# Lee v. State Farm Fire and Casualty Company

> District Court, E.D. Missouri · June 26, 2023

URL: https://www.frixlaw.com/law-library/cases/10238888

## Case

- **Court:** District Court, E.D. Missouri
- **Decided:** June 26, 2023
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10238888

## How later opinions describe it (automated extraction)

- stating that the “evidentiary inquiry is meant to be flexible and fact specific, and a court should use, adapt, or reject Daubert factors as the particular case demands”

## Opinion text

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION

KENNY LEE, et al., )
)
Plaintiffs, )
)
v. ) Case No.: 4:22-cv-00476
)
STATE FARM FIRE AND )
CASUALTY COMPANY, et al., )
)
Defendants. )
)

MEMORANDUM AND ORDER

The matter is now before the Court on Plaintiffs’ Motion to Exclude the Expert
Testimony of Caitlyn Head and Laurel Mason in this insurance lawsuit invoking the
Court’s diversity jurisdiction. Doc. No. 34. For the reasons set forth below, the motion
will be denied.
BACKGROUND
Plaintiffs Kenny Lee and Pamela Lee filed this action against Defendants State
Farm Fire and Casualty Company (“State Farm”) and its employee Karen Gillespie
(“Gillespie”) in the Circuit Court of Osage County in February 2022, asserting claims of
defamation and vexatious refusal. In April 2022, the matter was transferred to
Gasconade County and was thereafter timely removed to this Court on the basis of
diversity jurisdiction. Doc. No. 1.
This matter arises from a fire that occurred at Plaintiffs’ residence on March 10,
2020. Plaintiffs sought coverage for their real and personal property loss under their
insurance policy with State Farm, which was ultimately denied.
There are conflicting reports and information as to whether the fire was accidental
or intentional. On March 10, 2020, the Potosi Fire Protection District report noted that

the cause of ignition was unintentional and the factor contributing to ignition was a heat
source too close to combustibles. Doc. No. 29-7 at 1. On March 12, 2020, the State
Farm claim file states that the origin and cause investigator, Joe Garland, “found
evidence of an inexpensive small extension cord that was used to run power to a space
heater in the living room. The cord overheated and caught nearby combustibles on fire.”

Doc. No. 29-6 at 1.
On March 17, 2020, an anonymous caller told State Farm that the fire was set
intentionally, but later rescinded his statement, explaining that he was “lying and wanted
to make [Plaintiffs’] lives hell.” Doc. No. 29-8 at 1. On March 24, 2020, the fire
investigation was reopened; State Farm’s certified fire investigator returned to Plaintiffs’

house and conducted a secondary observation and collected a sample of the fire debris.
The sample was sent to Analytical Forensic Associates where it was tested for the
presence of accelerants by Caitlyn Head, a forensic scientist. Trace amounts of gasoline
were found in the sample. Based on this finding, the State Farm fire investigator
determined that the fire was set intentionally. Upon this determination, State Farm

denied Plaintiffs’ claim.

2
Challenged Expert Testimony
As relevant to the present motion, Defendants seek to offer the expert testimony of
chemists Caitlyn Head, ABC-FD and Laurel Mason, F-ABC, both of whom would opine

about the testing and analysis of the fire debris sample and the issue of “gasoline
tracking.”
Caitlyn Head, ABC-FD
Caitlyn Head is a forensic scientist certified by the American Board of
Criminalistics (ABC) as a Fire Debris Specialist (FD). Doc. No. 36-1. She obtained

her Bachelor of Science degree in forensic science with a minor in chemistry at the
University of New Haven in 2011. She is a member of a number of professional
associations, including the American Board of Criminalistics, the American Academy of
Forensic Sciences, the International Association of Arson Investigators, and numerous
others. She has been employed as a forensic scientist at Analytical Forensic Associates

in Lilburn, Georgia since 2015. Her responsibilities include the chemical analysis of
ignitable liquids in fire debris, validating the authenticity of evidence, and testifying as to
the results of her analyses. She has experience performing many types of chemical and
instrumental analyses, including gas chromatography-mass spectrometry (GC-MS),
Fourier-transform infrared spectroscopy (FTIR), and flash point determinations. Prior to

working at Analytical Forensic Associates, Head worked at AK Analytical Services as a
Fire Debris Analyst.

