Testimony From Fire Investigation Expert Violates National Fire Protection Association Methodology

Court: United States District Court for the Southern District of New YorkJurisdiction: FederalCase Name: Ajala v. W.M. Barr & Co.Citation: 2018 U.S. Dist. LEXIS 205046

Facts

This personal injury suit involved a plaintiff who suffered an injury while using a paint-removal product by the name of Goof Off. The product was manufactured by defendant W.M. Barr & Co., Inc. and sold by defendant Home Depot, Inc. The plaintiff alleged that the product ignited while he was using it to remove latex paint from the kitchen floor. The defendant retained an expert fire investigator, and the plaintiff subsequently filed a motion to exclude the expert’s opinion.

The Expert

The defendants’ fire investigation expert analyzed the plaintiff’s activities leading up to the Goof Off fire in great detail. The expert criticized the plaintiff’s theory that static electricity caused the accident. The expert applied principles of static-electricity formation and discharge which were explained in the NFPA Guide for fire and explosion investigation. He also applied pertinent weather data and scientific literature regarding the conductivity of chemicals like Goof Off.

In his report executive summary, the expert opined that the stove installed at the time of the incident has been removed from the property by the plaintiff and its current whereabouts were unknown.” At deposition, the expert opined that any Goof Off vapors would have left the Goof Off can upon opening, traveled towards the kitchen floor (the vapors being denser than air due to the product’s chemical makeup), and then, due to turbulence resulting from the vapors’ descent, “spread out and then slightly started to rise up, depending on the temperature in the room,” in a manner akin to water “filling a bathtub upside down.” The expert also surmised that a standing pilot light in the plaintiff’s stove was the only possible cause of the fire.

Court’s Discussion

The court found that the expert’s qualifications and expertise were sufficient to discuss the expected behavior of flammable vapors and their interaction with open flames.

The court found the expert’s opinion that the fire was not caused by static electricity to be reliable under Daubert. The plaintiff did not challenge the admissibility of this opinion, however, he challenged the expert’s conclusion that a standing pilot light in the stove near caused the Goof Off to ignite. The plaintiff argued that the conclusion failed the Daubert reliability test because the expert provided no analysis or supporting data to indicate how an ignition via pilot light would have occurred, and whether it was consistent with the incident that took place.

It was determined that the expert’s theory regarding the standing pilot light was reliably grounded based on his technical knowledge as a fire investigator, even if his assumptions, premises, and conclusions were subject to debate. The court found that the expert’s lack of a calculation or experiment proving the feasibility of his theory did not make it unreliable.

However, the court agreed with the plaintiffs that the expert fire investigator may not opine that “the only possible cause of the fire was the ignition of Goof Off vapors via gas stove pilot lights.” This opinion violated the methodology laid out in the NFPA (National Fire Protection Association). It was found that because the NFPA prohibited the expert from suggesting that a pilot light caused the fire, then it must also prohibit him from offering that a pilot light was the “only possible cause” of the fire.

Finally, the court agreed with the plaintiffs that the expert should not comment on whether the plaintiffs or their counsel were responsible for the stove in question not being available for examination.

Held

The plaintiff’s motion to exclude the opinions of the defendant fire investigator expert was granted in part and denied in part.