The Big Daubert Hurdles in Fire & Explosion Litigation
August, 2006
by Michael S. Errera and Allison K. Ferrini and Dean S. Rauchwerger
Over a decade has passed since the U.S. Supreme Court’s ruling in Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993), and it is time to evaluate where we’ve been, where we are, and where we are headed on the admissibility of expert opinion testimony in fire and explosion cases.
Daubert was intended to “liberalize” federal evidence practice and abolish the insistence that expert opinions represent consensus views. The so-called Daubert test has produced significant hurdles for achieving recoveries and has led to hard-fought battles in fire and explosion cases.
Daubert held that expert’s testimony must be founded upon “scientific knowledge” and established a “standard of evidentiary reliability,” mandating that the trial court judge act as gate-keeper to keep “junk-science” out of the courtroom. The Supreme Court identified four primary factors for determining the reliability of scientific evidence:
1.whether the theories and techniques employed by the scientific expert can and have been tested;
2. whether they were subjected to peer review and publication;
3. the known or expected rate of error; and
4. whether the theory or methodology employed is generally accepted in the relevant scientific community.
Although it was hoped these “clear” guidelines would reduce judicial scrutiny of expert testimony, in reality, they have had the opposite effect. For example, in the six years following Daubert, federal courts published 1,065 opinions on expert admissibility, 871 of which involve civil cases, or 36 times the number of rulings as occurred during the six-year period proceeding Daubert. In any litigation that relies heavily on expert testimony, like fire and explosion cases, you and your counsel must ensure that your retained expert witnesses are properly positioned for a Daubert challenge.
BIG DAUBERT PITFALLS
Two of the Daubert factors for determining scientific validity have received significant attention: 1) whether the theories and techniques employed by the scientific expert can and have been tested; and 2) whether the theory or methodology employed is generally accepted in the relevant scientific community.
1. HAVE THE EXPERT’S THEORIES BEEN PROPERLY TESTED AND SUPPORTED BY RELIABLE EVIDENCE?
The “key question” in determining whether an expert’s theory should be considered reliable scientific knowledge often rests on whether the theory has been tested and independently validated or replicated. Courts often exclude experts when they have not conducted proper testing to support their conclusions. Without replicable testing, the expert’s testimony may be based on mere opinion--ipse dixit type reasoning--or as one court stated, mere “educated guesses dressed up in evening clothes.” Hall v. Baxter Healthcare Corp., 947 F. Supp. 1387, 1407 (D. Or. 1996).
In Michigan Millers Mutual Ins. Corp. v. Benfield, 140 F.3d 915, 921 (11th Cir. 1998), the Eleventh Circuit upheld the trial court’s decision to exclude an expert witness who testified on fire causation. At trial, Millers’ fire causation expert was challenged as to how he came to his conclusion that the fire in the Benfield home was intentionally set. The expert testified that by eliminating all accidental causes, and given that the fire began on the dining room table, there were no other possible sources of ignition of the fire. The court concluded that his analysis was insufficient because the expert “performed no tests and took no samples” and was “unable to explain the methodology by which he eliminated the chandelier as a possible ignition source for the fire.”
A similar result was reached in Pride v. BIC Corp., 218 F.3d 566 (6th Cir. 2000), involving a man who mysteriously caught fire while inspecting a pipe behind his house. In a products liability action, the widow alleged that her deceased husband’s butane lighter first failed to extinguish, igniting his clothing, then exploded, dousing him with isobutene and fueling conflagration that ultimately caused his death. The widow offered three experts: a mechanical engineer who had testified in numerous products liability suits; a firefighter who had previously testified in BIC lighter cases on causes and origins of fires; and an analytical chemist. After a Daubert hearing, the magistrate recommended exclusion of all three experts. The Sixth Circuit affirmed the magistrate’s decision, finding that the widow’s experts had not conducted replicable laboratory tests showing that explosion of the lighter was consistent with failure to extinguish caused by lighter defect. The mechanical engineer failed to perform any tests to determine if he could duplicate a “failure to extinguish” scenario that would result in the alleged explosion. The chemist did not personally examine the lighter, and although he had designed a lab experiment to test his hypothesis, he “chickened out and shut the experiment down.”
Even expert testimony purporting to follow methods prescribed by NFPA 921 for the investigation of Fire and Explosion may not be sufficient to avoid a Daubert attack. In Fireman’s Fund Ins. Co. v. Canon, U.S.A., Inc., 394 F.3d 1054 (8th Cir. 2005), the Eighth Circuit affirmed exclusion of an expert’s testimony, even though the fire causation experts involved had subjected the copier, believed to be the source of the fire, to five detailed inspections, including visual, x-ray and electron-microscope examinations. The Eighth Circuit found that the trial court did not abuse its discretion in excluding the experts’ testimony, based on their failure to carefully examine their hypotheses against empirical data obtained from the fire scene analysis and to conduct appropriate testing. According to the court, “not only did the experimental testing fail to produce an open flame, but the experts were unable to explain the assumed heater control circuitry malfunction in theory or replicate it in any test.”
2. IS THE EXPERT’S METHODOLOGY GENERALLY ACCEPTED IN THE RELEVANT SCIENTIFIC COMMUNITY?
As fire and explosion litigation relies heavily on science, the “science” behind the expert’s opinions should be well-established and credible. Truck Insurance Exchange v. Magnetek, Inc., 360 F.3d 1206 (10th Cir. 2004), is particularly insightful. In Magnetek, the subrogated insurer sued the manufacturer of fluorescent light ballasts, claiming a ballast defect caused the fire. The insurer relied upon testimony from a fire expert, who opined that the ballast could have started a fire at temperatures well under wood’s ignition point of 400 degrees Fahrenheit, relying on a scientific process known as pyrolysis. The Tenth Circuit affirmed the lower court’s exclusion of the expert’s pyrolysis testimony, both because it found the pyrolysis theory unproven and unreliable, and also because it was not reliably applied. The court found that given pyrolysis’ questionable recognition in the scientific community, it could not be applied to the facts of the case without analytical gaps. The pyrolysis theory continues to be challenged in the courts, with both sides presenting compelling arguments. •
PREPARING YOUR EXPERT -
TOP TEN PRACTICAL STRATEGIC INSIGHTS
So what does all this mean? To enhance likely success in overcoming the Daubert hurdles, here’s a practical checklist of ten critical strategic priorities/considerations:
1) Retain the “right experts” - properly qualified and whose opinions “fit” the relevant case issues.
2) Was the opinion and/or methodology subject to peer review?
3) Is the proffered opinion/methodology generally accepted in the relevant scientific field?
4) Was testing conducted to verify the proffered theory?
5) Is there a known or knowable error rate?
6) Ability to replicate results?
7) Has all relevant evidence been considered?
8) Did the expert inspect the site and examine the artifacts?
9) Addresses applicable industry standards/practices?
10) Adequacy and credibility of relied upon evidence/data?
Bottom Line: When asked, “Where’s the Beef?” your expert must be able to show that the underlying evidentiary support and methodology for his or her proffered opinions are reliable and credible--the proof, frequently comprising: verifiable data, calculations, credible evidence and logical reasoning.
Should you have any questions on Daubert issues that you face, please contact any of the authors. If you are interested in an in-house client seminar on successfully navigating the Daubert hurdles, please contact CM partner Dean Rauchwerger (drauchwerger@clausen.com).
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