Opinion Affirming Expert Testimony Admission

Federal appellate court narrowly affirms the admission of origin-and-cause expert testimony in Arkansas arson case.

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IN THE UNITED STATES COURT OF APPEALS
FOR THE EIGHTH CIRCUIT
_______________________________

CASE NO.: 14-3092
_______________________________

KIRK MANUEL,

Plaintiff-Appellant,

v.

MDOW INSURANCE COMPANY,

Defendant-Appellee.

______________________________________________________________

ON APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF ARKANSAS – HELENA
NO. 2:12-CV-00035-KGB
________________________________________________________________

OPENING BRIEF OF
PLAINTIFF-APPELLANT

ANDREW B. GREENLEE, P.A.
Andrew B. Greenlee, Esq.
Florida Bar No. 96365
401 East 1st Street
Unit 261
Sanford, Florida 32772
(407) 808-6411
andrew@andrewgreenleelaw.com
Counsel for Plaintiff-Appellant

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ii

SUMMARY OF THE CASE

Kirk Manuel owned a house in Arkansas that caught fire while he and his
family were on vacation in Las Vegas. MDOW Insurance Company denied Mr.
Manuel’s claim under his policy, and he brought suit for breach of contract. During
trial, MDOW’s expert opined that the fire was intentionally set based on “process of
elimination” of other possible causes. MDOW prevailed. The jury found that Mr.
Manuel either intentionally burned or caused his home to be burned.
After trial, Mr. Manuel discovered that two jurors knew a number of his
witnesses. Juror W, a teacher, caught one of Manuel’s witnesses fighting in school
with a knife. Juror W was also cousin of another one of Manuel’s witnesses, and
coached and taught Mr. Manuel’s son, Deangelo Manuel, who testified at trial. Mr.
Manuel also discovered that another juror, Juror C, was married to a man who was
once engaged to another one of Mr. Manuel’s witnesses. Neither juror disclosed
their relationships with these witnesses to the district court. Mr. Manuel filed a
motion for new trial. The district court denied the motion without holding a hearing.
The district court erred in two respects. First, it erred in denying the motion
for new trial without holding a hearing. Second, the district court plainly erred when
it allowed MDOW to rely on an expert opinion founded on the unscientific and
discredited “negative corpus” theory of determining the cause of a fire. Mr. Manuel
believes that oral argument would assist the Court and requests 15 minutes per side.
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iii

CORPORATE DISCLOSURE STATEMENT

Defendant-Appellee MDOW Insurance Company is a wholly-owned, direct
or indirect subsidiary of Columbia Lloyds Insurance Company, a privately held
company. (DCD 7). No publicly held corporation owns ten percent or more of the
stock of MDOW Insurance Company. Id.
Plaintiff-Appellant Kirk Manuel is an individual with no corporate ties that
bring him within the purview of Federal Rule of Appellate Procedure 26.1.

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TABLE OF CONTENTS

SUMMARY OF THE CASE…………………………………………………………………………… ii
CORPORATE DISCLOSURE STATEMENT …………………………………………………….. iii
TABLE OF CONTENTS ……………………………………………………………………………….iv
TABLE OF CITATIONS ……………………………………………………………………………….. v
STATEMENT OF JURISDICTION …………………………………………………………………… 1
STATEMENT OF THE ISSUES ……………………………………………………………………….. 2
STATEMENT OF THE CASE …………………………………………………………………………. 2
SUMMARY OF THE ARGUMENT ………………………………………………………………… 12
I. THE DISTRICT COURT ERRED WHEN IT DENIED MR.
MANUEL’S MOTION FOR NEW TRIAL WITHOUT
CONDUCTING AN EVIDENTIARY HEARING ………………………………. 14
A. Standard of Review ………………………………………………………………… 14

B. Argument on the Merits ………………………………………………………….. 14

II. THE DISTRICT COURT PLAINLY ERRED WHEN IT PERMITTED
MDOW TO RELY ON AN EXPERT OPINION FORMED USING
THE DISCREDITED AND UNSCIENTIFIC “NEGATIVE CORPUS”
METHODOLOGY …………………………………………………………………………. 19
A. Standard of Review ……………………………………………………………….. 19

B. Argument on the Merits ………………………………………………………….. 19

CONCLUSION …………………………………………………………………………………………. 24
CERTIFICATE OF SERVICE ……………………………………………………………………….. 24
CERTIFICATE OF COMPLIANCE…………………………………………………………………. 25

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TABLE OF CITATIONS

Cases
Cole v. Homier Distributing Co., Inc., 599 F. 3d 856 (8th Cir. 2010) ……………….. 19
Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993) ………… passim
Fireman’s Fund Ins. Co. v. Canon U.S.A., Inc., 394 F.3d 1054 (8th Cir. 2005) ….. 20
Gilbert v. DaimlerChrysler Corp., 685 N.W.2d 391, 408 n.46 (Mich. 2004) .. 22-23
In re Zurn Pex Plumbing Prods. Liab. Litig., 644 F.3d 604 (8th Cir. 2011) ………. 20
Kumho Tire Co. v. Carmichael, 526 U.S. 137 (1999) …………………………………….. 20
McKnight v. Johnson Controls, Inc., 36 F. 3d 1396 (8th Cir. 1994) …………………. 34
People v. Pruitt, No. 313065, 2014 WL 1320253 (Mich. Ct. App. Apr. 1, 2014) .. 22
Presley v. Lakewood Eng’g, 553 F.3d 638 (8th Cir. 2009) ……………………………… 20
McDonough Power Equipment, Inc. v. Greenwood, 464 U.S. 548 (1984) …… passim
Reece v. Bank of New York Mellon, 760 F. 3d 771 (8th Cir. 2014) …………………….. 1
Rush v. Smith, 56 F.3d 918 (8th Cir.1995) …………………………………………………… 19
Russell v. Whirlpool Corp., 702 F. 3d 450 (8th Cir. 2012) ……………………………… 20
Skaggs v. Otis Elevator Co., 164 F.3d 511 (10th Cir. 1998) ……………………………. 10
United States v. Allsup, 566 F.2d 68 (9th Cir. 1977) ……………………………………… 15

United States v. Mitchell, 690 F.3d 137 (3d Cir. 2012) ……………………….. 14, 15, 18

United States v. Tucker, 137 F. 3d 1016 (1998) ……………………………………… passim

United States v. Tucker, 243 F.3d 499 (8th Cir. 2001) …………………………………… 15
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Other Authority
28 U.S.C. § 1291 ……………………………………………………………………………………….. 1
28 U.S.C. § 1332 ……………………………………………………………………………………….. 1
FED. R. APP. P. 4 ………………………………………………………………………………………… 1
NATIONAL FIRE PROTECTION ASSOCIATION 921, GUIDE FOR FIRE AND EXPLOSION
INVESTIGATIONS (2011) ………………………………………………………………………. passim

FED. R. EVID. 702 ………………………………………………………………………….. 19, 20, 22

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STATEMENT OF JURISDICTION
The United States District Court for the Eastern District of Arkansas had subject
matter jurisdiction under 28 U.S.C. § 1332 because (1) Kirk Manuel is a citizen1 of
the State of Arkansas; (2) MDOW is an insurance company incorporated under the
laws of the State of Texas; and (3) the amount in controversy exceeds $75,000,
exclusive of interest and costs. (App. 9); 28 U.S.C. § 1332(a).
Pursuant to 28 U.S.C. § 1291, this Court has appellate jurisdiction over the
judgment entered on April 24, 2014. (DCD 70). On May 21, 2014, Mr. Manuel filed
a motion for new trial (App. 19), which was denied on July 29, 2014 (App. 33). Mr.
Manuel timely noticed this appeal on August 27, 2014. (DCD 82); FED. R. APP. P.
4(a)(4)(A)(v). This appeal is from a final judgment that disposed of all issues pending
in the district court.

1 The Notice of Removal actually states that Mr. Manuel is a “resident” of the State
of Arkansas. (App. 9). “When it comes to diversity jurisdiction, the words ‘resident’
and ‘citizen’ are not interchangeable.” Reece v. Bank of New York Mellon, 760 F.
3d 771, 777 (8th Cir. 2014). Allegations of residence, as opposed to citizenship, are
insufficient to invoke diversity jurisdiction. Id. Nevertheless, Mr. Manuel attested
to undersigned counsel that he was an Arkansas citizen both when the case
commenced and when MDOW removed it to federal court. Accordingly, this Court
may “exercise [its] discretion to deem the defective pleadings properly amended.”
Id. at 778.
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ISSUES PRESENTED FOR REVIEW
ISSUE: Did the district court err when it denied Mr. Manuel’s Motion for New
Trial without holding an evidentiary hearing?
ISSUE II: Did the district court plainly err when it permitted MDOW’s expert
to offer an opinion using the scientifically-discredited “negative corpus” method for
determining the cause of the fire?
 McDonough Power Equipment, Inc. v. Greenwood, 464 U.S. 548 (1984)
 United States v. Tucker, 137 F. 3d 1016 (1998)
 Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993).
STATEMENT OF THE CASE
This case arises out of a fire that occurred September 14, 2011, at 6360
Phillips 300 Road, West Helena, Arkansas. (DCD 50 at 1; DCD 49 at 1). Mr.
Manuel owned the residence that was destroyed by the fire. Id. At the time of the
fire, Mr. Manuel and his family were on vacation in Las Vegas. (DCD 89, TR. Vol.
1, p. 61-62).
The parties did not dispute that Mr. Manuel had purchased a home insurance
policy that provided $150,000 in coverage for the residence, $75,000 for personal
property, and $45,000 for additional living costs. (DCD 50 at 1; DCD 49 at 1). Id.
However, MDOW denied Mr. Manuel’s claims under the policy. Id. According to
MDOW, the fire arose because of intentional acts committed by Mr. Manuel or
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someone acting on his behalf. Id. MDOW also asserted that Mr. Manuel
fraudulently misrepresented material facts on his claim form. Id.
Mr. Manuel brought a breach of contract action against MDOW in the circuit
court of Phillips County, Arkansas. (App. 9). MDOW removed the case to the
United Stated District Court for the Eastern District of Arkansas on February 28,
2012. Id. The trial commenced on April 9, 2014. (DCD 60).
During jury selection, the district court asked the potential jurors whether
anyone knew any of the prospective witnesses for either party. (DCD 92, TR. Vol.
1-A, p. 12-14). One prospective juror, Juror W, admitted that during his career as a
teacher he taught, Brett Ford, a witness for Mr. Manuel; however, he claimed that
his relationship with Mr. Ford would not impact his ability to serve as a juror. Id. at
13. Neither Juror W, nor any of the other potential jurors, disclosed the existence of
a relationship with any other witnesses for either party. Id. at 12-14.
The district court concluded the jury selection by asking the jury pool by the
following questions:
Can you think of any other matter which you should call to the
Court’s attention which might have some bearing upon your
qualification to serve as a juror? In other words, we haven’t asked it,
but you are sitting there thinking, if only they had asked this, I would
have said I’m not the right person to hear this case. Anyone? . . . I’m
going to ask that question in a slightly different way. If you were one
of the parties in this case, do you know of any reason why you would
not be satisfied to have the case tried by someone in your frame of
mind?

