ACCEPTED
03-14-00131-CV
5531395
THIRD COURT OF APPEALS
AUSTIN, TEXAS
6/3/2015 2:57:57 PM
JEFFREY D. KYLE
CLERK
NO. 03-14-00131-CV
THIRD COURT OF APPEALS FILED IN
3rd COURT OF APPEALS
AUSTIN, TEXAS AUSTIN, TEXAS
6/5/2015 8:28:00 AM
ZBRANEK CUSTOM HOMES, LTD. JEFFREY D. KYLE
Clerk
Appellant
v.
JOE ALLBAUGH AND DIANE ALLBAUGH
Appellees
Appealed from the 419th Judicial District Court of
Travis County, Texas
__________________________________________________________________
POST-SUBMISSION BRIEF
OF APPELLANT ZBRANEK CUSTOM HOMES, LTD.
__________________________________________________________________
David E. Chamberlain
Tim Poteet
Erin Westendorf-Boyd
CHAMBERLAIN ♦ McHANEY
301 Congress Avenue, 21st Floor
Austin, Texas 78701
(512) 474-9124
(512) 474-8582 (Facsimile)
dchamberlain@chmc-law.com
tpoteet@chmc-law.com
ewestendorf@chmc-law.com
ATTORNEYS FOR APPELLANT
i
TABLE OF CONTENTS
Index of Authorities ............................................................................................ iii
Introduction ...........................................................................................................1
Summary of Allbaughs’ expert testimony ............................................................2
Texas Supreme Court’s Analysis in
Gharda USA, Inc. v. Control Solutions, Inc……………………………...3
Application of Gharda to this case ......................................................................8
Certificate of Compliance .................................................................................. 11
Certificate of Service ......................................................................................... 12
ii
INDEX OF AUTHORITIES
Cases
Gharda USA, Inc. v. Control Solutions, Inc.,
No. 12-0987 (Tex. May 8, 2015) .............................................................. 1, 3-8, 10
TXI Transp. Co. v. Hughes
306 S.W.3d 230 (Tex. 2010) ..................................................................................9
iii
POST-SUBMISSION BRIEF
Introduction
Appellant presents this supplemental post-submission brief because the Texas
Supreme Court very recently published an opinion in Gharda USA, Inc. v. Control
Solutions, Inc., No. 12-0987 (Tex. May 8, 2015). Gharda was under review at the
time of filing of Appellant’s Reply Brief, as noted in page 7 of the Reply Brief. The
Gharda opinion bears directly on one of the issues on appeal, namely:
Whether any evidence of the cause of the fire, and the element of
causation for negligence, is legally insufficient, or, alternatively,
factually insufficient, when the Allbaughs’ expert witnesses’ theories
of fire causation had an “analytical gap” due to lack of sufficient
evidence of temperatures and heat transfer rates, and the experts did not
eliminate potential alternative causes of the fire, including specifically
electrical failure, among others.
In Gharda, the Texas Supreme Court ruled that expert testimony of several
expert witnesses was improperly admitted where the testimony was interdependent
and based on unreliable evidence. In this brief, Appellant will demonstrate that, just
like the expert witnesses in Gharda, the Allbaughs’ expert witnesses presented
interdependent opinions at trial, based on unreliable opinions and testimony of other
experts. Therefore, all of the Allbaughs’ expert testimony was unreliable, and there
was legally insufficient evidence of proximate cause, an essential element of the
Allbaughs’ claims. As discussed in Appellant’s Brief, an expert’s testimony must
be reliable.
1
Summary of Allbaughs’ expert testimony
The Allbaughs contended the fireplace construction had a gap in the stucco
structure surrounding at the top of the firebox that left combustible material exposed
above the firebox.1 However, there was no evidence that any such gap existed
before the fire. To the contrary, eyewitness testimony affirmed there was no gap in
the fireplace as constructed.2
The Allbaughs’ engineer expert, Paul Carper, questioned whether there was a
gap in the stucco that left exposed OSB.3 The Allbaughs’ fire cause and origin
expert, Michael Chaney, testified that the same fire probably would have occurred
that same evening whether or not there was a gap in the stucco that left OSB exposed,
“given the heat source from a burning fire.”4 Chaney assumed the fire started at a
particular point, then reasoned backward to assume that the temperature at that
location was sufficient to start the fire—a “reverse cognitive analysis” as he
characterized it, 5 and an obvious logical fallacy.
