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I.          Where civil trial lawyers meet fire experts:


·         First party insurance claims – arson defense


·         Property damage – fire subrogation – residential, commercial, industrial


·         Personal injury and bodily injury


·         Product liability – appliances


·         Service and installation of electrical and fueled devices


·         Construction


II.        History – Standard for admissibility of expert testimony


                        Origin and cause investigators as experts - State v. Cooney, 24 Ohio App.2d 12(8th Dist. 1970) (Fire investigator may opinion evidence as to the origin of a fire).


                        Daubert v. Merrill Dow Pharms., Inc., 509 U.S. 579 (1993)


Kumho Tire Co. v. Carmichael, 526 U.S. 137, 150, 119 S. Ct. 1167, 143 L. Ed. 2d 238 (1999)( the reliability analysis adopted in Daubert for scientific experts also applied to experts with other types of technical or specialized knowledge.)



III.       Fed. R. Evid. 702:


Rule 702. Testimony by Experts

If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise, if (1) the testimony is based upon sufficient facts or data, (2) the testimony is the product of reliable principles and methods, and (3) the witness has applied the principles and methods reliably to the facts of the case.



IV.       Ohio Evid. R. 702


Rule 702. Testimony by Experts

A witness may testify as an expert if all of the following apply:

 (A) The witness' testimony either relates to matters beyond the knowledge or experience possessed by lay persons or dispels a misconception common among lay persons;

 (B) The witness is qualified as an expert by specialized knowledge, skill, experience, training, or education regarding the subject matter of the testimony;

 (C) The witness' testimony is based on reliable scientific, technical, or other specialized information. To the extent that the testimony reports the result of a procedure, test, or experiment, the testimony is reliable only if all of the following apply:

   (1) The theory upon which the procedure, test, or experiment is based is objectively verifiable or is validly derived from widely accepted knowledge, facts, or principles;

   (2) The design of the procedure, test, or experiment reliably implements the theory;

   (3) The particular procedure, test, or experiment was conducted in a way that will yield an accurate result.




V.        Daubert Analysis


A.        Qualifications  - Can You Say "Fire?"


            The majority of courts have allowed investigators' testimony where there is some training or experience in investigating fires.  See cases compiled at 85 A.L.R.5th 87 and cases cited here.  However, qualifications and experience by themselves are insufficient.  “A supremely qualified expert cannot waltz into the courtroom and render opinions unless those opinions are based upon some recognized scientific method and are reliable and relevant under the test set forth by the Supreme Court in Daubert.  Clark v. Takata Corp., 192 F.3d 750, 759 n.5 (7th Cir. 1999).  The Ohio Supreme Court, discussing the opinions of a coroner and fire investigator, in State v. Grant, 67 Ohio St. 3d 465, 475-476 (Ohio 1993), noted:


[t]he qualification of an expert is a matter for determination by the court and rulings with respect to such matters will ordinarily not be reversed absent a clear abuse of discretion. State v. Maupin (1975), 42 Ohio St.2d 473, 479, 71 O.O.2d 485, 488, 330 N.E.2d 708, 713. Furthermore, an "expert witness is not required to be the best witness on the subject." Alexander v. Mt. Carmel Med. Ctr. (1978), 56 Ohio St.2d 155, 159, 10 O.O.3d 332, 334, 383 N.E.2d 564, 566.



B.        Reliance on NFPA 921


Many courts have held that the Guide for Fire and Explosion Investigations published by the National Fire Protection Association (NFPA 921) is an accepted reference for fire investigators. See Fireman's Fund Ins. Co. v. Canon U.S.A., Inc., 394 F.3d 1054, 1057-58 (8th Cir. 2005)(holding NFPA 921 qualifies as a reliable scientific method endorsed by a professional organization); see also Nationwide Mut. Ins. Co. v. Nat'l RV Holdings, Inc., (M.D. Pa. No. CIV A 105-CV-2509, 2007 U.S. Dist. LEXIS 22343, Mar. 28, 2007)(unpublished memorandum)(collecting cases);  Abon, Ltd. v. Transcon. Ins. Co., 2005 Ohio 3052 (Ohio Ct. App., Richland County June 16, 2005); Indiana Ins. co. v. General Electric Co., 326 F. Supp. at p.2d 844(N.D. Ohio 2004); Workman v. AB Electrolux Corp., 2005 U.S. Dist. LEXIS 16306, 31-32 (D. Kan. Aug. 8, 2005); McCoy v. Whirlpool Corp., 214 F.R.D. 646(D.C. Kan. 2003)( The "gold standard" for fire investigations is codified in NFPA 921, and its testing methodologies are well known in the fire investigation community and familiar to the courts.)