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Id. at 29. None of the jurors responded. Id.
During trial, MDOW presented no evidence that Mr. Manuel or anyone he
knew actually committed arson. Instead, MDOW relied on its expert, Richard Eley,
who opined that someone intentionally set the fire. (App. 38-133). Mr. Eley testified
that he arrived at his opinion through a “process of elimination.” Id. at 44, 50.
Mr. Eley elaborated as follows:
There was nothing on, no appliances. There was no physical
evidence that any of those appliances failed and caused the fire. The
electrical wiring did exactly what I would have expected it to do. After
looking at 8,000 fires, when you have a fire of that magnitude, it’s going
to short and melt that wire in the area where it starts. And beyond that,
there’s not going to be any.

I had a conversation with Mr. Manuel. And he told me that
nothing was left on, no problems with anything in the house, had no
idea how the fire could have started, no new appliances or anything of
that nature that had been installed in there right before the fire. So based
on all of that information that I obtained from the homeowner, as well
as what I found from my own fire scene examination, I determined that
the fire should be classified as an incendiary fire, an intentionally set
fire.

Id. at 50-51.
On cross-examination, counsel for Mr. Manuel confronted the witness
National Fire Protection Association (“NFPA”) 921 Guide for Fire and Explosion
Investigations, which prohibits the formation of opinions based on the “negative
corpus” method of determining the ignition of a fire. Id. at 105. According to the
NFPA, the negative corpus method is defined as the “process of determining the
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ignition source for a fire by eliminating all ignition sources found, known or believed
to have been present, and then claiming such methodology is a proof of an ignition
source for which there is no evidence.” Id. at 113-14 (quoting NFPA 921 § 18.6.5
(2011)).
Counsel for Mr. Manuel further cross-examined Mr. Eley with the NFPA’s
admonition that the “use of the process of elimination,” is “not consistent with the
scientific method, is inappropriate and should not be used because it generates
untestable hypotheses and may result in incorrect determinations of the ignition
source.” Id. (emphasis added) (quoting NFPA 921 § 18.6.5 (2011)). That is because
this method “may result in incorrect determinations of the ignition source and first
fuel ignited.” Id. at 106. “Any hypothesis formulated for the causal factors, first
fuel, ignition source and ignition sequence must be based on facts. Those facts are
derived from evidence, observation, calculation, experiments and the laws of
science. Speculative information cannot be included.” Id.
Mr. Eley conceded that he formed his opinion based on the process of
elimination, but claimed that he followed NFPA 921: “Everything I did was
scientific, and it followed NFPA 921.” Id. at 104. Counsel then inquired as to what
source Mr. Eley used to form his opinion about negative corpus. In response Mr.
Eley explained:
I guess there’s not a book. It’s my opinion of what negative
corpus is as opposed to what I think you are trying to get at from using
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921. And what I believe negative corpus would be is if I came into this
room and all I had was the light fixtures and the switches and things
like that, I did not have a chance to talk to the owner or the last person
in, and just from just looking around and saying, well, I don’t see
anything that could have caused it, well, boom, you know, that in my
mind might be negative corpus.

On the other hand, if you do a physical examination of everything
in the area where the fire started and you can’t find anything in that area
that shows evidence that it caused a fire, and then I’m able to talk to the
owner, like Mr. Manuel, or whoever the last person was in the house at
the time of the fire, and they gave me all the information that I’ve talked
about already from him, that nothing was on, there was no problems,
nothing stored in the house of a flammable nature, I believe that goes
beyond the negative corpus, because you are now putting a human
element at least for information in the hypothesis that you are trying to
formulate and when you can say you can look at all of the physical
evidence and say there’s nothing there that could have caused the fire.
And then Mr. Manuel pretty much tells me the same thing, there’s
nothing that he knows of that he’s had any problems with that he’s had
work done on that could have caused the fire accidentally. To me, you
can only reach one conclusion. It had to be an intentionally set fire.

Id. at 284-85.
On re-cross examination, counsel for Mr. Manuel again consulted NFPA 921
to confront Mr. Eley on the basis for his conclusion:
‘In the circumstances where all hypothesized fire causes have
been eliminated and the investigator is left with no hypothesis that is
evidenced by the facts of the investigation, the only choice for the
investigator is to opine that the fire cause remains undetermined. It is
improper to base hypotheses on the absence of any supportive evidence.
It is improper to opine a specific ignition source that has no evidence to
support it, even though all other hypothesized sources were eliminated.’

Mr. Eley, that’s exactly what you did.

Id. at 114 (emphasis added). Mr. Eley once again responded by disputing that he
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used negative corpus in arriving at his conclusion that the fire was intentionally set.
Id.
MDOW did not dispute that Mr. Manuel and his family were in Las Vegas
when the house caught fire. However, MDOW attempted to raise an inference that
Mr. Manuel had a financial motive for setting the fire. To do so, it highlighted Mr.
Manuel’s monetary difficulties stemming from: (1) his bankruptcy; (2) the closure
of his bail bond business; and (3) his pending divorce at the time. (DCD 91, TR.
Vol. 3, p. 369). According to MDOW, those were “three big red flags.” Id.
MDOW also sought to highlight purported inconsistencies in Mr. Manuel’s
divorce pleadings, his bankruptcy filing, and his claim form. MDOW called Mr.
Manuel’s ex-wife, Tawanna Manuel, to discuss the divorce proceedings. (App.
116). After the conclusion of her testimony, Juror W informed the district court that
he knew Mrs. Manuel from her time in school. (App. 132). Juror W averred that
his knowledge of Ms. Manuel would not cause him any difficulty in fairly
participating in the trial. (App. 132-33). Juror W did not disclose that he knew any
other witnesses for Mr. Manuel. Id.
After the close of evidence and closing arguments, the jury returned a verdict
in favor of MDOW. (DCD 69, Verdict). In its special verdict, the jury found that
“MDOW Insurance Company proved by a preponderance of the evidence that Mr.
Manuel either burned his home or caused it to be burned.” (DCD 69, Verdict, p. 1).
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The jury did not reach the second question, whether Mr. Manuel intentionally
concealed or misrepresented material facts during the investigation of the fire at his
home, or the amount of damages Mr. Manuel suffered. Id. at 2-3.
On May 21, 2014, Mr. Manuel filed a Motion for New Trial. (App. 19). Mr.
Manuel averred that two jurors failed to disclose their relationships with five of his
witnesses, even though the Court made specific inquiry into such relationships
during jury selection. Id. Mr. Manuel supported the motion with his own affidavit,
in which he alleged that he did not know that the jurors knew his witnesses during
jury selection. (App. 21).
Mr. Manuel also attached the affidavit of Corey Watson, one of his testifying
witnesses. (App. 23). Mr. Watson stated that Juror W was his cousin, and that the
two of them attended the funeral of his grandmother several weeks before trial. Id.
Mr. Watson averred that he made eye contact with Juror W during trial, at which
point he realized that he was related to the juror. Id.
In addition, Mr. Manuel submitted the affidavit of Nicholas Skinner, a
potential witness, who was named on Manuel’s witness list. (App. 25). Skinner
watched the proceedings and recognized Juror W, but ultimately did not testify
during trial. Id. Mr. Skinner stated in his affidavit that Juror W once broke up a
fight between Mr. Skinner and another youth. Id. Mr. Skinner had a knife, and Juror
W sent Skinner to the office. Id.
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Mr. Manuel’s son, Deangelo Manuel, who testified on behalf of Mr. Manuel,
also provided an affidavit. (App. 27). Deangelo stated that he knew Juror W
personally, because Juror W served as his coach and teacher in both junior high and
high school. Id. Deangelo also stated that Juror W knew his mother, and that one
day Tawanna Manuel introduced Deangelo as her son to Juror W. Id.
Another witness who testified for Mr. Manuel, Jacqueline Strother, provided
an affidavit alleging yet another connection to a sitting juror. (App. 29). Ms.
Strother testified in the affidavit that Juror C was a childhood friend, with whom she
attended middle school, junior high, and high school. Id. Ms. Strother additionally
stated that Juror C married a man to whom Ms. Strother was betrothed to marry when
she was 18 years old. Id.
Finally, Mr. Manuel provided the affidavit of Melissa Cartwright, who
testified for Mr. Manuel. (App. 31). Ms. Cartwright stated that she, too, had a
relationship with Juror C, because Juror C served at that time as the high school art
teacher for Ms. Cartwright’s autistic son. Id. According to Ms. Cartwright, Juror C
participated in formulating her son’s special education plan. Id.
In his brief in support of the motion for new trial, Mr. Manuel noted the two
jurors concealed their relationships to his witnesses. He argued that concealed juror
bias is a recognized ground for a new trial, and maintained that Juror W’s “repeated
failure . . . to disclose to the Court his relationships with [Mr. Manuel’s] witnesses,
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combined with his willingness to disclose to the Court his relationship with
[MDOW’s] key witness,” Tawanna Manuel, demonstrated “actual bias” against Mr.
Manuel. (DCD 73, p. 7). Mr. Manuel claimed that, if he had known of Juror W’s
connections to his witnesses, he would have asked to strike this juror for cause. Id.
Mr. Manuel similarly argued that the “repeated failure” of Juror C to
“disclose to the Court her relationships with [Mr. Manuel’s] witnesses shows actual
bias against” him. Id. Mr. Manuel likewise asserted that if he knew of Juror C’s
relationships, he would have tried to remove her for cause. Id. Mr. Manuel asserted
that, in light of the actual bias of these witnesses, he should be granted a new trial.
Id. at 8.
In addition to the claim that these jurors had actual bias, Mr. Manuel argued
that the jurors had an “implied bias” against him. Id. at 8. According to Mr. Manuel,
under the “implied bias” test, even if a party is “unable to prove a juror’s incorrect
response to a material question was intentional,” the party “may introduce evidence
demonstrating bias on the part of a juror who gave an incorrect but not intentionally
dishonest answer during voir dire.” Id. at 9 (quoting Skaggs v. Otis Elevator Co.,
164 F.3d 511, 516 (10th Cir. 1998)).
Mr. Manuel argued that Juror W failed to reveal a close familial relationship
with Corey Watson, and noted that relatives “can have bad relationships with one
another and harbor bad feelings.” Id. at 10. Mr. Manuel asserted that the failure to
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disclose this close familial relationship with a witness gives rise to an inference of
implied bias, particularly since Juror W did inform the district court that he knew
one of MDOW’s witnesses, Mr. Manuel’s ex-wife, Tawanna Manuel. Id. Mr.
Manuel additionally argued that Juror W was a witness to a criminal transaction
involving Mr. Skinner, because Juror W broke up a fight and caught Skinner with a
knife. Id. Therefore, Mr. Manuel maintained that Juror W met the test for implied
bias. Id.
Mr. Manuel also claimed that Juror C met the test for implied bias against
him. Id. Mr. Manuel observed that the “relationship between a wife and her
husband’s former fiancé is very probably fraught with issues of dysfunction.” Id. at
10. Thus, Mr. Manuel argued that the district court could “imply concealed juror
bias” from Juror C’s failure to tell the district court she knew Ms. Strother. Id.
The district court rejected these arguments. (App. 34). The district court
accepted Mr. Manuel’s allegations as true, but found that he did not meet “the high
evidentiary burden” to “grant a new trial or even to merit [the district court]
conducting a hearing on his request for a new trial.” (App. 36). With respect to his
claim of implied bias, the district court observed that this Court has never expressly
adopted the “implied bias” test, but found that, even if it were to use the implied bias
test, Mr. Manuel had not “alleged any extreme case of bias here.” Id. Therefore,
the district court denied the Motion for New Trial. (App. 37). This appeal follows.
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SUMMARY OF THE ARGUMENT
The district court committed two reversible errors. First, the district court
erred when it denied Mr. Manuel’s motion for new trial without conducting an
evidentiary hearing. A litigant is entitled to a new trial when (1) a juror answers voir
dire questions dishonestly, not just inaccurately; (2) the juror was motivated by
partiality; and (3) that the true facts, if known, would have supported striking the
juror for cause. McDonough Power Equipment, Inc. v. Greenwood, 464 U.S. 548
(1984).
Mr. Manuel alleged that two jurors demonstrated partiality by dishonestly
answering questions in jury selection. Juror W concealed a close familial
relationship with one of Mr. Manuel’s witnesses, failed to disclose that he coached
and taught Mr. Manuel’s own son throughout junior high and high school, and never
mentioned that he witnessed a criminal act on the part of another of Mr. Manuel’s
witnesses. Juror C, likewise, concealed the fact that Ms. Strothers was a former rival
for the affection of her husband, and failed to disclose that, at the time of trial, she
taught an autistic son of one of Mr. Manuel’s other witnesses.
Concealing these relationships is evidence of both dishonesty and partiality,
particularly in the case of Juror W, who disclosed unobjectionable ties to two other
witnesses, but failed to disclose closer relationships with three of Manuel’s
witnesses. Mr. Manuel would have moved to strike both jurors for cause had he
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known the true facts. Therefore, Mr. Manuel met the test for a new trial under
McDonough. Even if Mr. Manuel failed the McDonough test, remand would still be
appropriate under the “implied bias” test because Juror W was a cousin of a
participant, and consanguinity is the classic example of implied bias. Thus, at the
very least, Mr. Manuel was entitled to an evidentiary hearing to allow him to
establish juror bias.
The district court also plainly erred when it allowed Mr. Eley to offer an
opinion based on the “negative corpus” method for determining the cause of a fire.
This error was plain: counsel for Mr. Manuel confronted the witness with NFPA
921, the same source that the expert claimed to apply in conducting his analysis.
Though the expert claimed not to rely on negative corpus, his own testimony
established that his opinion rested on this methodology. The district court, as an
evidentiary gatekeeper, should have stricken this discredited, unscientific and
unreliable expert testimony.
This error affected Mr. Manuel’s substantial rights. But for Mr. Eley’s
testimony, MDOW adduced no evidence that the fire was intentionally set, let alone
caused by Mr. Manuel, who was in Las Vegas with his family at the time of ignition.
Finally, affirming solely on the basis of inadmissible expert testimony would result
in a miscarriage of justice. Thus, this Court should reverse the plain error and
remand this case for a new trial.
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ARGUMENT
I. THE DISTRICT COURT ERRED WHEN IT DENIED MR.
MANUEL’S MOTION FOR NEW TRIAL WITHOUT
CONDUCTING AN EVIDENTIARY HEARING.

