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Fire Scene Investigation: The Daubert Challenge

by Guy E. Burnette, Jr., Esquire


Introduction: Case History of Admission of Expert Testimony Before Daubert

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 threshold standard for the admission of expert testimony in federal court cases. That standard imposed a requirement that the data and methodology used by the 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 subsequently used 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 court systems. As this new standard has recently been applied to fire scene investigation, it presents a significant challenge to the traditional admissibility of fire 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 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.

While Rule 702 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 it's 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 the federal courts must now apply a new standard for the admission of expert testimony.

History of the Daubert Case

Daubert was a case involving birth defects allegedly cause by the mother's use of Bendectin, an anti-nausea drug, during her pregnancy. Merrill-Dow moved for summary judgment in the case, claiming its drug had not caused the injury to the child. In support of its motion, Merrill-Dow submitted the affidavit of a physician and epidemiologist, Dr. Steven H. Lamm, who was a respected authority in the area of health risks from exposure to chemical substances. In his affidavit, Dr. Lamm stated that he had reviewed 30 published studies involving more than 130,000 patients and that none of those studies had found Bendectin to cause injuries in fetuses. 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 experts who, on the basis of various animal studies, claimed to have found a link between Bendectin and birth defects.

The trial court granted Merrill-Dow's motion, finding that Daubert's experts relied on evidence "not sufficiently established to have general acceptance in the field to which it belongs." The Court found that since there was a vast body of human epidemiological data in this area, animal cell studies were not sufficient to raise a reasonable jury issue regarding causation. The Court further found that the analysis by these experts, attacking the epidemiological analyses cited by Dr. Lamm based on "recalculations" of data in the previously published studies, were inadmissible as those findings had not been published or subjected to peer review so as 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 there existed a massive amount of original published studies supporting the safety of Bendectin, all of which had undergone scrutiny by the scientific community, while the "reanalyses" by those suggesting the risks of Bendectin were neither published nor subjected to peer review. 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 admissibility was created. The Supreme Court, in addressing the facts of Daubert relating to scientific evidence and expert testimony, first established a two-step analysis to be used by the federal district courts in acting as the "gatekeepers" of the introduction of expert testimony. Those criteria are (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, (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 evaluating the quality - and resulting admissibility - of scientific evidence and expert testimony.

The debate began immediately, with the 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 unrelated to the law, but rather to defining "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 subspecies 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 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 standards on expert testimony similar to federal Rule 702. Yet even in those jurisdictions, a number have applied Daubert to certain scientific evidence cases only. Other states, including several with evidence rules analogous to Rule 702, have opted to still follow the Frye standard.

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 origin and cause should be considered a scientific discipline and NFPA 921 should be applied as the standard for proper fire scene investigation using the "scientific method." This basic premise, however, has been used in court challenges to suggest that in order to render an opinion as to the origin and cause of a fire, the witness must be able to testify that each of those theories (data and methodology) used in the investigative process were tested and subjected to the classic scientific process, as required by the Daubert standard of reliability. The fire scene investigation has been 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 fire investigation is both science and art.

An opposing faction advocates the "technician" theory of origin and cause investigation. Their position asserts that while training is certainly based upon the various texts, such as NFPA 921, Kirk's Fire Investigation, NFPA Fire Protection Handbook, etc., fire scene investigations involve the utilization of those texts 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 are themselves properly subject to the scientific method (gathering data, developing a hypothesis, testing the hypothesis, challenging or defending the hypothesis, and rejecting or confirming the hypothesis), the investigator cannot be limited to a rigid "formula" of fire scene investigation. Rather, the ultimate test of the validity of the investigator's conclusions is in the form of cross-examination and opposing expert testimony at trial. 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 its progeny have not settled the issues involved in this debate but have only intensified the debate and controversy over proper fire scene methodologies and analysis.

Daubert's Application to "Non-Scientific Technical and Other Specialized Knowledge"

A number of courts have addressed the question of whether it is 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 "junk science".

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 case 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 2nd , 5th, 6th, and 10th Circuits were cited.

