ARE ORIGIN-AND-CAUSE INVESTIGATORS “FIRE SCIENTISTS”?
BY MICHAEL PAVLISIN AND SHEILA K. HORAN
In the now well-known 1993 case of Daubert v. Merrell Dow Pharmaceuticals1 (“Daubert”), the U.S. Supreme Court held that federal trial court judges acting as the “gate keepers of expert testimony” U “must insure that any and all scientific testimony or evidence admitted is not only relevant, but reliable.” The primary concern of the High Court was apparently to screen from the judicial process so-called “scientific experts” presenting “novel” or “junk science” testimony.
The just recently issued U.S. Supreme Court decision of Kumho Tire Company, Ltd. v. Patrick Carmichael2 (“Carmichael”) dramatically expanded Daubert scrutiny to apply to all testifying experts, whether or not “scientific.”
We will explore how those origin-and-cause investigators who seek to comply fully with the recommendations in NFPA (National Fire Protection Association) 921, Guide for Fire and Explosion Investigations (1998 edition), must concurrently seek to satisfy the scrutiny of Daubert and Carmichael (in the federal court system and in those state jurisdictions that adopt these decisions). It may be that the NFPA 921 “methodology,” which references “the scientific method used in the physical sciences,” places origin-and-cause investigators under increased scrutiny by certain “gate keeping” trial judges.
NFPA 921–THE 1998 EDITION
Because the NFPA 921 Committee is diverse in its membership, there was apparently disagreement on that Committee as to the extent to which NFPA 921 should imply that origin-and-cause fire investigators are actually “fire scientists.”
NFPA 921 was prepared by the Technical Committee on Fire Investigations and acted on by the NFPA. This is the third edition of NFPA 921; the first was published in 1992. In its introductory page, NFPA 921 states in part: “The guide is intended for use by both public sector employees U and private sector persons conducting investigations for insurance companies or litigation purposes. The goal of the Committee is to provide guidance to investigators”U (emphasis provided).
NFPA 921 is therefore a guide and not a code or a required practice. However, because the NFPA 921 Committee is made up of a cross-section of respected individuals in the fire investigation profession, NFPA 921 is given credence by many fire investigators. As a result, NFPA 921 may be used as a weapon in the cross-examination of fire investigators.
Quotations from the NFPA 921 Text
NFPA 921 provides in its introductory page that “the goal of the committee is to provide guidance to investigators that is based on accepted scientific principles or scientific research” (emphasis provided).
Chapter 2, “Basic Methodology,” provides in part:
–2-1 Nature of Fire Investigations. A fire or explosion investigation is a complex endeavor involving both art and science U. The basic methodology of the fire investigation should rely on the use of a systematic approach and attention to all relevant details U (emphasis provided).
–2-2 Systematic Approach. The systematic approach recommended is that of the scientific method, which is used in the physical sciences U (emphasis provided).
–2-3 Relating Fire Investigation to the Scientific Method. The scientific method is a principle of inquiry that forms a basis for legitimate scientific and engineering processes, including fire incident investigation (emphasis provided).
Interestingly, the six steps as defined in the “scientific method” heavily emphasize the observations and experience of the investigator:
* U a proper origin and cause investigation should be conducted. This is done by an examination of the scene and by combination of other data collection methods, such as the review of previously conducted investigations of the incident, the interviewing of witnesses or other knowledgeable persons, and the results of scientific testing U (emphasis provided). (2-3.2 Define the Problem)
* U the total body of empirical data collected is carefully examined in the light of the investigator`s knowledge, training, and experience. Subjective or speculative information cannot be included in the analysis, only facts that can be clearly proven by observation or experiment (emphasis provided). (2-3.4 Analyze the Data [Inductive Reasoning]
Chapter 3, “Basic Fire Science,” sets forth certain scientific principles that may be the underlying basis for fire investigation.
Chapter 5, “Legal Considerations,” provides in part:
–5-3 Evidence. Rules of evidence regulate the admissibility of proof at a trial. The purpose of rules of evidence is to ensure that the proof offered is reliable. A goal of every fire investigation is to produce reliable documents, samples, statements, information, data, and conclusions.
