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Westfield Insurance Co. v. Richardson Electric, Inc.

United States District Court, C.D. Illinois, Springfield Division

August 2, 2018

WESTFIELD INSURANCE COMPANY, an Ohio corporation, as Subrogee of Onken's Inc., Plaintiff,
v.
RICHARDSON ELECTRIC, INC., Defendant.

          OPINION

          TOM SCHANZLE-HASKINS, U.S. MAGISTRATE JUDGE.

         This 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 the Motion.

         BACKGROUND

         In 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.

         On 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.

         On 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 of 5.

         Markiewicz 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.

         Markiewicz 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 of 5.

         Markiewicz 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 that:

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.

         Markiewicz 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.

         Markiewicz 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 ...

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