“Pyrolysis Doesn’t Meet Daubert Standard”
Whether the result was from bad lawyering or from an expert who got caught relying on literature that he had not thoroughly reviewed, the United States Court of Appeals for the Tenth Circuit recently upheld a trial court decision holding that the concept of “pyrolysis” does not have the scientific support to overcome a Daubert challenge. Truck Insurance Exchange v. Magnetek, Inc., 360 F.3d 1206; 2004 U.S. App. LEXIS 3557 (2004).
Pyrolysis is defined by the NFPA as, the chemical decomposition of a compound into one or more other substances by heat alone; pyrolosis often precedes combustion. NFPA 921 (2004).
The case initiated from a property subrogation suit which arose from a fire at a Colorado restaurant insured by Truck Insurance Exchange. The local fire officials and the carrier’s fire cause and origin investigator concluded that the fire originated in the void space between the basement storeroom ceiling and the kitchen floor. Three fire investigators concluded the light fixture, specifically the ballast contained inside the fixture, caused the fire because no other apparent heat sources existed in the area of origin.
Further analysis of the ballast uncovered that it contained a thermal protector, which was designed to shut off power running through the fixture if the temperature exceeds 232 degrees Fahrenheit. This temperature was well below the approximate 400 degrees Fahrenheit generally believed to be the minimum temperature necessary to ignite wood. All parties agreed that the thermal protector in the ballast continued to function properly even after the fire.
After elimination of other heat sources, the cause and origin investigator testified that despite the fact that the peak temperature of the ballast and the normal temperature of the ballast were below normal wood ignition temperatures, the overheating level was sufficient to cause the fire based on the theory of “pyrolysis”.
The trial court reviewed a Daubert Motion filed by the manufacturer of the ballast, Magnatek, disagreeing that “pyrolysis” could have caused the fire, and held that the opinions expressed as to the cause of the fire by the carrier’s experts were precluded, which warranted summary judgment in favor of Magnatek.
The Appellate Court was requested to review the trial court’s holding, and reviewed the carrier’s expert’s most critical opinion that heat from the ballast, varying between 180 and 300 degrees Fahrenheit, was sufficient to cause one of the furring strips in the ceiling to catch on fire.
The court initially acknowledged that the carrier’s expert, who held advance degrees in physics from Oxford University and the University of Colorado, and who had been investigating fire and explosions for over twenty years was a qualified expert.
The court noted that the carrier failed to introduce evidence of actual experiments conducted by its experts showing that furring strips attached in a ceiling to 5/8 inch gypsum board that held the light fixture could ignite at low temperatures due to pyrolysis.
The crucial factor in the court’s failure to recognize the “pyrolysis” theory as reliable under Daubert was the expert’s reliance on literature which actually cast doubt on the theory of “pyrolysis” as a general scientific principle, and the methodology and adequacy of the experimentation underlying “pryolysis.”
One of the articles relied upon by this expert went so far as to even pronounce in the title of the piece, “Pyrophoric Carbon: The Jury is Still Out.” Further, this expert even testified at his deposition that in order to understand how furring strips could ignite at low temperatures, you would have to have a good theory of pyrophoric carbon and formation…and there isn’t one.
One of the local investigators from the West Metro Fire Protection District was also precluded from testifying that the ballast caused the fire in this case. The court found that this investigator had no evidence that the ballast could generate enough heat to ignite combustibles in the ceiling, and that his opinion was based on assumptions and speculation.
The court noted a significant fact in precluding the West Metro investigator’s opinion was his deposition testimony where he professed adherence to certain investigative standards when examining a fire purportedly caused by an appliance, but yet, he failed to follow certain steps enumerated in this standard, specifically, identification of the ignition temperature of the appliance.
As such, the Federal Appellate Court agreed with the trial court’s determination that the “pyrolysis” lacked the scientific backing necessary to be presented before a jury, and precluded pyrolysis testimony under the Daubert Standard.
Lessons Learned
Digital Photography
In either the Civil or Criminal venue, attorneys handling arson cases have the task of explaining through use of fact witnesses, experts and photographs, how a fire began, where it began and who was responsible for setting the fire.