C.        Methodology - How did the investigator reach his conclusion?


            1.         NFPA 921 Methodology - The scientific method


·         Define the problem

·         Collect Data

·         Analyze the data

·         Develop an hypothesis

·         Test the hypothesis



a.         Courts have examined investigator's methods in light of NFPA 921 methodology.  See:   Indiana Insurance Co. v.  General Electric, 326 F. Supp.2d 844(W. D. OH 2004)(Judge Katz); Workman v. AB Electrolux Corp., 2005 U.S. Dist. LEXIS 16306, 31-32 (D. Kan. Aug. 8, 2005)(Methodology found sound).


b.         An Ohio Court of Appeals, examining a fire expert's testimony in Abon, Ltd. v. Transcon. Ins. Co., 2005 Ohio 3052, P62-P64 (Ohio Ct. App., Richland County June 16, 2005), stated:


"In order to determine reliability, a court must assess whether the reasoning or methodology underlying the testimony is valid. Miller v. Bike Ath. Co., 80 Ohio St. 3d 607, at 611, 687 N.E.2d 735, 1998 Ohio 178,  citing Daubert, 509 U.S. at 592-593, 113 S. Ct. 2786, 125 L.Ed.2d 469. Thus, an expert may not base an opinion upon 'subjective belief or unsupported speculation.' Daubert, 509 U.S. at 590, 113 S.Ct. 2786, 125 L.Ed.2d 469; see, also, State v. Hurst (Mar. 7, 2000), Franklin App. No. 98AP-1549, 2000 Ohio App. LEXIS 816, 2000 WL 249110. Instead, the expert's opinion must be based on methods and procedures that meet the level of intellectual rigor demanded by the relevant discipline. See In re: Paoli (C.A.3, 1994), 35 F.3d 717, 742, citing Daubert, 509 U.S. at 590, 113 S.Ct. 2786, 125 L.Ed.2d 469. The 'proposed testimony must be supported by appropriate validation--i.e., 'good grounds,' based on what is known.' Daubert, 509 U.S. at 590, 113 S.Ct. 2786, 125 L.Ed.2d 469. And 'where such testimony's factual basis, data, principles, methods, or their application are called sufficiently into question, * * * the trial judge must determine whether the testimony has a 'reliable basis in the knowledge and experience of [the relevant] discipline.' 'Kumho, 526 U.S. 137, 119 S.Ct. 1167, 143 L.Ed.2d 238, quoting  [**28]  Daubert, 509 U.S. at 592, 113 S.Ct. 2786, 125 L.Ed.2d 469; see, also, Daniel J. Capra, The Daubert Puzzle (1998) 32 Ga.L.Rev. 699, 705 ('In deciding the question of admissibility, trial judges must consider the degree to which the accuracy of scientific information has been established. The less certain the scientific community is about information, the less willing courts should be to receive it'). In other words, 'scientific evidence and expert testimony must have a traceable, analytical basis in objective fact before it may be considered on summary judgment.' Bragdon v. Abbott (1998), 524 U.S. 624, 653, 118 S.Ct. 2196, 141 L.Ed.2d 540; see, also, GE v. Joiner (1997), 522 U.S. 136, 144-146, 118 S. Ct. 512, 139 L. Ed. 2d 508. However, the grounds for the expert's opinion merely have to be good[;] they do not have to be perfect. Paoli, 35 F.3d at 744.


"A court resolving a reliability question should consider the 'principles and methods' the expert used 'in reaching his or her conclusions, rather than trying to determine whether the conclusions themselves are correct or credible. ' Nemeth, 82 Ohio St.3d at 210, 694 N.E.2d 1332; see, also, Miller, 80 Ohio St.3d 607, 1998 Ohio 178, 687 N.E.2d 735, paragraph one of the syllabus. As the Daubert court stated, in assessing reliability, 'the focus * * * must [generally] be * * * on principles and methodology, not on the conclusions that they generate.' Daubert, 509 U.S. at 595, 113 S.Ct. 2786, 125 L.Ed.2d 469.


