United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 06-1647
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Henry Hickerson, *
*
Plaintiff - Appellant, *
* Appeal from the United States
v. * District Court for the Western
* District of Missouri.
Pride Mobility Products Corporation; *
The Scooter Store-Kansas City, L.L.C., *
*
Defendants - Appellees. *
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Submitted: September 28, 2006
Filed: December 13, 2006
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Before, ARNOLD, BYE, and MELLOY, Circuit Judges.
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MELLOY, Circuit Judge.
Plaintiff Henry Hickerson lost his wife and home in a fire. He sued Defendants
alleging a motorized wheelchair or scooter they manufactured and sold to him, a Pride
Jet 3 Power Chair (“PowerChair”), was defective and caused the fire. Mr. Hickerson
designated a fire causation expert witness who offered an opinion regarding the
location of the point of origin of the fire and identified the PowerChair as a possible
cause of the fire. The expert based these conclusions on burn patterns and damage
and on the facts that the remains of the PowerChair were sitting at the center of the
area of origin and that no other appliance in the area of origin contained batteries or
was connected to an external power source at the time of the fire. Defendants moved
to exclude Mr. Hickerson’s expert witness on the basis that he was not an expert in the
engineering or manufacturing of motorized chairs or scooters and was therefore
unqualified to identify a specific defect in the PowerChair. Defendants also moved
for summary judgment. The district court granted in part and denied in part
Defendants’ motion to exclude the expert witness and granted Defendants’ motion for
summary judgment. We reverse and remand.
I. Background
The fire consumed Mr. Hickerson’s home in the early morning hours of
October 22, 2003. Mr. Hickerson escaped from the house, but his wife did not. That
same day, two investigators from the office of the State Fire Marshal examined the
site and interviewed the firefighters and other people at the scene. David Owens, one
of the State’s investigators, found the remnants of the PowerChair in an area of a
living room that he identified as the area of the most intense heat and a likely point of
origin for the fire. He examined the PowerChair and found that a battery cable had
shorted to the metal of the chair. He could not determine whether the shorted cable
was a cause or a result of the fire. He also identified the remains of a tower-type space
heater near the remains of the PowerChair and identified shorted wires in the home’s
electric system. Again, he could not determine if the shorted wires were a cause or
a result of the fire. Mr. Owens ultimately concluded that an electrical engineer should
examine the PowerChair. He also concluded that the cause of the fire could not be
determined due to the amount of damage to the scene.
Mr. Hickerson’s insurance company hired a consulting firm to investigate the
fire. The investigator from the consulting firm was William L. Schoffstall, and Mr.
Hickerson designated Mr. Schoffstall as an expert witness regarding fire origin and
causation. Mr. Schoffstall was an experienced firefighter and a certified and
experienced fire scene investigator. Mr. Schoffstall arrived at the site of the remains
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of the Hickerson home on October 23, 2003, the day after the fire. When he arrived,
family members were already sorting through the remains and were in the process of
removing items from the scene.1 The family members complied with a request to exit
the fire scene until after the investigation was complete.
In a written report, Mr. Schoffstall described his examination of the interior and
exterior of the home. He eliminated various rooms as possible locations for the origin
of the fire based on observations of the relative degrees of damage, the pattern and
direction of damage, and the type of damage, i.e., fire, smoke, or heat. He noted an
oval burn pattern in an area of the living room that he identified as the area of the
highest heat and the likely point of origin of the fire (the same area identified by State
Fire Marshal investigator David Owens). Mr. Schoffstall also noted that Mr.
Hickerson had said the area of the oval burn pattern was the area from which he
noticed high heat as he escaped from the house. Mr. Hickerson commented only as
to heat because he could not see through the smoke when escaping the home.