The use of photographs and diagrams is by far, the most important aspect of the arson case, because it gives the jury a visualization of the fire scene and assists witnesses and experts in explaining testimony and/or opinions.
However, an issue that has been attracting some attention in recent years, is whether digital photographs maintain the same sense of reliability as traditional photographs, so that the courts will accept them as substantive evidence at trial.
Many times, both parties will stipulate to the authenticity of fire scene investigative photographs, and thus, an issue will not present itself at trial. However, digital photography is slowly gaining an understanding as being a type of photography that can easily or readily be altered, and is causing argument in the courtroom from opposing counsel who attack the authenticity and reliability of digital photographs of the fire scene.
In traditional photography, film and certain chemicals create images. The camera takes the picture and the actual image is transferred to the negative, where prints are then made. Many of the issues with respect to the authenticity of traditional photographs can be answered by examination of the original negative.
However, the digital camera works in a different manner. With these types of cameras, images are taken and stored electronically, without the use of film or paper. The digital images are reproduced for the user almost instantaneously. The digital camera contains an apparatus that calculates and assigns numbers to each pixel. The apparatus provides a pixel grid of the image where each cell is assigned a numeric value.
The problem with the digital photograph is that through the use of computers, these images can easily be enhanced or manipulated to include an item in a fire scene that was not there when the photograph was taken, or remove an item from a photograph taken. Nonetheless, these types of concern not only raise issues of reliability and authenticity at trial, but also give additional ammunition to opposing counsel who wishes to attack and discredit the cause and origin investigator and his findings and opinions.
The Courts have not yet addressed the specific issue of whether digital photography is unreliable; however, as enumerated in NFPA 15.2.3.4 through 15.2.3.4.2 (2004), the investigator utilizing a digital camera should also have a back-up set of photographs taken with a traditional camera and/or take measures to properly store digital images and preserve photographs in a manner so that court and/or jury will not be mislead.
Cause and Origin investigators should always expect to face the judge, the gatekeeper in arson litigation, who will make decisions in protecting the jury from unreliable evidence and junk science. As such, while digital photography is certainly convenient in investigation, be aware that opposing counsel and judges will attack the investigator who relies on digital photographs, and cannot adequately identify his or her activities in properly storing any images collected at the fire scene.
Keys to Uncovering Alterations or Manipulations of Photographs
Some Recent Cases discussing the issue of digital images with respect to crime scenes:
State of Washington v. Hayden (1995): Defense counsel objected to the prosecution’s use of digital images in a homicide case. The court permitted the images for use at trial, and the defendant was found guilty. The Appellate Court upheld the case on appeal.
State of California v. Phillips (1995): The San Diego Police Department used digital image processing on a fingerprint in a homicide case. Defense counsel requested a hearing to suppress findings, but the court denied hearing and indicated that the digital processing is a readily accepted practice in forensics and that the image was not altered.
Almond v. State (2001): Defendant challenged convictions at trial court level, arguing that the court admitted digital camera photographs of the crime scene. The Supreme Court of Georgia indicated that the digital photographs were properly authenticated and admitted, and was not aware of a procedure for authentication of digital photographs that was different than that used for authentication and admission of normal photographs.
U.S. v. Anthony Dewayne Allen (2002): The Court, in a supplemental Daubert Hearing, held that despite the expert’s admission that he had no formal training in digital imaging for making footwear impressions, he could testify that a digital image compared to a scanned image taken from the defendant’s shoe could be a match, which implicated the defendant in a bank robbery.
Daubert / Frye Revisited
Now more than ever, expert opinions on cause and origin are being subjected to the tests developed by the courts in Daubert and/or Frye.
Even if the expert survives a Daubert and/or Frye Hearing, many cause and origin investigators are making themselves easy targets for opposing counsel on cross-examination by failing to follow the thorough investigative processes enumerated in NFPA 921.