3
Caitlyn Head testified that her lab received the sample of the fire debris from
Plaintiffs’ home from State Farm on March 27, 2020. The fire debris contained carpet
and wood debris. Head tested the sample of fire debris with a gas chromatogram mass

spectrometer (GC-MS) to determine the contents of the sample. Head explained that she
places a carbon strip in the sample and then heats the sample to determine if there are any
volatile materials. During this heating process, any volatile materials will rise to the top
of the can and adhere to the carbon strip. The carbon strip is then placed in a solvent
that removes any volatile materials from the strip. Next, the solvent is run through the

GC-MS to determine what volatile materials are present, if any. From this testing
process, Head determined that the debris sample contained gasoline.
During Head’s deposition, defense counsel inquired about potential gasoline
tracking at the fire scene. Counsel explained that when the issue of gasoline tracking
arose in the case, he asked the lab for their opinion on the issue, and Mason and Head

sent him an article discussing a gasoline tracking study.1 Based on this article, defense
counsel proffered a hypothetical:2
Mr. Lee has mentioned once or twice that he was filling a generator [with
gasoline] that was in the basement of the home. … If Mr. Lee had spilled
gasoline in the area where he was filing the generator … that he might have

1 The reliability of this article, entitled “The Evaluation of the Extent of
Transporting or ‘Tracking’ an Ignitable Liquid (gasoline) Throughout Fire Scenes During
the Investigative Process” published by the Journal of Forensic Sciences, is raised in
Plaintiffs’ Daubert motion and is discussed in more detail below.

2 Plaintiffs’ counsel objected to the hypothetical on the basis that it was improper
because it did not hypothesize all of the elements necessary and he has never seen the
authoritative work Head was supposedly relying on.
4
stepped through – could it be transported on his shoes by walking that
distance some ten feet to the stairs, and 11 to 12 steps up, and then a couple
or three feet … there’s different estimates as to how far the area of origin is,
but close to the top of the stairs?

Caitlyn Head Dep., Doc. No. 36-4 at 37:13-38:17.
Head testified that gasoline from the basement, as suggested in the hypothetical,
could not be transported on his shoes to the area of origin. She further testified that her
opinion would not change based on the type of shoes Mr. Lee wore, the weather,
ventilation, or whether it was tracked across concrete or carpet. Head offered the
following explanation regarding her conclusion:
DEFENSE COUNSEL: And what is your opinion? Well, could you track
things from -- that was a -- spilled raw gasoline
a distance of 12 steps up and 10 or 15 feet to the
steps?

CAITLYN HEAD: No, Sir.

DEFENSE COUNSEL: Why not?

CAITLYN HEAD: So based on this study, there were six pieces of
carpet that were laid out spanning 48 feet. And
it was gas -- fresh gasoline and evaporated
gasoline. There -- there was a mix of both
during the study -- were poured onto the carpet.
The first step, the investigator walked through
with both feet and then essentially tracked down
the carpet path. Those samples were then sent to
a lab, and they were negative starting at Step
Number 2, 3, 4, 5, and 6.

Id. at 41:7-22. She also testified that fumes emitted from the gas generator in the
basement would not be detectable at the area of origin:
5
DEFENSE COUNSEL: And in terms of fumes, and with regard to the
conversation that took place, I want you to
realize what they're -- they're suggesting is that a
generator, gas generator sitting in that same area
where I was talking to you earlier about, where
he was pouring gasoline, that that would be
running, that the fumes from that gas generator
would go ten feet and then up a flight of stairs
and then be detectable in the area of origin. Do
you have an opinion about whether gasoline
fumes could have been the source of the ignitable
liquid that you found in the sample?

CAITLYN HEAD: No, sir, they cannot.

* * *

DEFENSE COUNSEL: Why not?

CAITLYN HEAD: When gasoline fumes -- when those vapors emit
from the -- the generator, they are heavier than
air, so they're going to sit and condense right by
that generator. Now, if you've got some that
travel up the stairs, or let's say even travel, they
are not going to be detected by the lab. They
will be under the detection limit of the
instruments.

DEFENSE COUNSEL: Would they be similar to this transporting
tracking issue that was found in [the article] from
the testing back in 2004?

CAITLYN HEAD: Yes, sir.

Id. at 73:4-74:11.

On cross-examination, Head confirmed that her conclusion regarding gasoline
tracking was not included in her report because she only analyzed the debris to determine
if there was an ignitable liquid. She explained that she formed her opinion based on the
6
article, approximately two years after her report. She did not perform any testing with
respect to tracking nor does she have any formal education with respect to recreation of
fire scenes for the purposes of determining whether gasoline is tracked or not. She

further confirmed that her lab never made a formal determination that the gasoline was
not tracked to the scene:
PLAINTIFFS’ COUNSEL: And your lab never made a formal
determination that the gasoline could not
have been caused by splatter carried on
shoes or from fumes emanating from the
basement. Your lab never made a formal
determination of that; is that correct?

CAITLYN HEAD: Well, yes. I mean, gasoline is present.
Where it came from, is -- is not --that's
outside of my scope. I can just tell you
it's present or it's not, and it's – present.

* * *

PLAINTIFFS’ COUNSEL: Okay. So to say where it came from or
how it got there, you don't know?

CAITLYN HEAD: Correct.

