UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE

Joseph and Barbara Pukt

v. Civil No. 14-cv-215-JD Opinion No.

Nexgrill Industries, Inc.

O R D E R

Joseph and Barbara Pukt brought suit against Nexgrill

Industries, Inc., alleging claims that arose from damage to

their property after a grill manufactured by Nexgrill caught

fire. Nexgrill moves to exclude the testimony of two of the

Pukts’ expert witnesses, and the Pukts object. The Pukts move

to exclude the testimony of two of Nexgrill’s expert witnesses,

and Nexgrill objects. Nexgrill also moves to strike an

affidavit submitted by the Pukts in support of their reply to

Nexgrill’s objection to their motion to exclude expert opinion.

The Pukts object to that motion.

Background

Joseph Pukt received the Charmglow grill that is the

subject of this case as a Father’s Day gift from his family in

2005. On July 1, 2012, the Pukts’ son, Jonathan Alger, cooked

on the grill. Soon after he was through cooking, the grill caught fire, and the fire spread to the deck and house, causing

extensive damage.

The Pukts’ Charmglow grill operated with a removable

propane gas cylinder located in a cabinet below the grill

burners that provided gas to the burners through a hose. The

grill had a removable grease tray that was located below the

cooking area and above the grill cabinet. The propane cylinder

used in the grill had a pressure relief valve (“PRV”) to vent

propane if pressure in the cylinder reached 375 pounds per

square inch, which would occur if the propane in the cylinder

reached 160 degrees. When propane is released through the PRV,

it makes a hissing sound.

The grill had a regulator that attached to the propane

cylinder and the hose. The regulator had an excess flow valve

(“EFV”) that was intended to restrict the flow of propane out of

the cylinder in the event of a hose failure. At a certain level

of gas flow, the plastic nut in the regulator is designed to

melt and activate a “back-check” that obstructs the flow of

propane from the cylinder.

The propane cylinder in the Pukts’ grill had last been

replaced two weeks before the fire. Joseph Pukt made sure at

that time that the hose was not touching the underside of the

grill or the grease tray.

2 The Consumer Product Safety Commission (“CPSC”) issued a

safety recall for the Pukts’ model of the Charmglow gas grill in

September of 2005. The recall states: “The hose connecting the

propane tank with the manifold may run up too close to the

firebox. The heat from the firebox could damage the hose. The

hose can leak gas. A fire or explosion may occur.”

The parties dispute the cause and origin of the Pukts’

grill fire. The experts all represented that they used the

method provided by the National Fire Protection Association,

NFPA 921, Guide for Fire and Explosion Investigations, but

arrived at different conclusions.

Standard of Review

To testify as an expert, a witness must be qualified to do

so “by knowledge, skill, experience, training, or education.”

Fed. R. Civ. P. 702. A qualified expert witness “may testify in

the form of an opinion or otherwise” if the witness’s

“scientific, technical, or other specialized knowledge will help

the trier of fact to understand the evidence or to determine a

fact in issue;” if “the testimony is based on sufficient facts

or data;” if “the testimony is the product of reliable

principles and methods;” and if “the expert has reliably applied

the principles and methods to the facts of the case.”

Once

the expert’s qualifications are established, the opinion is

3 shown to be relevant, and the bases for the opinion are both

sufficient and reliable, “the credibility and weight of the

expert’s opinion [are] for the factfinder.” United States v.

Jordan,

(1st Cir. 2016).

The party who offers the expert witness bears the burden of

showing that the opinion is admissible under Rule 702. United

States v. Tetioukhine,

(1st Cir. 2013). A

proponent of expert testimony is not required, however, to prove

that the expert’s opinion is correct. Ruiz-Troche v. Pepsi Cola

of P.R. Bottling Co.,

(1st Cir. 1998).

I. Motion to Strike Affidavit

Nexgrill moves to strike the affidavit of Kenneth Mayer,

who is an expert witness for the Pukts, that was submitted in

support of the Pukts’ reply to Nexgrill’s objection to the

Pukts’ motion to exclude Nexgrill’s experts’ opinions.1 Nexgrill

argues that part of paragraph three in the affidavit, which

pertains to the location of the grease tray in the grill after

the fire, provides an opinion that was not previously disclosed

by the Pukts and that is based on mere speculation.

