THE DAUBERT CHALLENGE

The United States Supreme Court issued a landmark ruling in 1993 in the case of Daubert v. Merrill Dow. In that decision, the Supreme Court changed 70 years of case precedent for the admission of expert testimony. The threshold standards for the admission of expert testimony have always been relevance and reliability. Relevance remains the requirement that the evidence or testimony provide proof of an issue in dispute. The Daubert decision reaffirmed the requirement of relevance in the presentation of expert testimony. However, the Daubert decision forever changed the standard of reliability in admitting expert testimony under the Federal Rules of Evidence.

The standard applied by the courts prior to Daubert was the Frye test, based upon the 1923 Court of Appeals decision in U.S. v. Frye. The reliability standard under the Frye test was defined as “general acceptance” within the particular field or discipline involved in the testimony being offered. Both the methods of analysis and the conclusions drawn from those methods were required to be shown as “generally accepted” by others in the field.

Such a standard was by definition rigid and static, particularly with the rapid evolution of knowledge seen in the professional and scientific communities today.

The Supreme Court in the Daubert case expanded the measure of reliability. The court created a new standard based upon a broader analysis of the evidence. The Daubert decision outlined a series of inquiries to be considered, including:

1) Has the theory or technique been tested, under appropriate standards and controls?

2) Has the theory or technique been subjected to peer review?

3) Does the theory or technique have a known or potential rate of error?

4) Has the theory or technique gained “general acceptance” in the field or profession?

The decision in Daubert was criticized by several members of the court, including the Chief Justice himself, for imposing a new standard without any clear indication of just which types of expert testimony would have to be scrutinized under the new Daubert test.

As was predicted, there followed a series of conflicting decisions from trial courts and appellate courts around the country in deciding which kinds of cases invoked the Daubert analysis - and which did not. In that time, several cases involving expert testimony in fire litigation cases held that Daubert did not apply because the methodology employed was not a strictly scientific one. The subjective interpretation of fire scene evidence was considered outside the scope of the Daubert inquiry, which was viewed as a standard applicable to cases involving a strictly scientific methodology.

However, at the very time the court was announcing its decision in Daubert, the field of fire investigation was undergoing a significant evolution in its methodologies and techniques advanced by the publication of NFPA 921, a guide for the investigation of fire and explosion incidents promulgated by a specially constituted committee of the National Fire Protection Association.

The NFPA is the oldest organization of its kind, a non-profit organization responsible for virtually every building construction code and fire safety standard throughout the world. In creating NFPA 921, it was established as simply a “guideline” containing recommended practices and methodologies for the investigation of fires and explosions, which does not carry the weight of authority of a code or standard. However, its principles and theories are virtually identical to the approach taken by the Supreme Court in the Daubert decision. NFPA 921 is a peer review document based upon scientific theory which has been tested and validated to gain general acceptance in the field of fire investigation. It embodies every component of the reliability inquiry mandated by the Daubert case.

The adoption of NFPA 921 and its rapid recognition as the pre-eminent resource in the field of fire investigation represented a radical shift in the entire approach to fire investigation. It continues to generate significant controversy within the field as it imposes a new emphasis upon the scientific component of fire investigation and a diminished importance to the subjective interpretation of fire scene evidence. Under NFPA 921 the application of investigative methodology and the conclusions drawn from that methodology must follow the empirical process of the scientific method - words used in the Daubert decision itself.

The uncertainty over the application of the Daubert test being limited to only certain kinds of cases in the most strictly scientific fields was resolved in 1999 with the Supreme Court’s decision in the Kumho Tire v. Carmichael case. In that decision, the court held that a Daubert test must be applied to any type of expert testimony offered under the Federal Rules of Evidence. Thus, expert testimony in fire litigation cases will now be subject to the reliability standards set forth in the Daubert case.

This pronouncement by the Supreme Court has opened the floodgates in challenging expert testimony of fire investigators, fire engineers and fire scientists. It has changed the face of fire litigation today. Underwriters and insurers now face this challenge in every type of fire claim being litigated: in arson defense cases, in fire legal liability cases, in product liability cases and in subrogation cases. This challenge is being presented on a variety of litigation fronts.

First, the very framework of a fire investigation is under attack. Adherence to the scientific method is being demanded. The fire investigator must be a fire scientist, as well. The investigator must use an analytical process in determining the origin and cause of a fire. The scientific method under NFPA 921 must be followed in a 6 part sequence:

1) Identifying the problem

2) Collecting data from the fire scene

3) Analyzing the data with inductive reasoning

4) Developing a hypothesis of the fire’s cause

5) Testing the hypothesis with deductive reasoning

6) Establishing a proven hypothesis to confirm the fire’s cause

Strict adherence to this process must be shown to confirm the reliability of the investigative process itself. If it cannot be done, the case is lost before it ever begins.

The second line of attack goes to the performance of these steps under the scientific method. The investigator must demonstrate both awareness of the scientific method and a capability to perform an investigation under the scientific method. Is the investigator properly trained in a foundation of fire science? Can the investigator identify the appropriate evidence for analysis? Can the investigator properly apply both inductive reasoning and deductive reasoning to analyze the evidence and data? NFPA 921 is the benchmark by which the investigator will be measured.

The third line of attack is the validity of the investigator’s conclusions under the scientific method. Did the investigator gather sufficient evidence to establish or eliminate all potential causes of the fire? Can the investigator offer verifiable scientific bases for the inclusion and exclusion of potential fire causes? Is there empirical data to support the investigator’s conclusions? Can the investigator competently identify and discuss the verification of his reasoning under recognized principles of fire science?

The Daubert challenge under each of these forms may be raised at any time, but is raised most effectively before trial. A Daubert motion is now a common pre-trial tactic to limit or even exclude the testimony of the fire investigator. A successful motion is effectively the end of the case for the losing side. If a party must bear the burden of proof, as in an arson case or product liability case, the proof cannot even be presented at trial. If a party is defending the plaintiff’s proof, as in a fire legal liability case or the defense side of a subrogation or product liability case, the defense evidence can be effectively stricken before the trial commences.

A Daubert motion may be renewed or even presented for the first time at trial in cross-examination of the fire investigator. When successfully argued, the motion will lead to a directed verdict against the investigator’s party in the action. And even an unsuccessful Daubert challenge may cause the jury to be persuaded to render a verdict against the party presenting the investigator’s testimony. The damage to credibility may be irreparable.

The seriousness of a Daubert challenge cannot be overstated. It can only be avoided and overcome by recognizing the issue at the very outset of the claim. More than ever before, fire investigators must be carefully screened and selected. An incompetent investigator can single-handedly doom the case from its inception. Claims adjusters, claims management, and their counsel must be aware of the issue and must be themselves competent to select and utilize only the most capable and court-tested investigators. They must take a more active role in selecting the investigators they retain in fire claim cases. It is ultimately their responsibility to ensure the investigator can properly investigate the fire and demonstrate the requisite reliability in the investigator’s methodologies and conclusions to withstand a Daubert challenge. Finally, claims counsel must be cognizant of these issues and capable of effectively defending a Daubert challenge or mounting a successful challenge to an adverse expert. Together, the investigator, adjuster and attorney must rise to meet this challenge.