Free Memorandum in Opposition to Motion - District Court of Connecticut - Connecticut

Case 3:03-cv-01015-DJS

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UNITED STATES DISTRICT COURT DISTRICT OF CONNCTICUT

GLENS FALLS INSURCE COMPANY:
a/s/o HAROLD and LAURN HEINZ Plaintiff
v.

CIVIL ACTION NO. 303 CV 1015 (DJS)

COMMAND FORCE SECURTY
SYSTEMS, INC.

SEPTEMBER 21, 2004

Defendant

PLAINTIFF'S OPPOSITION TO DEFENDANT'S MOTION TO PRECLUDE EXPERT TESTIMONY

The plaintiff, Glens Falls Insurance Company, submits this opposition to the
defendant's Motion to Preclude Expert Testimony. The Motion to Preclude must be
denied because it (1) asserts arguments that are addressed to the weight and credibility of

Mr. Klem's testimony, not its admissibility; (2) the testimony of Mr. Klem satisfies the

standards set forth by the US. Supreme Court in Daubert v. Merrill Dow Pharms., 509

US. 579, 113 S. Ct. 2786 (1993) and (3) and evidentiary hearing is required to resolve
the issue, if there is one, of whether the testimony of Mr. Klem satisfies the standards set

forth by the US. Supreme Court in Daubert v. Merrill Dow Pharms., 509 US. 579, 113
S. Ct. 2786 (1993)

Disclosure of Thomas Klem:
The disclosure of Thomas Klem as an expert provided that

It is expected that Mr. Klem will testify that the fire
originated in a lower level bedroom and was associated
with a lamp located on a night table. The lamp was

knocked over onto a bed by a cat and ignited combustible
materiaL.

It is expected that Mr. Klem will testify that the fire
detection system installed within the subject premises was

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inadequate. The installed system could not and did not provide the necessary early detection and notification to the

fire department that an adequately designed and installed system would have achieved. The defendant should have
been aware of the minimum effective design required for

the fire detection/alarm system given the design of the premises. The deficiencies in the fire detection system

should have been recognized and rectified by the
defendant.

It is expected that Mr. Klem will testify that the zones created by the deep ceiling beams and doorway lintels in
the subject premises provided significant barriers to the

spread of combustion products from the fire to the sole
existing lower-level smoke detector. These features of the home resulted in a significant delay in the activation of the

installed lower-level hallway detector. To meet the
requirements ofNFP A 72, at a minimum, a smoke detector should have been installed just outside the bedroom area in

the lower leveL. Additionally, sound fire protection
engineering judgment dictates that the unique construction
features of the premises and recent renovations to the

premises with this level of protection should have resulted in smoke detectors being installed within lower level
bedrooms as welL.

It is expected that Mr. Klem will testify that an detector installed within the bedroom of fire origin would have likely activated from a smoldering fire within minutes of
the lamp igniting the combustible materiaL. Even a detector

installed within the adjacent hallway (in absence of a
detector within the room of fire origin), would have

resulted in a detection time well in advance of the fire
reaching flashover in the bedroom. Prior to flashover, the fire would have been relatively contained within that room and still very manageable by the fire department.
At a minimum, a properly designed and installed fire alarm

system for the subject premises should have included a smoke detector located within the room of fire origin, a smoke detector located just outside the lower level bedrooms and a smoke detector at the opening to the
stairway. Had such detector installations been made in the subject premises, notification to the fire department would have been significantly reduced resulting in prompt suppression and a significant reduction of fire damage to the premises.

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It is expected that Mr. Klem will testify that had the fire detection system been properly designed, then it is more probable than not that the fire would have been detected, responded to, contained and suppressed within the room of
origin thereby resulting in a significant reduction of fire
damage to the premises. (Disclosure attached as Exhibit F
to defendant's memorandum in support of summary

judgment motion.)

Reports and Testimony of Thomas Klem

The defendant argues in its Motion for Summary Judgment and in its Motion to

Preclude Expert Testimony that the second report prepared by Thomas Klem of T. 1.
Klem and Associates is inadmissible. The defendant essentially attacks the credibility of

the plaintiff s expert, Thomas Klem. This attack is clearly insuffcient for the granting of
summary judgment or for precluding the testimony of the expert for two reasons: (1)

Credibility assessments are the province of the jury and not the court on a Motion for
Summary Judgment or Motion to Preclude; and (2) The defendant cites and relies on only

a small portion of Mr. Klem's deposition testimony and reports in support of its Motion

for Summary Judgment and Motion to Preclude. A review of all of the reports and
testimony, discussed above, reveals that both the Motion for Summary Judgment and
Motion to Preclude must be denied.