Nexgrill moves to strike all of Mayer’s affidavit although 1

it cites only part of paragraph three as containing undisclosed expert opinion.

4 The challenged statements in Mayer’s affidavit were

submitted to show that the opinion of Nexgrill’s expert, Jason

Kramarczyk, should be excluded because he failed to consider

material evidence, including the grill artifacts. Kramarczyk

stated that in his opinion the location of the grease tray in

the grill was unknown and that it could have been open, which

might have caused the fire. Mayer provided his affidavit based

on his examination of the grill after the fire and photographs

of the grill taken by Nexgrill’s expert witness, Alan Dudden.

Paragraph three of the affidavit states (with the challenged

part underlined):

The sloped side of the bowl assembly, which was impacted by the fire extinguisher valve when it exploded upwards, is engaged with the full length of the grease tray. When the fire extinguisher exploded, the impact caused the sheet metal to distort. In turn, the grease tray and bowl assembly were locked together in the same condition that existed at the time of the explosion, as depicted in the photos. Thus the grease tray was fully inserted at the time of the explosion, as depicted in the photos.

In their objection, the Pukts do not dispute that Mayer did

not disclose his opinion about the location of the grease tray.

They argue instead that the physical evidence, the remains of

the grill, show that Kramarcyzk’s opinion is unsupported and

wrong. They also state without citation to authority or other

explanation that “the affidavit is undoubtedly fair response to

5 the [sic] Kramarczyk’s new disclosure of this grease tray

hypothesis at his deposition.”

To the extent Mayer’s opinions about the location of the

grease tray were not properly disclosed, they cannot be used in

support of the Pukts’ motion to exclude Kramarcyzk’s opinion.

Fed. R. Civ. P. 37(c)(1). The court does not decide at this

time whether the opinion in paragraph three would be admissible

at trial. Paragraph three will not be considered for purposes

of the Pukts’ motion to exclude Kramaczyk’s opinions.

Therefore, the motion to strike is granted to the extent that

the opinion in paragraph three is not considered for purposes of

the pending motion to exclude expert opinion.

II. Nexgrill’s Motion to Exclude Expert Testimony

Nexgrill moves to exclude the opinions of Kenneth Mayer and

David Wheeler, the Pukts’ expert witnesses, that the fire was

caused by the defect in the grill that required the recall. In

support, Nexgrill contends that the opinions of Mayer and

Wheeler about the cause of the grill fire are not reliable or

relevant. The Pukts contend that both experts’ opinions meet

the requirements of Rule 702.

6 A. Reliability

As provided in Rule 702, an expert’s opinion is reliable if

it is based on sufficient facts and data, if the expert used

reliable principles and methods, and if the expert reliably

applied the principles and methods. In contrast, an opinion is

not reliable if it is based on conjecture or speculation or if

it lacks a sufficient factual foundation. United States v.

Organon USA Inc.,

, at *3 (D. Mass. Aug. 17,

2015) (citing Damon v. Sun Co.,

(1st Cir.

1996)). Generally, disputes about the factual bases of an

expert’s opinion affect the weight and credibility of the

opinion but not its admissibility. See Milward v. Acuity

Specialty Prods. Gr., Inc.,

, 22 (1st Cir. 2011);

Payton v. Abbott Labs,

(1st Cir. 1985); South

Shore Hellenic Church, Inc. v. Artech Church Interiors, Inc.,

, at *19 (D. Mass. Feb. 19, 2016).

1. Kenneth Mayer

Kenneth Mayer works as a forensic engineer for Atlantic

Professional Services in Nutley, New Jersey. He has a

bachelor’s degree in computer science and master’s degrees in

electrical engineering and computer science. He is a licensed

professional engineer in New Jersey. Mayer is also a volunteer

firefighter and has a fire official’s license. He has

7 investigated the cause and origin of many fires and has

investigated twelve fires involving gas grills. Nexgrill does

not challenge Mayer’s qualifications to give expert opinion

testimony in this case.

