Ms. Jacquie Link recently testified in the Supreme Court of British Columbia on behalf of the Plaintiff with successful results for her client. The Judgment is a lengthy document and we have highlighted some of the Judges comments regarding expert testimony in this case. As you will read the Judgment clearly demonstrates the importance of origin and cause experts following the Scientific Method in fire investigation as outlined in NFPA 921 and 1033. Click on the link below to view a copy of the Judgment.
Arc mapping is a technique used in fire investigation and is usually performed by a forensic electrical engineer. It relies on finding the locations of electrical arcs and other electrical faults that occurred during the fire; the locations of the electrical faults can then, under some circumstances, indicate the progression of the fire over time. The basis of the technique is the assumption that, when fire (or hot gases created by the fire) impinges on an electrical line (whether or not protected by a conduit), it will melt the wire insulation and cause an electrical fault at the first point that it reaches on the electrical line. Note that, for this to occur, the electrical line must be energized at the time that fire hits it.
The ultimate goal of arc mapping is often to determine the point of origin of the fire. A common assumption used in reaching this goal is that the fire expands uniformly in all directions as it burns, and maintains a circular shape centered on the point of origin; therefore, when an electrical fault occurs on an electrical line, the point of origin is on a perpendicular to that point. Care must be taken with this assumption, however, because in many cases, fire does not extend uniformly; in particular, large local fuel loads, venting, and air currents have a strong effect on fire progression.
Several other factors affect the locations where electrical faults occur. Electrical faults do not always occur where fire first reaches a conduit, but
preferentially occur at bends in a conduit or locations where wires are pressed together. The elevation of an electrical line has a strong effect on its exposure to heat, since temperatures in a fire are generally highest near ceiling level, except in the immediate vicinity of the point of origin. Protection from the fire is an important consideration: being located within a wall or being covered in fiberglass insulation will offer some protection to an electrical line, and will delay electrical faults.
One must also remember that an electrical fault will only occur if an electrical line is energized — more specifically, if two conductors are at different potentials, and have the capacity to source/sink significant current. An electrical arcing event will often (though not always) cause a loss of power downstream on the electrical line, such as by severing the conductors or tripping a circuit breaker; as a result, a significant part of arc map analysis is determining the order in which sections of electrical lines lost power. In most cases, the electrical faults that occurred furthest downstream occurred first. Electrical faults can also energize conductors or components that are not normally energized, such as conduits (normally grounded). (“Energized” usually refers to a conductor being connected to hot power, as opposed to neutral. More generally, electrical faults occur between points at different potentials, such as between hot and neutral, between hot and ground, or between hot of two different phases.)
Care must be taken to distinguish between electrical arcing and copper that melted due to the high temperatures of the fire. (The term “electrical arcing”, in fire investigation, is often used to refer to “melted copper that indicates that electrical arcing occurred”. “Melted copper” generally refers not to copper that is currently melted, but to “previously melted, resolidified
copper”.) NFPA 921 and Kirk’s Fire Investigation give some guidelines and illustrations on distinguishing between electrical arcing and other melted copper; however, these strict guidelines are the subject of much debate.
In the Province of British Columbia origin and cause investigators must be licensed through the Ministry of Public Safety and Solicitor General, Policing and Community Safety Branch. Under the Security Services Act “a person, who for consideration, seeks or obtains information about the cause of or the responsibility for any fire, accident or incident in which damage to property or injury to any person has occurred” must be licensed as a private investigator. Under the Security Services Regulation “professional engineers, as defined in the Engineers and Geoscientists Act, in the practice of professional engineering as defined in that Act” are exempt only with respect to engineering services but not origin and cause investigations.
It is prudent for adjusters, insurance companies and lawyers utilizing the services of an origin and cause investigator in the Province of British Columbia to ensure that origin and cause investigators they retain are properly licensed. If a company or investigator is not properly licensed in the jurisdiction that the fire occurred their ability to testify in court may be challenged.
There are many documented cases in the United States where the issue of licensing of fire investigators and professional engineers has been addressed in court. One article of interest titled Licensure of Fire Investigators and Professional Engineers: Issues for the Insurance Industry can be viewed at www.interfire.org/features/licensure.
Companies licensed in the Province of British Columbia, the Security Services Act and Security Services Regulations as well as violation tickets issued under the Private Investigators and Security Agencies Act and Security Services Act can be obtained at www.pssg.gov.bc.ca/security/industry. A copy of the Engineers and Geoscientists Act can be obtained at www.bclaws.ca.
In the Province of British Columbia all persons, who for consideration, conduct origin and cause investigations – including origin and cause investigators, engineers, fire consultants and fire analysts – must be licensed through the Ministry of Public Safety and Solicitor General.
