Practice Tip: Explosion and Fire Litigation

Why assemble these disciplines and make these demands? The answer lies in our shared experience of mistakes made, for example: fire scene and/or artifacts improperly handled or poorly preserved; initial information that is wrong or misleading; products and/or components improperly identified; initial investigators failing to perform impartial and objective assessments; fire marshals or other officials jumping to unsupportable conclusions; and, insufficient documentation, poor photographs, or preservation of the wrong artifacts that undermine or compromise what might otherwise be a straightforward inquiry.

The crucible of experience teaches that the best results in these cases depend on bringing to bear the most expertise at the earliest possible time.

Of course, the work-up includes gathering all the photographs, reports, accounts, and records that can be obtained, but it must be taken with a grain of salt. Speculating or assuming often results in overlooking important details or missing the big picture. The reliable investigator first absorbs all the facts ' takes in all the available information ' but avoids forming theories or hypotheses. Careful investigators will refuse to form opinions or give voice to theories until all the fact gathering is completed and due consideration is given to the evidence. Avoid investigators who try to impress by “reading” burn patterns at the scene and giving an on-the-spot assessment of a fire's origin.

It is also important to use only the best investigative methods. Assume in every case that you will eventually challenge the reliability and admissibility of opinions offered by adverse investigators. Since these challenges often draw counter-challenges, the time to think about reliable methodology is at the beginning. Nothing can be gained by challenging adverse opinions if you merely create a template with which the other side can assess your methods, and say that you fell short.

Leveraging the Elements of FRE 702

Federal Rule of Evidence 702 was rewritten in 2000 to embody the Supreme Court's decisions in Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993), Kumho Tire Co., Ltd. v. Carmichael, 526 U.S. 137, 147, 152 (1999), and their progeny. The rule's objective is “to make certain that an expert, whether basing testimony upon professional studies or personal experience, employs in the courtroom the same level of intellectual rigor that characterizes the practice of an expert in the relevant field.” Kumho, 526 U.S. at 152.

Together, FRE 702 and Daubert articulate the trial court's mandatory gate-keeping role focused on the facts, reasoning, and methodology used by a witness to ensure that opinion testimony rests upon a “reliable foundation.” Daubert, 509 U.S. at 597; General Electric v. Joiner, 522 U.S. 136, 146 (1997). See also Barabin v. AstenJohnson Inc., 2012 U.S. App. LEXIS 23528, *10 (9th Cir. 2012). Assessing the admissibility of proposed opinion testimony using the principles articulated in FRE 702 is crucial because so-called “expert” testimony has “the potential to be both powerful and quite misleading.” Westberry v. Gislaved Gummi AB, 178 F.3d 257, 261 (4th Cir. 1999) (quoting Daubert, 509 U.S. at 595).

Rule 702 prohibits a witness from merely expressing his subjective opinion. In re Rezulin Prods. Liab. Litig., 309 F. Supp 2d 531, 541 (S.D.N.Y. 2004). When determining whether expert testimony is reliable and relevant, the trial court also must scrutinize the qualifications of the proffered expert witness. Lawrence v. Raymond Corp., 2011 U.S. Dist. LEXIS 85798, at *20 (N.D. Ohio 2011). Whether an individual is qualified to testify as an expert should not focus on “the qualifications of a witness in the abstract, but whether those qualifications provide a foundation for a witness to answer a specific question.” Berry v. City of Detroit, 25 F.3d, 1342, 1351 (6th Cir. 1994).

A proposed witness's occupation and real-world experience are also subject to scrutiny. “[I]f a proposed expert is a 'quintessential expert for hire,' then it seems well within a trial judge's discretion to apply the Daubert factors with greater rigor.” Johnson v. Manitowoc Boom Trucks, Inc., 484 F.3d 426, 434 (6th Cir. 2007).

Conversely, testimony encompassing an ultimate legal conclusion is not admissible “simply because it is presented in terms of industry practice.” In re Rezulin Products. Liab. Litig., 309 F. Supp. 2d at 558.

Often Overlooked FRE 703

Trial courts assessing opinion testimony under Rule 702 may need to be reminded of the role of FRE 703 in determining the information upon which an expert may rely. “If the underlying data are so lacking in probative force and reliability that no reasonable expert could base an opinion on them, an opinion which rests entirely upon them must be excluded.” In re Paoli RR. Yard PCB Litig., 35 F.3d 717, 748 (3rd Cir. 1994).

