MARIA FERNANDA ELOSU, Individual; ROBERT LOUIS BRACE, Plaintiffs-Appellants, v. MIDDLEFORK RANCH INCORPORATED, an Idaho Corporation, Defendant-Appellee.
No. 21-35309
UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT
Filed February 23, 2022
D.C. No. 1:19-cv-00267-DCN; Argued and Submitted December 8, 2021 Pasadena, California; Before: Carlos T. Bea and Kenneth K. Lee, Circuit Judges, and Richard D. Bennett, District Judge; Opinion by Judge Bennett
OPINION
Appeal from the United States District Court for the District of Idaho David C. Nye, Chief District Judge, Presiding
*
Expert Testimony
The panel reversed the district court‘s partial grant of Middlefork Ranch Inc.‘s motion to exclude expert testimony and the subsequent entry of summary judgment in a diversity negligence action, and remanded for further proceedings.
Plaintiffs were the owners of a vacation cabin in Idaho that burned. An expert report prepared by fire investigator Michael Koster hypothesized that an open-flame pilot light ignited combustible vapors from an oil stain on a wooden deck and sparked the fire that burned the entire structure to the ground. The district court excluded Koster‘s testimony, finding that the substance of his opinion was speculative, uncertain and contradicted by multiple eyewitness accounts.
The panel held that the district court improperly assumed a factfinding role in this case. Although a court may screen an expert opinion for reliability, and may reject testimony that is wholly speculative, it may not weigh the expert‘s conclusions or assume a factfinding role. In the plain text of its opinion, the district court took issue only with the expert‘s ultimate conclusions. In its findings, the district court disregarded much of the expert‘s scientific analysis, weighed the evidence on record, and demanded corroboration factfinding steps that exceeded the court‘s gatekeeping role.
Patrick C. Bageant (argued), Hollystone Law, Boise, Idaho, for Plaintiffs-Appellants.
Gerald Kobluk (argued), KSB Litigation P.S., Spokane, Washington, for Defendant-Appellee.
OPINION
BENNETT, Circuit Judge:
On July 20, 2017, a fire swept through a cabin in the Idaho wilderness. Nobody was at home, and neither residents, neighbors, nor first responders saw the cabin catch fire. Appellants Maria Elosu and Robert Brace contend that the fire was caused by a negligent employee of Appellee Middlefork Ranch, Inc. (“Middlefork“), the homeowners’ association which governs the cabin. Their case rises and falls on an expert report prepared by fire investigator Michael Koster, who hypothesized that an open-flame pilot light on the northern end of the cabin ignited combustible vapors from an excessive oil stain that had been applied to the wooden deck the previous day—sparking a fast-moving conflagration that swept across the deck and burned the entire structure to the ground.
This appeal arises from an order of the United States District Court for the District of Idaho excluding Koster‘s testimony and precluding Appellants’ case on the critical element of causation, the sole triable issue that remained in this litigation. The district court did not hold that Koster‘s methodology was unreliable or that he was not qualified to render an expert opinion in the field of fire investigation.
District courts have a longstanding responsibility to screen expert testimony, and to prevent unfounded or unreliable opinions from contaminating a jury trial. See generally Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579, 586 (1993). However, this Court has cautioned that the district court is “a gatekeeper, not a fact finder.” Primiano v. Cook, 598 F.3d 558, 568 (9th Cir. 2010) (quoting United States v. Sandoval-Mendoza, 472 F.3d 645, 654 (9th Cir. 2006)). Although a district court may screen an expert opinion for reliability, and may reject testimony that is wholly speculative, it may not weigh the expert‘s conclusions or assume a factfinding role. We are compelled to find that the district court assumed such a role in this case. In the plain text of its opinion, the district court took issue only with Koster‘s “ultimate conclusions.” In its findings, the court disregarded much of the expert‘s scientific analysis, weighed the evidence on record, and demanded corroboration—factfinding steps that exceed the court‘s gatekeeping role. Accordingly, we reverse the judgment of
BACKGROUND
Maria Elosu and Robert Brace, husband and wife, were the owners and seasonal residents of Cabin 16, a luxury vacation cabin located in the remote Valley County, Idaho, and governed by Middlefork Ranch, Inc. Cabin 16 was a flat, one-story building with a 500-square-foot wooden deck that wrapped around the north, east, and south sides of the structure. The northern end of the deck featured a propane-fueled refrigerator atop an open-flame pilot light, with a propane supply provided and managed by Middlefork. The east side of the deck held various items of wooden furniture—an old sofa, a teak picnic table, and benches.2