"A trial court may not, therefore, exclude expert testimony simply because it disagrees with the expert's conclusions. Instead, if the expert followed methods and principles deemed valid by the discipline to reach his opinion, the court should allow the testimony. See Paoli, 35 F.3d at 742 ('an expert's testimony is admissible so long as the process or technique the expert used in formulating the opinion is reliable). The traditional adversary process is then capable of weeding out those shaky opinions. See Daubert, 509 U.S. at 596, 113 S.Ct. 2786, 125 L.Ed.2d 469" Valentine, supra at 628-631; 2004 Ohio 4521 at P23-31, 821 N.E.2d at 590-592.


c.         In State v. Thompson, 2008 Ohio 316; 2008 Ohio App. LEXIS 268(8th Dist. 2008), the Court noted:


In this matter, the record demonstrates that Det. Jinna's opinions were the result of a reliable process that essentially conformed to NFPA 921. He implemented the process of elimination and deductive reasoning. He recognized the need for an investigation, defined the problem by interviewing witnesses and surveying the residence. He also collected data by taking photographs and noting the extent of damage, if any, in the unit and in each appliance and outlet. From his examination, he determined that no accelerants were used, the fire did not result from the wiring or an electrical appliance, and that the fire originated from a pile of clothing in the closet.


Accordingly, we find no abuse of discretion in connection with the trial court's admission of Det. Jinna's expert testimony in this matter.


d.         Using NFPA 921 methods does not mean all experts will agree. The court in McCoy v. Whirlpool Corp., 214 F.R.D. 646(D.C. Kan. 2003) noted that:


On this record, to the extent that different investigators might utilize these methodologies and arrive at contradictory conclusions, the matter involves the credibility of witnesses and the weighing of the evidence -- both of which are well suited for resolution by the jury.


2.         Reliance on findings of others permitted


Ferrara & Dimercurio v. St. Paul Mercury, 240 F.3d 1, 9 (1st Cir. Mass. 2001):


A major problem with this argument is that Malcolm himself had visited the fire scene and examined the evidence there side by side with O'Donnell. Besides looking at burn patterns and studying the electrical system, he took measurements and photographs and wrote his own report. He also interviewed the vessel's engineer. Many photographs of evidence at the scene were entered into evidence by stipulation. Hence, it is simply not the case that Malcolm's cause-and-origin opinion rested mainly upon O'Donnell's investigations.


To be sure, Malcolm's opinion coincided with O'Donnell's and he testified that he read O'Donnell's report in preparation for his expert testimony, along with the report of the local fire department. But the opinion he rendered was his own, and, as said, he had first-hand knowledge of the fire scene and the observable facts there upon which to base that opinion. Federal Rule of Evidence 703 allows Malcolm to have taken O'Donnell's report and opinion into account when forming his own expert opinion. HN7So long as the basis of Malcolm's opinion did not extend beyond facts or data "of a type reasonably relied upon by experts in the particular field in forming opinions or inferences upon the subject, the facts or data need not be admissible in evidence." Fed. R. Evid. 703. We think a cause-and-origin expert like Malcolm could be expected to examine the report of another expert like O'Donnell as well as the fire department's report in the course of forming his own opinion derived from a variety of sources, including his own first-hand knowledge of the primary evidence at the fire scene. See Almonte v. National Union Fire Ins. Co., 787 F.2d 763, 770 (1st Cir. 1986).


But not if the investigation relied upon is also suspect.  See: e.g., Indiana Ins. co. v. General Electric Co., 326 F. Supp. at p.2d 844(N.D. Ohio 2004)( [Electrical expert's] reliance on [fire investigator's] suspect investigation, together with his failure to conduct any testing, impugned the reliability of his analysis.).



3.         Testing  - Is It Required?


a.         No.  Experience coupled with observation can be sufficient, even without testing. 


Shuck v. CNH Am., LLC, 498 F.3d 868, 874-875 (8th Cir. Neb. 2007);  Hickerson v. Dist. Pride Mobility Prods. Corp., 470 F.3d 1252, 1257-1258 (8th Cir. 2006). 


Expert testimony has been held to be consistent with NFPA 921 and satisfy Daubert without independent testing.


