and under advisement chordal procedure the second case of the day were reliable the case itself my client's case involves a fire that took the life of their son the factual issues are typical of a fire case the questions are where did the fire originate and what caused the fire these fact issues are usually decided by a jury in this case the trial court erroneous leeway the evidence underlying mr hill and dr dhar his conclusions and by so doing usurp the function of the jury the key legal issue on this appeal is whether the trial court of five the correct legal standard to the question of whether or not a mystery still smells and dr dowdy opinions were of the jury by analyzing the experts conclusions and factual underpinnings of those conclusions the expert conclusions and the facts underlying those conclusions may be in doubt but that's a relevant for purposes of  whether a jury should hear that what the expert has to say on that issue appellant seek reversal of the truck court's decision in a reaming and so that a trial can be had on these issues now the proper methodology for invest each source of ignition within the arab minority n f p a nine twenty one sets this procedure out very well and this is the methodology filed by the appellants experts in this case now for  purposes of this appeal this story can start in the aftermath of the tragic fire special agent martinez with the wisconsin department of justice came in and led the fact investigation for the official fire investigators along with menominee falls fire department the a t f and the menominee falls police department they did a thorough investigation and a special agent martinez report is in our appendix special agent martinez based upon the fire patterns determined that this fire either started in the bed and burned up or in the ceiling fell down on to the  he based that on fire patterns he also ruled out that this fire was intentionally set the remains of the laptop and cell phone were taken into evidence they were on the bed in the potential area of origin least one of them by special agent martinez though three days after the fire fire investigator hill was bought got to the fire scene met with special agent martinez and went over his investigation and gathered facts from his investigation he then did a thorough investigation working from the exteriors least fire damage in to the most fire damage looking at burn patterns he collected data he interviewed witnesses and his investigation is detailed in our brief and it's consistent with n f p a nine twenty one n f p a nine twenty one a systematic analysis of fire patterns can be used to lead back to the heat source that produced them mr hill concluded that the fire was not intentionally set and that careless smoking did not cause the fire and he provided detailed basis for each conclusion you reach which is in our brief in westfield of the spend a moment on the question of flashover asked to mr to perform those calculations especially census i understand it there were some signs consistent with the flash of her having taken place well let me speak from the from the record first and then that the record itself indicates that some of the official investigators thought that the room might have reached flashover they didn't do calculations that would have ruled out flashover well let not because he acknowledged that there were at least some signs of flashover that may have occurred ok i'm here i think you need to really zero in on him because you know he's the one the judge pepper refuse to accept as an expert let me answer let me answer your question he refused he did not do the calculations regarding flashover because he didn't think they were necessary and he didn't think they were necessary because the flashover did not obscure the fire patterns which allowed him to to include that there as an area of origin your honor so flashover flashover as you know from probably studying the material your honor flash over is when a room to their fire starts in a room ok it starts in a corner for example it burns up the hot products of combustion they form at the ceiling the room gets so hot that all of a sudden ignition temperature of everything in the room these papers on my desk my clothing erupt and erupt into flame mr hill did a detailed analysis and found that there was a bed stand that was not that was not fire damaged there were there were other artifacts that were not fire damaged there's no indication that this fairly complex you need to know the heat release you need to know what started on fire first you need to know what the heat release of what started on fire you have to put that into a model ok and you have to look at the volume of the room these are complex calculations mr hill said whether the his his testimony under oath in his deposition is whether or not the room reached flashover was not important to him because the fire patterns for their special agent martinez made the same conclusions he didn't say oh my gosh this whole room is toast there are no fire patters he didn't say that your honor so that's why he didn't do these that test or those calculations because they weren't important for his decision that answer your question well yes look at make think you know westfield versus versus regal beloit a twenty fifteen illinois district court decision decision the court ruled that n f p a nine twenty one meth methodology is reliable and the court held that an expert who followed n f p a nine twenty one should be able to testify in front of a jury even if there is some doubt about his conclusions and judge drove her in westfield there was also the argument that the defendant should have done a test that they could have done and it was pointed out that n f p a nine twenty one gives the investigator discretion on