     Case: 16-31259       Document: 00514589398         Page: 1    Date Filed: 08/07/2018




            IN THE UNITED STATES COURT OF APPEALS
                     FOR THE FIFTH CIRCUIT
                                               United States Court of Appeals
                                                        Fifth Circuit

                                                                                    FILED
                                                                                August 7, 2018
                                      No. 16-31259                               Lyle W. Cayce
                                                                                      Clerk

ATLANTIC SPECIALTY INSURANCE COMPANY; NICHOLAS CHAD
GONZALEZ,

                Plaintiffs - Appellants

v.

PORTER, INCORPORATED, doing business as Formula Boats,

                Defendant - Appellee




                   Appeal from the United States District Court
                      for the Eastern District of Louisiana
                             USDC No. 2:15-CV-570


Before HIGGINBOTHAM and HIGGINSON, Circuit Judges.*
PER CURIAM:**
       This case arises from a fire onboard the Budget Bender, a recreational
yacht owned by Appellant Chad Gonzalez and insured by Appellant Atlantic
Specialty Insurance Company. The Budget Bender caught fire while secured in



       *Judge Edward Prado, a member of the oral argument panel in this case, retired from
the court on April 2, 2018, and, therefore, did not participate in this opinion. This case is
being decided by a quorum. See 28 U.S.C. § 46(d).
       **Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH
CIR. R. 47.5.4.
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its usual slip at a marina in Slidell, Louisiana. Appellants sued the boat’s
manufacturer, Porter, Inc., alleging claims under redhibition and the
Louisiana Products Liability Act. 1 Specifically, Appellants allege that the
Budget Bender contained a defect that allowed water to drip from the deck and
wet bar area into the wiring harness below, leading to corrosion of certain
bundled electrical wires known as “pigtails” on the port side of the boat.
Appellants theorized that this corrosion caused an electrical current to travel
through the boat’s wiring system until it melted wires that in turn ignited a
factory-installed sectional sofa on the starboard side of the vessel. By contrast,
Porter maintains that the cause of the fire is undetermined, and that there is
“nothing to indicate” a connection between the corroded pigtail and the fire.
      Appellants retained three experts: marine surveyor Guy Plaisance,
electrical engineer Troy Little, and fire investigator Gary Jones. Each of these
experts visited the boat individually, and they also participated in a “joint
inspection” with two Porter representatives. 2 Porter filed motions in limine to
exclude each expert, and the district court granted the motions to exclude Little
and Plaisance. Then, after a two-day bench trial, the court found that
Appellants failed to establish that the fire occurred because of a redhibitory
defect or an unreasonably dangerous design flaw and rendered judgment in
favor of Porter. Appellants now challenge the district court’s exclusion of
Plaisance and Little, as well as its ultimate judgment.
       After careful review of the record, the parties’ briefs, and with the benefit
of oral argument, we find no reversible error and, accordingly, affirm.



      1  Appellants also alleged breach of contract and negligence but dropped their breach
of contract claim before trial and have abandoned any freestanding negligence claim on
appeal.
       2 The joint inspection also included a representative from another company, Molex,

that manufactured some of the electrical connectors onboard the Budget Bender. The joint
inspection ruled out the Molex connectors as a possible cause of the fire.
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                                        No. 16-31259
                                               I.
       A district court has considerable discretion to admit or exclude expert
testimony under Federal Rule of Evidence 702. 3 A trial judge serves as a
gatekeeper and “must ensure that any and all scientific testimony or evidence
admitted is not only relevant, but reliable.” 4 “Any step that renders the
[expert’s] analysis unreliable . . . renders the expert testimony inadmissible.” 5
And “[w]here an expert’s opinion is based on insufficient information, the
analysis is unreliable.” 6
       We review the admission or exclusion of expert testimony for abuse of
discretion. “A trial court abuses its discretion when its ruling is based on an
erroneous view of the law or a clearly erroneous assessment of the evidence.” 7
                                               A.
       Appellants’ first excluded expert, Guy Plaisance, inspected the Budget
Bender twice in the month following the fire. Months later, he returned to the
boat to perform a “hose test,” in which he directed water from a garden hose
onto the boat’s wet bar and tracked where the water ended up. He later


