Learning From Others’ Mistakes

Learning From Others’ MistakesThe National Fire Protection Association’s publication NFPA 921: Guide for Fire and Explosion Investigations (“NFPA 921”), was first issued in 1992, and is now widely accepted as the recognized standard in the fire investigation industry.1 Even so, some attorneys and experts still have difficulty using NFPA 921 to convince courts that their reasoning and methodology is reliable under the Daubert factors.2 Reviewing these recent examples of their errors might help us to avoid making the same mistakes.

Lesson One: Select a Proper Expert

Selecting the wrong expert can easily cause a party to “lose” their case before it even gets to trial. A prime example is Dorn v. BMW of North America, LLC, 2010 WL 3913226 (D.Kan. 2010). The Dorn litigation arose out of a fire that occurred in the plaintiffs’ garage and originated in their car.3  The Plaintiffs’ complaint sounded in product liability, negligent manufacture and design and breach of warranties.

By all appearances, the plaintiffs’ expert was highly qualified. He was a Certified Fire Investigator, a Nationally Certified Fire and Explosion Investigator and a Nationally Certified Vehicle Fire Investigator. He had investigated or assisted in approximately 1,000 origin and cause investigations; he was qualified in court as an expert witness in seven court cases; he was a National Fire Instructor who taught Fire Investigation based on NFPA 921 and NFPA 1033;4 and co-authored three training manuals on fire investigation. After investigating the vehicle fire, he identified the area of origin for the fire as “‘near’ the [car’s] headlight assembly, or within the general engine compartment.”5 He further concluded that the specific cause of the fire was: a problem or failure in the energized electrical wiring, wiring connections or components associated with the engine compartment of the car.6

At his deposition, however, the expert acknowledged that he did not make a finding as to the mechanism of failure.  He could only state that the auxiliary cooling fan or its wiring connections or associated components were a possible cause. Significantly, he admitted that he could not determine the cause to a reasonable degree of scientific certainty because identifying a mechanism of failure was beyond his field of expertise.

Despite being a “cause and origin expert,” he could not form an opinion as to the “specific mechanism of failure” that caused the fire.7  Thus, although it deemed him as qualified as a fire origin and cause investigation expert, the Court would not allow him to offer an opinion as to the specific cause of the fire and he could not identify the electrical wiring as the precise cause of the fire. The plaintiffs could show only that the fire originated in the engine compartment, near the headlight assembly.

In a majority of jurisdictions, including Kansas, where Dorn was brought, “a prima facie case of defectiveness can be made by proof of the fact of a malfunction, failure, or occurrence of an accident in conjunction with other circumstantial evidence such as the lack of a reasonable secondary cause not attributable to defectiveness.”8 (See our Winter 2012 Perspectives article “Malfunction Theory” of Products Liability: Unanimous Connecticut Decision Saves Manufacturer $750,000.) Thus, a plaintiff’s failure to provide expert testimony as to a specific mechanism of failure which leads to a fire will not always result in an outcome favorable to a defendant product manufacturer.

Under the facts of Dorn, however, summary judgment in favor of the defendant manufacturer had to be granted.  The facts revealed that parties other than the manufacturer had access to the area of the car where the plaintiffs’ expert had placed the area of origin.  In fact, five years before the fire incident, two electrical sensors were replaced; and on at least six occasions, service had been performed in the engine compartment of the car, most recently, six weeks before the fire occurred.

Although plaintiffs could show that the fire originated in the vehicle’s engine compartment, near the area of the headlight assembly, there could be no liability on the part of a manufacturer as a matter of law without expert testimony as to the mechanism of failure.  The facts would not allow a reasonable inference that the cause of the fire existed when the car left the control of the car manufacturer some seven years earlier.

