How to exclude expert testimony in Minnesota federal court.

CIC Partners, Civil No. 09-3274 (SRN/SER)
Sunbeam Products, Inc., d/b/a
Jarden Consumer Solutions,
SUSAN RICHARD NELSON, United States District Judge
This matter is before the Court on Defendant’s Motion to Exclude Expert Testimony and
Opinions of Ronald C. Rahman [Doc. No. 23]; Defendant’s Motion to Exclude Expert
Testimony and Opinions of Paul W. Hansen [Doc. No. 27]; and Defendant’s Motion for
Summary Judgment [Doc. No. 33]. For the reasons set forth herein, Defendant’s motions are
denied in part, and granted in part.
This action arises out of an apartment fire that occurred on June 14, 2007. Plaintiff, CIC
Partners (“CIC”), owned and operated a rental property located in Northfield, Minnesota.
(Compl. ¶ 1.) Irene and Leonard Horejsi rented a unit in the building where the fire at issue
occurred. (Horejsi Dep. at 6-24, Ex. 1 to Aff. of William N. Barron in Supp. Mot. Exclude
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Rahman [Doc. No. 26-1].) Approximately five years earlier, the Horejsis had purchased a
Sunbeam heating pad. Mrs. Horejsi testified that the heating pad was used in bed to warm her
husband’s feet because he had poor circulation. (Id. at 17.) Mrs. Horejsi taped the heating pad
to the mattress pad so that it would stay in place. (Id. at 56.) An extension cord was attached to
the heating pad, with a rug placed over the cord, between the bed and the electrical outlet. (Id. at
19-20.) Typically, Mrs. Horejsi turned the heating pad on and off for her husband’s use. (Id. at
79.) On June 14, 2007, however, the heating pad was not turned on, nor had it been in use for a
period of several weeks before the fire. (Id. at 83-84.)
At approximately 1:30 a.m. on June 14, 2007, Mr. Horejsi woke his wife, stating that he
believed a blanket on the bed was on fire. (Id. at 13.) Mrs. Horejsi observed fire coming from
the middle of the blanket, along the foot of the bed and extending down the side. She rolled up
the blanket and carried it outside. (Id. at 13-14; 98-99.) The Horejsis and the other occupants
of the rental complex safely evacuated the building, but the fire continued, causing significant
property damage. (Compl. ¶ 6.)
A. Ronald Rahman’s Opinion
Ronald Rahman, Deputy Investigator with the Fire Marshal Division of the Minnesota
Department of Public Safety, investigated the fire scene. He is a Certified Fire Investigator, has
taught fire investigation courses at community colleges and the Minnesota Bureau of Criminal
Apprehension, and has investigated “hundreds, if not thousands” of fires. (Rahman Dep. at 95-
96 [Doc. No. 26-2].) Rahman has worked for the State Fire Marshal during two periods: from
1985 to 1993, and from 1999 to the present. In between these two periods, Rahman worked as a
claims investigator for an insurance company. (Id. at 6.)
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On the day of the fire, Rahman received a page to go to the scene of the fire. Rahman
examined the interior of the apartment building at the request of Northfield Assistant Fire Chief
Jeff Marchacek. (Rahman Report at 3, Ex. 3 to Barron Aff. [Doc. No. 26-3].) Rahman prepared
an initial report of his investigation of the fire, dated June 20, 2007, as well as a supplemental
report, dated August 8, 2007.1 (Id.; Rahman Dep. at 12, Ex. 2 to Barron Aff. [Doc. No. 26-2].)
In his report, Rahman indicates that upon his arrival at the fire scene, he observed heavy smoke
damage in the hallways, with heat damage apparent above the doorway to the Horejsi’s unit.
(Rahman Report at 3, Ex. 3 to Barron Aff. [Doc. No. 26-3].) He found the apartment complex
uninhabitable. (Rahman Dep. at 36, Ex. 2 to Barron Aff. [Doc. No. 26-2].) He describes the
Horejsi’s bedroom as significantly fire damaged throughout, with the lowest area of fire damage
located at the foot of the bed and the front of the dresser directly in front of the bed. (Rahman
Report at 4-5 [Doc. No. 26-3].) In his report, Rahman also describes debris from the fire in this
During this process, small gauge stranded wires were noted in and under the fire
debris. The significantly melted remains of a small plastic oblong object were
noted bonded to a piece of floor carpet close to the northwest corner of the
dresser. Utilizing a carpet knife, the edges of the object were cut loose of the
carpet and the object was turned over. The underside of the object was white in
color and plastic. It still retained the original shape and design on the protected
side. Further visual examination of this object revealed it to be a plug-in for
either an electric blanket or a heating pad.
(Id. at 5.)
1 Rahman’s initial report of June 20, 2007, and his supplemental report of August 8,
2007, were submitted as a single exhibit, Ex. 3 to Barron Aff. [Doc. No. 26-3].) The initial
report is at pages 1-10 of the exhibit, and the supplemental report is at pages 11-12. Unless
otherwise noted, the Court cites to both documents collectively as the “Rahman Report.” In
addition to Mr. Rahman’s initial and supplement reports, the parties deposed him on October 19,
2010. (Rahman Dep., Ex. 2 to Barron Aff. [Doc. No. 26-2].)
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In addition, Rahman examined the remains of the bed. There, he also observed small
gauge stranded electrical wires on the top of the fire remains at the foot of the bed. (Id.)