The Allbaughs did not submit reliable or relevant evidence to support any of
their theories of what actually caused the fire, nor did their experts rule out
1
RR 7:200; RR 7:228; RR 7:243.
2
RR 28:223 (Lackey Depo. p. 90, lines 3-9); RR 10:24, lines 6-8; RR 10:101, lines 3-8; RR
7:115, lines 2-4; RR 7:122, lines 12-19; RR 7:192, lines 6-8; RR 7:126, lines 4-25, RR 7:127,
lines 1-2.
3
RR 6:76-78.
4
RR 7:37, lines 5-19.
5
RR 7:16, lines 2-9.
2
alternative causes of the fire. Instead, the Allbaughs’ experts offered only conjecture
and speculation. They presented interdependent opinions that stacked unreliable
opinions on top of one another. They performed no test or calculation, nor undertook
any other type of reviewable, reliable analysis to support their hypotheses about the
cause of this fire. In short, the Allbaughs’ evidence of causation was legally
insufficient.
Texas Supreme Court’s Analysis in Gharda USA, Inc. v. Control Solutions, Inc.
On May 8, 2015, the Texas Supreme Court published an opinion in a fire case
with very similar issues regarding expert testimony, Gharda USA, Inc. v. Control
Solutions, Inc., No. 12-0987 (Tex. May 8, 2015). Gharda USA involved a fire in a
warehouse that was used to formulate pesticides and insecticides. The formulation
of these products required melting of a chemical called chlorpyrifos, manufactured
by Gharda USA, in an industrial oven called a “hot box.” Plaintiffs alleged that the
fire was caused by contamination of chlorpyrifos in the manufacturing process,
causing the chlorpyrifos to release chemicals in the hot box that spontaneously
combusted.
Plaintiffs in Gharda presented numerous experts at trial in an effort to prove
causation. First, they presented the Harris County Fire Marshal, Harold “Buddy”
Rice, who was the first fire investigator on the scene. He performed two physical
inspections of the scene, only, and performed no testing of any sort. He concluded,
3
based on burn patterns, that the fire originated in the hot box. He opined that some
buildup of vapors in the hot box caused the fire. However, he admitted that he did
not investigate and did not know what the vapor could have been or how it would
have ignited.
Next, Plaintiff presented a retained fire origin investigator, Salvador
“Sammy” Russo, who tested samples of gases from the burned drums of chlorpyrifos
and opined that a volatile gas was present. Based on his investigation, he opined
that an ignitable vapor in the hot box exploded and the ensuing fire spread
throughout the warehouse. Like Rice, however, he could not testify as to what the
vapor was, the source of the vapor, the quantity of the vapor, or whether the vapor
could reach its flammability limit or an ignition source. Russo deferred to chemists
on these issues.
Next, the Plaintiffs presented Dr. Armstrong, a chemist. He performed
Russo’s GC-MS testing of the gases and developed an ignition theory. He opined
that several volatile gases were present in the burned drums. He began his search
for an ignition theory with the assumption that Rice and Russo were correct in
placing fire origin in the hot box. He ultimately opined that the chlorpyrifos was
contaminated with a flammable substance called EDC, which caused a process
called exothermic decomposition, which created vapors that spontaneously
combusted or were ignited by static electricity. However, Armstrong never tested
4
nor could he testify as to the amount of EDC contamination that is required to cause
exothermic decomposition, the amount of EDC contamination in the drums, the
concentration of vapors that would have been necessary under his ignition theory,
the temperature at which spontaneous combustion would occur, or how a static
charge could develop in the hot box. Armstrong testified that he did not need to test
his theory.
Further, Plaintiff presented another chemist named Dr. Cheremisinoff. He
examined Gharda’s manufacturing process and testified that it was “possible” that
flaws in Gharda’s manufacturing process resulted in EDC contamination, because
Gharda used humans to distill the chemical rather than using a computer system to
do so. He testified that drums contaminated with EDC could have exploded if a
vapor cloud of 6% gas formed in the hot box. This theory was based on the
assumption that the drums were sufficiently contaminated to reach that amount of
vapor. He admitted that there was no evidence of the amount of any actual
contamination of the drums.
