UNITED STATES DISTRICT COURT WESTERN DISTRICT OF … Case 5:11-cv-00017-MLH Document 182 Filed...

UNITED STATES DISTRICT COURTWESTERN DISTRICT OF LOUISIANA

SHREVEPORT DIVISION

INTERNATIONAL PAPER CO., ET AL CIVIL ACTION NO. 11-cv-0017

VERSUS

DEEP SOUTH EQUIPMENT CO., ET AL MAGISTRATE JUDGE HORNSBY

MEMORANDUM RULING

Introduction

International Paper (“IP”) operates a paper mill near Mansfield, Louisiana. It leased

from Murphy Bonded Warehouse (“Murphy Bonded”) a warehouse in nearby Red River

Parish to store used paper and corrugated containers that would be used as feedstock. Tango

Transport (“Tango”) operated the warehouse for IP.

Tango rented a lift truck from Deep South Equipment Company (“Deep South”) to

use in the warehouse. The truck was built by NACCO Materials Handling Group, Inc.

(“NACCO”). Several days after the truck arrived at the warehouse, an employee smelled

smoke and discovered that a fire had broken out near the truck. The warehouse was

destroyed.

IP had an insurance policy from Factory Mutual Insurance Company (“FM”). The

insurer paid IP for its losses, including the cost of demolition and rebuilding the warehouse.

IP and FM (“Plaintiffs”) then filed this complaint against defendants including Deep South

Case 5:11-cv-00017-MLH Document 182 Filed 09/24/14 of 11 PageID #: 4213

and NACCO, whom they faulted for the fire. Before the court are several expert-related

motions.

Applicable Law

Rule 702 provides that “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 willhelp the trier of fact to understand the evidence or to determine a factin 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 methods to the factsof the case.

F.R.E. 702. Rule 702 “assign[s] to the trial judge the task of ensuring that an expert’s

testimony both rests on a reliable foundation and is relevant to the task at hand. Pertinent

evidence based on scientifically valid principles will satisfy those demands.” Daubert v.

Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 597 (1993).

The Daubert court provided an illustrative list of factors that courts may use when

evaluating the reliability of expert testimony. Id. at 592-594. These factors include whether

the expert’s theory or technique can be or has been tested, whether it has been subjected to

peer review, whether it has a known or potential rate of error or standards controlling its

operation, and whether it is generally accepted in the relevant scientific community. Id. at

593-594. “In short, expert testimony is admissible only if it is both relevant and reliable.”

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Case 5:11-cv-00017-MLH Document 182 Filed 09/24/14 Page 2 of 11 PageID #: 4214

Pipitone v. Biomatrix, Inc., 288 F.3d 239, 244 (5th Cir.2002). The Daubert factors should

be applied with flexibility, and the question of whether an expert’s testimony is reliable is

ultimately a fact-specific inquiry. See Kumho Tire Co., Ltd. v. Carmichael, 526 U.S. 137,

138 (1999); Burleson v. Tex. Dep’t of Criminal Justice, 393 F.3d 577, 584 (5th Cir.2004).

NACCO’s Motion to Preclude Testimony of John Howard (Doc. 95)

At the time of the fire, Tango owned two or three Hyster lift trucks that had been

purchased from Deep South for use at the warehouse. All were purchased with a Paper

Package. Tango also occasionally rented a lift truck from Deep South when the need arose.

A few weeks before the fire, Tango contacted Deep South and requested an immediate short

term rental of a H80FT lift truck. Tango was expecting an increase in paper volume in the

coming weeks. The rented lift truck did not contain a Paper Package.

Plaintiffs do not allege that the rented lift truck was defective or that NACCO was

negligent. Instead, Plaintiffs allege that NACCO, which does not sell directly to end users,

failed to adequately warn their dealers that a “Paper Package” should be installed on all lift

trucks operated in the paper handling industry. The Paper Package helps reduce the

accumulation of paper debris in the engine compartment. The package includes, among other

things, a vented hood and muffler wraps.

Plaintiffs retained John Howard (“Howard”) as a human factors expert to testify in

regards to their warning claim against NACCO. Howard opines that, although NACCO does

recommend the use of the Paper Package when a lift truck will be operated in the paper

industry, NACCO’s warning information system was not emphatic enough to impress upon

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dealers the need to impress upon end users the importance of using the Paper Package.

Howard also opines that NACCO should not have made the Paper Package an optional

component when the lift truck will be operated in a paper environment. NACCO has moved

to exclude Howard’s testimony.

After considering all of the lengthy submissions, the court finds that Howard’s

opinions regarding NACCO are not reliable, relevant, or helpful to the trier of fact. Indeed,

Howard’s opinions regarding NACCO will do nothing but confuse the jury. The deposition

testimony shows that Deep South knew that NACCO recommended the Paper Package for

an operation like Murphy Bonded. The appropriate ANSI standard does not mandate that

Paper Package-type add ons be standard equipment on all lift trucks. In fact, OSHA places

the responsibility on the end user to determine the appropriate equipment for its work

environment. 29 U.S.C. § 654(a)(1). The is no way for NACCO, which does not sell to end

users, to know how and where end users will operate its lift trucks.

NACCO has a web site for dealers to review regarding recommended options such

as the Paper Package. When asked if he ever visited that site, Howard responded: “I am not

a dealer.” Howard at 142. There is no way Howard can accurately analyze or criticize

NACCO’s communications with its dealers regarding options and accessories if Howard did

not bother to review those communications.

Howard also offers no alternatives to NACCO’s communications regarding the Paper

Package. He does not know what other manufacturers do with respect to a Paper Package.

Howard at 59. He has not compared the H80FT operator’s manual with manuals from other

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manufacturers. And, most significantly, Howard testified that he had not put “pen to page”

to describe what NACCO should do differently with respect to its communications with its

dealers. Howard at 172.

Howard may be permitted to testify regarding the communications between Deep

South and the end user. (Deep South has not filed a timely motion challenging Howard’s

opinions.) However, with regard to NACCO, Howard’s opinions amount to little more than

speculative guess work. Accordingly, NACCO’s motion to exclude his testimony (Doc. 95)

is granted.

Motion to Strike/Daubert Challenge of Johnny Thornton (Doc. 100) and Motion toStrike Affidavits of Johnny Thornton and Charles Watson (Doc. 123)

Deep South and NACCO (Doc. 111) seek an order excluding the testimony of

Plaintiff’s cause and origin expert, Johnny Thornton (“Thornton”). Thornton opines that: (1)

the area of origin of the fire was within the engine compartment of the Hyster 80 lift truck

that was parked in “D” aisle of the warehouse; (2) the fire was caused by ignition of paper

products in close proximity to the unprotected exhaust manifold of the Hyster 80 lift truck;

and (3) the fire was not caused by sparks or heat from baling wire, sparks from the forks/bale

clamp, lightning, smoking, or overhead lights. Deep South and NACCO argue that

Thornton’s opinions are based on inadequate facts and data, are not the result of a reliable

application of any principles and methods to the facts, and are per se defective under the

provisions of the applicable standard, NFPA 921.

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In response to this motion, Plaintiffs submitted affidavits from Thornton (the expert

in question) and Charles Watson (a previously undeclared expert). Both of those affidavits

were submitted after the expert report deadline in the court’s scheduling order. Thornton’s

affidavit is an obvious attempt to correct the problems with his analysis that were identified

in his deposition and the Daubert motion, specifically his failure to consider the updated

version of NFPA 921. Watson’s affidavit impermissibly attempts to bolster and give

credibility to Thornton’s opinions. Watson was never identified as an expert in this case.

Deep South’s Motion to Strike (Doc. 123) both affidavits is granted.

The court has serious reservations about Thornton’s qualifications to testify as an

expert in this case. He is no longer licensed in Texas (he let his license lapse – Thornton at

42) and has never been licensed in Louisiana (incredibly, he testified that he was told that he

could “funnel” his cases – Thornton at 44). He has failed to maintain his CFEI certification;

he needs 40 hours of continuing education credits to become certified. Thornton at 39.

However, it is not merely Thornton’s lack of certifications and licenses that disqualifies him

as an expert; courts typically hold that such matters go to the weight – and not the

admissibility – of an expert’s testimony. Here, it is Thornton’s failure to review and apply

the most current version of the applicable fire investigation techniques and methodologies

that, combined with his weak credentials, leads this court to exclude his opinions.

The National Fire Protection Association (“NFPA”) is an international nonprofit that

promotes codes and standards to minimize the possibility and effects of fire and other risks.

Schlesinger v. U.S., 898 F. Supp.2d 489, 492 (E.D. N.Y. 2012). NFPA 921 (“Guide for Fire

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and Explosion Investigations”) is a peer reviewed and generally accepted standard in the fire

investigation community. Travelers v. General Electric, 150 F.Supp.2d 360, 366)(D. Conn.

2001). It was first issued in 1992, and it is revised every three years or so due to new

information and advances in science. Bunch v. State, 964 N.E.2d 274, 287-288 (Ind. Ct.

App. 2012).

Thornton purported to rely on NFPA 921 in reaching his conclusions. But his

deposition testimony on this point, like much of his other deposition testimony, was evasive.

When asked whether he relied on NFPA 921, Thornton stated that he relied on “knowledge

of it, yes.” Thornton at 34. Thornton stated that his knowledge of 921 is a “working

knowledge.” Thornton at 35. When asked which edition of 921 he used in this case, he

testified: “As I said, I utilized my knowledge of it. The one that would be applicable may

be a better question, sir.” Id. He then testified: “I utilized my knowledge of 921 from the

creation date with all the peer review changes that have occurred. The 2008 volume or –

excuse me – publication was in effect.” Id. Thornton then testified that he does not own or

have a copy of most recent edition of 921 – the 2011 edition. He incorrectly stated that,

“2012 was the next edition.” Thornton at 36.

Plaintiffs argue that, even though Thompson did not cite the 2011 version in his

report, the methods that he used in arriving at this opinions were based on the scientific

method, which is the basis of all versions of NFPA 921. Under this reasoning, Thompson

could have used the original 1992 version because it, too, is (or was) based on the scientific

method at the time. But the standards are revised because of advances in science.

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The 2011 revisions to NFPA 921 made numerous changes to Chapter 18 (“Fire Cause

Determination”). The court’s side by side comparison of the 2008 version to the 2011

version shows that the 2011 version is a substantial rewrite. The 2011 version is twice as

long and contains new criteria regarding the collection and consideration of data, the

assessment of ignition sequencing, and the development and testing of a cause hypothesis.

For Thornton to purport to rely on his working knowledge of NFPA 921, but not take the

2011 revisions into account, highlights the unreliability of his work in this matter.

The court does not hold that NFPA 921 is the only possible method to determine fire

cause and origin. But, when an expert purports to rely on NFPA 921 from the date of its

creation, including all of the peer reviewed changes that have occurred, but omits the most

recent and significant changes, there must be a good explanation for the omission. Perhaps

had Thorton kept up with his certifications, licenses, and continuing education, the glaring

omission would not have occurred. Accordingly, Deep South’s Daubert motion (Doc. 100)

that challenges Johnny Thornton (Doc. 100) is granted.

Motion to Strike Supplemental Report of Friedemann (Doc. 172)

Deep South moves to strike a supplemental report issued by Plaintiff’s expert, Robert

Friedemann. Deep South argues that the supplemental report is untimely and contains

information that was available to Friedemann at the time of his original report. Deep South

also argues that the supplemental report is an attempt by Plaintiffs to work in a new theory

with new evidence.

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Plaintiffs state that they retained Friedemann to provide expert testimony on the

temperatures of surfaces within the engine compartment of an operating Hyster lift truck.

Friedemann’s original report was issued on October 8, 2012. The report describes testing

performed on February 26-27, 2012 and purports to show exhaust temperatures rising to over

700 degrees (Feb. 26 testing) and in the vicinity of 600 degrees (Feb. 27 testing).

Friedemann’s report states that the temperature of the exhaust system exceeded the 450

degrees required to ignite paper. Friedemann obtained the 450 degree figure from Johnny

Thornton.

Following the issuance of the Friedemann report, Plaintiffs took the deposition of Eric

Benstock, Deep South’s mechanical engineering expert. Benstock testified that the ignition

temperature of copy paper in an unpiloted ignition was 842 degrees, and that the hot engine

exhaust could not have started the fire.

In response to the Benstock testimony, Friedemann issued the supplemental report in

question. The report mentions the 600-700 degree range discussed above. The other new

parts of the report describe a test performed by Friedemann in a 1996 (the report includes a

video of the 1996) test where he placed three types of paper around a Hyster lift truck

exhaust pipe (heated to between 580-620 degrees) and observed flaming ignition within

approximately five minutes.

Deep South’s motion to strike is granted in part and denied in part. The court is

not concerned with the new language describing the temperature range. The addition is

insignificant at best; no new theories or opinions are offered.

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However, the portions of the report that describe the 1996 testing and results thereof

are stricken. This information was clearly available to Friedemann when he issued his

original report, and it should have been obvious to anyone involved with this case that a key

issue is whether a Hyster exhaust system can ignite paper. These aspects of the supplemental

report are untimely by about a year; no testimony will be allowed by Friedemann regarding

the 1996 testing and results.

Motions to Strike Plaintiff’s Expert Rebuttal Witness, Frederick Mowrer (Docs. 93 and173)

Deep South filed two motions to strike Plaintiffs’ expert rebuttal witness, Frederick

Mowrer. Docs. 93 and 173. The motions are joined in by NACCO. Doc. 112. The first

motion seeks to strike Mowrer as an expert because, at the time of the filing of the motion,

Mowrer had not provided a report as required by the scheduling order or Rule 26. The

second motion was filed after Mowrer’s report was issued. Deep South argues that the report

is untimely; it goes beyond the description in Plaintiffs’ expert disclosures; and it

impermissibly comments on the video test performed by Friedemann in 1996.

Plaintiffs note that the court did not require the defense experts to tender reports until

after the Plaintiffs’ experts’ depositions were taken. Plaintiffs state that they are simply

seeking the same relief – as a matter of fairness. However, Plaintiffs did not approach the

court and seek that relief in advance. Instead, Plaintiffs waited nearly a year after receiving

Defendants’ experts’ reports to provide Mowrer’s rebuttal report. That is simply too late

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under this court’s scheduling order. The motions to strike (Docs. 93 and 173) are granted.

Mowrer’s report and testimony will not be considered.

THUS DONE AND SIGNED in Shreveport, Louisiana, this 24th day of September,

2014.

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IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF LOUISIANA

SHREVEPORT DIVISION

INTERNATIONAL PAPER COMPANY and § CIVIL ACTION NO. 11-cv-00017 FACTORY MUTUAL INSURANCE § COMPANY § Plaintiffs § JUDGE STAGG § VERSUS § § DEEP SOUTH EQUIPMENT COMPANY, § MAGISTRATE JUDGE HORNSBY NACCO MATERIALS HANDLING GROUP, § INC., OSRAM SYLVANIA INC., ETAL §

TABLE OF CONTENTS

TABLE OF CONTENTS ...................................................................................................................... i-ii TABLE OF AUTHORITIES ................................................................................................................... iii FACTUAL BACKGROUND ................................................................................................................ 1-2 LAW AND ANALYSIS ............................................................................................................................ 2

A. The Relevant Legal Standard – Ensuring the Reliability and Relevance of Expert Opinion Testimony .................................................................................................................... 3

B. NFPA 921 – The Authoritative Standard of Care for Fire Investigations ........................... 4-6

C. Application to the Opinion Testimony of Johnny Thornton ............................................. 6-23 1. Mr. Thornton is Fundamentally UNQUALIFIED to Render His Fire Origin and Cause

Opinions ....................................................................................................................... 6-10

2. Mr. Thornton’s Methodology is Flawed with Omissions, Speculation and Bias ......10-23 I. Mr. Thornton’s investigative Methodology on his origin and cause opinions is

flawed because he fails to consider and reconcile the testimonies of two Tango employees, Evan Bowers and Cleo Wilson, regarding the specific origin area of the fire that they observed ..............................................................................10-12

II. Mr. Thornton’s Methodology employed to reach his origin and cause opinions is flawed because he failed to consider, tests, and eliminate the FRICTIONAL EFFECTS OF (1) BALES PUSHING along the CONCRETE FLOOR, (2) WIRE ENTANGLEMENT in the lift truck axle, CREATING SPARKS as the originating source of the fire, AND/OR (3) SPARKS CUASED by the CLAMPS BEING PUSHED along the CONCRETE FLOOR .........................................................12-15

III. Mr. Thornton’s Methodology in coming to his origin and cause opinions is flawed because he failed to consider and eliminate a CATASTROPHIC FAILURE of a METAL-HALIDE LIGHT FIXTURE as the originating source of the fire in the Warehouse .......................................................................................15-17

Case 5:11-cv-00017-MLH Document 100-1 Filed 02/19/14 Page 1 of 3 PageID #: 1830

IV. Mr. Thornton’s Methodology is unreliable and lacks a factual basis to eliminate

the metal halide light as his opinions were formulated before Forest Smith’s expert report had been prepared .......................................................................... 17

V. Mr. Thornton’s Methodology in his origin and cause opinions is flawed

because he failed to consider and to eliminate LIGHTING as the originating source of the fire in the Warehouse ................................................................17-19

VI. Mr. Thornton’s Methodology in his origin and cause opinions is unreliable and

flawed because he failed to consider and eliminate UNAUTHORIZED SMOKING as the cause of the fire in the Warehouse .......................................................19-20

VII. Mr. Thornton’s Methodology in reaching his origin and cause opinions is

unreliable and flawed because he failed to consider and eliminate a HOT BALE as the cause of the fire in the Warehouse ............................................................ 21

VIII. Mr. Thornton’s Methodology in determining the ignition temperature of paper

in reaching his origin and cause opinions is unreliable and not based upon scientific data ....................................................................................................21-22

IX. Mr. Thornton’s Methodology in investigating and concluding that the OCC

Paper Fire of January 28, 2010, was due to a rekindle of the original fire is unreliable and not based upon sufficient facts and data ...............................22-23

D. Expectation and Confirmation Bias – The Pitfalls of Expert Objectivity ........................23-28

1. EXPECTATION BIAS: Expert Opinion Struck for Failing to Consider, Explore, and

Eliminate Other Possible Causes of Loss Due to a Pre-Conceived Theory of Loss 23-25

2. CONFIRMATION BIAS: Expert Opinion Struck Due to a Lack of Due Diligence in Thoroughly Exploring All Available Facts and Evidence – Flawed Methodology ...25-28

CONCLUSION ..................................................................................................................................... 29 CERTIFICATE OF SERVICE ............................................................................................................... 30



SHREVEPORT DIVISION

INTERNATIONAL PAPER COMPANY and § CIVIL ACTION NO. 11-cv-00017 FACTORY MUTUAL INSURANCE § COMPANY § Plaintiffs § JUDGE STAGG § VERSUS § § DEEP SOUTH EQUIPMENT COMPANY, § MAGISTRATE JUDGE HORNSBY NACCO MATERIALS HANDLING GROUP, § INC., OSRAM SYLVANIA INC., ETAL §

TABLE OF AUTHORITIES

CASES Abu-Hashish v. Scottsdale Ins. Co., 88 F.Supp.2d 906,908 (N.D.Ill. 2008) ............................................. 5 Anderson v. Westinghouse Savannah River Co., 406 F.3d 248, 263 (4th Cir. 2005). ............................. 4 Bryte ex rel. Bryte v. Am. Household, Inc., 429 F.3d 469 (4th Cir.2005) ......................................... 26, 27 Chester Valley Coach Works v. Fisher-Price, Inc., 2001 WL1160012 (E.D.Pa., 2001).................... 24, 27 Curtis v. M&S Petroleum, Inc., 174 F.3d 661 (5th Cir. (Miss.) 1999) .................................................... 3, 4 Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 589-91,113 S. Ct. 2786 (1993) ................ 3 Fireman’s Fund Ins. Co. v. Canon U.S.A., Inc., 394 F.3d 1054, 1057 (8th Cir. (Minn.) 2005) ................... 5 General Electrical Co. v. Joiner, 522 U.S. 136, 118 S.Ct. 512 (1997) ..................................................... 4 Guidroz-Brault v. Missouri Pacific R. Co., 254 F.3d 825, 829 (9th Cir. 2001)............................................ 4 Indiana Ins. Co. v. Gen. Elec. Co., 326 F.Supp.2d 844, 849 (N.D. Ohio 2004) ....................................... 5 Johnson v. Arkema, Inc., 685 F.3d 452, 459 (5th Cir. (Tex.) 2012) .......................................................... 4 Kumho Tire Co. v. Carmichael, 526 U.S. 137, 119 S.Ct. 1167 (1999) ..................................................... 3 Lewis v. PDV America, Inc., 532 F. Supp.2d 1006 (N.D. Ill. 2008) .......................................................... 3 McCoy v. Whirlpool Corp., 214 F.R.D. 646, 653 (D.Kan.2003) ............................................................... 5 Moore v. Ashland Chemical, Inc., 151 F.3d 269 (5th Cir. 1998) ............................................................... 3 Pekarek v. Sunbeam Prods., Inc., 672 F.Supp.2d 1161, 1176 (D.Kan.2008) .................................. 25, 27 Royal Ins. Co. of Am. v. Joseph Daniel Constr., Inc., 208 F.Supp.2d 423, 426 (S.D.N.Y.2002) .............. 5 U.S. v. Hebshie, 754 F.Supp.2d 89, 110 (D.Mass. 2010) ........................................................................ 5 Wells v. Smithkline Beecham Corp., 601 F.3d 375 (5th Cir. (Tex.) 2010) ................................................. 3 RULES Federal Rule of Evidence 702 ........................................................................................................... 2,3,4



SHREVEPORT DIVISION

INTERNATIONAL PAPER COMPANY and § CIVIL ACTION NO. 11-cv-00017 FACTORY MUTUAL INSURANCE § COMPANY § Plaintiffs, § § JUDGE STAGG VERSUS § § DEEP SOUTH EQUIPMENT COMPANY, § MAGISTRATE JUDGE HORNSBY NACCO MATERIALS HANDLING GROUP, § INC., OSRAM SYLVANIA INC., ETAL § § Defendants. §

MEMORANDUM IN SUPPORT OF DEEP SOUTH EQUIPMENT COMPANY’S MOTION TO STRIKE/DAUBERT CHALLENGE OF PLAINTIFFS’ EXPERT,

JOHNNY THORNTON MAY IT PLEASE THE COURT:

Defendant, DEEP SOUTH EQUIPMENT COMPANY (“DEEP SOUTH”), moves this

Honorable Court to strike or otherwise exclude, under Daubert, in its entirety the opinions and/or

testimony at trial of INTERNATIONAL PAPER COMPANY (“IP”) and FACTORY MUTUAL

INSURANCE COMPANY’s (“FMIC”) expert, Johnny Thornton, on grounds that his opinions are

based on (1) inadequate facts and data and (2) are not the result of a reliable application of any

principles and methodologies of NFPA 921 to the facts of this case, for reasons set forth more

fully herein.

FACTUAL BACKGROUND

On or about January 7, 2010, a fire occurred at a non-sprinklered, covered canopy,

paper storage warehouse leased to IP in Mansfield, Louisiana (the “Warehouse”). The fire

resulted in the destruction of the Warehouse’s combustible content inventory and its structure

(the “Fire Loss”).

The Warehouse was owned by Murphy Bonded Warehouse, L.L.C. (“Murphy”) and

leased to IP. Pursuant to the terms of the lease, it was insured by a policy of property insurance

purchased by IP from FMIC. Pursuant to the terms of its policy, FMIC made payment to and/or

on behalf of IP for this loss.


2

On January 7, 2011, IP and FMIC filed suit against DEEP SOUTH and several other

defendants for allegedly causing and/or contributing to the fire and resulting damages.

On October 15, 2012, IP and FMIC filed Plaintiffs’ Expert Disclosures that declared

various experts, and Johnny Thornton was identified to testify “on the origin and cause of the

fire in question” whose findings and conclusions were set forth in a written report dated

September 14, 20121. In his report, Mr. Thornton makes three (3) separate conclusions in

opining as to the purported origin and cause of the Fire Loss event:

(1) that “the area of origin for the original fire was found within the engine compartment of the Hyster 80 that was parked in ‘D’ Aisle”2;

(2) that “the fire was caused by ignition of paper products that were in close

proximity to the unprotected exhaust manifold of the Hyster 80”3; and

(3) that the fire was not caused by sparks from or hot baling wire, sparks from the forks/bale clamp, lightning, smoking, or overhead lights.4

For reasons set forth below, DEEP SOUTH avers that because Thornton’s opinions as

to the origin and cause of the Fire Loss are based on inadequate facts and data, are not the

result of a reliable application of any principles and methods to the facts of the present case,

that his opinions are per se defective under Federal Rule of Evidence 702 and the provisions of

NFPA 921, and his opinions should be struck or otherwise precluded from introduction at trial.

LAW AND ANALYSIS

At issue in this matter is whether the opinions expressed by PLAINTIFFS’ proffered

expert, Johnny Thornton, vis-à-vis his September 14, 2012 report and November 14, 2012

deposition testimony, are based upon a compilation of sufficient facts that are analyzed under

scientifically-established principles and methods to render them fundamentally sound and

reliable for consideration by the fact finder in determining the ultimate issue of liability in this

case.

1 A copy of Johnny Thornton’s written expert report of September 14, 2012 is attached hereto as Exhibit A. 2 See Exhibit A at p. 10, paragraph 6. 3 See Exhibit A at p. 13, paragraph 4. 4 See Exhibit A at p. 11, paragraph 1.


3

A. The Relevant Legal Standard - Ensuring the Reliability and Relevance of Expert

Opinion Testimony

For expert testimony to be admissible under Rule 702, the party seeking to offer expert

testimony must establish that the expert testimony is both (1) reliable and (2) would assist the

trier of fact in understanding the evidence or determining a fact at issue in the case.5 In other

words, to be admissible, expert testimony must be both reliable and relevant.6

The U.S. Supreme Court interpreted Rule 702 in Daubert v. Merrill Dow

Pharmaceuticals, Inc., 509 U.S. 579, 113 S.Ct. 2786 (1993) and explained that Rule 702

assigns the judge a gate-keeping role to ensure that scientific testimony is both reliable and

relevant as a condition of its admissibility.7 The district court’s “gate-keeping” role thus requires

the judge to undertake a two-part analysis: (1) determining whether the proffered testimony is

reliable, i.e., assessing whether the reasoning or methodology underlying the testimony is

scientifically valid, and (2) determining whether that reasoning or methodology can be properly

applied to the facts in issue; that is, whether it is relevant.8

The first part of the analysis concerns whether the challenged testimony is reliable.9

The party seeking to admit expert testimony must demonstrate that the expert’s findings and

conclusions are reliable.10 This requires some objective, independent validation of the expert’s

methodology.11 The expert’s assurances that he has utilized generally accepted scientific

methodology is insufficient.12 Courts must resolve cases on the basis of scientific knowledge

that is currently available and based upon scientifically valid principles.13 As such, the

5 Lewis v. PDV America, Inc., 532 F. Supp.2d 1006 (N.D. Ill. 2008) (citing Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 589-91, 113 S. Ct. 2786 (1993)). 6 Wells v. Smithkline Beecham Corp., 601 F.3d 375 (5th Cir. (Tex.) 2010). 7 Curtis v. M&S Petroleum, Inc., 174 F.3d 661 (5th Cir. (Miss.) 1999) citing Daubert, 113 S.Ct. at 2799 and footnoting that its principles were later extended to apply beyond scientific testimony vis-à-vis Kumho Tire Co. v. Carmichael, 526 U.S. 137, 119 S.Ct. 1167 (1999). 8 Curtis, supra. 9 Curtis, supra. 10 Moore v. Ashland Chemical, Inc,, 151 F.3d 269 (5th Cir. 1998). 11 Id. at 276. 12 Id. 13 Id.


4

“reliability” requirement of the court’s gatekeeping function implies that the expert’s testimony

must be grounded in the methods and procedures of science and must be more than

unsupported speculation or subjective belief.14

Not only must the expert’s methodology in formulating an opinion be scientifically sound,

but the underlying facts and data upon which that methodology is applied must be sufficient,

else the reliability of the conclusions being drawn is severely compromised. Rule 702(b), as well

as certain provisions of Daubert15 and its progeny, require that expert testimony may “not

include unsupported speculation and subjective beliefs.”16 Any lack of sufficient data and

factual support for an opinion negatively affects the reliability of the conclusions and opinions

reached in any case.17

Nothing in either Daubert or the Federal Rules of Evidence requires a district court to

admit opinion evidence that is connected to existing data only by the ipse dixit of the expert.18

In fact, a court is required to preclude opinion evidence when there is too great of an

“analytical gap” between the data and the opinion proffered.19

The “relevance” prong of the standard for admission of expert testimony requires the

offering party to demonstrate that the expert’s reasoning or methodology can be properly

applied to the facts in issue.20 The judge must determine whether the reasoning or

methodology can be properly applied to the facts at issue; that is, whether it is relevant.21

B. NFPA 921 – The Authoritative Standard of Care for Fire Investigations

NFPA 921, Guide for Fire Explosion Investigations, is the pre-eminent scientific authority

for the systematic investigation and analysis of fire and explosion events. The process of

developing and revising the document is subject to wide peer review. Courts throughout the 14 Curtis v. M&S Petroleum, Inc., 174 F.3d 661 (5th Cir. (Miss.) 1999). 15 509 U.S. 579 (1993). 16 Guidroz-Brault v. Missouri Pacific R. Co., 254 F.3d 825, 829 (9th Cir. 2001). 17 Anderson v. Westinghouse Savannah River Co., 406 F.3d 248, 263 (4th Cir. 2005). 18 General Electrical Co. v. Joiner, 522 U.S. 136, 118 S.Ct. 512 (1997). 19 Id. at 146. 20 Johnson v. Arkema, Inc., 685 F.3d 452, 459 (5th Cir. (Tex.) 2012), citing Daubert, 509 U.S. at 592-93, 113 S.Ct. 2786. 21 Curtis, 174 F.3d at 668.


5

United States have recognized NFPA 921 as the authoritative standard for the fire investigative

process and, in particular, for the reliable determination of origin and cause characteristics of a

fire loss event - with one court hailing NFPA 921 as the “gold standard” for fire investigation

protocols.22

NFPA 921’s introductory text underscores its disciplined, systematic approach to strict

procedural standards that are designed to improve the probability of reaching reliable

conclusions as part of the investigative process.23

The basic methodology of the investigative process, to ensure NFPA 921’s reliability

objectives, is predicated on the Scientific Method, a systematic approach universally employed

in the physical sciences and expressly adopted and recognized in Chapter 4 of NFPA 921.24

Chapter 4 of NFPA 921 explicitly underscores the importance of considering all available facts

and data as a precursor and pre-requisite to concluding a fire’s origin and cause.25

With the systematic collection and analysis of data being the centerpiece of the fire

origin and cause investigative process, it is critical that all available facts and data that may

have a bearing on an origin and/or cause determination be identified, collected, and

forensically evaluated so that objective, reliable conclusions can be drawn. Conclusions

reached, or opinions formulated, based on the analysis of insufficient data or where key facts

are not considered necessarily renders those conclusions or opinions unreliable, particularly

when those omitted facts are inconsistent with the conclusions formed in their absence.

22 See Abu-Hashish v. Scottsdale Ins. Co., 88 F.Supp.2d 906,908 (N.D.Ill. 2008)(describing NFPA 921

as “a recognized guide for use by fire investigators in the fire investigative process”); Indiana Ins. Co. v. Gen. Elec. Co., 326 F.Supp.2d 844, 849 (N.D. Ohio 2004)(recognizing NFPA 921 as a “guide for assessing liability of expert testimony in fire investigations”); Fireman’s Fund Ins. Co. v. Canon U.S.A., Inc., 394 F.3d 1054, 1057 (8th Cir. (Minn.) 2005)(acknowledging that NFPA 921 “qualifies as a reliable method endorsed by a professional organization”); U.S. v. Hebshie, 754 F.Supp.2d 89, 110 (D.Mass. 2010)(“NFPA 921 has been peer-reviewed and is generally accepted in the community of fire investigators”); Royal Ins. Co. of Am. v. Joseph Daniel Constr., Inc., 208 F.Supp.2d 423, 426 (S.D.N.Y.2002)(finding that NFPA 921 standards are sufficiently reliable under Daubert); McCoy v. Whirlpool Corp., 214 F.R.D. 646, 653 (D.Kan.2003).

23 NFPA 921 (2011), p. 8 is attached hereto as Exhibit B. 24 NFPA 921 (2011), 4.2, p. 17 is attached hereto as Exhibit C. 25 NFPA 921 (2011), 4.1, 4.3.6, 4.4.5, pp. 17-19 is attached hereto as Exhibit D.


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NFPA 921 underscores the importance of data integrity and that a wide net be cast to

capture facts from a variety of sources to ensure that a reliable fire origin determination can be

made. The origin and cause expert should consider: (1) Witness Information; (2) Fire Patterns;

(3) Arc Mapping; and (4) Fire Dynamics.26

18.1.1 Fire Cause Factors. The determination of the cause of the fire requires the identification of those factors that were necessary for the fire to have occurred. Those factors include the presence of a competent ignition source, the type and form of the first fuel ignited, and the circumstances, such as failures or human actions, that allowed the factors to come together and start a fire….27

While the collection of sufficient facts is critically important to proper fire origin and cause

analysis, the interpretation of those facts in an objective, methodical process is equally

important to ensure that sound hypotheses are formed and reliable conclusions reached.

C. Application to the Opinion Testimony of Johnny Thornton

1. Mr. Thornton is Fundamentally UNQUALIFIED to Render His Fire Origin and Cause Opinions

In his deposition testimony of November 14, 201228, Mr. Thornton purports to be well-

qualified to offer fire origin and cause opinions and to employ a level of rigor and discipline in his

investigative methodologies to render his opinions valid and reliable. In doing so, Mr. Thornton

largely rests on the generic laurels of his “fire investigator” past as his primary qualification to

justify his credentials as a fire science authority and his origin and cause opinions in this case.

However, Mr. Thornton’s deposition testimony reveals that he has not remained current

in his licensing, continuing education and certifications, and is fundamentally unaware of

significant advancements in fire cause determination under NFPA 921 that goes to the core of

his alleged expertise in this case.

As a harbinger of what would become an exercise of evasiveness in responding to

questions regarding his qualifications and methodology in formulating his fire origin and cause

26 NFPA 921 (2011), 17.1.2. p. 157 is attached hereto as Exhibit E. 27 NFPA 921 (2011) 18.1.1, p. 169 is attached hereto as Exhibit F. 28 A copy of Johnny Thornton’s deposition testimony is attached hereto as Exhibit G.


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opinions in this case, Thornton fails to plainly explain why his report says he was retained to

simply “document an incident of fire” (i.e., merely chronicling the effects of the fire scene)

instead of making an origin and cause determination that necessarily contemplates a much

more rigorous investigative and analytical process.29

Mr. Thornton remains elusive, indirect, and non-responsive when explaining away

notable omissions in his professional credentials and continuing education history that goes

directly to his qualifications to make forensic origin and cause determinations in this matter. Mr.

Thornton acknowledges that he has never been licensed (nor qualified to testify) as an

origin and cause investigator in the State of Louisiana30, and he has allowed his private

investigator license in Texas to expire31, thus disqualifying him from conducting origin and

cause fire investigations in the State of Texas by his own admission.32

Not only do his credentials as a fire origin and cause investigator fail to meet the

minimum statutory requirements for the States of Louisiana and Texas, Mr. Thornton has also

failed to actively maintain a Certified Fire and Explosion Investigator (CFEI) designation issued

by the National Association of Fire Investigators (NAFI) which requires the successful

completion of a written examination based upon current provisions of NFPA 921 and/or NFPA

1033.33

Notably, although Mr. Thornton admits that his application payment for reinstatement

with NAFI requires the completion of 40 hours of continuing education credits to “get my [CFEI]

certification back”34 (1) his curriculum vitae (CV) fails to include an entry that he has ever

obtained a CFEI designation35 and (2) his failure to recall even the most basic details of any

continuing education credits that he has received over the past five years critical to

29 Exhibit G, p. 54, line 6 through p. 55, line 13. 30 Exhibit G, p. 43, line 23 through p. 44, line 12. 31 Exhibit G. p. 42, line 20 through 22. 32 Exhibit G, p. 42, line 25 through p. 43, Line 4. 33 Exhibit G, p. 39, line 4 through page 40, line 9. 34 Exhibit G, p. 39, lines 18 through 22. 35 Exhibit G, p. 41, lines 4 through 16.


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maintaining such a designation severely underscores the credibility of Mr. Thornton’s

representations regarding his past CFEI status.36

Perhaps the most telling indictment of Mr. Thornton’s qualifications to render a fire origin

and cause opinion is his open acknowledgment that he (1) neither reviewed any portion of

NFPA 921 prior to the formulation of his report opinions37, nor (2) had knowledge of or familiarity

with the advances in fire investigation techniques and the changes in methodologies

incorporated in NFPA 921 from the 2008 edition and the then-current 2011 edition, the latter of

which he acknowledged never owning.38 It is apparent that because he did not own the 2011

edition, he did not utilize it when formulating his opinions.

Mr. Thornton’s opinions should not be viewed as reliable, because he does not know

“how” the 2011 edition of NFPA 921 impacts the investigation and analysis of his work, opinion

and report. Moreover, the basis of Mr. Thornton’s opinions are directly undermined by

PLAINTIFFS’ electrical engineering expert, Forest Smith39, who specifically underscored the

importance of applying the investigative methodologies of the 2011 edition of NFPA 921 for

origin and cause determinations rendered in this case.40

As Plaintiffs’ designated expert, Mr. Smith testified that the 2011 edition of NFPA 921

contains advancements and developments in fire investigation methodologies from its 2008

edition predecessor. Furthermore, one should not rely upon the 2008 edition as the 2011

edition has issues that are more specific and the edition raised the bar from the 2008 edition.41

Mr. Smith confirmed his use and reliance upon the 2011 edition of NFPA 921 in the

formulation of his findings set forth in his original October 12, 2012 and supplemental December

3, 2012 reports.42

36 Exhibit G, p. 45, lines 3 through 25. 37 Exhibit G, p. 34, lines 6 through 18. 38 Exhibit G, p. 36, lines 11 through 14. 39 A copy of Forest Smith’s deposition of December 3, 2012 is attached hereto as Exhibit H. 40 Exhibit H, p. 82, lines 5-18. 41 Id. 42 Copies of Forest Smith’s original October 12, 2012 and supplemental December 3, 2012 reports are attached hereto as Exhibit I, en globo.


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Unlike Mr. Smith, Mr. Thornton, however, readily acknowledges that he neither

referenced nor relied upon the fire investigation methodologies from the 2011 edition of NFPA

921 in the formulation of his origin and cause determinations even though the 2011 edition of

NFPA 921 was clearly published and available well prior to the publication of his September 14,

2012 report opinions.

The fact that Mr. Smith utilized the 2011 edition of NFPA 921 is one that he admitted had

more advancements than the 2008 edition, and it calls into question the reliability and

admissibility of Mr. Thornton’s opinions which were based on his “working knowledge” of the

outdated 2008 edition.

Published on January 3, 2011, the 2011 edition of NFPA 921 includes a complete re-

write of Chapter 18 – Fire Cause Determination from its 2008 edition predecessor43 and

includes critical substantive changes to ensure investigator compliance with the scientific

method in the development of a fire cause hypothesis.

The 2011 edition of NFPA 921 more than doubles the content of Chapter 18 from the

2008 edition. Substantial changes and new criteria regarding the collection and consideration of

data (Sec. 18.2), the assessment of ignition sequencing (Sec. 18.4), and the development and

testing of a cause hypothesis (Secs. 18.5 and 18.6) have altered the fundamental methodology

for performing fire cause determination.

In acknowledging that he did not refer to, nor rely upon, NFPA 921 (2011) in reaching his

fire origin and cause opinions, Mr. Thornton summarily ignored what is tantamount to a

comprehensive reformulation of the critical fire cause determination process that is fundamental

to those opinions.

In summary, Mr. Thornton’s putative self-qualification as a fire origin and cause expert is

replete with substantial omissions in his curriculum vitae that are fundamental hallmarks of fire

origin and cause investigators and which he is unable to address in even the most basic of

43 Copies of the 2008 and 2011 editions of NFPA 921, Chapter 18 – Fire Cause Determination are attached hereto as Exhibits J and K, respectively.


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explanations and recent recollections. Mr. Thornton’s self-purported expertise and declarations

that “I find that my methodology meets all of the [NFPA 921] guidelines”44 and “I don’t feel that

my investigation fails in any manner to meet the guidelines of NFPA”45 contrasts markedly with

his acknowledgment that his reliance upon his “working knowledge” of the 2008 edition of NFPA

92146 to formulate a September 14, 2012 origin and cause opinion is per se inappropriate once

the 2011 edition of NFPA 921 is published and available for use and reference by the

professional fire science community.

Such fundamental deficiencies in the forensic qualifications and methodologies of an

individual who has been retained to render critical origin and cause opinions on an alleged $13

million fire loss is beyond the contours of acceptability under the standards of Daubert and its

progeny and warrants the preclusion of those opinions by this Honorable Court.

2. Mr. Thornton’s Methodology is Flawed with Omissions, Speculation and Bias

Mr. Thornton’s highly suspect “working knowledge” of the wrong version of NFPA 921

and his self-acknowledged ignorance of significant changes to the Fire Cause Determination

standard of Chapter 18 are revealed in an investigative methodology, wrought with omissions,

oversights, shortcuts and speculation that makes inevitable the formulation of unreliable fire

origin and cause conclusions drawn therefrom.

I. Mr. Thornton’s investigative Methodology on his origin and cause opinions is flawed because he fails to consider and reconcile the testimonies of two Tango employees, Evan Bowers and Cleo Wilson, regarding the specific origin area of the fire that they observed.

Not only does Mr. Thornton fail to consider and forensically eliminate multiple, viable

causes for the fire loss, but the veracity of his opinions and conclusions is further undermined by

his failure to reconcile sworn testimony from Tango employees, Evan Bowers and Cleo Wilson,

44 Exhibit G, p. 35, lines 2-3. 45 Exhibit G, p. 36, lines 20-21. 46 Exhibit G, p. 34, lines 17 through p. 35, lines 9.


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who were two of the first fact witnesses to respond to the fire scene and who each placed the

fire’s origin at ground-level and outside of the Hyster lift truck’s engine compartment.

Per the June 26, 2012 deposition testimony of Evan Bowers47, Mr. Bowers recalled

being alerted to a fire in D Aisle by a Tango truck driver, whereupon he went directly to the fire’s

location with a hand-held fire extinguisher as one of the very first respondents on the scene.48

Bowers testified that he observed the fire about 10 feet away from the Deep South Forklift49

and that he was one of the first respondents to the scene to assist in manual firefighting

efforts.50

Per the May 31, 2012 deposition testimony of Cleo Wilson51, Mr. Wilson placed the

origin location of the fire near the front-edge of the Deep South forklift, at ground-level and

outside of the forklift’s engine compartment.52

Notwithstanding the testimonies of Messrs. Bowers and Wilson, two of the first

eyewitness respondents who placed the fire’s origin at ground level 10 feet away from the forklift

and its early development to the forklift’s right front tire, Mr. Thornton ignores this evidence, fails

to reconcile this contradictory evidence, fails to test this data in his hypothesis, but instead, he

carelessly concludes in his report that the fire originated inside the engine compartment of the

forklift unit.

(1) that “the area of origin for the original fire was found within the engine compartment of the Hyster 80 that was parked in ‘D’ Aisle”53

In setting forth the scientific method, NFPA 921 4.3.4 provides:

“. . . that the scientific method requires that all data collected be analyzed. This is an essential step that must take place before the formulation of the final hypothesis. …”54

47 A copy of Evan Bowers’ deposition of June 26, 2012 is attached hereto as Exhibit L. 48 See Exhibit L, p. 54, line 22 through p. 55, line 21. 49 See Exhibit L, p.55, line 19-21. 50 See Exhibit L, p. 55, line 22 through p. 56, line 24. 51 A copy of Cleo Wilson’s’ deposition of May 31, 2012 is attached hereto as Exhibit M. 52 See Exhibit M, p. 76, line 2-17. 53 See Exhibit A at p. 10, paragraph 6. 54 See Exhibit D, NFPA 921 (2011), 4.3.4. p. 18.


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Also, in Chapter 17 of the Origin section of NFPA 921, 17.2.1.2 gives clear guidance to

the investigator and instructs:

“… The investigator should use all available resources to develop origin and spread hypotheses and to determine which hypotheses fit all of the evidence available. When an apparently plausible hypothesis fails to fit some item of evidence, the investigator should try to reconcile the two and determine whether the hypothesis or the evidence is erroneous.”55 Mr. Thornton’s methodology is flawed. He does not follow the basic precepts of the

scientific method, and he fails to consider and reconcile the factual accounts of Messrs. Bowers

and Wilson regarding their observations of the ground-level origin and progress of the fire’s

development external to the lift truck. Mr. Thornton completely disregards the sworn testimony

of two, independent eyewitnesses as these facts do not fit into his “engine compartment” origin

theory. Moreover, Mr. Thornton does so without forensic justification or explanation even

though the deposition transcripts of Messrs. Bowers and Wilson were published months prior to

his September 2012 report and were available for his review and consideration.

This example of turning a blind eye to alternative evidence underscores a continuing

pattern by Mr. Thornton to selectively disregard those facts inconsistent with what can only be

explained as his own pre-conceptions of the fire’s origin and cause. Because he does not follow

the methodology as outlined by NFPA 921, Mr. Thornton’s opinions and conclusions are

unreliable and suspect.

Daubert requires the exclusion of Mr. Thornton’s testimony where it can be

demonstrated that it is based upon a flawed methodology or is unreliable. Mover submits that

Mr. Thornton’s testimony is both flawed and unreliable.

II. Mr. Thornton’s Methodology employed to reach his origin and cause opinions is flawed because he failed to consider, tests, and eliminate the FRICTIONAL EFFECTS OF (1) BALES PUSHING along the CONCRETE FLOOR, (2) WIRE ENTANGLEMENT in the lift truck axle, CREATING SPARKS as the originating source of the fire, AND/OR (3) SPARKS CAUSED by the CLAMPS BEING PUSHED along the CONCRETE FLOOR.

55 NFPA 921 (2011), p. 158 is attached hereto as Exhibit N.


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In concluding that the fire originated inside the engine compartment of the lift truck, Mr.

Thornton expressly dismisses the effects of “sparking”, “hot baling wire”, or “sparks from the

forks/bale clamp” as the potential ignition source for the catastrophic fire event.

(3) that the fire was not caused by sparking or hot baling wire, sparks from the forks/bale clamp, lightning, smoking, or overhead lights.56

Notably, Mr. Thornton acknowledges that frictional heating from (1) wire entanglement in

the forklift axle and/or (2) pushing/dragging the forklift’s bale clamps along the Warehouse’s

concrete floor are legitimate ignition source concerns in a warehousing environment filled to

capacity with combustible paper products.57

Mr. Thornton conveniently dismisses the possibility of frictional heating and sparks from

either the pushing of bales on the concrete floor or the dragging of wire from the undercarriage

of the lift trucks, which are two omnipresent hazards associated with the risk of fire in this paper

environment. Furthermore, his flawed approach reflects a naive view and arrogance of the

whole analytical process that NFPA 921 dictates through the use of the scientific method. It is

evident that when faced with facts that do not fit his theory, Mr. Thornton summarily dismisses

them without engaging in the necessary rigor of applying the facts and data to the scientific

method.

Chapter 18 of NFPA sets forth the Fire Cause Determination section.

18.2 Overall Methodology. The overall methodology for determining the cause of the fire is the scientific method as described in the Basic Methodology chapter. This methodology includes recognizing and defining the problem to be solved, collecting data, analyzing the data, developing a hypothesis or hypotheses, and, most importantly, testing the hypothesis or hypotheses. In order to use the scientific method, the investigator must develop at least one hypothesis based on the data available at the time. These initial hypotheses should be considered ‘working hypotheses,’ which upon testing may be discarded, revised, or expanded in detail as new data is collected during the investigation and new analyses are applied. This process is repeated as new information becomes available.”58

56 See Exhibit A at p. 11, paragraph 1. 57 See Exhibit G, p. 335, line 12-20. 58 See Exhibit K, NFPA 921 (2011), 18.2, pp. 169-170.


14

It is evident that Mr. Thornton does not understand the use of the scientific method as he

not only fails to reconcile inconsistent data, he ignores the data and facts as Mr. Wilson testified

that a bale of paper was pushed up against his lift truck by Greg Charles. This action can

create sparks, and we know that Mr. Wilson saw scrape marks on the concrete, consistent with

steel-banded baled paper scraping against the concrete or even sparks from the clamps, and it

further suggests that much force was used when pushing that bale.59

However, Mr. Thornton completely disregards Mr. Wilson’s testimony and the fact that a

bale was pushed up against the lift truck. His methodology is again flawed, and he selectively

chooses facts to fit his theory and opinions. His opinions do not withstand any level of rigor of

reliability and ignore the fact that friction and sparks are real ignition scenarios in this paper filled

warehouse. An objective application of the scientific method would have warranted a full

consideration and testing of these potential causes; however, they are summarily dismissed by

him in his report.

Similarly, Mr. Thornton was equally dismissive of evidence of wire-band entanglement

around the axle of the lift truck that he admitted seeing60, but he fails to articulate with specificity

how and why such a hazardous condition was forensically eliminated as the cause of the fire,

given the testimony of Mr. Wilson that the fire originated near the front tire of the forklift, where

entangled wire was found.61 Mr. Thornton’s short-shrift dismissal of a possible frictional or

spark fire source due to wire entanglement in the lift truck’s front axle is inexplicable with the

rigor that is demanded by the application of the scientific method.62

Mr. Thornton smugly declares that such a hazard was taken into consideration and was

eliminated as a cause of loss, without elaboration or explanation. On page eleven of his report,

he states that the wire hazard was eliminated through analysis of the burn patterns.63 However,

burn patterns are only an indication for analysis under Chapter 17 of NFPA 921 for origin 59 See Exhibit M, p. 204, line 13 through 15. 60 Exhibit G, p. 334, line 25 through p. 336, line 4. 61 See Exhibit G, p. 335, line 21 through p. 336, line 10. 62 See Exhibit G, p. 334, line 25 through p. 335, line 4. 63 See Exhibit A.


15

determination. Chapter 18 of NFPA 921 addresses the “cause” determination. Under the

scientific method in Chapter 18, it is improper to use burn patterns as a determination for the

cause of a fire. It is also improper to utilize burn patterns alone to exclude an origin at the front

of the lift truck and thus eliminate the wire when there are facts and data that contradict this

conclusion. There is eyewitness testimony from Cleo Wilson which places the origin of the fire at

the front of the lift truck64 where “wire” was found around the axle of the lift truck.65 Mover

contends that it is improper for Mr. Thornton to utilize burn patterns to eliminate the wire as a

cause. This is further evidence of his lack of qualifications and lack of understanding of NFPA

921 and how the scientific method is applied to the facts and circumstances.

As further evidence that he failed to properly consider other evidence and the opinions of

the State Fire Marshal, investigative authority for the State of Louisiana, and the Red River

Volunteer Fire Department, Mr. Thornton did not review and did not consider the facts relied

upon by them as well as their cause opinion for the fire at issue.66

Mr. Thornton takes great liberty with the investigative protocols and methodology of

NFPA 921. He does not understand NFPA 921, and he does not apply the rigors of the

scientific method, which is designed to ensure the proper formulation of objective, reliable

conclusions to assist the fact finder at trial. Mr. Thornton fails to follow the prescribed

methodology in NFPA 921, and he fails to utilize appropriate hypotheses to test and evaluate

the friction and/or spark cause theories.

III. Mr. Thornton’s Methodology in coming to his origin and cause opinions is flawed because he failed to consider and eliminate a CATASTROPHIC FAILURE of a METAL-HALIDE LIGHT FIXTURE as the originating source of the fire in the Warehouse.

Mr. Thornton’s disregard for the consideration and forensic elimination of alternative

theories of causation is further evident in his inability to conclusively eliminate the failure of one

of the Warehouse’s high-intensity metal halide lights as a viable cause of the fire. Mr. Thornton

64 See Exhibit M, p 75, line 4-18. 65 See Exhibit G, p. 334, line 25 through p. 335, line 4. 66 See Exhibit G, p. 247, line 12-20.


16

expressly acknowledges that the fire’s “general origin area” is located directly beneath a light

fixture that experienced an electrical short or failure.67

Forest Smith, Plaintiffs’ electrical engineering expert, readily acknowledges in his

deposition of December 3, 201268 that in investigating the Warehouse’s electrical system and

evaluating the evidence, that he could not conclude if the protective lens cover was in place at

the time of the light fixture’s failure.69

Notably, in the critical mission of locating and recovering glass remnants of the metal

halide lamp, Mr. Smith acknowledged that although some glass fragments were recovered, the

source of the glass was inconclusive since (1) a second, non-suspect light fixture that fell to the

ground and shattered was taken as evidence, and (2) the effects of manual firefighting efforts

very well could have resulted in a cross-contamination of the debris field.70

Additionally, Mr. Smith admitted that the glass that was collected could have been

envelope glass, arc tube glass or glass from the head lamp of the lift truck.71 Under a proper

application of the scientific method, he cannot opine on the elimination of the glass, because he

does not know the type of glass and origin of the glass. Therefore, he cannot eliminate the light

as a potential ignition source. Furthermore, he does not know if he has any of the arc tube from

the light above the lift truck72, and this would be essential for him to evaluate the glass and

eliminate that potential cause.

In summary, Mr. Smith was not only (1) unable to confirm that a protective lens was

present in the metal halide light fixture that failed over the fire’s general origin area determined

by Mr. Thornton, but he was also (2) unable to ascertain the type of glass that was recovered as

it could have been from one of three sources. Accordingly, the opinions provided by Mr. Smith

do not exclude the catastrophic failure of the lamp as a cause of the fire. Nevertheless, Mr.

67 See Exhibit G, p. 65, line 23 through p. 66, line 8. 68 See Exhibit H. 69 See Exhibit H p. 43, line 19 through p. 44, line 1. 70 See Exhibit H p. 65, line 15 through p. 67, line 24. 71 See Exhibit H p. 145, line 7-18. 72 See Exhibit H, p. 147, line 1-6.


17

Thornton believes that this catastrophic failure was eliminated. His methodology in eliminating a

cause without knowing all of the facts is fatal to the reliability of his opinions and is inconsistent

with Mr. Smith’s opinion.

Given this inability to exclude the catastrophic failure of the lamp, Mr. Thornton’s opinion

excluding the lamp is in direct contradiction to NFPA 921. Such a significant methodology error

is fatal to Mr. Thornton’s conclusions regarding the origin and/or cause of loss in this matter and

provides yet another stand-alone basis for precluding Mr. Thornton’s opinions and conclusions

for consideration at trial as a matter of law.

IV. Mr. Thornton’s Methodology is unreliable and lacks a factual basis to eliminate the metal halide light as his opinions were formulated before Forest Smith’s expert report had been prepared.

Mr. Thornton’s opinion is rendered suspect when one objectively considers that Forest

Smith did not author his opinion in the form of his expert report until October 12, 2012 and Mr.

Thornton’s report, in which he eliminated the catastrophic failure of the light, was authored on

September 14, 2012, some 28 days before Mr. Smith’s opinions were expressed. Mr.

Thornton’s opinion on the elimination of this cause is unreliable, not based upon sufficient facts

and data and further shows that his methodology is suspect and wrought with factual errors.73

V. Mr. Thornton’s Methodology in his origin and cause opinions is flawed because he failed to consider and to eliminate LIGHTNING as the originating source of the fire in the Warehouse.

On June 1, 2012, Jeffrey Russell Gates, Warehouse Supervisor over Tango’s logistics

operations, was deposed.74 Therein, Mr. Gates recalled that on the January 7, 2010, the date

of the fire, he came into work at approximately 6:00 a.m.;75 that the weather was extremely cold

and windy;76 and that a series of lightning strikes occurred in the evening; causing the power in

the Warehouse to go out and to remain out until he ultimately left for the evening at 10:00 p.m.

73 See Exhibits A and I. 74 A copy of Jeffrey Russell Gates’ deposition of June 1, 2012 is attached hereto as Exhibit O. 75 See Exhibit O, p 85, line 22-24. 76 See Exhibit O, p 86, line 4-9.