Many times, opposing counsel is able to effectively elicit testimony from the cause and origin investigator that he or she accepts NFPA 921 as a solid framework for a cause and origin investigation, only to develop through further testimony on cross, that the investigator did not follow and/or implement many of the items the NFPA cites as being adequate steps in conducting a complete cause and origin investigation.
As such, a revisit of Frye and Daubert is beneficial in understanding what the court is viewing as being acceptable and reliable for purposes of trial, and unmasking the pitfalls that some cause and origin investigators have fallen into in recent years.
Frye Test In A Nutshell -Requires the scientific community to reach some consensus as to reliability, and then relies on such consensus to determine the admissibility of the challenged scientific evidence. Blum v. Merrell Dow Pharmaceuticals, Inc., 705 A.2d 1314 (Pa. Super. Ct. 1997)
Basic Daubert Test In A Nutshell -Is the evidence relevant and is it reliable? To make this determination the court performs the following reliability test:
Daubert v. Merrell Dow Pharmaceuticals, Inc., 113 S.Ct. 2786 (1993).
Even with these established standards, some cause and origin investigators are still missing the basics, and subjecting themselves to the harsh world of Daubert or Frye.
The Cause and Origin Investigator’s Worst Nightmare: The Infamous Benfield Case
In the case of Michigan Miller’s Mutual Insurance Company v. Janelle R. Benfield, 140 F. 3rd 915 (11th Cir. 1998), the Daubert analysis was applied to a fire scene investigation. This case attracted great attention within the fire investigation community.
The case involved a house fire in which the insurance company, Michigan Miller’s Mutual, refused to pay a claim based, in part, upon the fire being incendiary and the involvement of an insured party in setting the fire. As a part of the insurer’s case, a fire investigator with over thirty years experience in fire investigations was called as an expert witness to present his opinion of the origin and cause of the fire.
He testified the fire was started on top of the dining room table where some clothing, papers and ordinary combustibles had been piled together. He examined the fire scene primarily by visual observation and concluded the fire was incendiary based upon the absence of any evidence of an accidental cause, along with other evidence and factors noted at the scene.
After cross-examining the investigator, the plaintiff moved to exclude the testimony under Daubert and the trial court agreed. In the trial court’s ruling striking the expert’s testimony, the judge specifically found that the witness:
. . . cites no scientific theory, applies no scientific method. He relies on his experience. He makes no scientific tests or analyses. He does not list the possible causes, including arson, and then using scientific methods excludes all except arson. He says no source or origin can be found on his personal visual examination and, therefore, the source and origin must be arson. There is no question but that the conclusion is one to which Daubert applies, a conclusion based on the absence of accepted scientific method. . . .
And finally, it must be noted that [his] conclusion was not based on a scientific examination of the remains, but only on his failure to be able to determine a cause and origin from his unscientific examination. This testimony is woefully inadequate under Daubert principles and pre-Daubert principles, and his testimony will be stricken and the jury instructed to disregard the same.
Interestingly, the Court in Benfield initially found the expert to be qualified to render opinions in the area of origin and cause of fires and allowed him to testify, based on his qualifications and credentials as a fire investigator. However, the judge struck the expert’s testimony after it was presented based upon his methodologies in conducting the particular fire scene investigation in that case.
The evidence was undisputed that the area of origin was on top of the dining room table. Therefore, the only issue was the cause of the fire. The expert testified that while he was conducting his investigation, he spoke with Ms. Benfield who told him that when she was last in the house before the fire there was a hurricane lamp and a half-full bottle of lamp oil on the top of the table.
He further testified that he examined photographs taken by the fire department before the scene was disturbed and observed an empty, undamaged bottle of lamp oil lying on the floor with the cap removed (also undamaged), indicating that it had been opened and moved from the table prior to the setting of the fire. He also explained his observations at the fire scene which enabled him to rule out all possible accidental causes.
He concluded that the fire was incendiary, using the “elimination method” long recognized as a valid method of determining fire origin and cause. He could not, however, determine the source of ignition for the fire. More importantly, he did not “scientifically document” his findings on various points and primarily relied upon his 30 years experience as a fire investigator, even as he held himself out as an expert in “fire science” adhering to the “scientific method” in conducting his investigation, as set forth in NFPA 921.
