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IN THE UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF FLORIDA

PANAMA CITY DIVISION

UNITED FIRE AND CASUALTY

COMPANY, a/s/o Robert and Theresa

Corral, 

Plaintiff,

v. CASE NO. 5:10-cv-199-RS-EMT

WHIRLPOOL CORPORATION,

a Delaware corporation, 

Defendant.

_________________________________________/

ORDER

Before me is Defendant‟s motion to exclude the expert testimony of 

Raymond Arms and Dr. Kendall Clarke (Doc. 24) and Plaintiff‟s memorandum in 

opposition (Doc. 28). Defendant claims that these witnesses do not qualify as 

experts under the Daubert standard.

Federal Rules provide that witnesses may testify as experts if “(1) the 

testimony is based upon sufficient facts or data, (2) the testimony is the product of 

reliable principles and methods, and (3) the witness has applied the principles and 

methods reliably to the facts of the case.” Fed. R. Evid. 702. Daubert v. Merrell 

Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993), put forth a two-pronged analysis 

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used to determine the admissibility of the proffered expert testimony on issues 

under Rule 702. 

First, the expert testimony must be reliable, so that it must be “scientific,” 

meaning grounded in the methods and procedures of science, and must constitute 

“knowledge,” meaning something more than subjective belief or unsupported 

assumptions. McDowell v. Brown, 392 F.3d 1283, 1298-99 (11th Cir. 2004) 

(citing Daubert, 509 U.S. at 590).

Daubert's reliability prong sets out four guideposts that a district court may 

consider in assessing the reliability of the expert testimony, which include, but are 

not limited to: (1) whether the expert's methodology has been tested or is capable 

of being tested; (2) whether the technique has been subjected to peer review and 

publication; (3) the known and potential error rate of the methodology; and (4) 

whether the technique has been generally accepted in the proper scientific 

community. Id. (citing Daubert, 509 U.S. at 593-94; Allison v. McGhan Medical 

Corp., 184 F.3d 1300, 1312 (11th Cir. 1999); Kumho Tire Co. v. Carmichael, 526 

U.S. 137, 149 (1999)). 

However, district courts are given broad discretion when determining 

whether an expert‟s testimony is reliable. The Supreme Court in Kumho Tire Co.

has ruled that 

[A] trial court may consider one or more of the more specific factors that 

Daubert mentioned when doing so will help determine that testimony‟s 

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reliability. But, as the Court stated in Daubert, the test of the reliability is 

“flexible,” and Daubert‟s list of specific factors neither necessarily nor 

exclusively applies to all experts in every case. Rather, the law grants a 

district court the same broad latitude when it decides how to determine 

reliability as it enjoys in respect to its ultimate reliability determination.

526 U.S. at 141-42. In addition, other factors that a court may consider in the 

Daubert analysis are “reliance on anecdotal evidence, temporal proximity, and 

improper extrapolation.” McDowell v. Brown, 392 F.3d at 1298-99 (citing Allison

184 F.3d at 1312). Finally, a court should meticulously focus on the expert's 

principles and methodology, and not on the conclusions that they generate. Id. 

The second prong of the Daubert analysis requires that the proposed 

testimony be relevant. To meet this requirement, the expert testimony must be 

“ „relevant to the task at hand,‟ ... i.e., that it logically advances a material aspect” 

of the case. Daubert 509 U.S. at 591. The relevance requirement is not satisfied 

where the proffered testimony does not assist the trier of fact. Fed. R. Evid.702.

Raymond Arms

Raymond Arms was designated as the Plaintiff‟s Cause and Origin and 

Electrical Engineering expert. Defendant argues that Mr. Arms‟s testimony should 

be excluded because (1) it is not grounded in reliable methodology, (2) the facts do 

not “fit” the theory, and (3) the theories were never tested. 

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Arms stated that he follows the NFPA 921, Guide for Fire and Explosion 

Investigations, when investigating fires. (Doc 23, Exhibit C, p. 20). The purpose 

of NFPA 921:

. . . is to establish guidelines and recommendation for the safe and 

systematic investigation or analysis of fire explosion incidents. ... This 

document has been developed as a model for the advancement and practice 

of fire and explosion investigation, fire science, technology, and 

methodology.

(Doc. 23, Exhibit I § 1.2.1). The NFPA goes on to say that

To understand an appliance more fully, to test its operation, or to explore 

failure mechanisms, the investigator may need to obtain and exact duplicate 

(i.E., an exemplar). . . . Exemplar appliances can be operated and tested to 

establish the validity of the proposed ignition scenario. . . . The testing 

should show not just that the appliance is capable of generating heat, but that 

such heat is of sufficient magnitude and duration to ignite combustible 

material.

(Id. at §§24.5-6)(emphasis added). It is clear that testing on exemplars is not 

required for a theory to be reliable. 

However, there has to be some evidence substantiating the expert‟s opinion 

to find it reliable. “[N]othing in either Daubert or the Federal Rules of Evidence 

required a district court to admit opinion evidence which is connected to existing 

data only by the ipse dixit of the expert.” Michigan Millers Mut. Ins. Corp. v. 

