United States Court of Appeals

FOR THE EIGHTH CIRCUIT

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No. 03-3836

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Fireman's Fund Insurance

Company;

Plaintiff,

Travelers Indemnity Company of

America;

Intervenor Below/

Appellant,

American Economy Insurance

Company; American International

Recovery; Home Video of

Minneapolis, Inc.;

Intervenors Below,

v.

Canon U.S.A., Inc.,

Appellee.

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Appeal from the United States

District Court for the

District of Minnesota.

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Submitted: October 22, 2004 

Filed: January 12, 2005

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Before BYE, LAY, and GRUENDER, Circuit Judges. 

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1

The Honorable David S. Doty, United States District Judge for the District of

Minnesota.

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GRUENDER, Circuit Judge.

 Travelers Indemnity Company of America (“Travelers”) appeals the district

court’s1

 grant of summary judgment to Canon U.S.A., Inc. (“Canon”) on Travelers’

claims of strict product liability; negligent design, manufacturing and testing; and

breach of warranty. For the reasons discussed below, we affirm.

I. BACKGROUND

On October 16, 2000, a fire destroyed Home Video, a video rental store located

in a strip mall in St. Paul, Minnesota, and damaged the three other businesses in the

strip mall. The mall’s owner was insured by Travelers, the sole appellant in this case.

The insurers of the three other tenants, as well as Home Video, were also plaintiffs

in the suit below.

A Canon model NP 6016 copier was located in the storeroom of Home Video.

The copier had been in use for five years. Service records indicated the copier was

upgraded in 1998. Home Video employees stated that the copier often jammed on the

heavy paper used for making video cassette jackets but had only jammed once on

plain paper in five years. The employees could usually clear paper jams themselves

but occasionally had to call a service technician. The copier was serviced one week

before the fire.

At around 1:15 p.m. on the day of the fire, a Home Video employee set the

copier to make about 80 plain paper copies and left the storeroom with the copying

in progress. The locked storeroom apparently was undisturbed until about 7:30 p.m.,

when another employee entered the storeroom to put some papers in the adjoining
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office. The employee did not see, hear or smell anything unusual. The employee then

smoked a cigarette. The employee claims to have left the storeroom and entered a

back hallway to smoke, although surveillance cameras show him returning to the

front of the store from the direction of the storeroom, not from the back hallway. The

employee also left the storeroom door locked.

At approximately 8:00 p.m., the store telephones began ringing nonstop, the

computers froze, and the security alarms activated. A customer reported the smell of

smoke to Home Video employees, and smoke was spotted in the back of the store.

The employees opened the door to the storeroom and witnessed the fire in progress.

The employees then evacuated the building. The fire destroyed the store and

damaged the other stores in the strip mall.

Several fire investigators examined the scene of the fire. The St. Paul Fire

Department concluded that the fire was unintentional and that the copier was the most

probable cause of the fire. Three other fire scene investigators, hired separately by

Travelers, Home Video and two other tenants’ insurers, also identified the copier as

the source of the fire. Travelers and the other plaintiffs brought suit against Canon

on theories of strict product liability; negligent design, manufacturing and testing; and

breach of warranty.

The plaintiff insurance companies hired several fire causation experts to

determine how the copier could have caused the fire. The burned copier was

subjected to five detailed inspections between early 2001 and September 2002,

including visual, x-ray and electron-microscope examinations. Fire causation experts

Beth Anderson and Michael Wald each produced reports in October 2002 stating that

the copier’s internal burn patterns showed that the upper fixing heater assembly

caused the fire and that the design of the assembly was defective because it included

a thermal fuse safety device that was not properly rated to prevent such a fire.
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Canon’s expert, Lawrence Sacco, filed an expert report challenging the

plaintiffs’ theory. In March 2003, Anderson and Wald each filed a rebuttal of Sacco’s

opinion in which they introduced the copier’s composite power supply board as

another potential cause of the fire. The plaintiffs sought to re-open discovery in

March 2003 in order to obtain more information for their composite power supply

board theory, but the district court denied the motion as untimely. That decision was

not appealed.

Canon moved for summary judgment on the basis that the expert opinions of

Anderson and Wald were inadmissible, leaving the plaintiffs with no evidence of a

defect, a necessary element of each of Travelers’ claims. The district court granted

Canon’s motion, concluding that the expert opinions were unreliable and potentially

confusing to a jury. The district court further held that, even if the expert opinions

were admitted into evidence, the plaintiffs could not demonstrate that the alleged

defects caused the fire. Travelers appeals the district court’s grant of summary

judgment to Canon.

