Will Your Fire Investigation testimony hold up in court?

BY GEORGE A. CODDING

Today, going to court is stressful for the average fire investigator. Not that it was any easier 15 years ago, but at that time, experts simply described their qualifications and experience to the judge and based on that alone were often allowed to offer their opinions at a trial. Today, the courts take a more active role in screening an expert before trial, looking much more closely at the investigation and theories behind the testimony. In fact, a recent federal court decision threw out the testimony of several highly qualified fire experts on scientific grounds. How did things change so much? What do fire investigators need to do to keep this from happening in their court cases?

An important change for expert witnesses came in 1993 when a landmark Supreme Court case declared the standards that federal courts would use to decide whether an expert will be allowed to testify. Daubert v. Merrell Dow Pharmaceuticals, Inc. only controls cases in federal court, but many state court systems use similar approaches. An opposing party can now file a “Daubert motion,” which requires a testifying expert to defend the methodology and procedures used in the investigation. This motion may require the fire investigator to testify extensively to the judge before the trial takes place. If the judge decides that the expert’s conclusions are not supported by solid knowledge and methods, the testimony may be limited or disallowed altogether. Since it is hard to predict which fires will result in court cases, fire investigators must be prepared to meet the Daubert challenge before and during all of their investigations.

According to the Rules of Evidence, the federal judge’s ruling will be based on a three-part test: 1. Does the expert’s science or discipline use reliable principles and methodology? 2. Were those principles and methods “reliably applied” to the case at hand? and 3. Are the data supporting the opinions sufficiently reliable?

In the appeal case, Truck Ins. Exchange v. MagneTek, Inc. (360 F.3d 1206 (10th Cir. 2004)), experts found a fluorescent light ballast in the area of origin of a restaurant fire. They tested a similar ballast, which they found could reach temperatures as high as 300°F under electrical short conditions. They concluded that at these temperatures, nearby wood could char over a long time period and eventually ignite. The fluorescent light ballast manufacturer was sued for product liability based on this theory, and its attorneys filed a Daubert motion to require the plaintiff to substantiate the theory with research and literature. After a hearing, the courts found that this limited area of science or expertise, long-term pyrolysis at 300°F, was not based on “reliable principles or methods.” They said that the literature they were given provided only vague ignition parameters, leaving many questions unanswered. Therefore, the first part of the three-part test was not met. The courts threw out the testimony and ultimately dismissed the plaintiff’s case altogether.

This case holds valuable lessons for fire investigators. Most importantly, it is a reminder that all experts are expected to be able to defend their “science” in court, often on a step-by-step basis. This can take a significant amount of preparation and research. You may be called to support the methodology of fire investigation in general or your own methodology, or you may have to defend a specific theory of ignition as the experts were required to do in the MagneTek case.

To meet this challenge, start now by familiarizing yourself with and following accepted methodologies or systems for fire investigation such as those contained in National Fire Protection Association 921, Guide for Fire and Explosion Investi-gations. Although not a “standard,” this publication in particular has been accorded great weight by the courts in evaluating whether an investigation was done using acceptable methods. Fire investigators in the United States should be thoroughly familiar with both the methods and the science that are promoted in this standard. Make sure the methodology that you use is not in conflict with this document or other widely accepted guidelines.

Also, take care that the technical or scientific knowledge that you use is up to date with your peers and the industry. Some of the knowledge that was taken for granted by fire investigators in past decades has been discredited or revised. Note that Daubert provided the courts with some factors they can use to evaluate any discipline or theory itself, such as whether it is supported by testing, publication, or peer review; whether there are error rates; and whether it has general acceptance within a given expert community. You may need to address factors like these when you testify in court.

Once your methodology is in place, make sure that you follow it on a regular and systematic basis. By so doing, you will be able to demonstrate that the second part of the judge’s inquiry has been met, that your methods were “reliably applied” to the facts of the case.

How you will defend the theory of ignition will, of course, depend on what you have learned in your investigation. For example, you may have to support your conclusion that a particular heat or ignition source ignited a certain fuel. If you have decided that an electric stove provided the ignition source, can you show the temperature of the heating element? Also, can you demonstrate that the fuel first ignited is capable of igniting at that temperature? You may be able to refer to literature, texts, and reports for these data, and you may be able to conduct your own experiments or tests to support your theory. Follow your ignition theory through step-by-step to be sure that each assumption or conclusion is supported by the current knowledge, science, and reference materials. To make sure the analysis is sound (and to eliminate other possible causes), use the scientific method described in NFPA 921.

The MagneTek case controls only future court decisions in the Tenth Circuit (including the federal courts of Colorado, Kansas, New Mexico, Oklahoma, Utah, and Wyoming), but it could be persuasive to courts anywhere in the United States. It strongly suggests that more research and testing are needed to define the long-term pyrolysis process before it will be a useful theory in court. Fire investigators should be aware of the legal problems that this theory has when deciding whether to rely on it for their conclusions. If they are involved in a long-term pyrolysis case, they should make sure the attorneys with whom they are working are aware of the MagneTek decision.

When a civil or criminal case is filed, communicate with the attorney who is (or may be) calling you as a witness. Find out what standards will apply to your testimony, what preparation will be needed, and whether any more research or documentation is required. Of course, many attorneys know little about fire science and investigation; the attorney may well need your help to understand what happened in the fire.

Regardless of the court in which you present your investigation report, your presentation and credibility will be greatly enhanced if you use accepted methods, investigate in a systematic way, and make sure that solid knowledge and research exist to back up all of the conclusions in your report.

GEORGE A. CODDING is a state fraud prosecutor in Denver, Colorado. A practicing attorney since 1989, he served as a deputy district attorney prosecuting felony cases, including white-collar crime and arson, and worked in a law firm handling insurance litigation. A 17-year veteran of the fire service, Codding is a fire investigator for the Louisville Fire Protection District and chair of a multiagency fire investigation team. He has served as a firefighter and fire officer and is a National Association of Fire Investigators-certified fire and explosion investigator (CFEI), a member of the International Association of Arson Investigators (IAAI), and a member of its Attorneys’ Advisory Committee. He is a Colorado-certified peace officer, firefighter II, and EMT and has instructed on issues relating to arson, fire investigation, and criminal law.

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