SUPREME COURT DECISION: IMPACT ON FIRE INVESTIGATION
BY GERARD J. NAYLIS
In 1993, the U.S. Supreme Court delivered its opinion in the case of Daubert v. Merrell Dow Pharmaceuticals, 509 U.S. 579 (1993). In Daubert, Jason Daubert sued Merrell Dow Pharmaceuticals in California claiming that a drug for morning sickness manufactured by Merrell and taken by his mother during her pregnancy caused his birth defects. The judge in that case refused to allow experts for Daubert to testify before the jury–even though they had substantial credentials–because their theories were not generally accepted by the scientific community. The decision was appealed. The Supreme Court ruled in favor of Daubert, stating that a plaintiff doesn`t have to show that his scientific evidence has been generally accepted in the relevant scientific community. The High Court held that the trial court, as “gatekeeper,” must assess whether “scientific” testimony or evidence is both relevant and reliable, using four general criteria to objectively measure reliability. Since the Daubert decision, there has been significant controversy over the types of expert testimony that should be subjected to scrutiny by the trial court under the Daubert standard.
Carmichael v. Kumho Tire. The U.S. Supreme Court has recently granted review in an appeal filed by Kumho Tire Company, Ltd. Kumho, a tire manufacturer, has petitioned the high court seeking reversal of an 11th Circuit Court of Appeals ruling that held that Daubert factors should not apply to testimony of a nonscientific expert [131 F.3d 1433 (11th Cir. 1997)].
In Carmichael, the plaintiff brought a product liability action against a tire manufacturer and tire distributor for injuries sustained when a tire on his vehicle failed. The Federal District Court barred the plaintiff`s expert`s testimony after finding that his methodologies did not pass Daubert scrutiny. The expert concluded that the tire was defective without conducting any scientific testing, relying on visual examination of the tire using his extensive experience in evaluating tires over many years.
On appeal to the 11th Circuit, the Court reversed the District Court`s decision, holding that the trial judge incorrectly applied Daubert when it excluded plaintiff`s expert. The 11th Circuit held that in this case, the testimony of the plaintiff`s expert was not scientific and thus was not subject to Daubert inquiry. The Court reasoned that the expert`s opinion was not based on any scientific theory of physics or chemistry; rather, his opinion was simply based on his experience in analyzing failed tires.
In connection with Kumho`s appeal to the U.S. Supreme Court on this important issue, the International Association of Arson Investigators (IAAI) joined in an amicus brief1 prepared by a number of law enforcement organizations supporting the Carmichael position. The amicus brief argued that the Daubert factors should apply only to expert testimony regarding “novel” or “junk” science and should not apply to every type of opinion that could implicate or be indirectly based on scientific principles, theories, techniques, or data. The brief distinguished experts whose specialized technical knowledge comes from a combination of training and experience vs. experts whose testimony is based on “novel” science issues that have not been adequately tested or scientifically verified to be considered sufficiently reliable to be presented to a jury.
Michigan Millers Mutual Insurance v. Benfield. The 11th Circuit Court of Appeals also decided the Michigan Millers Mutual Insurance v. Benfield case.2 Unlike its holding in the Carmichael case, however, the 11th Circuit, in the Benfield case, upheld the trial court`s decision to exclude a fire expert`s testimony based on Daubert. In Benfield, the 11th Circuit barred the testimony of a fire investigator on the basis that he had not complied with the scientific method. The IAAI also filed an amicus brief in Benfield, urging the Court to apply Daubert only to scientific experts and not to fire investigator experts whose training and experience otherwise qualify them to render an opinion. The 11th Circuit did not directly decide the amicus issue in that case because it determined the investigator was testifying as a “scientific” expert, without having to decide whether fire investigation is primarily scientific or technical in nature.
Therefore, in the 11th Circuit (and in other jurisdictions that have adopted a similar interpretation of Daubert), fire investigators should tread lightly when qualifying as experts, particularly when attempting to adopt the “scientifically based” National Fire Protection Association (NFPA) 921, Guide for Fire and Explosion Investigations (1998), methodology. The inference is that the fire investigation community must use the scientific method and the commonly accepted terms of art in the field. The result could be that fire investigators` testimony will be looked on as scientific testimony that will require scientific verification of the methodology used to reach the conclusions in the case. This could pose a formidable challenge to fire investigators. NFPA 921 should be considered a guide, and fire investigators` expert testimony should be based on observation, skills, and experience used to arrive at conclusions through deductive reasoning.
The U.S. Supreme Court ruling in the Carmichael case may have a dramatic impact on fire investigation. The Court will decide whether to apply Daubert factors to all expert testimony without regard to the expert`s practical qualifications or limit its application to scientific evidence cases only. A decision is expected sometime during this Court session, which ends in June. n
Endnotes
1. Amicus curiae: A professional person or organization not a party of a particular litigation that is permitted by the court to advise it in respect to some matter of law directly affected by the case in question. Merriam Webster`s Collegiate Dictionary, Tenth Edition.
2. In this case, the trial court refused to allow the fire investigator hired by Michigan Millers to testify on the basis that he “was not even qualified to render an opinion in court because he allegedly failed to meet the standard of the U.S. Supreme Court ruling in Daubert.”
n GERARD J. NAYLIS has been a volunteer in the Bergenfield (NJ) Fire Department for 26 years and previously had been a career firefighter in the Atlantic City (NJ) Fire Department for 10 years. He is the Second Vice President of the International Association of Arson Investigators, a member of the Arson Conference Planning Committee at Rutgers University in New Jersey, and a member of the Bergen County Juvenile Fire Prevention Program Advisory Board.