       3 Rule 702 provides that:
       A witness who is qualified as an expert by knowledge, skill, experience,
       training, or education may testify in the form of an opinion or otherwise if: (a)
       the expert’s scientific, technical, or other specialized knowledge will help the
       trier of fact to understand the evidence or to determine a fact in issue; (b) the
       testimony is based on sufficient facts or data; (c) the testimony is the product
       of reliable principles and methods; and (d) the expert has reliably applied the
       principles and methods to the facts of the case.
FED. R. EVID. 702.
       4 Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 589 (1993). While

“[m]ost of the safeguards provided for in Daubert are not as essential” in the context of a
bench trial, a trial judge may still exclude expert testimony that is either unreliable or
irrelevant. Gibbs v. Gibbs, 210 F.3d 491, 500 (5th Cir. 2000).
       5 Paz v. Brush Engineered Materials, Inc., 555 F.3d 383, 388 (5th Cir. 2009) (internal

quotation marks omitted).
       6 Id.
       7 Bocanegra v. Vicmar Servs., Inc., 320 F.3d 581, 584 (5th Cir. 2003). “If we find an

abuse of discretion . . . , we next review the error under the harmless error doctrine, affirming
the judgment, unless the ruling affected substantial rights of the complaining party.” Id.
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repeated the experiment on another Porter vessel with a similar wet bar
configuration. According to Plaisance, these “tests” revealed that “water
running on the [wet] bar top” would “drip or flow down onto the DC wiring
harnesses” directly below. Plaisance claimed that this water intrusion was “a
direct result of a defective design and workmanship by [Porter],” and that it
caused the electrical short that led to the fire.
      As a general rule, district courts have wide discretion to admit evidence
of experimental tests. 8 The standard for admissibility turns on what an
experiment is intended to demonstrate. If it is meant to be a simulation or re-
creation of what actually happened, it must be performed under “substantially
similar conditions.” 9 In that case, “the burden is upon the party offering
evidence of out-of-court experiments to lay a proper foundation demonstrating
a similarity of circumstances and conditions.” 10 While an experiment need not
“precisely reproduce[]” every condition, it must be “so nearly the same in
substantial particulars as to afford a fair comparison in respect to the
particular issue to which the test is directed.” 11 By contrast, “[i]f a party offers
the demonstrative evidence only as an illustration of general scientific
principles, . . . it need not pass this ‘substantial similarity’ test.” 12
      Here, the district court concluded that the “hose tests” were intended to
recreate the event that allegedly caused the fire—i.e., water dripping from the
wet bar into the wiring harness. Accordingly, Appellants needed to show that
the experiment occurred under conditions that were substantially similar to
Gonzalez’s use and maintenance of the Budget Bender before the fire. The



      8 Barnes v. General Motors Corp., 547 F.2d 275, 277 (5th Cir. 1977).
      9 Id.
      10 Id.
      11 Id. (internal quotation marks omitted).
      12 McCune v. Graco Children’s Products, Inc., 495 F. App’x 535, 540 (5th Cir. 2012)

(unpublished); see also Muth v. Ford Motor Co., 461 F.3d 557, 566 (5th Cir. 2006).
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district court found that Appellants failed to meet that burden. The court noted
that Plaisance’s videos did not contain important information about how he
conducted the experiment, such as “how long the hose ha[d] been running” or
“the pressure of the water coming out of the hose.” Moreover, the video showed
“a continuous stream of water from a garden hose directly at the junction
between the back of the wet bar and the boat’s wall,” and there was no
indication that Gonzalez ever used a hose in that fashion. In fact, as the district
court noted, Plaisance did not provide any information about how Gonzalez
typically washed the boat. The court concluded that given these “critical
missing details,” Plaisance could not make a “fair comparison” between the
hose-test videos and the conditions that allegedly led to the fire. On that basis,
it excluded the videos. Next, the court excluded Plaisance from testifying since
his opinions were “based on the unreliable hose tests,” and thus there was “no
evidentiary basis for his testimony.”
       On appeal, Appellants do not argue that Plaisance should have been
allowed to testify after the videos were excluded, nor do they claim to have met
the substantial similarity requirement. Instead, Appellants insist only that the
hose-test videos were not intended as a re-enactment or a simulation, and thus
the substantial similarity requirement should not apply. We disagree.
Plaisance conducted the hose test “to determine how water was entering the
machinery space wire harness,” which goes directly to Appellants’ theory of the
case. 13 Because Appellants failed to show a substantial similarity of
circumstances and conditions, and because Plaisance’s conclusions were based