It is not necessary that every fire investigator become an expert on rules of evidence. If the practices and procedures recommended within this guide are complied with, the results of the investigation should be admissible (emphasis provided).
–5-7.2 Litigation or Expert Witnesses. U An expert witness is generally defined as someone with sufficient skill, knowledge, or experience in a given field so as to be capable of drawing inferences or reaching conclusions or opinions that an average person would not be competent to reach U. The evidence that forms the basis of any opinion or conclusion should be relevant and reliable and, therefore, admissible.
Chapter 9, “Physical Evidence,” provides in part:
–9-10.2 Test Methods. The following is a listing of selected analytical methods and tests that are applicable to certain fire investigations U (emphasis provided).
(Implying that not all fire investigations necessarily utilize laboratory or scientific testing.)
Chapter 12, “Cause Determination,” provides in part:
–12-6 Opinions. U Use of the scientific method dictates that any hypothesis formed from an analysis of the data collected in an investigation must stand the challenge of reasonable examination. (See Chapter 2.) (See Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S.Ct. 2786 (1993) U (emphasis provided).
(Daubert refers to “scientific” testimony.)
NFPA 921 Is Potentially Troubling for the Investigator
Some provisions in NFPA 921 may be considered to be inconsistent and therefore potentially troubling for the investigator. For example, “basic methodology” is defined as “both art and science.” A “systematic approach” is encouraged but is then defined as the “scientific method, which is used in the physical sciences.” The scientific method is defined as “a basis for legitimate scientific and engineering processes.” However, investigators are also encouraged to heavily utilize their experience and observations in the “art form” aspect of fire investigation.
The Federal Rules of Evidence are referenced, presumably to include Rule 702, which might allow “technical” rather than “scientific” qualification for testimony by the origin-and-cause investigator. There is also a passing reference to Daubert, which seems to warn the origin-and-cause investigator to meet Daubert “scientific expert” scrutiny (Daubert discussed more fully below). NFPA 921 encourages the basis for opinion testimony to be “reliable,” and the reader is assured that compliance with NFPA 921 will result in (reliable) admissible testimony.
In certain jurisdictions, the NFPA 921 “scientific method” terminology has been used against the origin-and-cause investigator when qualifying to testify. With the recent expansion of Daubert “scientific scrutiny” to all experts by Carmichael, origin-and-cause investigators must be especially careful to fully understand NFPA 921 in its entirety. The investigator should be able to clearly articulate which portions of NFPA 921 (as well as other resources) they agree with and adopt as a basis of their method for investigation and opinions.
PRE-DAUBERT: THE FRYE DECISION
Prior to the U.S. Supreme Court`s Daubert decision in 1993, the federal trial courts applied the “general acceptance” test when determining whether an expert`s testimony was admissible. Under the “general acceptance” test, the trial court was only required to compare the proposed expert`s data and method for gathering the data against the methods and standards employed by other experts within the particular area of expertise. If the proposed expert`s methods were “generally accepted” by other experts in the same field, then the requirement was met. The “general acceptance” test derived from a 1923 District Court opinion, Frye v. United States3 (“Frye”). At issue in Frye was the admissibility of evidence derived from an early lie detector test. The Frye Court held that because this test was not yet “generally accepted,” results were inadmissible.
PRE-DAUBERT: FEDERAL RULE 702
Admissibility of expert testimony in the federal courts is also governed by Federal Rule of Evidence 702, which was passed by Congress in 1975. Federal Rule 702 states that “a witness qualified as an expert by knowledge, skill, experience, training or education” may give opinion testimony if, and to the extent, “scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue” (emphasis provided). The purpose of Rule 702 was to add the requirement that the trial court be certain that expert testimony was not only relevant as provided by Frye but also reliable.
DAUBERT
Facts
The Daubert case involved a claim against Merrell Dow Pharmaceuticals. The plaintiff alleged that a morning sickness drug, manufactured by the defendant and ingested by his mother prior to his birth, caused the plaintiff`s birth defects. The plaintiff`s experts based their testimony on research that the morning sickness drug was linked to birth defects in animals. The plaintiff`s experts had to base their testimony on animal studies because there was no research linking the drug to birth defects in human fetuses.
