Opinion by
Defendant, Chief Industries, Inc., appeals the judgment entered upon a jury verdict in favor of plaintiff, Farmland Mutual Insurance Companies, finding Chief was negligent in the manufacturing of a crop drying heater which caused a fire. We affirm.
Farmland's insured, Onion Growers, Inc., operated a erop storage and drying facility and hired a contractor to install a erop drying heater manufactured by Chief. In September 2008, a fire occurred at the facility, causing extensive damage. Farmland paid Onion Growers $617,625.77 pursuant to its insurance policy and filed suit for subrogation against Chief and the installer (not a party to this appeal), alleging the drying unit was negligently designed, manufactured, and installed.
In support of its claims, Farmland introduced the testimony of four expert witnesses, including Toby Nelson, a forensic mechanical engineer. Chief objected to Nelson's testimony, arguing it was not reliable. After a midtrial hearing pursuant to People v. Shreck,
Nelson testified that the fire would not have occurred if a fuel line strainer to prevent debris buildup had been installed in the dryer. Because there was no strainer, according to Nelson, debris prevented a gas shutoff valve from closing completely, there
He found debris in a mesh sereen and part of the fuel line. Although Nelson did not find any debris in the portion of the fuel line that would have obstructed the valve, he postulated that any debris was likely expelled when the fire department and gas company energized the system during their respective investigations.
He further testified that Chief always installed a strainer in a propane model of the same drying unit, that Chief had included two valves in prior models of the natural gas drying unit, and that, in his opinion, Chief should have included a strainer before shipping the drying unit because the manufacturer was in the best position to prevent accidents and to protect life and property.
Farmland also presented evidence that Chief's instruction manual accompanying the heater advised that an installer should acquire and attach a strainer. Chief presented evidence that it did not include a strainer in the manufacturing of the natural gas dryer because the strainer required was dependent on which of four sizes of intake valve was used.
At the conclusion of trial, a jury found Chief was negligent and Farmland's insured was comparatively at fault, allocating 57.5% fault to Chief and 42.5% fault to Farmland's insured. Based upon stipulated damages of $617,625.77, the trial court awarded Farmland $855,134.81.
I. Expert Witness Testimony
Chief argues the trial court abused its discretion in admitting the expert witness testimony of Nelson because it was not reliable in that (1) his testimony was not based upon reliable scientific principles and (2) he had never worked in the crop drying industry and therefore was not qualified to testify as to the standard of care of a crop dryer manufacturer. We disagree.
Trial courts are vested with broad discretion to determine the admissibility of expert testimony, and the exercise of that discretion will not be overturned unless manifestly erroneous. People v. Martinez,
Pursuant to CRE 702;
If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise.
For expert testimony to be admissible under CRE 702, it must be both reliable and relevant. People v. Ramirez,
A. Scientific Method
Chief asserts Nelson's methodology was not reasonably reliable because (1) he used a process of elimination to determine the cause of the fire and this was not a reliable scientific method; (2) his opinion was not supported by any evidence; and (8) he did not confirm his conclusions through testing. We disagree.
Expert witness testimony must be grounded in "the methods and procedures of science rather than subjective belief or unsupported speculation." Ramirez,
1. Process of Elimination
Chief contends the process of elimination is not a reliable scientific method. We are not persuaded.
The vast majority of courts that have addressed the issue have concluded that the process of elimination can be a reliable scientific method. For example, in Bitler v. A.O. Smith Corp.,
Although the federal district court in Stibbs v. Mapco, Inc.,
Furthermore, a number of courts have held that the Guide for Fire and Explosion Investigations published by the National Fire Protection Association (NFPA 921), relied on by both Nelson and Chiefs experts, is an accepted reference for fire investigators. See Fireman's Fund Ins. Co. v. Canon U.S.A., Inc.,
Pursuant to NFPA 921, the process of elimination is an acceptable investigative technique:
Process of Elimination. Any determination of fire cause should be based on evidence rather than on the absence of evidence; however, when the origin of a fire is clearly defined, it is occasionally possible to make a credible determination regarding the cause of the fire, even when there is no physical evidence of that cause available. This finding may be accomplished through the credible elimination of all other potential causes, provided that the remaining cause is consistent with all the known facts.
Therefore, not only have the vast majority of courts addressing the issue accepted the process of elimination as a reliable scientific methodology, NFPA 921 relied on by both parties explicitly accepts it as well. In addition, other courts have approved use of the process of elimination in fire causation cases based upon the NFPA standards. See United States v. Santiago,
An electrical engineering expert tested the electrical power system and safety switches. He testified that the electrical wiring did not fail and that the facility's lights were off when the fire occurred. He also identified the fan room as the source of the fire and the burner as the likely source of ignition.
Nelson considered the other experts' opinions in performing his investigation. He discovered debris on a mesh sereen and in part of the fuel line. He tested the gas control valve, determined it worked properly, and therefore ruled out the design of the valve as a cause of the fire. He noted that the post-fire energizing of the system by the fire department and gas company could have expelled any debris that might have prevented proper closure of the valve.
Based upon all this evidence, and ruling out causes such as arson, the electrical system, and the valve design, Nelson determined that the presence of debris on the valve resulting from the lack of a strainer likely caused the fire.
We conclude he properly used a process of elimination to determine the cause of the fire.