For example, opinion testimony based on materials or summaries supplied solely by counsel ' without independent verification ' subjects that testimony to exclusion. In Re Aredia and Zometa Products Liability Litigation, 2012 U.S. App. LEXIS 11452 (6th Cir. 2012). A witness's reliance only on literature from the lawyer employing him, with no methodology of his own, is a witness ripe for exclusion. Id. at *7. Accord, Lyman v. St. Jude Med. S. C. Inc., 580 F.Supp.2d 719, 726 (E.D. Wisc. 2008) (If the data underlying the witness's opinion are “so unreliable that no reasonable expert could base an opinion on them, the opinion resting on that data must be excluded.”) (quoting In re TMI Litig., 193 F.3d 613, 697 (3rd Cir. 1999); Sommerfield v. City of Chicago, 254 F.R.D. 317 (N.D. Ill. 2008) (“It has also been held that an expert opinion based on facts prepared in anticipation of litigation may be deemed unreliable.”) (Citing Soden v. Freightliner Corp., 714 F.2d 498, 503-04 (5th Cir. 1983).'

A witness's opinion is not admissible if he or she is merely “vouching for the truth of what another expert told him.” Dura Automotive Systems of Indiana v. CTS Corp., 285 F.3d 609, 614 (7th Cir. 2002). “[A] scientist, however well-credentialed he may be, is not permitted to be the mouthpiece of a scientist in a different specialty. That would not be responsible science.” Id. Reliance on the opinions of other witnesses in other fields of expertise is inadmissible “vouching” for others. In re James Wilson Associates, 965 F.2d 160, 173 (7th Cir. 1992). “An expert is not a black box into which data is fed at one end and from which an answer emerges at the other; the Court must be able to see the mechanism in order to determine if they are reliable and helpful.” Lawrence v. Raymond Corp., 2011 U.S. Dist. LEXIS 85798, at *20 (N.D. Ohio 2011).

A witness who relies upon the “work and opinions of others” in lieu of providing his own rationale and explanation risks “a violation of the hearsay rules.” U.S. v. Geisen, 2007 U.S. Dist. LEXIS 71436 (N.D. Ohio 2007). See Mike's Train House, Inc. v. Lionel, L.L.C., 472 F.3d 398, 409 (6th Cir. 2006).

The following decisions focus on NFPA 921 methodology and challenges to the reliability and admissibility of fire cause and origin testimony.

Fireman's Fund Ins. Co., et al. v. Canon U.S.A.

In Fireman's Fund Ins. Co., et al. v. Canon U.S.A., 394 F.3d 1054 (8th Cir. 2005), the Eighth Circuit pronounced NFPA 921 “a reliable method endorsed by a professional organization.” A manufacturer of copy machines was blamed for causing a fire in a strip mall in St. Paul, MN, that destroyed a video store and damaged three other businesses. Two investigators hired by the mall's insurance carrier, both of whom purportedly followed NFPA 921 methodology, concluded that a Canon copy machine's “upper fixing heat assembly” caused the fire. Among other evidence, the investigators offered “experimental tests” of an exemplar heat assembly that yielded a “brown scorch line” on a sheet of paper. The district court ruled, and the appellate court agreed, that “this experimental testing did not meet the standard of NFPA 921″ because the scorched paper proved nothing.

Not only did scorching fall short of creating a flame, the investigators achieved scorching only after they bypassed the heat assembly's control circuitry ' and effectively neutralized the system's thermal fuse ' without explaining how or when these components supposedly malfunction. To make matters worse, the investigators responded to a critique of their methods by offering a “last minute alternative theory” implicating the copier's “composite power supply board” ' again without identifying a defect in the power supply that might have caused the fire.

Presley, et al. v. Lakewood Engineering and Manufacturing Co.

