United States District Court, C.D. Illinois, Springfield Division
WESTFIELD INSURANCE COMPANY, an Ohio corporation, as Subrogee of Onken's Inc., Plaintiff,
RICHARDSON ELECTRIC, INC., Defendant.
SCHANZLE-HASKINS, U.S. MAGISTRATE JUDGE.
matter comes before the Court on Defendant Richardson
Electric, Inc.'s (Richardson) Thirteenth Motion in Limine
to Exclude the Expert Testimony of Robert Markiewicz
(Markiewicz) under Daubert (d/e 133) (Motion). The
parties consented to proceed before this Court. Consent
to the Exercise of Jurisdiction by a United States Magistrate
Judge and Reference Order entered October 13, 2017 (d/e
129). For the reasons set forth below, the Court DENIES
2004, Westfield's subrogee, Onken's, Inc.
(Onken's) had a metal warehouse building (Building)
constructed. In December 2004, Richardson performed
electrical work in the Building. At that time, two electrical
infrared heaters (Heaters) were being installed in the
northwest portion of the Building. The Heaters hung from the
ceiling. Westfield claims that Onken's personnel hung the
Heaters from the ceiling and ran electrical lines from the
Heaters to the electrical panels in the Building, but did not
connect the Heaters to the electrical panels. Westfield
states that Defendant Richardson's personnel connected
the Heaters to the electrical panel. Richardson denies that
its personnel connected the Heaters to the electrical panels.
Richardson claims that the Heaters were already connected and
operating when its personnel performed other electrical work
at the Building. See Order entered May 30, 1017 (d/e 111)
(Order Denying Summary Judgment), at 3-5.
February 9, 2011, a fire (Fire) broke out in the Building,
causing significant damage. Westfield claims that a defective
heating element in one of the Heaters caused the fire. See
Order Denying Summary Judgment, at 5-6. Westfield brings a
claim in this action against Richardson for negligent
installation of the Heaters. See Complaint (d/e 1),
at 48-51. Richardson denies liability. Westfield disclosed
Markiewicz as one of its expert witnesses. Markiewicz is an
electrical engineer with expertise in ascertaining the cause
of fires, particularly electrical fires. Richardson does not
dispute Markiewicz' qualifications as an expert.
August 11, 2015, Markiewicz issued his Report.
Defendant's Memorandum of Law in Support of its
Thirteenth Motion in Limine to Exclude the Expert Testimony
of Robert Markiewicz (d/e 134) (Richardson Memorandum),
Exhibit 1, Markiewicz Expert Report (Report).
Markiewicz relied on the determination of Westfield's
other expert, Dan Tankersley, that the Fire originated in the
northwest portion of the Building where the Heaters were
located. The northwest portion of the Building was called the
assembly area in the Building. Markiewicz stated in his
report that the assembly area contained a shrink wrap
machine, workbench, parts boxes, stacked cardboard boxes,
three electrical panel boards, a transformer, battery
charger, a 220-volt extension cord (Extension Cord), and the
two Heaters. Markiewicz determined that at the time of the
fire, the Extension Cord was plugged into a 220-volt
receptacle, but nothing was plugged into the other end of the
Extension Cord. At the time of Markiewicz' inspection of
the Building, the circuit breaker for the Heaters was
tripped, or in the open position. See Report, at 2-3
determined that the Heaters and the Extension Cord were the
only devices in the assembly area connected to electrical
power at the time of the Fire. Markiewicz took the Heaters
and Extension Cord to his laboratory for testing and
examination. Markiewicz determined that the Extension Cord
did not start the fire because the insulation on the
Extension Cord was damaged by the fire rather than by the
Extension Cord's internal failure. Evidence of electrical
arc damage occurred after the Fire damaged the insulation and
did not cause the Fire. Report, at 3 of 5.
examined and tested the components of the Heaters, including
the heating elements. Each Heater had three heating elements.
Markiewicz determined that one of the elements in one of the
Heaters failed because it had reached the end of its useful
life. Two of the elements tested had resistances of 46.9 and
45.7 ohms, respectively, which was within normal ranges. The
faulty element had a resistance of 92.6 ohms, outside of
normal ranges, indicating that the element failed. The
element showed damage caused by an electrical arc. The metal
sheath surrounding the faulty heating element had melted in
spots. Markiewicz opined that the element failed at the end
of its useful life and caused a short circuit. The short
circuit caused a power surge, which caused sparks and melted
portions of the metal sheath surrounding the faulty heating
element. Markiewicz opined that some of the sparks and molten
metal fell on the cardboard boxes, causing them to ignite.
Markiewicz opined that the power surge also caused the
circuit breaker to trip and shut off the flow of electricity
to the Heaters. Markiewicz opined that the failure of this
heating element caused the fire. See Report, at 4-5
also reviewed an installation instruction manual for the
Heaters originally dated 1999 with a September 2005 revision
date (2005 Manual) provided to him. The 2005 Manual stated
All metal sheathed heating elements MUST be protected by
ground fault circuit interrupting breakers and/or fast acting
fuses (see below) sized as close as possible to the amps
shown on the data plate. Failure to comply could result in
electrocution, building fire or equipment damage.
Report, at 4 of 5 (emphasis in the original).
Markiewicz determined that neither ground fault circuit
interrupting (GFCI) breakers nor fast acting fuses were used
in the installation of the Heaters in the Building.
Markiewicz determined that GFCI breakers could not have been
used in this installation due to the configuration of the
wiring, but fast acting fuses could have been used. See
Report, at 8; Richardson Memorandum, Exhibit 2,
Markiewicz Deposition, at 109-14.
stated that he did not have data available for review to
determine if the use of fast acting fuses would have
prevented the damage to the heating element. Markiewicz
stated, “Therefore, it was possible that even had the
subject heater been protected by fuses the subject heating
element may still have failed in a similar fashion and
resulted in this fire.” Report, at 5 of 5.
set forth four conclusions in his Report:
• The electrical arc damage on the extension cord was a
result of fire impinging on the cord, which allowed the
conductors to come into contact with each ...