2. Sufficiency of the Evidence
Chief also asserts that because Nelson did not find any debris that could have obstructed the shutoff valve in the fuel line, his testimony failed to prove the cause of the fire by a preponderance of the evidence. Insofar as this argument questions the sufficiency of the evidence, it is irrelevant to a determination of the admissibility of Nelson's expert testimony. See Ramirez,
8. Need for Experimental Testing
Finally, in admitting Nelson's testimony, the trial court acknowledged that the evidence might have been stronger if Nelson had conducted experimental testing. However, we agree with the trial court that the process of elimination was sufficiently reliable to admit the testimony. Testing was not a prerequisite to admissibility. See Shreck,
We conclude, therefore, that the scientific methodology employed by Nelson was sufficiently reliable to permit his testimony to be admitted.
B. Qualifications
Chief argues that Nelson was not qualified to testify as to the standard of care appropriate to the crop drying industry because he had never worked for a crop dryer manufacturer and was not a design engineer. Again, we disagree.
A witness may be qualified by virtue of knowledge, skill, experience, training, or education. Huntoon v. TCI Cablevision, Inc.,
Nelson has bachelors and masters degrees in mechanical engineering and testified that he had worked in the area of forensic mechanical engineering for twenty years. He
[I]f there [are] some safety features that should have been there or that were there and did not work, or other design problems, then it's up to the forensic engineer to point this out. Or if there [are] code violations that may have played a role, it's important to point those out.
Chief did not challenge Nelson's testimony to this effect. Further, Chief acknowledged Nelson's expertise in the area of fire causation and origin. Although Nelson had not worked for a manufacturer in the crop drying industry, he had extensive knowledge of mechanical engineering, including the natural gas shutoff valve that he testified likely caused the fire here. Under these circumstances, it was not manifestly erroneous for the trial court to determine that Nelson's testimony would be helpful to the jury, and, therefore, the trial court did not abuse its discretion in allowing him to testify as an expert as to the standard of care in the crop drying industry.
Chief further argues that Nelson testified as to an improper standard of care as to design defects. We disagree.
Chief contends that (1) a design is not defective unless "the magnitude of the danger outweighs the utility of the design," see Camacho v. Honda Motor Co.,
Although the source of a standard of care may be a statute or case law, expert witness testimony is generally used to supplement the jury's understanding of the standard of care. United Blood Servs. v. Quintana,
Here, Chief had an opportunity to cross-examine Nelson as to his understanding of the proper standard of care. See Shreck,
II. Directed Verdict
Chief next asserts the trial court erred in denying its motion for a directed verdict because Nelson's testimony did not establish that Chiefs failure to include a strainer or shutoff valve in its design caused the facility fire. We disagree.
We review de novo a court's ruling on a motion for directed verdict, viewing the evidence in the light most favorable to the nonmoving party. Brossia v. Rick Constr., L.T.D. Liab. Co.,
Here, Farmland's experts testified that the fire was not set intentionally, that the fire originated in the fan room, and that the fire was ignited by the burner in the crop dryer. Based in part on this testimony, Nelson testified that there was debris upstream from the valve, that certain debris may have prevented the shutoff valve from closing properly, and that, if this were the case, the burner flame would have caused the fire. He also testified that it was the manufacturer's responsibility to include safety equipment in its designs, that Chief had, in fact, included two valves in prior designs, and that it still included a strainer in its propane gas dryer model.
Viewing this evidence in the light most favorable to Farmland, there was sufficient evidence to present the case to the jury, and the trial court did not err in denying Chief's motion for a directed verdict. |
We also reject Chiefs contention that, as a matter of law, it had a right to expect that the professional installer would heed its warnings and instructions concerning the installation of a strainer, and that the installer's failure to do so is the proximate cause of Farmland's damages.
In making this argument, Chief relies on Uptain v. Huntington Lab, Inc.,
Contrary to Chiefs contention, we conclude that the trial court did not err in denying a directed verdict in its favor based on Uptain.
III. Intervening Cause
Chief contends the trial court erred in denying its motion for judgment notwithstanding the verdict because Chiefs failure to include a strainer in the produce dryer was not the proximate cause of the fire. It asserts Onion Growers' and the installer's failure to install a strainer as provided by its instruction manual was an intervening cause, precluding Chiefs liability. We conclude that Chief waived this issue by failing to raise it in the trial court.
Questions of negligence and proximate cause are issues of fact to be determined by the jury, and we are bound by the jury's findings when there is competent evidence in the record supporting those findings. City of Aurora v. Loveless,
Here, as we noted in part II, there was sufficient evidence that Chief was negligent in failing to include a strainer in its dryer unit. In addition, the jury was instructed on negligence, causation, and comparative fault.
As proposed by Chief, the instructions included a pattern jury instruction for causation which stated in part:
If more than one act or failure to act contributed to the claimed injury, then each act or failure to act may have been a cause of the injury. A cause does not have to be the only cause or the last or nearest cause. -It is enough if the act or failure to act joins in a natural and probable way with some other act or failure to act to cause some or all of the claimed injury.
CJI-Civ. 4th 9:20 (1998). Chief did not request that the optional intervening cause jury instruction be given to the jury. That instruction states:
One's conduct is not a cause of another's injuries, however, if, in order to bring about such injuries, it was necessary that his or her conduct combine or join with an intervening cause that also contributed to cause the injuries. An intervening cause is a cause that would not have been reasonably foreseen by a reasonably careful person under the same or similar cireum-stances.
Id.
Insofar as Chief now claims that Onion Grower's and the installer's failure to follow the instruction manual and attach a strainer was an intervening cause of the fire, Chief waived this error by failing to request an instruction as to intervening cause. See Silverview at Overlook, LLC v. Overlook at Mt. Crested Butte Ltd.,
The judgment is affirmed.