NO. 03-14-00131-CV

THIRD COURT OF APPEALS 

AUSTIN, TEXAS 

ZBRANEK CUSTOM HOMES, LTD. 

Appellant 

v.

JOE ALLBAUGH AND DIANE ALLBAUGH 

Appellees 

Appealed from the 419th Judicial District Court of

Travis County, Texas

__________________________________________________________________ 

SUPPLEMENTAL BRIEF OF APPELLEES 

JOE ALLBAUGH AND DIANE ALLBAUGH 

__________________________________________________________________ 

Suzanne C. Radcliff Gregory S. Hudson 

Texas Bar No. 24014420 State Bar No. 00790929 

COZEN O’CONNOR COZEN O’CONNOR

1717 Main Street, Suite 3400 One Houston Center 

Dallas, TX 75201 1221 McKinney Street, Suite 2900 

Telephone: (214) 462-3000 Houston, Texas 77010 

Facsimile: (214) 462-3299 Telephone: (832) 214-3900 

Email: scradcliff@cozen.com Facsimile: (832) 214-3905 

Email: ghudson@cozen.com

ATTORNEYS FOR APPELLEES 

ACCEPTED

03-14-00131-CV

5903223

THIRD COURT OF APPEALS

AUSTIN, TEXAS

7/1/2015 2:50:35 PM

JEFFREY D. KYLE

CLERK

 FILED IN 3rd COURT OF APPEALS AUSTIN, TEXAS 7/7/2015 9:06:00 AM JEFFREY D. KYLE Clerk
i

TABLE OF CONTENTS

Overview................................................................................................................1

Gharda USA, Inc. v. Control Solutions, Inc. .........................................................2

The Allbaughs’ Experts Proved Causation Using Nationally Recognized 

Investigation Protocols and Positive Evidence Regarding the “False 

Chimney” ...............................................................................................................4

Cause and Origin Was Determined In Accordance with Nationally 

Accepted Investigation Protocols................................................................4

All Experts Agree on the Area Where the Fire Began......................7

The Allbaughs’ Experts Properly Identified the Potential 

Causes of the Fire ..............................................................................9

Human Causes of the Fire Were Appropriately 

Eliminated .............................................................................12

Expert Testimony From an Electrical Engineer Ruled Out 

An Electrical Cause for the Fire............................................13

Expert Testimony From a Qualified Mechanical Engineer 

Eliminated a Gas Leak as a Potential Cause of the Fire .......16

Expert Testimony Demonstrated That a False Chimney Caused 

the Fire ............................................................................................18

Expert Testimony Established That a False Chimney 

Existed...................................................................................18

Two Separate Construction Defects Account for the 

Observed Gaps......................................................................20

Expert Testimony Established That the Fire Ignited the 

Combustible OSB .................................................................24

Conclusion ...........................................................................................................27
ii

TABLE OF AUTHORITIES

Page(s)

Federal Cases

Butcher v. Allstate Ins. Co.,

No. 1:06cRR423, 2009 U.S. Dist. LEXIS 13284, 2009 WL 301822 

(S.D. Miss. Feb. 5, 2009)......................................................................................4

Jackson v. Black & Decker (US), Inc.,

2008 U.S. Dist. LEXIS 123918 (N.D.Tex. 2008) ..............................................15

Russ v. Safeco,

2013 U.S. Dist. Lexis 42333 (S.D.Miss. 2013)....................................................4

Russell v. Whirlpool Corp.,

702 F.3d 450 (8th Cir. 2012) ................................................................................4

Schlesinger v. United States,

898 F. Supp. 2d 489, 2012 U.S. Dist. LEXIS 15754, 2012 WL 

407098 (E.D.N.Y. 2012).......................................................................................4

State Cases

Ford Motor Co. v. Aguiniga,

9 S.W.3d 252 (Tex. App.-- San Antonio 1999, pet. denied)..............................15

Gharda USA, Inc. and Gharda Chemicals, Ltd. v. Control Solutions, 

Inc.,

Cause No. 12-0987, --S.W.3d—(Slip Op. May 8) ...........................1, 2, 3, 27, 28

Tata v. State,

446 S.W.3d 456 (Tex.App.—Houston [1st Dist.] 2014, pet. 

refused) .................................................................................................................7

Whirlpool Corp. v. Camacho,

298 S.W.3d 631 (Tex.2009)................................................................................26

Rules

Texas Rule of Appellate Procedure 9.4(e)...............................................................30

Texas Rule of Evidence 703 ......................................................................................3
1

SUPPLEMENTAL BRIEF OF APPELLEES,

JOE AND DIANE ALLBAUGH

Overview

Appellant, Zbranek Custom Homes, filed a post-submission brief in an effort 

to re-argue evidentiary issues which both the trial court and jury heard and 

resolved against Appellant. Appellant attempts to use the Gharda1case as a 

vehicle, but the Gharda case announces no rule of law relevant to this case or the 

evidence presented.

In Gharda, a complex chemical fire case, the plaintiff’s experts 

hypothesized that the cause of the fire was the ignition of chemical fumes within a 

confined space. However, the experts could only speculate both that Gharda’s 

conduct resulted in the presence of ignitable fumes and that such fumes were 

present in sufficient volume to cause the explosion. 

In this case, the fire was caused by a “false chimney,” a gap in the area 

around a firebox which allowed heated gasses to migrate around the firebox into 

areas where combustible materials are located. “False chimneys” present a known 

hazard in fireplace construction and are specifically prescribed by the National Fire 

Protection Association, the fireplace instruction manual and the applicable 

Residential Building Code. The “false chimney” existed because Appellant, 

 

1

 Gharda USA, Inc. and Gharda Chemicals, Ltd. v. Control Solutions, Inc., Cause No. 12-0987, 

--S.W.3d—(Slip Op. May 8, 2015).
2

Zbranek Custom Homes, installed the fireplace in violation of these standards, a 

failure which Appellant admitted during examination. The Allbaughs presented 

evidence eliminating other potential causes of the fire (i.e. human error, electrical 

failure and gas leak) along with positive evidence showing both how Appellant’s 

installation methods created the false chimney and scientific evidence regarding 

ignition of combustible materials. At trial, Appellant vigorously, but 

unsuccessfully, cross-examined witnesses about these issues. 

