                                                                                ACCEPTED
                                                                            03-14-00131-CV
                                                                                    5531395
                                                                 THIRD COURT OF APPEALS
                                                                            AUSTIN, TEXAS
                                                                        6/3/2015 2:57:57 PM
                                                                          JEFFREY D. KYLE
                                                                                     CLERK
                        NO. 03-14-00131-CV

                   THIRD COURT OF APPEALS                   FILED IN
                                                     3rd COURT OF APPEALS
                        AUSTIN, TEXAS                    AUSTIN, TEXAS
                                                     6/5/2015 8:28:00 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
__________________________________________________________________

                  POST-SUBMISSION BRIEF
         OF APPELLANT ZBRANEK CUSTOM HOMES, LTD.
__________________________________________________________________

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

                              ATTORNEYS FOR APPELLANT




                                 i
                                          TABLE OF CONTENTS

Index of Authorities ............................................................................................ iii

Introduction ...........................................................................................................1

Summary of Allbaughs’ expert testimony ............................................................2

Texas Supreme Court’s Analysis in
      Gharda USA, Inc. v. Control Solutions, Inc……………………………...3

Application of Gharda to this case ......................................................................8

Certificate of Compliance .................................................................................. 11

Certificate of Service ......................................................................................... 12




                                                              ii
                                   INDEX OF AUTHORITIES

Cases


Gharda USA, Inc. v. Control Solutions, Inc.,
 No. 12-0987 (Tex. May 8, 2015) .............................................................. 1, 3-8, 10


TXI Transp. Co. v. Hughes
 306 S.W.3d 230 (Tex. 2010) ..................................................................................9




                                                      iii
                          POST-SUBMISSION BRIEF

Introduction

      Appellant presents this supplemental post-submission brief because the Texas

Supreme Court very recently published an opinion in Gharda USA, Inc. v. Control

Solutions, Inc., No. 12-0987 (Tex. May 8, 2015). Gharda was under review at the

time of filing of Appellant’s Reply Brief, as noted in page 7 of the Reply Brief. The

Gharda opinion bears directly on one of the issues on appeal, namely:


      Whether any evidence of the cause of the fire, and the element of
      causation for negligence, is legally insufficient, or, alternatively,
      factually insufficient, when the Allbaughs’ expert witnesses’ theories
      of fire causation had an “analytical gap” due to lack of sufficient
      evidence of temperatures and heat transfer rates, and the experts did not
      eliminate potential alternative causes of the fire, including specifically
      electrical failure, among others.
      In Gharda, the Texas Supreme Court ruled that expert testimony of several

expert witnesses was improperly admitted where the testimony was interdependent

and based on unreliable evidence. In this brief, Appellant will demonstrate that, just

like the expert witnesses in Gharda, the Allbaughs’ expert witnesses presented

interdependent opinions at trial, based on unreliable opinions and testimony of other

experts. Therefore, all of the Allbaughs’ expert testimony was unreliable, and there

was legally insufficient evidence of proximate cause, an essential element of the

Allbaughs’ claims. As discussed in Appellant’s Brief, an expert’s testimony must

be reliable.


                                          1
Summary of Allbaughs’ expert testimony

       The Allbaughs contended the fireplace construction had a gap in the stucco

structure surrounding at the top of the firebox that left combustible material exposed

above the firebox.1 However, there was no evidence that any such gap existed

before the fire. To the contrary, eyewitness testimony affirmed there was no gap in

the fireplace as constructed.2

       The Allbaughs’ engineer expert, Paul Carper, questioned whether there was a

gap in the stucco that left exposed OSB.3 The Allbaughs’ fire cause and origin

expert, Michael Chaney, testified that the same fire probably would have occurred

that same evening whether or not there was a gap in the stucco that left OSB exposed,

“given the heat source from a burning fire.”4 Chaney assumed the fire started at a

particular point, then reasoned backward to assume that the temperature at that

location was sufficient to start the fire—a “reverse cognitive analysis” as he

characterized it, 5 and an obvious logical fallacy.

