free-
77-78,
Freeman),
probably
E.
at
ex-
firefighter
man had another
retrieve those sam-
plains
he
State
the limited evidence
collected.
scene).
ples after Freeman left
had
Freeman
Farm,
scene,
early
did not
was
composition
samples tested
to see
these
either,
gather any
as far
can tell
evidence
as we
present.
whether there was an accelerant
only
from the record.
gathering
did
other
was
pre-
or
caused the
anyone
contacts
what
have
had conducted
tests that
origin.
high
theory
of fire cause and
sumed failure of the thermostat and the
similar
testimony,
id. at 171. As with Freeman’s
id. at
limit control. See
foundation
Do-
there was insufficient
circumstances, the District
In these
Court
testimony;
ostensibly expert opin-
lence’s
by permitting
its
Dolence
abused
discretion
specula-
rank
offered
ion
he
was
expert
regarding
witness
as
tion.
only speculate.
matters about which
could
oth-
noted that
“thermostat or
Dolence
testimony,
with Freeman’s
there is
components”
the heater were de-
er
opin-
factual basis for Dolence’s
reasonable
mass,”
stroyed,
crumpled
id. at
“in a
own
ions. Dolence’s
attests
not
them. He nevertheless
so he did
test
nothing
offering
than
fact that
was
more
theory
that his
of how
fire start-
conjecture
pure
or not the
heater,
gassing, ignition runaway
off
ed—
was
The testi-
defective.
only
vapors
if the thermostat
be true
—could
mony
Rule
therefore was unreliable under
at a comfort-
(designed to
the heater off
shut
702 and should have been excluded.
user)
by the
set
temperature
able room
failed,
immediately by the failure of
followed
C.
(designed
backup
limit control
tempera-
shut
heater off when sensed
metallurgist
Dolence contacted
90-92,
degrees.)
ture
See id. at
of 190
Sandy
Laza
Lazarowicz. Dolence told
Therefore,
years
after fifteen
opined,
him
of the fire and asked
rowicz
incident,
operating
both the thermo-
without
a look
Laza
take
at
heater.
suddenly
stat and the
limit control
rowicz examined the thermostat contacts
simultaneously
not function” to shut the
“did
heat
limit control contacts
To,
be “fair and
heater off.
at
components
er and
the same
studied
honest,” however,
compelled
Dolence
.an
Ferguson heater.
identify
testify that he
what caused
expert
properties
Admit
of metals.
away
that he
“no
to run
however,
tedly,
he was
in fire
to fail.” Id.
idea what caused the thermostat
opera
origin,
cause and
baseboard heater
126;
187. He
see also id.
also tion,
design
testing
could not determine what caused
May
Trial
such a unit. See
Tr. of
*7
limit
to fail. See id. at
187.
control
Lazarowicz),
16-17,
(testimony
Sandy
of
at
Finally,
agreed
proposition that
he
with the
heater, in
design
no
there were
defects
the
He testified that
thermostat contacts
because,
part
during testing, he could not
defectively designed
they
because
were
overheating episode in the
create a similar
rough
arcing
serrated. The
surfaces caused
Marley heater that had
undamaged exemplar
material transfer
contacts.
between the
adjoin-
been retrieved after the fire from
usage
He
that “the continual
theorized
ing Ferguson
house.
id. at
town
up of
of the
build
defects
the surface”
thought
possibility
143. He
there was
weld,
contacts must have caused them
Weisgram
manufacturing
defect
(at
pull apart
not then
least
could
heater,
identify
he
been unable to
but
had
until
from
fire in
home
not
the heat
145-46,
Upon
one.
examin-
See id.
weld).
said,
Thus,
softened
at 81.
ing the contacts6 of both the thermostat and
circuit,
there was
closed
the heater did
Weisgram
high
limit
heat-
control
off,
why
unit
shut
and that is
overheated.
er,
testified,
“I
Dolence
was bothered
knowing
theory
practically
He formulated his
things
I saw on some of
condition
heater,
any
nothing
or
sought
about
Id. at 100. Therefore
evidence.”
For
other baseboard heater for that matter.
metallurgist,
of a
but Dolence
assistance
opinions
example,
his
he was
opinion
no
of his own about the
when
could offer
formed
is,
closed,
through
touching,
unit is cut—when
contacts
When the contacts are
complete
open.
the circuit is
and current flows
separated, or
appliance.