Gharda USA, Inc. v. Control Solutions, Inc.

In Gharda, the plaintiff, Control Solutions, Inc., suffered a fire loss. Control 

Solutions alleged that chemicals (chlorpyrifos) manufactured by Gharda contained 

excessive amounts of EDC, a flammable substance. EDC is used in the production 

of chlorpyrifos, but is removed before the product is shipped such that the shipped 

product is 99% pure. Control Systems argued that “human error” allowed excess 

EDC to be present in the chlorpyrifos such that an ignition could occur. Thus, to 

prove its case, Control Systems had to prove that: (1) the chlorpyrifos was 

contaminated with EDC; (2) EDC contamination caused an exothermic reaction 

that released flammable gases; and (3) spontaneous combustion or static electricity 

ignited the vapors and caused an explosion.

Unfortunately for Control Systems, its experts could only testify that 

contamination due to “human error” during the manufacturing process was 
3

“possible” and admitted there was neither an indication of the amount of EDC 

allegedly present nor that the amount of EDC present was sufficient to cause the 

exothermic reaction which allegedly led to an explosion. As a result, the Texas 

Supreme Court rendered judgment that Control Systems take nothing, as there was 

no evidence that the conduct of Gharda led to the explosion. The Court stated that:

Each of these shortcomings on its own would be sufficient to support 

a conclusion that [Control System’s expert] lacked a reliable 

foundation to testify that Gharda Chemical manufactured drums of 

chlorpyrifos that were contaminated with EDC. Considered together, 

it is even more apparent that [expert] testimony suffers from analytical 

gaps and is “connected to existing data only by the ipse dixit of the 

expert.” This type of connection is unreliable, and is therefore not 

evidence.2

The Texas Supreme Court noted that “no rule prohibits experts from using 

other experts’ opinions to formulate new opinions based on their own expertise. In 

fact, Texas Rule of Evidence 703 and our prior cases contemplate exactly such an 

arrangement.”3 However, absent positive evidence of contamination due to the 

conduct of Gharda, there was no evidence to support an essential element of 

Control Systems’ negligence and manufacturing defect claims.4

In essence, Gharda stands for the unremarkable proposition that an expert 

cannot rely on unreliable data when expressing an opinion. As will be explained 

below, the facts and evidence in the instant case are vastly different.

 

2

 Id., at *18.

3

 Id., at *20.

4

 Id., at *23.
4

The Allbaughs’ Experts Proved Causation Using Nationally Recognized 

Investigation Protocols and Positive Evidence Regarding the “False Chimney”

Cause and Origin Was Determined In Accordance with

Nationally Accepted Investigation Protocols

Determination of the cause and origin of a fire is a common practice done in 

accordance with the standards set forth by the National Fire Protection Association 

(NFPA), a professional group of investigators whose collective knowledge and 

experience has been distilled and reduced to a usable guide. 

NFPA 921 defines the scientific method to be followed by origin and cause 

investigators.5 NFPA 921 is a nationally recognized protocol for investigation, and 

courts have specifically upheld its use in cause and origin investigations.6 The 

Allbaughs’ cause and origin expert, Mr. Michael Chaney, described the 

investigative process prescribed by NFPA 921 in the following manner: 

Q. Explain to the jury what the scientific method is?

A. It is a systematic methodology for investigating whatever 

you’re investigating. You have to recognize that there’s a 

problem—in this case there’s a fire—and you want to figure out 

 

5

 RR6, page 169, line 4 – 15.

6

 See, e.g. Russell v. Whirlpool Corp., 702 F.3d 450, 454 (8th Cir. 2012) (quoting NFPA 921 § 

1.2.1 and stating that “The NFPA is a nonprofit organization dedicated to fire prevention, and 

NFPA 921 is a document intended to 'establish guidelines and recommendations for the safe and 

systematic investigation or analysis of fire and explosion incidents.'"). See also Russ v. Safeco, 

2013 U.S. Dist. Lexis 42333, *70-72, (S.D.Miss. 2013); Schlesinger v. United States, 898 F. 

Supp. 2d 489, 2012 U.S. Dist. LEXIS 15754, 2012 WL 407098, at *15 (E.D.N.Y. 2012); Butcher 

v. Allstate Ins. Co., No. 1:06cRR423, 2009 U.S. Dist. LEXIS 13284, 2009 WL 301822, at *3 

(S.D. Miss. Feb. 5, 2009). Moreover, courts often exclude expert testimony that fails to comport 

with NFPA 921 standards when an expert explicitly references the guide in reaching his 

conclusions. See, e.g., Russell, 702 F.3d at 455; Schlesinger, 2012 U.S. Dist. LEXIS 15754, 2012 

WL 407098, at *15.
5

what the cause is, and then you want to go out to that place and 

you want to gather as much data as you can, the data about the 

fire event, the circumstances that brought an ignition source 

together, you know, with the fuel, and you want to think of all 

the possibilities in that area of origin. Could it be electrical, 

could it be plumbing, could it have been combustibles too close 

to something, could it have been a human factor involved in 

causing this fire?

So you want to gather all the data about that, and then you 

synthesize that and you think about, well, if I had that, what

would I—what would be the proof of that. So you go through a 

thought process. You gather all the data in, you massage all the 

data, and then you come up with these theories and try to 

eliminate it down to one probable cause.7

Stated differently, once the area of origin is determined, the investigator identifies 

the possible causes of the fire within that area. The investigator then separately 

examines each potential cause to determine whether that cause can be ruled in or 

ruled out as the culprit. If more than one cause cannot be eliminated, the cause of 

the fire is “undetermined.” Importantly, all the experts, independent,8plaintiff9

and defense,10 agreed that NFPA 921 defined the accepted protocol for fire cause 

and origin determinations. 

In this case, application of NFPA 921 investigative methodology showed the 

following. First, the area in which the fire began was the interstitial, or void, space 

 

7

 RR6, 171, line 20 – page 172, line 15.

8

 Fire Chief Mike Lacey testified that NFPA 921 is the guideline for investigations. RR3, page 

81, line 4 – 20. Chief Lacey used NFPA 921 to investigate cause and origin of the fire at the 

Allbaugh home. RR3, page 82, line 18 – 23. 

9

 RR6, page 169, line 4- 15. 