PROPERTY – HOMEOWNERS – FIRE INVESTIGATION – COMPUTER FIRE MODELING –ADMISSIBILITY OF EXPERT TESTIMONY – FRYE HEARING
Santos v. State Farm Fire & Cas. Co.
(Sup. Ct., Nassau Co., decided 6/28/2010)
Plaintiff moved pursuant to Frye v. United States, 293 F. 1013 (DC Cir. Ct. Apps.1923) to exclude the testimony of State Farm’s defense computer fire modeling expert witness, Dr. Jozef Urbas. At the time the motion was made, plaintiff contended that Dr. Urbas utilized the computer fire modeling to determine the origin and cause of a fire that occurred at plaintiff’s premises in Bethpage, New York, on January 20, 2006. The court ordered a Frye Hearing.
Pursuant to the Frye test, expert testimony based on scientific principles or procedures is admissible only after a principle or procedure has gained general acceptance in its specified field (People v Wesley, 83 NY2d 417, 422 ). A particular procedure need not be unanimously indorsed by the scientific community but must be generally accepted as reliable (Id. at 423). The Frye test emphasizes “‘counting scientists’ votes,” rather than verifying the soundness of a scientific conclusion (Parker v Mobil Oil Corp., 7 NY3d 434, 447 ). In 1993 the United States Supreme Court decided Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 US 579 which, in federal courts, displaced the Frye general acceptance standard based upon the Federal Rules of Evidence. The Frye general acceptance test, however, continues to be the standard for determining reliability and admissibility of expert testimony in New York (see People v. Wesley, 83 NY2d at 433).
The burden of proof is on the party challenging the evidence to make a prima facie showing that it is a novel theory which is not generally accepted (Matter of Seventh Jud. Dist. Asbestos Litig., 9 Misc 3d 306, 311-312 [Sup. Ct. Wayne Co. 2005]). The burden then shifts to the proponent of the evidence to show by a fair preponderance of the credible evidence that there is sufficient general acceptance of its reliability (Id.). Eugene J. West, retired investigator for the New York City Bureau of Fire Investigation (the Fire Marshal’s Office), testified for the plaintiff that in his capacity as a fire investigator he would get many requests to utilize computer fire modeling but would decline to use it as part of the official investigation, stating that: “We can only speculate as to what was the composition or the exact construction of a room or the type of materials that were used, especially if those things are no longer available to us.”
Mr. West stated that computer fire modeling was never generally accepted as an investigative tool by the New York City Fire Department. It was his opinion that computer fire modeling is not generally accepted in the fire investigative community and cannot be used to determine the cause of a fire. Although computer fire modeling was used in the World Trade Center investigation, it was used for illustrative purposes. Mr. West explained that there is a caveat by the National Fire Protection Association (“NFPA”) that the program is essentially as good as the information put into it.
In support of the introduction of the computer fire modeling evidence, Dr. Urbas testified the NFPA endorses the use of fire modeling in fire dynamics in the use of fire investigation. Dr Urbas further testified that the underlying equations and laws of physics have been generally accepted in the fire science community and that they have been generally accepted as reliable in computer fire modeling.
State Farm’s counsel explained that Dr. Urbas was not coming into court to state the cause and origin of the fire but rather to apply the computer dynamics to see how the fire would spread. Dr. Urbas testified that the results of the fire modeling established that there was a time line that matched a particular origin of the fire, that the damage in the building corresponded to the results of the modeling and that the determination of fire dynamics in that particular theory [the time line] is generally accepted for that purpose. The computer firemodeling essentially verified the hypothesis as to the ignition source or cause of the fire. Dr. Urbas “never said it’s accepted for determining the origin of the fire” and acknowledged that although “[i]t can help determining the cause”, ” it cannot be the sole method of determining the cause” of a fire.
After hearing the testimony of both parties’ experts, Nassau County Supreme Court Justice Thomas Phelan granted plaintiff’s motion to exclude the computer fire modeling testimony: The NFPA Users Manual for 921 states: “To conduct valid modeling and testing it is important that the investigator gather data that is as accurate and complete as possible.” Dr. Urbas agreed that the concept “garbage-in-garbage-out” was applicable (p. 73). Here, the input was based upon regulatory agency tables [for furniture, floors, walls, etc.]*, measurements taken by Dr. Urbas, his inspection of the damage and his reliance upon information received from fire investigators from the insurance company. Dr. Urbas never spoke with the homeowner, the Nassau County fire officials or local firefighters. Dr. Urbas testified that he was unaware that there were paint thinners and solvents in the area where the fire started and that such knowledge would have thrown off the entire calculation (p. 75).