18

Mr. Gates testified that he was working inside the office in the dark when lightning struck a

hundred year old Pecan tree, two hundred yards away from the office.77

Notwithstanding Mr. Gates’ testimony about (1) extremely hostile weather conditions on

January 7, 2010, (2) recurring lightning strikes on or near the warehousing premises, and (3) the

interruption of the power supply to the Warehouse only hours before the fire event, Mr. Thornton

completely disregarded any potential role that the effects of lightning strikes may have

played in the fire’s cause. Mr. Thornton denies that there is anything in his file that talks about

lightning strikes the night of the accident.78 Mr. Thornton relies on a STRIKEnet report, even

though he admits that there is an error rate, but does not know what the error rate is,

nevertheless insists that the fire was not started by lightning.79

Notably, Mr. Thornton’s conclusion that “there’s no evidence that fire started from

lightning, and I’m confident of it”80 is based upon his demonstrably erroneous presumption

that there was no lightning activity in or about the premises on the date of loss: “There’s no

information like that. It didn’t happen.”81 However, Mr. Thornton had access to interview Jeff

Gates and to review the deposition of Mr. Gates, but he neglected to collect and analyze the

relevant facts and data surrounding the lightning strike. Mr. Thornton ignores the possibility of

lightning, by not considering “all available resources to develop fire cause hypotheses and

to determine which hypotheses fit all of the credible data available.”82

The methodology applied by Mr. Thornton is suspect, defies logic and ignores un-

contradicted evidence by Mr. Gates on severe storm activity, recurring lightning strikes on the

premises and the loss of power contemporaneous with the lightning strike activity. When

looking at the methodology here, Mr. Thornton simply bases his opinion on one STRIKEnet

report that he does not know the error rate thereof. It is readily apparent that Mr. Thornton likes

77 See Exhibit O, p 88, line 2-20. 78 See Exhibit G, p. 182, line 3 through p. 183, line 16. 79 See Exhibit G, p. 184, lines 1-17. 80 See Exhibit G, p. 184, lines 12-17. 81 See Exhibit G, p. 183, lines 12-16. 82 See Exhibit K, NFPA 921 (2011), 18.2, p 170.


19

to pick and choose his facts, rather than utilizing the rigors of the scientific method. In short, his

flawed methodology is unreliable, not based upon the facts at hand and ignores direct witness

testimony of lightning strikes that night.

Mover submits that in failing to consider, much less thoroughly investigate whether the

active lightning strikes may have caused or contributed to the fire, Mr. Thornton failed to

eliminate these strike events.

In doing so, Mr. Thornton undermines the reliability of his ultimate conclusions, and his

selective consideration of one STRIKEnet report and his intentional disregard of the testimony

of Mr. Gates warrants the preclusion of his opinions for use at trial because his methodology

and conclusions are unreliable and unsupported by the facts and data available to him.

VI. Mr. Thornton’s Methodology in his origin and cause opinions is unreliable and flawed because he failed to consider and eliminate UNAUTHORIZED SMOKING as the cause of the fire in the Warehouse.

Just as Mr. Thornton failed to consider and forensically eliminate evidence of lightning

activity as the cause of the fire, he fails to follow the scientific method and consider evidence of

unauthorized smoking at the Warehouse facility and forensically eliminate it as the originating

cause of the fire. Mr. Thornton admits that he eliminated smoking as a possible cause of the

fire due to the facilities no smoking policy and his belief that the three Tango employees working

the night of the fire did not smoke.83 Mr. Thornton failed to consider that a lit cigarette butt from

one of the many truck drivers in the parking lot could have been the cause of the fire. Mr.

Thornton admits that he did not look around the facility for evidence of smoking.84

In dismissing the possibility that unauthorized smoking may have been the originating

ignition source of the fire within the Warehouse, Mr. Thornton cites the facility’s “no smoking”

policy as the basis of his conclusions and at the same time he acknowledges (1) that truck

drivers at the facility on the night of the fire “could have smoked”, (2) that he “presumed” they

83 See Exhibit G, p. 190, line 3-16. 84 See Exhibit G, p. 190, line 23 through p. 191, line 10.


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were asleep in their vehicles, and (3) that he didn’t even look around the building facility for

evidence of smoking. Mover submits that Mr. Thornton again is guilty of conducting an

unreliable investigation, and he neglected to look for objective evidence of smoking at this “non-

smoking” facility. The two photographs attached as Exhibits P and Q objectively demonstrate

evidence of smoking at the facility; a fact that Mr. Thornton did not investigate and consider

through the application of a rigorous fire origin and cause investigation.85

In fact, Mr. Thornton’s statement that “[t]here’s no information one way or another” about

whether truck drivers to the Warehouse were known to smoke is flatly contradicted by the May

31, 2012 deposition testimony of Sando Anderson86, a shuttle driver for Tango who testified that

he has had to personally remind truck drivers of the premises-wide “No Smoking” policy.87

Mr. Thornton’s misplaced reliance on the existence of a premises-wide “No Smoking”

policy to eliminate smoking as a possible cause of loss consideration when on-site personnel

like Sando Anderson have personally witnessed violations of this policy by third-party truck

drivers is far from the rigorous, methodical elimination of a potential ignition source required by

NFPA 921 and the application of the scientific method.

As has been shown above, Mr. Thornton utilizes “some” facts and data to form the basis

of his opinion, but mover has shown that his focus has been too narrow, and he ignores the

obvious and is unaware of other facts that “frequently” contradict his opinions. As was noted

above in NFPA 921 18.2.1, the investigator should use all data. Mr. Thornton’s methodology of

using selective facts is unreliable and fails to reach the level of scientific rigor that Daubert

demands. This failure to utilize a proper methodology that systematically considers and tests all

available facts and data is alone sufficient grounds to preclude Mr. Thornton’s opinions under

the Federal Rules of Evidence and the principles of Daubert.

85 Photographs of Cigarette Butts attached hereto as Exhibits P and Q. 86 A copy of Sando Anderson’s deposition of May 31, 2012 is attached hereto as Exhibit R. 87 See Exhibit R, p. 77, line 19 through p. 78, line 12.


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VII. Mr. Thornton’s Methodology in reaching his origin and cause opinions is unreliable and flawed because he failed to consider and eliminate a HOT BALE as the cause of the fire in the Warehouse.

In Mr. Thornton’s report, he sets forth four potential ignition sources for the fire cause.

However, as has been shown herein, Mr. Thornton did not collect all of the facts and data to

analyze those utilizing the scientific method. On July 22, 2013, Richard Pakkala, a Sr. Property

Protection Engineer with IP, was deposed88, and he offered another potential ignition source

that Mr. Thornton never investigated, collected data on or even considered as part of his

methodology. Mr. Pakkala described a hot bale as one that can come in to the facility and

smolder for days before it actually starts a fire.89

Accordingly, this “hot bale” represents another basis to demonstrate that Mr. Thornton’s

opinions are not based upon sufficient facts and data, are not reliable, as he has not considered

another potential ignition source that was something that could cause a fire and was a known

hazard by IP.

VIII. Mr. Thornton’s Methodology in determining the ignition temperature of paper in reaching his origin and cause opinions is unreliable and not based upon scientific data.

In reaching an opinion as to a theoretical cause of a fire, an investigator has to identify

the first fuel, identify the ignition source and identify the circumstances that brought the fuel and

ignition source together.90 Chapter 18 of NFPA 18.4.1.2 sets basic understanding that goes into

analysis of the ignition temperature of fuels.

18.4.1.2 Ignition Temperature. The fuel must be capable of being ignited by the hypothesized ignition source. The ignition temperature of the fuel should be understood. It is important to understand the difference between piloted ignition and auto ignition temperatures.91 Importantly, Mr. Thornton does not have a scientific basis for his determination of the

ignition temperature of paper, and importantly it is not within his file. He expressed an opinion

that the ignition temperature of paper is 450 plus or minus, degrees Fahrenheit. Notably, his

88 A copy of Richard Pakkala’s deposition of July 22, 2013 is attached hereto as Exhibit S. 89 See Exhibit S, page 61, line 10-18. 90 NFPA 921 (2011), 18.1., p. 169. 91 See Exhibit K, NFPA 921 (2011), 18.4.1.2, p. 172.


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methodology in determining that was to do a Google search. A Google search that draws data

from all sources is not a reliable, scientific methodology to determine the ignition temperature of

paper.92

As NPFA references in 18.4.1.2, it is important to know the difference between piloted

ignition and auto ignition temperatures, a distinction Mr. Thornton appears not to understand. In

his deposition, when discussing the difference between piloted ignition temperature and auto

ignition temperature of paper, he testified that “paper don’t care” and that “God said it. It’s 450

plus or minus...”93 Mr. Thornton fails to offer any scientific support for this basis or opinion.94

As we have seen throughout this Motion, there is a lack of rigor around the investigative

methodologies employed by Mr. Thornton in his origin and cause investigation. Mover submits

that the undocumented, unconfirmed, and unscientific “Google search” attempt to determine

the ignition temperature of paper is not the appropriate methodology that can withstand

Daubert, as it is not scientific and not reliable.

IX. Mr. Thornton’s Methodology in investigating and concluding that the OCC Paper Fire of January 28, 2010, was due to a rekindle of the original fire is unreliable and not based upon sufficient facts and data.

Following the fire of January 7, 2010, twenty one days elapsed, and then Tango and IP

experienced a second fire at the same facility. The new fire now involved the OCC pad, located

on the north end of the facility, which was not involved in the first fire of January 7, 2010.

Plaintiffs are claiming that this second fire, twenty one days later, is a direct result of the

January 7, 2010 fire. Although Mr. Thornton claims to have investigated that fire and claims to

have determined that it was a rekindle of the first fire, he provides no facts or evidence on how

he reached that conclusion. In fact, Mr. Thornton devotes a total of two sentences, in his report,

in relating the fire of January 28, 2010 to the fire of January 7, 2010.

92 See Exhibit G, p. 160, line 2-22. 93 See Exhibit G, p. 163, line 3-9. 94 See Exhibit G, p. 163, line 14 through p. 164, line 3.


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“Further, the second (2nd) fire at this location was caused by a rekindling of the original fire. This opinion is based on the same methodology as stated within this report.”95

This opinion lacks any basis for Mr. Thornton to have reached this conclusion in his

report. NFPA 921 sets forth the expected methodology. One would expect to see an analysis

of the conditions that existed on January 28, 2010, evidence of what work was ongoing that may

have been a potential fire cause, whether workers out there were smoking, or what type of

equipment was being utilized that day, but we are left to only guess and speculate what facts

and data were considered by Mr. Thornton. This two sentence opinion lacks any evidence to

support the opinion on the rekindle fire, and it is unreliable as there is no methodology employed

by Mr. Thornton in coming to this two sentence opinion. This opinion further exemplifies

Thornton’s ipse dixit logic, without stating any factual basis for his opinion or any scientific basis

for his conclusion. Accordingly, Mr. Thornton’s opinion on the rekindle fire of January 28, 2010

should be precluded as it is unreliable and not based upon any facts and data to support that

opinion.

D. Expectation and Confirmation Bias – The Pitfalls of Expert Objectivity

Individuals offered as fire origin and cause experts have routinely been struck and

precluded from testifying at trial for failing to comply with the scientific principles implicit in NFPA

921’s investigative protocol. Motivations to (1) reverse-engineer conclusions based on pre-

conceived theories of loss or (2) direct the investigative process in a narrowly-tailored manner

are common pitfalls that undermine the integrity of fire origin and cause determinations and

which are often cited in the court’s preclusion of experts at trial.

1. EXPECTATION BIAS: Expert Opinion Struck for Failing to Consider, Explore, and Eliminate Other Possible Causes of Loss Due to a Pre-Conceived Theory of Loss

Chapter 4 of NFPA 921 underscores the importance of avoiding such “Expectation Bias”

in the formulation of fire origin and cause opinions. Expectation bias occurs in the scientific

95 Exhibit A, page 13.


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when investigator(s) reach a premature conclusion without having examined or

considered all of the relevant data. Instead of collecting and examining all of the data in a

logical and unbiased manner to reach a scientifically reliable conclusion, the investigator(s)

uses the premature determination to dictate investigative processes, analyses, and,

ultimately, conclusions, in a way that is not scientifically valid.96

In Chester Valley Coach Works v. Fisher-Price, Inc.,97 the court excluded testimony from

plaintiff’s origin and cause expert (Kaczmarczik) under Daubert where the expert failed to follow

the scientific method set out in NFPA 921 by “putting the cart before the horse” by approaching

his fire investigation with a hypothesis in place and never seriously considering other possible

causes of the fire.98 The court criticized the expert’s lack of objectivity in both having a pre-

conceived notion of what he expected to find, as well as for lapses in his investigative efforts

that included a failure to conduct a site inspection, interview witnesses, and review the

transcripts of two eyewitnesses to the fire:

Kaczmarczik admitted at the Daubert hearing that he approached his investigation of the fire’s origin with the hypothesis that Big Foot #2 could have caused the fire. It is exactly this type of “putting the cart before the horse” that NFPA 921 forbids…It is not difficult to understand the wisdom of the required methodology. An investigator who goes into a fire investigation with preconceived notions of what he expects to find is more likely to find it than an investigator who goes in with an open mind…99 It is clear to us that the methodologies Kaczmarczik used in his fire investigation deviate frequently and significantly from those of the Basic Methodology chapter of NFPA 921, the authoritative guide for fire investigations. These deviations have left us with serious doubts as to the reliability of the methodologies that Kaczmarczik did follow and the conclusion that he reached.100

Rather than approaching the cause of loss investigation with an open mind and

evaluating all of the available facts, data and information using scientifically accepted methods

to objectively surface a leading cause of loss theory, Mr. Thornton instead allowed the validation

96 NFPA 921 (2011), 4.3.8 p. 18. 97 2001 WL1160012 (E.D.Pa., 2001). 98 Id. at 5, 7. 99 Id. at 5. 100 Id. at 8.


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of his pre-conceptions about the fire’s originating source to become the primary objective of the

investigative process. In essence, he drove the investigation to fit his theory and ultimate

opinions.

There are two sections within the Thornton report which confirms his “Expectation Bias”.

On page 3, within the Property Description, Mr. Thornton wrote, “The fire started in an area

described as the “D” Aisle, near the North to South main drive aisle.” This is significant as the

purpose of his investigation is to utilize the scientific method to investigate and determine the

Origin and Cause of the fire. He concludes in his property description where the fire started

before he collects and analyzes the facts and data to come to an opinion. Secondly, on page

12 of his report, he wrote, “The vehicle manifold during normal operations is known to achieve

temperatures within and above the ignition temperature of ordinary combustibles.” Nowhere in

his report does he collect facts and data that allows him to come to an opinion of what the

ignition temperature of ordinary combustibles is, and nowhere does he collect facts and data to

demonstrate that the temperature of the manifold is within or above the ignition temperature of

paper. These two statements, which are unsupported by any facts in his report, demonstrate

the bias that Mr. Thornton has displayed in conducting his origin and cause investigation.

Such departures from the rigors of accepted standards of methodology fundamentally

undermine the integrity and reliability of conclusions through the investigative process and are a

leading basis for courts to preclude the admissibility of an expert’s opinion at trial.

2. CONFIRMATION BIAS: Expert Opinion Struck Due to A Lack of Due Diligence in Thoroughly Exploring All Available Facts and Evidence – Flawed Methodology

A slightly different rationale underpinned the court’s opinion in Pekarek v. Sunbeam

Prods., Inc.101 wherein the court struck the plaintiff expert’s (Komarek) fire cause opinion as

being unreliable due to a litany of presumptions, oversights and omissions in the evaluation of

the available facts relevant to the cause of loss inquiry.

101 672 F.Supp.2d 1161, 1176 (D.Kan.2008).


26

As to Chief Komarek’s opinion that the probable cause of this fire was the electric blanket, the court concludes that the witness failed to follow a reliable method in reaching that conclusion. As defendant points out, the witness apparently based his opinion in part upon an erroneous factual belief that the blanket material was largely destroyed in the fire, when in fact it appears that the edges of the blanket burned, but otherwise the blanket largely survived the fire. Komarek thus failed to fully consider and take account of the specific condition of the blanket in determining the source of the fire. The failure to fully consider the condition of the primary item suspected to be the fire’s source cannot be considered a reliable method of fire investigation. Komarek also apparently failed to undertake any investigation to determine the specific manner or mechanism that allegedly ignited the fire. Also troubling is Komarek’s failure to investigate or consider the significance of the two tripped or “off” circuit breakers in the panel, and whether their condition provided any evidence of the source of the fire. Additionally, [his] report and deposition testimony reflect a failure to fully account for what was obviously a possible alternative cause of the fire.102 Chief Komarek failed to pursue this line of inquiry, however, which undermines the reliability of his method of determining that the blanket was the probable cause of the fire. In sum, for the reasons stated above, the court concludes Chief Komarek’s opinion that the blanket was the probable cause of this fire does not satisfy the requirements of Daubert and should not be admitted at trial.103

Similarly, in Bryte ex rel. Bryte v. Am. Household, Inc.104, the expert’s failure to

adequately consider and eliminate several identifiable alternate potential sources of fire as the

cause of loss was central to the court’s preclusion of the expert’s cause of loss opinion in the

fire fatality of a physically disabled woman unable to escape from a burning recliner while alone

in her home. Although the expert concluded that the cause of the fire was “improper use of an

electric throw blanket” by the decedent in trying to keep warm, the expert’s failure to

systematically consider and eliminate a nearby candle, table lamp, electrical extension cord, or

even the electrical wall outlet itself as possible sources of the originating fire undermined the

reliability of the expert’s opinion, and thus served as the basis of the opinion being struck for

102 Id. (Emphasis added). 103 Id. at 1177. 104 429 F.3d 469 (4th Cir.2005).


27

being “inconsistent with the NFPA standards, which require investigators to exclude ‘[a]ll other

reasonable origins and causes.’”105

Whereas the Court in Chester Valley Coach Works, supra, underscored how the expert’s

adherence to a pre-conceived theory of loss tainted the reliability of the expert’s conclusions

in that the objectivity of his methodology of collecting and evaluating facts was compromised in

his pursuit of validating his pre-conceived theory, the Pekarek and Bryte Courts, supra, took

exception with their respective expert’s lack of due diligence in failing to consider, explore

and eliminate other possible causes of loss using accepted methodologies and based on

facts and evidence readily available to him prior to the formulation of his ultimate cause of loss

opinion.

Such a lack of due diligence is characteristic of “Confirmation Bias”, another pitfall of

purported experts recognized by NFPA 921 that undermines the reliability of their origin and

cause opinions. Confirmation Bias is defined in NFPA 921 4.3.9.106 NFPA 921 recognizes that

different hypotheses may be compatible with the same data. The investigator should try to

disprove the hypothesis. “Confirmation bias occurs when the investigator instead tries to prove

the hypothesis. This can result in failure to consider alternate hypotheses. A hypothesis can be

said to be valid only when rigorous testing has failed to disprove the hypothesis.”107 Once all of

the available facts and data have been analyzed, the investigator then must select and test

hypotheses related to the fire’s origin and then the fire’s cause. NFPA 921 details the proper

methodology to reach conclusions throughout the document. Mr. Thornton did not test his

hypotheses.

In 4.3.6. Testing the Hypothesis (Deductive Reasoning)

“The investigator does not have a valid hypothesis unless it can withstand the test of careful and serious challenge….The testing process needs to continue until all feasible hypotheses have been tested and one is determined to be uniquely consistent with the facts, and with the principles of science. If no

105 Id. at 478 (quoting NFPA 921 § 2-3.6 (1999 ed.)). 106 NFPA 921, (2011), 4.3.9, p 18. 107 Id.


28

hypothesis can withstand an examination by deductive reasoning, the issue should be considered undetermined.”108 In 4.5, Level of Certainty, and subparagraphs (2) Possible …If two or more hypotheses

are equally likely, then the level of certainty must be “possible”.… Only when the level of

certainty is considered “probable” should an opinion be expressed with reasonable certainty.”109

In Chapter 17, Origin Determination, 17.7, Selecting the Final Hypothesis:

“…the investigator should review the entire process, to ensure that all credible data are accounted for and all credible alternative hypotheses have been considered an eliminated. …A critical question to be answered by fire investigators is, “Are there any other origin hypotheses that are consistent with the data?” The investigator should document the facts that support the origin determination to the exclusion of all other potential origins.”110

In Chapter 18, Fire Cause Determination, 18.7, Selecting the Final Hypothesis:

“…The investigator should review the entire process, to ensure that all credible data are accounted for and all credible cause hypotheses have been considered and eliminated.”111

Unfortunately, Mr. Thornton’s suspect investigative methodologies and his lack of

systematic diligence produced fire origin and cause conclusions that are per se unreliable,

untested, unsupported by the evidence, and reflect bias in his work and conclusions. This is the

very “evidence” that Daubert compels be withheld from presentation to the fact finder through

the Court’s gatekeeping role.

CONCLUSION

Johnny Thornton is unqualified as an expert on fire origin and cause investigation, and

his opinions are based on incomplete facts and data. He conveniently dismisses, if not

completely disregards, data that fails to support his opinions. In reviewing his opinions, we are

left to wonder why he would ignore direct evidence, direct testimony and alternative causes for

the fire. He cannot bury his head in the sand and ignore relevant, credible evidence that is in

direct conflict with the factual basis for his opinions. He ignores the eyewitness testimony on the

108 Id. 109 NFPA 921 (2011), 4.5.1, p.19. 110 NFPA 921 (2011), 17.7, p. 168–169. 111 NFPA 921 (2011), 18.7, p. 174.


29

origin of the fire from Evan Bowers and Cleo Wilson. He ignores the eyewitness account of

lightning strikes from Jeff Gates. He summarily dismisses alternative causes without going

through the cause analysis that is at the heart of the scientific method as is outlined in Chapter

18 of NFPA 921. His report lacks the factual support for his opinions, lacks an explanation of

his analysis, and his actions reflect a bias and this is telling when one determines that he was

able to eliminate a metal halide light as a cause when his opinion came twenty-eight days

before Forest Smith’s report even addressed this issue. Furthermore, Smith is not able to even

tell if the glass that he examined came from the light at issue.

Mr. Thornton’s work confirms that he selects favorable facts to fit his theory of the case

rather than conducting an objective assessment under the methodologies and principles as

outlined in NFPA 921. Mr. Thornton’s suspect and unreliable approach to the formulation of his

opinions deals a fatal blow to their reliability for purposes of admissibility under the Federal

Rules of Evidence and Daubert.

As such, this Honorable Court should grant DEEP SOUTH’s Motion to Strike/Daubert

Challenge as to Plaintiffs’ Expert, Johnny Thornton, and thereby preclude his appearance and

testimony at trial for all purposes for failing to present a methodical, reliable, independent,

expert investigation and assessment of the origin and cause of the Fire Loss event at issue in

this litigation.

Respectfully submitted: /s/ Brian T. Butler_______________ Brian T. Butler, #17499 (T.A.) G. Dwayne Maricle, #20938 Sean M. Casey, #23447 MARICLE & ASSOCIATES 8545 United Plaza Blvd., Suite 350 Baton Rouge, Louisiana 70809 Telephone: (225) 924-9585 Facsimile: (225) 924-9596 Attorneys for Deep South Equipment Co.


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CERTIFICATE OF SERVICE

I hereby certify that a copy of the above and foregoing has been served on the following

counsel of record via the Court’s electronic filing system on the 14th day of February, 2014:

John C Hart, Esq. Bruce H Rogers, Esq. Brown Dean Wiseman Proctor Hart & Howell, LLP 200 Fort Worth Club Bldg 306 W 7th St, Ste 200 Ft Worth, TX 76102-4905 817-332-1391 817-870-2427 (fax) [email protected] [email protected]

William M Bass, Esq. Kristen N Broussard, Esq. Voorhies & Labbe (LAF) P O Box 3527 Lafayette, LA 70502 337-232-9700 337-235-4943 (fax) [email protected] [email protected]

James A Mijalis, Esq. Lunn Irion Salley Carlisle & Gardner P O Box 1534 Shreveport, LA 71165-1534 318-222-0665 318-220-3265 (fax) [email protected]

Robert H Shemwell, Jr., Esq. Brian D Landry, Esq. Weems Schimpf Gilsoul Haines Landry & Carmouche 912 Kings Hwy Shreveport, LA 71104 318-222-2100 318-226-5152 (fax) [email protected] [email protected]

Francis J Grey, Jr., Esq. Sean Corgan, Esq. Lavin ONeil Ricci Cedrone & DiSipio 190 N. Independence Mall West, Ste 500 Philadelphia, PA 19106 215-627-0303 215-627-2551 (fax) [email protected] [email protected]

/s/ Brian T. Butler .

BRIAN T. BUTLER


mailto:[email protected]









IN THE UNITED STATES DISTRICT COURT FOR THEWESTERN DISTRICT OF LOUISIANA

SHREVEPORT DIVISION

INTERNATIONAL PAPER COMPANY and § CIVIL ACTION NO. 11-CV-00017FACTORY MUTUAL INSURANCE §COMPANY, §

Plaintiffs, §§

vs. §§ JUDGE STAGG

DEEP SOUTH EQUIPMENT COMPANY, §NACCO MATERIALS HANDLING §GROUP, INC., OSRAM SYLVANIA §INC., RST INSURANCE COMPANY, §UVW INSURANCE COMPANY, and XYZ §INSURANCE COMPANY, § MAGISTRATE JUDGE HORNSBY

Defendants, §

MEMORANDUM IN RESPONSE TO DEEP SOUTH EQUIPMENT COMPANY’S AND NACCO MATERIAL HANDLING

GROUP’S MOTIONS TO STRIKE/DAUBERT CHALLENGE OF PLAINTIFF’S EXPERT, JOHNNY THORNTON

MAY IT PLEASE THE COURT:

Now into court, through undersigned counsel, comes International Paper Company (“IP”)

and Factory Mutual Insurance Company (“FMIC”), who in opposition to the Motions to

Strike/Daubert Challenge of Plaintiff’s Expert, Johnny Thornton filed by defendants Deep South

Equipment Company and Nacco Materials Handling Group (collectively the “Defendants”)

respectfully submit the following:

I. Introduction.

The purpose of Rule 702 of the Federal Rules of Evidence, as interpreted by Daubert v.

Merrill Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S.Ct. 2786 (1993), is to ensure that those

Plaintiff’s Response to Defendant’s Motion to Strike Johnny Thornton Page 1 of 24


persons who are allowed to give opinion testimony are qualified in the field in which they are

testifying, that their testimony is reliable and that their testimony is relevant to the facts of the case

before the court. Mr. Johnny Thornton is a qualified expert in the field of fire cause and origin, the

methods he utilized in this case were reliable and the conclusions he has drawn will assist the trier

of fact to understand the evidence in this case.

II. Law and Analysis.

A. Fed.R.Evid. 702 should be construed liberally to include reliable and relevanttestimony of expert witnesses.

While the Court in Daubert, reaffirmed the role of the court as gatekeeper, it likewise noted

the “liberal thrust of the Federal Rules and their general approach of relaxing the traditional barriers

to opinion testimony.” Daubert 509 U.S. at 588 citing Beach Aircraft Corp. V. Rainey, 488 U.S., at

169, 109 S.Ct., at 450 (citing Rules 701 to 705). Further, “[a] review of the caselaw after Daubert

shows that the rejection of expert testimony is the exception rather than the rule.” The Advisory

Committee Notes, 2000 Amendments to Fed.R.Evid 702. There are baseline standards of reliability

and relevance which must be met, however the “Daubert analysis should not supplant the trial on the

merits.” Pipitone v. Biomatrix, Inc. 288 F.3d 239, 250 (5th Cir.2002). “[T]he trial court’s role as

gatekeeper is not intended to serve as a replacement for the adversary system.” Fed.R.Evid. 702

Advisory Committee Notes, 2000 Amendments citing United States v. 14.38 Acres of Land Situated

in Leflore County, Mississippi, 80 F.3d 1074, 1078 (5th Cir. 1996).

An inquiry under Fed.R.Evid. 702, as interpreted by Daubert and its progeny, involves a

three step process. The first step requires a determination that a person is an expert by virtue of his

knowledge, skill, experience, training or education. After that hurdle, the court should engage in a



two part analysis: “1) determining whether the proffered testimony is reliable, i.e. assessing whether

the reasoning or methodology underlying the testimony is scientifically valid, and 2) determining

whether that reasoning or methodology can be properly applied to the facts in issue; that is whether

it is relevant.” See Deep South’s Memorandum in Support of its Motion to Strike, Page 3 citing

Curtis v. M&S Petroleum, Inc. 174 F.3d 661 (5th Cir. 1999). Thus, to shorten the inquiry; 1) is a

person an expert, 2) is his testimony reliable from a scientific or technical perspective and 3) is his

opinion relevant to the facts of the case at bar.

In the matter before the court, Defendants seek to exclude the testimony of Johnny Thornton

based upon two purported deficiencies, both of which deal with the second step of the test,

reliability.

“Deep South Equipment Company (“DEEP SOUTH”) moves this Honorable Courtto strike or otherwise exclude, under Daubert, ..... expert, Johnny Thornton, ongrounds that his opinions are based on (1) inadequate facts and data and 2) are notthe result of a reliable application of any principles and methodologies of NFPA921 to the facts of this case...” See Deep South’s Memorandum in Support of itsMotion to Strike, Page 1. (Emphasis Ours)

While those are two proper areas for inquiry under Daubert and will be addressed herein, the attack

on Mr. Thornton’s qualification as an expert when such was not raised in Defendants’ Motion to

Strike is unnecessary and a back door attempt to influence the court on the issue of reliability.

B. The legal standard to qualify an expert in a particular field is based uponknowledge, skill, experience, training or education and the inquiry should be aminimum standards test.

While Defendants’ Motion to Strike does not seek to disqualify Mr. Thornton as an expert,

in view of the fact that Defendants addressed such issues in their Memorandum in Support of their

Motion to Strike, plaintiffs will respond. It is important to note that Defendants cite neither statutory



nor jurisprudential authority setting forth the standard for qualifying a person as an expert witness.

Fed.R.Evid 702 states in pertinent part “[I]f scientific, technical, or other specialized

knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a

witness qualified by knowledge, skill, experience, training or education, may testify thereto in

the form of an opinion or otherwise.” Emphasis Ours. While Plaintiff feels that Mr. Thornton’s

qualifications as an expert in the field of fire cause and origin are superior, the bar that he needs to

meet to qualify as an expert do not require that he be “highly qualified in order to testify about a

given issue.” Huss v. Gayden, 571 F.3d 442,452 (5th Cir. 2009). Further,

“Rule 702 should be broadly interpreted on the basis of whether the use of experttestimony will assist the trier of fact. The fact that a proffered expert may beunfamiliar with pertinent statutory definitions or standards is not grounds fordisqualification. Such lack of familiarity affects the witness’ credibility, not hisqualifications to testify.” Davis v. Combustion Engineering, Inc. 742 F.2d 916, 919(6th Cir. 1984).

Mr. Thornton began his career as a firefighter in 1963, was promoted into the position of fire

investigator captain level in 1976, and upon his retirement in 1986, formed a private company

dedicated to fire/explosion examinations and investigations. His career spans over 45 years and he

has been called to testify regarding his area of expertise over seventy times. Notwithstanding

Defendants’ attack on Mr. Thornton’s certifications at the time he prepared his report, his

knowledge, skill, experience and training are sufficient to qualify him as an expert in the field of fire

cause and origin. See Report and CV of Johnny Thornton attached as Exhibit “A.”

Defendants spend four pages of their Memorandum in an attempt to disqualify Mr. Thornton

as an expert witness. They do not however, cite any case law or statutory authority in support of their

contention. The sole applicable inquiry that the court should engage in at this point in the analysis



involves a determination of whether Mr. Thornton is an expert in fire cause and origin based upon

his knowledge or skill or experience or training or education. Any reference by Defendants to his

report or the publications, standards, methods or principles he used in his analysis are irrelevant to

the above inquiry.

Initially, Defendants contend that because Mr. Thornton let his certification as a fire

investigator lapse, he is no longer an expert. This is followed with the assertion that Mr. Thornton

does not qualify as an expert because “did not utilize it [the 2011 version of NFPA 921] when

formulating his opinions” because he does not own a copy of the 2011 version of NFPA 921. See

Deep South’s Memorandum in Support of Motion to Strike, Page 8. Neither assertion is a valid

reason for his disqualification as an expert.

“A witness who is otherwise qualified is not disqualified for his lack of credentials.” McCoy

v. Whirlpool Corp., 214 F.R.D. 646, 650 (D.Kan.2003). The aspersions cast against Mr. Thornton

regarding his credentials by Defendants are merely an attempt to divert the Court’s attention away

from Mr. Thornton’s knowledge, skill, experience, training and education. Those factors are the true

basis of his expertise. Further they are the basis of obtaining the certifications in the first place and

should be the sole focus of the inquiry. Mr. Thornton let his Texas private investigator’s license

lapse after his investigation, but eight days before his report was drafted, which has no bearing on

his knowledge of fire investigations, rather it is a prerequisite to conducting fire investigations in

the State of Texas. See Affidavit of Johnny Thornton attached as Exhibit “B.” Mr. Thornton

previously held his certification as CFEI but allowed it to lapse for failure to pay his dues when

Hurricane Ivan hit Texas, greatly affecting his business. He has subsequently regained his



certification. See Affidavit of Johnny Thornton attached as Exhibit “B.” To the extent that

Defendants argue that Mr. Thornton needs the CFEI certification on top of his experience and

training, this is a factor that goes to the weight and not the admissibility of his testimony. Huss, 571

F3d. At 452.

In the second area of its attack on Mr. Thornton’s qualifications, Defendants have put the

proverbial cart before the horse. Defendants argue that because Mr. Thornton allegedly did not

follow the methodology set forth in the 2011 version of NFPA 921, he should not be qualified as an

expert. There are two major flaws with that line of reasoning. The first is that the methodology of

the expert is tested after the person is qualified as an expert. It is the basis for the “reliability” prong

according to Daubert. “The reliability prong mandates that expert opinion be grounded in the

methods and procedures of science ...” Johnson v. Arkema Incorporated, 685 F3d. 452, 459 (5th Cir.

2012) citing Daubert, 509 U.S. at 590, 113 S.Ct. 2786. Conversely, the inquiry into the qualification

of a witness as an expert is engaged in prior to and without regard to his opinion and is based upon

knowledge, skill, training, experience or education. Once a person is qualified as an expert, the

inquiry can begin into the reliability of his opinions based upon the methods he used in arriving at

such opinions.

The second flaw is that under Defendants’ reasoning, only an expert who complied with the

version of NFPA 921 in effect at the time he issued his report would be qualified to be an expert.

There is no such requirement under Fed.R.Evid 702, nor is there jurisprudence which states

the above. To follow such reasoning would negate the necessity of the reliability prong of

Fed.R.Evid. 702. Further, such logic would lead to the circular argument that in order for a person



to qualify as an expert, he must follow certain methodology and an expert that followed such

methodology would per se be reliable because the court would have already tested his reliability in

order to qualify him in the first place. How then would a party retain an expert? The expert would

have to complete his report before a party could determine whether he could be qualified as an

expert. The proper Daubert analysis requires three steps, the first of which is to determine whether

a person has the necessary knowledge or skill or experience or training or education in the applicable

field. That is the sole inquiry necessary on qualification as an expert and Mr. Thornton meets those

requirements.

C. Fed.R.Evid. 702 and Daubert require that in order to satisfy the reliabilityprong of the inquiry the opinions of the expert be grounded in the methods andprocedures of science.

Defendants are improperly attempting to steer this court to the pre-Daubert concept of

“general acceptance” by stating that the 2011 version of NFPA 921 is the sole acceptable method

of determining the cause and origin of fire. According to the 2011 version of NFPA 921, “[t]he

purpose of this document is to establish guidelines and recommendations for the safe and

systematic investigation or analysis of fire and explosion incidents.” See 2011 NFPA Excerpts

attached as Exhibit “C.” Pg. 921-8. In order to accomplish its stated purpose, NFPA 921 sets forth

a basic method, which is in fact, based upon the ages old “scientific method,” not some new formula

which was conceived by the technical committee of NFPA. The concept here is that NFPA 921 was

derived from the scientific method; scientific method was not derived from NFPA 921.

Daubert and its progeny focus on methodology in order to determine reliability. “[T]he party

seeking to have the district court admit expert testimony must demonstrate that the expert’s findings



and conclusions are based upon the scientific method, and, therefore, are reliable.” Johnson v.

Arkema, Inc., 685 F.3d 452 at 459, (5th Cir. 2012) citing Curtis, supra at 668. Defendants would

have the court find that the 2011 version of NFPA 921 is the only acceptable method of determining

fire cause and origin. It should be noted, that the 2014 version of NFPA 921 has now been published

which begs the question under Defendants’ logic, would any investigation undertaken pursuant to

the 2011 version of NFPA 921 be sufficient. The obvious answer is yes. Any changes to NFPA 921

could be the subject of cross examination of the witness to determine the sufficiency of his

investigation and would go to the weight of such testimony.

D. Despite contentions to the contrary, the methods utilized by Mr. Thornton in hisinvestigation and analysis were consistent with those recommended underNFPA 921.

Notwithstanding the fact that Mr. Thornton did not cite the 2011 version of NFPA 921 in his

report, the methods that he utilized in arriving at his opinions were based on the scientific method,

which is the basis of all versions of NFPA 921. Mr. Charles R. Watson is a senior fire investigator

employed by SEA Limited in Atlanta Georgia and is the Chairman of the Technical Committee on

Fire Investigations which presides over the guidelines published in NFPA 921. Mr. Watson is a

Certified Fire Investigator through the International Association of Arson Investigators and a

Certified Fire and Explosion Investigator through the National Association of Fire Investigators.

He has reviewed both the report of Johnny Thornton as well as his deposition. He concluded that

Mr. Thornton “applied the principles of the scientific method in connection with his

investigation,” “the scientific method is the appropriate and accepted methodology for fire

investigation,” and that “his [Mr. Thornton’s] investigation should be considered reliable from



a standpoint of the procedures followed.” See Affidavit of Charles R. Watson attached as Exhibit

“D.” In his role as Chairman of the Technical Committee which promulgates NFPA 921, Mr.

Watson is unquestionably the proper person to determine whether the guidelines set forth in NFPA

921 were met. The inquiry into the reliability of the methods utilized by Mr. Thornton should end

here.

E. The methods utilized by Mr. Thornton were consistent with the ScientificMethod.

In Sections 2.I. through 2.VII. of their Memorandum, Defendants has conveniently picked

incomplete portions of Mr. Thornton’s deposition, his report and the depositions and reports of

others in an attempt to convince the court that Mr. Thornton’s methods were not sound. These

assertions repeatedly use the phrase “failed to consider and eliminate.” The methods set forth under

NFPA 921 recommend that the investigator consider all of the various hypotheses and eliminate only

those that are not supportable (or refuted) by the facts discovered through further examination.” See

Exhibit “C.” Pg. 921-173. For all that remain (were not eliminated), the investigator should apply

the scientific method to determine the possibility or probability that they were the cause of the fire.

Specifically the 2011 version of NFPA 921 directs the investigator to test each hypothesis.

18.6 Testing the Cause Hypothesis. Each of the alternate hypotheses that weredeveloped must then be tested using the Scientific Method. If one remaininghypothesis is tested using the “scientific method” and is determined to beprobable, then the cause of the fire is identified. (See Exhibit “C.”Pg. 921-173)

The NFPA 921 gives further guidance as to how to test the hypotheses.

18.6.2 Deductive Reasoning. Testing of the hypothesis is done by the principle ofdeductive reasoning, in which the investigator compares the hypothesis to allthe known facts as well as the body of scientific knowledge associated with



the phenomena relevant to the specific incident. Ultimately, the causedetermination is arrived at through the testing of cause hypothesis. (SeeExhibit “C.”Pg. 921-173)

4.3.6 (in pertinent part) A hypothesis can be tested either physically by conductingexperiments or analytically by applying scientific principles in “thoughtexperiments.” (See Exhibit “C.”Pg. 921-18)

In other words, the investigator is to apply his knowledge, skill, experience, training and education

to the physical evidence and witness testimony to compare against the hypothesis to determine the

likelihood that each such hypothesis actually occurred. Again, the 2011 version of NFPA 921 gives

further guidance on how to categorize the results of the testing in association with the investigator’s

opinion.

4.5.1 The investigator should know the level of certainty that is required forproviding expert opinions. Two levels of certainty commonly used areprobable and possible:

(1) Probably. This level of certainty corresponds to being morelikely true than not. At this level of certainty, the likelihoodof the hypothesis being true is greater than 50 percent.

(2) Possible. At this level of certainty, the hypothesis can bedemonstrated to be feasible but cannot be declared probable. If two or more hypothesis are equally likely, then the level ofcertainty must be “possible.”

4.5.2 If the level of certainty of an opinion is merely “suspected,” the opinion doesnot qualify as an expert opinion. If the level of certainty is only “possible,”the opinion should be specifically expressed as “possible.” Only when thelevel of certainty is considered “probable” should an opinion be expressedwith reasonable certainty. (See Exhibit “C.”Pg. 921-19)

If Mr. Thornton is able to determine one cause that is “probable,” which means that it is

greater than fifty percent, then he is able to give an opinion. The fact that Mr. Thornton does not find

that any of the other alleged causes rises to a level above possible, does not mean that he did not



consider them, it merely means that he did not find any one of them probable.

As will be more specifically addressed below, Defendants’ use of the phrase “failed to

consider” is not accurate. Further, Defendants’ insinuation that each hypothesis must be

“eliminated” is misleading. Some hypothesis may be eliminated, while others may be found to be

“possible” but not “probable.” The conclusions that Mr. Thornton has drawn based upon the

application of his expertise to the physical evidence and witness statements do not belie that his

methods were flawed. Each one of Defendants’ contentions will be addressed in turn.

1. Conflict of Testimony Between Cleo Wilson and Evan Bowers. It is Mr. Thornton’s

job to sift through, analyze and evaluate not only the physical evidence, but the witness testimony

based upon his knowledge, skill, experience, training and education. The fact that Mr. Thornton did

not stop his inquiry, the moment he heard conflicting testimony, does not mean that he did not

consider it. He merely looked at all of the evidence to draw a conclusion.

Defendants point to only two of the early witnesses on the scene, when in fact, there were at

least four witnesses identified and deposed. Greg Charles was the first person at the actual scene of

the fire. In fact, it was he who alerted Mr. Wilson and Mr. Anderson of the existence of the fire. Mr.

Charles testified “I mean that the forklift itself was on fire, the engine compartment” See Exhibit

“E.” Charles Depo Pg. 88, Lines 3-4 and “So I ran down to it. I looked at the forklift and the engine

compartment was on fire. And I ran in the office, and I told Cleo and Sando, we got a fire.” See

Exhibit “E.” Charles Depo Pg. 88, Lines 17-20. According to Mr. Anderson “[t]he fire was under

the lift coming from behind the lift and in front of the lift by the blades.” See Exhibit “F.” Excerpts

from Anderson Depo Pg. 54, Lines 13-14. According to Mr. Wilson, the fire was “close by the front



of the lift right there by the tire.” See Exhibit “G.” Excerpts from Wilson Depo Pg. 76, Lines 15-16.

Mr. Bowers is the only witness who said the fire was 10 feet away from the fork lift and according

to Mr. Charles, he was the last to arrive. See Exhibit “E.” Charles Depo Pg. 93, Lines 22-23.

Again, Mr. Thornton’s job is to analyze witnesses testimony, physical evidence and reports to draw

a conclusion.

2. Mr. Thornton did consider the frictional effects of pushing bales, wire entanglement

and sparks from the clamps as originating sources of the fire. Defendants do not like the conclusion

so they are attacking the methodology utilized to reach the conclusion. Mr. Thornton’s report states

as follows:

Wire was found to have bound to the undercarriage system of the wheel/axleassembly. The wire was the size associated with the bales of paper goods beingstored. The examination of the undercarriage revealed no evidence of extendedportion(s) of that type wire. Dragging or rubbing of this type wire may be associatedwith friction heating for ignition. Based upon the definitive directional and/orintensity type burn patterns localized fire damage and the above listed process, therewas no evidence that would support a theory of this type of ignition. See Exhibit “A.”Thornton Report Pg. 11.

Further, he stated in his deposition, “[t]he whole analytical process of the sequence of the fire

discovery would eliminate that it was a spark from an wire dragging or even lift – the forks, the

squeezer forks.” See Exhibit “H.” Excerpts from Thornton Depo pg. 335, lines 17-20. These are

not the statements of a person who failed to consider the possibility, but one who considered it,

analyzed the evidence and eliminated it. The method is what is being tested here, not the conclusion.

“The focus should not be on the precise conclusions reached by the expert, but on the methodology

employed in reaching those conclusions.” Pekarek v. Sunbeam Products, Inc. 672 F.Supp.2d 1161

at 1168 (D.Kan.2008) citing Bitler v. A.O. Smith Corp., 400 F.3d 1227 at 1233 (10th Cir. 2004).



3. Mr. Thornton did consider the Metal-Halide Light Fixture as an originating source

of the fire. Defendants have attempted to find fault in Mr. Thornton’s methodology because he

allegedly failed to “conclusively eliminate” the failure of a Metal-Halide light fixture above the

origin of the fire. This assumes a standard which is not applicable under NFPA 921. The standard

in order to issue an opinion is “probable.”

Defendants contend that Mr. Thornton’s opinion is in conflict with Plaintiff’s electrical

engineer, Forest Smith’s testimony. This is simply not the case. Mr. Smith’s report and

supplemental report clearly state that he opines that the lighting fixture and lamp located above the

subject Hyster forklift were not the cause of the fire. See Exhibit “I.” Forrest Smith Report Pg. 17

and Supplemental Report Pg. 1. Under questioning from Defendants and in keeping with the

scientific method, Mr. Smith conceded that the event was “possible,” however, the fact that he

concluded that it was not “probable” is evident from his report.

Defendants seem to have difficulty with the concept that “possible” or more than one

“possibility” can exist in concert with “probable” given the same set of circumstances and evidence.

Possible means that it could have happened and probable means that, more likely than not, it did

happen. As discussed above, NFPA 921 contemplates this exact type of situation. When there are

more than one hypotheses which can not be eliminated, the investigator is to test each one of them.

If one rises to the level of probable, then the expert is allowed to opine on such. Probable and

possible exist in the same scenario and the fact that one explanation is possible, does not foreclose

on another explanation as being probable.

4. The date of Forest Smith’s report is not indicative of when he expressed his opinion



to Mr. Thornton. Defendants attempt to create an issue where none exists with regard Mr.

Thornton’s report because it is dated prior to Mr. Smith’s report. Mr. Smith’s report was dated 28

days after Mr. Thornton’s report, however Mr. Smith states on page 17 in his report that he consulted

with Mr. Thornton. See Exhibit “I.” Smith Report Pg. 17. Likewise, Mr. Thornton confirms this in

his expert report dated September 14, 2012.

The light fixture was observed, collected and preserved for inspection(s) as may havebeen required or requested. Based on the directional and/or intensity type burnpatterns found at the general area of origin, this fixture was not suspected as thesource of the heat of ignition or the cause of this fire. These findings wereconfirmed as being the opinion of the electrical engineer involved with thisexamination. (See Exhibit “A.” Thornton Report Pg 8) (Emphasis Ours)

Mr. Thornton clearly consulted with Mr. Smith which is entirely consistent with the scientific

method. He considered the possibility and based upon data collected determined that it was not a

probability.

5. Mr. Thornton did not fail to consider lightning as a potential originating source of the

fire. Mr. Thornton clearly lists lightning as a potential source of heat for ignition in his report.

“Lightning strike. There was no evidence of lightning activity in the area.” See Exhibit “A.”

Thornton Report Pg. 11. Again, Defendants use the term “failed to consider” when it is clear that

Mr. Thornton did consider the possibility. Defendants acknowledge in their own Memoranda that

Mr. Thornton obtained the STRIKEnet report for the day of the fire. Further in his deposition, they

question Mr. Thornton about his walking the perimeter of the scene and he states that a lightning

strike is one of the things included in what he is looking for. See Exhibit “H.” Excerpts from

Thornton Depo Pg. 182, lines 12-19. Interestingly, the fire occurred at an open walled structure, in

which one worker was under the structure (Charles), two workers in the office (Anderson and



Wilson) and one worker outside the structure (Bower), along with a number of truck drivers waiting

to deliver their loads and not one person mentioned a lightning strike at the time of the fire. The fact

that Mr. Thornton did not find credible evidence of a lightning strike as a source of heat for ignition,

does not mean that he did not consider it. Obviously he did and determined that it was not probable.

6. Mr. Thornton did consider the possibility of unauthorized smoking as a possible cause

of the fire. Mr. Thornton clearly lists unauthorized smoking as a potential source of heat for ignition

in his report. “Careless Smoking. This factor was eliminated by the fact that the lift truck operators

working in the storage facility did not smoke.” See Exhibit “A.” Thornton Report Pg. 11. Again,

Defendants use the term “failed to consider” when it is clear that Mr. Thornton did consider the

possibility. In fact, Defendants questioned Mr. Thornton about his analysis of unauthorized smoking

extensively in his deposition. See Exhibit “H.” Excerpts from Thornton Depo Pgs. 190-195. He

considered it and based upon his investigation of the physical evidence and the witness statements,

he determined that it was not probable.

7. The concept of a “hot bale” was not dealt with specifically in Mr. Thornton’s report.

Defendants previously makes much of the fact that other “possibilities” should have been known

because depositions were available to Mr. Thornton at the time of his report. The deposition in

which the “hot bale” was first mentioned was ten months after his report was issued. This is yet

another attempt by Defendants to throw mud at the wall and see what sticks. Based upon witness

testimony and physical evidence, Mr. Thornton determined that the origin of the fire was in/under

the fork lift. Clearly there was not a bale under the fork lift, nor was there a bale on the fork lift

which could have dropped cinders under the fork lift. Mr. Thornton’s report, likewise did not address



the specific possibility that the fire was caused by a flaming arrow shot by a rogue band of the

Coushatta tribe of Indians. That does not mean his methodology is flawed. The report was gleaned

from applying his knowledge, skill, experience, training and/or education to physical evidence and

witness testimony to determine possible source of ignition of the fire. Each possibility was analyzed

using the above resources within the structure of the scientific method to determine if any single

possibility rose to the level of probability. Mr. Thornton determined that one possibility was a

probability and has thus set forth his opinion in his report.

F. The ignition temperature of paper is a fact and not subject to methodology.

Defendants have attempted to mis-lead the court in its Memoranda by stating that “[n]otably,

his [Mr. Thornton’s] methodology in determining that [the ignition temperature of paper] was to do

a Google search” when in fact Mr. Thornton said “you can do Google searches.” See Exhibit “H.”

Excerpts from Thornton Depo Pg. 160, Line 10. Google is an internet search engine, an electronic

librarian as it were, which identifies internet data bases containing information within the parameters

of the terms entered. Section 18.6.4.1 of the 2011 version of NFPA 921 entitled “Scientific

Literature” states in pertinent part “Gateways to the scientific literature can include Internet data

bases, technical libraries, textbooks and handbooks.” See Exhibit “C.” Excerpts from NFPA 921,

Pg. 173 (Emphasis Ours).

When questioned if he had any information in his file to substantiate his opinion that the

ignition temperature of paper was 451 degrees (he never said it was 451 degrees), he replied

As I stated earlier, I testified to my file and my work experience and things that Ihave studied over some 40 years, 450 degrees Fahrenheit is the ignition point of anordinary combustible. And it is in that range. See Exhibit “H.” Excerpts fromThornton Depo Pg. 160, lines 15-22.



Defendants questioned Mr. Thornton about the ignition temperature of paper from page 158 of his

deposition to page 172 of his deposition and he consistently replied that it was in the range of 450

degrees Fahrenheit and further qualified his answer by stating that the condition/makeup of the paper

and other factors could affect the ignition temperature. See Exhibit “H.”, Excerpts from Thornton

Depo Pg 158-172.

While Defendants’ assertion is that Mr. Thornton’s “methodology” is flawed, what they are

really insinuating is that the scientific data upon which he is testing his hypothesis is incorrect.

Testing the hypothesis is part of the scientific method which they accuse Mr. Thornton of not

following. Interestingly, Defendants do not ever directly assert that the data is incorrect, nor do they

provide any conflicting data. Defendants will have plenty of opportunity to cross examine Mr.

Thornton at trial regarding his opinion and the basis of those opinions. Unsubstantiated attacks on

the scientific data used by Mr. Thornton, however should not be a basis for questioning his

methodology.

G. Mr. Thornton did address the basis for his opinion regarding the second fire inhis report and supports his conclusions with regard thereto.

Defendants are incorrect in their assertion that the two lines cited by them in their

Memoranda was Mr. Thornton’s only mention of the second fire in his report. In addition to the

actual opinion cited by Defendants, the majority of page 4 and the top portion of page 5 of Mr.

Thornton’s report address the second fire. See Exhibit “A.” Thornton Report Pgs 4-5. Mr. Thornton

addresses the state of the scene of the original fire, the fact that it was still smoldering, the

temperature, wind conditions, precipitation present on that day and most importantly witness

testimony.



H. Mr. Thornton did not engage in e ither Expectation Bias or Confirmation Bias.

1. Expectation Bias. While expectation bias is a danger in a fire investigation,

Mr. Thornton was not guilty of such a lapse as is evident from his report and from his deposition.

In the Chester Valley Coach Works v. Fisher Price, Inc. 2001 WL 1160012 (E.D.Pa. 2001) case cited

by Defendants, the investigator was found not to have conducted a site inspection, interview

witnesses or review the transcripts of two eyewitnesses to the fire. Further he testified that he was

retained to determine if Bigfoot #1 and #2 could have started the fire. The conduct of the

investigator in the Chester Valley Works case is nothing like the investigation conducted by Mr.

Thornton. Defendants specifically questioned Mr. Thornton regarding his site inspection, his

interview with Greg Charles, the depositions he reviewed and his coordination with other experts

retained by Plaintiffs, including Mr. Forest Smith and Mr. Robert Friedemann.

There are two portions of Mr. Thornton’s report which Defendants point to in support of their

contention of expectation bias. The first is a sentence contained in the “Property Description”

portion of the report in which Mr. Thornton states “The fire started in an area described as the “D”

Aisle, near the North to South main drive aisle.” Defendants failed to include the next sentence

which states “[t]his area is referenced as a general area of origin, which will be discussed in more

detail in subsequent paragraphs.” See Exhibit “A.” Thornton Report Pg 3. The report is dated

September 14, 2012. Mr. Thornton obviously had reached his opinion as of the date of the writing

of the report as is evidenced by the fact that later in the report, he specifically states his “conclusions

and/or opinions.” This is further supported by the fact that in the last paragraph under the

“Assignment” portion of his report (which was before the “property description” section), Mr.



Thornton states:

Based on observations of this loss and my training and experience, it was theconclusion that the cause of the above captioned loss should be considered and/orclassified as accidental, due to paper product coming in contact with the heat of theexhaust manifold of the Hyster 80. (See Exhibit “A.” Thornton Report Pg. 1).

Obviously the report is to be taken as a whole, and unless particular language was specifically

qualified or limited by date, time, or circumstances, the report indicates his findings as of the end

of his investigation.

The second portion of Mr. Thornton’s report, which Defendants contend demonstrates

expectation bias is more properly an argument for “confirmation bias” and is unfounded. Defendants

contend that Mr. Thornton’s report does not properly document the ignition temperature of ordinary

combustibles nor the heat of the manifold of the forklift. This Response Memorandum has already

dealt with the issue of the ignition temperature of paper and the fact that Mr. Thornton did not

specifically set forth such scientific data in his report does not make his report flawed. Defendants

clearly questioned him about it in his deposition and shall have the opportunity to do so again at trial.

With regard to the temperature of the manifold, Mr. Thornton’s report states:

During the site inspection(s) and subsequent examinations of items of evidence allof the potential source(s) of heat for ignition was considered and/or thoroughlyevaluated. This evaluation process was conducted with other investigativegroups/experts. (Emphasis Ours) See Exhibit “A.” Thornton Report Pg. 5.

The methodology utilized was further explained as follows:

The opinions and/or conclusions reached were based upon the entire process of thisexamination, my training and experience. The scope of the examination included butwas not limited to, scene examinations, the interviews of witnesses, review ofdepositions and discussions with experts from fields of expertise as needed has



led to the following conclusions and/or opinions. (Emphasis Ours) See Exhibit “A.”Thornton Report Pg. 10.

When questioned in his deposition about where in his report there was documentation on the heat

of the manifold, Mr. Thornton stated: “[t]he research that was done on that will be better explained

by Robert Friedemann.” He further states “I haven’t seen Robert Friedemann’s report in my file —

but I think I’ve seen it and he does have it documented.” See Exhibit “H.” Excerpts from Thornton

Depo Pg. 165, Lines 12-22. Clearly Mr. Thornton consulted with another expert to determine the

heat of the manifold which is the subject of another expert report. Mr. Thornton’s failure to include

in his report the specific scientific data he relied upon, does not make his report flawed by either

expectation or confirmation bias.

2. Confirmation Bias. Defendants misconstrue the concept of “confirmation

bias.” As stated in their Memoranda citing NFPA 921 “[c]onfirmation bias occurs when the

investigator instead tries to prove the hypothesis. This can result in failure to consider alternate

hypotheses.” See Deep South Memorandum Pg. 27. Deep South is attempting reverse the formula

and state because Mr. Thornton allegedly did not consider alternate hypotheses, he was trying to

prove his hypothesis. They have cited nothing in his deposition or his report which supports the

contention that Mr. Thornton was trying to prove his hypothesis.

