Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
05/24/2019 09:08 AM CDT




                                                      - 454 -
                                  Nebraska Supreme Court A dvance Sheets
                                          302 Nebraska R eports
                                          LARSEN v. 401 MAIN STREET
                                              Cite as 302 Neb. 454




                       Lee Larsen and A my Larsen, husband and wife, and
                       Plattsmouth Chiropractic Center, Inc., a Nebraska
                        corporation, appellants, v. 401 M ain Street, I nc.,
                            a Nebraska corporation, doing business as
                               Quart House Pub, and H. & C., Inc.,
                               a Nebraska corporation, appellees.
                                                  ___ N.W.2d ___

                                        Filed March 8, 2019.    No. S-18-168.

                 1. Trial: Expert Witnesses: Appeal and Error. An appellate court reviews
                    de novo whether the trial court applied the correct legal standards for
                    admitting an expert’s testimony.
                 2. ____: ____: ____. An appellate court reviews for abuse of discretion
                    how the trial court applied the appropriate standards in deciding whether
                    to admit or exclude an expert’s testimony.
                 3. Summary Judgment: Appeal and Error. An appellate court will
                    affirm a lower court’s grant of summary judgment if the pleadings and
                    admitted evidence show that there is no genuine issue as to any material
                    facts or as to the ultimate inferences that may be drawn from those facts
                    and that the moving party is entitled to judgment as a matter of law.
                 4. ____: ____. In reviewing a summary judgment, an appellate court views
                    the evidence in the light most favorable to the party against whom the
                    judgment was granted and gives that party the benefit of all reasonable
                    inferences deducible from the evidence.
                 5. Courts: Expert Witnesses. Under the Daubert v. Merrell Dow
                    Pharmaceuticals, Inc., 509 U.S. 579, 113 S. Ct. 2786, 125 L. Ed. 2d 469
                    (1993), and Schafersman v. Agland Coop, 262 Neb. 215, 631 N.W.2d
                    862 (2001), framework, the trial court acts as a gatekeeper to ensure the
                    evidentiary relevance and reliability of an expert’s opinion.
                 6. Trial: Expert Witnesses. Under the framework established by Daubert
                    v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S. Ct. 2786,
                    125 L. Ed. 2d 469 (1993), and Schafersman v. Agland Coop, 262 Neb.
                    215, 631 N.W.2d 862 (2001), if an expert’s opinion involves scientific or
                                 - 455 -
           Nebraska Supreme Court A dvance Sheets
                   302 Nebraska R eports
                     LARSEN v. 401 MAIN STREET
                         Cite as 302 Neb. 454

   specialized knowledge, a trial court must determine whether the reason-
   ing or methodology underlying the testimony is valid (reliable). It must
   also determine whether that reasoning or methodology can be properly
   applied to the facts in issue.

  Appeal from the District Court for Cass County: Michael A.
Smith, Judge. Affirmed.
 Thomas A. Grennan, and Adam J. Wachal, of Gross &
Welch, P.C., L.L.O., for appellants.
   Robert D. Mullin, Jr., of McGrath, North, Mullin & Kratz,
P.C., L.L.O., for appellees.
  Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke,
Papik, and Freudenberg, JJ.
   Papik, J.
   A fire broke out in the basement of the Quart House Pub,
a bar in Plattsmouth, Nebraska. The fire spread and damaged
nearby real and personal property belonging to Lee Larsen and
Amy Larsen and Plattsmouth Chiropractic Center, Inc. (col-
lectively Plattsmouth Chiropractic). Plattsmouth Chiropractic
sued the entities that owned the bar and its premises (col-
lectively Quart House), alleging that equipment located in
the basement of the bar had been negligently maintained.
The district court did not allow testimony from Plattsmouth
Chiropractic’s expert on the cause of the fire and sustained
Quart House’s motion for summary judgment. Plattsmouth
Chiropractic now appeals those rulings.
   We find that the district court did not abuse its discre-
tion in striking the testimony of Plattsmouth Chiropractic’s
expert as to the cause of the fire. And without that testi-
mony, Plattsmouth Chiropractic could not present evidence
that would allow a finder of fact to reasonably conclude that
Quart House’s negligence caused the fire and resulting dam-
age. For this reason, summary judgment was proper. Finding
no error, we affirm.
                            - 456 -
          Nebraska Supreme Court A dvance Sheets
                  302 Nebraska R eports
                   LARSEN v. 401 MAIN STREET
                       Cite as 302 Neb. 454