Thus, in Dorn, the defendant manufacturer prevailed on summary judgment because the plaintiff had failed to present an expert who could testify with a reasonable degree of certainty to the mechanism of failure. With so many other parties having had some role inside the engine compartment after the sale of the product by the manufacturer, summary judgment may have been a foregone conclusion in Dorn.  A different expert, perhaps an electrical engineer or expert with greater experience with vehicle fires, could have made a difference for the plaintiff.  On the other hand, a defense expert with an understanding of the potential failure mechanisms existing in a vehicle fire—none of which may be due to a manufacturer’s fault—may raise enough doubts in the minds of jurors to lead to an ultimate conclusion favorable to a defendant.

Choosing an expert with the appropriate experience and qualifications can be critical to the success or failure of a case.

Lesson Two: The Expert Must Define the Industry Standards

In Automobile Ins. Co. of Hartford, Connecticut v. Abel, 2010 WL 2643412, (D.Or. 2010), the plaintiff insurer brought a subrogation action to recover monies paid as a result of a condominium unit damaged by fire. The plaintiff alleged that the defendants in the neighboring unit were responsible and that the fire was caused by negligently discarded smoking materials.

The plaintiff filed a motion for partial summary judgment claiming that it was entitled to judgment as a matter of law on the issues of causation and liability.  In support of its motion, the plaintiff offered its expert report, a copy of NFPA 921, and an affidavit from an attorney stating that NFPA 921 was the industry standard for fire investigations. The Court, however, would not accept NFPA 921 into evidence.

The Court acknowledged “a plethora of federal circuit and district court cases…have concluded that NFPA 921 qualifies as a reliable scientific methodology.” The expert, in his report, had also made reference to provisions of NFPA 921 in his report. Still, the Court determined that, “the attorney…is not a forensic fire investigator and cannot authenticate [the methodology of] NFPA 921 nor establish that it is an industry standard.”9 Additionally, the investigator’s report did not suffice to authenticate it because nowhere in the report did the expert state that NFPA 921 is a “generally accepted standard among fire investigators for conducting fire investigations.”10

As this case proceeded, one would hope that the attorney ensured the expert report was amended to specifically establish that the Basic Methodology for fire investigations as set forth in Chapter 4 of NFPA 921, is the industry standard for fire investigations.  This type of omission, however, is one that can easily be avoided by ensuring that the expert report is in all respects complete.  In circumstances where amendments and expert testimony beyond what is contained in the expert report is limited, there can be dire consequences for a failure to do so, as is demonstrated here.

Lesson Three: Stay Current

Experts’ credibility may be severely undermined if they fail to stay current with the developments in fire science.  Somnis v. Country Mutual Ins. Co., 2012 WL 116815 (D.Minn. 2012), is a stark reminder of what can happen when an expert fails to do so.

In Somnis, a homeowner brought suit against his insurer, seeking to recover $200,000 in insurance proceeds for damages caused by a coverage denial following a fire at his home.11 After investigating the fire, the insurer’s expert offered his opinion that the cause was “incendiary” (relating to or involving a deliberate burning of property).12  The insurer denied the claim “based on (1) the policy’s ‘intentional loss’ exclusion and (2) the policy’s ‘concealment or fraud’ exclusion” and “asserted that [the homeowner] had made ‘misrepresentations’ regarding his claim, ‘including misrepresentations regarding the cause of the fire.’”13

The expert reached his opinion solely because he was unable to identify an accidental cause for the fire. This approach, commonly known as “negative corpus” (see our Summer 2006 Perspectives article
The Pitfalls, Perils and Reasoning Fallacies of Determining the Fire Cause in the Absence of Proof: The Negative Corpus Methodology), had been accepted as valid in certain circumstances and incorporated into NFPA 921 for many years.  Significantly, however, in 2011 the National Fire Protection Administration rejected it as being inconsistent with the Scientific Method and inappropriate for determining fire cause.14 The insurer’s expert had fifteen years of experience as an investigator and even taught various fire investigation courses. Yet, he had failed to keep abreast of the 2011 changes to NFPA 921 and relied on a theory which the scientific community of which he was a member had recently rejected.

