|
 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.
Conclusion
___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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