Flynn V Thermacell Repellents Inc
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
ORLANDO DIVISION
JACQUELINE FLYNN,
Plaintiff,
v. Case No: 6:23-cv-1890-PGB-DCI
THERMACELL REPELLENTS,
INC. and LOWE’S HOME
CENTERS, LLC,
Defendants.
/
ORDER
This cause is before the Court on Defendants’ Revised Daubert Motion to
Exclude Anonymous Opinions in the Fire Rescue Report and Fire Chief
Wienckowski’s Alleged Opinions. (Doc. 95 (the “Motion”)). The Plaintiff
submitted a response in opposition. (Doc. 101). Upon consideration, the Motion is
denied because the alleged opinions do not constitute expert or lay witness opinion
testimony. For the sake of clarity, the Court also addresses in this Order lay witness
opinions that are admissible.
I. BACKGROUND
The Defendants seek to exclude findings, which they describe as expert
opinions, contained in the Orange County Fire Rescue Report (Doc. 95-1 (the
“Report”)), that the fire damaging the Plaintiff’s home was caused by the
Thermacell Patio Shield. (Doc. 95, pp. 1–4). Lieutenant Lizbeth Desio (“LT
Desio”) states in the Report that:
Per home owner [sic], fire started in the second[-]floor patio
from a ‘Thermocell Patio Shield Mosquito Repellent’ device.
She [Flynn] stated that she followed manufacturer directions
and placed the device on a patio table with no flammable
objects in its immediate vicinity, ignited the device and when
she returned to the device several minutes later, the device
had caught on fire.
(Id. at pp. 3–4 (quoting Doc. 95-1, p. 4)).
The Defendants also seek to exclude findings attributed to Fire Chief Garrett
Wienckowski (“Chief Wienckowski”) in Plaintiff’s Amended Answers to
Interrogatories that “the Thermacell Patio Shield product was the origin and cause
of the January 21, 2021, fire which damaged the Flynn’s home in Orlando, Florida.”
(Id. at p. 3 (quoting 95-2, pp. 2–3)).1 The Defendants claim that LT Desio and Chief
Wienckowski’s findings, or opinions, that the fire originated with the Patio Shield
must be excluded, because they are based on the incorrect impression that the
Plaintiff observed the Patio Shield to have caused the fire, and otherwise fail to
satisfy the Daubert standard for admissibility. (Id. at pp. 5–7).
The Plaintiff responds that the Report is admissible under Federal Rule of
Evidence 803(b) as a business record. (Doc. 101, p. 6). The Plaintiff also contends
that Chief Wienckowski’s opinions regarding the cause of the fire are admissible
based on his observations at the scene and information learned from witnesses.
(Id. at pp. 7–8). The Plaintiff argues that Chief Wienckowski should not be
1 As discussed below, Chief Wienckowski did not identify the cause of the fire.
prevented from testifying to the following opinions: (1) the damage is consistent
with the fire starting on the second-floor balcony; (2) no evidence suggests an
electrical fire; (3) the fire was accidental; and (4) information learned from
witnesses (that the Patio Shield caused the fire). (Id. at p. 8).
II. LEGAL STANDARDS
The Daubert standard is properly summarized in the Defendants’ Motion.
Defendants note that Federal Rule of Evidence 702 permits “[a] witness who is
qualified as an expert by knowledge, skill, experience, training, or education” to
testify in the form of an opinion. Rule 702 imposes an obligation on district courts
to act as gatekeepers “to ensure that speculative, unreliable expert testimony does
not reach the jury” under the mantle of reliability that accompanies “expert
testimony.” McCorvey v. Baxter Healthcare Corp., 298 F.3d 1253, 1256 (11th Cir.
2002); see Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579, 589 (1993). This
gatekeeping role applies “not only to testimony based on ‘scientific’ knowledge, but
also to testimony based on ‘technical’ and ‘otherwise specialized’ knowledge.”
Kumho Tire Co. v. Carmichael, 526 U.S. 137, 141, 147–48 (1999).
The party offering an expert opinion has the burden of establishing three
criteria by a preponderance of the evidence: qualification, reliability, and
helpfulness. See McClain v. Metabolife Int’l, Inc., 401 F.3d 1233, 1238 (11th Cir.
2005); Rink v. Cheminova, Inc., 400 F.3d 1286, 1292 (11th Cir. 2005). That said,
“neither Daubert nor its progeny preclude experience-based testimony.” Butler v.
First Acceptance Ins. Co., 652 F. Supp. 2d 1264, 1272 (N.D. Ga. Aug. 17, 2009)
(quoting Kumho Tire, 526 U.S. at 151). “When an expert relies primarily on
experience, the witness must explain how that experience leads to the conclusion
reached, why that experience is a sufficient basis for the opinion, and how that
experience is reliably applied to the facts.” Id. (quoting U.S. v. Frazier, 387 F.3d
1244, 1261 (11th Cir. 2004)).