In a combined personal injury and property damage claim in Presley, et al. v. Lakewood Engineering and Manufacturing Co., 553 F.3d 638 (8th Cir. 2009), a space heater was blamed for a residential fire in Fayetteville, AR. Local fire department inspectors gathered evidence in an attempt to identify the fire's origin and cause, and succeeded in localizing the origin, but reported the cause as “undetermined at this time.” Enter a new investigator, an electrical engineer hired by the plaintiffs, who “generally relied upon NFPA 921″ to guide his inquiry. Relying on both metallurgical and flammability testing of artifacts collected by the fire department, the new investigator “hypothesized a manufacturing defect in the Lakewood heater” caused the fire.

He also asserted, however, that “it would be impossible to recreate the fire scene and his ignition scenario.” Notably, the engineer cited “six NFPA 921 sections which set forth scientific principles consistent with portions of his theory.” The district court ruled that the investigator “failed to reliably apply the standards of NFPA 921″ and excluded his opinions. The appellate court affirmed, relying in part on this underutilized third prong of FRE 702.

Indemnity Ins. Co. of North America v. Electrolux Home Prod. Inc.

In this case, a school district's insurer filed a subrogation action seeking reimbursement of $770,000 in property damage on a theory that “electric arcing” in a small refrigerator caused a school fire. Indemnity Ins. Co. of North America v. Electrolux Home Prod. Inc., 2011 U.S. Dist. LEXIS 140911 (E. D. Pa., Dec. 7, 2011), aff'd. 3rd Cir., No. 12-1454, April 2, 2013.

A fire marshal's initial report found “no obvious cause,” and the insurer and the appliance manufacturer both engaged well-known consulting firms to perform cause and origin investigations. The insurance company's investigators ' with a several months' head start ' concluded that “the fire originated inside a compact Frigidaire refrigerator” due to “an electrical short circuiting event on the copper conductor that connected the temperature control device to the compressor relay.” When the defendant's consultants got their chance to view the remaining evidence, they criticized the insurance investigators for failing to preserve all the relevant artifacts ' especially evidence that might reveal a different cause.

The court agreed that crucial evidence was not preserved: “Given the fact that Plaintiff's experts were familiar with NFPA guidelines, one wonders why [they] did not fully comply with them. NFPA 921 instructs investigators that '[v]aluable physical evidence should be recognized, properly collected, and preserved for further testing and evaluation or courtroom presentation.'”

Fairfield Development, Inc. v. J.D.I. Contractor & Supply, Inc.

In Fairfield Development, Inc. v. J.D.I. Contractor & Supply, Inc., 2010 U.S. Dist. LEXIS 87646 (D. Colo., July 30, 2010), where a construction site fire was blamed on a portable propane heater, a subrogation carrier faced a motion for sanctions for spoliation of evidence. The court's touchstones were the definition of spoliation in NFPA 921 and ASTM E 860-07. The insurance carrier issued an internal report noting the “good possibility of subrogation,” and the court used this as evidence that plaintiff had a duty to preserve the scene and did not. Oddly, though, the court did not impose sanctions because the moving party “has not established prejudice.” The court held: “J.D.I. has not established a reasonable probability, based on concrete evidence as opposed to a 'fertile imagination,' that inspection of the site would have produced favorable evidence.”

Dorn v. BMW of North America LLC

A seven year-old BMW 528i was blamed for starting a garage fire in Dorn v. BMW of North America LLC, 2010 U.S. Dist. LEXIS 103725 (D. Kansas, Sept. 30, 2010).

Plaintiffs' cause and origin investigator determined “the area of fire origin was near the headlamp assembly” and asserted that “the act or omission that brought the ignition source and the materials first ignited together was a problem or failure in the energized electrical wiring, wiring connections or components associated with the engine compartment of the 2000 BMW.” The investigator testified that identifying a specific mechanism of the supposed electrical failure was “above my field of expertise.” The court limited the investigator to opinions on the origin of the fire ' as distinguished from cause ' and went on to grant BMW summary judgment.

Werth v. Hill-Rom, Inc.

In Werth v. Hill-Rom, Inc., 56 F. Supp.2d 1051 (D. Minn. 2012), a newborn receiving oxygen therapy under a Stabilet baby warmer suffered severe burns when a fire erupted in the bassinet. The hospital hired at least five respected consultants, including ECRI and a nationally recognized forensic engineering firm. The hospital's team conducted a lengthy and expensive investigation, composed a 296-page report, and concluded that “a hot particle had broken from the baby warmer” and ignited the baby's blanket and linens. Adding to the level of suspicion, earlier models of the Stabilet baby warmer were recalled in the 1990s because “hot particles were noted to have fallen from the heating element into the bassinet below.”