                       BACKGROUND
Pleadings, Motions to Strike, and
Motion for Summary Judgment.
   On January 2, 2014, a fire broke out in the basement of the
Quart House Pub. The fire spread to Plattsmouth Chiropractic’s
neighboring office, resulting in property damage. Plattsmouth
Chiropractic sued Quart House, alleging negligent mainte-
nance of the property. More specifically, it claimed that Quart
House failed to adequately service and maintain the mechani-
cal equipment in the basement, including but not limited to the
boiler and water heater. Plattsmouth Chiropractic alleged that
this failure proximately caused damages to its property. Quart
House’s answer denied the allegations in the petition pertain-
ing to the origin and cause of the fire.
   Plattsmouth Chiropractic designated Duane Wolf as an
expert witness concerning the origin and cause of the fire.
Quart House moved to strike and exclude Wolf’s testimony.
Quart House asserted that Wolf’s testimony did not provide
an admissible causation opinion, was based solely on unreli-
able assumptions and/or methodology, and failed to meet the
requirements of Daubert v. Merrell Dow Pharmaceuticals,
Inc., 509 U.S. 579, 113 S. Ct. 2786, 125 L. Ed. 2d 469
(1993), and Schafersman v. Agland Coop, 262 Neb. 215, 631
N.W.2d 862 (2001). Plattsmouth Chiropractic filed its own
motion to strike and exclude the opinion testimony of Quart
House’s expert.
   Quart House also moved for summary judgment. The par-
ties subsequently addressed the motions to exclude expert
testimony and the motion for summary judgment at the same
hearing.

Hearing on Motions to Strike
and for Summary Judgment.
   At the hearing, the district court received evidence that on
the date of the fire, the bartender on the main floor observed
smoke emanating from some cabinets. The bartender called
                              - 457 -
           Nebraska Supreme Court A dvance Sheets
                   302 Nebraska R eports
                    LARSEN v. 401 MAIN STREET
                        Cite as 302 Neb. 454

the 911 emergency dispatch service and left the building.
Within minutes, volunteer fire department personnel arrived
and observed flames in the cabinets, apparently coming from
the basement. Despite the efforts of the volunteer firefight-
ers and firefighters from other area fire departments, the fire
eventually overtook the building. Due to the unsafe condi-
tions that resulted from extensive damage, fire investiga-
tors were not allowed to inspect the scene and the building
was demolished.
   Both parties agree that the fire originated in the basement
of the bar. The basement housed a walk-in cooler, several air
compressors used for coolers, an old natural gas boiler, and a
water heater. The parties presented evidence concerning the
condition, inspection, and maintenance of the boiler, which
was at least 50 years old. From approximately 1980 to 2010,
the boiler was inspected annually by service professionals, who
performed maintenance as needed. In the 3 to 4 years prior to
the fire, however, no maintenance or inspection of the boiler
had occurred. Neither the cooler nor the water heater ever
received regular inspections.
   Plattsmouth Chiropractic presented the opinions and tes-
timony of Wolf concerning the origin and cause of the fire.
Wolf, a mechanical engineer with a background in fire and
explosion investigation, based his opinion upon a reasonable
degree of “engineering certainty” after reviewing 27 docu-
ments related to the fire at the bar. Wolf admitted in his deposi-
tion that he was unable to determine a “root cause” of the fire,
but testified that it was his belief that the fire originated “in
the vicinity of the boiler.” Wolf believed the fire most likely
originated in the boiler, but he could not eliminate the possibil-
ity that the fire started in the nearby water heater. Additionally,
Wolf acknowledged a possibility that the fire originated in one
of several compressors. When Wolf was asked if he was able to
rule out electrical wiring as the cause of the fire, he responded
that the building’s electrical service was “outside my area
of expertise.”
                              - 458 -
           Nebraska Supreme Court A dvance Sheets
                   302 Nebraska R eports
                    LARSEN v. 401 MAIN STREET
                        Cite as 302 Neb. 454