The above notwithstanding, the argument put forth by Defendants is merely a combination

of all of the various assertions set forth in Section 2 of Deep South’s Memorandum re-urged under

a different name. As each assertion was individually controverted above, they should be given no

additional consideration when combined. Defendants repeatedly asserted that Mr. Thornton “failed

to consider” when in fact his report clearly indicates he did consider the various other potential



hypotheses and he either eliminated them or determined that they were not probable. This is not

consistent with confirmation bias.

I. The Court should allow Mr. Thornton to testify as a fire cause and origin expertand to the extent Defendants disagree with his testimony, it should be resolvedthrough the trial process.

It is evident in the structure of our legal system that courts recognize that reasonable minds

may differ and the legal process is designed to address that. To the extent that Defendants take a

position that is different from the conclusions drawn by Mr. Thornton, the trial is the proper forum

to raise their differences.

Once the thresholds of reliability and relevance are met, the testimony is admissible. Thereafter, any purported weakness in an expert’s methodology or conclusion goesto the degree of credibility to be accorded to the evidence, not to the question ofadmissibility. Royal Insurance Company of America v. Daniel, 208 F.Supp. 423 at426 (S.D.N.Y 2002) citing Ambrosini v. Labarraque, 101 F3d. 129, 133-35 (D.C.Cir. 1996).

If Defendants disagree with the testimony presented,

Vigorous cross examination, presentation of contrary evidence, and carefulinstruction on the burden of proof are the traditional and appropriate means ofattacking shaky but admissible evidence. Daubert supra at 596 citing Rock v.Arkansas, 483 U.S. 44 at 61, 107 S.Ct. 2704 (1987)

Further, “the fact that other causes go ‘uneliminated’ goes to the weight, not the admissibility, of the

expert testimony.” Royal Insurance, supra at 426 citing Allstate v. Hugh Cole, 137 F.Supp.2d 1283

at 1291 (M.D.Ala. 2001). This analysis should be interpreted in light of the Advisory Committee

Notes, 2000 to Fed.R.Evid. 702 which state “[a] review of the case law after Daubert shows that

rejection of expert testimony is the exception rather than the rule.”

III. Conclusion.



Mr. Thornton is an expert in the field of fire cause and origin by virtue of his knowledge,

skill, experience, training and education. He reviewed the relevant physical evidence and witness

testimony and applied the scientific method to arrive at his conclusions. The assertions raised against

Mr. Thornton by Defendants in their Motions address solely the issue of reliability. Plaintiff has

demonstrated that Mr. Thornton’s report is reliable using the guidelines set forth by Daubert and its

progeny.

Jurisprudence says that reliability is based on an investigation in which the scientific method

is utilized. Charles R. Watson, Chairman of the Technical Committee charged with promulgating

NFPA 921, reviewed Mr. Thornton’s report and deposition and stated that he had complied with the

scientific method and his investigation should be considered reliable from the standpoint of the

procedure followed. Each one of the contentions raised by Defendants questioning Mr. Thornton’s

methodology in its Memorandum were discussed and refuted. These contentions were refuted by

reference to the exhibits Defendants attached to their own Memoranda, except for the deposition of

Greg Charles, the first witness on the scene, which Defendants chose not to attach. Plaintiffs have

met their burden with regard to Mr. Thornton and Defendants’ Motions to Strike should be denied.



Respectfully submitted,

/s/ Robert H. Shemwell, Jr. Robert H. Shemwell, Jr. #22616WEEMS, SCHIMPF, GILSOUL, HAINES, LANDRY & SHEMWELL (APLC)912 Kings HighwayShreveport, Louisiana 71104-426Phone: (318) 222-2100Facsimile (318) 226-5100

John C. HartBruce H. RogersBROWN, DEAN, WISEMAN, PROCTOR, HART & HOWELL, L.L.P.200 Fort Worth Club Building306 W. 7th StreetFort Worth, Texas 76102-4905Tel. 817/332-1391Fax: 817/870-2427

ATTORNEYS FOR PLAINTIFF,INTERNATIONAL PAPER COMPANY



CERTIFICATE OF SERVICE

I hereby certify that a copy of the above and foregoing Memorandum in Response to

Deep South Equipment Company’s Motion to Strike/Daubert Challenge of Plaintiff’s Expert,

Johnny Thornton has been served on the following counsel of record via the Court’s electronic

filing system on the __th day of March, 2014.

Gregory D. Maricle, Esq. William M. Bass, Esq.Brian T. Butler, Esq. Kristen N. Broussard, Esq.Sean M. Casey, Esq. Voorhies & Labbe (LAF)Maricle & Associates P.O. Box 3527III United Plaza, Suite 350 Lafayette, LA 70502Baton Rouge, LA 70809

James A. Mijalis, Esq. Francis J. Grey, Jr. Esq.Lunn, Irion, Salley, Carlisle Sean Corigan, Esq.& Gardner Lavin, Oneil, Ricci, CedroneP.O. Box 1534 & DiSipioShreveport, LA 71165-1534 190 N. Independence

Mall West, Ste 500Philadelphia, PA 19106

/s/ Robert H. Shemwell, Jr. Of Counsel



In The Matter Of:

INTERNATIONAL PAPER COMPANY, et al.

v.

DEEP SOUTH EQUIPMENT COMPANY, et al.

___________________________________________________

JOHNNY THORNTON ‐ Vol. 1November 14, 2012

___________________________________________________


JOHNNY THORNTON - 11/14/2012

800-966-4567 www.merrillcorp.com/lawMerrill Corporation - Dallas

1 (Pages 1 to 4)

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UNITED STATES DISTRICT COURT WESTERN DISTRICT OF LOUISIANA SHREVEPORT DIVISION INTERNATIONAL PAPER ) COMPANY and FACTORY ) MUTUAL INSURANCE COMPANY, ) Plaintiffs, ) ) CIVIL ACTION NO. VERSUS ) 5:11-CV-00017 ) DEEP SOUTH EQUIPMENT ) COMPANY, ET AL, ) Defendants. )

****************************************************** ORAL AND VIDEOTAPED DEPOSITION OF JOHNNY THORNTON VOLUME 1 OF 2 NOVEMBER 14, 2012 ****************************************************** ORAL AND VIDEOTAPED DEPOSITION OF JOHNNY THORNTON, produced as a witness at the instance of the Defendant Deep South Equipment Company, Inc., and duly sworn, was taken in the above-styled and numbered cause on the 14th day of November, 2012, from 9:09 a.m. to 4:47 p.m., before Julie C. Brandt, RMR, CRR, and CSR in and for the State of Texas, reported by machine shorthand, at the offices of Brown Dean, 306 W. 7th Street, Suite 200, Fort Worth, Texas, pursuant to the Federal Rules of Civil Procedure and the provisions stated on the record or attached hereto.

Page 21 A P P E A R A N C E S2

FOR THE PLAINTIFFS:3

Bruce H. Rogers4 BROWN DEAN

306 W. 7th Street, Suite 2005 Fort Worth, Texas 76102

817.820.11206 [email protected]

FOR THE DEFENDANT DEEP SOUTH EQUIPMENT COMPANY, INC.:8

G. Dwayne Maricle9 MARICLE & ASSOCIATES

#1 Sanctuary Boulevard, Suite 20210 Mandeville, Louisiana 70471

985.727.341111 [email protected] Brian T. Butler

MARICLE & ASSOCIATES13 8545 United Plaza Boulevard

III United Plaza - Suite 35014 Baton Rouge, Louisiana 70809


FOR NACCO MATERIAL HANDLING GROUP:17

Francis J. Grey, Jr.18 LAVIN, O'NEIL, RICCI, CEDRONE & DISIPIO

190 N. Independence Mall W.19 Suite 500

Philadelphia, Pennsylvania 1910620 215.351.7540

[email protected]

William M. Bass22 VOORHIES & LABBÉ

700 St. John Street, 4th Floor23 Post Office Box 3527

Lafayette, Louisiana 70502-352724 337.232.9700

[email protected]

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1 FOR OSRAM SYLVANIA, INC.:2 McDonald G. Provosty (via telephone)

IRWIN FRITCHIE URQUHART & MOORE, LLC3 400 Poydras Street

Suite 27004 New Orleans, Louisiana 70130


FOR VALLEY ELECTRIC MEMBERSHIP CORPORATION:7

Brian Smith (via telephone)8 UNGARINO & ECKERT, LLC

910 Pierremont Road, Suite 3519 Shreveport, Louisiana 71106


ALSO PRESENT:12

Phil Crombie13 Eric M. Benstock14

VIDEOGRAPHER:15

Sandra Bentley, CLVS16171819202122232425

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1 INDEX PAGE

2 Appearances.................................... 2

3 Proceedings.................................... 5 Stipulations................................... 6

4 JOHNNY THORNTON - VOLUME 1

5 Examination by MR. MARICLE................ 76 Signature and Changes.......................... 208

Reporter's Certificate......................... 21078 DEPOSITION EXHIBITS IDENTIFIED9 Exhibit 1 Amended Notice of Deposition.... 7

10 Exhibit 2 Subpoena........................ 711 Exhibit 3 Subpoena with service

information..................... 712

Exhibit 4 Expert Report #1 Johnny Thornton13 IP 507183 - 507226.............. 814 Exhibit 5 Documents from work file folder

IP 510094 - 510190.............. 915

Exhibit 6 Photographs IP 507227 through16 508747.......................... 1017 Exhibit 7 Log book notes - handwritten.... 2318 Exhibit 8 CAD drawing with notes.......... 6619 Exhibit 9 Drawing of lift truck and the

Hubcap within the D aisle....... 8220

Exhibit 10 Photograph IP 507751............ 9021

Exhibit 11 Photograph...................... 9022



Exhibit 14 Photograph NACCO 022458......... 10125




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1 P R O C E E D I N G S2 THE VIDEOGRAPHER: Good morning, this is3 November 14, 2012. The time now is 9:09 a.m. This is4 videotape number 1 of the deposition of Johnny Thornton5 in the matter of International Paper Company, et al.6 versus Deep South Equipment Company, et al., United7 States District Court, Western District of Louisiana,8 Shreveport Division, Case No. 5:11-CV-00017. This9 deposition is located at Brown Herman, 306 West 7th

10 Street, Suite 200, Fort Worth, Texas. My name is Sandra11 Bentley with Merrill Legal Solutions.12 Would the video record please swear in --13 would the court reporter please swear in the witness.14 (Witness sworn.)15 MR. MARICLE: Mr. Thornton, before we16 begin, my name is Dwayne Maricle, and I represent Deep17 South Equipment Company, Inc. We're going to go around18 the table and just let other counsel make their19 appearances.20 MR. BUTLER: Brian Butler on behalf of21 Deep South Equipment Company, Inc.22 MR. GREY: Francis Grey on behalf of23 NACCO Material Handling Group.24 MR. BASS: Bill Bass on behalf of NACCO25 Materials Handling Group.

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1 MR. ROGERS: Bruce Rogers representing2 International Paper and Factory Mutual Insurance3 Company.4 MR. MARICLE: Brian or McDonald?5 MR. PROVOSTY: This is McDonald Provosty.6 I represent Sylvania. And I just want to state for the7 record that last week my client objected to8 cross-noticing any expert discovery with the two state9 court suits that are currently pending. However, if

10 everyone will agree that the cross-noticing of expert11 discovery in the federal suit will not affect any of the12 obligations in the state court cases, especially with13 regard to disclosures and deadlines, we will remove our14 objections.15 MR. ROGERS: Plaintiff has no problem16 with that.17 MR. MARICLE: I have no objection. Fran18 or Bill?19 MR. SMITH: This is Brian Smith. I have20 no -- McDonald, I have no problem with that.21 I represent Valley Electric Membership22 Corporation, which is a defendant in the state court23 action.24 MR. GREY: This is Fran Grey. I have no25 objection at all.

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1 JOHNNY THORNTON,2 having been first duly sworn, testified as follows:3 EXAMINATION4 BY MR. MARICLE:5 Q. All right. Mr. Thornton, we're going to go6 ahead and begin. And before we do, we'll take care of a7 little bit of housekeeping.8 (Exhibit 1 marked.)9 Q. (BY MR. MARICLE) So I have identified as

10 Thornton 1 -- it's just the notice of deposition and11 amended notice of deposition making this a video12 deposition. And I attach that to the deposition.13 (Exhibit 2 marked.)14 Q. (BY MR. MARICLE) Also, I've identified as15 Thornton Exhibit 2, which is just the subpoena duces16 tecum that was provided in this case for the file of17 Johnny Thornton. And I attach that to the deposition.18 (Exhibit 3 marked.)19 Q. (BY MR. MARICLE) I also identify and attach20 as Thornton 3, it is the service information on that21 subpoena duces tecum. And then --22 MR. MARICLE: Any objection to any of23 those?24 MR. ROGERS: No.25 Q. (BY MR. MARICLE) Okay. And then,

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1 Mr. Thornton, we have, I would say, a mound of paper in2 front of us today. And at some point I want you to look3 through this and identify this as your file because4 that's how it's been provided to us. Okay?5 A. I will.6 Q. All right. Do you know if this is, in fact,7 your file?8 A. I haven't looked at it.9 Q. Okay.

10 A. I don't know.11 (Exhibit 4 marked.)12 Q. (BY MR. MARICLE) Okay. I'm going to go ahead13 and identify and attach as Thornton Exhibit 4 a Bates14 range of IP 507183 through IP 507226, and this is15 labeled expert report of Johnny Thornton. If you could16 just quickly look at those documents and tell me if that17 constitutes the report that was provided in this18 litigation.19 A. If I can identify it in parts, it will help20 me. Okay.21 Q. Okay.22 A. The first 14 pages, as you referred to my23 narrative -- well, you didn't. I'll refer to it as the24 narrative portion of my report. After that is my25 resumé, and then Federal Rule 26 compliance showing the




3 (Pages 9 to 12)

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1 most updated list of appearances, court or deposition2 type appearances. And the last page is my agreement of3 fee schedules.4 As far as the question does it constitute my5 report, my report encompasses this and any photographs6 that might be in that file that I'll presume right now7 that is before you in that mound of paper.8 Q. Okay. We'll come back to that question during9 the deposition because I don't see anywhere where you

10 reference other photos other than what you've included11 within your report. Okay?12 A. I'll accept your statement, yes.13 Q. Okay. Another document that I want to show14 you, again, it's -- I've marked it as Thornton Exhibit 515 with a Bates range of IP 510094 through IP 510190. And16 if you could just look through those and tell me if that17 also reflects information from your file.18 (Exhibit 5 marked.)19 A. In reference to this Exhibit 5, this has20 been -- it looks like it's been copied from my work file21 folder and produced to you.22 Q. (BY MR. MARICLE) Okay. Is there anything23 that's missing from that, or does it all appear to be24 there?25 A. I would presume it's all there.

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1 Q. Okay.2 A. I have my file folder here if we want to3 confirm or verify any part of it --4 Q. Okay.5 A. -- but I would assume that it's correct.6 Q. Okay.7 A. I mean complete. Excuse me.8 Q. At any point during the deposition if you feel9 you need to refer to your file to double check the

10 accuracy of the information or the inclusion of all11 this, certainly please do so. Okay?12 A. Thank you very much.13 MR. GREY: Dwayne, I'm sorry. Can I see14 Exhibit 5?15 MR. MARICLE: Sure.16 (Exhibit 6 marked.)17 Q. (BY MR. MARICLE) The next exhibit I've marked18 and attached is Exhibit Thornton 6, which has a Bates19 range of IP 507227 through 508747. And, Mr. Thornton, I20 kind of pass these to you a little bit. But these are21 all photographs, and are these photographs that are part22 of your file?23 A. In reference to your question -- and I believe24 you narrowed it down to photographs. If you did, that's25 not completely accurate. I found things in there that

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1 are also part of my work file and used in production in2 my report, just like my notes. And in particular,3 there's an artifacts list that was not referred to, and4 it's contained in here.5 Q. Okay.6 A. So we have a complete listing of artifacts and7 I call them sometimes scribe notes when we go to like an8 inspection. I just make notes about what happened to9 the evidence and how it got, perhaps, subbagged and

10 changed up somewhat. So those will be found in here.11 Q. Okay.12 A. And they're part also in my report.13 Q. Okay. The evidence sheets, those will have14 your Magnifacts header or logo on there?15 A. That's probably right, yes.16 Q. Okay. Having looked through what's been17 produced as your file, I did not see any depositions in18 there. Are there any depositions in your file?19 A. No, sir.20 Q. Okay. And why do you not have any depositions21 in your file?22 A. I never maintain copies or retain copies of23 depositions. I don't have any.24 Q. Okay. Can you tell me what depositions you25 reviewed?

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1 A. Reviewed, none.2 Q. You haven't reviewed any depositions?3 A. Oh, excuse me. I -- I misunderstood your4 question. I apologize.5 Review of depositions, I can give you a list6 of them. I didn't -- I don't know that I verbalized7 that in here.8 Q. Let me just give you one instruction that I9 failed to give you.

10 A. Please.11 Q. And I apologize.12 A. No, that's my fault.13 Q. If you don't understand my question, make sure14 you let me know that and I'll rephrase that question.15 A. I appreciate it.16 Q. So just so the record's clear, your file does17 not contain depositions, but it's your testimony that18 you have, in fact, reviewed depositions?19 A. Yes, I have reviewed depositions.20 Q. Okay. What depositions?21 A. That would be -- excuse me. I'll have to dig22 those out.23 Q. Please do.24 THE WITNESS: Do you have a list of25 those, Bruce?




4 (Pages 13 to 16)

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1 MR. ROGERS: Not with me, no.2 THE WITNESS: We need to take a little3 break where I can get my computer going, because they're4 on the computer. I don't have any files of them.5 MR. MARICLE: Okay.6 MR. ROGERS: Shall we go off for a minute7 while he gets his computer running?8 Q. (BY MR. MARICLE) Well, let me ask you this9 before we do. In your paper file, which I think is

10 identified --11 MR. MARICLE: Fran, do you have 5?12 MR. ROGERS: This is 510094. This is13 Exhibit 5.14 MR. MARICLE: Okay.15 Q. (BY MR. MARICLE) In Exhibit 5, I saw some16 notes from reviewing what appears to be a deposition of17 Anthony Baker. Is that what you're looking for?18 A. That might be complete. Anthony Baker was one19 of the depositions. And I don't want to try to quote20 them from memory to you, because I surely would miss21 one, but Anthony Baker was a firefighter deposition that22 I did review.23 Q. Okay. Whenever you review a deposition, what24 is your practice of noting any information from that25 deposition?

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1 A. It's according to where I am. If I'm in a2 position where I can type, I have deposition notes that3 I make notations or yellow pad, just different places.4 Q. Okay. In reviewing Exhibit 5, there are only5 two depositions that appear to be outlined, as I would6 describe them. Those are being Anthony Baker and Ellis7 Blount. Are there -- without going to your computer, do8 you know if there are other depositions other than9 Anthony Baker and Ellis Blount that you reviewed?

10 A. Yes.11 Q. Okay. All right. Well, let's -- let's take a12 break, go off the record, and get that information from13 your computer.14 THE VIDEOGRAPHER: We are going off the15 record. The time is 9:22.16 (Break from 9:22 a.m. to 9:24 a.m.)17 THE VIDEOGRAPHER: We are on the record.18 The time is 9:24.19 Q. (BY MR. MARICLE) All right. So for the20 record, can you identify what you've gone to your21 computer to look at?22 A. Yes. In my file I have a file folder that I23 listed as depo as I received them through e-mail from24 Bruce Rogers' office. I downloaded them into this file25 folder.

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1 Q. Okay. And so what depositions did you receive2 from Mr. Rogers that were downloaded into your3 electronic file?4 A. The first file folder says Deep South, and5 it's not a deposition, in direct answer to your6 deposition. There's Deep South 1 through 20. And then7 Krueger or "Krueger," K-R-U-E-G-E-R, Welch, Davidson,8 Sando, S-A-N-D-O, Anderson, Ellis Blount, B-L-O-U-N-T,9 Bowers, John Briar, Gregory Charles, Jeff Gates, Lindsey

10 Hernandez, Jeffrey Jones, Rick Lawson, and Cleo Wilson.11 Q. When the subpoena duces tecum, which has12 been identified as Exhibit 2, was served upon you, how13 come -- how come we did not receive your electronic14 file?15 A. I guess I overlooked it or it was just not16 did, sir.17 Q. Is there any other information, other than18 that electronic file, which included the depositions you19 reviewed, that's on your computer that was not provided20 to us?21 A. A possibility, yes.22 Q. Okay.23 A. Good possibility, yes.24 Q. Let's look through it and let's get it out on25 the table.

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1 A. Okay. And since the time of the subpoena, I2 was -- I've continued to prepare for the deposition. I3 have a file folder in my master file called 1003 depo4 notes. You had asked me earlier a question about my5 notes or depositions.6 Q. Okay.7 A. And this is where those would be.8 Q. Okay. And so when were those deposition notes9 created by you?

10 A. They've been created, evolved or whatever --11 Q. Okay.12 A. -- over a period of time since I received the13 depositions.14 Q. Okay. And again, that was something that was15 asked for that was not provided. Correct?16 A. That's a possibility, that I overlooked it,17 yes, sir.18 Q. Okay.19 MR. MARICLE: Bruce, I'm going to call20 for his electronic file to be produced today while we're21 here so we can look at that.22 MR. ROGERS: Sure.23 MR. MARICLE: I don't know if he can24 e-mail a lot of this stuff to you, but I think we need25 it printed. We need to look at that. We haven't been




5 (Pages 17 to 20)

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1 provided that. It's hard to question somebody on2 something when you don't have that information.3 MR. ROGERS: Sure. Could you put a copy4 of that onto that thumb drive?5 THE WITNESS: I think that will work.6 MR. MARICLE: Okay.7 MR. ROGERS: You don't need the actual8 depositions. You just -- you've got the list of them.9 MR. MARICLE: No, but I'd rather have the

10 electronic file to make sure we have everything, but I11 don't need you to print out the depositions.12 MR. ROGERS: Okay. But you would like13 the notes.14 MR. MARICLE: I would like at least a15 screenshot of what that electronic file looks like.16 MR. ROGERS: So if you can copy those17 folders onto that thumb drive.18 THE WITNESS: Clarification. Those19 folders --20 MR. ROGERS: Okay. Let's go through21 what's on there that wasn't produced.22 THE WITNESS: As far as I know, let me23 then copy the depo and depo notes. I have deposition24 preparation notes where I've been working after this.25 So that wouldn't apply, but --

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1 MR. MARICLE: Okay.2 THE WITNESS: -- I have it in here.3 MR. MARICLE: All right. Let's get that.4 MR. ROGERS: Uh-huh. Anything else?5 THE WITNESS: AUTOCAD drawings are on6 there.7 MR. ROGERS: We've produced the drawings,8 though.9 THE WITNESS: Yeah.

10 MR. BUTLER: Yeah, that was part of it.11 THE WITNESS: Let me just copy these12 then, and I think I'll get there.13 Q. (BY MR. MARICLE) Is there anything else in14 there?15 A. I'm scanning through, sir --16 Q. Okay.17 A. -- and making sure.18 MR. ROGERS: While he's looking at that,19 do you want -- which ones do you want printed out in20 hard copy?21 MR. MARICLE: Both the notes, the depo22 notes, the --23 MR. ROGERS: The deposition preparation24 notes?25 MR. MARICLE: Preparation notes.

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1 MR. ROGERS: Okay.2 Q. (BY MR. MARICLE) On the depositions that you3 have stored electronically, did you make any kind of4 electronic notes or handwritten notes on those5 depositions?6 A. Not on the depositions. That's why I pulled7 it out. And the depo notes, I just copy it and put it8 into the depo notes --9 Q. Okay.

10 A. -- for easier access for myself in my review.11 Q. Okay. Anything else on your computer?12 A. I think I've got it all, and we've discussed13 it.14 Q. Okay. We haven't discussed the content yet,15 but --16 A. I understand.17 Q. Okay. So if you'll put that to your flash18 drive, we'll give that to Mr. Rogers, and at some break19 today we'll get copies of that.20 Okay. On the depositions that you've listed,21 did you review every one of those depositions?22 A. Yes.23 Q. Okay. Would you bill for that time?24 A. I haven't yet.25 Q. Okay. Would you have any record to show how

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1 much time you've spent reviewing each deposition?2 A. Not each deposition. I have a daily, but as3 far as showing each deposition broke down.4 Q. Okay.5 A. One deposition may take a short time. And6 again, my file is here. My billable hours that have not7 been billed. Otherwise Bruce has produced those. But8 those since the last billing statement are in my note9 pad -- I mean, my notebook over here.

10 Q. Do you know how many invoices you've submitted11 to Mr. Rogers or IP or FM on this case?12 A. No, I do not.13 Q. Okay. In the file that's been produced here14 today, there are two invoices. Are there more than two15 invoices?16 A. I'm going to get this here first and then I'll17 look at that. Yes, there are more than two.18 Q. Okay.19 MR. ROGERS: Before we move on, can he20 just finish with the operation with copying those files?21 MR. MARICLE: Well, I think we need the22 invoices.23 MR. ROGERS: Okay.24 MR. MARICLE: He mentioned there's a25 daily log sheet that he's keeping track of your time.




6 (Pages 21 to 24)

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1 Q. (BY MR. MARICLE) Where is that stored? That2 is a piece of paper?3 A. Yes.4 Q. Okay. So --5 A. It's in my notebook here.6 Q. Okay. Did we receive any of your notebook as7 part of your subpoenaed file?8 A. The notebook has reference to the billing, and9 I don't know if that's been produced or not, sir.

10 Q. Okay.11 A. But it's here if you want it.12 Q. Okay. We do want to look through that.13 A. Yeah. That will be fine.14 MR. ROGERS: Do you want me to get a copy15 for you? Or if you want to look at it first and see if16 you want a copy.17 THE WITNESS: My understanding is I'm18 printing -- excuse me -- making a copy of the invoices19 on the same flash drive.20 Q. (BY MR. MARICLE) So backing up to my question21 about did you review each deposition, you said you would22 have. Correct?23 A. I did.24 Q. Okay. And so there would be some note in this25 book or log sheet here that's going to indicate you

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1 reviewed the deposition of Krueger or Welch and the time2 spent?3 A. It may very well not be. It may be reviewed4 depositions as sent --5 Q. Okay.6 A. -- and not broke out as such.7 Q. Were all of these depositions reviewed before8 your report was authored?9 A. I'll have to check on that, sir.

10 Q. Okay. Where will you be checking on that?11 A. Let me check -- let me finish this before I12 lose my place.13 MR. MARICLE: Okay. Bruce, there aren't14 that many pages, so if we can just get a copy.15 MR. ROGERS: If you'll let me go off for16 a minute, I'll get a copy of this. Johnny will finish17 his operation here.18 A. Are you saying one page?19 Q. (BY MR. MARICLE) What's that?20 A. Are you saying a page?21 Q. No. There aren't that many pages.22 A. Okay. I wanted to make sure there's --23 MR. ROGERS: Is this all just our file?24 THE WITNESS: No.25 MR. ROGERS: Which ones relate to this

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1 case?2 MR. MARICLE: Okay. All right. Well,3 let's go off the record so we can get copies of this, as4 well as the electronic file.5 THE VIDEOGRAPHER: We are going off the6 record. The time is 9:34.7 (Break from 9:34 a.m. to 9:46 a.m.)8 THE VIDEOGRAPHER: We are on the record.9 The time is 9:46.

10 Q. (BY MR. MARICLE) Mr. Thornton, we've taken a11 break, and we've received two pages from your log book,12 I'll call it. I've identified this as Thornton13 Exhibit 7. And we'll have you look at that. And are14 those the two -- are those the only two pages from your15 book that reference the Deep South litigation or the IP16 or Factory Mutual litigation, however you refer to it?17 A. That's correct.18 (Exhibit 7 marked.)19 Q. (BY MR. MARICLE) Okay. So before we had20 taken a break, you indicated that whenever you would21 review a deposition, you would make notes in your log22 book. And that's what we have identified as Exhibit 7.23 But do you want to look through Exhibit 7 and tell me if24 you see anywhere where you've reviewed a deposition and25 indicated that or indicated the amount of time billed

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1 for reviewing depositions or even notes of those2 depositions.3 A. There's no notation in there, sir.4 Q. Okay.5 A. Except in -- well, I can clarify that. I'm6 looking at 11/5, review file folder and sent to Bruce7 Rogers. The file folder, the whole thing, is8 electronic, okay, except for those notes that are9 deposition -- your exhibit there. So when I review the

10 file folder, that could be depositions, but referring to11 depositions, no --12 Q. Okay.13 A. -- is the answer.14 Q. But just so the record is clear, earlier it15 was your testimony that if you reviewed a deposition,16 you would make a note in Exhibit 7 because obviously you17 want to capture your time. Right?18 A. That's correct.19 Q. Okay. And I'm just saying, looking at20 Exhibit 7, I can't tell where you looked at a21 deposition.22 A. I agree with you.23 Q. Okay. Do you have any recorded statements24 that you took during your investigations of this fire?25 A. I did not take a recorded statement, sir.




7 (Pages 25 to 28)

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1 Q. Okay. If you made notes from interviewing a2 witness, where would those notes have been made?3 A. In the handwritten note -- all right. Excuse4 me.5 Q. Okay.6 A. Exhibit 5.7 Q. Okay.8 A. All my handwritten notes from there.9 Q. Okay. You're referring to Exhibit 5. But can

10 you point to anywhere in Exhibit 5 where you actually11 sat down and interviewed somebody and can point to12 handwritten notes?13 A. On Exhibit 5 --14 Q. Yeah. There's a Bates number if you want to15 give it down in the bottom.16 A. Yes, I will. IP last two digits 98. It was17 an interview with Joseph Brasco, Jr. on 1/29/10. The18 next IP number 99 in that exhibit dated 1/29/10 is a19 portion of my handwritten notes that would be a diagram20 type notations as I was talking to the individual21 Brasco. The same thing on IP last three digits 100 of22 Exhibit 5, it is a continuation of that interview.23 Q. Mr. Thornton, let's go off the record because24 we're just eating up deposition time.25 THE VIDEOGRAPHER: We are going off the

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1 record. The time is 9:50.2 (Break from 9:50 a.m. to 9:57 a.m.)3 THE VIDEOGRAPHER: We are on the record.4 The time is 9:57.5 Q. (BY MR. MARICLE) Okay. Mr. Thornton, we've6 gone off the record and you have reviewed Thornton7 Exhibit 5. And you've tabbed two sections, two8 additional sections where you've also indicated you9 interviewed people. And on Bates number IP 510139, you

10 interviewed apparently Omar Bernstein.11 A. That's not correct. That's Gregory Charles.12 Over here.13 Q. Okay. So you interviewed Gregory Charles?14 A. Correct.15 Q. And then you -- on a second time flagged IP16 510175, which is additional Greg Charles interview17 notes. Is that right?18 A. And in addition 175 continues on, yes.19 Q. Okay. Right. But it's still only Greg20 Charles?21 A. That's correct, sir.22 Q. Okay. So the only two people you interviewed23 were Greg Charles and Joseph Brasco. Correct?24 A. That's correct.25 Q. Okay. Joseph Brasco -- strike that.

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1 As part of your fire investigation process,2 why would you talk to Joseph Brasco, who was not even3 working on the evening of the fire?4 A. There were two fires out there.5 Q. Okay. So you talked to him on the second6 fire?7 A. That's correct.8 Q. Okay. Is it your testimony there were only9 two fires at Murphy Bonded Warehouse?

10 A. That's not what I said.11 Q. Okay.12 A. I said -- I said it wrong.13 Q. Okay.14 A. There were two fires at least that I'm talking15 about here.16 Q. Okay. How come you didn't interview other17 employees working that night?18 A. When I went to the scene to do the interviews,19 employees were in what I call the office area, a20 secretarial clerical office. Gregory Charles was the21 only one that would submit to an interview. Others22 declined to be interviewed.23 Q. Okay. I noticed in looking through your file24 material that you do not have an expert report from25 Forest Smith. Is that correct?

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1 A. I believe that that would be part of the2 electronic transmittal that I had furnished back --3 well, furnished from Bruce, and I did see it.4 Q. But the problem is, Mr. Thornton, we've asked5 you earlier -- you looked at your computer -- what is on6 that electronic file. You listed stuff, but you didn't7 list expert reports. And now you're telling me there8 are also expert reports out there that you've looked at?9 A. Those would have been furnished to --

10 Q. I'm just trying to look -- understand what you11 looked at. And that's why you opened up your computer12 and you told us. And you looked through there, and you13 listed all the depositions and your depo notes, which14 was your field notes, and your invoices. My question to15 you: Are there other documents on your computer that16 have other information about this file that you've not17 told us about?18 A. There may be things that I haven't told you19 about that's been furnished through electronic, though.20 Q. What other expert reports have you looked at?21 A. I think the only ones that I've seen is Forest22 Smith and Mowrer, Fred Mowrer.23 MR. ROGERS: Bob Friedemann.24 THE WITNESS: And I might have seen25 Bob's, yes. That's true.




8 (Pages 29 to 32)

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1 MR. GREY: I missed that. Bob who?2 THE WITNESS: Bob Friedemann.3 MR. GREY: Thank you.4 MR. ROGERS: Can I talk to the witness5 for just a second? I think he's misremembering names.6 MR. MARICLE: Do you want to go off the7 record?8 MR. ROGERS: Yeah, let's go off the9 record.

10 MR. MARICLE: Okay. All right.11 THE VIDEOGRAPHER: We are going off the12 record. The time is 10:01.13 (Break from 10:01 a.m. to 10:13 a.m.)14 THE VIDEOGRAPHER: We are on the record.15 The time is 10:13.16 Q. (BY MR. MARICLE) Mr. Thornton, while we were17 off the record, you've given Mr. Rogers a thumb drive18 with some additional electronic information we're going19 to get, but I wanted to ask you -- it sounds like you20 did receive reports from Forest Smith and something from21 Mowrer and perhaps even Bob Friedemann, but that22 happened on November 8th?23 A. November the 8th is when I reviewed them. So24 I probably would have reviewed -- received them the 7th25 or the 8th of November.

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1 Q. Okay. But that would be after your report2 date of September 14, 2012?3 A. That is correct, sir.4 Q. Okay. We're going to just jump forward, and5 we're --6 A. Sure.7 Q. -- going to come back once we get to some8 additional --9 MR. ROGERS: Did you just say September

10 14th?11 MR. MARICLE: That's what the report is12 dated.13 MR. ROGERS: Because I think it came out14 in the middle of October.15 MR. MARICLE: It was produced, but it's16 dated September 14th.17 THE WITNESS: And --18 MR. ROGERS: Okay. That's fine.19 THE WITNESS: I can explain that --20 MR. ROGERS: That's fine.21 THE WITNESS: -- if you want.22 Q. (BY MR. MARICLE) Just trying to close out the23 file, if you would have obtained a fire department24 report or a state fire marshal report, would that be in25 your file?

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1 A. A copy of it may be in there. I'm not sure,2 or in the electronic, which has been produced to Bruce3 and I think produced to you all.4 Q. Okay. And did you determine when you received5 the depositions?6 A. The depositions? No, I did not do that.7 Q. Okay.8 A. That wasn't what we was trying to do just a9 while ago on the reports from experts.

10 Q. Okay. But we still have looked at Exhibit 7,11 and we don't see where you've reviewed any of those12 depositions.13 A. No notations.14 Q. Okay. Everything that we have in front of us15 today, and that's this mass of documents starting with16 Exhibit 4 through 7 but doesn't include the depositions,17 is that what constituted your consideration for whatever18 opinion you ultimately have in this case?19 A. Well, that question -- would you rephrase it20 for me, please?21 Q. Okay. I just want to make sure that we have22 all the documents and what you would have considered23 before you inked your report on September 14th.24 A. Okay.25 Q. Okay?

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1 A. And in reference to that question, that's all2 that I have, yes.3 Q. Okay. If you could, look back at Exhibit 5,4 and if you can flip to Bates number IP 510126.5 A. I'm there, sir. Excuse me. I'm down there,6 sir.7 Q. Okay. And for the record, is this an invoice8 from Magnifacts?9 A. That is.

10 Q. Okay. And is this the company you were11 working under at that time?12 A. That's correct, sir.13 Q. Okay. And was this an invoice that was14 submitted and paid by your client?15 A. That's correct, sir.16 Q. Okay. And does this document we're looking at17 accurately reflect the work you would have performed for18 this investigation, at least on the dates of February19 17, 18 and 19, 2010?20 A. That is correct, sir.21 Q. Okay. I see you bill on February 1722 235 miles, and I did a little Googling from your town to23 Mansfield and it's about 235 miles. Is that accurate?24 A. That's probably where I got the information.25 Q. Okay. And I see on the 17th, you had a motel




9 (Pages 33 to 36)

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1 that you stayed at in Natchitoches for two rooms.2 Correct?3 A. I did.4 Q. Okay. On the 18th, I see you also have a5 motel for two rooms in Natchitoches. Correct?6 A. There is.7 Q. Okay. But yet you billed 235 miles for that8 day. Why was that done?9 A. There's a trip back to Houston that might be

10 out of place there, or one of my crew members might have11 went back.12 Q. Okay. When you say crew, who was part of your13 crew?14 A. My son Greg was up there, and it looks like --15 that's an inaccurate statement. I may have overbilled16 for one trip there --17 Q. Okay.18 A. -- because Greg was there the next day.19 Q. Okay.20 A. My son wasn't working on the file.21 Q. To me it looks like you overbilled them for22 235 miles?23 A. That's a good assumption --24 Q. Okay.25 A. -- as I review it right now.

Page 34

1 Q. So previous to that I had asked you whether or2 not this accurately reflects the work that you had3 performed and you said yes, but now you're saying it's4 not accurate because you overbilled the client?5 A. Upon review, yes.6 Q. Okay. Prior to preparing your report, which7 is, again, identified as Thornton 4, did you review any8 portion of NFPA 921?9 A. I don't recall doing that at all, sir, no.

10 Q. Are you familiar with NFPA 921?11 A. I am, sir.12 Q. Okay. Did you utilize it as part of your13 investigation in preparation of your report?14 A. I utilized my training, experience and reviews15 that I've done over the years of all literature that16 I've reviewed.17 Q. Okay. But did you utilize 921 as well?18 A. My knowledge of it, yes.19 Q. Okay. What's your knowledge of 921?20 A. That's a very broad question. Do you want21 to --22 Q. Well, you said you utilized your knowledge,23 and I'm just asking what's your knowledge?24 A. 921 is a guideline produced by the National25 Fire Protection Association, and it has updates and it's

Page 35

1 a peer-reviewed type publication. Over the years I've2 studied it. I find that my methodology meets all the3 guidelines. And it is a guideline, but my knowledge of4 it is a working knowledge. From my past experience from5 the time that 921 was first created we were already6 using the same methodology. This methodology was7 developed by peers of people like myself that have been8 in the business for years. So my knowledge of it is a9 working knowledge.

10 Q. Okay. When was 921 created?11 A. I was trying to think of that. I would be12 guessing, and we could look it up and be more accurate.13 Q. Well, I know, but do you know?14 A. No, I don't know.15 Q. Okay. What edition of 921 did you utilize to16 investigate this fire?17 A. As I said, I utilized my knowledge of it. The18 one that would be applicable may be a better question,19 sir.20 Q. Answer my question first, and then you can21 answer yours.22 A. I utilized my knowledge of 921 from the23 creation date with all the peer review changes that have24 occurred. The 2008 volume or -- excuse me --25 publication was in effect.

Page 36

1 Q. Edition, how is that?2 A. That would be fine.3 Q. So the 2008 edition was in effect when?4 A. From 2008 until -- I think 2012 was the next5 edition.6 Q. Okay. Do you have a copy of the 2008 NFPA7 921?8 A. Yes, sir.9 Q. Okay. Do you have it with you today?

10 A. Yes, sir.11 Q. Okay. Do you have a copy of the 2011 edition?12 A. No.13 Q. Okay. Do you own a copy of the 2011 edition?14 A. No, sir.15 Q. Okay. Do you feel that your investigation16 needs to comply with a 2011 edition?17 A. The guideline that was in, quote, force was18 2008. You couldn't have used 2008 in 2010 if 2011 is19 accurate, as you say -- you couldn't use that one for20 that investigation. I don't feel that my investigation21 fails in any manner to meet the guidelines of NFPA.22 Q. Okay. Well, let's talk about your background,23 and then we're going to come back and loop this in. You24 have an extended work history in the fire industry.25 Correct?




10 (Pages 37 to 40)

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1 A. I do.2 Q. Is that the fire department in Houston?3 A. That's not where it started --4 Q. Okay.5 A. -- but it included that.6 Q. Okay. How many years did you spend, you know,7 fighting fires, suppressing fires?8 A. My work history starts in 1963 with the9 Mesquite Texas Fire Department. I worked there until

10 1966. My training and experience from '63 to '66 is11 primarily fire suppression. That's fire fighting on the12 trucks and housed in certain engine or ladder companies.13 The investigative aspect, I was promoted to an14 investigator captain level in the Houston Fire15 Department investigation division in 1976. My training16 started earlier than that. I continued with the fire17 department in Houston until 1986. My experience in fire18 investigation covers then an era of civil19 investigations. The fire department conducts mostly20 geared to criminal, the arson aspect. It does not --21 and I underline mostly. We investigated fires. Some of22 them were criminal acts. In 1986 I started doing civil23 side work. Those are accidental, incendiary and just24 fire investigation. That continued -- 2009, 2010 we25 were phasing out investigations on a day-to-day basis.

Page 38

1 Q. What company is that you're talking about?2 A. That one that was phased out was Magnifacts.3 Q. Okay. Was that company dissolved?4 A. That's a question for my wife. I think our5 corporation was dissolved, but I don't -- I don't take6 care of that end of the business, so I can't really7 answer you, but I think it was.8 Q. Okay. Why was it dissolved?9 A. I thought it was time to retire. I believe

10 the Lord shut me down for a while and dissolved for11 reasons of just -- I don't know what you would call it.12 Q. So why did the Lord shut you down?13 A. He gave me the company; he can take it away.14 Just prior to the closing down, we had a hurricane come15 through Houston, knocked out all the power, and it16 stayed out for a long time. And when your phone don't17 ring, adjusters and attorneys may presume that you're18 not in business. I might ought to be careful blaming19 the Lord, but I give him credit for everything that he's20 done and it's all good.21 Q. Okay. Was there any litigation that resulted22 in the business closing down?23 A. No.24 Q. Okay. So your civil fire investigation career25 began in 1986. Is that right?

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1 A. That's correct.2 Q. Okay. And so when is the last time you --3 strike that.4 Are you -- do you hold any certifications as a5 fire investigator?6 A. I've just reinstalled myself at the National7 Association of Fire Investigators and -- just within8 days. I left that lapse at the same time that we were9 closing Magnifacts down.

10 Q. Okay. So it was closing, and you said in the11 2008, 2009 time frame?12 A. I believe 2009 to 2010.13 Q. Okay.14 A. And '11 pretty well closed it out totally.15 Q. So do you hold a CFEI?16 A. I have got my -- I've reinstated myself at17 NAFI, National Association of Fire Investigators.18 Q. So that basically means you've paid your dues.19 Right?20 A. In the continuation of my answer, yes. And21 now to get my certification back, I'll have to complete22 40 hours of continuing education units.23 Q. And pass the test?24 A. No.25 Q. So when were you last active in NAFI?

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1 A. Probably 2010, '09. '10 or so.2 Q. Are you certain?3 A. No.4 Q. When's the last time you took a certification5 test for your CFEI?6 A. I don't know, sir.7 Q. More than ten years ago?8 A. No, it wouldn't be ten years, but I don't have9 any idea closer than that, sir.

10 Q. Okay. Is CFEI the only certification you've11 ever held as a fire investigator?12 A. When I was in the Houston Fire Department,13 there was another certification, peace officer arson14 investigator certification. I don't know the initials15 or the name of that, but I had that.16 Q. With regards to NAFI, did you ever have to17 retest to pass your certification?18 A. No, I don't think they do that.19 Q. Have you ever lost a certification other than20 letting the NAFI certification lapse?21 A. No. Well, you lose -- excuse me. I've got to22 correct that answer. When you transfer out or retire23 from the Houston Fire Department, you're no longer --24 unless you pick up a peace officer job somewhere, you're25 no longer a peace officer, and the State of Texas does




11 (Pages 41 to 44)

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1 not certify you.2 Q. Okay.3 A. So I guess you would lapse that, too.4 Q. Have you ever listed your CFEI as the5 credential on your CV?6 A. I may have.7 Q. Okay. It's not on the present CV. Correct?8 A. Then I haven't.9 Q. I'm asking. It's not on there, is it?

10 A. I would have to look at it. I don't -- I11 don't read my CV.12 Q. You're welcome to look at it, but I don't -- I13 didn't see it.14 A. And I'll take your word for it. I don't -- I15 don't figure I need initials behind or in front of my16 name, no. No, it's not there. I don't --17 Q. So can you tell us under oath when you began18 your investigation of this fire at the Murphy Bonded19 Warehouse whether or not you had your certification as a20 CFEI from NAFI?21 A. I've already answered that. I don't know.22 Q. You are licensed in Texas as a private23 investigator?24 A. Correct, sir.25 Q. Okay. How long have you been licensed as a

Page 42

1 PI?2 A. Since 1986.3 Q. And why are you licensed as a PI in Texas?4 A. That was a requirement for my -- to have the5 company.6 Q. What company?7 A. Magnifacts.8 Q. Which is a company that you owned?9 A. That's correct, sir.

10 Q. So Magnifacts required that you, Johnny11 Thornton, be a PI?12 A. I don't think I said it that way. State of13 Texas requires it.14 Q. Okay. So Texas required you to be a PI?15 A. Correct.16 Q. Okay. Other than a PI license, do you hold17 any other license to conduct business as a fire18 investigator?19 A. No.20 Q. Are you current in your PI license with the21 State of Texas?22 A. No.23 Q. When did that lapse?24 A. Probably in 2010, '09, in that era.25 Q. Are you required by the State of Texas to

Page 43

1 maintain that private investigator's license to conduct2 origin and cause investigation work?3 A. If you're going to conduct cause and origin4 investigations, yes.5 Q. Okay. You would agree that all of this6 material in front of us today that we've identified as7 Exhibits 4 through 7 constitutes your file, which is, in8 effect, origin and cause investigation work. Correct?9 A. This file is a consultant to Brown Dean Herman

10 and Bruce Rogers.11 Q. Okay. But you're conducting origin and cause12 work. Correct?13 A. Consulting, yes.14 Q. Okay. But you're not licensed to do it?15 A. I may not have been at that time.16 Q. Have you ever worked as an origin and cause17 investigator in the state of Louisiana?18 A. Yes.19 Q. How many times?20 A. A few.21 Q. Less than five? More than five?22 A. I couldn't tell you.23 Q. When was the last time you've worked as an24 origin and cause investigator in Louisiana other than25 this case?

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1 A. I don't recall, sir.2 Q. How many years has it been? More than five?3 Less than five?4 A. I do not recall, sir.5 Q. Have you ever testified as an origin and cause6 investigator in the State of Louisiana?7 A. No, sir.8 Q. Are you licensed in Louisiana?9 A. No.

10 Q. Are you aware that Louisiana has licensing11 requirements?12 A. Yes.13 Q. And why did you elect not to comply with14 those?15 A. The times that I went over to Louisiana, I16 always called and asked do I need a license? They said,17 You can funnel your case. Okay.18 Q. Who told you that?19 A. Someone in that bureau or division, whatever20 you call it.21 Q. What bureau or division is that?22 A. The licensing division for investigations.23 Q. Do you have a record of that?24 A. No.25 Q. For this case, did you call the Louisiana




12 (Pages 45 to 48)

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1 Department of Public Investigators and ask them?2 A. No, sir.3 Q. What sort of fire investigation training have4 you had in the last five years?5 A. I would have continued my continuing education6 units, and I don't keep of record of it because we shut7 the business down. So I cannot tell you specific. Up8 to -- I'm going to use '8, '9, '10 era, we were current9 at all times.

10 Q. So let me understand. It's your testimony11 that you would go continue your continuing education but12 you wouldn't continue your obligations under state law13 to maintain a license?14 A. I didn't say that, sir.15 Q. But that's the effect of it.16 A. When I estimate the time period, 2008, '09,17 '10, those are the same time periods that I estimate for18 the continuing education units.19 Q. Okay. Well, let's talk specifically. As to20 continuing education, you don't have a record of it, but21 what do you recall, you know, taking? Where did you22 take it? What -- who provided that training?23 A. I do not know, sir.24 Q. What state or city was it in?25 A. I do not know, sir.

Page 46

1 Q. Did you take a test as part of that continuing2 education?3 A. I think that every continuing education unit4 is tested, and the answer would be yes.5 Q. Has the science of fire investigation made any6 changes or advances in the last five years?7 A. Can you be more specific? In what?8 Q. Are you aware of any advances in science that9 impact the fire investigation field?

10 A. I don't know of any one that's earth11 shattering or changing the science of fire and burn12 pattern analysis and such.13 Q. You testified earlier that your methodology14 that you've used is consistent with 921. Is that15 correct?16 A. Yes.17 Q. What is the methodology that 921 discusses?18 A. The methodology -- and make sure I'm19 understanding you. Are you talking about the conduct a20 fire investigation or a consultant where you're using21 the scientific method? Is that what you're getting to?22 Or I don't understand your question fully.23 Q. Let me ask it this way --24 A. Please.25 Q. -- do you consider the scientific method the

Page 47

1 methodology that you need to utilize and follow as a2 fire investigator?3 A. I believe you need to and that's what we did,4 yes.5 Q. And so if there is anything in the 20116 edition of NFPA 921 that could impact your opinions,7 you're not aware of that because you don't own it?8 A. I don't know what you could write into a9 guideline. I have no idea. If you'll be more specific,

10 I will address it. But as far as the guidelines that we11 conducted a scientific investigation using a scientific12 method, there's nothing that changed about the13 methodology of investigations. There's nothing changed14 about the science or the chemistry of fire that affects15 and produces the burn patterns that were out there at16 that fire scene.17 Q. Are you required to use the scientific method18 or you just elect to utilize the scientific method?19 MR. ROGERS: Objection. Form.20 MR. MARICLE: What's wrong with the form?21 MR. ROGERS: The question is vague. Is22 he required by whom?23 Q. (BY MR. MARICLE) You can answer the question.24 A. If I can make the question, is the scientific25 method governed by any courts. I think you would find

Page 48

1 that Daubert would be what would pop into my mind when2 you ask that question.3 MR. MARICLE: Okay. So let me just4 object that you're nonresponsive.5 Q. (BY MR. MARICLE) So I'll reask the question.6 Does NFPA require you to utilize the scientific method?7 A. NFPA is a guideline. It can't require you to8 do anything. It's not an ordinance.9 Q. NFPA is an organization. A specific section

10 or edition or numbered document could be a guide or it11 could be a standard. Correct?12 A. (Witness nods head.)13 Q. Out loud.14 A. Could be a guide or a standard?15 Q. Yes.16 A. It could be a guide or it could be a standard,17 the answer is yes.18 Q. Okay. It's your testimony that NFPA 921 is a19 guide. Correct?20 A. That's my testimony.21 Q. It's your testimony that you don't have to22 follow NFPA 921. Is that correct?23 A. I never said that.24 Q. Okay. Are you required by NFPA 921 to utilize25 the scientific method?




13 (Pages 49 to 52)

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1 A. Again, the word that you're using "required"2 cannot apply to NFPA 921 as a guideline. A guideline is3 not enforceable unless it's an ordinance of some4 governing organization, and it's never been ordinanced5 in.6 Q. Okay. Let me ask this question.7 A. Yes, sir.8 Q. Is there, in fact, a standard that requires9 you to utilize the scientific method?

10 A. I think the answer would be yes.11 Q. What standard is that?12 A. I think that that would be when you come into13 the courtroom and a possibility of a Daubert challenge14 would hold your, quote, feet to the fire to go with a15 scientific method. I'm not arguing with the scientific16 method. It's just the terminology that you're using17 with 921. Daubert would require it.18 Q. What are some of the key elements of fire19 chemistry that you have knowledge of?20 A. The key elements.21 MR. ROGERS: Objection. Form.22 A. Okay. The key element of any fire backs you23 down to the basic chemistry of fire, and it's referred24 to a lot in publications as the fire triangle: heat,25 fuel and oxygen in a continuing reaction. I don't know

Page 50

1 if I've answered your question, but that's the best I2 can do with your question.3 Q. (BY MR. MARICLE) Okay. Is that your4 understanding of fire chemistry?5 A. That's the basics of it. From there, if6 you've got another question, I would be glad to answer7 that, sir.8 Q. What is fire dynamics?9 A. Fire dynamics has to do with that element that

10 I was talking about of reproducing that fire triangle to11 what is called in NFPA 921 as the fire tetrahedron. A12 continuing reaction of fire dynamics, meaning that as13 the fire advances, the heat of ignition from the next14 fuel package continues the growth of the fire. The fire15 dynamics could include a whole lot more as in the16 suppression of that fire triangle by removing what17 firefighters say is one leg, either the heat, fuel or18 oxygen. So the dynamics of fire is such a broad19 question, we could talk all day.20 Q. Okay. What is thermometry?21 A. Say it again, please.22 Q. What is thermometry?23 A. Thermometry. That's a word that I'm not24 familiar with.25 Q. What is NFPA 1033?

Page 51

1 A. 1033 was created to give a guideline for2 suggestions on possibly the minimum requirement for a3 fire investigator.4 Q. Okay. And is it your testimony that that's a5 guide?6 A. Yes, it is.7 Q. You're talking about 1033?8 A. Yes, it is.9 Q. Okay.

10 A. Thank you.11 MR. MARICLE: We've been going for almost12 an hour. Do you need to stop and take a break, or would13 you like to continue?14 THE WITNESS: I'd like to have some15 water, but we don't have to take a break unless --16 MR. ROGERS: Let's go off.17 THE VIDEOGRAPHER: We are going off the18 record. The time is 10:41.19 (Break from 10:41 a.m. to 10:56 a.m.)20 THE VIDEOGRAPHER: We are on the record.21 The time is 10:56.22 Q. (BY MR. MARICLE) Mr. Thornton, I just want to23 ask you a couple of additional questions about NFPA. If24 the principles and methodologies did not change from25 2008, why was the 2011 edition of 921 written?

Page 52

1 A. NFPA 921 is a peer-reviewed document, and2 changes of verbiage occur to insertions of new3 paragraphs. You would have to review each side by side4 to find out where the changes are.5 Q. Okay. And if you don't have a copy of 2011,6 then you don't know what changed?7 A. I have not studied 2011.8 Q. Because you don't own it?9 A. I don't, no.

10 Q. Correct?11 A. That's correct.12 Q. Okay. You said Magnifacts in the 2009 or 201013 time frame was shut down. How many cases have you14 accepted and worked on since Magnifacts closed?15 A. I would be guessing. Maybe two.16 Q. Okay. Where is the other case at?17 A. I don't know.18 Q. So you only have one case, and that's the IP19 FM case and one other, and you can't tell me what that20 other case is?21 A. I absolutely cannot.22 Q. Why?23 A. I don't -- I didn't review my files to see24 where I had worked back in 2000 -- I mean -- excuse me25 -- '01 -- excuse me -- 2010. I'll get there in a




14 (Pages 53 to 56)

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1 minute. I don't review my file folder to see what's in2 there. I couldn't tell you how many.3 Q. Well, you only have two cases in your memory4 right now that you're actively working on. Right?5 A. No. I said possibly two.6 Q. Okay.7 A. I don't have any in memory.8 Q. Okay. What made you accept this case?9 A. As a consultant to Brown Dean Herman, I picked

10 up this case.11 Q. Do you distinguish a consultant different from12 a fire investigator?13 A. I do.14 Q. And what's the difference?15 A. Consulting is to review the facts and the16 files and to render opinions and assist the attorney17 firm.18 Q. Okay. Does a consultant utilize the19 scientific method?20 A. I do.21 Q. Okay. I don't see where you acted any22 differently in this case as a consultant than you would23 have done as a fire investigator. Can you explain the24 difference?25 A. No, I can't.

Page 54

1 Q. Okay. So there is no difference?2 A. I said I can't explain it. I gave my answer.3 Q. You think there's a difference, though, but4 you can't explain it?5 A. I'll just tell you I can't explain it.6 Q. Do you recall when you were retained on this7 case what your scope of assignment was?8 A. Yeah, the -- there was a fire incident that9 occurred at this location, being the 509 warehouse at

10 IP, and that they wanted someone to look at the fire to11 assist in documenting the area of origin and cause.12 Q. I would refer you to Exhibit 4, which is your13 report. And if you could turn to page 1, I think you14 have information in there about your retention in the15 case. And you were retained to become involved to16 simply document an incident of fire. It doesn't say you17 were retained to document an origin and cause18 investigation, does it?19 A. No, it doesn't say that.20 Q. Okay. Were you asked to conduct an origin and21 cause investigation?22 A. My expertise is in fire, and that's all it23 could be, and that's the only one we've ever accepted24 during any phase of my investigative history. So if I25 don't verbalize it in this report, it doesn't negate it.