Mr. Schoffstall found no signs of faulting with the home’s circuit breaker box,
but noted that some of the breakers appeared to have been “tampered with” after the
fire. Having found no signs of faulting, he eliminated the breaker box as a possible
point of origin or cause. He also examined the furnace, the washer and dryer, the
oven/stove unit, the dishwasher, and some of the house’s wiring. He found no signs
of faulting and eliminated these items as possible causes. He did note fire damage to
some of the house’s wiring, but observed no evidence that the wiring was a cause or
point of origin for the fire. There is no suggestion that the damaged wiring ran
through the area of the oval burn pattern.
1
In this opinion we do not address any arguments related to spoliation of
evidence. The district court’s treatment of the motion to exclude and the motion for
summary judgment eliminated the need to address the issue of spoliation, and
although Defendants’ brief alludes to this issue, it is not presented for our review.
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Mr. Schoffstall examined and sifted through ashes and debris at the point of
origin and identified the remains of the PowerChair. Mr. Schoffstall found and
preserved as evidence several parts of the PowerChair including wires, battery parts,
parts of the seat, the base of the PowerChair, and an item identified possibly as the
charger. He examined the wiring of the PowerChair and determined that it showed
signs of faulting.
In the written report, Mr. Schoffstall concluded as follows:
In the professional judgment of this investigator, this fire is classified as
undetermined. The fire was found to have started in the living room area
near the west end of the structure. The only source of ignition in this
area was the scooter and with the damage found to the wires of the unit,
it could not be ruled out as the source of the fire.
In an affidavit that he prepared later, Mr. Schoffstall further stated:
5. The only items found in the area of origin were the remnants of
Plaintiff’s scooter, including: the base of the scooter, batteries and
possible charger, parts of the seat, and some wiring.
6. That [sic] the remnants of Plaintiff’s scooter, identified in
Statement No. 5, were the only possible sources of ignition found in the
area of origin. All of the items found in the area of origin, identified in
Statement No. 5, were preserved for investigation and available to
Defendants for inspection.
At the time of the fire, the PowerChair was approximately six months old. Mr.
Hickerson and his wife had purchased the PowerChair new from Defendant The
Scooter Store-Kansas City LLC. Defendant Pride Mobility Products Corporation had
manufactured the PowerChair. Mr. Hickerson stated in a deposition that the space
heater identified by David Owens was not attached to a power source at the time of
the fire. It is undisputed that the space heater contained no batteries or other
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independent, on-board power source. Mr. Hickerson stated in an affidavit that he had
placed insulation in the crawlspace under his home, observed the floor joists, and
observed that no wiring ran through the floor at the alleged area of origin.
Defendants’ experts were Francis Burns, a fire investigator, and Thomas J.
Bazjek, an electrical engineer. These experts were not afforded an opportunity to
examine the fire scene, as Defendants did not receive notice of the fire until after
cleanup had occurred at the site. The preserved remains of the PowerChair were
available for inspection by Defendants at a firm in Tennessee, Diversified Product
Inspections, Inc., and, in fact, Mr. Bazjek participated in a group examination of the
remains. Mr. Burns and Mr. Bajzek also examined the photographs of the fire scene
taken by Mr. Schoffstall, discovery materials related to the litigation, and official
reports from the State Fire Marshal and the local fire department.
Mr. Bazjek stated that when he examined the PowerChair remains, the battery
cable was no longer fused to the frame of the chair, as described by the State Fire
Marshal. However, there was evidence of electrical activity at the corresponding
location of the cable. He also determined that certain pieces of debris collected by Mr.
Schoffstall were not part of the PowerChair, but rather, were an electric plate and
electric heating element “consistent with the type found in portable space heaters.”
Mr. Bazjek ultimately concluded that there was “no evidence of a defect or failure in
any component [of the] PowerChair that could have caused the fire.” He further stated
that the damage to the PowerChair was consistent with “attack by an external fire,”
and he could not rule out two floor lamps, a table lamp, a heating pad, a television, or
a VCR (all purportedly in the living room), or the house’s wiring as possible sources
of the fire.
