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Breaking Legal Developments


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


EXECUTIVE SUMMARY:      This weekly newsletter covers:

  1. Missouri State Court Reaffirms Daubert Not Applicable - Upholds Experts Arson Testimony


In Charles Bailey and Virgie Bailey v. Cameron Mutual Insurance Company and Brown & James, P.C., Defendants/Respondents, ED82427, Court Of Appeals Of Missouri, Eastern District, Division One, the Court of Appeals upheld defendantís arson conviction.

At approximately 2:00 a.m. on July 20, 1999, Bailey's home suffered extensive fire damage. At that time, there was in effect an insurance policy with Cameron. The policy contained the following limits to coverage: $ 110,000.00 for the dwelling, $ 11,000.00 for garages, $ 55,000.00 for personal property, and $ 11,000.00 for loss of use and for other miscellaneous coverages. Bailey notified Cameron of the fire. At about 2:00 p.m. on July 20, Cameron's claims adjuster arrived at the fire scene to investigate. In September 1999, Bailey filed a proof of loss with Cameron, claiming a total loss and seeking indemnification for the policy limits. Cameron refused to pay any portion of the claim. Cameron alleged, among other defenses, an arson defense, claiming that Bailey's son, Clinton Bailey, at the direction of his father, Charles, intentionally set the fire.

Bailey brought the action. The trial court dismissed with prejudice the conspiracy and fraud counts (Counts I and II respectively). Cameron then filed a counterclaim for declaratory judgment, seeking a declaration that Bailey was barred from recovering under the insurance policy. Among the grounds Cameron alleged as a bar to recovery under the insurance policy were Bailey's failure to cooperate with its investigation, his failure to submit to examination under oath, his failure to provide an accurate inventory of his damaged personal property, and his part in intentionally setting the fire. After a trial, the jury found in favor of Cameron on the breach of contract and vexatious refusal to pay counts (Counts III and IV respectively) and the trial court entered judgment on those counts in accordance with the verdicts. The court also found in favor of Cameron on its declaratory judgment action. Bailey filed a motion for judgment notwithstanding the verdict or, alternatively, a motion for new trial on the basis of newly discovered evidence of allegedly perjured testimony implicating Bailey in setting the fire. The court denied the motion. Bailey appeals from the dismissal of Count II for fraud, from the judgment in favor of Cameron on Count III for breach of contract and Count IV for vexatious refusal to pay, and from the judgment in favor of Cameron in its declaratory judgment action.

Bailey asserted that the trial court erred in admitting the testimony of two state certified fire investigators, Robert Jacobsen and Robert Wysong, that the fire was intentionally set. He argued that not only did the testimony not satisfy the requirements for the admissibility of expert testimony set forth in Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579, 125 L. Ed. 2d 469, 113 S. Ct. 2786 (1993), but also the court refused to grant a hearing to determine the admissibility of the testimony under Daubert.

Missouri, however, has not adopted Daubert. In Missouri, section 490.065 RSMo 2000 governs the admissibility of expert testimony. Lasky v. Union Elec. Co., 936 S.W.2d 797, 802 (Mo. banc 1997). Section 490.065 provides, "In any civil action, if scientific, technical or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact issue, a witness qualified as an expert by knowledge, skill, experience, training, or education may testify thereto in the form of an opinion . . . ." To be admissible, section 490.065.3 requires that the "facts or data in a particular case upon which an expert bases an opinion or inference . . . be of the type reasonably relied upon by experts in the field in forming opinions or inferences upon the subject and . . . be otherwise reasonably reliable." Whether expert opinion testimony satisfies the requirements of section 490.065 is a matter of trial court discretion. Fierstein, 24 S.W.3d at 226.

Under section 490.065, Cameron's expert witnesses were properly qualified to testify as experts on the subject of the origin of the fire because of their knowledge, skill, experience, training, and education. One expert, Jacobsen, was an investigator for the State of Missouri Fire Marshal's Office. In 1985, he was certified as a fire investigator by the State as well as by the National Fire Academy. He underwent additional fire investigation training every three years. Since 1986, he had investigated at least 120 fires per year. The other expert, Wysong, was certified by the State in 1991 as an investigator. In addition, from 1978 to 1985, he had been a firefighter; and from 1978 to 1985, he had been a fire investigator for the Jefferson County Sheriff's Department. Throughout his career, he had investigated more than 2,000 fires.

In addition, under section 490.065, the testimony of the expert witnesses constituted "scientific . . . knowledge [that would] assist the trier of fact" in understanding and determining whether the fire was intentionally set. Both witnesses investigated the scene of the fire and testified that the fire was intentionally set. They pointed to indications that a combustible liquid was used and to a lack of signs of furniture or clothing in the house. They also eliminated accidental causes of the fire. Such testimony was relevant and rested on a reliable foundation. The testimony did not relate to questionable scientific reasoning or methodology. Rather, under section 490.065.3, the facts or data upon which the witnesses based their opinions were "of the type reasonably relied upon by experts in the field."

Further, Missouri cases have recognized that expert testimony may be admitted to establish the cause and origin of fires. See, e.g., State v. Turnbough, 388 S.W.2d 781, 785-786 (Mo. 1965) (in arson prosecution, testimony of fire chief with 30 years' experience, involvement in about 1000 fires, and classroom training qualified to testify on origin of fire); State v. Paglino, 319 S.W.2d 613, 619-625 (Mo. 1958) (in arson prosecution, detective captain of Secret Service Division of the St. Louis Police Department in charge of bombing and arson squad permitted to testify about origin of fire). The trial court did not err in admitting the testimony of the fire investigators. Bailey's point was denied. The judgment of the trial court was 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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