Id. at 68:22-69:11 (cleaned up).

Head also testified that it would be best to take samples as soon as possible after a
fire occurs, but there have been positive samples that have been taken after an extended
period of time. She was not aware of when the sample was collected, only the date of
submission to the lab.

7
Laurel Mason
Laurel Mason is a forensic scientist and a fellow at the American Board of
Criminalistics, where she is a certified Fire Debris Specialist. She also has an A2LA

Laboratory Accreditation in forensic testing. She obtained her Bachelor of Science
degree in biology from Mercer University in 1981. She is a member of a number of
professional associations, including the American Board of Criminalistics (ABC), the
American Academy of Forensic Sciences (AAFS), the American Society of Testing and
Materials (ASTM), the National Fire Protection Association (NFPA), the International

Association of Arson Investigators (IAAI), the American Chemical Society (ACS), and
numerous others. She has been employed at Analytical Forensic Associates since 1992
and has served as a Senior Forensic Scientist, Laboratory Director, and President. She
manages the operations of the analytical laboratory, routinely conducts chemical
analyses, and evaluates the validity of the work of other scientists. She evaluates

chemical interactions and reactions of components specific to fire losses, and has
experience performing many types of chemical and instrumental analyses including GC-
MS, FTIR, and light microscopy. Prior to Analytical Forensic Associates, Mason
worked as a forensic chemist at Applied Technical Services, Inc. where she managed the
fire and arson laboratory. She has analyzed over one hundred thousand fire debris

samples since 1981 and has testified as an expert witness in 16 different states.
Laurel Mason testified that she conducts quality control in the laboratory, so every
piece of data or every sample that is analyzed in the laboratory is reviewed by her,

8
including Caitlyn Head’s testing of the debris sample at issue. Her testimony was
largely consistent with Caitlyn Head’s testimony. Mason testified that the GC-MS
testing method used to determine the presence of volatile substances has been used since

the 1990s and is considered the gold standard. Mason clarified that while her lab cannot
determine how much gasoline was present at the area of origin, they can determine how
much gasoline was present in the debris sample. In this instance, there were 3 to 4
microliters of gasoline in the debris sample. She explained that a drop is about 50
microliters, so it was a very small amount of gasoline, but significant enough to detect

through their testing methods. Mason also testified that her lab found about 25%
evaporated gasoline which indicates that the gasoline had been present at the scene for
less than one month. However, she could not determine whether the gasoline was
present at the scene before or after the fire.
With respect to the tracking issue, Mason testified that defense counsel requested

that she look into whether the gasoline present in the debris sample could have been
tracked to the scene from the generator in the basement. Consistent with Head’s
testimony, Mason testified that she relied on the journal article to form her opinion that
the gasoline found at the scene could not have been tracked from the basement. Head
stated that she is not aware of any other articles that discuss gasoline tracking.

Disclosure Issues
On June 10, 2022, Defendants disclosed that Laurel Mason would give expert
testimony “regarding chemical analysis of samples removed from the fire scene.”

9
Expert Disclosure of Mason, Doc. 35-2. Mason’s formal expert report did not mention
any opinions with respect to “tracking” gasoline through fire scenes or migration of
gasoline fumes, nor did Defendants disclose that she would be opining on this issue.

Plaintiffs were not aware that the tracking issue would be the subject of an expert opinion
by Mason until her deposition was taken by Defendants on November 1, 2022, to
preserve her testimony for trial. Mason relied on the aforementioned journal article in
forming her opinion with respect to gasoline tracking. The article was not provided to
Plaintiffs’ counsel until after the expert depositions, even though it was identified and

marked by Defendants during the deposition.
The Case Management Order (CMO) required the party with the burden of proof
to disclose all expert witnesses and provide summaries and reports as required by Rule
26(a)(2)(B) and (C) no later than November 1, 2022.3 Defendants did not disclose
Caitlyn Head as an expert witness prior to her deposition. Nor were any of the required

expert reports and disclosures provided to Plaintiffs’ counsel prior to Head’s deposition.
Immediately prior to Head’s deposition, defense counsel provided Plaintiffs’ counsel
with Head’s resume and summary of past testimony, but the journal article and other
exhibits generated in connection with the fire debris testing and analysis were not
provided to Plaintiffs’ counsel until after the deposition, even though Head relied on such

exhibits during her testimony.