The baby warmer in question, however, was a post-recall design equipped with protective covers. Hill-Rom moved to exclude “as unreliable” the “untested and speculative hypothesis that a hot particle from the infant radiant warmer was the root cause of the fire at issue.” In response to the challenge, plaintiffs' investigators belatedly claimed adherence to NFPA 921 in that they “conjured several fire-cause hypotheses, testing them one by one until only one [cause] remained,” but NFPA 921 was not mentioned anywhere in the massive post-fire report.

Remarkably, the court held that “the experts' failure to disclose their reliance on NFPA 921 ' would alone justify excluding their opinion.” But the court drilled deeper and concluded, after thorough analysis, that “the Report gives no indication that the experts performed physical tests to show that it was likely, or even reasonable to conclude a large chip could break from the [warmer's] quartz tube and fall into the bassinet.” Relying heavily on multiple provisions in NFPA 921, the court rejected the investigators' contention that “thought experiments” or “cognitive testing” ' which might be sufficient in certain circumstances ' could be relied upon in this situation.'

John L. Tate, a member of this newsletter's Board of Editors, is a member of Stites & Harbison PLLC and a Fellow of the American College of Trial Lawyers.

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The singular approach to fire and explosion litigation described in this article is not for everyone. Advisory articles by experienced fire investigators and trial lawyers will offer different advice and approaches.

How can perfectly legitimate approaches be so varied? One reason is that the spectrum of challenges inherent in fire and explosion litigation can and should stimulate creative responses. One size does not fit all. The optimal response, however ' whether at the still-smoking scene or at post-fire artifact examinations ' is predicated on employing experts from at least three disciplines: 1) An expert on the product; 2) An expert in fire origin and cause; and 3) Expert counsel. Instead of trying to select team members based on sketchy information, the governing principle should be to start with a minimum of three people in these key disciplines.

With the first notice of an event, a standard practice is to respond immediately with a request for preservation of evidence and data. It is useful to put in writing to the notifying party the expectation that ASTM E 1188 (collection and preservation of evidence), ASTM E 678 (evaluation of technical data), ASTM E 860 (examining and testing evidence) will be followed by those in control. Of course, National Fire Protection Association (NFPA) 921 protocols also will apply to all aspects of the investigation.' Depending upon the scope and complexity of the event reported, it might be wise to emphasize adherence to NFPA 921's Chapter 27, “Management of Complex Investigations.” Follow-up communication might even carry a reminder that all fire investigators should be qualified under NFPA 1033.

Why assemble these disciplines and make these demands? The answer lies in our shared experience of mistakes made, for example: fire scene and/or artifacts improperly handled or poorly preserved; initial information that is wrong or misleading; products and/or components improperly identified; initial investigators failing to perform impartial and objective assessments; fire marshals or other officials jumping to unsupportable conclusions; and, insufficient documentation, poor photographs, or preservation of the wrong artifacts that undermine or compromise what might otherwise be a straightforward inquiry.

The crucible of experience teaches that the best results in these cases depend on bringing to bear the most expertise at the earliest possible time.

Of course, the work-up includes gathering all the photographs, reports, accounts, and records that can be obtained, but it must be taken with a grain of salt. Speculating or assuming often results in overlooking important details or missing the big picture. The reliable investigator first absorbs all the facts ' takes in all the available information ' but avoids forming theories or hypotheses. Careful investigators will refuse to form opinions or give voice to theories until all the fact gathering is completed and due consideration is given to the evidence. Avoid investigators who try to impress by “reading” burn patterns at the scene and giving an on-the-spot assessment of a fire's origin.

It is also important to use only the best investigative methods. Assume in every case that you will eventually challenge the reliability and admissibility of opinions offered by adverse investigators. Since these challenges often draw counter-challenges, the time to think about reliable methodology is at the beginning. Nothing can be gained by challenging adverse opinions if you merely create a template with which the other side can assess your methods, and say that you fell short.

