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Fire Scene Investigation:
The Daubert Challenge

Guy E. Burnette, Jr., Esquire

In 1923, the United States Circuit Court for the District of Columbia, in the case of Frye v. United States , 54 App. D.C. 46, 293 F. 1013 (1923), established a legal standard for the admission of expert testimony in federal court cases. That standard imposed a requirement that the data and methodology used by an expert in developing an opinion be of the kind "generally accepted" by other practitioners within that particular discipline. This standard of "general acceptance" was universally adopted and applied in both federal and state courts for over 70 years. It is still used today in a number of state court jurisdictions. However, a new standard of admissibility in federal court cases was established in 1993 which has since been adopted in a growing number of state courts. As this new standard has been applied to fire scene investigation, it has presented a significant challenge to the admissibility of traditional origin and cause testimony.

In 1975, Congress enacted Federal Rule of Evidence 702, which was intended to simplify and liberalize the admission of expert testimony. That rule stated:

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.

While Rule 702 in its original form was intended to broaden the general admissibility of expert testimony and certainly did so, it did not directly address the legal standard for measuring the foundation of an expert's conclusions. The Frye standard of "general acceptance" continued to be used until the Supreme Court issued its opinion in Daubert v. Merrill-Dow Pharmaceuticals, 509 U.S. 579, 113 S. Ct. 2786, 125 L.Ed.2d 469 (1993). In Daubert the Court ruled that the Frye test had been effectively abolished by Rule 702 and federal courts must now apply a new standard for the admission of expert testimony.

Daubert was a case alleging that severe birth defects in a child had been caused by a mother's use of Bendectin, a "morning sickness" drug, during her pregnancy. Merrill-Dow moved for judgment in its favor, claiming the drug had not caused any injury to the child and asserting there was no credible scientific proof Bendectin had ever caused such an injury before. In support of its motion, Merrill-Dow submitted the affidavit of a renowned physician and epidemiologist, Dr. Steven H. Lamm, who was a recognized authority in the area of health risks from exposure to chemical substances. In his affidavit, Dr. Lamm stated that he had personally reviewed 30 published reports involving more than 130,000 case studies of Bendectin patients and that none of those studies had ever found any direct evidence Bendectin caused birth defects. On that basis, he concluded that the use of Bendectin during the first trimester of pregnancy was not a risk factor for human birth defects. In response to Merrill-Dow's motion, Daubert presented affidavits from eight highly respected experts who claimed to have found a scientifically provable link between Bendectin and birth defects, on the basis of certain animal cell studies and by "recalculating" the data from earlier research.

The trial court granted Merrill-Dow's motion, finding that Daubert's experts had relied on evidence "not sufficiently established to have gained general acceptance in the field to which it belongs." The court found that since there was already a vast body of human epidemiological data on this subject, using new data derived from animal cell studies was not a reliable basis for challenging the existing research data to try to prove a causal connection between Bendectin and birth defects. The court found that these experts' "recalculations" of data from the earlier published studies were inadmissible, as those new methods had not yet been published or subjected to peer review in order to attain "general acceptance" in the field of epidemiology.

The court of appeals affirmed the trial court's decision based upon the Frye standard of general acceptance in the scientific community. That court found it to be of particular significance that the original published studies supporting the safety of Bendectin had undergone years of continuous scrutiny by the scientific community, and only the new "reanalyses" of those studies suggested a risk of birth defects caused by Bendectin. Those findings were considered "novel scientific evidence" or, as it has since become known, "junk science." Under the Frye standard, such "junk science" did not qualify as legally admissible expert testimony.

The case was appealed to the United States Supreme Court where the rulings of the lower courts were overturned and a new standard of reliability was created. The Supreme Court, in addressing the issues from Daubert relating to scientific evidence and expert testimony, first established a two-step analysis to be used by federal trial judges in acting as the "gatekeepers" of expert testimony. Those criteria were (1) that the evidence is relevant and (2) that it is reliable. In determining the issue of whether the evidence is to be considered reliable, the Court established a separate, non-exclusive four part test: (1) can the theory or technique be tested, with appropriate standards and controls for testing? (2) has it been subjected to peer review and publication? (3) is there a known or potential rate of error?, and (4) is there a level of general acceptance in that particular discipline's community? (similar to the former Frye test). Thus, the single issue Frye test was expanded to include these new factors in more broadly evaluating the quality - and resulting admissibility - of scientific evidence and expert testimony.