Donegal Mut. Ins. v. White Consol. Indus., 166 Ohio App. 3d 569, 2006 Ohio 1586, 852 N.E.2d 215, 2006 WL 827362, at *7 (Ohio App. 2d 2006); McCoy v. Whirlpool Corp., 214 F.R.D. 637, 2003 WL 1923016, at *3-4 (D. Kan. 2003);  Abon, Ltd. , v. Transcon. Ins. Co., 2005 Ohio 3052, 2005 WL 1414486 at *9;   Bitler v. A.O. Smith Corp., 400 F.3d 1227, 1236 (10th Cir. 2004); Travelers Indem. Co. v. Indus. Paper & Packaging Corp., No. 3:02-CV-491, 2006 U.S. Dist. LEXIS 43851, 2006 WL 1788967 (E.D. Tenn. 2006).


Workman v. AB Electrolux Corp., 2005 U.S. Dist. LEXIS 16306, 31-32 (D. Kan. Aug. 8, 2005):


Independent testing is not the sine qua non of admissibility under Daubert." Where an expert otherwise reliably utilizes scientific methods to reach a conclusion, lack of independent testing may "go to the weight, not the admissibility" of the testimony.



b.         Yes.  Lack of testing may be basis for exclusion.

Pro Serv. Auto., L.L.C. v. Lenan Corp., 469 F.3d 1210, 1215-1216 (8th Cir. Mo. 2006) (Expert provided no testing or mathematical analysis to quantify, even as a rough estimate, how much heat would be transferred through these processes and how it would compare to the heat necessary to ignite the combustibles.)


Pride v. Bic Corp., 218 F.3d 566, 578 (6th Cir. 2000) (affirming exclusion of expert testimony regarding the cause and origin of a fire purportedly caused by a lighter, due to a failure to conduct testing).


Fireman's Fund Ins. Co. v. Canon U.S.A., Inc., 394 F.3d 1054, 1057-58 (8th Cir. 2005)("However, NFPA 921 requires that hypotheses of fire origin must be carefully examined against empirical data obtained from fire scene analysis and appropriate testing. The district court did not abuse its discretion in concluding that Anderson and Wald did not apply this standard reliably to the facts of the case.").  But see: Shuck, supra. ("Fireman's Fund does not stand for a bright line rule that expert opinions in fire cases always must be supported by testing to be admissible. Rather, Fireman's  Fund stands for the more general propositions that testing, if performed, must be appropriate in the circumstances and must actually prove what the experts claim it proves.")


See also:  Coffey v. Dowley Mfg., Inc., 187 F. Supp. 2d 958, 977 (M.D.Tenn. 2002), aff'd, Coffey v. Dowley Mfg. Inc., 89 Fed.Appx. 927 (6th Cir. 2003); Smith v. Sears Roebuck & Co., 232 Fed. Appx. 780 (10th Cir. 2007); Kirstein v. Parks Corp., 159 F.3d 1065, 1069 (7th Cir. 1998); State Farm Fire & Cas. Co. v. Holmes Prods., 165 Fed. Appx. 182, 186 (3d Cir. 2006); Presley v. Lakewood Eng'g & Mfg. Co., 553 F.3d 638 (8th Cir. 2009);  American Family Ins. Co. v. JVC Americas Corp., 2001 U.S. Dist. LEXIS 8001 (D. Minn. April 30, 2001).



4.         Process of Elimination - Ruling out other causes


a.         Farmland Mut. Ins. Cos. v. Chief Indus., 170 P.3d 832, 836-837 (Colo. Ct. App. 2007):


The vast majority of courts that have addressed the issue have concluded that the process of elimination can be a reliable scientific method. For example, in Bitler v. A.O. Smith Corp., 400 F.3d 1227, 1236 (10th Cir. 2004), the court concluded that the process of elimination, or "differential diagnosis," "is a valid scientific technique to establish causation." Noting the method's roots in the medical context, the court observed that federal courts have regularly found differential diagnosis reliable. Id. Other courts have reached similar conclusions. See, e.g., Allstate Ins. Co. v. Hamilton Beach/Proctor Silex, Inc., 473 F.3d 450, 459 (2d Cir. 2007); Hickerson v. Pride Mobility Prods. Corp., 470 F.3d 1252, 1257 (8th Cir. 2006); Superior Aluminum Alloys, LLC. v. U.S. Fire Ins. Co., (N.D. Ind. No. 1:05-CV-207, June 25, 2007)(unpublished order); see also U.S. Aviation Underwriters, Inc. v. Pilatus Bus. Aircraft, Ltd., (D. Colo. No. 01-CV-02056-JLK, 2006 U.S. Dist. LEXIS 71266, Sept. 29, 2006)(unpublished order)(process of elimination accepted methodology to determine causation in accident investigations); Thirsk v. Ethicon, Inc., 687 P.2d 1315, 1318 (Colo. App. 1983)(in products liability case,  generally discussing use of testimony by medical expert based on process of elimination); Rivers v. State, 393 Md. 569, 903 A.2d 908, 916 (Md. 2006) (the process of elimination, if properly conducted, is a reliable scientific methodology).


*          *          *


Therefore, not only have the vast majority of courts addressing the issue accepted the process of elimination as a reliable scientific methodology, NFPA 921 relied on by both parties explicitly accepts it as well. In addition, other courts have approved use of the process of elimination in fire causation cases based upon the NFPA standards. See United States v. Santiago, 202 Fed. Appx. 399, 401 n.2 (11th Cir. 2006)(unpublished per curiam opinion)(expert's use of process of elimination  consistent with NFPA Guide); see also Allstate Ins. Co., 473 F.3d at 459 (expert testimony using process of elimination to identify ignition source based upon burn pattern constitutes circumstantial evidence of probable cause of fire).  


b.         Hickerson v. Dist. Pride Mobility Prods. Corp., 470 F.3d 1252, 1257-1258 (8th Cir. 2006):


Based on the identification of a point of origin and the elimination of other possible causes, it is permissible for Mr. Schoffstall to testify as to the point of origin and to explain that he inferred through process of elimination that the PowerChair was the  cause of the fire. 


c.         Abon, Ltd. v. Transcon. Ins. Co., 2005 Ohio App. LEXIS 2847 (Ohio Ct. App., Richland County June 16, 2005):


The courts have also found deductive reasoning and the process of elimination to be credible, scientific evidence. Royal Ins. Co. v. Joseph Daniel Const., Inc., supra 208 F. Supp. 2d At 427; Travelers Property & Cas. Corp. v. General Electric Co., supra 150 F. Supp. 2d at 366; State v. Funk, 10th Dist. No. 00AP-1352, 2001 Ohio 4110, 2001 Ohio App. LEXIS 4794, at *15; State v. Hinkle (Aug. 23, 1996), 11th Dist. No. 95-P-0069, 1996 Ohio App. LEXIS 3562.


d.         State v. Hinkle, 1996 Ohio App. LEXIS 3562, 7-9 (Ohio Ct. App., Portage County Aug. 23, 1996):


In this case, Michael Linscott, a senior fire investigator for a forensic engineering firm, and Deputy Harold Copen, arson investigator for the Portage County Sheriff's Department, both testified regarding their education, training, and experience in arson investigation. Linscott testified that in his opinion the fire likely started in the lower northeast corner of the barn, but said that he was not able to tell whether an accelerant had been used. He stated that he had taken pictures of the scene, visually inspected the fire scene, observed burn patterns, and used a process of elimination to determine that the fire was probably the result of a human act, and not the result of electrical or alternative sources of ignition. Linscott stated that he had taken a single sample, which the insurance company had elected not to use. Linscott admitted that he had not questioned any witnesses about the fire.


Deputy Copen testified that in his opinion the fire had primary and secondary points of origin in the northeast and northwest corners of the barn respectively. He stated that he videotaped the scene, observed burn patterns, and spent about one and one-half hours at the scene. He further testified that he visually examined the scene, but did not [*9]  take any samples because he had not seen any evidence of petrocarbon accelerant. He said that he determined that there were no substances present which would have caused spontaneous combustion, but he did not conclusively state that the fire had been intentionally set. Deputy Copen admitted that he had only briefly questioned Carol Hinkle.


Upon consideration of the entire record, we cannot say that the trial court abused its discretion in admitting the testimony of Linscott and Deputy Copen. It is our view that the factual foundations for their opinions were sufficiently established. Their credentials as experts were acceptable, their investigative methods were adequate, and the extent of their investigations, while not as comprehensive as could have been performed, were nevertheless reasonable. Further, any doubts or concerns regarding the regularity of their investigative techniques would go to the weight of their testimony and not the admissibility. See Bright v. E & C Lyons, 1993 Ohio App. LEXIS 4809 (Sept. 1993), No. 93-G-1753, unreported, 8.


e.         Windham v. Circuit City Stores, 420 F. Supp.2d 1206(D. Kan. 2006):


Martin's testimony shows that he did eliminate alternative causes of the fire and this has been recognized as a legitimate method of establishing causation. Bitler v. A.O. Smith Corp., 400 F.3d 1227, 1238 (10th Cir. 2004). "An inference to the best explanation for the cause of the accident must eliminate other possible sources as highly improbable, and must demonstrate that the cause identified is highly probable." Id. However, an expert need not definitively exclude every possible alternative to testify on causation. Id. n6.





