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American Family Mut. Ins. Co. v. Hewlett-Packard Co.: US District Court : EVIDENCE - expert testimony on fire origin; possible v. probable; standards; fact questions

American Family Mutual Insurance
Civil No. 07-792 ADM/AJB
Hewlett-Packard Company,
Steven L. Theesfeld, Esq., and David J. Taylor, Esq., Yost & Baill, L.L.P., Minneapolis, MN, on
behalf of Plaintiff.
Rachel B. Peterson, Esq., and Andrew L. Marshall, Esq., Bassford Remele, PA, Minneapolis,
MN, on behalf of Defendant.
The undersigned United States District Judge heard oral argument on Defendant Hewlett-
Packard Companys (Hewlett-Packard) Motion for Summary Judgment [Docket No. 12] on
February 14, 2008. Plaintiff American Family Mutual Insurance Company (American Family)
sued Hewlett-Packard to recover the 0,091.35 American Family paid to its insured in
satisfaction of claims arising under the policy. American Family asserts that Hewlett-Packard is
liable under the following theories: (1) negligent manufacture or design; (2) failure to warn; (3)
strict liability; and (4) breach of warranty. For the reasons stated herein, Hewlett-Packards
Motion is denied.
1 On a motion for summary judgment, the Court views the evidence in the light most
favorable to the nonmoving party. Ludwig v. Anderson, 54 F.3d 465, 470 (8th Cir. 1995).
This case involves a dispute over who should bear the costs arising out of a fire at the
home of American Familys insureds, Henry and Diana Harris (the Harrises). On September
6, 2005, a fire occurred at the Harris home in Minneapolis, Minnesota. Marshall Aff. [Docket
No. 15] Exs. C, D. The Harrises had returned home that night after being on vacation for several
days. Id. At approximately 2:54 a.m. on September 6, 2005, Mr. Harris awoke to the sound of
the smoke detector and the smell of smoke. Marshall Aff. Ex. C at 2. Mr. Harris alerted his
wife, who was sleeping in a first-floor bedroom, and determined that the fire was in the secondfloor
attic of the home. Id. Before the fire, Mr. Harris son had been occasionally staying at the
home, using the attic area for a bedroom. Marshall Aff. Ex. D at 3. Mr. Harris son had been
staying at the home with his two cousins while the Harrises were away on vacation. Marshall
Aff. Ex. B. When the fire department arrived, Mr. Harris asked the firefighters to check for his
son because he was unsure whether his son might be in the house. Id. The fire department
determined that Mr. Harris son was not in the home. Id.
The second floor of the Harris home is a finished attic. Marshall Aff. Ex. D at 2. The
attic is a large space used as a bedroom and office. Id. The attic is approximately twelve feet
wide and twenty-nine feet long and runs east to west lengthwise. The attic area is in the shape of
an isosceles trapezoid.2 The flat portion of the ceiling, which runs north to south, is
approximately four feet wide and then slopes downward following the roof line. Marshall Aff.
Ex. C. As the ceiling slants down towards the edge of the roofline, it is bisected by a short wall,
referred to as a knee wall. Marshall Af f. Ex. D at 2. The area between the knee wall and the
roofline is used as storage. Id. There was a bed located along the west wall, a TV stand east of
the bed along the south knee wall, and a desk and shelf east of the bed along the north knee wall.
Id. at 3. On the desk and shelf was a Gateway computer and a Hewlett-Packard Apollo printer
(the HP Apollo printer). Id.
Minneapolis Fire Department Investigator Vicki Hoff (Hoff) conducted an
investigation of the fire scene on September 8, 2005. Marshall Aff. Ex. C. On September 9,
2005, Thomas Haney (Haney), an American Family Special Investigations Unit senior field
investigator who had been assigned to the Harris fire, went to the Harris home to investigate the
fire scene. Marshall Aff. Ex. E at 39. Haneys investigation focused on determining the origin
of the fire, while determination of the cause of the fire was the responsibility of Anderson
Engineering. Marshall Aff. Ex. G, at 7-8. On September 15, 2005, Andrew Paris (Paris), with
Anderson Engineering, investigated the fire scene for American Family. Marshall Aff. Ex. D.
On October 6, 2005, Anderson Engineering conducted a second scene inspection, this time with
representatives of eMachines/Gateway, the manufacturer of the computer and monitor, and
Hewlett-Packard, the manufacturer of the HP Apollo printer. Id.