10

 RR10, page 127, line 12 – page 128, line 24.
6

above the fire box. All investigators, including District Fire Chief Mike Lacey, 

agreed on this area of origin.11 Second, given the area of origin, several potential 

causes could explain the fire: (1) human error; (2) the presence of an electrical 

outlet; (3) the presence of a gas pipe; and (4) the presence of a false chimney.12 An 

electrical engineer examined the outlet and wiring and concluded that no electrical 

failure accounted for the fire. A mechanical engineer examined the gas pipe and

concluded that a gas leak did not cause the fire. Third, positive evidence showing 

the “false chimney” did cause the fire was provided by the mechanical engineer, a 

construction professional and the Allbaughs’ cause and origin expert. This is 

precisely the investigation method and analysis contemplated by NFPA 921.

Appellant does not challenge directly the applicability of NFPA 921 or its 

authority as the standard for investigators. However, Appellant makes an implicit 

challenge to NFPA 921, arguing that the Allbaughs should have recreated the 

fireplace in question to test whether or not a false chimney could have allowed 

sufficiently hot gases to ignite the improperly installed OSB. NFPA 921 does not 

require such testing,

13 a fact also confirmed by Appellant’s expert, Mr. Nichols.14

 

 

11

 RR3, page 125, line 22 – page 126, line 22 (Chief Lacey); RR6, page 171, line 1 – line 10 

(Mr. Chaney); RR10, page 113, line 21 – page 114, line 17. (Mr. Nichols).

12

 As discussed infra, Appellant’s experts included a “false chimney” in the group of possible 

causes of the fire due to the well-established risks associated with false chimneys and the 

presence of gaps around the firebox which would allow heated gases to migrate into the area 

where the fire began.

13

 RR6, page 173, line 12 – 16.

14

 RR10, page 127, line 12 – page 128, line 24.
7

Were the court to accept Appellant’s challenge, the Court would in effect re-write 

the national protocol for cause and origin investigations to require recreation 

testing when the collective experts in the field have agreed that such testing is not 

required and thereby potentially invalidate thousands of investigations which 

otherwise complied with NFPA 921. NFPA 921 investigations are used in a 

variety of contexts, including arson investigations. Thus, requiring re-creation 

testing could, among other consequences, potentially invalidate the testimony used 

by courts to convict arsonists of criminal activity.15

All Experts Agree on the Area Where the Fire Began

Under NFPA 921, the first step in an investigation requires an investigator to 

identify the area in which the fire began. Here, all experts agreed that the fire 

began in the void space above the firebox.16 The investigating fire department 

district chief, Mr. Mike Lacey, prepared a report which was introduced as Exhibit 

6:

17

 

15

 For instance, Fire Chief Mike Lacey testified that he followed NFPA 921 when investigating 

potential arson claims. RR3, page 81, line 21 – page 82, line 10. For a case law example of 

NFPA 921 being used to support an arson conviction, see Tata v. State, 446 S.W.3d 456, 465 

(Tex.App.—Houston [1st Dist.] 2014, pet. refused).

16

 RR6, page 202, line 25 – page 203, line 22; page 203, line 9 – page 205, line 9. (Mr. Chaney); 

RR10, page 113, line 21 – page 114, line 17 (Mr. Nichols).

17

 RR15, pages 18-82. Appellant did not challenge the training or expertise of Chief Lacy to 

testify as an expert regarding fire investigations or his conclusions about the fire cause and 

origin. RR3, page 78, line 4 – page 81, line 3. Among other training and experience, Mr. Lacey 

is a certified fire investigator and has been performing fire origin investigations since 2002. He 

also is a member of the International Association of Fire Marshalls and has received training 

from that organization. Chief Lacey testified that NFPA 921 was the guideline for fire 
8

Using my training and experience in reading fire patterns and burn 

indictors, I have concluded that this fire started in the combustible 

void space around the exterior attached fireplace. Based on this 

information, the interviews conducted, and not finding any other 

sources of ignition, I have also concluded that this fire is accidental in 

nature and caused by a fire in the fireplace igniting combustible 

materials located within the void space the fire box was recessed 

into.18

Chief Lacey supported this finding in testimony by showing the jury numerous 

photos of the fire scene which documented the burn patterns present and how the 

fire spread from the area around the outside fireplace, up into the attic of the 

Allbaughs’ home and then into the interior of the home.19

Chief Lacey also noted an important abnormality20 in the exterior fireplace 

which he observed during his investigation; namely a quarter inch gap which ran 

across the entire top of the fire box and also along its sides.21 Chief Lacey also 

observed the presence of combustible materials in the gap space.22 Although Chief 

Lacey did not render a conclusion about the cause and origin of the fire, as his job 

was simply to rule out arson as a cause, Chief Lacey testified as follows:

Q. So tell us, after you did this—took all your photos and looked 

inside the firebox itself, did—what did you do next?

 

examinations and that he followed NFPA 921 in making his investigation. RR3, page 81, line 4 

– page 82, line 20.

18

 RR15, page 42.

19

 RR3, page 89, line 13 – page 107, line 23; page 115, line 3 – 126, line 22.

20

 RR3, page 122, line 17 – 22.

21

 RR3, page 123, line 14 – page 124, line 22.

22

 RR3, page 120, line 8 – 21.
9

A. At that point, I made some conclusions. I looked at the fire 

patterns. I recall the witness statements that I heard about that 

they had been burning the fire in the firebox since about 6:00 

p.m. And around the incident, at approximately midnight, there 

was a pretty long period of time the fire was occurring inside 

that firebox.

The fact that – that we observed when I looked over the wall 

into the crevice--- the – basically the void space, there was a 

heavy consumption of wood material, the framing of the void 

space behind the firebox. And so my conclusion that I made 

was that the fire, had progressed out of that firebox into that 

void space, which then matched the witness statements and the 

engine crew’s response that the fire was inside that void space 

behind the firebox and progressed up into the attic area and then 

progressed into the house. And that matched all the fire 

patterns that I had observed throughout the rest of the house.

Q. Did you conclude that the fire in the firebox escaped the firebox 

in some way?