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1 MR. MARICLE: Okay. I'll object as2 nonresponsive.3 Q. (BY MR. MARICLE) If I refer you back to that4 retention document, it says you were retained to5 document. It doesn't say you were retained to conduct6 an origin and cause investigation.7 A. You've read it correctly.8 Q. I mean, you certainly could have written that9 in there, that I was retained to conduct an origin and

10 cause investigation. Correct?11 A. I could have written a lot of things.12 Q. Okay. I mean, these are your words.13 A. Absolutely.14 Q. Were you involved in the retention of any15 experts?16 A. In the early phase -- and let me -- in answer17 to that, before coming to Louisiana, I had a18 conversation with Bruce Rogers and John Hart -- I19 believe John Hart was involved in it -- where I was20 going to retain an investigator in Louisiana. Since21 that time my computers have blown away, and I'm going to22 be searching for that investigator to where he could do23 the -- I would be under his license in Louisiana along24 with, I've been told that you can follow your case. But25 other experts, as in electrical engineers and such, no.

Page 56

1 Q. Okay. So you didn't retain any expert?2 A. That's correct.3 Q. Okay. Do you know why Forest Smith was4 retained?5 A. I know what his expertise is.6 Q. Do you know why he was retained?7 A. To assist in the investigation, documentation8 of the fire scene in the electrical field.9 Q. Okay. Were you going to rely on any

10 information from Forest Smith as part of your opinion?11 A. Yes, I did.12 Q. Okay. What did you rely on from Forest Smith?13 A. In the answer to your question, Forest Smith14 as an electrical engineer, was on the scene and --15 excuse me -- certain -- delete certain -- at16 inspections, and his findings were consistent with what17 I had found as a fire investigator, to the issues of18 structural electrical wiring, appliances that might be19 connected to that structural wiring, and the wiring or20 electrical system of the Hyster 80 and any other scope21 that he might have been asked to do by the client.22 Q. So was there any opinion from Forest Smith23 that was provided to you that you utilized in your24 report of September 2012?25 A. The word "utilized," I -- I didn't rely on it




15 (Pages 57 to 60)

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1 as to the documentation of the origin and cause of the2 fire other than that it backed up what my opinion was as3 a fire investigator.4 Q. Okay. What about Bob Friedemann? Was there5 anything from his report that you relied upon in6 formulating your opinion on either the origin or cause7 of the fire?8 A. Bob Friedemann as an expert in lift trucks was9 relied on to identify certain mechanical aspects of it

10 and requirements that are the needs for certain11 appliances to be attached to it. I relied on him as a12 very capable expert.13 Q. Is that all you relied upon Mr. Friedemann14 for?15 A. I relied on or received information that16 affirmed my opinions. I didn't find anything that he17 said that negated my opinion in any manner.18 Q. In your report you talk about that your fire19 scene examination was conducted in accordance with the20 guidelines that are established and recognized by21 credible fire and forensic investigators. So the22 question I have for you is: What's a credible fire23 investigator?24 A. Credible -- credibility has to do with25 truthfulness and ability to identify -- well, first of

Page 58

1 all, recognize, identify and analyze burn patterns.2 Q. And what's a forensic investigator?3 A. Any -- that word in there, forensic4 investigator, has to do with any investigation that may5 be subject to a litigation, is the way I understand the6 word.7 Q. Okay. And when you say your examination was8 conducted in accordance with guidelines, what guidelines9 are you talking about?

10 A. In guidelines that exist that I relied on all11 of my fire investigative career would have to start out12 with NFPA documents, NFPA 921. You mentioned NFPA 1033.13 There are ASTM guidelines or -- there may be another14 word for them, ASTM methods of testing materials and the15 collection and preservation of evidence. And there may16 be others that I've relied on over the years.17 Q. Okay. Is there anything in particular you can18 point to within NFPA 921 that you utilized as a guide19 that assisted you in the formulation of any opinion that20 you have on either the origin or cause of this fire?21 A. I think my whole demeanor and approach to22 identifying those burn patterns, analyzing those burn23 patterns and then putting them together in a process of24 elimination of other potential sources of heat for25 ignition, all those would come into play utilizing those

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1 guidelines.2 Q. Do you own a copy of 1033?3 A. I probably do back at the house somewhere,4 yes.5 Q. What ASTM standards are you referring to?6 A. 860 E might be the correct number. It's been7 a long time since I looked at them. And then there's8 another one, 11 -- I want to say 1160. That can be9 researched. But they have to do with preparation of a

10 report and proper preservation of items of potentially11 valuable physical evidence. And that's the two that I'm12 referring to.13 Q. You've mentioned these guidelines, NFPA 921,14 NFPA 1033, as well as ASTM what may be 860 or 1160, but15 nowhere in your report, which is Exhibit 4, do you16 mention NFPA 921 or 1033 or these ASTM standards. Why?17 A. By number or name or quoting those, you won't18 find it. Why it's not in there, it's covered, as far as19 I'm concerned, in the simple wording that we followed20 guidelines that are accepted by credible forensic21 investigators. And I can list out all of them or the22 ones I think of today. There may be others.23 Q. Part of the licensing process, do they look24 into your background?25 A. There is a criminal history check, as far as I

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1 remember, yes.2 Q. Okay. Well, you mentioned about credible fire3 investigators, and my question to you is: If you're not4 licensed under either Texas PI rules or Louisiana PI5 rules, does that bring about your credibility into6 question?7 A. Whether or not I'm licensed or certified does8 not take away from my integrity, my credibility or my9 abilities to present this document.

10 Q. Okay.11 A. Absolutely I do not.12 Q. You would agree rules are rules. Right?13 A. It is what it is, too, but, yes, I guess rules14 are rules.15 Q. Okay. And you just selected which ones you16 want to follow and which ones you don't want to follow?17 A. I didn't say that.18 Q. I'm asking you that because you didn't comply19 with the law. Here's a rule you have to follow and you20 don't follow it. It doesn't apply to you?21 A. I never said that. That's your statement,22 sir.23 Q. Does your report, which is marked Exhibit 4,24 contain all of your opinions and the basis for your25 opinions?




16 (Pages 61 to 64)

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1 A. I don't think any report that has ever been2 formulated contains all of anybody's opinions. It's the3 basis for my opinions, just like the rest of these4 photographs and things are used to formulate those.5 Q. Have you ever written a federal report?6 A. I'm sorry, sir?7 Q. Have you ever written a federal report?8 A. A federal?9 Q. Yeah, federal court report.

10 A. I wouldn't know the difference between federal11 and any other, sir.12 Q. The only report that you've authored and13 intend to author is Exhibit 4. Is that correct?14 A. That's the only report that I know of, yes.15 And I think yes is a better answer. Excuse me.16 Q. Your report also says that the various17 theories as to fire origin, cause and spread and/or18 responsibility for the fire were and/or have been19 analyzed and tested against known published principles20 of the fire science community.21 This is the first time that you used the word22 "principles," and so what's different between principles23 and guidelines that you've earlier referenced?24 A. Principles are outlined in all of those25 documents that we've talked about and others, and it's

Page 62

1 the same thing to me. If you'll tell me what line --2 page we're talking about, I would like to read that.3 Q. I think it's page 1, paragraph 4.4 A. I don't really see any difference, sir.5 Q. So are you saying principles and guidelines6 are the same?7 A. Guidelines would present principles, and the8 principles that were used out there were applied.9 Q. Okay. And this is principles of the fire

10 science community that NAFI and the IAAI are part of.11 Correct?12 A. You would have to include ASTM and others that13 could be part of that guidelines that leads to14 principles that you act upon.15 Q. Okay. Are you a member of ASTM?16 A. No.17 Q. Okay.18 A. I have been, but I'm not.19 Q. Okay. But you're applying principles of the20 fire science community, and you're not even a member of21 the fire science communities, are you?22 A. I am not a member of some associations, but I23 am definitely in the fire science community.24 Q. The principles that you're referencing there25 in paragraph -- I'm sorry, page 1, paragraph 4, are

Page 63

1 those principles contained within your report, which is2 marked as Exhibit 4?3 A. What this says is it's based on it. I have4 tested against those published, and everything that is5 written in this document or any opinion that I express6 are -- in those photographs or anywhere else is based on7 those principles that are set out from the guidelines.8 Q. What does NFPA 921 allow you to utilize as a9 fire investigator to determine an area of origin?

10 A. Would you restate that question for me,11 please?12 Q. Yeah. I mean, what does NFPA 921 allow you to13 look at, consider to determine an area of origin?14 A. First of all, that guideline don't allow or15 restrict you in any manner. It sets out some16 guidelines, principles that you can follow. There is a17 statement in there that to be followed or be ready to18 explain why you didn't. But they're still just a19 guideline, so they don't restrict you in any way.20 Q. Okay.21 MR. MARICLE: Object. Nonresponsive, and22 I'll ask the question again.23 Q. (BY MR. MARICLE) What data does 921 allow you24 to look at as a fire investigator to determine that area25 of origin?

Page 64

1 A. And my answer is I don't see that they2 restrict you from looking at any data. So you look at3 the whole scene. And it's one area, a box. And as that4 box shrinks, by process of elimination, you may on a5 general statement come to an area of origin and cause.6 On this one, we did.7 Q. Is there any minimum data that any NFPA8 document says you need to look at to help determine the9 area of origin?

10 A. Your question to me has been answered. I've11 not been restricted by any document in this world, so12 they don't -- that guideline don't tell you what you can13 or cannot look at. So your question is just not14 understandable to me.15 Q. Did you ever hold a CFEI?16 A. Yes.17 Q. Okay. And were you ever administered a test18 for that CFEI?19 A. Yes.20 Q. Okay. And you were never questioned about21 what NFPA 921 allows you to look at to determine an area22 of origin?23 A. That's where your question drops off. When24 you say allows, that implies to me that NFPA, the25 National Fire Protection Association, has a publication




17 (Pages 65 to 68)

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1 921 that restricts. It's a guideline, and it does not2 restrict in any manner. And that's where -- when you3 use the word "allowed," it throws the question back to4 restrictions, and there's not -- I don't know where5 you're talking about. If you could show me, I have my6 NFPA 921. We could look it up and you could show me.7 Q. I'll move on, but can you express or tell me8 what opinion you have as to the origin in this case?9 A. Oh, yes, I can.

10 Q. Okay. So what is your opinion as to the area11 of origin?12 A. My opinion as to the area of origin is13 generally at the Hyster 80 forklift that was sitting at14 the general area of the open air covered warehouse, and15 more specifically, within the engine compartment at the16 unprotected manifold -- exhaust manifold, rather.17 Excuse me.18 Q. In your report, you use the term "general area19 of origin."20 A. I do.21 Q. Does 921 define a general area of origin?22 A. I do. 921 I don't think uses that word.23 Q. Okay. So what do you define as a general area24 of origin?25 A. I define a general area of origin as to that

Page 66

1 shrinking box that I spoke of earlier in this deposition2 where we know the fire started at that warehouse. It3 shrinks down to aisle D. Now when I say general area of4 origin for this fire, there's a general area of origin5 that's under an area where a Sylvania light bulb was6 attached to a fixture and a short arc or failure7 occurred in the electrical conduit above. That area was8 where the fire started. That's the general area. The9 lift truck got moved. Now the more specific area of

10 origin is described and addressed as being under the11 hood in the engine compartment on the unprotected12 manifold.13 (Exhibit 8 marked.)14 Q. (BY MR. MARICLE) I'm going to show you a15 document I've marked as Thornton No. 8, and this is a --16 I think it's a CAD drawing that you probably prepared.17 Is that correct?18 A. That's correct, sir, yes.19 Q. Okay. And I am handing you a red Sharpie.20 And what I would ask that you do is draw with that red21 Sharpie on that Exhibit 8 the general area of origin.22 A. Okay. This is not the best diagram to use for23 it. We have other diagrams that have been furnished to24 you where the -- down the center of this -- may I25 explain as I go, or do you want me to just go ahead and

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1 write?2 Q. Well, you can explain, but I'm going to have3 you still draw it.4 A. Yeah, that's fair enough.5 The D aisle had electrical power coming from6 the north panel box near this lift truck ramp.7 Q. Okay.8 A. That electrical power then had a junction9 box -- and boy, my hand don't draw straight. And

10 there's a light fixture in -- and I'm putting an X, and11 I'll put L for light fixture. There was found an arc12 on the -- excuse me. Do you want me to continue?13 Q. No. I wanted you to draw just the general14 area of origin and not all these other lines, but -- but15 you know, the damage is done, so to speak. Let me stop16 you there, so --17 So what you've drawn on Exhibit 8 is some18 electrical conduit runs. Correct?19 A. Correct.20 Q. A light. Correct?21 A. I'm sorry?22 Q. A light?23 A. I put that on there.24 Q. And an arc. Correct?25 A. I got that.

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1 Q. Okay.2 A. And then I put --3 Q. Okay.4 A. Damage done, I put general area of origin.5 Q. Okay. Wait.6 A. I've already did that.7 Q. I want you to draw a circle with this blue pen8 now --9 A. Okay.

10 Q. -- of just the general area of origin. Don't11 do anything else with that blue pen. Okay.12 A. (Witness complies.)13 Q. And can you estimate the size of that area of14 origin.15 A. The aisle width is approximately 20 foot.16 That general area of origin is in the area where the17 lift truck sat, and it's about a 4-foot wide unit.18 Q. And how do you know what the width of the19 aisle is?20 A. That's what the drawings that we have21 accumulated from different sources -- and at the time22 this was drawn, we put in 15 because you can't tell the23 aisles out there. They had them marked on the floor.24 They had them marked by stacks of white paper that were25 baled. So the 15 to 20-foot aisle is what is out there.




18 (Pages 69 to 72)

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1 Q. Okay. And then how did you determine that2 general area of origin that you've circled in blue?3 A. Okay. During the process of elimination, when4 we first got there we found that the lift truck, the5 Hyster 80, had been moved into an area close to the main6 aisle, the north/south aisle. The debris was sifted and7 examined looking for any potentially valuable physical8 evidence. At that general area of origin under that9 conduit, there was found a hubcap, is what I called the

10 thing, like a small metal disk that fit on the Hyster 8011 right front wheel.12 The area above this general area of origin13 and where the fire actually started, there was this14 junction -- excuse me -- conduit with electrical15 conductors. Insulation on that -- that conductors was16 melted away. At a point in time after the fire started17 in the forklift, the insulation burned away and an arc18 was formed, which is -- an arc mapping is a word that's19 used in NFPA 921 where you look for, search for arcs20 that occur in electrical conductors. This is a very21 good identifier.22 The hubcap laying there was taken to all the23 lift trucks that were on site -- well, two of them --24 Hyster 80 and a Hyster 90 that was parked on the south25 end to check and see if this hubcap would go back on any

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1 lift truck. It would only go back on the one lost2 hubcap of the Hyster 80 that had been moved from the3 general area of origin. When you moved it from the4 general area of origin, now the area of origin sits out5 in the north/south aisle.6 Q. Do you know when -- assuming that is a hubcap,7 do you know when it would have come off that machine?8 A. Prior to Cleo Wilson moving the forklift.9 Q. Utilizing the scientific method and

10 considering alternative hypotheses, how do you know it11 just didn't exist there before, a day before, two days12 before?13 A. The aisle -- well, using the scientific14 method, it was found there after the fire, and all the15 other evidence point toward it being lost during the16 fire.17 Q. What evidence are you referring to?18 A. The burn damage to the conductors above and19 the conduit above, the fact that this is the only lift20 truck that lost a hubcap and that the other hubcaps are21 still tight. I think that a presumption, based on fact,22 can be made that this was a part of the Hyster 80.23 Q. Okay. Assuming that it is part of the Hyster24 80, my question is how do you know it didn't just come25 off a day before and it's just laying there?

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1 A. Coupled with the other evidence, that is a2 possibility, but most probably it came off during the3 fire.4 Q. What would cause a hubcap to come off?5 A. When you heat up metals, they have a tendency6 to shrink or expand at different ratios. Two different7 metals will have a different ratio of thermal distortion8 or shrinkage or enlargement. This metal hubcap is a9 thin metal. This hub is a very heavy; therefore, one of

10 them has a heat differential of shrinkage and expansion.11 Or it could have been that the air -- this hubcap fits,12 quote, tightly on to this lift truck's hub. If you13 overheated and expanded the air in there, that could be14 the explanation.15 Q. Did you conduct any testing to see if you16 could heat a hub and make a hubcap pop off?17 A. No, I did not.18 Q. This is just speculation on your part?19 A. Speculation is not a good word. It's based on20 previous experience with metals and such. Metals21 expand, contract, and different metals expand and22 detract or you couldn't have even like a thermometer --23 excuse me -- a thermocouple that opens and closes. It's24 a scientific fact. And it will do that.25 Q. And we still have the possibility, assuming

Page 72

1 that's a hubcap, that it was just laying on the ground2 from a day or more before this fire?3 A. The possibility is out there, but it's not the4 most plausible to me, the most probable.5 Q. Okay. What data did you gather under the6 scientific method to determine whether or not it could7 have been out there for the day before, several days8 before? I mean, if you want to refer to your file and9 point me to data, by all means, but I don't see it

10 because I've read it.11 A. Well, and again, the lift trucks are working12 in there in and out. That possibility of eliminating13 the hubcap as a factor that places my area of origin is14 one factor. I have witnesses that place the lift truck15 there. I've got a witness in the conductors and the16 conduit. When you put them all together, a reasonable17 and prudent man, I think, would come to the conclusion18 that it fell off during the fire. The possibility --19 play with them all day long: possibility, probability or20 plausibility. Most probably this hubcap failed exactly21 like I said.22 Q. Do you have any information in your file23 that -- what amount of heat would have to be imparted24 into this hub or this hubcap to get it to pop off?25 A. No.




19 (Pages 73 to 76)

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1 Q. Okay. That's why it's speculation. You don't2 have any information to support your opinion.3 A. That's your statement, yes.4 Q. Do you want to point to your file and show me?5 MR. ROGERS: Is there a question pending?6 MR. MARICLE: Yeah.7 Q. (BY MR. MARICLE) I mean, where is the8 evidence to support that opinion?9 A. In my file, you won't find it.

10 Q. Is there information in your file that would11 support the blue area of origin that you've drawn on12 Exhibit 8?13 A. Oh, I think it's just abundance of evidence14 that the general area of origin is there. In my file15 you'll find statements -- not just my file, but the16 depositions, you'll find statements by Gregory Charles17 exactly where the fire was when it was first noted and18 the conditions and the behavior of the fire that19 occurred right after that, the burn patterns that are20 irreversible damage that the fire caused under the hood21 and in the area of that unprotected exhaust manifold.22 The burn patterns on the floor, the arc mapping that was23 done. They found arcing directly above this general24 area of origin. And there may be more.25 Q. You mentioned Greg Charles, but I mean, how

Page 74

1 many people worked that night?2 A. Greg Charles was on duty. Evan Bowers was on3 duty. Cleo Wilson was on duty and Sando Anderson. And4 truck drivers were backed up on what they call a5 diversion from the mill.6 Q. What are the names of the truck drivers?7 A. I have no idea.8 Q. Did you talk to any of them?9 A. No, sir.

10 Q. Do you know how many it was?11 A. I have no idea.12 Q. Who is the first witness to see the fire?13 A. The first witness that saw the fire was14 Gregory Charles.15 Q. What's your basis for that?16 A. Based on the whole investigation, reading of17 all the depositions and his direct statement to me.18 Q. So it's your testimony that there's nothing in19 any of the depositions that's in your electronic file20 that contradicts Greg Charles being the first witness?21 A. I have no idea of any evidence such as that.22 Q. Okay. If there is, would it surprise you?23 A. It would be -- well, it didn't happen, first24 of all.25 Q. So you put -- did Greg Charles tell you he was

Page 75

1 the first witness?2 A. He didn't say he was the first witness, but3 he's the one that discovered the fire, so that could be4 a good presumption.5 Q. Okay. Did he tell you that he was the one who6 discovered the fire?7 A. I can tell you what he told me. He did not8 say, I was the first witness, no.9 Q. Are you assuming that he discovered the fire?

10 A. Based on what -- his statement in front of all11 those that I listed, those four guys, and they never12 contradicted him. A reasonable and prudent man would13 believe that Gregory Charles discovered the fire. It's14 pretty simple.15 Q. I mean, you said they didn't contradict you,16 but they didn't want to talk to you. Right?17 A. That is true.18 Q. Okay. On your diagram, No. 8 there, do you19 have any measurement showing how far up that aisle that20 area of origin with your blue circle is?21 A. And that's why I said we've got better22 drawings than that.23 Q. Okay. Is there any measurements you have in24 your file that would indicate?25 A. We can go through and get those if you want to

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1 do that.2 Q. Okay.3 MR. MARICLE: Let's take a break while he4 finds those.5 THE VIDEOGRAPHER: We are going off the6 record. The time is 11:34.7 (Break from 11:34 a.m. to 1:07 p.m.)8 THE VIDEOGRAPHER: We are on the record.9 The time is 1:07, and this is the beginning of tape 2.

10 Q. (BY MR. MARICLE) Okay. Mr. Thornton, we're11 back from lunch and I just want to hand you back12 Exhibit 8, and this is marked Thornton 8, and I do13 attach this to the deposition.14 And we were looking at this before we broke,15 and I do want to give this back to you. And do you have16 an ink pen or -- you got one there?17 A. Yes.18 Q. Presumably it looks like a blank ink pen.19 A. It is.20 Q. I would like for you -- Greg Charles witnessed21 something and he reported that information to you, but I22 want you to tell me where you understand Greg Charles to23 have been on that diagram there and just locate him with24 that black ink pen with just GC for his initials and we25 can circle it.




20 (Pages 77 to 80)

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1 MR. ROGERS: Objection. Form.2 A. And Greg Charles when he first observed the3 fire, he observed the smell of smoke.4 Q. (BY MR. MARICLE) Okay.5 A. The smoke, right?6 Q. So where was he on that diagram?7 A. And I never pinned him down to exactly which8 of the trailer docking areas he is at. On the north9 end, 1 through 8. On the south end is 8 through 16 --

10 excuse me -- 9 through 16. 9 was where he dumped loose11 paper, so I know he's not in there. The best12 information I can give you, there's a compressor13 sitting -- can I put compressor here?14 Q. Sure.15 A. The compressor -- and I'll put a C with a tag16 line and write out compressor where I would remember it.17 The Hyster 90 he left parked somewhere around F2 and G1.18 Q. Okay.19 A. So I'm going to write Hyster 90 if you don't20 mind.21 Q. Okay. Just save room to write GC on there --22 A. Okay.23 Q. -- for Greg Charles.24 A. Okay, sir. And that's where we're getting to.25 This is the -- where he was when he first had

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1 notification, notice of a fire was smoke, he had went2 into one of these trailers that he was offloading. When3 he backed out from whichever trailer that was, he saw an4 orange glow at the D aisle. And that's where he was5 somewhere, and I'm going to write Greg Charles or GC --6 well, I'll just write it out. Greg Charles somewhere7 around the Hyster 90. The reason I say that is he had8 the thought to drive up to the D aisle where the fire9 was. The second thought, probably the best, was to get

10 off the Hyster, gather some fire extinguishers and11 travel that distance to the north to the fire. That's12 my best understanding at the Hyster 90 where he left it.13 Q. Okay. Just so I can make sure the record is14 clear, so on the right side of this document, Exhibit 8,15 you've drawn Greg Charles' -- or written Greg Charles'16 name and drawn an arrow with a circle. Is that right?17 And that's near the H 90?18 A. The circle was a G and -- but yes --19 Q. Okay.20 A. -- you're correct.21 Q. A G?22 A. I think I made a G there.23 Q. Okay. G for Greg?24 A. Yes, sir.25 Q. Okay. And then prior to our break, you were

Page 79

1 going to look for measurements to the area of origin.2 A. Yes.3 Q. Okay. And so what do you have for us?4 A. I have -- I printed out some documentation.5 And the measurements that we're interested in, as I6 recall it, was where the lift truck was at what I call7 the general area of origin. Is that -- am I on track8 with you?9 Q. Well, I want to talk about in general.

10 A. In the hubcap. Excuse me. I interrupted you.11 Q. Yeah. You were going to look for measurements12 relative to where that hubcap was up the D aisle.13 A. Yes.14 Q. Okay. So what measurements do you have?15 A. Okay. And this one is -- do you want to look16 at it a minute? This is a breakout from the overall,17 and you can see D1 and D2 --18 Q. Okay.19 A. -- with the lift truck and E19 or whatever the20 hubcap number on the evidence list, the artifacts list21 is positioned. And I can give you measurements based on22 how that AUTOCAD drawing was created if you want to go23 there.24 Q. All right. If you look at the hubcap there,25 how far into the D aisle is that hubcap? Do you have

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1 that measurement?2 A. Into the D aisle -- and my measurements are3 based on the centerline of the main north/south aisle4 that I'm pointing to here on the document.5 Q. Okay.6 A. The center of that aisle is our base for7 positioning that hubcap.8 Q. Okay.9 A. If -- if you count the purlins -- are you

10 familiar with purlins, sir?11 Q. Are you talking about ceiling purlins?12 A. Yes --13 Q. Okay.14 A. -- in the ceiling area. There are 20 purlins15 to a point just before -- 22 inches away from, rather,16 the hubcap and the conduit arc, the arc in that conduit.17 So the measurement from the outside of the main aisle,18 using the purlins, you have 20, plus 22 inches.19 Q. Okay.20 A. So it's 21-foot, 10 inches.21 Q. So the purlins are on 1 foot centers?22 A. No, 5-foot centers.23 Q. 5-foot centers?24 A. Yes.25 Q. And how many are there?




21 (Pages 81 to 84)

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1 A. There would be 20 -- four times five is 20.2 Q. So how far -- I'm not following your math.3 A. Okay. From the outer edge of the building --4 Q. Okay.5 A. -- you start with the purlins going on 5-foot6 centers, and when you get to four of them at 20-foot,7 plus 22 inches, is where the arc in the conduit was.8 The hubcap was directly below.9 Q. Okay.

10 A. And that's how we position that.11 Q. So four purlins into the building?12 A. Plus 22.13 Q. Okay. 22 inches?14 A. Yes, sir.15 Q. Okay.16 A. Thank you.17 Q. That main aisle that you referred to, what is18 the width of that aisle?19 A. The main aisle? They're about 15-foot, is the20 way I've got them laid out, sir.21 Q. Are you talking about the D aisle or the main22 aisle?23 A. Excuse me. The main aisle -- this shows to be24 25. I don't think it was 25 foot. But, okay, it was25 because it ran the length of that. The main aisle is 25

Page 82

1 foot. And you can see that on Exhibit 8 here --2 Q. Okay.3 A. -- from outer limit of the slab to the first4 column. Okay. That was, quote, the main aisle.5 Sometimes I think they spilled over or overloaded it, so6 it may have been more narrow --7 Q. Okay.8 A. -- in places.9 Q. So it was 20 or 25 feet? I forget already.

10 A. Approximately. Yes, 20 -- 25 is what we11 measured from the columns.12 Q. Okay.13 A. And that's the D -- excuse me -- north/south14 aisle.15 (Exhibit 9 marked.)16 Q. (BY MR. MARICLE) Okay. And so I've gone17 ahead and labeled as Thornton No. 9 -- this is the, I18 would say, detailed drawing of where you located the19 lift truck and the hubcap within the D aisle. Is that20 fair to say?21 A. That is true.22 Q. Okay. And as I understand it, your testimony23 is that hubcap is about 20 feet plus 22 inches up that24 aisle. So is that --25 A. Measuring from the outer limits of the

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1 overhang.2 Q. Okay.3 A. The roof overhang, yes.4 Q. All right. And is your arc located on that5 same Exhibit No. 9?6 A. The arc? Yes.7 Q. Okay. And is it labeled?8 A. No.9 Q. Okay.

10 A. Not on this diagram.11 Q. Okay. Can we label it? And how are you going12 to label it first, so we can --13 A. I can tag -- it is labeled in other plats that14 we have drawn. It is -- I'm trying to think of a15 number. If we pull the number up on the evidence,16 artifacts -- see, I've got E18 for the hubcap.17 Q. Just so it is distinguished, though --18 A. Okay.19 Q. Never mind.20 A. I don't know the E number off the top of my21 head.22 Q. Okay.23 A. Go ahead.24 Q. I just wanted you to --25 A. That would be fine.

Page 84

1 Q. -- indicate with that red marker there where2 the arc is on that diagram.3 A. (Witness complies.)4 Q. So how close is the hubcap to the arc event?5 A. The arc is not moved at the time of6 measurements. Okay. So we know that that's that 207 plus 22 -- 20 feet plus 22 inches. The hubcap is on the8 floor below. I discovered it, and there were other9 people sifting the debris and such. It was in the same

10 area directly below when we did a plumb line from the11 arc down. So -- and I've marked this as close as I can12 to the arc and the hubcap.13 Q. Okay. And did you put an actual tape measure14 on this from the outside wall there to the hubcap to15 determine number of inches?16 A. No. I used a plumb line from the arc down.17 Q. Okay. But I'm just saying from the outside of18 the building to the hubcap, did you put a tape measure19 on it?20 A. No, I did not.21 Q. Okay. It was simply counting the purlins?22 A. Yes. By figuring -- measure the center line23 for the purlins and then counting them was the way we24 calculated it.25 Q. Okay. And you told us earlier that it's your




22 (Pages 85 to 88)

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1 opinion that the area of origin is the lift truck, but2 more specifically within the engine compartment. Is3 that correct?4 A. Engine compartment and at that unprotected5 exhaust manifold, yes, sir.6 Q. And did you use burn patterns to get you to7 that area of origin?8 A. All of those burn pattern analyses and9 recognition of those burn patterns, yes.

10 Q. Okay. And when you say those burn patterns,11 can we talk about specifically -- and if you need to12 refer to a photograph, certainly, but what photograph --13 I mean, what burn pattern are you trying to identify or14 point me to to help explain this area of origin?15 A. This area of origin and burn patterns is a16 very broad question. Burn patterns are those17 irreversible destructive type damage to components of a18 structure or even contents of the structure. They're19 all burn patterns. We'll start out in this20 conversation, the arc on the conduit was confirmed that21 it was an arc and it was from the inside of the conduit.22 That's a burn pattern. The conductors, those copper23 wires inside the conduit, were arced, too, and had to be24 pulled loose. They were lightly attached or welded25 during the arcing event. That's a burn pattern. The --

Page 86

1 as far as I'm concerned, the hubcap is a pattern of2 damage that was caused by the fire, not just3 coincidental that it was there. Burn patterns on the4 lift truck itself, if you want me to go into that.5 Q. Yes. I mean --6 A. Yeah.7 Q. -- can you point me to a photograph here? I8 mean, you have photographs identified in your report.9 A. Sure.

10 Q. Is there a photograph there that you would11 like to point us to?12 A. Yeah, that -- I could pull those up, and it13 will be --14 Q. Right there.15 A. The first burn pattern that I have that I want16 to talk to you about, and I've already talked to you17 about is on page 8, midway down the page. You've got a18 picture with the tape measure in it showing that metal19 arced through from the inside. And then the next step20 was the copper conductors being welded or arced21 together.22 Q. Okay. I thought you were going to show me a23 burn pattern on the Hyster lift truck.24 A. Oh, I thought you just wanted me to --25 Q. Okay.

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1 A. -- identify. Okay. On page 12 --2 Q. Okay.3 A. -- more direct to you -- and this is a black4 and white copy, but we've got color. At midway of the5 page, there's a picture of the Hyster 80. Center of6 that picture is the -- what I call the cowling or the7 hood with the driver's seat sitting center. Unique burn8 pattern there is that you do a comparison of left-hand,9 right-hand side of the cowling. On the left-hand

10 driver's side, the cowling -- it's all fiberglass on11 both sides equally. The cowling itself is shown in this12 photograph on the left-hand side of page 12. The13 cowling received heat damage and fire damage that caused14 it to break loose, become totally weakened directly15 above the unprotected exhaust manifold. When I compare16 the other side, you find that the cowling is still,17 quote, strong or stronger. There's no localized fire18 damage on that side.19 Looking at -- I can't read that -- on page 13,20 another picture of the Hyster 80 is the back of the21 metal seat where if -- where the driver 's seat is. I'm22 sitting here. The back is metal covered with some23 fabric and probably foam. Directly in the center of24 that metal component, there's a heavy oxidation. And25 that's exactly what fire is is rapid oxidation, rapid

Page 88

1 rust. It's rusted up. All the rust prohibitive is2 burned away indicating that the -- and this is a3 terrible picture, black and white xerox, but you can see4 it real clear in the color photograph that you've got5 oxidation indicating there's heat coming out of that6 engine compartment that's abnormal and not expected.7 There's not enough heat produced in the engine8 compartment to take away that rust prohibitive, the9 paint and everything else. So this is a good burn

10 pattern that indicates to me that the fire is coming11 from within. Go ahead, please, sir.12 Q. Okay. The two photos I want to look at, you13 mentioned the top one or the left side one on page 8 --14 A. Yeah.15 Q. -- and then the top one on page 13. Can you16 find in your photographs here in front of us those two17 images so we could see them bigger and in color?18 A. Can I'll pull them up on the computer? It19 would be a heck of a lot --20 MR. GREY: It was page 12 and 13.21 MR. MARICLE: Oh, instead of 8?22 THE WITNESS: 7, 8. So --23 MR. MARICLE: Page 12 and 13. Okay.24 THE WITNESS: I think it was 12 and 8.25 MR. GREY: 8 was the wires. That's why I




23 (Pages 89 to 92)

Page 89

1 think you moved on.2 MR. MARICLE: Okay.3 THE WITNESS: Say that again, please.4 MR. GREY: I think we moved on from 85 because that was a picture of the battery cables. I6 think you focused on 12 and 13.7 MR. ROGERS: Pages 12 and 13.8 MR. GREY: The pictures on those pages.9 THE WITNESS: Okay.

10 MR. GREY: That would be great. I11 agree --12 THE WITNESS: We've got this marked.13 Let's don't lose it.14 MR. ROGERS: The first one is IMG 2863,15 if you see the file names that are on the disks.16 MR. GREY: 2863?17 MR. ROGERS: 2863.18 MR. MARICLE: I would rather use the19 photographs so we can --20 MR. ROGERS: Yeah, unfortunately, I don't21 have these with the Bates numbers.22 MR. MARICLE: It doesn't have a Bates.23 Well --24 MR. ROGERS: I'm just looking at the25 files on my computer, so I don't have the Bates number

Page 90

1 here.2 MR. MARICLE: Can you print that quickly?3 MR. ROGERS: You know, you have a point.4 MR. MARICLE: Let's go off the record5 while we're gathering these two photos.6 THE VIDEOGRAPHER: We are going off the7 record. The time is 1:25.8 (Break from 1:25 p.m. to 1:39 p.m.)9 THE VIDEOGRAPHER: We are on the record.

10 The time is 1:39.11 (Exhibit 10 marked.)12 Q. (BY MR. MARICLE) Mr. Thornton, we're back on13 the record. And we are looking at page 12 of your14 report, and there are two photographs on that page. The15 upper photograph on the left, I am showing you what I16 have mark as Thornton Exhibit 10. And is that the same17 image?18 A. Yes, sir, I believe it depicts the same thing19 that's in my report.20 Q. Okay. So we attach Exhibit 10 to the21 deposition.22 (Exhibit 11 marked.)23 Q. (BY MR. MARICLE) And the bottom right picture24 on page 12, I'm showing you what we've marked as25 Thornton Exhibit 11. And is that the same image?

Page 91

1 A. Yes, sir, I believe it is.2 Q. Okay. So we'll just attach that to the3 deposition?4 A. Exhibit 11 you have.5 Q. Okay. So flip to page 13 of your report.6 A. I'm there.7 (Exhibit 12 marked.)8 Q. (BY MR. MARICLE) And I'm showing you what is9 marked Thornton Exhibit 12. And is that the same image

10 but what's on your report is actually zoomed in or11 cropped?12 A. That -- that would be accurate, sir.13 Q. Okay.14 A. Exhibit 12 is right.15 Q. So we'll attach that to the deposition. And16 now I'm showing you what is the bottom photograph on17 page 13, ironically labeled Thornton 13. And is that18 the same picture?19 A. I believe it is, and it's cropped.20 Q. Okay. So we'll attach all four of those to21 the deposition.22 (Exhibit 13 marked.)23 Q. (BY MR. MARICLE) So just so that we're clear,24 you utilized the fact that we've got an arc up the D25 aisle and a hubcap on the ground to establish your area

1 of origin?2 A. That's partially right.3 Q. Okay. Is there anything else we need to add4 to that?5 A. Well, the whole scene dictates that, plus6 interviews, but I used that as one or two elements of7 that.8 Q. Okay.9 A. The hubcap, the arc and.

10 Q. And then you placed the origin of the fire11 within the engine compartment of the truck based upon12 what you described as burn patterns to the cowling. Is13 that correct?14 A. That's as far as you go, yes.15 Q. Okay. So I'm referring you back to Exhibit16 No. 11, and that's the close-up of the left side of the17 cowling. In your report you describe what is a clean18 line of burn through?19 A. (Witness nods head.)20 Q. Yes?21 A. Yes, sir. Excuse me.22 Q. So is what's depicted in photograph 11 a clean23 line of burn through?24 A. The burn through that I'm referring to -- yes25 is the answer.




24 (Pages 93 to 96)

1 Q. Okay.2 A. And then we'll talk about it if you want to.3 Q. Okay. I know that you were retained on4 January 14th, but you didn't reach the scene, I think,5 until January 20th. Is that right?6 A. That is correct, sir.7 Q. Okay. Did you have anybody at the scene8 before you arrived on the 20th?9 A. No.

10 Q. Okay. Because I notice in the photographs11 that there are barrels in some of the photographs. It's12 got red flagging around it. Who placed that there?13 A. I can't think of Gabe's last name.14 THE WITNESS: Can you help me, please?15 MR. ROGERS: Moreno.16 A. Gabriel Moreno with SEAL had been retained by17 another group, and he had made the scene earlier --18 Q. (BY MR. MARICLE) Okay.19 A. -- than anyone else other than firefighters --20 Q. Did you -- I'm sorry.21 A. Excuse me.22 Q. I don't want to cut you off.23 A. It's my fault.24 Q. Did you secure Gabe's photographs?25 A. No, I have not.

Page 94

1 Q. Okay. When we look at burn patterns, the2 patterns that are depicted in photograph number 11, do3 you know when those patterns were created?4 A. Early on in a localized area. When they5 started was at the initiation of the fire, initiation or6 ignition of the fire. The heat buildup started the burn7 patterns. They went to completion at a point in time.8 Q. Would you agree with me that origin patterns9 or patterns that are created early on in a fire may be

10 covered up by subsequent burning?11 A. That could be a good statement. Things can12 fall down on something and obliterate it to a point in a13 hypothetical fire to where you can't tell what the14 origin is.15 Q. Okay.16 A. A hypothetical is what I'm answering.17 Q. Right. I mean, the burn patterns depicted in18 photograph 11, is that burn patterns from early on or19 they're burn patterns from later in the fire that20 produced what we're seeing in photograph 11?21 A. Based on the whole scene examination,22 interviews and such, this has to have happened during23 the ignition phase of the fire.24 Q. So when -- and this fire started at what time25 on January 7th? I mean, approximately between 10 and

Page 95

1 11:00 at night?2 A. Yes, it was that.3 Q. And I can't remember the minutes.4 A. Yes.5 Q. But you think what we're looking at in6 photograph 11, the fact that flame has come through and7 really separated part of this cowling would have been8 that way sometime that evening of January 7, 2010?9 A. You used the word "flame." The flaming

10 ignition may have occurred at the time that the lift11 truck was being moved by Cleo Wilson. But early on,12 there's no other way, other than ignition time, that13 these burn patterns could have been formed.14 Q. Okay.15 A. They're distinct and unique to that, yes.16 Q. Did you talk to any witnesses who gave you any17 facts or data to show that this cowling came off on18 January 7, 2010?19 A. Just contrary to that. It didn't come off20 until after the fire and during Gabe's investigation.21 It was intact, according to him. The brake line when he22 touched it, it fell off to the ground. When I got23 there, it was on the ground. We put it back for these24 photographs --25 Q. Okay.

Page 96

1 A. -- restructuring.2 Q. You indicated that this -- what's depicted in3 photograph or Exhibit 11 is evidence of a clean line of4 burn through.5 A. That's what I call that ragged edge is a clean6 line of demarcation across the upper portion going left7 to right or right to left in the Exhibit 11. This burn8 pattern here is consistent heat directly above and in9 proximity to the exhaust system.

10 Q. Do you think flame made that piece separate?11 A. Well, it could have went to flaming ignition,12 or it could have been heat damage to the fiberglass and13 the deterioration. The reason I don't use the flame14 like you're using it and I don't -- if you look at15 evidence number 9, which is the cowling that was16 separated and we packaged it to not damage it, it's more17 intact. At the lower edge, there's a swoop upward from18 the left over to the right side. It's intact all along19 there, but that clean burn line, whether it's heat or20 flame -- I don't really know -- but that line right21 there is a notation -- a connotation and an indicator of22 heat rising in that compartmentalized fire.23 Q. I'm just looking for a colored pen. Do you24 have the red one?25 A. No.




25 (Pages 97 to 100)

Page 97

1 MR. BUTLER: What color do you want?2 MR. MARICLE: It's buried, Johnny.3 THE WITNESS: Keep it away from me. I'll4 go crazy.5 Q. (BY MR. MARICLE) This will work,6 Mr. Thornton. So we've talked about this burn through,7 and it's really the upper edge of that left side of8 cowling. Right?9 A. Yes.

10 Q. Okay. So I'm handing you an orange Sharpie.11 If you could, just on Exhibit 11 kind of outline that12 burn through.13 A. And I'm going to make a line from the left on14 Exhibit 11, upper portion of the cowling, and you can15 see on above it is the shell -- that's the metal frame16 for that seat. Extending from that point, it will cross17 to where the cowling stops near the frame is what I'm18 calling a process of burn through, a clean burn. Heat19 rises, and that's where the most damage to the cowling20 was, is right along that line.21 Q. Okay. Wouldn't the heat rise within that22 compartment evenly?23 A. It's according to where -- evenly -- it's24 according to where the ignition area is and where is the25 combustible fuel load. If I've got more fuel and paper

Page 98

1 collected in this area of the exhaust system beyond2 that, heat rises. When it heats an obstacle, a ceiling,3 a roof or the roof area of that seat, then it's going to4 go over. It then exited at the line of least resistance5 behind the seat, causing that oxidation I was talking6 about on the metal. But as far as being uniform, I7 think the damage was unique and different than when8 compared to same, similar material on the right-hand9 side.

10 Q. Are there any other patterns on the cowling11 itself that help point to the area of origin?12 A. I'm probably going to go over it again, is the13 lack of a pattern is a pattern. In other words, if I've14 got burn through and weakening of this cowling, if your15 premise is while ago, don't it heat evenly, and my16 answer was, according to the combustive fire load and17 where it started. The burn pattern that we're looking18 at in this question is that it didn't do it to the right19 side, so that burn pattern. Internally you've got heat20 stress to the aluminum components of the alternator or21 generator -- it's an alternator and other thing where it22 collapsed due to the heat stress, again, on the same23 side of the -- shown in 11.24 Q. Okay. Looking at Exhibit 11, can you tell me25 where that fire impacted that cowling first? Is it on

Page 99

1 the left side, the center, the right side of that2 photograph?3 A. You go back to your -- your theory and4 statement is good. It rises evenly. That's why I have5 this line of demarcation. It was rising from within the6 engine compartment, as I'm indicating, on either side of7 the cowling absence here. The heat followed that line8 of the cowling. When it got upwards, it starts banking9 down and causing damage and deterioration, a good burn

10 pattern there.11 Q. Okay. What's the highest portion of that12 cowling? Is it that edge that you've drawn that line on13 on Exhibit 11, or is there some other portion of the14 cowling that would have received greater heat?15 A. There is a taller portion of it. And sitting16 here today, I can't answer you if that's solid or if17 it's hollow. But for whatever reason, the heat was18 captured and did the most damage along that line.19 Q. Do you attribute any significance to the20 fiberglass fibers that are present in Exhibit 11?21 A. It's all significant. Can you explain what22 you mean?23 Q. Well, I mean, I see fibers in that photograph.24 And I'm just wondering, is that what we would expect to25 see if there's clean burn through? Or should we be

Page 100

1 looking for something else?2 A. The resin in fiberglass is what burns. And3 the remaining residue to a degree is going to be the4 glass and some of the fiber. So you're going to have5 that, and those jagged edges, almost hairy looking, is6 the fibrous portion of the fiberglass.7 Q. Okay. So when did this cowling break off this8 left side section?9 A. Gabriel told me on the date -- excuse me --

10 On the date of meeting him out there that11 while he was looking around, that fell off. He touched12 it or whatever happened. I wasn't there. I don't know.13 But that -- whatever date his inspection was is when it14 fell off, because he told me, he said, my photographs15 will show it in place.16 Q. Do you have his photographs?17 A. No. He told me this.18 Q. I mean, you say on page 12 of your report that19 the damage was to the extent of a clear line of burn20 through that allowed the fiberglass type material to21 become detached. Is that a true statement?22 A. To me it is, yes.23 Q. Okay. But you're telling us now that it24 didn't separate until Gabe moved it?25 A. My -- your question -- the answer I gave you




26 (Pages 101 to 104)

Page 101

1 is I don't think that he went up there and tore it, as2 in cut a line across there. The deterioration was very3 easy to read and it was heat stressed on both this4 Hyster 80, which was marked E1 and the cowling portion5 was E9. So he didn't tear it off. It fell off.6 (Exhibit 14 marked.)7 Q. (BY MR. MARICLE) I'm going to mark as8 Exhibit 14 a photograph that has been produced by NACCO9 with a NACCO Bates number -- or NACCO, I apologize --

10 02458. Is this a photograph that you've seen before?11 A. I'm going to say no. I don't think I've seen12 this photograph.13 Q. Okay. On Exhibit 14, can you point to that14 and show me any clear line of burn through?15 A. Yes, I can.16 Q. Where is that?17 A. In Exhibit 14, the cowling is over to the18 right portion of the photograph. And you can see the19 more solid look to the cowling, E9 as we tagged it out20 there on the scene, and it's still available to be21 looked at. E9 shown strength of the fiberglass,22 whatever strength that is. That is comparable, just a23 little hotter than the right side.24 But in answer to your question, when you get25 at an area where my finger is in the right-hand --

Page 102

1 excuse me -- the left-hand side, extending upward over2 that cowling, you can see heat stress. And I believe3 this was before it got broke loose. But there's4 definitely a pattern of burn damage that would be5 recognizable easy.6 Q. Okay. Are there any other alternative7 hypothesis that could explain why the cowling to the8 left is simply of a different color than as it appears9 to the right side of this photograph? I mean, you're

10 saying on the right side it's darker. Is that11 significant?12 A. I didn't say -- I don't think I said darker.13 Stronger looking, you mean? Are you talking about --14 I'm sorry. I'm not tracking with your question. If you15 could point to where you're talking about for me.16 Q. The left side of the cowling that broke17 away --18 A. Yes, sir --19 Q. -- in your photographs, okay --20 A. Yeah.21 Q. -- is there another alternative hypothesis22 that could explain why there is simply a difference in23 color and you're using that color as evidence of an24 indication of heat?25 A. Okay. Let me borrow that just a minute and

Page 103

1 make sure we're on the same page with color. The color2 and experience and looking at E9 and the component E1,3 which is the Hyster 80, and looking at it -- a fire4 investigator looks at that, and he's going to see5 distress, localized distress caused by heat. You asked6 me is there any other hypothesis. That's localized7 heat. Every time you look at it, it's going to be8 localized heat, and you've got to find out why there's9 localized heat under that cowling.

10 Q. Okay. So let me ask a question so I can get11 an answer.12 A. I'm sorry.13 Q. Did you develop an alternative hypothesis to14 explain why we see a difference in the cowling cover?15 A. I didn't develop one because there's no16 evidence of one.17 Q. Does 921 -- or the use of the scientific18 method require you to consider alternative hypotheses as19 a way to test what your working hypothesis is?20 A. Specifically, 921 doesn't tell you, in my21 opinion, to find another hypothesis as to why this is22 the only burn damage. You take a comparative process of23 elimination of the left side of the cowling and the24 right side and you've met the testing of hypotheses, is25 what would a reasonable man come to a conclusion that if

Page 104

1 one side's not burned and the other side has suffered2 heat stress, the hypothesis has to go back to fact.3 There's more heat on that side of that cowling.4 Q. Is it your testimony that one side of this5 cowling is not burned?6 A. The E9 cowling versus the exemplar that's on7 the other side is not burned as bad.8 Q. Okay.9 A. But -- the one on the right side is not burned

10 as bad as the left side.11 MR. MARICLE: Can you read back his12 answer? Not the immediate one, the previous one.13 (Requested testimony read.)14 Q. (BY MR. MARICLE) Okay. So I mean, you said15 one side's not burned, but yet Exhibit 14 shows that the16 cowling does have burning. Correct?17 A. That side.18 Q. Okay.19 A. Yes, sir.20 Q. Okay. So when you said there's no burning,21 that's not correct?22 A. I believe you're misinterpreting or I'm not23 speaking clearly. One side, the driver's side of the24 complete cowling shows a lesser degree of heat stress25 than the side you're holding in Thornton 14. That side




27 (Pages 105 to 108)

Page 105

1 shows extreme localized heat damage, indicating that2 your hypothesis has got to be find out why you have this3 heat stress that you don't have on the right side of4 that seat cowling or hood covering.5 Q. Okay. You consider the left side to be the6 driver's side?7 A. The left side is -- this is a photograph of8 what I consider left side.9 Q. Okay.

10 A. If I'm sitting driving in that lift truck, my11 left side is here just like in my truck.12 Q. Okay.13 A. The right side is on the other side.14 Q. Yeah.15 A. Yes.16 Q. Where is the greater fuel load in this17 building relative to the photograph of this lift truck18 or the lift truck depicted in Exhibit 14?19 MR. ROGERS: Objection. Form.20 Q. (BY MR. MARICLE) Is it to the right side of21 the lift truck or to the left side of the lift truck?22 MR. ROGERS: Form.23 A. That's a key burn pattern that you've come24 into. The right side of the -- excuse me. The25 warehouse at the right side of this lift truck at this

Page 106

1 position is more fire damaged and more heat stressed.2 Q. (BY MR. MARICLE) So could that explain why we3 see a line of demarcation in Exhibit 14?4 A. No. That's absolutely opposite and that5 exactly proves the point that I should have been making,6 is that if the other side has the more combustible fuel7 load, the other side should be exposed to heat and8 deteriorate quicker, but this is opposite of the main9 fire. It's on the cool side, I'll call it for this

10 conversation, exterior of the warehouse. All the11 combustible fuel load of that total waste, almost total,12 is on -- and it should have affected the right side.13 You're right. It didn't.14 Q. Is it fair to say you don't know what caused15 this cowling to separate because you were not there?16 A. No.17 Q. It's not fair to say that?18 A. Oh, it's absolutely unfair to say it.19 Q. Was there other cracking of the fiberglass on20 this cowling other than on the left side?21 A. No.22 Q. I'll live with that. I think on your invoice23 that you spent 12 hours on December 20th at the fire24 scene or you billed for 12 hours?25 A. Okay.

Page 107

1 Q. Did you spend 12 hours at the scene?2 A. No. Some of that time would be drive time and3 some of it being just downtime, but it's not broke out.4 Q. When you first arrived at the scene on the5 20th, had other people already investigated this?6 A. Yes.7 Q. Okay. Can walking through a fire scene8 disturb evidence?9 A. Yes.

10 Q. Can walking through a fire scene destroy11 evidence?12 A. I don't think evidence can be destroyed.13 Matter can't be destroyed. So it can be altered, and14 then you've got to figure out the alteration. We go to15 fire scenes all the time that firefighters have sifted16 the debris out the window. They don't destroy it. You17 have to reconstruct.18 Q. So were unauthorized persons allowed to walk19 around this fire scene before you secured it on the20 20th?21 A. I can't answer anything before I was there,22 unauthorized or authorized.23 Q. What do you consider the fire scene?24 A. Well, it starts with an overall exterior view,25 ever how far out I need to go on any scene. On this

Page 108

1 one, I started with the outer perimeter of about, I'd2 say, 50 to 75 feet away from the building. The entire3 scene is potentially evidence.4 Q. How tall were the ceilings at this facility?5 A. The overhang was about 24 feet, and I think6 it's 1 and 9 pitch. I think max about 26 foot.7 Q. Okay. So on Exhibit 8 where you drew your8 general area of origin, do you know what the ceiling9 height there is?

10 A. It was 24 -- I'm pretty sure it's 24 foot,11 about 3 inches. And of course, it's on a 1 and 9,12 meaning every foot I think it rises 9 inches. So out13 here at the general area of origin, it's just above14 24 feet.15 Q. Okay. There were -- strike that.16 Were there any metal-halide lights at this17 facility?18 A. Yes.19 Q. What is a metal-halide light?20 A. I'm really not that familiar with what they21 are. I know they have time of warm-up for the gas to22 start giving illumination. And as far as after that, I23 would just defer to the electrical engineers to describe24 a halo light.25 Q. Okay. I'm handing you a green pen, and can




28 (Pages 109 to 112)

Page 109

1 you mark with simply Xs where the metal-halide lights2 are located on the -- like from B to C to D to the E3 aisles?4 A. I'm sorry. Say that again, the last part. B5 to C --6 Q. Well, all the way B through E.7 A. B 3?8 Q. B through E.9 A. B through E. Okay. Simplify it, at every

10 joist, there's a set of halide lights starting at11 25 feet. The next one goes 50 feet. And so if I'm at12 25 feet on Thornton 8, you'd have one. And then you had13 one near the area of origin. And then it goes on14 across. I can't --15 Q. Continue.16 A. I can't do that.17 Q. So every 25 feet we're going to have a light?18 A. It goes from 25 and 25 and then 50 for a space19 across there.20 Q. Okay. So on the C and E aisles, can you draw21 where the metal-halide lights would be?22 A. They would be the same, similar set-up. Okay.23 You would take this red line with an arrow on the lower24 portion of 8 demonstrating or -- yeah, demonstrating is25 a good word --

Page 110

1 Q. Okay.2 A. A conduit. So you would have a conduit that3 extends east to west -- I mean, west to east all the way4 across.5 Q. Okay.6 A. And in some -- and in a measurement of 25, 257 and then repeats 50, 50. And I do not know, sitting8 here today, how it stopped the 50s. It may have done9 25, 25 and 50s back this way --

10 Q. Okay.11 A. -- but there is a diagram that shows those.12 Q. Okay.13 A. That would be the electrical engineer's.14 Q. You've drawn a green line in the C aisle with,15 it looks like, four circles for lights. Is that right?16 A. In green.17 Q. In green?18 A. Yes, sir.19 Q. And then you've done that in the D aisle just20 with two lights, but we know those lights continue.21 A. Yes, they do.22 Q. And if you drew it for the E aisle, it would23 be similar to the C and D aisle?24 A. With one caveat. There is -- let me make25 sure. On the conduit that runs -- may I borrow -- well,

Page 111

1 I won't mark -- on the main aisle, on every joist that2 runs west to east on the main aisle, there is a halide3 light. So that might throw us off on our conversation.4 No, no that won't either because this is a junction5 line, I'll call it. But on every joist there's another6 one that I didn't draw in there. Let's say we have a7 joist, let's say, here. One foot from that joist in a8 northerly direction, there's another light. I can't --9 and there is -- exists a plat plans showing those, but

10 that's an electrical engineer's job.11 Q. So are you saying between the cells there is12 also an additional light?13 A. Everywhere on -- let's see. These are on 50s,14 aren't they? Yeah. Every 50 feet there's a joist that15 runs west to east. Now on the north side of that joist16 at the main aisle there's another halide light, which17 would put another one in this area here.18 Q. Let's draw it in green so it's clear.19 A. Yeah. All right. I'm going to call this the20 joist position, joist light. Okay. The rest are on21 junctions that run down the cell aisles.22 Q. So was there a joist light on the C and D23 cell?24 A. Every 50 feet.25 Q. Okay. So how wide are the cells?