The debate began immediately, with a dissenting opinion in the Daubert decision written by Chief Justice Rehnquist warning of the pitfalls inevitably created when the Supreme Court offers "general observations" in its opinions. He noted that in Daubert there were 22 amicus ("friend of the court") briefs filed by interested groups and individuals, many of which dealt with issues completely unrelated to the law, such as the definition and meaning of "scientific knowledge", "the scientific method", "scientific validity", and "peer review". Justice Rehnquist also noted that:

Questions arise simply from reading this part of the Court's opinion, and countless more questions will surely arise when hundreds of district judges try to apply its teaching to particular offers of expert testimony. Does all of this dicta apply to an expert seeking to testify on the basis of "technical or other specialized knowledge" - the other types of expert knowledge to which Rule 702 applies - or are the "general observations" limited only to "scientific knowledge"? What is the difference between scientific knowledge and technical knowledge; does Rule 702 actually contemplate that the phrase "scientific, technical, or other specialized knowledge" be broken down into numerous sub-species of expertise, or did its authors simply pick general descriptive language covering the sort of expert testimony which courts have customarily received? . . ..

509 U.S. at 600.
The state courts are presently divided on whether they will follow Daubert or continue to use the Frye standard. Of the various state courts that have decided to follow Daubert, all but two (Georgia and Connecticut) have existing standards on admitting expert testimony which are similar or even identical to the original Rule 702. Yet even in those jurisdictions, a number of courts have applied Daubert to certain scientific evidence cases only. Other states, including several with evidence rules similar to Rule 702, have opted to still follow the Frye standard despite the interpretation of the issue under the Daubert decision.

The Scientific/Technical Debate
____Within the fire investigation community there has been a long-standing debate about the "science" of fire scene investigation which has been heightened by the adoption of NFPA 921. One faction has argued that determining the origin and cause of a fire should be considered a strictly scientific discipline and NFPA 921 should be applied as the standard for proper fire scene investigation using the "scientific method." This premise has been used in court challenges to require that in order to render an opinion as to the origin and cause of a fire, the witness must be able to testify that all of those theories (data and methodology) used in the investigative process were tested and subjected to the classic scientific process, as contemplated by the Daubert standard of reliability. A fire scene investigation is evaluated from the perspective of the fire scientist for challenging the origin and cause of a fire under this approach, even as NFPA 921 itself recognizes that a fire investigation is a process involving both science and art.

An opposing faction advocates the "technician" theory of origin and cause investigation. Their position asserts that while an investigator's training is certainly based upon fire science principles contained in the various texts, such as NFPA 921, Kirk's Fire Investigation, NFPA Fire Protection Handbook, etc., fire scene investigators use those principles only for establishing the foundation of a proper investigation. The ultimate expertise involved in the determination of fire origin and cause is derived from experience and investigative technique. Although the texts and reference materials must necessarily adhere to the scientific method (gathering data, developing a hypothesis, testing the hypothesis, challenging or defending the hypothesis, and rejecting or confirming the hypothesis), an investigator cannot be limited to a rigid "formula" of investigation at every fire scene. It has been observed:

Fire scene investigation has always been the subject of one's opinion. We are constantly learning more about it every day and as long as the composition and type of materials that constitute a fire load change, we will continue to learn about the different effects they have on fire and explosion behavior. There are no two fires exactly alike and each has different characteristics that require man's physical senses to evaluate the totality of the circumstances in and surrounding the fire. The investigator uses the "basics" of fire behavior, dynamics and investigative experience to begin, then beyond, must develop his thoughts and opinions based on what is visually seen, smelled, heard and touched.

Basic C & O.101, Ron McCardle, Bureau of Fire and Arson Investigations, Florida Division of State Fire Marshal.

Daubert and the cases which followed have only intensified the controversy over proper fire scene methodology and analysis.