Rahman’s report indicates that only the individual springs of the mattress were “predominantly
totally annealed in the foot area of the bed, while the springs close to the head of the bed still
retained their original shape and tensile strength.” (Id.) Rahman examined the springs
throughout the bed, but did not find any other small gauge stranded wires in any other location
besides the foot of the bed. (Id. at 5-6.)
Rahman ultimately concluded that “this case may be marked as accidental in cause, with
the most probable ignition source being the Sunbeam heating pad that was located at the foot of
the bed.” (Rahman Dep. at 12 [Doc. No. 26-3].) In his deposition, Rahman further noted that, in
addition to the annealed mattress springs found only in the area near the foot of the bed, “the
only edges of the floor joists that are damaged in that entire bedroom are above the bed, and
most specifically, above the foot of the bed, above the area where this particular heat pad was.”
(Id. at 94.)
Rahman testified about how and why he ruled out certain other possible causes of the
fire. For example, he testified to his opinion that fire did not originate in the electrical outlet on
the east wall of the bedroom:
[U]sually, if an outlet would be an area of origin, the heat factor is going to be at
the area of origin, which in this case, then, would have been the outlet. That
should have damaged the wall stud, which is wood, in this case, directly adjacent
to it and where the outlet is fastened to. That didn’t happen.
(Id. at 92.) In addition, Rahman opined that the extension cord was not the likely cause of the
fire. (Id. at 87-88.) When asked if he was aware of other fires caused by electrical appliances
in the “off” position, Rahman testified that he has either investigated or known of other fires
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caused by plugged-in electrical appliances in the “off” position. (Id. at 97.)
B. Paul Hansen’s Opinion
Plaintiff’s insurer retained EFI Global to determine the cause and origin of the fire. Paul
Hansen, an electrical engineer employed by EFI Global, provided an expert report and opinion in
this case. (Hansen Report, Ex. 4 to Aff. of William N. Barron in Supp. Mot. Exclude Hansen.
[Doc. No. 30-4].) Hansen considers himself to be an expert in electrical engineering,
particularly with respect to forensic work related to electrical engineering. (Hansen Dep. at 14,
Ex. 5 to Barron Aff. [Doc. No. 30-5].) He possesses an electrical engineering degree and is a
member of the National Fire Protection Association (“NFPA”).2 (Id. at 12.)
Hansen and Keith Tarbox, a fire investigator for EFI Global, participated in an on-site
investigation on July 31, 2007, along with investigators for Defendant Sunbeam. (Id. at 35-37.)
In his report, Hansen describes his observations based on the July 31, 2007 visit. (Hansen
Report at 3, Ex. 4 to Barron Aff. [Doc. No. 30-4].) In addition, he describes an initial
nondestructive examination of the preserved evidence on September 24, 2007. (Id. at 3-4.)
Based on this September examination, he concluded that no additional destruction on the
remains of the heating pad was necessary, as no further tests or examination could be done in
Hansen’s laboratory on any arced or potentially arced wires. (Id.) All of the parties’
representatives again examined the evidence on November 8, 2007.
Hansen testified that, in order to reach his opinion, he conducted forensic examinations
of the fire scene debris, consulted photographs of the fire scene, spoke with Mr. Rahman about
his investigation and the eye witness accounts of the fire, and spoke with his colleague Keith
2 In addition to serving as a professional association, the NFPA promulgates codes and
standards applicable to several fields, including fire investigation.
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Tarbox about his investigation and the eye witness accounts. (Hansen Dep. at 44-47, Ex. 5 to
Barron Aff. [Doc. No. 30-5].) In his report, Hansen discusses the heating pad as the source of
the fire:
Very little of the electric heating pad on the bed was recovered. It can be
identified as a Northern Electric/Sunbeam heating pad from the two recovered
thermostats. The controller for this device, which as electrical parts consisting
basically of a three-position switch, was unrecognizable post-fire and was not
recovered in any identifiable condition. While its condition does not definitively
demonstrate that its failure was the ignition source of the fire, its current state is
certainly consistent with this hypothesis. The other arcing noted in the nearby
wiring in the bedroom is also consistent with the hypothesis that the electric
heating pad, which was at the foot of the bed at the time of the fire, was the
ignition source of the fire. While it is possible to construct theories of how the
arcing in the other wiring might have ignited this fire, such theories are not
consistent with the eyewitness accounts of the fire nor are they consistent with the
complete destruction of the controller/switch.
The only theory consistent with the known facts of the case is a failure of the
switch assembly in the heater controller resulting in the ignition of cloth materials
at the foot of the bed.
(Hansen Report at 6, Ex. 4 to Barron Aff. [Doc. No. 30-4].)
In reaching “the inescapable conclusion . . . that the cause of this fire was the failure of
the Northern Electric/Sunbeam electric heating pad’s switch assembly” (id. at 7), Hansen
eliminated other possible causes of the fire. For example, he ruled out the Horejsi’s electric
blanket as the cause of the fire because it was not plugged in at the time of the fire, was almost
intact, and the blanket’s cord set was still in the room. (Hansen Dep. at 66, Ex. 5 to Barron Aff.
[Doc. No. 30-5].) In addition, he noted that the fire was observed to occur around Mr. Horejsi’s
feet, in the area where the heating pad was located. (Id. at 71.) Hansen also testified about his
conclusion that the failure of the extension cord was not the possible cause of the fire. He
eliminated the extension cord due to its location and because, as an electrical principle, the cord
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would have carried voltage, as opposed to electrical load. Given these circumstances, Hansen
testified that it would have been “very, very difficult to get a cord failure under these
conditions.” (Id. at 99.)