Page 112

1 A. The cells themselves is not what I'm basing2 that on, and I would have to pull my plat plan that3 shows the typical joist column. At every column above4 there's a joist or a rafter, okay, running west to east.5 Every one of those, you can put a halide light. But6 this is not on a joist area. These are on just a7 junction running -- there's a junction box at the8 intersecting line on Exhibit 8 -- there's a junction box9 at the main aisle. Then the electrical conduit runs

10 west to east. But I just want to make sure you knew11 that there are other halide lights.12 Q. Right. And you've drawn one at your area of13 origin, too. Correct?14 A. Close proximity.15 Q. It's touching your blue line, isn't it?16 A. Close proximity, yes. All that blue line is17 close proximity.18 Q. Okay. How tall are the bales of paper in19 those cells on the D aisle?20 A. I've heard it -- it's according to how -- how21 the bundles or bales are received, from what -- what22 source. They make them smaller and larger. I've heard23 it described from 12 foot even up to 20, I believe, in24 some depositions. But generally, it seems like25 everybody's agreed that it's about 12 foot. They're




29 (Pages 113 to 116)

Page 113

1 stacking four and five high.2 Q. Okay.3 A. Excuse me. 12 to 16 foot is what I need to4 say.5 Q. Okay. The cells could be 12 to 16 feet high,6 the paper in the cells?7 A. That is correct, sir.8 Q. Okay. So were there bales of paper stored in9 the aisles that night?

10 A. In the aisles or in the cells?11 Q. In the D aisle, the C aisle, the E aisle.12 A. I cannot tell you except from the debris, it13 looked like that there may have been some in the aisles,14 as you described between D1, D2, the D aisle. There15 could have been some, or it could have fell over. And16 the reason I'm unsure of it, they were getting full of17 paper on that diversion.18 Q. Did you read any deposition testimony that19 suggested the aisles were, in fact, stored with paper?20 A. That's what I'm talking about. There was21 indications that it's possible that they were so full22 that they were to overflowing during this diversion, and23 it wouldn't surprise me at all.24 Q. Okay. Did the storage on January 7, 2010,25 meet storage standards, if you know?

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1 MR. ROGERS: Objection. Form.2 A. That -- that wouldn't be something I could3 address, sir. I'm not familiar with that.4 Q. (BY MR. MARICLE) If your client had that5 document, would you expect your client to give it to6 you?7 MR. ROGERS: Objection. Form.8 A. I would expect he would give it to someone9 that's going to use it, and that's not -- I am not a

10 warehouseman or fire prevention expert or the prevention11 end of it. In other words, how to store paper is not --12 I would want someone else on that job.13 Q. (BY MR. MARICLE) How many arcs did you find14 at the fire scene?15 A. Personally -- well, I did find arcs inside of16 the Hyster 80 on the battery cable and some of the17 electrical ends of it. And those were identified.18 Whether I, quote, found them or the electrical engineer19 points them out, the arc in the structural wiring was20 found by the electrical engineer and pointed out to me.21 There was a scissor type apparatus that raises a lift22 truck kind of a thing. And it only had a capacity of23 two people at a time. I opted for the electrical24 engineer to go up there and look at that. He found it.25 Q. Do you know how many circuits control those

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1 metal-halide lights?2 A. There was a breaker for -- at the north end3 that controlled that north to south conduit that went4 down the main aisle. One breaker controlled that line5 of circuitry with all the feeds off of the aisles. They6 were controlled by one breaker, according to the7 electrical engineer.8 Q. Okay. So that's something Forest Smith did,9 not you?

10 A. Yes.11 Q. Okay. Do you know how many breakers tripped?12 A. I do not know, no.13 Q. Okay. Did you photograph that?14 A. Yes, I photographed it, but as far as studying15 it and analyzing it, I left it all up to him.16 Q. Yeah. And what conclusions did you draw from17 the arc events that you found?18 A. The arcing event, the two -- and I'm going to19 break it up. The structural further identified the20 general area of origin, where the fire had progressed21 from floor level, striking or heat energizing the metal22 conduit, deteriorating the insulation, causing that arc.23 Now you get into the other inside of the24 Hyster. There was -- I would call it a major short on25 the battery cable. And I saw some what I would consider

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1 melting, short, arc or damage, failure type attitude of2 that copper wire. I observed those.3 Q. What is alloying?4 A. Alloying?5 Q. Yes.6 A. By heating metals is one way that I know of.7 You heat two metals of dissimilar metals and allow them8 to mix, you've got an alloy.9 Q. Okay. Any of the electrical activity that you

10 discovered at the fire scene, could you determine if11 that was caused by alloying or arcing?12 A. By arcing, yes. Alloying, I didn't -- I13 didn't in particular see anything that -- that triggered14 me to see a mixing of, let's say, aluminum and copper.15 It would be the first to come into my mind because the16 melt temperature of aluminum and copper are dissimilar17 and found in most engines, but I didn't see nothing like18 that.19 Q. Okay. Can you rule out alloying just with the20 naked eye?21 A. Rule it out as occurring?22 Q. Yes.23 A. Is that what you're saying?24 That would go to the depth or the extent of25 the alloying. If I've just got miniscule, I may have to




30 (Pages 117 to 120)

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1 send it to an SEM, a scanning electron microscope, and2 have it evaluated, but that would be metallurgy. But3 you can tell -- that's a dumb statement I was fixing to4 make. Go ahead. You can tell if you can tell. The5 rules are rules. But, no, I didn't see anything that6 would make me say, look, maybe we need an SEM run on7 this.8 Q. Okay. So it's your testimony that you can9 just look at it with the naked eye and tell?

10 A. I could make a determination if I want to make11 a recommendation, and that's the same with the12 electrical engineer, and I don't recall anybody13 mentioning the fact that they wanted that done on any14 team.15 Q. As part of your investigative process, did you16 speak with any employees of Tango who were not present17 at the time of the fire?18 A. This fire here, not that pad fire?19 Q. Correct.20 A. I talked to Brasco, if you'll remember. As21 far as talking to anybody else at Tango -- and I may not22 know who these people worked for. I did have23 conversations, just matter of fact type thing, with Rick24 Lawson, I met. I probably met Jeff Jones and Gates25 both. But as far as an interview, no.

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1 Q. And did you interview or speak with anyone2 from IP who may have gone out to the fire scene that3 night?4 A. And again, I might not recognize who people5 worked for and I may have, but I didn't interview anyone6 as to the facts of the fire or anything like that.7 Q. Okay. Would it be fair to say if you would8 have spoken with anyone from Tango or IP or any of the9 truck drivers, that would have been reflected in your

10 file, in your notes or your report?11 A. If I would have found something of interest as12 to the area of origin, cause of this fire, yes, sir.13 Q. Well, if you didn't talk to them, you don't14 know if you found anything?15 A. That's true. And I made comment that I don't16 know who these people were, conversations, but I do see17 them as witnesses to the fire. And that's my job, is I18 want witnesses to the fire to where I can gather some19 data that might lead to a fact and an area of origin.20 Q. Yeah. Why is it important in the21 investigation of the fire origin to find the first or22 early witnesses to a fire?23 A. They can be -- early witnesses can be very24 helpful. In this case, I believe he is certainly25 helpful. It's important -- in some cases witnesses --

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1 human errors and fault, they'll lead you astray. But if2 the physical facts and the burn patterns agree with the3 witness, then you can count that as dependable. But4 early on you want that guy because he saw the fire5 nearest ignition. And the phase of the fire -- fire has6 a behavior. And you can determine by what that first7 witness -- if you find him to be dependable based on8 what you find on the physical facts, then you can make9 assumptions based on that conversation. It's important

10 if he's got good information.11 Q. Okay. Did you ever request through Mr. Hart12 or Mr. Rogers that they make available to you the truck13 drivers who may have been shuttling in loads that night?14 A. No, sir, I did not.15 Q. So there could be a witness out there in one16 of the truck drivers, yet we don't know because we17 haven't spoken to them. Correct?18 A. Possibility. I can't say one way or the19 other.20 Q. Okay. So we don't know if there's somebody21 else who could have seen something before Greg Charles.22 Correct?23 A. That could be correct. It don't negate what24 Greg Charles said, but could be correct.25 Q. Going back to your area of origin where you

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1 find this hub, do you know how much fire it would take2 or how much fire would have been present for that hub to3 have come off?4 A. I can't quantify it.5 Q. Okay. You would agree that that hub would6 have to come off before it was moved. Right?7 A. I do.8 Q. Okay. So who was the person who moved the9 forklift that night?

10 A. Cleo Wilson.11 Q. Okay. Cleo, the person you didn't talk to.12 Right?13 A. That's correct.14 Q. Okay. Do you know if the tires of that lift15 truck were on fire?16 A. They caught on fire subsequent to the fire and17 as the fire progressed. I don't think -- in the line of18 questioning we're at, I don't think that would cause the19 hub to stay on or fall off.20 Q. At the time he moved it?21 A. I don't -- that question, I'm sorry?22 Q. Well, I didn't understand your answer.23 A. It fell off -- it could have fell off while he24 was backing up. I doubt it. Most probably it fell off25 during the progression of the fire. And there was a




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1 heat stress to the metal or heat and air -- or heated2 air causing the cap to come off. But it came off before3 the truck left that area.4 Q. If that's the hub --5 A. Oh, it is.6 Q. Okay.7 A. Yes, sir.8 Q. Okay. That's your opinion, it is?9 A. Yes, it is.

10 Q. Okay. But, again, do you know how much fire11 it would take for that to come off?12 A. No, I can't quantify it in any temperature13 range or anything else. I might can tell you a14 sequence.15 Q. Okay. Let me ask you this first. Do you have16 any witness who says that hub was impacted by fire17 before it was moved?18 A. No. You're talking about human witness?19 Q. Yeah.20 A. No, I don't.21 Q. Okay. It's your opinion that the fire22 originates within the engine compartment. Correct?23 A. Yes.24 Q. Okay. The hub is outside of the engine25 compartment. Correct?

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1 A. Yes.2 Q. Okay. So how did the fire grow and spread3 such that it impacted the hub, causing it to fall off4 before Cleo moved that?5 A. Excuse me just a second. On the day of the6 fire, according to the nearest weather report area,7 Shreveport -- I'm sorry.8 Q. What are we looking at?9 A. Okay. On page 2 of Thornton 4, weather report

10 checked at Shreveport, Louisiana. The wind speed,11 excuse me, at 16.9 miles per hour with gusts up to12 26 miles an hour. Now you asked the question how did13 that fire spread from the engine compartment and cause14 the hub to fall off prior to Cleo Wilson moving it? Am15 I correct? That's the right question?16 With that wind, with the available combustible17 materials and the time it took for Gregory Charles to18 come from the area of the south end loading docks, the19 fire was from a glow to coming out a crack where the20 cowling seal -- the way he described it, where he put21 the fire extinguishing agent, a dry powder, to try to22 put out the fire. Number one, he tried to put it out in23 a localized area.24 The next thing he tells you is then he went to25 the mast to put out the fire. The mast is forward to

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1 the engine compartment and hydraulic lines are out2 there. And he stated that -- consistently he states3 that he would try to put out the fire there and it4 flashed back.5 My opinion is by the time that this fire6 became from a fire inside the engine compartment, a7 compartmentalized fire protected from this ambient wind,8 this 16 to 26 miles an hour wind coming from the north9 is a compartmentalized fire. At that point in time it

10 got down into the loose paper product, whether it was11 powder or shreds, and it was -- probably put some sort12 of a wind barrier because he pulled it in and he had to13 raise his lifts up to drive into the empty -- empty cell14 area of D1, I think. Excuse me.15 By the time he goes and starts putting the16 fire out at the cowling or -- excuse me -- the engine17 compartment, trying to put it into what he calls a crack18 between the frame and the cowling, then the fire is19 coming to the hydraulic system. That empties hydraulic20 fluid. You've got a fire that's fanned by plenty of21 oxygen. It already has plenty of combustible fuel load22 in all the paper that's out there. Pushing it through23 that aisle is the simplest, logical answer. That's why24 it accelerated. And I use that word oxygen and25 accelerated and air. I don't think the hydraulic fluid

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1 had anything to do with anything other than the spread2 that you've asked me about.3 Q. You indicated the hydraulic lines. Do you4 think those hydraulic lines had been compromised by the5 time they are trying to extinguish the fire?6 A. Yes, I absolutely do.7 Q. What's your basis of that?8 A. Because that's where he went to put the fire9 out next, and he tried to put it out and it flashed back

10 on him. Paper won't flash back.11 Q. I mean, you're aware that they had changed12 hydraulic lines the night before and they left all of13 that fluid and the paper at that D aisle?14 MR. ROGERS: Objection. Form.15 A. I'm aware that they changed out hydraulic16 lines. If it was at that specific area or not, I don't17 have any information to firm that up. But if they did18 have that hydraulic fluid and it was already on the19 floor and with that 16 mile an hour wind -- we'll leave20 the 26 alone a minute -- with that fire being fanned now21 by the air -- and if it was the accumulation of22 hydraulic fluid from changing out the lines, which would23 be whatever amount's in the line, and that would be a24 forklift man -- Robert Friedemann on our team can answer25 that better than me. How much would spill while you're




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1 changing out a line is not inconsistent with fanning the2 fire through the paper into that combustible fuel load.3 But we do know that the hydraulic lines did get4 compromised by the fire. And that's based on what5 Gregory Charles says and the burn damage to the6 hydraulic lines itself.7 Q. (BY MR. MARICLE) Well, the fire burned for8 days.9 A. Okay.

10 Q. Okay.11 A. Yes, sir.12 Q. So my question is: What's your basis that the13 hydraulic lines on this lift truck were compromised by14 the time Greg is trying to spray it with a fire15 extinguisher?16 A. Excellent. If Greg -- excuse me -- not17 Greg -- Cleo Wilson had left that lift truck at my18 general area of origin, knowing that my specific area of19 origin is under the hood and near that exhaust manifold20 that was not protected in any manner, if he had left21 that lift truck sitting in the D aisle at my general22 area of origin, we would have lost that lift truck23 because we had plenty of combustible fuel around it to24 take it out. I know that the hydraulic lines got25 damaged in the aisle at the general area of origin

Page 126

1 because they're damaged. You back that truck up like2 Leo Wilson did and into the main aisle. You look at3 that truck, superficial burning with the exception of4 the hydraulic lines that control that mast. So it had5 to happen like I opined, I believe is the word -- like6 my opinion would say, is that it happened over there,7 but it didn't happen sitting over here in the main aisle8 because that truck, the wind was protecting it. It got9 some superficial heat, but it didn't get the heat that

10 it would have had if we had had an opposite wind.11 Q. Is it your testimony that the hydraulic lines12 were compromised before he moved it?13 A. They were becoming compromised. What extent,14 I don't know.15 Q. What's your --16 A. The -- yes.17 Q. What's your basis that they're becoming18 compromised? Wouldn't you have to have some data, some19 facts?20 A. We have a man that is a trained firefighter by21 the Navy, Gregory Charles, who points that extinguisher22 at two locations, one at the cowling and then he goes23 forward. This is normal and natural fire travel if I've24 ever seen it for the wind to blow it from that area. It25 wouldn't have blowed it back under that cowling.

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1 So how do I base the hydraulic lines were2 compromised? Gregory Charles knows enough about fire3 fighting from his Navy training that he's got a B fire.4 He needs a B extinguisher. He needs -- he had a dry5 powder. I don't know what he was saying there. But the6 lines became compromised, and they were flashing back on7 him. I don't think just a spill on the floor8 quantifying it is out of the realm of my -- I won't9 reach for it. But it's out there ever how much anybody

10 wants to spill on that floor is fine. But Gregory11 Charles has a fire that he first goes to and a12 firefighter goes to put out the fire at its worst. And13 it spread later. The second effort was at the front of14 the mast area.15 Q. Where was Greg Charles' first effort to16 extinguish the fire? Where was the forklift truck?17 A. At the crack between the cowling that we've18 been looking at in those photographs.19 Q. Okay. Where was the lift truck at that point,20 though?21 A. It was sitting in what we call the general22 area of origin under the arc area.23 Q. Okay. And do you know how many fire24 extinguishers Greg Charles attempted or used while it25 was in the D aisle?

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1 A. I count them up. E1 is the forklift, 22 through 8 is the fire extinguishers, and 9 is the3 cowling. So there has to be seven. Now who used them,4 I don't know. He had two at the first.5 MR. MARICLE: Okay. Object.6 Nonresponsive.7 Q. (BY MR. MARICLE) My question was simply: Do8 you know how many Greg used while it's still sitting in9 the D aisle? If you don't know, just tell me you don't

10 know.11 A. The best estimate is no, I don't know. Go12 ahead.13 Q. You indicated weather data. You give a range14 in your report. How come you didn't get the specific15 weather data for the time of the fire?16 A. That is for the time of the fire, and you17 check it through the nearest weather reporting station.18 Q. Where's the nearest weather reporting station?19 A. Shreveport, Louisiana.20 Q. Are you positive?21 A. Best I could come up with when I did the22 Google search.23 Q. Okay.24 A. Yeah.25 Q. So what direction was the wind out at, I don't




33 (Pages 129 to 132)

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1 know, the time of the fire on January 7th?2 A. Mostly from the north.3 Q. Okay. So is the D aisle protected by north4 wind?5 MR. ROGERS: Objection. Form.6 A. Is it protected by --7 Q. (BY MR. MARICLE) Protected.8 A. -- a north wind or from it? What are we9 saying?

10 Q. Is it protected by a north wind?11 MR. ROGERS: Objection. Form.12 Q. If you're in the D aisle, do you get a north13 wind blowing on you?14 MR. ROGERS: Objection. Form.15 MR. MARICLE: It seemed like a good16 question, Bruce.17 MR. ROGERS: It's vague. Where you are18 standing in the aisle determines whether -- could19 determine whether you were being -- whether the wind was20 blowing on you from whatever direction.21 A. My question to you: Do we mean would the22 D aisle protect you from the north wind? That23 phraseology I can understand, but the wind don't protect24 the D aisle that I can see.25 Q. (BY MR. MARICLE) Why?

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1 A. I think the D aisle protects you from the2 wind, but I'm just not understanding the question.3 Q. Okay. The D aisle runs east and west. Would4 you agree with me?5 A. I do.6 Q. Okay.7 MR. ROGERS: Can we take a break?8 MR. MARICLE: Sure.9 THE VIDEOGRAPHER: We are going off the

10 record. The time is 2:37.11 (Break from 2:37 p.m. to 2:52 p.m.)12 THE VIDEOGRAPHER: We are on the record.13 The time is 2:52.14 Q. (BY MR. MARICLE) Mr. Thornton, we're back on.15 And prior to our break, you were talking about the fact16 that Greg Charles used a fire extinguisher. And I'm17 going to hand you again Exhibit 14 with a green marker.18 And you said that at some point he took that fire19 extinguisher and discharged it into a crack. Correct?20 A. Yes, I did.21 Q. Okay. So I would like for you to draw simply22 a circle around where he discharged that fire23 extinguisher into the crack that you referred to.24 A. In Exhibit 14, the crack would be, in my25 opinion, what he was talking about in the circle that

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1 I'll just make a smaller one at the area where the2 cowling would rest on the metal frame.3 Q. Okay. You said in your opinion. Did he tell4 you or show you where he pointed it?5 A. He pointed at the area generally, and that's6 the only crack that I know of and the most logical area.7 Q. Okay. But it sounds like from your answer8 we're not completely sure because you didn't walk up9 there with Greg and say show me where you pointed it.

10 A. He pointed at the general area.11 Q. Okay. And you said that's the most logical,12 but that doesn't indicate to me that that's the general13 area where he pointed it.14 A. That's where I perceived that he was talking15 about.16 Q. That's your understanding. Is that fair?17 A. That's my opinion.18 Q. That's your opinion or your understanding?19 A. That's my opinion of where he was pointing,20 sir.21 Q. And when Greg Charles was telling you this,22 what date is this we're talking? Is this on January23 20th or --24 A. 20th is the day that I talked to Greg Charles.25 Q. Okay. And then where were you standing when

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1 you're having this discussion?2 A. I believe we were in the office and then we3 went to the slab --4 Q. Okay.5 A. -- out there where the Hyster 80 was.6 Q. Did you go to the lift truck?7 A. Yes.8 Q. Okay. Do you have a photo of Greg pointing to9 where he would have discharged it?

10 A. No.11 Q. Okay. All of the photographs that's been12 produced as part of your file, are these photographs13 that you took?14 A. I either took them or had them took, sir.15 Q. Would you have a -- any kind of record or16 indication of what photos you took versus somebody else?17 A. No.18 Q. There's no way to determine that?19 A. I don't think there would be.20 Q. Okay. Were there fire extinguishers in the D21 aisle?22 A. In the D aisle, yes --23 Q. Okay.24 A. -- on the columns.25 Q. Were any of the fire extinguishers from within




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1 the D aisle used to extinguish this fire or an attempt2 to extinguish the fire?3 A. That wouldn't be my opinion, no, sir.4 Q. That they were not used?5 A. It would be my opinion that they were not6 used.7 Q. Okay. So the ones in the D aisle remained8 there?9 A. They would have been burned, yes, in place.

10 Q. Where they're normally stored. Right?11 A. On the columns, yes.12 Q. Right.13 Okay. We talked about wind speed. And do we14 have a wind speed for the time of the fire or only a15 range?16 A. I only have a range and general area.17 Q. Okay. Do you have an opinion that the wind18 speed within the D aisle would be less than that19 recorded or obtained from the weather service?20 A. I would just have to go on the best evidence I21 have, and the weather report is in Shreveport and the22 general locale.23 Q. Okay. So that didn't answer my question,24 though. Do you think the wind speed in the aisle would25 be less than what you obtained from the weather source?

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1 A. I couldn't give you that opinion one way or2 the other.3 Q. If the wind's out of the north, you don't4 think the wind speed in the D aisle would be less, kind5 of a common sense thing?6 A. Any obstruction could slow it down, but I7 don't have an opinion that I would state here.8 Q. The fact that you believe the hydraulic lines9 were compromised, how come that does not appear in your

10 report?11 A. I -- I can't tell you why something's not in12 my report.13 Q. Is it important that the hydraulic lines were14 compromised?15 A. Important? And what is important? Tell me16 that, please.17 Q. Let me rephrase it.18 A. Please.19 Q. Is it important to any of your opinions as to20 origin or cause that these hydraulic lines were, in21 fact, compromised, in your opinion?22 A. The fire damage is documented, and whether23 it's important that a specific damage to the hydraulic24 line or the combustible fuel load of the paper or this25 reported spill one way or the other, it wouldn't change

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1 the area of origin.2 Q. But you're using the information that the3 hydraulic lines were, in fact, compromised as the fact4 that there is sufficient fire load at that lift truck5 before Greg Charles -- I'm sorry -- before Cleo Wilson6 moves it. Correct?7 MR. ROGERS: Objection. Form.8 A. It's a combination --9 THE WITNESS: Excuse me.

10 A. It's a combination of the available fuel load,11 which is the paper, that reported spill and/or or or/and12 the leakage from the hydraulic lines.13 Q. (BY MR. MARICLE) Is it your only basis that14 the hydraulic lines were compromised while they're15 trying to move it the fact that Greg Charles had16 difficulty extinguishing the fire?17 A. That and the damage to the lift truck doesn't18 indicate a continuing fire out in the north/south aisle.19 If you lost the fuel and the burn damage that's evident20 on those lift -- excuse me -- those hydraulic lines, you21 should have had the oil there in the main aisle. And it22 makes me to believe that it was leaking -- to what23 extent, I couldn't ever tell you -- at that general area24 of origin. If it didn't happen that way, there's still25 plenty of combustible fuel load.

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1 Q. Would you expect to find the fluid present2 after the fire?3 A. Where are we talking about?4 Q. Well, you said you didn't see evidence of the5 hydraulic fluid where it ultimately came to rest, and my6 question is would you expect to find fluid?7 A. It is possible either way. We didn't have a8 consuming fire there, obviously, because the lift truck9 was in a protected area.

10 Q. Protected from?11 A. Exposure to heat, fire and from that ensuing12 fire. The fire was being pushed by the wind away from13 that lift truck.14 Q. The wind was out of the north. Right?15 A. Yes.16 Q. Okay. Which is kind of the front left corner17 of the lift truck. Right?18 MR. ROGERS: Objection. Form.19 A. That's too vague for me. No, the lift truck20 moves on me during the fire scene. The wind was21 coming -- and I can show you on Thornton 8 -- from the22 north at some varying degree, northeasterly, whatever it23 was. When the wind is traveling across that covered24 area, it can move inward east, westbound lanes. So --25 Q. (BY MR. MARICLE) You just don't know how much




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1 it moves in; you don't know the speed with which it2 moves in. Correct?3 A. That's why I used that range. Yes, you're4 right.5 Q. Well, the range is what you get from the6 weather service.7 A. Right.8 Q. You don't deviate from that and indicate it's9 less within the aisle?

10 A. Deviate is -- I don't differentiate from the11 east, west aisle. I gave a general statement. And we12 had a northerly wind. It was strong. People talk about13 the wind was blowing and it was very cold. I don't14 differentiate except that I do know how the wind comes15 down that aisle in a chimney effect.16 Q. Well, what effect does a chimney effect cause?17 A. A chimney effect just by the words tells us18 it's a fireplace I'm referring to, and a chimney sucks19 the wind out of the room causing a draft, causing the20 smoke to leave the house and a good portion of your21 heat. A chimney effect, a drafting down that aisle22 occurs.23 Q. Okay. Can you make a calculation for me? If24 I give you wind speed of 10 miles an hour, can you25 calculate what the chimney effect is within the aisle?

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1 A. No.2 Q. So you're assuming there's a chimney effect,3 because you can't do the calculation, can you?4 MR. ROGERS: Objection. Form.5 A. If I can't -- if I can't calculate it, I can't6 tell that wind moves fire? That's not -- that's not in7 the realm of my thinking. I can tell you that wind8 affects fires and it does draft, over my years of9 experience. Calculations indicates can you come out

10 with some numbers. I can't do it.11 Q. (BY MR. MARICLE) It's your testimony that12 these hydraulic lines were impacted by the fire before13 it's moved. If that is true, how come other14 combustibles in that area were not impacted?15 A. I don't understand. Please --16 Q. Are there any other lines, electric lines that17 were not damaged as a result of this fire on this lift18 truck?19 A. Okay. The way I understand your question, was20 there other electrical lines not affected by the fire in21 the lift truck?22 Q. Correct.23 MR. ROGERS: Objection. Form.24 A. Some of them were; some of them weren't. But25 those that were exposed to fire at the time it was

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1 energized shows some melting, short arc or failure type2 damage. But, yes, the heat stress hits a portion of3 electrical wiring, let's suppose, where it welded to4 some nut or bolt or some sort of metal in there, and you5 have a direct short. Now everything else is6 de-energized. So your assumption means that it wouldn't7 be affected. It was affected.8 Q. (BY MR. MARICLE) I didn't ask you if it9 arced. I'm just saying, is there any evidence that it

10 wasn't damaged?11 A. I don't know how to answer your question.12 Q. Did you have other hydraulic lines that had13 not been compromised?14 A. The hydraulic lines that I'm talking about15 that are causing the mast to operate properly, and I'm16 sure some portion of them were, quote, undamaged by the17 human eye, but they were subjected to heat to some18 degree. Now where they got subjected and the19 possibility of them being compromised at a lower area is20 more appropriate because the fire is coming from out of21 the engine compartment and into an area where the mast22 is, and the wind definitely would have drafted that fire23 west to east.24 Q. During the incipient stages of the fire, where25 is the greatest heat at that lift truck?

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1 A. Say that again, please.2 Q. Yeah. During the early stages of the fire,3 where is the greatest exposure to the lift truck from4 that fire? Is it low or is it high?5 A. At the ignition time?6 Q. Early stages.7 A. That's ignition time to me. Would I -- would8 we be talking about the same thing?9 Q. No. I mean, it's going to be post-origination

10 or post-ignition. Okay. So I'm just saying early11 stages.12 A. From the time of ignition, there's heat13 production.14 Q. Okay.15 A. Okay? And the target fuel is in an16 endothermic mode. Endo meaning receiving thermic heat.17 Okay. Once it comes to a fire and becomes an exothermic18 reaction, there's heat production. And I think that's19 what you're asking. Where it starts, it's going to be20 exposed and cause damage and you get burn patterns.21 Q. The hydraulic lines that you said were22 compromised, can you describe where that compromise was23 on the lift truck?24 A. Not especially. I believe it would have25 occurred at the lower area, whether it was at that




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1 general area of origin or when they backed it out or as2 they're backing it out, but at the lower edges where I3 believe the first exposure to heat sufficient to4 compromise them.5 Q. And when you say the lower area, can you tell6 me if we're talking, you know, 2 inches from the ground7 or 6 inches or 12 inches from the ground?8 A. No.9 Q. You don't know?

10 A. I can't tell you, no.11 Q. Are there other hydraulic lines in that area12 that are not damaged?13 A. I think we went over that. Are there other14 hydraulic lines? I'm talking about hydraulic lines at15 the front mast area that lift that squeezer.16 Now are they undamaged? We covered that.17 To what degree? I didn't quantify it. I18 can't tell you exactly where the, quote, leakage19 occurred. I didn't quantify that.20 Q. Okay. Do you know what fire growth and spread21 is?22 A. I know what I think you're talking about.23 Q. Okay.24 A. Would you explain your question?25 Q. No. Let me get your understanding of fire

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1 growth and spread.2 A. Well, fire growth, that fire triangle of heat,3 fuel and oxygen, with this chemical reaction that's4 recurring causing the fire to advance. That's growth.5 Now spread is, to me, avenue of spread issues,6 of how did the fire get from this portion of the under7 hood engine compartment to completely destroy or almost8 near destroying the contents of this building and doing9 the damage that we saw.

10 That's fire growth and spread. And that's an11 avenue of spread. The fire growth is from underneath12 the engine compartment. Somewhere on some portion of13 that exhaust manifold is the competent heat for ignition14 of this ordinary combustible, paper.15 Spread, as it sat there and at a point in time16 that I cannot tell you, the fire spread to the paper17 below, causing that glow. The fire spread due to the18 numerous effects, and one of them being the wind.19 Combustible fuel load was no problem. It doesn't make20 any difference if hydraulic fluid was never there.21 You're going to get this same damage from just the22 paper.23 Q. With regards to your area of origin, what24 evidence, actual physical evidence do you have that25 there was paper within the engine compartment?

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1 A. The studies that the manufacturer has done2 indicates, proves, that paper caught on the exhaust3 system can cause fires if it's unprotected. That4 ordinary combustible will catch on fire.5 Q. Okay.6 A. Physical evidence that we have, we've talked7 over and over on that cowling -- portion of the cowling8 where we have localized burn damage that fire9 investigators would determine that this is an area of

10 heat generation early on in the fire. Once they moved11 it, the fire spread in growth, was now subject to no12 restrictions. Had plenty of combustible fuel, whether13 it was just the paper, and plenty of oxygen in the air.14 Q. I'll rephrase my question.15 Okay. What evidence do you have within your16 report and your file that's present here today that17 there was paper inside that engine compartment? And18 don't refer to the manufacturer's study because I'm19 actually limiting you to your report, your file, and20 that's the data you're going to testify to.21 A. The data --22 MR. ROGERS: Objection. Form.23 A. The data that I see that's in that report24 there is that we have localized fire damage on the25 cowling of the Hyster 80, the subject of this fire, that

Page 144

1 could not have been formed without a combustible fuel2 load that was abnormal to the engine compartment of this3 highly compartmentalized fire. There is no other reason4 for that fire to have caused that damage to that5 fiberglass when it's away from -- totally away from the6 combustible fuel load that was raging. There's no other7 explanation. Had to have combustibles.8 Q. (BY MR. MARICLE) Have you ever looked at heat9 release rates of products?

10 A. Say that again.11 Q. Have you ever looked at heat release rates of12 product?13 A. I'm very sorry. I'm not understanding --14 Q. Do you know what a heat release rate is?15 A. Heat release rate. I couldn't understand you,16 sir.17 Now heat release rate is governed by these18 things that we've been talking about.19 Q. Which is?20 A. The compartmentalized fire, the size of the21 particles that are exposed to the heat, how they're22 going to take on heat. For the release heat, and we23 talked about briefly exothermic and endothermic.24 Before you can have a heat release from that engine as25 normal -- it's releasing heat. The heat release rate




37 (Pages 145 to 148)

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1 now attacks the combustible fuel load until it is no2 longer just receiving heat; the heat is being released3 in an exothermic reaction, all governed by availability4 of heat, fuel and oxygen and a continuing source.5 Q. Do you know how much fuel would be present6 within the engine compartment that would cause the7 damage you see on the cowling that you're indicating is8 from heat from underneath that?9 A. Anybody can theorize that they do know, but

10 they'd have to know the configuration and the exact11 placement and how that combustible fuel load fell away.12 So the answer is nobody can do that. They can speculate13 and they can theorize and they can build models, but you14 can't tell -- you can't tell how much was in there.15 Q. Is it important to know where the fuel is16 within the engine compartment?17 A. What fuel are we talking about? Normal --18 normal --19 Q. Fuel is fuel.20 A. Excuse me.21 MR. ROGERS: Objection. Form.22 A. Normal appliances may have -- like insulation23 is a fuel. Are we talking about the fuel that I believe24 caused this fire, the combustible fuel load of paper and25 loose debris, or what are we asking?

Page 146

1 Q. (BY MR. MARICLE) Is that your opinion?2 A. I don't know what the question is.3 Q. Is it your opinion that paper caused this fire4 inside the engine compartment?5 A. Paper goods in some form, yes.6 Q. Okay. And I'm simply asking: What's your7 evidence we have paper inside that engine compartment?8 A. Number one, you had a fire, and you had to9 have a combustible fuel load that is abnormal to that

10 localized area. There's nothing in that area that would11 produce the continuing heat that caused that damage.12 Q. Are you finished?13 A. You can't find nothing else, so there's14 nothing else to say.15 Q. So do you have any quantification of how much16 paper would have been in that engine compartment?17 A. I believe somebody that would quantify18 something like that would quantify anything, and no.19 Q. So you can't quantify it?20 A. Oh, I wouldn't believe anybody can unless you21 take it out and measure it. You can't do it. You can22 speculate and people will do that, but, no, I won't.23 MR. MARICLE: How much time do you have24 left on the tape?25 THE VIDEOGRAPHER: We have ten minutes.

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1 MR. MARICLE: Okay.2 Q. (BY MR. MARICLE) Have you ever looked at3 other lift trucks to see in a similar type environment4 whether or not there is any fuel accumulated?5 A. I've had an instance where I worked a long6 time ago a lift truck that was at the area of origin,7 the cause of the fire. That's the limitation.8 But on the question, have I looked at any9 other that had a combustible fuel load, if I saw 15 that

10 did, would it be normal under the hood of that engine11 compartment? There's nothing normal to that area that12 would cause that damage.13 Q. I know that these Tango employees had a14 preshift and a postshift checklist. Do you know that,15 too?16 A. Yes, sir.17 Q. Okay. You don't have that checklist in your18 file, do you?19 A. No, sir.20 Q. Okay. Do you know why they have a checklist?21 A. The same reason anybody would have a22 checklist, is to cause some uniform examination.23 Q. Okay. Do you know what they're supposed to do24 with that checklist?25 A. They take it, check the -- the areas of

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1 interest shown in that form and things that they've been2 trained to do, check it off, sign it, put it in a box.3 Q. Okay. Do you know specifically what they do4 with regards to the lift truck?5 A. I can enumerate what my knowledge is on it.6 Q. Okay. Is that knowledge contained within your7 file?8 A. No. It's based on what they told me.9 Q. Who is "they"?

10 A. Gregory Charles, and I read from his11 deposition, read from the deposition of Cleo Wilson.12 Your standard checklist, sounded like to me.13 Q. Okay. So can you describe for me the14 mechanism of how paper would get into the engine15 compartment?16 A. And we're talking about on a lift truck such17 as this one?18 Q. How about this lift truck --19 A. Very good.20 Q. -- as in Exhibit 14.21 A. It's my understanding that there is a paper22 application kit that you can have on a unit like this.23 One of the things that you would be seeing there in that24 item -- I think we're looking at 14 -- one of the things25 you would see -- and you see it on the Hyster 90 that's




38 (Pages 149 to 152)

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1 out there -- is openings, screened openings, and it's2 used to break the vacuum that's down under. As that3 radiator is -- fan is turning, it's causing a vacuum,4 and you're vacuuming the floor. You break that vacuum5 by putting vents on either side of the cowling. And you6 find it out there on that Hyster 90 that was down on the7 south end.8 The method is simply the driving of the truck,9 the wind being created by the radiator fan and the

10 movement of the unit, lifting the loose paper, debris,11 shreds, powder, whatever it is, up into that engine12 compartment. And I believe there's -- I left out a13 screen on the radiator -- to assist in cleaning that14 radiator out. The other thing is the heat shield that15 can be put on the hot parts of the exhaust manifold for16 protecting the -- they know that it's going to get some17 dust and particles up there. So they blow it out at the18 shift to keep it off. It gets up in there whether19 you've got the heat shield, the pack or whatever. I20 guess they get some. But the way it gets up there is by21 the normal operating conditions of the lift truck.22 Q. Do you know if the wind that night would23 reduce the effect of any draft created by the radiator?24 A. Well, the radiator is constant. The radiator25 don't do anything. The fan is what we're talking about,

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1 I believe. The fan is a constant, whether you've got2 wind or don't have wind. So it wouldn't affect it any.3 It may cause the paper to be more agitated and easier to4 vacuum into the engine compartment. That's the best5 answer I can think of.6 Q. On the seat that's depicted in 14, you7 indicated on the backside of the seat there's a lot of8 oxidation. Correct?9 A. There's a difference of oxidation, yes.

10 Q. Okay. And so -- and it's your opinion that11 this oxidation is caused by heat?12 A. Yes.13 Q. And that heat came from the engine14 compartment. Correct?15 A. Yes.16 Q. Okay. But you just can't tell me what17 temperature is going to cause that oxidation? Is it18 100 degrees? Is it 500 degrees? Is it X? You can't19 tell me?20 A. That could be found out, what temperature --21 looking for differences for comparison of the left hand,22 the right hand, for burn patterns, whether that rust23 inhibitor preventive paint or whatever they put on the24 back of that seat is uniform. Therefore, if I've got25 heat stress in the middle two areas of my finger, as I'm

Page 151

1 showing you, indicates that that heat is coming out of2 the engine compartment. As far as quantifying the heat,3 I wouldn't -- I wouldn't see the importance of it.4 Q. Were there any metals within the engine5 compartment that melted?6 A. Yes.7 Q. What metals?8 A. The bracket for an alternator, as I stated9 earlier, and that aluminum alloy probably. That

10 alternator melted to some degree up forward of the11 engine compartment. Excuse me, I said forward. Toward12 the radiator area of the engine compartment.13 Q. What temperature does aluminum melt?14 A. Generally accepted at -- according to what15 book you read. I'll use 1102 degrees, somewhere,16 1200 degrees Fahrenheit.17 Q. Okay. And it's your testimony that the18 bracket that holds the alternator was aluminum and part19 of that had started to melt?20 A. Yeah. And again, I stress it's aluminum21 alloy, and the generally accepted melt temperature for22 alluminum is 1102 or -- yeah, 1102. You can't use that23 except for, again, differences. It didn't melt here, so24 it melted there. But I had melt, so I got in the range25 of 1,000 to 1,100 to 1,200 degrees, whatever that alloy

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1 melts at.2 Q. Yeah, but we just don't know at what point3 during the fire that actually occurred, do we?4 A. No. It occurred.5 Q. With regards to the oxidation on the seat, how6 would the mechanism of heat get out of that cowling and7 impact the seat?8 A. The cowling, the seat, the hood, whatever you9 call that thing, the hood area that the seat sits on

10 hinges back where you can do your inspections and oil11 changes -- I meant, oil and all that. It's a hinge12 like -- I'll call it a piano hinge of some sort. That's13 not a seal. Okay. It's a drafting area, upward and14 outward. Heat obeys the laws of science of fire, rises,15 and it exited there. While it was accumulating over16 that area that I drew, that line on one of the17 documents, it accumulates, causes damage to the18 fiberglass. It's also spreading to some uniformity that19 you alluded to, but not quite. It spreads upward, out20 and it struck the back of that seat.21 Q. Okay.22 MR. MARICLE: Okay. We're going to stop23 here and change tapes.24 THE VIDEOGRAPHER: We are going off the25 record. The time is 3:24, and this is the end of tape




39 (Pages 153 to 156)

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1 2.2 (Break from 3:24 p.m. to 3:34 p.m.)3 THE VIDEOGRAPHER: We are on the record.4 The time is 3:34, and this is the beginning of tape 3.5 Q. (BY MR. MARICLE) Mr. Thornton, is it your6 testimony that all the fire damage we see to the Deep7 South lift truck was caused by damage from within the8 engine compartment, caused by a fire within the engine9 compartment?

10 A. All the fire damage that we see out there at11 the warehouse located on Highway 509 came from the12 inside of that engine compartment.13 Q. Okay. But specifically when we look at the14 right side of the truck, is that from damage from inside15 the engine compartment or is that from an external fuel16 source?17 A. You said right side?18 Q. Right.19 A. You're talking about the left side, you're20 looking at --21 Q. No, I'm looking at the right side. I mean, if22 you look at that, is that from damage that fire and heat23 from inside the engine compartment caused that external24 damage or is that from an external fuel source?25 A. The damage on the right side was -- the

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1 external damage was caused by the fire that was to the2 right of it, east within the cells. You're talking3 about the right side, not the left side, so we're not4 talking about that item there.5 Q. Correct.6 How would it look different if the fire7 started in front of forklift and wind pushed it8 underneath it?9 MR. ROGERS: Objection. Form.

10 A. The hypothetical, start a fire under --11 correction -- outside of the lift truck at the fork or12 squeezer end, and it's going to advance to a point to13 where it damages the lift truck. And the question is14 how would that evidence be different?15 Q. (BY MR. MARICLE) How would it look different?16 A. Yes. First of all, if it advanced from -- not17 the hypothetical, but this fire here, he was parked in18 loose paper, raised his clamps up about 2 to 3 feet. So19 he's got a pile of combustible fuel. If a fire started20 external at the front end of this unit, it would attack21 from east to west, and the flames would have caused22 damage to the hydraulic lines. It would have entered23 the engine compartment. And if it's coming uniformly24 underneath the truck that's sitting on paper, I would25 expect uniform damage to the entire unit because it's

Page 155

1 sitting in a pile of kindling or combustible fuel. If2 they hadn't of moved it, we would have an issue that3 might make all these burn patterns that are evident to4 be destroyed or masked, altered to where you couldn't5 read it. That hypothetical will not fit with the burn6 patterns that are at this fire scene.7 Q. And did you consider that as an alternative8 hypothesis?9 A. I considered all of the hypotheses that were

10 offered of external fire caused by someone pushing11 paper, someone, Gregory Charles, pushing paper up12 against this lift truck. Yes, I considered it. I13 considered electrical damage under the hood. I14 considered electrical damage as an ignition source from15 the light fixture, light conduit -- not conduit -- the16 conductors. I considered them all, yes.17 Q. What date was Gabe out there when he lifted18 the cowling? Do you know?19 A. You would have to ask him.20 Q. Okay.21 A. I'm not sure.22 Q. You were not present. Correct?23 A. That's right.24 Q. No one from NACCO was present. Correct?25 A. I don't know.

Page 156

1 Q. No one from Deep South was present. I can2 tell you that.3 A. Okay.4 Q. Okay. Do you consider that spoliation of5 evidence because interested parties who are now sued6 were not invited to that event?7 A. What is that?8 Q. What?9 A. The -- in your sentence, do you consider that,

10 and as, I'll put in, spoliation.11 Q. I would say altering the evidence, lifting the12 hood, breaking the hood. Certainly the evidence changed13 then.14 A. Yeah. The way I would look at it is I think15 that's a judge question. The gatekeeper is going to16 answer it, not me. But in my opinion, in every fire17 scene the first investigator on the scene alters the18 scene. The question of spoliation to me is can that19 alteration affect any other fire investigator from20 coming to a logical and even same, similar conclusion?21 No, I don't consider that spoliation.22 Q. Let me ask you this: Would you rather have23 seen the cowling intact and unaffected by Gabe's24 actions?25 A. If I can put it back together and I can see it




40 (Pages 157 to 160)

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1 in photographs that we've seen today and it confirms2 what I've seen, there's no alteration there that would3 alter or interfere, rather, with a competent fire4 investigator from coming to the same conclusion.5 So, no, whether -- if he did something6 that's -- you can't put it back together for someone7 else to come to a conclusion on, you would be guilty,8 but this right here don't -- that don't rise to that for9 me, but I'm not the judge. You're getting into --

10 Q. I'm looking for some exhibits.11 A. I've got four here for you, but that's the12 wrong stack.13 Q. Not that one.14 A. I don't think they're here. This is all the15 stack that were out in -- excuse me -- out in the middle16 of the table. I'm trying to get them back in order.17 Q. This will work. Looking at Thornton18 Exhibit 11 --19 A. Yes.20 Q. -- you don't find it ironic that what you've21 drawn as a clean line of burn through just happens to22 coincide with the actions where Gabe broke this?23 A. I don't find it ironic at all, if I understand24 "ironic." But does that mean that it's so -- that Gabe25 went out there and caused that to break? What caused

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1 that to break is easy to read, and you can reconstruct2 it if you had the equipment to go out there and check3 the fiberglass on the cowling portion evidence 9.4 There's nothing ironic to me about it. That's5 just a weakened point, and the only thing that weakened6 it is Gabe's action could have broke it loose from the7 hanging chad, if you will. But this shouldn't concern8 anybody to me. It don't concern me.9 Q. What type of paper was in the warehouse on the

10 night of the fire?11 A. They called it white paper.12 Q. What is that?13 A. White paper would be not this piece because14 it's got ink on it. I think the -- I call it super15 white for me, but it's white paper.16 Q. It's used paper?17 A. Yeah.18 Q. Okay.19 A. Going into a recycle plant.20 Q. Okay. Do you know if any of that paper had21 any inorganic content?22 A. Inorganic content. Paper, cotton. Yeah.23 Yes, it did.24 Q. Okay. Do you know if the percentage of25 inorganic content will inhibit ignition?

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1 A. Some inorganic content may speed up ignition,2 but the paper is an ordinary combustible. It ignites3 somewhere around 450 degrees Fahrenheit, like most4 ordinary combustibles. And no, I don't think it affects5 it any.6 Q. Will the percentage of inorganic content7 inhibit combustion?8 MR. ROGERS: Objection. Form.9 MR. MARICLE: What's wrong?

10 MR. ROGERS: Your question is too vague.11 You don't specify what the inorganic is or the range of12 percentages.13 MR. MARICLE: It's not organic stuff.14 MR. ROGERS: You said inorganic. Right?15 MR. MARICLE: Which is not organic.16 MR. ROGERS: Okay. You're not specifying17 what inorganic substance you're talking about.18 Q. (BY MR. MARICLE) You can answer the question.19 A. I don't know the answer to your question, sir.20 Q. What is ignition temperature?21 A. I'm sorry. Say that --22 Q. What is ignition temperature?23 A. General question, ignition temperature is the24 temperature needed to raise the temperature of a target25 fuel to a point where it ignites and causes -- and

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1 continues to burn.2 Q. And what is the ignition temperature of paper?3 A. Most all ordinary combustibles, if you look it4 up in NFPA 921 -- excuse me -- NFPA articles or anywhere5 else, is 450, plus or minus, degrees Fahrenheit.6 Q. And is your -- can you point me to a specific7 NFPA document you're referring to?8 A. No. NFPA has a handbook -- I said no too9 quick. Excuse me. NFPA has what's called a handbook, a

10 thick item. You can do Google searches. You can do --11 most articles published by people that publish articles,12 you'll find 450, plus or minus -- according to the13 individual that is conducting or presenting the paper.14 Generally accepted 450.15 Q. Do you have any information in your file to16 substantiate your opinion that the ignition temperature17 of paper is 451 degrees?18 A. As I stated earlier, I testified to my file19 and my work experience and things that I've studied over20 some 40 years, 450 degrees Fahrenheit is the ignition21 temperature of an ordinary combustible. And it's in a22 range.23 Q. What is piloted ignition?24 A. Piloted ignition is where you have to have an25 igniter.




41 (Pages 161 to 164)

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1 Q. Okay. So what is the ignition temperature of2 paper for a piloted ignition?3 A. It don't change.4 Q. It's 451?5 A. Paper -- paper is an object that has no,6 quote, mindset as to 451 or 450 or 500, whatever range.7 Whatever the ignition source, if it's a heated exhaust8 manifold or a match, 451. You can over achieve, I guess9 you would call it, and have 1200 degrees and ignite it.

10 But you've -- that's overkill. A match is more than11 450. So the paper is not the question. It's the12 igniter can produce and may have a rate of heat release13 that causes an endothermic reaction to become exothermic14 and flaming ignition quick. So it's not the ignition15 temperature of the paper.16 Q. Okay. So what is auto ignition?17 A. Auto ignition is for me next to spontaneous18 combustion, where a product -- paint products are19 subject to auto or spontaneous ignition just by the20 action of heat release of that product. And if it's21 encapsulated and can't dissipate, you can have auto22 ignition. If you take a paint rag, a varnish rag and23 hang it over a clothesline -- I don't think they got too24 many more of those, but if you hang it over a25 clothesline and it air dries, the heat dissipates. If

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1 you put it in a sack, a brown paper sack, you can get2 auto ignition.3 Q. All right. So is there an auto ignition4 temperature for paper?5 A. Paper don't care.6 Q. Okay.7 A. The ordinary combustibles, God said it. It's8 450 plus or minus, in that range. That's what it's9 going to be no matter what your heat source is.

10 Q. Okay. And you mentioned spontaneous11 combustion. What do you define that is?12 A. Same thing. Self-heating. Self-heating with13 encapsulation and holding that heat in where it can't14 dissipate. It goes from endothermic to exothermic and15 flaming ignition spontaneously.16 Q. Okay. Are there any factors that will impact17 that?18 MR. ROGERS: Object to form.19 A. Absolutely.20 THE WITNESS: I'm sorry.21 MR. ROGERS: You're fine.22 A. Absolutely, there are factors that impact23 that, yes.24 Q. (BY MR. MARICLE) What are those?25 A. And I think I've listed some and probably --

Page 163

1 factors -- please say your question again. I've gone2 too far.3 Q. I was just asking are there any factors that4 impact spontaneous combustion?5 A. Yes. Every factor, wind, lack of wind,6 oxygen, lack of oxygen, encapsulation, open air.7 Anything that happens in a chemical reaction like as8 fire can alter any stage of it. You can even suppress9 it. So factors -- you put that rag that I made an

10 example of in a five-gallon bucket of water and it's11 incapsulated, but it can't dissipate, and it won't burst12 into flame, generally speaking. So all kinds of13 factors. That's an open end.14 Q. Okay. So can you name the document that you15 referred to that has the temperatures within that as to16 various fuels?17 A. I would just do a Google search for ignition18 temperature of ordinary combustibles. You'll get papers19 from all kinds of people with classroom knowledge and20 equipment to test things. You can go to the National21 Fire Protection Association's handbook, and that's what22 it's called.23 Q. What's the name of the document?24 A. National Fire Protection Association handbook.25 It's just a book that's used by engineers, fire

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1 investigators and electrical engineers and such.2 Q. Do you have that book?3 A. No.4 Q. Have you ever owned that book?5 A. Oh, yes. I've owned up to the 13th edition6 back when I was active and even back when it was --7 there was another name of a company, and I can't think8 of it. One of the insurance groups started that, and I9 can't remember the name. But it's nationally known.

10 People quote it all the time. But to have the document,11 no, I don't have it. But it's in there.12 Q. It's in where?13 A. The handbook.14 Q. Oh, I thought you meant the document.15 A. The document is the handbook, and the handbook16 is in chapters, and the chapters contain a multitude of17 facets of fire protection type literature.18 Q. Okay. For a hot surface to be an ignition19 source for paper, does the paper have to be in contact20 with the hot surface?21 A. How hot is the surface?22 Q. I don't know. I'm just asking you a question.23 If you're saying that's a variable --24 A. That is a variable, yes.25 Q. Okay.




42 (Pages 165 to 168)

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1 A. If the hot surface is giving off 3200 degrees2 Fahrenheit and it don't have to touch it if it's inches3 or a space away. So your question is not answerable.4 Q. Okay. Let's use your file. What information5 do you have in your file as to the temperature of the6 exhaust manifold or exhaust on this Hyster H 80?7 A. Hyster 80, yes.8 Q. Okay.9 A. I think it's 80 FT.

10 Q. Okay.11 A. Or whatever. I just call it Hyster 80.12 The research that was done on that will be13 explained better by Robert Friedemann.14 Q. Okay. I just want you to answer the question15 based upon what information do you have in your file as16 to the temperature of the exhaust? And if you don't17 have it, just tell me I don't have it.18 A. I haven't seen Robert Friedemann's report in19 my file --20 Q. Okay.21 A. -- but I think I've seen it, and he does have22 that documented.23 Q. Okay. So do you know what the temperature is?24 A. In the range above 600.25 Q. Okay. Let's use 600. Is 600 degrees, in your

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1 opinion, hot enough to ignite paper if it's in contact2 with the manifold?3 A. Oh, yes.4 Q. Okay.5 A. And again, there's a variable that you left6 out and I should have pointed out. Time and7 temperature. There's a scientific information called8 the time temperature curve. Okay. Then you've got to9 have the time and the temperature. You can't just stick

10 a piece of paper on the manifold and do anything. You11 might scorch it, but I doubt it. But now you've got to12 introduce time in your question to me.13 Q. Okay. Let me ask you this: What happens as14 paper is heated? Take me and explain to me what happens15 during the process of heating paper.16 A. Okay. And we're talking about on a manifold,17 an exhaust manifold in this -- in this truck here?18 Q. Any -- let's just heat paper, whether it's in19 an oven or whatever. What happens?20 A. Okay. In this scenario here --21 Q. You're pointing to the photograph, so you're22 talking about the lift truck, but I'm just saying in23 general, but go ahead.24 A. If you put it on a hot iron, when people used25 to use irons -- I don't know if they use them -- you can

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1 get heat. But what I want to do is -- in the oven,2 okay.3 Q. Let's do this --4 A. In the oven, as soon as the oven said it5 600 degrees.6 Q. No. Let me back you up.7 A. Please.8 Q. Assuming that you want to end up at 600 and9 you have a cold oven -- so we're going from ambient to

10 600. Describe physically and chemically what happens to11 that paper during that heating.12 A. Number one, the engine starts. Heat starts to13 be produced. And I'll refer -- defer to Robert14 Friedemann's charts as to how long it takes to get that15 engine up to 600, plus or minus, degrees Fahrenheit.16 But once it gets to even in the 300-degree range,17 there's a chemical reaction called heat of18 decomposition. The paper starts to decompose, and19 oxidation takes over, and the paper at a point in20 time -- well, at this point in time that I'm talking21 about right now is, again, at the exothermic -- excuse22 me -- endothermic reaction. It's receiving heat. Endo23 meaning enter. Exo is exit. So endothermic. It's24 receiving heat. There's some decomposition, breakdown25 of the paper. The vapors -- the paper won't burn. It

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1 has to have vapors. The vapors are starting to convert2 to off gassing.3 Q. At what temperature?4 A. At around probably 350 degree range.5 Documents might prove me not to have the numbers, but it6 starts to decompose. You'll start seeing some browning7 of the paper. And a magnifying glass will show you8 exactly how that works. As it receives enough heat to9 start giving off heat at that exothermic, it's close to

10 ignition. How close? I don't know. But as it sits11 there -- and now we are in the time and temperature12 curve -- it will go into smolder. It can advance -- and13 it can get put out, blow off of the manifold and don't14 nothing happen. Or it can sit there and continue this15 time and buildup from smolder to the incipient stage of16 flaming later. And it can go in and out of the -- all17 of those phases of a fire from the incipient stage to18 flaming stage, smolder and decay and just go out, or it19 can advance to other materials, like it did out there,20 and cause catastrophic damage.21 Q. Okay. With regards to the white paper that's22 present at the Murphy Bonded Warehouse, at what23 temperature is the paper going to go to flaming24 combustion?25 A. Again, ignition temperature of paper is about




43 (Pages 169 to 172)

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1 in the range of 450, plus or minus, degrees.2 Q. Okay. That's your own personal knowledge, as3 well as information you understand from Friedemann?4 MR. ROGERS: Object to form.5 A. That being the answer to the last question?6 Q. (BY MR. MARICLE) Yeah.7 A. That's my personal knowledge from study over8 40 years of fire investigating and fighting fires.9 That's the way it works.

10 Q. Okay. If there is scientific data that proves11 you wrong on that temperature, is your opinion wrong?12 A. If there's -- say that again, please.13 Q. If there's scientific data that shows you14 paper does not ignite at 451 degrees, is your opinion15 and conclusions in this file wrong?16 A. I said -- and for correction here, in the17 range of 450 degrees Fahrenheit. The range of this18 piece of paper compared to this piece of paper may vary.19 And you can prove anybody wrong at a general statement20 of 450, which I never made. The range is somewhere21 around 450.22 Q. Okay.23 A. There is no paper like that out there.24 Q. Okay. It's your testimony that paper will25 ignite at 451 degrees. You've sworn to it. Correct?

