Admitting Expert Testimony That Departs From "The Standard"

In product liability action concerning defective refrigerator which burned plaintiff's home, admitting certified fire investigator expert testimony on the fire's causation; the witness did not apply the "NFPA 921 Guide for Fire and Explosion Investigations," which he had characterized in an earlier, unrelated case as “the standard” for reliability of fire investigations; the opinion was admissible since the NFPA 921 standard “cannot be used when a fire leaves an insufficient burn pattern" on the burned structure, such as from a "total burn,” which occurred in the plaintiff's case, in Russell v. Whirlpool Corp., 702 F.3d 450 (8th Cir. Dec. 17, 2012) (No. 12–1451)

Must an expert witness always employ the established standards addressing a particular problem in his or her profession? Under what circumstances can an expert disregard professional standards?

As it turns out, professional standards may establish one measure of expert reliability, but not the only measure. A recent Eighth Circuit products liability case explained that in assessing fire causation, the National Fire Protection Association (NFPA) 921 supplies a recognized “standard” for assessing expert reliability under FRE 702. The case shows that professional standards do not stand independent of context and where the underlying conditions of the case significantly depart from the conditions for which such standards are set, the expert may employ his “observations and experience,” leaving to the factfinder the challenge of deciding what weight to give the opinion. Russell, 702 F.3d at 457.

In the case, plaintiff Russell filed a products liability action against defendant Whirlpool, the maker of Russell's refrigerator. The plaintiff alleged that the refrigerator was defective and that it's malfunction resulted in his residence burning down. Apparently the fire was so severe that it was not possible to reliably apply the professional standards. Authorities had been unable to extinguish the fire and its damage was extensive. The damage was so complete that it obliterated much of the evidence that is normally used to a fire.

The burn was so extensive that fire authorities decided not to "call the State Fire Marshal to investigate the origin and cause of the fire because ... the house was 'too far gone.' In fact, the fire at the [plaintiff] Russells' home was a 'total burn' as most combustibles had been consumed in the fire and the fire eventually self-extinguished." In the absence of a state fire marshal report on the fire's cause, the plaintiff hired a "certified fire investigator," Giggy, to examine the remaining evidence. After investigating, the expert concluded that "the fire started in the refrigerator." Russell, 702 F.3d at 453.

Prior to trial, Whirlpool's motion to exclude Giggy's expert opinion testimony was denied. Accordingly, during the trial "Giggy testified regarding his investigation of the fire scene, his conclusion, and his methods." This led defendant Whirlpool to seek:

on cross-examination to learn the extent to which Giggy had employed the standards of the National Fire Protection Association (NFPA) 921, Guide for Fire and Explosion Investigations. The NFPA is a nonprofit organization dedicated to fire prevention, and NFPA 921 is a document intended to “establish guidelines and recommendations for the safe and systematic investigation or analysis of fire and explosion incidents.” NFPA 921 § 1.2.1. Whirlpool presented a transcript from a deposition Giggy gave in a different case in 2008 in which [Giggy] stated NFPA 921 is the standard to which fire investigators are held. In his trial testimony in this [Russell's] case, however, Giggy maintained NFPA 921 is merely a guide for origin-and-cause investigations, rather than a standard. Whirlpool again renewed its motion to strike Giggy's opinion at the conclusion of his testimony. The district court stated it believed Giggy's qualifications under Daubert were “pretty shaky,” but denied the motion.
Russell, 702 F.3d at 454.

The jury's verdict was for plaintiff Russell. The defendant appealed, contending that Giggy's opinion testimony was erroneously admitted. In particular, the defendant contended that the witness's "methods deviated from NFPA 921," which even the witness had admitted in a prior deposition in "an unrelated case," was the professionally required standard. The defendant contended that Giggy's testimony should have been excluded. This was particularly so because the witness "did not take many of the actions NFPA 921 recommends," be used in a fire investigation (e.g., such as "considering and eliminating other potential causes of the fire, analyzing burn patterns" for their origin, etc.).

The circuit rejected the contention that the trial judge "should have excluded Giggy's testimony for his failure to comply with a mandatory procedure." Instead the circuit noted that the NFPA standards were context-dependent:

We have held NFPA 921 qualifies as “a reliable method endorsed by a professional organization,” but we have not held NFPA 921 is the only reliable way to investigate a fire. Our NFPA 921 cases stand for the simple proposition an expert who purports to follow NFPA 921 must apply its contents reliably. Accordingly, Giggy's testimony can only be excluded on NFPA 921 grounds if he purported to follow NFPA 921 but did not reliably apply it to the remains of the fire at the Russells' home.

The record shows Giggy did not purport to apply NFPA 921. We take Giggy's 2008 deposition statement to mean only that NFPA 921 is a respected investigative method, not that it is a method an investigator must attempt to deploy in every case, including this one. Moreover, several aspects of Giggy's trial testimony indicate he did not purport to apply NFPA 921. Giggy bluntly and repeatedly stated NFPA is only a guide. He also conceded he did not perform many of the steps NFPA 921 recommends a fire investigator take. Further, he testified NFPA 921 cannot be used when a fire leaves an insufficient burn pattern on the structure that sustained the fire. A “total burn” fire does not leave sufficient burn patterns to use NFPA 921, and the fire at the Russells' home was a “total burn.” In other words, Giggy did not employ NFPA 921 because, given the extent of the destruction, he believed he could not apply the guideline. In light of this evidence, we are convinced Giggy did not attempt to employ NFPA 921 in his investigation, and therefore, his testimony may not be excluded for failure to reliably apply its contents.
Russell, 702 F.3d at 456 (quoting Presley v. Lakewood Eng'g, 553 F.3d 638, 645 (8th Cir. 2009) (affirming the district court's exclusion of expert testimony because the expert “failed to follow ... the standards he purported to follow”); Fireman's Fund Ins. Co. v. Canon U.S.A., Inc., 394 F.3d 1054, 1058–60 (8th Cir. 2005) (affirming the district court's exclusion of expert testimony because the expert “did not apply the principles and methods of NFPA 921 reliably to the facts of the case”)).

The Russell case demonstrates another important aspect of expert opinion testimony. The quality or weight of opinion is a matter for the factfinder. That consideration may be informed by adherence to professional standards, or departures (and reasons for departures) from the standards. In any event, lavish adherence to standards made for a situation decidedly different than the matter in issue, is not entitled to deference.

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