C. Litigation
Plaintiffs filed suit in state court in October 2009, alleging negligence, strict liability and
breach of express and implied warranties. (Compl. ¶¶ 7-20.) Defendant removed the case to this
Court in November 2009. (Notice of Removal [Doc. No. 1].)
Defendant moves for summary judgment on all of Plaintiff’s claims. Defendant contends
that Plaintiff has failed to provide sufficient evidence of causation. In particular, Sunbeam
argues that Plaintiff has not submitted admissible expert evidence showing that a defect in the
heating pad caused the fire. Defendant seeks to exclude the opinions of Plaintiff’s expert Paul
Hansen and Plaintiff’s “unretained, undisclosed expert Ronald C. Rahman,” on the grounds that
the experts failed to use reliable methodology in investigating the fire and in rendering their
opinions. (Def.’s Mem. in Supp. Mot. Summ. J. at 1-2 [Doc. No. 35].) Specifically, Defendant
argues that Plaintiff’s experts did not adhere to the applicable professional guideline, NFPA 921:
Guide for Fire and Explosion Investigations. As to Rahman, Sunbeam contends that not only
should his testimony be excluded for substantive reasons, but because Plaintiff failed to timely
disclose him as an expert, his testimony should be excluded on procedural grounds.
Even if the Court does not exclude Plaintiff’s expert opinions, Defendant argues Plaintiff
still cannot prove causation. Sunbeam contends that Plaintiff’s strict liability claim subsumes its
breach of warranty of merchantability claim, which, Defendant contends, fails because the
express warranty on the heating pad had expired at the time of the fire. Finally, Defendant
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argues that Plaintiff’s failure to warn claim fails because Plaintiff has not provided any evidence
showing that different or additional warnings would have prevented Plaintiff’s damages.
In its response memorandum, Plaintiff argues that the opinions held by Rahman and
Hansen are based on reliable methodologies and are admissible under the standards set forth in
Daubert and Fed. R. Evid. 702. In addition, Plaintiff avers that it will withdraw its warranty
claims in Count III of the Complaint. However, it argues that its claims for negligence and strict
liability should survive summary judgment, as Plaintiff has submitted eyewitness testimony and
expert opinion as to the cause of the fire. (Pl.’s Opp’n Mem. at 26 [Doc. No. 43].) Moreover,
Plaintiff contends that circumstantial evidence of product malfunction is a sufficient basis on
which to submit a strict liability claim to a jury. (Id.)
A. Expert Testimony
Opinion testimony from an expert “qualified . . . by knowledge, skill, experience, training
or education” is admissible “[i]f scientific, technical, or other specialized knowledge will assist
the trier of fact” and if “(1) the testimony is based upon sufficient facts or data, (2) the testimony
is the product of reliable principles and methods, and (3) the witness has applied the principles
and methods reliably to the facts of the case.” Fed. R. Evid. 702. The Court, acting as a
“gatekeeper,” must evaluate whether proffered expert testimony passes muster under Rule 702,
Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 597-98 (1993), bearing in mind
that the touchstone for admitting such testimony is assistance to the trier of fact. See, e.g.,
Larson v. Kempker, 414 F.3d 936, 941 (8th Cir.2005). Courts may allow expert testimony only
when it is both relevant and reliable, Daubert, 509 U.S. at 597-98, but “Rule 702 reflects an
attempt to liberalize the rules governing the admission of expert testimony,” and “favors
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admissibility over exclusion.” Lauzon v. Senco Prods., Inc., 270 F.3d 681, 686 (8th Cir. 2001).
Accordingly, doubts regarding the usefulness of an expert’s testimony should be resolved in
favor of admissibility, United States v. Finch, 630 F.3d 1057, 1062 (8th Cir. 2011), and “[g]aps
in an expert witness’s qualifications or knowledge generally go to the weight of the witness’s
testimony, not its admissibility.” Robinson v. GEICO Gen. Ins. Co., 447 F.3d 1096, 1100 (citing
29 Charles Alan Wright & Victor James Gold, Federal Practice and Procedure: Evidence § 6265
(1997)). “The exclusion of an expert’s opinion is proper only if it is so fundamentally
unsupported that it can offer no assistance to the jury,” Wood v. Minn. Mining & Mfg. Co., 112
F.3d 306, 309 (8th Cir. 1997) (internal quotations and citation omitted).
In screening expert testimony under Rule 702, a district court applies a three-part test.
First, evidence based on scientific, technical, or other specialized knowledge must
be useful to the finder of fact in deciding the ultimate issue of fact. This is the
basic rule of relevancy. Second, the proposed witness must be qualified to assist
the finder of fact. Third, the proposed evidence must be reliable or trustworthy in
an evidentiary sense, so that, if the finder of fact accepts it as true, it provides the
assistance the finder of fact requires.
Lauzon, 270 F.3d at 686 (internal citations and quotations omitted).
1. Paul Hansen
Applying this test to Hansen’s proffered expert opinion, the Court finds it sufficiently
reliable to be admitted under Rule 702 and Daubert. Courts analyze reliability from a flexible,
case-specific standpoint. Kumho Tire Co. v. Carmichael, 526 U.S. 137, 149-150 (1999).
Factors to be considered are whether the expert’s theory or technique can be or has been tested,
whether it has been or is subject to peer review, and whether the theory or technique is generally
accepted within the relevant scientific community. Id. Defendant does not challenge Hansen’s
qualifications, but rather, his methodology, arguing that Hansen’s opinions and testimony are not
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the product of any reliable methodology, and are not in conformity with NFPA 921. In response,
Plaintiff argues that Hansen’s methods are generally consistent with NFPA 921, are reliable and,
in any event, the NFPA methodology is not the exclusive methodology available.
