9th Circuit: Judge Overstepped Role by Throwing Out Fire Investigator’s Report

A federal appellate court on Wednesday revived a lawsuit against the owners of an Idaho wilderness resort, finding that a district court judge overstepped his bounds by excluding testimony from a fire investigator.

A panel of the Ninth Circuit Court of Appeals reversed a ruling by a US District Court judge in Idaho that made it impossible for the plaintiffs to prove that the negligence of a resort employee caused a fire that destroyed their $1.5 million cabin. The appellate panel said judges are supposed to act as gatekeepers, not fact finders.

“The court’s responsibility is to ensure that a sufficiently qualified expert applied reliable principles to form their hypothesis—not to gauge whether that hypothesis is ultimately correct,” the opinion says.

Maria Fernanda Elousu and Robert Louis Brace owned a vacation cabin in Pistol Creek Ranch, a remote resort on the banks of the Middle Fork of the Snake River within the Frank Church River of No Return Wilderness that guests access using a private airstrip. Middlefork Ranch Inc., a homeowners’ association, operates the development.

In July 2017, Brace used flammable Penofin-brand oil to stain the wrap-around deck outside the cabin. The product is sold with labels that warn consumers about potential “spontaneous combustion.” Brace used “copious” amounts of the oil and noticed sticky spots when he left the cabin the next morning.

That afternoon, an employee for Middlefork stopped by the cabin to check propane levels. He found that a tank that fueled an outdoor refrigerator on the Brace’s and Elosu’s deck was empty and refilled it. Before he lit the pilot light on the refrigerator, Elosu warned him about the oil stain, according to the couple’s lawsuit. The employee replied that it should be fine because there was no oil directly beneath the refrigerator.

Elosu went for a hike with neighbors. When she returned, she found that her cabin had burned to the ground.

Brace and Elosu, both from California, hired a California fire investigator to find out what caused the blaze. Michael Koster with Reliant Investigations visited the remains of the cabin 10 months after the fire. He wrote a 145-page report that concluded the fire started near the propane refrigerator when the pilot light ignited vapors from the Penofrin stain.

Middlefork’s insurance carrier, Philadelphia Insurance, hired its own fire investigator. The insurer’s expert testified that the fire most likely ignited on the southeast side of the deck, not the north side where the refrigerator was located. He said it is impossible to know the exact origin and relied on statements from witnesses who arrived shortly after spotting the flames.

Middlefork filed a motion to exclude Koster’s testimony, which it called “speculative and unsupported.” US District Court Judge David C. Nye agreed, saying that Koster’s opinion about the origin of the fire contradicted testimony from multiple witnesses and was based entirely on circumstantial evidence. Brace and Elosu appealed.

The 9th Circuit panel said Nye’s factual conclusions about the case “appear to be clearly erroneous.” While the judge’s findings say that Koster’s theory about the origin of the fire contradicts statements by witnesses, the report explains that a fire can move quickly after it ignites and burn heavily in an area far away from its point of origin, the opinion says.

The trial court judge also said no concrete evidence supported Koster’s opinion, but dismissed much of scientific analysis that formed the basis of his testimony, saying he found the charts and photographs attached to the report to be not “substantive.”

The panel concluded that the judge had exceeded his limited role as a gatekeeper that is permitted under Federal Rule of Evidence 702. He ignored important supporting documents within Koster’s report, weighed the evidence, discredited the report’s conclusions and demanded that Koster supply “concrete physical or testimonial evidence.”

“Quite simply, Koster is a fire investigator,” the panel concluded. “The fact that his testimony relied on circumstantial evidence and inferences is neither unusual nor unexpected, as fires routinely destroy all evidence of their origins.”

About the photo: A cabin in Pistol Creek Ranch is shown. Photo courtesy of Zillow.com.