No Stain On a Court’s Daubert Analysis For a Fire Investigator To Rely On Circumstantial Evidence

Maria Elousu and Robert Brace, husband and wife, owned a $1.5 million cabin in Pistol Creek Ranch. The cabin is part of a development operated by Middlefork Ranch Inc. Brace stained the cabin’s 500 SF wrap-around deck with Penofin-brand oil in July 2017. The product carries a warning label about spontaneous combustion along with recommendations on application amounts. Brace used almost twice as much stain as recommended. The next morning, he noticed wet places where the stain had not dried completely. Brace was not at the cabin when a Middlefork employee stopped to refill the propane tank. Elousu warned the employee about the stain before he lit the pilot light on an outdoor refrigerator. The employee said the appliance had no wet stain near it. Elousu and her child went for a hike. When they returned, the cabin had burned to the ground. Elousu and Brace hired an independent fire investigator before suing Middlefork. The association hired its own experts. At trial, the district court judge agreed with a motion to exclude testimony from Elousu and Brace’s investigator. The Ninth Circuit reversed the decision on the ground the district court judge “exceeded his limited role as gatekeeper” to demand “concrete physical or testimonial evidence.” Keep reading for the full story.

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