IAAI Article 2011 Method | Daubert Standard | Expert Witness

JOSEPH P.

TOSCANO, IAAI-CFI—Expert opinions regarding the origin and cause of a fire or explosion incident require proof of reliability in the methodologies employed and the conclusions reached to be legally admissible. The opinions of an expert have greater value and reliability in a courtroom when the opinion or hypothesis offered by an expert witness has been properly validated.
BY

Reliability may be determined by examining whether the methodology employed by the witness is consistent with the following; • Published data and industry standards • Is a “reproducible” event with consistent results • Follows acceptable scientific protocols • Is quantifiable (measurable) using known standards The court may consider any number of other factors they may find to be appropriate to consider in reaching a decision on whether to allow or disqualify the testimony of the expert witness. It is vitally important to understand the relationship between the reliability of information and data collected during a fire investigation and the processes or resources utilized to validate that information. The opinion reached by an investigator about the origin and cause of a fire is certainly the ultimate objective, but the methodology utilized to reach the conclusion will determine if the opinion has sufficient reliability to withstand a rigorous challenge in court so as to permit it to be presented at trial. Here’s a good example that relates directly to the field of fire investigation and ties methodology, validation and reliability together. During the course of conducting a fire investigation, an investigator employs a systematic approach in the form of the scientific method. Irregular patterns are observed and the investigator suspects that an ignitable liquid may have been used to initiate and spread the fire. The investigator “recognizes the need” to collect a sample from within the irregular pattern. But precisely where in that pattern area the sample should be taken is partially based upon the training and experience of the investigator … and partially based upon mere luck. The investigator decides to utilize a trained and certified K-9 team in an effort to determine if the K-9 alerts somewhere in the pattern area suggesting a sample should be taken there. This was the very reason that K-9 teams were developed: to provide a tool that can assist the investigator in locating a sample area with a greater probability of obtaining a positive analysis from the laboratory, instead of relying solely upon the investigator’s educated guess.

The methods utilized by an investigator to determine the origin and cause of a fire or explosion and the process of validating the conclusions from that investigation will establish whether the opinion will be deemed legally admissible by the court. Those same factors will then be weighed by the jury in deciding if the expert’s opinions and conclusions will be accepted. Methodology and validation will comprise critical elements of the decision process utilized by the trier of law (judge) to determine if the witness can even offer his/her opinion at trial to the trier of fact (jury).

Three Intertwined Components
These three components in this process, “Methodology, Validation and Reliability,” are intertwined and should be considered by the investigator during each phase of the investigation from the fire scene to the courtroom. The fact that an investigator has reached a conclusion and is confident that the opinion is correct has little importance or value unless the judge and jury agree. What is important (and what will be carefully evaluated and closely scrutinized) is how the investigator reached the conclusion and whether it can be shown that the opinion has been properly validated. If these issues can be satisfactorily presented by the expert, it is likely that the judge and jury will accept the expert’s opinion. In 1993 the United States Supreme Court in Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S 579 (1993) redefined the legal criteria of relevance and reliability for the admissibility of expert testimony in federal court cases. A number of state courts have subsequently adopted the criteria from that case, as well. Since the Daubert decision, many federal and state courts have decided the admissibility of expert opinions based upon the “relevance and reliability” of the opinions under the Daubert standard. “Reliability” is the critical element which the judge will examine as the “gatekeeper of evidence” before the witness will be allowed to testify.

Systematic Approach
The methodology utilized in this example is what many would characterize as “by the book”. The investigator is utilizing a systematic approach and is collecting data, documenting each step in the process, and utilizing available tools and resources to assist in that process. So far this example provides a reliable methodology, but the theory that an ignitable liquid was present in the irregular pattern has not yet been validated. The next step in the process would be to submit the sample(s) collected to a laboratory for instrumental analysis. If the laboratory analysis indicates the presence of an ignitable liquid, the case has still not yet been “solved” but the theory that an ignitable was present and was the likely cause of the irregular patterns has been scientifically validated. The methodology employed was sound and the theory has been properly validated. This scenario is played out every day around the world by fire investigators in search of data, information, evidence and proof of a fire’s origin and cause. The systematic approach has worked up to this point, but the investigation is far from over and this only provides a small piece of the puzzle. The investigator still needs to determine why the ignitable liquid was present, whether it was naturally present, and must consider and eliminate the potential of all other reasonable causes of the fire. This scenario provides a lesson on what every investigator needs to understand and do in order to be successful in any investigative effort. The investigative process is an examination and analysis of the total circumstances before, during and after an event. Any theory developed by the investigator will be challenged by how the investigative process was conducted (methodology) and if the investigator can provide proof to substantiate the theory (validation). Finally whether the theory or opinion can withstand a challenge based upon reasonable alternative theories. Only then can an investigator reach the conclusion that his or her theory is reliable enough to be presented in court. The true test of this will be there in the courtroom.