Daubert's Application To "Non-Scientific Technical and Other Specialized Knowledge"
___A number of early post-Daubert cases addressed the threshold question of whether it was even appropriate to apply Daubert to "non-scientific" experts. In Iacobelli Construction, Inc. v. County of Monroe, 32 F. 3d 19 (2nd Cir. 1994), the Second Circuit found that Daubert did not apply to what it considered non-scientific evidence, only to cases presenting so-called "junk science". The court said:

The affidavits of Heuer and Eller do not present the kind of "junk science" problem that Daubert meant to address. See Tamarin v. Adam Caterers, Inc., 13 F.3d 51 (2d Cir. 1993) ( Daubert " specifically dealt with the admission of scientific evidence"). Rather, they rely upon the type of methodology and data typically used and accepted in construction-litigation cases. Given the inherently voluminous and highly technical nature of the data in such cases, the parties in a construction-contract dispute usually must retain experts to summarize and interpret that data.

Iacobelli at 25.

In Freeman v. Case Corp., 118 F.3d 1011 (4th Cir. 1997), a decision which considered the testimony of a mechanical engineer in a product liability case involving the design of a tractor, the Fourth Circuit found that the engineer's testimony was sufficient to support a jury finding where it was based upon "his experience and training in tractor design, in reviewing numerous published materials, including papers by the Society of Agricultural Engineers, extensive industry literature, various tractor specifications, and trade journals before reaching his conclusions." The court further stated, at footnote 6, that "In cases like this one, where an expert relies on his experience and training and not a particular methodology to reach his conclusions, application of the Daubert [analysis] is unwarranted." For that proposition, several cases from the Second, Fifth, Sixth, and Tenth Circuits were cited.

In U.S. v. Thomas, 74 F.3d 676 (6th Cir. 1996), the Sixth Circuit upheld a district court decision allowing a police officer to testify as an expert about drug trafficking. The court observed that although Daubert dealt with scientific experts, the "gatekeeper" function of federal judges applies to all types of expert testimony offered under Rule 702. The court held that to mean that the trial judge must first find that the evidence is both reliable and relevant. The court went on to apply that test to Detective Todd's testimony. However, it is clearly implicit in the case that the admission of such technical testimony was not subject to the four-prong Daubert analysis of reliability. At footnote 3, the court said:

Todd had been a police officer for almost twenty-five years and had worked for four and a half years in a special division focusing on drug cases, particularly crack cocaine cases. He had attended several schools relating to drug investigations and had been involved in executing over one thousand search warrants, most of which related to crack cocaine. Todd had also been involved in more than one thousand controlled buys of drugs and had previously testified as an expert witness in this area numerous times.

Thomas at 681.
The Seventh Circuit, in Roback v. V.I.P. Transport, Inc., 90 F.3d 1207 (7th Cir. 1996), overturned the trial court's exclusion of an expert's testimony which had been rejected on several grounds: the testimony lacked a scientific basis, the witness was not a professional engineer, he could not identify the source of the malfunction he observed, and his apparatus (a computerized device used to gather data on the performance of various systems within an automobile or truck) had not been subjected to meaningful peer review. In doing so, the court said:

Documenting the malfunction of a vehicle by gathering and compiling data during a test run is hardly a novel methodology. In a basic sense, Rosenbluth was no different than an eyewitness who may have observed Martin's truck malfunction on other occasions. Arguably, however, his testimony would have been more reliable because his observations were quantified. The only thing apparently unique to Rosenbluth's approach was the DATAQ, in the sense that he put together the hardware and designed the software, and (with the exception of a doctoral student) only he had ever used them. But Rosenbluth used standard components to assemble the DATAQ, and he certainly could have been interrogated about the way in which his software worked. His data were subject to examination and independent verification. We see no way in which Rosenbluth's testimony did not qualify for admission under Rule 702.

Roback at 1215-16.

The Joiner Case - A Clarification of Daubert
___As courts from various jurisdictions were still trying to shed light on the full meaning of Daubert, the United States Supreme Court took up the issue again and provided some guidance and insights. In General Electric Company v. Joiner, 522 U.S. 136, S.Ct. 512, 139 L. Ed 2d 508 (1997) the Supreme Court reviewed a case where the trial judge had entered summary judgment in favor of the defendant in a lawsuit alleging the plaintiff had contracted cancer as the result of exposure to PCB chemicals. The scientific evidence in support of the plaintiff's claim was derived from laboratory studies of mice which had been injected with massive doses of PCB chemicals and certain limited epidemiological studies suggesting a causal connection between PCB chemicals and cancer in humans. The trial judge ruled the evidence offered by the plaintiff failed to satisfy the requirements of Daubert, describing the evidence offered by the plaintiff's experts as "subjective belief or unsupported speculation." It was noted Joiner failed to present any credible scientific evidence of a direct causal connection between exposure to PCB chemicals and cancer.