A. That was my conclusion, yes, ma’am.23

Chief Lacey also testified that the burning of oriented strand board (OSB) found in 

the void space around the firebox would account for the colored burn patterns 

observed in those areas.24 

In its post-trial brief, Appellant argues that the Allbaughs’ experts assumed 

an area of origin of the fire. Simply, this assertion is not true.

The Allbaughs’ Experts Properly Identified the Potential Causes of the Fire

After determining the area of origin of a fire, NFPA 921 requires that the 

potential causes of the fire be identified so that each can be separately examined. 

 

23

 RR3, 125, line 22 - 126, line 22.

24

 RR3, 181, line 21 – 182, line 8.
10

The Allbaughs’ cause and origin expert, Mr. Mike Chaney, described the process 

and his conclusion as follows:

Q. All right. And did you come up with the potential ignition 

sources within the area of origin?

A. Yes. 

Q. Okay. Can you tell us what the potential ignition sources are?

A. Well, there’s a fireplace, so the first thing I’m considering is 

human factors.

Q. Okay.

A. What did the humans do.

Q. All right. Are there other potential ignition sources?

A. Yes. In this area, there was an electrical circuit, and in the 

general area, there’s a third thing, which was plumbing, which 

is the gas. That’s really a fuel source. It’s not the ignition 

source, but it’s related.

Q. Okay.

A. And then four would be combustibles. Are there combustibles 

in this area where they should be, are there some where they 

should not be.25

The Allbaughs’ experts included placement of combustibles as a possible 

cause based on the well-known risks associated with false chimneys. Specifically, 

the fireplace manual warns against allowing combustible material within 8 inches 

 

25

 RR6, page 177, line 8 – page 178, line 2.
11

of the firebox due to the risk of ignition.26 Additionally, the firebox itself presents 

a label instructing installers to allow an 8 inch clearance for combustible 

material.27 The installation instructions also contain express warnings regarding 

the risks associated with a failure to seal all joints with a heat resistant mortar, 

noting that a failure to seal the joints “will create” a false chimney.28 Another 

section of the NFPA, section 211, also instructs that combustible material be at 

least 8 inches from a firebox.29 Finally, the applicable building codes also require 

at least 2 to 8 inches clearance between the firebox and combustible materials.30 

These required clearances are the result of testing performed by the fireplace 

manufacturer and by Underwriters Laboratory.31 There is no dispute in this case—

the fireplace installed by Appellant did not allow the required clearance by placing 

combustible OSB within an inch of the firebox. Appellant admitted:

Q. All right. Did you comply—did Zbranek Custom Homes—

y’all approved the OSB within the eight inches of this little red 

zone here that would be in violation of NFPA 211. Correct?

A. We approved it, yes.

Q. And it violates the NFPA 211, doesn’t it.

 

26

 Exhibit 15, RR15, page 264 – 312 (specifically, page 272 states “The Standard fireplace and 

DM 54 chimney system is tested and listed for installation with “clearance to combustibles” as 

follows: . . . all combustible sheathing materials must be held eight inches (8”) away from the 

sides of the firebox opening and eight inches (8”) above the top of the firebox opening.”

27

 Exhibit 15, page 269.

28

 Exhibit 15, RR15, page 285. Emphasis added.

29

 RR7, page 19, line 19 – page 93, line 9.

30

 RR7, page 91, line 7 – line 20.

31

 RR5, page 166, line 17 – page 168, line 6.
12

A. I guess.

Q. Well, you don’t know one way or another. Is that what 

you’re—

A. No. I think that there are different interpretations. And—and 

put literally, the way you’ve asked the question, yes.

Q. So literally, you violated the NFPA 211. Correct?

A. Yes.

Q. Not only on the top of the firebox, but on sides, too. Is that 

correct?

A. Yes.

Q. And you violated—the construction violated on the sides of the 

firebox the International Residential Code, too, didn’t it?

A. Yes.

Q. And it violated the installation manuals, didn’t it?

A. Yes.32

With the potential causes of the fire and the area of origin identified, Mr. Chaney 

then followed the protocols of NFPA 921 to examine each potential cause.

Human Causes of the Fire Were Appropriately Eliminated

As noted above, Chief Lacey eliminated the potential for an intentional fire 

(i.e. arson) during his investigation. Mr. Chaney also eliminated human causes as 

being the source of the fire based on interviews with the Allbaughs regarding how 

and when the fireplace was used, when the gas log was turned off, the absence of 

 

32

 RR7, page 93, line 3 – page 94, line 7.
13

ignitable liquids (i.e. lighter fluids), use of a fire screen, and related data.33 

Appellant did not challenge the elimination of human factors as a potential cause 

of fire at trial and does not raise the issue on appeal.

Expert Testimony From an Electrical Engineer

Ruled Out An Electrical Cause for the Fire

Mr. Chaney did not believe electrical factors played a role in the fire because 

there was no evidence of anything being plugged in to the outlet and therefore no 

electrical load would flow to the outlet.34 Mr. Chaney also noted the unlikely 

timing for an electrical fire, as the electrical fire would have to start at the same 

time the fireplace was first used, despite having been in place for 18 months 

previously.35 As a new home, Mr. Chaney believed that an electrical fire would be 

prevented by a ground fault interrupt, which would stop the flow of electricity to 

the outlet before any fire could begin.36 Mr. Chaney also noted that a fire 

originating at or around the electrical outlet would present a different burn pattern 

than the pattern present at the Allbaughs’ home. Mr. Chaney showed the jury 

photographs of the fire scene, demonstrating how the burn patterns did not emanate 

from in or around the electrical outlet and describing what the burn patterns would 

look like had the fire emanated from the electrical outlet.37 Finally, Mr. Chaney 

 

33

 RR6, page 178, line 6 – page 180, line 25.

34

 RR6, page 181, line 4 – 9.

35

 RR6, page 181, line 10 – 13.

36

 RR6, page 181, line 19 – page 182, line 11.

