When it comes to fire claims, the National Fire Prevention Association 921 Guide for Fire & Explosion Investigations has been recognized by courts around the country as the “gold standard” against which a fire investigator's methodology and practices can be gauged.
Many decisions have discussed NFPA 921's scientific method and have analyzed an expert's opinions in the context of its recommendations and admonitions.
The NFPA 1033 Standard for Professional Qualifications for Fire Investigator, originally published in 1987, has not gained similar recognition. The technical committee that developed the standard intended to create clear and concise job performance requirements that could be used to determine whether an individual, when measured to the standard, possessed the skills and knowledge to perform as a fire investigator, both public and private.
The 2014 edition of the standard calls for the investigator to have an up-to-date basic knowledge of 16 subject areas beyond the high school level, including fire science and chemistry, thermodynamics and explosion dynamics, hazardous materials and failure analysis, and electricity and electrical systems. The investigator is to remain current in these topics by attending education courses, workshops and seminars or through professional publications and journals. NFPA 1033 sets out numerous areas of specific requisite knowledge and skills which the investigator must possess to conduct the scene examination and documentation, evidence collection and preservation, to conduct interviews, perform post-incident investigation and more.
The detailed nature of the requisite knowledge and skills called for by the standard provide ample cross-examination material for a lawyer challenging a fire investigator's knowledge and qualifications. Few fire cases proceed toward trial without motions to exclude the opinions of the fire investigators involved. The standard would seem to provide an objective measure of qualification that would appeal to judges who must decide challenges to a fire expert's credentials. Courts have been slow to adopt or utilize NFPA 1033 in questioning, analyzing or deciding upon a fire expert's qualifications.
Several court decisions have mentioned NFPA 1033 simply in passing without attempting to use the standard to gauge an expert's ability to testify. (Muth v. Woodring, M.D. Pa., 2015) No courts have excluded a fire investigator due to inability to establish requisite knowledge and skills under NFPA 1033. Indeed, the only decision to approach recognition of NFPA 1033 as an objective standard missed its opportunity.
In McCoy v. Whirlpool Corp., 214 F.R.D. 646, 648 (D. Kan. 2003), homeowners alleged that a Whirlpool dishwasher sold by Sears caused a fire in their home. In their suit against the manufacturer and seller, the homeowners sought to exclude the testimony of the defendants' fire expert, Mr. Dyer. They argued that because Dyer did not reference NFPA 1033 on his resume, there was no evidence that he was qualified to render cause and origin opinions. The Court noted that the plaintiffs did not attempt to point to any respect in which the expert failed to meet NFPA 1033. It found that:
Dyer's report establishes that he possesses a wealth of specialized knowledge in fire investigation and if he does not meet the NFPA standard — in some respect which plaintiffs have declined to articulate — that matter goes to the credibility and weight of his testimony.
The McCoy decision supports an argument that a failure to meet NFPA 1033's criteria is not fatal to the admissibility of the fire investigator's opinion.
While it has been suggested that NFPA 1033 will be taken up by the courts as a tool to measure an expert's qualifications, it remains essentially unused. Nevertheless, fire investigators would be well advised to embrace the standard, comply with it, and note such compliance in their resumes and reports. Investigators should be prepared to document their compliance in anticipation of cross-examination based on NFPA 1033. Claim professionals and attorneys considering employing a fire investigator should confirm that the investigator will stand up to NFPA 1033 scrutiny if the claim proceeds to litigation.
Alexander M. Andrews, J.D., is partner-in-charge of the Columbus office of Ulmer & Berne LLP. His fire litigation practice includes product and general liability defense, first-party fraud and arson investigations, and large-loss fire subrogation. He can be reached at [email protected].
Related: Subrogation and the fire expert
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