Trial and Appeals Courts Apply Frye–Reject Animal Studies as “Junk Science” (Outside of “General Acceptance”)
The trial court applied the Frye “general acceptance” test to determine whether to admit the testimony of the plaintiff`s experts. Under the “general acceptance” test, the trial court held that the plaintiff`s experts` testimony, which was based on a review of animal studies, was not a “generally accepted” method within the discipline and barred their testimony. The Court of Appeals agreed with the trial court`s analysis, which held that under the Frye “general acceptance” test, the plaintiff`s experts` testimony (based on animal studies) constituted “junk science” and was not admissible as reliable expert testimony.
U.S. Supreme Court Rejects “General Acceptance” Frye Test, Adopts Rule 702, and Adds Four-Part Test
The U.S. Supreme Court threw out the Frye “general acceptance” test applied by the trial and Appellate Courts. The Supreme Court held that the standard for admitting scientific expert testimony should generally follow Federal Rule of Evidence 702, which requires both relevance and reliability. Specifically, the U.S. Supreme Court directed the lower courts to consider the following four-part test when determining whether a scientific expert`s testimony is “scientifically” reliable:
1. whether the technique or theory used may be tested or refuted;
2. whether the technique or theory has been a subject of peer review or publication;
3. the known or potential rate of error of a particular scientific technique; and
4. the degree of acceptance of a theory or a technique within the relevant scientific community.
Daubert Definition of “Scientific”
In Daubert, the Court provided a rather broad definition of the word “scientific,” as referred to in Rule 702: “a grounding in the methods and procedures of science” (emphasis provided). The Court additionally stated that a scientific expert`s “knowledge” means “more than subjective belief or unsupported speculations” (emphasis added). Therefore, the Court determined that the trial court must make an assessment of whether the underlying reasoning and methodology are scientifically valid.
Daubert Limited to Screening “Scientific Experts” But Not Just “Junk Science”
The Daubert Court acknowledged that the Frye decision focused on screening novel scientific techniques. However, when the Daubert Court supplanted Frye with Rule 702, it specifically stated that it did not read the requirements of Rule 702 to be limited to “unconventional evidence.” The Daubert Court did limit the scope of its ruling to “scientific experts” (rather than to other “technical” and “specialized knowledge” experts described in Rule 702).
The potential problem that Daubert consequently imposed on fire investigators using NFPA 921 was that the underlying “scientific method” and use of scientific data were interpreted by some courts to come under the same category as the laboratory scientific scrutiny applicable to the Daubert case, which involved medical laboratory testing. This problem is highlighted in the post-Daubert 11th Circuit Federal case of Michigan Millers Mutual Insurance Co. v. Benfield4 (“Benfield”).
11th FEDERAL CIRCUIT BENFIELD RELIES ON DAUBERT TO STRIKE FIRE INVESTIGATOR`S (NFPA 921) “SCIENCE-BASED” TESTIMONY
Facts
In Benfield, the insurance company denied a residential fire claim. At trial, the insurance company`s expert testified that the fire originated on the top of the dining room table where some papers, articles of clothing, and other combustibles had been piled. An empty bottle of lamp oil was nearby. There were no potential sources for accidental cause except a chandelier over the table.
The company`s expert had 30 years of experience as a fire investigator, having investigated more than 5,000 fires in his career as a private fire investigator and as a fire marshal for the City of Tampa. Notably, the judge reviewed the investigator`s credentials and found him qualified to offer expert testimony at trial as to the origin and cause of the fire. However, after the expert testified to his methodologies, the trial judge granted the insured`s motion to strike the testimony of the expert.
Trial Court and 11th Circuit Appellate Court Use (Presumably) NFPA 921 Wording Against the Investigator
The insurance company in Benfield argued to the 11th Circuit Court of Appeals that Daubert did not apply because the expert`s testimony was not based on “purely scientific” principles. Rather, the basis was his observations of the scene combined with his skill and experience. The International Association of Arson Investigators (IAAI) filed an amicus brief concurring with this position.
The trial and Appellate Courts, however, focused in particular on the following testimony (taken from the transcript) by the origin-and-cause expert:
Q: “Well, let`s just stop for a second, you hold yourself out as an expert in the area of fire science, don`t you?”
A: “Yes.”