37

 RR6, page 182, line 12 – page 188, line 23. 
14

pointed out that a fire originating at the electrical wiring would damage the inside 

of the electrical plate, damage not shown in the collected physical evidence.38

Despite this conclusive evidence, Mr. Chaney also looked to the opinions of 

Mr. Mark Goodson, a licensed professional engineer.39 Mr. Goodson excluded an 

electrical cause of fire originating at the outlet above the exterior fireplace based 

on several factors: (1) the outlet in question was protected by a ground fault 

interrupt, which would stop the flow of electricity to the outlet before there was 

sufficient power to start a fire;40 (2) there was no evidence of electrical shorting;41

(3) witness interviews indicated that nothing was plugged into the outlet, which 

would render any current insufficient to start a fire;42 and (4) there was no evidence 

of any electrical arcing.43

Appellant and third-party defendant unsuccessfully attempted to crossexamine Mr. Goodson, arguing that it was theoretically possible for accidental 

 

38

 RR6, page 189, line 3 – 20.

39

 Appellant did not challenge Mr. Goodson’s qualifications as an expert on electrical issues. 

However, the Court can take note of his extensive qualifications in the field of electrical 

engineering. Mr. Goodson has a bachelor of science from Texas A&M and is a licensed 

engineer in 13 states. In the 29 years he has been licensed, Mr. Goodson has investigated over 

3,000 electrical fires. He has worked for the State Fire Marshall’s Office and as part of the 

National Response Team for the Bureau of Alcohol, Tobacco and Firearms. Mr. Goodson is the 

author of 35 papers on fire and fire investigation. Important to this case, he also possesses 

significant experience in dealing with ground fault interrupters. See, RR3, page 194, line 7 –

197, line 20.

40

 RR3, page 201, line 11 – page 204, line 8.

41

 RR3, page 204, line 15 – page 205, line 11.

42

 RR3, page 206, line 9 – page 207, line 9.

43

 RR3, page 208, line 17 – page 209, line 21.
15

resistance to be on the electrical line.

44

 Such resistance could come in the form of 

an insect nest being built in balance over the electrical lines or a Christmas wreath 

with prongs sticking into the outlet. Appellant never attempted to argue or show 

that either scenario was sufficiently probable to require analysis, and never 

attempted to show that either scenario, if true, would be even remotely plausible 

given the absence of arcing, scoring or other indicia of a fire originating at or near 

the outlet.45 Mr. Goodson reaffirmed his opinion that such factors did not change 

his opinion as to whether or not there was an electrical cause for the fire.46

Simply, Appellant attempted to convince the jury that Mr. Goodson’s 

opinion was flawed based on two hypothetical and highly unlikely occurrences for 

which there was no positive evidence and all secondary evidence was inconsistent. 

Unsurprisingly, the jury was not persuaded by this line of questioning. Similarly, 

in its brief, Appellant argues that Mr. Goodson failed to rule out an electrical cause 

of fire. However, this is not the legal standard and mischaracterizes the evidence.

 

44

 RR4, page 62, line 23 – page 63, line 4. 

45

 Although an expert needs to exclude potential causes of an event, the expert does not need to 

exclude every single hypothetically possible cause of an event; only those potential causes which 

have a reasonable likelihood of occurring. See, Ford Motor Co. v. Aguiniga, 9 S.W.3d 252, 264 

(Tex. App.-- San Antonio 1999, pet. denied). In addressing the opponent's argument that the trial 

court erred in admitting expert testimony because the experts failed to rule out other plausible 

causes of the engine failure, the court shifted the burden back to the manufacturer stating, “Ford 

did not develop an argument... that another system failure [other than the fuel pump relay] 

caused the engine to stall or the brakes and steering to fail.” Id. Thus, the court noted that before 

an expert will be required to rule out other causes, the opponent must demonstrate the existence 

of other plausible causes. Id. Importantly, Appellant’s experts do not testify, must less justify, 

that either scenario is in any way plausible.

46

 RR4, page 75, line 17 – page 76, line 9. A similar challenge was rejected in Jackson v. Black 

& Decker (US), Inc., 2008 U.S. Dist. LEXIS 123918, *19 (N.D.Tex. 2008).
16

Mr. Goodson acted as a qualified expert and appropriately excluded an 

electrical fire source. Mr. Chaney was entitled to rely on his findings and did so 

when excluding this potential cause of the fire.

47

Expert Testimony From a Qualified Mechanical Engineer

Eliminated a Gas Leak as a Potential Cause of the Fire

As noted above, the presence of a gas pipe near the area of fire origin 

required that the possibility of a gas fire be examined. In fact, during the post-fire 

testing, the gas line was shown to have a small leak. 

Mr. Chaney then discussed whether plumbing or gas could account for the 

fire. Mr. Chaney testified a very small gas leak existed in the gas line leading to 

the fireplace, but that the size of the leak would not produce sufficient gas to ignite, 

as the gas would dissipate.48 Mr. Chaney also discounted a gas ignition based on 

the lack of an audible explosion reported by the Allbaughs and the absence of any 

gas smell.49 Additionally, Mr. Chaney noted that the gas line had been pressure 

tested before the fireplace was used and was found to have no leaks.50 Mr. Chaney 

also noted the absence of burn patterns near the gas line or in the area where gas 

 

47

 RR6, page 190, line 19 – 21.

48

 RR6, page 191, line 4 – 10.

49

 RR6, page 191, line 11- 14.

50

 RR6, page 191, line 14 – 21.
17

would be expected to migrate.51 Based on this investigation, Mr. Chaney stated 

that he was able to eliminate gas as a potential cause of the fire.52 

Mr. Chaney also looked to the opinions of mechanical engineer, Mr. Paul 

Carper, to exclude a gas leak as the cause of the fire.53 Mr. Carper examined the 

gas line because it was in the area of fire origin.54 To inspect the gas line, gas at a 

pressure of twenty times the norm was fed through the line to see if any observable 

leak was present.55 However, the size of the leak was minimal. To rule out a prefire gas leak as a cause of the accident, Mr. Carper noted that a pre-fire inspection 

of the gas line showed no indication of a leak.56 The fireplace had not been used 

between the time of the inspection and the date of the fire.57 Mr. Carper also noted 

the absence of any reports of a gas smell or a gas explosion noise, which would be 

expected if a gas leak ignited.58 Further, based on the size of the leak, Mr. Carper 

noted that any escaping gas would dissipate through the fireplace flue.59 Rather 

than pre-date the fire, Mr. Carper testified that it was probable that the leak was 

 

51

 RR6, page 192, line 16 – page 193, line 5

52

 RR6, page 192, line 6 – 8.

