SOUTHEAST TEXAS RECORD

AUSTIN � Texas Supreme Court justices have corrected appellate court judges in Texarkana who swallowed a far-fetched theory that blamed Wal-Mart for a fatal fire.

On June 18, the justices relieved Wal-Mart of responsibility for the deaths of Charlie Merrell and Latosha Gibson 10 years ago.

They reversed Sixth District appeals judges who ordered Fannin County District Judge Jim Lovett to hold trial against Wal-Mart.

The justices rejected a theory of fire expert Craig Beyler that a halogen lamp from Wal-Mart exploded and dropped burning glass shards on a chair.

"Dr. Beyler may be qualified in fire research, but his testimony in this case lacks objective evidence based support for its
conclusions," their unsigned opinion declared.

Beyler's theory would have fared better if someone had produced a burnt lamp, a shard or a Wal-Mart receipt.

It would have fared better if police hadn't found marijuana and candles at the scene.

"Dr. Beyler did not say why a burning cigarette could not have caused the fire," the justices wrote.

"An expert's failure to explain or adequately disprove alternative theories of causation makes his or her own theory speculative and conclusory," they wrote.

In 2000, Merrell had graduated from Austin College and taken a job as stock broker for A. G. Edwards in Paris.

While he and Gibson slept in a home he rented, a fire started in the living room. They died of smoke inhalation.

Police found a burnt recliner, a damaged pole-style floor lamp, candles, an ashtray, marijuana joints, pipes and a bong.

The fire marshal declared it an accidental fire of unknown origin.

Police photographs showed a lamp, but police didn't preserve it. Landlord Wilma Pearce disposed of it.

Merrell's father, Charles Sr., searched dumpsters but didn't find
it. He offered a $500 reward for it.

Joe Williams, who had covered the house with plywood for Pearce, presented a halogen lamp to Merrell and collected the reward.

Merrell sued Wal-Mart, Pearce and lamp manufacturer, Holmes Group, for his son's estate and as wrongful death beneficiary.

He swore he bought a halogen lamp for his son at a Wal-Mart, though he could not remember the location.

Wal-Mart expert John Lentini claimed the lamp in the photograph was incandescent, rather than halogen.

When Lentini discovered traces of gasoline on the lamp, Williams confessed that he obtained a fresh lamp and burned it.

Lentini blamed the fire on careless smoking.Wal-Mart moved for summary judgment, and Lovett granted it.

Appeals judges in Texarkana reversed him, reciting bare allegations as facts.

"Merrell paid around $30 for the lamp," Justice Jack Carter wrote.

"Because the lamp was a floor model, Merrell did not receive a box, any of the accompanying warnings, or instructions for safe operation," he wrote.

"Wal-Mart did not provide a wire mesh guard with the lamp," he wrote.

Brushing aside the phony lamp, he wrote, "Wal-Mart emphasizes this fraud, but there is no evidence Merrell participated in the deception."

After crediting every accusation against Wal-Mart, he discredited its defenses.

"Wal-Mart failed to conclusively establish the lamp was an incandescent lamp," he wrote.

"Wal-Mart argues throughout its brief that the marihuana joints or cigarettes caused the fire. Wal-Mart, though, has not conclusively established this fact," he wrote.

"While Lentini opined the fire was caused by smoking materials, such testimony only creates a fact issue for a jury's consideration," he wrote.

Texas Supreme Court justices, however, wondered why Beyler didn't dispute Lentini's theory.

They wrote that Beyler "failed to address how he ruled out smoking materials on the basis of not having found evidence of burnt cigarettes there, when there was likewise no evidence of charred or exploded glass (either in the recliner or anywhere else in the house) to support his own theory."

"Evidence that halogen lamps can cause fires generally (assuming that the lamp here was a halogen lamp) does not establish that the lamp in question caused this fire," they wrote.

Douglas Alexander, Susan Vance, Jeffrey Cox and Edward Davis represented Wal-Mart.

Gary Corley and Robert Galloway represented Merrell.