Expert Francis Burns concluded that nothing from the group examination of the
remains of the PowerChair indicated that the PowerChair was a cause rather than a
victim of the fire. Like Mr. Bajzek, he identified additional “energized” appliances
in the living room, including the two floor lamps, the table lamp, the television and
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VCR, and the heating pad. In addition, he noted that Mr. Hickerson was a smoker and
had been smoking in the house on the night of the fire. There was no suggestion that
Mr. Hickerson had been smoking in the area identified as the origin of the fire, and
Mr. Hickerson stated in his deposition that he had not smoked in the room of origin
on the night of the fire. There was also no suggestion that any appliances or devices
other than the PowerChair and the space heater were located in the area of the living
room identified as the origin of the fire.
Defendants moved to exclude Mr. Schoffstall’s testimony and moved for
summary judgment. The district court granted in part the motion to exclude. The
court found that Mr. Schoffstall was not qualified as an expert regarding the
manufacture or failure of electric scooters, but that he was qualified as an expert
regarding examination of fire scenes and identification of points of fire origin. The
court ultimately stated that Mr. Schoffstall could not testify that Defendants’
PowerChair was the cause of the fire, but could testify “only to his report and
observations he made at the scene of the fire.”
The court went on to hold that, without testimony regarding the existence of a
defect in the PowerChair, Mr. Hickerson could not establish a necessary element of
his product liability claim against Defendants. Accordingly, the court granted
summary judgment in Defendants’ favor on all counts. Mr. Hickerson appeals,
alleging that under Missouri law, expert testimony regarding a specific defect is not
necessary if circumstantial evidence is sufficiently strong to permit the trier of fact to
infer a defect and causation. Under this theory, Mr. Hickerson alleges that Mr.
Schoffstall’s testimony suffices to place the origin of the fire at the location of the
PowerChair and to eliminate other possible causes at that location with a sufficient
degree of certainty to permit a jury to infer a fatal product defect. Defendants argue
that Plaintiff’s expert is unqualified, his conclusions rely upon speculation, and that
without a product or manufacturing expert, any inference of a defect in the present
case would be unreasonable and impermissibly speculative.
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II. Discussion
We review the district court’s grant of summary judgment de novo, viewing the
evidence and testimony in a light most favorable to the non-moving party and drawing
all reasonable inferences of fact in that party’s favor. Martin v. E-Z Mart Stores, Inc.,
464 F.3d 827, 829 (8th Cir. 2006). We review for abuse of discretion the district
court’s ruling regarding the admissibility of expert testimony under Daubert v. Merrell
Dow Pharm., Inc., 509 U.S. 579 (1993). General Elec. Co. v. Joiner, 522 U.S. 136,
139 (1997).
A. Admissibility of Expert Testimony
Defendants oppose the use of Mr. Schoffstall as an expert witness on two
grounds. First, they argue he is not qualified as an electrical engineer or
manufacturing expert and therefore not qualified to offer an opinion as to the existence
of a defect in the PowerChair. Second, they characterize his conclusion that the
PowerChair was the only possible source of ignition as too speculative to satisfy the
reliability requirements of Daubert. Regarding the first point of contention, Mr.
Hickerson does not offer Mr. Schoffstall as an expert in the fields of electrical or
mechanical design or engineering or to identify any specific, alleged defect in the
PowerChair. In fact, nothing in Mr. Schoffstall’s written report or affidavit purports
to describe the nature of any alleged defect or suggest an alternate design that might
have been superior. Mr. Hickerson offers Mr. Schoffstall only as a fire cause and
origin expert and relies entirely upon a res ipsa-type theory of an implied product
defect. Because Mr. Hickerson is not attempting to prove a specific defect and Mr.
Schoffstall is not being offered as an engineering or product design expert, and does
not seek to testify as to these issues, Defendants’ argument in this regard is without
merit.
