Larsen v. 401 Main Street , 302 Neb. 454 ( 2019 )


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    05/03/2019 02:07 AM CDT
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    Nebraska Supreme Court A dvance Sheets
    302 Nebraska R eports
    LARSEN v. 401 MAIN STREET
    Cite as 
    302 Neb. 454
    Lee Larsen and A my Larsen, husband and wife, and
    Plattsmouth Chiropractic Center, Inc., a Nebraska
    corporation, appellants, v. 401 M ain Street, I nc.,
    a Nebraska corporation, doing business as
    Quart House Pub, and H. & C., Inc.,
    a Nebraska corporation, appellees.
    ___ N.W.2d ___
    Filed March 8, 2019.    No. S-18-168.
    1.	 Trial: Expert Witnesses: Appeal and Error. An appellate court reviews
    de novo whether the trial court applied the correct legal standards for
    admitting an expert’s testimony.
    2.	 ____: ____: ____. An appellate court reviews for abuse of discretion
    how the trial court applied the appropriate standards in deciding whether
    to admit or exclude an expert’s testimony.
    3.	 Summary Judgment: Appeal and Error. An appellate court will
    affirm a lower court’s grant of summary judgment if the pleadings and
    admitted evidence show that there is no genuine issue as to any material
    facts or as to the ultimate inferences that may be drawn from those facts
    and that the moving party is entitled to judgment as a matter of law.
    4.	 ____: ____. In reviewing a summary judgment, an appellate court views
    the evidence in the light most favorable to the party against whom the
    judgment was granted and gives that party the benefit of all reasonable
    inferences deducible from the evidence.
    5.	 Courts: Expert Witnesses. Under the Daubert v. Merrell Dow
    Pharmaceuticals, Inc., 
    509 U.S. 579
    , 
    113 S. Ct. 2786
    , 
    125 L. Ed. 2d 469
                         (1993), and Schafersman v. Agland Coop, 
    262 Neb. 215
    , 
    631 N.W.2d 862
    (2001), framework, the trial court acts as a gatekeeper to ensure the
    evidentiary relevance and reliability of an expert’s opinion.
    6.	 Trial: Expert Witnesses. Under the framework established by Daubert
    v. Merrell Dow Pharmaceuticals, Inc., 
    509 U.S. 579
    , 
    113 S. Ct. 2786
    ,
    
    125 L. Ed. 2d 469
    (1993), and Schafersman v. Agland Coop, 
    262 Neb. 215
    , 
    631 N.W.2d 862
    (2001), if an expert’s opinion involves scientific or
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    Nebraska Supreme Court A dvance Sheets
    302 Nebraska R eports
    LARSEN v. 401 MAIN STREET
    Cite as 
    302 Neb. 454
    specialized knowledge, a trial court must determine whether the reason-
    ing or methodology underlying the testimony is valid (reliable). It must
    also determine whether that reasoning or methodology can be properly
    applied to the facts in issue.
    Appeal from the District Court for Cass County: Michael A.
    Smith, Judge. Affirmed.
    Thomas A. Grennan, and Adam J. Wachal, of Gross &
    Welch, P.C., L.L.O., for appellants.
    Robert D. Mullin, Jr., of McGrath, North, Mullin & Kratz,
    P.C., L.L.O., for appellees.
    Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke,
    Papik, and Freudenberg, JJ.
    Papik, J.
    A fire broke out in the basement of the Quart House Pub,
    a bar in Plattsmouth, Nebraska. The fire spread and damaged
    nearby real and personal property belonging to Lee Larsen and
    Amy Larsen and Plattsmouth Chiropractic Center, Inc. (col-
    lectively Plattsmouth Chiropractic). Plattsmouth Chiropractic
    sued the entities that owned the bar and its premises (col-
    lectively Quart House), alleging that equipment located in
    the basement of the bar had been negligently maintained.
    The district court did not allow testimony from Plattsmouth
    Chiropractic’s expert on the cause of the fire and sustained
    Quart House’s motion for summary judgment. Plattsmouth
    Chiropractic now appeals those rulings.
    We find that the district court did not abuse its discre-
    tion in striking the testimony of Plattsmouth Chiropractic’s
    expert as to the cause of the fire. And without that testi-
    mony, Plattsmouth Chiropractic could not present evidence
    that would allow a finder of fact to reasonably conclude that
    Quart House’s negligence caused the fire and resulting dam-
    age. For this reason, summary judgment was proper. Finding
    no error, we affirm.
