IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF TEXAS

FORT WORTH DIVISION

DAVID and TRACEY JACKSON §

§

VS. § CIVIL ACTION 4:06-CV-190-Y

§

BLACK & DECKER (US), INC. §

ORDER DENYING MOTION TO STRIKE

This case arises out of a fire that occurred in the garage of

a home owned by plaintiffs David and Tracey Jackson. A pivotal

issue in this case is the cause and origin of the fire. The

Jacksons contend a malfunctioning battery-powered hedge trimmer

manufactured by defendant Black & Decker (US), Incorporated (“Black

& Decker”), caused the fire. Black & Decker, of course, denies

this. 

Black & Decker has filed a motion (doc. #49) to exclude the

testimony of the Jacksons’ expert, Lacie Smith, under Federal Rule

of Evidence 702 and Daubert v. Merrel Dow Pharmaceuticals, Inc.,

509 U.S. 579 (1993), and its progeny. After review, the Court

concludes that the motion should be DENIED.

I. Factual Background

In the late evening of May 8, 2005, a fire broke out at the

Jacksons’ residence. Their fire alarm sounded, and the Arlington

Fire Department responded to the scene and extinguished the fire.

The Arlington Fire Department prepared an incident report and

determined that the fire originated between the west wall of the

Jacksons’ garage and a 2000 Toyota Sienna parked in the garage.

The cause of the fire was classified as undetermined.
1

 Tracey Jackson’s statements regarding the trimmer have been

inconsistent. Two days after the fire, she said the trimmer was on the floor

next to the west wall of the garage and plugged into an outlet on the west wall

to charge the battery pack. She claimed she used the trimmer the week prior

depleting all of its energy. She said the trimmer had been plugged in charging

for approximately a week before the fire. Nearly two years later at her

deposition, Tracey said the trimmer was on the east wall of the garage plugged

in and charging. She was uncertain as to the last time the trimmer had been used

and the last time the trimmer had been charged. She also could not recall how

long the trimmer had been charging at the time of fire. 

2

 At this interview, Tracey Jackson told Patrick that the trimmer had been

plugged into the west wall receptacle about one week prior to the fire. 

2

The Jacksons stated that their Black & Decker battery-powered

hedge trimmer was located between the Toyota Sienna and the west

wall of the garage. David Jackson stated the trimmer was hanging

on a hook along the west wall of the garage. Tracey Jackson said

the trimmer was on the floor next to the west wall.1

Two days after the fire, All State Insurance Company retained

Rimkus Consulting Group, Incorporated (“Rimkus”), for purposes of

investigating the fire. Bryan Patrick, an employee of Rimkus,

conducted an on-site examination of the Jacksons’ residence using

the NFPA 921 accepted method for investigating fires. He examined

and photographed the residence, interviewed Tracey Jackson2, and

reviewed the incident report prepared by the Arlington Fire

Department. Based on that, Patrick concluded that the fire’s point

of origin was at the base of the west wall of the garage below an

electrical duplex outlet; that the fire was caused by a malfunctioning battery-powered hedge trimmer manufactured by Black and

Decker; that the fuel for the fire was the trimmer’s plastic case;

that all other possible causes of the fire had been eliminated; and

that the fire was accidental. (Pls.’ App. at Ex. A, 5.) 
3

Nearly two years later, the Jacksons’ expert, Lacie Smith, who

is also employed with Rimkus, “performed [a] potentially destructive examination of the retained artifacts” from the fire. (Id. at

Ex. B, 3.) From this examination, Smith reaffirmed the above

conclusions and further concluded that a loose resistive connection

of the trimmer’s battery to the charging adapter caused the fire.

Smith further opined that he could not rule out a partial short

circuit in one or more of the rechargeable batteries as a contributing cause of the fire. 

In April 2006, Black and Decker retained Packer Engineering,

Incorporated (“Packer”), to investigate the cause of the fire.

Packer’s initial examination included reviewing the Rimkus report

made after the on-site examination, and examining the trimmer, the

charging unit for the trimmer, and the electrical-duplex receptacle

from the west wall. Packer also reviewed all the materials,

photographs, and documentation associated with the fire. 

Packer concluded that the trimmer was not the cause of the

fire. Packer opined that the damage sustained by the trimmer, its

components, and the charging unit resulted from exposure to heat

from an on-going external fire and that there was no indication of

electrical-fault activity with the trimmer, its components, or the

charging unit. Packer concluded that the probable cause of the

fire was the electrical-duplex receptacle, which was located on the

west wall, because, Packer opined, it exhibited signs that it

malfunctioned. After participating in the destructive examination

of the trimmer, Packer reaffirmed its conclusion that the trimmer,
4

its components, and the charging unit did not cause the fire. 