Leveraging the Elements of FRE 702

Federal Rule of Evidence 702 was rewritten in 2000 to embody the Supreme Court's decisions in Daubert v. Merrell Dow Pharmaceuticals, Inc. , 509 U.S. 579 (1993), Kumho Tire Co., Ltd. v. Carmichael , 526 U.S. 137, 147, 152 (1999), and their progeny. The rule's objective is “to make certain that an expert, whether basing testimony upon professional studies or personal experience, employs in the courtroom the same level of intellectual rigor that characterizes the practice of an expert in the relevant field.” Kumho, 526 U.S. at 152.

Together, FRE 702 and Daubert articulate the trial court's mandatory gate-keeping role focused on the facts, reasoning, and methodology used by a witness to ensure that opinion testimony rests upon a “reliable foundation.” Daubert, 509 U.S. at 597; General Electric v. Joiner , 522 U.S. 136, 146 (1997). See also Barabin v. AstenJohnson Inc., 2012 U.S. App. LEXIS 23528, *10 (9th Cir. 2012). Assessing the admissibility of proposed opinion testimony using the principles articulated in FRE 702 is crucial because so-called “expert” testimony has “the potential to be both powerful and quite misleading.” Westberry v. Gislaved Gummi AB , 178 F.3d 257, 261 (4th Cir. 1999) (quoting Daubert , 509 U.S. at 595).

Rule 702 prohibits a witness from merely expressing his subjective opinion. In re Rezulin Prods. Liab. Litig., 309 F. Supp 2d 531, 541 (S.D.N.Y. 2004). When determining whether expert testimony is reliable and relevant, the trial court also must scrutinize the qualifications of the proffered expert witness. Lawrence v. Raymond Corp., 2011 U.S. Dist. LEXIS 85798, at *20 (N.D. Ohio 2011). Whether an individual is qualified to testify as an expert should not focus on “the qualifications of a witness in the abstract, but whether those qualifications provide a foundation for a witness to answer a specific question.” Berry v. City of Detroit, 25 F.3d, 1342, 1351 (6th Cir. 1994).

A proposed witness's occupation and real-world experience are also subject to scrutiny. “[I]f a proposed expert is a 'quintessential expert for hire,' then it seems well within a trial judge's discretion to apply the Daubert factors with greater rigor.” Johnson v. Manitowoc Boom Trucks, Inc. , 484 F.3d 426, 434 (6th Cir. 2007).

Conversely, testimony encompassing an ultimate legal conclusion is not admissible “simply because it is presented in terms of industry practice.” In re Rezulin Products. Liab. Litig., 309 F. Supp. 2d at 558.

Often Overlooked FRE 703

Trial courts assessing opinion testimony under Rule 702 may need to be reminded of the role of FRE 703 in determining the information upon which an expert may rely. “If the underlying data are so lacking in probative force and reliability that no reasonable expert could base an opinion on them, an opinion which rests entirely upon them must be excluded.” In re Paoli RR. Yard PCB Litig., 35 F.3d 717, 748 (3rd Cir. 1994).

For example, opinion testimony based on materials or summaries supplied solely by counsel ' without independent verification ' subjects that testimony to exclusion. In Re Aredia and Zometa Products Liability Litigation, 2012 U.S. App. LEXIS 11452 (6th Cir. 2012). A witness's reliance only on literature from the lawyer employing him, with no methodology of his own, is a witness ripe for exclusion. Id. at *7. Accord , Lyman v. St. Jude Med. S. C. Inc. , 580 F.Supp.2d 719, 726 (E.D. Wisc. 2008) (If the data underlying the witness's opinion are “so unreliable that no reasonable expert could base an opinion on them, the opinion resting on that data must be excluded.”) (quoting In re TMI Litig., 193 F.3d 613, 697 (3rd Cir. 1999); Sommerfield v. City of Chicago , 254 F.R.D. 317 (N.D. Ill. 2008) (“It has also been held that an expert opinion based on facts prepared in anticipation of litigation may be deemed unreliable.”) (Citing Soden v. Freightliner Corp. , 714 F.2d 498, 503-04 (5th Cir. 1983).'

