Opposing Experts’ Testimony On Fire Origin and Cause Investigation Partly Excluded
Posted on September 27, 2024 by Expert Witness Profiler
This matter arises from a July 30, 2022, lightning strike in Water Valley, Mississippi, which caused a fire and ultimately the destruction of a warehouse and its contents, including automotive components owned by the Plaintiff Kodaco and stored in the warehouse.
Kodaco claims “approximately $3,500,000.00 worth of business property” was stored at the subject warehouse, which was owned and operated by the Defendant Warehouse 72, at the time the warehouse burned. The Plaintiff alleged claims against the Defendants for breach of contract, negligence, breach of bailment, and negligent misrepresentation.
The parties have filed competing motions seeking to exclude or limit the testimony of experts in the areas of fire origin and cause investigation and fire protection engineering— the Plaintiff seeks to exclude or limit certain opinions of Neil Wu‘s testimony and the Defendants seek to exclude testimony expected to be offered by Phillip Keena. Both motions sought primarily to ensure that the opposing expert witness does not offer impermissible legal conclusions.
The Plaintiff objected to certain testimony and conclusions in Wu’s deposition and expert report that the Plaintiff characterized as impermissible legal conclusions. The Defendants have agreed that “Wu does not intend to offer any ‘legal opinions’ and Defendants do not intend to elicit such testimony” at trial.
The Defendants argued that Keena’s proffered testimony and conclusions veer into the realm of legal conclusions; they further argued that his testimony did not go far enough into the standards a reasonably prudent warehouser would have implemented under similar circumstances as those existing in this case. As is the case with the Defendants’ expert, the Plaintiff conceded that Keena will not offer legal conclusions at trial.
Fire Investigation Expert Witnesses
Neil Wu is a Principal at SRE and the founder of the firm. He holds a Bachelor of Science and a Master of Science degree in Fire Protection Engineering, both from the University of Maryland. He is a registered professional engineer in 14 states, including the District of Columbia. Wu is a member of the International Association of Arson Investigators (IAAI), National Association of Fire Investigators (NAFI), National Fire Protection Association (NFPA), Society of Fire Protection Engineers (SFPE), and has served on multiple technical committees.
Philip Keena holds two degrees relevant to the issue at hand, an associate degree in Fire Administration and a bachelor’s degree in Fire Protection and Safety Engineering Technology. The International Association of Arson Investigators (IAAI) has also certified him as a fire investigator, and he has been a firefighter for thirty-one years. He currently works for Rimkus, a forensic engineering company.
Discussion by the Court
First, the Court holds that the concessions each party has made regarding their expert’s testimony largely renders the competing motions to exclude as moot. Both experts are highly qualified and the Court finds their knowledge will help the trier of fact to understand the evidence or to determine a fact in issue in this case, and that their testimony satisfies both Rule 702 and Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S. Ct. 2786, 125 L. Ed. 2d 469 (1993). Moreover, any arguments for exclusion of testimony, particularly in light of the parties’ concessions, go to the “weight to be assigned that opinion rather than its admissibility and should be left for the jury’s consideration.”
Further, the Court is confident that it can protect against the possibility of objectionable expert testimony at trial without resorting to a blanket ban on all testimony by either side’s expert witness.
Finally, and most crucially given the parties’ primary objections, the Court notes it is axiomatic that “experts cannot ‘render conclusions of law’ or provide opinions on legal issues.” Accordingly, neither Wu nor Keena will be permitted to offer legal conclusions at trial and counsel will not seek to elicit any such testimony. The Court does note, however, that while experts cannot offer conclusions of law, “an opinion is not objectionable just because it embraces an ultimate issue.”
The parties may offer timely objections to any such testimony at trial. The Court therefore granted each party’s motion to exclude to the extent each motion seeks to prohibit testimony that constitutes a legal conclusion; to the extent that either motion seeks further limitations on testimony, that request is denied at the present juncture. The parties may offer timely objections at trial to any testimony they deem objectionable.
Held
The parties’ competing motions to exclude expert testimony of Defendant’s expert Neil Wu and Plaintiff’s expert Philip Keena is granted in part.
Key Takeaway:
Ideally, testimony and conclusions should not veer into the realm of legal conclusions. The Court does note, however, that while experts cannot offer conclusions of law, “an opinion is not objectionable just because it embraces an ultimate issue.”
Case Details:
| Case Caption: | Kodaco Co., Ltd. V. Valley Tool, Inc. Et Al |
| Docket Number: | 3:23cv211 |
| Court: | United States District Court, Mississippi Northern |
| Order Date: | September 23, 2024 |