A. Standard of Review
This court reviews the denial of a motion for new trial under the abuse of
discretion standard. United States v. Tucker, 137 F.3d 1016, 1030 (8th Cir. 1998)
(“Tucker I”). The “district court has broad discretion in handling allegations that
jurors have not answered voir dire questions honestly,” and this Court should
ordinarily “defer to its discretion in deciding whether a post-trial hearing is
necessary.” Id. “That discretion is not unlimited, however, and a movant who makes
a sufficient showing of McDonough-type irregularities is entitled to the court’s help
in getting to the bottom of the matter.” Id.
Courts apply the de novo standard of review where the movant raises a claim
of implied juror bias. United States v. Mitchell, 690 F.3d 137, 142 (3d Cir. 2012).
“Because implied bias deals in categories prescribed by law, the question whether a
juror’s bias may be implied is a legal question, not a matter of discretion for the trial
court.” Id.
B. Argument on the Merits
The district court abused its discretion when it denied Mr. Manuel’s request
for a new trial without holding an evidentiary hearing. Under McDonough, a party
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is entitled to a new trial when (1) a juror answers voir dire questions dishonestly, not
just inaccurately; (2) the juror was motivated by partiality; and (3) that the true facts,
if known, would have supported striking the juror for cause. See McDonough, 464
U.S. at 556; see also Tucker I, 137 F.3d at 1030.
In most cases, the “honesty or dishonesty of a juror’s response is the best
initial indicator of whether the juror in fact was impartial.” McDonough, 464 U.S.
at 556 (Blackmun, J., concurring). “A court must excuse a prospective juror if actual
bias is discovered during voir dire. Bias can be revealed by a juror’s express
admission of that fact, but more frequently, jurors are reluctant to admit actual bias,
and the reality of their biased attitudes must be revealed by circumstantial evidence.”
United States v. Allsup, 566 F.2d 68, 71 (9th Cir. 1977) (emphasis added).
Thus, as in Allsup, most circuit courts of appeals have presumed or implied
bias in exceptional cases where a juror has such a close relation to a case that he or
she should be deemed biased without regard to subjective state of mind or “actual
bias.” See generally McDonough, 464 U.S. at 556-57 (Blackmun, J., concurring) and
558 (Brennan, J., concurring in judgment); Smith v. Phillips, 455 U.S. 209, 222
(1982) (O’Connor, J., concurring); United States v. Tucker, 243 F.3d 499 (8th Cir.
2001) (“Tucker II”) (collecting cases and discussing presumed or implied bias, but
declining to decide whether to adopt test); see also Mitchell, 690 F.3d at 144 (3d Cir.
2012) (“most Courts of Appeals endorse the view that the implied bias doctrine
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16

retains its vitality”). In any case, a “movant who makes a sufficient showing of
McDonough-type irregularities is entitled to the court’s help in getting to the bottom
of the matter.” Tucker I, 137 F.3d at 1030.
On the facts of this case, the district court should have, at the very least, held
an evidentiary hearing. Tucker I is instructive. The defendant in Tucker I filed a
motion for a new trial after he learned that one of the jurors had failed to disclose
during voir dire that she was engaged to marry a former state prisoner to whom the
defendant, as governor, denied clemency. The defendant’s motion contained detailed
factual allegations of the juror’s relationship to the former prisoner, and included an
allegation that the juror had received extraneous evidence from a third-party during
trial. Tucker I, 137 F.3d at 1023-25.
The district court conducted a hearing on the matter, but limited the scope of
the hearing to the extraneous evidence issue and did not allow the defendant to put
on evidence relating to the concealed juror bias claim. Id. at 1026. On appeal, this
Court held that the defendant made a sufficient showing to entitle him to a
McDonough “concealed juror bias hearing” and remanded the case so that the district
court could hold such a hearing. Id. at 1028.
Here, as in Tucker I, Mr. Manuel alleged specific facts that could give rise to
a finding of “actual bias,” but was not allowed to explore the bias of Juror W and
Juror C through an evidentiary hearing. Specifically, Mr. Manuel claimed that Juror
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17

W concealed the fact that he was the cousin of one of Mr. Manuel’s witnesses, and
that weeks before trial, they both attended a family funeral together. As Mr. Manuel
noted in his brief on this point, close familial relationships sometimes engender
negative emotions, so an evidentiary hearing was necessary to allow Mr. Manuel to
explore whether or not this juror harbored actual bias against Mr. Manuel or his
witness.
Not only did Juror W fail to disclose this close familial relationship, he also
failed to disclose the fact that (1) he coached and taught Mr. Manuel’s son, who
testified during the trial; and (2) he broke up a fight involving a knife carried by
another witness for Mr. Manuel, which, as noted, is a criminal act. These instances
of dishonesty establish a pattern of dissembling: Juror W failed to disclose a
relationship with three separate witnesses, a pattern, which, if exposed, would
undoubtedly have given rise to a challenge for cause.
However, this same juror was candid about his more innocuous relationships
with Tawanna Manuel and Brett Ford, relationships that would not prevent him from
sitting on the jury. This gives rise to a natural inference that Juror W was (1)
dishonest about his ties to the case, but sought to remain on the jury; (2) his
dishonesty is evidence of actual bias against Mr. Manuel; and (3) Mr. Manuel would
have attempted to strike this juror for cause if the true facts were known.
The same can be said with respect to Juror C, who failed to disclose her
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18

relationship to a life-long friend, who, as it happened, was once engaged to marry
her husband. The record does not reveal Juror C’s true feelings about Ms. Strother,
but common sense dictates that this juror could harbor actual bias against her former
rival at trial. Juror C also failed to disclose that she taught the autistic son of another
witness. Thus, as in the case of Juror W, Mr. Manuel made a “sufficient showing of
McDonough-type irregularities” to require the “court’s help in getting to the bottom
of the matter.” Tucker I, 137 F.3d at 1030.
Finally, though this Court has not decided whether to adopt an implied bias
test, Mr. Manuel alleged sufficient facts under Third Circuit precedent to warrant
remand for an evidentiary hearing on whether Juror W had a sufficiently close
relationship with a participant to presume bias. United States v. Mitchell, 690 F.3d
137 (3d Cir. 2012). In Mitchell, the defendant claimed that a juror failed to disclose
that he was the cousin of the prosecutor. The Third Circuit noted that “consanguinity
is the classic example of implied bias,” and, even under plain error review, found
that a remand was necessary for a determination as to whether the relationship was
close enough to give rise to implied bias. Id. at 145, 147. This Court should reach
the same conclusion here because Juror W and a witness to the proceedings were
cousins, who attended a funeral together weeks before trial. Accordingly, the district
court erred when it denied Mr. Manuel’s motion without holding a hearing.

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19

II. THE DISTRICT COURT PLAINLY ERRED WHEN IT
PERMITTED MDOW TO RELY ON AN EXPERT OPINION
FORMED USING THE DISCREDITED AND UNSCIENTIFIC
“NEGATIVE CORPUS” METHODOLOGY.

A. Standard of Review
“A district court enjoys wide discretion in ruling on the admissibility of
proffered evidence, and evidentiary rulings should only be overturned if there was a
clear and prejudicial abuse of discretion.” Cole v. Homier Distributing Co., Inc., 599
F. 3d 856, 865 (8th Cir. 2010). However, where a party fails to raise an objection,
this Court’s review is limited to plain error. McKnight v. Johnson Controls, Inc., 36
F. 3d 1396 (8th Cir. 1994). “Under plain error review, an error not identified by a
contemporaneous objection is grounds for reversal only if the error prejudices the
substantial rights of a party and would result in a miscarriage of justice if left
uncorrected.” Rush v. Smith, 56 F.3d 918, 922 (8th Cir.1995) (en banc).
B. Argument on the Merits
The district court plainly erred when it permitted Mr. Eley to rely on the
“negative corpus” method for determining the cause of a fire. Federal Rule of
Evidence 702, which governs the admissibility of expert testimony, provides:
A witness who is qualified as an expert by knowledge, skill,
experience, training, or education may testify in the form of an opinion
or otherwise if: (a) the expert’s scientific, technical, or other specialized
knowledge will help the trier of fact to understand the evidence or to
determine a fact in issue; (b) the testimony is based on sufficient facts
or data; (c) the testimony is the product of reliable principles and
methods; and (d) the expert has reliably applied the principles and
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20

methods to the facts of the case.