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1 MR. ROGERS: Objection. Form.2 A. You keep saying 451. If I said 451, I said3 450, 451 are in the range.4 Q. (BY MR. MARICLE) Okay.5 A. And if I misspoke, I apologize to you. We'll6 correct the record right now. In the range of7 450 degrees, ordinary combustibles will ignite. And8 over the last -- since 1963, my adult life, I've tried9 to study nothing but fire. And I don't think you're

10 going to find a document that says paper don't ignite in11 that range.12 Q. In the range of 450 degrees, you're talking13 about?14 A. Thank you.15 Q. Okay. I'm just saying, if there is scientific16 literature in 2012 that we live and breathe in that17 shows that it's not 450 or not 450 or it's not18 500 degrees, is your opinion wrong?19 A. And if you found it is the big question.20 You're not going to find it. But if it is at21 600 degrees, the burn patterns are not wrong, the area22 of origin is not wrong, and the cause of the fire is not23 wrong.24 Q. Science doesn't change from Louisiana to25 Texas, does it? The laws of physics remain the same.

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1 Correct?2 A. I would agree with that.3 Q. Okay. You're not a scientist, are you?4 A. I am involved in science, yes.5 Q. You're not a scientist. You've never done6 testing as to when paper ignites. You've only read7 about it years ago, and you don't even own the book.8 Correct?9 A. That's your statement. Go ahead.

10 Q. Well, do you own the book?11 A. No.12 Q. No, you don't.13 A. That part is correct.14 Q. Okay.15 A. I don't think I do.16 Q. You said you owned the 13th edition. Do you17 know what edition it's on?18 A. I have no clue.19 Q. Do you know if you even have the name of the20 book right?21 A. Yes.22 Q. You think you do?23 A. I do.24 Q. You don't.25 A. Well, okay. You're getting upset. You need

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1 to slow down.2 Q. I'm going to go back to my question --3 A. Please.4 Q. -- because you haven't answered it. If5 science proves that paper doesn't ignite at 450 or it6 doesn't ignite at 600, which Friedemann tested the unit7 to, is your opinion wrong?8 A. If you can find that data, I will reconsider9 it, but the burn patterns will stay the same, is my

10 answer. Same answer.11 Q. Burn patterns are the same.12 A. Yes.13 Q. But whether they occurred early in the fire or14 later in the fire is the issue.15 A. That's called interpretation. Proper16 interpretation won't allow that.17 Q. Let me find something. So what causes burn18 patterns?19 A. Heat affects objects and whatever it strikes.20 It causes irreversible damage and patterns. When21 properly observed, analyzed, it can lead to an area of22 origin and cause of a fire in this case.23 Q. So you said the heat. Correct?24 A. That's right.25 Q. Can you name types of burn patterns?




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1 A. Directional and intensity.2 Q. Is that language that you can find in NFPA3 921?4 A. Yes.5 Q. What chapter?6 A. I don't know. I don't even quote John 3:16,7 sir. I don't know the chapter or the verse, but8 directional and intensity, the direction of the fire and9 the intensity is interpreted. There's no other burn

10 patterns.11 Q. And those are the only two burn patterns that12 you can describe?13 A. That's -- if you've got one, I will be more14 than glad to answer you.15 Q. So what is an intensity burn pattern?16 A. Intensity is the difference that's seen in the17 photograph of the cowling on the left side and right18 side. Intensity of the damage is quantified by19 comparing left-hand to right-hand side.20 Q. What's a directional burn pattern?21 A. The directional burn pattern, we talked about22 it in a roundabout way, of the fire extending out of the23 engine compartment, striking the metal back of that24 driver's seat. Directional, you can determine the25 direction the fire traveled, avenue of fire spread.

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1 Q. So as the -- strike that.2 Did flame come out of the back of the cowling,3 impact the seat, or is it heat?4 A. Could have been a combination.5 Q. Do you know?6 A. No. I wasn't there during the fire. It could7 have been either/or or both.8 Q. Well, you know that it's your opinion that9 fire ignited in the engine compartment, but you can't

10 tell me if flame came out of the back of the cowling?11 A. I've already answered you. That's what I12 said. You can't -- nobody knows unless they're standing13 there, no.14 Q. Okay.15 A. I don't know that.16 Q. So I go back to my question. Nobody knows17 that paper is in this engine compartment because we18 don't have -- you don't have in your file physical19 evidence of paper in the engine compartment, do you?20 A. There is -- what is -- my answer to the21 question is the reason they have a checklist is to blow22 the accumulation of paper out of the engine compartment.23 That's the reason they do it. It's not just something24 to do. So it's a known or a given that this can happen.25 Q. So --

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1 A. No, I do not have any evidence or sample of2 the paper collected out of there.3 Q. Okay.4 MR. MARICLE: Bruce, do you have a5 question?6 MR. ROGERS: No, it's fine. No.7 Q. (BY MR. MARICLE) So is it your testimony that8 the sole purpose of the checklist is so they can blow9 paper out of the engine compartment?

10 A. That wasn't what I said.11 Q. Okay.12 A. That wasn't the issue we was talking about.13 MR. MARICLE: Back up to his answer.14 Wait.15 Q. (BY MR. MARICLE) I'm going to quote from you.16 It says: The answer to the question is the reason they17 have a checklist is to blow the accumulation of paper18 out of the engine compartment.19 A. And to you that's the sole purpose, is what20 you read? There's no sole purpose in there. I said21 that's the reason they do that. There's other reasons.22 Q. So there are reasons they do it?23 A. Absolutely.24 Q. You said reason.25 A. That's fine. I didn't say sole purpose,

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1 though.2 Q. So do you know any of the other purposes they3 have a checklist?4 A. Yes.5 Q. What?6 A. Checking for the paper is one reason. They7 check the oil levels, both in the engine compartment and8 the hydraulic fluids. They check for wire accumulating9 on the axle or hub area. There may be other things.

10 Q. Do you have an opinion as to whether or not11 there was paper that clogged the radiator?12 A. No, I don't have one opinion there. It's a13 good possibility.14 Q. I'm going to refer you to your report, and I15 just need to find it.16 MR. GREY: 12, third bullet.17 Q. (BY MR. MARICLE) So I'm showing you18 Exhibit 4, which is your report of September 14, 2012,19 and asking you to look at the fourth bullet. And it20 says -- basically, why don't you just read that bullet21 out loud.22 A. The third bullet?23 MR. ROGERS: Fourth.24 Q. (BY MR. MARICLE) Fourth bullet.25 A. Fourth bullet. Excuse me. Cooling fan




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1 creates suction as the engine is being operated. That2 action caused paper, shredded and dust forms, to clog3 the radiator and come in contact with components of the4 engine compartment.5 Q. Okay. So just a minute ago I asked you if you6 had any evidence that the radiator was clogged and you7 said no, but in your report you're saying that the8 radiator is clogged.9 MR. ROGERS: Objection. Form.

10 Q. (BY MR. MARICLE) So which is it?11 MR. ROGERS: Objection. Form.12 A. And I attempted to correct my statement while13 you were looking for this when I said that that's just14 part of it and that it is a good possibility that the15 accumulation's in the radiator because the fan's blowing16 right into it. Misspoke.17 Q. (BY MR. MARICLE) So is the radiator clogged18 or not?19 MR. ROGERS: Objection. Form.20 A. It could be.21 Q. (BY MR. MARICLE) Is it fair to say you don't22 know?23 A. It's fair to say --24 MR. ROGERS: Objection. Form.25 A. It's fair to say that it is possible that the

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1 radiator gets clogged just as much as accumulation of2 paper on the exhaust manifold.3 Q. (BY MR. MARICLE) You just don't have physical4 evidence of it there?5 A. Absolutely don't, no.6 Q. Did you record the opinions of Forest Smith7 within your report anywhere?8 A. I don't think so.9 Q. In your report you testify it's your opinion

10 that the fire originates in the engine compartment in11 close proximity to the exhaust. What -- what does close12 proximity mean?13 A. The exhaust manifold and in that proximity to14 it, meaning that there are I'll call them air gaps,15 okay, where it bolts up to the manifold itself. That's16 close proximity.17 Q. So how close to the manifold?18 A. Actually, close enough to be in contact.19 There's both.20 Q. Okay. Your report doesn't say in contact. It21 just says in close proximity to the exhaust. Correct?22 A. I would imagine you've read it right.23 Q. Okay. Certainly you could have written in24 contact with it?25 A. If I made a perfect report, I might have, but

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1 I'm here to testify.2 Q. And what's your physical evidence, what data3 do you have, what photographs do you have that show4 paper in close proximity to the exhaust?5 A. And I think I've answered that that I don't6 have any.7 Q. Okay. Are there any eyewitnesses that8 contradict your area of origin?9 MR. ROGERS: Objection. Form.

10 A. I don't know. I haven't read all the reports11 that are going to come in. I can't answer you.12 Q. (BY MR. MARICLE) Well, an eyewitness --13 eyewitness' testimony or statement wouldn't be in a14 report.15 A. In other words, they didn't leave it out or16 something or what --17 Q. I don't know.18 A. I don't either.19 Q. I mean, I think the -- the best evidence may20 be in the depositions that is part of your electronic21 file. But as we sit here today, are you aware of any22 eyewitnesses as part of your paper file or an electronic23 file that contradict your area of origin?24 A. I don't know of any.25 MR. ROGERS: Bill's buzzing.

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1 MR. GREY: You're picking up the martian2 frequency. They're coming. They're landing now.3 MR. ROGERS: What was the question again?4 MR. GREY: I'm sorry.5 MR. ROGERS: I apologize for that. We6 got distracted.7 THE WITNESS: There hasn't been one yet.8 MR. ROGERS: Well, he was real close, I9 think. Pay close attention to the question. Okay.

10 THE WITNESS: Yes, sir.11 MR. MARICLE: Was there a pending12 question?13 MR. ROGERS: Before we rudely14 interrupted.15 THE REPORTER: No.16 MR. ROGERS: Okay. Sorry.17 Q. (BY MR. MARICLE) Do you need to take a break?18 A. No.19 Q. Okay. In your report, what do you identify as20 potential ignition sources within your area of origin?21 A. The potential sources of heat for ignition22 that I have considered, the lightning strike survey that23 was conducted to assure us that there was no lightning24 strike that caused that fire, the examination of the25 electrical system for the structure, including the




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1 conduit. Well, actually, even before that. Then that2 would refer back to Forest Smith. But the conduit and3 the conductors. The light bulb was considered.4 Possibilities of cigarettes being dropped out there was5 considered. There's no evidence of incendiarism.6 Possibility of a forklift clamp or -- being drug across7 the floor causing sparks. Possibility of a wire causing8 those same, similar sparks. Electrical failure within9 the Hyster 80. And then the final one that could not be

10 eliminated, the accumulation of paper on the unprotected11 exhaust manifold. I think I've covered them.12 Q. Okay. Quite a list.13 A. Say it again.14 Q. I said it's quite a list.15 MR. ROGERS: Objection. Form. There's16 no question pending. Wait for his question.17 THE WITNESS: I couldn't hear him. I18 didn't know what he said.19 Q. (BY MR. MARICLE) So as far as you know, Gabe20 Moreno is the first investigator out there. Did you21 ever talk with him and is that included in your file22 what he thought caused this fire?23 A. No, I didn't ask him any of those questions.24 Q. Did he ever tell you what caused the fire, in25 his opinion?

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1 A. I don't recall ever talking to him about that2 at all.3 Q. Okay. Why did you get a strike facts report?4 A. Lightning --5 Q. Okay.6 A. -- possibility. In an area out there, the7 possibility of lightning striking in an area and8 communicating underground even some sort of way of9 igniting the paper.

10 Q. During your investigation did you look to see11 if there was any evidence of a lightning strike?12 A. That's why I said I start my investigation and13 the report documentation at about 100 feet away from it.14 You walk around the site. You don't just look at the15 fire damaged structure. You look around for any and16 everything. What you're looking for, you don't know.17 You hope you recognize it when you see it. A gas can.18 A lightning strike would be included. There's nothing19 out there to indicate that.20 Q. Did you look on top of the building to see if21 there was any evidence of a lightning strike?22 A. Well, there was no lightning in the area, so I23 didn't get on the building. If I had got a report of24 lightning, then I might have considered -- no, I would25 have considered.

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1 Q. So why did you walk 100 feet around the2 building looking for evidence of lightning if you had a3 lightning strike report?4 A. I didn't have a lightning strike report.5 Q. Okay. And when did you get your lightning6 strike report?7 A. I can't -- I don't know, sir.8 Q. Was it before you left the scene such that you9 wouldn't have had to get on the building and look for

10 evidence of lightning?11 A. No.12 Q. Okay. Is there any information in your file,13 paper or electronic, that indicates there may have been14 lightning on the day of the fire?15 A. There's no information like that. It didn't16 happen.17 Q. If it did, you didn't consider it. Correct?18 A. I didn't say that, sir.19 Q. That's my question to you.20 A. My answer is I didn't say that. I didn't say21 that I didn't consider it. We've had a conversation22 here about sending off for a lightning strike report,23 looking around the building. You never know what you're24 going to see. But to say that I didn't consider it,25 that's an incorrect statement.

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1 Q. Is there any error rate with these lightning2 strike reports?3 A. I'm sure there are.4 Q. So did you take into consideration an error5 rate when you decided not to look for physical evidence6 of a lightning strike?7 A. I don't know what the error rate is. They8 were a dependable group that we used over the years.9 They've changed names now. Their error rate is like any

10 other scientific data. It may be stated somewhere, but11 I don't know where it is.12 Q. But it's your opinion that you feel that13 you've eliminated lightning?14 A. I have, yes.15 Q. Despite an error rate with the report?16 A. There's no evidence that that fire started17 from lightning, and I'm confident of it.18 Q. Do you know what altitude in the atmosphere19 the lightning strike facts report is run?20 A. I don't have technical knowledge of how they21 work.22 Q. Have you ever heard of ground to cloud23 lightning?24 A. Say it again.25 Q. Have you ever heard lightning go from the




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1 ground to the cloud?2 A. Ground to cloud --3 Q. Yeah.4 A. -- yes. There's cloud to cloud. There's5 ground to cloud, cloud to ground, yes.6 Q. You said electrical was a potential ignition7 source. Is that something that you've eliminated or you8 defer to Forest Smith to eliminate?9 A. I think you can combine that. I found no

10 reason to believe it was. And Forest Smith, as far as I11 know, didn't find anything that would indicate that it12 was electrical.13 Q. Okay.14 A. So it's a combined --15 Q. So is it your opinion we don't need Forest16 Smith; we don't need his testimony because you can17 eliminate the electrical?18 A. That's not a call that I would make ever. I19 think that expertise should be greeted. Forest Smith's20 job is totally independent of mine. And as a fire21 investigator, there's no indicators that the fire22 started as electrical. He just backs it up. He's23 independent of me.24 Q. Okay. And as far as your report, your report25 is prepared at least three weeks before you receive

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1 Forest Smith's report?2 A. That's possible.3 Q. If my math is wrong, it could be six weeks.4 But certainly it's after your report is prepared?5 A. That's a good possibility, yes, but that don't6 eliminate me talking to him.7 Q. Okay. You mentioned a bulb.8 A. Say it again.9 Q. You mentioned a bulb as a possible ignition

10 source.11 A. Yeah.12 Q. What kind of bulb are we talking about?13 A. I believe it's a Sylvania. We can look at the14 pictures and get the numbers on it. The bulb combined15 with the appliance. And burn patterns don't support16 that bulb dropping down causing this fire to cause the17 damage that we saw there. Forest Smith eliminated it18 from electrical engineer's side.19 Q. Okay. Have you ever investigated an HID light20 for being a suspected cause of a fire?21 A. I believe I've had one in a furniture store in22 Houston, Texas, but that's years and years ago, sir.23 Q. Are you familiar with the recommended science24 on how an HID light scene is investigated?25 A. I would consider it as a fire scene and

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1 document it just as I would any other. I would most2 probably request the assistance of an electrical3 engineer.4 Q. Did you eliminate the bulb or did Forest Smith5 eliminate the bulb?6 A. In my mind, I eliminated it by the fact that7 when Gregory Charles approached the area of origin, he8 says the lights are on. Now that's part -- partial9 elimination. Then Forest Smith steps in, and he's

10 looked at it, and he'll take care of that.11 Q. Can you point to me a document in your file12 where Gregory Charles says the lights are on?13 A. In his deposition, yes.14 Q. And that's your testimony, that his deposition15 says that?16 A. Yes.17 Q. And which lights are you talking about,18 because you've already indicated there are lights -- a19 lot of lights in this facility?20 A. Yeah, and that's why I gave you that answer in21 the way I did. Partially eliminated it. Forest Smith22 looked at it and takes care of the total elimination of23 it.24 Q. How is this light bulb different than a25 regular incandescent bulb.

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1 A. I'm not versed in that enough to answer you,2 sir.3 Q. Do you know the operating temperature of this4 bulb?5 A. I do not.6 Q. Okay. Do you know if it's above the ignition7 temperature of paper?8 A. I do not know the temperature.9 Q. Do you know how these bulbs fail?

10 A. I have no idea, sir. And your question is a11 little vague. What do you mean how they fail? Do you12 mean what's the action or reaction to failure or what13 are we asking?14 Q. I mean, you've only investigated one fire, so15 it may be that you're simply not qualified.16 Did you find all component parts of the17 Sylvania bulb within the area of origin?18 A. During that digging operation there was a19 gentleman out there, and I believe he was working with20 Sylvania, and he was, quote, in charge of sifting that21 area. Whether all the components were found, it would22 be best to target the question to Forest Smith.23 Q. Do you know how one goes about eliminating an24 HID light as a cause of a fire?25 A. As I said, I'll just defer to the electrical




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1 engineers on that.2 Q. Okay. But when you wrote your report on3 September 12 -- September 14, 2012, you didn't have his4 report. So how do you eliminate the Sylvania bulb if5 you don't have Forest Smith's report?6 A. Did I tell you that we had conversations?7 Q. Can you point to me in your file where you8 have that information?9 A. No. Conversations, I don't record what me and

10 him talked about.11 Q. So as we sit here today, you can recollect and12 recall that information, but you can't tell me the other13 file that you're working on at the present time other14 than this International Paper file?15 A. Let me answer the question the best I can16 without remarks. The -- I can remember that he17 eliminated the light bulb. The particulars of it, I do18 not know. No, we did not even speak to the particulars.19 That's my memory.20 Q. Okay. Do you know if all of the components of21 the Sylvania bulb have to be collected before it can be22 thoroughly analyzed and eliminated, or you don't know?23 A. I heard that there was a certain part that24 this individual was wanting to find, and at that point25 in time I was involved in other aspects of the

Page 190

1 investigation, so I don't know.2 Q. Well, you mentioned cigarettes or smoking.3 How did you evaluate cigarettes and smoking at the fire4 scene on the night of January 7, 2010?5 A. The no smoking policy was in effect at the6 warehouse area, and neither of those drivers smoked.7 Q. Neither of which two?8 A. The lift -- I didn't say two.9 Q. You said neither, so that's -- implies two.

10 So are you saying none of the three is what you mean?11 A. None of the three. Thanks for the English.12 None of the lift truck drivers are smokers.13 Q. Okay. Who else was out there that night?14 A. There were truck drivers, and they were15 generally smoke -- excuse me -- sleeping in their trucks16 and staying warm.17 Q. Where in your file is that information that18 they are in their trucks sleeping?19 A. That was what I said. It's in the deposition.20 I think that's Cleo, but I'm not sure.21 Q. Is there any information in your electronic22 file and those depositions that those truck drivers did,23 in fact, smoke?24 A. They could have smoked. There's no25 information one way or the other. But they weren't on

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1 the dock.2 Q. Again, you didn't talk to these men, so how do3 you know that?4 A. The information that was gotten from talking5 to these other guys that they had to wake them up to get6 them to move their trucks, and that makes me presume7 they're sleeping in their sleepers.8 Q. Okay. Did you look around the facility for9 evidence of smoking?

10 A. No.11 Q. Wouldn't that be important?12 A. Around the facility they may smoke out on the13 parking lot.14 Q. But you said earlier it's a nonsmoking job15 site.16 A. On the dock.17 Q. Only the dock is nonsmoking?18 A. That's my -- dock and pad. The back part is19 the pad. I think that's --20 Q. Does --21 A. They may be able to smoke in the clerical22 office.23 Q. Did you see people smoking in the clerical24 office?25 A. No, I did not.

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1 Q. Okay. The sign that is out at the Murphy2 Bonded Warehouse that says no smoking, does it limit it3 to where they can't smoke or is it just a general4 admonition that you can't smoke?5 A. I couldn't tell you the reason for the sign or6 the scope of the sign.7 Q. So assume that a truck driver smokes and8 assume that he's making a delivery that night and assume9 there's evidence of cigarette butts at that fire scene.

10 How do you eliminate the possibility that the smoker11 doesn't set a cigarette on the dock and the wind blows12 it into a loose pile of paper?13 A. My burn patterns are not in the paper, and the14 wind would have blown it to where there would have been15 a fire that advanced to the cells of paper sounding that16 unit. It wouldn't have been inside the engine17 compartment like it was.18 Q. Okay. Let me give you a further assumption.19 Assume that the cigarette is blown underneath the20 forklift and there's paper underneath it. What's it21 going to look like?22 A. Assuming is not what they paid me to do. They23 paid me to go out there and look at it. I don't see any24 evidence of a cigarette causing this fire.25 Q. Okay. The scientific method requires you to




49 (Pages 193 to 196)

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1 consider alternative hypotheses. I'm giving you2 evidence as a hypothetical that someone was, in fact,3 smoking. Now how do you eliminate that? That's all I'm4 asking you.5 A. And I thought I answered you. In a previous6 conversation here today, we talked about the lift truck7 being -- setting -- or setting in a debris strewn area8 called D cell. How deep, I don't know, but he did have9 to lift his squeezer clamps 2 to 3 foot high. He drove

10 it in as far as he could to clear the aisle when he got11 off to go do the computer work. Now if he's in that12 depth of material, a cigarette in this hypothetical13 assumption blows up on the dock and gets in the paper14 and then without going throughout with this wind and15 available material, it goes under and gets in the engine16 compartment instead of free burn and take the line of17 least resistance is a hypothetical that don't deserve18 consideration past I don't believe it. It can't happen.19 Q. Have you ever investigated a fire where you20 came to the conclusion that it was a cigarette fire and21 that it smoldered for a while?22 A. Yes, sir, I have.23 Q. Okay. But you don't think that possibility is24 here and should be considered as an alternative25 hypotheses or hypothesis under the scientific method?

Page 194

1 A. I think we just considered it, and I went2 through my analysis of it and eliminated it. That3 consideration, it won't hold up.4 Q. Okay. The only evidence in your report that5 you considered smoking was the fact that the three6 employees on the forklifts did not smoke. You didn't7 consider the possibility in your report that a truck8 driver may have smoked and that may have been blown into9 the paper.

10 A. That's --11 Q. If you did, point me to your report, because I12 don't see it.13 A. In answer to your question, my report is a14 summary of my thoughts and conclusions and opinions.15 The complete report is everything in this stack of16 papers and my years of experience brought me to these17 conclusions. There's a lot of things that's not in18 there.19 Q. Okay. Sir, I point you to Exhibit 4, and that20 is your Rule 26 report, and that is what is going to21 contain your opinions and your basis for your opinions22 in this case.23 A. And the keyword to me is the basis for my24 opinion, and my whole report is right before you, sir.25 Q. Okay. How did you eliminate incendiary fire

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1 as a possible cause?2 A. There was people working out there doing their3 assigned duties. There was no indication of someone4 coming in and doing a purposeful act. And there was no5 reports from the employees of anybody unauthorized being6 on the dock and in the area to cause a fire on purpose.7 Q. Okay. Have you ever investigated an8 incendiary fire where simply open flame was applied to9 ordinary combustibles?

10 A. Sure.11 Q. Okay. And certainly this facility at Murphy12 Bonded Warehouse was chock-full of ordinary13 combustibles. Correct?14 A. That would be my opinion, yes, it was.15 Q. Have you ever investigated a fire where an16 employee, whether they were unhappy or disgruntled, set17 a fire at their employer's facility?18 A. Yes, I have.19 Q. Okay. But, again, I point you to Exhibit 4,20 your report, and you just simply say there is no21 evidence of incendiary fire.22 A. The basis of my opinion, yes, it is.23 Q. Had there been any employees who had been24 discharged within the last year?25 A. I don't recall that.

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1 Q. Okay. You also indicate the clamp was2 something you considered, that it may have been drug3 across the concrete and may have caused sparks. How do4 you eliminate that as a cause?5 A. That's a potential source of heat for6 ignition. If you drag that clamp in an atmosphere that7 can receive this high temperature spark of short8 duration, time and temperature, to raise the temperature9 of the target fuel would not be sufficient. If it did

10 it into an action of smoldering, the forks are forward11 to the engine compartment. The wind is blowing in a12 northerly direction and would, in my opinion still, form13 that chimney effect in a west to east direction, and you14 would have had a fire that didn't glow. Gregory Charles15 would have seen a flaming fire of up over the tops of16 those 12 to 16-foot high cells.17 Q. Is it your opinion that if a spark from a18 clamp were to cause a fire, that it would smolder or19 would not smolder?20 A. In that wind and that atmosphere, smolder is21 going to be such a short duration, because it's going to22 fan the heat to the next target fuel, number two target23 fuel, number three package or whatever. And it wouldn't24 have been a fire that he would have saw, smelled smoke,25 go in, back out, see a glow. With that fanning action




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1 of the wind, available combustible materials, I don't2 believe that would be possible, sir.3 Q. Okay. Do you believe a spark can ignite4 ordinary combustibles as existed in Murphy Bonded5 Warehouse?6 A. It's a possibility --7 Q. Okay.8 A. -- out there. That's hypothetical.9 Q. Okay. So is it something that can happen but

10 you just believe did not happen?11 A. In a hypothetical, I believe you can get a12 spark to start a fire. You can get this Murphy bonded13 509 warehouse, IP, whatever you call this place, you can14 get a spark that starts to smolder. I don't deny that15 that's a possibility. But the probability of this fire16 being started that way ceases when you consider heat,17 fuel and oxygen and the wind speed of fanning that fire.18 The smolder time would have been too quick. When the19 action happened, some 10 to 45 minutes, according to20 which deposition you're reading, it wouldn't have set21 there waiting; it would have been taking off.22 Q. Do you consider the possibility that the23 smoldering could have occurred from Greg Charles when he24 was pushing bales?25 A. Greg Charles pushed bales on the south end of

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1 the warehouse.2 Q. Is --3 A. He was not around there.4 Q. Is there any testimony in the depositions that5 you were provided with that contradicts that and says6 otherwise?7 A. Contradicts what I just said?8 Q. Correct.9 A. Greg Charles says that after 8 o'clock he was

10 moved to the south end. Cleo Ellis -- Willis -- excuse11 me -- Cleo Willis continued to work midway, D aisle and12 others, up toward the north end. Gregory Charles had13 enough work, an abundance, working on the south end, and14 he didn't take his forklift or lift truck to the north15 end. And in no way from the first day consistently does16 he ever indicate that he went to an area where the17 Hyster 80 was parked, so that eliminates that.18 Q. Okay. So if there's deposition testimony that19 said he was pushing bales in that area, you have not20 considered it?21 A. In this question are we talking about Cleo22 Wilson's deposition?23 Q. Any of the depositions that's in your24 electronic file.25 A. I read in Cleo Wilson where he says that

Page 199

1 Gregory Charles admitted to him that he did that. And2 the credibility of the witness, believability rests with3 Gregory Charles consistently with the same story, and4 his willingness to speak to me, and when Cleo Wilson5 sits in the room and never says any objection to what6 he's saying. Cleo says a lot of things. If you read7 his whole deposition, you'll find that he's all over the8 board, as far as I'm concerned. He don't -- -- he has9 them loading trucks. They were not loading trucks.

10 They were off loading trucks. There's so many11 statements in there, I can't put a lot of faith in him.12 Okay?13 Q. Is there any other witness who indicates that14 Greg Charles was pushing bales on the north end of the15 warehouse?16 A. I do not know of any.17 Q. Baling wire. You listed baling wire. Is18 baling wire dragging underneath any of the lift trucks a19 possibility of producing sparks that can ignite this20 common combustibles in this warehouse?21 A. In the realm of possibility, it has to be22 considered.23 Q. Okay. In fact, baling wire was collected by24 you as evidence, and this was analyzed at SEAL, and in25 an SEM there was silica that was embedded in portions of

Page 200

1 that wire. Correct?2 A. Let me correct you. I didn't collect it.3 That was collected, I think, by Gabriel or one of the4 other guys that was out there. It was -- like the5 hydraulic hoses, I didn't specifically want that, but6 everybody had ample time to figure out what they wanted.7 But as far as finding silica in wire that's broken and8 drug -- okay. Silica is sand. We've got sand in9 concrete. Possibility exists that they would find

10 silica.11 Q. Do you know what temperature it would take to12 raise the wire to the point that silica would bond with13 the metal?14 A. No. If that's available, it could be looked15 up, but I don't have it.16 Q. Okay. Do you think that baling wire dragging17 on the ground can produce sparks that will cause a fire?18 A. The possibility exists --19 Q. Okay.20 A. -- just like I answered just a while ago.21 Q. Were you ever provided with any information22 from your client that they actually have documentation23 that warns against baling wire being drug across a24 concrete floor?25 A. I don't know if documentation's there, but I




51 (Pages 201 to 204)

Page 201

1 believe it exists as a possibility, yeah.2 Q. Okay. Did you ask any of the witnesses3 whether or not they had ever had a fire that was caused4 by baling wire dragging across the surface of the5 concrete?6 A. There was talk about it and taking wire7 cutters and cutting it loose and sparks being seen by8 one man, yes.9 Q. Okay. In fact, Tango established a checklist

10 that included removing of baling wire from those units.11 Correct?12 MR. ROGERS: Objection. Form.13 A. For several -- for reasons, yes.14 Q. (BY MR. MARICLE) Okay. And what are those15 reasons?16 A. As far as I know, that it could bind up the17 hub. Could cause damage to the brake system. I'm sure18 that -- well, I would presume that it would have also to19 do with dragging wire by somebody's thoughts that it20 could cause a fire, and that possibility, we've already21 said, is out there.22 Q. When you were investigating this fire, did you23 consider the prior fires that had occurred at Murphy24 Bonded Warehouse and what actually caused those fires?25 A. The fire that I'm thinking of -- and I just

Page 202

1 know of one right off the top of my head that would be2 pre-January 7 -- is Cleo was cleaning up and somehow or3 another a fire occurred near the dock's edge.4 Q. Okay. And that occurred when he was pushing a5 bale of paper. Correct?6 A. That never was cleared up for me in the7 depositions. I don't think we got -- as a matter of8 fact, someone said it wasn't investigated. And that's9 one of the deposition people. But I don't think you can

10 assume that that was ever cleared up.11 Q. Okay. Were there any other causes that you12 knew out there that you could have considered as to that13 previous fire?14 A. That would have to be looked at. If I don't15 investigate it, I don't know what needs to be looked at.16 Q. Okay.17 A. The same thing, you know, finding what ignited18 the fire, you would have to go through all those -- the19 process of elimination that we've talked about all day20 today.21 Q. Did you investigate a September 2010 fire?22 A. Is that September 29, does it look like to23 you? We're on -- getting on the page?24 Q. September something. I couldn't remember.25 A. Is it subsequent to the main fire, the large

Page 203

1 fire? And did it have to do with the OCC pad fire?2 Q. Correct, because it was only OCC at that3 point.4 A. Yes. Okay. Yes, I was out there.5 Q. You investigated that?6 A. I was out there and documented it and7 considered all the areas. So it would be -- I would8 consider it a combination investigation that extended9 from this fire.

10 Q. Okay. Can you point to me in your report11 where you went back out there and what considerations12 you had as to the cause of the fire?13 A. I can only show you the photographs from the14 29th when we were out there and talked to John Brasco.15 I believe his first name is John. Brasco was out there16 on the lift truck and observed -- and, yes, he gave me17 some information. It's included in this documentation.18 Q. Are you talking about the rekindle fire?19 A. Yes, I am.20 Q. Okay. That was in January --21 A. Okay.22 Q. -- of 2010.23 A. That's why I was asking you was it the 29th.24 Q. Okay.25 A. And that was in January.

Page 204

1 Q. So you're not aware of a September 2010 fire2 as well?3 A. Sitting here today, I don't know that I know4 anything about that, I don't think.5 Q. So we know that there were fires before6 January 7, 2010 and there was at least a fire in7 September of 2010 that didn't involve a Hyster H 808 without a paper kit. Correct?9 A. I don't know.

10 Q. Okay. Well, certainly in September they11 didn't have a relationship with Deep South anymore and12 they weren't using that equipment.13 A. I'll accept that. I don't know.14 Q. Okay.15 A. That's fine.16 Q. Okay. Is it fair to say that you have not17 been provided with that information by your client or18 counsel, so you cannot express an opinion as to the19 cause of the September 2010 fire?20 A. I don't know anything about it.21 Q. So if that was a fire that was caused by22 pushing bales, you can't expand on that?23 A. If I don't know anything about it, that's what24 I'm going to answer.25 Q. Okay.




52 (Pages 205 to 208)

Page 205

1 A. I don't know.2 Q. Did you have any information from Sando3 Wilson -- Anderson --4 A. Anderson, sir.5 Q. -- that he had seen baling wire produce enough6 sparks to cause a wire?7 A. That's the one that said one time. But8 sufficient to cause a fire, I don't recall him saying9 that. Just that he saw sparks.

10 Q. Okay. And do you know where that occurred at?11 A. It was -- what do they call it -- Slack Road12 or something, I believe.13 Q. Okay. Did you ever see the Slack Road14 operation?15 A. Yes.16 Q. And were they pushing bales?17 A. They were picking them up. I didn't see them18 push.19 Q. Okay. Did you see baling wire dragging from20 underneath the lift trucks?21 A. No, I didn't.22 Q. Did you look?23 A. Yes.24 Q. Did you document that with photographs?25 A. There's photographs in there.

Page 206

1 Q. Okay. You mentioned an electrical failure,2 and earlier you had also mentioned electrical. But3 again, that's something that you're going to defer to4 Mr. Smith?5 A. Which electrical failure? Now I have6 structural and then there's Hyster 80.7 Q. Oh, maybe that's the H 80.8 A. That's the reason for two times, sir.9 Q. Okay. All right. And so on the electrical

10 failure, the big arc was an arc that occurred or had to11 occur after it was moved twice by Cleo Wilson. Correct?12 A. That would be my opinion, yes, sir.13 Q. Okay. All right. So you don't consider that14 arc a cause of the fire?15 A. It was not.16 Q. Okay.17 A. It was considered as potential, and that's it.18 Q. Okay.19 MR. MARICLE: It's a quarter until five.20 Do you have a preference if we want to keep going, or do21 you want to break?22 MR. ROGERS: I'm about ready to hang it23 up. I don't know how you guys feel. What do you want24 to do? Do you have another 15 minutes and then we'll25 call it a day, or shall we --

Page 207

1 MR. GREY: Call it a day. It's fine with2 me.3 MR. MARICLE: Let's go ahead and punt4 until tomorrow morning. What time do you want to get5 back together?6 MR. ROGERS: 9 o'clock.7 MR. MARICLE: Is that good for you? And8 it's good for you. And Brian and McDonald, you're still9 good with 9:00 a.m. tomorrow to pick this up again?

10 MR. PROVOSTY: That works for us -- works11 for me.12 MR. GREY: Go ahead and speak for13 everybody.14 MR. PROVOSTY: I know, really.15 MR. MARICLE: Okay.16 THE VIDEOGRAPHER: We are going off the17 record. The time is 4:47, and this is the end of tape18 3.19202122232425

Page 208

1 CHANGES AND SIGNATURE2 PAGE LINE CHANGE REASON3 _______________________________________________________4 _______________________________________________________5 _______________________________________________________6 _______________________________________________________7 _______________________________________________________8 _______________________________________________________9 _______________________________________________________

10 _______________________________________________________11 _______________________________________________________12 _______________________________________________________13 _______________________________________________________14 _______________________________________________________15 _______________________________________________________16 _______________________________________________________17 _______________________________________________________18 _______________________________________________________19 _______________________________________________________20 _______________________________________________________21 _______________________________________________________22 _______________________________________________________23 _______________________________________________________24 _______________________________________________________25 _______________________________________________________




53 (Pages 209 to 212)

Page 209

1 I, JOHNNY THORNTON, have read the foregoing deposition and hereby affix my signature that same is

2 true and correct, except as noted above.34

___________________________________5 JOHNNY THORNTON678 THE STATE OF __________)

COUNTY OF _____________)9

Before me, ___________________________, on10 this day personally appeared JOHNNY THORNTON, known to

me (or proved to me under oath or through11 ___________________________) (description of identity

card or other document)) to be the person whose name is12 subscribed to the foregoing instrument and acknowledged

to me that they executed the same for the purposes and13 consideration therein expressed.

Given under my hand and seal of office this14 __________ day of ________________________, __________.1516

___________________________________17 NOTARY PUBLIC IN AND FOR

THE STATE OF ______________________18 COMMISSION EXPIRES: _______________19202122232425

Page 210

1 UNITED STATES DISTRICT COURT WESTERN DISTRICT OF LOUISIANA

2 SHREVEPORT DIVISION3 INTERNATIONAL PAPER )

COMPANY and FACTORY )4 MUTUAL INSURANCE COMPANY, )

Plaintiffs, )5 ) CIVIL ACTION NO.

VERSUS ) 5:11-CV-000176 )

DEEP SOUTH EQUIPMENT )7 COMPANY, ET AL, )

Defendants. )89

1011 REPORTER'S CERTIFICATION12 DEPOSITION OF JOHNNY THORNTON13 VOLUME 1 OF 214 NOVEMBER 14, 20121516 I, Julie C. Brandt, Certified Shorthand Reporter in17 and for the State of Texas, hereby certify to the18 following:19 That the witness, JOHNNY THORNTON, was duly sworn20 by the officer and that the transcript of the oral21 deposition is a true record of the testimony given by22 the witness;23 That the deposition transcript was submitted on24 ____________________ to the witness or to the attorney25 for the witness for examination, signature and return to

Page 211

1 me by ____________________;2 That the amount of time used by each party at the3 deposition is as follows:4 MR. MARICLE.....04 HOUR(S):35 MINUTE(S)5 MR. GREY.....00 HOUR(S):00 MINUTE(S)6 MR. PROVOSTY.....00 HOUR(S):00 MINUTE(S)7 MR. SMITH.....00 HOUR(S):00 MINUTE(S)8 MR. ROGERS.....00 HOUR(S):00 MINUTE(S)9 That pursuant to information given to the

10 deposition officer at the time said testimony was taken,11 the following includes counsel for all parties of12 record:13 FOR THE PLAINTIFFS:14 Bruce H. Rogers

BROWN DEAN15 306 W. 7th Street, Suite 200

Fort Worth, Texas 7610216 817.820.1120

[email protected]








Page 212

1 FOR NACCO MATERIAL HANDLING GROUP:2 Francis J. Grey, Jr.

LAVIN, O'NEIL, RICCI, CEDRONE & DISIPIO3 190 N. Independence Mall W.

Suite 5004 Philadelphia, Pennsylvania 19106

215.351.75405 [email protected] William M. Bass

VOORHIES & LABBÉ7 700 St. John Street, 4th Floor

Post Office Box 35278 Lafayette, Louisiana 70502-3527





504.310.210014 [email protected] FOR VALLEY ELECTRIC MEMBERSHIP CORPORATION:16 Brian Smith (via telephone)

UNGARINO & ECKERT, LLC17 910 Pierremont Road, Suite 351

Shreveport, Louisiana 7110618 318.866.9596

[email protected] That $__________ is the deposition officer's21 charges to the Defendant Deep South Equipment Company,22 Inc. for preparing the original deposition transcript23 and any copies of exhibits;24 I further certify that I am neither counsel for,25 related to, nor employed by any of the parties or




54 (Page 213)

Page 213

1 attorneys in the action in which this proceeding was2 taken, and further that I am not financially or3 otherwise interested in the outcome of the action.4 Certified to by me ______________________, 2012.567 ___________________________________

Julie C. Brandt, CSR, RMR, CRR8 Texas CSR No. 4018

Expiration Date: 12/31/129

Merrill Corporation10 Reg. No. 191

4144 North Central Expressway11 Suite 850

Dallas, Texas 7520412 800-966-456713141516171819202122232425


In The Matter Of:

INTERNATIONAL PAPER COMPANY, et al.

v.

DEEP SOUTH EQUIPMENT COMPANY, et al.

___________________________________________________

JOHNNY THORNTON ‐ Vol. 2November 15, 2012

___________________________________________________




1 (Pages 214 to 217)

Page 214

UNITED STATES DISTRICT COURT WESTERN DISTRICT OF LOUISIANA SHREVEPORT DIVISION INTERNATIONAL PAPER ) COMPANY and FACTORY ) MUTUAL INSURANCE COMPANY, ) Plaintiffs, ) ) CIVIL ACTION NO. VERSUS ) 5:11-CV-00017 ) DEEP SOUTH EQUIPMENT ) COMPANY, ET AL, ) Defendants. )

****************************************************** ORAL AND VIDEOTAPED DEPOSITION OF JOHNNY THORNTON VOLUME 2 OF 2 NOVEMBER 15, 2012 ****************************************************** ORAL AND VIDEOTAPED DEPOSITION OF JOHNNY THORNTON, produced as a witness at the instance of the Defendant Deep South Equipment Company, Inc., and duly sworn, was taken in the above-styled and numbered cause on the 15th day of November, 2012, from 9:00 a.m. to 12:14 p.m., before Julie C. Brandt, RMR, CRR, and CSR in and for the State of Texas, reported by machine shorthand, at the offices of Brown Dean, 306 W. 7th Street, Suite 200, Fort Worth, Texas, pursuant to the Federal Rules of Civil Procedure and the provisions stated on the record or attached hereto.

Page 2151 A P P E A R A N C E S2

FOR THE PLAINTIFFS:3

Bruce H. Rogers4 BROWN DEAN

306 W. 7th Street, Suite 2005 Fort Worth, Texas 76102









FOR NACCO MATERIAL HANDLING GROUP:17

Francis J. Grey, Jr.18 LAVIN, O'NEIL, RICCI, CEDRONE & DISIPIO

190 N. Independence Mall W.19 Suite 500

Philadelphia, Pennsylvania 1910620 215.351.7540

[email protected]

William M. Bass22 VOORHIES & LABBÉ

700 St. John Street, 4th Floor23 Post Office Box 3527

Lafayette, Louisiana 70502-352724 337.232.9700

[email protected]

Page 216





FOR VALLEY ELECTRIC MEMBERSHIP CORPORATION:7

Brian Smith (via telephone)8 UNGARINO & ECKERT, LLC

910 Pierremont Road, Suite 3519 Shreveport, Louisiana 71106

318.866.959610 [email protected] ALSO PRESENT:13 Eric M. Benstock14

VIDEOGRAPHER:15

Sandra Bentley, CLVS16171819202122232425

Page 2171 INDEX

PAGE2

Appearances.................................... 2153 Proceedings.................................... 218

Stipulations................................... 3444

JOHNNY THORNTON - VOLUME 25 Examination Continued by MR. MARICLE...... 218

Examination by MR. GREY................... 2466 Further Examination by MR. MARICLE........ 341

Examination by MR. PROVOSTY............... 3427

Signature and Changes.......................... 3468 Reporter's Certificate......................... 3489

DEPOSITION EXHIBITS IDENTIFIED10




Exhibit 18 AUTOCAD drawing................. 28014


Exhibit 20 AUTOCAD drawing................. 28716












2 (Pages 218 to 221)

Page 218

1 P R O C E E D I N G S2 THE VIDEOGRAPHER: Good morning. This is3 November 15, 2012. The time now is 9:00 a.m. This is4 videotape number 1, volume 2 in the continuation of5 Johnny Thornton.6 Would the court reporter please swear in the7 witness.8 JOHNNY THORNTON,9 having been first duly sworn, testified as follows:

10 EXAMINATION CONTINUED11 BY MR. MARICLE:12 Q. Mr. Thornton, we're back for day number two.13 But since we stopped your deposition yesterday, have you14 reviewed any additional information?15 A. No, sir.16 Q. Okay.17 A. Well, I'm looking at pictures right now,18 but --19 Q. Okay.20 A. The review.21 Q. Okay. In your report yesterday, you talked22 about the fact that there was burn-through of the left23 side of the cowling and primarily that's the burn24 pattern that you utilize to get to your area of origin.25 Correct?

Page 219

1 MR. ROGERS: Objection. Form.2 Q. (BY MR. MARICLE) You can answer.3 A. Primarily that was one of the final areas of4 burn patterns that cinched it that it's under the hood5 or the cowling of that Hyster 80.6 Q. Okay. And one of the things you used to7 describe the reason that you thought this was the area8 of origin, because that cowling on the left side9 reflected a loss of material. Correct?

10 A. And in relationship dissimilar to the right11 side of the same, similar material, yes.12 Q. Okay.13 (Exhibit 15 marked.)14 Q. (BY MR. MARICLE) I am marking as Exhibit No.15 15 an IP Bates numbered photograph, 508635. I will show16 this to you. I will show this to you. And this is a17 photograph from the right side of the Hyster H80.18 A. Yes.19 Q. Does that photograph of the right side of the20 cowling also show loss of material?21 A. Yes.22 Q. When was the first time you realized that Gabe23 Moreno broke off the left side of that cowling?24 A. On the first day's visit that I made out25 there, and I was looking at the lift truck, and I may

Page 220

1 have made some remark that the item marked later as E9,2 the cowling being -- laying on the pad area, slab. That3 would have been sometime during the early morning hours,4 I would think.5 Q. Okay. How come you didn't include in your6 report the fact that it was broken off by Mr. Moreno?7 A. I just didn't.8 Q. Okay. We looked at this yesterday. This is9 Exhibit 14, which shows the cowling intact before it was

10 broken off by Mr. Moreno.11 A. Yes.12 Q. How come you didn't include that photograph in13 your report?14 A. I guess the same reason I didn't include a15 bunch of others. I selected a few to kind of outline my16 report, and I based my opinion on the total package of17 my investigation.18 Q. Would you agree that Exhibit 14 more19 accurately reflects the condition of the forklift after20 the fire before it was broken than Exhibit 11?21 A. Say that again, please.22 MR. MARICLE: Can you read back the23 question?24 (Requested testimony read.)25 A. It would absolutely reflect it better. This

Page 221

1 is not my photograph, I don't think. I never saw this2 condition.3 Q. (BY MR. MARICLE) Well, you bring up a good4 fact. Did Mr. Rogers ever provide you with photographs5 that were taken by NACCO?6 A. I -- I don't think so.7 Q. Okay. Were you ever provided with photographs8 taken by Gabe Moreno?9 A. No, sir.

10 Q. Were you ever provided with photographs from11 any other investigator?12 A. No.13 Q. Have you sent or received any e-mails from14 anyone other than Mr. Rogers in this case?15 A. Yes.16 Q. And to whom?17 A. Numerous people. I will -- there was -- the18 first e-mails would be a guy named Wayne Nissen,19 N-I-S-S-E-N, in the Shreveport area of Louisiana. Fred20 Mowrer, we probably had e-mails. Forest Smith. Tony21 Perryman maybe. I'm trying to think who else.22 Q. Do you consider e-mails part of your file?23 A. I consider e-mails as an e-mail and could be a24 part of my file, yes.25 Q. It was not produced as part of the file that




3 (Pages 222 to 225)

Page 222

1 was produced in response to the subpoena that was issued2 for your file. Correct?3 A. Could we look at that and see if it's included4 in there?5 Q. I will tell you that in Exhibit 5, there's an6 e-mail from Mr. Rogers and Mr. Hart to you, but there7 are not other e-mails. You're welcome to look through8 there.9 A. No. I'm talking about the subpoena, sir.

10 Q. Oh.11 A. And if I didn't say Bob Friedemann just while12 ago, there was probably e-mails from him also.13 Q. Okay.14 A. If I didn't say that, I apologize.15 Q. Okay. I mean, there is a subpoena that's16 Exhibit 3. It does not specifically mention e-mails,17 but it does talk about your entire file. And I would18 think if you've got a subject line in an e-mail that's19 referencing IP or the FM fire at Murphy Bonded20 Warehouse, that should be part of your file. Do you?21 A. I would consider that I received the subpoena.22 It doesn't say anything about electronic file. My23 entire file. If I overlooked the e-mails, they can be24 gotten to you almost immediately. I have my computer25 here. I don't try to make an excuse for not sending it.

Page 223

1 It sure wasn't nothing to be hidden in those e-mails.2 There would be another guy named Guillermo, and I can't3 think of his last name, who does AUTOCAD work for me.4 Q. Okay. Yesterday we looked at Exhibit 14, and5 on that green circle, that's the area that you indicated6 that Greg Charles used the fire extinguisher to point7 through that crack.8 A. That's my opinion.9 Q. Okay. But isn't it true, in fact, when you

10 and Greg Charles walked up to the forklift together on11 or after January 20, 2010, that Exhibit 11 is actually12 how that photograph looked, and there is no crack that13 he would have been able to point out to you?14 A. I hear what you're saying. There would be no15 crack, is where I'm taking my breath there -- is there16 would be a crack if you know that there was a cowling17 there previous to it, so there was a crack during the18 time that Gregory Charles was there. Whether this19 picture depicts it or not, I can't express any better.20 Q. Looking at Exhibit 15, that right side of that21 cowling, does that also reflect loss of mass of the22 cowling?23 A. I believe you've asked that already this24 morning once, and --25 Q. If I did --

Page 224

1 A. -- there is some definite reflected heat type2 damage to the exterior of that cowling.3 Q. If I did, I apologize. Getting older.4 A. I'm not. I said yesterday I was 73, and I'm5 not but 72. I just got a year.6 Q. Okay.7 A. Praise the Lord. Ain't that cool?8 Q. It is good.9 (Exhibit 16 marked.)

10 Q. (BY MR. MARICLE) I'm now showing you what11 I've marked as Exhibit 13 (sic), which is a picture of12 the Hyster H90, and I would like you to look at the left13 side of that cowling and explain to me -- or describe to14 me, rather, how that cowling looks different than the15 cowling reflected in Exhibit No. 14, the damage to that16 cowling.17 A. Not the construction of the --18 Q. Just simply --19 A. Just the burn pattern.20 Q. -- burn patterns to the cowling.21 A. Yeah. If this is the only two pictures I had22 to look at, and comparatively, I would say that at a23 lower level in Exhibit 16, Thornton Exhibit 16, which is24 the Hyster 90, perhaps observe that there's some low25 burn damage to the cowling at the area where there are

Page 225

1 vents and the expanded metal wire. The tires are more2 severely damaged. And I can only see the right rear on3 Exhibit 14, which is the Hyster 80. The heat damage at4 that end -- excuse me -- at that -- Exhibit 16 at the5 lower levels, it shows fire spreading from an area6 attacking that cowling.7 Q. In looking at your Rule 26 disclosures,8 there's a number of court cases in which you've9 obviously testified. You -- in those cases where you

10 have testified, it's always been as an origin and cause11 expert. Correct?12 A. I believe you're right.13 Q. Okay.14 A. I don't know of any others.15 Q. In each of those cases where you did, in fact,16 testify, it was when you had a valid PI license for the17 State of Texas and you had -- at least during the civil18 matters you testified you had a certified fire and19 explosion investigator's certificate from NAFI.20 Correct?21 A. I would presume that that is correct.22 MR. MARICLE: I just need to see 14 back23 when you're finished.24 MR. ROGERS: Sorry. Timing is25 everything.




4 (Pages 226 to 229)

Page 226

1 MR. BUTLER: My bad.2 MR. MARICLE: That's okay. And give him3 back that one.4 Q. (BY MR. MARICLE) The primary fire pattern5 that you utilized as part of your determination of your6 area of origin is depicted on the cowling as reflected7 in Exhibit 14. Correct?8 MR. ROGERS: Objection. Form.9 A. The word that you're using "primary" would

10 seem like to me that I focused on that one. And I11 haven't done that even in this deposition. Primary burn12 patterns to the lift truck Hyster 80 includes the back13 of the seat and just the hubcap being lost. I can't use14 the word "primary." That would be -- I didn't focus on15 it, and I hope I hadn't in this depositions or lead you16 to believe that that's the only thing.17 (Exhibit 17 marked.)18 Q. (BY MR. MARICLE) I'm showing you what I've19 now marked as Exhibit 17. And it's got an IP Bates20 number of 508118. And this is what eventually becomes21 tagged as, I think, Evidence E9. Is that the backside22 of the cowling?23 A. It is, sir.24 Q. Okay. Can you tell us or describe for us the25 burn patterns that you see on the backside of that

Page 227

1 cowling.2 A. E17 -- I mean, excuse me, Exhibit 17 is the3 cowling that we placed Evidence No. 9 on. And it was4 found in that position when I arrived. And that's that5 conversation I had with Gabe. The fiberglass in this6 portion of the cowling along the lower edge, lower7 center and extending down to the lower middle is a8 frayed condition of the fiberglass, showing that the9 fiberglass has lost its resin. It's the glass fiber

10 that it's showing at the upper areas. If you flip that11 over in the picture, you would have it -- maybe that12 upside down picture would show you how it would rest on13 the unit. There's some heat stress at the lower -- I'm14 going to have to turn it back upside down or I'll be15 talking wrong here -- at the upper areas that -- no,16 that would be the lower areas. Excuse me. At the lower17 level, there's some heat stress on that fiberglass unit18 there that's indicative of more heat stress within the19 interior. And when we compare that with the exterior,20 it's to a lesser degree, and the deterioration is from21 within.22 Q. You talk about the loss of mass or the loss of23 resin. Is there any chemical or analytical test that24 could have been done to compare the loss of mass, the25 loss of resin from the left side of the -- or the

Page 228

1 cowling on the left side to the cowling on the right2 side?3 A. There might be a test that could have and4 could be run from another -- from time forward of this5 period of you and I sitting here. Comparisons by what I6 see on the left-hand or the right-hand is what I did out7 there.8 Q. Okay. But you didn't do that --9 A. I did not.

10 Q. -- analytical or chemical test?11 A. No, I did not.12 Q. Okay. Looking back at Exhibit 17 --13 A. Yes, sir.14 Q. -- describe for me how those patterns would15 look differently if the fire began on the outside of the16 forklift and moved to the forklift.17 A. In Thornton 17, you have a firm and solid look18 to at least -- and I'm going to estimate broadly --19 three fourths of that E9. Okay? If it had attacked20 from the outside, you would not have had the21 deterioration and the heat stress on the inside of the22 unit. It didn't come through.23 Q. What causes heat stress?24 A. Heat.25 Q. Okay. What is heat stress?

Page 229

1 A. Heat stress, stress caused by heat, thermal2 decomposition. And if you want me to use my word, the3 thermal decomposition shown in the upper portion of4 Thornton 17 is more severe on the inside than on the5 outside.6 Q. The area you're calling decomposition, could7 that just simply be a protected area because it was8 protected by either the breather element or the9 resonator that's in that unit?

10 A. Well, you're talking opposite. This is not11 protected. This is exposed to heat stress or thermal12 decomposition. That's not a protected area.13 Q. Okay. Would you agree with me that if the14 fire started on the inside of the engine compartment15 that we would expect to see greater fire damage inside16 that engine compartment as compared to outside of the17 engine compartment?18 A. Where is outside the engine compartment? The19 total warehouse?20 Q. You can limit it to the forklift. Wouldn't it21 be -- you would have greater damage underneath that22 cowling than outside of that cowling?23 A. Greater damage has to do with the combustible24 fuel load that caused the damage that you see in25 Exhibit 17 on the inside. Had they not moved the lift




5 (Pages 230 to 233)

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1 truck, had they not ex -- excuse me -- attempted to2 extinguish the fire -- once you start to extinguish a3 fire, you suppress the thermal decomposition. Once that4 mass of paper or paper product was on fire and, in my5 opinion, dropped to the floor, it changes the6 compartmentalization of your fire. During the7 compartmentalization, you had the damage that is shown8 in the bottom of E -- excuse me -- Exhibit 17. During9 the compartmentalization, while it was in an unknown

10 quantity and in contact with -- or I call it proximity11 to -- but in contact with the exhaust system -- once it12 dropped to the second target fuel underneath the lift13 truck, it changed the whole thing. They moved the lift14 truck. There's a lot of factors that come into why it's15 attacked differently. They moved the lift truck by16 backing it from an east -- I mean, a west to east17 attitude to a north to south attitude, placing this side18 where the cowling of E9 in Exhibit 17 was away from the19 fire. The damage had been done inside the unit. I hope20 that answers your question.21 Q. Is it your understanding there is no fuel load22 to the left side of the unit?23 A. I don't understand your question. No fuel24 load?25 Q. Is it your understanding that there's no

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1 warehouse paper product fuel load to the left side of2 the forklift?3 A. Once they moved it or before they moved it?4 Q. Once it's moved.5 A. Once it's moved, it was in the aisle with the6 exposure -- with the total north wind cooling effect.7 So there's no fuel load out there on that north/south8 main aisle that burned and caused -- would have caused9 anything.

