Have you tested your theory? Your risk of exclusion just doubled.

Gerald A. King, J.D., CFEI
Armstrong Teasdale LLP, USA

Karrie J. Clinkinbeard, J.D., CFEI
Armstrong Teasdale LLP, USA

Presented at International Symposium on Fire Investigation, 2012


Both federal and state courts require experts to employ reliable scientific methodologies. Various jurisdictions employ different factors in determining whether an expert’s methodology is scientifically reliable. For years, courts have excluded unreliable expert testimony in fire litigation, an issue previously the subject of Experts Beware: Ignoring the Scientific Method Can Be Hazardous to Your Testimony , an article and presentation included in the ISFI 2010 Proceedings.

Despite the fact that the courts and NFPA 1033, the Standard for Professional Qualifications for Fire Investigators, require fire investigators to employ all elements of the scientific method as the operating analytical process throughout the investigation and for the drawing of conclusions, experts still fail to utilize the scientific method to ensure the reliability of their opinions. Some experts still believe that they can ignore the scientific method by claiming NFPA 921 is only a guide. Although many courts cite NFPA 921 as the “industry standard” for judging an expert’s methodology, other courts exclude experts for the failure to follow the principles articulated in NFPA 921 without ever citing to NFPA 921. An expert’s claim that NFPA 921 is “only a guide” does not relieve the expert from demonstrating that the chosen methodology is scientifically reliable. The legal standards governing the admissibility of an expert’s opinion demand a scientifically reliable methodology. Ignoring the principles set forth in NFPA 921 can and with almost certainty will result in exclusion  of an expert’s opinions (in whole or in part) and open an expert to the risk of third party lawsuits.

This article provides an updated look at these issues and analyzes recent cases where an expert’s testimony has been excluded in fire litigation and, in some instances, the expert has been sued for these deficiencies. Experts are excluded for ignoring facts or relying upon speculative facts. There is a trend towards excluding experts who do not test their ignition theory, particularly in product liability cases. The common theme in these cases continues to be that the expert ignored a step in the scientific method and, therefore, the opinions are unreliable and inadmissible.

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