For his investigation of the Pukts’ grill fire, Mayer

reviewed the NFPA 921 Guide for Fire and Explosion

Investigations, the 2008 NFPA Fire Protection Handbook, other

books on fires and ignition of fires, deposition transcripts,

Nashua Fire Rescue’s reports on the fire at the Pukts’ property,

CPSC documents, a contemporaneous video of the fire, and other

documents. Mayer also interviewed Joseph Pukt. He examined the

remains of the propane gas cylinder and the grill that were

involved in the fire.

After considering and ruling out the possibility that heat

from the grill ignited the deck railing to cause the fire, Mayer

concluded that the fire started inside the grill. He also

concluded that the location of the grill on the deck was

irrelevant to the extent of the fire. In Mayer’s opinion, the

fire started because of the defect in the grill that allowed the

gas hose to come into contact with the underside of the grill

and melt.

Once the hose melted, the propane escaped freely and

ignited. In Mayer’s opinion, the EFV on the cylinder failed,

8 because the EFV should have stopped the flow of propane. The

heat in the cabinet caused the propane cylinder to reach 160

degrees, which triggered the PRV to let off propane, which

burned. Therefore, Mayer concluded, the ignition of the fire

was due to the gas hose contacting the underside of the grill’s

firebox because of the latent defect identified in the recall.

Mayer also did a risk analysis of the grill. He found that

Nexgrill did not properly analyze the hazards or assess the

risks in the use of the grill and failed to minimize risks by

design. Mayer concluded that the Charmglow grill was not

designed to minimize the potential fire hazard caused by

foreseeable use of the grill. Mayer also found that Nexgrill

violated the CPSC requirements and other federal standards

regarding product defects and adequate safety warnings.

Mayer stated that he followed the methods and procedures

provided by NFPA 921. Based on his investigation, he found that

the Pukts’ grill was manufactured with a latent defect because

the regulator hose could come in contact with the hot grease

drawer or the grill’s firebox and that the latent defect caused

the fire in the Pukts’ grill. He also concluded that the

location of the grill on the deck and other propane cylinders on

the deck did not cause the fire.

9 Mayer prepared a supplemental report to respond to a report

prepared by Gas and Mechanical LLC about the causes and origins

of the Pukt’s fire. Mayer noted deficits and errors in the

opinions expressed in that report. He concluded that his

original opinions remained unchanged that the fire was caused by

the defect in the grill which caused the hose to melt and

rupture. He concluded that if the hose had not ruptured, the

fire would not have happened, and if the EFV on the regulator

had functioned there would only have been a small fire.

2. David Wheeler

David Wheeler works for New England Fire Cause & Origin

(“NEFCO”) located in Rochester, New Hampshire. He has fire

science and criminal justice degrees from New Hampshire

Vocational Technical College, which later became Lakes Region

Community College. Wheeler was a New Hampshire state trooper

and served as lead investigator on the arson task force. He has

worked for NEFCO for six years and has investigated a number of

grill fires. Nexgrill does not challenge Wheeler’s

qualification to give his expert opinion.

Wheeler inspected the fire scene at the Pukts’ house the

day after the fire and interviewed Joseph and Barbara Pukt. In

addition, Wheeler considered fire scene photographs, the Nashua

Fire Department report, the grill’s installation manual, the

10 deposition of Allen W. Dudden taken in another grill fire case,

the Gas and Mechanical Laboratories Inc. report, the deposition

of New Hampshire Fire Marshal Mark Rapaglia, the depositions of

the Pukts, the deposition of a neighbor, and a YouTube video of

the fire before the fire department arrived. Wheeler ruled out

as possible causes of the fire the electrical wiring in the

house and heat from the grill igniting the deck. He also

considered the grill recall materials.

Wheeler concluded that the fire started in the lower

cabinet of the grill and that it was an accidental event. In

his opinion, the location where the fire started “is consistent

with a failure of the gas hose that came into contact with a hot

object within the grill cabinet/assembly.” Wheeler relied on

Mayer’s report for details about the failure of the hose.

3. Nexgrill’s Challenges

Nexgrill contends that the opinions provided by Mayer and

Wheeler are not admissible because they did not test the Pukts’

burned grill, did not test an exemplar grill, and did not

examine the hose, which was destroyed in the fire. Based on

those perceived deficiencies, Nexgrill argues that their

opinions are based on speculation without factual foundation.