5.         Speculation - Sufficient Foundation?


a.         Ficic v. State Farm Fire & Cas. Co., 2005 NY Slip Op 25153, 5; 9 Misc. 3d 793; 804 N.Y.S.2d 541 (N.Y. Sup. Ct. 2005):

Here, the defendant's expert was equivocal in determining whether the fire was accidental or set intentionally. His opinion was based on conjecture and speculation. Furthermore, the defendant's expert was not able to detect the point of origin or defect that caused the fire; he found no combustible material in the vehicle. Lastly, he could not say how the fire started or whether accelerants were used to ignite the fire. On cross-examination, the expert could not rule out that the fire was caused accidentally and he could not state that the fire was intentionally set. Based upon all the foregoing and the expert's conclusion that the fire was "suspicious," it is irrational for the jury to find by clear and convincing evidence, that is by a high degree of probability, that arson was perpetrated by the Ficics.

Weisgram v. Marley, 169 F 3d 514 (8th Cir. 1999).



6.         Expert's Deviation From 921 Not Necessarily Fatal


People v. Jackson, 2008 Mich App LEXIS 958(C.A. Mich. 5/13/08):


Hager maintained that he based his fire investigation methodology on the National Fire Protection Association 921 (NFPA 921), a nationally recognized guideline for fire investigation. Contrary to defendant's assertion, the fact that the investigative method Hager implemented is not a carbon copy of the NFPA 921 and is not peer-reviewed does not suggest that his methodology deviated from recognized fire investigation procedures in a sufficiently significant manner to render his findings unreliable. Hager's methodology appeared reasonable and was by and large in keeping with the guidelines recommended by NFPA 921. Where Hager deviated from NFPA 921, such deviation is not dispositive because NFPA 921 expressly provides that it contains only nonmandatory provisions; it merely sets guidelines and recommendations for fire investigations, not requirements. 1 Further, contrary to defendant's contention, NFPA 921 § 1.3 specifically indicates, "[d]eviations from these procedures, however, are not necessarily wrong or inferior but need to be justified." Hager's theory that the fire was intentionally set with an accelerant is based on sufficient evidence that Hager reasonably applied to recognized and reliable fire investigation principles and methods based on NFPA 921.



b.         Thompson v. St. Farm Fire & Cas. Co, 548 F. Supp.2d 588(W. D. Tenn 2008):


Although Plaintiff is correct that courts have disqualified experts based, in part, on frequent and significant deviations from NFPA 921's methodologies, see Chester Valley Coach Works, Inc. v. Fisher-Price, Inc., No. CIV. A. 99 CV 4197, 2001 U.S. Dist. LEXIS 15902, 2001 WL 1160012, at *8 (E.D. Pa. Aug. 29, 2001), Plaintiff mischaracterizes the policy and purpose behind NFPA 921. As stated above, the purpose of NFPA 921 "is to establish guidelines and recommendations . . . ." (NFPA 921, ch. 1.2 (2001 ed.), Def.'s Resp. in Opp'n, Ex. C.) "Deviations from these procedures, however, are not necessarily wrong or inferior but need to be justified." (Id.)


*          *          *


Moreover, NFPA 921 defines "guide" as "[a] document that is advisory or informative in nature and that contains only nonmandatory provisions." (Id. ch. 1.3.69.) Swain's deposition testimony that NFPA 921 is to be utilized as a guide or reference comports with NFPA 921's own explanation and definition. (Swain Dep. at 18.) Although following NFPA 921 indicates the reliability of an investigator's methods, any departure from the document's guidelines is not necessarily in and of itself grounds for automatic disqualification.



7.         Reliability - Subject to Question - Insufficient Foundation


The reliability of an expert's opinion may be subject to general attack even if he complied with NFPA 921.  For example, where a fire investigator strays beyond his field of expertise, his opinion may be excluded.  In Weisgram v. Marley, 169 F 3d 514 (8th Cir. 1999), the court examined and decided to exclude the testimony of the local fire department investigator:


The witness then was allowed to testify, over objection, that the fire started because "we had a malfunction of the heater." Id. at 63. Notwithstanding Freeman's admission that he was "not an electrical expert" and that he did not "know what happened with the heater," he nevertheless was allowed to testify that he "believed that we had a runaway of that heater." Id. at 64. Although Freeman clearly was qualified as a fire cause and origin expert, there is no question that he was not qualified to offer an opinion that the Weisgram heater malfunctioned and he should not have been permitted to do so.