On cross-examination, the expert was asked to define the scientific method and was asked the “scientific basis” for the taking of certain photographs apparently unrelated to the fire itself. The cross-examination continued by attacking each piece of evidence used by the expert that could not be said to be scientifically objective and scientifically verified. The investigator’s determination of the smoldering nature of the fire and the time he estimated it burned before being discovered were discredited as not being based upon scientific calculations of heat release rate and fire spread, but merely the investigator’s observations of the smoke damage and other physical evidence.
The Court noted those points from the cross-examination in finding that the expert’s methodology was not in conformity with the scientific method, relying instead almost exclusively on the expert’s own training and experience, which it held to be inadmissible under Daubert.
On May 4, 1998 the Eleventh Circuit issued its ruling in the Benfield case. The court found the investigator’s fire scene analysis to be subject to the Daubert test of reliability. In reaching this conclusion, the court noted the investigator in Benfield held himself out as an expert in the area of “fire science” and claimed he had complied with the “scientific method” under NFPA 921. Thus, by his own admission he was engaged in a “scientific process” which the court held to be subject to Daubert.
In the Benfield case, various scientifically unsupported and scientifically undocumented conclusions of the investigator were cited as grounds for the determination that his observations and findings failed the Daubert reliability test. A chandelier hanging over the dining room table where the fire started showed no signs of having caused the fire, but the investigator had not conducted any tests or examinations to “scientifically” eliminate it as a potential cause of the fire.
His observations alone were held inadequate. Similarly, his opinion the fire had likely been accelerated with the lamp oil contained in the bottle was rejected under Daubert, since he could not “scientifically” prove there had been oil in the bottle before the fire and he had not taken any samples from the fire debris to scientifically prove its presence or absence at the time the fire was ignited. These and other observations of the investigator were held to demonstrate there was no scientific basis for his conclusions, only his personal opinion from experience in investigating other fires.
Thus, a case where the cause and origin investigator was most likely correct in his finding of the cause of the fire, poor investigative technique and procedure exposed his findings to a Daubert challenge where his opinion was stricken from the jury’s ears.
Fire investigators face significant challenges in presenting their findings to a court of law. They must be able to articulate to the court and prove that a particular method of analysis was utilized and why that method is reliable enough to be considered by a jury.
There will be increased reliance upon authoritative texts and studies in the field of fire investigation to meet this challenge. Only when an investigator is properly prepared to present the testimony can it be successfully developed at trial to be considered by the jury.
Good Investigative Practice
SPOLIATION
Pursuant to both the Federal and State Rules of discovery, a party that reasonably anticipates litigation has an affirmative duty to preserve relevant evidence. Spoliation of evidence is not new concept in Pennsylvania law; it existed in this Commonwealth as early as 1898. See McHugh v. McHugh, 40 A. 410 (1898)
Despite the fact that spoliation is not new, the courts find themselves still having to address the situation in many different types of cases. Obviously, fire cause and origin investigation is a discipline that repeatedly encounters this issue.
Spoliation is defined as follows, the intentional destruction, mutilation, alteration or concealment of evidence, usually a document. Black’s Law Dictionary (1999).
The Superior Court of Pennsylvania has recently addressed the issue of spoliation in two recent fire cases.
In Eichman v. McKeon, 824 A.2d 305 (Pa. Super Ct. 2003), the tenant filed suit against landlord and a furnace repairman, claiming that the furnace repair caused a fire in the rental property. Several months post-fire, the tenant and his expert attempted to gain access to the property, but were not allowed to enter as the property was deemed unsafe. The next day, the building was demolished, but the landlord had preserved the furnace at issue prior to demolition.
A defense verdict was eventually entered in favor of the landlord and furnace repairman, and the tenant sought judgment in her favor, by asserting that the landlord had spoiled the evidence by demolishing the building.
