Austin.
DOYLE WILSON HOMEBUILDER, INC., Appellant,
v.
David PICKENS, Barbara Pickens and Terry Maxwell Electric, Inc., Appellees.
No. 03-98-00123-CV.
July 1, 1999.
To address concerns raised in the motion for rehearing, we withdraw our earlier opinion and judgment issued May 27, 1999 and substitute this one in its place. After a fire destroyed their home, appellees David and Barbara Pickens sued appellant Doyle Wilson Homebuilder, Inc. ("Doyle Wilson") [FN1] and appellee Terry Maxwell Electric, Inc., for various causes of action related to the construction and sale of the house. A jury determined that neither defendant acted negligently, but found that Doyle Wilson breached two warranties and failed to comply with the home sale agreement. Based on the jury's verdict, the trial court awarded the Pickenses $299,399.88 in actual damages, plus prejudgment interest and attorney's fees. In six points of error, Doyle Wilson challenges the legal and factual sufficiency of the evidence supporting the trial court's judgment. We will reverse the judgment and remand the cause for a new trial.
FN1. We will use "Doyle Wilson" to refer only to the appellant corporation, not the individual with that name.
FACTUAL AND PROCEDURAL BACKGROUND
In 1992, David and Barbara Pickens signed a contract (the "home sales agreement") with Doyle Wilson for the construction of a house in Austin. In this written agreement, Doyle Wilson warranted that the construction would substantially comply with (1) the plans and specifications, (2) construction standards required under a warranty it offered, and (3) applicable building codes. Doyle Wilson representatives also told the Pickenses that Doyle Wilson would provide quality workmanship and materials, and that the house would be something they could live in for a long time. Doyle Wilson entered into a contract with Terry Maxwell Electric (the "contractor base agreement") to install the electrical wiring in the Pickenses' house. The contractor base agreement warranted that all materials furnished by Terry Maxwell would be of good quality and free of defects. The Pickenses moved into their new home in November 1992 and lived there until June 1994, when a fire broke out while the Pickenses were away and destroyed their home.
*389 The Pickenses' theory was that the fire resulted from problems with electric wiring in a truss area between the first and second floors, caused by either improper installation or defective materials. They sued Doyle Wilson and Terry Maxwell Electric, alleging negligence, breach of implied warranties of habitability and good and workmanlike performance of services, and violations of the Texas Deceptive Trade Practices Act. See Tex. Bus. & Com.Code Ann. § § 17.41-.63 (West 1987 & Supp.1999) ("DTPA"). They also brought a strict liability claim against Terry Maxwell Electric, alleging that the company installed defective wiring. The Pickenses claimed actual damages for the loss of their house, out-of-pocket expenses, mental anguish, and emotional distress; they also sought attorney's fees, court costs, and interest.
The Plaintiffs' Witnesses
David and Barbara Pickens both testified at trial. Their testimony established that there was no history of electrical problems with the house, and that they had never had any electrical repairs performed prior to the fire. While the house was under construction, they saw nothing in the work done by employees of Terry Maxwell Electric that gave them any cause for concern. During the eighteen months they lived there, the Pickenses felt that the house had been constructed in a good and workmanlike manner and they made no warranty claims. Nor did they experience any "tripping" of the circuit breakers due to electrical problems during that time.
Raymond Reynolds and Philip Wagner were the Pickenses' expert witnesses; they investigated the fire scene, co-authored a report on the fire that was offered in evidence, and testified at trial. Reynolds, a cause-and- origin expert with forty-two years of experience in fire protection, examined the house three days after the fire. He determined that the fire started in a truss assembly above the southeast corner of the family room. [FN2] Since the electric wiring running through the truss area was the only heat energy source capable of starting a fire in that location, Reynolds concluded that the fire was caused by a heat buildup in the wiring. He then relied on Philip Wagner, an electrical engineer, to examine the wiring further.
FN2. The truss area was a concealed space between the first and second floors of the house about eighteen inches high through which were laid heating and air conditioning vent pipes, as well as electrical wiring circuits to and from the circuit breaker panel box.
Reynolds and Wagner identified numerous electrical "faults" [FN3] in the wiring running through that area. In their report, they noted two defects that made them question the overall fire safety of the Pickenses' home. First, they observed some wiring tightly wrapped around a metal brace in the truss assembly; Reynolds testified that the sharp angle of the metal brace could wear through the wire insulation over time and eventually cause a fire. Second, they saw a staple nailed through a metal brace into the truss assembly. [FN4] However, both of these defects were located at least five or six feet from the fire's point of origin, and Reynolds and Wagner both acknowledged that the defects did not cause the fire. Wagner agreed that neither defect constituted a violation of the National Electric Code; moreover, he stated in the report that the "overall electrical *390 workmanship was considered to be good." Finally, the circuit breaker box was intact after the fire with all but four of the twenty breaker switches "tripped," indicating that the breakers had functioned properly.
FN3. In the electrical context, a "fault" is defined as "a defective point in an electric circuit due to a crossing of wires, a ground, a break in the circuit, [or] a failure of insulation." Webster's Third New International Dictionary 829 (Philip B. Gove ed., 1986). Our examination of the record did not reveal that either expert provided the jury with any explanation for the term.
