The Nebraska Supreme Court dealt with a fire that broke out in the basement of a pub in Plattsmouth, Nebraska.

A chiropractic group alleged that the negligent maintenance of equipment located in the basement of the pub caused the fire.

The plaintiff offered the testimony of Duane Wolf, a mechanical engineer, with a background in fire and explosions investigations.

The defendants filed a Daubert motion to exclude his testimony.

The court affirmed the order of the District Court, excluding Wolf as an expert witness.

The court found that as Wolf could not identify the cause of the fire, he would be excluded.

The court stated:

Wolf believed that the fire originated from a failure of one of the items of mechanical equipment in the area of the boiler. Wolf opined that, because the fire most likely originated due to the failure of mechanical equipment in the basement, the fire most likely would not have occurred if the mechanical equipment “had been regularly serviced and replaced as needed.”

Wolf was critical of Quart House’s maintenance of the boiler. He stated that boilers require annual maintenance by qualified service technicians. Wolf testified that because the boiler lacked certain modern safety features, more monitoring and maintenance were required, but he did not specify what those measures entailed. In opposition to the opinions expressed by Wolf, Quart House presented evidence that yearly inspections were not warranted for such a boiler unless problems developed and that the bar’s owner had not observed any problems since leasing the property in 2010.

While Wolf testified to his beliefs that the fire originated in the vicinity of the boiler and that the fire most likely originated in the boiler itself, he admitted that he could not with reasonable certainty identify a specific way in which the boiler caused the fire. He did testify that the boiler lacked a “low water cutoff” and that the absence of this feature posed the risk of a “dry fire.” Even so, he could not offer an opinion that the fire was caused by a dry fire. He testified that if he could have inspected the boiler, he would have looked for evidence of a dry fire. He also conceded that a dry fire could result from a progressive loss of water or a sudden one, the latter of which could not have been prevented by an inspection the month before the fire.

Wolf conceded that his report was not consistent with the National Fire Protection Association’s publication No. 921 (NFPA 921), which requires ruling out other possible causes of a fire before adopting a particular hypothesis, and he testified that a postfire forensic inspection was typically required to rule out possible causes of a fire. Wolf testified that his analysis did not determine the root cause of the fire, because the information available limited his investigation.

The district court pointed to the fact that Wolf could not offer an opinion as to the cause of the fire. The district court emphasized that, at best, Wolf could testify only that the cause of the fire was consistent with boiler failure, but he could not testify that a failure of the boiler caused the fire. The district court also noted that Wolf could not determine whether the boiler ignited due to a progressive loss of water or a sudden one and that, by Wolf’s own admission, a recent inspection would not have prevented a sudden loss of water in the boiler. Given these concessions by Wolf, the district court stated that it was mere speculation that the fire could have been prevented by regular inspections and maintenance of the mechanical equipment.

See Larson v. 401 Main Street no. S-18-168 Nebraska Supreme Court 3/2/2019