3 Although the CMO only sets the disclosure deadline for “the party with the burden
of proof,” Defendants acknowledge in their response that their deadline to disclose
experts was November 1, 2022.
10
Two days after Head’s deposition, on November 3, 2022, Defendants filed a
supplemental expert designation that stated, “Caitlyn Head … will express the opinions
given at her deposition in this case on November 1, 2022 at the trial of this case” and

“Laurel Mason whose expert designation has already been provided to opposing counsel
along with the reports of Analytical Forensics Associates holds the same opinions as
those expressed during her deposition on November 1, 2022.” Third Suppl. Rule
26(a)(1) Initial Disclosure and Expert Designation, Doc. No. 35-3.
Defense counsel believes that he informally informed Plaintiffs’ counsel that Head

and Mason would be addressing the tracking issue, but offered that both experts would be
available for Plaintiffs to re-depose at Defendants’ expense.
ARGUMENTS OF THE PARTIES
Plaintiffs seek to have Caitlyn Head excluded as an expert and to have Laurel
Mason’s testimony limited to the opinions set forth in her report. Plaintiffs argue that

both experts’ testimony regarding gasoline tracking should be excluded not only due to
the procedural deficiencies, but also because their testimony is unreliable.
Specifically, Plaintiffs argue that Mason and Head are not qualified to give opinions on
gasoline tracking and there is too great of an analytical gap between the data and the
opinions proffered. Plaintiffs further argue that the article the experts used in their

analysis is not a sufficient basis for their opinions, given that the article is almost 20
years old and the study conducted was limited in its application.

11
Defendants argue that any procedural delay or error is harmless because
Plaintiffs suffered no prejudice and had all of the time allotted by the Case Management
Order to re-depose Head or Mason, at Defendants’ expense, and to retain their own

experts to rebut Head’s and Mason’s opinions. Defendants also contend that the
testimony regarding gasoline tracking should not be excluded because both experts are
qualified to testify on the issue of gasoline tracking and their analysis, including their
reliance on the article at issue, is reliable and based on scientific principles.
Lastly, Defendants argue that State Farm made its decision to preclude payment

in reliance on the opinions about gasoline tracking. Thus, even if the Court decides
that the testimony about gasoline tracking should be excluded because it was not
properly disclosed or is not scientifically reliable, the testimony is admissible to
demonstrate Defendants’ good faith and reliance on the consultants who assisted State
Farm in the investigation and analysis of Plaintiffs’ fire scene. Plaintiffs did not file a

reply.
Additional facts and arguments will be discussed in further detail below as
relevant to the parties’ specific arguments.
DISCUSSION
Disclosure of Expert Testimony

Federal Rule of Civil Procedure 26(a)(2), which governs the disclosure of expert
testimony, requires that “a party must disclose to the other parties the identity of any
witness it may use at trial to present evidence under Federal Rules of Evidence 702, 703,

12
or 705.” Fed. R. Civ. P. 26(a)(2)(A). The rule also requires expert witnesses who are
“retained or specifically employed to provide expert testimony in the case” to provide a
written report, prepared and signed by the witness, at the time of the disclosure. Fed. R.

Civ. P. 26(a)(2)(B). The written report must include:
(i) a complete statement of all opinions the witness will express and the
basis and reasons for them;

(ii) the facts of data considered by the witness in forming them;

(iii) any exhibits that will be used to summarize or support them;

(iv) the witness’s qualifications, including a list of all publications
authored in the previous 10 years;

(v) a list of all other cases in which, during the previous 4 years, the
witness testified as an expert at trial or by depositions; and

(vi) a statement of the compensation to be paid for the study and testimony
in the case.

Fed. R. Civ. P. 26(a)(2)(B)(i)-(vi). The rules require that these disclosures be made “at
the times and in the sequence that the court orders.” Fed. R. Civ. P. 26(a)(2)(D).
Absent a stipulation or court order, the disclosures must be made at least 90 days before
the trial date. Id.
If a party fails to disclose an expert and their opinions in accordance with the
requirements under Rule 26(a), “the undisclosed information or expert is excluded unless
the failure was substantially justified or harmless.” Vanderberg v. Petco Animal
Supplies Stores, Inc., 906 F.3d 698, 703 (8th Cir. 2018) (citing Fed. R. Civ. P. 37(c)(1)).
“A district court has wide discretion to fashion a remedy or sanction as appropriate for
13
the particular circumstances of the case when a party fails to provide information ... in
compliance with Rule 26(a).” Zick v. Paccar, Inc., 47 F.4th 672, 677 (8th Cir. 2022)
(citations omitted). The district court should consider the following when fashioning a

remedy; “the reason for noncompliance, the surprise and prejudice to the opposing party,
the extent to which allowing the information or testimony would disrupt the order and
efficiency of the trial, and the importance of the information or testimony.” Id.
(citation omitted). “[E]xclusion of evidence is a harsh penalty and should be used
sparingly[.]” Gruttemeyer v. Transit Auth., 31 F.4th 638, 645 (8th Cir. 2022) (internal

quotation marks omitted).
Here, pursuant to the Case Management Order, expert designations and reports
were due by November 1, 2022. On June 10, 2022, Defendants timely disclosed Laurel
Mason as an expert witness. Defendants’ expert designation stated that Mason was
“expected to testify regarding chemical analysis of samples removed from the fire scene.”

