Kaye

Amicus Brief of the
Internation Association of Arson Investigators

Michigan Millers Mutual Insurance Corporation v. Benfield
No. 97-2138 (11th Cir.)

STATEMENT OF THE ISSUES

I. What is the intent and scope of the Supreme Court's decision in Daubert as applied to expert scientific testimony?

II. What is the proper application of Daubert to "less scientific" expert testimony?

III. What proper qualifications and kinds of proof are necessary to be considered admissible under Daubert to assist in the determination of the cause?

SUMMARY OF THE ARGUMENT

In order to understand whether Daubert should apply to a cause and origin determination, it is important to understand exactly what the intent and scope of the Supreme Court's Daubert decision was. Daubert was not intended to reach beyond novel scientific questions such as those presented in the Daubert case itself.

The proper standard for the evaluation of expert testimony such as that presented in an arson investigation is the traditional analysis of Rule 702. If the expert is properly qualified under Rule 702, and is not presenting any novel scientific questions, the normal requirements for qualification of expert testimony should apply. For a cause and origin investigator, District Courts have long been capable of sorting out what is and what is not proper qualifications without the assistance of Daubert. The training expertise and experience of the cause and origin investigator, as well as their ability to assist the jury, are the proper focus in determining whether a cause and origin investigator should be allowed to testify in federal court.

ARGUMENT AND CITATION OF AUTHORITY

I. What is the Intent and Scope of the Supreme Court's Decision in Daubert as Applied to Expert Scientific Testimony?

The International Association of Arson Investigators (hereafter "IAAI") anticipates that this Court may be wrestling with issues of how to apply the reasoning of Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993) to an arson investigation. In this brief, the IAAI offers support of its position that the stringent requirements for the novel scientific testimony involved in Daubert should not be directly applied to the cause and origin investigation that is necessary in an arson investigation. To begin this analysis, the intent and scope of the Supreme Court's decision in Daubert must be understood.

In Daubert, the Supreme Court held that the Federal Rules of Evidence supplanted the former Frye "general acceptance test" for determining the admissibility of novel scientific expert testimony and announced a new standard. Although the Daubert Court intended to align the standard for determining the admissibility of novel scientific evidence with the liberal thrust of the Federal Rules of Evidence and announce a rule applicable only to a narrow line of cases, the decisions following Daubert often stretch Daubert beyond its intended meaning. Applying Daubert beyond its intended scope threatens to change the nature of expert testimony beyond what was intended. Particularly, applying a stringent Daubert analysis to testimony concerning a cause and origin investigation stretches Daubert beyond its intended focus. Cause and origin investigations, by their very nature, are "less scientific" than envisioned by Daubert. If a stringent Daubert analysis is applied, the testimony of experts with years of experience and training in their field could be systematically excluded even though their investigations comport with traditional and accepted procedures. Moreover, finders of fact will be denied access to relevant and helpful information, distorting the liberal thrust of the Federal Rules of Evidence. The IAAI respectfully requests that this Court help clarify the application of the Supreme Court's holding in Daubert by limiting it to its intended focus and help end the confusion pertaining to its application.

