Pro Service Auto etc v. Lenan Corp. ( 2006 )

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
________________
No. 06-1324
________________
Pro Service Automotive, L.L.C.; *
Pro Parts Automotive, L.L.C.; *
Townes E. Staton; Marcia Staton, *
*
Appellants, * Appeal from the United States
* District Court for the
v. * Western District of Missouri
*
Lenan Corp., *
*
Appellee. *
________________
Submitted: October 16, 2006
Filed: November 22, 2006
________________
Before WOLLMAN, RILEY and GRUENDER, Circuit Judges.
________________
GRUENDER, Circuit Judge.
Townes and Marcia Staton and two businesses they own, Pro Service
Automotive, L.L.C. and Pro Parts Automotive, L.L.C. (collectively, “the Statons”),
appeal the district court’s1 adverse grant of summary judgment on their products
liability claim against heater manufacturer Lenan Corp. For the reasons discussed
below, we affirm.
1
The Honorable Gary A. Fenner, United States District Judge for the Western
District of Missouri.
I. BACKGROUND
In October 2003, the Statons purchased a waste oil heater from Wisconsin
manufacturer Lenan for the commercial automotive garage building in Carrollton,
Missouri, housing Pro Service Automotive and Pro Parts Automotive. The heater was
essentially comprised of a cabinet that contained an internal combustion chamber, heat
exchanger tubing and a fan to blow ambient air across the heat exchanger tubing. The
combustion chamber had an atomizing fuel nozzle at one end designed to generate a
steady contained flame. The combustion chamber wall opposite the fuel nozzle and
flame, known as the “target wall,” was partially covered with flame-resistant
“firebrick” material, but the remainder of the target wall was exposed steel. Hot
exhaust gases from the combustion chamber would flow through the heat exchanger
tubing and transfer heat to the air flowing over the outside of the tubes, and the air
would then carry the heat into the environment. A limit switch located on the outer
surface of a combustion chamber side-wall was set to shut down the burner if the
cabinet air temperature exceeded 200 degrees Fahrenheit.
The heater was designed to burn any combination of waste motor oil,
transmission oil and hydraulic fluid. These waste oils each have different physical
properties, and the amount of each type of waste oil available to the user often varies
over time. Therefore, unlike a typical heater that is designed to burn one type of fuel
with consistent physical properties, waste oil heaters often need adjustments to enable
consistent burning as the available waste oils change. An improperly adjusted heater
might lose its flame or create a flame that impinges on the target wall of the
combustion chamber. The Lenan heater provided for manual adjustments based on
the user’s “eyeball” observation of the flame through a viewing port. Lenan’s
technical staff approved hanging the heater from the automotive garage ceiling, a
location where frequent manual adjustments might be expected to prove difficult to
execute.
-2-
In December 2003 and January 2004, the Statons contacted Lenan several
times, complaining that the heater often backfired or lost its flame. Lenan’s technical
staff recommended several adjustments, which the Statons state they implemented as
instructed. On February 29, 2004, the building burned down. The Statons claimed
that the heater caused the fire and filed suit against Lenan under theories of negligent
design, strict liability for defective design, and breach of implied warranty.
The Statons presented opinions from two experts, Carl Welcher and Alan
Bullerdiek. Welcher, a fire origin and causation expert, examined the fire scene and
opined that the fire originated at the heater. Welcher’s examination of the heater
revealed a large hole burned through the target wall of the combustion chamber, in the
area not covered by firebrick. Welcher offered no opinion as to any specific defect
in the heater that might have caused the hole or the fire.
Bullerdiek, a chemical engineer and heating equipment expert, offered an
opinion regarding defect and causation. Regarding causation, he simply stated that
the hole in the target wall “resulted in loss of containment intended to prevent
excessive thermal radiation, escape of combustion gases, and/or hot particulate matter
to surrounding combustibles, causing the fire.” Bullerdiek’s report focused on the
absence of a temperature-limiting sensor on the back of the target wall as a design
defect.
In addition, the Statons advanced a statement by Lenan’s service manager,
Randy Dean, as proof of a design defect. Dean was identified in Lenan’s Fed. R. Civ.
P. 26 initial disclosures as someone having “knowledge regarding the design,
manufacture and sale of the heater.” Lenan sent Dean to inspect the fire scene and the
remains of the heater. When asked for his opinion during his deposition, Dean stated
that the hole in the combustion chamber “probably” would not have formed if the
entire target wall had been covered with firebrick material.
-3-
In ruling on Lenan’s motion for summary judgment, the district court first ruled
on the admissibility of expert opinions. The district court found Welcher’s fire origin
opinion admissible but adopted the Statons’ concession that Welcher was not qualified
to offer an opinion “as to how or why the large hole in the target wall of the
combustion chamber caused heat to radiate or escape from the Lenan heater.” The
district court also found that Welcher was not qualified to testify about what caused
the hole itself. The district court excluded Bullerdiek’s opinion on Daubert2 grounds
because Bullerdiek produced no testing, drawings, models or other evidence to
demonstrate the utility or feasibility of placing a temperature-limiting sensor on the
back of the target wall. Finally, the district court applied Daubert to Dean’s statement
regarding firebrick on the target wall and excluded his opinion as unreliable. In the
absence of admissible expert testimony to prove a defect, the district court granted
summary judgment on all claims to Lenan.