On appeal, the ruling was reversed by the Eleventh Circuit which held the evidence should have been presented to the jury for a decision. The appellate court observed the Federal Rules of Evidence favor the admissibility of expert testimony generally. Further, the appellate court applied a more stringent standard of review of the trial court's ruling, since the ruling was "outcome determinative" (i.e., resolved the entire case).

The United States Supreme Court overturned the decision of the Eleventh Circuit and reinstated the ruling of the trial court. In doing so, the Supreme Court reiterated and clarified some of the points made in the Daubert decision. First, the role of the trial judge as "gatekeeper" was reaffirmed. The trial judge acting as the "gatekeeper" was not only allowed to draw his own conclusions about the weight of evidence offered by an expert witness, but was expected to do so. Since this was a proper role of the trial judge, the decision to accept or reject expert testimony would not be subjected to a more stringent standard of review on appeal. Instead, the decision of the trial judge would be given deference on appeal and it would require showing an "abuse of discretion" for the decision to be overturned.

The Supreme Court held the application of Daubert to expert testimony is not merely a review and approval of the methodology employed, but includes scrutiny of the ultimate conclusions reached by the expert witness based upon the methodologies and data employed to reach those conclusions.

Notably, the Supreme Court did not clarify the controversy over recognizing a legal distinction between scientific evidence and technical evidence. The Supreme Court did not need to address the issue in Joiner because it was clearly a "scientific evidence" case. That remained a major part of the controversy in construing Daubert and the admissibility of expert testimony until the Carmichael decision.

Daubert and the Fire Investigator
___The debate over the application of Daubert to fire scene investigations initially centered on the issue of whether origin and cause determination should be considered "scientific" evidence or non-scientific "technical" evidence. The advocates of the strict scientific approach reject any suggestion fire scene investigation should be considered "non-scientific", pointing to the many misconceptions previously used to investigate a fire (spalling, flashover, inverted v-patterns, etc.), which were only exposed through the work of fire scientists in recent years. They advocate the use of Daubert in fire scene analysis as the only means of preventing a return to improper fire scene methodologies employed by investigators lacking adequate scientific training. In contrast, the "technicians" argue fire scene investigation has never been a pure science like chemistry or physics, even as it employs elements of both disciplines. The term "non-scientific" in the context of Daubert is intended to create a legal distinction, rather than a scientific one. It is not to say fire investigation is "unscientific" or devoid of any application of scientific principles. Instead, it is a recognition of both the objective and subjective components which form a part of every fire scene investigation, more precisely the human component in examining, analyzing and, ultimately, interpreting fire scene evidence to reach a conclusion about the fire's origin and cause.

Early on in Daubert's history, the Tenth Circuit directly addressed the testimony of a fire investigator in an arson case. In United States v. Markum, 4 F.3d 891 (10th Cir. 1993) the court found the admission of a fire chief's testimony that a fire was the result of arson to be proper, based primarily on his extensive experience in fire suppression. There the Court said:

. . . . Experience alone can qualify a witness to give expert testimony. See Farner v. Paccar, Inc., 562 F. 2d 518, 528-29 (8th Cir. 1977); Cunningham v. Gans, 501 F.2d 496, 500 (2nd Cir. 1974). Chief Pearson worked as a firefighter and Fire Chief for 29 years. In addition to observing and extinguishing fires throughout that period, he attended arson schools and received arson investigation training. The trial court found that Chief Pearson possessed the experience and training necessary to testify as an expert on the issue of whether the second fire was a natural rekindling of the first fire or was deliberately set. That finding was not clearly erroneous.

Markum at 896.
Another case which directly addressed the application of Daubert to fire investigation was Polizzi Meats, Inc. v. Aetna Life and Casualty, 931 F. Supp. 328 (D.N.J. 1996). In that case, the Federal District Court of New Jersey said:

PMI's counsel argues that because of a lack of "scientific proof" of the fire's causation, none of Aetna's witnesses may testify at trial. This astounding contention is based on a seriously flawed reading of the United States Supreme Court's decision in Daubert v. Merrill-Dow Pharmaceuticals, Inc. Daubert addresses the standards to be applied by a trial judge when faced with a proffer of expert scientific testimony based upon a novel theory or methodology. Nothing in Daubert suggests that trial judges should exclude otherwise relevant testimony of police and fire investigators on the issues of the origins and causes of fires.

