                                                                                    ACCEPTED
                                                                                03-14-00131-CV
                                                                                        5903223
                                                                     THIRD COURT OF APPEALS
                                                                                AUSTIN, TEXAS
                                                                            7/1/2015 2:50:35 PM
                                                                              JEFFREY D. KYLE
                                                                                         CLERK


                           NO. 03-14-00131-CV
                                                                FILED IN
                      THIRD COURT OF APPEALS             3rd COURT OF APPEALS
                           AUSTIN, TEXAS                     AUSTIN, TEXAS
                                                         7/7/2015 9:06:00 AM
                    ZBRANEK CUSTOM HOMES, LTD.             JEFFREY D. KYLE
                                                                 Clerk
                                                   Appellant

                                   v.

                JOE ALLBAUGH AND DIANE ALLBAUGH
                                                   Appellees

           Appealed from the 419th Judicial District Court of
                        Travis County, Texas
__________________________________________________________________
              SUPPLEMENTAL BRIEF OF APPELLEES
             JOE ALLBAUGH AND DIANE ALLBAUGH
__________________________________________________________________


Suzanne C. Radcliff                     Gregory S. Hudson
Texas Bar No. 24014420                  State Bar No. 00790929
COZEN O’CONNOR                          COZEN O’CONNOR
1717 Main Street, Suite 3400            One Houston Center
Dallas, TX 75201                        1221 McKinney Street, Suite 2900
Telephone: (214) 462-3000               Houston, Texas 77010
Facsimile: (214) 462-3299               Telephone: (832) 214-3900
Email:      scradcliff@cozen.com        Facsimile: (832) 214-3905
                                        Email:      ghudson@cozen.com



                     ATTORNEYS FOR APPELLEES
                                          TABLE OF CONTENTS


Overview ................................................................................................................ 1
Gharda USA, Inc. v. Control Solutions, Inc. ......................................................... 2

The Allbaughs’ Experts Proved Causation Using Nationally Recognized
Investigation Protocols and Positive Evidence Regarding the “False
Chimney” ............................................................................................................... 4

         Cause and Origin Was Determined In Accordance with Nationally
         Accepted Investigation Protocols ................................................................ 4
                   All Experts Agree on the Area Where the Fire Began ...................... 7

                   The Allbaughs’ Experts Properly Identified the Potential
                   Causes of the Fire .............................................................................. 9
                             Human Causes of the Fire Were Appropriately
                             Eliminated ............................................................................. 12

                             Expert Testimony From an Electrical Engineer Ruled Out
                             An Electrical Cause for the Fire............................................ 13
                             Expert Testimony From a Qualified Mechanical Engineer
                             Eliminated a Gas Leak as a Potential Cause of the Fire ....... 16
                   Expert Testimony Demonstrated That a False Chimney Caused
                   the Fire ............................................................................................ 18
                             Expert Testimony Established That a False Chimney
                             Existed ................................................................................... 18

                             Two Separate Construction Defects Account for the
                             Observed Gaps ...................................................................... 20

                             Expert Testimony Established That the Fire Ignited the
                             Combustible OSB ................................................................. 24
Conclusion ........................................................................................................... 27


                                                              i
                                        TABLE OF AUTHORITIES

                                                                                                                   Page(s)

Federal Cases
Butcher v. Allstate Ins. Co.,
   No. 1:06cRR423, 2009 U.S. Dist. LEXIS 13284, 2009 WL 301822
   (S.D. Miss. Feb. 5, 2009) ...................................................................................... 4

Jackson v. Black & Decker (US), Inc.,
   2008 U.S. Dist. LEXIS 123918 (N.D.Tex. 2008) .............................................. 15

Russ v. Safeco,
  2013 U.S. Dist. Lexis 42333 (S.D.Miss. 2013) .................................................... 4

Russell v. Whirlpool Corp.,
  702 F.3d 450 (8th Cir. 2012) ................................................................................ 4

Schlesinger v. United States,
   898 F. Supp. 2d 489, 2012 U.S. Dist. LEXIS 15754, 2012 WL
   407098 (E.D.N.Y. 2012)....................................................................................... 4

State Cases
Ford Motor Co. v. Aguiniga,
  9 S.W.3d 252 (Tex. App.-- San Antonio 1999, pet. denied) .............................. 15
Gharda USA, Inc. and Gharda Chemicals, Ltd. v. Control Solutions,
  Inc.,
  Cause No. 12-0987, --S.W.3d—(Slip Op. May 8) ...........................1, 2, 3, 27, 28

Tata v. State,
   446 S.W.3d 456 (Tex.App.—Houston [1st Dist.] 2014, pet.
   refused) ................................................................................................................. 7

Whirlpool Corp. v. Camacho,
  298 S.W.3d 631 (Tex.2009)................................................................................ 26

Rules
Texas Rule of Appellate Procedure 9.4(e) ............................................................... 30
Texas Rule of Evidence 703 ...................................................................................... 3

                                                              ii
                   SUPPLEMENTAL BRIEF OF APPELLEES,
                        JOE AND DIANE ALLBAUGH

                                         Overview

       Appellant, Zbranek Custom Homes, filed a post-submission brief in an effort

to re-argue evidentiary issues which both the trial court and jury heard and

resolved against Appellant. Appellant attempts to use the Gharda1 case as a

vehicle, but the Gharda case announces no rule of law relevant to this case or the

evidence presented.

       In Gharda, a complex chemical fire case, the plaintiff’s experts

hypothesized that the cause of the fire was the ignition of chemical fumes within a

confined space. However, the experts could only speculate both that Gharda’s

conduct resulted in the presence of ignitable fumes and that such fumes were

present in sufficient volume to cause the explosion.

       In this case, the fire was caused by a “false chimney,” a gap in the area

around a firebox which allowed heated gasses to migrate around the firebox into

areas where combustible materials are located. “False chimneys” present a known

hazard in fireplace construction and are specifically prescribed by the National Fire

Protection Association, the fireplace instruction manual and the applicable

Residential Building Code.         The “false chimney” existed because Appellant,

1
  Gharda USA, Inc. and Gharda Chemicals, Ltd. v. Control Solutions, Inc., Cause No. 12-0987,
--S.W.3d—(Slip Op. May 8, 2015).