53

 As with Mr. Chaney, Appellant did not challenge Mr. Carper’s qualifications to opine as an 

expert. In brief, Mr. Carper holds a bachelor of science in mechanical engineering from Texas 

A&M. He has been a licensed professional engineer since 1993 and holds a P.E. license in five 

states. He has acted as a forensic consultant since 1998. As part of this training, Mr. Carper has 

extensive training regarding gas lines and gas appliances. He also has experience and training in 

materials analysis. RR5, page 141, line 17 – page 146, line 15.

54

 RR5, page 147, line 18 – 25.

55

 RR5, page 148, line 5 – page 149, line 11.

56

 RR5, page 155, line 8 – 25.

57

 RR5, page 156, line 1 – 15.

58

 RR5, page 157, line 2 – 6.

59

 RR5, page 156, line 16 – page 157, line 1.
18

caused during the fire, when the heat caused the interior seal of the gas line to fail, 

which would be expected as the fire in the firebox would be approximately 1880 

degrees Fahrenheit.60 For these reasons, Mr. Carper testified that he was able to 

eliminate a gas leak as a possible cause of the fire.61

Given this investigation and testimony, Mr. Chaney was entitled to rely on 

Mr. Carper’s opinion that a gas leak did not cause the fire in question.

Expert Testimony Demonstrated That a False Chimney Caused the Fire

The Allbaughs’ experts did not rely on simple process of elimination to 

conclude that a false chimney caused the OSB to ignite. Instead, the Allbaughs’

experts followed the nationally recognized investigation methodology of NFPA 

921 when they examined the physical evidence present at the fire scene and relied 

on published scientific data and studies to reach their conclusions. 

Expert Testimony Established That a False Chimney Existed

Consistent with NFPA 921, Mr. Chaney investigated whether or not a false 

chimney exposing combustible material to heat existed. Mr. Chaney visited the 

fire scene on the day after the fire. On investigation, he found gaps surrounding

the stone fireplace:

 

60

 RR5, page 154, line 14 – page 155, line 7. Mr. Chaney echoed this conclusion, testifying that 

the leak was the likely result of the fire and the normal expansion/contraction of metals in the gas 

line. RR7, page 76, line 21 – page 77, line 2. 

61

 RR5, page 159, line 1 – page 160, line 9.
19

Q. Before any removal of stone, were there any gaps in the front 

facing of the fireplace?

A. Yes.

Q. All right. Where did you see the gaps?

A. Gaps, gaps, everywhere gaps. No, there was gaps. There was 

gaps at the sidewall, there was gaps at the opening. So if you 

were to put your head down in the opening of the fireplace and 

look upward, you’d see a gap where the stucco came over and 

was at its edge. If you’re looking at it from that perspective, the 

outside of the stucco, the finished part, is out here (indicating) 

and the metal lath is in here and the fireplace is over here. So

when you’re looking at that, in here there was a gap. And on 

the side walls where the stucco meets the fireplace, there was a 

gap on both sides.

*****

Q. In your experience as a origin and cause investigator, are there 

supposed to be gaps around the fireplace opening?

A. There should not be any.

Q. Why not?

A. Hot gasses or radiant heat, combination of the heat transfer 

mechanisms can get in through a gap and if there’s a 

combustible too close to that opening, it can begin a glowing 

fire or smoldering fire and then spread the fire.62

Mr. Chaney also showed the jury photos of the fireplace which identified the 

location of the gaps in question.63 Mr. Chaney then testified about the burn 

patterns noted on the fireplace and specifically in the space behind the “gap” areas, 

 

62

 RR6, page 199, line 5 – page 200, line 16.

63

 RR6, page 200, line 17 – page 202, line 8.
20

noting that the burn patterns showed those areas as the point of origin for the fire.64 

Mr. Chaney showed the jury photographs of the discolored stucco, further 

demonstrating the area of fire origin.65 

Appellant does not dispute the existence of post-fire gaps surrounding the 

fire box. Instead, Appellant argues that there is no evidence these gaps existed 

prior to the fire. As the below evidence shows, Appellant’s assertion ignores the 

evidence at trial.

Two Separate Construction Defects Account for the Observed Gaps

Gaps between the firebox and the surrounding stucco were the result of two 

construction defects by Appellant. First, rather than follow the correct installation 

methods, Appellant attempted to wrap the stucco around the combustible OSB, but 

did so without providing support for the stucco. Second, Appellant failed to apply 

a fire-resistant mortar at the various joints around the firebox.

Mr. Mark Stanford, a construction professional,66 testified about the 

defective stucco installation. Specifically, Mr. Stanford noted that both the 

International Residential Building Code and the NFPA both discuss the clearances 

 

64

 RR6, page 202, line 25 – page 203, line 22; page 203, line 9 – page 205, line 9.

65

 RR6, page 210, line 25 – page 212, line 5.

66

 Appellant did not contest Mr. Stanford’s qualifications to discuss construction practices at 

trial. Mr. Stanford has been in the construction business since 1961. He owns two companies, 

one which is a construction company and the other which provides consulting services, including 

forensic analysis. He has specific training in air pathways around fireplaces and has supervised 

the installation and repair of fireplaces. Mr. Stanford was familiar with both the installation 

manual for the Allbaughs’ fireplace and with the applicable building codes for the Allbaughs’ 

home. RR8, page 151, line 9 – 161, line 11.
21

to keep combustible materials like OSB away from fireplace openings.67 Both 

documents require that any combustible material be at least 8 inches away from the 

firebox on all sides.68 The NFPA and fireplace installation manual also require that 

all joints be sealed using a fire-resistant mortar.69

Mr. Stanford testified that the reason for these clearances was avoidance of 

fire due to a “false chimney.” Mr. Stanford read to the jury from the installation 

manual the following warning about this risk:

Important. Failure to seal any gaps between the front face of the 

standard fireplace and the back of the noncombustible finish facing 

material will create what is known as a false chimney. A false 

chimney in this case is the narrow gap mentioned above between the 

back of the non-combustible facing material at the top of the firebox 

opening and the rough front of the standard smoke done. If left 

unfilled, this gap creates a false chimney which can cause a fire 

hazard by drawing considerable heat out of the firebox and into the 

space behind the noncombustible finish facing, and from there up into 

the wall cavity behind the drywall or other sheathing material that 

houses a standard fireplace.70

Mr. Stanford went on to testify about the stucco installation at the fireplace. 