Bryan Duguid & Jeff Landmann
In the recent decision of McDougall v. Black & Decker Canada Inc., the Alberta Court of Appeal clarified the law of spoliation in Canada, articulating a more conservative approach under Canadian law than that found under American law. This decision is important to consider as companies decide when and how to implement “litigation hold” and other policies, and the potential related consequences.
The issue of spoliation arises in circumstances where evidence has been lost or destroyed. In such circumstances, the doctrine of spoliation may be applied to remedy any unfair prejudice existing as a result of the missing evidence.
The McDougall case arose because a family had lost their house in a fire. The local fire department investigated and determined that the fire was caused either by an unextinguished cigar or by the overheating of a drill manufactured and distributed by Black & Decker. As the fire department was commencing its investigation, the McDougalls called their insurer who hired an expert to investigate the cause of the fire. The expert visited the scene and gathered remnants of the drill and other physical evidence, which he took away to have further inspected by an engineer.
After the fire department completed its investigation, the McDougalls demolished the remains of their house and built a new one on the same foundation. The McDougalls later informed Black & Decker of its potential liability for the fire. After a further 18 months, the McDougalls then filed a Statement of Claim suing Black & Decker, alleging that the fire had been caused by the drill. Black & Decker defended and then filed a Notice of Motion seeking to have the McDougalls’ pleadings struck on the basis of spoliation. Black & Decker alleged that it was denied the opportunity to inspect the house and the drill.
The chambers judge accepted that spoliation had occurred. The remedy chosen was to strike the Statement of Claim.
Before the Alberta Court of Appeal (the Court), the McDougalls submitted that the chambers judge erred by finding spoliation without intent, by not leaving the matter of alleged spoliation to the trial judge, and by granting inappropriate remedies.
Madam Justice Conrad, writing for the Alberta Court of Appeal, allowed the appeal and restored the McDougalls’ claim. In doing so, Conrad, J.A. reviewed the jurisprudence regarding spoliation.
Madam Justice Conrad noted that, in England, the law of spoliation is such that, if evidence related to litigation has been intentionally destroyed, a presumption arises that the evidence would not assist the party responsible for its loss or destruction. In contrast, some American courts have been more aggressive, granting a variety of remedies such as striking the claim or disallowing expert reports either before or during trial and, in some cases, have gone so far as to find that spoliation is an actionable tort in itself.
LAW OF SPOLIATION IN CANADA
Conrad, J.A. noted that Canadian courts have followed a fairly conservative path, much more consistent with the approach followed by the English courts than the American courts. She reviewed the leading decision by the Supreme Court of Canada in 1896 in St. Louis v. Canada, in addition to a number of more recent appellate decisions. St. Louis stands for the proposition that spoliation does not occur merely because evidence has been destroyed. Rather, it occurs only where a party has intentionally destroyed evidence relevant to ongoing or contemplated litigation in circumstances where a reasonable inference can be drawn that the evidence was destroyed to affect litigation. If this is demonstrated, a presumption arises that the evidence would not assist the party destroying it. This presumption is rebuttable by other evidence through which the alleged spoliator proves that his actions, although intentional, were not aimed at affecting the litigation, or through which the party either proves its case or repels the case against it despite the presumption.
Conrad, J.A. found that Canadian courts have been slow to expand the law of spoliation, but noted indications that the law in Canada may be changing, leaving open the door that remedies may be available beyond the imposition of a rebuttable presumption.
The Court summarized the following principles applicable to the law of spoliation in Canada:
- Spoliation is the intentional destruction of relevant evidence for the purpose of affecting existing or contemplated litigation.
- The principal remedy for spoliation is the imposition of a rebuttable presumption of fact that the lost or destroyed evidence would not assist the spoliator.
- Other remedies may be available even where evidence has been unintentionally destroyed. These remedies are based on the Court’s rules of procedure and its inherent ability to prevent abuse of process, and may include the exclusion of expert reports and the denial of costs.
- Intentional destruction of evidence is not an intentional tort, nor is there a duty to preserve evidence for purposes of the law of negligence, though these issues remain open.
- Whether spoliation has occurred, and what remedy should be given, are generally matters for trial.
- Pre-trial relief may be available in rare cases. This is generally accomplished through the applicable rules of court, or the court’s general discretion with respect to costs and the control of abuse of process.
Applying these principles to the case at bar, the Court held that Black & Decker had not proven that the McDougalls had intentionally destroyed evidence to affect the litigation. The Court also concluded that it would be inappropriate to determine, prior to trial, whether other available evidence or other measures might balance any prejudice alleged by Black & Decker arising from the fact that it did not get a chance to examine the fire scene or the drill.