Doc. No. 35-2 at 1. The designation also included the analytical test report from the lab,
Mason’s Curriculum Vitae, a list of past cases in which she testified as an expert, and her
deposition fee. Id. at 1-17. Notably, the designation did not include Mason’s opinions
on gasoline tracking or any of the other exhibits, aside from the test report, that Mason
used in her deposition. Defendants did not designate Caitlyn Head as an expert prior to

her deposition on November 1, 2022, nor were any reports or exhibits provided to
Plaintiffs in advance of the deposition. Both Head and Mason were deposed by
Defendants on November 1, 2022, Plaintiffs’ counsel was present at the depositions.

14
After the depositions, on November 3, 2022, Defendants issued a “Third
Supplemental Rule 26(a)(1) Initial Disclosure and Expert Designation.” Doc. No. 35-3.
Here, Defendants designated Caitlyn Head as an expert witness, provided her Curriculum

Vitae, a list of prior testimony, and noted that Head “will express the opinions given at
her deposition in this case on November 1, 2022 at the trial of this case.” Id. The
designation also noted that Laurel Mason had previously been designated as an expert
witness and “holds the same opinions as those expressed during her deposition on
November 1, 2022.” Id. Notably, the designation also explicitly noted that “[t]o the

extent opposing counsel requires additional opportunity for cross-examination of experts,
the attorney for Defendant will, at Defendant[s’] costs, make the witnesses available for
further Zoom deposition at a mutually convenient time.” Id. This offer was also
extended to Plaintiffs on the record at the close of Mason’s deposition.
Pursuant to the case management order, expert depositions were to be completed

by December 15, 2022, and any rebuttal expert disclosures were due by January 16, 2023,
with rebuttal expert depositions to conclude by January 30, 2023. Plaintiffs did not take
Defendants up on their offer to re-depose Head and Mason, nor did they offer any
rebuttal witnesses on the tracking issue.
Justification

Defendants’ offer little to no justification for their failure to timely disclose
Caitlyn Head as an expert and their deficient disclosure of Mason’s expert opinions
regarding gasoline tracking. Defendants were aware of Mason and Head as potential

15
experts as early as March 2020, when their lab was hired to conduct testing on the fire
debris sample; Head and Mason’s names are both signed to the Analytical Test Report
dated March 30, 2020. Doc. No. 35-2, at 3. In 2022, prior to the expert designation

deadline, defense counsel specifically asked Mason her opinion on gasoline tracking.
This is evidenced by the fact that State Farm’s answers to Plaintiffs’ First Set of
Interrogatories, dated May 3, 2022, stated, “[t]he lab that tested debris from the area
confirmed the presence of a large amount of gasoline and not from splatter carried on
shoes or from fumes emanating from the basement.” Doc. No. 36-2, at No. 5.

Defendants contend that this interrogatory response put Plaintiffs on notice that
one of the lab experts would be testifying about gasoline tracking. However, the
interrogatory did not name either Mason or Head, nor could it plausibly be considered a
sufficient disclosure under Rule 26(a). See Vanderberg, 906 F.3d at 704 (“The expert
witness disclosure requirements would be rendered meaningless if a party could ignore

them and then claim that the nondisclosure was harmless because the other party should
have read between the lines.”).
Given that Defendants were aware of Head and Mason as potential expert
witnesses and that their testimony would involve gasoline tracking far in advance of the
expert disclosure deadlines, their failures to adhere to Rule 26(a)’s requirements are not

justified.

16
Harmlessness
Although Defendants’ procedural errors were not justified, ultimately, the errors
are harmless. Plaintiffs were on full notice of what Head and Mason would be testifying

to at trial; the bases for their opinions; and the exhibits relied upon as of November 3,
2023, just two days after the expert designation deadline. The deposition deadline was
not until December 15, 2023, and the rebuttal deposition deadline was not until January
30, 2023. Further, the close of discovery was March 1, 2023, and trial is set for August
14, 2023. Crucially, Defendants offered to pay for Plaintiffs to re-examine Head and

Mason at any mutually agreeable time. In sum, Plaintiffs had ample time and
opportunity to re-examine Head and Mason or provide rebuttal witnesses, yet declined to
do so.
The factors set forth in Zick also weigh against exclusion. Even though
Defendants have not provided a sufficient reason for their non-compliance, Plaintiffs will

not suffer prejudice, nor were they blindsided by these experts late in the discovery
process or on the eve of trial. Allowing the information or testimony will not disrupt the
order and efficiency of the trial, and the testimony offered by Head and Mason is very
important to this case because it goes to the potential causation of the fire and the lab
results that Defendants relied upon in denying Plaintiffs’ fire loss claim.

