From the beginning of my career, I have been involved with the investigation of fire losses. While I do not think my boss who told me to read NFPA 921 my first week as an attorney meant I should read it cover to cover, that is exactly what I did. At first, the guide was more confusing than useful. Reading it, I was a bit lost. There are many technical terms, and I had zero background in fire investigation.
However, even though I did not understand much on that first read of NFPA 921, that book set a foundation for my career. It was interesting—a niche area that I thought could be fun to explore. And today, eight years into my career, I understand the majority of what is in the guide.
Courts have repeatedly held that NFPA 921 is an acceptable peer-reviewed authoritative work and generally accepted in the fire investigation community. One court called it “the Bible for forensic fire scene investigation.” The most recent iteration of NFPA 921 was published in 2017 and has 30 chapters. The original version, published in 1992, had fewer than 20 chapters. The next edition of NFPA 921 is in the works and is scheduled to be released in 2021.
Which sections of NFPA 921 are especially important for an attorney to read and understand to best assist clients in the pursuit or defense of fire claims? Most attorneys should start with Chapter 17 when handling a so-called young fire claim.
In an ideal world, a client will call you immediately after a fire occurs and you can demand preservation of the fire scene and evidence pending an official investigation. Chapter 17 addresses preservation of the fire scene and physical evidence, as well as considerations in documenting the scene and collecting physical evidence.
As I am usually on the defense side of the aisle, I always send correspondence to the claimant’s attorney or representative referring to Chapter 17 and demanding preservation of the scene and physical evidence until the parties can retain their own experts and conduct an origin-and-cause investigation of the scene.
Origin-and-cause fire investigators will tell you that it is much easier to offer an opinion when they have been to a fire scene. Likewise, it is much easier for an attorney to defend or pursue a fire case when he or she has been to the scene exam, or at least had the scene properly documented by an expert.
Chapters 18 and 19 deal with determining the origin and cause of a fire. Both chapters have helpful diagrams that illustrate the scientific method in determining both the origin and cause.
You would be surprised at how many experts are tripped up when confronted with these charts. When NFPA 921 was first published, there was a lot of pushback from members in the fire investigation community. Prior to NFPA 921, the fire investigation community was known to have many “fire whisperers.” These were so-called experts who had no real scientific training and opined as to origin and cause based on subjective and speculative means. Now experts must be able to explain how they arrived at their conclusions based purely on science. No longer is “because I said so” a valid opinion in a fire case. It is imperative that, in a deposition or at trial, an attorney go over how the expert arrived at his or her opinion.
In preparing your own experts for deposition or trial, be sure that they can adequately explain their opinions and how they arrived at them by using the scientific method. This helps experts demonstrate that their methodology and reasoning is scientifically valid and can be applied to the facts of the case, thus reducing the chances that the opinion will be excluded at trial. Many times, a fire case comes down to a “battle of the experts.” Whichever expert has a better explanation of just how he or she determined the origin or cause (or both) of the fire is likely going to win. Further, an expert’s understanding and compliance with the principles set out in NFPA 921 is essential in escaping exclusion. There are many cases that hold that an expert’s failure to adhere to NFPA 921 was a ground to exclude the expert’s opinion.
For example, in Werth v. Hill-Rom, Inc., 856 F. Supp. 2d 1051 (D. Minn. 2012), a newborn receiving oxygen therapy under a baby warmer suffered severe burns when a fire broke out in the bassinet. The hospital hired at least five respected consultants and conducted a lengthy and expensive investigation, which resulted in a 296-page report concluding that a hot particle had broken from the baby warmer, fallen in the bassinet, and ignited the baby’s blanket and linens. Earlier models of the baby warmers were recalled in the 1990s because “hot particles were noted to have fallen from the heating element into the bassinet below.” However, the baby warmer in the Werth matter was a post-recall design with protective covers to prevent that issue, and it was not mentioned in the report that the experts adhered to NFPA 921. The hospital and the family of the newborn collectively filed suit against the manufacturer of the baby warmer, asserting claims for strict products liability, breach of warranty, and negligence.
The manufacturer moved to exclude “as unreliable” the “untested and speculative hypothesis that a hot particle from the infant radiant warmer was the root cause of the fire at issue.” The plaintiff’s investigators amended their opinions to claim adherence to NFPA 921 and stated they “conjured several fire-cause hypotheses, testing them one by one until only one remained.” The court held that the experts’ failure to originally disclose their reliance on NFPA was alone enough to justify excluding their opinion.
However, the court provided another response for the exclusion of the opinion. The court stated, “The Report gives no indication that the experts performed physical tests to show that it was likely, or even reasonable, to conclude a large chip could break from the quartz tube and fall into the bassinet, despite means to prevent that from occurring (the ceramic end cap and protective metal end cover).” The court relied on multiple provisions from NFPA 921 to conclude that “thought experiments” or “cognitive testing” could not be relied on in the context of the circumstances in the Werth case. The court concluded that speculation on how the tube could have fallen into the bassinet was not sufficient absent additional testing; thus, the experts’ opinions must be excluded.
Lastly, the court did not agree with the experts’ attempt to amend their opinions after the motion to exclude was filed. A scheduling quirk caused the motion to be filed prior to the depositions of some of the experts. In those post-motion depositions, the experts opined that a chip off the quartz tube of the warmer could be “ejected” from the end cap. One of the experts even stated that he tested this theory. The court stated that this flew in the face of the plaintiff’s original contention that the experts’ theories could not be tested and contradicted the written reports, which never mentioned a chip ejection.
The court concluded that the experts’ causation opinion was unreliable and had great potential to mislead a jury. The court acknowledged that because the case was tragic and the credentials of the experts were impressive, a jury may “blindly accept plaintiffs’ causation theory while overlooking the shaky foundation upon which it rests.” It was the court’s obligation as gatekeeper to prevent that from happening. The failure to adhere to NFPA 921 was essential in the decision to exclude these experts.
As you can see, failure to adhere to NFPA can be fatal to an expert’s opinion before the trial. In addition to Chapters 17, 18, and 19, there are also helpful chapters near the beginning of NFPA 921. These provide definitions of many fire-related terms and phrases. There are also chapters that set out the basis for methodology and fire science. Still more chapters are tailored to specific types of fires. Even if an expert escapes exclusion prior to trial, NFPA 921 can still be used to discredit or challenge an expert on the stand at trial.
A few years ago, I watched a senior attorney, who had years of experience in fire investigation and a scientific background, try a case. When opposing experts introduced an entirely new theory at trial, this attorney was able to recall sections of NFPA 921 that refuted it. He continued to use NFPA 921 throughout his cross-examination of the experts and revisited it extensively during the closing statement. He did not rely solely on his experts to know the science of the case; he knew it himself and could convey the ideas in layman’s terms to the jury. This particular case involved an appliance fire, which happens to be the subject of an entire chapter of NFPA 921: Chapter 26, in the current edition.
NFPA 921 has revolutionized fire investigation. The importance of the publication for an attorney defending or pursuing a fire case becomes more and more apparent each year. There are hundreds of state and federal cases that cite NFPA 921 in opinions, and that number will only grow. Courts call it the “gold standard” in the field of fire science.
Fire and explosion investigation is an ever-evolving science, and it is not an area you can learn about once and rest on your laurels. If you are intimately familiar and comfortable with NFPA 921, and if you continue to keep abreast of the recent developments in the area, you give yourself an immeasurable advantage in any fire case.