Defendant’s fire investigator Ron Hall contends that the 2004 edition of NFPA 921, in
effect at the time of the fire at issue, provides a working framework by which effective fire
investigations and cause and origin analyses may be accomplished. (Hall Aff. ¶¶ 2-3, Ex. 6 to
Barron Aff. [Doc. No. 30-6].) Hall attests that, among the procedures set forth in NFPA 921,
fire scene investigators are advised to utilize fire scene reconstruction, perform adequate debris
removal, interview owners and occupants about the fire, locate all sources of potential ignition,
and eliminate other possible sources through developing, testing and rejecting of alternative
hypotheses. (Id. at ¶¶ 4-16.) Sunbeam’s expert further contends that an investigator should use
the scientific method as the method for data gathering, hypotheses development and hypotheses
testing. (Id. at ¶ 15.)
From the description of Hansen’s testing methodology, the Court is satisfied that, for
purposes of the Daubert standard, Hansen reached his conclusions using a generally-accepted
methodology. As stated in his report, his examination of the fire scene “proceeded along the
general guidelines as outlined in NFPA 921 and other guidelines typically used in the fire
investigation profession.” (Hansen Report at 2, Ex 4 to Barron Aff. [Doc. No. 30-4].)
Consistent with NFPA 921, Hansen reviewed the available evidence, obtained information
regarding eyewitness accounts, inspected and photographed the fire scene, evaluated the
electrical arcing and eliminated certain causes of the fire. While Hansen may not have
performed every method of fire scene investigation set forth in NFPA 921, he appears to have
utilized many of the techniques set forth in the guideline. As recognized by this Court in
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American Family Mut. Ins. Co., v. Hewlett-Packard Co., 07-CV-792 (ADM/AJB), 2008 WL
2130217, *6 (D. Minn. May 19, 2008), “although compliance with NFPA 921 may be an
important credential for expert testimony, it does not have talismanic significance.” In American
Family, this Court rejected the defendant’s argument that the plaintiff’s expert’s lack of
adherence to NFPA 921 methodology rendered the expert’s investigation unreliable. Id. at *4-6.
The plaintiff’s experts had made clear that they identified five possible sources of ignition and
then used the scientific method to determine which was the most probable source. Id. at *6.
In this case, Hansen testified as to the possible causes of the fire and why he determined
that the heating pad was the cause. As Hansen explained, a heating pad, plugged in, in the “off”
position, can start a fire:
It’s a switch failure, regardless of when the last time the switch was operated.
Switch failures occur for – well what causes a fire is you have a conducted path of
resistance which causes resistance heating, igniting the nearby combustibles.
[The] [f]irst fuel would be the switch housing, which may or may not have been
flame- retardant. As long as you’re applying heat, it will burn, and then the
source of the fuel after that would be the bedding material. The blanket seems to
be in close proximity, and the fitted sheet would also qualify as an early fuel.
(Hansen Dep. at 92, Ex. 5 to Barron Aff. [Doc. No. 30-5].) Hansen further testified that the
heating pad switch was the only ignition source that could not be eliminated as the cause of the
fire. (Id.)
Defendant is particularly critical of Hansen’s elimination of the extension cord as a
possible cause of the fire. However, Hansen explained that he ruled out the extension cord not
only due to its location, but because, in his experience, it would be very difficult to generate heat
in a cord that carries voltage, but not load. While Defendant argues that Hansen was confused
about the location of the extension cord, the evidence also demonstrates that Hansen’s judgment
was not based only on the location of the cord. Hansen noted that the fire was observed to occur
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around Mr. Horejsi’s feet, in the area where the heating pad was located. (Id. at 71.) In addition,
Hansen testified that the extension cord was not the likely cause of the fire because it would have
carried voltage, as opposed to electrical load, and would not have been likely to fail. (Id. at 99.)
Hansen has sufficiently explained his methodology and, while Defendant disagrees with
his opinion, this difference of opinion may be explored through fulsome cross-examination and
the presentation of rebuttal expert opinion. This Court reached the same conclusion in Quist v.
Sunbeam Prods., Inc., 08-CV-5261 (DWF/AJB), 2010 WL 1665254, * 7-8 (D. Minn. Apr. 22,
2010), in which Sunbeam similarly moved to exclude the testimony of two experts in a case
involving a Sunbeam heating pad that was alleged to have caused a fatal fire. Likewise,
Sunbeam’s disagreement here with Hansen’s methodology and conclusions is not grounds for
the exclusion of his opinion.
Defendant further argues that Hansen failed to test this theory on an exemplar, but, as
Plaintiff contends, it would be difficult to test this theory, as it would apparently require
plugging in a Sunbeam heating pad, turning it to the “off” position, and waiting for an unknown
period of months, for a fire to occur. Finally, while Defendant contends that Hansen failed to
interview Mrs. Horejsi and did not review her deposition transcript, this does not merit the
exclusion of his testimony.3 Hansen reviewed Rahman’s report and spoke to both Rahman and
Keith Tarbox about the eyewitness accounts. Mrs. Horejsi was clear in her testimony that she
saw the fire only in the area of the bed near the heating pad and nowhere else in the room.
(Horejsi Dep. at 14, Ex. 1 to Barron Aff. [Doc. No. 26-1].) For all of these reasons, Hansen is
3 The Court notes that as to the witnesses to the fire, only Mrs. Horejsi was deposed
because Mr. Horejsi passed away in November 2010. (Horejsi Dep. at 41, Ex. 1 to Barron Aff.
[Doc. No. 30-1].)
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qualified to offer his opinion and, subject to proper foundation, his proffered testimony
sufficiently satisfies the reliability requirements of Daubert.
As to the relevance of Mr. Hansen’s proffered testimony, the Court finds that his
proffered opinion is highly relevant. Defendant offers no substantive argument to the contrary,
other than its arguments against Hansen’s methodology. Further, even Sunbeam’s electrical
engineering expert apparently does not rule out the heating pad as a possible source of the fire.
Richard Blanchard, Defendant’s expert, identifies three possible sources for the fire: the
extension cord, the outlet at the head of the bed, and the heating pad control. (Blanchard Rep. at
25, Ex. 1 to Decl. of Richard Blanchard [Doc. No. 41-1].) While Blanchard believes that the fire
scene evidence does not indicate that the heating pad control caused the fire, he does not rule it
out entirely. (Id.) Opinion evidence as to the cause of the fire is the central issue in this case.
Such testimony is therefore relevant and will assist the trier of fact. Defendant’s motion to
exclude the testimony and opinion of Mr. Hansen is denied.
2. Ronald Rahman
As noted, Defendant argues that the opinion and testimony of Ronald Rahman should be
excluded on procedural grounds due to Plaintiff’s untimely expert disclosure. Discovery in this
case was to have been completed by April 1, 2011. (Order of 1/25/11 [Doc. No. 20]) At the
hearing on Defendant’s instant motions, counsel for Plaintiff represented that Plaintiff disclosed
Rahman as an expert on May 4, 2011. (Tr. of 8/12/11 hearing [Doc. No. 48].) However,
Defendant apparently had prior notice of Plaintiff’s intent to use Rahman as an expert witness,
albeit not formal notice, as the instant motion to exclude his expert testimony was filed on April
15, 2011. The parties had deposed Rahman several months earlier, on October 19, 2010. (Ex. 2
to Barron Aff. [Doc. No. 26-3].)
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In Tomlin v. Holecek, 158 F.R.D. 132, 136 (D. Minn. 1994), this Court considered
factors set forth by the Eighth Circuit in determining whether to exclude the testimony of a
witness not disclosed in compliance with a pretrial order. The factors include: (1) the reason the
party fails to name the witness; (2) the importance of the testimony; (3) the amount of time the
opposing party needs to properly prepare for the testimony; and (4) whether a continuance would
in some way be useful. Id. Plaintiff offers no explanation for its failure to disclose Rahman as
an expert in accordance with Fed. R. Civ. P. 26 and this Court’s orders. However, there is no
evidence that the delay and non-disclosure were tactical ploys. Rather, the failure appears to
have involved “oversight, neglect or inadvertence.” Id. “In and of itself, such an explanation
for untimely expert disclosures is insufficient to warrant an exclusion of the testimony of those
experts who were so belatedly disclosed.” Id.
Turning to the second element of the analysis, there is no question that the testimony of
Rahman is critical to Plaintiff’s case. Although he was not initially retained to given an opinion
as to the cause of the fire, in the course of his investigation on behalf of the State Fire Marshal,
he reached conclusions about the fire and its cause. His testimony therefore implicates
Defendant’s liability. Given Rahman’s role in investigating the fire on behalf of the State Fire
Marshal, at the very least, the parties considered him to be a fact witness from the outset of the
case. Rahman was consequently deposed. Although his deposition occurred prior to Plaintiff’s
disclosure of Rahman as an expert, Defendant had the opportunity to question his conclusions
and methodology. On balance, the Court finds that the importance of Rahman’s testimony
outweighs any harm to Defendant. As to the factors involving the amount of time that the other
side requires in order to properly prepare and any need for a continuance or delay, Plaintiff’s
disclosure of Rahman, while late, came well in advance of trial. Defendant will have a full
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opportunity to cross-examine Rahman at trial. The Court will not exclude his testimony on the
grounds of Plaintiff’s late expert disclosure.
As to the merits of Sunbeam’s motion to exclude Rahman’s testimony, as with Hansen’s
testimony, Defendant argues that Rahman’s opinion and testimony should be excluded for its
failure to strictly adhere to NFPA 921. Sunbeam argues that Rahman’s conclusion was not
reached through application of the appropriate methodology. Plaintiff rebuts Sunbeam’s
position, arguing that Rahman followed proper methodology in conducting an investigation of
the fire scene and that his opinion is reliable and helpful to the trier of fact.
The Court finds that Rahman’s testimony is reliable and admissible, subject to proper
foundation being laid. Sunbeam’s challenges to Rahman’s testimony go to his credibility, not
admissibility. As to Rahman’s methodology in investigating the fire, Rahman testified that,
when investigating fires, he tries to follow the NFPA guidelines, using the scientific method.
(Rahman Dep. at 8; 80, Ex. 2 to Barron Aff. [Doc. No. 26-2].) Rahman arrived at the fire scene
on the day of the fire and conducted a visual inspection of the exterior and interior of the
apartment building. He spoke with witnesses and wrote a preliminary report. He also examined
the physical evidence from the fire and took photographs of the fire scene. There is nothing
about his approach that demonstrates unreliability or some unusual, or innovative departure from
techniques used by fire investigators. That Rahman does not describe each step of his
methodology in lock-step with the NFPA 921 guidelines is not fatal to the admissibility of his
This Court, and others, have reached the same conclusion. As noted, in American
Family, this Court found that a failure to strictly adhere to NFPA 921 does not render a fire
investigation unreliable, nor is NFPA 921 the exclusive standard for such investigations.
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American Family, 2008 WL 2130217 at *4. Similarly, in a state court case from Connecticut,
Jordan v. Yankee Gas Services Co., No. X01CV940185567S, 2006 WL 280478, * 4 (Conn.
Super. Ct. Jan. 18, 2006), the defendant gas company moved to preclude the testimony of two
fire investigators with the Connecticut State Fire Marshal’s Office, whom the plaintiff had
disclosed as experts. The court rejected the defendant’s argument and found the witnesses
qualified to testify, even if they did not precisely follow NFPA 921:
While the NFPA 921 sets out a method of fire origin and cause investigation
endorsed not only by [the experts at issue] but by professional organizations as
valid, reliable, and authoritative and while it is a comprehensive guide, its
contribution to fire science ought not be over-stated. It may now be the preferred
fire investigative method, but it was never intended to invalidate or supplant all
other valid scientific methods. To suggest—as Yankee Gas does—that all origin
and cause experts must follow the five (5) steps (described in Chapter 4 [of NFPA
921]) comprising the basic methodology of a fire investigation in a ritualistic
lock-step approach ignores not only other authoritative sources (i.e., Kirk’s Fire
Investigation, the Fire Investigation Handbook, the Fire Protection Handbook,
etc.) but also ignores the testimony of both investigators that they employed the
same methodology but did not then identify it as “the scientific method.” It is a
jury question whether their investigation was based on valid and reliable methods
of origin and cause fire investigation.
Id. at *6.
Defendant also apparently takes issue with Rahman’s lack of testing of possible
hypotheses for the fire. Rahman testified that he concluded that the heating pad was the cause of
the fire through the process of elimination:
Q: Ever look in or make any determination how a heating pad such as this, that
had not been turned on or used for about two months before the fire, could
generate enough heat to cause a fire?
A: By looking at the damages to the room and down to that area of the bed where
fire was stated to be first and then doing the elimination process of what is there.
The only other item that was there, besides the mattress, the electric blanket, was
the heating pad. The electric blanket was not plugged in. Therefore, it could not
be considered as an ignition source because it had no potential power to it. The
only other item there, going back again, is the heating pad. The area where the
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heating pad was, the springs are annealed, which is the losing of tensile strength
and flattening out of the springs.
(Id. at 83-84.) In his deposition, Rahman acknowledged that as a State Fire Investigator, he is
charged with determining whether a fire is accidental or criminal and what may have caused the
fire. (Id. at 85.) He testified that as to this fire scene, he also was present when electrical
engineers, including the parties’ experts, were processing the scene. (Id. at 86.) He also
conceded that he performed no scientific testing to determine whether the heating pad was the
source of the fire, but also stated, “[h]owever, hypotheses can also be used as scenarios or
potential scenarios and not just scientific testing.” (Id. at 85.)
Rahman relies on his experience and training as a fire investigator, his personal
examination of the fire scene and electrical evidence, and interviews with witnesses. He has
investigated hundreds of fire scenes. He is familiar with NFPA 921, and also relies on the
scientific method in conducting fire scene investigations. His testimony is both relevant to the
central issue of the case and helpful to the trier of fact. To the extent that Sunbeam disagrees
with Rahman’s methodology and conclusions, Sunbeam may challenge Rahman’s credibility at
trial, rebut his testimony with Sunbeam’s own witnesses and submit its own contrary evidence.
Defendant’s Daubert motion as to Rahman, however, is denied.
B. Summary Judgment
Summary judgment is proper if there are no disputed issues of material fact and the
moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(a). The moving party
bears the burden of showing that the material facts in the case are undisputed. Celotex Corp. v.
Catrett, 477 U.S. 317, 322 (1986); Whisenhunt v. S.W. Bell Tel., 573 F.3d 565, 568 (8th Cir.
2009). The Court must view the evidence, and the inferences that may be reasonably drawn
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from it, in the light most favorable to the nonmoving party. Matsushita Elec. Indus. Co., Ltd. v.
Zenith Radio Corp., 475 U.S. 574, 587 (1986); Weitz Co., LLC v. Lloyd’s of London, 574 F.3d
885, 892 (8th Cir. 2009); Carraher v. Target Corp., 503 F.3d 714, 716 (8th Cir. 2007). The
nonmoving party may not rest on mere allegations or denials, but must show through the
presentation of admissible evidence that specific facts exist creating a genuine issue for trial.
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 256 (1986); Davenport v. Univ. of Ark. Bd. of
Trustees, 553 F.3d 1110, 1113 (8th Cir.2009) (citing Anderson, 477 U.S. at 247–49).
1. Warranty Claims
Plaintiff avers that it will withdraw its claims alleging breach of express and implied
warranties. The Court therefore grants Defendant’s Motion for Summary Judgment in part, as it
relates to the warranty claims.
2. Negligence and Strict Liability
Sunbeam argues that Plaintiff’s remaining claims for negligence and strict liability
should be dismissed on summary judgment because Plaintiff cannot show that a design defect
was the proximate cause of the injury. In addition, Sunbeam argues that Plaintiff’s failure to
warn strict liability claim also fails.
a. Defect
As to causation in general, to the extent that Defendant’s motion for summary judgment
is premised upon the exclusion of Plaintiff’s expert testimony, it is denied. Regarding the issue
of defect, a design defect is a proximate cause of injury when the injury follows in unbroken
sequence from the defect without an intervening cause. Thompson v. Manitex, 04-CV-3046
(JRT/FLN), 2006 WL 748280, *2 (D. Minn. Mar. 22, 2006) (citations omitted). Sunbeam
argues that summary judgment is appropriate because Plaintiff cannot show that the design of
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the heating pad’s switch assembly was the cause of injury. Plaintiff argues that circumstantial
evidence of defect may be admissible to prove defect, citing Holkestad v. Coca-Cola Bottling
Co., 180 N.W.2d 860, 865 (Minn. 1970), and Lindsay v. McDonnell Douglas Aircraft Corp., 460
F.2d 631 (8th Cir. 1972).
It is true that circumstantial evidence may be admitted to prove defect, but, as Defendant
contends, this type of proof typically arises in res ipsa loquitur cases. For example, Holkestad, a
“classic” res ipsa loquitur case, involved an exploding bottle of Coca Cola that injured the
plaintiff, and for which there was no other explanation but that the bottle was defective. 180
N.W.2d at 864. Lindsay involved a new navy jet that crashed into the ocean with only four
hours of total flight time. Here, however, whether the heating pad caused the fire is not a res
ipsa situation, but is, instead, an issue of strongly disputed fact. Defendant has submitted expert
testimony that rebuts Plaintiff’s theories.
Plaintiff’s experts opine that the fire was proximately caused by the heating pad.
Electrical engineering expert Hansen specifically contends that the cause of the fire was the
failure of the heating pad’s switch assembly. (Hansen Report at 7 [Doc. No. 30-4].) In his
deposition, Hansen testified that the heating pad’s switch failure led to resistance heating which,
in turn, ignited nearby combustibles. (Hansen Dep. at 94, Ex. 5 to Barron Aff. [Doc. No. 30-5].)
While Hansen may not use the word “defect,” implicit in his conclusion is that the heating pad
switch was defective and proximately caused the fire.
Defendant argues that the facts of this case are very similar to those of Fireman’s Fund
Ins. Co. v. Canon, U.S.A., Inc., 394 F.3d 1054 (8th Cir. 2005). In that products liability action
against a manufacturer of a copier that allegedly caused a fire, this Court excluded the plaintiff’s
expert opinions as unreliable. The Court found that the experts’ proffered opinions did not
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follow the provision of NFPA 921 that requires an investigator to compare their hypothesis to all
known facts by reconciling the empirical evidence with their theory. This was particularly true
as the experts had reversed their opinions on the meaning of the burn pattern evidence – an
about-face which “seriously undermine[d] the reliability of the experts’ opinions.” Id. at 1059.
On appeal, the Eighth Circuit affirmed, finding that the Court did not abuse its discretion in
excluding the opinions. Id. at 1058. Absent the excluded opinions of the fire causation experts,
the Eighth Circuit agreed that the plaintiff presented no evidence of any defect in the copier. Id.
at 1060-61. Even if the opinions had been admissible, the Eighth Circuit found that the plaintiff
failed to present evidence from which a jury could determine that a defect in the copier was the
proximate cause of the fire. The experts theorized that a thermal fuse was defective, but their
experimental tests did not demonstrate that the heating element could generate an open flame
before the thermal fuse was opened. Id. at 1061. In addition, the experts advanced no theory
showing how the heater control circuitry could malfunction to produce an electrical current to
start a fire. Id.
The Court finds that Fireman’s Fund involved facts distinct from those here. The
experts, whose opinions were excluded, had changed their opinions, failed to articulate a defect
and their opinions did not mesh with the empirical evidence. The Court finds that Plaintiff’s
expert Hansen has advanced a sufficient theory of proximate causation and his opinion is not
inconsistent with the empirical evidence. Defendant’s motion for summary judgment on this
ground is denied.
b. Failure to Warn
“A cause of action for failure to warn is separate from one for an allegedly defective
product design.” Thompson, 2006 WL 748280 at *4 (citing Holowaty v. McDonald’s Corp., 10
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F. Supp.2d 1078, 1085 (D. Minn. 1998)). It appears that Plaintiff alleges a failure to warn only
in its strict liability claim. (Cf. Counts I & II, Complaint [Doc. No. 1-1].) In any event, the
Minnesota Supreme Court has determined that strict liability and negligent failure to warn claims
are analyzed under the same standard. Johnson v. Zimmer, 02-CV-1328 (JRT/FLN), 2004 WL
742038, *9, n.8 (D. Minn. Mar. 31, 2004) (citing Bilotta v. Kelley Co., 346 N.W.2d 616, 622
(Minn. 1984)). A plaintiff must establish the following elements of a failure to warn claim under
Minnesota law: “(1) the defendants had reason to know of the dangers of using the product; (2)
the warnings fell short of those reasonably required, breaching the duty of care; and (3) the lack
of an adequate warning caused the plaintiff’s injuries.” Tuttle v. Lorillard Tobacco Co., 377 F.3d
917, 924 (8th Cir.2004) (citing Erickson v. Am. Honda Motor Co., 455 N.W.2d 74, 77–78
(Minn. Ct. App.1990) (quotations omitted)). Plaintiff alleges that
Sunbeam knew or should have known of the potential risk of injury and damage
associated with the manufacture, design and/or distribution of its heating pad as
provided, and had a duty to warn consumers of the same. Its failure to do so in
this case is the cause of the fire and the damages claimed herein.
(Compl. ¶ 18 [Doc. No. 1-1].)
Under Minnesota law, a manufacturer has a duty to warn the users of its products of all
dangers that are associated with those products of which it has actual or constructive knowledge.
Gryc v. Dayton–Hudson Corp., 297 N.W.2d 727, 739 (Minn. 1980); Harmon Contract Glazing,
Inc. v. Libby–Owens–Ford Co., 493 N.W.2d 146, 151 (Minn. Ct. App. 1992). “Failure to
provide such warnings will render the product unreasonably dangerous and will subject the
manufacturer to liability for damages under strict liability in tort.” Gryc, 2 97 N.W.2d at 739
(quotation omitted). The question of whether a duty to warn exists is a question of law for the
Court. Harmon, 493 N.W.2d at 151. The adequacy of a warning is typically a question of fact
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for the jury. Balder v. Haley, 399 N.W.2d 77, 81 (Minn. 1987).
Where an adequate warning could not have prevented a plaintiff’s injuries, the
manufacturer’s failure to warn is not the cause of the injury. Johnson, 2004 WL 742038 at *9
(citing Balder, 399 N.W.2d at 81)). If there are warnings on the product, Courts consider
whether the plaintiff or the injured party has read the applicable warnings. “In a failure-to-warn
case, when a warning label is affixed to the product, ‘[a]bsent a reading of the warning, there is
no causal link between the alleged defect and the injury.’” Yennie v. Dickey Consumer Prods.,
Inc., No. C1-00-89, 2000 WL 1052175, *2 (Minn. Ct. App. Aug. 1, 2000.))
Sunbeam argues that it provided 14 warnings as part of the instructions for use for the
heating pad (Instructions for Use, Appendix B to Blanchard Report [Doc. No. 41-1 at 34]), and
provided 13 warnings printed directly on to the cover of the heating pad. (Photo of Heating Pad
Cover and Heating Pad Warnings, Appendices C & D to Blanchard Report [Doc. No. 41-1 at 39
& 41].) The warnings on the heating pad and its cover include the following: “DO NOT USE
PLACE.” (Id.) (emphasis added).
Plaintiff has not provided evidence that the heating pad users, the Horejsis, read the
accompanying warnings. Mrs. Horejsi testified that her husband did not read the instructions or
information that came with the heating pad and she cannot remember if she did. (Horejsi Dep. at
55, Ex. 1 to Barron Aff. [Doc. No. 30-1].) Whether she read the warnings or not, Plaintiff has
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not shown that the Horejsis would have acted differently had they known of the risk, even if
provided with different or additional warnings. Rather, the evidence shows that even if the
Horejsis had read the warnings, they ignored many of them. For instance, Mrs. Horejsi testified
that the heating pad was used to warm her husband’s feet, due to his poor circulation (id. at 17),
although the product warnings indicate that it is not be used by someone with poor circulation.
At her deposition, she testified that she did not recall any such warning. (Id. at 102.) She also
testified that the heating pad was plugged in at the time of the fire, but not turned on (id. at 17-
18), although the product warnings indicate that it should be unplugged when not in use. She
also testified that she had no recollection of any such warning regarding unplugging the device.
(Id. at 102.) Mrs. Horejsi taped the heating pad to the mattress pad so that her husband could
place his feet on top of it (id. at 56-57), although the product warnings indicate that the pad is to
be placed on top of the body, rather than underneath it. Mrs. Horejsi testified that she had no
recollection of such a warning regarding placement of the heating pad on the body (Id. at 102.)
Had she been aware of these warnings, Mrs. Horejsi testified that she did not know whether she
would have let her husband use the heating pad in the manner in which he used it. Rather, she
thought she was using it safely and in the only manner that worked for her husband. (Id. at 103-
04.) In addition to this testimony, Plaintiff’s experts do not offer an opinion regarding the
adequacy of the warnings at issue or whether a different warning would have prevented
Plaintiff’s damages.
In Yennie, the Minnesota Court of Appeals found that the plaintiff failed to show that her
deceased husband had read the warning labels on the over-the-counter drug in question. 2000
WL 1052175 at *2. Even if he had, the court found that he disregarded them. Therefore, the
trial court determined, and was affirmed on appeal, that the evidence was insufficient to
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demonstrate a causal connection between the allegedly inadequate warnings and the decedent’s
death. Id. Moreover, in Quist, while this Court found that expert testimony was not needed as
to the sufficiency of Sunbeam’s warnings, it also held that Sunbeam did not owe a post-sale duty
to warn about reports of its heating pads causing fires. Quist, 2010 WL 1665254 at *5. Under
Minnesota law, a continuing duty to warn of dangers associated with using a product arises only
in “special cases.” Hodder v. Goodyear Tire & Rubber Co., 426 N.W.2d 826, 833 (Minn. 1988).
This Court found it unreasonable in Quist to expect a manufacturer of heating pads to
“adequately trace the owners of their products, who often purchase them anonymously, without
registration, from pharmacies and discount stores.” Quist, 2010 WL 1665254 at *5.
The Court finds that Plaintiff’s evidence on its failure to warn theory of liability is
insufficient to withstand summary judgment. For these reasons, summary judgment is granted
in part as to Plaintiff’s failure to warn claim.
1. Defendant’s Motion to Exclude Expert Testimony and Opinions of Ronald C.
Rahman [Doc. No. 23] is DENIED;
2. Defendant’s Motion to Exclude Expert Testimony and Opinions of Paul W.
Hansen [Doc. No. 27] is DENIED;
3. Defendant’s Motion for Summary Judgment [Doc. No. 33] is DENIED in part,
and GRANTED in part, consistent with this Order;
4. Plaintiff’s claims for breach of express and implied warranty (Count III) are
5. Plaintiff’s claim for failure to warn (found in Count II) is DISMISSED WITH
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Dated: January 17, 2012
s/Susan Richard Nelson
United States District Judge
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