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Brown v. KIA Motors America, Inc.

United States District Court, E.D. Missouri, Eastern Division

March 20, 2018

STEPHEN BROWN, et al., Plaintiffs,
v.
KIA MOTORS AMERICA, INC., KIA MOTORS MANUFACTURING GEORGIA, INC., and KIA MOTORS CORPORATION, Defendants.

          MEMORANDUM AND ORDER

          AUDREY G. FLEISSIG, UNITED STATES DISTRICT JUDGE.

         This matter is before the Court on the motion (ECF No. 48) of Defendant Kia Motors Manufacturing Georgia, Inc. (“KMMG”) to bar the testimony and opinions of Plaintiffs' expert, Mark Sutherland.[1] For the reasons set forth below, the motion will be denied.

         BACKGROUND

         This case involves a July 5, 2013 fire, which damaged Plaintiffs' home in De Soto, Missouri and their personal property, including their new, 2013 Kia Sorento (the “Kia”).[2] Plaintiffs allege that the fire originated in the Kia, which was parked in their garage, and that the fire was caused by a defective and unreasonably dangerous condition in the Kia. Plaintiffs assert claims for strict liability, negligence, and breach of warranty.

         Plaintiffs retained Sutherland, an electrical engineer and certified fire and explosion investigator, as an expert witness to opine as to the origin and cause of the fire. In connection with his investigation, Sutherland conducted a site inspection of Plaintiffs' home on July 31, 2013; inspected the Kia on November 6, 2013; inspected Plaintiffs' boat, which was also parked in the garage at the time of the fire, on January 10, 2014; inspected an exemplar Kia Sorento on July 17, 2015;[3] and reviewed the documents produced by Defendants in discovery and the transcripts of depositions of party and non-party witnesses.

         Sutherland opined that the fire originated in the front wiring harness on the driver's side of the Kia's engine compartment.[4] This front wiring harness delivers electrical current to certain vehicle components and is designed to be held in place by plastic clips. Sutherland provided the following opinion regarding the cause of the fire:

The circumstances that caused the fire started with a manufacturing defect in the [Kia]. The front wiring harness was not properly secured to the vehicle, which allowed the wiring harness to come in contact with the sharp edge of the front fender. This resulted in an abrasion of the wiring sleeve and insulation, allowing the wiring harness to electrically short to the grounded vehicle frame which resulted in the fire.

         ECF No. 57-6 at 18. Sutherland further opined that “[t]he wiring harness failure was the result of an installation error during the manufacturing of the [Kia].” Id.

         Sutherland's report stated that his opinions were based on the scientific method as outlined in the National Fire Protection Association (“NFPA”) Section 921, a guide for fire and explosion investigations. As to the origin of the fire, Sutherland stated that he followed NFPA 921's instruction to coordinate information from witness statements; fire patterns; arc mapping;[5] and fire dynamics, described as the “physics and chemistry of fire initiation and growth and the interaction between the fire and the building[].” Id. at 9.

         As to causation, Sutherland stated that he followed NFPA 921's instructions to identify the factors necessary for the fire to have occurred, including “[t]he presence of a competent ignition source; [t]he type and form of the first fuel ignited; and [t]he circumstances, such as failures or human actions, which allowed the factors to come together and start the fire.” Id. at 12. Sutherland also stated that he considered other potential ignition sources, including the boat battery charger, electrical appliances in the garage, and the garage electrical system, but he ruled out these sources based on arcing, fire dynamics, burn damage, the fact that the devices were not plugged in at the time, and the lack of any noted failure or malfunction on these devices. Id. at 15.

         In an affidavit submitted in connection with Plaintiffs' response to the current motion, Sutherland attested that he has performed over 1, 000 fire investigations, including over 300 scientific and engineering evaluations alleged to be associated with vehicles, 150-200 of which involved electrical-based fires and manufacturing defects. Sutherland further attested as to his extensive experience in investigating the wiring and engine compartments of vehicles to determine if a manufacturing or design defect caused a fire, including his experience offering opinions on vehicle design and manufacturing defects as an expert witness in nine cases. Sutherland attested that he has never been disqualified from offering an expert opinion as to the cause and origin of a vehicle fire, or as to the presence of a manufacturing defect in a vehicle. ECF No. 57-7.

         As to his opinion regarding the improper installation of the front wiring harness, Sutherland's report stated that he found a piece of the harness welded to the edge of the Kia's body at the interior of the engine compartment. The harness contained 10 heavy wires, three of which were rated for 60 amps of current. According to Sutherland, at the time of his inspection of the Kia, the harness was found approximately three inches below and three inches in front of the place where the harness was secured in the exemplar vehicle.

         Sutherland testified at his deposition that the basis for his opinion that the wiring harness was not installed correctly, as opposed to the fire having caused the harness to move from its intended location, was that the harness was rigid as a result of the heavy gauge wires running through it, and the harness would not have moved a distance of three inches without the application of outside forces acting upon it. Sutherland testified that the fire would not have caused the harness to move, even if the clips had melted, and the only way the harness would have moved from its designed location to the location where it was found in the Kia was if the wire itself melted. And based on Sutherland's inspection, the wire in this case never reached the melting point. ECF No. 57-8, Sutherland Dep. at 158-161.

         Sutherland further based his opinion on his inspection of the exemplar vehicle. He testified that he removed the plastic clips securing the harness in the exemplar vehicle, and the harness did not move. Rather, he had to apply physical pressure to move the exemplar harness to the location at which it was found in the Kia. Thus, Sutherland opined that the Kia's harness must have been out of position at the time the Kia left the factory. Id. However, Sutherland admitted that he did not specifically test for how much pressure was necessary to move the harness the three inches in question, he did not conduct any testing to evaluate the effect of the fire upon the rigidity of the harness, and at the time that he applied physical pressure to the exemplar harness, the harness was not being subjected to heat. Id. at 161-63.

         As to the ignition of the fire, Sutherland testified that, based on his examination of the Kia and his prior experience in conducting prior live vehicle burn tests to simulate vehicle fires and electrical failure modes, the heat produced at the point where the harness wires were welded to the Kia's frame was sufficient to ignite the wire insulation and the protective nylon sleeve that encased the circuits in the harness; Sutherland opined that the fire thereafter continued to spread to other combustible items in the engine compartment. Id. at 105-06. Sutherland based his opinion on the information about electrical shorts and ignition of fires in NFPA 921 and the Ignition Handbook by Vytenis Babrauskas, Ph. D.[6] Id. at 133-34.

         However, Sutherland admitted that he had not conducted any independent testing to verify how much pressure was necessary for the wire to become “exposed as a contact point for the short.” Id. at 163. Sutherland further admitted that all circuits within the front wiring harness were fused-the effect of the fuse being to limit the amount of current that could flow in the event of an electrical short-and that he had not examined the fuses. Sutherland testified that he had not measured “the amount of time between when a short occurs on that circuit and when the fuse actually blows”; nor had he tested “how long it would take an electrically shorted wiring harness to ignite into fire.” Id. at 165-66. In response to questioning as to his lack of testing of whether the fuses in the harness would have shut down the circuit in sufficient time to prevent a fire, Sutherland testified as follows:

A fuse itself is either open or closed. There's no time involved . . . . Circuit breaker there's time. Fuses operate on a different principle. They only operate on current flow. So when they reach a certain current flow, they open and it's instantaneous. There's no shutdown procedure or anything involved. . . . So when a short could occur and it could continue to-to provide power as long as ...

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