whether or not to do the test or not simply because there is a test available doesn't even necessarily has to be done to reach a conclusion it and westfield is consistent on that point but the trial court in this in this case did not even analyze with whether mr hill followed n f p a nine twenty one didn't even go there they went to his underlying factors big the court analyzed underlying factors and we've gone through that in there in our brief once hill had determined in the area of origin we brought in electrical engineers that ruled out electrical in the entire room ruled out electrical in the entire room the only thing left at that point and you recall the methodology of n f p a nine twenty one the only thing left in the area of origin was the hewlett packard laptop and a nokia cell phone and the in the plaintiff brought in dr  highly qualified lithium ion battery expert he's got years of experience with the chemistry of lithium ion batteries observing testing and determining what internal and external factors cause these batteries literature supporting the notion that hmong can infer from differential damage in battery cells that one particular cell had an internal hall resulting in thermal runaway i don't understand how we reconcile this an inconsistency i saw you know in the briefs that you maintain that he was answering a very specific question but his answer to that question seems hallie inconsistent with the reasoning behind his opinion as to what occurred with cell and a and it's just hard to get past the hatch well let me let me let me try to let me try to help help you out just a little bit this the question if you go back to that deposition testimony in the exchange between counsel and dr he says that there is scientific literature that supports his opinions with respect to differential damage he has aspecific only if there is scientific literature vets says that says and that's the way that he took that question because the sandia report your honor that he cites the sandia report did testing and says that their results damage ok it was not important then how could they under writers laboratories have developed you well six hundred forty one when it went which requires some predictability and now ask you and that was the way typical cross examination but i'm asking you do you have specific scientific literature that says and he was narrowing and pushing dr dowdy that says a doctor stud says well no i can't point you to scientific literature that says that differential damage can be used to analyze but that's how he that's how he does it and that's how that's how he did it and that's how the the sandia report did it that's how the then again argument did it so it can't it certainly not the type of admission in the totality of his of his of his testimony that should be used to bar him from from from explaining that either in redirect at trial or otherwise her bonnet or your republican i just first asked well is there any evidence to support that cell eight acted as a projectile and that's it odd i've questioned and but it's also revealing it's an odd question because there was evidence that this battery had violently exploded violently exploded the the cell canvassed the elliptical the the the interior fuel part the lithium and the windings were blown out one hand the cell jammed into and was punctured and it's on its way out of the laptop he testifies to this but but the trial court is as it is caught up with well he doesn't know exactly where it ended up where does a scientist have to know where a rocket ended up to tell from the physical evidence of the rocket where it was and it's it's revealing because this is the exact question you can evidence the physical evidence of the can distorting and then the jury deciding that pac and samsung here but i'm speaking on behalf of them it's well i think it's important at the outset to give some context to this fire i understand the court is aware of the facts but i think there are this was a heavily damaged compartment everything in that compartment looked different than it did before the fire started and know once that in addition there was there were aspects of this fire that all fire investigators had difficulty in explaining or understanding this was an able bodied young man who was by all evidence awake at the time of this fire was not intoxicated who for some reason or another was unable to make his way out of this fire that day in addition there was a a burn pattern that was very significant and was unexplainable and even mr hill plaintiffs fire experts call that the twenty four twenty five million dollars question and the reason why it was a twenty four twenty five million dollar question for him is because he could not explain why this door was broken down early in the life or the fire in why it showed that the burned patterns on the exteriors of the door and not on the interior of the door the part of the door that faces the room in other words if one were to a pine that there was a fire that started inside a door with the door closed and then the door is busted down to get out one would expect that the fire damage would be on the inside of the door facing the room as opposed the exteriors of the door and so that was an aspect of the of this case that mr hill called the twenty four million dollar question i can explain that now i'll look back to that when i speak to mr about miss hill specifically because mr hill purports to use a process of elimination and under certain circumstances the process of elimination could be an appropriate means to determine an area of origin for a fire however it is not proper to just simply eliminate and disregard evidence that you don't care to think of or can explain that is not how the scientific method works and it's certainly not