How to Overcome a "Daubert" Challenge

Many of you may have heard of the US Supreme Court’s 1993 decision Daubert v. Merrill-Dow [1]  in which the high court set a new federal standard for the admissibility of expert witness testimony in court.  What is lesser known is that Congress subsequently amended the Federal Rules of Evidence (“F.R.E”) Rule 702 to incorporate Daubert.  All fire investigators conducting a scene investigation should have a general familiarity with Daubert and F.R.E. 702 – because failure to do it correctly could result in your being barred from testifying in Court.

I’ve seen many expert reports that state something like “It cannot be ruled out that the fire started as result of a defect in the toaster.”  That sentence will get you in trouble every time.  The Court will most likely not allow you to testify as to “it cannot be ruled out.”  The legal standard is “reasonable degree of certainty” – which means you don’t have to be 100% certain, but you have to be reasonably confident your opinion is correct.  Thus, “It is my opinion, with a reasonable degree of certainty in my field of fire origin and cause investigation, that the fire started internal to the toaster” will most likely be good enough to get you into court.  Of course, if you are not “reasonably certain” the fire started at the toaster, then simply be honest and tell your supervisor/attorney/insurance claims handler and they hopefully will close their file and move on.

When is Daubert/F.R.E. 702 applicable?  It is applicable to all lawsuits which are in federal court.  There are four federal District (trial) courts in New York State:  The Northern District (north of Westchester to the Canadian border), the Southern District (Westchester and NYC, the Eastern District (Long Island), and the Western District (points west of Syracuse).  The appellate court overseeing these four New York Courts is known as the Second Circuit Court of Appeals. 

Many states have adopted Daubert as the standard in state court as well.  However, New York has not adopted the Daubert standard for lawsuits pending in New York state courts.  New York state judges follow the old Frye standard. Frye v. United States [2]  was a 1923 District of Columbia appellate case involving an appeal of a murder conviction.  Under the Frye standard, the Court’s role is limited to “determin[ing] whether the experts' deductions are based on principles that are sufficiently established to have gained general acceptance as reliable.”  Marsh v Smyth, 12 AD3d 307, 308 (1st Dept 2004).  Most commentators feel the Daubert standard tougher than the Frye standard – i.e., that it is more difficult to get your expert qualified under the federal Daubert standard than the older and more lenient Frye standard.  My advice is to not spend a lot of time thinking about whether your investigation and report are going to be reviewed under Frye versus Daubert.  Since the Daubert standard is considered tougher, my advice to you is to focus on meeting the Daubert standard.  If you pass the Daubert standard, chances are you will also pass the Frye “general acceptance” standard.

Basically, there are two prerequisites under F.R.E. 702:  (a) that the witness be qualified as an expert in scientific, technical or specialized matters (Stagl v. Delta Air Lines, 117 F.3d 76, 81 (2nd Cir. 1997)) and (b) the expert’s testimony will assist the trier of fact in understanding the evidence and determining the facts at issue.  U.S. v. One Parcel of Property, 930 F.2d 139, 141 (2nd Cir. 1991).  What is required is that the testimony proferred is relevant and reliable.  Daubert v. Merrill-Dow, 509 US 579 at 589-91 and 597 (1993) (Emphasis supplied).  The court’s role as gatekeeper is tempered by the liberal thrust of the Federal Rules of Evidence and the “presumption of admissibility.” Borawick v. Shay, 68 F. 3d 597, 620 (2d Cir. 1995), cert. denied 517 U.S. 1229 (1996).

For experts in fire cases, the Supreme Court stated that in some cases, “the relevant reliability concerns may focus upon personal knowledge or experience,” Kumho Tire Co v. Carmichael., 526 U.S. 137 at 150 (1999), and that “no one denies that an expert might draw a conclusion from a set of observations based on extensive and specialized experience.”   The Federal Rules expressly contemplate that an expert may be qualified on the basis of experience alone.  Allstate a/s/o Lothridge v. Gonyo (“Lothridge”), 2009 1212481 at *4.

Second Circuit courts have consistently maintained that Rule 702 is to be liberally interpreted when evaluating experts’ qualifications. Nimely v. City of N.Y., 414 F.3d 381, 395-96 (2d Cir. 2005); Stagl, 117 F. 3d at 80; Lappe v. American Honda Motor co., Inc., 857 F. Sup 222, 227 (N.D.N.Y 1994); Schwab v. Philip Morris, U.S.A., Inc., 449 F. Supp. 2d 992, 1133 (E.D.N.Y. 2006) (“Assertions that the witness lacks particular educational or experiential background go to the ‘weight, not the admissibility, of the [testimony].’”) (quoting McCullock v. H.B. Fuller Co., 61 F.3d 1038, 1044 (2d Cir. 1995).  A witness may qualify as an expert under Rule 702 on the basis of educational and experiential qualifications in a general field closely related to the subject in question. Schwab, 449 F. Supp. 2d at 1133.  In Stagl v. Delta Airlines, Inc., 117 F.3d 76, 80 (2d. Cir. 1997), the Second Circuit held that the district court erred in finding plaintiff’s expert unqualified to assess alternative safety measures where his expert knowledge in “interactions[s] between machines and people” qualified him to testify on “airline terminal or baggage claim area design.”