FED. R. EVID. 702.
“The main purpose of Daubert exclusion is to prevent juries from being
swayed by dubious scientific testimony.” In re Zurn Pex Plumbing Prods. Liab.
Litig., 644 F.3d 604, 613 (8th Cir. 2011). Thus, the district court must serve as a
“gatekeeper,” that ensures an “expert’s testimony both rests on a reliable foundation
and is relevant to the task at hand.” (quoting Kumho Tire Co. v. Carmichael, 526
U.S. 137, 141 (1999)). Though a district court is given considerable latitude in
determining whether an expert meets these requirements, the “assumption of the
gatekeeper role is mandatory, not discretionary.” Russell v. Whirlpool Corp., 702 F.
3d 450, 456 (8th Cir. 2012) (citing Daubert, 509 U.S. at 592-93).
NFPA 921 qualifies as “a reliable method endorsed by a professional
organization.” Fireman’s Fund Ins. Co. v. Canon U.S.A., Inc., 394 F.3d 1054, 1058-
59 (8th Cir. 2005). While NFPA 921 is not the only reliable way to investigate a
fire, this Court’s precedent establishes that “an expert who purports to follow NFPA
921 must apply its contents reliably.” Russell, 702 F. 3d at 455 (citing Presley v.
Lakewood Eng’g, 553 F.3d 638, 645 (8th Cir. 2009) and Fireman’s Fund Ins. Co. v.
Canon U.S.A., Inc., 394 F.3d at 1058-59).
In Presley, for example, an expert claimed he followed NFPA 921, but
conducted no testing to support his theory of ignition. Presley, 553 F.3d at 645. The
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21

district court found the expert did not apply NFPA 921 reliably because the treatise
“requires that hypotheses of fire origin must be carefully examined against empirical
data obtained from fire scene analysis and appropriate testing.” Id. This Court
affirmed the exclusion of his expert testimony. Id.
Here, Mr. Eley purported to apply NFPA 921, but did so in an unreliable
fashion, because his opinion was derived from the discredited “negative corpus”
methodology. NFPA 921 § 18.6.5 (2011), provides:
The process of determining the ignition source for a fire, by
eliminating all ignition sources found, known, or believed to have been
present in the area of origin, and then claiming such methodology is
proof of an ignition source for which there is no evidence of its
existence, is referred to by some investigators as “negative corpus.”
Negative corpus has typically been used in classifying fires as
incendiary, although the process has also been used to characterize fires
classified as accidental. This process is not consistent with the Scientific
Method, is inappropriate, and should not be used because it generates
un-testable hypotheses, and may result in incorrect determinations of
the ignition source and first fuel ignited. Any hypotheses formulated for
the causal factors (e.g., first fuel, ignition source, and ignition
sequence), must be based on facts. Those facts are derived from
evidence, observations, calculations, experiments, and the laws of
science. Speculative information cannot be included in the analysis.

NFPA 921 § 18.6.5 (2011) (emphasis added).
Mr. Eley testified that he arrived at his opinion through a “process of
elimination.” Id. at 221; 227. He explained that:
There was nothing on, no appliances. There was no physical
evidence that any of those appliances failed and caused the fire. The
electrical wiring did exactly what I would have expected it to do. After
looking at 8,000 fires, when you have a fire of that magnitude, it’s going
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22

to short and melt that wire in the area where it starts. And beyond that,
there’s not going to be any.

I had a conversation with Mr. Manuel. And he told me that
nothing was left on, no problems with anything in the house, had no
idea how the fire could have started, no new appliances or anything of
that nature that had been installed in there right before the fire. So based
on all of that information that I obtained from the homeowner, as well
as what I found from my own fire scene examination, I determined that
the fire should be classified as an incendiary fire, an intentionally set
fire.

Id. at 227-28.
There is no principled way of distinguishing Mr. Eley’s method from negative
corpus, which is characterized as the inappropriate use of process of elimination.
Mr. Eley repeatedly described his own method as “process of elimination.” He also
stated that, “when you go by a process of elimination, you eliminate everything
except an incendiary fire cause.” (App. 93).
The problem with this method, as recognized in NFPA 921, is that there is
simply no way to test Mr. Eley’s hypothesis that someone intentionally set the fire.
NFPA 921 § 18.6.5 (2011) (negative corpus “generates un-testable hypotheses”);
see also Daubert, 509 U.S. at 593 (a “key question” to theory reliability is “whether
it can be (and has been) tested”). For this reason, the “application of negative corpus
as the sole basis for a finding of arson violates [Rule] 702.” People v. Pruitt, No.
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23

313065, 2014 WL 1320253 (Mich. Ct. App. Apr. 1, 2014).2
Based on the foregoing, it is clear that the district court erred, and it erred
plainly when it abdicated its gatekeeping function and permitted unreliable expert
testimony to reach the jury. It is equally clear that the error prejudiced Mr. Manuel’s
the substantial rights. But for Mr. Eley’s testimony, MDOW adduced no evidence
that the fire was intentionally set, let alone caused by Mr. Manuel, who was in Las
Vegas with his family at the time of ignition. Thus, the jury verdict rests entirely on
inadmissible speculation masquerading as expert testimony. Affirming on this basis
would be a miscarriage of justice. Accordingly, this Court should reverse the entry
of judgment and remand for a new trial.

2 Michigan Rule of Evidence 702 does not materially differ from the federal standard
under Rule 702. Compare MICH. R. EVID. 702 with FED. R. EVID. 702. “In fact, the
trial court’s obligation under MRE 702 is even stronger than that contemplated by
FRE 702 because Michigan’s rule specifically provides that the court’s
determination is a precondition to admissibility.” Gilbert v. DaimlerChrysler Corp.,
685 N.W.2d 391, 408 n.46 (Mich. 2004).
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24

CONCLUSION
Based upon the foregoing arguments and legal authority, Plaintiff-Appellant,
KIRK MANUEL, respectfully requests that this Honorable Court vacate the entry
of judgment and remand this matter for further proceedings.

DATED this 8th day of December, 2014.
Respectfully submitted,

/s/ Andrew B. Greenlee
Andrew B. Greenlee, Esq.
ANDREW B. GREENLEE, P.A.
Florida Bar No. 96365
401 East 1st Street
Unit 261
Sanford, Florida 32772
(407) 808-6411
andrew@andrewgreenleelaw.com
Counsel for Plaintiff-Appellant

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that on this 8th day of December, 2014, I filed the
foregoing with the Clerk of the Court and served opposing counsel with a copy via
CM/ECF.

/s/ Andrew B. Greenlee
Andrew B. Greenlee, Esquire

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25

CERTIFICATE OF COMPLIANCE
I HEREBY CERTIFY that the foregoing brief complies with the type-volume
limitation of Fed. R. App. P. 32(a)(7)(B). I FURTHER CERTIFY that, pursuant to
Eighth Circuit Rule 28A(h)(2), the Opening Brief and addendum have been scanned
for viruses and that the documents are virus-free.
/s/ Andrew B. Greenlee
Andrew B. Greenlee, Esquire
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CASE NO. 14-3092
_________

IN THE UNITED STATES COURT OF APPEALS
FOR THE EIGHTH CIRCUIT
__________

KIRK MANUEL, APPELLANT

v.

MDOW INSURANCE COMPANY, APPELLEE
__________

ON APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF ARKANSAS
HELENA DIVISION

BRIEF OF THE APPELLEE

MUNSON, ROWLETT, MOORE &
BOONE, P. A.
MARK BREEDING
ASHLEIGH D. PHILLIPS
400 W. CAPITOL, SUITE 1900
LITTLE ROCK, AR 72201
501/374-6535- telephone

Counsel for Appellee

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2

SUMMARY OF THE CASE

This litigation arises from MDOW Insurance Company’s denial of
Kirk Manuel’s insurance claim following a fire at his residence on the
basis that Manuel either burned the home or caused it to be burned and
intentionally concealed or misrepresented material facts during
MDOW’s investigation of the claim.
During trial, MDOW presented evidence in support of its defenses
to its denial of Manuel’s claim, including testimony from an origin and
cause expert that the fire was incendiary in origin. Manuel did not
object to this testimony at trial but now seeks a finding that its
admission was plain error.
The Jury rendered a unanimous verdict in favor of MDOW.
Manuel then filed a Motion for New Trial, predicated on alleged
concealed jury bias. The District Court found that Manuel did not meet
his evidentiary burden to warrant a new trial or an evidentiary hearing
on the Motion. Manuel appeals this ruling.

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3

MDOW believes that oral argument of no more than 15 minutes
per side would assist the Court in resolving the issues on appeal.
CORPORATE DISCLOSURE STATEMENT
MDOW Insurance Company states it is a wholly-owned, direct or
indirect subsidiary of Columbia Lloyds Insurance Company, a privately
held company. No publicly held corporation owns ten percent or more of
the stock of MDOW Insurance Company.

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4

TABLE OF CONTENTS
SUMMARY OF THE CASE ……………………………………………………. 2
CORPORATE DISCLOSURE STATEMENT ……………………………. 3
TABLE OF CONTENTS …………………………………………………………. 4
TABLE OF AUTHORITIES ……………………………………………………. 5
STATEMENT OF ISSUES ……………………………………………………… 7
STATEMENT OF FACTS ……………………………………………………….. 8
SUMMARY OF THE ARGUMENT ……………………………………….. 13
ARGUMENT ………………………………………………………………………… 15
I. THE DISTRICT COURT DID NOT ABUSE
ITS DISCRETION WHEN IT DENIED MR.
MANUEL’S MOTION FOR NEW TRIAL
WITHOUT CONDUCTING AN
EVIDENTIARY HEARING …………………………… 15

II. THE DISTRICT COURT DID NOT COMMIT PLAIN
ERROR WHEN IT ADMITTED THE TESTIMONY OF
MDOW’S EXPERT ……………………………………… 33

CONCLUSION …………………………………………………………………….. 48

CERTIFICATE OF COMPLIANCE ……………………………………….. 49

CERTIFICATE OF SERVICE ……………………………………………….. 50

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5

TABLE OF AUTHORITIES

CASES

Anderson v. City of Bessemer City, 470 U.S. 564 (1985) ………………….. 20
Brown v. United States, 411 U.S. 223 (1973) ………………………………….. 15
Depositors Ins. Co. v. Hall’s Rest., Inc., 2014 U.S. Dist.
LEXIS 39717 (E.D. Mo. 2014) ……………………………………………………….. 44

Hickerson v. Pride Mobility Prods. Corp.,
470 F.3d 1252 (8th Cir. 2006) ……………………………………………………….. 39
In re Zurn Pex Plumbing Prods. Liab. Litig., 665 F.3d 604
(8th Cir. 2011) …………………………………………………………………………….. 39

Lopez v. Aramark Unif. & Career Apparel, Inc.,
417 F. Supp. 2d 1062 (N.D. Iowa 2006) ……………………………….. 16, 18, 19

Lopez v. Tyson Foods, Inc., 690 F.3d 869 (8th Cir. 2012) ………………… 33
McDonough Power Equipment v. Greenwood,
446 U.S. 548 (1984) ……………………………………………………………. 15, 16, 17
Moran v. Clarke, 443 F.3d 646 (8th Cir. 2006) ……………………………….. 17
Peterson v. Miller, 854 F.2d 656 (4th Cir. 1988) ……………………………… 32
Presley v. Lakewood Eng’g & Mfg. Co., 553 F.3d 638
(8th Cir. 2009) …………………………………………………………………………….. 34
Russell v. Whirlpool Corp., 702 F.3d 450
(8th Cir. 2012) …………………………………………….. 34, 35, 36, 37, 38, 39, 45
Sanders v. Norris, 529 F.3d 787 (8th Cir. 2008) …………………… 31, 32, 33
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6

Schaub v. VonWald, 638 F.3d 905 (8th Cir. 2011) ………………………….. 33
Shuck v. CNH America, 498 F.3d 868 (8th Cir. 2007) …………………….. 38
Smith v. Phillips, 455 U.S. 209 (1982) …………………………………………… 33
United States v. Angulo, 4 F.3d 843 (9th Cir. 1993) …………………………. 18
United States v. Bascope-Zurita, 68 F.3d 1057 (8th Cir. 1995) …………. 17
United States v. Caldwell, 83 F.3d 954 (8th Cir. 1996) …………………….. 18
United States v. Davis, 690 F.3d 912 (8th Cir. 2012) ………………………. 27
United States v. Ruiz, 446 F.3d 762 (8th Cir. 2006) ………………………… 16
United States v. Tucker, 137 F.3d 1016 (8th Cir. 1998) ………… 17, 18, 19
United States v. White Bull, 646 F.3d 1082 (8th Cir. 2011) …………….. 18
Unrein v. Timesavers, Inc., 394 F.3d 1008 (8th Cir. 2005) ………………. 35
Walzer v. St. Joseph State Hosp., 231 F.3d 1108 (8th Cir. 2001) ……… 18
Young v. Allstate Ins. Co., 759 F.3d 836 (8th Cir. 2014) ………………….. 33
STATUTES AND RULES
Federal Rule of Evidence 702 ………………………………………………………… 34

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STATEMENT OF THE ISSUES

I. Whether the District Court correctly denied Manuel’s Motion
for New Trial based on its finding that Manuel did not meet his burden
of proving concealed juror bias to warrant a new trial or an evidentiary
hearing on Manuel’s Motion for New Trial.
 McDonough Power Equip. v. Greenwood, 446 U.S. 548
(1984).
 United States v. Tucker, 137 F.3d 1016 (8th Cir. 1998).