In addition to improperly placing combustible OSB too close to the firebox,71

Appellant also used improper stucco installation methods. Specifically, the stucco 

was applied at the firebox in a manner which was not stable because the wire 

corner bead was cut and no metal lathe was used beneath it. As a result, the stucco 

 

67

 RR8, page 161, line 12 – 14; 

68

 RR8, page 162, line 4 – page 165, line 24.

69

 RR8, page 166, line 24 – page 169, line 10.

70

 RR8, page 170, line 2 – 15. Exhibit 15.

71

 RR8, page 174, line 16 – page 175, line 14.
22

assembly was unstable and unable to create an airtight seal.72 More important, the 

improper stucco installation would leave a narrow gap behind that installation.73 

Further, the improper installation placed several dissimilar materials next to one 

another, but, absent bonding, allowed for narrow pathways through which air and 

heat could migrate.74 To prevent such migration, Mr. Stanford testified that a heat 

resistant mortar should have been applied at the joint. However, his inspection 

showed no such mortar present.75 Mr. Stanford’s opinions were echoed by Mr. Joe 

Stevens, the manufacturer representative for the fireplace. Mr. Stevens testified 

that when he inspected the fireplace that the manufacturer required clearances for 

combustibles had not been maintained.76 Additionally, Mr. Stevens also noted the 

gaps around the fireplace and that there was no evidence of proper mortar.77 

Finally, in the early stages of the fire, one witness, Mr. David Birdwell, testified 

that he went over to the fireplace, looked up and saw the fire burning through one 

of the gaps:

Q. So what did you do next did? Did anyone get waken up, or did 

you do more to the fireplace?

 

72

 RR8, page 175, line 15 – page 181, line 20. Mr. Stanford also demonstrated the improper 

stucco assembly in court using material gather from the fire scene and photographs taken 

showing the assembly.

73

 RR8, page 182, line 3 – 186, line 17.

74

 RR8, page 182, line 7 – 15, page 184, line 11.

75

 RR8, page 186, line 18 – page 188, line 17.

76

 RR8, page 70, line 3 – 14.

77

 RR8, page 70, line 15 – page 71, line 15.
23

A. Well, I—I took a closer look at the fireplace. I actually sat 

down on the—the stone slab that was in front of the fireplace 

and just took a closer look at the inside of the fireplace.

And at that point, I saw a gap between the stone facing of the 

fireplace and the actual firebox. And within that gap, there 

were—there was a glowing debris. So something not in the 

firebox itself was on fire. And as I—I actually stuck my head 

into the fireplace to do this, that’s how little heat there was left. 

I kind of blew into that gap, looking up. And there was 

glowing debris falling out. It kind of looked like—like—I 

don’t know, like something fibrous, like glowing asbestos or—

or something that had adhesive in it, like burnt particle board or 

something like that.78 

At trial, and in its brief, Appellant contends that “no evidence shows that a 

false chimney existed before the fire.” Appellant’s evidence consists of the denial 

of Mr. Zbranek and other installers, which the jury was entitled to discount as 

being that of an interested party. Such a disbelief was quite reasonable, given that 

Mr. Zbranek testified that he could not recall using the required fire-resistant 

mortar to seal the fireplace79 and also had no explanation for how the post-fire gaps 

occurred.80 Indeed, Mr. Zbranek testified that he was not aware that fire-resistant 

mortar needed to be used in the installation of the fireplace.81 Mr. Zbranek also 

could not recall why he determined a non-approved installation was appropriate82

 

78

 RR3, page 46, line 24 – page 47, line 16.

79

 RR7, page 113, line 22- page 114, line 2; page 128, line 5 – 14.

80

 RR7, page 127, line 25 – page 128, line 4; page 128, line 14 – 17.

81

 RR8, page 45, line 11 – 21.

82

 RR7, page 123, line 12 – page 124, line 6.
24

and admitted he would not approve a similar construction in the future.83 

However, as noted above, positive evidence of a pre-existing gap came from Mr. 

Birdwell, who observed the fire through the gap and from Mr. Stanford, who 

testified that the defective stucco installation and failure to seal the fireplace joints 

left numerous gaps through which air and heat could travel.

Expert Testimony Established That the Fire Ignited the Combustible OSB

As noted above, the risks associated with a “false chimney” are well-known 

and are warned against in the product manual, the NFPA and the applicable 

building codes. The reason for this risk, as testified to by Mr. Chaney and Mr. 

Carper, is that combustible materials ignite at temperatures vastly lower that those 

produced by a wood burning fire. Mr. Chaney testified, based on applicable 

MSDS sheets, that the ignition temperature for OSB is 400 degrees Fahrenheit,

84

while the temperature of a burning wood fire is 1880 degrees Fahrenheit.

85

Mr. Carper also testified regarding these issues. Mr. Carper testified that the 

fireplace was tested and certified by Underwriters Laboratory, meaning that it had 

been tested for safety concerns, such as the required combustible setback of 8 

 

83

 RR7, page 136, line 9 – line 18.

84

 RR6, page 203, line 23 – page 204, line 8.

85

 Mr. Carper also echoed this figure, citing to the table in NFPA 921 regarding temperatures 

associated with a wood burning fire. Mr. Carper also reviewed the MSDS information for OSB 

materials. RR6, page 53, line 2 – line 11. This information was further substantiated by data 

published by the United States Consumer Product Safety Commission. RR6, page 56, line 5 –

line 57, line 6.
25

inches.86 Mr. Carper also testified that the NFPA identifies the temperature of a 

wood fire as 1880 degrees Fahrenheit.

87

 Mr. Carper testified that the temperature 

differential was important, because it would cause the OSB to auto ignite, an 

occurrence which happens when the temperature surrounding the OSB reaches a 

certain level.88 Mr. Carper also referred to the scientific studies of Vytenis 

Babrauskas, specifically The Ignition Handbook, which detailed the temperatures 

at which combustible material would auto-ignite.89 For this reason, the risks 

associated with certain combustible materials in proximity to a firebox are wellknown and documented in NFPA 921.90

 Additional testimony on this point came 

from the fireplace manufacturer representative, Mr. Joe Stephens, who testified 

that he informed Appellant about the need for clearance for combustible 

materials91 and that it was his routine practice to leave the installation manual 

which contained the warnings noted above at the job site.92

At trial, Appellant vigorously cross-examined Mr. Chaney and Mr. Carper 

about these issues. Specifically, Appellant argued (and continues to argue) that 

Mr. Chaney should have reconstructed the fireplace in order to test whether or not 

the OSB would catch fire. Mr. Chaney testified that such testing was not required 

 

86

 RR5, page 166, line 17 – page 168, line 6.