In light of these considerations, Head’s and Mason’s testimony will not be
excluded on a procedural basis. Whether their testimony regarding gasoline tracking
should be excluded as unreliable is discussed below.

17
Admissibility of Gasoline Tracking Testimony
The admission of expert testimony in federal court is governed by Federal Rule of
Evidence 702. Wagner v. Hesston Corp., 450 F.3d 756, 758 (8th Cir. 2006). Rule 702

provides:
A witness who is qualified as an expert by knowledge, skill, experience,
training, or education may testify in the form of an opinion or otherwise if:
(a) the expert’s scientific, technical, or other specialized knowledge will help
the trier of fact to understand the evidence or to determine a fact in issue;
(b) the testimony is based on sufficient facts or data;
(c) the testimony is the product of reliable principles and methods; and
(d) the expert has reliably applied the principles and methods to the facts of
the case.

Fed. R. Evid. 702. The rule was amended in 2000 in response to Daubert v. Merrell
Dow Pharms., Inc., 509 U.S. 579 (1993), which charged trial judges with a “gatekeeping”
role to exclude unhelpful and unreliable expert testimony.
Factors relevant to the relevancy and reliability determinations include: “(1)
whether the theory or technique can be or has been tested; (2) whether the theory or
technique has been subjected to peer review or publication; (3) whether the theory or
technique has a known or potential error rate and standards controlling the technique's
operation; and (4) whether the theory or technique is generally accepted in the scientific
community.” Russell v. Whirlpool Corp., 702 F.3d 450, 456 (8th Cir. 2012) (citations
omitted). Additional factors include “whether the expertise was developed for litigation
or naturally flowed from the expert’s research; whether the proposed expert ruled out

18
other alternative explanations; and whether the proposed expert sufficiently connected the
proposed testimony with the facts of the case.” Lauzon v. Senco Prods., Inc., 270 F.3d
681, 687 (8th Cir. 2001).

“[T]he Daubert reliability factors should only be relied upon to the extent that they
are relevant and the district court must customize its inquiry to fit the facts of each
particular case.” Shuck v. CNH Am., LLC, 498 F.3d 868, 874 (8th Cir. 2007) (citations
omitted); see also Kumho Tire Co. v. Carmichael, 526 U.S. 137, 141-42 (1999) (“the test
of reliability is ‘flexible,’ and Daubert’s list of specific factors neither necessarily nor

exclusively applies to all experts or in every case. Rather, the law grants a district court
the same broad latitude when it decides how to determine reliability as it enjoys in
respect to its ultimate reliability opinion.”); Unrein v. Timesavers, Inc., 394 F.3d 1008,
1011 (8th Cir. 2005) (stating that the “evidentiary inquiry is meant to be flexible and fact
specific, and a court should use, adapt, or reject Daubert factors as the particular case

demands”). The question is whether the expert’s opinion is sufficiently grounded to be
helpful to the jury. Unrein, 394 F.3d at 1012.
Although the proponent of the expert testimony must prove its admissibility by a
preponderance of the evidence, Daubert, 509 U.S. at 592 n.10, Rule 702 “is one of
admissibility rather than exclusion.” Shuck, 498 F.3d at 874 (citations omitted). “The

inquiry envisioned by Rule 702 is a flexible one,” designed to exclude “vague theorizing
based on general principles” or “unsupported speculation,” but not requiring an opinion
to be “a scientific absolute in order to be admissible.” Adams v. Toyota Motor Corp.,

19
867 F.3d 903, 914-16 (8th Cir. 2017) (citations omitted), as corrected (Aug. 14, 2017).
“Vigorous cross-examination, presentation of contrary evidence, and careful instruction
on the burden of proof are the traditional and appropriate means of attacking shaky but

admissible evidence.” Olson v. Ford Motor Co., 481 F.3d 619, 626 (8th Cir. 2007).
And any “doubts regarding whether an expert’s testimony will be useful should generally
be resolved in favor of admissibility.” Clark v. Heidrick, 150 F.3d 912, 915 (8th Cir.
1998).
Plaintiffs argue that Head’s and Mason’s opinions regarding gasoline tracking are

unreliable because they are not qualified to opine on gasoline tracking; there is too great
an analytical gap between the data and opinion proffered; and their testimony is not the
product of reliable principles or methods.
Qualifications of Mason and Head
Both Head and Mason are certified forensic chemists specializing in fire debris

analysis. Head is a member of multiple professional associations and has over ten years
of experience in fire debris analysis. Mason has been working as a forensic chemist
since 1981, specializing in fire and arson analysis. She is not only a member of
numerous professional associations but is a fellow at the American Board of
Criminalistics where she is certified as a fire debris specialist. She testified that she has

analyzed over one hundred thousand fire debris samples. Both experts are undoubtedly
qualified to testify about the chemical properties of fire debris samples.