The Superior Court of Pennsylvania reviewed the Pennsylvania rules with respect to preservation of evidence and the potential sanctions for failure to do so. The court indicated that the “spoliation test” is a three-pronged test, considering: 1) the degree of fault of the party who altered or destroyed the evidence; 2) the degree of prejudice suffered by the opposing party; and 3) the availability of a lesser sanction that will protect the opposing party’s rights and deter future similar conduct.
The court specifically looked at the fact that the local municipality made the determination that the property was unsafe and that is should be demolished. As such, the court realized that the degree of fault by the landlord for failing to preserve the fire scene was minimal. The court noted that significant photographic and documentary evidence from inside the building was available to the tenant, and an independent investigation was conducted by the local fire marshal, which was available to the tenant.
Additionally, the court was aware that the furnace had been removed by the landlord and was also available for inspection by the tenant and/or her expert. Given the facts presented and considering those facts along with the three-pronged spoliation test, the court concluded the lower court’s instruction to the jury for an adverse inference against the landlord and furnace repairman was a satisfactory sanction, and failed to reverse the trial court’s holding.
In Oxford Presbyterian Church v. Weil-Mclain Company, Inc., et al., 815 A.2d 1094 (2003), the Superior Court of Pennsylvania was asked to review the church’s appeal of the trial court’s decision finding in favor of the defendant, Oil Company, with respect to a fire that destroyed the 134 year old church.
The court stated the general rule in Pennsylvania that, “if a party fails to call a witness or other evidence within his or her control, the fact finder may be permitted to draw an adverse interference.” Id. at 1102.
The church alleged that the lower court erred in giving an adverse inference instruction regarding the destruction of physical evidence and did not conduct a proper spoliation analysis when it allowed the inference against the church.
The church preserved the evidence from the fire scene and placed it in a storage facility. Continual requests were made upon the church by the defendant when they were joined to the suit to have access to the physical evidence. At some point, the church’s counsel did inform the defendant that it could not locate the church’s twelve lots of evidence. The church did provide photographs and videotapes of all physical evidence to defendant.
However, the court concluded that by the defendant looking at two-dimensional photographs instead of the actual church organ, blower motor, wiring, kitchen appliances, wood joists and kitchen sub-flooring, could not provide the same degree of information that an examination could have provided, and thus, the defendant prejudiced by its inability to more effectively cross-examine the church’s expert, and also establish its own theory of cause and origin.
The court noted that the adverse inference instruction was the least sever of the potential sanctions for spoliation, which include potentially striking the church’s expert testimony.
Spoliation of evidence is continually a hot topic in the field of cause and origin investigation. Every effort must be taken to preserve as much evidence as possible so as to avoid negative inferences and potential preclusion of the cause and origin testimony at trial.
Don’t let spoliation become an issue:
CONSENT TO SEARCH FIRE-DAMAGED PREMISES
Owner/Occupant Name:
Address of Premises:
Description of Premises:
The undersigned states that he or she is the above owner/occupant, or the authorized individual to give this consent on behalf of the owner, occupant, tenant or other party occupying or possessing the above-described premises.
I hereby give my full permission and consent to __________________, to enter, re-enter and remain on the above described premises, from time to time, for the purpose of conducting an investigation into the cause and origin of a fire occurring on or within the above described premises, and to seize, store and retain evidence related to the cause and origin of that fire, irrespective of the nature of that evidence.
This consent and authorization extends to and includes the entire premises above described, whether or not the same are fire damaged or are immediately involved in fire damage caused by the fire. All areas of the above described premises are included within the scope this consent and authorization to search and seize property.
This consent shall be valid for such period of time as ______________ deems it necessary or appropriate for any investigative purpose or administrative purpose, and includes entry and re-entry over time without limitation unless the owner, tenant or occupant hereby consenting to this search provides in writing to ______________ that this consent is revoked.
This consent and permission is given freely and voluntarily. The undersigned acknowledges that no threats, promises or inducements have been made to entice the undersigned to give this consent or permission, and understands that any object or evidence seized during this search may be used in a court of law in either a civil or criminal proceeding against any person.
Date:
Signature:
Witness: