MAGNETEK: A Case Study in the Daubert Challenge Reading List Babrauskas, Vytenis, Ph.D. “Truck Insurance v. MagneTek: Lessons to be Learned Concerning Presentation of Scientific Information.” Fire & Arson Investigator 55(2):9-10, October, 2004.* Babrauskas, Vytenis, Ph.D. “Pyrophoric Carbon…The Jury is Still Out.” Fire & Arson Investigator 51:2, 12-14, Jan. 2001.* Babrauskas, Vytenis, Ph.D. “Ignition of Wood: A Review of the State of the Art.” pp. 71-88 Interflam 2001, Interscience Communications Ltd., London 2001.* Browne, F.L. “Theories of Combustion of Wood and its Control, A Survey of the Literature.” Report No. 2136. Madison, WI: U.S. Department of Agriculture, Forest Service, Forest Products Laboratory. 1958* Burnette, Guy E. Jr. “Magnetek: New Case Applying the Daubert Standard” Internal Report, Guy E. Burnette, Jr. P.A., 2004.* Burnette, Guy E. Jr. “Daubert Revisited: Magnetek and the Death of Pyrolysis.” Fire & Arson Investigator 55(1):47-49, July, 2004.* Burnette, Guy E. Jr. “Daubert Revisited: Bitler v. A.O Smith Corp.” Internal Report, Guy E. Burnette, Jr. P.A., 2005.* Cuzzillo, B.R.; Pagni, P.J. “Myth of Pyrophoric Carbon.” Proceedings. Sixth (6th) International Symposium July 5-9, 1999. International Association for Fire Safety Science.* Fireman’s Fund Insurance Company v. Canon U.S.A, Inc., 8th Cir., No. 03-3836* LeVan, S.L. “Thermal Degradation.” Concise Encyclopedia of Wood & Wood-Based Materials, 1st Edition, pp. 271-273, 1989. White, Robert H., and Mark A. Dietenberger. “Chapter 17 - Fire Safety” Forest Products Laboratory. Wood handbook—Wood as an engineering material. Gen. Tech. Rep. FPL–GTR–113. Madison, WI: U.S. Department of Agriculture, Forest Service, Forest Products Laboratory, 1999.* White, Robert H., and Mark A. Dietenberger. “Wood Products: Thermal Degradation and Fire” Encyclopedia of Materials: Science and Technology ISBN: 0-08-0431526 pp. 9712-9716 5 “Ignition and Charring Temperatures of Wood.” Report No. 1464. Madison, WI: U.S. Department of Agriculture, Forest Service, Forest Products Laboratory.* NOTE: References identified with a (*) are included in the MagneTek: A Case Study in the Daubert Challenge participant handout. IAAI Fire Investigator Distance Learning Project JCJ 2-11-2005 GUY E. BURNETTE, JR., P.A. ATTORNEYS AT LAW Guy E. Burnette, Jr. Lucy P. Hassler, Paralegal Marc A. Peoples Tami M. McClane Paralegal Jeanie L. Martin, Office Manager MAGNETEK: NEW CASE APPLYING THE DAUBERT STANDARD The decision of the United States Supreme Court in Daubert v. Merrell Dow Pharmaceuticals, Inc., 590 U.S. 579, 125 L. ED. 2d 469, 113 S. CT. 2786 (1993) forever changed the field of expert testimony in federal court cases. It has subsequently been adopted in a number of state court jurisdictions across the country as the basis for evaluating and admitting expert testimony. In the years since the Daubert decision, expert witnesses in virtually all fields have been subjected to a new level of scrutiny by trial judges acting as the “gatekeepers” of expert testimony in court proceedings. In fire litigation cases, the effect of this decision has fundamentally altered the process of proving the origin and cause of a fire in every type of case, from a product liability action to an arson defense. A recent decision of the United States Court of Appeals for the Tenth Circuit has underscored the importance of properly evaluating and presenting expert testimony in fire litigation cases. Truck Insurance Exchange v. MagneTek, Inc., 2004 U.S. App. LEXIS 3557 (February 25, 2004) not only demonstrated the application of the Daubert standard for the admissibility of expert testimony, but effectively undermined a long- standing theory of fire science which has been used in a number of previous cases to prove the cause of a fire. The MagneTek case involved a subrogation action filed by Truck Insurance Exchange against the manufacturer of a fluorescent light ballast alleged to have caused a fire which destroyed a restaurant in Lakewood, Colorado. When the fire department first responded to the alarm, they found heavy smoke in the restaurant but no open flames. The fire subsequently broke through the kitchen floor in the restaurant from the ceiling of a storage room in the basement. Before the fire could be controlled and extinguished, it destroyed the restaurant and caused damages in excess of $1.5 million. The fire was investigated by the local Fire Protection District and a private fire investigation firm hired by the insurer. Following a thorough investigation of the fire scene, it was determined that the fire had started in a space between the basement storage room ceiling and the kitchen floor. In the basement, the investigators found the remains of a fluorescent light fixture that had been mounted to the ceiling of the storage room. December 6, 2004 They determined the light fixture had been located in the area of origin of the fire and concluded that the fire had been caused by an apparent long-term failure of the ballast in the light fixture. The remains of the fluorescent