That Mr. Klem was retained by the plaintiff to first examine the cause and origin
of the fire and then asked to analyze the fire detection system installed by the defendant is

not a basis to preclude his testimony. Rather, this is an argument as to his credibility, not

admissibility of his testimony. Experts are routinely retained to analyze an issue and
provide their opinions on the issue.

Additionally, the defendant argues briefly that the second report prepared by Mr.

Klem is inadmissible pursuant to Daubert v. Merrill Dow Pharms., 509 US. 579, 113 S.

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Ct. 2786 (1993) and State v. Porter, 698 A.2d 238 (1997). This is an inappropriate

argument for summary judgment because whether an expert's proffered opinions are
admissible pursuant to Daubert v. Merrill Dow Pharms., 509 US. 579, 113 S. Ct. 2786
(1993) and State v. Porter, 698 A.2d 238 (1997)can only be decided after an evidentiary
hearing.

The opinions of Mr. Klem are contained in his reports (Exhibits G and H to
defendant's memorandum) and his disclosure as an expert (Exhibit F to defendant's
memorandum).

In the second report prepared by T.J. Klem and Associates, it is

specifically noted that T.J. Klem and Associates was asked to supplement its fire
investigative analysis regarding the fire at the Heinz house. This report specifically

states, "this additional analysis assesses the adequacy of the structure's installed fire
detection/alarm system (which included alarm monitoring) in providing early detection of

a fire, notification to the monitoring company, timely notification of the fire department
and the system's ability to achieve life safety of the occupants and to limit fire damage to

the home." Mr. Klem further states in his report that "considering the potential threat to
life safety within the home, sound fire protection engineering judgment dictates that this

home should have installed an equivalent level of fire protection throughout all sleeping

areas of the home. The lower level bedrooms did not contain smoke detectors, but they
should have. Further, due to the ceiling being within the area of fire origin, two detectors

would have provided the best design of the fire alarm system for this area (if properly
placed one detector might have been acceptable)."
memorandum).
(Exhibits H to defendant's

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Thus, the second report prepared by Mr. Klem, plaintiff s expert, does not
contradict the first report, as is argued by the defendant in its motions. Rather, the second

report was a more complete and thorough analysis directed specifically at the adequacy

of the fire detection system installed by the defendant. The first report was a cause and
origin investigation and the references to the fire detection system in the first report were

not the final word or a detailed analysis of that system. Thus, the defendant's argument

that summary judgment should be granted or Mr. Klem's testimony precluded because
the second report contradicts the first report is without merit.

The record establishes that Mr. Klem has excellent credentials.

Mr. Klem

testified that he was employed with the NFP A as a Chief Fire Investigator for 12 years

and that his duties included investigating major fire occurrences for the NFP A and
developing investigative reports regarding those fires. (Depo. of

Thomas Klem, 3/16/04,
Law in Support of

p. 8; attached as Exhibit I to the defendant's Memorandum of

Motion

for Summary Judgment). Mr. Klem has testified at trial at least 6 times and has been
deposed approximately 45 times. (Depo. of

Thomas Klem, 3/16/04, p. 9-10; attached as

Exhibit I to the defendant's Memorandum of Law in Support of Motion for Summary
Judgment). He has also testified before Congressional committees twice; once regarding

a major fire in a high rise buildings, and the other occasion regarding mobile home fire
safety standards being considered by Congress. (Depo. of

Thomas Klem, 3/16/04, p. 11;

attached as Exhibit I to the defendant's Memorandum of Law in Support of Motion for
Summary Judgment).

Mr. Klem developed an investigative protocol for electrical

investigations when he was with the United States Fire Administration and this protocol

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was adopted by the NFP A. (Depo. of

Thomas Klem, 3/16/04, p. 27; attached as Exhibit I
Law in Support of

to the defendant's Memorandum of

Motion for Summary Judgment).