consistent with the dictates of n f p a ninety one and if  you spend a moment on those against the half yes i can your honor i think it's i think it's a good question because i think there's been some use of terms in this matter that aren't entirely accurate and i think it probably would help to for both nomenclature purposes to explain that then explain the difference expelling contents should not be considered considered as synonymous with exploding exploding something different in the battery science world and so if i may explain that you know answer your question specifically your honor with respect to in the actual you will test a sixteen forty two it is not sixteen forty one it is sixteen forty two and the projectile test of import for reasons i'll get to in a moment has a the tester take a cell and expose it to external heat and then it has the screen set a certain distance i think it's three to five feet your honor but don't hold me to it i'm not a battery scientist but there is a screen that is a certain distance away from the cell under the sixteen forty two test for use in the industry and promoted by you underwriter's laboratory a battery can expel its contents as long as it does not penetrate the screen so it can hit the screen it can leave the battery it can you know expel its contents but as long as it doesn't penetrate the the screen it has not exploded it has merely expelled its contents so the first point i would make is i believe that the evidence in this case demonstrates that one cell expelled its contents i do not concur that the evidence shows that it exploded so that's the first point as as indicated so it was not a part it was not a projectile or there is no evidence that it was a projectile with respect to the hole in the can i don't believe that there's been offered any scientific basis to to indicate that that hole was the result of something that occurred during the fire as opposed to after the fire during the overall efforts when that particular cell was shoveled outside and buried in the debris a pile where it sat for at least asked about the exemplar his his theory is that he looked at an exemplar battery pack and he saw a metal pin in that example or battery pack and then it was from that that extrapolates what must it have been is this thing hit that metal pin and that it bounced out and goes flying across the room however at his deposition he conceded he did not know if that was a dyna pack battery pack in other words his whole theory is based on examining example our that had a metal pin on it without ever to this day as we s here providing any evidence that a dyna pack battery pack has that metal pin in the same location so i submit to you your honor and answered your question that i i do not agree that there is in dish of an explosion of that cell i believe there is in addition  a battery pack going into the battery going into thermal runaway and expelling its contents and which brings me to another point about dr doubt he's opinion in the the lack of scientific foundation for it we have indicated in our briefing and as i think the district court in its very extensive opinion and i would just add you know on the standard of this court giving great deference to the trial court's decision it not being it being upheld unless manifestly erroneous part of the reason is when you're dealing with with issues like this it requires a deep dive by the trial court and in fact the court conducted that deep dive here meaning getting to the scientific method the science behind it and whether it is there are scientific underpinnings for an opinion the court conducted hearing that was almost over i think was over two hours so we had extensive briefing a very vast record of information a hearing that scientific literature like the sandia report that supports his belief the batteries respond in a consistent project to go away when it's supposed to external heat i do you respond to that yeah i understand that they say that your honor i would respond a couple of different ways first off we have proffered peer reviewed scientific literature that says otherwise and i refer specifically to the lindens handbook on batteries which demonstrates in the portion that we cite that there is differential damage between batteries i'm sorry that that there is differential there can be differential damages in batteries but it's the exact list of what mr dowdy contends the scientific literature shows secondly i think it's important at the end of the day dr dowdy said pain is simply you can look at a battery and if one looks more damage than another post fire that's the one that caused the fire that's it and i would submit that if the scientific literature said that it would be quite easy to quote a statement anywhere that says that in fact what i think the district court noted and i think what your honour's will find if you if you read those articles and you read the brief there is no quoting of any of the scientific literature to say that there are there are mr dowdy saying the scientific literature says that however as your honor noted under cross examination that his deposition when he could actually be drilled down on it i asked him give me literature that says that and he could offer not now we have proffered evidence that you could expect a stochastic response between batteries that is to say a very good response and the the analogy i would use because sometimes you throw around words like stochastic in you know being a lawyer i'm not sure on the honest the best scientists but would be popcorn popcorn that you pop can have a stochastic response to heat that is to say some popcorn pops and some doesn't that is a stochastic response a fire scene a fire is very there is fire consumer tronic products get attacked from different