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    Nebraska Supreme Court A dvance Sheets
    302 Nebraska R eports
    LARSEN v. 401 MAIN STREET
    Cite as 
    302 Neb. 454
    BACKGROUND
    Pleadings, Motions to Strike, and
    Motion for Summary Judgment.
    On January 2, 2014, a fire broke out in the basement of the
    Quart House Pub. The fire spread to Plattsmouth Chiropractic’s
    neighboring office, resulting in property damage. Plattsmouth
    Chiropractic sued Quart House, alleging negligent mainte-
    nance of the property. More specifically, it claimed that Quart
    House failed to adequately service and maintain the mechani-
    cal equipment in the basement, including but not limited to the
    boiler and water heater. Plattsmouth Chiropractic alleged that
    this failure proximately caused damages to its property. Quart
    House’s answer denied the allegations in the petition pertain-
    ing to the origin and cause of the fire.
    Plattsmouth Chiropractic designated Duane Wolf as an
    expert witness concerning the origin and cause of the fire.
    Quart House moved to strike and exclude Wolf’s testimony.
    Quart House asserted that Wolf’s testimony did not provide
    an admissible causation opinion, was based solely on unreli-
    able assumptions and/or methodology, and failed to meet the
    requirements of Daubert v. Merrell Dow Pharmaceuticals,
    Inc., 
    509 U.S. 579
    , 
    113 S. Ct. 2786
    , 
    125 L. Ed. 2d 469
    (1993), and Schafersman v. Agland Coop, 
    262 Neb. 215
    , 
    631 N.W.2d 862
    (2001). Plattsmouth Chiropractic filed its own
    motion to strike and exclude the opinion testimony of Quart
    House’s expert.
    Quart House also moved for summary judgment. The par-
    ties subsequently addressed the motions to exclude expert
    testimony and the motion for summary judgment at the same
    hearing.
    Hearing on Motions to Strike
    and for Summary Judgment.
    At the hearing, the district court received evidence that on
    the date of the fire, the bartender on the main floor observed
    smoke emanating from some cabinets. The bartender called
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    LARSEN v. 401 MAIN STREET
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    302 Neb. 454
    the 911 emergency dispatch service and left the building.
    Within minutes, volunteer fire department personnel arrived
    and observed flames in the cabinets, apparently coming from
    the basement. Despite the efforts of the volunteer firefight-
    ers and firefighters from other area fire departments, the fire
    eventually overtook the building. Due to the unsafe condi-
    tions that resulted from extensive damage, fire investiga-
    tors were not allowed to inspect the scene and the building
    was demolished.
    Both parties agree that the fire originated in the basement
    of the bar. The basement housed a walk-in cooler, several air
    compressors used for coolers, an old natural gas boiler, and a
    water heater. The parties presented evidence concerning the
    condition, inspection, and maintenance of the boiler, which
    was at least 50 years old. From approximately 1980 to 2010,
    the boiler was inspected annually by service professionals, who
    performed maintenance as needed. In the 3 to 4 years prior to
    the fire, however, no maintenance or inspection of the boiler
    had occurred. Neither the cooler nor the water heater ever
    received regular inspections.
    Plattsmouth Chiropractic presented the opinions and tes-
    timony of Wolf concerning the origin and cause of the fire.
    Wolf, a mechanical engineer with a background in fire and
    explosion investigation, based his opinion upon a reasonable
    degree of “engineering certainty” after reviewing 27 docu-
    ments related to the fire at the bar. Wolf admitted in his deposi-
    tion that he was unable to determine a “root cause” of the fire,
    but testified that it was his belief that the fire originated “in
    the vicinity of the boiler.” Wolf believed the fire most likely
    originated in the boiler, but he could not eliminate the possibil-
    ity that the fire started in the nearby water heater. Additionally,
    Wolf acknowledged a possibility that the fire originated in one
    of several compressors. When Wolf was asked if he was able to
    rule out electrical wiring as the cause of the fire, he responded
    that the building’s electrical service was “outside my area
    of expertise.”
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    LARSEN v. 401 MAIN STREET
    Cite as 
    302 Neb. 454
    Wolf believed that the fire originated from a failure of one
    of the items of mechanical equipment in the area of the boiler.