Nexgrill also contends that their opinions that the hose

contacted the underside of the grill are contrary to the

11 evidence that when Joseph Pukt installed the cylinder, two weeks

before the fire, the hose was not touching the underside of the

grill and that the orientation of the cylinder did not change.

Nexgrill challenges Mayer’s opinion about when the PRV was

triggered based on evidence of when various witnesses heard a

hissing noise from the grill.

Mayer and Wheeler followed the procedure of NFPA 921, which

Nexgrill does not dispute is the appropriate method for

investigating the fire.2 Nexgrill’s criticisms do not show that

the opinions of Mayer and Wheeler are unreliable. Instead,

Nexgrill’s raises factual issues that may be subjects for cross-

examination to test the credibility and weight of those

2 In its reply, Nexgrill contends that Mayer and Wheeler rely on speculation and possibility in violation of NFPA 921 and violated the NFPA standard which provides that a specific ignition source cannot be determined based on a “negative corpus,” that is, without evidence to support it. Ordinarily, the court does not consider arguments raised for the first time in a reply. LR 7.1(e)(1); SignalQuest, Inc. v. Chou,

, at *5 (D.N.H. Feb. 23, 2016). The Pukts, however, addressed those arguments in their surreply. Regardless of whether the 2011 or 2014 version of NFPA 921 would apply here, Mayer and Wheeler identified sufficient evidence to support their opinions to avoid the negative corpus issue. To the extent Nexgrill disputes the evidentiary basis for the opinions, that is an issue for cross- examination.

12 opinions. Therefore, the opinions of Mayer and Wheeler are not

excluded for lack of reliability.3

B. Relevance

An opinion must address facts that are at issue in the case

to be relevant. Bogosian v. Mercedes-Benz of N. Am., Inc.,

(1st Cir. 1997). The expert’s analysis and

conclusions must fit the facts in the case at hand so that the

opinion adequately addresses the issue to be decided.4 Samaan v.

St. Joseph Hosp.,

(1st Cir. 2012).

Nexgrill contends that Mayer’s opinions are not relevant

because Mayer considered a grill fire in another case, the Dunn

case, which involved a different model grill. In Mayer’s forty-

3 Nexgrill also argues for the first time in its reply that the opinions of Mayer and Wheeler should be excluded under Federal Rule of Evidence 403 because the opinions are more unfairly prejudicial than probative. Even if that theory had been properly raised, Nexgrill has not shown that the opinions of Mayer and Wheeler must be excluded on that basis.

4 As an example, the Supreme Court has explained that if the issue in the case is whether the night in question was dark, expert testimony about the phases of the moon would be relevant. Daubert v. Merrell Dow Pharms., Inc.,

(1993). On the other hand, if the issue in the case is what happened during that night, “evidence that the moon was full on a certain night will not assist the trier of fact in determining whether an individual was unusually likely to have behaved irrationally on that night.”

13 four page report, Mayer explains in detail all of the

information he considered in arriving at his opinion on the

cause of the fire. Mayer mentions the Dunn case in a footnote

and acknowledges that the fire involved a different model grill

made by Nexgrill. Mayer mentioned the Dunn case to consider the

similarity of the resulting fire damage and the failure of the

EFV in that case.

As such, Mayer’s brief consideration of the Dunn case does

not make his opinion on causation irrelevant.

II. Pukts’ Motion to Exclude Expert Testimony

The Pukts move to exclude the opinions of Nexgrill’s expert

witnesses, Allen Dudden and Jason Kramarczyk. The Pukts contend

that those opinions are not reliable because of a lack of

supporting facts, because the opinions are inconsistent, because

Dudden changed his opinion during his deposition, and because

the experts did not follow their stated methodology.

A. Allen Dudden

Allen Dudden works for Gas and Mechanical LLC in Missoula,

Montana. As stated in his resume provided with his report,

Dudden is a “Professional Engineer in the State of California in

the field of Safety (SF 1434)” and a “Certified Gas Engineer

(CGE 093).” He has worked at Gas and Mechanical LLC through his

14 career. Nexgrill hired Dudden to investigate grill fires in

2005 related to the recall issues, and then retained him to

serve as an expert in this case. The Pukts do not dispute that

he is qualified to provide expert opinions in this case.