A. Daubert's narrow focus in on the admissibilitv of novel and untested scientific techniques and methodologies.

Daubert and its progeny emphasize that Daubert's narrow focus is on novel and untested scientific techniques and methodology. Although expert opinion provides powerful and necessary information at trial, it is also potentially misleading and therefore must be evaluated under the Rules of Evidence. Jack B. Weinstein, Rule 702 of the Federal Rules of Evidence is Sound: It Should not Be Amended, 138 F.R.D 631 (1991). Daubert recognizes that novel and untested scientific techniques present an even greater risk of misleading the jury. Daubert, 113 5. Ct. at 2798. Therefore, Daubert requires that the trial court scrutinize novel scientific testimony at an even higher standard than other expert testimony to ensure that all evidence presented to the jury is reliable, not merely "speculative." Id. at 2795. See also United States v. Jones. 107 F.3d 1147, 1158 (6th Cir. 1997); Compton v. Subaru of Am., Inc. 82 F.3d 1513 (10th Cir. 1996). In order for Daubert's more rigorous analysis to apply, however, the subject of the expert's opinion must be "novel scientific knowledge" and be "derived by the scientific method." Daubert, 113 S. Ct. at 2795; Lappe v. American Honda Motor Co., Inc., 857 F. Supp. 222 (N.D.N.Y. 1994). Iacobelli Const., Inc., v. County of Monroe 32 F.3d 19 (2d Cir. 1994). The Supreme Court noted that Daubert's analysis focuses solely on the "principles and methodology, not the conclusions they generate." Daubert, 113 S. Ct. at 2797. Focus should be on whether the expert's conclusions are based on valid scientific knowledge so that opinions relying on mere speculation are excluded. Ambrosini v. Labarraque, 101 F.3d 129, 134 (D.C. Cir. 1996); In Re Paoli R.R. Yard PCB Litigation, 35 F.3d 717 (3d Cir. 1994). Under this standard, trial judges must evaluate scientific processes, but be careful not to decide the correctness of the expert's conclusion. Joiner v. General Electric Co.. 78 F.3d 524 (11th Cir. 1996). In effect, a trial court cannot hold an expert's testimony inadmissible because he does not believe the conclusion is correct. Daubert did not instruct the trial judge to perform the fact-finding function of the jury. The impact of Daubert is narrow because it focuses the trial court's scrutiny only on novel and untested scientific reasoning and methodology to ensure the techniques employed are reliable. It has no bearing on the conclusions generated. Moreover, the Daubert Court intended to lessen the standard for determining the admissibility of novel scientific evidence to align it with the "liberal thrust of the Federal Rules [of Evidence] and their general approach of relaxing the traditional barriers to opinion testimony." Daubert, 113 5. Ct. at 2794. According to Rule 702 of the Federal Rules of Evidence:

If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact at issue, a witness who is qualified as an expert by knowledge, skill, experience, training or education, may testify thereto in the form of opinion or otherwise.

Thus, experts, as long as they are qualified in the traditional manner, have wide latitude as to the subject matter of their testimony.

Specifically, the Daubert Court delineated between [sic] the role of the district judge and the adversarial system. It described the judge's role as "gatekeeper," to ensure that the evidence presented to the jury is reliable and relevant. Daubert, 113 5. Ct. at 2799. On the other hand, it emphasized that the adversarial system and the capabilities of the jury provide a more rigorous analysis of the evidence presented. The Supreme Court explained, "vigorous cross-examination, presentation of contrary evidence, and careful instruction on the burden of proof are the traditional and appropriate means of attacking shaky but admissible evidence." Id. at 2798. See United States v. 14.38 Acres of Land. 80 F.3d (5th Cir. 1996); United States v. Jones, 107 F.3d 1147, 1158 (6th Cir. 1997); Tassin v. Sears, Roebuck & Co., 946 F. Supp. 1241 (M.D. La. 1996); Smith v. Ford Motor Car, 882 F. Supp. 770 (D. Ind. 1995).

Regardless of this specific language, the cases following Daubert apply its holding in a variety of ways, often expanding its specific holding. Daubert however, was not intended to rework federal evidence law or supplant the adversarial system. Instead, it was intended to follow the liberal thrust of relaxing the Federal Rules of Evidence as applied to expert testimony.

B. Daubert's Progeny.

There is a clear line of cases that did not apply a stringent Daubert analysis, but allowed a "less scientific" method due to the nature of the investigation. This line of cases recognizes that Daubert's scope is limited and cautions trial courts not to extend Daubert beyond its intended meaning. See McCulloch v. H.B. Fuller Co., 61 F.3d 1038 (2d Cir. 1995); Compton v. Subaru of America, Inc. 82 F.3d 1513, 1519 (10th Cir. 1996). In this line of cases, the courts continue to apply a Rule 702 analysis to determine the admissibility of expert's opinions. Under Rule 702, a witness qualified as an expert by knowledge, skill, training or education may testify to "scientific, technical, or other specialized knowledge [that] will assist the trier of fact to understand the evidence or to determine a fact at issue."

