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From Products Liability Law Daily, November 14, 2014

$21,000 verdict against Freightliner for fire caused by defective truck upheld

By John W. Scanlan, J.D.

A jury verdict holding a truck manufacturer liable for a fire that destroyed a machine shop and several pieces of equipment in it was affirmed by the U.S. Court of Appeals for the Tenth Circuit in an unpublished decision. The Tenth Circuit also upheld the district court’s decision to permit the testimony of a fire-origin expert and a fire-causation expert and to exclude lay testimony by representatives of the buyer on the value of the property destroyed (Kechi Township v. Freightliner, LLC, November 13, 2014, Holmes, J.).

Background. A fire destroyed a machine shop owned by Kechi Township, along with the machine shop’s contents, which included a Freightliner truck, a tractor, three mowers, a utility vehicle, a wheel loader, and a dump truck. After an investigation into the fire, Kechi brought product liability claims against Freightliner, LLC, asserting that a defect in the truck caused the fire. Freightliner removed the case from Kansas state court to federal court. The district court denied Freightliner’s pre-trial motions to exclude the testimony of Don Birmingham, a fire-origin expert, and Jim Martin, a fire-causation expert. During the trial, the court granted Freightliner’s motion to exclude the testimony of James Day, who was in charge of the machine shop, on the value of the real estate and property stored in the shop except for the utility vehicle, the property in that vehicle, and certain shop supplies; it also excluded the testimony of Kechi Township Board trustee Lee Caster on the value of the real estate. The jury found Freightliner liable and awarded Kechi $21,000 in damages. Freightliner renewed its earlier motion for judgment as a matter of law (JMOL), which was denied. Freightliner appealed the court’s decisions to deny JMOL and to allow the testimony of Birmingham and Martin, and Kechi appealed the court’s exclusion of the damage testimony of Day and Caster.

Causation/strict liability. The trial court properly denied Freightliner’s motion for JNOV because Kechi had established at trial each of the three elements for strict liability for the manufacture of a product under Kansas law. The causal link between the defect and the injury was established by the testimony of the fire-causation expert that the fire was the result of the looseness of two nuts in the starter, which created heat that degraded the insulation and led to a short, which caused the fire. The looseness of the nuts was not one of several causes that could have independently produced the fire, but the first event that started a natural and continuous sequence that led to the fire; Freightliner’s argument that the short was an intervening cause that severed the causal connection between the looseness of the nuts and the fire would lead to absurdity. The testimony of the fire-origin expert excluding other potential sources of the fire was more than sufficient to take the issue of causation to the jury. He followed a scientific process in his investigation and offered a reasonable explanation why he traced the fire to the truck rather than another source.

Kechi also established that the condition of the product was unreasonably dangerous. Based on the testimony of an investigator for Delco Remy, the company that manufactured the truck’s starter, the jury could reasonably have inferred that loose connections in the starter created the risk of fire, and there was no question that an ordinary consumer buying a truck does not expect it to catch fire.

Finally, the Tenth Circuit determined that Kechi provided sufficient evidence for the jury to have concluded that a defective condition existed in the truck at the time it left Freightliner’s control. From the evidence, including the testimony of the Delco Remy investigator reading from a Delco bulletin to purchasers of its starters, the jury could find that Freightliner had improperly used a bus bar (a wide electrical conductor) and a capped nut in its starter against the instructions of Delco. Although Freightliner highlighted the fact that Kechi’s fire-causation expert opined that the connection was likely not loose when Kechi purchased the truck, the court observed that Kechi had not argued that the connection was not loose when it bought the truck but that a design defect existing when it bought the truck led to the loose connection. It was reasonable for the fire-causation expert to rely upon an exemplar cable in formulating his theory. Further, the testimony of the machine shop manager that nothing had happened to the truck since Kechi bought it, aside from routine maintenance and the replacement of the clutch, supported Kechi’s theory that the defect came with the truck. Freightliner observed that a third party had modified the truck before Kechi bought it, but its assertion that these modifications undoubtedly required re-routing of the wiring was speculative.

Expert testimony. The Tenth Circuit upheld the district court’s decision to allow Kechi’s fire-origin expert and fire-causation expert to testify. The opinions of the fire-origin expert were reliable, as he had followed a methodical and scientific process and his failure to interview two employees of the machine shop did not make his investigation less than thorough. Freightliner presented no authority for the assertion that an expert must interview every potential source of information for his or her opinion to be considered reliable. Freightliner had the opportunity to present its concerns about the thoroughness of his investigation through cross-examination and its closing argument.

The fire-causation expert’s opinions were also found to be reliable, in that he presented a detailed theory about how the fire started that was based on his training, his diligent inspection of the scene, and his use of trustworthy exemplars. Despite Freightliner’s argument, he was not required to consult design drawings of the truck, and his method of studying the engine of the truck at issue and comparing it to the engine of an exemplar truck was a plausible alternative method. His reliance upon an exemplar cable that had a part number consistent with the truck’s cable because it had the same configuration and had “Freightliner” on it was sufficiently reliable under Daubert. Freightliner asserted that he had not excluded other potential sources of fire outside the truck, but the expert was there to testify on the cause of the fire, not its origin, and there was no authority suggesting that a “division of labor” by different experts was inappropriate.

Lay opinion testimony. The district court properly excluded most of the lay opinion testimony proffered by Kechi on damages because the testimony was actually expert testimony and the witnesses were not qualified as experts. The heavy equipment that was destroyed in the fire consisted of large, specialized, and expensive pieces of equipment, and the district court’s assessment that the testimony proffered by the machine shop manager was too complex to be presented by a lay witness was within its discretion. As for the real estate, although the Tenth Circuit found that it was not particularly complex, it was complicated enough for the district court’s decision to exclude lay opinion testimony on it not to be an abuse of discretion either. The court observed that under the Federal Rules of Evidence, landowner testimony about the value of land is generally considered to be expert opinion. The manager’s indication that he would be relying upon a third-party appraisal for his opinion was further indication that his testimony was not fit for admission as lay opinion testimony.

The case numbers are 12-3118 and 12-3134.

Attorneys: Jennifer M. Hill (McDonald Tinker Skaer Quinn & Herrington, PA) for Kechi Township, and Employers Mutual Casualty Co. Alan Epstein (Hall & Evans), and Matthew K. Holcomb (Hinkle Law Firm LLC) for Freightliner, LLC.

Companies: Kechi Township; Employers Mutual Casualty Co.; Freightliner, LLC

MainStory: TopStory DesignManufacturingNews ExpertEvidenceNews DamagesNews MotorVehiclesNews ColoradoNews KansasNews NewMexicoNews OklahomaNews UtahNews WyomingNews

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