II. Whether the District Court committed plain error by
admitting MDOW’S expert testimony regarding the cause and origin of
the fire at issue.
 Russell v. Whirlpool Corp., 702 F.3d 450 (8th Cir. 2012).
 Shuck v. CNH America, 498 F.3d 868 (8th Cir. 2007).
 Hickerson v. Pride Mobility Prods. Corp., 470 F.3d 1252 (8th
Cir. 2006).

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8

STATEMENT OF FACTS

On September 14, 2011, Manuel’s residence was destroyed by fire.
See App. 12. At the time of the fire, Manuel’s residence was insured
under a homeowner’s insurance policy issued by MDOW Insurance
Company (“MDOW”). See App. 12. Manuel brought a breach of
contract claim against MDOW arising from its denial of his claim
following the fire. App. 12. MDOW denied the claim on the basis that
Manuel burned his home or caused it to be burned and intentionally
concealed or misrepresented material facts during the investigation of
the claim. Sep. App. 2-3.
During jury selection, the Court informed the potential jury panel
that the parties were entitled to a trial before a fair, unbiased and
impartial jury. Sep. App. 24. The Court further informed the panel
that the attorneys wanted to know about their relationship to the
parties or their attorneys, any personal interest they may have in the
case, and anything that might make them prejudiced for or against a
party. Sep. App. 24. The Court then read out a list of anticipated
witnesses and asked the panel whether they had a business
relationship, social relationship, familial relationship, or any sort of tie
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9

or connection to the potential witnesses. Sep. App. 32-33. At that point
in the trial, no juror indicated that he or she had any connection with
prospective witnesses Deangelo Manuel, Corey Watson, Jacqueline
Strother, Nicholas Skinner, Melissa Cartwright, or Tawanna Manuel.
Sep. App. 33. Juror W, who Mr. Manuel contends on appeal should
have been struck for cause, did indicate he did know potential witness
Brett Ford because he taught him in high school. Sep. App. 34. At this
point, Juror W informed the Court and the parties that he retired from
teaching in 2010 and he believed he may have taught Ford in around
2007 or 2008. Sep. App. 34. He stated that there was nothing about his
relationship with Ford that would make it difficult for him to listen to
the evidence that is presented and decide the case based on the
evidence and the law, being fair and impartial to both sides. Sep. App.
34. Manuel did not move to strike Juror W on the basis of this
relationship.
Preliminary instructions were then given by the Court, during
which the Court informed the jury that they must keep their mind open
and free of outside information. Sep. App. 70. The Court informed the
jury that only in this way will they be able to decide the case fairly
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based solely on the evidence and the instructions on the law and that, if
they decide the case on anything else, they will have done an injustice.
Sep. App. 70.
During trial, the jury heard testimony from a number of witnesses
regarding Manuel’s financial motive for causing the fire, discrepancies
in the contents he claimed were damaged by the fire, and circumstances
regarding Manuel and his family’s location and activities at the time of
the fire. In addition, the jury heard testimony from MDOW’s origin and
cause expert, Rick Eley. App. 44. Eley conducted the fire investigation
at issue on September 20, 2011. App. 44. He testified that, based on
his examination and investigation, the fire originated in the floor area
of the southeast corner of the home and was incendiary in origin. App.
46 & 50-51. He testified that this opinion was based on his observation
of the area that sustained the most significant damage, arc mapping,
his observation of oxidation patterns, his examination of the home’s
appliances that ruled them out as a potential cause, and his elimination
of the home’s electrical wiring as a potential cause. App. 45-46, 50, 53,
60-70. Eley testified that, through his investigation, he eliminated
every potential cause of the fire except incendiarism. App. 98. Manuel
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cross-examined Eley on his position that Eley impermissibly employed
“negative corpus” but never sought to exclude or strike Eley’s testimony
on these grounds. See App. 108.
Following the three-day jury trial, twelve jurors unanimously
concluded that MDOW Insurance Company proved by a preponderance
of the evidence that Kirk Manuel either burned his home or caused it to
be burned. See Sep. App. 6.
Manuel filed a Motion for New Trial predicated on a theory of
concealed jury bias. See App. 19. The Motion submitted affidavits of
Manuel’s witnesses who claimed to have previously undisclosed
relationships with two juror members. Significantly, two of the
witnesses that Manuel predicated his Motion for New Trial on, Nicholas
Skinner and Melissa Cartwright, were not even called to testify at trial.
App. 25. Another witness claimed to have known Juror W because he
was a coach and teacher at his high school and he was introduced to the
juror by his mother. App. 132. During trial, this juror acknowledged
his knowledge of this witness’ mother and yet, counsel for Mr. Manuel
confirmed he nonetheless had no problem with the jury. App. 132-133.
The Motion for New Trial was also predicated on witness Jackqueline
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Strother’s claim that she went to school with Juror C. App. 29. After
Strother’s testimony, a different juror informed the Judge that she had
recognized Strother during her testimony. Sep. App. 126-127. This
juror informed the Court and Mr. Manuel that, like Juror C, she had
gone to school with Ms. Strother. Sep. App. 128. Counsel for Mr.
Manuel informed the Court that he did not have any problem with this
juror. Sep. App. 128.
On July 29, 2014, the Court entered an Order denying Manuel’s
Motion for New Trial. See App. 34-37. The Court held that Mr. Manuel
did not meet the high evidentiary burden to grant a new trial or even to
merit this Court’s conducting a hearing on his request for a new trial.
See App. 34-37. The Court also held that, even were it to adopt the
implied bias test, Manuel has not alleged any extreme case of bias here.
See App. 34-37.

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SUMMARY OF THE ARGUMENT

The Jury Verdict rendered in favor of MDOW, finding that MDOW
proved by a preponderance of the evidence that Kirk Manuel either
burned his home or caused it to be burned, should be affirmed as the
District Court committed no reversible error.
In the present case, the District Court did not abuse its broad
discretion when it found that Manuel did not meet the high evidentiary
burden set forth in McDonough and Tucker I to grant a new trial or
even to merit the Court conducting a hearing on his request for a new
trial. It properly found that the affidavits relied upon by Manuel in
support of his Motion for New Trial failed to make a sufficient showing
of McDonough-type irregularities to require an evidentiary hearing to
further address the issue. The trial testimony of the witnesses alleged
to have undisclosed relationships with two jurors, the tenuous nature of
these alleged relationships, and the parties’ handling of the comparable
witness/juror relationships that were not concealed reveal that the
alleged relationships were remote, casual, and do not provide any proof
that, even if true, the jurors had concealed bias, actual or implied,
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sufficient to warrant a finding that the case was not tried to an
impartial jury and should be re-tried.
In addition, the District Court committed no plain error as a
result of the admission of the testimony of MDOW’s origin and cause
expert, Rick Eley. Notably, no objection to this testimony was made at
trial. Regardless, the opinion testimony of Rick Eley satisfied the
standards of reliability and relevancy required for admissibility. In this
regard, Eley’s opinions were based on an investigation that was in
conformance with generally accepted fire science methodology and
investigation practice which has been confirmed by the Eighth Circuit
as being acceptable. Further, any criticisms of regarding Eley’s opinion
do not give rise to plain error as a result of their admission because the
very criticisms were utilized during a vigorous cross-examination of
Eley.

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ARGUMENT

I. The District Court Did Not Abuse Its Discretion When It
Denied Mr. Manuel’s Motion for New Trial Without Conducting
An Evidentiary Hearing

The District Court did not abuse its discretion when it concluded
that Manuel failed to meet his evidentiary burden to prove concealed
juror bias in order to grant a new trial or even to merit the Court
conducting a hearing on his request for a new trial. See App. 34-37.
The issue of concealed juror bias was addressed by the United
States Supreme Court in McDonough Power Equipment v. Greenwood,
446 U.S. 548 (1984). In McDonough, the Court noted that “a litigant is
entitled to a fair trial but not a perfect one, for there are no perfect
trials.” McDonough Power Equip. v. Greenwood, 446 U.S. 548, 553
(1984) (quoting Brown v. United States, 411 U.S. 223, 231-232 (1973)).
The Court further noted that “[t]rials are costly, not only for the parties,
but also for the jurors performing their civic duty and for society which
pays the judges and support personnel who manage the trials” and “[i]t
seems doubtful that our judicial system would have the resources to
provide litigants with perfect trials, were they possible, and still keep
abreast of its constantly increasing caseload.” McDonough Power
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Equip., 446 U.S. at 553 (1984). In addition, the Court stated that, to
invalidate the result of a trial “because of a juror’s mistaken, though
honest, response to a question, is to insist on something closer to
perfection than our judicial system can be expected to give” and “it ill
serves the important end of finality to wipe the slate clean simply to
recreate the peremptory challenge process because counsel lacked an
item of information which objectively he should have obtained from a
juror on voire dire examination.” Id. at 558.
Thus, pursuant to the standard set forth in McDonough, the
Eighth Circuit has held that “a party seeking a new trial on the basis of
a concealed juror bias must prove three things: (1) that the juror
answered dishonestly, not just inaccurately; (2) that the juror was
motivated by partiality; and (3) that the true facts, if known, would
have supporting striking the juror for cause.” United States v. Ruiz, 446
F.3d 762, 770 (8th Cir. 2006) (citing McDonough Power Equipment, Inc.
v. Greenwood, 464 U.S. 548 (1984)). See also Lopez v. Aramark Unif. &
Career Apparel, Inc., 417 F. Supp. 2d 1062, 1068 (N.D. Iowa 2006) (this
standard “requires consideration of whether or not the juror could have
honestly believed that no response to the pertinent voire dire question
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was required” and or “whether the answer (or presumably, the lack of
an answer), was reasonable”).
This standard recognizes that, “[t]he motives for concealing
information may vary, but only those reasons that affect a juror’s
impartiality can truly be said to affect the fairness of a trial.”
McDonough Power Equipment, Inc. v. Greenwood, 464 U.S. 548, 556
(1984). It is also worth noting that “courts presume that a prospective
juror is impartial, and a party seeking to strike a venire member for
cause must show that the prospective juror is unable to lay aside his or
her impressions or opinions and render a verdict based on the evidence
presented in court.” Moran v. Clarke, 443 F.3d 646, 650 (8th Cir. 2006).
“Essentially, to fail this standard, a juror must profess his inability to
be impartial and resist any attempt to rehabilitate his position.” Id. at
650-651. “To challenge for cause, a party must show actual partiality
growing out of the nature and circumstances of the particular case.”
United States v. Tucker, 137 F.3d 1016, 1029 (8th Cir. 1998) (Tucker I)
(quoting United States v. Bascope-Zurita, 68 F.3d 1057, 1063 (8th Cir.
1995)).