In U.S. v. Thomas, 74 F.3d 676 (6th Cir. 1996), the Sixth Circuit upheld the district court in 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 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 based 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 Southern District Court of Alabama, however, in Carmichael v. Samyang Tires, Inc., 923 F. Supp. 1514 (S.D.Ala. 1996), when asked to exclude a technical expert's testimony concerning a manufacturing or design defect in a tire, applied the four-prong reliability test and refused to find that Daubert applied only to scientific evidence. In doing so, Judge Butler said:

This argument is meritless. While the Supreme Court's ruling in Daubert was specifically directed at the admissibility of certain scientific evidence, the plaintiffs have not directed the Court's attention to a single case in which a court has refused to apply Daubert to a "technical analysis". On the contrary, the Daubert standard has been routinely utilized by lower courts in assessing the admissibility of "technical analyses" similar to that at issue in the present case. See, e.g., Strickland v. Royal Lubricant Co., 911 F. Supp. 1460 (M.D.Ala. 1995) (using Daubert test to assess admissibility of mechanical engineer testimony regarding faulty respirator); Dickerson v. Cushman, Inc., 909 F. Supp. 1467, 1472 (M.D. Ala. 1995) (mechanical engineer testimony regarding safe design of mobile tanks); Bowers v. Northern Telecom, Inc., 905 F. Supp. 1004 (N.D.Fla. 1995) (ergonomist testimony concerning computer keyboard design); Byrnes v. Honda Motor Co. Ltd., 887 F. Supp. 279, 282 (S.D.Fla. 1994) (testimony concerning proper safety equipment on motorcycle); Williamson v. General Motors Corp., 1994 WL 660649, *4 (N.D.Ga., Sept. 30, 1994) (mechanical engineer testimony concerning engine drag theory of automobile accident). Thus, the distinction urged upon the Court by plaintiffs has not been recognized by the lower courts in this Circuit.

. . .

More to the point, the technical/scientific distinction has been impliedly rejected by the Eleventh Circuit. In United States v. Lee, 25 F.3d 997 (11th Cir.1994), the Eleventh Circuit remanded with instructions for the district court to consider whether the results of "specialized, technical diagnostic machinery" comported with Daubert. Id. At 998. In particular, the Lee court held that:

"[C]ourts do not distinguish between the standards controlling admission of evidence from experts and evidence from machines . . .. Daubert applies not only to testimony about scientific concepts but also to testimony about the actual applications of those concepts." Id. at 988-99.
Carmichael at 1522.

The court went on to explain that even if the testimony is considered technical, it is based on scientific theory and "Lee requires this Court to consider the legitimacy of both the scientific foundation and the actual application of that foundation employed by [the expert]." Thus, the Carmichael decision seems to blur the distinction between scientific and technical evidence in applying a Daubert analysis. This only serves to further complicate the debate over the meaning of Daubert in admitting expert testimony.

The Joiner Case--A Clarificaton of Daubert

As courts from various jurisdictions are still trying to shed light on the full meaning of Daubert, the United States Supreme Court recently took up the issue again and provided some guidance and insights. In General Electric Company v. Joiner, 66 U.S.L.W. 4036 (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 as a general rule. 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. In particular, the trial judge 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. It was noted this had been a function of the trial judge long before the Daubert decision itself. 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. The decision of the trial judge would be given deference on appeal and it would require showing an "abuse of discretion" for the decision of the trial judge 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. It 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 scientific evidence versus technical evidence. The Supreme Court did not address the issue in Joiner because it was clearly a "scientific evidence" case. That remains a major part of the controversy in construing Daubert and the admissibility of expert testimony. The Benfield decision did directly address this issue and demonstrated a new perspective on this critical aspect of fire investigation.

Daubert and the Fire Investigator

The debate over the application of Daubert to fire scene investigations has intensified at the point of deciding whether origin and cause determination is to be considered scientific evidence or non-scientific technical evidence. The advocates of the strict scientific approach bristle at the suggestion fire scene investigation is in any way "non-scientific", pointing to the many misconceptions previously used by fire investigators (spalling, v-patterns, etc.), which were only exposed by the fire scientists in recent years. They advocate the use of Daubert in fire scene analysis as the only means of preventing a return to the improper fire scene methodologies employed by unqualified investigators lacking proper 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 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 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 investigations. 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 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)

These two decisions were the only reported cases considering Daubert in the specific context of fire investigation, until the Eleventh Circuit announced its decision in a case which has taken an entirely different view on the process of fire scene investigation.

The Benfield Case

In the recently decided case of Michigan Miller's Mutual Insurance Company v. Janelle R. Benfield, Case Number 93-1283, United States Court of Appeals for the Eleventh Circuit, the Daubert analysis was applied to a fire scene investigation. This case has attracted great attention within the fire investigation community and has become a focal point of the Daubert controversy.