In Allstate a/s/o Lothridge v. Gonyo (“Lothridge”), 2009 WL 1212481 (NDNY 2009), plaintiff filed a Daubert challenge claiming that the public fire investigator that investigated a house fire was not “qualified” because, among other things, he was “only” Level I certified (and not the higher Level II).  In rejecting this challenge, the Court found the witness qualified based on his “expertise [] derived by studying general cause and origin investigation principles, remaining familiar with them, and by his practical experience.”  Lothridge, 2009 WL 1212481 at *4 (Exhibit A).

As far as the first prong (“relevance”), Courts should look to F.R.E. 401 and 402 to determine if the proferred testimony is relevant.  Lothridge,, 2009 WL 1212481, *3.  Relevant evidence is defined as “evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.”  F.R.E. 401; Royal Ins. v. Joseph Daniel Const., 208 F.Supp.2d 423, 428 (SDNY 2002).

In assessing the reliability of a proffered expert’s testimony, the Supreme Court has identified five important, but not exclusive, factors:

a)    Whether the theory being offered can or has been tested;
b)    Whether the theory has been subjected to a peer review and publication;
c)    The known or potential rate of error associated with the particular scientific technique underlying the theory;
d)    The existence and maintenance of standards controlling the technique’s operation; and
e)    The general acceptance of the theory in the relevant scientific community.

Daubert, 509 U.S. at 593-94 (1993).

The factors mentioned in Daubert “do not all necessarily apply in every instance in which the reliability of scientific testimony is challenged.” Id. at 151. Federal courts have taken the position that the Daubert court “was not formulating a rigid test or checklist,” and was “relying instead on the ability of federal judges to properly determine admissibility.” See, e.g., Bendi v. McNeil-P.P.C., Inc., 66 F.3d 1378, 1384 (4th Cir. 1995).

“The Second Circuit’s standard for admissibility of expert testimony is especially broad.” Clarke v. LR Systems, 219 F. Supp. 2d 323, 332 (E.D.N.Y. 2002) (citing Boucher v. United States Suzuki Motor Corp., 73 F.3d 18, 21 (2d. Cir. 1996)).  When the basis for the expert’s opinion is his scientific reasoning behind his years of experience and training, his opinion constitutes scientific knowledge which is sufficiently reliable and admissible as expert testimony.  Becker v. National Health Prod., Inc., 896 F. Supp. 100, 103 (N.D.N.Y 1995).  It is not’s the court’s obligation to weigh the “correctness” of an expert’s opinion or to choose between conflicting opinions.  Travelers v. Gen. Elec., 150 F.Supp. 2d 360, 364 (D. Conn. 2001). 

Daubert does not require that an expert must have “tested” his or her own theory in order to be qualified to render an opinion.  The Federal Rules of Evidence specifically provide that an expert may rely on facts or data perceived by or made known to the expert.  Thus, the expert need not conduct her own tests.  Lothridge, 2009 WL 1212481 at *6 (Exhibit A), quoting Gussack Realty Co. v. Xerox Corp., 224 F.3d 85, 94-95 (2nd Cirt 2000).  Expert testimony should not be precluded just because the expert assumed facts not in evidence or did not interview a witness.  Daubert, 509 US at 592 (“[A]n expert is permitted wide latitude to offer opinions, including those that are not based on first had knowledge or observation”); Seeley v. Hamilton Beach/Proctor-Silex, Inc., 349 F.Supp.2d 381, 387 (NDNY 2004).  Where an expert otherwise reliably uses scientific methods to reach a conclusion, lack of independent testing may go to the weight and not the admissibility of the testimony.  Windham v. Circuit City, 420 F.Supp.2d 1206, 1212 (D.Kan. 2006).  What is critical is not whether plaintiff’s expert has done his/her own tests, but whether the proferred expert’s theory is “capable of being tested” and that test can occur within the crucible of cross examination  Lothridge, 2009 WL 1212481 at *6, citing Travelers, 150 F.Supp. at 366).

