UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

MATILDA LACAYO, as Administratrix
of the Estate of Encarnacion
Rodriguez, Jr.,
Plaintiff-Appellant,

v.

SODOMA FARMS OF NORTH CAROLINA,                                         No. 97-1101
INCORPORATED,
Defendant-Appellee,

and

JOHN SODOMA; PAUL SODOMA,
Defendants.

Appeal from the United States District Court
for the Eastern District of North Carolina, at Greenville.
James C. Fox, Chief Judge.
(CA-95-71-4-F2)

Argued: July 15, 1997

Decided: September 22, 1997

Before MURNAGHAN, Circuit Judge, and BUTZNER and
PHILLIPS, Senior Circuit Judges.

_________________________________________________________________

Vacated and remanded by unpublished per curiam opinion.

_________________________________________________________________

COUNSEL

ARGUED: Teresa DeLoatch Bryant, KILPATRICK STOCKTON,
L.L.P., Raleigh, North Carolina, for Appellant. James Nicholas Ellis,
POYNER & SPRUILL, L.L.P., Rocky Mount, North Carolina, for
Appellee. ON BRIEF: Pamela R. DiStefano, Durham, North Caro-
lina; Sylvia H. Walbolt, CARLTON FIELDS, St. Petersburg, Florida,
for Appellant.

_________________________________________________________________

Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).

_________________________________________________________________

OPINION

PER CURIAM:

Encarnacion Rodriguez,1 a migrant farmer, died when a fire con-
sumed the trailer in which he slept. The Administratrix for his estate
sued Sodoma Farms ("Sodoma"), the provider of the trailer and
Rodriguez's employer, alleging that Sodoma violated the Migrant and
Seasonal Agricultural Worker Protection Act ("MSAWPA"), 29
U.S.C.A. § 1801 et seq. (West 1985), by failing to provide smoke
detectors in the trailer as required by law. The district court granted
summary judgment to Sodoma on the basis that there was no evidence
that the failure to provide smoke detectors was the proximate cause
of Rodriguez's death. The Administratrix has appealed.

FACTS

Rodriguez was a migrant worker who was recruited to leave Flor-
ida and work for Sodoma in North Carolina. Sodoma owned and
operated barracks that were used to house migrant workers. Rodri-
guez originally lived in the barracks, but he and a few other
coworkers requested permission to move to other housing since their
fellow workers were often intoxicated, loud, and rowdy. Sodoma
moved Rodriguez and several of his coworkers to a trailer also oper-
ated by Sodoma.
_________________________________________________________________
1 The suit was brought by the Administratrix of Rodriguez's estate.
However, we have referred to Rodriguez as the Plaintiff-Appellant
throughout the case.

                    2
The trailer had not been inspected as required by the MSAWPA.
Furthermore, the trailer did not contain a smoke detector or a fire
extinguisher, both of which were required by law.

Rodriguez shared the three bedroom trailer with four other work-
ers, Wayne Seever, Ray Alexander, Luis Alexander, and Peter Mal-
donado. Seever and Maldonado each had his own room. The
Alexanders shared a room, and Rodriguez slept in the kitchen/living
room.

On the night of July 15, 1993, a fire broke out near Rodriguez's
bed. Seever and Rodriguez were the only individuals home at the time
of the fire. Seever testified that he woke up in his bedroom to the
heavy smell of smoke and that flames were moving across the ceiling
into his bedroom. Seever's bedroom was next to the living room and
was separated from it by a wall and a door. Seever thought he heard
someone coughing and attempted to open the door to the living room,
but was unable to do so because of the heat.

Seever then exited the trailer through an exit door in his bedroom.
Rodriguez was unable to escape. He was found on the floor approxi-
mately five feet from the main entrance door of the trailer clutching
a pillow in his arms.

Sodoma argues that the failure to provide a smoke detector was not
the proximate cause of Rodriguez's injuries. Sodoma presented expert
testimony that Rodriguez's blood alcohol level was .28 and that he
was probably not awake because he was too drunk. However, Rodri-
guez's estate introduced the expert opinion of Dr. Hugh J. Burford
which completely contradicted Sodoma's. Dr. Burford stated that the
.28 blood alcohol level did not make Rodriguez per se intoxicated. In
addition, he claimed that, based on Rodriguez's drinking history,
Rodriguez could maintain between 62 and 75 percent of his normal
function. Furthermore, the expert stated that Rodriguez would cer-
tainly be aware of the fire in spite of his blood alcohol content.