                                             1
Zbranek Custom Homes, installed the fireplace in violation of these standards, a

failure which Appellant admitted during examination. The Allbaughs presented

evidence eliminating other potential causes of the fire (i.e. human error, electrical

failure and gas leak) along with positive evidence showing both how Appellant’s

installation methods created the false chimney and scientific evidence regarding

ignition of combustible materials.            At trial, Appellant vigorously, but

unsuccessfully, cross-examined witnesses about these issues.

                   Gharda USA, Inc. v. Control Solutions, Inc.

      In Gharda, the plaintiff, Control Solutions, Inc., suffered a fire loss. Control

Solutions alleged that chemicals (chlorpyrifos) manufactured by Gharda contained

excessive amounts of EDC, a flammable substance. EDC is used in the production

of chlorpyrifos, but is removed before the product is shipped such that the shipped

product is 99% pure. Control Systems argued that “human error” allowed excess

EDC to be present in the chlorpyrifos such that an ignition could occur. Thus, to

prove its case, Control Systems had to prove that: (1) the chlorpyrifos was

contaminated with EDC; (2) EDC contamination caused an exothermic reaction

that released flammable gases; and (3) spontaneous combustion or static electricity

ignited the vapors and caused an explosion.

      Unfortunately for Control Systems, its experts could only testify that

contamination due to “human error” during the manufacturing process was



                                          2
“possible” and admitted there was neither an indication of the amount of EDC

allegedly present nor that the amount of EDC present was sufficient to cause the

exothermic reaction which allegedly led to an explosion. As a result, the Texas

Supreme Court rendered judgment that Control Systems take nothing, as there was

no evidence that the conduct of Gharda led to the explosion. The Court stated that:

          Each of these shortcomings on its own would be sufficient to support
          a conclusion that [Control System’s expert] lacked a reliable
          foundation to testify that Gharda Chemical manufactured drums of
          chlorpyrifos that were contaminated with EDC. Considered together,
          it is even more apparent that [expert] testimony suffers from analytical
          gaps and is “connected to existing data only by the ipse dixit of the
          expert.” This type of connection is unreliable, and is therefore not
          evidence.2

          The Texas Supreme Court noted that “no rule prohibits experts from using

other experts’ opinions to formulate new opinions based on their own expertise. In

fact, Texas Rule of Evidence 703 and our prior cases contemplate exactly such an

arrangement.”3 However, absent positive evidence of contamination due to the

conduct of Gharda, there was no evidence to support an essential element of

Control Systems’ negligence and manufacturing defect claims.4

          In essence, Gharda stands for the unremarkable proposition that an expert

cannot rely on unreliable data when expressing an opinion. As will be explained

below, the facts and evidence in the instant case are vastly different.

2
    Id., at *18.
3
    Id., at *20.
4
    Id., at *23.


                                             3
       The Allbaughs’ Experts Proved Causation Using Nationally Recognized
    Investigation Protocols and Positive Evidence Regarding the “False Chimney”

                Cause and Origin Was Determined In Accordance with
                    Nationally Accepted Investigation Protocols

        Determination of the cause and origin of a fire is a common practice done in

accordance with the standards set forth by the National Fire Protection Association

(NFPA), a professional group of investigators whose collective knowledge and

experience has been distilled and reduced to a usable guide.

        NFPA 921 defines the scientific method to be followed by origin and cause

investigators.5 NFPA 921 is a nationally recognized protocol for investigation, and

courts have specifically upheld its use in cause and origin investigations.6 The

Allbaughs’ cause and origin expert, Mr. Michael Chaney, described the

investigative process prescribed by NFPA 921 in the following manner:

        Q.     Explain to the jury what the scientific method is?

        A.     It is a systematic methodology for investigating whatever
               you’re investigating. You have to recognize that there’s a
               problem—in this case there’s a fire—and you want to figure out
5
  RR6, page 169, line 4 – 15.
6
   See, e.g. Russell v. Whirlpool Corp., 702 F.3d 450, 454 (8th Cir. 2012) (quoting NFPA 921 §
1.2.1 and stating that “The NFPA is a nonprofit organization dedicated to fire prevention, and
NFPA 921 is a document intended to 'establish guidelines and recommendations for the safe and
systematic investigation or analysis of fire and explosion incidents.'"). See also Russ v. Safeco,
2013 U.S. Dist. Lexis 42333, *70-72, (S.D.Miss. 2013); Schlesinger v. United States, 898 F.
Supp. 2d 489, 2012 U.S. Dist. LEXIS 15754, 2012 WL 407098, at *15 (E.D.N.Y. 2012); Butcher
v. Allstate Ins. Co., No. 1:06cRR423, 2009 U.S. Dist. LEXIS 13284, 2009 WL 301822, at *3
(S.D. Miss. Feb. 5, 2009). Moreover, courts often exclude expert testimony that fails to comport
with NFPA 921 standards when an expert explicitly references the guide in reaching his
conclusions. See, e.g., Russell, 702 F.3d at 455; Schlesinger, 2012 U.S. Dist. LEXIS 15754, 2012
WL 407098, at *15.


                                                4
              what the cause is, and then you want to go out to that place and
              you want to gather as much data as you can, the data about the
              fire event, the circumstances that brought an ignition source
              together, you know, with the fuel, and you want to think of all
              the possibilities in that area of origin. Could it be electrical,
              could it be plumbing, could it have been combustibles too close
              to something, could it have been a human factor involved in
              causing this fire?

              So you want to gather all the data about that, and then you
              synthesize that and you think about, well, if I had that, what
              would I—what would be the proof of that. So you go through a
              thought process. You gather all the data in, you massage all the
              data, and then you come up with these theories and try to
              eliminate it down to one probable cause.7

Stated differently, once the area of origin is determined, the investigator identifies

the possible causes of the fire within that area. The investigator then separately

examines each potential cause to determine whether that cause can be ruled in or

ruled out as the culprit. If more than one cause cannot be eliminated, the cause of

the fire is “undetermined.” Importantly, all the experts, independent,8 plaintiff9

and defense,10 agreed that NFPA 921 defined the accepted protocol for fire cause

and origin determinations.