Proactive Approach
Consider a proactive approach, rather than waiting until you’ve reached the point in an investigation where you are considering information and resources available to validate components of your opinion. The ideal situation would be to establish a working relationship with engineers, laboratories and testing facilities that can be called upon to collaborate during the early stages of an investigation and provide guidance and direction to insure that the investigator isn’t missing anything, is recognizing critical data, and is collecting it properly. Here are just a few other issues an investigator frequently must consider: • Is the laboratory certified? • How many tests are available and what is the recommended order for conducting those tests? • What physical evidence and data need to be collected in order to conduct a test? • How should the investigator collect it? • Where will the test(s) be conducted? • What is the initial consultation policy, procedure and cost (many initial consultations are free) • How will the tests be documented? • Will it be a standard test or a specially designed test? • What are all the options for testing and analysis? Consider visiting laboratories and testing facilities that conduct these types of tests. Create a database of experts and facilities available to meet your needs. Develop a relationship and understanding with those experts and facilities regarding an initial consultation policy to identify your available options. If you are employed by a public safety agency, you should consider identifying every local, state and federal facility and forensic expert that is a potential resource should the need arise. The Bureau of Alcohol, Tobacco, Firearms and Explosives and the National Institute of Standards and Technology are two outstanding examples of professional engineering and scientific testing resources often available to public safety agencies. Your needs may include DNA testing, metallurgy, GC/MS services, full scale ignition scenario validation testing, gas, vapor and dust explosions, spontaneous combustion issues, chemical reactions, or ignitability issues to name just a few. There are engineering and laboratory resources available to help you test and validate virtually all of these issues and many more. In conclusion, whether you are an independent fire investigator, claims manager, public safety investigator, prosecutor or other professional involved in the investigation of fires and explosions, you need to be well-informed regarding the available resources and validation procedures that can confirm and support an expert’s opinion. This knowledge should not be something that is first sought when you have an urgent need, but should be something that is cultivated over time and utilized with regularity to challenge, test and validate theories with the appropriate scientific or engineering resources and protocols. ●

Searching For Validity
More and more investigators find themselves searching for resources that can provide the “validity” component to their opinions. Literally hundreds of fire test methods exist to quantify everything from the ignitability of materials to the issue of flame spread to the heat and smoke generation characteristics of a given fire scenario. Thus, the applicable fire test method for a given scenario should be discussed and agreed to by the investigative team. Many tests may appear similar in terms of equipment and procedure; however, even slight variations between methods could impact the resulting data, along with the resulting outcome of the investigation. Standardized (“industry standard”) methods should be utilized whenever possible; however, when the availability of representative test methods is limited, then testing should be conducted based upon methods that have been modified (i.e., customized) using sound engineering judgment to accurately represent the actual scenario under examination (e.g., ignition, spread, or heat/ smoke generation scenario).

ABOUT THE AUTHOR: JOSEPH P. TOSCANO, IAAI-CFI, Fire Investigation & Litigation Support Specialist, Chilworth Global. He has over thirty years experience in all aspects of the field of fire investigation and case management. He is a nationally and internationally known lecturer and pioneered the development of numerous innovative investigation and educational programs on effective investigative techniques and solutions for the Insurance Industry, Law Enforcement, Fire Service and Legal professions. His expertise includes Fire Origin and Cause, Large Loss Investigation Management, Curriculum Development, Claims Division and SIU Training, Subrogation and Fraud Investigations. Before joining Chilworth Global Mr. Toscano’s professional experience included a twenty year career in law enforcement retiring in 1993 from the Connecticut Division of Criminal Justice assigned to the States Attorney’s Office, New Haven as a Senior Police Inspector, Arson Control & Assistance Program. In 1993 he joined the American Re-Insurance Company Claims Division retiring in 2003 as Vice President, Fire Investigation Specialist. Mr. Toscano has been recognized in both State and Federal courts as an expert witness. Mr. Toscano was a member/alternate of the NFPA 921 Technical Committee, Guide for Fire and Explosion Investigations for over sixteen years and served on the Board of Directors of the Insurance Committee for Arson Control. He is a member of the Training and Education Committee of the IAAI and a member of the CFITrainer.net “Steering Committee”. He has received numerous national awards for his contributions to the advancement of the fire investigation profession.

Sign up to vote on this title
UsefulNot useful