As one of the most widely utilized publications in the realm of fire and explosion origin and cause investigation, NFPA 921, has a looming presence in the litigation related to losses from fires and explosions. Its full potential as a tool for defense lawyers did not become unleashed until the Daubert framework became entrenched in Federal Courts and began expanding into other jurisdictions. Fifteen years ago defense lawyers who sought to use NFPA 921 in support of a motion in limine to exclude an expert or in support of a motion for summary judgment had a limited array of cases to draw on to convince a trial court judge that NFPA 921 set forth an appropriate methodology for Daubert analysis. Dozens of cases exist now that accept it; fewer, however, are successful.
Matter of Parry, 2018 WL 3150218 (D.Mass. Jun. 27, 2018), and Howard v. Bosch Thermotechnology Corp., 2018 WL 2087259 (E.D.Mo. May 4, 2018), are two recent successes involving NFPA 921.
Matter of Parry stemmed from a vessel that exploded and sank in Provincetown harbor. The plaintiff filed a lawsuit against the company that serviced the vessel during the months preceding the explosion, claiming that its improper maintenance and service were the cause. The defendant filed a motion for summary judgment that hinged on the court’s analysis of the plaintiffs’ experts’ opinions concerning the origin and cause of the explosion. The defendant did not couple the motion with a Daubert motion. Nonetheless, the Magistrate Judge analyzed the expert opinions, deemed them insufficient to carry the plaintiff’s burden, and recommended dismissal of the breach of contract, negligence, gross negligence, and breach of warranty claims.
NFPA 921 played an important role in this decision. The plaintiff was relying on an opinion from its expert, Steven Sundquist, who inspected the vessel. The defendant did not challenge either expert pursuant to Daubert. Instead, the Court used NFPA 921 as point of reference for deciding the issue of proximate cause. Why did this work? Mr. Sundquist identified the ignition source (“gasoline vapors in the engine compartment”) and identified the source of the vapors (“the pressurized side of the engine fuel system”), but classified the cause of the explosion as “undetermined.” As the Court explained, “undetermined” is an appropriate classification “whenever the cause cannot be proven to an acceptable level of certainty….” (citing NFPA 921, § 20.1.4 (2017 ed.)). This was critical for analyzing proximate cause because Mr. Sundquist could not connect the leak in the engine fuel system to the service work that the defendant performed. “Undetermined” classifications are not uncommon. For example, the Massachusetts Environmental Police Sergeant who inspected the vessel also determined that the cause of the explosion was “undetermined,” on that it was “accidental in nature.”
Howard v. Bosch Thermotechnology Corp. arose from a residential home fire. The plaintiff claimed that a defectively designed water heater caused the fire. In contrast to Matter of Parry, the defendant challenged the plaintiffs’ experts under Daubert. The plaintiffs’ had two experts: a fire marshal from the Lake Ozark Fire Protection District (a non-retained expert) and Dr. Kelly Homan, a professor of mechanical engineering. The fire marshal determined that the fire started in the utility room on the lower level of the house and after interviewing the plaintiffs’, he determined that the water heater caused the fire. The relevant portion of his opinion was:
[The fire marshal] reported that the circumstance of [plaintiff] turning off the water intake and [plaintiff] continuing to use hot water “caused the hot water heater to be in the on position with no water to heat or keep the pipe cool (creating [an] air pocket) that I believe heated the pipe to failure and being against the combustable [sic] walls and material over time caused the fire with no one home or close to see and given the time of day the fire [was] able to advance without notice. [G]iven this theory and the closeness to the area of origin I cannot disprove it was a possible cause and find the incident to be ruled accidental and close the file.
Dr. Homan “concluded that if the Bosch water heater were to go into an overheat event, it could produce heat flux on a mounting surface at levels sufficient to cause a fire.”
As a preliminary point, the Court excluded the fire marshal’s testimony as an expert on the origin and cause of the fire because of a procedural issue – plaintiff’s failure to disclose him as an expert in accordance with Rule 26, Fed. R. Civ. P. Nonetheless, the Court analyzed the reliability of the fire marshal under Daubert and excluded him on that basis as well. The fire marshal admitted that he was not “proficient” in Bosch water heaters and only knows “in theory” how they generally work, so the Court did not consider him to have the requisite expertise to offer an opinion. Notwithstanding this conclusion, the Court assumed for purposes of discussion that his extensive experience provided him sufficient expertise as an origin and cause expert, but still excluded his opinion on reliability.
Daubert requires a proffered expert’s methodology to be reliable. NFPA 921 was critical to the Court’s analysis. The court explained, “Although NFPA 921 is not the only approved method of fire investigation, an expert who purports to follow NFPA 921 must apply it reliably, or his testimony may be excluded.” The Court concluded that the fire marshal’s analysis was deficient as follows:
- He did not conduct any tests (e.g., on exemplar appliances).
- He did not recall ruling out other possible sources of the fire.
- He did not recall making observations about the propane system.
- His report included contradictory opinions.
- There was no meaningful peer review. “Bouncing a theory off of coworkers or supervisors to see if they agree is not ‘peer review’.”
The Court excluded Dr. Homan’s testimony as unreliable as well. His work consisted of examining the remains of the water heater and conducting an Internet search for similar incidents. He did not do any testing. He had no experience as a fire origin and cause investigator. He has never performed engineering forensic analysis on any item. He testified, “he could not render an opinion regarding whether the water heater overheated or whether any component of the water heater failed.” Instead, he proffered a design defect opinion but there was no evidence that defect caused the fire, rendering the opinion irrelevant. Finally, he attempted to rely on the fire marshal’s conclusions in the fire inspection export; but because the fire marshal’s opinion was unreliable the Court concluded that that was not a sufficient foundation for Dr. Homan’s conclusions.