       The Allbaughs did not submit reliable or relevant evidence to support any of

their theories of what actually caused the fire, nor did their experts rule out



1
  RR 7:200; RR 7:228; RR 7:243.
2
  RR 28:223 (Lackey Depo. p. 90, lines 3-9); RR 10:24, lines 6-8; RR 10:101, lines 3-8; RR
7:115, lines 2-4; RR 7:122, lines 12-19; RR 7:192, lines 6-8; RR 7:126, lines 4-25, RR 7:127,
lines 1-2.
3
  RR 6:76-78.
4
  RR 7:37, lines 5-19.
5
  RR 7:16, lines 2-9.


                                               2
alternative causes of the fire. Instead, the Allbaughs’ experts offered only conjecture

and speculation. They presented interdependent opinions that stacked unreliable

opinions on top of one another. They performed no test or calculation, nor undertook

any other type of reviewable, reliable analysis to support their hypotheses about the

cause of this fire. In short, the Allbaughs’ evidence of causation was legally

insufficient.

Texas Supreme Court’s Analysis in Gharda USA, Inc. v. Control Solutions, Inc.

      On May 8, 2015, the Texas Supreme Court published an opinion in a fire case

with very similar issues regarding expert testimony, Gharda USA, Inc. v. Control

Solutions, Inc., No. 12-0987 (Tex. May 8, 2015). Gharda USA involved a fire in a

warehouse that was used to formulate pesticides and insecticides. The formulation

of these products required melting of a chemical called chlorpyrifos, manufactured

by Gharda USA, in an industrial oven called a “hot box.” Plaintiffs alleged that the

fire was caused by contamination of chlorpyrifos in the manufacturing process,

causing the chlorpyrifos to release chemicals in the hot box that spontaneously

combusted.

      Plaintiffs in Gharda presented numerous experts at trial in an effort to prove

causation. First, they presented the Harris County Fire Marshal, Harold “Buddy”

Rice, who was the first fire investigator on the scene. He performed two physical

inspections of the scene, only, and performed no testing of any sort. He concluded,



                                          3
based on burn patterns, that the fire originated in the hot box. He opined that some

buildup of vapors in the hot box caused the fire. However, he admitted that he did

not investigate and did not know what the vapor could have been or how it would

have ignited.

      Next, Plaintiff presented a retained fire origin investigator, Salvador

“Sammy” Russo, who tested samples of gases from the burned drums of chlorpyrifos

and opined that a volatile gas was present. Based on his investigation, he opined

that an ignitable vapor in the hot box exploded and the ensuing fire spread

throughout the warehouse. Like Rice, however, he could not testify as to what the

vapor was, the source of the vapor, the quantity of the vapor, or whether the vapor

could reach its flammability limit or an ignition source. Russo deferred to chemists

on these issues.

      Next, the Plaintiffs presented Dr. Armstrong, a chemist. He performed

Russo’s GC-MS testing of the gases and developed an ignition theory. He opined

that several volatile gases were present in the burned drums. He began his search

for an ignition theory with the assumption that Rice and Russo were correct in

placing fire origin in the hot box. He ultimately opined that the chlorpyrifos was

contaminated with a flammable substance called EDC, which caused a process

called exothermic decomposition, which created vapors that spontaneously

combusted or were ignited by static electricity. However, Armstrong never tested



                                         4
nor could he testify as to the amount of EDC contamination that is required to cause

exothermic decomposition, the amount of EDC contamination in the drums, the

concentration of vapors that would have been necessary under his ignition theory,

the temperature at which spontaneous combustion would occur, or how a static

charge could develop in the hot box. Armstrong testified that he did not need to test

his theory.

      Further, Plaintiff presented another chemist named Dr. Cheremisinoff. He

examined Gharda’s manufacturing process and testified that it was “possible” that

flaws in Gharda’s manufacturing process resulted in EDC contamination, because

Gharda used humans to distill the chemical rather than using a computer system to

do so. He testified that drums contaminated with EDC could have exploded if a

vapor cloud of 6% gas formed in the hot box. This theory was based on the

assumption that the drums were sufficiently contaminated to reach that amount of

vapor. He admitted that there was no evidence of the amount of any actual

contamination of the drums.

      In sum, Plaintiffs presented two fire experts who opined as to where the fire

started (in the hot box), but who relied on other experts (Armstrong and

Cheremisinoff) as to how the fire could have started there.         Armstrong and

Cheremisinoff assumed that the fire started in the hot box, and testified that EDC

contamination could have started the fire. Armstrong assumed there was sufficient



                                         5
EDC contamination to cause exothermic decomposition, but did no calculations,

research, or tests to determine what a sufficient amount of contamination would be.