Polizzi at 336-37. (Citations omitted)
Those two decisions were among the select few reported cases to directly address Daubert in the specific context of fire investigation, until the Eleventh Circuit announced its decision in a case which resulted in an entirely different view of the process of fire scene investigation.

The Benfield Case
___In the case of Michigan Miller's Mutual Insurance Company v. Janelle R. Benfield, 140 F.3rd 915 (11th Cir. 1998), the Daubert analysis was applied to a fire scene investigation for the first time. This case attracted great attention within the fire investigation community and became a focal point of the ongoing Daubert controversy.

In January, 1996 the Benfieldcase was tried in federal district court in Tampa. The case involved a house fire and an insurance company, Michigan Miller's Mutual, which refused to pay a claim from that fire based, in part, upon an allegation the fire was incendiary and had been set by Mrs. Benfield, the insured claimant. As a part of the insurer's case, a fire investigator with over thirty years experience was qualified as an expert witness to present his opinion of the origin and cause of the fire. He testified the fire was started on top of the dining room table where some clothing, papers and ordinary combustibles had been piled together. He examined the fire scene primarily by visual observation and concluded the fire was incendiary essentially because of the absence of any evidence of an accidental cause, along with other related evidence and factors noted at the scene. After cross-examining the investigator at trial, the plaintiff moved to exclude the investigator's entire testimony under Daubert and the trial court agreed. In the trial court's ruling striking the expert's testimony, the judge specifically found that the witness:

. . . cites no scientific theory, applies no scientific method. He relies on his experience. He makes no scientific tests or analyses. He does not list the possible causes, including arson, and then using scientific methods excludes all except arson. He says no source or origin can be found on his personal visual examination and, therefore, the source and origin must be arson. There is no question but that the conclusion is one to which Daubert applies, a conclusion based on the absence of accepted scientific method. . . .
And finally, it must be noted that [his] conclusion was not based on a scientific examination of the remains, but only on his failure to be able to determine a cause and origin from his unscientific examination. This testimony is woefully inadequate under Daubert principles and pre-Daubert principles, and his testimony will be stricken and the jury instructed to disregard the same.

Daubert Motion hearing transcript at 124-26.
Interestingly, the Court in Benfield had initially found the investigator to be fully qualified to render expert opinions concerning the origin and cause of fires and had allowed him to testify based on his qualifications and credentials as a fire investigator. However, after cross-examination the judge struck the expert's previous testimony based upon his flawed methodologies in conducting the investigation in that case. Having stricken the expert's testimony, the judge then found that, as a matter of law, arson had not been proved by Michigan Miller's and directed a verdict against them on the arson issue, as well as all of its other defenses.

The evidence was undisputed that the area of origin was on top of the dining room table. Therefore, the only real issue was the cause of the fire which had occurred there. The expert testified that while he was conducting his investigation, he spoke with Ms. Benfieldwho told him that when she was last in the house before the fire there was a hurricane lamp and a half-full bottle of lamp oil on the top of the table. He further testified that he examined photographs taken by the fire department before the scene was disturbed and observed an empty, undamaged bottle of lamp oil lying on the floor with the cap removed (also undamaged), indicating that it had been opened and moved from the table prior to the setting of the fire. He also explained his observations at the fire scene which enabled him to rule out all possible accidental causes. He concluded that the fire was incendiary, using the "elimination method" long recognized as a valid method of determining fire origin and cause. He could not, however, determine the source of ignition for the fire. More importantly, he did not "scientifically document" his findings on various points and primarily relied upon his 30 years experience as a fire investigator, even as he held himself out as an expert in "fire science" adhering to the "scientific method" in conducting his investigation, as required under NFPA 921.