    Wolf opined that, because the fire most likely originated due to
    the failure of mechanical equipment in the basement, the fire
    most likely would not have occurred if the mechanical equip-
    ment “had been regularly serviced and replaced as needed.”
    Wolf was critical of Quart House’s maintenance of the
    boiler. He stated that boilers require annual maintenance by
    qualified service technicians. Wolf testified that because the
    boiler lacked certain modern safety features, more monitor-
    ing and maintenance were required, but he did not specify
    what those measures entailed. In opposition to the opinions
    expressed by Wolf, Quart House presented evidence that yearly
    inspections were not warranted for such a boiler unless prob-
    lems developed and that the bar’s owner had not observed any
    problems since leasing the property in 2010.
    While Wolf testified to his beliefs that the fire originated
    in the vicinity of the boiler and that the fire most likely origi-
    nated in the boiler itself, he admitted that he could not with
    reasonable certainty identify a specific way in which the boiler
    caused the fire. He did testify that the boiler lacked a “low
    water cutoff” and that the absence of this feature posed the risk
    of a “dry fire.” Even so, he could not offer an opinion that the
    fire was caused by a dry fire. He testified that if he could have
    inspected the boiler, he would have looked for evidence of a
    dry fire. He also conceded that a dry fire could result from a
    progressive loss of water or a sudden one, the latter of which
    could not have been prevented by an inspection the month
    before the fire.
    As for the water heater, Wolf testified that he did not know
    the maintenance requirements for that piece of equipment.
    When asked to assume the fire started in the water heater,
    Wolf could not identify the most likely failure mode of the
    water heater.
    Wolf conceded that his report was not consistent with the
    National Fire Protection Association’s publication No. 921
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    (NFPA 921), which requires ruling out other possible causes
    of a fire before adopting a particular hypothesis, and he testi-
    fied that a postfire forensic inspection was typically required
    to rule out possible causes of a fire. Wolf testified that his
    analysis did not determine the root cause of the fire, because
    the information available limited his investigation.
    Quart House retained Kenneth Ward, a fire investigator,
    as an expert in the area of fire origin and cause. In Ward’s
    opinion, because no fire investigators or experts were allowed
    inside the building before it was demolished, no adequate
    scientific or professional basis existed for any fire investiga-
    tor or expert to render an opinion as to the cause or origin of
    the fire.
    According to Ward, NFPA 921 was the generally accepted
    guideline for proper scientific methodology in “origin and
    cause” fire investigations. He stated that Wolf’s methodology
    did not comply with NFPA 921 methodology. Ward explained
    that NFPA 921 does not allow an investigator to determine the
    cause of a fire without first pinpointing the origin of the fire,
    and in this instance, Ward named 26 possibilities that could
    not be eliminated. Furthermore, Ward testified that Wolf’s
    opinion that the fire originated in a particular part of the base-
    ment was not based upon acceptable scientific methodology,
    because it was based on observations rather than interpreta-
    tion of burn patterns and area mapping procedures. Ward was
    not aware of guidelines or standards for fire investigation that
    would support Wolf’s methodology.
    District Court’s Rulings.
    The district court overruled the motion to strike Ward’s
    testimony and sustained the motion to strike Wolf’s testimony.
    The district court reasoned that although Wolf was well quali-
    fied as an expert in mechanical engineering, his testimony
    regarding causation did not meet the Daubert/Schafersman
    threshold, because the methodology could not be properly
    applied to the facts at issue. See Daubert v. Merrell Dow
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    Nebraska Supreme Court A dvance Sheets
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    LARSEN v. 401 MAIN STREET
    Cite as 
    302 Neb. 454
    Pharmaceuticals, Inc., 
    509 U.S. 579
    , 
    113 S. Ct. 2786
    , 
    125 L. Ed. 2d 469
    (1993), and Schafersman v. Agland Coop, 
    262 Neb. 215
    , 
    631 N.W.2d 862
    (2001). The district court pointed
    to the fact that Wolf could not offer an opinion as to the cause
    of the fire. The district court emphasized that, at best, Wolf
    could testify only that the cause of the fire was consistent
    with boiler failure, but he could not testify that a failure of
    the boiler caused the fire. The district court also noted that
    Wolf could not determine whether the boiler ignited due to a
    progressive loss of water or a sudden one and that, by Wolf’s
    own admission, a recent inspection would not have prevented
    a sudden loss of water in the boiler. Given these concessions
    by Wolf, the district court stated that it was mere speculation
    that the fire could have been prevented by regular inspections
    and maintenance of the mechanical equipment.