ALTERNATIVE RELIEF – RULE 468 OF THE ALBERTA RULES OF COURT
Conrad, J.A. stated that, though there was no evidence upon which the chambers judge could have concluded that there was spoliation, Black & Decker had, in the alternative, sought an order allowing it to examine the expert. The scope of the intended examination related to the facts and circumstances as they existed when the expert attended at the house (before it was demolished), his observations regarding the drill, and his conduct with respect to it. Black & Decker also sought to examine the expert with respect to any expert opinions he may have formed.
While Black & Decker had claimed an entitlement to this remedy on the basis of spoliation and the Court’s inherent power to prevent abuse of process, the Court found that the Alberta Rules of Court provide other means of assisting litigants in the process of fair discovery. Madam Justice Conrad stated that, ordinarily, in this situation, Black & Decker would have been able to apply under Rule 468 for an order preserving the disputed property and allowing it to inspect the same. She held that, though the circumstances rendered any such order of no practical effect, Rule 468 nevertheless allows a judge broad power to make whatever order for preservation or inspection that seems just in the circumstances.
Although Rule 468 refers to “property”, “land” and taking “samples”, Conrad, J.A. held that the Rule gives the Court jurisdiction to make an order for the examination of a person (such as the expert in this instance), who has inspected relevant evidence, where the evidence has subsequently been lost or destroyed before the opposing party has had the chance to inspect it, or to seek its preservation and inspection. Conrad, J.A. ordered the expert to submit to an examination regarding his observations. However, she limited the scope of examination by making clear that the order did not allow any discovery at this stage as to any opinions of the expert.
The decision in McDougall clarifies the law on spoliation in Canada. As stated, spoliation is generally only applicable in those circumstances where relevant evidence has been intentionally destroyed to affect litigation. The intention requirement sets a relatively high bar. Furthermore, the doctrine of spoliation will
generally be applicable only at trial where the trial judge is in the best position to determine if any of the parties have been unfairly prejudiced.
The decision in McDougall also addresses the remedies available where evidence has been lost or destroyed. The law of spoliation is broad enough to encompass remedies other than the striking of a claim, including the exclusion of expert reports and the denial of costs.
The Court also expressly stated that remedies for the destruction or loss of evidence may be available even where the missing evidence was not lost or destroyed intentionally, specifically, under the Court’s inherent jurisdiction to prevent an abuse of process or under Rule 468 of the Alberta Rules of Court. In this manner, the Court has arguably broadened the scope of Rule 468. Although Black & Decker sought relief only under the law of spoliation and the Court’s inherent jurisdiction, the Court nevertheless chose to grant examination of the expert under Rule 468. As a result, Rule 468 is now an additional rule under which parties may attempt to seek an examination of experts and other witnesses who generally could not have been examined in such circumstances under the rules.
USE OF ULTRAVIOLET LIGHT IN ARSON DETECTION
Ultraviolet light is a simple, reliable, cost effective method of arson detection that is too frequently over-looked in arson investigation. UV light not only assists in rapidly locating accelerant residues, it also assists in locating the point of origin of the fire. The color which accelerants glow is affected by heat exposure–the longer an accelerant is exposed to heat (i.e. the origin), the more differentiated its fluorescence color will be from other less exposed areas. Evidence of accelerants is almost always invisible to the naked eye after they have been absorbed in a fire. However, the areas tarnished by accelerants are easily discernible under UV light. Volatile hydrocarbons such as gasoline, kerosene and other petroleum fractions, benzene, acetone, grease, lard, vegetable oils, paints, etc fluoresce when exposed to UV. In addition, UV light can be helpful in locating fragments of incendiary devices since explosive wrappings are frequently fluorescent. The use of UV light enables the investigator to accurately identify locations where samples should be collected for further laboratory analysis. Samples collected in cans and plastic evidence bags can then be heated in warm water to form condensation. Latent accelerant residue may then be brought to the surface and seen under UV light.
UV Light in Comparison to “Sniffers”
UV lamps and sniffers are tools in arson detection, each of which aids the investigator. While it is not recommended that one of these tools be used in place of the other, there are advantages that UV light lends to an investigation:
- Use of UV light is not contingent upon wind conditions.
- The sniffer does not detect specific infected areas, but rather indicates a general area of saturation, making pour pattern sampling difficult.
- The sniffer is effective only two to three days after saturation, while UV lamps have been proven to effectively fluoresce samples up to two months after an incident.
- After a hot lengthy fire, the odors of accelerants are usually gone.
- A sniffer will often pick up false positives.