On appeal, the Statons have expressly abandoned Bullerdiek’s theory that the
absence of a temperature-limiting sensor on the back of the target wall is a design
defect. However, the Statons argue that the district court erred in excluding the
causation portion of Bullerdiek’s opinion. In addition, the Statons argue that Dean’s
statement that firebrick probably would have prevented the hole in the target wall is
admissible as the admission of a party-opponent and, therefore, not subject to the
expert-testimony requirements of Daubert. The Statons contend that if this evidence
of causation and defect is admitted, they have presented a submissible case of strict
liability for defective design and breach of implied warranty.3
2
Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579 (1993).
3
The Statons have expressly abandoned their negligent design claim on appeal.
-4-
II. DISCUSSION
We review a grant of summary judgment de novo, affirming if the record shows
that there is no genuine issue of material fact and the prevailing party is entitled to
judgment as a matter of law. Peitzmeier v. Hennessy Indus., Inc., 97 F.3d 293, 298
(8th Cir. 1996). We may affirm the district court’s grant of summary judgment on any
ground supported by the record. White v. Moulder, 30 F.3d 80, 82 (8th Cir. 1994).
We apply Missouri law in this diversity action. Lindsay v. Safeco Ins. Co. of Am., 447
F.3d 615, 617 (8th Cir. 2006).
Under Missouri law, the plaintiff in a strict products liability or implied
warranty claim must show, inter alia, that the alleged defect caused the claimed
damages. Hills v. Ozark Border Elec. Coop., 710 S.W.2d 338, 339 (Mo. Ct. App.
1986) (per curiam) (“Proof that a plaintiff’s damages were caused by a defect in the
product is an essential element of a plaintiff’s case under a product liability theory.”);
Green v. Ralston Purina Co., 376 S.W.2d 119, 124 (Mo. 1964) (discussing causation
as an element of a common law implied warranty claim); Mo. Approved Jury Instr.
(Civil) 25.04, 25.03, 25.08 (6th ed.) (setting forth the elements of claims for strict
products liability and for breach of implied warranties of fitness for a particular
purpose and merchantability, respectively). Although expert testimony is not
necessarily required in a strict products liability case, Tune v. Synergy Gas Corp., 883
S.W.2d 10, 14 (Mo. banc 1994), expert testimony is necessary where “the lay jury
[does] not possess the experience or knowledge of the subject matter sufficient to
enable them to reach an intelligent opinion without help,” Siebern v. Missouri-Illinois
Tractor & Equip. Co., 711 S.W.2d 935, 939 (Mo. Ct. App. 1986). In this case, due
to the complexities involved in linking the hole in the internal combustion chamber
to any release of excess heat to the environment, as described in detail below, a lay
jury would not possess the experience or knowledge necessary to determine causation.
Therefore, Bullerdiek’s causation opinion must be admissible in order for the Statons’
-5-
claims to survive summary judgment.4 We review the district court’s exclusion of
Bullerdiek’s expert opinion for abuse of discretion. Fireman’s Fund Ins. Co. v.
Canon U.S.A., Inc., 394 F.3d 1054, 1057 (8th Cir. 2005).
Bullerdiek’s report stated, without elaboration, that the hole in the target wall
“resulted in loss of containment intended to prevent excessive thermal radiation,
escape of combustion gases, and/or hot particulate matter to surrounding
combustibles, causing the fire.” Translated into plain English, this appears to be a
statement that the hole allowed hot gases, flame and radiant heat to escape directly
into the environment and start the fire. Lenan deposed Bullerdiek extensively
regarding his causation opinion. As described above, the heater was designed so that
the hot gases produced in the combustion chamber would pass through heat exchanger
4
Lenan argues that the Statons did not advance Bullerdiek’s causation opinion
to the district court and that reliance on that opinion should be precluded on appeal.
However, the Statons’ opposition to Lenan’s summary judgment motion stated,
“Plaintiffs readily admit that Mr. Welcher is not qualified to testify as to how or why
the large hole in the target wall of the combustion chamber caused heat to radiate or
escape from the Lenan heater. That is the province of plaintiffs’ engineering expert,
Alan Bullerdiek.” This was sufficient to put Bullerdiek’s causation opinion before the
district court.
Similarly, the Statons contend that Lenan did not raise a Daubert challenge to
Bullerdiek’s causation opinion to the district court and that such a challenge should
be precluded on appeal. However, Lenan stated in its summary judgment motion,
“[T]he plaintiffs’ expert witness, Alan Bullerdiek’s, opinion about the cause and
origin of the fire are inadmissible, because . . . he does not have the factual basis to
testify to such an opinion.” This was sufficient to put a Daubert challenge to
Bullerdiek’s causation opinion before the district court.