    The district court also sustained Quart House’s motion for
    summary judgment. It found that Plattsmouth Chiropractic
    could not show that, but for the alleged failure to maintain and
    inspect the boiler, the fire and resulting damages would not
    have occurred. According to the court, there was a gap between
    the alleged acts of negligence and the cause of the fire. The
    district court reiterated that the evidence did not support a
    reasonable inference as to the cause of the fire, only impermis-
    sible speculation.
    Plattsmouth Chiropractic now challenges these rulings on
    appeal.
    ASSIGNMENTS OF ERROR
    Plattsmouth Chiropractic assigns, condensed and restated,
    that the district court erred in (1) sustaining the motion to
    strike the testimony of its expert and (2) granting summary
    judgment.
    STANDARD OF REVIEW
    [1,2] We review de novo whether the trial court applied the
    correct legal standards for admitting an expert’s testimony.
    Roskop Dairy v. GEA Farm Tech., 
    292 Neb. 148
    , 871 N.W.2d
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    776 (2015). We review for abuse of discretion how the trial
    court applied the appropriate standards in deciding whether to
    admit or exclude an expert’s testimony. 
    Id. [3,4] An
    appellate court will affirm a lower court’s grant
    of summary judgment if the pleadings and admitted evidence
    show that there is no genuine issue as to any material facts or
    as to the ultimate inferences that may be drawn from those
    facts and that the moving party is entitled to judgment as a
    matter of law. Sparks v. M&D Trucking, 
    301 Neb. 977
    , 
    921 N.W.2d 110
    (2018). In reviewing a summary judgment, an
    appellate court views the evidence in the light most favorable
    to the party against whom the judgment was granted and gives
    that party the benefit of all reasonable inferences deducible
    from the evidence. 
    Id. ANALYSIS Exclusion
    of Wolf ’s Testimony.
    We first address the contention that the district court erred
    in excluding the testimony of Plattsmouth Chiropractic’s
    expert, Wolf.
    [5,6] The Nebraska Evidence Rules provide: “If scientific,
    technical, or other specialized knowledge will assist the trier of
    fact to understand the evidence or to determine a fact in issue,
    a witness qualified as an expert by knowledge, skill, experi-
    ence, training, or education, may testify thereto in the form of
    an opinion or otherwise.” Neb. Evid. R. 702, Neb. Rev. Stat.
    § 27-702 (Reissue 2016). Under the Daubert v. Merrell Dow
    Pharmaceuticals, Inc., 
    509 U.S. 579
    , 
    113 S. Ct. 2786
    , 125 L.
    Ed. 2d 469 (1993), and Schafersman v. Agland Coop, 
    262 Neb. 215
    , 
    631 N.W.2d 862
    (2001), framework, the trial court acts as
    a gatekeeper to ensure the evidentiary relevance and reliability
    of an expert’s opinion. Hemsley v. Langdon, 
    299 Neb. 464
    , 
    909 N.W.2d 59
    (2018). Therefore, if an expert’s opinion involves
    scientific or specialized knowledge, a trial court must deter-
    mine whether the reasoning or methodology underlying the
    testimony is valid (reliable). Freeman v. Hoffman-La Roche,
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    Inc., 
    300 Neb. 47
    , 
    911 N.W.2d 591
    (2018). It must also deter-
    mine whether that reasoning or methodology can be properly
    applied to the facts in issue. 
    Id. In this
    case, the district court did not permit Wolf to testify
    to his conclusion that the fire and resulting damages were
    caused by negligent maintenance of mechanical equipment on
    the part of Quart House. It found that Wolf could reach that
    conclusion only by engaging in speculation. We have recog-
    nized that an expert’s opinion cannot be based on “‘unsup-
    ported speculation.’” See King v. Burlington Northern Sante Fe
    Ry. Co., 
    277 Neb. 203
    , 227, 
    762 N.W.2d 24
    , 43 (2009). Here,
    we find that the district court did not abuse its discretion in
    excluding Wolf’s causation testimony on this basis.