On the day before the fire, Brace power-washed and stained the deck with Penofin-brand oil. Penofin oil is highly flammable: Penofin oil cans come with detailed disposal instructions and a warning label that specifically alerts the user to the potential for “spontaneous combustion.” Appellants’ chemical expert Douglas Byron concluded in his report that Penofin oil is approximately as incendiary as charcoal starter fluid—with a higher density than air and a tendency to self-heat. When properly applied, Penofin oil becomes dry to the touch after four hours, “serviceable” after twelve, and fully cured after four to seven days. Based on the application instructions, which dictate that one gallon should be used for every 300 square feet of application, a 500-
On July 20, 2017, Appellant Brace left Cabin 16 prior to 8:00 a.m. He claims that he noticed sticky spots on the wooden deck where the Penofin oil had failed to dry. Brace provided rags for Elosu and their child to clean the deck, instructing them to dispose of them in the fire pit.3 Elosu allegedly found the deck too sticky to clean. Thereafter, the parties concur that a Middlefork employee visited Cabin 16 to check the propane levels, determined that the propane was out or low, and elected to refill the propane and reignite the pilot light. The parties also acknowledge that this employee confirmed that the deck below the refrigerator was dry before he lit the pilot light. Appellants further claim that the deck remained sticky with oil, that “[Middlefork‘s] employee was standing in wet oil next to the refrigerator” when he lit the flame, and that Elosu expressed concern that the oil could ignite.
Around 4:00 p.m., while Elosu and her child were away, Cabin 16 caught fire. The first people to notice the fire were a group of contractors working on a neighboring cabin, including Kenny Pyle, Regee Rauch, and Greg Gamez. These contractors did not see the fire ignite and arrived well after the conflagration had spread. When they arrived, the eastern deck was filled with flames, localized specifically near the southeast corner. Rauch ran onto the north deck to
Each party‘s insurance company conducted initial examinations of the scene: Appellants’ insurer sent Shane Hargrove four days after the fire, while Middlefork‘s insurer sent Glen Johnson two months later. Hargrove and Johnson each investigated the scene individually, before conducting joint interviews of the eyewitnesses, each of whom confirmed that there had not been a fire on the north-facing deck when they arrived.4 Johnson concluded that the fire had originated on the southeast deck, and that it could have been caused by discarded oil-soaked rags or a mop head. But Johnson had no direct evidence of his theory, Hargrove characterized the fire site as a “black hole,” and neither could offer an opinion about the specific “source of ignition” that rose to the level of “more probable than not.”
Elosu and Brace retained three additional experts to examine the fire site: Michael Koster, a fire investigator, Richard Mumper, a mechanical engineer, and Douglas Byron, a chemist. Mumper evaluated the remains of the cabin and confirmed that there was no evidence of a mechanical breakdown or another point of ignition. Byron conducted a chemical analysis of Penofin oil in light of the weather conditions on the day of the fire, and confirmed that the Xylene vapors released by evaporating Penofin could
Michael Koster, a fire investigator employed by Reliant Investigations, Inc., was the only expert to offer a specific theory as to the cause and origin of the fire.5 Koster personally examined the remains of Cabin 16 on May 27, 2018, evaluating the cabin‘s wiring, structure, insulation, and propane system to rule out external issues.6 He retrieved several five-gallon buckets of Penofin oil from a shed on the property—one of which was half empty. He compared the scene on the ground to photos of the cabin taken before the fire to calculate “mass loss,” flame length, and rates of exposure—concluding that the north end of the cabin had seen “the most significant amount of mass loss.” He also spoke with Brace to confirm his story of events, and reviewed tapes of witness interviews from the previous investigations.
Koster reported his findings on January 10, 2020. In this report, Koster reviewed literature on volatile liquids and lumber fires, and applied professional standards governing fire and explosion investigations, see National Fire Protection Association, NFPA 921: Guide for Fire and
Koster reviewed Johnson‘s report, and opined that it had failed to comply with the NFPA 921 standards. Koster challenged Johnson‘s conclusion that the fire was caused by discarded rags or a mop head, as “no remnants of cotton fiber materials or rags were found... within his suspected area of origination.” In a subsequent deposition, Koster also noted that his opinion was consistent with the testimony of the eyewitnesses, as the fire may have spread to the southeast deck. Nevertheless, Koster also acknowledged that none of the witnesses had substantiated his theory that the fire had originated on the north side of the deck.