Hoff concluded that the fire started in the cockloft area but was unable to determine the
cause; Hoff theorized that the fire was most likely caused by the thunder and lightning storm in
the area the night of the fire:
In conclusion, the fire started in the second story cockloft area. . . . This is
where all the electrical wiring was located as well as junction boxes for several
lights and a ceiling fan. The electrical wiring in this cockloft area was heavily
damaged by the fire. The charring was greatest in the cockloft area. Firefighters
reported that when they knocked the fire down, the entire covering of the ceiling
was already consumed by the fire. I did not find any evidence of low level
burning or any burning at the floor level. Smoke demarcation was visible to
approximately 1 ft. from the floor in the area where the heaviest fire damage was
to approximately 4-5 ft. in the east section of the attic area/room of origin. There
was no fire extension into the walls or burning through the roof. . . .
However, I cannot pinpoint an exact cause of the fire. It is most likely this is an
electrical fire and could be related to the thunder and lightning storm that was
occurring just prior to the discovery of the fire.
Marshall Aff. Ex. C. Hoff noted that the damage was worse on the west end of the attic. Id.
The Anderson Engineering report provides a discussion of the home layout and
construction; the fire sequence of events; the burn patterns and area of fire origin (including a
detailed discussion of the fire damage to the furniture and electronic equipment); the homes
electrical system, the artifacts recovered from the scene and the facts derived from examining
those artifacts; the testing Anderson Engineering performed as part of its investigation; analysis
of the data gathered during its testing; the probable hypotheses of ignition; and Anderson
Engineerings ultimate conclusions. Marshall Aff. Ex. D. Based on Paris initial investigation
of the fire scene, Anderson Engineering concluded that the fire originated along the north wall
of the second floor bedroom, near a desktop computer and associated equipment. Id. at 1.
Accordingly, Anderson Engineering focused its second investigation on its determined area of
origin and recovered the following artifacts from the scene: (1) the computer desk, the stand, the
computer, and the associated equipment (including the HP Apollo printer); (2) three receptacles
that powered the electronic equipment; (3) carpet and debris samples from the area near the desk
and the area of lowest burning; (4) two light fixtures on the west end of the attic bedroom and
their associated wiring; and (5) the circuit breaker protecting the circuit that traveled up from the
basement to the attic bedroom circuit. Id. at 4-5. Anderson Engineering performed tests on an
exemplar HP Apollo printer and on other fire scene artifacts. Id. at 2.
Anderson Engineering identified five probable hypotheses of ignition: (1) A failure o[f]
the desktop computer ignited the fire; (2) The fire occurred due to a failure of the computer
monitor; (3) Failure of one of the other electrical devices resulted in the fire; (4) The fire
occurred due to an arcing event or other failure of the printer line cord; and (5) The fire was
caused by an internal failure within the printer. Id. at 12. Based on its investigation, Anderson
Engineering concluded that hypotheses one through three did not fit the evidence of the case,
that hypothesis four was unlikely, and that hypothesis five best fit the evidence. Id. at 13.
Accordingly, Anderson Engineering concluded that the HP Apollo printer was the most
probable source of ignition located in the area of fire origin. Id.
In support of its conclusion, Anderson Engineering explained that the printer sustained
damage indicative of a long-term, developing component failure leading to localized heating,
thermal runaway, or catastrophic failure. Id. Further, Anderson Engineering explained that the
burn patterns in the attic reflect the damage sustained by the printer and support a fire
origination at the printer. Id. Finally, Anderson Engineering stated that based on the type of
equipment involved in the fire; the condition of the artifacts recovered from the scene; the
circumstances of the fire; the testing performed on the exemplar printer; and the experience,
education, and training of its engineers; it concluded that the fire in the Harris residence was
caused by a component failure or manufacturing defect of the HP Apollo printer. Id. Despite
concluding that the printer had an internal or manufacturing defect, Paris stated that he was
unable to determine a specific component failure within the printer. Paris Dep. (Theesfeld Aff.
[Docket No. 20] Ex. B) at 12. Instead, Paris stated that based on the totality of the evidence it
was his belief that there was a general component failure in the printer. Id. at 14. Paris
explained that while it was his opinion that the fire originated within the printer, most likely on
the circuit board, he was unable to determine what component specifically failed because of the
significant fire damage. Id. at 15. Despite his inability to determine the specific component
failure, Paris explained that the burn pattern, the electrical evidence in the attic, the sequence of
the events, and the testing he performed, supported his conclusion that the printer experienced a
general defect failure and that the fire stared from within the printer. Id. at 14-15.
