Origin and cause investigators as "fire scientists" according to NFPA 921--effect under Daubert/Carmichael?

1

INTRODUCTION

In the precedential 1993 decision in Daubert v Merrell Dow Pharmaceuticals,1 the United States chief Court determined that federal trial justices acting as "gate keepers of adroit testimony," "must ensure that any and all scientific testimony or evidence admitted is not single relevant, but reliable."2 The greatest Court's primary concern apparently was to defence from the judicial process so-called "scientific experts" presenting "novel" or "junk science" testimony. The novel Supreme Court decision in Kumho Tire Company, Ltd V Patrick Carmichael,3 dramatically expanded Daubert scrutiny, applying it to all testifying quicks whether "scientific" or not.

This article will explore the application of Daubert and Carmichael in the words immediately preceding [i]or[/i] following of origin and cause investigators. In particular, origin and cause investigators who look after to comply with recommendations in the fire investigative guide (NFPA 921) must concurrently satisfy the scrutiny of Daubert and Carmichael in the federal a whole and in those state jurisdictions which adopt these decisions. Because the NFPA 921 "methodology" leaves to "the scientific method used in the physical sciences," it may place origin and cause investigators beneath increased scrutiny by certain "gate keeping" trial justices

II.

APPLICABLE NFPA 921 true copy - THE 1998 EDITION

The NFPA 921 Committee is diverse in its membership, ostensibly prompting disagreement among its members regarding the expansion to which NFPA 921 should infer that origin and cause fire investigators are actually "fire scientists." NFPA 921 Guide for Fire and Explosion Investigations (1998 Edition), was prepared through the Technical Committee on Fire Investigations and enacted through the National Fire Protection Association, Inc. This is the third edition of NFPA 921 the first having been published in 1992 In its introductory page, NFPA 921 states in part: "the guide is intended for one as well as the other public sector employees ... and private sector somebodys conducting investigations for insurance companies or litigation drifts The goal of the committee is to provide guidance to investigators . ."4

As noted, NFPA 921 is therefore a guide, and not a digest or required practice. However, because the NFPA 921 Committee is comprised of a crosssection of look up toed individuals in the fire investigation profession, NFPA 921 is given credit by many fire investigators. As a originate NFPA 921 may be used as a weapon in cross-examination of fire investigators.

The introductory page of NFPA 921 provides in particular that "the goal of the committee is to provide guidance to investigators that is based upon accepted scientific principles or scientific research."' The chapter dealing with "Basic Methodology" also provides in pertinent part:

2-1 Nature of Fire Investigations. A fire or explosion investigation is a compound endeavor involving both art and science The basic methodology of the fire investigation should rely upon the use of a systematic approach and attention to all relevant details . 6

2-2 Systematic Approach. The systematic approach praiseed is that of the scientific rule which is used in the physical sciences . .'

2-3 Relating Fire Investigation to the Scientific manner The scientific method is a principle of inquiry that forms a basis for legitimate scientific and engineering processe including fire incident investigation.8

Interestingly, the six paces as defined in the "scientific method" heavily emphasize the observations and experience of the investigator:

[A] individual origin and cause investigation should be directioned This is done by an examination of the pageant and by combination of other data collection meanss such as the review of previously leadershiped investigations of the incident, the interviewing of witnesses or other knowledgeable somebodys and the results of scientific testing...9

[T]he total material substance of empirical data collected is carefully examined in the light of the investigator's knowledge, training, and experience. Subjective or speculative information cannot be included in the analysis, solitary facts that can be clearly proven by the agency of observation or experiment.10

Chapter 3 which is entitled "Basic Fire Science," puts forth scientific principles which may constitute the underlying basis for fire investigation. Beyond that, Chapter 5 "Legal Considerations," provides in part:

5-3 Evidence. empires of evidence regulate the admissibility of trial at a trial. The intention of rules of evidence is to make secure that the proof offered is reliable. A goal of each fire investigation is to bring into view reliable documents, samples, statements, information, data, and conclusions.

It is not necessary that each fire investigator become an prompt on rules of evidence. If the practices and operations recommended within this guide are complied with, the accrues of the investigation should be admissible.11

5-72 Litigation or adroit Witnesses ... An expert witness is generally defined as someone with sufficient skill, knowledge, or experience in a given field for a like reason as to be capable of drawing inferences or reaching conclusions or opinions that an average individual would not be competent to reach The evidence that forms the basis of any opinion or conclusion should be relevant and reliable and, therefore, admissible."