   Wolf believed that the fire originated from a failure of one
of the items of mechanical equipment in the area of the boiler.
Wolf opined that, because the fire most likely originated due to
the failure of mechanical equipment in the basement, the fire
most likely would not have occurred if the mechanical equip-
ment “had been regularly serviced and replaced as needed.”
   Wolf was critical of Quart House’s maintenance of the
boiler. He stated that boilers require annual maintenance by
qualified service technicians. Wolf testified that because the
boiler lacked certain modern safety features, more monitor-
ing and maintenance were required, but he did not specify
what those measures entailed. In opposition to the opinions
expressed by Wolf, Quart House presented evidence that yearly
inspections were not warranted for such a boiler unless prob-
lems developed and that the bar’s owner had not observed any
problems since leasing the property in 2010.
   While Wolf testified to his beliefs that the fire originated
in the vicinity of the boiler and that the fire most likely origi-
nated in the boiler itself, he admitted that he could not with
reasonable certainty identify a specific way in which the boiler
caused the fire. He did testify that the boiler lacked a “low
water cutoff” and that the absence of this feature posed the risk
of a “dry fire.” Even so, he could not offer an opinion that the
fire was caused by a dry fire. He testified that if he could have
inspected the boiler, he would have looked for evidence of a
dry fire. He also conceded that a dry fire could result from a
progressive loss of water or a sudden one, the latter of which
could not have been prevented by an inspection the month
before the fire.
   As for the water heater, Wolf testified that he did not know
the maintenance requirements for that piece of equipment.
When asked to assume the fire started in the water heater,
Wolf could not identify the most likely failure mode of the
water heater.
   Wolf conceded that his report was not consistent with the
National Fire Protection Association’s publication No. 921
                              - 459 -
           Nebraska Supreme Court A dvance Sheets
                   302 Nebraska R eports
                    LARSEN v. 401 MAIN STREET
                        Cite as 302 Neb. 454

(NFPA 921), which requires ruling out other possible causes
of a fire before adopting a particular hypothesis, and he testi-
fied that a postfire forensic inspection was typically required
to rule out possible causes of a fire. Wolf testified that his
analysis did not determine the root cause of the fire, because
the information available limited his investigation.
   Quart House retained Kenneth Ward, a fire investigator,
as an expert in the area of fire origin and cause. In Ward’s
opinion, because no fire investigators or experts were allowed
inside the building before it was demolished, no adequate
scientific or professional basis existed for any fire investiga-
tor or expert to render an opinion as to the cause or origin of
the fire.
   According to Ward, NFPA 921 was the generally accepted
guideline for proper scientific methodology in “origin and
cause” fire investigations. He stated that Wolf’s methodology
did not comply with NFPA 921 methodology. Ward explained
that NFPA 921 does not allow an investigator to determine the
cause of a fire without first pinpointing the origin of the fire,
and in this instance, Ward named 26 possibilities that could
not be eliminated. Furthermore, Ward testified that Wolf’s
opinion that the fire originated in a particular part of the base-
ment was not based upon acceptable scientific methodology,
because it was based on observations rather than interpreta-
tion of burn patterns and area mapping procedures. Ward was
not aware of guidelines or standards for fire investigation that
would support Wolf’s methodology.

District Court’s Rulings.
   The district court overruled the motion to strike Ward’s
testimony and sustained the motion to strike Wolf’s testimony.
The district court reasoned that although Wolf was well quali-
fied as an expert in mechanical engineering, his testimony
regarding causation did not meet the Daubert/Schafersman
threshold, because the methodology could not be properly
applied to the facts at issue. See Daubert v. Merrell Dow
                             - 460 -
           Nebraska Supreme Court A dvance Sheets
                   302 Nebraska R eports
                   LARSEN v. 401 MAIN STREET
                       Cite as 302 Neb. 454