The circuit is broken—current
wattage
properly
or the am- was not
sensing
temperature,
unaware of the heater’s
drew,
say
because,
course,
therefore
if
perage it
could
metallurgic
is not a
the thermostat contacts could have reached a
issue.
per-
Lazarowicz testified that he had
temperature
high enough
melt the metal
Ferguson
formed no
exemplar
tests
and to
the fire. See id. at
form a weld
if
high
proper-
see
its
limit switch
functioned
69-71,
performed
73. He
no tests
deter-
ly, or
if
to determine
in fact there was a
theoretically possi-
mine
was even
whether it
(in design)
in that similar heater. He
get sufficiently
ble
the contacts
did not
necessary experience
have the
—ei-
during operation
hot weld
heater.
ther
metallurgist
from
as a
his work
or from
fact,
deposition,
his first
Lazarowicz
performed
tests
in connection with this
say
was unable
for certain that the con-
case—to
as an
who could
welded,
actually
notwithstanding
tacts
had
high
limit control failed be-
of them
an
his examination
electron
defectively
cause it
designed
manufac-
Only
microscope.
after closer examination of
tured.
Ferguson exemplar
the contacts from the
opinions
Lazarowiez’s
amount to no more
welding
was he able
to see
evidence
“subjective
than
belief
unsupported specu
contacts. We think the Dis-
Daubert,
lation.”
while fact, (and, heater manufacture.8 Neither Freeman nor Do- other witnesses noted evidence). qualified the same But he no metallur- lence was under Rule 702 to defective, gic reason for his conclusion that the device that the heater was it was an argument, plaintiffs facturing simply identify. At oral counsel for said the that he not defect high limit was not and did control defective Lazarowicz testified the defects fail, simply but did not shut off the heater when design of the heater —the serrated contacts on us, then, it It should have. is not clear to what placement thermostat and theory plaintiffs’ liability now is. We limit control sensor —but he also said there was however, analysis, continue with our under the design control. limit These theory jury: products submitted to the lia- strict own contradictions from witnesses bility design manufacturing because of de- yet reached a another indication fect. finding only by heater was defective engaging speculation. 8. Dolence was not defec- tively designed, have had manu- that defects in the thermostat contacts Court’s discretion to of the District abuse (not placement con- limit control effect allow their experts The arrived at tributed the fire. speculation rampant about how mention their by personally inspecting their ignit- conclusions might then have “runaway” heater using ac- the evidence from scene fire). Further, testimo- Lazarowicz’s ed the Although cepted investigative techniques. ny defective thermostat about the expert may have testified on matters each placement limit control particular expertise, area of these outside his sufficiently under also reliable sensor weight the ad- matters went to the and not admitted in evidence. Rule 702 to have been Moreover, testimony. missibility only evi- offered the Because these witnesses experience experts’ lent to this testi- defect, testimony obviously their dence mony. jury’s deci- influence on the had a substantial Marley strictly for dam- liable sion to find Fire cases differ from most accident cases Weisgram’s in this ages. death fire Bonnie destroy tend to because fires damage to the town tragedy was a result, causation. As a theories about if But houses was unfortunate. inevitably rest circumstan- cause fires to have been defective proven cannot be cases, and insurance tial evidence. Arson it, then North Dako- Marley sold when one, product liability well as cases like this plaintiffs liability the products ta law of strict require evaluations to determine prevail assuming Freeman and cannot traditionally per- —even cause of fires. The courts gassing about the off Dolence are correct investigators qualified express mit theory relating the rest of their adhesive and opinions on the cause of fires. to the cause of the Without testimo- example, Talkington Atria Recla For issue, ny jury’s cannot stand. at verdict (Cricket BV), BV Fabrieken melucifers (4th Cir.1998), liability a product F.3d 254 IV. case, the court affirmed verdict for testimony of plaintiffs rested on the issues, a number of other all raises investigators investigators. two fire The fire unnecessary of which it for us address body prox of a in close discovered the child appeal. order to resolve imity lighter cigarette to a and a sofa. See plaintiffs’ motion relief under The They a test in id. at conducted Appellate Federal Procedure 38 for Rule of ignit compared a sofa sofa to by Marley on arguments certain advanced cigarette open and an ed with flame. address) is appeal (arguments we do not de- trial, investigators id. at 265. testi At nied. fied that the fire occurred because the child ignited lighter. cigarette with the sofa
V. upheld The See id. 264-65. court for the is vacated experts admission of this is remanded to District case investigators gave rea grant Marley Court with instructions to explanations rejecting alternative soned judgment as a matter of law. explanations, including the defense cigarette