       In this case, application of NFPA 921 investigative methodology showed the

following. First, the area in which the fire began was the interstitial, or void, space


7
   RR6, 171, line 20 – page 172, line 15.
8
   Fire Chief Mike Lacey testified that NFPA 921 is the guideline for investigations. RR3, page
81, line 4 – 20. Chief Lacey used NFPA 921 to investigate cause and origin of the fire at the
Allbaugh home. RR3, page 82, line 18 – 23.
9
   RR6, page 169, line 4- 15.
10
    RR10, page 127, line 12 – page 128, line 24.


                                              5
above the fire box. All investigators, including District Fire Chief Mike Lacey,

agreed on this area of origin.11 Second, given the area of origin, several potential

causes could explain the fire: (1) human error; (2) the presence of an electrical

outlet; (3) the presence of a gas pipe; and (4) the presence of a false chimney. 12 An

electrical engineer examined the outlet and wiring and concluded that no electrical

failure accounted for the fire. A mechanical engineer examined the gas pipe and

concluded that a gas leak did not cause the fire. Third, positive evidence showing

the “false chimney” did cause the fire was provided by the mechanical engineer, a

construction professional and the Allbaughs’ cause and origin expert. This is

precisely the investigation method and analysis contemplated by NFPA 921.

       Appellant does not challenge directly the applicability of NFPA 921 or its

authority as the standard for investigators. However, Appellant makes an implicit

challenge to NFPA 921, arguing that the Allbaughs should have recreated the

fireplace in question to test whether or not a false chimney could have allowed

sufficiently hot gases to ignite the improperly installed OSB. NFPA 921 does not

require such testing,13 a fact also confirmed by Appellant’s expert, Mr. Nichols.14


11
   RR3, page 125, line 22 – page 126, line 22 (Chief Lacey); RR6, page 171, line 1 – line 10
(Mr. Chaney); RR10, page 113, line 21 – page 114, line 17. (Mr. Nichols).
12
   As discussed infra, Appellant’s experts included a “false chimney” in the group of possible
causes of the fire due to the well-established risks associated with false chimneys and the
presence of gaps around the firebox which would allow heated gases to migrate into the area
where the fire began.
13
   RR6, page 173, line 12 – 16.
14
   RR10, page 127, line 12 – page 128, line 24.


                                              6
Were the court to accept Appellant’s challenge, the Court would in effect re-write

the national protocol for cause and origin investigations to require recreation

testing when the collective experts in the field have agreed that such testing is not

required and thereby potentially invalidate thousands of investigations which

otherwise complied with NFPA 921. NFPA 921 investigations are used in a

variety of contexts, including arson investigations. Thus, requiring re-creation

testing could, among other consequences, potentially invalidate the testimony used

by courts to convict arsonists of criminal activity.15

                  All Experts Agree on the Area Where the Fire Began

       Under NFPA 921, the first step in an investigation requires an investigator to

identify the area in which the fire began. Here, all experts agreed that the fire

began in the void space above the firebox.16 The investigating fire department

district chief, Mr. Mike Lacey, prepared a report which was introduced as Exhibit

6:17



15
    For instance, Fire Chief Mike Lacey testified that he followed NFPA 921 when investigating
potential arson claims. RR3, page 81, line 21 – page 82, line 10. For a case law example of
NFPA 921 being used to support an arson conviction, see Tata v. State, 446 S.W.3d 456, 465
(Tex.App.—Houston [1st Dist.] 2014, pet. refused).
16
   RR6, page 202, line 25 – page 203, line 22; page 203, line 9 – page 205, line 9. (Mr. Chaney);
RR10, page 113, line 21 – page 114, line 17 (Mr. Nichols).
17
    RR15, pages 18-82. Appellant did not challenge the training or expertise of Chief Lacy to
testify as an expert regarding fire investigations or his conclusions about the fire cause and
origin. RR3, page 78, line 4 – page 81, line 3. Among other training and experience, Mr. Lacey
is a certified fire investigator and has been performing fire origin investigations since 2002. He
also is a member of the International Association of Fire Marshalls and has received training
from that organization. Chief Lacey testified that NFPA 921 was the guideline for fire


                                                7
       Using my training and experience in reading fire patterns and burn
       indictors, I have concluded that this fire started in the combustible
       void space around the exterior attached fireplace. Based on this
       information, the interviews conducted, and not finding any other
       sources of ignition, I have also concluded that this fire is accidental in
       nature and caused by a fire in the fireplace igniting combustible
       materials located within the void space the fire box was recessed
       into.18

Chief Lacey supported this finding in testimony by showing the jury numerous

photos of the fire scene which documented the burn patterns present and how the

fire spread from the area around the outside fireplace, up into the attic of the

Allbaughs’ home and then into the interior of the home.19

       Chief Lacey also noted an important abnormality20 in the exterior fireplace

which he observed during his investigation; namely a quarter inch gap which ran

across the entire top of the fire box and also along its sides. 21 Chief Lacey also

observed the presence of combustible materials in the gap space. 22 Although Chief

Lacey did not render a conclusion about the cause and origin of the fire, as his job

was simply to rule out arson as a cause, Chief Lacey testified as follows:

       Q.     So tell us, after you did this—took all your photos and looked
              inside the firebox itself, did—what did you do next?



examinations and that he followed NFPA 921 in making his investigation. RR3, page 81, line 4
– page 82, line 20.
18
   RR15, page 42.
19
   RR3, page 89, line 13 – page 107, line 23; page 115, line 3 – 126, line 22.
20
   RR3, page 122, line 17 – 22.
21
   RR3, page 123, line 14 – page 124, line 22.
22
   RR3, page 120, line 8 – 21.


                                             8
         A.      At that point, I made some conclusions. I looked at the fire
                 patterns. I recall the witness statements that I heard about that
                 they had been burning the fire in the firebox since about 6:00
                 p.m. And around the incident, at approximately midnight, there
                 was a pretty long period of time the fire was occurring inside
                 that firebox.

                 The fact that – that we observed when I looked over the wall
                 into the crevice--- the – basically the void space, there was a
                 heavy consumption of wood material, the framing of the void
                 space behind the firebox. And so my conclusion that I made
                 was that the fire, had progressed out of that firebox into that
                 void space, which then matched the witness statements and the
                 engine crew’s response that the fire was inside that void space
                 behind the firebox and progressed up into the attic area and then
                 progressed into the house. And that matched all the fire
                 patterns that I had observed throughout the rest of the house.
         Q.      Did you conclude that the fire in the firebox escaped the firebox
                 in some way?