light fixture were examined by the investigators and an electrical engineer. They determined the ballast had been manufactured by MagneTek. They observed oxidation patterns on the light fixture indicating an internal failure, along with discoloration of the heating coils of the ballast suggesting it had shorted to cause overheating which resulted in the fire. The ballast contained a thermal protector designed to shut off power to the fixture when the internal temperature exceeded 232 degrees Fahrenheit. The thermal protector in the ballast was tested and appeared to function properly even after the fire. However, the investigators remained convinced that the ballast had somehow failed, overheated and started the fire. Tests were conducted with similar ballasts manufactured by MagneTek which showed that at least one of the exemplar ballasts when shorted would not cut off power to the fixture until the internal temperatures had reached at least 340 degrees Fahrenheit and would continue to provide power to the fixture even when the ballast maintained constant temperatures of 300 degrees or more. The investigators theorized that the heat from the ballast had caused pyrolysis to create “pyrophoric carbon” in the adjacent wood structure of the ceiling over a prolonged time, which would be capable of ignition at temperatures substantially below the normal range of 400 degrees Fahrenheit or more for the ignition of wood. The theory of pyrolysis and the formation of pyrophoric carbon has been the subject of a number of studies, reviews and articles by fire investigators and fire scientists. It has been cited as the cause of a number of fires having no other apparent explanation, often linked to overheated wires in structures within walls, ceilings and floor areas. As the MagneTek court would note, however, the validity of this theory has been discussed and debated by fire investigators and fire scientists for a number of years. The investigators in this case acknowledged that electrical wiring ran through the ceiling area of the storage room near the fluorescent light fixture, but discounted the possibility of a failure in the electrical wiring. They reported finding no evidence of arcing or shorting in the electrical wiring, although the fire at the restaurant resulted in the destruction of most of the electrical wiring evidence in the area. Because they concluded the fire had originated in the immediate area of the light fixture, they concluded the only source of ignition for the fire was the light fixture and its ballast. The theory of the formation of pyrophoric carbon was the foundation of the plaintiff’s case against MagneTek. The ballast in the light fixture showed no signs of failure in the thermal protector, which would have limited the heat generated by the ballast to about 232 degrees Fahrenheit. Even with the exemplar ballast whose thermal protector failed to perform as December 6, 2004 it had been designed, the temperatures generated did not exceed 340 degrees Fahrenheit. The investigators admitted the ignition temperature of wood is typically at least 400 degrees Fahrenheit and the temperatures from the ballast alone would not have been sufficient to cause ignition. Their theory that the ballast had caused the fire depended upon the concept of pyrophoric carbon to allow ignition to occur at a lower temperature within the range of the temperatures generated by the ballast. Following discovery in the case, MagneTek filed a “Daubert Motion” to exclude the testimony of the experts that the ballast had caused the fire. MagneTek asserted that the theory of pyrolysis was not sufficiently reliable and scientifically verifiable to be offered by the experts in support of their conclusion for the cause of the fire. It was a challenge to the “reliability” of the experts’ theory which required a consideration of whether the reasoning and methodology underlying the testimony was scientifically valid as mandated by Daubert and Rule 702 of the Federal Rules of Evidence. The Supreme Court in Daubert had outlined a number of factors that, while not an exclusive list of considerations for a trial court, should be examined in making the determination of reliability. Those factors include: (1) whether the opinion has been subjected to testing or is susceptible of such testing; (2) whether the opinion has been subjected to publication and peer review; (3) whether the methodology used has standards controlling its use and a known rate of error; and (4) whether the theory has been accepted in the scientific community. Daubert at 590. In proving the scientific validity of an expert’s reasoning and methodology, the court noted that “the plaintiff need not prove that the expert is undisputably correct or that the expert’s theory is ‘generally accepted’ in the scientific community. Instead, the plaintiff must show that the method employed by the expert in reaching the conclusion is scientifically sound and that the opinion is based on facts which sufficiently satisfy Rule 702's reliability requirements”.