In Somnis, it was argued that the expert’s testimony should be precluded altogether under Daubert because the insurer had not demonstrated that the reasoning and methodology underlying the expert’s opinion was scientifically valid.  Apparently, it was a close call since the Court characterized the scientific validity of the expert’s reasoning as being “not entirely free from doubt.” The Court instead precluded the expert from testifying that the cause was incendiary on the ground that it would not assist the jury.  Not all of the expert’s opinion was precluded. The jury was allowed to hear evidence that the expert had ruled out all accidental causes.  The jury could then reasonably infer that the fire was incendiary.

In most cases, an expert (or attorney) unfamiliar with current trends and developments in fire science may find that they have lost crucial credibility with jurors or the court.  They may be placed at a disadvantage in negotiation and settlement as a result.  In an extreme case, as demonstrated in this one, an expert may end up being precluded from testifying altogether.

Lesson Four: Testing is Crucial

Another recent case involved the issue of whether automobile brake fluid could penetrate a plastic box, which is referred to as an electronic control unit (“ECU”), come into contact with energized circuitry and start a fire.15  In Allstate Ins. Co. v. Ford Motor Co., No. CV-08-2276-PHX-NVW (D. Ariz. Apr. 21, 2010), the parties agreed that NFPA 921 sets forth a recognized and reliable method of determining the cause of a fire, and the Court stated that the expert’s testimony would be “reliable if he complied with either NFPA 921 or the general scientific method.”16

Under NFPA 921, the Court recognized, “the proper methodology for a fire or explosion investigation is to first determine and establish the origin(s), then investigate the cause…. [T]he scientific method…involves defining a problem, collecting data, analyzing the data, developing a hypothesis, testing the hypothesis, and selecting a final hypothesis or conclusion.”17   The Court further quoted NFPA 921 provision 4.3.6, for the proposition that: “testing of the hypothesis may be either cognitive or experimental.”18 The guide provides that hypotheses may be tested by deductive logic.19 “The deductive method is the process of reasoning from which we draw conclusions by logical inference from given premises.”20

In Allstate, however, the expert’s conclusions regarding the ECU did not withstand an examination by deductive reasoning. The expert had X-rayed the part containing the ECU and examined an exemplar obtained from a salvage yard. The expert concluded that silt and dirt particles were present on the exemplar ECU and might have penetrated it.  He then concluded that fluids could, therefore, penetrate the subject ECU. Unfortunately, the expert could not say whether the exemplar had been exposed to the elements during its time at the salvage yard and had no testing to confirm that brake fluid could penetrate the ECU.

The Court found that the expert’s deductions as to the ECU were unreliable because they were nothing more than untested hypotheses, and testing of hypotheses is an essential step in both the scientific method and the NFPA 921 protocol.21 Thus, the expert was precluded from offering his opinions that the fire originated in the ECU and that it was caused by a defect.

Lesson Five: Connect the Dots

The next case, from which we can glean our fifth lesson, is Freeman Family Ranch, Ltd. v. Maupin Truck Sales, Inc., No. CIV-07-1085-D (W.D. Okla. Mar. 9, 2010).  In Freeman, a fire started in a large industrial truck at the plaintiff’s ranch feeding operation.  The fire consumed the truck, equipment attached to it, a building, its contents and two other vehicles.22 The two defendants had each been hired earlier to install different devices having electrical wires in the truck.

The plaintiff’s expert testified that he employed a recognized method of fire investigation, according to NFPA 921, and concluded the exact source of the fire could not be determined, but that the most probable source was electrical wiring installed by one or both of the defendants.23

While the Court found the expert’s methodology under NFPA 921 sufficient to meet the requirements of Daubert, it also found his conclusion—that the wiring installed by both defendants probably had compromised insulation—required too much of an “analytical leap” with respect to causation. Because the expert provided no explanation why the wiring on both devices was implicated, the Court excluded that part of his opinion as unreliable. For his opinions to be allowed into evidence (assuming he could in that case) the expert had to carefully explain each step of his analysis.