20
Plaintiffs argue that Head and Mason are not qualified to specifically testify about
gasoline tracking because neither expert is a certified fire investigator, neither expert has
personally conducted gasoline tracking experiments or studies, and Defendants did not

develop any evidence of their special expertise in the area of gasoline tracking.
However, any gaps in an expert witness’s experience or knowledge generally go to the
weight of the witness’s testimony, not its admissibility. Robinson v. GEICO Gen. Ins.
Co., 447 F.3d 1096, 1100-01 (8th Cir. 2006); Garnac Grain Co., Inc. v. Blackley, 932
F.2d 1563, 1567 (8th Cir. 1991) (finding the trial court erred in excluding the testimony

of a witness who taught auditing courses for almost 40 years at the University of Kansas,
worked only as a staff assistant at an auditing firm for four years in the 1940's, had no
experience in auditing operations of the sort at issue, and whose license as a CPA expired
in 1941, explaining that “[t]he weaknesses in his opinion and expertise go to the weight
to be given his testimony, not its admissibility.”); Fed. Crop Ins. Corp. v. Hester, 765

F.2d 723, 728 (8th Cir. 1985) (“The relative skill or knowledge of an expert goes to the
weight of that witness's testimony, not its admissibility.”)
“Rule 702 only requires that an expert possess ‘knowledge, skill, experience,
training, or education’ sufficient to ‘assist’ the trier of fact, which is ‘satisfied where
expert testimony advances the trier of fact’s understanding to any degree.’” Robinson,

447 F.3d. at 1100 (quoting 29 Charles Alan Wright & Victor James Gold, Federal
Practice and Procedure: Evidence § 6265 (1997)). While Rule 702 requires that “the
area of the witness’s competence match the subject matter of the witness’s testimony,”

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the expert does not necessarily need to be a leading authority or specialist within the field
in question in order for their testimony to be admissible. See id. (finding that a
neurologist’s testimony about an orthopedic injury was properly admitted, explaining that

most courts have found that a physician with general knowledge may testify regarding
medical issues that a specialist might treat in a clinical setting.)
Head and Mason, through their education and experience as forensic chemists and
fire debris specialists, are qualified to explain the gasoline tracking study to the jury, and
compare the facts and data of this case to the findings of the study. The gasoline

tracking study at issue was conducted by forensic chemists in the same field as Head and
Mason, and the chemical lab analysis conducted in the study is identical to the analysis
conducted on the fire debris sample by Head and Mason. Any gaps in skill or
experience of the experts goes to the weight of their testimony, not the admissibility, and
can be highlighted by Plaintiffs through cross-examination.

Reliability of Experts’ Opinions
Next, Plaintiffs argue that the proffered expert testimony should be excluded
because it is too speculative, and there is too great of an analytical gap between the data
and Head’s and Mason’s opinions. “A district court may exclude expert testimony if it
finds that there is simply too great an analytical gap between the data and the opinion

proffered, . . . [or] if it is so fundamentally unsupported by its factual basis that it can
offer no assistance to the jury.” In re Bair Hugger Forced Air Warming Devices Prod.
Liab. Litig., 9 F.4th 768, 778 (8th Cir. 2021) (internal citations omitted). In other words,

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proffered expert testimony can be excluded if it is speculative or unsupported by
sufficient facts. Barrett v. Rhodia, Inc., 606 F.3d 975, 981 (8th Cir. 2010).
Plaintiffs argue that numerous factors were missing from Head’s and Mason’s

analyses when they concluded that the gasoline found in the fire debris sample could not
have been tracked from the basement. Specifically, both experts admitted that they did
not do any specific gasoline tracking test or experiments; they did not try to recreate or
duplicate what may or may not have happened in the Plaintiffs’ home; they did not know
how much gasoline may have been used to start the fire; they did not know if the gasoline

got into the sample intentionally or accidentally; they did not know how long the gasoline
had been present at the fire scene; and their lab never made a formal determination in
their report as to whether the gasoline could have been tracked from the basement.
However, apart from opining regarding tracking, the experts do not attempt to opine on
these issues; the testimony at issue is whether the gasoline found in the debris sample

could have been tracked to the fire scene from the basement.
As to this specific testimony, the Court finds that the experts’ opinions are
supported by sufficient facts and data, and their analytical method of comparing the data
in this case to a reliable scientific study is a valid scientific method. See Kuhn v. Wyeth,
686 F.3d 618, 626-632 (8th Cir. 2012) (explaining that the expert’s testimony was

admissible because the scientific studies on which he relied were sufficient to support his
opinion and explaining that the studies’ limitations “may be presented to the jury, and

