Fire Chief Survives “Daubert” Challenge and May Testify at Trial

Federal law has changed over the past sixteen years with respect to when an expert can testify.  The U.S. Supreme Court in 1993 ruled in Daubert  [1]  that a judge may allow an expert to give an opinion at trial only if: (1) the testimony is based upon sufficient facts or data; (2) the testimony is the product of reliable principles and methods, and (3) the witness has applied the principles and methods reliably to the facts of the case.  The test is whether the expert’s testimony will assist the trier of the facts in understanding the evidence or determining a fact in issue.

In one of my pending cases, I disclosed the local fire chief to give his opinion at trial as to the origin and cause of a fire.  This fire chief was of the opinion that a fire in a cabin started at the roof as a result of a chimney fire.  My adversary argued that the chief should be precluded by Daubert because:  (a) he was “only” a Level I certified investigator (instead of Level II) and (b) by failing to conduct interviews or take photographs, the chief failed to comply with all the requirements of NFPA 921 (i.e., the “guidebook” for fire investigations).  Fortunately for my client, the judge denied the motion and will allow the chief to testify.

The Court first looked to whether the chief’s opinion was “relevant.”  The Court concluded that “it is incontrovertible that [the chief’s] opinion as to the origin of the fire is relevant.  The Court next found that the fire chief was sufficiently qualified based on his more than 25 years experience and his approximately 16 prior fire investigations he had conducted.   However, the court concluded it was “patently obvious” that a Level II investigator had more experience than a Level I and opposing counsel was free to cross-examine the chief on this.  Even though his investigation may not have completely and fully applied NFPA 921, the chief used an “individually tailored investigative process which was basically consistent with NFPA 921.”  There were “sufficient facts and data to support” the chief’s opinion.  The Court would allow him to testify but “the credibility of his decision may be subject to an attack” upon cross-examination.

Bottom Line:  To be allowed to testify in federal court, an expert must have sufficient qualifications, which include both education and experience.  The expert cannot rely on “junk science,” but must utilize methodology which is scientifically valid and must apply that methodology properly to the facts at issue.

[1]  Daubert v. Merrill-Dow, 509 U.S. 579 (1993).   Federal Rule of Evidence 702 was subsequently adopted to incorporate Daubert 

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