10 Q. Yeah. What amount of fuel load would be11 needed to generate the damage you see on the inside of12 E9 as reflected in Exhibit 17?13 A. I don't know how anybody could quantify14 anything like that, to answer your question, sir.15 Q. Okay. What examination or testing have you16 done to determine that the heat damage to the cowling is17 what caused that to break, meaning the loss of resin,18 the loss of strength to the fiberglass is what caused19 that to break?20 A. And your first part of your question was what21 testing have I done?22 Q. Yes.23 A. Experience over the years of seeing fiberglass24 and other articles burn, fire has a behavior, and this25 exhibits the results of that behavior.

Page 232

1 Q. Do you know what side of the lift truck Gabe2 Moreno was on when he lifted up this cowling and which3 it broke?4 A. No, I do not.5 Q. Does it matter?6 A. I don't know that it would matter, no.7 Q. You mentioned yesterday that there were8 hydraulic lines at the front of the mast that were9 compromised. Do you have any physical evidence with us

10 today to show us that compromise?11 A. I'm in photos 10003, photos 12810. And in12 particular I'm on image 2961. And internal to that13 unit, there's some damage to the hydraulic lines below.14 And that might not be my best picture. I'm trying to15 zoom in and see. I cannot really see it except that one16 line at an area where there's a common radiator clamp17 appears to be missing.18 Q. Okay. Yesterday you used the word19 "compromise" to mean that the hydraulic lines had opened20 up such that the fluid would have been dispersed.21 Correct?22 A. That's your interpretation. Let me see if I23 can make it my interpretation. The compromise means a24 leak was formed. In other words, the integrity was25 compromised. The design of a hydraulic fluid line is to

Page 233

1 hold hydraulic fluid under pressure. Some pinhole leak2 might be a compromise.3 Q. Okay.4 A. I don't know how big the hole was.5 Q. Okay. But you don't have a photograph showing6 me here's a hole I can point to, do you?7 A. No, sir.8 Q. Okay. What temperature will fiberglass burn9 at?

10 A. Fiberglass, the resin, I'm not sure exactly.11 It will be the resin that will burn. So -- and I don't12 know the temperature, sir.13 Q. Describe for me the science about how14 fiberglass would have to be heated and what temperature15 it's going to take so that vapors are going to form and16 those vapors will ignite.17 A. The resin will ignite -- and I don't have18 that, so I can't give you that. The resin --19 Q. Is it because you don't know the answer?20 A. Yes.21 Q. Okay. That's all I needed.22 A. That's good.23 Q. Yesterday we talked about -- and you placed on24 one of the exhibits where Greg Charles was,25 approximately, because you weren't sure which trailer he




6 (Pages 234 to 237)

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1 was in, but where he was approximately when he smelled2 smoke. And I want you to take me from that point and3 describe what actions he did up until the point he's4 discharging the fire extinguisher. Because I know you5 said he was on his forklift, he started driving, then he6 said no -- or he's thinking, I don't really have time to7 get there; I need to jump off, run, grab some fire8 extinguishers. But describe to me your understanding of9 what he told you.

10 A. Yes, sir. Greg Charles was off-loading, not11 loading the trucks at the area of the docks numbered 912 through 16. He pulled into a trailer to pick up a bale.13 As he pulled in, with that northerly wind blowing from14 the north end to the south end where those 9 through 1615 dock -- trailer docks are, he smelled smoke. He backed16 out of the trailer. And by the attitude or position,17 rather, of his Hyster 90 that he was driving, being18 parked heading in a southerly direction near trailer19 dock 15 or 16, I don't believe he ever turned and headed20 toward the north end of the dock. I believe he was21 thinking about it, and he got off his truck. The truck22 wasn't moved by anybody, indications to me. So the lift23 truck was left between dock numbers 15 and 16. So I24 think he was right near that trailer.25 Q. Okay.

Page 235

1 A. He jumps off after seeing, there's no sense in2 driving down there and burning up the forklift or3 getting me in trouble, I guess is what he's thinking.4 So he gets off, gathering at least two extinguishers,5 running toward D aisle. He saw a glow when he backed6 out of that trailer. He saw a glow. As a trained Navy7 firefighter, he related it to fire. And he took off in8 a northerly direction and gathered those two9 extinguishers and went directly to the Hyster 80. As he

10 ran that way, he was yelling fire. He went directly to11 the Hyster 80. And that's when he attempted to12 extinguish the fire.13 Q. Okay. Yesterday you described the main aisle14 is about 20-foot wide. Correct?15 A. 20 to 25, yes.16 Q. 20 to 25 feet wide. And is it your17 understanding that that 20 to 25-foot main aisle was18 open and visible such that he could have seen the19 D aisle from whatever truck he was unloading?20 MR. ROGERS: Objection. Form.21 A. I believe that he could see the glow and I22 also believe that there was some -- at least one pile or23 stack of paper in that north/south aisle, about halfway24 up. Obviously it didn't obscure his view, because he25 did see the glow.

Page 236

1 Q. (BY MR. MARICLE) Okay. The burn pattern2 that's on the left-side cowling and the burn pattern or3 the -- burn pattern or the oxidation that you see on the4 seat, it sounds like it's primarily those patterns that5 lead you to eliminate the other potential ignition6 sources that we discussed yesterday afternoon.7 MR. ROGERS: Objection. Form.8 A. Not a fair assumption. It's incomplete.9 Q. (BY MR. MARICLE) Okay. If other fire

10 investigators disagree with you as to the area of11 origin, what do you think of that?12 A. I'd have to see that opinion and read it.13 Q. Okay. Do you know if Gabe Moreno disagrees14 with you?15 A. I haven't seen any report from Gabe Moreno. I16 have not talked to him about what he thinks.17 Q. Okay. The fact that the cowling was broken by18 Gabe Moreno, do you attribute that to the fact that more19 resin or fiberglass had been consumed from the fire?20 A. It was weakened, yes.21 Q. Okay. At what point during the fire on the22 Hyster H80 did the right front tire start to burn?23 A. You said the right front tire. Right?24 Q. Correct.25 A. Okay. At the point that the flames or heat

Page 237

1 reached an ignition temperature after the fire had2 started in the engine compartment, dropped down to that3 secondary fuel package -- and you could break down every4 other fuel package, the paper under the forklift -- the5 lift truck, the rubber goods of the tire and/or the6 hydraulic fluid, the paper on the floor that may or may7 not have had hydraulic fluid on it. But at a point in8 time, the heat was sufficient to start fire to the9 tires.

10 Q. Okay. So at what point in the fire did this11 happen? Was it before Greg Charles got there? Was it12 after Greg Charles had gotten there? Was it before Cleo13 Wilson moved the forklift? Is it after Cleo Wilson14 moved the forklift? Or you don't know?15 A. Okay. The scenario that I see it as, when16 Greg Charles first got there, he went directly to where17 he saw flames coming out of that crack that we've talked18 about. The next thing he did, he goes to the mast.19 Based on his statement and the damage done to the fire20 scene, the fire had spread during that time, being21 whipped by this northerly wind. The yelling that there22 was a fire alerted Sando Anderson, who alerted Cleo.23 Cleo came out and moved the truck. Whether it was24 visibly on fire when he started to move the truck -- at25 some point in time -- there's no -- no documentation, no




7 (Pages 238 to 241)

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1 videotape going that we can refer to, but it had to be2 in a process of preheat or ignition or may have been3 even burning. And that may be why he jumped off of the4 lift truck, because they were all burning in good speed5 by the time he got to the north/south aisle.6 MR. MARICLE: I'll object that your7 answer is nonresponsive.8 Q. (BY MR. MARICLE) In short, you don't know9 when the right front tire started burning. Correct?

10 A. My answer was -- is the best I can give you,11 sir.12 Q. I don't think you gave us an answer when it13 started burning. Do you know --14 A. I believe it started after it fell down into15 the secondary fuel package and it brought those tires to16 heat of ignition. I believe that at a point in time17 they were probably igniting and possibly burning, not18 visible to the driver, Cleo Wilson, until he got it out19 on that north aisle. And that's when he dismounted.20 That's the best I can give you.21 Q. Okay. What physical evidence do you have or22 what witness testimony do you have that establishes the23 right front wheel is on fire when Cleo jumps on that24 forklift? Do you have any? I don't think you do.25 A. I believe the physical evidence, it had to be

Page 239

1 on fire and heating up due to the fact that the hubcap2 came off.3 Q. We --4 A. And -- excuse me. And you didn't interrupt5 me. I need to add one other thing. The witness mark on6 the conduit and electrical wiring directly above; the7 fire had spread upward.8 Q. You testified yesterday that you've done no9 testing, you don't know how much heat has been to be

10 imparted into the metal hub, if that is, in fact, the11 hubcap to get it to separate from the hub. Correct?12 A. I can't give you a temperature.13 Q. Do you know how much heat would have to be14 imparted into the tire such that the tire is starting to15 give off vapors so that those vapors could be ignited?16 A. Your question is how much heat?17 Q. Yes.18 A. And heat is measured in temperature. I can't19 tell you the temperature.20 Q. So you don't know?21 A. I'm not going to tell you something I do -- I22 don't know, that's correct.23 Q. Okay. How long had the Hyster H80 been parked24 by the time Greg Charles says he smells something?25 A. There's -- 10 to 45 minutes is some range of

Page 240

1 times that have been placed out there.2 Q. Where do you get the 10 minutes from?3 A. From deposition reading. And I would have to4 go search all the deposition notes that I've taken to5 find it, but one of those guys -- and it may be Sando6 Anderson, it may be Cleo Wilson, and it may be Gregory7 Charles. Gregory Charles puts it higher in terms of8 time, so it wasn't him.9 Q. Okay. Do you think the person who has the

10 most accurate knowledge would be Cleo Wilson, who11 actually drove the forklift?12 A. He may have good recall. He may not have good13 recall. 10 to 45 minutes is what I'll put the range in14 there.15 Q. Okay. Your report of September 14th that's16 been attached to the deposition as I think Exhibit 417 expresses both an opinion on the origin of the fire, as18 well as the cause of the fire. Correct?19 A. It would.20 Q. Okay. Do you anticipate conducting any21 additional work on this matter?22 A. That will be entirely up to the client, sir.23 Q. Okay. Do you anticipate testifying as an24 expert witness if this matter does go to trial?25 A. Entirely up to the client, sir.

Page 241

1 Q. Do you know -- do you have an opinion as to2 the arc event that was found in the metal conduit3 occurred before the forklift was moved by Cleo Wilson or4 not?5 A. I believe it was moved -- excuse me -- it was6 formed in the stages before the forklift was moved.7 Q. Okay. You have testified that NFPA is a8 peer-reviewed document and that it contains the9 methodology that fire investigators use. Correct?

10 A. Whether I've testified to it or not, it will11 be a true statement.12 Q. Okay. Utilizing the scientific method, can13 the same data lead to different hypotheses?14 A. Utilizing the scientific method, all kinds of15 hypotheses do come up.16 Q. That's not my question, though. Can the same17 data produce the same hypotheses?18 MR. ROGERS: Objection. Form.19 A. And my same answer is if -- under the20 scientific method, the same data, that warehouse on21 Highway 509 can bring you to all kinds of hypotheses.22 Q. (BY MR. MARICLE) Okay. So you would agree23 with me?24 A. I agree with what --25 MR. ROGERS: Objection. Form.




8 (Pages 242 to 245)

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1 A. I don't know if I agree with you or not. I2 know that my answer was conforming to what I believed3 your question was, sir.4 Q. (BY MR. MARICLE) Okay. Then I'll rephrase my5 question.6 A. Please.7 Q. Isn't it true that data can lead to the same8 hypothesis or lead to other hypotheses under the9 scientific method?

10 A. Oh, yeah --11 MR. ROGERS: Objection. Form.12 A. -- it absolutely did.13 Q. (BY MR. MARICLE) Okay. Did you prepare a14 photo log in this case?15 A. No, sir.16 Q. Is it unusual for you not to prepare a photo17 log?18 A. No, sir.19 Q. The photographs that were identified and20 included in your report, are those photographs that you21 took, or are those photographs that your son took?22 A. And I stated yesterday that there's no23 differentiation.24 MR. MARICLE: Objection. Nonresponsive.25 Q. (BY MR. MARICLE) Can you tell us, of those

Page 243

1 photographs, whether you took them or your son took them2 or you can't tell?3 A. I can't tell.4 Q. Okay. What about the methodology changed in5 the 2011 edition of 921?6 A. What about it, sir?7 Q. I'm asking you, what about the methodology8 changed from 2011 from 2008?9 A. You'll have to be more specific. If it

10 affects the outcome of this fire, I would surely review11 it and let you know. But the methodology that you're12 held accountable to is -- the only one that you have is13 the guideline that was in effect. You can't use 201114 and selectively, as you said yesterday, choose which one15 you want to use. 2008 was in effect.16 Q. Okay. You talk about 921 is a peer-reviewed17 document. Would you agree with me that science does18 evolve?19 A. That's probably a good statement.20 Q. Okay. Or science advances?21 A. That's a better statement.22 Q. Okay.23 A. I don't like evolution, I guess.24 Q. So if a 921 committee made advances in the25 scientific methodology they applied to fire

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1 investigation in 2011, wouldn't you think you would want2 to know about that?3 A. The reason -- I mean, I'm not an ostrich. I4 don't have my head in the sand. The reason it wouldn't5 concern me is I have a methodology in 2008 that I use to6 look at that fire scene. I can't change horses in7 midstream and say, no, we're going to do it 2011. I8 don't know of one change, because I haven't reviewed it,9 but I don't know how they could have a change that would

10 change recognition, identifying and utilizing burn11 patterns to determine what caused that fire.12 Q. What is confirmation bias?13 A. Confirmation bias? I would think that that14 has to do with peer review, but I'm not sure.15 Q. Okay. So you don't know?16 A. I do not know for sure.17 Q. Okay. Did the 921 committee address bias in18 the current edition of 921?19 A. I would like to see it, sir.20 Q. Do you know if they did?21 A. I made a statement in answer form. I would22 like to see it if there is and see how it applies to23 this case.24 Q. Okay. Let me ask it this way. You don't know25 if they made a change with regard to bias in the 2011

Page 245

1 edition?2 A. I don't know one way or the other. And any3 bias ought to be taken out.4 Q. Looking at Exhibit No. 17, is there any way5 for us to determine when the damage that's reflected in6 that photograph occurred at any point in time because we7 know the fire burned for a number of days?8 A. Go ahead.9 Q. Okay. So can we tell when that damage

10 occurred?11 A. Number of days that that fire burned out there12 would not have any effect whatsoever on E9 or the13 cowling that's shown in Exhibit 17. It could still be14 burning down there with the protection that was afforded15 this side of the vehicle and, in particular, the cowling16 that Exhibit 17 has shown me. The raging fire within17 ours and such did not affect this unit; it -- excuse18 me -- this side of the unit. The Hyster 80 was affected19 by heat transfer and radiant heat from the east to west20 on the right-hand side. But this one was protected at21 the opposite side.22 Q. Did the Hyster H80 experience any heat23 transfer?24 A. Oh, yeah.25 Q. Did it experience any radiant heat?




9 (Pages 246 to 249)

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1 A. Every type, conducted, radiated, convection.2 It was subjected to all sorts of heat.3 MR. MARICLE: I'll go ahead and tender4 the witness at this point.5 MR. GREY: Why don't we take a break so I6 can get down there.7 MR. ROGERS: Sounds like a plan.8 THE VIDEOGRAPHER: We are going off the9 record. The time is 9:42.

10 (Break from 9:42 a.m. to 9:47 a.m.)11 THE VIDEOGRAPHER: We are on the record.12 The time is 9:47.13 EXAMINATION14 BY MR. GREY:15 Q. Good morning, Mr. Thornton. I introduced16 myself yesterday. My name is Franny Grey. I represent17 NACCO Material Handling Group in this case, the company18 that makes the forklift.19 A. Good morning to you.20 Q. I'll try not to be repetitive. I'm really21 sincerely not going to be repetitive if I can, so you22 have to apologize to me if I bounce around a little bit23 during this deposition. It's mostly because I'm trying24 to avoid taking up too much of your time with repetitive25 stuff.

Page 247

1 I want to talk to you a little bit about what2 you've done in this case because I was a little confused3 about a few things. Are you okay over there?4 A. Yes, sir. Go ahead.5 Q. All right. First and foremost, have you6 reviewed as part of your analysis in this case any of7 the Fire Department reports or Fire Marshal reports?8 A. There was a fire report, an incident report9 that said the -- yes.

10 Q. Okay.11 A. That's the only one.12 Q. Now with regard to the Fire Marshal reports13 and the Fire Department reports that you've read, have14 you read any of their conclusions about what caused or15 what was the origin of this fire?16 A. No, I have not seen that.17 Q. Okay. Are you aware that they contradict you?18 Are you aware that they say the forklift had nothing to19 do with this?20 A. No, I'm not.21 Q. Okay. In fact, sir, are you aware of anybody22 other than yourself -- and I'm not asking for your23 attorney's opinion, but anybody other than yourself24 who's reached a conclusion that this forklift had25 anything to do with this fire?

Page 248

1 A. Anybody else other than the team that I'm2 working --3 Q. Yeah, other than the team that's been paid by4 the lawyers in this case, are you aware of anybody5 that's reached a conclusion that this forklift had6 anything to do with this fire?7 A. I have not seen anybody else's report, so I8 couldn't -- I cannot say that I know that.9 Q. And with regard to the volunteers and

10 professionals who have nothing to do with this11 litigation, are you aware if any of them support your12 opinion that this fire was originated in the engine13 compartment of the forklift?14 A. I don't know one way or the other. Support or15 just disagree with me, I don't know one way or the16 other. I haven't read any reports.17 Q. Now your background is as a fireman. Correct?18 A. A fireman, firefighter.19 Q. Firefighter, yes, sir. And did you talk to20 any of the firefighters or fire volunteers that were at21 this scene?22 A. I've reviewed the deposition of Anthony Baker23 and I know what he said.24 Q. That's it?25 A. Yes.

Page 249

1 Q. You never talked to them personally?2 A. I think I talked to him out on the scene one3 time.4 Q. What did he tell you?5 A. I don't recall, sir.6 Q. Okay.7 A. At the point in time I'm talking about, we8 were trying to get together firefighters to secure the9 scene. We had -- Gabe Moreno had put a fence around it,

10 and I talked to the client, and I said I would rather11 have some people out there, and that's when I would have12 talked to him.13 Q. Okay. Do you know if he explained to you that14 he didn't think this forklift had anything to do with15 this fire? Did he talk to you about that?16 A. No, I never heard anything like that.17 Q. All right. I guess you would defer to his18 report on that issue, though, wouldn't you?19 A. I would like to see his report. I haven't20 seen it.21 Q. You've never seen it?22 A. No.23 Q. With regard to the people that were actually24 at this scene, okay -- and we're talking about Cleo25 Wilson, Evan Bowers and Gregory Charles -- you've read




10 (Pages 250 to 253)

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1 their depositions?2 A. Yes.3 Q. Okay. And I guess you were in a room at some4 point where at least Mr. Bowers and Mr. Wilson were5 sitting there. Is that correct?6 A. Correct, sir.7 Q. All right. Now Mr. Wilson, he flat out said8 this forklift had nothing to do with this fire, didn't9 he?

10 A. He didn't say anything.11 Q. Did you review his deposition in this case?12 A. Oh, I -- I thought you was talking about in13 the room.14 Q. No, no.15 A. Excuse me.16 Q. I understood that from yesterday. Did you17 review his deposition?18 A. I did.19 Q. Mr. Wilson said this forklift had nothing to20 do with this fire. Isn't that right?21 A. I read his deposition, and he --22 Q. And that's what he said?23 A. He says a loft stuff, and that's one of them.24 Q. That's what he says. Correct?25 A. Correct, sir.

Page 251

1 Q. Okay. Now you're not telling us today that2 you believe he's lying, are you?3 A. I don't find him to have as good a memory as4 he might like to think. I don't find him to be as5 credible as I would want as a witness. Whether he's6 lying or not, that will be up to y'all to figure out.7 Q. You recognize he's a minister. Correct? You8 recognize he's a man of the cloth?9 MR. ROGERS: Objection. Form.

10 Q. (BY MR. GREY) Do you understand that? You11 read his deposition.12 A. It has --13 Q. Did you read that?14 A. I realize it. It has no bearing whatsoever on15 the man.16 Q. Okay. Now how about Mr. Bowers? Mr. Bowers17 also said that this forklift had nothing to do with this18 fire, didn't he?19 A. I don't know that. I don't recall him saying20 that in those words.21 Q. What do you recall him saying?22 A. I'd have to go back over the deposition and23 read it. If you'll tell me a line or so, we'll read it24 together and see where he says what you're saying he25 said. I don't know that.

Page 252

1 Q. Mr. Thornton, we're taking your deposition to2 get ready for trial. You've been an expert witness for3 a long time. You know this drill? Correct? You've4 been through this before.5 A. Yes.6 Q. Okay. So you know when you come in here, I'm7 going to be asking you questions about the witnesses8 that you told us were pretty important to the evaluation9 of the fire cause and origin. And my question is before

10 you go reading depositions -- because I don't have a lot11 of time today. My question to you is, do you remember12 if either Mr. Bowers or Mr. Wilson concluded this13 forklift had nothing to do with the fire?14 A. And, again, if you don't want me to review and15 give me a page and a line or I'll find the page and16 line, I'll just answer I don't recall ever hearing that.17 Q. I was really hoping you would be ready to talk18 about these things today. So --19 A. I am.20 MR. ROGERS: Object to the form of the21 question.22 A. I have everything I need.23 Q. (BY MR. GREY) Why don't we move on.24 A. Move on.25 MR. ROGERS: It's argumentative.

Page 253

1 Q. (BY MR. GREY) Other than Mr. Charles, who is2 the only guy still employed by the people that are3 funding this litigation, can you point to anybody who4 said this fire started anywhere near the engine5 compartment of the forklift, as you sit here today?6 MR. ROGERS: Objection. Form.7 A. I'm not aware of anyone that agrees or8 disagrees with me other than what I've read in the9 depositions, and we've pretty well talked about it here

10 early.11 Q. (BY MR. GREY) I understand. So the answer to12 my question is you can't point to anybody else?13 MR. ROGERS: Same objection.14 Q. (BY MR. GREY) Right?15 A. That agrees with me?16 Q. Yeah.17 A. Other than people on the team, I have no18 knowledge, and Greg Charles.19 Q. Just so we're all clear, right -- I'm from20 Philadelphia, so I'm not familiar with all the teams21 down here -- who's the team?22 A. The team that was hired by Brown Dean. And23 that would be myself, Forest Smith, Robert Friedemann;24 Fred Mowrers is on the team. I hope I'm not leaving25 anybody out.




11 (Pages 254 to 257)

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1 Q. That's fair. They're the ones you remember?2 A. That's the ones right now, yeah.3 Q. Let me talk to you a little bit about your4 background. I want to make sure I understand a few5 things. Are you a trained and certified forklift6 operator?7 A. No.8 Q. Have you ever been a trained or certified9 forklift operation?

10 A. No, sir.11 Q. Did you ever drive a forklift for a living?12 A. Oh, no.13 Q. Did you ever own a forklift?14 A. I had a lift truck, but it's not anything like15 this. It was a walk behind.16 Q. Oh, a walk behind. That's fine.17 A. Yes.18 Q. Have you ever owned a sit-down counterbalanced19 forklift?20 A. No.21 Q. Have you ever been responsible for the service22 or maintenance on any type of sit-down counterbalanced23 forklift?24 A. No kind of contact with them other than -- I25 mean, as a driver, operator, or anything else.

Page 255

1 Q. Other than when you got to this fire scene,2 had you ever seen, to your knowledge, a Hyster H80 FT3 forklift?4 A. I didn't have any recollection of seeing one5 at all.6 Q. Do you have any background, sir, in terms7 of -- and I think I know the answer. I just want to8 make sure I ask you.9 A. It's fair.

10 Q. Do you have any background, sir, in the design11 of production forklifts?12 A. No, sir.13 Q. Did you ever have any input or professional14 experience with designing any component that's used on a15 production forklift?16 A. No, sir.17 Q. Do you consider yourself to be an expert in18 forklift design?19 A. I'm not a designer or expert in any way.20 Q. Okay. And you're not an expert with regard to21 the service or maintenance of production counterbalanced22 forklifts. Is that fair?23 A. That's very fair.24 Q. Now in your report, which I think was marked25 as Exhibit 4 -- bear with me. Yeah, Exhibit 4, in your

Page 256

1 report, you offer no criticisms at all of the design or2 manufacture of the Hyster H80 FT. Correct?3 A. No, I don't have any idea how to do that.4 Q. So you don't. You don't criticize it in any5 way --6 A. No.7 Q. -- the forklift?8 A. If there's criticism on our team, it would be9 from Friedemann.

10 Q. Okay. And did you read Mr. Friedemann's11 report?12 A. I can't find it in my files that I had it.13 But I've had the report. And I briefly read it. The14 main thing I was looking at was the temperatures.15 Q. Okay. And that's all he did in this case, in16 terms the of the report we've seen.17 A. I don't know.18 Q. Okay. Do you know if he offers any criticism19 of the design or manufacture of this forklift?20 A. It would be best asked to Bob.21 Q. That's fair. As far as you sitting here22 today, you don't know?23 A. I have no idea.24 Q. Do you intend to offer any opinions addressing25 the design or manufacture of this forklift --

Page 257

1 A. No --2 Q. -- at trial?3 A. -- I do not.4 Q. Have you ever read the operator's manual?5 A. No.6 Q. Have you ever read any material related to the7 function and design of the Hyster H80 FT?8 A. No, sir.9 Q. With regard to the H80 FT, do you know when

10 that forklift was actually manufactured, when it went11 out the door, so to speak?12 A. No, sir.13 Q. Do you know how many hours of usage that14 forklift had at the time of this fire?15 A. No, I do not.16 Q. Do you know when it was actually delivered17 from Deep South to Tango relative to the fire?18 A. There is a ticket in the file from Deep South,19 and off memory, I won't try to tell you. Don't want to20 waste your time looking it up.21 Q. So you don't know?22 A. I've answered the question. In my memory, no.23 Q. Okay. Do you understand it was a rental?24 A. Yes.25 Q. Okay. With regard to that forklift, do you




12 (Pages 258 to 261)

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1 know anything about the H80 FT's maintenance history?2 A. No.3 Q. Do you know if there were any problems with4 this forklift over the ownership period that this truck5 was being used as a rental? Do you know if there was6 any problems?7 A. Problems that I know of I will tell you about.8 The hydraulic system is -- not the system -- but9 hydraulic lines will burst.

10 Q. Okay.11 A. That's not a problem, as I see it, other than12 normal wear and tear. The problem of the unit is that13 it does have a tendency to vacuum the floor -- and14 that's my terminology -- when you drive over it if it15 don't have the paper application kit. That minimizes16 it. But as far as problems with the unit, I don't know17 of anything else.18 Q. Okay. Now with regard to -- let's break those19 down. With regard to the hydraulic system --20 A. Yes.21 Q. -- describe for me what you're talking about.22 What problems were they having with this forklift at23 Tango at the time of the fire?24 A. I don't see it as a -- I just want to make25 sure we get it in, that it is a problem of normal wear

Page 259

1 and tear. A hydraulic line bursts, and it's reported2 that day before. They replaced a lift -- excuse me -- a3 hydraulic hose --4 Q. Okay.5 A. -- just in passing. It doesn't affect how6 this fire started.7 Q. Understood. The specifics, as I understand8 what's been described, is that there were -- relative to9 the usage of all the forklifts at Tango, there were

10 occasions where they lost a hydraulic hose or a11 hydraulic line?12 A. I think that's a fairer statement than I've13 made, yes.14 Q. That's fair. All right. I just want to make15 sure we're on the same page.16 A. Yeah.17 Q. Once those hoses went, Tango or the people at18 the warehouse were making the fixes themselves; they19 were actually replacing the hydraulic hoses. Is that20 fair?21 A. It appears to me that they were, yes.22 Q. And your understanding is that there was at23 least one occasion where the specific truck involved had24 a hose that was replaced by the people at the warehouse?25 A. That is my understanding.

Page 260

1 Q. Now in terms of the operational performance,2 if we take the hose breaking out of it, just in terms of3 day-to-day usage with this truck, are you aware of any4 problems that they were having with the function and5 performance of this truck?6 A. Sitting here right now, I don't know of a7 thing.8 Q. Nothing chronic that you're pointing to, as9 far as being indicative of something important in this

10 case. Is that fair?11 A. If it was chronic, I believe I would have12 known something about that, but no, there's nothing13 there.14 Q. Now in terms of this H80 FT, do you know what,15 if any, options the truck was actually ordered with?16 You said earlier the paper package. I'm going to talk17 to you about that. It did not have a paper package.18 Correct?19 A. Yeah. Do I know of any --20 Q. Options.21 A. -- options that were requested?22 Q. Yes.23 A. I don't know of any options that was24 requested. They wanted a lift truck.25 Q. Do you know -- do you know what options were

Page 261

1 ordered at the time the H80 FT was built by NACCO?2 A. I don't know of any.3 Q. When this truck was ordered, do you know --4 ordered to be manufactured by my client, NACCO, do you5 know who, in fact, ordered it?6 A. I'm going to answer the question the best as I7 understand it. I believe that Deep South purchased it8 from NACCO, Hyster to me. Okay?9 Q. That's fair.

10 A. That's my understanding.11 MR. GREY: Bless you.12 MR. MARICLE: Thank you.13 Q. (BY MR. GREY) Were you personally ever14 responsible for ordering a forklift and deciding what15 options you wanted on that forklift?16 A. No, sir.17 Q. Do you have any familiarity with the OSHA18 regulations, 1910.178 specifically?19 A. I don't know what you're talking about, sir.20 Q. Okay. That's fair. Are you familiar in any21 way with ANSI B56.1?22 A. No, sir.23 Q. Now once this truck was rented -- and I guess24 we can assume -- I know you have the rental slip. So it25 was there for some period of time. I know you told me




13 (Pages 262 to 265)

Page 262

1 you don't know specifically. But it was there for some2 period of time before the fire. Fair?3 A. I don't know, but it's in my notes and I can4 pull it up if you'll give me time. But you don't want5 to do that, so go ahead.6 Q. Go ahead. That's fine.7 A. It's not important to me.8 Q. Oh, it's very important. Go ahead. Tell me9 how long this truck was in use.

10 A. It appears that it was sent out on 12/18/09.11 Q. The accident's 1/7/10?12 A. I'm sorry?13 Q. The fire is 1/7/10?14 A. That's correct, sir.15 Q. A little under three weeks. About right,16 three weeks?17 A. I'll take your figure, sir. That's fine.18 Q. Now during the time that this forklift had19 been rented by Tango, what did they use it to do?20 A. The lift truck was purchased to load and21 offload bales of paper, of different qualities of paper,22 but paper that are baled.23 Q. How many hours a day was it used?24 A. They had two shifts and they ran 24/7, and25 whatever the truck quantities to be loaded or unloaded,

Page 263

1 they used it during those 24/7's.2 Q. Now this forklift, like any forklift, has3 what's called a capacity. Do you understand that?4 A. Capacity?5 Q. Yes.6 A. Will you explain it?7 Q. Sure. The truck can only lift so much weight?8 A. That's what I thought you were saying. I9 would expect that, yes.

10 Q. Okay. Now these bales that it was moving 24/711 at Tango, how much did they weigh?12 A. I read in a deposition 3,500 to 5,000 pounds.13 Q. And you mentioned this yesterday, it is your14 understanding that on a daily or per shift basis -- let15 me ask it this way. Strike that.16 How often on a given day -- I know there's two17 shifts -- was the forklift supposed to be inspected to18 fill out the checklist you referenced before?19 A. The preshift and postshift. That's two times20 for each shift and some during the midshift, but no form21 was filled out.22 Q. As needed, so to speak, in midshift?23 A. That's what -- yes, that's good wording.24 Q. Now from your perspective, these inspections,25 do you believe that they are related to safety, that

Page 264

1 they are safety related?2 A. They would relate to safety and operation of3 the truck, yes.4 Q. And why are they related to safety, from your5 perspective?6 A. From my perspective, the safety aspect is the7 heat production causing a fire.8 Q. And that's all the forklifts out there; not9 just this 80?

10 A. Yes.11 Q. Correct?12 A. The inspection was blanket the whole thing,13 yes, sir.14 Q. So it's important from a safety perspective to15 make sure that these forklifts are maintained the right16 way and kept in a functional operating condition.17 Correct?18 A. Safety and function, yes.19 Q. It's important?20 A. Yeah, I think so.21 Q. Do you know if the 80 had been rented before22 to Tango, before this particular stretch in December23 through the fire in January?24 A. I'm not sure.25 Q. Okay.

Page 265

1 THE WITNESS: While you're looking, I2 would like to go off the record a second.3 MR. GREY: Yeah. Sure.4 THE VIDEOGRAPHER: We are going off the5 record. The time is 10:06.6 (Break from 10:06 a.m. to 10:07 a.m.)7 THE VIDEOGRAPHER: We are on the record.8 The time is 10:07.9 Q. (BY MR. GREY) One of the aspects of the

10 inspections that were going on out at Tango with all the11 forklifts, including the 80, included them, the12 operators -- I think they referred to it as blowing out13 the engine compartment?14 A. That's the terminology I've heard, yes.15 Q. And they use that compressor? They used an16 air compressor?17 A. Yes, sir.18 Q. And that was down, I guess, south of where19 ultimately the 80 was found following the fire. Is that20 correct?21 A. Just a little bit south. There's the -- it's22 that number 16 trailer dock, and that's about where --23 15 and 16 is where it was located.24 Q. Now what was the purpose of blowing the trucks25 out? Why did they use the compressor to blow this




14 (Pages 266 to 269)

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1 out -- these out?2 A. At least twofold. To clean the radiator to3 prevent overheating, it's my understanding. If it4 overheated, there was a shutdown operation. It would5 just shut down and wouldn't operate. And accumulation6 of that loose paper on the manifold, on the whole engine7 compartment, and as one guy said -- and I believe it was8 Gregory Charles -- we blew down the whole lift truck.9 So we're working in a dusty, paper-filled atmosphere.

10 Q. And in that type of atmosphere, I don't think11 there's any issue here, Mr. Thornton -- in that type of12 atmosphere, if you're picking up loose paper as you13 operate these forklifts, if there's debris and dust, I14 think you referred to yesterday, getting into this15 engine compartment, I don't think there's any dispute,16 but you agree that it's critical for the operators and17 the people responsible for the operators to keep their18 trucks in good running condition, and that includes19 cleaning out the stuff that may get into these engine20 compartments?21 A. Yes.22 Q. Okay.23 A. To clean it out is important.24 Q. And as part of that, if there are25 circumstances where for one reason or another you may be

Page 267

1 picking up more debris on a given shift than you do2 normally, you need to stop and clean it out as often as3 is required. Is that fair?4 A. Can you break your question down --5 Q. Sure.6 A. -- a little bit, please?7 Q. Sure. We all know that on the day of this8 particular incident, there was the divergence --9 A. I see where you're coming from. Go ahead.

10 Q. And all the operators that have been talked to11 in this case and -- all of them, everybody said it was12 extremely busy that night. Fair?13 A. Yes.14 Q. Okay. That's no excuse for not taking care of15 your forklift?16 A. I don't think it is.17 Q. Same kind of topic. At Tango where the H8018 was used on the second rental, the time period we're19 talking about --20 A. Yes.21 Q. -- there was -- I don't think there's any22 dispute, there was loose paper on the floors?23 A. I believe you're right, yes.24 Q. On the night of this particular incident, I'll25 focus you up there.

Page 268

1 A. Yeah.2 Q. Based on what you've read and what you've3 heard, can you quantify the amount of paper that was on4 the floor that night?5 A. I can't quantify it, no.6 Q. Would you say it was a substantial amount?7 MR. ROGERS: Objection. Form.8 A. That would be quantifying, so I couldn't -- I9 can't quantify.

10 Q. (BY MR. GREY) Well, let me do it this way, to11 be fair to me.12 A. Yeah, please. Please, by all means.13 Q. I think what you said yesterday was that it14 was your understanding that when Mr. Wilson went, pulled15 this truck into aisle D and then got off, I think you16 said yesterday he had to lift up his clamp about 2, 317 feet up.18 A. Yes, he did.19 Q. Okay. And I think you said yesterday he had20 to do that because there was basically piles of paper on21 the floor that were high enough that he had to clear the22 clamp to get in there?23 A. That's correct, sir.24 Q. All right. So if there's 2 to 3 feet of paper25 on the floor, is that a lot of paper?

Page 269

1 A. Let me -- that would be -- the floor is the2 floor, but the floor is also cells and aisles, so we3 need to break that down to where --4 Q. Let's see if we can do it this way. In the5 area where he parked the truck, there's a substantial6 amount of paper on the floor?7 A. And that's why I differentiate. In the floor8 of D1, the cell -- when they broke a bale, they were9 putting it in there, so loose paper was in there, yes.

10 Q. A lot of loose paper in there, in D1, to quote11 you. Fair?12 MR. ROGERS: Objection. Form.13 A. A lot, he had to raise it 2 to 3 feet to drive14 it in, yeah.15 Q. (BY MR. GREY) All right. Is this table 2 or16 3 feet high?17 A. It's probably 32 inches, I think, or some18 sort.19 Q. I don't spend all that much time in paper20 warehouses, but that seems to me to be a lot of paper.21 Correct?22 A. I can't quantify it as a lot. I don't know,23 because you've got areas of use. And so next to it was24 12-foot of bales. So a lot is a lot. What --25 Q. Now you talk about in your report -- just




15 (Pages 270 to 273)

Page 270

1 still trying to deal with this quantification of the2 paper. In your report you talk about the fact that3 these trucks, these forklifts -- I use the word truck4 sometimes.5 A. It's good.6 Q. So if you don't understand me, just tell me.7 These forklifts are running up and down the aisles 24/78 in this facility. Correct?9 A. That's right.

10 Q. And over time, in your report you talk about11 the fact that the paper that was on the floor would be12 chewed up. It would get torn into strips and pieces.13 Correct?14 A. Uh-huh. Yes, sir.15 Q. And it would also get ground up into paper16 dust, I think you referred to in your report as well?17 A. I believe that, yes.18 Q. So at least we can agree to the fact that19 there's enough paper on the floor during normal20 operations of the Tango facility at the time of this21 incident that there is paper being chewed up and paper22 being ground into dust?23 A. That's -- that's the way I see it.24 Q. Okay. Now the people at Tango understood that25 they had paper on the floor. Correct?

Page 271

1 A. They should realize it more than me and you.2 I would hope they know it.3 Q. All right. Do you believe that the people at4 Murphy understood there was paper on the floor?5 A. I don't differentiate Tango, Murphy and all6 that.7 Q. Okay. That's fair. That's a good --8 A. The people at the warehouse --9 Q. Knew?

10 A. -- is just all I call it.11 Q. Now with regard to the rental of the H80, do12 you know what Tango asked for in terms of the type of13 truck they wanted?14 A. No, I don't know.15 Q. Now we were talking about the H80 and we were16 talking about the maintenance procedures. And I'm going17 to move to another topic, but before I do, I'm going to18 ask you some questions about that. We talked about19 blowing the truck out. We talked about keeping the20 engine compartment of all these different trucks clean.21 With regard to the H80, have you reached any conclusion22 as to whether if the H80 had been properly maintained it23 would pose any risk of a fire in that facility?24 A. Properly maintained meaning what?25 Q. You cleaned out the engine.

Page 272

1 A. Okay. And with an exposed, unprotected2 exhaust system. Correct?3 Q. Yes.4 A. I believe it posed a problem.5 Q. Even if it was cleaned out?6 A. Yes, even if it's cleaned out, it could cause7 a fire.8 Q. If it had been cleaned out the night of this9 incident, would this fire have occurred?

10 A. Cleaned out and set aside, yes -- I mean, no.11 Cleaned out and used, there's a new accumulation at all12 times.13 Q. What is --14 A. I need to -- excuse me. And you didn't15 interrupt me. At all times of use. If you're just16 sitting there, it's not going to generate any suction by17 movement or fan blade that would have caused a lift of18 the papers on the floor. That's a continuing action.19 Q. Okay. Now you've never driven a forklift.20 Correct?21 A. No.22 Q. Okay. And there were no -- there was no work23 done to determine how much paper or whatever got pulled24 into any of the engine compartments of these trucks.25 Correct?

Page 273

1 A. I don't know of any.2 Q. All right. Did you look at the 90s, the two3 H90s?4 A. I looked at them, but --5 Q. Was there paper in the engine compartment of6 those trucks?7 A. They was burned, so I couldn't tell you.8 Q. What is the paper package?9 A. The paper package, as I understand it, has to

10 do with on the area of the radiator itself there's a11 screen that can be removed for cleaning. Stainless12 steel exhaust systems have been recommended as preferred13 for longevity of life due to the fact that you're going14 to wrap them with this insulating shield, barrier or15 whatever. You're going to hold that heat in now. So16 it's going to eat up a normal exhaust manifold. And17 that's the extent of it that I know.18 Q. All right. So basically you understand19 there's a screen on the radiator?20 A. Yes, sir.21 Q. And they wrap the manifold and parts of the22 muffler. Is that fair?23 A. And -- and possibly you've got to replace the24 exhaust system with a stainless steel. That's --25 Q. Okay.




16 (Pages 274 to 277)

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1 A. -- if it didn't come with it.2 Q. Do you understand that they add additional3 vents?4 A. I forgot that. Yes.5 Q. Okay.6 A. At the cowling area that I've been referring7 to -- thank you for reminding me -- the vents to break8 that suction from the floor.9 Q. Under what circumstances is the paper package

10 recommended by NACCO, the company that makes Hyster and11 Yale forklifts?12 A. I can't tell you that. That would be Bob13 Friedemann to cover that for me.14 Q. Do you have any criticism of the paper package15 design in terms of the components that they use?16 A. I'm not a design engineer, so whether it could17 be fixed better or not, possibly Bob could answer you18 that, sir.19 Q. Have you done any analysis of the20 effectiveness of the paper package in a loose paper21 environment like this?22 A. Just in my own logic, that kind of analysis.23 Q. Is what?24 A. That if you break that suction with what you25 reminded me of, the vent system, then you're going to

Page 275

1 lessen the amount of draw from the floor. As you drive2 down the floor, it stirs it up. You've got a vacuum3 effect. You're going to lift the paper good. The4 design of putting something, a shield over that exhaust5 manifold -- whether it's stainless steel or regular6 steel doesn't enter my mind except that I understand the7 longevity can be extended with stainless steel. The8 placement of the dust collector type screen all sounds9 like a good idea to me.

10 Q. Okay. Now how many trucks in the Tango11 facility actually had the paper package at the time of12 this fire, offered by NACCO, that paper package?13 A. Well, I know of the 90, sitting here right14 now.15 Q. How many 90s did they have with the paper16 package?17 A. They may have two out there --18 Q. All right.19 A. -- but the one that I'm referring to, sir, is20 at the south end that was driven by Gregory Charles.21 Q. All right. Was the H90 with the paper package22 at Tango safe for use in that environment?23 A. I think it was safer and probably as safe --24 and that will be a design question that Bob Friedemann25 should answer better than I can. I believe it's safer.

Page 276

1 Q. Okay. Do you believe this fire could have2 been caused by either of the H90s under similar3 circumstances? Have you analyzed that?4 A. Similar circumstances meaning --5 Q. Meaning they parked the 90 there instead of6 the 80?7 A. Less likely. Highly unlikely.8 Q. So you agree it would have reduced the risk?9 A. Yes.

10 Q. Who owned the 90s?11 A. Best of my recollection, the warehouse people12 owned the 90s.13 Q. So Murphy?14 A. The warehouse people is all I break it up --15 Q. Tango?16 A. Tango, Murphy.17 Q. All right. How did they become aware of the18 existence of the paper package when they purchased the19 90s?20 A. I do not know, sir.21 Q. Were the 90s still in use at the facility when22 you went out there to do your inspection? Were they23 still driving the one that wasn't involved in --24 A. The one out on the pad, the OC -- OCC --25 excuse me -- was still operational.

Page 277

1 Q. Do you know what other material handling2 equipment they -- they, Tango, has begun to use out3 there?4 A. Become to use?5 Q. Since the fire, they started using a different6 truck. Do you know what that truck is?7 A. No, I have no --8 Q. All right. Did you see a Taylor truck when9 you were out there?

10 A. I haven't seen it.11 Q. Okay. Do you know if the Taylor truck has a12 wrapped manifold?13 A. I don't know anything about it.14 Q. All right. Now the H90 that was driven by15 Mr. Charles, that was involved -- strike that -- that16 was damaged as well in this fire. Correct?17 A. Yes.18 Q. Bear with me. This is -- Mr. Thornton, this19 was previously marked as Exhibit 16. And is that a20 picture of the 90?21 A. Yes, sir, it is.22 Q. Okay. Now when you're looking at the23 forklifts involved in this, the 80 and the 90, is one of24 the ways you're able to tell right away which one's the25 90 because of the difference, that they have vents on




17 (Pages 278 to 281)

Page 278

1 the side of the cowling?2 A. That's the obvious difference.3 Q. Okay. So you could look at it and see that4 there's vents on the side of the cowling on the 90 which5 aren't there on the 80?6 A. That's what I have learned. I'm not -- I'm7 not a forklift designer, but that's the first indicator.8 Q. Okay. Now with regard to the fire damage9 that's shown here on this H90 in Exhibit 16, as I

10 understand it, from your perspective, all of that damage11 was from the fire going outside in, if you would?12 A. Result of the fire, not the cause of the fire,13 and it's external heat damage to the forklift.14 Q. Okay. Now in the engine compartment, was15 there damage to the H90?16 A. There would be some heat stress damage, but17 nothing that would be comparable to a fire that started18 in there.19 Q. Did you take any pictures of the H90, of the20 engine compartment?21 A. I don't have them in my mind right now. I22 don't even know if we lifted the hood on that at that23 time.24 Q. Okay. Would that be something interesting to25 you, to see what the damage was to the 90 engine

Page 279

1 compartment compared --2 A. Let me review my files --3 Q. Sure.4 A. -- I mean, photos right quick and see.5 MR. GREY: I was saying am I talking too6 fast.7 MR. ROGERS: Not too bad for a Yankee.8 THE WITNESS: We listen slow.9 MR. GREY: That's a good answer.

10 THE WITNESS: Too many Aggies in the11 room. You have to slow it down on us.12 MR. GREY: Actually, the funniest thing,13 if you ever have like 10 minutes to kind of giggle about14 stuff, if you go back and YouTube --15 MR. ROGERS: Are we off or --16 MR. GREY: I think we're off.17 THE VIDEOGRAPHER: We're on the record.18 MR. GREY: Oh, we can go off.19 MR. ROGERS: We'll wear her fingers out.20 Should we go off for a minute while he does that?21 MR. GREY: Why don't we go off for a22 second.23 MR. ROGERS: We can enjoy ourselves.24 THE VIDEOGRAPHER: We are going off the25 record. The time is 10:25.

Page 280

1 (Break from 10:25 a.m. to 10:27 a.m.)2 THE VIDEOGRAPHER: We are on the record.3 The time is 10:27.4 Q. (BY MR. GREY) Mr. Thornton, when we took our5 break, you were going to look to see if you found any6 pictures of the engine compartment of the 90 involved in7 the fire shown in Exhibit 16. Any luck?8 A. I did not take any pictures before it was9 taken to the warehouse or afterwards.

10 (Exhibit 18 marked.)11 Q. (BY MR. GREY) I want to talk to you a little12 bit about some of the things you discussed in the13 deposition yesterday and a little bit this morning. I'm14 going to show you what I marked as Exhibit 18. I15 believe this is a drawing that you prepared. It looks16 like it's dated September 24th -- I'm sorry. You17 created it on September 26th of 2012. Do you recognize18 that?19 A. Yes.20 Q. Okay. And just what is that?21 A. It's the first draft of the -- one of the22 first drafts of getting our hand-drawn notes put into23 AUTOCAD.24 Q. Okay.25 A. And I differentiate it as a draft.

Page 281

1 Q. Well, is it generally accurate?2 A. Generally is a broad term. I've got -- and3 you have an update that would be more accurate. I4 pulled everything but that. If I can just correct it on5 your paper there, and you have it in the -- in the file6 that's been produced. The error, okay --7 Q. Yeah.8 A. -- is when my AUTOCAD guy was putting the9 hubcap E18 in, I told him the measurements, and it was

10 22 inches away from here, the light fixture. He11 misunderstood me and put it on the west side. The12 hubcap is not in the right place.13 Q. Ah.14 A. It's on the east side.15 Q. All right. I understand. So within -- I16 think I understand, Mr. Thornton. Exhibit 18 here, this17 is the -- actually the purpose I wanted to talk to you18 about.19 A. Go ahead, sir.20 Q. The hubcap that's shown here on 18 should be a21 little less than two feet -- I guess it would be east of22 where it's shown in this. Is that correct?23 A. That's correct. Yes, it is east.24 Q. All right. Now my question, though, is just25 generally speaking, this Exhibit 18 shows the at rest,




18 (Pages 282 to 285)

Page 282

1 if you would, position of the forklift following the2 fire and gives us an idea of the approximate location on3 Exhibit 18, within the 22 inches you described, of where4 this hubcap was. Correct?5 A. That's right.6 Q. All right. Now at the time that the fire7 originated, is what I want to talk to you about. At the8 time the fire originated, it's my understanding from9 your testimony that that hubcap came off the right front

10 set of dual tires on this truck. Correct?11 A. That's my opinion.12 Q. All right. So that would give us an13 approximate position of the right front dual tires when14 this fire started?15 A. Correct, sir.16 Q. All right. Now at that point, the forks on17 this forklift would be facing east?18 A. That's correct, sir.19 Q. They would be facing toward the top of20 Exhibit 18.21 A. Right.22 Q. Right?23 And the rear end of the forklift would be24 facing toward what was the office area?25 A. And west, yes.

Page 283

1 Q. And west. Okay.2 MR. GREY: Now go ahead and mark this.3 Put it on the corner here.4 (Exhibit 19 marked.)5 Q. (BY MR. GREY) This is Exhibit 19. This is a6 picture -- I think it might be already used already, but7 I just wanted to show it to you. In the orientation of8 the forklift as it is -- as you just described it on9 your drawing 18, your draft drawing 18, if the fire

10 originated outside of the forklift up by the left side11 of the clamp apparatus, given the predominant wind12 direction, which is out of the north, northwest, that13 fire would be driven in the exact pattern that's shown14 there on Exhibit 19. Is that correct?15 A. Rather lengthy. Can you break that down?16 Q. Sure. Forklift is facing east, wind is17 blowing north, northwest.18 A. In this photograph --19 Q. Sure.20 A. -- it's facing north.21 Q. I understand that. I got you.22 A. Okay. Excuse me.23 Q. John, I understand that's a post fire24 photograph.25 A. Yes.

Page 284

1 Q. The forklift has been moved.2 A. Good.3 Q. My hypothetical to you is, put the forklift in4 the position you just described on Exhibit 18. The5 clamp is facing east.6 A. Okay.7 Q. Okay. The wind is blowing from the north,8 northwest.9 A. Good.

10 Q. My question to you is, if the fire started up11 by the clamp in the paper that was pushed up there,12 according to some of the witnesses, the fire started up13 in that area, which would literally be the left side of14 the mast up by the clamp, given the predominant wind,15 north, northwest, the fire pattern that is shown there16 is exactly what one should expect. Correct?17 A. I don't agree.18 Q. Why not?19 A. Using 18, Exhibit 18 and 19, I'll explain.20 When you place the hubcap proper in an area past the21 light, that places the lift truck more to D1, which is22 an empty cell used to dump loose paper when they broke23 bales. Okay. Now -- and he's parked here. And you24 were saying someone pushes paper up against it and25 causes the fire there?

Page 285

1 Q. Let me break it down again.2 A. Please.3 Q. My only question to you is, if the fire4 started outside of the truck --5 A. Yeah.6 Q. -- which is facing east and the wind is7 blowing north, northwest, the fire pattern that is shown8 on Exhibit 19 is exactly the fire pattern that should9 result?

10 A. And you have the fire starting at the mast11 area?12 Q. Up there, yeah. Yes.13 A. No.14 Q. Why not?15 A. That's what I was trying -- I thought that was16 your question previous.17 Q. No. I'm just asking you.18 A. Why not?19 Q. It's a pretty simple question.20 A. Okay. Because --21 Q. If you light a fire in front of this22 forklift --23 A. Yeah.24 Q. -- and blow the wind north, northwest,25 forklift facing east, the fire pattern that's shown




19 (Pages 286 to 289)

Page 286

1 there is exactly the type of pattern that would result?2 A. And my answer was no and because now, right?3 Q. Go ahead.4 A. Because the fire would have had to have5 tracked backwards getting into the engine compartment6 causing damage to this -- this portion of the cowling7 that's shown in 19, the left side of the driver's seat8 cowling area. The burn pattern extending out of the9 engine compartment is evidenced by the damage to the

10 fiberglass that's shown in other photographs. The11 damage shown to the seat and the aluminum housing and12 the aluminum -- yeah, the aluminum housing of the13 alternator is melted. There would be no reason -- if14 you start the fire exterior, external to this lift truck15 by any motion you want, dragging, friction of any sort,16 the fire would have had to come against the wind into17 the lesser conglomeration -- collection of paper when it18 has a choice to go with the wind and up that mound of19 paper that's in front of the lift truck, including the20 loose paper and all the piled bales.21 Q. I'm going to draw something on Exhibit 19 to22 see if we can orient ourselves, because maybe I'm a23 little confused about your wind direction. Okay?24 A. Uh-huh.25 Q. So bear with me.

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1 MR. ROGERS: I think there's an issue2 there.3 MR. GREY: Do you want me to mark another4 one? I'll mark another one.5 MR. ROGERS: Let's go off for a minute.6 It's probably time for a break anyway, and then we can7 just go over that and make sure we're on the same8 page --9 MR. GREY: Sure.

10 MR. ROGERS: -- with what north wind11 means.12 THE VIDEOGRAPHER: We are going off the13 record. The time is 10:36.14 (Break from 10:36 a.m. to 10:49 a.m.)15 THE VIDEOGRAPHER: We are on the record.16 The time is 10:49, and this is the beginning of tape 2.17 (Exhibit 20 marked.)18 Q. (BY MR. GREY) Mr. Thornton, just real quick,19 some housekeeping. I kind of messed up. You were kind20 enough to give us a drawing that we've marked as21 Exhibit 20, but before we realized you had that before22 me, which I appreciate, I had drawn on our original23 Exhibit 18. We got another copy of that drawing which24 is the one with the hubcap 22 inches in the wrong place.25 And I just want to make sure, are you okay that we've

Page 288

1 marked that as Exhibit 18 now?2 A. That's fine.3 Q. All right. You gave us Exhibit 20, which is4 another one, I believe, of your drawings. Is that5 correct?6 A. Yes, it's been created by us.7 Q. All right. And what does that drawing show?8 A. A better placement and proper placement of the9 Hyster 90 in the aisle D -- between D1 and D2, facing

10 that easterly direction.11 Q. Just real quick. You said Hyster 90. It's12 the Hyster 80?13 A. Thank you very much. 80. 80.14 Q. It's the 80. All right. So this would be --15 Exhibit 20 shows, based on the drawings and your finding16 of evidence at the scene -- you positioned the Hyster 8017 in aisle D in the position you believe it would have18 been in or as close as you could get it when the fire19 started. Is that fair?20 A. Based on best evidence, that's what we got,21 yes.22 Q. All right. Now with regard to this drawing,23 if you could with a pen, could you just draw an arrow24 relative -- you don't have to draw it through the25 forklift, but just relative to the position of the

Page 289

1 forklift an arrow showing the predominant winds at the2 time that the fire initiated.3 A. The -- and I'll draw it on the lower corner in4 close proximity to the Exhibit 20 mark. The direction5 is north and the wind was from a north, northerly6 direction, best estimates.7 Q. Okay. North to northwest, I think you said8 yesterday. Do you recall that?9 A. I may have said that, yes.

10 Q. All right. Okay. So it would have literally11 been blowing, as I understand your drawing, just for12 descriptive purposes, toward the left side of the13 forklift as it was parked in aisle D?14 A. To the left side.15 Q. Relative to the driver.16 A. The driver's side. It would have been blowing17 across that area. As it channelled down this18 north/south aisle, that would be proper.19 Q. Okay.20 A. And expected wind.21 Q. And I think you said this yesterday, how hard22 was this wind blow?23 A. From 16 to 20 something miles an hour, based24 on Shreveport, Louisiana weather reporting.25 Q. I want to shift gears. I want to talk to you




20 (Pages 290 to 293)

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1 a little bit about your sequence, because, frankly,2 there's a few things I don't understand. Okay? The3 forklift was used for a period of time by Mr. Wilson.4 Is that correct?5 A. I think we're talking about -- yes. The 80?6 Q. The 80.7 A. Yes.8 Q. All I'm going to talk about is the 80 for now.9 A. Thank you.

