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Lasek v. Vermont Vapor, Inc.

Supreme Court of Vermont

April 11, 2014

Johnathan Lasek
Vermont Vapor, Inc. and Downing Properties, LLC

Page 448

[Copyrighted Material Omitted]

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Editorial Note:

This Opinion is subject to motion for reargument or formal revision before publication. See V.R.A.P. 40

On Appeal from Superior Court, Rutland Unit, Civil Division. William D. Cohen, J.

The case is affirmed in all respects except for the award of deposition costs, which is reversed and remanded for recalculation consistent with this decision.

Kaveh S. Shahi of Cleary, Shahi & Aicher, P.C., Rutland, for Plaintiff-Appellant.

Andrew B. Delaney of Martin & Associates, P.C., Barre, for Defendant-Appellee Vermont Vapor, Inc.

Allan R. Keyes of Ryan Smith & Carbine, Ltd., Rutland, for Defendant-Appellee Downing Properties, LLC.

Present: Reiber, C.J., Dooley, Skoglund, Robinson and Crawford, JJ.


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Crawford, J.

[¶1] Plaintiff appeals the trial court's grant of judgment as a matter of law to defendants following a three-day jury trial in this negligence case. Plaintiff claims that the trial court erred in (1) excluding the testimony of plaintiff's expert witness on causation, (2) granting defendants' motion for judgment as a matter of law, (3) excluding an eyewitness's statements to police, (4) denying plaintiff's motion for a new trial, (5) awarding all deposition costs to defendants, and (6) refusing to disqualify counsel for defendant-landlord. We affirm the trial court's decision in all respects, with the exception of the award of deposition costs.

[¶2] This case arose following a fire that destroyed a commercial building in Rutland, Vermont in April 2010. The following facts were introduced through plaintiff's witnesses at trial. Plaintiff Johnathan Lasek leased the northern half of the building and used the space as a workshop for his house-staining business. He stored staining products and other equipment and constructed a business office in the northeastern corner of the building. The southwestern corner of the building contained a fully enclosed room that was occupied by another commercial tenant, Vermont Vapor Inc. (VVI). The remainder of the building was used by landlord Downing Properties, LLC, as storage for ATVs, motorcycles, and snowmobiles.

[¶3] VVI used its space as a laboratory for mixing the liquid filler for electronic cigarettes. The process involved diluting liquid nicotine with glycerin and other ingredients. VVI is owned by Adam Tredwell. Adam hired his father, Warren Tredwell, to alter the room to Adam's specifications. Warren added sheetrock and other materials to create a " clean room." He also installed an eight-inch fan

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on the south wall of the laboratory that vented to the outside of the building. An industrial space heater was suspended from the rafters of the warehouse, above the ceiling of the laboratory. The Tredwells connected the heater to a propane tank so that they could heat the space in the winter months. Warren was the last person in the laboratory the night before the fire.

[¶4] The fire was reported at around 5:00 a.m. on April 7, 2010. When firefighters arrived a few minutes later, the northwest corner of the building -- plaintiff's corner -- had a large hole in the roof and was heavily engulfed in flames. VVI's corner was not on fire at that time.

[¶5] Plaintiff sued VVI for negligence and strict liability, alleging that VVI had caused the fire by mishandling liquid nicotine. He also sued landlord for breach of the implied warranty of suitability for commercial use, negligence, breach of the duty to warn, and unjust enrichment. After plaintiff's presentation of his case, the trial court granted defendants' motion for judgment as a matter of law. This appeal followed.

I. Exclusion of Expert Testimony on Causation

[¶6] Prior to trial, defendants filed a joint motion to exclude the testimony of plaintiff's fire investigator about the cause of the fire. The court did not rule on the motion at that time. Instead, it conducted a mid-trial hearing on admissibility after defendants renewed their objection.[1] The court ultimately ruled that the fire investigator could not offer his opinion regarding the cause of the fire because his opinion did not meet the standards of Vermont Rule of Evidence 702 and Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993). Plaintiff argues that this ruling was error.

[¶7] Under Rule 702, a qualified expert witness may testify if his or her testimony " will assist the trier of fact to understand the evidence or to determine a fact in issue" and " 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." V.R.E. 702. Vermont Rule 702 is derived from Federal Rule 702, and the two provisions are substantively identical.

[¶8] In Daubert, the U.S. Supreme Court held that Federal Rule 702 superseded the traditional test for admissibility of expert testimony set forth in Frye v. United States, 293 F. 1013, 1014 (D.C. Cir. 1923). 509 U.S. at 586, 592-93. The Daubert decision created " a flexible standard requiring only that expert testimony be both relevant and reliable to be admissible." 985 Assocs., Ltd. v. Daewoo Elecs. Am., Inc., 2008 VT 14, ¶ 6, 183 Vt. 208, 945 A.2d 381 (citing Daubert, 509 U.S. at 588-89). Because our rules of evidence are " essentially identical" to the federal rules, we have adopted the standards set forth in Daubert and its progeny governing admissibility of expert testimony. Id. (quotation omitted).

[¶9] " [W]e review trial court decisions on the admissibility of expert testimony only for abuse of discretion." Id. ¶ 9. However, we must " engage in a substantial and thorough analysis of the trial

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court's decision and order to ensure that the trial judge's decision was in accordance with Daubert and our applicable precedents." USGen New Eng., Inc. v. Town of Rockingham, 2004 VT 90, ¶ 24, ...

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