II. DISCUSSION

We review the district court’s grant of summary judgment de novo, applying

the same standard the district court applied. Anderson v. Raymond Corp., 340 F.3d

520, 524 (8th Cir. 2003). We view the evidence in the light most favorable to

Travelers, giving it the benefit of all reasonable inferences that may be drawn from

the evidence. Id. We review the district court’s decision concerning the admission

of expert opinions for an abuse of discretion. Id. at 523.

A. Reliability of the Expert Testimony

The opinion of a qualified expert witness is admissible if (1) it is based upon

sufficient facts or data, (2) it is the product of reliable principles and methods, and (3)
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the expert has applied the principles and methods reliably to the facts of the case.

Fed. R. Evid. 702. A trial court must be given wide latitude in determining whether

an expert’s testimony is reliable. See Kumho Tire Co. v. Carmichael, 526 U.S. 137,

152 (1999).

Anderson and Wald purportedly followed standards set forth by the National

Fire Protection Association in its publication NFPA 921: Guide for Fire and

Explosion Investigations (1998). This guide qualifies as a reliable method endorsed

by a professional organization. See Daubert v. Merrell Dow Pharm., Inc., 509 U.S.

579, 594 (1993). However, NFPA 921 requires that hypotheses of fire origin must

be carefully examined against empirical data obtained from fire scene analysis and

appropriate testing. The district court did not abuse its discretion in concluding that

Anderson and Wald did not apply this standard reliably to the facts of the case.

Anderson and Wald initially stated, to a reasonable degree of engineering

certainty, that the burn patterns inside the copier established the copier’s upper fixing

heater assembly as the cause of the fire. They attempted to demonstrate that the

copier’s safety devices were improperly designed to prevent such a fire.

A brief description of the upper fixing heater assembly is necessary. In normal

copier operation, the heating element in the upper fixing heater assembly applies heat

to affix the copied image to the paper. The copier’s heater control circuitry varies the

electrical current supplied to the heating element to automatically control the amount

of heat generated. The heater control circuitry includes several safety features to

prevent overheating, including programmed shutdown limits based on feedback from

two temperature sensors and independent hardware shutdown limits based on the two

sensors. In addition, if the environmental temperature near the heating element

persistently exceeds a safety threshold, a thermal fuse in the circuit opens, cutting off
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the electrical current to the heating element and stopping any heating. As a final

safety measure to prevent overheating, the heating element is designed to self-destruct

in the event of rapid heating.

Anderson and Wald each stated that a fire in the upper fixing heater assembly

must have started with a malfunction in the heater control circuitry. They concluded

that a defective thermal fuse design failed to prevent the fire. This conclusion was

based on three experimental tests of an exemplar upper fixing heater assembly in

which the heater control circuitry was entirely bypassed, except for the thermal fuse.

By carefully applying electrical current directly to the heating element, Anderson was

able to produce a thin brown scorch line on a sheet of paper fastened to the heating

element before the thermal fuse opened to shut off the current. 

We agree with the district court that this experimental testing did not meet the

standards of NFPA 921. Anderson and Wald admitted that to actually start a fire

without a bypass of the heater control circuitry and its embedded safety features, the

heater control circuitry first would have to malfunction. This undescribed

malfunction would have to supply an electrical current to the heating element

precisely tailored to generate not just scorching, but also an open flame. Furthermore,

the temperature rise would have to be fast enough to avoid triggering the thermal fuse

yet slow enough to avoid cracking the heating element. See Weisgram v. Marley Co.,

169 F.3d 514, 521 (8th Cir. 1999) (excluding an expert’s opinion that a defective

thermostat in a baseboard heater caused a fire because the expert could not adequately

demonstrate how a backup high-limit control failed), aff'd, 528 U.S. 440 (2000). Not

only did the experimental testing fail to produce an open flame, but the experts were

unable to explain the assumed heater control circuitry malfunction in theory or

replicate it in any test. In short, the experimental testing of the heating element and

thermal fuse in isolation did not establish that the thermal fuse would fail to prevent

a fire caused by a heater control circuitry malfunction. 
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Additionally, examination of the thermal fuse in the burned copier revealed that

no electrical current was flowing to the heating element when the fuse opened. In

other words, the heating element was not activated when the rising environmental

temperature caused the fuse to open, suggesting that the heating element was not the

source of the fire. NFPA 921 § 2-3.6 requires the investigator to “compare[] his or

her hypothesis to all known facts,” but Anderson and Wald did not attempt to

reconcile this empirical evidence with their theory.

Travelers also challenges the district court’s finding that the experts’ lastminute alternative theory–a failure of the copier’s composite power supply board–

lacked evidentiary support on the record. In normal copier operation, the composite

power supply board receives power from a standard electrical outlet via the copier’s

power cord. The composite power supply board conditions and distributes the

electrical power to the rest of the copier. 