On cross-examination by Ms. Benfield's attorney, the expert had been asked to define the scientific method and was unable to recite the definition set forth in NFPA 921. He was asked the "scientific basis" for the taking of certain photographs apparently unrelated to the fire itself (such as a "for sale" sign in the yard) and could offer no reasonable explanation. The cross-examination continued by attacking every item of evidence referenced by the expert that could not be said to be scientifically "objective" evidence which had been scientifically "verified". The investigator's conclusions about the smoldering nature of the fire and the time he estimated it had burned before being discovered were effectively discredited as not being based upon any scientific calculations of heat release rate and principles of fire spread, but merely "guesstimates" derived from the investigator's visual observations of the smoke damage and other physical evidence, drawing upon his experience at hundreds of other fire scenes over the years. The court referred to many of those points from the cross-examination in ruling that the expert's methodology was not in conformity with the scientific method, relying instead almost exclusively on the expert's own investigative practices developed from his training and experience, which was held to be inadmissible under Daubert.

On May 4, 1998 the Eleventh Circuit issued its ruling in the Benfieldcase. Contrary to the Tenth Circuit decision in Markum and the Federal District case in Polizzi Meats, the court found the investigator's fire scene analysis would be subject to the Daubert test of reliability. In reaching this conclusion, the court noted the investigator in Benfieldheld himself out as an expert in the area of "fire science" and claimed he had complied with the "scientific method" under NFPA 921. Thus, by his own admission he was engaged in a "scientific process" which would be subject to the reliability standards of Daubert.

Applying the Daubert test of reliability, the appeals court upheld the decision of the trial judge striking the investigator's testimony. Noting it is always a matter of the trial court's "discretion" to admit or reject expert testimony in a case, such a decision must be affirmed on appeal unless it can be shown there was an "abuse of discretion" or that the decision was "manifestly erroneous." Under such a daunting standard, the trial judge is effectively given the "final word" on whether or not both the methods and findings of an expert witness will be considered reliable enough to be presented to the jury. It is not simply a matter of having the power to decide if a witness is qualified to testify as an expert, the substance of the expert's testimony and his professional conclusions will first have to meet the approval of the trial judge before they can ever be presented to the jury. The trial judge acting as "gatekeeper" can summarily reject the findings and conclusions of an expert witness, preempting the jury from making that decision. In the Benfieldcase, various scientifically unsupported and scientifically undocumented conclusions of the investigator were cited as grounds for the determination that his observations and findings failed the Daubert reliability test. A chandelier hanging over the dining room table where the fire started showed no signs of having caused the fire, but the investigator had not conducted any "tests" or detailed examinations to "scientifically" eliminate it as a potential cause of the fire. His visual observations alone were held to be an inadequate method of verification. Similarly, his opinion the fire had been accelerated with the lamp oil in the bottle was rejected under Daubert, since he could not "scientifically" prove there had ever been oil in the bottle before the fire and he had not taken any samples from the bottle or surrounding fire debris to scientifically prove lamp oil had been present at the time the fire was ignited. These and various other unsubstantiated observations of the investigator which had formed the basis of his findings were held to demonstrate there was no scientific basis for his conclusions, only his personal opinion and conjecture derived from his experience in investigating other fires.

It was not that the investigator was found to be "wrong" in the Benfieldcase. Indeed, there was never any evidence suggesting an accidental cause of the fire. Ironically, although the appeals court upheld the decision of the trial judge to strike the testimony of the insurance investigator, it granted a new trial for Michigan Millers on the arson defense. The appeals court felt a prima facie case of arson had been shown at trial through the fire department investigator who initially classified the fire only as "suspicious" (with virtually no challenge to the scientific documentation of his opinion) and the many incriminating circumstances surrounding the fire itself. Those circumstances included the fact Ms. Benfieldclaimed she had not locked the deadbolts when she left the house, yet the deadbolts were locked when she returned to discover the fire. Ms. Benfield and her daughter (who had been out of town) had the only keys to those locks. Her assertion that the fire was extinguished by her boyfriend with a garden hose was refuted by the observations of the responding firefighters. Her insurance claim appeared to be significantly inflated. She had tried to sell the house and could not do so. She was trying to convince her estranged husband to transfer the house to her, but could not do so. Ms. Benfield had given conflicting and contradictory accounts of her activities immediately before the fire. In listing all of these reasons, the appeals court found there was compelling "evidence of arson" even as it discredited the findings of the insurance company's investigator that the fire was incendiary. The critical point in the case seemed to be the distinction between the insurance company's investigator testifying as an expert in fire science and the fire department's investigator testifying as an expert in fire investigation. According to the Eleventh Circuit, that seemed to make all the difference - until the Supreme Court's decision in the Carmichael case.