In these cases, the courts have found Daubert inapplicable because the expert opinion at issue derives from a "less scientific" investigation. Thus, a stringent Daubert analysis does not "fit" or create true issues for the trial court to decide. Credibility issues may still exist, but they are properly left to the finders of fact to decide. In general, the trial courts find a stringent Daubert analysis inapplicable when the testimony is non-scientific, when the methodology does not approach the outer boundaries of scientific knowledge, and when the evidence is derived from experience and training. The IAAI asks this court to recognize these distinctions.

In United States v. Jones 107 F.3d 1147, 1158 (6th Cir. 1997), the court clearly delineated [sic] between Daubert's application to scientific expert testimony and non-scientific expert testimony. In this case, the court addressed a claim that a handwriting expert's testimony should be excluded under Daubert. The court rejected the claim, clarifying that [sic]:

Daubert does not create a new framework for analyzing proffered expert testimony based upon 'technical' or other specialized knowledge. Daubert provides a 'flexible framework to aid district courts in determining whether expert scientific testimony is reliable. If that framework were to be extended to outside the scientific realm, many types of relevant and reliable expert testimony that derived substantially from practical experience would be excluded. Such a result would turn Daubert, a case intended to relax the admissibility requirements for expert, scientific evidence, on its head.

The court noted further that the courts have accepted and recognized handwriting analysis as a field of expertise. Thus, the court found that Daubert has no bearing on the expert's testimony because handwriting analysis does not constitute a novel scientific technique.

Similarly, in United States v. Sinclair 74 F.3d 753 (7th Cir. 1996), the court held that "Daubert does not create a special analysis for answering questions about the admissibility of all expert testimony. Instead, it provides a method for evaluating the reliability of witnesses who claim scientific expertise." In this case, the court rejected a claim that Daubert applies to the testimony of a witness claiming technical legal expertise. Id. at 757. Instead, the court applied Rule 403 of the Federal Rules of Evidence.

II. What is the Proper Application of Daubert to "less scientific" Expert Testimony.

A. Daubert only applies to scientific methodology and techniques approaching the outer boundaries of traditional scientific knowledge.

Daubert only applies to scientific methodologies and techniques approaching the outer boundaries of traditional scientific knowledge. In Lappe v. American Honda Motor Co., 857 F.Supp. 222 (N.D.N.Y. 1994), the district court held that a strict Daubert analysis was inapplicable to the testimony of a liability expert who testified to design defects. The court held:

Daubert only prescribes judicial intervention for expert testimony approaching the outer boundaries of traditional scientific and technological knowledge . . . [here], his opinions are based on facts, and investigation and traditional mechanical expertise. More important, the expert's opinions are supported by rational explanations which reasonable men might accept, and none of his methods strike the court as novel or extreme.

Id. at 228. In so holding, the court rejected the claim that the expert lacked adequate scientific basis to support his theories of product defect because of the failure to take photographs, perform physical tests on the accident vehicle, and document measurements in his reports.

Instead, the court found that the application of Daubert in the present action "would require an expansion of the Supreme Court's language beyond its obvious scope and meaning." Id. at 228. See also Iacobelli Const. Inc. v. County of Monroe, 32 F.3d 19 (2d Cir. 1994) (finding affidavits summarizing data determined not to be the kind of "junk science" that Daubert meant to address); Edwards v. Atro S.P.A., 891 F. Supp. 1074 (E.D.N.C. 1995) (holding that applying Daubert to a reconstruction of an accident and opinion on a design defect "would require an expansion of the Supreme Court's language beyond its obvious scope and meaning"); Thornton v. Caterpillar Inc., 951 F.Supp. 575, 577 (D.S.C. 1997) (finding that Daubert is to be applied narrowly to controversial and novel scientific evidence); Mensink v. American Grain, 1997 WL 283658 (Iowa) (finding that Daubert is to be used as an aid in determining the reliability of proffered evidence of a complex nature). Thus, the courts agree that applying Daubert to cases that do not approach the outer boundaries of scientific knowledge, expands the Supreme Court's language beyond its obvious scope and meaning.