         A.      That was my conclusion, yes, ma’am.23

Chief Lacey also testified that the burning of oriented strand board (OSB) found in

the void space around the firebox would account for the colored burn patterns

observed in those areas.24

         In its post-trial brief, Appellant argues that the Allbaughs’ experts assumed

an area of origin of the fire. Simply, this assertion is not true.

      The Allbaughs’ Experts Properly Identified the Potential Causes of the Fire

         After determining the area of origin of a fire, NFPA 921 requires that the

potential causes of the fire be identified so that each can be separately examined.

23
     RR3, 125, line 22 - 126, line 22.
24
     RR3, 181, line 21 – 182, line 8.


                                             9
The Allbaughs’ cause and origin expert, Mr. Mike Chaney, described the process

and his conclusion as follows:

         Q.      All right. And did you come up with the potential ignition
                 sources within the area of origin?

         A.      Yes.

         Q.      Okay. Can you tell us what the potential ignition sources are?

         A.      Well, there’s a fireplace, so the first thing I’m considering is
                 human factors.

         Q.      Okay.

         A.      What did the humans do.

         Q.      All right. Are there other potential ignition sources?

         A.      Yes. In this area, there was an electrical circuit, and in the
                 general area, there’s a third thing, which was plumbing, which
                 is the gas. That’s really a fuel source. It’s not the ignition
                 source, but it’s related.

         Q.      Okay.

         A.      And then four would be combustibles. Are there combustibles
                 in this area where they should be, are there some where they
                 should not be.25

         The Allbaughs’ experts included placement of combustibles as a possible

cause based on the well-known risks associated with false chimneys. Specifically,

the fireplace manual warns against allowing combustible material within 8 inches



25
     RR6, page 177, line 8 – page 178, line 2.


                                                 10
of the firebox due to the risk of ignition.26 Additionally, the firebox itself presents

a label instructing installers to allow an 8 inch clearance for combustible

material.27 The installation instructions also contain express warnings regarding

the risks associated with a failure to seal all joints with a heat resistant mortar,

noting that a failure to seal the joints “will create” a false chimney.28 Another

section of the NFPA, section 211, also instructs that combustible material be at

least 8 inches from a firebox.29 Finally, the applicable building codes also require

at least 2 to 8 inches clearance between the firebox and combustible materials.30

These required clearances are the result of testing performed by the fireplace

manufacturer and by Underwriters Laboratory.31 There is no dispute in this case—

the fireplace installed by Appellant did not allow the required clearance by placing

combustible OSB within an inch of the firebox. Appellant admitted:

       Q.     All right. Did you comply—did Zbranek Custom Homes—
              y’all approved the OSB within the eight inches of this little red
              zone here that would be in violation of NFPA 211. Correct?

       A.     We approved it, yes.
       Q.     And it violates the NFPA 211, doesn’t it.

26
    Exhibit 15, RR15, page 264 – 312 (specifically, page 272 states “The Standard fireplace and
DM 54 chimney system is tested and listed for installation with “clearance to combustibles” as
follows: . . . all combustible sheathing materials must be held eight inches (8”) away from the
sides of the firebox opening and eight inches (8”) above the top of the firebox opening.”
27
   Exhibit 15, page 269.
28
   Exhibit 15, RR15, page 285. Emphasis added.
29
   RR7, page 19, line 19 – page 93, line 9.
30
   RR7, page 91, line 7 – line 20.
31
   RR5, page 166, line 17 – page 168, line 6.


                                              11
         A.      I guess.

         Q.    Well, you don’t know one way or another.                 Is that what
         you’re—

         A.      No. I think that there are different interpretations. And—and
                 put literally, the way you’ve asked the question, yes.
         Q.      So literally, you violated the NFPA 211. Correct?

         A.      Yes.
         Q.      Not only on the top of the firebox, but on sides, too. Is that
                 correct?

         A.      Yes.

         Q.      And you violated—the construction violated on the sides of the
                 firebox the International Residential Code, too, didn’t it?

         A.      Yes.
         Q.      And it violated the installation manuals, didn’t it?
         A.      Yes.32

With the potential causes of the fire and the area of origin identified, Mr. Chaney

then followed the protocols of NFPA 921 to examine each potential cause.

                Human Causes of the Fire Were Appropriately Eliminated

         As noted above, Chief Lacey eliminated the potential for an intentional fire

(i.e. arson) during his investigation. Mr. Chaney also eliminated human causes as

being the source of the fire based on interviews with the Allbaughs regarding how

and when the fireplace was used, when the gas log was turned off, the absence of



32
     RR7, page 93, line 3 – page 94, line 7.


                                               12
ignitable liquids (i.e. lighter fluids), use of a fire screen, and related data.33

Appellant did not challenge the elimination of human factors as a potential cause

of fire at trial and does not raise the issue on appeal.

                       Expert Testimony From an Electrical Engineer
                        Ruled Out An Electrical Cause for the Fire

         Mr. Chaney did not believe electrical factors played a role in the fire because

there was no evidence of anything being plugged in to the outlet and therefore no

electrical load would flow to the outlet.34 Mr. Chaney also noted the unlikely

timing for an electrical fire, as the electrical fire would have to start at the same

time the fireplace was first used, despite having been in place for 18 months

previously.35 As a new home, Mr. Chaney believed that an electrical fire would be

prevented by a ground fault interrupt, which would stop the flow of electricity to

the outlet before any fire could begin.36               Mr. Chaney also noted that a fire

originating at or around the electrical outlet would present a different burn pattern

than the pattern present at the Allbaughs’ home. Mr. Chaney showed the jury

photographs of the fire scene, demonstrating how the burn patterns did not emanate

from in or around the electrical outlet and describing what the burn patterns would

look like had the fire emanated from the electrical outlet.37 Finally, Mr. Chaney


33
     RR6, page 178, line 6 – page 180, line 25.
34
     RR6, page 181, line 4 – 9.
35
     RR6, page 181, line 10 – 13.
36
     RR6, page 181, line 19 – page 182, line 11.
37
     RR6, page 182, line 12 – page 188, line 23.