In sum, Plaintiffs presented two fire experts who opined as to where the fire
started (in the hot box), but who relied on other experts (Armstrong and
Cheremisinoff) as to how the fire could have started there. Armstrong and
Cheremisinoff assumed that the fire started in the hot box, and testified that EDC
contamination could have started the fire. Armstrong assumed there was sufficient
5
EDC contamination to cause exothermic decomposition, but did no calculations,
research, or tests to determine what a sufficient amount of contamination would be.
Cheremisinoff testified that it was possible that Gharda’s manufacturing process
could have resulted in EDC contamination, but did not know the actual amount of
EDC in the drums.
The Texas Supreme Court pointed out that “whether an expert’s testimony is
reliable is based on more than whether the expert’s methodology satisfies the
Robinson factors.”6 Reliable expert testimony must be based on a probability
standard, rather than on mere possibility.7 Expert testimony is unreliable “if there is
too great an analytical gap between the data on which the expert relies and the
opinion offered."8
The court was particularly critical of the opinion of Cheremisinoff, for a
number of reasons, any of which "would be sufficient to support a conclusion that
Cheremisinoff lacked a reliable foundation" on its own.9 The court confirmed that
expert testimony must be based on reasonable probability, not mere possibility.10
The basis of his opinion was "the byproduct of possibilities."11 Further, his opinion
that the manufacturing process "could have" resulted in contamination was
6
Gharda, p.14.
7
Gharda, p.15.
8
Gharda, p.15.
9
Gharda, p.16.
10
Gharda, p.16.
11
Gharda, p.17.
6
speculation and did not establish that it did so in this case.12 He was unable to testify
to the amount of actual contamination in the drums, but reasoned that there must
have been a sufficient amount of contamination because there was an explosion,
which the court found improper.13 The court found his testimony suffered from
analytical gaps and was connected only by his own ipse dixit.14 He assumed facts
that he was unable to determine.15
According to the Court, Armstrong’s testimony suffered from the same
deficiencies as Cheremisinoff.16 Armstrong was never able to quantify the amount
of contamination in the drums.17 Armstrong never tested nor could he testify as to
the amount of EDC contamination that is required to cause exothermic
decomposition, the amount of EDC contamination in the drums, the concentration
of vapors that would have been necessary under his ignition theory, the temperature
at which spontaneous combustion would occur, or how a static charge could develop
in the hot box.18 Without this information Armstrong had not even identified facts
or factors consistent with his theory.19 Because the testimony of Armstrong and
12
Gharda, p.17.
13
Gharda, p.18.
14
Gharda, p.18.
15
Gharda, p.18-19.
16
Gharda, p.19.
17
Gharda, p.19.
18
Gharda, p.20.
19
Gharda, p.20.
7
Cheremisinoff was unreliable, then the testimony of Rice and Russo, which relied
on their testimony, was likewise unreliable.20
Application of Gharda to this case
The expert testimony presented by Plaintiffs in both Gharda and the subject
case is the same in its interdependent nature and contains the same flaws criticized
by the Texas Supreme Court.
Like Armstrong and Cheremisinoff, one of the Allbaughs’ experts, Michael
Chaney, assumed a defect in the installation of the fireplace—a gap in the
surrounding stucco structure that left combustible material exposed above the
firebox—and then assumed that it caused the fire because there was a fire. Similar
to Armstrong and Cheremisinoff, he did not test to find out what the actual
temperatures were at the locations where he assumed the fire started or the rate of
heat transfer from the firebox to the combustible material to prove that any alleged
defect in the installation of the fireplace caused the damage to occur; consequently,
there is no evidence that the temperatures were sufficient to cause a fire in the
manner and at the location to which Chaney testified.
Chaney’s testimony is strikingly similar to the flawed testimony of
Armstrong. First, he began his causation analysis by making certain assumptions
that had no basis. Chaney called this a “reverse cognitive analysis”: “it's a kind of
20
Gharda, p.21.
8
reverse concept in doing it that way, to arrive at the numbers that had to have been
present to match all of the data that we got, the witness observations, the ignition
sources in the area, the eliminations of those other potentials."21 Like Armstrong,
Chaney believed he did not need to do any type of testing of his theory, even though
he admitted that heat conduction tests could be done, and would have been more
reliable than his cognitive analysis.22
Like Cheremisinoff, another of the Allbaughs’ experts, Paul Carper, could not
testify that any gap or a false chimney probably existed between the stucco and the
firebox, but only testified that it was possible.23 Just like the expert evidence in
Gharda, this conclusory testimony lacks objective, evidence-based support and
merely assumes facts that are unable to be determined. The experts’ testimony
contains “analytical gaps,” and expert testimony is unreliable when “there is simply
too great an analytical gap between the data and the opinion proffered.” TXI Transp.