II. Analysis

A. Standard

As a starting point, Federal Rule of Evidence 702 provides,

If scientific, technical, or other specialized

knowledge will assist the trier of fact to

understand the evidence or to determine 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 . . . .

For expert testimony to be admissible, Rule 702 requires that the

testimony be based on sufficient facts or data and that the

testimony be based on reliable principles and methods that the

witness applied reliably to the facts of the case. 

Rule 702 “establishes a standard of evidentiary reliability.”

Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 590

(1993). The Court is required to ensure that expert testimony has

“reliability and relevancy” and “make certain that an expert,

whether basing testimony upon professional studies or personal

experience, employs in the courtroom the same level of intellectual

rigor that characterizes the practice of an expert in the relevant

field.” Kumho Tire Company v. Carmichael, 526 U.S. 137, 152

(1999). 

In Daubert, the Supreme Court articulated four factors that

may aid a district court in determining whether expert testimony is
5

sufficiently reliable: (1) whether an expert’s theory, technique or

conclusion can be or has been tested; (2) whether it has been

subjected to peer review and publication; (3) with respect to a

particular technique, whether there is a high known or potential

rate for error and whether there are standards controlling the

technique’s operation; and (4) whether it enjoys general acceptance

in a relevant scientific community. 509 U.S. at 592-94. “Daubert

makes clear that the factors it mentions do not constitute a

definitive checklist or test.” Kumho Tire, 526 U.S. at 150

(emphasis in original)(internal quotations and citations omitted).

A district court enjoys “considerable leeway in deciding in a

particular case how to go about determining whether particular

expert testimony is reliable.” Id. at 152. 

Expert testimony is required to have “a valid connection to

the pertinent inquiry as a precondition to admissibility . . . .

[W]here such testimony’s factual basis, data, principles, methods,

or their application are called sufficiently into question, . . .

the trial judge must determine whether the testimony has a reliable

basis in the knowledge and experience of [the relevant] discipline.” Id. at 149 (internal quotations and citations omitted).

In other words, a district court is not required “to admit opinion

evidence that is connected to existing data only by the ipse dixit

of the expert,” and “a court may conclude that there is simply too

great an analytical gap between the data and the opinion prof-
6

fered.” General Electric Company v. Joiner, 522 U.S. 136, 146

(1998); Kumho Tire, 526 U.S. at 158. 

B. Discussion

Black and Decker argues that Smith’s opinions “constitute

nothing more than conjecture or subjective belief [that] is not

grounded in the methods and procedures of science.” (Def.’s Mot.

at 3.) Black and Decker complains that Smith “did not objectively,

reliably, or scientifically evaluate or analyze the facts and data

in this case.” (Id.) Black and Decker accuses Smith of making

“assumptions instead of investigating facts or relying upon the

evidence as it existed.” (Id.) 

Black and Decker specifically complains that Smith “does not

know the amount of resistence that would be required to result in

the ignition of a fire because he has not done such calculations.”

(Def.’s Br. at 7.) Black and Decker contends that Smith “had no

evidence of a short circuit in the transformer, no evidence of a

short circuit in the [trimmer], and no evidence to suggest that the

motor was running at the time this fire ignited.” (Id.) Black and

Decker continues, “[Smith] made no determination regarding the

temperature rating of the casing of the [trimmer] . . . [or] the

temperature rating on the wiring insulation.” (Id.) And Black and

Decker contends that Smith did “not know the burn pattern or the

ignition sequence.” (Id.)
7

Black and Decker also takes issue with Smith’s opinion that

the trimmer was plugged in at the time of the fire. Smith opined

that the trimmer needed to be plugged in to cause the fire. Black

and Decker complains that Smith relied on the initial Rimkus report

to opine that the trimmer was plugged in at the time of the fire

without knowing what that report relied upon for its opinions.

(Id. at 8.) Black and Decker contends that Smith “was not

particularly concerned about shadowing on the prongs” of the

transformer despite acknowledging that he would expect to see

evidence in the form of shadowing on the prongs of the transformer

if it had indeed been plugged in when the fire occurred. (Id.)

Smith, Black and Decker contends, assumed the trimmer was plugged

in at the time of the fire instead of relying on objective

evidence. Smith acknowledged that the trimmer was found unplugged,

but, according to Black and Decker, he “speculated that the

transformer was pulled out of the electrical socket and that the

power cord came out of the [trimmer] when the [trimmer] fell at

some point during the fire.” (Id. at 9.) Black and Decker

contends that Smith did not review the testimony of Tracey Jackson

who said the trimmer was on the ground at the time of the fire, but

admitted “that such testimony would be inconsistent with his

understanding of the situation.” (Id.) Taken together, Black and

Decker argues that “Smith . . . did not objectively, reliably, or

scientifically evaluate or analyze the facts and data in this case.
8

Instead, . . . [he] made assumptions.” (Id.)