points of view and they have different responses as a result of that and so the scientific literature supports the notion that this system there is a there can be a stochastic response and i would add dr dowdy could test it so i am one i do not believe there is a dispute about the scientific literature i think it's answer at his deposition was the truthful and honest answer there is no scientific literature that supports his position secondly i believe if you look at the briefs that have been proffered by the plaintiff they make reference to scientific literature but they do not quote the scientific literature to say what they say it says and  it could easily be tested of course if you just get some exemplar battery packs and expose them to fire if they all behave the same over a period of certain number of tests then an expert would have a foundation to come in this court and say or come before the trial court and say i put batteries i got x number of exemplar batteries from dinah pac and samsung i exposed them to uniform heat and they all behave the same every single time but he did not do that and he admits that he did not  or not there is no evidence that that this thing behaved as quote unquote a projectile we know for a fact and it is undisputed that the battery cell did not find itself outside of the house on the ground beneath a pile of other debris as a result of it having gotten there on its own accord so with respect to this rocket scenario if the rocket is sitting in a garage and you know it didn't get there by using it rockets it did not behave as a rocket to get into the garage in this particular case the battery was found in a pile of debris outside of the house it didn't get there by acting as a projectile it obviously got there by some other means so there is no evidence whatsoever that it acted as a jack burkman and that gets us to scientific the scientific method an expert cannot simply one pick the facts himself and create facts himself in his own mind and then hypothesize a theory based upon those facts without at least in some way shape or form testing that theory or offering some other scientific support to justify that position that's the scientific method and that's what's required by daubert one last point on the on the on the issue of the scientific literature mr do the opposite of what dr dowdy says it says so we have a situation not that not much different than what we might see in the law where someone references in a case for a proposition that it doesn't stand for and that's what's happened here with respect to the the scientific literature fire guide for adaptation of dauber because it requires the scientific method it requires any hypothesis by its terms requires any hypothesis offered by a fire investigator to be tested against evidence and if you test it against the evidence and it doesn't work you must reconsider your hypothesis in that regard the methodology employed by mr hill is entirely flawed and there has no scientific basis under under seven zero two i can just point to a few things the critical question of flashover the reason why flashover is critical is because uniquely mr hill offers a point of origin as opposed to an area of origin in other words he's not saying basically the whole room he's saying right on the bed right on the laptop and because flashover involves near a room full near full room involvement he has to try to explain away what the other investigators found and he did not with all due respect to opponents counsel he did not testify that he didn't do the calculations because he didn't think it was necessary he testified he didn't do it because he did not know how to do it he indicated that it could have been done and certainly they could have engaged in additional effort expert to do it but he didn't do it because he did not know how to do it and i submit this is a flaw that is seen throughout his opinion which is if there is evidence that does is not supportive of his position he simply does not take it into account or disregards it and that is not application of the appropriate method of process of elimination because you must consider under n f p a nine to one you must consider the item test the hypothesis on why is excluded and then excluded and he did not do that i think i may be out of are out of time but you may have an additional ma this very very thank you once again we don't hear critiques of mr hill's and dr diaries methodology we go right to the facts as if we've tried this case we haven't experts didn't stand in front of the jury they were not having the cross examined the issue of flashover wasn't brought up in front of the jury is it important i told you that mr hill testified that he said it wasn't important to him and that there were enough fire patterns in there i said that i didn't say he said the fire as counsel suggests he said the fire started on the laptop he said it started on the bed and then he brought in the expert take a look at that we're here now and we get we get into these these these arguments about about the scientific literature council says you know in the answer just drop in or to your direct question he says the scientific literature probably says that you know extra no heat probably says it extremely heat you know provides consistent results you all sixteen forty two you know we went over that then he says oh well but it's but it's random it's up for the jury to way that scientific literature fit supported that particular one more minute that particular whether or not it exploded my lord i've got it i've got no evidence at selly exploded i i have god and a well respected experienced man more experience than anybody in this room who testified it's exploded follow the proper methodology my god i've got a right to get that done of a jury