DEBBIE ANN CASH v. LG ELECTRONICS, INC.

SECOND DIVISION
MILLER, P. J.,
DOYLE and REESE, JJ.
NOTICE: Motions for reconsideration must be
physically received in our clerk’s office within ten
days of the date of decision to be deemed timely filed.
http://www.gaappeals.us/rules
September 8, 2017
In the Court of Appeals of Georgia
A17A0878. CASH et al. v. LG ELECTRONICS, INC. et al.
MILLER, Presiding Judge.
This case involves a tragic fire at the home of appellant Debbie Cash, which
resulted in the death of Cash’s husband and son. Cash and her surviving daughter
filed suit against LG Electronics, Inc.1 alleging, among other claims, strict liability
and negligence. Cash claims that the LG television in her living room was the cause
of the fire, and in support she submitted the expert testimony of an engineer who
attempted to recreate the origin of the fire. Upon LG’s motion, the trial court
excluded the expert’s testimony, finding that the expert’s opinion was not based on
1
Defendants LG Electronics, U.S.A., Inc; Philips Electronics N. A. Corp.; The
DirecTV Group, Inc.; SED International, Inc.; Flextronics International, USA;
Homesmart; and Wal-Mart Stores, Inc. have been either dismissed from suit or
granted summary judgment, and Cash does not challenge those rulings on appeal.
sufficient facts or reliable principles and methods, as required by Daubert v. Merrell
Dow Pharmaceuticals, Inc., 509 U.S. 579 (113 SCt 2786, 125 LE2d 469) (1993).
After excluding Cash’s causation expert, the trial court granted summary judgment
to LG based on the lack of competent and admissible evidence that there was a defect
in the television that caused the fire. This appeal followed, and after a thorough
review of the record, we affirm.
The evidence in this case shows that, on the morning of July 6, 2011, Cash’s
son woke up and went into the living room to watch TV. He then came into Cash’s
room and told Cash and her husband that the house was on fire. When Cash looked
in the living room, she saw green-black smoke and that the entire entertainment
center was on fire. When she and her husband were unable to extinguish the fire,
Cash exited the house. Believing that her husband and son had already escaped, Cash
went to a window and pulled her daughter out. Once Cash realized her husband and
son were trapped in the house, the fire was too extensive for her to rescue them. Mr.
Cash died in the house. Fire fighters pulled Cash’s son from the house, but he
subsequently died at the hospital.
Following an investigation, the Gwinnett County fire department determined
that the fire started in the vicinity of the entertainment center, but they were unable
2
to determine the exact origin of the fire. Cash’s expert opined that an internal
component in the television’s power supply board failed due to a manufacturing
defect or mechanical damage, triggering a chain reaction that caused a fire.
1. Cash argues that the trial court erred in excluding her expert’s testimony
because his methods were reliable and his testimony was based on sufficient facts and
data. We disagree.
“[W]hether expert testimony ought to be admitted under [OCGA § 24-7-702]
is a question committed to the sound discretion of the trial court.” (Citation omitted.)
Scapa Dryer Fabrics, Inc. v. Knight, 299 Ga. 286, 289 (788 SE2d 421) (2016). We
will not disturb the trial court’s determination “absent a manifest abuse of discretion.”
Mason v. Home Depot U.S.A., Inc., 283 Ga. 271, 279 (5) (658 SE2d 603) (2008).
OCGA § 24-7-702 governs the admissibility of expert testimony, and it
requires that the trial court act as “gatekeeper to ensure the relevance and reliability
of expert testimony.” (Citation and punctuation omitted.) Scapa Dryer Fabrics, Inc.,
supra, 299 Ga. at 289. The statute specifically provides:
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, experience, training,
or education may testify thereto in the form of an opinion or otherwise,
3
if: (1) The testimony is based upon sufficient facts or data; (2) The
testimony is the product of reliable principles and methods; and (3) The
witness has applied the principles and methods reliably to the facts of
the case which have been or will be admitted into evidence before the
trier of fact.
(Emphasis supplied.) OCGA § 24-7-702 (b)
Importantly,
in interpreting and applying this Code section, the courts of this state
may draw from the opinions of the United States Supreme Court in
Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993);
General Electric Co. v. Joiner, 522 U.S. 136 (1997); Kumho Tire Co.
Ltd. v. Carmichael, 526 U.S. 137 (1999); and other cases in federal
courts applying the standards announced by the United States Supreme
Court in these cases.