Appellants filed suit against Middlefork on July 11, 2019. Consistent with Koster‘s testimony, Appellants alleged that Middlefork‘s employee was negligent in lighting the pilot light despite the fire hazard posed by the cabin‘s oil-stained deck. The case was reassigned to the United States District Court for the Western District of Washington to alleviate the District of Idaho‘s heavy caseload. One year later, a District Judge in Washington denied the parties’ cross-motions for summary judgment and transferred the case back to the District of Idaho for trial. On October 23, 2020, Middlefork filed a Motion to Exclude Expert Testimony, challenging all three of Appellants’
This appeal followed.
STANDARD OF REVIEW
“We review evidentiary rulings for abuse of discretion and reverse if the exercise of discretion is both erroneous and prejudicial.” City of Pomona v. SQM N. Am. Corp., 750 F.3d 1036, 1043 (9th Cir. 2014) (citing Nev. Dep‘t of Corr. v. Greene, 648 F.3d 1014, 1018 (9th Cir. 2011)). This standard applies on appeal from a motion to exclude expert testimony. Kennedy v. Collagen Corp., 161 F.3d 1226, 1227 (9th Cir. 1998); Kumho Tire Co., Ltd. v. Carmichael, 526 U.S. 137, 152 (1999). The district court‘s underlying factual determinations are reviewed for clear error. United States v. Lukashov, 694 F.3d 1107, 1114 (9th Cir. 2012).
ANALYSIS
This case concerns the scope of a district court‘s discretion to exclude expert testimony that it deems unsupported by the record.
(1) the witness is sufficiently qualified as an expert by knowledge, skill, experience, training, or education; (2) the scientific, technical, or other specialized knowledge will help the trier of fact to understand the evidence or to determine a fact in issue; (3) the testimony is based on sufficient facts or data; (4) the testimony is the product of reliable principles and methods; and (5) the expert has reliably applied the relevant principles and methods to the facts of the case.
City of Pomona, 750 F.3d at 1043 (citing
This appeal brings the third element of
As construed in Daubert v. Merrell Dow Pharmaceuticals, Inc.,
Ultimately, “the test under Daubert is not the correctness of the expert‘s conclusions but the soundness of his methodology.” Daubert II, 43 F.3d at 1318. The court is “a gatekeeper, not a fact finder.” Primiano v. Cook, 598 F.3d 558, 568 (9th Cir. 2010) (quoting Sandoval-Mendoza, 472 F.3d at 654). Accordingly, “[t]he district court is not tasked with deciding whether the expert is right or wrong, just whether his testimony has substance such that it would be helpful to a jury.” Alaska Rent-A-Car, Inc., 738 F.3d at 969-70. If the proposed testimony meets the thresholds of relevance and reliability, its proponent is “entitled to have the jury decide upon [its] credibility, rather than the judge.”
An expert‘s specialized knowledge and experience can serve as the requisite “facts or data” on which they render an opinion. In Primiano v. Cook, a patient who had received an elbow replacement sued the manufacturer of her prosthesis, alleging that defects in the device‘s polyethylene components had caused joint problems that required several additional surgeries to correct. 598 F.3d at 562. The patient adduced testimony by Arnold-Peter Weiss, M.D., who opined that polyethylene prostheses normally last between five and fifteen years, and that it was unlikely plaintiff‘s joint issues were caused by “overuse, medical malpractice... or other factors external to the device.” Id. at 562-63. The district court granted the defendants’ motion to exclude this testimony under Daubert, observing that Dr. Weiss had failed to base his assumptions on an “objective source,” as he had neither examined the plaintiff personally nor cited any peer-reviewed publications that corroborated his opinion. Id. at 563, 567.