B. Application of Daubert is unwarranted in cases where expert testimony is based upon experience and training.

Daubert does not apply when the expert does not rely on a clearly outlined principle or methodology. In Compton v. Subaru of America. Inc., 82 F.3d 1513 (10th Cir. 1996), the court considered a claim that the trial court erroneously admitted the testimony of a design expert. In analyzing the application of Daubert the court stated:

The language in Daubert makes clear that the factors outlined by the court are applicable only when an expert relies on some principle or methodology. In other words, application of the Daubert factors is unwarranted in cases where expert testimony is based solely upon experience or training. In such cases, Rule 702 merely requires the trial court to make a preliminary finding that proffered expert testimony is both relevant and reliable while taking into account [that] the inquiry is a flexible one ... In sum, we do not believe Daubert completely changes our traditional analysis under Rule 702. Instead, Daubert sets out additional factors the trial court should consider under Rule 702 if an expert witness offers testimony based upon a particular methodology or technique. Id. at 1518-19.

Applying this standard, the court found the expert testimony admissible because the expert based his conclusions upon general engineering principles and his twenty-two years of experience as an automotive engineer. The court determined that "absent some particular methodology or technique, Daubert simply has little bearing on [the expert's] testimony." Id. at 1519.

Similarly, in United States v. Markum, 4 F.3d 891 (10th Cir. 1993), the court upheld the district court's decision permitting a Fire Chief's testimony based on personal observations, experience as a Fire Chief for 29 years, and observations of fellow fire-fighters. Once again, the court applied a traditional Rule 702 analysis because the court determined that there was no methodology to follow. See also McCulloch v. H.B. Fuller Co., 61 F.3d 1038 (2d Cir. 1995) (holding that conclusion of expert based on academic and practical experience admissible because his analysis "went beyond that of a layman"); Liriano v. Hobart Co., 949 F. Supp. 17l, 177 (S.D.N.Y 1996) (permitting a safety expert with 40 years of experience analyzing safety issues to testify); Smith v. Ford Motor Car, 882 F. Supp. 770 (D. Ind. 1995) (finding that a fire investigator could testify to the cause and origin of a fire based on his experience as a fire investigator). Thus, the case law clearly indicates that a strict Daubert analysis does not apply when the expert bases his conclusions on an investigation relying on his experience and training in a particular field.

In conclusion, this line of cases properly limits Daubert to its intended scope. Testimony is properly admitted under a Rule 702 analysis when the testimony is non-scientific, when the methodology does not approach the outer boundaries of scientific knowledge, and when the evidence derives from experience and training. In these instances, the investigations rely on "less scientific" techniques and methodology. Thus, the trial courts cannot apply a stringent Daubert analysis without taking on a fact-finding role. Amicus to this Court requests that this Court recognize this line of cases and distinguish them from investigations involving novel scientific techniques and methodology.

III. What Proper Qualifications and Kinds of Proof are Necessary to Be Considered Admissible under Daubert to Assist in the Determination of the Cause and Origin of a Fire?

A. Daubert does not apply to determine the admissibility of an expert testifying to the cause and origin of a fire.

A stringent application of Daubert is inapplicable to determine the admissibility of the testimony of an expert witness testifying as to his findings in an arson investigation. A cause and origin investigation does not constitute novel or "junk science" and does not involve a strict scientific analysis. Instead, it relies heavily on the observations and experience of the expert. Insistence on a strict analysis under Daubert will undermine the intent of Daubert and the importance of the observations of experts with years of experience and training in a particular field.

The contention that a stringent Daubert analysis applies to a cause and origin investigation has been explicitly rejected. In Polizzi Meats, Inc. v. Aetna Life & Cas. Co., 93~ F.Supp. 328, 337 (D.N.J. 1996), the court addressed a claim by the plaintiff that the testimony of all of the defendant's witnesses was inadmissible under Daubert "because of a 'lack of scientific proof'" In Polizzi, the plaintiff sought to recover for losses arising out of a fire at its place of business under an insurance policy issued by Aetna. The case required the court to determine whether the fire was of "suspicious origin." Id. at 330. In rejecting the claim that Daubert barred the expert testimony, the court held:

This astounding contention is based on a seriously flawed reading of Daubert. [Citation omitted.] Daubert addresses the standard to be applied by a trial judge when faced with a proffer of expert scientific testimony based upon a novel theory or methodology. [Citations omitted.] Nothing in Daubert suggests that trial judges should exclude otherwise relevant testimony of police and fire investigators on the issues of the origins and causes of fires.