Rodriguez also wanted to present evidence from Kim May, a
Forensic Fire and Explosion Investigator. The expert believed:

                    3
          Because there was not a working smoke detector in the
          mobile home, it is apparent that both occupants discovered
          the fire during an advanced stage as stated by Mr. Seever by
          his observation of the heavy smoke and high heat conditions
          within the mobile home. Had there been a working smoke
          detector, it is very possible that both men would have
          escaped the mobile home, because the environment would
          not have been so hot and the smoke so thick early in the fire.

Moreover, the expert also submitted an affidavit in which he
expressly concluded that "had there been a working smoke detector
inside the trailer, it is more likely than not that Rodriguez would have
escaped the mobile home."

The district court refused to admit the expert's testimony. The dis-
trict court determined that "certain imponderables render impossible
any determination, with sufficient certainty, of a causative link
between the defendant's failure to comply with safety requirements
. . . and the death in the fire." The district court determined that it
"does not perceive that the jury would require the benefit of an
`expert's' opinion in order to discharge its duty."

Furthermore, the district court concluded that even if an expert
opinion was necessary, the expert in the instant case was not qualified
to render such an opinion. Yet, the expert was a firefighter or a fire
investigator for over fifteen years. He had attended hours of training
at schools and seminars regarding fire investigation, and taught sev-
eral classes on fire safety. He was a certified fire and explosion inves-
tigator, and a member of the International Association of Arson
Investigators. The district court asserted that the expert could testify
regarding how the fire was caused, but had no expertise regarding
Rodriguez's reactions to the smoke detector.

The state fire investigator could not determine the cause of the fire.
However, there was evidence that on other occasions Rodriguez
smoked in bed. Sodoma clearly tries to imply that he did so on this
occasion, but there was no evidence in that regard. There was evi-
dence that Seever, the other occupant of the trailer at the time of the
fire, had been smoking a cigarette on the steps of the trailer before
going to bed.

                     4
DISCUSSION

I. The district court erred in excluding consideration of Rodriguez's
           expert on the issue of causation

The Court reviews the district court's decision to exclude the prof-
fered expert testimony under an abuse of discretion standard. Kopf v.
Skyrm, 993 F.2d 374, 378 (4th Cir. 1993). A district court judge is
given broad discretion on whether to admit expert testimony. Hardin
v. Ski Venture, Inc., 50 F.3d 1291, 1296 (4th Cir. 1995). However,
Rule 702 should be interpreted broadly and helpfulness is its "touch-
stone." Kopf, 993 F.2d at 377.

Rule 702 provides:

          If scientific, technical, or other specialized knowledge will
          assist the trier of fact to understand the evidence or to deter-
          mine a fact in issue, a witness qualified as an expert by
          knowledge, skill, experience, training, or education, may
          testify thereto in the form of an opinion or otherwise.

Testimony from an expert is presumed to be helpful unless it con-
cerns matters within the jurors' everyday knowledge. Kopf, 993 F.2d
at 377. A witness's qualifications to render an expert opinion is also
liberally judged by Rule 702. Id. at 377. A person may qualify to give
expert testimony through either knowledge, skill, experience, training,
or education. Id.

In addition, the test for excluding expert testimony is very strict. A
witness must have neither satisfactory knowledge, skill, experience,
training nor education on the issue. Id. at 377. An expert may testify
in the form of opinion; however, that opinion may be excluded if it
is not helpful. Here the evidence was relevant and helpful.

The district court determined that "the court does not perceive that
the jury would require the benefit of an `expert's' opinion in order to
discharge its duty." However, the proper standard to apply is other-
wise. Rule 702 allows expert testimony if it would"assist" the trier
of fact. The testimony need not be essential, it need only be helpful.

                     5
The district court believed that it was too speculative to determine
whether a smoke detector would have saved Rodriguez's life and
therefore the expert's testimony would not be helpful. However, that
puts the conclusion before the evidence. The expert, Kim May, could
testify that the fact that the victim was near the door, clutching a pil-
low, would indicate that he tried to escape. Moreover, the expert
could rely on the fact that Seever, the other occupant of the trailer,
heard someone coughing as an indication that an earlier warning
would have saved Rodriguez. The expert could further testify that a
smoke detector would have given the victim earlier warning. He obvi-
ously could not have testified as to whether the victim was too drunk
to hear it, but he could testify that since the victim had moved towards
the door, the fire detector would have given him an earlier warning
than whatever event did eventually warn him. The expert could then
reach a conclusion, based on his experience, that the victim would
more than likely have been able to escape if a smoke detector had
been present.