OCGA § 24-7-702 (f). The trial court has “substantial discretion in deciding how to
test an expert’s reliability.” (Citation omitted.) Butler v. Union Carbide Corp., 310
Ga. App. 21, 26 (1) (712 SE2d 537) (2011). The party seeking to rely on the expert
bears the burden of proving the expert is sufficiently reliable. Id.
To admit expert testimony under OCGA § 24-7-702, the trial court must
consider: (a) the qualifications of the expert; (b) the reliability of the testimony; and
(c) the relevance of the testimony. Scapa Dryer Fabrics, Inc., supra, 299 Ga. at 289.
4
These are three distinct factors, and courts should be careful not to conflate them.
Quiet Technology DC-8, Inc. v. Hurel-Dubois UK, Ltd., 326 F3d 1333, 1341 (II) (A)
(11th Cir. 2003). The trial court in this case focused solely on the reliability of the
expert’s testing, and accordingly, we do as well.
[G]enerally, reliability is examined through consideration of many
factors, including whether a theory or technique can be tested, whether
it has been subjected to peer review and publication, the known or
potential rate of error for the theory or technique, the general degree of
acceptance in the relevant scientific or professional community, and the
expert’s range of experience and training.
(Citations and punctuation omitted.) Old Republic Nat. Title Co. v. RM Kids, LLC,
337 Ga. App. 638, 647 (4) (788 SE2d 542) (2016), cert. denied (Feb. 27, 2017). This
is not an exhaustive list of factors, and courts may consider them in a “flexible”
manner. United Fire & Cas. Co. v. Whirlpool Corp., 704 F3d 1338, 1341 (II) (11th
Cir. 2013). The trial court may not exclude an otherwise sufficient expert “simply
because it believes that the opinion is not – in its view – particularly strong or
persuasive. The weight to be given to admissible expert testimony is a matter for the
jury.” Seamon v. Remington Arms Co., LLC, 813 F3d 983, 990 (III) (A) (2) (11th Cir.
2016).
5
Importantly, however, a trial court is not permitted to “admit opinion evidence
that is connected to existing data only by the ipse dixit of the expert. A court may
conclude that there is simply too great an analytical gap between the data and the
opinion proffered.” Gen. Elec. Co. v. Joiner, 522 U.S. 136, 146 (III) (118 SCt 512,
139 LE2d 508) (1997); see also HNTB Ga., Inc. v. Hamilton-King, 287 Ga. 641, 644
(1) (697 SE2d 770) (2010). That is precisely the problem with the expert’s
methodology in this case.
a. Sufficient facts and data
Under this prong, we consider the facts on which the expert relied to reach his
conclusions. “Although an expert lacks direct evidence of the cause of the fire, the
expert may rely upon circumstantial evidence to support his theory.” (Citations and
punctuation omitted.) Great Northern Ins. Co. v. Ruiz, 688 FSupp.2d 1362, 1371 (III)
(A) (1) (a) (S.D. Ga. 2010).
Here, the expert formulated a hypothesis that the television was the source of
the fire, based on the following circumstantial evidence: Cash’s testimony that she
saw the fire burning upwards from the middle of the entertainment center; the more
significant amount of burning in the area of the speaker compared with the remainder
6
of the TV; and the destruction of the power board in the TV.2 Based on this evidence,
the expert conducted testing to establish the nature of the failure in the television.
b. Principles and methodology3
Cash’s expert opined that the fire was caused by a series of events, beginning
with one of two internal components called capacitors4 located in the power supply
board of the TV. Specifically, the expert stated that “Capacitor C612” failed due to
a manufacturing defect or mechanical damage, and as a result, pressure increased
inside Capacitor C612, causing the vented end of the capacitor to extend outward,
2
Fire investigators agree that the origin of the fire was somewhere in the
entertainment center, but they did not specifically identify the television.
3
Cash contends that the trial court gave too much weight to the expert’s
alleged failure to comply with the Georgia Firefighter Standards and Training
Examination Preparation and Prerequisites, NFPA 921, a standard that provides
methodology for fire investigations. Cash contends that this document is merely a
guide and not a legal standard. We note that federal courts have routinely accepted
NFPA 921 as an appropriate standard for experts. United Fire & Cas. Co., supra, 704
F3d at 1341 (II) (A). Regardless of whether the expert complied with NFPA 921,
however, the trial court did not abuse its discretion in rejecting the expert’s testimony
as unreliable for the reasons discussed herein.