Q: “Sir, are you familiar with the scientific method and procedure in your field, in your field (sic), science field, of determining the cause and origin of fires?”
A: “Yes.”
Q: “And did you comply with that accepted method and practice?”
A: “Yes, I did.”
Q: “And as a result of that accepted method and procedure, have you come to the expert opinions you`ve shared with the jury here today?”
A: “Yes, I did.” (Emphasis provided.)
The 11th Circuit Court reasoned that it was proper to bar the expert because the use of the word “science” has potential to carry great weight with the jury, which is the reason the trial judge must act as the gate keeper and monitor the reliability of “science testimony.”
11th Circuit Critical of “Scientific” Methodology for Fire Investigation
The insurance company argued that even if Daubert scientific scrutiny applied to the expert`s testimony, it was supported by reliable procedures and scientific methods and therefore met the Daubert criteria. The 11th Circuit seemed to reject the value of observation, experience, and deductive reasoning while being critical of the conclusion that the fire was incendiary, based on his inability to determine the exact ignition source of the fire.
The Court criticized the expert for not performing any tests and for not taking any samples as a part of his investigation. Additionally, the Court focused on the fact that at trial, the expert was “unable to describe the chandelier” that was hanging over the table and, further, was unable to describe the methodology by which he eliminated the chandelier as an ignition source for the fire.
Fire Department Investigator`s Testimony Allowed
It is very interesting to note that the fire department`s origin-and-cause investigator in Benfield gave similar causation opinions based on similar evidence–which were allowed into evidence by the trial court. The fire department investigator did not use the word “science” in his testimony. Rather, he emphasized his experience and was apparently qualified to testify alternatively as a “technical” expert under Rule 702.
CARMICHAEL– U.S. SUPREME COURT EXPANDS DAUBERT “SCIENTIFIC SCRUTINY” TO ALL EXPERTS (WHETHER “SCIENTIFIC” OR NOT)
On March 23, 1999, the U.S. Supreme Court dramatically expanded the application of Daubert “scientific” scrutiny to apply to all experts–whether “scientific” or not. The Court held that Rule 702 does not distinguish in its requirement that testimony be reliable, whether the knowledge is “scientific,” “technical,” or “other specialized.”
Facts
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 plaintiff`s expert witness was a mechanical engineer who was well credentialed. He had a master`s degree in engineering, had worked as a consultant in the area of tire failure on a number of cases, and had worked for Michelin America for 10 years in the field of tire design. However, the expert relied primarily on his observations in examination of the tire as the basis for his opinions.
The District Court barred the plaintiff`s tire expert under Daubert even though he was not claiming a “scientific” basis for his opinion. The 11th Circuit Court of Appeals overturned the lower court`s application of Daubert. The 11th Circuit Court held that the Daubert analysis should not apply to all expert testimony but instead Daubert should only apply when evaluating the reliability of witnesses who claim “scientific expertise.”
The IAAI, among other organizations, including law enforcement, joined in an amicus brief in support of the Carmichael 11th Circuit decision, which allowed a “technical” expert to testify without a “scientific methodology.”
Impossible to Define “Scientific” Expert
The U.S. Supreme Court in Carmichael stated “it would prove difficult, if not impossible, for judges to administer evidentiary rules under which a `gate keeping` obligation depended on a distinction between `scientific` knowledge and the `technical` or `other specialized` knowledge, since there is no clear line dividing the one from the others and no convincing need to make such distinctions.”
The High Court in Carmichael reasoned that the Federal Rule 702 does not distinguish between scientific and nonscientific experts in requiring that their reliability be tested. The Carmichael Court therefore adopted Federal Rule 702 and added the Daubert scrutiny to apply to all experts. (A proposed amendment to Rule 702, which will very likely soon be adopted by Congress, will apparently be consistent with Carmichael, clarifying that there is no distinction in the requirement for reliability between scientific and nonscientific experts.)
