Flynn v. Thermacell Repellents, Inc.

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF FLORIDA

ORLANDO DIVISION

JACQUELINE FLYNN,

Plaintiff,

v. Case No: 6:23-cv-1890-PGB-DCI

THERMACELL REPELLENTS,

INC. and LOWE’S HOME

CENTERS, LLC,

Defendants.

/

ORDER

This cause is before the Court on Defendants’ Revised Daubert Motion to

Exclude Anonymous Opinions in the Fire Rescue Report and Fire Chief

Wienckowski’s Alleged Opinions. (Doc. 95 (the “Motion”)). The Plaintiff

submitted a response in opposition. (Doc. 101). Upon consideration, the Motion is

denied because the alleged opinions do not constitute expert or lay witness opinion

testimony. For the sake of clarity, the Court also addresses in this Order lay witness

opinions that are admissible.

I. BACKGROUND

The Defendants seek to exclude findings, which they describe as expert

opinions, contained in the Orange County Fire Rescue Report (Doc. 95-1 (the

“Report”)), that the fire damaging the Plaintiff’s home was caused by the

Thermacell Patio Shield. (Doc. 95, pp. 1–4). Lieutenant Lizbeth Desio (“LT

Desio”) states in the Report that:

Per home owner [sic], fire started in the second[-]floor patio

from a ‘Thermocell Patio Shield Mosquito Repellent’ device.

She [Flynn] stated that she followed manufacturer directions

and placed the device on a patio table with no flammable

objects in its immediate vicinity, ignited the device and when

she returned to the device several minutes later, the device

had caught on fire.

(Id. at pp. 3–4 (quoting Doc. 95-1, p. 4)).

The Defendants also seek to exclude findings attributed to Fire Chief Garrett

Wienckowski (“Chief Wienckowski”) in Plaintiff’s Amended Answers to

Interrogatories that “the Thermacell Patio Shield product was the origin and cause

of the January 21, 2021, fire which damaged the Flynn’s home in Orlando, Florida.”

(Id. at p. 3 (quoting 95-2, pp. 2–3)).1 The Defendants claim that LT Desio and Chief

Wienckowski’s findings, or opinions, that the fire originated with the Patio Shield

must be excluded, because they are based on the incorrect impression that the

Plaintiff observed the Patio Shield to have caused the fire, and otherwise fail to

satisfy the Daubert standard for admissibility. (Id. at pp. 5–7).

The Plaintiff responds that the Report is admissible under Federal Rule of

Evidence 803(b) as a business record. (Doc. 101, p. 6). The Plaintiff also contends

that Chief Wienckowski’s opinions regarding the cause of the fire are admissible

based on his observations at the scene and information learned from witnesses.

(Id. at pp. 7–8). The Plaintiff argues that Chief Wienckowski should not be

1 As discussed below, Chief Wienckowski did not identify the cause of the fire.

prevented from testifying to the following opinions: (1) the damage is consistent

with the fire starting on the second-floor balcony; (2) no evidence suggests an

electrical fire; (3) the fire was accidental; and (4) information learned from

witnesses (that the Patio Shield caused the fire). (Id. at p. 8).

II. LEGAL STANDARDS

The Daubert standard is properly summarized in the Defendants’ Motion.

Defendants note that Federal Rule of Evidence 702 permits “[a] witness who is

qualified as an expert by knowledge, skill, experience, training, or education” to

testify in the form of an opinion. Rule 702 imposes an obligation on district courts

to act as gatekeepers “to ensure that speculative, unreliable expert testimony does

not reach the jury” under the mantle of reliability that accompanies “expert

testimony.” McCorvey v. Baxter Healthcare Corp., 298 F.3d 1253, 1256 (11th Cir.

2002); see Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579, 589 (1993). This

gatekeeping role applies “not only to testimony based on ‘scientific’ knowledge, but

also to testimony based on ‘technical’ and ‘otherwise specialized’ knowledge.”

Kumho Tire Co. v. Carmichael, 526 U.S. 137, 141, 147–48 (1999).

The party offering an expert opinion has the burden of establishing three

criteria by a preponderance of the evidence: qualification, reliability, and

helpfulness. See McClain v. Metabolife Int’l, Inc., 401 F.3d 1233, 1238 (11th Cir.

2005); Rink v. Cheminova, Inc., 400 F.3d 1286, 1292 (11th Cir. 2005). That said,

“neither Daubert nor its progeny preclude experience-based testimony.” Butler v.

First Acceptance Ins. Co., 652 F. Supp. 2d 1264, 1272 (N.D. Ga. Aug. 17, 2009)

(quoting Kumho Tire, 526 U.S. at 151). “When an expert relies primarily on

experience, the witness must explain how that experience leads to the conclusion

reached, why that experience is a sufficient basis for the opinion, and how that

experience is reliably applied to the facts.” Id. (quoting U.S. v. Frazier, 387 F.3d

1244, 1261 (11th Cir. 2004)).