that a started fire. See id. BRIGHT, Judge, dissenting. Circuit 264-66. Similarly, deny Marley’s Oil &
I I motions in Marshall Humble dissent. would *9 (8th Cir.1972), Co., 355 Refining for a new as a matter trial and of jury finding adequate support a law. The verdict has this court affirmed verdict testimony. explosion poorly in a properly expert defendants liable for an from admitted gas plain- The plaintiffs’ theory The of relied on ventilated station storeroom. the case explosion occurred properly of two tiffs contended investigators spark compressor a an air switch properly qualified and a metal- when from gas vapors. id. at lurgist. testimony provided ignited accumulated See This discovery originated the heater and 357-58. This rested on the fire with
523 fire, ing entryway. testi- on the side of of soot in the after the storeroom south saw no mony was other fire the house. After the storeroom door found search- ing removing immediately explosion, survivors Bonnie Weis- closed after the gram’s body, began investigate Freeman explosion See id. at the fact of the itself. fire. cause of the He first plaintiffs considered the court held that 358-60. This fire, sofa as a of source but discarded presented sufficient evidence causation that possibility inspected when he the sofa though compressor even switch itself surrounding area. The sofa exhibit- damage. at 359-60. showed no fire See id. signs ed smouldering but combustion case, required In flaming combustion. Freeman saw no char- cause of fire that determine the killed ring damage on the floor beneath the sofa Weisgram Bonnie in her home. Plaintiffs ceiling Furthermore, to the the sofa. above argued Farm and State a P/¿ piano within located feet of the sofa heater caused the baseboard good remained in As condition. Freeman must The court determine investigate, continued to he determined that plaintiffs presented reliable evidence them originated entryway the fire theory by possessed who experts neces spread to the sofa. The sofa suffered the 702, sary qualifications.9 Under Rule wit backside, damage most on its ex- expert knowledge ness can as an if his posed entryway, and there char- qualifies offer an him to will ring on the woodwork inches the back- arriving of fact in assist trier side of the sofa. Freeman that a testified 702; Ray, Pelster v. See Fed.R.Evid. truth. strong enough to char the woodwork Cir.1993). (8th 514, Rule 526 702 ignited could have the sofa. Freeman also attempt reflects liberalize rules flaming saw evidence of combustion in the governing expert testimony. the admission entryway. long A two-foot hole been Co., Eveleth 130 Jenson v. Taconite F.3d burned the floor underneath the “ (8th Cir.1997). rule ‘is 1298 The one ceiling heater and the above the heater had ” admissibility rather than exclusion.’ damage. significant suffered States, (quoting 929 Arcoren United F.2d plaintiffs Dolence, next Ralph called Cir.1991)). 1239 review dis investigator, professional fire as an qualifications trict court decisions expert witness. Dolence listened to Free- reliability experts for an abuse of discre description man’s the fire and in- scene Joiner, tion. See Elec. 522 General Co. v. spected photographs the heater and 136, 118 512, 517, U.S. L.Ed.2d S.Ct. 139 508 inspected fire scene. also and test- Dolence (1997). mind, I With this standard in review nearby exemplar ed an heater from a house. the district court’s decision to admit the testi originated Dolence testified with mony experts. opinion, rug the heater. In his throw Captain up against first heat pushed called Dan heater caused Fargo Department. accumulate in around Fire the heater.10 The person glue Freeman was the first to arrive at the excess heat caused the vaporize flooring fire scene. a fact Freeman testified as wit- beneath heater to expert. ignite. spread ness and extent to some as an Free- The fire to the walls and ceiling entryway eventually originated man testified that the fire arrival, entryway. living support Upon he saw a fire burn- sofa in the room. To chael,-U.S.-, answering question negative, 118 S.Ct. 141 L.Ed.2d Court, (1998), majority Supreme cites Daubert v. Merrell Pharmaceu now before the rais- Dow ticals, Inc., U.S. es the issue whether the factors enunciated in 113 S.Ct. (1993) admissibility recog L.Ed.2d also Daubert for the of scientific evi- apply dence analysis non-scientific evidence. nizes that Daubert for the admission testimony may apply scientific Maj. Op. frequent at 515 10. Three visitors to the home non-scientific n. 3. noted, majority has would fre- Carmichael Sa that an Tire, (11th Cir.1997), myang quently up against get pushed the heater *10 nom., granted cert. Co. v. door. sub Kumho Tire Carmi- movement of the 524 pat- subject. He
conclusions,
that burn
ten
book on
was well-
Dolence testified
qualified
give
opinion
it had been
his
that a malfunc-
terns
heater indicated that
to
during the fire and that it
partially
components
covered
in
electrical
of the heat-
tion
under-
exposed
extreme heat
had
to
fire.