                                                   13
pointed out that a fire originating at the electrical wiring would damage the inside

of the electrical plate, damage not shown in the collected physical evidence.38

       Despite this conclusive evidence, Mr. Chaney also looked to the opinions of

Mr. Mark Goodson, a licensed professional engineer.39 Mr. Goodson excluded an

electrical cause of fire originating at the outlet above the exterior fireplace based

on several factors: (1) the outlet in question was protected by a ground fault

interrupt, which would stop the flow of electricity to the outlet before there was

sufficient power to start a fire;40 (2) there was no evidence of electrical shorting;41

(3) witness interviews indicated that nothing was plugged into the outlet, which

would render any current insufficient to start a fire;42 and (4) there was no evidence

of any electrical arcing.43

       Appellant and third-party defendant unsuccessfully attempted to cross-

examine Mr. Goodson, arguing that it was theoretically possible for accidental



38
   RR6, page 189, line 3 – 20.
39
    Appellant did not challenge Mr. Goodson’s qualifications as an expert on electrical issues.
However, the Court can take note of his extensive qualifications in the field of electrical
engineering. Mr. Goodson has a bachelor of science from Texas A&M and is a licensed
engineer in 13 states. In the 29 years he has been licensed, Mr. Goodson has investigated over
3,000 electrical fires. He has worked for the State Fire Marshall’s Office and as part of the
National Response Team for the Bureau of Alcohol, Tobacco and Firearms. Mr. Goodson is the
author of 35 papers on fire and fire investigation. Important to this case, he also possesses
significant experience in dealing with ground fault interrupters. See, RR3, page 194, line 7 –
197, line 20.
40
   RR3, page 201, line 11 – page 204, line 8.
41
   RR3, page 204, line 15 – page 205, line 11.
42
   RR3, page 206, line 9 – page 207, line 9.
43
   RR3, page 208, line 17 – page 209, line 21.


                                              14
resistance to be on the electrical line.44 Such resistance could come in the form of

an insect nest being built in balance over the electrical lines or a Christmas wreath

with prongs sticking into the outlet. Appellant never attempted to argue or show

that either scenario was sufficiently probable to require analysis, and never

attempted to show that either scenario, if true, would be even remotely plausible

given the absence of arcing, scoring or other indicia of a fire originating at or near

the outlet.45 Mr. Goodson reaffirmed his opinion that such factors did not change

his opinion as to whether or not there was an electrical cause for the fire.46

       Simply, Appellant attempted to convince the jury that Mr. Goodson’s

opinion was flawed based on two hypothetical and highly unlikely occurrences for

which there was no positive evidence and all secondary evidence was inconsistent.

Unsurprisingly, the jury was not persuaded by this line of questioning. Similarly,

in its brief, Appellant argues that Mr. Goodson failed to rule out an electrical cause

of fire. However, this is not the legal standard and mischaracterizes the evidence.

44
   RR4, page 62, line 23 – page 63, line 4.
45
   Although an expert needs to exclude potential causes of an event, the expert does not need to
exclude every single hypothetically possible cause of an event; only those potential causes which
have a reasonable likelihood of occurring. See, Ford Motor Co. v. Aguiniga, 9 S.W.3d 252, 264
(Tex. App.-- San Antonio 1999, pet. denied). In addressing the opponent's argument that the trial
court erred in admitting expert testimony because the experts failed to rule out other plausible
causes of the engine failure, the court shifted the burden back to the manufacturer stating, “Ford
did not develop an argument... that another system failure [other than the fuel pump relay]
caused the engine to stall or the brakes and steering to fail.” Id. Thus, the court noted that before
an expert will be required to rule out other causes, the opponent must demonstrate the existence
of other plausible causes. Id. Importantly, Appellant’s experts do not testify, must less justify,
that either scenario is in any way plausible.
46
   RR4, page 75, line 17 – page 76, line 9. A similar challenge was rejected in Jackson v. Black
& Decker (US), Inc., 2008 U.S. Dist. LEXIS 123918, *19 (N.D.Tex. 2008).


                                                 15
         Mr. Goodson acted as a qualified expert and appropriately excluded an

electrical fire source. Mr. Chaney was entitled to rely on his findings and did so

when excluding this potential cause of the fire.47

                Expert Testimony From a Qualified Mechanical Engineer
                 Eliminated a Gas Leak as a Potential Cause of the Fire

         As noted above, the presence of a gas pipe near the area of fire origin

required that the possibility of a gas fire be examined. In fact, during the post-fire

testing, the gas line was shown to have a small leak.

         Mr. Chaney then discussed whether plumbing or gas could account for the

fire. Mr. Chaney testified a very small gas leak existed in the gas line leading to

the fireplace, but that the size of the leak would not produce sufficient gas to ignite,

as the gas would dissipate.48 Mr. Chaney also discounted a gas ignition based on

the lack of an audible explosion reported by the Allbaughs and the absence of any

gas smell.49 Additionally, Mr. Chaney noted that the gas line had been pressure

tested before the fireplace was used and was found to have no leaks.50 Mr. Chaney

also noted the absence of burn patterns near the gas line or in the area where gas




47
     RR6, page 190, line 19 – 21.
48
     RR6, page 191, line 4 – 10.
49
     RR6, page 191, line 11- 14.
50
     RR6, page 191, line 14 – 21.


                                          16
would be expected to migrate.51 Based on this investigation, Mr. Chaney stated

that he was able to eliminate gas as a potential cause of the fire.52

       Mr. Chaney also looked to the opinions of mechanical engineer, Mr. Paul

Carper, to exclude a gas leak as the cause of the fire.53 Mr. Carper examined the

gas line because it was in the area of fire origin.54 To inspect the gas line, gas at a

pressure of twenty times the norm was fed through the line to see if any observable

leak was present.55 However, the size of the leak was minimal. To rule out a pre-

fire gas leak as a cause of the accident, Mr. Carper noted that a pre-fire inspection

of the gas line showed no indication of a leak.56 The fireplace had not been used

between the time of the inspection and the date of the fire.57 Mr. Carper also noted

the absence of any reports of a gas smell or a gas explosion noise, which would be

expected if a gas leak ignited.58 Further, based on the size of the leak, Mr. Carper

noted that any escaping gas would dissipate through the fireplace flue.59 Rather

than pre-date the fire, Mr. Carper testified that it was probable that the leak was

51
   RR6, page 192, line 16 – page 193, line 5
52
   RR6, page 192, line 6 – 8.
53
    As with Mr. Chaney, Appellant did not challenge Mr. Carper’s qualifications to opine as an
expert. In brief, Mr. Carper holds a bachelor of science in mechanical engineering from Texas
A&M. He has been a licensed professional engineer since 1993 and holds a P.E. license in five
states. He has acted as a forensic consultant since 1998. As part of this training, Mr. Carper has
extensive training regarding gas lines and gas appliances. He also has experience and training in
materials analysis. RR5, page 141, line 17 – page 146, line 15.
54
   RR5, page 147, line 18 – 25.
55
   RR5, page 148, line 5 – page 149, line 11.
56
   RR5, page 155, line 8 – 25.
57
   RR5, page 156, line 1 – 15.
58
   RR5, page 157, line 2 – 6.
59
   RR5, page 156, line 16 – page 157, line 1.