Such testimony would have been proper and would certainly have
helped the jury understand the importance of smoke detectors. There
was an abuse of discretion in disregarding testimony of the expert as
to his opinion regarding the consequences of the absence of smoke
detectors. The expert could, at trial, clearly be cross-examined to test
whether his conclusions were too tenuous.

The district court determined that the expert testimony was only
conjecture and guesswork and was insufficient to support the Plain-
tiff's case. There was, however, sufficient evidence for the expert to
reach his conclusion regarding whether the lack of a smoke detector
was the proximate cause of Plaintiff's injuries.

The district court also determined that, even if the evidence was
permissible, it would be impermissible in the present case since the
expert was not qualified. The expert's qualifications were neverthe-
less very impressive. He was a firefighter, and fire investigator, a lec-
turer on fire safety, and a consultant on fire issues. He also attended
hundreds of hours of courses on fire issues and fire safety. He has
conducted approximately one thousand five hundred investigations
related to fires and explosions and has conducted live burns of mobile
homes to collect data for use in analyzing fire safety.

                     6
The district court acknowledged that the expert was qualified to
testify about how fires happen or what was the cause of the fire, but
concluded that he was unable to testify regarding whether Rodriguez
would have gotten out safely if there had been a smoke detector. The
district court's reasoning was presumably that, if Rodriguez was
drunk and comatose, he would not have gotten out even if there was
a functioning smoke detector, and the expert had no knowledge about
Rodriguez's physical state. However, there was sufficient evidence
that Rodriguez was awake to raise a material disputed fact. Especially
on summary judgment, it was not clear that Rodriguez was comatose.
It was clear, or at least arguable, that, since the body was found near
the door, with a pillow in a position to protect his lungs, that Rodri-
guez was not comatose and that the smoke detector would have aided
Rodriguez in escaping.

The expert in the instant case qualifies under each of the five com-
ponents in Kopf. Since he need only qualify under one prong, the
expert in the present case was clearly qualified. He had tremendous
knowledge regarding fire issues as shown by his lectures on the sub-
ject. As a firefighter and fire investigator, the expert had skill and
experience regarding fire issues. He also had significant training and
education. Rodriguez's expert was extremely well qualified to testify
and the district court erred in determining that he was not so qualified.

In Friendship Heights Associates v. Vlastimil Koubek, A.I.A., 785
F.2d 1154, 1160 (4th Cir. 1986), the court held that the district court
abused its discretion in ruling that a witness was not qualified to tes-
tify as an expert on the cause of paint delamination. The district court
determined that the expert did not have sufficient knowledge regard-
ing "coatings" [of paint] and therefore declined to accept her as an
expert. The district court, however, acknowledged that she was well
qualified on other paint matters. The court of appeals stated that the
expert was qualified to testify based on her education, knowledge and
training. The fact that she lacked experience with the particular items
at issue was immaterial and did not prevent her from testifying in the
case. Id. at 1160.

Just as in Friendship Heights, the expert in the instant case was
well qualified to testify at trial. He had tremendous experience, educa-
tion, knowledge and training regarding fire investigation and fire

                    7
safety, and his testimony would have been clearly helpful as to the
consequence of Sodoma's failure to provide a smoke detector.

The district court is given wide discretion regarding expert wit-
nesses. However, in the instant case, the expert is clearly qualified
and the district court exceeded its discretion.

II. The district court erred in granting summary judgment to
           Sodoma

The Court reviews the district court's grant of summary judgment
de novo. Patterson v. McClean Credit Union, 39 F.3d 515, 518 (4th
Cir. 1994). The Court must view the evidence in the light most favor-
able to the nonmoving party and determine if a genuine issue as to
any material fact exists. Anderson v. Liberty Lobby, Inc., 477 U.S.
242, 258 (1986).