been
er caused the
The district court did
asphalt-
also testified that
permitting
neath. Dolence
its
in
abuse
discretion
Freeman
vinyl flooring has
in
glue
testify.
based
used
to
and Dolence
approximately 450°.
ignition temperature of
possessed
quali-
Lazarowicz also
sufficient
testing
exemplar
Dolence’s
testify
fications
in
ther-
to
about defects
reach a
demonstrated
mostat
limit control.
contacts
temperature of 750°.
spe-
may not have
While Lazarowicz
been
expert,
third
called
their
se,
per
cialist in
he was a metallur-
heaters
Lazarowicz,
Sandy
metallurgist. Lazarow-
inspected
gical engineer and had
defective
analysis on
performed
icz
failure
had
years
part
electrical contacts for
as
inspected
had
contacts and
thermostat
employment.
him
qualifications
These
made
testimony
high limit control. Lazarowicz’s
testify
post-fire
competent
about the
con-
provided
in
thermo-
evidence of defects
of the
dition
thermostat
plácement
stat contacts
control,
in
limit
which were
essence electrical
limit
in their failure
control
resulted
contacts. The district court did not abuse its
of the fire.
shut down the heater at
time
permitting
testify.
in
him to
discretion
that the thermostat con-
Lazarowicz testified
Moreover,
plaintiffs’ experts
if
even
together
tacts
welded
the time
were
heaters,
specific expertise in
mat-
lacked
testified that serrations on the con-
weight
ter went to the
and not the admissi-
mismatching
tact
of the contacts
surfaces
bility
Arkwright
their
arcing and material trans-
caused electrical
Oil, Inc.,
v.
Mut. Ins. Co. Gwinner
125 F.3d
fer,
in turn caused the contacts to
(8th Cir.1997) (“
ba-
‘[T]he
1183
factual
also testified that
weld.11 Lazarowicz
credibility
expert opinion goes
of an
to the
sis
limit control did not detect
heat
testimony,
admissibility,
placed
build-up before the fire because it was
up
opposing party
examine
a deflector
behind
shield.
factual basis for
cross-exami-
possessed ample
Dolence
”) (quoting
Chicago
nation.’
v.
Hose
North-
qualifications
experts
(8th
Co.,
Transp.
F.3d
western
974
cause
fire. Freeman was a
certified
Cir.1995)); Sylla-Sawdon
Uniroyal
Good-
investigator
investigated over
and had
Cir.1995)
(8th
Co.,
rich Tire
completing
in addition
400 hours
fires
(“
that a
‘Once the trial court has determined
investigation.
training
and arson
competent
expert,
witness is
investigating fires for over
Dolence had been
challenges
expert’s
knowledge
skill
investiga-
years and
fifteen
had directed fire
go
weight
expert
accorded
municipalities.
nei-
tion units
two
While
”)
testimony
admissibility.’
rather than to its
nor
with
ther Freeman
Dolence had worked
(quoting
Dannenberg,
Fox v.
type
of heater found
Pro-Tec,
Cir.1990));
Williams
home,
experience
they
investigating
both had
(8th Cir.1990)
(holding
fires
and other electrical
caused
heaters
self-acknowledged
expert’s
that an
lack of
Thus,
my
appliances.
view
expertise
weight
medical
went to the
rather
opinions
to offer
whether the
admissibility
testimony).
than to the
of his
fire. Dolence
heater caused
majority opinion
possesses particularly
qualifications.
views
relevant
investigat-
plaintiffs’ experts
He is a master
who has
as unreliable. Cer-
electrician
tainly
must
ed number of
fires and has writ-
be reliable.
electrical
Moore,
tacts,
Phy,
something
experts
seen
even
11. Defense
Michael
Richard
had never
inspected
though
Acampora
and Vincent
thousands of contacts.
testified that
thermo-
witness,
Moore,
Marley’s
arcing
likewise
stat contacts showed evidence of electrical
own
Richard
1,000 contacts,
he had seen over
material transfer. Dolence testified
none
observed serrations on tire surface of
con-
with serrations.