Cheremisinoff testified that it was possible that Gharda’s manufacturing process

could have resulted in EDC contamination, but did not know the actual amount of

EDC in the drums.

       The Texas Supreme Court pointed out that “whether an expert’s testimony is

reliable is based on more than whether the expert’s methodology satisfies the

Robinson factors.”6 Reliable expert testimony must be based on a probability

standard, rather than on mere possibility.7 Expert testimony is unreliable “if there is

too great an analytical gap between the data on which the expert relies and the

opinion offered."8

       The court was particularly critical of the opinion of Cheremisinoff, for a

number of reasons, any of which "would be sufficient to support a conclusion that

Cheremisinoff lacked a reliable foundation" on its own.9 The court confirmed that

expert testimony must be based on reasonable probability, not mere possibility.10

The basis of his opinion was "the byproduct of possibilities."11 Further, his opinion

that the manufacturing process "could have" resulted in contamination was


6
  Gharda, p.14.
7
  Gharda, p.15.
8
  Gharda, p.15.
9
  Gharda, p.16.
10
   Gharda, p.16.
11
   Gharda, p.17.


                                          6
speculation and did not establish that it did so in this case.12 He was unable to testify

to the amount of actual contamination in the drums, but reasoned that there must

have been a sufficient amount of contamination because there was an explosion,

which the court found improper.13 The court found his testimony suffered from

analytical gaps and was connected only by his own ipse dixit.14 He assumed facts

that he was unable to determine.15

       According to the Court, Armstrong’s testimony suffered from the same

deficiencies as Cheremisinoff.16 Armstrong was never able to quantify the amount

of contamination in the drums.17 Armstrong never tested nor could he testify as to

the amount of EDC contamination that is required to cause exothermic

decomposition, the amount of EDC contamination in the drums, the concentration

of vapors that would have been necessary under his ignition theory, the temperature

at which spontaneous combustion would occur, or how a static charge could develop

in the hot box.18 Without this information Armstrong had not even identified facts

or factors consistent with his theory.19 Because the testimony of Armstrong and




12
   Gharda, p.17.
13
   Gharda, p.18.
14
   Gharda, p.18.
15
   Gharda, p.18-19.
16
   Gharda, p.19.
17
   Gharda, p.19.
18
   Gharda, p.20.
19
   Gharda, p.20.


                                           7
Cheremisinoff was unreliable, then the testimony of Rice and Russo, which relied

on their testimony, was likewise unreliable.20

Application of Gharda to this case

         The expert testimony presented by Plaintiffs in both Gharda and the subject

case is the same in its interdependent nature and contains the same flaws criticized

by the Texas Supreme Court.

         Like Armstrong and Cheremisinoff, one of the Allbaughs’ experts, Michael

Chaney, assumed a defect in the installation of the fireplace—a gap in the

surrounding stucco structure that left combustible material exposed above the

firebox—and then assumed that it caused the fire because there was a fire. Similar

to Armstrong and Cheremisinoff, he did not test to find out what the actual

temperatures were at the locations where he assumed the fire started or the rate of

heat transfer from the firebox to the combustible material to prove that any alleged

defect in the installation of the fireplace caused the damage to occur; consequently,

there is no evidence that the temperatures were sufficient to cause a fire in the

manner and at the location to which Chaney testified.

         Chaney’s testimony is strikingly similar to the flawed testimony of

Armstrong. First, he began his causation analysis by making certain assumptions

that had no basis. Chaney called this a “reverse cognitive analysis”: “it's a kind of


20
     Gharda, p.21.


                                          8
reverse concept in doing it that way, to arrive at the numbers that had to have been

present to match all of the data that we got, the witness observations, the ignition

sources in the area, the eliminations of those other potentials."21 Like Armstrong,

Chaney believed he did not need to do any type of testing of his theory, even though

he admitted that heat conduction tests could be done, and would have been more

reliable than his cognitive analysis.22

       Like Cheremisinoff, another of the Allbaughs’ experts, Paul Carper, could not

testify that any gap or a false chimney probably existed between the stucco and the

firebox, but only testified that it was possible.23 Just like the expert evidence in

Gharda, this conclusory testimony lacks objective, evidence-based support and

merely assumes facts that are unable to be determined. The experts’ testimony

contains “analytical gaps,” and expert testimony is unreliable when “there is simply

too great an analytical gap between the data and the opinion proffered.” TXI Transp.