Co. v. Hughes, 306 S.W.3d 230, 239 (Tex. 2010).
Like the experts in Gharda, the Allbaughs’ experts presented no facts or
evidence to answer a crucial question raised by their theory of causation—how the
material used to frame the fireplace OSB could have sufficiently heated to ignite or
21
RR 7:20, lines 2-6.
22
RR 7:21, lines 17-18; RR 7:23, lines 7-10; RR 7:71, line 23 to 72, line 6. Zbranek offered
evidence of actual test results that disproved this “reverse cognitive analysis,” but the Court
erroneously refused to admit it. This is one of the points of error raised by Zbranek on appeal.
23
RR6:152, line 20 to 153, line 7; RR6:160, lines 13-19; RR 6:76-78.
9
combust in the conditions present, the temperature the OSB heated to, and how it
would have had enough available oxygen to ignite. Because the experts did not
conduct any testing or calculations to support their theories, and did not present any
reliable facts to support their theories, their opinions were subjective, conclusory,
and are not entitled to probative weight.
There is one important difference between Gharda and the subject case,
however. In Gharda, the electrical engineer expert testified that he had ruled out all
electrical causes of the fire, and no party challenged that testimony.24 Unlike
Gharda, the Allbaughs’ retained electrical engineer, Mark Goodson, specifically
testified that he could not rule out an electrical failure as a cause.25 The Allbaughs’
other experts, who were not electrical engineers, deferred to Goodson’s opinion on
all electrical issues.26
In sum, just like the expert witnesses in Gharda, the Allbaughs’ expert
witnesses presented unreliable interdependent opinions at trial, based on unreliable
opinions and testimony of others. Therefore, all of the Allbaughs’ expert testimony
was unreliable, and there was legally insufficient evidence of proximate cause, an
essential element of the Allbaughs’ claims.
24
Gharda, p. 5.
25
RR 4:62-3; RR 4:67, lines 21-4; RR 4:74-5.
26
RR 5:117; RR 6:218.
10
WHEREFORE, PREMISES CONSIDERED, Appellant Zbranek Custom
Homes, Ltd., respectfully asks the Court to review and reverse the judgment of the
trial court, and render judgment that the Allbaughs and Chubb Insurance Company
take nothing. In the alternative, the Court should reverse the judgment of the trial
court and remand this case for a new trial on all issues. Appellant Zbranek Custom
Homes, Ltd., respectfully prays for all other and further relief to which it may be
entitled at law or in equity.
Respectfully submitted,
CHAMBERLAIN ♦ McHANEY
301 Congress Avenue, 21st Floor
Austin, Texas 78701
(512) 474-9124
(512) 474-8582 (fax)
tpoteet@chamberlainmchaney.com
dchamberlain@chamberlainmchaney.com
By: /s/ Tim Poteet
TIM POTEET
State Bar No. 16170300
DAVID E. CHAMBERLAIN
State Bar No. 04059800
ATTORNEYS FOR APPELLANT
CERTIFICATE OF COMPLIANCE
This document complies with typeface requirements of Tex. R. App. P. 9.4(e). It
was prepared in a conventional typeface of 14-point for text and 12-point for
footnotes. This document also complies with Tex. R. App. P. 9.4(i) (2)(B), (C) and
contains 2,364 words, excepting the portions listed in Tex. R. App. P. 9.4(i)(1).
By: /s/ Tim Poteet
TIM POTEET
State Bar No. 16170300
11
CERTIFICATE OF SERVICE
I hereby certify by my signature below that a true and correct copy of the
foregoing has been forwarded to counsel of record as indicated via Electronic Court
Filing, this 3rd day of June, 2015:
Suzanne C. Radcliff
Cozen O’Connor
1717 Main Street, Suite 3400
Dallas, Texas 75201-7335
scradcliff@cozen.com
By: /s/ Tim Poteet
TIM POTEET
State Bar No. 16170300
12