After learning of two separate incidents involving Canon copiers of the same

model, Anderson and Wald each introduced the composite power supply board theory

in their respective rebuttal reports. In one of these incidents, a composite power

supply board was observed emitting sparks. The other incident involved an actual

fire originating at the composite power supply board, but investigators there noted

evidence that the board had been tampered with prior to the fire.

 Wald’s rebuttal report stated that the burn patterns inside the copier, combined

with his new knowledge of the separate incidents, were “very compelling” evidence

that the composite power supply board was the source of the fire. However, Wald did

not claim that any particular design or manufacturing defect on the board caused the

fire. Furthermore, in his original report, Wald relied on the burn patterns inside the

copier to establish the upper fixing heater assembly, located elsewhere in the copier,

as the source of the fire. We agree with the district court’s conclusion that this

sudden reversal of opinion regarding the meaning of the burn pattern evidence, in a
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case where that evidence was the sole basis from which to infer the location of a

defect, seriously undermines the reliability of the experts’ opinions. 

Anderson similarly changed her opinion of the burn pattern evidence inside the

copier after learning of the two other composite power supply board incidents. Her

rebuttal report simply stated that more information would be helpful in determining

whether the board was involved in the fire, but a motion for additional discovery was

denied as untimely. Anderson later tested electrical components that were “of a

similar type” to components on the composite power supply board. By applying AC

voltage to components designed for DC voltage, Anderson was able to force the

components to spark. However, Anderson did not describe any design or

manufacturing defect on the composite power supply board that would expose such

components to AC voltage. Anderson also admitted that the circumstances

surrounding the two other composite power supply board incidents were substantially

dissimilar to the events surrounding the Home Video fire. 

In summary, neither Anderson nor Wald proposed a specific defect on the

composite power supply board that might have caused the fire. Furthermore, neither

expert carefully examined this hypothesis of fire origin against empirical data

obtained from fire scene analysis and appropriate testing, as required by NFPA 921.

The district court did not abuse its discretion in concluding that the evidentiary

support for the composite power supply board theory was inadequate. 

Because the experts did not apply the principles and methods of NFPA 921

reliably to the facts of the case, the district court did not abuse its discretion in

concluding that Anderson’s and Wald’s expert opinions were unreliable. As a result,

it was not error to exclude these expert opinions.
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B. Potential of the Expert Testimony to Confuse the Jury

In addition to concluding that the expert opinions were unreliable, the district

court excluded the opinions on the alternative basis that the underlying experimental

testing would be confusing to the jury.

The trial court may exclude evidence if it determines the evidence would

confuse the issues or mislead the jury. Fed. R. Evid. 403. The admissibility of

experimental tests in product liability cases “rests largely in the discretion of the trial

judge and his decision will not be overturned absent a clear showing of an abuse of

discretion.” McKnight v. Johnson Controls, Inc., 36 F.3d 1396, 1401 (8th Cir. 1994).

“[E]xperimental evidence falls on a spectrum and the foundational standard for its

admissibility is determined by whether the evidence is closer to simulating the

accident or to demonstrating abstract scientific principles.” Id. at 1402. The more

the experiment appears to simulate the accident, the more similar the conditions of

the experiment must be to the actual accident conditions. Id.

As described above, Anderson and Wald performed three tests on an exemplar

copier and its components. They isolated the heating element and thermal fuse from

the upper fixing heater assembly by bypassing the heater control circuitry and

providing an electrical current of their choosing to the heating element. In two of

these tests, the heating element and thermal fuse were tested outside the copier. The

third test was performed with the upper fixing heater assembly physically installed

in the exemplar copier, although the heating element and thermal fuse were still

operationally isolated from the heater control circuitry and its embedded safety

features.

We agree with the district court that these tests appear to recreate the cause of

the fire while failing to address the presumed malfunction of the heater control

circuitry and its associated safety features. In particular, the experiment on
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operationally isolated components while they were physically installed in an exemplar

copier could lead a juror to believe that the test results were representative of actual

copier operation at the time of the fire. Therefore, the district court did not abuse its

discretion in excluding the experts’ opinions on the basis that the tests of the upper

fixing heater assembly would be confusing to the jury. 