4
A capacitor is a component that is used to store an electrical charge. It is
comprised of one or more pairs of conductors, called “plates,” that are separated by
an insulator.
7
like “wings,” and make contact with an adjacent component called the heat sink.5 He
contended that this contact created a “rather violent” electrical arc that was sufficient
to ignite vapors and/or other materials inside the television. He then opined that the
resulting flame burned the gasses as they escaped from Capacitor C612, igniting
either a plastic sleeve surrounding the capacitor or a paper component in the power
supply board. This ignition then caused flammable materials to drip and engulf
components of the speaker located in the bottom right hand corner of the TV. This
fire, he claimed, eventually ignited the remainder of the plastic base of the TV, and
spread beyond the television. To prove this hypothesis, the expert designed a protocol
to reverse engineer the cause of the fire. Problematically, however, the expert’s
methodology required repeated manipulation to achieve his desired results.
Specifically, the expert testified that, to complete the first step of his
hypothesis, it was critical to establish that the “wings” from Capacitor C612 made
contact with the neighboring heat vent component. At the outset, the expert
manipulated the experiment in a way that did not reflect the conditions in existence
on the day of the fire because he removed a safety fuse from the TV to trigger the
5
A heat sink is a component that is designed to absorb and dissipate excess
heat.
8
venting of Capacitor C612’s wings. However, there was no evidence that the safety
fuse was missing from the LG TV at issue at the time of the fire. Moreover, in
conducting this experiment, he used a different brand of capacitor than the one in the
LG television.
Although by industry standards, the capacitor and heat vent are placed at least
3 mm apart,6 the expert was never able to get the wings to span a distance more than
1.5 mm when conducting his experiments. Because this distance was insufficient for
the wings to establish contact with the heat vent on their own, the expert
electronically simulated the contact between the two in order to progress to testing
the next step of his hypothesis.
After forcing the contact between the capacitor’s wings and the heat sink, the
next phase of the expert’s experiment was designed to support his hypothesis that this
contact caused a flame which ignited vapors or materials and then ignited plastic or
paper inside Capacitor C612. The expert testified that it was critical that this step
create a flame. However, the expert was not able to create such a flame merely by
6
There is no evidence that these components were closer than industry standard
in the LG TV at issue.
9
forcing contact between these two components. Thus, to progress the experiment to
the next phase, the expert had to hold a lighter at the vents to ignite the vapors.
The next step in the expert’s hypothesized chain reaction was that the flame
from the vapors would ignite shrink wrap in the capacitor and catch fire, which would
ultimately spread to the speaker located near the bottom of the LG TV. Again, the
expert was required to manipulate the experiment to achieve the desired result of
dripping hot plastic because that did not occur on its own. Even when the expert
forced the plastic to drip, these drippings did not ignite the cotton ball, which the
expert had placed under them to simulate the flammable speaker components.
At every step of the expert’s experiment, the results failed to trigger the next
event of his expected chain reaction unless he forced the result he desired and
proceeded to the next step. Contrary to Cash’s argument on appeal, the trial court’s
rejection of this hypothesis is not a critique of the expert’s results. Instead, it is a
finding that the expert employed an unreliable methodology that is inconsistent with
the standard under Daubert, 509 U.S. at 595 (II) (B).
Not only did the expert’s methodology include unrealistic manipulation, he
also failed to establish that his methodology has been peer-reviewed or used by
10
others, or had otherwise obtained approval in the scientific community.7 When asked
if his methods were generally accepted in the scientific community, the expert averred
that he was a member of the scientific community, and he had created the test, and
then he boldly claimed that his test “will pass muster.” Yet, he could name only one
other person who has approved of it. Moreover, although the expert claimed that his
testing was published in an article, he could not name the publication.
In short, the trial court did not abuse its discretion, under these facts, in
concluding that the expert’s methodology was unreliable under Daubert.
c. Application of the methodology to the facts
As discussed above, the expert’s methodology consisted of his repeated
manipulation to progress his testing and show that the fire originated in the television.