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The Eighth Circuit has recognized the need to “afford a large
measure of deference to the trial judge’s judgment” in “refusing to grant
an evidentiary hearing” on a motion for new trial predicated on
concealed juror bias. See Walzer v. St. Joseph State Hosp., 231 F.3d
1108, 1113 (8th Cir. 2001). In this regard, “[a] district court is not
obligated to conduct an evidentiary hearing each time there is a
possibility of juror bias.” United States v. White Bull, 646 F.3d 1082,
1095 (8th Cir. 2011); Lopez v. Aramark Unif. & Career Apparel, Inc.,
417 F. Supp. 2d 1062, 1067 (N.D. Iowa 2006) (citing United States v.
Caldwell, 83 F.3d 954, 957 (8th Cir. 1996) (“The mere fact that post-
verdict allegations of juror bias or misconduct are made does not
automatically entitle the moving party to an evidentiary hearing”).
“Rather, in considering whether an evidentiary hearing is necessary, a
district court should consider numerous factors, including ‘the content
of the allegations, the seriousness of the alleged misconduct or bias, and
the credibility of the source.’” White Bull, 646 F.3d at 1095 (quoting
United States v. Angulo, 4 F.3d 843, 847 (9th Cir. 1993)). See also
United States v. Tucker, 137 F.3d 1016, 1026 (8th Cir. 1998) (Tucker I)
(“The district court has broad discretion in handling allegations that
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jurors have not answered voir dire questions honestly” and the Eighth
Circuit “defer[s] to its discretion in deciding whether a post-trial
hearing is necessary”). Such a determination of “whether an allegation
of juror misconduct based on concealed bias even warrants further
investigation” is necessary because “[n]eedless post-trial interviews of
jurors” could “impede the deliberation process of the jury or lead to juror
harassment” and would “seriously threaten the effectiveness and
undermine our current jury system.” Lopez, 417 F. Supp. 2d at 1067
(“[L]imitations on judicial resources preclude the courts from ferreting
out every allegation of possible bias or guaranteeing perfection during
trial”).
A movant must, therefore, make “a sufficient showing of
McDonough-type irregularities” to be entitled “to the court’s help in
getting to the bottom of the matter.” United States v. Tucker, 137 F.3d
1016, 1026 (8th Cir. 1998) (Tucker I). If, however, “the district court’s
account of the evidence is plausible in light of the record viewed in its
entirety, the court of appeals may not reverse it even though convinced
that had it been sitting as the trier of fact, it would have weighed the
evidence differently.” United States v. Tucker, 243 F.3d 499, 506 (8th
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Cir. 2001) (quoting Anderson v. City of Bessemer City, 470 U.S. 564,
573-74 (1985)).
In the present case, the District Court did not abuse its broad
discretion when it found that Manuel did not meet the high evidentiary
burden set forth in McDonough and Tucker I to grant a new trial or
even to merit the Court conducting a hearing on his request for a new
trial. See App. 36. It properly found that the affidavits relied upon by
Manuel in support of his Motion for New Trial failed to make a
sufficient showing of McDonough-type irregularities to require an
evidentiary hearing to further address the issue.
Manuel’s Motion is predicated on his contention that two jurors
allegedly failed to disclose to the Court their relationships with five of
Mr. Manuel’s witnesses (two of whom were never even called to testify
at trial). A closer look at the circumstances at issue, including the trial
testimony of the witnesses, the parties’ handling of the witness/juror
relationships that were revealed, and the tenuous nature of the alleged
relationships between the witnesses and the jury members reveal that
the alleged relationships were remote, casual, and do not provide any
proof that, even if true, the jurors had concealed bias, actual or implied,
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sufficient to warrant a finding that the case was not tried to an
impartial jury and should be re-tried. Nor do they establish that the
jurors in question actually responded to questioning regarding their
knowledge of prospective witnesses in a dishonest manner or in an
attempt to deceive the Court, as there is no evidence that the two jurors
at issue knew or recalled having any connection with Manuel’s
witnesses.
Further, there is no evidence that, even if the jurors’ responses to
this questioning were dishonest, the dishonesty was motivated by
partiality. Rather, it is highly probable that the responses were
motivated by the jurors’ lack of recollection of any connection or
relationship with the witnesses being identified by name. Even
assuming the witnesses did recall the relationships, however, none of
the relationships are of the kind that would in any way suggest that the
jurors gave inaccurate answers at voire dire because of partiality,
rather than for some reason that is irrelevant to the fairness of the
trial. Manuel has no evidence, nor is there any inclination that he could
have utilized an evidentiary hearing to obtain evidence that either of
the two jurors at issue were motivated by partiality towards MDOW or
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against Manuel or that, if the alleged contacts were made known, the
jurors would have been struck for cause.
Following a three-day jury trial, twelve jurors unanimously
concluded that MDOW Insurance Company proved by a preponderance
of the evidence that Kirk Manuel has either burned his home or caused
it to be burned. See Sep. App. 6. Before this trial began, the Court
concluded voire dire. During this process, the Court informed the
potential jury panel that each and all of the parties are entitled to a
trial before a fair, unbiased and impartial jury. Sep. App. 24. The
Court informed the jury that the purpose of voire dire is for the Court to
determine whether any prospective juror should be excused for cause
and to enable counsel for the parties to exercise their individual
judgment with respect to peremptory challenges. Sep. App. 24. The
Court further informed the panel that the attorneys wanted to know
about their relationship to the parties or their attorneys, any personal
interest they may have in the case, and anything that might make them
prejudiced for or against a party. Sep. App. 24.
After reading a statement regarding the case, the Court asked the
panel if anyone had heard or read anything about the case and no juror
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23

