On June 21, 2022, a fire occurred at a residence in Perry Hall, Baltimore County, Maryland owned by Betina Fletcher (“the subject property”). Fletcher had a home insurance policy with USAA, which had been insuring the subject property for “about [seventeen] years.”
In 2019, Chase Remodeling, then known as Insulators Home Exteriors, installed new exterior ground fault circuit interrupter (“GFCI”) outlets on the subject property. Robert Chase, the company’s owner, testified that while his team changed the outlet receptable, they did not install new wiring. Chase also admitted that no electrician was present when installing the GFCI outlet.
The morning of the fire, Fletcher hired Jordan Kunkel, the owner and sole employee of Pro Rinse, to power wash the exterior of the subject property. Kunkel testified that he did not take any precautions before power washing the subject property, and despite knowing that most homes have exterior electrical outlets, he did not check whether the subject property had any exterior electrical outlets.
John Tobias, an electrical engineer hired by Defendant, concluded that the GFCI outlet had been incorrectly installed at the time of the fire, making it susceptible to the elements. Although the chlorine solution that Kunkel sprayed onto the subject property likely contributed to the ignition, Tobias opined that the fire would not have occurred had the outlet been properly installed, that the outlet had likely already been “subject to years of moisture intrusion” since its 2019 installation, and that it likely would have eventually caught fire on its own.
Plaintiff filed a motion to preclude the testimony of John Tobias.
Fire Investigation Expert Witness
John Tobias received his Ph.D. in Electrical Engineering from the New Jersey Institute of Technology in 2002, his M.Sc. in Electrical Engineering from the University of Maryland in 1992, and his B.Sc. in Physics from Seton Hall University in 1987. He is a Licensed Professional Engineer in the State of New Jersey, a Certified Designer/Inspector and executive board member with the Lightning Protection Institute, and a Certified Fire and Explosion Investigator with the National Association of Fire Investigators.
Discussion by the Court
Tobias made the following four conclusions in his report:
a. The subject exterior receptacle cannot be ruled out as the point of origin of the fire at the loss location.
b. The subject exterior receptacle was incorrectly installed, defeating the weatherproof properties of its cover and enclosure.
c. Correct installation of the exterior receptacle would prevented [sic] the fire.
d. Incorrect installation of the subject exterior receptacle defeated the fire/heat containment properties of it’s [sic] cover and electrical box assemblies.
Plaintiff argued that Tobias’ opinions should be excluded from trial because (1) his theories are based on the use of an incorrect exemplar outlet and (2) his opinions that the outlet cover was improperly installed and the outlet box was not installed at all are based on unreliable methods. Plaintiff further argued that Tobias’ opinion regarding whether the GFCI outlet failed to “trip” should not be admitted both because Defendant failed to disclose it in an expert report, as required by Fed. R. Civ. P. 26(a), and because it does not pass muster under Daubert. Finally, Plaintiff asserted that Tobias’ opinions, even if reliable, should not be admitted because they would confuse the jury.
Tobias’ Opinion Regarding Improperly Installed Outlet Cover
Tobias stated in his report that, after examining the burned remnants, he determined the GFCI outlet receptable to be a Hubbell TAYMAC cover. For purposes of testing, Tobias used a Hubbell TAYMAC MR420C model.
The Court held that there is no indication in the record that Tobias’ use of the MR420C rendered his methodology, based on established National Electrical Manufacturers Association (“NEMA”) standards, was unreliable. To the extent Tobias’ conclusions are less credible for having used a different model as an exemplar, the mismatch more properly goes to the weight of the evidence, and not whether it is admissible.
According to Tobias, a properly installed Hubbell TAYMAC cover is rated a “NEMA 3R enclosure ” and is thus “waterproof.” Tobias testified that his use of the term “waterproof” in his report should be more properly understood as “watertight.” Any bearing Tobias’ use of the term “waterproof” instead of “watertight” has on the validity of his conclusions is a matter for the trier of fact to decide; it is not grounds for exclusion.
The Court found Tobias’ opinion that the outlet cover was improperly installed to be based on reliable methods and principles. Also, the probative value of the challenged opinions is significant in that it tends to make it more probable that the proximate cause of the fire was not Pro Rinse’s power washing but rather faulty installation of the exterior outlet.
Tobias’ Opinion Regarding Absence of Electrical Box
In his report, Tobias determined that the at-issue GFCI outlet was not properly installed in an electrical box that would have contained a fire ignited within it. Plaintiff argues that Tobias should be precluded from testifying at trial that an electrical box was not installed because it is based on speculation and use of an incorrect exemplar. Plaintiff also contends that Tobias failed to test his theory that the fire would have been contained had there been an electrical box.
Tobias concluded that no electrical box was present because (1) there was no electrical box recovered from the fire and (2) an electrical box could not attach to the exemplar Hubbell TAYMAC MR420C cover using the type of long wood screws recovered from the fire. The Court finds that Tobias’ opinions adequately and reliably rule out the possibility that that any remains of an electronical box were either consumed by the fire or washed away in fire suppression efforts.
Finally, Plaintiff took issue with Tobias basing his opinions on testing of “an incorrectly identified exemplar receptacle.” But, as explained supra, Tobias nonetheless asserts that testing an exemplar of the same model as the at-issue GFCI outlet would not have changed his conclusions given the similarities between the two models. Tobias’ use of a different model goes to the weight of his testimony, not its admissibility.
Tobias’ GFCI Tripping Opinion
Defendant stated in its opposition brief that the GFCI outlet at issue in this case failed to “trip”—that is, cut power when moisture is detected and causes a short circuit. Plaintiff casts these statements as new opinions not previously disclosed in Tobias’s report or reflected in his deposition testimony and, on this basis, asks that they be excluded.
Upon review of Tobias’s new affidavit and his prior report and deposition testimony, the Court finds that his new statements regarding the GFCI outlet’s failure to trip to be related, to some extent, to opinions detailed in his report and discussed at his deposition. At the same time, references in Tobias’s affidavit to GFCI’s failure to trip and cut power upon detection of moisture or a short circuit do not appear in Tobias’s report. Although the Court agrees with Plaintiff that the disclosure of new expert opinions at this late stage would provide ample grounds for exclusion under Rule 37(c)(1), the question of whether and extent to which Tobias’s affidavit presents new opinions is not adequately briefed for this Court to grant relief.
The Court will deny Plaintiff’s pending motion but provide an opportunity for Plaintiff to file a separate motion under Fed. R. Civ. P. 37(c)(1) seeking exclusion of any opinions offered in Tobias’s affidavit that it contends were not timely disclosed.
Held
The Court denied Plaintiff’s motion to preclude the testimony of John Tobias.
Key Takeaway:
Even where an expert opinion or expert testimony is premised on sound methodology, the district court retains discretion to exclude it where its probative value is substantially outweighed by the risk of misleading or confusing the jury. Here, the probative value of the challenged opinions is significant in that it tends to make it more probable that the proximate cause of the fire was not Pro Rinse’s power washing but rather faulty installation of the exterior outlet. The Court does not find the probative value of Tobias’ testimony to be substantially outweighed by any risk of confusing or misleading the jury. Further, the Court does not find, under Fed. R. Evid. 403, that the probative value of Tobias’s opinions regarding the absence of an electrical box to be substantially outweighed by any risk of misleading or confusing the jury.
Case Details:
| Case Caption: | USAA Casualty Insurance Company V. Pro Rinse Power Wash, Llc |
| Docket Number: | 1:23cv291 |
| Court: | United States District Court, Maryland |
| Order Date: | September 16, 2024 |
Leave a Reply