Flexibility in Application of Daubert Factors
Significantly, the High Court also provided that the Daubert scrutiny is “flexible,” in that a trial court has great leeway in determining which, if any, Daubert factors may apply in its determination as to whether or not the proposed expert testimony is reliable. The Court held that the Daubert factors do not constitute a definitive checklist or test and that the gate-keeping inquiry must be tied to the particular facts. The Daubert factors may or may not be pertinent in accessing reliability. Depending on “the nature of the issue, the expert`s particular expertise, and the subject of his testimony in determining whether particular expert testimony is reliable, the trial court should consider the specific Daubert factors where there are reasonable measures of reliability.”
The Court therefore logically recognizes that there is a wide continuum of experts in which it is difficult to pigeonhole them into a definition of a purely “scientific” expert. However, all experts, including origin-and-cause investigators, whether claiming to be “scientific” or not, may be now in the very broad discretion of the trial judge and be subjected to very strict “scientific” scrutiny, as provided in Daubert.
Approval of Observation Testimony–Methodology Is the Key
A positive development for fire investigation is that the U.S. Supreme Court in Carmichael does not object to use of observation and interpretation by testifying experts. In fact, the Court specifically approved of determination of tire failure by visual inspection.
Rather, the court focused on the reliability of the methodology of the expert and found that with respect to the Carmichael expert`s methodology, the engineer could stand up to none of the Daubert factors or any other countervailing factors the Court could find outside of the Daubert factors.
The Court did not approve of a “two-factor” test, which apparently was not generally accepted in the industry. The Court also disapproved of the purely subjective application of this test, without backup of industry data or literature. The Court essentially did not want to accept testimony as reliable just because the expert said it was reliable (even though the expert was otherwise well credentialed).
Broad “Gate Keeping” Authority Given to the Trial Court (Instead of Jury) to Decide Reliability of Experts
The U.S. Supreme Court was very broad, and perhaps vague, in giving (and increasing even further) authority and discretion to the federal trial court in its “gate keeping” role for determining reliability of experts. The trial court, not the jury, decides the reliability of the expert. “The conclusion, in our view, is that we can neither rule out, nor rule in, for all cases and for all time the applicability of the factors mentioned in Daubert, nor can we now do so for subsets of cases characterized by category of expert or by kind of evidence. Too much depends on the particular circumstances of the particular case at issue.” The Court gives great latitude to the trial court to apply any reasonably connected factors, including the Daubert factors, to determine whether an expert`s testimony is reliable.
SUMMARY
NFPA 921
We have been circumspect about certain contradictions NFPA 921 may arguably impose. Can the use of this guide effectively guarantee admissibility of expert testimony as it promises to do? The answer will depend on the particular jurisdiction and trial judge interpreting Daubert/Carmichael.
In fairness to the NFPA 921 Committee, the goal to provide fire investigation with cutting-edge knowledge concerning the application of scientific principles is a noble one. In fact, NFPA 921 is more important than ever as a resource to fire investigators. It will be needed, along with other treatises, to prove the reliability of scientific principles that underlie the basis of fire causation opinions.
NFPA 921 clearly and prominently states, however, that “a fire or explosion investigation is a complex endeavor involving both art and science” (emphasis provided). Herein lies the potential confusion in the application of Daubert/Carmichael.
Daubert/Carmichael
We are critical of the restrictive interpretation of Daubert by the (pre-Carmichael) Benfield Court and others. That is, Daubert was interpreted, at least in the 11th Circuit and in other restrictive jurisdictions, as a black-and-white proposition: Either fire investigation is a pure “fire science” or it is not. In reality, as is acknowledged by the U.S. Supreme Court in Carmichael, reliable testimony by experts can range along a wide continuum, from “pure” science using testing methodology (such as the medical laboratory studies referenced in Daubert) to almost exclusively observation, deductive reasoning, and technical experience, with reliance on limited scientific principles.
We believe that the U.S. Supreme Court`s perception of the engineering expert in Carmichael and the origin and cause fire expert in Benfield would not be significantly different. Each based his opinion on a mix of observation, experience, and (presumably) certain scientific principles. The mechanical tire engineer clearly had to rely on certain scientific principles and/or prior testing data when using his experience to form his observations. Similarly, the origin- and-cause investigator will normally utilize certain well-established scientific principles (not junk science) to apply to his “art form” observation and deductive reasoning. The art form and scientific principles are intermixed for ultimate efficiency.
