Understanding why fire expert testimony is accepted or rejected during litigation can save adjusters time and money, according to experts who presented on the subject during a live streaming session held by the National Association of Subrogation Professionals.
“Fire Experts in Today’s Courts: A Dramatization Legal Update”, was presented last month during NASP’s annual conference held in Reno, Nevada. The panelists included subrogation attorneys Ken Levine, Michael Munger and Raymond Mack, all with de Luca Levine and David Klitsch, the owner of Technical Fire Analysis.
The experts cautioned against receiving a written report too early in a claim in that it could hinder subrogation efforts later.
The session touched upon Daubert factors that apply to fire expert testimony. Daubert refers to the 1993 U.S. Supreme Court decision in the case of Daubert v. Merrell Dow Pharmaceuticals. The Daubert decision defines when expert witness testimony will be permitted. The federal expert witness standard states that expert witnesses are only allowed to testify based on sufficient facts and reliability of testing methods in coming to their conclusion. The factors include:
- Whether the expert theory or technique can be tested;
- Whether the theory or technique can be measured;
- Whether the theory or technique is generally accepted among peers;
- Whether the theory or technique has been subjected to peer review and publication.
The panel experts said that the plaintiff in a case has the burden to prove an expert is qualified. Once expert testimony is submitted, the court may make its decision solely on submitted briefs, sometimes just on testimony and sometimes on both.
Expert testimony is also measured via the National Fire Protection Association 921 guide for fire and explosion. The guidelines apply to both auto and property fires and provides a six step scientific method for collecting evidence to evaluating fire causes.
The panelists presented mock courtroom scenarios to illustrate what could happen on a fire loss where expert findings are accepted or rejected. They recommended that when adjusters receive reports, careful review is necessary to evaluate how the hired experts will be able to demonstrate step by step their sequence on theory.
One way experts are challenged under Daubert is on whether physical testing has been done. The panelists discussed a decision on a case relating to whether physical testing was necessary that was decided in 2015. In Dalton v. McCourt Electric & Intermatic, a 2012 house fire prompted the homeowners to sue an electrician and product manufacturer. The homeowners alleged Intermatic’s light timer had an internal defect, though the loss happened six years after the product was assembled.
Intermatic denied a defect and instead alleged that there was a loose connection due to faulty installation. As a result of the allegation of a product defect, defendants said that physical testing was required. Though no physical testing was completed by plaintiff’s expert, his testimony was admitted because his analysis eliminated the possibility of installer error. His hypothesis as to how the fire started was considered admissible and physical testing was found to be unnecessary.
Regardless of whether expert testimony is allowed or rejected, the court rulings will always be scrutinized by others, experts said.
One last piece of advice the experts offered was that adjusters should look for expert reports that state the expert eliminated all other causes, because that does not provide any affirmative evidence.