    While Wolf expressed opinions as to the general vicinity
    where the fire originated and that the fire was caused by a
    mechanical issue, he did not have an opinion about what that
    mechanical issue was. In fact, he could not even form an opin-
    ion as to the specific piece of equipment in which a mechani-
    cal failure occurred. Wolf did testify that he believed the fire
    most likely originated in the boiler, but he could not say that a
    particular condition in the boiler caused the fire. He mentioned
    one scenario involving the boiler—a dry fire caused by a low
    water level—as a possible cause, but he could not testify that
    scenario was actually the cause of the fire, because he did not
    have the opportunity to inspect the boiler. And, in any event,
    he admitted that even if the fire was caused by a dry fire in the
    boiler, that condition could have developed suddenly; in which
    case, by Wolf’s own admission, periodic inspections would not
    have prevented the fire.
    If Wolf had opined that the fire was caused by a par-
    ticular mechanical failure, we understand how he might have
    been able to conclude that proper inspections and maintenance
    would have prevented that failure and thus prevented the fire.
    But, as we have explained, Wolf did not have an opinion as to
    the specific cause of the fire. And, as the “dry fire” scenario
    raised by Wolf illustrates, the fire might have been caused by
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    some condition that would have arisen even if Quart House had
    performed all the inspections and maintenance Wolf claims it
    should have. In the absence of an explanation from Wolf as
    to how he could conclude that proper inspections and mainte-
    nance would have prevented the fire without forming an opin-
    ion as to its specific cause, we do not believe the district court
    abused its discretion by finding that Wolf’s opinion was based
    on unsupported speculation.
    Summary Judgment.
    Plattsmouth Chiropractic also argues that the district court
    erred in granting summary judgment in favor of Quart House.
    Plattsmouth Chiropractic contends that there is a genuine
    issue of material fact as to the cause of the fire and maintains
    that this is the case even if Wolf’s causation testimony is
    excluded.
    As we stated above, and as we have often said, an appellate
    court will affirm a lower court’s grant of summary judgment if
    the pleadings and admitted evidence show that there is no gen-
    uine issue as to any material facts or as to the ultimate infer-
    ences that may be drawn from those facts and that the moving
    party is entitled to judgment as a matter of law. Sparks v. M&D
    Trucking, 
    301 Neb. 977
    , 
    921 N.W.2d 110
    (2018). Here, as in
    any negligence action, Plattsmouth Chiropractic was required
    to adduce evidence showing that there was a negligent act or
    omission by Quart House and that such act or omission was the
    proximate cause of its injury or was a cause which proximately
    contributed to it. See Stones v. Sears, Roebuck & Co., 
    251 Neb. 560
    , 
    558 N.W.2d 540
    (1997). But without Wolf’s expert
    opinion as to causation, only Ward’s opinion remained, and he
    unequivocally stated that the condition of the site precluded an
    adequate scientific basis for fire experts to render an opinion
    as to the cause or origin of the fire. Thus, no admissible expert
    opinion established the key element of causation.
    Plattsmouth Chiropractic would have us conclude that sum-
    mary judgment was improper even without an expert opinion
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    that negligence on the part of Quart House proximately caused
    the fire. Plattsmouth Chiropractic points to evidence that on
    the night of the fire, smoke first emerged from the area above
    the boiler and water heater. It also points to testimony from the
    bartender that it was cold inside the bar on the night of the fire
    and suggests the cold temperature is consistent with a failure
    of the boiler. Plattsmouth Chiropractic argues this is sufficient
    circumstantial evidence to create a genuine issue of fact as to
    the cause of the fire.
    To avoid summary judgment, however, Plattsmouth
    Chiropractic had to adduce evidence from which a finder of
    fact could conclude, without engaging in guess, speculation,
    conjecture, or choice of possibilities, that a negligent failure
    to adequately maintain equipment caused the fire and resulting
    damage. See Swoboda v. Mercer Mgmt. Co., 
    251 Neb. 347
    ,
    
    557 N.W.2d 629
    (1997). The evidence summarized above sug-
    gests, at most, that the fire originated near or in the boiler. It
    does not constitute a basis for the finder of fact to conclude
    that negligent maintenance on the part of Quart House caused
    the fire. Since the record did not contain evidence that would
    allow a finder of fact to find that negligent maintenance caused
    the fire, without engaging in guess, speculation, conjecture, or
    a choice of possibilities, we find that the district court did not
    err in granting summary judgment.
    CONCLUSION
    For the foregoing reasons, we affirm the order of the district
    court that excluded Wolf as an expert witness and granted sum-
    mary judgment in favor of Quart House.
    A ffirmed.