A. Standard of Review
Federal Rule of Civil Procedure 56(c) provides that summary judgment shall issue if the
pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no
genuine issue as to any material fact and that the movant is entitled to judgment as a matter of
law. Fed. R. Civ. P. 56(c); see Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S.
574, 587 (1986); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252 (1986); Celotex Corp. v.
Catrett, 477 U.S. 317, 323 (1986). On a motion for summary judgment, the Court views the
evidence in the light most favorable to the nonmoving party. Ludwig, 54 F.3d at 470. The
nonmoving party may not rest on mere allegations or denials, but must demonstrate on the
record the existence of specific facts which create a genuine issue for trial. Krenik v. County of
Le Sueur, 47 F.3d 953, 957 (8th Cir. 1995).
B. Admissibility of Expert Testimony
The standards regarding the admissibility of expert testimony are set forth in Federal
Rule of Evidence 702 and Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993).
Rule 702, which was amended in 2000 to reflect the analysis in Daubert, requires district courts
to act as gate-keepers and ensure the reliability and relevancy of expert testimony. Fed. R. Evid.
702, cmts. to 2000 Amendments; see Kumho Tire Co. v. Carmichael, 526 U.S. 137, 149 (1999);
see also Fed. R. Evid. 104(a). District courts may admit expert testimony to help the jury
understand the evidence or determine a disputed fact if: (1) the witness qualifies as an expert by
his or her knowledge, skill, experience, training, or education; (2) the witness bases his or her
testimony on sufficient facts or data; (3) the testimony is the product of reliable principles and
methods; and (4) the witness has applied the principles and methods reliably to the facts of the
case. Fed. R. Evid. 702. The proponent of the expert testimony must prove its admissibility by
a preponderance of the evidence. Lauzon v. Senco Prods., Inc., 270 F.3d 681, 686 (8th Cir.
2001) (citing Daubert, 509 U.S. at 592 n.10).
In Daubert, the U.S. Supreme Court outlined four nonexclusive factors courts may weigh
in determining admissibility. 509 U.S. at 593-94. These include: (1) whether the theory or
technique has been tested; (2) whether it has been subjected to peer review and publication; (3)
the theory or techniques known error rate; and (4) whether the theory or technique is widely
accepted. Id. Courts may consider other factors as well, including whether the proposed expert
ruled out other alternative explanations, and whether the proposed expert sufficiently connected
the proposed testimony with the facts of the case. Lauzon, 270 F.3d at 687.
Hewlett-Packard argues that the expert witness reports produced on behalf of American
Family by Anderson Engineering are unreliable and do not present evidence that will be
admissible at trial. Hewlett-Packard contends that Anderson Engineering failed to use reliable
principles and methods in developing its report, specifically, Hewlett-Packard faults Anderson
Engineering for failing to exclusively follow the methodology set forth in the National Fire
Protection Associations Guide for Fire and Explosion Investigations (NFPA 921), which it
contends is the industry standard. American Family contends that Anderson Engineering offered
a sophisticated methodology supporting its theory of the cause of the fire and that a failure to
follow NFPA 921 should not disqualify Anderson Engineerings report. American Family
asserts that while NFPA 921 is recognized as a reliable method, it is not the only reliable method
of fire investigation. Accordingly, it asserts that Anderson Engineerings decision to use a
methodology that borrows from NFPA 921 as well as other guides, such as Kirks Fire
Investigation and The Ignition Handbook, does not establish that Anderson Engineerings report
is per se unreliable.
Hewlett-Packard has cited no case law to support the proposition that a failure to strictly
adhere to NFPA 921 renders an investigation per se unreliable. NFPA 921 is not the exclusive
standard for investigating fire and explosion. Accordingly, the Court will not exclude Anderson
Engineerings report simply because Anderson Engineering did not use NFPA 921 as its sole
standard methodology.
Hewlett-Packard also asserts that the Court should exclude Anderson Engineerings
report because Anderson Engineering failed to compare its hypotheses to all the known facts of
the case:
[Anderson Engineerings] report does not discuss, or even mention: the potential
role that the Harris son or his cousins may have had; the thunderstorm in the area
on the night of the fire; the previous leaking through light fixtures that existed in
the Harris home; the extensive damage to the cockloft area; or the reasons for
reaching a different conclusion from that of Vicki Hoff . . . .