Key Points

These five cases are instructive because they remind us to take care to avoid the numerous pitfalls that exist even after a highly qualified expert has been hired. The entire purpose of finding an expert is to have his or her opinions and reports considered for their evidentiary weight by the opposing party, judge and/or jury. To prevent this valuable evidence from being excluded at trial, attorneys must obtain testimony or reports from professionals with the proper type of expertise. (Lesson One: Select a Proper Expert).  An attorney cannot always assume that a fire origin and cause expert will suffice to establish a theory of causation and fire science experts should be mindful of situations in which another expert, such as one more familiar with the product at issue, can testify about potential failure mechanisms.  Once an appropriate expert has been retained, attorneys and experts must ensure that his or her methods are thoroughly explained. (Lesson Two: The Expert Must Define the Industry Standards). Experts must ensure they stay on top of all developments in their field. (Lesson Three: Stay Current.) Similarly, attorneys handling fire matters should be as informed as possible about the field of fire science.  An experienced fire science attorney may suspect if an expert is ill-informed and be able to spot faulty reasoning or a failure to keep up-to-date. Of course, experts must follow the scientific method, which is incorporated into NFPA 921, and base their conclusions on properly tested hypotheses. (Lesson Four: Testing is Crucial.) Finally, the expert must communicate his or her findings in a step-by-step manner that leaves the judge or jury convinced of the reliability and soundness of the opinions offered. (Lesson Five: Connect the Dots.)

Attorneys and experts alike must be cognizant of the types of pitfalls which can often lead to preclusion of testimony. Learn from others’ mistakes so as to avoid your own.   Easier said than done!

— Kathryn C. Rivet

Endnotes

1. See Progressive Sec. Ins. Co. v. Monaco Coach Corp., No. 08-1594 (W.D. La. Sept. 14, 2010).

2. Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 593-94, 113 S. Ct. 2786, 125 L. Ed. 2d 469 (1993) set out four non-exclusive factors to aid in the determination of whether an expert’s reasoning or methodology is reliable:   “(1) whether the theory or technique relied on has been tested; (2) whether the theory or technique has been subjected to peer review and publication; (3) whether there is a known or potential rate of error and the existence and maintenance of standards controlling the technique’s operation in the case of a particular scientific technique; and (4) whether the theory or method has been generally accepted by the scientific community.].” Donnelly v. Ford Motor Co., 80 F. Supp. 2d 45, 48 (E.D.N.Y. 1999).

3. Dorn v. BMW of N. Am., LLC, No. 09-1027-WEB (D. Kan. Sept. 30, 2010).

4. NFPA 1033: Standard for Professional Qualifications for Fire Investigator.

5. Id.

6. Id.

7. Id.

8. 65 A.L.R.4th 346 (Originally published in 1988).

9. Id.

10. Id.

11. Somnis v. Country Mutual Ins. Co., No. 11-324 RHK/LIB (D. Minn. Jan. 3, 2012).

12. Id.

13. Id.

14. Id. at n.2; NFPA 921 Fire and Explosion Investigations, Ch. 18, Fire Cause Determination, 18.6.5 Inappropriate Use of the Process of Elimination (National Fire Protection Association 2011).

15. Allstate Ins. Co. v. Ford Motor Co., No. CV-08-2276-PHX-NVW (D. Ariz. Apr. 21, 2010).

16. Id.

17. (Internal quotation marks omitted) Id.

18. Id.

19. NFPA 921 Fire and Explosion Investigations, Ch. 18, Fire Cause Determination, A. 4.3.6 Annex A, Test the Hypothesis (Deductive Reasoning) (National Fire Protection Association 2011).

20. Id.

21. Id.

22. Freeman Family Ranch, Ltd. v. Maupin Truck Sales, Inc., No. CIV-07-1085-D (W.D. Okla. Mar. 9, 2010).

23. (Emphasis added.) Id.