Feature Story . By Glenn GiBson, Joseph p. Toscano, and Guy e. BurneTTe, Jr.

Playing with Fire

As Seen In June 2007 Issue of

Proper Selection Process Is Critical When Choosing Fire Experts

or years, insurers have been the target of bad-faith legal actions and judgments. These awards have resulted in significant amounts of damages, including punitive damages for sums of money reaching into the millions. Insurers have struggled at times with how to defend themselves against these types of claims. Its time for insurers to begin considering a new question: How do we show we acted in good faith in order to proactively address the potential for bad-faith claims?

the fire. In those cases, this is often the most important testimony the jury will hear. The trial judge and/or jury are considered to be the triers of facts in a case. When they weigh the evidence before them they will give consideration to a number of things including: 1 2 3 4 5 6 7 8 8 J Is the witness believable? Is the witness qualified? Are the witness notes incomplete? What is the attitude displayed? Is the witness prepared? What was the impact of the cross-examination? What is the volume or lack of volume of evidence? Is there evidence of a sloppy investigation? Is there a lack of evidence continuity (i.e., chain of custody)? Is there an issue of the integrity or contamination of evidence?

What Is Evidence?
In many cases, and in virtually all fire litigation cases, the testimony of an expert witness will be used. The expert witness is allowed to do something that no other witness can do in the case; they provide opinion testimony on the meaning of the evidence. In a fire-litigation case, the expert witness can testify as to his opinion of the cause of

When weighing the testimony and evidence, consideration will be given to the burden of proof. In a criminal court matter, the prosecuting attorney is required to prove that the defendant is guilty beyond a reasonable doubt. In a civil matter, the test is to prove that the policyholder committed or procured an intentional act by the preponderance or greater weight of the evidence. Some states require that the insurers evidence be clear and convincing, a more stringent standard. Whether it is a civil or criminal case, evidence must be presented to prove what is referred to as the Arson Triangle: Proof of an incendiary fire cause, proof of motive or some other form of connecting evidence, and proof of exclusive or ample opportunity. Note that actual proof of motive may not be required, depending upon the jurisdiction. In criminal cases, it is never an element of the crime, but may be part of the connecting evidence linking the defendant

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to the crime. In civil cases, most jurisdictions require proof of motive. In all civil cases, there must be evidence that inculpates or connects the subject to the fire. In the course of any trial, many different witnesses from both sides will offer testimony and evidence. Most of those witnesses must testify only to first-hand objective facts, but the rules of evidence allow for an expert witness to render an educated opinion. In an arson case, there could be a number of expert witnesses, including: 1 2 3 4 5 6 7 8 9 Fire scene origin-and-cause investigator Forensic accountant Chemist Metallurgist/materials scientist Fire scientist Fire protection engineer Forensic analyst Locksmith Electrical, chemical, mechanical, or structural engineer

Picking the Right Expert

To narrow things down to the selection of the right fire expert, consider these questions:
1. What is the complete educational background of the investigator? 2. What is the entire working-life experience of the investigator? 3. What specific technical experience do they have in the field of fire investigations? 4. What professional licenses do they carry? Have they ever been suspended or revoked? 5. What professional certifications do they have? 6. What knowledge do they possess on building construction, HVAC systems and building electrical systems? 7. Do their licenses or certifications require continuing education credits? 8. What seminars have they attended in their careers? 9. Do they generally recognize and follow the recommended procedures as outlined by NFPA 921? 10. Are they fully qualified as a fire investigator under the standards of NFPA 1033? 11. Do they follow the scientific method to reach a conclusion on a fire cause? 12. What associations do they belong to? 13. Have they ever published any articles? 14. Have they ever been qualified in court previously as a fire expert? Have they ever been rejected by a court in seeking to be qualified as an expert witness? 15. Have they ever conducted live test-burns to support their fire theories, and if so, was that data used in any analysis of a fire or in any fire modeling? 16. Have they ever done any laboratory work? Who do they use for chemical analysis of samples? 17. Do they have an understanding how fire suppression efforts can impact the determination of the fire cause? 18. How many fire scenes have they served as the prime fire investigator, and what is their record for determining fire causation? 19. How would the investigator handle a situation where they felt subrogation might exist based on initial findings at the scene? 20. Have they ever given evidence from reviewing photographs or laboratory exhibits? 21. What is their reputation with the public authorities? How would they deal with situations where they were kept out of a scene until the authorities had completed their investigation? 22. Does the investigator work alone or for a company? Who is the company? What is their financial stability? Do they have Errors and Omissions insurance? What are the limits? Is the policy still in force? Have they had any claims filed against them? 23. What methods do they use to eliminate accidental causes on a fire investigation? 24. Are they knowledgeable on state or local fire ground hazards? Are they familiar with requirements relating to the handling of hazardous materials? 25. Do they have secure management and control of their evidence in storage? 26. Have they had any formal training in interviewing techniques and note-taking? 27. Can they provide at least three professional references? 28. Are they knowledgeable of the use and limitations associated with using fire modeling or fire models?