Pharmaceuticals, Inc., 509 U.S. 579, 113 S. Ct. 2786, 125
L. Ed. 2d 469 (1993), and Schafersman v. Agland Coop, 262
Neb. 215, 631 N.W.2d 862 (2001). The district court pointed
to the fact that Wolf could not offer an opinion as to the cause
of the fire. The district court emphasized that, at best, Wolf
could testify only that the cause of the fire was consistent
with boiler failure, but he could not testify that a failure of
the boiler caused the fire. The district court also noted that
Wolf could not determine whether the boiler ignited due to a
progressive loss of water or a sudden one and that, by Wolf’s
own admission, a recent inspection would not have prevented
a sudden loss of water in the boiler. Given these concessions
by Wolf, the district court stated that it was mere speculation
that the fire could have been prevented by regular inspections
and maintenance of the mechanical equipment.
   The district court also sustained Quart House’s motion for
summary judgment. It found that Plattsmouth Chiropractic
could not show that, but for the alleged failure to maintain and
inspect the boiler, the fire and resulting damages would not
have occurred. According to the court, there was a gap between
the alleged acts of negligence and the cause of the fire. The
district court reiterated that the evidence did not support a
reasonable inference as to the cause of the fire, only impermis-
sible speculation.
   Plattsmouth Chiropractic now challenges these rulings on
appeal.
                 ASSIGNMENTS OF ERROR
   Plattsmouth Chiropractic assigns, condensed and restated,
that the district court erred in (1) sustaining the motion to
strike the testimony of its expert and (2) granting summary
judgment.
                  STANDARD OF REVIEW
  [1,2] We review de novo whether the trial court applied the
correct legal standards for admitting an expert’s testimony.
Roskop Dairy v. GEA Farm Tech., 292 Neb. 148, 871 N.W.2d
                              - 461 -
           Nebraska Supreme Court A dvance Sheets
                   302 Nebraska R eports
                    LARSEN v. 401 MAIN STREET
                        Cite as 302 Neb. 454

776 (2015). We review for abuse of discretion how the trial
court applied the appropriate standards in deciding whether to
admit or exclude an expert’s testimony. Id.
   [3,4] An appellate court will affirm a lower court’s grant
of summary judgment if the pleadings and admitted evidence
show that there is no genuine issue as to any material facts or
as to the ultimate inferences that may be drawn from those
facts and that the moving party is entitled to judgment as a
matter of law. Sparks v. M&D Trucking, 301 Neb. 977, 921
N.W.2d 110 (2018). In reviewing a summary judgment, an
appellate court views the evidence in the light most favorable
to the party against whom the judgment was granted and gives
that party the benefit of all reasonable inferences deducible
from the evidence. Id.

                           ANALYSIS
Exclusion of Wolf ’s Testimony.
   We first address the contention that the district court erred
in excluding the testimony of Plattsmouth Chiropractic’s
expert, Wolf.
   [5,6] The Nebraska Evidence Rules provide: “If scientific,
technical, or other specialized knowledge will assist the trier of
fact to understand the evidence or to determine a fact in issue,
a witness qualified as an expert by knowledge, skill, experi-
ence, training, or education, may testify thereto in the form of
an opinion or otherwise.” Neb. Evid. R. 702, Neb. Rev. Stat.
§ 27-702 (Reissue 2016). Under the Daubert v. Merrell Dow
Pharmaceuticals, Inc., 509 U.S. 579, 113 S. Ct. 2786, 125 L.
Ed. 2d 469 (1993), and Schafersman v. Agland Coop, 262 Neb.
215, 631 N.W.2d 862 (2001), framework, the trial court acts as
a gatekeeper to ensure the evidentiary relevance and reliability
of an expert’s opinion. Hemsley v. Langdon, 299 Neb. 464, 909
N.W.2d 59 (2018). Therefore, if an expert’s opinion involves
scientific or specialized knowledge, a trial court must deter-
mine whether the reasoning or methodology underlying the
testimony is valid (reliable). Freeman v. Hoffman-La Roche,
                              - 462 -
           Nebraska Supreme Court A dvance Sheets
                   302 Nebraska R eports
                    LARSEN v. 401 MAIN STREET
                        Cite as 302 Neb. 454

Inc., 300 Neb. 47, 911 N.W.2d 591 (2018). It must also deter-
mine whether that reasoning or methodology can be properly
applied to the facts in issue. Id.
   In this case, the district court did not permit Wolf to testify
to his conclusion that the fire and resulting damages were
caused by negligent maintenance of mechanical equipment on
the part of Quart House. It found that Wolf could reach that
conclusion only by engaging in speculation. We have recog-
nized that an expert’s opinion cannot be based on “‘unsup-
ported speculation.’” See King v. Burlington Northern Sante Fe
Ry. Co., 277 Neb. 203, 227, 762 N.W.2d 24, 43 (2009). Here,
we find that the district court did not abuse its discretion in
excluding Wolf’s causation testimony on this basis.
   While Wolf expressed opinions as to the general vicinity
where the fire originated and that the fire was caused by a
mechanical issue, he did not have an opinion about what that
mechanical issue was. In fact, he could not even form an opin-
ion as to the specific piece of equipment in which a mechani-
cal failure occurred. Wolf did testify that he believed the fire
most likely originated in the boiler, but he could not say that a
particular condition in the boiler caused the fire. He mentioned
one scenario involving the boiler—a dry fire caused by a low
water level—as a possible cause, but he could not testify that
scenario was actually the cause of the fire, because he did not
have the opportunity to inspect the boiler. And, in any event,
he admitted that even if the fire was caused by a dry fire in the
boiler, that condition could have developed suddenly; in which
case, by Wolf’s own admission, periodic inspections would not
have prevented the fire.
   If Wolf had opined that the fire was caused by a par-
ticular mechanical failure, we understand how he might have
been able to conclude that proper inspections and maintenance
would have prevented that failure and thus prevented the fire.
But, as we have explained, Wolf did not have an opinion as to
the specific cause of the fire. And, as the “dry fire” scenario
raised by Wolf illustrates, the fire might have been caused by
                              - 463 -
           Nebraska Supreme Court A dvance Sheets
                   302 Nebraska R eports
                    LARSEN v. 401 MAIN STREET
                        Cite as 302 Neb. 454