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[the expert’s] reliance on the studies may be tested through traditional means of cross
examination and presentation of contrary evidence.”)
Here, both experts were asked a hypothetical scenario, based on their knowledge

and experience, as to whether the gasoline found in the fire debris sample could have
been tracked from the basement. Both experts concluded that it could not be tracked
from that distance, and based their analyses on a scholarly, peer-reviewed study that
measured how far gasoline can be tracked under various scenarios. They explained, in
detail, how the study found that gasoline can only be tracked a very short distance and

given the distance of the basement to the fire scene, they concluded that the gasoline
found at the fire scene could not have been tracked there from the basement. As such,
the Court finds that the challenged opinions are sufficiently supported and are not merely
connected to the existing data only by the ipse dixit of the experts. See Gen. Elec. Co. v.
Joiner, 522 U.S. 136, 147 (1997). The deficiencies described by Plaintiffs go to the

weight of the opinion, not the admissibility and may be explored on cross-examination.
See Arkwright Mut. Ins. Co. v. Gwinner Oil, Inc., 125 F.3d 1176, 1183 (8th Cir. 1997)
(“[T]he factual basis of an expert opinion goes to the credibility of the testimony, not the
admissibility, and it is up to the opposing party to examine the factual basis for the
opinion in cross-examination.”)

Reliability of Gasoline-Tracking Study
Lastly, Plaintiffs argue that the opinions regarding gasoline tracking should be
excluded because the study the experts relied on is not reliable. Plaintiffs argue that the

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“almost twenty-year-old ‘Technical Note’” should not have been relied upon because it
applied only to contamination using three types of footwear on only two types of floor
surfaces in unknown weather and temperature conditions in an outside area; it did not

address repeated ingress and egress by occupants, relatives, adjusters, and other persons
that go through a home at an unsecured fire scene for two weeks after the fire; and the
results of the study consistently showed that trace amounts of gasoline were identified by
canine detection up to eight steps away, the most steps in the study. See Doc. No. 35 at
2-4.

The study relied on by the experts, “The Evaluation of the Extent of Transporting
or ‘Tracking’ an Identifiable Ignitable Liquid (Gasoline) Throughout Fire Scenes During
the Investigative Process,” was published in the Journal of Forensic Sciences in July
2004. The study was conducted by experts in the field, peer-reviewed, and utilized the
standards and guidelines of the National Fire Protection Association (NFPA) and the

American Society for Testing and Materials (ASTM International). More specifically,
the study tested carpet samples after individuals in three different types of shoes, fire
boots, work boots, and tennis shoes, stepped in large quantities of spilled gasoline and
then walked across both concrete and carpet. The study found that gasoline could not be
detected via laboratory analysis more than one step from the pour/spill location. The

study ultimately concluded that “boots or shoes of individuals at a fire scene do not
transport sufficient contaminants (“tracking”) through the fire scene to produce a positive
laboratory result for the presence of gasoline in a fire scene that was not present at the

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time of the fire.” Doc. No. 35-1 at 1. Given that there was a positive laboratory result
for the presence of gasoline at the Plaintiffs’ fire scene, the experts’ opinion that the
gasoline could not have been tracked there from the basement, based on this study, is

sufficiently reliable under Daubert and does not warrant exclusion. The fact that the
study was conducted 19 years ago, and the fact that neither the experts nor Defendants
could point to any other studies conducted on this highly discrete issue, does not render
the study unreliable, nor is the experts’ reliance on it unreasonable.
Most scientific studies have certain limitations and cannot account for every single

possibility or extraneous factor. For example, “the repeated ingress and egress by
occupants, relatives, adjusters, and other persons that go through a home at an unsecured
fire scene for two weeks after the fire” is a highly specific factual scenario exclusive to
this case. Plaintiffs can address the limitations of the study, including this example,
during cross-examination.

Upon review of the study and the experts’ deposition testimony with respect to the
study, the Court finds that both the study itself and the experts’ reliance thereon are
sufficiently reliable under Daubert. Rule 702 “is one of admissibility rather than
exclusion.” Shuck, 498 F.3d at 874. The purpose of Daubert is to provide a district
court with “the discretion necessary to close the courtroom door to ‘junk science’ and

admit reliable expert testimony that will aid the trier of fact.” Robinson, 447 F.3d at
1100 (citing Amorgianos v. Nat’l R.R. Passenger Corp., 303 F.3d 256, 267 (2d Cir.
2002)). Here, the Court finds that the experts are qualified, the science is reliable, and

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the opinions are sufficiently grounded to be helpful to the jury. See Unrein, 394 F.3d at
1012. As such, the experts’ testimony with respect to gasoline tracking is admissible.
CONCLUSION
Accordingly,
IT IS HEREBY ORDERED that Plaintiffs’ motion to exclude expert testimony
is DENIED. (Doc. No. 34).

UNITED STATES DISTRICT JUDGE
Dated this 26th day of June 2023.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10238888. Public record. Not legal advice.