87

 RR6, page 50, line 19 – page 52, line 16.

88

 RR6, page 53, line 12 – page 54, line 8.

89

 RR6, page 54, line 9 – page 56, line 4. 

90

 RR6, page 58, line 14 – 16.

91

 RR8, page 60, line 1 – 22.

92

 RR8, page 67, line 22 – page 68, line 17.
26

by NFPA 921.

93

 Texas law also does not hold that testing is always required to 

support an expert’s opinion. Whirlpool Corp. v. Camacho, 298 S.W.3d 631, 642 

(Tex.2009). Further, Mr. Chaney pointed out that such testing would not be 

meaningful unless replicated many times.94 However, such testing had been done 

by the fireplace manufacturer, Mr. Babrauskas and the NFPA, which is what 

generated the 8 inch clearance requirement. The following exchange occurred 

during cross-examination:

Q. Is one of the factors here, the reason you didn’t do this testing, 

is that you didn’t want to know the result?

A. No.

Q. Did you have any concern that this test would not—if you had 

done it, this test would not have supported your hypothesis in 

this case?

A. No.

Q. You’re—you’re just confident about that?

A. I know about tests that have been done on a similar fireplace 

that started a fire that he exposed wood right at the opening and, 

hence, the label was developed and the instructions in the 

manual about keeping wood up above eight inches from the 

opening of the fireplace.

*****

 

93

 RR6, page 173, lines 12 – 16. Appellant’s expert, Mr. Nichols confirmed that NFPA 921 

does not require testing as well. RR10, page 127, line 12 – page 128, line 24.

94

 RR7, page 20, line 13 – page 23, line 6. Appellant argues that testing gives better data than 

yielded by the Allbaughs’ experts. Assuming that an accurate test could be performed, the 

presence of a “superior” test does not invalidate other methods. 
27

Q. Yeah, if you had done that, you’re absolutely certain that the 

results would have supported your reverse cognitive analysis?

A. If you absolutely replicated the fireplace at the Allbaughs’

house on December 24, 2008, you get the same fire. That’s my 

opinion.

Q. Okay. As—any you have that to a science—in your opinion, is 

that a scientific certitude?

A. I think it—it is a scientific probability. That is exactly what 

would have happened.95

Simply put, Appellant tried to make this argument before the trial court and the 

jury. The argument failed then and fails now. More than adequate testimony 

regarding the existence of a false chimney and the mechanism for the fire was 

presented to the jury.

Conclusion

Despite Appellant’s claim, the Gharda case does not impact the issues 

present here, as there are many significant dissimilarities:

GHARDA ALLBAUGH

Experts hypothesized that human error 

in the manufacturing process possibly 

led to the presence of excess EDC.

Positive testimony demonstrated that 

Appellant improperly installed the 

fireplace and failed to seal gaps with 

fire-resistant mortar, thereby creating 

the false chimney.

Experts hypothesized that excess EDC 

could cause an exothermic reaction.

False chimneys are a known hazard in 

fireplace construction and are 

specifically warned against by the 

 

95

 RR7, page 24, line 23 – page 27, line 5.
28

installation manuals, as well as various 

building codes and the NFPA.

Experts hypothesized that EDC could 

cause an exothermic reaction.

Published data from nationally relied 

upon sources showed that combustible 

materials will auto-ignite at the 

temperatures generated by a wood fire.

The area in which the fire originated 

was unknown.

All experts agreed the fire began in the 

interstitial space above the firebox 

where the improperly place 

combustible OSB was located.

Not only does the Gharda case significantly differ from the facts present 

herein, but Appellant’s challenge to the methodology used by the Allbaughs’

experts would, if accepted, undercut the examination process used and approved by 

fire experts every day. Moreover, such acceptance could have far reaching 

implications, as investigations done using the NFPA 921 methodology are used in 

many proceedings, including criminal trials.

Appellant’s point of error should be overruled and the judgment of the trial 

court and jury should be upheld.
29

Respectfully submitted,

COZEN O’CONNOR

BY: /s/ Gregory S. Hudson

Gregory S. Hudson

State Bar No. 00790929

COZEN O’CONNOR

One Houston Center

1221 McKinney Street, Suite 2900

Houston, Texas 77010

Telephone: (832) 214-3900

Facsimile: (832) 214-3905

Email: ghudson@cozen.com

Suzanne C. Radcliff

Texas Bar No. 24014420

COZEN O’CONNOR

1717 Main Street, Suite 3400

Dallas, TX 75201

Telephone: (214) 462-3000

Facsimile: (214) 462-3299

Email: acook@cozen.com

Email: scradcliff@cozen.com

ATTORNEYS FOR APPELLEES
30

CERTIFICATE OF COMPLIANCE

This document complies with the typeface requirements of Texas Rule of 

Appellate Procedure 9.4(e) because it has been prepared in a conventional typeface 

no smaller that 14-point for text and 12-point for footnotes. This document 

contains 7663 words.

By: /s/ Gregory S. Hudson

Texas State Bar No. 00790929
31

CERTIFICATE OF SERVICE

I do hereby certify that a true and correct copy of this document was served 

on the parties via Electronic Court Filing on this 30th day of June, 2015.

David E. Chamberlain

Tim Poteet

Erin Westendorf-Boyd

Chamberlain McHaney

301 Congress Avenue, 21st Floor

Austin, Texas 78701

Telephone: (512) 474-9124

Facsimile: (512) 474-8582

Emails: dchamberlain@chmc-law.com

tpoteet@chmc-law.com

ewestendorf@chmc-law. com

Attorneys for Defendant Zbranek Custom Homes, Ltd.

By: /s/ Gregory S. Hudson

Texas State Bar No. 00790929

LEGAL\23314524\3