Mr. Klem was retained by the plaintiff one or two days after the fire. (Depo. of
Thomas Klem, 3/16/04, p. 32; attached as Exhibit I to the defendant's Memorandum of

Law in Support of Motion for Summary Judgment). He was originally retained to
conduct a cause and origin investigation of the fire at the premises. (Depo. of Thomas
Klem, 3/16/04, p. 34; attached as Exhibit I to the defendant's Memorandum of Law in

Support of Motion for Summary Judgment). The initial report regarding the fire at the
premises was authored by an employee ofMr. Klem, and reviewed, edited, approved and

issued by Mr. Klem. (Depo. of Thomas Klem, 3/16/04, p. 62 and 67-69, attached as
Exhibit I to the defendant's Memorandum of Law in Support of Motion for Summary
Judgment). Mr. Klem was at the premises in October of2001, took photographs, and did
a complete walk-through of the premises. (Depo. of

Thomas Klem, 3/16/04, pp. 80; 88,

attached as Exhibit I to the defendant's Memorandum of Law in Support of Motion for
Summary Judgment).

Mr. Klem authored the second report. (Depo. of Thomas Klem, 3/16/04, p. 62;
attached as Exhibit I to the defendant's Memorandum of Law in Support of Motion for
Summary Judgment). The second report was done after the plaintiff requested (through
its attorney) a more in-depth evaluation of

the fire and the fire detection system installed

at the premises. (Depo. of Thomas Klem, 3/16/04, p. 64-5; attached as Exhibit I to the
defendant's Memorandum of Law in Support of

Motion for Summary Judgment). More

specifically, an adjuster, Jake Mollenkopf, affliated with the plaintiff was perplexed at
the severity of the loss at the premises despite the existence of a centrally monitored fire

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detection system. (Depo. of Thomas Klem, 3/16/04, p. 72; attached as Exhibit I to the

defendant's Memorandum of Law in Support of Motion for Summary Judgment).
Neither the adjuster not anyone else ever said or suggested to Mr. Klem that the plaintiff

wanted to pursue a third party action. (Depo. of Thomas Klem, 3/16/04, p. 77; attached
as Exhibit I to the defendant's Memorandum of Law in Support of Motion for Summary

Judgment). On the second day of his deposition Mr. Klem again addressed the issue of
why he prepared a second report:

. . . based on my additional review of the fire incident and
the additional review that subsequently happened of
applicable code standards, regulations of the State of

Connecticut and engineering practices to opine as to

whether or not the smoke detection system that was
installed within the premises was installed properly,

adequately, and whether or not - if it was not installed
properly, had it been installed as guided by appropriate

standards, whether or not it made a difference in the

outcome of the fire. (Depo. of Thomas Klem, 5/6/04, p.
of

165; attached as Exhibit J to the defendant's Memorandum Law in Support of Motion for Summary Judgment).

Mr. Klem testified that the purpose of smoke detector, pursuant to the NFP A, Life

Safety Code, and Fire Alarm Code is for life safety and property protection. (Depo. of
Thomas Klem, 3/16/04, p. 90-1; attached as Exhibit I to the defendant's Memorandum of

Law in Support of Motion for Summary Judgment). In response to the question of
whether the NFP A makes any reference to property protection, Mr. Klem testified as
follows:

I believe I cited in my second report that there are various sections of the code that refer to that. And certainly from a fire protection engineering standpoint, a user of the code understands that initially life safety objectives are achieved, but there's certain property implications that are either cited or interpreted by engineering judgment. And depending on
the complexity of the fire detection system arrangement,

certainly property protection is strongly implied. (Depo. of

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Thomas Klem, 3/16/04, p. 91; attached as Exhibit I to the defendant's Memorandum of Law in Support of Motion for
Summary Judgment).

In response to a question about the impact the renovations at the premises had on

his opinions in the second report, Mr. Klem testified that "Well the conclusions that I
make in the report, the analysis takes two prongs: One within the renovations and one
independent of

the renovations. And from an analysis standpoint, both are relevant topics

for discussion, but the conclusions are the same." (Depo. of Thomas Klem, 3/16/04, p.
105; attached as Exhibit I to the defendant's Memorandum of Law in Support of

Motion

for Summary Judgment).

When asked about the statement - "the building contained a fire detection alarm
system (with smoke detectors positioned about the home according to national standards

at the time of their installation) that was operable at the time of the incident. . " - in the

first report, Mr. Klem testified he agreed with that statement based on the level of
assessment and research done at the time the report was written and submitted. (Depo. of

Thomas Klem, 3/16/04, p. 117; attached as Exhibit I to the defendant's Memorandum of
Law in Support of

Motion for Summary Judgment).