                                               17
caused during the fire, when the heat caused the interior seal of the gas line to fail,

which would be expected as the fire in the firebox would be approximately 1880

degrees Fahrenheit.60 For these reasons, Mr. Carper testified that he was able to

eliminate a gas leak as a possible cause of the fire.61

       Given this investigation and testimony, Mr. Chaney was entitled to rely on

Mr. Carper’s opinion that a gas leak did not cause the fire in question.

       Expert Testimony Demonstrated That a False Chimney Caused the Fire

       The Allbaughs’ experts did not rely on simple process of elimination to

conclude that a false chimney caused the OSB to ignite. Instead, the Allbaughs’

experts followed the nationally recognized investigation methodology of NFPA

921 when they examined the physical evidence present at the fire scene and relied

on published scientific data and studies to reach their conclusions.

             Expert Testimony Established That a False Chimney Existed

       Consistent with NFPA 921, Mr. Chaney investigated whether or not a false

chimney exposing combustible material to heat existed. Mr. Chaney visited the

fire scene on the day after the fire. On investigation, he found gaps surrounding

the stone fireplace:




60
   RR5, page 154, line 14 – page 155, line 7. Mr. Chaney echoed this conclusion, testifying that
the leak was the likely result of the fire and the normal expansion/contraction of metals in the gas
line. RR7, page 76, line 21 – page 77, line 2.
61
   RR5, page 159, line 1 – page 160, line 9.


                                                18
         Q.      Before any removal of stone, were there any gaps in the front
                 facing of the fireplace?

         A.      Yes.

         Q.      All right. Where did you see the gaps?

         A.      Gaps, gaps, everywhere gaps. No, there was gaps. There was
                 gaps at the sidewall, there was gaps at the opening. So if you
                 were to put your head down in the opening of the fireplace and
                 look upward, you’d see a gap where the stucco came over and
                 was at its edge. If you’re looking at it from that perspective, the
                 outside of the stucco, the finished part, is out here (indicating)
                 and the metal lath is in here and the fireplace is over here. So
                 when you’re looking at that, in here there was a gap. And on
                 the side walls where the stucco meets the fireplace, there was a
                 gap on both sides.
                                                  *****

         Q.      In your experience as a origin and cause investigator, are there
                 supposed to be gaps around the fireplace opening?

         A.      There should not be any.

         Q.      Why not?
         A.      Hot gasses or radiant heat, combination of the heat transfer
                 mechanisms can get in through a gap and if there’s a
                 combustible too close to that opening, it can begin a glowing
                 fire or smoldering fire and then spread the fire.62


Mr. Chaney also showed the jury photos of the fireplace which identified the

location of the gaps in question.63 Mr. Chaney then testified about the burn

patterns noted on the fireplace and specifically in the space behind the “gap” areas,


62
     RR6, page 199, line 5 – page 200, line 16.
63
     RR6, page 200, line 17 – page 202, line 8.


                                                   19
noting that the burn patterns showed those areas as the point of origin for the fire.64

Mr. Chaney showed the jury photographs of the discolored stucco, further

demonstrating the area of fire origin.65

       Appellant does not dispute the existence of post-fire gaps surrounding the

fire box. Instead, Appellant argues that there is no evidence these gaps existed

prior to the fire. As the below evidence shows, Appellant’s assertion ignores the

evidence at trial.

         Two Separate Construction Defects Account for the Observed Gaps

       Gaps between the firebox and the surrounding stucco were the result of two

construction defects by Appellant. First, rather than follow the correct installation

methods, Appellant attempted to wrap the stucco around the combustible OSB, but

did so without providing support for the stucco. Second, Appellant failed to apply

a fire-resistant mortar at the various joints around the firebox.

       Mr. Mark Stanford, a construction professional,66 testified about the

defective stucco installation.        Specifically, Mr. Stanford noted that both the

International Residential Building Code and the NFPA both discuss the clearances

64
    RR6, page 202, line 25 – page 203, line 22; page 203, line 9 – page 205, line 9.
65
    RR6, page 210, line 25 – page 212, line 5.
66
    Appellant did not contest Mr. Stanford’s qualifications to discuss construction practices at
trial. Mr. Stanford has been in the construction business since 1961. He owns two companies,
one which is a construction company and the other which provides consulting services, including
forensic analysis. He has specific training in air pathways around fireplaces and has supervised
the installation and repair of fireplaces. Mr. Stanford was familiar with both the installation
manual for the Allbaughs’ fireplace and with the applicable building codes for the Allbaughs’
home. RR8, page 151, line 9 – 161, line 11.


                                              20
to keep combustible materials like OSB away from fireplace openings.67 Both

documents require that any combustible material be at least 8 inches away from the

firebox on all sides.68 The NFPA and fireplace installation manual also require that

all joints be sealed using a fire-resistant mortar.69

         Mr. Stanford testified that the reason for these clearances was avoidance of

fire due to a “false chimney.” Mr. Stanford read to the jury from the installation

manual the following warning about this risk:

         Important. Failure to seal any gaps between the front face of the
         standard fireplace and the back of the noncombustible finish facing
         material will create what is known as a false chimney. A false
         chimney in this case is the narrow gap mentioned above between the
         back of the non-combustible facing material at the top of the firebox
         opening and the rough front of the standard smoke done. If left
         unfilled, this gap creates a false chimney which can cause a fire
         hazard by drawing considerable heat out of the firebox and into the
         space behind the noncombustible finish facing, and from there up into
         the wall cavity behind the drywall or other sheathing material that
         houses a standard fireplace.70

         Mr. Stanford went on to testify about the stucco installation at the fireplace.