This Court reversed, holding that the district court‘s concerns spoke to weight, not reliability. Id. at 568. We placed particular emphasis on Dr. Weiss‘s experience and
Relatedly, the requirement of “sufficient facts or data” does not preclude an expert from making projections based on reliable methodology. In Alaska Rent-A-Car, Inc. v. Avis Budget Grp., Inc., featuring a breach of an exclusivity agreement by a nationwide rent-a-car chain, the plaintiff rental car company offered expert testimony to prove damages. 738 F.3d at 967. This testimony required the expert to “address a hypothetical world that never existed,” extrapolating market projections based on similarly situated rental companies to estimate the plaintiff‘s lost profits. Id. at 968. The defendant moved to exclude the expert‘s opinion as speculative, highlighting various market differences that undercut his conclusions. Id. at 968-69. Rejecting this assertion, the district court admitted this testimony, and we affirmed, observing that Avis had not challenged the expert‘s credentials, qualifications, or methodology—only the accuracy and credibility of his final projections. Id. at 970. Each of the defendant‘s countervailing considerations were appropriate matters for impeachment, not
Finally, while a court may reject wholly speculative or unfounded testimony, it abuses its discretion if it overlooks relevant data submitted as the foundation of an expert‘s remarks. In Kennedy v. Collagen Corp., the plaintiff sued the manufacturer of Zyderm, a facial smoothing product that required subcutaneous injections, alleging that its application had caused her to develop systemic lupus erythematosus (“SLE“), “a debilitating and incurable autoimmune disease.” 161 F.3d at 1227. The plaintiff offered testimony by Dr. Joseph Spindler, who opined that there was a link between Zyderm and SLE, relying on “peer-reviewed publications and clinical studies” that suggested Zyderm produced autoimmune antibodies. Id. at 1228. The district court excluded this testimony, noting that no epidemiological studies had confirmed a link between Zyderm and SLE, and that there was too great an “analytical gap” between the data presented in the case and the expert‘s conclusion. Id. at 1229-30. And we reversed, observing that “[t]he court did not consider all of the data relied upon by Dr. Spindler, namely, studies by the defendant and others finding that Zyderm can induce autoimmune reactions.” Id. at 1230. Accordingly, “the gap was of the district court‘s making.” Id.
The common thread running through these cases is that
This is consistent with the basic function of expert testimony: to help the trier of fact understand highly specialized issues that are not within common experience. See Kumho Tire, 526 U.S. at 148-49, 156-57. Experts working in specialized, scientific, and uncertain fields regularly “extrapolate from existing data” and generate novel hypotheses about complex issues. Joiner, 522 U.S. at 146. For this reason, “an expert is permitted wide latitude to offer opinions, including those that are not based on firsthand knowledge or observation.” Daubert, 509 U.S. at 592-93. The court‘s role is to determine “the scientific validity” of an expert‘s “principles and methodology,” not to determine whether their hypothesis is correct, or to evaluate whether it is corroborated by other evidence on the record. Id. at 594-95. That is for the litigants to argue, and for the jury to decide.
II. Evaluating Koster‘s Proposed Expert Testimony
Applying the principles articulated above, we must determine whether the district court‘s analysis of Koster‘s report exceeded the limited gatekeeping function contemplated by
The district judge did not question Koster‘s qualifications or the reliability of his methodology. Instead, the district court solely took issue with “his ultimate conclusions,” adopting Middlefork‘s contention that they were “speculative and unsupported by the evidence.” In its analysis of Koster‘s proposed testimony, the court found that only limited portions of his report were substantive, that the underlying facts were susceptible to competing interpretations, that he relied too heavily on the Appellants’ story of events, and that his conclusions conflicted with the testimony of the eyewitnesses. This analysis exceeds the district court‘s limited gatekeeping role in several important respects.
First, the district court overlooked much of the scientific analysis that formed the basis of Koster‘s testimony. The court concluded that only 20 to 25 pages of Koster‘s 145-page report were substantive in nature, distinguishing the
Second, throughout its opinion, the district court weighed the evidence and discredited Koster‘s “ultimate conclusions.” The court emphasized that Koster‘s theory was “directly contradicted by multiple eye-witness accounts” of the fire, as the contractors had seen a fire raging on the southeast deck, and Rauch had stepped onto the northern deck to attempt to alert the occupants of the cabin. The court took issue with Koster‘s reliance on Brace‘s “interested” testimony, noting that Brace had hired Koster to perform his analysis, and that Koster had made several important assumptions “without conducting any independent investigation.” And it weighed Koster‘s report against Johnson‘s, observing that Middlefork‘s expert had “based his conclusions on other independently verifiable facts and supporting evidence.” As Appellants note, this analysis “fixat[ed] on evidence not offered in support of [Koster‘s] opinion while simultaneously ignoring the evidence advanced on its behalf,” and exceeded the scope of the
As an initial matter, these factual conclusions appear to be clearly erroneous. See Lukashov, 694 F.3d at 1114. Contrary to the district court‘s contention that Koster did not conduct an “independent investigation,” Koster‘s report details his exhaustive personal examination of the fire scene, studying factors such as mass loss, wind flow, fire spread, and material heat release rates. His theory was also fully consistent with the eyewitness testimony. Although there was no fire on the northern deck when the contractors arrived, the court‘s singular focus on this fact misses the point of Koster‘s hypothesis: his theory was that an open-flame pilot light caused flammable vapors to ignite a sustained fire on the southeast deck before the first responders witnessed the fire. Cf. NFPA 921 § 19.3.1.5 (“Gases, vapors, and combustible dusts... can cause confusion about the location of the point of origin, because the point of ignition can be some distance away from where sustained fire starts in the structure or furnishings.“). Accordingly, it was clear error for the district court to construe Koster‘s testimony as incompatible with the statements of witnesses on the scene. Whether the first responders initially saw fire on the north deck is not dispositive, as they arrived after the fire had begun and did not witness the moment of ignition.