As the comments to F.R.E. 702 note:  “A review of the caselaw after Daubert shows that rejection of expert testimony is the exception rather than the rule.”  F.R.E. 702 (2000 Amendment).  A court’s task is not supposed to decide the correctness of an expert’s opinion nor choose between competing opinions.  Where movant’s objections go to the weight of the testimony, not the admissibility, such are better suited to be scrutinized through the heat of the adversary system.  Lothridge, 2009 WL 1212481 at *7, citing Ambrosini v. LabarraqueI, 101 F.3d 129, 133-35 (D.C. Cir. 1996).  As the Court stated in a fire case involving a Broan-Nutone bathroom exhaust fan:  “Vigorous cross-examination, presentation of contrary evidence, and careful instruction on the burden of proof are the traditional and appropriate means of attacking allegedly “shaky” but admissible evidence.”  Inam International v. Broan-Nutone, LLC, 2007 WL 4730649 at *4. fn 18) (ND Ga. 2007) (Exhibit B).

The National Fire Protection Association (“NFPA”), a world-renowned leader in fire safety, publishes a guide for fire and explosion investigations that sets forth a basic methodology. See N.F.P.A 921 Guide for Fire and Explosion Investigations (1998) (“NFPA 921”) (sections therefrom at Conlan affidavit Exhibit D). NFPA 921 has previously been recognized by courts in the Second Circuit as a reliable methodology for purposes of evaluations of admissibility of expert testimony under Rule 702. Royal Ins. Co. v. Joseph Daniel Const., Inc., 208 F. Supp. 2d 423, 426 (S.D.N.Y. 2002) (finding the National Fire Protection Association 921 Guide for fire and Explosion Investigations (“NFPA 921”) is a peer reviewed and generally accepted standard in the fire investigation community); Travelers v. General Electric Co., 150 F.Supp. 2d 360, 366 (D.Conn. 2001). NFPA 921 is designed to assist individuals who are investigating and analyzing fire incidents and rendering opinions as to the origin and cause of such incidents.  Thompson v. State Farm, 548 F.Supp.2d 588, 592 (W.D. TN 2008).

As is succinctly explained by the National Fire Protection Association itself, NFPA 921 was “designed to produce a systematic, working framework or outline by which effective fire investigation of origin and cause analysis can be accomplished.” (See, NFPA 921).  It was not designed to encompass all of the necessary components of a complete investigation or analysis of any particular case and, most important, “recognize[s] that time and resource limitations or existing policies may limit the degree to which recommendations in [N.F.P.A. 921] will be applied in any give investigation.” Id.  NFPA 921 was developed as a model for the advancement of fire investigation technology. Id. In light of Daubert and Kumho Tire, it instead has become the standard for fire investigations.

Several cases after Daubert offer examples of the application of Rule 702 to fire investigations conducted pursuant to NFPA 921. In Smith v. Ford Motor Co., 882 F. Supp. 770, 774 (N.D. Ind. 1995), the court allowed an expert to testify in a product liability fire case over objection by the defendant.  In a well-reasoned footnote, the court addressed the defendant’s attack on the expert’s methodology based upon the Daubert factors:

In the present case, because of the nature of the expert witness, the four factors laid out in Daubert are not readily applicable. In cases where a novel scientific theory or technique is presented, these four factors are effective means of determining whether such a theory or technique “will assist the trier of fact understand or determine a fact in issue.” The participation of [this expert] is not based on novel scientific evidence or testimony. In this case, he will participate as a fire and accident investigator and convey opinions relating to the Ford F-150 fire. His opinions are based on facts, and investigation, and traditional automobile body repair and fire and accident investigation expertise.

Id. at 774 n. 3.

The court concluded that from all indications, the expert “adhered to a reliable method of fire and accident investigation.” Id. at 774.

Conclusion

While a fire investigator need not be an attorney and doesn’t have to be able cite case law, he or she should at least have a general understanding of Daubert and FRE 702.  So long as the investigator holds his or her opinion with a “reasonable degree of certainty” and performs the investigation consistent with NPFA 921, that investigator should be allowed to testify in federal court.  The Court will not allow speculation by an expert and will not allow “junk science” to come into the courthouse.  Your report should reference to sections of NFPA 921, Kirk’s, Fire Findings and any other fire investigation authority to show the court that your methodology is consistent with the authorities in your field.

Dan Coffey is a founding member of Bowitch & Coffey based in Albany, NY.  Dan is a member of the IAAI and National Association of Subrogation Professionals.  He is a frequent lecturer and author on New York fire subrogation law and has tried many fire subrogation claims to verdict in New York state and federal courts.  He can be reached at This email address is being protected from spambots. You need JavaScript enabled to view it. .

[1]  509 US 579 (1993)
[1]  293 F 1013 (DC Cir 1923)