The district court granted summary judgment stating:

          [P]laintiff has failed to demonstrate the existence of any
          competent evidence which could tend to establish the neces-
          sary causative link between the defendant's violations of the
          subject safety statues and [Rodriguez's] death. Only by con-
          jecture, guesswork and speculation could an "expert" wit-
          ness or a jury make the leap of logic, and the law simply
          does not permit imposition of liability and sanctions against
          a defendant on that basis.

However, a plaintiff does not have the burden of showing causation
by a legal certainty, he only needs to show here that Sodoma's failure
to comply with the law was more likely than not a proximate cause
of Rodriguez's death. N.C.P.I.--Civil 101.10 (1988) ("The greater
weight of the evidence does not refer to the quantity of the evidence,
but rather to the quality and convincing force of the evidence. It
means that you must be persuaded, considering all of the evidence,
that the necessary facts are more likely than not to exist."). There was
clearly enough evidence regarding causation to send the case to the
jury.2
_________________________________________________________________
2 The issue of proximate cause is ordinarily decided by the jury. Griggs
v. Morehead Memorial Hosp., 345 S.E.2d 430 (N.C.App. 1986).

                     8
Viewing the facts in the light most favorable to Rodriguez, there
was sufficient evidence to show that it is more likely than not that had
a smoke detector been installed in the trailer, Rodriguez would not
have died in the fire.

First, Sodoma has argued that Rodriguez was drunk and comatose
and thus would not have escaped even if a smoke detector was present
in the trailer. However, on summary judgment, Rodriguez's expert
witness's testimony to the contrary should be given greater weight.
Rodriguez's witness testified that at an alcohol level of .28 Rodriguez
would not necessarily be passed out. He further stated that people
who consume large quantities of alcohol are able to function at a
higher blood alcohol level than individuals who do not drink very
much. (A fact completely ignored by Sodoma's expert.) He further
testified that, based on recent studies, and Rodriguez's drinking his-
tory, that Rodriguez could maintain between 62 and 75 percent of his
normal function with a blood alcohol level of .28. Furthermore, he
stated that Rodriguez would certainly be aware of the fire in spite of
his blood alcohol content. Thus, on summary judgment we must
assume that Rodriguez would have heard the smoke alarm.

Moreover, in addition to the expert testimony on alcohol levels, the
testimony also indicates that Rodriguez was awake. Seever, the other
occupant of the trailer, indicated that he thought he heard someone
coughing, and that he tried to check but the fire was too hot to open
the door. Rodriguez and Seever were the only persons in the trailer
at the time.

In addition, Rodriguez was found near the exit door clutching a pil-
low. Rodriguez was not found in bed comatose. Viewing the evidence
in the light most favorable to Rodriguez, the jury could determine that
Rodriguez was trying to escape from the trailer and was using the pil-
low to protect his lungs. It could further conclude that had there been
a smoke detector, Rodriguez would have been warned earlier and
would have escaped the fire.

Sodoma has further argued that Plaintiff has shown no evidence
that the failure to provide a smoke detector was the proximate cause
of Rodriguez's death. It has pointed to the fact that Seever was able
to escape the trailer as proof that the smoke detector would not have

                    9
made any difference. Furthermore, it has argued that the fire was
probably Rodriguez's fault and that Rodriguez's actions were the
proximate cause of his death. Finally, it has contended that Plaintiff's
case is merely speculation and is insufficient to survive summary
judgment. Sylvia Development Corp. v. Calvert County, MD., 48 F.3d
810, 818 (4th Cir. 1995) ("It is the duty of the Court to withdraw the
case from the jury when [the plaintiff's contention] is so tenuous that
it rests merely upon speculation and conjecture.").

However, Rodriguez's case is based on more than mere conjecture.
There is evidence that Rodriguez was awake and coughing, that
Rodriguez tried to escape but was consumed by smoke before he was
able to do so, and that he used a pillow to breathe through to protect
his lungs. Thus, the jury could reasonably conclude that Rodriguez
almost made it out of the trailer alive and would have done so had
there been a smoke detector in the trailer.

Moreover, if the court had allowed the testimony from the expert
witness, there would also have been the expert's conclusion that it
was likely that Rodriguez would have escaped had the trailer con-
tained an operational smoke detector.

Taking the evidence in the light most favorable to the non-moving
party, there was sufficient evidence to withstand summary judgment.
Accordingly, the judgment of the district court is

VACATED AND REMANDED.

                    10