While the parties focus on the standard announced in Daubert, they
overlook the fact that “[Federal] Rule [of Evidence] 701 does not prohibit lay
witnesses from testifying based on particularized knowledge gained from their own
personal experience. United States v. Hill, 643 F.3d 807, 841 (11th Cir. 2011). Thus,
a lay witness may offer opinions that are “rationally based on the witness’s
perception”; “helpful to clearly understanding the witness’s testimony or to
determining a fact in issue”; and “not based on scientific, technical, or other
specialized knowledge within the scope of Rule 702.” United States v. Jeri, 869
F.3d 1247, 1265 (11th Cir. 2017). For example, a law enforcement officer who read
and listened to thousands of wiretap conversations may testify about the meanings
of code words that he learned during the investigation. United States v. Jayyousi,
657 F.3d 1085, 1103–04 (11th Cir. 2011); see also Eberhart v. Novartis Pharms.
Corp., 867 F. Supp. 2d 1241, 1252–53 (N.D. Ga. Mar. 6, 2023) (permitting treating
physicians to testify as lay witnesses on matters that may resemble expert
testimony where such testimony is only “offered for the purpose of explaining the
physician’s decision-making process or the treatment provided”); Tampa Bay
Shipbuilding & Repair Co. v. Cedar Shipping Co., 320 F.3d 1213, 1218 (11th Cir.
2003) (allowing project manager to testify as a lay witness to whether bill was
reasonable for repairs to ship’s rudder).
III. DISCUSSION
The Defendants seek to exclude the information contained in the Report
appearing on page one under the heading “Cause of Ignition: Failure of equipment
or heat source,” and the Narrative on page four wherein LT Desio writes that the
homeowner identified the Thermacell Patio Shield as causing the fire. (Doc. 95, p.
2 (quoting Doc. 95-1, pp. 1, 4)). The Defendants incorrectly characterize the
statements attributing the fire to the Patio Shield as opinions and mislabel the
opinions as anonymous. The Defendants are correct in that LT Desio wrote in the
Report that the homeowner stated the “fire started in the second[-]floor patio from
a ‘Thermacell Patio Shield Mosquito Repellent’ device.” (Doc. 95-1, p. 4). And
Defendants are also right that LT Desio could not recall if this information was
obtained from the Plaintiff or Chief Wienckowski. (Doc. 95-8, 12:21–13:11; 18:12–
17). That said, Chief Wienckowski testified that he assumed LT Desio provided this
information from the homeowner. (Doc. 95-7, 6:13–24, 9:14–21). Chief
Wienckowski also testified that he has no opinion concerning the cause of the fire.
(Id. 7:14–20; 19:2–17).
Since Chief Wienckowski is not the source of the contested statement in the
Report, a simple process of elimination shows that LT Desio is. Accordingly, the
information is not anonymous. It is also not an opinion. Neither Chief
Wienckowski nor LT Desio opine that the fire on the second-story balcony was
caused by the Patio Shield. They merely repeat what LT Desio believes the
homeowner said about the cause of the fire.2 And the homeowner’s statement is
hearsay. The business records exception does not change this conclusion since the
Plaintiff’s statement to LT Desio is hearsay within hearsay. See FED. R. EVID. 805.
The Plaintiff, however, will be available to testify about the sequence of events
culminating in the fire.3
To avoid confusion, the Court will address the admissible lay witness
opinions offered by LT Desio and Chief Wienckowski. LT Desio testified that her
fire engine was first on scene around 8:19 p.m. (Doc. 95-8, 6:1–17, 9:7–17). When
she arrived, fire was observed emitting from the rear balcony of the home located
on the second floor. (Id. 29:20–24). LT Desio further testified that, based upon her
observations at the scene, there is no indication that the fire began anywhere other
than the second-floor patio. (Id. 40:12–20). LT Desio’s opinion that the fire began
on the second-floor balcony is based on her personal observations as informed by
26 years in the fire department and is properly admitted under Rule 701. See FED.
R. EVID. 701. Chief Wienckowski also concluded from his personal observation that
the fire started on the second-floor balcony. (Doc. 95-7, 8:22–23, 26:13–25). The
2 LT Desio testified, “I can’t recall who exactly gave me the info but I wrote down what I was
told.” (Doc. 95-8, 12:21–13:11). An opinion, either expert or lay, requires more than merely
repeating what one is told by a third party.
3 The Plaintiff testified that around 7:15 p.m. on the night of the fire, she placed the Thermacell
Patio Shield on the table located on the second-story patio and turned it on. (Doc. 95-6, 29:16–
19, 36:8–17, 39:4–18, 42:12–20). Around 7:30 p.m. to 7:45 p.m., her family sat down to
dinner, and by 8:00 p.m., a family member saw flames from the upstairs patio. (Id. 48:19–23,
49:7–18).
Chief also concluded the fire was accidental and testified there is no information
to suggest this was an electrical fire. Ud. 27:23—-28:22). These lay witness opinions
by LT Desio and Chief Wienckowski are based on their observations as informed
by years of experience and are properly before the jury.
IV. CONCLUSION
For these reasons, the Defendants’ Revised Daubert Motion to Exclude
Anonymous Opinions in Fire Rescue Report and Fire Chief Wienckowski’s Alleged
Opinions (Doc. 95) is DENIED.4
DONE AND ORDERED in Orlando, Florida on July 22, 2025.
/
PAUL G.
UNITED STATES*DISTRICT JUDGE
Copies furnished to:
Counsel of Record
Unrepresented Parties
4 The Court has found that neither LT Desio nor Chief Wienckowski has offered opinions that
the Thermacell Patio Shield caused the fire, and so the Plaintiff may not represent such to the
jury in her opening statement.