Co. v. Hughes, 306 S.W.3d 230, 239 (Tex. 2010).

       Like the experts in Gharda, the Allbaughs’ experts presented no facts or

evidence to answer a crucial question raised by their theory of causation—how the

material used to frame the fireplace OSB could have sufficiently heated to ignite or


21
   RR 7:20, lines 2-6.
22
   RR 7:21, lines 17-18; RR 7:23, lines 7-10; RR 7:71, line 23 to 72, line 6. Zbranek offered
evidence of actual test results that disproved this “reverse cognitive analysis,” but the Court
erroneously refused to admit it. This is one of the points of error raised by Zbranek on appeal.
23
   RR6:152, line 20 to 153, line 7; RR6:160, lines 13-19; RR 6:76-78.



                                               9
combust in the conditions present, the temperature the OSB heated to, and how it

would have had enough available oxygen to ignite. Because the experts did not

conduct any testing or calculations to support their theories, and did not present any

reliable facts to support their theories, their opinions were subjective, conclusory,

and are not entitled to probative weight.

       There is one important difference between Gharda and the subject case,

however. In Gharda, the electrical engineer expert testified that he had ruled out all

electrical causes of the fire, and no party challenged that testimony.24 Unlike

Gharda, the Allbaughs’ retained electrical engineer, Mark Goodson, specifically

testified that he could not rule out an electrical failure as a cause.25 The Allbaughs’

other experts, who were not electrical engineers, deferred to Goodson’s opinion on

all electrical issues.26

       In sum, just like the expert witnesses in Gharda, the Allbaughs’ expert

witnesses presented unreliable interdependent opinions at trial, based on unreliable

opinions and testimony of others. Therefore, all of the Allbaughs’ expert testimony

was unreliable, and there was legally insufficient evidence of proximate cause, an

essential element of the Allbaughs’ claims.




24
   Gharda, p. 5.
25
   RR 4:62-3; RR 4:67, lines 21-4; RR 4:74-5.
26
   RR 5:117; RR 6:218.


                                                10
      WHEREFORE, PREMISES CONSIDERED, Appellant Zbranek Custom

Homes, Ltd., respectfully asks the Court to review and reverse the judgment of the

trial court, and render judgment that the Allbaughs and Chubb Insurance Company

take nothing. In the alternative, the Court should reverse the judgment of the trial

court and remand this case for a new trial on all issues. Appellant Zbranek Custom

Homes, Ltd., respectfully prays for all other and further relief to which it may be

entitled at law or in equity.

                                      Respectfully submitted,
                                      CHAMBERLAIN ♦ McHANEY
                                      301 Congress Avenue, 21st Floor
                                      Austin, Texas 78701
                                      (512) 474-9124
                                      (512) 474-8582 (fax)
                                      tpoteet@chamberlainmchaney.com
                                      dchamberlain@chamberlainmchaney.com

                                      By: /s/ Tim Poteet
                                          TIM POTEET
                                          State Bar No. 16170300
                                          DAVID E. CHAMBERLAIN
                                          State Bar No. 04059800
                                      ATTORNEYS FOR APPELLANT

                       CERTIFICATE OF COMPLIANCE

This document complies with typeface requirements of Tex. R. App. P. 9.4(e). It
was prepared in a conventional typeface of 14-point for text and 12-point for
footnotes. This document also complies with Tex. R. App. P. 9.4(i) (2)(B), (C) and
contains 2,364 words, excepting the portions listed in Tex. R. App. P. 9.4(i)(1).

                                      By:     /s/ Tim Poteet
                                              TIM POTEET
                                              State Bar No. 16170300

                                         11
                         CERTIFICATE OF SERVICE

       I hereby certify by my signature below that a true and correct copy of the
foregoing has been forwarded to counsel of record as indicated via Electronic Court
Filing, this 3rd day of June, 2015:

Suzanne C. Radcliff
Cozen O’Connor
1717 Main Street, Suite 3400
Dallas, Texas 75201-7335
scradcliff@cozen.com
                                      By:    /s/ Tim Poteet
                                             TIM POTEET
                                             State Bar No. 16170300




                                        12