Qualifying as an Expert
Before an expert is allowed to present testimony and offer opinions about the ultimate issues in a case, the court first will require the witness to demonstrate the requisite qualifications as an expert in that field. The witness must show some special knowledge or expertise in the field that an ordinary person does not possess. Through background, experience, and training, the witness must demonstrate that he possesses the requisite skills to be accepted as an expert by the court. When this is done, the expert may have to face challenges to their qualifications from both the opposing attorney and the trial judge. For many years, the rule in the U.S. was the so-called Frye Test. This rule was adopted by virtually every court and remained the standard for admitting expert testimony for more than 70 years. Under the Frye Test, the expert was required to show that his methods and conclusions had gained general acceptance in the specific field of his expertise. So long as the expert employed methods that were sanctioned by other experts in the field, the Frye Test could be satisfied. In 1993, the U.S. Supreme Court changed the rule. It adopted the Daubert Test, which charged trial judges with the responsibility of acting as the gatekeeper of evidence in the courtroom to ensure that experts who were testifying were using reliable

and scientifically sound methodologies. The court suggested a four-part test for judges to employ in determining whether an expert was qualified under the Daubert standard. The test included the following: 1 Has the theory or technique been tested, using appropriate standards and controls? 2 Is there a known or potential rate of error for the theory or technique? 3 Has the theory or technique been subjected to peer review by others in the field? 4 Has the theory or technique gained general acceptance and recognition by others in the field? In both civil and criminal arson cases

where the Daubert test is now the law, this has fundamentally changed the way cases are being litigated. Now, an expert testifying in an arson trial must face not only the opposing side of the case, but the judge. An experts findings and conclusions today are given more stringent scrutiny than ever before. At trial, the lawyer or district attorney offering the testimony of the expert will first outline and establish the background of the expert as shown on their curriculum vitae. This will demonstrate why the witness should be qualified as an expert by virtue of their technical expertise. The other side will be given the opportunity to cross-examine the witness on those qualifications, to suggest that the witness is not adequately trained or experienced in the field. In a Daubert ju-

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risdiction, the trial judge will challenge the witness on those qualifications in acting as the gatekeeper of expert testimony. This is often a more formidable challenge than the adverse attorneys cross-examination. A qualified fire expert also should be familiar with NFPA 921: Guide for Fire and Explosion Investigations. This is an investigative guide that was first written in 1992 and was most recently revised in 2004. It states that a fire investigation should be conducted utilizing a systematic approach, and recommends that the scientific method be employed. It also provides the appropriate component steps to accomplish a successful investigation. Perhaps the most significant component of the scientific method is the testing of an experts hypothesis about the fire. Hypothesis testing requires an examination of all known facts and a cognitive and/or experimental challenge of those facts, as well as a challenge of any possible alternative theories. Once a final hypothesis has been reached, it should include the identification of the ignition source, the first fuel ignited, and how the two came together to cause the fire. In addition, the expert should be able to offer proof that his theory has been tested and validated. In a case alleging arson, all reasonable accidental causes must be considered, analyzed, and eliminated for the hypothesis of an incendiary cause to withstand challenge.
A SpeciAl RepRint

Although NFPA 921 is presented to be a guide to assist fire and explosion investigators, the reality is that it has become the prime document upon which any fire investigation will be scrutinized. It is widely considered to be the standard of care for fire investigators.

The Role of an Expert

The role of an expert should not be limited to simply providing an ultimate opinion on a fires origin and cause. Experts should provide consultation and guidance from the scene right into the courtroom, to assist the decision maker on the evaluation of the case, and the strategy to be employed at trial. They should weigh in on matters involving the identification, documentation, collection, and preservation of evidence. Their advice should be utilized on matters involving the development and evaluation of any testing of materials, devices, and scenarios in a laboratory. A fire expert must be able to interact and provide liaison with local, state, and federal officials, as well as insurance professionals. They should be consulted on matters involving the retention of specialized experts including engineers, scientists, forensic analysts and laboratories. They should be competent to develop demonstrative evidence to explain their theories and develop strategies for their testimony at deposition or trial. The expert should be aware of the facts and issues

in that case which will be used to challenge their opinions and should know how to respond effectively to those challenges. The ultimate task of an expert is to make their opinions as fact-based and scientifically verified as possible, and to prove not only that their origin and cause opinion is correct, but that any alternative theory is incorrect. Insurers have an obligation to act in utmost good faith. The foundation for proving this is founded in the quality of your loss adjusters and the effective use and selection of experts. Being able to prove that you have a formal, defined process in place to select and maintain your approved list of experts will not only improve the quality of your decision-making, but will demonstrate to a court your commitment to fulfill your obligations to your policyholders. K Glenn Gibson is an executive general adjuster and CEO for Crawford & Company. He can be reached at glenn.gibson@crawco.ca. Joseph P. Toscano, CFI, works in fire investigation and litigation support for Chilworth Technology, Inc. He may be reached at sandkteach@aol.com. Guy E. Sandy Burnette, Jr., is an attorneyat-law for Guy E. Burnette, Jr. P.A. in Fla. He may be reached at geb@gburnette.com.

Entire contents copyright 2007 by Claims, a publication of The National Underwriter Company. All rights reserved.