The district court’s order granting summary judgment relied on the absence of
admissible expert testimony regarding a defect and, therefore, did not need to reach
causation. However, we may affirm the district court’s grant of summary judgment
on any ground supported by the record. White, 30 F.3d at 82.
-6-
tubes, where some of their heat would be transferred to air blown across the tubes and
into the environment. The combustion-product gases then would be expelled through
a vent. Notably, the hole in the target wall of the combustion chamber only allowed
combustion-product gases to escape into an adjacent chamber, the “collector,” that
was already part of the heat exchanger flow path—in other words, the hole did not
allow any combustion-product gases or flame to escape the designed containment path
within the heating unit. On the basis of these facts, Bullerdiek was forced to admit
that he could not opine to any degree of probability that combustion-product gases or
flames escaped the heater to cause the fire. Bullerdiek Depo. at 103.
Bullerdiek did continue to assert in the deposition that the internal hole could
have caused the fire indirectly. He testified that, because the hole allowed
combustion-product gases to bypass or “short circuit” the first set of heat exchanger
tubes, where they would have transferred away some of their heat, the collector and
the heat exchanger tubes downstream from the collector would contain combustion-
product gases that were hotter than usual. Bullerdiek asserted that this change would
alter the internal temperature profile throughout the heater, potentially causing
localized hot spots that could start a fire by either (a) overheating a section of the
airstream blowing through the heater into the environment, or (b) conveying excess
heat to the outer heater cabinet, which would then radiate it directly to nearby
surfaces. Id. at 111-130.
The opinion of a qualified expert witness is admissible if (1) it is based upon
sufficient facts or data, (2) it is the product of reliable principles and methods, and (3)
the expert has applied the principles and methods reliably to the facts of the case. Fed.
R. Evid. 702. To evaluate an expert’s theory against these requirements, courts are
to consider factors such as:
-7-
(1) whether the theory or technique can be (and has been) tested; (2)
whether the theory or technique has been subjected to peer review and
publication; (3) whether the theory or technique has a known or potential
error rate and standards controlling the technique’s operation; and (4)
whether the theory or technique is generally accepted in the scientific
community.
Smith v. Cangieter, 462 F.3d 920, 923 (8th Cir. 2006) (citing Daubert, 509 U.S. at
592-94).
Bullerdiek provided no testing or other engineering analysis to support his
causation opinion. He relied on his expertise to state that the hole could cause a
localized temperature rise at undefined points inside the heater but made no attempt
to calculate where or how hot these “hot spots” would be, much less identify a known
or potential error rate for his analysis. He then theorized that these unlocated and
unquantified hot spots could result in a series of radiative or convective transfers of
heat through the heater cabinet that eventually would reach the environment in
sufficient amounts to ignite nearby combustibles. He provided no testing or
mathematical analysis to quantify, even as a rough estimate, how much heat would be
transferred through these processes and how it would compare to the heat necessary
to ignite the combustibles. The causation problem is further complicated by
Bullerdiek’s opinion that the internal hole had been present during heater operation
for “potentially weeks or months, even” before the fire occurred. Bullerdiek Depo.
at 105. In lieu of any analysis or testing to show that the heater, after functioning
perhaps for weeks with a hole in the target wall, could actually ignite nearby
combustibles, Bullerdiek offered only vague theorizing based upon general principles.
“Where ‘opinion evidence . . . is connected to existing data only by the ipse dixit of
the expert,’ a district court ‘may conclude that there is simply too great an analytical
gap between the data and the opinion proffered.’” Cangieter, 462 F.3d at 924
(quoting Gen. Elec. Co. v. Joiner, 522 U.S. 136, 146 (1997)). Such is the case here.
-8-
In the absence of any record evidence that Bullerdiek used reliable principles
and methods or applied them reliably to the facts of this case to form his opinion, his
causation opinion does not satisfy the Rule 702 standards for admissibility. See id.
at 924-25 (affirming the exclusion of evidence under Rule 702, although the expert
was qualified and the general principles he advanced were sound, because the expert
did not present data, test results or mathematical calculations to show how the general
principles would operate to cause the accident in question). This leaves the Statons
without the necessary expert testimony regarding causation. Therefore, the grant of
summary judgment to Lenan must be affirmed. Cf. Hills, 710 S.W.2d at 341 (holding
that a plaintiff failed to make a submissible strict products liability claim where the
plaintiff’s proffered expert testimony combined with circumstantial evidence was
insufficient to establish that a claimed defect caused a fire).
Because the Statons’ claims fail for lack of evidence that the internal hole in the
combustion chamber caused the fire, the admissibility of Dean’s statement that
firebrick on the target wall probably would have prevented the hole from forming
becomes irrelevant. As a result, we need not resolve the question of whether Dean’s
statement is admissible as the admission of a party-opponent and, therefore, not
subject to the expert-testimony requirements of Rule 702.
III. CONCLUSION
We hold that expert testimony was necessary to prove causation in this case and
that the expert testimony presented by the Statons to prove causation properly was
excluded by the district court. Accordingly, we affirm the grant of summary judgment
to Lenan on the Statons’ strict products liability and breach of implied warranty
claims.
______________________________
-9-