In addition to improperly placing combustible OSB too close to the firebox,71

Appellant also used improper stucco installation methods. Specifically, the stucco

was applied at the firebox in a manner which was not stable because the wire

corner bead was cut and no metal lathe was used beneath it. As a result, the stucco
67
     RR8, page 161, line 12 – 14;
68
     RR8, page 162, line 4 – page 165, line 24.
69
     RR8, page 166, line 24 – page 169, line 10.
70
     RR8, page 170, line 2 – 15. Exhibit 15.
71
     RR8, page 174, line 16 – page 175, line 14.


                                                   21
assembly was unstable and unable to create an airtight seal.72 More important, the

improper stucco installation would leave a narrow gap behind that installation.73

Further, the improper installation placed several dissimilar materials next to one

another, but, absent bonding, allowed for narrow pathways through which air and

heat could migrate.74 To prevent such migration, Mr. Stanford testified that a heat

resistant mortar should have been applied at the joint. However, his inspection

showed no such mortar present.75 Mr. Stanford’s opinions were echoed by Mr. Joe

Stevens, the manufacturer representative for the fireplace. Mr. Stevens testified

that when he inspected the fireplace that the manufacturer required clearances for

combustibles had not been maintained.76 Additionally, Mr. Stevens also noted the

gaps around the fireplace and that there was no evidence of proper mortar.77

Finally, in the early stages of the fire, one witness, Mr. David Birdwell, testified

that he went over to the fireplace, looked up and saw the fire burning through one

of the gaps:

       Q.      So what did you do next did? Did anyone get waken up, or did
               you do more to the fireplace?



72
   RR8, page 175, line 15 – page 181, line 20. Mr. Stanford also demonstrated the improper
stucco assembly in court using material gather from the fire scene and photographs taken
showing the assembly.
73
   RR8, page 182, line 3 – 186, line 17.
74
   RR8, page 182, line 7 – 15, page 184, line 11.
75
   RR8, page 186, line 18 – page 188, line 17.
76
   RR8, page 70, line 3 – 14.
77
   RR8, page 70, line 15 – page 71, line 15.


                                              22
         A.      Well, I—I took a closer look at the fireplace. I actually sat
                 down on the—the stone slab that was in front of the fireplace
                 and just took a closer look at the inside of the fireplace.

                 And at that point, I saw a gap between the stone facing of the
                 fireplace and the actual firebox. And within that gap, there
                 were—there was a glowing debris. So something not in the
                 firebox itself was on fire. And as I—I actually stuck my head
                 into the fireplace to do this, that’s how little heat there was left.
                 I kind of blew into that gap, looking up. And there was
                 glowing debris falling out. It kind of looked like—like—I
                 don’t know, like something fibrous, like glowing asbestos or—
                 or something that had adhesive in it, like burnt particle board or
                 something like that.78

         At trial, and in its brief, Appellant contends that “no evidence shows that a

false chimney existed before the fire.” Appellant’s evidence consists of the denial

of Mr. Zbranek and other installers, which the jury was entitled to discount as

being that of an interested party. Such a disbelief was quite reasonable, given that

Mr. Zbranek testified that he could not recall using the required fire-resistant

mortar to seal the fireplace79 and also had no explanation for how the post-fire gaps

occurred.80 Indeed, Mr. Zbranek testified that he was not aware that fire-resistant

mortar needed to be used in the installation of the fireplace.81 Mr. Zbranek also

could not recall why he determined a non-approved installation was appropriate82




78
     RR3, page 46, line 24 – page 47, line 16.
79
     RR7, page 113, line 22- page 114, line 2; page 128, line 5 – 14.
80
     RR7, page 127, line 25 – page 128, line 4; page 128, line 14 – 17.
81
     RR8, page 45, line 11 – 21.
82
     RR7, page 123, line 12 – page 124, line 6.


                                                 23
and admitted he would not approve a similar construction in the future.83

However, as noted above, positive evidence of a pre-existing gap came from Mr.

Birdwell, who observed the fire through the gap and from Mr. Stanford, who

testified that the defective stucco installation and failure to seal the fireplace joints

left numerous gaps through which air and heat could travel.

     Expert Testimony Established That the Fire Ignited the Combustible OSB

       As noted above, the risks associated with a “false chimney” are well-known

and are warned against in the product manual, the NFPA and the applicable

building codes. The reason for this risk, as testified to by Mr. Chaney and Mr.

Carper, is that combustible materials ignite at temperatures vastly lower that those

produced by a wood burning fire. Mr. Chaney testified, based on applicable

MSDS sheets, that the ignition temperature for OSB is 400 degrees Fahrenheit,84

while the temperature of a burning wood fire is 1880 degrees Fahrenheit.85

       Mr. Carper also testified regarding these issues. Mr. Carper testified that the

fireplace was tested and certified by Underwriters Laboratory, meaning that it had

been tested for safety concerns, such as the required combustible setback of 8



83
   RR7, page 136, line 9 – line 18.
84
   RR6, page 203, line 23 – page 204, line 8.
85
    Mr. Carper also echoed this figure, citing to the table in NFPA 921 regarding temperatures
associated with a wood burning fire. Mr. Carper also reviewed the MSDS information for OSB
materials. RR6, page 53, line 2 – line 11. This information was further substantiated by data
published by the United States Consumer Product Safety Commission. RR6, page 56, line 5 –
line 57, line 6.


                                             24
inches.86 Mr. Carper also testified that the NFPA identifies the temperature of a

wood fire as 1880 degrees Fahrenheit.87 Mr. Carper testified that the temperature

differential was important, because it would cause the OSB to auto ignite, an

occurrence which happens when the temperature surrounding the OSB reaches a

certain level.88      Mr. Carper also referred to the scientific studies of Vytenis

Babrauskas, specifically The Ignition Handbook, which detailed the temperatures

at which combustible material would auto-ignite.89       For this reason, the risks

associated with certain combustible materials in proximity to a firebox are well-

known and documented in NFPA 921.90 Additional testimony on this point came

from the fireplace manufacturer representative, Mr. Joe Stephens, who testified

that he informed Appellant about the need for clearance for combustible

materials91 and that it was his routine practice to leave the installation manual

which contained the warnings noted above at the job site.92

         At trial, Appellant vigorously cross-examined Mr. Chaney and Mr. Carper

about these issues. Specifically, Appellant argued (and continues to argue) that

Mr. Chaney should have reconstructed the fireplace in order to test whether or not

the OSB would catch fire. Mr. Chaney testified that such testing was not required

86
     RR5, page 166, line 17 – page 168, line 6.
87
     RR6, page 50, line 19 – page 52, line 16.
88
     RR6, page 53, line 12 – page 54, line 8.
89
     RR6, page 54, line 9 – page 56, line 4.
90
     RR6, page 58, line 14 – 16.
91
     RR8, page 60, line 1 – 22.
92
     RR8, page 67, line 22 – page 68, line 17.


