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Breaking Legal Developments


Published by:
Peter A. Lynch, Esq.
of Cozen O'Connor


EXECUTIVE SUMMARY:      This weekly newsletter covers:

  1. Massachusetts Court Permits Expert to Testify Over Daubert Type Challenge


In Commonwealth v. Patricia Goodman, No. 00-P-909 Appeals Court Of Massachusetts, April 4, 2002, Decided. The Court of Appeals of Massachusetts reviewed the defendants arson related convictions. At nine seconds after 6:00 p.m. on February 15, 1996, a fire alarm operator for the Boston Fire Department received a computer reading from the Boston Police Department requesting fire department assistance at 110 Blue Hill Avenue, the location of a retail dry cleaning business owned and operated by the defendants. The defendants arrived at the fire scene at about 7:10 p.m. Patricia Goodman told Christopher Sloan of the Boston Fire Department Investigative Unit that the business had been in family ownership for nineteen years and that she and Wendell Clark had left the store that evening at 5:57 p.m. On October 1, 1996, a Suffolk County grand jury returned indictments against each defendant for one count of burning a building, see G. L. c. 266, 2, and two counts of injury to a firefighter resulting from a criminal offense, see G. L. c. 265, 13D 1/2,because two firefighters had been seriously injured as they attempted to suppress the fire. In response to special questions, the defendants were found guilty as joint venturers on all charges. The defense argued that the Commonwealth's expert, should not have been allowed, over the defendants' objections, to give opinion testimony regarding the cause of the fire. Relying on the line of cases from Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 125 L. Ed. 2d 469, 113 S. Ct. 2786 (1993), to Canavan's Case, 432 Mass. 304, 313, 733 N.E.2d 1042 (2000), the defendants claim that the judge failed to subject Slowick's opinion to an analysis under principles stated in Commonwealth v. Lanigan, 419 Mass. 15, 25-26, 641 N.E.2d 1342 (1994); that is, he failed to perform his "gatekeeper role" of determining whether the basis for Slowick's opinion was sufficiently reliable. The judge in the case before us ruled as follows: "Based upon the credible testimony from this witness, I find that this witness is well qualified to give the types of opinions that he purports to give in this case. Also I find that he has an independent basis for his opinion aside from the clinical or laboratory tests of the materials that have been lost in this case. For this reason, I will allow him to testify and to give his opinions. Of course that is subject to cross-examination by defense counsel." The foundation for the expert's methodology, promulgated by his company in conjunction with the National Fire Protection Association, was simplicity itself: examine the exterior of the facility for external causes and, finding none, examine the interior of the building to locate the origin of the fire by following the burn patterns. Once the point of origin of the fire is located, the area surrounding that point is examined to determine the cause of the fire. Slowick testified to having done precisely that. One may complain of the absence of an adequate description of the National Fire Protection Association by expert at the voir dire and at the trial, and one may criticize the failure of the Commonwealth to produce the actual "guidelines" which the expert referred to in his testimony, but in matters which, as in this case, depend so heavily on common sense observations, not on a hypothesis for explaining phenomena as in esoteric scientific theory, the judge can properly look to his own common sense, as well as the depth and quality of the proffered expert's education, training, experience, and appearance in other courts, The court concluded that the testimony the judge heard from Slowick was adequate to justify the admission of his opinion testimony. The judgments were affirmed.

Mr. Lynch can be reached at Cozen and O'Connor, 501 West Broadway, Suite 1610, San Diego, California 92101, 800-782-3366 (voice), 619-234-7831 (fax), (e-mail), Follow us on Twitter at @firesandrain.

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