Regarding the second point, Mr. Schoffstall has extensive experience as a
firefighter and fire investigator, and he is a certified fire investigator. This experience
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demonstrates that he is qualified in the area of expertise for which he has been
designated. In fact, Defendants do not seriously contend that Mr. Schoffstall is
unqualified to conduct a fire scene investigation and analysis to determine a point of
origin. Rather, Defendants contend that his conclusions regarding causation and
origin are unsupported by reliable methodology.
We disagree. The methodology he used to generate his opinion is sound. He
examined burn patterns, examined heat, fire, and smoke damage, considered this
evidence in light of testimony regarding the fire, and identified a point of origin. He
then considered as possible causes of the fire those devices that contained or were
connected to a power source and that were located at the identified point of origin.
He eliminated as possible sources those devices that were not in the area of origin or
that were not connected to a power source and contained no internal power source.
We can find nothing unreliable in this accepted and tested methodology. See, e.g.,
Weisgram v. Marley Co., 169 F.3d 514, 519 (8th Cir. 1999) (“Now, as a qualified
expert in fire investigation, Freeman was free to testify—as he did—that the burn and
smoke patterns and other physical evidence indicated that, in his opinion, the fire
started in the entryway and radiated to the sofa.”).
There is no suggestion that the space heater, found near the PowerChair, was
plugged in at the time of the fire, and Mr. Hickerson stated in his affidavit that it was
not plugged in. Defendants’ experts identified other appliances in the living room that
may have been connected to power sources at the time of the fire, but there is no
evidence that tends to place these other powered appliances specifically in the area of
origin. Defendants’ experts also emphasized the fact that Mr. Hickerson was a smoker
and that he admitted smoking on the night of the fire. As already noted, however, Mr.
Hickerson stated that he only smoked in a different room on the night of the fire.
Taking the evidence in a light most favorable to the plaintiff, as we must, it does not
appear that Mr. Schoffstall failed to eliminate any powered device in the area of origin
or any other suggested ignition source as a possible cause. Based on the identification
of a point of origin and the elimination of other possible causes, it is permissible for
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Mr. Schoffstall to testify as to the point of origin and to explain that he inferred
through process of elimination that the PowerChair was the cause of the fire.2
B. Summary Judgment
It is well-established under Missouri law that juries may infer causation and the
existence of product defects based on circumstantial evidence under a res ipsa-type
theory such that some product liability claims may be submitted to juries without
expert testimony that identifies specific product defects. Fain v. GTE Sylvania, Inc.,
652 S.W.2d 163, 165 (Mo. Ct. App. 1983) (holding that, based on the elimination of
other possible causes at the location of fire origin, a jury could infer that a television
was the cause of a fire and could also infer that a defect existed in the television that
caused the fire, because “common experience tells us that some accidents do not
ordinarily occur in the absence of a defect”); Henderson v. W.C. Haas Realty Mgmt.,
Inc., 561 S.W.2d 382, 386 (Mo. Ct. App. 1977) (holding that a jury could infer from
circumstantial evidence that wiring in a ceiling had caused a fire even though the
wiring was destroyed and not available for inspection because, “[o]f all the things
which ran through the floors and walls, the only thing which was capable of starting
a fire was the electrical wiring”); Lindsay v. McDonnell Douglas Aircraft Corp., 460
F.2d 631, 635, 637-40 (8th Cir. 1972) (finding federal law regarding strict liability
product defect claims under the Death on the High Seas Act, 46 U.S.C. § 761 et seq.,
to be “congruent” with Missouri law and holding that a jury could infer a product
defect in a McDonnell Douglas F4B navy fighter jet based on circumstantial evidence
that the jet had burst into flames during one of its maiden flights, even though the jet
2
To the extent that Mr. Schoffstall’s testimony regarding causation is based on
any purported analysis of product design rather than analysis of the fire scene, his
testimony is inadmissible. This distinction does not preclude him from testifying,
based on the fire scene, based on evidence of shorting in the PowerChair, and based
on the elimination of other possible sources (due to location or lack of power), that he
inferred the PowerChair was the cause of the fire.