       13 Similarly, Appellants now contend that “these tests were offered to show only that
water will leak behind the wet bar, ultimately travel to the engine room, and land on the
wiring harness there, which would explain the corrosion, then a short circuit, and then a fire,
as it did in this matter.” Once again, this detailed description reveals that the experiment
was not merely an illustration of general scientific principles.
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on the unreliable tests, the district court did not abuse its discretion in
excluding Plaisance’s report and testimony.
                                          B.
         Appellants’ second excluded expert, Troy Little, visited the Budget
Bender on three occasions in 2014, and he submitted a four-page report on his
findings. Little stated that after his first visual inspection, he was able to
confirm that the fire originated near the sectional sofa on the starboard side of
the vessel. He further claimed that during the joint inspection, he discovered
“evidence of significant burning” behind the sofa and “evidence of electrical
activity and conductor severing” in the nearby DC wiring harnesses. Little also
observed “a deteriorated pigtail connection” that was “corroded and exhibited
signs of electrical damage consistent with that of water intrusion.”
         After visually inspecting the damage, Little attempted to perform a
“wiring analysis” using a wiring diagram but was “unable to accurately
determine the relationship” between the port-side pigtail connector and the
fire origin area. Little then returned to the Budget Bender to conduct a “field
wiring analysis.” Little’s report revealed that even after this analysis, “[a]
complete determination of which devices may have been involved and whether
or not the ground circuit was involved ha[d] not been determined.”
Nonetheless, he theorized that water flowing from the wet bar corroded the
pigtail connector and caused a short circuit, which in turn energized circuits
with no circuit breaker protection, causing an electrical current to travel
through the boat’s electrical connections until they overheated and started the
fire.
         The district court found that while Little’s theory “seem[ed] possible, his
report and subsequent deposition reveal two fatal flaws in his methodology
that undercut its reliability.” First, Little did not provide critical data such as
“when the short circuit occurred, the magnitude and duration of the current
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generated by the short circuit, or the amount of energy created and the
temperature generated.” The court found that “[w]ithout this data, Little’s
proposed cause of the fire is nothing more than a possibility rooted in
speculation,” and that the data he does rely on is “at best equally consistent
with being the cause of the fire and an effect of the fire.” Second, the district
court emphasized that Little “never did any testing to confirm his hypothesis,”
even though he could have conducted tests to “clarify absolutely” whether the
corrosion was a cause or effect of the fire. 14
       “[N]othing in either Daubert or the Federal Rules of Evidence requires a
district court to admit opinion evidence that is connected to existing data only
by the ipse dixit of the expert. A court may conclude that there is simply too
great an analytical gap between the data and the opinion proffered.” 15 Based
on our review of the record, it is apparent that the district court did not err in
finding that such a gap existed here. Therefore, we find no abuse of discretion
in the district court’s exclusion of Little’s testimony.
                                               II.
       We turn now to the merits of Appellants’ claims. The district court issued
its Findings of Fact and Conclusions of Law after a two-day bench trial in
which it heard testimony from Appellant Chad Gonzalez, Appellants’
remaining expert, Porter’s expert, and two Porter employees. The court found
that the cause of the fire was undetermined and, relatedly, that Appellants
had failed to establish the existence of a redhibitory defect or an unreasonably




       14  During his deposition, Little admitted that he expected to conduct some additional
testing, though he insisted that he “[thought] that [his] opinion of what’s going on with that
pigtail [was] still accurate.” He further explained that he described the damage as “consistent
with that of water intrusion,” rather than “caused by water intrusion” because he “would
probably withhold ‘caused by’ as an absolute until after . . . additional testing . . . where [he]
can get some more confirmation . . . .”
        15 General Elec. Co. v. Joiner, 522 U.S. 136, 146 (1997).

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dangerous design flaw by a preponderance of the evidence. The court then
rendered judgment in favor of Porter.
      Having reviewed the briefs, the applicable law, and the pertinent
portions of the record, we see no error that warrants disturbing the court’s
findings or its judgment. Accordingly, we affirm.




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