April 30, 2014Subrogation Alert - Hodges v. Federal-Mogul Corporation
A recently-published decision of the U.S. District Court for the Western District of Virginia should be expected to have an immediate impact on the use of expert testimony in subrogation cases in that region. The case, Hodges v. Federal-Mogul Corporation, (VLW 014-3-129), focused upon the admissibility of expert testimony in a personal injury lawsuit. In a bold move, the federal judge blocked the testimony of Plaintiffs’ experts and dismissed the personal injury case after hearing pre-trial motions. In issuing his written ruling, the federal judge applied detailed science-based standards for evidence regarding the cause and origin of a powerful industrial explosion.
The worker’s compensation subrogation claim arose from an explosion and fire at a ball bearing plant. The plant hired the Plaintiffs’ employer to clean the aluminum dust from ducts that led to an outside building called a “baghouse.” Aluminum dust is highly explosive and experts have attributed fault for similar explosions and deaths in Indiana and in China to its use.
In order to remove the aluminum dust, the Plaintiffs attached lengths of PVC piping to the ends of their vacuums, and used the vacuums to remove the dust that accumulated to several inches in certain places. The Plaintiffs testified that they were receiving electrical shocks from static electricity as they cleaned the ducts, and their equipment was not grounded. The ensuing explosion caused serious injuries to the Plaintiffs.
Plaintiffs blamed the explosion on an exothermic reaction in the baghouse; an exothermic reaction generates heat and such a reaction can occur when aluminum dust and water interact. Plaintiffs’ expert witnesses opined that the exothermic reaction led to a buildup of heat within the baghouse, which ignited airborne aluminum dust within the baghouse.
Defendants rebutted Plaintiffs’ claims by blaming the Plaintiff workers themselves. Defendants’ expert witnesses opined that the workers ignited the explosive dust with the static electricity generated by the dust and PVC pipes.
Cause – Plaintiffs’ expert witnesses did not use sufficiently reliable methodology to render an opinion as to the cause of the explosion. Plaintiffs’ experts relied upon a very broad overview of the general concept of an exothermic reaction, but neither could provide a description of the necessary quantities or proportions of the elements contributing to an exothermic reaction present in the baghouse at the time that the dust particles were ignited. The judge noted that a heat source, such as an exothermic reaction, is not equivalent to an ignition source. In failing to have an opinion that established an ignition source, the judge found that Plaintiffs’ expert opinions were insufficient and unreliable.
Origin - Plaintiffs’ experts could not offer an opinion as to the point of the explosion’s origin. While Plaintiffs contended that they did not need to show where the explosion began, only that the baghouse was improperly ventilated, the Court found that it was the Plaintiffs’ burden to show that the explosion occurred in the baghouse, as opposed to the ductwork.
In making its findings, the Court relied heavily upon NFPA 921 and its guidelines for fire origin and cause investigations. The Court elevated the “guideline” aspect of NFPA 921 to state that its methodology is the basis for determining reliability of expert opinions. In its analysis, the Court weighed the treatment of physical evidence, witnesses’ statements, and a lack of testing to conclude that Plaintiffs’ experts strayed from the “heighten[ed] rigor” of NFPA 921’s scientific methodology. As such, Plaintiffs’ experts’ opinions were not derived from any accepted methodology, and were unreliable.
Subrogating parties must take heed of the Court’s opinion in the case of Hodges v. Federal-Mogul Corporation. If you are bringing a claim based upon a fire cause and origin investigation, your expert witnesses must adhere to the scientific method presented in NFPA 921. Courts stand ready to exclude expert opinion where the expert strays from the rigors of that scientific standard. NFPA 921 requires the expert to develop a hypothesis of a fire’s origin and cause based upon all of the available evidence, and that hypothesis must be tested; if a hypothesis fails to account for all evidentiary factors, it must be excluded. The Plaintiffs’ rejection of static electricity as the ignition source without any explanation was particularly troublesome for the Court, and greatly aided the Court in reaching its ultimate opinion that Plaintiffs’ expert witnesses failed to account for all evidentiary factors.
Although not specifically mentioned by the Court, the Court’s opinion is exactly in line with NFPA 921’s prohibition against the negative corpus opinion. The negative corpus opinion eliminates all ignition sources found in the area of origin, and then claims that the scientific method allows for the opinion to support an ignition source for which no evidence exists; the ultimate opinion is that something must have caused the fire, even if there is no evidence to demonstrate what exactly was the cause. In the Hodges case, this is exactly the type of opinion that Plaintiffs’ experts were attempting to offer. In excluding these opinions, the Court took specific note of NFPA 921’s requirements to consider all the evidence, and not to simply reject conflicting evidence.
Finally, the Hodges case serves as a warning and example of those cases in which expert opinions are not carefully explored, and cases not properly investigated. A successful subrogation team is comprised of many people with distinct roles, and expert witnesses, even those with many years of experience, cannot be charged with constructing the necessary legal theories for recovery. Similarly, attorneys cannot blindly accept the opinions of their retained experts, but owe the client a thorough and challenging vetting of all proposed opinions. In the Hodges case, it was clear that the expert witnesses thought they did not need to know the exact area of origin of the explosion, or the ignition source, but it was the Plaintiffs’ attorneys’ responsibility to shore up the legal arguments with that knowledge. Bad cases do not get better with ill-informed expert witnesses.
The Hodges case will now become the seminal case for defendants to employ to challenge a case in which the plaintiff does not know the cause or origin of a fire. Not all subrogation cases depend on that knowledge, but those that do should expect to be held to the standard established in the Hodges decision. Defendants may argue that that knowledge of the cause and origin of the fire is always mandatory. However, and as the Hodges court points out, if the area of origin and ignition source are at issue, the subrogating party must be able to offer a reliable opinion on these subjects, or risk the dismissal of their action.
This Subrogation Alert was prepared by Owen J. Curley, Esquire. Mr. Curley is a litigation partner leading the subrogation practice at Niles, Barton & Wilmer, LLP. He can be reached by phone at (410) 783-6426, or by email at firstname.lastname@example.org.
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