In January, 1996 the Benfield case was tried in federal district court in Tampa. The case involved a house fire in which the insurance company, Michigan Miller's Mutual, refused to pay on the policy based, in part, upon the fire being incendiary and the involvement of an insured party in setting the fire. As a part of the insurer's case, a fire investigator with over thirty years experience in fire investigations was called 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 based upon the absence of any evidence of an accidental cause, along with other evidence and factors noted at the scene. After cross-examining the investigator, the plaintiff moved to exclude the 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 exclude 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 initially found the expert to be qualified to render opinions in the area of origin and cause of fires and allowed him to testify, based on his qualifications and credentials as a fire investigator. However, the judge struck the expert's testimony after it was presented based upon his methodologies in conducting the particular fire scene 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.

The evidence was undisputed that the area of origin was on top of the dining room table. Therefore, the only issue was the cause of the fire. The expert testified that while he was conducting his investigation, he spoke with Ms. Benfield who 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.

On cross-examination by Ms. Benfield's attorney, the expert was asked to define the scientific method and was asked the "scientific basis" for the taking of certain photographs apparently unrelated to the fire itself. The cross-examination continued by attacking each piece of evidence used by the expert that could not be said to be scientifically objective and scientifically verified. The investigator's determination of the smoldering nature of the fire and the time he estimated it burned before being discovered were discredited as not being based upon scientific calculations of heat release rate and fire spread, but merely the investigator's observations of the smoke damage and other physical evidence. The Court noted those points from the cross-examination in finding that the expert's methodology was not in conformity with the scientific method, relying instead almost exclusively on the expert's own training and experience, which it held to be inadmissible under Daubert.

On May 4, 1998 the Eleventh Circuit issued its ruling in the Benfield case. 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 to be subject to the Daubert test of reliability. In reaching this conclusion, the court noted the investigator in Benfield held 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 the court held to be subject to Daubert.

Under the Daubert test of reliability, the Appeals court upheld the decision of the trial judge to strike his testimony. Noting it is a matter of the trial court's discretion to admit expert testimony, such a decision will be affirmed on appeal absent a showing of 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 qualifications 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 Benfield decision, 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 examinations to scientifically eliminate it as a potential cause of the fire. His observations alone were held inadequate. Similarly, his opinion the fire had likely been accelerated with the lamp oil contained in the bottle was rejected under Daubert, since he could not scientifically prove there had been oil in the bottle before the fire and he had not taken any samples from the fire debris to scientifically prove its presence or absence at the time the fire was ignited. These and other observations of the investigator were held to demonstrate there was no scientific basis for his conclusions, only his personal opinion from experience in investigating other fires.

It was not that the investigator was found to be "wrong" in the Benfield case. Indeed, there was never any evidence of 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. Benfield claimed 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 investigator that the fire was incendiary. The critical point in the case appears to be the distinction between the insurance investigator testifying as an expert in fire science and the fire department representative testifying as an expert in fire investigation.


The Benfield decision represents a conflict between the federal appellate courts in applying the Daubert standard to fire scene analysis. The conflict may be heightened as other courts consider this issue in future cases and will only be conclusively resolved when (and if) the Supreme Court confronts the role of Daubert in the field of fire investigation. Until that happens, fire investigators may face a formidable challenge in presenting their findings in the courtroom when held to the requirements imposed by the Benfield decision.

The Daubert requirement applied in the Benfield case results from the context of the investigation when presented in court. Where an investigator testifies as a fire scientist under the scientific method of NFPA 921, in the 11th Circuit the investigator will be required to scientifically document and verify the investigative process employed and the conclusions reached as a result of the investigation. Where the testimony is presented as a fire investigator relying upon investigative training and experience, even though using a fire science foundation to conduct the investigation, the Daubert standard will likely not apply. It is a distinction which can impact the admissibility of the fire scene investigation, depending upon how it is presented at trial.

The Benfield case is significant, yet it is not a decision of the Supreme Court and it has not been followed by any other reported decisions of other courts. Whether it is an isolated decision of the 11th Circuit based upon the specific facts of that case or representative of a new direction for courts in fire investigation cases remains to be seen. It is clear, however, that investigators must be aware of the need to properly document their findings and present them in court in a logical, systematic and scientifically valid manner to avoid a Daubert challenge. Only then can an investigator be assured the results and conclusions of an investigation will be considered by a jury to establish a verdict based upon the true facts of a case.

Reprinted with permission from the author.

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