For an origin-and-cause fire investigator to have to defend himself as a “fire scientist” under NFPA 921 (as in Benfield) may therefore place him in an awkward position under cross-examination at trial–that is, if perceived as a “pure scientist,” the origin-and-cause investigator may be held to reliability standards higher than appropriate for the “degree of science” involved.
It may be a prudent course, if not entirely realistic, to qualify the origin-and-cause fire expert as “technical.” However, under Carmichael, the expert will still have to defend the reliability of each of the scientific principles on which he relies. He will hopefully not have to justify his testimony as a pure (laboratory) scientist, which would presumably subject him to greater scrutiny.
We had hoped that the U.S. Supreme Court would clarify the Daubert decision in Carmichael to restrict the trial court`s scientific “gate keeping” to “pure science” in the context of unconventional or “junk science,” to rightfully protect the court system from speculation. This would pose no significant threat to the admissibility of fire investigation opinions, since underlying scientific principles are usually long-standing and well-established and would therefore not come within the “junk science” scrutiny.
However, now that the High Court has decided to extend the authority of the federal trial court to apply scrutiny to all experts, it must be recognized that origin-and-cause investigators may come within “pure scientific” scrutiny and must therefore anticipate this possibility.
CONCLUSION
Are Origin and Cause Investigators “Fire Scientists?”
We obviously cannot predict the future interpretation by federal trial courts of NFPA 921 vis a vis Daubert/Carmichael. Prior inconsistent interpretation of Daubert in jurisdictions throughout the country is proof of the volatility of this issue.
NFPA 921 might possibly be interpreted by a federal trial court (or a state court adopting Daubert/Carmichael) to mean that origin- and-cause fire experts are “fire scientists.” It might also be interpreted that the distinction between a “fire scientist” and an investigator with “technical” knowledge is meaningless now under Daubert/Carmichael, because the Daubert factors may now be applied to all experts, whether scientific or not. Carmichael will obviously give the trial court a very broad discretion to utilize any level of strictness (within reason) to test the reliability of the expert.
A trial court, such as in Benfield, might take offense at the perception that the origin-and-cause expert is holding himself out as a “pure (laboratory) scientist”–even if the fire expert is not intending to project a “pure science” qualification. It is almost certain that the NFPA 921 “scientific method” will be scrutinized carefully by the trial courts, given that the methodology of the expert is crucial to determining reliability (and admissibility). The trial courts may explore in great detail the basis for any reference to the word “science.”
A key question will therefore be whether trial courts decide to apply a stricter reliability standard to an origin-and-cause expert who holds himself out as a “fire scientist” rather than as an expert who systematically uses observations, experience, and the application of certain scientific principles.
It Is Crucial That the Origin-and-Cause Investigator Be Familiar with NFPA 921 in its Entirety
It is quite possible that the trial courts will disregard the expert`s self-characterization when determining whether or not the methodology used by the investigator is “reliable.” Whether or not the origin-and-cause investigator decides to adopt or reject certain portions of NFPA 921 (for example, to emphasize “scientific methodology” instead of “systematic approach”), the origin-and-cause investigator will still be required, under Carmichael, to justify the reliability of any scientific principles that are the basis of his investigation and opinion. Arguably, the value of NFPA 921 as a resource has increased even further due to Daubert/Carmichael. n
Endnotes
1. Daubert v. Merrell Dow Pharmaceuticals, 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed. 469 (1993).
2. Kumho Tire Company, Ltd., v. Patrick Carmichael, Case No. 97-1709 LEXIS 2189 (1999).
3. Frye v. United States, 54 App. D.C. 46, 293 F. 1013 (1923).
4. Michigan Millers Mutual Insurance Co. v. Benfield, 140 F.3d 915 (11th Cir. 1998).
Opinions expressed herein are solely those of the authors. Copyright reserved 1999 to M.J. Pavlisin and S. K. Horan.
n MICHAEL PAVLISIN is a partner with the Chicago-based law firm of O`Hagan, Smith & Amundsen. He chairs the firm`s Property Insurance Practice Group and is also General Counsel to the International Association of Arson Investigators, Inc. (IAAI).
n SHEILA K. HORAN is an associate attorney with O`Hagan, Smith & Amundsen and concentrates on property coverage and fraud.