A witness's opinion is not admissible if he or she is merely “vouching for the truth of what another expert told him.” Dura Automotive Systems of Indiana v. CTS Corp. , 285 F.3d 609, 614 (7th Cir. 2002). “[A] scientist, however well-credentialed he may be, is not permitted to be the mouthpiece of a scientist in a different specialty. That would not be responsible science.” Id. Reliance on the opinions of other witnesses in other fields of expertise is inadmissible “vouching” for others. In re James Wilson Associates, 965 F.2d 160, 173 (7th Cir. 1992). “An expert is not a black box into which data is fed at one end and from which an answer emerges at the other; the Court must be able to see the mechanism in order to determine if they are reliable and helpful.” Lawrence v. Raymond Corp., 2011 U.S. Dist. LEXIS 85798, at *20 (N.D. Ohio 2011).

A witness who relies upon the “work and opinions of others” in lieu of providing his own rationale and explanation risks “a violation of the hearsay rules.” U.S. v. Geisen, 2007 U.S. Dist. LEXIS 71436 (N.D. Ohio 2007). See Mike's Train House, Inc. v. Lionel, L.L.C. , 472 F.3d 398, 409 (6th Cir. 2006).

The following decisions focus on NFPA 921 methodology and challenges to the reliability and admissibility of fire cause and origin testimony.

Fireman's Fund Ins. Co., et al. v. Canon U.S.A.

In Fireman's Fund Ins. Co., et al. v. Canon U.S.A., 394 F.3d 1054 (8th Cir. 2005), the Eighth Circuit pronounced NFPA 921 “a reliable method endorsed by a professional organization.” A manufacturer of copy machines was blamed for causing a fire in a strip mall in St. Paul, MN, that destroyed a video store and damaged three other businesses. Two investigators hired by the mall's insurance carrier, both of whom purportedly followed NFPA 921 methodology, concluded that a Canon copy machine's “upper fixing heat assembly” caused the fire. Among other evidence, the investigators offered “experimental tests” of an exemplar heat assembly that yielded a “brown scorch line” on a sheet of paper. The district court ruled, and the appellate court agreed, that “this experimental testing did not meet the standard of NFPA 921″ because the scorched paper proved nothing.

Not only did scorching fall short of creating a flame, the investigators achieved scorching only after they bypassed the heat assembly's control circuitry ' and effectively neutralized the system's thermal fuse ' without explaining how or when these components supposedly malfunction. To make matters worse, the investigators responded to a critique of their methods by offering a “last minute alternative theory” implicating the copier's “composite power supply board” ' again without identifying a defect in the power supply that might have caused the fire.

Presley, et al. v. Lakewood Engineering and Manufacturing Co.

In a combined personal injury and property damage claim in Presley, et al. v. Lakewood Engineering and Manufacturing Co., 553 F.3d 638 (8th Cir. 2009), a space heater was blamed for a residential fire in Fayetteville, AR. Local fire department inspectors gathered evidence in an attempt to identify the fire's origin and cause, and succeeded in localizing the origin, but reported the cause as “undetermined at this time.” Enter a new investigator, an electrical engineer hired by the plaintiffs, who “generally relied upon NFPA 921″ to guide his inquiry. Relying on both metallurgical and flammability testing of artifacts collected by the fire department, the new investigator “hypothesized a manufacturing defect in the Lakewood heater” caused the fire.

He also asserted, however, that “it would be impossible to recreate the fire scene and his ignition scenario.” Notably, the engineer cited “six NFPA 921 sections which set forth scientific principles consistent with portions of his theory.” The district court ruled that the investigator “failed to reliably apply the standards of NFPA 921″ and excluded his opinions. The appellate court affirmed, relying in part on this underutilized third prong of FRE 702.

Indemnity Ins. Co. of North America v. Electrolux Home Prod. Inc.

In this case, a school district's insurer filed a subrogation action seeking reimbursement of $770,000 in property damage on a theory that “electric arcing” in a small refrigerator caused a school fire. Indemnity Ins. Co. of North America v. Electrolux Home Prod. Inc., 2011 U.S. Dist. LEXIS 140911 (E. D. Pa., Dec. 7, 2011), aff'd. 3rd Cir., No. 12-1454, April 2, 2013.