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crashed into the ocean and experts could not examine the jet to identify a specific
defect).
To prove a product liability claim by inference from circumstantial evidence
without proof of a specific defect, a plaintiff must offer evidence that (1) tends to
eliminate other possible causes of the injury or property damage, (2) demonstrates that
the product was in the same basic condition at the time of the occurrence as when it
left the hands of the defendants, and (3) the injury or damage is of a type that normally
would not have occurred in the absence of a defect in the product. Fain, 652 S.W.2d
at 165; Lindsay, 460 F.3d 637-68. That having been said, “[a]n inference need not be
justified beyond all doubt and is not precluded by a mere possibility that the contrary
may be true.” Fain, 652 F.2d at 165. Rather, a case may be given to a jury if
circumstantial evidence is strong enough to support reasonable inferences necessary
to the plaintiff’s case free from speculation. The circumstantial evidence need not be
so strong as to compel the jury to rule in a plaintiff’s favor, and where multiple
inferences may be possible, it is for the jury rather than the court to resolve the factual
disputes.3
3
Defendants argue that the precedent from Missouri approving the submission
of res ipsa-type product defect claims is no longer good law because it preceded the
Supreme Court’s decision in Daubert. We find this argument misplaced. Daubert is
a case that deals with matters of federal procedure, namely, Federal Rule of Evidence
702 and the admissibility of expert testimony. It speaks only to the manner in which
federal courts determine whether experts are qualified and whether experts have
employed sound, reliable, and accepted methodology to generate their opinions. Once
evidence is properly admitted or excluded, Daubert does not deal with the substantive
question of whether the circumstantial evidence in any given case is sufficient to
permit a jury to infer a defect. State law—in this case, Missouri tort law—defines the
permissible inferences that a jury may draw from properly admitted evidence and the
strength of the inference required to create a triable question as to product defect and
causation. Daubert, in many cases, may serve to limit the evidence available to the
jury, but Daubert itself does not alter substantive Missouri law or preclude Mr.
Hickerson’s reliance on the theory of implied product defects approved by the courts
of Missouri.
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The three evidentiary points set forth above are useful tools to ensure that juries
are not allowed to speculate in the process of inferring a product defect. We
previously have recognized these limits on the use of the theory of inferred or implied
product defects. See Martin, 464 F.3d at 830-31 (holding that where plaintiff had
disposable lighters from multiple manufacturers, circumstantial evidence in that case
was insufficient to permit a jury to determine which manufacturer’s lighter had caused
a fire; also holding that circumstantial evidence available in that case was insufficient
to allow jury to determine whether fire was caused by product defect, product misuse,
or damage to a product subsequent to the manufacturers’ relinquishment of control);
Weisgram, 169 F.3d at 520-22 (holding expert testimony inadmissible as unreliable
and directing district court to enter a defense judgment notwithstanding the verdict
where circumstantial evidence was too weak to permit the jury to adopt the plaintiff’s
theory of causation or to infer the presence of a product defect).
Limitations of this type amount to an assessment of the strength of the
circumstantial evidence, and they exist in all cases involving circumstantial evidence,
not only in product liability cases. See, e.g., Scheele v. Am. Bakeries Co., 427 S.W.2d
361, 365 (Mo. 1968) (discussing inferences from circumstantial evidence in the
context of a claim of simple negligence). In Scheele, the Missouri Supreme Court
explained limitations on a jury’s use of circumstantial evidence:
Of course, a finding essential to recovery may be proved by
circumstantial evidence; but, our appellate courts have said repeatedly
that, in civil cases, the shown circumstances must be such that the facts
necessary to support the finding may be inferred and reasonably must
follow, that the existence of such facts may not depend upon guesswork,
conjecture and speculation, and that the evidence should have a tendency
to exclude every reasonable conclusion other than the one desired.