The Carmichael Decision
___On March 23, 1999 the United States Supreme Court issued its ruling in the Carmichael case. This was another landmark case on the issue of expert testimony at trial and finally resolved the question of when a Daubert reliability challenge will apply.

The Supreme Court ruled that the reliability of an expert's findings must be established in all types of cases involving expert testimony, both scientific and non-scientific/technical. The court held the role of the trial judge as "gatekeeper" requires an assessment of both relevance and reliability in all such cases. The court stated its holding in the Daubert case was never intended to be limited to scientific cases only. Instead, it applies to all fields of expert testimony.

The court recognized the difficulty in applying the specific criteria outlined in Daubert to all types of expert testimony. It held the four-part test outlined in Daubert was non-exclusive and a "flexible" approach to the assessment of reliability should be taken using factors appropriate to the particular case. In certain cases, virtually none of the specific criteria outlined in the Daubert case may be applicable. In those cases, the trial judge will be given broad discretion in considering other factors which might establish reliability for the specific type of expert testimony at issue. The court went on to note that in certain cases, even apparent compliance with the criteria of Daubert would be insufficient to establish reliability. For example, "general acceptance" might be insignificant where the field itself may lack indications of reliability, such as the field of astrology.

The court observed that a particular methodology may be generally considered reliable in a certain field, but may be found unreliable by the trial judge in the specific context of the case at trial. The expert in Carmichael had over 30 years experience in the analysis of failed tires. He had worked for the Michelin tire company for over 10 years and had a degree in Mechanical Engineering. However, his methodology used in the Carmichael case - largely consisting of visual observation - was held to be unreliable where there were indications of other potential causes of the tire's failure besides defective design or construction. The expert was unable to adequately explain how he could differentiate or eliminate those other potential causes of the tire's failure using any scientifically recognized or verifiable basis. He simply stated he "knew" what a defective tire looked like from his many years of experience in examining failed tires.

The Carmichael case is significant in at least two respects. First, it expands the application of the reliability test under Daubert to all types of expert testimony. While the trial judge may need to create appropriate criteria for a particular case, some measure of reliability must be used. Second, the Carmichael case underscored the broad discretion granted to trial judges acting as the "gatekeeper" of expert testimony, by ruling the decision of the trial judge on the issue of reliability will be upheld on appeal unless it can be shown there was an abuse of discretion. Clearly, trial judges have taken on unprecedented power to effectively pre-determine the outcome of cases by exercising the broad discretion granted under the Carmichael decision.

The New Rule 702
___Even as the definitive ruling on the scope of the Daubert reliability standards was culminating in the Carmichael case, work was already underway in Congress on a revision to Rule 702 to incorporate specific reliability criteria into the federal evidence code consistent with the Supreme Court's rulings on this issue. In December of 2000 a new Rule 702 took effect which added language related to the reliability component of expert testimony. Rule 702 now states:

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.
(Italics added)

Just as the Supreme Court made clear in the Carmichael decision, this new reliability language is now a part of the "gatekeeper" function of federal judges in all cases where expert testimony is offered by a party. Rule 702 is the provision of the federal evidence code which governs the admissibility of all expert testimony and the inclusion of this new language in the rule as a condition to admitting any such testimony reflects the true impact of the Daubert decision on cases where experts must present their findings and offer their opinions.

___In the field of fire investigation, the origin and cause expert will now bear the responsibility of proving the methodologies and techniques employed were appropriate in the context of the specific case. The investigator must demonstrate reliability in both the methods of analysis and the conclusions drawn from those methods, for those conclusions to be properly admitted under the Daubert standard and Rule 702.

The investigator must be prepared to show not only why a particular method of analysis was utilized, but why that method is considered reliable enough to draw conclusions which can be presented to a jury. For a method to be proven reliable, it must be demonstrated that the method is scientifically valid. There will be increased reliance upon authoritative texts and scientific studies in the field of fire investigation to meet this challenge. The pendulum has swung from the side of the fire technicians to the side of the fire scientists under this new legal standard and fire investigators must be ready to face the challenge this brings. Only when an investigator is properly prepared to both provide expert testimony and establish its reliability, can it be successfully presented at trial to be considered by the jury.

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