                                                  25
by NFPA 921.93 Texas law also does not hold that testing is always required to

support an expert’s opinion. Whirlpool Corp. v. Camacho, 298 S.W.3d 631, 642

(Tex.2009). Further, Mr. Chaney pointed out that such testing would not be

meaningful unless replicated many times.94 However, such testing had been done

by the fireplace manufacturer, Mr. Babrauskas and the NFPA, which is what

generated the 8 inch clearance requirement. The following exchange occurred

during cross-examination:

       Q.     Is one of the factors here, the reason you didn’t do this testing,
              is that you didn’t want to know the result?
       A.     No.

       Q.     Did you have any concern that this test would not—if you had
              done it, this test would not have supported your hypothesis in
              this case?

       A.     No.
       Q.     You’re—you’re just confident about that?

       A.     I know about tests that have been done on a similar fireplace
              that started a fire that he exposed wood right at the opening and,
              hence, the label was developed and the instructions in the
              manual about keeping wood up above eight inches from the
              opening of the fireplace.

                                            *****



93
    RR6, page 173, lines 12 – 16. Appellant’s expert, Mr. Nichols confirmed that NFPA 921
does not require testing as well. RR10, page 127, line 12 – page 128, line 24.
94
   RR7, page 20, line 13 – page 23, line 6. Appellant argues that testing gives better data than
yielded by the Allbaughs’ experts. Assuming that an accurate test could be performed, the
presence of a “superior” test does not invalidate other methods.


                                              26
         Q.      Yeah, if you had done that, you’re absolutely certain that the
                 results would have supported your reverse cognitive analysis?

         A.      If you absolutely replicated the fireplace at the Allbaughs’
                 house on December 24, 2008, you get the same fire. That’s my
                 opinion.
         Q.      Okay. As—any you have that to a science—in your opinion, is
                 that a scientific certitude?
         A.      I think it—it is a scientific probability. That is exactly what
                 would have happened.95


Simply put, Appellant tried to make this argument before the trial court and the

jury. The argument failed then and fails now. More than adequate testimony

regarding the existence of a false chimney and the mechanism for the fire was

presented to the jury.

                                            Conclusion

         Despite Appellant’s claim, the Gharda case does not impact the issues

present here, as there are many significant dissimilarities:


                  GHARDA                                 ALLBAUGH

Experts hypothesized that human error Positive testimony demonstrated that
in the manufacturing process possibly Appellant improperly installed the
led to the presence of excess EDC.    fireplace and failed to seal gaps with
                                      fire-resistant mortar, thereby creating
                                      the false chimney.

Experts hypothesized that excess EDC False chimneys are a known hazard in
could cause an exothermic reaction.  fireplace    construction and    are
                                     specifically warned against by the
95
     RR7, page 24, line 23 – page 27, line 5.


                                                27
                                         installation manuals, as well as various
                                         building codes and the NFPA.

Experts hypothesized that EDC could Published data from nationally relied
cause an exothermic reaction.       upon sources showed that combustible
                                    materials will auto-ignite at the
                                    temperatures generated by a wood fire.

The area in which the fire originated All experts agreed the fire began in the
was unknown.                          interstitial space above the firebox
                                      where       the    improperly      place
                                      combustible OSB was located.


      Not only does the Gharda case significantly differ from the facts present

herein, but Appellant’s challenge to the methodology used by the Allbaughs’

experts would, if accepted, undercut the examination process used and approved by

fire experts every day.    Moreover, such acceptance could have far reaching

implications, as investigations done using the NFPA 921 methodology are used in

many proceedings, including criminal trials.

      Appellant’s point of error should be overruled and the judgment of the trial

court and jury should be upheld.




                                        28
Respectfully submitted,

COZEN O’CONNOR


BY: /s/ Gregory S. Hudson
    Gregory S. Hudson
    State Bar No. 00790929
    COZEN O’CONNOR
    One Houston Center
    1221 McKinney Street, Suite 2900
    Houston, Texas 77010
    Telephone: (832) 214-3900
    Facsimile: (832) 214-3905
    Email:       ghudson@cozen.com

       Suzanne C. Radcliff
       Texas Bar No. 24014420
       COZEN O’CONNOR
       1717 Main Street, Suite 3400
       Dallas, TX 75201
       Telephone: (214) 462-3000
       Facsimile: (214) 462-3299
       Email:      acook@cozen.com
       Email:      scradcliff@cozen.com


       ATTORNEYS FOR APPELLEES




  29
                       CERTIFICATE OF COMPLIANCE
      This document complies with the typeface requirements of Texas Rule of
Appellate Procedure 9.4(e) because it has been prepared in a conventional typeface
no smaller that 14-point for text and 12-point for footnotes.     This document
contains 7663 words.


                                     By:    /s/ Gregory S. Hudson
                                            Texas State Bar No. 00790929




                                       30
                           CERTIFICATE OF SERVICE
        I do hereby certify that a true and correct copy of this document was served
on the parties via Electronic Court Filing on this 30th day of June, 2015.


        David E. Chamberlain
        Tim Poteet
        Erin Westendorf-Boyd
        Chamberlain McHaney
        301 Congress Avenue, 21st Floor
        Austin, Texas 78701
        Telephone: (512) 474-9124
        Facsimile: (512) 474-8582
        Emails:     dchamberlain@chmc-law.com
                    tpoteet@chmc-law.com
                    ewestendorf@chmc-law. com

        Attorneys for Defendant Zbranek Custom Homes, Ltd.




                                        By:    /s/ Gregory S. Hudson
                                               Texas State Bar No. 00790929




LEGAL\23314524\3




                                          31