Id. at 336. Thus, the court admitted the testimony of the fire investigators because they were qualified as experts and therefore permitted to testify to their opinions under Rule 702. See also Lott v. Lebon, 687 So. 2d 612 (La. App. 4th Cir. 1997) (applying a Rule 702 analysis to eliminate "expert opinion based on speculation, conjecture and mere possibilities," not Daubert, to the testimony of a fire expert). Thus, Daubert cannot properly be applied to a cause and origin investigation.

B. The admissibility of the testimony of an expert testifying to the cause and origin of a fire should be analyzed under a Rule 702 analysis.

A Rule 702 analysis applies when determining the admissibility of expert testimony to the cause and origin of a fire. In State v. Hales, 474 S.E.2d 328 (S.C. 1996), the court addressed a claim that the testimony of an arson investigator was inadmissible because it was not of assistance to the jury under Rule 702. In Hales, the investigator studied arson investigation, served as a volunteer fire fighter for twenty-seven years, investigated hundreds of fires, and was a certified investigator. At trial, he stated his opinion and then supported the conclusion. The court allowed the testimony finding that the investigator "had sufficient knowledge to form an opinion that the fire was intentionally set." Id. at 331. The court did not require "scientific evidence." Instead, the court allowed the expert to testify based on his experience.

The court explained that because the testimony "was in regard to matters not within the knowledge of the average person," it was helpful to the jury in reaching a decision. Id. at 331. See Beacon Bowl, Inc. v. Wisconsin Elec. Power Co., 501 N.W.2d 788 (Wis. 1993); Brooke Inns., Inc. v. S & R Hi-Fi and TV, 618 N.E.2d 734 (Ill. App. 1993); Guidry v. Louisville Tin & Stove Co., Inc., 613 So. 2d 1114 (La. App. 5th Cir. 1993).

In Commercial Union Insurance Co. v. Basfield, 832 F. Supp. 234 (C.D. Ill. 1993), the court also allowed an experienced fire investigator to testify as an expert witness. In allowing the testimony, the court rejected the claim that the evidence should be excluded because it was "not based on a 'reasonable degree of scientific certainty." Instead, the court found that "(an) expert's lack of absolute certainty goes to the weight of his testimony, not its admissibility." Id. at 236 quoting United States v. Cyphers, 553 F.2d 1064, 1072 (7th Cir.), cert denied, 434 U.S. 843 (1997). The court further noted that "[b]ecause all direct evidence is often destroyed, fire experts must rely on circumstantial evidence in determining the cause of a fire." Id. at 236. See also Pennsylvania Lumbermen's Ins. Corp. v. Landmark Elec., Inc.. 675 N.E.2d 65, 70 (Ohio Ct. App. 1996) (finding the hypothetical testimony of fire investigator that a fire was intentionally set admissible because "situations involving chains of evidence all of which lie within the personal knowledge of any one witness are not unique to the field of expert testimony").

In conclusion, the case law shows that a stringent Daubert analysis does not apply to cause and origin investigations. Instead, the courts apply a Rule 702 analysis to determine whether the expert testimony is relevant and reliable.

CONCLUSION

An application of a strict Daubert analysis to a cause and origin investigation is improper. The Supreme Court made it clear that Daubert was to be used for novel scientific questions -- such as the very issues presented under the facts of the Daubert case. Cases since interpreting Daubert have also chosen to not apply [sic] its strict scientific requirement to expert testimony, such as cause and origin investigations. The IAAI asks this Court to adopt this limited application of Daubert as well.

Respectfully submitted,

Paul W. Burke
Georgia Bar No.095642
880 W. Peachtree Street
Atlanta, Georgia 30357
404/885-1400

updated 1/20/00