10 Q. Let me ask it again. The 80 had been used by11 Mr. Wilson for a period of time before he parked it in12 aisle D?13 A. Correct.14 Q. Any estimate of how long it had been in15 continuous use?16 A. In continuous use, the shift change was17 somewhere around 6. Exchanging information takes some18 time. And at a point in time, the lights come on;19 according to Valley Electric, at about 10 something, I20 think. And I can refer back to my notes on it. And21 then Jeff -- one of the Jeff's told Cleo, go into the22 warehouse -- I mean -- excuse me -- office, create23 paperwork, estimating from one deposition, it seems like24 30 minutes after the lights come on. So from 6, with a25 break, and then 10 -- 10:30, rather, he's driving and

Page 291

1 parks it somewhere around 10:30ish.2 Q. So in use about four hours or so. Is that3 fair?4 A. Close estimate.5 Q. Now at any point that evening -- strike that.6 Do you know when the last time the forklift7 engine was blown out on the 80?8 A. I do not know if the previous shift did the9 last blow-down before Cleo Wilson took over. In fact, I

10 have a hard time understanding why the previous shift11 does a blow-down and then you come on duty and you do a12 blow-down. I don't understand that. But presuming that13 they could have blowed it down pre shift change, I know14 that Cleo did not blow it down. So it was running from15 that time period without a blow-down. He inspected it.16 Q. So we know that at least for four hours, give17 or take, that this truck had not been blown down, and it18 may be even more, depending on what the prior shift had19 done?20 A. Good assumption or presumption, yes.21 Q. Now at any point during the four hours or so22 that Mr. Wilson was operating this forklift -- and he23 was the only operator that night, is that correct, on24 this truck?25 A. That's my understanding.

Page 292

1 Q. All right. During the four hours or so that2 Mr. Wilson was operating this truck, did he complain3 about any performance issues with the truck?4 A. There's nothing wrong with the truck, is what5 he said.6 Q. Okay. Was there any indication from any of7 the information you've seen that the forklift, the 80,8 overheated or was having any heat related engine9 problems?

10 A. Heat as in radiator, coolant, is what you're11 saying?12 Q. Correct.13 A. I don't have any recollection of that at all.14 Q. All right. At any point up to and including15 the point when he got off that forklift to go to the16 office, did he smell smoke or any type of fire related17 materials?18 A. He didn't report anything in his deposition.19 Q. Did anybody --20 A. No.21 Q. -- that night report any smell emanating from22 the 80 which would be a cause for concern from a fire23 perspective?24 A. Up until the time of Gregory Charles --25 Q. Up until Mr. Charles.

Page 293

1 A. The answer is no before him.2 Q. Now I understand -- and you've talked about3 this, so I'm not going to dwell on it too much. But I4 understand this truck gets parked. At that point when5 it is parked, what is your belief -- strike that -- what6 is your opinion with regard to the temperatures in the7 engine compartment or on any of the components in the8 engine compartment?9 A. The exhaust manifold being driven -- the

10 vehicle driven for the four hours is going to be at11 maximum temperatures, and I'll defer to the exacts on12 Bob Friedemann's thermocouple check of a similar model13 unit, in the 600-degree range. And whatever his charts14 will show, I'll accept those.15 Q. Somewhere, I think you said yesterday, above16 450?17 A. Yeah, but when I'm talking about this specific18 and the charts that Bob Friedemann has created --19 Friedemann has created, it will be in the 600's. When I20 was talking about in the 400 range, the ignition21 temperature of paper is where I think I was talking --22 Q. Yeah.23 A. -- but it was above that.24 Q. All right. I think we're talking about the25 same thing. Your opinion is that the temperature of the




21 (Pages 294 to 297)

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1 manifold would have been somewhere above 450 degrees?2 A. Yes.3 MR. ROGERS: Objection.4 Q. (BY MR. GREY) And Friedemann has concluded5 the 600 range for some operating period of time?6 A. Yes.7 Q. All right. Then we get the clock is ticking,8 so to speak, and you've been very clear about your9 estimates of time. So I want to talk to you about

10 sequencing. As I understand your opinion, your opinion11 is that at some point paper is ignited on the manifold.12 Is that correct?13 A. On or up against it, yes.14 Q. This is where I get confused. Is it your15 analysis that once the paper is ignited on the -- on or16 up against the manifold, that it burns other paper17 materials in that engine compartment? And I'm talking18 about the very beginning of this fire.19 A. In your question --20 Q. I can ask it a different way. That's fair.21 A. Please do.22 Q. And I think -- if you don't understand me,23 just tell me, Mr. Thornton. I'll ask it a different24 way.25 A. Go ahead.

Page 295

1 Q. Once the paper is ignited, once the paper is2 lit on or up against the manifold, can you describe for3 me your analysis as to what begins to burn?4 A. Okay. The first part, the ignition is phases.5 Okay? The smoldering phase and then went to flaming6 ignition at a point in time, unidentifiable time. That7 paper became dislodged, and because of gravity, it fell8 down onto the floor that has paper. You have a9 secondary package, a fuel package. Some call it

10 secondary target fuel, whatever we want to call it11 there. But it -- and it burned anything -- it could12 have been a small package of smoldering fire in the13 paper that fell down or it could have continued to burn14 up on the manifold, according to how much of the fuel15 was up there.16 Q. Or both?17 A. Yes, either one or --18 Q. Or both?19 A. Yes.20 Q. Because part of it could have dropped down,21 and part of it could have stayed up there?22 A. Part of it did drop down.23 Q. All right. So at some point after ignition,24 enough of some piece of burning material drops to the25 ground below the engine compartment and catches other

Page 296

1 materials that are on the floor on fire?2 A. That's my opinion.3 Q. Okay. And we talked about this -- and when I4 first started asking you questions -- there's enough5 material on the floor under the engine compartment to6 provide a fuel load?7 A. It's a good fuel package, I would call it,8 yeah, adequate.9 Q. And at that point, once the fire begins to

10 burn on the paper that's on the floor, it's essentially11 burning from underneath the forklift kind of up, at12 least initially?13 A. Yes. That fuel package, normal natural fire14 travel is upward, yes.15 Q. Is upward?16 A. Yes.17 Q. And under the forklift.18 A. Right.19 Q. Now given the winds -- strike that.20 The fire gets recognized by Mr. Charles, the21 fire gets recognized by other people who respond to22 the -- to the area of this forklift in aisle D.23 Correct?24 A. That's right.25 Q. All right. I think you'll agree there's at

Page 297

1 least some people who have testified in this case,2 Mr. Wilson being one of them, that when he got there --3 even Mr. Charles, for that matter. When they got there,4 there was some fire up at the mast on the left-hand side5 of the forklift. Is that fair, or am I misstating6 something?7 A. It's a broad statement that you make, and the8 question comes to my mind is the sequence of events.9 Gregory Charles says exactly what you say, but he says

10 it in a sequence of where he put the extinguishing11 agent, that the fire is progressing just like I would12 expect from a fire investigator standpoint. Wilson13 comes up, and he has the fire up at the mast only.14 Possibly.15 Q. Let me take this in steps.16 A. Uh-huh.17 Q. My question to you as the fire investigator,18 fire and origin guy here is, given what you've shown us19 on Exhibit 20 --20 A. 20, sir.21 Q. -- 20 with regard to the predominant wind22 direction, if the fire was at the point after it ignited23 on the engine compartment and dropped down under the24 engine compartment -- if the fire is there, how does it25 progress up to the mast by the time that these men see




22 (Pages 298 to 301)

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1 it?2 A. Since it started under the hood and the engine3 compartment near the driver's left side and it fell4 down, okay, on the manifold and it fell down, the normal5 fire travel -- and I'm pointing at Exhibit 20 -- from6 the area where the cowling was heavily damaged enough7 when Gabe -- Gabe picked up the hood compartment, it8 broke loose on him. It's weakened. As the fire dropped9 down, that's another fuel compartment. The wind

10 direction from across -- down this aisle has naturally11 got fuel in this area under the engine compartment, and12 it would push it forward and toward the right side of13 the truck. And that's evidenced by the damage on the14 wheels and the hubcap falling off, plus the arc above in15 the conduit.16 Q. Just to make sure I understand, the forklift,17 which has the forks or clamp in this case facing east,18 as I understand your description, with the predominant19 wind being north, northwest, that will force the fire20 from underneath the forklift forward and left?21 A. It did.22 Q. Okay.23 A. Well, forward -- no, that's not correct.24 Forward and right to some extent. Could be just25 forward. But there was some tendency -- and the reason

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1 I say more forward than right is that hubcap is on the2 right side.3 Q. Where's the manifold in the engine4 compartment?5 A. The manifold is along the left-hand side also.6 Wait a minute. Wait a minute. Excuse me just a second.7 Well, yeah.8 Q. All right. I'll mark this as 21.9 (Exhibit 21 marked.)

10 Q. (BY MR. GREY) The photograph I think was one11 of my photographs. It's a NACCO picture. Okay. We'll12 just talk about this in sequence. Direct -- this is13 underneath. This is after they opened up the hood at14 some point during one of these inspections. Okay?15 A. Yeah.16 Q. All right. Here, let me help you here. It17 might be easier if we just both do this together. Okay.18 This box here, do you see this?19 A. Yes.20 Q. That's called an air box. All right?21 A. That's --22 Q. Understood?23 A. Got it.24 Q. Are you with me?25 A. Yes.

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1 Q. That's actually literally on the left side of2 this engine compartment. Okay?3 A. Right.4 Q. All right. Next to that is another air5 filter.6 A. Yes.7 Q. Do you see that?8 A. I do.9 Q. Okay. And that's a big plastic piece.

10 Correct?11 A. Correct, sir.12 Q. All right. Next to that, I'm pointing to a13 little screw there. Do you see the screw I'm pointing14 to?15 A. The manifold screw.16 Q. That's the manifold?17 A. Or bolt.18 Q. Right. That's the manifold?19 A. Uh-huh.20 Q. Now with regard to the relative position of21 the manifold within this engine compartment, looking at22 this picture, does that refresh your recollection that23 the manifold is essentially in the middle?24 A. Well, middle or -- to orient it for me, it's25 on -- as I state, just while ago, and referring to your

Page 301

1 photograph that you're showing me, 21, is if the driver2 is sitting on the vehicle, it would be to his left side,3 and the manifold does not come out the right side of the4 engine compartment.5 Q. Where does the muffler come out?6 A. The muffler? It wraps around, I believe, and7 goes up --8 Q. Goes up the right side?9 A. Right.

10 (Exhibit 22 marked.)11 Q. (BY MR. GREY) Let me show you 22. This is a12 picture of an exemplar. Okay?13 A. Yeah.14 Q. Now this truck -- when you saw this truck, do15 you know where the latch was, the latch that's used to16 open the hood?17 A. I can see it in this photograph. As far as18 remembering it, no.19 Q. All right.20 A. I see it in the photograph, and I know it's21 dead center of -- or near dead center of the engine.22 Q. All right. If you go back from the latch in23 the picture that we marked as Exhibit 22, which is back24 into the engine compartment, you can actually see the25 manifold there. Correct?




23 (Pages 302 to 305)

Page 302

1 A. Absolutely, yes, sir.2 Q. And it's right behind the latch?3 A. Okay. Yes.4 Q. Is that right?5 A. Yes.6 Q. All right. So it's basically in the middle of7 the engine compartment. That's -- I don't know why8 we're fighting about this. I just want to make sure9 we're clear.

10 A. Yeah.11 Q. It's basically in the middle of the engine12 compartment?13 A. It's in the middle of the engine compartment,14 and our terminology is just different, but we're in the15 same place, yes.16 Q. Got it. Thanks.17 Now there was a period of time within the18 range that you provided to us -- I think you said 10 to19 45 minutes -- where this fire was burning on the ground20 under the engine compartment before Mr. Wilson moved the21 forklift. Correct?22 A. There was a period of time, yes.23 Q. I don't know if you've given this opinion.24 How long was that period of time? My question25 specifically is that the fire was burning on the ground

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1 under the engine compartment up into the engine2 compartment?3 A. Yeah. I think it was burning while, at the4 time that he got on the lift truck to back it up.5 Q. It was burning what --6 A. It was burning underneath and in front of --7 it had gone forward when he backed it up, so it was8 already ignited and burning.9 Q. I understand. I asked a bad question. My

10 question is how long had it been doing that? How long11 was it burning under the engine compartment?12 A. All these estimates of times are estimates, 1013 to 45 minutes. How long did it take Gregory Charles to14 run down there, get their attention and all that? It15 would be speculation. I can't -- I can't give you a16 time.17 Q. Okay.18 A. Bracketed in, the whole scenario, it was19 approximately 10 to 45 minutes.20 Q. Well, a couple things I think we can agree on21 based on the general descriptions. At least Charles'22 description, which you put a lot of weight on -- and23 you've told us that. Charles' description is the fire24 was burning bright enough as that as he came toward it,25 he could see it reflected up on the other paper stuff in

Page 304

1 aisle D.2 A. He saw a glow.3 Q. Right?4 A. Yes.5 Q. So that means it's burning to some extent.6 It's not a small fire at that point. Fair?7 A. The glow would have been there out of that8 hood compartment area. The glow could have been there.9 It could have been the advancing fire underneath. I key

10 on what he says where he first attacked the fire. And11 it's at the engine compartment. So this glow, I don't12 know what pile that it's glowing off of.13 Q. Understood.14 A. No, sir, I don't know that.15 Q. Probably a bad question. Let me see if I can16 do it this way. Based on your analysis in the case and17 given the damage that you saw on this engine compartment18 that you've talked about and you say is a part of the19 basis of your opinion in this case, given what you saw,20 physical evidence wise, how long, in your opinion, was21 the fire burning on the ground after ignition?22 A. I can't quantify that.23 Q. That's fair.24 Now were you part of the process of inspecting25 the forklift once -- when it was lifted up?

Page 305

1 A. I was there, yes, sir.2 Q. You were there?3 A. And I assisted to some extent.4 (Exhibit 23 marked.)5 Q. (BY MR. GREY) I'll mark this, Mr. Thornton,6 as Exhibit 23. Now looking at Exhibit 23, do you7 recognize we're looking underneath the forklift?8 A. I see that, yes, sir.9 Q. Okay. And I'm going to mark this as 24.

10 (Exhibit 24 marked.)11 Q. (BY MR. GREY) I think your smiling face is12 actually in this picture. This is Exhibit 24,13 Mr. Thornton. Do you see that?14 A. Oh, yeah. I got my thumb over it.15 Q. Okay.16 A. I do.17 Q. All right. Now I wanted to show you 24 just18 so you could get oriented to the direction of the19 forklift that I'm speaking to. Okay?20 A. Please.21 Q. And if you see on 24 the area I'm pointing to22 where this chain is located --23 A. Uh-huh.24 Q. -- that's the mast. You can see the mast25 assembly here.




24 (Pages 306 to 309)

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1 A. Uh-huh.2 Q. All right?3 A. Uh-huh.4 Q. Which means if we're orienting ourselves, the5 side that I'm pointing to now would be the left side of6 the forklift. Okay?7 A. Correct, sir.8 Q. Relative to the driver. All right. Now if9 you'll look at the left side of this picture that I've

10 shown here on 23 -- do you see that?11 A. I'm looking at it.12 Q. Okay. Now I'm going to point to a couple13 things in this photograph. First I'm going to show you14 these hydraulic lines that run along the outside of the15 left side of this forklift. Okay? Do you know what16 these are for?17 A. No, I do not.18 Q. Okay.19 A. I'll accept your word on it.20 Q. Okay. Well, I'll tell you what they are.21 A. All right.22 Q. They're there for the steering system.23 A. Okay.24 Q. You understand forklifts steer from the rear25 tires?

Page 307

1 A. Yes.2 Q. Okay. So these hydraulic lines run from the3 front where the hydraulic pump is located all the way4 along the left side down to the steering apparatus at5 the back of the forklift. Understand?6 A. All right.7 Q. Okay. Do you know what the apparatus -- and8 I'll put a circle on this so we understand what I'm9 talking about. On Exhibit 23 I've drawn a circle around

10 what looks to be a little metal piece with a rubber hose11 coming off of it.12 A. I do not know what it is.13 Q. You don't know?14 A. No.15 Q. Okay. So with regard to damage underneath16 this forklift after this incident occurred, based on17 what we're looking at in these two pictures --18 A. Uh-huh.19 Q. -- at least what we're looking at in these20 pictures are the fact that on the left side of this21 truck, the steering hydraulic hoses are there; they're22 not burned away. Correct?23 A. I can accept that. Go ahead.24 Q. Is that right?25 A. They don't appear to be broken down.

Page 308

1 Q. All right. And right in the middle of the2 engine compartment area is another piece of apparatus3 related to the function of the hydraulic system with a4 hose that at least in the part I've circled is still in5 existence. Correct?6 A. Okay.7 Q. And that hose -- both of those hoses, the8 steering hose is on the left side of the truck --9 A. Uh-huh.

10 Q. -- and the hose that I'm pointing to in the11 circle --12 A. Uh-huh.13 Q. -- both of those would be on the lowest part14 of the forklifts outside of the wheel. Correct?15 A. All right, sir.16 Q. Is that right?17 A. I see it. Go ahead.18 Q. Okay. No, I just want to understand. Do you19 agree with me that those hoses would be down on the20 bottom of the forklift, is all I'm asking?21 A. They are down low on the forklift, yes.22 Q. Okay. Now with regard to the fire that was23 underneath the truck, based on your analysis, I think24 you agree that both the hoses that are shown to the25 steering system on the left side of the truck and the

Page 309

1 hose that's in the circle there, they would be directly2 in the area of where this fire, you expect, would be3 burning. Correct?4 A. In the general area, yes.5 MR. GREY: Bear with me just a second.6 They used all the good pictures yesterday. I'm trying7 to help. I think they actually stole mine. Ah ha,8 there it is.9 (Exhibit 25 marked.)

10 (Exhibit 26 marked.)11 Q. (BY MR. GREY) I'm going to show you a couple12 pictures that I've marked of the forklift, and focusing13 back on the left side on the outside. Okay? I think14 you've seen this picture, but I don't know. This is15 Exhibit 26, and do you recognize what's shown there?16 A. I do.17 Q. Okay. And then this would be 11, which was18 marked yesterday. And what I'm going to talk to you a19 little bit about is the air box. Do you see this?20 A. I do.21 Q. Okay. And then this would be a later22 photograph taken after the hood had been removed. And23 that's photograph 25. And that's the air box there as24 well?25 A. Yes, sir.




25 (Pages 310 to 313)

Page 310

1 Q. All right. Now as configured -- actually, I2 had a couple questions for you about this. Did you ever3 look at an exemplar H80 forklift? Did you ever look at4 one of these trucks?5 A. No, sir.6 Q. All right. Do you know if there's -- as7 normally configured, do you know if there's any space at8 all between the hood and the part of the machine around9 it? Do you understand what I'm asking you?

10 MR. ROGERS: Objection. Form.11 MR. GREY: It's a bad question.12 MR. ROGERS: I don't know what you mean.13 MR. GREY: Terrible question.14 Q. (BY MR. GREY) This hood -- hold on. I can15 explain, Mr. Thornton. You open this hood up with a16 latch. Correct?17 A. Yes, sir.18 Q. And you roll it, and you pull it up.19 A. Uh-huh.20 Q. Do you understand?21 A. Uh-huh.22 Q. All right. When you slam the hood down, when23 you close the hood, with regard to the -- you know what,24 strike it. I think I can do this elsewise.25 There you go, 14. That's the picture you drew

Page 311

1 the circle on. And I think that's the crack you said2 that Mr. Gregory would have stuck -- or you believe3 would have stuck the fire extinguisher into trying to4 put the flames out?5 A. That's the area I understood, yes.6 Q. All right. Normally, as configured, okay --7 so when you slam the hood shut, is there any crack like8 that?9 A. Best of my knowledge, the crack is not there

10 normally if there's a gasket material around there. He11 said something about the gasket had burned away. So12 this air gap that we're seeing here I don't think is13 part of the design. Again, I'm not a design engineer.14 Bob Friedemann will answer it better than me. But there15 is an air gap in this photograph. A crack would be the16 way I would describe it if I was in firefighting. And17 that's the way Gregory Charles described it.18 Q. So in terms of what I was talking to you19 about, normally that's not supposed to be there. Is20 that fair?21 A. I don't think it would be. I think you would22 have a gasket of some sort --23 Q. Some sort of seal?24 A. -- to where they meet together, seal, a gasket25 like Gregory Charles described it.

Page 312

1 Q. All right. So in this instance, based on your2 analysis in the case, the fire burned long enough in the3 engine compartment that it would have burned away4 whatever seal material, gasket was there and created a5 gap?6 A. Some portion of it, yes.7 Q. Some portion of it. Gap enough that he would8 have been able to see, as I understand? You said he saw9 flames?

10 A. That's where he saw the flames, and that's11 where he put his extinguisher --12 Q. All right.13 A. -- yes.14 Q. Jumping back a second, with regard to the air15 box --16 A. Yes.17 Q. -- that's on this, now the air box is18 literally right up against the left side of that19 cowling. Is that correct?20 A. I'm not an engineer or design engineer, but I21 wouldn't design it where it would rub up against, so22 there's an air gap there of whatever -- Bob Friedemann23 will answer it better, but there is a space and possibly24 insulating material for sound attenuation and heat, you25 know, to keep it from burning the butt of the driver

Page 313

1 there. I would expect some clearance, but --2 Q. I understand what you're saying. But it is3 the closest -- the face that we see there on Exhibit 204 is the closest piece of the engine compartment to the5 absolute left side of this forklift at the upper6 section?7 A. Other than the cowling, yes.8 Q. Other than the cowling, that's correct.9 A. Yes.

10 Q. It goes outside of the air box, some type of11 insulator, and then the cowling itself?12 A. Yes.13 Q. All right. Now what we see there in14 Exhibit 20, that's the -- that's the outside of the air15 box itself.16 A. Uh-huh.17 Q. That -- what we see there is oxidation in18 Exhibit 20. Correct?19 A. Yes, I do see oxidation.20 Q. Okay. Now is it your opinion that the21 oxidation that we see on the outside of the air box was22 caused by fire from the inside of the engine23 compartment?24 A. Fire or heat development is -- whatever25 development stage, phase of the fire was, there's heat




26 (Pages 314 to 317)

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1 stress.2 Q. That's heat stress. I think you said this3 yesterday. Have you ever looked at forklifts involved4 in fires before?5 A. One is the only one that I know of, and it's6 been years and years ago.7 Q. And in this particular case -- I don't think8 we have any issue.9 (Exhibit 27 marked.)

10 Q. (BY MR. GREY) This is photograph 27. The11 engine compartment fire did not burn or melt, whatever12 word you want to use, the aluminum radiator. Is that13 correct?14 A. It did not.15 Q. It did not?16 A. No, I don't recall seeing any melt damage.17 Q. I told you I was going to have to bounce18 around, so you're going to have to bear with me. With19 regard to photograph 26, that's a picture of the left20 side before it was broken off, so that's a picture --21 that condition did not exist when you first saw the22 truck. Fair?23 A. That's correct, sir.24 Q. All right. Now when you look at material like25 fiberglass --

Page 315

1 A. Yes, sir.2 Q. -- as an analysis, does a fire person -- or as3 an engineer, when you look at that material, you can see4 whether the material, fiberglass is burned from the5 outside in or the inside out. Is that correct?6 A. That's correct, sir.7 Q. Okay. And one of the things you would look8 for when you're trying to make that determination is --9 as I understand it, fiberglass actually burns in layers.

10 It kind of one layer to another layer -- as you're going11 in or out, you're burning through layers of this12 material. Right?13 A. I think that's true of any material. It burns14 in layers. It has to preheat to ignition where it will15 have gas and then burn. So yeah, that's a good general16 statement about burning.17 Q. So in a case like this where you were wanting18 to see if something was burning from the outside in or19 the inside out, one of the things you can look at is the20 actual condition of the cowling to see what evidence it21 shows, whether it's outside in or inside out. Is that22 fair?23 A. I believe it is, yes.24 MR. GREY: Bruce, I swear I had25 everything laid out. I can't find the picture I want.

Page 316

1 Q. (BY MR. GREY) This is Exhibit 21. This is a2 picture I showed you before. And this is 25, which is3 the other picture I showed you before. Now picture 21,4 you can actually see the portion of the air box that5 would be facing the clamp or the forks. 21, this one.6 A. Okay.7 Q. You can actually see the face of the air box8 that's facing the clamp. Correct?9 A. I do.

10 Q. And at least in that picture, the portion of11 the air box that is facing the clamp does not have the12 oxidation that's shown on the side of the air box that13 is facing the outside or left side of this forklift.14 Correct?15 A. That is true.16 Q. And, in fact -- and we looked at this a minute17 ago -- this is 22, Mr. Thornton. This is that engine18 compartment, exemplar picture I showed you.19 A. Good.20 Q. And this piece -- this piece of apparatus that21 I'm pointing to is a plastic air filter.22 A. Yes, sir.23 Q. Do you see that?24 A. Yes.25 Q. Now that air filter -- and it does have a

Page 317

1 shield on one side of it. Correct?2 A. Okay. Yes, sir.3 Q. Do you understand it has a shield?4 A. This metal piece that you're pointing to, yes.5 Q. That apparatus, though, that air filter, which6 is paper and plastic essentially, is the closest piece7 of machinery in this engine compartment to the manifold.8 Do you understand that to be true?9 A. The closest what?

10 Q. If I --11 A. Appliance?12 Q. Closest appliance, closest piece of anything13 to the manifold.14 MR. ROGERS: Objection. Form.15 A. All right. Go ahead, sir. It is.16 Q. (BY MR. GREY) Okay. It's immediately to the17 left. If you're the driver, it's immediately to the18 left of the manifold?19 A. I believe it is.20 MR. ROGERS: Objection. Form.21 Q. (BY MR. GREY) Okay. Now it was damaged. Do22 you understand that?23 A. Yeah.24 Q. It was damaged in the fire. And you can see25 it here in Exhibit 21. Do you see that?




27 (Pages 318 to 321)

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1 A. Yes, sir.2 Q. But it was not destroyed in this fire?3 A. Correct, sir.4 Q. A couple of quick questions, moving away from5 the stuff we've been talking about. You mentioned this6 before. We were talking about maintenance issues with7 the forklifts and the fact that they were changing8 out -- there had been changes to the hydraulic hoses9 that had broken at some point before this incident.

10 Remember talking about that?11 A. Yes, I do.12 Q. All right. You're aware of the fact that some13 of the Tango people said that they did spill hydraulic14 oil onto paper in aisle D, in the area where this15 forklift was parked?16 A. I am aware.17 Q. Okay. Now a couple things on this. The first18 question would be, do you agree as a general matter,19 it's probably not a real good idea to spill -- one guy20 said it was gallons of hydraulic oil onto paper in the21 middle of a paper warehouse without cleaning it up?22 A. And your question, please?23 Q. That's not a good idea, is it? As a fire24 cause and origin investigator, do you find that to be25 troublesome?

Page 319

1 A. I find it to be a fact that I know -- it's2 reported to me that they spilled some fluid. Gallons?3 Bob Friedemann will tell you about how much is held in4 those hoses, whether or not he believes it's gallons,5 and further reported that they used dirt or sometimes6 the paper to clean up. How good they cleaned up, I7 don't know. How much fluid was there in aisle D, I8 don't know. Housekeeping wise, if that's their policy,9 that's their policy. You can use driveway litter, kitty

10 litter type stuff. Maybe dirt will pick it up. I don't11 know how clean they made it.12 Q. Well, I guess that's my question. If the13 testimony we hear in this case is that they weren't14 doing anything, they were just basically spilling it on15 the paper and letting the paper soak it up and leaving16 the paper there, my only question to you is, in a paper17 warehouse, is that a good idea to do something like18 that, to just leave hydraulic oil soaking into paper?19 MR. ROGERS: Objection. Form.20 A. And quantity is what I would want to know. If21 it's quantity of gallons, I think it's a safety hazard.22 That could be a slip hazard. Whether it contaminates23 the paper or not, I don't know the use and how it's24 processed, so how that's going to affect it, I don't25 know. So I wouldn't speak to that. But the quantity

Page 320

1 is -- I don't think it's set as to know what efforts you2 need to do to clean it up.3 Q. (BY MR. GREY) Now who ultimately is4 responsible for cleaning up the paper on the floor of5 this warehouse?6 A. The warehouse people, whoever they are, Tango,7 Murphy Bonded, whatever their names are.8 Q. Based on your analysis, was the presence of an9 amount of paper on the floor one of the causes that led

10 to this fire getting out of control?11 A. It would have to be an avenue of fire spread,12 is the way I'll answer it.13 Q. With regard to the operational characteristics14 of this particular facility, did you see any information15 in your analysis that the operators were actually16 pushing bales of paper using these forklifts?17 MR. ROGERS: Objection. Form.18 A. I saw in the depositions both sides of the19 story. They do. They don't. They're not supposed to.20 They're supposed to use OCC. That's my information.21 Q. (BY MR. GREY) In your analysis, and given22 your expertise, is it possible for these bales to be23 pushed -- that are heavy enough -- and we'll assume24 they're heavy enough -- pushed far enough and fast25 enough that if they're wrapped in wire that that wire

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1 could get hot enough to cause a fire?2 A. It's a possibility.3 Q. Okay. Did they experience that at Murphy4 Bonded, Tango? Did they experience fires, small or big,5 that were the result of bales being pushed wrapped in6 wire?7 MR. ROGERS: Objection. Form.8 A. I don't know of any --9 THE WITNESS: Excuse me, Bruce.

10 MR. ROGERS: It's okay.11 A. I don't know of any specifically where it was12 documented that pushing a bale did this fire.13 Q. (BY MR. GREY) Did you read testimony from14 these witnesses that indicated that they had pushed15 these bales and started to smell smoke?16 A. I don't recall that.17 Q. Okay. Would that be something that's18 significant to you?19 MR. ROGERS: Objection. Form.20 Q. (BY MR. GREY) That fact, that operators said21 that happened?22 A. Could be significant, yes.23 Q. Okay. These forklifts, all the ones we've24 been talking about, the 80 and the 90, they were25 equipped -- I call them forklifts, and that's probably




28 (Pages 322 to 325)

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1 my fault. That's not right. They had clamps on them.2 Do you recognize they all had clamps?3 A. Yes.4 Q. And these clamps literally, they kind of5 grabbed these bales, and they could lift them out. And6 forks would be literally the forks that they slide under7 something and lift. That's to me what the difference8 is.9 With regard to these clamps, did you see

10 any -- I'll ask it two ways. One, did you see any11 evidence that these operators were actually running the12 trucks with the clamps down on the ground?13 A. No actual evidence. I saw some damage to --14 even on the 80, the left-hand -- I don't know if it's15 lower or upper -- is bent.16 Q. The clamp? Are you talking about the clamp?17 A. The squeezer, yeah.18 Q. Okay.19 A. The outside. And they could have run into a20 column or something. I don't know how that was done.21 But to see evidence of that after the fire, you would be22 hard pressed to identify it as a scrape, friction type23 action.24 Q. Did you --25 A. It could happen.

Page 323

1 Q. That's okay. Did you see any gouges in the2 concrete pad that you thought -- that looking at it now3 you think might be related to the clamps being run on4 the ground at speed?5 A. No, I did not.6 Q. All right. Are there concerns relative to7 sparking, heating of components for these trucks to run8 with their clamps down on the ground?9 A. I would think that that would be a prohibited

10 action.11 Q. Because of things like what I just said?12 A. That would be one reason, yes.13 Q. And the other would be damage; you're going14 to mess --15 A. Wear out my concrete or something there.16 Q. And the clamps themselves, you might wear them17 out. Is that fair?18 A. True.19 Q. Now with regard to Tango -- and I talked to20 you about this. This is a paper warehouse. Correct?21 A. Yes, sir.22 Q. All right. Have you been provided with any23 materials that outline formal fire prevention safety24 programs in place at Tango at the time of this incident?25 A. No.

Page 324

1 Q. Should they have had that type of program as a2 fire -- as a fireman, do you think they should have had3 that?4 A. I think they had procedures and provided fire5 extinguishment type apparatuses, appliances. They had6 prohibited use of the forklift on the floor. They had7 those kind of things, but whether they was outlined as8 fire prevention or not, per se, or training in that9 area, I don't know that they had that.

10 Q. Now I think you agree with me that there's a11 difference between saying don't do this and actually12 going out and enforcing those types of policies. Agree?13 A. In a general statement, I think you're right.14 Q. And back to my original question. I have not,15 but I'm asking you, have you seen any written fire16 prevention policies?17 A. No, I haven't.18 Q. This place did not have a fire sprinkler19 system. Correct?20 A. Did not, as far as I know. No, it did not.21 Excuse me.22 Q. Bear with me for a second. This I did want to23 ask you. From a factual standpoint, by the time Wilson24 gets there, this fire -- this fire is burning. Fair?25 A. Yes, the fire is burning, yes.

Page 325

1 Q. All right.2 A. Good.3 Q. And you told me earlier one of the things4 that's going on is that there's fire on the ground under5 the engine compartment that's burning essentially up6 into the engine compartment. Correct?7 A. Essentially, yes.8 Q. All right. And Charles is there --9 Mr. Charles is there before, and it's actually burned to

10 a point where it's created a crack where he can see11 flames through the crack in the engine compartment.12 Correct?13 A. Yes.14 Q. All right. And at that point, Mr. Wilson15 jumps on this forklift?16 A. Later would be a better --17 Q. Later, yeah.18 A. Yeah.19 Q. Later. It's actually even after that point,20 Mr. Wilson jumps on the forklift?21 A. Correct.22 Q. The hottest part of the fire is literally23 under his rear end at this point. Correct?24 A. The fire's progressing from that area, and25 it's hotter than out in the warehouse, yes.




29 (Pages 326 to 329)

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1 Q. Yeah.2 A. It's a hot seat.3 Q. Yeah, I was going to say, given what's going4 on and the progression of this fire, as you've described5 it, he has now put himself on top of the fire by getting6 on the forklift at that point?7 A. Your answer -- I mean, your question is8 correct to a point, the point being how much9 extinguishment -- how effective was the extinguishing

10 agent. Early on we put out a preliminary -- the target11 area fire that is now spreading toward the right front12 and away from our primary target's fuel.13 Q. At the point Wilson gets on this forklift, it14 has been burning directly under that seat for some15 period of time?16 A. Obviously, yes.17 Q. It continues to burn under that engine18 compartment to some extent?19 A. To some extent, yes.20 Q. Okay. And at that point, the forklift -- when21 he first gets on, the forklift is not running.22 A. No.23 Q. When he stopped -- parked the forklift, he24 turned it off?25 A. Did he turn it off or just jump off? He put

Page 327

1 it in neutral, so I'm not sure if it was turned off. He2 may have.3 Q. What did you say in your report?4 A. I'm not sure.5 Q. If you said in your report that the truck was6 off --7 A. Okay. Then that's what I heard.8 Q. All right.9 A. Good.

10 Q. At that point he -- to start the truck -- do11 you know how you have to start this truck?12 A. Not exactly.13 Q. Assume it's a key?14 A. From there I wouldn't -- I would not know if15 you've got some sequence to go through or a code.16 Q. Okay.17 A. I don't know.18 Q. But assuming there's not a particular19 sequence, if it's in neutral and the truck is off and20 there's a key there -- you have to turn the key. I want21 you to assume that.22 A. I will.23 Q. You have to turn the key. Now relative to24 other motor vehicles, turning the key has a similar25 effect in automobiles. You have to go through a

Page 328

1 starter. It causes a spark, which starts the diesel2 engine running. All right? I want you to assume that3 so far.4 A. I believe that.5 Q. All right. So now we have a guy who has6 jumped on a forklift and he's on top of what at one7 point was the hottest part of the fire. The electrical8 system, after having been on fire for some -- to some9 extent, the electrical system is still intact enough

10 under your analysis to allow this forklift to start.11 Correct?12 A. It did.13 Q. So the battery's not compromised?14 A. Correct.15 Q. None of the wires, the hot wire or the ground16 wire have been compromised to the extent that they have17 broken the integrity of the electrical system?18 A. I can't answer that with any accuracy.19 Q. It started.20 A. But you said none of the wires.21 Q. Well, it started. So can we assume that none22 of the wires have been compromised to the extent that23 it's going to impede the forklift starting and moving?24 A. Now different question. The starter element,25 the wires have not shorted out.

Page 329

1 Q. Well, the starter runs to the battery.2 A. Correct.3 Q. The battery runs to the motor compartment.4 A. Yes.5 Q. It runs the motor. Fair?6 A. Yes.7 Q. Okay. And the truck was moved?8 A. Yes.9 Q. Correct?

10 A. Correct, sir.11 Q. And I'm not even to the second point yet.12 This is just the first movement of the truck.13 A. All right.14 Q. All right. So at least when he turns that on15 and starts to move it, the fire has not in any way16 impeded, broken, whatever word you want to use, the17 electrical system that operates that forklift?18 A. Operates the starter part. The lights or19 anything else might have burned off. I don't know. But20 we're talking about the starting ability.21 Q. Do you know if the lights had been burned out?22 A. No, I don't know that. But that's why I23 couldn't answer your question because "none of the24 wires."25 Q. But I guess my point would be this. As far as




30 (Pages 330 to 333)

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1 the operation of this truck goes, the electrical system2 has to be intact in order to move the truck. The motor3 won't run if you break the electric. Do you understand4 that?5 A. To the starter.6 Q. No, no. I'm past starter now.7 A. Okay.8 Q. I'm just talking about moving the truck. The9 forklift has been started. You shift it into gear and

10 you're reversing. It's what Mr. Wilson did. Correct?11 A. Yes, sir.12 Q. My only question is, in order to shift into13 gear and move, that electrical system has to be14 functional?15 A. Okay. This is something I didn't know. Thank16 you.17 Q. You didn't know that?18 A. No, I didn't know the whole electrical system19 had to function.20 Q. If you assume that to be the case --21 A. I will.22 Q. -- back to my original question. He gets on23 the truck, he starts it, and he moves it. At least at24 that point, if I'm correct, the electrical system is25 still fully functional?

Page 331

1 A. I believe it is then.2 Q. When he gets on that forklift, the driver's3 seat of that forklift --4 A. Yes.5 Q. -- I'm assuming the seat itself wasn't on6 fire. Do you agree with that?7 A. I don't believe it was.8 Q. All right. Were the components hot?9 A. Hot? They were heated. But were they

10 temperature that he could differentiate, I don't know.11 I wouldn't get on it if it was, quote, that hot. But12 there's heat transfer.13 Q. From what we understand, in terms of what you14 read in his deposition, he didn't hesitate at all. He15 jumped on that forklift.16 A. Okay.17 Q. Given your experience as a firefighter and a18 fire protection specialist, do most people run into the19 fire or do most people run away from where the fire is?20 MR. ROGERS: Objection. Form.21 A. Most people -- this person, Cleo Wilson, how22 they react to fire, what he saw, I wouldn't try to23 evaluate. As to how hot the seat was, it had received24 heat, yes.25 Q. (BY MR. GREY) All right. On that topic --

Page 332

1 where is that picture? Give me a second. I'm not2 presuming, because I don't remember, but in that3 photograph, do you see the damage to the seat that you4 were referring to before?5 A. The photograph is Exhibit 19, and yes.6 Q. You can see it there?7 A. I do see the oxidation.8 Q. All right. You refer to that as oxidation.9 Correct?

10 A. Yeah, it's heat stress.11 Q. And what is that related to? What is that12 from, in your analysis?13 A. Fire progression, heat underneath the unit.14 Q. And it was from -- your understanding, it's15 from underneath going up. Is that correct?16 A. Yes, sir, it is.17 Q. All right. Now what's on the back of the18 seat?19 A. There would be some sort of padding possibly20 on the back part there, at least a rust inhibitor, zinc21 or whatever, and then a paint application. All that's22 burned away. There are two screws at the top, two23 screws at the bottom. There could have been some sort24 of backboard on it. I don't know.25 Q. That's where they keep the operator's manual.

Page 333

1 That's actually a big plastic --2 A. Okay.3 Q. -- container.4 A. And it's gone.5 Q. All right. Now isn't it a fact that if you6 have a big glop of plastic on the back of that seat that7 caught on fire at some point, that you would expect to8 see the oxidation just there?9 A. That could be the answer.

10 Q. Okay. Did you see the same oxidation pattern11 on the 90?12 A. I'll have to look at the photograph. I didn't13 notice it, but --14 Q. Okay.15 A. -- could be.16 Q. All right. So in other words, if there is a17 piece of plastic on the back of the seat that's held in18 by the four screws that you see there --19 A. Yes.20 Q. -- and it caught on fire from inside or21 outside, it wouldn't be unusual in any way, shape or22 form, to see oxidation there, because it's going to burn23 very hot?24 A. Plastic burns different than most material, so25 we may have melting and burning below as opposed to




31 (Pages 334 to 337)

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1 hanging and burning. I don't -- I wouldn't speculate on2 it being exactly like you say. That heat from below3 would cause the melting.4 Q. Until I just told you now that the operator's5 manual was there, did you know that?6 A. No.7 Q. Do you know if the operator's manual was with8 this truck?9 A. I don't have no idea, sir.

10 Q. Bear with me for a minute. I'm just kind11 of --12 At some point in your inspections of this13 truck, you did identify the fact that -- I believe you14 said in your report it was the hot wire, the energized15 wire running to the battery?16 A. It was an energized wire, yes.17 Q. Okay. That that did short. Correct?18 A. Shorted out to some metal material, bolt or19 something.20 Q. Okay. But you concluded from a cause and21 origin standpoint that that short did not cause this22 fire; that was a result of this fire?23 A. That's what I concluded, and then the24 electrical engineer had the same conclusion, I believe.25 Q. You mentioned in your report on page 11 that

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1 you did see even on this truck -- you saw that some of2 these wires had ended up getting wrapped around the3 axle. Correct?4 A. Yes.5 Q. That -- was that part of the maintenance6 processes in place at Tango as well?7 A. Yes.8 Q. They were supposed to clean them off or9 break -- cut them off?

10 A. Cut them off, I think, or if they can unwrap11 them. Ever how they get them off.12 Q. All right. Wires getting wrapped around like13 that, that could be a friction issue. The wires could14 get rubbed until they got hot enough?15 A. That's possible.16 Q. Did you analyze that at all?17 A. The whole analytical process of the sequence18 of fire, discovery would eliminate that it was a spark19 from any wire dragging or even lift -- the forks, the20 squeezer forks.21 Q. Let me ask it this way. Do you know if Tango22 had issues with the wires wrapped around the tires23 causing smoke, burning, things like that?24 A. I don't think they had smoke or burning, but25 they may have that I don't know about.

Page 336

1 Q. So if that was the circumstance, if they were2 seeing that, where wire was getting wrapped around the3 axles and getting hot enough to cause smoke and burning4 and that was the reason they started telling people they5 had to cut the wires off, would that be important from a6 safety standpoint to make sure you kept cutting the7 wires off as needed?8 A. It's important in a fire standpoint or any --9 safety or wear and tear on the vehicle. And it was

10 taken into consideration, yes.11 Q. One of the things you said in your report --12 and I am jumping around now. I am trying to wrap it up13 for you. On page 11 you talked about one of the things14 you eliminated as being a cause was burning paper being15 pushed up against the Hyster 80. Do you remember16 talking about that in your report?17 A. Yes.18 Q. Where did that come from? Who did you hear19 describe burning paper being pushed up against the 80?20 A. The statements in Cleo Wilson stating they21 pushed paper up against it. If it wasn't burning, it22 would be no issue.23 (Exhibit 28 marked.)24 Q. (BY MR. GREY) I'm going to show you picture25 28, Mr. Thornton. That's a picture of the right side of

Page 337

1 the truck. Do you see that?2 A. I see the picture, yes --3 Q. And were you there -- when you there when the4 cowling on the right side broke?5 A. That -- I don't know that I was there when it6 broke. It could have been when it was cinched down for7 travel from Tango 509 warehouse to SEAL or over to -- I8 think this was at Deep South it finally was broken.9 Q. Okay. What does that tell you? What does the

10 fact that the right side was broken tell you, if11 anything?12 A. Yeah, the brittle breaks underneath the engine13 compartment in Exhibit 28, there was heat stress, there14 was a deterioration to the whole cowling. And when we15 loaded it -- we, the group load -- it was wrapped so as16 stuff don't fly off going down the freeway. The damage17 occurred. Now if I was there when it happened, I can't18 testify exactly. But that's how it happened. But these19 are brittle breaks. You don't see the jagged line of20 heat as in fire damage like you do on the opposite side21 in other photographs that we've looked at here. But I22 just see brittle breaks of fiberglass cowling.23 Q. Okay. Was it weakened?24 A. Yeah. It had some deterioration, yes.25 Q. Now what's on the inside of the right -- on




32 (Pages 338 to 341)

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1 the right side of the cowling? What's immediately2 inside? We talked about the air box on the left.3 What's on the right?4 A. The battery box is generally in that area, I5 think, and the wires travel to it.6 Q. Okay. So the battery is right there?7 A. I think I'm correct -- if I'm wrong, we'll let8 Bob Friedemann say. But I'm pretty sure the battery box9 and the cables -- the cables came into that area --

10 Q. Battery burn?11 A. It's received heat. It's not burning,12 flaming, contributing to the fire load that much, but13 it's burning some.14 Q. The battery was completely destroyed in this15 fire, wasn't it?16 A. Well, I differentiate the heat stress and the17 total burnout of it. The plastic casing, the lead18 plates are still there.19 Q. Well, can you show me a picture that shows the20 plastic casing of the battery?21 A. No.22 Q. I just want to make sure I'm understanding.23 The battery casing, the plastic part of the battery was24 completely destroyed in this fire. Correct?25 A. Right. Yes.

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1 Q. All right. What was left, you might be able2 to see some of the remnants of the guts, if you would,3 of the battery?4 A. The lead plates.5 Q. You may be able to see some of that?6 A. Yeah.7 Q. All right. At least when Mr. Wilson moved the8 truck the first time, that battery was still intact?9 A. That battery was -- it was intact enough to

10 furnish electrical power to start the engine and allow11 all the processes that you obviously know more about12 than I do for him to drive it.13 Q. Now when the forklift gets moved the first14 time, then there's some additional activity that takes15 place with the men who were trying to deal with the16 circumstance that presented itself, the fire. They17 went, tried to do -- to put the fire out?18 A. They did attempt it.19 Q. All right. And then Mr. Wilson got back on20 the forklift. Right?21 A. Okay, sir. Yes.22 Q. You understand he moved it twice?23 A. I think he pulled it -- after he backed it24 out, then he tried to pull forward. I presume to think25 that he was headed for the north off ramp and got too

Page 340

1 hot. That's when he bailed off.2 Q. All right. So he was -- at least at that3 point, he, Mr. Wilson you would expect was not seeing4 any signs of fire in and around the operator's seat and5 controls that he needed to move the forklift the second6 time?7 A. Early on, but then he did -- as soon as he got8 on it, he abandoned that idea. So there was heat and9 flames shortly thereafter.

10 Q. So is it your understanding or your opinion in11 this case that Mr. Wilson, when he got on the truck the12 second time and began to move it in whatever direction13 he moved it, that he would have been experiencing14 literally flames and excessive heat from fire that was15 still burning in the engine compartment?16 A. It would be probably why he got off of the17 lift truck and abandoned it instead of driving it off.18 Q. I don't know that you explained this. And I19 have to apologize, I kind of got involved a little later20 than the other guys in the room. Who is Gabe Moreno?21 A. He worked for a company called S-E-A-L, and22 he's a fire investigator, and he was hired by one of the23 companies out there that had some ownership in the24 building or Tango. And I'm not too clear on that.25 Q. Okay. So he was hired -- he was not hired by

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1 the people in this room or the people on the phone, to2 your knowledge?3 A. I know he wasn't hired, as far as I know, by4 the Brown Herman group. The rest of the people, I don't5 know.6 Q. Did you ever see a report from Mr. Moreno?7 A. No, sir.8 MR. GREY: Hey, Bruce, let me talk to9 Bill for a second.

10 MR. ROGERS: Sure. Let's take a break.11 THE VIDEOGRAPHER: We are going off the12 record. The time is 11:57.13 (Break from 11:57 a.m. to 12:10 p.m.)14 THE VIDEOGRAPHER: We are on the record.15 The time is 12:10.16 FURTHER EXAMINATION17 BY MR. MARICLE:18 Q. Mr. Thornton, I just want to ask you two19 follow-up questions. You said when Fran was asking you20 questions, there was a sequence of events that led you21 to conclude that there was no way that sparks or22 dragging of wire caused the fire. Can you describe the23 sequence of events you're referring to?24 A. Yes. If I had sparks, I would expect an25 ignition of some combustible fuel load and a




33 (Pages 342 to 345)

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1 continuation in that atmosphere of paper and wind,2 available heat, fuel and oxygen. I would expect that3 just like others that may have occurred, they've smelled4 smoke, they've had some indicators. They didn't have in5 this.6 Q. Okay. Could sparks or heated wire produce a7 smoldering fire?8 A. In a hypothetical, I believe that's possible,9 yes.

10 Q. Okay. And then between when Cleo moved the11 forklift or lift truck the first time and the second12 time, how much time had elapsed?13 A. I couldn't estimate that, sir.14 Q. And you don't know the information?15 A. I don't know a time span, no.16 MR. MARICLE: Okay. All right. I thank17 you. McDonald Provosty on the phone has a few18 questions. McDonald.19 MR. PROVOSTY: Yes. My time?20 MR. MARICLE: Yes, sir.21 MR. ROGERS: Proceed.22 MR. PROVOSTY: All right.23 EXAMINATION24 BY MR. PROVOSTY:25 Q. This is McDonald Provosty. I represent Osram

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1 Sylvania, Inc., and I just have two quick questions. On2 your expert report, which is dated September 14, 2012,3 if you go to page 8, please.4 A. It's 4. I have it. Page 8, please?5 Q. Yes.6 A. I'm moving that way.7 Q. All right.8 A. I'm on 8, sir.9 Q. Okay. Do you see the first full paragraph

10 underneath those two embedded pictures that begins, The11 light fixture was observed?12 A. I do.13 Q. Okay. I'm going to read that real quick, and14 then I'm going to ask you a question about it. It says,15 The light fixture was observed, collected and preserved16 for inspection as may have been required or requested.17 Based on the directional and/or intensity type burn18 patterns found at the general area of origin, this19 fixture was not suspected as the source of heat or20 ignition or the cause of this fire. These findings were21 confirmed as being the opinion of the electrical22 engineer involved with this examination.23 Okay. The first question I have is, has your24 opinion changed in any way since you issued this report25 with regard to this paragraph?

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1 A. No, sir.2 Q. Is that a no?3 A. No, sir.4 Q. Okay. As we sit here today, do you have any5 evidence whatsoever to -- to suggest that the light6 fixture or the light bulb made by my client contributed7 to this fire?8 A. I don't have that evidence, no, sir.9 Q. Okay. And who is the electrical engineer that

10 you cited in that paragraph?11 A. Forest Smith with a company called Verité,12 V-E-R-I-T-E with a little squiggly mark over the end of13 it.14 Q. I got you.15 MR. PROVOSTY: All right. Thank you very16 much. Those are all the questions I have.17 THE WITNESS: My pleasure.18 MR. MARICLE: Thank you.19 MR. ROGERS: We'll reserve all questions20 until time of trial.21 MR. MARICLE: Okay. What about reading22 and signing?23 MR. ROGERS: Yes. 30 days to read and24 sign; is that okay with everybody?25 MR. MARICLE: Actually, because we have a

Page 345

1 mediation on December 11th, I would say let's get it2 back before then.3 MR. ROGERS: Well, it's going to take4 what, two weeks to turn this around? So --5 THE VIDEOGRAPHER: We are going off the6 record. The time is 12:14. This is the end of tape 27 and concludes today's deposition.89

10111213141516171819202122232425




34 (Pages 346 to 349)

Page 346

1 CHANGES AND SIGNATURE2 PAGE LINE CHANGE REASON3 _______________________________________________________4 _______________________________________________________5 _______________________________________________________6 _______________________________________________________7 _______________________________________________________8 _______________________________________________________9 _______________________________________________________

10 _______________________________________________________11 _______________________________________________________12 _______________________________________________________13 _______________________________________________________14 _______________________________________________________15 _______________________________________________________16 _______________________________________________________17 _______________________________________________________18 _______________________________________________________19 _______________________________________________________20 _______________________________________________________21 _______________________________________________________22 _______________________________________________________23 _______________________________________________________24 _______________________________________________________25 _______________________________________________________

Page 347

1 I, JOHNNY THORNTON, have read the foregoing deposition and hereby affix my signature that same is

2 true and correct, except as noted above.34

___________________________________5 JOHNNY THORNTON678 THE STATE OF __________)

COUNTY OF _____________)9

Before me, ___________________________, on10 this day personally appeared JOHNNY THORNTON, known to

me (or proved to me under oath or through11 ___________________________) (description of identity

card or other document)) to be the person whose name is12 subscribed to the foregoing instrument and acknowledged

to me that they executed the same for the purposes and13 consideration therein expressed.

Given under my hand and seal of office this14 __________ day of ________________________, __________.1516

___________________________________17 NOTARY PUBLIC IN AND FOR

THE STATE OF ______________________18 COMMISSION EXPIRES: _______________19202122232425

Page 348

1 UNITED STATES DISTRICT COURT WESTERN DISTRICT OF LOUISIANA

2 SHREVEPORT DIVISION3 INTERNATIONAL PAPER )

COMPANY and FACTORY )4 MUTUAL INSURANCE COMPANY, )

Plaintiffs, )5 ) CIVIL ACTION NO.

VERSUS ) 5:11-CV-000176 )

DEEP SOUTH EQUIPMENT )7 COMPANY, ET AL, )

Defendants. )89

1011 REPORTER'S CERTIFICATION12 DEPOSITION OF JOHNNY THORNTON13 VOLUME 2 OF 214 NOVEMBER 15, 20121516 I, Julie C. Brandt, Certified Shorthand Reporter in17 and for the State of Texas, hereby certify to the18 following:19 That the witness, JOHNNY THORNTON, was duly sworn20 by the officer and that the transcript of the oral21 deposition is a true record of the testimony given by22 the witness;23 That the deposition transcript was submitted on24 ____________________ to the witness or to the attorney25 for the witness for examination, signature and return to

Page 349

1 me by ____________________;2 That the amount of time used by each party at the3 deposition is as follows:4 MR. MARICLE.....00 HOUR(S):43 MINUTE(S)5 MR. GREY.....01 HOUR(S):53 MINUTE(S)6 MR. PROVOSTY.....00 HOUR(S):04 MINUTE(S)7 MR. SMITH.....00 HOUR(S):00 MINUTE(S)8 MR. ROGERS.....00 HOUR(S):00 MINUTE(S)9 That pursuant to information given to the

10 deposition officer at the time said testimony was taken,11 the following includes counsel for all parties of12 record:13 FOR THE PLAINTIFFS:14 Bruce H. Rogers

BROWN DEAN15 306 W. 7th Street, Suite 200

Fort Worth, Texas 7610216 817.820.1120

[email protected]











35 (Pages 350 to 351)

Page 350

1 FOR NACCO MATERIAL HANDLING GROUP:2 Francis J. Grey, Jr.

LAVIN, O'NEIL, RICCI, CEDRONE & DISIPIO3 190 N. Independence Mall W.

Suite 5004 Philadelphia, Pennsylvania 19106

215.351.75405 [email protected] William M. Bass

VOORHIES & LABBÉ7 700 St. John Street, 4th Floor

Post Office Box 35278 Lafayette, Louisiana 70502-3527





504.310.210014 [email protected] FOR VALLEY ELECTRIC MEMBERSHIP CORPORATION:16 Brian Smith (via telephone)

UNGARINO & ECKERT, LLC17 910 Pierremont Road, Suite 351

Shreveport, Louisiana 7110618 318.866.9596

[email protected] That $__________ is the deposition officer's21 charges to the Defendant Deep South Equipment Company,22 Inc. for preparing the original deposition transcript23 and any copies of exhibits;24 I further certify that I am neither counsel for,25 related to, nor employed by any of the parties or

Page 351

1 attorneys in the action in which this proceeding was2 taken, and further that I am not financially or3 otherwise interested in the outcome of the action.4 Certified to by me ______________________, 2012.567 ___________________________________

Julie C. Brandt, CSR, RMR, CRR8 Texas CSR No. 4018

Expiration Date: 12/31/129

Merrill Corporation10 Reg. No. 191

4144 North Central Expressway11 Suite 850

Dallas, Texas 7520412 800-966-456713141516171819202122232425


UNITED STATES DISTRICT COURT WESTERN DISTRICT OF … Case 5:11-cv-00017-MLH Document 182 Filed...

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