However, there is no evidence that the circumstances the expert created in his
experiment existed in the television on the day of the fire. The admission of expert
testimony under Daubert is left to the trial court’s sound discretion, and this is
sufficient basis for the trial court to reject the expert testimony. See Fireman’s Fund
Ins. Co. v. Canon U.S.A., Inc., 394 F3d 1054, 1058-1059 (II) (A) (8th Cir. 2005)
7
At least one other court has rejected this expert based on a similar
methodology. See Whirlpool Corp. v. Camacho, 298 S.W.3d 631, 642-643 (III) (Tex.
2009).
11
(testing that was not conducted under the conditions at the time of the fire was not
reliable).
Cash argues that the expert’s methodology was sound because investigators
agreed that the origin of the fire was in the entertainment system, and the expert used
process of elimination to determine that the television was the source. Although
process of elimination can be a reliable means of ascertaining the source of a fire,
such eliminations must be made through reliable scientific investigation and testing,
which the trial court found was not done in this case. See Michigan Millers Mut. Ins.
Corp. v. Benfield, 140 F3d 915, 921 (II) (A) (11th Cir. 1998). For the reasons
explained above, we find no abuse of discretion in the trial court’s analysis.
Finally, Cash argues that the trial court’s concerns about the expert’s testing
go to weight and credibility rather than admissibility. See Seamon v. Remington Arms
Co., LLC, 813 F3d 983, 990 (III) (A) (2) (2016). We do not agree. The issue is not
whether the expert’s opinion about the source of the fire is correct, but rather whether
the methodology he employed to reach that conclusion is reliable. Where, as here, the
analytical gap between the data and the expert’s opinion is too remote, the trial court
does not abuse its discretion by excluding the expert’s testimony. Joiner, supra, 522
U. S. at 146 (III).
12
In summary, the trial court based its decision to exclude the expert testimony
here on the unreliability of the expert’s methodology, specifically, the expert’s
manipulation of the testing at every step of the process. On these facts, the trial court
did not abuse its discretion.
2. Cash next argues that the trial court erred in granting LG’s motion for
summary judgment. We disagree.
On appeal from the grant of summary judgment this Court
conducts a de novo review of the evidence to determine whether there
is a genuine issue of material fact and whether the undisputed facts,
viewed in the light most favorable to the nonmoving party, warrant
judgment as a matter of law.
(Citations and punctuation omitted.) Campbell v. Landings Assn., Inc., 289 Ga. 617,
618 (713 SE2d 860) (2011).
In her complaint, Cash alleged breach of express warranty, breach of implied
warranty of merchantability, strict liability, and negligence. She also pled claims for
unjust enrichment and restitution.
In light of our conclusion in Division 1 that the trial court properly excluded
the expert testimony, Cash had no evidence to establish her claims that the television
was the cause in fact or source of the fire, and her claims against LG necessarily fail.
13
See Fletcher v. Water Applications Distrib. Group, Inc., 333 Ga. App. 693, 696 (773
SE2d 859) (2015), cert. denied, - Ga. - (2016), reversed in part on other grounds,
Certainteed Corp. v. Fletcher, 300 Ga. 327 (794 SE2d 641) (2016) (causation is
element of negligence claim); Foothills Pharmacies, Inc. v. Powers, 313 Ga. App.
630, 632 (2) (722 SE2d 331) (2012) (absent evidence of causation, plaintiff could not
establish claim for breach of express warranty claim); Boswell v. Overhead Door
Corp., 292 Ga. App. 234, 235 (664 SE2d 262) (2008) (plaintiff must prove causation
to succeed on strict liability theory); Wilson v. J & L Melton, Inc., 270 Ga. App. 1, 3
(1), n. 1 (c) (606 SE2d 47) (2004) (to prove a claim for breach of implied warranty
of merchantability the plaintiff must prove causation). Thus, in the absence of any
evidence of causation, the trial court properly granted summary judgment to LG on
these claims.
Finally, Cash’s claims for equitable relief fail. Cash had an adequate remedy
at law, Besser v. Rule, 270 Ga. 473, 474 (510 SE2d 530) (1999), and she did not plead
unjust enrichment as an alternate theory of recovery based on a failed contract. Thus,
her claim for such relief cannot succeed. Wachovia Ins. Svcs., Inc. v. Fallon, 299 Ga.
App. 440, 449 (6) (682 SE2d 657) (2009).
14
For the foregoing reasons, the trial court’s order excluding Cash’s expert
testimony and the grant of summary judgment to LG are affirmed.
Judgment affirmed. Doyle and Reese, JJ., concur.
15