A fire marshal's initial report found “no obvious cause,” and the insurer and the appliance manufacturer both engaged well-known consulting firms to perform cause and origin investigations. The insurance company's investigators ' with a several months' head start ' concluded that “the fire originated inside a compact Frigidaire refrigerator” due to “an electrical short circuiting event on the copper conductor that connected the temperature control device to the compressor relay.” When the defendant's consultants got their chance to view the remaining evidence, they criticized the insurance investigators for failing to preserve all the relevant artifacts ' especially evidence that might reveal a different cause.

The court agreed that crucial evidence was not preserved: “Given the fact that Plaintiff's experts were familiar with NFPA guidelines, one wonders why [they] did not fully comply with them. NFPA 921 instructs investigators that '[v]aluable physical evidence should be recognized, properly collected, and preserved for further testing and evaluation or courtroom presentation.'”

Fairfield Development, Inc. v. J.D.I. Contractor & Supply, Inc.

In Fairfield Development, Inc. v. J.D.I. Contractor & Supply, Inc., 2010 U.S. Dist. LEXIS 87646 (D. Colo., July 30, 2010), where a construction site fire was blamed on a portable propane heater, a subrogation carrier faced a motion for sanctions for spoliation of evidence. The court's touchstones were the definition of spoliation in NFPA 921 and ASTM E 860-07. The insurance carrier issued an internal report noting the “good possibility of subrogation,” and the court used this as evidence that plaintiff had a duty to preserve the scene and did not. Oddly, though, the court did not impose sanctions because the moving party “has not established prejudice.” The court held: “J.D.I. has not established a reasonable probability, based on concrete evidence as opposed to a 'fertile imagination,' that inspection of the site would have produced favorable evidence.”

Dorn v. BMW of North America LLC

A seven year-old BMW 528i was blamed for starting a garage fire in Dorn v. BMW of North America LLC, 2010 U.S. Dist. LEXIS 103725 (D. Kansas, Sept. 30, 2010).

Plaintiffs' cause and origin investigator determined “the area of fire origin was near the headlamp assembly” and asserted that “the act or omission that brought the ignition source and the materials first ignited together was a problem or failure in the energized electrical wiring, wiring connections or components associated with the engine compartment of the 2000 BMW.” The investigator testified that identifying a specific mechanism of the supposed electrical failure was “above my field of expertise.” The court limited the investigator to opinions on the origin of the fire ' as distinguished from cause ' and went on to grant BMW summary judgment.

Werth v. Hill-Rom, Inc.

In Werth v. Hill-Rom, Inc. , 56 F. Supp.2d 1051 (D. Minn. 2012), a newborn receiving oxygen therapy under a Stabilet baby warmer suffered severe burns when a fire erupted in the bassinet. The hospital hired at least five respected consultants, including ECRI and a nationally recognized forensic engineering firm. The hospital's team conducted a lengthy and expensive investigation, composed a 296-page report, and concluded that “a hot particle had broken from the baby warmer” and ignited the baby's blanket and linens. Adding to the level of suspicion, earlier models of the Stabilet baby warmer were recalled in the 1990s because “hot particles were noted to have fallen from the heating element into the bassinet below.”

The baby warmer in question, however, was a post-recall design equipped with protective covers. Hill-Rom moved to exclude “as unreliable” the “untested and speculative hypothesis that a hot particle from the infant radiant warmer was the root cause of the fire at issue.” In response to the challenge, plaintiffs' investigators belatedly claimed adherence to NFPA 921 in that they “conjured several fire-cause hypotheses, testing them one by one until only one [cause] remained,” but NFPA 921 was not mentioned anywhere in the massive post-fire report.

Remarkably, the court held that “the experts' failure to disclose their reliance on NFPA 921 ' would alone justify excluding their opinion.” But the court drilled deeper and concluded, after thorough analysis, that “the Report gives no indication that the experts performed physical tests to show that it was likely, or even reasonable to conclude a large chip could break from the [warmer's] quartz tube and fall into the bassinet.” Relying heavily on multiple provisions in NFPA 921, the court rejected the investigators' contention that “thought experiments” or “cognitive testing” ' which might be sufficient in certain circumstances ' could be relied upon in this situation.'

John L. Tate, a member of this newsletter's Board of Editors, is a member of Stites & Harbison PLLC and a Fellow of the American College of Trial Lawyers.

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