*          *          *


Now, as a qualified expert in fire investigation, Freeman was free to testify-as he did-that the burn and smoke patterns and other physical evidence indicated that, in his opinion, the fire started in the entryway and radiated to the sofa. Freeman's further testimony, however, was patent speculation, as there was no evidence in the record regarding the location of the throw rug when the fire started, the type of vinyl linoleum on the floor, the glue used some fifteen years prior to secure the vinyl to the underflooring, or the flammability of the vinyl or the glue. While Freeman was qualified to testify that he thought the fire originated in the area of the baseboard heater, we think the court abused its discretion when it permitted Freeman to "run away" with his own unsubstantiated theories:...


The Court then looked at the testimony of an electrical expert who relied upon the local fire investigator's findings and opinions, and found his opinions to be equally unreliable:


Dolence never went to the Weisgram town house. As he testified at trial, he drew his conclusions largely from the observations Freeman made at the scene of the fire: "Based on the examination of the heater and the physical evidence that Captain Freeman and I had discussed and the photographs which I interpret as physical evidence, the hole in the floor in my opinion was made by a couple things." Id. at 50-51. Dolence went on to conjecture that a small rug was pushed over two-thirds of the heater, that the heat was "trapped in there and was focused down on to the . . . linoleum," that "volatile vapors from the adhesive come [sic] into the location of the heater," and that "the ignition of those vapors is what caused this fire." Id. at 51. And Dolence's basis for his theory? "There is no other explanation. Everything else is ruled out . . . by Captain Freeman." Id. at 52. Dolence did no testing to bolster this theory and admitted that he knew of no  tests that anyone had conducted to support a similar theory of fire cause and origin. See id. at 171. As with Freeman's testimony, there was insufficient foundation for Dolence's testimony; the ostensibly expert opinion testimony he offered was rank speculation.


In Ullman v. Auto-Owners Mut. Ins. Co., Case No. 2:05-cv-1000(S.D. Ohio June 26, 2007) 2007 U.S. LEXIS 46288, the Court noted that:


The United States Supreme Court and courts of appeals have made clear that a person, although qualified as an expert in one area of expertise, may be precluded from offering opinions beyond that area of expertise or that are not founded on a reliable methodology. See, e.g., Kumho Tire Co., Ltd., 526 U.S. at 154-55 (finding the proffered expert qualified as an expert in mechanical engineering, but that his methodology in analyzing a particular tire failure was not reliable); Weisgram v. Marley Co., 169 F.3d 514, 518 (8th Cir. 1999) (holding that a city fire captain, although qualified as an expert on fire investigation and therefore qualified to testify as to his opinion that a fire started in the entryway and radiated to a sofa, was not qualified to testify as to his unsubstantiated theories of a malfunction that might have caused the fire); Allison v. McGhan Med. Corp., 184 F.3d 1300, 1317-19 (11th Cir. 1999) (proposed expert testimony of pathologist not permitted upon basis of unreliable methodologies in silicon breast implant case); Cummins v. Lyle Indus., 93 F.3d 362, 371 (7th Cir. 1996) (industrial engineer not permitted to render an expert opinion regarding the adequacy of warnings, the adequacy of an instruction manual, and the feasibility of alternative designs for a trim press).



An expert's opinion may not be the expert's subjective belief or essentially unsupported speculation.  Smelser v. Norfolk S. Ry. Co., 105 F. 3d 299(6th Cir. 1997).


Deduction or impermissible conclusion?  Farris v. The Coleman Co., Inc. 121 F. Supp2d 1014(N.D. Miss. 2000) (Expert concluded that there was fire damage where the cord was located and a short in the cord, ergo the cord caused the fire.  This logic has been condemned by the Fifth Circuit.).

[1]               Mr. Andrews is Partner-In-Charge of the Columbus, Ohio office of Ulmer & Berne LLP.  He is a Certified Fire and Explosion Investigator (NAFI) and has been involved in the investigation, litigation and trial of fire and explosion cases for over 29 years.

Copyright 2005-2013 by Alexander M. Andrews.  All rights reserved.