Weisgram, Chad, et al. v. Marley Co., et al. (02/22/2000)

By: Khalilah L. Liptrot, Medill News Service

Questions presented

Whether it is appropriate for an appeals court to order judgment as a matter of law after determining that a plaintiffs' expert testimony should have been excluded at trial under Federal Rule of Evidence 702.

Brief

On the morning of Dec. 30, 1993, firefighters responded to a call at Bonnie Weisgram's town house in Fargo, ND. An off-duty firefighter had noticed flames around the front entrance to the home. When firefighters entered the home, they found Weisgram's body lying face down in an upstairs bathroom. An autopsy later determined that Weisgram had died from smoke inhalation, the result of carbon monoxide poisoning.

In the living room, a sectional sofa was badly damaged by fire in both sections. A 15-year-old baseboard heater manufactured by Marley Electric Company was mounted on an opposite wall. There is no dispute that the likely source of the carbon monoxide was the smoldering sofa.

Weisgram's blood alcohol level was 0.15 and evidence showed that she had taken a drug that is generally prescribed to relieve pain and aid sleep, although it was not clear from the tests whether she took it that night. She was last seen alive by her fiance' at 11:00 p.m. on Dec. 29. He observed her drink an alcoholic beverage and smoke a cigarette before he left.

Weisgam's adult son, Chad, sued Marley in federal court for his mother's wrongful death, claiming the baseboard heater was defective and the sole cause of the fire. State Farm, which insured the Weisgram home, sued Marley to recover insurance benefits paid for damage to the Weisgram town house and its contents, and benefits paid for damage to an adjoining town house.

In a consolidated trial, the jury found Marley strictly liable, based on expert testimony that concluded the heater was faulty. That expert testimony included three expert witnesses, each who concluded that the heater caused the fire.

Marley's witnesses, however, maintained that the cause and origin of the fire was not the heater, but a carelessly dropped cigarette. The scenario Marley presented at trial was that Weisgram had dropped a lighted cigarette behind a cushion of the sofa, which eventually started a smoldering fire. The smoke detector activated, and Weisgram disabled it. Believing she had doused the fire in the couch, she removed the sofa cushion to the entryway and opened a window to clear the house of smoke. The cushion and the sofa continued to smolder, producing the smoke and the carbon monoxide that eventually killed Weisgram. Under the influence of the alcohol she had consumed and the sleeping aid she had taken, she was unaware that the fires continued to burn until it was too late.

The jury awarded $500,000 to Weisgram and $100,000 to State Farm.

A divided 8th Circuit Court of Appeals reversed and entered judgment for Marley as a matter of law, holding that under Federal Rule of Evidence 702 ""'a witness qualified as an expert by knowledge, skill, experience, training or education' may give opinion testimony if, and to the extent, 'scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue.' It is the role of the district court to make certain that testimony admitted is 'not only relevant, but reliable.'""

Writing for the majority, Chief Judge Pasco Bowman said, ""Because these witnesses offered the only evidence of defect, their testimony obviously had a substantial influence on the jury's decision to find Marley strictly liable for damages. But if the heater cannot be proven to have been defective when Marley sold itÉthe plaintiffs cannot prevail."" Bowman added, ""Without the [expert] testimony at issue, the jury's verdict cannot stand.""

In dissent, Judge Myron Bright wrote, ""Fire cases differ from most accident cases because fires tend to destroy evidence of causation. As a result, theories about the cause of fires inevitably rest on circumstantial evidence. The courts traditionally permit qualified fire investigators to express opinions on the cause of fires. He added, ""As a court we are only called upon to determine whether the district court abused its discretion in permitting the experts to testify...""

The U.S. Supreme Court granted certiorari on Sept. 28, 1999, and limited review to the second question presented in Weisgram's petition.

On Feb. 22, 2000, a unanimous Court affirmed, holding that an appeals court may order judgment as a matter of law after determining that a plaintiff's expert testimony should have been excluded at trial under Federal Rule of Evidence 702.

In so holding, Justice Ruth Bader Ginsburg pointed out for the Court that Weisgram was on notice every step of the way during trial that Marley was challenging his experts, and therefore should have attempted to add or substitute other evidence.