responded that he/she had. Sep. App. 29-30. The Court asked if anyone
had communicated with the panel in any way about the case and no
juror indicated that anyone had. Sep. App. 30. No potential juror
indicated that they or their immediate family was acquainted with or
related to the Manuel or his attorney. Sep. App. 30-31. Likewise, no
juror indicated that he/she or any member of his/her immediately
family had any business or other relationship or connection with Mr.
Manuel. Sep. App. 32.
The Court then read out a list of anticipated witnesses and asked
the panel whether they had a business relationship, social relationship,
familial relationship, or any sort of tie or connection to the potential
witnesses. Sep. App. 32-33. At that point in the trial, no juror
indicated that he or she had any connection with prospective witnesses
Deangelo Manuel, Corey Watson, Jacqueline Strother, Nicholas
Skinner, Melissa Cartwright, or Tawanna Manuel. Sep. App. 33.
Significantly, however, at that time, Juror W, who Mr. Manuel contends
on appeal should have been struck for cause, indicated he did know
potential witness Brett Ford because he taught him in high school. Sep.
App. 34. At this point, Juror W informed the Court and the parties that
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he retired from teaching in 2010 and he believed he may have taught
Ford in around 2007 or 2008. Sep. App. 34. He stated that there was
nothing about his relationship with Ford that would make it difficult for
him to listen to the evidence that is presented and decide the case based
on the evidence and the law, being fair and impartial to both sides.
Sep. App. 34. Contrary to Mr. Manuel’s assertion otherwise, this
disclosure indicates both that there was no intentional dishonesty or
any failure of Juror W to identify other potential witnesses he may have
become acquainted with throughout his teaching career and that Juror
W did not conceal any potential relationships because he was motivated
by partiality. Manuel did not move to strike Juror W for cause or
otherwise utilize a peremptory challenge on Juror W on the basis of this
disclosure, which also indicates, contrary to Manuel’s assertion
otherwise, that he would not have moved to strike Juror W on the basis
of any other recognized teacher-student relationship with other
witnesses.
Plaintiff’s attorney was given an opportunity to question the jury
panel. Sep. App. 41-43. Following this, the Court asked the jury if they
could think of any other matter not already asked by the Court or the
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parties which might have some bearing upon their qualification to serve
as jurors. Sep. App. 50. Once the panel was selected, Plaintiff and
Defendant indicated that the jury was satisfactory to them. Sep. App.
59.
Preliminary instructions were then given by the Court, during
which the Court informed the jury that they must keep their mind open
and free of outside information. Sep. App. 70. The Court informed the
jury that only in this way will they be able to decide the case fairly
based solely on the evidence and the instructions on the law and that, if
they decide the case on anything else, they will have done an injustice.
Sep. App. 70.
Significantly, two of the witnesses that Manuel predicated his
Motion for New Trial on, Nicholas Skinner and Melissa Cartwright,
were not even called to testify at trial. App. 25. Skinner claimed that
Juror W taught him in Junior High School and once broke up a fight in
which Skinner was involved. App. 25. Because Skinner did not
ultimately testify at trial, it cannot be said that, if he had, Juror W
would not have recognized him and informed the Court (as he had done
with another prospective witness). Further, because Skinner did not
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ultimately testify at trial, any alleged tenuous relationship such as a
distant student/teacher relationship cannot be said to have given rise to
any partiality on the part of Juror W. Likewise, Cartwright claimed
that Juror C was one of her son’s teachers. App. 31. Even if Cartwright
had testified, which she did not, there is no indication that this
relationship would have given rise to partiality of Juror C for MDOW or
against Mr. Manuel, nor is there any indication that this relationship
would have given rise to cause to strike Juror C.
Manuel’s Motion for New Trial is also predicated on Mr. Manuel’s
son’s contention that he knew Juror W because Juror W was a coach
and teacher at the junior high and high school he attended. App. 27.
DeAngelo Manuel contends that he was introduced to Juror W by his
mother in 2004 or 2005, nearly ten years prior to the trial at issue.
App. 27. Like the relationship between Skinner and Juror W, there is
nothing about this relationship that would suggest any partiality on the
part of Juror W. Notably, during trial, Juror W acknowledged his
knowledge of DeAngelo’s mother, who was called as a witness for
MDOW. App. 132. Juror W informed the Court that he had known of
Ms. Manuel since she finished school and that he did not believe
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anything about the relationship would make it difficult for him to listen
to the evidence in the case and make a decision that is fair and
impartial to both sides. App. 133. Counsel for Mr. Manuel stated that
he had no follow-up questions for the juror and did not “have any
problem with him.” App. 133. Thus, this recognized relationship
between Juror W and DeAngelo Manuel’s mother made no difference to
Manuel. Deangelo Manuel’s contentions in this regard make no
showing that Juror W answered dishonestly; that he was motivated by
partiality; or that, if it had been known that Juror W had this
knowledge of DeAngelo Manuel, it would have supported striking Juror
W for cause. See United States v. Davis, 690 F.3d 912, 927 (8th Cir.
2012) (finding a juror’s self-disclosure of a relationship with a witness
upon recognizing the witness as a reflection of the juror’s honesty and
as evidence that foils the movant’s “unsupported claim or partiality”).
Manuel’s Motion for New Trial was also predicated in part on his
contention that Juror W was the cousin of witness Corey Watson. App.
23. In support of the Motion, Manuel submitted an Affidavit from
Watson in which he contended that Juror W was his cousin and that,
weeks before trial, they both attended Watson’s grandmother’s funeral.
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App. 23. This is insufficient evidence to necessitate a new trial for
several reasons. First, a look at Watson’s testimony at trial reveals that
he testified that he helped Mr. Manuel move into the home at issue
before it burned and regarding certain items of personal property he
observed during the move. Sep. App. 72-74. It was not disputed by
MDOW at trial that Manuel moved some property into the home at
issue although some of the particular items that were claimed to have
been moved were disputed. Second, there is no basis for the contention
that, even assuming Juror W recognized Corey Watson as his cousin,
this would have motivated Juror W to be impartial in a case between
Mr. Manuel and MDOW Insurance Company. Finally, the
circumstances of this case indicate that, even if Juror W had disclosed
that Watson was his cousin, it would not have supported striking the
juror for cause. Not only is this revealed by the incidental nature of
Watson’s testimony, but it is also revealed by the fact that Juror W
disclosed that he knew Mr. Manuel’s ex-wife during trial and Mr.
Manuel and his attorney indicated that this arguably more significant
relationship made no difference to them. It is, therefore, hard to argue
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that, had Manuel known that Juror W was the cousin of Cory Watson,
he would have successfully moved to strike him for cause.
Finally, Manuel’s Motion for New Trial was predicated on witness
Jacqueline Strother’s claim that she went to school with Juror C and
that Juror C married a man she was engaged to when she was 18-years
old. App. 29. At trial, there was testimony that Strother did
landscaping work for Mr. Manuel. Sep. App. 118. Strother testified
that, while at work at a gas station, she was notified about the fire at
issue in the litigation. Sep. App. 118-119. She testified that she later
decided to call Mr. Manuel to make sure he had been told about the fire.
Sep. App. 119. She also testified that she later went to check on the
house and saw some people present so she again called Mr. Manuel and
told him he may want to contact the Sheriff. Sep. App. 120. Given the
nature of this testimony, any potential distant/not current friendship
between Strother and Juror C does not give rise to a basis for a new
trial.
In this regard, it is significant that, after Strother’s testimony, a
different juror informed the Judge that she had recognized Strother
during her testimony. Sep. App. 126-127. This juror informed the
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Court and Mr. Manuel that, like Juror C, she had gone to school with
Ms. Strother. Sep. App. 128. Counsel for Mr. Manuel informed the
Court that he did not have any problem with this juror. Sep. App. 128.
This indicates that Juror C did not answer dishonestly or even
inaccurately when she did not indicate she knew of Ms. Strother during
voire dire. Further, there is no evidence that the fact that Juror C
might have been acquainted with Strother in the past or that she
married someone Strother was once engaged to would cause her to be
partial towards MDOW or against Mr. Manuel. In addition, the fact
that Manuel did not move to strike the other juror despite her having
gone to school with Strother further indicates that, if it had been known
that Juror C had also gone to school with Strother, she would not have
been struck for cause.
As these circumstances reveal, despite Manuel’s lack of concern
regarding tenuous witness relationships with jurors during the course
of the trial that he was aware of, after a unanimous verdict in MDOW’s
favor was rendered, Manuel sought to identify, through himself and his
own witnesses, other alleged relationships of a comparable nature in
order to claim the existence of juror bias and untruthfulness. However,
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nothing regarding the alleged relationships, disclosed by affidavits of
Appellant, two testifying witnesses, and two non-testifying witnesses
trigger the required showing to warrant an evidentiary hearing or a
new trial.
Finally, the District Court did not abuse its discretion in holding
that, even if implied bias is sometimes applicable, it did not warrant a
new trial or an evidentiary hearing in this case because the
circumstances relating to the alleged relationships between the jurors
and witnesses were not “extreme,” “extraordinary,” or “exceptional.”
See App. 34-37. The Court properly recognized that, “[a]lthough one
juror and one witness are allegedly cousins,” there were not “‘close
relatives’ such that a new trial would be warranted under the implied
bias test.” See App. 34-37.
While Eighth Circuit law has been “inconsistent as to whether
juror bias may ever be presumed,” it is clear that, even if it could be in
this Circuit, such a presumption would not be warranted given the
tenuous relationships at issue in this case. See Sanders v. Norris, 529
F.3d 787, 792 (8th Cir. 2008). In Sanders, the Court found that, even if
it assumed “that juror bias may sometimes be presumed as a matter of
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law,” it “concluded that the circumstances here cannot support such a
presumption.” Sanders, 529 F.3d at 792. The circumstances at issue in
Sanders involved a juror who, unlike the jurors at issue in this case who
allegedly had distant/tenuous acquaintances with witnesses, was a
coroner who was “present in that capacity when the police recovered the
bodies of the victims of the crimes for which [defendant] was tried,”
“arranged for autopsies of the bodies,” and, “as a mortician,” “conducted
the funeral of the victim to whom he was distantly related by
marriage.” Id. Despite the ties of the juror which are more significant
than those ties at issue in the present case, bias was not presumed.
In so holding, the Court recognized that, “[i]n those circuits that
recognize the principle of implied bias, resort to it has been limited ‘to
those extreme situations where the relationship between a prospective
juror and some aspect of the litigation is such that it is highly unlikely
that the average person could remain impartial in his deliberations
under the circumstances.” Sanders v. Norris, 529 F.3d 787, 792 (8th
Cir. 2008) (quoting Peterson v. Miller, 854 F.2d 656, 664 (4th Cir.
1988)). Examples of “exceptional or extreme situations” where implied
bias may be found are where “the juror is an actual employee of the
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prosecuting agency,” “the juror is a close relative of one of the
participants in the trial or the criminal transaction, or” “the juror was a
witness or somehow involved in the criminal transaction.” Sanders, 529
F.3d at 792-93 (quoting Smith v. Phillips, 455 U.S. 209, 222 (1982)
(O’Connor, J., concurring).
None of these situations exist here and the District Court’s denial
of Manuel’s Motion for New Trial was proper.
II. The District Court Did Not Commit Plain Error When it
Admitted The Testimony of MDOW’s Expert