some condition that would have arisen even if Quart House had
performed all the inspections and maintenance Wolf claims it
should have. In the absence of an explanation from Wolf as
to how he could conclude that proper inspections and mainte-
nance would have prevented the fire without forming an opin-
ion as to its specific cause, we do not believe the district court
abused its discretion by finding that Wolf’s opinion was based
on unsupported speculation.

Summary Judgment.
   Plattsmouth Chiropractic also argues that the district court
erred in granting summary judgment in favor of Quart House.
Plattsmouth Chiropractic contends that there is a genuine
issue of material fact as to the cause of the fire and maintains
that this is the case even if Wolf’s causation testimony is
excluded.
   As we stated above, and as we have often said, an appellate
court will affirm a lower court’s grant of summary judgment if
the pleadings and admitted evidence show that there is no gen-
uine issue as to any material facts or as to the ultimate infer-
ences that may be drawn from those facts and that the moving
party is entitled to judgment as a matter of law. Sparks v. M&D
Trucking, 301 Neb. 977, 921 N.W.2d 110 (2018). Here, as in
any negligence action, Plattsmouth Chiropractic was required
to adduce evidence showing that there was a negligent act or
omission by Quart House and that such act or omission was the
proximate cause of its injury or was a cause which proximately
contributed to it. See Stones v. Sears, Roebuck & Co., 251
Neb. 560, 558 N.W.2d 540 (1997). But without Wolf’s expert
opinion as to causation, only Ward’s opinion remained, and he
unequivocally stated that the condition of the site precluded an
adequate scientific basis for fire experts to render an opinion
as to the cause or origin of the fire. Thus, no admissible expert
opinion established the key element of causation.
   Plattsmouth Chiropractic would have us conclude that sum-
mary judgment was improper even without an expert opinion
                              - 464 -
           Nebraska Supreme Court A dvance Sheets
                   302 Nebraska R eports
                    LARSEN v. 401 MAIN STREET
                        Cite as 302 Neb. 454

that negligence on the part of Quart House proximately caused
the fire. Plattsmouth Chiropractic points to evidence that on
the night of the fire, smoke first emerged from the area above
the boiler and water heater. It also points to testimony from the
bartender that it was cold inside the bar on the night of the fire
and suggests the cold temperature is consistent with a failure
of the boiler. Plattsmouth Chiropractic argues this is sufficient
circumstantial evidence to create a genuine issue of fact as to
the cause of the fire.
   To avoid summary judgment, however, Plattsmouth
Chiropractic had to adduce evidence from which a finder of
fact could conclude, without engaging in guess, speculation,
conjecture, or choice of possibilities, that a negligent failure
to adequately maintain equipment caused the fire and resulting
damage. See Swoboda v. Mercer Mgmt. Co., 251 Neb. 347,
557 N.W.2d 629 (1997). The evidence summarized above sug-
gests, at most, that the fire originated near or in the boiler. It
does not constitute a basis for the finder of fact to conclude
that negligent maintenance on the part of Quart House caused
the fire. Since the record did not contain evidence that would
allow a finder of fact to find that negligent maintenance caused
the fire, without engaging in guess, speculation, conjecture, or
a choice of possibilities, we find that the district court did not
err in granting summary judgment.

                       CONCLUSION
  For the foregoing reasons, we affirm the order of the district
court that excluded Wolf as an expert witness and granted sum-
mary judgment in favor of Quart House.
                                                    A ffirmed.