C. Causation

To recover on a claim of strict product liability under Minnesota law, a plaintiff

must present evidence from which a jury could justifiably find that (1) the product

was in a defective condition, unreasonably dangerous for its intended use, (2) the

defect existed when the product left defendant’s control, and (3) the defect was the

proximate cause of the injury sustained. Lee v. Crookston Coca-Cola Bottling Co.,

188 N.W.2d 426, 432 (Minn. 1971). Claims of negligence and breach of warranty

also include the causation element. See Myers v. Hearth Techs., Inc., 621 N.W.2d

787, 792 (Minn. Ct. App. 2001) (setting forth the elements of a negligence claim);

Alley Constr. Co. v. State, 219 N.W.2d 922, 925 n.1 (Minn. 1974) (setting forth the

elements of a breach of warranty claim).

Absent the excluded opinions of the fire causation experts, Travelers presented

no evidence of any defect in the copier. Because Travelers cannot prove that a defect

in the copier was the proximate cause of the fire, summary judgment for Canon was

proper. See Lee, 188 N.W.2d at 432 (“[T]he mere fact of injury during use of the

product usually is insufficient proof to show existence of a defect at the time

defendant relinquished control.”).

Furthermore, even if the expert opinions of Anderson and Wald had been

admissible, we agree with the district court that Travelers failed to present evidence

from which a reasonable jury could find that a defect in the copier was the proximate

cause of the fire. The experts theorized that the thermal fuse was defective.
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However, the experts’ experimental tests did not demonstrate that the heating element

could generate an open flame before the thermal fuse opened, and the experts

admitted that an open flame would have been necessary to start the fire. Therefore,

the experts failed to demonstrate that the thermal fuse was defective.

In addition, the experts admitted that the heater control circuitry would have

to malfunction in order to supply enough electrical current to the heating element to

start a fire. However, the experts advanced no theory or experiment showing how the

heater control circuitry could malfunction to produce such a current. Without

evidence to show that the heater control circuitry could malfunction in such a way as

to start a fire, Travelers cannot show that a defectively designed thermal fuse failed

to prevent that fire. Therefore, even if the expert opinions had been admissible, we

conclude that Travelers produced no evidence from which a reasonable jury could

find that the allegedly defective thermal fuse caused the fire. 

Similarly, neither Anderson nor Wald advanced a theory or experiment

showing how a defect on the composite power supply board could have caused the

fire. Therefore, we also conclude that, had the expert opinions been admissible,

Travelers produced no evidence from which a reasonable jury could find that the

allegedly defective composite power supply board caused the fire.

Travelers claims that, had Canon employed an alternative design for the copier

incorporating additional thermal and electrical fuse protection, a fire could never have

started. Travelers relies on Lauzon v. Senco Prods., Inc., 270 F.3d 681 (8th Cir.

2001), for the proposition that if a plaintiff identifies an alternative design that would

have prevented the accident, then the design of the product involved in the accident

must be a proximate cause.

In Lauzon, the manufacturer produced two models of a nail gun. The “SN2”

model allowed the operator to rapid-fire nails by bouncing a contact point on the nose
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of the gun against the work surface while squeezing the trigger continuously. The

sequential-fire model, on the other hand, required the operator to release and depress

both the trigger and the nose contact point each time to fire a nail. Lauzon drove a

nail through his hand when his SN2 recoiled during rapid-fire mode. An expert tested

the SN2 and determined that such an accident would not have been possible using the

sequential-fire model.

The district court held the expert’s testimony inadmissible, in part because the

expert was unable to rule out other accident theories. Id. at 693. This Court reversed,

holding that the expert “ruled out all other possible explanations through a safer

alternative design, the sequential-fire pneumatic nailer.” Id. The expert’s testing

established that the defective design of the SN2 caused the accident because the “use

of the sequential-fire tool would preclude a nail being expelled at all, let alone into

the hand of Lauzon.” Id. at 694.

The instant case is distinguishable from Lauzon on two important grounds.

First, the experimental testing in Lauzon proved that the rapid-fire mechanism was

a but-for cause of the accident. In contrast, the experimental testing performed by

Anderson and Wald produced no evidence that inadequate fuse protection in the

copier was a but-for cause of the Home Video fire. Second, in Lauzon the safer

alternative design was embodied in an existing product by the same manufacturer,

and the expert showed specifically how its design would have prevented the accident.

In the instant case, the experts talked vaguely about adding more fuses, but offered

no evidence of a workable alternative design that would have made a fire less likely.

Therefore, Lauzon does not help Travelers establish the causation element of its

claims.

In summary, with or without the inadmissible opinions of its fire causation

experts, Travelers did not introduce evidence from which a reasonable jury could find
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that a defect in the copier was the proximate cause of the fire. Therefore, summary

judgment for Canon was proper.

III. CONCLUSION

We affirm the district court’s grant of summary judgment to Canon on

Travelers’ claims of strict product liability; negligent design, manufacturing and

testing; and breach of warranty.

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