In making his report, Dudden reviewed ANSI standards,

Canadian Standards Association test reports on Nexgrill grills,

Mayer’s and Wheeler’s reports, the Nashua Fire Department report

on the Pukts’ fire, “Fire Video from Face book,” depositions,

and other documents. Dudden considered several possible causes

for the fire: the propane cylinder valve, a grease fire in the

grill, improper replacement of the grill burners, a spider or

bug in the “venturi” of the burner, and the latent defect of the

hose contacting a hot surface of the grill. Dudden concluded

that he could not determine what caused the fire, but he also

stated that the gas hose was not touching the bottom of the

grill or the grease drawer.

B. Jason Kramarczyk

Jason Kramarczyk works for Unified Investigations &

Sciences, Inc., which is located in Nashua, New Hampshire. He

has a bachelor of science degree in mechanical engineering and a

master of science degree in fire protection engineering from

Worcester Polytechnic Institute. He previously worked for a

fire investigation company in California, an engineering company

15 in Colorado, and an investigations and engineering company in

Colorado. He is a licensed fire protection engineer. The Pukts

do not challenged Kramarczyk’s qualifications.

In his report, Kramarczyk says that his company, Unified,

undertook the assignment but does not explain what he did or

what may have been done by others. He states that the fire

scene was examined in August of 2012, research was done on the

history of the grill and recall information, an exemplar grill

was examined, and documents were reviewed, including

photographs, depositions, the Nashua Fire Department report, the

grill’s use and care guide, Dudden’s report, and other reports

and documents. Kramarczyk concluded that the cause of the fire

is undetermined.

C. The Pukts’ Challenges

The Pukts contend that the opinions of Dudden and

Kramarczyk that the cause of the fire cannot be determined do

not meet the reliability requirement of Rule 702. In support,

the Pukts argue that Dudden and Kramarczyk contradict each

other, that Dudden changed his opinion during his deposition,

and that both experts failed to consider CPSC documents and

Nexgrill’s discovery responses. Nexgrill responds that Dudden

and Kramarczyk followed the NFPA 921 procedure for fire

investigation.

16 Discrepancies and contradictions within and between the

experts’ opinions provide fertile grounds for cross-examination

on the weight and credibility of the opinions. See West v. Bell

Helicopter Textron, Inc.,

(D.N.H.

2013). Those issues, however, do not necessarily undermine the

expert’s methodology used to reach the opinion. See Campos v.

Safety-Kleen Sys., Inc.,

(D.P.R. 2015).

Therefore, the identified discrepancies and contradictions do

not require exclusion of the experts’ opinions.

The Pukts also argue that Dudden and Kramarczyk failed to

follow the methodology provided by NFPA 921 and required under

Rule 702 by failing or refusing to consider information and

documents about other incidents involving Nexgrill grills.

Specifically, the Pukts cite NFPA 921 § 4.3 and § 19.2 and

represent that those sections require an investigator to “gather

all possible data, create a hypothesis, and then test that

hypothesis.” They also assert that because Rule 702 requires an

expert opinion to be “based on sufficient facts or data” an

expert opinion must be excluded if the expert failed to consider

important information.

Dudden and Kramarczyk provided facts and data, which they

relied on, to support their opinions that the cause of the

Pukts’ fire is undetermined. Any weaknesses in the factual

17 bases of the experts’ opinions can be addressed through cross-

examination. See Milward, 639 F.3d at 22. Therefore, the

experts’ failure to consider information about other Nexgrill

fires does not require that the opinions be excluded due to a

lack of reliability.

Conclusion

For the foregoing reasons, the defendant’s motion to strike

(document no. 61) is granted only to the extent that the

challenged opinion in paragraph three of the affidavit is not

considered for purposes of the pending motion to exclude expert

opinion. The parties’ motions to exclude expert opinion

testimony (documents 42 and 48) are denied.

SO ORDERED.

__________________________ Joseph DiClerico, Jr. United States District Judge

April 22, 2016

cc: Raymond E. Mack, Esq. Joseph Gardner Mattson, Esq. Joseph L. McGlynn, Esq. Kevin Truland, Esq.

18