Where there is no objection at trial, “the claim of error is forfeited”
and the Court of Appeals reviews “only for plain error.” Young v.
Allstate Ins. Co., 759 F.3d 836, 841 (8th Cir. 2014). In order to obtain
relief under this standard, the appellant “must show that an obvious
error affected their substantial rights and that the error seriously
affected the integrity, fairness, or public reputation of judicial
proceedings—a standard that is especially stringent in a civil case.” Id.
“Plain error is a stringently limited standard of review, especially in the
civil context, and must result in a miscarriage of justice in order to
compel reversal.” Lopez v. Tyson Foods, Inc., 690 F.3d 869, (8th Cir.
2012) (quoting Schaub v. VonWald, 638 F.3d 905, 925 (8th Cir. 2011)).
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Under the circumstances of this case, there was no obvious error
in the admission of the testimony of origin and cause expert Rick Eley.
In fact, his opinions satisfied that standards of reliability and relevancy
required for admissibility. Further, even if there were any error in the
admission of his testimony, it would not give rise to grounds for reversal
under the plain error standard of review because it did not
substantially effect Manuel’s rights in light of the cross-examination of
Eley and the admission of testimony from investigating fire department
personnel.
“Under Federal Rule of Evidence 702, an expert opinion is
admissible 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.” Presley v. Lakewood Eng’g & Mfg. Co., 553 F.3d 638, 643
(8th Cir. 2009). “The main purpose of Daubert exclusion is to prevent
juries from being swayed by dubious scientific testimony.” Russell v.
Whirlpool Corp., 702 F.3d 450, 456 (8th Cir. 2012) (quoting In re Zurn
Pex Plumbing Prods. Liab. Litig., 665 F.3d 604, 613 (8th Cir. 2011)).
“When making the reliability and relevancy determinations, a district
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court may consider: (1) whether the theory or technique can be or has
been tested; (2) whether the theory or technique has been subjected to
peer review or publication; (3) whether the theory or technique has a
known or potential error rate and standards controlling the technique’s
operation; and (4) whether the theory or technique is generally accepted
in the scientific community.” Russell, 702 F.3d at 456. “This
evidentiary inquiry is meant to be flexible and fact specific, and a court
should use, adapt, or reject Daubert factors as the particular case
demands.” Id. (quoting Unrein v. Timesavers, Inc., 394 F.3d 1008, 1011
(8th Cir. 2005)). “There is no single requirement for admissibility as
long as the proffer indicates that the expert evidence is reliable and
relevant.” Russell, 702 F.3d at 456-57 (8th Cir. 2012) (quoting Unrein,
394 F.3d at 1011).
Three Eighth Circuit cases are particularly instructive in
revealing the admissibility of Eley’s testimony as they approve of the
methods and investigation underlying Eley’s opinions. In Russell, the
Eighth Circuit recognized that, “[i]n the context of fire investigations,
[it] held expert opinions formed on the basis of observations and
experience may meet this reliability threshold.” Russell v. Whirlpool
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Corp., 702 F.3d 450, 457 (8th Cir. 2012). In that case, the Eighth
Circuit rejected the defendant’s contention that plaintiff’s cause and
origin expert “did not use a sufficiently reliable methodology. Id. at
452. The expert, a certified fire investigator, formulated his opinion
after he interviewed the homeowner “regarding several possible causes
of the fire, including an external wood burning stove, the house’s hot
water system, [the homeowner’s] smoking habits, candles and other
open flames, space heaters, and flammable chemicals.” Id. at 453. The
expert “then walked around the house twice, taking photographs the
second time.” Id. “He examined the remaining studs left on the
concrete wall in the basement” and noticed “the studs in the middle
part of the wall were more significantly burned than those on the sides
of the house,” which led him to believe “the middle of the house was a
‘suspect area.’” Id. The expert “found and examined several appliances,
including the backup electric furnace, washer and dryer, and air
handling unit, but could not find any identifiable fire patterns.” Id.
“He noticed nothing unusual about the internal wiring in the house and
eliminated the circuit breaker panel as a potential cause.” Id. The
expert “found the stove and microwave, and after examining them,
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noticed they were damaged more heavily on their left sides, as viewed
from the front.” Id. He determined from the homeowner that the
refrigerator had been on the left of the stove and microwave, which
suggested to him that “the fire spread from the refrigerator to the
adjacent appliances, burning their left sides first and thereby causing
greater damage.” Id. The damage to the refrigerator indicated that it
“burned longer and hotter than the other appliances.” Id. “After
considering all these factors, [the expert] concluded the fire started in
the refrigerator.” Id. The district court denied the defendant’s motion
to exclude the expert’s opinion under Daubert. Id. at 454.
On appeal, defendant argued that the expert’s testimony was
inadmissible for two reasons: (1) his “failure to employ NFPA 921
automatically subjects his expert opinion to exclusion;” and (2) his
“failure to use any scientific methodology for his origin-and-cause
investigation makes his opinions unreliable.” Russell v. Whirlpool
Corp., 702 F.3d 450, 455 (8th Cir. 2012). The Eighth Circuit rejected
defendant’s arguments. It held that the “analytical gap between the
existing evidence and the opinion [the expert] offered is not so great as
to require exclusion.” Id. at 457-58. The Court found that the
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defendant’s arguments were “better addressed to the jury regarding the
weight to be afforded [the expert’s] opinion, rather than to the district
court on the question of admissibility.” Id. at 458.
In Shuck, the Eighth Circuit held that experts “used reliable
methods when they ‘observed the relevant evidence, applied their
specialized knowledge, and systematically included or excluded possible
theories of causation.’” Russell v. Whirlpool Corp., 702 F.3d 450, 457
(8th Cir. 2012) (quoting Shuck v. CNH America, 498 F.3d 868, 875 (8th
Cir. 2007)). The Court found that “observations coupled with expertise
generally may form the basis of an admissible expert opinion.” Shuck,
498 F.3d at 875. The Court held that the defendant’s “complaints about
the plaintiffs’ experts are more properly directed to the jury and to the
weight to be accorded the experts’ opinions rather than to the question
of admissibility” and that the “district court did not abuse its discretion
in admitting the challenged testimony.” Id. (noting that the Fireman’s
Fund case stands for the “general proposition that testing, if performed,
must be appropriate in the circumstances and must actually prove what
the experts claim it proves”).
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In a final comparable case, the Court rejected the defendant’s
argument that the expert’s “conclusion a motorized power scooter
caused a house fire as too speculative because the expert failed to
eliminate other potential ignition sources” and found “nothing
unreliable in the expert’s methodology, in which he considered burn
patterns, identified a point of origin, and eliminated as many
alternative causes of the fire as possible.” Russell v. Whirlpool Corp.,
702 F.3d 450, 457 (8th Cir. 2012) (discussing Hickerson v. Pride
Mobility Prods. Corp., 470 F.3d 1252, 1257 (8th Cir. 2006)).
In the present case, Eley’s opinions were admissible because his
investigation was in conformance with generally accepted fire science
methodology and investigation practice and his methodology and bases
for his opinion were sufficiently reliable. The admissibility of Eley’s
opinions are confirmed by the Court’s holdings in Russell, Shuck, and
Hickerson.
Rick Eley has been a fire investigator since 1976. App. 39. Prior
to that, he worked in the criminal investigation division of the
Williamson County Sherriff’s department in Franklin, Tennessee for
around two years. App 40. In this role, he investigated fires. App. 40.
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From 1976 to 1978, he also worked with the State of Tennessee Fire
Prevention Bureau and, during that time, all of his time was spent
doing fire investigations. App. 40. Since 1989, he has taught fire
science at the Shelby Community College. App. 41. He also serves as
an instructor at the Arkansas Fire Training Academy and the
Tennessee Fire Training Academy. App. 41-42. He spends at least 40
hours a year receiving training in fire science. App. 42. He is on the
education committee for the National Fire Protection Association. App.
43. He has investigated around 8,000 fires in his career. App. 43. In
this regard, it does not appear that even Appellant questions Eley’s
qualifications or experience.
Eley conducted the fire investigation at issue on September 20,
2011. App. 44. At that time, Mr. Manuel was present. App. 44-45. Mr.
Manuel told him that he left town on September 10, 2011, that he had
left nothing on in the house, that he had locked and secured the house,
and that he was the only one who had a key. App. 45. Manuel also told
him that he had experienced no electrical or mechanical problems and
that he did not store any type of flammable or combustible liquids in
the house. App. 45.
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After talking with Manuel, Eley examined the exterior of the
property. App. 45. He examined an automobile that was sitting on the
left side of the house and was heavily damaged by the fire and
determined from his examination that the fire did not start in the car
itself. App. 45. Eley is certified through the National Association of
Fire Investigators to do automobile fire investigations. App. 53. After
examining the exterior, Eley examined the inside of the house. App.
45. From this examination, he was able to determine that the area of
origin was the southeast corner of the home. Appellant’s Appendix 46.
In support of this determination, Eley testified that, based upon his
experience, the area of the heaviest amount of damage will be the area
where the fire started because the fire burns hotter and longer there.
App. 47. Eley’s examination of the area of origin revealed that all of the
vertical wall studs and flooring were gone and, in other areas, the floor
was still relatively intact and many of the vertical wall studs were still
intact. App. 48.
In addition, Eley’s opinions were based on his observation of
oxidation on the sides of appliances facing the area of origin. App. 48-
49. He testified that this was another sign of the direction where the
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fire originated. App. 48-49. For example, Eley testified that there was
oxidation on the side of the water heater facing where he believed the
fire spread from and that there was more oxidation on the water
heater’s base, which indicated that the fire started at or near the floor
level. App. 56.
Further, Eley testified that he used a process called arc mapping
to examine the home’s electrical wiring. App. 49. He found that the
wiring near the area of origin had warped, whereas it had not in other
areas of the house. App. 49. This supported his conclusion that the
area of origin was in the southeast corner of the home. App. 49.
Eley testified that, once he determined the area of origin, he was
able, through a process of elimination, to determine the cause of the
fire. App. 50. In this regard, Eley examined all the home’s appliances
and found no physical evidence that any of the appliances had caused
the fire. App. 50. Specifically, he examined the combination control
valve, baffler, and regulator on the water heater and saw no damage
that would be consistent with causing the fire. App. 60-61. From this
examination, he was able to eliminate the water heater as a cause of
the fire. App. 61. He similarly examined the stove, washer and dryer,
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freezer, computer, refrigerator, and furnace, and eliminated them as
potential causes of the fire. App. 64-65 & 69-70. He further testified
that the electrical wiring did exactly what he would have expected it to
do, short and melt the wire in the area where it starts. Appellant’s
Appendix 50. In addition to his examination, he also relied upon Mr.
Manuel’s belief that nothing was left on in the house, he had not had
any problems in the house, and no new appliances had been installed
before the fire occurred. App. 50.
Based on the information he obtained from Mr. Manuel as well as
what he found from his own fire scene investigation, he determined that
the fire should be classified as an incendiary fire. App. 50-51.
Specifically, he determined that someone intentionally set the fire on
the floor level of the living room area in the southeast corner of the
house. App. 109.
Eley testified that this opinion was confirmed because it was the
area where the most damage was, it was the area where there was
arcing, and it was the area supported by the oxidation patterns. App.
109-110. Eley further testified that this opinion was supported by the
physical evidence discussed in the NFPA. App. 112. He testified he
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arrived at this conclusion by testing alternative hypothesis involving
potential ignition sources and that his conclusion was consistent with
all facts discovered during his examination of the fire loss. App. 112-
113. These exact methods for determining the origin and cause of the
fire have, as discussed above, previously been determined to be
admissible by the Eighth Circuit and, as a result, there was no plain
error in the admission of Eley’s opinions derived from these methods in
this case.
Thus, unlike the Presley case relied upon by Manuel, this is not a
case the experts did no testing in compliance with NFPA 921, which
requires that fire theories involving an appliance be substantiated by
testing of exemplar applies. Presley v. Lakewood Eng’g & Mfg. Co., 553
F.3d 638, 645 (8th Cir. 2009). See also Depositors Ins. Co. v. Hall’s
Rest., Inc., 2014 U.S. Dist. LEXIS 39717 (E.D. Mo. 2014) (rejecting
defendant’s attempt to exclude a fire expert on the basis that “the
negative corpus methodology is specifically prohibited by NFPA 921
because the methodologies utilized by the expert were sufficiently
reliable). Nor is it a case where the “negative corpus methodology”
complained of by Appellant was even employed.
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Further, any criticisms of Eley’s opinion do not give rise to plain
error as a result of its admission because these criticisms were utilized
during a vigorous cross-examination of Eley. “The Supreme Court has
emphasized the usual tools to expose flaws in evidence remain
available” and stated that “‘vigorous cross-examination, presentation of
contrary evidence, and careful instruction on the burden of proof are the
traditional and appropriate means of attacking shaky but admissible
evidence.” Russell v. Whirlpool Corp., 702 F.3d 450, 458 (8th Cir. 2012).
In this regard, during cross-examination, Eley was questioned
regarding NFPA 921. App. 94-97. He acknowledged that, pursuant to
NFPA 921, if a cause cannot be determined due to insufficient data to
support a hypothesis, the cause must be classified as undetermined.
App. 97. He acknowledged that he cannot determine the cause of
between 5 and 10 percent of fires he investigates in a given year. App.
101. Further, Mr. Manuel questioned Eley regarding the NFPA’s
position on negative corpus. App. 105-107. Eley testified that he did
not believe his examination could properly be classified as utilizing a
negative corpus approach because of the physical examination he
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performed and the information he obtained which supported his
hypothesis. App. 108.
However, Eley maintained that all the physical evidence he
examined supported his conclusion that the fire was incendiary in
origin and that this was sufficient to render it reliable. App. 98. This
included the area of heavier damage, the location of the arc mapping,
his examination of the wiring and appliances, and the information
obtained from Mr. Manuel. App. 98. He testified that, when he goes by
a process of elimination, he eliminates everything except an incendiary
fire cause. App. 98. Eley maintained that it was his position that his
opinion was tested scientifically and that his examination was in
conformance with NFPA 921, noting Section 18.4.4.3 of that section
which provides that “There are many times when there’s no physical
evidence of the ignition source found at the origin, but where an
ignitable or ignition sequence can be logically inferred by using other
data.” App. 104.
Also during cross, NFPA section 18.6.5, relied upon by Appellant,
was read to the jury. App. 113-114. However, it was Eley’s position
that he did not base his opinion on the absence of any supportive
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evidence but, rather, contended that he used a scientific process of
elimination to eliminate all other potential ignition sources utilizing the
physical evidence that was present. App. 114-115. He further testified
that his investigative method was consistent with that used by fire
investigators throughout the United States. App. 114.
In addition to Manuel’s cross-examination of Eley, he was also
allowed to explore the origin and cause issue with Purvis Watson,
Captain of the Helena-West Helena Fire Department. Sep. App 80.
Watson, who acknowledged that he was not an expert, testified that,
when he saw what was left of the house, he decided he would leave it up
to the insurance company’s investigator to try to determine the cause of
the fire. Sep. App. 84. Nonetheless, Watson testified that, in his report,
he stated that the cause of ignition was undetermined. Sep. App. 85-86.
Watson was also permitted to testify that, in his report, he stated there
were no human factors contributing to ignition. Sep. App. 86.
Under these circumstances, there was no plain error sufficient to
warrant reversal of the Jury Verdict in favor of MDOW arising from the
admission of Rick Eley’s testimony.

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48

CONCLUSION

MDOW requests that the Verdict against Manuel and the
Judgment entered on its behalf be affirmed. Specifically, it requests
that this Court find that the District Court did not abuse its discretion
when it found that Manuel did not meet the high evidentiary burden to
grant a new trial or even to merit the Court conducting a hearing on his
request for a new trial. MDOW also requests that this Court affirm the
Jury Verdict in its favor because the District Court did not commit plain
error when it admitted the testimony of MDOW’s expert witness.

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49

CERTIFICATE OF COMPLIANCE

I certify that the brief and addendum have been scanned for
viruses and are virus free in compliance with Eighth Circuit Rule
28A(c).
Further, pursuant to rule 32(a)(7)(C) of the Federal Rules of
Appellate Procedure, I hereby certify that this brief complies with the
applicable type-volume limitation. Specifically, the Brief contains 9,236
words using proportional spacing and 14 point type (Century
Schoolbook font, Microsoft Word), and the brief has been prepared using
Microsoft Word.

/s/Ashleigh Phillips

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50

CERTIFICATE OF SERVICE

I hereby certify that on January 8, 2015, I electronically filed the
foregoing Brief with the Clerk of the Court for the United States Court
of Appeals for the Eighth Circuit by using the CM/ECF system. I certify
that all participants in the case are registered CM/ECF users and that
service will be accomplished by the CM/ECF system.

/s/Ashleigh Phillips

Appellate Case: 14-3092 Page: 50 Date Filed: 01/09/2015 Entry ID: 4232918

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