While the parties focus on the standard announced in Daubert, they

overlook the fact that “[Federal] Rule [of Evidence] 701 does not prohibit lay

witnesses from testifying based on particularized knowledge gained from their own

personal experience. United States v. Hill, 643 F.3d 807, 841 (11th Cir. 2011). Thus,

a lay witness may offer opinions that are “rationally based on the witness’s

perception”; “helpful to clearly understanding the witness’s testimony or to

determining a fact in issue”; and “not based on scientific, technical, or other

specialized knowledge within the scope of Rule 702.” United States v. Jeri, 869

F.3d 1247, 1265 (11th Cir. 2017). For example, a law enforcement officer who read

and listened to thousands of wiretap conversations may testify about the meanings

of code words that he learned during the investigation. United States v. Jayyousi,

657 F.3d 1085, 1103–04 (11th Cir. 2011); see also Eberhart v. Novartis Pharms.

Corp., 867 F. Supp. 2d 1241, 1252–53 (N.D. Ga. Mar. 6, 2023) (permitting treating

physicians to testify as lay witnesses on matters that may resemble expert

testimony where such testimony is only “offered for the purpose of explaining the

physician’s decision-making process or the treatment provided”); Tampa Bay

Shipbuilding & Repair Co. v. Cedar Shipping Co., 320 F.3d 1213, 1218 (11th Cir.

2003) (allowing project manager to testify as a lay witness to whether bill was

reasonable for repairs to ship’s rudder).

III. DISCUSSION

The Defendants seek to exclude the information contained in the Report

appearing on page one under the heading “Cause of Ignition: Failure of equipment

or heat source,” and the Narrative on page four wherein LT Desio writes that the

homeowner identified the Thermacell Patio Shield as causing the fire. (Doc. 95, p.

2 (quoting Doc. 95-1, pp. 1, 4)). The Defendants incorrectly characterize the

statements attributing the fire to the Patio Shield as opinions and mislabel the

opinions as anonymous. The Defendants are correct in that LT Desio wrote in the

Report that the homeowner stated the “fire started in the second[-]floor patio from

a ‘Thermacell Patio Shield Mosquito Repellent’ device.” (Doc. 95-1, p. 4). And

Defendants are also right that LT Desio could not recall if this information was

obtained from the Plaintiff or Chief Wienckowski. (Doc. 95-8, 12:21–13:11; 18:12–

17). That said, Chief Wienckowski testified that he assumed LT Desio provided this

information from the homeowner. (Doc. 95-7, 6:13–24, 9:14–21). Chief

Wienckowski also testified that he has no opinion concerning the cause of the fire.

(Id. 7:14–20; 19:2–17).

Since Chief Wienckowski is not the source of the contested statement in the

Report, a simple process of elimination shows that LT Desio is. Accordingly, the

information is not anonymous. It is also not an opinion. Neither Chief

Wienckowski nor LT Desio opine that the fire on the second-story balcony was

caused by the Patio Shield. They merely repeat what LT Desio believes the

homeowner said about the cause of the fire.2 And the homeowner’s statement is

hearsay. The business records exception does not change this conclusion since the

Plaintiff’s statement to LT Desio is hearsay within hearsay. See FED. R. EVID. 805.

The Plaintiff, however, will be available to testify about the sequence of events

culminating in the fire.3

To avoid confusion, the Court will address the admissible lay witness

opinions offered by LT Desio and Chief Wienckowski. LT Desio testified that her

fire engine was first on scene around 8:19 p.m. (Doc. 95-8, 6:1–17, 9:7–17). When

she arrived, fire was observed emitting from the rear balcony of the home located

on the second floor. (Id. 29:20–24). LT Desio further testified that, based upon her

observations at the scene, there is no indication that the fire began anywhere other

than the second-floor patio. (Id. 40:12–20). LT Desio’s opinion that the fire began

on the second-floor balcony is based on her personal observations as informed by

26 years in the fire department and is properly admitted under Rule 701. See FED.

R. EVID. 701. Chief Wienckowski also concluded from his personal observation that

the fire started on the second-floor balcony. (Doc. 95-7, 8:22–23, 26:13–25). The

2 LT Desio testified, “I can’t recall who exactly gave me the info but I wrote down what I was

told.” (Doc. 95-8, 12:21–13:11). An opinion, either expert or lay, requires more than merely

repeating what one is told by a third party.

3 The Plaintiff testified that around 7:15 p.m. on the night of the fire, she placed the Thermacell

Patio Shield on the table located on the second-story patio and turned it on. (Doc. 95-6, 29:16–

19, 36:8–17, 39:4–18, 42:12–20). Around 7:30 p.m. to 7:45 p.m., her family sat down to

dinner, and by 8:00 p.m., a family member saw flames from the upstairs patio. (Id. 48:19–23,

49:7–18).

Chief also concluded the fire was accidental and testified there is no information

to suggest this was an electrical fire. Ud. 27:23—-28:22). These lay witness opinions

by LT Desio and Chief Wienckowski are based on their observations as informed

by years of experience and are properly before the jury.

IV. CONCLUSION

For these reasons, the Defendants’ Revised Daubert Motion to Exclude

Anonymous Opinions in Fire Rescue Report and Fire Chief Wienckowski’s Alleged

Opinions (Doc. 95) is DENIED.4

DONE AND ORDERED in Orlando, Florida on July 22, 2025.

/

PAUL G.

UNITED STATES*DISTRICT JUDGE

Copies furnished to:

Counsel of Record

Unrepresented Parties

4 The Court has found that neither LT Desio nor Chief Wienckowski has offered opinions that

the Thermacell Patio Shield caused the fire, and so the Plaintiff may not represent such to the

jury in her opening statement.