The record shows that Smith has been a licensed professional

engineer since 1988 and that he has substantial experience in

electrical systems for industrial, residential, municipal, and

federal facilities. Smith is also a board-certified diplomat in

forensic engineering and a certified fire and explosion investigator. 

Smith’s experience includes residential and commercial

building electrical distribution systems; electronic product

design, fabrication, and assembly; electrical code and building

code compliance; electrical system failure analysis; appliance and

product failures; and structural and vehicular fire and arson

investigations. He has a bachelor’s in science from Southern

Methodist University, and a masters in business administration from

the University of Dallas. He has also taken advanced courses or

training in fire dynamics, fire origin and causes, and electrical

safety requirements and procedures and others. And he is a senior

member of the National Academy of Forensic Engineers and a member

of the Institute of Electrical and Electronic Engineers, North

Texas Fire Investigators Association, and the National Association

of Fire Investigators. 

Smith participated in the potential destructive examination of

the trimmer and of the electrical duplex outlet recovered from the

scene of the fire. Prior to the destructive examination, Smith
3

 According to the NFPA 921 method, the cause of a fire is generally not

known until the end of the investigation and after the investigator has

eliminated all other theoretical causes. (Def.’s App. at 97-8.) 

4

 David Jackson testified that the trimmer was kept hanging on a hook

about four feet from the outlet on the west wall of the garage.

9

performed an X-Ray of the fire artifacts recovered from the scene.

He also reviewed the initial Rimkus report, the photographs taken

of the fire scene, and he spoke with Patrick, who conducted the

initial on-site examination. Smith also explained that it is

standard operating procedure in Rimkus for their reports and

opinions to be subject to peer review. And he explained that he

and Rimkus used the accepted NFPA 921 procedures for fire and

explosion investigations.3

 

Smith testified that he believed, based on David Jackson’s

testimony, that the trimmer was sitting on a work bench located

near the electrical outlet on the west wall. Smith said the

trimmer was plugged into the outlet at the time of the fire. Smith

admitted, though, that it was his “best guess” that the cord was

approximately six feet long and thus long enough for the trimmer to

sit on the work bench and be plugged into the electrical outlet at

the same time. He based his guess on how much of the electrical

cord from the trimmer to the transformer remained after the fire.4

Smith ruled out the electrical outlet as a cause of the fire

because he found no evidence that the fire started inside the

receptacle. He explained,

[I didn’t] see any arching on the wires[.] [I]
10

also [saw] evidence that the connections were

made by push-in means from the back; back

stabbing as it’s commonly called in the industry. When that happens, you can get a bad

connection if it’s not done correctly. I

didn’t see any indication of a bad connection

at the receptacles connectors. If you had a

bad connection with a stabbing connection and

you don’t have any evidence of arching, what

else is left that could have caused the fire

inside the receptacle. 

 

(Pls.’ App. Ex. D, 7.) Smith explained that if the electrical

outlet was the cause of the fire, he would expect to see “localized

heating on the wire,” which he said could be “very easily”

determined. (Id.) Conversely, Smith said he did see evidence of

localized heating in the trimmer “at the point where the three

wires came out of the butt . . . of the trimmer . . . .” (Id.) He

explained that “the plastic around them [the wires] burned away.”

(Id.) He said there were “obvious signs of the coating, the tin

plating on the wire, if you will, melting and resolidifying.”

(Id.) And he said there was “evidence of temperature of sufficient

degrees to ignite the plastic around it.” (Id.) Although Smith

may have failed to make any determination as to the temperature

rating on the wiring insulation, his testimony seems to indicate

such a determination may not have been necessary since he found

localized heating on the wires of a sufficient temperature to burn

away the wires’ plastic coating and melt and resolidify the tin
5

 Black and Decker would still be free to question Smith on his failure

to make a temperature-rating determination to explore, for example, whether a

short in the trimmer could produce the amount of heat necessary, or for any other

relevant purpose. But such a failure on Smith’s part, while available to impeach

his expert opinion, does not render his opinion so unreliable as to be

inadmissible under Rule 702. The Court notes that Black & Decker’s experts also

failed to make a temperature-rating determination because they concluded there

was no current flowing through the trimmer at the time of the fire. Its experts

stated,

The examination revealed that the receptacles for the

connector port for the charger unit of the . . . trimmer

were not occupied by their mating prongs. As such, the

. . . trimmer was not attached to the charger unit at

the time of [the] fire . . . . Since the . . . trimmer

was not attached to the charger unit, there was no

electrical current flowing through the connector port.

The connector port represented an open circuit

condition; and as such, no electrical current will flow

through the connector port. Plaintiff’s expert alleged

. . . that the fire was caused by “a loose, resistive

connection of the hedge trimmer battery to the charging

adapter.” A “loose, resistive connection” cannot be the

source of heat in the absence of electrical current . .