Benfield, 140 F.3d 915, 921 (11th Cir. 1998)(quoting General Elec. Co. v. Joiner, 

118 S.Ct. 512, 519 (1997)). 

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Plaintiffs contend that the testimony is reliable because of Arms‟s 

experience with identifying the cause and origin of fires. The Eleventh Circuit 

decided a case involving a house fire, Michigan Millers Mut. Ins. Corp. v. Benfield, 

and determined that because the expert “testified that he had complied with the 

scientific method within his field of science in determining the cause and origin of 

the fire” that the testimony was “science-based, rather than experience-based.” 

140 F.3d at 920. The Court went on to say that his testimony was unreliable

because the expert had performed no tests, had not taken any samples, and could 

not rationally explain how he came to his conclusion using anything but his own 

opinion.

The same conclusions can be drawn in this case. Arms testified that he 

followed the guidelines for investigating fires established by the NFPA, and 

therefore, his testimony is science-based, not experience-based. (Doc 23, Exhibit 

C, p. 20). Arms‟s theory is that “1) „The wire faulted with the tube;‟ 2) for that to 

happen, „it had to either have a defect, such as a piece of wire nitched out . . . or it 

was vibrating to cause abrasion on the wire such that the insulation thinned so that 

120 volts would conduct between the wire and the tube . . . it could have been a 

pinch . . . it could have been an abrasion;‟ 3) regardless, „it allowed electricity to 

flow through a resistance between the wire and the tube.‟ ” (Doc. 28, p. 5). Arms 

came to this conclusion using his experience and Clarke‟s conclusion that the dryer 

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was on when the fire began. However, Arms admits that this type of ignition 

theory has never been published in a peer-reviewed journal of scientific literature 

or engineering studies. In addition, Arms failed to perform any tests on an 

exemplar and to test the ignition sequence he claims started the fire, so there is no 

known rate of error in the methodology. 

Additionally, Arms‟s testimony was excluded from a remarkably similar 

case involving a house fire in the Eighth Circuit. In Presley v. Lakewood 

Engineering, Inc., Arms did not perform any testing on the ignition sequence and 

failed to provide any scientific publications supporting his ignition theory. 555 

F.3d 639 (8th Cir. 2009). Arms did order metallurgical tests, as he did in this case, 

but the Court stated that “[a]lthough plaintiffs contend Arms‟s observations, the 

metallurgical tests, the C&A flammability tests, and the references to NFPA 921 

sections are adequate bases for reliability, it was not an abuse of discretion for the 

district court to find Arms‟s theory required too great an inferential leap from these 

bases.” Id. at 646. Plaintiffs argue that Presley can be differentiated since Arms‟s

testimony was excluded because he was brought in at the eleventh hour and was 

not given the opportunity to do any tests. However, Arms was involved in this 

case from the start and still failed to perform any tests that would support his 

opinions.

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As in Benfield and Presley, Arms‟s testimony is not reliable because it 

appears to be based solely on opinions that have not been substantiated. Although 

testing on exemplars is not required, in an area such as the fire sciences, testing is 

an important way to show reliability. Without testing or peer-reviewed 

publications to support his theories, Arms‟s opinions are just that—opinions. 

Unsubstantiated opinions fail to meet the standard set forth in Daubert.

Dr. Kendall Clarke

Dr. Clarke is a metallurgy expert with a bachelor‟s degree in engineering, 

master‟s degree in extractive metallurgy, and a doctorate in fracture mechanics. 

Arms retained Dr. Clarke to examine the metal exhaust tube that Arms believed 

caught on fire first and to estimate the temperatures it reached during the fire. He 

examined three sections of the tube with different types of microscopes and 

determined that because the steel was melted, the fire must have reached at least 

2800 degrees Fahrenheit, and in order to reach that temperature, the fan inside the 

dryer must have been on when the fire started. (Doc. 28 p. 6-8). Defendant argues 

that Clarke‟s testimony should be excluded because (1) he is not a cause and origin 

expert, (2) he speculated that lint was involved in the start of the fire, and (3) his 

methodology is unreliable.

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Clarke was not retained as a cause and origin expert, but as a metallurgist for 

the specific purpose of examining the dryer tube. Therefore, Defendant‟s first two 

arguments are irrelevant.

Dr. Clarke‟s testimony is void of any sources that confirm his conclusion 

that the tube must have reached at least 2800 degrees. Plaintiff claims this is based 

on Dr. Clarke‟s knowledge of basic metallurgy from his undergraduate and 

graduate studies. However, Dr. Clarke was not aware of any publications that 

supported his conclusions. (Doc. 23, Exhibit G, p. 100). If this was such a basic 

metallurgic fact, then surely there would be some type of publication (such as a 

textbook) that would support this opinion. In addition, Dr. Clarke stated that he 

could have attempted to replicate the temperatures reached in the dryer duct but 

that he was not asked to for his job. (Id.) Once again, we are left to rely on the 

opinion of one person without any supporting literature or tests, which does not 

meet the reliability test in Daubert.

Defendant‟s motion is granted (Doc. 24). The purposed expert testimony of 

Raymond Arms and Dr. Kendall Clarke will be excluded at trial.

ORDERED on September 20, 2011.

/s/ Richard Smoak 

RICHARD SMOAK

UNITED STATES DISTRICT JUDGE

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