Def.s Mem. in Supp. of Mot. for Summ. J. [Docket No. 14] at 18. American Family asserts that
Anderson Engineering accumulated and reviewed all available evidence and used this to
pinpoint the fires cause to an area of origin. Pl.s Mem. in Oppn to Def.s Mot. for Summ. J.
[Docket No. 19] at 4. American Family also contends that an argument that Anderson
Engineerings methodology is lacking for failing to consider other causes improperly calls on the
Court to weigh the evidencea task that they contend is not proper on summary judgment.
Anderson Engineering did fail to discuss in its report the factors listed by Hewlett-
Packard; however, Anderson Engineering explained that this was so because of its determination
regarding the origin of the fire. In her deposition, Beth Anderson, of Anderson Engineering,
explained why Anderson Engineering ruled out the factors listed by Hewlett-Packard:
They talk about smoking and candles, for instance. We dont have any
people up there during that two hours and we dont find any physical evidence of
smoking materials or candles in that area.
Also they were critical of the lightning issue because of the thunder storm
and the previous history and so on, and I think a couple of facts help us eliminate
that. One is that the lightning reports that were done indicate that lightning did
not strike the house that night. There is no other physical evidence to suggest that
lightning did strike the house in the electrical system.
Anderson Dep. (Theefeld Aff. Ex. C) at 48-49. Anderson was also able to explain the reasons
why they disagreed with Hoffs opinion that the fire originated in the cockloft area. Id. at 42-43.
Accordingly, it appears that Anderson Engineering did consider other possible points of origin of
the fire. Whether they correctly determined the area of origin and whether their decision to
disregard the factors listed by Hewlett-Packard was mistaken presents a fact issue.
Next, Hewlett-Packard argues that because Anderson Engineering determined there were
five probable hypotheses of ignition, Anderson Engineering was required, according to NFPA
921, section 18.6, to classify the cause of the fire as undetermined. In questioning Paris and
Beth Anderson, Hewlett-Packard focused on Anderson Engineerings use of the word probable.
Paris Dep. at 76; Anderson Dep. at 58-60. NFPA 921 defines probable as more likely true
than not . . . the likelihood of the hypothesis being true is greater than 50%. Def.s Mem. in
Supp. of Mot. for Summ. J. at 14 (quoting NFPA 18.6). Possible is defined as feasible but
not probable: If two or more hypotheses are equally likely, then the level of certainty must be
possible. Id. In their deposition testimony, Paris and Beth Anderson made clear that they did
not rely exclusively on NFPA 921 in drafting the Anderson Engineering report and did not
utilize the term probable as defined by NFPA 921. Paris explained:
Q: So youve identified five different hypotheses. Each one has a greater
than 50 percent chance of being correct?
A: No.
Q: So then they arent probable?
A: I guess it would be possible by your definition.
Paris Dep. at 76. Beth Anderson admitted during her deposition that the use of the term probable
in the Anderson Engineering report was not in compliance with NFPA 921, but she also made
clear that Anderson Engineering did not rely exclusively on the methodology and standards set
forth in NFPA 921. Anderson Dep. at 59.
Again, although compliance with NFPA 921 may be an important credential for expert
testimony, it does not have talismanic significance. Here, American Familys experts have made
clear that they identified five possible hypotheses of ignition and then used the scientific method
to determine which of the five hypotheses is most probable. Although Anderson Engineering
used the term probable in its report, the deposition testimony of Paris and Beth Anderson make
clear that by probable, Anderson Engineering meant possible. Further, as the Court has
already found, even if Anderson Engineering had failed to comply with NFPA 921, there may
still be an evidentiary basis for admissibility of the report.
Finally, in its reply brief Hewlett-Packard argues that the Court should exclude American
Familys expert testimony because Anderson Engineerings testing did not replicate the scenario
that occurred the night of the fire and because the conditions of the exemplar printer were not
identical to the HP Apollo printer. Absent some reason for failing to raise an argument in an
opening brief, this court will not consider an argument first raised in a reply brief. United
States v. Brown, 108 F.3d 863, 867 (8th Cir. 1997). In its opening brief, Hewlett-Packard raised
the issue of Anderson Engineerings testing in support of its argument that American Family has
no facts demonstrating causation, but there is no mention of Anderson Engineerings testing in
the argument section advocating for the exclusion of expert testimony. However, in support of
its arguments that the testing did not support causation, Hewlett-Packard did cite cases where
expert testimony was excluded because the experts testing was not reflective of the fire scene
and the artifacts and did not support the experts hypothesis. Def.s Mem. in Supp. of Mot. for
Summ. J. at 20 (citing Hughes v. Black & Decker (US), Inc., No. 05-1536, 2007 WL 624333 (D.
