fications. Few fire cases proceed toward
trial without motions to exclude the opinions of the fire investigators involved. The
standard would seem to provide an objective measure of qualification that would
appeal to judges who must decide challenges to a fire expert’s credentials. Courts
have been slow to adopt or utilize NFPA
1033 in questioning, analyzing or deciding upon a fire expert’s qualifications.
Several court decisions have mentioned NFPA 1033 simply in passing
without attempting to use the standard to
gauge an expert’s ability to testify. (Muth
v. Woodring, M.D. Pa., 2015) No courts
have excluded a fire investigator due to
inability to establish requisite knowledge
and skills under NFPA 1033. Indeed, the
only decision to approach recognition
of NFPA 1033 as an objective standard
missed its opportunity.
In McCoy v. Whirlpool Corp., 214 F.R.D.
646, 648 (D. Kan. 2003), homeowners al-
leged that a Whirlpool dishwasher sold by
Sears caused a fire in their home. In their
suit against the manufacturer and seller, the
homeowners sought to exclude the testimo-
ny of the defendants’ fire expert, Mr. Dyer.
They argued that because Dyer did not ref-
erence NFPA 1033 on his resume, there was
no evidence that he was qualified to render
cause and origin opinions. The Court noted
that the plaintiffs did not attempt to point
to any respect in which the expert failed to
meet NFPA 1033. It found that:
Dyer’s report establishes that he pos-sesses a wealth of specialized knowledge in
fire investigation and if he does not meet
the NFPA standard — in some respect
which plaintiffs have declined to articulate
— that matter goes to the credibility and
weight of his testimony.
The McCoy decision supports an argument that a failure to meet NFPA 1033’s
criteria is not fatal to the admissibility of
the fire investigator’s opinion.
While it has been suggested that NFPA
1033 will be taken up by the courts as
a tool to measure an expert’s qualifications, it remains essentially unused. Nevertheless, fire investigators would be well
advised to embrace the standard, comply with it, and note such compliance in
their resumes and reports. Investigators
should be prepared to document their
compliance in anticipation of cross-examination based on NFPA 1033. Claim
professionals and attorneys considering
employing a fire investigator should confirm that the investigator will stand up
to NFPA 1033 scrutiny if the claim proceeds to litigation.
Alexander M. Andrews, J.D., is partner-in-charge of the Columbus office of Ulmer &
Berne LLP. His fire litigation practice includes
product and general liability defense, first
party fraud and arson investigations, and
large loss fire subrogation. He can be
reached at email@example.com.
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