Given this logic, it is also notable that the court found Johnson‘s report admissible. Johnson theorized that the oil on the deck had spontaneously combusted due to discarded oil-soaked rags or an oil-soaked mop head. The district court distinguished these theories from Koster‘s by noting “that Johnson based his conclusions on other independently verifiable facts and supporting evidence.” But Middlefork
In any event, these concerns are matters for impeachment, not admissibility. In performing its gatekeeping function, a district court “is not tasked with deciding whether [Koster] is right or wrong, just whether his testimony has substance such that it would be helpful to a jury.” Alaska Rent-A-Car, Inc., 738 F.3d at 969-70. NFPA 921 instructs fire investigators to rely on the observations of witnesses and property owners when determining the origin and cause of a fire. See NFPA 921 §§ 18.3.3.14, 19.3.1.6, 19.3.3. Koster acted in accordance with this professional guideline when he relied on Brace‘s opinion, which was relevant to the central issue of the case: Brace applied the Penofin oil stain to the deck and was one of the last people to observe the deck before the cabin caught fire. It may well be that Koster relied too heavily on an “interested party,” that his report was not sufficiently corroborated, or that he was biased towards Appellants, financially or otherwise. As in Alaska Rent-A-Car, Inc., these countervailing concerns “go to the weight of the testimony and its credibility, not its admissibility.” 738 F.3d at 970; accord Primiano, 598 F.3d at 564 (“Shaky but admissible evidence is to be attacked by cross examination, contrary evidence, and attention to the burden of proof, not exclusion.“).
Quite simply, Koster is a fire investigator. The fact that his testimony relied on circumstantial evidence and inferences is neither unusual nor unexpected, as fires routinely destroy all evidence of their origins. “By the very nature of a fire, its cause must often be proven through a combination of common sense, circumstantial evidence and expert testimony.” Ricci v. Alt. Energy Inc., 211 F.3d 157, 162-63 (1st Cir. 2000) (quoting Minerals & Chems. Philipp Corp. v. S.S. Nat‘l Trader, 445 F.2d 831, 832 (2d Cir. 1971)); Hartley v. St. Paul Fire & Marine Ins. Co., 118 F. App‘x 914, 919 (6th Cir. 2004) (quoting same). Accordingly, fire investigation, no less than medicine, requires sound judgment in the face of uncertainty. Cf. Primiano, 598 F.3d at 566. An expert in either field must “use their knowledge and experience as a basis for weighing known factors along with the inevitable uncertainties.” Id.; Joiner, 522 U.S. at 146 (noting that experts regularly
It is undisputed that Koster was qualified as an expert in fire investigation, and that he applied broadly accepted scientific principles and professional standards to conduct his analysis. Koster is a Fire and Arson Investigator employed by Reliant Investigations, Inc., with multiple certifications and twenty-two years of experience in the field. He reached his conclusions by applying NFPA 921, which has been consistently accepted as a suitable foundation for fire investigation testimony. See Schlesinger v. United States, 898 F. Supp. 2d 489, 504 (E.D.N.Y. 2012) (collecting cases); McCoy v. Whirlpool Corp., 214 F.R.D. 646, 653 (D. Kan. 2003) (calling NFPA 921 “gold standard” for fire investigations). Those guidelines provide direct support for Koster‘s vapor fire theory. See, e.g., NFPA 921 § 19.1.3 (noting that vapor fires often ignite far from the location of the first sustained heavy fire and leave “no physical evidence of an ignition source” at the origin of the fire.). They also instruct fire investigators to rely on the precise kinds of circumstantial evidence that formed the basis of Koster‘s opinion. See, e.g., NFPA 921 § 18.1.2 (directing investigators to examine witness statements, fire patterns, arc mapping, and fire dynamics). Accordingly, “the gate could not be closed to this relevant opinion offered with sufficient foundation by one qualified to give it.” Primiano, 598 F.3d at 568.
We REVERSE the district court‘s partial grant of Middlefork‘s motion to exclude expert testimony and the subsequent consent entry of summary judgment, and REMAND this case to the United States District Court for the District of Idaho for further proceedings consistent with this opinion.