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Carnell v. Barker Management6/3/2002
each determined the cause of the fire to be a lighter, which was used to set fire to the bedding of the hide-a-bed. They both excluded electrical problems as the cause of the fire. In their affidavits, both men gave detailed information about their education, experience, and training as fire inspectors, provided specific cases in which they had testified as experts, explained the methodology they used to determine the cause and origin of the fire, and explained how they were able to conclude that the fire was caused by the lighting on fire of the bedding of the hide-a-bed, not by electrical causes.
During this litigation, counsel for Seeley retained Ted Itchon (Itchon), an expert fire investigator, as a consultant. As part of his investigation, Itchon had removed various pieces of evidence from the basement after the fire. Plaintiffs sought to have that evidence examined by an expert from California whom they had retained. The district court ordered the evidence to be shipped to California for examination. The evidence was returned, but the California expert's opinion or findings were never filed. A summary judgment hearing on all issues except causation was scheduled for August 30, 1999. On August 6, 1999, counsel for Jerry and Cindy, and counsel for Stacie and Morgan were granted leave to withdraw as plaintiffs' attorneys. Gordon Jenkins took over as counsel for all plaintiffs, and immediately moved for an extension of time to respond to the defendants' motions for summary judgment. The motion was granted. The summary judgment hearing as to all issues except causation was heard as scheduled on August 30, 1999.
Prior counsel had unsuccessfully attempted to seek the court's permission to depose Itchon on several occasions. On September 29, 1999, the district court granted plaintiffs' motion to depose Itchon, a non-witness expert. In support of their motion to depose Itchon, plaintiffs submitted the affidavit of George C. Bidstrup (Bidstrup), an electrician. Bidstrup stated that to determine the cause of the fire and render an opinion on the fire's origin, he needed to speak to the person who had removed crucial evidence from the situs of the fire. The district court based its decision on the fact that the other experts' affidavits made it clear that having an opportunity to inspect the home was vital to rendering an opinion; therefore, plaintiffs were entitled to speak with Itchon, who had inspected the home and removed evidence from the fire situs. After finally succeeding in their efforts to depose Itchon, the plaintiffs never deposed him, and never even contacted Seeley's counsel to arrange a meeting with Itchon.
On October 20, 1999, the district court issued an order regarding defendants' motions for summary judgment as to all issues except causation. The court granted summary judgment for Seeley as to all claims, and granted summary judgment as to the other defendants for claims that lacked foundation in law, such as those for negligent and intentional misrepresentation, pain and suffering claims by the Estates of Cambria Carnell and Brittiny Carnell, and for the wrongful death claims of Morgan McCarthy. The court denied summary judgment as to all other claims because the cause of the fire would impact them. In an order dated November 8, 1999, the court also dismissed the wrongful death claims of Morgan McCarthy against Phillips Electric.
On November 16, 1999, Phillips Electric renewed its motion for summary judgment as to the issue of causation. The other defendants quickly followed suit. A hearing was calendared, rescheduled twice, and finally set for March 20, 2000. On March 9, 2000, plaintiffs submitted a second affidavit of Bidstrup in opposition to the motions
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