Minn. Jan. 24, 2007)). Because this is arguably sufficient to notify American Family that
Hewlett-Packard was challenging the expert testimony based on Anderson Engineerings testing,
the Court will address this argument.
Hewlett-Packard faults Anderson Engineering for failing to replicate the scenario that
occurred at the fire and the exact conditions of the HP Apollo printer; however, Hewlett-Packard
has not asserted that the testing Anderson Engineering performed is not informative, fails to
support Anderson Engineerings conclusions, or is contradictory. This is very different than
Firemans Fund Insurance Co. v. Canon U.S.A., Inc., where the defendants expert filed a report
challenging the plaintiffs theory, the defendant demonstrated that the testing plaintiffs experts
performed did not support their opinions, and where the defendant pointed out that plaintiffs
experts failed to reconcile empirical evidence with their theory of causation. 394 F.3d 1054,
1057 (8th Cir. 2005).
Section 20.5.3 of NFPA 921, the methodology endorsed by Hewlett-Packard, explains
that it may be impossible for fire testing to recreate the conditions of the fire and that the
conditions that the testing cannot replicate should be considered in reaching conclusions based
on the test results. Hewlett-Packard does not contend that in reaching its ultimate conclusion,
Anderson Engineering failed to consider the differences between the testing it conducted and the
actual scenario that occurred or that Anderson Engineering failed to consider the differences
between the exemplar printer and the HP Apollo printer. The fact that there are conditions
Anderson Engineering could not replicate does not, by itself, require that the Court exclude the
testimony of Anderson Engineering as unreliable.
C. Causation
To recover on claims of negligence, failure to warn, strict liability, and breach of
warranty, the plaintiff must demonstrate causation. Firemans Fund, 394 F.3d at 1060; Germann
v. F.L. Smithe Mach. Co., 395 N.W.2d 922, 924 (Minn. 1986). Hewlett-Packard asserts that it is
entitled to summary judgment on American Familys claims for negligence, failure to warn,
strict liability, and breach of warranty because American Family cannot prove that the HP
Apollo printer was defective or that the defect caused the fire. Hewlett-Packard asserts that the
only evidence American Family has that the HP Apollo printer was defective is its proposed
expert testimony. Hewlett-Packard contends that this is insufficient to support causation because
the expert testimony is based on testing that failed to replicate the scenario at the fire and
because Anderson Engineering did not disprove the theory that the fire originated in the cockloft
and burned top down. Hewlett-Packards argument is essentially that for the same reasons that it
believes the Court should exclude American Familys experts, American Family has failed to
establish a genuine issue regarding causation.
Having decided not to exclude American Familys expert testimony, there is a genuine
issue on the record regarding causation. Although Anderson Engineering was unable to
determine which specific component within the HP Apollo printer failed, it stated its belief that
there was a general component failure, the reasons why it came to that conclusion, and the
reasons why it ruled out other hypotheses. When asked what evidence indicated that there was a
general component failure in the printer, Paris explained: The burn patterns on the scene, the
electrical evidence in the room, the sequence of events, [and] testing. Paris Dep. at 14-15.
Paris further explained what facts supported his conclusion: I believe an internal source would
have caused more damage to the printer than an external fire. There was a monitor right next to
the printer that was hit by fire and its interior components were not as damaged as the printer.
Id. at 19. This testimony creates a genuine issue of fact and it is for the jury to assess the
credibility of experts allowed to testify at trial. Once again, this case is distinguishable from
Firemans Fund where the experts testimony demonstrated that the tests performed did not
support the experts conclusion and the experts failed to reconcile empirical evidence with their
theory of causation. 394 F.3d at 1058-61.
Based upon the foregoing, and all the files, records, and proceedings herein, IT IS
HEREBY ORDERED that Defendants Motion for Summary Judgment [Docket No. 12] is
s/Ann D. Montgomery
Dated: May 19, 2008.


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