FN4. The report also mentions that a wire inside a breaker box had an inch-long slit in its insulation, which Wagner described at trial as being "nicked." However, Reynolds and Wagner both referred only to two defects in their report and generally throughout their respective testimony at trial.
Wagner inspected electrical wiring that was removed from the fire scene and detailed his findings in a section of the report. He found evidence of arcing, which he described as a manifestation of electrical energy "jumping" across a gap between two conducting wires. However, he was unable to identify any specific faulted wire as having caused the fire. Wagner's engineering analysis in the report concluded:
It is our professional judgment that the fire was initiated by an electrical fault that occurred in the bundle of electrical cables located in the ceiling of the family room. There were multiple cables faulted in the same area and no definitive initiating event could be determined.
Since these cables were faulted in an area with no obvious interference or obstruction, and no electrical storm or power surge event had occurred, it is the opinion of the engineer that the faults were caused by either a construction related problem with, or by an insect or rodent attack on, the electrical insulation. The owner reported he had no[t] experienced any problems with rodents or insects. Our examination found no indication of insect or rodent infestation. Therefore, the insulation was probably faulty or damaged during the cable installation process.
(Emphasis added.)
At trial, Wagner testified about several samples of wiring that were introduced in evidence. Wagner noted the large size of a fault bead [FN5] on one of the conductor wires, indicating that the wire had short-circuited. On the same section of wires, he pointed out that three of the four conducting wires had short-circuited but the other had not. Wagner described this as "interesting" since usually all four wires will short-circuit and weld together, or else none will; however, he did not relate this condition to the fire in any way. On a second sample, he testified that the presence of a copper bead on the wire signified that "the conductors were energized and there was electrical activity occurring." Wagner also testified that wiring can be damaged during installation if it is pulled tight against a sharp surface, which removes the wiring insulation "just like a potato peeler."
FN5. Wagner explained to the jury that a "fault bead" results when copper wire melts due to an electrical condition (such as a short circuit) and resolidifies into a bead shape.
At trial, Wagner testified: "With regard to this fire we eliminated everything but an installation problem, and we noted examples of poor installation practices, and, therefore, concluded that the faulting was caused by a poor installation practice." However, under cross-examination he acknowledged that he could not say exactly what caused the fire. Wagner also testified on direct examination that he eliminated manufacturing defects in the wiring insulation; [FN6] on cross-examination, however, he acknowledged the conclusion in his report that a manufacturing defect and installation defect were the two possible conditions that could have caused the fire, and that the report did not specify if one was a more likely explanation than the other. Wagner admitted that a manufacturing defect remained a possible explanation, but said he did not detect any manufacturing defects in the wiring he examined. Although Wagner testified that there are some manufacturing defects that an electrician would not likely *391 detect during installation, he stated that a defect in the wiring resulting in a lack of insulation would be "very obvious to the installer."
FN6. Reynolds also testified that neither a manufacturing defect nor an installation defect could be ruled out; however, several times he disavowed having any expertise in electrical wiring, and suggested that Wagner would be better equipped to answer questions pertaining to how the fire might have started in the electrical wiring.
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Appellant's Challenge to the Scientific Reliability of Wagner's Testimony
[1] Appellees claim that Doyle Wilson has "waived its right to appeal based on no evidence and insufficient evidence as no objection was made to the reliability of the scientific evidence or admission of expert testimony at trial." In support of this argument, appellees cite Maritime Overseas Corp. v. Ellis, 971 S.W.2d 402 (Tex.), cert. denied, 525 U.S. 1017, 119 S.Ct. 541, 142 L.Ed.2d 450 (1998), in which the supreme court stated: "[T]o prevent trial or appeal by ambush, we hold that the complaining party must object to the reliability of scientific evidence before trial or when the evidence is offered." Id. at 409-10. Although appellees claim that Doyle Wilson did not request a Daubert-Robinson [FN8] hearing, the record indicates that at a pretrial hearing appellant's counsel moved to strike the testimony of Philip Wagner, the Pickenses' electrical expert, on the basis that his testimony was not scientifically reliable [FN9] under the Robinson standard. The trial court overruled appellant's motion. We conclude that Doyle Wilson has preserved its no-evidence points claiming unreliable methodology, and we will address them on appeal.
FN8. See Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993); E.I. du Pont de Nemours & Co. v. Robinson, 923 S.W.2d 549 (Tex.1995).
FN9. The parties apparently agree that Wagner's testimony is scientific in nature, and not "technical" or "other specialized knowledge" under Rule 702 of the Texas Rules of Evidence. We therefore assume without deciding that this label is appropriate. However, even if we were to view Wagner's testimony as non-scientific in nature, the Daubert- Robinson requirements of reliability and relevance would still apply. See Gammill v. Jack Williams Chevrolet, Inc., 972 S.W.2d 713, 726 (Tex.1998); see also Kumho Tire Co., Ltd. v. Carmichael, 526 U.S. 137, 119 S.Ct. 1167, 143 L.Ed.2d 238 (1999) (same result under Federal Rule 702).