*11
Maj. Op.
Reliability
originated
518.
in the
near the heater.
Freeman
See
partially
rug
under Rule
discovered
burned throw
near
context
this case
experts,
qualifications
frequent
the
Three
to the
hole.
visitors to the
relates
opinions,
their
rug
their
home testified that
throw
in
the foundation for
entryway
jury.
expert’s opinion
pushed
An
helpfulness
frequently
up
fundamentally
against
supported
if it
heater.
facts
be excluded
These
should
unsupported
rug
it can offer no
the determination
so that
assistance
that
the throw
up against
jury.
Arkwright,
pushed
125 F.3d at
See
heater and caused
experts
up
The
their
heat
based
to build
heater. Freeman and
personal inspection
rug
evi-
that
opinions on
Dolence knew
the throw
and the
knowledge acquired
glue
flooring
on
applying
flashpoints
used
dence
training
opinions
range
temperatures produced
Their
within
experience.
support.
knowledge
The
court
sup-
factual
district
baseboard heaters. This
rested
determining
ported
not
in
their
that
did
abuse its discretion
determination
the heat
ignited
rug
opinions
build-up
glue.
their
were reliable and could be
and the
throw
jury.
by the
Dolence knew the heater
not
considered
overheat
if the
limit
thermostat
control
personally inspected
ther
Lazarowiez
properly.
justified
functioned
This
his deter-
mostat contacts and
limit control.
parts
mination
those
to shut
failed
down
saw
that the surface
at the
time
prop
serrated and that the contacts did not
erly
light
plaintiffs’ theory
depend-
of his
connect. He concluded
The
of causation
knowledge
primarily
fea
ed
experience
these
circumstantial evidence.
earlier,
However,
by causing
the fire
as
tures contributed to
discussed
theories of
rely heavily
contacts to weld at the time of the fire. He
fire causation must
on circum-
enough
limit control was located
stantial evidence. There was
evi-
saw
determined,
a deflector shield. He
dence here for a
behind
reasonable
conclude
light
training
experi
originated
again
of relevant
that the fire
Freeman
and Do-
ence,
investigators
limit control had failed to lence
The fire
saw
testified.
entryway
down
shut
the heater because the deflector
other source of heat in the
other
prevented
detecting
shield
it from
the heat
than the heater and no combustibles were
build-up.
determining
such found
than
When
other
and the
support
jury’s
glue.12
did
sufficient
The district court
not err in
verdict,
submitting
jury.
the evidence must be viewed in the
the issue of causation to the
plaintiffs, giving
light most favorable
majority
regard.
errs in a second
Stock
them
benefit of all inferences. See
Maj.
at 517 n.
Op.
If
district court
Market,
men’s Livestock
Inc. v. Norwest
admitting
plain
erred
City,
Bank
Sioux
1240-41
experts, the relief
tiffs’
awarded is a
(8th Cir.1998).
Lazarowicz’s observations
trial,
a matter
new
of law.
placement
contact
features and
Broadcasting
In Midcontinent
Co. v. North
high limit
provided enough
control
factual
Airlines,
(8th
Inc.,
Central
continent
tion was not the court discussed cases.
either those two sum, presented parties two reason-
able theories about cause experienced judge and able trial admit- plaintiffs’ experts.
ted the permitted expert
He also witnesses to Marley’s theory A case. North
Dakota evaluated de-
termined that should recover court, only
damages. As a we called
upon to whether the district court determine permitting
abused its discretion ex-
perts testify. Had the rendered a Marley, we be in
verdict would not
position say that the district court abused admitting
its discretion in controversy experts. repre-
the defense This by jury. typical
sents a case to be decided ought
This court both the overturn trial
judge jury. Accordingly, I dissent. America, Appellee,
UNITED STATES Eugene ALDRICH, Appellant.
Kim America, Appellee,
United States of Aldrich, Eugene Appellant.
Kim 97-2835,
Nos. 98-2079. Appeals,
United States Court of
Eighth Circuit. Dec.
Submitted Feb.
Decided
Rehearing May Denied