. . The electrical condition for the generation of heat

through an electrical connection is termed Joule Heat or

High Resistive Heating. Joule Heating and High

Resistive Heating require a resistence (“R”) and [an]

electrical current flow[ing] through the resistence

(“I”), and these parameters are related by the factor

I2R. With no electrical current . . ., the current, I,

is equal to zero; and the factor I2R is equal to zero.

(Def.’s App. at 78.)

 The Court also notes that Smith said that calculating the temperature rating

could only be done if certain other parameters were known. (Def.’s App. at 37.)

He explained that although the transformer rated at 340 milliamps, that did not

“mean that’s all the transformer can put out, under a short-circuit condition,

for example, or a condition where the batteries are totally discharged and,

perhaps, even faulty. It [the transformer] can put out considerably more current

than that. It’s rated at 340 milliamps for normal use . . . .” (Id.) 

11

plating.5 

The evidence also shows that the initial Rimkus report, which

Smith relied on in making his opinions, and Smith, employed the

accepted scientific method in fire investigations of eliminating

all possible causes of a fire before making a cause and origin

determination. Both reports show that the experts’ investigations

included ruling out the electrical outlet on the west wall of the
6

 Smith testified that when he examined the transformer, he found no

evidence that “it had been heated from the inside, which is what you would expect

. . . if it had been the cause of the fire.” (Pls.’ App. at Ex. D, 5.) 

12

garage, the electrical service entrance and meter, the water

heater, and the two cars parked inside the garage during the fire.

Smith also testified that he ruled out the transformer as a cause

of the fire based on testing he had done on the transformer and a

visual examination.6 When he physically examined the electrical

outlet recovered from the west wall of the Jackson’s garage, he

classified it as “unremarkable” from a causation standpoint.

(Pls.’s App. at Ex. D, 6.) He explained,

I [didn’t] see any beading on the wires . . .

. And, in fact, . . . the wires themselves

are in reasonable shape considering that they

were exposed to a fire . . . . [T]he insulation is gone off the wires, but there’s no

evidence . . . that arching occurred between

them, even though some of the wires are touching various places.

(Id.) 

Black and Decker complains that Smith did not know or

determine the ignition sequence for the fire. Smith testified,

however, that he believed the fire started in the trimmer and that

the orange plastic cover for the trimmer was the initial fuel for
7

 The evidence shows that although many items in the garage were nearly

completely burned, the trimmer, the alleged cause of the fire, remained largely

intact. Explaining how that could happen, Smith said,

We’ve talked about flame retardancy built into the

plastic [referring to the orange plastic covering to the

trimmer], which works except to the localized area, in

this case, where the fire started, and . . . up on top

here, too. This, I believe, was because of the exposure

to a continuing flame. This was caused by heat from the

resistive connection, which drove out the flame

retardancy properties that were here originally. They

were still in the rest of the body so that when the

flame was removed from here, for example, it stopped

propagating within a very short period of time.

(Pls.’ App. at D, 9.) Black and Decker’s experts opine that the relatively

preserved nature of the trimmer compared to other items in the garage could be

attributed to the fact that during the fire, insulation fell from the walls or

ceiling covering the trimmer. That insulation would have insulated the trimmer

from further exposure to the fire. While that is certainly a legitimate

competing theory, it does not render Smith’s opinion unreliable. 

13

the fire.7 He explained that he could not determine what ignited

after that because he did not know what was around the trimmer when

the fire started. But the evidence clearly shows that there could

have been numerous items located near the trimmer that could have

contributed additional fuel for the fire in the Jacksons’ garage.

It is also interesting to note that, while Smith opines that

the trimmer caused the fire, he did not render an opinion as to

whether the trimmer had a defect. Smith testified that he had not

been asked to examine the trimmer for any product defects in its

manufacture and therefore had no opinion as to whether it was

defective or not. 

After reviewing Smith’s opinion and his testimony regarding

the method he used and the analyses he conducted, and applying the

factors listed in Daubert, the Court concludes that Smith’s expert

testimony has a reliable basis in the knowledge and experience of
14

the relevant discipline and that it will assist the trier of fact

in deciding the issues in this case. The Court understands that

Smith’s opinion stands in contrast to the expert opinions offered

through Black and Decker’s experts. Nevertheless, the Court

concludes that Smith’s testimony and opinion does not fall “outside

the range where experts might reasonably differ . . . .” Kumho,

526 U.S. at 153. 

III. Conclusion

For the forgoing reasons, Black and Decker’s motion to strike

the expert opinion of the Jacksons’ expert, Lacie Smith, is DENIED.

SIGNED March 10, 2008.

____________________________

TERRY R. MEANS

UNITED STATES DISTRICT JUDGE