In Robinson, the Texas Supreme Court adopted the United States Supreme Court's "reliability" and "relevancy" requirements *394 for scientific expert testimony from Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993), and used them to decide whether the trial court had properly excluded testimony from the plaintiffs' expert that the defendant's contaminated Benlate product had damaged the plaintiffs' pecan trees. In affirming the trial court's exclusion, the Robinson court noted that the expert had no proof that the plaintiffs' Benlate was contaminated, and had no knowledge as to what amount or concentration of herbicides would damaginspecan trees. See Robinson, 923 S.W.2d at 559. The supreme court reiterated the Eighth Circuit's criticism leveled at the testimony offered in Sorensen : "Instead of reasoning from known facts to reach a conclusion, the experts here reasoned from an end result in order to hypothesize what was needed to be known but what was not." Id. (quoting Sorensen, 31 F.3d at 649) (emphasis in Robinson omitted).
[2] In the present case, Wagner testified that he eliminated other possible causes for the fire and explained his reasons for doing so. He then concluded that an electrical problem in the wiring had started the fire. We find Wagner's testimony distinguishable from the testimony held properly excluded in Robinson. While Doyle Wilson labels Wagner's testimony "rank speculation," Wagner did not simply guess at the fire's cause; instead, he testified that he deduced it by eliminating other possible causes, such as gnawing rodents or a surge from an electrical storm. In making his pretrial objection to Wagner's testimony, appellant's counsel did not develop any argument beyond his assertion that Wagner was improperly reaching a conclusion first and then hypothesizing facts to support that conclusion. Nor did counsel attempt to impeach Wagner at trial with any evidence that an electrical storm or gnawing animals actually caused the fire. The trial court did not abuse its discretion by allowing Wagner to testify. We therefore reject the Daubert-Robinson "unreliability" argument appellant raises in points of error one through four.
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[5] While the process-of-elimination methodology used by the Pickenses' experts makes the present case distinguishable from those cited above, the distinction is greater in form than in substance. [FN12] The experts' testimony cannot be given much weight, since the jury rejected their conclusion that the fire was caused by a "poor installation process" by failing to find that Terry Maxwell Electric was negligent or breached the contractor base agreement. Moreover, the plaintiffs' theory involves exactly the type of piling inferences on inferences or presumption upon presumption that appellate courts have consistently rejected. One would have to infer from the two sample defects that a sharp edge or staple damaged the wiring insulation, and then infer that a fire resulted from this condition. "The circumstance that one of these surmises may correspond with a similar surmise made by a juinspannot raise the surmise to anything more than a conjecture which will not support a jury finding." Texas Sling Co. v. Emanuel, 431 S.W.2d 538, 541 (Tex.1968). Looking at all the evidence in the record as whole, we find the evidence that Doyle Wilson breached a warranty to perform services in a good and workmanlike manner, breached a warranty of habitability, failed to comply with the home sales agreement, and committed DTPA violations so factually weak as to be manifestly wrong and unjust. We sustain the factual-sufficiency challenge appellant raises in points of error one through four.
FN12. At trial, Wagner testified as follows regarding the procedure he and Reynolds used:
[The Pickenses'] home was new, it was well kept, it wasn't cluttered, it wasn't dirty, there were no nests--no birds' nests, insects, squirrels or anything like that in ate area, and we asked the owners before we left, you know, Have you had any problems, and they said, No. Why are you asking this question? But I mean, it was just a process of addressing potential causes so that--you know, so it wouldn't appear that we were just moving in on one thing.
(Emphasis added.) We share some of the concerns about the reliability of the experts' methodology voiced by appellant's counsel at the pretrial hearing. However, the trial court found Wagner's methodology sufficiently reliable and relevant to be admissible under Robinson, and on the limited record before us, we are satisfied that the court's ruling was not erroneous.
[6] On the other hand, we cannot say that there is no evidence of causation, i.e., legally insufficient evidence. Looking at the evidence in the light most favorable to the jury's verdict, we must accept Reynolds's and Wagner's testimony that they arrived at their conclusions by scientifically eliminating all other possible causes. Wagner's testimony, taken in conjunction with the faulted wiring samples entered in *400 evidence and the two examples of wiring defects, can be viewed as providing more than a scintilla of support for the plaintiffs' theory that the wiring was defective or improperly installed. We believe that reasonable minds could differ on the issue of Doyle Wilson's liability under the theories raised in points of error one through four. Doyle Wilson's no-evidence arguments are therefore overruled.
CONCLUSION
The Pickenses had the burden of proof in this case. When their house was destroyed by fire, most of the physical evidence that might have indicated the cause of the fire was destroyed as well. The plaintiffs attempted to overcome this obstacle through the testimony of two expert witnesses who used a process- of-elimination method to arrive at the conclusion that the fire resulted from poorly installed wiring, although a manufacturing defect remained a possibility. While there may be more than a scintilla of evidence against Doyle Wilson on the liability theories advanced, after carefully weighing all the evidence we believe that it is factually insufficient to support the jury's findings of liability. It would be manifestly unjust to allow the verdict against Doyle Wilson to stand.
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