Although an inference need not be justified beyond all doubt and is not
precluded by a mere possibility that the contrary may be true . . ., the law
does not countenance the drawing of forced and violent inferences which
do not arise from a reasonable interpretation of the facts actually shown.
Id. (quoting Osterhaus v. Gladstone Hotel Corp., 344 S.W.2d 91, 94 (Mo. 1961)).
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Having determined the extent of the admissibility of Mr. Schoffstall’s
testimony, the question that remains is whether, viewed in a light most favorable to
the non-moving party, Mr. Schoffstall’s admissible testimony taken together with the
other evidence is sufficient to permit the jury to infer that the PowerChair contained
a product defect that existed when Defendants’ possessed the chair and that caused the
fire. Under Missouri law, we believe the jury may make such an inference.
Accepting as fact that the area of the oval burn pattern in the living room was
the location of the point of origin (as determined separately by Mr. Schoffstall and Mr.
Owens), and also taking as fact Mr. Schoffstall’s elimination of other possible sources
of ignition at that location, we are left with one powered appliance at the point of
origin, the PowerChair. “[C]ommon experience tells us that some accidents do not
ordinarily occur in the absence of a defect,” Fain, 652 S.W.2d at 165, and the
spontaneous ignition of a battery-powered, rechargeable wheelchair would be such an
accident. To the extent Defendants argue Mr. Schoffstall failed to eliminate certain
other possible sources of ignition, we believe the Defendants have created issues of
fact for resolution at trial. At trial, Defendants may succeed at showing that the other
appliances in the living room were powered and positioned at locations such that they
were possible sources of ignition relative to the point of origin. Taking the current
record in a light most favorable to Mr. Hickerson, however, it does not appear that any
of these possibly powered appliances were in the area of origin, and we find that a jury
could reasonably infer a PowerChair defect as the cause without resort to “guesswork,
conjecture and speculation.” Scheele, 427 S.W.2d at 365. Where the evidence shows
a point of origin and one source of ignition at that point, a jury need not resort to
speculation to infer the cause of the fire and the presence of a product defect.
Finally, we note that Defendants rely on a number of cases in which expert
testimony was excluded or a court found an inference of a product defect too
speculative. These cases are distinguishable on their facts based on the strength of the
inferences that reasonably could be drawn from the circumstantial evidence in each
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case. In Weisgram, 169 F.3d at 519, for example, we applied North Dakota law and
held that a jury could not infer a product defect in a fire case. There, expert testimony
was excluded and too much speculation was required to make the leap from the
circumstantial evidence to the conclusion that a product defect existed and caused the
fire. There was strong evidence to support a theory of causation different from the
plaintiff’s theory, and the plaintiff’s theory of causation was speculative and did not
enjoy the support of a reliable expert’s identification of a point of origin. Rather, it
depended on a detailed, problematic and speculative explanation of how a fire started
at one location and moved throughout the house along a specific route. We similarly
find the other authority cited by Defendants to be distinguishable on its facts and not
to stand for the general proposition that circumstantial evidence is inherently infirm
or incapable of proving the existence of a product defect. See, e.g., Winkler v.
Robinett, 913 S.W.2d 817, 821 (Mo. Ct. App. 1995) (“[T]o make a submissible case
on the issue of causation, such circumstantial evidence must fairly warrant the
conclusion that the fire did not originate from some other cause.”); Hills v. Ozark
Border Elec. Coop., 710 S.W.2d 338, 341 (Mo. Ct. App. 1986) (reversing a jury
verdict against an electric company in a case involving a fire allegedly of electrical
origin, and stating, “Plaintiffs made no attempt to present evidence that might have
eliminated other conditions that could have caused the fire”).
Because we hold Mr. Schoffstall’s testimony admissible to the extent discussed
herein, and because Mr. Hickerson has presented sufficient evidence to support a
plaintiff’s verdict under the theory of Fain, we reverse the grant of summary judgment
and remand for further proceedings not inconsistent with this opinion.
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