Mr. Klem was asked about the Connecticut State Building Code and its
requirements. The Code provides that when alterations or additions requiring a permit

occur (such as the work done on the Heinz premises) or when one or more sleeping
rooms are added or created an existing dwelling, the entire building shall be provided
with smoke detectors as required in new buildings (smoke detector in every bedroom).

(Depo. of Thomas Klem, 3/16/04, p. 127; attached as Exhibit I to the defendant's
Memorandum of Law in Support of

Motion for Summary Judgment).

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Mr. Klem testified that he used various computer fire models but none of these
models were used in his final conclusions. (Depo. of Thomas Klem, 3/16/04, p. 128;

attached as Exhibit I to the defendant's Memorandum of Law in Support of Motion for
Summary Judgment).

The smoke detector closest to the room of fire origin was eleven feet from the
doorway to the room and another 12 feet to the location of fire origin. (Depo. of

Thomas

Klem, 5/6/04, p. 200; attached as Exhibit I to the defendant's Memorandum of Law in
Support of

Motion for Summary Judgment). The required response time under the NFP A

Section 72 for a central monitoring station to contact a fire department is 90 seconds.

(Depo. of Thomas Klem, 5/6/04, p. 218; attached as Exhibit J to the defendant's
Memorandum of Law in Support of Motion for Summary Judgment).
The central

monitoring station, chosen by the defendant, clearly violated this provision of the NFP A

because it took more than 90 seconds to contact the fire department. Thus, plaintiff has
established that the defendant violated the NFP A.

The Testimony of Thomas Klem Satisfies The Standard Set Forth In Daubert v. Merril Dow Pharms., 509 U.S. 579, 113 S. Ct. 2786 (1993)

The defendant argues that Mr. Klem's testimony is inadmissible pursuant to
Daubert v. Merrill Dow Pharms., 509 US. 579, 113 S. Ct. 2786 (1993). Under this
standard, the trial court is required to act as "gatekeeper" and scrutinize professional

expert testimony. As gatekeeper, "the judge's role is to keep unreliable and irrelevant
information from the jury because of its inability to assist in factual determinations, its
potential to create confusion, and its lack of

probative value." See e.g. Allison v. Meghan

Medical Corp, 184 F.3d 1300, 13 1 1-12 (11th Cir. 1999).

A trial judge is to make "a

preliminary assessment of whether the reasoning or methodology underlying the

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testimony is scientifically valid and whether that reaSOnIng or methodology can be
applied to the facts in issue." Daubert, 509 US. at 592-93, 113 S. Ct. at 2796; Porter,
241 Conn at 64, 698 A.2d at 744.

Defendant's argument that Mr. Klem's testimony must be precluded pursuant to

Daubert v. Merrill Dow Pharms., 509 US. 579, 113 S. Ct. 2786 (1993) must faiL. First,

this argument requires an evidentiary hearing and cannot be decided on a motion for
summary judgment. Second, that Mr. Klem has excellent credentials and experience in
fire analysis is indisputable. Third, the analysis and examination conducted by Mr. Klem
and his employees satisfy the standards set forth in Daubert. Indeed, the defendant's own

expert agrees with Mr. Klem's most significant opinions; that the design of the premises

impacted how quickly the fire detection system detected the fire, and a centrally
monitored detector in the room of fire origin would have detected the fire sooner.

For the foregoing reasons, the defendant's Motion to Preclude should be denied.
THE PLAITIFF,

GLENS FALLS INSURCE COMPANY a/s/o HAROLD and LAURN HEINZ

By /s/ Joseph E. Mascaro
Joseph E. Mascaro, Esq. - CT 12736 Morrison Mahoney LLP
One Constitution Plaza, ioth Floor

Hartford, CT 06103 (860) 616-4441 (860) 541-4878
j mascaro(£morrisonmahoney. com

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CERTIFICA TE OF SERVICE

I hereby certify that a copy of the foregoing was mailed to the following parties of record postage prepaid this 21 8t day of September, 2004, as follows:
Attorney Michael Mezzacappa Kaufman, Borgeest & Ryan, LLP 200 Summit Lake Drive Valhalla, NY 10595

/s/ Joseph E. Mascaro Joseph E. Mascaro

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Clerk's Offce United States District Court 450 Main Street Hartford, CT 06103